Flahive and Comcare (Compensation)

Case [2020] AATA 3044

Flahive and Comcare (Compensation) [2020] AATA 3044 (18 August 2020)

Division:GENERAL DIVISION

File Number(s):      2020/1707

Re:John Flahive

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President Boyle

Date:18 August 2020  

Place:Perth

The Tribunal finds that it is reasonable in all the circumstances to extend the time for the making of the substantive application to 20 March 2020.

..................................[SGD]...................................

Deputy President Boyle

CATCHWORDS

PRACTICE AND PROCEDURE – interlocutory application – extension of time – deemed service of reconsideration decision – documents deemed to have been served by post by operation of Acts Interpretation Act and Evidence Act – electronic service made - Electronic Transactions Act – considerations relating to granting extension of time application – length of delay – awareness of appeal rights – explanation for delay – merits of substantive application – prejudice to respondent – extension of time application granted

LEGISLATION

Acts Interpretation Act 1901 (Cth) – ss 29
Acts Interpretation Acts 1954 (Qld) – s 39(1)
Administrative Appeals Tribunal Act 1975 (Cth) – ss 21(1), 29, 29(1), 29(1)(d), 29(2), 29(2)(a), 29(2)(b)(i), 29(7)
Electronic Transactions Act 1999 (Cth) – s 14A, 14A(2)
Evidence Act 1995 (Cth) – ss 160, 163
Migration Act 1958 (Cth) – ss 501(3A), 501CA(4)(b)(ii)

Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 14, 65(4)

CASES

Brown v Commissioner of Taxation [1999] FCA 563
Carter and Australian Securities and Investments Commission [2020] AATA 809
Danagher and Child Support Registrar (2014) 228 FCR 213
DHDL and Executive Director, Social Security Appeals Tribunal [2010] AATA 377
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
Hewson and Australia Postal Corporation [1998] AATA 71
Hutchinson and Comcare [2018] AATA 4600
John Oates and Secretary, Department of Social Security [1994] AATA 252;(1994) 37 ALD 241
Johnson and Minister for Home Affairs [2018] AATA 3469
Lucic v Nolan (1982) 45 ALR 411
Mason and John Holland Pty Ltd [2018] AATA 415

Minister for Health and Aged Care v Pharmacia and Upjohn Pty Ltd [2001] FCA 75; (2001) 65 ALD 76
Repatriation Commission v Gordon (1990) 21 ALD 145
RLDY and Child Support Registrar [2020] AATA 688
Russell v Minister for Home Affairs [2019] FCAFC 110
Somba and Minister for Home Affairs [2020] AATA 425
Wagner and National Disability Insurance Agency [2020] AATA 1775
Windshuttle v Deputy Federal Commissioner of Taxation (1993) 93 ATC 4992

REASONS FOR DECISION

Deputy President Boyle

18 August 2020

  1. On 20 March 2020 the Applicant filed an application (the substantive application) for the review of a decision of a delegate of the Respondent made on 20 September 2019 to affirm a determination dated 7 August 2019 by which the Respondent declined liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for “left knee chondromalacia”.

  2. By application filed in the Tribunal on 1 April 2020, the Applicant seeks an extension of time…

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Details
AGLC
Flahive and Comcare (Compensation) [2020] AATA 3044
Case
[2020] AATA 3044
Decision Date

CaseChat Overview and Summary

This matter concerned an application for an extension of time to lodge a substantive application with the Administrative Appeals Tribunal (AAT). The applicant, Mr Flahive, sought to appeal a reconsideration decision made by Comcare regarding his workers' compensation claim. The core of the dispute revolved around when Mr Flahive was deemed to have been served with the reconsideration decision, which would commence the 60-day time limit for lodging his appeal.

The AAT was required to determine whether the reconsideration decision met the criteria under section 29(2) of the AAT Act, which dictates that a decision must set out findings on material questions of fact and the reasons for the decision to trigger the appeal period. Furthermore, the Tribunal had to consider the competing arguments regarding the date of service, with Comcare asserting service by post on 20 September 2019 and by email on 23 September 2019, while Mr Flahive claimed to have received the document for the first time on 21 February 2020. The AAT also had to assess the factors relevant to granting an extension of time, including the length of the delay, the applicant's awareness of appeal rights, the explanation for the delay, the merits of the substantive application, and any prejudice to the respondent.

The Tribunal found that the reconsideration decision did indeed satisfy the requirements of section 29(2) of the AAT Act, thereby triggering the 60-day appeal period. While acknowledging that the period between the deemed service and the lodging of the application was not insignificant, the Tribunal was satisfied that there was a reasonable explanation for the delay. Crucially, the Tribunal determined that Mr Flahive had an arguable case on the merits of his substantive application and that granting an extension of time would not cause demonstrable prejudice to Comcare or the public interest.

Accordingly, the Tribunal ordered that the time for the making of the substantive application be extended to 20 March 2020.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal does not accept that there would be any relevant prejudice, either to the Respondent or the public, if an extension of time is granted.Conclusion The Tribunal finds that;(a) while the period between when the Applicant is deemed to have been served with the reconsideration decision and the lodging of the application is not insubstantial, there is a reasonable explanation for the delay for making the application; (b) the Applicant has an arguable case in the substantive application; and(c) there is no demonstrated prejudice to the Respondent or to the public in an extension of time being granted. Accordingly, the Tribunal finds that it is reasonable in all the circumstances to extend the time for the making of the substantive application to 20 March 2020.

Ratio Decidendi

Legal Principle Established

The first issue, or perhaps sub-issue, is whether the relevant document, the letter dated 20 September 2019 (Attachment C to the Respondent’s submissions) (the reconsideration decision) is a document which “sets out the findings on material questions of fact and the reasons for the decision” to start the 60 day period under s 29(2) of the AAT Act. Neither party made any submissions on this point, however, it is clear that both parties proceeded on the basis that the receipt of the reconsideration decision (whenever that was) triggered the commencement of the 60 day period for the closing of the window in which the substantive application could be made. The reconsideration decision, relevantly:(a)advised that it was a reconsideration of the determination dated 7 August 2019 following the Applicant’s request on 23 August 2019 for a reconsideration;(b)advised that the determination dated 7 August 2019 was affirmed;(c)set out the background to the Applicant’s claim and the history of the Respondent’s previous acceptance of a claim, but advised that liability for the Applicant’s claim for left knee chondromalacia was declined on the basis that the accepted knee injury from 2002 had resolved and that ongoing left knee symptoms were due to underlying, longstanding degenerative changes;(d)concluded that the left knee chondromalacia was not caused by or materially contributed to by the workplace incident on 19 September 2002 and set out the medical evidence to support that conclusion; (e)concluded that the left knee chondromalacia was not caused by or materially contributed to by the injury sustained by the Applicant in the workplace incident on 19 September 2002;(f)attached the various medical reports and MRIs upon which the reviewable decision was based; and(g)identified the relevant legislation and advised the Applicant of his right to have the reviewable decision reviewed by the AAT. The Tribunal is satisfied that the reconsideration decision satisfies the requirements of s 29(2)(a) of the AAT Act and that the giving of the reconsideration decision to the Applicant would start the 60 day period for closure of the window for the making of the substantive application.Applicant’s submissions The Applicant’s submission is simple. He says that, as a matter of fact, he received the reconsideration decision for the first time on 21 February 2020 (Applicant’s submissions part (6)) and that therefore the substantive application was made within the required 60 day period. Respondent’s submissions The Respondent contends that the reconsideration decision was despatched to the Applicant on 20 September 2019 by post to PO Box 2156, High Wycombe 6057. This was the address on record for the Applicant and to which the Applicant had directed that correspondence be sent. It is, relevantly, also the address at which the Applicant says he received the reconsideration decision in February 2020. The Respondent contends that the reconsideration decision was also emailed to the Applicant on 23 September 2019.