Flahive and Comcare (Compensation)

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.