Forrest and Comcare (Compensation) - [2024] AATA 3356

Forrest and Comcare (Compensation) [2024] AATA 3356 (12 July 2024)
Division:GENERAL DIVISION
File Number(s):2024/0826
Re:Belle Forrest
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Senior Member D O'Donovan
Date:12 July 2024
Place:Canberra

The Tribunal extends time for making an application for review of the decision made by Comcare on 20 July 2023 to 9 February 2024.
……………[SGD]………………
Senior Member D O'Donovan
PRACTICE AND PROCEDURE – decision by delegate to affirm Comcare’s denial of compensation payments following aggravating incidents in April and May –application for an extension of time – application for review made outside the prescribed time - whether it is reasonable in all the circumstances to grant the extension of time – moderate period of delay – merits of the application – explanation for delay - application
Administrative Appeals Tribunal Act 1975 s 29
Safety, Rehabilitation and Compensation Act 1988 s 5A and 5B, s 16 and s 19
REASONS FOR DECISION
Senior Member O'Donovan
12 July 2024

This is an application pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) seeking to extend the time for making an application for review of a reviewable decision. The applicant lodged the application on 9 February 2024 with respect to a decision that was made on 20 July 2023. The application was brought 143 calendar days beyond the prescribed time for making an application for review.
The applicant submitted a claim for compensation on 18 January 2023. The claim was in relation to major depressive disorder. In her claim form the applicant stated that she first noticed symptoms on 13 August 2019. The claim was accompanied by a medical certificate which certified the applicant as unfit for work from 18 May 2022 to 31 March 2023. It is appropriate to treat this document as a claim for incapacity payments under section 19 Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
On 31 May 2023 the applicant’s claim under section 14 of the SRC Act was accepted. There was an implicit rejection of the claim for incapacity payments which accompanied it. This implicit rejection was the result of liability only being accepted for a closed period which did not include May 2022 and beyond. The applicant sought review of the determination.
On review, the delegate affirmed the determination. Liability to pay compensation under section 14 was accepted in relation to the aggravation of a major depressive disorder. However, as a consequence of a finding that compensation was only payable for a closed period, the applicant’s claim for incapacity for the period starting on 18 May 2022 was again implicitly rejected.
I note that the reviewable decision was expressed in terms which are probably inconsistent with the principles outlined by the Federal Court in Australian Postal Corporation v Oudyn [2003] FCA 318 at [32], Lees v Comcare (1999) 29 AAR 350 at [34] and Rosillo v Telstra [2003] FCA 1628 at [20]. However, it is clear enough that the applicant was seeking compensation under section 19…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Forrest and Comcare (Compensation)

Details

AGLC: Forrest and Comcare (Compensation) [2024] AATA 3356
Case: [2024] AATA 3356
Decision Date: 12 July 2024

CaseChat Overview and Summary

This matter concerned an application by the applicant, Ms Forrest, for an extension of time to lodge a claim for compensation against the respondent, Comcare. The dispute centred on whether the applicant's claim was excluded under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) due to the injury arising from reasonable administrative action. The decision was made by Senior Member D O'Donovan of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether to grant the applicant an extension of time to pursue her compensation claim. This required the Tribunal to consider whether the applicant's lack of capacity to properly consider the matter would impede proper consideration of the claim, and whether there was a potential for merit and substantial entitlement to compensation that warranted granting the extension.

The Tribunal was not satisfied that the applicant's lack of capacity would so impede proper consideration of the claim that it should not proceed. Furthermore, the Tribunal noted that the applicant might be represented by the time the matter proceeded to a hearing. Given that the applicant's case might have merit and her entitlement to compensation could be substantial, the Tribunal concluded that it was reasonable in all the circumstances to grant an extension of time.

The Tribunal ordered that an extension of time be granted to the applicant to lodge her claim, with the new deadline set for February 2024.

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

In circumstances where, the respondent needs to satisfy the Tribunal that the claim is excluded because the injury is the result of reasonable administrative action, I am not satisfied that proper consideration of the matter will be so impeded by the applicant’s lack of capacity that it should not proceed. In any event, by the time the matter proceeds to a hearing it may be that the applicant is represented.Conclusion In these circumstances, notwithstanding that the applicant’s reason for delay is that she changed her mind about her capacity to pursue her claim, I am persuaded that because her case may have merit and her entitlement to compensation may be substantial, it is reasonable in all of the circumstances to grant the applicant an extension of time to February 2024. The extension of time is granted.

Ratio Decidendi

Legal Principle Established

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