Forrest and Comcare (Compensation)
[2024] AATA 3356
•12 July 2024
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'DonovanPRACTICE 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 for the period from 18 May 2022 and that claim was rejected by Comcare. It is also reasonably clear that the basis on which that claim was rejected was that Comcare was satisfied that the ailment which caused the claimed period of incapacity was an aggravation of the applicant’s underlying depression which was the result of reasonable administrative action occurring in April and May 2022. In other words, there was no liability to pay compensation in respect of the incapacity because the cause of the claimed incapacity was not an ‘injury’ as that term is defined in the SRC Act.
The applicant was advised of the decision on 21 July 2023. She did not seek review in the Tribunal until 9 February 2024. As the SRC Act requires that any application for review by the Tribunal be made within 60 days, an extension of time was required under section 29(7) of the AAT Act.
I have received submissions from both the applicant and the respondent. These submissions and the material filed in support of them have been assembled into two bundles by the respondent. My findings of fact are based on the evidence included in those bundles.
The applicant was initially legally represented. However the applicant’s legal representative ceased to act before this application was determined. After the applicant’s representative withdrew, the applicant advised that she agreed to the Tribunal determining the extension of time request on the papers.
STATUTORY FRAMEWORK
Under s 29(7) of the Act, the Tribunal has the power to extend the time for filing an application for review if ‘it is reasonable in all the circumstances to do so.’
It is generally accepted that it is useful to consider this discretion through the framework identified (albeit in a different statutory context) in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176. The framework identifies the following factors as potentially relevant:
(a)The explanation for delay;
(b)The need for finality
(c)Prejudice
(d)The merits of the application
(e)Fairness.
I have applied this framework in determining the applicant’s application for an extension of time, noting of course that the ultimate statutory task that has been set is to decide whether or not it is reasonable in all the circumstances to extend the time for applying for review.
The explanation for Delay
The starting point is that the Parliament has put in place a statutory window for seeking review and attached legal consequences where there has been a failure to comply with it. Understanding why that timeframe was not complied with is important when considering the circumstances.
The reason initially advanced by the applicant for failing to comply with the statutory time frame was that she was too unwell to make reasoned decisions in relation to any appeal. In addition, she was financially unable to afford the fees requested by her lawyer at the time.
There is psychiatric evidence which indicates that the applicant was suffering depressive symptoms for some of the period in issue. I am satisfied that her depression would have impaired her judgment although it was clearly not so debilitating that it prevented her from taking action against her employer on a variety of fronts.
The applicant explained that:
…[she] couldn’t proceed to AAT following the estimate of $40,000 and two year process advised to me by my solicitor and having lost faith in in her submitting the request for reconsideration without having the employer statement or consulting with me.
This suggests that she undertook an assessment of her interests and capacities and decided that she could not proceed. So much is confirmed by the evidence submitted by the applicant.
The applicant sought advice from her then solicitors about appealing to the AAT. The response she got was as follows:
As previously advised, if you decide to appeal to the AAT, we will receive all relevant evidence as part of the AAT process and then obtain an independent medical examination and possibly a counsel advice.
The funds you have placed in trust will cover you up to an appeal to the AAT. If you wish to proceed to the AAT, you will need to pay the full costs of the IME report…As discussed in our initial meeting if you settle a matter during the AAT process, we can recover up to 75% of your legal costs and 100% of your IME costs.
When asked by a friend on 25 August 2023 whether she was going to the AAT, the applicant responded:
I don’t think my health will handle it…
Comcare rejected the claim and recon saying all in line with the policy when point blank isn’t
They do it knowing what the fuck can I do about it
Having a solicitor doesn’t even hold the corruption and fraud to account
It’s so evil
That really fcking tortured me
So up to a possible two years in AAT with a solicitor who can’t hold them to account.
…
Come September I think I just going to send evidence to media.
This exchange indicates that the applicant had thought through her options and decided not to pursue review in the Tribunal. I am satisfied that the cost was part of her decision as was the risk to her health and the delay.
After parting ways with her solicitor, the applicant sought to pursue other remedies. She wrote to a number of Senator and MPs about her plight, sought advice from a local law firm in relation the fact that her position had been abolished, engaged new lawyers in November 2023 who advised her to seek an extension of time to apply to the AAT, complained to the Governor General, made a complaint to the Australian Human Rights Commission, consulted with Victim Support ACT, consulted Legal Aid Canberra, sent a request to the Australian Federal Police and made submissions to the National Anti-Corruption Commission.
She also pursued her rights to obtain her accrued leave with her employer, the Minister for Workplace Relations and the NACC on at least two occasions in November 2023.
Comcare submits that these are not the actions of a person who is debilitated by her psychological condition to the extent that she was not in a position to pursue her statutory rights.
I accept that submission. The evidence suggests that the applicant was aware of her rights and decided not to pursue them. Later she changed her mind. In most circumstances this would provide a very strong reason for refusing an extension of time. In the present matter however there are two matters which are relevant. First, the applicant was unwell. Not the point of being prevented from pursuing her rights but to a degree which affected her ability to make a good judgment about her best interests. Second, the compensation which the applicant might be entitled to if her claim succeeds is likely to be significant. To deny a person suffering from a major depressive disorder an opportunity to pursue valuable rights is not a step that should be taken lightly.
Having said that, this factor does not favour the granting of an extension of time. .
Length of delay, need for finality and prejudice
The application was brought outside the timeframe specified by the Parliament. As has been noted previously by the Tribunal:
Parliament plainly intended for there to be finality in the decision making process when it legislated in the SRC Act for particular timeframes in which a party could request…review by the Tribunal of a reviewable decision by that authority (being 60 days)
The applicant has brought an application within a period which is three times the time frame specified. She was aware of the timeframe in which the application should have been brought and decided not to proceed. In this context the length of delay counts against the applicant but not so much that other considerations could not outweigh it.
There is no suggestion that the applicant’s delay has caused prejudice to the respondent. The delay in acquiring relevant evidence will be relatively small and the respondent has not suggested that it is prejudiced in any specific way.
The substantive merits
There is no dispute that the applicant’s health has been very adversely affected by events in the workplace in both 2019 and April and May 2022. The Comcare delegate accepted that the applicant suffered an aggravation of a major depressive disorder with anxious stress and this was significantly contributed to by the applicant’s employment.
Comcare however determined that the operative condition arose as a result of reasonable administrative action taken in a reasonable manner in meetings on 27 April 2022, 9 May 2022 and 17 May 2022. There does not appear to be any doubt that these events precipitated the period of incapacity the applicant has suffered since 22 May 2022.
Consequently, the focus of any Tribunal proceedings is likely to be on whether the administrative action taken was reasonable administrative action taken in a reasonable manner.
The applicant’s view is that it was neither. First, the action taken was conducted in a bullying manner where she was spoken to in an inappropriate manner and without the benefit of a support person. Equally importantly, she was spoken to about performance issues which she says were non-existent or never identified.
The applicant’s claims about the way in which the meetings were conducted have been investigated previously in the context of a bullying complaint. The findings of that investigation were that the claims were not substantiated. This might suggest that the application lacks merit. However, if the Tribunal considers the issue, the burden will be on the respondent to establish that the applicant’s ailment was the result of reasonable administrative action taken in a reasonable manner. Consequently, it cannot be said that the applicant is unlikely to succeed in relation to her contention that the administrative action was not taken in a reasonable manner.
Further, there does not appear to have been any investigation of the applicant’s contention that there was no basis at all for her supervisors raising claims that she was underperforming in the meeting on 27 April 2022 and following.
In these circumstances it is possible that her claims have merit. An assessment of them will only be possible if the extension is granted. While her case could not be described as strong at this point, it is not self-evidently hopeless or even necessarily weak.
As there may be an arguable case depending on what evidence emerges, the merits of the application favour a grant of an extension of time.
The respondent submits that notwithstanding that the underlying case is sufficiently arguable, I should take into account the fact that the applicant is unrepresented and, by her own admission, has no capacity to represent herself.
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.
I certify that the preceding 39 (thirty nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member D O'Donovan.
...[SGD]...
Associate
Dated: 7 June 2024
Date of Interlocutory Hearing: 9 May 2024 Applicant Representative: Self Represented Respondent Representative: Ms Athena Cains, McInnes Wilson Lawyers
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