Gakhar and Comcare
[2001] AATA 906
•2 November 2001
DECISION AND REASONS FOR DECISION [2001] AATA 906
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2000/329
GENERAL ADMINISTRATIVE DIVISION )
Re VIJAY GAKHAR
Applicant
And COMCARE
Respondent
DECISION
Tribunal M J Sassella, Senior Member
Date2 November 2001
PlaceCanberra
Decision The Tribunal decides that it should not exercise its discretion to extend the time for the Applicant to make an application to the Tribunal for a review of the Respondent's decision of 16 April 1999.
M J Sassella (sgd)
Senior Member
CATCHWORDS
WORKER'S COMPENSATION – application for extension of time in which to lodge an application for review – subsequent criminal proceedings - reasons for delay in lodging not acceptable – agitation in other forums – merits of substantive case - extension of time to lodge not granted
Safety, Rehabilitation and Compensation Act 1988 s 65(1), (4)
Administrative Appeals Tribunal Act 1975 ss29(1), (2)(a), (7)
Dickinson v Comcare [1998] 663 FCA
Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315
REASONS FOR DECISION
2 November 2001 Senior Member M Sassella
CHRONOLOGY
On 5 March 1992 Mr Vijay Gakhar ("the Applicant") commenced taking sick leave in respect of an alleged workplace injury (Respondent's chronology).
In August 1992 the Applicant lodged a claim for compensation with Comcare ("the Respondent")(Respondent's chronology).
On 10 December 1992 the Respondent accepted liability for this injury (Applicant's chronology).
In July 1994 an anonymous letter was sent to the Respondent regarding the Applicant's business interests (Respondent's chronology).
On 27 July 1995 the Respondent issued a determination ceasing liability for the Applicant's injury (Respondent's chronology).
On 3 February 1996 the Respondent affirmed the decision to cease liability and compensation payments (Applicant's chronology).
On 22 September 1998 the Applicant's Supreme Court Trial was vacated (Applicant's chronology).
On 16 April 1999 the Respondent, following a reconsideration on its own motion (a reviewable decision), wrote to the Applicant informing him that his claim for compensation in respect of the condition "episode of depression" could no longer be sustained (Exhibit A8). The relevant determination of 10 December 1992 was revoked and it was found that there had been no injury for the purposes of the Safety, Rehabilitation and Compensation Act 1988 ("the Act").
On 19 April 1999 the Applicant's Dietrich application was heard before the ACT Supreme Court (Applicant's chronology). A Dietrich application is an application to have a prosecution adjourned, postponed or stayed because the defendant is unrepresented (Dietrich v R (1992) 109 ALR 385).
On 21 April 1999 the ACT Supreme Court handed down its decision and stayed the Applicant's trial (Applicant's chronology). The Applicant was granted a Dietrich order.
On 3 June 1999 Mr G Bates, the Applicant's solicitor, wrote to Comcare confirming that the Applicant was the subject of criminal prosecution by the Commonwealth Director of Public Prosecutions ("the DPP") regarding his compensable injury (Exhibit R7). Mr Bates further informed Comcare that he was unable to pursue a review of the Comcare decision of 16 April 1999 in the Administrative Appeals Tribunal ("the Tribunal") or the Federal Court because of a lack of funds.
On 8 June 1999 the Respondent wrote to Mr Bates stating that the Respondent did not consider a lack of funds to be justification for an extension of time being granted (Exhibit R7). The Respondent also asked for information as to the Applicant's current financial circumstances.
On 13 July 1999 the Applicant again notified the Respondent that liability was disputed and that the Applicant was in financial difficulties (Applicant's chronology).
[See paragraphs 51-56 below. This date is contentious and the conclusion in the letter ambiguous at least].
On 22 September 1999 the Respondent wrote to the Applicant notifying him of a total overpayment of $142,142.10 as a result of the determination of 10 December 1992 (Exhibit R8).
On 7 October 1999 Mr Bates confirmed receipt of the Respondent's letter of 22 September 1999 (Exhibit R1). He asked for more time to consider the matter.
On 7 March 2000 the Respondent wrote to the Mr Bates informing him that recovery of the compensation overpayments would commence from 20 March 2000 (Exhibit R2). No response had been received from the Applicant regarding the overpayment amount nominated in the Respondent's letter of 22 September 1999.
On 9 August 2000 the Respondent's representative wrote to Mr Bates informing him that it had been instructed to recover overpayments in the amount of $136,223.85 (Exhibit R3). The amount was to be repaid by the Applicant by 31 August 2000.
On 16 August 2000 the Applicant's solicitor wrote to the Respondent (Exhibit R4) confirming receipt of the letter of 9 August 2000 (Exhibit R3).
On 1 September 2000 the Applicant lodged with the Tribunal an application for an extension of time in which to lodge an application for review (as well as the application for review) of the Respondent's determination of 16 April 1999.
On 6 September 2000 the Applicant wrote to the Respondent (Exhibit R5) stating that an appeal to the Tribunal had been lodged in respect of the Comcare determination, apparently of 16 April 1999 but this was not stated.
On 21 September 2000 the Department of Education, Training and Youth Affairs ("DETYA") determined that the Applicant had engaged in conduct deemed as misconduct under the Public Service Act 1922 (Exhibit A2). Further DETYA determined that the Applicant's behaviour would have breached the Public Service Act 1999 if it had occurred after 5 December 1999. He was suspended from employment.
On 18 October 2000 the Applicant lodged an application for an order of review under Order 54 in the Federal Court of Australia (Exhibit A3). The application mentioned the Applicant's grievances: his employment had been terminated with a loss of all entitlements; a breach of the rules of natural justice occurred in connection with the making of the decision.
On 30 October 2000 the Tribunal convened a hearing in Canberra to consider whether the Applicant should be allowed an extension of time in which to lodge the application for review. Mr R Thomas of counsel represented the Applicant. Ms L Gabriel represented the Respondent. The Tribunal adjourned to another day, as the matter could not conclude within the allotted time.
On 8 November 2000 the Respondent's solicitor wrote to Mr Bates requesting a copy of the Respondent's letter sent to the Applicant on 22 September 1999 (Exhibit A10). The Respondent had misplaced its own copy.
On 9 November 2000 Mr Bates wrote to the Respondent noting that the Respondent had a lost a file in relation to the Applicant (Exhibit A11). He requested that the Respondent inform the Tribunal that there was at least one file on the Applicant that had been lost. Mr Bates requested that in light of this the Respondent reassess its opposition to the Applicant's Tribunal application for an extension of time in which to lodge his substantive application.
On 10 November 2000 the Respondent wrote to the Applicant's representative informing him that it did indeed oppose an extension of time being granted (Exhibit A12). The Respondent noted that Mr Bates himself acknowledged receipt of the letter of 22 September 1999 and asked him whether he still had a copy the letter and whether he would make copes available to the Tribunal and the Respondent.
HEARING AND APPEARANCES
As noted above, the Tribunal convened a hearing into the matter on 30 October 2000. The matter resumed on 22 December 2000 in Canberra. The Applicant was represented by Mr Thomas of Counsel, the Respondent by Ms Gabriel, also of Counsel. The following documents were taken in as exhibits:
Exhibit A1 – Letter from Garry Bates to Paul McCabe dated 13 July [1999].
Exhibit A2 - Letter and statement of reasons from DETYA and dated 21 September 2000.
Exhibit A3 - Application for order of review in the Federal Court dated 18 October 2000.
Exhibit A4 – Transcript of Queen v Gakhar, Supreme Court proceedings dated 22 September 1998.
Exhibit A5 – Transcript of Queen v Gakhar, Supreme Court proceedings dated 19 April 1999.
Exhibit A6 – Transcript of Queen v Gakhar, Supreme Court proceedings dated 18 November 1999.
Exhibit A7 – Letter from Bernard Collaery to the Respondent dated 3 June 1999.
Exhibit A8 – Letter from the Respondent to the Applicant dated 16 April 1999.
Exhibit A9 – Copy of envelope addressed to the Applicant.
Exhibit A10 – Letter from Phillips Fox to Garry Bates dated 8 November 2000.
Exhibit A11 – Letter from Garry Bates to Phillips Fox dated 9 November 2000.
Exhibit A12 – Letter from Phillips Fox to Garry Bates dated 10 November 2000.
Exhibit A13 – Report of Dr McKay dated 31 March 1992.
Exhibit A14 – Report of Dr Knox dated 11 May 1992.
Exhibit A15 - Report of Dr Singh-Pander dated 1 June 1992.
Exhibit A16 - Report of Dr Singh-Pander dated 23 July 1992.
Exhibit A17 – Report of Dr Saboisky dated 31 July 1992.
Exhibit A18 – Report of Margaret Groube dated 4 September 1992.
Exhibit A19 – Report of G Doney dated 23 September 1992.
Exhibit A20 - Report of Dr Singh-Pander dated 16 July 1992.
Exhibit A21 – Report of Dr Saboisky dated 28 October 1992.
Exhibit A22 – Medical certificate by Dr Rososinski dated 3 November 1992.
Exhibit A23 – Medical certificate by Dr Rososinski dated 19 November 1992.
Exhibit A24 – Report of Dr Mackay dated 4 December 1992.
Exhibit A25 – Report of T Marchant dated 21 December 1992.
Exhibit A26 – Report of U Love dated 1 July 1993.
Exhibit A27 – Report of Dr Mackay dated 12 July 1993.
Exhibit A28 – Report of T Maher dated 30 September 1993.
Exhibit A29 – Medical certificate dated 30 September 1993.
Exhibit A30 – Report of Dr Mackay dated 15 October 1993.
Exhibit A31 – Medical certificate by Dr Gupta dated 2 December 1993.
Exhibit A32 – Medical certificate by Dr Rososinski dated 5 May 1994.
Exhibit A33 – Medical certificate by Dr Rososinski dated 9 May 1994.
Exhibit A34 – Medical certificate for workers' compensation dated 10 May 1994.
Exhibit A35 – Report of Dr Price (on MRI) dated 7 July 1994.
Exhibit A36 – Report of Dr Gupta dated 9 August 1994.
Exhibit A37 – Physiotherapy referral dated 29 February 1995.
Exhibit A38 – Report of Dr Battersby dated 26 September 1994.
Exhibit A39 - Medical certificate by Dr Rososinski dated 22 November 1994.
Exhibit A40 - Medical certificate by Dr Rososinski dated 28 February 1995.
Exhibit A41 - Medical certificate by Dr Rososinski dated 19 June 1995.
Exhibit A42 – Report of Dr de Wilde dated 29 August 1995.
Exhibit A43 – Report of Professor Henderson dated 12 January 1996.
Exhibit A44 – Report of Dr Feltham dated 25 January 1996.
Exhibit A45 – Report of Dr Feltham dated 25 January 1996.
Exhibit A46 – Report of Professor Henderson dated 8 February 1996.
Exhibit A47 – Report of Dr Feltham dated 24 May 1996.
Exhibit A48 – Letter from Dr Griffin to Bernard Collaery dated 4 December 1997.
Exhibit A49 – Report of D Ciolek dated 6 January 1998.
Exhibit A50 – Report of Dr Griffin dated 26 May 1998.
Exhibit A51 – Report of A Robillard 14 September 1998.
Exhibit A52 – Report of Dr Westmore dated 20 August 1998.
Exhibit A53 – Report of Dr Gupta dated 17 September 1998.
Exhibit R1 – Letter from Garry Bates to Comcare dated 7 October 1999.
Exhibit R2 – Letter from Comcare to Garry Bates dated 7 March 2000.
Exhibit R3 – Letter from Phillips Fox to Garry Bates dated 9 August 2000.
Exhibit R4 – Letter from Garry Bates to Phillips Fox dated 14 August 2000.
Exhibit R5 – Letter from Garry Bates to Phillips Fox dated 6 September 2000.
Exhibit R6 – Bundle of medical reports from 31 March 1992 to 18 September 1996.
Exhibit R7 – Summonsed materials produced by Bernard Collaery.
Exhibit R8 – Summonsed materials produced by Garry Bates.
Exhibit R9 – Statement and report of R McBride dated 15 September 1995.
Exhibit R10 – Statement of C Thomson dated 26 October 1995.
Exhibit R11 – Statement of M Fraser dated 12 October 1995.
Exhibit R12 – Statement of K Harvey dated 15 January 1996.
At the resumed hearing on 22 December 2000 it was agreed that the Applicant's representatives would be providing further documentary materials to the Tribunal and the Respondent after the close of the hearing. This is canvassed in the transcript at pages 113-115 and 142-143. The Tribunal said, "We have the medical evidence to come from the applicant I believe. If that could be just submitted to the registrar in the usual way to the Tribunal, with a copy to the respondent." Ms Gabriel was asked if she would want to make submissions on that material and replied, "Assuming that it is of course old medical evidence and nothing new is being obtained for the purpose of these proceedings" she would be prepared to leave the material to be assessed by the Tribunal from a perspective of the merits of the Applicant's claim. It was foreshadowed for the Applicant that the additional material would be available by 8 January 2001.
On 10 January 2001 the Respondent's solicitor wrote to the Tribunal Registrar protesting about certain supplementary material filed by the Applicant. The letter says, amongst other things:
"The Respondent objects to the Applicant's production of additional medical evidence which was obtained in defence of his fraud charges and which until now, has not been referred to or disclosed by the Applicant.
"The applicant has been aware since the Respondent opposed his application for an extension of time that the merits of his claim would be in issue. The Applicant has had every opportunity to indicate that he had obtained additional medical evidence upon which he wished to rely."
On 22 January 2001 the Applicant filed an additional affidavit which the Respondent argued in a letter to the Tribunal received on 24 January 2001 (but dated 10 January 2001) should not be considered by the Tribunal.
The Tribunal convened a directions hearing on 23 February 2001 to consider these matters. Mr Bates (for the Applicant) and Ms Gabriel (for the Respondent) appeared. The Tribunal directed the parties to those parts of the December transcript that foreshadowed the submission of additional medical reports by the Applicant. The Respondent then sought to have certain additional documents accepted as exhibits. The Tribunal admitted the Applicant's additional medical material, but not the Applicant's affidavit of 22 January 2001, as exhibits. The Tribunal admitted as exhibits the Respondent's new documentary evidence. The Tribunal issued directions on 23 February 2001 requiring certain submissions by the Applicant by 9 March 2001. Certain submissions from the Respondent were required by 23 March 2001.
The Applicant's opening
The explanation in the Applicant's written application for an extension was: "At the time of the decision, I was the defendant in a Supreme Court matter. Due to the incompetancy [sic] of the DPP in the management of my case, all my available funds ($80,000) were exhausted. At the time I was of the view that due to lack of funds I was precluded from filing an application to the AAT. I am now in a position to support the application."
The Respondent replied to this on 22 September 2000. These were the arguments:
There are no special circumstances demonstrated by the Applicant to justify granting an extension of time.
The Applicant has not provided a reasonable explanation for the substantial delay in bringing his claim before the Tribunal.
The Applicant's claim that he believed he was precluded from lodging an appeal because of limited funds following his fraud prosecution is not sustainable.
It was suggested that the Applicant only brought this matter before the Tribunal once he was made aware that debt recovery proceedings were about to be instituted against him by the Respondent.
Despite ample opportunity, the Applicant has not taken any action to make Comcare aware that he contested the finality of the reviewable decision.
The Applicant's claim has no merit.
Comcare would be severely prejudiced as a result of being required to defend the reviewable decision. Comcare would need to invest considerable resources and incur substantial legal costs opposing an appeal that at best has extremely limited prospects of success.
At the first day of hearings Mr Thomas presented the following background. The reviewable decision was made on 16 April 1999. This was in part a decision to revoke the decision of 10 December 1992 accepting compensation liability. A copy of the reviewable decision was attached to the Applicant's application for review. Because it may become important later, the Tribunal takes this opportunity to say something of the content of the reviewable decision.
The reviewable decision noted that it was in August 1992 that the employee claimed compensation for "work-related stress". It was on 10 December 1992 that Comcare accepted liability for the employee's condition. Comcare described the condition as "an episode of depression". Comcare decided on 24 July 1995 to cease the employee's compensation on and from 27 July 1995 because it had learned that the employee was engaged in a large property redevelopment business. This decision was affirmed by a review officer on 3 February 1996. Comcare later decided that the employee was conducting business while allegedly incapacitated and that it was appropriate to reconsider the determination of 10 December 1992. In a reconsideration of own motion, pursuant to s 62(1) of the Act, on 16 April 1999 Comcare decided to revoke the decision of 10 December 1992 and find in its place that the employee did not and had never suffered an "injury" being a "disease" for the purposes of the Act and therefore had never had any entitlement under the Act.
The application for review was lodged with the Tribunal on 1 September 2000, that is, approximately 15 months out of time.
The Applicant was, therefore, on compensation payments from December 1992. These payments were suspended and his case was referred to the DPP because of the Applicant's alleged fraud. Criminal proceedings were instituted and on 15 April 1997 in the Canberra Magistrates Court the Applicant was committed for trial in the Supreme Court. The matter came on before Crispin J on 22 September 1998. Questions were raised about the form of the indictment, the provision of particulars of the offences, and the length of the trial. The Applicant funded his own representation. The matter was taken out of Crispin J's list.
On 24 February 1999 Gallop J issued directions. The indictment was to proceed. On 20 April 1999 the Applicant sought a Dietrich order. He could not fund defence of the action. On 21 April 1999 Crispin J stayed the indictment. The Commonwealth could move to have the matter relisted at any time. In the meantime, the Applicant was taken to lack funds necessary for a five to ten week trial. The Applicant had no legal aid. It would be unfair to expect pro bono coverage for that long.
On 7 September 1999 the Crown by notice of motion sought the lifting of the Stay order because the Applicant's financial circumstances were said to have improved. On 18 November 1999 Crispin J. confirmed the continuation of the stay. The Crown had refused to provide particulars of the indictment. The judge did not accept the Crown's argument of changed circumstances on the part of the Applicant. Crispin J. identified certain factual matters that would have to change if the stay was to be lifted. An example was the sale of property by the Applicant
Not long before 30 October 2000 the Commonwealth had moved to terminate the Applicant's employment. As of 18 October 2000 an action under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") had been commenced in the Federal Court. This was action by the Applicant to review the termination decision. A directions hearing was due on 23 November 2000.
Mr Thomas argued that each of the three proceedings on foot revolve around the same allegations of fraud by Mr Gakhar.
Mr Thomas also alerted the Tribunal to the fact that prior to July 1999 the Applicant had a number of different solicitors at different times. He has, however, had a continuity of representation since July 1999. Some alleged unpaid costs have prevented the hand-over of some files.
Mr Thomas put to the Tribunal that the Applicant had a problem in being able to contest matters in the Tribunal at the same time as criminal proceedings were running.
Mr Thomas argued that the delay incurred has worked no prejudice to the Respondent. If the Applicant had applied to the Tribunal promptly after the reviewable decision was made the Tribunal would have had to grant a stay of proceedings because of the criminal proceedings on foot at the time and more recently because of the Federal Court matter.
The Respondent's opening
Ms Gabriel, for the Respondent, referred the Tribunal to the decision of the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 in which it was said that an applicant for an extension of time bears the onus of satisfying the Court or Tribunal that the discretion to extend time should be exercised in favour of the applicant.
Ms Gabriel cited the Federal Court decision in Comcare v A'Hearn (1993) 45 FCR 441 for the proposition that an explanation for delay, while not essential, is usually required. The explanation proffered for Mr Gakhar is that he was concentrating on the criminal proceedings.
Ms Gabriel referred also to the principle that where a person has rested of his or her rights the discretion is less likely to be exercised in his or her favour. While it may be enough for the person to bring his or her dissatisfaction with the decision to the attention of the decision maker by a means other than applying to the Tribunal the Applicant did not do that here. Mr Gakhar was dealing with the criminal prosecution and matters attendant on that whereas Comcare was attempting to recover a debt. The Applicant is a capable individual, a middle manager in the Public Service before he was dismissed. He was able to secure a Dietrich order. Surely he could be expected to lodge an application with the Tribunal while also engaged in the Supreme Court matter. An application to the Tribunal is free of charge and can be achieved by sending a simple letter.
Ms Gabriel argued that the Respondent would be prejudiced if an extension of time is granted. The memories of witnesses would have faded. Some witnesses may no longer be available. There would be a further delay in recovering the debt. There is a risk of the dissipation of funds by the Applicant. The Respondent has spent a considerable sum thus far in attempting to recover the debt. Comcare's 1996 determination to cease effects may be reopened in this process if an extension is granted. The matter might not be confined to the reviewable decision of 16 April 1999. The Commonwealth has now been put to the inconvenience of a Federal Court action under the Judicial Review Act that, arguably, would not have been brought had the Applicant acted promptly in applying to the Tribunal.
Ms Gabriel moved on to the merits of Mr Gakhar's case. She referred to the Federal Court decision in Comcare v Russell Edward Smith [1997] 140 FCA. She argued that the merits in Mr Gakhar's case are very poor. The Applicant's treating psychologist, Mr McBride, had reversed an opinion that he gave earlier when approached more recently by Comcare. Another medico-legal specialist psychiatrist, Dr White, was of the opinion that Mr Gakhar was probably malingering. These opinions followed advice to the experts regarding Mr Gakhar's business activities and inconsistent presentation under formal and informal observation.
Ms Gabriel suggested that the Applicant was prepared to accept the reviewable decision until Comcare decided to recover the debt.
Tender of letter dated 13 July from Applicant's solicitor to Comcare
Mr Thomas sought to tender a letter from Mr Bates, the Applicant's solicitor, to Comcare bearing the date "13 July". The year does not appear. That letter was not on the Comcare files available in the Tribunal room. The Respondent admitted that it had been unable to locate some of its files on this matter.
On 3 June 1999 Mr Bates wrote to Comcare about the reviewable decision (Exhibit R7). He said that the Applicant was subject to criminal prosecution by the DPP "regarding certain documentation concerning the compensable injury". He said that Mr Gakhar was financially unable to proceed with the criminal matter because of a lack of funds and that he had received the Dietrich order. He went on to write, "We confirm that the position is similar with respect to the Comcare decision made on 16 April 1999 that whilst we feel that the decision is flawed our client is unable to proceed with an application to the AAT or to the Federal Court as he has no money to fund his application.
"He is therefore not in a position to contest this decision and we believe that it would be fair as indicated the criminal prosecution to seek written advice from you that time does not run in this matter until such time as he is able to contest the matter."
On 8 June 1999 Mr Skeen responded by saying that the time limits for applying for review by the Tribunal are statutory and ought to be complied with. If the Applicant could not comply with them he would have to apply to the Tribunal for an extension of time in due course. He said that Mr Gakhar's lack of money to fund an application is not regarded by Comcare as sufficient justification for him not applying for a review of Comcare's decision within the time limit. He made clear that Comcare would be pursuing repayment of the allegedly overpaid compensation.
Moving now to the letter produced by Mr Thomas, this is the reply by Mr Bates to Mr Skeen's letter of 8 June 1999. In that letter Mr Bates says, amongst other things, that Mr Gakhar disagrees with the "time limit interpretation" by Comcare and with the suggestion that there has been a compensation overpayment. In the final paragraph he wrote, "In previous correspondence to Comcare, I have indicated that due to my client [sic] financial circumstances, he will, be very likely be [sic] severely disadvantaged concerning any litigation instituted by Comcare and is for the same reason unable to pursue his appeal rights concerning decisions made by Comcare."
This letter was admitted as Exhibit A1. It would appear from the chronological context to have been written in 1999 and the Tribunal finds that as a fact.
Mr Thomas argued that Exhibit A1 indicates that the Applicant did not rest on his rights, that he had signified his dissatisfaction with the reviewable decision on 3 June 1999 and 13 July 1999. Mr Bates's letter in R7, dated 3 June 1999, was sent within the 60 days period allowed for an appeal to the Tribunal. As the Tribunal sees it, however, the weakness in that argument is that the letter of 14 July 1999 intimated that the Applicant had no choice other than to accept the decision by Comcare.
Applicant's response to Respondent's opening
Mr Thomas asserted that there was considerable medical evidence in support of the Applicant. Ms Gabriel had referred only to the negative medical evidence.
Mr Thomas suggested that Comcare's action to recover the alleged debt may be a contempt of the Tribunal.
Mr Thomas argued that perusal of Exhibit A2 (DETYA's statement of reasons for dismissing the Applicant), Exhibit A3 (the Judicial Review Act application) and the Comcare reviewable decision shows that all three traverse the same issues.
Mr Thomas suggested that the Respondent's arguments on prejudice should be discounted. The documents are all available. The doctors are available. No additional prejudice has accrued to Comcare since its decision in April 1999.
The Applicant's oral evidence
The Applicant confirmed much of what Mr Thomas had said in his opening. The Tribunal will at this point refer only to any new material that was forthcoming.
The Applicant first knew of Comcare's intention to recover the alleged overpayment on about 21 April 1999 when the Supreme Court granted him the Dietrich order. The Applicant found a letter (Exhibit A8) from Comcare. This was the reviewable decision with a covering letter. The Applicant told the Tribunal that he recalls the covering letter but not the reasons for decision. Exhibit A9 was identified as a copy of the envelope in which Exhibit A8 was contained. The postmark indicated that it was sent on 20 April 1999. The Applicant was confused by the letter and saw his solicitor at the time, Mr Collaery. He cannot recall what he thought Mr Collaery would do for him. He does not recall telling Mr Collaery to respond to the letter. He had to concentrate on the DPP's proceedings in the Supreme Court. The DPP had just decided to make a fresh application [the Tribunal notes that this occurred in September 1999]. The Applicant thought he should give the Supreme Court case priority partly because its resolution might dispose of the Comcare issue. The Applicant read Comcare's letter as a statement of its intention to recover the compensation not as a decision that it would act on without more. He saw a lawyer in June or July 2000 when he realised that recovery action was imminent.
The Applicant had been told he would need at least $15,000 to appeal to the Tribunal.
The Applicant considered the Comcare decision at the time (ie April 1999) "Just a bunch of lies".
The Applicant considered that the same parties were involved in both his Comcare dispute and the DPP action. He considered that Comcare had instituted the criminal proceedings.
Through the year 2000 and after, the Applicant had had no access to legal advice until these Tribunal proceedings.
The Applicant lodged an application for Tribunal review on 1 September 2000 because he could not understand the Respondent proceeding with a debt claim for over $130,000 knowing that the Applicant has no money and wasting Commonwealth funds. The Applicant said that he still has no funds.
Ms Gabriel put to the Applicant that he had appealed to the Tribunal against the Respondent's decision of 3 February 1996 to cease effects. He had withdrawn this application for review. The Applicant said he did this because of the criminal prosecution.
Ms Gabriel ascertained that the Applicant represented himself in order to obtain the Dietrich order. The Applicant also has done some legal studies as part of a course at Canberra CAE. The Applicant had, with only the help of his wife, completed a financial affidavit sufficient to satisfy the Supreme Court.
Ms Gabriel queried whether the Applicant had been denied legal aid because his case lacked merit. The Applicant said he believed it was because of his wife's income.
Ms Gabriel quizzed the Applicant about his attitude to Exhibit A8, the reviewable decision and covering letter. He said he did not get advice about such a long letter because he was so overwhelmed by the Supreme Court action. He did not understand how Comcare could retrospectively deny liability. He thought the decision in the letter was wrong as it referred in 1999 to something happening in 1992. He did not read the letter as meaning he would have to refund several years worth of compensation.
The Applicant could not recall who told him it costs $15,000 to go to this Tribunal.
The Applicant was referred to parts 7 and 8 of Exhibit A8. The Applicant did not admit having received Part 7. Looking at it he said he took it to mean that he was deemed fit and not entitled to compensation. He read the notice of rights in Part 8 in the Tribunal and understood its meaning.
The Applicant said that he thought the stay of the criminal proceedings would apply also to Comcare's decisions. He was disabused of this notion when he received letters from Comcare demanding repayment. In this context, the Applicant does not recall receiving Exhibit R2, a letter dated 22 September 1999 from Comcare about the debt. He admitted, however, that he may have become aware that Comcare was seeking recovery of the money in 1999, but he is uncertain. He treated the Supreme Court matter as so much more important.
Submissions received by the Tribunal on 22 December 2000
Mr Thomas in submissions suggested that the coincidence of the grant of the Dietrich order on 21 April 1999 and receipt by the Applicant of the reviewable decision reinforced the notion in the Applicant's mind that the DPP and Comcare were working together on the prosecution. Mr Thomas went further and said:
"Rather, an inference that might be raised is that the Applicant was seeking to try and use its procedures in a way that would disadvantage the Applicant and that comes from the issue of the significant coincidental timing of the decision with the Dietrich application. The first Dietrich application. We say that timing which is unexplained raises an inference which the Tribunal could adopt that there was a very clear attempt by the Applicant -- by the Respondent, rather, to put some significant pressure on the Applicant in relation to that application, or to take some other advantage that it saw from the timing of the two. We say, that is given some further force by the fact that nothing had happened from 1996 apart from the committal proceedings and, once again, that emphasises the fact that Comcare was proceeding along the track of the committal proceedings and was very well aware that they were being contested."
The Tribunal does not accept that the Respondent calculated to despatch the reviewable decision to the Applicant according to a time frame in any way dictated by the Supreme Court proceedings. There is no direct evidence of such an intention and the Applicant does not need to establish any such connection in order to succeed in his extension of time application. In any case, the reviewable decision was made on 16 April 1999, before anything was known about whether the Dietrich order would be granted.
Mr Thomas emphasised that the Applicant had not simply ignored the receipt of the reviewable decision. He had seen his solicitors and that had prompted the correspondence between Mr Bates and Comcare in June and July 1999 (Exhibits R7 and A1).
As regards prejudice Mr Thomas submitted that any Tribunal proceedings on foot when the criminal proceedings commenced would have had to be stayed in any event. A delay would have been built within the system.
He submitted as regards the merits that Comcare had paid compensation for three years on the basis of medical evidence in support of the Applicant. This raises at least a point of argument for the Applicant if the matter goes to a hearing on the merits.
Ms Gabriel submitted that the Applicant in an attempt to explain the delay in proceeding had veered into issues relating to resting on his rights. He says that letters from his solicitor to Comcare made Comcare aware of a dispute. They did not alert Comcare that the Applicant was taking any action to have the dispute dealt with. Ms Gabriel said that the Respondent was now prepared to accept that it had, however, been put on notice of a dispute. At the outset of the matter Comcare had not conceded this. Ms Gabriel referred the Tribunal to Finn J's decision in Dickinson v Comcare [1998] 663 FCA which can be said to stand for the proposition that it is not sufficient for the granting of an extension of time that an applicant has an explanation for the delay. That explanation must be acceptable. In that case the applicant had a good reason for about 200 days delay in appealing to the Federal Court from the Tribunal, but he took much longer than that time to lodge his appeal and had no satisfactory explanation for the additional delay. Finn J also took a dim view of the applicant's prospects of showing that an error of law had occurred.
Mr Thomas argued that Dickinson (supra) was distinguishable. Finn J considered that Mr Dickinson had done nothing for extended periods. That was not Mr Gakhar's conduct.
Ms Gabriel cast doubt on the Applicant's evidence that he thought a Tribunal application required access to about $15,000. He had previously applied to the Tribunal. She commented that Mr Gakhar is an intelligent person with university training and who had assistance from a solicitor in 1999. Comcare put Mr Gakhar and his solicitor on notice in mid-1999 as to Comcare's attitude to any request by the Applicant for an extension of time. Nevertheless, no one lodged an application with the Tribunal.
In March 2000 Comcare wrote to the Applicant (Exhibit R2) about recovery action. The Applicant did nothing more until he received a letter from Phillips Fox Solicitors demanding the money claimed by Comcare (Exhibit R3, 9 August 2000). This was an unexplained six months period of delay.
Ms Gabriel argued that a prejudice to the Respondent, in addition to those mentioned earlier, is that, should Mr Gakhar be granted an extension and then succeed before the Tribunal, arrears of compensation might be payable. This could upset Comcare's budget planning and affect the employer's Comcare premium.
Ms Gabriel suggested too that the Commonwealth might be prejudiced in the Judicial Review Act proceeding if the Tribunal accepts this case and makes certain findings that adversely affect the Commonwealth's case in the Court.
Submissions received by the Tribunal on 23 February 2001
Ms Gabriel pointed out that the key to interpreting the many medical reports available about the Applicant was whether the writers had seen Comcare's investigative material about the Applicant. It was this material that had prompted Mr McBride (psychologist) and Dr White (psychiatrist) had changed their views. The fact that these and other experts may have supported the Applicant's claims for compensation in earlier years means little if, as they were, these experts were ignorant of the investigative material. She noted also that much of the additional medical material provided in January 2001 by the Applicant related to irrelevant medical conditions.
RELEVANT LEGISLATION
The provisions relevant to the application for an extension of time are:
The Safety, Rehabilitation and Compensation Act 1988 s 65(1), (4).
The Administrative Appeals Tribunal Act 1975("the AAT Act") ss 29(1), (2)(a), (7).
The Safety, Rehabilitation and Compensation Act 1988 s 65(1), (4):
Modifications of the Administrative Appeals Tribunal Act 1975
65. (1) This section has effect for the purposes of the
application of the Administrative Appeals Tribunal Act 1975 (in this
section called "the Act") in relation to a reviewable decision.
…
(4) Subsection 29 (2) of the Act has effect as if the reference to
"the twenty-eighth day" (first occurring) were a reference to "the
sixtieth day".
The Administrative Appeals Tribunal Act 1975 ss 29(1), (2)(a), (7):
29. Manner of applying for review
(1) An application to the Tribunal for a review of a decision:
(a) shall be in writing; and
(b) may be made in accordance with the prescribed form; and(c)except if paragraph (ca) or (cb) applies - must contain a statement of the reasons for the application; and
(ca)in respect of an application made under subsection 54(1) of the Australian Security Intelligence Organisation Act 1979 for review of a security assessment - must be accompanied by:
(i) a copy of the assessment as given to the applicant; and
(ii)a statement indicating any part or parts of the assessment with which the applicant does not agree and setting out the grounds on which the application is made; and
(cb)in respect of an application under subsection 54(2) of the Australian Security Intelligence Organisation Act 1979 - must be accompanied by a statement setting out the grounds on which the application is made;
(d)if the terms of the decision were recorded in writing and set out in a document that was furnished to the applicant or the decision is deemed to be made by reason of the operation of subsection 25 (5) - shall be lodged with the Tribunal within the prescribed time.
…
(2)Subject to subsection (3), the prescribed time for the purposes of paragraph (1) (d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:
(a)if the decision sets out the findings on material questions of fact and the reasons for the decision - the day on which a document setting out the terms of the decision is furnished to the applicant; or
…
(7)The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section).
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THE FINDINGS
In an application for an extension of time the Tribunal has customarily applied the criteria laid down by Wilcox J in Hunter alley Developments Pty Ltd v Cohen (1984) 7 ALD 315. The Tribunal has, under s 29(7) of the AAT Act an open discretion as to whether or not to allow an extension. Section 29(7) requires that there be an application in writing for the extension of time. Such an application was made on 1 September 2000.
The Hunter Valley case (supra) suggests several factors that are relevant for consideration in this case in determining whether to exercise the discretion in s 29(7). In practical terms these are:
Whether the Applicant has an acceptable explanation for the delay.
Whether the Applicant agitated the issue in a forum or forums other than the Tribunal during the period of delay.
Whether there would be prejudice to the Respondent if an extension is granted.
Whether the applicant's case has merit.
Acceptable explanation
The first matter to note is that the period of delay was 15 months. This is not extremely lengthy. In the view of this Tribunal that means that the task of the Applicant in satisfying his onus is somewhat lighter than if the period were longer.
Several explanations for delay were proffered. The main reason given was the need for the Applicant to devote his attention at the relevant time to the Supreme Court criminal proceedings. At first blush this is an attractive argument. The repercussions of a loss in the Supreme Court were (and are) extreme, including a possible jail term. As those stakes are much higher than any repercussions from a loss in the Tribunal, it is reasonable that he concentrated on the criminal proceedings.
There were subsidiary arguments. These were that he had exhausted the funds necessary to secure legal assistance for both actions. He did, however, see his solicitor when he received the reviewable decision and this prompted some correspondence between Comcare and his solicitor. Associated with this was his erroneous belief that an application to the Tribunal could involve him in costs of $15,000 at a time when he had no money.
The Applicant had been represented at different times by different solicitors, presumably causing him some confusion.
The Applicant did not understand the full implications of the reviewable decision and the accompanying letter.
The Applicant thought that the stay of the criminal proceedings, granted on 21 April 1999, would apply to Comcare also.
There are some problems with these explanations, however. In summary they are:
The Applicant should have been able to attend to his Comcare matters from late April 1999 because he had just been granted a stay of the Supreme Court proceedings. That stay was in place and apparently secure until September 1999 when the DPP moved to have it lifted. The period between May 1999 and August 1999 should not have required any substantial action by the Applicant in relation to the Supreme Court.
The Applicant had lodged an application for review with the Tribunal in 1996 and so should have been aware that there is no filing fee for such an application. The costs then incurred by an applicant are largely up to that applicant. He should have been well aware that it costs nothing like $15,000 to appeal to the Tribunal.
The Applicant received a letter from Comcare stating that it wished to recover the overpayment in March 2000. The Applicant took no steps to lodge an application for review at that time despite there being nothing happening in the Supreme Court to distract him. He waited until September 2000 to act, which he did after contact from Phillips Fox, Comcare's debt collection agency. There has been no real explanation offered in respect of this period of delay.
The Applicant's confusion about the meaning of the reasons set out in the reviewable decision is a solid explanation, however it does not explain the delayed action in 2000. This is true also of the Applicant's belief that the Dietrich order would apply to Comcare.
The Tribunal finds itself of the view that the explanation for delay by the Applicant is not satisfactory. The case has some similarities to the Dickinson case (supra) in this respect.
Agitation in other forums
The Tribunal finds on the evidence that Comcare was well aware that the Applicant was dissatisfied with the reviewable decision. This stems from material in Exhibits A1 and R7. The Tribunal finds also that Comcare was well aware of the DPP's actions in the Supreme Court. The Tribunal accepts Mr Thomas's submissions that the issues between the Applicant and Comcare, between the Applicant and the DPP and, for that matter, between the Applicant and DETYA, all stem from the allegations that the Applicant was receiving compensation fraudulently. Comcare might have expected that at some stage the Applicant would contest the reviewable decision. This argument is weakened, however, by Exhibit A1 where Mr Bates finished his letter by intimating that the Applicant had no choice but to accept the Comcare decision. On balance, however, the Tribunal finds that the Applicant did enough to agitate this matter in forums other than the Tribunal.
Prejudice to the Respondent
As noted above, there was no shortage of suggested forms of prejudice that might adversely affect the Commonwealth if Mr Gakhar is allowed an extension of time. The Tribunal places little weight on arguments about the recollections of witnesses dimming over time or on witnesses becoming unavailable. This is because of the relatively short period of delay in this case. It is also because of Mr Thomas's argument that the Tribunal's proceedings would very likely have been postponed pending the outcome of the criminal prosecution even if he had lodged his application within time.
The Respondent's argument that this application may reopen the 1996 determination is of little weight because that inconvenient result would have flowed had the Applicant appealed in time.
The argument that the Judicial Review Act case might not have proceeded if the Applicant had appealed in a timely fashion is speculative and not necessarily a logical argument.
The Respondent's argument about the effects on Comcare's budget if the Applicant succeeds is also of little weight in the Tribunal's view. This is an ever-present risk where administrative review is available.
The Respondent's argument that the Tribunal might make findings that prejudice the Commonwealth in the Judicial Review case does not seem at all strong to the Tribunal. The Court would be free to accept or reject such findings and, if accepting them, might be better informed than it would have been without the Tribunal's input.
The Tribunal finds that the prejudice that might potentially affect the Respondent if an extension of time is granted is insufficient to prevent the grant of such an extension.
Merits
The Tribunal has not seen the investigative report that has motivated at least one expert to change his views about Mr Gakhar. It has seen some witness statements in Exhibits R9, R10, R11 and R12 which suggest that Mr Gakhar was able to represent himself as a very effective businessman at a time when he was supposed to be incapacitated for work. However, Mr Thomas has a point when he says that the Respondent has concentrated on the most prejudicial evidence. He said that medical experts over the years had certified the Applicant as incapacitated. This must mean that the Applicant has an arguable case.
The Tribunal considers that Mr Thomas is correct. The Applicant may have an explanation for his inconsistent presentation in examinations and for his apparent professional activities. It is no small matter to be pursued for $140,000 and it would seem a small matter to at least allow the Applicant a hearing on the matter. The tribunal finds for the Applicant on this criterion.
CONCLUSION
The Tribunal has found in the Applicant's favour in relation to most of the criteria of relevance from the Hunter Valley case (supra), however it has found against the Applicant on a fundamental criterion. In the Tribunal's view the Applicant had no good reason for failing to seek review over several months in about mid-1999 and from March to September 2000. In view of these findings the Tribunal considers that it cannot extend the time for lodging an application in Mr Gakhar's case.
DECISION
The Tribunal decides that it should not exercise its discretion to extend the time for the Applicant to make an application to the Tribunal for a review of the Respondent's decision of 16 April 1999.
I certify that this and the 27 preceding pages are a true copy of the reasons for the decision herein of
Senior Member M Sassella
Signed: Anna Stephens .....................................................................................
AssociateDate/s of Hearing
Date of Decision 2 November 2001
Counsel for the Applicant Mr R Thomas
Solicitor for the Applicant Garry Bates & Co
Counsel for the Respondent Ms L Gabriel
Solicitor for the Respondent Phillips Fox Lawyers
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