Gomez-Mears and Comcare (Compensation)

[2015] AATA 718

Gomez-Mears and Comcare (Compensation) [2015] AATA 718 (8 September 2015)

Division	GENERAL DIVISION
File Number(s)	2015/4223
Re	Alicia Gomez-Mears
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Dr P McDermott RFD, Senior Member
Date	8 September 2015
Date of written reasons	16 September 2015
Place	Brisbane

The applicant’s application for an extension of time in which to seek review of the respondent’s decision of 9 January 2015 is granted pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) until 26 August 2015, being the date of lodgement of the application for review.

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Dr P McDermott RFD, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time – application for review out of time – whether explanation for delay – whether respondent prejudiced – whether Tribunal satisfied extension reasonable in all the circumstances – extension granted.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29(7)

CASES

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Comcare v A’Hearn (1993) 45 FCR 441

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

16 September 2015

1. The applicant has sought an extension of time to lodge an application for the review of a reconsideration decision made by the respondent. I am not conducting a merits review of the application to review the reconsideration decision. I am only considering whether it is reasonable for the applicant to be given an extension of time to lodge her application.

2. On 9 January 2014 the respondent made a reconsideration decision to vary a determination which denied the applicant any entitlement to compensation under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). Under the reconsideration determination the respondent determined to cease all medical treatment and incapacity costs relating to the physical conditions of the applicant but accepted liability for medical treatment and incapacity costs relating to her ongoing psychological condition.

3. The jurisdiction of this Tribunal to grant an extension of time is conferred by s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) which provides:

   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) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

4. The applicant has complied with this subsection by making an application in writing. The applicant’s legal representative has also provided a comprehensive written submission in support of this application for an extension of time.

5. There was a telephone hearing of the application for an extension of time, at which the respondent opposed the application for an extension of time.

6. The applicant received the reconsideration decision on or about the 17 or 21 January 2014. Until relatively recently the applicant was without legal representation. She had sought legal advice from a number of firms but did not have finance which they required before they would act for her. The applicant’s legal representative in her written submission stated that the applicant requested a copy of her file in about March or April 2014. The applicant was not provided with a copy of the file. In December 2014 she was advised that she might require surgery for her coccyx injury.

7. The applicant’s legal representative in her written submission pointed out that the applicant instructed Shine Lawyers in May 2015. On 15 June 2015 and 23 July 2015 at the instruction of the applicant Shine Lawyers had written to the respondent to request a determination pursuant to ss 20, 24 and 27 of the Act. The applicant’s legal representative in her written submission stated the solicitor’s firm has also requested a copy of the file pursuant to s 59 of the Act. At the hearing of this application the applicant’s legal representative stated that she had not received a copy of the file.

8. The respondent contends that the applicant has not provided an acceptable explanation of the delay and cited the decision of the Federal Court of Australia in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 in support of the submission that an extension of time should not be granted.

9. In the Hunter Valley Developments case the court provided guidance on the relevant principles which govern an application to extend time under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Wilcox J remarked at:

   Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of twenty-eight days is not to be ignored… Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained… It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time…[1]

   [1] Hunter Valley Developments Pty Ltd v Cohen  (1984) 3 FCR 344, 348.

10. There have certainly been cases where this Tribunal in considering applications under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) has applied the principles laid down by Wilcox J. However, the Full Court of the Federal Court of Australia in Comcare v A’Hearn (1993) 45 FCR 441, 444 has emphasised that an acceptable explanation was not an essential precondition to the exercise of discretion under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) but certainly any explanation would be considered by this Tribunal in determining whether or not to exercise the discretion.

11. I do not accept that there would be prejudice to the respondent if the application for an extension of time was granted.

12. Before this Tribunal will grant an extension of time it needs to be “satisfied that it is reasonable in all the circumstances to do so”. That is a requirement which is imposed upon this Tribunal by s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth).

13. There are in my view reasons which explain the delay in making an application to this Tribunal. I am conscious that in the reconsideration decision the respondent recognised that the applicant had an ongoing psychological condition. Such a condition may have caused the applicant difficulties in acting in her interests. I am also conscious that the applicant has limited income and endeavoured to obtain legal representation but would not have been able to afford legal representation.

14. One of the matters which I raised at the telephone hearing of this application is whether the reconsideration decision can be regarded as internally consistent. The reconsideration decision states: “The medical evidence from Dr Bookless, Dr Navin and Dr Zomerdijk all agree that your physical conditions have resolved”. However, this statement may not be correct because earlier in the reconsideration statement there is an extract from the report dated 30 July 2013 by Dr Zomerdijk who states that “there is an ongoing pain syndrome that has not been resolved, and is still being treated”. The last report by Dr Zomerdijk certainly indicates that the applicant still has an ongoing pain syndrome. In addition, Mr Bell, physiotherapist, in his report of 23 May 2013 has opined that the pain levels of the applicant “will continue for a prolonged period of time”.

15. At the hearing of this application the applicant’s legal representative stated that the main complaint of the applicant relates to a fracture of the coccyx. The respondent adverted to the fact that in the reconsideration decision there are statements by Dr Bookless and Dr Zomerdijk that there is no fracture. I am aware of the difficulty of detecting fractures by radiology if there is no displacement. In this case the applicant fell on her back in the workplace and it is certainly plausible that this has not resolved because of a coccyx fracture. There is some weight in the contention of the applicant’s legal representative in her written submission that the applicant thought that her condition would improve with time but this had not occurred.

    DECISION

16. Having regard to the requirements of s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal determines that the written application by the applicant dated 10 August 2015 for an extension of time in which to lodge an application for review of the respondent’s decision dated 9 January 2015 should be granted until 26 August 2015 (being the date of application for review) because it is satisfied that it is reasonable in all the circumstances to do so.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member

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Associate

Dated 16 September 2015

Date(s) of hearing	08 September 2015
Solicitors for the Applicant	Shine Lawyers
Respondent	In person