Hodges and Comcare (Compensation)
[2020] AATA 5210
•24 December 2020
Hodges and Comcare (Compensation) [2020] AATA 5210 (24 December 2020)
Division:GENERAL DIVISION
File Number(s): 2020/4198
Re:Julie Hodges
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:24 December 2020
Place:Sydney
The Applicant’s application to extend the time within which her application for review may be made under section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) is refused.
..............................[sgd]..........................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
EXTENSION OF TIME – applicant seeking an extension of time to make an application to review a decision – substantial delay – legally represented – whether application for extension of time is reasonable in all the circumstances – prejudice to the respondent and general public – whether the applicant rested on her rights – merits of the substantial application – extension of time refused
LEGISLATION
Administrative Appeals Act 1975 (Cth) s 29
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 11
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 14
CASES
Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449
Comcare v A'Hearn [1993] FCA 498
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
Noonan and Comcare (Compensation) [2019] AATA 515
Peters v Comcare (2013) FCA 808
Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
24 December 2020
INTRODUCTION
The Applicant is a long serving employee of the Department of Defence (the Department) in Canberra.
On 21 January 2019, she received an email from her supervisor requiring her to attend a meeting scheduled for 23 January 2019, to discuss a complaint made against her by another employee of the Department. There seems to have been a history of tension between the Applicant and this other employee.[1]
[1] Transcript, 24 September 2020, 10.
The Applicant was unaware that a complaint had been made against her by the other employee until she received the meeting request. She was deeply affected by the disclosure, and on 22 January 2019 commenced a period of sick leave. She was initially certified unfit for the period 22 January to 5 February 2019.
Shortly thereafter, on 15 February 2019, she submitted a workers’ compensation claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), alleging an injury in the form of “stress” as a result of “ongoing workplace bullying”.[2]
[2] Determination by Comcare dated 3 May 2019.
Section 14(1) of the SRC Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. ‘Injury’ is defined in section 5A of the SRC Act as follows:
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
On 3 May 2019, Comcare, the employer’s insurer, rejected her claim, denying liability under section 14 of the SRC Act. A delegate of Comcare (the delegate) found that the Applicant’s anxiety state was caused by reasonable administrative action, as defined by section 5A(1) of the SRC Act.
On 31 July 2019, the Applicant’s solicitors wrote to Comcare requesting reconsideration of the 3 May 2019 determination to reject her claim.
On 9 August 2019, Comcare sent a letter addressed to her solicitor acknowledging the request and enclosing information about the review process, including information about the 60 day time limit to lodge a further appeal with the Tribunal if either party disagreed with Comcare’s reconsideration.
On 4 September 2019 a review officer appointed by Comcare made a reconsideration of determination (the reviewable decision). The reviewable decision affirmed the previous decision made on 3 May 2019 by Comcare refusing her claim.
Comcare determined that the Applicant was suffering from acute anxiety disorder, partially in remission, as a result of her perception that she was being bullied at work. This finding was made on the basis of various psychiatric and medical reports, namely:
(a)A report dated 2 May 2019 by a consultant psychiatrist, Dr Nicholas Ingram;
(b)A report dated 13 February 2019 by a psychiatrist, Dr Robert Reznik; and
(c)A report dated 12 April 2019 by the Applicant’s general practitioner, Dr Jim Papadopulos.
Comcare found that the significant contributing factor in the development of the Applicant’s anxiety disorder was a reasonable administrative action, undertaken in a reasonable manner, without which she would not have sustained a diagnosable condition. Comcare found on the basis of medical reports that the Applicant suffered from an untreated anxiety condition prior to the 21 January 2019, and that a significant contributing factor in the development of her condition was being notified that a complaint had been made against her in an email meeting request on 21 January 2019. Comcare held that liability for the Applicant’s acute anxiety disorder was excluded by section 5A(1) of the SRC Act.[3]
[3] Reconsideration of determination by Comcare dated 4 September 2019, 2-3.
In terms of procedural issues, the reviewable decision of 4 September 2019 explicitly advised:
There is a time limit of 60 days from the day you receive the reviewable decision in which to lodge the application but, in some cases, an extension of time may be granted by the AAT.
On 19 August 2020, the Applicant’s solicitor lodged an Extension of Time (EOT) application under section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The EOT application sought an extension until 1 September 2020, an extension of 298 days. The specified time limit for such applications to the Tribunal is 60 days.[4] An application to review the reviewable decision was therefore due on or before 3 November 2019.
[4] Subsection 65(4) of the SRC Act modifies s 29(2) of the AAT Act such that the prescribed time for making an application for review by the Tribunal of a reviewable decision is the period ending on the sixtieth day after the decision is given to the Applicant.
On 27 August 2020, the Respondent filed a notice opposing the EOT application.
Both parties were legally represented at the telephone hearing held on 24 September 2020.
The discretion to grant an Extension of Time
Section 29(7) of the AAT Act 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.
If the Tribunal is satisfied that it is reasonable in all the circumstances to grant an application for an extension of time, then it has the power under 29(7) of the AAT Act to do so. The statutory provision does not set out any specific criteria by reference to which the discretion to grant an extension should be exercised.
Where the relevant statutory provision is silent as to the specific criteria to be applied in granting an extension of time, certain factors have been identified as especially important. In Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344, Wilcox J identified certain key factors in the context of section 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (at 348-9). This case has been widely applied and refined in administrative proceedings.[5]
[5] See Noonan and Comcare (Compensation) [2019] AATA 515, at [11]; Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449, at [48]; Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109, at [10]; Comcare v A'Hearn [1993] FCA 498, at [11].
In Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109, at [10] the Federal Magistrates Court stated:
[I]it is useful to set out in modified form the relevant principles in relation to the exercise of the Court's discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows:
1.There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The “prescribed period” of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at 550).
2.It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal [1993] VicRp 21: (1992) 1 VR 297 at 302).
3.Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff [1982] FCA 124: (1982) 42 ALR 283 at 287).
4.Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p287).
5.The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).
6.The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417).
7.Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) [1983] FCA 94; 47 ALR 528).
In Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449 at [48] Middleton J said, in the context of an application for an extension of time under human rights legislation, that the main three considerations were:
·the explanation of the delay;
·any prejudice to the respondent; and
·whether the applicant has an arguable case.
The Tribunal cannot lawfully be satisfied that it is reasonable to grant an extension of time unless positively satisfied that it is proper to do so.
The explanation for delay
During the hearing, the Applicant was asked when she became aware of the 60 day time limit. Her initial response was that the deadline was not a priority for her,[6] but she then seemed uncertain whether she had focussed on the deadline at all. “I guess I knew there was a time limit but I just didn’t realise how quickly the time would go and…”[7]
[6] Transcript, 24 September 2020, 17.
[7] Transcript, 24 September 2020, 18.
I attach some significance to the fact that the Applicant had the benefit of legal representation on the Comcare claim. The fact that she was legally represented undermines a claim that might otherwise have been made, namely, that she did not appreciate the procedural niceties associated with her claim, because she suffered from an acute anxiety disorder.
But there does not appear to have been much by way of communication between her and her solicitor in the period between September 2019 and June 2020. There is, for example, no evidence that she received a reminder from her solicitor as the 3 November 2019 time limit approached.
The Applicant told the Tribunal that she did not have any communication with her solicitor until she received the letter of 1 June 2020. The letter stated:
Dear Madam, we refer to correspondence late last year in relation to the above matter. We note that we have not had any further instructions from you since that time so we presume that you do not wish to take the matter further. We’ll now proceed to close our file. There has been no charge for our services. If we are incorrect in any of our presumptions or if you do require our further assistance, please contact us at your convenience.[8]
[8] Transcript, 24 September 2020, 19.
It appears that shortly after receiving the letter in June 2020, she sent a bundle of documents to her solicitor saying that she wished to pursue the matter. As to why she did not communicate with her solicitor during the application appeal period, she said:
I was still suffering from a lot of anxiety so anything to do with this claim made me cry and I really struggled to get those things done. So even when it did come to my (indistinct) I think I was distracting. [9]
[9] Transcript, 24 September 2020, 18.
The explanation that she had an aversion to thinking about the Comcare claim has a ring of truth. However, it is hard to believe that she was too busy to contact her solicitor and tell him to file an application for review. She is clearly a competent person, engaged in a demanding role with the Department, with sufficient capacity to assist a friend move his business, to get engaged and plan a marriage ceremony. It is difficult to resist the implication that she had simply given up on the Comcare claim, or did not wish to think about it or the circumstances which had caused her pain to the point of suffering a workplace injury.
This is not to detract from the various stressors in the Applicant’s life during the period leading up to the November 2019 deadline and in the following months.
In around June 2019, she was appointed to a new role in the Department, with greater responsibilities. She was required to travel between Sydney and Newcastle on a regular basis. She developed a medical issue with her left leg, which contributed to a motor vehicle accident in July 2019. She then had to take public transport.
At the hearing she was asked about this:
MR McKESSAR: Okay. I thought that what I would do is split the matter up into different times and certain events. I’d like to start with 4 September 2019 which is when the confirmatory decision was made. Ms Hodges, I’d just like to ask you what your circumstances were at that time, firstly perhaps with respect to your employment? --- I’d just started a new job. I had to move to Canberra. I didn’t want to go back to the job I was at, I took a promotion in Canberra. I was settling in. I had to leave my son at home to do year 11. So that I could take the job in Canberra I was driving home every weekend backwards and forwards. But just before that when I first moved to Canberra I had – was hospitalised. I had a leg injury and couldn’t walk. And I had a car accident and wrote my car off. I was driving – I was unable to drive home every weekend so I was coming home by public transport which was about eight hours transport home, and then eight hours back on a Sunday so that I could support my kids. I had three children. The eldest, Peter, suffers from a medical condition and we were having a bit of trouble with him where he was not wearing his medical alert. Peter has only half-an-hour if he breaks a bone to have a cortisone injection that will – otherwise he just will die of shock. So he was going through some issues there, a bit of depression. He’d been in – hospitalised with that before. Then my middle son… was suffering from substance abuse and we were trying to help him get off drugs. And during September he’d gone back to uni and we were helping him to stay at uni and stay on the right track. My youngest son, Nicholas, because we’re such a close family, with me moving to Canberra it was a lot harder than I realised. I hadn’t spent a lot of time with the kids. So the job I had in Canberra was – it was quite full-on, it was very busy. So I was working long hours there, getting home exhausted, ringing the kids every night for hours, and then getting up and doing public transport to work as well.
Was there an issue with your mother or mother-in-law? --- It was actually – I call her my aunt but she’s not my aunt. She suffers from dementia. She’s quite – she’s 90 and that’s been ongoing. I have spent a lot of time with her. She’s in Sydney and I’m actually her only family in Australia, she’s English. She was married or she was partners with my aunt and now I’m her only person. So every time the doctor or she needed me, I’d have to rush to Sydney and I’m still doing that now.
So that’s the position around about from the middle of 2019 onwards? --- Yes.
That’s leading up to the period of September where this decision was made? --- Yes.
Confirmed, sorry? --- Yes.
Now, can you tell me about issues in relation to your marriage? --- I was – during that time I started – I got engaged, we decided to get married pretty quickly. We got married on 2 November so it was quite a lot of organising to do in a few months with all the other family issues that I had, as well as what he had going on as well. So there was never really a spare minute for anything else apart from jobs, I suppose. [10]
[10] Transcript, 24 September 2020, 6-7.
In submissions prepared for the EOT application, her solicitor notes:
The [Applicant] was married on 1 November 2019. As a result of the onerous nature of her new position, her wedding and certain personal issues including some personal difficulties that one of her three children was having, the [Applicant] lacked the time and perhaps the focused concentration required to pursue a reconsideration application.[11]
[11] Submissions as to late lodgement of application to review dated 19 August 2020.
The Applicant provided a document dated 23 September 2020 setting out, in chronological order, a list of events occurring between October 2019 and July 2020.
The entries for October 2019 refer to “wedding organisation (short engagement)”. The list also notes some ongoing health issues and that she was taking public transport to and from Canberra. Her middle son was struggling with anxiety.
The activities for November 2019 are listed as follows:
Wedding/honeymoon (3 weeks leave)
Assisted a friend to relocate his business after he went through some tough times… A lot of work after hours to make room for him.
The Applicant was promoted again in January 2020 and her new position required her to coordinate activities relevant to the bushfire and COVID-19 situations.
In addition, her 23 year old middle son was assaulted and hospitalised in January. It appears that he was using drugs and the Applicant was doing all she could to help him break free. In April, he was murdered. For the Applicant, this tragic event marks a dreadful low point for the past year.
I have considered whether that factor alone might justify the exercise of discretion in her favour. This dreadful occurrence provides a powerful explanation for missing a litigation deadline; however, it occurred in April 2020, some five months after the deadline. Without detracting in any way from its tragedy or meaning, it is one amongst other salient factors to be considered in assessing the Applicant’s conduct during the relevant period. I also note that from around about the time that time ran out on 3 November 2019, she was no longer alone in the sense that she remarried, and thereafter had someone else with whom to share life’s burdens.
Prejudice to the Respondent
The Respondent is an insurer and a public institution, and has a significant interest in knowing that it has no liabilities beyond a definite period. The ultimate resolution of a Comcare claim for workplace injury in a contested case will turn on the quality of evidence, including critical evidence regarding the management of the original complaint, the interactions between the Applicant and her work colleagues, and what the employer knew about the Applicant’s pre-existing anxiety disorder. The quality of evidence relating to such matters degrades with time, with unpredictable consequences. I also note that the particular workplace has been heavily impacted by factors such as bushfires and pandemic. It is a dynamic and challenging workplace favouring the rapid resolution of workplace disputes so as to avoid unnecessary distractions.
The prejudice that might be suffered by the Respondent by the grant of an extension of 298 days to progress the substantive claim is a significant consideration. It may result in serious prejudice to Comcare, which would need to meet the claim a considerable time after the original occurrences, arising in a workplace significantly impacted by recent events such as the bushfires and the pandemic.
Does the Applicant have an arguable case?
An extension of time application should be refused where it appears that the merits of the substantive application are futile.
In determining whether there is at least an arguable case in favour of the Applicant, one should have regard to the evidence supporting the application, without undertaking a wholesale merits review. It is of course not incumbent on the Applicant to show that the substantive application is likely to succeed.
It would seem that on the basis of the medical reports and the concessions made by Comcare, the Applicant has an arguable case. The Respondent accepts that the Applicant’s case is not without merit. The application cannot be described as futile.
Evaluation
I do not think that the evidence supports a finding that the Applicant was unable, by reason of her mental health condition, to exercise her review rights within the specified period. She was able to undertake complex tasks including wedding planning and providing logistical support to a friend in need. There is simply no reason to assume that she was incapable of picking up the phone and providing instructions to her solicitor on her Comcare claim.
An explanation for her failure to do so may be found in two factors. First, she appears to have developed a psychological aversion to thinking about the claim at all, and alluded to this during the hearing. Secondly, as noted above, she does not appear to have had much communication with her solicitor until June 2020 regarding the ongoing carriage of the matter. In fairness to her solicitor, this issue was not fully explored or explained during the hearing.
I accept that the Applicant faced many challenges at work and at home, including serious health problems afflicting both her and her family, and then the tragic loss of her son in April 2020. But overall, I do not think she has provided a satisfactory explanation for failing to meet the time limit of 3 November 2019, a time limit that passed many months before the tragic loss of her son.
I accept that an application for an extension of time may well succeed even in the absence of a satisfactory explanation. I also accept that it cannot be said that the substantive matter is entirely without merit, doomed to fail or futile. These factors tend to cancel each other out.
The Respondent argues that as a public statutory insurer, Comcare will suffer prejudice if this matter is allowed to proceed 298 days out of time, and for the reasons given previously, I am inclined to agree.
The Respondent also argues that the Applicant has been dilatory in prosecuting her claim, and that it would be unfair to other claimants who have been denied extensions of time even for shorter periods. Although each case has its special circumstances, the element of fairness as between different individuals is very important in preserving public trust in the decision making of the Tribunal.
I think that ultimately this case turns on the very substantial period of the extension sought and the real possibility of prejudice to the Respondent. Overall, the material presented to the Tribunal does not satisfy the well-established criteria for a grant of an extension of time.
I am not satisfied that it is reasonable in all the circumstances to grant an application for an extension of time.
DECISION
The application for an extension of time under section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) is refused.
I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
................................[sgd]........................................
Associate
Dated: 24 December 2020
Date of hearing: 24 September 2020 Solicitors for the Applicant: Mr R McKessar, Braye Cragg Solicitors Solicitors for the Respondent: Ms K Watson, HBA Legal
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