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Hodges and Comcare (Compensation)

Hodges and Comcare (Compensation)

Case [2020] AATA 5210 24 December 2020

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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 109
REASONS 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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Hodges and Comcare (Compensation)

Details

AGLC: Hodges and Comcare (Compensation) [2020] AATA 5210
Case: [2020] AATA 5210
Decision Date: 24 December 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by Ms Hodges for an extension of time to make an application to review a decision. The core of the dispute concerned whether the applicant had provided sufficient grounds to justify the significant delay in seeking this review.

The Tribunal was required to determine whether it was reasonable in all the circumstances to grant the extension of time sought by Ms Hodges. This involved assessing factors such as the length of the delay, whether the applicant had legal representation during the period of delay, the potential prejudice to the respondent (Comcare), and the public interest. The Tribunal also considered whether the applicant had effectively "rested on her rights" by not pursuing the review earlier, and the merits of the substantive application for review itself.

In reaching its decision, the Tribunal applied the principles governing extensions of time under section 29(7) of the *Administrative Appeals Tribunal Act 1975* (Cth). The Tribunal found that the applicant had not demonstrated that it was reasonable to grant the extension of time, taking into account the substantial delay, the applicant's legal representation, and the potential prejudice to Comcare and the public interest. The merits of the substantive application were also a relevant consideration, but the primary focus was on the reasonableness of the delay.

Consequently, the Tribunal refused the application for an extension of time.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Hodges and Comcare (Compensation) [2020] AATA 5210

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 13 of 13 shown

Noonan and Comcare (Compensation)
[2019] AATA 515 Para 18

…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 […
Peters v Comcare
[2013] FCA 1361

…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 109 REASONS FOR DECISION Emeritus Professor P A Fairall, Senior Member 24 December 2020 INTRODUCT…
Bahonko v Nurses Board of Victoria (No 4)
[2007] FCA 1449 Para 18

…fined 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].…
Phillips v Australian Girls' Choir Pty Ltd & Anor
[2001] FMCA 109 Para 18

…on) [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].…
Comcare v A'Hearn
[1993] FCA 498 Para 18

…es 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].…
Hunter Valley Developments Pty Ltd v Cohen
[1984] FCA 186 Para 18

…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). Th…
Whitfords Beach Pty Ltd v The Commissioner of Taxation for the Commonwealth of Australia
[1983] FCA 94 Para 19

…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).…
Wedesweiller v Cole
[1983] FCA 91 Para 19

…s 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).…
Lucic v Nolan
[1982] FCA 232 Para 19

…3; (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. I…
Ralkon v Aboriginal Development Commission
[1982] FCA 161 Para 19

…fied 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…
Doyle v Chief of General Staff
[1982] FCA 129 Para 19

…ted 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 aga…
Doyle v Chief of Staff
[1982] FCA 124 Para 19

…pplicant 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 fa…
Ralkon v Aboriginal Development Commission
[1982] FCA 153 Para 19

…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…

Legislation cited in this decision · 4

Safety, Rehabilitation and Compensation Act 1988 (Cth)
14, 5A 3 mentions (from Para 4)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
11 2 mentions (from Para 18)
Administrative Appeals Act 1975 (Cth)
29 1 mention
Administrative Appeals Tribunal Act 1975 (Cth)
1 mention (from Para 13)