Hutchinson and Comcare - [2016] AATA 650

Hutchinson and Comcare [2016] AATA 650 (29 August 2016)

Division

GENERAL DIVISION

File Number

2016/2186

Re

Karen Hutchinson

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Brigadier AG Warner, Member

Date 29 August 2016

Place Perth
The applicant’s application for an extension of time to lodge an application for review of a decision of a Comcare delegate dated 17 September 2013 is refused.
..........[Sgd]..............................................................
Brigadier AG Warner, Member
CATCHWORDS
PRACTICE AND PROCEDURE – application for extension of time to lodge application for review of a Comcare decision of 17 September 2013 – explanation not satisfactory - lack of merit of applicant’s application for review – significant delay – Tribunal not satisfied that reasonable in all the circumstances to grant extension of time – application for extension of time refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 – s(3)(3) - s 29(2) – s 29 (7) – s 29(8)
Safety, Rehabilitation and Compensation Act 1988 – 60 – s 65(4)
CASES
Comcare v A’Hearn (1993) 45 FCR 441
Comcare v Muir [2016] FCA 346
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Hutchinson and Comcare [2014] AATA 588
Re Johnson and Commonwealth of Australia [1990] AATA 1
REASONS FOR DECISION
Brigadier AG Warner, Member
29 August 2016
INTRODUCTION

On 28 April 2016, Ms Hutchinson lodged an application with the Tribunal for an extension of time to make an application for review of a decision of 17 September 2013 whereby a delegate of Comcare refused to make a reconsideration determination of a decision dated 4 September 2013.
Ms Hutchinson stated her reason for the application as: “I have just become aware that a refusal to make a decision can be considered as a ‘decision’ for the purposes of the AAT Act.”
A telephone interlocutory hearing was conducted on 4 July 2016.
BACKGROUND
A summary of the background facts to this matter was provided by Comcare in the Respondent’s Submission on Extension of Time dated 26 May 2016 at paragraphs 1.1-1.27. That summary was not in dispute and although lengthy, the summary is repeated below because of its complex and protracted nature.
The Applicant was employed by Comcare as a Claims Services Officer (APS 4) and had been employed as a Claims Services Officer since 1988. The Applicant lodged a claim for workers’ compensation dated 8 February 2011 which states her claim is depression and anxiety, which she first noticed on 5 March 2010. The claim was based on an incident at a ‘Respect and Diversity’ workshop on 5 March 2010. The claim form states the Applicant’s anxiety was precipitated by this event.
The Applicant went on long service leave on 16 April 2010. On 3 August 2010, the Applicant sent an email to the Respondent and requested her leave be converted to half pay and extended as far as possible. The email was signed off “transiting the Panama Canal at present”. The leave extension was approved and on 8 December 2010 the Applicant sent an email to the Respondent stating her holiday…

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 Hutchinson and Comcare

Details

AGLC: Hutchinson and Comcare [2016] AATA 650
Case: [2016] AATA 650
Decision Date: 29 August 2016

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by Ms Hutchinson for an extension of time to lodge an application for review of a Comcare decision dated 17 September 2013. Comcare, the respondent, opposed the application. The matter came before Brigadier AG Warner, Member, for determination.

The primary legal issue before the Tribunal was whether it was reasonable in all the circumstances to grant Ms Hutchinson an extension of time to lodge her application for review, given the significant delay. This required the Tribunal to consider the principles established in cases such as *Hunter Valley Developments Pty Ltd v Cohen* and *Comcare v A’Hearn*, which guide the exercise of discretion in such matters. These principles include assessing the applicant's actions, any prejudice to the respondent, wider public prejudice, the merits of the substantive application, and fairness to other persons in a like position. A key consideration was whether the applicant had provided a satisfactory explanation for the delay.

The Tribunal noted that the application for review was lodged over two years and five months after the prescribed time limit. Ms Hutchinson had not contested Comcare's submission that she had taken no action to indicate dissatisfaction with the decision between a Federal Court hearing and the lodgement of the current application, a period of approximately 17 months. While an acceptable explanation for delay is not a prerequisite for granting an extension, the Tribunal found that Ms Hutchinson's explanation was not satisfactory and that she had not demonstrated that it was reasonable in all the circumstances to grant the extension. The Tribunal also considered the merits of the substantive application, which were not detailed in the provided text, but concluded that this factor, along with others, did not support granting the extension.

Consequently, the Tribunal refused Ms Hutchinson's application for an extension of time to lodge her application for review of the Comcare decision.

Orders

Orders of the court

The applicant’s application for an extension of time to lodge an application for review of a decision of a Comcare delegate dated 17 September 2013 is refused.

Background

Background to the litigation

A telephone interlocutory hearing was conducted on 4 July 2016.BACKGROUND A summary of the background facts to this matter was provided by Comcare in the Respondent’s Submission on Extension of Time dated 26 May 2016 at paragraphs 1.1-1.27. That summary was not in dispute and although lengthy, the summary is repeated below because of its complex and protracted nature. The Applicant was employed by Comcare as a Claims Services Officer (APS 4) and had been employed as a Claims Services Officer since 1988. The Applicant lodged a claim for workers’ compensation dated 8 February 2011 which states her claim is depression and anxiety, which she first noticed on 5 March 2010. The claim was based on an incident at a ‘Respect and Diversity’ workshop on 5 March 2010. The claim form states the Applicant’s anxiety was precipitated by this event. The Applicant went on long service leave on 16 April 2010. On 3 August 2010, the Applicant sent an email to the Respondent and requested her leave be converted to half pay and extended as far as possible. The email was signed off “transiting the Panama Canal at present”. The leave extension was approved and on 8 December 2010 the Applicant sent an email to the Respondent stating her holiday and break from work had been wonderful and which team her preference was for, upon returning to work. On 3 January 2011, the Applicant sent an email to the Respondent, while on extended leave, and informed them she was having some health concerns which required some extensive tests and scans and that she would not be in the office that week. On 12 January 2011, the Applicant sent an email to the Respondent stating she is likely to be scheduled for surgery as it appears a hernia had developed at the site of a previous surgery. A medical certificate from Dr Kathryn Dunn dated 7 March 2011 states the Applicant first attended on 31 January 2011. A medical certificate (Victorian Workcover) dated 7 February 2011 from Dr Dunn states the Applicant was first off work from 16 April 2010 due to depression and anxiety from bullying at work. A certificate of attendance dated 13 January 2011 states the Applicant attended St Vincent’s Hospital as on (sic) outpatient and that she will be unable to work for 2 weeks. By determination dated 23 May 2011 liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 was denied on the basis that it was excluded on the basis that it resulted from reasonable administrative action. By reconsideration dated 25 July 2011, the original determination was revoked and liability accepted for ‘Major Depression – single episode’, with date of injury 31 January 2011. The Applicant then made an application to the Administrative Appeals Tribunal dated 30 October 2013, which was filed 1 November 2013. The grounds of the appeal were: “Not the compensable injury I claimed for, not the date of injury I claimed for, not afforded natural justice or procedural fairness, NWE under s8 of the SRC Act 1988 not correctly determined, relevant period under s9 of the SRC Act 1988 not considered”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal, having regard to all the evidence and the circumstances of this application, and weighing the relevant considerations listed above, concludes that it is not reasonable in all the circumstances for an extension of time to be granted. DECISION For the above reasons, the Tribunal refuses to grant, pursuant to s 29(7) of the Act, the applicant’s application for an extension of time to lodge an application for review of a decision by a delegate of Comcare, dated, 17 September 2013.

Ratio Decidendi

Legal Principle Established

The Tribunal had before it the following evidence:·Respondent’s Submission on Extension of Time dated 26 May 2016 (Respondent’s Submission);·Applicant’s Submission for an Extension of Time dated 3 June 2016 (Applicant’s Submission); and ·The oral evidence of the applicantCONSIDERATION As noted by the Tribunal (Deputy President R K Todd) in Re Johnson and Commonwealth of Australia [1990] AATA 1, it has been customary for the Tribunal, in determining applications for an extension of time for making an application for review, to be guided by the principles enunciated by the Federal Court of Australia (Wilcox J) in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-350. Those general principles were summarised in Re Johnson (at para 19) as follows: (i) It is a prima facie rule that proceedings commenced outside the prescribed period will not be entertained. An extension of time will, however, be granted if it is proper to do so.(ii) Consideration is to be given to the action taken by the applicant. Did he or she ‘rest on his or her rights’ so as to lead the decision maker to believe that the matter was concluded, or did he or she continue to make the decision maker aware that the decision was being contested?(iii) Consideration should be given to whether any prejudice to the respondent would be caused by the grant of an extension.(iv) There being no real prejudice to the respondent, consideration must be given to whether there will nevertheless be a wider prejudice to the public in terms of disruption to established practices…(v) Consideration of the merits of the substantial application should be made to see if these indicate that an extension of time should be granted.(vi) Finally, consideration should be given to whether it is fair as between the applicant and other persons in a like position to grant the extension of time. Although, as held by the Full Federal Court in Comcare v A’Hearn (1993) 45 FCR 441, the provision of an acceptable explanation for delay in lodging an application is not an essential pre-condition of the favourable exercise of the discretion to grant an extension of time for the lodging of that application, the Full Court said (at 444) that “it is to be expected that such an explanation will normally be given, as a relevant matter to be considered…..”Length of delay Section 29(2) of the Act requires that an application for review must be made within 28 days of receipt of the relevant decision. Subsection 65(4) of the SRC Act modifies this requirement such that the prescribed time for making an application is the period commencing on the day on which the decision is made and ending on the sixtieth day after. In this matter, Ms Hutchinson stated in her application for an extension of time that she received the decision on 17 September 2013 and sought an extension of time until 28 April 2016. The delay is more than two years and five months beyond the prescribed time. Before the Tribunal, the respondent submitted that: ‘beyond the tribunal hearing in the Federal Court the applicant has not made any – has not taken any action to indicate to the respondent that she was dissatisfied with this decision”. This submission was not contested. The Tribunal notes that some 17 months elapsed between the Federal Court decision and the lodgement of the current application on 28 April 2016.

Division	GENERAL DIVISION
File Number	2016/2186
Re	Karen Hutchinson
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Brigadier AG Warner, Member
Date	29 August 2016
Place	Perth