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.
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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 588Re 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…
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- AGLC
- Hutchinson and Comcare [2016] AATA 650
- Case
- [2016] AATA 650
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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.