Hutchinson and Comcare (Compensation) - [2018] AATA 4600

Hutchinson and Comcare (Compensation) [2018] AATA 4600 (20 November 2018)
Division:GENERAL DIVISION
File Number: 2018/3428
Re:Karen Hutchinson
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Brigadier A G Warner, Member
Date:20 November 2018
Date of written 14 December 2018

reasons:
Place:Perth

The Tribunal affirms the decision under review.
........................[sgd]................................................
Brigadier A G Warner, Member
CATCHWORDS
REHABILITATION SAFETY AND COMPENSATION – whether time should be extended for review of Comcare decision – length of delay – explanation for delay – awareness of appeal rights – conduct of applicant – prejudice – merits of substantive application – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 34J, s 34J(c)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth) – s 14, s 60(1), s 62, s 62(3)
CASES
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Comcare v Willems (1996) 43 ALD 253
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 334
Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121
Lucic v Nolan (1982) 45 ALR 411
Mason and John Holland Pty Ltd (Compensation) [2018] AATA 415
Secretary, Department of Family and Community Services v Roberts [2003] AATA 269
Zizza v Federal Commission of Taxation (1999) 55 ALD 451
REASONS FOR DECISION
Brigadier A G Warner, Member
14 December 2018
INTRODUCTION

Ms Hutchinson is seeking review of a Comcare decision dated 12 June 2018 which determined that “your request for an extension of time to lodge a request for reconsideration of the determination dated 9 February 2016 is not allowed and Comcare will not be undertaking a reconsideration of this matter” (T37/225). The determination dated 9 February 2016 declined liability for agoraphobia and binge eating under s 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) (T28/146-150).
A hearing was conducted on 20 November 2018. Ms Hutchinson did not attend the hearing. In the week prior to the hearing, Ms Hutchinson requested that the hearing be vacated and that her application be resolved on the papers.
Section 34J of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) provides for circumstances in which a hearing may be dispensed. However, s 34J(c) of the AAT Act requires the consent of the parties. In this matter, the Respondent opposed Ms Hutchinson’s request for a hearing on the papers. Further, the Tribunal did not want to pursue a course that might limit Ms Hutchinson’s opportunities to progress her case or the Tribunal’s own need to question the parties during a hearing. The Tribunal carefully considered Ms Hutchinson’s request and decided to proceed to the hearing, allowing Ms Hutchinson to attend by telephone conference.
Before the hearing commenced, three attempts were made to contact Ms Hutchinson without success. Two further attempts were made to contact her prior to the Tribunal delivering an oral decision and reasons for decision. Those attempts were also unsuccessful.
In the…

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.

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Details

Case: [2018] AATA 4600
Decision Date: 20 November 2018

CaseChat Overview and Summary

This matter concerned an application by Ms Hutchinson to the Administrative Appeals Tribunal (AAT) for review of a Comcare decision dated 12 June 2018. This decision had refused Ms Hutchinson's request for reconsideration of an earlier Comcare determination dated 9 February 2016, which had disallowed her claim for agoraphobia and binge eating. Ms Hutchinson's request for reconsideration had been made on 6 June 2018, significantly outside the 30-day time limit prescribed by section 62(3) of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act).

The AAT was required to determine whether the reviewable decision of 12 June 2018, which refused an extension of time for Comcare to reconsider its 9 February 2016 determination, was correct. This involved considering whether an extension of time should be granted to allow for reconsideration of the original determination. In assessing this, the Tribunal was guided by established legal principles, including the cause of and explanation for the delay, the applicant's conduct leading to the delay, the consequences of the delay to the compensating authority, and the merits of the substantive application.

The Tribunal found that Ms Hutchinson's request for reconsideration was approximately 818 days out of time, which it considered a very significant delay. While acknowledging that an acceptable explanation for delay is not a pre-condition for success, the Tribunal noted that such an explanation is a relevant matter for consideration. The Tribunal accepted the respondent's submissions regarding the explanation for the delay, the applicant's conduct, and her awareness of appeal rights, finding them consistent with the material before it. The Tribunal also considered the public interest in the timely finalisation of decisions and the efficient conduct of the merits review process.

Weighing all the relevant factors, the Tribunal concluded that it was not reasonable in all the circumstances to grant an extension of time. Consequently, the Tribunal refused Ms Hutchinson's application for an extension of time and affirmed the reviewable decision of 12 June 2018.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

After the hearing and delivery of the oral decision and reasons for decision, Ms Hutchinson requested written reasons. The written reasons which follow are distilled from the edited transcript of the hearing. BACKGROUND By determination dated 9 February 2016, Ms Hutchinson’s claim for agoraphobia and binge eating was disallowed under s 14 of the SRC Act (T28/146-150). On 15 December 2016, Ms Hutchinson applied to the Federal Court for review of the 9 February 2016 decision and other decisions (T30/153-187). On 13 April 2018, the Federal Court dismissed the application (Exhibit R1, para 3.14 and T35/220-221) and on 6 June 2018, Ms Hutchinson requested reconsideration of the determination dated 9 February 2016 and an extension of time to request that consideration (T36/223). By reviewable decision dated 12 June 2018, the request for consideration of the 9 February 2016 determination was refused pursuant to s 62(3) of the SRC Act (T37/224-226). On 22 June 2018, Ms Hutchinson applied to this Tribunal for review of the reviewable decision (T2/3-13). In her application for review of the decision made to this Tribunal, Ms Hutchinson gave her reasons for the application as follows: … [The] Assistant Director of the Disputed Claims team has decided not to permit an extension of time to enable Comcare to reconsider its decision of 9 February 2016 as made by the primary delegate … I explained the main reasons for why I had made my request out of time, however, … [the Assistant Director of the Disputed Claims] was unconvinced by those reasons and stated she considers I have merely rested on my rights and changed my mind to ask for a reconsideration without further consideration of any of the impediments I had originally cited. … [The Assistant Director of the Disputed Claims] is quite incorrect when she states that I rested on my rights with regard to this matter. In fact, there has never been a time since 9 February 2016 when I haven’t been actively agitating this matter either before Comcare or the Federal Court of Australia.I didn’t request a reconsideration of … [the primary delegate]’s decision at the time because I had been provided with unequivocal evidence of her inability to make a decision that wasn’t infected with procedural prejudice and bias, as had been evidenced in her preceding denial decision of 11 December 2015.It was for that reason that I took the 11 December 2015 decision together with the decision of 9 February 2016 and her refusal to grant a debt waiver (also made by [the primary delegate]) to the Federal Court of Australia under the provisions of the ‘Administrative Decisions (Judicial Review) Act 1977’. (ADJR)The matter was only recently determined by the Court, hence my late request to Comcare to reconsider the decision of 9 February 2016.Irrespective of the outcome of the ADJR claim, the issue that has been constantly ignored and dismissed by Comcare to my ongoing detriment has been the fact that … [the primary delegate] based her original decision to deny my ‘agoraphobic avoidance’ or ‘agoraphobia’ condition (however described) on medical information sought by means of a section 71 notice being served on my ex-employer.It was an impermissible release and breach of the Privacy Act 1988 as was the ‘disclosure’ consequently made to Dr. Kevin O’Daly on which he was to base a (biased and prejudicial) report on which would then allow [the primary delegate] to issue another denial of liability decision. Which she obviously did.These matters are yet to be prosecuted under the Criminal Code Act 1995 and the Privacy Act 1988 while the results have been used by Comcare in such an impermissible and unlawful way they cannot be relied on for making legitimate administrative decisions, least of all because of a denial of procedural fairness that results.It is highly concerning that … [The Assistant Director of the Disputed Claims] is once again making a decision on my claim where a clear conflict of interest exists. [The Assistant Director of the Disputed Claims] … routinely makes administrative decisions on my claims that deliberately and recklessly avoid any and all adherence to the APS Values and Code of Conduct for the sole purpose of denying rights I am entitled, by legislative instrument, to receive.Comcare is notably devolving its decision making responsibilities onto the AAT in relation to as many of my claims as it can because they have found it is proving to be a very effective means for delaying me access to my entitlements, especially as the Tribunal does not make it its business to call Comcare to account for the routine abuses and exploitative matters it takes to the Tribunal and Courts as a means of outstanding liability management (T2/7).ISSUES

Evidence

Evidence Before The Court

Paragraph 2 of the Respondent’s Statement of Issues, Facts and Contentions (Exhibit R1) provides that the parties to this application agree that the following issues fall for consideration by the Tribunal:(a)Whether the reviewable decision dated 12 June 2018 is correct and therefore should be affirmed or alternatively, whether an extension of time to seek reconsideration should be granted and the request for reconsideration remitted to the respondent for reconsideration of the determination dated 9 February 2016.(b)The reviewable decision decided that because the request for reconsideration of the determination dated 9 February 2016 was made outside the time prescribed by s 62(3) of the SRC Act the reviewable decision maker could not undertake the requested consideration.(c)This requires consideration of the following principles set out in Comcare v Willems (1996) 43 ALD 253:(i) the cause of, and explanation for, the delay;(ii) the applicant’s conduct leading to the delay;(iii) the consequences to the compensating authority of the delay; and(iv) the merits of the substantial application.EVIDENCE The Tribunal had before it the following evidence:·“T Documents” (T1-T39, pp 1-266); ·Submission of the Applicant in Support of Claim AAT 2018/3428, dated 10 September 2018 (Exhibit A1);·Respondent’s Statement of Issues, Facts and Contentions, including Annexures A-D, dated 8 October 2018 (Exhibit R1); and·Respondent’s Statement of Issues, dated 2 August 2018 (Exhibit R2).LEGAL PRINCIPLES AND AUTHORITIES The Tribunal now turns to the legal principles and authorities relevant to this matter, and particularly those in relation to the principles or factors outlined at paragraph 10 above. The decision by the determining authority (Comcare), to refuse the extension of time for a request for reconsideration, is reviewable by this Tribunal as it was made under s 62 of the SRC Act and falls within the SRC Act’s interpretation of a reviewable decision at s 60(1) of the SRC Act. In paragraphs 3.1 to 3.4 of Exhibit R1, the Respondent sets out a comprehensive record of authorities relevant to an extension of time application (as extracted from Mason and John Holland Pty Ltd (Compensation) [2018] AATA 415 at [16]). The authorities establish factors which must be considered when exercising the discretion to extend time for an application to be made. These factors include:(a)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) (Lucic).(b)It is not a pre-condition for success in an application for an extension of time that an acceptable explanation for delay must be given. It is, however, 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 Crimes Compensation Tribunal [1993] VicRp 21; [1993] 1 VR 297 at 302).(c)Action taken by the applicant other than by making an application to the court (Tribunal) 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) (Doyle).(d)Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor mitigating against the grant of an extension. (See Doyle at 287 and Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541).(e)The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at 416).(f)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 417). (g)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 (tribunal’s) discretion (Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528).

Decision

Reasons for decision

The Tribunal, having regard to all the evidence and the circumstances of this application and weighing the relevant factors discussed above, concludes that it is not reasonable in all the circumstances for an extension of time to be granted. It follows that the decision under review, dated 12 June 2018, is affirmed. DECISION For the reasons given, the Tribunal refuses Ms Hutchinson’s application for an extension of time to seek review of the Comcare decision dated 9 February 2016 and affirms the decision under review in these proceedings, being the Comcare decision dated 12 June 2018.

Ratio Decidendi

Legal Principle Established

The Tribunal notes that in his reasons for judgment dated 13 April 2018 (Exhibit R1), Barker J considered the following factors relevant in considering an extension of time application:…explanation for the delay; prejudice to the applicant if an extension of time is not granted; prejudice to the respondent and any third parties if an extension is granted; nature of the decision and, in that context, relevant public interest considerations including the need for finality in litigation; and the merits of the substantive application. In addition, it is also relevant to consider the steps taken by the applicant other than pursuing judicial review proceedings. See Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 186; Hamden v Secretary, Department of Human Services [2013] FCA 3; and Malek Fahd Islamic School Limited v Minister for Education and Training [2017] FCA 757 (T35/216).CONSIDERATION The Tribunal now turns to the consideration of the factors.Length of delay Section 62(3)(b) of the SRC Act provides that a request for reconsideration of a determination shall “be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows”. In the present matter, Ms Hutchinson was notified of the determination dated 9 February 2016 by email that same date and accordingly, the request for reconsideration should have been made by 10 March 2016. Ms Hutchinson lodged her request for reconsideration on 6 June 2018, and by the Respondent’s calculation that was some 818 days out of time. The Respondent contends that 818 days is a significant delay in light of the allowed 30-day time limit. In Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 334, Wilcox J stated at [348] that:prescribed period… is not to be ignored… Indeed, it is the prima facie rule that proceedings commenced outside of the period will not be entertained… The Tribunal notes that in general terms it is in the public interest in the efficient conduct of the merits review process that timely decisions are made and are acted on with finality. Even in circumstances where a delay is not considered to be lengthy, the brevity of the extension sought does not, however, lead automatically to an order extending the time. The Tribunal refers to Secretary, Department of Family and Community Services v Roberts [2003] AATA 269 at [16]. Taking this length of delay factor alone, the Tribunal considers that the delay in this matter is very significant and weighs against the granting of an extension of time.Explanation for delay, awareness of appeal rights and the conduct of the Applicant The Respondent’s submissions regarding these factors are laid out in Exhibit R1, at paragraphs 3.9 to 3.17. Having carefully considered the relevant evidence, the Tribunal considers that these submissions are consistent with the material before it and so accepts them.