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Jakovceski and Comcare (Compensation)

Jakovceski and Comcare (Compensation)

Case [2020] AATA 1917 13 May 2020

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Jakovceski and Comcare (Compensation) [2020] AATA 1917 (13 May 2020)
Division:GENERAL DIVISION
File Number(s):2020/1248
Re:Mr Stiv Jakovceski
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries AO
Date:13 May 2020
Date of Reasons: 25 June 2020
Place:Canberra

Pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975, the Tribunal refuses Mr Jakovceski’s application to extend the time in which to apply for review of the decision made by Comcare’s delegate dated 19 December 2018.
.......................................................................
Deputy President Gary Humphries AO
Catchwords
WORKERS COMPENSATION - PRACTICE AND PROCEDURE – Extension of time applications – significant delay – whether acceptable explanation of the delay – whether extension fair and equitable in the circumstances – merits of substantial application – duplication of claim with another claim already before the Tribunal – abuse of process considered – extension of time application refused
Legislation
Administrative Appeals Tribunal Act 1975 s 29
Administrative Decisions (Judicial Review) Act 1975
Safety, Rehabilitation and Compensation Act 1988 ss 16, 19, 65(4)
Cases
Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449
Binno and Comcare [2019] AATA 237
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Comcare v A'Hearn [1993] FCA 498
Comcare v Muir [2016] FCA 346
Comcare v Stefaniak [2020] FCA 560
Re Hunter Valley Developments Pty Limited v Minister of Home Affairs and Environment [1984] FCA 176
Karam and Comcare [2020] AATA 64
Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109
Svatos and Australian Capital Territory [2020] AATA 1413
REASONS FOR DECISION
Deputy President Gary Humphries AO
25 June 2020
INTRODUCTION

Mr Stiv Jakovceski has been a Protective Service Officer employed by the Australian Federal Police (AFP) since 2009. In that capacity he sustained a workplace injury – namely, aggravation of displacement of intervertebral disc - lumbar – with a deemed date of injury of 12 November 2011.
On 27 November 2018, Comcare determined that Mr Jakovceski had no present entitlement for medical expenses or incapacity payments under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). He requested reconsideration of that determination but, on 19 December 2018, Comcare affirmed its original decision.
On 3 July 2019, Mr Jakovceski made a worker’s compensation claim for chronic pain in relation to pain in his back. Comcare rejected this claim and affirmed that rejection on reconsideration. Mr Jakovceski has now made an application before the Tribunal for merits review of this rejection; a matter still before the Tribunal.
On 4 March 2020, Mr Jakovceski filed an application in the Tribunal for an extension of time in which to make an application for review of Comcare’s decision of 19 December 2018.
Mr Jakovceski was required to have made an application to the Tribunal for merits review of that decision within 60 days of receiving it: s 65(4) of the Act; s 29(2)(a) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). That limitation period expired…

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 Jakovceski and Comcare (Compensation)

Details

AGLC: Jakovceski and Comcare (Compensation) [2020] AATA 1917
Case: [2020] AATA 1917
Decision Date: 13 May 2020

CaseChat Overview and Summary

This matter concerned an application by Mr Jakovceski for an extension of time to lodge an appeal against a decision by Comcare. The dispute centred on Mr Jakovceski's claim for compensation for a lumbar disc condition, which Comcare had determined he had no present entitlement to. The application was heard by Deputy Gary Humphries Ao P of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether to grant Mr Jakovceski an extension of time to commence proceedings, given the significant delay in lodging the appeal. This required the Tribunal to consider whether there was an acceptable explanation for the delay and whether granting an extension would be fair and equitable in the circumstances, taking into account the merits of the substantial application and the potential for duplication with another claim already before the Tribunal. The Tribunal also considered whether the application constituted an abuse of process.

The Tribunal applied the presumptive rule that proceedings commenced outside the 60-day period will not ordinarily be entertained, as articulated by McHugh J in *Brisbane South Regional Health Authority*. This rule requires an applicant seeking an extension of time to demonstrate that their case is a justifiable exception to the principle that the welfare of the State is best served by limitation periods. The Tribunal found that Mr Jakovceski had not positively demonstrated that justice required granting him further time, noting that the opportunity to contest Comcare's decision had passed and that the application lacked sufficient grounds to support an extension after such a considerable delay.

Accordingly, the Tribunal refused Mr Jakovceski's application for an extension of time pursuant to section 29(7) of the *Administrative Appeals Tribunal Act 1975* (Cth).

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

This Tribunal is not inclined to overwrite the Hunter Valley Developments criteria. If Mr Jakovceski has a legitimate claim to compensation for chronic pain, the Tribunal will make a finding in his favour, if it comes to that. However, the opportunity to contest Comcare’s decision that he has no present entitlement to compensation for his lumbar disc condition has passed.CONCLUSION It is the presumptive rule that proceedings commenced outside the 60-day period will not be entertained. McHugh J in Brisbane South Regional Health Authority postulated this dictum at 553 – 554:The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension. In the present case, Mr Jakovceski has not positively demonstrated that justice is served by granting him further time to bring his claim. Drawing on the simplified test in Bahonko, it would seem apparent that there are one, and possibly two, legs missing from the three-legged stool that Mr Jakovceski needs to support an extension of time after such a relatively long period of delay. In all the circumstances, it would not be reasonable to grant an extension of time pursuant to s 29(7) of the AAT Act. Accordingly, the Tribunal refuses the application for such an extension of time.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Jakovceski and Comcare (Compensation) [2020] AATA 1917

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 18 of 18 shown

Svatos and Australian Capital Territory (Compensation)
[2020] AATA 1413 Para 11

…esweiller at pp 534-535. [2] Paragraphs [11]-[14] reproduce the Tribunal's enunciation of those principles in Svatos and Australian Capital Territory [2020] AATA 1413 at [22]-[25].…
Comcare v Stefaniak
[2020] FCA 560 Para 15

…f an identifiable biological cause for those symptoms. There cannot be an injury, ailment or aggravation in such circumstances: Comcare v Stefaniak [2020] FCA 560 at [3] to [7]. [16] Exhibit A1, 8.…
Karam and Comcare (Compensation)
[2020] AATA 64 Para 7

…hose decisions is another matter altogether. 39. Mr Jakovceski’s circumstances bear some resemblance to those of the applicant in Karam and Comcare [2020] AATA 64, whose explanation for delay was that he was despondent and discouraged. The Tribunal there observed at [29]: I am not positively satisfied that the ex…
Binno and Comcare (Compensation)
[2019] AATA 237 Para 7

…to engage his rights of review. I conclude that he has not provided a satisfactory explanation for the delay. [14] [14] See also Binno and Comcare [2019] AATA 237.…
Comcare v Muir
[2016] FCA 346 Para 22

…buse more generally is nonetheless apparent. The potential misuse of the claims process was squarely in the sights of Flick J in Comcare v Muir [2016] FCA 346 when he opined at [30] that: Nor does it promote good administration and the proper resolution of claims for compensation to encourage a course whereby cla…
Bahonko v Nurses Board of Victoria (No 4)
[2007] FCA 1449 Para 14

…In Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449 at [48] ( Bahonko ) the Federal Court condensed these considerations as: • the explanation of the delay; • any prejudice to the respondent; and • whether the applicant has an arguable case. CONSIDERATION…
Phillips v Australian Girls' Choir Pty Ltd & Anor
[2001] FMCA 109 Para 13

…The Federal Magistrates Court in Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109, summarised the new position following A’Hearn as follows (at [10]): In the light of A'Hearn's case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be m…
Brisbane South Regional Health Authority v Taylor
[1996] HCA 25 Para 10

…first day after a decision is made. In this respect it relied on the observations of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551: Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed.…
Comcare v A'Hearn
[1993] FCA 498 Para 12

…These principles were further refined in Comcare v A'Hearn [1993] FCA 498 ( A’Hearn ). In that case, the Full Federal Court upheld the decision of a primary judge who upheld an appeal from the Tribunal, which had refused an application for an extension of time within which to review a decision of Comcare. The cou…
Murchison, Ian McKenzie v Keating, Paul John
[1984] FCA 176 Para 11

…t principles governing an extension of time under s 29(7).[2] In Re Hunter Valley Developments Pty Limited v Minister of Home Affairs and Environment [1984] FCA 176 ( Hunter Valley Developments ) Wilcox J articulated the foundational criteria to be considered in an application for an extension of time to seek jud…
Whitfords Beach Pty Ltd v The Commissioner of Taxation for the Commonwealth of Australia
[1983] FCA 94 Para 11

…on are not only the "need for finality in disputes" (see Lucic at p 410) but also the "fading from memory" problem referred to in Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528. (c) Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material fa…
Wedesweiller v Cole
[1983] FCA 91 Para 11

…the "need for finality in disputes" (see Lucic at p 410) but also the "fading from memory" problem referred to in Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528. (c) Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating aga…
Hickey v Australian Telecommunications Commission
[1983] FCA 96 Para 11

…on and Douglas v Allen (Morling J, 3 April 1984, not reported) at p 18 with Lucic at pp 414-415 and Hickey v Australian Telecommunications Commission (1983) 48 ALR 517 at p 519. The reasons for this distinction are not only the "need for finality in disputes" (see Lucic at p 410) but also the "fading from memory" pr…
Lucic v Nolan
[1982] FCA 232 Para 11

…[1982] FCA 153; (1982) 43 ALR 535 at p 550) Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at p 416) It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanati…
Ralkon v Aboriginal Development Commission
[1982] FCA 161 Para 11

…sfied that it is proper so to do. The "prescribed period" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at p 550) Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 a…
Doyle v Chief of General Staff
[1982] FCA 129 Para 11

…maker aware that he contests the finality of the decision (who has not "rested on his rights": per Fisher J in Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283 at p 287) and a case where the decision maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Dougla…
Doyle v Chief of Staff
[1982] FCA 124 Para 11

…ke the decision maker aware that he contests the finality of the decision (who has not "rested on his rights": per Fisher J in Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283 at p 287) and a case where the decision maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman…
Ralkon v Aboriginal Development Commission
[1982] FCA 153 Para 11

…positively satisfied that it is proper so to do. The "prescribed period" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at p 550) Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan…

Legislation cited in this decision · 4

Safety, Rehabilitation and Compensation Act 1988 (Cth)
16, 19, 65(4) 4 mentions (from Para 2)
Administrative Appeals Tribunal Act 1975 (Cth)
29 2 mentions (from Para 5)
Administrative Decisions Judicial Review Act 1975 (Cth)
1 mention (from Para 11)
Road Transport (Safety and Traffic Management) Act 1999 (ACT)
1 mention (from Para 29)