Jakovceski and Comcare (Compensation)
[2020] AATA 1917
•13 May 2020
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 1413REASONS 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 on 17 February 2019. As the application for an extension of time was made on 4 March 2020, Mr Jakovceski seeks an extension of time of some 381 days (which I will call the relevant period).
A hearing, of Mr Jakovceski’s application for an extension of time, was conducted on 13 May 2020. In response to protocols adopted during the COVID-19 pandemic, the hearing was conducted via videoconference. At that time, I made an oral decision refusing Mr Jakovceski’s application.
On 18 May 2020, Comcare requested written reasons for the Tribunal’s decision.
For the reasons which follow, the Tribunal refuses his application.
THE RELEVANT LAW
Section 29(7) of the AAT Act provides as follows.
29 Manner of applying for review
...
(7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
This section permits the Tribunal to grant an extension of time to lodge an application for review of a reviewable decision if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.[1] Although there is a discretion, the Tribunal must be satisfied that it is reasonable in all the circumstances to grant an extension.
[1] In this decision the use of italics generally denotes a direct quote.
The Tribunal has many times before set out the relevant 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 judicial review under the Administrative Decisions (Judicial Review) Act 1975 of a decision (at [18]-[23]):
(a) Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the Court will not grant the application unless 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 (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 explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time (Duff at p 485; Chapman v Reilly, Neaves J, 9 December 1983, not reported, at p 7).
(b) Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make 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 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" 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 against the grant of an extension: see Doyle at p 287, Duff at pp 484-485, Hickey at pp 525-527 and Wedesweiller at pp 533-534.
(d) However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas at p 18, Lucic at p 416, Hickey at p 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon p 550, Becerra pp12-13) or of established practices (Douglas p 19) is likely to prove fatal to the application.
(e) The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic p 417, Chapman p 6.
(f) Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the Court's discretion: Wedesweiller 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].
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 court found (at [11]) that:
In our view the primary judge was correct in concluding that the reasons for decision reveal an error of law on the part of the Tribunal. The error was that the Tribunal considered that what is found was an inexcusable delay on the part of the solicitors could not constitute an acceptable explanation for the delay in making the application.
The court added (at [15]):
We note that the Tribunal used language that might be taken to suggest that it is a pre-condition for success in such an application that an acceptable explanation for the delay must be given. Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential precondition…
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 modified namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it's fair and equitable in the circumstances to extend time. In the light of the decision in Ahearn's case it is useful to set out in modified form the relevant principles in relation to the exercise of the Court's discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows:
• There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless 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).
• 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. It is 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 Client Compensation Tribunal [1993] VicRp 21: (1992) 1 VR 297 at 302).
• Action taken by the applicant other than by making an application to the court 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).
• Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p287).
• The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).
• 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 p 417).
• 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 discretion (Wedesweiller v Cole (1983) 47 ALR 528; [1983] FCA 94).
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
The Tribunal’s starting point is the dictum of Wilcox J in Hunter Valley Developments (at [18]) that it is the prima facie rule that proceedings commenced outside [the prescribed] period will not be entertained. The Tribunal also proceeds on the basis that the longer the interval between the expiry of the prescribed period and the lodging of an application for review, the greater the satisfaction that a decision-maker needs to have that there are good reasons to overlook the prescribed period.
At 381 days, the delay in these proceedings falls at the longer end of the spectrum of applications for an extension of time.
Explanation for delay
As the Federal Court made clear in A'Hearn (at [15]), there is no requirement that an applicant provide an acceptable explanation for delay. However, the absence of such an explanation is a matter that a decision-maker may take into account in determining whether it is reasonable to extend the time for making an application for review. In the normal course of events, the expectation of a reasonable explanation for delay would be greater the longer the period of that delay.
In the present proceedings, I consider that the explanation for the delay of 381 days is far from satisfactory or persuasive. Mr Jakovceski’s lawyers set out in his application for extension of time his explanation in the following terms:[3]
[Mr Jakovceski] is not a trained Lawyer and was unaware that he could appeal it to the AAT following his submission of a reconsideration. Mr Jakovceski was also in considerable pain with his back and was taking pain medication. Mr Jakovceski was also having a very difficult time with his personal life with his partner and the raising of an autistic son. Mr Jakovceski’s son is [non] verbal level 3 autistic which is top of the range and was requiring full time care at the time and did not have funding from the NDIS. Mr Jakovceski was also isolated and bullied at his workplace in the Australian Federal Police during that period. All these things compounded to make it very difficult for him to focus on an appeal which was due to be filed on 17 February 2019.
[3] Application for an Extension of Time for Making an Application for Review of Decision dated 4 May 2020, 2.
A statement of Mr Jakovceski dated 1 May 2020 was tendered. In the statement he said:[4]
My mental health has been a major factor in my delay in appealing this matter… I am on two medications for my mental health, Stilnox and Zoloft. These medications have severe side effects, commonly including drowsiness, dizziness, headaches, fatigue, worsened insomnia, nightmares, hallucinations, agitation, depression, impaired concentration, and loss of memory. My mental health condition and the side effects of these medications have seriously impacted my cognitive functioning.
[4] Exhibit A1, 3-4.
Mr Jakovceski gave evidence and was cross examined at the interlocutory hearing. Under cross-examination, he agreed that, to perform his job at the AFP, he has received training and must demonstrate a knowledge of and conversancy with the various operational protocols in force in that role, including on the use of firearms. He also agreed that he needed to have familiarity with relevant legislation and operational safety principles.
He agreed that when Comcare determined on 27 November 2018 that he had no present entitlement to compensation for his workplace injury, he was able to understand the document’s explanation of his right to reconsideration of that decision, and that he availed himself of that right. He also agreed that when Comcare affirmed its earlier decision, the letter advising him of this also contained a statement setting out his right to seek merits review by the Tribunal.
Mr Jakovceski confirmed he has a Bachelor of Communication degree.
A report dated 30 May 2018 of Dr Michael Hong, psychiatrist, was tendered. In it Dr Hong wrote:[5]
Mr Jakovceski's personality profiled revealed a relatively self-controlled, self-disciplined and organised individual…Mr Jakovceski had probable above average reasoning ability and demonstrated no overt signs of psychological dysfunction…
There was no problem with Mr Jakovceski's concentration or temper. Mr Jakovceski has never been one to feel suicidal, he has never threatened anybody.
Mr Jakovceski agreed in cross examination that he had good reasoning ability.
[5] Exhibit R1, 13.
Dr Hong also commented in his report:[6]
The main factor leading to Mr Jakovceski's psychological injury relates to interpersonal conflict with a supervisor, and being spoken to and managed in a way that he felt offended, targeted and mistreated.
Whilst there is a small contribution from his physical injuries and chronic pain, this is overall insignificant.
[6] Ibid, 18.
A progress note authored by Dr Andrew Pitcher, his General Practitioner, and dated 25 June 2018 was in evidence. The progress note observes of Mr Jakovceski that:[7]
He had nil delusions or perceptual abnormalities
He has had thoughts of worthlessness but would not carry out any plans of self harm
He is future orientated and is insightful and able to make decisions
[7] Ibid, 21.
A rehabilitation progress report dated 19 February 2019 in relation to Mr Jakovceski records:[8]
Mr Jakovceski has been performing pre-injury hours and modified duties from 5 February 2019. Mr Jakovceski's allocated suitable duties have been administrative tasks only at Exhibit Management Centre. Mr Jakovceski reported that he has been able to perform all allocated duties without exacerbation of symptoms.
[8] Ibid, 42.
A further rehabilitation progress report dated 18 April 2019 was tendered. It made a record of his progress of Mr Jakovceski in identical terms to those quoted in the previous paragraph.
A report from Pinnacle Rehab dated 23 July 2019 recorded:[9]
Mr Jakovceski reports that has attended treatment programmes related to his lower back injury and has developed a self-managed regime of [stretches] and exercises which support him to maintain full hours
Mr Jakovceski reports that although he was not able to continue with his pre-injury duties he has been working on full hours in an alternate role at Exhibits Management Centre.
The report also notes There is no medical barrier to return to work.[10]
[9] Ibid, 57.
[10] Ibid, 61.
A comprehensive progress report of Pinnacle Rehab dated 27 September 2019 recorded these matters:[11]
Mr Stiv Jakovceski is currently working within his certified capacity at the Exhibits Management Centre. Mr Jakovceski is performing suitable duties, which include the following activities:
·…
·Being conversant with all of the circumstances surrounding seized vehicles/trailers/motorcycles currently held in the ACTP EMC;
·Being conversant with relevant legislation concerning seized vehicles, such as section 10C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT)i.e. power to seize a motor vehicle for ‘Fail To Stop’
[11] Ibid, 68.
Mr Jakovceski agreed that he had commenced taking Zoloft and Stilnox, for anxiety/depression and insomnia respectively, in about March 2019.
It was put to him that he had been able to interpret and understand incoming information and react to it since 2018. He said that there were times when he would not have been able to do so, but agreed that, generally speaking, he could.
The Tribunal accepts that Mr Jakovceski was affected by both chronic pain and some degree of mental dysfunction or illness in the relevant period. These conditions would have affected his ability to function normally and, on occasions, could have inhibited his decision-making capacity. However, the evidence satisfies the Tribunal that there were at least substantial intervals during this period when he was functioning satisfactorily on a day-to-day basis and his decision-making ability was not impaired. As such, the two conditions cannot explain why more than a year elapsed before Mr Jakovceski actioned his appeal.
I am not persuaded that Mr Jakovceski was ignorant of or unable to understand the manner in which he would progress such an appeal, notwithstanding that he is not a trained Lawyer. He had independently taken two steps through the workers compensation process previously, including a request for reconsideration, relying apparently on the written documentation given to him. I accept the evidence that he was accustomed to reading legislation as part of his employment, and that his university degree suggests a level of intelligent engagement with documents that would put him in a better position to comprehend written instructions than the average citizen.
It is also significant that he was working throughout all but three months (at most) of the relevant period in an administrative role which required him to make decisions and organise himself and others. This does not suggest a person of impaired cognitive capacity. All the evidence points to him being able to discharge the responsibilities of his employment quite satisfactorily. It is difficult to see how Mr Jakovceski could have been capable of rational thought and judgement during working hours but to have lost that ability in his private time.
Similarly, the evidence from his medical records and the rehabilitation providers, though suggestive of some level of impairment, falls short of demonstrating that his mind was incapable of functioning in a reasonably efficient way. That evidence suggests that he had coping strategies and was reasonably resilient. On top of his chronic pain and mental illness, Mr Jakovceski was dealing with the twin challenges of a disabled child and conflict with his wife. This combination of issues no doubt hampered and discouraged him at various points, but I am not satisfied that they were so debilitating as to make him cognitively impaired for more than a year. In this respect I note the report of Dr Hong which suggests that Mr Jakovceski’s physical injuries and chronic pain made only a small contribution[12] to his psychological condition.
[12] Ibid, 18.
He asserted, in his statement of 1 May 2020, that the medications he was on produced side-effects including drowsiness, dizziness, headaches, fatigue, worsening insomnia, nightmares and hallucinations.[13] However, the available medical evidence falls short of suggesting that these side-effects were having a significant effect on his functioning, and certainly not on a continuing basis. Significantly, he was not taking Zoloft and Stilnox, the medications to which he attributes the side-effects, until March 2019, well into the relevant period. In this respect, the divergence between his assertions and the medical evidence leads the Tribunal to believe that he has somewhat exaggerated his level of dysfunction for the purposes of making this application.
[13] Exhibit A1, 3.
It would have been easier to believe that the cumulative effect of his medical conditions and other adversity in his life might have plausibly prevented him from pursuing his legal rights if the period in question was, say, three months. However, given the other evidence of his capacity to function, this claim of debilitation is much harder to accept over a period of more than a year.
His counsel asserted that the evidence showed that Mr Jakovceski lacked the motivation, the psychological energy and the wherewithal to grasp what he had to do and follow through on it. The Tribunal is not persuaded that he lacked either psychological energy or the capacity to understand what he needed to do; indeed, he told the Tribunal that in the relevant period generally he was able to process information and make decisions. He may have lacked the motivation to make decisions, but that factor does not provide a satisfactory explanation for the extensive delay here. In his tendered statement he said that his various conditions impacted [his] cognitive functioning. In his evidence, he did not assert that psychological, as opposed to cognitive, factors impaired him from making the necessary decisions. The Tribunal understands his evidence to be that he was prevented from making those decisions by reason of the barriers created by the side effects of medication, chronic pain, domestic issues and so on. Lacking the motivation to make those 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 explanation for the delay is credible in light of the medical and rehabilitation record. The unfavourable Comcare determination was no doubt a setback such that even a person of normal fortitude might be depressed or demoralised. The evidence suggests that the Applicant was susceptible to criticism and liable to react with anger and frustration. He laboured under a handicap not shared by most other members of the community. It is however difficult to accept that he was unable to exercise his legal rights. According to the reports, he was then undertaking responsible administrative tasks three days a week. He was certified fit to work three days a week. While his fragile mental state must be taken into account, the evidence does not point to such a degree of incapacity so as to deprive him of the capacity to deal with the procedures necessary 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.
The Tribunal finds that Mr Jakovceski has not provided an acceptable explanation for delay.
Prejudice to Comcare
Comcare contended that it would suffer prejudice because of a delay of 381 days, which it characterised as more than six times longer than the comparatively short 60-day time limit under the combined operation of s 65(4) of the Act and s 29(7) of the AAT Act.
Comcare submitted that the 60-day period reflects Parliament’s judgment that it may be presumed that the agency would suffer prejudice as and from the sixty 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. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. ... it must often happen that time will diminish the significance of a known act or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. ... The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
Comcare also contended that it is a statutory body corporate charged with providing a public service and is dependent on public moneys to fund its operations and compensation payments it might make. It would suffer prejudice, it submitted, if an extension of time were permitted because of the commitment of resources now required to attend to a claim which it had previously assumed was no longer extant.
These submissions carry some weight. Comcare in the present case has not pointed to any actual prejudice arising out of the 381-day delay, but the authorities make it clear that a degree of prejudice can be presumed the longer the delay. A delay of more than a year certainly promotes that presumption in this case. Additionally, Mr Jakovceski’s claimed workplace injury arose in 2010 or 2011, meaning that Comcare’s endeavours to amass evidence and prepare a case may be of a higher order than if the claim related to an injury in, say, 2018. That further reinforces the presumption of some degree of prejudice.
Merits of the substantive application
Comcare contended that Mr Jakovceski’s case was prima facie not strong.
It relied, for this submission, on a report prepared by Dr Iain Kelman (consultant orthopaedic surgeon) of 11 October 2018, where Dr Kelman opined that Mr Jakovceski had ceased to suffer the effects of a so-called aggravation of L5/S1 disc displacement with sciatic nerve irritation, sustained in November 2011.[15] Mr Jakovceski had originally sought to attribute that aggravation to the utility belt he wore as a Protective Service Officer with the AFP.
[15] Exhibit R1, 22.
Comcare also relied on the opinions of a pain medicine physician, Dr Anandhi Rangaswamy, and a neurosurgeon, Dr Justin Pik.[16] The effect of this evidence was said to be that Mr Jakovceski’s case involves subjectively reported symptoms in the absence of 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.
It was also contended that Mr Jakovceski would have provided expert evidence countering the opinion of these doctors well before now if he had truly intended to advance a meritorious claim.
Counsel for Mr Jakovceski responded that the medical reports referred to above were premised on him suffering pain with a neurological source, whereas there is evidence that Mr Jakovceski may also have spondylosis, a non-neurological phenomenon, but this has not been properly explored as an explanation for his pain. Counsel argued that the contention was open that pain from spondylosis contributed to his depression, and this in turn fed into further pain – what counsel called a feedback correlation. There is thus, it was contended, a prima facie case which met the Hunter Valley Developments threshold.
The Tribunal, having heard both parties’ submissions, is unable to reach a satisfactory view about the merits, or prospects of success, of Mr Jakovceski’s substantive claim. I note that he has yet to seek comprehensive medical reports on his condition, a step which he has, not unreasonably, put off until it was clear that the expense would not be wasted. However, to the extent that the Tribunal needs to be positively satisfied on the Hunter Valley Developments test that there is prima facie merit in his claim, the absence of such evidence does not assist him.
Nonetheless, the assertion by Mr Jakovceski’s counsel that there may be some alternative footing – such as spondylosis – for his claim which might be explored by securing further evidence allows me to find that, on balance, he should be given the benefit of the doubt and it be accepted that his case has prima facie merit.
“Duplication” of claim with chronic pain claim
Counsel for Mr Jakovceski made a further argument in favour of granting the extension of time. This argument was that the issue of his back pain is still before the Tribunal, irrespective of the outcome of this extension of time application, by virtue of the separate merits review application made by Mr Jakovceski in respect of chronic pain in July 2019. As such, counsel argued, the issues should travel together and it would be pointless for the Tribunal to deny the extension of time application if it will, in any event, be considering the question of whether he suffers a compensable condition in relation to his back.
Counsel for Comcare responded by pointing out that the chronic pain claim appears to be based on the same factual circumstances and the same evidence as the lumbar disc aggravation condition in respect of which Comcare asserts he no longer has an entitlement to compensation. On this basis Comcare submitted that the claim amounts to an abuse of process and could be struck out.
It does seem to the Tribunal that accepting Mr Jakovceski’s argument has the potential to open an avenue of abuse of the legislative provisions dealing with limitation of time. If the Tribunal finds that inordinate delay in bringing a claim can be overcome by filing an additional but closely related claim and relying on that as a platform on which to hoist the original claim back into contention because “the issue is already before the Tribunal”, an unfortunate precedent may have been set. This is not to suggest that such a motive has been employed by Mr Jakovceski in bringing his further chronic pain claim, but the potential for abuse 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 claimants may opportunistically (for example) seek to re-characterise a claim as one other than that in fact made in order to avoid the consequence of findings already made, or which may be made, that would exclude any entitlement to compensation (such as findings that an injury resulted from “reasonable administrative action taken in a reasonable manner”).
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.
I certify that the preceding 59 (fifty nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries, AO
........................................................................
Associate
Dated: 25 June 2020
Date(s) of hearing:
13 May 2020
Solicitors for Applicant:
Mr David Healey, David Healey Solicitors
Counsel for Applicant: Mr Allan Anforth
Solicitors for Respondent:
Counsel for Respondent:
Mr Thomas Miller, Minter Ellison Lawyers
Mr Peter Woulfe
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