Jennifer Roberts and Comcare
[2015] AATA 139
•12 March 2015
[2015] AATA 139
Division GENERAL ADMINISTRATIVE DIVISION File Number
2015/0508
Re
Jennifer Roberts
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Professor R McCallum AO, Member
Date 12 March 2015 Place Sydney The Tribunal refuses the Applicant’s application for an extension of time to lodge an application for review pursuant to subsection-section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth).
.......................[sgd]................................................
Professor R McCallum AO, Member
CATCHWORDS
PRACTICE AND PROCEDURE – application for extension of time to lodge application for review – whether reasonable explanation for delay – whether fair and equitable to grant extension – merits of substantive application – extension of time refused
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 16
Administrative Appeals Tribunal Act 1975 (Cth) s 29(2), 29(7)
CASES
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Re Krivoshev and Department of Employment [2015] AATA 12
REASONS FOR DECISION
Professor R McCallum AO, Member
12 March 2015
BACKGROUND
The Applicant, Ms Jennifer Roberts, wrote to Comcare on 28 July 2014, requesting a reconsideration of the determinations dated 9 March 2011 and 14 November 2012. Briefly put, these determinations denied the Applicant entitlement to gym programs under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).
Comcare wrote to the Applicant on 6 November 2014, denying the Applicant's review requests because they were out of time. The letter read in part:
Section 62(3) of the SRC Act provides that a request for reconsideration must set out the reasons for the request and be provided to Comcare within 30 days of receipt of the determination (or any further period as Comcare allows).
Comcare's policy is that other than in exceptional circumstances, an extension of time to lodge a reconsideration will not be granted for a period longer than three months. Your request is over this timeframe.
The Applicant received the letter dated 6 November 2014, on or about 11 November 2014.
On 4 February 2015, the Applicant lodged an application with this Tribunal for review of Comcare’s decision to refuse her review her requests.
The time limit in which applicants may seek review with this Tribunal in compensation matters is 60 days: see sub-section 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), when read with sub-section 65(4) of the SCR Act. Thus as the Applicant received the decision on 11 November 2014, she had 60 days to lodge her application with this Tribunal. In other words, the Applicant had until 9 January 2015 to lodge her application. Her lodgement on 4 February 2015 was 26 days beyond the end of the 60 day time limit.
On 13 February 2015, the Applicant lodged an application for an extension of time for lodging an application for review with this Tribunal.
THE LEGISLATION
This Tribunal is empowered to grant applicants extensions of time pursuant to sub-section 29(7) of the AAT Act. It provides:
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.
THE CASE LAW
The leading authority on the principles to be observed when considering extension of time applications is Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344. In this decision, Wilcox J states, at 348, “it is the prima facie rule that proceedings commenced outside [the prescribed] period will not be entertained”. In Re Krivoshev and Department of Employment [2015] AATA 12, at [4], Senior Member Isenberg succinctly summarises the six principles set out by Wilcox J in Hunter Valley Developments as follows:
(a)that the application for an extension of time must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend the time;
(b)whether the Applicant has rested on his or her rights and whether the Respondent was entitled to regard the claim as being finalised;
(c)any prejudice to any other party;
(d)the mere absence of prejudice to other parties is not enough to justify the grant of an extension. However, any wider prejudice to the general public is a relevant factor;
(e)the merits of the substantive application; and
(f)considerations of fairness between the applicant and other persons in a similar position.
CONSIDERATION
There is no need for me to examine all six principles set out above. It is sufficient for the purposes of this application to discuss the two following principles.
Does the application for an extension of time show an acceptable explanation for the delay and is it fair and equitable in the circumstances to extend the time?
In the Applicant's written submission, the Applicant writes in part:
I personally thought I was within the period of 60 days submitting my application to the AAT, counting 60 days as 3 calendar months, November 2014 to February 2015.I realised after posting my submission that I has(sic) miscalculated, I was not within the stated 60 days.
I find this explanation to be implausible, and accordingly give it no weight.
In her evidence and in her written application, the Applicant cited the following personal matters which occupied her mind so that she was not able to turn her attention to making an application to this Tribunal. These matters are: the death of her father in law in early January 2015 after a period of illness; legal issues concerning her son; house insurance claim matters; and personal illness with medical certificates showing she was unfit for work on several days.
In my view, these personal matters are but the vicissitudes of life which affect us all to varying degrees.
The Applicant has previously appeared before this Tribunal in two proceedings which were both resolved by agreement with Comcare. In other words, she is not a new player. It takes very little time to fill in a form to apply to this Tribunal for review. Accordingly, I give these personal matters little weight.
I find that the Applicant has not demonstrated an acceptable explanation for the delay and that it is not fair and equitable in the circumstances to extend the time.
What are the merits of the Applicant's substantive application?
The Applicant’s submission in relation to her substantive application is that Comcare erred in holding that her review requests were out of time. On 28 July 2014, she had requested the review of two of Comcare’s determinations dated 9 March 2011 and 14 November 2012 respectively. The 9 March 2011 determination was made more than three years and four months prior to the request, while the 14 November 2012 determination was made more than one year and 7 months prior to the request.
In her letter of 28 July 2014, the Applicant did not provide her reasons for the delay in requesting that Comcare reconsider its determinations. Instead, the reasons in her request only identify proposed flaws in the primary decision.
Given the significant delays between the two determinations and the Applicant's request for review by Comcare, I find the prospects of the substantive application being successful to be remote.
DECISION
The Tribunal refuses the Applicant’s application for an extension of time to lodge an application for review pursuant to subsection-section 29(7) of the AAT Act.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member ...............................[sgd].........................................
Associate
Dated 12 March 2015
Date of hearing 24 February 2015 Applicant In person Solicitors for the Respondent Lehman Snell Lawyers
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