Kennedy and Comcare (Compensation) - [2015] AATA 643

Kennedy and Comcare (Compensation) [2015] AATA 643 (27 August 2015)

Division

GENERAL DIVISION

File number

2015/2961

Ross Kennedy

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Dr James Popple, Senior Member

Date 27 August 2015

Date of written reasons 27 August 2015

Place Canberra
The application is dismissed under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975.

.............................[sgd]...........................................
James Popple, Senior Member
CATCHWORDS
COMPENSATION — Commonwealth employees — Applicant requested extension of time to request reconsideration by Respondent — application for review of refusal to grant extension of time — whether application has no reasonable prospect of success — Applicant made wilful and false representations — Applicant declined to proceed at hearing — hearing proceeded in absence of Applicant — application dismissed.
LEGISLATION
Administrative Appeals Tribunal Act 1975, ss 2A(c), 40(1)(b), 42B(1)(b)

Safety, Rehabilitation and Compensation Act 1988, ss 7(7), 62(3)(b)

CASES
Kennedy and Comcare [2015] AATA 334
REASONS FOR DECISION
Dr James Popple, Senior Member
27 August 2015

On 27 August 2015, I conducted a hearing in this matter. I gave my decision, and my reasons, orally at that hearing. These are the written reasons for my decision. They only differ in substance from the reasons given orally by the addition of this paragraph and [2]–[8] below, and of headings and notes. My reasons have been prepared having regard to the requirement, in s 2A(c) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), that the Tribunal pursue the objective of providing a mechanism of review that is proportionate to the importance and complexity of the matter.
Background
On 7 July 2014, Mr Ross Kennedy made a claim for worker’s compensation. He said that his injury was his “mental state”, and that he first sought treatment for it in 2011 or 2012. He said that his injury was due to “various unreasonable administrative actions undertaken by [his] supervisors and managers” when he was working in the then Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education.
On 11 December 2014, Comcare rejected his claim for what it termed “major depressive disorder, recurrent episode”. Under s 62(3)(b) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), Mr Kennedy had 30 days from when Comcare’s determination first came to his notice within which to request a reconsideration of that determination. On 23 December 2014, Mr Kennedy asked Comcare for an extension of time within which to make that request. On the same day, Comcare gave him an extension until 11 March 2015.[1]
[1] Comcare has the power to extend the deadline under s 62(3)(b) of the SRC Act.
On 22 February 2015, Mr Kennedy asked Comcare for a further 120 days within which to request reconsideration of Comcare’s determination. On 3 March, Comcare replied to Mr Kennedy asking him why he required a further extension of time.
On 18 May 2015, the Tribunal made a decision in two other matters in which Mr Kennedy was the applicant and Comcare the respondent.[2] I…

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 Kennedy and Comcare (Compensation)

Details

AGLC: Kennedy and Comcare (Compensation) [2015] AATA 643
Case: [2015] AATA 643
Decision Date: 27 August 2015

CaseChat Overview and Summary

The decision in Kennedy and Comcare involves Mr Kennedy, an applicant, and Comcare, the respondent. Mr Kennedy had previously been involved in two other matters with Comcare, which culminated in a decision by the Tribunal on 18 May 2015. After this decision, Mr Kennedy requested a reconsideration of a Comcare determination, but repeatedly sought extensions to provide the required explanations, ultimately leading to Comcare denying his request for further extension. Mr Kennedy then applied to the Tribunal for review of this decision under s 64 of the SRC Act. Comcare subsequently applied to have Mr Kennedy’s application dismissed under s 42B(1)(b) of the AAT Act, arguing that the application had no reasonable prospect of success. The Tribunal was required to decide whether Mr Kennedy’s application for review should be dismissed.

The court considered whether Mr Kennedy's application for review of Comcare's refusal to grant an extension had any reasonable prospect of success. Comcare argued that Mr Kennedy's repeated requests for extensions were unreasonable and that he had made wilful and false representations. Mr Kennedy did not proceed with the hearing despite multiple opportunities to do so, raising concerns about his commitment to the proceedings. The court noted Mr Kennedy's inconsistent behaviour and his failure to provide adequate reasons for his inability to participate in the hearing. The court examined the circumstances surrounding Mr Kennedy's requests for postponements and his objections to the composition of the Tribunal, finding that these actions undermined the seriousness of his application.

The court found that Mr Kennedy's application had no reasonable prospect of success due to his repeated requests for extensions, the lack of reasonable justification for these requests, and his failure to attend the hearing. The court concluded that Mr Kennedy's conduct demonstrated a lack of commitment to the proceedings and that his application was unlikely to succeed on the merits. Accordingly, the court dismissed Comcare's application to have Mr Kennedy's application for review dismissed. The court highlighted the importance of procedural fairness but also the necessity for applicants to engage genuinely with the Tribunal's processes.

The final orders of the court were that Comcare's application to dismiss Mr Kennedy's application for review was dismissed. The court emphasised the importance of timely and reasonable conduct in administrative law proceedings and the consequences of failing to engage properly with the Tribunal.

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

On 18 May 2015, the Tribunal made a decision in two other matters in which Mr Kennedy was the applicant and Comcare the respondent.[2] I will call this the earlier decision.[2] Kennedy and Comcare [2015] AATA 334 per Hack DP. On 19 May, Mr Kennedy advised Comcare that he “wish[ed] Comcare to proceed with a reconsideration” of its determination of 11 December 2014. On 22 May, Comcare asked Mr Kennedy to explain why he had not made his request for reconsideration by 11 March, and why he disagreed with the 11 December determination. On 27 May, after further correspondence, Comcare asked Mr Kennedy to provide those explanations by 1 June 2015. On 2 June, no explanation having been received, Comcare asked him to provide those explanations by 5 June. On 5 June he asked for an extension until 8 June. On 10 June, he asked for an extension until 15 July. On 15 June 2015, Comcare denied Mr Kennedy’s request for a further extension of time within which to request reconsideration of Comcare’s 11 December determination. On 17 June, Mr Kennedy applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.Should Mr Kennedy’s application be dismissed? On 31 July 2015, Comcare applied to have Mr Kennedy’s application for review dismissed under s 42B(1)(b) of the AAT Act, on the grounds that it has no reasonable prospect of success.The hearing of Comcare’s dismissal application On 31 July 2015, this matter was listed for hearing on 12 August, in lieu of a preliminary conference that had previously been listed for that time. I directed that Comcare provide written submissions in support of its application for dismissal by 5 August (which it did) and that Mr Kennedy provide any written submissions in response before the hearing. On 10 August, Mr Kennedy advised that he was unable to attend the hearing on 12 August. On 11 August, the hearing was vacated, and Mr Kennedy was given until 21 August to provide submissions. On 18 August, the matter was relisted for hearing today (27 August). Later on 18 August, Mr Kennedy advised that he would not attend the hearing if Mr Andrew Schofield (from Comcare) was also there. On 19 August, my associate advised Mr Kennedy that Comcare’s representation was a matter for Comcare. Later that day, Mr Kennedy advised that he would attend today’s hearing. On 20 August, Mr Kennedy sought another postponement of this hearing, for a further 60 days. He objected (again) to the presence of Mr Schofield at the hearing, and requested that the Tribunal be constituted by a specified member of the Tribunal, not by me. He provided no reasons why I should not constitute the Tribunal.Mr Kennedy’s failure to proceed On 25 August, Mr Kennedy provided reasons why, he says, he is currently unable to progress any matters that he currently has in the Tribunal: he is having problems with his car; he had no internet or telephone access on 24 August; he is distressed because of an unrelated employment matter; he is distressed by a work incident on 21 August; and he has work commitments from 21 to 27 August. On 26 August, Mr Kennedy advised that a further reason why he cannot progress this matter was that he had to attend an inspection of a rental property today.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL DIVISION
File number	2015/2961
Ross Kennedy
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Dr James Popple, Senior Member
Date	27 August 2015
Date of written reasons	27 August 2015
Place	Canberra