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Lower and Comcare

Lower and Comcare

Case [2005] AATA 551 9 June 2005

Statutory Interpretation

Administrative Law

Compensation & Benefits Law

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CATCHWORDS – WORKERS’ COMPENSATION – extension of time – application for extension ten years after reviewable decision – whether Comcare unreasonably prejudiced by delay – merits of application – whether an extension is in the interests of justice – extension granted.

Administrative Appeals Tribunal Act 1975 ss. 29 and 42A
Administrative Decisions (Judicial Review) Act 1977 s. 11
Commonwealth Employees’ Compensation Act 1930 s. 9
Compensation (Commonwealth Government Employees) Act 1971 ss. 5, 27 and 29
Safety, Rehabilitation and Compensation Act 1988 ss. 4, 14, 19, 24 and 124

Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Behan v Australian Telecommunications Corporation (1990)26 FCR 337; 22 ALD 545
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Chalk v Commissioner for Superannuation (1994) 50 FCR 150; 33 ALD 420
Chumbairux v Minister for Immigration and Ethnic Affairs (1986) 74 ALR 480
Comcare v A’Hearn (1993) 119 ALR 85
Commissioner of Taxation v Brown [1999] ATC 4852
Hoare v Deputy Commissioner of Taxation (Vic) (1987) 14 ALD 476
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344; 58 ALR 305
Lower v Comcare (2002) 124 FCR 498; 36 AAR 220
Mulheron v Australian Telecommunications Corporation (1991) 23 ALD 309
Re Bell and Australian Telecommunications Corporation (1983) 5 ALN N186
Re Bogaards and Commonwealth of Australia (1987) 13 ALD 578
Re Bonavia and Secretary, Department of Social Security (1985) 9 ALD 97
Re Lower and Comcare (2003) 74 ALD 547
Re Mulheron and Australian Telecommunications Commission (1991) 23 ALD 309
Re Nicholson and Secretary, Department of Social Security (1990) 21 ALD 537; 12 AAR 298
Re Pepper-Clayton and Australian Telecommunications (1985) 7 ALD 508
Rodriguez v Telstra Corporation Limited [1999] FCA 1400
Windshuttle v Deputy Commissioner of Taxation (1993) 46 FCR 235; 93 ATC 4992; 27 ATR 88
Zizza v Commissioner of Taxation [1999] FCA 37

DECISION AND REASONS FOR DECISION [2005] AATA 551

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          S2003/224
GENERAL ADMINISTRATIVE DIVISION     )

Re KEVIN BERTRAM LOWER

Applicant

AndCOMCARE
Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  9 June 2005
Place:  Adelaide

Decision:The Tribunal has decided to extend the time within which Mr Lower may lodge an application to review the decision of the respondent dated 27 September 1991 to 10 June 2003.
S A FORGIE
Deputy President

REASONS FOR DECISION

On 27 September 1991, Comcare refused Mr Kevin Bertram Lower’s claim for compensation. On 17 August 1992, Mr Lower withdrew the application he had lodged in the Tribunal to review that decision. Over ten years later, on 10 June 2003, he sought an extension of time to lodge a further application to review Comcare’s reviewable decision. I have decided that he should be given that extension so that his application lodged on 10 June 2003 can be heard and matters relating to Mr Lower’s claim for compensation finally resolved.

THE ISSUE

I must decide whether I should extend the time within which Mr…

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 Lower and Comcare

Details

AGLC: Lower and Comcare [2005] AATA 551
Case: [2005] AATA 551
Decision Date: 9 June 2005

CaseChat Overview and Summary

The case is between Kevin Bertram Lower and Comcare, where Lower sought an extension of time to lodge an application to review Comcare's decision dated 27 September 1991. The decision was to refuse Lower's claim for compensation related to his illness. Lower withdrew his initial application for review on 17 August 1992 and sought an extension of time to lodge a new application on 10 June 2003. The Tribunal granted the extension. The legal issues involved were whether the Tribunal should extend the time within which Lower could lodge an application for review and, if so, whether Comcare would be unreasonably prejudiced by the delay and whether an extension was in the interests of justice. The Tribunal considered the principles set out in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment and applied them to the case. The Tribunal found that Lower had periods during which he had the capacity to lodge an application for extension of time and that Comcare would not be unreasonably prejudiced by the delay. The merits of the case were also considered, and it was found that an extension was in the interests of justice. The Tribunal granted the extension of time to 10 June 2003.

Orders