McKenzie and Comcare (Compensation)
[2016] AATA 1100
•19 December 2016
McKenzie and Comcare (Compensation) [2016] AATA 1100 (19 December 2016)
Division:GENERAL DIVISION
File Number(s): 2016/5597
Re:John McKenzie
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President Gary Humphries
Date:19 December 2016
Date of written reasons: 10 March 2017
Place:Canberra
The Tribunal refuses the application under s 29(7) of the Administrative Appeals Tribunal Act 1975 for an extension of time to lodge an application for review.
..........................[sgd]..............................................
Deputy President Gary Humphries
Catchwords
INTERLOCUTORY APPLICATION – extension of time – length of time to lodge application – where legal representatives failed to lodge application – delay on part of legal representatives affords applicant acceptable explanation – failure of legal representatives to lodge not determinative – application has weak prospects of success – weak prospects determinative factor – extension to lodge substantive application refused.
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449
Comcare v A'hearn [1993] FCA 498
Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109
Re Hunter Valley Developments Pty Limited v Minister of Home Affairs and Environment [1984] FCA 176REASONS FOR DECISION
Deputy President Gary Humphries
10 March 2016
The applicant, John McKenzie, is a teacher employed by ACT Education and Training since 1987. On 11 September 2008 he submitted a workers compensation claim for a condition described as severe upper gastrointestinal dyspeptic syndrome, with a date of injury of 21 January 2008. Exactly one year after the date of injury Comcare, on behalf of his employer, accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for a condition it characterised as major depressive disorder, single episode.
On the 24 July 2015 Comcare made a determination that Mr McKenzie had no present entitlement to compensation under ss 16 and 19 of the SRC Act. Mr McKenzie requested reconsideration of that determination, arguing that he had experienced constant bullying over the past three years at his employment which had impacted on his mental and physical health. However, on 17 December 2015, Comcare affirmed the determination of 24 July 2015.
On 19 October 2016 Mr McKenzie’s solicitors lodged an application for an extension of time to the Tribunal, in order to lodge a late application for review of the decision of 17 December 2015.
Section 29(2) of the Administrative Appeals Tribunal Act 1975 provides that the time for making an application for review in this case ends on the twenty-eighth day after... the day on which a document setting out the terms of the decision [was] given to the applicant. Mr McKenzie received the reconsideration decision of 17 December 2015 a day or so after it was made, and accordingly ought to have lodged his application for review by the Tribunal by about 17 February 2016. By lodging it on 19 October 2016 he was approximately 245 days late.
However, s 29(7) 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.
On 22 November 2016 the parties appeared before the Tribunal to submit arguments as to whether the extension of time sought should be granted. Written submissions on behalf of Mr McKenzie were handed up on 22 November 2016 and both parties lodged further submissions on 2 December 2016. On 19 December 2016 the Tribunal refused the grant of an extension of time. What follows below are the reasons for that decision.
Relevant facts
The original injury for which Comcare accepted liability occurred while Mr McKenzie was a teacher at Bonython Primary School in the ACT in 2008. He later worked at Forrest Primary School, where he claimed to have experienced sustained bullying by the principal, and later again at Chapman Primary School. The review officer making the reviewable decision on 17 December 2015 considered the medical evidence since the date of injury. This, as summarised by the review officer, consisted principally of reports from:
·Dr Graham George (consultant psychiatrist) dated November 2008, offering the opinion that Mr McKenzie suffered major depression and a generalised anxiety disorder which was employment related;
·Dr Michael Hong (consultant psychiatrist) dated March 2014 diagnosing generalised anxiety disorder with secondary depressive symptoms. He considered the condition was constitutional and related to Mr McKenzie’s anxious personality style. He opined that if he did not fully recover once away from Forrest Primary School then the personality factors should be considered the most significant cause of ongoing symptoms;
·Dr Serafim, his treating GP, dated March 2015, diagnosing adjustment disorder and post-traumatic stress syndrome. He made reference in that report to abuse suffered from a new school principal on 5 March 2015; and
·Dr Doron Samuell (consultant psychiatrist) dated May 2015 who found that Mr McKenzie did not suffer from a psychiatric condition and did not require further treatment.
The review officer preferred the opinion of Dr Samuell, that Mr McKenzie suffered no present psychiatric condition, and noted that Mr McKenzie had not claimed any psychological pharmaceuticals recently and that his last psychological consultation (other than with his GP) was in July 2013.
The reasons for the delay in lodging the application for review are principally contained in an affidavit of the applicant’s solicitor filed on 22 November 2016. There he deposes that Mr McKenzie had approached his firm in late January 2016, but an appointment was delayed because of a fire alarm. An initial consultation between a principal of the firm and Mr McKenzie occurred in early February, and the latter provided copies of relevant documents to the firm later that month.
Mr McKenzie formally retained the firm to act for him on 3 March 2016, and immediately thereafter various enquiries were set in train dealing with aspects of the evidence supporting the claim. In particular Dr Serafim was pursued regarding what was thought to be an inaccuracy in the information he had supplied to Comcare – a pursuit which lasted several months.
A decision was made to retain counsel in early September, and a first meeting with counsel occurred on 18 October 2016. Counsel advised the solicitor to lodge an extension of time application immediately, and this occurred the following day.
Principles governing an extension of time
The discretion given to the Tribunal in s 29 is very wide. The Tribunal has to be satisfied that it is reasonable in all the circumstances to grant the extension. However, a number of decisions provide guidance as to when this broad discretion should be exercised.
In Re Hunter Valley Developments Pty Limited v Minister of Home Affairs and Environment [1984] FCA 176 Wilcox J articulated the now often-quoted criteria to be considered in an application for an extension of time to review a decision:
(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.
These principles, however, have undergone some modification following the Federal Court decision in Comcare v A'hearn[1993] FCA 498. In that case, the Full 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 Full 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 Full 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:
1There 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).
2It 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).
3Action 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).
4Any 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).
5The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).
6The 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).
7Considerations 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] these considerations were condensed as:
·the explanation of the delay;
·any prejudice to the respondent; and
·whether the applicant has an arguable case.
Consideration
Reasons for the delay in lodging
As was made clear in A’Hearn, it is not essential that an applicant for an extension of time advance an acceptable explanation for the delay. In this case there is, in fact, an acceptable explanation available to the Tribunal.
Quite evidently the preoccupation for Mr McKenzie’s solicitors during much of 2016 in gathering evidence for an appeal was misdirected, given that no appeal was then before the Tribunal. Their first step on receiving instructions should, of course, have been to lodge an application for review with the Tribunal, which they could comfortably have done, within the statutory timeframe, following their first consultation with Mr McKenzie. No excuses should be offered for the mishandling of Mr McKenzie’s appeal by the solicitors, but equally no blame can be sheeted home to Mr McKenzie in choosing to rely on his solicitors. A’Hearn and the authorities which follow it make it abundantly clear that delay, however inexcusable, on the part of legal advisers can afford an acceptable explanation for an applicant’s failure to take advantage of appeal rights within the prescribed time limits. In the present circumstances I consider Mr McKenzie has satisfactorily explained the reason for the delay in filing his application.
The merits of the substantive application
The merits of the substantive application are a factor which I must consider. It is well established that an application for review lodged even a short period after the expiry of the statutory timeframe still faces the prospect of being refused if it offers only weak prospects of success.
My consideration of those merits is based on the reviewable decision of 17 December 2015 and the submissions of both parties before the Tribunal. It is likely that, if I granted the extension of time and the substantive application went to a full hearing, further medical and other evidence would be available for the Tribunal’s consideration; however, my assessment of the merits must be based on what is before me presently.
The decision maker had before her, it seems, four medical reports relating to Mr McKenzie. Of these, it would seem little weight was attached to the 2008 report of Dr George, given that it was some seven years old at the time of the decision and presumably of little relevance to the then question of whether Mr McKenzie continues to suffer from the condition earlier diagnosed. Of the remaining three reports, two reports were from consultant psychiatrists and neither offered much support for Mr McKenzie’s claim. Only the report of his GP, Dr Serafim, provided that. Without having seen the reports themselves, the basis on which the decision maker might have preferred the evidence of two specialists over that of a GP can be readily appreciated.
In the submissions made on behalf of Mr McKenzie, several arguments relating to the substantive merits of his application are advanced. Attention is drawn first to an apparent error in the report of Dr Serafim; he records that Mr McKenzie suffered abuse from a new school principal on 5 March 2015 when, it seems, the correct date should have been one year earlier. This error, it was submitted, could have seriously undermined the opinion of Dr Serafim. It is unclear how identifying an error in the evidence on which Mr McKenzie chiefly relies can assist his case; in any event, the argument was not pressed in his later submissions, and the Tribunal assumes it was abandoned. The same appears to be true of an argument based on asserted inconsistency between the reviewable decision and the report of Dr Samuell.
Mr McKenzie’s later submissions did however press the argument that there was an internal inconsistency in the report of Dr Samuell, which suggests an error. They quote Dr Samuell’s conclusions that Mr McKenzie:
…does not suffer from a psychiatric disorder. He is mentally well. There is no current evidence of psychiatric illness… he does not require further psychiatric treatment…
Against this is set Dr Samuel’s observation that Mr McKenzie is consuming antidepressants at a reasonable dose. It is suggested that Mr McKenzie could not reasonably be consuming antidepressant medication if he is, in fact, mentally well.
This argument is not persuasive. It seems obvious that a person who has a history of a particular type of illness might take medication to prevent a recurrence of that illness or of its symptoms. Alternatively, the doctor may have thought that taking antidepressants was reasonable treatment of a psychiatric dysfunction which fell short of a diagnosable psychiatric illness. Yet another possibility is that he regarded the medication as a placebo, taken by Mr McKenzie more for comfort than of necessity.
The submissions also draw attention to Dr Serafim continuing to issue medical certificates to Mr McKenzie, certifying him unfit to perform normal duties in the period February 2015 to July 2016. This establishes, in the Tribunal’s view, no more than that Dr Serafim’s opinion is unchanged, not that it is to be preferred to that of the other doctors. It is submitted that Mr McKenzie’s injuries become more pronounced over the year and half since Comcare issued its determination; there is nothing in the certificates however that support this contention. It is true that one medical certificate was issued independently by a psychiatrist, Dr Westcombe, in November 2016, but there is no evidence Dr Westcombe was involved in Mr McKenzie’s ongoing treatment.
In summary, the evidence referred to by Mr McKenzie offers glimmers of hope that the reviewable decision might be set aside upon a full hearing in the Tribunal, but the overall state of the medical evidence as presently understood places this hope at no more than a faint possibility. It certainly does not suggest that his case has some prospect of success. There is little which has been put before the Tribunal which might satisfy it that his claim has greater merit than was assessed to be the case by the earlier decision maker. Given that part of the reason for the delay in lodging the application was the need to explore the merits of an appeal, those merits do not seem to have been greatly advanced by the extra time taken.
Against this background must be weighed other factors which count against granting the extension of time. A delay of more than eight months is relatively long; it is to be expected that Comcare’s defence of the claim would be made more complex by this delay, even without putting it to proof of that fact. Comcare submitted – and I accept – that as an insurer and a public institution it has:
…a significant interest in knowing that it has no liabilities beyond a definite period, and … it will be inherently prejudiced by the inability to arrange its affairs and utilise [its] resources on the basis that claims can no longer be made against it.
In this respect I note that Comcare determines employer premiums at the beginning of each financial year with reference to claims expenditure incurred in the previous financial year. As Mr McKenzie’s application was (presumed to have been) finalised in the previous financial year, any potential liability arising from the revival of his claim will not have been captured in the most recent premium calculation. The Tribunal notes that Mr McKenzie’s solicitors did write to Comcare on 6 April 2016 seeking access to his file; however more than six further months passed before the application was lodged, consolidating an impression that Mr McKenzie was resting on his rights.
Conclusion
A delay of eight months in launching an appeal is substantial, notwithstanding that Mr McKenzie has advanced adequate reasons for that delay. The effluxion of so much time has added weight to other factors militating against an extension of time, particularly potential prejudice to the respondent. However, most critical in weighing the various factors are what appear to be very limited prospects of success for Mr McKenzie’s substantive claim.
Against these considerations the application under s 29(7) of the Administrative Appeals Tribunal Act 1975 for an extension of time to lodge the substantive application is refused.
I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries
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Associate
Dated: 10 March 2017
Date(s) of hearing: 22 November 2016 Advocate for the Applicant: Sebastian Marquez Solicitors for the Applicant: Canberra Legal Group Advocate for the Respondent: Christopher Bilboe
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