McKenzie and Comcare (Compensation)

Case [2016] AATA 1100

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 176

REASONS FOR DECISION

Deputy President Gary Humphries

10 March 2016

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. However, s 29(7) provides:

    The Tribunal may, upon application in writing by a person, extend…

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AGLC
McKenzie and Comcare (Compensation) [2016] AATA 1100
Case
[2016] AATA 1100
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an interlocutory application by Mr. McKenzie seeking an extension of time to lodge a substantive application for review against a decision made by Comcare. The dispute concerned Mr. McKenzie's claim for compensation arising from an injury sustained in 2008, with subsequent alleged bullying experienced at different schools. The Tribunal, presided over by Deputy President Gary Humphries, heard arguments and received written submissions from both parties before refusing the extension of time.

The primary legal issues before the Tribunal were whether to grant an extension of time for Mr. McKenzie to lodge his substantive application, and in determining this, what weight to give to the explanation for the delay, any prejudice to Comcare, and the merits of Mr. McKenzie's underlying claim. The Tribunal was required to assess whether the delay, which was substantial, was adequately explained and whether the prospects of success for the substantive application were sufficient to justify granting the extension.

The Tribunal acknowledged that while Mr. McKenzie had provided an acceptable explanation for the delay, primarily due to the actions and misdirection of his legal representatives, this was not determinative. The Tribunal applied the principles established in cases such as *Bahonko v Nurses Board of Victoria (No 4)* and *A’Hearn*, which require consideration of the explanation for delay, prejudice to the respondent, and the arguable case. Crucially, the Tribunal found that Mr. McKenzie's substantive application had weak prospects of success, based on the available medical evidence which favoured the opinion that he did not suffer from a present psychiatric condition. The potential prejudice to Comcare, particularly in relation to premium calculations and the management of its affairs, was also considered.

Ultimately, the Tribunal concluded that despite the acceptable explanation for the delay and the potential for further evidence to emerge, the weak prospects of success for the substantive claim were the most critical factor. Weighing this against the substantial delay and potential prejudice to Comcare, the Tribunal refused Mr. McKenzie's application for an extension of time to lodge his substantive application.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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. ConsiderationReasons 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.