McKenzie and Comcare (Compensation)

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.