McMahon and Comcare

[2005] AATA 828

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 828

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2005/172

GENERAL ADMINSTRATIVE DIVISION		)
Re		PAUL McMAHON

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr J.W. Constance, Senior Member

Date26 August 2005

PlaceCanberra

Decision The application for an extension of time in which Mr McMahon may make an application for a review of the decision of Comcare of 19 October 2001 is refused.

..............................................

CATCHWORDS

COMPENSATION – application for extension of time to lodge Tribunal proceedings – application to Tribunal more than 3 years after statutory time limit – Applicant has reasonable excuse for delay – Respondent prejudiced by delay – Respondent lost opportunities to have Applicant examined by specialists of Respondent’s choice, to have the Applicant examined between April 2003 and the present and to have attempted rehabilitating Applicant – prejudice greater as claimed injury is psychiatric – application for extension of time refused

Administrative Appeals Tribunal Act 1975 (Cth) – s 29(7)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Duong v Australian Postal Corporation [2005] FCA 991

Comcare v A’Hearn (1993) 45 FCR 441

Maric v Comcare (1993) 40 FCR 244

REASONS FOR DECISION

26 August 2005 Mr J.W. Constance, Senior Member       

1.      On 22 June 2005 Mr McMahon applied to the Tribunal for an extension of the time in which to make an application for a review of a decision of Comcare made 19 October 2001.

2.      Although I am satisfied that Mr McMahon has shown an acceptable reason for the delay I am of the view that to grant the extension would be to unfairly prejudice Comcare and for the reasons set out this application will be refused.

STATUTORY FRAMEWORK

3.      The Safety, Rehabilitation and Compensation Act 1988 (Cth) provides for an application to review a decision of Comcare to be made to the Tribunal within 60 days of the decision being furnished to the applicant. The time for making other review applications is normally 28 days.

4. Sub-section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) permits the Tribunal to extend the time for making a review application. The Act does not set out grounds for granting or refusing such an application.

FACTS

5.      In 2000 and 2001 (and for some time previously) Mr McMahon was employed by the ACT Department of Justice and Community Safety.  On 2 May 2001 he lodged with his employer a Comcare Claim for Rehabilitation and Compensation form in which he alleged that he had been injured at work on 18 July 2000.  He described the diagnosis of the injury as “excessive stress and anxiety and raised blood pressure and blood glucose levels.”[1]  Comcare classified the claim as “major depressive disorder, single episode sustained on 29/3/01.”[2]

[1] EOT document 4.

[2] EOT document 6.

6.      On 27 June 2001 Comcare determined that it was not liable to pay compensation in respect of the claimed injury.  Sometime between then and 5 September 2001 Mr McMahon instructed Messrs Tetlow Jansen and Doyle, Barristers and Solicitors, to act for him in relation to the refusal of his claim.  Mr McMahon consulted Mr O’Neill of this firm.

7.      Messrs Tetlow Jansen and Doyle requested a reconsideration.  By a decision of 19 October 2001 Comcare affirmed the original decision.  The decision of 19 October 2001 was reviewable by this Tribunal.

8.      Mr McMahon commenced a graduated return to work sometime prior to 6 November 2002.  On 6 November 2002 the solicitors sent a fax to Comcare referring to (but not enclosing) a number of medical reports.  This letter included the following:

“You are asked to consider the further medical evidence relating to the cause and nature of Mr McMahon’s medical condition and to accept this correspondence as a claim by Mr McMahon arising from these symptoms sustained in the course of his employment in approximately August 2000.  Whilst we remain hopeful that the rehabilitative arrangements know [sic] in place for Mr McMahon may create options in response to his concerns we look forward to the opportunity of further dialogue with you to obviate the necessity for further proceedings.”[3]

[3] EOT document 14.

This was the first correspondence received by Comcare from Mr McMahon or his solicitors since the date of the reviewable decision.  By letter of 25 November 2002 Comcare requested copies of the reports.  I have no evidence before me to suggest that these reports were provided as requested or that Comcare had any reason to believe that Mr McMahon was proceeding further with his claim until it received notice of this application in June 2005, almost 3 years later.

9.      In October 2001 Mr McMahon had received a copy of the reconsideration from his solicitors with a request for instructions as to the further conduct of his claim.[4]  In his evidence Mr McMahon was unclear as to the precise instructions he had given to his solicitors, but I am satisfied that he did instruct them to act for him to protect his interests including, if appropriate, to make an application to this Tribunal for a review of the decision.  I take into account a letter from Tetlow Jansen and Doyle of 20 February 2003 which included the following advice:

“The reconsideration with Comcare is currently in abeyance pending the receipt of further medical reports as to the status of your condition………………..We are anxious to pursue the matter in the Administrative Appeals Tribunal and certainly upon receipt of the updated medical reports we anticipate the resolution of the matter in the near future.”[5]

[4] Exhibit A3.

[5] Exhibit A2.

This letter was in response to a request from Mr McMahon for advice as to what was happening in regard to the reconsideration and whether his case was to proceed to this Tribunal.[6]  In view of the letter from his solicitors it was reasonable for Mr McMahon to assume that his right to seek a review was still being protected.

[6] Exhibit A1.

10.     On 22 June 2005 Mr McMahon consulted another solicitor, Mr Lander, and learned that he was substantially out of time in seeking to have Comcare’s decision reviewed by this Tribunal.  On behalf of Mr McMahon, on 22 June 2005 Mr Lander applied for an extension of time to seek a review, approximately 3 years and 7 months after the time for making a review application had expired.

11.     I am satisfied that the only reason Mr McMahon did not apply for a review within the time set out in the Act is that his solicitors at the time did not carry out his instructions.

REASONING

12.     The principles applicable to an application of this kind were set out by Wilcox J. in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. These principles were affirmed as recently as July 2005 by the Federal Court in Duong v Australian Postal Corporation [2005] FCA 991.

13.     Applying these principles, prima facie the application for review should have been made by 22 December 2001 and if the time was extended to the date the application was lodged in the Tribunal it would be to a date 3 ½ years later.  This is a very substantial delay.

14.     I am satisfied that Mr McMahon has established an acceptable explanation for the delay in that he acted reasonably in relying on his solicitors to take whatever action was necessary to protect his right to seek a review in this Tribunal.  The letter from the solicitors in February 2003[7] would lead any reasonable person without particular knowledge of the law to believe that the right to review was still available. The Full Court of the Federal Court has held that delay on the part of solicitors can amount to an acceptable explanation for delay in making a review application: Comcare v A’Hearn (1993) 45 FCR 441.

[7] Exhibit A2.

15.     However, being satisfied that there is an acceptable explanation for the delay, it is necessary to consider whether there would be any prejudice to Comcare should the time be extended.  Comcare did not call any evidence to show such prejudice but this does not exclude me from finding that Comcare would be prejudiced in these circumstances: Maric v Comcare (1993) 40 FCR 244, Duong v Australian Postal Corporation (supra).

16.     In Maric v Comcare (supra) at page 250 O’Loughlin J. said:

“The Tribunal is a specialist tribunal; it regularly deals with matters (such as these) involving public authorities and Government Departments.  The Tribunal and its members are entitled to make use of the knowledge that is thereby acquired and in appropriate circumstances that knowledge will entitle the Tribunal more readily to infer prejudice.”

17.     Counsel for Mr McMahon has argued that Comcare has available various medical reports provided to Mr McMahon’s employer.  Copies of these reports have been filed in the Tribunal and I have considered them.  They are detailed reports and are from appropriately qualified specialists and certainly the availability of such material is a relevant factor.  However the latest of these reports was a report from a consultant psychiatrist of 3 April 2003.

18.     Even taking into consideration the material that is available I am satisfied that to allow the extension of time sought would be to unfairly prejudice Comcare.  By reason of the delay Comcare has lost the opportunity to have Mr McMahon examined by specialists of its choice and has lost the opportunity for any assessment of Mr McMahon between April 2003 and the present. In addition it has lost the opportunity to work with Mr McMahon in an effort to assist him in his rehabilitation.  The prejudice is made greater in this case as the injury alleged is of a psychiatric nature.

19.     For completeness I should indicate that on the information available to me I am satisfied of the merits of the substantial application to the extent that I make no finding adverse to Mr McMahon’s application in that regard.

DECISION

20.     For the reasons stated the application for an extension of time in which Mr McMahon may make an application for a review of the decision of Comcare of 19 October 2001 is refused.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W. Constance, Senior Member

Signed:         .....................................................................................
  Associate

Date/s of Hearing  29 July 2005
Date of Decision  26 August 2005
Solicitor for the Applicant          Lander & Co
Solicitor for the Respondent     Sparke Helmore