Mitchell and Comcare (Compensation)
[2018] AATA 1293
•15 May 2018
Mitchell and Comcare (Compensation) [2018] AATA 1293 (15 May 2018)
Division:General Division
File Number(s): 2018/1470
Re:Scott Mitchell
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Mr P W Taylor SC, Senior Member
Date:15 May 2018
Place:Sydney
The decision under review is affirmed.
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Mr P W Taylor SC, Senior Member
CATCHWORDS
EXTENSION OF TIME – compensation claim – workplace injury – physical injury – simultaneous psychological compensation claim – extension of time principles – lack of substantive response – delay in requesting reconsideration – prejudice to the respondent – general prejudice and fairness
LEGISLATION
Safety, Rehabilitation and Compensation Act 1998 (Cth) ss 62 and 72
Administrative Appeals Tribunal Act s 29
CASES
Beecher v Telstra Corporation [1994] AATA 6
Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441
Comcare v Willems (1996) 70 FCR 244; 43 ALD 253
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
O’Gorman v Comcare [2017] AATA 2192
Re Johnson and Commonwealth [1990] AATA 1
Re Jones and Svitzer Offshore Pty Ltd [2014] AATA 902Rothsay and Secretary, Dept of Education, Employment and Workplace Relations (2011) 121 ALD 184; (2011) 54 AAR 562; [2011] AATA 280
REASONS FOR DECISION
Mr P W Taylor SC, Senior Member
15 May 2018
In April 2017 Mr Mitchell lodged an application to review a Comcare decision of 21 March 2017. That decision ended his previously recognised compensation and expense entitlements for psychological injury related to his employment, prior to July 2013, with the Australian Taxation Office. Those review proceedings have been listed for hearing in June this year.
Mr Mitchell’s September 2013 compensation claim, and its January 2014 acceptance, provide the background to Comcare’s 21 March 2017 decision. The September 2013 claim identified two injury conditions – (i) “exacerbation of physical disability” secondary to inadequate ergonomic office accommodation, and (ii) “depression and anxiety” secondary to management practices after July 2012. The claim disclosed that Mr Mitchell had previously suffered “pain in lower & upper back & neck” in 2002, 2007/2008 and again in 2012. None of those occurrences had been the subject of a previous employment related compensation claim, but the September claim was accepted on the basis that the relevant date of his injury was in February 2008 (ie., the date of the MRI study to which I refer in paragraph 10 below.)
Part of Comcare’s 21 March 2017 decision reasons referred to the physical injury aspect of Mr Mitchell’s September 2013 claim. The reasons noted that it had been put forward, and accepted, as an aggravation of lumbar and neck sprains. The reasons then alluded to Comcare’s 1 August 2014 decision, which had terminated Mr Mitchell’s medical expenses and compensation entitlements relating to that aggravation, on the basis that it had resolved and Mr Mitchell had returned to his pre-injury condition. The 21 March 2017 reasons also stated that Mr Mitchell had never sought to appeal the 1 August 2014 decision, nor request its reconsideration.
BELATED RECONSIDERATION / EXTENSION OF TIME REQUEST
On 2 March 2018 Mr Mitchell’s solicitors did write to Comcare requesting a reconsideration of the 1 August 2014 decision. That request was well outside the ordinary 30 day reconsideration request period. The request asserted that Comcare had failed to provide reasons for the August 2014 decision. In so doing it erroneously ignored the decision’s reference to the medical evidence it had previously drawn to Mr Mitchell’s attention, and the decision’s statement of the conclusion Comcare had drawn from that evidence. Perhaps as a consequence of that deficiency, the 2 March 2018 letter did not advance any substantive reason for the reconsideration request.
Given its belated timing, Comcare treated the 2 March 2018 letter as first requiring it to consider whether to allow an extended period for the submission of a reconsideration request:- see Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”) s 62(3)(b) & Comcare v Willems (1996) 70 FCR 244; 43 ALD 253 at 259. In a short statement of reasons dated 9 March 2018, Comcare rejected that invitation, without embarking on a reconsideration of the August 2014 decision. That rejection is the decision Mr Mitchell seeks to have reviewed in the present proceedings. It was common ground that it was a reviewable decision:- see Beecher v Telstra Corporation [1994] AATA 6 & Comcare v Willems (1996) 70 FCR 244; 43 ALD 253 at 260.
Mr Mitchell acknowledged that when he first received notice of the 1 August 2014 decision he likely also received information about the possibility of requesting reconsideration of the decision. That information was in a standard form of notice attached to the decision letter, and Mr Mitchell conceded he would have read it. The notice indicated that a reconsideration request should (i) be in writing, (ii) provide reasons for the request, (iii) be accompanied by any new information or medical evidence and, (iv) be made within 30 days. In relation to the latter, the notice said, in plain terms, “if you are unable to make your request within 30 days you can apply for an extension”.
BASIS OF THE EXTENSION OF TIME REQUEST
Notwithstanding the approximately three and half years that had elapsed since Comcare’s 1 August 2014 decision, no additional information accompanied the 2 March 2018 reconsideration request letter. But, in support of the present review application Mr Mitchell provided a recently prepared three and half page statement. In that statement Mr Mitchell:
(a)acknowledged that Comcare put him on notice, by letter dated 2 July 2014, of the likely termination of his compensation entitlements relating to the “aggravation” injury to his back and neck, and the reasons for that likelihood
(b)acknowledged that the 2 July 2014 letter gave him an opportunity to submit further medical evidence to support his physical injury compensation claim
(c)asserted that he had not pursued the physical injury claim after 1 August 2014 because
(i)prior to the decision, a Comcare officer had explained to him that, because his psychological injury claim had been accepted, the continued acceptance of his physical injury claim would not provide him with any significant practical advantage (at least while his psychological condition persisted)
(ii)he had not been well enough psychologically to pursue the physical injury claim
(iii)until his Counsel advised him to the contrary (just before his 2 March 2018 application) he did not know it was possible to obtain an extension of time for requesting reconsideration of Comcare’s decision.
ETENSION OF TIME PRINCIPLES
The parties written and oral submissions acknowledged the breadth of the extension of time discretion. They implicitly agreed on the relevant accuracy of a statement of principles set out in the decision of the Tribunal in O’Gorman v Comcare [2017] AATA 2192. There, in relation to an analogous discretion in s 29(7) of the Administrative Appeals Tribunal Act 1975, the Tribunal said.
[12] The principles to be applied in determining an application for an extension of time have been set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [348] and [349] as follows:
§an applicant must show an 'acceptable explanation of the delay' and that it is 'fair and equitable in the circumstances' to extend time;
§a distinction is to be made between an applicant who has 'rested on his rights' and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;
§any prejudice to the respondent caused by the delay;
§whether the respondent or the general public would suffer any prejudice as a result of the extension;
§the merits of the substantial application;
§considerations of fairness as between the applicant and other persons in a similar position.
[13] These principles are not to be applied mechanically. For example, an 'acceptable explanation for the delay' is not an essential precondition to the exercise of the discretion, although it is to be expected that such an explanation will normally be given: Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441.
[14] All of the circumstances of the case must be considered; the overriding consideration being whether it is 'reasonable in all the circumstances' to grant the extension.
The considerations identified in O’Gorman apply most directly to the exercise of the particular statutory discretion with which that decision was concerned. However, at least in relation to their emphasis on the length and reasons for any delay, the consequences of the delay, and the apparent merits of the underlying claim, they are consistent with the approach taken in other cases concerned with the discretion to extend time under the SRC Act:- see Comcare v Willems (1996) 70 FCR 244; 43 ALD 253 at 259; Re Jones and Svitzer Offshore Pty Ltd [2014] AATA 902. No doubt another relevant consideration is Comcare’s obligation in making determinations, to be guided by “equity, good conscience and the substantial merits of the case”: see SRC Act s 62(3)(b).
LACK OF SUBSTANTIVE RESPONSE TO COMCARE’S 1 AUGUST 2014 DECISION.
Mr Mitchell’s March 2018 statement makes plain that he had a long history of back and neck injury. That history included (i) 1986 surgery, as a result of traumatic injury affecting the C1 / C2 level of his cervical spine, and resultant restricted movement in his upper back and neck, (ii) an MRI study in February 2008 that had revealed a degenerative disc condition and a small disc protrusion at L5/S1 and, (iii) consequential May 2008 lumbar fusion surgery. That latter surgery had caused Mr Mitchell to take some time off work but, by September 2008 he had resumed work on a full time and unrestricted basis.
It was presumably because of his history of spinal conditions that, as Mr Mitchell himself described the situation, his 18 September 2013 physical injury claim was for “exacerbation” of his (underlying) physical condition. It is a history that also provides both a background to Mr Mitchell’s claim, and also a background to Comcare’s July and August 2014 communications with Mr Mitchell about his claim.
About three months after Mr Mitchell had lodged his injury claim, in December 2013, Comcare had received a medical report from a consultant orthopaedic surgeon, Dr Young. It opined that Mr Mitchell had suffered an aggravation of his pre-existing spinal condition and was likely to be suffering from further degenerative disease. Dr Young suggested that Mr Mitchell’s condition should be investigated with an MRI study. He also predicted that the imaging study would likely show progression of lumbar spondylosis and degenerative disc disease. It was as a result of Dr Young’s December 2013 opinion that (on 31 January 2014) Comcare had accepted Mr Mitchell’s claim for aggravation of lumbar and cervical spine sprain conditions.
The MRI imaging study Dr Young recommended was carried out on 4 March 2014. The study report noted the artefacts of the surgery Mr Mitchell had undergone in May 2008. It observed that the postsurgical appearance was “unremarkable” and there were no features to suggest neural compromise”.
A similar view emerges from a slightly later, 3 April 2014, report from Mr Mitchell’s treating orthopaedic surgeon. He noted that it had been “a few years” since he had seen Mr Mitchell after the 2008 surgery. Prior to that surgery, in a January 2008 report, the surgeon noted that Mr Mitchell had significant spinal deformity and left sided weakness. Despite having been “quite well” for many years, he had developed intense lower back pain – some months after experiencing “unusual” feelings as a result of back massage he had whilst holidaying in Bali. The surgeon’s review of plain Xray film and CT scan revealed gross disc degeneration at L5/S1, which the surgeon opined was likely the operative reason for his then current pain symptoms. In the surgeon’s April 2014 report he noted the March 2014 lumbar spine MRI study, and observed that there was no evidence of disc extrusion, or central or foraminal stenosis. There were some “minor degenerative disc changes” in parts of Mr Mitchell’s lumbar spine other than L5 / S1. However none of these was an apparently significant matter because the orthopaedic surgeon expressed his view that Mr Mitchell’s spine was stable. He considered that the appropriate treatment for Mr Mitchell’s ongoing pain was regular flexibility exercises and simple analgesics.
The March 2014 imaging study and the April 2014 orthopaedic surgeon’s report suggests that Mr Mitchell’s lumbar spinal condition had stabilised to the point where any ongoing symptoms he may have experienced were exclusively attributable to the underlying conditions that had preceded the 2008 surgery. That view was explicitly corroborated in a supplementary 5 June 2014 report from Dr Young, that addressed the March 2014 MRI imaging report. Dr Young reported that the MRI study contradicted his previously expressed apprehension about progressive degenerative disease. He thought that Mr Mitchell’s ongoing pain was probably muscular in origin, because there was no evidence of neurological compromise. He opined that the cause of this muscular pain was difficulty with skeletal balance related to his marked wry neck (torticollis) and his spinal fusion surgery. In response to a specific question as to whether the contents of the MRI study indicated that Mr Mitchell had returned to his pre-injury status, Dr Young agreed, and observed that there was no basis for any contrary view.
After obtaining these various reports Comcare wrote to Mr Mitchell on 2 July 2014. The letter set out the substance of the 23 December 2013 report, and that of both the March 2014 imaging study and of Dr Young’s June 2014 review report. The letter indicated the view that no further compensation was likely to be payable in relation to the aggravation of Mr Mitchell’s spinal condition. The letter invited Mr Mitchell’s response by 1 August 2014 and indicated that, in the absence of further information, Comcare would thereafter determine the claim on the basis of the then available information.
In an email exchange with Comcare the following day Mr Mitchell indicated that he felt he was not well enough to be able to continue to pursue the physical injury aspect of his claim. The next day the Comcare officer handling the matter re-assured Mr Mitchell that if he just wanted extra time to get around to dealing with the matter, Comcare was “happy to help with that”. Later the same day Mr Mitchell responded that “the main thing about my back injury the ATO caused was” his 2008 spinal fusion. He suggested that was the matter Comcare should be considering. But that suggestion seems quite inconsistent with both (i) the January 2008 opinion of Mr Mitchell’s treating orthopaedic surgeon (see paragraph 14 above) and his own characterisation of the injury as an “exacerbation” of his physical disability. In any event, Mr Mitchell thereafter took no action to pursue reconsideration of the Comcare decision. He has never submitted any material to challenge the reasoning involved in Comcare’s 1 August 2014 decision, or to contradict the contents of the medical reports and opinions to which Comcare’s 2 July 2014 communication had drawn attention.
The submissions made on Mr Mitchell’s behalf in support of the present application asserted that “prima facie” he had a meritorious claim for continuing incapacity as a result of his physical injury. The only material pointed to in support of that submission was a 21 March 2014 report from an occupational physician, Dr McBurnie. That report, which does not refer to the 4 March 2014 MRI report, could obviously not address the reasoning expressed in Comcare’s July and August 2014 communications with Mr Mitchell. The report primarily addressed Mr Mitchell’s prospects of being able to return to work. It addressed those prospects in the context of a history of “marked left-sided weakness” as a result of Mr Mitchell’s childhood trauma injury, and the subsequent development of “worsening deformity of his cervical and thoracolumbar spine” as a result of the “imbalance in his musculature”. Later the report continued that “the initial muscular imbalance and the subsequent surgery to most of his spine” predisposed Mr Mitchell to “degenerative disease and muscular pain”.
Properly understood Dr McBurnie’s report reflects essentially the same views as those Dr Young expressed, in his June 2014 report, about the significance of Mr Mitchell’s skeletal balance difficulties, and the cause of those difficulties. Dr McBurnie’s report does not address the possibility of a causative distinction between Mr Mitchell’s underlying spinal condition, and his working conditions, as contributors to his ongoing pain complaints. Her March 2014 report, made without focus on that distinction and without reference to either the March 2014 MRI report, or the subsequent views of Dr Kuru and Dr Young, provides no basis for anticipating the possibility of a reversal of the 1 August 2014 decision.
The essential reasoning in the 1 August 2014 decision was based on the proposition that the only relevant injury was an exacerbation or aggravation that had occurred in February 2008. It is however implicit in Mr Mitchell’s brief email exchange with Comcare on 4 July 2014 that he conceived at least the possibility of attributing the symptoms that he developed in 2008 to an earlier instance of asserted workplace negligence in 2001. That conception may be consistent with the assertion, in the September 2013 claim form, that Mr Mitchell had first become symptomatic, and first sought treatment in February 2002. But it is inconsistent with the imaging studies of January and February 2008 and inconsistent with the diagnosis of a grossly degenerated lumbo-sacral disc to which those studies led. Unsurprisingly, in view of that contradiction, it is a conception has never been articulated in any material that Mr Mitchell, or those acting on his behalf, have proffered in support of any challenge to the 1 August 2014 decision.
The totality of the available information to which I have referred strongly points to the absence of any basis for anticipating that reconsideration of the 1 August 2014 decision, and the physical injury claim it addressed, would lead to a different result. That proposition is rather corroborated by part of the submissions advanced on Mr Mitchell’s behalf in the present matter. The submissions characterised as an “unlikely scenario” that (if the present review application were to be upheld, and the matter remitted) Comcare would reinstate Mr Mitchell’s physical injury entitlement. That submission must be taken to have recognised and accepted that, in undertaking any such reconsideration Comcare would abide by its obligations under SRC Act s 72. So understood, the submission tends to acknowledge the absence of any evidentiary basis, or significant reason, that would point to the realistic possibility of a different outcome as a result of any reconsideration of the 1 August 2014 decision.
DELAY IN REQUESTING RECONSIDERATION
Mr Mitchell’s initial reason for not promptly pursuing any request for reconsideration of the 1 August 2014 decision was that he was not well enough. The genuineness of his contemporaneous views to that effect was implicitly accepted by the Comcare officer with whom he communicated in July and August 2014. That is evident from the email exchange between them on 3 and 4 July 2014 – following receipt of the 2 July 2014 letter foreshadowing the potential termination of compensation entitlements for the physical injury. In the last email from the Comcare officer he expressly indicated a willingness to defer any further decision, until Mr Mitchell felt better able to deal with the matter. He asked Mr Mitchell to keep him updated on what he wanted to do about the claim. Despite that request Mr Mitchell has provided no further information, and no real explanation for its absence.
The proposition that Mr Mitchell’s own psychological ill health was a significant operative reason for the absence of any reconsideration request prior to March 2018 is very questionable, in the light of (i) the minimal formality that such request would have involved and (ii) the statutorily required co-operative attitude that Comcare had displayed in relation to the August 2014 decision – which it would have been required to continue to adopt in ascertaining the basis for any such request:- see Comcare v Willems (1996) 70 FCR 244; 43 ALD 253 at 258 & 259. Those considerations, suggesting that Mr Mitchell’s ongoing psychological ill health provided no significant reason for the absence of any reconsideration request, are rather reinforced by the impression derived from the apparent pattern of Mr Mitchell’s medical attendances between 2014 and late 2016. In the course of cross examination in the present proceedings Mr Mitchell was taken to the notes of various medial consultations he attended in that period. Those attendances were far from numerous and did not illustrate ongoing symptoms and difficulties that would have presented a significant obstacle to the minimal effort that would have been required to initiate a reconsideration request. For example, in June 2014 he had told his general practitioner that he was no longer depressed. In November 2015 he reported that he was doing well, despite having occasionally missed doses of his anti-depressant medication. In November 2016, he was obviously well enough to request assistance from his doctor in providing a report to support him in a dispute he had with the building committee in the premises where he lived.
The point is best illustrated by regard to the notes of the consultation Mr Mitchell had with his general practitioner in late December 2016. That consultation occurred after Mr Mitchell had received from Comcare notice of the likelihood of a decision to terminate his compensation entitlements relating to his psychiatric condition, and a copy of the psychiatric report which appeared to provide a basis for such decision (an 11 November 2016 report from Dr Frank Chow). Mr Mitchell had first raised the matter with his general practitioner in early December 2016, and had then returned to see him, and discuss Dr Chow’s report, on 20 December 2016. The notes of the latter attendance record Mr Mitchell’s apparent explanation that he had made a deliberate decision to rely on his psychological injury claim, and to let the physical injury aspect of his claim “pass” because it involved too much paperwork and follow up with medical practitioners. When he was taken to these details of the 20 December 2016 attendance, Mr Mitchell said that the “paperwork” difficulties were perhaps a small part of the reason for his inactivity. He insisted that the major reason was his belief that he was out of time to request any reconsideration.
That insistence, and the assertion that, until very recently, he was unaware of the potential to make a belated request for reconsideration, is difficult to accept as a credible recollection of Mr Mitchell’s actual state of mind after August 2014. Part of the difficulty arises from the fact that he had made precisely such a request some three months before the 1 August 2014 decision. That was on 28 May 2014 in relation to a decision dated 31 January 2014. Another part of the difficulty arises from the contents of the attachment to the decision notice – which Mr Mitchell conceded he would have received, and read:- see paragraph 6 above. In the light of those matters, in the course of his evidence in the present matter, Mr Mitchell conceded that he was aware of the possibility of making an untimely reconsideration request, but asserted that he had thought, once the 30 day period had expired, the possibility was restricted to factual “mistakes” and errors. He proffered no basis for that understanding. Nor did he proffer any evidence to explain why he may have thought that a request for reconsideration of the 1 August 2014 decision – based on his 4 July 2014 suggestion that his symptoms had a relevant causal origin predating February 2008 (see paragraph 20 above) would have fallen outside the permissible request for reconsideration of a “mistake”.
Against that background I am inclined to think that Mr Mitchell’s currently asserted ignorance of the ability to make a late reconsideration request is a rationalisation he has retrospectively embraced, rather than an accurate recollection of his actual state of mind. The evidence of his contemporaneous conduct tends to support the view that the more likely reason for Mr Mitchell’s failure to pursue any reconsideration request in relation to the 1 August 2014 decision lies in a combination of two considerations. The first is his probable contemporary understanding (at least between 2014 and the January 2017 decision) that it was unlikely to affect his ongoing compensation entitlement – given his psychological condition. The second is an implicit recognition of the difficulty of contradicting the apparent significance of the various March to June 2014 reports to which I have referred above.
THE PREJUDICE TO THE RESPONDENT
Comcare concedes that it cannot point to any particular prejudice that would be occasioned if it was required to embark on the reconsideration process. It alludes to the possibility of “presumptive prejudice” attributable to the passage of time. But in a situation where Comcare was well informed of the circumstances of the original claim, and investigated it in 2013 and 2014, to the extent that it considered it appropriate to so do, the prospect of any significant prejudice of any kind seems minimal. Especially is that the case where Mr Mitchell has not advanced any new material to support the contentious reconsideration request.
Allied to that proposition, it was urged on Mr Mitchell’s behalf that, despite his inactivity in relation to the presently contentious reconsideration request, his related psychological incapacity claim has been well known to Comcare, and had been a matter of ongoing consideration by it since the 1 August 2014 decision. The thrust of the submission is that Mr Mitchell has always attributed his ongoing incapacity to his Commonwealth employment, and that the distinction between his physical and psychological injuries is blurred and problematic.
There is some force in this submission, but it is also tellingly imprecise. This is best illustrated by the proposition put in the written submissions advanced on Mr Mitchell’s behalf, that he was retired “on the basis of both his physical and psychiatric conditions”. Mr Mitchell’s “physical condition” was, as Dr Mc Burnie’s 21 March 2014 report makes clear, one that involved a long standing developmental imbalance that had pre-disposed him to spinal pain and the risk of degenerative spinal pathology. His working conditions exacerbated his pain – in that there were no feasible workplace adjustments that could be made to provide him with meaningful pain free work duties. But the critical factual matter, for present purposes is not whether Mr Mitchell had a physical condition that incapacitated him from work, but whether or not that physical condition itself, and more specifically, any continuing exacerbation of it, had an employment related cause. The focus on that question draws attention back to the lack of any material pointing to the merits of the challenge to the 1 August 2014 decision.
GENERAL PREJUDICE AND FAIRNESS.
The considerations of general prejudice and fairness alluded to in the principles set out in O’Gorman (see paragraph 8 above) have their most direct application in the context of a decision making regime and procedures involving determinations by Courts and Tribunals:- see Rothsay and Secretary, Dept of Education, Employment and Workplace Relations (2011) 121 ALD 184|(2011) 54 AAR 562|[2011] AATA 280 – citing Re Johnson and Commonwealth [1990] AATA 1. They have lesser application in the context of an application of the kind that Mr Mitchell made to Comcare on 2 March 2018, given (i) the purposes of the SRC Act, (ii) the generality of the permission that SRC Act s 62(3)(b) gives and (iii) the unrestricted statutory freedom that Comcare has to reconsider any determination it has made:- see SRC Act s 62.
Nevertheless, the statutory provisions ordinarily require that a reconsideration request should be made within 30 days. Furthermore, in order to inform and expedite the reconsideration process, the initiating request is required to provide reasons. That requirement ought to be construed reasonably generously, and not regarded as imposing an inflexible procedural threshold. Nevertheless, the specificity of any proffered reasons for a reconsideration request, and conversely, the absence of meaningful or substantive reasons, are relevant considerations to address. That is particularly so where the request is itself belated, and a question of the present kind arises for determination.
CONCLUSION
Mr Mitchell’s March 2018 reconsideration request was both long delayed and lacking in specificity. Neither of those observations are necessarily fatal to his request, but they focus attention on the reasons for the delay, and on the apparent prospect of a reconsideration outcome different to the contentious 1 August 2014 decision. In relation to that prospect, the satisfaction required to make it appropriate to accept a belated reconsideration request is not that the reconsideration process is actually likely to produce a different result. It is merely satisfaction that, in the totality of the circumstances, including Comcare’s obligations under SRC Act s 72, reconsideration of the decision is appropriate. In the present case, Mr Mitchell has long delayed his reconsideration request and offered nothing of substance to support its merits – in either the request itself, his evidence or in the submissions advanced on his behalf. In those circumstances I am not satisfied that the correct or preferable decision is to set aside Comcare’s 9 March 2018 decision. That decision is affirmed.
I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member
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Associate
Dated: 15 May 2018
Date(s) of hearing: 23 April 2018 Counsel for the Applicant: John Mrsic Solicitors for the Applicant: Lisa Meys - LHD Laywers Counsel for the Respondent: Brendan Kelly Solicitors for the Respondent: Angel Fernandes - Sparke Helmore Lawyers
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