Noonan and Comcare (Compensation)
[2019] AATA 515
•8 February 2019
Noonan and Comcare (Compensation) [2019] AATA 515 (8 February 2019)
Division:GENERAL DIVISION
File Number(s): 2018/7453
Re:Donna Noonan
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President Gary Humphries AO
Date:8 February 2019
Place:Canberra
Upon application of the Applicant lodged with the Tribunal on 19 December 2018 to extend the time within which she can make her application and upon the Respondent on 3 January 2019 by email to the Tribunal objecting to the Applicant’s request, and upon hearing Ms Noonan (the Applicant) and Mr Schofield on behalf of the Respondent on 7 February 2019, the Tribunal refuses the application to extend the time within which the application for review may be made under section 29(7) of the Administrative Appeals Tribunal Act 1975.
.....................................................................
Deputy President Gary Humphries AO
Catchwords
PRACTICE AND PROCEDURE – application for extension of time for making an application for review – whether Tribunal is satisfied that it is reasonable in all the circumstances to do so – application for extension of time is refused
Legislation
Administrative Appeals Tribunal Act 1975 ss 29, 65
Safety, Rehabilitation and Compensation Act 1988 ss 5A 14Cases
Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Comcare v A'Hearn [1993] FCA 498
Jackamarra v Krakouer [1998] HCA 27
Makings and K & S Freighters Pty Ltd [2018] AATA 9
McKenzie and Comcare [2016] AATA 1100
Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109
R v Lawrence [1982] AC 510
Re Hunter Valley Developments Pty Limited v Minister of Home Affairs and Environment (1984) 3 FCR 344
Saffioti and Comcare [2018] AATA 43Swanton v Military Rehabilitation and Compensation Commission [2017] FCA 1142
REASONS FOR DECISION
Deputy President Gary Humphries AO
8 February 2019
INTRODUCTION
The applicant in these proceedings, Ms Donna Noonan, was an employee of the Department of Defence. She submitted a claim for workers compensation dated 10 November 2017 in which she claimed psychological and physical injury which she said was the result of verbal and written bullying and harassment at her workplace. On 31 January 2018 Comcare by determination rejected her claim on the basis that the conditions claimed to have arisen as part of her injury – major depressive disorder, sleep apnoea, mycoplasma pneumonia and bronchitis – were not significantly contributed to by her employment at the Department.
Ms Noonan lodged a request for reconsideration but on 17 April 2018 a review officer of Comcare affirmed the earlier determination which rejected the claim. On 19 December 2018 Ms Noonan lodged by email an application for merits review with the Tribunal. She also lodged an application pursuant to s 29 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) for an extension of time in which to lodge the merits review application. In the latter application she indicated that she had received the reviewable decision of the Comcare delegate on 17 April 2018, the day it was made.
Pursuant to s 65(4) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), an application for merits review by the Tribunal must be lodged within 60 days of the giving of a reviewable decision under that Act to the affected person. Accordingly, Ms Noonan’s application to the Tribunal was slightly more than six months outside the window for lodgement provided for by s 65(4).
In her application for an extension of time, Ms Noonan provided the following reasons:
On compassionate grounds, I seek your consideration of my Application for Extension for Making an Application for Review [sic]. I received the last Comcare Review on 17 April 2018. During this timeframe, I had multiple challenges that I was trying to address, such as:
1. I had attended my third Department of Defence Fitness for Duty of Assessment with an Independent Medical Examiner. After already being on medical leave for 6 months, this report indicated that my PTSD and Major Depressive Disorder with High Anxiety had gotten worse;
2. I had been filling out forms for the Department of Defence requesting additional support from them during my illness, as I had exhausted all my leave credits. Defence lost my paperwork on a couple of occasions and the stress from this administrative error and advice, exacerbated my mental health condition [sic];
3. As my illness was first diagnosed in August/September 2016, I have spent my savings to pay for my medical treatments. As a result I had to file for financial hardship;
4. I cannot afford my prescribed psychological treatments, and have had to borrow money from my elderly father to pay for my prescribed medication and my basic needs;
5. I sought support from Centrelink in relation to obtaining Sickness Allowance, but was not able to get my husband to agree to the asset test for the Sickness Allowance;
6. As a result of my mental health condition, my husband of 30 years and I are divorcing;
7. After a year of being off of work for my mental health condition, I am trying to seek review for support from the Department of Defence, find a means to support myself and obtain prescribed treatment, all while trying to manage the relevant required administrative processes [sic];
8. My last Department of Defence Fitness for Duty was in October 2018. Again the Defence appointed Independent Medical Examiner determined that I needed to increase my prescription dosage for at least the third time, and I was not fit for duty.
I understand that I have not filed my Application for Review within the standard 60 days, which today I read in the 17 April 2018 letter from Comcare.
As you can see above, I had other matters that I needed to address, which became all too overwhelming for me to address at one time.
Is Comcare going to be disadvantaged or prejudiced by my delay? I believe the answer is No.
Comcare opposed the granting of an extension of time. In an email dated 3 January 2019 it summarised its reasons as follows:
1. The application should have been made by 16 June 2018 and there is a prima facie rule that proceedings should not be commenced outside the prescribed time: Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 3 FCR 344.
2. Ms Noonan has not provided an acceptable explanation for her delay of more than six months.
3. It would not be fair and equitable in the circumstances to extend the time because Comcare was entitled to consider that this matter was finalised and that it would not be required to devote further resources to it.
4. There is prejudice resulting from the long delay because the relevant events in the workplace happened in August 2016, some 2.5 years ago, and memories have faded; the evidence is compromised because of the passage of time.
The sole issue before the Tribunal at the interlocutory hearing on 7 February 2019 was whether Ms Noonan should be granted an extension of time to lodge her application. The Tribunal heard oral submissions from Ms Noonan and from Mr Andrew Schofield on behalf of Comcare. On the basis of those submissions, the Tribunal determined that an extension of time should not be granted pursuant to s 29 of the AAT Act.
Ms Noonan, as is her right, sought written reasons for the decision to refuse her application. Those reasons follow.
APPLICABLE LEGISLATIVE AND COMMON LAW PRINCIPLES
Section 29(7) of the AAT Act 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.
The discretion given to the Tribunal in s 29 is very wide.[1] The Tribunal has to be satisfied that it is reasonable in all the circumstances to grant the extension.[2] However, a number of earlier decisions provide guidance as to when and in what circumstances this broad discretion should be exercised.
[1] Paragraphs 9-14 of these reasons are based on the Tribunal's decision in McKenzie and Comcare [2016] AATA 1100.
[2] In this decision, italicised text is generally used to indicate direct quotations.
In Re Hunter Valley Developments Pty Limited v Minister of Home Affairs and Environment (1984) 3 FCR 344 Wilcox J at 348-349 articulated the now often-quoted criteria to be considered in an application for an extension of time to review a decision:
1. 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, unreported, at p 7).
2. 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.
3. 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.
4. 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.
5. 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.
6. 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 [it] found was an inexcusable delay on the part of the solicitors could not constitute an acceptable explanation for the delay in making the application.
To this, 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.
THE PARTIES’ CONTENTIONS
Explanation of the delay
At the hearing, Ms Noonan expanded on the reasons she had earlier given in writing to explain the reason for the delay in lodging her application. She explained that her mental illness had commenced in 2016, and in December 2017 my whole world started to collapse. Her illness and her divorce had left her stranded in Canberra. In consequence, she had failed to notice the 60-day deadline referred to in the reviewable decision. She said Everything has been so overwhelming. As she spoke to the Tribunal by telephone, she was clearly distressed and tearful, and said that she was finding it difficult to concentrate.
I asked her whether, if an extension of time was granted, she would be capable of progressing her claim before the Tribunal, given what appeared to be ongoing distress and incapacity. She responded by saying that if I had someone with me to support me she should be able to do that. She said she would obtain the services of a lawyer in Canberra to assist her.
Prejudice to Comcare?
Ms Noonan argued that there was no prejudice to Comcare by having consideration of her claim resume after a six-month hiatus. Mr Schofield responded by contending that Comcare had been entitled to assume that a decision not appealed against had been finalised. In this regard, he noted that her claim concerned administrative action said to give rise to a mental illness; the action in question dated back to early 2016. The evidence of others in her workplace would be relevant to the assessment of that claim, but memories may have faded in the three succeeding years. Mr Schofield said that the reasonable administrative action exclusion in s 5A of the SRC Act may be relevant to her claim, and detailed evidence from co-workers may be required in that context.
Mr Schofield also made reference to the prejudice to other claimants before the Tribunal if Ms Noonan’s restored claim were interposed before theirs.
Ms Noonan told the Tribunal that she did not consider that the 60 day time limit for filing of applications was a sufficient period to lodge an application.
Strength of Ms Noonan’s claim
Mr Schofield contended that, if this claim proceeded before the Tribunal, Comcare would rely on the evidence of a psychiatrist, Dr Antonella Ventura, to the effect that there were many contributing factors in the onset of Ms Noonan’s mental illness, and that most of these did not relate to employment. The non-employment related factors included tensions within her family, sleep apnoea, a head injury, mycoplasma pneumonia, a family bereavement and distance from her family. According to Dr Ventura, the one work-related factor was the investigation of Ms Noonan’s work performance. Even if this factor made a significant contribution to the onset of her illness, Mr Schofield argued that it may be excluded as a basis for liability by being reasonable administrative action undertaken reasonably.
Ms Noonan said she disagreed with aspects of Dr Ventura’s report, but said that, in any case, Dr Ventura had acknowledged that work-related issues were a factor in the onset of her illness. She said that her treating psychologist, Dr Sutton, was of the view that work had made a significant contribution to her illness, though she was not sure that he had reduced this opinion to writing. She also said that her mother’s death occurred after she had been diagnosed with mental illness, and so could not have been a relevant factor.
CONSIDERATION
The Tribunal is conscious that the Parliament has specified in the legislation a time limit within which applicants must bring their appeals to the Tribunal. The provision for appeal is not open-ended, and it follows, I think, that the further an application strays outside that time limit, the more powerful the justification for restoring it to the Tribunal’s remit needs to be. The starting point, as Wilcox J observed in Hunter Valley, is that a late application should not generally be entertained, and that the Tribunal should decline to do so unless positively satisfied that it is proper for it to be done.
Ms Noonan did provide, in my opinion, a convincing explanation for the delay in lodging her application. The mental illness which she said had debilitated her over the preceding year was in evidence on the day of the hearing, observable in her distressed state. Having said that, I acknowledge Comcare’s submission that mental distress is a condition facing many applicants to the Tribunal, and that it would be unsatisfactory to treat such distress as providing a carte blanche to ignore the time limits prescribed by legislation. Here, I consider that her mental illness is a credible but not sufficient basis for the neglect of her claim.
It also appeared to me that, if the mental state which Ms Noonan exhibited at the hearing were to continue, it would be difficult for her to properly instruct a lawyer appointed to act for her and generally to prosecute her claim. In this respect I presume that there was no juncture in the six month period prior to the lodging of her review application when she was sufficiently composed to attend to her rejected claim for compensation. That fact does not augur well for her capacity to deal with that matter from this point forward, even with the assistance of a lawyer. Nonetheless, while this may be noted, I do not place considerable weight upon it.
I also consider that there is some weight in Comcare’s submission that it could experience prejudice by virtue of the effluxion of time since the relevant events at Ms Noonan’s workplace unfolded. The issue of reasonable administrative action seems very likely to be a live issue were the matter to proceed, and it is far from fanciful to observe that difficulties in obtaining detailed statements from relevant witnesses at the Department three or so years after the relevant events may disadvantage Comcare.
Finally, I should consider the strength of the case Ms Noonan would bring to the Tribunal if the extension of time were granted. Without being required to make a detailed appraisal of the evidence as it presently stands (see Jackamarra v Krakouer [1998] HCA 27 at [9]), it does seem to me that there are significant handicaps facing her in her quest for compensation. The non-work-related factors referred to by Dr Ventura (which, with the exception of her mother’s death, were not denied by Ms Noonan) lead me to surmise that establishing that the work-related factor was significantly responsible for her illness will be no simple task. This is particularly so given that Comcare relies on the opinion of a psychiatrist, whereas Ms Noonan relies on the opinion of her GP and a psychologist (the latter’s views being supposed rather than actual at present). Even in the event that she can establish a significant contribution from work, the issue of reasonable administrative action (said to arise from an investigation into her work performance) further clouds her prospects. From all this I deduce that her case may be described as arguable but not strong.
CONCLUSION
In all the circumstances, I cannot be positively satisfied that it is appropriate to set aside the statutory timeframe established by Parliament. I am impelled to this conclusion, in particular, by the knowledge that more than six months has passed since the expiry of the deadline for lodging her application. The Tribunal has previously granted extensions of time for shorter periods, but extensions of six months’ length or greater are somewhat rarer, and for good reason. In Swanton v Military Rehabilitation and Compensation Commission [2017] FCA 1142 and Makings and K & S Freighters Pty Ltd [2018] AATA 9 the Tribunal refused extensions of time covering periods of seven months and 19 months respectively, whereas an extension of four months was granted by the Tribunal in Saffioti and Comcare [2018] AATA 43.
I am also mindful that it is reasonable to suppose that Comcare will encounter difficulty in marshalling evidence of what occurred on her workplace in 2016, and that this impediment would make it less fair to restore Ms Noonan’s claim when Comcare had assumed, reasonably, that it had lapsed. As Lord Hailsham of St Marylebone in R v Lawrence [1982] AC 510 at 517 succinctly put it, Where there is delay the whole quality of justice deteriorates. The longer the delay, the greater, generally-speaking, is the deterioration. McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 expressed the principal as follows (at 551):
The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
Accordingly, the Tribunal refuses Ms Noonan’s application to extend the time within which her application for review may be made under section 29(7) of the Administrative Appeals Tribunal Act 1975.
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 AO
........................................................................
Associate
Dated: 19 March 2019
Date(s) of hearing: 7 February 2019 Date final submissions received: 7 February 2019 Applicant: In person Solicitors for the Respondent: Mr Andrew Schofield, Comcare Legal
8
18
0