Noonan and Comcare (Compensation)

Case [2019] AATA 515

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.

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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 14

Cases
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 43

Swanton v Military Rehabilitation and Compensation Commission [2017] FCA 1142

REASONS FOR DECISION

Deputy President Gary Humphries AO

8 February 2019

INTRODUCTION

  1. 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.

  2. 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…

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AGLC
Noonan and Comcare (Compensation) [2019] AATA 515
Case
[2019] AATA 515
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Ms Noonan for an extension of time to lodge an application for review of a decision by Comcare. The application was heard by Deputy President Gary Humphries AO of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether it was reasonable in all the circumstances to grant Ms Noonan an extension of time to lodge her application for review, given that the statutory time limit had expired. This required the Tribunal to consider the reasons for the delay, the potential prejudice to Comcare, and the strength of Ms Noonan's underlying case.

The Tribunal acknowledged Ms Noonan's explanation for the delay, attributing it to her debilitating mental illness, which was evident at the hearing. However, the Tribunal cautioned against treating mental distress as a carte blanche to ignore statutory time limits. It also considered that Comcare might suffer prejudice due to the effluxion of time since the relevant workplace events, particularly concerning the issue of reasonable administrative action and the difficulty in obtaining witness statements. Furthermore, the Tribunal assessed Ms Noonan's case as arguable but not strong, noting the presence of non-work-related factors contributing to her illness and the differing opinions of medical professionals.

Ultimately, the Tribunal was not positively satisfied that it was appropriate to set aside the statutory timeframe. The Tribunal noted that more than six months had passed since the deadline, and that extensions of this length were rare. It also considered the potential for justice to deteriorate with significant delay, as articulated in established legal principles. Accordingly, the Tribunal refused Ms Noonan's application for an extension of time.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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