Novosel and Comcare
[2011] AATA 182
•18 March 2011
Administrative Appeals Tribunal
INTERLOCUTORY DECISION AND REASONS FOR DECISION [2011] AATA 182
ADMINISTRATIVE APPEALS TRIBUNAL ) No 2010/5559
)
GENERAL ADMINISTRATIVE DIVISION )
Re ANTHONY NOVOSEL Applicant
And
COMCARE
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member Date18 March 2011
PlaceCanberra
Decision The application for extension of time is granted.
...........................[sgd]...............................
Professor RM Creyke, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time – matter dismissed under s 42(1A) – whether acceptable explanation of delay – delay to be considered is period after dismissal - whether applicant had otherwise contested finality of decision – whether prejudice to respondent or other persons – extension of time granted
PRACTICE AND PROCEDURE – reinstatement of matter – no error by tribunal – whether error by solicitors – reinstatement refused
Administrative Appeals Tribunal Act 1975 (Cth) s 29, 42A
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 65
Comcare v A’Hearn (1993) 119 ALR 85
Comcare v Grimes (1994) 33 ALD 548
Duong v Australian Postal Corporation (2005) 41 AAR 288
Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 72 ALD 652
Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315
Minister for Health and Aged Care v Pharmacia & Upjohn (2001) 65 ALD 76
Re Lower and Comcare (2001) 64 ALD 521
Re McKenzie and Secretary, Department of Social Security (1998) 54 ALD 281
Re Petuna Management Pty Ltd and Australian Fisheries Management Authority (1999) 54 ALD 130
Re Pharmacia & Upjohn Pty Ltd and Minister for Health and Aged Care (2000) 58 ALD 285
Re Stevenson and Commonwealth (1987) 13 ALD 524
SZLIO v Administrative Appeals Tribunal (2008) 48 AAR 5
Windshuttle v Deputy Commissioner of Taxation (1993) 46 FCR 235
REASONS FOR INTERLOCUTORY DECISION IN EXTENSION OF TIME APPLICATION
18 March 2011
Professor RM Creyke, Senior Member
1. In 2006 Mr Anthony Novosel suffered a left knee and left leg injury in a work-sponsored sports event. At that time, Mr Novosel, was working as a parking inspector with the then ACT Department of Urban Services, now the ACT Department of Justice and Community Safety.
2. Comcare accepted liability for the knee condition on 29 June 2006. Compensation was payable until 24 September 2008. On that date, Comcare ceased liability on the basis that Mr Novosel was no longer suffering from the effects of the knee injury. That decision was upheld in a reviewable decision of 17 November 2008. Mr Novosel appealed that decision to the Tribunal on 7 January 2009.
3. Mr Novosel withdrew his appeal application on 7 December 2009 and on 9 December 2009 the Tribunal dismissed the matter. On 23 December 2010, Mr Novosel sought to reopen the appeal. The Tribunal must consider, among other things, whether to extend the time to enable him to do so.
4. The application for an extension of time was heard on 15 February 2011 and a further interlocutory hearing was held on 10 March 2011. At the second hearing the Tribunal indicated to the parties that since the claim involved matters relevant to other Comcare claims, it would be preferable to withdraw the extension of time application and for the various claims to be consolidated by Comcare so that the Tribunal, if necessary, could hear all the matters together. In the event that was not acceptable to the parties. The representative for Comcare, however, agreed to recommend that Comcare expedite its hearings of all the related matters so that if an appeal was sought against the decisions in train within Comcare they could be heard by the Tribunal concurrently with the current appeal.
Legislation
5. The relevant provisions are found in the Administrative Appeals Tribunal Act 1975 (Cth) (Act).
29 Manner of applying for review
…
Tribunal may extend time for making application
(7) 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 … if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
(8) The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.
(9) Before determining an application for an extension of time, the Tribunal may, if it thinks fit, require the applicant to give notice of the application to a specified person or persons, being a person or persons whom the Tribunal considers to be affected by the application.
(10) If a person to whom a notice is given under subsection (9), within the prescribed time after the notice is received by him or her, gives notice to the Tribunal, as prescribed, stating that he or she wishes to oppose the application, the Tribunal shall not determine the application except after a hearing at which the applicant and any person who so gave notice to the Tribunal are given a reasonable opportunity of presenting their respective cases.
42A Discontinuance, dismissal, reinstatement etc. of application
…
Deemed dismissal─applicant discontinues or withdraws application
(1A) A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.
(1B) If notification is so given, the Tribunal is taken to have dismissed the application without proceeding to review the decision.
…
Dismissed application taken to be concluded
(6) If, under this Act, the Tribunal dismisses an application or an application is dismissed on its behalf, the proceeding to which the application relates, unless it is reinstated under subsection (9) or (10), is taken to be concluded.
…
Reinstatement of application
…
(10) If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
Issues
6. Although counsel for Mr Novosel did not explicitly raise the issue of reinstatement of the application for review, it was indicated as a possibility, in addition to the application for an extension of time, by the representative for Comcare. In deference to Comcare’s submissions the Tribunal has addressed this question.
7. Accordingly, the two issues are:
· whether the Tribunal should reinstate Mr Novosel’s application under section 42A(10) of the Act; and
· whether the Tribunal should extend the time for Mr Novosel to make a fresh application to the Tribunal under section 29(7) of the Act.
Background
8. Mr Novosel has conditions of ‘sprain of other specified sites of knee and leg (left)’ which Comcare accepted on 29 June 2006. He also has an accepted condition of adjustment disorder that was found to be related to his knee condition. By September 2008, Mr Novosel had returned to full-time work, although he remained on modified duties.
9. Earlier, on 26 June 2008, Comcare informed Mr Novosel that there may be no present liability for the left knee injury under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). On 24 September 2008, Comcare ceased payment of compensation for the accepted left knee condition on the basis of medical evidence that Mr Novosel was fit for full-time modified duties and in time would return to full-time, unrestricted work. That decision was upheld on review on 17 November 2008. On 7 January 2009, Mr Novosel appealed to the Tribunal.
10. On 3 August 2009, Mr Novosel underwent further arthroscopic surgery on his left knee. His orthopaedic surgeon, Dr Kevin Woods, reported that he believed Mr Novosel would have recovered fully from the operation in three months, and would return to full-time work. However, early in 2010, Mr Novosel dropped back to four days a week, and he made a claim to Comcare for his Wednesdays off work. In early 2010, Mr Novosel had moved from his position as a parking inspector to a clerical position in the same agency.
11. In relation to the appeal concerning the knee claim, a neutral evaluation report was provided by Tribunal Member Dr Michael Miller on 2 December 2009. That report noted that on the medical evidence then available it was unlikely that Mr Novosel’s appeal to the Tribunal would be successful. Accordingly, on 7 December 2009, Mr Novosel withdrew his appeal. The Tribunal formally dismissed the appeal on 9 December 2009. On 23 December 2010, Mr Novosel sought to reactivate the appeal and requested an extension of time in order to do so.
12. Comcare opposed the application. In a letter of 27 January 2011, the legal representative for Comcare noted that Mr Novosel’s ‘previous AAT application (2009/50) was properly concluded following dismissal under section 42A(1B) of the’ Act. It was also contended that ‘no evidence has been provided by [Mr Novosel] in support of his application and, as such, there is no basis on which the AAT could find that the granting of an extension of time is reasonable in the circumstances’.
13. At the hearing Mr Novosel provided an affidavit setting out the history of the matter. He claimed that, following the publication of the neutral evaluation by Dr Miller, he was advised by his former solicitors to withdraw his application in relation to his knee condition and to concentrate on his permanent impairment claim for his adjustment disorder.
14. He noted that at the time of the decision to withdraw his appeal he ‘thought the knee operation [on 3 August 2009] was satisfactory’ and that he had been able to ‘resume work as of 3 September 2009’. He also then believed he ‘would not have any more problems with the knee’.
15. Mr Novosel’s affidavit also stated by way of explanation for his decision:
At around the same time, I was under a lot of stress. I was not really coping well mentally and psychologically, partly because of my workload and the pressure of meeting workplace demands in spite of my injuries. I also felt scarred from being previously ostracised at Parking Operations.
16. He said his decision relating to the knee was also made because his former solicitors had told him that if he continued the claim he ‘would have to pay legal costs as they arose, which of course I could not afford’. His current solicitors, according to evidence at the hearing, accepted payment on a ‘no win, no fee’ basis.
17. In summary, Mr Novosel said he ‘relied entirely on my solicitors’ advice. At that time, I felt I had to make that decision for my own sanity and for personal and financial reasons’. In October 2010, his file was transferred to new solicitors who advised him to seek reinstatement of his original appeal. The application for reactivation of the application for review was lodged on 23 December 2010.
Consideration
18. The Tribunal accepts that Mr Novosel has made a fresh application for review, for which an extension of time must be granted under section 29(7) if he is to be successful.[1] In accordance with section 29(9) Comcare was notified and opposed the application. Comcare also indicated that there was a possibility of a claim for reinstatement of the application for review under section 42A(10) of the Act, a step for which no time limit applies.
[1] Re Lower and Comcare (2001) 64 ALD 521.
19. The decision which is the subject of the application is the decision of 17 November 2008. The application was withdrawn on 7 December 2009. On 23 December 2010, Mr Novosel applied for the time to be extended for him to lodge a second application for review of the decision of 17 November 2008. The fact that Mr Novosel had withdrawn a previous application does not prevent him seeking to reactivate the application for review.[2]
[2] Comcare v Grimes (1994) 33 ALD 548; Re Stevenson and Commonwealth (1987) 13 ALD 524.
Reinstatement
20. Section 42A(10), which deals with reinstatement of applications to the Tribunal, applies only where an application has been dismissed ‘in error’. The relevant error is not confined to an administrative error.[3] If no error can be established, the Tribunal’s functions in the matter are concluded.[4] Section 42A(6) of the Act reinforces the earlier findings on this issue by providing that if an application is dismissed and not reinstated ‘the proceeding to which the application relates … is taken to be concluded’.
[3] Goldie and Minister for Immigration and Multicultural and Indigenous Affairs (2002) 72 ALD 652 at 657-659 per Wilcox and Downes JJ.
[4] Re McKenzie and Secretary, Department of Social Security (1998) 54 ALD 281.
21. The source of the ‘error’ is not confined to the Tribunal and may extend to the applicant, and the applicant’s solicitors. In Goldie v Minister for Immigration and Multicultural and Indigenous Affairs, Wilcox and Downes JJ in the Full Court addressed what might constitute an ‘error’ for the purposes of an application for reinstatement under s 42A(10) of the Act:
The fault may have lain elsewhere, provided it induced the error. For example, because of a mistake as to his or her instructions, a solicitor or other representative of a party might have wrongly consented to a dismissal order or filed a notice of discontinuance. No fault would attach to the Tribunal; but, if the solicitor’s mistake induced the dismissal of the action, it could properly be said the application had been "dismissed in error.[5]
[5] Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 72 ALD 652 at 657 per Wilcox and Downes JJ.
22. No administrative or other error was made by the Tribunal in dismissing Mr Novosel’s application, nor was this suggested. The decision was consented to by both parties and, on the facts before the Tribunal, was made consciously and freely by Mr Novosel.
23. In his affidavit for the purposes of this application Mr Novosel indicated only that following the receipt of the unencouraging evaluation by Dr Miller he decided, on the advice of his solicitors, to focus instead on his claims for the adjustment disorder. He noted that he was also under personal and financial stress at the time. Mr Novosel acknowledged that it was not until his new solicitors advised him, in the latter months of 2010, to reactivate his application to the Tribunal that he decided his earlier decision was ill-advised.
24. This account illustrates that the reason for the withdrawal was a deliberate decision on the part of Mr Novosel, in light of his personal and financial circumstances, and following receipt of the evaluation and his solicitor’s advice, to discontinue his application. The decision was not based on any error by himself, or due to advice by solicitors or others.
25. The transfer of the file, following the closing down in Canberra of his former law firm, and the different advice provided by his new solicitors in December 2010, was not a reason for the dismissal of the application. As a matter of logic, legal advice received after a dismissal of an application which is contrary to the legal advice on which the decision to withdraw was made, is not contemplated by section 42A(10). It is only an error which preceded the dismissal which is relevant.
26. Counsel for Mr Novosel indicated at the interlocutory hearing that Mr Novosel’s decision was made on poor legal advice, implying that the advice was legally flawed. However, there was no legal error by Mr Novosel’s former solicitors preceding the application for dismissal. The advice was based on information in the form of a neutral evaluation provided by the Tribunal about the likelihood of success in the matter, based on the evidence then available. The advice invited an exercise of judgment by Mr Novosel’s former solicitors and by Mr Novosel. Mr Novosel accepted that advice.
27. The solicitors did not misconstrue his instructions, nor did they wrongly file the application for dismissal.[6] It can be assumed that they simply adopted a cautious approach, given the then evidence, and Mr Novosel acted on their advice. Accordingly, as there was no factual or legal error in the Tribunal’s dismissal of Mr Novosel’s appeal in December 2009, the Tribunal discounts any suggestion that the application should be reinstated.
[6] SZLIO v Administrative Appeals Tribunal (2008) 48 AAR 5 at 7 per Tamberlin J.
Extension of time
28. The principal focus of the application was for an extension of time to lodge a new application for review by the Tribunal. Factors to be considered in granting an extension of time were set out in Hunter Valley Developments Pty Ltd v Cohen.[7] Although those factors were being applied to an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth), they have generally been applied to applications to the Tribunal. The factors, which are not exhaustive, were helpfully paraphrased by Edmonds J in relation to an application to the Tribunal, in Duong v Australian Postal Corporation:
[7] Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315.
(1) Prima facie, proceedings should be commenced within the prescribed period and an applicant for extension must show ‘an acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time.
(2) Any action taken by the applicant, other than by making an application for review, 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’) and a case where the decision-maker was allowed to believe that the matter was finally concluded.
(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.
(4) However, the mere absence of prejudice is not enough to justify the grant of an extension. In this context, public considerations often intrude. A delay which may result, if the application is successful, in the unsettling of other people or of established practices 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.
(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. [8][8] Duong v Australian Postal Corporation (2005) 41 AAR 288 at 293-294.
29. A key public interest factor for the Tribunal in exercising its discretion to extend time is the desirability of achieving finality of decision-making. At the same time, the Tribunal does not take an unduly strict approach to the limitation periods if a just outcome requires otherwise.[9]
Acceptable explanation for delay
[9] See e.g. Comcare v A’Hearn (1993) 119 ALR 85.
30. The Tribunal notes that making a finding that there is an acceptable explanation for delay is not a condition precedent to the grant of an extension of time.[10] Nonetheless, it is a factor to be taken into account. Counsel for Comcare contended that Mr Novosel 'made a conscious decision to cease [advancing his claim] and, in that context, there is not an acceptable explanation'. In addition, he said there had been 'a protracted period [after the limitation period] and the passage of time is such that Comcare could reasonably conclude that the matter had been concluded'.
[10] Comcare v A’Hearn (1993) 119 ALR 85 at 88.
31. The delay in this matter is just under two years outside the 60 day time limit prescribed by the Act, as modified by section 65 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The reviewable decision was made on 17 November 2008. Counsel for Mr Novosel argued that the delay was in fact only from the date of the withdrawal, namely, 7 December 2009, since prior to that date Mr Novosel was actively pursuing his claim. In other words he argued that the delay was only about 12 months.
32. Mr Novosel brought his first application to the Tribunal to review the 17 November 2008 decision in good time and the matter was being pursued for the initial period of 12 months. To the extent that prejudice to Comcare is a factor which is to be considered, the only prejudice which could arise is in the time since the application for review was dismissed. The Tribunal also takes into account the fact that any explanation for the delay need only address the period from 7 December 2009. Prior to that date there was no need to provide such an explanation since Mr Novosel was pursuing his claim. The Tribunal therefore accepts that the delay under consideration is the period from 7 December 2009 to 23 December 2010, just over 12 months.
33. The explanations for the delay by Mr Novosel are set out in his affidavit and are referred to at paragraph 28 of these reasons. A factor in his decision according to his affidavit was that he believed, following the second operation on his knee on 3 August 2009, that his physical problems had resolved, as evidenced by his being able to resume work in September 2009. In other words, when his former solicitors advised him to focus his applications for review on his adjustment disorder, rather than his knee, he was content to do so because he believed his knee condition would no longer trouble him.
34. Mr Novosel also asserted in his application that ‘personal and financial reasons’ at the time reinforced his decision to withdraw. In his affidavit he asserted that he was at the time under stress at work, and was accordingly not coping mentally or psychologically, and that he ‘felt scarred’ from being ostracised at his former workplace; an ostracism which led in part to his accepted condition of adjustment disorder.
35. He did not provide any supporting evidence of these personal, including psychological, pressures, nor of his financial circumstances at the time. Nor did he state that these pressures were of such magnitude as to negate the voluntariness of his consent to the withdrawal. Nonetheless, the Tribunal accepts these were his reasons.
36. Mr Novosel also asserted that he received incorrect or misleading information from his former solicitors. According to his affidavit, the incorrect information was the advice given followed the discouraging neutral evaluation. The evaluation was, however, only an opinion, which Mr Novosel was free to accept or reject. The Tribunal notes that is has already found that the advice was not incorrect.
37. The advice to discontinue the application for his knee condition aligned with Mr Novosel’s own perception of the improvement to his knee following the second operation. In those circumstances, given his workplace pressures, his claimed financial constraints, and the fact that he was pursuing other elements of his claim, it was reasonable for Mr Novosel to have accepted the legal and medical advice provided to him and to have withdrawn his application.
38. However, once he became aware that his knee was not improving as he had anticipated, the issue is whether there is an acceptable explanation for his delay in seeking to reactivate the matter. Although Dr Woods noted in his report on 27 October 2009 that Mr Novosel was still experiencing pain, Dr Woods also stated that could be expected even some months after the operation. However, the pain apparently continued even after the three months had elapsed and Mr Novosel had moved to a more sedentary clerical job early in 2010. The psychiatric reports by Dr John Saboisky on 5 January 2010, and on 23 March 2010 by Dr Michael Prior, both referred to the continuation of pain and Dr Prior, to physical limitations on his knee.
39. So, despite his efforts through swimming, and work at the gym, Mr Novosel’s knee continued to trouble him after the period when he had been advised it would have recovered. At times his knee continued to collapse and it remained painful. So at least by the first quarter of 2010, Mr Novosel’s confidence in his recovery would have been wavering.
40. It is not surprising, therefore, that when he transferred his legal claims in October 2010 to a new firm, and received their advice that he should have continued his claim for his knee, that these developments led to his change of mind.
41. It can not be expected that in matters of judgement, such as this, all advice will agree. Nor can it be expected that applicants will necessarily be in a position to judge the niceties of the medical or the legal issues. In those circumstances, the decision to reactivate the claim, given Mr Novosel’s own awareness that his knee was not yet fully recovered, the new legal advice, and the later medical evidence, was a reasonable one. In summary, on the limited evidence provided, the Tribunal does not find that these explanations are unreasonable nor that it would not be ‘fair and equitable’ to accept these explanations for his delay.
Resting on his rights
42. Mr Novosel, as the history indicates, has taken steps to continue various claims relating to his two accepted conditions. He has maintained actions in relation to both conditions, albeit he did not, as from 7 December 2009, pursue his appeal in relation to the cease liability element of his knee injury. The correctness of that decision was in any event being re-examined in other applications he had made.
43. Mr Novosel developed an adjustment disorder as a consequence of his frustration at his physical disability and the ostracism he experienced in his former workplace because of the restrictions the injury imposed. Comcare initially denied the connection between Mr Novosel’s physical conditions and the adjustment disorder and refused liability. On 8 February 2008 the connection, however, was accepted and liability conceded. Compensation for the psychological condition is ongoing.
44. In the period under consideration Mr Novosel’s claims with Comcare are as follows. On 9 January 2010 Mr Novosel lodged an application for permanent impairment for his adjustment disorder, rejected by Comcare on 28 January 2010. On 23 September 2010, Mr Novosel lodged a second claim for permanent impairment for the psychological injury which was again rejected on 21 October 2010.
45. On 23 November 2010, Mr Novosel lodged a further claim for psychological injury claiming 10 per cent whole person impairment. In early 2010, Mr Novosel also lodged a claim for incapacity payments for time off work on each Wednesday due to a combination of his knee injury and his psychological injury. That application was rejected by Comcare on 28 June 2010, a decision affirmed on review on 6 October 2010. He sought review by the Tribunal of that decision on 21 January 2011.
46. On 5 November 2010, Comcare undertook an own motion reconsideration of the decision relating to the adjustment disorder. In the course of that reconsideration, Comcare issued a preliminary finding that Mr Novosel no longer suffered from the effects of his compensable knee condition and that the cause of his psychological condition was no longer due to the previously compensable knee condition. Mr Novosel was invited to respond.
47. On 11 November 2010, Mr Novosel’s solicitors wrote to Comcare enquiring about a reconsideration of the Wednesday’s claim; seeking reconsideration of the permanent impairment claim for the psychological injury; and questioning the timing of the reconsideration of both injuries and seeking one month delay. On 20 December 2010, Mr Novosel's solicitors wrote to Comcare expressly asking for 'formal' reconsideration of the decisions of 8 December 2010, 28 June 2010, and 21 October 2010.
48. On 18 January 2011, Comcare wrote to Mr Novosel’s solicitors in response to their letter of 20 December 2010 and said ‘your letter (20/12/10) has been accepted as a notification requesting reconsideration of the determinations of 21 October 2010 and 8 December 2010’. The letter noted that the decision of 28 June 2010 had been reconsidered in the reviewable decision of 6 October 2010. That decision was appealed to the Tribunal on 19 January 2011.
49. The history of these claims indicates that Mr Novosel was not ‘resting on his rights’. Indeed, the substantive issue which is the matter at issue in this application for an extension of time is involved in several of these other applications. On that basis, this factor does not inhibit his application for the extension of time.
Likelihood of success
50. The apparent merit of an applicant’s case is a significant factor in the mix of factors to be considered in an extension of time application.[11] In this matter, the change to Mr Novosel’s knee condition, necessitating an operation in August 2009, was not a circumstance before the decision-maker at the time of the cease effects reviewable decision of 17 November 2008.
[11] Re Pharmacia & Upjohn Pty Ltd and Minister for Health and AgedCare (2000) 58 ALD 285; affirmed on appeal, Minister for Health and Aged Care v Pharmacia & Upjohn (2001) 65 ALD 76.
51. Although the operation had taken place at the time of the neutral evaluation and the reviewable decision, according to the report of orthopaedic surgeon, Dr Kevin Woods on 16 September 2009, the long-term benefits of the second operation were not expected to be known for three months from the date of the operation, that is early November 2009.
52. The reviewable decision by the Comcare delegate on 17 November 2008 noted that the three medical experts, Dr Virginia Pascall, Dr Derrick Billett, orthopaedic surgeon, and Associate Professor Robert Oakeshott indicated that the applicant continued to report symptoms due to his knee condition, albeit they found no significant pathology in the knee. The reports on which the delegate relied were received on 13 September 2007 (Dr Pascall), 31 July 2007 (Dr Billett), and 4 April 2008 (Associate Professor Oakeshott). The neutral evaluation report relied on medical reports principally made prior to 3 August 2009. A subsequent report of Dr Pascall of 21 June 2009 also predated the later operation. In other words, the cease effects decision was not cognisant of later medical opinions in relation to Mr Novosel’s condition.
53. Mr Novosel claims he continues to experience pain in the left knee which at times collapses despite workouts at the gym, regular swimming and physiotherapy sessions which were discontinued in October 2010. He also regularly attends a pain management specialist. Dr John Saboisky, psychiatrist, reported on 5 January 2010 that Mr Novosel says he continues to experience chronic pain in the left knee. In a report of 27 October 2009 Dr Woods noted 'He is still troubled by discomfort in the knee'. Dr Michael Prior, psychiatrist, noted in his report of 23 March 2010 that his diagnosed condition of an adjustment disorder 'is due to his non-psychiatric condition of the pain and physical limitations of the knee'. He found 'no evidence of voluntary exaggeration or findings inconsistent with the claimed condition' and noted that 'his prognosis is guarded'. Not all the later medical evidence has been canvassed in this summary.
54. Prima facie, in light of the more recent medical evidence, the merit of Mr Novosel's knee condition warrants the reconsideration by the Tribunal of his appeal in relation to his knee injury.
Prejudice to Comcare or other person from delay
55. It is desirable for the party asserting prejudice to lead evidence to support the claim.[12] Prejudice to others who have relied on the decision may also be a reason to decline an extension of time.[13] The representative for Comcare asserted that there was prejudice to Comcare because there is no 'threshold of an injury in place to be able to rehabilitate or treat the applicant' so that in time the agency 'is able to mitigate its loss or manage its risk and treat and rehabilitate the applicant and reduce its future compensation burden'.
[12] Windshuttle v Deputy Commissioner of Taxation (1993) 46 FCR 235.
[13] Re Petuna Management Pty Ltd and Australian Fisheries Management Authority (1999) 54 ALD 130.
56. Counsel also submitted that to grant the extension 'would be unfair to those applicants who progressed their matters expeditiously and continue with them once they have been brought before the [T]ribunal'. He claimed 'There's also a concern about the use of public moneys', given that Comcare had already paid for Mr Novosel's case the last time and there would be at least one day's hearing time and additional costs if the extension of time were to be granted.
57. Counsel also submitted that all that was required for Mr Novosel to pursue his claim was to lodge a new application for review of the knee condition. However, the facts as established after the second hearing (see paragraphs [47] and [48]) indicate that Mr Novosel had already lodged an application for review which encompasses this matter. Comcare’s acceptance of the claim for reconsideration also furthers the possibility that all the matters before Comcare can be consolidated and considered together.
58. In addition, counsel for Mr Novosel pointed out that, should the substantive claim currently before the Tribunal be successful, all Mr Novosel would receive would be compensation for a small period of incapacity on Wednesdays for the knee condition.
59. The Tribunal considers that the rehabilitation argument has little merit. Mr Novosel asserts that at this stage he is not claiming additional rehabilitation costs. His physiotherapy treatment has ceased and he is maintaining a fitness program unaided.
60. Had the claim gone ahead, Comcare would have been facing the costs of the hearing. That has merely been postponed and can be mitigated if, as the Tribunal suggests, Comcare consolidates the claims and thereby reduces the existing and potential claims and number of hearings by the Tribunal.
61. The Tribunal makes no findings about whether other applicants will either know about or react to the grant of an extension of time in this matter. There may be some prejudice to the system. There is no immediate adverse impact to Comcare since this and other claims by Mr Novosel continue to be examined in the various extant claims being considered within Comcare.
62. On balance, given a reasonable explanation for the delay, some prospect of success, and overall the absence of prejudice to Comcare - not least because the applicant has continued to prosecute this and related matters - a consideration of the relevant factors favour the grant of an extension of time. Indeed there may ultimately be an advantage to Comcare, financially, if the claims as consolidated are heard together. The Tribunal grants the application for an extension of time.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member.
Signed: .................[sgd]..............................
C. Baillie, AssociateDate of Hearing 15 February 2011, 10 March 2011
Date of Decision 18 March 2011
Solicitor for the Applicant David Chen
Capital Lawyers
Counsel for the Applicant Allan Anforth
Solicitor for the Respondent Madelon Rosenberg
Dibbs BarkerCounsel for the Respondent Peter Woulfe
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