Novosel and Comcare - [2011] AATA 182

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Novosel and Comcare

Details

AGLC: Novosel and Comcare [2011] AATA 182
Case: [2011] AATA 182
Decision Date: 18 March 2011

CaseChat Overview and Summary

Novosel brought an application against Comcare for an extension of time to lodge an appeal against a decision of the Administrative Appeals Tribunal. The primary issue was whether the applicant had provided an acceptable explanation for the delay in lodging the appeal, and whether there was any prejudice to Comcare or other persons. A secondary issue was whether the tribunal had erred in dismissing the appeal, and whether any such error warranted reinstatement of the appeal.

The court considered the explanation provided for the delay, which was that the applicant had not realised the finality of the tribunal's decision until after the time for lodging an appeal had expired. The court found that this was an acceptable explanation, given the applicant's lack of legal representation and the complexity of the issues involved. The court also found that there was no prejudice to Comcare or other persons, as the delay had not caused any significant harm. The court noted that the delay to be considered was the period after the dismissal of the appeal, and that the applicant had contested the finality of the decision during this period.

The court found that there was no error by the tribunal in dismissing the appeal, and that any error by the applicant's solicitors did not warrant reinstatement of the appeal. The court held that the applicant had not demonstrated any exceptional circumstances that would justify reinstatement, and that the appeal had already been considered on its merits by the tribunal. The court therefore refused the application for reinstatement.

The court granted the application for an extension of time, on the basis that the applicant had provided an acceptable explanation for the delay and that there was no prejudice to Comcare or other persons. The court noted that the extension was limited to the period after the dismissal of the appeal, and that the applicant was not entitled to any further extensions in the future. The court also noted that the grant of an extension did not necessarily mean that the appeal would be successful, and that the applicant would still need to demonstrate that the appeal had merit.

Orders

Orders of the court

The application for extension of time is granted.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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