O'Gorman and Comcare (Compensation)
[2017] AATA 2192
•16 November 2017
O'Gorman and Comcare (Compensation) [2017] AATA 2192 (16 November 2017)
Division:GENERAL DIVISION
File Number: 2017/5626
Re:Kathleen O'Gorman
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Dr L Bygrave, Member
Date:16 November 2017
Place:Sydney
Pursuant to s 29(7) of the Administrative Appeals Tribunal Act1975, the application for an extension of time is granted.
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Dr L Bygrave, Member
CATCHWORDS
PRACTICE AND PROCEDURE – application for extension of time to make application for review – whether it is reasonable in all the circumstances to grant the extension – acceptable explanation for delay – whether applicant ‘rested on her rights’ – prejudice to the respondent and general public – merits of substantive matter – application for extension of time granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 16, 19, 29, 65
CASES
Comcare v A’Hearn [1993] FCA 598; (1993) 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
REASONS FOR DECISION
Dr L Bygrave, Member
16 November 2017
INTERLOCUTORY APPLICATION
On 21 September 2017, Mrs Kathleen O’Gorman lodged an application under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) seeking an extension of time to make an application to review a determination made by Comcare dated 27 June 2017 (reconsideration determination).
Comcare opposes the application for an extension of time.
BACKGROUND
According to a chronology provided by Mrs O’Gorman’s legal representative, Mrs O’Gorman suffered an injury to her right wrist, and subsequently submitted a claim form and medical certificate on 26 May 2015.
On 27 April 2017, Comcare determined Mrs O’Gorman had no present entitlement to compensation under ss 16, 19 and 29 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) for ‘tenosynovitis hand and wrist (right)’. This determination was reconsidered and affirmed by Comcare on 27 June 2017 (reconsideration determination).
Mrs O’Gorman forwarded the reconsideration determination to her legal representative on 26 July 2017. Her legal representative advised that correspondence was sent to Allianz (who the Tribunal understands was acting as a delegate for Comcare) on 26 July 2017 and 9 August 2017 seeking clarification as to whether Comcare accepted or declined liability.
A letter from Mrs O’Gorman’s legal representative dated 13 September 2017 explained that Mrs O’Gorman emailed the reconsideration determination to the email address of his junior secretary rather than a designated group email address. This created an administrative oversight, which was compounded by his extensive workload and his relatively-new junior secretary not understanding the significance of the reconsideration determination. It also meant Mrs O’Gorman’s legal representative was unaware Comcare had made the reconsideration determination and provided it to Mrs O’Gorman until he spoke with Mrs O’Gorman by telephone on 11 September 2017.
On 13 September 2017, Mrs O’Gorman’s legal representative filed her initial application for an extension of time.
Following a request by the Tribunal for a new application to be submitted, Mrs O’Gorman filed a second application for an extension of time in respect of the reviewable decision on 21 September 2017.
The application for an extension of time was heard by the Tribunal in Sydney on 2 November 2017. The parties’ legal representatives attended the hearing by telephone and provided oral submissions.
PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION
Ordinarily, in accordance with s 29(2)(a) of the AAT Act, an application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the decision is given to the applicant. Section 65(4) of the SRC Act modifies s 29(2)(a) of the AAT Act, such that an application for review must be lodged within 60 days.
Pursuant to s 29(7) of the AAT Act, the Tribunal may extend the time for lodging an application if it ‘is satisfied that it is reasonable in all the circumstances to do so’ [emphasis added].
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.
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.
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.
REASONS FOR DELAY
The application for an extension of time on 21 September 2017 was 28 days after the 60 days limit prescribed by s 65(4) of the SRC Act.
A letter from Mrs O’Gorman’s legal representative, dated 13 September 2017, accompanied the extension of time application dated 21 September 2017 and provided reasons for the application of extension of time to file an application for review. These reasons have been briefly summarised in paragraph 6 above.
At the Tribunal hearing, Mrs O’Gorman’s legal representative further acknowledged and accepted responsibility for the administrative oversight. He also noted his firm had sought to follow up with Comcare, sending correspondence to Allianz on 26 July 2017 and 9 August 2017 requesting clarification about whether or not Comcare accepted liability for Mrs O’Gorman’s injury. He further advised that, once made aware of the administrative error on 11 September 2017, he filed an extension of time application with the Tribunal on 13 September 2017 and subsequently filed a second application with all required documentation on 23 September 2017.
After considering the evidence before me, I find that the reasons for the delay in lodging a review of the decision provide an acceptable explanation of the delay. I am satisfied that Mrs O’Gorman did not ‘rest on her rights’ in seeking a review of the decision.
While this principle weighs for the applicant, it is not the only factor I need to consider in determining whether to grant the extension of time.
PREJUDICE TO THE RESPONDENT AND GENERAL PUBLIC
It is in the interests of both Comcare and the general public that prescribed time limits are adhered to so as to ensure there is a predictable and orderly conclusion to appeal processes. I also accept that Comcare would have expectations about the finality of the decision-making process in relation to Mrs O’Gorman’s application.
However, given the delay is only 28 days after the prescribed time frame, I am satisfied that there would be limited prejudice to Comcare if the extension of time is granted. This factor neither weighs against or for the applicant.
MERITS OF SUBSTANTIVE MATTER
The Tribunal must consider the merits of the substantive application in deciding whether to grant the extension of time.
There is limited information before the Tribunal in relation to the merits of the application; however, I have regard to information set out in the reconsideration determination dated 27 June 2017 and the parties’ oral submissions.
Comcare’s legal representative submitted at the Tribunal hearing that medical information contained in the reconsideration determination indicated the matter had limited prospects of success. In particular, he quoted the following:
·Dr Mathew Paul’s (consultant occupational physician) examination of Mrs O’Gorman on 16 May 2016 and his diagnosis of ‘chronic right-sided wrist and hand pain secondary to extensive tendinitis and possible carpal tunnel disease requiring further assessment and investigation’;
·Dr David Rail (neurologist) reported on 8 November 2016 that a ‘nerve conduction study…showed normal conductivity of the median and ulnar nerves bilaterally. There was no evidence of carpal tunnel syndrome’.
I am satisfied that this small selection of quotes from extensive medical evidence – none of which is before the Tribunal – does not indicate the substantive matter has no merits. I also note it is open to Mrs O’Gorman to seek further medical advice and/or reports, which may affect the merits of the substantive matter.
In considering all of the relevant circumstances and weighing the limited available evidence, I am of the view that Mrs O’Gorman’s substantive matter may have merit. This weighs for the extension of time being granted.
CONCLUSION
Taking into account all of the information before me, including the explanation of the delay and the merits of the substantial application, I am satisfied that it is reasonable in the circumstances to grant the extension of time.
DECISION
The application for an extension of time is granted.
I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member
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Associate
Dated: 16 November 2017
Date(s) of hearing: 2 November 2017 Solicitors for the Applicant: Mr M Hyland, LHD Lawyers Solicitors for the Respondent: Mr R Moss, Comcare
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