O'Gorman and Comcare (Compensation)

Case [2017] AATA 2192

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.

...............[sgd].........................................................

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

  1. 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).

  2. Comcare opposes the application for an extension of time.

    BACKGROUND

  3. 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.

  4. 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).

  5. 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.

  6. 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.

  7. On 13 September 2017, Mrs O’Gorman’s legal representative filed her initial application for an extension of time.

  8. Following a request by the Tribunal for a new application to be submitted, Mrs O’Gorman filed a second application for an extension of…

Continue reading O'Gorman and Comcare (Compensation)

Sign in free to access the full text

Details
AGLC
O'Gorman and Comcare (Compensation) [2017] AATA 2192
Case
[2017] AATA 2192
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mrs O’Gorman for an extension of time to lodge an application for review of a decision made by Comcare. Comcare had determined that Mrs O’Gorman had no present entitlement to compensation for tenosynovitis of her right hand and wrist. This decision was reconsidered and affirmed by Comcare on 27 June 2017. The application for an extension of time was heard by Dr L Bygrave, Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether it was reasonable in all the circumstances to grant Mrs O’Gorman an extension of time to lodge her application for review, pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth). This required the Tribunal to consider established principles, including whether Mrs O’Gorman had provided an acceptable explanation for the delay, whether she had "rested on her rights," any prejudice to Comcare, and the merits of the substantive application.

The Tribunal considered the explanation for the delay, which involved an administrative oversight by Mrs O’Gorman’s legal representative due to an email being sent to a junior secretary rather than a designated group email address, compounded by the representative's workload and the junior secretary's inexperience. The Tribunal noted that Mrs O’Gorman’s legal representative had actively sought clarification from Comcare’s delegate shortly after receiving the reconsideration determination. Taking into account the explanation for the delay and the merits of the substantive application, the Member was satisfied that it was reasonable in the circumstances to grant the extension.

The Tribunal ordered that the application for an extension of time be granted.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.