Phillips and Comcare (Compensation) - [2016] AATA 1063

Phillips and Comcare (Compensation) [2016] AATA 1063 (22 December 2016)

Division

GENERAL DIVISION

File Number(s)

2016/5772

Re

Linda Phillips

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Deputy President Gary Humphries

Date 22 December 2016

Place Canberra
Extension of time granted.
………………[sgd]……………………..
Deputy President Gary Humphries
Catchwords
PRACTICE AND PROCEDURE – extension of time application under section 29(7) – application 14 months out of time – application has merit – where applicant provides acceptable explanation for delay – where no prejudice to other party – extension of time granted
Legislation
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988
Cases
Comcare v PVYW [2013] HCA 41
Duong v Australian Postal Corporation [2005] FCA 991
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Hunter Valley Developments v Cohen (1984) 3 FCR 344
REASONS FOR DECISION
Deputy President Gary Humphries
22 December 2016

This is an application for an extension of time to lodge an application for review by the Tribunal, pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
Background
Ms Linda Phillips was an employee of ACT Health when, on 17 February 2015, she lodged a claim for workers compensation in respect of an Achilles bursitis/tendonitis condition arising, she claimed, from her employment. Her claim was disallowed under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), and she sought reconsideration. On 29 June 2015 an officer of Comcare affirmed the earlier decision in a letter sent to Ms Phillips bearing that date. In addition, an email was sent to her by a senior case manager in the ACT Government on 29 July 2015 which, inter alia, reminded her that she had the option of filing an application for review with the AAT.
Ms Phillips lodged an application for an extension of time for making an application for Tribunal review of Comcare’s decision on 27 October 2016, after she had ceased to be employed by ACT Health. This was approximately 14 months outside the period prescribed for lodging of an application in relation to a reviewable decision pursuant to s 65(4) of the SRC Act.
The Tribunal conducted a hearing into the application for an extension of time, during which it took evidence from Ms Phillips.
The facts alleged by Ms Phillips
The reviewable decision of 29 June 2015 refers to an incident on 25 November 2014 in which Ms Phillips left her workplace in Canberra City and injured her ankle when rushing to assist an elderly person who had fallen in the street. The decision determined that her injury was not connected with her employment, noting that her employer was aware that staff members of ACT Health left the office to purchase coffee from time to time, but added I consider that just because your supervisor was aware of this activity falls short of the necessary inducement or encouragement of the activities you are undertaking at the time of your injury.
In her evidence 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.

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Details

Case: [2016] AATA 1063
Decision Date: 22 December 2016

CaseChat Overview and Summary

This matter concerned an application by Ms Phillips for an extension of time to seek a review of a decision made by Comcare. The original decision, dated 29 June 2015, determined that an ankle injury sustained by Ms Phillips on 25 November 2014 was not connected with her employment. The Tribunal, presided over by Deputy President Gary Humphries, considered the application for an extension of time, which was made approximately 14 months out of time.

The primary legal issues before the Tribunal were whether it was reasonable in all the circumstances to grant an extension of time for Ms Phillips to lodge her application for review, and, in considering this, the merits of her substantive claim that her injury was connected with her employment. The Tribunal was required to apply the principles governing extensions of time, as established in cases such as *Hunter Valley Developments v Cohen* and summarised in *Duong v Australian Postal Corporation*, which include assessing the applicant's explanation for the delay, any prejudice to the respondent, and the merits of the underlying application.

In its reasoning, the Tribunal considered the principles from *Hunter Valley Developments* and *Duong*. It noted that an applicant must provide an acceptable explanation for the delay and demonstrate that granting an extension would be fair and equitable. The Tribunal also considered the potential prejudice to Comcare and the merits of Ms Phillips' substantive claim. The Tribunal referred to the High Court's decisions in *Comcare v PVYW* and *Hatzimanolis v ANI Corporation Ltd*, which established that an employer's inducement or encouragement of an employee's activity is a critical factor in establishing a connection between an injury and employment, beyond a mere expectation of the employee's presence in a particular location.

The Tribunal granted the extension of time.

Orders

Orders of the court

Extension of time granted.

Background

Background to the litigation

The Tribunal conducted a hearing into the application for an extension of time, during which it took evidence from Ms Phillips.The facts alleged by Ms Phillips The reviewable decision of 29 June 2015 refers to an incident on 25 November 2014 in which Ms Phillips left her workplace in Canberra City and injured her ankle when rushing to assist an elderly person who had fallen in the street. The decision determined that her injury was not connected with her employment, noting that her employer was aware that staff members of ACT Health left the office to purchase coffee from time to time, but added I consider that just because your supervisor was aware of this activity falls short of the necessary inducement or encouragement of the activities you are undertaking at the time of your injury. In her evidence to the Tribunal, Ms Phillips alleged other details associated with the incident. She said that after leaving her workplace to go to a nearby coffee shop she saw an elderly gentleman trip on an uneven pavement. She went to assist the man, who was bleeding. She was returning to her workplace to find a nurse when she encountered the Executive Director of her branch, Mr Phil Ghirardello, who was leaving the building at that time. Mr Ghirardello accompanied her to the injured man, and then directed her to a nearby shop to obtain water and a cloth. It was, she said, while rushing to that shop for that purpose that she fell and sustained her injury. An undated and unsigned statement from Mr Ghirardello was tendered by counsel for Ms Phillips during the hearing. The statement is broadly in line with the evidence given by Ms Phillips.Principles governing extensions of time Section 29(7) of the AAT Act provides: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 (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so. The matters which the Tribunal should consider in determining what is reasonable in the context of an extension of time application were set out by the Federal Court in Hunter Valley Developments v Cohen (1984) 3 FCR 344. These matters were conveniently summarised by Edmonds J in Duong v Australian Postal Corporation [2005] FCA 991 as follows (at [17]):(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.Consideration

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The matters which the Tribunal should consider in determining what is reasonable in the context of an extension of time application were set out by the Federal Court in Hunter Valley Developments v Cohen (1984) 3 FCR 344. These matters were conveniently summarised by Edmonds J in Duong v Australian Postal Corporation [2005] FCA 991 as follows (at [17]):(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.Consideration I approach this task through the prism of the principles set out in Hunter Valley Developments and subsequently summarised in Duong. I will examine first the merits of the applicant’s substantive claim. A claim devoid of merit is likely to be refused an audience, no matter how short the extension period being sought. The reviewable decision proceeds on the basis that Ms Phillips, in rushing to obtain materials to assist the injured man, was not in her workplace and was not acting with the inducement or encouragement of her employer. In Comcare v PVYW [2013] HCA 41 the High Court affirmed the approach it had taken in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, where it indicated that a mere expectation that an employee would be in a particular location isn’t sufficient to establish that the employee was present at the instruction or direction of the employer. However, a critical factor that the court identified was whether the employer had encouraged or induced an employee to undertake a particular activity. The majority in PVYW said (at [50]):It has earlier been observed that the Hatzimanolis principle, when it is appropriate to be applied, effects a connection between the circumstances in which the employee sustains injury and the employment. The principle may create a temporal element, in the notion of an interval, but it also creates a factual association or connection with the employee's employment. It does so by the fact of the employer's inducement or encouragement. (Reference omitted)

Division	GENERAL DIVISION
File Number(s)	2016/5772
Re	Linda Phillips
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Deputy President Gary Humphries
Date	22 December 2016
Place	Canberra