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

1. 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

2. 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.

3. 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.

4. 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

5. 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.

6. 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.

7. 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

8. 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.

9. 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

10. 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.

11. 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.

12. 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)

13. This is relevant to the factual situation put to me by the applicant in the present matter. Ms Phillips maintains that, whatever the position of the employer with respect to the purpose which originally took her onto the street outside her workplace, that purpose was superseded by the events that took place on the street regarding the injured man. The evidence put to me is that the applicant’s supervisor, on coming across the injured man, directed the applicant to approach a nearby shop to obtain water and a cloth in order to administer first aid to the injured man. If that evidence can be sustained at a hearing, it has the potential to persuade the Tribunal that the applicant was indeed acting with the encouragement or inducement of her employer when she was injured.

14. Mr Ghirardello’s statement is not directly consistent with this version of events, but nor is it inconsistent. I note that Mr Ghirardello appears to be supportive of the applicant’s claim; I infer from that that he may give evidence that there was some encouragement on his part for her to do what she did which led to her injuring herself. The potential for his evidence to be supportive of the applicant’s claim must be considered; this militates in favour of the Tribunal providing an opportunity to the applicant to substantiate her case that she was directed to undertake the activity in question.

15. I now turn to the length of, and reasons for, the delay in the applicant bringing her application. I am considerably troubled by the length of time it has taken to bring this matter to the Tribunal. Fourteen months is a substantial delay, one which cries out for some form of explanation. Personally, while sitting on this bench, I have never granted an extension of time longer than 12 months.

16. Her evidence as to the reasons for delay was:

    ·being disheartened and feeling that she had nowhere to turn when her claim was rejected;

    ·concerns about the possible abolition of her work unit, with the fear that a claim for injury while still employed by ACT Health might hamper her chances of redeployment;

    ·not being in a financial position to pursue legal advice.

17. I am doubtful as to whether the fact that Ms Phillips was waiting for a voluntary redundancy payment before pursuing her compensation claim is, objectively speaking, a valid reason for failure to pursue her rights. Of course, at the point where her claim was rejected on reconsideration she had a right under the law to seek review by this Tribunal, a matter not affected by her employment status at ACT Health.

18. With respect to Ms Phillips’ evidence regarding the cost of launching a claim in the Tribunal, I don’t accept that she was unaware that she could approach a lawyer to represent her on a no win, no fee basis – in this day and age, everyone would be aware of that possibility – but it is more than possible that a person might feel inhibited in pursuing a workers compensation claim by events going on in their workplace which may cause them to doubt the continuation of their employment or position.

19. Fear about the potential loss of employment if a claim were pursued may or may not be well grounded in fact, but in the present circumstances I regard this as an acceptable explanation of the delay.

20. Turning now to the question of whether Ms Phillips kept her interest in pursuing compensation in front of her employer, I was informed that there is an email – though it was not produced – from the applicant to (I assume) the Deputy Director-General of Health in May this year seeking advice on the pursuit of her claim.

21. I also note her evidence that, after her claim was rejected on reconsideration, she continued to work at ACT Health with her foot evidently in considerable pain, wearing a moonboot, administering ice to her foot while at her desk and taking anti-inflammatories. It is hard to imagine that her employer – or at least her immediate co-workers and supervisors – could have been unaware that she continued to suffer distress from an injury which was attributable to the incident on the street outside the workplace.

22. In light of the email in May and the self-evident ongoing problem with her foot, I think it would have been foolish for ACT Health to assume that Ms Phillips had no further interest in a claim for compensation.

23. On the question of prejudice to the respondent, Mr Bilboe (for Comcare) is right to say that no specific disadvantage needs to be demonstrated by the respondent in order for it to be able to say that public policy is best served by matters coming forward within the time specified by Parliament for claims to be lodged, or soon thereafter. It should be able to rely on the principle that an application not brought in a timely fashion should not be entertained. Nonetheless, I take into account in the present instance that no actual prejudice to Comcare has been advanced. Taking into account the apparent thrust of both Ms Phillips’ and Mr Ghirardello’s evidence, I consider that there would always have been an evidentiary challenge, no matter when the application for review had been lodged, for Comcare to demonstrate a different factual situation to that alleged by Ms Phillips.

24. In all the circumstances, I am prepared on this occasion – albeit reluctantly because of the considerable delay – to grant the extension of time. The application for review was actually lodged on 15 November 2016, and accordingly I grant an extension of time pursuant to s 29(7) of the AAT Act for lodgement to that day.

I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries

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

Associate

Dated 22 December 2016

Date(s) of hearing	30 November 2016
Counsel for the Applicant	Karl Pattenden
Solicitors for the Applicant	Walter Hawkins
Solicitors for the Respondent	Christopher Bilboe