PKMW and Wilson Security Pty Ltd (Compensation)

[2021] AATA 1704

PKMW and Wilson Security Pty Ltd (Compensation) [2021] AATA 1704 (11 June 2021)

Division:GENERAL DIVISION

File Number:          2020/6195

Re:PKMW  

APPLICANT

AndWilson Security Pty Ltd

RESPONDENT

DECISION

Tribunal:Deputy President Boyle

Date:11 June 2021  

Place:Perth

Pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), the time for the Applicant to make an application for the review of the Respondent’s decision dated 13 March 2018 is extended to 9 October 2020.

...[SGD].....................................................................

Deputy President Boyle

CATCHWORDS

PRACTICE AND PROCEDURE – application to extend the time for the making of an application to the Tribunal for a review of a decision – reconsideration affirming a decision that the Respondent was not liable to pay compensation under ss 14, 16 and 19 of the SRC Act – delay of over two years in filing the application for an extension of time – application of Hunter Valley considerations – Tribunal is satisfied that it is reasonable in all the circumstances to grant an extension of time – application granted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – ss 29(2), 29(7)

Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 5A(1), 14, 16, 19, 36, 65(4)

CASES

Brown v Federal Commissioner of Taxation [1999] FCA 563

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Comcare v A’Hearn [1993] FCA 498

DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377

Dix v Crimes Compensation Tribunal [1993] 1 VR 297

Doyle v Chief of Staff (1982) 42 ALR 283

Federal Commissioner of Taxation v Brown [1999] FCA 1198

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344

Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121

Lucic v Nolan (1982) 45 ALR 411

Wedesweiller v Cole (1983) 47 ALR 528

Zizza v Federal Commissioner of Taxation [1999] FCA 848

SECONDARY MATERIALS

Dennis Pearce, Administrative Appeals Tribunal (LexisNexis, 5^th ed, 2020)

REASONS FOR DECISION

Deputy President Boyle

11 June 2021

APPLICATION

1. The Applicant has applied for an extension of time to make an application to the Tribunal for the review of a decision of the Respondent made on 13 March 2018. The decision of which review is sought was a decision on reconsideration affirming a decision that the Respondent is not liable to pay compensation under ss 14, 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for the claimed conditions of “stress, low mood, not her self [sic], crying, mental health’ sustained on deemed date of injury 6 December 2017”.[1]

   [1] T28.

   BACKGROUND

2. It is not disputed that the Applicant was employed by the Respondent from June 2012 until June 2018 when the Applicant tendered her resignation.[2]

   [2] T30.

3. On 28 November 2017 the Applicant was undertaking access control duties on the causeway to HMAS Stirling Naval Base south of Perth. Access to the naval base, which is on an island connected to the mainland by a causeway, is restricted. The Applicant and a colleague were stationed on the causeway at a checkpoint with a boom gate. Her colleague was controlling the outgoing traffic and the Applicant was controlling the inbound traffic. She says that a car stopped at the checkpoint. There were a number of people of “most likely Chinese origin” whose command of English was not good.[3] The Applicant tried to tell them that they could not enter the base and instructed them to turn around. However, there was insufficient room on the causeway for the car to turn around, so she lifted to boom gate to allow the car to do so. When she lifted the boom gate, however, the car kept driving and she had to call ahead to the next checkpoint to warn them of the approaching car. The car was stopped at the next checkpoint and one of the occupants was found to have a camera.

   [3] T31/111, Report of Dr Brendan Jansen dated 6 October 2020.

4. The Applicant was counselled later that day for breaching security by allowing the car to enter. She says that she was subsequently asked to sign a statement acknowledging that she had allowed persons onto the island and that she had provided them with information about alternative ways of landing on the island. She says that over the following weeks there were further meetings with various superiors which caused her stress and anxiety.

5. On 30 November 2017 the Applicant submitted a medical certificate certifying total incapacity for work until 7 December 2017. Further progress certificates of incapacity were issued noting the symptoms as being “stressed, low mood, not herself and crying”, and a diagnosis of stress.[4] The Applicant was prescribed various drugs for her conditions.

   [4] T13.

6. On 9 January 2018 the Applicant submitted a claim under the SRC Act claiming injury of “stress, low mood, not her self [sic], crying, mental health”.[5] The Applicant identified 12 December 2017 as the date on which she first sought treatment for her claimed conditions. The Applicant denied any prior similar symptom, injury or illness (work related or otherwise), and denied having received any prior medical treatment for a similar injury or illness. She further denied any prior claim for a similar injury or illness.

   [5] T17.

7. On 18 January 2018 the Applicant was referred to a rehabilitation consultant to undertake a rehabilitation assessment pursuant to s 36 of the SRC Act. That assessment was scheduled to occur on 25 January 2018, however, on 23 January 2018 the Applicant advised that she would not attend the assessment as she was on annual leave and, because her claim had not been determined, she did not understand why she had to undergo another assessment at her own expense.

8. On 23 January 2018 the Applicant was issued with a formal written warning for breach of policy/protocols on 28 November 2017 in permitting an unauthorised vehicle to enter into a restricted zone and also providing sensitive information to unknown persons.

9. On 5 February 2018 QBE, the Respondent’s insurer, on behalf of the Respondent, advised the Applicant of its decision to deny liability[6] and set out the Applicant’s right to request a reconsideration. The main basis of the denial was that liability did not exist by reason of the injury having arisen out of reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment.

   [6] T24.

10. On 6 March 2018 the Applicant’s legal representatives at the time, LHD Lawyers, requested reconsideration of the decision to refuse liability.

11. On 12 March 2018 LHD advised the Applicant “[a]s per our conversation, we regret to inform you that we are not prepared to further pursue this case on your behalf”.

12. On 13 March 2018 the Respondent made the reviewable decision affirming the decision to deny liability. The notice of the decision sent to the Applicant’s lawyers on 13 March 2018 informed the Applicant that she had the right to apply to the Tribunal for review of decision and advised the Applicant that she had 60 days in which to do so.

13. On 4 May 2018 the Applicant rang QBE to find out the status of her request for reconsideration. The Applicant was advised that the reconsideration delegate issued the decision on 13 March 2018 and that it had been sent to the Applicant care of her legal representatives.

14. The Applicant tendered her resignation on 6 June 2018 stating that the basis for her doing so was her “on going ill health and medical conditions caused by incidents that occurred … [at work]”.

15. The Applicant lodged the application for review in the Tribunal on 9 October 2020.

    THE HEARING

16. The application for an extension of time was heard on 19 April 2021. The Applicant was represented by Ms R Hinchcliffe of Soul Legal and the Respondent was represented by Mr R Seit instructed by McInnes Wilson Lawyers. Both parties filed written submissions.

    THE LAW

17. Section 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides that an application for review must generally be lodged within 28 days of the person receiving notice of the decision.

18. Section 65(4) of the SRC Act extends the period of 28 days in s 29(2) of the AAT Act to 60 days.

19. 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.

20. The case most often cited as setting out the relevant considerations for an extension of time to make an application for review is Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment[7] (Hunter Valley). As noted by Dennis Pearce in Administrative Appeals Tribunal (LexisNexis, 5^th ed, 2020) at [6.19]:

    The factors enunciated by Wilcox J in [Hunter Valley] form the basis for consideration of most applications and … will almost certainly continue to be the starting point of most decisions.

    [7] (1984) 3 FCR 344.

21. The Tribunal considers the principles set out in Hunter Valley and the cases that have followed that approach to be applicable to this matter (see also: Brown v Federal Commissioner of Taxation[8] (Brown)). The Tribunal notes that both the Applicant and the Respondent referred to Hunter Valley and the considerations set out therein in their respective submissions.

    [8] [1999] FCA 563.

22. In Hunter Valley, Wilcox J at [348] pointed out that “[t]he prescribed period of twenty-eight days is not to be ignored... Indeed, it is the prima facie rule that proceedings commenced outside the period will not be entertained...”. In Brown, Hill J stated, at [59], that in the taxation context, the Tribunal should be “... guided by what the justice of the case requires”. In determining the question of whether an extension of time should be granted, the Tribunal should weigh together all relevant factors.[9]

    [9] Zizza v Federal Commissioner of Taxation [1999] FCA 848 (per Katz J).

23. There is a thorough and helpful review of the authorities by Deputy President Forgie in DHLD and Executive Director, Social Security Appeals Tribunal[10] (DHLD) at paras [11] and [37] to [49].

    [10] [2010] AATA 377.

24. The authorities establish that a range of considerations must be taken into account when exercising the discretion to extend time for an application to be made. No one consideration has precedence or is, in itself, determinative. The factors include:

    (a)It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained.[11]

    (b)It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is, however, to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition.[12]

    (c)Action taken by the applicant other than by making an application to the court (Tribunal) is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised.[13]

    (d)Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension.[14]

    (e)The mere absence of prejudice is not enough to justify the grant of an extension.[15]

    (f)The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.[16]

    (g)Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s (or tribunal’s) discretion.[17]

    [11] Lucic v Nolan (1982) 45 ALR 411 at 416 (Lucic).

    [12] Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Crimes Compensation Tribunal [1993] VicRp 21; [1993] 1 VR 297 at 302.

    [13] Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283 at 287 (Doyle).

    [14] Doyle at 287 and Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541.

    [15] Lucic at 416.

    [16] Lucic at 417.

    [17] Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528.

25. In paras [40] to [44] of the decision in DHLD, Deputy President Forgie sets out a more detailed review of the cases dealing with the relevance of the apparent strength of the substantive claim. The Deputy President cites the comment made by the Full Court in Federal Commissioner of Taxation v Brown[18] at [28]:

    We wish to make it clear, however, that the AAT is not precluded from taking into account the apparent strength or weakness of taxpayer’s case, when determining whether an extension of time should be granted, if the overall circumstances are such that the apparent strength or weakness of that case is properly to be regarded as a material consideration.

    CONSIDERATION

    [18] [1999] FCA 1198.

    The delay

26. The delay in the Applicant lodging her application for review is significant. Her lawyers were advised of the Respondent’s reviewable decision on 13 March 2018 meaning that the application for review was to be lodged by on or around 12 May 2018. The Application was lodged on 9 October 2020, that is over two years and four months late.

27. The Applicant filed two affidavits in support of the application for an extension of time. The first was an affidavit sworn by the Applicant on 26 November 2020 and the second was an affidavit sworn by the Applicant’s lawyer, Ms Hinchcliffe, on 15 February 2021. Ms Hinchcliffe’s affidavit advised that:

    (a)She was first contacted by the Applicant on 14 September 2020 and Soul Legal was retained by the Applicant on 15 September 2020.

    (b)Soul Legal arranged for the Applicant to be seen by Dr Brendan Jansen, psychiatrist, who prepared a report.

    (c)When Soul Legal received Dr Jansen’s report on 6 October 2020 they prepared the application and the application for extension of time.

    (d)Soul Legal corresponded with DHL Legal to get a copy of their file. It was not until Soul Legal received the T documents in these proceedings that they were able to identify DHL as being the firm which had previously acted for the Applicant.

    (e)Soul Legal acted expeditiously to prepare the application and the application for the extension of time.

28. The Applicant’s affidavit advised that:

    (a)The circumstances of her injury are set out in the report of Dr Jansen dated 6 October 2020.

    (b)She cannot recall making a workers’ compensation claim.

    (c)Having now been provided with the T documents she thinks that she was assisted in making the workers’ compensation claim by representatives of the Respondent and her daughter.

    (d)She cannot recall instructing solicitors to represent her in her initial claim.

    (e)She cannot recall the conversation with the insurer on 4 May 2018 (see [13] above).

    (f)She cannot remember receiving the letter from LHD in March 2018 enclosing the Respondent’s reviewable decision which affirmed the decision to refuse liability.

    (g)She cannot remember, but based on her review of the T documents, she believes that she received a copy of the 13 March 2018 decision sometime after she spoke to QBE on 4 May 2018.

    (h)Her health has been in steady decline since her work injury. In February 2018 she suffered from “stroke like symptoms”.

    (i)She was referred by her general practitioner for psychological counselling in February 2018. Prior to that referral she had attended some counselling arranged by the Respondent’s employee assistance program.

    (j)She attended some eight sessions, however, these brought up issues from her childhood which further affected her mental state.

    (k)Mental health assessment reports prepared during that period report the Applicant to be forgetful and easily confused.

    (l)During this period she also received protection payments and made application for “Total and Permanent Disablement” through her superannuation which was accepted and paid.

    (m)Until she received advice from her current lawyers, the Applicant did not believe that she had any rights as she had approached “other lawyers in the past only to be told that they did not deal with Comcare claims”. She cannot remember who these other lawyers were or when and how many she approached.

29. The Applicant gave evidence at the hearing which was generally consistent with the claims in her affidavit.

30. The Respondent submits that:

    (a)The Applicant was aware that her claim was initially rejected. The Applicant’s general practitioner’s clinical note dated 9 February 2018 records her as having told him of that being the case. The Applicant was able to instruct solicitors to seek a reconsideration of that decision to deny liability.

    (b)Further the Applicant was aware of her rights when she rang QBE in May 2018 and was advised that the Respondent had, on reconsideration, affirmed the rejection of her claim.

    (c)The facts indicate that in May 2018 the Applicant was aware of the decision that had been made and was aware of her rights.

    (d)During this period the Applicant was able to make applications to Centrelink and to apply for release of money from her superannuation fund at a time when she was refusing to undertake rehabilitation through the Respondent.

    (e)Further, the Applicant had the wherewithal to consider her employment relationships in June 2018 and write to the Respondent tendering her resignation for medical reasons and requested an email for Centrelink with a separation certificate and requesting that outstanding monies be sent to her.

    (f)These facts indicate that the Applicant had mental capacity at that time to manage her financial and legal affairs.

    (g)No proper explanation has been provided by the Applicant as to why it was not until September 2020 that she approached her current lawyers.

31. The Applicant’s submissions on the delay are to the following effect:

    (a)The delay is not substantial. Given the injuries suffered by the Applicant the delay is acceptable.

    (b)The Applicant was not represented at the time of the decision on 13 March 2018, LHD Lawyers having ceased to act for her the day before.

    (c)There is no evidence that LHD Lawyers sent the redetermination of 13 March 2018 to the Applicant.

    (d)The Applicant approached other law firms to represent her, however, they told her that they did not handle Comcare claims.

32. Contrary to the Applicant’s submission, the delay of over two years and four months in making the application is substantial when considered in light of the fact that the statutory timeframe for such an application is 60 days. The explanation for the delay is insufficient. The Tribunal finds that the Applicant was aware of the decision, at the latest, in May 2018 when she spoke to QBE.

33. While the Applicant’s affidavit and her evidence at the hearing were both very vague as to the efforts that she made to retain legal representation, her statement in para 24 of her affidavit (reflected in her evidence at the hearing) that she did not believe that she had any rights in relation to this claim is somewhat at odds with her evidence that she had contacted a number of law firms to represent her (she cannot remember how many or their names). That would indicate that she did understand that she had rights.

34. While there was considerable evidence, both from Ms Hinchcliffe’s affidavit and from the Applicant’s affidavit, as to the action taken by the Applicant’s current lawyers once they were approached to act for the Applicant in September 2020, the concern for the Tribunal is the lack of any relevant action by the Applicant between May 2018, when the Tribunal finds that, at the latest, the Applicant was made aware of the decision, and September 2020 when she retained her current lawyers. In making that comment, the Tribunal is mindful of the Applicant’s apparent mental condition during that period based on the notes of medical examinations and reports attached to the Applicant’s affidavit. Those contemporaneous reports and notes refer to the Applicant suffering from depression, anxiety and a number of other disorders, however, these do not establish that the Applicant’s mental condition was such that she would not have understood the need for her to make an application for review. In that regard, there is no explanation as to what changed in September 2020 which caused the Applicant to only then appreciate that she had the right to make an application for review to the Tribunal which caused her to approach her current lawyers. The Tribunal notes that a mental health assessment dated 8 October 2018[19] states that there were “[n]il formal thought disorder evident, and nil perception abnormalities noted”.

    [19] Attachment 6 to the Applicant’s affidavit.

1. The Tribunal also notes that Dr Jansen in his report of 6 October 2020,[20] while not directly addressing the issue of the Applicant’s mental state since May 2018, noted that:

   She presented with impaired concentration and attention at times, but when redirected and given time her memory function was assessed to be intact.

   [20] T31.

2. The Tribunal does not accept the Applicant’s submission in para 10 of her written submissions that:

   It is not clear if the Applicant was aware of her rights in regard to the claim at the time that she received it, which would have been some time after 4 May 2018. Given the evidence of the Applicant that she was unable to obtain assistance until her contact with her current representatives, it is likely that she was unaware of her rights until the current engagement, which occurred on 15 September 2020.

3. The obvious flaw in that argument is that the Applicant’s evidence was that she had, prior to approaching her current lawyers, approached a number of lawyers to represent her. Although she was not able to identify when she did so, it is indicative of her being aware that she had legal rights before she approached her current lawyers in September 2020. As the Respondent points out, as of June 2018 the Applicant had enough awareness of her legal rights to tender her resignation, to seek a separation certificate for Centrelink, to apply for protection payments and to make an application for Total and Permanent Disablement through her superannuation fund which was accepted and paid (see [28(l)] above).

4. The Tribunal finds that the delay is substantial and that no adequate explanation for the delay of over two years and four months has been provided by the Applicant.

   Prejudice

5. In relation to the prejudice that would be suffered if the Applicant were granted the extension of time, the Respondent submitted:

   (a)One of the bases upon which the Respondent resists the Applicant’s claim is reasonable administrative action (s 5A(1); definition of injury). A hearing of the application will be three and a half years after the events giving rise to the claim so “[i]ssues have arisen in respect of relevant employees no longer being employed by the Respondent”. Not all documents relevant to the matter are able to be located, for example, CCTV footage of the incidents which give rise to the claim are no longer available.

   (b)Prima facie there is an argument for prejudice on the sole ground of the relevant events having happened some three years ago.

   (c)The Respondent cites the High Court’s comments in Brisbane South Regional Health Authority v Taylor[21] (Brisbane South Regional Health Authority). 

   (d)The Respondent is prejudiced because it has lost the ability to assess the Applicant’s medical condition at a time more contemporaneous to the injury and has lost the opportunity of providing suitable employment so as to potentially minimise claim cost.

   [21] [1996] HCA 25; (1996) 186 CLR 541.

6. On this issue the Applicant submitted that:

   (a)the Respondent has contemporaneous documents, so it does not have to rely on memories of those involved; and

   (b)“[t]he Applicant accepts that the Respondent is prejudiced to some extent in that they held the belief that, given that an application to the AAT had not been made, that the claim had come to an end. However, it was always the intention of the Applicant to make application to the AAT but she was thwarted in these efforts as she was unable to engage suitable legal advice, or any legal advice, until September 2020”.

7. The Tribunal has difficulty accepting the contention in [40(b)] above which appears in para 17 of the Applicant’s submissions. It could not be said that a person’s ability to make an application to the Tribunal could be “thwarted” by an inability “to engage suitable legal advice”. There is no requirement that a person be legally represented in the Tribunal and a significant proportion of applicants that appear in the Tribunal are self-represented. The assertion is also somewhat at odds with the Applicant’s argument that she was not aware of her legal rights until she retained her current lawyers in September 2020.[22] As noted at [36] above, that latter claim is inconsistent with the Applicant’s apparent efforts prior to September 2020 to retain other lawyers.

   [22] Applicant’s submissions, para 10.

8. The Tribunal accepts that the Respondent’s ability to defend against the Applicant’s claim will have been prejudiced by the delay in the Applicant seeking review. In particular, the Tribunal sees the Respondent being prejudiced by an inability to obtain expert medical evidence at a point closer in time to the claimed injury. It does appear from the medical notes and reports attached the Applicant’s affidavit, that the Applicant may now be suffering from some degenerative change or other non-work related ailments. In a report prepared by a Department of Health community mental health service dated 3 December 2018 the comment is made that:

   It has not been entirely clear if her cognitive impairment can be explained by MDD [major depressive disorder] or it signifies organic pathology like early vascular dementia. She has a history of a stroke.[23]

   [23] Attachment 6 to the Applicant’s affidavit.

9. The Tribunal accepts that the Respondent is prejudiced in its ability to defend against the Applicant’s claim by reason of the Applicant’s substantial delay.

   The merits of the substantial application

10. The Applicant submitted that the evidence of Dr Jansen and the medical reports in attachment 6 to the Applicant’s affidavit, establish that the Applicant is suffering from a psychological injury which has occurred in the context of her employment.

11. There does seem to be some confusion on the Applicant’s part as to whether the claim is for an injury simpliciter or a disease under the SRC Act and whether the incident upon which the claim is based occurred on 28 November 2017, the date that the car went through the boom gate, or at a later date as a result of the administrative action taken by the Respondent. The Applicant notes Dr Jansen’s comment that the condition from which the Applicant suffers meets the definition of injury rather than a disease under the SRC Act.[24]

    [24] T3/116.

12. The Respondent contends that:

    (a)The evidence shows that the Applicant “wilfully made statements that were false in respect of her claim” by asserting that she had not suffered from any similar condition prior to her injury/disease. The medical records summonsed by the Respondent and included in the T documents indicate that this is not the case.[25]

    (b)Dr Jansen’s report was based on an incomplete medical history being provided which did not include reference to the Applicant’s pre-existing mental health issues.

    (c)If the claimed condition is in the nature of an ailment, or an aggravation of an ailment, consideration needs to be given as to whether the employment with the Respondent contributed to a significant degree. This needs to take into account any employment and non-employment factors, in this case the prior history suffered by the Applicant, as well as subsequent events in her personal life and other problems, all of which would need to be taken into account in looking at this issue of significant contribution.

    (d)Reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment would also need to be considered if it were found that there was an injury sustained by the Applicant as defined in the SRC Act.

    (e)The Applicant’s claim on the merits of having sustained a compensable injury are poor on the material filed and served in the matter.

    [25] T6, incapacity certificate for anxiety dated June 2016.

13. In Kuljic v Secretary, Department of Social Security[26] von Doussa J relevantly stated, at 122, that:

    One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal. If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal.

    [26] (1994) 33 ALD 121.

14. The Tribunal is not required to undertake a substantive review of the merits of the application but rather should assess whether the Applicant has an arguable case. In Brown Hill J at [56] stated:

    … For present purposes I am prepared to accept the view of von Doussa J in Windshuttle that an applicant should show that he or she has an arguable case. No doubt if the objection on the face of it is one which is frivolous or bound to fail as a matter of law it would be a futility to permit an extension of time to enable it to be considered. But this points to quite a low threshold. What is involved is whether the objection on its face discloses a case which is arguable, not whether having regard to other matters, including evidence which may not even be known to the taxpayer at the time of making the application, the case is one that the taxpayer will or will probably lose.

15. While there are certain aspects of the Applicant’s claim that will require better definition, more detailed legal submissions and, obviously, more evidence, it could not be said that the Applicant’s claim is one that is, on its face, frivolous, bound to fail or would be futile. In his report, Dr Jansen expresses his clear opinion that the Applicant does suffer from a work related injury.[27] As Hill J noted, the threshold is a low one and in the present case the Tribunal accepts that the Applicant’s case, as a minimum, is arguable and meets that threshold.

    [27] T31, 116.

    Fairness between the parties

16. The Applicant submits that she will suffer greater prejudice if the application for an extension of time is not granted than the Respondent would suffer if one were granted. There is no suggestion that another party would be adversely affected if an extension were granted.

17. The Respondent submits that to grant an extension of time would undermine the concept of getting finality in decision-making and give the Applicant special benefits that perhaps other people did not enjoy. It would seem unfair as against other applicants whose extension of time applications for considerably lesser periods have failed. Other persons in a similar position do manage to issue their applications within the sixty-day period.

18. The Respondent also says that it is unfair on other employees/former employees who may need to give evidence.

19. The Respondent also points to a need for there to be finality in the decision-making process. It submits that the Applicant is seeking to open an issue involving past incapacity going back, at this stage, to a period in excess of three years with associated medical expenses and like. No provisioning has been made by the Respondent. Additionally, the Applicant in resigning her employment has turned her back on potential suitable employment with the Respondent.

20. The Respondent also submits that legislated time and limitation periods must be regarded as the general rule citing Brisbane South Regional Health Authority and notes that applications under the SRC Act already have an extension of the normal 28 days allowed for an application to the Tribunal to 60 days.

    CONCLUSION

21. In this case the Tribunal considers that the most important consideration is the merit of the Applicant’s claim. While the consideration of the length and the explanation for the delay weigh against the exercise of the discretion to grant an extension of time, as do the considerations of prejudice to the Respondent and the need for certainty of decision making processes, it would not be reasonable, in all the circumstances, to deny the Applicant the opportunity to agitate her claim.

    DECISION

22. Pursuant to s 29(7) of the AAT Act, the time for the Applicant to make an application for the review of the Respondent’s decision dated 13 March 2018 is extended to 9 October 2020.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...[SGD].....................................................................

Associate

Dated: 11 June 2021

Date of hearing:	19 April 2021
Counsel for the Applicant:	Ms R Hinchcliffe
Solicitors for the Applicant:	Soul Legal
Counsel for the Respondent:	Mr R Seit
Solicitors for the Respondent:	McInnes Wilson Lawyers