Re Department of Human Services and Comcare and anor

[2011] AATA 730

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 730

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/3322

GENERAL ADMINISTRATIVE DIVISION		)
Re		DEPARTMENT OF HUMAN SERVICES

Applicant

And COMCARE and NICOLE BARNES

Respondents

DECISION

Tribunal Ms J Toohey, Senior Member

Date20 September 2011

PlaceSydney

Decision For the reasons given orally at the hearing of this matter, the application to extend the time to apply for a review of a decision made by the respondent on 6 June 2011 is refused.

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

Ms J Toohey
  Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time to lodge application for review – whether acceptable explanation for delay – whether prejudice to any party – merits of substantive application – whether reasonable in the circumstances – extension of time refused

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, s 65

Administrative Appeals Tribunal Act 1975, s 29

Acts Interpretation Act 1901, s 29

CASES

Hunter Valley Development Pty Ltd and Cohen [1984] FCA 176

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

Zizza v Federal Commissioner of Taxation [1999] FCA 37

WRITTEN REASONS FOR DECISION

20 October 2011 Ms J Toohey, Senior Member

1.      This matter concerns an application for an extension of time in which to seek review by the Tribunal.  The applicant has asked for written reasons for a decision made at a hearing on 20 September 2011.  These reasons reflect those given orally at the hearing.

Background

2.      On 9 December 2010, Nicole Barnes lodged a claim for compensation for an injury to her left hand and wrist which she said was related to her employment.  At the time, she was employed by Medicare Australia.  On 18 March 2011, Comcare denied liability to compensate her.

3.      On 7 April 2011, Ms Barnes asked Comcare to reconsider its decision.  On 6 June 2011, Comcare revoked its decision and determined it was liable to compensate her for her injury. 

4.      On 1 July 2011, Medicare Australia was amalgamated into the Department of Human Services (the Department).

5.      On 16 August 2011, the Department lodged with the Tribunal an application for an extension of time within which to seek review of Comcare’s decision.  The application sought an extension to 26 August 2011 and stated, simply:

An extension is requested as the Department has been gathering information to support the request for an appeal.

6.      On 24 August 2011, Ms Barnes lodged a notice with the Tribunal opposing an extension of time.

7.      On 31 August the Tribunal sent notices to parties advising that that application for an extension of time would be heard on 20 September 2011.

8.      On 16 September 2011, Ms Barnes’ solicitors filed with the Tribunal and copied to the other parties a letter detailing her reasons for opposing an extension of time.

9.      On 19 September 2011, the Department filed with the Tribunal an Application for Review of Decision setting out its reasons for the application, and a statement dated 19 September 2011 by Ms Anna Devereaux, the Department’s Workplace Health Administrative Appeals Co-ordinator.

10.     On 20 September 2011, the Department’s application was heard by the Tribunal.

Reasons for the application

11.     The Department’s reasons for seeking the extension of time, as set out in its application for review filed on 19 September 2011, were as follows:

(i)the decision to accept liability for Ms Barnes injury was not supported by the medical and factual evidence;

(ii)Ms Barnes had a history of left hand and wrist injuries outside of the workplace prior to her accepted injury, and there was evidence that her early symptoms were caused by compensating for a non-compensable right wrist injury by using her left wrist more at home;

(iv)her attendance records indicated she was absent for significant periods before her accepted injury and that, at that time of her injury, she was working in very limited administrative duties;

(v)there was specialist medical evidence that her injury was constitutional in origin and exacerbated as much by day to day activities as workplace activities, and specialist evidence that her reported symptoms were inconsistent with observations on clinical examination.

12.     The Department further stated that, whereas the decision stated there was no evidence that Ms Barnes’ general practitioner and another doctor were unaware of the history of injuries, there was no evidence they were aware of, and had considered, that history.  Further, her general practitioner had reported she had no past history of problems with her left wrist, which was not the case.

13.     Ms Devereux’ statement set out the following matters:

(i)at the time of Comcare’s decision on 6 June 2011, it was her role to provide technical advice regarding appeals against Comcare decisions;

(ii)on 20 June 2011, she received by fax a request from a rehabilitation case manager at Medicare for an opinion on whether it ought consider appealing the decision; she was unable to review the matter before going on three weeks leave on 24 June 2011; she briefly reviewed the request but did not formally reply; she incorrectly assumed that the matter would be “re-referred”;

(iii)on 1 July 2011, Medicare was integrated into the newly-formed Department, with the result that any proceedings had to be filed by the Department in accordance with new instruments of delegation;

(iv)on 18 July 2011, she returned to a new role in the Department and started handing over her files to other officers; she did not follow up the original enquiry from the rehabilitation case manager as she assumed the matter would have been dealt with;

(v)on 12 August 2011, an officer contacted her to say the rehabilitation case manager had been in contact that day to advise she was still awaiting a response;

(vi)following this conversation, she immediately started to collect medical evidence to form an opinion as to whether review should be sought of Comcare’s decision; the file was received from Comcare on 16 August 2011 and, on the same day, the Department filed its application for extension of time.

The law

14. The time within which an application must be lodged with the Tribunal is set out in s 29 of the Administrative Appeals Tribunal Act 1975.  Generally, the period within which an application must be lodged with the Tribunal ends on the 28th day after the decision is given to a party.  However, s 65 of the Safety, Rehabilitation and Workers Compensation Act 1988, extends to 60 days the time for seeking review of a determination made under that Act.

15. The Tribunal may extend the time for the making of an application for review if it is satisfied that it is reasonable in all the circumstances to do so: s 29(7) Administrative Appeals Tribunal Act 1975.  However, the statutory limitation on the time for lodging an application should not be set aside lightly.  A person seeking to have that period extended needs to show that his or her case is a “justifiable exception to the rule”: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553, per McHugh J.

16.     The principles by which a decision whether to grant an extension of time should be guided are well-established.  In Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176, Wilcox J summarised them as including, but not limited to:

(a)      whether there is an acceptable explanation for the delay;

(b)whether the applicant rested on their rights or made the decision-maker aware they contest the finality of the decision;

(c)       any prejudice to the respondent;

(d)public considerations including the unsettling of others and established practices;

(e)      the merits of the substantive application;

(f)       fairness between the applicant and others in a like position; and

(g)      whether it is fair and equitable in all the circumstances to extend time.

17.     No one factor is determinative.  All factors relevant to the particular case have to be weighed together in deciding whether to grant the extension: Zizza v Federal Commissioner of Taxation [1999] FCA 37.

Submissions

18.     The Department submits that, in considering what is reasonable in all the circumstances, the Tribunal should have regard, broadly, to three factors: whether the substantive application has merit; the length of and reason for any delay; and whether the delay prejudices any party to the application.

19.     The Department submits that the substantive application has “some prospect of success”.

20.     The Department further submits that there is no prejudice to Ms Barnes in the Department's delay in filing an application for review; she has been eligible to seek reimbursement of medical expenses and time off work since the injury on 11 November 2010 and these benefits will be paid by Comcare, notwithstanding the current application, unless and until the decision of 6 June 2011 is revoked.

21.     The principal ground on which the Department says its application should be granted is the prejudice which it says will flow to it should the application not be granted.  Its workers’ compensation premium is influenced by the number of accepted claims and payments associated with them, and the overall workers’ compensation leave taken by its staff.  It contends that Ms Barnes’ claim has been identified by Comcare’s Customer Information System as a “high cost claim” because her extended periods of absence since the date of injury make incapacity payments the largest component of the cost of her claim.  The Department says that, if this pattern of attendance continues, costs associated with the claim will continue to rise and the premium for the claim would rise as a consequence.  It estimates that, over the four-year premium cycle, the claim could cost more than $400,000.

22.     Ms Barnes submits that Comcare's determination was made on 18 March 2011; she sought review on 7 April 2011, and the Department had the opportunity and ability to gather information in the course of the reconsideration process which extended over the period until 6 June 2011.  Moreover, she submits, the Department then had 60 days within which to file an application for review.  She submits that the Department's “tardiness and inaction or inattention has resulted in an application filed out of time”.

Consideration

23.     For the following reasons, I am not satisfied that an extension should be granted in this case.

24.     The starting point is that the legislation provides a statutory period within which applications for review should be made.  Certainty and finality of proceedings are important principles in the administration of justice.

25.     The Safety, Rehabilitation and Compensation Act1988 has built into it a considerable period within which a party may seek review of the decision. It is considerably longer than the 28 days prescribed generally by s 29(2) of the Administrative Appeals Tribunal Act1975.

26. The Department’s application for review of Comcare’s decision should have been lodged with the Tribunal by 9 or 10 August 2011 (allowing 60 days from the date of decision plus delivery in the ordinary course of post: s 29 of the Acts Interpretation Act 1901). It was not until 16 August 2011 that the application for an extension of time was lodged.

27.     In this case, there has been a series of delays, each of which is understandable, but which add up to what can fairly be described as poor administration.  I appreciate that the Department is in a slightly different position from parties to some Tribunal proceedings whose own delegates make the reviewable decision and who, perhaps, have some more control over the proceedings.  However, any difference is compensated for by the additional time that parties have to seek review in compensation matters.

28.     The Department’s original application for an extension of time indicated only that it was “gathering information”, indicating that, at that point, it had no real idea whether an application for review was warranted.  It sought an extension to 26 August 2011 within which to file its application for review but it was not until 19 September 2011, the day before the matter was to be heard in the Tribunal, that the Department gave its reasons for seeking the extension and its reasons for seeking review of the determination.  That was over five months after Ms Barnes had requested reconsideration of the determination, over three months after the decision to accept liability, and approximately six weeks after the 60 day period had elapsed.

29.     I understand from Ms Dinnen, who appeared for the Department, that someone from the Department spoke to a Tribunal officer on 26 August 2011, and again on 7 September 2011, and on both occasions was advised that the Department was not required to file its reasons when filing its original application for an extension, and that it would be sufficient to do so prior to the Tribunal hearing.  Although I have no direct evidence of those conversations, I accept they occurred.  However, that only partly explains the delay.

30.     I accept that, if granted, the Department’s application would have “some prospects of success” in the sense that there are varying medical opinions about Ms Barnes’ injury.  However, there is commonly a range of medical opinion in any contested matter.  Moreover, one of the reports on which the Department now seeks to rely was not before the delegate who made the decision on reconsideration, apparently because an oversight meant the Department did not provide it to Comcare.

31.     I accept that there may be some prejudice to the Department in refusing the extension of time but only, really, in the sense that it loses the opportunity to test the merits of the application.  I accept it would have an arguable case if the matter went to review but I do not think it can be put much higher than that.  I accept that, liability for Ms Barnes’ injury having been accepted, the Department’s workers’ compensation premium may now be affected, but I do not think that is itself a compelling argument for granting an extension of time; as I understand it from the Department’s submissions, it is the potential consequence of any successful claim for compensation.

32.     On the other hand, Ms Barnes has believed since the determination on 6 of June 2011 that her claim has been accepted.  As the Department points out, she has continued to be paid since that date.  It is reasonable to conclude that she has relied on those payments and she would now be faced with some uncertainty about the payments she has received already, as well as in the future.

33.     When the relevant factors are weighed in light of all of the circumstances, I am not satisfied that it is reasonable in this case to grant an extension of time.

34.     The application is refused.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member.

Signed:         .....................[sgd]........................
  Associate

Date of Hearing  20 September 2011
Date of Oral Decision  20 September 2011
Date of Written Reasons  20 October 2011
Counsel for the Applicant  Ms D Dinnen
Representative for the Applicant               Ms R Curtis Dept of Human Services
Representative for the 1^st Respondent     Ms E O'Connor, Sparke Helmore
Solicitor for the 2^nd Respondent       Ms M Singh, Maurice Blackburn