Saffioti and Comcare (Compensation) - [2018] AATA 43

Saffioti and Comcare (Compensation) [2018] AATA 43 (17 January 2018)
Division:GENERAL DIVISION
File Number(s): 2017/5586
Re:Victoria Saffioti
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:17 January 2018
Place:Sydney

Pursuant to section 29(7) of the Administrative Appeals Tribunal Act1975, and upon written application by the Applicant made 15 September 2017, the Tribunal extends the time for the making of an application for review of the decision of the Respondent to 31 January 2018.
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J W Constance
Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time application – compensation claim – explanation for the delay – former solicitor of applicant did not make application to Tribunal within time – whether prejudice to respondent – whether fair to other applicants – whether substantive application has merit – extension of time granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 64, 65
CASES
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Comcare v A’Hearn (1993) 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
McKenzie and Comcare [2016] AATA 1100
Thompson and Comcare [2004] AATA 756
REASONS FOR INTERLOCUTORY DECISION
Deputy President J W Constance
17 January 2018
INTRODUCTION

Ms Saffioti commenced employment with the Department of Defence in 2001.
On 13 June 2014 Ms Saffioti lodged with her employer a claim for compensation in respect of “anxiety/depression, adjustment disorder”. She claimed that the cause of her injury was her workload and work environment. In the claim document Ms Saffioti stated that she first noticed her condition in mid-2011 and that she first sought medical treatment for it in March 2014.
On 10 September 2014 Comcare determined that it was not liable to pay compensation to Ms Saffioti in respect of the claimed injury. She sought a review of this determination. On 5 March 2015 Comcare affirmed its earlier determination. I will refer to this affirmation as “the reviewable decision”.
Section 64 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) provides that an application may be made to this Tribunal for a review of a reviewable decision. Section 65 of the SRC Act, in combination with section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) provides that such an application is to be made not later than the sixtieth day after receipt of the document setting out the terms of the reviewable decision.
Subsection 29(7) of the AAT Act provides that the Tribunal may extend the time for making an application for review as follows:
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.
Ms Saffioti received…

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.

Continue reading Saffioti and Comcare (Compensation)

Details

AGLC: Saffioti and Comcare (Compensation) [2018] AATA 43
Case: [2018] AATA 43
Decision Date: 17 January 2018

CaseChat Overview and Summary

This matter concerned an application by Ms Saffioti for an extension of time to seek a review of a decision made by Comcare regarding her compensation claim. The dispute arose because Ms Saffioti's former solicitor failed to lodge the application for review within the prescribed time. The application for an extension of time was heard by Deputy J W Constance P.

The primary legal issues before the court were whether there was an acceptable explanation for the delay in lodging the application, the potential prejudice to Comcare if an extension were granted, and whether it would be unfair to other applicants to grant the extension. Comcare argued that the delay would prejudice its ability to gather evidence and that public interest considerations, such as the diversion of resources and potential impact on premiums, weighed against granting an extension.

The court found that Ms Saffioti had provided an acceptable explanation for the delay, attributing it to errors made by her former legal representative, and that she had consistently wished to pursue her claim. The court considered that the prejudice to Comcare was not so significant as to outweigh the applicant's right to have her claim heard, particularly as the substantive claim appeared to have reasonable prospects of success, with likely available medical evidence. The court also determined that granting the extension would not be unfair to other applicants, especially as Ms Saffioti herself had not contributed to the delay.

Consequently, the court ordered that the time for Ms Saffioti to apply for a review of Comcare's decision be extended to close of business on 31 January 2018.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow the time for applying for a review of the reviewable decision will be extended to close of business on the fourteenth day after the publication of these reasons.BACKGROUND Ms Saffioti provided an affidavit sworn 2 November 2017 in support of her application.[1] She annexed to her affidavit a detailed chronology of relevant events which have occurred since 4 March 2014. For the purposes of this application for an extension of time, Comcare accepts the accuracy of the statements by Ms Saffioti. Unless stated otherwise the following findings are based on her evidence.[1] Exhibit A1. Ms Saffioti first sought legal advice in relation to the events which she says gave rise to her compensation claim in March 2014. The Solicitor she consulted accepted her instructions and made the claim on her behalf. He continued to act for her until 10 May 2017. Since then Ms Saffioti has been represented by Lough & Wells Lawyers. I am satisfied that at all times Ms Saffioti wished to proceed with an application for a review of the reviewable decision and did everything required of her by her previous Solicitor to enable him to make the necessary application to the Tribunal. Prior to her instructing Lough & Wells she understood that an application for review would be lodged within the prescribed time, although she was unaware of when that time limit expired. On 27 July 2017 Ms Saffioti attended a conference with Counsel, who had been briefed by her Solicitors. Following this conference documents were prepared to support this application for an extension of time lodged with the Tribunal on 15 September 2017.COMCARE’S ARGUMENT Counsel for Comcare referred me to the principles set out by the Federal Court in Hunter Valley Developments Pty Ltd v Cohen.[2] It was argued that the relevant issues in this matter are:·Is there an acceptable explanation for the delay?·What, if any, is the likely prejudice to Comcare should the extension of time be granted?·Would it be unfair to other applicants to extend time in this application?[2] (1984) 3 FCR 344. Comcare accepts that there is nothing to suggest that Ms Saffioti was being untruthful in her account of her dealings with her previous Solicitor but that I should be cautious before making findings against him in his absence. It was acknowledged that errors made by a legal representative have often been regarded by the Tribunal as acceptable explanations for the delay in making applications.[3][3] For example, see Thompson and Comcare [2004] AATA 756. It was argued further that, in this matter, the prejudice to Comcare is such that, for this reason alone, I should refuse to grant the extension sought. Counsel argued that (a) the public interest would be prejudiced and (b) the length of the delay in commencing proceedings will prejudice Comcare’s ability to assemble the evidence necessary to properly present its case at a final hearing. So far as the public interest is concerned, it was argued that Comcare’s resources should not be diverted to further investigate the claim at this late stage and that the premiums of those insured under the scheme may be affected. In relation to the difficulty in gathering the evidence needed it was put that it may be difficult to locate witnesses and that the recollections of witnesses would be lessened by the passage of time.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I have also given consideration to the merits of the substantive application should Ms Saffioti be in a position to make it. Whilst it is not the role of the Tribunal to consider the merits in detail I am satisfied on the basis of the evidence of Ms Saffioti that she has reasonable prospects of success should the matter proceed to final determination. In particular I note that her claim is based on her perceptions of events which occurred in the workplace. It is reasonable to expect that there will be considerable medical evidence in support of such a claim. As Ms Saffioti has consulted several medical specialists over recent years, this evidence is likely to be available and not reliant on witnesses whose recollections may be affected by the passage of time. I have taken into account that Ms Saffioti was examined by a psychiatrist on behalf of the Department of Defence in February 2016.CONCLUSION In all the circumstances I am satisfied that it is reasonable that Ms Saffioti be granted an extension of time in which to make an application for a review of the reviewable decision. The time in which Ms Saffioti may apply to the Tribunal for a review of the decision made by Comcare refusing her application for compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) on 5 March 2015, will be extended to close of business on 31 January 2018.

Ratio Decidendi

Legal Principle Established

While there will always be an issue as to the perceptions of fairness held by other applicants who have complied with the statutory time limits, there is no reason to consider that this is of particular concern in this application. Both the SRC Act and the AAT Act provide for an extension of time and I am not satisfied that the exercise of the discretion in favour of Ms Saffioti in this application would generate any feelings of unfairness in others. This is particularly so where the applicant personally has not contributed to the delay.Other considerations I have also given consideration to the merits of the substantive application should Ms Saffioti be in a position to make it. Whilst it is not the role of the Tribunal to consider the merits in detail I am satisfied on the basis of the evidence of Ms Saffioti that she has reasonable prospects of success should the matter proceed to final determination. In particular I note that her claim is based on her perceptions of events which occurred in the workplace. It is reasonable to expect that there will be considerable medical evidence in support of such a claim. As Ms Saffioti has consulted several medical specialists over recent years, this evidence is likely to be available and not reliant on witnesses whose recollections may be affected by the passage of time. I have taken into account that Ms Saffioti was examined by a psychiatrist on behalf of the Department of Defence in February 2016.CONCLUSION In all the circumstances I am satisfied that it is reasonable that Ms Saffioti be granted an extension of time in which to make an application for a review of the reviewable decision. The time in which Ms Saffioti may apply to the Tribunal for a review of the decision made by Comcare refusing her application for compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) on 5 March 2015, will be extended to close of business on 31 January 2018.