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

1. Ms Saffioti commenced employment with the Department of Defence in 2001.

2. 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.

3. 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”.

4. 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.

5. 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.

6. Ms Saffioti received the reviewable decision on 10 March 2015.  She did not make an application to the Tribunal within the following sixty days which ended on 11 May 2015.

7. On 15 September 2017 Ms Saffioti applied to the Tribunal for an extension of time in which to apply for a review of the reviewable decision. Comcare opposes the granting of the extension of time sought.

8. 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

9. 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.

10. 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.

11. 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.

12. 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

13. 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.

14. 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.

15. 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.

16. 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.

17. It was argued that to grant an extension of time when there is a delay of such magnitude would be unfair to other applicants and potential applicants who meet the requirements of the law.

    DISCUSSION

    The explanation for the delay

18. In Hunter Valley Developments the Court said, in part:

    Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The “prescribed period” of twenty-eight days is not to be ignored…..

    It is a precondition to the exercise of discretion in his favour that the applicant for extension show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time ….. .[4]

    [4] (1984) 3 FCR 344 at 348.

19. However in Comcare v A’Hearn[5] the Full Federal Court made it clear that while the explanation for the delay is a relevant consideration, it is not an essential pre-condition to the exercise of the discretion to extend time.

    [5] (1993) 45 FCR 441 at 444.

20. Ms Saffioti has given an explanation which has not been challenged by Comcare and which I have accepted. On this basis I am satisfied that Ms Saffioti was not responsible for the delays which have occurred. If there were no other relevant considerations I would grant the extension requested.  I make no finding as to the conduct of her previous Solicitor.

    Prejudice to Comcare

21. In  Hunter Valley Developments the Court said:

    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…..

    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.[6]

    [6] (1984) 3 FCR 344 at 349.

22. There is some evidence that Comcare would be prejudiced in preparing its case for a final hearing.  Email statements from four prospective witnesses were provided by Comcare[7] in which each indicates that his/her recollection of events would be affected by the passage of time.  This is to be expected, however I am not satisfied that this would present any greater problem for Comcare than that which occurs in many matters before the Tribunal when witnesses are asked to recall events which happened several years previously. In my view, evidence that witnesses will have difficulty with their recall of events, without more, is insufficient to establish such prejudice as would justify refusing an application for extension of time.[8]

    [7] Exhibit R1.

    [8] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

23. I accept that, in a particular case, public considerations may be relevant in considering whether there is likely to be prejudice to the respondent to an application for an extension of time.[9]  However in this case there is no evidence on which I could base such a finding.

    [9] McKenzie and Comcare [2016] AATA 1100.

    Fairness to other applicants

24. 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

25. 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

26. 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.

27. 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.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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Associate

Dated: 17 January 2018

Date(s) of hearing:	6 December 2017
Counsel for the Applicant:	A Anforth
Solicitors for the Applicant:	Lough & Wells Lawyers
Solicitors for the Respondent:	S Kapoor, Comcare