Smith and Comcare

[2001] AATA 747

DECISION AND REASONS FOR DECISION [2001] AATA 747

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/809
GENERAL  ADMINISTRATIVE DIVISION
  Re:       ROBYN ELIZABETH SMITH
  Applicant
  And:     COMCARE
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:9 August 2001

Place:Melbourne

Decision:For reasons given orally at the telephone hearing, the Tribunal refuses the application for an extension of time.

(sgd) Graham Friedman
  Member
PRACTICE AND PROCEDURE - extension of time to lodge application
Administrative Appeals Tribunal Act 1975 s29(7), s37
Safety, Rehabilitation and Compensation Act 1988
Hunter Valley Developments Pty Limited v Cohen, Minister for Home Affairs and
     Environment (1984) 3 FCR 344

REASONS FOR DECISION

9 August 2001  G.D. Friedman, Member

1. This is an application by Robyn Elizabeth Smith (the applicant) for an extension of time to lodge an application to the Tribunal for review of a decision of Comcare (the respondent) made on 3 March 1999 (the reviewable decision) which affirmed a decision made on 19 October 1998 disallowing her claim for compensation arising out of her employment.

2. The Tribunal arranged for a hearing of this matter to be held by telephone on 9 August 2001.  On the morning of the hearing the Tribunal attempted unsuccessfully to contact the applicant on the telephone number provided by her. The hearing proceeded in her absence.  Ms J. Greaves, Solicitor, represented the respondent.

3. At the conclusion of the hearing the Tribunal made an oral decision refusing the application.  On 20 August 2001 the applicant requested written reasons for the decision.
   BACKGROUND

4. On 3 July 1998 the applicant lodged a claim for rehabilitation and compensation under the Safety, Rehabilitation and Compensation Act 1988 as a result of alleged depression and stress arising from her employment as a library manager with the Australian Taxation Office (ATO).  On 19 October 1998 the respondent disallowed the claim on the basis that her employment was not a causal factor in the development of the psychological symptoms.  On 30 October 1998 the applicant sought review of the decision, and on 3 March 1999 a review officer affirmed the decision after considering medical and other relevant material.  In the letter notifying the applicant of the decision the respondent stated that any application to the Tribunal for review of the decision must be made within 60 days from the date of the decision. 

5. On 18 June 2001 the applicant lodged an application with the Tribunal for review of the decision.  In her application under the heading Reasons for application she stated:

   The ATO refused to give me the name of the person allocated to help me with my claim. They also refused my many requests for help. I believe this is in breach of the Act.  

In an accompanying letter the applicant also referred to medical problems and stress which she attributed to the ATO as reasons for the late application.

1. As the application was received after the time limit had expired the Tribunal informed the applicant that she should lodge an application for an extension of time. On 29 June 2001 the Tribunal received her application.

2. On 17 July 2001 the respondent informed the Tribunal that it did not consent to the application.
   EVIDENCE

3. The material before the Tribunal consisted of the Tribunal's file and the documents prepared by the respondent under s37 of the Administrative Appeals Tribunal Act1975 (the Act), including the original decision and the reviewable decision, medical and other reports. 
   CONSIDERATION OF THE ISSUES

4. Under s29(7) of the Act:

   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).

5. In her application for an extension of time the applicant stated under the heading Reasons for application:

   The ATO misled me into believing I was fully informed of all processes etc. PSMPB (sic) found that I was never given any access to information needed to complete my Comcare forms.

6. In a submission dated 17 July 2001 the respondent stated that the applicant was represented by a firm of solicitors when she sought review of the original decision.  Following a request by the solicitors the respondent provided copies of all documents used in making the reviewable decision.  The respondent noted that the applicant's file was released to her on 18 October 1999.  On 21 October 1999 the respondent replied to a request from the applicant regarding re-submission of her claim and informed her that if she wished to pursue her claim she would need to lodge an application with the Tribunal.  The respondent also informed the applicant that if she claimed a new causation of symptoms related to her employment for the period previously claimed, she may wish to lodge a new claim.

7. The respondent submitted that the basis of the appeal to the Tribunal was the assertion by the applicant that she had not been informed of the name of a case manager allocated to her, although the respondent said that the relevant name was provided to the applicant on 28 September 1999.

8. In relation to the application for an extension of time the respondent submitted that the applicant's solicitors would have redressed any concern held by her regarding access to information to enable her to complete the claim form. In addition the respondent stated that the applicant was properly advised of her review rights and her solicitors, as experienced practitioners in this area of law, would also have advised her of the procedure for seeking review by the Tribunal.

9. In reaching its decision the Tribunal notes the decision of Hunter Valley Developments Pty Limited v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344, in which the Federal Court set out a number of factors to be taken into account when considering the exercise of the discretion to grant an extension of time:

• proceedings should not be commenced outside the prescribed time and to do so the applicant must offer an acceptable explanation for the delay and must demonstrate that the grant of an extension would be fair and equitable in the circumstances;

• action taken by the applicant, apart from making the application for review, which is relevant to the question of whether an acceptable explanation has been provided;

• any prejudice to the respondent;

• any unsettling of persons other than the respondent, or of established practices;

• the merits of the application for review;

• considerations of fairness between the applicant and other persons in a similar positions.

1. In applying the facts of this case to the factors in Hunter Valley Developments Pty Limited the Tribunal takes into account that the application for an extension of time was made more than two years after the reviewable decision.  There is no evidence that the ATO misled the applicant into believing she was fully informed of all processes.  From the material provided, the respondent made all relevant documents available to the applicant on 18 October 1999.  The applicant has not provided any medical or other evidence to support her application.  Consequently the Tribunal finds that the applicant has not offered an acceptable explanation for the delay, nor has she demonstrated that it would be fair and equitable in the circumstances to extend the time to lodge an application for review.

2. The applicant provided no additional material to the respondent regarding her claim for rehabilitation and compensation when invited to do so by the respondent after the reviewable decision was made.  She has taken no action relevant to the question of whether an acceptable explanation has been provided.  Because of the length of time that has elapsed since the reviewable decision the Tribunal finds that the respondent may suffer considerable prejudice if an extension is granted, particularly as the delay might present difficulties for medical and other witnesses. The grant of an extension after such a long period may also unsettle existing practices regarding review processes and the gathering of evidence.

3. The Tribunal has considered the material contained in the reviewable decision and is satisfied that the review officer took all relevant matters into account.  In the absence of additional evidence the Tribunal finds little merit in the application for review.  In relation to fairness between the applicant and persons in a similar position,  there is no evidence or other material that would satisfy the Tribunal that the public interest would best be served by the grant of the extension of time sought by the applicant.

4. For these reasons the Tribunal finds that the discretion in s29(7) of the Act to grant an extension of time to the applicant should not be exercised.
   DECISION

5. The Tribunal refuses the application for an extension of time. 

   I certify that the eighteen [18] preceding paragraphs are a true copy of the reasons for the decision of:
   G.D.Friedman, Member

   (sgd)       Catherine Thomas
                 Clerk

   Date of hearing:  09.08.01
   Date of decision:  09.08.01
   Solicitor for applicant:                  Nil
   Solicitor for respondent:              Ms J. Greaves, Dibbs Barker Gosling