Stevenson and Comcare

[2005] AATA 870

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 870

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2005/843

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ROBERT LAWRENCE STEVENSON

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member Robin Hunt

Date7 September 2005

PlaceSydney

Decision The Tribunal, pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975, extends the time for the making of an application for review of the decision of the Respondent, the subject of this application, to 4 October  2005.

…………………………

Ms R Hunt

Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – Application for review – Application for an extension of time to review decision – Applicant lodged a previous appeal in the Tribunal in relation to the same decision under review – Previous application withdrawn – Factors to be considered – Merits of case – Basis of subsequent claims requires matter be heard – Little prejudice to Respondent – Extension of time granted.

LEGISLATION

Administrative Appeals Tribunal Act 1975: s29(7)

CASES

Itex Graphix Pty Limited v Elliott (2002) 54 NSWLR 207

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 7 ALD 315
Comcare v A’Hearn (1993) 45 FCR 441

REASONS FOR DECISION

7 September 2005	Senior Member Robin Hunt
background

1.      Mr Robert Lawrence Stevenson, seeks an extension of time for the making of an application to the Tribunal for review of a decision relating to an alleged injury that is said to have occurred during the course of his employment in 1989.  Comcare opposes the application for extension of time principally on the grounds that the application is about 11 years out of time. The documents before the Tribunal show that, while Mr Stevenson in 1989 neglected to put in a claim for any injury, by 1992 he claimed that a subsequent injury he suffered in that year exacerbated his 1989 injury. He made a claim in respect of both the 1989 incident and the 1992 incident on the one claim form. Comcare accepted liability for the 1992 claim but rejected the 1989 claim.

2.      Mr Stevenson was still pursuing this matter in 1994 when he withdrew a review application before the Tribunal after he was refused an adjournment. Mr Stevenson did not again raise the matter before this Tribunal until 1 July 2005. He now seeks again to pursue his earlier injury claims on the basis that the alleged 1989 injury is relevant to other claims before the Tribunal, which are between the same parties and listed as N2003/1849, N2005/285 and N2005/920. Mr Stevenson has asked that these matters be joined.

3.      The Tribunal had before it medical reports obtained by both parties, including one from Dr Davis for Mr Stevenson and one from Dr Chen for Comcare. Both doctors express the opinion that Mr Stevenson’s injuries today are consistent with his history of an incident around October/November 1989, with further trauma occasioned in 1992. Both doctors find some degree of permanent impairment.

4.      The 1989 injury claim came before the AAT on 13 July 1994.  A three member Tribunal convened in Canberra with Senior Member Allen presiding.  A report on what happened at that hearing was prepared by Mr Sewell of counsel who appeared for Mr Stevenson.  He summarised the submissions he put in support of an application that the proceedings be adjourned. Among other things, it was put that there were a number of injuries which were contributing overall to Mr Stevenson’s condition. From the documents before the Tribunal, it is apparent that in 1999 the question of permanent impairment was reactivated. A Dr Roebuck provided another report and additional reports were obtained. 

consideration

5.      For the purpose of these proceedings I will not do more than briefly consider the possible merits of Mr Stevenson’s case, noting that there is a congruence of medical opinion about the probable source of his current impairment and that Mr Stevenson has consistently said since 1992 that his impairment is work-related. I therefore do not agree with Comcare’s contention that Mr Stevenson has no new evidence to put to the Tribunal about the 1989 incident and claim.

6. On the other hand, as well as the question of delay, Mr Stevenson has been to the Tribunal before and withdrew that application by consent. Mr Stevenson lodged an application with the Tribunal to review Comcare’s refusal decision in 1993 (A1993/135) and, on 13 July 1994, the Tribunal dismissed the application under section 42A(1) of the Administrative Appeals Tribunal Act 1975 (the Act).  The dismissal occurred because, as counsel explained to the present Tribunal, the application was withdrawn by consent after the Tribunal refused to accede to Mr Stevenson’s request for an adjournment.

7.      Mr Stevenson did not apply to the Tribunal again until 1 July 2005. That is about 11 years after the dismissal referred to above. Correspondence before the Tribunal indicates that Mr Stevenson’s counsel advised him/his solicitors that he must re-apply within 28 days but for some reason, Mr Stevenson did not do so. Notwithstanding the good advice from counsel, he did not choose to make an application to the Tribunal until 2005.

8.      In this case, the most important factor to be taken into account in deciding whether or not to grant the extension of time relates to the question of Mr Stevenson’s proper compensation.  If the rejection of his claim is not correct, or if there is an arguable case that it was not correct, he should not be denied the opportunity to have a review of his claims.  He should not be put in the position of having no compensation if his continuing condition does date back to an injury and claim not fully reconsidered.

9.      In my view there is little prejudice to Comcare. The litigation between the parties has been ongoing to a degree although it came to a halt in 1994 and was not raised again until recently. Although the matter was dismissed in 1994, Mr Stevenson withdrew by consent after failing to obtain an adjournment. The suggestion is that he was not fully prepared to proceed or that his condition had not fully stabilised. There is nothing to suggest that it was not entirely his own fault that the matter has lapsed. Nevertheless, the Tribunal is expected to find the correct or preferable decision and it will be difficult to make such a decision without being as fully informed about any incident in 1989 as is possible. While a hearing in the matter will necessarily involve providing evidence about events in 1989, in my view, it is Mr Stevenson who will be at the main disadvantage in having to establish that he had the workplace accident as he claims. He will be at a greater disadvantage trying to show this than Comcare will be put in denying liability after the lapse of time.

10.     I also take into account a number of cases drawn to my attention about the instances in which extensions of time have and have not been granted. The Full Federal Court in Comcare v A'Hearn (1993) 45 FCR 441 considered a case where the issue arose about delay. The matter had been in the hands of solicitors, as indeed this matter had been, and the question arose about whether the applicant should be prevented from having his case heard despite delay. This case suggests that there is no pre-condition that an acceptable explanation for the delay must be given, although it is a relevant matter to be considered. In Itek Graphix [2002] NSWCA 104, the New South Wales Court of Appeal did not allow an extension of time where the party seeking an extension had not been diligent in pursuing her claim. This judgment has persuasive value but the Tribunal is in the position of not being able to consider Mr Stevenson’s whole case, without taking into account evidence as to events in 1989. Accordingly, Mr Stevenson’s lack of diligence is not the only factor I have considered.

11.     Section 29(7) of the Act says the Tribunal may grant an extension of time where applications have been filed outside the time allowed by the statute. The exercise of the discretion is guided by principles laid down in the Federal Court decision of Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 7 ALD 315. At least three factors are important:

·     Is there a satisfactory explanation or excuse for the delay in bringing the matter before the Tribunal?

·     Would the Commonwealth be prejudiced by the delay since the original decision?

·     The merits of the substantive application, although I am not required to conduct a mini-trial before reaching an opinion as to the possible merits.

12.      The list of factors is not an exhaustive one. I must ultimately decide whether it is just and appropriate in all the circumstances to make the orders sought. On the negative, Mr Stevenson’s explanation for the delay is not adequate.

13.     Comcare claims prejudice exists. There is certainly an element of difficulty in requiring the department to defend their decision after such a long time. However, the original claim and supporting statements of witnesses are available although untested.

14.     The Hunter Valley Developments case also suggests I must consider the merits of the substantive application. Mr Stevenson’s case is not devoid of merit as I have already observed in relation to the new medical evidence of Drs Davis and Chen. Ultimately, the goal of the Tribunal is to reach the correct or preferable decision.

Conclusion

15. While I am uncomfortable with an approach that suggests an applicant, whose application has been dismissed following a withdrawal pursuant to s 42A(1) of the Act, is able to circumvent the restrictions on reinstatement by simply seeking an extension of time, an extension has been permitted in a number of cases in the past. On balance, I am persuaded that the Tribunal will be assisted to make the correct or preferable decision in this case if it is able to take the whole of Mr Stevenson’s circumstances and claims into account.

decision

16. The Tribunal, pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975, extends the time for the making of an application for review of the decision of the Respondent, the subject of this application, to 4 October  2005.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Robin Hunt

Signed:         .....................................................................................
Zoe McDonald
Associate

Date of Hearing: 2 August 2005    
Date of Decision: 7 September 2005        
Counsel for the Applicant: Mr Grey
Solicitor for the Applicant: Carroll and O’Dea Lawyers
Counsel for the Respondent: Mr Kelly      
Solicitor for the Respondent: Australian Government Solicitor