Svatos and Australian Capital Territory (Compensation)
[2020] AATA 1413
•14 May 2020
Svatos and Australian Capital Territory (Compensation) [2020] AATA 1413 (14 May 2020)
Division: GENERAL DIVISION
File Number(s): 2019/5432
Re:Brenda Svatos
APPLICANT
Australian Capital TerritoryAnd
RESPONDENT
DECISION
Tribunal:Deputy President Gary Humphries AO
Date:14 May 2020
Place:Canberra
The Tribunal sets aside the reviewable decision of 16 July 2019 of the Territory and, in substitution, determines that Ms Svatos be allowed an extension of time under s 62(3) to lodge her request for reconsideration to 27 July 2018.
........................................................................
Deputy President Gary Humphries AO
Catchwords
PRACTICE AND PROCEDURE – power to reconsider determinations pursuant to section 62 of the Safety, Rehabilitation and Compensation Act 1988 – extension of time relevant considerations discussed – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988
Cases
Armitage and Secretary, Department of Social Services [2019] AATA 5659
Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449
Banks v Comcare Australia [1996] FCA 1490
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Comcare v A'Hearn [1993] FCA 498
Re Hunter Valley Developments Pty Limited v Minister of Home Affairs and Environment [1984] FCA 176
Jackamarra v Krakouer [1998] HCA 27
Karam and Comcare [2020] AATA 64
Lazos and Secretary, Department of Social Services [2019] AATA 4542
Maric v Comcare (1993) 40 FCR 244
Muller and Child Support Registrar [2019] AATA 4356
Nalder and Child Support Registrar [2019] AATA 5518
Noonan and Comcare [2019] AATA 515
Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109
Prestige Technical Training Institute Pty Ltd and Australian Skills Quality Authority [2019] AATA 460
Rahimzadeh and Secretary, Department of Social Services [2019] AATA 3201
Saffioti and Comcare [2018] AATA 43
Thompson and Comcare [2019] AATA 714
Weston and Secretary, Department of Social Services [2020] AATA 113REASONS FOR DECISION
Deputy President Gary Humphries AO
14 May 2020
INTRODUCTION
Ms Brenda Svatos claims to have been injured during her employment within the ACT Education Directorate in 2017. However, she was out of time in seeking reconsideration by Comcare of her claim under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). She has applied to the Tribunal to set aside a decision to refuse her an extension of time to seek reconsideration of Comcare’s original decision.
On 1 March 2019 the Australian Capital Territory (the ACT or the Territory) became a licensee under the Act, and thus the respondent in these proceedings in substitution for Comcare.
Due to restrictions in place following the outbreak of novel coronavirus in early 2020, the hearing of this application was conducted by telephone. A statement of Ms Svatos dated 1 November 2019 was tendered, but she was not called to give evidence.
BACKGROUND
In early 2017 Ms Svatos was the business manager at Monash Primary School in Canberra. On 25 July 2017, she signed a Comcare Workers’ Compensation Claim Form in which she alleged she was suffering from mixed anxiety/depression due to repeated bullying during her employment by the Directorate.[1] She stated that she first noticed her symptoms/injury on 14 February 2017. The Tribunal was taken to documents suggesting that there had been workplace conflict between Ms Svatos and the school principal, HSVK.
[1] The use of italicised text in this decision generally indicates direct quotation
In about April 2017 Ms Svatos had engaged solicitors, United Legal, to act on her behalf in relation to her workers’ compensation claim.
On 21 August 2017, Dr Ash Takyar, Consultant Psychiatrist, examined her for the purposes of her claim. In a medical report dated 31 August 2017, he described Ms Svatos’s condition in these terms:
…a moderate to severe grade adjustment disorder with mixed anxiety and depressed mood…
She reported symptoms commencing around February 2017 in the context of what she experienced as a barrage of commentary around performance issues and criticism of her work.
On 29 September 2017, Comcare issued a determination declining liability to pay compensation to Ms Svatos pursuant to s 14 of the Act for adjustment reaction with mixed emotional features. The letter conveying the determination included this statement:
If you/your employer disagree with this determination you/they have the right for it to be reviewed. Please refer to the attached Notice of Rights or see 'Assistance and Further Information Options' at the end of this letter.
That Notice of Rights advised that she could seek a reconsideration of the determination within 30 days of receiving it.
In October 2017 correspondence passed between United Legal and Comcare concerning Ms Svatos’s claim.
In her statement of 1 November 2019, Ms Svatos says:
Throughout the time that I had United Legal as my solicitors, I experienced great difficulty in making contact with Mr Montagnimo [sic], or getting anyone to respond to my calls or emails.
Following receipt of Comcare's letter declining my claim, I attempted to contact Mr Montagnimo, but was not successful.
On 19 January 2018 I received an email from Stacey Bell, Paralegal at United Legal concerning my claim, advising me of the need to keep a diary with respect to my claim.
In early April 2018, I was advised by Mr Montagnimo that United Legal had engaged a barrister to advise in respect of my claim. At no time was I advised by anyone at United Legal that a reconsideration of Comcare's decision had not been requested on my behalf, and that I was now out of time to request a reconsideration.
In the same statement she records that she retained United Legal as her solicitors until late April 2017. Both parties accepted that this must be an error, given that those solicitors were still corresponding with Comcare on her behalf in October that year. The Tribunal’s attention was drawn to an email from Ms Svatos to United Legal on 3 May 2018 in which she asked them to confirm if you are still interested in pursuing my ComCare [sic] case on my behalf, but which expressed the fear that I now believe my trust [in the firm] was misplaced.
On 27 July 2018, Ms Svatos sent an email to Comcare in which she said:
I wish to request a review of my compensation case due to new developments in staffing structures and the Principal is no longer at Monash Primary School.
As I now feel stronger to follow up on my denied compensation claim, I have attached documents from two executives, 2 LSAs and a Building Service Officer that have been bullied and harassed also.
On the same day an officer of Comcare sent a reply email advising that a request for reconsideration must be provided to Comcare within 30 days of receipt of the determination (or any further period as Comcare allows). As her request was outside this timeframe, the officer advised that Comcare required an explanation as to why Ms Svatos did not request reconsideration within the legislated 30 day timeframe. Ms Svatos was advised that no further action would be taken in relation to her claim until her reasons for delay were received.
Tendered clinical notes from her GP’s surgery dated 31 May 2019 record the reason for her visit that day as Depression/anxiety. The notes record:
… not coping at work …feels paranoid…felt very anxious on coming back to work – stomach churning in mroning [sic] while getting ready…low concentration – low energy…feels very tired…
In about June 2019 Ms Svatos retained new legal advisers, David Healey Solicitors. On 9 July 2019, the solicitors sent an email to Employers Mutual Limited, the Territory’s claims manager, seeking an extension of time within which to seek reconsideration of the determination of 29 September 2017. The basis for this request was set out as follows:
- The extension of time is in relation to the submission of a short request for reconsideration of the Comcare decision to deny her claim on 29 September 2017
- We would like the extension of time in order to provide a reasonable response to the decision to deny liability as my client is in a very anxious and depressed state
- As stated my client is a mess and suffers from what [her] GP now states is PTSD
We have looked at the materials for this matter and there are many medical certificates that justify her injury and her inability to function at work. My client was also with a previous law firm that did not action the reconsideration. I have my client seeing her GP today to get a letter of support.
You[r] act of discretion in this instance is appreciated as there is a further more administratively burdensome option of putting a new claim in given the worsening of her injury.
On 16 July 2019, the Territory issued a Reviewable Decision declining Ms Svatos’s request for her to be allowed additional time in which to request reconsideration of the determination. The decision-maker referred, inter alia, to these reasons:
(a)Ms Svatos’s request was some 618 days outside of the legislated timeframe;
(b)no acceptable explanation for the delay had been provided; and
(c)the Territory had been significantly prejudiced in the assessment of her claim, having regard to the length of the delay.
On 2 September 2019, Ms Svatos lodged an application for merits review of the Reviewable Decision by this Tribunal.
In the course of the hearing an email dated 13 February 2020 from the Chief Minister, Treasury and Economic Development Directorate of the ACT Government was tendered. It advised that [HSVK] is certified totally unfit for work and it is not recommended that he be contacted at this time. The email also advised that Ms Lili Jankovic, the former deputy principal of the school, is no longer working at Monash Primary School.
ISSUE
The issue for the Tribunal to determine in this application is whether Ms Svatos should be allowed an extension of time, pursuant to s 62(3) of the Act, in which to request reconsideration of Comcare’s determination of 29 September 2017. However, to answer that question a threshold issue must be resolved, namely, was Ms Svatos’s email of 27 July 2018 itself a request for reconsideration of that determination? The answer to that question will determine whether Ms Svatos’s request was made 301 days or 618 days following the determination she wishes to be reconsidered.
LEGISLATION
Section 62 of the Act provides:
(1) A determining authority may, on its own motion:
(a) reconsider a determination made by it; or
(b)cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;
whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
(2)A request to a determining authority to reconsider a determination made by it may be made by:
(a) the claimant; or
(b) if the determination affects the Commonwealth--the Commonwealth; or
(c)if the determination affects a Commonwealth authority--that Commonwealth authority.
(2A) If a determining authority holds a licence under Part VIII that is subject to conditions requiring the determining authority to arrange for the reconsideration by another person of any determination made by the determining authority, nothing in subsection (1) or (2) is to be taken to derogate from that requirement.
(3) A request for reconsideration of a determination shall:
(a) set out the reasons for the request; and
(b)be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.
(4) On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.
(5) Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.
(6) The determining authority or person must decide a request made by a claimant to reconsider a determination within the period prescribed by the regulations.
PRINCIPLES GOVERNING AN EXTENSION OF TIME
The exercise of discretion in subsection 62(3)(b) of the Act is not conditioned on the existence of any state of mind on the part of the determining authority. The discretion does not provide for any explicit mandatory considerations to govern its exercise. However, despite these absences, both the Tribunal and Comcare (and in turn the Territory) must be guided by the considerable body of case law on the circumstances in which it is appropriate to exercise these and similar discretions provided in legislation. A discussion of that case law follows.
Section 29(7) of the Administrative Appeals Tribunal Act 1975 permits the Tribunal to grant an extension of time to lodge an application to review a reviewable decision if the Tribunal is satisfied that it is reasonable in all the circumstances to do so. The discretion granted to the Tribunal here is very wide, as is the discretion granted to Comcare by s 62(3) of its own Act to grant an extension of time for lodgement of a request for reconsideration.
In Re Hunter Valley Developments Pty Limited v Minister of Home Affairs and Environment [1984] FCA 176 Wilcox J articulated the foundational criteria to be considered in an application for an extension of time to seek judicial review under the Administrative Decisions (Judicial Review) Act 1975 of a decision (at [18]-[23]):
(a) 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 28 days is not to be ignored (Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at p 550) Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at p 416) It is a pre-condition 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 (Duff at p 485; Chapman v Reilly, Neaves J, 9 December 1983, not reported, at p 7).
(b) Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision maker aware that he contests the finality of the decision (who has not "rested on his rights": per Fisher J in Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283 at p 287) and a case where the decision maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v Allen (Morling J, 3 April 1984, not reported) at p 18 with Lucic at pp 414-415 and Hickey v Australian Telecommunications Commission (1983) 48 ALR 517 at p 519. The reasons for this distinction are not only the "need for finality in disputes" (see Lucic at p 410) but also the "fading from memory" problem referred to in Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528.
(c) 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: see Doyle at p 287, Duff at pp 484-485, Hickey at pp 525-527 and Wedesweiller at pp 533-534.
(d) However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas at p 18, Lucic at p 416, Hickey at p 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon p 550, Becerra pp12-13) or of established practices (Douglas p 19) is likely to prove fatal to the application.
(e) The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic p 417, Chapman p 6.
(f) Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the Court's discretion: Wedesweiller at pp 534-535.
These principles were further refined in Comcare v A'Hearn[1993] FCA 498. In that case, the Full Federal Court upheld the decision of a primary judge who upheld an appeal from the Tribunal, which had refused an application for an extension of time within which to review a decision of Comcare. The court found (at [11]) that:
In our view the primary judge was correct in concluding that the reasons for decision reveal an error of law on the part of the Tribunal. The error was that the Tribunal considered that what is found was an inexcusable delay on the part of the solicitors could not constitute an acceptable explanation for the delay in making the application.
The court added (at [15]):
We note that the Tribunal used language that might be taken to suggest that it is a pre-condition for success in such an application that an acceptable explanation for the delay must be given. Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential precondition…
The Federal Magistrates Court in Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109, summarised the new position following A’Hearn as follows (at [10]):
In the light of A'Hearn's case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it's fair and equitable in the circumstances to extend time. In the light of the decision in Ahearn's case it is useful to set out in modified form the relevant principles in relation to the exercise of the Court's discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows:
·There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The “prescribed period” of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at 550).
·It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal [1993] VicRp 21: (1992) 1 VR 297 at 302).
·Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff [1982] FCA 124: (1982) 42 ALR 283 at 287).
·Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p287).
·The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).
·The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417).
·Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528; [1983] FCA 94).
In Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449 at [48] the Federal Court condensed these considerations as:
·the explanation of the delay;
·any prejudice to the respondent; and
·whether the applicant has an arguable case.
CONTENTIONS
At the outset of the hearing, the position of the parties with respect to the extent of the delay which the Tribunal was considering was:
(a)Ms Svatos: a 618 day delay;
(b)the ACT: a 301 day delay.
By the end of the hearing, curiously but perhaps more logically, the parties had exchanged positions, that is, the ACT contended the delay was 618 days and Ms Svatos only 301 days. The contentions as set out below describe the parties’ final positions.
Ms Svatos’ contentions
Ms Svatos’s counsel contended that the delay in lodging a request for reconsideration was largely attributable to her former lawyers. The delay in question was not particularly long, and the prejudice to the Territory occasioned by that delay was illusionary. He argued that her substantive case had merit, and pointed to five letters or emails from former colleagues at Monash Primary School giving weight to her argument that she had been bullied or harassed by the school principal.
On the question of prejudice, counsel for Ms Svatos contended that the Tribunal should not place great weight on the email from the Chief Minister, Treasury and Economic Development Directorate suggesting HSVK’s unfitness for duty. He pointed out that the author of the email offers no medical insight into HSVK’s condition, and the opinion expressed was hearsay.
Counsel argued that her email of 27 July 2018 must be treated as a request for reconsideration of Comcare’s determination. As such, the period between the determination and the request for reconsideration was 301 days, most of which can be accounted for by the inaction of her previous solicitors.
The Territory’s Contentions
Ms Svatos has not provided an acceptable explanation of the delay in requesting reconsideration of the Determination
Counsel for the ACT submitted that Ms Svatos did not have an acceptable explanation for her delay in requesting reconsideration. He submitted that her email of 27 July 2018 demonstrates that she exercised a forensic choice not to pursue a reconsideration before then because she did not perceive that her best interests would be facilitated by seeking reconsideration while HSVK remained principal of Monash Primary School. In so characterising her motivation, the ACT cited the comments of Kiefel J (as her Honour then was) in Banks v Comcare Australia [1996] FCA 1490 at [14] where her Honour, construing legislative provisions analogous to s 62, said:
The expression "reasonable cause" has been held to refer to some act or omission which operated to prevent the giving of notice and one which, in the circumstances prevailing, is consistent with a reasonable standard of conduct, of such a nature that it might be expected to delay the giving of the necessary notice or claim... Here however it was not just the circumstances prevailing which operated to hinder or prevent the giving of notice, but a conscious decision made by the applicant in light of those circumstances and according to where it was perceived his best interests lay. It was a decision that a claim not be pursued as the applicant felt he was able to manage. There may be cases where a decision not to claim, for a time, is held to be justified and qualify as reasonable, for instance when it is made absent full knowledge though not amounting to a mistaken belief, a separate ground of excuse under the proviso. It is difficult however to accept that proviso (ii) was intended to encompass a position where a person might later change their mind about making the claim for the reason that it now suited them to do so.
[References omitted.]
The Territory also submitted that there was no compelling evidence that Ms Svatos’s mental ill health prevented her from prosecuting her claim in a timely way. Clinical notes from her GP’s surgery refer, on 28 November 2017, to her Gradually recovering from anxiety/depression and, on 4 May 2018, to her Recovering from bullying. The Tribunal was referred to Karam and Comcare [2020] AATA 64 where Senior Member Fairall refused an extension of time where he was not satisfied that the applicant’s fragile mental state was such as to deprive him of the capacity to deal with the procedures necessary to engage his rights of review (at [29]).
Ms Svatos rested on her rights to seek reconsideration
The ACT submitted that Ms Svatos rested on her rights by not proceeding with her claim after dispensing with her original solicitors. She did so, counsel asserted, because she was cognisant of her right to seek review of Comcare’s determination (as she admitted in her statement), but failed to act either after April 2018 or even after July 2018 when she failed to respond to Comcare’s demand that she provide further information about her request for reconsideration.
The Territory is, and would be, prejudiced in the circumstances
With the passage of time since the original injury arose in early 2017, the Territory would face difficulties in obtaining relevant evidence in relation to the injury, it was submitted. Witness statements would be important given that the reasonable administrative action exclusion in s 5A of the Act would be likely to feature in any reconsideration of Ms Svatos’s claim.
An issue of “presumptive prejudice” has potential to arise whenever there is significant delay in prosecuting a claim. This was referred to by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 in these terms (at 551):
The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
In the present proceedings, the ACT alleged actual prejudice, in that it appeared that there would be difficulty in obtaining evidence from HSVK, who was totally unfit for work as of February 2020.
It was also observed by counsel for the Territory that his client would be prejudiced by the fact that any mental injury which Ms Svatos may in fact have suffered through employment has not been treated or managed by Comcare/the ACT in a timely way after being sustained.
Ms Svatos’s case is prima facie weak
It was contended that Ms Svatos’s case, if it were allowed to proceed, is a weak one. Her claim for a mental injury occurred against the backdrop of informal counselling of her by the school in relation to perceived inadequacies in her work performance. The Tribunal was taken to a letter of April 2017 by the chair of the school board, complaining about Ms Svatos’s financial management practices and competency. The Tribunal was also taken to an email dated 14 February 2017 to HSVK from the deputy principal, Ms Jankovic, outlining a list of apparent Concerns with Ms Svatos’s performance.
In this context, it was put to the Tribunal that the exclusion in s 5A relating to reasonable administrative action would be available to the Territory to resist any claim for compensation Ms Svatos might make. Counsel also referred to some evidence in the tendered clinical notes and another document suggesting possible personal causes of stress in her life, raising, he said, the prospect that her claim for compensation may fail pursuant to s 7(7) of the Act on the basis that she had wilfully and falsely misrepresented that she had not previously suffered from a mental injury of this kind.
Granting Ms Svatos an extension of time is likely to lead to unfairness and uncertainty as to the appropriate standard of case that warrants a person being given ‘further’ time to seek reconsideration
In advancing this proposition the Territory relied on the comments of Deputy President Boyle in Thompson and Comcare [2019] AATA 714 at [166]:
The Respondent submits that the public interest and the interest of those employees who comply with the prescribed time limits, are unsettled by perceptions of unfairness and uncertainty if an extension of time is granted where the justice of the case does not permit the granting of an extension of time. Granting the extension of time in this case would be unfair to other Applicants who have pursued their right to review within the prescribed period. The Tribunal agrees.
The Tribunal was also referred to the observation of McHugh J in Taylor at 553:
Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible. [Reference omitted.]
CONSIDERATION
The burden falls on Ms Svatos to satisfy the Tribunal that it is appropriate to grant an extension of time for her to lodge a request for reconsideration; see HcHugh J in Taylor at 553-4.
Was Ms Svatos’s email of 27 July 2018 a request for reconsideration?
Without doubt, the answer to this question must be yes.
Section 62(3) provides:
A request for reconsideration of a determination shall:
(a) set out the reasons for the request; and
(b)be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.
Ms Svatos’s email asked for a review of my compensation case. Although it did not use the word reconsideration, it is plain that this was what she was requesting. Indeed, in its reply Comcare acknowledged that her email had been requesting a reconsideration. The subsection further requires that the request must set out the reasons for the request. Ms Svatos’s email gave reasons; the email may fairly be read as requesting reconsideration because she had new evidence to support her claim, that is, the five supportive statements from former colleagues which she attached.
The ACT argued that Ms Svatos’s email did not constitute a valid request for reconsideration in that it failed to comply with paragraph 62(3)(b), that is, it was not submitted within 30 days of the determination, nor was it submitted within a further period that Comcare had allowed for the lodging of such a request. This argument appears to contend that a request for, and the grant of, an extension of time must precede the lodging of a request for an extension of time.
There is no basis in the language of the subsection for such a construction. Had it been the legislature’s intent that an extension of time must be granted before a request for reconsideration can be lodged, the subsection would have read “within such further period (if any) as the determining authority, either before or after the expiration of that period, has allowed”, or to similar effect. I also note, based on other cases brought before the Tribunal, that it is Comcare’s practice to treat a late request for reconsideration as a request, in addition, for an extension of time in which to do so.
Similarly, the email here must be treated as both a request for reconsideration and a request for an extension of time in which to do so. In those circumstances, it was not open to Comcare to refuse to accept the request for reconsideration or to attach preconditions on its reconsideration. Subsection (4) provides that Comcare, on receiving a request, shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated.
Nor does the Tribunal accept that the request could be ignored because reasons for the extension of time had not been provided. There is no statutory basis for requiring such reasons as a precondition of reconsideration. In any case, Ms Svatos did provide reasons for seeking an extension of time: to say, as she did, that the Principal is no longer at Monash Primary School should reasonably have been taken by Comcare to mean that the principal’s presence at the school had inhibited her from pursuing her claim. Similarly the phrase I now feel stronger to follow-up my denied compensation claim must surely have been a reference to medical or psychological issues inhibiting earlier action on her claim. These may or may not have been regarded by Comcare as strong reasons for the delay, but they were reasons, and they should have triggered a decision on an extension of time and on the request for reconsideration. It was entitled to seek some clarification of the details of Ms Svatos’s request, but it was not entitled to ignore the request in the absence of those details.
Since Ms Svatos’s email of 27 July 2018 must be treated as a request for reconsideration, this delineates the period of delay which the Tribunal must consider. That is, Comcare made its initial determination denying liability on 29 September 2017 and Ms Svatos sought reconsideration of that determination on 27 July 2018 – an interval of 301 days. Ms Svatos’s inaction on her claim in the year or so following 27 July 2018 is, in the Tribunal’s opinion, irrelevant in these considerations. Comcare (and the Territory as its successor) was constructively on notice as at 27 July 2018 that she wished to reopen her claim.
Should Ms Svatos be allowed an extension of time pursuant to s 62(3)?
A delay of 301 days is a substantial delay, and good reasons would need to be evident to warrant the Tribunal setting aside the statutory time limit and granting an extension of time in these circumstances. Extensions of time beyond six months under this Act and equivalent legislation are relatively rare: Noonan and Comcare [2019] AATA 515 at [27].
One such good reason, however, is an inexcusable delay on the part of [an applicant’s] solicitors: A’Hearn at [11]. As the court in Phillips at [10] made clear, it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client.
The Territory submitted that a little more perspective on the decision in A’Hearn is provided by Maric v Comcare (1993) 40 FCR 244, where O’Loughlin J made this observation about a delay of nearly 3 years attributable to an applicant’s solicitor:
If it be said that it is not fair that the applicant should suffer from the transgressions of his legal advisers, then likewise it must also be said that it is not fair that the respondent should suffer from those same transgressions. (at 250)
Counsel for the Territory asserted that Maric stands for the proposition that a party cannot simply blame their lawyers for delay, but must exercise a degree of individual responsibility for the conduct of their claim. In the present proceedings, Ms Svatos had failed to exercise that responsibility in respect of her own claim, by failing to hold her solicitors to account for their delay in prosecuting it, he said.
While the sentiment expressed by O’Loughlin J in Maric must, of course, be regarded as sound law, I think that the Territory places more weight on the decision than it can reasonably bear. In that case the Federal Court was unwilling to absolve an applicant of responsibility for an egregious delay of almost three years on the part of his lawyer; the case thus supports the proposition that some diligence must be exercised by a client in oversighting progress of the matter entrusted to a legal advisor. However, A’Hearn remains the starting point for consideration of delays caused by the failings of legal advisers, that is, that such failures should not be visited on the prospects of their client. The proposition has its limits. Maric may be read as qualifying that principle to the extent that responsibility for delay may transfer to a client in circumstances where a reasonable person should have discerned that their lawyer had “dropped the ball” or was no longer competent to undertake the task. Read in this way, there is no inconsistency between Maric and A’Hearn though, if there is, the Tribunal must clearly follow the latter, being a decision of the Full Federal Court.
The facts in the present proceedings cannot be said to be comparable in any way with those in Maric. Ms Svatos apparently withdrew her lawyers’ instructions when no progress was forthcoming after about seven months. During that period, the lawyers had engaged in correspondence with Comcare. In January and April 2018 she received communications from the lawyers, consistent with their attending to her claim. In April 2018 she was advised that a barrister had been engaged for that purpose. She was not at any time informed that the lawyers had failed to lodge a request for reconsideration with Comcare. Finally, in or about May 2018, she came to the view that the lawyers were not giving her claim diligent attention. No criticism could be levelled at her for entrusting her claim to them for those seven months, nor was her withdrawal of their instructions dilatory. Such an approach is consistent with the Tribunal’s decision in Saffioti and Comcare [2018] AATA 43 where the applicant withdrew instructions from apparently non-performing solicitors after three years, and revived her claim some four months later. Deputy President Constance allowed an extension of time in those circumstances.
Counsel for the ACT submitted that the documents available to the Tribunal demonstrated a lack of individual responsibility on the part of Ms Svatos with respect to her dealings with her solicitors. I do not think that claim can reasonably be made out, particularly where Ms Svatos was not cross-examined as to those matters.
It is convenient to think of the effect of cases such as A’Hearn and Saffioti as requiring the pausing of the stopwatch on the question of delay while the matter is in the care of solicitors. Since Ms Svatos’s lawyers were engaged before Comcare’s determination refusing liability, it is reasonable, therefore, to construe the relevant delay here as being the period between apparently dismissing her lawyers in May 2018 and seeking a request for reconsideration at her own initiative in July 2018 – an effective period of some two months. (Arguably, of course, the period of delay is only one month, given that she had 30 days following the determination to lodge her request for reconsideration.)
There are many instances of the Tribunal granting extensions of time to lodge a claim where the delay in question is only two months or so. However, the considerations listed in Hunter Valley Developments must still be assessed to determine if an extension is appropriate.
Reasonable explanation for the delay?
The Territory contended that Ms Svatos had not offered a reasonable explanation for her delay. As already indicated, the relevant delay to be considered here is the delay from May to July 2018. The Territory argued that the evidence of mental illness, inhibiting her capacity to advance her claim, was weak. It argued that the clinical records suggest that she was recovering from anxiety and depression during this period, but not seriously afflicted by that condition. As such the Tribunal could not be satisfied that her fragile mental state was such as to deprive her of the capacity to deal with the procedures necessary to engage [her] rights of review: Karam at [29].
I agree that the evidence of mental incapacity at this level is not compelling here, but there is some evidence to that effect, and I am prepared to give her the benefit of the doubt. In August 2017 Dr Takyar diagnosed a moderate to severe grade adjustment disorder with mixed anxiety and depressed mood. Comcare’s determination of September 2017 concluded that she suffered an adjustment disorder with mixed anxiety and depressed mood at about that time. In May 2019 she consulted her doctor for Depression/anxiety. In the interval between August 2017 and May 2019 there is a paucity of discussion in her medical records of her mental state, although on 4 May 2018 she consulted her GP who noted a history of Recovering from bullying. Strangely, the clinical record provides no description of her symptoms, diagnosis or treatment on that day. While it is quite possible that she was affected by mental illness in 2017 and 2019, but not in 2018, it is also quite plausible that the condition waxed and waned, and exercised a degree of incapacity over her at times without being clinically tracked. Her email of 27 July 2018 asserts that I now feel stronger to pursue the claim, implying that there were enervating factors in her life prior to this point.
While it would have been preferable to clarify this question with Ms Svatos from the witness box, it was the decision of both sides not to call her, and therefore the Tribunal must make its decision based on a somewhat incomplete picture. Taking into account that there is no rule that [an acceptable] explanation is an essential precondition for the grant of an extension of time (A’Hearn at [15]), the Tribunal is prepared to accept the submission of her counsel that the condition which she evidently suffered in the period 2017 to 2019 in fact inhibited her from advancing her claim in the relevant period May to July 2018.
Comcare further argued that her email of 27 July 2018 demonstrates that she exercised a forensic choice to defer seeking a reconsideration until then, and that this could not constitute a reasonable explanation for delay (see Banks at [14]). This argument characterises her reference to HSVK no longer being at the school is showing that she thought her claim would be strategically strengthened now that he was not around to contradict it. However, her reference to HSVK is also consistent with the proposition that she carried psychological scars from her previous dealings with him, and felt better able to take her case up now that he had left the school.
Does Ms Svatos have an arguable case?
In the Tribunal’s view, even on a fairly broad-brush assessment (see Jackamarra v Krakouer [1998] HCA 27 at [9]) Ms Svatos does have an arguable substantive case. Comcare’s original determination accepted that she suffered from a work-related psychological injury. The seminal question on which her claim will rise or fall is whether employer actions in response to apparent deficiencies in her work performance constitute reasonable administrative action (s 5A). The ACT took the Tribunal to several pieces of evidence suggesting that there were such deficiencies in her performance. Equally, the five statements attached to Ms Svatos’s email of 27 July 2018 from various former colleagues, supporting the assertion that there were deficiencies in the disciplinary approach of HSVK, suggest that the reasonableness of the school’s response to this will be a live and contested issue in any litigation. As such the role of reasonable administrative action in the resolution of the claim is far from settled.
Reference was made to Ms Svatos’s claim being disbarred by operation of s 7(7) of the Act. This issue was touched on only briefly in the hearing, and as such it is difficult to comment conclusively on the role it might play in proceedings. The Tribunal would note only that, on the limited insight it was afforded to this question, the Territory will face a significant challenge in advancing this argument.
Is the Territory prejudiced by an extension of time?
The Tribunal considers that there is likely to be a measure of actual prejudice to the Territory if Ms Svatos’s claim is allowed to proceed. This actual prejudice arises from the evidence that HSVK, apparently a key witness in the Territory’s assertion that Ms Svatos was injured by reasonable administrative action, was totally unfit for work as of February 2020. The unavailability of a key witness, in circumstances where the case will turn on the nature and quality of his conduct vis-à-vis the applicant, would put the Territory at some disadvantage.
While prejudice to the respondent … occasioned by the delay is a material factor militating against the grant of an extension (Hunter Valley Developments at [20]), it is not automatically fatal to such a grant. In the full circumstances of this case, and on balance, the Tribunal considers that this consideration should not outweigh other factors favouring the grant of an extension, for the following reasons.
As counsel for Ms Svatos pointed out, the email advising of HSVK’s indisposition offers no medical insight into his condition, and in particular does not explain whether his condition is physical or psychological, or whether it is likely to be temporary or ongoing. It is therefore not clear whether HSVK might yet be available to give evidence in the future. Similarly, it is difficult to say whether any prejudice to the ACT by virtue of him being indisposed has been occasioned by Ms Svatos’s delay. The Tribunal notes that, had Ms Svatos lodged her request for reconsideration in May 2018, and had Comcare affirmed the earlier determination, it is reasonably likely that the Tribunal would have been conducting a merits review hearing at about this time, when HSVK would have been indisposed and the ACT prejudiced through no fault of Ms Svatos. It may also be presumed that evidence could be led from other participants in the affairs of the school at that time – for example, Ms Jankovic, the then Deputy Principal – in support of the ACT’s case.
CONCLUSION
In cases where an applicant has sought an extension of time of less than three months, the Tribunal has generally granted such an extension, unless the applicant’s substantive case is very weak (for example, Armitage and Secretary, Department of Social Services [2019] AATA 5659; Weston and Secretary, Department of Social Services [2020] AATA 113; Lazos and Secretary, Department of Social Services [2019] AATA 4542; Rahimzadeh and Secretary, Department of Social Services [2019] AATA 3201; Muller and Child Support Registrar [2019] AATA 4356; Nalder and Child Support Registrar [2019] AATA 5518; Prestige Technical Training Institute Pty Ltd and Australian Skills Quality Authority [2019] AATA 460). An exception to this pattern occurred in Karam, where Senior Member Fairhall considered conflicting psychological evidence about the applicant’s degree of incapacity and concluded that he had not provided a satisfactory explanation for the delay there of 84 days. I would take a different approach in the present case, where the delay is shorter and the psychological evidence, though less extensive, does suggest a measure of incapacity on Ms Svatos’s part.
Accordingly, the Tribunal sets aside the reviewable decision of 16 July 2019 of the Territory and, in substitution, determines that Ms Svatos be allowed an extension of time under s 62(3) to lodge her request for reconsideration to 27 July 2018. The effect of this decision is that the Territory must now consider the request of reconsideration made by Ms Svatos on that day.
I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries AO.
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Associate
Dated: 14 May 2020
Date(s) of hearing: 25 March 2020 Counsel for Ms Svatos: A Anforth Solicitors for Ms Svatos: David Healey Solicitors Counsel for the Territory: P Woulfe Solicitors for the Territory: McInnes Wilson Lawyers
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