Svatos and Australian Capital Territory (Compensation)

This matter concerned an application by Ms Svatos for an extension of time to seek reconsideration of a Comcare determination that declined her claim for compensation for mixed anxiety and depression, allegedly arising from workplace bullying. The Australian Capital Territory (the Territory) opposed the application, arguing prejudice due to the delay and the weakness of Ms Svatos's underlying claim. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether to grant an extension of time under section 62 of the *Safety, Rehabilitation and Compensation Act 1988* (the Act).

The Tribunal considered several legal issues. Firstly, it had to assess whether Ms Svatos had provided a sufficient explanation for the delay in seeking reconsideration of Comcare's decision. This involved evaluating the impact of her alleged mental health condition and difficulties with her legal representatives on her ability to pursue her claim in a timely manner. Secondly, the Tribunal was required to weigh the prejudice that the Territory might suffer due to the delay against the factors favouring the grant of an extension, particularly the potential merits of Ms Svatos's claim. The Tribunal also considered the general approach to granting extensions of time for claims involving mental health conditions and the length of the delay.

In its reasoning, the Tribunal acknowledged that prejudice to the respondent is a material factor against granting an extension but is not automatically fatal. It found that the evidence regarding the unavailability of a key witness for the Territory was not conclusive and that any prejudice might have arisen regardless of Ms Svatos's delay. The Tribunal also noted that the delay was less than three months and that the psychological evidence, while not extensive, suggested a degree of incapacity on Ms Svatos's part. Applying these considerations, the Tribunal concluded that the factors favouring the grant of an extension outweighed the prejudice to the Territory.

Consequently, the Tribunal set aside the reviewable decision of 16 July 2019 and substituted a determination allowing Ms Svatos an extension of time to lodge her request for reconsideration to 27 July 2018. This outcome meant that the Territory was required to consider Ms Svatos's request for reconsideration.