Taylor and Comcare (Compensation)

[2018] AATA 1354

Taylor and Comcare (Compensation) [2018] AATA 1354 (23 May 2018)

Division:GENERAL DIVISION

File Number:           2016/5012

Re:Lee Taylor

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:23 May 2018

Place:Sydney

The Tribunal orders that the Comcare decision of 12 September 2017 be set aside and the decision of 31 May 2016 be remitted for reconsideration.

....................................[sgd]..................................

Chris Puplick AM, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time decision – reasons for delay – prejudice to the Respondent – mere absence of prejudice not enough to justify granting extension – merits of the substantive application – considerations of fairness – decision set aside and remitted.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, s 14

CASES

Berkelaar v Comcare [1997] AATA 12015

Hillman v Australian Postal Corporation [2017] AATA 1411

Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment [1984] 3 FCR 344

REASONS FOR DECISION

Chris Puplick AM, Senior Member

23 May 2018

1. On 24 April 2018, I published my reasons for allowing an application by Mr Lee Taylor (the Applicant) to review a decision made by Comcare to be accepted outside the statutory time for such applications to be lodged.[1]

   [1] Taylor v Comcare [2018] AATA 972 (24 April 2018)

2. Mr Taylor’s appeal was against a decision of Comcare made on 12 September 2017 rejecting his application for a review of a primary determination made by Comcare on 31 May 2016.

3. In my decision of 24 April, I set out in detail, my reasons for allowing an extension of time for an application for review of the 12 September decision to be made.

4. Applying the principles and the tests set out by Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment[2], I found that the Applicant had established sufficient reasons for the delay in making the review application; that there would be no unacceptable prejudice to the Respondent in allowing the extension; that the Applicant had done more than rest on his rights; that there was no prejudice to members of the general public or a lack of fairness between the Applicant and other persons and that there were, prima facie, an argument on the merits being advance in support of the Applicant’s case.

   [2] [1984] 3 FCR 344

5. On 21 May 2018, the matter came before the Tribunal for a hearing on the substantive merits of the application for review of the 12 September decision.

6. The Applicant, in adopting the decision of the Tribunal of 24 April, pressed the case that the matter of reasons for delay having been determined by the Tribunal already, attention should be focussed on the merits of the application.

7. The decision of 12 September 2017[3] rejected a request for reconsideration of a Comcare decision of 31 May 2016. That decision, in turn, was based upon Comcare’s assessment that the Applicant’s claim for the following: “adjustment disorder, anxiety and depression under section 14 of the Safety, Rehabilitation and Compensation Act 1988” should be rejected because the Applicant failed to provide “medical evidence to suggest you have a condition of adjustment disorder, anxiety and depression.”[4]

   [3] Tribunal Documents pages [8]-[9]

   [4] Tribunal Documents pages [77]-[80]

8. On 14 February 2017, the Applicant lodged with the Australian Government Solicitor[5] (copied to the Tribunal on 16 February 2017) a psychiatric report prepared by Dr Anthony Dinnen (dated 23 January 2017) in support of the Applicant’s claim for secondary psychological injury.[6]

   [5] It was an error on the part of the Applicant’s solicitor to lodge this with the AGS rather than directly with the Respondent. This matter was considered in the decision of 24 April 2018.

   [6] Tribunal Documents pages [98]-[103]

9. The Respondent, in resisting the application for review of the decision drew the attention of the Tribunal to the Tribunal’s decision in Hillman v Australian Postal Corporation[7] which set out four tests which it said should be met in deciding whether to grant a review of a decision where the application was made out of time.

   [7] [2017] AATA 1411

10. Those four grounds, which are in many ways merely a refinement of some of the principles laid down in Hunter Valley, are:

    ·Delay

    ·Prejudice

    ·Merits

    ·Fairness.

11. The Respondent particularly pleaded that it would suffer prejudice were the application to be allowed because of the time which might have elapsed since the matter was first subject to consideration by Comcare following the original claim which was lodged in 2004.

12. Addressing the matters raised in Hillman:

    1.The Tribunal in its decision of 24 April 2018 dealt at length with the reasons for the delay in this matter when assessing whether or not to grant an extension of time for an appeal to be lodged. The same matters are before the Tribunal in this instance and it comes to the same conclusion: namely that the reasons advanced for the delay were and are acceptable for the matter to proceed.

    2.In the decision of 24 April 2018, the Tribunal noted the authority in Berkelaar v Comcare[8] for accepting appeals which may require Comcare to stretch back in time to find the necessary records and documentation. In this instance, the Respondent argued that the time delay might amount to something in the order of 7 years but there is no corroborative evidence that such a time framework would necessarily be engaged. Similarly, the claim that relevant records might have been destroyed, which was characterised by the Applicant as “speculative prejudice” cannot be sustained in the absence of corroboration. The Tribunal notes the Respondent’s claim that it is entitled to expect to be able to achieve some finality in this matter is not without merit, but that the claims of the Applicant to have all matters related to the claim finalised together and with some clear end point are equally valid.[9]

    3.I have already made it clear that the Tribunal accepts the evidence of Dr Dinnen as establishing a prime facie case in support of the merits of the application. This is neither the time nor the place for this matter to be determined finally – that is a matter which can be determined only at a full hearing on the merits of the whole case.

    4.In Hillman, the Tribunal enlivened the aspect of fairness because it found that the “explanations advanced by her for that delay to be unpersuasive.”[10] By contrast, in this case I have already determined that explanations for the delay in question were persuasive.

    [8] [1997] AATA 12015

    [9] See comments by McHugh J in Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541 at [551]. The Respondent in the High Court case is not the same applicant as in this present matter.

    [10] Hillman v Australian Postal Corporation [2017]AATA 1411 at [37]

13. Thus, for the reasons given in my decision of 24 April 2018, on which I continue to rely, and for the reasons outlined above after hearing from both parties on the substantive merits of the application for review, the Tribunal orders that the Comcare decision of 12 September 2017 be set aside and the decision of 31 May 2016 be remitted for reconsideration.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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Associate

Dated: 23 May 2018

Date of hearing:	21 May 2018
Counsel for the Applicant:	Mr J Mrsic
Solicitors for the Respondent:	Ms B Audsley, Australian Government Solicitor