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

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)
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.
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.
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
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Taylor and Comcare (Compensation)

Details

AGLC: Taylor and Comcare (Compensation) [2018] AATA 1354
Case: [2018] AATA 1354
Decision Date: 23 May 2018

CaseChat Overview and Summary

This matter concerned an appeal by Mr Taylor against a decision of the Administrative Appeals Tribunal (AAT) which had refused to grant him an extension of time to lodge an appeal against a determination made by Comcare. The AAT had previously refused Mr Taylor's application for an extension of time, and it was this refusal that Mr Taylor sought to have reviewed.

The primary legal issue before the Tribunal was whether the AAT had erred in law in its decision to refuse Mr Taylor an extension of time to lodge his appeal. Specifically, the Tribunal was required to consider whether the AAT had given sufficient weight to the relevant factors, including the reasons for the delay, the merits of the substantive application, and the prejudice to Comcare, in determining whether to grant the extension.

The Tribunal found that the AAT had erred in law by failing to adequately consider the merits of Mr Taylor's substantive application and by placing undue emphasis on the absence of prejudice to Comcare. The Tribunal reiterated the principle that the mere absence of prejudice to the respondent is not sufficient in itself to justify granting an extension of time, and that a proper consideration of fairness requires a balanced assessment of all relevant factors. The Tribunal concluded that the AAT's decision was affected by an error of law.

Consequently, the Tribunal set aside the AAT's decision and remitted the application for an extension of time to the AAT for redetermination according to law.

Orders