Taylor and Comcare (Compensation)

[2018] AATA 972

Taylor and Comcare (Compensation) [2018] AATA 972 (24 April 2018)

Division:GENERAL DIVISION

File Number(s):      2018/1938

Re:Taylor

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:24 April 2018

Place:Sydney

Pursuant to section 29(7) of the Administrative Appeals Tribunal Act1975 the Tribunal extends the time for the making of an application for review of the decision of the Respondent, dated 12 September 2017, to 11 April 2018.

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

Chris Puplick AM, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time application – acceptable explanation of the delay – fair and equitable in the circumstances – rested on his rights – prejudice to the respondent caused by the delay – prejudice as a result of the extension – merits of the substantial application – considerations of fairness as between the applicant and other persons

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Compensation and Rehabilitation Act 1988 (Cth)

CASES

Berkelaar and Comcare (1997) AATA 12015
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Comcare v A’Hearn (1993) 45 FCR 441
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344
Kim and Minister for Immigration and Border Protection 920180 AATA 155
O’Gorman and Comcare (Compensation) [2017] AATA 2192

Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27

SECONDARY MATERIALS

Sutherland, Peter and John Ballard, Annotated Safety, Rehabilitation and Compensation Act 1988, 10^th ed., Federation Press, Leichardt, 2014

REASONS FOR DECISION

Chris Puplick AM, Senior Member

24 April 2018

THE APPLICATION

1. This is an application by Mr Lee Taylor (the Applicant) made thorough his solicitors for an extension of time (EOT) to lodge an appeal against a decision by Comcare (the Respondent) made on 12 September 2017.

   THE FACTS

2. This application is related to a series of other claims between Mr Taylor and Comcare which have been on foot for several years.  Specific to this application, however, are the following  relevant facts:

   ·On 19 April 2016 the Applicant in person lodged a compensation claim form in respect of an adjustment disorder, anxiety and depression arising from a previous physical injury suffered at work

   ·On 31 May 2016 this claim was declined by Comcare

   ·The Applicant personally sought an extension of time in order to lodge an appeal against the 31 May 2016 decision. This was granted and the time was extended to 31 July 2016

   ·The matter came before this Tribunal’s Conference Registrars on several occasions with the Applicant now being represented by his solicitors. During the course of these Registrar hearings the Applicant (through his solicitors) indicated that a claim for secondary psychological injury would likely be forthcoming. In support of this, the Applicant lodged a copy of a psychiatrist report (Dr Anthony Dinnen, dated 23 January 2017) with the Australian Government Solicitor (AGS) on 14 February 2017 copied to the Tribunal on 16 February 2016

   ·On 7 March 2017 the Applicant’s solicitors requested (through the AGS) a review of Comcare’s decision of 31 May 2016

   ·On 4 August 2017 the Applicant’s solicitors wrote to Comcare serving them with a compensation claim and seeking a determination of same. The report of the psychiatrist previously served on the AGS was supplied to Comcare

   ·On 8 August 2017 Comcare replied to the letter of 4 August 2017 attaching a copy of their determination of 31 May 2016 and indicated that the claim for secondary psychological injury had been rejected

   ·On 14 August 2017 the Applicant’s solicitors wrote again to Comcare asserting that the determination of 31 May 2016 was defective in that the matters related to which they were seeking determination arise from their letter of 4 August and the attached report of the psychiatrist. The letter requested a review of Comcare’s decision of 8 August 2017

   ·On 12 September 2017 Comcare responded, indicating that the letter of 8 August 2017 was not to be taken as a determination and that further it (Comcare) regarded the letter of 4 August 2017 to be no more than a request for a reconsideration of the determination of 31 May 2016

   ·In relation to that, Comcare advised that the request for reconsideration (of the decision of 31 May 2016) was out of time and on that basis declined to take any further action

   ·At the time of this correspondence, the Tribunal had assigned a date (21-23 May 2018) for hearing of various claims by Mr Taylor against Comcare. As a result of consultation with his solicitors, the Applicant lodged a request with the Tribunal on 23 March 2018, requesting that the hearings scheduled for May be vacated. This request was opposed by Comcare, who notified parties to that effect on 5 April 2018

   ·On 11 April the Tribunal convened a Directions Hearing to seek common ground between the parties as to a way to proceed. As no such common ground could be established at the hearing, the Applicant’s solicitors indicated that they would lodge an Application for Review and an Application for Extension of Time. Both were lodged on the same day

   ·However, it was agreed between the parties that under the Safety, Compensation and Rehabilitation Act 1988, the time for the lodgement of an appeal against the determination of 12 September 2017 expired on 14 November 2017

   ·On 17 April the Tribunal heard from both parties with the Applicant represented by Mr John Mrsic  and the Respondent by Mr Bradley Dean

   ·At the conclusion of the hearing the Tribunal adjourned and indicated that its decision on the EOT application would be delivered in writing with the course of the following few days. The decision of the Tribunal follows

   THE LEGISLATIVE FRAMEWORK

3. As this matter involves a request for an EOT, it is appropriate to start by noting that most legislative schemes which provide for review of administrative decisions impose some time limits or requirements on the lodging of such applications.

4. The rationale for such limitations is set out with pellucid clarity by McHugh J in the High Court case of Brisbane South Regional Health Authority v Taylor.[1] His Honour gave four reasons why such limitations are an important part of the legal process. He noted that:

   First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.

   The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.

   [1] (1996) 186 CLR 541 at [552]-[553]. Footnotes and citations omitted. The Respondent in the High Court case is not related to the Applicant in the present proceedings.

5. His Honour also noted that:

   An applicant for an extension of time who satisfies those conditions [i.e. the conditions laid down in the relevant Act] is entitled to ask the court to exercise its discretion in his or her favour. But the applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.[2]

   [2] Ibid at [551].

6. It is generally accepted that the “check-list” outlined by Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment[3] should be taken as the guide by this Tribunal in determining EOT matters.

   [3] (1984) 3 FCR 344.

7. That list provides as follows:

   ·an applicant must show an “acceptable explanation of the delay” and this it is “fair and equitable in the circumstances” to extend time;

   ·a distinction is to be made between an applicant who has “rested on his rights” and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;

   ·any prejudice to the respondent caused by the delay;

   ·whether the respondent or the general public would suffer any prejudice as a result of the extension;

   ·the merits of the substantial application; and

   ·“considerations of fairness as between the applicant and other persons” in a similar position.

8. In addition to the above, this Tribunal has also given consideration to the length of the delay in question; the Applicant’s knowledge of his appeal rights and the availability of alternative avenues of relief should the original EOT not be granted.[4]

   [4] Kim and Minister for Immigration and Border Protection 920180 AATA 155 at [20].

9. Equally, this Tribunal has noted that the check-list items in Hunter Valley “are not be applied mechanically” and that “an acceptable explanation for the delay” is not “an essential precondition to the exercise of that discretion although it is to be expected that such an explanation will normally be given.”[5]

   [5] O’Gorman and Comcare (Compensation) [2017] AATA 2192 at [13], citing Comcare v A’Hearn (1993) 45 FCR 441.

10. Wilcox J did, however, warn that:

    Although the section [s 11 of the Administrative Decisions (Judicial Review) Act] 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”….. is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 530). Indeed it is the prima facie rule that proceedings outside that period will not be entertained (Lucic v Nolan (1962) 45 ALR 411 at 416). It is a precondition 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 v Freijah (1982) 43 ALR 479 at 485; Chapman v Reilly, Neaves J, 9 December 1983, not reported at p. 7)[6]

    [6] Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344 at [348].

11. The Administrative Appeals Tribunal Act 1975 (Cth) itself, when empowering the Tribunal to grant extensions of time, makes it clear that these should be granted where “it is reasonable in all the circumstances to do so” (s 29(7)). The Tribunal must, as a result, consider this matter after considering the totality of all the circumstances arising.

    CONSIDERATIONS

12. I turn now to examine the facts in this application as against the check-list of matters to which consideration should be given.

    (a) The reasons for the delay and the length of the delay

13. As agreed between the parties, the expiry date for the lodging of an appeal against the decision of 12 September 2017 was 14 November 2017. The application before the Tribunal is dated 11 April 2018. That is, there has been a delay of almost five months.

14. The Applicant claims that the principal reason for this delay was a failure on the part of the Applicant’s solicitors to deal with the matter in a timely fashion.

15. The Respondent’s letter, addressed to the Applicant’s solicitors, dated 12 September 2017, itself deals with an out of time matter. In short, the letter of 12 September 2017 refers to the Applicant’s letter of 14 August 2017 and does not interpret this as an application for a review of any “decision” made on 8 August 2017.It asserts that the 8 August 2017 letter was itself not a decision, but it was a request for a re-determination of the original decision made on 31 May 2016, which declined liability for the claim of April 2016. As such, the 12 September 2017 letter claimed that the request was more than twelve months outside the time agreed for this matter to be reviewed, with an extension of time having already been granted once in this matter.

16. Furthermore, the Respondent indicated that it had acknowledged the Applicant’s solicitor’s letter of 7 March 2017 requesting a reconsideration of the 31 May 2016 decision and had on 9 March 2017 written to the Applicant’s solicitor requesting an explanation for the delay in making such an application, but that no response was ever received. On the basis of this request in March 2017, being considerably outside the agreed timetable for lodging of any appeal (by 31 July 2016), Comcare rejected the application as the appeal was out of time.

17. The Applicant’s Counsel responded to this by casting the burden of failure onto the solicitor who previously had carriage of the Applicant’s case. In oral presentation to the Tribunal, Counsel for the Applicant described the compensation jurisdiction as “Kafkaesque” and all but unintelligible except to specialists in the field. Counsel described the solicitor in question as akin to “an inexperienced chess player” finding himself “up against Gary Kasparov” – by whom he meant the experienced officers of Comcare.

18. The Respondent’s representative intervened to say that there was no basis for the characterisation of the solicitor in question as somehow not up to the task but the Applicant’s Counsel pressed the point of the solicitor’s inability to understand the nature of the proceedings in question, pointing out that correspondence which should have been sent to Comcare was in fact sent to the Australian Government Solicitor. He further drew attention to an attachment to the Review Application, being a statement from the solicitor in question noting that his files apparently did not contain a copy of the respondent’s letter of 9 March 2017 in response to his of two days earlier.

19. It appears that delays by solicitors are not unknown when it comes to determining matters of out of time applications.

20. In Duff[7] the Federal Court held that:

    It is well established that delays by a solicitor are visited upon the client when those delays are relevant to limitation periods or matters involving want of prosecution.[8]

    [7] Duff and Others v Freijah and Others (1982) 43 ALR 479.

    [8] Ibid at [484].

21. The proceedings in A’Hearn again involved a delay on the part of the Applicant’s solicitors to lodge necessary proceedings on time. However, in this instance the court ruled that:

    A consistent thread thus revealed in the reasoning is that the tribunal considered that delays by a solicitor were to be visited upon a client. Thus, despite the inexcusable delay on the solicitors’ part that the tribunal found, it was able to say there was “no acceptable explanation whatsoever” for the delay. This approach cannot stand in the light of modern authorities such as Jess v Scott (1986) 12 FCR 187, see also Lighthouse Philatelic Pty Ltd v Federal Commissioner of Taxation (1991) 132 FCR 148 at 156.[9]

    [9] Comcare v A’Hearn (1993) 45 FCR 441 at [443].

22. It should be noted that the matter in Jess involved a delay of only one day outside the prescribed time limits.

23. Thus, it appears that the principal reason adduced for the delay in making the application is the failure on the part of the Applicant’s solicitor to respond to Comcare’s letter of 7 March 2017. Not that this necessarily would have resulted in the matter being dealt with, it would still have been open to Comcare to reject the application as out of time once the stated reasons for the delay had been considered.

24. While I accept that this jurisdiction may indeed be “Kafkaesque”, the simple legislative requirement that applications be made within the specified time period is just that – simple. Meeting those requirements requires no special level of expertise, skill or experience.

25. Although this point was not advocated with any strength by Counsel for the Applicant, I am also conscious of the fact that at the start of the relevant proceedings, the initiative to make the original application, which became the subject of the 31 May 2016 decision, was made personally by the Applicant (Mr Lee Taylor). In a statement of his attached to the Review Application, he attempts to set out his recollection of the timetable of his actions. The document reveals an Applicant who clearly has significant issues with his memory and cognitive processes.[10] As such, it is understandable that some lacunae may have developed in communications and instructions between the Applicant and his solicitors who had otherwise been acting for him in this matter (and related matters) for some years.

    [10] Statement of Lee Taylor dated 18 April 2018.

26. Further issues which touch upon the length of the delay in responding to the 12 September 2017 decision (and not in reference to the 31 May 2016 determination) arise from the understandable confusion about which communications from Comcare are actually determinations and which are not. Clearly, the Applicant and the Respondent have differing views on this and it is not the Tribunal’s responsibility in these proceedings to resolve that matter – the Tribunal is to merely take note of it.

27. Although it is the case that there was a failure on the part of the solicitors to lodge the necessary application within the time specified in the legislation, I nevertheless find that the explanation for the delay is “acceptable”.

    (b) Resting on his rights

28. I do not doubt that the Applicant himself was anxious to pursue his further claims against Comcare and that he believed he was doing so with both his original claim and with his personal calls to Comcare to seek an extension of time to lodge an application for review. It appears that it was around this time that he reconnected with his solicitors (there is no clear evidence on this matter) and that they took carriage of matters going forward.

29. They were active in discussions with Tribunal Conference Registrars and took steps to obtain a psychiatrist’s report in support of their new claim for secondary psychological injuries. They supplied these to both the AGS, the Tribunal and, eventually, to Comcare. They applied to vacate the date established for the Tribunal to hear related proceedings, apparently in order to consolidate all claims into one set of proceedings, however, this was opposed by Comcare and not initially granted by the Tribunal.

30. It appears that the breakdown occurred with the failure of the solicitors to respond to Comcare’s letter of 9 March 2017.

31. While Comcare had every right to regard this matter as having been concluded at that point, I am not persuaded that the matter was not still regarded as being on foot by the Applicant or his solicitors and that the parties were not merely resting on their rights.

32. Thus, I find that this criterion counts in favour of the Applicant.

    (c) Prejudice to the Respondent and the general public

33. The Respondent argued before the Tribunal that it would suffer prejudice in this matter if the EOT were granted, primarily on two grounds. The first was that the matter actually relates back to the decision of 31 May 2016 and, thus, is some two years out of time, meaning that gathering evidence reaching that far back would cause prejudice. There was a suggestion made that dealing with secondary psychological injury could require enquiries to be made going as far back as 16 years when the Applicant first commenced working for the Department of Defence.  The Tribunal is not in a positon to comment on that claim.

34. However, I note that in Berkelaar and Comcare[11] this Tribunal, in granting an extension, had found that Comcare “had not suffered prejudice from a five year delay because the continuation of other matters involving the applicant ensured that Comcare would have the relevant files and medical evidence.”[12]

    [11] (1997) AATA 12015.

    [12] P Sutherland and J Ballard, Annotated Safety, Rehabilitation and Compensation Act 1988, 10^th ed., Federation Press, Leichhardt, 2014, p. 477.

1. The extensive file of Mr Taylor’s claims dating back several years persuades me that this is an analogous position and that the prejudice to Comcare in this matter is not fatal to the application.

2. Similarly, Comcare’s representative claims that should the extension be granted, Comcare would not be able to prepare the necessary material[13] and responses to meet the scheduled 21 May 2018 date for hearing, which would lead to an application to vacate that date. This may well be the case. That is, however, a matter to be determined at another time and cannot influence the decision of the Tribunal at this stage.

   [13] In particular, the need to seek its own psychiatric evaluation of the claim in question and ensure the availability of appropriate medical witnesses for the proceedings in May 2018.

3. There is no question of any prejudice to the interests of the general public.

4. I thus find that the Respondent would not suffer unreasonable prejudice from the granting of the extension.

   (d) Merits of the substantial application

5. This, of course, will be a matter for a formal hearing of this Tribunal to determine. However, the Applicant placed great weight on Dr Dinnen’s report and claimed that this was prima facie evidence of the strength of the new application for secondary psychological injury. Cursory examination of the report which was before the Tribunal certainly lends substance to the claim that the application is founded on solid evidence which no doubt will be tested in due course.

6. Although the Tribunal cannot be definitive about the substantial merits at this stage, it is certainly persuaded that the Applicant has a viable claim to pursue.

   (e) Fairness between Applicant and other persons

7. This is not a relevant consideration in these proceedings.

   (f) Knowledge of appeal rights

8. Clearly these were known to both the Applicant (to some degree) and to his legal advisors. Their failure to avail themselves of these rights within the time limits imposed by the legislation must count to their detriment in the determination of this matter.

   (g) Alternative avenues of relief

9. Neither party made submissions to the Tribunal on this matter.

   CONCLUSION AND DETERMINATION

10. The general approach of the Tribunal in determining matters of extensions of time encompasses the fact that: “where genuine issues ought to be litigated, if such can be done with fairness to all concerned, it is appropriate to take a benign view of applications to extend time.”[14]

    [14] Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27 at [30].

11. Nevertheless, the Applicant still bears some burden to demonstrate to the Tribunal that the case it is presenting has substantial merit and that it meets the test in the AAT Act of being “reasonable in all the circumstances.”

12. For the reasons outlined above, I find that this application meets that test and that as a result the application for an extension of time is granted.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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

Associate

Dated: 24 April 2018

Date(s) of hearing:	20 April 2018
Solicitors for the Applicant:	John Mrsic, Brydens Lawyers
Solicitors for the Respondent:	Bradley Dean, Australian Government Solicitor