Taylor and Comcare (Compensation)

Case [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, 10th 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…

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AGLC
Taylor and Comcare (Compensation) [2018] AATA 972
Case
[2018] AATA 972
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr Lee Taylor (the Applicant) for an extension of time to lodge an appeal against a decision made by Comcare (the Respondent) on 12 September 2017. The application was heard by Senior Member Chris Puplick AM of the Administrative Appeals Tribunal. The dispute arose from a series of claims made by the Applicant against Comcare concerning psychological injury stemming from a previous workplace physical injury.

The primary legal issue before the Tribunal was whether to grant the Applicant an extension of time to lodge an appeal against Comcare's decision of 12 September 2017. This required the Tribunal to consider the reasonableness of granting such an extension in all the circumstances, as mandated by section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal was required to weigh factors including the reasons for the delay, the length of the delay, the merits of the substantial application, and the fairness to all parties involved.

The Tribunal reasoned that while there had been a delay of almost five months in lodging the appeal, the Applicant's solicitors attributed this to their own failure to manage the matter in a timely fashion. The Applicant's counsel argued that the complexity of compensation law and the specific circumstances of the case, including a previous solicitor's alleged inability to navigate the proceedings effectively, justified the delay. The Tribunal noted that the general approach in determining extension of time applications is to adopt a benign view where genuine issues warrant litigation and can be conducted fairly. Applying this principle, and finding that the Applicant's case had substantial merit and met the test of being reasonable in all the circumstances, the Tribunal granted the application for an extension of time.

Orders

Orders of the court

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Background

Background to the litigation

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 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 followsTHE LEGISLATIVE FRAMEWORK

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Neither party made submissions to the Tribunal on this matter.CONCLUSION AND DETERMINATION 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]. 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.” 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.

Ratio Decidendi

Legal Principle Established

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 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 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. 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. 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. 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. 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. 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.