Teresa Carbone and Comcare
[2013] AATA 703
[2013] AATA 703
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4023
Re
Teresa Carbone
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 1 October 2013 Place Canberra Extension of time to make an application is granted to 16 August 2013.
..........................[sgd]..............................................
Mr S. Webb, Member
PRACTICE AND PROCEDURE – application for extension of time in which to make an application – previous application dismissed – related applications on foot – applicant relied on information provided by the tribunal – no prejudice – fairness – merit – extension granted
Legislation
Administrative Appeals Tribunal Act 1975(Cth) s 29(7)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 60, 62, 64Cases
Maric v Comcare (1993) 17 AAR 259
Hunter Valley Developments v Cohen (1984) 3 FCR 344
Duong v Australian Postal Corporation [2005] FCA 991
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541REASONS FOR DECISION
Mr S. Webb, Member
1 October 2013
Teresa Carbone seeks an extension of time in which to lodge an application for review of a reviewable decision in respect of a return to work program in 2011. Comcare opposes the grant of an extension.
The matter has something of a chequered history. Ms Carbone has a work-related back injury in respect of which a rehabilitation program in the form of a graduated return to work program was determined, by amendment of a previous program, on 1 September 2011. Ms Carbone did not agree with the terms of the program and asked Comcare to reconsider the decision. This was done and a reviewable reconsideration decision was made on 24 November 2011.
Ms Carbone applied for review. In the course of those proceedings, Ms Carbone withdrew the application for reasons relating to her then new employment and her health. She asserts that information provided by an officer of the Tribunal about her options was deficient. Subsequently, she applied for the application to be reinstated. On 2 October 2012, this was refused[1].
[1] Re Carbone & Comcare [2012] AATA 665.
On 18 October 2012, Ms Carbone made a fresh application for review of Comcare’s decision to reject her claim for a psychological injury. She alleges that the claimed injury arose, in part, from the rehabilitation program determined on 1 September 2011. The application was out of time, but an extension of time was granted and the application was allowed to proceed – application number 2012/4686.
Ms Carbone says that she proceeded on the basis that all of her claims were before the Tribunal. Review of the Tribunal’s file confirms that issues relating to the 1 September 2011 rehabilitation program, and the related reviewable decision on 24 November 2011, were raised and discussed in the context of causal issues of Mr Carbone’s claim for psychological injury. The file records are not crystal clear, however. An indication that the Tribunal “probably has jurisdiction” was given in a telephone directions hearing on 15 May 2013. Later that day, an email sent to the parties contained the following passage –
“Senior Member Creyke has now considered how the matter should proceed. She has decided that, in light of the Respondent’s concession that all of Ms Carbone’s claims, including those relating to a psychological condition as a separate, not a secondary condition, are before the Tribunal, the matter will continue on that basis i.e. there is no need for Comcare to further consider the claim, and all the claims will be dealt with by the Tribunal.”
These communications may permit a broad, and incorrect, understanding that the reviewable decision of 24 November 2011 was to be addressed in the Tribunal’s review.
On 27 June 2013, the matter came before me in a hearing to determine the Tribunal’s jurisdiction in respect of the 24 November 2011 reviewable decision. I determined that the Tribunal had no jurisdiction to review that decision, and so ordered.
On 16 August 2013, Ms Carbone made a fresh application for review of the 24 November 2011 reviewable decision, attaching a Comcare decision dated 1 May 2013. The application was well out of time and an application for the grant of an extension of time was also lodged. In that form, Ms Carbone gave the following reason for seeking extra time –
“I was provided with the wrong advice by the tribunal & was told at a phone conference 2013 that this matter could not be heard in conjunction with current AAT claim 2012/4686.”
The Tribunal created two files – 2013/4023, in respect of the 24 November 2011 reviewable decision, and 2013/4024, in respect of the 1 May 2013 decision.
Once again, a hearing was listed before me to determine the application for an extension of time and an issue of jurisdiction relating to the 1 May 2013 decision.
On 26 September 2013, Comcare filed written submissions addressing both matters.
Jurisdiction
Ms Carbone informed me that she had made an error attaching the 1 May 2013 decision to her application for review on 16 August 2013, but she now wants to see if the Tribunal can review that decision. I am satisfied that it cannot.
There are two things to say about this. Firstly, the decision has the character of a primary determination under s 60 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The Tribunal’s jurisdiction is conferred by s 64 and is confined to review of a reviewable decision, being a decision under s 38(4) or s 62. The 1 May 2013 decision does not meet that requirement.
Secondly, application may be made to the Tribunal for review of a reconsideration decision under s 62 of that Act. Ms Carbone has not made an application for review of the 1 May 2013 decision. Without an application, the Tribunal is not in a position to consider the matter.
Even though the Tribunal created a file, it does not follow that Ms Carbone made an application for review of a reviewable decision. She did not and the file 2013/4024 cannot proceed.
Extension of time
Comcare opposes the grant of an extension of time. It says that the 1 September 2011 rehabilitation program was for a closed period and that period is now long passed – there is no utility in the application, if allowed, and it has no merit. This, Comcare says, weighs against the grant of additional time.
During the hearing, I was informed that Comcare was not seized of the fact that Ms Carbone had attempted to press for the Tribunal to review its 24 November 2011 reconsideration decision by seeking reinstatement of her previous application, albeit without success. This, I was told, caused Comcare to retreat from its submission that Ms Carbone had rested on her rights. Plainly enough, she had not.
Furthermore, Comcare informed me that Ms Carbone’s entitlements to weekly payments for incapacity during the period of the rehabilitation program had been determined, without controversy. These determinations would not be affected by the outcome of Ms Carbone’s application if allowed. In Comcare’s submission, those matters were put to rest a long time ago without contest.
The discretion to extend the time in which an application for review may be lodged, conferred by s 29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), may be exercised if the decision-maker is satisfied that it is reasonable in all the circumstances to do so - the discretion must be exercised judicially with regard to the particular facts[2].
[2] Maric v Comcare (1993) 17 AAR 259 at 261.
Guiding principles concerning applications to extend time limits were discussed in the often quoted case of Hunter Valley Developments v Cohen[3]. Those guiding principles were considered with approval by Edmonds J in Duong v Australian Postal Corporation[4] at [17]:
“…Those principles may be summarised as follows:
(1) Prima facie, proceedings should be commenced within the prescribed period and an applicant for extension must show ‘an acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time;
(2) Any action taken by the applicant, other than by making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not ‘rested on his rights’) and a case where the decision-maker was allowed to believe that the matter was finally concluded.
(3) Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension.
(4) However, the mere absence of prejudice is not enough to justify the grant of an extension. In this context, public considerations often intrude. A delay which may result, if the application is successful, in the unsettling of other people or of established practices is likely to prove fatal to the application.
(5) The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.(6) Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion.”[3] (1984) 3 FCR 344 at 348 to 350.
[4] [2005] FCA 991.
These principles are not exhaustive in relation to the Tribunal’s discretion. Nor is the absence of a reasonable explanation for the delay in bringing an application necessarily determinative[5]. All relevant factors must be considered when determining whether it is fair and equitable to grant an extension of time in the particular circumstances. In that consideration the limitation period provided for in the legislation, in this case 60 days, must be regarded as the general rule, to which exception may be granted subject to prejudice and the service of justice[6].
[5] Comcare v A’Hearn (1993) 45 FCR 441 at 444.
[6] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, per McHugh J at 551.
Ms Carbone’s explanation of the delay is that following rejection of her efforts to have her previous application reinstated, she lodged a further application for review and, thereafter, she proceeded on the understanding that all of her claims would be reviewed together by the Tribunal. Indeed, she points to information she was provided by the Tribunal to that effect. As I have said, that information is imprecise and open to interpretation or misapprehension. I accept that Ms Carbone proceeded as she contends. When her understanding was clarified and corrected, and she was left in no doubt that the Tribunal had no jurisdiction to review the 24 November 2011 reconsideration decision, she lodged the present application. Her reasons for doing so were clearly articulated in the interlocutory hearing - to ensure that the Tribunal had jurisdiction to consider this aspect of her dispute with Comcare, namely that the 1 September 2011 rehabilitation program was not suitable for her and it caused her harm.
Having reviewed the Tribunal file in application 2012/4686, I am satisfied that matters of this kind were raised by Ms Carbone in those proceedings, albeit, perhaps, not succinctly or expressly in terms of the present application. Ms Carbone is not legally represented and she suffers from a psychological disorder. Some latitude is appropriate in construing the issues she seeks to raise. To my mind, the matters Ms Carbone has raised are sufficient to alert Comcare to the matters she seeks to agitate by this application.
Comcare conceded that there is no real prejudice if the extension of time is granted. I agree. This is because Ms Carbone’s injury claim, subject of application 2012/4686, traverses the 1 September 2011 rehabilitation program, albeit in respect of injury causation issues – whether the program or the manner in which it was conducted significantly contributed to Ms Carbone’s anxiety and depression disorder. Even though the present application, if allowed, raises different issues, concerning the suitability of the rehabilitation program, to those arising in respect of Ms Carbone’s claimed injury, concerning the extent to which the program contributed to psychological disorder, the matters are closely aligned. Other than the public interest in ensuring, generally, that statutory time limits are adhered to, no other interest is likely to be pricked or disturbed if the application is allowed to proceed.
As to the merit of the substantive application, this is difficult to gauge on the present materials. All that can be said is that it is not so devoid of merit that it should be struck out. Practical utility in an application is one thing, and in this case I agree with Comcare that there is but little practical utility in Ms Carbone’s application that would deliver tangible benefit to her if she were to succeed on all points, but there are also matters of principle as she contends. The absence of practical utility does not always or necessarily render a claim or an application unmeritorious or vexatious.
The sharper point, here, is directed to fairness, delivering justice to both parties. If Ms Carbone perceives that the 1 September 2011 determination and the rehabilitation program it established was flawed in some way, taking action to address the alleged flaw and in so doing, perhaps, to focus on points of principle relating to the proper approach to rehabilitation under the SRC Act, drawing notice to the perceived defect, is a matter of right if it is commenced within the prescribed time. Beyond that time, in the absence of prejudice, fairness requires the interests of both parties to be weighed in the balance.
On the one hand, there is Ms Carbone’s interest in having a decision that she considers repugnant reviewed, and the related point of principle she seeks to agitate, and on the other hand there is the effort and cost that Comcare will necessarily incur if the application is allowed to proceed. The effort and costs to which Comcare will be put is largely offset by the effort and cost that it bears in application 2012/4686. If Ms Carbone is not granted an extension of time, she will be denied review of the decision she seeks to impugn. To my mind, the burden of opportunity denied outweighs the additional cost to Comcare if the opportunity is granted.
On balance, therefore, I am satisfied that it is reasonable in all the circumstances to grant Ms Carbone the extension of time she seeks.
The application is allowed and an extension of time is granted to 16 August 2013.
I certify that the preceding 28 (twenty eight) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member ....................[sgd]....................................................
Associate
Dated 1 October 2013
Date(s) of hearing 27 September 2013 Date final submissions received 27 September 2013 Applicant In person Advocate for the Respondent Luke Woolley Solicitors for the Respondent Sparke Helmore
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