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, 64
Cases
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 541
REASONS 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…

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.

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Details

Case: [2013] AATA 703
Decision Date

CaseChat Overview and Summary

Teresa Carbone has applied for an extension of time to lodge an application for review of a reviewable decision regarding a return to work program in 2011. Comcare opposes the grant of an extension. The matter has a complex history involving multiple applications and reconsiderations. Ms Carbone has a work-related back injury, and a rehabilitation program was determined on 1 September 2011. Ms Carbone disagreed with the terms of the program and sought reconsideration, which was conducted and a reviewable reconsideration decision was made on 24 November 2011. Ms Carbone applied for review, but subsequently withdrew the application and later sought to have it reinstated, which was refused. Ms Carbone then made a fresh application for review of Comcare’s decision to reject her claim for a psychological injury, which was out of time but an extension of time was granted.

The Tribunal considered Ms Carbone's application for an extension of time and an issue of jurisdiction relating to a decision dated 1 May 2013. Ms Carbone informed the Tribunal that she had made an error attaching the 1 May 2013 decision to her application for review, but she now wants to see if the Tribunal can review that decision. The Tribunal determined that it could not, as the decision had 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 confined to review of a reviewable decision, being a decision under s 38(4) or s 62. The 1 May 2013 decision did not meet that requirement.

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. Ms Carbone’s explanation for the delay was 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. The Tribunal accepted Ms Carbone's explanation and was satisfied that it was 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.

The final orders are that the application for an extension of time is granted to 16 August 2013.

Orders