Veeravarman and Comcare (Compensation)
[2017] AATA 3038
•27 November 2017
Veeravarman and Comcare (Compensation) [2017] AATA 3038 (27 November 2017)
Division:GENERAL DIVISION
File Number(s): 2017/6345
Re:Sivakumar Veeravarman
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:27 November 2017
Date of written reasons: 22 December 2017
Place:Melbourne
The application for an extension of time is refused.
[sgd]........................................................................
Senior Member D. J. Morris
PRACTICE AND PROCEDURE – Application for extension of time – significant delay since reviewable decision made – matters to take into account – relevance of other matters before the Tribunal – application refused – written reasons requested for oral decision
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 29(2), 29(7), 43(2A), 43(2B)Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 8(5), 9, 62(2), 65(4)
Cases
Hunter Valley Developments Pty Ltd & Ors v The Hon Barry Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Mehta v Secretary of State for the Home Department (1975) 2 All ER 1084
Negri v Secretary, Department of Social Services (2016) 70 AAR 103
Re Keys and Comcare [2011] AATA 277Re Mulheron and Australian Telecommunications Commission (1991) 23 ALD 309
Swanton v Military Rehabilitation and CompensationCommission [2017] FCA 1142REASONS FOR DECISION
Senior Member D. J. Morris
22 December 2017
PROCEDURAL BACKGROUND
The Applicant in this matter, Mr Sivakumar Veeravarman, has an accepted workers’ compensation claim in respect of intracranial injury and superficial injury of face, neck and scalp with a date of injury of 9 November 2015. By a determination dated 21 January 2016, Comcare calculated Mr Veeravarman’s Normal Weekly Earnings (NWE) at $1,597.10 and his Normal Weekly Hours (NWH) at 15.54 hours.
Mr Veeravarman sought a reconsideration of the 21 January 2016 determination. This was done by Mr Alan Burrows, a Comcare Review Officer, acting under section 62(2) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). On 1 March 2016, Mr Burrows amended the determination. He did not disturb the NWE figure but varied the NWH to 17.54 hours.
Dissatisfied with the Review Officer’s decision, Mr Veeravarman applied for a review of Mr Burrows’ 1 March 2016 decision on 25 October 2017. Because Mr Veeravarman’s application for review was beyond the prescribed time limit provided for such a review, he lodged an application for an extension of time for making an application for review.
A telephone hearing was held on 27 November 2017 to consider the application for an extension of time. Mr Adam Shaw of Arnold, Thomas & Becker, Lawyers, represented the Applicant. The Respondent was represented by Mr Brenton Lochert. At the conclusion of the hearing on 1 December 2017, the Tribunal made its decision ex tempore and provided oral reasons. Under section 43(2A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), the Respondent requested a statement in writing of the reasons of the Tribunal for its decision. The Tribunal therefore provides reasons in writing for the decision which, in accordance with s 43(2B) of the AAT Act, include findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
In Negri v Secretary, Department of Social Services (2016) 70 AAR 103 (Negri), Bromberg J considered a matter before the Tribunal where an oral decision had been made and a statement of written reasons had been subsequently supplied. His Honour stated at [27]:
… as long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or NWE reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).
These reasons have been written consistent with the approach suggested in Negri. NWE reasoning for the decision has not been introduced, but this written statement is a fuller explanation of the reasons given orally on 27 November 2017.
HEARING
At the hearing, Mr Shaw submitted that the Applicant had not realised the consequences of the determination relating to his NWE and NWH. He advised the Tribunal that the Applicant had other applications for review before the Tribunal which may be affected by the 1 March 2016 determination. He did not elaborate in detail of the nature of these applications and no written submissions had been made in relation to possible consequences. The Tribunal noted that in his application for an extension of time dated 25 October 2017, Mr Veeravarman had stated:
I was unaware of the consequences of this decision and at the time I was not in good enough mental health to pursue a challenge further.
The Respondent submitted that the prescribed period of time for the Applicant to make his application for review to the Tribunal is set out in section 29(2) of the the AAT Act as 29 days but that section 29(2) is modified by section 65(4) of the SRC Act so that the prescribed period of time commences “on the day the decision is made and ends on the sixtieth day after.”
The Respondent noted that Mr Veeravarman had not stated when he received Mr Burrows’ decision and submitted that, given the decision was made on 1 March 2016 the application for review should have been made by 2 May 2016 (i.e. the sixtieth day). The Applicant has asked for an extension of time to 25 October 2017 and so is therefore “nearly eighteen months out of time”. The Respondent submitted that the prime facie rule is that applications commenced outside the prescribed period should not be entertained and cited as authorities for this view Hunter Valley Developments Pty Ltd & Ors v The Hon Barry Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 (at [348]) (Hunter Valley), Re Mulheron and Australian Telecommunications Commission (1991) 23 ALD 309).
Consideration
As mentioned above, section 64(4) of the SRC Act modifies section 29(2) of the AAT Act so that the prescribed time for making an application for review is the period commencing on the day the decision is made and ending on the sixtieth day after the Applicant receives the decision. Section 29(7) of the AAT Act gives the Tribunal the power, upon an application in writing by a person, to extend the time for the making by that person of an application to the Tribunal for the review of a decision if the Tribunal is satisfied that it is reasonable in all the circumstances to do so. The Tribunal can grant an extension even if the time for making the application has expired.
How the Tribunal should assess whether it is reasonable in all the circumstances to grant an extension is not otherwise set out in the statute. Significant guidance is provided in the Federal Court decision in Hunter Valley. As Wilcox J said in that case, the "prescribed period" of 28 days is not to be ignored. Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained. It is a pre-condition to the exercise of discretion in favour of an Applicant that the Applicant show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time.
Hunter Valley suggests that the broad factors to be considered are the following: the length of the delay, and whether an Applicant has rested on his or her rights; an explanation of the delay and awareness of appeal rights; prejudice to the Respondent and other parties; the merits of the substantive case; fairness to others in a similar position. Mindful that each application for extension of time turns on its own circumstances and that His Honour’s list of matters to take into account were provided as guidance to decision-makers only, the Tribunal nonetheless considers they are relevant factors to consider.
The length of the delay – has the Applicant rested on his rights?
The decision of which the Applicant seeks review was made on 1 March 2016. The decision took the form of a letter from the Review Officer attached to which was a statement of reasons. It was not in issue that these documents were sent by Comcare by post to Mr Veeravarman, addressed to his Bentleigh residential address.
In a recent Federal Court decision, Swanton v Military Rehabilitation and CompensationCommission [2017] FCA 1142, Tracey J set out the approach to be taken when considering service by post. His Honour held that where an item is sent from a Commonwealth agency, such as Comcare in this case, there is a rebuttable presumption that it is posted five business days after the date of the letter. The date five business days after 1 March 2016 is 8 March 2016. The letter is deemed to have been posted then and presumed to have been received a further four business days later, in this case on 15 March 2016, given that Monday 14 March 2016 was a public holiday in the State of Victoria.
The Tribunal does not accept Mr Lochert’s submissions on behalf of Comcare that the 60 day period should commence from the date the determination was made. There is no evidence that the determination was provided to Mr Veeravarman otherwise than by post; for instance, there was no evidence that it was hand-delivered to him or emailed to him or his legal representatives that day. Plainly, it is unreasonable for the period to start from a time when an action had been done but not communicated to the person affected. Time for service by post must be factored in when calculating the commencement of the prescribed time period, unless a statute explicitly states otherwise.
The Tribunal therefore finds that the 60 day period of time set down in the SRC Act should start from 16 March 2016. That period concludes at the end of 15 May 2016. The Applicant has asked for an extension of time to lodge a review to 25 October 2017, some seventeen months after I have found the statutory period ends.
An explanation of the delay and awareness of appeal rights.
As mentioned above, Mr Shaw reiterated that the Applicant said in his application for extension of time: that he was unaware of the consequences of the decision. This is not, of itself, a ground for the grant of an extension in my mind, unless there has been some demonstrated manifest injustice in the application of the decision which would be repugnant to the operation of the SRC Act. No arguments were put forward in writing or in the hearing to demonstrate such had occurred, or may have occurred, in this decision.
Mr Veeravarman has also submitted that he was not in good enough mental health to pursue a challenge further. No medical evidence was put forward to corroborate any mental health condition of Mr Veeravarman that might have reasonably affected his ability to make an application for review in the March to May 2016 period, or in the period since. I should say that if there was medical evidence that the Applicant was in a situation which directly affected his ability to make an application for review, that is something that the Tribunal may well take into account. Of significance would be the nature of the medical condition and the temporary disablement. But, as I say, no such evidence was put forward other than the bald statement in the application for extension of time.
In the hearing, but not in written submissions, Mr Shaw also adverted to other applications that Mr Veeravarman has in train before the Tribunal but did not expand in detail on these. In the absence of this information, the Tribunal does not consider that a collateral reason is relevant to the particular question about a state of satisfaction under section 29(7) that it is reasonable in all the circumstances to extend time in relation to the 1 March 2016 determination.
In terms of whether the Applicant was aware of his appeal rights, I note that in the reasons provided by Comcare there is a section headed ‘Notice of Rights’ which states:
If you are dissatisfied with my determination, you may lodge an application with the Administrative Appeals Tribunal (AAT) to have it reviewed….
The document then sets out that a review may be on a relevant form or may simply be by letter and sets out the information that Mr Veeravarman should include and the street and mailing address of the Tribunal’s Melbourne Registry, as well as the website of the Tribunal. The statement of reasons concludes:
There is a time limit of 60 days from the day you receive the determination in which to lodge the application but, in some cases, an extension of time may be granted by the AAT.
I find, therefore, that the Applicant was aware of his appeal rights in May 2016.
Prejudice to the Respondent and other parties
The Tribunal considers that it was reasonable for Comcare to consider that the matter was finalised when the 60 day period expired, given that there was no evidence before the Tribunal that Mr Veeravarman had indicated, at that time, dissatisfaction with the 1 March 2016 determination or any other intention, even an inchoate intention, to seek a review of it. The passage of time from May 2016 to October 2017 is significant and in my view the Respondent was entitled to conclude that the Applicant did not seek to challenge the determination, as revised.
The merits of the substantive case
In this matter I am considering the question of an extension of time, and I do not delve deeply into the substantive merits of the Applicant’s case. This hearing is about whether time should be extended, not whether the Applicant’s case has substance or merit. However, it is necessary for the Tribunal to look at whether the substantive case has some merit. As Lord Denning MR said in Mehta v Secretary of State for the Home Department (1975) 2 All ER 1084 at 1088:
If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.
In this case the Review Officer amended the calculation of the NWH of the Applicant to 17.54 hours and did not disturb the NWE amount originally determined, which was $1,597.10. Mr Veeravarman had submitted that his work as an interpreter could not be classified as ‘seasonal’ and that using the last twelve month period as a relevant period is not fair to him because he, in the words of the reasons for the varied determination, “chose not to undertake any work for more than three months in the particular period.”
The original determination took into account the irregular nature of the Applicant’s workload and his pay and therefore did not use a 2 week period. The calculation took into advice a letter dated 1 February 2016 from Mr Zarko Sizgoric, who is described as the Assistant Manager People, Work Health and Safety People and Support Victoria/Tasmania and who it appears was the Applicant’s employer in the period immediately before his injury, that Mr Veeravarman was:
…a contracted interpreter and paid only for the service you provide. As you complete interpreting jobs assigned to you time sheets are submitted detailing the time spent on the job and you are then paid based on those details.
Mr Sizgoric claimed the work was seasonal and days or weeks may pass were [sic] you were not assigned a job or only receive a few jobs as client demand dictates. At other times of the year they may be high demand for your services.
Mr Sizgoric stated that whilst it might be to your financial advantage to calculate your NWE using a 2 week relevant period, the department considers this does not reflect a fair earning capacity when considering the fluctuating nature of the seasonal work you undertake. Accordingly the department used a 12 month relevant period over which an NWE figure has been established. By using this method, periods of high and low earnings are factored into the NWE calculation to obtain a fair representation of earnings.
The Tribunal notes that the Applicant’s employer provided payslips direct to Comcare for the 12 month period immediately before Mr Veeravarman’s injury which showed he earned $84,049 in that 12 month period.
Section 9(1) of the SRC Act defines the relevant period for calculating NWE as:
Relevant period
For the purposes of calculating the normal weekly earnings of an employee before an injury, a reference in section 8 to the relevant period is, subject to this section, a reference to the latest period of 2 weeks before the date of the injury during which the employee was continuously employed by the Commonwealth or a licensed corporation.
Section 8(5) of the SRC Act states:
Where, because of the shortness of the relevant period, the normal weekly earnings as calculated in relation to the relevant period under subsection (1) or (2) would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment before the injury, the normal weekly earnings before the date of injury shall be calculated in relation to such other period as Comcare considers reasonable for the purpose of arriving at an amount that does fairly represent the weekly rate at which the employee was being so paid.
I respectfully agree with the conclusions of Senior Member Creyke in Re Keys and Comcare [2011] AATA 277 where she found that if the 2 week period immediately before the injury is not chosen, the other period in section 8(5) of the SRC Act must not only precede the injury which is the subject of the claim but the period of earnings chosen should be as close to the injury as possible. A longer period could lead to distortions.
Comcare took into account the advice of Mr Veeravarman’s employer about fluctuations in his work and pay as an interpreter and, I think reasonably, accepted the employer’s view that using a 12 month period to arrive at a NWE would better reflect the nature of his work. I note that the Applicant’s employer initially stated this equated to 15.54 hours per week but subsequently wrote to Comcare to amend that calculation to 17.54 hours per week, and the Review Officer varied the determination to correct the miscalculation.
Mr Shaw did not advance specific arguments that there was a fundamental flaw in calculations of NWE and NWH, only that there were “consequences” for other applications that the Applicant had before the Tribunal. As I have said above, there was nothing specific before me about those other matters, and how they might be linked. I therefore I do not conclude that the Applicant has a case devoid of merit, or in Lord Denning’s words, a “flimsy” case, but there is nothing apparent before me that Comcare has misapplied the law, or erred in some other way, in the 1 March 2016 determination.
I therefore consider that there is not a high prospect of a different outcome in a substantive review. The fact that Mr Veeravarman apparently chose not to work for a period in the relevant 12 month period (and this fact was not disputed by parties) does not mean that it is reasonable for Comcare to choose some longer period, because that would not reflect his NWE before the date of injury, as set out in section 8(5).
Fairness to others in a similar position
In whether to extend time, I must consider fairness to others in a similar position. The Applicant did not act within 60 days, and in fact did not act until a further 528 days had elapsed. The Respondent was entitled to conclude that the matter was finalised because there was no other indication before the Tribunal of any correspondence or other agitation by the Applicant in the intervening period that he was dissatisfied with the reconsideration. The Parliament has set down the prescribed time limits and they have been strictly enforced by the Courts and Tribunals for a good reason – there needs to be some finality. As His Honour said in the Hunter Valley case, there is a prima facie rule that proceedings should not be commenced outside the statutory timeframe.
DECISION
In terms of the delay in lodging an application for review, the 60 day period is set down in the Act for a reason. It was substantially exceeded and I am not satisfied on the evidence before me that it is reasonable in all the circumstances to extend this time under section 29(7) of the AAT Act, as modified.
The application for an extension of time is refused.
34.
35. I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Mr D. J. Morris, Senior Member.
[sgd]…..…..................................................
Associate
Dated 22 December 2017
Date of hearing 27 November 2017 Solicitors for the Applicant Mr Adam Shaw, Arnold, Thomas & Becker, Lawyers
Advocate for Respondent Mr Brenton Lochert
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