Veeravarman and Comcare (Compensation) - [2017] AATA 3038

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 1142
REASONS 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…

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.

Continue reading Veeravarman and Comcare (Compensation)

Details

AGLC: Veeravarman and Comcare (Compensation) [2017] AATA 3038
Case: [2017] AATA 3038
Decision Date: 27 November 2017

CaseChat Overview and Summary

This matter concerned an application by Mr Veeravarman for an extension of time to seek a review of a decision made by Comcare. The decision in question was made on 1 March 2016, and Mr Veeravarman sought to lodge his application for review approximately eighteen months later, on 25 October 2017. The Administrative Appeals Tribunal (AAT) was required to consider whether to grant this extension.

The primary legal issue before the Tribunal was whether it was reasonable in all the circumstances to extend the time for Mr Veeravarman to lodge his application for review, pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth). This required the Tribunal to consider the statutory modification in section 64(4) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), which prescribed a 60-day period for making such an application after receiving the decision.

The Tribunal applied the principles established in *Hunter Valley Developments Pty Ltd & Ors v The Hon Barry Cohen, Minister for Home Affairs and Environment* (1984) 3 FCR 344, which indicate that there is a prima facie rule against entertaining proceedings commenced outside the prescribed period. This requires an applicant to provide an acceptable explanation for the delay and demonstrate that it is fair and equitable to extend the time. Factors to consider include the length of the delay, whether the applicant has rested on their rights, awareness of appeal rights, prejudice to the respondent, the merits of the substantive case, and fairness to others in a similar position. The Tribunal noted that the applicant had not provided evidence of any correspondence or agitation indicating dissatisfaction during the intervening period, and that Comcare was entitled to conclude the matter was finalised. The Tribunal emphasised the importance of finality in legal proceedings, as reflected in statutory time limits.

The Tribunal refused Mr Veeravarman's application for an extension of time, finding that the substantial delay of 528 days beyond the prescribed 60-day period was not reasonable in all the circumstances.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.