Zaiter and Comcare (Compensation)
[2022] AATA 2353
•19 July 2022
Zaiter and Comcare (Compensation) [2022] AATA 2353 (19 July 2022)
Division:GENERAL DIVISION
File Number(s): 2022/3962
Re:Emily Zaiter
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:19 July 2022
Place:Sydney
Pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal extends the time for making an application for review in this matter to 17 May 2022.
...................................[sgd].....................................
Chris Puplick AM, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – application for an extension of time – Comcare declined liability for psychological treatment under section 16 of the SRC Act – 28-day period to seek review has elapsed – where applicant’s solicitors were instructed but failed to lodge an application – reasons for delay – whether applicant rested on their rights – prejudice to a respondent – prospects of success – prejudice to general public and fairness between applicants – extension of time granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 29
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Antonious and Comcare (Compensation) [2018] AATA 3968
A’Hearn v Comcare [1993] 18 AAR 22
Berkelaar and Comcare [1997] AATA 12015
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brown v Federal Commissioner of Taxation [1999] FCA 563
Carney and Comcare (Compensation) [2018] AATA 164
Comcare v A’Hearn (1993) 119 ALR 85
Crick and Prosegur Australia Pty Ltd [2016] AATA 313
David and High Court [2009] AATA 448
Dolan and Comcare (1993) 29 ALD 887
Doumbouya and Secretary, Department of Social Services (Social services second review) [2021] AATA 880
Doyle v Chief of General Staff (1982) 42 ALR 283
Duff and Ors v Freijah and Ors (1982) 43 ALR 479
Emery and Comcare (Compensation) [2016] AATA 647
FCFY v Minister for Home Affairs [2019] FCA 1222
Hillman and Australian Postal Corporation (Compensation) [2017] AATA 1411
Hunter Valley Developments Pty Ltd and Ors v Minister for Home Affairs and Environment (1984) 3 FCR 344
Jackamarra v Krakouer [1998] HCA 27
Jess v Scott and Ors (1986) 70 ALR 185
Kim and Minister for Immigration and Border Protection [2018] AATA 155
Kuljic v Secretary, Department of Social Security [1994] FCA 886
McKenzie and Secretary, Department of Social Security (1998) 54 ALD 281
Noonan and Comcare (Compensation) [2019] AATA 515
Peters v Comcare [2013] FCA 808
R v Lawrence [1982] AC 510
Secretary, Department of Family and Community Services and Roberts (2003) 73 ALD 412
Secretary to the Department of Social Security v Van Den Boogaart [1995] FCA 1289
SPWX and Secretary, Department of Social Services (Social services second review) [2020] AATA 3883
Taylor and Comcare (Compensation) [2018] AATA 972
WZATA v Minister for Immigration and Border Protection [2016] FCCA 305
WZAUQ v Minister for Immigration and Border Protection [2016] FCCA 152
Zanbergs and Commonwealth Bank of Australia [2014] AATA 866
Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451
REASONS FOR DECISION
Chris Puplick AM, Senior Member
19 July 2022
This is an application by Ms Emily Zaiter (the Applicant) for the Tribunal to grant her an extension of time (or EOT) to lodge an appeal against a decision made by Comcare (the Respondent) to revoke an earlier determination accepting liability to pay her compensation under the provisions of the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).
PRINCIPLES FOR CONSIDERING EXTENSIONS OF TIME
Extensions of time are not granted by the Tribunal as a matter of course and cogent reasons need to be advanced for them being granted.
McHugh J in the High Court case of Brisbane South Regional Health Authority v Taylor[1] gave four reasons why such limitations are an important part of the legal process. His Honour noted that:
First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.
…
The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.
[1] (1996) 186 CLR 541 at 552-553. Footnotes and citations omitted.
Nevertheless, it was clearly the intention of the Parliament that an extension of time to comply with statutory requirements should be available. Hence subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) provides:
(7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.[2]
[2] Emphasis added.
The critical element in this section is that a decision granting an extension of time is made if it is “reasonable in all the circumstances”. In other words, the role of the Tribunal is to make an assessment of the overall quality of the application and not become fixated upon any one element which may be advanced either in support of, or against, granting an extension of time.
The onus lies upon an applicant to demonstrate that they should be granted an extension of time bearing in mind the proposition stated by Kiefel J (as Her Honour then was) to the effect that:
The prima facie rule is that proceedings commenced outside the period of twenty eight days will not be entertained.[3]
[3] Secretary to the Department of Social Security v Van Den Boogaart [1995] FCA 1289 at [7].
It is generally accepted that the “check-list” outlined by Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (Hunter Valley)[4] may be taken as the guide by this Tribunal in determining EOT matters, although there are other versions of such check-lists available.[5] That check list is not prescriptive and:
Care must be taken by the Tribunal to ensure that there is not a slavish adherence to the matters which are referred to in that judgment, which are listed merely as matters for guidance.[6]
[4] (1984) 3 FCR 344.
[5] Phillips v Australian Girls’ Choir [2001] FMCA 109; Hillman and Australian Postal Corporation (Compensation) [2017] AATA 1411; FCFY v Minister for Home Affairs [2019] FCA 1222.
[6] A’Hearn v Comcare [1993] 18 AAR 22 at [24].
His Honour made it clear at the outset however that while:
Special circumstances need not be shown… the Court will not grant the application unless positively satisfied that it is proper so to do.[7]
[7] Hunter Valley Developments Pty Ltd and Ors v Minister for Home Affairs and Environment (1984) 3 FCR 344 at [18]. Emphasis added.
That check list provides as follows:
·an applicant must show an “acceptable explanation of the delay” and thus it is “fair and equitable in the circumstances” to extend time;
·a distinction is to be made between an applicant who has “rested on his rights” and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;
·any prejudice to the respondent caused by the delay;
·whether any others or the general public would suffer any prejudice as a result of the extension, or established practices be upset;
·the merits of the substantial application; and
·“considerations of fairness as between the applicant and other persons” in a similar position.
However, there are other principles which the Tribunal bears in mind in such considerations. They include:
·considering each case on its specific facts and merits, being guided by “what the justice of the case requires” and ensuring that all relevant factors are evaluated;[8]
·considering that “if a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal”;[9] and
·considering “any alternative avenues of relief for the Applicant should the extension of time order not be made”.[10]
[8] Brown v Federal Commissioner of Taxation [1999] FCA 563 at [59]; Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451 at 465.
[9] Kuljic v Secretary, Department of Social Security [1994] FCA 886 at [6].
[10] Kim and Minister for Immigration and Border Protection [2018] AATA 155 at [20].
There is no hard-and-fast rule related to the length of time by which an application falls outside the prescribed lime limits serving as a guide as to whether or not an extension of time may be granted, although:
It is now well established that, in considering a request for an extension of time after the expiry of a statutory period, the period by which the deadline is exceeded is a highly relevant consideration.[11]
[11] Carney and Comcare (Compensation) [2018] AATA 164 at [21].
In the matter of Roberts, the application was only one day beyond the statutory limit and the Tribunal stated, in refusing the extension of time:
In many cases an extension of 1 day would not be opposed and an order to that effect would be made by the Tribunal quite readily. The brevity of the extension sought does not, however, lead automatically to an order extending the time just as the fact that a lengthy period of time has passed does not automatically lead to the refusal of such an order.[12]
[12] Secretary, Department of Family and Community Services and Roberts (2003) 73 ALD 412 at [16]; Dolan and Comcare (1993) 29 ALD 887 at 888.
In other instances, delays of 43 days have been described as “substantial” and 72 days as “quite significant” providing a basis for a refusal of an extension of time.[13]
[13] WZAUQ v Minister for Immigration and Border Protection [2016] FCCA 152 at [8]; WZATA v Minister for Immigration and Border Protection [2016] FCCA 305 at [10].
As noted, in Roberts with just one day’s delay the extension of time was refused whereas in Berkelaar, where the time delay was five years, an extension of time was granted.[14] In 2020 the Tribunal saw fit to grant an extension of time to an applicant who had lodged her request well in excess of eight years after the reviewable decision because although “the delay in this matter is very substantial”, nevertheless “the issues sought to be considered in a review are also of importance.”[15]
[14] Berkelaar and Comcare [1997] AATA 12015.
[15] SPWX and Secretary, Department of Social Services (Social services second review) [2020] AATA 3883 at [49].
MS ZAITER’S APPLICATION
The Respondent originally accepted the Applicant’s claim for compensation under the SRC Act on 30 May 2011. Thereafter various amendments were made in relation to aspects of the Applicant’s claim including an amendment to the accepted compensable conditions (on 13 October 2011) and a decision to decline treatment for certain psychologist consultations (on 29 October 2021).
The Applicant sought internal reviews of these decisions and on 30 November 2021 the Respondent revoked the original determination of 30 May 2011 as amended on 13 October 2011. That decision is subject to an ongoing application for review before this Tribunal which was lodged on 8 December 2021. The Tribunal notes that the Applicant has several other matters before it related to a variety of claims the Applicant is pursuing against Comcare. None of those is relevant in this application.
On 4 January 2022 the Respondent made a further decision affirming the decision made originally on 29 October 2021 (related to psychiatric support) and it appears that the Applicant received notice of that decision on 7 January 2022.
Under the AAT Act the Applicant then had a period of 28 days in which to lodge an application for review.
Prescribed time for making applications--general
29(2) Subject to subsection (3), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:
(a) if the decision sets out the findings on material questions of fact and the reasons for the decision--the day on which a document setting out the terms of the decision is given to the applicant;
It is not an absolute requirement that reasons be given for a delay in lodging an application;[16] nor should an applicant necessarily be disadvantaged because his/her representative caused delays;[17] nor should evidence that an applicant was pursuing an alternative course of action in support of their application be discounted.[18]
[16] Comcare v A’Hearn (1993) 119 ALR 85 at 88; McKenzie and Secretary, Department of Social Security (1998) 54 ALD 281 at [25].
[17] Crick and Prosegur Australia Pty Ltd [2016] AATA 313 at [22]-[24].
[18] Doyle v Chief of General Staff (1982) 42 ALR 283 at 286.
In these proceedings, the 28-day period expired on 8 March 2022, but the application for review was not lodged with the Tribunal until 17 May 2022, a period of four months and 14 days overdue.
HUNTER VALLEY REASONS
The Tribunal now turns to the tests established in Hunter Valley, bearing in mind that the calculus must be made on the basis of considering “all the circumstances”.
Reasons for delay
Put simply, the Applicant claims that her solicitors “fumbled the ball”.[19] She gave them instructions to proceed on her behalf to appeal against the 4 January 2022 decision and they failed to do so.
[19] Applicant’s Written Submissions for Applicant’s Extension of Time Application (Submissions) dated 11 July 2022 at [20].
Apparently, correspondence between the Applicant and Comcare was automatically directed to her solicitors and they, having received the Comcare decision on 7 January prepared a draft application for review on 24 January 2022. That draft was sent to the Tribunal and acknowledged in the Tribunal’s records system on that date. However, thereafter the solicitors failed to complete and submit a full application within the prescribed 28-day period. It was only when this error was subsequently identified[20] that a formal application for review and EOT application was lodged with the Tribunal on 17 May 2022. Even then, the Applicant’s solicitors attached an incorrect copy of the confirmation email for the draft application and subsequently filed the correct confirmation email on 2 June 2022.
[20] Application for Review of Decision dated 17 May 2022. This error was identified when it became clear to the Applicant’s solicitors that they had not received the T-documents in this matter.
The Applicant presses a claim that she should not be prejudiced by the failings of her solicitors. The authorities on this matter are not entirely of one opinion.
In dealing with an application for an extension of time to bring proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth), the Court in Duff and Others v Freijah and Others stated:
It is well established that delays by a solicitor are visited upon the client when those delays are relevant to limitation periods or matters involving want of prosecution.[21]
[21] (1982) 43 ALR 479 at 484 per Northrop J.
This view was challenged in Jess v Scott and Others[22] where the Full Federal Court came to the conclusion that a failure of solicitors to act could constitute “special reasons” for allowing an extension of time application. This was amplified by Hill J in setting aside a decision of this Tribunal which relied upon the reasoning in Duff not to consider a failure by solicitors to constitute special reasons leading His Honour to say, in reference to Scott:
However, over the years the attitude of the courts has changed and, as the actual decision in that case shows, the solicitor’s delay may itself constitute “special reasons.”[23]
[22] (1986) 70 ALR 185.
[23] A’Hearn v Comcare (1993) 18 AAR 22 at [26].
This decision was upheld on appeal with the Full Bench stating[24]:
11. In our view, the primary judge was correct in concluding that the reasons for decision reveal an error of law on the part of the Tribunal. The error was that the Tribunal considered that what is found was an inexcusable delay on the part of the solicitors could not constitute an acceptable explanation for the delay in making the application.
…
13. A consistent thread thus revealed in the reasoning is that the Tribunal considered that delays by a solicitor were to be visited upon a client. Thus, despite the inexcusable delay on the solicitors' part that the Tribunal found, it was able to say that there was, "no acceptable explanation whatsoever" for the delay. This approach cannot stand in the light of modern authorities such as Jess v Scott (1986) 12 FCR 187: see also Lighthouse Philatelics Pty Ltd v Commissioner of Taxation (1991) 32 FCR 148 at 156.
[24] Comcare v A’Hearn (1993) 119 ALR 85.
A case raising very similar issues as those in these proceedings is Zanbergs[25] where the Tribunal found, in considering the Hunter Valley principles:
These principles are not to be applied mechanically. All of the circumstances of the case must be considered, the overriding consideration being whether it is reasonable in all the circumstances to grant the extension.
The respondent submits that Ms Zanbergs cannot rely on the failure of her legal representative to make her application in time as an explanation for the delay. I accept that an applicant who, for example, does little or nothing to pursue an application, or fails to act on advice, or gives inconsistent or ambiguous instructions, cannot be said to have an acceptable explanation for delay merely because her solicitors also delayed matters. Nor should delay by a legal representative be sufficient reason if the weight of other considerations is against an extension of time. I am satisfied neither is the case here.
The respondent says this is not a case where the fault lies entirely with Ms Zanbergs’ legal representatives, that her application to the Tribunal makes clear that she gave instructions to delay making her claim pending receipt of medical evidence and advice as to her prospects. I do not agree. Mr Adams’ and Mr Barter’s evidence shows otherwise. They accept responsibility for the delay. There is no evidence Ms Zanbergs gave the instructions suggested.
Nor do I agree that Ms Zanbergs was aware of her rights and rested on them. Her conduct makes clear that she has sought to have the decision reviewed at every step. She sought reconsideration within time when that was available to her. She made inquiries about the time for seeking review by the Tribunal of the reconsideration decision and instructed a solicitor well within the 60 days available to her. I accept that she made enquiries of Mr Adams as to the progress of her matter. Everything she has done is consistent with an intention to proceed. I do not accept that the documents before the Tribunal indicate a different intention. It cannot be said that she rested on her rights.
[25] Zanbergs v Commonwealth Bank of Australia [2014] AATA 866 at [26]-[29].
The Tribunal finds that the explanation given by the Applicant for the delay in lodging her application is a reasonable and acceptable one, revealing no direct failure on her part but rather administrative incompetence on the part of her representatives. She should not have to bear the consequences of that incompetence.
Applicant resting on their rights
It follows from what the Tribunal has said about the reasons for the delay that it accepts that the delay was caused by the (in)actions of the Applicant’s solicitors and that the Applicant herself had been active in pursuit of her case by entrusting them with its management and carriage. The Applicant had the right to expect that her instructions were being followed and there was no immediate demand upon her to pursue her solicitors more vigorously than she did.
The Applicant has not rested on her rights.
Prejudice to a respondent
There is a degree of confusion in the Respondent’s submissions on this point. In its formal written statement, the Applicant asserts (at [28]):
There is specific prejudice to the respondent in light of the delay. The application relates to a claim for psychological treatment from 3 November 2020 to 23 July 2021. The delay in commencing proceedings will prejudice the respondent’s ability to investigate the claim and assemble the evidence necessary to properly present its case before the Tribunal.
Before the Tribunal, when asked to make a further submission on the issue of “prejudice”, Ms Gorman, on behalf of Comcare said:[26]
“Comcare accepts there is no specific prejudice rather noting there’s prejudice in the very broad sense by reason of the delay that was set out in Carney.[27]”
[26] Recording of proceedings at 20:44.
[27] Referring to Carney and Comcare [2018] AATA 164.
Mr Mrsic, on behalf of the Applicant then submitted:
“I note Ms Gorman’s concession in terms of prejudice in the sense that she says there’s ‘no specific prejudice in this case’ and obviously you need to take on board that concession when you look at the question of prejudice”.[28]
[28] Recording of proceedings at 24:50.
In case Ms Gorman misspoke and the Respondent maintains the position of its written submission the Tribunal will address the question on that basis.
Generally specific prejudice to a Respondent arises where there is a reasonable prospect that, because of the delay occasioned by the late lodgement of an application, it becomes difficult or impossible to gather material necessary to present the Respondent’s case. Files or records may be lost or destroyed, witnesses may no longer be available, or the gathering of fresh evidence may impose an intolerable burden on a respondent. [29]
[29] Noonan and Comcare (Compensation) [2019] AATA 515 at [25].
None of that appears to be the case in this instance. As already noted, the Applicant and Comcare have been engaged in a variety of proceedings over many years some of which are still on foot. The files are live and accessible. The length of the delay is not so excessive as to put Comcare in an untenable position in terms of its ability to respond.
It is true, as McHugh J pointed out that good public policy requires disputes to be settled quickly. There is a strong public interest in achieving finality in decision-making:
Time limits for review of administrative action should be observed in order to assist the proper administration of government agencies. There is also a public expectation that there be a degree of certainty of time limits.[30]
[30] David and High Court [2009] AATA 448 at [10].
Everyone from Hamlet to Lord Hailsham[31] rails against the law’s delay and there is always the need to avoid the nightmares of Jarndyce and Jarndyce.[32]
[31]R v Lawrence [1982] AC 510 at 517: “Where there is delay the whole quality of justice deteriorates”.
[32] Charles Dickens, Bleak House (Penguin Books, 1996).
The AAT Act itself has as an objective to provide a review mechanism which is “fair, just, economical, informal and quick” (s 2A(b)). However, speed and efficiency do not have to come at the price of fairness and equity and the Tribunal accepts that it should be “guided by what the justice of the case requires”.[33]
[33] Brown v Commissioner of Taxation [1999] FCA 563 at [59].
Unlike the matter of Emery[34] upon which the Respondent relied, in this instance there is no real example which can be given whereby an extension of time in this case would result in “adverse effects upon” the Respondent. In any case, the applicant in Emery had clearly rested on their rights.
[34] Emery and Comcare (Compensation) [2016] AATA 647 at [31].
The Tribunal finds that there is no prejudice to the Respondent. While absence of prejudice is not in itself sufficient to establish a case for an extension of time,[35] neither in this instance does it mitigate against the decision to grant an extension.
[35] Peters v Comcare [2013] FCA 808 at [16] per Bromberg J.
Prospects of success
In Kuljic von Doussa J explained:
One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal. If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal. Two questions therefore arise on the papers before the Court in this case: (1) whether an acceptable explanation for the delay has been proffered; and (2) whether, on the merits, there is any prospect of the appeal succeeding.[36]
[36] Kuljic v Secretary, Department of Social Security [1994] FCA 886 at [6].
Similarly, in Afu Bromwich J stated:
The merit threshold for the grant of an extension of time is not especially onerous. It will seldom be in the interests of justice to grant an extension of time where there is little or no prospect of success, not least because of the additional resources that may need to be expended. However, unless the grounds are hopeless on an impressionistic reading of them that is without the benefit of detailed argument, such that it can be confidently concluded that the grounds must fail, the better approach may be to grant the extension of time and then consider the grounds properly and with the benefit of full argument. In this case, an impressionistic approach to the proposed grounds of review does not warrant the epithet of “hopeless”. The Court has had the benefit of full argument on those grounds, such that there is no question of any additional resources being expended by the grant of an extension of time. It follows that the appropriate course is to grant the extension of time and consider the grounds advanced in full.[37]
[37] Afu v Minister for Home Affairs [2018] FCA 1311 at [3]. Citations omitted.
Expressly however, the Tribunal is not empowered to delve so far into the application as to risk prejudging any outcome which might result from a full merits hearing.
The High Court made this explicit, holding that:
The understanding of counsel for the appellant as to how the Court would examine "the merits" was consistent with the practice of the courts in a number of common law jurisdictions dealing with applications to extend the time for appealing. In R v Secretary of State for the Home Department; Ex parte Mehta, for example, Lord Denning MR said:
"We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the 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."[38]
[38] Jackamarra v Krakouer [1998] HCA 27 at [3] per Brennan CJ and McHugh J; at [66] per Kirby J. Citations omitted.
The Respondent contends that “there is limited merit in the application”[39] and gives several reasons why this might be the case. These include their contention that the Applicant does not have an accepted condition under section 14 of the SRC Act, the fact that another similar claim for major depression had been declined by Comcare on 22 April 2022 and the absence of submitted treatment plans. The Respondent also asserts that the treatments in question did not appear to meet the clinical framework for delivery of allied health services.
[39] Respondent’s Submission Opposing an Extension of Time (Submissions) dated 1 June 2022 at [38].
As to this latter claim, I made the point in Antonious that conformity with the requirements of the Clinical Framework for the Delivery of Health Services (the Framework), used as a guide by Comcare in making decisions under section 16 of the SRC Act, is not a statutory requirement. Unlike situations dealing with the Ministerial Directions under the Migration Act 1958 (Cth) for example, failure to conform with the Framework is not in any sense fatal to an application.[40]
[40] Antonious and Comcare (Compensation) [2018] AATA 3968 at [46]-[47].
The Applicant draws attention to a report by Dr Jeffrey Bertucen (dated 1 March 2021) who was engaged by the Respondent to undertake a medico-legal assessment of Ms Zaiter. In response to two specific questions:
“If you consider that Ms Zaiter suffers, or has suffered, from a condition(s) that was contributed to in a material degree by her employment by the Commonwealth, do you consider that the effects of that condition continue?”
and:
“Do you consider Ms Zaiter reasonably requires any medical treatment in relation to any work-related psychological condition she suffers from (if any)?”
Dr Bertucen answered “Yes”.
The Applicant submits that this is prima facie evidence that they have a strong case to advance against the Respondent while the latter in its written submission to the Tribunal asserts that Dr Bertucen’s report does not, in material respects provide such comfort.[41]
[41] Respondent’s Submissions dated 1 June 2022 at [10].
It is clearly not the responsibility of this Tribunal to enter into debate about the validity of Dr Bertucen’s conclusions nor any of the other claims advanced by the Respondent about this, or about other relevant claims that may have been declined.
However, what is clear is that there is a prima facie case in support of the Applicant’s claim that she has suffered a compensable injury and that treatment is required for it. The Tribunal notes that the Respondent itself does not dismiss the claim as being without any foundation but rather that it is “limited”. In Taylor I accepted that once a prima facie case has been established so have the grounds for granting an extension of time in order to allow the full and proper hearing of the merits of the claim.[42]
[42] Taylor and Comcare (Compensation) [2018] AATA 972 at [39].
The Tribunal finds that the “merits” test as set out in Hunter Valley has been met and that, as a result, there are not unreasonable prospects of the Applicant being successful in her application which should thus not be prevented from being heard.
Prejudice to the general public and fairness between applicants
These two Hunter Valley elements may be taken together as they relate primarily to the same issue, namely the position of this application vis-à-vis others before the Respondent.
There is no doubt that the concept of fairness (hard as it may be to define) implies that those who follow the rules should be accorded preference over those who do not.
In Doumbouya, finding against an extension of time, the Tribunal stated:
…any wider prejudice to the general public in terms of disruption to established practices is also a relevant consideration for the Tribunal in considering whether or not to grant an extension of time. The Tribunal further notes that an objective of the Tribunal is to provide a mechanism of review that “promotes public trust and confidence in the decision-making of the Tribunal” (s 2A(d) of the AAT Act). If lengthy extensions are granted by the Tribunal, this confidence may be undermined. Fairness as between the Applicant and other persons in a like position is also relevant. Other Applicants who have lodged applications out of time have previously been denied review by the Tribunal, and others may not have sought review at all because the statutory time limit has passed.[43]
[43] Doumbouya and Secretary, Department of Social Services (Social services second review) [2021] AATA 880 at [23].
Applicants who do not lodge an application within the time provided should be required to clear more hurdles than those who do. In some Commonwealth statutes time limits are absolute, and this is especially so in areas of migration law. However, where extensions of time are permissible the fact that they are mitigates against an absolute rule that prejudice to those who have met the requirements can operate to render that right nugatory.
On balance, this aspect of consideration does weigh against the Applicant although not to any determinative extent.
CONCLUSIONS
It is important to restate that decisions about such applications for an extension of time are made taking into account the unique facts of each application and with primary regard to whether it is “reasonable” to grant an application “in all the circumstances” put to the Tribunal.
The Applicant has demonstrated an acceptable reason for the delay in her application and the application itself is not without some prospect of success. At the very least it is worthy of being advanced and tested. The Applicant has been active in pursuit of her rights and has not rested upon them.
While there may be some prejudice to the Respondent (although this is unclear given the possible concession made at the interlocutory hearing) it is not of any gross proportions and would not seriously impact upon the Respondent’s normal operations. There is a general prejudice to the public interest, in granting this (or almost any other) out of time application and it does impact upon the rights and opportunities of other applicants who have adhered to the requirements of legislation.
However, in all the circumstances, the larger issue of the interests of justice are in allowing the application to go forward, and this Tribunal finds that it is reasonable in all the circumstances to grant the Applicant’s application for an extension of time.
DECISION
Pursuant to subsection 29(7) of the AAT Act the Tribunal extends the time for making an application for review in this matter to 17 May 2022.
I certify that the preceding 64 (sixty -four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
....................................[sgd]....................................
Associate
Dated: 19 July 2022
Date(s) of hearing: 12 July 2022 Counsel for the Applicant: Mr J Mrsic Solicitors for the Respondent: Ms E Gorman, Australian Government Solicitor
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