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Zaiter and Comcare (Compensation)

Zaiter and Comcare (Compensation)

Case [2022] AATA 2353 19 July 2022

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Administrative Law

Employment Law

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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

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 Zaiter and Comcare (Compensation)

Details

AGLC: Zaiter and Comcare (Compensation) [2022] AATA 2353
Case: [2022] AATA 2353
Decision Date: 19 July 2022

CaseChat Overview and Summary

This matter concerned an application for an extension of time before the Administrative Appeals Tribunal (AAT) by Mr Zaiter against Comcare. Mr Zaiter sought review of Comcare's decision to decline liability for psychological treatment under section 16 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The statutory period for seeking review had elapsed, with the applicant's solicitors having been instructed but failing to lodge the application within the prescribed timeframe.

The primary legal issue before the Tribunal was whether it was reasonable in all the circumstances to grant Mr Zaiter an extension of time to lodge his application for review. This required the Tribunal to consider the reasons for the delay, whether the applicant had rested on his rights, the prejudice to Comcare, and the prospects of success of the substantive application, as well as the broader considerations of fairness between applicants and the interests of the general public.

The Tribunal considered the reasons for the delay, including the actions of the applicant's solicitors. It weighed these against the potential prejudice to Comcare and the importance of ensuring fairness and access to justice for the applicant. Ultimately, the Tribunal concluded that the interests of justice favoured allowing the application to proceed.

Accordingly, pursuant to subsection 29(7) of the *Administrative Appeals Tribunal Act 1975* (Cth), the Tribunal extended the time for making an application for review to 17 May 2022.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Zaiter and Comcare (Compensation) [2022] AATA 2353

Most Recent Citation

O'Hara and Australian Postal Corporation (Compensation) [2023] AATA 402

Cases citing this decision · 1 of 1 shown

O'Hara and Australian Postal Corporation (Compensation)
[2023] AATA 402 Para 31

…d to have instructed her solicitors to proceed to appeal a decision but they had simply failed to do so.[27] [25] Zaiter and Comcare (Compensation) [2022] AATA 2353. [26] Ibid at [29]. [27] Ibid at [22].…

View all 1 citing cases →

Cases cited in this decision · 32 of 32 shown

Doumbouya and Secretary, Department of Social Services (Social services second review)
[2021] AATA 880 Para 27

…l 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].…
SPWX v Secretary, Department of Social Services
[2020] AATA 3883 Para 14

…” [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…
FCFY v Minister for Home Affairs
[2019] FCA 1222 Para 7

…ian 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].…
Noonan and Comcare (Compensation)
[2019] AATA 515 Para 6

…nger 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].…
Antonious v Comcare
[2018] AATA 3968 Para 18

…8 (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].…
Afu v Minister for Home Affairs
[2018] FCA 1311 Para 14

…hat 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.…
Taylor and Comcare (Compensation)
[2018] AATA 972 Para 23

…nting 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].…
Carney and Comcare (Compensation)
[2018] AATA 164 Para 11

…y 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].…
Re Kim and Minister for Immigration and Border Protection
[2018] AATA 155 Para 10

…] 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].…
Hillman v Australian Postal Corporation
[2017] AATA 1411 Para 7

…ce. [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].…
Emery and Comcare (Compensation)
[2016] AATA 647 Para 11

…erse 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].…
Crick and Prosegur Australia Pty Ltd
[2016] AATA 313 Para 19

…(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.…
WZATA v Minister for Immigration & Anor
[2016] FCCA 305 Para 13

…3] [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].…
WZAUQ v Minister for Immigration
[2016] FCCA 152 Para 13

…“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].…
David v High Court
[2009] AATA 448 Para 8

…tration 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].…
Trudy Zanbergs and Commonwealth Bank of Australia
[2014] AATA 866 Para 28

…re 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].…
Peters v Comcare
[2013] FCA 808 Para 12

…lish 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…
MZYDG v Minister for Immigration and Citizenship
[2009] FCA 1338 Para 26

…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].…
Phillips v Australian Girls' Choir Pty Ltd & Anor
[2001] FMCA 109 Para 7

…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…
Brown v Commissioner of Taxation
[1999] FCA 563 Para 10

…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 an…
Zizza v Federal Commissioner of Taxation
[1999] FCA 37 Para 10

…e 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] A…
Jackamarra v Krakouer
[1998] HCA 27 Para 16

…ail 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.…
Brisbane South Regional Health Authority v Taylor
[1996] HCA 25

…onious 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…
Greenhalgh, M.R. v Composite Buyers Ltd
[1994] FCA 886 Para 10

…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].…
Lighthouse Philatelics Pty Ltd v Federal Commissioner of Taxation
[1991] FCA 667 Para 27

…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.…
Jess v Scott
[1986] FCA 473

…velopments 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, Depa…
Hunter Valley Developments Pty Ltd v Cohen
[1984] FCA 186 Para 7

…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…
Ralkon v Aboriginal Development Commission
[1982] FCA 161 Para 25

…s 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.…
Doyle v Chief of General Staff
[1982] FCA 129 Para 19

…ial 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.…
Secretary to the Department of Social Security v Van Den Boogaart
[1995] FCA 1289 Para 6

…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].…
Berkelaar and Comcare
[1997] AATA 12015 Para 14

…s 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…
[1982] AC 510
[1982] AC 510 Para 9

…ord 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).…

Legislation cited in this decision · 4

Administrative Appeals Tribunal Act 1975 (Cth)
29, 2A 3 mentions (from Para 4)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
14, 16 3 mentions (from Para 1)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
1 mention (from Para 25)
Migration Act 1958 (Cth)
1 mention (from Para 18)