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EXTENSION OF TIME - review proceedings commenced outside time limit - discretion to extend time - discretion exercised in interests of administration of justice - related proceeding commenced within time for review of closely related condition - similar questions of fact - prejudice to respondent considered - interests of administration of justice favours grant of extension of time.

Administrative Review Tribunal Act 2024 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 201 CLR 194

Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441

Comcare v Mooi [1996] FCA 1587; (1996) 69 FCR 439

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344

Lucic v Nolan [1982] FCA 217; (1982) 45 ALR 411

Tu'uta Katoa v Minister for Immigration, Citizenship and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579

Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528

1. Ms Renata Buchanan requests the Tribunal exercise its discretion to allow review of a decision made by Comcare on 13 May 2022. Ms Buchanan requests an extension of the period to 6 June 2025, the date when she lodged the review application. There is provision for the exercise of a discretion to extend time provided by subsection 19(2) of the Administrative Appeals Tribunal Act 2024 (Cth) (ART Act).
2. Ms Buchanan lodged a claim for compensation in respect of an injury identified only as a 'psychological injury' on 17 August 2021. That claim was rejected on 26 October 2021 by Comcare pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) on the basis that her employment with the Department of Home Affairs did not contribute to a significant degree to that condition. Ms Buchanan requested a reconsideration of that decision in writing, but only on 9 April 2022, over 5 months after the determination was made.
3. Comcare reviewed the decision, notwithstanding that the time for requesting reconsideration was only 30 days from the date of the determination. On 13 May 2022, Comcare made a reviewable decision affirming the primary determination of 26 October 2021. The reasons for doing so were essentially the same as in the primary decision from the previous October.
4. By rule 5(3) of the Administrative Appeals Tribunal Rules 2024 (the Rules) the general window in which to apply to the Tribunal for a review starts from the day the reviewable decision is made, and ends 28 days after the day the applicant is given notice of the reviewable decision.
5. However, that rule is altered by subsection 65(4) of the SRC Act in relation to decisions made in relation to compensation for employment injuries. The period allowed for commencing review in the Tribunal ends 60 days after the date that the applicant is given notice of the decision. In the application for review, it was stated that the applicant was given notice 'CIRCA 20/05/22' and no challenge was raised to that statement. Taking the date when notice was given as 20 May 2022, the period for lodgement of an application for review ended 60 days later, on 19 July 2022.
6. The application for review was lodged with the Tribunal on 6 June 2025, 2 years, 10 months and 8 days outside the period allowed. Without granting an extension of time the review cannot proceed. Ms Buchanan seeks the Tribunal's grant of the extension to the date when the application was lodged.
7. Subsection 19(2) of the ART Act provides that 'the Tribunal may extend the period if the Tribunal considers that it is reasonable in all the circumstances to do so.' The presence of the word 'may' in the provision shows this to be a discretionary provision. A discretion is broadly considered a decision-making process where no one consideration or combination of considerations is necessarily determinative of the result. The latitude given to the decision maker as to the choice of the decision to be made may be wide or narrow.[1] That latitude varies with context and will need to align with statutory objects.
8. The objects of the Tribunal are set out in section 9 of the ART Act:

9 Objective > > The Tribunal must pursue the objective of providing an independent mechanism of review that:

(a) is fair and just; and

(b) ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and

(c) is accessible and responsive to the diverse needs of parties to proceedings; and

(d) improves the transparency and quality of government decision-making; and

(e) promotes public trust and confidence in the Tribunal.

1. A discretion to extend the period within which a proceeding may be commenced has been considered repeatedly over the years by the courts. The High Court of Australia, considering a similar time limitation for the lodgement of an application for review of a decision under the Migration Act 1958 (Cth) in Tu'uta Katoa v Minister for Immigration, Citizenship and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 (Katoa), held that other than the interests of the administration of justice, there are no other relevant mandatory considerations. The provision is not framed in the interest of the particular applicant other than the broader interest of the administration of justice. Any number of factors may be weighed if relevant to the question to be determined, although the well-established principles for the consideration of an application for extension of time stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348-349 [2] (Hunter Valley) would be those for which proper reference would be made.[3]
2. It is usual to consider the extent of delay and for the applicant to give a satisfactory explanation of the delay. In Hunter Valley it was considered that for an applicant to show an 'acceptable explanation of the delay' and that it was 'fair and equitable in the circumstances' to extend time was a 'pre-condition to the exercise of discretion' in his or her favour.[4] That statement was somewhat modified in Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441 (A'Hearn) relation to an application in relation to extension of time in a compensation matter where the Full Court clarified:[5]

We note that the Tribunal used language that might be taken to suggest that it is a pre-condition for success in such an application that an acceptable explanation for the delay must be given. Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential precondition: see Dix v Crimes Compensation Tribunal [1993] VicRp 21; [1993J 1 VR 297 at 302 per Brooking J, with whom Fullagar and Tadgell JJ agreed; cf Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348 and Maric v Comcare [1993] FCA 31; (1993) 40 FCR 244 at 247-249.

3. Relevant to the explanation for delay is consideration of any steps taken by the applicant 'other than by making an application for review under the Act' to indicate that the finality of the decision was not accepted, or if the applicant's conduct might be said to demonstrate she rested on her rights (Hunter Valley).[6]
4. Another consideration is whether the extension, if granted, would prejudice the respondent, Comcare.[7] The loss of evidence due to relevant officers having diminished or no recollection of circumstances and events is one factor to be weighed.
5. Wilcox J in Hunter Valley did go on to say, 'the mere absence of prejudice is not enough to justify the grant of an extension.' He pointed out that public considerations such as the unsettling of other people or established practices might intrude such that the extension of time could not be permitted.[8] In particular, reference was made to the 'proper public concerns' enumerated in Lucic v Nolan (1982) 45 ALR 411 [9](Lucic) including, 'the need for finality in disputes, the efficient use of public resources, the appropriate allocation and expenditure of public funds, and also where what is in question involves promotion and discipline in the Australian Public Service, the orderly administration of that vast body.' Balanced against that is the observation in A'Hearn v Comcare (1993) 18 AAR 22[10], at first instance, that 'while it is no doubt true that public administration dictates a need for efficiency and finality, perhaps this is not a matter upon which great weight should be placed in a case involving a worker's compensation claim.'
6. Some consideration is also given to the merits of the substantive application.[11] However, this does not require a full hearing of the evidence and a firm conviction that the main application will succeed. There may be circumstances where nothing more is required than to form a view that the application has 'some merit' or is 'reasonably arguable' at an impressionistic level is required. However, the circumstances of the case may require a more detailed examination of the merits is called for. In Katoa it was suggested that such an examination might be appropriate where the delay is lengthy and unexplained.[12]
7. The weighing of all these considerations is dependent upon the facts and circumstances of the case.
8. It is important to note that Ms Buchanan has lodged a valid application for review of another decision made by Comcare in relation to a claim for compensation lodged after the initial claim. The applicant's counsel advised during submissions that a new application (numbered 2025/6192) is a review of a decision made by Comcare on 18 July 2025 to deny liability to pay compensation (pursuant to section 14 of the SRC Act) for an injury characterised as 'fibromyalgia'. This review proceeding (the fibromyalgia review) was commenced by an application dated 25 July 2025 and will progress through the ordinary preliminary stages to a hearing.
9. The continuation of the fibromyalgia review is relevant to the consideration of this extension of time claim (matter number 2025/4392) concerning the rejection of the claim for 'psychological injury' (the psychological review). This was recognised by Comcare in its reasons for rejecting the psychological injury. The reviewable decision of 13 May 2022 identified the close relationship between the fibromyalgia condition and the psychological condition:

I find that the available medical evidence indicates that while you experienced some stress and anxiety in 2018, you were not diagnosed with a clinically significant psychological condition until 11 August 2021. I find that you were being treated for fibromyalgia throughout 2019 and 2020 and, while this included some psychological symptoms, you did not have a distinct psychological condition at that time and your incapacity for work during that time was as a result of your fibromyalgia." > > ... > > While there are a number of references to your employment dating from 2018 through 2020 and 2021, most of these occur in the context of stress and some allegations of bullying, but they are not connected to a diagnosis of a psychological condition separate to your diagnosed fibromyalgia. > > On balance, I therefore find that your condition was not significantly contributed to by your employment with the Department of Home Affairs.

10. Fibromyalgia presents as a pain response not necessarily localised to any physical wound or internal tissue damage and it frequently associated with psychological symptoms as well as psychological stressors. There is a potential finding by a Tribunal on review that the fibromyalgia is a form of psychological injury or, in part, aggravated by psychological injury. Disentangling two distinct injuries may become impossible. Comcare's decision maker set out a summary of the medical evidence in the 13 May 2022 reviewable decision which, accepting the broad accuracy of the summary, reveals a very close relationship between psychological stressors and the pain response as well as purely psychological reactions:
    • On 2 July 2018 you first complained of workplace bullying to your general practitioner, stating you had made an official complaint and being moved under a new boss temporarily. You complained of headaches, usually one or two per month, but getting worse since work had been more of a stress. In a further appointment on 6 July 2018, you report your headache was much better when off work and you didn't experience headaches when the "bully" is away from work.
    • On 11 May 2019, Professor Steve Vucic (neurologist and neurophysiologist) provided a medical report in which he notes you presented with neurological symptoms at the same time as significant stress and bullying at work. Professor Vucic also notes that even though you changed positions, your symptoms did not settle.
    • You went on extended leave in July 2019, for which you provided medical certificates identifying a "medical condition". In an email of 7 November 2019, Ms Sally Reay-Young (Director) advised Mr Brett Schuppan (Assistant Secretary) that she had spoken to you, and you explained you had been diagnosed with a neurological condition for which you were trialling medication. You also advised you were unlikely to be able to return to full time work and would be in contact again in four weeks, after you had attended your specialist.
    • On 31 July 2019 you attended Dr Hamilton and reported it had been very stressful at work, your supervisor had been particularly difficult, and you felt bullied. You were not sleeping well and having difficult cycling, as well as experiencing ruminating thoughts. Dr Hamilton made a note of anxiety disorder and recommended you explore psychologists and return for a mental health care plan if you wished to go ahead.
    • On 25 November 2019, Dr Peta Pentony (rheumatologist) diagnosed you with fibromyalgia. She notes that management of the condition was multifactorial and may include antidepressant medication, which is effective for neuropathic pain, and psychological support. Dr Pentony also notes you were already seeing a psychologist but considered it would be ideal for you to see someone with an interest in the management of chronic pain and fibromyalgia.
    • In a report dated 16 January 2020, Dr Andrea Kysely (clinical psychologist) notes you had been referred for clinical assessment and treatment of anxious symptoms relating to your recent diagnosis of fibromyalgia and subsequent adjustment. She states you had made positive progress over the six sessions, noting a general improvement in mood and anxious symptoms.
    • On 2 November 2020, Dr Ramil Jain (pain medicine physician) records that you had fluctuating mood, but you were not too depressed. He states that you report that you could not think of any stressors other than work and you that at the beginning of the year, there was an incident of bullying at work that must have triggered or worsened your symptoms. Dr Jain comments that you have significant psychological impact with the pain from your fibromyalgia.
    • In a medical report of 27 November 2020, Dr Ling San Wong (rheumatologist) notes your reports of pain starting in around April 2018. She said that you mentioned that at the time, there had been a stressful work event which had a psychological impact; however, you also reported personal stressors, which you did not address at the time, and you felt it might have triggered your somatic symptoms. Dr Wong notes you were experiencing insomnia, depression/anxiety, irritable bowel issues, facial pain/jaw pain and chronic fatigue. She considers you had features of fibromyalgia and were to continue taking Cymbalta (Duloxetine) for that condition.
    • During a consultation with Dr Stephanie Cheung (general practitioner) on 5 March 2021, you reported being under a lot of stress, noting you were seeing a lot of specialists, but nothing was helping. Dr Cheung notes your main issues were chronic fatigue, inability to function and feeling completely debilitated on a daily basis. You reported you could no longer handle day-to-day tasks, let alone a job and you were on income protection. You stated you were worried about your finances and wellbeing, your health, and your future.
    • In a medical report dated 24 May 2021, Dr Wong provides a summary of your situation which included, among other physical complaints: "fibromyalgia, soft tissue pain, history of headache and tingling, paraesthesia, insomnia, JBS, and depression/anxiety (?OCD) somatic features suggestive of fibromyalgia ... ". Dr Wong notes that you had been experiencing chronic pain for two and half years, had been off Duloxetine and had less mood issues and no further issue with concentration.
    • In a medical report of 8 June 2021, Dr Kris Nowakowski (imaging cardiologist) notes your reports of intermittent racing of the heart while taking Pregabalin and Duloxetine. He notes you have arthritis, chronic back pain, chronic fatigue syndrome, fibromyalgia, obstructive sleep apnoea syndrome and migraine.
    • On 22 June 2021, an incident report was lodged on your behalf for what was described as multiple incidents starting in March 2019. The incident report outlined the following:
      • During February to August 2018, Mr Michael Fritschy (your Director) engaged in numerous harassing behaviours towards you, often singling you out for attack over alleged workplace behaviours.
      • Mr Fritschy made comments about your appearance that you found inappropriate, and you became increasingly withdrawn and stressed during this time, as well as experiencing anxiety attacks.
      • You referred to a particular meeting in August 2018, after which you claimed that Mr Fritschy pulled you aside and spoke to you about comments made, using threatening and menacing body language and tone. During this meeting you state you became very distressed and told him you no longer wanted to work with him.
      • You state you received no support and you found going into the office to be increasingly difficult and isolating, even though you had moved to another team under Ms Jeannine Geach.
      • You refer to another meeting with Mr Fritschy, in which you claim he accused you of trying to steal another staff member away to a new section. You said you had a complete breakdown, sobbing in his office, and he left you there to go to another meeting.
      • In late 2019 a new Director started (Ms Sally Reay-Young), whom you felt started on a very negative footing and exhibited nasty and toxic behaviour.
      • You state your stress and other symptoms became worse and you continued to see your general practitioner, subsequently taking six months leave from work following a medical diagnosis.
      • You refer to a meeting with Ms Reay-Young, in which you claim she pulled you into an office to berate you for raising an overpayment issue with Mr Schuppan. You state you left the meeting feeling distressed, stressed and disheartened. You reported this to Mr Schuppan, who discussed it with Ms Reay-Young and you state that you were then subjected to bullying by her.
      • You state that since these events you have been unable to work due to physical and psychological symptoms.
    • In a medical report dated 27 July 2021, Dr Nowakowski records that you had experienced heart palpitations since your last review and you were unsure whether these incidents followed or preceded your anxiety.
    • On 7 September 2021, the Workplace Behaviour Team provided the following information from their file:
      • On 29 June 2018, a Team Member met with you regarding the alleged behaviour of Mr Fritschy. In this meeting, you described instances where you felt Mr Fritschy's behaviour towards you was inappropriate and stated you had been provided with no guidance or support in your work. You said you had a new role in another team, but Mr Fritschy continued to call you into his office. You stated this occurred on 29 June 2018 and he berated you, after which you yelled back and swore at him. You state you were accessing the EAP, not sleeping, and experiencing other symptoms.
      • On 5 July 2018, a Team Member received a call from Mr Fritschy and Ms Geach relating to your move from Mr Fritschy's area due to your behaviour. Mr Fritschy and Ms Geach were seeking advice on how to approach your behaviour in a new work area, as well as addressing concerns around your mental health following your reaction in a meeting the previous week. They advised that you had requested no further contact with Mr Fritschy and you had used EAP. The team member provided advice for a possible mediation between you and Mr Fritschy.
      • No record was found by the Workplace Behaviour Team to support your assertion that you were told by an employee relations staff member that they were shocked and horrified by the behaviour you reported and were amazed you managed to stay. It was noted that such a response would be unlikely due to the need to be impartial. It was also noted that no record of further contact or a formal workplace behaviour complaint was lodged by you with the Workplace Behaviour Team.
    • On 10 September 2021, Mr Schuppan provided a statement in which he notes you had been off work for a prolonged period of illness, but he was never told it was related to stress or mental illness, and he had no recollection of, or correspondence evidencing, complaints relating to bullying and harassment of you. He further states that one of the reasons he moved you to Ms Reay-Young's team was because as an experienced manager with a record of caring well for staff, he felt she would be best equipped to handle your prolonged illness and return to work sensitively.
    • In her medical report of 27 September 2021, Dr Elliott states that your condition is 100% employment related. She comments that until the workplace bullying is removed, she is unable to assess your residual symptoms and can't comment on your ability to return to work. Dr Elliott considered it unsafe for you to return to work until your perceived threat of ongoing workplace bullying is removed.
    • In his medical report of 4 October 2021, Associate Professor Khalid notes that you had been diagnosed with fibromyalgia, and that symptoms of that condition and symptoms of anxiety and depression tend to overlap. He also notes your reports of stress in the workplace, especially in relation to three of your managers. Associate Professor Khalid considers both the fibromyalgia and your perception of bullying and harassment in the workplace contributed to the onset of your condition. However, he considered that your workplace no longer contributed to your condition given your absence from work since at least May 2020.
    • Associate Professor Khalid's supplementary report states that, based on the additional material from your treatment providers, it did not seem as though your employment was the significant cause for the development of your fibromyalgia. He considered your adjustment disorder was in relation to that condition, as well as reported workplace stress. He also maintains the view that any employment related contribution (should it have existed) would have ceased by November 2020. Further, that it is likely that you would have developed an adjustment disorder irrespective of your employment factors, as a result of the fibromyalgia.
    • Dr Chow's report dated 12 December 2021 states that your clinical presentation, especially pain, was responding to a potent and stronger antidepressant and, as such, it would appear your fibromyalgia has a psychological contribution to it.
    • In a report dated 1 February 2022, Mr Randolph Sparks (psychologist) states that you presented initially with chronic pain, but it became clear you were also experiencing depressive and anxiety symptoms. He notes you had reported experiencing significant workplace bullying, which has had a detrimental effect on your coping and has resulted in the anxiety and depression.
11. The review of the fibromyalgia condition will proceed in the normal course but, given the close relationship in both nature and development between fibromyalgia and what is described as a 'psychological injury', there will inevitably be a need for the Tribunal to explore the psychiatric evidence presented. Attempts to exclude consideration of psychological injury will likely prove fruitless and will enhance the potential for making errors in decision making.
12. Comcare accepts that there is a mental condition beyond the bounds of normal mental functioning that might be accepted as an injury.[13] Comcare apparently accepted the opinion of Professor Khalid expressed in his 4 October 2021 report that such a condition was diagnosable as 'chronic adjustment disorder with mixed anxiety and depressed mood' where the symptoms of fibromyalgia may overlap.
13. Proceeding from the opinion that there were two disorders, Professor Khalid considered that the employment 'no longer contributed' to the psychological condition given the applicant's absence from work since May 2020. Whatever else might be said, it must be inferred that the opinion favoured by Comcare accepts that employment did contribute to the psychological condition. Comcare had to hand a supplementary report from Professor Khalid, from which it was concluded that 'it did not seem as though your employment was the significant cause for the development of your fibromyalgia. He considered that your adjustment disorder was in relation to that condition, as well as reported workplace stress.' From that, Comcare concluded that the psychological condition 'was significantly contributed to by non-employment factors; specifically ongoing fibromyalgia, the related symptoms of that condition, and other health concerns requiring intensive investigation.'
14. However, that did not address the clear opinion of Professor Khalid that the psychological condition was related to the reported workplace stress. Comcare might well form the view that a significant contribution might be made by a non-employment injury, however, that does not exclude the workplace stress, which the expert opinion accepted as having been experienced. There is no rule that there can only be one single significant contributor to a mental ailment. That Comcare considered that employment did not significantly contribute to the applicant's injury did not relieve it from considering the significance of the workplace stressors identified as contributory by Professor Khalid.
15. It might be inferred from the decision that, because Comcare adopted Professor Khalid's opinion that workplace stressors were no longer contributing given absence from work since May 2020, then the applicant's injury was not compensable when the decision was made. This is a conclusion open on the reading of the Comcare decision. If so, it is wrong in law. The question before the decision maker was whether there was an injury, the subject of the claim, which resulted in either incapacity for work or impairment, and had the requisite connection with employment (as set out in the definition of 'injury' in section 5A(1) of the SRC Act). Comcare was not called upon to determine whether the injury persisted. Even in the case of a decision as to whether the injury continued to result in some compensable entitlement, the test is not whether there is a continual employment contribution to the injury at some subsequent date to the onset of the injury. I have elsewhere given detailed reasons as to the inapplicability of such an approach in other decisions and I would apply them to the present matter (see Re Kumar and Comcare (2025) 185 ALD 246).[14]
16. Furthermore, given Comcare's acceptance of the presence of a coincidental, contributory ailment of fibromyalgia, it was obliged to weigh the workplace stressors contribution in the light of her susceptibility given as a possible predisposing factor (by reason of paragraph 5B(2)(c) of the SRC Act).
17. Finally, there must be some potential for a Tribunal to find in the fibromyalgia review that the applicant's fibromyalgia was in fact contributed to, to a significant degree, by employment. Were the Tribunal to form that conclusion on the evidence and set the decision aside, the whole rationale for the refusal of the psychological claim falls away. The reviewable decision found no other objection to the claim for psychological injury. No statutory exclusionary factor was identified, and in particular, no allegation of reasonable administrative action taken in a reasonable manner (specified in subsection 5A(1) of the SRC Act) was addressed.
18. This failure of Comcare's decision maker to ask and answer the relevant question as to the significance of the contribution make by workplace stressors to the psychological condition renders the decision doubtful on its face. As such, the interests of the administration of justice would tend to favour its review.
19. I am not ignoring the further consideration of evidence that regarded the fibromyalgia condition as one which is itself a psychological injury, in part or whole. The claim was not framed in terms of the particular diagnosis given by Professor Khalid in his reports, probably relying on one or other edition of the Diagnostic and Statistical Manual of Psychiatric Disorders. From the above summary of evidence, it would be open to find that the fibromyalgia 'has a psychological contribution to it' (report of Dr Chow, 12 December 2021).
20. The summary of evidence clearly demonstrates a relationship between the psychiatric condition and pain, whether fibromyalgia alone, or with chronic pain (Dr Peta Pentony report of 25 November 2019), or a variety of somatic features including paraesthesia, insomnia, irritable bowel disorder (Dr Wong report of 24 May 2021). The intermingling of these conditions, albeit with some apparent prominence to the fibromyalgia, had understandably resulted in a good deal of confusion as to what disorder, or disorders, are resulting in incapacity or impairment of function.
21. The applicant has not simply ignored her claim for compensation since her initial claim for 'psychological injury' was given a diagnosis by Comcare that she did not advance. The evidence, in any event, pointed to employment contributing to her fibromyalgia that Comcare sees as entirely separate to the injury for which she previously made claim.
22. In the period following the 13 May 2022 reviewable decision, in the psychological claim, Ms Buchanan states that she did seek assistance in challenging the rejection of her entitlements to compensation. She relates that she sought assistance from legal firms with a known background in Comcare compensation matters, including Slater & Gordon, Maurice Blackburn Lawyers and Dean Prail, all without success. Comcare urges me to conclude that this demonstrates that experienced lawyers have considered her case unwinnable and that possibly goes to the assessment of the strength of the case, a recognised factor to be weighed in consideration of giving an extension of time.
23. However, I would firstly conclude that the history of lawyer consultations is also evidence that she did not simply accept the conclusion or merely slept on her rights. Secondly, given the criticism of the reviewable decision's failure to properly ask and answer the correct questions in coming to its conclusion, I would not immediately conclude that the lawyers consulted had in fact arrived at the conclusion that the case was unwinnable. She has now secured legal advisers who will undertake representation in her Tribunal review.
24. I have also reviewed some of the later medical material and considered there is some clear evidence that her combined medical conditions are serious and, particularly in respect of depression, are of a quality that would provide proper explanation for delay. For example, there is a report dated 8 August 2024 from Dr Ling San Wong to the treating general practitioner stating:

Unfortunately she is still quite symptomatic. Her pain is ongoing at least since 2018. She felt that she is getting a lot of chronic fatigue, and she is not coping. She has try to reduce the stresses as she is usually better without the symptom. Her husband has been supportive. She also have 11 years old child. She is trying to attend to go back to work but was not coping with the fatigue and pain. She is having difficulty to do her ADLs. > > Previously as you know she has try multiple medications including anti-inflammatory, antidepressant and also taking Panadeine with combination of Panadol currently as needed ibuprofen. The pain is still not better. She also recently try PEA with no success. > > She have not seen the pain team with a referral to Dr Andrew Watson. She certainly need a a lot of multidisciplinary input to help her to manage with her symptoms. The pain is usually worse in the shoulder area and neck, wrists, shin, ankle but not much of enthesitis currently such as heel or Achilles pain. She mention that the pain is also mostly in the soft tissue area. > > Her mental health have been problematic and she has been trialing suicide attempt. His not able to support herself and feel that she is now working on disability pension. You have try her on new antidepressant but she feel like there is no effect. She mention about the duloxetine and Endep in the past with also query mirtazapine.

25. This report was not prepared with litigation in prospect. It is a report from a specialist rheumatologist with several years involvement in the case to a treating general practitioner. I find the references to a 'suicide attempt' to be indicative of a serious degree of psychological disability. I also find the reference to difficulty with activities of daily living (ADL) and the associated chronic fatigue to be good evidence of a high degree of difficulty in dealing with the pressures of daily living let alone the solo pursuit of litigation without the benefit of legal representation.
26. Taken in all, I accept that Ms Buchanan has given a satisfactory account of the delay in commencing the psychological review.
27. The fibromyalgia review currently before the Tribunal, that was commenced in June 2025, will proceed but it is so intimately related to the psychology review that the tribunal will, in any event, be reviewing the same factual background and the progress and development of the disabling conditions. Given that the same evidence is to be reviewed for employment contribution to the conditions, it is in the interests of administration of justice to allow all questions to be reviewed together.
28. I have noted Comcare's argument that some prejudice will be experienced since some of the employer's supervisory staff (whose actions are alleged to be contributory) are no longer employed by the relevant Department. Comcare submits that the former supervisors against whom allegations of persistent bullying were made were no longer actively employed by the Department and that one employee who the Applicant asserted was a witness to the bullying behaviour advised that he had no recollection of any complaints of bullying or harassment being made by the Applicant. There is a further submission that given the length of time since some of these events, witnesses recollections will be diminished.
29. In Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528 (Wedesweiller) the problem was recognised but, in some amelioration of the claim of lost memory, it was considered:[15]

On the other hand, I must bear in mind that there are departmental records available from which potential witnesses may refresh their recollections and that it is human experience that many persons called upon to recall events which occurred in the past are able to remember a good deal if their minds are applied to the problem properly. ... it may be found that the witnesses, particularly with the aid of documents which are available, will remember sufficient of the events to enable the respondents' case to be properly put. After all, evidence is given in many jurisdictions of events which took place many years before. The frailty of human recollection is well known but, generally speaking, reliable evidence of events long since past is given daily in the courts of this country.

30. From Comcare's own reviewable decision, it is apparent that some investigation of the allegations was undertaken and there are documentary materials to that effect. There is evidence of a 'Workplace Behaviour Team' investigated and reported on 7 September 2021. Comcare asserts that one of the witnesses has no present recollection of any complaints of bullying and harassment. The reviewable decision noted that the same person had made a statement of what he did have a recollection of events surrounding the time of his involvement and such evidence can be weighed with all the other evidence in deciding the compensability of the claimed psychological injury. The other witnesses may no longer employed, but they are still available to give evidence and may refresh their memory from the existing statements made closer in time to the events as well as from related documents.
31. Weighing all the factors, I have concluded that it is in the interests of the administration of justice for the psychological review to proceed and be heard together with the fibromyalgia claim.
32. Accordingly, the Tribunal extends the period during which the applicant may apply for review of the decision of Comcare dated 13 May 2022 to the date of lodgement of the application on 6 June 2025 pursuant to section 19(2) of the ART Act.

Applicant: Mr Allan Anforth, instructed by Lander & Co, Solicitors

Respondent: Ms Josie Dempster, instructed by McInnes Wilson, Lawyers

[1] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 201 CLR 194 at 294-205, per Gleeson CJ, Gaudron and Hayne JJ.

[2] Wilcox J was considering an application for the extension of time within which to commence a proceeding for review of a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

[3] [2022] HCA 28; (2022) 276 CLR 579, 588-589, [12]-13], per Kiefel CJ, Gageler, Keane and Gleeson JJ.

[4] [1984] FCA 176; (1984) 3 FCR 344 at 348.

[5] [1993] FCA 498; (1993) 45 FCR 441, 444, per Black CJ; Gray and Burchett JJ dismissing an appeal from the decision of Hill J setting aside a Tribunal refusal to extend of time within which to commence a review of a compensation matter.

[6] [1984] FCA 176; (1984) 3 FCR 344 at 349 referring to Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283 at 287.

[7] [1984] FCA 176; (1984) 3 FCR 344 at 349.

[8] [1984] FCA 176; (1984) 3 FCR 344 at 349.

[9] [1982] FCA 217; (1982) 45 ALR 411, 416, per Fitzgerald J.

[10] (1993) 18 AAR 22, 26, per Hill J.

[11] [1984] FCA 176; (1984) 3 FCR 344 at 349.

[12] [2022] HCA 28; (2022) 276 CLR 579, 591-592, [17]-[18].

[13] Comcare v Mooi [1996] FCA 1587; (1996) 69 FCR 439 (Mooi) at 443-444 per Drummond J.

[14] (2025) 185 ALD 246, [80]-[116].

[15] [1983] FCA 94; (1983) 47 ALR 528, 534, Shepperd J.