Xardia v Comcare

REASONS FOR JUDGMENT 1 Before me is an application filed by the applicant seeking an extension of time under s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) to appeal a decision of the Administrative Appeals Tribunal made on 17 July 2014. The respondent to the present application was the respondent to the application for review heard and determined by the Tribunal. The respondent opposes the application for an extension of time. 2 The applicant appeared for herself. She indicated that she was content for me to proceed to hear the application for an extension of time today. Unfortunately, no intelligible submissions were advanced by the applicant in support of her application. Rather, the applicant instead delivered a tirade about which I need say nothing more except that it is quite obvious that the applicant is unwell. 3 The application for an extension was not filed until 9 January 2015. In the evidence before me there is a photocopy of a medical certificate of a Dr Thomas Springer dated 9 December 2014. Dr Springer states: Ms Nakita Xardia that [sic] she was unable to appeal her COMCARE case due to stress related physical injury but would now like to. This Certificate was completed on 9/12/2014. 4 The applicant's affidavit in support of her application for an extension sheds no further light on her circumstances or the reasons for the delay in seeking to appeal the Tribunal's decision. It describes her occupation as "disgraced former employee". 5 The applicant has not provided any proposed grounds of appeal so I do not know what question of law she seeks to raise in her proposed appeal. 6 The Court has a broad discretion as to whether or not to grant an extension of time within which to file a notice of appeal. The considerations that the Court takes into account include the following: (a) the length of the delay; (b) the applicant's explanation for the delay; (c) the prejudice, if any, that will be suffered by the respondent if leave to appeal out of time is granted; (d) the merits of the proposed appeal. 7 The following facts are drawn from the Tribunal's reasons for decision. 8 The applicant sought review of a decision of the respondent declining liability to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for "acute reaction to stress" resulting in paranoid schizophrenia while the applicant was employed by the Australian Taxation Office (ATO) between 1990 and 1994. 9 The applicant worked in the ATO in Sydney next to Mr Gordon Mills who was killed at his home in March 1994. In late April 1994 detectives showed the applicant a number of rings and asked the applicant if she could identify them as having been worn by Mr Mills. She apparently made a statement to police in which she identified the rings as belonging to Mr Mills. 10 In August 1994 the applicant claimed she was suffering from stress and resigned from the ATO voluntarily. A man was later convicted of the manslaughter of Mr Mills. There has never been any suggestion that the applicant had any knowledge of or connection with that crime. 11 The applicant's claim for compensation was made in February 2013 and was refused by the respondent on 30 April 2013. That decision was affirmed by the respondent on 25 September 2013. It is this decision that the applicant sought to have reviewed by the Tribunal. 12 The Tribunal noted in its reasons that from 1998 onwards the applicant was hospitalised for psychiatric treatment on many occasions and that in 2005 she was granted a Disability Support Pension for schizophrenia. 13 The applicant gave oral evidence before the Tribunal. The Tribunal noted in its reasons that in spite of requests and suggestions that she do so, the applicant was unable or unwilling to address the issues in her case. The Tribunal noted that her evidence, documentary and oral, provided no factual basis upon which findings of injury, causation, contribution or aggravation could be made in relation to her employment by the ATO. 14 The Tribunal also referred in its reasons to the evidence of Dr Jeffrey Bertucen, psychiatrist, who said he was unable to draw any direct connection between the applicant's history of chronic schizophrenia and any factors relating to employment by the ATO. According to the Tribunal, Dr Bertucen said that her schizophrenia was "an underlying constitutional condition which emerged in the mid 1990's". The Tribunal said that Dr Bertucen did not consider that any factors associated with the applicant's employment by the ATO had caused or aggravated her condition. The Tribunal accepted the opinions expressed in his report and his oral evidence. 15 I am not persuaded that the applicant should be given an extension of time. It is true that there is no suggestion that the respondent has suffered any prejudice as a result of the delay. Although the delay has been lengthy, I am prepared to assume in the applicant's favour that it is explained by the fact that she has been ill. However, there is nothing before me to suggest that the proposed appeal has any prospect of success. 16 The application for an extension of time is dismissed. The applicant must pay the respondent's costs of the application. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.