Hawke v Chief Executive Officer, WorkCover NSW [2008] NSWADT 4

CITATION: Hawke v Chief Executive Officer, WorkCover NSW [2008] NSWADT 4

DIVISION: General Division

APPLICANT PARTIES: Dominic Peter Hawke RESPONDENT Chief Executive Officer, WorkCover NSW

FILE NUMBER: 073161

HEARING DATES: 12/07/2007, 02/08/2007

SUBMISSIONS CLOSED: 12 October 2007

DATE OF DECISION: 7 January 2008

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Occupational Health and Safety Act - OHS Certificate Assessor - cancellation of accreditation - OHS Certificate Assessor - cancellation of accreditation

MATTER FOR DECISION: Preliminary matter

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001

Director General, Department of Infrastructure, Planning and Natural Resources v Stapleton [2003] NSWADT 212 CASES CITED: Ministry of Transport v Kharbanda (GD) [2006] NSWADTAP 61 Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42

In person REPRESENTATION: C Fesel, solicitor

ORDERS: Mr Hawke's application for leave to file out of time refused The application is dismissed

1 Mr Hawke has worked as a WorkCover accredited trainer for many years. He previously held an accreditation as a WorkCover Assessor however that accreditation was cancelled in September 2004 ("the accreditation cancellation"). He subsequently applied for accreditation as an Assessor for 'Formwork and Explosive Power Tools'. That application was refused in May 2005 ("the application refusal"). He did not seek a review of those determinations at the time. He now seeks to have them reviewed and brought an application for leave to file out of time. 2 In January 2007 WorkCover determined to cancel Mr Hawke's accreditation as a WorkCover Accredited Trainer, for the training courses OHS General Induction for Construction Work in NSW and OHS Consultation. Mr Hawke applied to the Tribunal for external review of that determination. 3 WorkCover raised the preliminary issue of whether the Tribunal had jurisdiction to hear and determine that application. It argued that that the Tribunal does not have jurisdiction to review this decision under clause 351 of the Occupational Health and Safety Regulation 2001 ("the OHS Regulation") and as such the decision is not a reviewable decision within the meaning of section 8 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). 4 The matter was listed for a hearing on 12 July 2007 to decide that issue. I agreed with the WorkCover arguments and dismissed that application for want of jurisdiction. 5 As indicated above, Mr Hawke has applied to the Tribunal for external review of the accreditation cancellation and the application refusal. He has applied for an extension of the time for him to make this application. This is to be determined as a preliminary issue. Applicable legislation 6 Section 8 of the ADT Act provides 8. What is a reviewable decision? A "reviewable decision" is a decision of an administrator that the Tribunal has jurisdiction under an enactment to review. Note: Section 38 provides for the circumstances in which the Tribunal has jurisdiction to review a decision of an administrator. 7 Clause 351 of the OHS Regulation provides: 351. Decisions subject to review by the Administrative Decisions Tribunal: section 36 of the Act (1) A person aggrieved by a decision that belongs to one of the following classes of decisions made by WorkCover (being a decision made in respect of that person) may apply to the Administrative Decisions Tribunal for a review of the decision: (a) decisions under clause 31(4) to refuse to accredit the person as a trainer, (b) decisions under Part 5.2: (i) to refuse to register a plant design, or (ii) to refuse to register an item of plant, or (iii) to impose a condition on registration of an item of plant, or (iv) to cancel the registration of an item of plant, or (v) to discontinue the registration of an item of plant, (c) decisions under Chapter 9: (i) to refuse to issue a certificate of competency, or (ii) to suspend or cancel a certificate of competency, or (iii) to refuse to replace a certificate of competency, or (iv) to refuse to accredit a person as an assessor, or (v) to suspend or cancel a person's accreditation as an assessor, or (vi) to confirm the decision of an assessor on an application for a review of the decision, (d) decisions under Chapter 10: (i) to refuse to issue a licence, or (ii) to impose a condition on a licence, or (iii) to suspend or cancel a licence, (e) decisions under Chapter 11: (i) to refuse to issue a permit, or (ii) to impose a condition on a permit, or (iii) to suspend or cancel a permit, (f) decisions under Part 12.4: (i) to dismiss an application for an exemption from a provision of this Regulation, or (ii) to impose a condition on an exemption from a provision of this Regulation, or (iii) to withdraw an exemption from a provision of this Regulation. (2) WorkCover is taken, for the purposes of an application for review by the Administrative Decisions Tribunal: (a) to have refused to grant an approval, permission or exemption, or (b) to have refused to register a plant design or an item of plant or amusement device, or (c) to have refused to issue a certificate of competency or licence, or (d) to have refused to amend or cancel a condition of an approval, registration, permission or exemption, or (e) to have refused to rescind a cancellation or discontinuance of registration, or (f) to have refused to accredit an assessor under Chapter 9, or (g) to have confirmed a decision of an assessor under Chapter 9, if it does not determine an application in relation to the relevant matter within 3 months after the date of lodgment of the application. (3) WorkCover is taken, for the purposes of an application for review by the Administrative Decisions Tribunal, to have refused an application to issue a permit under Chapter 11 if it does not determine the application within 7 days (or 21 days in the case of an application for a permit to do demolition work involving the use of explosives) after the date of lodgment of the application. Note: The Minister administering the Administrative Decisions Tribunal Act 1997 has concurred in the making of the above clause pursuant to section 36 (2) of the Occupational Health and Safety Act 2000. 8 Clause 15(3) of Schedule 1 to the Administrative Decisions Tribunal Rules (Transitional) Regulation 1998, ("the ADT Regulation") states that: 15. Applications for reviews of reviewable decisions ... (3) For the purposes of section 55(1)(d) of the Act, an application for the review of a reviewable decision must be made to the Tribunal within 28 days from the day on which an internal review is taken to have been finalised under section 53(9) of the Act. 9 Section 55 of the ADT Act provides: 55. When can an application for a review be made? (1) A person may apply to the Tribunal for a review of a reviewable decision only if: (a) the application is made by an interested person, and (b) an internal review is taken to have been finalised under section 53 (9), and (c) the application is made in the manner prescribed by the rules of the Tribunal, and (d) the application is made within such period as may be prescribed by the rules of the Tribunal following the date on which the internal review is taken to have been finalised under section 53 (9). Note: Section 4 defines "interested person" to mean a person who is entitled under an enactment to make an application to the Tribunal for an original decision or a review of a reviewable decision (as the case may be). (2) However, subsection (1)(b) or (d) does not prevent a person from making an application in respect of a reviewable decision that has not been the subject of an internal review under section 53 if the Tribunal is satisfied that: (a) the person was not at any time entitled to apply for an internal review of the decision, or (b) the person made a late application for an internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned, or (c) it is necessary for the Tribunal to deal with the application in order to protect the person's interests and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned. (3) In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (2), the Tribunal is to have regard to: (a) the time when the applicant became aware of the making of the decision, and (b) in a case to which subsection (2) (b) applies-the period prescribed by or under section 53 for the lodging of an application for an internal review, and (c) such other matters as it considers relevant. 10 Section 57 of the ADT Act provides: 57 Late applications to Tribunal (1) Despite section 55(1)(d), the Tribunal may, on application in writing by an interested person seeking to make a late application to the Tribunal, extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application. (2) The time for making an application for a review of a reviewable decision may be extended under subsection (1) although that time has expired. (3) In this section, "late application" means an application not made within the time prescribed by the rules of the Tribunal (or prescribed by or under the enactment under which the application is made). Mr Hawke's case 11 Mr Hawke wants to have the accreditation cancellation and the application refusal reviewed for financial reasons. He says that his income is from conducting WorkCover accredited training courses and that both he and his family will suffer if his accreditation is not re-instated. 12 He accepts that he has not brought his applications for review within the time prescribed by the ADT Regulation. His evidence is that he failed to seek review of the determinations because of his ill health. He provided medical certificates in support of this assertion. In particular he relies on a certificate dated 17 July 2007 from Dr K Helbig-Brown and a certificate dated 5 September 2007 from Dr Hamish Bagga. 13 Dr Helbig-Brown is Mr Hawke's GP and has seen him from 2005 to 2007. Dr Helbig-Brown identified a number of health problems and concluded: "All these factors are certainly medical reasons for distraction from doing unusual administrative work." 14 Dr Bagga is a Consultant Rheumatologist & Musculoskeletal Physician who saw Mr Hawke in January 2005 and March 2005. He states that Mr Hawke suffered significant incapacity in that period and that he struggled to perform his usual occupational duties. 15 Mr Hawke conceded that he has been able to continue to work as a trainer for the period since the cancellation of his accreditation but states that he was unable to provide the attention that would have been required to seek review of the determinations. He also asserts that he continued to negotiate with WorkCover for a significant period after the application refusal and that this accounts for much of the period since that time. WorkCover's case 16 WorkCover concedes that the cancellation of Mr Hawke's accreditation as a WorkCover Assessor is a reviewable decision but argues that the Tribunal does not have jurisdiction to review the refusal of Mr Hawke's application for accreditation as a Form Workers and Power Tool Operator Assessor. It submits that this is because the decision to refuse his application does not come within the ambit of section 351 of the OHS Regulations and therefore it is not a reviewable decision under section 8 of the ADT Act. 17 WorkCover submits that the certificate provided by Dr Bagga does not provide evidence to indicate that Mr Hawke was unable to prepare and lodge an application to the Tribunal within 28 days or immediately thereafter in relation to either the accreditation cancellation or the application refusal. Dr Bagga only confirmed that Mr Hawke 'struggled to perform his usual occupational duties' between late January 2005 and March 2005. Dr Helbig-Brown does not put the situation any higher than Dr Bagga. 18 WorkCover submits that Mr Hawke continued to work despite experiencing a variety of health problems. Mr Hawke's ability to work proves that he was able to lodge an application sooner rather than later but failed to do so. WorkCover points to the fact that Mr Hawke wrote to WorkCover on 12 May 2005. It argues that his ability to correspond with WorkCover indicates that he would have been able to lodge an application to the Tribunal on or about May 2005 or immediately thereafter. 19 WorkCover further submits that Mr Hawke was unable to offer any evidence as to why he was not able to seek the assistance of a solicitor or agent to prepare and file an application with the Tribunal in 2004, 2005 or 2006. 20 Mr Fesel summarised WorkCover's position in the following terms: the application for an extension of time must fail because of the significant passage of time; Mr Hawke failed to demonstrate any special features that make it appropriate for the Tribunal to grant him an extension of time; the application for a review of the respondent's decisions raised no substantial or important considerations to be tested, whether in principle or in law and has no wider implications for the jurisdiction of the Tribunal; the application for a review of the respondent's decisions does not provide any utility to Mr Hawke given that more than 2 & 1/2 years had elapsed since the decisions in question; the Tribunal does not have jurisdiction to review the decision to refuse his application for Assessor Form Workers and Power Tool Operator; the respondent would suffer prejudice if the extension of time is granted as its evidence has gone stale; Mr Hawke failed to provide any cogent evidence to the Tribunal despite being given several opportunities (on 12 July 2007, by 2 August 2007 and by 28 September 2007) to prove that the illness prevented him from lodging his application before 25 May 2007; and 21 Accordingly, Mr Fesel argues that in all the circumstances it is not appropriate that the Tribunal grant the extension of time. Findings 22 The Tribunal has, in several matters, considered the issue of the approach to be taken in considering whether to grant an extension of time to lodge an application. See for example Ministry of Transport v Kharbanda (GD) [2006] NSWADTAP 61; Director General, Department of Infrastructure, Planning and Natural Resources v Stapleton [2003] NSWADT 212. 23 In Stapleton the Tribunal's President referred to Commonwealth cases which have considered a similar provision to that in section 57: see for example Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42. The President identified the following factors as relevant to the exercise of the discretion to grant leave for an application to proceed out of time: Explanation for Failing to File in Time Prejudice Timeliness and Delay in the Antecedent Administrative Process Apparent Merits of the Case Public Interest 24 In my view, those factors are also applicable in the circumstances of this matter. 25 Mr Hawke provided certificates in an effort to address the first of these factors but in my view he has failed to do so sufficiently. I accept that for much of the period in issue Mr Hawke suffered health problems and that at times these were debilitating. However, he continued to work despite experiencing those health problems. A period of some two and a half years passed before his application. In my view, the problems would not have prevented him from lodging an application far earlier than he did. 26 I also accept that Mr Hawke continued to correspond with WorkCover in regard to its determinations. The fact that WorkCover continued to communicate with him does not alter the fact that it had made the determinations and does not affect any right he might have to apply to the Tribunal for review. 27 In order for Mr Hawke to succeed on his application for an extension of time pursuant to section 57 of the ADT Act I must be satisfied that he has provided a reasonable explanation for the delay in making the application. I am not satisfied that he has done so. In my view, he failed to bring his applications primarily because he was able to continue to work as a trainer and therefore had no financial need for the other accreditations. It was not until his ability to work as a trainer was removed that he then focussed on the other accreditations. 28 WorkCover has addressed the remaining factors identified by the President in Stapleton. I do not need to consider them because of my view that Mr Hawke has not provided a reasonable explanation for the delay in making the application. Nevertheless, I note that I agree with the argument presented by WorkCover. In my view, WorkCover would suffer significant prejudice if the application were granted. It is also my view that WorkCover's case in regard to the application refusal appears to be strong and there is no obvious public interest aspect. This is particularly so if Mr Hawke is able to reapply for accreditation as a WorkCover Assessor. 29 In my view, the application for extension of time to lodge the applications for review should be refused. Order Mr Hawke's application for leave to file out of time refused. The application is dismissed.