Re Ljubo Maric v Comcare [1993] FCA 31; (1993) 40 FCR 244 (12 February 1993)

FEDERAL COURT OF AUSTRALIA

Re: LJUBO MARIC
And: COMCARE
No. S G51 of 1992
FED No. 107
Number of pages - 12
Administrative Law
[1993] FCA 31; (1993) 40 FCR 244

COURT

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
O'Loughlin J.(1)

CATCHWORDS

Administrative Law - application to Tribunal for extension of time within which to lodge application to review - application refused - appeal - questions of delay and prejudice - delay seemingly caused by negligence of legal advisers.

HEARING

ADELAIDE, 20 November 1992
12:2:1993

Counsel for the Applicant : Mr. R.C. White

Solicitor for the Applicant : Carabelos and Co

Counsel for the Respondent : Mr. R.A. Cameron

Solicitors for the Respondent : Australian Government Solicitor

ORDER

The Court orders that:
1. This application be dismissed.

2. The applicant to pay the respondent's costs to be taxed if not
agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

O'LOUGHLIN J. The applicant, Ljubo Maric, was formerly employed by the Australian National Railways ("ANR") as a welder. In the course of his employment, he sustained work-related injuries in March 1987 and August 1988. He was duly compensated for a time but by letter dated 30 May 1989, the respondent Comcare, informed Mr. Maric that ANR was no longer liable to make payments of compensation.

2. Upon receipt of this letter, Mr. Maric consulted his solicitor, a Mr. Grivec, in early June 1989. However, it was not until 20 April 1990, more than ten months later, that Mr. Grivec wrote Comcare requesting a reconsideration of its determination of 30 May 1989. Mr. Grivec has sworn an affidavit in these proceedings on behalf of the applicant. He has acknowledged that Mr. Maric instructed him "to appeal against the decision and to ask for a review...". He then went on to say that "because I was obtaining further medical reports in 1989 it was not until the 20th April 1990 that I wrote Comcare asking for a review of the decision and applying for the review time to be extended...".

3. These medical reports were dated 5 October 1989 and 21 November 1989. No other explanation was proffered by Mr. Grivec (or by the applicant) for the failure to apply for review within the period of 30 days allowed for by the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) and no explanation was proffered for the delay of five months following the receipt of the last of the medical reports.

4. Upon receiving Mr. Grivec's letter of 20 April 1990, Comcare wrote him on 29 May 1990 asking that he supply, within 21 days, the reasons for the late application. There being no reply, Comcare wrote Mr. Grivec on 26 September 1990 in these terms:

"To date, no response has been received to our letter of 29
May 1990 requesting reasons for why Mr Maric did not lodge
his request for reconsideration within the 30 day limit
specified by the Act. On this basis, and in view of Dr
Thomas' opinion apparently being available from mid October
1989, I am unable to allow Mr Maric an extension of time
within which to lodge that request for reconsideration. I
am also not satisfied that Dr Thomas's advice raises
sufficient doubt about the correctness of the determination
of 30 May 1989. I have therefore rejected Mr Maric's
request for reconsideration.
Please advise Mr Maric of my decision. If he is
dissatisfied with this decision, he may within 60 days of
receiving this notification, lodge an application for review
of the decision with the Administrative Appeals Tribunal
(AAT), ..."

5. Section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") generally governs the time limit within which to make an application for review by that Tribunal. The usual period of 28 days, however, has been changed to 60 days by s65 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth).

6. Another eighteen months of inactivity followed. In the meantime in April 1991, Mr. Grivec retired, selling his practise to Mr. Maric's current solicitor. It was not until April 1992, however, that an application for review seeking, in addition, an extension of time for bringing the application, was filed in the Administrative Appeals Tribunal. This delay remained unexplained.

7. On 21 July 1992, the Tribunal dismissed the applicant's application for an extension of time. This is an appeal from that decision.

8. The grounds of appeal were numerous and detailed. They can nevertheless be fairly summarised and reduced to two main issues. First, it was argued that the Tribunal erred in law by holding that the application was doomed because of the failure on the part of the applicant to offer an acceptable explanation for the delay. Second, it was said that the Tribunal dealt with the question of prejudice or possible prejudice to the respondent in an impermissible way.

9. The Tribunal was empowered to consider the application for an extension of time. Subsections (7) and (8) of s29 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") provide:

"(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).
(8) The time for making an application to the Tribunal for
a review of a decision may be extended under sub-section (7)
although that time has expired."

10. But, as is the case with s11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), ("the Judicial Review Act"), the section does not set out any criteria by reference to which the Tribunal's discretion to extend time for an application for review is to be exercised. Thus, as Northrop J. pointed out in Duff v. Freijah [1982] FCA 159; (1982) 62 FLR 280 at 285 (a case dealing with an application for an extension of time under the Judicial Review Act), the discretion is unfettered but must be exercised judicially having regard to the relevant facts. Those remarks apply with equal force to applications for extensions of time that are made to the Tribunal under the AAT Act. Indeed the many decisions of the Court dealing with applications for extensions of time under the Judicial Review Act may usefully be used with respect to similar applications to the Tribunal.

11. In Duff v. Freijah, the twin issues of delay and prejudice were at the forefront of his Honour's reasons. As to delay, he said that he was "not satisfied that the applicants have explained in any satisfactory manner the delay in lodging the applications" thereby indicating the importance that is attached to this subject. On the question of prejudice to the respondent, he agreed with the views of Fisher J. in Doyle v. Chief of General Staff [1982] FCA 124; (1982) 42 ALR 283 at 287 which are set out later in these reasons.

12. In Hunter Valley Developments Pty. Ltd. v. Cohen [1984] FCA 176; (1984) 3 FCR 344 Wilcox J. had before him an application for an extension of time for applying to the Court under the Judicial Review Act for review of a decision. At 348-350 his Honour set out what he considered to be the principles that may be distilled from the authorities "to guide, not in any exhaustive manner, the exercise of the court's discretion". (348)

13. Although the passage is lengthy it is desirable to set it out in full, first, because of the extent to which the Tribunal referred to and relied upon it and, secondly, because counsel for the applicant argued that, in a material respect, an error appeared in his Honour's reasoning. Emphasising that Wilcox J. was merely engaging upon an exercise of distilling non-exhaustive principles that might be useful in determining how best to exercise a discretionary power, his Honour said:

"1. Although the section does not, in terms, place any
onus of proof upon an applicant for extension an application
has to be made. Special circumstances need not be shown but
the court will not grant the application unless positively
satisfied that it is proper so to do. The 'prescribed
period' of twenty-eight days is not to be ignored (Ralkon
Agricultural Co. Pty Ltd v. Aboriginal Development Commission
[1982] FCA 153; (1982) 43 ALR 535 at 550). Indeed, it is the prima facie
rule that proceedings commenced outside that period will not
be entertained (Lucic v. Nolan (1982) 45 ALR 411 at 416).
It is a pre-condition to the exercise of discretion in his
favour that the applicant for extension show an 'acceptable
explanation of the delay' and that it is 'fair and equitable
in the circumstances' to extend time (Duff at 485; Chapman
v. Reilly unreported (Federal Court of Australia, Neaves J.,
9 December 1983) at 7).
2. Action taken by the applicant, other than by making an
application for review under the Act, is relevant to the
consideration of the question whether an acceptable
explanation for the delay has been furnished. A distinction
is to be made between the case of a person who, by non-curial
means, has continued to make the decision-maker aware
that he contests the finality of the decision (who has not
'rested on his rights': per Fisher J. in Doyle v. Chief of
Staff [1982] FCA 124; (1982) 42 ALR 283 at 287) and a case where the
decision-maker was allowed to believe that the matter was
finally concluded. Compare Doyle, Chapman, Ralkon and
Douglas v. Allen [1984] FCA 77; (1984) 1 FCR 287 with Lucic at 414-415
and Hickey v. Australian Telecommunications Commission (1983)
48 ALR 517 at 519. The reasons for this distinction are
not only the 'need for finality in disputes' (see Lucic at
410) but also the 'fading from memory' problem referred to
in Wedesweiller v. Cole [1983] FCA 94; (1983) 47 ALR 528.
3. Any prejudice to the respondent including any prejudice
in defending the proceedings occasioned by the delay is a
material factor militating against the grant of an
extension: see Doyle at 287, Duff at 484-485, Hickey at
525-527 and Wedesweiller at 533-534.
4. However, the mere absence of prejudice is not enough to
justify the grant of an extension: Douglas, Lucic at 416,
Hickey at 523. In this context, public considerations often
intrude (Lucic, Hickey). A delay which may result, if the
application is successful, in the unsettling of other people
(Ralkon at 550, Becerra at 12-13) or of established
practices (Douglas) is likely to prove fatal to the
application.
5. The merits of the substantial application are properly
to be taken into account in considering whether an extension
of time should be granted: Lucic at 417, Chapman at 6.
6. Considerations of fairness as between the applicants
and other persons otherwise in a like position are relevant
to the manner of exercise of the court's discretion:
Wedesweiller at 534-535.
In considering the authorities it is, I believe, important
to bear in mind the point made by Sheppard J. in
Wedesweiller at 531, relating to the diversity of decisions
to which review may be sought under the Act:
'... there will be some cases which may be
decided upon considerations which affect only
the immediate parties. It will be appropriate
to consider whether the delay which has taken
place has been satisfactorily explained, the
prejudice which may be caused to an applicant by
the refusal of an application, the prejudice
which may be suffered by the Government or a
particular department if the application is
granted and, generally, what the justice of the
case requires. In other cases wider
considerations will be involved.'
He went on to mention the reference to public interest made
by Fitzgerald J. in Lucic at 416.
It is in relation to the former category of cases, that is,
those 'which affect only the immediate parties' that the
approach adopted by Bray C.J. in Lovatt v. Le Gall (1975) 10
SASR 479 at 485 in respect of private litigation but
adopted in this context in both Doyle at 287 and Duff at
485, is apposite namely:
'If the defendant has suffered no prejudice, as
when he was well within the limitation period of
the plaintiff's claim, or where the excess
period of time is small, or where he cannot show
that he has lost anything by reason of the
delay, it may well be that the court will not
find it difficult to come to the conclusion that
it is fair and equitable in the circumstances to
grant extension.'
By contrast, in cases involving public administration,
especially day to day matters such as personnel management,
the public interest may well dictate refusal of an extension
even after only a short delay."

14. The passage from the judgment of Wilcox J. that Mr. White, counsel for the applicant, challenged was that dealing with delay:

"It is a precondition to the exercise of discretion in his
favour that the applicant for extension show an 'acceptable
explanation of the delay...'."

15. It was argued by Mr. White that, if the statement was to be read literally, it would be unreasonable as it would mean that a failure to offer a satisfactory explanation would always be fatal. It was further argued that a rigid interpretation would run counter to the general concept of unfettered discretion, and that the Tribunal, in referring to the Hunter Valley case and treating the failure to offer a satisfactory explanation as a sine qua non, had made a reviewable error. I am of the opinion that there is no substance in this argument. First, the argument does not do justice to the language of the judgment of Wilcox J.; his Honour did not merely refer to delay - he also added (to the passage quoted above) "... and it is 'fair and equitable in the circumstances' to extend time...". Thus the precondition for the exercise of the discretion is not limited to the question of delay but extends to aspects of fairness and equity. What is more, even though the reasons of the Tribunal were dominated by the issue of delay - and rightly so for it was a most important factor - the Tribunal referred to and quoted the passage from the judgment in the Hunter Valley case that covered not only delay but also fairness and equity.

16. The delays in this case were very bad. First, there was the delay from May or June 1989 until Mr. Grivec's informal letter of 20 April 1990. Then, notwithstanding Comcare's letters of 29 May and 26 September 1990, nothing further happened until April 1992. Understandably the question of delay was a dominating factor.

17. In fairness to Mr. Maric, it should be said that the Tribunal found that he was not personally to blame for the delays. It would seem that he might have good grounds for an action in negligence and for breach of contract against his legal advisers. One must be cautious, however, for the information that was put before the Tribunal was sparse and it can be dangerous to prejudge. On the other hand, and for the purposes of testing whether this Court should intervene, I am prepared to proceed upon the premise that Mr. Maric's failure to offer an "acceptable explanation" of the delay was caused by his legal advisers who were the parties who should have come forth with that explanation and they failed to do so. That is a material factor: Sophron v. The Nominal Defendant [1957] HCA 27; (1957) 96 CLR 469 at 474 and it is a factor which should be properly weighed in the balance by the Tribunal when considering the manner in which its discretionary powers might be exercised. The Tribunal recognised this responsibility. In paragraph 23 of its reasons, the Tribunal said:

"Although blamelessness of the applicant, when coupled with
fault of his solicitor, is a matter to be taken into
account, at the end of the day the test is whether (there is
an acceptable explanation of the delay)."

18. (Mr. White's complaint that this passage represents another example of an insular approach to the question of delay overlooks the fact that the Tribunal was entitled to discuss a discrete subject and was in fact doing so).

19. Having reviewed the reasons of the Tribunal, I am not convinced that it fell into error when considering the question of delay. The delays were gross. There would have been a justifiable expectation on the part of the respondent that the matter had been concluded when Mr. Grivec failed to supply the reasons for the delay back in mid 1990. Matters such as these, involving public moneys, should be attended to in a timely and efficient manner. In reality, the delays in this matter should be measured from June 1989 for that is when Mr. Maric should have applied to the respondent for a review of the decision that was contained in its letter of 30 May 1989. But apart from the one informal letter from Mr. Grivec in April 1990, the respondent heard nothing until April 1992. If it be said that it is not fair that the applicant should suffer from the transgressions of his legal advisers, then likewise it must also be said that it is not fair that the respondent should suffer from those same transgressions.

20. That then leads to the question of prejudice. In paragraph 20 of its reasons the Tribunal said:

"In this case, the Tribunal finds that there would be
prejudice to the respondent from the delay."

21. Mr. White complained that such a finding was not open to the Tribunal for the reason that no evidence had been led on behalf of the respondent that pointed to prejudice. In Williams v. F.S. Evans and Sons (1988) 52 SASR 237 Bollen J. addressed the absence of evidence in respect of prejudice in these terms at p 249:

"If no information about prejudice, no proof of the
existence of facts which could amount to prejudice, is
produced the Court may assume that there is none. To that
extent there is an evidentiary onus on the appellants to put
forward evidence about things which it says amount to prejudice."

22. Whilst I respectfully agree with his Honour's views I do not think that they necessarily apply in the circumstances of this case. In William's case the three respondents had successfully sought leave to renew stale writs. They were three only of numerous ratepayers in the Stirling District Council whose properties had been damaged as a result of a serious bushfire. All other writs had been served but these three had been overlooked. That was the context in which Bollen J. made reference to an evidentiary onus. In the present case however, the facts were very different for Comcare had every reason to believe in April 1992 that the issue had long been put to rest, and the learned senior member who constituted the Tribunal was entitled to draw on his experience and conclude that a public authority, such as Comcare, would suffer prejudice. In Pereira v. The Queen (1992) 66 ALJR 791 special leave was sought to appeal to the High Court against a decision of the New South Wales Court of Criminal Appeal which equated culpability arising from the importation of cocaine with that of heroin. Mason C.J. referred to the approach of the Court of Criminal Appeal as "based upon judicial experience, if not judicial notice" (p 791); he saw no foundation for regarding it as erroneous. In my view, the learned Senior member was also entitled to place relevant reliance on his experience. (See also Tapper v. The Queen, an unreported decision of the Full Court: judgment delivered 4 December 1992). The Tribunal is a specialist tribunal; it regularly deals with matters (such as these) involving public authorities and Government departments. The Tribunal and its members are entitled to make use of the knowledge that is thereby acquired and in appropriate circumstances that knowledge will entitle the Tribunal more readily to infer prejudice. This was one such case.

23. In any event, however, even if that conclusion be incorrect such that it might properly be said that the Tribunal was not justified in making a finding of prejudice, that would not justify the Court, in the circumstances of this case, interfering with the decision of the Tribunal. I am prepared to accept that there may be a case where an applicant might gain an extension of time even though he fails to advance an acceptable explanation of the delay. It is difficult to imagine such a case but it must be remembered that an unfettered discretion should not be tied to any formula; each case must be decided on its merits. With that caveat in mind, the delays in this matter were too great. It would be unreasonable to require the respondent to defend its decisions of 1989 after such a long interval of time.

24. The application is dismissed. The applicant is to pay the respondent's costs.