Curran and Australian Postal Corporation [2000] AATA 93 (14 February 2000)

Last Updated: 15 February 2000

DECISION AND REASONS FOR DECISION [2999] AATA 93

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1757

GENERAL ADMINISTRATIVE DIVISION )

Re CRAIG CURRAN

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Senior Member M D Allen Senior Member M J Sassella

Date 14 February 2000

Place Sydney

Decision The application pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 to extend the time in which to make an application for review of a decision dated 12 November 1996 is refused.

(Sgd) M D ALLEN

..............................................

Presiding Member

CATCHWORDS

PRACTICE AND PROCEDURE - Application for extension of time. Reviewable decision made two years previously. Deliberate decision not to seek review at that time. No new material adduced by Applicant and Respondent significantly disadvantaged by inability to obtain contemporaneous medical reports. Application refused.

Administrative Appeals Tribunal Act 1975 - ssub29(7)

Safety, Rehabilitation and Compensation Act 1988 - s62, ssub65(4)

Hunter Valley Developments Pty Ltd v Cohen 3 FCR 344

Brisbane South Regional Health Authority and Taylor 186 CLR 541

Lucic v Nolan and Others 45 ALR 411

REASONS FOR DECISION

14 February 2000 Senior Member M D Allen Senior Member M J Sassella

1. Pursuant to an application lodged with the Tribunal on 18 November 1999, the Applicant sought an extension of time in which to lodge an Application for Review of a reconsideration decision under s62 of the Safety, Rehabilitation and Compensation Act 1988 made by the Respondent on 12 November 1996.

2. Subsection 65(4) of the Safety, Rehabilitation and Compensation Act 1988 provides that an application for review of a reviewable decision shall be made within 60 days of the decision being communicated to the Applicant, whereas ssub29(7) of the Administrative Appeals Tribunal Act 1975 reads inter alia that the Tribunal may, upon application, extend the time for the making of an application for review.

3. No qualifications are imposed by ssub29(7) or any other provisions of either the Administrative Appeals Tribunal Act 1975 or the Safety, Rehabilitation and Compensation Act 1988 fettering the Tribunal's discretion to extend the time in which to make application for the review of a decision under the Safety, Rehabilitation and Compensation Act 1988. (Cf para 176(4)(b) of the Veterans' Entitlements Act 1986). The Tribunal has, however, consistently applied the non exclusive principles affecting the exercise of a discretion in which to extend time enunciated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen 3 FCR 344 at 348, 349, namely:

"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' ... is not to be ignored ... Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained ... 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 is 'fair and equitable in the circumstances' to extend time ...

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' ...) and a case where the decision-maker was allowed to believe that the matter was finally concluded. ...

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 ...

4. However, the mere absence of prejudice is not enough to justify the grant of an extension ... In this context, public considerations often intrude ... A delay which may result, if the application is successful, in the unsettling of other people ... or of established practices ... 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 ...

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 ..."

4. Those principles have received some modification. In Comcare v A'Hearn 119 ALR 85 the Full Court of the Federal Court upheld the decision of Hill J at first instance and stated that the delays of a solicitor are not to be visited upon the client and that there is no rule that an explanation for delay must be given as an essential pre-condition to the exercise of the discretion, although it is expected that an explanation will be given as a relevant matter to be considered.

5. The questions and principles to be applied on an extension of time have been referred to in later decisions, see for example Zizza v Federal Commissioner of Taxation 55 ALD 451 at 455, Zizza v Commissioner of Taxation [1999] FCA 848, Brown v Commissioner of Taxation [1999] FCA 563 and Commissioner of Taxation v Brown [1999] FCA 1198.

6. In Brisbane South Regional Health Authority and Taylor 186 CLR 541 the majority pointed out that the discretion was one to grant an extension of time, not to refuse, and that the Applicant for the extension of time bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.

7. The Applicant gave evidence in support of his application. At the outset it can be said that by his evidence and the correspondence tendered the Applicant has demonstrated that, at the time the decision under review was made and later, there was maladministration within that part of the Respondent's organisation with direct control over the Applicant. Part of this arose from what can be claimed as "industrial matters" and the Applicant's claimed victimisation and harassment because of his support for a reform candidate in Union elections. There was also evidence of conflicting instructions being given to the Applicant by various managers.

8. A considerable part of the evidence in this matter related to the Applicant's claim for sick leave for the period for which he also claimed compensation, namely 17 September 1996 to 16 October 1996. We accept the Applicant's evidence that a Michael Lennon told him, after his compensation claim had been rejected, that if he forgot about compensation he would see that he got paid sick leave.

9. The Applicant did not, however, go so far as to claim that Mr Lennon in any way influenced him directly into not continuing with his claim for compensation.

10. Contrary to Mr Lennon's undertaking, the Applicant's claim for sick leave was refused. In a series of administrative blunders, the Applicant was on 30 April 1997 credited with the sick leave previously denied, then on 1 August 1997 the grant of sick leave was revoked and the Respondent commenced to deduct the overpayment from the Applicant's wages by way of instalments.

11. The events surrounding the Applicant's sick leave evidence maladministration on the part of the Respondent but the crediting or non-crediting of such leave is an industrial matter and the decision to extend time in relation to a workers' compensation claim must be made in the light of the principles stated above.

12. The Applicant conceded that when he received the reconsideration decision dated 12 November 1996 and the reasons therefor, he full understood that he could seek review by the Administrative Appeals Tribunal.

13. Cross-examined as to why, with the knowledge he had, he did not seek review by the Administrative Appeals Tribunal, the Applicant stated that he was too frightened of victimisation to seek review.

14. Although there is evidence of disputes regarding Union matters affecting the Applicant, there is no objective evidence to support his claim that, if he had continued with his application for compensation, he would be victimised. No doubt, as is often the case, intermediate managers, for various reasons, would not have looked favourably upon the Applicant for continuing with his claim but this is a different matter to victimisation and harassment.

15. At the time the Applicant sought review of the original determination refusing him compensation, he lodged a "certificate" from psychiatrist Dr Collins whom he had consulted on referral from his general practitioner, Dr Vellani. Dr Collins' certificate dated 18 September 1996 is brief and does not descend into particularity. It reads:

"In my opinion, Mr Curran Craig (sic) is suffering from an anxiety depression of moderate severity which appears to be work related, and which will render him unfit for work for 4 weeks."

16. A certificate by Dr Vellani of the same day refers to constant pressure at work. Interestingly, however, this certificate refers to depression and stress some six years prior and previous panic attacks. A report by Dr Vellani dated 23 October 1996 refers to consultations in June 1996 and September 1996 for anxiety and stress caused by work and that the Applicant had been referred to a psychiatrist.

17. No new material was brought before the Tribunal, that is to say the Tribunal had before it the same material as the delegate who made the reviewable decision but nothing to further advance the Applicant's case.

18. Fitzgerald J (as he then was) in Lucic v Nolan and Others 45 ALR 411 pointed out that prima facie proceedings begun out of time will not be entertained. In Brisbane South Regional Health Authority supra at pp522, 523 McHugh J discussed the rationale for limitation periods, namely:

"The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even 'cruel', to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. As the New South Wales Law Reform Commission has pointed out:

'The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served.'

... The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.

In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated."

19. In administrative law the third and fourth rationales, referred to in the passage above from the judgment of McHugh J, are important, namely that a government department or body should, after the expiry of a limited period of time, be able to manage its affairs on the basis that a particular decision is final and operative. To resurrect a matter which a department had been entitled to regard as closed, can adversely affect budgets, the allocation and expenditure of funds and, remembering that the present Respondent is also a commercial organisation, the most productive use of its resources.

20. In this matter although the Applicant has given an explanation for his delay, it is hardly a convincing one. As he conceded, since late 1997 he has been a member of a non-registered industrial organisation and we infer that he could have sought its advice and support from that time onward.

21. Accepting, as we do the Applicant's evidence as to the offer by Mr Lennon to credit him with sick leave, the rejection of his claim for that sick leave was conveyed to him by letter dated 4 December 1996. The Applicant concedes that, at that time, he knew of his rights to seek review by the Administrative Appeals Tribunal of the decision to reject his compensation claim and it should have been apparent to him at that time that if his sick leave claim was also rejected, then the only way in which he could obtain payment for his period of absence was to seek review of his compensation claim.

22. At no time since the reviewable decision has the Applicant taken any steps to make the Respondent aware that he did not accept the finality of the decision of 12 November 1996 affirming the rejection of his claim for compensation.

23. No doubt, if the matter were to proceed in this Tribunal, the Applicant would seek additional medical reports. The "certificate" from Dr Collins is, in our opinion, insufficient to support any claim by the Applicant. If, however, the matter does proceed, the Respondent is particularly disadvantaged as it will not have the opportunity to obtain contemporaneous medical reports. This is particularly relevant where, as here, the claim is for stress and anxiety over a short closed period.

24. In our opinion, the inability of the Respondent to obtain contemporaneous medical reports renders any proposed action one in which the Respondent would suffer significant prejudice.

25. As pointed out by McHugh J in Brisbane South Regional Health Authority supra, time limits are imposed by the legislature with the public welfare in mind. Here the Respondent was entitled to regard the Applicant's claim as closed. The Applicant has, with knowledge of his rights, delayed seeking review and this delay has occasioned significant prejudice to the Respondent. There was no new material placed before us to counter that prejudice or show that the justice of the case required time to be extended. The application to extend time will therefore be refused.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of:

Senior Member M D Allen

Senior Member M J Sassella

Signed: Ivanka Mamic .....................................................................................

Associate

Date/s of Hearing 9 February 2000

Date of Decision 14 February 2000

Counsel for the Applicant N/A

Solicitor for Applicant Mr V Dominello,

Etheringtons Solicitors

Counsel for the Respondent Mr B Skinner

Solicitor for the Respondent Mr K Foster,

Graham Jones Lawyers