Perkins and Telstra Corporation Limited [2002] AATA 1317 (5 December 2002)

Last Updated: 23 December 2002

DECISION AND REASONS FOR DECISION [2002] AATA 1317

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/1129

GENERAL ADMINISTRATIVE DIVISION )

Re LEIGH PERKINS

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal Senior Member M D Allen

Date 5 December 2002

Place Sydney

ADMINISTRATIVE APPEALS TRIBUNAL ) No N2002/1129

)

GENERAL ADMINISTRATIVE DIVISION )

Re: LEIGH PERKINS

Applicant

And: TELSTRA CORPORATION

LIMITED

Respondent

DECISION

Tribunal Senior Member M D Allen

Date 5 December 2002

Place Sydney

Decision For the reasons given orally at the conclusion of the hearing in this matter, pursuant to sub-section 29(7) of the Administrative Appeals Tribunal Act 1975 the time for the lodging of an application by the Applicant for review of the decision made by the Respondent on 21 January 1999 is extended to 13 December 2002.

(Sgd) M.D. ALLEN

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

Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE - application to extend time - in Workers' Compensation jurisdiction major point to be considered is whether effluxtion of time has made a fair trial impossible for Respondent.

Administrative Appeals Tribunal Act 1975 - ss29(7)

Hunter Valley Developments v Cohen 3 FCR 344

Brisbane South Regional Health Authority v Taylor 186 CLR 541

Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367

REASONS FOR DECISION

Senior Member M D Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Signed:

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

Associate

Date of Hearing 5 December 2002

Date of Decision 5 December 2002

Counsel for the Applicant Mr R Hanrahan

Solicitor for Applicant Galland Elder Lulham Solicitors

Counsel for the Respondent Mr B Kelly

Solicitor for Respondent Sparke Helmore

DRAFT JUDGMENT [12.53pm]

ADMINISTRATIVE APPEALS TRIBUNAL

Matter No N2001/1129

By MR M.D. ALLEN, Senior Member

PERKINS and TELSTRA CORPORATION

SYDNEY, 5 DECEMBER 2002

MR ALLEN: In this matter the applicant seeks to extend the time in which to make an application to the Tribunal to review a reviewable decision made 21 January 1999 which decision affirmed a prior determination that the respondent was not liable to pay compensation to the applicant pursuant to the Safety, Rehabilitation and Compensation Act 1988 for the injury described as left sterno clavicular joint strain.

The matter originally came before the Tribunal pursuant to an application for review made 23 March 1999. That matter was given the distinguishing number N1999/435 in the Tribunal's filing system and it proceeded through the various conferences arranged by the Tribunal except to say that the matter was attended by inordinate delay on the part of the solicitors engaged by the applicant. I note that the applicant did change her solicitors in or about March 2000 because she was unsatisfied apparently with the progress being made, but even then it would appear that the matter did not proceed with any degree of expedition.

The history of the matter is set out in a letter by the respondent's solicitors to the applicant's solicitors dated 6 March 2001 and some of the history may be gained by the chronology which became exhibit R2 in these proceedings. Suffice to say that following some five preliminary conferences and a directions hearing on 23 March 2001 the applicant's solicitors withdrew the application to review which had been matter N1999/435.

On 16 November 2001 there was lodged with the Tribunal an application to review a reviewable decision by the applicant made 21 September 2001 which reviewable decision affirmed a decision rejecting a claim for permanent impairment in regard to a condition described as loss of mobility in neck and shoulders and pain, loss of strength in arms. It became apparent in the course of today's proceedings that really what the matters were about were a claim by the applicant that she had a neck injury which was attributable to her employment and also a shoulder injury which was attributable to her employment, although it may be that these conditions have interplayed one with the other so that there is in effect a combined impairment.

The matter relating to the claim for permanent impairment is before the Tribunal in its normal course and it raises a question whether in the course of those proceedings the Tribunal can determine the question of liability but that, as I see it, is a question for another day. It was as a result of those proceedings that an application for review was lodged with the Tribunal for an extension of time, the said application being lodged on 7 August 2002 and in relation to a condition described as soft tissue injury cervical spine, being part of the condition that the applicant withdrew.

Following a directions hearing I directed that the application be amended so as to read as being an application to extend time in respect of a reviewable decision dated 21 January 1999 which referred to the shoulder condition. I might mention that between the neck and the shoulder conditions there has been some confusion. However, the situation now is there is before me an application to extend time to review the decision in relation to left sterno clavicular joint strain, which reviewable decision was made on 21 January 1999 and which, as I said, was withdrawn from the Tribunal on 23 March 2001 originally.

The bases upon which the Tribunal should consider any application to extend time was set out in the well known passages in Hunter Valley Developments Pty Ltd v Cohen 3 FCR 344 at pp348 and 349. The first of those says:

Special circumstances need not be shown. The Court -

(and therefore this Tribunal) -

will not grant the application unless positively satisfied that it is proper so to do. It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time.

I will return to that particular passage. The second principle is whether a person has by non Curial means continued to make the decision-maker aware that he contests the finality of the decision. It seems to me here that there has always been on foot the permanent impairment claim. Principle 3 refers to prejudice in defending the proceedings. Now, so far as prejudice is concerned, it seems to me that in the Workers Compensation jurisdiction that is of material importance and what should be applied are the principles as set forth in Brisbane South Regional Health Authority v Taylor 186 CLR 541. Wilcox J, however, went on to say:

The mere absence of prejudice is not enough to justify the grant of an extension. In this context public considerations often intrude.

That is a principle which I do not consider applies here. Principle 5 refers to the merits of the application and that is a matter which I have not gone into in these proceedings as it would seem that there is certainly enough before the Tribunal to say that this matter could not be said to have no merits. The final principle is one of considerations of fairness between applicants and again I do not think that that principle is relevant here.

As to the first principle referred to by Wilcox J, namely an explanation for the delay, that principle was somewhat restricted by the decision of the Full Court of the Federal Court of Comcare v Ahern 119 ALR 85. There the Court ruled that there is no rule an acceptable explanation for the delay must be given as an essential pre-condition to the exercise of the discretion to extend time. It will be noted, however, the used words were "an essential pre-condition". The Court did not say that it is immaterial.

A further point, however, is that the Court specifically stated that the sins of the solicitor are not to be visited upon the client. That also was a case where the Tribunal found that there had been inexcusable delay on the solicitor's part, but as the Court pointed out, that should not be used as a reason to defeat an application for extension of time. So far as the Court's approach to such questions I would also refer to the recent decision of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (2002) FCAFC 367.

That was a case relating to the Tribunal's power to reinstate an application pursuant to subsection (10) of section 42A where a matter had been dismissed. In their joint judgment Wilcox and Downes JJ said:

We do not think it necessary in order to enliven the Tribunal's power under subsection 42A(10) that the Tribunal or a member or employer of the Tribunal should have been at fault in relation to the dismissal. The fault may have lain elsewhere provided it induced the error. For example, because of a mistake as to his or her instructions a solicitor or other representative of a party might have wrongly consented to a dismissal order or filed a notice of discontinuance. No fault would attach to the Tribunal but if the solicitor's mistake induced the dismissal of the action it could properly be said the application had been dismissed in error.

Now, an application for an extension of time is somewhat different but I quote the passage to show the Federal Court's attitude to matters which are occasioned by default on the part of a solicitor. In other words, if a solicitor has made an error and has withdrawn a matter from the purview of the Tribunal, that should not be used as a matter or reason to defeat an extension of time. The real test is, as I appertain it, as said in Brisbane South Regional Health Authority v Taylor, if I might quote first of all from the joint judgment of Toohey and Gummow JJ:

The real question is whether the delay has made the chances of a fair trial unlikely. If it has not, there is no reason why the discretion should not be exercised in favour of the respondent.

Similarly, McHugh J with whom Dawson J agreed, said firstly:

An applicant for an extension of time has a positive burden of demonstrating that the justice of the case requires that extension.

And:

Once the potential liability of the defendant had ended, its capacity to obtain a fair trial if an extension of time were granted was relevant and important.

I deduce from those passages that the majority in that case really put the substantial question as being: is it possible, given the effluxion of time in a particular case, to obtain a fair trial? In this matter the respondent, although no doubt having regarded itself as no longer having to have regard to the liability aspect or any shoulder or indeed any neck condition, still has before it the medical evidence and was indeed perforce having to consider that medical evidence in the light of a claim for permanent impairment in respect of the said conditions.

In those circumstances it seems to me that I could not find that the respondent would not receive a fair trial in this matter if it were go to hearing. Although it was urged upon me that the fault of the solicitor should have been visited on the client, it seems clear that following Ahern's case that is not the case if a fair trial will not be prejudiced. I therefore intend to grant an extension of time in matter N2002/1129. An extension of time will be until 13 December 2002. I say that because I notice although there is an application to extend time, the actual application has not been lodged, so you have got a week to get that in.