McManus and Comcare [2002] AATA 769 (5 September 2002)

Last Updated: 6 September 2002

DECISION AND REASONS FOR DECISION [2002] AATA 769

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2002/206

GENERAL ADMINISTRATIVE DIVISION )

Re NANCY JANE McMANUS

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member

Date 5 September 2002

Place Canberra

Decision Noting that the applicant has applied in writing for an extension of time for the making of an application to the tribunal, the tribunal extends the time for the making of that application to 30 May 2002.

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

Senior Member

CATCHWORDS

WORKERS' COMPENSATION - extension of time for lodging application to tribunal - whether satisfactory explanation for delay - whether respondent prejudiced if extension granted - whether substantive application has merit - application granted.

Safety, Rehabilitation and Compensation Act 1988 s 65(4)

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Casarotto v Australian Postal Corporation (1989) 86 ALR 399

Comcare v A'Hearn (1993) 45 FCR 441

Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315

Mulheron and Australian Telecommunications Corporation, Re (1991) 14 AAR 42

Petrou and Australian Postal Corporation, Re (1992) 25 ALD 407

Ross and Australian Postal Corporation, Re (2002) 67 ALD 487

REASONS FOR DECISION

5 September 2002 Mr M J Sassella, Senior Member

THE APPLICATION

1. This is an application to the Administrative Appeals Tribunal ("the tribunal") by Nancy Jane McManus ("the applicant") for an extension of the time permitted by the Safety, Rehabilitation and Compensation Act 1988 ("the Act") for the lodging of an application to the tribunal for review of a decision made under the Act by Comcare ("the respondent"). Should this application be successful Ms McManus's associated for review of the Comcare decision will be entertained by the tribunal.

HEARING

2. The tribunal convened a hearing in this matter in Canberra on 15 July 2002. Ms McManus was represented by Mr D Richards, a solicitor from the law firm, Richards. Comcare was represented by Mr B Dubé of counsel, instructed by Sparke Helmore, Solicitors. The tribunal heard evidence from Mr Richards and had access to the following documentary evidence:

* Exhibit A1 - Applicant's written submissions, 15 July 2002.

* Exhibit A2 - Letter dated 4 March 2002 from Richards to Australian Air Express.

* Exhibit A3 - Report by Dr L-A May, rheumatologist, 7 November 2000.

* Exhibit A4 - Report by Dr H V Veness, psychiatrist, 17 July 2000.

* Exhibit R1 - Extension of time documents (including exhibits EOT1 - EOT34) provided by the respondent.

* Exhibit R2 - Respondent's submissions opposing extension of time, 24 June 2002.

* Exhibit R3 - Letter dated 20 April 2000 from Comcare independent review officer to Baxter & O'Keeffe, Lawyers.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

3. In considering whether to grant an extension of time the tribunal applies the principles in the Federal Court decision, Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315. There are a number of criteria that arise from that decision. These are most notably:

(a) The applicant should provide a reasonable explanation for the delay. As Wilcox J says in his decision (at page 320):

"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 to be shown but the court will not grant the application unless positively satisfied that it is proper to do so. ... 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."

(b) The applicant should have taken action other than this application to make the decision-maker aware that he or she contests the finality of the decision.

(c) The respondent should not be unduly prejudiced if the time is extended.

(d) The merits of the substantive application are properly to be taken into account in considering whether an extension is to be granted.

4. There are some additional matters to note.

* In Comcare v A'Hearn (1993) 45 FCR 441 the Federal Court pointed out that the lack of a satisfactory explanation for the delay need not be fatal to an application for an extension of time, although such an explanation should usually be given.

* In the Cohen case (supra) an additional criterion was identified, however, in the current tribunal's view it has relevance in only some situations. This criterion is "considerations of fairness as between an applicant and other persons otherwise in a like position". It has no relevance in the present case.

* Other cases have laid down principles that are broadly consistent with those in Cohen (supra). In Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42 President O'Connor said at page 48:

"The principles to be applied in considering an application for extension of time under s 29(7) ... are:

(i) prima facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so.

(ii) it is relevant whether the applicant rested on his [or her] rights or took action to make the decision maker aware that the decision was being contested;

(iii) any prejudice to the respondent that would be caused by granting the extension of time is relevant;

(iv) any wider prejudice to the general public in terms of disruption to established practices is relevant;

(v) the merits of the substantial application are relevant; and

(vi) fairness of granting an extension of time as between the applicant and other persons in like position is relevant."

5. The wider prejudice to the general public, as it may be balanced against the interests of the individual applicant receives attention in other cases.

6. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (High Court) McHugh J discussed the reasons for limitation of actions. At pages 551-552 he makes the following comments:

"The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates'. ...

"...it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed. ...

"A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose. ...

"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."

7. In Re Petrou and Australian Postal Corporation (1992) 25 ALD 407 at 411 the Tribunal cited with approval a comment by Deputy President McMahon in an earlier decision where he said:

"Any delay, of course, is prejudicial. The more time that elapses between the events to be examined and the date of the hearing, the more difficult it is to present meaningful evidence ... Even if this were not so, however, the mere absence of prejudice would not be enough to justify the grant of an extension."

8. Senior Member McGirr said on the same page:

"Courts and tribunals ought as far as possible to assist litigants and the profession in the timely and efficient disposition of cases. At some point in time parties and their legal representatives ought to be able to consider that a case has been finalised."

9. However, in the Taylor case (supra) Toohey and Gummow JJ state at page 550, "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."

10. Kirby J at page 573 says:

"In judging prejudice, for the purpose of considering the order extending time, the matter to be weighed is the increase of prejudice after the expiry of the ordinary period of limitation. Until that time the law, as expressed in the Act, envisages that the defendant must accept any prejudice or delay without complaint."

explanation for delay

11. On 17 March 1999 Ms McManus lodged a claim for compensation in respect of cervical headache which, she said, arose at her desk during the course of her work for Australian Air Express (EOT8). The injury or disease was said to have arisen on 10 March 1999.

12. On 12 May 1999 a Comcare delegate rejected the compensation claim (EOT17).

13. On 24 May 1999 Ms McManus's solicitors, Baxter & O'Keeffe, sent a letter to Comcare seeking a reconsideration of the adverse decision (EOT18).

14. On 20 April 2000 a Comcare delegate affirmed the decision of 12 May 1999 (EOT27). The decision-maker considered that there was no medical evidence linking the applicant's condition with her employment.

15. On 30 May 2002 the applicant's current solicitors sought from the tribunal an extension of time for lodging an application for review by the tribunal of the decision of 20 April 2000 (EOT2).

16. The application to the tribunal should have been made by no later than a few days after 20 June 2000. The application was therefore late by nearly two years.

17. A number of reasons were advanced for the delay. In the application to the tribunal the reasons were that Richards Lawyers had only recently been instructed to act, that Richards had problems obtaining the file from Ms McManus's previous solicitors and that it was only on 29 May 2002 that Richards had confirmed that the former solicitors had not sought reconsideration.

18. In ex A1 Mr David Richards, the applicant's solicitor, presented written submissions for Ms McManus. This submission dealt with the problems of Richards Lawyers in progressing the matter after Ms McManus retained them on 25 February 2002. It referred to several new pieces of information:

* Baxter & O'Keeffe had still not provided the correct file. They told Richards Lawyers on 29 May 2002 that "they would get to it".

* Australian Air Express were sent a letter on 4 March 2002 (ex A2) seeking a copy of the applicant's personnel file. That request was refused, apparently on legal advice.

* There had been a clerical error in the office of Richards whereby a copy of the Comcare reconsideration dated 20 April 2000 had been provided to Richards but a fresh request for that document went to Comcare on 4 April 2002. Comcare provided a second copy on 30 April 2002.

19. Ms McManus was not available to give evidence but Mr Richards did so on her behalf. Ms McManus had been unaware that Baxter & O'Keeffe had not lodged an application for review with the tribunal in a timely fashion after receiving the reviewable decision. She was ignorant of the review processes under the Act.

20. Ms McManus had reported that she had difficulty obtaining information from Baxter & O'Keeffe. They failed to return her telephone calls and gave her no information about the matter.

21. Mr Richards relied on Comcare v A'Hearn (above) for the proposition that the delays by Baxter & O'Keeffe should not be visited on Ms McManus and for the other proposition that, even if the tribunal finds this explanation unacceptable, it can still grant an extension of time.

22. In response Mr Dubé submitted that it is not sufficient to allege simply that a firm of solicitors were dilatory in taking action. He said that more needed to be known about the dealings between Ms McManus and Baxter & O'Keeffe and about any advice they gave Ms McManus before the matter can be concluded. As he said, Baxter & O'Keeffe may have obtained an opinion from Dr Danta and advised Ms McManus on the basis of that report against taking the matter further. Another possibility was that the firm had advised Ms McManus to concentrate on pursuing her common law rights rather than her workers' compensation rights.

23. He submitted that, given that a notice of rights was provided with the reviewable decision, a law firm with any confidence that a client's application might succeed would have lodged an application for review with the tribunal within time. Mr Dubé cited the tribunal's decision in Re Ross and Australian Postal Corporation (2002) 67 ALD 487 as an example of a case in which an extension of time was refused because the tribunal considered that the applicant, knowing of his rights, had initially decided not to proceed with an appeal but had changed his mind later.

24. The tribunal found this matter somewhat difficult because of Ms McManus's non-appearance at the hearing. In the Ross case (above) Mr Ross did appear and, it might be said, that was to his disadvantage because he prejudiced his case by giving truthful evidence whereas Mr Richards has conscientiously provided evidence on oath on Ms McManus's behalf but he was not in a position to address the issues involving dealings between Ms McManus and her solicitors raised properly by Mr Dubé.

25. The tribunal is aware from Mr Richards' evidence that Ms McManus allegedly experienced injuries to her neck, back, legs, arms and neurological and psychiatric effects as a result of motor vehicle accidents on 9 September 1999 and 12 May 2000. Court proceedings are afoot in each of these matters, but Comcare and Australian Air Express are in no way involved in those actions. The first of these accidents occurred while Comcare was conducting a reconsideration. The second occurred only weeks after the reviewable decision was made. It is conceivable that the workers' compensation matter was lost in the flurry of after-effects of these accidents and consideration of possible legal action relating to them.

26. The tribunal has decided on balance that a satisfactory explanation was provided by Mr Richards on behalf of his client. The tribunal accepts Mr Richards' evidence as to the difficulties obtaining the relevant file material from Baxter & O'Keeffe and considers that that may be indicative of difficulties that firm has experienced in handling Ms McManus's matters. At the same time the tribunal considers that Mr Dubé's theories as to the possible advice that flowed from Baxter & O'Keeffe to Ms McManus were no more than that. In reaching this conclusion the tribunal is influenced by the relatively short period of delay involved in this matter.

agitation of matter in other forums

27. Mr Richards did not suggest that Ms McManus had agitated her workers' compensation or related issues in any way involving Comcare between April 2000 and mid-2002. As Mr Dubé said, Comcare was unaware of Ms McManus's dissatisfaction until she lodged her tribunal application. However, the tribunal's view is that this factor will seldom operate to disentitle an applicant to an extension of time if he or she has a satisfactory explanation for delay. That explanation will often explain also the failure to agitate in other forums. The tribunal finds in the current case that Ms McManus had an acceptable explanation for not agitating her cause in other forums. She believed that her solicitors were doing this.

prejudice to the respondent if time extended

28. Mr Dubé submitted that the respondent would be prejudiced by the grant of an extension of time. He noted that Ms McManus's treating doctors had found that her headaches were caused by her employment but without objective evidence to support those findings. At the same time, on 25 March 1999, Ms McManus told a kinesiologist conducting a workstation assessment that she had no faith in the medical profession and that "her body ha[d] been 'falling apart' since she had her child" (EOT13/23). Mr Dubé suggested that the respondent could have pursued this and obtained contemporaneous evidence with earlier notice of Ms McManus's self-assessment of her general physical condition. That opportunity had been lost.

29. Mr Dubé indicated that Ms McManus had suffered from a number of other injuries and/or conditions since 1999. It would be difficult so long after the event to obtain medical evidence that could disentangle the different conditions and their probable causes. There was no medical examination commissioned by Comcare in advance of the motor vehicle accident in May 2000. Two motor vehicle accidents had intervened.

30. Dr L-A May, a rheumatologist, had on 7 November 2000 (ex A3) accepted a history that Ms McManus's newer working conditions as a domestic/international clerk had aggravated her condition. There is no evidence of the workplace arrangements at that time and such evidence would now be difficult to obtain. As time has passed witnesses become difficult to identify and their recollections fade.

31. Mr Richards saw no or no unreasonable prejudice. Up to April 2000 the respondent was investigating Ms McManus's claim. The respondent obtained a significant amount of medical evidence from 22 March 1999 to 12 May 1999 from Drs Pradith Southi (EOT4), Rudzki (EOT5), Veness (EOT6), Morris (EOT10, EOT12) and Davidson (EOT16). They obtained evidence also from a physiotherapist (EOT11).

32. The tribunal considers that Mr Richards is correct in submitting that there is a significant amount of medical evidence dating from the period proximate to the events that would be up for contention before the tribunal if an extension if time is allowed. In the tribunal's view it would be necessary for the applicant to lodge a fresh claim or seek to extend the ambit of the original claim if she were to bring into contention the work she did as a domestic/international clerk, so that is less of a problem in the current application than it might seem.

33. The tribunal also notes the views of the Federal Court as to which party bears a practical onus in a matter like this that is heard on the merits by the tribunal. The applicant has yet to establish a claim to compensation. The practical onus will be on her if an extension is granted. On this question of whether a party before the tribunal bears an onus of proof, Hill J in the Federal Court summarised the position in Casarotto v Australian Postal Corporation (1989) 86 ALR 399, 412-413:

"In McDonald v. Director General of Social Security (1984) 1 FCR 354 Woodward J. in the context of social security legislation counselled against using the expression 'onus of proof' where an application comes to the Administrative Appeals Tribunal for review. Of course, where a statutory provision such as s.190(b) of the Income Tax Assessment Act 1936 deals with the matter specifically there is no difficulty. The Administrative Appeals Tribunal is bound by s.43 of the Administrative Appeals Tribunal Act 1975 to carry out the review by placing itself in the shoes of the administrator, although it considers the matter having regard to the material before it rather than the material that was originally before the administrator. Since the tribunal is obliged to inform itself on any matter in such manner as it thinks appropriate (s.33(1)(c)) and is not bound as such by the rules of evidence, it is obvious that there may be difficulties if principles such as onus of proof applicable in proceedings before courts are strictly adopted.

"It may be that what was said by Woodward J. in McDonald should be confined to the context of social security legislation. Thus in Minister for Health v. Thomson (1985) 60 ALR 701 at 712 Beaumont J, referring to proceedings before the Medical Services Committee established under the Health Insurance Act 1973 (Cth) said:

'Generally speaking, concepts of onus of proof used in adversary proceedings are inapplicable in administrative proceedings in the social security area: see McDonald v. Director-General of Social Security (1984) 1 FCR 354. However, where, as here, a breach of discipline, or something analogous, is alleged, the onus of proving such a breach lies upon the accuser. The general position is explained by Professor Enid Campbell in Principles of Evidence and Administrative Tribunals, published in Campbell and Waller (ed) "Well and Truly Tried", Monash Studies in Law (1982) p 53:

"There may be legal burdens of proof to be discharged in administrative proceedings just as much as there are legal burdens of proof in purely judicial proceedings. Sometimes the incidence of the burden of proof is spelled out by legislation, but more often than not it is simply implied in the nature of the proceedings. If, for example, entitlement to grant of a licence or benefit depends on proof that certain qualifications have been met, the burden of proving the relevant facts going to qualifications must fall upon the applicant. Similarly, where the issue to be decided is whether circumstances have arisen which would justify cancellation or suspension of a licence, or a finding that a breach of discipline had occurred, the onus of proving that these circumstances have arisen would devolve on the accuser. This would be so, notwithstanding that the accuser was also, of necessity, the person or body having authority to adjudicate."

"Nevertheless, as a practical matter, an applicant for review in the tribunal in a case such as the present is asserting a claim for a right to compensation (cf. Vulic v.Capital Territory Health Commission (1982) 5 ALD 35 at 38 per Morling J.) and ultimately the tribunal, in considering the claim, can only act on the evidence before it; to do otherwise would be to commit an error of law. Thus in a practical sense, if not in a strict legal sense, it will be the responsibility of an applicant for review to ensure that there is laid before the tribunal all material which it will be necessary for the tribunal to have before it to enable it to come to a decision. Where, as here, material necessary to an applicant's case is not laid before the tribunal (and the reason for it not being put before the tribunal was that to do so would have been inconsistent with the applicant's case that there had been no recovery and that compensation should continue indefinitely) the applicant will not be able to complain if the tribunal, doing the best it can with the evidence before it, reaches a conclusion which is adverse to the applicant."

34. It would be for Ms McManus to convince the tribunal on the balance of probabilities that she has any substantial ongoing injury that can be said to have arisen out of or in the course of her employment where there have been several instances of novus actus interveniens. This would not be easy. The tribunal finds that there is no, or no sufficient, prejudice to the respondent from the grant of an extension of time such as to prevent such an extension.

merits of the substantive application

35. The tribunal considers that the applicant has an arguable case. Mr Richards relied on the medical reports of Drs L-A May (ex A3) and H V Veness (ex A4). Dr May saw permanent restrictions in the work Ms McManus can do as a result of her work-related condition. Dr Veness saw Ms McManus's depression as attributable at least in part to her work-caused headaches. He saw her when she first lodged her compensation claim and later. At the same time Mr Dubé noted that the kinesiologist's report (EOT13) indicated a need for only minor adjustments to Ms McManus's workstation. It was the ergonomics of her workstation that Ms McManus said were the root cause of her problems. The tribunal does not see Ms McManus's workers' compensation case as strong but it is arguable.

other factors

36. The other subsidiary factors raised in the Cohen case (above) have no application to this case.

CONCLUSION

37. The tribunal has decided to grant Ms McManus an extension of time in which to lodge her application for review.

DECISION

38. Noting that the applicant has applied in writing for an extension of time for the making of an application to the tribunal, the tribunal extends the time for the making of that application to 30 May 2002.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member

Signed: .....................................................................................

Associate

Date of Hearing 15 July 2002

Date of Decision 5 September 2002

Counsel for the applicant Mr D Richards, Richards Lawyers

Solicitor for the applicant Mr D Richards, Richards Lawyers

Counsel for the respondent Mr B Dubé, Counsel, Australian Government Solicitor

Solicitor for the respondent Sparke Helmore, Solicitors