Adiprodjo and Australian Postal Corporation - [2000] AATA 1163

DECISION AND REASONS FOR DECISION [2000] AATA 1163

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/426

GENERAL ADMINISTRATIVE DIVISION       )
           Re      SWEE PENG ADIPRODJO
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date21 December 2000
PlaceSydney

Decision The Tribunal determines that: (a) the Tribunal does not have jurisdiction to consider an application for an extension of time in relation to the claim of 9 October 1995 (the first claim); and (b) the Tribunal does not grant an extension of time for the Applicant to make an application to the Administrative Appeals Tribunal for review of the second claim for compensation dated 7 December 1998; and (c) in the event that jurisdiction was found to exist in relation to the claim of 9 October 1995, the Tribunal would not grant an extension of time for the Applicant to make an application to the Administrative Tribunal for review of the first claim for compensation dated 9 October 1995.

…………………………
Dr J D Campbell
Member
CATCHWORDS
WORKERS COMPENSATION – procedural matters – reviewable decisions – issue of reconsideration – history of reviewable decisions – extension of time – reasons for request – matters to be considered in relation to each of the claims – definition of remaining claim

Safety, Rehabilitation and Compensation Act 1988, sections 38, 60, 62, 65
Administrative Appeals Tribunal Act 1975, sections 25, 29

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs & the Environment (1984) 7 ALD 315
Gallo v Dawson (1990) 93 ALR 479
Re Cao and Australian Postal Corporation [1999] AATA 995
Comcare v Willems (1996) 76 FCR 244

REASONS FOR DECISION

Dr J D Campbell, Member

Ms Swee Peng Adiprodjo ("the Applicant") in this matter seeks an extension of time in order that an appeal can be lodged with the Administrative Appeals Tribunal ("the Tribunal") in relation to two claims for compensation lodged with the Australian Postal Corporation ("the Respondent") on 9 October 1995 and 7 December 1998.
The issue of seeking an extension of time for these two claims arose from the lodgement of a further claim for compensation by the Applicant with the Respondent on 25 January 2000 which, it is argued by the Respondent, incorporated the issues of the earlier two claims and which is properly before the Tribunal, having been the subject of a denial of liability on 7 February 2000, a reconsideration on 1 March 2000 and an application to the Administrative Appeals Tribunal on 20 March 2000.
A hearing was held before the Tribunal on 11 August 2000, at which the Applicant was represented by Mr Hassett, a solicitor of Hassett, Dixon Solicitors. The Applicant presented oral evidence to the Tribunal. The Respondent was represented by Mr Elliot of Counsel, instructed by Mr Hanger of Blake, Dawson, Waldron Solicitors.
The following written material was placed in evidence before the Tribunal:
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 T1-T33 pp1-350

Issues

The relevant issues before the Tribunal are:
(a) whether, in relation to the claim for compensation lodged on 9 October 1995, the Tribunal has jurisdiction to consider the matter; and if so
(b) whether the Tribunal should exercise a discretion to grant the Applicant an extension of time to lodge an appeal to the Tribunal; and
(c) whether the Tribunal should exercise a discretion to grant the Applicant an extension of time to lodge an appeal to the Tribunal in relation to a claim for compensation lodged on 8 December 1998 by the Applicant with the Respondent relating to an incident in late November 1998.

Legislation

The relevant legislation for this matter is:
(a) the Safety, Rehabilitation and Compensation Act 1988 ("the Act") and in particular sections 38, 60, 62 and 65; and
(b) the Administrative Appeals Tribunal Act 1975, sections 25 and 29.

Background

The Applicant in this matter has been employed as a Postal Services Officer with the Respondent since 1990. On 9 October 1995 the Applicant lodged a claim for compensation with the Respondent for repetitive strain injury to "neck, shoulder, arm, wrist, finger (right and left) and all over lower back" (T6, P15). On 20 December 1995 the Respondent wrote to the Applicant seeking clarification as to whether work related stress was to be considered as an integral part of the claim (T15, p45). On 11 January 1996 the Applicant wrote to the Respondent seeking an extension of time to complete the statement requested by the Respondent in their correspondence of 20 December 1995 (T17, p47). On 5 February 1996 the Applicant, in a letter to the Respondent, stated that she was "suffering from a work related stress which may be related to my relationship with some of the supervisors at work" and that "what this has led to is pain in the neck, left shoulder, left arm and thoracic lumbar spine areas which are muscular of nature" (T23, p64). On 12 February 1996 the Respondent wrote to the Applicant stating that as a result of considering all the evidence on her claim for compensation in respect of "tendonitis right shoulder incident of 4 July 1995", liability to pay compensation in relation to that claim would cease on and from 18 November 1995. The Respondent also advised the Applicant that "the condition of stress would have to be the subject of a new claim as it is attributable to separate causes of injury ie personality difference at work". Further the Respondent "found that there is no liability for the stress condition as it is not related to your compensable condition " (T26, pp68-69).
On 28 February 1996, solicitors acting for the Applicant wrote to the Respondent seeking an extension of time in regard to a possible reconsideration (T28, p72). On 7 March 1996 the solicitors acting for the Applicant wrote to the Respondent confirming a telephone advice of 5 March 1996 that the Respondent would "grant our client a reasonable extension of time in order to present her application for reconsideration" (T31, p75). The solicitors for the Applicant wrote to the Respondent on 3 May 1996, enclosing a medical report and indicating that they were seeking further medical reports before asking for the appropriate reconsideration (T36, p88). A similar letter was forwarded by the Applicant's solicitor on 26 June 1996, indicating that they expected to complete the medical assessment of the Applicant in the near future, at which time they would formally request a reconsideration (T37, p89). On 9 October 1996, the Applicant's solicitors again wrote to the Respondent stating that they would be shortly in a position to finalise their submissions in respect of their formal application for a reconsideration (T45, p101).
On 22 November 1996 the Applicant sought reconsideration of the decision dated 12 February 1996 to disallow her compensation claim on and from 18 November 1995 (T60, p114). A file note written on the bottom of the Applicant's request and dated 9 December 1996 states that:
"Solicitors involved.
Have been given an extension of time by….(see correspondence circa March 1996 on comp. file)
Spoke with Neville. Papers will be ready to forward soon" (T60, p114)

The Respondent, in a letter to the Applicant's solicitors dated 29 August 1997, confirmed matters that had been the subject of earlier advice by the Applicant's solicitors. This letter made reference to a telephone conversation of 30 April 1997 in which the Respondent states that he was advised that the Applicant's submission would be forwarded to the Respondent that week. The letter further stated that in light of the continuing delay, no further action would be taken until and unless the finalised documentation or a written request to proceed to reconsideration on the basis of the evidence already available was provided (T69, pp135-136).
On 7 December 1998 the Applicant lodged a claim for compensation with the Respondent for aggravation of "chronic muscular skeletal syndrome – neck and lower back and shoulder" and that the aggravation was due to "removal of the chair on 30 November 1998 (T76, p148). The Respondent denied liability for this claim in a letter to the Applicant on 23 December 1998 (T84). The Applicant made a request for reconsideration in a letter to the Respondent dated 19 January 1999 (T86). The Respondent, in a letter to the Applicant dated 5 February 1999, advised that the Applicant should forward any documentation that the Applicant considered appropriate to assist in reviewing the delegate's decision (T92). On 12 February 1999, the Applicant sought an extension in order that a particular medical report be available (T93). The Respondent replied to the Applicant on 16 February 1999 granting a time extension of 14 days from the date of the examination (T96). On 7 May 1999 the Respondent advised the Applicant that following reconsideration and review of all the evidentiary material, the decision of 23 December 1998 was affirmed (T105).
On 25 January 2000 the Applicant's new solicitors lodged a claim for compensation with the Respondent on behalf of the Applicant, nominating the following injuries/illnesses:
(a) chronic myo-skeletal pain syndrome;
(b) permanent collapse of C 5/6 and 6/7 in the neck; and
(c) post traumatic stress disorder (T127).

On 7 February 2000 the Respondent declined liability under s.14 of the Act for any of the conditions nominated, and in particular stated that the first and second listed injuries had been the subject of earlier compensation claims and had been comprehensively dealt with (T128). Following a request for reconsideration from the Applicant's solicitors on 9 February 2000, the Respondent, following a review of all the evidence, advised the Applicant in a letter dated 1 March 2000 that the decision of the delegate of the Respondent of 7 February 2000 was affirmed (T131). On 20 March 2000 the Applicant made an application for review of this decision to the Administrative Appeals Tribunal (T1).
Applicant's evidence
The Applicant described to the Tribunal the circumstances and symptomatology of the three episodes that have led to both her current claim for compensation and her earlier two claims. These were described to the Tribunal in the following terms:

Episode one
(1) The Applicant described a history of injury in July 1995 with symptomatology of numbness and pain in right fingers, right wrist, right shoulder, neck and lower back with a limited range of movement in extension and rotation. She stated that she saw Dr Kearns; lodged a claim for compensation in October 1995; saw Dr Dowda; was accepted for compensation; was not told what was happening; was paid until sick leave was exhausted; liability was ceased; she made a request for reconsideration, but did not appeal because she was in a lot of pain and did not understand the law.
(2) In response to questions asked in cross-examination the Applicant stated that:

i) there was no frank incident in 1995, with her condition arising from aspects of her work environment, namely:
(a) the counter was too high;
(b) the chair was too heavy;
(c) there was no computer station;
(d) she was interrupted by another worker; and
(e) she was working in an awkward position and her eyes were not in line with the computer.

ii) Stress was associated with the pain, and that any emotional problems arose because of the pain, with medical certificates from Dr Kearns reflecting such a situation.

(3) The letter from the Respondent of 12 February 1996 (T26) did cease liability, and she understood that her compensation was ceasing and that a claim for stress would require a separate claim lodgement.
(4) She applied for reconsideration of this decision, and she was unable to recall whether her solicitors did apply for such a reconsideration.
(5) She is unable to remember the letter dated 29 August 1997 from the Respondent to her solicitors concerning placing the reconsideration in abeyance until instructions to proceed were given (T69).
(6). She did not proceed with further instructions to either her solicitors or the Respondent because she decided not to proceed for the following reasons:

(a) the cost of paying solicitors and doctors;
(b) she was in too much pain;
(c) she was trying to get back to normal;
(d) she had been told to get back to work, and work through the rehabilitation program; and
(e) she might lose her job if she pursued her compensation claim, but she went ahead anyway.

(7) She made the decision not to proceed herself, because it was too expensive.
Episode Two
(1) The Applicant described this episode as resulting from a chair being ordered to be removed on 27 November 1998. The Applicant stated that she worked on 30 November 1998 and 1 and 2 December 1998, but as a consequence of severe pain in neck, shoulder and back, she did not attend on 4 and 5 December 1998.
(2) The Applicant said her claim for compensation was rejected and this decision was affirmed on reconsideration. She stated that she did not appeal to the Administrative Appeals Tribunal as she was afraid she would lose her job.
(3) The Applicant, in response to questions in cross-examination stated that:

(a) there was no frank incident when the stool, which had been provided for her in 1996, was removed.
(b). she was made aware of her appeal rights to the Administrative Appeals Tribunal in a letter received from the Respondent on 7 May 1999 (T105); and
(c). She made a decision at that time not to appeal.

Episode Three
(1) In relation to this new claim, the Applicant stated that:

(a) the chronic myo-skeletal pain syndrome related to events back in 1995 and no other events;
(b) the collapse of C5/6 and C6/7 cervical discs related to events in 1995 which were aggravated by the removal of the chair in November/December 1998; and
(c) the post traumatic stress disorder related to symptoms of stress, anxiety and depression, and that these had been caused by the actions of two managers, which she described in the following terms:
i) events surrounding the chair removal in November/December 1998, and one manager's demands relating to attendance for medical assessment and his behaviour at the time and on subsequent days; and
ii) events surrounding her treatment in the workforce in 1999 by a female manager, including exclusion from meetings, no higher duties allowance, no overtime, and the general behaviour of the manager towards her.

Submissions: The Applicant

The Applicant submitted that the latest claim is a fair and responsible summation of the injuries that have been suffered and that the earlier two claims were simply to do with early manifestations of the injuries, which over time have widened and deepened in all respects. It was further submitted that there has been no external review of these extensive injuries which have been suffered and have been worsening since 1995. It was the Applicant's submission that the Tribunal grant the request for an extension of time to appeal the earlier two decisions, which in essence will bring all matters before it at a hearing. This in the Applicant's submission is the appropriate course of action in view of the difficulties that will arise in dealing with the issues raised only in part. The Applicant submits that it is necessary to define the ambit of the first two claims, as well as any consideration of any further aggravation since 1998. It was further contended that there are substantial issues involved, including substantial compensation if the Applicant is successful. It was further submitted that recognition of the inherent characteristics of the Applicant in terms of her ethnicity and relative educational achievements should be considered by the Tribunal.
Submissions: The Respondent
Counsel for the Respondent submitted that the first two compensation claims have been dealt with appropriately and that any extension of time should not be granted. In relation to the first claim of October 1995 Counsel submitted that there has been no reconsideration and therefore the Tribunal lacks jurisdiction in this matter. Counsel further submitted that even if the Tribunal deemed that a reconsideration had occurred, the Tribunal, in weighing the various factors which should be considered when exercising the discretion to grant an extension of time, should conclude that the exercise of such a discretion would not be reasonable in all the circumstances.
Counsel similarly submitted that in relation to the second claim for compensation of December 1998, an extension of time should not be granted in the light of such factors as the Applicant not wishing to make an appeal within time, by the nature of the claim, the likelihood of success of the claim, the history of proceedings and the conduct of the parties. In this regard Counsel referred to earlier cases which have considered such issues, namely Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and the Environment (1984) 7 ALD 315 and Gallo vDawson (1990) 93 ALR 479.
In relation to the third claim Counsel submitted that the first two elements clearly related to the earlier claims, which in his submission had been dealt with and finalised. In relation to the post traumatic stress disorder element of the claim, Counsel submitted that there was clearly no evidence contained within the evidentiary documents to support such a clinical diagnosis. In Counsel's view, the evidence of the Applicant appears to relate to complaints by the Applicant of unfair treatment by two managers in the work place and that such treatment is alleged to have caused the Applicant symptoms of stress, anxiety and depression.
Consideration and findings
In this matter the issues were thoroughly canvassed between the parties and each party was made aware of the other's position and their arguments as to how they justified adopting the position they postulated. The Tribunal, having considered the matters put before it and the evidence of the Applicant, makes the following findings of fact in relation to the claim for compensation dated 9 October 1995:
1. the claim related to repetitive strain injury causing pain to neck, shoulder, arm, wrist and finger (right and left);
2. the injury claimed related to a period commencing 4 July 1995 when the Applicant experienced pain in her fingers, wrist, arm, shoulder and neck which gradually increased over time to involve both shoulders and elbows and the lower back;
3. liability for the injury in the Respondent's letter of 12 February 1996 was ceased on and from 18 November 1995;
4. the Applicant was advised by the Respondent on 12 February 1996 to make a separate claim if stress was attributable to other causes in the work environment, eg personality differences at work;
5. the Applicant was further advised on 12 February 1996 by the Respondent that there was no liability for the stress condition as it was not related to the Applicant's compensible condition;
6. the Applicant was legally represented from at least late February 1996 and continued to do so for the period in which this claim was in process;
7. an extension of time was granted to the Applicant's solicitors in early March 1996 and for the next 18 months there was an exchange of correspondence between the parties, with the Applicant's solicitors always indicating that a request for reconsideration would be made when the necessary medical reports were to hand;
8. the Applicant did make a personal request for reconsideration to the Respondent on 22 November 1996, with the Respondent again speaking with the Applicant's solicitor, who again advised that the necessary papers would soon be ready;
9. a formal request for a reconsideration of the decision of 12 February 1996 was never made by the Applicant's solicitors and the Respondent's letter of 29 August 1997 clearly indicated to the Applicant's solicitors that the claim would not be further considered because of the Applicant's failure to provide final documentation, and that reconsideration of the decision would only occur if such documentation is received and/or that there is a written request for a reconsideration; and
10. the Applicant decided that for a number of personal reasons, she would not further pursue this claim.

In relation to the claim for compensation lodged on 7 December 1998 the Tribunal makes the following findings of fact:
1. the claim related to aggravation of chronic musculo skeletal syndrome of neck, lower back and shoulder;
2. there was no frank injury, with the aggravation arising as a result of the removal of a chair on 30 November 1998;
3. liability in relation to this claim was denied by the Respondent on 23 December 1998;
4. consequent to the provision of further medical reports by the Applicant, the Respondent, on 7 May 1999, after review of all the evidence, and reconsideration, affirmed the decision of 23 December 1998; and
5. the Applicant made a decision at that time not to further progress this claim by way of an appeal to the Administrative Appeals Tribunal.
Finally the Tribunal finds the following facts in relation to the claim lodged on 25 January 2000:
1. the claim related to three conditions, the first of which was chronic myo-skeletal pain syndrome, and this related to the events of 1995 only;.
2. this first element of the claim is congruent in all aspects which the claim lodged on 9 October 1995 (ie the first claim);
3. the second condition nominated relates to events in 1995, whereby with the removal of the chair on 30 November 1998, there was aggravation to the original injury;
4. this second element of this claim is congruent in all circumstances with the claim lodged on 7 December 1998 (ie the second claim);
5. the third condition nominated in the claim relates to stress, anxiety and depression arising from work related incidents and particularly the manner and circumstances involved in the way the Applicant has been treated by two particular managers following the chair incident in December 1998; and
6. this particular claim was the subject of denial of liability by the Respondent on 7 February 2000, with a reconsideration of this decision affirming the earlier decision on 1 March 2000 subsequent to which the Applicant lodged an application for a review of this decision on 20 March 2000 with the Administrative Appeals Tribunal.

Statutory framework

In considering this matter the Tribunal notes the relevant statutory framework, the Administrative Appeals Tribunal Act 1975 ("the AAT Act"):
(a) subsection 25(4) of the AAT Act provides the power for the Tribunal to review any decision in respect of which application is made to it under any enactment;
(b) subsection 25(5) deems a failure of a person to do an act or thing within a period prescribed by an enactment to be a decision not to do that act or thing;
(c) subsection 25(6)(b) determines that an enactment which provides for application to the Tribunal may also include provisions adding to, excluding or modifying the operations of any of the provisions of sections...29…in relation to such applications;
(d) subsection 29(1) of the AAT Act nominates the form, nature and content of an application to the Tribunal for review of a decision; subsection 29(2) nominates the prescribed time of 28 days for lodgement of such an application for review and subsection 29(3) determines that for a decision that is deemed to be made by reason of subsection 25(5), commencement day for the lodgement period is the day on which the decision is deemed to be made and ending in accordance with the circumstances nominated in subsection 25(3) (a) and (b);
(e) section 60(1) of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") defines:
"…
Determination means a determination, decision or requirement made under sections 8,14, 15, 16, 17, 18, 19, 20…of the Act.
…
Reviewable decision means a decision made under ss38(4) or section 62 of the Act.
…"
(f) section 62 of the Act provides for the reconsideration of determinations (subsection 62(1)), those who may make such a request (subsection 62(2)), the form in which such a request for reconsideration should be made, the time frame in which it is to be made (30 days) (subsection 62(3)) and the mandatory nature of such reconsideration (subsection 62(4));
(g) section 65 of the Act provides for a modification of the time frame nominated in subsection 29(2) of the AAT Act for the lodging of an application for review to that Tribunal in 60 days (subsection 65(4)).
In considering the issues surrounding the first claim for compensation of 9 October 1995, the Tribunal observes that there was a determination made by the Respondent and notified to the Applicant on 12 February 1996 which ceased liability from 18 November 1995. The Tribunal further observes that for the remainder of the time in which this matter can be said "to be active", namely from late February 1996 to 29 August 1997, a firm of solicitors was retained by the Applicant to further progress the matter. The Tribunal further notes that at all times throughout the period, the Applicant was subject to medical review and therapy, and that on many occasions the Applicant's solicitors indicated that the formal request for reconsideration would be forthcoming, the Respondent having acquiesced to an extension of time for such lodgement in early April 1996 following a request from the Applicant's solicitors. The Tribunal further observes that the Applicant did make a request for reconsideration on 22 November 1996, but, as noted in the file note of the Respondent, contact with the Applicant's solicitors indicated that further documentation was required before a formal request for reconsideration would be made.
The Tribunal further acknowledges the evidence given by the Applicant, that she was aware that if she wanted to claim stress at that time, she would have to submit a further claim. Further the Tribunal acknowledges that the Applicant made a decision not to pursue this claim for a number of economic and personal reasons which she stated in her oral evidence.
It is clear to the Tribunal that no reconsideration of the determination of 12 February 1996 was ever made. In relation to the issue of whether, in light of the Applicant having made a request for reconsideration of this determination on 22 November 1996, and this reconsideration was not undertaken, the Tribunal should consider that the failure to undertake such a reconsideration to constitute a deemed reconsideration pursuant to subsection 25(5) of the AAT Act. The Tribunal in considering this issue is of the opinion that all the circumstances surrounding the activities addressed to the Tribunal should be considered, before concluding on this matter. In this regard the Tribunal notes that the Applicant had retained solicitors to act on her behalf and that no evidence was adduced before the Tribunal that the Applicant was in any way unhappy with the solicitors' actions, or indeed was the Tribunal advised of any reasons for her discontinuance in the use of that particular firm of solicitors. Further the Tribunal notes the considerable medical evidence collected and lodged during the period of the claim's compilation and progress and that much of the medical opinions expressed views which created issues of both defining the nature of the injury and its relationship to an incident or incidents in the workplace. Further it would seem that the matter was further complicated by the decision that was made by the Applicant to terminate further progression of the matter. Further the Tribunal, in finding that while the Applicant had made a request for reconsideration, and this request had effectively been withdrawn by her solicitors, observed that throughout the progress of the claim, the circumstances that existed during such progression, including the Applicant voluntarily entering a rehabilitation program and the medical opinions which evolved, necessitated a particular approach by both parties. During this period it is evident to the Tribunal that the Respondent provided sufficient latitude in terms of time for the Applicant to apply for reconsideration of the determination of 12 February 1996, with all the necessary medical documentation to hand. The Tribunal would further comment that the Applicant had been given ample time to undertake such a request for reconsideration by 29 August 1997, the date on which the Respondent placed any further progression on hold. Accordingly the Tribunal concludes that as a request for reconsideration was never sustained to the Respondent, there does not exist a situation in which the Tribunal can deem a reconsideration to have been made.
The second question arising from the circumstances of this matter is whether the third claim for compensation lodged on 25 January could in effect be constructed as a request for reconsideration of the determination of 12 February 1996. In dealing with this issue, the Tribunal noted that the Applicant's solicitor was unaware that there had been no reconsideration of the determination of 12 February 1996. It was further observed by the Tribunal that the reason for this position was the existence of documents pertaining to both the determination and reconsideration of the second claim lodged with the Applicant in relation to an aggravation of the chronic myo-skeletal syndrome. This was said to be associated with the removal of the chair on 30 November 1998. In both the documents, namely the letter detailing the determination of the second claim dated 23 December 1998 and the letter detailing the reconsideration of this same claim of 7 May 1999, the Respondent specifically states that reconsideration of the determination of 12 February 1996 (the first claim) was undertaken and notified to the Applicant on 29 August 1996.
The Tribunal, while noting that a more detailed reading of the material in this matter reveals that no deliberate consideration of the first claim was even undertaken, turns to a consideration of the third claim and a decision as to whether or not the third claim could be considered as a request for reconsideration of the first claim. The third claim is observed by the Tribunal to be an all encompassing claim, with the first and second elements clearly related to the first and second claims (albeit with a different nomination of injury in the second element). The third element seeks to introduce a new injury (stress, anxiety and depression) associated with different and mostly later factual circumstances of causation. The Tribunal notes the reasons for the third claim as stated by the Applicant's solicitor, namely an attempt to deal with circumstances where there has been an evolution of the disabilities claimed in the early claims associated with aggravation and the occurrence of new circumstances and conditions, which indeed may have played a part in the earlier claims.
The Tribunal, in reconsidering the factual content of the third claim, and the factual circumstances that brought about its creation, finds that the third claim cannot be construed as a request by the Applicant for a reconsideration of the determination of 12 February 1996 relating to the first claim. In so finding, the Tribunal has concluded that the intent of the third claim was a mechanism by which material arising from "completed" compensation processes could be relitigated, for it is clear to the Tribunal that the Applicant's solicitor was not fully aware of the earlier circumstances. In arriving at such a finding, the Tribunal notes the matter of Comcare v Willems (1996) 70 FCR 244 and follows the finding that the question of whether the third claim of 25 January 2000 was capable of coming within the category of a request for reconsideration of the determination of 12 February 1996 is a question of fact, with the Tribunal having earlier detailed such findings of fact.
The Tribunal understands that matters of claims for compensation are to be dealt with accurately and quickly pursuant to section 69(a) of the Act, and that such a function is to be guided by equity, good conscience, and the substantial merits of the case. However in regard to the technicalities in subsection 72(a) of the Act, the Tribunal, where it seeks to use the deeming power contained within subsection 25(5) of the AAT Act, must pay particular attention to all the relevant circumstances including understanding the circumstances for why the normal processes detailed in an act were not acted upon to progress the matter to its conclusion. In the matter at hand, the Tribunal has considered the factual circumstances and has found that neither an effective request for reconsideration had been sustained (lodged and effectively withdrawn) nor had further activity undertaken by the Applicant or solicitors acting on her behalf created a situation whereby lodgement of material could be considered to be construed as a request for reconsideration of the decision of 12 February 1996, particularly where the Applicant has stated that the decision to not further progress the claim was her decision.
As a consequence of the Tribunal's consideration and findings that there has not been a request for reconsideration of the determination of 12 February 1996 (the first claim), the Tribunal finds, pursuant to subsection 60 of the Act, that it does have jurisdiction to consider this matter, for there does not exist a reviewable decision in relation to the first claim of 9 October 1995.
In turning to the issue of an extension of time to lodge an appeal to the Administrative Appeals Tribunal in relation to the claims for compensation dated 9 October 1995 and 7 December 1998, the former claim can only be considered if error is found to exist in the Tribunal's finding of want of jurisdiction. The second claim is based on aggravation of injuries listed in the first claim.
In dealing with such a request the Tribunal had its attention drawn to the matters of Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and the Environment (1984) 7 ALD 315 and Gallo v Dawson (1990) 93 ALR 479. As a consequence the Tribunal will deal with each of the following principles:
(a) firstly the Tribunal observes that the granting of an extension of time is not automatic, with the understanding that reason for procedural time rules is to ensure that parties are subject to a fair and equitable resolution of their matter. Any extension of time must ensure that a fair and acceptable explanation of delay is given, and that a fair and equitable resolution can be sustained upon granting the extension of time. It was further stated in Gallo v Dawson (supra) that:
"…
The discretion to extend time is given for the sole purpose of enabling the Court of Justice to do justice between the parties.
…
This means that the discretion can only be exercised in favour of the Applicant upon proof that strict compliance with the rules will work an injustice upon the Applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time…When the application is for extension of time in which to file an appeal it is always necessary to consider the prospects of the Applicant succeeding in the appeal…It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has a "vested right to retain the judgement" unless the application is granted…It follows that before an Applicant can succeed in this application, there must be material upon which it can be satisfied that to refuse this application would constitute a major injustice.
…"
(b) in relation to an explanation for delay of the applicant, the Tribunal notes that, in effect, none has been proffered. The reason given by the Applicant's solicitor relates more to the conduct of managing the issues contained within the third claim, and that in essence it would allow all matters to come before the Tribunal;
(c) in considering the conduct of the parties the Tribunal observes that on both occasions, namely in relation to claims one and two, the Applicant made the decision not to further progress the matter in August of 1997 for claim one and May of 1999 for claim two. Particularly in relation to claim one the Tribunal notes that there is much evidence to confirm that the Respondent did much to facilitate the claim consideration and processes in both claims;
(d) in dealing with the nature of the two claims, the Tribunal notes the lack of a defined incident in either of the claims, with that of 9 October 1995 relating to an activity on 4 July 1995, an occurrence of symptomology and a gradual increase and extension of that symptomology. The claim of December 1998 related to the removal of a chair;
(e) The medical evidence contained within the section 37 Documents for both claims is not persuasive, in the Tribunal's view, that either claim is based on solid foundations. There are particular issues arising of inconsistency between the Applicant's complaints of symptomology, examination findings and aspects of causation; and
(f) the Tribunal respects the Respondent's position that difficulties in obtaining particular evidence and witnesses may well be experienced in regard to the two earlier claims being examined anew and that in this regard they would be placed at a disadvantage.
The Tribunal, having considered the matters of principal concern, and while noting the nature and form of the litigation finds that an extension of time for the first two claims requested by the Applicant should not be granted for the following reasons:
(a) that the situation requiring request for an extension of time has arisen solely as a result of the Applicant's conduct – namely a decision not to proceed further with either claim made at a relevant time and for a number of financial and personal reasons, nominated earlier in this decision;
(b) that no reason for the delay in seeking an extension of time has been given, with that reason given to the Tribunal, for seeking such an extension relating to the conduct of a new claim for compensation, and assisting in its structure and content;
(c) that the conduct of the Respondent has not been an issue in this matter, with the Tribunal already observing that the Respondent has facilitated the processing of both claims diligently and flexibly;
(d) that the Respondent would be prejudiced in terms of evidence collation and witness identification if both claims were to be further litigated;
(e) that the Tribunal's assessment of the Applicant's likelihood of success with both claims is minimalist in view of the nature, content and medical assessments contained within the material before the Tribunal;
(f) that in the Applicant's current claim, the third element (stress, anxiety and depression) is said to arise from the conduct of decisions and activities arising from the workplace. Undoubtedly if such a claim is pursued, evidentiary issues will surround the activities and decisions of the two managers nominated by the Applicant, and her conditions of stress, anxiety and depression will be the subject of appropriate medical opinion. Indeed there may be evidence adduced of earlier manifestations of particular behaviour towards the Applicant in the workplace. However in the Tribunal's view the third element of the claim of 25 January 2000 can be the subject of a discrete claim, without association to the earlier two claims, provided that there is evidence available to support the Applicant's contentions.

Determination

The Tribunal determines that:
(a) the Tribunal does not have jurisdiction to consider an application for an extension of time in relation to the claim of 9 October 1995 (the first claim); and
(b) the Tribunal does not grant an extension of time for the Applicant to make an application to the Administrative Appeals Tribunal for review of the second claim for compensation dated 7 December 1998; and
(c) in the event that jurisdiction was found to exist in relation to the claim of 9 October 1995, the Tribunal would not grant an extension of time for the Applicant to make an application to the Administrative Tribunal for review of the first claim for compensation dated 9 October 1995

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of DR J D CAMPBELL
Signed:         .....................................................................................
  Associate
Date of Hearing  11 August 2000
Date of Decision                  20 December 2000
Representative for the Applicant              Mr Hassett
Representative for the Respondent        Mr Elliot