Agar and Australian Postal Corporation - [2000] AATA 1074

DECISION AND REASONS FOR DECISION [2000] AATA 1074

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1741

GENERAL ADMINISTRATIVE DIVISION          )
           Re      NEERA AGAR
  Applicant

And AUSTRALIAN POSTAL CORPORATION
Respondent

DECISION

Tribunal The Hon Mr R N J Purvis, QC, Deputy President

Date7 December 2000
PlaceSydney

Decision Leave is granted to the Applicant to lodge an application for review of the Respondent's decision of 20 November 1995, the same to be so lodged within 28 days of the publication of this decision. No order as to costs.

……………………..
R N J Purvis
Deputy President
CATCHWORDS
COMPENSATION – extension of time – approximately two years out of time – whether acceptable explanation of delay – whether fair and equitable in the circumstances to extend time – whether action taken by applicant which makes the decision-maker aware that applicant contests the finality of the decision is relevant – whether prejudice to the respondent – whether unsettling of established practices – merits of the substantial application – consideration of fairness between applicant and other persons in a like position – evidence – state of mind and belief of the applicant – intent to seek review

Administrative Appeals Tribunal Act 1975

Hunter Valley Developments v Cohen (1984) 3 FCR 344
Re Commonwealth Scientific and Industrial Research Organisation and Barbara (1987) 6 AAR 300
Agar v Australian Postal Corporation (1998) 56 ALD 361
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Comcare v A'Hearn (1993) 45 FCR 441
Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42

REASONS FOR DECISION

The Application:

This is an application by Mrs Neera Agar ("the Applicant") by which she seeks leave pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 for extension of time to bring a substantive application before the Tribunal. By the latter application she would ask that a review be had of a decision of a delegate of the Australian Postal Corporation ("the Respondent") terminating compensation payments to her in relation to injuries sustained while employed by the Respondent. The extension of time application came before the Tribunal in 1998 when on 7 May 1998 the application was refused. On appeal to the Federal Court the then decision of the Tribunal was set aside, the matter being remitted for further consideration according to law.
The injury and termination of compensation payments:
As succinctly put by the Federal Court in its reasons for decision on the appeal:
"The Applicant is 51 years of age and commenced work with [the Respondent] as a postal services officer in April 1992. While performing a task at the North Sydney post office on 7 September 1993, the Applicant caught her right foot between two milk crates causing her to fall on her back and injure her right ankle. The [Respondent] accepted the Applicant's claim for compensation arising from the injury and compensation payments were made for the following two years. On 20 June 1995 the [Respondent] wrote to the Applicant notifying her that her entitlement to continuing compensation "in respect of sprained ankle and left neck muscle strain" had been reviewed and that effective 16 May 1995 the [Respondent] would no longer be liable to pay compensation for her claim. The [Respondent] decision was based on a medical report dated 16 May 1995 which stated that the relevant injury appeared to be improving and the minimal level of remaining impairment suggested that the effects of the compensible condition had ceased. By letter dated 10 July 1995 the Applicant sought a reconsideration of the decision of 20 June 1995. On 30 November 1995 [the Respondent] advised that the decision had been reconsidered and that the reconsideration officer was not satisfied that there was sufficient evidence to indicate that the [Corporation] had continuing liability to pay compensation in respect of the Applicant's condition. On 23 January 1998 the Applicant applied to the Tribunal for an extension of time in which to lodge an application for review of the decision of 30 November 1995.
Subsection 29(2) of the Administrative Appeals Act prescribes the time limit for bringing an application for review of a reviewable decision to the Tribunal as 28 days from the date written reasons of the decision were received. However the compensation payments made to the Applicant were governed by the Safety, Rehabilitation and Compensation Act 1988…and section 65(4) of that Act provides that section 29(2) of the [Administrative Appeals Tribunal] Act has effect as if the reference to 28 days is a reference to 60 days. The Applicant's proposed application for review would thus be of the order of two years out of time."

The Hearing:

At the hearing of the application for extension of time the Applicant was represented by Mr A Tudehope of Counsel, the Respondent by Ms R Henderson of Counsel.
There was tendered in evidence the following documents:

Exhibit No.   Description Date
A        Ms Agar's Affidavit (unsworn) 51 paragraphs     24 April 1998
B        Bundle of documents re the Applicant
C        Reconsideration of decision of 20 June 1995 by Australian Postal Corporation     30 November 1995
D        Application for leave and handwritten document          22 December 1995
E        Bundle of documents re the Applicant
F         Claim for rehabilitation and compensation         10 October 1997
G        Affidavit of Karl Foster and sworn statement of the Applicant 19 October 2000        22 January 1997 respectively

The Applicant gave oral evidence upon which she was cross examined.

Factors relevant to exercise of discretion:

Whilst prima facie proceedings commenced outside of the prescribed period will not be entertained, the factors to which the Tribunal is to have regard in exercising its discretion to extend time are as detailed by the Federal Court in Hunter Valley Developments v Cohen (1984) 3 FCR 344, summarised in Re Commonwealth Scientific and Industrial Research Organisation and Barbara (1987) 6 AAR 300 at 301-302, and qualified by observations in Comcare v A'Hearn (1993) 45 FCR 441 at 444. Consideration was also given to them in Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42. They are as so summarised and qualified :
(1)The Applicant for extension should show an acceptable explanation of the delay and that it is fair and equitable in the circumstances to extend time.
(2) Action taken by the applicant which makes the decision-maker (and presumably also the other party to the decision) aware that he/she contests the finality of the decision is relevant. If the applicant has rested on his/her rights this may operate against the exercise of the discretion.
(3) Prejudice to the respondent is a material factor militating against the grant of an extension.
(4) The mere absence of prejudice is not enough to justify the grant of an extension. A delay which may result 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) Consideration of fairness as between the applicant and other persons in a like position is relevant.

The applicant for extension of time should ensure that there is evidence indicating why time should be extended and the Tribunal is to be satisfied that it is proper so to extend time. The explanation for a delay is a matter relevant for consideration as is a consideration of the prospects of success of a substantive application. The principles enunciated above whilst a guide to the exercise of a discretion are not exhaustive.
The factual situation:
The Applicant was born in India on 21 September 1947. She came to Australia in 1967 and is now an Australian citizen. She commenced work with the Respondent as it then was in April 1992 and was employed as a postal services officer. She had previously worked in New South Wales as a schoolteacher and as a research assistant at the University of New England.
Her work with the Respondent at the North Sydney Post Office was mainly counter work. On 7 September 1993 while copying a document for a customer her right foot was caught between two crates located on the floor and she fell on her back sustaining a strain to her right ankle. She felt pain. The ankle became swollen. She was attended by a first aid officer. The following day, experiencing pain in her neck and swelling in her right ankle, she attended a clinic and was medically examined. The diagnosis was probable sprain to the ankle. She was sent for physiotherapy and certified unfit to work for one week. At the expiration of the certified period she returned to her work, her then claim for compensation being accepted by the Respondent.
Nevertheless the Applicant continued to suffer swelling and pain in her ankle. She attended a sports medicine practitioner who recommended an ultrasound and continued physiotherapy. She was certified as fit for light duties. Her work required that she stand for long periods, the same aggravating her ankle pain. She was recommended to see an orthopaedic surgeon who, in November 1993, diagnosed the injury as a sprain.
Other than by way of accompanying her husband on his sabbatical leave from his university, the Applicant remained at her work experiencing pain and taking short periods of time off when needed. The standing at work seemed to aggravate her ankle and in November 1994 she attended Dr K Slater, an orthopaedic surgeon who diagnosed nerve damage to the ankle and recommended surgery. She in the same month also saw Dr Kumar, a sports medicine practitioner who reported the continuance of the pain in her right leg and foot especially after standing for lengthy periods. Shortly thereafter she came under the care of another sports medicine practitioner, Dr Delaney, who recommended continued physiotherapy and Cortisone injection.
In May 1995 the Applicant attended the orthopaedic surgeon, Dr Slater, who reported evidence of neuralgia or neuritic symptoms in the superficial peroneal nerve and recommended that she be placed on restricted duties spending less time on her feet. The change in nature of her duties did have a beneficial effect.
The Applicant maintained her employment taking periods of time off from her work when her ankle was painful. She believed that the work environment at the North Sydney Post Office was negative, if not hostile towards her. She experienced measurable discomfort when negotiating the 15 to 20 steps at her workplace. In September 1996 the Regional Manager indicated dissatisfaction with her conduct, performance and work attendance. Almost daily after work she experienced pain. She cried and was depressed. She consulted a local general practitioner and family physician and was referred to Dr Synnott, a psychiatrist.
The Respondent had been constantly provided with copies of the health reports provided to the Applicant by her various medical practitioners. She was seen by Dr Connor, a Commonwealth Medical Officer, and in January 1997 by Dr Lambert on request of the Respondent. During 1996 and into early 1997 complaints were made by the Respondent as to the periods of time the Applicant was off work. Since 3 April 1997 the Applicant has been away from her employment.
The Applicant continued seeking medical assistance and advice, consulting Dr Crichton of the North Sydney Orthopaedic and Sports Medicine Centre, Dr Lane, vascular surgeon, Dr Garrick, neurologist and Dr O'Shea, psychiatrist. The medical reports were forwarded to the Respondent.
It was at the behest of her union representative that the Applicant first sought legal advice, this in January 1997. She was advised to seek review of the decision made by the Respondent in 1995 even though it was beyond the statutory period for seeking such relief. On 26 March 1997 the Applicant's solicitor wrote to the Reconsiderations Officer of the Respondent in relation to the "ongoing work-related incapacity" of the Applicant and informed the officer of the intent of the Applicant to apply to the Tribunal for an extension of time in which to seek review of the reconsideration decision of 30 November 1995, the latter affirming the original decision of 20 June 1995. Thereafter discussion and correspondence ensued between the Applicant's solicitor and representatives of the Respondent. On 12 November 1997 the Respondent indicated that denial of liability was being maintained and "the only advice I can give is that you lodge an application with the AAT for a review of the decision of 30 November 1995…it would be necessary for you to apply to the AAT for an extension of time…". On 10 October 1997 the Applicant made claim for rehabilitation and compensation arising from her accident, injury and disabilities.
The Applicant maintains that her condition, whilst at one time seeming to settle down had deteriorated, this compounded by depression and anxiety resulting from her injury and her perceived treatment from the Respondent. She says that at all times the Respondent has remained informed of her condition and the fact that the decision made by the delegate was not accepted by her.
State of mind and belief of the Applicant up until 30 November 1995:
The original decision of the Respondent was made on 20 June 1995. It was affirmed by a reconsideration decision of 30 November 1995. The Applicant had 60 days in which to lodge an application for review of the decision with the Administrative Appeals Tribunal. She says that she did not do so because:

she felt that her condition was stable and likely to improve;
all of her medical expenses had been paid by the Respondent to that date;
she was coping with the circumstances of her work environment;
changes to the nature of her duties had enabled her to relieve the pain in her foot;
she was not required to remain standing for as long; and
she wanted to continue working but in a workplace where there were not any further problems.

Exhibit B, a bundle of medical reports and assessments, made and given prior to November 1995 disclose that:
(a) In November 1993 an occupational physiotherapist advised the Applicant to continue with her then current duties but sit when needed and not serve at the delivery counter.

(b) In November 1994 the pain was persisting as well as a swelling, especially after standing for lengthy periods. The Applicant was advised to "push on as best she can…she is doing no harm by remaining active. Surgery should be reserved as a last resort".

(c) In December 1994, Dr Kumar, the specialist in sports medicine thought that the Applicant was suffering from nerve neuritis, the effects of which were "more likely to be temporary". A spontaneous recovery "was hoped for".

(d) In May 1995, Dr Slater reported that despite some pain the Applicant was doing no harm by remaining active. Surgery was unlikely to help and non-operative measures were unlikely to be of great assistance either. Her demands at work should be lessened and she should be placed on restricted duties. In the same month, Dr Goldie reported to the Respondent that recovery was occurring and there was then minimal impairment. It was on the basis of the latter report that the subject original decision was made.
(e) An operation was performed on 12 July 1995.
(f) In August 1995 a Commonwealth Medical Officer found no obvious deformity or swelling to her right leg. There was an area of tenderness. There was full range of movement but some pain. She was said to be fit for her normal duties.
(g) In October 1995 the senior rehabilitation counsellor of the Respondent in her report stated:
"…
With respect to the need for further rehabilitation involvement, I do not feel that this is necessary since Ms Agar has long term restrictions that simply need to be observed by her supervisors and herself and which do not prevent her from performing normal duties. This was explained to Ms Agar at our meeting and she indicated that she understood and agreed with this decision.
…"

In the same month Dr Kumar advised that a "lateral wedge would be worth trying to minimise swelling". In fact the wedge aggravated the pain.
(h) On the other hand in November 1995, Dr Crichton from the North Sydney Orthopaedic and Sports Medicine Centre stated:
"…
It is my impression that Mrs Agar is suffering superficial peroneal neuritis. I am unsure as to why this settles so well when she is resting. I have suggested she obtain an ultrasound of the superficial peroneal nerve to attempt to define any neuroma and I would also recommend nerve conduction studies. If either of these tests are positive, given the length of time this has been present, I would recommend surgical release of the nerve and possibly an anterior compartment faciotomy. I would suggest a neuro-surgical opinion may be of worth with regard to this surgery."

Dr Crichton, in a letter to the senior rehabilitation counsellor with the Respondent, enclosing a copy of a letter written by him to Dr Kumar from which the above-mentioned extract was taken stated:
"unfortunately an ultrasound has not given us any more leads as to her problem and I have arranged a nerve conduction study. She may be required to see a pain clinic. …until her investigations are completed I feel it would be appropriate that she is removed from work. On that basis I would suggest that she is unfit from today 7 November 1995 for a two week period taking her to 21 November 1995."

On the basis of the above reports and the affirmation on reconsideration of the original decision the Applicant says she believed the then condition was to be accepted and she could continue with her work in the environment as it then existed.
The period following the reconsideration to the time when notice was given to the Respondent of intent to seek review:
It is not a part of the task presently before the Tribunal for it to reach a definitive decision on the nexus between the 1993 accident and the current medical condition of the Applicant. It is germane however for it to consider the continuing medical condition, why the Applicant did not make application to the Tribunal at an earlier date and the extent to which the Respondent was kept on notice as to such medical condition and the contended nexus with the original accident.
The Tribunal has earlier set forth in these reasons the factual situation and the progression of the relevant pain, discomfort and disabilities.
Exhibit E in the proceedings was said to comprise all relevant reports and certificates extending from the expiration of the statutory time limit to the time when the application for extension of time was made. The significant aspect of the material is the continuing pain and suffering being experienced by the Applicant, the fact that she was continually seeking medical advice and that she constantly kept the Respondent informed by provision of copies of reports of her progress, of the various opinions and the likelihood of her claim for compensation being maintained and her non-acceptance of the subject decision. It is also apparent that the Respondent called upon the Applicant and her medical advisers for copies of relevant reports and sought to have the Applicant examined by its medical advisers.
It is sufficient to this end to note that relevant medical information was constantly provided to the Respondent. Originals of the following reports or copies of the reports were forwarded to it. The Respondent, as also noted, caused its own examinations to be conducted:
(a)Dr Crichton provided reports in February and April 1996, April and September 1997 and February 1998 generally recommending that the Applicant be allowed to remain sedentary in the hope that the pain would resolve. Nexus with the accident in 1993 is implicit.
(b)Dr Steel, a general practitioner, in March 1996 reported the Applicant's unfitness for work and need for physiotherapy treatment.
(c)Dr C Chen, consultant in occupational medicine, in March 1996 sought earlier medical information before conducting an examination.
(d)Medical certificates under workcover signed by Dr Delaney, his reports and reports of other medical officers of April, June, July and October 1996, February and April 1997, January and March 1998.
(e)Various of the medical practitioners made claim for payment on the Respondent.
(f)In October 1996 and January 1998 the Applicant authorised a medical services adviser retained by the Respondent to exchange medical information.
(g)Medical certificates under workcover and reports of Dr Henschke of October and November 1996, where mention was made of the continuing contentions of the Applicant and Respondent, and of the position "of the two parties" being "now deeply ingrained".
(h)Reports of Dr Lane of November 1996, July 1997 and February 1998 associating the Applicant's adverse condition with the 1993 accident.
(i)Request from the Respondent in November and December 1996 for the Applicant to be seen by a Commonwealth medical officer.
(j)Report of Dr Connor of November 1996 speaking inter alia of a "long and drawn out problem".
(k)A leave application letter from the Applicant to the Respondent in December 1996 together with a report from Dr Henschke seeking one years leave without pay stating in support:
"As you are aware since sustaining a fall whilst working in the North Sydney post office on 7 September 1993, I have suffered continuing and significant pain and swelling in my right ankle. There is now overwhelming evidence to indicate that:
Prolonged standing aggravates the condition and only long rest – ranging from weeks to months – partially relieves it."
I have been continuing with treatment for this problem while working, however with minimal success for I am neither able to do my work effectively and regularly - due to significant leg pain – nor effectively treat the condition – because of a lack of sufficient rest. As a result I have suffered physically, psychologically and financially.
In such circumstances and supported by medical advice I am thus forced to the conclusion that unless I fully concentrate on my illness (ie total rest, physiotherapy and other therapies) my injury may become irreparable. Indeed it has already worsened since it's onset three years ago.
In order to aim for such a recovery a significant period off work is necessitated.
…"
(l) Workplace assessments on behalf of the Respondent in January 1997 and a report for fitness for duty, canvassing the various issues between the parties compiled by a Commonwealth medical officer. A letter from the Respondent to the Applicant of 31 January 1997 stated:
"I refer to your claim for compensation in respect of sprained right ankle and strained left neck muscle and the enclosed account.
As previously advised by this office liability to pay compensation in relation to your claim was ceased on and from 16 May 1995 [settlement of the account is therefore your responsibility/the receipt is there for return for your records]. Please advise your doctor and other service providers that Australia Post will nor be paying for any treatment of your condition provided after 16 May 1995.
…"
(m) Dr R Garrick October 1997, detailing the history of the injury and disabilities in contemplation of operative procedure.

(n) In October 1997 the Applicant detailed in summary form the sequence of events since the accident and attached the same to her claim for compensation. The Respondent replied in November 1997 denying liability.

The Applicant's solicitor wrote to the Respondent on 26 March 1997 raising the issue as to the ankle injury in 1993. Thereafter the Respondent was informed as has already been indicated as to progress made, the subject application being lodged with the Tribunal on 24 January 1998. Further more recent reports and assessments have been obtained and provided to the Respondent.
Consideration of the relevant factors:

On the basis of the above circumstances consideration can now be given to the detailed factors relevant to an exercise by the Tribunal of its discretion.
An acceptable explanation of the delay:
The Applicant maintained that she had not lodged an application for review of the decision in time because she had not taken extensive periods of time off work, her medical treatment had been paid for up to that time and she was hopeful that the condition would improve and would not necessitate her having to apply to the Administrative Appeals Tribunal. She did not foresee that the condition would deteriorate to the point where she had to undergo operative treatment. In addition the Applicant expected that in light of the various medical reports obtained and provided to the Respondent between early 1996 and January 1998, that the Respondent would review its decision. The making of reports and information available on request, exchanging medical information, reports specifically given to Commonwealth medical officers together with the Applicant's own letters and detailed submissions as to her claim and her condition, all indicated an intent on her part to maintain her claim for compensation. Appointments were arranged with medical advisers retained by the Respondent and workplace assessments and occupational capacity assessments were made.
The Applicant submits on the basis of the above that the delay in contesting the reviewable decision is explained in terms which amount to:
(i) A desire to continue working;
(ii) Her hope that the condition would improve and it would not necessitate her having to apply to the Administrative Appeals Tribunal;
(iii) Her not foreseeing that the condition would deteriorate to the point where it would be necessary for her to undergo an operation;
(iv) Her confusion as to the duration of the problem; and
(v) An ongoing hope that the Respondent would accede to the pressure of supportive medical opinion and review it's own decision.
On behalf of the Respondent it was submitted that the Applicant was reticent in saying when she realised that her condition was not going to improve, and that any belief on her part that the Respondent would review its decision was contrary to the contents of the documentary material. The Tribunal does not accept the latter submission. The parties maintained a dialogue and the provision of medical reports. As to the former submission she was entitled to rely on the reports in reaching an assessment as to her condition.
The explanation of delay provided by the Applicant is one that the Tribunal considers it should accept. It was not put to the Applicant in the course of her cross examination that there was a lack of sincerity in requests made by her of the Respondent or that the condition of which she complained was other than real. The Tribunal accepts the reasonableness of the explanation of the delay even be it over a relatively long period of time.
Applicant making the decision maker and any other party to the decision aware that the finality of the decision was contested:
The Federal Court in it's decision in Agar v Australian Postal Corporation (1998) 56 ALD 361 at page 370 observed:

"It is to be recalled that one discretionary consideration referred to in Cohen was whether the applicant for an extension of time had contested the finality of the decision.
…
It would have been sufficient for the applicant to have notified a person in authority in the corporation that there was an issue as to whether the compensable injury continued. What might, for the purposes of considering the matters identified in Cohen, be an appropriate means of signifying to an employer that a decision is contested will doubtless vary having regard to the facts of each case. However, a useful starting point would be the nature of a notice identified in the Workplace Injury Management and Workers' Compensation Act 1998 (NSW) which provides in section 62(4):
(4) A notice of injury is taken to have been given to an employer;
(a) if it is given to any person designated for the purpose by the employer; or
(b) if it is given to any person under whose supervision the worker is employed

No similar provision exists in the Compensation Act and the notice preceding a claim required by section 53 of that act must ordinarily be in writing.
…"

It was submitted on behalf of the Applicant that the Respondent was well aware that she contested the finality of its decision. Throughout the period February 1996 to March 1998 it received medical reports from the Applicant's doctors all of which referred to an ongoing problem with her right leg. From February 1996 to March 1997 the Respondent received medical certificates which referred to the injury and certified her as unfit for work because of a diagnosis which related to that injury and her ongoing medical condition. During the period February 1996 to March 1997 the Respondent sought permission from the Applicant to confer with and if necessary obtain medical information from her treating medical experts in relation to the ongoing problems with her right ankle.
The Applicant lodged applications for leave in 1995 and 1996 seeking "compensation leave" consequent on problems with her right ankle. In October 1997 she wrote to the Respondent referring to her accident, the subject decision and evidence provided by the Respondent's own medical advisers and entreating the Respondent to reconsider it's position. "It is only because of my liking for the job and the family support that I have lasted so far".
It was submitted on behalf of the Respondent that the Applicant failed to tell "anyone at all" in the Respondent's employ "that she disputed the decision". The provision of the medical reports as earlier detailed in these reasons provides ample evidence as to the employer being put on notice and kept on notice as to the Applicant not accepting the Respondent's contention that "there was anything wrong with her." The relevant decision was to the latter effect, whereas the Applicant, per medium of the material furnished to her employer, maintained otherwise.
The Tribunal is of the opinion that the Respondent was well aware over the whole of the relevant period that the finality of its decision was contested. The acceptance by it of the reports, requests made for further information and for the Applicant herself to be examined by its medical experts is further evidence of this prerequisite being satisfied.
The merits of a substantive application:
As has already been indicated it is not necessary for the Tribunal to make a definitive assessment as to the merits of a substantive application if made by the Applicant.
Drs Crichton, Delaney, Henschke, Lane, Garrick and the Respondent's Dr Lamond all evidence continuing pain, suffering and disability and generally relate this situation to the Applicant's initial injury. Dr Crichton in his report of 2 February 1998 states:
"…
The present pain that she suffers in the hip and buttock region is related to her initial injury and represents a myofascial pain syndrome which has developed as a result of the anterior compartment pain that she was initially suffering. It is my opinion these are both of the same generation and Dr Raymond Garrick a neurologist is also supportive of that in a report to me on 3 October 1997. On that basis I would not regard this a new injury but relating to her initial claim.
Her problem is quite perplexing. It is not a common problem but my experience with Mrs Agar through this time has indicated to me that she is quite genuine with the problem and remains keen to seek a solution. She is having surgery in late February and I would be interested to see her progress six weeks after that time." (Exhibit E)

The Applicant herself in her affidavit evidence referred to her ongoing right ankle pain and the medical treatment she had sought in relation to it. The overwhelming medical evidence, submitted from the Applicant's treating medical advisers, is to the effect that she has an ongoing problem with her right ankle the origin of which is the 1993 accident.
It is the opinion of the Tribunal that there is merit in a substantive application being brought. Whether the Applicant succeeds in such an application would depend upon assessment made of the various medical opinions and reports together no doubt with updated oral evidence and cross examination upon it.
Prejudice to the Respondent:
The claim for compensation originally made by the Applicant was not contested. The denial on 30 November 1995 of liability for further compensation was made on the basis of the Respondent not being satisfied that there was sufficient evidence as to the right ankle and neck condition of the Applicant still being adversely affected following the accident. There is no other relevant evidence than that which has been provided by the Applicant and the medical advisers. Thus evidence to be tendered in any substantive application would be the evidence of the Applicant, medical advisers and documents comprising their reports and opinions. The Respondent is in possession of such reports and opinions as well as those provided by its own experts. The Respondent has been kept informed as to progress in the treatment of the Applicant and has had and has availed itself of the opportunity to have its own medical experts examine and evaluate the Applicant. Drs Connor and Lamond were so retained by the Respondent.
Whilst it is eminently correct to contend that the more time that elapses between the events to be examined and the date of the hearing, the more difficult it may be to provide meaningful evidence, this is not always the position. It is submitted in the present application that relevant records might have been lost or destroyed. There is no evidence to this effect. It is submitted that witnesses may have forgotten relevant information. There is no evidence to this effect. It is submitted that the Respondent has been denied the opportunity to have specialist medical witnesses evaluate the Applicant, yet there is no evidence to this effect.
This being a matter where liability has been admitted, medical reports have been provided and continually made available, the primary issue is as to whether the Applicant continues to suffer from the effects of her accident experienced in September 1993. The Tribunal does not discern a measurable prejudice to the Respondent in the event of she being enabled to lodge a substantive application. The Respondent has not itself adduced any evidence of prejudice.
Fairness as between the Applicant and others:
It was submitted on behalf of the Applicant that she and her medical advisers continually made the Respondent aware over the period from January 1996 to March 1998 and more recently of an ongoing condition related to her original injury in 1993. The Respondent, as has already been mentioned, carried out its own enquires as to her condition and caused her to be assessed. The Respondent contributed to the delay in the Applicant challenging the decision by accepting the reports and opinions provided to it seeking provision of additional information and having the Applicant examined by its own medical advisers. Fairness to the Applicant and the Respondent requires that even be it a relatively long period of time has elapsed, that the matter in dispute be resolved following a hearing of a substantive application. Each party has maintained its position and each party has been kept informed of any change that took place.
Fair and equitable in the circumstances to extend time:
It was stated by the Federal Court in its reasons for decision in Agar v Australian Postal Corporation (supra) at page 369 that:
"…
The scope of the operation of the Compensation Act which is beneficial legislation should not be restricted unduly. There can be no doubt that the public interest is served by the existence of limitation periods which ensure finality of decisions and the ability of individuals and organisations to arrange their affairs accordingly. However, an unduly strict approach to limitation periods of the type presently being considered and thus to the question of whether to allow applications which clearly lie outside them, can result in an unjust outcome. As was observed by Hill J in O'Hearn v Comcare (1993) 18 AAR 22 at 26:
"I should say that while it is no doubt true that public administration dictates a need for efficiency and finality, perhaps this is not a matter upon which great weight should be placed in a case involving a workers' compensation claim. However, the weight to be placed upon it is a matter for the tribunal.
…"

In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553 it was stated:
"The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometime be overwritten by the facts of an individual case. The purpose of a provision such as section 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action is to be commenced" (Solar Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 634). But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the state is best served by the limitation period in question. Accordingly when an applicant seeks an extension of time to commence an action after a limitation period has expired he or she has the positive burden of demonstrating that the justice of a case requires the extension".

It is undoubtedly in the public interest that disputes be settled as quickly as possible. However this is but one factor to be taken into consideration.
The Applicant submits that in this context her continuing challenge to the finality of the decision, the absence of prejudice to the Respondent if she be allowed to make an application seeking review of the decision of November 1995, the merit of the substantive application and the part the Respondent played in contributing to the delay dictates that it is fair and equitable in all the circumstances for time to be extended.
Decision:
It is the view of the Tribunal that having considered each of the factors precedent to the Tribunal exercising its discretion, it is appropriate in this matter for an extension of time to be granted in which the Applicant be enabled to seek review by the Tribunal of the decision of 20 November 1995. Leave is accordingly granted to the Applicant to lodge an application for review of the said decision the same to be so lodged within 28 days of the publication of this decision.
The Applicant applied for an order for costs to be made in her favour. The Tribunal is not satisfied that in the circumstances of this matter it has jurisdiction to so order. But even if it did have jurisdiction the application would be bound to fail. There was no fault on the part of the Respondent. The Applicant did not comply with the time limitation and sought an exercise of the Tribunal's discretion. It was her default that occasioned the necessity for the making of the application, an application which the Respondent was perfectly entitled to resist. There will be no order as to costs.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for the decision herein of:
The Hon Mr R N J Purvis, QC, Deputy President
Signed:         .....................................................................................
  Associate
Date of Hearing  19 October 2000
Date of Decision  6 December 2000
Counsel for the Applicant               Mr A Tudehope
Counsel for the Respondent          Ms R Henderson