Agar v Australian Postal Corporation

[1998] FCA 1428

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW – application for review of decision of Administrative Appeals Tribunal refusing to grant an extension of time in which to lodge appeal – decision made to terminate compensation payments – application sought to be made two years later to review decision - whether Tribunal erred in rejecting applicant’s explanation for delay – whether Tribunal misconceived its task in only considering evidence relevant to the statutory limitation period.

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Hunter Valley Developments v Cohen (1984) 3 FCR 344

Re Commonwealth Scientific and Industrial Research Organisation and Barbara (1987) 6 AAR 300
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
A’Hearn v Comcare (1993) 18 AAR 22

NEERA AGAR v AUSTRALIAN POSTAL CORPORATION

NG 512 of 1998

MOORE J
11 NOVEMBER 1998
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 512  of   1998

BETWEEN:	NEERA AGAR APPLICANT
AND:	AUSTRALIAN POSTAL CORPORATION RESPONDENT
JUDGE:		MOORE J
DATE OF ORDER:		11 NOVEMBER 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The decision of the Tribunal is set aside

2. The matter is remitted to the Tribunal for further consideration according to law

3. The respondent pay the applicant’s costs

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 512 of 1998

BETWEEN:	NEERA AGAR APPLICANT
AND:	AUSTRALIAN POSTAL CORPORATION RESPONDENT

JUDGE:	MOORE J
DATE:	11 NOVEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (“the Act”) against a decision of the Administrative Appeals Tribunal (“the Tribunal”) refusing to grant an extension of time to the applicant, Mrs Neera Agar, in which to lodge an application for review to the Tribunal. The substantive application to the Tribunal sought review of a decision of the Australian Postal Corporation (“the Corporation”) to cease making compensation payments to the applicant in relation to injuries sustained while employed by the Corporation.

Background facts

The applicant is 51 years of age and commenced work with the Corporation 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 Corporation accepted the applicant’s claim for compensation arising from the injury and compensation payments were made for the following 2 years.  On 20 June 1995 the Corporation 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 Corporation would no longer be liable to pay compensation for her claim.  The Corporation’s 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 compensable condition had ceased.  By letter dated 10 July 1995 the applicant sought a reconsideration of the 20 June 1995 decision.  On 30 November 1995 the Corporation 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 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 (“the Compensation Act”), and s 65(4) of that Act provides that s 29(2) of the 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 Tribunal’s decision

In its decision of 7 May 1998 the Tribunal refused to grant an extension of time under s 29(7) of the Act. In deciding whether to exercise its discretion to extend time the Tribunal stated that it was appropriate to have regard to principles set out by Wilcox J in Hunter Valley Developments v Cohen (1984) 3 FCR 344 (“Cohen’s case”) which are intended to be a guide (although not exhaustive) to the exercise of such a discretion.  The Tribunal set out those principles, as summarised in Re Commonwealth Scientific and Industrial Research Organisation and Barbara (1987) 6 AAR 300 at 301-302, as follows:

• It is a pre-condition to the exercise of the discretion 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

• Action taken by the applicant which makes the decision-maker (and presumably also the other party to the decision) aware that he contests the finality of the decision is relevant.  If the applicant has “rested on his rights” this may operate against the exercise of the discretion

• Prejudice to the respondent is a material factor militating against the grant of an extension

• 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

• The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted

• Consideration of fairness as between the applicant and other persons in a like position are relevant.

The Tribunal noted that an applicant for an extension of time must ensure that there is evidence before the Tribunal indicating why time should be extended.  While the Tribunal must be satisfied that it is proper to extend time, an applicant does not bear a legal onus of proof.  The Tribunal also noted that following the Full Federal Court decision of Comcare v A’Hearn (1993) 45 FCR 441, there is no rule that an acceptable explanation of the delay must be given as an essential precondition for success, but rather such an explanation will normally be given and is a relevant matter for consideration. Additionally, the Tribunal noted that its obligation to consider the prospects for success of an applicant’s substantive application did not require a full-scale examination of the merits of the application.

In evaluating the applicant’s claim, the Tribunal considered each of the Cohen principles, commencing with a discussion of the applicant’s explanation for the delay in bringing the application for review.  In its reasons for decision the Tribunal set out the grounds upon which the applicant had sought an extension of time.  The third ground was in the following terms:

(c)The Applicant alleges that she did not seek a review of the decision by the Tribunal within the relevant time limit as at that time she had not been forced to take significant periods off work.  However after the decision of the Reconsiderations Sections, she has continued to suffer aggravations and exacerbations of her ankle injury and has additionally suffered anxiety and depression as a result of the management at her workplace.  As a result of the subsequent events, the Applicant has taken substantial periods of time off work.

The applicant gave oral and affidavit evidence to the Tribunal on this issue.  The relevant paragraphs of the applicant’s affidavit addressing the question of an explanation for delay included the following:

48.I informed the Tribunal that I originally did not make it in 60 days, as the condition up to that point hadn’t caused me to lose significant periods of time off work, and I did not foresee that the condition would deteriorate to the point where it appears now I have to undergo an operation to the right ankle by my now treating vascular surgeon, Dr Lane.

The applicant also gave oral evidence which, relevantly, included the following:

The tribunal today needs to have an explanation from yourself as to why you did not apply within the 60 days and you basically have not applied up until the beginning of this year for compensation or a reversal of that decision? …Because at that time the picture was not very clear that …[indistinct] … was there but – and the union representative was with me and so they all – because the doctor says that may be the appeal of the decision might get better.  It might improve.  So I thought it’s not because I didn’t find strong evidence at the time – whatever I had I had given to them.  It was not convincing enough and the union rep also was told that maybe we don’t have much to go ahead with that one.  So I thought maybe the situation would settle down so I don’t have to worry about – I couldn’t afford to go without much evidence to go to see the lawyer at the time.  And I thought I will be able to manage it – with the pain.  At that time it was only small pain – it was pain which was causing a little problem.

[After it was established that the witness’s evidence was being heard she continued.]

So I – because doctor take – most especially said that maybe over that period it will settle down, situation might settle down or the situation was still there.  But this only when it became – I couldn’t stop – I couldn’t even get a proper – and when the situation became worse I didn’t have any option because I went to union people.  I asked that my doctor …[indistinct] …some condition which helped me not to – to help me with my injury not to get worse than what they were.  So I had to come back to work but they said: “Dr Goldie has said there is nothing wrong with you.  So whatever your doctor is saying now it doesn’t have no relevance.”  So that’s why from Dr Goldie point of view I was fit to go back to work.  So it just kept on going on and off and I thought if I apply they’ll say I’m applying only because I want money or something like that.  I said:  “I’ll keep on going til I –” when there was no other option.  I asked union people to come and help me with work situation.  In the end they couldn’t help me either.  John Dellory and Bob Collins, they both has been involved with the whole situation.

The applicant then gave evidence about the medical assessments that have been made of her since 1996 which included a remark by the applicant that:

It’s only now since – in the end of last year that things are becoming more clear what’s happening because that’s why I couldn’t …

This evidence was given on 27 April 1998.  The applicant was not cross-examined because counsel for the Corporation understood a concession had been made that any medical examination of the applicant on behalf of the Corporation since the termination of the payments of compensation was in relation to her fitness for work rather than any compensation claimed.

In its reasons for decision the Tribunal said the following about the explanation given by the applicant for the delay:

27.With respect to the grounds relied upon in support of the application for extension of time, the only ground relevant to the question of why Mrs Agar did not seek a review by the Tribunal within the specified time limit is in ground (c).  That ground appears to assert that the reason she did not seek review by the Tribunal was that, during the 60 day time limit, she was not forced to take significant periods of time off work, whereas since then she has suffered aggravations and exacerbations to her ankle and, additionally, has developed anxiety and depression as a result of management at her workplace.

28.Although Mrs Agar has made the assertion to which I have referred, it is apparent from her affidavit, however, that both prior to and after she was notified of the reviewable decision her ankle was causing her a degree of difficulty.  While she may not have had to take significant periods of time off during the period she had in which to make application to this Tribunal for review, there were nevertheless occasions when she was in fact off work.  And because it must have been apparent to her that her ankle continued to cause her difficulties, I find that the explanation which she has offered is not an acceptable explanation of the delay.

In assessing possible prejudice to the Corporation if time for review was extended, the Tribunal noted the applicant’s affidavit evidence that she had developed a psychiatric condition associated with her physical problems.  The Tribunal accepted the Corporation’s submission that it was prejudiced because had the applicant made it known that the reviewable decision was disputed and that the psychiatric condition was to be added to the claim, action would have been taken to obtain statements from witnesses and arrangements made for medical examinations to be been conducted.  The Tribunal also accepted the Corporation’s submission that it was prejudiced in relation to this because the prospect of obtaining relevant contemporary medical and other evidence diminishes with time, as well as a likelihood that records may have become lost or destroyed, or relevant information forgotten by witnesses.  Citing the reasoning of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (“Brisbane South”) on the rationale for limitation periods and the importance of finality of decisions, the Tribunal concluded that prejudice to the Corporation would arise if the applicant was granted an extension of time in which to lodge an application for review.  It formed the view that the applicant had effectively “rested on her rights” by not notifying any person within the Corporation that she intended to contest the reviewable decision of 30 November 1995.

The Tribunal delivered an “open finding” on the issue of the substantive merits of the applicant’s case on the basis that there was a paucity of evidence before the Tribunal upon which to make a finding on this issue.  The Tribunal noted that the applicant’s affidavit evidence referred mainly to her medical position as it stood after the expiry of the 60 day period, and that the content of the material relating to the applicant’s medical position during the 60 day period did “not assist in determining the merits of Mrs Agar’s application for review”.  On the final issue of fairness as between the applicant and other persons in a like position, the Tribunal held that the grounds relied upon by the applicant were not sufficient to grant her application.  This conclusion followed from a finding that “persons in a like position” meant “persons who have applied within the limitation period prescribed to have their reviewable decision reviewed”.

Submissions

The question of law formulated by the applicant on appeal was whether the Tribunal erred at law in the exercise of its discretion to extend time to bring an application for review.  Counsel for the applicant identified several bases on which errors of law could be discerned in the Tribunal’s treatment of the factors enumerated in Cohen’s case.  However the applicant accepted as did the Corporation, that while Cohen’s case sets out broad principles by which a Tribunal should be guided, the list is not conclusive.  The following are the errors that were said by the applicant to be evident in the Tribunal’s reasons.  I also set out the Corporation’s response to them.

(i) Explanation for delay

The first submission of the applicant related to the Tribunal’s treatment of her explanation for delay in bringing the application for review.  Counsel for the applicant submitted that the Tribunal’s finding that the applicant’s explanation was “not acceptable” disclosed an error of law because an explanation capable of acceptance had been given.  The Tribunal’s task was therefore to assess the adequacy of that explanation and to then rule on whether it was “fair and equitable in the circumstances to extend time”.  The import of the applicant’s evidence was that she had not brought an application for review within the 60 day statutory limit for a number of reasons.  The first was that she had not had to take extensive periods of time off work during that time, and that her medical treatment had been paid up until that point.  She also stated that she was, at the time, hopeful that the condition would improve and did not foresee that it would deteriorate to the extent it did. 

In its reasons for decision quoted earlier the Tribunal said that this was not an acceptable explanation on the basis of its finding that both prior to and after the applicant was notified of the reviewable decision her ankle was causing her a degree of difficulty and that there were occasions when she was in fact off work.  The Tribunal therefore concluded that “it must have been apparent to her that her ankle continued to cause her difficulties”.  Counsel for the applicant submitted that the applicant gave no evidence to support the finding that her ankle caused difficulties within the 60 day period or that she was off work during that time.  However even if these findings were accepted as correct, the applicant submitted that they did not amount to a reason for rejecting the explanation for delay as unacceptable.  Some degree of pain and some days off, it was argued, is not inconsistent with the applicant’s explanation as to why she did not commence proceedings in the Tribunal within the 60 day period.

A further submission was made by the applicant in relation to this issue.  This was that the Tribunal’s conclusion that the explanation for delay was not acceptable related only to delay in not having brought proceedings within the 60 day period.  The Tribunal did not consider any explanation for delay given for the whole period, that is, the two years leading up to the lodgment of the application in January 1998.  The applicant had given evidence that the delay after the 60 day period could be explained by a desire to continue working, a hostile working environment where her employer did not believe that she had any incapacity, and confusion in her mind as to the cause of her problems until the end of 1997 (when it became apparent to the applicant that her condition had deteriorated to the point of requiring surgery).  The Tribunal had accepted that since the expiry of the 60 day period “she has suffered aggravations and exacerbations to her ankle and, additionally, has developed anxiety and depressions as a result of management at her workplace”.  However these aspects of her explanation were not considered because they did not relate to the 60 day period upon which the Tribunal focussed, even though medical evidence was available in relation to them.  The applicant therefore submitted that the Tribunal’s failure to consider all evidence in explanation of the delay for the whole period, not just the 60 day statutory limit, was an error of law.

The Corporation submitted in reply that a person with a latent injury will have a much stronger case for an extension of time than someone who has been aware of a problem all along and belatedly seeks an extension of time.  Counsel for the Corporation submitted that at no point in her affidavit did the applicant state that the symptoms in her ankle went away.  There was ample evidence to found the Tribunal’s conclusion that it must have been apparent to the applicant that her ankle continued to cause difficulties, and numerous paragraphs of her affidavit evidence supported this finding.

(ii) Contesting the finality of the decision

Counsel for the applicant submitted that an error of law was also demonstrated in the Tribunal’s conclusion that the applicant had effectively “rested on her rights” by not notifying any person within the Corporation of her intention to contest the reviewable decision.  Counsel contended that there could be no doubt that the Corporation was aware the applicant contested the finality of the decision as a meeting had been held with a reconsideration officer and she continued to have absences from work.  She had also notified a regional manager that the working environment at North Sydney was injurious to her, and further, had been sent to doctors by the Corporation for assessment of her fitness to work.  Medical evidence had been available to the Tribunal which established that the applicant’s condition was continuing, and included recommendations that she be placed on restricted duties.  The Tribunal noted that the applicant had given evidence regarding the meeting with the regional manager, and in regard to a confrontation had with the Acting Area Manager over the amount of time she was having off work.  However, as these events occurred in 1996, it would appear that the Tribunal did not consider them relevant to the 60 day period, nor did it interpret them as constituting a means of “notification” with respect to contesting the decision.

The applicant submitted that the Tribunal looked upon the issue of notification and the concept of “decision-maker” in too narrow a sense.  Counsel submitted that when construing beneficial legislation, it was inappropriate to approach the concept of decision-maker in a restrictive manner.  Rather, a general awareness of personnel in the Corporation of the applicant’s continuing condition was sufficient to create a knowledge that the applicant was contesting the finality of the decision.  This was particularly so given that the Corporation itself had sent the applicant to three doctors after the decision to cease compensation payments.  In relation to this issue, counsel for the applicant sought to tender fresh evidence to the court that was not before the Tribunal detailing ongoing correspondence between medical experts and the Corporation with respect to the applicant’s condition.  Counsel for the Corporation opposed the tender.  I did not rule on the admissibility of this evidence at the hearing.  It is unnecessary to do so now, for reasons I will explain shortly.

The Corporation’s submissions on the issue of contesting the decision focused on its entitlement to act on the basis that the issue had been finalised.  Counsel emphasised that there was no correspondence between the applicant and the Corporation that stated any intention to contest the reviewable decision, and there was no evidence demonstrating to whom the correspondence from the medical experts had been sent.  The Corporation put in issue the applicant’s contention that a general awareness of various personnel at the Corporation was sufficient.  Rather, the applicant’s failure to notify the actual “decision-maker” of the 30 November 1995 decision was sufficient for the Tribunal to conclude that she had “rested on her rights”.

(iii) Prejudice to the Corporation

As earlier noted, the Tribunal accepted the Corporation’s submission that it was prejudiced by the two year delay in the bringing of the review application.  The applicant submitted however that these findings relied too heavily on irrelevant information.  That is, they were based on the idea of prejudice arising against the Corporation because it had not been expressly informed that the decision was being contested.  Prejudice was also said to result from the Corporation not having been informed that a psychiatric condition was being added to the claim with the result that it was denied the opportunity to make inquiries and to seek relevant evidence.  Counsel submitted that there was no relevant claim for compensation arising out of a psychiatric condition before the Tribunal, and therefore the Corporation could not claim to suffer prejudice in relation to this.  Further, the Tribunal’s acceptance of the likelihood that relevant medical records had gone missing or been destroyed was also erroneous, as numerous medical reports had been supplied to and obtained by the Corporation.  It could not be said that the prospect of obtaining contemporary medical evidence had diminished.  The applicant thus submitted that the Tribunal erred in its consideration of this issue.

In reply, the Corporation submitted that the approach taken by the Tribunal in its assessment of the principles relevant to prejudice as outlined by McHugh J in Brisbane South was appropriate.  Counsel stated that the Tribunal correctly referred to the general type of prejudice that the respondent may face, an issue which flowed inferentially from the two year delay itself.

(iv) Merits of the application for review

The applicant submitted that the Tribunal had erred in delivering an “open finding” on this issue given that numerous medical reports relating to Mrs Agar’s condition were tendered.  Although the Tribunal was correct in appreciating that it was not necessary for it to reach a definitive finding on the merits of the application, it erred in not taking into account relevant matters set out in the medical reports which clearly showed that the applicant’s ongoing pain was related to the injury of September 1993.  Counsel submitted that, when the sum of the applicant’s evidence and the medical evidence was considered, it was clear that the application would have a “real chance of success”.  The Corporation submitted in reply that an “open finding” was entirely justified given the limited relevant information before the Tribunal.

(v) Fairness

The applicant submitted that, in light of Cohen’s case, it is clear that the principle of fairness only arises to be considered where similar applications in similar incidents have been identified.  The principle of fairness had no relevance to this application because no employees with applications arising out of similar incidents to those complained of by the applicant were or could be identified.  The Tribunal was in error in finding that “other persons in a like position” relevant to the issue of fairness were “persons who have applied within the limitation period prescribed to have their reviewable decision reviewed”.

The Corporation put in issue this contention, and submitted that there is no principle of law that “fairness only arises to be considered where similar applications in similar incidents have been identified”.  The Corporation submitted that issues of fairness plainly arise for the Tribunal in the consideration of applications for extension of time generally, so as to avoid arbitrary or inconsistent outcomes in the way the discretion is exercised and claims determined.  The Tribunal’s finding on fairness given the two year delay in bringing the application was correct.

Conclusions

I will deal firstly with the issue of the admission of fresh evidence. It is generally accepted that in an appeal under s 44 of the Act the matter proceeds on the footing that the decision of the Tribunal is final on questions of fact. Fresh evidence cannot be adduced in the Court to contradict a finding of fact made by the Tribunal. As noted by Franki J (Brennan J agreeing) in Committee of Direction of Fruit Marketing v Australian Postal Commission (1979) 25 ALR 221 at 227, that while not wishing to formulate a general rule, “it seems that only in the most unusual circumstances, if at all, would this court be justified in admitting fresh evidence”. A more emphatic approach excluding evidence was taken by Spender J in Servos v Repatriation Commission (1995) 56 FCR 377: but cf. Ragogo v Minister for Immigration and Ethnic Affairs (1995) 59 FCR 489 and Nilufer Demir v Minister for Immigration and Multicultural Affairs (unreported, Ryan J, 19 October 1998).  The fresh evidence in question in this case relates to medical reports and other material concerning the applicant’s ongoing condition, adduced to refute the Tribunal’s finding and the Corporation’s submission that the Corporation was not aware at any stage that the applicant was contesting the finality of the decision to cease compensation.  It is unnecessary to rule on its admissibility given that I accept the applicant’s submission that the Tribunal’s evaluation of the applicant’s claims by reference only to evidence relating to the 60 day limitation period was too restrictive an approach and one which discloses an error of law.

My reasons for this conclusion are as follows.  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 general 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 A’Hearn v Comcare (1993) 18 AAR 22 at 27:

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 …

I earlier set out paragraphs 27 and 28 of the Tribunal’s reasons for decision.  It is relatively clear that in paragraph 27 the Tribunal was under the impression that the case of the applicant was being put on the footing that an adequate explanation existed as to why the applicant had not lodged an application for review during the 60 day time limit.  That is, the Tribunal perceived the issue as one concerning why, in that period, the applicant had not acted.  That this was the approach of the Tribunal is confirmed by much of what appears in paragraph 28.  All but the last sentence of that paragraph is directed to the extent to which the applicant’s ankle was causing her problems during the 60 day period.  The only possible reference to circumstances outside that period was the reference to “… her ankle continued to cause her difficulties …”.  However, in context, this appears to be a continuation of a consideration of the problems the Tribunal believed the applicant had experienced during that period.  Thus, on a fair reading of the Tribunal’s reasons, it has considered the adequacy of the applicant’s explanation only as it relates to the 60 day period in which the application for review should have been lodged.

However the applicant’s case was not put on such a narrow footing.  In approaching this issue in the way it did, the Tribunal ignored the applicant’s explanation, and its adequacy, in so far as it related to the remainder of the period of almost two years in which she failed to act by not lodging an application for review.  This approach, in my opinion, fundamentally misconceives the task the Tribunal must undertake.  Its task is essentially a balancing exercise the focus of which is the period of time that has elapsed since the cause of action arose and, in particular, since the expiry of the time limit.  What must be balanced is the consequences of the time having elapsed and why it has elapsed.  The balancing exercise would ordinarily involve a consideration of the impact on the interests of the affected parties of a decision to extend, or to refuse to extend, time.  The explanation given by an applicant for an extension of time as to why an application was not brought earlier might be a particularly compelling one.  In that circumstance the decision maker might conclude that the balance favoured the extension of time even though the adverse effect on the other party was a material one.  If, on the other hand, the explanation was not a compelling one then the decision maker might conclude that even some minor adverse effect on the other party justified the extension of time being refused.  This balancing exercise was not undertaken by the Tribunal in the present case.  Its approach involved, in my opinion, a miscarriage of its discretion.

The Tribunal should have considered all of the evidence in relation to the applicant’s explanation for delay for the whole period leading up to the application for an extension of time.  Failure to do so meant that the Tribunal did not properly assess other issues relevant to the exercise of its discretion, such as the merits of the application and possible prejudice to the respondent.  This approach gives rise to an error of law that warrants the Tribunal’s decision being set aside and the remission of the matter to the Tribunal for consideration according to law.  It is unnecessary to make findings on the other grounds for review advanced by the applicant.  However I will make the following brief observations in relation to one of them.

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.  One submission of the Corporation was that for this issue to be resolved in the applicant’s favour in the present case it would have been necessary for her to have notified the person who made the decision of 30 November 1995 which she now seeks to challenge.  Such an approach, in my opinion, is plainly too narrow.  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 her 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 the notice identified in the Workplace Injury Management and Workers’ Compensation Act 1998 (NSW) which provides in s 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 s 53 of that Act must ordinarily be in writing.

I set aside the decision of the Tribunal.  The matter is remitted to the Tribunal for further consideration according to law.  I also order that the Corporation pay the applicant’s costs.

I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore

Associate:

Dated:             11 November 1998

Counsel for the Applicant:	A Tudehope
Solicitor for the Applicant:	McClellands
Counsel for the Respondent:	G Elliott
Solicitor for the Respondent:	Graham Jones
Date of Hearing:	8 September 1998
Date of Judgment:	11 November 1998