AHearn, B. v Comcare

[1993] FCA 254

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIAN DISTRICT REGISTRY	)	No VG 251 of 1992
)
GENERAL DIVISION	)

ON APPEAL FROM THE GENERAL DIVISION OF THE
ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY

MR J HANDLEY, SENIOR MEMBER

BETWEEN:  BRYAN A'HEARN
Applicant

AND :	COMCARE
Respondent  2 9 APR 1993

AUSTRALIA PRINCIPAL

REGISTRV

CORAM :	HILL J
PLACE :	MELBOURNE

DATED : 16 APRIL 1993

EX TEMPORE REASONS FOR JUDGMENT

The applicant, Mr Bryan A'Hearn, appeals to this Court pursuant to the provisions of s.44 of the Administrative Ap~eals Tribunals Act (1975) (Cth) ("the AAT Act") against the decision of the Administrative Appeals Tribunal ("the

Tribunal"), constituted by a senior member, refusing Mr

not of evidence as to what happened before the Tribunal but as	to material going to explain the delay in lodging the appeal
to the Tribunal, evidence which could have been adduced before the Tribunal had those advising the applicant so desired.
Other material in the affidavit evidence went to the manner in which the Tribunal had exercised its discretion in other cases where apparently a similar problem had arisen. The appeal to this Court is an appeal "on", that is to say limited, to a question of law. Essentially this Court, in fulfilling its role of judlcial review of an administrative decision, is limited to considering the material which was before the decision-maker, in this case the Tribunal, at the time it made its decision.
The Tribunal, in exercising its function under the AAT Act, usually acts in place of the initial decision-maker. In the present case of course, it acts as the initial decision-maker, for it is determining an application to it to extend the time for appealing.
This Court is not itself the decision-maker, it cannot exercise the discretion which is conferred upon the Tribunal. It may only see whether the Tribunal has erred in law in respect of some matter relevant to its decision. It may determine whether the Tribunal has, for example, taken into account an irrelevant matter, or failed to take lnto account a relevant matter, or has otherwise misconstrued the law.
There are rare cases, of which the failure by the ~ribunal to accord natural justice is the most important, where evidence could be adduced in this Court in support of an attack upon the Tribunal's reasons, but that evidence would be limited to what actually took place before the Tribunal. That exception would certainly not permit the giving of evidence which could have been given to the Tribunal but which was not, except perhaps in a class of case where a relevant question was whether there was any evidence which mlght be given in a case where the Tribunal had in fact refused to permit that evidence to be adduced.

A'Hearn's application for the extension of time for lodging an application to the Tribunal for review of a decision of the respondent.

Pursuant to directions given by Ryan J, the
applicant filed a notice of motion for leave to adduce before
me evidence not before the Tribunal. This material consisted

For these reasons I would reject the affidavit

material sought to be adduced.

I turn now to deal with the real issue between the
parties. Unfortunately, there is no transcript of the

proceedings before the Tribunal. It is unclear whether a

transcript was taken or whether no recording was made at all.	recording was originally made of the proceedings and no
In the absence of a transcript or any evidence of what occurred before the Tribunal, the Court must endeavour to deduce from the reasons for decision the way in which the case proceeded before the Tribunal.
The applicant did not seek to read any affidavit evidence and no oral evidence was given directly by the applicant or his solicitors. Some documentary material appears to have been before the Tribunal and statements, which the Tribunal appears to have accepted, were made by counsel for the applicant.
From these statements and other documentary evidence before the Tribunal, it appears that Mr A'Hearn had claimed agalnst the respondent under the Commonwealth Em~lovees'
Rehabilitation and Com~ensation Act 1 9 8 8 ( " t h e A c t " ) . His
claim was refused.
Section 6 4 ( 1 ) of the Act conferred upon the applicant a right to refer to the Tribunal for review a decision of the respondent with which he was unsatisfied. Section 6 5 ( 4 ) of the Act had the effect that any application for review had to be brought within 6 0 days. The latest date upon which proceedings could, without leave, have been commenced in the Tribunal was 2 6 September 1 9 9 0 . In fact no
application was lodged in the Tribunal until 27 February 1 9 9 2 .
It seems that the applicant instructed his solicitors initially in September 1 9 8 9 . At the time a request for reconsideration had been served upon the respondent. The solicitors received a copy of the respondent's decision on 2 August 1 9 9 0 and received instructions to commence proceedings in the Tribunal. The Tribunal does not note the date when those instructions were given. It may well be that no evidence was before the Tribunal of that date. It may be inferred, however, in the way the Tribunal put it, that the instructions were given fairly soon after the receipt by the solicitors for the applicant of the respondent's decision.
In any event, there seems to have thereafter been gross inaction on the part of the solicitors. The explanation for the gross inaction may lie in the various changes of personnel who appeared to have acted, if that be an appropriate word, over a period of time.
The applicant made enquiries in February 1992 of the progress of his application. It may be inferred that he was justified in believing that his initial instructions had been complied with. But be that as it may, the February 1992 enquiry produced some action, pretty much for the first time, because proceedings were then commenced in the Tribunal seeking an extension of time in which proceedings could be
commenced.
Counsel for the applicant submitted that the delay was caused by the solicitors and that the client should not be penalised. He submitted also that the applicant himself was not at fault and that the respondent had not suffered any prejudice by the delay. Those submissions were countered by submissions by the respondent which placed emphasis upon what the submissions describe as the "basic rule" that proceedings not commenced within the prescribed time should not be permitted.
In its reasons the Tribunal referred to a number of decisions of this Court including Duff v Freijah (1982) 43 ALR 479; Hickev v Australian Telecommunications Commission (1983) 47 ALR 517 and Hunter Vallev Developments Pty Ltd v Minister for Home Affairs and Environment (1983) 58 ALR 305, the last mentioned being a decision referred to with approval in many decisions of judges of this Court.
I should say that Wilcox J in Hunter Valley Develo~mentS Pty Ltd was at pains to make clear that he was not seeking to set out principles of law governing the exercise of discretion to extend time. Care must be taken by the Tribunal to ensure that there is not a slavish adherence to the matters which are referred to in that judgment, which are listed merely as matters for guidance, in determining the
extensions of time under the Administrative Decisions (Judicial Review) Act (1977), a context which differs slightly
from that in the AAT Act. I do not, however, suggest that the Tribunal necessarily saw the comments of Wilcox J as dictating matters of law to be considered in the exercise of discretion.
The Tribunal's reasons commenced with placing emphasis upon the mandatory "shall" of s.29(1) (d) of the AAT Act. However, at least in its initial discussion of
s . 2 9 ( l ) ( d ) , t h e Tribunal correctly made it clear tha t s .29(7) confers an unfet tered discret ion upon the Tribunal, although 2 9 ( l ) ( d ) shows a prima fac ie rule tha t proceedings not commenced i n time should not be entertained: c f per Fitzgerald
J i n Lucic v Nolan ( 1 9 8 2 ) 45 ALR 4 1 1 a t 4 1 6 .

The Tribunal then asked i t s e l f whether t h e

discret ion available under 2 9 ( 7 ) should be exercised i n favour o f t h e applicant and determined tha t question i n the negative.

I t said ( a t 1 3 ) :

"What i s remarkable about t h i s application i s that there was an absence o f any evidence e i ther by the Applicant or h i s

solicitors upon the hearing. Additionally

there w a s a t o ta l absence o f any 'acceptable explanation for the delay'

( r e f e r D u f f v Freiiah and Lucic v Nolan).

On the one hand, 'delays by a s o l i c i t o r

are v i s i t ed upon the c l i en t . . . ' (Duff v Freijah a t page 485) and on the other 'although delays by so l i c i to r s are

relevant . . . there i s ample evidence o f

the Applicant's t o ta l fa i lure t o take any

s tep. . . ' (Lucic v Nolan a t page 4 1 7 ) .

The delay on the p a r t o f the s o l i c i t o r s

was inexcusable. From the date o f del ivery o f the reviewable decision they d i d no more, it would appear, than arrange m e d i c o - l e g a l examinations ( t h e n approximately ten months a f t e r the expiry o f time t o commence proceedings) and respond t o the Applicant when he consulted with them i n February 1992.

Nothing was done unt i l February 1992 t o give the Respondent any indication that t he application might be Issued and I bel ieve the Respondent could have correct ly assumed, by the absence o f any

communication elther oral or in writing,
that the application had concluded.

Whilst I am not satisfied in the absence of evldence that the Respondent would have suffered prejudice it does not follow that the absence of prejudice on the part of the Respondent allows an Applicant to succeed in an application to extend time (refer Hunter Valley Developments at page

311; Hickep at page 523).

Public administration, particularly review of decisions of government or its agencies, dictate a need of efficiency and finality.

The Tribunal, after considering two other matters which had been put to it but which are not relevant to the present appeal, then emphasised that the nature of the language in s.29(1) suggested that the institution of proceedings wlthin time was critical and repeated its comments that there had been no acceptable explanation for the delay provided either by the applicant or his solicitors.

The Tribunal's reasons are criticised by counsel for the applicant as involving the following questions of law:

1.   Whether the Tribunal had failed to take into account, in exercising its discretion under s.29(7), the consequences to the applicant of the failure to extend the time for lodging an application for review of a decision.

2.   Whether the Tribunal had erred in law in holding that "inexcusable delay" on the part of the applicant's solicitors could not constitute an acceptable explanation for delay.

3.   Whether to the extent that the Tribunal did take into account at all as an explanation for delay the conduct of the applicant's solicitors, it gave so little weight to that factor that the Tribunal's decision was so unreasonable that no reasonable decision-maker could have come to it.

4.   Whether the Tribunal erred in law in treating

as critical the time limit in S. 29 ( l) (d) of the

AAT Act.

There are two difficulties about the way in which the Tribunal approached the exercise of discretion in the present case.

Notwithstanding submissions to the contrary by counsel for the respondent, it seems to me that the Tribunal has taken the view that the negligence of a solicitor should be visited upon that solicitor's client so that any delay arising from the conduct of the solicitor should be disregarded as not constituting an acceptable explanation for the delay.

In so doing, the Tribunal appears to have placed considerable weight on what was said by Northrop J in Duff v Freiiah. Reference should, however, be made to the decision of the Full Court of this Court in Jess v Scott (1986) 70 ALR 185 and the comments made, with respect to that case, by another Full Court in Liahthouse Philatelics Ptv Ltd v Commissioner of Taxation (1991) 32 FCR 148.

The question in Jess v Scott was whether, for the purposes of a rule of this Court which required special reasons for considering an appeal filed out of time, delay of a solicitor, or error on the part of the solicitor, could be treated as constituting special reasons. In a unanimous decision of Lockhart, Sheppard and Burchett JJ, the decisions in the United Kingdom, Australia and New Zealand concerning extensions of time in cases where delay was caused by solicitors were reviewed. As the Court pointed out, initially it was thought that the failure of a solicitor to institute an appeal in time should not be treated as a special reason. However, over the years the attitude of courts has changed and, as the actual decision in that case shows, the solicitor's delay may itself constitute "special reasons". Of course the solicitor's conduct is only one matter and other relevant matters would have to be taken into account. At the end of the day the discretion of a court or tribunal given power to extend time will be a wide one, to be exercised as

delivering the leading judgment in the Court of Appeal in	the justice of the case may require. As Richmond J,
Averv v No.2 Public Service A ~ ~ e a l Board [l9731 2 NZLR 86 at 92, said:

"In order to determine the justice of any particular case the Court should I think have regard to the whole history of the matter, including the conduct of the parties, the nature of the litigation and the need of the applicant on the one hand for leave to be granted together with the effect which the granting of leave would

have on other persons involved. "

In the present case, the Tribunal appears clearly enough to have accepted that the delay on the part of the solicitor was inexcusable. Indeed it seems that the solicitors pursued a course of masterly inactivity. This was a matter which was capable of constituting an acceptable explanation for the delay. It is simply not a principle of law to be applied that the sins of solicitors must be visited upon their clients. Also, as the passage I have just cited from the judgment of Richmond J in indicates, in deciding the issue the Court must, inter alia, balance the interests on the one hand of the applicant and the effect which a rejection of the extension of time will have upon the applicant, against the effect or prejudice of the granting of an extension of time upon the respondent.

In the present case it was not suggested before the Tribunal that there was any preludice at all to the respondent

in time being extended. I should say also 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 worker's compensation claim. However, the weight to be placed upon it is a matter for the Tribunal and not a matter for me and I would make no further comment about it.

It seems to me that the Tribunal's reasons for decision suggest that it has started, notwithstanding its initial reference to Lucic v Nolan, with the view that it is "critical" that proceedings be instituted within time. That really overstates the position having regard to the provisions of S. 29 (7) . The Tribunal then took the view not only that no admissible evidence was given by those involved (there was of course evidence from the bar table which appears to have been accepted), but also that the gross negligence on the part of the solicitors did not constitute an acceptable explanation for the delay which had occurred. Thus the Tribunal took the view that the only matter which the applicant had succeeded in showing was that there was an absence of prejudice on the part of the respondent.

It is of course true that if that was all that the
applicant had shown then the Tribunal would have been entitled

to reject the application, but in fact the applicant had, as

the Tribunal itself recognises, given an explanation, namely,

the conduct of the solicitor. The Tribunal had regarded that

explanation as unacceptable, yet having regard to the Full Court of this Court in Jess v Scott that view involves an error of law, as does the failure to take into account the effect upon the applicant of the refusal to grant the extension of time. Accordingly, the matter must be remitted to a differently constituted Tribunal for reconsideration in accordance with law.

The Court has, of course, a judicial discretion to determine the way in which the costs of this appeal should be borne. In so doing, I take into account the fact that the initial need to apply to the Tribunal for an extension of time has arisen from conduct for which the respondent can hardly be said to be responsible. There are some indications from the judgment that in the proceedings before the Tribunal the Tribunal was not necessarily given the assistance which it might perhaps have been entitled to expect. On the other hand, the applicant has been successful in the appeal but in circumstances where, in once sense, neither the applicant nor the respondent were responsible for the need for the appeal, albeit that the respondent has contested the appeal.

On the whole, I think that greater weight should be

placed upon the fact that the appeal has been brought because

of an error which the Tribunal has committed and has been

opposed by the respondent unsuccessfully. In those

circumstances it seems to me that the ordinary rule should prevail and that the respondent should pay the applicant's costs of the appeal.

I certify that this and the
preceding twelve (12) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Mr Justice Hill.

Associate :  7 -c(+- L.

Date :

Counsel and Solicitors	R Gorton & A Ingram instructed
for Applicant:	by Slater & Gordon
Counsel and Solicitors	P Hanks instructed by the
for Respondent :	Australian Government Solicitor
Date of Hearing:	16 April 1993