Albert and Australian Postal Corporation - [2001] AATA 340

DECISION AND REASONS FOR DECISION [2001] AATA 340

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/132

GENERAL ADMINISTRATIVE DIVISION       )
           Re      SHIRLEY ALBERT
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date26 April 2001
PlaceSydney

Decision      The Tribunal extends to 31 January 2001 the time within which the Applicant was able legally to lodge an application with the Tribunal for review of the decision in question. The Tribunal notes that the Applicant agreed in the hearing that she would be responsible for her costs associated with the application for an extension of time.
   [Sgd] M J Sassella
  Senior Member
CATCHWORDS
WORKERS' COMPENSATION – extension of time - left arm, back and neck pain – aggravation of condition – claim for compensation – claim for permanent impairment – whole person impairment – notification of right to appeal a reviewable decision - failure to seek a review 60 days after notification of the reviewable decision - a reasonable explanation for delay in lodging an application for review - delay by a solicitor in commencing proceedings – prejudice to the respondent - incorrect legal advice – merits of the substantive application
Administrative Appeals Tribunal Act 1975, ss 29(1)(d), (2)(a), (7), (8)
Safety, Rehabilitation and Compensation Act 1988, ss 53(1), 54, 65(1), (4)

Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315
Comcare v A'Hearn (1993) 119 ALR 85
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Agar v Australian Postal Commission (1998) 56 ALD 361
Re Petrou and Australian Postal Corporation (1992) 25 ALD 407
Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42

REASONS FOR DECISION

26 April 2001 M J Sassella, Senior Member

History of application

On 29 January 2001 a solicitor for the Applicant signed an application for review of a decision which was lodged with the Tribunal on 31 January 2001. The decision to be reviewed was dated 1 March 1999 and the Applicant had been made aware of the decision on 2 March 1999 (Tribunal Form 1). The final date for lodging an application for review within time was 2 May 1999. The Applicant had delayed for about 1 year and nine months in lodging an application. The Applicant sought an extension of time because "[d]ue to an administrative error an Application for Review of Decision was not filed in the requisite time".
The Tribunal wrote to the Respondent on 2 February 2001 seeking its views on permitting an extension of time. On 9 February 2001 the Tribunal received the Respondent's letter (R1) opposing an extension of time. The reasons for opposing the extension were:

The Applicant was given notice of her right of appeal to the Tribunal with notice of the original determination on 5 May 1998.

The Applicant was legally represented at the time of the reviewable decision which was made on 1 March 1999 (Exhibit R2). Notice of the reviewable decision also gave notice of Tribunal appeal rights.

The Applicant had not provided sufficient reasons for the delay in lodging an application for review.

No fresh evidence had been provided to indicate that her compensable condition had changed.

No further evidence had been provided in support of the application.

The Tribunal convened a hearing to consider whether to grant the extension of time. At the hearing the Applicant was represented by Mr Brendan Kelly of counsel. Miss Rhonda Henderson of counsel represented the Respondent.
The following material was taken into evidence at the hearing:
Affidavit of Shirley Albert dated 27 February 2001       Exhibit A1
Affidavit of Christine Ornelas dated 27 February 2001 Exhibit A2
Letter from Applicant's representative to the Applicant dated 9 March 1999 Exhibit A3
Letter from Applicant's representative to Dr Mahony dated 14 January 1999         Exhibit A4
File note from Applicant's representative's file dated 22 April 1999    Exhibit A5
File note from Applicant's representative's file dated 20 October 1999        Exhibit A6
Letter from Neil Williams to the Tribunal dated 9 February 2001       Exhibit R1
Letter from Australia Post to Applicant's representative dated 1 March 1999          Exhibit R2
Claim for compensation – upper back dated 18 August 1997 Exhibit R3
Claim for compensation – lower back dated 18 August 1997 Exhibit R4

Relevant legislation

The relevant legislation in this matter is the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), ss 29(1)(d), (2)(a), (7), (8), and the Safety, Rehabilitation and Compensation Act 1988 ("the SRC Act"), ss 53(1), 54, 65(1), (4).
The AAT Act

"29 Manner of applying for review
(1)       An application to the Tribunal for a review of a decision:
          …
          (d)       if the terms of the decision were recorded in writing and set out in a document that was furnished to the applicant or the decision is deemed to be made by reason of the operation of subsection 25 (5) - shall be lodged with the Tribunal within the prescribed time.
(2)       Subject to subsection (3), the prescribed time for the purposes of paragraph (1) (d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:
          (a)       if the decision sets out the findings on material questions of fact and the reasons for the decision - the day on which a document setting out the terms of the decision is furnished to the applicant; or
…
(7)       The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section).
(8)       The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired."

The SRC Act

"Section 53 Notice of injury or loss of, or damage to, property
53. (1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware of the injury; or
(b) if the employee dies without having become so aware or before it is practicable to serve such a notice-as soon as practicable after the employee's death.
…
Section 54 Claims for compensation
54. (1) Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.
(2) A claim shall be made by giving the relevant authority:
(a) a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and
(b) except where the claim is for compensation under section 16 or 17-a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph.
(3) Where a written claim, other than a claim for compensation under section 16 or 17, is given to a relevant authority under paragraph (2) (a) and the claim is not accompanied by a certificate of the kind referred to in paragraph (2) (b), the claim shall be taken not to have been made until such a certificate is given to that authority.
(4) Where a claim is given to Comcare, Comcare shall cause a copy of the claim to be given to:
(a) where the employee concerned is or was a member of the Defence Force at the time when the relevant injury or accident occurred-the Secretary to the Department of Defence; or
(b) in any other case-the Secretary of the Department, or the principal officer of the Commonwealth authority or licensed corporation, in which the employee was employed at that time.
(5) Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.
Section 65 Modifications of the Administrative Appeals Tribunal Act 1975
65. (1) This section has effect for the purposes of the application of the Administrative Appeals Tribunal Act 1975 (in this section called "the Act") in relation to a reviewable decision.
…
(4) Subsection 29 (2) of the Act has effect as if the reference to "the twenty-eighth day" (first occurring) were a reference to "the sixtieth day"."

Factual chronology

The Applicant provided an affidavit sworn on 27 February 2001 in which she recited the facts as she knew them (Exhibit A1). The chronology below comes from Exhibit A1 in the main, but is supplemented where appropriate with material from other identified sources.
She commenced work with the Respondent on 1 December 1987. She worked as a mail sorter at the Sydney General Post Office ("the GPO").
In or about November 1990 she began to feel symptoms in her left arm, back and neck. She reported this to the Respondent's safety and rehabilitation officer at the GPO. She was referred to a physiotherapist whom she first saw on "30 November 1999" [sic – this should be 1990]. Her pain continued nevertheless. On 27 November 1990 she saw her general practitioner, Dr Robertson.
Late in 1990 she began working as a reconciliations officer whose job was reconciling and sorting money orders. Between 1990 and 1998, in addition she stacked boxes of money orders onto a trolley and then in a storeroom. This involved lifting weights of five to 10 kilograms. She remained with symptoms.
Dr Robertson referred her to Dr Mahony, an orthopaedic surgeon, in August 1994.
On or about 18 August 1997 the Applicant lodged two compensation claims with the Respondent (Exhibits R3 and R4). The Applicant did not claim earlier because she "was afraid that [she] would lose [her] job" (Exhibit A1).
In March 1998 the Applicant was transferred to the Respondent's accounting services section where she sorted mail and extracted cheques from envelopes.
On 5 May 1998 the Respondent rejected the Applicant's compensation claim. The Applicant was told by the delegate who had made the decision not to submit any further claims for time absent from employment or for treatment expenses as her claim had been rejected.
In 1999 she was transferred to the systems and operations support section and then she was put on light duties. Since then her condition has stabilised but she has the same symptoms.
On 14 January 1999 the Applicant's solicitor sought a reconsideration of the determination made on 5 May 1998 (Exhibit R2).
On 1 March 1999 the request for reconsideration was answered when a reviewable decision affirming the primary decision was issued (Exhibit R2).
On or about 9 March 1999 the Applicant received correspondence from Mr J Keane of her solicitor's firm confirming the rejection of the compensation claim (Exhibit A3). In conferences with Mr Keane attended soon after by the Applicant there was discussion about seeking a report from Dr Mahony as to the Applicant's possible permanent impairment. The Applicant recalled no discussion of the reconsideration decision. The Applicant recalls Mr Keane saying that the weekly compensation payments claim and permanent impairment claim should be brought together.
Between about April 1999 and late 2000 the Applicant had no contact from Mr Keane. She assumed her claim was being dealt with.
In or about November 1999 the Applicant travelled to Reunion Island near Mauritius to be with her sister whose son had been involved in a serious motor car accident and was in a critical condition.
In February 2000 the Applicant returned to Australia. Her nephew had died.
Shortly after she travelled again to Mauritius to assist with the funeral of her best friend's mother who had died. While there on that occasion she received news from Australia that her daughter and son had been involved in a serious motor vehicle accident. She flew back to Australia. Her son was in intensive care for 12 days and was then constantly in hospital for treatment, physiotherapy and rehabilitation to assist him in walking. She took five months long service leave to care for her son.
In October 2000 the Applicant returned to work and was transferred to the Respondent's compensation section where she did continuous data entry. This adversely affected her shoulders. She obtained a certificate from Dr Robertson and was transferred back to the systems and operational support section. Outside work hours the Applicant was involved in caring for her son. She did not make contact with her solicitor.
On about 17 January 2001 the Applicant attended at the solicitor's firm to see Ms Ornelas, a solicitor handling a different matter for her. Ms Ornelas had also taken over the compensation case and advised the Applicant that her claim was now out of time and she would have to apply to the Tribunal if she wished to continue it. The Applicant was unaware until that date that the time for appealing to the Tribunal had expired.
The Applicant continues to consult Dr Mahony and a physiotherapist. She still performs light duties in the systems and operational support section.
The Applicant named co-workers who are aware of her problems.
Dr Mahony has assessed the Applicant as having a 49% whole person impairment.
The Applicant gave oral evidence at the hearing. From that evidence the following new material emerged:

She was unaware of the requirement to lodge an application for review with the Tribunal within 60 days of receipt of the reviewable decision. No one had explained this to her.

On 20 October 2000 the Applicant had written to Mr Glen Marks of the Respondent's work environment branch setting out that she had work restrictions (Exhibit A7). She forwarded this when she was invited to work in the compensation section.

In cross-examination the Applicant conceded that she was given a copy of the reviewable decision but she insisted that it said nothing about a period of 60 days in which to appeal. (The Tribunal notes that the reviewable decision in Exhibit A2, annexure A, does not mention any further avenue of review. Presumably that was in a separate notice which possibly was not copied to the Applicant.) The Applicant could not recall how long it was after she saw the reviewable decision before she saw her solicitor. (It appears from Exhibit A2 to have been on 22 April 1999.) The Applicant stated that the equipment that she considers brought on her symptoms between 1987 and 1998 is still used in Australia Post.
Miss Henderson put to the Applicant that she had been provided with a letter from the Respondent which mentioned a 60-day appeal period and which contained a request that she submit medical certificates. This letter was not tendered as an exhibit so the Tribunal cannot comment on it.
In paragraph 14 of Exhibit A1 the Applicant had said that she made no further claims for time off work because of her injuries for fear she would lose her job. Also, Mr Williams, a compensation delegate had told her to submit no further claims for time off. Miss Henderson indicated that the Applicant had submitted sick leave forms after she made her unsuccessful compensation claim in 1997 and after her communication with Mr Williams. The Applicant denied this (transcript, 12) and Miss Henderson appeared to accept the denial.
The Applicant's solicitor's evidence
Ms Ornelas, the Applicant's current solicitor, swore an affidavit on 27 February 2001 (Exhibit A2) in which she explained what had occurred in the Applicant's firm of solicitors. She provided the following relevant information:

Mr Keane had carriage of the matter but left the firm.

Ms Ornelas took over the matter on 14 January 2001 and had no earlier knowledge of it.

The firm received the reviewable decision on 2 March 1999.

The firm forwarded a copy of the reviewable decision to the Applicant on 9 March 1999. The Applicant was advised that on 14 January 1999 the solicitors had asked Dr Mahony for a report on the Applicant and his opinion in respect of permanent impairment (Exhibit R2, annexure C). A secretary within the firm apparently contacted Dr Mahony to chase up the report on 9 March 1999, 22 April 1999 (Exhibit R2, annexure C) and 20 October 1999 (Exhibit A6).

On 22 April 1999 Mr Keane spoke with the Applicant and apparently said that all claims for incapacity payments, impairment lump sum entitlements and medical expenses had to be brought together. Exhibit A5 is a file note apparently by Mr Keane covering a number of matters. These included a note of a report by Dr Mahony dated 2 October 1998, the Applicant's belief that pushing a trolley weighing up to 100 kg was as much a problem as repetitive activities, the Applicant's obligation "to bring all claims at once – weekly payments, permanent injury, medical expenses", advice that the Applicant not take voluntary redundancy, an undertaking to chase up Dr Mahony, and a suggestion that Applicant also chases up Dr Mahony.

In December 1999 Mr Keane left the firm and the file was apparently closed and stored away.

In late 2000 the file was retrieved to contact the Applicant about a matter involving her son.

The Applicant then contacted the firm and arranged an appointment to discuss her case. This led to the application for review.

A claim for compensation for permanent impairment was received with medical details completed by Dr Mahony on 16 February 2001 (Exhibit R2, annexure B).

Applicant's arguments

Mr Kelly summarised the Applicant's case as follows. He addressed the criteria for the granting of an extension of time in Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315. The first of these is a requirement for a reasonable explanation for delay in lodging an application for review. The Applicant's explanation is that she received a copy of the reviewable decision on about 9 March 1999. She has no recollection of receiving any advice of there being a 60 day time limit within which to apply to the Tribunal for a further review. She recalls seeing no notice of her rights. She does recall advice that all her compensation claims had to be dealt with together, including the claim for permanent impairment which was stalled because of Dr Mahony's long delayed medical assessment.
The Applicant had, not unreasonably, put her compensation affairs in the hands of a solicitor whom she had no reason not to trust. She was relatively unsophisticated in relation to the complexities of the compensation process and had to trust the advice and competence of Mr Keane. Mr Kelly cited Comcare v A'Hearn (1993) 119 ALR 85 where the Federal Court held that delays by a solicitor in commencing proceedings need not be visited on his or her client.
Mr Kelly referred to an array of unfortunate events that in total worked against her proceeding promptly to the Tribunal. She had no ongoing contact with her solicitors. The closing of her file by the solicitor's firm was an event outside her control. Her son suffered serious injuries. She had to take five months off work to care for him. There was no evidence of any conscious decision by the Applicant to abandon her claim. Exhibit A7 (see paragraph 27, above) shows that in the workplace she was reasonably assertive in sensitising relevant staff to her situation.
Mr Kelly submitted that there is evidence from Dr Mahony to suggest that the Applicant may have a claim for whole person impairment to the extent of 49% (Exhibit A2, annexure B). This shows that the Applicant has a reasonable case to argue on its merits, another of the Hunter Valley (supra) criteria.
As regards prejudice to the Commonwealth if an extension of time is granted, Mr Kelly argued that none has been shown. The Applicant has been employed by the Respondent through the entire period. Potential witnesses remain employed by the Respondent. The Applicant said under oath that there has been no change to the processes involved in the duties that she has been doing at least since the time of issue of the reviewable decision. Mr Kelly referred to the High Court decision in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at page 550 where Toohey and Gummow JJ state, "The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent."

Mr Kelly had more to say on prejudice to the Respondent after he had heard Miss Henderson (below). He conceded that there is force in the point that any delay in bringing proceedings is prone to bring on some form of prejudice. However, he stressed that the crucial point is whether the Respondent can obtain a fair trial.
The point was made for the Respondent that the Applicant has complaints relating as far back as 1990 and the delay has exacerbated any prejudice based on this fact. Mr Kelly called in aid the remarks of Kirby J in the South Brisbane case (supra) at page 573 where he says:
"In judging prejudice, for the purpose of considering the order extending time, the matter to be weighed is the increase of prejudice after the expiry of the ordinary period of limitation. Until that time the law, as expressed in the Act, envisages that the defendant must accept any prejudice or delay without complaint."

In short, the Applicant would have been within her rights to apply for review as late as about 2 June 1999, and it is not in point to say that that application would bring in matters up to nine years old. The Tribunal and the Respondent would simply have to cope with the problem. The focus here is on the incremental hardship derived from a further delay of about one year and nine months.
Mr Kelly identified that the Applicant's area of weakest argument involves the period from March 1999 to November 1999 when she does not seem to have agitated her case very much. Mr Kelly emphasised that Ms Albert saw her solicitor twice in that period, there being substantial corroboration of a meeting with him on 22 April 1999. It is reasonable that she thought her solicitor had control of the matter. The period of April to November 1999 is not excessive in that context.
Respondent's argument
Miss Henderson took the Tribunal to a series of decisions on extension of time and certain principles that could be discerned from these. The first was Agar v Australian Postal Commission (1998) 56 ALD 361 in which the Tribunal refused to grant an extension of time. In making its decision the Tribunal focused on any reasons the applicant may have had for her failure to seek a review in the 60 days after she was notified of the reviewable decision. It is important to look at the explanation for the full period of delay (here nearly two years).
In Re Petrou and Australian Postal Corporation (1992) 25 ALD 407 at 411 the Tribunal cited with approval a comment by Deputy President McMahon in an earlier decision where he said:
"Any delay, of course, is prejudicial. The more time that elapses between the events to be examined and the date of the hearing, the more difficult it is to present meaningful evidence … Even if this were not so, however, the mere absence of prejudice would not be enough to justify the grant of an extension."

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

In the Brisbane South case (supra) McHugh J discussed the reasons for limitation of actions. At pages 551-552 he makes the following comments:
"The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates'. …
"…it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed. …
"A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose. …
"The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even 'cruel' to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period."

Reference was made to the decision of the President in Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42 where she presents at page 48 a list of criteria for extending time that closely accords with the criteria in the Hunter Valley case (supra).
Miss Henderson proceeded to address the criteria. She noted that the Applicant had a solicitor in Mr Keane who should well have understood that he was dealing with a client who had a limited time in which to appeal. He should have known how to read the notice of rights.
Miss Henderson was prepared to say that Ms Albert appears to have been given incorrect legal advice and to have had a number of unfortunate events in her personal life in late 1999-2000. That, however, leaves a substantial period in 1999 when the Applicant does not seem to have made any contact with her solicitors and simply let the matter lie.
Miss Henderson submitted that the letter to Mr Marks in Exhibit A7, which Mr Kelly suggested kept the Respondent on notice that the Applicant was not letting her claim lie idle, did not contain anything that would put Mr Marks on notice that the decision denying compensation was contested. All the letter says is that the Applicant believes she has work restrictions. This could be for any of a number of reasons which do not necessarily connote an ongoing workers compensation claim. Later Mr Kelly explained that the reference in the letter to obtaining further evidence from Dr Mahony, and the letter's general import, combined to make the Respondent aware that she was continuing to have difficulties with her work.
As regards prejudice to the Respondent, Miss Henderson referred to the cautions in the Brisbane South (supra) and Petrou (supra) cases about the dangers for justice when matters that are stale are litigated. In this case the events go as far back as 1990 and it is certain that relevant information will have been lost over that time. Miss Henderson cast doubts on whether the co-workers named by the Applicant as still at Australia Post and who could be relevant witnesses would have the necessary background knowledge to give appropriate evidence. In the main, the Applicant's evidence stated, they are not supervisors, managers, medical experts or occupational health and safety experts. The Respondent has lost the opportunity to have a medical witness who might have examined the Applicant close to the time of the onset of the Applicant's problems available to give evidence. Supervening events could have had an effect on the Applicant. Later Miss Henderson allowed that the Applicant may have been seen at a contemporaneous point by a Commonwealth Medical Officer ("CMO"). A file letter held by the Respondent setting up an appointment in 1992 with a CMO suggests that this may have been so.
Mr Kelly suggested in response that some of these problems could be resolved if the Respondent contacted Ms Karen Smith, a safety and rehabilitation officer referred to in Exhibit A1 and Ms Susan Jones, a physiotherapist also mentioned in that document. They saw the Applicant in or about November 1990.
Miss Henderson submitted that, as Dr Mahony's report which was seen by the delegate is not before the Tribunal, there is no real evidence that the merits are at all strong in the Applicant's case.
Findings on material questions of fact with reference to relevant evidence
In considering whether to grant an extension of time the Tribunal applies the principles in the Federal Court decision, Hunter Valley Developments Pty Ltd v Cohen (supra). There are a number of criteria that arise from that decision. These are most notably:
The Applicant must provide a reasonable explanation for the delay. As Wilcox J says in his decision (at page 320):

"Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need to be shown but the court will not grant the application unless positively satisfied that it is proper to do so. … It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an 'acceptable explanation of the delay' and that it is 'fair and equitable in the circumstances' to extend time."

The Applicant should have taken action other than this application to make the decision-maker aware that he contests the finality of the decision.

The Respondent should not be unduly prejudiced if the time is extended.

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

Has the Applicant provided an acceptable explanation for the delay?

At base the Applicant's explanation for delay is that she relied on her solicitor to conduct her compensation matter competently and efficiently and he seems, on the evidence, not to have done so. The Tribunal is conscious that it has not heard from Mr Keane and it is no minor matter to impugn the competence of a practising solicitor. However, at the very least it seems clear that Mr Keane did not communicate as effectively as he might have done to Ms Albert that there was a 60-day time limit for a further appeal. In addition he seems to have advised her that she should not take the matter further until further evidence to come from Dr Mahony was to hand and they could press for all heads of compensation at the one time. There is ample corroboration for this in Exhibit A5 and the Tribunal is grateful to Ms Albert's solicitor for her candour in making this material available from her firm's file. That was not the best advice that he could have given Ms Albert.
Both counsel referred to the Federal Court decision in Comcare v A'Hearn (supra). There was no real disagreement as to the principle to be derived from that case, which is that the deficiencies of a legal adviser need not be visited on a client in the context of seeking an extension of time. In the present case the Tribunal considers that principle should be applied. The firm approached by the Applicant is a firm with significant experience in compensation work. Ms Albert has no personal knowledge of or education in the principles of compensation law. She understood, incorrectly as it turned out, that everything had to be in abeyance until Dr Mahony reported. If issues of time limits occurred to her at all, on the basis of what she had been advised, it would have been understandable if she thought that the time would commence to run when Dr Mahony's report was received.
The Tribunal points also to the evidence in paragraphs 19-21, above, which was not contradicted, as to a series of family tragedies befalling the Applicant, and her nuclear family on Reunion Island, from about November 1999 until her return to work in October 2000. In the Tribunal's view these events were a reasonable cause for her attention to have been on matters other than her compensation issues during that lengthy period.
The Tribunal, on the basis of the above evidence and considerations, finds that the Applicant has provided an acceptable explanation for her delay.
Has the Applicant taken action other than making this application to make the decision-maker aware that she contests the finality of the decision?
The Applicant relies on her letter to Mr Marks dated 20 October 2000 (Exhibit A7) as evidence that she was obtaining further evidence from Dr Mahony and was making the Respondent aware that she was continuing to have difficulties with her work.
This is perhaps a thinner justification than others commonly offered in relation to this criterion. Usually the applicant can indicate the pursuit of parallel proceedings elsewhere or a series of internal meetings or consultations about the applicant's problems within the workplace. However, the Tribunal is inclined to accept that the Applicant did continue to agitate the matter, admittedly in a non-legalistic fashion. The Tribunal regards it as significant that the Applicant dealt personally with Mr Williams, the compensation delegate who had made decisions in her matter. There is some conflict as to the messages she received, or should have received from Mr Williams, but he should not have been in any doubt that Ms Albert was not totally satisfied with the rejection of her claim.
For the above reasons, and on the basis of the evidence there referred to, the Tribunal finds that the Applicant took reasonable steps to make the decision-maker aware that she had ongoing compensation issues with the Respondent.
Would the Respondent be unduly prejudiced if the time were extended?
The Tribunal appreciated the more extensive than usual airing that this criterion received from both parties. The Tribunal recognises the force in the Respondent's arguments about the potential period of workplace activity that is liable to be relevant if this matter goes to a Tribunal hearing on the merits. However, the Tribunal notes and accepts Mr Kelly's submission based on Kirby J's comment in the Brisbane South case (supra) to the effect that the focus should be on the prejudice accruing to the Respondent from the time when the period for appeal has expired; here that is the period commencing on 2 June 1999. Had the Applicant lodged her application for review by that date, the Respondent would have had to defend its interests, even if they extend back to 1990, as best it could. The issue is whether the Respondent's prejudice is significantly worse because of the additional one year and nine months delay.
The Tribunal notes the Applicant's evidence that she communicated her problems to her employer as soon as they emerged in 1990 (Exhibit A1). This put the Respondent on notice that something was happening and, to Australia Post's credit, the Respondent arranged a physiotherapy consultation for the Applicant. It is true that the Applicant delayed a very long time (until August 1997 – Exhibits R3 and R4) before lodging claims for compensation. However the Act does not prescribe a time limit for lodging a compensation claim. In ss 53 and 54 of the Act the scheme is that notice of an injury is required in writing as soon as practicable after the employee becomes aware of the injury but there is no similar requirement in respect of a claim. In the present case the Applicant seems to have given early notice, although it is unclear whether it was in writing, and to have made a much later claim. She explained the delay in claiming as caused by fear that she would lose her job. While this is of casual interest it is not relevant to the resolution of this matter because she has no need to provide an explanation, under the Act, for the delay in claiming.
The Tribunal's purpose in this lengthy exposition is to suggest that the Act contemplates that a respondent may be required to tolerate some prejudice where an employee chooses to delay claiming compensation. In the present case the Applicant has delayed for a relatively much shorter period before seeking a review by the Tribunal. In the Tribunal's view the additional prejudice, if any, to the Respondent as a result of this further delay should be insignificant.
The Tribunal therefore finds, for the reasons, and on the basis of the evidence discussed, that the Respondent will not be unduly prejudiced if the time is extended.
Are the apparent merits of the substantive application sufficiently strong to justify the grant of an extension of time?
Miss Henderson was correct in suggesting that very little is known at present about the merits of the Applicant's application. Certainly the reasoning in the reviewable decision (Exhibit A2, annexure A) seems sound on first blush. However, there is additional evidence now available from Dr Mahony and the Tribunal has not had access to the reports addressed by the delegate in the reviewable decision. There seems, to the Tribunal, to be a substantial matter worthy of the Tribunal's attention in Ms Albert's application. The Tribunal does not have to conduct a full hearing on the merits to resolve this issue. In the Hunter Valley case (supra) at page 323 Wilcox J said that he had to approach the then current application on the basis that "the current application is not to be treated as futile because of the lack of substantive merit". He noted that he had not inquired into the merits because neither party argued that the case was devoid of merit. The situation here is not identical but the Tribunal considers that it has seen enough on the papers to satisfy it that the Applicant has a case that is worthy of argument.
The Tribunal therefore finds that it would not necessarily be futile to proceed with this case. There is potential merit in the Applicant's case.
Conclusion
The Tribunal has decided that the Applicant's request for an extension of time within which to lodge an application for review should be granted. The Tribunal received the application for review on 31 January 2001.
Decision
The Tribunal extends to 31 January 2001 the time within which the Applicant was able legally to lodge an application with the Tribunal for review of the decision in question.
The Tribunal notes that the Applicant agreed in the hearing that she would be responsible for her costs associated with the application for an extension of time.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.
Signed:         .....................................................................................
  Associate
Date of Hearing  28 February 2001
Date of Decision  26 April 2001
Counsel for the Applicant  Mr B Kelly
Counsel for the Respondent  Miss R Henderson