Allegretto and Telstra Corporation Ltd
[2011] AATA 867
•7 December 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 867
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/3473
GENERAL ADMINISTRATIVE DIVISION ) Re GIUSEPPE ALLEGRETTO Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Senior Member K Bean Date7 December 2011
PlaceAdelaide
Decision Pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975, the Tribunal grants the applicant an extension of time until 29 August 2011 for the making of an application for review of the reconsideration decision dated 30 June 2010.
..............................................
K BEAN
(Senior Member)
CATCHWORDS
PRACTICE AND PROCEDURE – Application for extension of time – Previous application dismissed for non-attendance two months before current application lodged – Explanation for additional delay not acceptable and merits weak – However no prejudice and little unfairness if application granted – Delay between dismissal of previous application and filing of current application short – Applicant could have applied for reinstatement and acted relatively promptly to reactivate matter – Extension of time granted.
Administrative Appeals Tribunal Act 1975 s 29
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109
Brown v Commissioner of Taxation (1999) 42 ATR 118
Lukac v Linfox Armaguard Pty Ltd & Anor [2010] FCA 740REASONS FOR DECISION
7 December 2011 Senior Member K Bean 1.This is an application for an extension of time to seek review of a decision of the respondent dated 30 June 2010. That decision found that the respondent was not liable to pay compensation to the applicant, Mr Allegretto, for his claimed condition of “C5/6 disc bulge with nerve impingement and disc posterior”[1].
[1] T23
2.The current application for review was filed on 29 August 2011 and Mr Allegretto’s application for an extension of time was filed on the same date. If the current application is to proceed, Mr Allegretto requires an extension of time, as the current application was not lodged within 28 days of the decision under review, as required by s 29 of the Administrative Appeals Tribunal Act 1975 (AAT Act).
3.Significantly however, until exactly two months before he lodged his current application, i.e. until 29 June 2011, Mr Allegretto had proceedings on foot, brought within time, in which he was seeking review of the same decision the subject of his current application.
4.That previous application (2010/3202) was dismissed on 29 June 2011, pursuant to s 42A(2) of the AAT Act, due to Mr Allegretto’s failure to attend a telephone directions hearing of which he had been notified.
5.As the previous application was dismissed pursuant to s 42A(2), Mr Allegretto could have applied for reinstatement of the application pursuant to s 42A(8) of the AAT Act, within 28 days of being notified of the dismissal.
6.However it now appears that Mr Allegretto may only have become aware of the fact the matter had been dismissed more than 28 days after the dismissal. In any event, he has elected to seek an extension of time rather than applying for the previous matter to be reinstated.
7.Notwithstanding that he previously had an application on foot in relation to the same decision of which he now seeks review, it is established on the authorities that Mr Allegretto may apply for and the Tribunal has jurisdiction to grant an extension of time for him to bring a fresh application (see Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309).
8.The Tribunal’s power to grant an extension of time is conferred by s 29 of the AAT Act, which relevantly provides as follows:
“29 Manner of applying for review
…
Tribunal may extend time for making application
(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) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
…”
9.Generally, to extend time the Tribunal must consider that there is an acceptable explanation for the delay and it is fair and equitable in the circumstances to extend time: per Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. The applicable principles were summarised by Cowdroy J in Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540, by reference to an earlier decision of Federal Magistrate McInnis, as follows:
“18. … In Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109 Federal Magistrate McInnis considered the nature of the discretion contained in s 44(2A)(a) of the AAT Act, and said at [10]:
‘In the light of A’Hearn’s case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it’s fair and equitable in the circumstances to extend time. In the light of the decision in Ahearn’s [sic] case it is useful to set out in modified form the relevant principles in relation to the exercise of the Court’s discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows:
1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The "prescribed period" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550).
2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302).
3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287).
4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287).
5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).
6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417).
7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528).
Such principles were applied by Gray J in Pham v Commonwealth of Australia [2002] FCA 669, although in the context of s 46PO(2) of the Human Rightsand Equal Opportunity Commission Act 1986 (Cth).’
19 The Court respectfully approves of McInnis FM’s articulation of the principles in relation to the discretion contained in s 44(2A)(a) of the AAT Act.”
10.The applicable principles were discussed in Budd and Phillips in the context of s 44(2A)(a) of the AAT Act rather than s 29. It is clear from the relevant authorities however that whilst they ought not be followed in a “slavish” way, these principles are also relevant in the context of s 29[2]. Other matters which have also been found to be relevant in the context of s 29 include the fact that there was a significant issue to be determined, the potential financial loss to an applicant, the length of the delay and ignorance of appeal rights[3].
[2] Brown v Commissioner of Taxation (1999) 42 ATR 118.
[3] Pearce, D., Administrative Appeals Tribunal, Butterworths (2nd Edition, 2007), pp 56-62, [5.6]-[5.20].
11.Whilst the merits of the substantial application are clearly a relevant consideration, recent authorities have also suggested that caution should be exercised in reaching a view on the merits of an application in the context of an extension of time application and that a court or tribunal should be “slow to reject an application for an extension of time … for no reason other than that the appeal, if prosecuted, would be unlikely – even very unlikely – to succeed”[4].
[4] See Lukac v Linfox Armaguard Pty Ltd & Anor [2010] FCA 740 at [12]-[13] and the authorities there referred to.
12.Before turning to consider the applicable criteria as they apply to this matter, it is appropriate that I highlight the fact that the circumstances of this application are relatively unusual, in that Mr Allegretto had an application on foot up until 29 June 2011, when that application was dismissed. The current application for review was filed on 29 August 2011, exactly two months after the dismissal of the previous application. It therefore follows that Mr Allegretto has had an application on foot for all but two months of the period since the reviewable decision was made. In my view, that background is highly relevant to many of the criteria to be considered in deciding whether an extension of time should be granted.
13.I will now turn to considering each of the most relevant criteria.
Has Mr Allegretto provided an acceptable explanation for the delay?
14.Ms Walker, who appeared as counsel for the respondent, submitted that Mr Allegretto had not provided an acceptable explanation for the delay of two months between the dismissal of the previous application and the commencement of this one. She submitted that Mr Allegretto was aware of the dismissal of the previous application and the requirement that he apply to have it reinstated within 28 days.
15.However in his evidence, Mr Allegretto stated that he had been distracted in the middle of this year by issues relating to the health of both of his parents. He also stated that he currently had a lot of debts and was trying to avoid debt collectors and did not read all of the letters delivered to his address. He acknowledged receiving a hand delivered letter advising him of the dismissal of his previous application, but did not specifically explain why he had not received notification of the telephone directions hearing on 29 June 2011, notwithstanding an affidavit of service stating that this had been personally served upon him[5].
[5] Exhibit 3
16.In the circumstances, I do not consider that Mr Allegretto has provided an acceptable explanation for the whole of the two month delay between the dismissal of his previous application and the commencement of the current one. However, I also note that the absence of a satisfactory explanation is not necessarily a barrier to an extension of time being granted.
17.As to the balance of the delay between the reviewable decision and the dismissal of Mr Allegretto’s previous application, I consider that the whole of that period is explained by the fact that Mr Allegretto had proceedings on foot during that time seeking to challenge the same decision of which he now seeks review.
Prejudice to the respondent
18.Ms Walker for the respondent submitted that there would be prejudice to the respondent if an extension of time was granted, by reason of the time and cost involved in fresh proceedings.
19.However, I note that if the previous proceedings had not been dismissed, the respondent would have continued to be involved in those proceedings until their conclusion. Further, as Mr Allegretto has been contesting the correctness of the decision under review for all but two months of the period since that decision was made, an extension of time will not cause any prejudice to the respondent in the sense of causing the respondent any forensic difficulties in defending the proceedings.
20.In these circumstances, in my view the respondent will not be prejudiced if an extension of time is granted.
Other actions taken by the applicant
21.As outlined above, Mr Allegretto has been actively contesting the correctness of the decision under review for all but two months of the period between the reviewable decision and the date of this decision.
22.It is therefore clear that he has not “rested on his rights” and regard to this factor in my view militates in his favour.
Fairness
23.In the unusual circumstances surrounding this application, I do not consider that considerations of fairness as against other applicants militate against the granting of the application. Ms Walker submitted that there was a public interest in prescribed periods for the filing of applications being observed and I accept that submission. However, as I have been at pains to point out, Mr Allegretto brought an application within time seeking to challenge the reviewable decision, and the existence of those proceedings accounts for all but two months of the delay. Further, in those circumstances, in my view considerations of fairness as between Mr Allegretto and other applicants does not militate significantly against the granting of an extension of time.
24.
Length of the delay
25.As I have already indicated, the effective delay in this matter is two months, being between 29 June 2011 when the previous application was dismissed and 29 August 2011 when the current application was commenced.
26.During the first 28 days of that two month period, Mr Allegretto could have applied for reinstatement of his original application. The delay after the expiration of that period is approximately one month. That is a relatively short period and in my view, reference to this factor also does not militate against an extension of time being granted.
The merits
27.The substantive issue in this matter is whether Mr Allegretto’s neck injury occurred in the course of or arose out of his employment, and, if it is a disease, whether it was significantly contributed to by his employment within the meaning of the Safety, Rehabilitation and Compensation Act 1988. The respondent says the condition is a disease and that the medical evidence supports a conclusion that it is attributable to an underlying degenerative condition and previous injuries with no contribution from Mr Allegretto’s employment. The respondent also challenges the veracity of Mr Allegretto’s account of an event which he claims occurred at work and resulted in him suffering from neck pain. The respondent directs attention to the fact that Mr Allegretto did not report this until two months later and has given different accounts of how this event occurred.
28.In his claim for compensation lodged on 23 April 2010, Mr Allegretto stated that the injury occurred on 1 February 2010 as follows:
“Doing normal duties and as I was moving desk equipment as seat relocating felt a click in neck which caused impaired movement to shoulder, arm and hand.”[6]
[6] T16/21
29.Ms Walker has pointed out that in records summonsed from a physiotherapist, Mr Allegretto is recorded as having given a history on 2 February 2010 that he had been suffering from neck pain since the previous Sunday night and also making reference to a motor vehicle accident in 2000 which resulted in a C5/6 disc bulge and sciatica[7]. Records for 3 February 2010 also record that he had been suffering from neck and upper left arm pain for five days as a result of using a laptop[8].
[7] ST7/105
[8] ST6/102
30.Ms Walker also pointed out that whilst a general practitioner, Dr Gouskos, had provided a report dated 31 August 2010 stating that Mr Allegretto’s symptoms were due to “using computers at Telstra”[9], this was inconsistent with contemporaneous medical records summonsed from Mr Allegretto’s treating general practitioner[10]. Further, Ms Walker pointed out that in his claim for compensation Mr Allegretto had claimed he had not suffered from any similar injury beforehand. However it had subsequently become apparent that he had a long standing neck injury for which he had received a lump sum compensation under the State WorkCover scheme. On 16 June 2006, Mr Allegretto had settled those proceedings in the amount of $100,349.78, in respect of an injury on 14 March 2000 including injuries to his neck and cervical spine[11]. Accordingly, Ms Walker contended that the disc protrusion of which Mr Allegretto now complains is clearly attributable to a previous injury for which he has been compensated, and which was in existence prior to his claimed injury of 1 February 2010. Ms Walker also alluded to medical records indicating that Mr Allegretto had been involved in a number of motor vehicle accidents and, for example, complained of increased shoulder pain as a result of a second motor vehicle accident on 30 May 2000[12].
[9] ST86/508
[10] ST8
[11] ST76/480-481
[12] ST66/418
31.Having regard to this material, it appears to me that there is some force in Ms Walker’s submission that Mr Allegretto’s substantive application does not enjoy strong prospects of success. On the basis of the material currently before me, it appears that the C5/6 disc bulge with nerve impingement and disc posterior which is the subject of Mr Allegretto’s claim for compensation is due at least in part to a long standing prior injury. It also appears that Mr Allegretto has given inconsistent accounts of the development of neck pain at or around the time of his alleged work injury, and the circumstances surrounding this.
32.As such, Mr Allegretto faces clear difficulties in establishing that his claimed injury is attributable to or has been contributed to by an event at work on 1 February 2010.
33.Having said that however, I do not have the benefit of all of the evidence which would be available at a final hearing of this matter and I am mindful of the fact that it is far from unusual for records which appear inconsistent on their face to be reconciled with the benefit of detailed oral evidence. I am also mindful of the warning I have referred to above, that courts or tribunals should be “slow to reject an application for an extension of time … for no reason other than that the appeal, if prosecuted, would be unlikely – even very unlikely – to succeed”.
34.Nevertheless, having regard to the merits of Mr Allegretto’s substantive application, I acknowledge that these militate against the granting of his application for an extension of time.
Overall assessment
35.In my view, the considerations relevant to whether Mr Allegretto’s application for an extension of time should be granted are very finely balanced. On the one hand, as I have explained above, the merits of his substantive application appear weak. However, on the other hand, I am mindful that Mr Allegretto’s previous application was dismissed in circumstances where he says he was not actually aware of the scheduled telephone directions hearing. Further he took relatively prompt action to re-activate the matter, albeit that he failed to apply for reinstatement of his previous application within 28 days. I am also mindful of the fact that, if Mr Allegretto had applied for reinstatement within 28 days of the dismissal, and explained that he was not aware of the telephone directions hearing, in all likelihood his application for reinstatement would have been granted. In those circumstances, it appears to me to be a relatively harsh outcome for him to lose the ability to pursue this matter because he waited a further four weeks before lodging his fresh application. It is also relevant in my view that Mr Allegretto claimed his mother had been hospitalised twice in the middle of this year, which led to him being very pre-occupied and distracted at around that time.
36.On balance, notwithstanding Mr Allegretto’s poor prospects on the merits, I have decided that I should grant him an extension of time, having regard to the fact that he had proceedings on foot until 29 June 2011, and that he acted relatively promptly to re-activate the matter once he became aware that the previous application had been dismissed. As I have noted above, I consider that it would be an unduly harsh outcome for Mr Allegretto to be deprived of the opportunity to have his application fully considered on the merits, effectively because of a relatively short delay in seeking to re-activate this matter once he became aware that his previous application had been dismissed.
decision
37.Pursuant to s 29(7) of the AAT Act, the Tribunal grants the applicant an extension of time until 29 August 2011 for the making of an application for review of the reconsideration decision dated 30 June 2010.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
Signed: .....................................................................................
AssociateDate of Hearing 13 October 2011
Date of Decision 7 December 2011
Advocate for the Applicant Self-represented
Advocate for the Respondent Ms T Walker
Solicitor for the Respondent Sparke Helmore
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