Barron and Inco Ships Pty Ltd
[2006] AATA 436
•19 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 436
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2005/161
GENERAL ADMINISTRATIVE DIVISION ) Re BRIAN EDWARD BARRON Applicant
And
INCO SHIPS PTY LTD
Respondent
DECISION
Tribunal The Hon R J Groom (Deputy President) Date19 May 2006
PlaceHobart
Decision The decision refusing an extension of time in which to reconsider the determination of 4 July 2005 is set aside and the matter remitted to the respondent with a direction that time be extended under s78(3)(b) of the Act until 28 days from the date of this decision.
..............................................
Deputy President
CATCHWORDS
Seafarers’ Rehabilitation and Compensation – determination that compensation payments be terminated – request for reconsideration of determination out of time – request refused – application for extension of time to request reconsideration – criteria to be considered – extension of time granted.
Seafarers’ Rehabilitation and Compensation Act 1992 – ss10(7), 26(3), 78 and 79
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305
Lucic v Nolan (1982) 45 ALR 411
Comcare v Willems (1996) 70 FCR 24
Jones v Dunkel 101 CLR 298
REASONS FOR DECISION
19 May 2006 The Hon R J Groom (Deputy President) 1. The applicant suffered a stroke on 9 January 2003 whilst employed by the respondent as a seafarer on the ship MV Portland.
2. On 30 April 2003 the applicant claimed compensation for his injury pursuant to the provisions of the Seafarers Rehabilitation and Compensation Act 1992 (“the Act”). The claim was accepted by the respondent and compensation payments commenced.
3. By letter dated 4 July 2005 received by the applicant on 6 July 2005, the respondent gave written notice to the applicant of a determination made by it that, for the reasons set out in the letter, compensation payments for the applicant would terminate “… effective from 1 August 2005”.
4. The Act allows a person to request a reconsideration of such a determination.
5. Section 78(3) of the Act provides as follows:
“(3) A request for reconsideration of a determination must:
(a) set out the reasons for the request; and
(b) be given to the employer within 30 days after the day on which the determination first came to the notice of the claimant, or within such further period (if any) as the employer, either before or after the end of that 30 day period, allows.”
6. The applicant, through his solicitors, by letter dated 3 September 2005, requested an extension of time to allow a reconsideration of the determination. By letter from its solicitors dated 27 October 2005 the respondent refused to allow the extension of time.
7. The applicant now seeks a review of the decision made by the respondent refusing to allow the extension of time.
8. The hearing of this review application was held in Hobart on 5 May 2006. Mr Tremayne appeared for the applicant and Mr Manuel for the respondent. The documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and an affidavit by Geoffrey William Tremayne dated 4 May 2006 were received into evidence.
9. The issue in this application is whether the Tribunal, standing in the employer’s stead, should exercise the discretion provided in s78(3)(b) of the Act and allow a further period for the applicant to request a reconsideration of the determination.
10. A refusal to allow an extension of time to request a reconsideration under s78 of the Act is a decision reviewable by this Tribunal. It falls within the definition of “reviewable decision” in s76 of the Act.
11. At the hearing Mr Manuel for the respondent suggested that a suitable guide to the exercise of the discretion to extend time can be found in the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1994) 58 ALR 305 at 310 – 311. The Tribunal agrees that Wilcox J has indeed provided a helpful list of the principles to be applied in a proper exercise of this discretion.
12. It was acknowledged by Wilcox J in Hunter Valley that such a list of guiding principles is not necessarily exhaustive. As well, Fitzgerald J said in Lucic v Nolan (1982) 45 ALR 411 at 417:
“Each individual case should be dealt with individually, giving due weight to prior decisions and what they reveal of judicial attitudes.”
13. An extension of time should not be granted unless the Tribunal is positively satisfied that it is proper to do so. The prescribed period of 30 days is not to be ignored (see Hunter Valley (supra) p310).
14. In the Tribunal’s view the following are the principal matters to be considered in this application in deciding whether or not to extend time:
(a)The length of the delay and whether an acceptable explanation has been provided for the delay.
(b)Will an extension of time cause any prejudice the respondent?
(c)Does the claim have sufficient merit to justify it being reconsidered by the employer?
(d)Is it otherwise fair and equitable as between the parties and to any other persons who might be affected to grant an extension of time.
15. Each of those matters will now be considered taking into account the evidence before the Tribunal.
The Length of the Delay and Whether there is an Acceptable Explanation for that Delay.
16. It is not in issue in these proceedings that the notice of determination dated 4 July 2005 satisfied the requirements of s77(1) of the Act and that it was properly served on the applicant on 6 July 2005.
17. On 3 September 2005 the solicitors for the applicant wrote to the respondent asking for an extension of time in which to request a reconsideration of its determination of 4 July 2005.
18. There was no direct evidence as to exactly when the letter of 3 September 2005 was received by the respondent, but it is reasonable to conclude that it was posted on or about the date of the letter and received by the respondent shortly thereafter. The delay was therefore approximately 30 days after the 30 day period allowed for in s78(3)(b) had expired.
19. In his affidavit of 4 May 2006 (Exhibit A1) Mr Barron’s solicitor, Mr Tremayne explains actions taken by him after he was first contacted by Mr Barron’s daughter, Mrs Sheree Bracken, on 8 July 2005.
In his affidavit Mr Tremayne states as follows:
“…
2.On 8th July 2005 I was telephoned by Mrs Sheree Bracken, the daughter of Mr Brian Barron, regarding a notice that she had received on or about 6th July 2005 from Inco ships Pty Ltd.
3.Mrs Bracken advised me that she had been informed by the Maritime Union of Australia that she should contact me with a request that I act on behalf of her father to provide some advice concerning the notice from Inco hips of 4th July 2005.
4.Mrs Bracken advised me that Mr Brian Barron is a permanent resident of the Cosgrove Park Nursing Home. She advised me that he had suffered a stroke and that his physical and mental faculties had been affected and that he was only able to move independently by use of a wheelchair.
5.On 8th July 2005 I received a copy of a letter from Inco Ships dated 5th July 2005 a copy of which I annex hereto and mark with the letter “A”. The letter was sent to me by Sheree Bracken.
6.On 8th July 2005 I telephoned Middeltons Solicitors in Melbourne and asked to speak to Mr Peter Leslie. I understood that Mr Leslie acted on behalf of Inco Ships. I was advised that he would be away until Monday of the following week but he would then call me.
7.On 11th July 2005 I was telephoned by Mr Leslie. Mr Leslie advised me that his firm had been asked to act as solicitors for Inco Ships Pty Ltd. Mr Leslie advised me that it was proposed by his client that there be a meeting with Mr Barron to explain the reasons for the decision to terminate his payments of compensation. I indicated to Mr Leslie that I would not be able to attend such a meeting until I had seen all the relevant documents. I was advised by Mr Leslie that it was unlikely that a meeting between his client and Mr Barron scheduled for 13th July 2005 should be put back.
8.I advised Mrs Bracken that the meeting for 13th July 2005 would be held at a later time. Mrs Bracken advised me that her father was not physically able to travel to Hobart for a conference. On 18th July 2005 I had a lengthy discussion with Mrs Bracken and during that meeting I was requested to act on behalf of Mr Brian Bracken in respect of his claim for compensation against Inco Ships. Mrs Bracken offered to arrange for me to speak to her father. She indicated that she would attend Cosgrove Park Nursing Home on that day. I subsequently telephoned Cosgrove Park Nursing Home on that day. I subsequently telephone Cosgrove Park and spoke to Mr Barron. Mr Barron advised me that he had always been hopeless at filling in forms, he was a poor writer and speller but he believed that he had filled the forms in honestly. I found it very difficult to take instructions from Mr Barron as I was not able to take him through and discuss with him the documents that appeared to me to be relevant. Mr Barron left it to me to investigate his claim.
9.On lst August 2005 I wrote to Middletons Solicitors in Melbourne. A copy of that letter is attached and marked `B’.
10.On 9th August 2005 I received the documents that are said to support Inco ships’ decision to terminate the payment of compensation to Mr Barron. A copy is annexed and marked `C’.
11.After I had received the documents on 9th August 2005 I investigated the claim as best I could without being able to have a conference with Mr Barron. Because of other work commitments I was not able to travel to Launceston to attend Cosgrove Park Nursing Home to take instructions from Mr Barron. Mrs Bracken had advised me that she had no direct knowledge of the matters that I considered relevant to what appeared to be the reason that compensation payments had been stopped, namely that Mr Barron had made untrue and false declarations for the purposes of obtaining employment in the maritime industry.
12.Between 9th August and 3rd September 2005 I carefully perused the documents that had been sent to me by Middletons and some other documents that had been provided to me by Mrs Bracken. On 3rd September I concluded that Mr Barron had reasonable grounds to seek the reconsideration of the decision to terminate his payments of compensation. I had previously been advised by Mrs Bracken that if I reached the view that there was a reasonably arguable case to seek a reconsideration of her father’s claim for compensation that I should take whatever steps were necessary to bring that about.
13.The reason that there is a delay in seeking a reconsideration of the employer’s decision was because of the time that it took me to investigate the matter, obtain the documents and consider them, all without being able to take adequate instructions from Mr Barron. I was not concerned about time passing as I believed that there would be a meeting between Inco Ships and Mr Barron which a settle of his claim would be discussed. On 26th September 2005 Mr Leslie informed me that it had never been intended to discuss settlement of the case, it was just a courtesy visit and explanation.
14.The sources for my belief for the contents of this affidavit are Mrs Sheree Bracken and Mr Brian Barron and Mr Peter Leslie.”
20. The Tribunal has considered all of that evidence and finds the following facts to be of particular significance in explaining the delay in making the request:
(a)Mr Barron resides in a nursing home in Launceston, Tasmania. His injury has affected him both physically and mentally. He now uses a wheelchair for mobility.
(b)Mr Barron relies heavily on his daughter for assistance. She also resides in Launceston. Mr Barron’s solicitor is Hobart based.
(c)On 1 August 2005 the applicant’s solicitor sought certain documentary information from the respondent which was received on 9 August 2005. He then considered that and other material provided by Mrs Bracken and by 3 September 2005 concluded that the applicant should request a reconsideration. The request for a reconsideration and extension of time was sent by letter on that same date.
(d)The delay in making the request is not particularly lengthy (see for example Comcare v Willems (1996) 70 FCR 244 where the Tribunal extended time despite the request for reconsideration being 11 months out of time.) Here the delay was some 30 days between the expiration of the 30 day period provided for in s78(3)(b) of the Act and the date the request for reconsideration was made.
21. Although Mr Manuel did not challenge Mr Tremayne’s affidavit he did submit that for the delay to be properly explained Mrs Bracken, the applicant’s daughter whom he had appointed his attorney under a General Enduring Power of Attorney, should have been called to give evidence. He argued that the Tribunal should draw an adverse inference from the failure to call Mrs Bracken and relied on Jones v Dunkel 101 CLR 298.
22. The evidence is that Mrs Bracken made contact with Mr Barron’s solicitors as early as 8 July 2005. This was only 2 days after Mr Barron received notice of the determination. From that point in time onwards Mr Barron’s solicitors had carriage of the matter and were making due inquiries on his behalf. The steps taken by the solicitors are explained in Mr Tremayne’s affidavit. The Tribunal finds that in the particular circumstances of this application no inference of any significance can be drawn from the failure to call Mrs Bracken or to tender an affidavit from her. It should be borne in mind that the question as to when it is appropriate to apply the rule in Jones v Dunkel has to be considered in light of the reality that proceedings of the Administrative Appeals Tribunal are essentially inquisitorial in nature and in special circumstances the Tribunal itself can summons a witness to give evidence (see Re Bessey v Australian Postal Corporation (2000) 60 ALD 529 at 537.
23. The Tribunal finds that an acceptable explanation has been provided for the delay in requesting a reconsideration of the determination.
Would an Extension of Time cause Prejudice to the Respondent?
24. No persuasive arguments were advanced to satisfy the Tribunal that the respondent would suffer prejudice if time for requesting a reconsideration was extended.
25. Mr Manuel said at the hearing “the only prejudice to the respondent is that it is facing a claim but if this is rejected it would not be facing – there is no other material prejudice that we can identify to the respondent “.
26. It was argued, in my view correctly, that the mere absence of prejudice is not enough to justify the grant of an extension (see Hunter Valley supra p349). Clearly the other principles enunciated out by Wilcox J and any other relevant matters must also be properly considered.
Does the applicant’s Claim have Sufficient Merit to Justify it being Reconsidered?
27. Quite understandably the evidence before the Tribunal was insufficient to enable a determination of the ultimate merits of the applicant’s compensation claim. It is not necessary for the Tribunal to determine the merits, but to consider only whether the claim has sufficient merit to justify it being reconsidered (see Comcare v Russell Edward Smith DG6 of 1996 per von Doussa J).
28. There may be cases where there are such obvious weaknesses in the applicant’s case as to justify a refusal to grant an extension (see Lucic v Nolan (supra) p417).
29. The reason the respondent terminated compensation payments to the applicant is that it believed the applicant had made false statements in giving his medical history to doctors during medical examinations and also that he gave false answers in certain questionnaires. It also contends that, because of his state of health and the nature of the work he was to do, the risk of injury was increased. The respondent relies on both ss26 and 10(7) of the Act.
30. Mr Tremayne for the applicant indicated that the applicant would dispute that he gave false or misleading answers to medical practitioners or in questionnaires, but even if he did it would not, as a matter of law, amount to serious and wilful misconduct within the meaning s26 of the Act. It was argued that for Mr Barron’s conduct to amount to serious and wilful misconduct, there must be both a temporal relationship and causal relationship between Mr Barron’s earlier conduct and the stroke he suffered some 2 years later. A number of authorities were referred to by Mr Tremayne including Christopher Elvin v Comcare AAT No 12818 (19980; Hills v Brambles Holdings Ltd (Supreme Court of Tasmania No A20 of 1987) and Comcare v Calipari [2001] FCA 1534.
31. Mr Tremayne also argued that s10(7) of the Act would not apply as the applicant has suffered an “injury simpliciter” and not a disease. Counsel referred to Zickar v MGH Plastic Industries Pty Ltd 187 CLR 310 and Australian Postal Corporation v Simon Burch (1998) 42 FCA. In addition it was argued that no representations had been made about a stroke and therefore, again, s10(7) had no application.
32. Mr Manuel submitted that the evidence would show that Mr Barron had indeed made false statements. He argued that the applicant’s conduct amounted to a fraud and it was that fraud which caused him to be employed. It was also argued on behalf of the respondent that a stroke was not necessarily an “injury simpliciter”. Mr Manuel suggested that there were arguments to counter all of the applicant’s contentions.
33. As already mentioned, it is not appropriate for the Tribunal to conduct a full examination of the merits of this claim. The Tribunal however finds that on the evidence and arguments before it the claim by Mr Barron does have sufficient merit to justify extending time so that it can be properly reconsidered.
Is it Otherwise Fair and Equitable as Between the Parties or Between the Parties and any Other Persons Affected by an Extension of Time to be Granted?
34. The Tribunal notes that neither counsel raised any other specific matters relating to fairness and equity between the parties or between the parties and any other person who may be affected by an extension of time.
35. It seems to the Tribunal that, in the circumstances of this application, justice and fairness would be best served by allowing an extension of time. A decision not to extend time would obviously deny the applicant the opportunity to have the merits of his claim at least reconsidered under s78 of the Act.
Conclusion
36. The Tribunal finds that the applicant’s solicitor’s letter dated 3 September 2005 and addressed to the respondent was a proper request for an extension of time to request a reconsideration of the determination of 4 July 2005.
37. After carefully considering the evidence and submissions of counsel, the Tribunal concludes that it should exercise the discretion provided by s78(3)(b) of the Act and extend time to allow the applicant to request a reconsideration of the respondent’s determination dated 4 July 2005.
38. It is now apparent from the evidence before the Tribunal that the letter of 3 September 2005 did not really set out in detail the reasons for the request for reconsideration of the determination. To overcome that deficiency and any potential problems which may be caused by s79(1)(a) of the Act the Tribunal will extend time for a period of 28 days from the date of this decision. This would provide the opportunity for the applicant to forward to the respondent a further more detailed request. The respondent would then have a period of 60 days to properly reconsider the determination.
Decision
39. The decision refusing an extension of time in which to reconsider the determination of 4 July 2005 is set aside and the matter remitted to the respondent with a direction that time be extended under s78(3)(b) of the Act until 28 days from the date of this decision.
Costs
40. This decision is one to which s92 of the Act applies. Therefore it appears that the applicant is entitled to costs. I will however hear counsel further as to costs if an application is made within 14 days. If no application is made within that time I will order that the respondent pay the applicant’s costs of these proceedings as agreed or taxed and that order will be incorporated in this decision.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 5 May 2006
Date of Decision 19 May 2006
Counsel for the Applicant Mr G Tremayne
Solicitor for the Applicant Jackson and Tremayne
Counsel for the Respondent Mr R Manuel
Solicitor for the Respondent EMA Legal
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