Bernard Dawson and Thales Australia Ltd
[2012] AATA 318
•28 May 2012
[2012] AATA 318
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/0929
Re
Bernard Dawson
APPLICANT
And
Thales Australia Ltd
RESPONDENT
DECISION
Tribunal Deputy President R P Handley
Date 28 May 2012 Place Sydney Decision Summary
The application for an extension of time is refused.
........[sgd]....................................
Deputy President R P Handley
CATCHWORDS
APPLICATION FOR EXTENSION OF TIME – worker’s compensation claim – injuries sustained in the course of employment – in relation to granting an extension of time, whether it is reasonable in all the circumstances to do so – unsatisfactory explanation provided – delay not attributable to Applicant – solicitor conduct – extension of time application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Cassar and Telstra Corporation Ltd [2011] AATA 728
Re Akram El Salameh and Australian Postal Corporation [1991] AATA 153
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs & Environment (1984) 3 FCR 344
Re Petrou and Australian Postal Corporation [1992] AATA 26
Rocco Pulitano and Telstra Corporation Ltd [1993] AATA 234
Torian Wireless Ltd and Austrade [2011] AATA 947
REASONS FOR DECISION
Deputy President R P Handley
On 7 March 2012, the Applicant, Mr Dawson, applied to the Tribunal for an extension of time for making an application to the Tribunal for review of a decision of Thales Australia Ltd made on 4 January 2010.
Under s 29(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), the prescribed time for making applications for review is 28 days after notification of the decision. However, s 65(3) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) substitutes a period of 60 days in relation to reviewable decisions under the SRC Act. A “reviewable decision” is defined in s 60(1) of the SRC Act to include determinations on requests for reconsiderations under s 62.
Section 29(7) of the AAT Act permits the Tribunal to grant an extension of time if satisfied that “it is reasonable in all the circumstances to do so”. This is an unconfined discretion, but the Tribunal is guided in exercising its discretion by a number of considerations which are usefully summarised by Wilcox J in Re Hunter Valley Developments Pty Limited v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349 (the Hunter Valley Developments decision). These considerations include whether the Applicant has given a reasonable explanation for the delay, whether the Applicant made the Respondent aware that the finality of the relevant decision was being contested, prejudice caused to the Respondent by the delay, any adverse impact that might be caused to others, whether the substantive application has merit, and considerations of fairness with regard to others and the public interest.
THE HISTORY OF EVENTS
Mr Dawson is now aged 56. On 15 September 2009, he lodged a claim for compensation in respect of shoulder injuries sustained while working as a sheet metal worker at the Garden Island dockyards in Woolloomooloo in June and September 2009. His general practitioner, Dr Royale Crooks, diagnosed Mr Dawson’s condition as “bilateral impingement syndromes to shoulders”.
On 10 November 2009, the Respondent decided that it was not liable to pay compensation for this injury. This decision was affirmed after a reconsideration on 4 January 2010 and a letter to this effect was sent to Mr Dawson attaching a notice of his right to seek a review of this decision by the Tribunal. In response to a letter from Mr Dawson’s then solicitor, Michael Conn of Teakle Ormsby Conn Lawyers, dated 13 January 2010, on 22 January 2010, the Respondent wrote to Teakle Ormsby Conn enclosing a copy of the reconsideration decision. On 18 February 2010, Mr Conn was suspending from practising as a solicitor and a manager was appointed to run Teakle Ormsby Conn’s practice.
The last day for the filing of an application for review by the Tribunal within the prescribed time of 60 days was 5 March 2010. On 8 March 2010, the Respondent wrote to Mr Dawson noting that because it had denied liability for his injury, medical expenses related to his claim were not payable by the Respondent and returning the accounts for medical expenses to Mr Dawson for settlement with the appropriate provider.
With effect from 6 May 2010, Warren Mark Krass of Cohen and Krass Lawyers and Accountants (Cohen and Krass), was appointed by the Law Society to manage the practice of Teakle Ormsby Conn. On 25 May 2010, Mr Krass received instructions to act from Mr Dawson. On 12 July 2010, Mr Krass wrote separately both to the CGU Self Insurance Services (CGU) which, at the time of the reviewable decision, was the Respondent’s workers compensation insurer, and also to the Tribunal seeking an extension of time for filing an application for review. In both letters, the person to whom the letter is addressed is Sharon Coleman who was a CGU employee. It appears no formal application for review or for an extension of time was filed in the proper form in the Tribunal. The Tribunal has no record of having received Mr Krass’s letter dated 12 July 2010.
Mr Krass wrote to the Respondent, through Barbara McKinnel, the Respondent’s Claims and Fitness for Work Manager, in a letter dated 3 August 2010. The letter seeks an extension of time, and states that Mr Krass received a phone call from Ms Coleman on 27 July 2010, telling him that CGU was no longer acting on behalf of the Respondent and advising he contact the Respondent directly. An affidavit from Ms McKinnel dated 3 May 2012, and provided by the Respondent, states that on 5 August 2010 she telephoned Mr Krass in relation to his letter dated 3 August 2010 (this is confirmed by a copy of her file note in respect of this telephone call, which states she left a message for Mr Krass to call back). Ms McKinnel’s affidavit further states that she did not receive a return telephone call from Mr Krass or anyone else in his office and that, after a few weeks, in view of the fact that no further communication was received from Mr Krass’s office, she returned the file to her file room.
Mr Krass has provided an affidavit dated 3 May 2012. He states that he received no response from, it appears, either the Tribunal or Ms McKinnel in respect of his letters of 12 July 2010 and 3 August 2010. From August 2010 to December 2010, he employed a solicitor, Adriana Bedon, whom, he states, had carriage of Mr Dawson’s matter during her employment. There was, however, no activity on the file during this period. In January 2011, he employed another solicitor, Julia Catanzariti, who took over carriage of the file. Mr Krass states that on 2 June 2011 counsel was briefed and, on 29 February 2012, a conference was held with counsel and Mr Dawson. Mr Krass provides no evidence of anything else being done in relation to the matter in the intervening nine months. Thereafter, on 7 March 2012, an application for review and an application for an extension of time were filed in the Tribunal.
In his affidavit, Mr Krass states that at all times Mr Dawson left the conduct of his matter with his solicitors:
31. Upon my appointment by the Law Society, I acted promptly to deal with Mr Dawson’s case by seeking his instructions to act and writing relevant letters to all relevant parties.
32. In June 2010 Mr Dawson returned to normal duties with Thales.
MR DAWSON’S EVIDENCE
Mr Dawson gave oral evidence at the hearing. He confirmed that he returned to normal duties in June 2010 but prior to this was on light duties for about six months. He has now worked for the Respondent for about 13 years.
Mr Dawson said he was assisted by Dr Crook in seeking a reconsideration of the decision to refuse his claim for compensation. Dr Crook typed the letter of 7 December 2009 asking for the decision to be reviewed, which Mr Dawson signed and delivered to the Respondent’s office at Garden Island. After he received the reviewable decision, Mr Dawson phoned Teakle Ormsby Conn and asked what was going on with his matter. He spoke with a secretary, ‘Jan’, who told him his matter was being taken care of. Mr Dawson said after hearing from his physiotherapist that Mr Conn had lost his practising certificate, he phoned again and spoke with Jan who reassured him that his matter was in hand.
Mr Dawson said that, having received a letter from Mr Krass’s firm in May 2010, he phoned and again spoke to Jan who arranged an appointment for him to see Mr Krass. When he saw Mr Krass on 25 May 2010, Mr Dawson confirmed that he wanted Mr Krass to act for him. Mr Krass said he had to “reapply” and Mr Dawson assumed that everything would be OK. Thereafter, he contacted Cohen and Krass about every three months. Initially, he continued to speak with Jan, then with Ms Bedon and later with Ms Catanzariti. Ms Catanzariti also told him that he had to “reapply” but he understood that the necessary steps were being taken.
SUBMISSIONS
Mr Moffet, for Mr Dawson, said Mr Dawson’s claim is for one week’s total incapacity in September 2009, partial incapacity between September 2009 and June 2010, and medical expenses including approximately $4,400 owed for physiotherapy. Mr Moffet said it is clear from Mr Dawson’s evidence that he is not sophisticated or legally minded and was not aware of the 60 day period within which applications to the Tribunal must be lodged.
Mr Moffet referred to the decision of the Tribunal in Rocco Pulitano and Telstra Corporation Ltd [1993] AATA 234 and the indicia to be considered in exercising the Tribunal’s discretion under s 29(7) of the AAT Act identified by Wilcox J in the Hunter Valley Developments decision. Mr Moffet submitted that, nevertheless, the Tribunal has a broad discretion and there is no mandatory requirement for the exercise of that discretion. He denied, as suggested by the Respondent, that there needed to be a satisfactory explanation for the delay.
Mr Moffet noted that in early February 2010, Mr Conn was still attending to Mr Dawson’s file, and said the evidence suggests Mr Conn would have applied for a review by the Tribunal within the prescribed 60 days had his practising certificate not been suspended. It should have been clear to the Respondent that Mr Dawson was not resting on his rights from the letters and telephone calls in late 2009 and 2010, and from his continuous checking that progress was being made in his matter and Mr Krass’s letters of 12 July 2010 and 3 August 2010.
Mr Moffet said there is no evidence of any prejudice to the Respondent as a result of the delay. In any event, where prejudice is claimed, it is a matter of weighing the prejudice to both parties. In this instance, Mr Dawson’s entitlement to incapacity payments ceased in June 2010. Mr Moffet submitted that Mr Dawson was the victim of circumstances arising from the turmoil in his first lawyer’s offices and, most recently, of delay by his current lawyers, and that the “sins” of his lawyers should not be visited on Mr Dawson who acted reasonably throughout.
Mr Polin, for the Respondent, said it is clear that Mr Dawson always knew he had to apply for a review. For example, the letter from Ms McKinnel dated 8 March 2010 should have alerted him to the fact that the time for seeking a review had expired. Mr Polin said that there is no doubt that in July 2010 Mr Krass was aware that an extension of time was required, yet he failed to follow up the letter to the Tribunal dated 12 July 2010 or the letter to the Respondent dated 3 August 2010. No explanation has been given for the lack of action being taken in relation to the matter between August 2010 and January 2011 when Ms Bedon had carriage of the file or between January and June 2011 when Ms Catanzariti had carriage. Moreover, there is no explanation for the nine month delay between counsel being briefed in June 2011 and a conference being held in February 2012.
Mr Polin said that, overall, there is no explanation for delays over a period of one year and nine months, or for the 82 weeks it took Mr Krass’s firm to lodge an application for an extension of time after writing letters on 12 July 2010 when he was clearly aware of the need for such an extension. Mr Polin also suggested that Mr Dawson should take some responsibility for the delays given that he should have been aware of the need to apply for a review since at least early January 2010.
Referring to the other indicia set out by Wilcox J in the Hunter Valley Developments decision and, in particular, to the merits of the application, Mr Polin submitted that the decision in respect of which a review is sought is a well-structured, well-reasoned decision relying on the report of Dr Stephen Potter, Rheumatologist, dated 13 October 2009, and also drawing support from the report of Mr Dawson’s treating specialist, Professor George Murrell. Professor Murrell, in his report dated 25 November 2009, stated there is a clear temporal relationship to employment in relation to the right shoulder, but that it was more difficult to attribute the condition of Mr Dawson’s left shoulder to the alleged work injury. With respect to prejudice, Mr Polin submitted that there is always prejudice to the Respondent with delay and the passing of time.
Mr Polin referred the Tribunal to a number of decisions of the Tribunal in which extensions of time have been sought. He noted that in Torian Wireless Ltd and Austrade [2011] AATA 947, at [9], the Tribunal noted that the applicant had been unable provide any satisfactory explanations for the delay. In Cassar and Telstra Corporation Ltd [2011] AATA 728, at [27], the Tribunal commented on the employer/insurer being entitled to rely on the finality of a decision once the time prescribed for making an application for review has passed, and not being subject to the expense of having to continue to address further applications. In the earlier decision of Re John Petrou and Australian Postal Corporation [1992] AATA 26 (Petrou), at [15], the Tribunal, having made a similar comment, suggested that where the respondent had received no communication from the applicant for over two years, the respondent ought to be able to consider the matter closed except in the most unusual circumstances.
CONSIDERATION
As I have already stated, s 29(7) of the AAT Act permits the Tribunal to grant an extension of time if satisfied that it is reasonable in all the circumstances to do so. However, the prima facie principle is that proceedings commenced out of time should not ordinarily be entertained. Time constraints on making an application for review are imposed for good reason in permitting parties to rely on the finality of decisions.
I have had regard to the considerations identified by Wilcox J in the Hunter Valley Developments decision. What stands out in Mr Dawson’s case is the long delays in the handling of his matter for which his solicitors appear to be entirely responsible. Having heard Mr Dawson give evidence, I accept that he was not at fault. While he appears to have been aware of the need to lodge an application for review, he had instructed solicitors to handle the matter for him and he relied on them to pursue his claim. First, it was Mr Conn of Teakle Ormsby Conn who was suspended from practice at the time he might otherwise have lodged Mr Dawson’s application for review. Then there was Mr Krass of Cohen and Krass who took over the management of Mr Conn’s practice and received instructions to act from Mr Dawson. Mr Dawson’s evidence is that he made regular contact with his solicitors to ask about progress with his matter and received repeated assurances that all was in hand. Whilst he was apparently informed, according to his understanding, that a new application would have to be made, he relied on his solicitors to do this and there was no reason for him to suspect that this could not be effected.
Mr Dawson’s still current solicitors, Cohen and Krass, have failed to provide the Tribunal with any reasonable explanation for the delay in their lodging with the Tribunal an application for review of the reconsideration decision and in pursuing an application for an extension of time. Essentially, there was next to nothing done on the file between 12 July 2010 (the date of Mr Krass’s letters – see above, paragraph 7), when the time for the making of an application for review was already four months out of time, of which Mr Krass was clearly aware, and 29 February 2012 when a conference was held with counsel.
Despite Ms McKinnel’s follow up phone call on 5 August 2010 and leaving a message for Mr Krass to phone her to which he did not respond, there is no evidence of the Respondent having heard anything further from the Applicant from the time of receiving Mr Krass’s letter dated 3 August 2010 and being notified of Mr Dawson’s application being lodged in the Tribunal in March 2012. In my view, when a reasonable time had passed after 5 August 2010 and Ms McKinnel had heard nothing further from Mr Krass, it was reasonable for the Respondent to assume that the finality of the decision was no longer being contested.
No evidence has been provided of any specific prejudice to the Respondent as a result of the delay, but I accept that, inevitably, dealing with a claim that is now two and a half years old in circumstances where the Applicant has no long since returned to work on normal duties (from June 2010) will inevitably pose difficulties, albeit for both parties. There is no evidence of any specific effect on others by reason of the delay, but as a matter of fairness to others and with regard to the public interest, where there is a prescribed time within which particular action should be taken, such time constraints should be adhered to unless it is reasonable in all the circumstances to grant an extension of time.
With regard to the merits of the application for review, the only evidence I have been provided with is the WorkCover medical certificates completed by Mr Dawson’s general practitioner, Dr Crooks, and the correspondent between the Respondent and Mr Dawson or his solicitors, including the reviewable decision letter dated 4 January 2010. A review of the statement of reasons for the reviewable decision indicates that the relevant medical evidence was taken into consideration by the decision-maker but I accept that an arguable case could probably be made in such a case.
In conclusion, I am not satisfied that I should grant an extension of time. While I accept that Mr Dawson was not personally at fault for the delay, his solicitors undoubtedly were and have given no reasonable explanation for their failure to progress Mr Dawson’s claim. While Mr Moffet submitted that the “sins” of Mr Dawson’s solicitors should not be visited upon him, there comes a point in time when, equally, as Deputy President McMahon pointed out in Re Akram El Salameh and Australian Postal Corporation [1991] AATA 153, at [12], neither should they be visited upon the respondent:
It was said that the applicant should not suffer because of his solicitors’ negligence. This may well be so. However neither should the respondent. The solicitors may be the appropriate parties to shoulder the burden of any loss.
Ultimately, as was recognised in Petrou, it is a matter of whether there is an acceptable explanation for the delay. In Mr Dawson’s case there is not, and for this reason I have decided not to exercise the Tribunal’s discretion in s 29(7) of the AAT Act to grant an extension of time.
DECISION
The application for an extension of time is refused.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President R P Handley.
.......[sgd].................................................................
Associate
Dated 28 May 2012
Date of hearing 4 May 2012 Date final submissions received 4 May 2012 Counsel for the Applicant Mr S Moffet Solicitors for the Applicant Cohen and Krass
Counsel for the Respondent
Solicitors for the Respondent
Mr J Polin
Curwoods Lawyers
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