Calliss and Australian Postal Corporation

[2008] AATA 556

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 556

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S 200600306

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOANNE CALLISS

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date1 July 2008

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

L HASTWELL
  (Senior Member )

CATCHWORDS

PRACTICE AND PROCEDURE – application for an extension of time in which to request a reconsideration of primary determination – applicant claims to have been unaware of time limitation – prejudice to respondent asserted – principles to be applied – extension of time refused – decision affirmed

Safety, Rehabilitation and Compensation Act 1988 s 62

Re Hewson and Australian Postal Corporation [1998] AATA 71
Hunter Valley Developments Pty Ltd & Others v Cohen [1984] 3 FCR 344
Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1
Comcare v A’Hearn [1993] FCA 498

REASONS FOR DECISION

1 July 2008   Senior Member L Hastwell  

1.      This matter involves an application to review a decision of a delegate of the respondent made on 15 September 2006 in which an extension of time to seek reconsideration of a determination dated 4 July 2005 was denied.

2.      The application for extension of time was made to the respondent by the applicant's solicitor on 11 August 2006.

3.      The time in which to seek a reconsideration of a primary decision is 30 days.  An extension of time can be granted in some cases.  In this case the request for an extension of time and for reconsideration was made some 13 months after the decision of the primary decision maker.

legislation

4. Section 62 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) provides as follows:

“62       Reconsideration of determinations

…

(2)A request to a determining authority to reconsider a determination made by it may be made by:

(a)      the claimant; or

(b)if the determination affects the Commonwealth—the Commonwealth; or

(c)if the determination affects a Commonwealth authority—that Commonwealth authority.

…

(3)      A request for reconsideration of a determination shall:

(a)      set out the reasons for the request; and

(b)be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.

…”

the hearing

5. The applicant gave evidence at the hearing. The T documents filed under s 37 of the Administrative Appeals Tribunal Act 1975 in this matter and in matter S 200600307 were received into evidence, as well as a number of other exhibits, and where relevant will be referred to.  An affidavit of Ms Sarah Duffield (Exhibit R1) was tendered by the respondent to provide further support to the respondent’s assertion of prejudice if the extension of time were granted.

6.      The applicant submitted an injury report to her employer on 17 June 2005 in which she sought compensation for “stress/anxiety/depression” arising out of long-term harassment and bullying in the workplace.  That claim was rejected by a primary determination of the delegate on 4 July 2005.  The allegations of bullying and harassment were investigated at the time, and, as a result of a finding that there were difficulties in relationships among a number of staff in the area that the applicant was working in, the applicant was then transferred to another office.

7.      The applicant took approximately one day of sick leave in June 2005 for which she produced a medical certificate alleging stress and anxiety as the reason for taking time off work.  She took four more days of sick leave in the next month which were taken as sick leave, but no specific illness was asserted and no claim for compensation was made for those days off.

8.      Apart from that time off, and then some individual days of sick leave over the next few months, she continued to work with no further claim of stress or anxiety. She sustained a back injury in April 2006 for which she claimed compensation on 25 April 2006.

9.      The applicant presented a series of medical certificates to the respondent in the weeks following the back injury.  The first eight medical certificates covering the period 23 April 2006 until 29 May 2006 mentioned only the back injury as the reason she could not return to work.

10.     On 18 May 2006 she was seen by an occupational physician, Dr Geoffrey Graham, at the direction of the respondent.  She did not mention any stress related issues in that interview and the focus of investigation was on her back.  Dr Graham’s report is at T12 (S 200600307).

11.     On 31 May 2006 her general practitioner, Dr Rositano, for the first time included “adjustment order with depressed mood” as one of the reasons the applicant was unfit to return to work (T4/20 (S200600307)).  No amended claim was lodged by the applicant to include this condition and the respondent continued to investigate the back claim which included requesting a report from both of the general practitioners who had written medical certificates for her, being Dr Rositano and Dr Nguyen.

12.      On 26 June 2006 the applicant’s claim for lumbar back injury was rejected by the respondent.

13.     On 11 August 2006 there was a request made by a lawyer on the applicant’s behalf for a redetermination of the decision of 4 July 2005 (T14 (S 200600306)).  The reasons for her failing to seek a redetermination were put in that letter in the following terms:

“My client did not seek a reconsideration of [sic] the time because she returned to work and hoped that the matter would have resolved.  She is now in a situation where because of another injury at work her condition appears to have been exacerbated by this pre-existing condition which was the subject of a claim at the time but which claim was not pursued when initially rejected.”

14.     The applicant's evidence was that the reason that she did not seek reconsideration in 2005 was because she did not know she could appeal at that time and she thought that the transfer to Elizabeth was how the employer had dealt with the situation.

15.     She confirmed that correspondence of 4 July 2005, which advised her of the adverse decision and which included a notice explaining her right to apply within a defined time framework for reconsideration (T11 (S 200600306)), had been sent to her correct address by the respondent, but she could not recall ever seeing the letter and notice. When pressed as to why her mail had not reached her she could only suggest that as she had been living with her boyfriend he was not always reliable about bringing the mail to her.

16.     She said that after injuring her back in 2006, she obtained legal advice and it was then that she obtained a copy of her file and realised she could seek review of the 2005 decision.

17.     She agreed in cross-examination that she had seen her general practitioner on 35 occasions between June 2005 and April 2006 and there was no record of any complaint of suffering from stress or anxiety on any of those occasions.  She also acknowledged that she suffered from a number of other non-work related ailments for which she had sought attention during that period.

other evidence

18.     The applicant submitted a report of Dr Rositano dated 16 January 2007 (Exhibit A7), which focused mainly on her back injury and in which he commented, inter alia:

“She definitely has an Adjustment Disorder.  This is a result of her frustrations at what she perceives has been unfair treatment in not determining her claim, causing her financial hardship and denying her treatment.”

19.     Dr Nguyen’s notes for the relevant period were available and received as Exhibit A5.

20.     An affidavit of Sarah Duffield (Exhibit R1) advised that two of the individuals that were involved in the applicant’s harassment allegations in May 2005 have since resigned their employment.

consideration of the principles to be applied when considering an application for an extension of time

21.     The relevant provision in the Act does not provide any guidelines as to how the discretion to extend time for reconsideration should be exercised.

22. The principles to be considered in an extension of time application under s 62 of the Act are discussed in the AAT decision of Re Hewson and Australian Postal Corporation [1998] AATA 71.

23. In that case Senior Member Allen, in dealing with an application under s 62 of the Act, reviewed the authorities with respect to the discretion to extend time in some instances and under some pieces of legislation. He considered the general principles as enunciated in the judgement of Wilcox J in Hunter Valley DevelopmentsPty Ltd & Others v Cohen [1984] 3 FCR 344 and the High Court decision in Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1.

24.     He summarised the relevant considerations upon such an application as follows:

·Proceedings commenced outside the prescribed period will not be entertained, however, an extension of time will be granted if it is proper to do so.

·It is not incumbent upon an applicant for an extension of time to give an explanation for the delay, but normally it is to be expected that such an explanation will be given (Comcare v A’Hearn [1993] FCA 498).

·There is no onus of proof on the applicant in this Tribunal.  Nevertheless, the applicant for an extension of time must place material before the Tribunal to justify the exercise of the discretion in his or her favour.

·The Tribunal must consider whether the applicant took any action to make the decision-maker aware that the decision was being contested.

·Is there prejudice to the respondent if the extension of time is granted?

·Is there going to be any wider prejudice to the general public?

·What are the potential merits of the substantial application?

·What is the fairness of granting an extension of time as between the applicant and other persons in a like position?

contentions

25.     The respondent contends that it is prejudiced if the applicant is now given an extension of time in which to have the primary determination reconsidered.  They have lost the opportunity to have the applicant fully medically investigated at the time of the alleged injury.  Witnesses are potentially no longer available and even if witnesses can be found, the lapse of time makes it very difficult for them to be expected to give clear evidence of what occurred at the time.

26.     The respondent points to a myriad of possible causative issues in this case and for the respondent to now try to investigate the claim and tease out the causative factors is almost impossible.

27.     The respondent refers  to Dr Rositano’s report (Exhibit A7) and his suggestion that her adjustment disorder arose from

… her frustrations at what she perceives has been unfair treatment in not determining her claim, causing her financial hardship and denying her treatment.”

28.     The applicant contends she should be allowed to proceed and that any deficiencies in the evidence are caused by the fact that the respondent did not fully investigate the claim at the time.  The applicant says that she is prejudiced if not given the extension and that the relevant legislation is remedial and should be interpreted in a beneficial manner to the worker.

the tribunal’s findings and conclusions

29.     There is no dispute about many of the facts in this matter.  They are set out in the evidence and are not disputed by either party.  The applicant is well out of time in seeking reconsideration.  Nevertheless, the Tribunal is not satisfied that the applicant was being entirely frank and truthful about her awareness of a decision having been made in 2005.

30.     It is the Tribunal’s view that the weight of the evidence points to the applicant having received the letter of 4 July 2005 that told her of the primary decision.  Her own solicitor, in his letter seeking an extension of time does not put forward any suggestion that she had never received the letter and notice and the applicant’s evidence about a “missing letter” was vague and unsatisfactory.

31.     The Tribunal is satisfied that she did receive that letter and that because she had achieved a transfer out of the workplace that was causing her so many difficulties; she accepted that decision at the time.

32.     Nevertheless that is not necessarily conclusive of the matter.

33.     Prima facie, the merits of her claim do not appear strong.  Dr Rositano’s report upon which she relies is not particularly helpful to the merits of her substantive claim and the other evidence is also unhelpful in that the lack of a subjective report of psychiatric complaint for almost a year after June 2005, despite many medical appointments, would make it difficult for a causative link to be established other than upon her own evidence.

34.     The Tribunal notes that in this case the injury alleged is a psychiatric injury.  Psychiatric evaluation is complex at the best of times and for the respondent to now be asked to address the issue of whether the applicant suffered psychiatric injury some three years ago puts the respondent in an almost impossible position from an evidentiary perspective. 

35.     It appears that at the time of the June 2005 claim there was an active investigation being carried out into the applicant’s claim of workplace bullying and harassment.  Some investigation was carried out by the respondent and, when the applicant lodged her claim, the respondent sought reports from the applicant’s general practitioner, but no report was forthcoming at the time.  She was referred to a psychologist.  Workplace bullying appeared to be the problem.

36.     Action was taken to move her to a new workplace where she would not be in contact with the persons with whom there was conflict.  The respondent had every reason to believe that once that transfer took place in July 2005, the applicant would have no further problems of stress, anxiety and depression and, as she made no further complaint, no further investigation took place. 

37.     When the applicant did make the complaint in 2005, she was asked to provide further information with respect to the claim, but she did not provide anything further prior to the primary decision-maker making the decision on 4 July 2005.  There is a memo at T9 (S 200600306) indicating that 4 July 2005 which was the last day on which the primary decision-maker could make a decision and that no further information had been received.  The decision was then made to reject her claim for stress, anxiety and depression.

38.     There was no further mention or even suggestion of a psychiatric injury during that year and the applicant continued in her new workplace ostensibly without further problem.  Her visits to her general practitioner over the ensuing months resulted in no report of a psychiatric problem.

39.     The Tribunal notes that two of the key witnesses who were involved in the workplace where the applicant was alleging harassment and bullying have since left their employment. 

40.     The respondent has lost the opportunity to have the applicant fully investigated at a time that had some contemporaneity with her claim.  A psychiatric complaint of “stress anxiety and depression” is very hard to investigate and verify in hindsight, particularly when there appears to be no corroborative evidence available.

41.      Senior Member Allen in the matter of Re Hewson commented:

“23.  In my opinion the major factor in this matter is that prima facie proceedings commenced outside the limitation period ought not to be entertained. The Respondent is entitled to pursue its business on the assumption that claims not pursued within the time limits laid down in the legislation can be regarded as finalised. This principle must give way if an applicant is shown on the materials adduced by either party to have a good case of succeeding in the action and there is little prejudice to the Respondent. …”

42.     In this case the applicant’s case is not strong; there has been a significant lapse of time before she has sought to re-open the matter.  There is considerable prejudice to the respondent in now attempting to face the applicant’s case because of the nature of the injury that she alleges, and the fact that the respondent was not able to make contemporaneous medical investigations at the time.

43.     It is the Tribunal’s view that in all the circumstances there is significant prejudice to the respondent if the applicant is granted this extension.

44.     For all of the above reasons the Tribunal affirms the decision under review.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member
L Hastwell

Signed:         .....................................................................................
  Associate

Date of Hearing  21 February 2008
Date of Decision  1 Julyl2008

Solicitor for the Applicant          Mr D Wilson

David H Wilson, Lawyer
Counsel for the Respondent     Mr M Roder
Solicitor for the Respondent     Sparke Helmore