Cassar and Telstra Corporation Limited
[2011] AATA 728
•20 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 728
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/3770
GENERAL ADMINISTRATIVE DIVISION DIVISION ) Re Joseph Cassar Applicant
And
Telstra Corporation Limited
Respondent
DECISION
Tribunal Ms N. Isenberg, Senior Member Date20 October 2011
PlaceSydney
Decision The Tribunal decides not to exercise the discretion to grant an extension of time. ..................[sgd]........................
Ms N. Isenberg, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE - Application for extension of time - Delays in making application to Respondent for reconsideration - Explanation for delay - Prejudice to the Respondent - Merits of application - Extension of time refused.
LEGISLATION
Administrative Appeals Tribunal Act 1975, Section 29
Safety, Rehabilitation and Compensation Act 1988, Section 65
CASES
Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344
Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
Comcare v A’Hearn (1993) 45 FCR 441
Secretary, Department of Social Security v Van Den Boogaart (1995) 37 ALD 619
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Petrou v Australian Postal Corporation (1992) 25 ALD 407
Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451
REASONS FOR DECISION
20 October 2011 Ms N. Isenberg, Senior Member 1. Applications for review of reviewable decisions by this Tribunal under the Safety, Rehabilitation and Compensation Act1988 (“the Act”) must be lodged within 60 days of receipt of the decision complained of: section 65(4) of the Act. Mr Cassar seeks, pursuant to section 29(7) of the Administrative Appeals Tribunal Act1975, an extension of time for lodging his application for review in relation to a reviewable decision made by Telstra on 9 February 2011.
2. I had the benefit of only the application for review attaching the decision under review and written submissions by the solicitor for the applicant. Both parties, however, made oral submissions.
BACKGROUND
3. Mr Cassar suffered a back injury (disc protrusion L4/5) at work on 12 April 2001. The claim was accepted on 20 April 2001.
4. Compensation for permanent impairment was claimed on the basis of reports by Dr M Guirgis, orthopaedic surgeon, dated 30 April 2008 and 24 July 2008. An MRI scan on 31 August 2007 however led Dr Maxwell on 27 October 2008 to opine that the disc protrusion "had essentially resolved." As a result, Allianz Australia (Allianz), Telstra’s insurer, on 12 January 2009 determined that Mr Cassar had no entitlement. The request for reconsideration was upheld by the Reconsideration Officer on 23 January 2009.
5. On 26 March 2010 a further MRI was said to show the L4/5 disc protrusion had increased in size since the previous scan, although this was not clear from the extract available in the decision under review.
6. Mr Cassar’s solicitor said he was first instructed by Mr Cassar in October 2009. The solicitor wrote to Allianz on 25 May 2010 enclosing the 26 March 2010 MRI report and the continuing WorkCover Medical Certificates and requested a review of his claim for weekly payments, treatment costs and lump sum entitlements. Another report by Dr Guirgis, dated 11 August 2010 was provided to Allianz.
7. No reply was said to have been received from Allianz, and Mr Cassar wrote, apparently again, formally requesting reconsideration, on 15 October 2010. A determination was ultimately made by Allianz, dated 2 December 2010 rejecting the further evidence and preferring Dr Maxwell's 27 October 2008 opinion.
8. The determination was received on 10 December 2010 and reconsideration was requested on 21 December 2010. Allianz’s reconsideration was notified by decision dated 9 February 2011
9. A request dated 3 March 2011 was made by the solicitors to Allianz pursuant to section 59 of the Act for all documents relating to the claim. Under cover of letter dated 25 March 2011 a copy of documents, said to be in a jumbled condition, was provided by Allianz. The solicitors complained to Allianz on 21 April 2011.
10. An appointment was subsequently arranged, on 30 June 2011 with Dr M Jones (Specialist Radiologist) but he could not see Mr Cassar until 28 July 2011. Curiously, a letter of instruction to the doctor was said to be dated 15 August 2011. Dr Jones provided a report dated 4 September 2011 which was served on Allianz on 8 September 2011.
PRINCIPLES TO BE CONSIDERED IN EXTENSION OF TIME APPLICATIONS
11. The principles to be considered in extension of time applications were set out in Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 at 348 to 349, and adopted in Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309. Each is considered below:
(A) PRIMA FACIE PROCEEDINGS COMMENCED OUTSIDE THE PRESCRIBED PERIOD WILL NOT BE ENTERTAINED, EXCEPT IF IT IS PROPER TO DO SO.
APPLICATION OUT OF TIME
12. The application for review by this Tribunal was filed on 8 September 2011, and is out of time by almost four months.
EXPLANATION FOR DELAY
13. The Full Federal Court in Comcare v A'Hearn (1993) 45 FCR 441 stated (at 444) that although it is to be expected that an explanation for the delay will normally be given, there is no rule that such an explanation is an essential pre-condition to the granting of an extension of time. Nonetheless, in Secretary, Department of Social Security v Van Den Boogaart (1995) 37 ALD 619 the Federal Court regarded the lack of a satisfactory explanation for the delay as the matter which most strongly weighs against the grant of an extension of time.
14. From the submissions on Mr Cassar’s behalf, he apparently first sought legal advice from his present solicitors in October 2009. It is unknown what was done on his behalf, but, I am informed, that Mr Cassar’s solicitors made some enquiries of Dr Guirgis. The solicitors then obtained a fresh MRI report which was dated 26 March 2010. Several weeks later, in May 2010, it seems the solicitor endeavoured to have Allianz review Mr Cassar’s claim for weekly payments, treatment costs and lump sum entitlements. Another report by Dr Guirgis, dated 11 August 2010, was subsequently provided to Allianz.
15. It is true that there was some delay in Allianz making its determination – not until 10 December 2010. The reconsideration request of 21 December 2010 was attended to by early February 2011. From that time the solicitors should, in the ordinary course, have been considering whether to lodge an application for review.
16. Nearly a month later, on 3 March 2011, the applicant’s solicitors requested a copy of all documents relating to the claim and these were provided, albeit in a jumbled condition on 25 March 2011. It was not clear to me why Mr Cassar’s solicitors felt it necessary to await the papers before considering the application for review, especially as they had, by that time, had conduct of the matter for about 18 months.
17. On 21 April 2011, Mr Cassar’s solicitors complained to Allianz about the state of the papers.
18. Another two months passed before an appointment was arranged for another MRI. It was unclear to me why a decision could not have been made about an application for review and a decision was made to await the belatedly-arranged MRI. There is no requirement that all of an applicant’s evidence be filed at the time an application for review is lodged. Indeed, the Tribunal’s procedures anticipate that this will not occur.
19. In all, it was entirely unclear to me from the applicant’s solicitor’s submissions why there had been delay in filing the application for review in early April 2011, as was required. Mr Cassar’s solicitor was ultimately frank in admitting the delay was his responsibility, and not Mr Cassar’s.
20. In Comcare v A’Hearn the delay on the part of the solicitor was found to amount to an acceptable explanation for delay. In that matter though there was evidence that Mr A’Hearn had made enquiries of his solicitors as to progress some 18 months after instructing them. In this matter, there was no evidence in as to what follow up action, if any, Mr Cassar had taken with the solicitors between the time he engaged that firm and when this application was filed.
21. As to the conduct of Mr Cassar’s matter on the part of his solicitor, I make no further comment other than to note that Mr Cassar may wish to have the level of service that was provided to him explored elsewhere.
(B) DID MR CASSAR REST ON HIS RIGHTS OR DID HE TAKE ACTION TO MAKE TELSTRA AWARE THAT THE DECISION WAS BEING CONTESTED?
22. The background and observations above set out a summary of developments in the matter after the solicitors were engaged.
23.
As far as Telstra and its insurer were concerned, the matter was finalised and for four months it was entitled to that view. It had received no communication from Mr Cassar or his solicitors that an application for review was being considered and that, for example, some delay might occur while further evidence was obtained to test the prospects of success. One might speculate that, in those circumstances, in the interests of minimising costs to all parties, that a pragmatic approach might have been adopted and no objection taken to late filing. Instead, aside from the request of 3 March 2011 for the documents relating to the claim, the only communication
Allianz received was a tirade from the Mr Cassar’s solicitors about the state of the documents which had been provided.
(C) IS THERE ANY PREJUDICE TO TELSTRA THAT WOULD BE CAUSED BY GRANTING THE EXTENSION OF TIME?
24. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, at 551, McHugh J stated:
“… 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. …
... 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...
... The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.”
25. Telstra did not submit that it would be actually prejudiced in the event that Mr Cassar is granted an extension of time, and Telstra bears the onus of establishing an actual prejudice in that regard: Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451. Indeed, Mr Kelly conceded that Telstra was not prejudiced in terms of evidence or witnesses, but only to the extent that it was entitled to consider the matter closed.
(D) ANY WIDER PREJUDICE TO THE GENERAL PUBLIC IN TERMS OF DISRUPTIONTO ESTABLISHED PRACTICES IS RELEVANT.
26. In Petrou and Australian Postal Corporation (1992) 25 ALD 407, to which I was referred, the Tribunal stated at 411:
“As stated in Hunter Valley Developments case, it is not only prejudice between the parties which is relevant but the wider public interest. In Lucic's case [Lucic v Nolan (1982) 45 ALR 411] at 416 Fitzgerald J said: “Other matters of proper public concern… include the need for finality in disputes, the efficient use of public resources, the appropriate allocation and expenditure of public funds.”
… As Deputy President McMahon stated in El Salameh and Australian Postal Corporation (N91/209, 26 June 1991, unreported) at p 6: "Any delay, of course, is prejudicial. the more time that elapses between the events to be examined and the date of 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"….
… 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 circumstances where the respondent had had no communication from the applicant for over 2 years, the respondent ought to be entitled to consider that the matter closed, except in the most unusual circumstances…”
27. While it may be said that Allianz, and through it Telstra, is extensively involved in the management of many compensation claims, this is a feature of being, respectively, a major insurer and a major employer. Both are nonetheless entitled to be confident as to the finality in respect of claims in respect of any given claimant/employee (or former employee) within the set time limits, and not to have the expense of continuing to address further applications.
(E) THE MERITS OF THE SUBSTANTIAL APPLICATION ARE RELEVANT.
28. Telstra’s submission was that consideration of merits is only relevant if an applicant’s case is a hopeless one. Here, it was conceded, this was not the position, and that the applicant had an arguable case.
(F) THE FAIRNESS OF GRANTING THE EXTENSION OF TIME AS BETWEEN THE APPLICANT AND OTHER PERSONS IN A LIKE POSITION IS RELEVANT.
29. The possible relevance of this criterion to this matter is whether, if Mr Cassar is given an extension of time then another person who would otherwise have got a particular hearing date without seeking an extension of time will be displaced. Alternatively, if by granting an extension of time, is some precedent set which will disadvantage previous (unsuccessful) applicants for extension of time.
30. In either case, such a consideration is of marginal relevance, and was not pressed by Telstra.
CONCLUSION
31. About four months passed from when the reviewable decision was made, to the time of lodgement of Mr Cassar’s application with this Tribunal. Although the delay in lodgement was admitted to be the fault of the solicitor, no real explanation for the delay by the solicitor was offered. While there may have been delays throughout the review process, it is the critical time limit in relation to the application for review with which the Tribunal is concerned. Also, importantly, there exists a need for finality in respect of such claims for compensation.
32. On balance, I am not satisfied that it is reasonable, in all of the circumstances of the case, to grant an extension of time to the Applicant to lodge an application for review of the reviewable decision.
DECISION
33. The Administrative Appeals Tribunal decides not to exercise the discretion to grant an extension of time to the Applicant for the lodgement of an application for review of the decision of Telstra dated 9 February 2011.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N. Isenberg, Senior Member
Signed: ..........(sgd)..................
AssociateDate of Hearing 11 October 2011
Date of Decision 20 October 2011
Solicitor for the Applicant Mr B McHardy, McLaughlin & Riordan
Counsel for the Respondent Mr B Kelly
Solicitor for the Respondent Curwoods Lawyers
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