Chand and Telstra Corporation Limited

[2009] AATA 831

Administrative Appeals Tribunal

ORDER AND REASONS FOR ORDER [2009] AATA 831

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3960

GENERAL ADMINISTRATIVE DIVISION		)
Re		MOOL CHAND

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

ORDER

Tribunal M J Carstairs, Senior Member

Date5 October 2009

PlaceBrisbane

OrderFor reasons given orally at the interlocutory hearing by telephone, the Tribunal refuses the application for an extension of time.

....................[sgd]..........................

Senior Member

COMPENSATION – application for extension of time – consideration of factors relevant to exercise of discretion to allow extension of time – application for extension of time refused.

Administrative Appeals Tribunal Act 1975 (Cth), ss 29, 42A

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 62, 65

Hunter River Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309

Brown v Commissioner of Taxation [1999] FCA 563

Re Michael and Secretary, Department of Employment, Science and Technology (2006) 90 ALD 457

REASONS FOR ORDER

5 October 2009 M J Carstairs, Senior Member

1. Mr Mool Chand seeks an extension of time to make an application to the Tribunal for the review of the respondent’s decision on 8 August 2008, which was an “own motion review” (“the reviewable decision”) conducted under s 62(1) of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”). This decision was made prior to the hearing of two applications Mr Chand had with the Tribunal last year.

2.      The effect of the own motion review was twofold:

§  Mr Chand was successful with respect to incapacity payments in 2006 and 2007 for his compensable injury which is a “left wrist flexor carpal ulnaris tendonitis and soft tissue strain to right forearm” (Matter 2007/0383); and

§  the delegate decided, based on updated medical evidence, that Mr Chand was not then (and had not been since 26 May 2008) suffering the effects of the compensable injury which meant that compensation was not payable at that time (this was the same substance of the decision by the delegate in Matter 2008/0446).

3.      On receiving the reviewable decision, the applicant and his representative asked for additional time to consider whether they would withdraw the Tribunal applications. In that regard, it was clear, as discussed at subsequent directions hearings, that Mr Chand still retained the right to Tribunal review of the second matter (2008/0446) – that is, whether Mr Chand had recovered from the compensable injury. 

4.      On 3 April 2009, Mr Chand’s representative wrote to the Tribunal seeking to finalise the first matter (2007/0383) by lodging a withdrawal.  On 16 April 2009, Mr Chand’s representative asked that Mr Chand’s second matter (2008/0446) be withdrawn.

5. As to appeal rights with respect to the reviewable decision, Mr Chand had 60 days in which to lodge an application, by the combined effect of s 29(2) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and s 65 of the SRC Act. Taking into account when Mr Chand was “given” the reviewable decision, the time limit expired in October 2008. Therefore Mr Chand was some 10 months late when he commenced the present proceedings.

CONSIDERATIONS IN EXTENSION OF TIME MATTERS

6.      I should say at the start that limitation periods are the general rule and any extension of time is the exception.  Time limits are important; there is value in finality in administrative decision-making.  However when the Tribunal is asked to consider a favourable exercise of the discretion to extend time, it becomes necessary to consider all the relevant circumstances.  It is helpful, for instance, to understand how delay occurred; some explanations will provide compelling reasons to extend the benefit of additional time, other will be less compelling. 

7.      There are no binding principles that govern the exercise of the discretion, but it is usual to make reference to a range of factors that are widely recognised as pertinent.  This can assist when balancing the competing interests that lie behind the exercise of the discretion, while taking account of the individual’s circumstances.

8.       The respondent submitted that the principles set out in Hunter River Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 provide useful guidelines. That is true, as long as it is borne in mind that the Federal Court has pointed out that these principles are guides only, and slavish adherence should be avoided: Brown v Commissioner of Taxation [1999] FCA 563. In Brown, the Court commented that time should be extended where the justice of the case requires it.

9. The terms used in s 29(7) of the AAT Act must be kept in mind. The subsection states that the Tribunal must be satisfied, before exercising the discretion to extend the time for making an application, that it is “reasonable in all the circumstances to do so”. Turning then to the factors relevantly raised here.

§  explanation of delay

10.     Mr Chand’s initial explanation of delay when applying to the Tribunal in August 2009, was that he attended the funeral of a family member in New Zealand and did not return to Australia until about the middle of the year.  In his letter, dated 29 July 2009, Mr Chand also referred to needing to obtain legal advice about his position.  He later provided more detailed submissions, including that his representative at the previous hearing had asked for an adjournment of Matter (2008/0446) pending a further medical report.  Mr Chand said that he had encountered problems obtaining a specialist report, and he was unable to book an appointment until March 2009.   Mr Chand states that he no longer has legal representation and he has not been able to fully address correspondence that accumulated during his absence.  In that regard, Mr Chand has been unable to obtain the legal advice that he considers he needs.  

11.     Mr Chand, having had previous matters at the Tribunal, can be taken to have been aware of his rights to seek review (these in any event, being fully explained in the document).  In that respect, there is less justification for his delay than would be the case where a person had no such experience.

12.     Mr Chand’s explanation for the delay warrants further scrutiny for another reason.   He cites as an explanation for the delay his absence overseas from a date in January 2009. But he does not address the fact that by then the time limit had passed by some three months.  In that sense, the delay is not explained by overseas absence.   As to needing to seek legal advice Mr Chand did not explain why that too could not have been sought before the 60-day time had expired. 

§  merits of the application 

13.     Mr B Dubé, for the respondent, submitted Mr Chand’s case lacks factual merit, when it is understood in the context of its overlap with the substance of matter 2008/0446 which was withdrawn.   

14.     Ordinarily, merits need only cursory attention if other factors, such as the justice of the case, are compelling.  Here, however, I accept Mr Dubé’s submission that there is such a convergence of the two matters (this reviewable decision, with the substance of Matter 2008/0446) that now extending time would not be a sensible exercise of the discretion.

15.     Mr Chand’s acceptance of the favourable effects of the own motion review is important here.  In effect, Mr Chand seeks to reopen matters that the respondent had reason to believe he had accepted and were finalised by his withdrawals.  In Michael and Secretary, Department of Employment, Science and Training (2006) 90 ALD 457 Downes J reiterated the importance of the principle decisions of the Tribunal are final, subject to appeals to the Federal Court.

16.      Mr Dubé submitted that the medical evidence supports the reviewable decision being correct (that Mr Chand was not experiencing further symptoms from compensable injury).  In that regard, I am mindful that the relevant medical evidence at the time of the last hearing was that doctors found Mr Chand to have no ongoing physical abnormalities.  Mr Chand says now that he was dissatisfied with the content of his specialist’s report  – and this was why needed a further appointment that he could not secure until March 2009.  I would note that this suggests that the content of the first report was not to his liking, and that even now he has not obtained better medical evidence.

17.      I explained to Mr Chand during the extension of time hearing that if the medical evidence changes, he ought to take that evidence back to the respondent so that Telstra can look at his matter again.  In that regard, there is no suggestion of a revocation of the original decision, accepting that Mr Chand had sustained a compensable injury.

18.     So whilst I have not undertaken any detailed examination of the merits of the proposed application, it is permissible for me to have regard to the question of merits: Brown.  I would decide the question of merits against Mr Chand.

19.     There are, in my view, obvious difficulties for Mr Chand in succeeding in this case, taking into account the medical evidence at the time of the last hearing.  It is important to appreciate that the reviewable decision was made just prior to that hearing.   So, the medical evidence underpinning the reviewable decision was up to date, and relevant.  Mr Chand (by his representative) later withdrew the application in Matter 2008/446, not only terminating that application, but also taking the benefit of the reviewable decision, which gave him a more favourable outcome by extending the point of time to which Telstra accepted that he was suffering the effects of compensable injury. 

20. Under the AAT Act there is no need for an order to dismiss this application; it is essentially self-executing: s 42A(1B). The Tribunal is taken as having dismissed the application.

21. I note Mr Dubé’s additional submission that I ought to consider the question of possible reinstatement of Mr Chand’s application under s 42A(10) of the AAT Act. I doubt that this matter can be described as “dismissed in error” given the interlocutory hearings at which the continuance of what remained of the application was discussed and taking account of the correspondence on file. However, even if I were so satisfied, the power to reinstate also involves the exercise of discretion. A number of factors relevant to the exercise are co-extensive with those under s 29 that I have considered above. I would not reinstate this application.

§  prejudice

22.     Telstra did not argue that there would be prejudice.

§  considerations of fairness 

23.     Mr Dubé submitted, and I agree, that the Tribunal ought to consider consistency of treatment in terms of those who do comply with time limits.  In the context of the applicant being taken to have withdrawn the substantive matter then fairness or justice does not demand granting the extension or reinstating the application. 

SUMMARY

24.     I was satisfied that Mr Chand’s was not a proper case in which to extend time. I take the view that the delay here is significant and inadequately explained. Further, Mr Chand had the opportunity for Tribunal review of the substance of the matter but withdrew from that process, having substantially succeeded in his previous application(s).  Accordingly, I refuse the current application.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M J Carstairs.

Signed:..............................[sgd]...............................................

Emily Clarke, Associate

Dates of Interlocutory Hearing 18 September and 5 October 2009
Date of Written Reasons          27 October 2009
The Applicant was self-represented 
Solicitor for the Respondent     Sparke Helmore Lawyers