Christensen and Australian Capital Territory (Compensation) - [2020] AATA 5059

Christensen and Australian Capital Territory (Compensation) [2020] AATA 5059 (15 December 2020)
AppID:  Christensen and Australian Capital Territory
MatterType:    Compensation
Division:GENERAL DIVISION
File Number(s):2020/5812
Re:Jane Christensen
APPLICANT

Australian Capital TerritoryAnd
RESPONDENT

DECISION
Tribunal:Senior Member D O'Donovan

Date: 15 December 2020
Place:Canberra

The Tribunal grants the applicant an extension of time to 24 December 2020 for making an application for review of a decision made by the respondent on 12 April 2019.
…………………….……………….
Senior Member D O’Donovan
PRACTICE AND PROCEDURE – extension of time – decision to cease payment of compensation under the Safety Rehabilitation and Compensation Act – attended solicitor after period for applying for review had expired – solicitor misunderstood nature of claim and failed to apply to Tribunal for review – error only picked up when counsel became involved – further delay in making application – no resting on rights – no actual prejudice – whether there is unfairness or unsettling of compliant applicants if extension granted – whether case weak or hopeless – application granted
Actew AGL Distribution v Australian Energy Regulator [2011] FCA 639
Arbon and Comcare [2017] AATA 2870
Brisbane South Regional Authority v Taylor (1996) 186 CLR 541
Comcare v A’hearn (1993) 45 FCR 441
De La Torre-Greene and Comcare [2020] AATA 419
Flahive and Comcare [2020] AATA 3044
Hamden v Secretary, Department of Human Services [2013] FCA 3
Hewson and Australian Postal Corporation [1998] AATA 71
Hunter Valley Developments Pty ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
Jess v Scott (1986) 12 FCR 187
MZABP v Minister for Immigration and Border Protection and Others [2015] FCA 1391
Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83
Thompson and Comcare [2019] AATA 714
REASONS FOR DECISION
Senior Member D O'Donovan
15 December 2020
INTRODUCTION

This is an application pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 (the Act) seeking to extend the time for making an application for review of a decision concerning the applicant’s entitlement to compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
The reviewable decision was made on 12 April 2019 by a reconsideration officer employed by Employers Mutual Limited (EML). EML is the claims manager for the Australian Capital Territory (ACT). The ACT is a licensee under the SRC Act. The decision that was made is commonly described as a ‘cease effects’ decision. The applicant had an accepted claim for an injury described as an aggravation of displacement of intervertebral disc – lumbar, generalised anxiety disorder, and aggravation of bruxism. The injury came about as a result of a specific incident when the applicant moved a fridge. The date of injury was 7 February 2003. Compensation had been paid to the applicant under the SRC Act from that time.
In February 2019 Comcare determined that it had no present liability for medical expenses, incapacity payments and household and attendant care services in relation to the injury. The applicant sought review on 18 March 2019. On 12 April 2019 an EML reconsideration officer determined that she was not satisfied that the applicant continued to experience the effects of the compensable condition and any requirement for medical expenses or incapacity were not the result of the compensable condition. The reviewable decision was made by EML rather than Comcare because the ACT had become a licensee under the SRC Act in the period between the initial determination and the renewable decision.
The applicant did not seek review within the 60 day time limit specified in the SRC Act.
On 23 September 2020 that the applicant sought an extension of time to make an application to the Tribunal.
In dealing with the application for an extension of time I have before me:
(a)A copy of the reviewable decision dated 12 April 2019;
(b)A medical report from Dr Anil Nair dated 14 October 2019;
(c)A medical report of Dr Leon Le Leu dated 15 October 2019;
(d)Detailed submissions from the applicant dated 27 October 2020, which annex primary documents relevant to the factual findings I must make;
(e)A further submission from the applicant dated 28 October 2020;
(f)An outline of submissions from the respondent dated 12 November 2020; and
(g)Submissions from the applicant on the Prejudice Issue dated 7 December 2020.
I heard oral submissions in relation to the question on 9 December 2020.
FACTUAL BACKGROUND
The important events in between the making of the reviewable decision and the making of the application for an extension of time were as follows.
On 12 June 2019 the deadline for making an application for review under the SRC Act expired.
At some point in June, probably after the expiry of the review application deadline, the applicant consulted Mr Robert Montagnino, a principal of the firm United Legal. At that first appointment the applicant attended without documentation and so a further appointment was made on 26 June 2019 to provide documents. The applicant missed that appointment and a further appointment was made for 8 July 2019. The applicant attended that appointment with a significant amount of documentation but not the reviewable decision made by EML. The only decision documentation the applicant brought appears to have been a letter from Comcare to Ms Christensen terminating the payment of compensation dated 15 November 2018. This is not the reviewable decision which was subject to reconsideration in the April reviewable decision.
Following that consultation appointments were then arranged by United Legal to have the applicant medically assessed. On 2 August 2019 the applicant provided further documentation including her correspondence with EML.
The applicant attended the medical appointments and when medical reports became available those reports were served on Comcare (not EML). It is clear from the correspondence that the applicant’s lawyer did not understand very basic aspects of his client’s position. He did not understand that a reviewable decision had been made by EML. He did not understand that the 60 day time limit for applying to the Tribunal had passed and he did not understand that steps needed to be taken to seek review.
It is equally clear that the applicant left the conduct of her matter to lawyers who she trusted to act in her interests. In the circumstances that decision seems reasonable. An applicant with a long term injury which includes a psychological component cannot be expected to second-guess a paid professional who they have entrusted the running of their case to.
United Legal’s misapprehension about how Ms Christensen’s claim should be progressed persisted until August 2020. The advent of COVID-19 played some role in delaying the discovery of the error.
The need for an extension of time to seek a review of the reviewable decision was only discovered by the applicant and her solicitor in August 2020 following a conference with counsel. Even at that conference no definitive advice was obtained because counsel had not been provided with the reviewable decision dated 12 April 2019.
On 6 August 2020 United Legal finally wrote to EML advising of the applicant’s intention to seek review of the 12 April 2019 decision.
However, this letter was not sent to the Canberra GPO Box listed in the reviewable decision but to a GPO Box in Sydney. The letter said:
We kindly request that you provide to our offices all documentation in relation to the decision to cease benefits for this injury including any reviewable decisions. In addition, we place you on notice that we intend to file an application for an extension of time to lodge an appeal to the AAT against this decision.
It is unclear when this letter found its way to the right part of EML.
On 23 September 2020 an application for an extension of time was lodged with the Tribunal.
STATUTORY FRAMEWORK
The usual timeframe for making an application to the Administrative Appeals Tribunal (Tribunal) to seek review of a decision under the SRC Act is 60 days from the date the applicant is given the decision. Section 29(7) of the Act authorises an extension of time for the making of an application to the Tribunal in the following terms:
The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
The test of whether it is ‘reasonable in all the circumstances’ to grant an extension of time is a broad one and the range of matters potentially relevant in the application of such a statutory test is large. However, the Tribunal has consistently found that it is useful to examine the question through the framework adopted in Hunter Valley Developments Pty ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 which is a decision of the Federal Court in relation to a similar power in the Administrative Decisions (Judicial Review) Act 1977. That case identified the following matters as potentially relevant: [1]
(a)any reasons for delay in bringing the Application for Review of the Decision;
(b)any prejudice suffered by the Respondent or a third party arising from the delay;
(c)the merits of the applicant’s application for review;
(d)whether the Applicant has ‘rested on its rights’;
(e)the length of the delay; and
(f)any ignorance of the applicant’s appeal rights.
[1] At [18]-[23].
The principles that are applied in considering the merits of the applicant’s application for review are well articulated by SM Britten-Jones (as he then was) in Arbon and Comcare in the following terms:[2]
[2] [2017] AATA 2870 at [3]-[7].
Generally, to extend time the Tribunal must take into account the explanation for the delay, any prejudice to the respondent and whether the applicant has an arguable case. The principles expounded by Wilcox J in Hunter Valley Developments v Cohen will apply recognising that an explanation for delay is one factor to be considered when exercising the discretion to allow an extension but is not an essential precondition.
The list of matters identified by Wilcox J in the Hunter Valley decision are not exhaustive and were intended to provide only general guidance in the exercise of the relevant discretion.
In terms of an assessment of the merits of the case French J (as His Honour then was) observed in Seiler v Minister for Immigration, Local Government and Ethnic Affairs that:
... To say a substantive application has a reasonable prospect of success is to say no more than that there is a finite non-trivial probability that it will succeed....It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused. So a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it...
As to the required extent of investigation into the merits Katzmann J said in Actew AGL Distribution v Australian Energy Regulator that:
... it is inappropriate for this purpose to fully investigate the merits, although an obvious strength or weakness in the applicant’s case is a factor for or against the exercise of the discretion. ...
Further, Besanko J said in Hamden v Secretary, Department of Human Services:
As far as the merits of the substantive application are concerned, it is not for the Court to determine the application at this stage. However, an extension of time should not be granted if the substantive application is not reasonably arguable. Furthermore, if the prospects of success of a substantive application are plainly strong or plainly weak, then that may be a relevant consideration depending on the nature of the other factors (for example, the period of the delay and the explanation for it) relevant to the application for an extension of time.
(citations omitted)
I have applied this framework in determining the applicant’s application for an extension of time.
I note that the respondent referred me in submissions to comments by Justice Mortimer in MZABP v Minister for Immigration (2015) 242 FCR 585 at [62] where she states that ‘it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success’. I would note two things about the respondent’s reliance on that passage. First, her Honour was dealing with a statutory discretion framed in significantly different terms to the discretion found in section 29(7). Second, her Honour confirms the important distinction between grounds that are hopeless and destined to fail, and those which are properly described as weak. In the latter case she confirms that ‘it will seldom be appropriate to refuse to extend time’.[3]
[3] At [65].
In a case where the delay has been caused by an error on the part of a party’s solicitor the approach which has been consistently taken is that the failures of a solicitor should not be visited upon their client.[4] Indeed in some cases the failure of a solicitor to take the proper steps could itself be regarded as establishing a sufficient cause for an extension of time.[5] That is the basis on which I have proceeded for the purposes of resolving this application.
CONSIDERATION
[4] Comcare v A’hearn (1993) 45 FCR 441 at 443.
[5] Jess v Scott (1986) 12 FCR 187 at 190 cited with approval in Comcare v A’hearn (1993) 45 FCR 441 at 443.
Reasons for delay
There are a number of components of the delay in this case. The evidence suggests that the applicant did not take active steps during the appeal period to pursue her rights and only approached a lawyer at the very end of the appeal period or a little after.
However both parties accept that if the applicant had approached a competent lawyer who took immediate steps to seek an extension of time in June 2019 it is likely that any extension of time sought would have been contested.
The bulk of the delay arose as a consequence of the lawyer who the applicant approached having no appreciation of what needed to be done in relation to the application. The applicant’s intention, and seemingly that of her lawyer, was to contest the reviewable decision, but the steps taken for more than a year were misdirected and ineffective in terms of triggering and advancing any review.
There was a further short delay once counsel had picked up on the errors made by the applicant’s solicitor, but steps were taken promptly to put the respondent on notice that the applicant contested the decision.
Accordingly the primary reason for the material delay in this case was the result of incompetence or inadvertence on the part of the applicant’s solicitor.
The respondent suggests that the applicant herself did not do enough to progress the matter. I do not accept that submission. The applicant clearly believed that she was putting her matter in the hands of competent solicitors and that the steps they were taking were progressing her claim. She was providing them with relevant documentation, attending medical appointments and when things were not progressing she chased them up. The applicant should not be saddled with responsibility for the shortcomings of her lawyers.
Almost all of the delay can be put down to the failings of the applicant’s lawyers.
Length of delay
Once the delay attributable to the applicant’s lawyer is removed from the picture, the length of delay to be considered is small. A very small period in June 2019 following the expiry of the time limit and a small period following advice from counsel in August 2020 during which the applicant’s lawyers endeavoured to put the respondent on notice that their client did not rest upon her rights. In those circumstances the length of delay attributable to the applicant is not significant.
Did the applicant rest on her rights?
The applicant did not rest upon her rights in a manner that should be counted against her. She attended lawyers reasonably promptly and had they dealt with the matter in a competent fashion the respondent would have been promptly put on notice of the applicant’s intention to seek review.
Prejudice to the respondent
The respondent contended that the proper approach to this question is as set out in Hewson and Australian Postal Corporation [1998] AATA 71 where the Tribunal stated:[6]
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.
[6] At [23].
While this formulation cannot replace the statutory words, the approach outlined is broadly consistent with the statutory structure adopted in the Act in relation to time limits. A time limit is imposed which should be observed. However if it is reasonable in all the circumstances to do so the Tribunal can extend the time frame. The merits of the case and the prejudice to the respondent arising from delay are both significant factors in assessing what is reasonable.
The respondent claims that it will be disadvantaged if the requested extension of time is granted, as it will be limited in its ability to fully investigate the Applicant’s claim. It submits that the passage of time may ultimately lead to a different outcome than if the application was lodged in a timely manner. While such a claim could be credibly made in many circumstances, the circumstances of the present case do not lend themselves to such a conclusion.
What is in issue is whether an injury which occurred in 2003 and was accepted as giving rise to incapacity and the need for medical treatment for 16 years ceased to have such an effect. The applicant was examined by a specialist briefed by the respondent who reported on the issue on 15 November 2018. The issue which the Tribunal must consider is whether the effects of the 2003 injury had ceased by 18 February 2019. The applicant obtained the medical evidence on which its position is based very close to that date. It is difficult to imagine what could have occurred in the last 20 months which prejudices the respondent’s capacity to run its argument. No specific practical problem was elaborated. The respondent cites in support of its position, the High Court’s decision in Brisbane South Regional Authority v Talyor.[7] However the facts of the present matter are readily distinguishable from those which prevailed for the Brisbane South Regional Health Authority. In Taylor, if the limitation period had been extended, the Brisbane South Regional Health Authority would have been faced with the practical problem of attempting to reconstruct what the terms of medical advice given 17 years before consisted of.
[7] (1996) 186 CLR 541.
In this matter, the respondent’s doctors have prepared reports which affirmatively state that the applicant’s 2003 injury is no longer playing a role in her symptoms. There is no suggestion that those doctors have identified any practical problems in reaching such a view and they have given reports in sufficiently confident terms that the respondent has relied upon them for the purposes of making the reviewable decision. In these circumstances any prejudice to the respondent arising from the delay is trivial.
The mere absence of prejudice of course does not justify an extension of time, but there are other factors which weigh in the applicant’s favour.

The argument concerning prejudice was also pressed in slightly different terms by the respondent. The proposition put was that in the absence of any finding of practical prejudice I should none-the-less apply a general rule of fairness between the applicant and other persons in like positions who do comply with the time limits. In particular the respondent argued that I should accept the proposition that the public interest and the interest of those employees who comply with the prescribed time limits are unsettled by perceptions of unfairness and uncertainty if an extension of time is granted where the justice of the case does not permit the granting of an extension of time. That proposition has been accepted by the Tribunal on a number of occasions previously,[8] however it may have been questioned recently.[9]
[8] Thompson and Comcare [2019] AATA 714 at [166] and De La Torre-Greene and Comcare [2020] AATA 419 at [91].
[9] Re Flahive and Comcare [2020] AATA 3044 at [78]-[82].
Considerable care needs to be taken in identifying what proposition has been accepted by the Tribunal previously and what has been rejected.
Previously, the Tribunal has only accepted that the public interest and the interests of those employees who comply with the prescribed time limits are unsettled by perceptions of unfairness and uncertainty if an extension of time is granted where the justice of the case does not permit the granting of an extension of time. Such a proposition is almost certainly true. If an extension were granted unjustly, then such a conclusion would be rightly regarded as unfair. Such a proposition however does not really assist when the task is to determine what is reasonable in the circumstances. Indeed it rather begs the question.
In Flahive and Comcare, a recent decision of the Tribunal in relation to an application for an extension of time, the Tribunal was unwilling to accept as a fact that there were applicants who would be unsettled by any granting of an extension of time and accordingly the extension should not be granted having regard to those interests. I agree that if a factual claim is going to be made that there is a class of persons who would be unsettled by the Tribunal granting an extension, then that proposition needs to be supported by evidence. No evidence of anyone being unsettled if an extension of time were granted in accordance with the Act was brought forward in the current case.
In the circumstances of the present matter, I do not consider that there is any basis for concluding that there is prejudice or unfairness to any person in granting an extension of time.
The merits of the application
The respondent rightly accepts that the applicant has at least some prospects of success. Since the reviewable decision was made the applicant has obtained two medical reports from specialists who disagree with the view expressed by respondent’s specialist that the impact of the 2003 injury has ceased.
In these circumstances the applicant has some prospect of having the reviewable decision overturned. The application cannot be described as hopeless and may not even meet the description of weak. The applicant has evidence to support a position which could prevail at a hearing. The issue merits determination and this weighs in favour of granting the extension.
DECISION
I am satisfied that an extension of time should be granted to allow the applicant to make an application to the Tribunal. Almost all of the very considerable delay in bringing the application can be laid at the feet of the applicant’s solicitor and I am satisfied none of that delay should be visited upon the applicant.
Consequently, the length of delay attributable to the conduct of the applicant herself is very small, there is merit in her application and there is no discernible prejudice to the respondent as a consequence of the delay. In these circumstances I am satisfied it is reasonable to grant the applicant an extension to make an application to the Tribunal until 24 December 2020.

I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member D O’Donovan.

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Associate
Dated: 15 December 2020
Date of hearing:   9 December 2020
Counsel for the Applicant:   Allan Anforth
Solicitor for Respondent:   Ms Laura Hinwood, Sparke Helmore