Copeland and Australian Postal Corporation (Compensation)

Copeland and Australian Postal Corporation (Compensation) [2023] AATA 1334 (26 May 2023)
Division:GENERAL DIVISION
File Number(s): 2022/8536
Re:Trevor Copeland
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:Senior Member J Rau SC
Date:26 May 2023
Place:Adelaide

The application for an extension of time is refused.
................[sgnd]..................................................
Senior Member J Rau SC
CATCHWORDS
PROCEDURE – application for extension of time – whether extension of time should be granted – inadequate explanation for delay – merit of substantive application not articulated - extension of time application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Evidence Act 1995 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Comcare v A’Hearn (1993) 45 FCR 441
Hewson and Australian Postal Corporation [1998] AATA 71
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
REASONS FOR DECISION
Senior Member J Rau SC
26 May 2023
The substantive application

The Applicant’s substantive application seeks review of a decision by the Respondent dated 19 April 2022 (“the second determination”). that the Applicant had no entitlement to compensation under ss14, 16 and 19 of the of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) for “noise induced hearing loss and tinnitus”.
The extension of time application
The issue to be decided in this application is whether the Applicant should be granted an extension of time, pursuant to s29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), to lodge an application for review of the second determination.
Background
The Applicant was employed by the Respondent from 21 November 1977 to 2 July 2011 at the Adelaide Mail Centre.
On 30 October 2021, the Applicant made a claim under s14 of the SRC Act for noise induce hearing loss. This application was prepared by his legal representative, Ms Ferraro.
On 17 February 2022, liability was denied under ss14, 16 and 19 of the SRC Act (“the determination”). A copy of the determination was sent to Ms Ferraro by email dated 17 February 2022.
By email dated 22 March 2022, Ms Ferraro sought review of the determination (“the review request”).
By email dated 23 March 2022, Ms Chung for the Respondent, wrote to Ms Ferraro seeking confirmation of the claim number and the determination date to which the review request referred.
By email dated 23 March 2022, Ms Ferraro replied to Ms Chung’s email attaching a copy of correspondence received from Australia Post.
By email dated 24 March 2022, the Respondent sent an automated confirmation to Ms Ferraro, advising that the review request had been received and would be answered by the Respondent issuing a reviewable decision.
By email to Ms Ferraro dated 30 March 2022, the Respondent sought confirmation about the content of the review request. The Respondent did not receive a response to that email from Ms Ferraro. Ms Ferraro has not provided any evidence about whether this email was received.
On 19 April 2022, the determination was affirmed. This decision (the second determination) was sent to Ms Ferraro by email on 19 April 2022, along with a notice regarding appeal rights.
Although she does not explicitly say so, it is implicit in Ms Ferraro’s affidavits filed with the Tribunal that the Respondent’s email of 19 April 2022 was not received by her. Her affidavit says that she relied on an Outlook reminder that was never set by her, and that the Applicant himself did not follow the matter up.[1]
[1] See Affidavit dated 14 February 2023 at [2] Affidavit dated 9 May 2023 at [7]-[9].
On 25 August 2022, after conducting a “file review”, Ms Ferraro emailed the Respondent saying, “can you please provide your reconsideration?”
By email dated 25 August 2022, the Respondent provided Ms Ferraro with another copy of the second determination.
By return email to the Respondent dated 25 August 2022, Ms Ferraro confirmed receipt of the second determination and indicated she would seek the Applicant’s instructions about lodging “a dispute in the AAT”.
Ms Ferraro says that on 27 September 2022, she obtained the Applicant’s instructions to lodge an Application for Review of the second determination with the Administrative Appeals Tribunal (“Tribunal”).[2]
[2] Affidavit dated 14 February 2023 at [3].
Ms Ferraro says that between 25 August 2022 and 27 September 2022, she was “unable to reach the Applicant by telephone for a number of weeks”.[3] No particulars of her attempts to make contact were provided.
[3] Affidavit dated 9 May 2023 at [12].
The emails from the Respondent to Ms Ferraro were all sent to the same email address being, “[email protected]”. Ms Ferraro received and responded to a number of emails from the Respondent during the period between March and August 2022 from that email address.
On 27 October 2022,[4] the Applicant filed this Application for an Extension of Time to apply to the Tribunal for review of the second determination.
[4] Dated 19 October 2022 on the application.
Ms Ferraro has provided no evidence regarding what happened to cause delay between 27 September and 27 October 2022, when this application was filed.
The Applicant gives the following grounds for the application:
“The extension does not prejudice the Respondent.”
The Law
Under s65(4) of the SRC Act, an application for review must be lodged with the Tribunal within 60 days of an applicant receiving notice of a decision. This did not happen.
Section 29(7) of the AAT Act permits the Tribunal to extend the time for the making of an application to the Tribunal, if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
In Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment[5], the Federal Court sets out a series of factors that are relevant in considering whether to grant an extension of time. These factors are as follows:
(a)whether there is an ‘acceptable explanation of the delay’ and it is ‘fair and equitable in the circumstances’ to extend time;
(b)whether the applicant was aware of their appeal rights, such that they can be said to have ‘rested on their rights’;
(c)any prejudice to the respondent caused by the delay;
(d)whether any others or the general public would suffer any prejudice as a result of the extension, or established practices be upset; and
(e)the merits of the substantive application.
[5] (1984) 3 FCR 344.
These factors are relevant to this application.
Consideration
(a)whether there is an ‘acceptable explanation of the delay’ and it is ‘fair and equitable in the circumstances’ to extend time
The sixty-day time limit for lodging an Application for Review of the second determination expired on 20 June 2022. The Applicant lodged an Application for Review on 27 October 2022, which is 130 days out of time.
There is no explanation as to how or why Ms Ferraro would not have received the Respondent’s email of 19 April 2022. There is no suggestion that the email was not sent. The email address had been successfully used before to communicate with Ms Ferraro. It has been used successfully since.
Ms Ferraro says, “The delay between my email to Australia Post requesting a reconsideration on 22 March 2022 and following up on 25 August 2022 was simply because I did not have the appropriate task set in Outlook to follow up.”[6] This is not the same as saying that the email was not received.
[6] Affidavit dated 9 May 2023 at [7].
There is no suggestion that the Applicant himself followed the matter up with his lawyers. Ms Ferraro says, “The Applicant himself did not follow up my office for the result of the reconsideration and it wasn't until my email to Australia Post on 25 August 2022, did I become aware a determination had been made”.[7]
[7] Ibid at [9].
The Tribunal is not bound by the rules of evidence, but this does not mean that they should be disregarded. Normally, the issue of electronic communications arises in the context of admitting material that would perhaps be otherwise excluded in judicial proceedings. In this context, the Tribunal notes s 161 of the Evidence Act 1995 (Cth) which provides:
(1)If a document purports to contain a record of an electronic communication other than one referred to in section 162, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that the communication:
(a)was sent or made in the form of electronic communication that appears from the document to have been the form by which it was sent or made; and
(b)was sent or made by or on behalf of the person by or on whose behalf it appears from the document to have been sent or made; and
(c)was sent or made on the day on which, at the time at which and from the place from which it appears from the document to have been sent or made; and
(d)was received at the destination to which it appears from the document to have been sent; and
(e)if it appears from the document that the sending of the communication concluded at a particular time--was received at that destination at that time.
(2)A provision of subsection (1) does not apply if:
(a)the proceeding relates to a contract; and
(b)all the parties to the proceeding are parties to the contract; and
(c)the provision is inconsistent with a term of the contract.
The evidence before the Tribunal regarding the delay of 33 days between 25 August 2022, when Ms Ferraro advised the Respondent that she would seek instructions from her client. and 27 September 2022 when she said that she obtained them is:
“On or about 25 August 2022 I was performing a file review of my matter balance and noticed I had not received correspondence regarding the outcome of the Reconsideration. I was provided by return email the details of the Determination 1 now know to be dated 19 April 2022.
I obtained instructions from the applicant to file an Application for review on 27 September 2022.
In relation to the delay between notice of the Determination on 25 August 2022 and obtaining instructions on 27 September 2022, was due to me being unable to reach the applicant by telephone for a number of weeks”.[8]
[8] Ibid at [10]-[12].
The Tribunal has no evidence about what occurred between 27 September 2022, which is when Ms Ferraro obtained instructions to seek a review, and the lodgement of this Application on 27 October 2022.
Even if the Tribunal came to the view that an unknown technical mishap occurred[9] and was the cause of a non-communication of the second determination to Ms Ferraro on 19 April 2022, there is not an adequate explanation for the delay of a further 64 days.[10] This is particularly relevant for the period between 27 September 2022 and 27 October 2022, for which there is no explanation. The Respondent makes the point that, this period of 64 days would, “of itself have been outside the sixty-day timeframe for the lodgement of an Application for Review of Decision.”
[9] A finding for which there was no evidentiary basis.
[10] Between 25 August 2022 and 27 October 2022 when this application was lodged.
The Respondent contends that 130 days is a considerable delay when considered in the statutory timeframe, and that this is a relevant factor to be considered in determining the Applicant’s request for an extension of time. The Tribunal accepts this submission. The longer the delay in making an application for an extension of time, particularly when there is no compelling explanation offered for the delay, the heavier the onus becomes on an Applicant to demonstrate that other significant countervailing factors exist.
In this case, it is unclear to what extent, if any, the delay since 25 August 2022, can be attributed to the Applicant personally, or is properly the responsibility of his legal advisers. His advisers conceded “administrative delay” on their part in their submissions. It does not however seem that the Applicant was taking any active steps to follow up on his claim, or to assert his rights. A general, unparticularised reference to “being unable to reach the applicant by telephone for a number of weeks” is not very illuminating. An absence of specific evidence on this topic does not raise a presumption in the Applicant’s favour.
(b)whether the applicant was aware of their appeal rights, such that they can be said to have ‘rested on their rights’
There is an implicit assertion that the Applicant and his legal advisers did not have notice of the second determination until 25 August 2022. This implicit assertion is an unexplained mystery. This is discussed in (a) above. What happened to the email of 19 April 2022?’ Although the Respondent can prove that the email was sent, it cannot prove its receipt.
In this context, it is again relevant to note the provision of s 161 of the Evidence Act 1995 (Cth)[11]
[11] As above at [30].
From 25 August 2022, the Applicant, through his lawyer Ms Ferraro, had constructive notice of his position and his appeal rights. Again, there is little evidence to shine light on what actually took place between the Applicant and Ms Ferraro. There is only an unparticularised assertion that Ms Ferraro was “unable to reach the applicant by telephone for a number of weeks”. This is not a compelling, detailed explanation.
As previously observed, this is a cursory explanation for why obtaining instructions took until 27 September 2022.
The Tribunal has no evidence about what occurred between 27 September 2022 when instructions were received to seek a review, and the lodgement of this application on 27 October 2022.
The evidence, such as it is, suggests that the Applicant and/or his lawyer showed no urgency in bringing this application, despite being out of time.
(c)any prejudice to the respondent caused by the delay
The Respondent contends that there is “Prejudice to the Respondent / the general public and the public interest”.
A Respondent is generally entitled to proceed on the basis that claims not pursued within time can be regarded as finalised. However, if an Applicant is shown to have a good prospect of succeeding in the substantive claim and there is little prejudice to the respondent, this presumption may be displaced.[12]
[12] Hewson and Australian Postal Corporation [1998] AATA 71 and Comcare v A’Hearn (1993) 45 FCR 441.
The Respondent contends that “it may suffer prejudice if the Applicant’s requested extension of time is granted, but concedes that this prejudice will be limited. The main prejudice to be suffered by the Respondent would be incurring of legal costs by defending this matter before the Tribunal in circumstances where the Applicant’s prospects of success are limited”.[13]
[13] Respondent’s Written Submissions dated 21 April 2023 at [39].
The Respondent also submits that a mere absence of prejudice (which it does not concede in this application) is “not enough to justify the grant of an extension of time”[14] This is undoubtedly correct.
[14] Ibid at [40].
The Respondent however, points to no particular prejudice arising from the unique circumstances of this case.
(d)whether any others or the general public would suffer any prejudice as a result of the extension, or established practices be upset
The Respondent submits that “it is in the public interest that there is finality in decision making, and it is for this reason that Parliament has imposed legislative time limits. Such legislative time limits ensure that there is a predictable and orderly conclusion to a decision-making process, which benefits the general public as well as decision-makers much as the Respondent”.[15] This is undoubtedly correct. It is strongly in the public interest that proscribed time limits are complied with.
[15] Ibid at [41].
This fact alone would not however, be generally sufficient to prevent a reasonable extension of time being granted, to seek a meritorious review of a determination.
(e)the merits of the substantive application.
It is relevant to consider the merits of the substantive application when considering an application for an extension of time. This process is necessarily cursory and cannot involve a “trial of the merits”. Nevertheless, a strong suggestion of merit in an application, is one factor that may weigh significantly in favour of granting an extension, in the interests of justice. Conversely, a weak case is a factor that may weigh against an extension, in the interests of finality and the conservation of scarce public resources.
The Respondent says that:
“the Applicant’s prospects of success in this matter are poor. This is because for the Applicant to succeed in the substantive application, he will be required to show that his employment with the Respondent has contributed to the claimed injury to a significant degree under s5B of the SRC Act. Furthermore, for hearing loss to be attributed to noise in the workplace, it must be shown that the Applicant was exposed to noise at 85dB or higher for 8 continuous hours per day. …….There is presently no medical evidence to support a finding that the Applicant’s employment with the Respondent or indeed, that any alleged noise exposure, caused the claimed injury. In support of the claimed injury, the Applicant has only provided an audiogram and hearing aid quotation, neither of which indicate that the Applicant’s hearing loss was contributed to, a significant degree by his employment with the Respondent or to noise exposure in the workplace or otherwise. ……Furthermore, as referred to in the reviewable decision, the Respondent has obtained noise level study results for noise surveys undertaken on 22 August 1995 which identified no instances where the noise exposure at the Adelaide Mail Centre exceeded or would be expected to exceed 85dB which is required in order to cause noise induced deafness.”[16]
[16] Ibid at [44]-[49].
The Applicant has offered nothing in rebuttal of these detailed submissions, beyond an unarticulated assertion of merit. The Tribunal is not persuaded that there is any demonstrated merit in the Applicants’ claim, such as to shift the balance in his favour.
Conclusion
In the circumstances, the Tribunal finds that on a proper application of the relevant considerations, there is no sufficient ground demonstrated for the granting of an extension of time under s 29(7) of the Act.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC.

.....................[sgnd]................................
Legal Associate

Dated: 26 May 2023

Advocate for the Applicant:

Ms Danniella Musolino
Tindall Gask Bentley

Advocate for the Respondent:
Ms Anella Bortone
Sparke Helmore Lawyers

[2023] AATA 1334

26 May 2023

Key Legal Topics

Areas of Law

Administrative Law

Employment Law

Statutory Interpretation

Legal Concepts

Appeal

Procedural Fairness

Statutory Construction

Advocate for the Applicant:	Ms Danniella Musolino Tindall Gask Bentley
Advocate for the Respondent:	Ms Anella Bortone Sparke Helmore Lawyers