Cronin C.F.P v Telstra Corporation Ltd

[1995] FCA 729

IN THE FEDERAL COURT OF AUSTRALIA  )                  Limited Distribution
  )
NEW SOUTH WALES DISTRICT REGISTRY  )     No NG671 of 1994
  )
GENERAL DIVISION                  )

BETWEEN:COLIN FRANCIS PAUL CRONIN

Applicant

AND:TELSTRA CORPORATION LIMITED

Respondent

CORAM:    HILL J
PLACE:    SYDNEY
DATED:    19 APRIL 1995

REASONS FOR JUDGMENT

The applicant, Mr Colin Frances Cronin, appeals to this Court from the decision of the Administrative Appeals Tribunal constituted by a Senior Member refusing to him an extension of time to appeal to the Tribunal pursuant to the provisions of s29(7) of the Administrative Appeals Tribunal Act (1975) ("the Act").  The decision which Mr Cronin sought to have reviewed is a decision made by the respondent, Telstra Corporation Limited ("Telstra"), through a delegate on 4 February 1992.  After taking into account the time within which an appeal would ordinarily be lodged to the Tribunal, the delay in filing it was approximately two years and five months.

The injuries in question were alleged to have been sustained by Mr Cronin in the course of his employment at times prior to the date of the decision in 1992.  It seems that Mr Cronin had instituted proceedings in the Supreme Court

of New South Wales in respect of what on its face appears to be another injury.  Mr Cronin's solicitor apparently considered the question of whether an appeal should be brought in the Tribunal against the decisions of 4 February 1992 and advised against that course being taken, at least until after the Supreme Court of New South Wales had determined the claim which Mr Cronin had made to it.

In a letter dated 18 February 1992, that is to say within the time within which an appeal was required to be lodged, the solicitor wrote a letter in the following terms:

"We have now had the opportunity of reading through the reconsideration of Mr S Gallimore of 4 February 1992.

It appears the decision is entirely based on a medical issue and it would be our advice to you not to appeal to the Administrative Appeals Tribunal but rather wait for the Supreme Court to decide your claim.

Kindly advise us of(sic) you agree with this view."

In due course it appears that Mr Cronin settled the proceedings in the Supreme Court.  That settlement relates to an injury sustained, it was said, on 9 August 1984.  The terms of settlement were not before the Tribunal.  When the matter came before the Tribunal, counsel who appeared for Mr Cronin submitted that it would be proper to grant the application and that there is no prejudice to the respondent.  Counsel for
Telstra did not make any submission on the question of prejudice.

The Tribunal found that the delay was the result of a conscious decision.  It said:

"What is before me, however, is that the Applicant here, on the advice of his solicitors given in February 1992 or thereabouts, made a deliberate and informed decision not to seek review by the Administrative Appeals Tribunal.  The applicant then proceeded with a Supreme Court action and that matter now having been settled, he seeks an extension of time in order to bring proceedings in the Administrative Appeals Tribunal.

My opinion is that that Applicant having chosen not to have made his application within time, prima facie time limits are there for a purpose and whatever else may have fallen from the Courts, I can see no good reason why time limits should be ignored purely for forensic purposes."

The Tribunal therefore refused the extension.

An appeal to this Court from the Tribunal under the provisions of s44 of the Act is an appeal on, that is to say limited to, a question of law.  The Court has no jurisdiction itself to exercise the discretion which Parliament has conferred upon the Tribunal in matters involving extensions of time.  Two matters of law were relied upon by counsel for Mr Cronin.  For convenience I will deal with them in the opposite order to that which counsel invites them.
         It was submitted that the Tribunal had denied to the claimant natural justice or as it is often called procedural fairness, in indicating to counsel for Mr Cronin appearing before it that it was unnecessary for him to call evidence from the solicitor who had written the letter to which reference has been made.  It was submitted that it was reasonable for Mr Cronin's counsel to expect that there would be no adverse finding made based upon the evidence without the opportunity being given of adducing further evidence on the matter.

For the purposes of this argument I admitted into evidence a copy of the transcript which makes it clear what actually happened at the Tribunal hearing.  It seems that counsel for Mr Cronin indicated to the Tribunal that Mr Cronin had been advised that it would be prudent for him not to lodge an appeal to the Tribunal but rather to await the decision of the New South Wales Supreme Court.

He sought to tender the letter set out above.  Objection to the tender appears to have been taken by counsel for Telstra who had not apparently seen the letter previously.  He indicated that he would wish to test matters in the letter, particularly whether Mr Cronin had ever responded to the invitation contained in the last paragraph of it.

Counsel for Mr Cronin then indicated to the Tribunal that he could call his instructing solicitor, Ms Gracie, who had written the letter.  The Senior Member then responded, "No need to, we are not bound by the strict rules of evidence.  It will go in as exhibit A".  It is clear that the Senior Member was not in any way indicating to counsel for Mr Cronin that no evidence should be called from the solicitor on matters relevant to the extension for time.  The reference in the transcript is a reference to it being unnecessary to call the solicitor for the purpose of enabling counsel for Telstra to test the letter, rather, the Senior Member was prepared to accept the letter in evidence in any event.

The present is not a case where the Tribunal refused to hear evidence proposed to be called on behalf of an applicant.  Once the letter was in evidence and assuming no other evidence called by the applicant it was clear that the applicant had been given advice not to appeal to the Tribunal pending the Supreme Court proceedings and it would readily be assumed, in the absence of any evidence to the contrary, that the applicant had acted upon that advice.  Certainly, the transcript does not indicate any submission on the part of Mr Cronin suggesting that he had not taken the advice which his solicitor had given him.  In the circumstances, in my view, the applicant has not made out a case of denial of natural justice.

The second attack is perhaps a two-pronged attack.  It is submitted that the Tribunal misdirected itself in law by deciding the matter adversely to Mr Cronin solely on the basis of the inadequacy of an explanation of delay to the exclusion of other matters such as the lack of prejudice to Telstra and the fact that as the Tribunal itself found, Mr Cronin had a triable case on the merits.  A second prong of the attack is suggested inconsistency in the statement of the law by the Tribunal in applying the first test enunciated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348.

The Tribunal in its reasons referred first to Comcare v A'Hearn (1993) 119 ALR 85 as authority for the proposition that it was not a precondition for success in an application to extend time that the applicant give an acceptable explanation for the delay. In that case, the Full Court also pointed out, as the Tribunal itself indicated, that in determining whether to exercise its discretion in favour of an applicant in a case where the delay has been occasioned by negligence on the part of a solicitor, the sins of that solicitor should not be visited upon the applicant and so should not preclude the applicant from being granted an extension of time.

On the first of those two matters, the Full Court in Comcare v A'Hearn said (at 88):

"We note that the Tribunal used language that it might be taken to suggest that it is a precondition for success in such an application that an acceptable explanation for the delay must be given.  Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential precondition: see Dix v Crimes Compensation Tribunal [1993] 1 VR 297 at 302 per Brooking J, with whom Fullagar and Tadgell JJ agreed; cf Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 at 348 and Maric v Comcare 1993 40 FCR 244 and 247-9.

The Tribunal then made reference to Hunter Valley Developments noting that the Full Court in A'Hearn had not dissented from the various propositions which had been enunciated in Hunter Valley Developments.  The reasons of the Tribunal do not make it particularly clear what the relevance was of the various propositions in Hunter Valley Developments to the ultimate conclusion reached.  Hunter Valley Developments is of course a case where extension of time was sought to bring proceedings under the Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act").

In the course of his judgment Wilcox J helpfully summarised the authorities and the proposition for which they stood as at that time.  His Honour sought to distil principles to guide, not in an exhaustive manner, the exercise of the Court's discretion.  The first of these principles his Honour expressed in the following terms:

"Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made.  Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do.  The `prescribed period' of 28 days is not to be ignored ... Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416).  It is a precondition to the exercise of discretion in his favour that the applicant for extension show an `acceptable explanation of the delay' and that it is `fair and equitable in the circumstances' to extend time."

The Tribunal in its discussion of Comcare v A'Hearn clearly perceived that the Full Court in A'Hearn had expressed the view that there was no rule that an acceptable explanation was an essential precondition to the success in an application.  However, whether or not the Full Court in its reference by way of comparison to Hunter Valley Developments intended to point to the difference between an application for extension under the Act on the one hand and an application under the ADJR Act on the other or merely to refer to that decision, it is clear that the Full Court accepted two propositions.

The first was that there was a period of time stipulated in which an appeal could be brought.  The second was that, ordinarily at least, an explanation as to why an application was not brought in time would have to be given.  Comcare v A'Hearn itself of course was not a case where no
explanation was given.  It was a case where an explanation was given which as a matter of law was not such as to disentitle the applicant.  The present is a quite different kind of case.  The present is a case where an applicant has made a conscious decision not to appeal on advice.

There is no suggestion in the evidence that that advice was wrong.  There is certainly no suggestion that the solicitor in any way was negligent.  The mere fact that Mr Cronin subsequently applied to the Tribunal after having settled the Supreme Court proceedings is not of itself evidence that the advice given to him was in any way wrong.  It cannot be suggested that the Tribunal paid no consideration to the fact that Mr Cronin had a triable case on the merits or that there was no prejudice to Telstra.  In the exercise of its discretion the Tribunal was no doubt influenced by the fact that the decision not to apply to the Tribunal within time was a deliberate one.

The written submissions of counsel for Mr Cronin complained that the Tribunal placed "undue importance" upon the inadequacy of the explanation.  But that is only another way of saying that the Tribunal was entitled to place weight upon that factor.  What weight it did place is a matter for it.  At various stages during the course of submissions counsel for Mr Cronin rather suggested that there should be no difference in principle between a case where an applicant is out of time in applying to the Tribunal because of negligence on the part of his or her legal adviser and the case where a legal adviser has actually advised not to lodge an appeal where that advice may have been wrong or may have been right.

With respect, there seems to me to be a world of difference between the two classes of case.  In the case where a solicitor has been negligent and, as a result, his or her client has lost the right to appeal, the client could not be said to have participated in the decision and the failure to appeal in time has, at least so far as the client is concerned, arisen by inadvertence.  But where a client acting on advice from a solicitor deliberately decides not to appeal, the client has personally participated in the delay.  It may, in a particular case, turn out that the advice of the solicitor was negligent.  That is a case for another day.  The present case is not one where it could in any way have been suggested, without at least evidence being adduced, that the solicitor in giving the advice in question did so negligently.

In my view the applicant has not demonstrated that the Tribunal made an error of law in either of the two respects sought to be made out.  For these reasons, therefore, I would dismiss the application.

I direct that the applicant pay the respondent's costs, other than of the application to this Court for an extension of time to file and serve the notice of appeal, including the costs of 28 October 1994.

I certify that this and the
preceding ten (10) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Justice Hill.

Associate:

Date: 

Counsel and Solicitors      J Anderson instructed by

for Applicant:              Steve Masselos & Co

Counsel and Solicitors      T Rowles instructed by

for Respondent:             Sparke Helmore

Date of Hearing:            19 April 1995

Date Judgment Delivered:         19 April 1995