Crowe and Comcare
[2004] AATA 22
•14 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 22
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1377
GENERAL ADMINISTRATIVE DIVISION ) Re STEPHEN CROWE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Michael Sassella, Senior Member Date14 January 2004
PlaceSydney
Decision The time for an extension of the time within which the applicant may lodge an application for review is not extended.
[Sgd] M Sassella Senior Member
CATCHWORDS
WORKERS' COMPENSATION – application for review of reviewable decision – application made over 22 years later than permitted in legislation – application for extension of time for lodging application for review – extension of time refused – employee failed to agitate concerns for lengthy period – respondent prejudiced if time extended – employee’s case lacking in merit
Compensation (Commonwealth Government Employees) Act 1930
Compensation (Commonwealth Government Employees) Act 1971
Safety, Rehabilitation and Compensation Act 1988
Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315
Riverside Nursing Care Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCA 1065
Comcare v A’Hearn (1993) 45 FCR 441
Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Re Petrou and Australian Postal Corporation (1992) 25 ALD 407
REASONS FOR DECISION
14 January 2004 Michael Sassella, Senior Member Mr Crowe’s application for an extension of time is refused. His application for review has been filed with the Administrative Appeals Tribunal more than 22 years after publication of the reviewable decision. None of the legal criteria for a possible extension of time are satisfied in this case.
BACKGROUND
1. The applicant, Mr Stephen Crowe, now aged 71, worked for the Snowy Mountains Hydro-Electric Authority (“the authority”) when he was injured on 14 July 1966. The Commissioner for Employees' Compensation, the predecessor entity to Comcare (“the respondent”), accepted liability to pay compensation under the Compensation (Commonwealth Government Employees) Act 1930.. This was in respect of a physical injury to the back. The respondent’s predecessor decided on 31 December 1967 that Mr Crowe was no longer affected by his injury and so compensation ceased. Mr Crowe left the employ of the authority, taking several other jobs, before returning to Eire where he had been born.
2. In 1980 he approached the Australian Embassy for assistance in retrieving his Australian workers’ compensation benefits. This led to decisions, including a reviewable decision dated 2 April 1981, being taken under the Compensation (Commonwealth Government Employees) Act 1971[1] to refuse to reinstate his compensation. The time for an appeal to the Commonwealth Employees’ Compensation Tribunal, the tribunal that handled these appeals before the Administrative Appeals Tribunal (“the tribunal”) took over the jurisdiction, expired in June 1981. Mr Crowe, however, waited until 26 October 2003 (over 22 years) before appealing the 1981 reviewable decision to the tribunal.
[1] main issue at this stage is whether the tribunal should grant to Mr Crowe an extension of the time for him to lodge his appeal with the tribunal.
4. In considering whether to grant an extension of time the Tribunal applies the principles in the Federal Court decision, Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315. There are a number of criteria that arise from that decision. These are most notably:
(a)The applicant should provide a reasonable explanation for the delay. As Wilcox J says in his decision (at page 320):
“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 to be shown but the court will not grant the application unless positively satisfied that it is proper to do so. … It is a pre-condition 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.”
(b)The applicant should have taken action other than this application to make the decision-maker aware that he or she contests the finality of the decision.
(c)The respondent should not be unduly prejudiced if the time is extended.
(d)The merits of the substantive application are properly to be taken into account in considering whether an extension is to be granted. Merkel J in Riverside Nursing Care Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCA 1065 described the test as whether the applicant has a reasonably arguable case of error of law on the part of the decision-maker (paragraph 20).
5. There are some additional matters to note.
·In Comcare v A’Hearn (1993) 45 FCR 441 the Federal Court pointed out that the lack of a satisfactory explanation for the delay need not be fatal to an application for an extension of time, although such an explanation should usually be given.
·In the Cohen case (supra) an additional criterion was identified, however it has relevance in only some situations. This criterion is “considerations of fairness as between an applicant and other persons otherwise in a like position”.
·Other cases have laid down principles that are broadly consistent with those in Cohen (supra). In Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42 President O’Connor said at page 48:
“The principles to be applied in considering an application for extension of time under s 29(7) … are:
(i) prima facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so.
(ii) it is relevant whether the applicant rested on his [or her] rights or took action to make the decision maker aware that the decision was being contested;
(iii) any prejudice to the respondent that would be caused by granting the extension of time is relevant;
(iv) any wider prejudice to the general public in terms of disruption to established practices is relevant;
(v) the merits of the substantial application are relevant; and
(vi) fairness of granting an extension of time as between the applicant and other persons in like position is relevant.”
6. The wider prejudice to the general public, as it may be balanced against the interests of the individual applicant receives attention in other cases.
7. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (High Court) McHugh J discussed the reasons for limitation of actions. At pages 551-552 and 555 he makes the following comments:
“The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’. …
“…it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. …
“A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. 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. …
“The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even ‘cruel’ to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, 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.”
…
“To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent. But the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.”
8. In Re Petrou and Australian Postal Corporation (1992) 25 ALD 407 at 411 the Tribunal cited with approval a comment by Deputy President McMahon in an earlier decision where he said:
“Any delay, of course, is prejudicial.. The more time that elapses between the events to be examined and the date of the 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.”
9. Senior Member McGirr said on the same page:
“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.”
10. However, in the Taylor case (supra) Toohey and Gummow JJ state at page 550, “The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent.”
11. Kirby J at page 573 says:
“In judging prejudice, for the purpose of considering the order extending time, the matter to be weighed is the increase of prejudice after the expiry of the ordinary period of limitation. Until that time the law, as expressed in the Act, envisages that the defendant must accept any prejudice or delay without complaint.”
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
explanation for delay
12. Mr Crowe gave as his explanation for delay that he did not know at the earlier relevant times what was required in order to appeal against an unfavourable decision. He explained that in 2002 he had become concerned about his physical condition, notably his back problems, and he had approached the NSW Ombudsman’s office for advice. It was then that he received information about Comcare’s existence and functions and about the tribunal.
13. Mr Kelly of counsel, appearing for the respondent, called Mr Crowe’s attention to the fact that he had solicitors in Sydney acting for him in 1976 and 1977 when he was trying to agitate action against the earlier 1968 decision to cease his compensation. The inference was that those solicitors would have advised Mr Crowe of his then appeal rights which were not exercised.
14. I consider that Mr Crowe has provided an explanation for the delay in proceeding, albeit a very basic explanation. However, as was indicated in the South Brisbane case (above), this is insufficient, by itself, to guarantee Mr Crowe an extension of time in his favour.
agitation of matter elsewhere
15. Over the years, since the 1968 decision to cease payment of compensation, Mr Crowe has agitated his compensation issue only three times. Once was in 1976. The second time was in 1980. The third time is the current application. Mr Crowe was unable to indicate any other actions to keep the matter alive.
16. I find that Mr Crowe did not act in any consistent way to indicate to Comcare or its predecessor that Mr Crowe regarded himself as having an outstanding claim to compensation. Both of the earlier efforts to retrieve his compensation ended in refusals by the insurer which Mr Crowe did not pursue by way of an appeal. He could point to no other method he had used over the many years to notify the insurer of his outstanding claim.
prejudice
17. Mr Kelly submitted that the respondent would be severely prejudiced if an extension of time is allowed. Mr Crowe had gone for over 20 years with no examination by medical experts of Comcare's choosing. The only medical evidence apparently available came from the clinical notes of treating doctor, Dr C Gleeson, in Eire. Dr Gleeson’s clinical notes refer to matters as early as 1979 but Mr Crowe told me he first saw Dr Gleeson in the mid-1980s. Those notes suggest that Mr Crowe reported to Dr Gleeson that he had a back injury in 1979. This may be a reference to the 1966 work injury which Mr Crowe was agitating with the Australian Embassy at that time.
18. However, Dr Gleeson’s notes contained other problems. First, they refer to a fall Mr Crowe had in a hole on a pier at Caherkeem in Eire which exacerbated his osteoarthritis in his neck and thoracic spine. On 29 July 1992 Mr Crowe saw Dr Gleeson because of acute backache. There was then no reported back problem until June 2003 when he was referred to a specialist after complaining of lower back pain. In the intervening years Mr Crowe had seen Dr Gleeson about many medical conditions so there is no cause to think he had refrained from mentioning any back condition to Dr Gleeson.
19. Mr Kelly submitted that, to the extent Mr Crowe has a back condition at the present time, the available evidence makes it very difficult to ascertain what, if any, contribution to his current condition the 1966 injury may have.
20. As a matter of law Mr Kelly referred the tribunal to the remarks of McHugh J in the South Brisbane case (see [7] above) where he said that where a respondent suffers actual prejudice from the grant of an extension of time the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a tribunal reinstating a right of action.
21. Mr Crowe responded explaining that he saw the 1966 accident as the start of all his back problems. The difficulty with this argument is that Mr Crowe was able to work at several jobs, some involving some lifting, after he left the authority. There was not a consistent work incapacity stemming from the incident in 1966. An additional difficulty is posed by the later incident, or incidents, affecting Mr Crowe’s back coupled with lengthy periods when the back seemed not to cause him any problems. The evidence does not sustain Mr Crowe’s argument.
22. Accepting Mr Kelly’s arguments, I find that Comcare would be prejudiced if an extension of time is granted in this case.
merits of applicant’s case
23. Mr Kelly submitted that the merits of Mr Crowe’s compensation case are weak. The reasons are much as set out in [21] above. In addition it is noteworthy that the workers’ compensation liability was ceased in 1968 pursuant to an opinion from an orthopaedic specialist, Dr Vance. I note too that Dr Gleeson seemed somewhat surprised to be asked in 2002 to write in support of Mr Crowe’s claim. In his notes he wrote on 27 September 2002 that Mr Crowe injured his back in 1966 lifting a bin onto a truck. He kept working and saw no doctor. He had an x-ray taken some time later. Dr Gleeson wrote, “He now wants me to sign a compensation form for same. !!!!!!!”
24. Again, in response to these matters Mr Crowe submitted that his problem was caused solely by the incident in 1966 and he had had no rehabilitation.
25. I consider it virtually impossible that Mr Crowe would succeed in any appeal he might be permitted to bring to the tribunal.
CONCLUSION
26. An application of the Hunter Valley case (above) criteria to Mr Crowe’s situation finds very little resolved in favour of permitting an extension of time. I have decided that there are no grounds for allowing an extension of time for the lodging of an application for review in this matter.
DECISION
27. The time for an extension of the time within which the applicant may lodge an application for review is not extended.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Michael Sassella, Senior Member
Signed: .......................................................................................
AssociateDate of hearing 12 January 2004
Date of decision 14 January 2004
Counsel for the applicant Self-represented
Counsel for the respondent Mr Brendan Kelly
Solicitor for the respondent Sparke Helmore, Solicitors
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