Darren Riley and Australian Postal Corporation
[2012] AATA 118
•27 February 2012
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2011/5304
GENERAL ADMINISTRATIVE DIVISION )
Re: Darren Riley
Applicant
And: Australian Postal Corporation
RespondentCORRIGENDUM TO DECISION [2012] AATA 118
TRIBUNAL: Senior Member A K Britton
DATE: 8 March 2012
PLACE: Sydney
1. The Tribunal released written reasons for decision in this matter, dated 27 February 2012.
2. It has come to the Tribunal’s attention that there was an error in the decision.
3. The Tribunal wishes to amend the written decision so as to rectify this error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act1975 (the Act).
NOW THE TRIBUNAL THEREFORE DIRECTS that the Registrar, pursuant to section 43AA(1) of the Act, alter the text of the decision as follows:
(a) Replace the date “13 December 2011” in paragraph 29 of the Reasons for Decision with the date “9 December 2011”.
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Senior Member A K Britton[2012] AATA 118
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/5304
Re
Darren Riley
APPLICANT
And
Australian Postal Corporation
RESPONDENT
Decision
Tribunal Senior Member A K Britton
Date 27 February 2012 Place Sydney Pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975, the Tribunal grants the applicant an extension of time until 9 December 2011 for the making of an application for review of the reviewable decision made on 14 May 2010.
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Senior Member A K Britton
CATCHWORDS
PRACTICE AND PROCEDURE – application for extension of time to lodge application for review – application for review lodged almost 18 months after prescribed time limit – applicant provided acceptable explanation for delay – reasonable in all circumstances to extend time within which to lodge application for review – application granted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 65
Administrative Appeals Tribunal Act 1975 (Cth) – ss 29(7), 29(8)
Administrative Decisions (Judicial Review) Act 1977 (Cth)Cases
Hunter Valley Developments v Cohen (1984) 3 FCR 344; [1984] FCA 176
Gabor v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 706
Comcare v A’Hearn (1993) 45 FCR 441; [1993] FCA 498REASONS FOR DECISION
A person dissatisfied with a decision made under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) must make an application for review by the Administrative Appeals Tribunal (AAT) within 60 days of receiving written notice of that decision (s 65 of the SRC Act). Mr Darren Riley has applied for review of a decision made by his former employer, the Australian Postal Corporation about 18 months after the time for making an application to the AAT had passed. That application cannot proceed unless the power to extend the statutory time limit conferred by the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) is exercised. Even though the time for making an application has expired, the Tribunal may extend the time for making an application if satisfied that “it is reasonable in all the circumstances to do so” (sub-ss 29(7), 29(8) of the AAT Act).
Neither the SRC Act nor the AAT Act prescribe any factors that must be taken into account in deciding whether the discretionary power to extend time should be exercised. In undertaking that task, I will adopt the approach consistently taken by the AAT and be guided by the principles enunciated by Wilcox J in Hunter Valley Developments v Cohen (1984) 3 FCR 344. Usefully summarised by Bromberg J in Gabor v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 706 at [7], those principles are:
a) whilst special circumstances need not be shown, applications for an extension of time are not to be granted unless the Court is positively satisfied that it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an “acceptable explanation for the delay”, and it must be “fair and equitable in the circumstances” to extend time;
(b) action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished; a distinction is to be drawn between a person who has made it known that the finality of the decision is contested and a person who has allowed other parties to believe that the matter was finally concluded. The reason for this distinction includes the need for finality of disputes.
(c) any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
(d) however, the mere absence of prejudice is not enough to justify the grant of an extension;
(e) the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted; and
(f) considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion
As Wilcox J emphasised in Hunter Valley Developments (at 348), this list of factors to be taken into account is non-exhaustive.
Explanation for delay
Mr Riley contends that he has provided a reasonable explanation for the delay in making his substantive application to the AAT. Australia Post disagrees. To put the submissions made by the parties in context it is necessary to sketch in the history of Mr Riley’s application.
Mr Riley was notified in a letter dated 14 May 2010 that on reconsideration, the original decision made by an Australia Post delegate some three months earlier had been affirmed. That decision:
·accepted liability for an injury sustained by Mr Riley involving his lower back and right hip;
·found that the effects of that injury had ceased; and
·determined that the effects of that injury had ceased and as a consequence Mr Riley was not entitled to any further compensation for medical treatment and/or incapacity.
When he received that letter, Mr Riley had returned to full-time work subject to medical restrictions. Apparently, shortly after the injury there was some uncertainty about whether suitable work could be found for Mr Riley.
In early August 2010, Mr Riley was directed onto sick leave by his employer. He challenged the decision to place him on sick leave without success. On 25 October 2010, a Board of Reference (a decision-maker appointed to determine certain disputes between Australia Post and its employees) handed down its decision, which in effect upheld the decision to place Mr Riley on sick leave.
According to Mr Riley, it was only at this point that he realised the implications of the subject decision. He claims that he “hit the panic button” and was at a loss as to what to do. As he saw it, being on sick leave meant that he was now without a job and would soon be without an income. He believed that he could not afford legal advice and was unsuccessful in his attempts to obtain a medical report from his treating specialist. He claims that his distress and anxiety were heightened by a protracted and acrimonious family law dispute.
On his account, Mr Riley believed the only viable option given those circumstances was to apply for an invalidity retirement pension. He applied to the Australian Reward Investment Alliance, the manager of the Commonwealth Superannuation Scheme of which he was a member, for issue of an Invalidity Retirement Certificate — a pre-condition for the granting of a pension. In early January 2011 he was notified that his request for a certificate had been refused.
According to Mr Riley, he then decided to seek the advice of the solicitor then representing him in the family law dispute. This led to a string of referrals and eventually a referral to his current solicitor, Carroll & O’Dea. On 1 March 2011, Mr Riley instructed Carroll & O’Dea to act on his behalf in relation to the subject decision.
On 15 December 2011 Mr Riley’s solicitors lodged, on his behalf in the AAT, an application for review of the disputed decision together with an application for an extension of time.
Mr Riley claimed that while he had been aware in general terms of the statutory time limit for making an application to the AAT, it was only when he engaged Carroll & O’Dea that he appreciated its true import. He testified that up to that time he thought that the Board of Reference, ARIA and compensation proceedings could not be run in parallel.
Has an acceptable explanation been provided?
There is no argument that Australia Post fully complied with its statutory obligation to notify Mr Riley of his right to seek review in the AAT and the statutory time limit for making an application. Nor is there any argument that when notified of that decision, Mr Riley understood in broad terms that a statutory time limit attached to his right of review.
Whether the explanation provided by Mr Riley is adequate must be seen in the context of what can only be described as an excessive delay. Even if, as Counsel for Mr Riley urges, the period after he instructed solicitors is disregarded, the delay remains significant.
After obtaining instructions, Mr Riley’s solicitors took a further ten months to lodge the application for review. While the application threw up a degree of complexity and staff changes and delays in obtaining medical reports apparently contributed to the delay, Mr Riley’s lawyers in my opinion have failed to adequately explain why it took close to ten months to lodge an application on his behalf. Mr Riley argues that Comcare v A’Hearn (1993) 45 FCR 441 at 444 supports the proposition that he should not be held responsible for the delay that occurred after he instructed solicitors. While A’Hearn is not authority for the proposition that once lawyers are instructed, their client is automatically is absolved from responsibility for delay, in my opinion it would be inappropriate to visit on Mr Riley responsibility for the delay apparently caused at least in part by his lawyers. He gave unchallenged evidence that he fully cooperated with his solicitors and provided any information requested in a timely fashion and attended all conferences and medical assessments as directed.
Counsel for Australia Post argues that a file note of a phone conversation between Mr Riley and his solicitor in September 2011 — “the applicant was more keen to be reinstated, his instructions were not clear” — indicates that Mr Riley was ambivalent about pursuing review and this contributed to the delay. I do not agree. The note simply indicates, as he has consistently stated, that his primary objective was the retention of his job with Australia Post. That objective is not inconsistent with the making of a claim for compensation under the SRC Act.
While the delay after solicitors were instructed should not be visited on Mr Riley, there can be no argument that he was entirely responsible for the delay prior to that time. His explanation, in short, is that he initially failed to fully appreciate the implications of Australia Post’s decision, and when directed onto sick leave some months later, he gave priority to and became distracted by, pursuing other avenues of redress. I accept his claim that these difficulties were compounded by an acrimonious family law dispute which contributed to his overall anxiety and inability to “think straight”.
The claim made by Mr Riley that prior to being directed to take leave sick leave he did not fully appreciate the significance of the reviewable decision and saw little utility in seeking review is plausible. I agree with the argument put by counsel for Mr Riley that it is not surprising that a lay person would struggle to appreciate the significance of a decision that on one hand accepted liability for injury and on the other refused the person’s claim for compensation resulting from incapacity, in circumstances where they remained fully employed without loss of income.
As Counsel for Australia Post correctly points out, while Mr Riley may not have fully appreciated the import of not challenging the reviewable decision, at all material times he was aware that his right to do so was subject to a time limit. I also agree that Mr Riley’s failure to obtain legal advice at least initially, of itself does not constitute an adequate explanation for the delay.
The explanation proffered by Mr Riley is plausible although not powerfully compelling. This is not a case of a person who, on account of illness or disability, could not reasonably be expected to pursue their right of review in a timely manner or act in their own best interests. Nonetheless, given the beneficial but complex character of the compensation system, Mr Riley’s evident confusion about his situation, his stressful personal circumstances and the fact that once he had grasped the necessity to take action he belatedly did so, in my opinion he has provided an acceptable explanation for his delay .
Conclusion
Time limits are imposed to bring finality to the decision-making process. This is not an absolute value, however. Once the threshold question of an acceptable explanation is resolved, the question must be whether or not justice can be done to both parties if the matter proceeds to a hearing on the merits. It is to that question that the six factors outlined by Wilcox J are ultimately directed.
To those six factors, I would add another. It is relevant to consider the character of the legislation in question. In this case, the legislation is beneficial legislation, designed to protect injured workers with legitimate claims against their employers for work-related injuries or conditions. All other things being equal, this factor may weigh in favour of an applicant such as Mr Riley.
Mr Riley’s application for review cannot proceed unless I am satisfied that “it is reasonable in all the circumstances” to extend the time for making his application for review. The parties agree that of the six factors listed by Wilcox J in Hunter Valley Developments, the explanation for the delay is of central importance in this matter. That threshold has been crossed.
Turning to other matters, while Mr Riley continued to agitate about matters related to the subject decision, such as the extent of his incapacity for work after the deadline for applying for review had passed, I accept that this was insufficient to place Australia Post on notice that Mr Riley intended to contest the disputed decision.
As Counsel for Mr Riley points out, the comments made by Wilcox J in Hunter Valley Developments about the “need for finality in disputes” were made in the context of an application for an extension of time made under the Administrative Decisions (Judicial Review) Act 1977 (Cth). I do not accept, as I understand Counsel to suggest, that that consideration is of any less relevance to decisions made under the SRC Act. Australia Post had a legitimate expectation that the impugned decision would stand after the period for seeking review had expired. This consideration does not assist Mr Riley.
The period of delay and Australia Post’s legitimate expectation that the matter had been resolved weigh against the granting of an extension of time. I have also taken into account the concerns raised by Australia Post that the grant of an extension might give rise to a “normative effect” whereby persons the subject of future decisions will come to take a cavalier approach to the statutory time limit on applying for review.
My decision is confined, however, to the facts raised by this case and has no precedent value. Future applications must, as directed by statute, be guided by an assessment of whether it is reasonable to extend time in the circumstances of that case.
While the parties disagree about the strength of Mr Riley’s substantive application, there is no dispute that he has an arguable case. They also agree that neither Australia Post nor any third party would be prejudiced if Mr Riley’s application were to proceed. Against a background of beneficial legislation, those are powerful points in favour of granting the application to extend time.
While these factors are finely balanced, I am satisfied that it is reasonable in all the circumstances to grant the application sought.
ORDER
The time within which Mr Riley may make an application to the Administrative Appeals Tribunal for review of the decision of the Australian Postal Corporation made on 14 May 2010 is extended to 13 December 2011.
I certify that the preceding 29 (twenty nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton
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Associate to Senior Member A K Britton
Dated 27 February 2012
Date of hearing 15 February 2012 Counsel for the Applicant Mr L Grey Solicitor for the Applicant Ms B. Teh, Carroll & O'Dea Counsel for the Respondent Mr M Snell Solicitor for the Respondent Ms D Hatton, Australian Postal Corporation
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