Devlin and Australian Postal Corporation (Compensation)

[2016] AATA 487

Devlin and Australian Postal Corporation (Compensation) [2016] AATA 487 (7 June 2016)

Division	GENERAL DIVISION
File Number(s)	2016/2459
Re	Brian Devlin
APPLICANT
And	Australian Postal Corporation
RESPONDENT

REASONS FOR DECISION

Tribunal

Egon Fice, Senior Member

Date of Decision

7 June 2016

Date of Reasons

Place

12 July 2016

Melbourne

The Tribunal refuses the application under section 29(7) of the Administrative Appeals Tribunal Act 1975 for an extension of time to lodge this application for review of a decision.

[sgd].........................................

Egon Fice, Senior Member

Catchwords

WORKERS’ COMPENSATION – interlocutory application – extension of time to lodge application for review – explanation for delay – prejudice – reasonable prospects of success – application refused.

Legislation

Safety, Rehabilitation and Compensation Act 1988 ss. 62(1), 24, 24(7)(b)

Cases

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Comcare v A’Hearn (1993) 45 FCR 441.
Federal Commission of Taxation v Brown (1999) 42 ATR 672
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Windshuttle v Commissioner of Taxation (1993) 46 FCR 235

REASONS FOR DECISION

Egon Fice, Senior Member

12 July 2016

1. Mr Brian Devlin was an employee of Australia Post when he claimed he suffered an injury in the course of his employment on 11 August 2013.  The incident report completed by Mr Devlin stated that as he stepped out of a van backwards and turned around to put keys into a post-box to empty it, he twisted his ankle.  It appears from a report dated 13 August 2013 by Dr Alex Kuriata that he suffered a rupture of the proximal part Achilles tendon.

2. Australia Post accepted liability on 23 August 2013.  In that acceptance letter, Australia Post said that if Mr Devlin was dissatisfied with the decision, he may seek to have it reconsidered. That letter also explained to Mr Devlin that if he was subsequently dissatisfied with the result of the reconsideration, he could seek review of that decision by the AAT.  The letter explained that he was allowed a period of 60 days from when he received the reconsideration decision to make his application to the AAT for review.

3. Mr Devlin received treatment which was paid for by Australia Post.  Australia Post also obtained a medical report from Dr David MacIntosh, an orthopaedic surgeon, which was provided on or about 30 April 2014.  Dr McIntosh was of the opinion that Mr Devlin did not require any more physiotherapy as his bike riding was a most efficient form of treatment.  He explained the tendon had healed in an elongated position and the only treatment that would fix this would be surgery to reconstitute the tendon.  If he had surgery, he would have a prolonged rehabilitation period.

4. In a letter dated 5 May 2014 Australia Post informed Mr Devlin that Australia Post was unable to substantiate payment for further physiotherapy treatment in light of Dr MacIntosh’s report.  It therefore determined to cease liability for costs associated with further physiotherapy treatment.

5. On 25 July 2014 Australia Post notified Mr Devlin that it had, of its own motion pursuant to s. 62(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) determined that his normal weekly earnings figure was to be reduced. Furthermore, in a letter dated 19 November 2014, solicitors then acting for Mr Devlin, Nowicki Carbone, lodged a claim with Australia Post for permanent impairment and non-economic loss. In a letter dated 19 December 2014 Australia Post notified Mr Devlin that it rejected his claim for permanent impairment. Nowicki Carbone responded on behalf of Mr Devlin in a letter dated 5 January 2015, seeking a review of that decision.

6. In a letter dated 6 January 2015 Australia Post notified Nowicki Carbone that it would proceed with a reconsideration of its decision set out in the letter of 19 December 2014.  In a letter dated 8 January 2015 Australia Post notified Mr Devlin that on reconsideration, it found that the determination made on 19 December 2014 was correct. The reconsideration delegate provided Mr Devlin with written reasons for coming to that decision.

7. Mr Devlin lodged an application with this Tribunal on 9 May 2016 seeking a review of Australia Post’s reconsidered decision of 8 January 2015.  That application was some 16 months out of time.  Therefore, Mr Devlin lodged an application for an extension of time for making an application for review of the decision by the Tribunal.

8. I heard Mr Devlin’s application for an extension of time to lodge his application with the Tribunal on 7 June 2016.  I refused his application and gave reasons for doing so.  On 14 June 2016 Australia Post requested that the Tribunal provide written reasons for refusing Mr Devlin’s application.  These are those reasons.

   EXERCISE OF DISCRETION TO GRANT EXTENSION OF TIME

9. McHugh J in the High Court of Australia case Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 explained that for nearly 400 years the policy of the law has been to fix definite time limits for prosecuting civil claims. While an applicant for an extension of time may satisfy conditions for the exercise of discretion, nevertheless, the applicant bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour (at 551).

10. After explaining the rationale behind limitation periods set out in statutes, McHugh J said, at 553-554:

    In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.... A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.... The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.

11. Although the principles and bases upon which the discretion should be exercised are drawn from civil cases heard by the Courts, those principles apply equally to the Tribunal which is required to act judicially.

12. There are two cases which are generally followed by the Tribunal when considering whether an extension of time should be granted. The first is the Federal Court of Australia decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley Developments) and the second, a Full Court of the Federal Court

    
    

    (Black CJ, Gray and Burchett JJ) decision in Comcare v A’Hearn (1993) 45 FCR 441. The relevant passages in Hunter Valley Developments are found at 348-349 where his Honour said:

    1.... 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 twenty-eight days is not to be ignored (Ralkon Agricultural Co. Pty Ltd v. Aboriginal Development Commission (1982) 43 ALR 535 at 550). Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v. Nolan(1982) 45 A.L.R 411 at 416). 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....
    2. Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision... and a case where the decision-maker was allowed to believe that the matter was finally concluded... The reasons for this distinction are not only the “need for finality in disputes” (see Lucic at 410) but also the “fading from memory” problem referred to in Wedesweiller v. Cole(1983) 47 A.L.R 528.
    3. Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension...
    4. However, the mere absence of prejudice is not enough to justify the grant of an extension:...
    5. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted,...
    6. 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:...

13. A’Hearn was initially heard in the Tribunal and subsequently went on appeal from a single judge of the Federal Court to the Full Court. The Tribunal refused to grant an extension of time on the basis that there was a total absence of any acceptable explanation for the delay (at 442– 443). The Full Court said, at 444:

    We note that the Tribunal used language that might be taken to suggest that it is a pre-condition 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 pre-condition:...

14. When he launched his application with this Tribunal seeking an extension of time, Mr Devlin said that he was given wrong advice by his solicitor (I presume Nowicki Carbone) who stated that he did not have an injury which satisfied s. 24 the SRC Act, which deals with compensation for injuries resulting in permanent impairment. In particular, s. 24 (7) (b) of the SRC Act provides:

    (b) Comcare determines that the degree of permanent impairment is less than 10%; an amount of compensation is not payable to the employee under this section.

    Reasons for delay

15. While failure to give acceptable reasons for delay is not a prerequisite for the grant of an extension of time, given the length of delay in this case, I would have expected there to be sound reasons.  However, all that Mr Devlin was able to say was that he was given the wrong advice by his solicitors.  I have no evidence before me that that is what his solicitors said.  There do not appear to have been any medical reasons for the delay.  No explanation was given for why Mr Devlin could not, following the advice given by his solicitors, have sought a second opinion.  There was no evidence before me that he attempted to do so.  Nor was any reason given for Mr Devlin changing his mind.  Accordingly, I find that his reasons are not acceptable.  Furthermore, Mr Devlin had been previously advised that if he was dissatisfied with the reconsidered decision, he had a period of 60 days in which to make an application to this Tribunal.

    Merits of the substantial application

16. This is, in many respects, the most important point when considering whether an extension of time should be granted.  There can be no purpose served in granting an extension of time for the lodgement of a claim which cannot succeed.  However, a hearing on an application for an extension of time is not a hearing of the substantial application.  It is simply a review of the evidence thus far presented by an applicant and, accepting that evidence at face value, determining whether that evidence is sufficient for the applicant to succeed.  As von Doussa J in Windshuttle v Commissioner of Taxation (1993) 46 FCR 235 said at 244:

    It would not be appropriate on an application to extend time to seek to attack the facts alleged on the ground that the credit of the applicant, or that of supporting witnesses, should not be accepted.  Arguments of that kind are best left for later consideration if and when an extension of time is granted.  Only where there is some obvious and easily demonstrated flaw in the applicant’s case would it be appropriate to challenge the factual basis for the inserted claim on an application to extend time.

17. That statement made by von Doussa J was cited with approval by the Full Court of the Federal Court (Drummond, Sackville and Healy JJ) in Federal Commission of Taxation v Brown (1999) 42 ATR 672 where the Court said, at 679:

    [18] It is important to appreciate the limits of the commission’s argument.  Mr Bevan, who appeared with Mr Iuliano for the Commissioner, explicitly (and properly) made following concessions:

    (i)     In determining whether a taxpayers seeking an extension of time in which to lodge an objection has prospects of success, the test to be applied is whether the objection arguably has merit.

    (ii)    The arguable merits test requires the taxpayer’s case to be assessed at its highest.

    (iii)    It follows that, in applying the arguable merits test, findings of credit have no place.  In other words, it is an error of law for the AAT to decide that the taxpayer’s objection has no arguable merits on the basis that the taxpayer’s evidence is not worthy of belief.

    (iv)   Ordinarily, it is inappropriate for the AAT to permit or to engage in cross-examination of the taxpayer’s witnesses with a view to testing the veracity of their evidence so far as the merits of the objection were concerned.…

18. The obvious flaw in Mr Devlin’s case is that he admitted he had received legal advice indicating that his claim could not satisfy the requirements set out in s. 24(7)(b) of the SRC Act. Although Mr Devlin said he had subsequently obtained a second opinion from a Dr Ng, he did not produce that report prior to or at the hearing of his application for an extension of time. While Mr Devlin said that Dr Ng told him about the type and scope of the surgery and that it might make his ankle a little bit better, but not much, there may be serious complications. There was no indication that Mr Devlin’s impairment, if there was one, was 10% or greater. Without that evidence, Mr Devlin could not succeed.

    CONCLUSION

19. I have found that Mr Devlin’s explanation for not proceeding with his claim for permanent impairment pursuant to s. 24 of the SRC Act was unsatisfactory. More importantly, the evidence before me did not indicate that, on the materials which were available to me at the time of hearing, even putting them at their highest, would result in Mr Devlin having prospects of succeeding in his claim. On that basis alone, it would not be correct for me to grant an extension of time. While prejudice is also often an important consideration when considering whether to grant an extension of time, I had no evidence from either party that prejudice would be suffered by the delay.

20. For the reasons set out above, I refuse Mr Devlin’s application for an extension of time to lodge an application seeking review of Australia Post’s reconsidered decision.

21.     I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the written reasons herein of Egon Fice, Senior Member

[sgd].......................................

Associate

Dated   12 July 2016

Date of interlocutory hearing	7 June 2016
Applicant	By telephone
Advocate for the Respondent	Mr Cliff Michael