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

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.
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.
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.
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.
On 25 July 2014 Australia Post notified…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] AATA 487
Decision Date: 12 July 2016

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an interlocutory application by Mr Devlin seeking an extension of time to lodge an application for review of a decision made by the Australian Postal Corporation. The dispute concerned Mr Devlin's claim for compensation.

The primary legal issue before the Tribunal was whether to grant Mr Devlin an extension of time to lodge his application for review, pursuant to section 29(7) of the *Administrative Appeals Tribunal Act 1975*. This required the Tribunal to consider the explanation for the delay, the prospects of success of the substantive claim, and any prejudice to the parties.

The Tribunal refused the application, finding Mr Devlin's explanation for the delay unsatisfactory. Crucially, Mr Devlin had received legal advice that his claim for permanent impairment under section 24 of the *Safety, Rehabilitation and Compensation Act 1992* (SRC Act) was unlikely to succeed, as it did not appear to meet the threshold of a 10% or greater impairment. While he mentioned obtaining a second opinion, the report was not produced, and the information conveyed did not suggest a strong prospect of success. The Tribunal noted that even when considering the available materials at their highest, there was no indication that Mr Devlin would succeed in his claim. Although prejudice is a relevant factor, no evidence of prejudice due to the delay was presented.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 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. 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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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