Dibbs and Australian Postal Corporation
[2000] AATA 498
•21 June 2000
DECISION AND REASONS FOR DECISION [2000] AATA 498
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V00/112 & V00/635
GENERAL ADMINISTRATIVE DIVISION )
Re Ross DIBBS
Applicant
And AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member
Date21 June 2000
PlaceMelbourne
Decision The Tribunal extends to 2 February 2000 the time for Mr Dibbs to lodge an application for review of the reviewable decision of 3 March 1999.
(Sgnd) Joan Dwyer
Senior Member
PRACTICE AND PROCEDURE - extension of time application - principles guiding exercise of discretion to extend time - whether acceptable explanation for delay - delay by legal representative - whether prejudice to the public - merits of substantial application - whether fair and equitable in the circumstances to extend time - application for extension of time granted
Administrative Appeals Tribunal Act 1975 29 (1) (d), (2), (7)–(10),
Safety, Rehabilitation and Compensation Act 1988 s 65 (4)
Comcare v A'hearn (1993) 119 ALR 85
Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 58 ALR 305
REASONS FOR DECISION
21 June 2000 Mrs Joan Dwyer, Senior Member
This is an application for an extension of time under s 29(7) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"). Mr Dibbs seeks to review a reviewable decision, made 3 March 1999 under the Safety, Rehabilitation and Compensation Act 1988 ("the Compensation Act"), which affirmed a determination made 9 October 1998 ceasing Mr Dibbs' entitlement to compensation in respect of "temporary episode of soft tissue injury to neck and thoracic spine secondary to whiplash and co-existent left tennis elbow."
Mr P Trigar of Counsel appeared for Mr Dibbs. Mr M McInnis of Counsel appeared for Australia Post. Mr Dibbs gave evidence. Evidence on his behalf was also given by Dr Nicola, Mr Butteworth, a psychologist, Ms Sdrinas, a solicitor, and Mrs Dibbs. Evidence for Australia Post was given by Mr Bowden of Australia Post Property Division. The Tribunal had before it the exhibits tendered on behalf of the parties.
Section 29 (1) (d) of the AAT Act provides as follows:
29 Manner of applying for review
(1) An application to the Tribunal for a review of a decision:
. . .
(d)if the terms of the decision were recorded in writing and set out in a document that was furnished to the applicant or the decision is deemed to be made by reason of the operation of subsection 25 (5) - shall be lodged with the Tribunal within the prescribed time.
The combined operation of s 29 (2) of the AAT Act and s 65 (4) of the Compensation Act is that any application for review of the reviewable decision of 3 March 1999 should have been lodged with the Tribunal within 60 days of a copy of the determination being furnished to Mr Dibbs.
Section 29 (7)–(10) of the AAT Act provides as follows:
. . .
(7)The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section).
(8)The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.
(9)Before determining an application for an extension of time, the Tribunal may, if it thinks fit, require the applicant to serve notice of the application on a specified person or persons, being a person or persons whom the Tribunal considers to be affected by the application.
(10)If a person on whom a notice is served under subsection (9), within the prescribed time after the notice is received by him or her, gives notice to the Tribunal, as prescribed, stating that he or she wishes to oppose the application, the Tribunal shall not determine the application except after a hearing at which the applicant and any person who so gave notice to the Tribunal are given a reasonable opportunity of presenting their respective cases.
. . .
Although Mr Dibbs' solicitors received a copy of the reviewable decision and forwarded it on to Mr Dibbs by letter dated 9 March 1999, the application for review was only lodged with the Tribunal on 2 February 2000. At the same time Mr Dibbs' solicitors lodged an application for an extension of time in which to lodge the application for review. In their covering letter they stated:
The reason for our request for an extension of time is that although the applicant was aware of the relevant time limits, at the time that the reconsideration was made, our client was uncertain as to whether or not he wished to pursue this matter further.
Indeed, although he was advised of the relevant time limits, he did not feel in a position psychologically or financially to pursue the matter further.
Since that time, our client instructs us that he has had ongoing problems which at times have been more severe. Given the ongoing nature of his disability and the possibility that future treatment will be required, he now seeks to pursue the matter further.
In this connection, we submit that our client has provided a reasonable explanation for his delay. We submit that the respondent is not prejudice by the delay and that in all fairness, an extension of time should be granted to the applicant to pursue this claim.The respondent's solicitors lodged a Notice Opposing the Application for an Extension of Time on 16 February 2000. The matter came on for hearing on 13 June 2000.
In Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 58 ALR 305 at pp310–311, Wilcox J explained the principles to be taken into account in exercising a discretion to extend time. His Honour emphasised that a statutory prescribed period is not to be ignored, but said that the statutory discretion exists so that an extension may be granted where it is fair and equitable to do so. Although Wilcox J suggested that an acceptable explanation of the delay was a pre-condition to the exercise of the discretion, the Full Court of the Federal Court in Comcare v A'hearn (1993) 119 ALR 85 at p88 rejected that suggestion saying:
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:
In this matter there are explanations of the delay between early May 1999 and 2 February 2000. First, I find that during the prescribed 60 day period and for a short time thereafter Mr Dibbs was, as his solicitors wrote, "uncertain whether or not he wished to pursue the matter further."
I found Mr Dibbs to be an honest witness. I accept his evidence that when he left Australia Post he was upset and angry at the way he had been treated by Australia Post. Thus he was anxious to try and make a new career and put the whole Australia Post experience behind him.
Mr Dibbs said that he hoped that the neck pain would improve and he would not need to rely on compensation from Australia Post. Mr Dibbs said that he believed that he had been discriminated against after he was injured in a car accident on 3 October 1995, in the course of his employment, and sustained the compensable injury. He said he could not understand why the attitude of management towards him changed, just because he happened to be driving in the wrong place at the wrong time; but that was his perception. He said "I was bursting my guts to get over the neck pain and work full-time again," but people thought he was putting on an act.
Mr Dibbs said that he got the message that as long as he was on compensation his career would "go nowhere". This was confirmed when he won promotion to a position as an AO4 but was not gazetted to the position. The position was then abolished before he had taken it up, and he was pressured to take a voluntary redundancy. Mr Dibbs took proceedings in the Industrial Relations Tribunal in respect of those matters. There is some confirmation of his evidence on those issues in the determination of Commissioner Blair arising out of a hearing which took place on 19 June 1997 (A2), and in the letter from Mr Dibbs to Mr Lavis dated 11 June 1997 and Mr Lavis' hand written comments on that letter, as well as his formal response of 23 June 1997 (A3).
Further Mr Dibbs had had a number of difficulties in relation to his ongoing compensation entitlements following the accident on 3 October 1995. The following dates give some idea of the process:
Claim lodged. Claim accepted. Diagnosis of compensable condition changed
September 1996 Determination ceasing compensation.
Request for reconsideration.
November 1996 Cease effects determination revoked.
February 1997 Second cease effects determination.
Second request for reconsideration.
March 1997 Cease effects affirmed.
26 June 1997 Claims lodged for two further incidents of neck pain.
22 July 1997 Liability accepted.
6 January 1998 Request for continuation of rehabilitation gym/swim program.
30 January 1998 Request rejected "when employment ceases with Australia Post, so to [sic] does rehabilitation with the Company." (See reviewable decision of 3 March 1999). [This seems to contradict the answer to Q2 in Mr Lavis' letter of 23 June 1997 (A3)].
Third request for reconsideration, in respect of rejection of rehabilitation program.
31 March 1998 Reviewable decision affirming rejection of rehabilitation program.
9 October 1998 Cease effects determination ceasing liability for medical costs or incapacity.
13 November 1998 Fourth request for reconsideration, in respect of cease effects determination of 9 October 1998.
3 March 1999 Reviewable decision.
9 March 1999 Reviewable decision sent to Mr Dibbs
As well as constantly challenging determinations in regard to his compensation claims, Mr Dibbs also had become involved in proceedings against Australia Post before the Industrial Relations Commission in about June 1997. Further as Mr Dibbs tried to make a success of his new employment after leaving Australia Post he received letters dated 16 April 1998 and 4 May 1998, asking him a number of questions concerning his current employment and medical treatment. Those letters were said to have been sent "in order to accurately manage the claim", but the evidence suggests that no compensation was being claimed at that time. During June 1998 he was required by Australia Post to attend a medical appointment with Mr Kostos, a rheumatologist, in respect of the "ongoing management of his claim". The report obtained from Dr Kostos provided the basis of the cease effects determination of 9 October 1998.
I note that Dr Moore, a psychiatrist, in his report of 29 February 2000 (A9 p4) wrote:
He recalls a sense of enormous relief when he finally took the package from Australia Post, and he felt unable to have any further contact with them in the time subsequently because of the activation of upset which he immediately experienced. I understand that his ComCare claim has only recently been reactivated, and sufficient time has gone by to allow him to face the prospect of the stressors associated.
In a later report of 12 April 2000 (A10) Dr Moore repeated that opinion and added:
My hand written notes of 29th February 2000 "left Australia Post, huge relief, but unable to face the continuing problems and the freedom was fantastic, I felt I could get on with my life".
Thus, my advice to the Tribunal is that in March 1999, when faced with further contact with the Commonwealth, through having to appeal his entitlements under the ComCare Scheme, Mr. Dibbs was not at that time able to face the prospect and has only recently felt secure enough in his new job, and distanced himself sufficiently from Australia Post, to allow him to face the prospect of resuming contact with the Commonwealth.
In March 1999 he was not able to do this because of his psychiatric disorder and, hence, his inability to appeal the decision of ComCare at that time to the AAT.
Dr Moore in his reports referred to another stressful factor concerning Mr Dibbs' employment with Australia Post. This arose out of him being required to perform some cleaning up duties at the site of the Queen Street massacre. I find that the upsetting memories of that incident played a part in Mr Dibbs' reluctance to again become involved with Australia Post in March/April/May 1999. Dr Nicola also provided a report dated 18 April 2000 (A5) in which he wrote that Mr Dibbs had consulted him on a number of different occasions from March to September 1999 and had expressed significant feelings of stress during that time.
In the light of that medical evidence and the history of his dealings with Australia Post, I accept Mr Dibbs' evidence and find that the reason he was uncertain whether to seek review of the reviewable decision during the prescribed period was that he found any dealings with Australia Post stressful, and he wanted to concentrate on his new employment and hoped he would overcome his compensable injury. I find that to be a reasonable explanation for not lodging the application for review within the prescribed 60 day period.
Ms Sdrinas' evidence provided an explanation of the delay to February 2000 in lodging the application. I find that unfortunately Mr Dibbs' matter did not receive the prompt and efficient attention one would have expected from an experienced solicitor like Ms Sdrinas. She was on maternity leave when the reviewable decision was sent to Mr Dibbs. The covering letter did not remind him of the 60 day time limit although that is set out in the Notice of Rights which was presumably sent with the reviewable decision. Mr Dibbs had no doubt received such notices in respect of the earlier compensation decisions. Because Ms Sdrinas was on maternity leave at the time the reviewable decision was received, she did not diarise the matter as she would normally have done. After her return to work in April 1999 she did not review Mr Dibbs' file until June 1999 when an appointment was made for Mr Dibbs to see her on 16 June 1999. He did so and Ms Sdrinas said that in their discussions he told her he wanted to review the reviewable decision. Her note indicates that she asked Mr Dibbs to mention to Dr Nicola that she would be seeking a report from Dr Nicola in order to assess whether there was an ongoing compensable injury. Ms Sdrinas said that she told Mr Dibbs that she would write to Dr Nicola but that she overlooked doing so. It was not until Mr Dibbs telephoned Ms Sdrinas on 14 September 1999, and she got out the file, that she realised she had omitted to write to Dr Nicola. Even then Ms Sdrinas did not telephone or write to Dr Nicola explaining the urgency of the matter. She sent him a standard letter requesting a report and his report was not received until December 1999. Ms Sdrinas then waited until she had seen Mr Dibbs again in January 2000 before lodging the application for review.
I would have thought that as soon as Ms Sdrinas received instructions that Mr Dibbs wanted to proceed with the application for review in June 1999, it would have been appropriate to lodge the application together with the application for an extension of time, bearing in mind that the prescribed period had already expired. It is unfortunate that Ms Sdrinas not only failed to do so, but also omitted to write to Dr Nicola in June 1999 as she had agreed to do, and when she did finally write to him in September she neither emphasised the urgency of the matter nor followed up the receipt of the report for almost three months.
I do not accept Mr McInnis' submission that the default after 16 June was that of Mr Dibbs. He had left the matter in the hands of his solicitor. He was entitled to expect that it would be dealt with in a professional manner befitting the urgency of the situation. I share Mr McInnis' concern that this explanation for the delay was not provided prior to the hearing. It may have avoided the necessity for a hearing, thereby saving everybody time and expense.
I find that the delay after 16 June is attributable to Mr Dibbs' solicitors. In the light of Commonwealth v A'hearn I find that Mr Dibbs has provided an acceptable explanation for that delay. I also find that Mr Dibbs provided an acceptable explanation for his own delay prior to 16 June when he saw Ms Sdrinas.
The next matter to consider is whether Mr Dibbs, between early May and 2 February 2000 made Australia Post aware that he contested the finality of the reviewable decision. I find he did not do so.
I do not find that there is any relevant prejudice to the respondent occasioned by the delay between early May 1999 and February 2000. Mr McInnis conceded that his client had had Mr Dibbs medically examined in June 1998 and could have a further medical examination if required. There is no issue as to loss of records or missing witnesses.
Wilcox J, in Hunter Valley, did refer to the public considerations which may indicate that an extension of time should not be granted, even where there is no prejudice to a respondent. I do not find that other people or established practices will be unsettled by the granting of an extension of time in this matter. This is a matter of interest only to Australia Post and Mr Dibbs. The delay is not great and there is no public interest against the granting of the extension.
This is a matter which on its merits seems to require further consideration of the medical evidence. The issue is whether or not Mr Dibbs still suffers impairment or incapacity or requires medical treatment as a result of the motor vehicle accident on 3 October 1995. The position is complicated by medical opinions that he had underlying disc degeneration prior to the accident, although it was asymptomatic. There is also a question as to the significance of the C5-C6 disc protrusion. Both Mr Dibbs and Australia Post seem to consider that they derive support from the reports of Dr Findeisen. A hearing may be needed to clarify that issue. Dr Findeisen's reports are not before me, but Mr Dibbs' solicitors in their letter of 22 December 1998 to Australia Post wrote:
We note Dr John Findesen's [sic] report dated 30th July, 1996, which indicates that "I have little doubt that the car accident was the cause of his disc protrusion and also his soft tissue pain and it has also caused his underlying disc degeneration to become symptomatic."
The delegate in paragraphs 1–3 of the reviewable decision referred to Dr Findeisen's reports. The delegate concluded that Mr Dibbs had suffered only temporary aggravation of underlying disc degeneration, and that the C5/C6 disc bulge was not of clinical relevance. There is also an issue as to the interpretation of the reports of other medical specialists who have examined Mr Dibbs.
The respondent in its Notice opposing the application submitted that the fact that Mr Dibbs does not currently appear to require much medical treatment or time-off work due to his neck injury indicates that his claim has little merit. That issue goes to quantum rather than merit. As Mr Dibbs made clear in his letter to Australia Post of 11 June 1997, he is concerned about what he sees as a "lifetime injury." There is no doubt that the injury occurred in compensable circumstances. The issue between the parties is whether the compensable aspect of Mr Dibbs' neck pain has ceased. Is he suffering from underlying disc degeneration, unaffected by the car accident in October 1995, or is that accident still playing a part in the current situation? Mr Dibbs hopes that his neck injury will not interfere with his capacity to work. But, in case it does he wants to have the opportunity to establish that he remains entitled to compensation. Further, medical and like treatment and rehabilitation at the appropriate time may reduce the likelihood of incapacity for work. I find that the substantive application does have merit.
I consider that it is fair and equitable in the circumstances to grant Mr Dibbs an extension of time. Considerations of fairness as between Mr Dibbs and other people in a like position do not indicate that Mr Dibbs should not be granted an extension of time. If other people in similar circumstances also seek extensions of time to lodge applications for review with the Tribunal their applications will be dealt with on their merits. There is no problem for those who have lodged their applications in time. Those who have not will need to show that it is fair and equitable in the circumstances of their case that they be granted an extension of time.
I have decided to grant the extension of time sought by Mr Dibbs. The time for lodging an application for review of the reviewable decision of 3 March 1999 will be extended to 2 February 2000.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member
Signed: Anne O'Rourke
AssociateDate/s of Hearing 13 June 2000
Date of Decision 21 June 2000
Counsel for the Applicant Mr P Trigar
Solicitor for the Applicant Ryan Carlisle Thomas
Counsel for the Respondent Mr M McInnis
Solicitor for the Respondent Sparke Helmore
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