Dominello and Linfox Australia Pty Ltd - [2016] AATA 483

Dominello and Linfox Australia Pty Ltd [2016] AATA 483 (8 July 2016)

Division

GENERAL DIVISION

File Number(s)

2016/2339

Re

Sam Dominello

APPLICANT

And

Linfox Australia Pty Ltd

RESPONDENT

DECISION

Tribunal
Senior Member A Poljak

Date 8 July 2016

Place Sydney
Pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975, and after hearing both parties in relation to the application for an extension of time, the Tribunal extends the time for the making of an application for review of the Respondent's decision dated 24 July 2013 until 28 April 2016.
.....................[sgd]...................................................
Senior Member A Poljak
CATCHWORDS
PRACTICE AND PROCEDURE - extension of time - delay on part of solicitor - whether applicant rested on his rights - whether prejudice to respondent - whether application has prospects of success - extension of time granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 65
CASES
Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1
Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
Comcare v A’Hearn (1993) FCA 498; 45 FCR 441
Grundy and Comcare [2006] AATA 1019.
Grundy v Wattyl Australia Pty Ltd [2002] FCA 1480
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Lukic v Nolan (1982) 45 ALR 411
Phillips v Australian Girls’ Choir Pty Ltd and Anor [2001] FMCA 109
Zanbergs and Commonwealth Bank of Australia [2014] AATA 866
REASONS FOR DECISION
Senior Member A Poljak
8 July 2016
INTRODUCTION

This matter concerns an application for an extension of time with respect to the lodgement of an application for review, pursuant to section 29 of the Administrative Appeals Tribunal Act 1975 (“ the AAT Act”), of a decision made on 24 July 2013.
The respondent (“Linfox”) objects to the extension of time sought.
RELEVANT LEGISLATION
Ordinarily, an application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the decision is given to the applicant pursuant to subsection 29(2)(a) of the AAT Act. Section 65 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) modifies s 29(2) of the AAT Act by extending the time to 60 days within which an application for review of a determination under that Act must be made.
The Tribunal may extend the time for lodging an application if it “is satisfied that it is reasonable in all the circumstances to do so” pursuant to s 29(7) of the AAT Act.
PRINCIPLES TO BE APPLIED
The principles to be applied in determining an application for an extension of time are well-known. In Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344, Wilcox J said, at [348] and [349], that the principles guiding the exercise of the discretion could be distilled from the authorities as including, “although not in any exhaustive manner”:
(a)it is…

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 483
Decision Date: 8 July 2016

CaseChat Overview and Summary

This matter concerned an application for an extension of time by Mr Dominello to challenge a reviewable decision made by Linfox Australia Pty Ltd on 24 July 2013, which affirmed an earlier decision denying liability for a psychological injury. Mr Dominello had initially been represented by Maurice Blackburn Lawyers, who took no steps to challenge the decision. Subsequently, Carroll & O’Dea Lawyers were instructed, but despite being advised on the correct procedure to file an extension of time application, this was not done. Further claims were lodged, and Linfox repeatedly advised Mr Dominello of the need to apply for an extension of time. The failure to lodge the application was only identified by Carroll & O’Dea Lawyers in December 2015, and Mr Dominello confirmed his instructions to proceed in April 2016, with the application ultimately being lodged on 28 April 2016.

The primary legal issue before the Tribunal was whether it was reasonable in all the circumstances to grant Mr Dominello an extension of time to lodge his application for review. This required consideration of factors including the delay on the part of Mr Dominello's solicitors, whether Mr Dominello had rested on his rights, any prejudice to the respondent, and the prospects of success of the underlying claim.

The Tribunal, presided over by A Poljak SM, accepted that the responsibility for the delay lay with Mr Dominello's former solicitor. The Tribunal noted that delay on the part of a solicitor can be an acceptable explanation for a delay, referencing cases such as *Comcare v A’Hearn* and *Grundy and Comcare*. The Tribunal also considered *Zanbergs and Commonwealth Bank of Australia*, where considerable solicitor delay was accepted, and an extension was granted because the applicant's actions demonstrated an intention to proceed. While Linfox argued that it should be entitled to consider the claim finalised due to the repeated advice given to Mr Dominello's representatives that was not acted upon, the Tribunal found that the circumstances warranted granting the extension of time.

Orders

Orders of the court

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Background

Background to the litigation

All of the circumstances of the case must be considered, the overriding consideration being whether it is reasonable in all the circumstances to grant the extension. BACKGROUND On 25 February 2013, Mr Dominello lodged a claim for compensation with Linfox for a psychological injury, namely, “anxiety and depression” claimed to have arisen on or around December 2012 (“the claim”). The reviewable decision denying liability for Mr Dominello’s psychological condition was issued by Linfox, on 24 July 2013 (“the reviewable decision”). The reviewable decision affirmed the earlier decision of 20 May 2013. At the time the reviewable decision was issued, Mr Dominello was represented by Maurice Blackburn Lawyers. No steps were taken by Maurice Byers to challenge the decision. Carroll & O’Dea lawyers received instructions to act on Mr Dominello’s behalf around 24 October 2013 and a further claim was lodged with Linfox on Mr Dominello’s behalf in early 2014. Linfox and CGU informed a solicitor previously employed by Carroll & O’Dea Lawyers, on 4 November 2013 and 28 May 2014 that a determination had already been made in respect of the claim and the appropriate course of action would be to file an extension of time application in this Tribunal. This was not done. On 23 March 2015, a further claim was lodged with Linfox on behalf of Mr Dominello. On 5 May 2015, Linfox sent email correspondence to Mr Dominello advising him that the claim for compensation lodged outlined the same injury, date and cause of injury to the claim which had already been determined on 24 July 2013. Linfox informed Mr Dominello that if he wished to challenge the decision he would need to lodge an application for an extension of time with this Tribunal. The failure of Mr Dominello’s former solicitor to lodge an application for an extension of time was only identified by the firm in December 2015. Carroll & O’Dea Lawyers allege that Mr Dominello was not contactable until April 2016. Mr Dominello submitted to this Tribunal, and I accept, that he spoke with Carroll & O’Dea Lawyers in March 2016 and met with them on 21 April 2016. It was at this meeting that he confirmed his instructions to proceed with the application for an extension of time. On 28 April 2016, Carroll & O’Dea lodged an application for an extension of time on Mr Dominello’s behalf, being the subject of these proceedings. On 2 June 2016, Carroll & O’Dea Lawyers withdrew their representation of Mr Dominello. REASONS It is common ground that responsibility for the inaction in relation to Mr Dominello’s application for review lies with his former solicitor, who is no longer with Carroll and O’Dea Lawyers. Delay on the part of a solicitor may be an acceptable explanation for delay: Comcare v A’Hearn (above); and see Grundy and Comcare [2006] AATA 1019. In Zanbergs and Commonwealth Bank of Australia [2014] AATA 866, there had been considerable delay on the part of the applicant’s solicitors. However, the evidence showed that everything the applicant had done demonstrated, and was consistent with, an intention to proceed. The Tribunal granted the extension of time.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The reviewable decision denying liability for Mr Dominello’s psychological condition was issued by Linfox, on 24 July 2013 (“the reviewable decision”). The reviewable decision affirmed the earlier decision of 20 May 2013. At the time the reviewable decision was issued, Mr Dominello was represented by Maurice Blackburn Lawyers. No steps were taken by Maurice Byers to challenge the decision. Carroll & O’Dea lawyers received instructions to act on Mr Dominello’s behalf around 24 October 2013 and a further claim was lodged with Linfox on Mr Dominello’s behalf in early 2014. Linfox and CGU informed a solicitor previously employed by Carroll & O’Dea Lawyers, on 4 November 2013 and 28 May 2014 that a determination had already been made in respect of the claim and the appropriate course of action would be to file an extension of time application in this Tribunal. This was not done. On 23 March 2015, a further claim was lodged with Linfox on behalf of Mr Dominello. On 5 May 2015, Linfox sent email correspondence to Mr Dominello advising him that the claim for compensation lodged outlined the same injury, date and cause of injury to the claim which had already been determined on 24 July 2013. Linfox informed Mr Dominello that if he wished to challenge the decision he would need to lodge an application for an extension of time with this Tribunal. The failure of Mr Dominello’s former solicitor to lodge an application for an extension of time was only identified by the firm in December 2015. Carroll & O’Dea Lawyers allege that Mr Dominello was not contactable until April 2016. Mr Dominello submitted to this Tribunal, and I accept, that he spoke with Carroll & O’Dea Lawyers in March 2016 and met with them on 21 April 2016. It was at this meeting that he confirmed his instructions to proceed with the application for an extension of time. On 28 April 2016, Carroll & O’Dea lodged an application for an extension of time on Mr Dominello’s behalf, being the subject of these proceedings. On 2 June 2016, Carroll & O’Dea Lawyers withdrew their representation of Mr Dominello. REASONS It is common ground that responsibility for the inaction in relation to Mr Dominello’s application for review lies with his former solicitor, who is no longer with Carroll and O’Dea Lawyers. Delay on the part of a solicitor may be an acceptable explanation for delay: Comcare v A’Hearn (above); and see Grundy and Comcare [2006] AATA 1019. In Zanbergs and Commonwealth Bank of Australia [2014] AATA 866, there had been considerable delay on the part of the applicant’s solicitors. However, the evidence showed that everything the applicant had done demonstrated, and was consistent with, an intention to proceed. The Tribunal granted the extension of time. Linfox contends that it should be entitled to consider the claim finalised in circumstances where they advised Carroll & O’Dea Lawyers, on numerous occasions, about the appropriate procedure to challenge the decision under review with this Tribunal but which was never followed through.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL DIVISION
File Number(s)	2016/2339
Re	Sam Dominello
APPLICANT
And	Linfox Australia Pty Ltd
RESPONDENT

Tribunal	Senior Member A Poljak
Date	8 July 2016
Place	Sydney