Dominello and Linfox Australia Pty Ltd
[2016] AATA 483
•8 July 2016
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 866REASONS 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 the prima facie rule that proceedings commenced outside the prescribed period will not be entertained, and an applicant must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time;
(b)a distinction is to be made between an applicant who has “rested on his rights”, allowing the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;
(c)any prejudice to the respondent caused by the delay is a material factor militating against granting an extension;
(d)the mere absence of prejudice is not enough to justify an extension; the “unsettling of other people” or of established practices is “likely to prove fatal to the application”;
(e)the merits of the substantial application are properly to be taken into account;
(f)“Considerations of fairness as between the applicant and other persons” in a similar position are relevant.
These principles are not to be applied mechanically. So, for example, an “acceptable explanation for the delay” is not an essential precondition to the exercise of the discretion, although it is to be expected that such an explanation will normally be given: Comcare v A’Hearn (1993) FCA 498; 45 FCR 441.
The principles in Hunter Valley Developments have been considered in subsequent cases and expanded on, or modified, according to the particular case. Relevant to these proceedings, in Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 at [18], Cowdroy J cited McGuinness FM in Phillips v Australian Girls’ Choir Pty Ltd and Anor [2001] FMCA 109 at [10]:
In the light of A’Hearn’s case, it is clear that … it should not be any longer regarded as law that the inexcusable delay on the part of the solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it’s fair and equitable in the circumstances to extend time.
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.
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.
This may be the case, however as Linfox submits, Carroll & O’Dea Lawyers re-lodged the claim with them on two more occasion; in early March 2014 and on 23 March 2015. I am satisfied that this would have alerted Linfox to the possibility that Mr Dominello still intended to pursue his claim. Even though it was not in the correct forum. This also accords with Mr Dominello’s submission to this Tribunal that he believed his claim was being actively pursued because his solicitor “kept filing claims”.
Mr Dominello acknowledged that there may be some “presumptive prejudice” to the respondent on account of the delay. However, medical witnesses could express opinions based on the available reports and statements, and the respondent would not be unduly prejudiced in this regard.
Where there is no prejudice to another party, delay will more readily be excused: Grundy v Wattyl Australia Pty Ltd [2002] FCA 1480. On the other hand, the mere absence of prejudice is not, in itself, sufficient to justify the grant of an extension: Lukic v Nolan (1982) 45 ALR 411. Where “actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period”: Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1.
The question that remains is one of merit.
In support of the claim, Mr Dominello provided a medical certificate from his general practitioner, Dr Tang dated 20 February 2013. The reviewable decision states that the report provided a diagnosis of “depression and anxiety”.
On 2 May 2013, Mr Dominello was examined by psychiatrist Dr Champion at the request of CGU Insurance, the former claims manager of Linfox (“CGU”), who subsequently produced a report dated 14 May 2013. This report was not before the Tribunal however Linfox contended that the report opined that Mr Dominello was not suffering from a condition outside the boundaries of normal mental functioning.
It is not for the Tribunal on an application such as this to determine the substantive proceedings. It is clear from the submissions put by both parties that Mr Dominello was examined around the time of the alleged incident, being the subject of the claim, and that contemporaneous reports and statements were taken.
While Mr Dominello is not required to show that the merits of his claim are strong, it could not be said that his claim has no prospects of success.
Linfox contends that even if liability were to be accepted for Mr Dominello’s claimed psychiatric condition, the contemporaneous medical evidence indicates that his entitlement to payment of compensation under the SRC Act would be limited. If successful, it was submitted that Mr Dominello’s claim would be limited to a closed period between 19 February 2013 and 20 March 2013, reflecting the period of time between when he first sought medical treatment for his injuries and when he was fit to return to full duties.
While there is force to this argument, I am unable to make a conclusive finding on this issue without having all the relevant medical evidence before me.
A weak claim, which may still have a prospect of success, or a claim where the value of compensation may be small is not a reason for the Tribunal to refuse an extension of time; Zanbergs and Commonwealth Bank of Australia [2014] AATA 866 at [31]-[33].
CONCLUSION
Taking into account all of the information before me, I am satisfied that it is reasonable in all the circumstances to grant the extension of time.
I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak ............................[sgd]............................................
Associate
Dated 8 July 2016
Date(s) of hearing 8 June 2016 Applicant In person Solicitors for the Respondent Moray & Agnew Lawyers
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