Duval and Australian Postal Corporation
[2002] AATA 306
•3 May 2002
DECISION AND REASONS FOR DECISION [2002] AATA 306
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1748
GENERAL ADMINISTRATIVE DIVISION )
Re MARIE CELINE DUVAL
Applicant
And AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr M J Sassella Senior Member
Date3 May 2002
PlaceSydney
Decision The tribunal refuses the applicant's application for an extension of the time for lodging the application for review in this matter.
[SGD] M J SASSELLA
Senior Member
CATCHWORDS
WORKERS' COMPENSATION – application for review by Tribunal not lodged within statutory time limit – application for extension of time for lodging of application for review – application for extension of time refused because Tribunal lacked jurisdiction to review matter.
WORKERS' COMPENSATION – rehabilitation program – employee refused to undertake rehabilitation program – employee's compensation entitlements suspended until employee begins to undertake program – proceedings in relation to employee's compensation entitlements suspended until employee begins to undertake program – compensation authority cannot determine claims or reconsider decisions while suspension operates – Tribunal cannot hear application for review of suspension while suspension operates.
Safety, Rehabilitation and Compensation Act 1988 ss 37(1), (7), 38, 65(1), (4).
Administrative Appeals Tribunal Act 1975 ss 29(1), (2)(a), (7).
Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315.
Comcare v A'Hearn (1993) 45 FCR 441.
Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42.
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 54.
Re Petrou and Australian Postal Corporation (1992) 25 ALD 407.
Re Quis and Comcare (2001) 64 ALD 485.
Trajkovski v Telstra Corporation (1998) 81 FCR 459
Buck v Comcare (1996) 137 ALR 335; (1996) 66 FCR 359.
Re Peisley and Comcare [2001] AATA 121.
Chowdhary v Bayne (1999) 29 AAR 100.
Re Davis and Comcare (1997) 49 ALD 154.
REASONS FOR DECISION
3 May 2002 Mr M J Sassella Senior Member
HISTORY OF APPLICATION
This chronology is taken largely from the chronology attached to ex A4, the affidavit of the solicitor to the applicant, Ms Marie Celine Duval. This affidavit was dated 15 February 2002.
Ms Duval commenced work at the GPO in Sydney in 1990. In 1991 she injured her shoulder in a lifting incident. In 1994 she was in a motor vehicle accident on the way to work. She injured her shoulder, amongst other injuries, in this accident.
On 3 March 1994 Ms Duval lodged a claim for compensation with the Australian Postal Corporation ("the respondent"). This apparently led to payment of compensation.
There were various developments after this that are not centrally relevant. They include return to work attempts that proved unsuccessful and threats of suspension for failure to engage in a rehabilitation program.
On 26 October 1995 Ms Duval's solicitors lodged a claim for compensation in respect of depressive illness.
The respondent on 9 May 1996 accepted compensation liability for Ms Duval's injuries to her left arm and left leg.
The applicant attempted an unsuccessful return to work on 4 June 1996.
On 22 July 1996 the respondent wrote (ex R4) and inquired why the applicant was not engaging in her rehabilitation program. She was asked to provide specialist medical evidence showing why she had failed to participate in her rehabilitation plan. She was threatened with suspension if she failed to do this within 10 days of receipt of the letter.
On 14 August 1996 Australia Post wrote to Ms Duval (ex R2) requiring her to upgrade her rehabilitation program to three hours a day, three days a week. She was to commence at the International Mail Centre on 26 August 1996. She was told her rights would be suspended on 27 August 1996 if she failed to attend. The applicant did not attend, producing medical certification of unfitness for work.
This process was repeated in October 1996.
On 29 October 1996 Australia Post wrote to Ms Duval stating that it regarded her as having abandoned her employment.
On 30 January 1997 the applicant's solicitors wrote to the respondent seeking a review of "the decision" to suspend compensation entitlements taken on 27 August 1998.
On 20 February 1997 a delegate within Australia Post affirmed the decision of 27 August 1996 to suspend entitlements (ex R1). The letter included advice on a right of appeal to the Administrative Appeals Tribunal ("the tribunal").
On 24 March 1997 Ms Duval's solicitors wrote to Australia Post stating that Ms Duval did not wish to proceed with an appeal. The respondent replied noting that the appeal was withdrawn.
On 14 June 1997 the applicant's solicitor lodged a claim by the applicant for lump sum compensation for permanent impairment.
On 8 December 1998 Ms Duval approached her current solicitors, Castagnet Lawyers, to take over her case from Messrs Stockman & Evans, Solicitors. The new solicitors sought the file immediately. The file was not transferred until 6 February 1999.
On 23 February 1999 the applicant's current solicitors advised her, noting that an appeal to the tribunal had not been lodged in 1997.
Ms Duval was sent by her solicitors to see various doctors. Dr Golus, a neuropsychologist, could not see her until July 1999. She needed a second appointment with him, which was set for 4 August 1999.
Ms Duval's solicitors briefed counsel to advise on 13 September 1999.
In October 1999 Ms Duval's solicitors sought clinical notes on Ms Duval from two hospitals and reports from six doctors. Certain of these doctors refused to proceed without payment. Ms Duval could not afford these payments.
Dr Golus had still not reported by October 1999. Ms Duval's solicitors chased him up. This was repeated in November and December 1999. Dr Golus eventually provided his report (ex A23) on 21 December 1999.
Dr Caspary, the applicant's orthopaedic surgeon, had not reported by April 2000. He had ceased practice. All that was available was his clinical notes. These were to hand in August 2000.
Clinical notes from Royal Prince Alfred Hospital also did not arrive until August 2000.
Ms Duval's solicitors sent counsel what they had received. Counsel provided advice on 8 August 2000.
On 15 January 2001 Ms Duval's solicitor advised her that there was a need for further evidence from Dr Golus and Dr Lim, a psychiatrist, before an application for an extension of time could be lodged with the tribunal. However, Dr Lim required a prepayment which Ms Duval could not afford. Apparently Ms Duval did see Dr Golus.
Mr Castagnet's affidavit contains a number of references to problems involved in obtaining reports because medical experts were requiring payment of considerable amounts of money before they would provide reports. Ms Duval did not have the money to pay. An example is Dr Lim's letter of 30 May 2001 requiring $1,768.00 as a prepayment (ex A19).
Dr Golus did not report until 13 August 2001 (ex A24). He considered that "at the relevant time the applicant would have had difficulty handling decisions regarding legal matters".
On 19 October 2001 the applicant's solicitors sought a copy of Ms Duval's file from Australia Post. On 25 October 2001 they asked the respondent to review Ms Duval's case.
On 16 November 2001 the applicant's solicitors filed with the tribunal an application for review of the respondent's decision of "21" February 1997 (ex R1 – the correct date is 20 February 1997), the reviewable decision, which Ms Duval had received on or about 24 February 1997 (ex A1). On the same day an application for an extension of the time allowed for an application for review by the tribunal was filed for Ms Duval (ex A2). Mr Castagnet provided reasons for the delayed application in annexure A:
Ms Duval originally appealed against the respondent's decision to terminate her employment on 4 February 1997. She withdrew that appeal on 24 March 1997.
Ms Duval had psychological problems, as recognised by Dr J Chen in a report to Australia Post dated 23 March 1995 (ex A7). Dr Gyory had placed Ms Duval on antidepressant medication on 6 April 1995 (ex A5). Dr Lim diagnosed Ms Duval as suffering from a depressive illness and said she needed neuropsychological assessment on 17 December 1996 (ex A18)
When Ms Duval withdrew her appeal she did not understand that it would terminate all her rights to compensation. She was not psychologically robust enough to prosecute the appeal nor understand the implications of its withdrawal. [The tribunal pauses to query whether the institution or withdrawal of an appeal, apparently against her termination of employment, was directly relevant to her compensation entitlements.]
Ms Duval has not had sufficient funds or psychological resources to prosecute her appeal prior to this time. Her new solicitors have been unable to obtain up to date medical evidence, especially from Dr Lim who requires $1,768.00 prepayment.
Ms Duval recently asked the respondent to reconsider its decision of 20 February 1997 in view of the further medical evidence available but it refused in a letter received on 8 November 2001.
On 10 January 2002 Dr Lim wrote (ex A4, annexure B and ex A20) that Ms Duval was suffering from severe depression and physical distress. She was not fit to resume work and had been totally incapacitated for many years. He said that her depressive illness would have made it difficult for her to handle decisions about legal matters.
RELEVANT LEGISLATIONThe provisions relevant to the application for an extension of time and to the rehabilitation program context are:
The Safety, Rehabilitation and Compensation Act 1988 ss 37(1), (7), 38, 65(1), (4).
The Administrative Appeals Tribunal Act 1975 ("the AAT Act") ss 29(1), (2)(a), (7).
SAFETY, REHABILITATION AND COMPENSATION ACT 1988
Provision of rehabilitation programs
37(1) A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program and, where the authority so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee.
…
(7) Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program.
…
Review of certain determinations by Comcare
38(1) As soon as practicable after a rehabilitation authority (other than a relevant authority) makes a determination under section 36 or 37, the authority shall cause to be served on the employee to whom the determination relates a notice in writing setting out:
(a) the terms of the determination;
(b) the reasons for the determination; and
(c) a statement to the effect that the employee may, if dissatisfied with the determination, request Comcare for a review of the determination under this section.(2) An employee in respect of whom a determination under section 36 or 37 is made by a rehabilitation authority (other than a relevant authority) may, by notice in writing given to Comcare, request Comcare to review the determination.
(3) A request shall:
(a) set out the reasons for the request; and
(b) be given to Comcare within 30 days after the day on which the determination first came to the notice of the employee, or within such further period (if any) as Comcare, either before or after the expiration of that period, allows.(4) On receipt of a request, Comcare shall review the determination and may make a decision affirming or revoking the determination or varying the determination in such manner as Comcare thinks fit.
Modifications of the Administrative Appeals Tribunal Act 1975
65. (1) This section has effect for the purposes of the application of the Administrative Appeals Tribunal Act 1975 (in this section called "the Act") in relation to a reviewable decision.
(2) Section 21 of the Act has effect as if a reference in subsection (1A) to a presidential member included a reference to a senior non-presidential member authorised by the President for the purposes of the exercise of the powers referred to in that subsection.
(3) Section 24 of the Act has effect as if the reference to any place in Australia or an external Territory were a reference to any place, whether within or outside Australia.
(4) Subsection 29 (2) of the Act has effect as if the reference to "the twenty-eighth day" (first occurring) were a reference to "the sixtieth day".…
ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975
…
Manner of applying for review
29.(1) An application to the Tribunal for a review of a decision:
(a) shall be in writing; and
(b) may be made in accordance with the prescribed form; and(c)statement of the reasons for the application; and
…
(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.
…
(2) Subject to subsection (3), the prescribed time for the purposes of paragraph (1) (d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:
(a) if the decision sets out the findings on material questions of fact and the reasons for the decision - the day on which a document setting out the terms of the decision is furnished to the applicant; or
…
(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).
…
HEARING AND APPEARANCES
The tribunal convened a hearing in Sydney to consider the extension of time application on 20 February 2002. Ms Sharron Norton of counsel represented Ms Duval. Miss Rhonda Henderson of counsel represented the respondent. The tribunal had access to the following documentary evidence which was marked into evidence with the following exhibit numbers:
Exhibit A1 – Application to the tribunal for review of decision, 16 November 2001.
Exhibit A2 – Application to the tribunal for extension of time for lodging ex A1, 16 November 2001.
Exhibit A3 – Affidavit of applicant, 13 February 2002.
Exhibit A4 – Affidavit of Mr M J Castagnet, 15 February 2002.
Exhibit A5 – Report by Dr A N Gyory, director of rehabilitation medicine, Concord Repatriation General Hospital, 6 April 1995.
Exhibit A6 – Report by Dr E Caspary, orthopaedic surgeon, 17 May 1995.
Exhibit A7 – Report by Dr J Chen, occupational physician, 23 March 1995.
Exhibit A8 – Report by Dr Chen, 6 June 1996.
Exhibit A9 – Report by Dr Caspary, 22 August 1995.
Exhibit A10 – Report by Dr Caspary, 23 January 1996.
Exhibit A11 – Report by Dr Caspary, 4 March 1996.
Exhibit A12 – Report by Dr Caspary, 11 December 1996.
Exhibit A13 - Report by Dr K Sellathurai, general practitioner, 17 February 2000.
Exhibit A14 – Report by Dr Sellathurai, 17 May 2001.
Exhibit A15 – Report by Dr L F T Lim, psychiatrist, 21 September 1995.
Exhibit A16 – Report by Dr Lim, 8 December 1995.
Exhibit A17 – [nil]
Exhibit A18 – Report by Dr Lim, 17 December 1996.
Exhibit A19 – Report by Dr Lim, 30 May 2001.
Exhibit A20 – Report by Dr Lim, 10 January 2002.
Exhibit A21 – Report (general, four pages) by Dr I J Bryan, orthopaedic surgeon, 15 June 1998.
Exhibit A22 – Report (on permanent impairment, one page) by Dr Bryan, 15 June 1998.
Exhibit A23 – Report by Dr P Golus, psychologist, 20 December 1999.
Exhibit A24 – Report by Dr Golus, 13 August 2001.
Exhibit A25 – Report by Dr J Lawson, physician, 30 November 2000.
Exhibit A26 – Letter dated 23 January 1997 from Australia Post to Ms Duval.
Exhibit R1 – Reviewable decision dated 20 February 1997.
Exhibit R2 – Letter dated 14 August 1996 from Australia Post to Ms Duval.
Exhibit R3 – Letter dated 5 December 2001 from Australia Post to the tribunal opposing the extension of time sought for the applicant.
Exhibit R4 – Letter dated 22 July 1996 from Australia Post to Ms Duval.
Exhibit T1 – Letter dated 16 November 2001 from the tribunal to Australia Post seeking views on an extension of time.
During the hearing it became clear that a major hurdle for the applicant existed in the fact that she was suspended in accordance with s 37(7) of the Act. For reasons discussed below, this could depress the likely merits of her substantive application. That could, in turn, make the grant of an extension of time most unlikely. The tribunal allowed the applicant's representatives a period of time in which to make written submissions. The respondent was permitted to reply either orally or in writing. This generated the following submissions which have been given exhibit numbers:
Exhibit AH1 – Applicant's submissions, 4 March 2002.
Exhibit AH2 – Respondent's submissions, 20 March 2002.
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIALS IN SUPPORT OF THOSE FINDINGS
In considering whether to grant an extension of time the Tribunal applies the principles in the Federal Court decision, Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315. There are a number of criteria that arise from that decision. These are most notably:
(a)The applicant should provide a reasonable explanation for the delay. As Wilcox J says in his decision (at page 320):
"Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need to be shown but the court will not grant the application unless positively satisfied that it is proper to do so. … 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."
(b)The applicant should have taken action other than this application to make the decision-maker aware that he or she contests the finality of the decision.
(c)The respondent should not be unduly prejudiced if the time is extended.
(d)The merits of the substantive application are properly to be taken into account in considering whether an extension is to be granted.
There are some additional matters to note.
In Comcare v A'Hearn (1993) 45 FCR 441 the Federal Court pointed out that the lack of a satisfactory explanation for the delay need not be fatal to an application for an extension of time, although such an explanation should usually be given.
In the Cohen case (supra) an additional criterion was identified, however, in the current tribunal's view it has relevance in only some situations. This criterion is "considerations of fairness as between an applicant and other persons otherwise in a like position". It has no clear relevance in the present case.
Other cases have laid down principles that are broadly consistent with those in Cohen (supra). In Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42 President O'Connor said at page 48:
"The principles to be applied in considering an application for extension of time under s 29(7) … are:
(i) prima facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so.
(ii) it is relevant whether the applicant rested on his [or her] rights or took action to make the decision maker aware that the decision was being contested;
(iii) any prejudice to the respondent that would be caused by granting the extension of time is relevant;
(iv) any wider prejudice to the general public in terms of disruption to established practices is relevant;
(v) the merits of the substantial application are relevant; and
(vi) fairness of granting an extension of time as between the applicant and other persons in like position is relevant."
The wider prejudice to the general public, as it may be balanced against the interests of the individual applicant receives attention in other cases.
In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (High Court) McHugh J discussed the reasons for limitation of actions. At pages 551-552 he makes the following comments:
"The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates'. …
"…it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed. …
"A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose. …
"The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even 'cruel' to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period."
In Re Petrou and Australian Postal Corporation (1992) 25 ALD 407 at 411 the Tribunal cited with approval a comment by Deputy President McMahon in an earlier decision where he said:
"Any delay, of course, is prejudicial. The more time that elapses between the events to be examined and the date of the hearing, the more difficult it is to present meaningful evidence … Even if this were not so, however, the mere absence of prejudice would not be enough to justify the grant of an extension."
Senior Member McGirr said on the same page:
"Courts and tribunals ought as far as possible to assist litigants and the profession in the timely and efficient disposition of cases. At some point in time parties and their legal representatives ought to be able to consider that a case has been finalised."
However, in the Taylor case (supra) Toohey and Gummow JJ state at page 550, "The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent."
Kirby J at page 573 says:
"In judging prejudice, for the purpose of considering the order extending time, the matter to be weighed is the increase of prejudice after the expiry of the ordinary period of limitation. Until that time the law, as expressed in the Act, envisages that the defendant must accept any prejudice or delay without complaint."
The tribunal intends to proceed directly to consider whether the applicant has any chance of succeeding in this application on the merits if she is granted the extension of time. Most of the exhibits relate to the explanation for her delay in applying for a review. However, this criterion is of little importance if the applicant's application is fatally flawed.
The tribunal as currently constituted had occasion to consider the peculiar features of the suspension of an applicant's rights under s 37(7) of the Act in Re Quis and Comcare (2001) 64 ALD 485. In that case the tribunal said as follows (at pages 489-493 passim):
"…
13 For the Tribunal to have jurisdiction there must be a reviewable decision as defined in s 60(1) of the SRC Act. This is a decision made under s 38(4) or s 62 of the Act.
14 Section 38 of the SRC Act provides for Comcare to review a determination made by a rehabilitation authority under s 36 or s 37. A determination so reviewed can be the subject of an appeal to the Tribunal.
15 Section 62 permits a claimant to seek a reconsideration of a determination made by a determining authority such as Comcare. The determining authority has then to conduct the reconsideration. A determining authority can conduct a reconsideration on its own motion under s 62(1).
16 It will be noted that each of ss 38 and 62 hinge on the existence of a determination which is up for review.
Case law17 The decided cases support a role for the Tribunal in s 37(7) cases in that the Tribunal has jurisdiction to consider whether it has jurisdiction to inquire into the merits of the process whereby the employee has been denied compensation payments. Trajkovski v Telstra Corporation (above) and Buck v Comcare (1996) 137 ALR 335 are Federal Court authorities for that proposition.
18 However, the issue then becomes what the Tribunal can do if it decides that it has jurisdiction. For example, it may consider that the prerequisites in s 37(7) for that provision to have its automatic effect have not been met. In the instant case Mr Dubé, for the Respondent, distinguished this case from all previous reported cases on s 37(7) except for the Tribunal decision in Re Peisley and Comcare [2001] AATA 121. In the present case, as in the Peisley case (above), the sole issue in the only purported reviewable decision is the applicability of s 37(7). In the earlier cases there were uncontroversial reviewable decisions covering several other matters alongside the s 37(7) consequence.
…
20 In the Federal Court [Chowdhary v Bayne (1999) 29 AAR 100] Finn J noted a number of propositions. These included:
·Where, as in the instant case, but for the operation of s 37(7), an employee would be entitled to appeal to the Tribunal for a review of a decision made reviewable by the Act, ie what would normally be a reviewable decision, the Tribunal can consider the applicability of s 37(7) for the purpose of coming to a conclusion as to whether it has jurisdiction in the matter.
·A Tribunal decision that it does, or does not, have jurisdiction because of s 37(7) can be the subject of an appeal to the Federal Court under s 44 of the AAT Act. The Court will reach its own conclusion as to whether the Tribunal had jurisdiction to determine the appeal made to it.
…
22 In the instant case these principles lead to the following propositions:
1. The only issue the subject of a Tribunal appeal in the instant case is the suspension of regular payments. In the instant case, unlike the Chowdhary case (supra), there can be no suggestion that, regardless of s 37(7), the Tribunal has jurisdiction to entertain at least other appeals against reviewable decisions relating to such matters as physiotherapy or home services. No reviewable decisions have been made in respect of such other types of compensation payments.
2 The Tribunal is not obliged to consider whether it has jurisdiction to entertain appeals on such matters as physiotherapy or home services compensation payments because these are not in issue.
3. The employee can appeal to the Federal Court from any possible Tribunal decision that it lacks jurisdiction. This is under s 44 of the AAT Act.
4. It would be for the Federal Court in such an appeal to reach its own decision on whether the employee had a reasonable excuse under s 37(7) of the SRC Act.
…
31 In the Tribunal's view Mr Dubé correctly pressed that the Peisley (above) decision was directly relevant and, inferentially, was correctly decided. At the end of the day the Tribunal in performing its role in relation to the SRC Act must be able to identify a reviewable decision as a first step. In other cases involving s 37(7) such as Chowdhary (supra) there was a reviewable decision in respect of which the Tribunal could perform functions if it could find a method of assuming jurisdiction because s 37(7) had operated improperly. That is to say that in the earlier cases it was possible to review other decisions if the Tribunal could find that s 37(7) should not have operated at all because the applicant had a reasonable excuse for refusing or failing to undertake a rehabilitation program.
32In Peisley (above) and the instant case there was (and is) no reviewable decision. Even if the Tribunal finds that the requirements for the operation of s 37(7) have not been met there is no determination involved in the operation of s 37(7) because of its manner of drafting. There is then no determination available for reconsideration under s 62 or s 38(4) of the SRC Act. The instant case is even clearer than was Peisley (above). In the instant case the Applicant does not appear from the Section 37 Statement and documents to have sought under s 38(3)(b) a reconsideration of the terms of the determination that he undertake the rehabilitation program. It is not to the point that a Comcare review officer purported to reconsider the suspension outcome but affirmed it on the basis that the Applicant was out of time in seeking the reconsideration. That purported reconsideration was a nullity because it was not authorised by the SRC Act. Although it bears the signs of being a reviewable decision it is not any such thing in law.
…"
Ideally, then, the applicant, in order to question the validity of the suspension of entitlements before the tribunal, needs to have also sought review of adverse decisions in respect of other aspects of her compensation arrangements. These could, in Ms Duval's case, be any rejection of her claim for a permanent impairment payment or for reimbursement of medical expenses, matters where the tribunal clearly has jurisdiction. However, so far as the tribunal can ascertain, there has been no application to it for review of such decisions.
Ms Norton, for the applicant, made a written submission (ex AH1) dated 4 March 2002 in which she argued as follows:
The reconsideration done by the respondent's delegate on 20 February 1997 (ex R1) was a reconsideration of a decision made under s 37(1) of the Act.
The applicant lodged claims for a permanent impairment payment on three occasions. One of these was lodged on 9 August 1996, prior to the suspension of compensation entitlements. [A copy was said to be annexed to this submission but the tribunal cannot find such an annexure in the material provided.] Australia Post has declined to award a sum for permanent impairment. On 23 January 1997 Australia Post was said to have informed Ms Duval's former solicitors that such a claim could not proceed until a decision was made under s 38(4) of the Act. This advice was incorrect. Ms Duval had no right to seek a review under s 38(4). As the permanent impairment claim was lodged before the suspension, the letter of 23 January 1997 was a refusal to award a payment. It is a reviewable decision. On 23 October 2001 Ms Duval's current solicitors wrote to Australia Post enclosing a claim for compensation dated 3 March 1994 [a copy was included with this submission], a claim for permanent impairment dated 17 January 1997 [no copy of this was annexed to the submission] and updated medical reports. The respondent was requested to reconsider "the decision" [which the tribunal takes to be the decision of 23 January 1997 but this is not clear]. Australia Post responded in an undated letter received on 8 November 2001 [this letter was annexed to the submission] that the request was five years "out of time" and no review would be done. This was said to be a decision declining any further rehabilitation and compensation payments of any kind and, in particular, a denial of any payment for permanent incapacity. This was said to be a reviewable decision sufficient to allow the tribunal to consider the applicability of s 37(7) of the Act.
"[A]s an application for compensation and permanent impairment have [sic] been lodged and refused … this Tribunal would have the jurisdiction if it found that the provisions of s.37(7) were not applicable to go and determine the permanent impairment under s.24 of the Act. (O'Donoghue v Comcare). The applicant has made application to the respondent for payment of out of pocket expenses. These expenses have not been met. It is submitted that the non payment of this amount is a reviewable decision giving this Tribunal jurisdiction. …"
Miss Henderson, for the respondent, answered Ms Norton's submission on 20 March 2002 (ex AH2). Miss Henderson argued as follows:
The tribunal has jurisdiction to review a "reviewable decision" made under s 38(4) or s 62 of the Act (ss 60 and 64 of the Act refer).
Section 37(7) of the Act does not authorise or require the making of any decision. The suspension of rights to compensation and of rights to institute and continue proceedings occurs by force of the subsection and not because of any decision (Buck v Comcare (1996) 66 FCR 359; Re Davis and Comcare (1997) 49 ALD 154).
On 30 January 1997 Ms Duval's former solicitors wrote to Australia Post saying "… it is our client's wish for the decision of the 27 August 1996 to be reviewed under section 38" [the tribunal does not have a copy of this letter]. The letter did not request a review of a determination under s 37(1) of the Act.
On 20 February 1997 a delegate in Australia Post purported to conduct a "reconsideration under section 38 of the determination made 27.8.96 to suspend [the applicant's] entitlements under the … Act …" (ex R1). The delegate did not conduct a reconsideration of s 37(1) by virtue of any decision by the respondent. The purported reconsideration was not a reviewable decision.
The delegate did not conduct a review of a determination under s 37(1) of the Act. There is no reviewable decision relating to s 37(1) in existence.
Section 37(7) means that Ms Duval's rights to compensation under the Act, and to institute and continue proceedings under the Act, have been suspended since 27 August 1996.
This suspension of rights extends to compensation for permanent impairment. Section 37(7) of the Act does not provide that an applicant has a right to compensation for permanent impairment if she lodged a permanent impairment claim before the suspension under s 37(7) came into effect or if she lodged such a claim after the suspension came into effect.
While the applicant's rights are suspended the respondent cannot determine claims for compensation which the employee has made or will make, nor can it conduct reconsideration of determinations. The respondent has made no determination regarding the applicant's claims for permanent impairment. It has made no reconsiderations in respect of permanent impairment. "There are no reviewable decisions regarding the applicant's permanent impairment claims in existence."
While Ms Duval's rights are suspended she cannot institute or continue proceedings before the tribunal.
The tribunal thanks Ms Norton and Miss Henderson for their interesting and helpful submissions. However, the tribunal considers that Miss Henderson's propositions are accurate and largely dispose of this application. The tribunal comments as follows on Ms Norton's arguments.
The tribunal does not have a copy of Ms Duval's request for reconsideration dated 30 January 1997, however the reconsideration (ex R1) describes that letter as "requesting a reconsideration under Section 38 of the determination made 27 August 1996 to suspend her entitlements under the SRC Act 1988". While it is possible that the writer of ex R1 misunderstood the letter from Ms Duval's solicitors and that the letter did seek reconsideration of the decision to require Ms Duval to engage in the particular program of rehabilitation, the scheme of the Act is such that a request for reconsideration lodged as late as 30 January 1997 was ineffective because the suspension was already effective and, as Miss Henderson correctly pointed out in her submissions, the respondent cannot lawfully conduct a reconsideration once s 37(7) has taken effect. This argument is, therefore, of no use in advancing the applicant's case in the present proceedings.
Even if a claim for permanent impairment had been lodged for the applicant on 9 August 1996, prior to the operation of s 37(7), the scheme of the Act is that the matter was frozen as of 27 August 1996 when s 37(7) did commence to operate. Depending on what had occurred in relation to that claim the following would be the outcomes in accordance with the scheme of the Act. First, if the claim had not yet been considered, s 37(7) precluded Australia Post from proceeding to consider that claim. Second, if the claim had been considered and granted then the lump sum was receivable by the applicant. Third, if the claim had been considered and rejected before 27 August 1996 several results may have ensued. If the applicant had been notified and sought reconsideration before 27 August 1996, then a refusal to reconsider would be a decision reviewable by the tribunal. If the applicant had not been notified, or had been notified but had not sought reconsideration by 27 August 1996, Australia Post could not, as of 27 August 1996, proceed to review the permanent impairment rejection. The letter from Australia Post dated 20 February 1997 is not a reviewable decision regarding permanent impairment as it was not written in response to a request for reconsideration of a permanent impairment decision and, even if it had been, any reconsideration would have been carried out in error if embarked on as of 27 August 1996.
Australia Post's undated letter received by the applicant's solicitors on 8 November 2001 (ex AH1, attachment) refusing to reconsider earlier decisions was not a reviewable decision, contrary to the argument put by Ms Norton. For reasons already given, the applicant was not competent under the Act to seek what she did in a letter dated 23 October 2001. Australia Post, likewise, was not competent to issue a reviewable decision on or about 8 November 2001.
The tribunal is not certain that it understands Ms Norton's final argument but it seems to presuppose that the tribunal has been able to avoid the effects of s 37(7) of the Act. It then seems to suggest that the tribunal could proceed to make decisions on the applicant's degree of permanent impairment. This proposition would be unexceptionable if the effects of s 37(7) could be sidestepped.
It is unnecessary to examine Miss Henderson's submissions because the tribunal finds them sound and they have been incorporated into the above commentary on Ms Norton's arguments.
The tribunal therefore finds that, even if Ms Duval were granted an extension of time, the tribunal would have no jurisdiction to proceed to deliberate on the issues of substance in the case. It would thus be futile to grant the extension of time.
The tribunal will not proceed to consider the other criteria set out in the Cohen case (supra) and other authorities cited earlier on extension of time. While it is quite conceivable that Ms Duval had a satisfactory explanation for delay and there is no undue prejudice to the respondent, the tribunal is not favourably disposed to exercise its discretion to extend time if it would be futile to do so.
CONCLUSIONThe applicant is in an extremely difficult position if she is to obtain any further compensation. If she still had employment at Australia Post she could submit to the rehabilitation program and, once engaged in the program, seek to have it altered by seeking a review of the decision under s 37(1) of the Act. She could at the same time claim for permanent impairment and any compensable expenses. If any of these claims were refused she could proceed to reconsideration and then to the tribunal. However, her employment with Australia Post was effectively terminated in October 1996. She may wish to seek advice on whether that decision can be challenged.
DECISION
The tribunal refuses the applicant's application for an extension of the time for lodging the application for review in this matter.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella
Senior MemberSigned: .....................................................................................
AssociateDate/s of Hearing 20 February 2002
Date of Decision 3 May 2002
Counsel for the Applicant Ms S Norton
Solicitor for the Applicant Castagnet Lawyers
Counsel for the Respondent Miss R Henderson
Solicitor for the Respondent N/a
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