El Masri and Optus Administration Pty Ltd (Compensation)
[2023] AATA 525
•20 March 2023
El Masri and Optus Administration Pty Ltd (Compensation) [2023] AATA 525 (20 March 2023)
Division:GENERAL DIVISION
File Number: 2023/1139
Re:Omar El Masri
APPLICANT
AndOptus Administration Pty Ltd
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:20 March 2023
Date of written reasons: 29 March 2023
Place:Melbourne
Being satisfied that it is reasonable in all the circumstances, the Tribunal extends the time under s 29(7) of the Administrative Appeals Tribunal Act 1975 for the Applicant to lodge his application for review to 22 February 2023.
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Senior Member D. J. Morris
Catchwords
PRACTICE AND PROCEDURE – application lodged outside prescribed period with application to extend time – general principles to be considered in exercising discretion – where applicant had retained legal representatives – where legal representatives failed to lodge application for review of reconsideration decision – where applicant assumed application had been lodged on his behalf – where lateness also affected by holiday period – consideration of actions of applicant – applicant not found to have rested on his rights – legal representative admits oversight – applicant should not in this case face detriment because of non-performance by his legal representatives – time extended to lodge application for review – written reasons
WORKERS’ COMPENSATION – where application lodged claim – where claim denied – where applicant sought reconsideration – where reconsideration officer affirmed denial of claim – where applicant sought review by Tribunal – application outside prescribed period
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 29, 33A
Electronic Transactions Act 1999 (Cth), s 14ASafety, Rehabilitation and Compensation Act 1988 (Cth), s 62
Cases
Gabor v Secretary,Department of Education, Employment and Workplace Relations [2010] FCA 706
Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176
Negri v Secretary, Department of Social Services (2016) 70 AAR 103
O’Hara and Australian Postal Corporation; Re: [2023] AATA 402
R v Secretary of State for the Home Department; Ex Parte Mehta [1975] 2 All ER 1084; [1975] 1 WLR 1087
Zanbergs and Commonwealth Bank of Australia; Re: [2014] AATA 866REASONS FOR DECISION
Senior Member D. J. Morris
29 March 2023
Section 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) provides that the prescribed time for making an application is a period that commences on the day on which the reviewable decision was made and ends on the twenty-eighth day after the decision was given to the applicant.
In applications for review of reconsideration decisions made under the Safety,Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’), that provision of the AAT Act is modified by s 65(4) of the SRC Act to provide that the period is not 28 days but 60 days.
On 22 February 2023 Mr Omar El Masri, the Applicant, through his solicitors, lodged an application with the Tribunal for review of a reconsideration decision made by a delegate of Optus Administration Pty Ltd (the Respondent) under the SRC Act. He also lodged an application for an extension of time on the same date.
The reconsideration decision had been sent to Mr El Masri on 21 October 2022. It affirmed a determination dated 25 August 2022 denying the Respondent’s liability for their employee’s (i.e., the Applicant’s) claim for anxiety and financial instability due to the flare up of [his] Crohn’s disease.
Because the application was lodged some 65 days late, the Tribunal must decide whether to exercise the discretionary power provided in s 29(7) of the AAT Act for it to nevertheless be accepted out of time.
HEARING
An interlocutory hearing was held on 20 March 2023 by telephone, as allowed under s 33A of the AAT Act. The Applicant was represented by Ms Cassie Serpell of counsel, instructed by Mr Zachary Tsinanis of Andrea Sdrinis Legal. The Respondent was represented by Ms Emma O’Connor of Sparke Helmore Lawyers.
The Tribunal took into account the following documents –
(a)the reconsideration decision dated 21 October 2022 made by an authorized delegate of the insurer for the Respondent;
(b)the application for review, lodged 22 February 2023;
(c)the application for an extension of time, lodged 22 February 2023; and
(d)an affidavit of a solicitor of the Applicant’s legal firm, dated 16 March 2023.
On 6 March 2023 the Respondent had sent an email to the Tribunal advising that it opposed the extension of time “given the extraordinary length of time is now well past 60 days. The 60-day period expired on 20/12/2022.” However, shortly before the hearing, Ms O’Connor sent an email to the Tribunal advising that the Respondent withdrew its opposition to the request for an extension of time.
At the conclusion of the hearing, the Tribunal decided to extend time, and advised it would issue an order and then provide the parties with written reasons.
WRITTEN REASONS
The Tribunal provides these written reasons to the parties to explain in more detail why time was extended. In Negri v Secretary, Department of Social Services (2016) 70 AAR 103 (‘Negri’), Bromberg J considered a case where the Tribunal had made an oral decision and then provided a statement of written reasons. Ms Negri contended that the written reasons varied substantially from the oral decision. She ultimately succeeded at Court. But in considering the extent to which the Tribunal could edit or elaborate its oral reasons when producing written reasons, His Honour relevantly said at [27]:
… as long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).
In preparing these written reasons, I am satisfied that they reflect the oral reasons given on 20 March 2023. New reasoning for the decision has not been introduced, but I have included more detail on the reasons why in this instance the Tribunal was satisfied that, in all the circumstances of this matter, time should be extended.
CONSIDERATION
Regardless of whether the Respondent has changed its position in respect of the Applicant’s request for time to be extended, it is necessary for the Tribunal to reach a state of satisfaction required by s 29(7) of the AAT Act, which provides:
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) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
As the reconsideration decision dated 21 October 2022 was emailed to the Applicant it is deemed to have been received by him on that date: s 14A of the Electronic TransactionsAct 1999 (Cth).
The 60-day period of time which Mr El Masri had to lodge an application for review of the reconsideration decision with this Tribunal therefore commenced on 21 October 2022 (see s 29(3) of the AAT Act) and ended at the end of 19 December 2022. The application was lodged on 22 February 2023.
The legal representative of the Applicant submits, in the request for an extension of time, that:
The reason for the delay was an administrative error which caused reconsideration to be saved to our file but not diarised for [sic].
The Applicant has tendered an affidavit affirmed on 16 March 2023, made by a solicitor at the legal firm he had retained. The affidavit deposed that the writer received a copy of the reviewable decision by email from his legal assistant on 21 October 2022. He deposed that he assumed his legal assistant had diarised to, in his word, ‘issue’ an application to the Tribunal and that an appointment would be made with Mr El Masri in accordance with the firm’s usual practice.
Notably, the solicitor who made the affidavit was at that time a senior law clerk in the legal firm. He states that he was admitted as a solicitor in early December 2022
The affidavit deposed that the legal assistant spoke to Mr El Masri on 26 October 2022 and that she told him that he would ‘receive instructions’ (sic) once an application had been lodged in the Tribunal. The solicitor deposed that Mr El Masri wanted to receive updates and that he understood that there can often be periods of waiting.
The affidavit deposed that no action was taken by the Applicant’s legal representatives on Mr El Masri’s behalf between 26 October 2022 and 14 February 2023. On 14 February 2023, Mr El Masri contacted his solicitors seeking an update, because he had not heard anything about his matter.
The affidavit then relevantly stated, at [62]:
After reviewing the relevant material in this matter, I confirm that I am responsible for the oversight which led to a failure to lodge an application in the Tribunal within the required 60-day timeframe. The junior legal assistant notified me that we had received a reviewable decision and I did not take the necessary steps to lodge the application within the required period.
The Tribunal generally has reference to the principles regarding whether to grant an extension of time as set out by Wilcox J in Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176. They were also referred to and summarised in Gabor v Secretary,Department of Education, Employment and Workplace Relations [2010] FCA 706. In that case, Bromberg J said, at [7]:
(a) [W]hilst special circumstances need not be shown, applications for an extension of time are not to be granted unless the Court is positively satisfied that it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an “acceptable explanation for the delay”, and it must be “fair and equitable in the circumstances” to extend time;
(b) action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished; a distinction is to be drawn between a person who has made it known that the finality of the decision is contested and a person who has allowed other parties to believe that the matter was finally concluded. The reason for this distinction includes the need for finality of disputes.
(c) any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
(d) however, the mere absence of prejudice is not enough to justify the grant of an extension;
(e) the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted; and
(f) considerations of fairness as between the applicants and other persons in a like position are relevant to the manner of exercise of the court’s discretion.
It has often been stressed by the Courts that the so-called Hunter Valley principles should not be applied in a mechanical fashion. They are not an exhaustive checklist, and all the circumstances of the case must be considered. That is indeed echoed in the wording in s 29(7) of the AAT Act. The overriding consideration must be whether it is reasonable in all the circumstances to grant the extension.
At the hearing, Ms O’Connor said that the Respondent makes no submissions about whether Optus Administration Pty Ltd would be prejudiced if time was extended. In terms of the merits of Mr El Masri’s claim, the Respondent submitted that its position was that the merits were ‘poor’, but they could not say that his claim had no merit.
The Tribunal made the point that it is not a requirement for a case to be a strong case for time to be extended; it need only be a case that is arguable. However, if it is a weak case, that might militate against extending time: see relevantly R v Secretary of State for the Home Department; Ex ParteMehta [1975] 2 All ER 1084; [1975] 1 WLR 1087 (Lord Denning MR; Browne and Geoffrey Lane, LJJ, per the Master of the Rolls at [1088]).
Where there has been a failure by the legal representative of the Applicant, as in this case, I consider that is a special factor that is relevant in considering whether to extend time. There should be a distinction between the delay caused by the conduct of a legal representative where an applicant is not to blame, and a delay caused by the conduct of an applicant. I consider that an applicant’s conduct is a central consideration in determining whether failure by a legal representative provides an acceptable explanation for the delay.
The affidavit sets out the history of the legal firm’s connexion with the Applicant since he first contacted it in November 2021. The firm lodged the initial workers’ compensation claim on Mr El Masri’s behalf in February 2022. He subsequently instructed them in relation to that claim and in responding to various communications from Optus Administration Pty Ltd, including giving the firm authority to obtain medical records. It is clear to me that there have been regular interactions between Mr El Masri and the firm since the first contact in late 2021.
It was not entirely clear from the affidavit lodged with the Tribunal that Mr El Masri gave instructions to his solicitors to lodge an application with the Tribunal for review of the reconsideration decision, but I gleaned from the other contents of the affidavit that, because he gave instructions that he wanted to be kept up to date, he did indeed give such instructions. Ms Serpell confirmed the Tribunal’s understanding at the hearing.
It appears that Mr El Masri, having left the matter in the hands of the legal firm he had retained, did not follow up with his solicitors until 14 February 2023. The reason he made that contact was that he was concerned that he had not heard anything. That appears to be when the solicitor, who had been a law clerk working on the matter, realized that nothing had been done to lodge the application for review.
The solicitor attests that it was entirely his fault that the application was not lodged within the prescribed time. It is not clear to me who was the solicitor in the firm with carriage of the matter, but I accept that the employee of the firm was acting under the general supervision of the principal of the firm in carrying out his tasks. He subsequently was admitted as a solicitor, and from December 2022 it appears took on responsibility himself for carriage of this matter in the firm.
The Tribunal has considered other cases where applications have been made for time to be extended, citing delays caused by errors by solicitors. In some cases, there has also been an added ingredient of an applicant giving instructions to his or her legal representatives about when to lodge an application. For example, in Re: O’Hara and Postal Corporation [2023] AATA 402 (O’Hara), Senior Member Furnell observed at [28] that the fault of a person’s solicitors can constitute an adequate explanation for delay caused by that fault. However, in that case he went on to say, at [37], that the remark by the solicitors that “we have decided to put off lodging” (emphasis added) the application for review was suggestive not of passivity by Mr O’Hara but of active concurrence in the adoption of an approach to the lodgement in which delay was inherent. The learned Senior Member found that this was an important factor in refusing to extend time.
In Re: Zanbergs and Commonwealth Bank of Australia [2014] AATA 866 (Zanbergs), Senior Member Toohey said, at [27]:
I accept that an applicant who, for example, does little or nothing to pursue an application, or fails to act on advice, or gives inconsistent or ambiguous instructions, cannot be said to have an acceptable explanation for delay merely because her solicitors also delayed matters. Nor should delay by a legal representative be sufficient reason if the weight of other considerations is against an extension of time…
I agree with the learned Senior Member in her observations in this regard; the course of conduct of an applicant is an important element in weighing whether to exercise the discretion in s 29(7) of the Act.
I am satisfied that the circumstances of this case are that Mr El Masri had given apparent instructions to his legal representatives and reasonably thought they would be carried out. This was the same firm that had represented him during earlier dealings with his workers’ compensation claim to the Respondent. They appear to have acted efficiently for him on his behalf at earlier stages. Therefore, I consider he can have reasonably expected they would act expeditiously at this next stage, the application for review. There is no evidence that he had instructed them to delay lodgement (cf. O’Hara), nor that the instructions might have been ambiguous (cf. Zanbergs).
I note from the affidavit that Mr El Masri understood that there would be some ‘waiting period’, so would not have necessarily expected any early advice from his solicitors about progress. The Christmas and New Year holiday period then occurred. It was the Applicant’s own initiation of contact with his solicitors that alerted them to the fact that his instructions had not been carried out.
I do not find, in this set of circumstances, that the Applicant has rested on his rights. I have not examined the merits of his substantive case, having only been provided with the reconsideration record of decision. I therefore make no finding about the relative strength of Mr El Masri’s case, other than to accept the common ground of the parties before me that it is not a case devoid of merit. I accept there is a contest between the parties, so find that the matter is arguable. Submissions about the substantive claim may be left to when the matter is heard.
In all the circumstances, I find it is reasonable to extend time. It is my view that an administrative failure by the Applicant’s solicitors should not be visited upon Mr El Masri to his detriment in seeking the right of review provided for in s 62 of the SRC Act. The SRC Act was enacted by the Parliament as a beneficial piece of legislation. The fact that sometimes persons seeking workers’ compensation have vulnerable characteristics is reflected in the modification made by s 62(4) to allow a more generous period of time. With this context, it would be unfair for the Applicant to be blocked from availing himself of the entitlement to have the decision independently reviewed.
Lord Hailsham of St Marylebone, the distinguished Lord Chancellor, said that Lord Denning’s “strength lies in his rugged independence and unwillingness to tolerate injustice or pettifogging technicality in any form”[i]. An example of the general jurisprudence that Lord Denning MR brought to the law is a further passage in Mehta where he held that a solicitor’s mistake might amount to special circumstances for enlarging time, at [1088]:
We are often asked to extend time for the giving notice of an appeal. We never let a party suffer because his solicitors have made a mistake and are a day or two late in giving notice of appeal. We always treat it as a ground for extending time.
I find it would be unjust not to enlarge time for Mr El Masri. I find that the error in lodging the application within the prescribed time was solely due to an oversight by the Applicant’s legal representatives, which was unknown to him until 14 February 2023. He thought the application had been lodged. The late lodgement was not, to borrow Lord Denning’s words, ‘a day or two late’, and his legal representatives did not act as promptly as they might have to lodge the application and the extension of time, after they realized their mistake. But I find that delay in all the circumstances was not inordinate. It is to the credit of the legal practitioner concerned that he has wholly admitted it was his administrative oversight that led to the failure to lodge the application for review.
The late lodgement was not within the Applicant’s control and was expressly against his instructions. Accordingly, the Tribunal is satisfied that the discretion should be exercised, and that time should be extended until 22 February 2023 for Mr El Masri to lodge his application for review.
DECISION
Being satisfied that it is reasonable in all the circumstances to extend time under s 29(7) of the AAT Act, the Tribunal extends the time for the Applicant to lodge his application for review to 22 February 2023.
I certify that the preceding 40 paragraphs are a true copy of the written reasons for the decision of Senior Member D. J. Morris
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Associate
Dated: 29 March 2023
Date of interlocutory hearing: 20 March 2023 Counsel for the Applicant: Ms Cassie Serpell Solicitors for the Applicant: Angela Sdrinis Legal
Advocate for the Respondent: Ms Emma O’Connor Solicitors for the Respondent: Sparke Helmore Lawyers [i] Edmund Heward; Lord Denning (2nd Ed.); Barry Rose Law Publishers , Chichester (1999), at p 220
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