Elliot and Swire Pacific Ship Management (Australia) Pty Ltd

[2011] AATA 942

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 942

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/4902

GENERAL ADMINISTRATIVE DIVISION		)
Re		PHILLIP ELLIOT

Applicant

And SWIRE PACIFIC SHIP MANAGEMENT (AUSTRALIA) PTY LTD

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date21 December 2011  

PlaceBrisbane

Decision Pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 and upon written application by the Applicant dated 16 November 2011 the Tribunal extends the time for the making of an application for review of the decision of the respondent to 16 November 2011.

.................[Sgd].........................

Deputy President

CATCHWORDS

PRACTICE & PROCEDURE – application for extension of time – application of settled principles – misleading submissions

REASONS FOR DECISION

23 December 2011 Deputy President P E Hack SC    

1. The applicant, Mr Phillip Elliot, is a seaman who is, or was, employed by the respondent, Swire Pacific Ship Management (Australia) Pty Ltd (Swire). In July 2008 Mr Elliot injured his left shoulder in circumstances that made Swire liable to pay him compensation for that injury in accordance with the Seafarers’ Rehabilitation and Compensation Act 1992 (Cth) (the SRC Act).

2. On 13 May 2011 Swire determined that Mr Elliot had recovered from his injury and that it was “no longer liable” in relation to his claim. He was given notice of that determination by a letter of that date addressed to his solicitors, Maurice Blackburn. On 15 June 2011, and within the time limit prescribed by s 78(3)(b) of the SRC Act, Maurice Blackburn requested reconsideration of the 13 May 2011 determination. Section 79(1) of the SRC Act obliged Swire, as the employer, to reconsider its determination within 60 days of receiving the request for reconsideration. It seems to be common ground that that date expired on 15 August 2011. Where, as happened here, the employer has not made a decision on reconsideration, it is taken, by s 79(6) of the SRC Act, “to have made a decision, at the end of that period, disallowing the claim.”

3. The argument of the parties proceeded on the assumption, which I accept as correct, that in such circumstances s 25(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) confers jurisdiction on the Tribunal to review a deemed decision and that the effect of s 29(3) of the AAT Act was that the time limit for lodging an application in the Tribunal for review of the deemed decision was 28 days after the deemed decision date. On this basis Mr Elliot concedes that his application ought to have been lodged before 12 September 2011. He lodged his application, and an application for an extension of time within which to make that application, on 16 November 2011, a little over two months out of time.

4. Swire opposed the application for an extension of time.

5. On 21 December 2011 I heard the application and granted an extension of time to 16 November 2011. I said that I would publish reasons for taking that course because there were matters concerning the application that I considered ought be recorded. These are my reasons for granting the extension of time.

6. The principles governing the grant of an extension of time to make application for review are well known and need not be repeated. Here it is particularly relevant to consider the extent of the delay, the reasons for that delay, the apparent merit (or absence of merit) of the proposed application and any potential prejudice to the other party to determine whether, in the words of s 29(7) of the AAT Act, “it is reasonable in all the circumstances” to grant an extension.

7. Some further factual details need be noted. Upon receipt of the request for reconsideration, the solicitors for Swire, Jarman McKenna, wrote to Maurice Blackburn on 28 June 2011. So far as is relevant, that letter said:

   “We note your request for reconsideration of our client’s decision, and in accordance with the provisions of the Seafarers’ Rehabilitation and Compensation Act 1992, we will write to Comcare seeking its assistance.

   …

   We will revert back to you shortly. If you have any queries in relation to the above, please do not hesitate to contact us.”

   Section 78(4) of the SRC Act obliged Swire to arrange for a Comcare officer to assist it in reconsidering the determination. A Comcare officer provided “assistance” in a detailed report dated 17 August 2011. That report recommended that the determination under review be revoked and that liability be continued for medical treatment and incapacity. Additionally, it was recommended that consideration be given to accepting secondary conditions of chronic pain and adjustment disorder.

8. On 12 September 2011 Maurice Blackburn wrote to Jarman McKenna, noting the terms of the decision by the Comcare officer and asking to be advised of the position of Swire in relation to those matters. That prompted a response from Jarman McKenna dated 16 September 2011[1] which said, omitting formal parts:

   “We are in the process of seeking our client’s instructions in relation to the matters raised in your letter [of 12 September 2011]. We will revert back to you as soon as we receive instructions. We note your comments regarding the Comcare report. As you know, our client is not obliged to accept the recommendations of Comcare. It may well remain convinced that it is entitled to rely on the medical reports on hand supporting its determination. Nevertheless, it is always the case that matters are never free from doubt and accordingly, we reiterate our client’s previous invitation to you and your client to attend an informal conference.”

   The letter was devoid of any reference to the fact that, by that stage, the time for reconsideration had passed or any hint that Swire would seek to hold Mr Elliot to the time limits imposed by the SRC Act.

   [1]    The letter is marked “without prejudice” however there appears nothing in it that would warrant a claim for negotiation privilege; no claim for such privilege was made at the hearing of the application and no objection was made to the receipt of the letter in evidence.

9. Then Maurice Blackburn responded by letter of 29 September 2011. That letter noted that the solicitors, and, necessarily, Mr. Elliot, continued “to wait for your client’s reconsideration”. No response was received. Maurice Blackburn wrote again on 7 November 2011 complaining of the extent of Swire’s delay in undertaking the reconsideration. The letter concluded:

   “We continue to await your client’s reconsideration. Your client’s continued delay is prejudicing our client’s interests.

   We put you on notice that if your client does not issue its reconsideration decision within 7 days of the date of this correspondence we will assume that your client wishes to stand by its original decision and we will proceed with filing an Application for Review in the Administrative Appeals Tribunal without further notice.”

10. Again, there was no response. On 16 November 2011 the applications for review and for an extension of time were lodged in the Tribunal. On 28 November 2011 Jarman McKenna lodged a “Notice of Opposing Application for Extension of Time”. In an annexure to that document, after setting out matters of procedural history, the solicitors set out the basis of opposition in these terms:

    “8.In response to the applicant’s submissions made in relation to the application for extension of time, the respondent states:

    (a)On 15 August 2011, the respondent disallowed the claim in accordance with section 79(6) of the Act;

    (b)Any request for a written reconsideration of the determination dated 13 May 2011 was out of time,

    (c)The only action which has prejudiced the applicant is the applicant’s solicitor’s failure to recognise the time lines set out in part 6 of the Act. The applicant has recourse against its solicitors in this regard.

    (d)The respondent on the other hand is forced to defend a claim on which there has been delay which always leads to issues with evidence such as:

    (i)    Witnesses being unable to be located;

    (ii)   Witnesses memories fading with the effluxion of time;

    (iii)  Documents not being able to be located or located easily;

    (iv)  The respondent always having the potential of a claim being made against it which provides it no certainty

    (e)There are time limits upon claimants making claims to avoid exactly this prejudice occurring to respondents.”  

11. Some matters may be immediately noticed (apart from the patronising tone of the document). Paragraph (a) is simply wrong: on that date the respondent was taken, by operation of statute, to have disallowed the claim. Paragraph (b) misstates the position: Mr. Elliot had made a request for reconsideration of the 13 May 2011 determination, what was absent was Swire’s reconsideration decision. But the real vice is in paragraph (d). As Ms Haygarth, who appeared for Swire on the hearing, conceded, this is not a case where any of the prejudice asserted exists or could potentially exist. There are no witnesses who are unable to be located or with fading memories and there are no documents that are unable to be located. This is a case where liability was accepted and has now been denied on the basis of a medical report obtained as recently as March 2011. There was no factual basis, and there could never be a factual basis, for the submissions in paragraph 8(d). It ought never to have been advanced by a lawyer conscious of the overriding duty not to mislead a court or tribunal.

12. Perhaps there was no conscious attempt to mislead; perhaps the submission was in the nature of a template submission, that is, a submission made in every case without any application of legal skill or consideration of the issues that arose. If that be the case the Tribunal is entitled to expect a higher standard from practitioners, a fortiori practitioners acting for a party bound by the statute to assist the Tribunal to make its decision[2]. Moreover I would have thought that professional courtesy, at the very least, required Jarman McKenna, its its letter of 16 September 2011, to point out that Swire’s instructions were that the time limits would be relied upon strictly. The response of that date mislead Mr Elliott’s solicitor into thinking that they would not be relied on. He was not unreasonable in taking that view from the correspondence, especially having regard to the Comcare recommendation.

    [2] See s 33(1AA) Administrative Appeals Tribunal Act 1975 (Cth)

13. I turn then to the application of the principles to the present case. The delay here is in the order of two months. In relative terms that is not great. And it is readily explicable where Swire’s solicitors actively encouraged Mr. Elliot to believe that Swire was considering the Comcare recommendation for the purposes of making its reconsideration decision. It made perfect sense for Mr. Elliot’s solicitors to defer lodging an application for review, and potentially incurring costs unnecessarily, costs that might ultimately be borne by Swire, where they had been assured that Swire’s instructions were being sought about the subject matter of the Comcare recommendation. To take the point that the application was out of time, in the circumstances of this case, smacks of sharp practice.

14. There is abundant apparent merit to the claim; Comcare has given an independent, albeit non-binding, opinion that the decision ought to be revoked and liability accepted into the future. And, as has been conceded, there is no prejudice to Swire in granting an extension of time.

15. This was, then, a case where the interests of justice plainly required that an extension of time be granted.

    I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

    Signed:         .......[Sgd]............................................................
      Associate

    Date of hearing  21 December 2011
    Date of reasons for decision     23 December 2011
    Solicitors for the applicant        Maurice Blackburn
    Solicitors for the respondent     Jarman McKenna