Fitt and K & S Freighters Pty Limited (Compensation)

[2019] AATA 4374

Fitt and K & S Freighters Pty Limited (Compensation) [2019] AATA 4374 (8 October 2019)

Division:GENERAL DIVISION

File Number:           2019/5639

Re:Michael Fitt

APPLICANT

AndK & S Freighters Pty Limited

RESPONDENT

DECISION

Tribunal:Dr Stewart Fenwick, Senior Member

Date:8 October 2019

Date of written reasons:        29 October 2019

Place:Melbourne

Pursuant to section 29(7) of the Administrative Appeals Tribunal Act1975, and upon written application by the Applicant dated 6 September 2019, the Tribunal extends the time for the making of an application for review of the decision of the Respondent to
30 November 2019.

. ............[sgd]...........................................................

Dr Stewart Fenwick, Senior Member

Catchwords

PRACTICE AND PROCEDURE – application for an extension of time to apply for review – whether satisfied that it is reasonable in all the circumstances to do so – whether prejudice arising from delay – extension of time granted.

Legislation

Administrative Appeals Tribunal Act 1975
Administrative Decisions (Judicial Review) Act 1977

Safety Rehabilitation and Compensation Act 1988

Cases

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Drew v Bates [2005] FMCA 1221
Ferrus v Qantas Airways Limited [2006] FCA 812
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344

Phillips v Australian Girls’ Choir & Another [2001] FMCA 109

REASONS FOR DECISION

Dr Stewart Fenwick, Senior Member

29 October 2019

INTRODUCTION

1. In an application lodged with the Tribunal on 6 August 2019 filed by his solicitors, Mr Fitt sought to extend the time to apply for a review of a decision by the Respondent. The reviewable decision was a reconsideration decision by the Respondent dated 17 October 2018 affirming an earlier decision dated 20 August 2018 denying liability under the Safety Rehabilitation and Compensation Act 1988 (SRC Act).

2. Mr Fitt first sought legal representation in June 2019. Prior to this he engaged directly with the Respondent over his claim for compensation lodged on 21 May 2018. This claim followed an injury report completed 15 May 2018, which in turn followed diagnosis of a left rotator cuff injury on 14 May 2018. This injury was said to relate to an incident in his work as a driver for the Respondent on 12 October 2017.

3. The Respondent afforded Mr Fitt an extension of time for reconsideration of this decision and a request for reconsideration was subsequently made, dated 26 September 2018. Included in this request were details of another incident at work, this one in March 2018.

4. Under s 65(4) of the SRC Act, the time for an application to the Tribunal in relation to a reviewable decision is extended from the usual twenty-eight days to sixty days. At the time of the hearing, no substantive review application had been filed. The extension application records that the reviewable decision was received ‘Approx 10 2018’, the figure ‘10’ being within the space on the form reserved for designation of the month. On the basis that the statutory period for making an application for review expired in mid-December 2018, the application for extension of time was made some eight months after this time.

5. As no substantive application had been filed there were no ‘T documents’ filed under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) prior to the commencement of the hearing. However, material initially available to me included the Respondent’s decisions dated 17 October 2018, and 20 August 2018. No written submissions were made by either party, although brief statements were made within the appropriate parts of the Tribunal forms seeking the extension of time, and, correspondingly, objecting to the extension of time.

6. The matter was heard by me by telephone on 8 October 2019 and, following brief oral submissions by both parties, was adjourned. This was because it was agreed that it was preferable that additional written material in the possession of both legal representatives was provided to me so that relevant background information could inform my considerations. Following provision, and consideration, of this material, I delivered an oral decision extending time under s 29(7) of the AAT Act. At the conclusion of the hearing the representative for the Respondent sought written reasons.

   LEGAL PRINCIPLES

7. The Tribunal may extend the time for making an application for review under s 29(7) ‘if the Tribunal is satisfied that it is reasonable all the circumstances to do so’.

8. This broad discretion is ordinarily interpreted in the light of principles found in judicial decisions arising from broadly comparable provisions permitting extension of time in other contexts. Probably the most frequently cited decision is Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344 (Hunter Valley), in the context of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). Also cited is the decision in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (Brisbane South), in the context of civil litigation sought to be commenced outside a statutory limitation period. A further decision is Phillips v Australian Girls’ Choir & Another [2001] FMCA 109, in the context of disability discrimination (Phillips).

9. In my oral reasons, I referred to several principles drawn from the authorities being: reasons provided for the delay; any prejudice arising from the delay; the merits of the substantive application, albeit that I am not required to make this a detailed inquiry; and, that I must be positively satisfied that it is proper to grant an extension of time.

10. I set out here, in summary form, the principles found in Hunter Valley (at paragraphs 18-23), as modified in Phillips (at 10), noting that they should be considered non-exhaustive guidelines (Hunter Valley at 17):

    (a)There is no onus of proof on the applicant for an extension of time. Special circumstances need not be shown but [the Tribunal] must be positively satisfied it is proper to grant an extension. The prescribed period is not to be ignored.

    (b)It is a prima facie rule that proceedings outside the prescribed time will not be entertained. It is not a precondition to exercise of the discretion that there be an acceptable explanation for the delay, but it is expected that one will normally be given.

    (c)Action taken by the applicant other than by making an application is relevant. It is relevant to consider whether the applicant has rested on their rights, and whether a respondent was entitled to believe the claim was finalised. (The reason being the need for finality in disputes and the ‘fading from memory’ problem, Hunter Valley at 19).

    (d)Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension.

    (e)Mere absence of prejudice is not enough to justify the grant of an extension.

    (f)The merits of the substantive application are properly to be taken into account.

    (g)Considerations of fairness between the applicant and other persons in a like position are relevant to the exercise of the discretion.

11. These principles have been further distilled to three:

    (a)explanation for delay;

    (b)any prejudice to the respondent; and

    (c)whether the applicant has an arguable case.[1]

    [1] Collier J, Ferrus v Qantas Airways Limited [2006] FCA 812, at paragraph 20, citing with approval Phipps FM in Drew v Bates [2005] FMCA 1221.

12. I referred to Phillips in my oral reasons, specifically, to the distinction made in that case (at 11) between the application of the principles set out above in different contexts.
    FM McInnes observed that the issue of public administration has less significance in a human rights application than it may in an application under the ADJR Act. His reasoning being that issues of certainty about government decision making may arise in public administration, but a discrimination claim usually relates to individual interests.

13. I also note that the decision of Brisbane South arose in the context of a statutory limitation period for a personal injuries claim, and where an application could be brought for this period to be extended in certain circumstances. In that particular case, the claim itself lay in medical treatment which had taken place seventeen years prior to the High Court’s consideration of the matter. The High Court emphasised that an onus was borne by the applicant to satisfy the court that an extension should be granted.

    SUBMISSIONS

14. The statement accompanying the application for extension of time reads: ‘I have recently sought legal advice and have been recommended to pursue my entitlements further. I sought an internal review on 26/9/18 and was unaware to proceed beyond the insurer to the AAT.’

15. The Applicant’s representative submitted at the hearing that her client was somewhat unsophisticated, and that he thought that the reconsideration decision was ‘the end of the line’. The Applicant had also apparently not been aware of the sixty day time limit. His representative submitted that the Applicant felt his matter had merit, and that it was not apparent that the matter may need pursuing further until he consulted a surgeon in November 2018. The Applicant continues his employment, on modified duties, with the Respondent.

16. In relation to the delay, the Respondent’s representative submitted that no adequate explanation had been given and that there were indeed delays throughout the claims process. The Applicant did not dispute receiving the reconsideration decision, nor being advised about the appeal process. It was also submitted that other employees were able to comply with the time requirements, but the Applicant has rested on his rights; there is a need for certainty in administrative decision making.

17. It was submitted that the Respondent was prejudiced as a result of the delay, including the delay in reporting the incident. Furthermore, there was prejudice arising from difficulty in gathering evidence should the claim proceed, and financial costs arising from interference in the Respondent’s capacity, as a self-insurer, to make proper provision for claims.

18. In relation to merits, it was submitted that the Respondent could not be certain that the first incident had taken place as claimed. There was also no claim properly on foot in relation to the second incident, as the Applicant had not lodged a claim in accordance with s 53 of the SRC Act.

19. Following the adjournment noted above, the further material provided to me included medical reports submitted by the Applicant (including radiology and letters from an orthopaedic surgeon), and a set of relevant documents from the Respondent including further claims management material, medical material, certificates of capacity for work, and an incident investigation report.

20. The report of the surgeon (Mr Brendan Soo, dated 20 November 2018) states that the Applicant has significant dysfunction in both shoulders, with bilateral rotator cuff tears related to the very physical nature of his employment. The Respondent’s incident investigation (report dated 16 October 2018) discusses the first incident in October 2017. The report states that the incident was not initially reported as the Applicant did not think he had injured his shoulder.

    CONSIDERATION

21. I am persuaded that a history of delay may be more an indication of limited capacity on the part of the Applicant, than a mere indulgence on his part. I accept the submission made by his representative that he can be understood as not being particularly sophisticated. I also note that the Respondent’s incident investigation records that the Applicant was not initially concerned about his injury.

22. I do not consider, however, that a prior history of delay, including the late lodgement of the claim itself, is necessarily pertinent to making a decision on the application for an extension of time.

23. The report of the Applicant’s surgeon was provided after the reconsideration decision was finalised, but within the sixty day appeal period. Therefore, I do not consider the date of this more definitive medical opinion particularly helpful to the Applicant’s position. The Applicant’s interests have, however, clearly been better served with the assistance of legal representation given the fact of this application being made following the engagement of a legal representative.

24. As to any prejudice, I do not assume that claims management, including financial provision for claims, and the capacity to properly respond in a Tribunal hearing, are unimportant issues from the Respondent’s perspective. However, I do not consider that the matter is of such an advanced age that these considerations outweigh other factors. The Respondent is not taken by surprise, having dealt for some time with the Applicant in relation to his condition and, indeed, continues to manage the Applicant in the workplace. Any disadvantage that might be visited upon the Respondent is outweighed by the real chance that substantive rights might be lost to the Applicant were an extension not to be granted.

25. It was in this context, at the hearing, that I cited Phillips. As noted above, the authorities cited arise in a range of contexts, each with its own characteristics. I find the reasoning in Phillips persuasive on the question of weighing the relative significance of the principles. Specifically, in the federal compensation jurisdiction, there is a relevant analogy in respect of the place of individual interests as against broader issues of public administration, as discussed in Phillips.

26. It is also for this reason that I am not satisfied that it is appropriate to follow a more strict approach to adherence to time limits such as that adopted in Brisbane South. That case sits within a distinct jurisdiction with particular, and different, rules relating to extension of time. Further, this decision directly conflicts with the other authorities in the important respect of the Applicant being said, in that case, to bear an onus.

27. The Respondent raised an objection related to the question of the merits of the underlying claim, by reference to a question over the form and content of the claim, or claims. As noted, the Respondent has been engaging with the Applicant in relation to his condition, and his continuing fitness for work. I am not satisfied that possible technical issues that may, or may not arise, in any substantive application before the Tribunal outweigh the broader consideration as to whether it is reasonable in all the circumstances to exercise the discretion to extend time in this case.

28. Finally, I am satisfied that the Applicant appears to be suffering from a relatively significant condition attributed to his employment. I have not been provided with any material that substantially challenges this.

    DECISION

29. In conclusion, and as noted above, I consider that in the absence of the exercise of the discretion to extend time in the Applicant’s favour, it is likely that he will lose the opportunity to have his condition and any potential legislative entitlements more fully considered.

30. Pursuant to section 29(7) of the Administrative Appeals Tribunal Act1975, and upon written application by the Applicant dated 6 September 2019, the Tribunal extends the time for the making of an application for review of the decision of the Respondent to
    30 November 2019.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the written reasons for the decision herein of
Dr Stewart Fenwick, Senior Member

.............[sgd]...........................................................

Associate

Dated: 29 October 2019

Date of hearing:	8 October 2019
Solicitors for the Applicant:	Ms Jennifer Lay Slater & Gordon Lawyers
Solicitors for the Respondent:	Mr Damian Clarke McInnes Wilson Lawyers