Flahive and Comcare (Compensation)
[2020] AATA 3044
•18 August 2020
Flahive and Comcare (Compensation) [2020] AATA 3044 (18 August 2020)
Division:GENERAL DIVISION
File Number(s): 2020/1707
Re:John Flahive
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:18 August 2020
Place:Perth
The Tribunal finds that it is reasonable in all the circumstances to extend the time for the making of the substantive application to 20 March 2020.
..................................[SGD]...................................
Deputy President Boyle
CATCHWORDS
PRACTICE AND PROCEDURE – interlocutory application – extension of time – deemed service of reconsideration decision – documents deemed to have been served by post by operation of Acts Interpretation Act and Evidence Act – electronic service made - Electronic Transactions Act – considerations relating to granting extension of time application – length of delay – awareness of appeal rights – explanation for delay – merits of substantive application – prejudice to respondent – extension of time application granted
LEGISLATION
Acts Interpretation Act 1901 (Cth) – ss 29
Acts Interpretation Acts 1954 (Qld) – s 39(1)
Administrative Appeals Tribunal Act 1975 (Cth) – ss 21(1), 29, 29(1), 29(1)(d), 29(2), 29(2)(a), 29(2)(b)(i), 29(7)
Electronic Transactions Act 1999 (Cth) – s 14A, 14A(2)
Evidence Act 1995 (Cth) – ss 160, 163
Migration Act 1958 (Cth) – ss 501(3A), 501CA(4)(b)(ii)Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 14, 65(4)
CASES
Brown v Commissioner of Taxation [1999] FCA 563
Carter and Australian Securities and Investments Commission [2020] AATA 809
Danagher and Child Support Registrar (2014) 228 FCR 213
DHDL and Executive Director, Social Security Appeals Tribunal [2010] AATA 377
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
Hewson and Australia Postal Corporation [1998] AATA 71
Hutchinson and Comcare [2018] AATA 4600
John Oates and Secretary, Department of Social Security [1994] AATA 252;(1994) 37 ALD 241
Johnson and Minister for Home Affairs [2018] AATA 3469
Lucic v Nolan (1982) 45 ALR 411
Mason and John Holland Pty Ltd [2018] AATA 415Minister for Health and Aged Care v Pharmacia and Upjohn Pty Ltd [2001] FCA 75; (2001) 65 ALD 76
Repatriation Commission v Gordon (1990) 21 ALD 145
RLDY and Child Support Registrar [2020] AATA 688
Russell v Minister for Home Affairs [2019] FCAFC 110
Somba and Minister for Home Affairs [2020] AATA 425
Wagner and National Disability Insurance Agency [2020] AATA 1775
Windshuttle v Deputy Federal Commissioner of Taxation (1993) 93 ATC 4992REASONS FOR DECISION
Deputy President Boyle
18 August 2020
On 20 March 2020 the Applicant filed an application (the substantive application) for the review of a decision of a delegate of the Respondent made on 20 September 2019 to affirm a determination dated 7 August 2019 by which the Respondent declined liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for “left knee chondromalacia”.
By application filed in the Tribunal on 1 April 2020, the Applicant seeks an extension of time for making the substantive application.
The issues
The Respondent contends that the substantive application was made out of time and that the application for an extension of time for making the substantive application should be refused.
The Applicant contends that the substantive application was lodged within the required time. The Applicant’s written submissions, filed on 20 May 2020, in effect, raised only the argument that he was not effectively served with the reviewable decision until
21 February 2020 and that, therefore, the substantive application was made within the required time. Even the application for the extension of time filed by the Applicant on
1 April 2020 stated, in section 4, that the reason for the application was that he was only served with the reviewable decision on 21 February 2020. In other words, that no extension of time was required.
Notwithstanding that the Applicant’s written submissions were made after the Respondent’s written submissions, the Applicant’s submissions did not address the issues relevant to the exercise of the discretion to grant an extension of time for the making of an application which were extensively addressed in the Respondent’s submissions. At the hearing, however, the issues relevant to the granting of an extension of time were canvassed and the Applicant gave relevant evidence, largely in response to questions put to him by the Tribunal. Accordingly, the issues to be determined are:
(a)whether the substantive application was made within time; and
(b)if it was not, whether an extension of time for the making of the substantive application should be granted, or, as the Respondent expressed it (Respondent’s submissions para. 1.2), whether it is reasonable in all of the circumstances for such an order to be made.
The hearing
The application for extension of time was heard on 18 June 2020. The Applicant appeared on his own behalf and the Respondent was represented by Mr A Burgess. Appearances were by telephone.
Written submissions, with attachments A to K, were provided by the Respondent on
7 May 2020, and written submissions, with attachments 1 to 23, were provided by the Applicant on 20 May 2020. Subsequent to the hearing, the Applicant sent further written submissions by email (5.25 pm and 10.18 pm on 18 June and 24 June 2020).
These submissions dealt largely with the medical evidence relevant to the substantive application, as well as raising a complaint about not receiving some notices and correspondence from the Tribunal.Backgound
The following backgound is taken largely from the Respondent’s submissions. The Tribunal understands the background not to be disputed, at least for purposes relevant to the present application, by the Applicant.
(i)On 19 September 2002, the Applicant slipped in the men’s bathroom during the course of his employment with the Australian Taxation Office.
(ii)On 23 October 2002, liability for “bruise of left knee” (the accepted condition) was accepted under section 14 of the SRC Act.
(iii)On 29 April 2003, the accepted condition was amended to “tear of medial cartilage or meniscus of knee (left)” following an imaging report dated 17 December 2002.
(iv)By various emails the Applicant requested that liability be accepted for “left knee chondromalacia”.
(v)By determination dated 7 August 2019, the Respondent declined liability under section 14 of the SRC Act for “left knee chondromalacia”.
(vi)A copy of the determination dated 7 August 2019 was sent to the Applicant by email dated 9 August 2019.
(vii)The Applicant sought review of the determination by an email dated 9 August 2019.
(viii)
On 20 September 2019 a delegate of the Respondent affirmed the determination under review. The Respondent says that a copy of the decision dated 20 September 2019 was sent to the Applicant’s PO box by post and that a copy of the decision was also emailed to the Applicant on
23 September 2019.
(ix)On 20 November 2019 the Applicant emailed the Respondent and requested a reconsideration of the determination of 7 August 2019.
(x)
On 20 November 2019, the Respondent replied by email to the Applicant’s email of that date stating that the determination had already been reviewed and affirmed and attached a copy of the reconsideration dated
20 September 2019. That email also advised the Applicant that if he remained dissatisfied with the reviewable decision he could seek a review by the Administrative Appeals Tribunal.
(xi)On 20 November 2019 the Applicant responded to the Respondent’s email. The full text of the Applicant’s email is as follow:
Once again your attached document cannot be opened & is corrupted.
Please advise Postal Details when this was purportedly sent & please provide a copy of the Claimants [sic] Reconsideration Requests [sic].
No doubt these may confirm that the appropriate Notices & Requirements [sic] of the SRC Act have not been met by Comcare.
Which is NOT surprising given their desires [sic] to deny Claimant Rights [sic].
(xii)The Respondent says that on 13 February 2020 a further copy of the reconsideration dated 20 September 2019 was sent to the Applicant by registered post.
(xiii)
On 20 March 2020 the Applicant lodged the substantive application.
On 1 April 2020, following a letter from the Tribunal, the Applicant lodged an application for extension of time.
The legislative framework
Section 29(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides that an application to the Administrative Appeals Tribunal (AAT) for the review of a decision must, amongst other requirements, be lodged with the AAT within the prescribed time
(s 29(1)(d))Section 29(2) of the AAT Act relevantly provides:
(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 given to the applicant; or
(b) if the decision does not set out those findings and reasons:
(i) if a statement in writing setting out those findings and reasons is given to the applicant otherwise than in pursuance of a request under subsection 28(1) not later than the twenty-eighth day after the day on which a document setting out the terms of the decision is given to the applicant--the day on which the statement is so given;
Section 65(4) of the SRC Act provides that:
Subsection 29(2) of the [AAT] Act has effect as if the reference to “the twenty-eight day” (first occurring) were a reference to “the sixtieth day”.
Section 29(7) of the AAT Act permits the Tribunal “to extend time for the making by the person of an application to the Tribunal… if the Tribunal is satisfied that it is reasonable in all the circumstances to do so”.
Issue 1: Was the substantive application made within the required time?
The first issue for determination is whether the substantive application was made within the 60 day window prescribed by s 29(2)(a) or s 29(2)(b)(i) of the AAT Act (as amended by
s 65(4) of the SRC Act). If it was, then there is no need for an extension of time.The substantive application was made on 20 March 2020. For the substantive application to have been made within time, the document setting out the terms of the reviewable decision as described in s 29(2)(a) or s 29(2)(b)(i) of the AAT Act cannot have been given to the Applicant any earlier than 60 clear days before 20 March 2020. The Tribunal calculates this date to be 20 January 2020.
The first issue, or perhaps sub-issue, is whether the relevant document, the letter dated
20 September 2019 (Attachment C to the Respondent’s submissions) (the reconsideration decision) is a document which “sets out the findings on material questions of fact and the reasons for the decision” to start the 60 day period under s 29(2) of the AAT Act.Neither party made any submissions on this point, however, it is clear that both parties proceeded on the basis that the receipt of the reconsideration decision (whenever that was) triggered the commencement of the 60 day period for the closing of the window in which the substantive application could be made.
The reconsideration decision, relevantly:
(a)advised that it was a reconsideration of the determination dated 7 August 2019 following the Applicant’s request on 23 August 2019 for a reconsideration;
(b)advised that the determination dated 7 August 2019 was affirmed;
(c)set out the background to the Applicant’s claim and the history of the Respondent’s previous acceptance of a claim, but advised that liability for the Applicant’s claim for left knee chondromalacia was declined on the basis that the accepted knee injury from 2002 had resolved and that ongoing left knee symptoms were due to underlying, longstanding degenerative changes;
(d)concluded that the left knee chondromalacia was not caused by or materially contributed to by the workplace incident on 19 September 2002 and set out the medical evidence to support that conclusion;
(e)concluded that the left knee chondromalacia was not caused by or materially contributed to by the injury sustained by the Applicant in the workplace incident on 19 September 2002;
(f)attached the various medical reports and MRIs upon which the reviewable decision was based; and
(g)identified the relevant legislation and advised the Applicant of his right to have the reviewable decision reviewed by the AAT.
The Tribunal is satisfied that the reconsideration decision satisfies the requirements of
s 29(2)(a) of the AAT Act and that the giving of the reconsideration decision to the Applicant would start the 60 day period for closure of the window for the making of the substantive application.Applicant’s submissions
The Applicant’s submission is simple. He says that, as a matter of fact, he received the reconsideration decision for the first time on 21 February 2020 (Applicant’s submissions part (6)) and that therefore the substantive application was made within the required 60 day period.
Respondent’s submissions
The Respondent contends that the reconsideration decision was despatched to the Applicant on 20 September 2019 by post to PO Box 2156, High Wycombe 6057. This was the address on record for the Applicant and to which the Applicant had directed that correspondence be sent. It is, relevantly, also the address at which the Applicant says he received the reconsideration decision in February 2020.
The Respondent contends that the reconsideration decision was also emailed to the Applicant on 23 September 2019.
The Respondent contends that the reconsideration decision was received by the Applicant, or should be deemed to have been received by the Applicant, at the earliest, on
23 September 2019 when the reconsideration decision was emailed to the Applicant and by 26 September 2019 at the latest when the reconsideration decision was posted to the Applicant.
In respect of service by post, the Respondent submits that service should be deemed to be effected by 26 September 2019 and relies on s 29 of the Acts Interpretation Act 1901 (Cth) and Danagher and Child Support Registrar[1] (Danagher) in support of this submission.
[1] (2014) 228 FCR 213.
Section 29 of the Acts Interpretation Act is as follows:
(1) Where an Act authorises or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
The Respondent cites the following comments of Gilmour J in Danagher:
[28] The Tribunal (at [31]) concluded that written notice of the Decision was sent by pre-paid post to the address of the appellant on 13 June 2013. The Tribunal (at [32]) concluded, pursuant to s 29(1) of the Acts Interpretation Act, that service of the SSAT Registry’s letter dated 13 June 2013 (Thursday), and the enclosed copy of the Decision and reasons, was deemed to have been effected at the time at which it would have been delivered in the ordinary course of post, namely on 17 June 2013 (the following Monday).
[29] The Tribunal considered whether “the contrary [was] proved“. It concluded that it was not.
…
[31] The error of law contended for under Question 1(a) has not been established.
…
[39] In any event, even if the four day presumption in s 160 of the Evidence Act applies, rather than the ordinary course of post being two days, the appellant was still out of time with his Tribunal application. Service would be presumed to have been effected on 19 June 2013.
Issue 1: Consideration
Service of the reconsideration decision by post
The Tribunal notes that, in relation to the application of s 160 of the Evidence Act, Gilmour J at [38] of Danagher found:
It follows that the Tribunal is not a “federal court”. It is not a body required to apply the laws of evidence. Accordingly s 160 [Evidence Act] has no application.
The non-applicability of s 160 of the Evidence Act to proceedings in the Tribunal was confirmed by Deputy President Forgie in Wagner and National Disability Insurance Agency[2] (2 June 2020). As Gilmour J had in Danagher, Deputy President Forgie found at [14]:
…Were the Tribunal to fall within the definition of a “federal court”, which it does not, s 160 would have presumed that she received it on the seventh working day after it was posted i.e. 1 August 2018. Section 160 is not a provision whose operation is extended to an “Australian court” by s 5.
(Footnote omitted.)
[2] [2020] AATA 1775.
Deputy President Forgie did, however, hold that s 163 of the Evidence Act did apply, finding at [12]:
Division 3 of Part 4.3 of the Evidence Act 1995 (Evidence Act) does set out certain presumptions relating to postal and other forms of communication. Not every provision of the Evidence Act applies in the Tribunal but s 163 does apply because s 5 extends its operation to “Australian courts”. The expression “Australian court” is given an extended meaning in the Dictionary to the Evidence Act and includes: “a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence”. The Tribunal is such a body and so must have regard to s 163.
(Footnote omitted.)
Section 163 of the Evidence Act provides:
Proof of letters having been sent by Commonwealth agencies
(1)A letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared.
(2)In this section:
business day means a day that is not:
(a) a Saturday or a Sunday; or
(b) a public holiday or bank holiday in the place in which the letter was prepared.
letter means any form of written communication that is directed to a particular person or address, and includes:
(a) any standard postal article within the meaning of the Australian Postal Corporation Act 1989; and
(b) any envelope, packet, parcel, container or wrapper containing such a communication; and
(c) any unenclosed written communication that is directed to a particular person or address.
Note: Section 5 extends the operation of this section to proceedings in all Australian courts.
The Respondent is a Commonwealth agency[3] and the reconsideration decision is a letter for the purposes of s 163 of the Evidence Act and, by operation of that section, the reconsideration decision will be presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to the stated address on the fifth business day after the date of the letter. The Tribunal calculates that to be on
27 September 2019. No evidence to rebut that presumption was presented.
[3] See Dictionary to Evidence Act.
It is not disputed by the Applicant that the PO box to which the reconsideration decision was addressed, and which, by operation of s 163 of the Evidence Act, the reconsideration decision is presumed to have been posted, was the address that he had given the Respondent for correspondence to be sent. The Tribunal notes that the Applicant has given that same PO box address in the substantive application as the address to which correspondence is to be sent by the AAT. As noted above, it is also the address at which the Applicant says that he did receive the reconsideration decision, albeit he says not until 21 February 2020.
A PO box is an address to which notices and the like can be sent under the equivalent of
s 29 of the Acts Interpretation Act. In Fancourt v Mercantile Credits Ltd[4] (Fancourt) the
High Court (Mason, Murphy, Wilson, Deane, and Dawson JJ.) considered the operation of s 39(1) of the Acts Interpretation Acts 1954 (Qld), which was, materially, the same as s 29 of the Acts Interpretation Act. Notices had been sent by prepaid post to a PO box. In that case the Court found at [19] that:
In the present case, the notices were not returned undelivered and there was no other circumstance which suggested that they did not reach their destination. Hence under s. 39(1)(b) service is deemed to have been effected at the time when the notices would have been delivered in the ordinary course of the post.
[4] [1983] HCA 25; (1983) 154 CLR 87.
The operation of s 29 of the Acts Interpretation Act is not straight-forward. The section effectively has two operative parts. Ignoring the opening words dealing with the various expressions, “serve”, “give” or “send”, the first operative part of the section is:
…service shall be deemed to be effected by properly addressing, prepaying and posting the document…
(the first part)
and the second part of the section is:
…and, unless the contrary is proved, to have been effected at the time at which the letter would have been delivered in the ordinary course of post.
(the second part)
There is a question as to which part of s 29 the proviso “unless the contrary is proved” applies, or does it apply to both parts? In other words, is the deeming of service under the first part of s 29 subject to having the contrary being proved, or is it the second part, which deals only with the time of the deemed service, which is subject to being displaced by the contrary being proved?
On ordinary rules of syntax, the inclusion of “and” and the placing of the comma immediately after that word at the beginning of the second part of s 29 (see [33] above), means that the proviso relates only to the second part of s 29, that is the part that nominates the date of the deemed service, not the deeming of service itself. Accordingly, on that construction the deemed service of a document under the first part of s 29 is not subject to being displaced by “the contrary [being] proved”.
The Tribunal notes that Spender J in Repatriation Commission v Gordon[5] (Gordon) was of the view that the proviso in s 29 applied to both limbs of s 29, that is both the deeming of service and the time of service. His Honour observed at 153-154:
In my opinion, in relation to the deeming provision in the section to the time at which service was effected, the qualification “until the contrary is proved” is not restricted to proving a time of delivery different from the ordinary time at which the letter would be delivered, but encompasses proof that the letter was never delivered at all. Of course, any such claims would have to be very carefully scrutinised and the mere claim of non- receipt would be likely to be insufficient. Non-receipt is not the same as non-delivery.
In the view I take of s 29, there is a statutory presumption that what is proved to have been properly dispatched by post arrived at the usual time, but that non-delivery at that time, or non-delivery at all, might be proved by evidence. If this construction of s 29 is not correct, proof of posting would be sufficient to prove service, even in cases where after posting it could be proved that the posted letter had been destroyed before delivery.
[5] (1990) 21 ALD 145.
The reconsideration decision was properly addressed and was, by operation of s 163 of the Evidence Act, presumed to be sent by prepaid post five business days after the date of the document, namely on 27 September 2019. The reconsideration decision is therefore deemed to have been served. Even if the proviso applies to the first part of s 29 as contended in Gordon, the contrary has not been proved. As Spender J observed, evidence would be needed to prove that the “letter was never delivered at all” and the “mere claim of non-receipt would be likely to be insufficient”.
The Applicant saying that he had not received the reconsideration decision, when others had access to the PO box, is not sufficient to prove that service was not effected in the ordinary course of post as required to displace the deeming effect s 29 of the Acts Interpretation Act. As the High Court found in Fancourt at [21], in similar terms to the observation of Spender J cited at [36] above:
As the present case shows, delivery may be different from receipt by the intended recipient and, provided that delivery is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post. There is here no evidence of non-delivery…
The date of service of the reconsideration decision will be deemed to be “at the time at which the [document] would be delivered in the ordinary course of post” under the second part of s 29, “unless the contrary is proved”. Has the contrary been proved?
The correspondence was not, as it was in Fancourt, returned to the sender. Why then would a letter, correctly addressed to the PO box and presumed by operation of s 163 of the Evidence Act to have been sent by prepaid post five business days after the date of the letter (i.e. 27 September 2019), not arrive at the PO box? The answer may be that it did.
The Applicant’s evidence was that he did not receive the reconsideration decision.
That may be the case, however, as noted by Spender J, that is not proof that the reconsideration decision was not received into the PO box. It emerged at the end of the hearing that the Applicant is not the only person who has access to the PO box, in fact, it is not even the Applicant’s PO box. In replying to the Respondent’s counsel’s closing submissions, the Applicant advised:[6]
APPLICANT: …Nothing has ever been received by post. I do - I can get evidence to the fact that other parties also access the post box on a regular basis, or a semi-regular basis, because the post box is not actually registered in my name. And (Indistinct) has never also received said things.
[6] Transcript at 44.
The Tribunal finds that, by operation of the above sections of the Acts Interpretation Act and the Evidence Act, the reconsideration decision is deemed to have been given to the Applicant on 1 October 2019 (see [61] below for the calculation of the deemed date of service).
Service of the reconsideration decision by email
The Respondent also contends that the reconsideration decision was served by email on 23 September 2019 “when the reconsideration decision was emailed to the Applicant”.[7]
[7] Respondent’s submissions para. 1.29.
The Respondent further contends that, if the Tribunal does not accept that service was effected by email on 23 September 2019, then “service was effected by or should be deemed to be effected by 20 November 2019 when the decision was emailed to the Applicant again… and he responded to that email…”.[8] The Respondent’s written submissions did not cite any legislation or authority to support that contention, however, by email on 3 June 2020 the Respondent’s lawyers, noting that the Applicant’s submissions of 20 May 2020 had referred to the Electronic Transactions Act 1999 (Cth) (ET Act), provided a copy of the relevant section of the ET Act and a copy of the Tribunal decision in RLDY and Child Support Registrar[9] (RLDY). At the hearing counsel for the Respondent took the Tribunal to s 14A of the Electronic Transactions Act 1999 (Cth). That section relevantly provides as follows:
Time of receipt
(1)For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication:
(a) the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or
(b) …
(2)For the purposes of subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee's electronic address.
[8] Respondent’s submissions para. 1.34.
[9] [2020] AATA 688.
There was discussion at the hearing between the Tribunal and the Respondent’s counsel about the status, in light of subsection 14A(2) of the ET Act, of an attachment that the recipient says he could not open. Counsel made the following submission:[10]
In that respect, Deputy President, well, we would say, firstly, there was no agreement between the originator and the addressee that he couldn’t receive it. The applicant may have sent emails saying he was unable to, or would not be opening, communications from the respondent by PDF. But we would say that doesn’t fit within the terms of the subsection.
Noting, in particular, the applicant had previously received emails, and determinations by email, such as the determination in August 2019 and had requested a reconsideration of that determination as well. The applicant hasn’t provided any evidence as to being unable to access the reconsideration determination PDF.
[10] Transcript at 33-34.
The Tribunal then pointed out that the Applicant had advised the Respondent in November 2019 that he could not open the attachment to the email (see [8(xi)] above). Counsel then referred to the decision in RLDY and submitted:
We would submit that in this case, the applicant was capable of retrieving documents, but states that he believes documents are corrupted and/or contained viruses and therefore refuses to open those documents. The only evidence, other than the applicant’s testimony that a document was corrupted, is provided by the applicant in submissions but does not relate to the reconsideration decision, it relates to the initial determination.
The Tribunal then pointed out that the Applicant’s evidence, although somewhat confused, was, in effect, that he could not open the attachment, which the Tribunal accepts was the reconsideration decision. The relevant exchange at the hearing was:
APPLICANT: Now, the Electronics Act say it must be readily available and usable to me. It hasn’t been. I’ve made a number of instances where, immediately, within any time frame, I haven’t received it. I can’t make sense of it. It’s been sent to the Tribunal on that basis, that I can’t make sense of it.
…
TRIBUNAL:Well, sorry -- your language is -- I just need you to clarify. When you say you can’t make sense of it, what do you –
…
TRIBUNAL:When you say that, are you saying you cannot open the PDF document that is attached to the email?
APPLICANT: I can’t make sense of their behaviour.
TRIBUNAL:No, we’re not -- all I’m meant to
APPLICANT: Okay. Okay. But that (indistinct) it’s important
TRIBUNAL:Mr Flahive?
APPLICANT: Yes, and I can’t open ---
The principle that emerges from RLDY, as this Tribunal reads that decision, is that a party cannot rely on its failure to access information online, in the case of RLDY, through the MyGov portal, to defeat the deeming effect of s 14A of the ET Act. The tribunal in RLDY found, at [40], that:
…The Applicant consented to…the use of the MyGov portal and it is not within his powers to designate that there are limits on its use. Once consent is given, and once a person is enrolled in the MyGov system it is up to the sending authority to determine what is sent and what is not.
While the tribunal in RLDY did at [48] say:
Given that, section 14A(1)(a) of the ET Act is clear:
The information was capable of being retrieved on 6 August 2018 (section 14A(1)(a))
…
this Tribunal does not take that statement to be saying that the effect of s 14A(1)(a) of the ET Act is to deem everything that might be sent electronically, including an attachment to an email, as being capable of being retrieved. The evidence before the tribunal in that matter was that the applicant, having agreed to service through the MyGov portal, could have gone online to access the relevant document but had failed to do so. In that sense,
the information “was capable of being retrieved”, the applicant had simply chosen not to retrieve it. It therefore came within the deeming effect s 14A(1)(a) of the ET Act.
The decision in RLDY, however, does not address the meaning of the phrase “capable of being retrieved”. That issue was considered by the Full Court of the Federal Court in Russell v Minister for Home Affairs[11] (Russell). The issue in that case was whether an application to the AAT for review of a decision under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) not to revoke the cancellation of a visa under s 501(3A) of that act, had been lodged within the required time. The relevant facts are set out at [3] of the Court’s (Nicolas, Bromwich and Burley JJ) judgment as follows:
…Ms Russell attempted to lodge with the Tribunal by email an application for review of the delegate's decision (application email). She then shut down her email account. Due to the size of the attachment to her email, an automatic response was generated about 10 minutes later, as set out below. However, she did not log on again and see that response until six days later, on 6 September 2018. It was then that she read the automatic response, sent at 5.25 pm on 31 August 2018, that her application email was undeliverable with error messages of "unknown address error" and "message size exceeds fixed limit".
[11] Russell v Minister for Home Affairs [2019] FCAFC 110.
The Court in that case found that service under the ET Act of the application had not been effected within the required time, not because the electronic communication was not capable of being retrieved per se, but because the electronic communication was not “capable of being retrieved by the addressee at an electronic address designated by the addressee” (emphasis added) (s 14A(1)(a)) because the communication had not been received at the designated address. It had “bounced back” because it was too big for the AAT electronic mailbox.
The Respondent’s counsel’s submissions at the hearing were to the effect that the attachments to the emails (being the reconsideration decision) sent to the Applicant were “capable of being retrieved” for the purposes of s 14A of the ET Act, but the Applicant had simply chosen not to open them because he feared they were corrupted and contained viruses.[12] The Respondent submitted at the hearing that there was no evidence that the Applicant could not open the attachments. That, as the Tribunal pointed out at the hearing, is not quite correct in that the Applicant had claimed on a number of occasions in the past that he could not open the attachment. The most obvious example of that is the Applicant’s email of 20 November 2019, sent the day that he received the Respondent’s email of
20 November 2019 which attached a copy of the reconsideration decision (see [8(xi)] above).
[12] Transcript at 35.
The Tribunal does not accept the Respondent’s submission that there is no evidence that the Applicant could not open the attachment. The Tribunal accepts the Applicant’s evidence given at the hearing (see [44] above) that, for whatever reason, he could not open the attached reconsideration decision. That is supported by the several contemporaneous communications from the Applicant which claimed that he could not open the attachment.
That then begs the question whether the test in s 14A(1) of the ET Act of the electronic communication being “capable of being retrieved by the addressee at an electronic address designated by the addressee” is a subjective test or an objective one. Is the test whether, as a matter of fact, the particular circumstances of the recipient (such as the type of equipment used and software installed) allowed the recipient to open the attachment,
that is “retrieve” the communication, or is the test whether the communication was of the type which, provided the requisite equipment is used and software is installed, would ordinarily be retrievable?
Unfortunately, the Tribunal has been unable to find any authority which deals with this specific issue. The approach that the courts and previous tribunals have taken, however, indicate that the test is the former one, namely was the communication, as a matter of fact, retrievable at the designated electronic address. The Court in Russell looked at the particular circumstances and capabilities of the designated email address, in that case the capacity of the AAT electronic mailbox. It found that service under the ET Act had not been effected because the document could not be retrieved at the designated address because the mailbox attaching to that address was not large enough for the document in question (see [47] above). In other words, to determine whether the communication was retrievable, the Court in Russell looked at the particular circumstances and capacity of the designated electronic address. In the present case, for whatever reason, the attachment could not be opened. The legal consequence, however, as the Court found in Russell, is that the document was not retrievable at the designated address.
Accordingly, the Tribunal finds that s 14A(1) of the ET Act does not operate to deem the Applicant to have received the reconsideration decision electronically on 23 September 2019 or on 20 November 2019 as claimed by the Respondent.
Having found that the Applicant is deemed to have been served with the reconsideration decision on 1 October 2019 (see [40] above and [61] below), it follows that the substantive application was made out of time. The first issue, namely whether the substantive application was made within the required time, is determined in the negative.
Issue 2: Should an extension of time for the making of the substantive application be granted?
In its written submissions the Respondent referred to this Tribunal’s decision in Mason and John Holland Pty Ltd[13] (Mason and John Holland) and submitted that the principles considered in that matter were:
·it is the prima facie rule that proceedings commenced outside the period will not be entertained...;
·the Tribunal should be “… guided by what the justice of the case requires”; and
·in determining the question of an extension of time, the Tribunal should weigh together all relevant factors.
[13] [2018] AATA 415.
The Respondent cites [16] and [17] of Mason and John Holland and refers to the
Federal Court judgment in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment[14] (Hunter Valley) and the five considerations identified therein, namely:
[14] (1984) 3 FCR 344.
(a) whether there is an ‘acceptable explanation of the delay’ and it is ‘fair and equitable in the circumstances’ to extend time;
(b) whether the applicant was aware of their appeal rights, such that they can be said to have ‘rested on their rights’;
(c) any prejudice to the respondent caused by the delay;
(d) whether any others or the general public would suffer any prejudice as a result of the extension, or established practices be upset; and
(e) the merits of the substantive application.
and contends that in the present case the relevant factors are:
• Length of delay;
• The Applicant’s awareness of his appeal rights and the explanation for the delay;
• Merits of the substantive application; and
• Prejudice
The Tribunal agrees that the factors identified by the Respondent are the factors relevant to the exercise of the discretion to extend time under s 29(7) of the AAT Act. In this regard the Respondent referred to this Tribunal’s decision in Mason and John Holland.
That decision, in effect, applied the factors (insofar as they were applicable) identified by the Federal Court in Hunter Valley as did the decision in Carter and Australian Securities and Investments Commission[15] (Carter and ASIC) at [16]-[20].
[15] [2020] AATA 809.
The Respondent’s written submissions addressed each of the four factors identified in [57] above, with some appropriate expansion. As noted at [4] above, the Applicant’s written submissions did not, directly at least, address these factors notwithstanding that the Applicant’s written submissions followed the Respondent’s written submissions. At the hearing the Tribunal took the Applicant to the Respondent’s written submissions and asked the Applicant what his position and evidence was in relation to each factor identified in the Respondent’s submissions.[16]
Issue 2: Consideration
[16] Transcript at 20-31.
Length of the delay
Obviously in consideration the length of the delay, the reason for the delay is critical.
The Respondent’s written submission (paras. 1.36 – 1.44) deal specifically with the need for an explanation for the delay. Looking firstly at the length of the delay, based on service of the reconsideration decision by email on 23 September 2019, or a deemed service of the reconsideration decision by post on 26 September 2019 (para. 1.29), the Respondent calculates the delay in the Applicant making the substantive application to be between 116 and 119 days (para. 1.31).The Tribunal does not accept that the reconsideration decision was served by email on
23 September 2019 (see [41]-[53] above), but does accept that the Applicant is deemed to have been served with the reconsideration decision by post (see [26]-[40] above).
The Tribunal does not, however, accept the Respondent’s calculation of the date of deemed service by post as being 26 September 2019. The first step in finding deemed service by post was the finding that the reconsideration decision, dated 20 September 2019, was, by operation of s 163 of the Evidence Act, presumed to have been sent on the fifth business day after the date of the letter. No evidence was led by the Respondent as to the date of actual posting of the letter and the Applicant did not lead any evidence to raise sufficient doubt that the letter was sent on the fifth business day after the date of the letter (s 163 of the Evidence Act – see [29] above). The fifth business day after 20 September 2019 was 27 September 2019. Applying s 29 of the Acts Interpretation Act the reconsideration decision would be deemed to have been served (unless the contrary is proved) in the ordinary course of the post. The Tribunal has found that “the contrary” has not been proved (see [39] above). The Tribunal accepts, as Gilmour J did in Danagher (see [25] above), that the ordinary course of post is four days meaning that the reconsideration decision would be deemed to have been served on 1 October 2019.The difference between the Respondent’s calculation of the date of deemed service by post, 26 September 2019, and the Tribunal’s calculation of deemed service on 1 October 2019, is not material to the Tribunal’s consideration of the length of the delay.
The Applicant’s explanation for the delay is that he did not receive a copy of the reconsideration decision until it was delivered by registered post on 21 February 2020.
The Tribunal has found that, by operation of s 29 of the Acts Interpretation Act and s 163 of the Evidence Act, the Applicant is deemed to have been served with the reconsideration decision on 1 October 2019. That finding, however, does not equate to a finding that the Applicant actually received the reconsideration decision on or around 1 October 2019.
That is the effect of a deeming provision; it deems something to have occurred irrespective of whether or not it actually occurred. The decision being deemed to have been served on the Applicant by being deemed to have been received into the PO box on 1 October 2019, does not necessarily mean that the Applicant actually received it on or around that date. This approach is consistent with the High Court’s comments in Fancourt cited at [40] above.The Applicant’s evidence was definite that he did not received a copy of the reconsideration decision until 21 February 2020. The Applicant’s correspondence with the Respondent from September 2019 onwards was consistent with him not having received a copy of the decision. The Applicant currently has other applications in the AAT. It was at an interlocutory hearing dealing with a request for the issue of summonses in one of those other proceedings, matter 2019/4828, that in January 2020 the Applicant advised that he still had not received a copy of the reconsideration decision. Counsel appearing for the Respondent at that hearing advised that another copy would be sent to the Applicant. It is the Tribunal’s understanding that that did occur and that the copy sent by Sparke Helmore Lawyers following that interlocutory hearing is the copy received by the Applicant on 21 February 2020.
There is no reason, at least no reason apparent to the Tribunal, why the Applicant would say that he had not received the reconsideration decision if he had. He already has applications in the AAT relating to the same workplace incident which the Applicant claims gave rise to the injury the subject of the substantive application. The Respondent’s submissions in opposing the Applicant’s request for issue of summonses in matter 2019/4828, which was the subject of the interlocutory hearing in January 2020 referred to in [64] above, specifically referred to the “August 2019…claim for ‘left knee chondromalacia’ [which] was declined on the basis that the delegate was not satisfied that there was a causal relationship between the claimed condition of ‘left knee chondromalacia’ and the compensable condition of ‘left tear medical cartilage or meniscus of knee (left)”.[17] That is the claim that is the subject of the substantive application. The discussion at the time of the interlocutory hearing was as to the desirability of that left knee chondromalacia claim to be dealt with at the same time as the claim the subject of matter 2019/4828. A necessary step towards that was the Applicant being given a copy, or as the Respondent would say, another copy, of the reconsideration decision so that an application for review could be made to the AAT. It was in that context that counsel for the Respondent at the interlocutory hearing undertook, and obviously did, send another copy of the decision to the Applicant.
[17] Para. 2.7 of Respondent’s submissions dated 2 January 2020.
The Tribunal accepts the Applicant’s evidence that he did not have a copy of the reconsideration decision until he received the copy sent by the Respondent’s solicitors which he received in February 2020. The fact that he is deemed by operation of law to have been served with a copy on 1 October 2019 does not alter that fact. The Tribunal therefore considers that the Applicant has a reasonable explanation for the delay between the deemed service of the reconsideration decision and his lodgement of the substantive application on 20 March 2020.
Awareness of appeal rights
It is not contested that the Applicant was aware of his right to appeal the reconsideration decision. The need for the Applicant to lodge an application in the AAT for review of the reconsideration decision was clearly known by the Applicant. That is why he asked for a copy of the decision at the interlocutory hearing in matter 2019/4828 in January 2020.
For the reasons set out in [63]-[66] above, however, the Applicant’s awareness of his appeal rights was academic in circumstances where, because he did not have a copy of the reconsideration decision, he could not make an application for review, or at least could not make an informed application for review.
The Tribunal is mindful of the fact that under s 29(2) of the AAT Act, the time for making an application for review commences on the day that a decision is made and that the Applicant was aware, from some time shortly after the decision was made in September 2019, that an adverse reconsideration decision had been made. He could, therefore, have lodged an application for review in the AAT as soon as he became aware of the reconsideration decision having been made, even without a copy of that decision. The Applicant cannot, however, be criticised for not taking that course. It is reasonable that the Applicant waited until he received a copy of the reconsideration decision before making the substantive application so that he could consider the reasons for the decision before committing to making an application for review. This is particularly so in light of the fact that, under s 29(2), the start of the sixty day period to the end of the time limited for the making of an application does not start to run until a document setting out the findings on material questions and the reasons for the decision (s 29(2)(a) or (b)(i)) is served.
Merits of the substantive application
The Respondent contends[18] that in considering whether to grant an extension of time, it is not appropriate to embark on a trial of the merits, citing Hutchinson and Comcare[19] and Brown v Commissioner of Taxation (Brown).[20] The Tribunal agrees.
[18] Submissions para. 1.52.
[19] [2018] AATA 4600.
[20] [1999] FCA 563.
The Respondent contends[21] that “the Applicant’s prospects of success in this matter are limited”. The Respondent explains the reason why it considers that the Applicant’s prospects of success are limited by reference to the reasons of the delegate who made the reconsideration decision and the analysis by the delegate of the medical evidence, in particular, the MRI of September 2002, the reports of Dr Edibam and Dr Wang of November 2004, the report of Dr Nikellys of November 2006 as well as other medical evidence. The conclusion that the delegate made was that “…the workplace incident…did not contribute to the left knee chondromalacia condition because the degeneration existed prior to the workplace incident…”.[22]
[21] Submissions para 1.53.
[22] Submissions para. 1.57.
As is noted in the background section (see [8] above), in October 2002 the Respondent accepted liability for “bruise of left knee” and in April 2003 accepted liability for “tear of medial cartilage or meniscus of knee (left)”. It is not disputed by the Respondent that there was a workplace injury sustained to the Applicant’s left knee in 2002. The point of contention between the parties, already the subject of other proceedings in the AAT, is whether that injury, or a form of that injury, or a sequela of that injury, persist. While the Respondent’s position, as evidenced by the delegate’s reconsideration decision, is that no such injury persists, that is a matter that will need to be determined by a thorough review of the medial and other evidence.
Put simply, the Applicant’s case is that the delegate’s reconsideration decision was incorrect and that the medical and other evidence relied on by the delegate did not show that the injury had resolved and that the current condition suffered by the Applicant was not degenerative change but was the result of the 2002 workplace incident. The basis of the Applicant’s case is simple. Determination of that issue will obviously require detailed analysis and, inevitably, further evidence.
What is the appropriate test to apply to the merit of the substantive application? That test is not, as proffered by the Respondent, whether “the Applicant’s prospects of success in this matter are limited”. As the Respondent conceded (see [69] above), it is not the role of the Tribunal to undertake a substantive review of the merits of the application (Minister for Health and Aged Care v Pharmacia and Upjohn Pty Ltd[23]), but rather, it is to assess whether the applicant has an arguable case (Brown at [56]).
[23] [2001] FCA 75; (2001) 65 ALD 76.
As was noted by Member Burford in Johnson and Minister for Home Affairs[24] (Johnson) at [43]:
The Tribunal has previously declined to grant an extension of time to an Applicant in cases where it considers that the Applicant would have little prospect of success at a substantive hearing of the matter (see, for example, Rollins and Principal Member of the Veterans’ Review Board and Repatriation Commission [2011] AATA 113 and Hamilton and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 276).
[24] [2018] AATA 3469.
The test applied by the Court in Brown at [56], following the test applied by Von Doussa J in Windshuttle v Deputy Federal Commissioner of Taxation,[25] was whether the Applicant had an “arguable” case:
…For present purposes I am prepared to accept the view of von Doussa J in Windshuttle that an applicant should show that he or she has an arguable case. No doubt if the objection on the face of it is one which is frivolous or bound to fail as a matter of law it would be a futility to permit an extension of time to enable it to be considered. But this points to quite a low threshold. What is involved is whether the objection on its face discloses a case which is arguable, not whether having regard to other matters, including evidence which may not even be known to the taxpayer at the time of making the application, the case is one that the taxpayer will or will probably lose.
[25] (1993) 93 ATC 4992.
That test of “an arguable case” has been applied in subsequent cases, including Johnson at [58] and by Deputy President Forgie in DHDL and Executive Director, Social Security Appeals Tribunal[26] at [70]. In Somba and Minister for Home Affairs[27] this Tribunal canvassed a number of authorities in relation to the appropriate test to be applied to the merit of an application and summarised the tests at [87]-[89]. The particular application being considered in Somba was an application for reinstatement of a substantive application, however, cases that have dealt with applications for reinstatement have regularly equated the test in those cases with the test to be applied in considering the merit of an application for which an extension of time is sought (see John Oates and Secretary, Department of Social Security[28] per Deputy President Forgie at [9] and [10]).
[26] [2010] AATA 377.
[27] [2020] AATA 425.
[28] [1994] AATA 252;(1994) 37 ALD 241.
In the end the Tribunal considers that the appropriate test is that applied by the Court in Brown (see [75] above), namely, whether the Applicant has an arguable case. In the present case, given the nature of the matter in dispute and the “subjective”, technical nature of the decision that has to be made to resolve the issue in dispute, the Applicant has an arguable case. This weighs heavily in favour of an extension of time being granted.
Prejudice to the Respondent/general public interest
The Respondent refers to Hewson and Australia Postal Corporation[29] and to the statement therein to a respondent being “entitled to pursue its business on the assumption that claims are pursued within the time limits laid down…”. The Respondent also notes (citing Lucic v Nolan[30] that “…the mere absence of prejudice is not enough to justify the grant of an extension”.
[29] [1998] AATA 71.
[30] (1982) 45 ALR 411.
The Respondent also refers to the type of public interest prejudice to which this Tribunal referred in Mason and submits that it is in “the public interest, and in the interests of other applicants …who comply with the prescribed time limits, who would be unsettled if an extension of time is granted…”.
Dealing firstly with the submission that other applicants who had complied with the time requirements would be “unsettled” if an extension of time were to be granted, it is not clear to the Tribunal on what basis that claim is made. The claim appears to be more of a rhetorical statement or a statement of bare opinion than a sustainable legal submission. There is obviously no evidence before the Tribunal to support that claim and the Tribunal does not accept it to be the case. Other applicants’ rights are in no way affected by an extension of time being granted in a particular case and, in the Tribunal’s view, it would be a matter of indifference to other applicants whether an extension of time was granted in this case.
The Respondent does not seek to argue that it would suffer any prejudice in being able to defend the substantive application if an extension of time is granted. In any event, the Tribunal considers that that is not going to be the case given the close links, both in terms of issues and evidence, between the current proceedings before the AAT and the claim the subject of the substantive application.
The Tribunal does not accept that there would be any relevant prejudice, either to the Respondent or the public, if an extension of time is granted.
Conclusion
The Tribunal finds that;
(a) while the period between when the Applicant is deemed to have been served with the reconsideration decision and the lodging of the application is not insubstantial, there is a reasonable explanation for the delay for making the application;
(b) the Applicant has an arguable case in the substantive application; and
(c) there is no demonstrated prejudice to the Respondent or to the public in an extension of time being granted.
Accordingly, the Tribunal finds that it is reasonable in all the circumstances to extend the time for the making of the substantive application to 20 March 2020.
I certify that the preceding 84 (eighty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
..................................[SGD]...................................
Associate
Dated: 18 August 2020
Date(s) of hearing: 18 June 2020 Applicant: In person Counsel for the Respondent: Mr A Burgess Solicitors for the Respondent: Sparke Helmore Lawyers
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