Geary and Australian Postal Corporation
[2001] AATA 457
•28 May 2001
DECISION AND REASONS FOR DECISION [2001] AATA 457
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2000/467
GENERAL ADMINISTRATIVE DIVISION )
Re DANIELLE GEARY
Applicant
And AUSTRALIAN POSTAL CORPORATION
Respondent
INTERLOCUTORY DECISION
Tribunal Mr C P Webster (Senior Member)
Date28 May 2001
PlaceCanberra
Decision The application for an extension of time in which to lodge an application for review is refused.
[Sgd C P Webster]
Senior Member
CATCHWORDS
Practice and Procedure – application for extension of time in which to apply for review of decision – exercise of discretion – application refused.
Administrative Appeals Tribunal Act 1975 - s.29(7)
Hunter Valley Development v Cohen (1984) 3 FCR 344
Re El Salameh and Australian Postal Corporation (26 June 1991) AAT Decision No. 8523
REASONS FOR INTERLOCUTORY DECISION
28 May 2001 Mr C P Webster (Senior Member)
This is an application by Danielle Geary, made pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 ("the Act") for an extension of time in which to make an application for review of a decision made by a delegate of the respondent on 18 March 1998.
The decision made by the respondent was to cease liability in respect of the applicant's claim for "neuropraxia right arm".
The FactsThe applicant is a 33 year old woman (date of birth 2 April 1968), who suffered injury whilst working for Australia Post on 1 July 1998 when she fell from a motorised mail bike. She lodged a claim which identified the injury as "neuropraxia right arm".
She was paid incapacity payments and medical and rehabilitation expenses pursuant to the Safety, Rehabilitation and Compensation Act 1988.
On 31 January 1998, the applicant was advised by the respondent that liability to pay compensation had ceased from 31 January 1998.
The applicant requested a reconsideration of that decision and on 18 March 1998, the applicant was advised of the reconsideration of determination and of her rights of appeal to seek a review of that decision by the Administrative Appeals Tribunal.
Nothing further happened between the applicant and the respondent until 16 May 2000 when the applicant's lawyers advised of the possibility that "we will seek to reopen the liability issue in this matter … and lodge claims for permanent impairment and non-economic loss".
Nothing further occurred until an application for a review was lodged on 12 December 2000.
The applicant provided the following explanations for her failure to seek a timely review from the AAT, namely:
(a)In March 1998 to April 1998 she was prescribed Endep an anti-depressant which made her indifferent to life.
(b)She became pregnant and was unable to have an MRI scan until 1999 to obtain supporting medical evidence, and that she also suffered a back injury in the accident.
Consideration of Relevant Issues
The applicant seeks that the time in which she be allowed to seek a review of the decision of 18 March 1998 be extended until 12 December 2000 (a period of two years 9 months).
Section 29(7) of the Act states:-
"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 …".
The Act does not set out criteria for the exercise of the Tribunal's discretion. The discretion is unfettered, but must be exercised judicially having regard to the relevant facts (see Maric v Comcare (1993) 40 FCR 144). Special circumstances need not be established, however the Tribunal should not grant the application unless positively satisfied that it is proper to do so and that it is fair and equitable in the circumstances.
In Hunter Valley Development v Cohen (1984) 3 FCR 344, Wilcox J set out principles for guidance. Those principles are:-
(a)It is a pre-condition to the exercise of the discretion that the application for extension show "an acceptable explanation of the delay" and that it is "fair and equitable in the circumstance" to extend time.
(b)The actions of the applicant which alerts the decision-maker that the applicant has "rested on her rights" this may operate against the exercise of the discretion.
(c)Whether the applicant has suffered prejudice though the mere absence of prejudice is not enough to justify the grant of an extension.
(d)A delay which may result in the unsettling of other people or of established practices is likely to prove fatal to the application.
(e)The merits of the substantial application are properly to be taken into account.
(f)Consideration of fairness between the applicant and other persons in a like position are relevant.
Explanation of the Delay
In the present case the applicant was aware of her right to seek a review of the decision by the Administrative Appeals Tribunal.
The applicant initially did not seek a review as she was on medication, but that medication ceased in April 1998. Another explanation for delay is pregnancy which prevented an MRI scan until February 1999. No explanation at all was given to explain the further delay until 16 May 2000, and no explanation is given for the delay from 16 May 2000 to 12 December 2000. The delay does not on the face of the documentation with the AAT appear to have been the result of tardiness by Dr. Day. His report dated 16 October 2000 appears to have been written in response to a letter from the applicant's lawyer dated 22 September 2000.
These explanations for delay are not convincing. She knew of her review rights, but she chose to put the matter behind her.
Action TakenBetween 18 March 1998 and 16 May 2000, the applicant took no action whatsoever to notify the respondent of her dissatisfaction with the respondent's decision or that she intended to seek a review. She did not file an application for review until December 2000.
Prejudice to RespondentIf the applicant is successful in this application she would be entitled to a review of the respondent's decision of 18 March 1998 which was a decision to terminate compensation on the basis that the applicant was no longer suffering the effects of the injury suffered on 1 July 1998.
The respondent suffers a general prejudice as a result of the delay. In Re El Salameh and Australian Postal Corporation (26 June 1991) AAT Decision No. 8523, it was correctly stated that "the more time that elapses between the events to be examined and the date of the hearing, the more difficult it is to present meaningful evidence". The memories of lay witnesses who can give evidence as to the work capacity of the applicant from March 1998 to December 2000 are now diminished by effluxion of time.
In addition to general prejudice, the respondent has suffered specific prejudice in that the respondent has been deprived of the opportunity of rehabilitating the applicant back into the workplace and of minimising its ongoing liability to pay medical expenses and weekly benefits. The respondent who would have kept the applicant under ongoing medical review for the period March 1998 until December 2000 has been deprived of this opportunity.
It is now met with an applicant who claims incapacity for the past 2 years, 9 months without a satisfactory method of refuting that assertion.
MeritsThe requirement for the Tribunal to consider the prospects of success of the applicant does not require the Tribunal to embark on a full-scale examination of the merits of application (Repatriation Commission v Tuite (1992) 37 FCR 571 @ 577).
Dr. Gregory Day in his report of 16 October 2000 stated "I was not asked to examine Mrs. Geary's right shoulder and right knee and I will therefore confine my comments to her spine".
He then says that using the "Comcare Guide to the Assessment of the Degree of Permanent Impairment scale provided and using Table 9.6, I cannot find any equivalent symptoms or signs to compare with any of the lines on the table". Using the American Medical Association tables he considered that Mrs. Geary had a permanent impairment of 10% of the entire body.
He further states:"I have not assessed Mrs. Geary over the last 2 years and therefore feel that it would be unfair to both herself and to the Commonwealth to make any didactic statement regarding her ability to work as a result of her thoracic disc protrusion".
Although Dr. Day's evidence may go some way towards establishing a degree of impairment as a result of a back complaint. The decision which it is sought to review is not a decision concerning a back complaint. It is a decision that the applicant is no longer entitled to compensation as a result of a right arm problem.
The case presented by the applicant lacks merit. The Tribunal notes that there does not appear to be any bar upon the applicant claiming ongoing incapacity or a lump sum payment in respect of a back condition by making a new application.
FairnessThe Tribunal having considered all the relevant factors and balanced fairness on both sides must be satisfied that there is good reason to extend time. As a basic principle limitation periods are not to be ignored and proceedings commenced outside the period will generally not be entertained (Lucic v Nolan (1982) 45 ALR 411 @ 416).
In the present case the granting of an extension of time would be unfair to the respondent given the length of time that has elapsed, but would also be unfair to other employees who have exercised their rights within the time limits imposed by statute, or who have observed those limits and have refrained from seeking an extension of time.
DecisionThe application for an extension of time in which to lodge an application for review is refused.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr C P Webster (Senior Member)
Signed: .....................................................................................
Personal AssistantDate/s of Hearing 11 May 2001
Date of Decision 28 May 2001
Counsel for the Applicant Mr A Anforth
Solicitor for the Applicant Canberra Lawyers
Counsel for the Respondent Ms Leneen Forde
Solicitor for the Respondent Clarke & Kann
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