Grantham and Comcare - [2000] AATA 613

DECISION AND REASONS FOR DECISION [2000] AATA 613

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A99/334

GENERAL ADMINISTRATIVE DIVISION       )
           Re      DAVID GRANTHAM
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date27 July 2000
PlaceCanberra

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975,the Tribunal affirms the decision under review.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
COMPENSATION – Practice and procedure – extension of time to seek reconsideration – relevant factors considered including explanation for delay and prejudice
Safety Rehabilitation and Compensation Act 1988 s. 62
Re Killen and Defence Force Retirement and Death Benefits Authority [1999] AATA 517

REASONS FOR DECISION

27 July 2000 Senior Member J.A. Kiosoglous MBE

This is an application by Mr David Grantham (the applicant) for review of a decision of a delegate of the respondent dated 7 July 1999 (T33/54) to deny an extension of time to request a reconsideration of a decision of a delegate of the respondent dated 2 June 1991 (T22/40).
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T37), together with nine exhibits, five lodged by the applicant (Exhibits A1-A5) and four lodged by the respondent (Exhibits R1-R4). In addition, the Tribunal heard evidence from the applicant, Mr David Grantham. The applicant was represented by Mr B. Meagher and the respondent was represented by Mr S. Pilkington, both of counsel.
The issue before the Tribunal is whether an extension of time should be granted in which to seek reconsideration of the decision of a delegate of the respondent dated 2 June 1991 (T22).
The applicant commenced work for ACTION as a bus driver in September 1990. He allegedly suffered back pain on or about 14 February 1991 and sought medical attention on 17 February 1991. On medical advice, the applicant ceased work with ACTION on 18 February 1991 and was certified unfit for work up until 16 June 1991.
The applicant submitted a claim for compensation for "back strain and pain" on 28 March 1991 (T7). In a report dated 19 May 1991 (T19) Dr C. Clent, General Practitioner, stated (inter alia):
"… he has early lumbar degeneration which is aggravated by his obesity and occupation, …"
On 2 June 1991 a delegate of the respondent denied liability for the claim (T22), stating (inter alia):
"…
After looking at the facts of the case I was not satisfied that there was a material contribution by your employment to your current condition. The evidence indicates that you have a degenerative condition of the spine, probably as a result of your sporting activities. It also indicates that your build probably contributes to your condition by placing stress on your spine. The thorough investigation carried out by your employer eliminated the bus seat as a probable cause of your problem.
…"
On 26 November 1998 the applicant, through his solicitors, requested a reconsideration of the determination dated 2 June 1991 (T24). On 7 July 1999 a delegate of the respondent rejected the request for reconsideration on the basis that it had been made out of time, stating (inter alia) (T33/58):
"…
… my decision is to reject the application for reconsideration of this decision on the basis that the request for reconsideration has been made out of time, without acceptable explanation of the delay and with undue prejudice to the respondent.
…"

legislation

Sub-section 62(3) of the Safety Rehabilitation and Compensation Act 1988 (the Act) states:
(3) A request for reconsideration of a determination shall:
(a) set out the reasons for the request; and
(b) be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows."

applicant's evidence

The applicant told the Tribunal that at the time of the formal interview in respect of his claim he was depressed, frustrated, angry, on medication and had marital, family and financial problems which meant that he was confused and did not know what he said or signed. He further stated that the union representative told him to sign the copy of the minutes of the formal interview (T15/27). He does not recall ever reading this document. He told the Tribunal that his depression and psychological problems built up over time to the point where he has been hospitalised for such.
He stated that he did not see a solicitor at any stage regarding his back, and only became aware of his rights after a physiotherapist suggested he consult a solicitor in 1998 in respect of his neck problems arising from a motor vehicle accident.
The applicant stated that he did not have any back pain prior to 1991. In cross-examination, when taken through his medical history prior to 1991, he either could not recall the injuries sustained, or in respect of other times, suggested that the references were to rib or muscle pain, not back pain.
He told the Tribunal that he never played rugby and worked as a labourer, store manager and in computers prior to his job with ACTION. He stated that the pain in his back developed over the course of one week and by the end of the last shift he did before going on sick leave, the pain was so bad that he could not walk. He had to slide up and down the stairs of his home and had radiating leg pain.
He stated that he was driving one of the older buses, and that the fact that the records assign him to a particular bus, does not mean that he was actually driving that bus in that week. He told the Tribunal that he told his supervisor about the trouble he was having with the bus that week, but does not recall who the supervisor was. He stated that he would have told the doctor on 19 February 1991 about the bus problem, on 17 February 1991 about the severe pain, and on 11 April 1991 about the relationship of his back problems to work, but that he cannot control what doctors write down.
He stated that after receipt of the decision, he went to see a union delegate who told him that nothing further could be done. He told the Tribunal that in those days he did what the union told him to do. He stated that he did not know anything was written on the back of the letter containing the decision of the delegate (T22) until his solicitor pointed that out in 1998. He could not recall who the union delegate was, or the time or date of the meeting.
applicant's submissions
Mr Meagher submitted, on behalf of the applicant, that the respondent's failure to get a medical report contributed to the problems in this case. He submitted that an explanation for the delay was not essential, but that one had been proffered in this case in any event.
He submitted that the case was certainly arguable given the relevant standard of proof, and not without merit. He further submitted that the applicant had not rested on his rights, because he remained unaware of his rights, and that the respondent would not be prejudiced by the delay.
respondent's submissions
Mr Pilkington submitted, on behalf of the respondent, that the delay had been inadequately explained and that the applicant conceded receipt of the notice. He submitted that there was a reasonable expectation of finality and that the applicant had rested on his rights.
He further submitted that the respondent would be prejudiced as none of the then supervisors still worked for ACTION, and that medical evidence in respect of a 1991 aggravation would be impossible to obtain. He centered his argument on the applicant's credit, noting the failure to disclose a prior medical condition upon commencement of employment, making claims in respect of the February 1991 interview contrary to the other three people that were there, suggesting that more than one doctor must have written down the wrong thing, and making claims about union involvement without his being able to substantiate such an account.
discussion and findings
The Tribunal has only briefly set out the evidence, authorities and submissions put before it, but takes all into account in coming to its decision. It will refer to authorities as appropriate in the course of these reasons.
In ReKillen and Defence Force Retirement and Death Benefits Authority [1999] AATA 517 the Tribunal referred to the leading authorities on extension of time, noting at paragraphs 38-40:
38. Mr Hemsley on behalf of the applicant, referred the Tribunal to the factors set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315 at 320, where the Court stated (inter alia):
"… I venture to suggest that from them may be distilled the following principles to guide, not in any exhaustive manner, the exercise of the court's discretion:
(a)Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do . … It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time. …
(b)… A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not "rested on his rights": per Fisher J in Doyle v Chief of Staff (1982) 42 ACR 283 at 287 and a case where the decision-maker was allowed to believe that the matter was finally concluded. … The reasons for this distinction are not only the "need for finality in disputes" (see Lucic at 410) but also the "fading from memory" problem referred to in Wedesweiller v Cole (1983) 47 ALR 528.
(c) Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension. …
(d)However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas at 18: Lucic at 416; Hickey at 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550, Becerra at 12-13) or of established practices (Douglas at 19) is likely to prove fatal to the application.
(e)The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: (Lucic at 417; Chapman at 6).
(f)Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (Wedesweiller at 534-5).
In considering the authorities it is, I believe, important to bear in mind the point made by Sheppard J in Wedesweiller at 531, relating to the diversity of decisions of to which review may be sought under the Act:
'… there will be some cases which may be decided upon considerations which affect only the immediate parties. It will be appropriate to consider whether the delay which has taken place has been satisfactorily explained, the prejudice which may be caused to an applicant by the refusal of an application, the prejudice which may be suffered by the government or a particular department if the application is granted and, generally, what the justice of case requires. In other cases wider considerations will be involved.'
…"
39. Mr Hemsley further referred the Tribunal to the factors set out in Re Schmack and Defence Force Retirement and Death Benefits Authority (1981) 3 ALN N77 at N78 where the Tribunal is reported to have held (inter alia):
"(ii)      The factors which ought to be taken into account in deciding whether to exercise this discretion included:
(a)the reason for the failure to lodge the request for reconsideration within the 30 days allowed by Parliament for making that request as of right;
(b)       the length of the further time sought to be allowed;
(c)the diligence shown by the member in lodging his request for reconsideration after it came to his notice that there were circumstances justifying that request;
(d)the nature of the decision of which reconsideration was requested and the consequence of the decision upon the member's rights or obligations under the Act;
(e)the adequacy of the information conveyed to the member at the time when the Authority's decision was notified to him — both as to the basis of the decision and of his entitlement to request reconsideration;
(f)the extent of the applicant's knowledge of the relevant provisions of the Act and his awareness that the decision in question involved a discretionary element the exercise or non-exercise of which might affect the ultimate decision;
(g)the possible prejudice to the benefits scheme established by the Act if the time for reconsideration was extended as requested by the member; and
(h)the administrative difficulties in reconsidering the decision due to the absence or inadequacy of relevant evidentiary material after such a lapse of time."
40. Mr Dubé submitted that the Tribunal should follow the factors set out in Re Mulheron and Australian Telecommunications Corporation (1991-2) 14 AAR 42 where the Tribunal stated at page 48 (inter alia):
"The principles to be applied in considering an application for extension of time under s 29(7) were considered in Re Johnson and Comcare (unreported, AAT, Deputy President Todd, Decision No 5619, 5 January 1990). Briefly, these are:
(i)prima facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so;
(ii)it is relevant whether the applicant rested on his rights or took action to make the decision maker aware that the decision was being contested;
(iii)any prejudice to the respondent that would be caused by granting the extension of time is relevant;
(iv)any wider prejudice to the general public in terms of disruption to established practices is relevant;
(v)       the merits of the substantial application are relevant; and
(vi)fairness of granting the extension of time as between the applicant and other person in a like position is relevant.
The balancing of these factors will depend on the individual case. …"

The balance of the case law referred to the Tribunal in this case supports the above stated principles which are equally relevant to out of time reconsideration requests. Accordingly, the Tribunal turns to consider the evidence before it in light of such principles.
The applicant has offered an explanation for the delay, claiming that he did not read the back of the letter containing the decision (T22), and was told by a union delegate that there was "nothing more he could do", that he "can't do anything more" or words to that effect. The Tribunal has difficulty believing that a union delegate would have given such advice to the applicant. The applicant was unable to recall the circumstances or timing of any such meeting, or whether or not the notice would have been produced to the union delegate for his or her attention. The applicant told the Tribunal that he received the letter containing the decision (T22) and whilst the Tribunal is mindful of his evidence as to his medical condition at the time, that letter is clear and unambiguous (at least when compared to other such letters in this jurisdiction) in stating:
"…
Please read the back of this letter carefully.
For any enquiries please contact this Office …"
One would imagine that if the applicant were as angry and frustrated as he contends, upon receipt of such a letter, he would have caused enquires to be made. The applicant went to some lengths in his evidence to point out the factual errors in that decision (T22), and it would seem prudent of any person in receipt of a decision with significant ramifications, especially where they are in constant pain which they attribute to their work, to at least seek to clarify factual material before accepting a decision denying all liability. In such circumstances, it would be expected that one would carefully scrutinise the entirety of the letter conveying the decision. In this case, it would appear logical that of a six paragraph letter, it would be hard to overlook the final two paragraphs in such circumstances, or indeed, to fail to notice the large amount of writing on the back.
If indeed it is accepted that the applicant went to see the union delegate, he obviously understood the tenor of the letter (T22), and one would imagine that he would take the letter with him to any such meeting. It would reasonably be expected that such a delegate would want to see the letter containing the decision and discuss it with the applicant before offering any advice. The Tribunal is sceptical that any such meeting occurred.
The applicant was not an impressive witness. His recall of events appeared selective to say the least. He was able to clearly recall incidents in respect of the alleged injury, but unable to recall any details about the subsequent interview or meeting with the union delegate, both of which had such serious consequences. He recalled other events with clarity, but was unable to assist with a number of incidents and injuries in the 1980s, some of which appeared to the Tribunal to be quite serious events. Whilst the Tribunal is prepared to grant the applicant some leeway as a result of his traumatic experiences over the ensuing years and the large quantity of medication he has since taken, it does not consider that such intervening acts would create a memory quite as selective as that the applicant presented to the Tribunal. On this basis it does not accept that the explanation for the delay is credible.
As Mr Meagher asserted, lack of a reasonable explanation is not fatal to extension of time proceedings. In this case however, the applicant's lack of credit is It colours the Tribunal's assessment of the merits of the substantive matter. Whilst the Tribunal is mindful of the standard required of "aggravation" in respect of the Act, it does not consider that any subsequent Tribunal would find for the applicant if his evidence was of a similar vein to that presented to this Tribunal. There is serious doubt, in this Tribunal's opinion, that any work connection can be made out given the vagaries of the evidence.
The intervening years also make medical assessment much harder. It will be extremely difficult to prove or disprove a work connection in this case. The initial medical notes of 17 and 19 February 1991 make no mention of a work connection. On 17 February 1991 there is a note that he was a bus driver, and that "MVA 6 years ago Õ painful neck/back (or trunk (?)) on/off since" (Exhibit A5). The applicant gave the Tribunal a detailed account of the tumultuous time he has had over the years since his brief time at ACTION. Assuming for the moment that a work connection could be found, how on earth would a Tribunal reasonably be able to separate incapacity resulting from the applicant's work at ACTION and subsequent events? The respondent is certainly prejudiced in this regard, as it will be difficult to accurately assess the impact of any alleged work-related back injury.
It will also be difficult to prove or disprove the existence of prior back pain. The applicant offered a number of explanations as to why various medical entries would suggest prior back pain, but he was vague and unconvincing in his answers. There are only so many times that one can suggest that they cannot control what doctors write down. He alleges no prior back pain, however, this evidence is clearly at odds with the contemporaneous history (19 April 1991) taken by Ms S. Hanrahan, Physiotherapist, (T12) wherein she notes:
"…
He had one previous episode of back pain three or four years ago.
…"

It also appears at odds with Dr Clent's contemporaneous history having seen the applicant as his General Practitioner on five occasions in March 1991, and noting (inter alia) in his report dated 19 May 1991 (T19):
"I have been consulted by this fellow on 1.3.91, 7.3.91, 20.3.91, 28.3.91 & 29.3.91 for low back pain which he has had on and off for 6 years. …"
These discrepancies and the failure to provide adequate explanations for such, lead the Tribunal to conclude that whilst it cannot be said that there is no merit, there is a serious lack of merit to the applicant's case.
For the reasons stated, the Tribunal considers that the respondent would be prejudiced, not being able to prove or disprove factual events, or obtain satisfactory medical evidence. The effluxion of time has been substantial. Even if it is accepted that the applicant was unaware of his rights (of which the Tribunal remains sceptical) the respondent is still entitled to the expectation of finality where proper notification has been given and procedural fairness complied with. Whilst there may be some fault of fact in the respondent's decision, and it may have been prudent to get sound medical opinion prior to making the decision, such matters should have been agitated by the applicant at the time. The substance of the decision is less important in this regard than the procedure by which it came to the applicant's attention. That process was in accordance with procedural fairness, in that the applicant was properly notified of his rights.
When considering an extension of time in respect of a matter which has a delay of some seven years five months, to be reasonably satisfied as to the merit of granting an extension, there needs to be fairly compelling reasons as to why such extension should be granted. Otherwise, the delay is too long, resulting in prejudice and unfairness as regards other people within the Comcare system, including Comcare itself. There are occasions where the reasons in a particular case are so compelling, even when dealing with much longer delay (see Re Killen for example) but that is not so in the present application. The Tribunal is not satisfied that the explanation for the delay is reasonable, nor that there is merit to the substantive application. It considers there to be prejudice to the respondent and in the face of the considerable delay, finds that the discretion to grant an extension of time in which to seek reconsideration in this case is unwarranted.
decision
For the above reasons, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:         ........................(Signed)..............................................
  Personal Assistant
Date/s of Hearing  13 June 2000
Date of Decision  27 July 2000
Counsel for the Applicant        Mr B. Meagher
Solicitor for the Applicant         Howes Powie Row
Counsel for the Respondent    Mr S. Pilkington
Solicitor for the Respondent    Blake Dawson Waldron