Hammond and Australian Postal Corporation

[2006] AATA 693

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 693

ADMINISTRATIVE APPEALS TRIBUNAL       )          No N2005/1482

GENERAL ADMINISTRATIVE DIVISION		)  )
Re		BRUCE HAMMOND

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Ms N. Isenberg, Member

Date10 August 2006

PlaceSydney

Decision The Tribunal decides not to exercise the discretion to grant an extension of time.

[SGD] Ms N. Isenberg
Member

  

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time – first application out of time by over two years – second and third application out of time by approximately 6 weeks – delay fault of solicitor and Applicant – no explanation given – delays in making application to Respondent for reconsideration – prejudice to the Respondent – merits of application – extension of time not granted

Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309

Comcare v A'Hearn (1993) 45 FCR 441

Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344

Secretary, Department of Social Security v Van Den Boogaart (1995) 37 ALD 619

Telstra Corporation Ltd v Razmovski (1994) 36 ALD 22

Re Petrou and Australian Postal Corporation (1992) 25 ALD 407

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451

Administrative Appeals Tribunal Act 1975 – section 29

Safety, Rehabilitation and Compensation Act 1988 – section 65

REASONS FOR DECISION

10 August 2006  Ms N. Isenberg, Member   

1.      Applications for review of reviewable decisions by this Tribunal under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) must be lodged within 60 days of receipt of the decision complained of (section 65(4) of the Act). Mr Hammond seeks, pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975, an extension of time for lodging his application for review in relation to reviewable decisions made by Australian Postal Corporation (“Australia Post”).

2.      Although there was some confusion at the outset of the hearing in relation to the decisions the subject of the applications, it is the reviewable decisions of 17 June 2003 and 2 decisions of 5 August 2005 (the ‘first’, ‘second’ and ‘third’ reviewable decisions, respectively), to which this application for extension of time relates.  Those reviewable decisions related to the determinations of 28 May 2003, 11 April 2003 and 10 November 2004, respectively.

BACKGROUND

3.      As a result of an accident in 1991 Mr Hammond sustained injuries, including to the left ankle, and was off work for approximately 12 months, during which time he received compensation, and, eventually, common law damages.

4.      Mr Hammond returned to work, but unfortunately, was involved in a second accident in 1996 when the brakes failed on his motorcycle, and he again injured his left ankle.  He was unable to return to his pre-injury duties and received compensation from Australia Post until 2002.  

5.      Mr Hammond received a large amount of correspondence from Australia Post including numerous determinations, and in relation to some of these, he sought reconsideration. 

6.      Applications for review of by this Tribunal are out of time, by over 2 years in respect of the first reviewable decision, and a few weeks in respect of the second and third reviewable decisions.

PRINCIPLES TO BE CONSIDERED IN EXTENSION OF TIME APPLICATIONS

7.      The principles to be considered in extension of time applications were set out in Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 at 348 to 349, and adopted in Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309. Each is considered below.

a) prima facie proceedings commenced outside the prescribed period will not be entertained, except if it is proper to do so

application out of time

8.      As at the date of filing of the application in the Tribunal in November 2005, Mr Hammond was two years and three months out of time for filing his application in relation to the first reviewable decision. 

9.      At the date of filing the application for review in relation to the 2^nd and 3^rd reviewable decisions in the Tribunal, those applications were also out of time, by about 6 weeks.

explanation for delay

10.     The Full Federal Court In Comcare v A'Hearn (1993) 45 FCR 441 stated (at 444) that although it is to be expected that an explanation for the delay will normally be given, there is no rule that such an explanation is an essential pre-condition to the granting of an extension of time.

11.     Nonetheless, in Secretary, Department of Social Security v Van Den Boogaart (1995) 37 ALD 619 the Federal Court regarded the lack of a satisfactory explanation for the delay as the matter which most strongly weighs against the grant of an extension of time.

12.     Mr Hammond sought legal advice in November 2003 and instructed his solicitors in December 2003 to make any application necessary for reconsideration or appeal as well as any extension of time application required to pursue his rights against Australia Post.

13.     Both counsel for Mr Hammond and his instructing solicitor were frank in admitting the delay from November/December 2003 was the fault of the solicitors, and not Mr Hammond (the progress of the matter while in the solicitor’s charge is discussed in detail at (B) below).

14.     However, by the time he had instructed his solicitors, Mr Hammond was already over 2 years out of time in respect of the first reviewable decision.  It was submitted that Mr Hammond was confused and not fully aware of the implication of not commencing proceedings in the Tribunal within the set time limit.  Mr Hammond, however, gave evidence that he had received the Australia Post pro forma advice in respect of time limits for applications for reconsideration and for appeals to this Tribunal.  He said he did not understand them, so took them to the solicitor.

15.     Mr Hammond, however, was not quite as naïve as his counsel would suggest.  An Australia Post letter dated 13 March 2004 was tendered which referred to Mr Hammond having (personally) sought, on 12 June 2003, reconsideration of a decision dated 28 May 2003.  Similarly, he had sought reconsideration of a decision dated 9 September 2003 on 19 October 2003.

16.     No explanation was provided by Mr Hammond’s solicitor in his affidavit, or in his evidence, as to why there had been delays in the filing of the applications for review for any of the reviewable decisions.

17.     It was submitted on Mr Hammond’s behalf that once he placed the matters in the hands of his solicitors he was entitled to think that all appropriate steps were being taken.  In Comcare v A’Hearn (1993) 45 FCR 441 the delay on the part of the solicitor was found to amount to an acceptable explanation for delay. In that matter there was evidence that Mr A’Hearn had made enquiries of his solicitors as to progress some 18 months after instructing them. In this matter though, there was no evidence in his affidavit as to what follow up action, if any, Mr Hammond had taken with the solicitors between January 2004 when there was a conference, and November 2005 when this application was filed.

18.     The submission that Mr Hammond relied on his solicitors would also, in my view, carry more weight had it not been for Mr Hammond’s own application for reconsideration in respect of the 2 earlier decisions referred to above.

19.     Furthermore, Mr Hammond’s application to this Tribunal in respect of all the reviewable decisions would have been out of time by the time he engaged the solicitors in any event.  His counsel conceded that Mr Hammond was responsible for the period before he engaged the solicitors.  No explanation for his delay was offered either.  In this regard I note that in Telstra Corporation Ltd v Razmovski (1994) 36 ALD 22, to which I was referred, that ‘blamelessness’ (or otherwise) was recognised, as perhaps being important, depending on the circumstances. I also note again Mr Hammond’s previous applications for reconsideration, undertaken without the assistance of a solicitor.

20.     As to the conduct (or rather, lack of conduct) of Mr Hammond’s matter on the part of his solicitor, I make no further comment other than to note that Mr Hammond may wish to have the level of service that was provided to him explored elsewhere.

(b) Did Mr Hammond rest on his rights or did he take action to make Australia Post aware that the decision was being contested

21.     I was referred to a summary of developments in the matter after the solicitors were engaged.  In November 2003 the solicitor informed Australia Post that he had some instructions to appeal against determinations and he asked for certain materials.  He followed that up with an FOI request and then, some months later, asked for a reconsideration of two determinations made on 28 May and 9 September 2003.  Australia Post responded to that and told him that those two determinations had already been reviewed, both of them at Mr Hammond's request.  Several months of 2004 passed and the solicitor sent Australia Post a medical report and declared that Mr Hammond was entitled to compensation because of his total incapacity for work.  By that time, almost a year had passed since Mr Hammond instructed the solicitor.

22.     The solicitor wrote to Australia Post in October 2004 requesting reconsideration of all determinations that it had made.  Australia Post responded that this was not a proper request for a reconsideration because no reasons had been set out in it.  More than five months later, on 22 March 2005, the solicitor wrote to Australia Post asking for an extension of time to review determinations, including those which are the subject of this application.

23.     After prompting by Australia Post, the solicitor provided, a couple of months later, reasons for seeking the extension of time.  Australia Post reminded him again that it needed reasons to support the request for reconsideration and these were provided in August 2005.  Australia Post, which had been responding promptly to correspondence from the solicitor, reconsidered the determinations of 11 April 2003 and 10 November 2004 on 5 August 2005.  The determination of 28 May 2003 was not reviewed, as it had already been reviewed on 17 June 2003.

24.     Then, for reasons which are not explained, it was not until 18 November 2005 that an application for review was filed in this Tribunal.

(c) is there any prejudice to Australia Post that would be caused by granting the extension of time?

25.     This is primarily a case about causation and whether an aggravation suffered by the Applicant in 1996 has ceased to be significant in incapacitating him.

26.     I was referred to Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 54. There, at 551, McHugh J stated:

“… The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.

…

... [P]eople should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period...

... The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.”

27.     I am conscious that the delay in this matter has not just been at the present stage.  Since Mr Hammond’s solicitors were engaged the matter proceeded far from expeditiously.

28.     I note that it was not until March 2005 that the solicitors requested an extension of time to make applications for reconsideration in respect of the subject determinations.  Those applications are significantly out of time.  Australia Post extended the time for reconsideration, hence Mr Hammond has already been given the benefit of Australia Post’s concessions.

29.     It was submitted that Australia Post had not adduced any evidence that it would be actually prejudiced in the event that Mr Hammond is granted an extension of time, and that Australia Post bears the onus of establishing an actual prejudice in that regard: Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451.

30.     This matter was said to be substantially different from Brisbane Regional Health Service (supra) in that the extension of time sought in that matter was some 15 years.

31.     The Applicant’s counsel contended that there is medical evidence available through the relevant period.  He pointed to Dr Cowdrey's report of 10 June 2002, several reports from Dr Gobbo (Mr Hammond’s GP), and reports from Dr Hopcroft dated 23 April and 23 June 2004.  All of these doctors have provided reports at the request of the Applicant.

32.     In September 2004, the solicitor submitted Dr Hopcroft’s medical report to Australia Post and stated that his client claimed compensation for total incapacity to work, that is, his client’s condition had worsened.  Australia Post, appropriately, promptly arranged a medical examination.  On the basis of Dr McGill's findings in his report of 7 October 2004 liability was ceased as from 17 November 2004.

33.     Counsel for the Applicant suggested that there are abundant medical reports during the relevant period but there seems to me to be substantial gaps during which it appears that an arthritic condition was developing in Mr Hammond’s ankle.  The medical examinations on behalf of the Respondent which might have investigated the development of that condition can no longer be done because the time for doing them has passed.  Only the current state of Mr Hammond's ankle can be assessed.

(d) any wider prejudice to the general public in terms of disruption to established practices is relevant

34.     In Re Petrou and Australian Postal Corporation (1992) 25 ALD 407, to which I was referred, the Tribunal stated at 411:

“As stated in Hunter Valley Developments case, it is not only prejudice between the parties which is relevant but the wider public interest. In Lucic's case [Lucic v Nolan (1982) 45 ALR 411] at 416 Fitzgerald J said: “Other matters of proper public concern… include the need for finality in disputes, the efficient use of public resources, the appropriate allocation and expenditure of public funds.”

… As Deputy President McMahon stated in El Salameh and Australian Postal Corporation (N91/209, 26 June 1991, unreported) at p 6: "Any delay, of course, is prejudicial. the more time that elapses between the events to be examined and the date of hearing, the more difficult it is to present meaningful evidence ... Even if this were not so, however, the mere absence of prejudice would not be enough to justify the grant of an extension"….

… Courts and tribunals ought as far as possible to assist litigants and the profession in the timely and efficient disposition of cases. At some point in time parties and their legal representatives ought to be able to consider that a case has been finalised. In circumstances where the respondent had had no communication from the applicant for over 2 years, the respondent ought to be entitled to consider that the matter closed, except in the most unusual circumstances…”

35.     While it may be said that Australia Post is extensively involved in the management of many compensation claims, this is a feature of being a major employer.  It is nonetheless entitled to be confident as to the finality in respect of claims in respect of any given employee (or former employee) within the set time limits, and not to have the expense of continuing to address further applications in respect of an employee, essentially at the employee’s will. 

(e) the merits of the substantial application are relevant

36.     The substantive issue is whether the incapacity which Mr Hammond suffers now and since November 2004 is the result of jarring his foot in 1996, which would be compensable, or whether his condition is the result of an arthritic process which arose in his left ankle because of his serious 1991 accident.  Ongoing difficulties which he has as a result of the 1991 accident no longer give rise to an entitlement to compensation.

37.     Dr McGill's report enunciates reasons why it might be said the claim is without merit.  It is not possible for me to go into this issue in great depth without full medical reports, cross-examination of doctors and an opportunity for full submissions, but Dr McGill's report is clear that the degenerative arthritis which has overtaken Mr Hammond and rendered him incapacitated is more likely to be the result of the very serious injuries he suffered in 1991, as compared to a soft tissue injury sustained in 1996.  Even Dr Hopcroft, the Applicant’s medico-legal orthopaedic surgeon, does not attribute Mr Hammond’s present condition to the 1996 accident, referring to his condition being ‘… as a result of his motor vehicle accidents…’ (my underlining).

(f) the fairness of granting the granting the extension of time as between the applicant and other persons in a like position is relevant

38.     The possible relevance of this criterion to this matter is whether, if the Applicant is given an extension of time then another person who would otherwise have got a particular hearing date without seeking an extension of time will be displaced.  Alternatively, if by granting an extension of time, is some precedent set which will disadvantage previous (unsuccessful) applicants for extension of time.

39.     In either case, such a consideration is of marginal relevance.

CONCLUSION

40.     A considerable period of time has passed from when the reviewable decisions were made, particularly the first reviewable decision, to the time of lodgement of Mr Hammond’s application with this Tribunal. Although the delays in lodgement were admitted to be the fault of the solicitor, Mr Hammond himself is not blameless. Further, no explanation for the delay by either Mr Hammond or the solicitor was offered. There were delays throughout the review process and the evidence now available is somewhat limited. There exists a need for finality in respect of such claims for compensation. Accordingly, after considering the merits of the substantial application and for the reasons given above, I am not satisfied that it is reasonable, in all of the circumstances of the case, to grant an extension of time to the Applicant to lodge an application for review of the reviewable decisions.

DECISION

41.     The Administrative Appeals Tribunal decides not to exercise the discretion to grant an extension of time to the Applicant for the lodgement of an application for review of the decision of Australia Post dated 17 June 2003 and the decisions dated 5 August 2005.

I certify that the preceding 41 paragraphs are a true copy of the decision and reasons for decision of Ms N. Isenberg, Member:

Signed:         A. Garcia
          ..................................................................................……………………………….

Associate

Dates of Hearing  2 May 2006 and 23 June 2006

Date of Decision  10 August 2006

Counsel for the Applicant  Mr A. Hourigan        

Counsel for the Respondent           Ms R. Henderson