Hasan and Inco Ships Pty Ltd (Compensation)

[2019] AATA 801

Hasan and Inco Ships Pty Ltd (Compensation) [2019] AATA 801 (7 May 2019)

Division:GENERAL DIVISION

File Number(s):      2017/4300

Re:Adeeb (Eddy) Hasan  

APPLICANT

Inco Ships Pty LtdAnd  

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:7 May 2019

Place:Sydney

The decision under review, being the decision of Inco Ships Pty Ltd dated 20 September 2016 to refuse Mr Hasan’s request for an extension of time in which to seek a reconsideration of the determination made on 12 December 2007, is affirmed.

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

Deputy President J W Constance

CATCHWORDS

PRACTICE AND PROCEDURE – application for review of decision to refuse extension of time in which to seek reconsideration of determination of liability – where delay in seeking reconsideration more than eight years after prescribed time in which to seek reconsideration expired – whether acceptable explanation of delay – whether prejudice to Respondent if extension granted – entirety of delay not satisfactorily explained – extension would unsettle established practices and generate uncertainty – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Seafarers Rehabilitation and Compensation Act 1992 (Cth)

CASES

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

REASONS FOR DECISION IN INTERLOCUTORY APPLICATION

Deputy President J W Constance

INTRODUCTION

1. Mr Hasan claims that he was injured in 2007 in the course of his employment by the Respondent. Later that year he made a claim for compensation in respect of the injury under the Seafarers Rehabilitation and Compensation Act 1992 (Cth). In December 2007, the Respondent made a determination rejecting the claim.

2. For reasons which I will set out later, Mr Hasan did not request the Respondent to reconsider its determination until April 2016. The Act requires that such a request be given to the employer within 30 days of the determination first coming to the notice of the claimant or within any such further period as the employer allows.

3. On 20 September 2016, the Respondent refused Mr Hasan’s request for additional time in which to seek a reconsideration of the determination. For the purposes of this application, this refusal is the reviewable decision. Mr Hasan has applied to the Tribunal for review of the reviewable decision.

4. For the reasons which follow, the reviewable decision will be affirmed. This means that the Tribunal does not have jurisdiction to review the determination denying liability to compensate Mr Hasan, in respect of the injury he claims to have suffered, as the Respondent has not conducted its own review of the determination.

   LEGISLATION

5. Subsection 88(1) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) provides that:

   Application may be made to the [Tribunal] by a claimant for review of a reviewable decision.

   Reviewable decision is defined in section 76 to mean a decision made under section 78. Relevantly, a decision to refuse an extension of time in which to request that an initial determination of a claim be reconsidered is a decision made under section 78, and thus a reviewable decision.[1]

   [1] See my decision in the previous interlocutory application in this matter: Hasan and Inco Ships Pty Ltd [2018] AATA 15.

6. Section 78(3) deals with the time in which an application for reconsideration of a determination is to be made. It reads as follows:

   (3) A request for reconsideration of a determination must:

   (a)set out the reasons for the request; and

   (b)be given to the employer within 30 days after the day on which the determination first came to the notice of the claimant, or within such further period (if any) as the employer, either before or after the end of that 30 day period, allows.

   BACKGROUND

   Mr Hasan’s claim and the Respondent’s response

7. Mr Hasan claims that he was injured in the employ of the Respondent on board a merchant ship as it was docking in the Port of Melbourne on 7 October 2007. He reported the incident to the First Mate a short time later.

8. On 18 October 2007, Mr Hasan lodged with the Respondent a claim for workers’ compensation in respect of the alleged injury.

9. On 12 December 2007, the Respondent made a determination denying liability in respect of the claim. A notice of determination, which included a statement of reasons, was sent to Mr Hasan by email, courier and express post on 14 December 2007. There is a dispute between the parties as to whether Mr Hasan received any of these communications. For reasons set out later, I am satisfied that Mr Hasan received at least one of them.[2]

   [2] Exhibit R1 at 6-7.

10. Mr Hasan acknowledges that he did receive a copy of the notice of determination in 2012, when it was given to him by the solicitor acting for him at the time. At various times since 2012, Mr Hasan has instructed a number of solicitors to act for him in respect of his compensation claim.

    Correspondence between the parties’ solicitors

11. On 6 April 2016, Mr Hasan’s solicitors wrote to the Respondent. This letter included the following paragraph:

    The purpose of this letter is to request that the time for reconsideration of the previous determination be extended for a further 30 days in order that we can obtain an up to date report of our client’s injury and for submissions to be made for reconsideration of your previous determination.[3]

    A medical report dated 18 November 2014 relating to Mr Hasan’s worsening medical condition, said to have arisen from the 2007 injury, was enclosed.[4]

    [3] Exhibit R1 at 93.

    [4] Exhibit R1 at 95.

12. On 17 May 2016, Mr Hasan’s solicitors wrote to the Respondent as follows:

    We act for Eddy Hasan.

    We refer to previous correspondence, a copy of which is enclosed should it had [sic] gone astray.

    We refer to our letter dated 6 April 2016 and we would be pleased to have a reply.[5] (Original emphasis.)

    [5] Exhibit R1 at 104.

13. On 14 September 2016, Mr Hasan’s solicitors wrote to the Respondent, in part, as follows:

    We refer to the telephone conversation between Cassandra and Mr Peter Ives of this office on 13 September 2016 and confirm that we act for the abovenamed employee.

    We note that we sent a letter to you on 6 April 2016 and a follow up letter of 16 May 2016 and we note your comment that these were not received and that the last letter you received from a solicitor acting for Mr Hasan was from his previous solicitors, Brydens.

    …

    The purpose of this letter is to request that the time for reconsideration of the previous determination be extended, in order that the present medical condition of Mr Hasan be considered and that the terms of the determination be favourable to Mr Hasan in order that weeklies be paid, medical expenses be paid and that he be entitled for lump sum assessment.[6]

    Additional medical reports relating to Mr Hasan’s condition were enclosed.

    [6] Exhibit R1 at 113.

14. The Respondent’s solicitors replied to the letter of 14 September 2016 by way of a letter dated 20 September 2016, which included the following:

    You state in your letter of 14 September 2016 that you request that the time for reconsideration of the previous determination by our client of your client’s claim for injuries be extended, in order that the present medical condition of Mr Hasan be considered.

    We note for your information that we have received correspondence from other lawyers acting for Mr Hasan in recent years concerning his claim and our client’s determination. Our client has been consistent in its replies to that correspondence.

    At the time of the alleged injury on 7 October 2007, which was the subject of the claim dated 18 October 2007, your client was not able to provide a consistent account of how an injury occurred or to demonstrate any symptoms aligned with any of the accounts he alleged.

    On that basis the determination was made on 12 December 2007 that he suffered no workplace injury.

    …

    Your client had his opportunity to challenge the determination at the time, almost 9 years ago, and did not. On that basis we confirm that our client has no obligation to reconsider the determination.[7]

    [7] Exhibit R1 at 127.

15. On 13 April 2017, Mr Hasan’s solicitors requested a copy of the letter of 20 September 2016 as the original had been misplaced.[8] This was provided on 18 April 2017.[9]

    [8] Exhibit R1 at 129

    [9] Exhibit R1 at 131.

16. On 19 May 2017, Mr Hasan’s solicitors wrote to the Respondent’s solicitors, in part, as follows:

    Further to your letter dated 20 September 2016 and the Determination of our client’s claim on 12 December 2007 pursuant to Section 78 of the Seafarers Act, we request a reconsideration of that decision.

    To the extent necessary, we also request time to be extended to make this application for reconsideration.

    The reasons for the reconsideration are as follows:

    1.    The original decision was in fact wrong.

    2.    The applicant’s medical condition has continued to deteriorate over the years and this deterioration is consistent with the original injury and our medical reports already served to date.

    3.    The applicant did not have legal advice at the time of the original decision.

    4.    The applicant’s condition has continued to deteriorate and he is now unable to work.

    5.    The applicant was poorly advised as to his legal entitlements and any lack of action on his part is attributable to his non-English background and culture.[10]

    [10] Exhibit R1 at 133.

17. By letter dated 13 June 2017, the Respondent’s solicitors responded to the letter of 19 May 2017 as follows:

    We refer to your above named client and note the previous correspondence exchanged between ourselves, the most recent of which being your letter dated 19 May 2017.

    By way of summary, by letter dated 14 September 2016 you requested that the time for consideration of the previous determination be extended. We responded to you by letter dated 20 September 2016 in which we confirmed that our client has no obligation to reconsider the determination made in December 2007.

    With respect to your numbered points in your letter of 19 May 2017 we respond as follows:

    1.    It is denied that the original decision made by our client in 2007 was wrong.

    2.    You state that your client’s medical condition has continued to “deteriorate” and that “deterioration is consistent with the original injury”.

    We and our client have reviewed the medical reports provided by Dr Peter Conrad provided by you on behalf of your client. With respect, Dr Conrad relies on the account currently promulgated by Mr Hasan regarding what occurred on 7 October 2007. Our client has been provided with different accounts by Mr Hasan of the events of that day. Its own inquiry and available medical evidence at the time confirmed that Mr Hasan suffered no work related impairment or injury capable of supporting a claim then or now.

    At the time of the alleged injury on 7 October 2007, which was the subject of the claim dated 18 October 2007, your client was not able to provide a consistent account of how an injury occurred or to demonstrate any symptoms that aligned with or supported any of the accounts he put forward in support of his claim.

    Accordingly any deterioration as claimed or at all is denied. Our client does not accept that there was any work related impairment or injury and consequently there cannot be any “deterioration” of such an injury.

    We are instructed that our client is not able to account for Mr Hasan’s life and possible incidents over the last decade and rejects his assertion that he suffered a workplace injury at the time alleged or at all while an employee of our client.

    3.    We note for your information that we have received correspondence from several lawyers acting for Mr Hasan in recent years concerning his alleged claim and our client’s determination.

    Your client’s choice, or ability, to take legal advice at the time of the alleged injury was a matter for him and is not relevant to our client’s obligation to consider the determination.

    Our client has given consideration to your client’s situation on several occasions and has continued to respond to the numerous approaches by lawyers acting for him, including correspondence from yourselves.

    4.    Our client denies that it is liable for your client’s alleged current condition or that his current condition is a deterioration of what he considers to be injuries suffered in 2007 whilst employed by our client. We confirm our instructions that your client’s assertion that he suffered from a work related injury is rejected in its entirety.

    5.    We note your assessment of your client’s situation. We cannot comment on your client’s personal circumstances nor on advice he may have received in 2007.

    We note that in your letter of 14 September 2016 you requested that the time for reconsideration of the previous determination be extended. We confirmed that your client had his opportunity to challenge the determination at the time, now almost 10 years ago, and did not. On that basis we confirmed that our client has no obligation to reconsider the determination.

    We are instructed that our client’s position remains the same. Any further correspondence will not be responded to by our client or by us on its behalf.[11]

    [11] Exhibit R1 at 136.

    Applications to the Tribunal

18. On 20 July 2017, Mr Hasan lodged two applications in the Tribunal:

    (1)  an Application for Review of Decision, in which the decision sought to be reviewed was specified as the Respondent’s decision of 13 June 2017; and

    (2)  an Application for Extension of Time for Making an Application for Review of Decision, in which the decision sought to be reviewed was specified as the decision of the Respondent made 13 [sic] December 2007.

    ISSUES FOR DETERMINATION

19. The following issues arise for determination:

    (1)  Did the letter dated 13 June 2017 from the Respondent’s solicitors notify Mr Hasan of a decision which is reviewable by the Tribunal?

    a.    If it did, it is not in dispute that the application for review of this decision was made within time and the matter can proceed to be determined by the Tribunal in the normal manner.

    (2)  If it did not, should the time in which Mr Hasan may request a reconsideration of the decision of 12 December 2007 be extended?

    CONSIDERATION

    Issue 1: Did the letter dated 13 June 2017 from the Respondent’s solicitors notify Mr Hasan of a decision which is reviewable by the Tribunal?

    Mr Hasan’s argument

20. It was argued on behalf of Mr Hasan that:

    ·his solicitors’ letter of 19 May 2017 was a request under subsection 78(2) of the Act for a reconsideration of the determination of 12 December 2007;

    ·this request set out the reasons for the request as required by subsection 78(3)(a);

    ·in responding to the reasons advanced, by their letter of 13 June 2017 the Respondent’s solicitors notified Mr Hasan of a decision, affirming the determination, made under subsection 78(6);[12]

    ·as the decision notified in the letter of 13 June 2017 was made under section 78, it is a reviewable decision as defined in subsection 76(1);

    ·an application may be made to this Tribunal for review of a reviewable decision under subsection 88(1) of the Act;

    ·the application for review was lodged in the Tribunal on 20 July 2017, within the time required by section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) as modified by subsection 89(3) the Seafarers Rehabilitation and Compensation Act.[13]

    [12] Pursuant to section 87of the Act.

    [13] The time in which the application to the Tribunal was to be made was within 60 days of Mr Hasan receiving notification of the reviewable decision.

    Discussion

21. In their letter of 20 September 2016 the Respondent’s solicitors stated clearly the Respondent’s position that it had no obligation to reconsider the 2007 determination made almost nine years prior. Notwithstanding this clear statement of the Respondent’s position, Mr Hasan’s solicitors repeated the request for reconsideration eight months later on 19 May 2017.

22. The Respondent’s solicitors’ reply of 13 June 2017 did respond to the reasons for reconsideration put forward on behalf of Mr Hasan. However, this response must be read in the context of the letter in its entirety. It is clear from the responses given that the Respondent’s solicitors remained steadfast in their view that the matter should proceed no further. Then, in the penultimate paragraph they repeated the statement that their client had no obligation to reconsider the determination.

23. The Respondent has consistently maintained the view that it is not obliged to reconsider its determination, and a fair reading of the letter of 13 June 2017 leads only to the conclusion that the Respondent had not changed its position and that it maintained its refusal to reconsider the determination.

24. The letter of 13 June 2017 was not a notification of a reviewable decision under the Act.

    Issue 2: Should the time in which Mr Hasan may request a reconsideration of the decision of 12 December 2007 be extended?

25. On the basis of a clinical note of Dr Cuffe, Mr Hasan’s general practitioner, of 23 January 2008,[14] I am satisfied that Mr Hasan was aware of the Respondent’s determination rejecting his claim by no later than that date. Dr Cuffe noted that Mr Hasan had received “a letter from Inco ships stating that they do not feel he suffered a work injury”.

    There is no evidence to suggest that prior to this date the Respondent wrote to Mr Hasan other than the letter giving him notice of the determination.

    [14] Exhibit A1, Annexure A.

26. I have also taken into account that from some time in 2007 Mr Hasan had the benefit of legal advice in relation to his claim.[15] Further, lawyers acting on behalf of Mr Hasan wrote to the Respondent on 30 March 2010 enclosing a copy of the notice of determination dated 12 December 2007.[16] I infer from the enclosure of the notice in this letter that it was received by the solicitors from Mr Hasan, not from the Respondent.

    [15] Exhibit A1 at [61]-[62].

    [16] Exhibit R1 at 80.

27. The Respondent forwarded copies of medical reports to Mr Hasan’s solicitors under cover of letter dated 1 July 2010. These copies were requested by the solicitors by letter of 25 June 2010.[17] The Respondent received no further communication from or on behalf of Mr Hassan until 17 July 2013 when it received a letter dated 15 July 2013 from another legal firm.[18]

    [17] Exhibit R1 at 84.

    [18] Exhibit R1 at 86.

28. It was not until 6 April 2016 that Mr Hasan requested an extension of time in which to seek a reconsideration of the determination of 12 December 2007.[19]

    [19] Exhibit R1 at 93.

29. Though enunciated in the context of the discretion to grant an extension of time for an appeal to the Federal Court, Wilcox J’s observations in Hunter Valley Developments Pty Ltd v Cohen[20] provide a guide to the exercise of discretion under subsection 78(3)(b) of the Act. Before the discretion can be exercised in his favour, Mr Hasan, as the applicant for an extension of time, has to rebut “the prima facie rule that proceedings commenced outside [the prescribed] period will not be entertained”. In doing so, he must provide “an ‘acceptable explanation of the delay’ and [show] that it would be ‘fair and equitable in the circumstances’ to extend time”.[21]

    [20] (1984) 3 FCR 344.

    [21] (1984) 3 FCR 344 at 348.

30. The first request for an extension of time to seek a reconsideration of the determination rejecting liability was made in April 2016, more than eight years after the prescribed time for making such a request expired. I am satisfied that the notice of determination, received by Mr Hasan sometime before 23 January 2008, informed him that the time in which a reconsideration should be made was 30 days from the time the notice came to his attention.[22]

    [22] Exhibit R1 at 67-68.

31. Although Mr Hasan gave evidence that at times the delay in seeking a reconsideration was a result of tardiness on the part of various solicitors, he did not account for the entirety of the delay. In particular, he did not satisfactorily explain why he did not request a reconsideration between January 2008 and “sometime in 2009” when he instructed solicitors in relation to his claim.[23] There was also no satisfactory explanation for the delay between his withdrawing instructions from one firm of solicitors “towards the end of 2010” and sometime in 2012 when Mr Hasan retained another firm to act on his behalf, nor for why it took until March 2014 for that firm to receive his file from his previous solicitors so that it could commence acting in relation to the claim.[24]

    [23] Exhibit A1 at [66].

    [24] Exhibit A1 at [72]-[73].

1. Having received no response from Mr Hasan’s solicitors for three years following 1 July 2010, the Respondent was entitled to conclude in that time at least, if not earlier, that Mr Hasan would not be proceeding with his claim.

2. It is in the interests of good public administration, as well as the particular employer involved, that such claims be dealt with promptly. Although Mr Hasan had several solicitors acting for him, it was not until July 2017 that Mr Hasan applied to the Tribunal to extend the time for requesting a reconsideration, despite the Respondent making it clear that it would not grant any extension.

3. In Hunter Valley Developments, Wilcox J said:

   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 …

   However, the mere absence of prejudice is not enough to justify the grant of an extension … In this context, public considerations often intrude … A delay which may result, if the application is successful, in the unsettling of other people … or of established practices … is likely to prove fatal to the application.[25]

   [25] (1984) 3 FCR 344 at 349.

4. In this case I am satisfied that, should this matter proceed to a hearing on the merits, the Respondent would be prejudiced by the delay in Mr Hasan seeking a reconsideration. Although the Respondent was advised promptly of the potential claim and investigated it in 2007, the passage of time would be likely to have caused the recollection of potential witnesses (both to the circumstances of the claimed injury and to Mr Hasan’s medical condition) to be significantly diminished.

5. Further, to grant such a lengthy extension in the circumstances of this matter would be likely to disturb current practices and generate uncertainty as to the time in which employers and their insurers would need to make allowances for potential claims.

   CONCLUSION

6. The reviewable decision, being the decision of Inco Ships Pty Ltd dated 20 September 2016 to refuse Mr Hasan’s request for an extension of time in which to seek a reconsideration of the determination made on 12 December 2007, will be affirmed.

I certify that the preceding 37 (thirty seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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Associate

Dated: 7 May 2019

Date(s) of hearing:	2 July 2018
Counsel for the Applicant:	Mr M Daley
Solicitors for the Applicant:	Maxwell Berghouse & Ives Solicitors
Solicitors for the Respondent:	Zeitz Workplace Lawyers