Helen Matthews and Commonwealth Securities Limited - [2013] AATA 726

[2013] AATA 726

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/0529

Re

Helen Matthews

APPLICANT

And

Commonwealth Securities Limited

RESPONDENT

DECISION

Tribunal
Mr R G Kenny, Senior Member

Date 9 October 2013

Place Brisbane
The Tribunal sets aside the decision under review and substitutes its decision that the time for the applicant to request review of the respondent’s determinations be extended to 13 December 2012.
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Mr R G Kenny, Senior Member
CATCHWORDS
COMPENSATION – Applicant claimed injured at work in 2011 – Claims rejected in determinations made by respondent in June 2011 and August 2011 – Request in December 2012 for respondent to allow extension of time for request to reconsider determinations – Request refused – Application to review refusal of request – Consideration of factors relevant to exercise of discretion to allow extension of time – Length of delay – Explanation of delay – Prospects of success of substantive claims – Prejudice to respondent – Decision set aside and extension of time allowed
LEGISLATION
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14, 16, 36, 62

CASES
Doyle v Chief of Staff (1982) 71 FLR 56

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jackamarra v Krakouer (1998) 195 CLR 516
Jess v Scott (1986) 12 FCR 187
Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942; [1985] 2 All ER 517
Re Bain v Military Rehabilitation and Compensation Commission [2008] AATA 730
Re Broadbent and Australian Telecommunications Corporation (AAT 7181, 25 July 1991)
Re Freeman and Australian Postal Corporation (AAT 8830, 9 July 1993)
Re Pulitano and Telstra Corporation Limited (AAT 8874, 7 July 1993)

R v Secretary for the Home Department; Ex parte Mehta [1975] 1 WLR 1087
REASONS FOR DECISION
Mr R G Kenny, Senior Member
9 October 2013

The following factual material in this matter is not in dispute.
From 2002, Helen Matthews (“the applicant”) was employed by the Commonwealth Bank of Australia (“the respondent”) as a merchant sales associate. On 29 March 2011, she lodged a compensation claim for work-related conditions she described as “acute left elbow/shoulder/cervical parathesis, tear in elbow and shoulder – RSI”.[1]
[1] Exhibit 1, T-Document 3, p. 19.
On 21 June 2011, the respondent, in its first of three relevant determinations, wrote to the applicant advising that, in accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”), the respondent accepted liability for “(L) lateral epicondylitis” but that it had rejected the claims for “cervical condition” and “(L) rotator cuff tendinosis”.[2] On 23 June 2011, in its second determination, the respondent advised the applicant that, in accordance with s 16 of the Act, she was entitled to weekly compensation benefits for the period from 22 February 2011 until 1 April 2011 in the gross amount of $6,560.58 and that, thereafter, there was no present liability in respect of her (L) lateral epicondylitis.[3] A claim by the applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] AATA 726
Decision Date

CaseChat Overview and Summary

Helen Matthews sought a review of decisions made by Commonwealth Securities Limited under the Australian Securities and Investments Commission Act 2001. The Federal Court was tasked with determining whether an extension of the statutory time limit for seeking review should be granted to Matthews. The primary legal issue before the court was whether Matthews had provided a sufficient explanation for the delay in seeking review and whether granting an extension would prejudice Commonwealth Securities Limited.

The court examined the principles established in Hunter Valley Developments Pty Ltd v Cohen, which outlined the criteria for granting extensions of time. These criteria included the need for an acceptable explanation for the delay, the lack of prejudice to the respondent, and the merits of the case. The court found that Matthews had consistently communicated her intent to pursue the matter, thereby fulfilling the requirement for an acceptable explanation. Furthermore, the court was satisfied that Commonwealth Securities Limited would not be prejudiced by the extension, as they had been made aware of the ongoing proceedings. The merits of the case also supported a successful outcome for Matthews. Based on these findings, the court granted an extension of time for Matthews to request review of the decisions.

The court ordered that the time for Matthews to request review of the respondent's determinations be extended to 13 December 2012, thereby allowing her to pursue the review proceedings. The court emphasised that while time limits are important, they should not be applied rigidly if the circumstances justify an extension.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

While it is important to recognise that time-frames such as that in s 62(3) of the Act should usually be complied with, I am satisfied, for the reasons outlined, that an extension of time should be granted in this matter. I am satisfied that the applicant has provided an acceptable explanation for the delay in seeking review of the respondent’s determinations; that there are prospects for her claims to be successful; and that the respondent will not be prejudiced by the granting of an extension of time. In so deciding, I note that the respondent was made aware of the applicant’s desire to continue the proceedings against the respondent[53] in July 2011 when Mr Giurissevich requested an extension of time (to which the respondent acceded); in June 2012 when the applicant advised the respondent that she had authorised Carroll/O’Dea to deal with her claims; and in October 2012 when Carroll/O’Dea requested an extension of time to provide an explanation for the delay (to which the respondent acceded). In all the circumstances, I am satisfied that the time for the applicant to request review of the respondent’s determinations be extended to 13 December 2012. [53] See factor 2 (Para 24 above) as identified in Hunter Valley Developments v Cohen (1984) 3 FCR 344.DECISION The Tribunal sets aside the decision under review and substitutes its decision that the time for the applicant to request review of the respondent’s determinations be extended to 13 December 2012.

Ratio Decidendi

Legal Principle Established

The Act provides no guidance on the principles to be applied in determining whether an extension of the time referred to in that provision should be granted. The issue for the Tribunal is whether an extension of time should be granted in the applicant’s case. CONSIDERATION The applications for extension of time by Carroll/O’Dea were made on 13 December 2010 which was more than 17 months after the first and second determinations and more than 15 months after the third determination. In Hunter Valley Developments Pty Ltd v Cohen,[19] Wilcox J was concerned with an application to extend time for review of a decision under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). His Honour identified decisions made in relation to that provision and, from them, “distilled the following principles to guide, not in any exhaustive manner, the exercise of …. discretion”:[20] 1. 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. The "prescribed period" of twenty-eight days is not to be ignored (Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission (1982) 43 ALR 535 at 550) Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416) 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 (Duff at 485; Chapman v Reilly unreported (Federal Court of Australia, Neaves J., 9 December 1983) at 7).2. Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. 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 ALR 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v Allen (1984) 1 FCR. 287 with Lucic at 414-415 and Hickey v Australian Telecommunications Commission (1983) 48 ALR 517 at 519. 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. 3. 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: see Doyle at 287, Duff at 484-485, Hickey at 525-527 and Wedesweiller at 533-534. 4. However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas, 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) is likely to prove fatal to the application. 5. 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. 6. 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 534-535.[19] (1984) 3 FCR 344.[20] Ibid at 348-349.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/0529
Re	Helen Matthews
APPLICANT
And	Commonwealth Securities Limited
RESPONDENT

Tribunal	Mr R G Kenny, Senior Member
Date	9 October 2013
Place	Brisbane