Hillman v Australian Postal Corporation - [2017] AATA 1411

Hillman and Australian Postal Corporation (Compensation) [2017] AATA 1411 (5 September 2017)
Division:GENERAL DIVISION
File Number(s): 2016/5754
Re:Lynette Hillman
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:L M Gallagher, Member
Date:5 September 2017
Place:Perth

The decision under review is affirmed.
..............[sgd]..........................................................
L M Gallagher, Member
CATCHWORDS
Compensation – ruptured long head of bicep (left arm) - request for reconsideration out of time – extension of time to seek reconsideration refused - application for extension of time – guidelines to be considered – length of delay – no acceptable explanation for delay – prejudice to respondent - decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 14 – s 53(1)(a) – s 60(1) –
s 62 – s 62(3)(a) – s 62(3)(b)
CASES
Hazelwood and Telstra Corporation Limited [2012] AATA 901
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Re Hewson and Australian Postal Corporation (1998) 50 ALD 994
REASONS FOR DECISION
L M Gallagher, Member
5 September 2017
INTRODUCTION

Ms Hillman and the Australian Postal Corporation (‘Australia Post’), (together, ‘the parties’) have agreed that Ms Hillman’s present application is best decided on the papers. Accordingly, the Tribunal gives its reasons for decision as follows.
Ms Hillman has been employed as a Postal Delivery Officer with Australia Post since 2008.
Ms Hillman has a number of claims for which liability has been accepted by Australia Post under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’), including accepted claims for “right shoulder tendinosis” (T20) and “bilateral shoulder injury” (altered to “bilateral shoulder strains”) (T74), both sustained on 15 December 2011.
On 2 March 2016, Ms Hillman lodged a claim for compensation dated 23 February 2016 for “rupted [sic] long head of bicep (L arm)” sustained on 24 October 2015 (T137) (the ‘claimed condition’).
The claim form states that Ms Hillman first had medical treatment for the injury on 26 October 2015.
Ms Hillman first reported the injury to her supervisor on 8 February 2016 (T137 and note also the Health and Safety Incident Form dated 23 February 2016, lodged on 2 March 2016 (‘the incident form’) (T138)).
The incident form states that in the lead up to the incident that “right arm was injured delivering mail – car backed into me Dec 2011, Left arm has [sic] compensated for this injury & now have a ruptured long head of bicep” (T138).
A medical certificate issued by Dr Willie Smit (GP) dated 23 February 2016 and provided to Australia Post on 2 March 2016 (T139), certifies that Ms Hillman sustained an injury to her left shoulder on 24 October 2015.
On 11 March 2016, Australia Post issued a determination denying liability for the claimed condition (‘the determination’) (T142), for reasons including that Ms Hillman failed to report her injury immediately and also failed to lodge an incident report as soon as practicable, the latter being a…

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: [2017] AATA 1411
Decision Date: 5 September 2017

CaseChat Overview and Summary

This matter concerned an application by Ms Hillman for an extension of time to lodge a request for reconsideration of a determination made by Australia Post. Ms Hillman sought to have the determination, dated 11 March 2016, reconsidered, but her request was lodged approximately 179 days after she received the decision, significantly exceeding the 30-day timeframe prescribed by subsection 62(3)(b) of the Act. Australia Post had refused her request for an extension of time, leading to Ms Hillman's application for review of that refusal. The Tribunal was therefore required to determine whether to grant Ms Hillman an extension of time to seek reconsideration of the original determination.

The Tribunal considered the principles governing the exercise of its discretion to allow further time for a request for reconsideration. It noted that while this discretion is unfettered, it is informed by the statutory time limit and the need for finality in proceedings. Key factors to be considered include the length of the delay, the reasons provided for the delay, and any prejudice to the respondent. Ms Hillman's explanation for the delay included her inability to recall the exact date of receipt of the determination, feelings of exhaustion from previous claims, and difficulties in obtaining legal advice. The Tribunal also noted that Ms Hillman had been provided with information regarding the time limits for reconsideration.

The Tribunal found that Ms Hillman had not provided an acceptable explanation for the significant delay in lodging her request for reconsideration. While acknowledging her stated exhaustion and difficulties in obtaining legal advice, it found these reasons insufficient to justify the 149-day delay beyond the statutory period. The Tribunal also referred to the principle of finality, emphasizing that respondents are entitled to assume that claims not pursued within the prescribed time limits are finalised. Given the lack of a compelling reason for the delay and the principle of finality, the Tribunal affirmed the decision of Australia Post to refuse the extension of time.

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

The issue before the Tribunal is whether Ms Hillman should be granted an extension of time to lodge her request for reconsideration of the determination dated 11 March 2016 with Australia Post.EVIDENCE The following evidence is before the Tribunal:·T documents;·Applicant’s witness statement dated 31 March 2017 (‘A’s statement’)·Applicant’s undated Statement of Facts, Issues and Contentions lodged on 31 March 2017 (‘A’s SFICs’); and·R’s SFICs. Relevant aspects of the evidence before the Tribunal will be referred to below.CONSIDERATION Ms Hillman seeks an order which would have the effect of extending the time for lodging her request for reconsideration. Before considering each of the matters set out in paragraph 17 above, the Tribunal makes the following preliminary comments and findings:(a)The discretion to allow further time to request reconsideration is unfettered, the exercise of which is informed by the statutory time limit as well as the power granted by subsection 62(3)(b) of the Act to extend that time limit.(b)Ms Hillman has not put any argument forward to the effect that her request for reconsideration was actually lodged within time. Therefore, the Tribunal proceeds on the basis that the parties agree that Ms Hillman’s request was lodged out of time and hence the issue for review is as set out at paragraph 18 above.(c)Ms Hillman lodged her request for reconsideration of the determination dated 11 March 2016 on 6 September 2016, approximately 179 days after having received the decision and hence approximately 149 days after the 30 day timeframe prescribed by subsection 62(3)(b) of the Act.(d)Ms Hillman has not taken any issue with having received with the determination dated 11 March 2016 a copy of Australia Post’s ‘Employees’ Rights and Responsibilities’ as they appear at Annexure A of the R’s SFICs. As such, Ms Hillman is deemed to have had notice of the applicable 30 day timeframe for lodging her request for a reconsideration (as stated in subsection 62(3)(b) of the Act and set out in Australia Post’s ‘Employees’ Rights and Responsibilities’ document). The Tribunal considers from its review of the available material that the extent of Ms Hillman’s evidence is as follows:(a)Ms Hillman cannot recall exactly when she received the determination (A’s SFICS, paragraph 13; A’s statement, paragraph 14);(b)Ms Hillman did not feel that she would have the mental ability to challenge the determination, because she felt exhausted from the previous claim process and process of review relating to her bi-lateral shoulder strains. Ms Hillman was not confident that she would be able to successfully challenge the determination because it (the injury) happened on a Saturday. Ms Hillman phoned Slater & Gordon to obtain legal advice, but was told to contact her union (A’s SFICs, paragraph 14; A’s statement, paragraph 15);(c)Ms Hillman contacted her union who referred her to Tindall Gask Bentley (A’s SFICs, paragraph 15; A’s statement, paragraph 17); and(d)Ms Hillman consulted with Tindall Gask Bentley by telephone on or about 13 July 2016 however did not have all copies of the documents required by Tindall Gask Bentley. After providing the documents Ms Hillman engaged Tindall Gask Bentley to apply for an extension of time to request a reconsideration of the determination (A’s SFICs, paragraph 16; A’s statement, paragraph 17).Delay

Decision

Reasons for decision

On 9 September 2016, Australia Post issued a reviewable decision refusing Ms Hillman’s request for an extension of time to reconsider the determination, pursuant to subsection 61(3)(b) [sic][1] of the Act (‘the reviewable decision’) (T144). The reviewable decision states, in part:Your clients [sic] claim in 24 October 2015 was submitted on 23 February 2016 four months late. A primary determination was issued on 11 March 2016 together with a Notice of Rights detailing your client’s rights and obligations.Your client rested on those rights until September 2016 some six months later, whereby she now seeks an extension of time to request a reconsideration.She has provided no reasons as to the delay up to the time she instructed your firm and no fresh evidence to support her claim.[1] The reviewable decision 9 September 2016 erroneously refers to subsection 61(3)(b) of the Act, rather than subsection 62(3)(b) of the Act. The Tribunal considers the intent and basis of the reviewable decision is otherwise clear that the error is likely to have been typographical or otherwise inadvertent. On 27 October 2016, Ms Hillman’s solicitors lodged an application for review dated 26 October 2017, applying for review of the reviewable decision (T1). The application form states that the reviewable decision is wrong, because (relevantly) the respondent has suffered little prejudice and the time which has passed is relatively short.”RELEVANT LEGISLATION AND GENERAL PRINCIPLES Part VI of the Act provides for reconsideration and review of determinations. By subsection 60(1) of the Act:(a)A determination or decision made under section 14 of the Act is a determination for the purposes of Part VI of the Act;(b)a decision made under section 62 of the Act is a reviewable decision for the purposes of Part VI of the Act; and(c)a determining authority, in relation to a determination, means the person who made the determination. Relevantly, subsection 62(3) of the Act provides that a request for reconsideration of a determination shall:(a) set out the reasons for the request (subsection 62(3)(a)) of the Act; 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 (subsection 62(3)(b) of the Act).[emphasis added]. In Re Hewson and Australian Postal Corporation (1998) 50 ALD 994 (at 998), Senior Member Allen stressed the desirability of finality in these matters (at paragraph 23):In my opinion the major factor in this matter is that prima facie proceedings commenced outside the limitation period ought not to be entertained. The respondent is entitled to pursue its business on the assumption that claims not pursued within the time limits laid down in the legislation can be regarded as finalised. This principle must give way if an applicant is shown on the materials adduced by either party to have a good case of succeeding in the action and there is little prejudice to the respondent.

Ratio Decidendi

Legal Principle Established

On 29 August 2016, Ms Hillman’s solicitors requested a reconsideration of the determination dated 11 March 2016 (T143) (‘the request for reconsideration’). The request states, relevantly, and in part:We seek an extension of time within which to request the reconsideration, noting that Ms Hillman has only recently sought legal advice. On 9 September 2016, Australia Post issued a reviewable decision refusing Ms Hillman’s request for an extension of time to reconsider the determination, pursuant to subsection 61(3)(b) [sic][1] of the Act (‘the reviewable decision’) (T144). The reviewable decision states, in part:Your clients [sic] claim in 24 October 2015 was submitted on 23 February 2016 four months late. A primary determination was issued on 11 March 2016 together with a Notice of Rights detailing your client’s rights and obligations.Your client rested on those rights until September 2016 some six months later, whereby she now seeks an extension of time to request a reconsideration.She has provided no reasons as to the delay up to the time she instructed your firm and no fresh evidence to support her claim.[1] The reviewable decision 9 September 2016 erroneously refers to subsection 61(3)(b) of the Act, rather than subsection 62(3)(b) of the Act. The Tribunal considers the intent and basis of the reviewable decision is otherwise clear that the error is likely to have been typographical or otherwise inadvertent. On 27 October 2016, Ms Hillman’s solicitors lodged an application for review dated 26 October 2017, applying for review of the reviewable decision (T1). The application form states that the reviewable decision is wrong, because (relevantly) the respondent has suffered little prejudice and the time which has passed is relatively short.”RELEVANT LEGISLATION AND GENERAL PRINCIPLES Part VI of the Act provides for reconsideration and review of determinations. By subsection 60(1) of the Act:(a)A determination or decision made under section 14 of the Act is a determination for the purposes of Part VI of the Act;(b)a decision made under section 62 of the Act is a reviewable decision for the purposes of Part VI of the Act; and(c)a determining authority, in relation to a determination, means the person who made the determination. Relevantly, subsection 62(3) of the Act provides that a request for reconsideration of a determination shall:(a) set out the reasons for the request (subsection 62(3)(a)) of the Act; 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 (subsection 62(3)(b) of the Act).[emphasis added]. In Re Hewson and Australian Postal Corporation (1998) 50 ALD 994 (at 998), Senior Member Allen stressed the desirability of finality in these matters (at paragraph 23):In my opinion the major factor in this matter is that prima facie proceedings commenced outside the limitation period ought not to be entertained. The respondent is entitled to pursue its business on the assumption that claims not pursued within the time limits laid down in the legislation can be regarded as finalised. This principle must give way if an applicant is shown on the materials adduced by either party to have a good case of succeeding in the action and there is little prejudice to the respondent.