Holliday and Australian Postal Corporation
[2008] AATA 1028
•17 November 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1028
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5332
GENERAL ADMINISTRATIVE DIVISION ) Re SHERYL YVONNE HOLLIDAY Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member L Hastwell Date17 November 2008
PlaceAdelaide
Decision The Tribunal grants the extension of time until 2 November 2007.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
PRACTICE AND PROCEDURE – application for extension of time in which to apply to the AAT to review reconsideration by respondent – reasons for delay in making application considered – prejudice to Australia Post considered – prospects of success – fairness and equity considered – credibility issues significant and to be tested by reference to all available evidence at hearing – lack of enquiry as to substance of the claim by Australia Post once claim made – medical evidence available from shortly after alleged incident – extension of time granted
Administrative Appeals Tribunal Act 1975 s 29
Safety, Rehabilitation and Compensation Act 1988
Hunter Valley Developments Pty Ltd & Others v Cohen (1984) 3 FCR 344
Re Callis and Australian Postal Corporation [2008] AATA 556
Commissioner of Taxation v Brown [1999] FCA 1198
Chalk v Commissioner of Superannuation (1994) 33 ALD 420
Windshuttle v Deputy Commissioner of Taxation (1993) 46 FCR 235REASONS FOR DECISION
17 November 2008 Senior Member L Hastwell 1. Ms Holliday is a long-term employee of the Australian Postal Corporation. She asserts that on 29 June 2006 she injured her back in the course of her employment.
2. She completed an incident report in regard to her back injury and lodged her claim for compensation on 15 March 2007.
3. On 26 March 2007, the respondent (Australia Post) rejected her claim. She sought reconsideration and, on 5 July 2007, the decision rejecting her claim was affirmed. It appears probable that the notification of the reconsideration reached her in the ordinary course of post around 9 July 2007.
4. Ms Holliday lodged an application for a review of this decision with this Tribunal on 2 November 2007. Under the Safety, Rehabilitation and Compensation Act 1988 she had 60 days from the date that she received notification of the reconsideration within which to lodge an application for review. She seeks an extension of time in which to file her application for review with this Tribunal.
5. Australia Post opposes the extension of time.
6. The sole issue for determination at the preliminary hearing was whether the Tribunal should extend the time within which Ms Holliday can lodge an application for review of the respondent’s decision of 5 July 2007 to this Tribunal.
relevant legislative provision
7. Under s 29 of the Administrative Appeals Tribunal Act 1975, the Tribunal has the power to extend the time within which a person can make application for review to this Tribunal.
8. The relevant provision provides as follows:
“29 Manner of applying for review
…
Tribunal may extend time for making application
(7)The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
…”
discussion of the principles to apply
9. The relevant section gives no guidance with respect to the meaning of the words “that it is reasonable in all the circumstances to do so”, ie to extend time.
10. The principles to consider on an extension of time application have been enunciated in a number of cases and are well established.
11. The leading authority is considered to be the judgment of Wilcox J in the case of Hunter Valley Developments Pty Ltd & Others v Cohen (1984) 3 FCR 344. In the recent case of Re Callis and Australian Postal Corporation [2008] AATA 556 in this Tribunal, I summarised the principles enunciated by Justice Wilcox in the following terms:
“…
·Proceedings commenced outside the prescribed period will not be entertained. However, an extension of time will be granted if it is proper to do so.
·It is not incumbent upon an applicant for an extension of time to give an explanation for the delay, but normally it is to be expected that such an explanation will be given (Comcare v A’Hearn [1993] FCA 498).
·There is no onus of proof on the applicant in this Tribunal. Nevertheless, the applicant for an extension of time must place material before the Tribunal to justify the exercise of the discretion in his or her favour.
·The Tribunal must consider whether the applicant took any action to make the decision-maker aware that the decision was being contested.
·Is there prejudice to the respondent if the extension of time is granted?
·Is there going to be any wider prejudice to the general public?
·What are the potential merits of the substantial application?
·What is the fairness of granting an extension of time as between the applicant and other persons in a like position?
…”
12. It has been stated in many cases since that the guidelines are not exhaustive, but they provide a useful framework to guide the decision-maker in extension of time cases. For example, the Federal Court has consistently stated that it is not a precondition for there to be an acceptable explanation for the delay, but it is helpful if there is such an explanation available.
the relevant evidence
13. Ms Holliday gave evidence to the Tribunal. Three volumes of documents were received as exhibits and these included statements of two of her work colleagues. A number of other exhibits were received into evidence which will be referred to where relevant.
14. The following relevant matters emerged from the evidence.
15. Ms Holliday commenced work with Australia Post in 1988 and has been working at the Mount Gambier delivery centre throughout. At the time of the alleged incident, she was employed as a Postal Delivery Officer (Indoor Duties).
16. She says that she sustained an injury to her back in the course of her employment on 29 June 2006.
17. Her evidence as to the incident was that she was bending and pulling up the gate of a unit loading device when she felt a stabbing pain in her back and buttocks that radiated down her leg. On the following day, she could not move her leg and did not go to work. She hoped that the injury would resolve itself on the weekend with rest. She realised she had done something to her back the day before.
18. She claims to have informally advised her shift supervisor, Mr Rodney Summers, on Monday 3 July 2006 that she had “done her back in”.
19. In the course of her evidence to the Tribunal, she also commented that her work at Australia Post over many years had involved lifting bags and often pushing very heavy trolleys and she was convinced that her work had “caused if not contributed to” her back problem.
20. Mr Summers did not give evidence to the Tribunal, but in a signed statement he says that he does not recall that conversation and that if he had had such a conversation with her he would have asked her to fill in an incident report (Exhibit A3/4-6). Mr Summers said that he thinks that he first became aware that Ms Holliday had a back condition in late July or early August 2006.
21. She did not immediately take any time off work. She says in her statement (Exhibit A2/69-73) that she did not want to cause problems by putting a claim in and that she also did not get on overly well with her immediate supervisor, Mr Stephen McLeod. She had already been spoken to by Mr McLeod in late 2005 or early 2006 about taking excessive sick leave and she thought that he could make her working life difficult if she told him that the back incident was possibly work related.
22. Her leave history (Exhibit A1/54-60) confirmed that she had taken quite a lot of sick leave throughout 2005 and in the first half of 2006.
23. In her oral evidence to the Tribunal, she reiterated that she did not make any incident report to Mr McLeod as she found him to be a bully and she feared that she may lose her job or that he may give her a “bad shift” if she made a claim at the time. Mr McLeod was responsible for rostering at that time.
24. Ms Holliday is the mother of two young children with a partner who works 6 days a week, starting at 4am. It was important that she have a day time shift because of her family responsibilities.
25. Mr McLeod, in his written statement (Exhibit A3/9-12), stated that he had no knowledge that she claimed that her back injury was work related until it was raised with him by Ms Holliday in a telephone conversation in January 2007 when she was negotiating a return to work. He said that he first became aware that Ms Holliday had a “back problem” in late July 2006. He stated that he treated his employees “fairly and reasonably” at all times and that he had never treated an employee differently because they had lodged an incident report.
26. Ms Holliday told the Tribunal that she continued to work “in pain” after the initial incident until she sought chiropractic treatment for her back problems on 11 and 13 July 2006 from Karl Wederman at the Lianas Chiropractic Centre in Mount Gambier. On 17 July 2006 she saw Dr Viki, who arranged for a back x-ray to be carried out.
27. A radiological report of 18 July 2006 (Exhibit A1/36) concluded that she had:
“Mild L4-5 degenerative disc disease with prominent sclerosis adjacent vertebra as a reactive phenomenon. The clinical setting will determine the need for CT scanning which could also detect a focal nerve root impingement as a cause for the sciatica.”
28. Ms Holliday took some time off work over the next month and produced medical certificates which are contained at Exhibit A1/10-11. None of these certificates link her condition with work. Her leave records confirm that the reason given for her sick leave in July 2006 was “sore back”.
29. A CT lumbar spine report dated 18 August 2006 (Exhibit A2/24) stated:
“The lower two lumbar discs are degenerate and there are left paracentral disc protrusions at both levels, potentially irritating the proximal left L5 and proximal left S1 nerve roots respectively”.
30. Ms Holliday admits that she did not mention to her medical practitioner at the time that the incident was possibly work related.
31. Her medical notes were not available to the Tribunal at this preliminary hearing.
32. Ms Holliday took continuous sick leave from the end of August 2006. Sick certificates were provided (Exhibit A1/12-16). None of these certificates refer to the condition as being work related. The accompanying leave applications referred to the condition as being “sore back” or “back complaint” (Exhibit A2/9-14).
33. In the latter half of 2006, Ms Holliday was referred to a neurosurgeon, Mr McDonald, who gave her an epidural for pain relief and she also sought physiotherapy and chiropractic treatment to see if she could get some relief from pain. She swam, walked and did back strengthening exercises.
34. Her sick leave entitlements were due to run out at the end of January 2007 and she planned to return to work in early February. She obtained a medical certificate from her GP on 16 January 2007 which certified her fit to return to light duties as of 1 February 2007 with the limitation that she could not lift more than 10 kilograms (Exhibit A2/21).
35. On 25 January 2007, Ms Holliday telephoned Mr McLeod about returning to work.
36. Mr McLeod’s account of that conversation in his statement is that she phoned him and told him that she needed to return to work on 5 February 2007. He explained to her that as she had been off work on sick leave for a considerable period of time, she needed to provide a medical clearance from her doctor before returning to work. He states that he also told her in the course of that discussion that because her injury was not work related, then if she returned to work she would be expected to return to her pre-injury duties.
37. He also states that in the course of that conversation, and when told that she needed a medical clearance, Ms Holliday made comment to the effect that she would be claiming half her sick leave back as the back condition was work related (Exhibit A3/10).
38. Ms Holliday does not dispute making that statement. This was the first time that there had been any suggestion that the back incident was work related.
39. On 29 January 2007, Ms Holliday was advised in writing (Exhibit A2/25-26) that she would need to provide medical evidence covering the nature of her condition, medical restrictions, etc before she could be considered for returning to work.
40. On 2 February 2007, she provided an Australia Post Restricted Duties Medical Certificate Proforma, prepared by a Dr Ignat, which set out the limitations on her duties. It indicated that some of the restrictions were long-term (greater than 3 months). In regard to sitting, standing and break tolerance, there was a suggestion that she be referred to an occupational physician for assessment (Exhibit A2/34).
41. On 7 February 2007, there was a meeting at which Mr McLeod was present and a decision was made that there were no duties that she was able to do because of the restrictions imposed on her duties by her treating GP.
42. Ms Holliday was sent a letter on 13 February 2007 (Exhibit A2/38) in which she was directed on sick leave from 19 February 2007 in accordance with Australia Post’s Non-Work Related (Non-Statutory) Medical Restrictions Policy. As she no longer had any sick leave entitlements, she was not paid for that leave.
43. On 23 February 2007, Ms Holliday wrote a letter to Dr Ignat (Exhibit R6) to provide further information as to how the injury occurred and for the first time disclosing to her the alleged incident of 29 June 2006 and explaining why she did not report it as a workplace injury. She gave the following three reasons for not reporting the incident:
“I didn’t think it was that serious.
I thought it would get better in a short amount of time.
I was too afraid to.”
44. On 19 February 2007, in a telephone discussion with someone at Australia Post (that was recorded in an internal file memo) (Exhibit A2/39)), she advised that she intended to make a claim for compensation as her back injury was work related.
45. She was questioned at length about her failure to report the back problem as being work related to her doctor. She said that it is very difficult to obtain appointments with a GP in Mount Gambier, that very little time is allocated to see the doctor and so the appointments tended to be rushed.
46. Her claim was received by Australia Post on 15 March 2007.
47. On 16 March 2007, she was asked to sign an authority to enable Australia Post to obtain medical information about her condition which she did (Exhibit A1/20).
48. Her application for compensation was rejected in a determination on 26 March 2007 (Exhibit A1/29-32). She sought reconsideration of that determination.
49. Her claim was rejected upon reconsideration. Australia Post did not arrange any further medical examination of Ms Holliday and the reconsideration decision was received by Ms Holliday around 9 July 2007 (Exhibit A1/47-49). That decision focused on issues of her credit, based on her failure to report the injury as being work related until approximately 7 months after the event and upon the prejudice thereby caused to Australia Post.
50. She confirmed in her oral evidence that she also received a notice (Exhibit R3) which advised her of her right to appeal to this Tribunal within 60 days from the date that she received the reconsideration.
51. Ms Holliday claims that she then rang the review officer, Mr Peter Bodnarcuk, and told him that she was going to dispute the decision and take legal advice. She felt she was being unfairly treated.
52. Mr Bodnarcuk in a statement (Exhibit A3/7-8) does not recall having such a discussion with Ms Holliday and says that he would normally make a file note of any such discussion. He has checked his file and there is no such record.
53. Initially in her evidence, Ms Holliday said that she did not think she received the notice with the decision which sets out her rights and responsibilities, but it was subsequently confirmed in her evidence that she did receive that notice.
54. She did not immediately seek legal advice. In the months following July 2007, she worked hard at regaining fitness and strengthening her back. She went to a gym, swam regularly, walked and did all that she could to build up her muscle strength. She consulted with a chiropractor every month from July 2007 and remained under the direction of Anton Harms, a musculoskeletal physiotherapist.
55. She was once more certified fit to return to work in a certificate issued by Dr Viki dated 28 September 2007, which put limitations on lifting to a maximum of 20 kg for both repetitive and occasional lifts. This exceeded what was required for full duties. This was sent to Australia Post with a letter from Ms Holliday dated 8 October 2007 in which she said that she would be returning to work and resuming her normal shifts on Tuesday 23 October 2007. Australia Post declined to allow her to return to work and at that point sought an opinion from an occupational physician, Dr Graham, as to whether she was fit to return to her full normal duties.
56. In a report dated 18 October 2007 (Exhibit A2/62-63) Dr Graham responded that he considered that she was not fit to resume the full normal duties of a Postal Delivery Officer and that, given the degenerative nature of her condition, it was unlikely that she would become sufficiently fit to resume her full duties in the future. As a result, Ms Holliday was advised on 19 October 2007 to remain on sick leave.
57. Ms Holliday then arranged to seek legal advice, as a result of which the application to extend the time for review was lodged with this Tribunal, along with the application to review the reconsideration of 5 July 2007.
58. Additional relevant evidence given by Ms Holliday as to her delay in obtaining legal advice and seeking a review of the decision was that it was only when she was not allowed to return to work in October that she felt that she needed help. She said that the letter advising her of Dr Graham’s opinion would have reached her on 20 or 21 October 2007. She already had a business card for a solicitor that Dr Bastian, had recommended earlier that year. She had not previously seen a solicitor because of concern about the cost of doing so. She also lives in a country community some distance from Adelaide. A member of her family agreed to assist her financially with legal fees involved.
59. After being told she could not return to work, she then made an appointment to see the nominated solicitor, Mr Tim White of Tindall Gask Bentley. When questioned about why she did not see a local lawyer in Mount Gambier, her response was that she had been specifically referred to Mr White as being an expert in his field and she wanted to see him. She also understood that the first consultation was free. Mr White was based in Adelaide.
60. When asked about why she did not notice the 60 day time limit in July, she said that she probably had other things on her mind, she did not understand how the AAT works, who pays and how you go about it. She was also concerned that the notice said that she may have to pay legal costs if unsuccessful and she saw herself as a little person and Australia Post as a huge corporation. She did not think that she could produce any fresh evidence on a review. She referred several times to the fact that she probably only skim-read the notice.
61. She was cross-examined at length about why she did not claim compensation in the period immediately following the incident. She gave various reasons, including that she had never really thought about that possibility, that she hoped to get back to work soon and that it was simply a matter of accepting that she had significant sick leave she could use until it ran out. She had no loss of funds while on the first period of sick leave until early 2007. She then ran out of sick leave and has been on sick leave without pay for a considerable period of time.
62. She remained emphatic that that presence of Mr McLeod in her immediate workforce was a significant reason why she did not report the incident.
63. Mr McLeod did not give oral evidence so none of his assertions as to the fairness of his treatment of employees could be challenged. Subsequent to the hearing, Australia Post confirmed that Mr McLeod did leave the Mount Gambier centre on 15 February 2007 which is consistent with Ms Holliday’s claim that she did not feel comfortable about lodging the claim while Mr McLeod was her supervisor and that once he left the centre she lodged the claim.
64. Neither Mr Summers nor Mr Bodnarcuk gave oral evidence.
65. In a statement of Mr Cliff Michael (Exhibit A3/13-15), he sets out the prejudice that Australia Post will suffer if the applicant is allowed to proceed with her claim. He asserts that the delay in lodging the claim has deprived Australia Post of the opportunity to properly investigate the claim and that this situation is further compounded by the delay in Ms Holliday applying to this Tribunal.
contentions
66. Counsel for Ms Holliday submitted that she has provided an explanation as to her failure to report the claim in a timely manner and her failure to make application to this Tribunal within the timeline allowed by legislation.
67. Counsel submitted that Australia Post knew that she was asserting the back injury was work related from early 2007, but made no attempt to carry out any independent investigations at that point, they did not arrange to have her medically examined and there is no evidence that colleagues were interviewed at that point in time or that any workplace investigation took place.
68. Ms Holliday saw numerous health practitioners (13 in total) and yet Australia Post has not bothered to call for medical notes or reports from any of these treating practitioners.
69. Australia Post contends prejudice and called into question the applicant’s credibility both as to her claim that the incident was work related, her explanation for the delay in lodging the initial claim and as to the delay in lodging her application to this Tribunal. They also raise credibility issues arising out of her admitted failure to mention to her doctor that the back problem may be work related until shortly before she lodged her claim.
70. Australia Post pointed out that it was most likely the letter of 19 October 2007 advising her that she could not return to work that triggered her application to this Tribunal.
71. They went on to argue that the evidence thus far pointed to an unmeritorious claim and the prospects of success of the claim is a matter to be taken into account by the Tribunal.
consideration and application of the law
72. The Tribunal heard oral evidence from Ms Holliday. The Tribunal had no opportunity to observe or hear oral evidence from Mr McLeod, Mr Bodnarcuk or Mr Summers.
73. They are each important witnesses as to events and as to the issue of Ms Holliday’s credit. She claims to have mentioned the back incident to Mr Summers, she claims to have had significant issues about Mr McLeod as a supervisor that made her reluctant to report a work related injury to him and she told Mr Bodnarcuk that she intended to dispute the reconsideration. Each of these witnesses would undoubtedly be subject to vigorous cross-examination on these issues at a full hearing.
74. She explains her failure to report the incident to the GP by reference to the busy nature of the practice, the difficulty in getting appointments and the very short time allocated for appointments.
75. She comes to the Tribunal with an explanation for her delays in both reporting the alleged workplace incident and in challenging the reconsideration. Those explanations are prima facie reasonable, without the benefit of hearing more from Mr McLeod and Mr Summers.
76. The Tribunal would like to have had the opportunity to hear oral evidence from Mr McLeod as to his version of the issues raised with respect to his alleged bullying in the work place as this was a central theme to the failure to report the incident.
77. With respect to the delay in applying for review to this Tribunal, Ms Holliday lives in the country, appears to have had a reluctance to consult lawyers because of the cost involved and it is possible that she did not intend to challenge the reconsideration of July because she decided that the best solution was to just get back to work as soon as possible. She was well aware that her delay in initially reporting the injury was an obstacle to the success of her claim. She claims to have skim-read the document that advised of the right of review and the time lines involved and, on her account, she was not aware that she was out of time for review in this Tribunal.
78. Dr Graham’s letter of 18 October 2007 was, on one interpretation, a nail in the coffin of her career. It was received by her well outside the 60 day review period and after she had tried to return to work for a second time. Dr Graham’s letter implies that she cannot return to work in her prior job at all because of a degenerative back condition. It was not unreasonable that given this fairly dramatic turn of events, she immediately arranged to seek legal advice. She was being refused re-entry to a position in the work force that she had held for many years.
79. Because of the distance she lived from Adelaide and her desire to see a particular solicitor, it was not unreasonable that it then took another 2 weeks after receiving the letter for her to obtain an appointment with the solicitor and lodge the appropriate application for an extension of time.
80. The extension of time sought is not considerable and the Tribunal finds the explanation of the delay acceptable.
81. It is a prima facie rule that proceedings commenced out of time should not be entertained. The Tribunal must also have regard to other issues, such as prejudice and fairness as between the parties and the merits of the substantive application in determining whether this extension of time should be granted.
82. Turning then to any prejudice which may be caused to Australian Post if I were to grant the application.
83. Australia Post argues that they had no opportunity to conduct a contemporaneous medical examination of Ms Holliday and that this causes them prejudice. The flaw in that argument lies to a degree in Australia Post’s continued inaction once the claim was reported. They were aware of the claim from early 2007 onwards. No thorough workplace investigation appears to have taken place. Mr Summers must have been spoken to as there is a reference in the determination and reconsideration of his lack of recall of any complaint by Ms Holliday at the time of the alleged incident. There is no evidence that equipment was tested and no attempt was made to obtain reports from any of her numerous treating health practitioners. It appears that Mr McLeod was not interviewed until a later stage as there is no direct reference to any discussions with him in either the determination or the reconsideration. At the time that the claim was made, approximately 8 months had lapsed since the alleged incident.
84. The decision and the reconsideration were not based on any further in-depth investigation by Australia Post, but on issues relating to Ms Holliday’s credit and her delay in reporting the incident. If the delay in reporting the incident caused a problem, then one would have expected very prompt action by Australia Post in investigating the claim once it was made.
85. Australia Post did not have Ms Holliday medically examined and have not directed any independent assessment other than the assessment on papers that was requested from Dr Graham.
86. Medical evidence is available from very soon after the date of the alleged injury with respect to the back injury. Ms Holliday was seen by numerous health practitioners from July 2006 onwards and at a hearing, Australia Post would have the opportunity to make its own assessment of a large body of medical evidence in relation to Ms Holliday’s back injury.
87. There is some prejudice to Australia Post due to the delay in reporting the claim in the first place, but the prejudice has been compounded by their own inaction in not obtaining detailed contemporaneous statements from all potential witnesses at the time of the claim and from not immediately pursuing their own medical investigations at the time the claim was made.
88. With respect to the merits of the claim, there is no doubt that Ms Holliday will face a continued vigorous challenge to her credibility in the course of any hearing and the evidence of Mr McLeod and Mr Summers will be very important in terms of assessing her credit.
89. There is objective medical evidence available that confirms Ms Holliday sustained a back injury of some description in mid 2006. She provides an explanation for not immediately identifying it as a work related injury. She faces considerable prejudice if she cannot seek a review of the reconsideration.
90. There is an arguable case on the material before the Tribunal. It would be inappropriate for the Tribunal to embark on an analysis of Ms Holliday’s credibility at this stage in the process. In the case of Commissioner of Taxation v Brown [1999] FCA 1198, the Full Federal Court commented with respect to an application for extension of time to lodge an objection under the Income Tax Assessment Act 1936:
“It is important to appreciate the limits of the Commissioner's argument. Mr Bevan, who appeared with Mr Iuliano for the Commissioner, explicitly (and properly) made the following concessions:
(i) In determining whether a taxpayer seeking an extension of time in which to lodge an objection has prospects of success, the test to be applied is whether the objection arguably has merit.
(ii) The arguable merits test requires the taxpayer's case to be assessed at its highest.
(iii) It follows that, in applying the arguable merits test, findings of credit have no place. In other words, it is an error of law for the AAT to decide that the taxpayer's objection has no arguable merits on the basis that the taxpayer's evidence is not worthy of belief.
(iv) Ordinarily, it is inappropriate for the AAT to permit or to engage in cross-examination of the taxpayer's witnesses with the view to testing the veracity of their evidence so far as the merits of the objection were concerned. Mr Bevan specifically conceded that it was "inappropriate" for the AAT Member to have cross-examined the taxpayer as to the truth of his claim that the unit was an unsolicited gift offered by Mr Ray.”
91. The Tribunal is being asked by Australia Post to make findings with respect to the applicant’s credit on this interlocutory application. The Tribunal does not consider that appropriate and agrees with the observation of the Federal Court in the above case. In applying the “arguable merits test”, there is arguable merit in Ms Holliday’s case as presented.
92. The legislation providing for the extension of time is intended to be beneficial legislation. In Chalk v Commissioner of Superannuation (1994) 33 ALD 420, Davies J commented:
“Most provisions which authorise an extension of time are instances of beneficial legislation which, accordingly, should be applied beneficially. With respect to such discretions in rules of court, Reynolds, Hutley and Bowen JJA said, in Outboard Marine Australia Pty Ltd v. Byrnes: Bauknecht (1974) 1 NSWLR 27 at 30:-
‘We appreciate that the Rules of Court, particularly those relating to time, should never be allowed to be an instrument of tyranny. They do, however, have purposes, one of which is that the parties may know where they stand and regulate their affairs accordingly. It is also appreciated that where genuine issues ought to be litigated, if such can be done with fairness to all concerned, it is appropriate to take a benign view of applications to extend time.’
Those remarks indicate the importance of forming a view as to whether it is in the interests of justice that time be extended”.
93. In the matter of Windshuttle v Deputy Commissioner of Taxation (1993) 46 FCR 235, von Doussa J commented as follows:
“44. … The kind of prejudice which is relevant is prejudice that could arise to the opposing party in properly and fairly dealing with the subject matter of the dispute that will require determination if the extension of time is granted. Relevant matters will be whether witnesses have disappeared or their recollections have faded (provided of course that the evidence of the witnesses would have been material: Ulowski v Miller (1968) SASR 277 at 283-284 and cannot be refreshed Wedesweiller and Others v Cole and Others (1983) 47 ALR 528 at 534); whether avenues of useful enquiry have dried up or become difficult to pursue; and whether material documents have been destroyed. In a case like the present it may be open to the party potentially entitled to recover money to establish that by reason of the delay, the financial resources of the applicant have so altered for the worse that the chance of recovery of whatever sum is ultimately found to be due has seriously diminished. But as Bray CJ observed in Ulowski v Miller, at 284 and also in Victa Limited v Johnson (1975) 10 SASR 496 at 504, a court (or tribunal) should be slow to infer something to the existence of which the party asserting it is unwilling to depose. So, if a party against whom an extension of time is sought, intends to oppose that extension on the ground of prejudice, that party should adduce evidence which shows the nature and extent of that prejudice. In the present case no cause for prejudice beyond those matters listed above was asserted or deposed to.”
94. There is some prejudice to Australia Post in this case. However, the key players in this narrative have provided statements for the Tribunal and will be available at a hearing to deal with the issues that have been raised.
95. It is not appropriate to comment further on the strength of the applicant’s case other than it is an arguable case. A great deal will depend on her credibility and on the evidence given by her medical advisors. As already stated, it is not the Tribunal’s role at this point in time to make findings as to her credit. She experienced a back problem which she attributes to her employment and the back injury is well documented.
96. There is potential significant financial loss to the applicant if she is not allowed to pursue her claim. When Australia Post argues prejudice, they can be confronted with the fact that nothing was done to investigate her injury in any substantial way from the date of claim until October 2007 when they first sought advice from Dr Graham. The delay in bringing an application for review in this Tribunal did not add to the prejudice. It was the delay in notification of the claim in the first case that caused any prejudice.
97. The length of time that has elapsed since the 60 day limit expired is not large in the span of things. There appears to be a genuine issue in this case to be litigated.
98. Having considered all the evidence, I am satisfied that the extension of time should be granted until the date that the application was lodged, namely 2 November 2007.
I certify that the 98 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: ............J Coulthard.............................................
AssociateDates of Hearing 16 July 2008 and 24 July 2008
Date of Decision 17 November 2008
Counsel for the Applicant Mr Tim White
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr Michael Bell
Solicitor for the Respondent Sparke Helmore
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