Hull and Comcare - [2001] AATA 928

DECISION AND REASONS FOR DECISION [2001] AATA 928

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1461

GENERAL ADMINISTRATIVE DIVISION          )
           Re      BRUCE HULL
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date9 November 2001
PlaceSydney

Decision The Tribunal determines that for all the reasons nominated in this decision, an extension of time should not be granted to the Applicant to seek a review of the decision of the Respondent dated 11 May 1994.

[sgd} Dr J D Campbell
Member
CATCHWORDS
WORKERS' COMPENSATION - injury - determination - request for reconsideration - refusal because of time delay (two years) and no reasonable grounds or reasons to grant an extension of time - application for extension of time to lodge an appeal to Administrative Appeals Tribunal concerning the refusal to grant an extension of time by Comcare in 1994.

Safety, Rehabilitation and Compensation Act 1988 - sections 62, 63, 64, 65, 69, 72
Hunter Valley Developments Pty Ltd and Ors v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Comcare v A'Hearn (1993) 45 FCR 441
Telstra Corp Ltd v Razmovski (1994) 36 ALD 22
Barrett v Department of Social Security (1995) 38 ALD 609
Comcare v Willems,, Federal Court, 26 June 1996, 511/1995
Comcare v Willems (1996) 70 FCR 244
Maric v Comcare (1993) 40 FCR 244

REASONS FOR DECISION

Dr J D Campbell, Member

In this matter, Mr Bruce Hull ("the Applicant") seeks an extension of time to lodge an appeal before the Administrative Appeals Tribunal ("the Tribunal") concerning the decision taken by Comcare ("the Respondent") on 11 May 1994, that there were no reasonable grounds or reasons to grant an extension of time to review a decision of the Respondent dated 4 December 1991, with the request for reconsideration by the Applicant dated 6 December 1993 being denied.
A hearing was held before the Tribunal at Dubbo on 11 April 2001, at which the Applicant was represented by Mr Wilkins of Counsel. The Respondent was represented by Mr Elliott of Counsel. The Applicant, Mr Latham and Mr Brown presented oral evidence before the Tribunal.
The following material was placed into evidence before the Tribunal:

Exhibit No     Description    Date
T1 – T49 Pp1 – 95 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
T2       Chronology of Mr Hull's story
A1      Affidavit of the Applicant    4 December 2000
A2      Affidavit of Mr Latham, Solicitor    31 August 2000
A3      Affidavit of Mr Latham, Solicitor, including annexure    9 February 2001
A4      Taxation Return for the Applicant for financial years 1990/91 and 1991/92
R1      Affidavit of Mr A Brown      6 December 2000
R2      Affidavit of Mr Turner         2 March 2001
R3      Affidavit of Mr Day   3 March 2001
R4      Affidavit of Mr Hughes       3 March 2001
R5      Affidavit of Mr Sergyos       6 March 2001
R6      Affidavit of Mr Shillingford (excluding paragraph 22)     2 March 2001
R7      Taxation Returns for the Applicant for financial year 1988/89

Issues

The relevant issue in this matter is whether the Applicant should be granted an extension of time to appeal the decision of the Respondent dated 11 May 1994 to the Tribunal.
Legislation
The relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act 1988 ("the Act") and in particular sections 62, 63, 64, 65, 69, 72.
Background
The Applicant was born on 5 February 1936 and commenced his career as a Meat Inspector with the Department of Primary Industry, later renamed Australian Quarantine and Inspection Service (AQIS) in 1976. The Applicant worked in various locations in Queensland, Victoria and New South Wales and in August 1988 was transferred from Bourke to Dubbo to work at Fletcher International Exports Pty Ltd, a private Abattoir.
The Applicant lodged a claim for compensation with his employer on 21 September 1989. In this claim he indicated that he had injured his lower back at work on 24 July 1989, and that the injury to his back occurred as a consequence of long term back vertebrae and muscle stress arising from bad posture from working on hard and uneven floor surfaces (T4). A medical certificate from Dr Adams dated 11 September 1989 stated that he was suffering from lumbar back pain and would be unable to follow employment for one week (T3). A further medical certificate dated 25 September 1989, issued by Dr Dickens, indicated that the Applicant suffered from Lumbar Sacral Strain and was unable to follow employment for four days (T5). Following enquires by the Respondent dated 19 December 1989, the safety officer at the Abattoirs (Mr Hughes) wrote to the Respondent on 2 January 1990 with concerns about the slope of the floor in the inspection area at Fletchers, stating that he felt that this contributed to the Applicant's low back problem (T7). On 3 January 1990 Dr Dickens stated that the Applicant had consulted him on 21 July 1989, "when he was suffering from back strain, which I attributed to an awkward stance on a sloping floor at work". Dr Dickens stated that the Applicant was off work for three days and attended physiotherapy for three weeks (T8).
On 5 January 1990 the Applicant forwarded the two reports referred to in the previous paragraph and indicated that the work place issue nominated had been corrected (T9). The Applicant stated that on 8 January 1990 he was notified by the Respondent that payment had been approved for the period 25 July 1989 to 28 July 1989 (Exhibit A1).
Dr Adams certified, on 15 February 1990, that the Applicant was unfit for work from 14 February 1990 to 28 February 1990 because of lumbar back strain, for which he recommended physiotherapy (T10). The Respondent accepted liability on 23 April 1990, for the period 14 February 1990 to 18 February 1990 (T13).
On 3 October 1990, Dr Dickens certified that the Applicant was unfit for work because of recurrent back pain for the period 3 October 1990 to 10 October 1990 (T14). Compensation was paid for this period by the Respondent on 21 November 1990 and the Applicant was invited to read the back of the letter, which details aspects of his right for reconsideration of the decision, stating that such a request must be made in writing, within 30 days and detail reasons for such reconsideration. General matters were also nominated in regards to a review of a reconsidered determination by the Tribunal (T16).
Dr Adams certified the Applicant unfit for work on 17 October 1997, for the period 16 October 1991 to 18 October 1991, on account of lumbar strain (T17). On 25 November 1991, the District Veterinary Officer at Dubbo reported that alterations to the inspection stand had been carried out in June 1990 as a consequence of safety and grievance reports in January 1990, and that he was unaware of any additional complaints (T19). On 4 December 1991 the Respondent advised the Applicant of compensation for the period 16 to 18 October 1991, and that further payments would only be authorised after 5 January 1992, where specialist evidence concluded that any condition suffered by the Applicant is still related to or aggravated by his work. The Applicant was again reminded to read the back of the letter carefully as particular issues such as reconsideration of determinations and review by the Tribunal were nominated in the Notice to Employee (T20).
In December 1991 an offer of redundancy was made to the Applicant, who accepted with the voluntary redundancy being effected in February 1992 (Exhibit A1).
The Applicant stated that he sought legal advice from Baker's, Solicitors in Dubbo, on 15 June 1993 (Exhibit A1).
In two reports to Baker's, the Applicant's solicitors at the time, Dr Bentivoglio, a Consultant Orthopaedic Surgeon, stated in a report dated 23 August 1993 that the Applicant had a full range of movement in his low back region. Dr Bentivoglio formulated his diagnosis and opinion in the following manner (T21, p36):
"It is most likely that this gentleman aggravated pre-existing degenerative changes present in his low back region as a result of his work activities. Considering the length of time he worked for the Government as a meat inspector a significant proportion of these degenerative changes would have arisen from his work activities. I consider his treatment to date to have been appropriate. I would anticipate that he will continue to experience some degree of symptoms present in his back region if he partakes of heavy activities or duties which require him to do a lot of bending and twisting movements with his back. I doubt that he will come to more aggressive lines of treatment than those he has already received."
On 1 September 1993 the Applicant detailed the history of events in relation to his back to his solicitors, Bakers (T23).
On 6 December 1993 the solicitors, Bakers, requested a reconsideration of the decision to cease payments of compensation to the Applicant by virtue of the letter of 4 December 1991. The solicitors also forwarded the Applicant's statement of 1 September 1993 and the medical report of Dr Bentivoglio dated 23 August 1993 (T24).
On 5 January 1994 the Respondent replied that there was no decision to be reconsidered, as the decision of 4 December 1991 did not cease liability to pay compensation (Exhibit A1).
On 11 May 1994 the Respondent stated that the letter of 4 December 1991 constitutes a decision within the meaning of s 109 of the Act and is subject to review under s 62 of the Act. The Respondent further stated that the Applicant had been made aware of his rights and requirements associated with his compensation claim, and that he had 30 days from 4 December 1991 to lodge a request for reconsideration.
The Respondent further advised, in the same letter, that the Applicant's latest episode of 'strain' had resolved with the Applicant returning to work on 19 October 1991 and that no further claims had been submitted. The Respondent declined the Applicant's request for reconsideration as, in the Respondent's view, there were no reasonable grounds or reasons to grant such an extension (T28).
On 30 May 1994 Dr Grimsdell, Consultant Orthopaedic Surgeon, following a consultation with the Applicant, reported that the Applicant's low back pain and stiffness in the lumbar region with some radiation down both legs are constantly present, worse on activity and of a degree which keep him awake at night. Dr Grimsdell concluded (T29):
"His symptomatology in my opinion is associated with apophyseal degenerative changes in the lumbar region rather than due to any direct nerve root irritation or compression."
Dr Slack-Smith, Consultant Radiologist, reported on a plain X-ray of the lumbosacral spine dated 25 July 1989 in the following terms (Exhibit A3):
"the alignment is good and the lumbar disc spaces all intact. There is some dessication of the lumbosacral disc. No other bone or joint abnormality is detected."
Dr Mackie, Consultant Radiologist, reported on a plain X-ray of the lumbosacral spine dated 13 May 1994 in the following terms (Exhibit A3):
"The alignment is good and the lumbar disc spaces are intact. There is narrowing and desiccation of the lumbosacral discs with some marginal osteophyte formation at this level. No other abnormality is detected."
The Applicant states that neither the determination of 11 May 1994, nor the Respondent's letter of 22 June 1994, detailed any rights pertaining to an appeal to have the decision of 11 May 1994 reviewed. (Exhibit A1)
On 26 July 1994 the Applicant instructed new solicitors, namely Doyle Kingston and Swift (Exhibit A1)
On 5 August 1994 Doyle Kingston and Swift wrote to the Respondent seeking a copy of the determination of 4 December 1991. A copy was forwarded by the Respondent on 8 August 1994 (Exhibit A1).
On 11 January 1995 the Applicant's solicitor filed a statement of claim in the Supreme Court of New South Wales against R J Fletcher Pty Ltd in respect of the Applicant's back injury (Exhibit A1).
On 11 January 1996, Dr Bracken, Consultant Orthopaedic Surgeon, reported his opinion on the Applicant's low back problems in the following terms (T30, pp51-52):
"Considering the nature of the man's work over a long period of time, it would seem probable that the degenerative changes seen in his low back arose as a result of his conditions of work and have been aggravated and accelerated by his conditions of work over a long period of time. Such, that they became symptomatic about February 1990 causing him to cease that form of work in February 1992.
As he presents on 11/1/96 it is evident that he is suffering from postural low back pain arising in posterior spinal joints at low lumbar levels. In my opinion there is as a result of his conditions of work from 1990 onwards, permanent impairment of his back equivalent to 15 per cent of total value thereof. I can find no permanent loss of use of either leg secondary to his back condition.
In my opinion Mr Hull will remain permanently unfit for his previous occupation as a meat inspector. In future he will be fit for light work only basically of a sedentary or semi-sedentary type not requiring repeated bending or stooping and not requiring work in confined spaces or agility. In my opinion he should not in future be required to lift more than 10 kg at any level and any such lifting must be intermittent only.
There is no indication that any surgical treatment is required in respect of his back condition. His further treatment will be conservative in the form of medical and physical therapies which he should have on a regular basis. Considering the nature of his present disability and his age, it is to be expected that the degree of impairment of his back might be expected to rise with the passage of further time."

Dr Bracken confirmed his opinion following a further review of the Applicant on 5 June 1997 (T31)

On 8 August 1997 the Applicant's solicitors advised the Respondent of the intended common law proceedings and requested details of weekly compensation payments to date and of medical expenses paid (T32). The Respondent replied with these details on 22 August 1997 (T34).
On 19 September 1997 Dr Adams advised the Applicant's solicitors that the practice records started on 15 February 1990; that there were five consultations up to 17 December 1991; that all consultations were about back pain; that the injury in August 1989 was not observed primarily at the surgery, but reported to them subsequently by the Applicant. Finally Dr Adams stated that the Applicant has not been seen at the practice since 1991 (T35).
On 15 July 1992 a notice of discontinuance was filed, discontinuing the common law proceedings (Exhibit A1).
The Applicant's solicitors submitted a further claim for compensation and rehabilitation on behalf of the Applicant, on 16 March 1998, together with four medical reports (T37). The Respondent requested a medical certificate from the Applicant's solicitors on 26 March 1998 (T38), with a similar request being sent to the Applicant on 3 July 1998 (T40). The Applicant's solicitors forwarded a further copy of a medical certificate on 31 August 1998 (T42).
On 18 January 1999 the Respondent concluded that the new claim is for circumstances and conditions that have already been dealt with by the Respondent (T44). Following a request for reconsideration by the Applicant's solicitors on 12 February 1999 (T45), a reconsideration was undertaken on 20 April 1999, which affirmed the decision of 15 January 1999 (T49). On 9 June 1999 the Applicant sought a review of the "reviewable decision" of 20 April 1999 by the Tribunal. As a consequence of a Directions hearing at the Tribunal on 25 January 2000, the Applicant's solicitors withdrew the application seeking a review with the action being formally dismissed on 8 February 2000. On 31 August 2000 the Applicant filed the current application that seeks to review the decision of 11 May 1994.
Evidence
the applicant:
The Applicant described his job as a meat inspector for AQIS at the Fletcher's Abattoirs in Dubbo in 1988/89/90 as one which involved:

visual inspection and palpation of viscera and carcass on an inspection table;
bending to about 10 degrees off the horizontal; and
three inspectors undertaking 4000 such inspections per working day.

The Applicant indicated that he had claimed compensation for his back while at work, that he was having difficulty with his work and told Mr John Hughes that he was leaving the job because of his back, knowing that the condition was not going to go away.
After leaving work, the Applicant said he bought a small hobby farm at Narromine, which he worked for little income over the next five years. To supplement his income, he responded to an advertisement for a lawn mowing business, which he purchased, and was later successful in obtaining a mail-delivering contract.
The Applicant indicated that he left his job to get away from the type of work he was doing and to give his back a rest. It was after a period of such rest that he felt he deserved compensation for his back and approached Baker's Solicitors after seeing an advertisement. The Applicant indicated that he did not really understand all the issues when Baker's received a negative response from the Respondent in relation to the extension of time issue in June 1994.
In response to questions from Counsel for the Respondent, the Applicant indicated that he resigned some ten months after commencing work with the Department of Primary Industry (DPI) in Melbourne in 1976, and returned to Dubbo, where he worked delivering bread before rejoining DPI in Bourke in August 1977. After closure of the Abattoirs in Bourke, the Applicant was transferred to the City Council Abattoirs in Dubbo in February 1981, prior to being transferred to Camperdown, Victoria in April 1982. The Applicant stated that he moved about a lot, had no serious health problems, with medical checks-ups being arranged by DPI. The Applicant stated that in August 1988 or 1989 he joined Fletcher's International in Dubbo.
The Applicant indicated that he might have received the letter dated 23 April 1990, with his notice of rights and acceptance of his compensation claim for lumbar back strain from the Respondent. Similarly, the Applicant stated that he might have also received the letters of 21 November 1990 (T16) and 4 December 1991 (T20) from the Respondent. In relation to the latter, the Applicant stated that he probably did not read the rights portion of the document and that he did not take enough notice of the document in its entirety, as he had already returned to work and the matter of voluntary redundancy had become an issue.
The Applicant believed that his back problem was general knowledge amongst his workmates and that he had told Mr Hughes and Mr Finn that he was leaving because of his back problem. He does believe he told Mr Shillingford of his reason for leaving, nor was he able to recall that voluntary redundancy was not available to employees with outstanding compensation claims.
The Applicant indicated that he did not buy his 130 acre farm until June 1992; that he saw a specialist in mid 1993; and that he had no taxable income from the farm. However, he did indicate that he was running a small business, from his fathers' farm, from 1988 up to his resignation and purchase of his own farm in June 1992.
The Applicant, having responded to an advertisement by Baker's Solicitors and deciding to retain their services, felt that they had not fully advised him of his rights, nor did they have his early documents. He does remember that there was a discussion with Baker's concerning the issue of being out of time, but he decided that Bakers' were not diligent and subsequently changed solicitors.

In July 1994 he instructed new solicitors and was given advice regarding appealing to the Tribunal or pursuing common law action against Fletcher's. He accepted the advice to pursue common law proceedings, which lasted for a few years until discontinued in mid 1998. The Applicant did not instruct his new solicitors to maintain Comcare proceedings during this period (January 1995 – 1998). He reactivated such proceedings on the advice of his solicitors in 1998.
The Applicant stated that he did not go to a doctor after his redundancy in February 1992, for a period of 18 months, as he had resigned himself to his condition. Between 1994 and 1996 he had a x-ray of his lumbosacral spine and for the years 1997, 1998, and 1999 he did not visit a general practitioner about his back. In answer to questions in re-examination, the Applicant stated that he had physiotherapy and chiropractic treatment for his back in Dubbo in the years 1991 to 1994. Further, the Applicant's tax return for the financial years 1990/91 and 1991/92 clearly show losses of $6000 and $13508 respectively, while in 1994 he worked in a fruit shop in Cobar for some three months.
mr latham:
Mr Latham, solicitor, stated in an affidavit, that his client, the Applicant, did not receive the appropriate advice when the Respondent failed to inform him of his right to appeal the decision to the Tribunal in its decision of 11 May 1994, puruant to section 61 of the Act. Similarly, no advice of a right of appeal to the Tribunal was contained within the correspondence from the Respondent to Baker's dated 22 June 1994.
Further, Mr Latham was of the opinion that the Respondent would not suffer prejudice if the application was granted because, in his belief, there existed numerous and extensive documentation to deal with the Applicant's condition (Exhibit A2).
mr brown:
Mr Brown, a Comcare Officer, stated that the delay occasioned by the Applicant in lodging an appeal to the Tribunal has prejudiced the Respondent, in that the Respondent will be unable to investigate the circumstances of the alleged injury and all material details relevant to this claim, in that specifically (Exhibit R1):
(a)the Applicant's personnel files cannot be located;
(b)the documentation provided by the Applicant leaves it unclear as to when the Applicant was injured, with delay making it impossible to now investigate these matters;
(c)the precise date of any injury or injuries are not clear;
(d)the discontinuance of common law proceedings may have denied the Respondent the opportunity to rely upon sections 48 and 50 of the Act;
(e)by virtue of the nature and length of the brief period of incapacity, no independent specialist medical opinions were sought in the period 1989 to 1991, with the lateness of the current application, depriving the Respondent of arranging a contemporaneous medical examination of the Applicant;
(f)similarly, the Respondent has been deprived of arranging any updated medical reports from qualified medical specialists since 1991;
(g)the Respondent has been deprived of opportunities to have the Applicant's various workplaces investigated by appropriately qualified occupational physicians. Similarly no opportunity has been available to institute a timely rehabilitation program;
(h)the issues surrounding witnesses, witness statements and their ability to remember detail over such a period of time; and
(i)issues surrounding the Applicant's redundancy and issues associated with the Applicant's other activities at the time (market gardening) and activities subsequent to the events in question (lawn mowing business, farming and the mail contract).

Consideration and Findings

In this matter the Tribunal notes that the application is for an extension of time whereby the Applicant seeks to have the Tribunal consider the decision made by the Respondent on 11 May 1994, not to grant the Applicant an extension of time to allow reconsideration of a determination made by the Respondent on 4 December 1991. The Tribunal has been careful to detail the chronology of events in this matter earlier in the decision, and as a consequence makes the following findings of fact::
(a)The Applicant was employed as a meat inspector by the Australian Quarantine and Inspection Service (AQIS) at Dubbo (Fletcher International Exports) when:
(i)he injured his back at work on 24 July 1989, citing that the injury arose generally from the nature of his work which involved much bending and working on a sloping floor. Compensation was paid for work incapacity for the period 25 July 1989 to 28 July 1989;
(ii)following a further application on 21 February 1990, compensation was paid for work incapacity for the period 14 February 1990 to 18 February 1990 relating to the same condition of lumbar back strain, arising out of the injury of 24 July 1989;
(iii)following a further application on 14 October 1990, compensation was paid for work incapacity for the period 4 October 1990 to 10 October 1990 relating to the same condition of lumbar back strain caused by the injury of 24 July 1989; and
(iv)following a further application on 21 October 1991 compensation was paid for work incapacity for the period 16 October 1991 to 18 October 1991, relating to the same condition of lumbar back strain (aggravation), with the date of injury being 14 October 1991. Medical expenses of $60.50 were also paid relating to this injury.
(b)The Applicant was advised on 4 December 1991 that further payments could not be authorised after 5 January 1992, without specialist evidence indicating that any condition suffered by the Applicant was still related to his work or aggravated by his work.
(c)The Applicant returned to his full duties as a meat inspector at the expiration of each period of work incapacity.
(d)The Applicant accepted voluntary redundancy, with the date of effect being 26 February 1992.
(e)The Applicant ran a market garden business from his father's property between 1988 and June 1992. During this time net primary production loss was $6271 for the financial year 1990/91, and $13505 for the financial year 1991/92.
(f)The Applicant purchased a farming property of 130 acres in June 1992 and for the financial years 92/93 93/94 and 94/95 made no taxable income from primary production.
(g)The Applicant was provided with a notice to employee detailing rights and obligations concerning the reconsideration of determinations and review by the Tribunal, on at least two occasions, namely 21 November 1990 and 4 December 1991.
(h)The Applicant did not necessarily read, or if he did read, such notices, did not take sufficient notice of the contents.
(i)The Applicant, due to experiencing continued back pain, sought legal advice from Baker's, solicitors in Dubbo, in June 1993, having noticed an advertisement by that firm. Baker's arranged for a medical assessment by a consultant orthopaedic surgeon, Dr Bentivoglio, on 23 August 1993.
(j)Baker's sought a reconsideration of the Respondent's decision of 4 December 1991 to cease payments to the Applicant in the light of the consultant's opinion of 6 December 1993.
(k)The request for reconsideration was denied by the Respondent on 11 May 1994.
(l)The Applicant was not advised by the Respondent of his rights in the letter of 11 May 1994, concerning review of the decision of 11 May 1994 not to grant an extension of time to reconsider the decision of 4 December 1991.
(m)The Applicant changed solicitors in July 1994, with the new solicitors (Kingston, Swift) seeking from the Respondent a copy of the determination dated 11 May 1994, and again did not receive any advice as to rights of appeal to the Tribunal.
(n)The Applicants' solicitors, in following the Applicant's instructions, pursued a common law claim during the period January 1995 to mid 1998 when the action was discontinued. The Applicant also stated that at this time he was given advice by his solicitors concerning an appeal to the Tribunal, but accepted their advice to pursue the common law action. The Applicant also stated that he did not instruct his solicitors to maintain Comcare proceedings during this period.
(o)The Applicant's solicitors lodged a new claim for compensation on 16 March 1998 and following a determination (18 February 1999) and reconsideration by the Respondent on 20 April 1999, the Applicant lodged an application for review by the Tribunal on 15 June 1999. Following a directions hearing the application was withdrawn in February 2000.
(p)An application was made by the Applicant's solicitors on 31 August 2000 to seek an extension of time in order that the decision of 11 May 1994 be reviewed by the Tribunal.

Statutory and legal framework

The Tribunal notes that section 64(1) of the Act provides for a review application to be made to the Tribunal, with section 65(4) modifying the 28 days requirement nominated in section 29(2) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") to 60 days. Section 29(7) of the AAT Act grants power to the Tribunal to further extend that time for a review of an earlier reconsideration or determination.
In reviewing an application for an extension of time, and in the circumstances nominated in this application, the Tribunal is mindful off the considerations in Hunter Valley Developments Pty Ltd and Ors v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 where Wilcox J stated the following six areas to which consideration should be given:
(a)an applicant for an extension of time has to rebut a prima facie rule that proceedings should not be commenced outside the prescribed time, and to do so he must offer "an acceptable explanation of delay" and that it would be "fair and equitable in the circumstances "to extend time;
(b)any action taken by an applicant, apart from making the application for review, which permits a decision maker to be aware that the decisions previously made are not to be regarded as final;
(c) any prejudice the respondent may suffer;
(d) any unsettling of persons other than the respondent or of established practices;
(e) the merits of the substantial application; and
(f) consideration of fairness between applicant and other persons in similar positions and public interest.
The Tribunal also notes the following comments contained within the following cases:
(a)in Maric v Comcare (1993) 40 FCR 244 at 249 where O'Loughlin J stated that the precondition for the exercise of the discretion to extend time under section 29 of the AAT Act "is not limited to the question of delay but extends to aspects of fairness and equity";
(b)in Comcare v A'Hearn (1993) 45 FCR 441 at 444 the Full Federal Court commented that in relation to section 29(7) of the AAT Act "we note the Tribunal used language that might be taken to suggest that it is a precondition for success in such an application that an acceptable explanation for the delay must be given. Although it is to be expected that such an explanation will normally be given, there is no rule that such an explanation is an essential precondition"; and
(c)it was also noted in Comcare v A'Hearn [supra] that "it is simply not a principle of law to be applied that the sins of solicitors must be visited upon their clients".
The Tribunal also notes that the request for an extension of time relates to a determination which denied an extension of time to the Applicant, as reconsideration had not been requested within the 30 days nominated in sections 62(3)(b) of the Act. The Tribunal also notes the decision in Comcare v Willems, Federal Court, 26 June 1996, 511/1995, where Finn J stated:
"In coming to its decision Comcare, properly, should have regard
(i) to the cause of, and the explanation for, the delay in submitting the request;
(ii) to Mr Willems' conduct in this; and
(iii) to the consequences to Comcare of the delay and of Mr Willems' conduct."
The Tribunal also notes that the Full Federal Court in Comcare v Willems (1996) 70 FCR 244 confirmed the enunciation, by Finn J, of matters that should be considered, but went on to say that there may be other reasons, which make it entirely proper to look beyond the period of delay eg the merits of the substantive request. Further, the Full Court confirmed the finding by Finn J that in considering the question of an extension of time, it should only consider events up to the time of the lodging of the request for reconsideration.
The Tribunal also notes that section 62(3)(a) nominates that a request for reconsideration should set out reasons for the request.
In proceeding to a consideration of the facts, within the context of the statutory framework, the Tribunal notes that no question was raised before the Tribunal as to its jurisdiction to review the decision in question. That decision, which was made on 11 May 1994, was a refusal to allow the Applicant a longer period than the 30 days prescribed by section 62(3)(b) of the Act. The Tribunal concludes that the determination was a decision made pursuant to section 62 of the Act and, as such, is a reviewable decision pursuant to section 60(1) of the Act.
The Tribunal further includes that, being a reviewable decision, pursuant to section 63(c) of the Act a statement should have been forwarded to the Applicant advising him of the opportunity to make an application to the Tribunal for review of the decision. The Tribunal can find no evidence that such advice was forwarded to the Applicant in relation to the determination of 11 May 1994.
In turning to the issue of delay in making an application to the Tribunal for an extension of time pursuant to section 29(7) of the AAT Act, the Tribunal, in noting that a new claim for compensation was made by the Applicant's solicitors in March 1998, and from their pursuit of the matter prior to their withdrawal of the Application on February 2000, acknowledges that the course of action currently in train was one first alluded to by the Respondent in its decision of 20 April 1999, and again suggested at the Directions Hearing before the Tribunal in late January 2000. Further, the Tribunal notes that a further six months elapsed before an application was made to the Tribunal. From these considerations, the Tribunal concludes that it was the intention of the Applicant's solicitors when they lodged a new claim in March 1998 to do exactly that, and that the application should not be construed as an application for an extension of time to seek review of the decision of the Respondent of 11 May 1994. The Tribunal further observes that even by March 1998, such an application was out of time by at least four and a half years and that when eventually lodged, it was some six years out of time.
In considering the circumstances advanced for such delay, the Tribunal again notes the circumstances by which the current solicitors succeeded to this matter in August 1994 and their actions to pursue a common law action in the Supreme Court of NSW. This action was taken upon instructions from the Applicant, after consideration and advice was given to the Applicant, including a consideration of what is now the extension of time application before this Tribunal. The common law action was commenced in January 1995 and withdrawn in mid 1998. The Tribunal notes that the Applicant's solicitors made only one request for information from the Respondent on 18 August 1997, in which they advised the Respondent of the common law action and sought details of compensation payments made to the Applicant.
The Tribunal, reconsidering the circumstances of delay in this matter, appreciates that the decision at the centre of this matter was taken on 11 May 1994 and that for a variety of reasons the Applicant elected to change solicitors in August 1994. It is not for the Tribunal to adjudge the merits behind the Applicant's decision to change solicitors. He did so because he was dissatisfied and frustrated with the outcome contained within the determination of 11 May 1994. Nevertheless, in the Tribunal's view, it was the Applicant's decision to change solicitors in August 1994 and it was upon his instructions, after receiving advice from his new solicitors, including advice on the issue of seeking an extension of time to have the decision of 11 May 1994 reviewed by the AAT, that a common law action be pursued, in isolation, in January 1995. The Tribunal in making such statements recognises that the Applicant's intentions in the whole of this matter were directed towards what he perceived to be a positive compensation outcome for an ever present painful back. In this regard his actions and decisions were much influenced by the advice received from his various lawyers. However, the Tribunal must also observe that the Applicant did not initiate any activities to further evolve his compensation entitlements until June 1993 when he consulted with Baker's, despite having been advised on two occasions of his rights concerning both request for reconsideration and review by the AAT and the issue of time constraints involved. While the previous statement may be more relevant to a consideration of the determination of 11 May 1994, it does reflect in part on what the solicitors were confronted with in June 1993 and again in August 1994. In essence, the Tribunal concludes that each firm of solicitors instructed by the Applicant in this matter had issues to contend with, which for whatever reason were of the Applicant's making, and as such any outcomes arising from the solicitor's actions must factor in such inputs.
In summary, the Tribunal, in reflecting upon the issue of the six years delay in making the current application, does conclude that it is an unseemingly long delay. Despite any suggestions that this may be a solicitor determined delay, the Tribunal concludes that the delay has been occasioned both by the actions of the solicitors in pursuing particular options, and of the Applicant by virtue of his earlier actions which created, in part, the impediments which exist and his participation in decisions which led to negative outcomes. In relation to the latter comment, the Tribunal does recognise the difficulties an individual may have in seeking advice and relying upon specific advice to pursue a particular course of action. However in the circumstances of this matter, in the Tribunal's view, the Applicant was unable to put forward particular personal and/or geographic circumstances, which would differentiate himself from other members of his previous workplace community or the regional community in which he lives, in dealing with such matters.
The Tribunal also observes that between 11 May 1994 and the lodging of this application in August 2000, the Applicant, and/or his solicitors, lodged no other documents with the Respondent (apart from a request by the solicitors to the Respondent on 5 August 1994 for a copy of the determination of 4 December 1991 and a request on 18 August 1997 for details of the compensation payment to assist in the common law action), suggesting that a contest to the finality of the decision was in play. The first documentation to suggest this was the lodging of a claim for compensation by the Applicant's solicitors on 16 March 1999. In reflection, the Tribunal concludes that the Applicant, and/or his solicitors, have done little to keep the Respondent aware that the decision of 11 May 1994 is very much a live issue.
In considering the issue of prejudice to the Respondent, the Tribunal notes the statement and evidence of Mr Brown, a Comcare Officer. In noting the loss of the Applicant's personal file, which in the Tribunal's view is a matter for the employer and not necessarily a prejudice that should be visited upon the Applicant, the Tribunal also notes the absence of relevant specialist medical evidence until the opinion of Dr Bentivoglio was given on 23 August 1993. This report was made known to the Respondent by the Applicant's solicitors on 6 December 1993 when a reconsideration of the decision of 4 December 1991 was sought.

While it may be argued that the Respondent was on notice that a specialist report existed suggesting a relationship between the Applicant's ongoing painful back and the circumstances of his previous employment, it was contended by the Respondent that such a report was too little and too late. By the time such a report was in the Respondent's hands, some two years had passed and, as such, the Respondent was no longer in a position to obtain contemporaneous specialist medical opinion or analyse the particular circumstances of the workplace.
Further, while the Applicant may well submit that further specialist reports were obtained from Dr Bracken in 1996 and 1997 and from Dr Grimsdell in 1994, such reports were not made known to the Respondent until they were forwarded with the new application for compensation lodged on 16 March 1998. The Tribunal again notes the contention nominated by the Respondent in being able to deal with the issues, in the light of the Respondent's inability to have obtained earlier specialist medical reports on both the condition and the workplace environment.
The Tribunal also observes the particular documentation presented on behalf of the Applicant in relation to workplace conditions. While there is evidence to support the Applicant's contentions as to bending and particular issues relating to the inspection table, the Tribunal notes that statements made by the Applicant as to who he may have told that his back was an issue when he accepted voluntary redundancy (he thought he may have told Mr Hughes), are not congruent with the statements tabled in evidence for Mr Hughes by the Respondent. Similarly, the Applicant's statement that the issue of his bad back was general knowledge amongst his workmates at the time, is not generally consistent with the statements made by some of his work colleagues tabled by the Respondent.
The Tribunal again draws no negative inference as regards the credit of the Applicant, but does conclude that time, as evidenced by the inconsistencies between the Applicant's evidence and the statements of some of his work colleagues, may well cloud the memory as to what can and cannot be recalled. The Tribunal does conclude that difficulties exist for both parties when particular facts, their presence or absence, become issues in contention simply because of the passage of time.
Further, the Tribunal notes that the Respondent claimed prejudice arising from an inability to assess the nature of the Applicant's market gardening activities on his father's properties during the period 1988 – 1992 and the effects that these may have had on causation. Further, the Respondent contended that there is particular difficulty in assessing the effect of the Applicant's farming activities in 1992 and 1993 on both the aggravation and continuance of his low back problems. There are issues, which, the Tribunal concludes, are difficult to assess in the absence of the necessary contemporaneous material.
By virtue of the time delay, the Tribunal considers that because of a deficiency in the lack of contemporaneous medical specialist opinion and evaluation of the workplace, together with a detailed and contemporaneous understanding of the Applicant's work and non work activities, a hearing on the substantial issue in this matter would involve both a hearing based on the recall of issues some ten years past and dealing with medical specialist opinions, which at best could only be inferential and at worse speculative, in the absence of the necessary detailed clinical history to form such an opinion. In this regard, the Tribunal is of a belief that fairness to established practices cannot be maintained.
In considering the merits of the substantial application, which involves an assessment of the merits of the Applicant's request for an extension of time to seek reconsideration of the decision of 4 December 1994, the Tribunal notes the following issues:

that the request for reconsideration was made by the Applicant to the Respondent on 6 December 1993, some two years after the determination of 4 December 1991;
that the Applicant had had four periods of workers compensation payments during the period July 1989 and October 1991; that these were associated with low back pain arising from injuries at work on 24 July 1989 and 14 October 1991;
that after each period of compensation he had returned to full duty and that he accepted voluntary redundancy in February 1992;
that the Applicant did not seek to pursue his compensation matter until June 1993, when he sought advice from Baker's Solicitors; and
that the Applicant's solicitors did not request reconsideration until 6 December 1993, at which time they enclosed the specialist report of Dr Bentivoglio.

The Tribunal in having regard to the facts outline earlier by Finn J in Comcare v Willems [supra], considers that the Applicant himself was responsible for the majority of delay in seeking a reconsideration, with his solicitors adding to the delay by the manner in which they proceeded. The Tribunal notes that the Applicant offers little explanation for his failure to effect an earlier reconsideration, or indeed an earlier attempt to seek legal advice on his situation. Further, the Tribunal notes that the lateness of the request for reconsideration does hinder the Respondent's ability to address the necessary investigation in a timely and adequate manner, as the specialist medical report provided by the Applicant fails to detail the particulars of the Applicant's workplace activities which have led to the problem claimed, and further is silent on the Applicant's market gardening and farming activities. In considering the Applicant's conduct in the period leading up to 6 December 1993, the Tribunal can only comment that his less than diligent approach to his compensation issue has created difficulties for all, with he Tribunal being satisfied that the Applicant did not intentionally pursue this course of conduct.
In further consideration, the Tribunal, in addressing the issue of whether there is merit in the substantial request, namely the issue of whether the Applicant's low back pain and lumbar spondylosis arises from the nature and condition of his work at the abattoirs, finds that it is a matter which could well be argued. However, the Tribunal recognises that much of the argument at the time the request was made for reconsideration on 6 December 1993, relies upon memory and recall of facts some two to three and half years before this date. Further, despite all the material placed before the it, the Tribunal, in noting the material prior to the 6 December 1993, observes that most of the material was not placed before the Respondent at that time. In considering the relevant material, the Tribunal is unable to form a view of whether the Applicant's case is one of merit, in that there is a significant deficiency in both factual and medical detail as well as medical specialist opinion formed after a consideration of all the facts. The Tribunal would further comment that this absence of contemporaneous basic data, medical data and medical specialist opinion creates a continuing difficulty and does not permit the Tribunal to form a view as to the overall merits of the Applicant's case, even with the further medical specialist opinions made later. Time, as already indicated, has also not helped the Applicant's case, where statements made by work colleagues in 2001 are not necessarily supportive of many aspects of the Applicant's statement to the Tribunal.
In finalising its decision in this matter, the Tribunal, having considered the matter as it has done, does conclude the delay of some six years in seeking an extension of time to review a decision, which involved an application for extension of time some two years out of date, does create a significant problem. In analysing the situation, the Tribunal concludes that the reason for the delay rests mainly with the Applicant and his solicitors. The Tribunal finds that, for whatever reason, the Applicant's solicitors, having advised the Applicant of his options to further pursue issues with the Respondent concerning extension of time, were instructed to pursue a common law action in the Supreme Court of NSW in January 1995. The Tribunal further acknowledges the course of process followed by the solicitors, and concludes that this current action has arisen only after consideration of information received in a Directions Hearing in January 2000 before the Tribunal.
The Tribunal, in noting that for all periods since June 1993 the Applicant has been legally represented, and while the Applicant may have been dissatisfied with his first firm of solicitors, does conclude that at all times the Applicant did have access to legal advice. Although the Applicant may have misgivings about some of the earlier advice he received, the current action has returned events to the point in time where he dispensed with his first firm of solicitors in mid 1995, and further, concerns and covers all the difficulties apparent at that time. The Tribunal does conclude that in such circumstances, and in the overall particulars of this application, the Applicant has been treated with fairness, with his difficulties essentially arising from his primary failure to pursue a request for reconsideration in early 1992, or to seek legal advice at an earlier stage than June 1993.
The Tribunal, having earlier discussed the issue of prejudice, does find that if an extension of time were to be granted, the Respondent would suffer prejudice for the reasons outlined earlier in this decision.
Similarly, the Tribunal has addressed and concluded, for the reasons outlined earlier in this decision, that the merits of the matter of 14 June 1994 and for which this application for an extension of time has been made, are not of such weight that a determination is likely to be made in favour of the Applicant.
The Tribunal has also addressed the merits of the substantial application in the context of the reconsideration request of 6 December 1993 and in the context of the application of August 2000. Thus the Tribunal concluded that on account of an absence of detailed medical specialist opinion made in the context of the Applicant's workplace environment and other activities at the relevant time, the Tribunal is unable to form a view as to the likely success of the substantial application.
Determination
The Tribunal determines that for all the reasons nominated in this decision, an extension of time should not be granted to the Applicant to seek a review of the decision of the Respondent dated 11 May 1994.

I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: R Quinn     .....................................................................................
  Associate
Date/s of Hearing  11 April 2001
Date of Decision  9 November 2001
Counsel for the Applicant        Mr Wilkins
Counsel for the Respondent    Mr Elliot