Jennifer Vagulans and Thales Australia Limited
[2014] AATA 173
[2014] AATA 173
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/6997
Re
Jennifer Vagulans
APPLICANT
And
Thales Australia Limited
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 28 March 2014 Place Brisbane The Tribunal, under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), extends the time for making the application to review the decision, dated 14 March 2013, in respect of “chronic adjustment disorder and anxious mood”, to 30 December 2013.
..........................Sgd..........................................
Mr R G Kenny, Senior Member
CATCHWORDS
WORKER’S COMPENSATION – Rejection of claim for compensation – Application for review received by Administrative Appeals Tribunal outside legislated time frame - Application for extension of time to lodge application for review – Relevant factors – Application for extension of time granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 29(2), (7)
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 11
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 65
CASES
Australian Telecommunications Commission and Commonwealth and Schmidt (1986) 9 ALD 349
Comcare v A’Hearn (1993) 119 ALR 85
Hunter Valley Developments Pty Ltd and Cohen (1984) 7 ALD 315
Minister for Health and Aged Care v Pharmacia & Upjohn Pty Ltd (2001) 65 ALD 76
Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27
Queensland and Australian National Parks and Wildlife Service (1986) 13 ALD 158
REASONS FOR DECISION
Mr R G Kenny, Senior Member
28 March 2014
BACKGROUND
On 25 June 2012, Jennifer Vagulans lodged a claim under s 14 of the
Safety, Rehabilitation and Compensation Act 1988(Cth) (“the Act”) against her employer, Thales Australia Ltd (“the respondent”), for compensation for “work related stress due to bullying and harassment/shoulder fracture”. On 14 September 2012, a Reconsiderations Officer with QBE[1] determined that the respondent was not liable under the Act for the conditions diagnosed as “chronic adjustment disorder with depressed and anxious mood” and “fracture dislocation right shoulder”. In a reviewable decision on
14 March 2013, QBE affirmed that decision and gave a “Notice of Rights”. Its terms were that, if she believed the decision was wrong, she had the right to apply for a review of the decision to the Administrative Appeals Tribunal (“AAT”) and that, if she wished the AAT to review the decision, she had to apply to the AAT within 60 days of the date she received the decision.
[1] QBE Insurance Group Limited Self Insurance Services for and on behalf of the respondent.
More than nine months later, Ms Vagulans wrote a letter to the AAT which was received on 30 December 2013. The letter was treated as an application for review of the reviewable decision. Its receipt was outside of the 60 day time frame set out in s 29(2) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) as modified by s 65 of the Act. Ms Vagulans, on 7 January 2014, then made an application for an extension of time for lodging her application for review out of time. The respondent has opposed her application.
ISSUE AND LEGISLATION
Under s 29(7) of the AAT Act, the Tribunal may extend time for making an application for review. It reads:
(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.
The issue for the Tribunal is whether it is reasonable in Ms Vagulans’ circumstances to extend the time for the lodgement of her application for review to 30 December 2013.
SUBMISSIONS
For the respondent, Mr John Wallace of counsel submitted that the considerations set out by Justice Wilcox in Hunter Valley Developments Pty Ltd and Cohen[2] (“Hunter Valley”) should be applied to reject Ms Vagulans’ application. In particular, he submitted that three considerations were relevant in Ms Vagulans’ case. The first of these was that the legislative intention to limit the time for making an application should be respected and that, to decide otherwise, there must be an acceptable explanation for the late lodgement and no prejudice to the respondent. Mr Wallace submitted that no reasonable explanation had been given by Ms Vagulans for waiting so long to contact the AAT. Secondly, he submitted that the respondent would be prejudiced if an extension of time were granted. He noted that the Human Resources (“HR”) employees of the respondent were unavailable; that there were no medical certificates for work incapacity; that there were no statements from any of Ms Vagulans’ co-workers who might be able to support her claims; and that too much time had elapsed since the alleged harassment occurred. Thirdly, he referred to the merits of Ms Vagulans’ case and submitted that there had been workplace counselling by Ms Vagulans’ superiors which would constitute reasonable administrative action taken in a reasonable manner as was determined in the reviewable decision.
[2] (1984) 7 ALD 315.
Ms Vagulans submitted that she had not been aware of the time limit for making an application to the Tribunal and had relied at all times on her solicitor, Mike Fitzgibbon from Jon Kent Lawyers, whom she had engaged to advance her compensation claim. Though she had not kept in contact with Mr Fitzgibbon, she understood that all aspects of her claim were being managed by him on her behalf.
EVIDENCE
In her letter of 30 December 2013, Ms Vagulans did not refer to the lateness of her application. She included the following comment:
My Lawyer’s firm has all my paperwork. Recently Mike passed away. Unsure who my lawyer is now.
In another letter to the AAT, dated 20 January 2013, Ms Vagulans wrote:
I had been trying to contact Mike Fitzgibbon all of last year. I spoke to Carol and Daisy who are both secretaries at Jon Kent Lawyers. Both gave Mike my messages, no answer from him.
I finally got Daisy to get Mike to call me in October. Mike told me my claim was not going any further. I received a letter dated 14 Nov 13 with the documents I was supposed to receive in March.
A short while later I received a call from Daisy, Mike’s receptionist, to tell me he had died and I was to receive a new lawyer. When I got this letter I contacted the AAT as soon as I could.
The reviewable decision, dated 14 March 2013, was sent by QBE to Jon Kent Lawyers but, in a letter dated 21 March 2013, Jon Kent Lawyers wrote to Ms Vagulans enclosing a copy of the reviewable decision and advising her that she could apply to the AAT for review and that this had to be done within 60 days. That letter continued:
We cannot recommend the application be made given the import of the both the original decision and the review decision.
Therefore if you wish to discuss the matter further or take the matter further we ask that you make an appointment in that regard. We note that we will not be taking any further steps in the matter unless you provide us with specific instructions in that regard.
In her evidence, Ms Vagulans said that she did not receive that letter until
November 2013. She described problems with mail deliveries at her home address early in 2013 and said that she had arranged for a post office box for receipt of mail in February or March 2013.
In evidence was a copy of a letter, dated 14 November 2013, from Jon Kent Lawyers to Ms Vagulans. It noted that she had been trying to contact them. Ms Vagulans was invited to make an appointment if she wished to do so. A copy of their earlier letter of
21 March 2013 was enclosed with the letter of 14 November 2013.
An e-mail exchange between Mr Fitzgibbon and Ms Vagulans was in evidence.
On 9 April 2013, Ms Vagulans wrote to him about a meeting that had been scheduled with the respondent on 17 April 2013. She asked Mr Fitzgibbon for advice on whether she should attend the meeting or resign. His response, dated 10 April 2013, was that she should attend the meeting and also again stated that “we can still appeal to the Administrative Appeals Tribunal”. Ms Vagulans agreed that she had seen
Mr Fitzgibbon’s e-mail but said that she did not know that she was to contact the AAT and believed that it was his job to do so. Ms Vagulans agreed that she made no contact with Jon Kent Lawyers in August, September or October 2013 and said that she did not wish to bother him as he was a busy man. Ms Vagulans agreed that she lived within a
20 minute drive of Jon Kent Lawyers in Ipswich and yet did not attempt to see
Mr Fitzgibbon there when she had been unable to contact him by phone.
On 18 December 2013, Jon Kent Lawyers again wrote to Ms Vagulans. In this letter, reference was made to their letter of 14 November 2013 and continued:
If you wish to discuss the matter further please advise. If we do not hear from you within 14 days from the date hereof we will be closing the file.
In a statement dated 31 July 2012, Ms Vagulans detailed the events which she believed constituted bullying and harassment while she was employed by the respondent.
She identified those involved and also some co-workers who witnessed the behaviour. Kimberley Calabria is the Human Resources Business Partner with the respondent.
She completed an affidavit on 24 February 2014, referring to various aspects of
Ms Vagulans’ employment, which she gleaned from Ms Vagulans’ statement. She noted that Ms Vagulans worked for the respondent from November 2009 until April 2013 and initially reported to Steve Sellars who resigned from the respondent in November 2013. Ms Vagulans had advised him of workplace stress in May 2012. Ms Calabria noted several more complaints in 2011 and 2012 by Ms Vagulans to the HR team which, at that time, comprised Emily Metaxas, Amy Leddick and Kelly Vines. Ms Calabria advised that Ms Metaxas now lives in Canada where she is employed by Thales Canada and that Ms Leddick has been on maternity leave since June 2013.
CONSIDERATION
Hunter Valley was concerned with the time limits applicable under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) but I accept that the factors listed by Wilcox J in that case are relevant under the AAT Act. Indeed, the factors have been recognised and applied quite generally in many cases in various statutory contexts. A “benign view of applications to extend time” has been urged where this can be done “with fairness to all concerned”.[3] Nevertheless, the starting point is usually what
Wilcox J in Hunter Valley called the “prima facie rule”: that proceedings commenced outside the time limits should not be entertained but that they may be if the applicant satisfies the Tribunal that it is proper to do so.[4] The provision in the AAT Act requires that the Tribunal be satisfied that it is reasonable in all the circumstances to do so.
A significant, but not essential,[5] consideration in that analysis is the explanation for the delay. Other factors in this matter include the strength of an applicant’s case[6] and any prejudice to the respondent.[7]
[3] Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27, 30; Queensland and Australian National Parks and Wildlife Service (1986) 13 ALD 158.
[4] See Australian Telecommunications Commission and Commonwealth and Schmidt (1986) 9 ALD 349, 353.
[5] Comcare v A’Hearn (1993) 119 ALR 85 at 88.
[6] See Minister for Health and Aged Care v Pharmacia & Upjohn Pty Ltd (2001) 65 ALD 76, 78.
[7] See Hunter Valley Developments Pty Ltd and Cohen (1984) 7 ALD 315, 320.
Ms Vagulans’ evidence was that, at all material times, she believed that her claim was being managed by Jon Kent Lawyers through Mr Fitzgibbon. The letter to her, dated
21 March 2013, had the QBE decision enclosed with it. On receipt of that, she should have been alerted to the rejection of her claim, to the reluctance of Mr Fitzgibbon to continue with the claim and to the need for her to take further steps if she wished to do so. However, Ms Vagulans’ evidence was that she did not receive that letter and she referred to problems with mail arrangements at that time. Ms Vagulans maintained that position in the face of vigorous cross-examination by Mr Wallace. She claimed that she only received that communication when a further letter was sent from Jon Kent Lawyers on 14 November 2013. In the meantime, there was an e-mail exchange in April 2013 between Ms Vagulans and Mr Fitzgibbon. Significantly, therein, Mr Fitzgibbon wrote that “we” can still appeal to the AAT. That language makes it reasonable to draw an inference that Mr Fitzgibbon was still involved in Ms Vagulans’ claim process. That she had attempted to contact Jon Kent Lawyers is also confirmed in the letter of
14 November 2013 which noted that she had been trying to contact them and
Ms Vagulans was invited to make an appointment if she wished to do so. An inference of continuing involvement by Jon Kent Lawyers is supported by the letter of 18 December 2013 from Jon Kent Lawyers in that they were open to further discussion and that the file had not been closed at that time.
I accept Ms Vagulans’ evidence that she did not receive the letter of 21 March 2013 to which the reviewable decision was attached. I am also satisfied that a person, in
Ms Vagulans’ circumstances with lack of sophistication in respect of legal matters and proceedings, may well have understood that her claim process, including the aspect relating to the AAT, continued to be managed by Jon Kent Lawyers. Indeed, within
two weeks of receiving the letter of 18 December 2013, she had written and sent a letter to the AAT which has been treated as her application for review of the reviewable decision. While that application was more than seven months outside of the required time frame, I am satisfied that this is explained by her belief that Jon Kent Lawyers continued to act on her behalf.
Prejudice to the respondent was said by Mr Wallace to flow from unavailability of the respondent’s employees who were in the HR team at the relevant time. However, as I read Ms Calabria’s affidavit, there were three such employees, only one of whom has ceased working for the respondent. Another is on temporary leave and would appear to be available to give evidence in the future. The third person is employed by
Thales Canada in which case she would, in all probability, be available to provide a statement and/or to give evidence by phone or other means. There is no suggestion that the respondent’s HR records would not be available to assist in the resolution of
Ms Vagulans’ claim. In her statement, Ms Vagulans identified her treating doctor with whom she consulted from early 2012 and it has not been suggested that he and/or his medical records would be unavailable for an AAT hearing. The reviewable decision referred to the report of psychiatrist Dr Chalk, which was supportive of a relationship between Ms Vagulans’ employment and her psychiatric condition and, again, it has not been suggested that he would be unavailable for a hearing.
Thirdly, Mr Wallace referred to the merits of Ms Vagulans’ case and submitted that there was no prospect of her being successful in relation to her claim for an injured shoulder. Ms Vagulans conceded this and advised that she did not wish to proceed with that part of her claim. In relation to the psychiatric condition, Mr Wallace submitted that liability of the respondent turned on the issue of whether this had resulted from reasonable administrative action taken in a reasonable manner. Little explanation of this aspect of the rejection of Ms Vagulans’ claim was provided in the reviewable decision. I am satisfied that Ms Vagulans is entitled to a full analysis of that component of her claim.
DECISION
In all the circumstances of this matter, I am satisfied that it is reasonable to extend the time for the making of Ms Vagulans’ application to the Tribunal for a review of the decision, dated 14 March 2013, in respect of “chronic adjustment disorder and anxious mood”, to 30 December 2013. I am also satisfied that it is not reasonable to extend the time for the making of Ms Vagulans’ application to the Tribunal for a review of the decision, dated 14 March 2013, in respect of “fracture dislocation right shoulder”.
Accordingly, the Tribunal extends the time for making the application to review the decision, dated 14 March 2013, in respect of “chronic adjustment disorder and anxious mood”, to 30 December 2013.
I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member ...........................Sgd..........................................
Associate
Dated 28 March 2014
Date of hearing 24 February 2014 Applicant In person Counsel for the Respondent Mr John Wallace Solicitors for the Respondent Ms Natalie Fisher, Curwoods Lawyers
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