Le Plastrier and Military Rehabilitation and Compensation Commission

[2011] AATA 652

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 652

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/1559

GENERAL ADMINISTRATIVE DIVISION		)
Re		WARREN LE PLASTRIER

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member K Bean

Date20 September 2011

PlaceAdelaide

Decision Pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975, the Tribunal grants the applicant an extension of time until 28 April 2011 for the making of an application for review of the reviewable decision dated 15 April 2003.

..............................................

K BEAN
  (Senior Member)

CATCHWORDS

PRACTICE AND PROCEDURE – Application for extension of time – Delay of eight years – Partial explanation provided – No evidence directed to prejudice or merits – No significant unfairness in granting application – Extension of time granted.

Administrative Appeals Tribunal Act 1975 (Cth) s 29(7)

Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Lukac v Linfox Armaguard Pty Ltd & Anor [2010] FCA 740

REASONS FOR DECISION

20 September 2011   Senior Member K Bean   

introduction

1.The applicant, Mr Warren Le Plastrier, was medically discharged from the Royal Australian Navy in April 2001, having served since August 1996.  On the material before me, at least one of the reasons for his discharge appears to have been that he was suffering from the condition of “narcolepsy”.

2.The applicant subsequently made a claim for payment of compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) in respect of that condition. In order to succeed in that application, it was necessary for him to show that his condition of “narcolepsy” was materially contributed to by his naval service.

3.However, on 5 November 2001, a delegate determined that liability had not been established and therefore disallowed the applicant’s claim for compensation.  On 4 May 2002, the applicant’s father, Mr Peter Le Plastrier, sought reconsideration of that decision on behalf of his son and has subsequently been authorised to act for his son in relation to his son’s compensation entitlements.

4.On 15 April 2003, a reconsideration decision was issued affirming the determination denying liability for narcolepsy.  The main reason for that decision was the lack of a definite diagnosis of the condition.  The applicant’s father (Mr Le Plastrier) decided not to seek review of that decision by this Tribunal at that time, partly because he was himself sceptical as to the diagnosis of narcolepsy.  However, he did pursue other proceedings seeking to have his son’s medical records amended under the Freedom of Information Act 1982 (Cth) (the FOI Act).

5.Those proceedings were commenced in 2005 and ultimately resolved in March 2008, when a consent decision was issued by this Tribunal.  Pursuant to that decision, the applicant’s records were not amended but the Tribunal directed that the records be annotated to indicate that the evidence “might support” an additional diagnosis of “Adjustment Disorder with mixed Anxiety and Depressed Mood (Chronic).” 

6.On the material before me, it appears that Mr Le Plastrier, who was also acting for his son in those proceedings, believed when he agreed to that consent decision that it would have the effect that compensation liability would be accepted for his son’s narcolepsy condition.  He accordingly wrote to the respondent on numerous occasions providing them with a copy of the consent decision.

7.However when no acceptance of liability was forthcoming, he ultimately lodged an application for review of the reconsideration decision with this Tribunal, on 28 April 2011, and on 11 May 2011 he also applied for an extension of time for the lodging of that application.

8.Section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) requires applications to be lodged within 28 days of the decision of which review is sought unless an extension of time is granted. As the applicant’s application has been made some eight years after the reconsideration decision was made, the application cannot proceed unless an extension of time is granted, pursuant to s 29(7) of the AAT Act.

the evidence

9.There was no dispute between the parties that, as referred to above, Mr Le Plastrier made an application under the FOI Act to amend certain documents relating to his son’s medical discharge pursuant to s 55(6)(c)(i) of that Act, on the basis that the opinion expressed in the documents was based on a mistake of fact. Following adverse decisions in relation to that application, Mr Le Plastrier pursued that issue in this Tribunal and the matter proceeded to a hearing. However, after the hearing had proceeded for four days, an agreement was reached between the parties as a result of which a decision was made by the Tribunal by consent. Pursuant to that decision, the Tribunal decided not to amend the documents in issue but rather to order that certain documents be annotated to include a statement as follows:

“There is medical evidence that might support an additional diagnosis of Adjustment Disorder with mixed Anxiety and Depressed Mood (Chronic) …”

10.The documents which the consent decision required to be annotated included a number of key documents relating to the applicant’s discharge, including the “Report of a Medical Board of Survey” and the “Notice of Final Recommendation of Board of Final Medical Survey”.

11.As referred to above, Mr Le Plastrier said at the hearing of this application that he believed the effect of the consent decision made by the Tribunal on 7 March 2008 would be that compensation liability would be accepted in respect of his son’s condition of narcolepsy.  He said that he was acting for his son in the FOI proceedings and would not have agreed to resolve the proceedings if he had not been of that belief.

12.Mr Le Plastrier also referred to his own state of health, stating that in 2002 he had suffered two strokes and a heart attack.  He said that following cardiac rehabilitation, in 2003 he had applied for review of the initial decision rejecting liability for his son’s condition of narcolepsy.  He also said that following the adverse reconsideration decision, he did not pursue the matter in this Tribunal for two reasons, the first being that “I had no idea how FOI and Tribunal operated” and the second being that he was not convinced at that stage that his son had narcolepsy.  He also referred to the fact that at stage he believed he had three to six months to live. 

13.He went on to explain that in 2005 he brought the FOI application in the Tribunal and that matter proceeded for three and a half years.  He said that following resolution of that matter he believed that narcolepsy would remain as the principle reason for medical discharge, albeit that annotations would be made referring to the condition of “Adjustment Disorder with mixed Anxiety and Depressed Mood (Chronic)”.

14.Mr Le Plastrier said that in July 2009, the respondent accepted liability for that condition, “Adjustment Disorder with mixed Anxiety and Depressed Mood (Chronic).”

15.He also said that he had subsequently supplied copies of the Tribunal’s consent decision to the respondent on numerous occasions, expecting that this would have the result that liability would also be accepted in respect of “narcolepsy”.  However, he had received no reply to his correspondence. 

16.Later in his evidence, Mr Le Plastrier stated that he was still in extremely poor health, that he became exhausted rapidly and could only walk a maximum of 50 paces.  He said he was on daily morphine and was often bedridden.

17.In relation to his son, he said that his son was currently able to live independently in another house on the same property as his father and that he was working for an understanding employer.  However he said that his son still had “all sorts of problems”.

18.As I understand the position of the respondent, none of these matters are disputed for the purposes of the extension of time application. 

the issue

19.The issue currently before me is whether the applicant should be granted an extension of time, pursuant to s 29(7) of the AAT Act, for the filing of his application for review in relation to the reconsideration decision dated 15 April 2003.

the legal framework

20.Under s 29(7) of the AAT Act, the Tribunal has the power to extend the time for filing an application for review if “it is reasonable in all the circumstances to do so”. 

21.Generally, to extend time the Tribunal must consider that there is an acceptable explanation for the delay and it is fair and equitable in the circumstances to extend time: per Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. The applicable principles were summarised by Cowdroy J in Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540, by reference to an earlier decision of Federal Magistrate McInnis, as follows:

“18.  … In Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109 Federal Magistrate McInnis considered the nature of the discretion contained in s 44(2A)(a) of the AAT Act, and said at [10]:

‘In the light of A’Hearn’s case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it’s fair and equitable in the circumstances to extend time. In the light of the decision in Ahearn’s [sic] case it is useful to set out in modified form the relevant principles in relation to the exercise of the Court’s discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows:

1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The "prescribed period" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550).

2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302).

3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287).

4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287).

5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).

6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417).

7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528).

Such principles were applied by Gray J in Pham v Commonwealth of Australia [2002] FCA 669, although in the context of s 46PO(2) of the Human Rightsand Equal Opportunity Commission Act 1986 (Cth).’

19 The Court respectfully approves of McInnis FM’s articulation of the principles in relation to the discretion contained in s 44(2A)(a) of the AAT Act.”

22.The applicable principles were discussed in Budd and Phillips in the context of s 44(2A)(a) of the AAT Act rather than s 29. It is clear from the relevant authorities however that whilst they ought not be followed in a “slavish” way, these principles are also relevant in the context of s 29[1]. Other matters which have also been found to be relevant in the context of s 29 include the fact that there was a significant issue to be determined, the potential financial loss to an applicant, the length of the delay and ignorance of appeal rights[2]. 

[1]  Brown v Commissioner of Taxation (1999) 42 ATR 118.

[2]  Pearce, D., Administrative Appeals Tribunal, Butterworths (2^nd Edition, 2007), pp 56-62, [5.6]-[5.20].

23.Whilst the merits of the substantial application are clearly a relevant consideration, recent authorities have also suggested that caution should be exercised in reaching a view on the merits of an application in the context of an extension of time application and that a court or tribunal should be “slow to reject an application for an extension of time … for no reason other than that the appeal, if prosecuted, would be unlikely – even very unlikely – to succeed”[3].

[3]  See Lukac v Linfox Armaguard Pty Ltd & Anor [2010] FCA 740 at [12]-[13] and the authorities there referred to.

consideration

24.I propose to address each of the most relevant criteria set out above in turn.

Has the applicant provided an acceptable explanation for the delay?

25.As set out above, Mr Le Plastrier has at all relevant times been authorised to act on behalf of his son in relation to compensation, FOI and related issues. It is clear on the material before me that Mr Le Plastrier has been in extremely poor health since 2002. He has also explained that he did not seek review of the reconsideration decision in 2003, partly because he was unfamiliar with the Tribunal and partly because in any event he did not believe at that stage that his son was suffering from narcolepsy. What he did do was to pursue issues relating to his son’s medical discharge via a different mechanism, namely the FOI Act and he ultimately settled those proceedings in 2008 on terms which he believed would have the effect of compensation liability being accepted in respect of narcolepsy. He subsequently forwarded copies of the consent decision to the respondent on numerous occasions, apparently in the belief that they would eventually accept compensation liability for narcolepsy. It was only when that outcome did not eventuate and in response to a suggestion made by an officer of the respondent that he sought review of the reconsideration decision.

26.In these circumstances, I am satisfied that the above matters constitute an acceptable explanation for the delay in seeking review of the reconsideration decision, or at least a substantial part of that delay.

Prejudice

27.Mr d’Assumpcao, who appeared as counsel for the respondent, submitted that the respondent would suffer prejudice if required to defend the application, given the eight year delay since the reviewable decision was made.

28.I accept that the respondent would suffer some prejudice if an extension of time was granted, although I would expect that prejudice to be minimal given the length of the delay.  Whilst I accept that recollections may be less sharp or accurate given the delay, I would expect all relevant contemporaneous documentation would still be available.  Certainly there is no evidence before me that the respondent would suffer any particular prejudice, or as to the nature or extent of any prejudice which would be suffered.

Other actions taken by the applicant

29.Mr d’Assumpcao also submitted that the applicant had “rested on his rights”.  However, for the reasons given above, I do not entirely accept that submission.  Whilst Mr Le Plastrier may have had an inaccurate understanding of the effect of the action he was taking, I am satisfied that he took some steps which at least in his perception were directed in part to establishing his son’s compensation entitlements.  Having said that, I also accept that one of the reasons Mr Le Plastrier did not pursue review of the reconsideration decision prior to 2008 was that he did not consider his son had narcolepsy and to that extent he made a conscious decision not to pursue that issue between 2003 and 2008.  Between 2008 and 2011 however, I accept that he believed the resolution of the Tribunal proceedings would result in acceptance of compensation liability for narcolepsy, and that he took actions consistent with that belief, albeit those actions may not have served to alert the respondent to the fact that he wished to pursue the question of compensation liability for his son’s narcolepsy.

Fairness

30.I consider the circumstances surrounding this application to be relatively unusual, given that Mr Le Plastrier pursued other proceedings in this Tribunal between 2005 and 2008 which he believed were related to the reviewable decision the subject of this application.  Further, it seems he also formed a mistaken belief about the effect of the consent decision in the other proceedings on the question of compensation liability for his son’s narcolepsy.  Given the unusual nature of these circumstances, I do not consider that considerations of fairness as against other applicants militate significantly against the granting of the application.

The merits of the substantive application

31.There is very little before me directed to the question of the correctness of the reconsideration decision dated 15 April 2003.  As I have noted above, in order for the applicant to be entitled to compensation for “narcolepsy”, it must be established that his naval service “materially contributed” to that condition[4].  However there is very little before me bearing on the question of whether the applicant’s service did contribute to the condition or not, or on the nature or extent of any relationship between the condition and the applicant’s service.  Accordingly, there is no basis in the material available to me for a conclusion that the substantive application has poor prospects.  Indeed the respondent made no submission that the substantive application lacked merit.

[4] This is the effect of s 4 of the SRC Act as in force at the relevant time.

32.It therefore follows that reference to this criterion also does not militate against the application being granted.

Overall assessment

33.As I have noted above, the circumstances surrounding this application are quite unusual.  Whilst Mr Le Plastrier did not pursue review of the reconsideration decision in 2003, he did pursue another application between 2005 and 2008, which related to the reasons for his son’s medical discharge and potentially, to issues of compensation liability.  Further, in evidence which is not disputed by the respondent, Mr Le Plastrier says that he believed the resolution of that matter, arrived at in 2008, would result in compensation liability being accepted for his son’s narcolepsy condition.  He subsequently pursued that acceptance, albeit by forwarding copies of the 2008 consent decision to the respondent, rather than applying for review of the reconsideration decision. 

34.I consider that these unusual circumstances both explain and excuse to a large extent the lengthy delay in Mr Le Plastrier seeking review of the 2003 reconsideration decision on his son’s behalf.  Notwithstanding those circumstances, if there had been material before me suggesting that the substantive application was unlikely to succeed, that would have been a factor heavily militating against an extension of time being granted, particularly after such a relatively lengthy delay.  In the absence of any such material however, I have concluded that, on balance, the criteria to which I am required to have regard weigh in favour of an extension of time being granted.  In reaching that conclusion, I have had particular regard to the explanation provided by Mr Le Plastrier, together with the actions he has taken since 2003, his state of mind in relation to those actions, and the lack of any serious prejudice to the respondent occasioned by an extension of time being granted.

decision

35.Pursuant to s 29(7) of the AAT Act, the Tribunal grants the applicant an extension of time until 28 April 2011 for the making of an application for review of the reconsideration decision dated 15 April 2003.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean

Signed:         ..........J Coulthard.......................................
  Associate

Date of Hearing  6 July 2011
Date of Decision  20 September 2011
Advocate for the Applicant       Mr Peter Le Plastrier
Advocate for the Respondent   Mr P d'Assumpcao
Solicitor for the Respondent     AGS