Lee Heylin and Tidewater Marine Australia Pty Ltd
[2013] AATA 480
[2013] AATA 480
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/5651
Re
Lee Heylin
APPLICANT
And
Tidewater Marine Australia Pty Ltd
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 9 July 2013 Place Sydney The Tribunal decides that:
(i)The letter dated 4 September 2012 from the applicant’s solicitors to the respondent’s solicitors did not substantially comply with the approved form in the Seafarers Rehabilitation and Compensation Act1992 and was not a new claim;
(ii)The applicant is granted an extension of time to 17 December 2012 to lodge his application for review.
...........[sgd].............................................................
Senior Member J F Toohey
CATCHWORDS
COMPENSATION – PRACTICE AND PROCEDURE – deemed denial of liability – whether correspondence from applicant’s solicitors constituted new claim – substantial compliance –
whether reconsideration requested within time – correspondence did not substantially comply with the approved form and was not a new claim
PRACTICE AND PROCEDURE – EXTENSION OF TIME – whether extension of time should be granted – relevant principles – Tribunal satisfied extension of time should be granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 ss 25, 29
Seafarers Rehabilitation and Compensation Act 1992 ss 63, 73
CASES
Dandy Power Equipment Pty Ltd v Mercury Marine Pty Ltd (1982) 44 ALR 173
Elliott and Swire Pacific Ship Management Australia Pty Ltd [2011] AATA 942
Hunter Valley Developments Pty Limited & Others v Cohen (1984) 7 ALD 315
Re Asset Risk Management Ltd (1995) 59 FCR 254Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451
REASONS FOR DECISION
Senior Member J F Toohey
9 July 2013
BACKGROUND
This matter concerns a claim by Mr Lee Heylin under the Seafarers Rehabilitation and Compensation Act1992 (the Act) for compensation for injuries sustained in March 2010 while working on board an offshore supply ship. Mr Heylin lodged his claim for compensation on 24 March 2010.
By letter dated 6 July 2010, the respondent advised it was “not in a position to determine liability to pay any compensation, medical or other costs” but was “prepared to cover medical and compensation [sic] on a without prejudice and without admission of liability basis”. The respondent advised it was seeking “further medical and factual evidence” so that a decision about liability could be made.
From the documents before me it appears that, from the time of his claim, Mr Heylin saw a number of specialists including a neurosurgeon, occupational physician and orthopaedic surgeon, for treatment and assessment.
By letter dated 10 November 2010, Mr Heylin's solicitors wrote to the respondent’s solicitors to say there had been “ample time and access to medical documentation” to enable a decision to be made and, “[g]iven your client’s deemed denial of liability” urgent reconsideration of the decision was requested. There does not appear to have been any response.
On 12 January 2011, Mr Heylin filed an application with the Administrative Appeals Tribunal for review of a deemed disallowance of liability. On 25 February 2011, the Tribunal in Perth determined it did not have jurisdiction to deal with Mr Heylin’s application.
Except insofar as they concern the same injuries and form part of the history to the present matter, the claim lodged on 24 March 2010 and the Tribunal’s decision on 25 February 2011 are not relevant to the present proceedings.
THE ISSUES
The questions that arise in these proceedings concern:
(i)whether correspondence from Mr Heylin's solicitors to the respondent’s solicitors constituted a new claim for compensation;
(ii)whether Mr Heylin sought reconsideration of a deemed denial of liability within time;
(iii)if the answer to (ii) is no, whether an extension of time should be granted.
THE CLAIM LODGED ON 3 MARCH 2011
On 3 March 2011, Mr Heylin lodged a further claim for compensation for his injuries. There is no dispute that this claim satisfied the provisions as to form in s 63(2) of the Act and was validly made.
Twelve days later, on 15 March 2011, when the respondent had not determined the claim, the respondent was taken, by operation of s 73 of the Act, to have made a decision disallowing Mr Heylin’s claim.
From the documents before me, it appears that Mr Heylin continued to see specialists for treatment and assessment. It is clear from the documents that the respondent’s solicitors were fully aware of this. In June 2011, a detailed Income Capacity Assessment was prepared for the respondent by a workplace rehabilitation counsellor. In September 2011, Mr Heylin was reviewed by Dr Anthony Smith, orthopaedic surgeon at the request of the respondent’s solicitors.
In October 2011, Mr Heylin was admitted to hospital for what is described by the respondent as “non-work-related” carcinoma of the bladder requiring surgery. He was discharged on 31 October 2011.
Correspondence from Mr Heylin’s solicitors
On 19 March 2012, Mr Heylin’s solicitors wrote to the respondent’s solicitors confirming that the respondent had been making payments to Mr Heylin on a “without prejudice” basis from around the time of his injury. They referred to a report dated 19 September 2011 from Dr Smith provided to them by the respondent’s solicitors on 7 February 2012. They advised: “we feel that you are now in a position to properly make a formal determination in respect of liability”. They advised that, if they did not hear from the respondent’s solicitors within 12 days, they would proceed to request a reconsideration.
On 23 March 2012, the respondent's solicitors replied that they were obtaining instructions in response to the letter from Mr Heylin’s solicitors. On 16 April 2012, they advised they were continuing to seek instructions. On 5 July 2012, they advised that they had made arrangements for Mr Heylin to attend on Dr Smith again.
On 4 September 2012, Mr Heylin's solicitors again wrote to the respondent's solicitors. They confirmed that Mr Heylin had seen Dr Smith on 30 July 2012 and, given the time that had lapsed, “we feel that you should now be in a position to properly make a formal determination in respect of liability …” They advised that, if they did not hear within 12 days, they would proceed to request a reconsideration. There was no response.
On 19 September 2012, Mr Heylin's solicitors wrote again to the respondent’s solicitors formally requesting a reconsideration and a reviewable decision within 28 days. There is no argument that this request satisfied the requirements in the Act as to form.
On 17 December 2012, Mr Heylin’s solicitors sought review by this tribunal of the respondent’s “failure to respond and implied denial of liability”.
Was the letter of 4 September 2012 a new claim?
Compensation is not payable to a person under the Act unless a claim for compensation is made by or on behalf of the person under s 63: s 63(1). A claim must be made in writing in a form approved for the purposes of s 63 and, except in circumstances which are not relevant here, must be accompanied by a medical certificate also in an approved form: s 63(2). Strict compliance with an approved form is not required and substantial compliance is sufficient: s 63(4).
For Mr Heylin it is submitted that the letter of 4 September 2012, while not in the approved form, substantially complied with it. If accepted, it follows from this submission that Mr Heylin’s request for reconsideration on 19 September 2012 (following a further deemed denial of liability) was within time.
In support of the submission that the letter of 4 September 2012 was a new claim, it is said that, a claim having already been made on 24 March 2010, the request to make a formal determination in respect of liability was sufficient to constitute a new claim.
One difficulty with this argument is that, if the letter of 4 September 2012 constituted a new claim, then the letter of 19 March 2012, which was in almost identical terms, should also be taken to be a new claim with the result that the formal request for reconsideration on 19 September 2012 was out of time, at least in respect of the earlier letter.
More importantly, substantial compliance requires more than a passing reference to an approved form. It is a matter of degree and concerns "the practical effect of what has been done, which should be compared with the practical effect the legislature appears to have sought to achieve": Re Asset Risk Management Ltd (1995) 59 FCR 254 ; 130 ALR 605 at 607, per Burchett J. In Dandy Power Equipment Pty Ltd v Mercury Marine Pty Ltd (1982) 44 ALR 173, Smithers J, considering the meaning of "substantially" said (at 191-192):
[It] is a word the meaning of which in the circumstances in which it is applied must, to some extent, be of uncertain incidence and a matter of judgment. There is no precise scale by which to measure what is substantial.
In this case, the letter from the applicant's solicitor bore no real resemblance to the approved form. It comprised three brief paragraphs; it contained none of the information required by the approved form and did not attach a medical certificate. Moreover, there is a clear statutory framework for making claims, for decisions disallowing liability to be deemed made after specified periods, and for specified periods within which reconsideration may be sought. These periods give certainty to the process and give an applicant redress where a respondent fails to determine a claim in time. Too broad a view of what substantially complies with the approved form has the potential to cause confusion.
In all the circumstances, I am not satisfied the letter of 4 September 2012 substantially complied with the approved form. It did not amount to a new claim.
It follows that, by the time the request for reconsideration was made on 19 September 2012, some 17 months after 15 March 2011, when the respondent was deemed to have made a decision disallowing the claim, it was out of time.
SHOULD THE APPLICANT BE GRANTED AN EXTENSION OF TIME TO LODGE HIS APPLICATION?
By s 25(5) of the Administrative Appeals Tribunal Act1975, the Tribunal has jurisdiction to review a deemed decision. By s 29(3), an application for review of a deemed decision must be made within 28 days after the date of the deemed decision. The Tribunal may extend that time if it is satisfied that is it is reasonable in all the circumstances to do so: s 29(7).
The principles by which a decision whether to grant an extension of time should be guided are well-known. They were summarised by Wilcox J in Hunter Valley Developments Pty Limited & Others v Cohen (1984) 7 ALD 315 as including:
·whether there is an acceptable reason for the delay;
·whether the applicant rested on their rights or made the decision-maker aware they contest the finality of the decision;
·any prejudice to the respondent;
·public considerations including the unsettling of others and established practices;
·the merits of the substantive application;
·fairness between the applicant and others in a like position; and
·whether it is fair and equitable in all the circumstances to extend time.
No single factor is determinative; all relevant factors have to be weighed together: Zizza v Federal Commissioner of Taxation (1999) 55 ALD 451.
For Mr Heylin it is submitted that, by advising they were seeking instructions to determine liability, and by continuing to send him for medical assessments, the respondent’s solicitors acted as if they were in the process of determining liability. Further, that he always cooperated and attended appointments. It is submitted that the respondent has had three years in which the determine liability and that no prejudice would flow to the respondent from an extension of time.
The respondent’s solicitors submit that an extension of time should not be granted because 17 months elapsed before Mr Heylin’s solicitors sought reconsideration of his claim and it is important that “proper procedure be followed”. Given the time that the respondent has had in which to make a determination, and the lack of response to repeated requests from Mr Heylin’s solicitors, I find that submission surprising.
The respondent’s solicitors further submit that a determination of liability has not been made because they are still investigating Mr Heylin’s claim, including whether his bladder cancer has any bearing on his claims. What further information is required and why the existing information is not sufficient to determine liability is not clear. Nor is it clear how a “non-work-related condition” which apparently declared itself some 18 months after the workplace injury bears on a determination of liability.
The respondent’s solicitors further submit that no prejudice would flow to Mr Heylin if the extension of time were not granted because he continues to be paid incapacity payments and medical expenses. On the other hand, it is submitted, prejudice would flow to the respondent because it has to “keep going” without proper procedure being followed.
That submission shows a remarkable disregard for Mr Heylin who is still waiting for a determination. Without an extension of time, his claim will come to an end, except insofar as the respondent decides to continue payments. Moreover, if the respondent ultimately declines liability, or the Tribunal ultimately finds against him, what of the payments he has received so far?
Correspondence was provided at the hearing showing that, on 7 February 2013, the respondent’s solicitors wrote to Comcare “requesting a report in order to assist [them] in reconsidering a deemed determination which denied liability for [Mr Heylin’s injury]”. On 19 February 2013, Comcare replied, referring to “material provided with your letter” and to “a majority view” in the medical evidence which appeared to be that Mr Heylin’s duties “may have aggravated a pre-existing condition in his neck and shoulder”. Comcare concluded that Mr Heylin “met the test required by the Act for liability to be accepted” and recommended the respondent “revoke the deemed determination ... and in its place accept liability” for Mr Heylin’s injuries.
Comcare’s opinion is no more than that; it does not bind the respondent but it raises the question why ask for an opinion if only to disregard it, as apparently happened
Mr Heylin is aged 58. The medical reports show that he sustained a serious injury that means he will not return to his pre-injury employment. Considering the medical reports, it could not be said that his claim has no prospect of success.
Taking all of these matters into account, I am satisfied that it is reasonable to grant Mr Heylin an extension of time.
There is one final matter. In Elliott and Swire Pacific Ship Management Australia Pty Ltd [2011] AATA 942, Deputy President Hack considered a case in which the circumstances closely resembled the present case. The same solicitors represented both respondents. They took a very similar approach in Elliot as they have in this case, including to the application for an extension of time.
The respondent’s solicitors submit that the decision in Elliot to grant an extension of time should be distinguished because, whereas only two months had elapsed in that case, 17 months had elapsed in Mr Heylin’s case. I do not agree. The time that has elapsed in the present case says more about the conduct of the respondent’s solicitors than anything done by, or on behalf of, Mr Heylin.
As in Elliot, this is a case where the interests of justice plainly require than an extension of time be granted. An extension is granted to 17 December 2012.
I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. ......[sgd]..................................................................
Associate
Dated 9 July 2013
Date(s) of hearing 5 July 2013 Solicitors for the Applicant Koffels Solicitors & Barristers Solicitors for the Respondent Jarman McKenna Barristers & Solicitors
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