Louise O'Connell and Australian Postal Corporation
[2014] AATA 179
[2014] AATA 179
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/0160
Re
Louise O'Connell
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 2 April 2014 Place Melbourne In accordance with subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) the time in which Ms O’Connell may make an application to review the decision of the Corporation to reject her claim for compensation for an injury to her neck allegedly suffered on 18 April 2011 is extended to 5pm on 13 January 2014.
.........................[sgd]...............................................
Deputy President J W Constance
CATCHWORDS
COMPENSATION – application for extension of time in which to lodge application for review – significant delay - applicant advised by then solicitors not to apply to Tribunal for review – whether prejudice to the respondent – merits of the substantial application – extension of time granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 29(7), 29(8)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 64, 65
CASES
Budd and Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
Comcare v A’Hearn (1993) 119 ALR 85
Kuljic and Secretary, Department of Social Security [1994] FCA 886REASONS FOR DECISION
Deputy President J W Constance
2 April 2014
INTRODUCTION
During 2011 and since Ms O'Connell has been employed by the Australian Postal Corporation.
Ms O'Connell claims that she was injured at work on 18 April 2011 when she picked up a tub of mail. She notified her employer of this incident.
On 4 September 2012 Ms O’Connell made a claim for compensation for an injury to her cervical spine in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth), which I shall refer to as the SRC Act. The Corporation refused the claim and Ms O'Connell sought a review of that decision. By letter of 9 November 2012 the Corporation affirmed its initial determination. In this letter the Corporation informed Ms O’Connell that she had the right to request the Administrative Appeals Tribunal to review the decision and that such a request should be made within 60 days of her receiving the decision.
Section 64 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) gave Ms O'Connell the right to apply to this Tribunal for a review of the decision refusing her claim. Section 65 of this Act read in conjunction with section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) requires that an application for review be made within 60 days of the applicant receiving the document setting out the terms of the decision. The Tribunal may extend the time for the making of an application for review.[1]
[1] AAT Act, subsection 29(7).
On 13 January 2014 Ms O'Connell lodged with the Tribunal an application for review of the decision. At the same time she sought an extension of time in which to do so.
For the reasons which follow the time for filing the application for review will be extended to 13 January 2014.
THE POWER OF THE TRIBUNAL TO EXTEND THE TIME FOR MAKING THE APPLICATION
Subsection 29(7) of the AAT Act provides:
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.
Subsection 29(8) provides:
The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.
BACKGROUND
Ms O'Connell received the letter of 9 November 2012 shortly after that date. At the time she was represented by a firm of solicitors. On the advice of her solicitors she did not apply to have the decision reviewed by the Tribunal.
On 19 May 2011 (i.e. prior to making her claim for the injury to her cervical spine), Ms O’Connell lodged with the Corporation a claim for compensation for injuries to her left shoulder and lower back suffered in the incident on 18 April 2011. The Corporation accepted liability for a “left rotator cuff injury/lumbar strain with sciatica” and subsequently compensated Ms O’Connell for her loss of income arising from these injuries.
THE CORPORATION’S ARGUMENT
When Ms O’Connell notified the Corporation of the incident she referred to pain in her lower back and leg (T5)[2]. In her claim form dated 19 May 2011 (T6) she stated the injury she suffered was to her left shoulder, lower back and left leg.
[2] The reference to “T” documents is a reference to documents filed in applications 2013/5562 and 5563 presently before the Tribunal.
On 20 March 2012 Ms O’Connell was assessed by Mr Haig, Consultant Orthopaedic Surgeon, at the request of the Corporation. According to Mr Haig’s report of 29 March 2012 (T25) Ms O’Connell complained of low back pain, pain radiating to her left leg and weakness in her left shoulder. There is no report of symptoms associated with her cervical spine.
In June 2012 Ms O’Connell jarred her neck and shoulder during a Pilates exercise class; the next day her whole neck was “locked”(T33).
In July 2012 Ms O’Connell was assessed by Dr Sleigh, Occupational Physician, on behalf of the Corporation. At that time the symptoms she reported related to her lower back, left leg and shoulder.
The first reference to Ms O’Connell’s cervical spine in the material presently before the Tribunal is in a report of a radiological examination which took place on 8 August 2012 (T41). The clinical note in that report was “left C6/7 radiculopathy”.
On 27 August 2012 the Corporation decided that Ms O’Connell no longer suffered any loss of income arising from her lower back or shoulder injuries.
On 6 September 2012 Ms O’Connell lodged a claim for compensation for an injury described as “neck pain with referred pain down left arm” (T42). Ms O’Connell claimed that this injury occurred during the incident on 18 April 2012.
Following the lodgement of her first claim Ms O’Connell provided several medical Certificates of Capacity to the Corporation. It was not until 9 August 2012 that any of these certificates referred to a condition related to the cervical spine (T58).
On 11 October 2012 the Corporation denied liability for the claimed injury. Ms O’Connell requested that this determination be reconsidered. Ms O’Connell did not provide any further evidence in support of her claim and on 9 November 2012 the determination was affirmed. Ms O’Connell was legally represented at the time and, on the advice of her solicitors, she did not seek to have the Corporation’s decision reviewed by the Tribunal.
Based on this history the Corporation argued that Ms O’Connell’s claim is without merit and that there is no genuine issue to be determined. Consequently Ms O’Connell should not be allowed additional time to apply to the Tribunal for a review. Further it was argued that Ms O’Connell had the benefit of legal advice at the time she received notice of the reviewable decision and acted on this advice, even though it was now thought to be imprudent.
The Corporation relied also on the lack of evidence linking the claimed injury to the incident of 18 April 2011 and that the claim for compensation was made only after the Corporation decided that Ms O’Connell was no longer entitled to compensation in respect of the injury to her lower back and shoulder. It was argued that the time which had elapsed since the date the injury is alleged to have occurred prejudices the Corporation in responding to an application for review.
PRINCIPLES TO BE APPLIED
In accordance with section 29(7) the Tribunal may extend the time for making an application if it is satisfied “that it is reasonable in all the circumstances to do so.”
The Federal Court set out the principles to be applied in an application such as this in Budd and Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540. The Court stated, in part:
18 … 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).
The question of the likelihood that an applicant will succeed on the merits of the application is an important factor in deciding whether an extension of time should be granted. In Kuljic and Secretary, Department of Social Security, [1994] FCA 886, the Federal Court said, in part:
6. One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal. If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal...
CONSIDERATION
The delay in making the application
The time which has elapsed since the expiry of the 60-day period prescribed by the SRC Act is significant, being approximately 12 months. Prima facie time-limits imposed by statute are to be observed.
The reason for the delay
I am satisfied that Ms O’Connell relied on the advice of her solicitors at the time that she should not seek a review of the Corporation’s decision. Apart from Ms O’Connell’s statement that she was advised not to “rock the boat” the reasoning behind this advice is not clear. However the Full Court of the Federal Court has held that delay caused by a legal representative may amount to an acceptable explanation for that delay and that it is not necessary that the consequences of the action of a legal representative should be visited upon the client.[3]
[3] Comcare v A’Hearn (1993) 119 ALR 85.
Action by Ms O’Connell since she received notice of the reviewable decision
After receiving notice of the decision Ms O’Connell did not communicate further with the Corporation in regard to her neck condition until 17 October 2013. At that time Ms O’Connell’s present solicitors wrote to the Corporation requesting an extension of liability to include an injury to Ms O’Connell’s neck. When the solicitors were advised of the previous decision they acted promptly to request a copy of the decision. Once the copy was received the solicitors acted promptly to make the application under consideration.
I am satisfied that by mid-October 2013 the Corporation was aware that Ms O’Connell was seeking compensation in respect of an injury to her neck. However in the intervening 10 months the Corporation was entitled to consider that Ms O’Connell had abandoned this claim.
Prejudice to the Corporation
I am satisfied that the Corporation would not suffer significant prejudice should the extension of time be granted. Although the incident claimed to have caused the injury occurred almost three years ago, the Corporation has been aware from shortly after the incident that Ms O’Connell claimed to have been injured at that time.
Further, Ms O’Connell made a claim for an injury to her neck arising from the incident and this claim was made within time. Although the claim was rejected, the Corporation had the opportunity to investigate it fully and presumably did so before it finally rejected the claim in November 2012. Should the extension of time be granted the Corporation will have the opportunity to further investigate Ms O’Connell’s present condition.
I have taken into account that Ms O’Connell has two other applications currently before the Tribunal which relate to the injuries to her shoulder and lower back. If an extension of time is granted the application can be linked to the existing applications and heard at the same time. This will minimize any additional costs which will be incurred by the Corporation.
The merits of the substantial application
Whilst there is no reference in the documents before the Tribunal to Ms O’Connell having a problem with her neck until June 2012, there are references from that time onwards. Ms O’Connell may be able to explain this and to give evidence as to the symptoms she suffered in her neck since the incident. In my view she should have the opportunity to do this as it may be that her evidence will be sufficient to establish that her claim has merit.
Balancing the various considerations
Taking into account all of the above considerations I am satisfied that to be fair to Ms O’Connell she should be granted the extension of time which she seeks. The delay is significant, but not excessive, particularly as the Corporation was made aware of the likelihood that Ms O’Connell would be pursuing her claim by October 2013. In part dependent upon the credibility of Ms O’Connell, the claim may be shown to have merit and she should have the opportunity to give her evidence and to have it tested. The prejudice to the Corporation is not great, bearing in mind that the claim was made previously and the Corporation has had the opportunity to investigate it.
In all the circumstances I am satisfied that it is fair to both parties that Ms O’Connell be able to have the Tribunal review the subject decision.
DECISION
In accordance with subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) the time in which Ms O’Connell may make an application to review the decision of the Corporation to reject her claim for compensation for an injury to her neck allegedly suffered on 18 April 2011 is extended to 5pm on 13 January 2014.
I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance. .........................[sgd]...............................................
Associate
Dated 2 April 2014
Date(s) of hearing 24 February 2014 Counsel for the Applicant Ms C Serpell Solicitors for the Applicant Ryan Carlisle Thomas Counsel for the Respondent Ms A McMahon Solicitors for the Respondent Sparke Helmore
0
10
0