Luu and Australian Postal Corporation

[2003] AATA 628

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 628

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/213 & 

GENERAL ADMINISTRATIVE  DIVISION		)               N2003/302
Re		CHI HOA LUU

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date26 May 2003

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing, the Tribunal grants the extension of time pursuant to section 29 subsection (7) of the Administrative Appeals Tribunal Act 1975 to make an application to the AAT.

[sgd]G Ettinger
  Senior Member

CATCHWORDS

EXTENSION OF TIME - appeals against decisions to refuse liability for injuries - Tribunal to exercise discretion

Administrative Appeals Tribunal Act 1975 s29(7)

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42

Pulitano and Telstra Corporation Limited (unreported, Decision No 8878, 27 July 1993)

Young and Telstra Corporation Limited (unreported, Decision No 9229, 22 December 1993)

Comcare v A'Hearn (1993) 45 FCR 441

Re Petrou and Australian Postal Corporation (1992) 25 ALD 407

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Lucic v Nolan (1982) 45 ALR 411

Harris v Moore (1993) 34 ALD 333

REASONS FOR DECISION

26 May 2003   Ms G Ettinger, Senior Member                 

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. The Applicant pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.

3.        The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding pages are a true copy of the decision and reasons for decision herein of:

Senior Member G Ettinger

Signed:         
          ....................................................................................……………………………….

Associate

Date of Hearing  26 May 2003

Date of Decision  26 May 2003

Representative for Applicant      Ms M Corvalar

Counsel for Applicant                  Mr D Burwood

Solicitor for Respondent              Ms S Johnson
Counsel for Respondent             Ms R Henderson

DRAFT JUDGMENT
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N03/283
By MS G. ETTINGER, Senior Member
LUU and AUSTRALIA POST CORPORATION
SYDNEY, MONDAY, 26 MAY 2003

MS ETTINGER:   The task before the Administrative Appeals Tribunal was to deal with two applications for extension of time in regard to applications brought before the Tribunal by Mr Chi Hoa Luu, the applicant in matters N2003/283 and N2003/302.  The respondent in these proceedings was the Australian Postal Corporation which I shall refer to as Australia Post. 

The applications concerned appeals against decisions to refuse liability for injuries to Mr Luu's back claimed to have been sustained at work on 5 October 1999 and 13 September 2000, which the applicant considers are compensable pursuant to the Safety Rehabilitation and Compensation Act 1998.  I shall refer to that legislation as “the Act”. 

Liability with regard to the 1999 injury was refused on 17 January 2000 and affirmed on 16 February 2000.  Liability for the second injury of 13 September 2000 was denied on 17 July 2001.  That decision was affirmed on 11 December 2001.  The applicant applied to the AAT on 6 March 2003. 

At the hearing the applicant was represented by Mr Burwood of counsel who was instructed by Brydens Law Office, and the respondent was represented by Ms R. Henderson of counsel instructed by Sparke Helmore Solicitors. 

ISSUE BEFORE THE TRIBUNAL

The issue before the Tribunal was whether the discretion should be exercised pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 to permit an extension of time for Mr Luu to lodge his applications to have his claims for compensation for injury claimed to have been sustained at work, heard.

The relevant legislation in this matter is the AAT Act, in particular, section 29(7) which reads:

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.

EVIDENCE BEFORE THE TRIBUNAL

Now as to the evidence before the Tribunal. The Tribunal had before it documents lodged pursuant to section 37 of the AAT Act, the T-documents, and the following exhibits.  The affidavit of Mr Luu of 2 April 2003 was exhibit A1.  T documents N2003/302 were exhibit R1.  The T documents N2003/283 were exhibit R2.  A letter of the applicant to the respondent, 3 February, was exhibit R3, and the submissions of the respondent, exhibit R4.

The applicant gave oral evidence before the Tribunal and his affidavit was before the Tribunal.  Rather than reciting his evidence, I have for purposes of this decision, included Mr Luu's evidence in my consideration of the indicia I needed to take into account in making the decision whether to exercise the discretion to allow the extension of time. 

SUBMISSIONS AND CONCLUSIONS

Now to the submissions and conclusions. 

I have been guided by the decided case law and of course the legislation to consider whether the discretion to permit an extension of time for Mr Luu to lodge his application to the AAT should be granted pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975. In doing so, I was mindful there is a large body of case law with regard to the discretion to extend time.

The principles to be taken into account have been enunciated clearly in cases such as Hunter Valley Developments Pty Ltd and Others v The Minister for Home Affairs and Environment and Re Mulheron v The Australian Telecommunications Corporation, a 1991 decision of the then President of the Tribunal, Justice O'Connor.  I'm not giving the full citations of cases because this is an ex tempore decision. 

Mr Burwood also referred me to the case of Pulitano v Telstra, an AAT case decided by Senior Member Barbour as he then was.  There is nothing in that decision which provides any different principles from those in the previous two decisions that I mentioned. 

I note also that Ms Henderson prepared very helpful written submissions citing case law. 

Now, Mr Burwood submitted that the Act should be construed liberally and in the applicant's favour.  Ms Henderson, on the other hand, submitted that the only time when the Act could be construed liberally was where uncertainty as to a particular provision of the Act arose, which she pointed out was not in issue in the present case. 

I was mindful that workers compensation legislation is beneficial legislation and I am mindful that this was recognised by the Tribunal and specifically emphasised in Justice O'Connor in Re Young v Telstra Corporation in 1993.  In Re Young her Honour affirmed that both the Administrative Appeals Tribunal Act 1975 and the Safety Rehabilitation and Compensation Act 1998 was beneficial legislation.  Her Honour stated at 309:

In terms of the time limit  provided under section 62(3)(b) of the Act there is a discretion to extend time to the applicant at any time before or after the time limit has expired.  It seems to me that this is  indicative of parliament's intention to facilitate access for review for the applicant and reflects the beneficial nature of the policy underlying the Act.  Time limits can also be construed as being a benefit to the applicant as well as to the respondent in that they help to ensure the process of reconsideration takes place in timely fashion and that the applicant moves as quickly as possible through the procedural stages.

In reviewing the indicia for the favourable exercise of the discretion to grant an extension of time to apply for review and applying the authorities as appropriate, I was mindful that, a priori, time limits are set legislatively for an orderly conduct of public affairs and so as not to disadvantage either party.  Time limits in this case have been exceeded and so I was mindful of the other considerations I had to take into account in coming to a decision.

These principles are set down in Hunter Valley (supra), and many other cases.  They are as follows: 

·     whether there was an acceptable explanation for the delay;

·     whether a grant of an extension of time would be fair and equitable in the circumstances;

·     any prejudice to the respondent which may result from the delay or indeed if the discretion to extend time were exercised;

·     the merits of the application and

·     considerations of fairness as between the applicant and other persons in like positions, taking the wider public interest into consideration. 

I turned then to consider the submissions commencing with the considerations regarding an acceptable explanation for delay. 

Mr Burwood submitted that Mr Luu filled in a form the day of the first incident on 5 October 1999 and implied he had been following through ever since.  Mr Luu's evidence, he said, as given orally, and in his affidavit, exhibit A1 was that he had given the form to his supervisor on the day of the incident and that any delays had been those of the respondent. 

Mr Burwood submitted further that Mr Luu had then suffered another injury on 13 September 2000, and that liability was first accepted, but that after the denial of liability by the respondent on 11 December 2001, Mr Luu had contacted Hancock Solicitors.  Meanwhile there had been an interview with Mr Nicholson at which a union representative had also been present. 

Mr Luu's evidence had been that after the interview he had rung his solicitor Mr Nguyen at Hancock's and that he had been told to wait for the solicitor's call.  He submitted that the wait took Mr Luu till July 2002 when Mr Nguyen again called and ultimately told Mr Luu he could not take it further.  The documents were then returned to Mr Luu on 6 August 2002.  Mr Luu's evidence was that he then sought legal advice from Constan Lawyers who arranged for him to attend for a medical appointment.  However, Mr Luu said that he did not agree with the costs agreement they wanted him to sign, so he left Constan Lawyers to consult his present solicitors at Bryden's Law Office on 4 October 2002. 

There was then the appointment with, and report of Dr Selby Brown, orthopaedic surgeon of 16 December 2002 which is at T83 of exhibit R1.  Mr Burwood submitted that no further time was lost, and the application to the AAT was made on 6 March 2003. Ms Henderson, relying on Comcare v Ahearn (supra) submitted that the explanation for delay was not a precondition for exercise of the discretion and grant of the extension of time.

Ms Henderson submitted that Mr Luu who is articulate in English and wrote a very articulate letter to the respondent dated 3 February 2000, which is exhibit R3 before the Tribunal, filled in a P400 form the day of the first injury, October 5 1999, but that that was simply an incident notification form and not a compensation claim.  She submitted that after the first decision to deny liability was given on 16 February 2000 Mr Luu did nothing; he rested on his rights.  He was informed of the right to appeal to the AAT in the reviewable decision and there was no indication he did not know what to do, neither that he misunderstood the processes. Yet he did nothing, she submitted. 

Ms Henderson addressed the chronology of events, referred to the interview with Mr Nicholson at which the union representative was present, and at which Mr Luu was told of his rights of review.  Again he did nothing, she submitted. 

I took into account the submissions made and the evidence of Mr Luu in regard to his actions.  I am mindful that, a priori, time limits are set legislatively for an orderly conduct of public affairs and so is not to disadvantage either party.  I accept also that there is a discretion to allow an extension of time. 

I accept that Mr Luu injured himself at work on 5 October 1999 notwithstanding that that may have been an aggravation of a constitutional condition.  It seems to me he reported it promptly on that day, filled in a P400 incident form, and later applied for compensation.  When shown the compensation application form on page 3 of exhibit R2 Mr Luu said that that was not his handwriting.  I accepted that evidence.

What occurred later was two reviewable decisions were made after a process of application, a decision in refusal, and a reconsideration.  So the reviewable decisions were 16 February 2000 and 11 December 2001.  The first was in regard to the injury of 5 October 1999 and the other in regard to a further injury or aggravation of 13 September 2000.  I do not consider that Mr Luu rested on his rights.  He provided medical certificates which were in the T-documents.  He attended rehabilitation and he consulted lawyers in the order submitted by his council. 

I find the respondent was aware from time to time that Mr Luu was not happy and would be seeking review.  There is authority for the proposition also that the sins of legal practitioners not be vested upon their clients.  There is no doubt there was some delay by the legal practitioners.  I was mindful that the explanation for delay is not the only test to be taken into account, but I find Mr Luu succeeds on that count. 

I moved next to consider prejudice to the respondent. 

Mr Burwood submitted there would be no prejudice to the respondent because there were medical certificates available. Mr Luu had attended rehabilitation and there was no evidence, medical information was not available.  He submitted the respondent knew during the intervening periods that Mr Luu would be making a claim.  He referred to the vesting of the delays of solicitors on their clients as inappropriate. 

It was no surprise that Ms Henderson did not agree with those submissions.  She referred to the dimming of memory over time, even the applicant, she indicated, by reference to Dr Selby Brown's report.  There the doctor had recorded information from Mr Luu about the September 2000 injury, but recorded, no doubt, as a result of information proferred by Mr Luu that prior to 13 September 2000 Mr Luu had not had any back of lower limb symptoms.  That of course was incorrect as the Tribunal had evidence before it of claims with regard to an injury of October 1999. 

Ms Henderson also referred to the difficulties of assembling medical information and tracking Mr Luu's other ailments such as gout or gouty arthritis.  I considered the prejudice factor in light of the years which had passed before Mr Luu applied for review.  I was mindful there were medical reports in the T- documents, and that Mr Luu had undergone rehabilitation.  He had medical certificates in the T-documents, and he had attended his doctor immediately after the injury of 5 October 1999.  I did not have evidence before me that files and records had been lost or destroyed, and considered that any prejudice to the respondent in obtaining information could be overcome. 

I move then to consider the other indicia, the next being disruption to established practices. 

Mr Burwood did not make specific submissions on this head, but Ms Henderson, with her usual thoroughness, cited case law with regard to certainty and efficient use of resources.  The cases, in particular, were Re Petrou v Australian Postal Corporation, Brisbane South Regional Health Authority v Taylor, as well as Lucic v Nolan.  She submitted the respondent thought the matter was over; the decisions had been made because there had been no timely appeal.

I considered any disruption to the efficient running of the respondent's business affairs, and the costs to the community of a late appeal such as this.  On balance I did not think it was excessive as the records would not be too hard to retrieve and certain medical records and reports of Dr Pierides, Gliksman and others were in the T-documents. 

I then moved to consider the merits of the substantial application. 

Mr Burwood submitted the legislation required a liberal application and relied on behalf of the applicant on Dr Selby-Brown's report.  Ms Henderson submitted that the central issue was a degenerative condition, a constitutional condition of the application, who might suffer aggravations from time to time, but that this case did not concern a frank injury.  She referred to various documents in support of the argument that the merits argument did not come up in favour of the applicant.

I considered the Tribunal's position.  One is always in a difficult situation in considering the merits in an application for an extension of time because one does not have the opportunity of testing much of the evidence or obtaining any other medical evidence.  However, on balance it is possible that Mr Luu has a claim for aggravation.  His compensation claim is not without merit, and accordingly, I find for him on that head.

I noted Ms Henderson's submission that Harris v Moore stands for the proposition that it is proper for the Tribunal to set that matter to one side in appropriate circumstances. 

As to the fairness of granting the extension of time between the applicant and other persons, Mr Burwood did not make submissions under this head, but Ms Henderson pointed out that it was necessary to compare the rights of those who lodged timely applications, and that, accordingly, the application should be rejected.

I did not think that this was a unique situation, although I could not commend commencing actions out of time.  However, given the delays which were not of Mr Luu's making, as detailed above, and noting that the discretion is exercised carefully and from time to time, I did not think fairness to others would be prejudiced if Mr Luu's application for extension of time were granted.

DECISION

Accordingly, taking into account all of the indicia, I find the application of Mr Chi Hoa Luu for extension of time to be granted pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 to make an application to the AAT is granted.