Makings and K & S Freighters Pty Ltd (Compensation)

[2018] AATA 9

Makings and K & S Freighters Pty Ltd (Compensation) [2018] AATA 9 (11 January 2018)

Division:GENERAL DIVISION

File Number(s):      2017/3769

Re:Luke Makings

APPLICANT

AndK & S Freighters Pty Ltd

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:11 January 2018

Place:Brisbane

The application for an extension of time pursuant to s 29(7) of the AAT Act is refused.

.........................[sgd]...............................................

Senior Member Theodore Tavoularis

CATCHWORDS

EXTENSION OF TIME – where application for review was some 19 months out of time – Hunter Valley factors – where delay was lengthy – where Applicant failed to provide convincing explanation for the delay – where there are some prospects of success – where there are alternate avenues of relief – where there is a significant prejudice to the Respondent – frank injury claim – scope of application to extend time –scope of discretion to extend time – whether additional factors should be considered – extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 29
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 14, 64, 65

CASES

Brisbane South Regional Health Authority v Taylor

(1996) 139 ALR 1

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment

(1984) 3 FCR 344
Lees v Comcare (1999) 56 ALD 84
Secretary of the Department of Social Security v Van Den Boogaart [1995] FCA 1289
Szabo v Comcare [2012] FCAFC 129

Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253

REASONS FOR DECISION

Senior Member Theodore Tavoularis

11 January 2018

INTRODUCTION

1. Mr Luke Makings (“the Applicant”) seeks an extension of time to the date for filing a certain application for review of a compensation decision made by K & S Freighters Pty Ltd (“the Respondent”).

2. The Applicant alleges that he suffered a lower back injury in the course of his employment with the Respondent on 25 May 2015.

3. Stated in short compass, the Applicant’s injury on 25 May 2015 has been subject to a number of claims for compensation from his employers that have been agitated to this Tribunal. Those claims are as follows:

   (a)Tribunal Application 2016/1216

   -    In this Application, the Applicant was appealing a reviewable decision dated 1 September 2015, denying liability for his injury;

   -    It appears that this claim related to the “frank injury” hypothesis proposed by the Applicant;

   -    The Application was lodged on 8 March 2016, some 129 days out of time, and 189 days from the date of the reviewable decision; and

   -    No extension of time was sought and this Application was dismissed on 12 April 2016.

   (b)Tribunal Application 2017/3768

   -    In this Application, the Applicant was appealing a reviewable decision dated 6 June 2017, denying liability for his injury;

   -    It appears that this claim related to the “nature and conditions injury” hypothesis propounded by the Applicant;

   -    This Application was lodged on 22 June 2017, and so was within time; and

   -    This Application is now proceeding through the Tribunal’s pre-hearing stages and is moving towards a final hearing.

   (c)Tribunal Application 2017/3769

   -    In this Application, the Applicant was appealing a reviewable decision dated 1 September 2015, denying liability for his injury. I note that this is the same decision as was under review in Tribunal Application 2016/1216;

   -    This claim again related to the “frank injury” hypothesis propounded by the Applicant;

   -    The Application was lodged on 22 June 2017, making it some 19 months out of time; and

   -    The Applicant now requests an extension of time. It is that request which is now before the Tribunal for determination.

4. It is clear that, for the Applicant, the present case (i.e. Tribunal Application 2017/3769) is particularly important because he fears being rendered unable to make both a “frank injury” claim and a “nature and conditions” claim against the Respondent. As counsel for the Applicant appropriately noted in his oral submissions at the interlocutory hearing of this matter, the Full Court of the Federal Court in Szabo v Comcare [2012] FCAFC 129 (“Szabo”) limited the circumstances in which a “nature and conditions” claim can be read into a “frank injury” claim and, presumably, vice versa. Thus, should an applicant seek to agitate for both classes of claim, they would be prudent to lodge separate claims for each class, lest the principles in Szabo operate to restrict the scope of one of the claims.

5. There is no question that the Applicant’s “nature and conditions” claim was properly lodged, and thus there is no issue with the validity of Tribunal Application 2017/3768. It will be heard by the Tribunal in due course. The present issue arises with respect to the “frank injury” claim.

6. This claim was lodged on 1 June 2015, and subject of a determination dated 1 July 2015, denying liability. The Applicant appealed, but the determination dated 1 July 2015 was affirmed in a reviewable decision dated 1 September 2015. On 8 March 2016 – in excess of four months after the time limit for lodging a review with the Tribunal had expired – the Applicant lodged an application to review the reviewable decision dated 1 September 2015 with the Tribunal (“Tribunal Application 2016/1216”). Notably, the Applicant did not lodge an application for an extension of time and so this application was dismissed by the Tribunal on 12 April 2016.

7. On the evening of Friday, 10 June 2016, the Applicant’s solicitors emailed the Respondent, stating:

   I have in fact requested further medical opinion and I think the appropriate course is that I serve that evidence and provide you with an opportunity to reconsider your decision before we proceed with a claim in the AAT.[1]

   [1] Exhibit 6, T 34, p 115.

8. The Respondent replied on 14 June 2016:

   In our opinion there is nothing further to reconsider and while you may wish to provide further information that you feel will assist Mr Makings, the process of review has already been carried out and as you would know the next step was to lodge an appeal with the AAT.[2]

   [2] Ibid.

9. While this correspondence may seem rather inconsequential, counsel for the Applicant has pressed its significance. His reason for doing so, and my consideration of this correspondence, is elucidated upon below.

10. After seeking to amend his “frank injury” claim to include a “nature and conditions” claim,[3] the Applicant lodged a second claim for compensation relating to his “nature and conditions” claim on 25 May 2017.[4] On 30 May 2017, the Respondent made a determination, denying liability for this claim.[5] The Respondent affirmed that determination in a reviewable decision dated 6 June 2017.[6] It is this reviewable decision that is subject to Tribunal Application 2017/3768.

    [3] Ibid, T 35, p 118.

    [4] Ibid, T 36, pp 141-154.

    [5] Ibid, T 37, pp 155-158.

    [6] Ibid, T 39, pp 160-163.

11. For the sake of completeness, I note that the Applicant has, for the duration of this process, been consistently and continuously seeking medical reports and other medical information on his condition.[7]

    [7] Exhibit 3, Affidavit of L Julian Beal with attachments.

    THE APPLICANT’S CONTENTIONS

12. The Applicant makes two submissions. First, that there is sufficient material before the Tribunal to warrant exercise of the discretion to extend time. Secondly, despite the filing and ventilation of this application, there may in fact be “…no need for such application in light of the evidence in this case.”[8]

    [8] See Exhibit 1, [1].

13. With respect of this first submission, the Applicant relied on the affidavit of the Applicant’s solicitor, and submitted that that affidavit and its annexures:

    1“Leave no doubt that there is a prima facie case; in fact it is overwhelming”;

    2The explanation for any delay is “…transparent on the chronology [appearing in the solicitor’s affidavit] and in those terms is acceptable.”;

    3Confirm “The Respondent suffers no prejudice in any form.”

14. The further point made by the Applicant is that the Respondent has not put any evidence before the Tribunal that would contradict any of the abovementioned conclusions and, in those circumstances, the extension of time should be granted.[9]

    [9] Exhibit 1, [7].

15. The core of the Applicant’s second submission, as I understand it, was thus:

    (a)On 11 May 2017, the Applicant sought to amend the original claim to further allege a “nature and conditions” claim, in addition to the “frank injury” claim that had previously been considered. In a new reviewable decision dated 6 June 2017, the Respondent only considered the amendments to this claim (i.e. the “nature and conditions” component), and failed to reconsider the “frank injury” elements of the claim, even though it was under an obligation to do so. In light of this failure, the Respondent’s opposition to an extension of time, which would allow the litigation of the “frank injuries” claim presently before the Tribunal, would “deprive the Applicant of access to a just and fair determination”.[10]

    (b)On 10 June 2016, the Applicant requested a further review of the determination dated 1 July 2015, which was refused in an email dated 14 June 2016. This refusal breached the Respondent’s “evolving obligation to consider matters put before them… in the absence of that obligation being fulfilled all matters are up for grabs on any future determination.”[11] Therefore:

    (i)There “is no impediment to proceeding with the Application previously sought to be agitated”; or

    (ii)The “Respondent’s refusal to reconsider provides grounds for the Tribunal to grant an extension of time to enable review of the operative determination”.[12]

    (c)As a result of the Respondent’s two failures to reconsider the “frank injuries” claim, even if an extension of time is not granted, the failure of the Respondent to reconsider this claim means “everything is up for grabs”, so, in order to do fairness between the parties, the present application should proceed.[13]

    [10] Exhibit 1, [9]-[12].

    [11] Ibid, [13]-[14].

    [12] Ibid, [17].

    [13] Ibid, [18].

    ISSUES

16. While the Applicant’s second submission raises some interesting points, the crucial one for present purposes is which decision the Applicant actually seeks to be reviewed in this application to the Tribunal. The Applicant’s submissions have pointed to two decisions, in addition to the reviewable decision dated 1 September 2015, which enlivens the Tribunal’s jurisdiction to determine the Applicant’s “frank injury” claim. While the Applicant has suggested some interesting consequences with respect of the extension of time issue that might arise from this – seemingly relying on the Federal Court’s decisions in Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 and Lees v Comcare (1999) 56 ALD 84 – it is important for the Tribunal not to get ahead of itself: there is a very real risk of jurisdictional error or the Tribunal acting ultra vires, should I deal with purported decisions that are not the subject matter of Tribunal Application 2017/3769.

17. In light of the above, in order to shed light on – and properly manage – this matter, the Tribunal must, to my mind, answer three core questions:

    (a)What is the decision under review in Tribunal Application 2017/3769?

    (b)Was this application made outside the statutory time limits for appeal, and if so, should the Tribunal’s discretion to extend the time for making an application for review be enlivened?

    (c)Are there any other grounds on which the present application should be allowed to continue?

    CONSIDERATION

    Which Decision is Under Review?

18. While it appears from the Applicant’s submissions that his legal team considers the decision under review to be merely any rejection or refusal to reconsider his “frank injuries” claim, the Tribunal neither can nor should be so imprecise.

19. Under s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), the Tribunal may review a decision where review of that decision is provided for by an enactment. In the case of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”), s 64(1) relevantly provides that a claimant may make an application to the Tribunal for review of a reviewable decision made under the auspices of the SRC Act. I note, importantly, that s 64(1) of the SRC Act refers to “review of a reviewable decision” (my emphasis). As a result of this, I place some emphasis on the fact that the plain, ordinary meaning of the words contemplates a single review being referable to a single reviewable decision, not multiple reviewable decisions. The Full Court of the Federal Court in Telstra Corp Ltd v Hannaford (2006) 151 FCR 253 (“Hannaford”) held that where a number of decisions in relation to one person were made under the SRC Act, the Tribunal could revisit them up to the original decision accepting liability. However, I note that the Court in Hannaford was not dealing with multiple claims under s 14 of the SRC Act. Rather, the Court had before it some four claims for compensation after liability under s 14 had been accepted. I consider this distinction to be significant.

20. Under s 29(1)(a)(i) of the AAT Act, such an application must be in writing, and under s 29(1)(c), it must contain a statement of why the application is being lodged.

21. The natural starting place for consideration of which decision is presently under review is the Applicant’s own Application for Review form – timeliness issues notwithstanding, it otherwise satisfies the requirements to be a valid application for review. On this form, the Applicant listed the date the decision was made as “01/09/2015”, and attached the Respondent’s reviewable decision dated 1 September 2015. That decision declined liability for the “frank injuries” claim, and was the subject of Tribunal Application 2016/1216. I note that no other reviewable decision is mentioned on this form. Consequently, unless there is a good reason to displace my presumption, I presume that it is the reviewable decision dated 1 September 2015 that is subject to this review.

22. Another contender for the reviewable decision subject to review is the reviewable decision dated 6 June 2017, denying liability for the “nature and conditions” claim.[14] The Applicant contends that the genesis of this reviewable decision was the Applicant’s letter of 11 May 2017, which sought to amend the Applicant’s original claim to include a “nature and conditions” claim.[15] However, I note that the Applicant submitted an independent claim form on 25 May 2017.[16] The Applicant contends that the Respondent’s failure to consider his “frank injury” claim in this reviewable decision is an issue.[17] Regardless, the Respondent’s reviewable decision dated 6 June 2017 is subject to Tribunal Application 2017/3768, which was instigated by an application for review lodged by the Applicant on 22 June 2017.[18] As that reviewable decision is subject of an ongoing review by this Tribunal, separate to the present review, it obviously cannot be the decision which is under review in Tribunal Application 2017/3769.

    [14] Exhibit 6, T 39, pp 160-163.

    [15] Exhibit 1, [9]; Exhibit 6, T 35, p 118.

    [16] Exhibit 6, T 36, pp 141-154.

    [17] Exhibit 1, [11].

    [18] Exhibit 6, T 2, pp 3-4.

23. The other possible “decision” which may be subject to Tribunal Application 2017/3769 is the Respondent’s email of 14 June 2016, refusing to make a further reviewable decision on the “frank injuries” claim. Assuming for a moment that this email constitutes a reviewable decision (although I stress that I make no finding on this point), as far as I can see, it was first mentioned by the Applicant to the Tribunal by counsel for the Applicant in his submissions dated 25 October 2017.[19] I do not consider this as satisfying all the form requirements of s 29 of the AAT Act, particularly not s 29(1)(c). As no real application has been made for review of this possible decision, I need not consider it further – it cannot be the decision under review in Tribunal Application 2017/3769.

    [19] See Exhibit 1, [13]-[17].

24. Consequently, of the three possible decisions referred to by the Applicant, the only one which can validly be construed as the basis of Tribunal Application 2017/3769 is the one mentioned on the Application for Review form: the reviewable decision dated 1 September 2015. I do not consider that all the possible “frank injury”-related decisions should be treated together. For the purposes of Tribunal Application 2017/3769, then, I will only concern myself with consideration of whether the Applicant should be allowed to continue to agitate for review of the Respondent’s reviewable decision dated 1 September 2015.

    Should an Extension of Time be Granted?

25. I now turn to the question of whether an extension of time should be granted. Before addressing the substance of this issue, it is important to establish the legal framework within which it is to be considered.

    Legal Framework

26. Section 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) makes it abundantly clear that an application for review of a reviewable decision must be lodged within 28 days of an Applicant receiving notice of that decision.

27. The Tribunal has power, pursuant to s 29(7) of the AAT Act to extend that 28 day period if the Tribunal is satisfied it is reasonable to do so in all the circumstances.

28. The governing authority setting out the factors to be considered in exercising that discretion is Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 (“Hunter Valley”). In that case, it was noted that the default position is that proceedings should not be commenced outside the prescribed time. However, that position is not set in stone: the discretion to allow an extension of time may be exercised after consideration of a number of factors.

29. Summarised concisely, those five factors comprise:

    (a)The actual length of the delay;

    (b)The Applicant’s awareness of his appeal rights and any explanation he may have for the delay;

    (c)The Applicant’s prospects of success in any review or appeal of the reviewable decision were the extension of time to be granted for doing so; and

    (d)Does the Applicant have alternate avenues of relief if an extension of time is refused?

    (e)What prejudice would the Respondent suffer, and what other unfairness would occur, were an extension of time granted?

30. I will now address each of these factors in turn.

    Factor 1: Length of Delay

31. As stated above, the decision the Applicant seeks review of was made on 1 September 2015. The time limit for lodging appeals of reviewable decisions under the SRC Act is 60 days,[20] but the Applicant only lodged the present appeal on 22 June 2017. Thus, this application is some 19 months out of time. This delay is, in my view, sufficiently lengthy for this factor to weigh against the grant of an extension of time.

    [20] Safety, Rehabilitation and Compensation Act 1988 (Cth), s 65(4).

    Factor 2: Awareness of Appeal Rights and Explanation for Delay

32. At the interlocutory hearing in this matter, counsel for the applicant relied on the affidavit of the Applicant’s solicitor, Mr Beal, to explain the length and nature of the delay. In particular, he drew the Tribunal’s attention to the following two paragraphs:

    11On 11 September 2015 the Applicant instructed me that he was still under treatment and was hopeful that his condition would be self-limiting and he would be able to return to remunerative employment.

    12On 11 February 2016 the Applicant instructed me that his condition had not improved and in the circumstances he wished to proceed with a compensation claim against the Respondent.

33. Counsel for the Applicant used these paragraphs to explain that the Applicant did not initially pursue or appeal his claim because he believed that he would shortly be able to return to work. It was only when, after five months, the Applicant’s condition did not improve that the Applicant asked for his case to be picked up once more. Mr Beal’s affidavit also discloses that the Applicant received and sought a number of medical reports throughout 2016.

1. The Respondent, meanwhile, contends that the “affidavit does not explain the delay in lodging an application for review of the initial reviewable decision within the 60-day period”.[21]

   [21] Exhibit 5, [2].

2. With respect, I have difficulty accepting the veracity of the Applicant’s submissions. None of the Applicant’s actions, particularly seeking medical reports, are mutually exclusive with lodging an appeal with the Tribunal. The gathering of more information and better reports is a regular feature of applications conducted in this specific paradigm of the Tribunal’s jurisdiction. I accept that the Applicant may have hoped his condition was self-limiting. However, that does not preclude him from lodging a claim. I therefore do not consider this a particularly compelling explanation for the extraordinary delay.

3. I find this explanation particularly odd in circumstances where the Applicant has been acting with legal advice or representation since before the reviewable decision of             1 September 2015 was made. While he did not formally retain Mr Beal until   29 February 2016,[22] Mr Beal had his first meeting with the Applicant on 8 July 2015.[23] Thus, the Applicant has had legal representation or at least access to legal advice for the overwhelming majority of the time since his injury allegedly occurred. In those circumstances, one would have expected that the Applicant’s legal advisers would have either known themselves or impressed upon the Applicant the importance of complying with time limits for lodging appeals.

   [22] Exhibit 3, [13].

   [23] Ibid, [5].

4. The Federal Court (per Kiefel J – as she then was) has provided guidance as to how a decision maker is to assess the credibility of any explanation for delay.[24] In that case, Kiefel J said:

   The matter which most strongly weighs against the grant of an extension of time is the lack of a satisfactory explanation for the delay. The fact of any explanation which appears credible does not suffice… The absence of detail in the explanation suggests that a view may have been taken that, so long as some explanation was made and the respondent did not assert prejudice, the Court would automatically grant the extension. Such a view, if held, could of course disregard the discretion to be exercised by the Court and the level of satisfaction it requires.

   [24] Secretary of the Department of Social Security v Van Den Boogaart [1995] FCA 1289 at [7].

5. I am confident that the Applicant was aware of his review rights because he had previously lodged an application to review the reviewable decision of 1 September 2015 with the Tribunal. That application, too, was out of time – indeed, it was dismissed for precisely that reason.

6. On the basis of the above, I am inclined to accept the Respondent’s perspective on the explanation for a delay, with one important nuance: while Mr Beal’s affidavit does disclose some explanation for the delay, that explanation is not adequate and certainly does not lend itself to justifying a 19-month delay. Consequently, I find that this again weighs against the granting of an extension of time.

   Factor 3: Prospects of Success were an Extension Granted

7. I now turn to discussing the Applicant’s prospects of success were an extension of time granted. In particular, I note that this refers to his prospects of success in the “frank injury” claim, which is the subject matter of this case.

8. Counsel for the Applicant submits that the Applicant’s prima facie case is “overwhelming”. In particular, he pointed to the reports of Dr Timothy Siu, Professor Laurence McEntee and Mr Matthew Smith, a chiropractor, as providing crucial evidence substantiating the Applicant’s case.[25] I will address the evidence of each of these medical practitioners in turn.

   [25] Exhibit 1, [7].

9. Dr Siu, a neurosurgeon, prepared a report for the Applicant on 29 March 2017. Relevantly, he said:

   8I understand Mr Makings worked as a truck driver. Conceivably this would involve prolonged sitting and some weight lifting. This line of work is well recognised to cause excessive axial loading to the lumbar spine and contribute to lumbar disc disease.

   9As lumbar disc disease is very common and is not confined to a particular occupation, it is possible that Mr Makings could sustain the same injury from other activities, including those outside work. However it is likely that his work as a truck driver would aggravate any pre-existing injury.[26]

   [26] Exhibit 3, Annexure H.

10. Professor McEntee prepared a report at the prompting of the Applicant’s solicitors on 17 October 2016.[27] It is worthwhile quoting in full the question posed to Professor McEntee, as well as his answer:

    Will you kindly advise whether, on the balance of probabilities, you consider that our client suffers:

    a)    A disease that was contributed to, to a significant degree, by his employment by K&S Freighter; Or

    b)    An aggravation of a disease that was contributed to, to a significant degree, by his employment by K&S Freighters; Or

    c)    An injury arising out of, or in the course of, his employment by K&S Freighters; Or

    d)    An aggravation of an injury arising out of or in the course of his employment by K&S Freighters, whether or not the injury arose out of or in the course of that employment.

    The aetiology of degenerative disc disease is multifactorial. Genetic and environmental factors play a role. Environmental factors include one’s employment. Certainly, a heavy manual job that involves heavy lifting, repetitive bending and sitting in one spot for long periods of time would contribute to the development/progression of degenerative disc disease. I consider that the condition he developed at work to be an aggravation of underlying degenerative disc disease that was contributed to by his employment at K&S Freighters.[28]

    (Bolding in the original; my underlying)

    [27] Exhibit 3, Annexure G.

    [28] Ibid, 4.

11. In a report dated 8 July 2015 and attached as Annexure A to Mr Beal’s affidavit, Mr Smith stated:

    Luke presented in this Chiropractic Clinic on the 23^rd July 2014 complaining of Lumbosacral pain and right sided sciatic pain which came on after driving in the truck for hours.

    …

    Luke presented again with severe sciatic pain on the 29^th May 2015 which had come on while driving in the truck on 24^th May 2015 (Sunday).

    Driving in the truck was the original cause of sciatic pain and later the same cause of this severe onset of sciatic pain.[29]

    [29] Exhibit 3, Annexure A.

12. Conversely, the Respondent submits that the medical evidence provided by the Applicant focuses on the “nature and conditions” claim, as opposed to the “frank injury” claim, which is the subject of this case.[30] The Respondent further points to a report of Associate Professor Peter Steadman,[31] an orthopaedic surgeon, who examined the Applicant and concluded that “the back pain is not the result of a work related issue but represents an underlying constitutional progressive condition”.[32] Associate Professor Steadman further noted that he could not “ascertain a specific work related event which would suggest that there were circumstances that had caused the back pain”.[33]

    [30] Exhibit 5, [7].

    [31] Ibid.

    [32] Exhibit 6, T 27, p 78.

    [33] Ibid.

13. Having regard to the balance of the aforementioned medical opinion, I cannot conclude that the Applicant’s prima facie case is “overwhelming”, as his counsel submitted. Rather, Dr Siu and Professor McEntee’s reports in particular are equivocal and go significantly further in supporting a “nature and conditions”-type claim than they do a “frank injury” claim. Mr Smith’s report, meanwhile, does serve as evidence supporting the proposition that the Applicant suffered a frank injury. Associate Professor Steadman further muddied these waters by totally rejecting the suggestion that there was any link between the Applicant’s work and his back issues.

14. Looking at the totality of these medical reports, I find that they are sufficient to show that the Applicant has a prima facie case. While his prospects of success are not “overwhelming”, they certainly are extant.  This factor therefore lends some weight to the proposition that the Applicant’s time for lodging an appeal should be extended.

    Factor 4: Alternate Avenues of Relief

15. I will now turn to determining what alternate avenues of relief are open to the Applicant.

16. Counsel for the Applicant submitted that the Full Court of the Federal Court’s decision in Szabo has the effect that, should this claim not proceed, the “frank injury” claim will no longer be able to be run.

17. Counsel for the Respondent, meanwhile, suggested at the hearing that the Applicant’s “frank injury” claim had been overwhelmed by the “nature and conditions” claim, and so if the Applicant is not successful here, he will still have alternate avenues for relief available to him.

18. I am inclined to favour the submissions of the Respondent on this point. Even if the Applicant is no longer able to run a “frank injury” claim, he will still have the capacity to run his “nature and conditions” claim, so the failure on the extension of time issue in this matter would not prevent him from recovering compensation for his back condition. However, while I make no finding on this point, I am not altogether satisfied that the Applicant would be rendered unable to pursue his “frank injury” claim by other means should an extension of time in this application not be granted. Rather, it seems to me that counsel for the Applicant, in his second written submission, pointed to two other avenues through which the “frank injury” claim could be reconsidered or reviewed.

19. On the balance, then, I find that there are alternate avenues of relief available to the Applicant. This factor then weighs against granting an extension of time.

    Factor 5: Prejudice to the Respondent or Other Unfairness

20. The Respondent pointed to a number of ways in which it would be prejudiced should an extension of time be granted. In particular, the Respondent submitted that:

    3The Respondent was entitled to assume at the expiration of the 60-day period from the initial reviewable decision, or at least from 10 June 2016 when the Applicant’s legal representative advised that the Review Application would not be pursued, and that the matter was finalised.

    4There is a general desirability for certainty and finality between parties. The Respondent was entitled to assume that there was certainty and finality in that the Applicant would not pursue the initial claim upon the expiration of the 60-day period following the making of the reviewable decision, and particularly on and from 10 June 2016. This is reinforced by the Applicant’s failure to advise the Respondent in June 2016 that the Applicant was about to undergo back surgery and thereby alerting the Respondent to the prospect that the Applicant may pursue the initial claim.

    5The Respondent is now prejudiced in engaging medical opinion to assess the initial claim, particularly with regard to the need for surgery.[34]

    [34] Exhibit 5, [3]-[5].

21. Conversely, the Applicant contended that “The Respondent suffers no prejudice in any form…”.[35]

    [35] Exhibit 1, [7].

22. I do not accept the Applicant’s contention. While I do not find that an almost two-year delay is sufficient to prejudice the Respondent in obtaining medical opinions, I do find that both the length of the delay, and the Applicant’s actions in respect of the delay, to have been substantially prejudicial to the Respondent. As McHugh J so aptly put it in the High Court authority of Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 (“Taylor“) at 9:

    ... people should be able to arrange their affairs and utilize their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.... The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.

23. In this context, I find that the Applicant has consistently conducted his “frank injury” claim in a manner that was prejudicial to the Respondent. His original application to the Tribunal, which was the subject of Tribunal Application 2016/1216, was already out of time, and dismissed after he – or his legal representatives – failed to apply for an extension of time. The Respondent would have expected that, even before that application was lodged, the “frank injury” claim had been finalised. The Applicant’s failure to apply for an extension of time and the subsequent dismissal of Tribunal Application 2016/1216, to my mind, would have been another clear indication to the Respondent that the Applicant’s “frank injury” claim was finalised. The Respondent further states that it received no communication from the Applicant about his “frank injury” claim for the 11 months between 10 June 2016 and 11 May 2017, after which time the Applicant sought to agitate for a “nature and conditions” claim, to be run in the alternate to his “frank injury” claim.[36] The Applicant now seeks to re-agitate the “frank injury” claim, some 19 months after the expiration of the time to lodge a review with the Tribunal, which includes 11 months of no communication between him and the Respondent regarding that claim. I can only find this manner of acting to be fundamentally contrary to the public interest, and necessarily prejudicial to the Respondent, were it to cause the Respondent to re-open a file it would have presumed to be finalised more than a year and a half prior, and re-organise its resources to manage that claim.

    [36] Exhibit 5, [S].

24. An additional factor I consider relevant is whether granting an extension of time to this Applicant would be fair to other persons, specifically applicants who have acted within time or prospective applicants who have decided not to bring actions because of the lapse of a time limit. It would, to my mind, be unfair to those other persons to allow time to be extended in circumstances where the primary reason for the Applicant’s delay is variously given as uncertainty in the mind of the Applicant or, more problematically, a desire to gather further evidentiary material before lodging a claim. Other applicants are not granted the luxury of having more than a year and a half after the expiration of a time limit to gather evidence and make up their minds. To allow it in this case, where those are the only real reasons provided for the delay, would simply be an injustice to those other persons.

25. Consequently, I find that this factor weighs against the granting of an extension of time.

    Conclusion: Extension of Time

26. In consideration of the above factors, I have reached the following conclusions. The Applicant had a “frank injury” claim that he could have run, with some prospects of success. However, these prospects are not by any measure “overwhelming”, as counsel for the Applicant asserted. Even though he was acting with legal advice from before the date of the reviewable decision, he has now applied twice to this Tribunal for review of the same reviewable decision, and each of those applications was out of time.[37] The present application is some 19 months – a considerable period of time – out of time. Although the Applicant has some explanation for this delay, that explanation is unsatisfactory, particularly in circumstances where the given reasons are not mutually exclusive with a review by the Tribunal, and the Applicant was acting at the very least with access to legal advice.

    [37] That being Tribunal Application 2016/1216 and Tribunal Application 2017/3769.

27. The delay of the Applicant and his conduct during the delay, including extensive periods of non-communication with the Respondent, are inherently prejudicial to the Respondent. This is particularly the case where the Applicant’s conduct at several points in time would have led the Respondent to assume the case was finalised. I have found that this prejudice is significant, particularly due to the length of the delay in lodging this application and the fact that a previous application to this Tribunal had been made, but then dismissed. Conversely, the prejudice to the Applicant of the rejection of his extension of time application is not great. It by no means would lead to him being unable to recover compensation for his alleged injuries. Rather, at the very least, he has a live “nature and conditions” claim before the Tribunal.

28. In consideration of all the above factors, I find that it would be inappropriate for me to exercise my discretion under s 29(7) of the AAT Act to extend the time for the making of this application.

    Other Asserted Grounds for Allowing the Present Case to Continue

29. I will now proceed to dealing with the other submissions of the Applicant, particularly those detailed in paragraphs 15(b) and 15(c) above.

30. Unfortunately for the Applicant, while the decision of whether or not to extend time is a discretionary one, that discretion is not unfettered. Although the Tribunal should of course seek to “do fairness and justice between the parties”,[38] the public interest and the rule of law demand that it does so in a consistent and rational manner.[39] Indeed, as noted by Dawson J in Taylor, the discretion to extend time “should only be exercised in favour of an applicant where, in all the circumstances, justice is best served by so doing.”[40] I take this to refer not only to justice between the parties, but justice as a fundamental principle of our legal system. If that is the case, it is especially important that the discretion to exercise time be exercised carefully and consistently.

    [38] Exhibit 1, [18].

    [39] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 639.

    [40] Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 at 2 per Dawson J.

31. Additionally, the Tribunal has no universal jurisdiction – it can only make decisions on matters validly brought before it. Thus, while counsel for the Applicant might consider that “it does not matter” whether the Tribunal applies the Hunter Valley factors, or uses some other, novel rubric to justify extending time, I cannot agree. To stray far beyond these factors, or the decision to which the present application is tied, and to contort the law to allow the Applicant to agitate his “frank injury” claim without a demonstrable legal basis for so doing would, to my mind, constitute a miscarriage of the Tribunal’s discretion, and most certainly would not be in the interests of justice. In any event, on the basis of my findings above, I am satisfied that justice, both on the whole and between the parties, is best-served by my refusal to exercise my discretion to extend time.

32. The question presently before the Tribunal is only whether time should be extended for the Applicant to lodge his appeal against the reviewable decision of the Respondent dated 1 September 2015. If the Applicant has qualms with the Respondent’s refusal or failure to determine the “frank injury” claim (or indeed any determination it made about that claim) at any juncture other than 1 September 2015, it is his responsibility to agitate those qualms in the proper forum. It is not the role of the Tribunal to facilitate ventilation of those qualms in the context of the present application to extend time to lodge an appeal against the reviewable decision made by the Respondent dated 1 September 2015.

33. In consideration of the above, I cannot find that there are any grounds outside the abovementioned Hunter Valley factors on which the Tribunal can exercise its discretion to extend time in the present application. Of those Hunter Valley factors, only one minimally favours extending the time. The balance of those factors do not warrant any exercise of the discretion to extend time pursuant to s 29(7) of the AAT Act.

    CONCLUSION

34. The application for an extension of time pursuant to s 29(7) of the AAT Act is refused.

I certify that the preceding 67 (sixty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

..........................[sgd]..............................................

Associate

Dated: 11 January 2018

Date of hearing:	27 November 2017
Counsel for the Applicant:	Mr Matthew Golan
Solicitors for the Applicant:	Mr Julian Beal of Firths Lawyers
Counsel for the Respondent:	Mr Joe Ferwerda
Solicitors for the Respondent:	Mr Damian Clarke of Clarke Legal