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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 9
Decision Date: 11 January 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for an extension of time by the Applicant, Mr. Makings, in relation to a compensation claim against K & S Freighters Pty Ltd. The Applicant sought to review a decision made on 1 September 2015, which declined liability for a "frank injuries" claim. The application for review was lodged approximately 19 months out of time.

The primary legal issues before the Tribunal were to identify the specific decision under review, determine whether the application was made outside the statutory time limits, and if so, whether the Tribunal's discretion to extend time should be exercised. The Tribunal also considered whether there were any other grounds upon which the application should be allowed to continue.

The Tribunal reasoned that the application was indeed out of time and that the Applicant's explanation for the significant delay was unsatisfactory, particularly given his access to legal advice. While acknowledging some prospects of success for the "frank injuries" claim and the existence of alternative avenues for compensation, the Tribunal found that the lengthy delay and the Applicant's conduct, including periods of non-communication, caused significant prejudice to the Respondent. The Tribunal applied the principles established in cases such as *Telstra Corp Ltd v Hannaford* and *Brisbane South Regional Health Authority v Taylor*, emphasising that the discretion to extend time should only be exercised where justice between the parties and the broader legal system is best served.

Ultimately, the Tribunal concluded that it would be inappropriate to exercise its discretion to extend the time for the application. Consequently, the application for an extension of time was refused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Consequently, I find that this factor weighs against the granting of an extension of time.Conclusion: Extension of Time 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. 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. 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 I will now proceed to dealing with the other submissions of the Applicant, particularly those detailed in paragraphs 15(b) and 15(c) above. 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.

Ratio Decidendi

Legal Principle Established

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?CONSIDERATIONWhich Decision is Under Review? 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. 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. 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. 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.