Mason and John Holland Pty Ltd (Compensation) - [2018] AATA 415

Mason and John Holland Pty Ltd (Compensation) [2018] AATA 415 (7 March 2018)
Division:GENERAL DIVISION
File Number: 2017/5122 and 2017/5123
Re:Edward Mason
APPLICANT

AndJohn Holland Pty Ltd
RESPONDENT

DECISION
Tribunal:Deputy President S Boyle
Date:7 March 2018
Place:Perth

The Tribunal refuses to grant the Applicant’s applications for an extension of time for review of the reviewable decisions both dated 9 December 2016.
...[sgd].....................................................................
Deputy President S Boyle
CATCHWORDS
Weekly incapacity entitlements – extension of time application – factors that are relevant when considering an application for extension of time – little chance of success – lack of explanation of delay - need to prevent disruption to established practices - application dismissed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 –ss 29(2), ss 29(7)
Safety, Rehabilitation and Compensation Act 1988 – ss 8(10) – s 19 – ss 62(1) – ss 65(4)
CASES
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brown v Federal Commissioner of Taxation [1999] FCA 563
Comcare v A’Hearn (1993) 45 FCR 441
Comcare v Simmons [2014] FCAFC 4
DHLD and Executive Director, Social Security Appeals Tribunal [2010] AATA 377
Dix v Crimes Compensation Tribunal [1993] 1 VR 297
Doyle v Chief of Staff (1982) 42 ALR 283
Federal Commissioner of Taxation v Brown [1999] FCA 1198
Federal Commissioner of Taxation v Salenger (1988) 19 FCR 378
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
John Holland Group Pty Ltd v Robertson [2010] FCAFC 88; (2010) 185 FCR 566
Lucic v Nolan (1982) 45 ALR 411
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
Re Veronica Lesley Johnson and Commonwealth of Australia; Commission of the Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 1
Smith and John Holland Pty Ltd [2013] AATA 73
Wedesweiller v Cole (1983) 47 ALR 528
Zizza v Federal Commissioner of Taxation [1999] FCA 848
REASONS FOR DECISION
Deputy President S Boyle
7 March 2018
THE APPLICATIONS

The Applicant has made applications in each of the matters for extensions of time to make applications for a review of two decisions made by the Respondent on 9 December 2016 being determinations on the Respondent’s own motion under s 62(1) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
MATERIALS BEFORE THE TRIBUNAL
The following material was before the Tribunal:
(a)applications for Extension of Time for Making an Application for Review of Decisions dated 9 December 2016 filed 6 September 2017;
(b)Applicant’s Outline of Submissions dated 14 November 2017;
(c)Applicant’s Further Submissions dated 18 December 2017;
(d)copies of reviewable decisions made by Respondent in relation to the Applicant’s entitlement to compensation under the SRC Act dated 9 December 2016;
(e)Respondent’s Notices of Opposing Applications for Extension of Time and Outline of Submissions opposing extension of time applications dated 27 September 2017;
(f)Respondent’s Supplementary Outline of Submissions dated 20 December 2017; and
(g)Respondent’s bundle of documentation relating to the extension of time application.
Directions…

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 415
Decision Date: 7 March 2018

CaseChat Overview and Summary

The matter before Deputy President Boyle concerned an application for an extension of time to seek review of decisions made by the Respondent concerning the Applicant's weekly incapacity entitlements under the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). The Applicant sought an extension of time in relation to a decision dated 9 December 2016, which recalculated his entitlements for an accepted "aggravation of osteoarthrosis ankle joint" condition. The Respondent had reconsidered its previous determinations, identified a comparable employee to assess Normal Weekly Earnings and Normal Weekly Hours, and applied section 8(10) of the SRC Act to reduce the Applicant's Normal Weekly Earnings due to the conclusion of available work.

The primary legal issue was whether it was reasonable in all the circumstances to grant the Applicant an extension of time to lodge his application for review. Under section 29(2) of the *Administrative Appeals Tribunal Act 1975* (AAT Act), applications for review are generally required to be lodged within 28 days of receiving notice of a decision, a period extended to 60 days by section 65(4) of the SRC Act. Section 29(7) of the AAT Act grants the Tribunal discretion to extend this time limit if satisfied it is reasonable to do so.

The Tribunal noted that the Applicant received the reviewable decision on 9 December 2016, meaning the application for review should have been lodged by 7 February 2017. However, the application was filed on 18 August 2017, resulting in a delay of 193 days. The Applicant provided no explanation for this significant delay, stating only that he accepted the application should have been lodged earlier and making no submissions regarding the length of the delay. The Tribunal considered the lack of explanation and the substantial delay to be significant factors weighing against the exercise of its discretion. Furthermore, the Tribunal noted that the Applicant had initially indicated satisfaction with the decision after it was explained to him, and had not actively contested it for a considerable period, leading the Respondent to presume the matter was concluded.

The Tribunal dismissed the Applicant's application for an extension of time.

Orders

Orders of the court

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Background

Background to the litigation

The applications have been dealt with together and were heard by Deputy President Boyle on 22 December 2017. The Respondent was represented by Mr Matthew Hawker of Sparke Helmore Lawyers who appeared by telephone.BACKGROUNDApplication 2017/5123 - The first reviewable decision (Claim number WC12100376) The first reviewable decision dated 9 December 2016, the Respondent reconsidered on its own motion, determinations made during the period from 23 May 2013 to 15 March 2016 relating to the calculation of the Applicant’s weekly incapacity entitlements under s 19 of the SRC Act in relation to an accepted “scapholunate joint reconstruction” condition sustained on 9 May 2013. The assessment identified a comparable employee which provided a more fair and reasonable assessment of the Applicant’s Normal Weekly Earnings (NWE) and Normal Weekly Hours (NWH). On completion of the review, an additional amount of $31,568.35 gross was payable to the Applicant.Application 2017/5122 – The second reviewable decision (Claim number WC131000330) The second reviewable decision dated 9 December 2016, the Respondent reconsidered on its own motion, determinations made during the period from 2 May 2014 to 8 November 2016 relating to the calculation of the Applicant’s weekly incapacity entitlements under s 19 of the SRC Act in relation to an accepted “aggravation of osteoarthrosis ankle joint” sustained on 1 April 2014. The assessment identified a comparable employee which provided a more fair and reasonable assessment of the applicant’s NWE and NWH. It also identified that as at 1 September 2016, there was no further work available for a CW1-T3 to perform on the Wheatstone Construction Village Buildings & Utilities Project and therefore applied s 8(10) of the SRC Act as at 1 September 2016 to reduce the Applicant’s NWE as at that date. On completion of the review, taking into account an overpayment of $17,377.89, there remained an additional amount of $3,176.11 gross which was payable to the Applicant. Notwithstanding that the Application for Extension of Time for Making an application for Review of Decision lodged by the Applicant on 6 September 2017 related to both Application 2017/5122 (relating to WC131000330) and Application 2017/5123 (relating to WC12100376), the Applicant now only seeks an extension of time in respect of Application 2017/5122 (paragraph 6 of Applicant’s Outline of Submissions and paragraph 1 of the Applicant’s Further submissions). The Applicant states in his application for extension of time that he received the Respondent’s decision (relevant to claim number WC13100030) on 9 December 2016.THE LAW Under section 29(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act), an application for review must generally be lodged 28 days after the applicant has received notice of the decision. Section 65(4) of the SRC Act extends the period of 28 days in section 29(2) of the AAT Act to 60 days. Section 29(7) of the AAT Act permits the Tribunal to “extend the time for the making by that person of an application to the Tribunal ... if the Tribunal is satisfied that it is reasonable in all the circumstances to do so”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The first reviewable decision dated 9 December 2016, the Respondent reconsidered on its own motion, determinations made during the period from 23 May 2013 to 15 March 2016 relating to the calculation of the Applicant’s weekly incapacity entitlements under s 19 of the SRC Act in relation to an accepted “scapholunate joint reconstruction” condition sustained on 9 May 2013. The assessment identified a comparable employee which provided a more fair and reasonable assessment of the Applicant’s Normal Weekly Earnings (NWE) and Normal Weekly Hours (NWH). On completion of the review, an additional amount of $31,568.35 gross was payable to the Applicant.Application 2017/5122 – The second reviewable decision (Claim number WC131000330) The second reviewable decision dated 9 December 2016, the Respondent reconsidered on its own motion, determinations made during the period from 2 May 2014 to 8 November 2016 relating to the calculation of the Applicant’s weekly incapacity entitlements under s 19 of the SRC Act in relation to an accepted “aggravation of osteoarthrosis ankle joint” sustained on 1 April 2014. The assessment identified a comparable employee which provided a more fair and reasonable assessment of the applicant’s NWE and NWH. It also identified that as at 1 September 2016, there was no further work available for a CW1-T3 to perform on the Wheatstone Construction Village Buildings & Utilities Project and therefore applied s 8(10) of the SRC Act as at 1 September 2016 to reduce the Applicant’s NWE as at that date. On completion of the review, taking into account an overpayment of $17,377.89, there remained an additional amount of $3,176.11 gross which was payable to the Applicant. Notwithstanding that the Application for Extension of Time for Making an application for Review of Decision lodged by the Applicant on 6 September 2017 related to both Application 2017/5122 (relating to WC131000330) and Application 2017/5123 (relating to WC12100376), the Applicant now only seeks an extension of time in respect of Application 2017/5122 (paragraph 6 of Applicant’s Outline of Submissions and paragraph 1 of the Applicant’s Further submissions). The Applicant states in his application for extension of time that he received the Respondent’s decision (relevant to claim number WC13100030) on 9 December 2016.THE LAW Under section 29(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act), an application for review must generally be lodged 28 days after the applicant has received notice of the decision. Section 65(4) of the SRC Act extends the period of 28 days in section 29(2) of the AAT Act to 60 days. Section 29(7) of the AAT Act permits the Tribunal to “extend the time for the making by that person of an application to the Tribunal ... if the Tribunal is satisfied that it is reasonable in all the circumstances to do so”. In Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 (Hunter Valley), the Federal Court set out a series of factors that might be of relevance under similar provisions in the judicial review context. The Tribunal considers the principles set out in those cases to be applicable to this matter. See also: Brown v Federal Commissioner of Taxation [1999] FCA 563 (Brown).

Ratio Decidendi

Legal Principle Established

The Tribunal agrees that the sole issue for determination is that identified by the Applicant. CONSIDERATIONThe delay It is not disputed that the Applicant did not file the application for review of the decision within the stipulated time. The combined effect of s 29(2) of the AAT Act and s 65(4) of the SRC Act is that the time for filing an application for review is 60 days after the applicant received notice of the decision. The Applicant’s Application for Review of Decision to the Tribunal states that the Respondent’s decision was received on 9 December 2016. The Applicant was therefore required to file an application for review of that decision by 7 February 2017. The Applicant filed the application for review on 18 August 2017. Accordingly, the Applicant’s application for review is 193 days out of time. By applications filed on 6 September 2017 the Applicant made applications for extensions of time to make the applications for review. The Applicant did not provide any explanation for the delay in lodging the application for review. In the Applicant’s Outline of Submissions the Applicant submits:14 The legislation does not allow this alteration as concluded by the respondent and such an interpretation is not available under any reading of these provisions, and accordingly, the applicant’s application for Review is guaranteed of success.15. The respondent has further deviated from the legislative framework by suggesting that the construction work the applicant was undertaking at the time of his injury had concluded (see page 3 of the Reviewable Decision) and suggested this was relevant to the decision when it was manifestly an irrelevant consideration.16. The applicant accepts that the application should have gone in earlier, and makes no submissions as to the length of delay.(emphasis added) Not only did the Applicant make “no submissions as to the length of delay”, but he made no submissions at all in relation to delay and, more materially, provided no explanation for the delay. While the legal principles emerging from the cases set out above, in particular that set out in paragraph 16(b), are to the effect that it is not a pre-condition to an extension of time that an acceptable explanation for the delay is provided, the reason for the delay and the extent of the delay are clearly matters that are to be taken into account in the exercise of the discretion as to whether to grant an extension of time. On any assessment, a delay of 193 days over and above the 60 days allowed for the making of an application for review of a decision is very significant and is a factor that weighs against the exercise of the Tribunal’s discretion to grant an extension of time. Similarly, the complete lack of any explanation for the very significant delay weighs against the exercise of the discretion in favour of the Applicant.Applicant rested on his rights The Tribunal refers to the principle set out at paragraph 16(c) above. The Respondent in its outline of submissions of 27 September 2017 submits as follows:4.9 There is a distinction to be made between the case of a person who has continued to make the decision-maker aware that he contests the finality of the decision (who has not ‘rested on his rights’) and a case where the decision-maker was allowed to believe that the matter was finally concluded.4.10 For the entirety of the prescribed time period (60 days) since 9 December 2016, there was no indication that the applicant disputed the reviewable decisions. To the contrary, the respondent’s file notes indicate that on 12 December 2016 the applicant advised the relevant claims manager that, after the pay increases and the section 8(10) reduction points were explained to him by the claims manager, he indicated he was happy and understood the reduction.4.11 After the expiration of the prescribed time period, the respondent notes the applicant’s legal representatives then wrote to the respondent, by letter dated 15 February 2017, contending that the respondent had ‘unlawfully’ reduced the applicant’s weekly compensation and an application to the AAT ‘will now be lodged’ in relation to ‘your letter of 9 December 2016’. The letter did not particularise on what basis it was contended that the reduction was ‘unlawful’.4.12 There is no material before the Tribunal to indicate an application to the AAT was lodged at that time. There is no evidence of any acceptable explanation as to the further delay following that letter in lodging the applications. Subsequent to that letter, the applicant’s legal representatives continued to correspond with the respondent in relation to other matters relating to the applicant.4.13 Given many months passed since the 15 February 2017 letter and the expiration of the prescribed time period, the respondent was entitled to presume that the applicant had decided not to pursue an application with the AAT in respect of the reviewable decision/s of 9 December 2016. The respondent continued to determine and pay compensation on this basis, and in fact, had paid the additional balance owing to the applicant by reason of the reviewable decisions at the time they were issued.