Mattson and Commonwealth Bank of Australia

[2011] AATA 553

Administrative Appeals Tribunal

[2011] AATA 553

ADMINISTRATIVE APPEALS TRIBUNAL      )          

)          No   2011/2538

GENERAL ADMINISTRATIVE DIVISION		)
Re		Paul MATTSON

Applicant

And Commonwealth Bank of Australia

Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date2 August 2011

PlaceSydney

Decision The application for extension of time is refused.

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

Mr R P Handley
  Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – application for extension of time for making an application for review of decision – delay of over 12 months – change of applicant’s circumstances – Tribunal not satisfied that extension of time reasonable in all the circumstances – application for extension of time refused

RELEVANT ACTS

Administrative Appeals Tribunal Act 1975:  s 29

Safety, Rehabilitation and Compensation Act 1988: ss 14, 62, 65

Workers Compensation Act 1987 (NSW): s 66

CITATIONS

Hunter Valley Developments Pty Ltd v Minister for Home Affairs & Environment (1984) 3 FCR 344

For the reasons given orally on 2 August 2011, the Tribunal refused Mr Mattson’s application for an extension of time for the making of an application to the Tribunal.  A written version of those oral reasons follows.

REASONS FOR DECISION

11 August 2011 Mr R P Handley, Deputy President          

1.On 11 July 2011, the applicant, Mr Mattson, applied to the Tribunal for an extension of time for making an application to the Tribunal for review of a decision of the Commonwealth Bank of Australia (CBA) made on 13 January 2011.

2.Under s 29(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), the prescribed time for making applications for review is 28 days after notification of the decision. However, s 65(3) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) substitutes a period of 60 days in relation to reviewable decisions under the SRC Act. “Reviewable decisions” is defined in s 60(1) of the SRC Act to include determinations on requests for reconsiderations under s 62.

3.Section 29(7) permits the Tribunal to grant an extension of time if satisfied that “it is reasonable in all the circumstances to do so”. This is an unconfined discretion, but the Tribunal is guided in exercising its discretion by a number of considerations which are usefully summarised by Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs & Environment (1984) 3 FCR 344 at 348-349 (the Hunter Valley Developments decision).  These considerations include whether the Applicant has given a reasonable explanation for the delay, whether the Applicant made the Respondent aware that the finality of the relevant decision was being contested, prejudice caused to the Respondent by the delay, any adverse impact that might be caused to others, whether the substantive application has merit, and considerations of fairness with regard to others and the public interest.

BACKGROUND

4.On 23 December 2008, Mr Mattson lodged a claim for compensation benefits for an exacerbation of an existing left shoulder supraspinatus tear sustained on 15 December 2008.  The original injury was sustained on or about 21 April 2008 and, after accessing sick leave on a number of occasions, Mr Mattson returned to work on 17 November 2008 for four hours per day after having his workstation assessed by an occupational therapist.

5.On 21 January 2009, the CBA found that it was not liable to compensate Mr Mattson for the 15 December 2008 injury because that injury was not significantly contributed to by the employee’s employment.  The CBA relied on a report by Dr Robert Breit that the claim was not reasonable mechanically or biologically.  On 25 February 2009, Mr Mattson sought a review of that decision and, on 3 March 2009, was sent a letter acknowledging his request that the decision would be reviewed before 20 March 2009.

6.On 12 March 2009, Mr Mattson had a conversation with Tim Clift, executive manager of the workers’ compensation department of CBA, during the course of which Mr Mattson indicated he intended to withdraw his request for review of the CBA’s decision of 21 January 2009.  Mr Clift’s file note of the conversation indicated that Mr Mattson told him that he had had his income protection claim approved and “no longer wished to proceed with his compensation claim”.  The file note also recorded Mr Clift having advised Mr Mattson that he may “request a reconsideration in the future however given the 30-day time period, it may be that an extension of time in the future may not be given”.  Mr Clift sent Mr Mattson a letter dated 12 March 2009 confirming this conversation.

7.On 8 October 2010, Mr Mattson’s legal representatives contacted the CBA and advised of a claim for disability compensation under s 66 of the Workers Compensation Act 1987 (NSW). On 25 October 2010, the CBA replied, indicating that the representatives had made a jurisdictional error and that the CBA was covered by the federal SRC Act.

8.Between 25 October 2010 and 15 December 2010, Mr Mattson’s legal representatives made further enquiries of the CBA in relation to a potential compensation claim.  On 23 December 2010, the CBA again wrote to Mr Mattson’s representatives, explaining the jurisdictional error subsisting in Mr Mattson’s representatives’ correspondence.

9.On 6 January 2011, Mr Mattson’s legal representatives replied, seeking a reconsideration of the CBA’s primary determination under s 62 of the SRC Act on the bases that the delay was the result of Mr Mattson’s ignorance of the law, that no extension of time was required since a reconsideration request had already been made on 25 February 2009, and that necessary medical information was not made available to Mr Mattson until 28 October 2010.

10.On 13 January 2011, the CBA refused to grant an extension of time within which to lodge an application for reconsideration of the decision dated 21 January 2009.  On 29 June 2011, Mr Mattson applied to the Tribunal for review of this decision and, on 11 July 2011, for an extension of time for the making of the application to the Tribunal. 

Submissions

11.Mr Kambas, for Mr Mattson, said Mr Mattson was not aware that he could make a claim for compensation in respect of personal injury when he withdrew his request for a review.  The CBA have always been aware of his claim for compensation in respect of the alleged injury on 15 December 2008 and will not be prejudiced by an extension of time being granted.  Moreover, Mr Mattson should not be prejudiced by the fault of his solicitors in not making an application within time.

12.Mr Richards, for CBA, submitted that the prima facie rule is that applications made outside time should not be permitted.  An application for an extension of time must offer an acceptable explanation for the delay which, he submitted, had not been provided in this case.  Fairness as between applicants and the public interest requires that an extension of time should only be granted in exceptional circumstances. 

13.Mr Richards noted that, in this case, Mr Mattson informed the CBA in a telephone conversation on 12 March 2009 that he did not wish to proceed with his application for a review of the CBA decision, which Mr Clift of the CBA subsequently confirmed by letter, emphasising that any further application might require the grant of an extension of time which would not necessarily be granted.  Mr Richards said there may be prejudice to the CBA if relevant witnesses who were in the CBA’s employment at the time of the incident in December 2008 have now left that employment.

14.With regard to the merits of the substantive application, Mr Richards said the incident involved no more than the moving of a folder, which Dr Breit had dismissed as a reasonable explanation for the alleged injury.

15.Mr Richards also submitted that a strict reading of s 62(2) of the SRC Act indicates that only one request for reconsideration of a decision can be made. That one request was made on 25 February 2009 and subsequently withdrawn.

Consideration

16.As I have already stated, s 29(7) of the AAT Act permits the Tribunal to grant an extension of time if satisfied that it is reasonable in all the circumstances to do so.

17.The prima facie principle, to which Mr Richards has referred, is that proceedings commenced out of time should not ordinarily be entertained.  Time constraints on making an application for review are imposed for good reason in permitting parties to rely on the finality of decisions.

18.I have considered the matters to which Wilcox J drew attention in the Hunter Valley Developments decision.  It seems to me that these proceedings have been characterised by delays since the time Mr Mattson notified the CBA that he did not wish to proceed with his application for review.  There was a delay of nearly two years before Mr Mattson’s lawyers made a further request for a reconsideration of decision on 6 January 2011.  This is despite the fact that Mr Mattson’s lawyers had had instructions, at the very least, some months previously.  Then, when the CBA refused the request for a reconsideration of decision on 13 January 2011, it was not until 11 July 2011 that an application was made to the Tribunal for a review of that decision, along with an application for an extension of time in respect of the Tribunal application, which was itself three months out of time.

19.Returning to Mr Mattson’s dealings with the CBA in early 2009, I noted above that Mr Mattson had a conversation with Mr Clift on 12 March 2009 in which he told Mr Clift that he was withdrawing his application for a reconsideration of decision.  According to Mr Clift’s file note, Mr Clift informed Mr Mattson of how this would affect Mr Mattson’s further right to seek a review on the same date.  In my view, it is clear that Mr Mattson should have been aware of the effect of his decision to withdraw his application for a reconsideration of decision, and yet no further application was made to the CBA until 6 January 2011.

20.In my view, in these circumstances, it was also reasonable for the CBA to rely on the finality of Mr Mattson’s notification of his withdrawal.  It is not clear that the CBA would suffer any significant prejudice by the granting of an extension of time although, as Mr Richards noted, witnesses to the incident on 15 December 208 may no longer be in the CBA’s employment. 

21.However, it must be remembered that if I grant an extension of time for the making of the application to the Tribunal, there will then be a further hearing for the Tribunal to review the CBA’s decision to refuse an extension of time to lodge an application for reconsideration of decision. It will only be at that stage, if the Tribunal sets aside the decision of the CBA and substitutes a decision granting an extension of time for the application for reconsideration of its decision, that the CBA will be required to review its original decision dated 21 January 2009 in relation to liability under s 14 of the SRC Act. As to the merits of the substantive application, I have very little material before me on which to make a preliminary assessment, but what I have heard from Mr Mattson’s solicitor does not persuade me in all the circumstances that I should exercise my discretion to grant an extension of time. Finally, with regard to fairness as between applicants and the public interest, given the delays in these proceedings, I take the view that these considerations support the case for not granting an extension of time.

22.In conclusion, in relation to the discretion in s 29(7) of the AAT Act, I am not satisfied that it is reasonable in all the circumstances to grant an extension of time. Mr Mattson’s application for an extension time is therefore refused.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.

Signed:.............[sgd].................................................................
           Associate

Date of Hearing  2 August 2011
Date of Decision  2 August 2011
Date of Written Reasons  12 August 2011
Solicitor for the Applicant  J Kambas, PK Simpson & Co
Counsel for the Respondent                      D Richards

Representative for the Respondent:         T Clift, Commonwealth Bank of Australia Workers’ Compensation Unit