Murray and Swire Pacific Ship Management (Australia) Pty Ltd (Compensation)

[2016] AATA 251

Murray and Swire Pacific Ship Management (Australia) Pty Ltd (Compensation) [2016] AATA 251 (19 April 2016)

Division	GENERAL DIVISION
File Number(s)	2015/6749
Re	John Murray
APPLICANT
And	Swire Pacific Ship Management (Australia) Pty Ltd
RESPONDENT

DECISION

Tribunal	Deputy President Bernard McCabe
Date	19 April 2016
Place	Brisbane

The application for an extension of time to lodge an application for review of the respondent's decision is granted until 23 December 2015.

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Deputy President Bernard McCabe

Catchwords

COMPENSATION – application of an extension of time – where confusion exists between applicant and respondent over the status of a reconsideration decision – whether applicant’s request for reconsideration was valid – where respondent failed to comply with a valid reconsideration request – extension of time granted

Legislation

Seafarers’ Rehabilitation and Compensation Act 1992 (Cth) ss 78, 79
Administrative Appeals Tribunal Act 1975 (Cth) s 25, 29

REASONS FOR DECISION

Deputy President Bernard McCabe

19 April 2016

1. The preliminary question in issue here arises out of confusion between the respondent, the applicant and the applicant’s solicitors over the status of a reconsideration decision to cease liability in respect of a workplace injury under the Seafarers’ Rehabilitation and Compensation Act 1992 (Cth) (the Seafarers’ Act).

   What happened?

2. Mr John Murray was injured on board a ship in February 2012. He lodged a claim for workers compensation under the Seafarers’ Act. The employer initially accepted liability on 6 March 2012 but decided to cease ongoing liability in a determination dated 2 May 2012 on the basis of medical reports. The applicant did not request a reconsideration of that decision until 25 July 2012, which is outside the 30 day time limit provided for in s 78 of the Seafarers’ Act. In the communication on 25 July, he said “this can’t be right” in light of other medical evidence. The employer contends the request for reconsideration was defective because it failed to set out the reasons for the request as required under s 78.

3. Whatever its misgivings about timeliness or form, the employer appeared to treat the request as if it were valid at the time. The employer wrote to the applicant on 30 August to confirm it received “your request for reconsideration”. The employer foreshadowed it would request assistance from Comcare. Comcare subsequently recommended the determination be revoked. A copy of the report containing the recommendation was provided to the applicant under cover of a letter from Comcare dated 27 September 2012. 

4. The employer did not accept Comcare’s recommendation but failed to issue a determination to that effect within 60 days as required under s 79. Mr Murray says he assumed the report and recommendation from Comcare had been adopted by the employer.

5. In August 2012, he made a preliminary approach to Maurice Blackburn, a law firm, to discuss his rights if he required surgery. He said in his statement that he did not pursue the discussion with the firm when he realised he would not require the surgery after all. But he said he remained of the view he had not been paid his full entitlements so he initiated fresh contact with Maurice Blackburn in January 2013. He did not formally engage the firm until March 2013. Ms Plunkett-Scott, who now has carriage of the file for Maurice Blackburn, confirmed in her statement that Mr Murray instructed the firm he had an accepted claim under the Seafarers’ Act in respect of his wrist injury. Maurice Blackburn wrote to the employer on 15 March 2013 and asked for a copy of his file so they could advise their client on his entitlements. The employer’s solicitor provided a number of documents in response on 23 May 2013, including the original determination and Comcare’s reconsideration report. There was no reconsideration determination amongst those documents – because there had been no determination.

6. The applicant’s lawyers did not realise the Comcare reconsideration report had not been adopted by the employer, and that there was no determination revoking the determination to cease liability dated 2 May 2012. The applicant and his lawyers proceeded as if the claim had been accepted and there was a dispute with respect to entitlements. It seems the applicant did not rest on his rights: after he engaged Maurice Blackburn, Ms Plunkett-Scott said (in her supplementary statement) the applicant contacted the firm regularly to enquire about progress and provide information as required. The firm also made arrangements for the applicant to obtain a medical report from Dr Todman. That report is dated 8 July 2014.

7. Ms Plunkett-Scott said her firm wrote to the respondent on 29 May 2015 seeking payment of entitlements and incapacity payments. Ms Plunkett-Scott acknowledged the firm’s delay in providing Dr Todman’s report and requesting payment of entitlements. She said the firm was still operating under the mistaken impression that the respondent had revoked its determination of 2 May 2012. The mistake did not come to light until the firm received the respondent’s letter of 24 June 2015.

   Was there a valid request for reconsideration?

8. The respondent denies the applicant made a valid request for review. It says the request is now out of time. Reconsideration of decisions is dealt with in s 78 of the Seafarers’ Act. Section 78(1) says the employer can reconsider a decision at any time on its own motion. Section 78(2) says the employee may make a written request for a reconsideration but s 78(3) provides the request must:

   (a) set out the reasons for the request; and

   (b) be given to the employer within 30 days after the day on which the determination first came to the notice of the claimant, or within such further period (if any) as the employer, either before or after the end of that 30 day period, allows.

9. The applicant says his request for reconsideration is found in a handwritten document dated 25 July 2012. The document is addressed to “Mal” whom I infer is Mr Hearden, the manager who authored the letter from the employer dated 2 May 2012 setting out the determination. The applicant’s letter is conversational in tone. It explains the purpose of the letter is to provide an update on the applicant’s injury. It notes the employer was aware the applicant was declared fit to return to work as of 1 May 2012 – an apparent reference to the report of Dr Andrews, which provided the basis for the determination. The applicant explained he thought “[T]his can’t be right” which prompted him to seek further medical advice. He reported that his own fresh medical evidence suggested he had more serious problems and would not be fit to return to work without surgery. The applicant concludes the letter by saying: “Do hope you can sort something out for me. As I don’t want to retire just yet!”

10. The respondent says that document does not satisfy the requirement in 78(3) that the request include reasons. I disagree. The applicant is clearly pointing to a dispute in relation to the medical evidence which was used as a basis for the determination. He refers to medical evidence of his own which suggests a different conclusion. He did not provide the evidence, but there is no requirement that he do so at that point. He clearly wanted the employer to revisit its decision. He had a valid reason for seeking that reconsideration and he provided enough information about his reasons to put the respondent on notice of what the applicant was saying. The notice was given to the respondent outside the 30 day time limit provided under the Seafarers’ Act but it seems from the letter of 30 August 2012 that the employer agreed to treat the request as being made within time, and proceeded to refer the matter to Comcare as it was required to do so. If the employer had indicated at the time it was unlikely to extend time for making the request, the applicant would have had the opportunity to make submissions as to why the employer should exercise the discretion.

11. I am satisfied the applicant made an otherwise valid request for reconsideration out of time, and that the employer exercised its discretion to extend the time for the request to be lodged.

    If there was a valid request for reconsideration, what happens?

12. After receiving the recommendation from Comcare, the employer failed to comply with its obligation under ss 78(5), (6) to proceed with the reconsideration. Section 79(1) says the reconsideration should have been completed within 60 days in the ordinary course (although s 79(1)(b) permits the employer to obtain more time – which did not happen here). As a consequence, the employer is deemed under s 79(6) to have made a determination disallowing the claim at the end of the 60 day period. The deemed date of disallowance was either 23 September 2012 (according to the respondent) or 1 October 2012 (according to the applicant). Nothing turns on the difference between the dates for present purposes.

13. Section 87 of the Seafarers’ Act provides an employer must notify the applicant in writing as soon as practicable after making the review decision. That written advice should set out the reasons for the decision and include a statement about appeal rights. None of that was done. The applicant says the clock does not begin to run on his appeal rights until the s 87 requirements have been satisfied. In those circumstances, he argues he does not need an extension of time.

14. I am not so sure about that, although I do not think it makes any difference to my ultimate decision. Let me explain why.

15. Section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) gives the Tribunal power to grant extensions of time. Section 29(2) says the usual time limit for making an application in relation to a decision that has been reduced to writing is 28 days from the date on which the written statement of reasons is provided to the applicant. Where the decision is deemed to be made under s 25(5) or 25(5A) – because no decision was made within the usual time limit for the making of that decision – then the decision is taken to have been made at the end of the prescribed period. But the applicant says the decision was not a deemed decision under s 25(5) or (5A) of the AAT Act because there is a specific provision – namely s 79(6) of the Seafarers’ Act – which provides for the making of deemed decisions under that legislation. The applicant points out s 79(6) does not prescribe a time limit for making applications for review. In those circumstances, I was told, the applicant is merely obliged to make his or her application for review to this Tribunal “within a reasonable time after the decision was made”: s 29(4) of the AAT Act. In the course of determining the length of “a reasonable time”, s 29(5) says I must have regard to the time at which the applicant became aware of the decision being made, and any other matters I consider relevant.

16. An alternative approach is to consider whether an extension of time should be granted pursuant to s 29(7) of the AAT Act if the appeal period has, in fact, expired. The power to extend time is available under that sub-section where I am “satisfied that it is reasonable in all the circumstances to do so”. As it happens, both enquiries involve considerations of reasonableness – although the focus of each enquiry is subtly different.

17. I note the applicant was constructively aware of the decision being made by the time his solicitors received the relevant documents from the employer under cover of a letter dated 23 May 2013. I accept the applicant and his solicitor did not have actual knowledge until sometime later, but the lawyers were clearly on notice of what had been decided – and not decided – by 24 May 2013 when the letter was received.

18. None of the participants in this process has been sufficiently diligent in dealing with the matter. The applicant was slow to request a reconsideration; the employer failed to discharge its responsibility to comply with that request once it agreed to accept the late application. The applicant’s solicitors in turn failed to carefully read the information provided by the employer. If they had done so, they would have appreciated that – contrary to their client’s instructions – there was no reconsideration determination (although, to be fair, the respondent’s lawyers did not highlight their client’s position either). The applicant’s lawyers compounded the error by proceeding too slowly, most obviously because they did not think there was any particular urgency after uncritically accepting their client’s instructions.

19. While the applicant’s lawyers moved too slowly, I acknowledge the applicant himself appears to have been keen to proceed with his matter and contacted his lawyers to ask about progress. He also attended medical appointments that were made for him in contemplation of his claim. His misapprehension about the status of his claim after receiving a letter from Comcare is easy to understand.

20. The delay is problematic for both sides because each of them faces an evidentiary challenge. Most of the medical evidence is dated; time limits ordinarily apply to reviews of this kind precisely because it becomes more difficult to obtain useful medical evidence as time goes by. But the parties do have some medical evidence, and the respondent certainly had the opportunity to obtain further evidence during the course of the reconsideration process (and presumably did so in light of its failure to accept Comcare’s recommendation).

21. Apart from the lackadaisical approach evident on both sides of this dispute, I note the applicant does appear to have an arguable claim. He has obtained medical evidence in support of his claim and the favourable Comcare reconsideration report suggests his claim has merit.

22. If I were to accept s 29(4) of the AAT Act is applicable, I do not think the evidence establishes the applicant lodged his application for review within a reasonable time. While some delay is understandable given his confusion over the respondent’s confusion, his lawyers were on notice of the true position from the time they received the material from the respondent which did not include a favourable determination. At that time, or shortly after they had an opportunity to make enquiries, the clock began to run and an application should have been made. It follows the applicant cannot rely on s 29(4) to argue his appeal is still within time. The only question is whether it was out of time from the point at which the applicant’s lawyers should have been aware of the decision (if s 29(4) is applicable) or in late September or October 2012 because of the operation of s 29(5) or (5A).

23. The next question is whether I should extend the time within which to make the application. That discretion is found in s 29(7). I have decided it is appropriate to exercise the discretion in favour of the applicant in this case. I do so in light of my observations about the performance of both the respondent and the applicant’s lawyers, whereas I note the applicant has been (comparatively) diligent. He has not rested on his rights after (belatedly) seeking reconsideration. I accept both parties may experience some difficulty in obtaining accurate medical evidence given the passage of time, but both parties appear to have some evidence available to them. Ultimately, though, the factor that weighs most heavily in favour of the applicant is the potential merit of the case. I have not delved deeply into the evidence – it is inappropriate to do so in the circumstances of an interlocutory application – but the fact he received a favourable recommendation from Comcare points to a an arguable case.

    Conclusion

24. The time for the applicant to make an application is extended to 23 December 2015.

25.     I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe.

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Associate

Dated 19 April 2016

Date of hearing

19 February 2016

Counsel for the Applicant

Solicitors for the Applicant

Mr M Black

Maurice Blackburn

Solicitors for the Respondent

Jarman McKenna