O'Donnell and K & S Freighters Pty Ltd (Compensation)

This matter concerned an application for an extension of time to challenge a determination of normal weekly earnings made almost ten years prior. The applicant, Mr O'Donnell, sought to reopen the calculation of his normal weekly earnings, which had been initially determined by CGU Self Insurance Services and later by the respondent, K & S Freighters Pty Ltd. The application was heard by Deputy President John Pascoe AC CVO of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether to grant the applicant an extension of time to challenge the original determination of his normal weekly earnings. This required the Tribunal to consider the principles governing extensions of time, including whether the substantive application had reasonable prospects of success, whether the delay caused prejudice to the respondent, and whether granting the extension would be fair in the circumstances. The applicant also raised issues concerning his literacy, changes in legal representation, and other proceedings before the Tribunal.

The Tribunal reasoned that the merits of the applicant's substantive application did not weigh in his favour, as he had not provided specific particulars demonstrating how the original determination was incorrect, beyond disputing the calculation period. Furthermore, the Tribunal found it would be unfair to allow the applicant to reopen the normal weekly earnings calculation after nearly a decade, especially when others in similar situations would have raised objections within the prescribed time. The applicant's evidence indicated a lifelong struggle with literacy and a failure to seek assistance or comprehensively review his compensation payments and payslips. He had also not raised concerns with his previous or current legal representatives until much later. The Tribunal concluded that there was no adequate explanation for the almost ten-year delay and that the respondent had not contributed to this delay.

Consequently, the Tribunal refused the application for an extension of time. The issue of costs was not dealt with as the respondent did not seek an order for costs.