O'Hara and Australian Postal Corporation (Compensation)
[2023] AATA 402
•2 March 2023
O'Hara and Australian Postal Corporation (Compensation) [2023] AATA 402 (2 March 2023)
Division:GENERAL DIVISION
File Number: 2023/0455
Re:Jason O'Hara
APPLICANT
AndAustralian Postal Corporation
RESPONDENT
Reasons FOR Decision
Tribunal:Senior Member C. J. Furnell
Date:2 March 2023
Date of written reasons: 17 March 2023
Place:Melbourne
Pursuant to a decision made on 2 March 2023, the Tribunal refused the Applicant’s application under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) for an extension of time within which to lodge an application for review of a decision of the Respondent dated 19 April 2022. The following are the written reasons for that decision.
.........................[SGD]...............................................
Senior Member C. J. Furnell
Catchwords
PRACTICE AND PROCEDURE – application for extension of time within which to lodge application for review – principles regarding whether extension should be granted – length of delay – explanation for delay – whether fault of solicitors constitutes an adequate explanation for delay – prejudice to Respondent – merits of underlying application – extension of time application refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Antonious v Comcare [2018] AATA 3968
Australian Appaloosa Association Ltd v Australian Securities and Investments Commission [2018] AATA 3173
BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400
Brisbane South Regional Health Authority and Taylor (1996) 139 ALR 1
Bristowe v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 690
BVG17 v BVH17 [2019] FCAFC 17
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
Comcare v A’Hearn (1993) 45 FCR 441
Crick v Prosegur Australia Pty Ltd [2016] AATA 313
Downing v Minister for Immigration and Border Protection [2019] FCA 1684
Englezos v Secretary, Department of Social Services [2023] FCA 31
Franklin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 18
Frugtniet v Secretary, Department of Social Services [2017] FCA 1227
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 48 ALR 305
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
Makarov v Minister for Home Affairs [2020] FCA 734
Matson v Australian Information Commissioner (No 2) [2021] FCA 690
Matthews v Markos [2019] FCA 1827
Miller v Minister [2022] FCAFC 183
MZZFQ v Minister for Immigration and Border Protection [2016] FCA 1133
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
Ryan v Commissioner of Police, NSW Police Force [2019] FCA 1607
Saad v Secretary, Department of Social Services [2019] AATA 31
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 150
Social Security, Secretary, Department of Van Dan Boogaart (1995) 37 ALD 619
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
SZUTY v Minister for Immigration and Border Protection (No 2) [2016] FCA 289
Weber v Carkeek [2023] VSCA 39
Wekerle v Department of Home Affairs [2020] FCA 1300
Zaiter and Comcare (Compensation) [2022] AATA 2353
Zanbergs v Commonwealth Bank of Australia [2014] AATA 866
Zizza v Commissioner of Taxation [1999] FCA 37
Zizza v Commissioner of Taxation [1999] FCA 848
REASONS FOR DECISION
Senior Member C. J. Furnell
17 March 2023
On 19 April 2022, the respondent decided to affirm a determination it had made on 8 March 2022 denying a liability to pay incapacity for work compensation under the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of an injury which it had, in 2012, accepted had been suffered by the applicant. The denial was expressed to apply with respect to the period 12 December 2012 to 5 January 2020.
The applicant said he received the respondent’s decision on 19 April 2022.[1] If he wanted to have the Tribunal review the respondent’s decision, he had a period ending 60 days thereafter within which to lodge his review application.[2] In fact, however, he did not lodge such an application with the Tribunal until 18 January 2023.
[1] Application for review of 18 January 2023.
[2] Act, s 65(4); Administrative Appeals Tribunal Act 1975, s 29(2).
As the review application was lodged outside the 60-day prescribed time frame, the Tribunal’s jurisdiction was not engaged.[3]
[3] Miller v Minister [2022] FCAFC 183 [52].
The Tribunal may, however, decide to extend that time frame. On 18 January 2023, the applicant applied to the Tribunal asking that it make such an extension decision.
On 2 March 2023, I decided to reject that application for reasons which I then outlined, orally.
The parties have requested that I provide a statement in writing of those reasons. I do so now.
Discretion to extend
The Tribunal can decide to extend the time for the making of a review application if satisfied that it is reasonable in all the circumstances to do so.[4]
[4] Administrative Appeals Tribunal Act 1975, s 29(7).
In this matter, in deciding whether I was so satisfied, I had regard to certain criteria and principles, being criteria and principles which, while non-exhaustive,[5] are often employed in the context of extension of time applications, not only by the Tribunal [6] but also more generally.[7]
[5] Zizza v Commissioner of Taxation [1999] FCA 848 at [13]; Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 48 ALR 305 at p.310.
[6] See, for example, Australian Appaloosa Association Ltd v Australian Securities and Investments Commission [2018] AATA 3173 at [27]; Antonious v Comcare [2018] AATA 3968 at [10]-[11]; Saad v Secretary, Department of Social Services [2019] AATA 31 at [12]. See also Zizza v Commissioner of Taxation [1999] FCA 848 at [17].
[7] Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 48 ALR 305 at pp.349-350; MZZFQ v Minister for Immigration and Border Protection [2016] FCA 1133 at [10]; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]; BVG17 v BVH17 [2019] FCAFC 17 at [34]; Franklin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 18 AT [25]; Weber v Carkeek [2023] VSCA 39 at [28].
First, it is for the person seeking an extension:
“…to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.”[8]
[8] Brisbane South Regional Health Authority and Taylor (1996) 139 ALR 1 at p.10 per McHugh J.
Hence, an extension of time ought not be granted unless the Tribunal is “positively satisfied that it is proper to do so”[9] or “…unless it is proper to do so.”[10] In this regard, “…the legislated time limits are not to be ignored.”[11]
[9] BVG17 v BVH17 [2019] FCAFC 17 at [134], cited with approval in Matson v Australian Information Commissioner (No 2) [2021] FCA 690 at [118].
[10] BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33]; CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [14]; Franklin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 18 at [25]; Downing v Minister for Immigration and Border Protection [2019] FCA 1684 at [5].
[11] Ibid.
Second, in deciding whether to be satisfied that it is proper to grant an extension, account is normally taken of the length of the relevant delay, the adequacy of any explanation provided for the delay, any prejudice to the respondent occasioned by the delay and the merits of the underlying application.[12]
[12] Ahamed v Secretary, Department of Human Services [2022] FCA 1207 at [15]; Wekerle v Department of Home Affairs [2020] FCA 1300 at [6]; BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33]; CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [13]-[18]; Franklin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 18 at [25]; Weber v Carkeek [2023] VSCA 39 at [28].
Length of delay
The length of the delay in this case was in the order of seven months. The 60-day time frame in which to lodge an application for review of the 19 April 2022 decision expired on around 18 June 2022. As already mentioned, the review application was, in fact, lodged on 18 January 2023.
In this matter it might be said that, in a practical sense, the length of the delay was less than might appear to be the case. In a letter to the applicant’s solicitors of 15 June 2022, the respondent advised that it would “…not oppose any extension of time for you to commence those proceedings in the AAT within 60 days from the receipt of this letter.” Hence, a review application lodged with the Tribunal by mid-August 2022 would not have been opposed. In fact, however, the applicant’s review application was lodged around five months later.
In the context of a 60-day prescribed period in which to lodge review applications, a seven-month (and even a five-month) delay is significant.
In this regard:
“…it is a matter of common sense that the longer the delay the more difficult it will be for an applicant to persuade any tribunal that an extension of time should be granted. It is also a matter of common sense that the longer the delay the better the explanation will need to be.”[13]
[13] Makarov v Minister for Home Affairs [2020] FCA 734 at [36].
Explanation for delay
I am not satisfied that the applicant has a good or adequate explanation for the delay.
It is “…always necessary to examine what explanation, if any, is given for delay and the adequacy of that explanation.”[14] Indeed, it has recently been said that an applicant for an extension “…must show an acceptable explanation for the delay”[15] or, more directly, that “…there must be some acceptable explanation for the delay.”[16] The “…time limits prescribed by the Federal Court Rules and AAT Act are not ‘mere aspirational guidelines’ and the applicant must provide a good reason to explain the delay, particularly when that delay is lengthy.”[17]
[14] Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 150 at [9].
[15] Matson v Australian Information Commissioner (No 2) [2021] FCA 690.
[16] BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33]; CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [13]; Franklin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 18 at [25].
[17] Englezos v Secretary, Department of Social Services [2023] FCA 31 at [39].
While the proposition that “there must be” an acceptable explanation for delay might be open to doubt,[18] it is clear that the adequacy of such an explanation is a factor of significance in considering whether to grant an extension. Put simply, while not necessarily fatal to an extension application, the absence of an adequate explanation will weigh heavily against its grant.[19]
[18] Comcare v A’Hearn (1993) 45 FCR 441.
[19] Social Security, Secretary, Department of Van Dan Boogaart (1995) 37 ALD 619 at 621.
In the applicant’s 18 January 2023 request for an extension, several matters were identified by way of explanation for his delay.
First, when the reviewable decision of April 2022 was made, it was said to have led to some confusion. The applicant had initially requested that the respondent determine the applicant’s entitlement to incapacity for work compensation for the period 12 December 2021 “until present”.[20] However, on “… issuing this reviewable decision, …[the applicant’s lawyers were] unaware whether the period of denied liability extended to the present or if it was confined to a certain period.”[21]
[20] Applicant’s solicitors’ letter of 26 October 2021.
[21] Application for an extension of time of 18 January 2023.
It is difficult to understand how there could have been any confusion or uncertainty as to the “period of denied liability.” That period was clearly identified in each of the first two paragraphs of the reviewable decision of 19 April 2022.
More significantly, however, even if there was such uncertainty or confusion, it does not explain the delay in lodging a review application. The applicant has requested the Tribunal’s review of the relevant decision knowing, now, that the liability denial reflected in it applies to a confined period. There is no suggestion that the applicant would not have sought review of the decision if that denial had, instead, “extended to the present”.
Any uncertainty or confusion as to the scope of the respondent’s denial of liability fails to explain why the last paragraph of the respondent’s letter of 19 April 2022 was ignored or disregarded. In that paragraph it was said that if “…you are dissatisfied with this decision you may ask the Administrative Appeals Tribunal to review the decision…The period of 60 days allowed to ask for a review by the AAT will expire on or about 18 June 2022.”
Even if uncertainty or confusion as to the scope of the respondent’s denial of liability did explain the applicant’s delay in lodging his review application, the extent of the delay so explained could not persist beyond resolution of that uncertainty. As was acknowledged on behalf of the applicant, confirmation that the liability denial period was confined was received from the respondent on 15 June 2022, around seven months before lodgement of the review application.
As mentioned earlier, in a letter of 15 June 2022, the respondent stated it would “…not oppose any extension of time for you to commence those proceedings in the AAT within 60 days from the receipt of this letter.”
The opportunity afforded by that letter was not taken up. Instead, the applicant’s lawyers stated (with my emphasis) that, since that 15 June 2022 letter, they had:
“…been in ongoing communications with Australia Post to obtain determinations for Mr O’Hara’s ongoing incapacity payments… Amidst the ongoing discussions with Australia Post, we had decided to put off lodging this decision until we had a clearer understanding of the incapacity issue and relevant periods. While awaiting further determinations, due to our oversight we had missed the 60 day time frame to lodge this particular reviewable decision.”[22]
[22] Application for an extension of time of 18 January 2023.
The second aspect of that statement concerning “our oversight” reflected what was the primary focus of the applicant’s submissions at the hearing of the extension application. Put shortly, it was submitted that the delay in lodgement of the review application was the fault of the applicant’s solicitors and that their fault ought not be sheeted home to the applicant.
I accept that the fault of a person’s solicitors can constitute an adequate explanation for delay caused by that fault.
In Comcare v A’Hearn,[23] the Court considered a tribunal decision in which it was said that the “inexcusable delay” of a person’s solicitors could not constitute an acceptable explanation for the person’s delay. The Court’s conclusion was that “this approach cannot stand”.
[23] Comcare v A’Hearn (1993) 45 FCR 441 at [11]-[13].
Since A’Hearn, there have been a number of Tribunal and Court decisions in which it was accepted that delay caused by a person’s solicitors ought not be sheeted home to the person.[24] That acceptance does not, however, mean that a person avoids all responsibility for delay causally connected to the conduct of the person’s solicitors.
[24] See, for example, Matthews v Markos [2019] FCA 1827 at [92]; Ryan v Commissioner of Police, NSW Police Force [2019] FCA 1607 at [37]; BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [6].
In Zaiter,[25] an explanation for delay was considered adequate in circumstances where the relevant delay was said to reveal administrative incompetence of the applicant’s representatives, but no direct failure of the applicant concerned.[26] Indeed, there, the applicant claimed to have instructed her solicitors to proceed to appeal a decision but they had simply failed to do so.[27]
[25] Zaiter and Comcare (Compensation) [2022] AATA 2353.
[26] Ibid at [29].
[27] Ibid at [22].
In Zanbergs,[28] SM Toohey also implicitly found that delay was adequately explained by the failure of the applicant’s legal representatives. Importantly, however, the Senior Member accepted that “…an applicant who, for example, does little or nothing to pursue an application…cannot be said to have an acceptable explanation for delay merely because her solicitors also delayed matters.”[29] In that case, the applicant was found to have had “…sought to have the decision reviewed at every step. She sought reconsideration within time when that was available to her.”[30]
[28] Zanbergs v Commonwealth Bank of Australia [2014] AATA 866.
[29] Ibid at [27].
[30] Ibid at [29].
Matthews[31] was another case where delay was said to be explained not unreasonably[32] by the failure of the applicant’s legal representatives. The applicant’s reliance on her lawyers was reasonable given her inexperience and mental health disorders. Even then, however, it was the applicant who had become concerned about a lack of progress and who had then informed her lawyers of the relevant time constraints.[33]
[31] Matthews v Markos [2019] FCA 1827.
[32] Ibid at [95].
[33] Ibid at [92].
On the other hand, in Crick,[34] an applicant’s inaction was said to weigh against the grant of an extension of time despite the applicant’s solicitors’ own inaction.[35]
[34] Crick v Prosegur Australia Pty Ltd [2016] AATA 313.
[35] Ibid at [25].
In this matter, the applicant would have been aware of the time frame in which to lodge a review application (ending on 18 June 2022) and also of the time frame in which an application could have been lodged unopposed by the respondent (ending in mid-August 2022).[36]
[36] In this regard, I infer that the applicant had received a copy of the respondent’s letters of 19 April 2022 and 15 June 2022 outlining the relevant time frames, an inference which the applicant accepted at the hearing of the extension application was one I was entitled to make.
Despite his awareness of those time frames, as I see it, there is nothing before me suggestive of the applicant having done anything in an effort to ensure that those time frames were met or that any delay in meeting them was minimised.
Indeed, the statement made in the applicant’s application for an extension that “we had decided to put off lodging this decision” is suggestive not of the applicant’s passivity in the face of delay but of his active concurrence in the adoption of an approach to the matter in which delay was inherent.
On behalf of the applicant, however, it was submitted that, rather than the applicant being passive in the face of delay, I could find that he actively sought to minimise delay by having instructed his solicitors to lodge a review application within the prescribed 60-day time frame. Instructions along those lines could, it was said, be inferred from the statement in the extension application that “due to our oversight we had missed the 60 day time frame”.
I reject that submission. First, I am uncomfortable with relying on an inference as to the applicant’s instructions when direct evidence of those instructions ought to have been readily available. Secondly and more significantly, the suggested inference does not rise above mere conjecture or speculation. Its making is not justified by the objective facts as revealed in the material before the Tribunal.[37]
[37] Bristowe v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 690 at [18]-[20]; Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 at [123]-[124].
In any event, however, even if I were to make the suggested inference, little is said about the applicant’s conduct after expiry of the prescribed 60-day time frame. After that expiry there is a period of around seven months in respect of which no explanation is proffered for failing to lodge a review application other than that discussions were ongoing with the respondent and “we had decided to put off lodging this decision.” There is nothing before me suggestive of the applicant having done anything in that seven-month period in an effort to minimise delay.
As stated earlier, I am not satisfied that the applicant has a good or adequate explanation for the delay. This, together with the significance of the delay, weighs heavily against granting the extension sought by the applicant.
Other considerations
Other considerations normally taken into account in deciding whether to be satisfied that it is proper to grant an extension include prejudice to the respondent occasioned by the delay and the merits of the underlying application.
Neither of those considerations is of significance in this proceeding.
As for prejudice, the applicant submitted that the respondent would not suffer any prejudice of relevance.
I accept the gist of that submission.
In order to be satisfied that a respondent would suffer specific prejudice as a result of granting an extension application, it would normally be expected that the respondent put on evidence showing its nature and extent.[38] In this proceeding, no such evidence was before the Tribunal.
[38] Zizza v Commissioner of Taxation [1999] FCA 37.
The respondent nevertheless submitted that it would suffer prejudice should the applicant’s extension application be granted. In this regard, to some extent, prejudice might be inferred from the mere passage of time. Such prejudice does not require evidence “…beyond the inferences flowing from the passage of time and the common knowledge that memory may fade with time and that making inquiries to test facts which are asserted may become increasingly difficult over time…”.[39]
[39] Frugtniet v Secretary, Department of Social Services [2017] FCA 1227 at [18].
The respondent alluded to an evidentiary difficulty if the proceeding were to go ahead. Apparently, issues concerning the applicant’s capacity to work overtime since around 2012 would need to be considered. That may be true. As noted on behalf of the applicant, however, the prejudice of relevance in this proceeding is that occasioned by the delay in lodging the review application. The evidentiary difficulty the respondent would have encountered in responding to the applicant’s proceeding is not prejudice of that type. Were the applicant to have made a timely review application, it is a difficulty which the respondent would need to have confronted. It is not a difficulty occasioned by the applicant’s seven-month delay.
While I am not satisfied that the applicant’s delay in lodging his application for review has prejudiced the respondent, the absence of any finding that the respondent would be so prejudiced is not enough to justify the grant of an extension.[40]
[40] BVG17 v BVH17 (2019) 268 FCR 448 at [134]; Franklin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 18 at [25].
As for the merits of the underlying application, this entails an examination at an impressionistic level of an applicant’s grounds of review to see whether they are “…’reasonably arguable’, ‘sufficiently arguable’ or have ‘reasonable prospects of success’.”[41]
[41] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63]; Englezos v Secretary, Department of Social Services [2023] FCA 31 at [53].
The merits issue will often work against an applicant for an extension of time as an extension is unlikely to be granted where there are no reasonable prospects of the underlying application being successful.[42] Nevertheless, the issue can work in favour of an applicant where, assessed impressionistically, the applicant’s case is seen to be strong.[43]
[42] Franklin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 18 at [25]; Wekerle v Department of Home Affairs [2020] FCA 1300 at [7].
[43] SZUTY v Minister for Immigration and Border Protection (No 2) [2016] FCA 289 at [53] per Katzmann J: “… a strong case will weigh heavily in the applicant's favour”.
In this proceeding, no submissions were made concerning, and the material before me did not enable even an impressionistic assessment of, the strength of the applicant’s underlying case. In these circumstances, in deciding whether to grant the extension application, I do not attribute any weight to this particular consideration.
Conclusion
The applicant’s delay in lodging an application for review of the respondent’s 19 April 2022 decision was significant in circumstances where I was not satisfied that the explanation for the delay was adequate.
It was in that context that I decided to refuse to grant the extension sought by the applicant.
I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the written reasons for the decision of Senior Member C. J. Furnell
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Associate
Dated: 17 March 2023
Date of interlocutory hearing: 2 March 2023 Counsel for the Applicant: Shane Dawson Solicitors for the Applicant: Angela Sdrinis Legal Counsel for the Respondent: Mark Seymour Solicitors for the Respondent: McInnes Wilson Lawyers
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