Ocampo v Australian Postal Corporation

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FEDERAL COURT OF AUSTRALIA

Ocampo v Australian Postal Corporation [2022] FCA 789   

Appeal from:  Application for an extension of time within which to appeal: Re Princess Ocampo and the Australian Postal Corporation [2021] AATA 4464
File number: NSD 25 of 2022
Judgment of: SNADEN J
Date of judgment: 8 July 2022
Catchwords: PRACTICE AND PROCEDURE – application for an extension of time within which to appeal from decisions of the Administrative Appeals Tribunal – where tribunal dismissed applicant’s claims under the Safety, Rehabilitation and Compensation Act 1988 (Cth) – extension neither consented to nor opposed – whether applicant has a credible explanation for delay – whether proposed appeal has merit – application granted
Legislation: Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Federal Court Rules 2011 (Cth)
Cases cited: Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Orfali v Chief Executive Officer, Services Australia [2020] FCA 747
Parr v Commissioner of Taxation [2022] FCA 678
Re Wuth v Comcare [2020] AATA 3625
Wuth v Comcare (2022) 174 ALD 472
Division: Fair Work Division
Registry: New South Wales
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 19
Date of hearing: Determined on the papers
Counsel for the Applicant: Mr L Grey
Solicitor for the Applicant: Turner Freeman
Solicitor for the Respondent: HBA Legal

ORDERS

NSD 25 of 2022
BETWEEN:

PRINCESS OCAMPO

Applicant
AND:

AUSTRALIAN POSTAL CORPORATION

Respondent

ORDER MADE BY:

SNADEN J

DATE OF ORDER:

8 JULY 2022

THE COURT ORDERS THAT:

1.The deadline by which the applicant is to file a notice of appeal from the decision of the Administrative Appeals Tribunal in Re Princess Ocampo and the Australian Postal Corporation [2021] AATA 4464 be extended until 4:00pm on 15 July 2022.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

SNADEN J:

  1. The applicant is (or, at the least, was at material times) employed as a “Parcel Post Officer” at the respondent’s “Sydney Parcel Centre” in Chullora, New South Wales. She moves for an extension of time under r 33.13 of the Federal Court Rules 2011 (Cth) so that she might commence in this court an appeal against various decisions of the Administrative Appeals Tribunal (the “AAT”), all of which concerned claims that she made against the respondent under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “SRC Act”) in relation to an injury that she alleges that she suffered by reason of her employment.

  2. The respondent neither consents to nor opposes the granting of an extension.  For the reasons that follow, I am satisfied that an extension of time should be granted and I will make orders accordingly.

  3. My reasons for doing so can (and, in the circumstances, should) shortly be stated.  The criteria to which the court might have regard in considering whether to grant relief of the kind in present focus are notorious and needn’t here be rehearsed in detail.…

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Details
Case
[2022] FCA 789
Decision Date

CaseChat Overview and Summary

Ocampo v Australian Postal Corporation involved the applicant, Princess Ocampo, seeking an extension of time to appeal from the decisions of the Administrative Appeals Tribunal (AAT). The AAT had dismissed Ocampo's claims under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The primary issue before the court was whether the applicant had provided a credible explanation for the delay in lodging her appeal and whether the proposed appeal had sufficient merit to warrant an extension of time. The court also had to consider whether the extension of time was consented to or opposed by the opposing party.

The court examined the affidavit provided by Ocampo, which outlined the reasons for the delay in lodging her appeal. The AAT's decision had highlighted that the applicant had alleged injuries to her cervical spine and left shoulder, but the tribunal found that the evidence did not objectively show a physiological change resulting from these alleged injuries. The court noted the High Court's decision in Military Rehabilitation and Compensation Commission v May, which held that subjectively experienced symptoms without an accompanying physiological change were not sufficient to constitute an injury under the SRC Act. The court assessed Ocampo's affidavit against these legal principles, determining that the explanation provided was credible and that the proposed appeal had sufficient merit. The application for an extension of time was granted, and the deadline for filing the notice of appeal was extended to 4:00pm on 15 July 2022.

The court's decision was based on the credible explanation provided by Ocampo for the delay in lodging her appeal and the merit of the proposed appeal. The extension of time was granted, and the applicant was allowed to proceed with her appeal within the new deadline.

Orders

Orders of the court

1. The deadline by which the applicant is to file a notice of appeal from the decision of the Administrative Appeals Tribunal in Re Princess Ocampo and the Australian Postal Corporation [2021] AATA 4464 be extended until 4:00pm on 15 July 2022.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The affidavit relied upon contains an explanation as to why the applicant did not lodge her appeal within the time limit for which section 44(2A) provides. In order properly to understand it, something must first be said about the AAT’s decision. In affirming the relevant reviewable decisions, the AAT made the following observations (at 16-18 [46], [51]-[52]):It is alleged that the applicant suffered either injury in the primary sense to, or aggravation of, a pre-existing and underlying disease of both the cervical spine and the left shoulder. …In Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468 (May), at [50] to [52], the plurality set out the questions that the Tribunal must resolve in determining whether the applicant suffered from a disease or an injury other than a disease. The first question of course is whether the applicant suffers from an ailment that is defined in the SRC Act. The second is, if so, was that state contributed to in a material degree by the employee’s employment by the respondent. In this case however, the contribution is to a “significant degree”.The High Court held in May that subjectively experienced symptoms such as pain without an accompanying physiological change are not sufficient to amount to either an ailment or an injury for the purposes of the SRC Act. Under the heading, ‘Not sufficient for an employee merely to feel unwell’, the plurality went on to identify the error in the decision of the Full Federal Court, which was the subject of the appeal before them at [57] to [62]:The Full Court concluded that the inquiry demanded by the statutory definition of "injury" was "whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind". To the extent that conclusion suggested that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are sufficient to provide a positive answer to the first or third questions set out above, that conclusion should be rejected.That is because, first, it overlooks that the Act provided that the appellant was liable to compensate in respect of "an injury" and that the focus of the Act is on "an injury".Second, it overlooks that the Act draws an important distinction between "disease" and "injury (other than a disease)" and that "disease" and "injury (other than a disease)" are part of different limbs of the definition of "injury" in s 4(1). Each limb deals with a separate basis for something being an "injury". That is the reason for separate questions.Third, as seen earlier, the word "injury" in "injury (other than a disease)" has a different meaning from the defined term "injury" in s 4(1) – it means "injury" in its primary sense. That necessarily requires consideration of the "precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change".Put another way, the proper construction of the Act recognises that an employee may genuinely complain of being unwell, but, in the context of the "injury (other than a disease)" limb of the definition of "injury", unless that employee can satisfy the tribunal of fact that he or she has suffered an "injury" (in the primary sense of the word), s 14 of the Act will not be engaged.The "nature and incidents of the physiological [or psychiatric] change" will determine whether there was an "injury (other than a disease)". The evidence to be adduced, of course, will vary from case to case and, where appropriate, may take into account common-sense inferences drawn from a sequence of events. To take an extreme example, the dismemberment of a limb involves a physiological change as a matter of common sense. But there must be more than an assertion by an employee that he or she feels unwell. [Emphasis added]If the applicant suffered any symptoms or pain on 6 April 2017 or 21 February 2018, or during her employment, as she alleges, the available evidence does not objectively show that this resulted in a physiological change to the underlying pre-existing pathology in her left shoulder or neck/cervical spine. Dr McGill, Dr Chase, and Dr Dickinson reported that the applicant’s claimed symptoms and restrictions resulted from pre-existing underlying degenerative pathology of the applicant’s cervical spine which has not resulted in physiological change nor been caused or contributed to, to a significant degree, by the performance of the applicant’s duties with the respondent.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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