Overstead and Australian Postal Corporation (Compensation)

[2016] AATA 325

Overstead and Australian Postal Corporation (Compensation) [2016] AATA 325 (15 April 2016)

Division	GENERAL DIVISION
File Number(s)	2015/6328
Re	Troy Overstead
APPLICANT
And	Australian Postal Corporation
RESPONDENT

REASONS FOR DECISION

Tribunal	Egon Fice, Senior Member
Date of Decision	15 April 2016
Date of Reasons	20 May 2016
Place	Melbourne

The Tribunal refuses the application under section 29(7) of the Administrative Appeals Tribunal Act 1975 for an extension of time to lodge this application for review of a decision.

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Egon Fice, Senior Member

Catchwords

WORKERS’ COMPENSATION – interlocutory application – extension of time to lodge application for review – whether there is an explanation for delay – whether a party would be prejudiced by extension of time – whether there are reasonable prospects of success – whether extending time would be fair to persons in similar positions – application refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Comcare v A’Hearn (1993) 45 FCR 441

REASONS FOR DECISION

Egon Fice, Senior Member

1. On 10 November 2014 Mr Troy Overstead, an employee of Australia Post, completed a Workers Compensation claim stating he had suffered a psychological injury, severe stress, anxiety, insomnia and depressed mood and depression.  He claimed the injury occurred on 6 June 2014 at 6:30 a.m.  There was no evidence that Mr Overstead had sought medical intervention for the claimed injury prior to 14 October 2014, when he obtained a medical certificate from Dr Richard Wong.  That medical certificate states Mr Overstead suffered severe stress, anxiety, insomnia, depressed mood due to alleged ongoing harassment and bullying behaviour in the workplace.  Dr Wong diagnosed reactive anxiety, stress and depression.

2. In a letter dated 3 February 2015, the claims manager for Australia Post notified Mr Overstead that his claim was rejected.  Dissatisfied with that determination, Mr Overstead sought a review of that determination in accordance with

   
    

   s. 62 (3) of the Safety, Rehabilitation and Compensation Act, 1988 (Cth) (SRC Act).

3. On 28 April 2015 a Reconsideration Delegate with Australia Post notified Mr Overstead that he was not eligible for compensation benefits because his claim fell under the exclusionary provision found in s. 5A(2) of the SRC Act.  Mr Overstead then lodged an application with the Tribunal on 4 December 2015 seeking an extension of time to apply for review of a decision.  That is because the time within which an application must be lodged with the Tribunal following a reviewable decision given to a person under the SRC Act is 60 days (s. 65(4) SRC Act).  Assuming Mr Overstead received a copy of the reconsideration decision on or about 30 April 2015, he was required to lodge his application for review by the Tribunal no later than 29 or 30 June 2015.  In other words, Mr Overstead was some five months out of time for lodging an Application for Review.

4. Section 29 (7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) provides the Tribunal with a discretion to extend the time for making an application where it is satisfied that it is reasonable, in all the circumstances, to do so.

5. I heard Mr Overstead’s application for an extension of time to lodge his application with the Tribunal on 15 April 2016. At the conclusion of the hearing, I handed down my decision refusing Mr Overstead’s application for an extension of time under s. 29(7) of the AAT Act. I provided the parties with oral reasons for my decision. Mr Overstead then requested that I provide to him written reasons for my decision. These are those reasons.

   EVENTS GIVING RISE TO THE CLAIM

   Mr Overstead’s version of events

6. On 6 June 2014 a confrontation took place between Mr Overstead and a Mr Graham Goodwin, a manager at the Deepdene mail delivery centre.  Mr Goodwin came up to Mr Overstead and asked him if he had cut the sleeves out of his shirt.  Mr Overstead said he had.  He said he had been doing this for the previous five years claiming that at one point he sought medical advice to minimise effect of his excessive perspiration.  Nevertheless, Mr Goodwin told him to go and change his shirt immediately.  Mr Overstead also claimed Mr Goodwin stepped into his personal space, shouted at him and intimidated him by using his superior height.  He claimed this culminated in physical contact which he explained was an attempt to regain his personal space by fending off Mr Goodwin.  Despite Mr Overstead telling Mr Goodwin that he did not carry a spare shirt with him and that he would need to go home, Mr Goodwin insisted that he change his uniform.  Mr Overstead told Mr Goodwin he did not feel well and he left.

   Australia Post’s version of events

7. On 6 June 2014 at about 6:30 a.m. Mr Overstead failed to treat Mr Goodwin with courtesy and respect.  When Mr Goodwin approached Mr Overstead regarding the state of his Australia Post corporate uniform, Mr Overstead verbally abused him and told him to piss off and to fuck off and get out of my way.  When Mr Overstead was asked to discuss the situation in Mr Goodwin’s office, Mr Overstead said he would get a medical certificate and that he was going home sick.

   BASIS FOR GRANT OF EXTENSION OF TIME

8. Adherence to time limitations for the lodgement of an application seeking review of a decision cannot be taken lightly.  As McHugh J said in the High Court of Australia case Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, at 551:

   For nearly 400 years the policy of the law has been to fix definite time limits for prosecuting civil claims.  While applicant for an extension of time may satisfy conditions for the exercise of discretion, nevertheless, the applicant bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.

   His Honour then said, at 553-554:

   In connecting limitation periods, legislatures have regard to all these rationales.  A limitation period should not be seen therefore as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society.  It represents the legislature’s judgement that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period my often result in a good cause of action being defeated… A limitation provision is the general rule; and extension provision is the exception to it.  The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case… The discretion to extend should therefore be seen as requiring the applicant 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 in 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.

9. While McHugh J was referring to the courts, the same principles apply to this Tribunal.  The principles and bases upon which discretion should be exercised are drawn from civil cases heard by the courts, those principles applying equally to the Tribunal which is required to act judicially.

10. There are two cases which are generally followed by the Tribunal when considering whether an extension of time should be granted.  The first is the Federal Court of Australia decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley Developments) and the second, a Full Court of the Federal Court of Australia (Black CJ, Gray and Burchett JJ) decision in Comcare v A’Hearn (1993) 45 FCR 441.

11. Wilcox J in Hunter Valley Developments reiterated that the prima facie rule was that proceedings commenced outside the stipulated period would not be entertained (at 348-349).  An applicant should provide an acceptable explanation for the delay.  A material factor against the grant of an extension is any prejudice which the respondent may suffer as a result of the delay.  The merits of the substantial application are properly to be taken into account.  Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the exercise of the discretion.

    Explanation for delay

12. Ms Dimitria Panagopoulos, a solicitor who acted on behalf of Mr Overstead, said in written submissions that the explanation for the delay in lodging an application with the Tribunal was that Mr Overstead suffered anxiety and depression making it difficult for him to undertake the steps necessary to seek review.  She said Mr Overstead had been incapacitated for work due to his condition and had been on long-term leave without financial support.  Ms Panagopoulos submitted that Mr Overstead did not merely rest on his rights.

13. Ms Panagopoulos also referred to report prepared by Ms Dianne Perrett-Abrahams which is dated 11 February 2016.  Ms Perrett-Abrahams is a psychologist.  She said Mr Overstead first consulted her in November 2015 following a referral from his General Practitioner, Dr Richard Wong.  Her report sets out the detail of the incident as claimed to have occurred by Mr Overstead on 6 June 2014, and she diagnosed Mr Overstead is suffering from adjustment disorder with severe depression and severe anxiety. This diagnosis was made about 17 months after the claimed injury date. 

14. Mr Overstead also completed an incident report for Australia Post which is dated 29 October 2014. Prior to 14 October 2014, when Mr Overstead obtained a medical certificate, the only medical consultation appears to be a hand written note from a Dr Ravi Pachauri which is dated 12 June 2014.  It simply states that Mr Overstead suffered from general anxiety disorder and had sought help from a psychologist.  There is no mention of the claimed incident which occurred on 6 June 2014.

15. Additionally, although Mr Overstead appears to have told Ms Perrett-Abrahams that after returning to work he was immediately stood down on full pay and informed that an investigation was pending, it appears Mr Overstead did not explain that the investigation he referred to was a disciplinary enquiry into alleged serious breaches by Mr Overstead of Australia Post’s code of ethics.  The letter to Mr Overstead advising him of the disciplinary enquiry is dated 10 June 2014. 

16. Furthermore, despite the claim Mr Overstead now makes regarding his mental condition following the incident on 6 June 2014, there was in evidence a letter dated 11 June 2014 from Mr Overstead responding to the letter informing him of a disciplinary enquiry.  The letter is articulate and shows no signs of any mental condition.  In fact Mr Overstead sets out his recollection of the precise words used by each of the parties in the course of the incident.  He also sets out his view about Australia Post Ethical Standards Policy, and alleges that Mr Goodwin breached a number of those standards.

17. For the purposes of the disciplinary enquiry, an interview was conducted with Mr Overstead on 13 June 2014.  He attended with a support person, a union organiser.  Mr Goodwin was interviewed on 16 June 2014.  Some seven other witnesses were also interviewed in the course of the disciplinary enquiry.  The disciplinary enquiry concluded that the allegations against Mr Overstead were proven and that his conduct constituted serious misconduct under Australia Post’s ethics policy. 

18. The enquiry officer determined that Mr Overstead should receive warning counselling.  Mr Overstead was informed of this finding on 25 June 2014.  In addition, Mr Overstead received a letter from the area manager, Mr Lee Hopkins, which is dated 27 June 2014, advising him that he was required to attend a warning counselling interview on 2 July 2014.

19. In another document which appears to have been prepared by Mr Overstead, as it is signed by him, dated 22 January 2015, he states that he returned to work on 27 June 2014.  It is an extensive and coherent document.  It followed a request from an Australia Post claims manager dated 26 November 2014 for more information about the claimed incident because that there was insufficient evidence to make a decision on liability.

20. In the concluding paragraph of the reconsideration decision which is dated 28 April 2015, the reconsideration delegate set out Mr Overstead’s rights of review by the Tribunal and that a period of 60 days was permitted to make that application, the period expiring on 27 June 2015.

21. Mr Overstead wrote to the Senior Claims Manager of Australia Post on 29 September 2015 requesting copies of all documentation held by Australia Post regarding his Workers’ Compensation Claim.  That raises the question why he could not have done that at an earlier stage, for example, immediately following the reconsidered determination.  Mr Overstead appeared capable of providing significant information, including an extensive chronology of events, for the purposes of having the decision reconsidered.  There was no evidence before me regarding Mr Overstead’s psychological condition between the end of April 2015 and the end of June 2015.  He was not referred to Ms Perrett-Abrahams until 16 November 2015.

22. It should be apparent from the documents to which I have referred above that there appear to be many more reasons for the delay in lodging an application with the Tribunal for review than were suggested by Mr Overstead or Ms Panagopoulos.  Of particular concern to me is the lapse of time between the injury; the provision of the incident report (which, probably erroneously, states that the dated the incident was 6 July 2014); and the lodgement of the compensation claim (which also states that the injury occurred on 6 July 2014).  That delay was a period of some four months.  In that intervening period, a disciplinary enquiry was conducted and a decision made finding that Mr Overstead had breached a number of Australia Post’s ethical behaviour provisions. 

23. Viewed in light of that information, I find that Mr Overstead’s explanation for the delay in lodging his application for review by this Tribunal is not satisfactory.  The evidence discloses that he was clearly capable of lodging that application within the 60 day period required by the SRC Act.  In fact no explanation was given for the four month delay before he lodged his compensation claim following the incident.  He did not have medical treatment for his claimed mental injury, which he said occurred on 6 June 2014, until at least October 2014.  Despite having medical treatment, he was plainly capable of preparing documents and materials for his request to have his claim reconsidered following the first rejection.

    Prejudice to Australia Post

24. Ms Panagopoulos submitted that Australia Post had not suffered prejudice by a delay of five months following the delivery of the reviewable decision.  She noted that all possible witnesses to the incident had been interviewed (for the purposes of the disciplinary enquiry) within one month of the event Mr Overstead alleges caused his injury.

25. While I accept what Ms Panagopoulos states about witness statements having been obtained from numerous witnesses, it is apparent that only three witnesses overheard a substantial part of what was said between Mr Goodwin and Mr Overstead (Ms Prue Hanlon, Mr Michael Russo and Mr Ron Chan).  The written statements which were in evidence are scant to say the least.  While it is clear that there was a disagreement between Mr Goodwin and Mr Overstead, those witnesses who observed the demeanour of the protagonists all indicated that that the inappropriate statements and behaviour seemed to be attributed to Mr Overstead. There is, however, at least some suggestion of the confrontation taking place in a very limited space thereby placing the two protagonists in close proximity. 

26. There can be no doubt that those witnesses, if this matter went to a hearing, would need to be seriously cross-examined about their recollection of the events as well as what was in their written statements.  Given the passage of time, it is unlikely that such
    cross-examination would be productive.  Even more significantly, there is very little if anything in the witness statements about the effect that the altercation had on Mr Overstead other than the fact that he was obviously angry.

27. Overall, it seems to me that the applicant may suffer the greater degree of prejudice due to the passage of time since the incident occurred.  In any event, I am not prepared to find that Australia Post would suffer serious prejudice even though the evidence which would be given at a hearing by witnesses would probably be seriously degraded.

    Merits of the claim

28. In my opinion, it is this consideration which should be given the greatest weight in determining whether an extension of time should be granted in the circumstances of this case.  I am very aware of the fact that I should not treat an extension of time application as a hearing of the substantive matter.  Nevertheless, I need to examine, as I have, all of the material which has been lodged with the Tribunal in order to determine whether, if favourable findings were made for the applicant on the evidence before me, he would have reasonable prospects of success. 

29. In my opinion, there is insufficient material before me to an able Mr Overstead to establish a causative link between the incident which took place on 6 July 2014 and his claimed mental injury.  To satisfy the definition of an injury in the SRC Act, the evidence must be sufficient to enable a finding to be made that the injury arose out of, or in the course of, the employee’s employment.  Furthermore, the injury definition excludes circumstances where the injury or aggravation of an existing mental injury was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

30. The difficulty for Mr Overstead in this case is the time delay between him having suffered the claimed mental injury and the lodgement of an incident report and claim for compensation.  In the four month intervening period, Mr Overstead was the subject of a disciplinary enquiry which found against him.  There was no evidence that he sought medical intervention until well after the incident occurred.  In fact that intervention occurred after the disciplinary enquiry.  No reasons appear in any of the material for the delay in Mr Overstead lodging that claim and seeking medical intervention in the period following the incident in which he claimed the injury occurred. 

31. It would be difficult to infer from the material that Mr Overstead’s mental injury precluded him from lodging a compensation claim and/or seeking medical intervention. Further, such an inference would be inconsistent with the fact that he appeared to be able to make submissions in the course of the disciplinary enquiry, including written submissions which are plainly coherent and which do not evidence any signs of mental distress.  In fact there was no evidence that he sought assistance from a psychologist until November 2015 following a referral by his General Practitioner. 

32. Even if Mr Overstead, as Ms Perrett-Abrahams said in her report of 11 February 2016, now suffers from adjustment disorder with severe depression and severe anxiety, there is no contemporaneous or nearly contemporaneous evidence to support the connection between his mental condition subsequently diagnosed and the event which took place on 6 July 2014 other than what Mr Overstead claimed and told Ms Perrett-Abrahams.  To have some chance of succeeding in his claim, Mr Overstead would require such contemporaneous or near contemporaneous evidence, particularly as there have been a number of intervening events which could also account for his current medical condition.

    Fairness to persons in likewise position

1. Mr P Mentor, who appeared on behalf of Australia Post, also submitted that an extension of time would not be fair to other persons in similar positions and that it was not in the public interest in these circumstances to grant the extension of time.  Given the circumstances of this case, I accept that submission.  It is not in the public interest to permit claims with little or no prospect of success to proceed where time limits imposed on such claims have not been met.

   CONCLUSION

2. For the reasons I have explained above, I have found that it is not reasonable in the circumstances of this case to extend the time for Mr Overstead to make his application for review to this Tribunal.

35.     I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the written reasons herein of Egon Fice, Senior Member

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Associate

Dated   20 May 2016

Date of interlocutory hearing	15 April 2016
Advocate for the Applicant	Dimitria Panaggopoulos
Advocate for the Respondent	Mr Paul Mentor
Solicitors for the Respondent	Clarke Legal