Poloai and Australian Postal Corporation
[2007] AATA 1512
•6 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1512
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2006/1696
GENERAL ADMINISTRATIVE DIVISION ) Re LUAFA POLOAI Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member Date 6 July 2007
PlaceSydney
Decision The application for extension of time to lodge an application for review at the AAT is granted, and the time extended to 27 July 2007. ...............[sgd]..........................
Ms G Ettinger
Senior Member
CATCHWORDS
Extension of time – Applicant suffered injury at work in 2002 – liability for compensation had been accepted - Applicant was later found not to be suffering further compensable effects of the injury – pre-existing degenerative condition – District Court proceedings commenced, and AAT proceedings withdrawn due to incorrect advice of a solicitor – problems with legal advice – new legal advisors have sought extension of time – Applicant did not rest on her rights – Respondent knew at all times that she was contesting the withdrawal of benefits – extension of time granted.
Administrative Appeals Tribunal Act 1975 s29(7)
Telstra Corporation Ltd v Flynn (2002) 55 NSWLR 303
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Re Young and Telstra Corporation (1993) 32 ALD 307
Comcare v A’Hearn (1993) 45 FCR 441
Delahunty v Comcare [2003] AATA 1148
Hartley v Birmingham City District Council [1992] 2 All ER 213
Stollznow v Calvert [1980] 2 NSWLR 749
Jess v Scott & Others (1986) 12 FCR 187
Secretary, Department of Social Security v Van Den Boogaart (1995) 37 ALD 619
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207
Re Petrou and Australian Postal Corporation (1992) 25 ALD 407
Re El Salameh and Australian Postal Corporation (AAT 8523, 26 June 1991)
REASONS FOR DECISION
6 July 2007 Ms G Ettinger, Senior Member
1. The Applicant, Ms Luafa Poloai who has been working at Australia Post since 1999, injured herself at work in a fall from a stand-on electric pallet jack on 2 May 2002. She consulted her doctor on the same day, and made a claim for compensation. Liability was accepted by the Respondent, Australia Post, for “soft tissue injury to back and bottom”. However, in a reviewable decision dated 3 June 2003, the Delegate found Ms Poloai to no longer be entitled to payments of compensation. The Delegate varied the decision on 10 July 2003 to include a denial of liability for permanent impairment.
2. Ms Poloai consulted a solicitor in the second half of 2002, and the evidence indicates that she has had a series of difficulties in obtaining the correct legal advice. This is her third application for an extension of time. The first application was granted by consent of the parties in April 2004, the second dated August 2006 was refused by the Tribunal because the Applicant had taken an irrevocable election to file for common law damages in the District Court, and was therefore precluded from bringing a claim for permanent impairment in this Tribunal because she had withdrawn her claim before it was heard (Telstra Corporation Ltd v Flynn (2002) 55 NSWLR 303). The common law claim was dismissed, and she is accordingly now precluded from claiming for permanent impairment in this Tribunal.
3. Ms Poloai can only claim for weekly benefits and medical expenses in this Tribunal if the extension of time claim is granted.
4. I have decided that the preferable decision is to permit an extension of time for Ms Poloai to claim before this Tribunal. My reasons follow.
ISSUE BEFORE THE TRIBUNAL
5. The issue before the Tribunal was whether the discretion pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 should be exercised to permit an extension of time for Ms Poloai to lodge a claim against the decision of Australia Post.
LEGISLATION
6. Section 29(7) of the Administrative Appeals Tribunal Act 1975 reads:
The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision including a decision made before the commencement of this section.
CONSIDERATION OF THE MATTER
7. Mr Heazlewood of counsel who appeared for the Applicant prepared a large folder of documents with regard to the progress of the various actions lodged on Ms Poloai’s behalf. This also included affidavits of Ms Poloai’s current solicitor who has been representing her since approximately June 2006 (Exhibit A1). He also tendered an incomplete file relating to the work of the previous solicitor which contained some file notes documenting Ms Poloai’s dissatisfaction with certain aspects of his work, and the progress of the matter (Exhibit A2). He indicated further material was available if it was required.
8. Ms Poloai was cross-examined by Ms Henderson of counsel for the Respondent. I noted that she said that she was not able to recollect much of what had occurred over the five years since her accident. She did not recall making a claim for compensation, although the documentary evidence shows she did make an application for compensation, and that she was paid compensation until May 2003 as a result of the May 2002 injury. She did not remember the names of the doctors who examined her.
9. Mr Heazlewood submitted that the Respondent had, on 14 April 2004, consented to an application made out of time, which was granted by the Tribunal. He noted that the reason this matter did not proceed was because the Applicant, due to receiving incorrect legal advice regarding the lodging of a claim in the District Court, had, after lodging her application to the AAT on 31 March 2004, discontinued the application on 27 April 2005.
10. Ms Poloai’s application to the District Court was commenced on 29 April 2005 and dismissed on 24 March 2006 after the Respondent raised the statutory defence pursuant to section 45 of the Safety Rehabilitation and Compensation Act 1988 (the 1988 Act).
11. Ms Poloai then lodged an application for extension of time at this Tribunal on 21 March 2006; that application was dismissed on 30 August 2006 due to the principles established in Telstra Corporation Ltd v Flynn. Ms Poloai is accordingly precluded from claiming for permanent impairment in this Tribunal pursuant to sections 24, 25 and 27 of the 1988 Act.
12. A period of time elapsed before the Applicant lodged another claim in the Tribunal on 4 December 2006. A directions hearing took place on 2 March 2007 in which Senior Member Allen of the Tribunal directed that documents for preparation of the case be filed and served within a certain time.
13. I am mindful there is a large body of case law with regard to the discretion to extend time.
14. In considering whether the discretion to grant the application for an extension of time for Ms Poloai to lodge a claim should be exercised, I am mindful of the principles to be taken into account, which have been enunciated clearly in cases such as Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 and Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. They are:
a) prima facie proceedings should not be commenced out of time unless the Applicant provides an ‘acceptable explanation of delay’ and can establish that it would be ‘fair and equitable’ to extend time in the circumstances pertaining;
b) actions taken by the Applicant to make the decision-maker aware that previous decisions should not be regarded as final;
c) prejudice to the Respondent;
d) prejudice to others;
e) the merits of the application;
f) fairness between the Applicant and persons in similar positions to the
Applicant and public interest.
Prima facie proceedings should not be commenced out of time
15. Prima facie proceedings should not be commenced out of time. The time limit is set to ensure certainty for all parties. I note also however, that workers compensation legislation is beneficial legislation, and am mindful that this has been recognised by the Tribunal at various times, and was specifically emphasised by O'Connor J in Re Young and Telstra Corporation (1993) 32 ALD 307. In Re Young her Honour affirmed that both the Administrative Appeals Tribunal Act 1975 and the 1988 Act, are beneficial legislation.
16. Her Honour stated at 309:
“In terms of the time limit provided under section 62(3)(b) of the Act there is a discretion to extend time to the applicant at any time before or after the time limit has expired. It seems to me that this is indicative of Parliament's intention to facilitate access to review for the applicant and reflects the beneficial nature of the policy underlying the Act. Time limits can also be construed as being a benefit to the applicant as well as to the respondent in that they help to ensure the process of reconsideration takes place in a timely fashion and that the applicant moves as quickly as possible through the procedural stages.”
17. I turn then to consider any cause and explanation for Ms Poloai’s delays; I noted Mr Heazlewood’s submissions that Comcare v A’Hearn (1993) 45 FCR 441 has modified the propositions made in Hunter Valley, to the extent that an acceptable explanation for delay is no longer a pre-condition to granting an extension. He also submitted that an unduly strict approach should not be taken because the 1988 Act is beneficial legislation, and it may otherwise result in an unjust outcome. (Delahunty v Comcare [2003] AATA 1148 and Re Young and Hartley v Birmingham City District Council [1992] 2 All ER 213). He submitted that the NSW Court of Appeal had held in Stollznow v Calvert [1980] 2 NSWLR 749, (approved in Jess v Scott & Others (1986) 12 FCR 187 and Comcare v A’Hearn), that the blamelessness of a plaintiff personally for delay is a fact relevant to be considered, and the fault of a plaintiff’s solicitor in causing delay, should not, as a matter of course, be attributed vicariously to the plaintiff. In this case, he said that it was clear Ms Poloai, who is an ordinary citizen (with no knowledge of legal affairs, he implied), left the matter in the hands of her legal advisors, and authorised them to take the action they took.
18. I am mindful that there is a presumption that time limits have been inserted into legislation for a good reason, and prima facie must be adhered to. In the case of extension of time applications, they have been extended to 60 days in place of the normal 28 days permitted for claims to be made for review of other decisions. Ms Poloai clearly has not adhered to the statutory time limits with regard to her claims, although I am mindful of the reasons for some of the delays. I have noted that the Respondent does not take issue with any delays in 2002, and noted also that Ms Henderson stated in her Chronology that “Australia Post gave an undertaking that in the event the applicant lodged a further application in the Tribunal it would not claim that it suffered any prejudice due to the applicant’s failure to commence or pursue Tribunal proceedings during the period commencing 29 April 2005 and ending 24 March 2006”. Ms Henderson did however rely on a short period of delay between the outcome of the extension of time which was refused by the Tribunal on 30 August 2006 (and related solely to the permanent impairment issues), and 4 December 2006, which was the date Ms Poloai lodged a new application.
19. I noted that Ms Poloai commenced proceedings in N2004/411 and N2004/412 on 5 April 2004 for review of the 10 July 2003 reviewable decision. The proceedings were commenced outside the time frame allowed. Ms Poloai was represented by her former solicitors, and continued to be, until she sought other legal advice from her present solicitors in June 2006 following the erroneous advice and actions taken on her behalf. I noted further that the application for extension of time in 2004 was not objected to by the Respondent and was granted by consent of the parties. These proceedings were then withdrawn on the advice of Ms Poloai’s legal advisors, and proceedings commenced in the District Court in April 2005. Australia Post filed a Defence in the District Court, and moved for dismissal of the Statement of Claim which was made on 9 March 2006.
20. Australia Post undertook not to claim that it suffered any prejudice due to the Applicant’s failure to commence or pursue Tribunal proceedings during the period 29 April 2005 (lodgement of District Court proceedings) and 24 March 2006.
21. On 22 March 2006 Ms Poloai filed at the Tribunal for an extension of time to lodge a claim for permanent impairment pursuant to sections 24, 25 and 27 of the 1988 Act. It is common ground that the Tribunal dismissed the application on 30 August 2006 as the Applicant was precluded from claiming for compensation pursuant to sections 24, 25, and 27 due to the irrevocable election she made when she was advised to withdraw her Tribunal proceedings and commence District Court proceedings.
22. The Applicant’s present application before the Tribunal to extend time is dated 4 December 2006.
23. I am satisfied that the delays which have been caused in relation to Ms Poloai’s claims for compensation have been due to the incorrect information and advice she was given by her earlier legal advisors. File notes and other documents in Exhibits A1 and Exhibit A2, indicate that she was in touch regularly with her solicitors, and that there were occasions when she telephoned several times before receiving a reply or being able to consult anyone in the firm.
24. I am satisfied that ultimately Ms Poloai took action right from the day when she fell on 2 May 2002. She attended her doctor on the same day, and underwent tests. She consulted her legal advisors, who first took instructions on 25 September 2002. She has relied on the legal advice as she is entitled to do. It was through the errors of her legal advisors that her case went through the various stages it did. I am satisfied with the explanations for the delays which have occurred, and mindful that the NSW Court of Appeal held in Stollznow v Calvert referred to by Mr Heazlewood in his submissions, that the blamelessness of a plaintiff personally for delay is a fact relevant to be considered and the fault of a plaintiff’s solicitor in causing delay, should not, as a matter of course, be attributed vicariously to the plaintiff.
25. I am mindful of Ms Henderson’s submission, citing Secretary, Department of Social Security v Van Den Boogaart (1995) 37 ALD 619 in which it was stated that the matter which most strongly weighs against the grant of an extension of time is the lack of a satisfactory explanation for the delay.
26. I am however satisfied with Ms Poloai’s explanation for the delays which were due to her legal advisors’ actions and inaction, as discussed in the paragraphs above.
Actions taken by the Applicant to make the decision-maker aware
27. Mr Heazlewood submitted that the Respondent was at all times aware of what Ms Poloai was doing with her claim except for a short period in 2006, and that this was due to errors by her solicitors. He submitted that the Applicant had at all times continued to make the Respondent aware that she contested the finality of its decision by submitting doctors’ certificates and other documentation.
28. Ms Henderson submitted that the Respondent did not consider Ms Poloai had rested on her rights in 2002, but that after the decision of the Respondent was made in 2003, she did not challenge that until 2004. Ms Henderson also submitted that there was a period on 2006 when the Respondent was not aware of the Applicant’s actions in pursuing her claim.
29. I am satisfied from the chronologies before me, and the history of the matter which I have outlined in the heading above under ‘explanations for delay’ that the Respondent was continuously aware of what Ms Poloai was doing with her claim. The Respondent was aware of the case the Applicant lodged in the Australian Industrial Relations Commission. The Respondent agreed to an extension of time in a consent decision in 2004, and the 2006 refusal to extend time was made on legal grounds because of the effects of the common law action and incorrect legal advice to Ms Poloai by her legal advisors. I do not find the short delay in lodging a claim in 2006 material. It should not weigh against the discretion to extend time.
Prejudice to the Respondent and to Others
30. Mr Heazlewood submitted that there was no prejudice resulting from the delay. He cited Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, where I noted the Court stated that “the delay resulting from commencing proceedings after a limitation period has expired gives rise to a presumption of prejudice to the potential defendant. If the effect of granting the extension would result in actual significant prejudice to the potential defendant, then the application should be refused.” Mr Heazlewood also cited Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 in relation to prejudice, submitting there was no actual prejudice to the Respondent in this case.
31. Ms Henderson relied on Re Petrou and Australian Postal Corporation (1992) 25 ALD 407 in regard to prejudice to the Respondent. She also noted that DP McMahon (as he then was), stated in Re El Salameh and Australian Postal Corporation (AAT 8523, 26 June 1991) that:
“Any delay, of course, is prejudicial. The more time that elapses between the events to be examined and the date of hearing, the more difficult it is to present meaningful evidence … Even if this were not so, however, the mere absence of prejudice would not be enough to justify the grant of an extension. … Courts and litigants ought as far as possible to assist litigants and the profession in the timely and efficient disposition of cases. … In circumstances where the respondent had no communication from the applicant for over 2 years, the respondent ought to be entitled to consider that the matter closed, except in the most unusual circumstances.”
32. Ms Henderson also referred me to Brisbane South Regional Health Authority v Taylor, relying on the case, that the longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time the cause of action arose. She also submitted that the final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.
33. I was mindful of the submissions of the parties in relation to actual and presumptive prejudice. I was also mindful of Ms Henderson’s submission that given the way Ms Poloai presented during cross examination at the hearing, and given her apparent lack of recall of dates and events, there would be difficulty obtaining relevant evidence from her should the matter go to hearing. This, and the difficulty in obtaining the evidence of witnesses to the accident, would cause prejudice to the Respondent she submitted.
34. I was satisfied that this was not a case where the Applicant had rested on her rights, and had not regularly been in touch with her former solicitor, notwithstanding his incorrect advice which has prejudiced her. I was mindful that DP McMahon referred in El Salameh, to lack of communication by the Applicant to the Respondent for over two years, and consider that El Salameh can be distinguished on the basis that the progress of Ms Poloai’s case was constantly before the Respondent.
35. I too observed Ms Poloai in the witness box, but am satisfied that she will be able to communicate her situation adequately at a hearing. We saw glimpses of that at the hearing of extension of time. There is no doubt that any delay creates a potential for prejudice, but I do not accept that the difficulties caused by this delay, a case where there is a lot evidence, including medical evidence already in place, justifies a finding of prejudice to the Respondent to the extent that the extension of time should not be granted.
Merits of the application
36. Mr Heazlewood submitted that the claim had originally been accepted in June 2002, and if there was also a degenerative factor as opined by various doctors, then the Applicant’s back condition could only have deteriorated by now.
37. Ms Henderson submitted that notwithstanding the claim had originally been accepted, there had been no major intervention, simply some physiotherapy, visits to a specialist, and the examination by Dr Whittaker a year later. She indicated there has been no recent medical evidence, the most recent being in conjunction with the District Court proceedings in 2005.
38. I am mindful the acceptance of the claim in 2002 was on the basis that it was a soft tissue injury to the back and bottom. I am mindful of the medical evidence which also includes reports of Ms Poloai’s treating neurologist, Dr Griffith who examined the Applicant on referral from her general practitioner Dr Au-Yeung back in July 2002. He saw Ms Poloai a number of times, and commented on Dr Whittaker’s report. In making a decision on whether to grant an extension of time to Ms Poloai to lodge her claim, I am not required to undertake a full assessment of the medical evidence. However, from what I have read, I am satisfied that Ms Poloai’s application is not without merit and may have a chance of success if heard at the Tribunal. Having said that, if she does not succeed, at least she will have had an opportunity of putting her case.
Fairness between the Applicant and persons in similar positions to the Applicant, and public interest
39. I noted that Ms Henderson did not press any considerations of fairness as between the applicant and other persons in like positions, noting that the fact situation in Hunter Valley made the fairness between the Applicant and persons in similar positions more relevant than in this case. She did submit however that if the extension of time to lodge an application were to be granted to Ms Poloai, she would be taking the hearing date which could have been allocated to another applicant. Mr Heazlewood rebutted that submission, saying that if Ms Poloai had been in time, she would in any case have had her own hearing date.
40. In considering fairness between the Applicant and others, I did not see any merit in Mr Heazlewood’s submission that the Australia Post’s Annual Report indicated the organisation had 34,842 employees in 2005/6.
41. I do not think that fairness between the Applicant and others is a significant factor to be taken into account in this case, and there is no particular public interest to be considered apart from the timely resolution of litigation.
CONCLUSION
42. I am mindful that each extension of time case is decided on its merits taking into account the principles as enunciated in Hunter Valley, Comcare v A’Hearn, and similar cases.
43. Accordingly, in summary:
·The Applicant's Conduct - Actions taken by the Applicant to make the decision-maker aware - I consider that Ms Poloai, a postal worker with no legal qualifications or knowledge, has not rested on her rights and has prosecuted her claim. She suffered an injury in 2002, and consulted a solicitor in 2002, and was at the relevant times advised and guided by her legal advisors, albeit unwisely at times. I am satisfied that, notwithstanding, Comcare v A’Hearn has modified the propositions made in Hunter Valley, to the extent that an acceptable explanation for delay is no longer a pre-condition to granting an extension of time, in this case there was a satisfactory explanation given for the delays which occurred. I am satisfied that the Respondent was involved at the Tribunal and the District Court at the relevant times, and aware of Ms Poloai’s action to appeal against the findings made against her.
·I am mindful that the NSW Court of Appeal held in Stollznow v Calvert that the blamelessness of a plaintiff personally for delay is a fact relevant to be considered, and the fault of a plaintiff’s solicitor in causing delay, should not, as a matter of course, be attributed vicariously to the plaintiff.
·The Merits of the Claim – I am satisfied that Ms Poloai’s application is not without merit and that she may succeed when she is heard at the Tribunal.
·Prejudice to the Respondent - I am satisfied that the Applicant will be able to communicate her situation adequately at a hearing. There is no doubt that any delay creates a potential for prejudice, but I do not accept that the difficulties caused by the incorrect advice Ms Poloai received should be borne entirely by her. I do not find that any prejudice suffered by the Respondent is of such magnitude that it should preclude Ms Poloai an opportunity of putting her substantive case before the Tribunal.
·Fairness in Relation to Others - I consider that fairness in relation to other claimants, and taking the wider public interest into consideration is not a big issue in this case.
·In Conclusion – The general question I have considered is what is fair and just in all the circumstances, taking into account the principles in Hunter Valley and Comcare v A’Hearn. I am satisfied that the justice of the case requires the discretion to extend time to Ms Poloai to lodge an application for review in this Tribunal be exercised in her favour.
44. Additionally I have noted that whilst Ms Poloai indicated that her depression has arisen as a result of her fall in 2002, she has not made a claim to the Respondent about it. She remembers seeing a doctor a couple of years ago, who appears from the records to have been Dr K Lovric, a psychiatrist. I am mindful that unless Ms Poloai lodges a claim with the Respondent, and unless there is a reviewable decision on the depression, this Tribunal would not have jurisdiction to hear her on that.
DECISION
45. The application for extension of time to lodge an application for review at the AAT is granted, and the time extended to 27 July 2007.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed: ..............[sgd]..............
AssociateDate of Hearing 18 June 2007
Date of Decision 6 July 2007
Counsel for the Applicant Mr J F Heazlewood
Solicitor for the Applicant Mr M Jokovic, Michael Jokovic & Associates
Counsel for the Respondent Ms R Henderson
Solicitor for the Respondent Mr G Jones, Graham Jones Lawyers
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