Priest and Australian Postal Corporation
[2004] AATA 868
•19 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 868
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/286
GENERAL ADMINISTRATIVE DIVISION ) Re GEORGE CLARENCE PRIEST Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal P.J. Lindsay, Senior Member Date19 August 2004
PlaceSydney
Decision The tribunal affirms the decision under review.
..............................................
Senior Member
CATCHWORDS
COMPENSATION – notice to applicant not considered to be a decision – determination by employer of no present liability – reconsideration of determination requested more than five years later - application for extension of time – request refused - decision affirmed
Administrative Appeals Tribunal Act 1975 ss. 3, 37
Safety, Rehabilitation and Compensation Act 1988 ss. 60, 61, 62
Director-General of Social Services v Hales (1983) 47 ALR 281
Australian Postal Corporation v Forgie (2003) 202 ALR 63Re Ransley and Comcare [1999] AATA 988
Comcare v Willems (1996) 43 ALD 253
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Zizza v Commissioner of Taxation 99 ATC 4711
Comcare v A’Hearn (1993) 119 ALR 85
Agar v Australian Postal Corporation (1998) 56 ALD 361
Comcare v Smith [1997] 140 FCAREASONS FOR DECISION
P.J. Lindsay, Senior Member
1. George Priest requested reconsideration by Australia Post of a determination dated 10 December 1997 relating to his claim for compensation in respect of lower back strain. A delegate for Australia Post advised Mr Priest on 17 July 2003 that he had not given sufficient reasons to warrant granting an extension of the 30 day time limit for requesting a reconsideration. Mr Priest has applied to the tribunal for a review of Australia Post’s decision of 17 July 2003.
2. At the commencement of the hearing, Mr Priest’s counsel put his case on an alternative basis. Mr Edwards submitted that Australia Post had failed to carry out a lawful reconsideration of a determination made on 10 November 1997. Mr Priest had written to Australia Post on 5 December 1997 and forwarded a report of Dr R Plowman, orthopaedic consultant, dated 1 December 1997 in support of his claim. It was submitted that the delegate who purported to undertake the reconsideration had acted in breach of s.62(1)(b) of the Safety, Rehabilitation and Compensation Act 1988 (the Act). That is, the delegate who made the determination of 10 November 1997 should not have been the person to reconsider the determination. It was submitted, therefore, that the tribunal should direct the respondent to discharge its statutory duty properly and reconsider the decision of 10 November 1997.
3. The delegate, K Vaughan, wrote to Mr Priest on 10 November 1997 in the following terms:
… I have now received a report from Dr Hodgkinson who examined you on 4 November 1997. A copy of this report is enclosed for your information. Dr Hodgkinson has stated that:
1. I believe at most this man sustained a mild myofascial strain at the time of the incident on the 17th July 1996 but has no serious continuing disability.
2. He is not incapacitated for work as a result of the incident of the 17th July 1996.
3. I feel that the effects of the compensable condition would have ceased three months after the incident.
In view of this opinion, it is my intention to cease further payments of compensation.
The purpose of my letter is to give you the opportunity to provide me with specialist medical evidence that refutes the opinion of Dr Hodgkinson and which clearly explains the relationship between your condition and your employment with Australia Post. You may also wish to provide a statement of your own.
You have 28 days from the date of this letter to respond. If I have not heard from you in that time, I will assume that you do not wish to provide any further evidence and I will issue a determination ceasing liability accordingly.
… (T41)
Mr Priest wrote to Australia Post on 5 December 1997 requesting that a report dated 1 December 1997 from Dr R Plowman, orthopaedic surgeon, be taken into account. Dr Plowman concluded that Mr Priest suffered a L5/S1 disc protrusion from the injury on 17 July 1996 and that he should avoid work activities requiring prolonged sitting or standing or regular bending, heavy lifting or stretching.
4. By letter dated 10 December 1997 Mr Vaughan on behalf of Australia Post informed the applicant that, notwithstanding the report of Dr Plowman, the opinion of Dr Hodgkinson was preferred. The letter stated “ … therefore on and from 11 December 1997 you are no longer entitled to the payment of compensation in respect of your condition.” (T46 in the documents lodged with the tribunal pursuant to s.37 of the Administrative Appeals Tribunal Act 1975) Mr Priest was advised that if he was dissatisfied with the delegate’s decision, he was entitled to request a reconsideration under s.62 of the Act and his attention was drawn to the 30 day time limit for doing so. A notice enclosed with the letter was said to provide Mr Priest with more information about his rights and the time limit.
5. In support of his argument, the applicant’s counsel relied on the interpretation of the word ‘decision’ given by Lockhart J in Director-General of Social Services v Hales (1983) 47 ALR 281, which was recently approved by the Full Federal Court in Australian Postal Corporation v Forgie (2003) 202 ALR 63. Lockhart J stated that
A pronouncement which alters rights or imposes liabilities is readily classified as a 'decision', but the word has a wider scope. It may include a declaration or statement which has a real practical effect although not altering rights or imposing liabilities: Duncan v. Defence Force Retirement and Death Benefits Authority and Commonwealth of Australia 3 A.L.D. 113 (at p. 117).
…
Mr Edwards also cited Re Ransley andComcare [1999] AATA 988 where the tribunal decided that a delegate’s decision that was not tentative, provisional or otherwise preliminary in nature is a decision for the purposes of the Act.
6. It is convenient at this point to set out the following provisions from the Act:
Section 60 Interpretation
(1) In this Part:
decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
determinationmeans a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.
reviewable decision means a decision made under subsection 38(4) or section 62
.
Section 61 Determinations to be notified in writing
(1) As soon as practicable after a determining authority makes a determination, it shall cause to be served on the claimant a notice in writing setting out:
(a) the terms of the determination;
(b) the reasons for the determination; and
(c) a statement to the effect that the claimant may, if dissatisfied with the determination, request a reconsideration of the determination under subsection 62(2).
…
Section 62 Reconsideration of determinations
(1) A determining authority may, on its own motion:
(a) reconsider a determination made by it; or
(b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;
whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
…
(3) A request for reconsideration of a determination shall:
(a) set out the reasons for the request; and
(b) be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.
Subsection 3(3) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) provides the following meaning for ‘decision’:
(3) A reference in this Act to a decision includes a reference to:
(a) making, suspending, revoking or refusing to make an order or determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing.
7. Plainly the letter of 10 November 1997 in terms offered Mr Priest an opportunity to put additional evidence to the delegate prior to his making the determination. So much was understood by Mr Priest whose letter of 5 December 1997 asked the delegate to have regard to Dr Plowman’s report before issuing the determination. That was its purpose and it had no other practical effect. I find that the letter of 10 November 1997, both in substance and form, was preliminary in nature, leading up to a decision that was yet to be taken. The letter did not alter rights or impose liabilities, as it was merely an indication of what could happen at a later point, within 28 days of that letter, depending upon Mr Priest’s response. Not only was the letter of 10 December 1997 expressed to be a determination, it affected the applicant’s rights in that it informed him that liability had been ceased from that date and he had 30 days in which to request a reconsideration. Consequently, I do not accept Mr Edwards’ submission.
8. Australia Post informed the applicant’s solicitors on 17 July 2003 that his request for an extension to the 30 day period referred to in s.62(3) of the Act had been refused. The respondent’s decision on the request is reviewable by the tribunal (Comcare v Willems (1996) 43 ALD 253).
9. Mr Priest’s employment with Australia Post began in 1990. He injured his back at work on 17 July 1996 while picking up a parcel bag that appeared to be light, but was unexpectedly heavy. Liability for compensation was initially accepted. Mr Priest consulted solicitors who wrote to Australia Post on 14 July 1997 to request reconsideration of a determination dated 20 June 1997 that he attend his physiotherapy treatment outside work hours. By notice dated 20 August 1997 to the solicitors, Mr Priest was informed that the determination had been affirmed.
10. In light of Dr Hodgkinson’s report of 5 November 1997 and after considering Dr Plowman’s report, the delegate made the determination dated 10 December 1997 that Mr Priest was no longer entitled to compensation for his lower back strain. As noted above, the determination, which was posted to Mr Priest and not his solicitors, informed him that he was entitled to request a reconsideration under s.62 and that there was a 30 day time limit. Mr Priest’s evidence was that he recalled getting the determination and noting the time limit. He phoned his solicitors about it. He thought the solicitors were going to help him continue to receive compensation but he said he did not hear anything from them. Eventually he had to change solicitors because they lost his papers.
11. Mr Priest’s evidence was that he suffered from a severe depression that prevented him from pursuing his reconsideration for a number of years. He said he got fed up with harassment from colleagues at work who challenged his stated inability to perform various aspects of his job. The depression led to his resignation from Australia Post. In cross-examination Mr Priest acknowledged that he was in a motor vehicle accident in January 1998. Later in 1998 his long term relationship ended. He resigned from Australia Post on 30 September 1998. He maintained that his relationship broke up because the injury to his back prevented him from having sex. He came under the care of a psychiatrist, Dr G Robinson.
12. In undertaking a review of the respondent’s decision not to extend time for requesting reconsideration, I will have regard to the broad principles guiding the tribunal in its exercise of a discretion to grant an extension of time that are contained in Wilcox J’s judgment in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. Those principles are:
· Prima facie, proceedings should be commenced within the prescribed period and an applicant must advance an acceptable explanation for the delay.
· Any action that the applicant has taken, apart from applying for the extension, is relevant in considering whether there is an acceptable explanation for the delay.
· Prejudice to the respondent, if any, is a relevant factor although its absence is not enough to justify granting an extension.
· Public considerations, including the unsettling of established practices or of other people, may be taken into account.
· It is relevant to have regard to the merits of the application for review.
· Considerations of fairness as between the applicant and others in a similar position are relevant.
I am mindful of the Full Federal Court’s caution that I would fall into error if I regarded the principles in Hunter Valley Developments as complete or treated each principle as necessarily applicable in every application for an extension of time (Zizza v Commissioner of Taxation 99 ATC 4711).
13. Is there an acceptable explanation for the delay in requesting reconsideration? Two reasons were put forward for the delay. First, Mr Priest’s formal application to the tribunal for review stated that he has been receiving treatment for a psychological disorder since his resignation from Australia Post. In addition he stated that he has been incapable of making decisions in these types of matters since at least 1999 due to his psychiatric condition.
14. In cross-examination, however, Mr Priest did not agree that his psychiatric condition prevented him from making decisions since 1999, though he added he has been very sick. It is also significant in this regard to note Dr Robinson’s report dated 3 December 2001 to the applicant’s GP Dr Lim, in which he diagnosed depression. Dr Robinson conducted a mental state examination and found Mr Priest’s “cognitive functions were essentially intact” (exhibit R3). A similar finding had been made by Dr A White, consultant psychiatrist, who examined the applicant on 3 August 1998 at the request of Australia Post (T50). Indeed Dr White reported that the applicant’s “ … presentation during the interview was not consistent with a man suffering from a psychiatric disorder which would explain his physical symptoms or which would prevent him from working.” The expert evidence persuades me that Mr Priest does not suffer any impairment in intellectual functioning.
15. The second reason for the delay was that Mr Priest has poor literacy skills and had difficulty understanding “legal type letters”. Mr Priest agreed, however, that when he used to sort mail, he would read what was written on envelopes and parcels, and he admitted that he has no reading problems. He also said in evidence that he recalled receiving the delegate’s letter dated 10 December 1997 and telling his solicitor that the letter gave him 30 days in which to do something. It should be noted as well that Mr Priest did give instructions to his solicitors to request a reconsideration of Australia Post’s determination of 20 June 1997 (T26) that he would no longer be permitted to take time off work and be paid in order for him to attend physiotherapy for the back injury sustained in July 1996. I am satisfied that Mr Priest’s actions in relation to that determination demonstrates his understanding of communications from Australia Post and capacity to take appropriate action in response to legal matters.
16. There was also some suggestion that the delay should be attributed to inaction on the part of Mr Priest’s former solicitors. Mr Priest said that after giving the respondent’s letter of 10 December 1997 to the solicitor, who incidentally was the same solicitor who had carriage of the reconsideration that was requested in July 1997, he did not hear much from her. When he heard she had resigned, he changed solicitors. His evidence did not take this issue any further than that. There was no evidence, say, of his giving instructions to her, or other solicitors, that were not followed or that they failed to provide him with advice. On the strength of the evidence before me, I am unwilling to infer that instructions were given to solicitors that were not acted upon in a timely manner.
17. I am not satisfied, therefore, that Mr Priest’s reasons provide an acceptable explanation for the more than five year delay in requesting reconsideration. However, the lack of a satisfactory explanation alone is not fatal to his application (Comcare v A’Hearn (1993) 119 ALR 85).
18. As for the second guiding principle from Hunter Valley Developments, I find that Mr Priest did not take any steps that would have informed Australia Post that he still contested the determination of 10 December 1997.
19. In relation to prejudice to the respondent, it was submitted that after Dr Hodgkinson saw Mr Priest in November 1997, the respondent’s next opportunity to have him assessed by an orthopaedic specialist was in March 2004 when he was examined by Dr D Maxwell, orthopaedic surgeon. Australia Post last had an assessment of the applicant’s psychological symptoms and their impact on his fitness for work performed by Dr White in August 1998.
20. The opinion of 15 April 2003 provided by Dr Ostinga, orthopaedic surgeon, to the applicant’s solicitors states that Mr Priest has severe pain in the low back radiating to his legs and knees and he complains of numbness in the knees. Neither Dr A Isaacs, the orthopaedic surgeon to whom the applicant was referred by Dr Lim in 1997, nor Dr Plowman recorded symptoms of pain radiating into the legs. Dr Ostinga diagnosed L5/S1 prolapse with thecal sac impingement and the prognosis was that the “ … very severe symptoms … might imply that further review is indicated. His overall prognosis is guarded and his musculo-skeletal problem would not appear to be assisted by his depressive illness.” (T88) Dr Ostinga considered the applicant was incapacitated for work because of his musculoskeletal problem and depression. By contrast, Dr Maxwell concluded on 4 March 2004 (T95) that Mr Priest’s back sprain did not result in a pathological lesion and he would have expected the sprain to have settled after four to six weeks. Apart from back stiffness on examination, Dr Maxwell found no evidence of any serious pathology or radiculopathy. The stiffness was due to chronic disuse and inactivity.
21. Australia Post is placed at a disadvantage in not having been able to have Mr Priest examined during the intervening five years. It is very difficult for the respondent now to establish what has led to this progression in the applicant’s symptoms.
22. Mr Priest’s evidence was that harassment and mistreatment by work mates led to his decision to resign in September 1998. He said that he was having emotional problems and ultimately they led to his depression. Counsel for the respondent submitted that there was little likelihood of the respondent being able to locate Mr Priest’s colleagues at this juncture and even if they could be found, there would remain the problem that the intervening period would probably have dimmed their memories of what happened to Mr Priest. I accept this submission and am satisfied that the delay would probably result in prejudice to the respondent.
23. Further, I consider that there is presumptive prejudice to the respondent. When the applicant did not act by requesting a reconsideration after receiving the letter of 10 December 1997, the respondent would have been led to presume that the matter had been concluded and thus it could adjust its affairs accordingly. This consideration is related also to the public interest in there being finality in decision-making. I am not satisfied that granting an extension after a five year delay, in the circumstances of this applicant’s inactivity in pursuing reconsideration, would serve the public interest.
24. I come next to the merits of the substantive application. Counsel for the applicant submitted that the reports of Dr Isaacs, all from 1997, and reports by the occupational physicians Dr C Hollo dated 21 November 1996, Dr D Dowda dated 4 March 1997 and Dr J Graham dated 4 August 1997, provided support for the case that Mr Priest’s current low back and leg symptomatology are related to the incident at work on 17 July 1996. It was submitted that the only report that did not was Dr Hodgkinson’s and therefore the preponderant view favoured the applicant. I agree, however, with the respondent’s submission that obviously none of these doctors offered a view about the relationship, if any, between the symptoms that Mr Priest is currently experiencing and his employment by Australia Post. Coming to the more recent reports, I note that Dr Ostinga and Dr Maxwell have reached entirely different conclusions by way of diagnosis and contribution of the work to the applicant’s symptoms. But in a matter such as this it is not appropriate to embark on a trial of the merits. It is enough if the applicant’s case taken at its highest is reasonably arguable (Commissioner of Taxation v Brown (1999) 42 ATR 672). I accept, therefore, on the material before me, that it could be open to find that the injury to the applicant’s low back and the pain radiating into his legs which he now suffers, arose out of his employment at Australia Post.
25. Regarding the issue of fairness between the applicant and others in a similar position, it was submitted that it would be disadvantageous to interpose this application among those of other applicants with cases pending at the tribunal and who have acted in a timely manner. I do not agree that others would be particularly disadvantaged in having their applications dealt with expeditiously if an extension of time were granted.
26. The tribunal’s task in deciding an application of this nature is
… essentially a balancing exercise the focus of which is the period of time that has elapsed since the cause of action arose and, in particular, since the expiry of the time limit. What must be balanced is the consequences of the time having elapsed and why it has elapsed. The balancing exercise would ordinarily involve a consideration of the impact on the interests of the affected parties of a decision to extend, or to refuse to extend, time. The explanation given by an applicant for an extension of time as to why an application was not brought earlier might be a particularly compelling one. In that circumstance the decision maker might conclude that the balance favoured the extension of time even though the adverse effect on the other party was a material one. If, on the other hand, the explanation was not a compelling one then the decision maker might conclude that even some minor adverse effect on the other party justified the extension of time being refused. (Agar v Australian Postal Corporation (1998) 56 ALD 361 at 370, Moore J)
27. I am mindful of the impact on the applicant’s life that the injury he sustained at work in July 1996 is said to continue to have on him. Although I have found that at its highest, Mr Priest has an arguable case on the merits, that consideration will not automatically determine the success of an application for an extension of time (Comcare v Smith [1997] 140 FCA). I must balance that consideration, favourable as it nonetheless is to the applicant, against the prejudice to the respondent. In my opinion the prejudice facing the respondent in endeavouring to establish the contribution of the applicant’s employment, which I note came to an end in 1998, to a condition that appears to have worsened in the interim, is very significant. Similarly it must be balanced against my finding that the applicant has failed to provide an adequate explanation for his considerable delay, which exceeds five years. Mr Priest rested on his rights for a long period and his reason that he did so because he is unable to understand legal matters is without any substance. Overall, I have come to the conclusion that it would not be fair and equitable in these circumstances to exercise the discretion to extend time for making the reconsideration request.
28. The application for an extension of time is refused.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member
Signed: .....................................................................................
AssociateHearing 28 May 2004
Decision 19 August 2004
Applicant’s counsel T EdwardsRespondent’s counsel R Henderson
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