Rees and Optus Administration Pty Ltd

[2015] AATA 739

Rees and Optus Administration Pty Ltd [2015] AATA 739 (9 September 2015)

Division	GENERAL DIVISION
File Number	2015/3473
Re	Bernice Rees
APPLICANT
And	Optus Administration Pty Ltd
RESPONDENT

DECISION

Tribunal	Ms G Ettinger, Senior Member
Date	9 September 2015
Date of written reasons	23 September 2015
Place	Sydney

The Tribunal grants Ms Bernice Rees’ application for an extension of time to lodge an application for review of the decision of Optus Administration Proprietary Limited dated 6 May 2015 pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975. The extension is granted until 11 September 2015.

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Ms G Ettinger, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – Application for extension of time to lodge application for review – whether extension reasonable in all the circumstances – explanation for delay – no prejudice to the Respondent – fair and equitable in all the circumstances to extend time – application granted

LEGISLATION

Administrative Appeals Tribunal Act 1975 s 29(7)

CASES

Hunter Valley Developments Proprietary Limited v Cohen, Minister for Home Affairs and Environment [1984] FCA 176

Jackamarra v Krakouer (1998) 195 CLR 516

Comcare v A’Hearn (1993) 119 ALR 85

REASONS FOR DECISION

Ms G Ettinger, Senior Member

SUMMARY

1. These are the ex tempore reasons in the matter of Rees v Optus Administration Proprietary Limited.  By way of background, I note that Ms Bernice Rees, the Applicant, lodged an application dated 13 July 2015 for review of a decision of Optus Administration Proprietary Limited, (Optus Administration), the Respondent in this application, for an extension of time to lodge an application for review of the decision it made on 6 May 2015.

2. The Tribunal has powers under section 29(7) of the Administrative Appeals Tribunal Act 1975 (the Act), to extend the time for Ms Rees to apply to the Tribunal for review of the decision if it is satisfied that it is reasonable in all the circumstances to do so.  At the hearing before me, Ms Rees was represented by Mr Best of counsel and his solicitor Mr Fahey. The Respondent was represented by Mr Kelly of counsel, instructed by Ms O’Connor. 

3. The parties each filed a bundle of documents which I have taken into evidence, and which have assisted with my decision-making. Ms Rees provided a statement with attachments, which was Exhibit A1, and the Respondent provided a bundle of documents including correspondence, which was Exhibit R1. 

4. Moving then to Ms Rees’ extension of time application.  As both parties acknowledged, the well-known case of Hunter Valley Developments Proprietary Limited v Cohen, Minister for Home Affairs and Environment [1984] FCA 176 (Hunter Valley Developments) sets out the principles that are generally taken into account when considering whether to exercise the discretion to grant an extension of time.

5. The principles have been considered in many other cases, including by Kirby J in Jackamarra v Krakouer (1998) 195 CLR 516, who stated that the principles in relation to extensions of time canvassed in Hunter Valley Developments were not exhausted, and that a consideration of whether delays were intentional or contumelious, whether they were the result of a bona fide mistake, and whether the delay was that of legal representatives or of the party were relevant.  Now, we did not explore the latter fully, but I have just noted them.

   Explanation for the delay and whether the applicant rested on her rights

6. I am mindful that in Hunter Valley Developments the Court stated that prima facie the statutory period for appeal cannot be ignored. In the case of Ms Rees, the delay was approximately six or seven days, as the reviewable decision of Optus Administration was made on 6 May 2015, and the application for review on 13 July 2015. 

7. One of the main factors explored in Hunter Valley Developments was whether there was an acceptable explanation of the delay.  I note, however, from Comcare v A’Hearn (1993) 119 ALR 85, that such an explanation is not an essential precondition for the granting of the extension.

8. So in addition to providing a statement, Ms Rees gave oral evidence and was cross-examined by Mr Kelly regarding her reasons for the delay.  In her statement, she said that her solicitor Mr Fahey had telephoned her on 7 May 2015, the day he received the decision of Optus Administration, which was a day after it was made on 6 May 2015.  He had made her aware she had 60 days to request a review of the decision to this Tribunal.  Ms Rees said that over the next two months she had been suffering depression and was unable to work. Ms Rees also indicated she has suffered other personal problems, including the death of her mother in South Africa in late 2014.

9. Ms Rees stated that she was not in the right frame of mind to instruct her solicitor, and found it hard to decide whether to appeal the decision of the Respondent.  She contacted her brother-in-law, Mr Dion Froes who is trustee for her stepdaughter, and who advised that an estimate of costs of the appeal should be made. Mr Fahey also suggested obtaining advice from counsel with regard to the prospects of success at the Tribunal. 

10. Ms Rees stated that by June 2015 she had found she was not coping, and attended the Trauma Stress Clinic at Westmead Hospital, where she was diagnosed with post-traumatic stress disorder and persistent complex bereavement disorder arising from the loss of her husband by Mr Ben Garber, a registered psychologist.

11. I had before me a copy of the report of Mr Garber dated 11 August 2015.  He stated that he diagnosed the Applicant with the above-named conditions, and that she had been offered treatment using cognitive behaviour therapy, and had at the time of the report attended seven sessions. He indicated that Ms Rees would complete the course by October this year, and stated that he expected her to make significant further gains.  Ms Rees said in reply to questions during cross-examination that she was not prescribed medication, and that she did not also consult a psychiatrist.

12. She also agreed she had not asked her brother-in-law to make the decision regarding whether she should appeal the decision of Optus Administration to this Tribunal.  She said that she always considered his opinion seriously, but wanted to try and resolve matters herself.

13. Mr Best submitted that Ms Rees was accordingly unable to make a decision during the time of her great distress as reported by the Applicant and Mr Garber.  However, he emphasised that the delay in applying for review to the Tribunal was only six or seven days.

14. Mr Kelly submitted that Mr Garber did not indicate Ms Rees was so impaired that she was incapable of giving instructions to her solicitor to lodge an application for review. He emphasised she was not taking medication for her conditions, and not consulting a psychiatrist. Mr Kelly emphasised that Mr Garber also stated that Ms Rees had been suffering her conditions for a year prior to seeing him.  Mr Kelly submitted that Ms Rees did not take any steps to inform Optus Administration about whether she was intending to appeal the decision to refuse liability.

15. I have taken into account Ms Rees’ evidence and the submissions of both counsel. I note that Ms Rees’ delay in applying for review of the decision of 6 May 2015 was due to the fact that she was very unwell psychologically, and unable to make decisions.  I am mindful she was in contact with her solicitor and her brother-in-law and had been contemplating whether to request review of the decision.  I am satisfied that the delay was not excessive and that she did not rest on her rights. I am satisfied that the explanation for the delay gives weight to the argument for an extension of time.

    The issue of prejudice to either party

16. I have also considered the issue of prejudice to either party in relation to the application by Ms Rees for an extension of time to lodge the application for review.  Mr Best submitted that the short delay in applying for review did not prejudice the Respondent.  Mr Kelly, however, argued that prejudice arises in that the Respondent would be faced with the necessity of defending proceedings concerning its decision.  He also indicated that it was 19 months after the death of Mr Froes, and that three employees of the Respondent who might have been called to give evidence at a hearing no longer worked for Optus Administration.

17. I prefer the argument of the Applicant in this case, and find there would be little, if no prejudice in having this matter heard at the Tribunal. I accept Mr Kelly’s submission that absence of prejudice is not itself a reason to grant an extension of time application.  I give little weight to his submission however, that three relevant potential witnesses have left the employ of the Respondent.  There is no indication they cannot be contacted and be made available for examination if necessary. 

    The merits of the substantive application 

18. Mr Best submitted that there had not yet been an opportunity to test the merits of the substantive application, and there was no evidence upon which to make assumptions regarding its prospects of success at the Tribunal.

19. Mr Kelly submitted that it was usually up to the Applicant to make a prima facie case, which had not been done in this case.

20. I am mindful that whilst it is not appropriate in an interlocutory hearing of this type to conduct an extensive review of Ms Rees’ case or its prospects of success at the Tribunal, I have to conclude that from what I know her case is not without merit.  Taking into account all the indicia from Hunter Valley Developments, I am satisfied she should have the opportunity of exploring that. 

    Public considerations

21. I am satisfied that granting an extension of time in this case would not unsettle established practices but rather acknowledge the particular circumstances of the matter.

    Fairness between the Applicant and others in a like position; Fair and equitable in all the circumstances to extend time

22. I have considered all the circumstances, and I am satisfied that fairness demands Ms Rees be given the opportunity of pursuing a review of the decision of 6 May 2015.  I accept she has satisfactorily explained the reasons for the short delay in applying to the Tribunal, which was due to her emotional state and psychological illness.

23. I have considered the submissions of both parties, and the situation of fairness between the Applicant and others in a like position. 

24. A six to seven day delay is outside the statutory period and must therefore be considered. However, it is not excessive, there is little or no prejudice to the Respondent, and the substantive case is not without merit.  I am satisfied then, that applying the indicia in Hunter Valley Developments, it would be reasonable in all the circumstances to extend time to apply for review. 

    DECISION

25. Accordingly the Tribunal grants Ms Bernice Rees’ application for an extension of time to lodge an application for review of the decision of Optus Administration Proprietary Limited dated 6 May 2015 pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975. The extension is granted until 11 September 2015.

I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of

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Associate

Dated 23 September 2015

Date of hearing	9 September 2015
Counsel for the Applicant	Mr M Best
Solicitors for the Applicant	Perkins Fahey Lawyers
Counsel for the Respondent	Mr B Kelly
Solicitors for the Respondent	Sparke Helmore