ROBIN EMERSON and COOGEE RESOURCES (STAFF) PTY LTD

[2010] AATA 174

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 174

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2009/5586

GENERAL ADMINISTRATIVE DIVISION		)
Re		ROBIN EMERSON

Applicant

And COOGEE RESOURCES (STAFF) PTY LTD

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date12 March 2010

PlaceSydney

Decision The decision of the Tribunal is to grant an extension of time pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 for Mr Emerson to make an application for review of the decision of Allianz dated 11 June 2008.

..................[sgd]............................

Ms G Ettinger
  Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – Application for extension of time to lodge application for review – whether it is reasonable in all the circumstances to grant the extension - explanation for delay, solicitor’s lack of attention – merits of substantive application – reasonable in all the circumstances – extension of time given.

Administrative Appeals Tribunal Act 1975, s 29

Budd v Secretary, Department of Education, Employment and Workplace Relations [2008]        FCA 1540

Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and   Environment  (1984) 58 ALR 305

Comcare v A'Hearn (1993) 119 ALR 85

REASONS FOR DECISION

12 March 2010	Senior Member G Ettinger
BACKGROUND

1.      On 6 February 2004, Mr Robin Emerson sustained an injury to his left shoulder while pulling a bunker hose during work on an oil rig in the Timor Sea.  Liability was accepted for a neck injury pursuant to the Seafarers Rehabilitation and Compensation Act 1992.  However, on 4 April 2007, the Respondent determined that it was not liable to pay compensation for permanent impairment and non-economic loss. A reviewable decision affirming that determination was made on 11 June 2008. Due to the lack of attention to Mr Emerson’s matter, his solicitors did not lodge an appeal at the AAT until 23 November 2009.  An application for extension of time to lodge the appeal was made on the same day.  Notwithstanding the length of time which had elapsed, I found that it was reasonable in the all the circumstances to exercise the discretion to allow the extension of time. My reasons follow.

ISSUE BEFORE THE TRIBUNAL

2.      The application before me was for extension of time for Mr Emerson to lodge a claim at this Tribunal against the reviewable decision of 11 June 2008.

LEGISLATIVE CONTEXT

3.      The relevant legislation is the Administrative Appeals Tribunal Act 1975, (the Act), in particular section 29(7).

THE HEARING

4.      In order to exercise the discretion to extend time to lodge a claim, I must take into account well established principles which have been enunciated in the case of Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 58 ALR 305, and modified by Comcare v A'Hearn (1993) 119 ALR 85.

Prescribed period not to be ignored

5.      Wilcox J stated in Hunter Valley that: “The prescribed period is not to be ignored … Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained ..”

6.      Clearly in this case, over a year had elapsed before the application for review was made to the Tribunal. Ms E Magyar, now the solicitor for Mr Emerson appeared at the hearing, and swore an affidavit dated 3 February 2010 in which she provided the history of the claim, and gave an explanation for the delay.

Reasons for delay

7.      Ms E Magyar, gave the history of the matter in her affidavit. Essentially she deposed that on her admission as a legal practitioner she was allocated 150 files by her employer, CMC Lawyers, in October 2009, including that of Mr Emerson.

8.      Ms Magyar told me that she did not know who had previously had responsibility for Mr Emerson’s file, but noted from her perusal of the file that counsel’s opinion had been sought with regard to an extension of time for the lodging of an application to the AAT. Although an advice had been received in May 2009, she said that nothing had been done when she reviewed the file in October 2009, and she sought further advice.

9.      On 23 November 2009, Ms Magyar then filed an extension of time application at the AAT, and an appeal against the decision to refuse Mr Emerson permanent impairment. I noted with some interest that neither Ms Magyar, not it seems anyone else, had sought instructions from Mr Emerson before doing so. As a consequence, and in order to not further prejudice Mr Emerson in regard to the lack of care, concern and action for his matter by his legal advisors, I adjourned the hearing so that the appropriate contact with him could be made.

10.     When we resumed the hearing some weeks later, I had before me an affidavit of Mr D Meneghello, also a solicitor from CMC Lawyers, who deposed that when Mr Emerson first approached CMC Lawyers, he was appointed solicitor with carriage of the file. He deposed that following the adjourned AAT hearing of 9 February 2010, he telephoned his client (on 12 February 2010), to inform him of the status of his matter, and “the delay caused by our office. Specifically that following the Second Determination of Allianz dated 11 June 2008, CMC Lawyers failed to apply for a Determination for a Review to the Administrative Appeals Tribunal, within the prescribed time period.”  Mr Meneghello also deposed that Mr Emerson confirmed his instructions to CMC Lawyers to proceed with the matter.

11.     I have noted that in Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540, Cowdroy J, referring to a decision of Federal Magistrate McInnis stated at [18]:

“    … In Phillips v Australian Girls’ Choir Pty Ltd & Anor (2001 FMCA 109, Federal Magistrate McInnis considered the nature of the discretion contained in s 44(2A)(a) of the AAT Act, and said at [10]:

‘In the light of A’Hearn’s case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it’s fair and equitable in the circumstances to extend time. …’ ”.

12.     I am satisfied that although Mr Emerson was notified of the reviewable  decision made on 11 June 2008, he is now aware that the appropriate action was not taken to progress his claim. He has been prejudiced by the inaction of his lawyers. However, I am satisfied on the basis of the evidence before me that Mr Emerson should not be held responsible for the delay which he has suffered because of delays occasioned by his legal advisors. Applying the principles enunciated in A’Hearn, I am mindful that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client.

Whether Mr Emerson rested on his rights

13.     From the paucity of evidence from his solicitors, and none from Mr Emerson, it would be hard for me to conclude whether Mr Emerson rested on his rights. In paragraph two of Mr Meneghello’s affidavit, he refers to the time Mr Emerson first approached CMC Lawyers, but gives no indication when that might have been. I have before me the letter of Allianz to Mr Emerson dated 11 June 2008, and nothing further until the telephone call dated 12 February 2010 as reported by Mr Meneghello. Perhaps Mr Emerson should have, or did contact his solicitors again after he approached them to act for him.

14.     What I can say is that the Respondent knew about Mr Emerson’s medical appointments before the reviewable decision was made, and that once again I am mindful that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client.

Prejudice

15.     Mr Kelly who appeared for the Respondent did not press the issue of prejudice to the Respondent. He accepted there are three volumes of T-documents with all the medical reports available. I am mindful that notwithstanding over a year has passed in which the Respondent was entitled to consider the matter finalised, and that there is always some prejudice if events occur outside statutory limits, it would not be excessively difficult to reassemble and update the relevant material in relation to Mr Emerson. I note that in any case, lack of prejudice alone, is not a decisive factor in the exercise of the discretion to grant an extension of time.

Merits of the case

16.     I am not required in considering an extension of time to conduct a close analysis of the case, am however mindful from the medical reports in the T-documents that liability for Mr Emerson’s injury was accepted, and that the reports with regard to the permanent impairment claim report on certain levels of permanent impairment. The case is not without merit, and may succeed at hearing. It is certainly a factor I can take into account in exercising the discretion to allow the extension of time.

CONCLUSION

17. Having regard to section 29(7) of the Act, and the indicia in Hunter Valley and A’Hearn, as discussed in the paragraphs above, and the evidence before me, I find that it is reasonable in all the circumstances to exercise the discretion to grant an extension of time for Mr Emerson to make an application for review of the decision of Allianz dated 11 June 2008.

DECISION

18. The decision of the Tribunal is to grant an extension of time pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 for Mr Emerson to make an application for review of the decision of Allianz dated 11 June 2008.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Ms G Ettinger

Signed:         .......................................................
  Associate

Dates of Hearing  9 February & 11 March 2010
Date of Decision  Friday 12 March 2010
Applicant’s Counsel                   Mr P Stockley
Applicant’s Solicitor                   CMC Lawyers
Respondent’s Counsel             Mr B Kelly  
Respondent’s Solicitor              Sparke Helmore