Ross and Australian Postal Corporation
[2002] AATA 105
•21 February 2002
DECISION AND REASONS FOR DECISION [2002] AATA 105
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A 2001/484
GENERAL ADMINISTRATIVE DIVISION )
Re David William Ross
Applicant
And Australian Postal Corporation
Respondent
DECISION
Tribunal Mr M Sassella, Senior Member
Date21 February 2002
PlaceCanberra
Decision The tribunal rejects the applicant's application for extension of time for lodging his application for review of the reviewable decision. The applicant is entitled to no costs associated with this application or the application for review.
..............................................
Senior Member
CATCHWORDS
WORKERS' COMPENSATION – reviewable decision rejecting applicant's claim for compensation for aggravation of knee pain – delay in lodging application for review of that decision – extension of time application - no satisfactory explanation for delay – extension of time not granted
Comcare v A'Hearn (1993) 119 ALR 85
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Re Petrou and Australian Postal Corporation (1992) 25 ALD 407
Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315
Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42
McDonald v Director-General of Social Security (1984) 1 FCR 354
Re Vickery and Commonwealth of Australia (1985) 8 ALD 93
Treloar and Australian Telecommunications Commission (1990) 26 FCR 316
Re Williams and Comcare [2001] AATA 985
Safety, Rehabilitation and Compensation Act 1988 – s 65(1), (4)
Administrative Appeals Tribunal Act 1975 – s 29(1), (2)(a), (7)
REASONS FOR DECISION
21 February 2002] Mr M Sassella, Senior Member
History of application
Mr David William Ross ("the applicant") was working for the Australian Postal Corporation ("the respondent") on 15 November 1999 when, he says, he experienced knee pain as a result of heavy work he was doing as an employee of the respondent (Ex A3). He was rostered off on 16 November 1999 and took sick leave on 17 November 1999 until 3 January 2000.
The applicant lodged with the respondent on 19 November 1999 an incident report (Ex A4). He identified pain in the right knee incurred on 15 November 1999. It was a recurrence and had been followed by a full shift off duty.
On 20 December 1999 the applicant signed a compensation claim form (Ex A4) in respect of the incident on 15 November 1999. That claim was lodged but the date is unclear.
On 22 December 1999 the respondent rejected the applicant's claim (Ex A4).
On 30 December 1999 the applicant sought reconsideration of the rejection decision (Ex A4).
On 6 January 2000 the respondent affirmed the rejection after reconsideration of the decision to reject the claim (Ex R1).
On 13 November 2001 the applicant lodged with the Administrative Appeals Tribunal ("the tribunal") an application for review of the decision of 6 January 2000 (Ex A1). That document indicated that he had received the reviewable decision on about 8 January 2000. An application for an extension of time was lodged at the same time (Ex A2).
Relevant legislation
The provisions relevant to the application for an extension of time are:
The Safety, Rehabilitation and Compensation Act 1988 s 65(1), (4).
The Administrative Appeals Tribunal Act 1975("the AAT Act") ss 29(1), (2)(a), (7).
Safety, Rehabilitation and Compensation Act 1988
…
SECT 65Modifications of the Administrative Appeals Tribunal Act 1975
65. (1) This section has effect for the purposes of theapplication of the Administrative Appeals Tribunal Act 1975 (in this
section called "the Act") in relation to a reviewable decision.(2) Section 21 of the Act has effect as if a reference in
subsection (1A) to a presidential member included a reference to a
senior non-presidential member authorised by the President for the
purposes of the exercise of the powers referred to in that
subsection.(3) Section 24 of the Act has effect as if the reference to any
place in Australia or an external Territory were a reference to any
place, whether within or outside Australia.(4) Subsection 29 (2) of the Act has effect as if the reference to
"the twenty-eighth day" (first occurring) were a reference to "the
sixtieth day".
…
ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975
…
29 Manner of applying for review(1) An application to the Tribunal for a review of a decision:
(a) shall be in writing; and
(b) may be made in accordance with the prescribed form; and(c)except if paragraph (ca) or (cb) applies - must contain a statement of the reasons for the application; and
(ca)in respect of an application made under subsection 54(1) of the Australian Security Intelligence Organisation Act 1979 for review of a security assessment - must be accompanied by:
(i) a copy of the assessment as given to the applicant; and
(ii)a statement indicating any part or parts of the assessment with which the applicant does not agree and setting out the grounds on which the application is made; and
(cb)in respect of an application under subsection 54(2) of the Australian Security Intelligence Organisation Act 1979 - must be accompanied by a statement setting out the grounds on which the application is made;
(d)if the terms of the decision were recorded in writing and set out in a document that was furnished to the applicant or the decision is deemed to be made by reason of the operation of subsection 25 (5) - shall be lodged with the Tribunal within the prescribed time.
…
(2)Subject to subsection (3), the prescribed time for the purposes of paragraph (1) (d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:
(a)if the decision sets out the findings on material questions of fact and the reasons for the decision - the day on which a document setting out the terms of the decision is furnished to the applicant; or
…
(7)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).
…
Hearing and appearances
The tribunal convened an extension of time hearing in Canberra on 4 February 2002. Mr Stuart Pilkinton of counsel represented the applicant. Miss Rhonda Henderson of counsel represented the respondent.
The tribunal had access to the following documents which it admitted into evidence:
Exhibit A1 – Application for review, 13 November 2001.
Exhibit A2 – Application for extension of time for lodging application for review of decision, 13 November 2001.
Exhibit A3 – Affidavit of applicant, 21 January 2002.
Exhibit A4 – Copies of applicant's records relating to his compensation claim.
Exhibit A5 – Clinical notes of Dr L S Ratnasingham, general practitioner.
Exhibit R1 – Reviewable decision, 6 January 2000.
Exhibit R2 – Notice dated 29 November 2001 from the respondent objecting to the grant of an extension of time.
Context provided by the applicant's counsel
Mr Pilkinton provided the following background and argument. The applicant was injured in a motor vehicle accident in 1971. His right kneecap was removed surgically. He had ongoing right knee pain and discomfort. His work for Australia Post exacerbated the problem at times. He had some time off work for this. Moving on to 1998 the applicant took some of this time off work. He claimed sick leave for those absences.
On 15 November 1999 the applicant's condition was exacerbated by his work. This led to him taking all of November and December off work. His general practitioner certified this as compensable leave. However, the applicant had used sick leave for this time off. He sought compensation to recover his sick leave entitlement.
The compensation claim was rejected because the delegate considered there was no evidence of any connection between work and the injury.
The applicant let the matter drop in January 2001 but changed his mind when he had further time off work. He saw a firm of solicitors in 2001 who advised that he had an entitlement to compensation but who failed to act to enforce the claim. He then saw his current solicitor who acted promptly to bring the matter to the tribunal.
The applicant is seeking incapacity payments for November-December 1999 and for later incapacity periods. He expects to claim medical expenses in the future if he succeeds before the tribunal.
Applicant's evidence
In Ex A3 the applicant swore to a number of matters. These included:
The applicant's work for Australia Post had involved mail delivery by motor cycle for about two years, work in the mail room in Civic for six and a half years, and work in the transport section at Fyshwick.
During 1999 there were problems with mail collections from two locations. The mail boxes were difficult to access in a large truck so the applicant skipped collection on some occasions. A later vehicle cleared these boxes. Australia Post disciplined the applicant. He was put onto a different run, known as a clearance run. He wrote, "The clearance run involved picking up mail from post offices and boxes. There was no power palette available and the job was extremely hard". This made his knee more sore. He had to lift some weights in excess of 16 kg. He did this job in the Woden area and lasted only one day.
He saw Dr G Eaton at Australia Post's request. He also saw Dr G Stubbs, his treating orthopaedic surgeon.
When he claimed compensation and that claim was rejected he had sought reconsideration. The reconsideration affirmed the original decision. When he received notice to that effect in early January 2000 he had been back at work several days. He wrote, "At that stage I did not want to pursue my compensation claim any further. At that time I had formed the view that I was back at work, the time off work had been paid as sick leave, I was not out of pocket as a result of being paid sick leave, and the job I was back into was actually paying about $20.00 a week more than my previous job and as such I was not worse off".
The knee continued to give problems in 2000. By February 2001 the "knee was causing more and more problems". He stopped work. He saw Dr Dowda, an occupational physician, at Australia Post's request in March 2001. Dr Dowda authorised the applicant's return to work. After three weeks the knee was more painful and had become more so as each week passed.
By 20 April 2001 the applicant formed the view that he could not continue at work. He saw a solicitor on 23 April 2001. The applicant thought he had a discrimination claim. At a second interview he was advised that he may have a compensation entitlement. On 23 April 2001 he phoned in sick at work and saw his general practitioner who certified him for four days off work. On 27 April 2001 he returned to work but by lunch time he could not continue work and went home.
In his oral evidence the following further information emerged. The 1971 knee operation had been largely successful. It was only from about 1998 that the knee became sore, notably in winters.
In 1998 the applicant was at the Fyshwick transport section. He had the odd few days off on sick leave. On 19 June 1998 he had knee problems, saw his general practitioner and was referred to Dr Stubbs. He gave Dr Stubbs a history but seems not to have discussed his 1998 duties. He was delivering mail in a van. This caused some soreness in his knee. He was doing a good number of clearance duties and was in and out of the van a lot. He had to lift heavy mailbags. He told the respondent of these problems only via sick leave request forms. He then moved to the road freight department where he was able to push mail around on a powered pallet.
The applicant was assigned to clearance duties at Woden as a disciplinary measure. This caused the problems on 15 November 1999 discussed earlier. While he was away from work he saw his general practitioner who certified him fit for light duties. However the respondent could not provide such duties.
Throughout 2000 the applicant's knee was still sore at times. By February 2001 he stopped work because of the knee. He saw Dr Dowda and returned to work on freight duties. He drove a truck and collected mail. He had problems doing this work and was in great pain by the third week. Australia Post gave him lighter work for a week and a half to two weeks. He ceased work on 20 April 2001. Australia Post treated him as on non-workers' compensation sick leave.
When the applicant saw solicitors in April 2001 he gave them a copy of the reviewable decision. No one told him that it was imperative that he appeal to the tribunal as soon as possible.
He eventually went to his current solicitor on 7 September 2001. That solicitor wrote to the earlier solicitor almost immediately seeking the file. It took two months before the file was provided. This application was made promptly thereafter.
In cross-examination the following emerged:
The applicant recalled reading the notice of rights in the letter informing him of the rejection of his claim for compensation (which is in Ex A4). He had some union assistance in writing the letter seeking reconsideration (Ex A4).
He applicant received and read the reviewable decision. That mentioned his 60-day period for an application to the tribunal. He was aware of that time limit from when he received the letter. Miss Henderson put to the applicant that this was inconsistent with his earlier evidence that he had first heard of the urgency of appealing from his current solicitor.
As at 6 January 2001 the applicant did not want to go to the tribunal. He said nothing to his employer about any dissatisfaction with the reviewable decision.
The applicant explained what was problematic about the work given to him to do on 15 November 1999. Although it involved driving the same type of van as he had driven in his previous duties, the frequency was different. He had to collect mail bags. They had a 16 kg limit but could be heavier. He had to lift a bag from hooks as a first step in identifying any that were excess in weight. He would move some mail from a heavy bag into a second bag to even out the weights. He did this job for only a day. He was rebuffed when he complained of the problems he had with this new job. However, by 3 January 2000 the problems were resolved. He was not upset by then. He had been concerned that his circumstances were not examined properly. He denied that he had used his knee as an excuse to escape the work at Woden.
The applicant had mentioned to his general practitioner on 17 December 1999 that he had been required to do alternative duties without being provided with a powered pallet (Ex A5, entry for 17 November 1999). Miss Henderson put to the applicant that the powered pallet was for work involving the loading of ULDs, a piece of Australia Post equipment. It was not intended for use in mail delivery work that the applicant was doing on 15 November 1999.
The applicant agreed that he had done road freight work through 2000-2001, duties that Dr Stubbs had said were suitable.
The applicant has done other work since finishing with Australia Post. He worked as a cleaner and also found work as a security officer at Parliament House. He is still employed by Australia Post but on non-compensation leave. He has told Australia Post only of the cleaning job.
Mr Pilkinton's final submissions
He referred to the tribunal's decision in Re Williams and Comcare [2001] AATA 985. An extension of time was granted in that case. In that case a solicitor for the applicant had caused delay as in the instant case. In paragraph 58 the tribunal cited the Federal Court holding in Comcare v A'Hearn (1993) 119 ALR 85 that a delay on the solicitor's part in commencing proceedings need not be visited on the client.
The applicant had a reasonable explanation for delay in proceeding until April 2001. He was back at work by 3 January 2000 on more money than before. Compensation was not worth pursuing. The position changed subsequently, however, when he had further periods of incapacity.
There was no real prejudice to the respondent. An incident report was lodged on 19 November 1999. A medical certificate was submitted. The applicant saw Dr Eaton at the respondent's request in mid-December 1999. The respondent was aware of the applicant's knee problems all along.
The only prejudice was the general prejudice that might be said to accrue against the interests of the public from the applicant's failure to agitate the matter after January 2000. This was very slight if present at all.
As regards the merits, the reviewable decision was clearly wrong. It is more probable than not that the applicant will succeed if he is granted an extension of time. The contemporaneous medical records show an aggravation of the right knee disability.
Miss Henderson's final submissions
As regards the explanation for delay, the applicant was aware in January 2000 of the need to apply within 60 days to the tribunal. The applicant was aware of his rights at all times up to April 2001 when he took steps to exercise them. He consciously chose not to move the matter forwards. He told no one in the respondent organisation that he might reopen the reviewable decision. He took sick leave for later periods off work.
Miss Henderson suggested that the respondent was prejudiced by any extension of time. She regarded the contemporaneous medical records as deficient. The delay had deprived Australia Post of obtaining others. The problems were:
He had told his general practitioner and Dr Stubbs that the lack of a power pallet was a factor on 15 November 1999 when a power pallet was not appropriate for the work he had on that day. He also told them that he had to climb in and out the van 50 or 60 times a day as part of his new duties on 15 November 1999. This was misleading. Indeed, Dr Stubbs thought the applicant was a postman (Ex A4, 1 December 1999). This was never accurate. Dr Stubbs' opinion was based on an inaccurate understanding of the situation. In his later report (Ex A4, 4 January 2000) Dr Stubbs has a better grasp of the applicant's work, however he is at the mercy of the applicant's account of matters. His comments on the changes in stress suffered by the applicant's knee were somewhat weak and stated to depend on the applicant's account.
There is prejudice because the respondent has not called for examinations in the interim period (January 2000 to April 2001) which would have shown whether the condition had improved. Dr Dowda's opinion was of little use. He was asked to advise on the safety aspects of the applicant being permitted to drive while prescribed Celebrex. He was not asked about the alleged injury in November 1999. Dr Dowda's version of events on that day was "almost unrecognisable".
Miss Henderson addressed the question of the wider prejudice that might attach if an extension is granted. There is a value in disputes reaching a finality within a reasonable time. She cited the decisions of Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (High Court) and Re Petrou and Australian Postal Corporation (1992) 25 ALD 407 (McGirr, Senior Member) as authorities.
As regards the merits of the applicant's case, it is far from clear that the reviewable decision is wrong. The applicant gave the general practitioner and Dr Stubbs an inadequate picture of his duties on 15 November 1999. He misrepresented the implications of deprivation of the motorised pallet. The doctors thought it was useable for moving mail bags around whereas it was used only for work involving ULDs. The vehicle he used on 15 November 1999 was the same as others he had used previously, contrary to the doctors' impressions. It is more probable that Dr Eaton's opinion will be accepted. The real issue was the applicant's disgruntlement at having been disciplined.
Mr Pilkinton responded. He observed that the Taylor (supra) authority related to a statute of limitations in the context of common law negligence and was doubtfully applicable here. He argued that Dr Stubbs was well versed in the applicant's duties. His report of 4 January 2000 indicated this. He also put that there was no evidence that the applicant claimed to have an aggravation of his knee disability merely to escape from a job he did not like. There was no evidence that he intended to mislead the employer.
Findings on material questions of fact with reference to the evidence and other material in support of the findings
In considering whether to grant an extension of time the Tribunal applies the principles in the Federal Court decision, Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315. There are a number of criteria that arise from that decision. These are most notably:
The applicant should provide a reasonable explanation for the delay. As Wilcox J says in his decision (at page 320):
"Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need to be shown but the court will not grant the application unless positively satisfied that it is proper to do so. … It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an 'acceptable explanation of the delay' and that it is 'fair and equitable in the circumstances' to extend time."
The applicant should have taken action other than this application to make the decision-maker aware that he or she contests the finality of the decision.
The respondent should not be unduly prejudiced if the time is extended.
The merits of the substantive application are properly to be taken into account in considering whether an extension is to be granted.
There are some additional matters to note.
In the Cohen case (supra) an additional criterion was identified, however, in the current tribunal's view it has relevance in only some situations. This criterion is "considerations of fairness as between an applicant and other persons otherwise in a like position". It has no relevance in the present case.
Other cases have laid down principles that are broadly consistent with those in Cohen (supra). In Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42 President O'Connor said at page 48:
"The principles to be applied in considering an application for extension of time under s 29(7) … are:
(i)prima facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so.
(ii)it is relevant whether the applicant rested on his [or her] rights or took action to make the decision maker aware that the decision was being contested;
(iii)any prejudice to the respondent that would be caused by granting the extension of time is relevant;
(iv)any wider prejudice to the general public in terms of disruption to established practices is relevant;
(v) the merits of the substantial application are relevant; and
(vi)fairness of granting an extension of time as between the applicant and other persons in like position is relevant."
The wider prejudice to the general public, as it may be balanced against the interests of the individual applicant receives attention in other cases.
In the Taylor case (supra) McHugh J discussed the reasons for limitation of actions. At pages 551-552 he makes the following comments:
"The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates'. …
"…it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed. …
"A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. 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 that the cause of action arose. …
"The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even 'cruel' to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period."
In Petrou (supra) at 411 the Tribunal cited with approval a comment by Deputy President McMahon in an earlier decision where he said:
"Any delay, of course, is prejudicial. The more time that elapses between the events to be examined and the date of the 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."
Senior Member McGirr said on the same page:
"Courts and tribunals ought as far as possible to assist litigants and the profession in the timely and efficient disposition of cases. At some point in time parties and their legal representatives ought to be able to consider that a case has been finalised."
However, in the Taylor case (supra) Toohey and Gummow JJ state at page 550:
"The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent."
Kirby J at page 573 says:
"In judging prejudice, for the purpose of considering the order extending time, the matter to be weighed is the increase of prejudice after the expiry of the ordinary period of limitation. Until that time the law, as expressed in the Act, envisages that the defendant must accept any prejudice or delay without complaint."
In the present case the applicant has provided an explanation for delay. The tribunal is satisfied that the explanation is satisfactory for the period from April to November 2001. The tribunal accepts, in accordance with Comcare v A'Hearn (supra), that the solicitor's delay need not, and should not, be visited on the applicant. His natural demeanour was moderate and self-effacing. He could not reasonably be expected to take the whip hand against solicitors whom he could reasonably expect to be acting in his best interests.
The tribunal has greater difficulty with the delay from 6 January 2000 to 23 April 2001 when he saw the first solicitor. His evidence, that he was aware that an application to the tribunal should be lodged within 60 days, that he did not want to appeal to the tribunal on 6 January 2000, that he had returned to work on more money and compensation seemed not worth pursuing, was not strictly satisfactory as an explanation for delay. This appears to the tribunal to be a classic example of a case where a "litigant" has decided not to litigate but then changed his or her mind after the limitation period has expired because the stakes had come to appear higher. This appears the very "mischief" that limitation periods are meant to deal with. The case appears vulnerable in accordance with the principles as to finality of actions set out above in the extracts from the Taylor (supra) and Petrou (supra) cases.
The tribunal is aware that in the A'Hearn case (supra) the court said that the absence of a satisfactory explanation for delay need not be fatal to the grant oif an extension of time. However, in the present case, the tribunal considers that the nature of the applicant's explanation is highly prejudicial to his application.
The applicant concedes that he did not agitate his case in other forums during the period of delay. That criterion therefore also tells against him.
The tribunal is inclined to prefer the applicant's arguments about prejudice to the respondent. There is considerable evidence available from 1999-2000 concerning the applicant's condition. To the extent that this is based on vulnerable premises, the respondent can point that out if the matter proceeds to a hearing. The tribunal is not much impressed by the argument that the respondent lost the opportunity to examine the applicant in the latter part of 2000 and in 2001. In the tribunal's view, given the nature of the applicant's disability, it is highly unlikely that his condition would have improved in that time period. In any case, it would be for the applicant to provide enough evidence to establish at least a prima facie case in favour of compensation. Although he has no strict onus of proof (McDonald v Director-General of Social Security (1984) 1 FCR 354), in the absence of favourable evidence from elsewhere, he will lose if he cannot produce some evidence himself. The tribunal addressed this matter in Re Vickery and Commonwealth of Australia (1985) 8 ALD 93 where it said at page 103:
"The only person who will be significantly prejudiced by the 39 year gap between the alleged onset of injury and the making of a claim, will be the applicant himself. It will be for the applicant to bring forward facts which would have entitled him to compensation under the repealed Act. He will have to persuade the [decision-maker] that noise levels at the factory were sufficiently high, over a sufficiently long period of time, to cause or aggravate hearing problems. … It is difficult to conceive of the respondent's case being anything other than assisted by the gap between alleged injury at work and claim".
As regards the merits of the applicant's case, his position appears at least arguable. As the Treloar case (Treloar v Australian Telecommunications Commission (1990) 26 FCR 316)) shows, all that the tribunal would need to find in order to decide in the applicant's favour is some contribution, even small, to the applicant's condition as at 15 November 1999 caused by his work. Even if the medical experts at the time were misled to a degree by the applicant in his history of events, in the tribunal's view Dr Stubbs's report of 4 January 2000 suffices to show that the applicant has a reasonable case to take before the tribunal. Dr Stubbs had had specialist responsibility for the applicant's knee for quite some time before 15 November 1999. He had the opportunity to examine the knee in November and December 1999. In his report of 4 January 2000, in the tribunal's view, he demonstrates an accurate understanding of the applicant's work duties as they then were and as they had been. His opinion is apparently cogent in the tribunal's view.
The tribunal has decided that the applicant's subjective decision not to pursue his rights, in full knowledge of what those rights were, is an extremely weighty factor in this scenario. It is true that the applicant's period of delay in seeking legal advice, about 15 months, is shorter than we see in many other cases of this sort in the tribunal. However, it is rare to find an applicant who has decided to do nothing in full knowledge of the consequences. It may be correct that failure to offer a satisfactory explanation for delay need not be fatal to an application for an extension of time. However, in this case it is not possible to find other extenuating features that enable the tribunal to disregard how the delay in this case came about. As was said earlier, this appears the type of case that McHugh J had in mind in the Taylor case (supra) when discussing the reasons for limitations of actions.
Conclusion
The tribunal has decided that it would be inappropriate in this case to grant the applicant an extension of time within which to lodge his application for review. This is because of lack of a satisfactory explanation for the great part of the period of delay and because of his failure to agitate the matter in any other forum.
Decision
The tribunal rejects the applicant's application for extension of time for lodging his application for review of the reviewable decision. The applicant is entitled to no costs associated with this application or the application for review.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
AssociateDate/s of Hearing 4 February 2002
Date of Decision 21 February 2002
Counsel for the Applicant Mr S Pilkinton
Solicitor for the Applicant Pamela Coward and Associates, Canberra
Counsel for the Respondent Ms R Henderson
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