Ruggeri, Francesco v Telstra Corp Ltd
[1996] FCA 538
•4 JULY 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No VG 444 of 1993
)
GENERAL DIVISION )
ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: Francesco Ruggeri
(Applicant)
AND: Telstra Corporation Ltd
(Respondent)
JUDGE MAKING ORDER: Ryan J
DATE: 4 July 1996
PLACE: Melbourne
MINUTES OF ORDER
THE COURT ORDERS:
That the application be dismissed with costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No VG 444 of 1993
)
GENERAL DIVISION )
ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: Francesco Ruggeri
(Applicant)
AND: Telstra Corporation Ltd
(Respondent)
CORAM: Ryan J
DATE: 4 July 1996
PLACE: Melbourne
REASONS FOR JUDGMENT
RYAN J: This is an application by way of appeal from a decision of the General Division of the Administrative Appeals Tribunal ("the Tribunal") published on 22 September 1993, whereby the Tribunal decided that the applicant's application for an extension of time within which to review the decision of the respondent dated 19 March 1992 pursuant to s. 29(7) of the Administrative Appeals Tribunal Act ("the AAT Act") be refused.
By his notice of appeal to this Court the applicant seeks an order setting aside the decision of the Tribunal and an order
that the time within which to review the decision of the respondent be extended to 30 April 1993.
Background
The applicant, Mr Ruggeri, has suffered a number of injuries in the course of his employment which have been accepted as work-related injuries. In that time he has been employed by the respondent and its predecessor entity, the Australian Telecommunications Corporation. The application to the Tribunal for continued compensation was in respect of injuries to the applicant's knees and back.
In March 1968, the applicant suffered an injury to his left knee and in October 1969 an injury to his back. In May 1980 he aggravated the left knee injury and in July of that year an arthroscopic examination was performed by Mr Quirk, an orthopaedic surgeon. In 1984 the applicant suffered a further injury to his back and right knee for which liability was accepted by the respondent. In March 1987 he made an application for lump sum compensation but that application was never pursued. In July 1988 Mr Quirk carried out further operations on the applicant's knees. In January 1990 the applicant made a claim for the cost of converting his car from manual to automatic transmission. Mr Quirk and Mr Davie, another orthopaedic surgeon, agreed that the applicant would benefit from driving an automatic car. The applicant had been in receipt of compensation payments under the Commonwealth Employees' Rehabilitation and Compensation Act 1988 for incapacity resulting from his injured back and osteoarthritis of both knees.
At the respondent's request, on 4 April 1991 the applicant presented for a medical examination by Mr Davie. Mr Davie reported that any symptoms that the applicant had were "due to the natural progression of the underlying degenerative conditions in the back and both knees." Mr Davie's report was referred by the respondent to Mr Philip Zlatnik for comment. The latter specialist stated that he concurred with the opinions of Mr Davie save for the expression of the view that the applicant would benefit from the conversion of his car to automatic transmission. In a supplementary report, Mr Davie confirmed his earlier opinion. A report to the contrary was supplied to the respondent's delegate by another orthopaedic surgeon who believed that the applicant's injuries resulted from the aggravation of a pre-existing condition which had occurred on 12 May 1988. A delegate of the respondent, Elisa Fortunato, on 14 October 1991 determined that the respondent's liability for compensation should cease on and from 4 April 1991.
By letter dated 8 October 1991 the applicant sought reconsideration of the determination. The respondent arranged for the applicant to be examined by Mr Chamberlain on 26 February 1992. Upon review of the file and Mr Chamberlain's report, a determination ("the reviewable decision") was made by the reconsiderations delegate for the respondent who affirmed the original determination dated 14 October 1991. The reviewable decision and covering letter were both dated 19 March 1992 and sent by certified mail to the applicant's residential address. A receipt signed by the applicant's wife dated 24 March 1992 acknowledged receipt of the letter and reviewable decision.
On 3 May 1993 the applicant's legal representative lodged an application with the Tribunal for review of the reviewable decision together with an application for an extension of time within which to lodge it.
The Tribunal's Decision
In the course of its reasons for decision refusing an extension of time, the Tribunal referred to the original determination dated 14 October 1991 and noted that the maker of that determination had relied on the report made on 5 April 1991 by Mr B. Davie, orthopaedic surgeon, which included the following passages:
On the balance of probabilities there was some aggravation of his lumbar degenerative disc disease and osteoarthritis of both knees as a result of the incident on 26.9.1984 and his employment generally.
I believe that the aggravation was of a temporary nature and one would expect the effects of the aggravation to cease when he stopped heavy manual work which would seem to be at least several years ago.
Any symptoms he has now is due to the natural progression of the underlying degenerative conditions in the back and both knees.
The Tribunal further noted the report by Mr Zlatnick concurring with Mr Davie's opinion and a contradictory report of 4 October 1991 by the applicant's treating surgeon, Mr Quirk, reiterating that specialist's belief that the applicant's injuries had resulted from an aggravation, on 12 May 1988, of a pre-existing condition. As well, reference was made in para. 9 of the Tribunal's reasons to a report dated 9 February 1993 to the respondent by yet another orthopaedic surgeon, Mr Turner, who advised, amongst other things:
The symptoms Mr Ruggeri is experiencing in his left knee are related to the severe degenerative changes that are demonstrated on the x-rays. These changes will to some extent be age related in view of the changes that are also appearing in the un-injured right knee but there is no doubt in my own mind that the injury that occurred in 1968 was a significant event with regard to his knee and is the reason why that knee is now far more severely effected (sic) than the right knee...
As far as concerned the delay by the applicant in applying for a review of the reviewable decision, the Tribunal found that the applicant did not, in fact, contact his solicitor as soon as he became aware of that decision. Rather, the Tribunal fixed the time at which the applicant first felt the effect of the reviewable decision by reference to the return to him without payment of certain pharmacists' receipts. The findings on this issue are set out as follows in para. 14 of the Tribunal's reasons for decision:
... The applicant told the Tribunal he could not remember when the receipts were returned to him but that it was prior to 1993. Having considered all the evidence I find on the balance of probabilities that the receipts were returned to the applicant some time after he took sick leave in September 1992 but before Christmas 1992. The applicant agreed in cross-examination that he had "let it go". He thought that he had found the letter and enclosed reviewable decision in a cupboard after the chemist's accounts were returned to him. He therefore had knowledge of the reviewable decision some time before he attended his solicitor and it is somewhat surprising that he only took a copy of the initial determination to his solicitor rather than the reviewable decision or that he did not at least inform his solicitor of the reviewable decision. The Tribunal accepts that the applicant relied on his daughter to seek review of the initial determination and that she was not around when he first became aware of the reviewable decision.
After distilling from various decided cases certain propositions said to embody principles applicable to the grant or refusal of applications for extension of time in cases like the present, the Tribunal continued in paras. 18 and 19 of its reasons for decision:
It was the applicant's contention that he would be prejudiced if he was not now given the opportunity to have the issue of his continuing entitlement to compensation reviewed. The applicant has now lodged a further claim for compensation with respect to aggravation of his underlying condition. Mr Sirca put to the Tribunal that, as the applicant is still employed his file would still be open and there would be little prejudice to the respondent as a result of the delay. The Tribunal notes that there are matters of public concern including the need for finality in disputes and the efficient use of public resources. Mr Sirca submitted that memories would not have faded and that the applicant's actions with respect to compensation throughout his employment with the respondent were consistent with him challenging the determination and the reviewable decision. The Tribunal does not accept that the action the applicant took on or about 14 May 1987 when he sought a lump sum payment with respect to his injuries should be read in this light even though it is his contention that he has not received a response from the respondent to that request. The fact that the applicant has not pursued that claim more actively and the rest of the evidence before me leads me to reject Mr Sirca's submission that the applicant's past actions were consistent with him challenging the decision the subject of the present application. Rather, the evidence before me leads me to find that, as long as the applicant continued in regular employment he was not too concerned about paper-work with respect to any rights he may have under the Act and that he has rested on his rights.
The delay in this application is lengthy. The applicant has given an explanation of the cause of part of the delay, that is, he was unaware of the reviewable decision for sometime. However, I find that he did become aware of the reviewable decision well before he took any action by way of seeking advice from his solicitor. There is some prejudice to the respondent in the reopening of a matter which was considered closed and which relates to findings as at 4 April 1991.
The Tribunal then returned to the conflicting state of the medical reports about the applicant's condition, observing at para. 20:
The applicant has lodged a report from Mr P. Turner, orthopaedic surgeon (paragraph 9 above) in which Mr Turner expresses the opinion that the severe degenerative changes demonstrated on x-rays of the applicant's knees are to some extent age related but there is no doubt in Mr Turner's mind that the injury which occurred to the applicant in 1968 was "a significant event with regard to his knee and is the reason why that knee is far more severely effected (sic) than the right knee". Mr D. Chamberlain advised the respondent in a report dated 26 February 1992 that although he believed there had been some transient aggravation by the incidents described by the
applicant he did not feel the nature of the applicant's employment in general was causing any significant continuing exacerbation or acceleration. Mr Chamberlain did believe that the applicant has "assessable permanent damage of his legs". On 1 July 1991 Mr Davie reported that the applicant was suffering from osteo-arthritis of both his knees which had been aggravated by an incident on 26 September 1984 and by his employment generally, however, in his opinion they were no longer aggravating factors. Mr Davie understood the applicant was doing relatively light work while acting as a supervisor and in his opinion his employment would no longer be a factor in producing arthritic symptoms in his knees. To some extent Mr Davie's understanding was incorrect. The Tribunal accepts the evidence of the applicant that shortly prior to Christmas 1992 his duties as a supervisor required him to walk up and down hills when he was working around Orbost resulting in pain in his knees. It appears that the applicant has lodged a claim with respect to this.
In conclusion, the Tribunal came down against granting the extension of time. That conclusion was expressed as follows in para. 21 of its reasons for decision:
The medical practitioners do not appear to be in agreement as to which incidents have aggravated the applicant's condition. Incidents in 1968, 1984 and 1988 are referred to by the specialists. In turning my mind to the merits of the substantial application and the other principles to be considered I have decided that fairness and justice as between the parties is served by not extending the time within which to allow the applicant to lodge his application for review of the reviewable decision made 19 March 1992 to 3 May 1993. I have given careful consideration to the medical evidence, particularly the report of Mr Chamberlain, but the merits of the applicant's case are not such as to satisfy me that time should be extended for such a lengthy period.
That passage, in the context of the reasons as a whole, makes it clear that the Tribunal took into account the delay between the end of 1992 when the applicant had at least constructive notice of the reviewable decision and the lodging of his application on 3 May 1993. It then examined the "merits of the substantial application" which were correctly perceived to turn on a resolution of the conflict between different expressions of medical opinion.
Was there an error of law?
The task to which the Tribunal directed the reasoning which I have just summarised is that imposed by sub-ss. 29(7) and (8) of the AAT Act which provide:
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).
The time for making an application to the Tribunal for a review of a decision may be extended under sub-section (7) although that time has expired.
Those sub-sections confer on the Tribunal an unfettered discretion which must be exercised judicially having regard to the relevant facts. See e.g. Maric v Comcare (1993) 40 FCR 244 per O'Loughlin J at 246 applying Duff v Freijah (1982) 62 FLR 280 at 285. The application to this Court is confined by s. 44(1) of the AAT Act to an appeal on a question of law which lies within the original jurisdiction of the Court. Even if the appeal were not so confined, it would not be open to this Court, consistently with the well-established principles enunciated e.g. in House v The King (1936) 55 CLR 409, to exercise for itself the discretion which the legislature has entrusted to the Tribunal. It must be shown that the Tribunal has acted upon some wrong principle, has taken into account an irrelevant or extraneous factor, or has failed to take into account some material consideration. The application of that principle may involve a detailed scrutiny of the Tribunal's reasons for decision. However, as a Full Court of this Court has indicated in Commonwealth Banking Corporation v Percival 1988 82 ALR 54 at 60:
Such reasons ought not to be examined with an unduly critical or technical eye but should be read fairly with each sentence being weighed up and considered in the context of the whole.
Mr Tobin of Counsel for the applicant argued that the approach taken by the Tribunal in the present case involved a denial of procedural fairness in that it had never been indicated in the course of the hearing that the Tribunal's assessment of the applicant's prospects of success on the "merits" based on its review of the conflicting medical reports would assume such critical importance in its resolution of the application for an extension of time. When examined with the generosity of approach approved by the Full Court in Percival (supra) the Tribunal's reasons show that it did not purport to determine the merits for itself as it would have been required to do had it granted the extension of time. What it did was to first express a tentative or provisional view that an extension should not be granted having regard to the public interest in achieving finality in the administration of claims like that of the applicant, the length of unexplained delay in seeking a review, the applicant's having "rested on" his rights and the presumed prejudice to the respondent. Each of those was a matter properly open to be taken into account; see e.g. Hickey v Australian Telecommunications Commission (1983) 47 ALR 517 (public interest in achieving finality); Duff v Freijah (supra) at 485 (unexplained delay); Doyle v Chief of Staff (1982) 71 FLR 56 at 60 (applicant "resting on his rights") and Maric v Comcare (supra) at 249 (presumed prejudice to the respondent).
Having reached that tentative view, the Tribunal then indicated that, in the light of the conflicting medical reports, it was not persuaded that the applicant's case on the substantive application was so assured of success that the balance of the discretionary factors had swung in favour of the grant of an extension of time. The Tribunal's reasons reveal that its general assessment of the strength of the applicant's case on the "merits" was thus determinative only in the sense that it was the last part of the matrix of relevant considerations to which attention was directed. An evaluation of the merits of the proposed substantive application is clearly relevant to the exercise of discretion to extend time (Lucic v Nolan (1982) 45 ALR 411 at 417). The Tribunal's assessment of the merits in accordance with that principle was clearly not allowed to dictate the result without reference to the other matters which the Tribunal had identified earlier in its reasons. Nor have I been directed to any other matter available on the evidence which the Tribunal should have taken into account but which it overlooked. I can therefore detect no error of legal principle in the Tribunal's approach and, accordingly, the application must be dismissed with costs.
I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment of his Honour Justice Ryan.
Associate:
Date:
Counsel for Applicant : Mr T. Tobin
Solicitors for Applicant : McMullin Coate & Co
Counsel for Respondent : Mr M. McInnis
Solicitors for Respondent : Home Wilkinson & Lowry
Date of Hearing : 23 June 1995
Date of Judgment : 4 July 1996
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