Ryan and Australian Postal Corporation
[2001] AATA 920
•7 November 2001
DECISION AND REASONS FOR DECISION [2001] AATA 920
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1541
GENERAL ADMINISTRATIVE DIVISION )
Re David RYAN
Applicant
And AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal M J Sassella, Senior Member
Date7 November 2001
PlaceSydney
Decision The Tribunal decides that it should not exercise its discretion to extend the time for the Applicant to make an application to the Tribunal for a review of the Respondent's decision of 23 February 2000.
..............................................
Senior Member
CATCHWORDS
WORKER'S COMPENSATION – application for extension of time in which to lodge an application for review – lack of awareness of 60 day time limit – explanation for delay acceptable – no agitation in other forums – considerable prejudice to respondent if extension granted – merits of substantive case – extension of time not granted
Safety, Rehabilitation and Compensation Act 1988 s65(1), (4)
Administrative Appeals Tribunal Act 1975 ss29(1), (2)(a), (7)
Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315
Re Mulheron and Australian Telecommunications Commission (1991) 23 ALD 309
Comcare v A'Hearn (1993) 119 ALR 85
Re Petrou and Australian Postal Corporation (1992) 25 ALD 407
Harris v Moore (1993) 34 ALD 333
REASONS FOR DECISION
7 November 2001 Senior Member M J Sassella
CHRONOLOGY
Much of this comes from Ex A3 and the applicant's oral evidence.
Mr David Ryan ("the Applicant") was born on 8 November 1963. He was employed by Australia Post ("the Respondent") as a telegram deliverer in about May 1990. He went on to become a postal delivery officer at Campsie Post Office. He did this for about five years. In 1992 or 1993 the Applicant injured his lower back when lifting a mailbag. He had three or four days off work and received compensation.
In about 1996, during a stint of two or three years as a postal delivery officer at Ashfield Post Office, he again injured his back when he hit a bump while riding his Australia Post motor bike delivering mail. He injured his lower back and had diagnosed an intervertebral disc bulge at L4/5. He had about four weeks off work and received compensation. Physiotherapy was covered also by compensation.
The Applicant next worked at Croydon Park Post Office delivering mail. He injured his back while entering his car. He claimed compensation but this claim was rejected. He had several days off work.
The Applicant moved to other post offices at Botany and Silverwater. At Silverwater he injured his back again and was put onto night sorting duties. He sought to return to delivery work but this was refused. The Applicant had lower back pain late in 1999 so that he was on sick leave between 24 November and 2 December and between 10 and 12 December 1999. He subsequently had six months off work and resigned from Australia Post in May 2000 because of continuing lumbar spinal problems. He then tried courier work, work as a machine operator and work unloading containers. In Ex A3 he wrote, "I found that those duties affected my lower back".
The Applicant lodged a claim in December 1999 in respect of an injury to his lower back. On 10 January 2000 the Respondent rejected that claim (Ex R1). On 8 February 2000 the Applicant requested a reconsideration (Ex R1). On 23 February 2000 the Respondent affirmed the original decision (Ex R1). On 9 October 2001 the Applicant lodged with the Administrative Appeals Tribunal ("the Tribunal") an application for review of the decision of 23 February 2000 (Ex A1). Attached was an application for an extension of the time within which he could lodge the application for review (Ex A2).
HEARING AND APPEARANCESOn 2 November 2001 the Tribunal convened in Sydney a hearing to consider the application for an extension of time. Mr Paul Henderson of counsel represented Mr Ryan. Miss Rhonda Henderson of counsel represented the Respondent.
At this hearing the Tribunal had access to the following documentary material that was taken into evidence.
Exhibit A1 – Applicant's application for review, 9 October 2001.
Exhibit A2 – Applicant's application for extension of time for lodging application for review of decision, 9 October 2001.
Exhibit A3 – Applicant's affidavit, 20 October 2001.
Exhibit A4 – Various medical reports provided by Applicant.
Exhibit R1 – Respondent's reviewable decision, 23 February 2000.
Exhibit R2 – Letter dated 17 October 2001 from Respondent to the Tribunal.
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).
The Safety, Rehabilitation and Compensation Act 1988 s 65(1), (4):
Modifications of the Administrative Appeals Tribunal Act 1975
65. (1) This section has effect for the purposes of the
application of the Administrative Appeals Tribunal Act 1975 (in this
section called "the Act") in relation to a reviewable decision.
…
(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".
The Administrative Appeals Tribunal Act 1975 ss 29(1), (2)(a), (7):
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).
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIALS IN SUPPORT OF THOSE FINDINGS
10.Section 29(7) of the AAT Act permits the Tribunal to agree to an extension of time. That provision requires that there must be a written application for the extension. The Tribunal finds that the Applicant has made such written application in the form of Ex A2.
11.The Tribunal then has, under the provision, an open discretion to extend the time for the Applicant to make an application to the Tribunal for a review of the reviewable decision.
From decided cases such as Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315 and Re Mulheron and Australian Telecommunications Commission (1991) 23 ALD 309 the issues of relevance in considering whether to exercise that discretion are the following:
Whether the Applicant has a satisfactory explanation for delaying the application.
Whether the Applicant agitated the matter in other forums.
Whether the grant of an extension of time would prejudice the Respondent.
The merits of the substantial application.
13. Miss Henderson addressed also "any wider prejudice to the general public in terms of disruption to established practices" and "fairness of granting the extension of time as between the Applicant and other persons in a like position".
Satisfactory explanation
14. In the Federal Court in Comcare v A'Hearn (1993) 119 ALR 85 it was said that while it to be expected that an acceptable explanation will normally be given, as a relevant matter to be considered, it is not an essential precondition.
The Applicant's explanation for his delay in appealing to the Tribunal, a delay of about 18 months, consisted of several explanations in fact. These were:
In Ex A2 the Applicant said that he had been awaiting papers from a previous solicitor.
In Ex A3 the Applicant said that he was "frustrated that [his] employer did not believe that [his] lower back problems were work related and [he] hoped [his] lower back would improve to an extent which would allow [him] to find other employment which [he] could perform and not injure or aggravate [his] lower back. … [He] felt [he] could not and did not want to deal with the review procedure as [he] had had enough having regard to the fact that [he] had truthfully informed [his] employer about [his] condition and [he] was not believed. [He] did not understand, nor was [he] told by anyone, that if the application for review was not made within time that [he] could not automatically seek to pursue [his] claim. If [he had been] aware [he] would have pursued [his] claim." He was prompted to make the application to the Tribunal when his general practitioner told him that he could not perform manual work because of his lower back condition.
The Applicant gave oral evidence suggesting that he felt betrayed by Australia Post when it refused to accept his December 1999 claim. He took it that they did not believe him. He felt this was unfair after he had given 10 years of loyal service to the extent that he had not claimed overtime on occasions when he had worked excess hours. He said he was frustrated and felt betrayed. It seems that this was the reason for his failure to apply for review in 2000. In a sense he was too disappointed to take the matter further.
The Applicant understood that he could seek a reconsideration of an adverse primary decision. He had done this. He said that he was also aware of a 60-day time limit for appeal but he was vague as to whether he thought that applied to seeking a reconsideration or to appealing to the Tribunal.
The Applicant denied that he had been given any understanding that it was essential to appeal to the Tribunal within 60 days of receiving the reviewable decision.
16. The Tribunal finds that the Applicant, on his evidence, had effectively decided not to appeal against the reviewable decision when he received it in February 2000. On his own evidence he wanted to leave Australia Post. He told the Tribunal that he had always intended, since joining Australia Post in 1990, to leave it after about 10 years. He thought his back would improve and that he was employable elsewhere. The Tribunal finds that it was only when told by his treating doctor that his back condition would prevent him from doing any manual work that he decided to apply to the Tribunal. The Tribunal finds that the Applicant was ignorant of the 60 days time limit for applying to the Tribunal. The reviewable decision refers (Ex R1) to the possibility of an appeal, but it does not mention the 60 days requirement. A notice of rights was apparently enclosed but a copy is not before the Tribunal.
17. The Tribunal finds on this evidence that the Applicant's explanation for delay is acceptable. A substantial aspect of his reasoning was that he thought his back would improve, although admittedly other factors were also at play in his decision. In the Tribunal's view, it is probably usually preferable for an employee who considers bona fide that his or her condition will improve not to apply to the Tribunal. To suggest otherwise might be to encourage speculative, vexatious or bogus applications.
Agitation in other forums
18. The only evidence suggesting any such agitation came from the Applicant in oral evidence when he said he thought he had written several, two or three, letters to the reconsiderations officer in Australia Post. It was inferred that all but one of these followed the reviewable decision. Had the Applicant done this it could amount to agitation of the matter with the insurer pending the appeal to the Tribunal. However, no such additional letters were on the Australia Post files available in the Tribunal room, and the array of files appeared complete. The Tribunal notes that it is perhaps not surprising that there was no agitation in other forums, given the Applicant's expectation that his back would improve over time.
The Tribunal finds that there is no sustainable evidence that the Applicant suggested to anyone in authority in Australia Post, or elsewhere, that he was dissatisfied with the reviewable decision.
Prejudice to the Respondent
Miss Henderson submitted that Australia Post, having no notice of the Applicant's intention to dispute the reviewable decision, lost any opportunity to have up to date medical examinations completed. The Applicant's evidence was that in the time between leaving Australia Post and lodging his application for review he had done manual work and it was suggested that any back problems now seen on examination might be attributable to those jobs rather than the Australia Post job.
The Tribunal sees considerable force in this argument. It is perhaps unfortunate that the Applicant may have been disadvantaged because he had a work ethic that prompted him to do work after leaving the Respondent's employ. However, the Tribunal finds favour with the Respondent's argument. The Tribunal finds that there would be considerable prejudice to the Respondent if an extension of time is granted.
Merits of the substantial case
The reviewable decision (Ex R1) canvasses reasons for the rejection of the Applicant's claim. They include discrepancies in documents as to the date of onset of spinal problems in November-December 1999.
The Respondent pointed out that the Applicant's medical evidence does not relate his injuries to his work duties. The Applicant was said by Miss Henderson to have adduced no evidence on this point. The Tribunal could therefore decide against the Applicant on that criterion (Harris v Moore (1993) 34 ALD 333). That is basically correct. However, Ex A4 was a bundle of medical and similar reports. These indicate the following.
A report of 25 March 1993 refers to a workplace accident associated with lower back pain. This would have related to an earlier compensation claim.
There are Australia Post determinations to pay the Applicant compensation. These date from 1993 and 1996.
There is a lumbar spine CT scan dated 12 June 1996.
There are medical certificates from July 1996 and December 1999 but they do not record how the injury occurred or whether the Respondent's workplace was implicated in the injury.
There is a sick leave application dated 16 December 1999. This does not clearly connect the injury with the workplace.
There is a return to work form dated 17 December 1999 saying the Applicant was fit to return to work subject to restrictions. There was no work-connection with the injuries alleged.
There were two Centrelink medical certificates for the year 2000. They identify an injury but do not expressly link it with work.
In the Tribunal's view it is not possible to obtain a reliable impression of the strength of the Applicant's case on the evidence at hand. However, the Applicant appears to have substantial organic injuries to his spine and they are of a kind that might be expected of a postal worker. On balance, the Tribunal finds that the Applicant has an apparently arguable case. This should suffice for satisfaction of the "merits" criterion.
Wider prejudice
Miss Henderson addressed the question of any wider prejudice to the general public in terms of disruption to established practices. She relied on such authorities as Re Pertrou and Australian Postal Corporation (1992) 25 ALD 407 to argue for the social interest in there being a timely and efficient disposition of cases and an interest in the settlement of liabilities within defined periods.
The Tribunal accepts this point but sees it as part of the fundamental proposition that the onus is in fact on an applicant for an extension of time to satisfy a court or tribunal as to these various matters under discussion.
Fairness as between the Applicant and others in a like position
Miss Henderson suggested that the Tribunal could find against the Applicant on this criterion. That is because extending time for him to apply to the Tribunal could have the effect of delaying the disposal of applications lodged within time by other applicants challenging compensation decisions.
The Tribunal considers this a reasonable point but would expect any such delay to be minor in the overall scheme of things. The Tribunal would not regard this as a primary point against the Applicant's application.
CONCLUSION
The Tribunal has decided that it ought not to grant an extension of time to the Applicant. The primary reason is the force of the arguments, and consequent findings above, that the Respondent would be prejudiced if an extension of time is granted.
DECISION
The Tribunal decides that it should not extend the time for the making of an application by the Applicant to the Tribunal for review of the reviewable decision dated 23 February 2000.
I certify that this and the 10 preceding pages are a true copy of the reasons for the decision herein of Senior Member
M J SassellaSigned: .....................................................................................
AssociateDate/s of Hearing 2 November 2001
Date of Decision 7 November 2001
Counsel for the Applicant Mr Paul Henderson
Solicitor for the Applicant Shanahan Tudhope, Solicitors
Counsel for the Respondent Miss Rhonda Henderson
Solicitor for the Respondent Graham Jones Lawyers
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