Sculli and Australian Postal Corporation
[2002] AATA 507
•26 June 2002
DECISION AND REASONS FOR DECISION [2002] AATA 507
ADMINISTRATIVE APPEALS TRIBUNAL Nº N 2001/1318
GENERAL ADMINISTRATIVE DIVISION
Re: Giuseppe Sculli
Applicant
And: Australian Postal Corporation
Respondent
DECISION
Tribunal: Mr P.J. Lindsay, Senior Member
Date: 26 June 2002
Place: Sydney
Decision:The Tribunal refuses to extend time for making an application for review of the reviewable decision.
[SGD] Senior Member
CATCHWORDS
COMPENSATION - extension of time - industrial hearing loss - fresh information - causation - application refused
Administrative Appeals Tribunal Act 1975 - s.29
Safety, Rehabilitation and Compensation Act 1988 - ss.62, 127
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Zizza v Commissioner of Taxation 99 ATC 4,711
Comcare v A'Hearn (1993) 119 ALR 85
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Commissioner of Taxation v Brown 99 ATC 4,852
REASONS FOR DECISION
Mr P.J. Lindsay, Senior Member
This is an application by Mr Giuseppe Sculli, the applicant, for an extension of time within which to review a decision by the respondent, Australian Postal Corporation (the Corporation), in relation to Mr Sculli's industrial deafness. Mr Sculli claimed compensation for industrial deafness in 1987. The Corporation made a reconsideration decision on 31 May 1990 affirming a determination made on 13 January 1988 to disallow the claim.
At the hearing Mr S Dixon of counsel appeared for Mr Sculli and Mr B Kelly of counsel appeared for the Corporation. Mr Sculli gave evidence with the assistance of an interpreter in the Italian language. The Tribunal had before it the exhibits tendered by the parties.
ISSUEIn opening, Mr Dixon said that the application before the Tribunal was for an extension of time in relation to an application for review of a determination by the Corporation regarding Mr Sculli's loss of hearing. The Corporation made its determination in May 1990.
The background to the extension of time application includes Mr Sculli's lodging a claim for rehabilitation and compensation on 19 April 2001 in respect of an injury he described as "industrial deafness" (Exhibit A1 fol. 49). The Corporation responded by letter dated 15 June 2001 to Mr Sculli's solicitors as follows:
I refer to your correspondence and claim for compensation in respect of industrial deafness for your client Mr G. Sculli.
A claim from Mr Sculli for this same condition and circumstances has been submitted by your client and determined by Australia Post. Copies of documents related to that determination are enclosed for your information.
I do not propose to issue any further determinations with regard to this matter.
Mr Sculli's solicitors wrote back to the Corporation on 10 July 2001 (Exhibit A1 fol.73):
… We kindly request a re-consideration of the above matter based on the Medical report now at hand of Dr Di Michiel dated 19 March 2001, copy of which we now enclose.
The Corporation's reply of 3 August 2001 (Exhibit A1 fol.78) advised:
I note that your letter appears to request reconsideration of Australia Post's decision not to pay compensation to Mr Sculli in respect of hearing loss. … I note that you refer to the letter from Kevin Vaughan of this office dated 15/06/01. Kevin Vaughan advised you in his letter and accompanying documentation that the review that you seek was actually issued on 31/05/90. I note that details of further appeal rights were issued at that time.
It therefore follows that no further determination will be issued, as the last one that Australia Post was obliged to issue was conducted eleven years ago. Given this lengthy period, any application to the Administrative Appeals Tribunal, at this stage, would be opposed by Australia Post as it would be considered prejudicial to the Corporation. To remove any doubts that you may have, please note that letter does not constitute a determination.
The application to the Tribunal was lodged on 31 August 2001. It described the decision to be reviewed by reference to certain annexures, being the correspondence that passed between Mr Sculli's solicitors and the Corporation, referred to above. The reasons stated for the application were that "Australia Post failed to take into consideration the medical report and audiogram by Dr Peter Di Michiel dated 19 March 2001". At the hearing, Mr Dixon argued that the Corporation had failed to take into account new medical evidence of causation. He said that an extension of time was required so that all of Mr Sculli's work activities while employed by the Corporation could be taken into account, including some aspects of his employment not previously considered in determining his claim for compensation.
backgroundMr Sculli commenced his employment with the Corporation in 1971. On 24 May 1987 he made a claim (Exhibit A1 fol. 12) under the Compensation (Australian Government Employees) Act 1971 (the 1971 Act). Mr Sculli completed a compensation claim form and stated that his injury or disease was industrial deafness. The claim noted that he first became aware of symptoms of the injury in about October 1985, while sorting mail at the Baulkham Hills Post Office.
Dr Gillam, ear nose and throat surgeon, saw Mr Sculli in October 1986. Dr Gillam reported in March 1987 that Mr Sculli presented with a history of tinnitus and deafness which Mr Sculli said pre-existed but had been aggravated by a head injury resulting in concussion that was sustained in an accident on 5 September 1986 while he was riding a motor bike and delivering mail. In Dr Gillam's opinion, Mr Sculli had sustained a sensorineural hearing loss, the audiometric pattern for which was entirely consistent with industrial deafness. The report stated that there was no other factor in the history or his examination that could account for Mr Sculli's deafness apart from industrial noise exposure (Exhibit A1, fol.20).
Mr Sculli did not return to work with the Corporation after the motor bike accident in September 1986 and he retired in 1988.
The Corporation wrote to Mr Sculli in July 1987 (Exhibit A1, fol.22) and requested a more detailed statement explaining which aspect of his duties contributed to his deafness. He was informed that if he was claiming that he had been exposed to excessive noise at Baulkham Hills Post Office, he should produce evidence of that noise. Mr Sculli's solicitors responded by sending the Corporation a report by Dr Gillam dated 10 September 1987 (Exhibit A1, fol.25). It is not clear whether he had examined Mr Sculli again. The report to Mr Sculli's solicitors was very similar to the earlier report to the insurance section of Australia Post, apart from Dr Gillam's noting that Mr Sculli presented with a history of "severe" tinnitus and deafness that pre-existed but was aggravated by his head injury in the motor bike accident. In Dr Gillam's opinion, the tinnitus was likely to be associated with labyrinthine concussion due to the head injury. Dr Gillam's report of September 1987 noted that Mr Sculli had sustained a "permanent" sensorineural hearing loss entirely consistent with industrial deafness.
On 13 January 1988 the Corporation informed Mr Sculli (Exhibit A1, fol.29A). that, due to a lack of evidence regarding exposure to loud noise while employed by the Corporation, a determination had been made disallowing his claim. The determination referred to a report by a Dr Marshman in February 1987 who had been informed, presumably by Mr Sculli, that Mr Sculli's employment prior to joining the Corporation had involved exposure to noise. It also referred to his claim, as originally reported in the history taken by Dr Gillam, that pre-existing hearing loss and tinnitus had been aggravated by a head injury sustained in a motor cycle accident on 4 September 1986. However, as the Corporation held no evidence about his sustaining a head injury in the accident, the determination refused liability for an aggravation of his hearing loss due to the accident as well.
The solicitors who were then acting for Mr Sculli wrote to the Corporation on 15 November 1989 to renew his claim (Exhibit A1, fol.33). They enclosed Dr Gillam's report of September 1987. The solicitors wrote:
We refer to previous correspondence and have been instructed to renew a claim for industrial deafness on behalf of [Mr Sculli] during his employment with Australia Post.
In support of our client's claim we enclose report of Dr Gillam dated 10th September, 1987.
We are also instructed to bring to your attention the following matters which were not previously raised:
a. Our client was employed by Australia Post between 1971 and 1986 driving a bike during the last 13½ years.
b. He first experienced a hearing loss in October 1985 and had had no problems before this time.
c. He had been driving a bulldozer 36 years ago and this caused no problems with his hearing.
d. He worked as a window cleaner between 1966-1971, 14 years before he experienced any problems. That was not a noisy environment.
e. He worked as a truck driver for 5 years between 1966-71 and once again that did not cause hearing problems.
We look forward to a further determination from you.
In May 1990, the Corporation replied to the effect that a determination had been made denying liability in respect of industrial deafness and that Mr Sculli could request a reconsideration of the determination under s.62(2) of the Safety, Rehabilitation and Compensation Act 1988 (the 1988 Act).
When the solicitors requested a reconsideration on 24 May 1990, they wrote as follows (Exhibit A1 fol.37):
We are instructed to request that Australia Post reconsider its decisions denying liability for our client's industrial deafness.
The reasons are that our client's deafness was caused by his driving a motor bike for some 15 years with Australia Post.
In support of our application for reconsideration we enclose copy of our letter dated 15th November, 1989 and report of Dr Gillam dated 10th September, 1987.
…On 31 May 1990 the Corporation informed Mr Sculli's solicitors that the determination was affirmed (Exhibit A1, fol.39). The reconsideration officer took into account Dr Gillam's report of 1987, it is not stated whether it was the March or September report, and noted that, having regard to the history and examination, it was Dr Gillam's opinion that only exposure to industrial noise could explain Mr Sculli's deafness. The reconsideration officer noted that there was no evidence of excessive noise at Baulkham Hills Post Office. Further, the reconsideration officer maintained that, although Mr Sculli had informed Dr Gillam that his condition had been aggravated by his head injury sustained in the motor bike accident, the claim lodged concerning that accident made no mention of a head injury. The notice of the reconsideration decision advised the solicitors that if Mr Sculli was dissatisfied with the decision, he could request the Tribunal to review the decision. A form outlining how to go about applying to the Tribunal was said to have been included with the notice of decision.
In March 1994 Mr Sculli attended an audio screening assessment that was performed by a firm by name of Better Care Pty Limited. With the assistance of his daughter-in-law, he sent the Better Care report (Exhibit A1, fol.42), as well as a copy of Dr Gillam's report of September 1987, to the Corporation and asked for his claim regarding industrial deafness to be looked at again. The Corporation's response was to request Mr Sculli to provide a statement giving full details of the noises referred to and explaining how his employment by the Corporation contributed to his condition (Exhibit A1, fol.43). Mr Sculli replied by letter of 23 May 1994. He gave an account of exposure to noise from his use of a motor bike over a twelve-year period for delivering mail. Under the heading "Helmet and Motor Bike Noise" he wrote (Exhibit A1, fols. 44 and 45):
I was always exposed to a great deal of noise while delivering the mail for a period of 5 to 6 hours per day. Every 1 to 2 hours I had to stop and rest for a short time of at least 5 to ten minutes to rest my head and ears from that noise vibrating into my head which used to drive me crazy…
Elsewhere in the letter he recounted the following:
Then on 4 Sept 1986 I had a motor bike accident with my motor bike when on the run at Baulkham Hills Post Office, which threw me off and I somersaulted to the ground and could not get up for a short time this hit my head even though I had a helmet on. Since then I felt I got worse with coping with noise it was as if the whole problem from the motor bike noise got worse…
I personally feel the motor bike noise was partly to blame for my hearing loss 10 to 12 years on a motor bike day in and day out … 5 to 6 hours per day is partly the cause of it as I said before…
The Corporation wrote to Mr Sculli on 13 September 1994 (Exhibit A1, fol.47) in reference to his letters of 10 March and 23 May 1994, and explained that his claim for industrial deafness had been assessed at the time of making the determination in January 1988. The Corporation pointed out that its determination had been the subject of a reconsideration, but was disallowed in May 1990. The letter noted that his appeal rights were included in the initial notice informing him of that reconsideration and reminded him that no appeal had been lodged.
Mr Sculli had no further correspondence or other contact with the Corporation about his claim until April 2001 when a claim for rehabilitation and compensation in respect of an injury he described as "industrial deafness" was lodged (Exhibit A1, fol.49). The claim form asked him for the precise diagnosis of his injury or illness and Mr Sculli wrote "binaural hearing loss and permanent tinnitus." The claim stated that exposure to industrial noise and traffic noise had contributed to his binaural hearing loss of 35.8 per cent and permanent tinnitus. The claim form noted that the equipment or machinery involved in the injury was a motor bike, traffic noise and a helmet that was especially noisy. There was a report by Dr Di Michiel, Director of Audiology at Primary Health Care in Bankstown, in support of the claim. Dr Di Michiel had examined Mr Sculli on 16 March 2001 and reported to his solicitors on 19 March 2001 (Exhibit A1, fol.57) that Mr Sculli had been a postman who worked for the Corporation for fifteen years and delivered mail on a motor bike that he rode in traffic for 5-6 hours a day. In his opinion "This type of loud industrial noise would be sufficient to cause hearing loss". Mr Sculli followed up with an incident report dated 17 May 2001 (Exhibit A1, fols.66-71) wherein he noted that his injuries, industrial deafness and permanent tinnitus, happened as a result of exposure to noise from his motor bike and passing traffic, and that wearing a helmet increased the noise level. He wrote in the incident report that he noticed he had symptoms from 28 August 1979.
The Corporation responded by letter dated 15 June 2001 to Mr Sculli's solicitors, informing them that its decision to deny liability for compensation for his industrial deafness was based on the recent claim being in respect of the "same condition and circumstances" that had been the subject of an earlier determination (Exhibit A1, fol.72). The Corporation said that they would not be making a further determination in respect of his claim. Mr Sculli's solicitors wrote to the Corporation on 10 July 2001 requesting "a re-consideration of the above matter based on the medical report now at hand by Dr Di Michiel dated 19 March 2001" (Exhibit A1, fol.73). In a reply dated 3 August 2001, the Corporation clarified its position by stating that Mr Sculli's claim for hearing loss had been the subject of a determination and a reconsideration decision on 31 May 1990 and that "[I]t therefore follows that no further determination will be issued, as the last one that Australia Post was obliged to issue was conducted eleven years ago." For good measure the Corporation said that their letter did not constitute a determination (Exhibit A1, fol.78).
It is not in dispute between the parties that Mr Sculli's tinnitus, which arose in 1985, is not compensable under the 1988 Act.
evidenceMr Sculli, who came to Australia from his native Italy in 1963, gave evidence about his driving bulldozers in Italy before emigrating. He drove bulldozers for a couple of hours a day, two or three times a week. He did not wear earmuffs. The bulldozers had no canopies covering drivers. Before joining the Corporation in 1971 he worked in deliveries and used to drive a three tonne truck. Mr Sculli agreed in cross examination that both the bulldozers and the truck were much noisier machines than the motor bikes that he rode while employed by the Corporation.
It was in 1973 and 1974 that Mr Sculli said he was exposed to the noise of heavy traffic when he used to deliver the mail on foot along Victoria Road in Drummoyne, a busy main road through an inner suburb of Sydney. When he was transferred to Pennant Hills Post Office two years later, he rode a motor bike when delivering his mail. He said he used to ride along Pennant Hills Road, another major thoroughfare, and there would be a lot of traffic and associated noise. After four years he was transferred to Baulkham Hills Post Office where he also used a motor bike for his deliveries mainly along quieter, back streets. His letter dated 23 May 1994 to the Corporation detailed the periods when he was assigned to the various post offices as follows: Drummoyne two and a half years; Pennant Hills four years; and Baulkham Hills eight years.
Mr Sculli said he did nothing about pursuing the matter until 1994 when he wrote to the Corporation requesting reconsideration of his claim. When the Corporation again refused his claim in September 1994, he said that "I just left it at that". He said that his hearing did not improve during the period from 1994 to 2001. It was not until he saw Dr Di Michiel in March 2001, who told him that his exposure to noise from traffic and the motor bike would be sufficient to cause hearing loss, that his new solicitors commenced action by lodging an application for review by the Tribunal.
Under cross-examination Mr Sculli agreed that when he made his claim for compensation in May 1987 he made no reference to noise from his motor bike. He said that he sorted the mail by hand and had not been exposed to noise from sorting machines or other similar equipment. He said that he had complained about noise from a loud radio that was positioned about four to five metres away from him in the sorting room at Baulkham Hills Post Office. Despite protests to his supervisor and the post-master, he was unsuccessful in having the volume turned down or the radio moved further away from him. He agreed that the history he gave to both Dr Gillam and Dr Di Michiel did not refer to any problem he experienced from exposure to noise from the radio. When asked about the motor bike accident in September 1986, Mr Sculli said he was not admitted to hospital but was seen by Dr Prineas, his general practitioner at the time. A little time later he consulted another general practitioner, Dr Lombardo. Mr Sculli was not able to say whether Dr Prineas' or Dr Lombardo's clinical notes in relation to his accident would still be available.
Mr Kelly asked Mr Sculli a number of questions about the information and advice that he received from his solicitors in relation to his 1987 claim. When he was informed of the Corporation's decision in May 1990 denying liability for compensation, Mr Sculli said he was advised by his solicitors that it would be a waste of time to take the matter further. He was unable to remember who examined him when Better Care carried out their audiometry assessment. He could not recall if anyone from Better Care put forward a reason for his hearing loss. Further, he could not remember if he took any action to pursue his claim during the six-year period from September 1994, when the Corporation informed him that his claim had been reconsidered in 1990, and 2001 when his current solicitors lodged a new claim. Mr Sculli agreed that he had difficulty remembering what happened around 1994 and in earlier years. Mr Sculli said that he has been aware of problems with his hearing, including a ringing noise in his ears, since October 1985. He also said that the problems with his hearing did not go away or improve between 1994 and 2001.
consideration and findings
On the basis of the material in the documents prepared by the Corporation pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) and tendered as Exhibit A1, and the evidence of Mr Sculli, the Tribunal has made the findings of fact set out in this section of its reasons.
Mr Dixon contended that the claim that Mr Sculli lodged in 2001 related to the same condition, hearing loss, that was the subject of his claim in 1987. Mr Dixon emphasised, however, that it was only in 2001 that Mr Sculli had medical evidence that connected his condition to a different cause: exposure to traffic noise and noise from the motor bike arising out of employment with the Corporation. Mr Dixon contended that neither the determination made on 13 January 1988 nor the reconsideration of 31 May 1990 examined whether Mr Sculli's hearing loss had been caused by exposure to traffic noise and motor bike noise. He submitted that an extension of time was needed to enable the Tribunal to go through all the matters relating to Mr Sculli's employment with the Corporation, to examine all the circumstances surrounding the loss of hearing.
Mr Dixon submitted that, although Mr Sculli's letter of 23 May 1994 to the Corporation suggested that Mr Sculli may have perceived a link between his employment duties and his hearing loss, as a layman he could not be conclusive.
Mr Kelly submitted that the Tribunal's jurisdiction under the 1988 Act is limited to a review of a reviewable decision. In this case the reviewable decision was the reconsideration decision made on 31 May 1990.
The determination made by the Corporation on 13 January 1988 to disallow Mr Sculli's claim was a determination made under s.61 of the 1971 Act. The effect of the transitional provisions of the 1988 Act, in particular s.127, was that the determination was deemed to be a determination made under the 1988 Act. Relevantly, s.127 provides:
(2) Any determination made or action taken by the Commissioner for Employees' Compensation under the 1930 Act or the 1971 Act and having effect immediately before the commencing day, being a determination or action in respect of the liability of the Commonwealth to pay compensation or make any other payment to a person under the 1930 Act or the 1971 Act, as the case may be, shall be taken to be a determination made by the relevant authority under this Act in respect of the corresponding liability of that relevant authority to pay compensation or make a similar payment under this Act to that person.
Accordingly, the determination could be the subject of a reconsideration under s.62 of the 1988 Act. The reconsideration by the Corporation dated 31 May 1990 was a reconsideration under s.62 of the 1988 Act and thus a 'reviewable decision' as defined by s.60 of that Act. Mr Sculli therefore could apply to the Tribunal for review of the reviewable decision: s.64 of the 1988 Act. The Tribunal is satisfied that on or about 31 May 1990, written notice of the terms of and reasons for the reviewable decision (Exhibit A1 fol.39) was given to Mr Sculli's solicitors, and the notice contained a statement to the effect that, if dissatisfied with the decision, Mr Sculli could apply to the Tribunal for review of the decision. Mr Sculli's current application to the Tribunal was treated by both parties at the hearing as an application to extend time for him to apply for a review of the decision of 31 May 1990, the prescribed time for his making such application having expired sixty days after the reconsideration was furnished to him: s.65(4) of the 1988 Act.
Pursuant to s.29(7) of the AAT Act, the Tribunal at its discretion may extend time for the making of an application for a review of a decision; ss.29(7) and (8) provide:
(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).
(8) The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.The judgment of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 summarises the guiding principles for the Tribunal when considering whether to exercise the discretion in s.29(7) of the AAT Act. The Tribunal is mindful of the Full Court's caution in Zizza v Commissioner of Taxation 99 ATC 4,711 that the principles are a guide only and the summary ought not be regarded as exhaustive or complete. Wilcox J identified the following as relevant factors to be considered at 348:
1. Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. … 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 … 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.
2. Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision maker aware that he contests the finality of the decision (who has not "rested on his rights…) and a case where the decision maker was allowed to believe that the matter was finally concluded … The reasons for this distinction are not only the "need for finality in disputes" but also the "fading from memory" problem..
3. Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension.
4. However, the mere absence of prejudice is not enough to justify the grant of an extension … In this context, public considerations often intrude … A delay which may result, if the application is successful, in the unsettling of other people or of established practices is likely to prove fatal to the application.
5. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted …
6. Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the Court's discretion…
Is there an acceptable explanation for the delay? Since Wilcox J's judgment in Hunter Valley Developments, the Full Court has held that, although an acceptable explanation for the delay is not a precondition for success, it is expected that normally such an explanation will be given: Comcare v A'Hearn (1993) 119 ALR 85. Mr Dixon submitted that, when Mr Sculli lodged his first claim in 1987, he did not have all the medical evidence relevant to his condition. Dr Gillam's report did not take into account Mr Sculli's exposure to traffic noise and the noise he experienced from the motor bike as possible causes of his hearing loss. In his submission, it was only after he consulted Dr Di Michiel in 2001 did he realise he had medical support for his application.
The Tribunal notes that the Corporation made a determination on 13 January 1988 denying liability for compensation in relation to industrial deafness. It would appear that it was not until November 1989 that Mr Sculli's solicitors took their next step in the matter, and this eventually led to the reconsideration decision that was made on 31 May 1990. The Tribunal finds that on or about that date, Mr Sculli's solicitors advised him that it would not be worth his while to take the matter further. Almost four years then elapsed before Mr Sculli wrote to the Corporation on 10 March 1994 enclosing the Better Care audiometric assessment report and asking for his claim to be looked at again. Mr Sculli offered no explanation for the four-year delay. The Tribunal finds that the Corporation wrote to Mr Sculli in September 1994 to confirm that his claim had been the subject of reconsideration in May 1990 and informed him that no appeal had been lodged on his behalf.
For almost seven years thereafter Mr Sculli took no action in relation to obtaining compensation for his injury until he lodged his claim in April 2001. This is not a case where an applicant continues to keep the decision-maker aware that the matter is still being disputed. His explanation for that delay was that he was unaware that his hearing loss was caused by the noise of the motor bike and the vibration he felt while wearing the helmet until so advised by Dr Di Michiel. The Tribunal is not satisfied that this is a reasonable explanation for a delay of seven years. The letters from his solicitors dated 15 November 1989 and 24 May 1990 to the Corporation referred to his having driven a motor bike for fifteen years while working for that employer, implying a connection between use of the motor bike and his loss of hearing. Indeed the second of those letters, which also was sent before the reconsideration decision was made, plainly stated that "The reasons are that our client's deafness was caused by his driving a motor bike for some 15 years with Australia Post" (Exhibit A1, fol.37). The Tribunal finds that Mr Sculli's then solicitors were of the view, prior to the reconsideration decision, that his exposure to noise from the motor bike was causally related to his hearing difficulties. Later, Mr Sculli himself responded to a request from the Corporation for details of his exposure to noise while at the Corporation and for his reasons for attributing his hearing loss to employment at the Corporation. His letter of 23 May 1994 referred in some detail to his exposure to noise from riding the motor bike, as well as complaining about the noise that vibrated into his head. The Tribunal finds that, having regard to his letter of 23 May 1994, especially the material that appeared under the heading 'Helmet and Motor Bike Noise', Mr Sculli was aware of a connection between the noise vibrating inside his helmet and his hearing problems. Simply to let the matter rest until medical evidence was received that gave support to the connection that Mr Sculli himself had made, is not an acceptable explanation for his delay. Moreover, the Tribunal finds that Mr Sculli rested on his rights, raising the issue of compensation for his hearing loss with the Corporation only twice in the eleven year period from the expiry of the 'limitation period' applying to his right to seek review of the reconsideration decision.
Will there be any prejudice to the Corporation by granting an extension of time? Mr Dixon submitted that there was no evidence of actual prejudice. Mr Kelly submitted, firstly, that there was presumptive prejudice arising from the eleven-year delay. He referred to the High Court's decision in Brisbane South Regional Health Authority v Taylor (1996)186 CLR 541. McHugh J said (Dawson J agreeing) that (at 555) "Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. … Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period."
Mr Kelly pointed also to the prejudice that the Corporation will face in investigating each of the causes that Mr Sculli has, at one time or another, advanced as being a cause of his hearing loss. In relation to noise exposure while sorting the mail at Baulkham Hills Post Office, Mr Sculli said that he had complained to management about a loud radio. This contention was raised for the first time during the hearing. Mr Sculli was unable to remember the name of one of the men to whom he complained about the noise and he was unsure of the other's name. As to the head injury Mr Sculli received in the motor bike accident, which he had raised with Dr Gillam as a possible cause of his hearing loss, there was no evidence available even at the time that the determination was made in January 1988 (Exhibit A1, fol.29A). Finally, it is apparent that Dr Di Michiel's opinion was based on a history of noise exposure from riding the motor bike and the effect of the vibrations inside the helmet on his hearing. Mr Sculli was unable to provide information about the type of helmet he wore. The Tribunal accepts the submission that the Corporation would find it difficult to establish the level of noise to which Mr Sculli was exposed while sorting mail at Baulkham Hills Post Office at the time when he said he first noticed his loss of hearing. In addition, there would be obvious difficulties in estimating the level of traffic noise to which he was exposed. Whether that noise level exceeded the noise experienced while driving bulldozers and trucks is another matter that the Corporation would now find almost impossible to test. Gathering evidence about his exposure to noise from those with whom he worked, especially while at Baulkham Hills Post Office, might also pose problems for the Corporation and, it should be noted, for Mr Sculli himself. The Tribunal accepts these submissions and finds that granting an extension of time would significantly prejudice the Corporation.
Turning then to consider the merits of Mr Sculli's case, is there an arguable case, taking his case at its highest: Commissioner of Taxation v Brown 99 ATC 4,852? Dr Di Michiel's opinion is based on a history of occupational noise exposure for approximately twenty-one years, fifteen years while employed by the Corporation. Even allowing for any possible misunderstanding in the history taken about the nature and duration of Mr Sculli's noise exposure while at the Corporation, the opinion supports Mr Sculli's claim and in the Tribunal's opinion founds an arguable case. However, this is but one factor to be weighed up by the Tribunal in the exercise of its discretion.
When taking public considerations into account such as the orderly management and resolution of claims, the Tribunal is satisfied that it ought not grant Mr Sculli an extension of time. The Corporation could well have regarded the matter as finally closed in 1994. It was then already four years after the reconsideration decision. Mr Sculli forwarded fresh information about his hearing loss, but failed to pursue any challenge to the response he received at that time. There is no justification here for unsettling administrative practices that have treated this matter, with some reason, as having concluded.
Mr Sculli's application for an extension of time must be considered on its merits. The Tribunal has had regard to the material put before it at the hearing including Mr Sculli's evidence. In deciding whether it is fair and equitable in the circumstances to exercise the discretion in s.29(7) of the AAT Act, the Tribunal must balance the competing interests of both parties. In doing so, the Tribunal is not satisfied that, more that twelve years on, it would be fair and equitable to grant Mr Sculli's request for an extension of time to allow review of the Corporation's decision of May 1990.
The application for an extension of time is refused.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr P.J. Lindsay, Senior Member
Signed: L Houston .....................................................................................
AssociateDate/s of Hearing 26 April 2002
Date of Decision 26 June 2002
Counsel for the Applicant Mr S Dixon
Counsel for the Respondent Mr B Kelly
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