Smith and Thales Australia Limited

[2017] AATA 3042

Smith and Thales Australia Limited [2017] AATA 3042 (1 December 2017)

Division:GENERAL DIVISION

File Number(s):      2017/4373

Re:Derek Smith

APPLICANT

AndThales Australia Limited

RESPONDENT

WRITTEN REASONS FOR ORAL DECISION

Tribunal:Senior Member D. J. Morris

Date:1 December 2017

Date of written reasons:        6 December 2017

Place:Melbourne

The Tribunal refuses the application for an extension of time.

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

D. J. Morris

PRACTICE AND PROCEDURE – Application for extension of time – Long delay since reviewable decision made – matters to take into account – application refused – written reasons requested for oral decision

Legislation

Administrative Appeals Tribunal 1975 (Cth), ss 29(2), 29(7), 43(2A)
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 14, 62, 53(1)(a), 64(4)

Cases
Hunter Valley Developments Pty Ltd & Ors v The Hon Barry Cohen, Minister of Home Affairs and Environment [1984] FCA 186
Negri v Secretary, Department of Social Services [2016] 70 AAR 103

Swanton v Military Rehabilitation and Compensation Commission [2017] FCA 1142

REASONS FOR DECISION

Senior Member D. J. Morris

6 December 2017

PROCEDURAL BACKGROUND

1. On 18 July 2017 Mr Derek Smith, the Applicant in this matter, applied for a review of a decision made on 2 June 2006 by Mr Stephen Matthews, a Reconsideration Officer employed by the Australian Postal Corporation. The Reconsideration Officer, acting under section 62 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) reconsidered a determination issued by a compensation delegate on 13 February 2006 denying liability to pay compensation under section 14 of the SRC Act to Mr Smith in respect of depression and anxiety, sustained in his contention during his employment by Australian Defence Industries Limited (ADI Limited).

2. Thales Australia Limited is the Respondent in this matter because it is the legal successor to ADI Limited.  The Reconsideration Officer undertook his task by an arrangement approved by Comcare whereby any requests for reconsideration of compensation determinations issued by delegates employed by ADI Limited are referred to the Australian Postal Corporation, where a review is undertaken by the Corporation’s Reconsideration Officer.

3. Because Mr Smith’s application for review of the 2 June 2006 decision was beyond the statutory time limit provided for such a review, he also lodged an application for an extension of time for making an application for review on 18 July 2017.

4. Interlocutory hearings were held on 29 August and 1 December 2017 to consider the application for an extension of time.  At the conclusion of the hearing on 1 December 2017, the Tribunal made its decision ex tempore and provided oral reasons. Under section 43(2A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), the Respondent requested a statement in writing of the reasons of the Tribunal for its decision. The Tribunal therefore provides reasons in writing for the decision which, in accordance with section 43(2B) of the AAT Act, include findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

5. In Negri v Secretary, Department of Social Services (2016) 70 AAR 103 (Negri), Bromberg J considered a matter before the Tribunal where an oral decision had been made and a statement of written reasons had been subsequently supplied. In considering the extent to which the Tribunal could edit or elaborate its oral reasons when producing written reasons, His Honour stated at [27]:

   … as long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).

6. In preparing the written reasons which follow, the Tribunal is satisfied that they reflect the hearing held on 1 December 2017, in line with the approach suggested in Negri.  New reasoning for the decision has not been introduced, but this written statement is a fuller explanation of the reasons given orally.

   Hearing on 28 August 2017

7. At the interlocutory hearing on 28 August 2017 the Applicant acknowledged that his application for review was some eleven years past the statutory period to lodge an application for review of the determination regarding his claim for compensation to ADI Limited for injuries he contended were sustained when he was employed by them at their facility at Benalla.  He said part of the reason for the delay was that he “took to drink for three years” after the original injury and decision.  He submitted it was procedurally unfair for him to be denied an opportunity to pursue a review and that the original decision was in his view unfair.

8. Mr Paul Mentor, for Thales Australia Limited, made submissions referring to the guidance provided by Wilcox J in Hunter Valley Developments Pty Ltd & Ors v The Hon Barry Cohen, Minister for Home Affairs and Environment [1984] FCA 186 (Hunter Valley case) on matters that courts and tribunals should take into account when considering applications for extensions of time to make applications for review where a statute sets out prescribed time periods for such an application for review to be made.  Mr Smith said he was unfamiliar with the Hunter Valley case and Mr Mentor offered to send the Applicant a copy of the judgment and an outline of the Respondent’s position in relation to Mr Smith’s application.  The Respondent provided Mr Smith with a copy of the judgment in the Hunter Valley case by letter dated 29 August 2017 and provided written submissions to the Tribunal and the Applicant dated 30 August 2017.

9. Mr Smith provided written submissions to the Tribunal and the Respondent dated 18 September 2017.  These submissions did not address the various guidance principles set out in the Hunter Valley case but instead provided a timeline of what the Applicant had done since 2006.  Relevantly to this request for an extension of time,  Mr Smith wrote:

   13.2.2006

   I received the determination by Christine Lemon.

   2.6.2006

   A reconsideration was done by Stephen Mathews [sic], I don’t believe I saw a copy of this until Denise Pegg sent me a copy in 2016.

   Ms Lemon was the Compensation/Rehabilitation Manager at ADI Limited.

   Hearing on 1 December 2017

10. Mr Smith said he had a motorcycle accident in 2006 that took him some years to recover from.  He said he had also had historical difficulties with alcohol consumption and that he had been chipping away at working on his request for review of the 2006 decision.  Mr Smith agreed that at the time when he sought the review in 2006 he had engaged a Wangaratta firm of solicitors, Constable Connor & Co, to represent him.  He submitted that although the reconsideration was undertaken in June 2006 and sent to Constable Connor by letter dated 2 June 2006, he did not believe he saw it at the time.  Mr Smith said he received a copy almost ten years later, from Ms Denise Pegg, National Claims Manager, Thales Australia Limited, on 10 November 2015.

11. Mr Smith noted that he had submitted to the Tribunal a statement he had made in 2011 to the Defence Abuse Task Force (the Task Force) in relation to a separate application he made to the Task Force for a reparation payment under the Defence Abuse Reparation Scheme. He also submitteda preliminary assessment made on 10 November 2014 by Ms Robyn Kruk, AM, Reparation Payments Assessor, that he should be paid $30,000 in a Reparation Payment for bullying and harassment including discrimination during [the Applicant’s] time at Australian Defence Industries, Benalla.  The final assessment was not before the Tribunal but the Tribunal accepts Mr Smith’s evidence that he received a payment from the Task Force.  The Tribunal pointed out to Mr Smith that the standard of proof for the awarding of payments by the Task Force was a test of plausibility which is a different standard of proof from those required under sections of the SRC Act, and Mr Smith conceded this.

    CONSIDERATION

12. Mr Smith has applied for an extension of time to lodge an application for a review of a decision dated 2 June 2006. Section 29(7) of the AAT Act gives the Tribunal the power, upon an application in writing by a person, to extend the time for that person to make an application to the Tribunal for the review of a decision if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.  The Tribunal can grant an extension even if the time for making the application has expired.

13. How the Tribunal should assess whether it is reasonable in all the circumstances to grant an extension is not otherwise set out in the statute.  Significant guidance is provided in decisions of the Courts, in particular the Federal Court decision in the Hunter Valley case.

14. As Wilcox J said in that case, the prescribed period of 28 days 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 favour of an Applicant that the Applicant show an acceptable explanation of the delay and that it is fair and equitable in the circumstances to extend time.

15. The factors, in broad, the Tribunal must take into account are; the length of the delay, and whether an Applicant has rested on his or her rights; an explanation of the delay and awareness of appeal rights; prejudice to the Respondent and other parties; the merits of the substantive case; and fairness to others in a similar position.

    The length of the delay – has Mr Smith rested on his rights?

16. In this matter, the decision was on 2 June 2006. Section 29(2) of the AAT Act is modified by section 64(4) of the SRC Act so that reference to the 28^th day is to be read as the 60^th day.  This is a beneficial modification in relation to Mr Smith because it allowed him a longer period in which to lodge an application for review.

17. The recent Federal Court judgement by Tracey J in Swanton v Military Rehabilitation and CompensationCommission [2017] FCA 1142 (Swanton) sets out the approach to be taken when considering service by post.  His Honour held that where an item is sent from a Commonwealth agency, there is a rebuttable presumption that it is posted five business days after the date of the letter.  For this consideration, the Tribunal finds that the Australian Postal Corporation should be considered a government agency in terms of when the letter is presumed to have been despatched by the Reconsideration Officer.

18. That date in Mr Smith’s case is 2 June 2006.  The letter was posted to Constable Connor & Co, Mr Smith’s legal representatives.  Applying Swanton, the letter is deemed to have been posted on 9 June 2006.  It is presumed to have been delivered four business days later, in this case on 14 June 2006.

19. The Tribunal finds that the 60 day period of time set down in the SRC Act therefore should start from 15 June 2006. That period concludes at the end of 13 August 2006. This is the period of time Mr Smith had to seek a review by the Tribunal under section 29(2) of the AAT Act, as modified.

20. The Tribunal notes that at the previous hearing, the Respondent offered to send Mr Smith the factors Wilcox J said should reasonably be taken into account in his Hunter Valley judgment, and I note that was posted to Mr Smith.  Mr Smith responded by letter dated 18 September 2017.  In his letter, he acknowledges that the reviewable decision was made by Mr Matthews on 2 June 2006 but says he does not believe he saw a copy of this until Ms Pegg sent him a copy in 2016.  I note Mr Smith’s advice to the Tribunal about his motorcycle accident in 2006 and the payment he received from the Defence Abuse Task Force.  Of themselves, these are not relevant to my consideration of this extension of time.  I find that Mr Smith rested on his rights.

    Explanation for the delay and awareness of appeal rights

21. There is nothing before me to rebut the presumption that the reviewable decision was sent to Mr Smith’s lawyers soon after it was made in June 2006.  The fact that he had engaged legal counsel who would have known their responsibilities to pass on the correspondence and seek any further instructions from their client strengthens my view that this presumption is not rebutted.  I note that the letter sent to Mr Smith’s solicitors, Constable Connor & Co, by the Reconsideration Officer on 2 June 2006 states at fourth paragraph the following:

    If your client is dissatisfied with the determination, he has the right to apply to the Administrative Appeals Tribunal for a review of the decision.

22. It is regrettable that that letter did not explicitly state that the statutory period to apply for such a review is 60 days, and it should have.  I note that Mr Smith “does not believe” that he was notified of the decision in 2006 but, on his own submissions, he is not quite sure of that.  However, as I have said, this letter was sent to a firm of solicitors acting for the Applicant who would have the professional knowledge of the statutory time limit and would be expected to so advise their client.  I find that Mr Smith was aware of his appeal rights at the beginning of, or soon after the commencement of, the 60 day period.

    Prejudice to the Respondent and other parties

23. The Respondent submits there would be significant prejudice to Thales Australia Limited by the re-opening of this matter after such a lengthy period and draws the Tribunal’s attention to the provisions of section 53(1)(a) of the SRC Act which requires an employee to notify their employer as soon as practicable after the employee becomes aware of the injury.

24. Mr Smith ceased employment with ADI at Benalla in April 1997 and made his claim for an anxiety and depressive condition in November 2005.  I note that there are authorities stressing the distinction between when the injury occurred and when an employee became aware of it, especially in the case of a mental health condition, but the temporal period even in that period is significant. 

    The merits of the substantive case. 

25. In this matter, as I emphasised at the hearing, I do not delve into the substantive merits of Mr Smith’s case, but I do consider, broadly, whether it is a strong case.  I note that the Applicant considers that he should have been sent by the Respondent to have an independent medical assessment and that he felt that the assessment done at the time was unfair.  He felt the Reconsideration Officer focussed too much on the view of a medical report, prepared at the time by Dr De Crespigny, that Mr Smith smoked cannabis, which he felt was wrong. These may have been reasonable grievances for Mr Smith to have made back in 1997, or even when the determination was made in 2005. 

26. The condition of anxiety and depression is alleged by Mr Smith to have occurred throughout the time he worked for ADI Limited, from September 1996 to April 1997, but he did not lodge his claim under the SRC Act until November 2005. In my view, the temporal gap since the original contended injury, the original decision, and the reconsideration of that decision, has made success in Mr Smith’s claim objectively less likely than if the claim had been lodged promptly. Importantly, I have significant doubts that an effective merits review could be undertaken on the material before the Tribunal, or obtainable by the Tribunal, given the passage of time. I view it as significant that there has not been the opportunity to obtain statements from persons who worked with the Applicant in 1996 and 1997 and who Mr Smith identifies as responsible for his condition. In 2006 the Respondent said that many of those people identified no longer worked for ADI Limited. Eleven years on from the time of the reviewable decision and 20 years on from when Mr Smith finished working for ADI Limited, that lack of contemporary evidence is compounded substantially. This long time period has a major impact on the ability of both parties to make any effective case.

    Fairness to others in a similar position

27. Finally, I must consider fairness to others in a similar position.  Mr Smith did not act within 60 days and, even allowing for mail delays, he did not act promptly.  In fact, he waited for almost eleven years.  The Respondent was entitled to conclude that the matter was finalised because there was no other indication before the Tribunal of any other correspondence or other agitation by the Applicant in the intervening period that he was dissatisfied with the reconsideration and wanted to take the matter further between 2006 and 2016.  As His Honour said in the Hunter Valley case, there is a prima facie rule that proceedings should not be commenced outside the statutory timeframe.

    DECISION

28. The Hunter Valley case sets out general guidance, but each application for an extension of time turns on its own facts and on the level of satisfaction of the Tribunal under section 29(7) of the AAT Act. I find that Mr Smith has not provided an adequate explanation of the (long) delay in lodging his application for review, nor has he made out a case in this matter that it would be fair and equitable, in all the circumstances before the Tribunal, to extend time for him so to do.

29. I am satisfied that the case for extending time to lodge an application for review is not made out. I am not satisfied on the evidence before me that it is reasonable in all the circumstances to extend this time under section 29(2) of the AAT Act, as modified. Mr Smith’s application for an extension of time to lodge an application for review is therefore unsuccessful.

30.     I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the written reasons for the decision of Senior Member D. J. Morris.

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

Associate

Dated 6 December 2017

Date of hearing	1 December 2017
Applicant	In person
Advocate for Respondent	Paul Mentor, Clarke Legal Lawyers & Consultants