Stephen Zdziarski and Telstra Corporation Limited

[2012] AATA 332

[2012] AATA 332 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/1067
Re	Stephen Zdziarski
APPLICANT
And	Telstra Corporation Limited
RESPONDENT

DECISION

Tribunal	Senior Member A K Britton
Date	4 June 2012
Place	Sydney

Pursuant to s 29 of the Administrative Appeals Tribunal Act 1975 (Cth), the making by Mr Stephen Zdziarski of an application to the Tribunal for a review of the decision made by Telstra on 21 April 2011, is extended to 21 March 2012.

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

Senior Member A K Britton

CATCHWORDS

PRACTICE AND PROCEDURE - application for extension of time to lodge application for review - applicant provided inadequate explanation for delay - reasonable in all circumstances to extend time within which to lodge application for review - application granted

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) - s 65

Administrative Appeals Tribunal Act 1975 (Cth) – sub-ss 29(7) and 29(8)

CASES

Hunter Valley Developments v Cohen [1984] FCA 176; (1984) 3 FCR 344

Gabor v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 706
Comcare v A’Hearn (1993) 45 FCR 441

REASONS FOR DECISION

Senior Member A K Britton

4 June 2012

1. Mr Zdziarski seeks review by the Administrative Appeals Tribunal (AAT) of a decision made by Telstra to refuse his claim for a psychiatric injury. A person dissatisfied with a decision made under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), seeking review of that decision by the AAT, must make an application for review within 60 days of receiving written notice of that decision (s 65 of the SRC Act). Mr Zdziarski’s application for review is about 11 months out-of-time and cannot proceed unless the power to extend time conferred by the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), is exercised. The Tribunal may extend the time for making an application if satisfied that “it is reasonable in all the circumstances to do so” (ss 29(7), 29(8) of the AAT Act). Telstra opposes the granting of the application.

2. Neither the SRC Act nor the AAT Act prescribe factors to be taken into account in deciding whether the discretionary power to extend time should be exercised. In undertaking that task, I will be guided by the principles enunciated by Wilcox J in Hunter Valley Developments v Cohen (1984) 3 FCR 344. Those principles were usefully summarised by Bromberg J in Gabor v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 706 at [7]:

   a) whilst special circumstances need not be shown, applications for an extension of time are not to be granted unless the Court is positively satisfied that it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an “acceptable explanation for the delay”, and it must be “fair and equitable in the circumstances” to extend time;

   (b) action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished; a distinction is to be drawn between a person who has made it known that the finality of the decision is contested and a person who has allowed other parties to believe that the matter was finally concluded. The reason for this distinction includes the need for finality of disputes.

   (c) any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;

   (d) however, the mere absence of prejudice is not enough to justify the grant of an extension;

   (e) the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted; and

   (f) 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.

3. Wilcox J was at pains to emphasise (at 348) that this list is not exhaustive.

   EXPLANATION FOR DELAY

4. Mr Zdziarski contends that he has proffered a reasonable explanation for the delay in making his substantive application. Telstra disagrees. Whether an acceptable explanation has been provided requires consideration of the background facts.

5. On 22 November 2010, Mr Zdziarski wrote to Telstra seeking compensation for 18 “injuries” including “major reactive depression and stress”. On 15 December 2010 Telstra’s insurer, Allianz, wrote to Mr Zdziarski advising that liability for those injuries had been denied. On 21 February 2011 Allianz wrote to Mr Zdziarski, through his solicitors, and advised that that decision had been reconsidered and affirmed. As required by the SRC Act, Telstra notified Mr Zdziarski of his right of review to the AAT, and that an application for review had to be lodged within 60 days of receipt of the 21 February 2011 decision.

6. On 10 March 2011, Mr Zdziarski’s solicitor wrote to Allianz seeking review of the decision to deny liability in respect of Mr Zdziarski’s claimed depression and asserted that the more appropriate diagnosis was “adjustment disorder with anxious mood”. A report prepared by psychiatrist Dr Geoffrey Robinson was provided in support of that assertion.

7. In May and then again in June 2011, Mr Zdziarski’s solicitor wrote to Allianz seeking a response to “our client’s claims for psychiatric injury”. According to the solicitor, in June 2011 he advised an Allianz claims officer of his unanswered requests for a response and pressed for a response.

8. A live issue in these proceedings was whether Telstra indicated to Mr Zdziarski’s solicitor that it would not oppose the granting of an extension of time to lodge an application for review. It is not necessary to resolve this dispute. It suffices to say that by September 2011, at the latest, Mr Zdziarski’s solicitor was plainly on notice that an application to the AAT had to be made if he wished to pursue his claim for a psychiatric injury.

9. According to Mr Zdziarski’s solicitor, on 15 November 2011, he updated his client about the status of the “psychiatric claims matter” and was instructed to obtain Counsel’s opinion before proceeding to lodge an application for review. The barrister apparently recommended by the solicitor was then on holidays. On the barrister’s return, shortly before Christmas, the solicitor was advised to lodge an application for review.  The solicitor explained that further delay was then caused because he was on leave until late January 2012, and on his account, largely away from his Newcastle-based office for about a month because of court commitments.

10. The application for review was eventually filed on 16 March 2012.

    CONCLUSION

11. The parties agree that of the factors nominated by Wilcox J, the explanation for the delay is of central importance in this case. Mr Zdziarski contends that a reasonable explanation has been proffered. Telstra disagrees.

12. Telstra properly concedes that it cannot point to any material prejudice it would suffer if the application to extend time is granted. Nor does it assert that the substantive application is hopeless.

13. Mr Zdziarski submits that the delay taken as a whole must be viewed in the context of a series of rolling errors.  The first was that, once he had made a request for the insurer’s decision to be reconsidered in light of Dr Robinson’s report, his solicitor misunderstood the status of the reconsideration decision.  The second was his belief that the matter could be resolved on an informal basis. The third was that further delay caused once the solicitor had received Counsel’s advice to proceed with an application for review.  He therefore submits that the delay has been adequately explained.

14. I agree with Counsel for Telstra that the explanation proffered is inadequate. By September 2011 at the latest, the solicitor should have been under no misapprehension that time was not on his client’s side. Nonetheless, a further six months passed before an application for review was lodged. That delay could have been avoided, or at least reduced, by any number of simple steps. While I accept that the solicitor had many calls on his time at the start of the year, as Counsel for Telstra points out, the task of making an application for review of a decision made under the SRC Act could hardly be described as onerous. An applicant is not required to “plead” their case or particularise their claim. The completion of an application for review simply requires the applicant to identify the decision the subject of the application and to state the reason for making that application. In this case the latter requirement was met by the simple statement — “The applicant disagrees with the respondent decision”.

15. Missing from the material before me is what part, if any, Mr Zdziarski played in the delay. While Mr Zdziarski made the initiating claim for compensation, by the time the reviewable decision was made he had instructed solicitors to act on his behalf. Apart from instructing his solicitors in November 2011 not to proceed until advice was received from Counsel who was then overseas, there is no evidence to suggest that any action on Mr Zdziarski’s part contributed to the delay.  Equally no evidence has been adduced that Mr Zdziarski did not contribute to the delay. 

16. Although an acceptable explanation for the delay is not an essential pre-condition for a favourable exercise of the discretion to extend time, it is to be expected that such an explanation will normally be given (Comcare v A’Hearn (1993) 45 FCR 441 at 444; cf Hunter Valley Developments).  In the circumstances of this case, where the material provided shows that the delay was largely attributable to the default by Mr Zdziarski’s solicitor, it would be unfair in my opinion to treat the absence of an adequate explanation as fatal to Mr Zdziarski’s application for an extension of time (see A’Hearn at 443, Hunter Valley Developments at 351).

17. The considerations in this matter are finely balanced.  Weighing against the extension of time is the lack of an adequate explanation for the delay, the length of the delay and Telstra’s legitimate expectation that, in the absence of an application for review, the dispute would be finalised once the statutory deadline for making an application had passed. Weighing against these factors is the lack of any particular prejudice that Telstra, or any third party, is likely to suffer if the application proceeds, and the fact that Mr Zdziarski has an arguable case.

18. Mr Zdziarski’s case for an extension of time is not compelling. As a general rule, however, it is in the interests of justice that genuine issues of this nature be resolved on their merits rather than by strict application of technical rules that effectively non-suits a party with an arguable claim for compensation. This must be so especially where the potential long-term disadvantage for the party in default would greatly outweigh the unfair prejudice, or indeed, any prejudice suffered by the respondent to the application. While, of course, this principle is not infinitely elastic, and ought not be taken as an encouragement of or acquiescence in tardiness by lawyers representing claimants under the SRC Act, I have decided that it is fair and equitable in all the circumstances to extend the time for the making of the application. Mr Zdziarski and his representatives ought note, however, that this indulgence may not be repeated if there is any further incidence of serious default in complying with case-management principles or rules.

I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of

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

Associate to Senior Member A K Britton

Dated  4 June 2012

Date(s) of hearing	18 May 2012
Counsel for the Applicant	Mr Edwards
Solicitors for the Applicant	Mr S Gray, Harris Wheeler Lawyers
Counsel for the Respondent	Mr Kelly
Solicitors for the Respondent	Ms A Bortone, Sparke Helmore