Tilley and Comcare - [2000] AATA 963

DECISION AND REASONS FOR DECISION [2000] AATA 963

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/706

GENERAL ADMINISTRATIVE DIVISION          )
           Re      WILLIAM JOHN TILLEY
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Miss E. A. Shanahan, Member

Date3 November 2000
PlaceMelbourne

Decision The Tribunal affirms the decision under review.

.......(Sgd) E. A. Shanahan.........
Member
CATCHWORDS
EXTENSION OF TIME – compensation – application for review lodged five years after determination – whether acceptable explanation for delay – whether merit of application outweighs delay - whether prejudice to respondent - principles to be considered in relation to an extension of time
Administrative Appeals Tribunal Act 1975 ss. 29(2), 29(7)
Compensation (Commonwealth Government Employees) Act 1971 s. 40(1A)
Safety, Rehabilitation and Compensation Act 1988 s., 24, 27, 65(2)-(7), 62, 124
Social Security and Repatriation Legislation Amendment Act No 95 of 1985 ss. 37(1A)
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 58 ALR 305
Dickinson v Comcare (1998) 52 ALD 86
Comcare v Willems (1996) 43 ALD 253
Comcare v Russell Edward Smith (1997) 140 FCA 5 March 1997
Re Hewson and Australian Postal Corporation (1998) 50 ALD 994
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309

REASONS FOR DECISION

3 November 2000 Miss E. A. Shanahan, Member

This is an application for review of a decision of a delegate of the Department of Defence dated 21 June 1999 wherein the application for extension of time for reconsideration of a determination dated 14 September 1994 was refused. The Safety, Rehabilitation and Compensation Act 1988 ("the 1988 Act") required lodgement of such a request within 30 days of receipt of the determination.
The applicant was represented by Mr P. Trigar of counsel and the respondent, Comcare, by Mr J. Lenczner of counsel. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and numerous medical reports from treating doctors and medical expert witnesses. The applicant's treating general practitioner provided a report dated 3 July 1999 (Exhibit A1) and a further report dated 30 August 2000 (Exhibit A2). Dr Duncan provided two reports, namely a report of 11 June 1999 (Exhibit A3) and a further report 23 July 1999 (Exhibit A4). Expert evidence reports were obtained from Associate Professor Costello dated 2 December 1999 (Exhibit A5) and 18 January 2000 (Exhibit A6). The report from Dr Hillier, orthopaedic surgeon, to Dr Williams dated 4 July 2000 was admitted as Exhibit A7 and plain X-ray report, issued by Dr Stubbe on 30 June 2000, was Exhibit A8. A bone scan report and CT scan report by Dr Jost of 30 June 2000 were admitted as Exhibit A9. The respondent tendered a report from Mr Joyce, consultant urologist, dated 30 May 2000 (Exhibit R1) and a further report from Mr Joyce dated 11 July 2000 (Exhibit R2). During the course of the hearing two further exhibits were tendered, namely a letter from Phillips Fox dated 30 August 1999 (Exhibit A10), and a response from solicitors Nevin Lenny and Gross dated 15 October 1999 in reply (Exhibit A11).
Background
On 18 June 1986 the applicant was involved in a motor bicycle accident whilst engaged in a Brigade exercise and in the employ of the Australian Army. He sustained an injury to the left inguino-scrotal area and was diagnosed as having a large left scrotal haematoma. He lodged a claim for compensation on 11 May 1994. Following the accident he was treated with bed rest, analgesics and scrotal support. He was admitted to hospital on 18 June 1986 and discharged on 26 June 1986 and following discharge, light duties were ordered until 7 August 1986. He was reviewed at regular intervals thereafter. In the initial phases the applicant experienced considerable pain in the left inguino-scrotal area but, after some weeks, the pain subsided to a level that he came to accept and could cope with. In 1998, the applicant was diagnosed as suffering from a significant left-sided varicocoele. Previous investigations in 1992 had shown impaired sperm production and activity. In September 1998 the applicant underwent ligation of the left spermatic vein. The cost of this surgery was accepted by the Department of Veterans' Affairs.
In May 1994 the applicant resigned from the Australia Army and underwent a discharge medical examination on 11 May 1994. In the course of this examination he described his injuries of 1986 and, following the medical examination, was interviewed by a clerk who provided the applicant with a workers compensation claim form to complete and also a Department of Veterans' Affairs pension form. The claim to the Department of Veterans' Affairs was accepted and the applicant has been paid a small fortnightly pension since that date. The compensation application to the Department of Defence was unsuccessful, the applicant being advised, in September 1994, that compensation for the injury sustained had been denied as from 31 December 1986. The applicant's decision to leave the Australian Army was based on numerous factors relating to his personal life and also to the dissolution of the Special Investigations Branch of Military Police in 1994.
Following his discharge from the Australian Army, the applicant, after a period of six to seven months, joined the Victorian Police. He is now stationed at Wodonga where he is a Senior Constable. The applicant has retained his association with the Australian Army being a member of the General Reserve at a rank of Staff Sergeant.
Evidence before the Tribunal
The applicant gave sworn testimony that he had joined the Army at the age of 17. His father was a member of the Permanent Army at that time. He described his accident in 1986 and a period of hospitalisation following which he had several weeks away from work because of the severe pain. His pain eventually subsided to a tolerable level. At the time of the accident he did not complete any claim forms relating to any compensation Act. Following his discharge medical examination, he was given two claim forms, one the Department of Defence and the other for a Veterans' Affairs pension. Both of these forms were completed and lodged with the relevant Department. The letter from the Department of Defence denying liability as from 31 December 1986 and dated 18 June 1994 was not received by the applicant until the latter part of 1994 as he had changed his address several times between leaving the Army and establishing a more permanent accommodation. The applicant accepted this decision as he did other decisions of authority given his Army service commencing at a young age, having been reared in a disciplined family and educated by Roman Catholic priests. In addition, at that time, his life was quite hectic as he was attempting to establish employment outside the Army and had responsibilities to his wife and their only child.
In April 1997 the applicant commenced work in Wodonga as a member of the Victorian Police Force. He continues in that employment. Some months after arriving in Wodonga, the applicant noted increased severity of the pain in the left inguino-scrotal area and consulted a general practitioner, Dr G. Williams. He was subsequently referred to a surgeon, Mr H. Duncan, and underwent surgical repair of left-sided hydrocele on 23 September 1998. Despite the surgical treatment, the pain was not improved. Further investigation is being undertaken to determine the aetiology of the pain and these investigations are being paid for by the Department of Veterans' Affairs. More recent scans have been paid for by the applicant. Expert medical evidence referred to by the applicant reveals some disagreement amongst the experts as to the exact cause of the inguino-scrotal pain.
The applicant described the manner in which the pain affects his day to day life. He is unable to keep up with his peers while playing golf and sitting for long periods exacerbates the pain, as does sexual intercourse. The applicant has always undertaken regular exercise but states that he has had to cut his running from six kilometres per run to approximately two and a half kilometres because of aggravation of the pain. He expressed his anxiety regarding the lack of diagnosis and his prognosis. His doubts as to prognosis are such that he worries about his future employment and ability to support his family.
In cross-examination by Mr Lenczner for the respondent, the applicant expanded upon his symptoms of inguino-scrotal pain and the advice given by various doctors that he wear a jock-strap. He agreed that between 1987 and 1997 his pain was relatively stable and he did not consult many medical practitioners following his discharge from the Army. Consultations related to a fertility problem.
The applicant agreed that he had, at some time, seen the Notice of Rights and Obligations but he could not recall exactly when. He also agreed that he had consulted Slater and Gordon in Melbourne in 1995 but had not pursued their suggestion that a formal appointment be made to further investigate his claim. The applicant also agreed that when he joined the Victorian Police Force, he did not complain of his inguino-scrotal discomfort/pain. The applicant stated that the pain he was experiencing was the same after the operation for the varicocoele as it had been prior to this procedure. However, there was some conflicting evidence in the medical reports suggesting the pain was worse after the varicocoele surgery.
The Tribunal posed several questions to the applicant regarding his fertility investigations in 1994 but these are not relevant to the decision-making process before the Tribunal.
Medical evidence
The medical reports of treating doctors and expert medical witnesses substantiated the history given by the applicant to the Tribunal. However, the aetiology of the applicant's current inguino-scrotal pain remains in some doubt. Some medical opinions relate the development of a varicocoele to the injury in 1986 and other, equally expert, opinions state that a varicocoele does not result from trauma to the scrotal region. Mr Joyce, in his report to Comcare, raised the possibility of the applicant suffering from osteitis pubis. The investigations the applicant is currently undergoing are aimed at delineating the presence or absence of osteitis pubis.
In summary, it can be said that there is medical evidence to support the proposition that the applicant's current symptomatology is related to his injury of 1986.
Relevant Legislation
The only directly relevant legislation applying to this application is subsections 29(2) and (7) of the AAT Act. They provide:
"(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
(b)if the decision does not set out those findings and reasons:
(i)if a statement in writing setting out those findings and reasons is furnished to the applicant otherwise than in pursuance of a request under subsection 28 (1) not later than the twenty-eighth day after the day on which a document setting out the terms of the decision is furnished to the applicant - the day on which the statement is so furnished;
(ii)if the applicant, in accordance with subsection 28 (1), requests the person who made the decision to furnish a statement as mentioned in that subsection - the day on which the statement is furnished or the applicant is notified in accordance with subsection 28 (3A) that the statement will not be furnished; or
(iii)in any other case - the day on which a document setting out the terms of the decision is furnished to the applicant.
…
(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).
…"

The Tribunal has a discretionary power to extend the time for the making of an application to the Tribunal for a review of a decision. The factors to be considered in exercising that discretionary power have been considered over the years by both the Tribunal and the Federal Court. The principles to be considered in relation to an extension of time have been outlined by the AAT President, Justice D. O'Connor in Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 at page 314. These are:

"(a)prima facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however if it is proper to do so;
(b)it is relevant whether the applicant rested on his rights or took action to make the decision maker aware that the decision was being contested;
(c)any prejudice to the respondent that would be caused by granting the extension of time is relevant;
(d)any wider prejudice to the general public in terms of disruption to established practices is relevant;
(e)the merits of the substantial application are relevant; and
(f)fairness of granting the extension of time as between the applicant and other persons in a like position is relevant."

Application of the Legislation to the Facts Before the Tribunal

While subsection 29(7) of the AAT Act vests a discretion in the Tribunal to extend the time for the making of an application for review of a decision, the Tribunal has on many occasions accepted the principles set out by Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 58 ALR 305. These principles are intended to be a guide to the exercise of the discretion.
Mr Lenczner for the respondent addressed each principle in detail.
Principle (a) states:
"…It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an 'acceptable explanation for the delay' and that it is 'fair and equitable in the circumstances' to extend time." (Wilcox J in Hunter Valley, pages 310-311).

The delay between the applicant's receipt of the Department of Defence's decision in September of 1994 and application under section 62 of the 1988 Act was nearly five years. In his evidence before the Tribunal, the applicant stated that he had accepted the decision of the Department of Defence to accept liability for his inguino-scrotal injury until 31 December 1986. His reasons for doing so related to his belief in the correctness of decisions taken by authorities. It appears to the Tribunal that it was not until 1998 when he underwent surgical repair of a varicocoele that he turned his mind to seeking further information regarding his rights to compensation. He had, in 1995, sought a legal opinion from a legal firm (Slater and Gordon) but had not followed up on the first appointment. The applicant agreed that he had seen the document outlining his rights of appeal against the decision of 1994 but was uncertain as to exactly when he had read this document. The other reasons proffered for the delay was that, in 1994, he was seeking both new employment and relocating his family from Army accommodation to private accommodation. The 1988 Act states that a request for review or reconsideration should be made within 30 days of receipt of the determination. In Dickinson v Comcare (1998) 52 ALD 86 Finn J considered a period of 14 to 15 months too long a delay despite the fact that Mr Dickinson had expressed a desire to lodge an appeal 30 days after receiving the terms of the decision of the Administrative Appeals Tribunal.

Principle (b)
"Action taken by the applicant, …, 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, …, 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."

This principle of finality was advanced by the respondent on the evidence that the applicant did not communicate with the respondent between 1994 and 1999.

Principle (c)
"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: …"

The respondent's counsel argued there was prejudice to the respondent in that, the applicant's actual current medical status is undetermined. Medical opinion varies as to the relationship between the incident in 1986 and the subsequent development of a varicocoele. The possibility that the applicant's inguino-scrotal pain is unrelated to either the scrotal haematoma or the varicocoele has been raised by the respondent's expert witness, Mr Joyce, who has opined that the pain the applicant suffers could be due to osteitis pubis. The respondent has not had the opportunity to seek further expert opinion regarding this provisional diagnosis. Nor has the investigation of the applicant with respect to this provisional diagnosis been completed. The need for the respondent to seek further opinions from medical experts is a minor prejudicial factor.

The respondent argued that it is unclear as to which legislation is applicable to any claim by the applicant for compensation. The initial injury certainly occurred under the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act") and his claim was lodged (1999) under the 1988 Act. The Tribunal was referred to section 40 of the 1971 Act and to section 37(1A) of the Social Security and Repatriation Legislation Amendment Act No. 95 of 1985. It would appear that under either of these sections, there would be no permanent impairment entitlements or lump sum entitlements. The respondent also argued that the efflux of time is such that the applicant's memory of his symptoms could be impaired. This criticism also would relate to medical assessment of the current situation and its relationship to the original injury of 1986. Comcare v Russell Edward Smith (1997) 140 FCA 5 March 1997 was referred to.

Principle (d)
"…the member absence of prejudice is not enough to justify the grant of an extension: … A delay which may result, …, in the unsettling of other people … or of established practices (…) is likely to prove fatal to the application."

This principle was not addressed in detail and does not appear relevant given the facts presented to the Tribunal.

Principle (e)
"The merits of the substantial application are properly to be taken into account in considering whether an extension of time shall be granted: …"

Given the lack of a definitive diagnosis as to the cause of the applicant's inguino-scrotal pain, it is difficult to definitively assess the merits of the applicant's application. It is obvious that further medical opinion is required to delineate the relationship between the initial injury in 1986 and the applicant's current medical status. Prima facie there seems to be a relationship between the event of 1986 and his current symptomatology.

Principle (f)
"Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant…"

This Principle was not immediately addressed. It is unlikely that there will be an applicant in a similar situation on a same fact basis.

Mr Trigar for the applicant limited his argument to the question of extension of the time in order for there to be a reconsideration. He contended that the respondent had not replied in detail to the questions raised in the applicant's application and had simply stated that application for review should be made in 30 days. The decision-maker was not concerned with the merits of the application or original decision nor any prejudice to either respondent or applicant. They did not advise whether further information should be given. With respect to merits, Mr Trigar argued that there were ongoing symptoms attributable to the incident in June of 1986, that there is a well-documented injury and that the applicant's reasons for a delay in seeking an extension of time are acceptable. The applicant denied there was any prejudice to the administration in having to open or re-open the applicant's file. Mr Trigar was of the opinion that limitation of action in Commonwealth cases was significantly different from those that arise in the Administrative Appeals Tribunal. On the basis of Comcare v Willems (1996) 43 ALD 253 the Full Court of the Federal Court, quoting Finn J at first instance, agreed with Finn J's statement that:
"In coming to its decision Comcare, properly, should have regard (i) to the cause of, and the explanation for, the delay in submitting the request; (ii) to [the respondent's] conduct in this; and (iii) to the consequences to Comcare of the delay …"

Finn J's comments also refer to the period of delay and to the merits of the substantive request. Counsel for the applicant argued that Comcare had not had regard to the cause and explanation of the delay and had not provided reasons as requested in 1999 for their failure to seek such explanations.
Conclusion

Whilst the Tribunal is of the opinion that the applicant's case has considerable merit, this merit is outweighed by the period of delay of nearly five years in seeking a review of the original decision of 14 September 1994. The actual diagnosis or aetiology of the applicant's current symptomatology is unresolved. Despite the respondent's submissions, the Tribunal does not find any prejudice exists with respect to the respondent. The applicant's reasons or explanation of the delay, namely that he had always accepted the decisions of the superior authority, are not an acceptable explanation of the delay.
For these reasons the application for extension of time to apply for reconsideration of the decision of 21 June 1999 is refused. The decision under review is affirmed.

I certify that the twenty-six (26) preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E. A. Shanahan, Member
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  6 September 2000
Date of Decision  3 November 2000
Counsel for the Applicant        Mr P. Trigar
Solicitor for the Applicant         Nevin Lenne & Gross
Counsel for the Respondent    Mr J. Lenczner
Solicitor for the Respondent    Phillips Fox