Trudy Zanbergs and Commonwealth Bank of Australia
[2014] AATA 866
•21 November 2014
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2014/4636
General Administrative Division )
Re: Trudy Zanbergs
Applicant
And: Commonwealth Bank of Australia
RespondentDIRECTION
TRIBUNAL: Senior Member J Toohey
DATE: 25 November 2014
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
a)Where at point two on page one the decision reads “9 October 2014”, the decision shall now read “5 September 2014”.
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Senior Member J Toohey[2014] AATA 866
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/4636
Re
Trudy Zanbergs
APPLICANT
And
Commonwealth Bank of Australia
RESPONDENT
Decision
Tribunal Senior Member J F Toohey
Date 21 November 2014 Place Sydney 1.The application for an extension of time in which to file an application for review of the decision made by the respondent on 2 January 2014 is granted.
2.The time for making the application for review is extended to 9 October 2014.
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Senior Member J F Toohey
CATCHWORDS – PRACTICE AND PROCEDURE – EXTENSION OF TIME – factors to be considered – whether acceptable explanation for delay – whether applicant instructed solicitors to delay application – whether delay on part of solicitors sufficient reason to grant the extension – extension of time granted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 27, 29(2)
Safety Rehabilitation and Compensation Act 1988 (Cth) s 65
Cases
Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176
Gabor v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 706
REASONS FOR DECISION
Senior Member J F Toohey
Background
These are written reasons for a decision given at the conclusion of a hearing on 9 October 2014 to grant the applicant an extension of time in which to seek review of a decision by the respondent.
On 5 September 2014, Ms Trudy Zanbergs sought an extension of time in which to seek review of a decision dated 2 January 2014 by which the respondent determined it was not liable to compensate her under the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for an injury that she claimed resulted from her employment.
An application for review of a decision must be lodged with the Tribunal within 60 days from the day on which the decision is given to the applicant: s 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) as modified by s 65 of the SRC Act. The Tribunal has discretion to extend the time for lodging an application if satisfied that it is reasonable in all the circumstances to do so: s 27 of the AAT Act.
In this case, allowing for the ordinary course of post, Ms Zanbergs would have been given notice of the respondent’s decision on or about 6 January 2014 and an application for review should have been lodged on or about 7 March 2014.
I have to decide whether it is reasonable in all the circumstances to grant Ms Zanbergs an extension of time.
The respondent’s determination and reconsideration
On 17 September 2013, Ms Zanbergs lodged a claim for compensation for anxiety and depression which she said was the result of bullying, harassment and discrimination at work. The respondent investigated her allegations and, by letter dated 6 November 2013, advised it had determined it was not liable to compensate her in respect of her claimed injury. The respondent further advised that Ms Zanbergs was entitled, within 30 days, to ask for a reconsideration of its determination.
By email dated 9 December 2013, Ms Zanbergs asked the respondent to reconsider its determination.
By letter dated 2 January 2014, the respondent advised it had reconsidered the available evidence and had decided to affirm its decision to refuse liability. The letter concluded with advice that Ms Zanbergs was entitled to ask the Administrative Appeals Tribunal to review the determination. It advised as to the form of such application and concluded with the following:
You should lodge your application within 60 days of receiving this determination. After this period you can apply to the AAT for an extension of time.
On 14 January 2014, Ms Zanbergs sent an email to the officer who made the original determination thanking him for having the matter reconsidered, expressing her disappointment, and stating:
I am now considering my options which may include seeking legal counsel.
I think I read that I need to be (sic) provide you with 5 days notice if this is my intent, but am unsure if this is correct?
If you do require notice, please consider this email as providing this.
Is there anything else I need to provide or anything I should be made aware of, prior to engaging legal advice and support.
The officer replied by email on the same day:
You are not required to give any notice. If you believe the decision is wrong in law and fact, you may appeal the decision to the AAT within 60 days of the decision. This can be done either by completing the form 1 (available of their website) (sic) or by obtaining solicitors who can do this for you.
The AAT will inform us if an appeal is lodged. No other action is required.
So much is not in dispute.
The application for extension of time
On 5 September 2014, the Tribunal received the application for extension of time made on the Tribunal’s standard form under cover of a letter from Ms Zanbergs’ solicitors which stated only that the application was enclosed. The form gave the following typewritten reasons for seeking the extension:
I received advice from Counsel on 21 August 2014 that I have reasonable grounds for review of the decision.
I believe that the behaviour to which I was subjected in the workplace between February and August of 2013 was not reasonable administrative action taken in a reasonable manner.
I received medical advice that I have a permanent psychological impairment resulting from the behaviour to which I was subjected in the workplace and I will require ongoing treatment and suffer ongoing economic loss.
I was reluctant to commence proceedings by way of a formal application for review until I had advice that I had reasonable grounds of success.
The form appears to have been signed by Ms Zanbergs’ solicitor. I accept Ms Zanbergs’ evidence that it is not her signature and she had no input into the application. As set out below, it was drafted by her counsel, Mr Barter, after a conference with Ms Zanbergs on 21 August 2014, and Mr Barter emailed it to her solicitor, Mr Adams. Mr Barter represented Ms Zanbergs at the hearing of this application.
Ms Zanbergs’ evidence
Giving evidence before the Tribunal, Ms Zanbergs agreed that the letter of 2 January 2014 advised that, if dissatisfied with the determination, she should lodge her application within 60 days but said she did not understand that, after that time “it’s all over”. I accept what she says. The letter did not suggest any urgency or implications of delay, only that she should lodge her application within that time after which an extension of time could be sought.
Ms Zanbergs gave evidence that, in early January 2014, she contacted Mr Adams, whose name she obtained from her therapist; she gave Mr Adams brief details of the reconsideration determination and emailed a copy to him.
Ms Zanbergs cannot recall the precise date she first contacted Mr Adams but his file, a copy of which has been provided to the Tribunal, includes handwritten notes dated 29 January 2014 which appear to be of their first meeting. A letter dated 31 January 2014 confirms their meeting. It is clear from this that, at the latest, Ms Zanbergs met with Mr Adams within four weeks of receiving the reconsideration determination.
Ms Zanbergs says she contacted Mr Adams on several occasions after their initial meeting to inquire about her claim. She believes she may have seen him twice between January and March 2014, and may have had conversations with him between March and August 2014. There does not appear to be any record of these contacts but I accept that Ms Zanbergs made attempts to contact Mr Adams over that period.
On 21 August 2014, after medical reports requested by Mr Adams had been received, Ms Zanbergs had a conference with Mr Barter, shortly after which the present application was made.
Counsel for the respondent put to Ms Zanbergs that she did not file her application for review within 60 days because, as stated in her application for an extension of time, she did not wish to do so until she had received advice as to her prospects of success, and that depended, in part, on further medical reports. Ms Zanbergs disagreed. She said she was unfamiliar with the process; she was guided by Mr Adams’ advice to “leave it with him” and gave him instructions to the effect of “Do what you have to do”. She recalled a conversation with him to the effect that, if a medical report was not received “in time” they could “file an extension of time” and says had she known that time was running against her, she would have rung the doctor and asked him to “move it along”. She denies being reluctant to proceed with her application for review and denies giving the instructions suggested by the application to the Tribunal.
Mr Adams’ statement and file
In a written statement to the Tribunal, Mr Adams said, with considerable frankness, that he has a small, busy practice with a large number of NSW workers compensation matters and does not normally practice in Commonwealth matters or in the Administrative Appeals Tribunal. He said he received instructions from Ms Zanbergs in late January 2014; in late February 2014, he requested reports from her counsellor; in about April he requested the respondent’s complete file; in early May 2014 an appointment was made for Ms Zanbergs to see a psychiatrist whose report was received in mid-June 2014. Mr Adams stated that Ms Zanbergs had always complied promptly with any suggestion made by him in preparing her case and there had been no delay on her part.
On 30 June 2014, after receiving a medical report, Mr Adams filed a claim for compensation for permanent impairment with the respondent. By letter dated 9 July 2014, the respondent rejected that claim.
Documents in Mr Adams’ file show that he briefed Mr Barter on 8 August 2014 and a conference was held with Ms Zanbergs on 21 August 2014.
At the request of the respondent, Mr Adams made his complete file available to the Tribunal. For the most part it comprises the usual claim forms, correspondence and medical reports. At the respondent’s request, I examined the small bundle of documents subject to legal professional privilege to ascertain whether there was anything to suggest Ms Zanbergs instructed Mr Adams to wait on the medical report and advise as to the prospects of success before applying for review; alternatively, whether there was anything to indicate that Mr Adams advised her of the implications of delaying her application for review. I am satisfied there is nothing on the file to suggest either of these occurred.
After consulting with Mr Adams by telephone during the hearing, Mr Barter said he now recalled it was he who drafted the terms of the application for extension of time, although he did not sign the application form. On checking his notes of their meeting, he said he found nothing to suggest the statements in the application for extension of time reflected instructions to that effect by Ms Zanbergs and he could not recall her giving those instructions. He thought the statement could have been a misunderstanding on his part. He said, also with considerable frankness, that the jurisdiction in which he and Mr Adams practise is not normally subject to the same time limits as in this tribunal, and neither he nor Mr Adams was aware that time was running against Ms Zanbergs.
Consideration
25. The principles by which a decision whether to grant an extension of time should be guided were set out by Wilcox J in Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176. They were summarised by Bromberg J in Gabor v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 706 at [7] as follows:
(a)[W]hilst 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.
These principles are not to be applied mechanically. All of the circumstances of the case must be considered, the overriding consideration being whether it is reasonable in all the circumstances to grant the extension.
The respondent submits that Ms Zanbergs cannot rely on the failure of her legal representative to make her application in time as an explanation for the delay. I accept that an applicant who, for example, does little or nothing to pursue an application, or fails to act on advice, or gives inconsistent or ambiguous instructions, cannot be said to have an acceptable explanation for delay merely because her solicitors also delayed matters. Nor should delay by a legal representative be sufficient reason if the weight of other considerations is against an extension of time. I am satisfied neither is the case here.
The respondent says this is not a case where the fault lies entirely with Ms Zanbergs’ legal representatives, that her application to the Tribunal makes clear that she gave instructions to delay making her claim pending receipt of medical evidence and advice as to her prospects. I do not agree. Mr Adams’ and Mr Barter’s evidence shows otherwise. They accept responsibility for the delay. There is no evidence Ms Zanbergs gave the instructions suggested.
Nor do I agree that Ms Zanbergs was aware of her rights and rested on them. Her conduct makes clear that she has sought to have the decision reviewed at every step. She sought reconsideration within time when that was available to her. She made inquiries about the time for seeking review by the Tribunal of the reconsideration decision and instructed a solicitor well within the 60 days available to her. I accept that she made enquiries of Mr Adams as to the progress of her matter. Everything she has done is consistent with an intention to proceed. I do not accept that the documents before the Tribunal indicate a different intention. It cannot be said that she rested on her rights.
The respondent submits that it would suffer presumptive prejudice were the extension to be granted because, now that Ms Zanbergs is back at work, she cannot be examined to assess what, if any, incapacity she suffered at the time. However, the events complained of occurred relatively recently and I cannot see why an opinion could not be obtained if the respondent wishes, based on what the applicant claims. Assessments are commonly sought some time after the event.
For the respondent it is submitted that the substantive application, if allowed, has little or no prospect of success. The claim concerns a psychological injury said to have occurred following a meeting between Ms Zanbergs and her manager to discuss her performance after which she went home very distressed and saw her doctor. Ms Zanbergs claims the meeting was not the only occasion on which she was treated unfairly. The respondent says that, even if the event, or events, complained of contributed to a significant degree to any injury, it was the result of reasonable administrative action taken in a reasonable manner in respect of her employment and therefore Ms Zanbergs is not entitled to compensation.
Considering the evidence currently on file, there may be some force to this submission. However, claims of this nature frequently turn on what actually occurred in the workplace and it is often not until evidence is heard and tested that findings can be made about the nature of any administrative action. Ms Zanbergs’ claim may not appear strong but I do not think it can be said that it has little or no prospect of success.
It also appears that, if her claim succeeds, the value of any compensation that might be payable to Ms Zanbergs would be very small. That is because of the very brief period of incapacity alleged to have followed the events complained of. However, that is not a reason to refuse the extension of time.
Conclusion
I am satisfied that it is reasonable in all the circumstances of this case, to extend the time for Ms Zanbergs to make an application for review.
35. I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Ms J F Toohey, Senior Member.
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Associate
Dated 21 November 2014
Date(s) of hearing 9 October 2014 Representative for the Applicant Graham Barter, Counsel Representative for the Respondent David Richards, Counsel
Key Legal Topics
Areas of Law
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Civil Litigation & Procedure
Legal Concepts
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Limitation Periods
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Extension of Time
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Jurisdiction
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