Waite and Australian Postal Corporation

[2004] AATA 1274

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1274

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1194

GENERAL ADMINISTRATIVE DIVISION		)
Re		JUDITH WAITE

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Ms R HUNT

Date1 December 2004

PlaceSydney

Decision The Tribunal decides not to exercise the discretion to grant an extension of time.  

……[sgd] Robin Hunt…..

Senior Member

CATCHWORDS

COMPENSATION - application for extension of time in which to lodge an application for review – awareness of 60 day time limit – explanation for delay – prejudice – merits of substantive case – extension of time not granted.

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 62 and 65

Administrative Appeals Tribunal Act 1975 (Cth) s 29

Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315

REASONS FOR DECISION

1 December 2004 Ms R HUNT           

background

1.      Ms Judith Waite, the Applicant, was an employee of Australian Postal Corporation (Australia Post) when, on 4 August 2002, she lodged a claim for rehabilitation and compensation. Ms Waite claimed that she had, on 5 June 2002, suffered anxiety and depression as the result of various incidents while working in her usual workplace.

2.      Ms Waite’s claim was rejected on 28 August 2002. Australia Post reconsidered the rejection decision at Ms Waite’s request and affirmed it on 17 September 2002. Ms Waite made an application to the Tribunal on 20 September 2004 for an extension of time to enable review of the reconsideration decision by the Tribunal. Ms Waite claimed that she was entitled to an extension of time because, when she approached an employee of Australia Post about the reconsideration decision, she had been told that the case would be re-assessed. To date she had not been informed of any further result from the review she expected.

3.      Ms Waite attended a Tribunal hearing with her father, who provided some assistance. Ms Waite referred to correspondence and other documents tracing the history of her case.  She gave oral evidence to the Tribunal about the various meetings and discussions that took place between her and officers of Australia Post. Ms Waite argued that her request for further re-consideration had never taken place as promised by Australia Post and that she was still awaiting resolution of her claim. She also suggested that she had not been properly advised of her appeal rights and that these factors had caused the delay in her lodging the review request with the Tribunal.

4.      Australia Post countered that it had made a final reconsideration decision on 17 September 2002 and had notified Ms Waite appropriately of the decision and her rights. Further, Australia Post notified Ms Waite again in writing on 4 December 2002 that evidence she provided had not persuaded the reconsideration officer to change her reconsideration decision. Ms Waite agreed that she had received these letters but disagreed with Australia Post’s contention that her claim was resolved in September 2002. She said it had been ongoing.

law and issues

5. Section 65(4) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) modifies section 29 of the Administrative Appeals Tribunal Act 1975 (the Act) so as to extend the time for lodgement of an application for review from 28 days to 60 days. Section 29(7) of the Act gives the Tribunal discretion to further extend the time for making an application. The leading case setting out matters affecting exercise of the discretion is Hunter Valley DevelopmentsPty Ltd v Cohen (1984) 7 ALD 315. Wilcox J in Hunter Valley found circumstances that affect the rule that proceedings should commence on time include:

• Prima facie, proceedings should be commenced within the prescribed period and an applicant must advance an acceptable explanation for the delay.

• Any action that the applicant has taken, apart from applying for the review, which makes a decision maker aware that decisions previously made are not final.

• Prejudice to the respondent.

• Public considerations, including the unsettling of established practices or of other people, may be taken into account.

• The merits of the application for review.

• Considerations of fairness as between the applicant and others in a similar position.

6.      Australia Post argued that none of the above principles apply in Ms Waite’s favour. Ms Waite claimed that she did not regard the reconsideration decision as final. This argument, in my view, ties in with point 2 above. Ms Waite also raised issues of fairness in that she believed her complaint about management practices had not been resolved and that Australia Post had not made her aware of her review rights.

ms waite’s submissions

7.      Ms Waite said that the way she had been treated by management was all part of her claim for compensation. Her complaint about management practices had not been resolved and this had prevented her from returning to work for 12 weeks after she made the initial complaint in September 2002. Her GP had referred her to Dr Glass, Consultant Psychiatrist, after an incident at work.  Dr Glass’s report of 22 August 2002 set out that it would be advisable for conflict resolution to take place before Ms Waite returned to work. Ms Waite had produced Dr Glass’s report to Australia Post and they had been aware of this recommendation but had not resolved the conflict.

8.      Further, Ms Waite told the Tribunal that while the reconsideration advice to her, dated 17 September 2002, set out that the original rejection of her claim was affirmed, it had not considered her complaint about management practices. She had, therefore, sought reconsideration of that aspect of the matter. This meant the reconsideration was not final.

9.      As well, Ms Waite claimed that she was not told about her review rights. This was another reason why time should not run to prevent application to the Tribunal.

analysis

10.     While it would obviously be advisable to resolve any conflict in the workplace, I note that meetings and discussions did take place with Ms Waite and that, on her own admission, it was she who postponed a planned meeting on 7 February 2003. In any event, the matters to be discussed were industrial relations matters concerning management practices that troubled Ms Waite.  As Australia Post argued before me, this was not a matter that determined whether Ms Waite had suffered an injury at work. The decision of 28 August 2002 and reconsideration decision of 17 September 2002 dealt with the injury and compensation claim.

11. As to whether the reconsideration was final, I find that the reconsideration decision of 17 September 2002 was final. The date within which Ms Waite had the opportunity to apply to the Tribunal expired 60 days later, in November 2002, under section 65(4) of the SRC Act and section 29 of the Act as set out above.

12.     Additionally, Ms Waite argued that Australia Post did not make her aware of her review rights. However, in her letter to Australia Post dated 7 December 2002, Ms Waite wrote that she had no choice but to seek legal advice and appeal to the AAT. From that statement it is plain that Ms Waite was aware that she had review rights to this Tribunal.  Australia Post’s letter dated 17 September 2002 describes the right of review to this Tribunal and refers to an enclosed copy of rights form. I, therefore, find that Ms Waite was notified of her rights.

13.     As well, Australia Post’s further letter to Ms Waite dated 4 December 2002 again refers to the previously advised right of review to this Tribunal. Ms Waite noted that a hand-written alteration had been made to the reference to the previous letter of 17 September 2002. It may be that the original letter dated 4 December 2002 contained the wrong date of the making of the reconsideration decision. Nevertheless, the letter did again advise Ms Waite that she had review rights. Ms Waite referred to her intention to go to the AAT in her own letter of 7 December 2002. Accordingly, I find that even if Ms Waite was not adequately informed in September 2002, she was aware of her rights in December 2002. Despite this, she did not approach the Tribunal until late 2004, almost 2 years later.

conclusion

14.     I find that Australia Post made a final reconsideration decision on 17 September 2002 of Ms Waite’s injury and compensation claim. This is the reviewable decision before the Tribunal.

15.     On balance, I am satisfied that Ms Waite was notified of her review rights in the notification of reconsideration letter dated 17 September 2002. Alternatively, Ms Waite was notified of her review rights in December 2002. This means that Ms Waite had ample opportunity to apply to the Tribunal for review of the reconsideration decision in either November 2002 as a result of the September notification or in February 2003 as a result of the December 2002 notification.

16. I further find that consideration of her compensation claim is not ongoing and that her complaint about management practices is not part of her compensation claim although the complaint is related to the incident or incidents that gave rise to her compensation claim. It is outside the jurisdiction of this Tribunal to review a complaint about management and any decision made in that respect. Section 65(3) of the SRC Act enables the Tribunal to sit in a compensation matter only.

17.     Finally, taking into account the principles set out in the Hunter Valley case, I find no justification for granting the extension of time sought. Ms Waite’s compensation claim has been given duly considered and the respondent, Australia Post, would suffer undue prejudice in being asked to present evidence to the Tribunal after the lapse of two years. Time limits for making of review applications to this Tribunal are set for good reason and any extension should not be granted unless there is an acceptable excuse for the delay. I find it would not be fair and equitable to extend the time in this case and would be adverse and inconsistent with the settled practices in respect to other applicants.

18.     It follows that I will not exercise the discretion in favour of Ms Waite on this occasion.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Ms R Hunt, Senior Member

Signed:     ….....…....................................

Associate: Reuben Mansour

Date of Hearing  26 November 2004
Date of Decision  1 December 2004
Representative for the Applicant      Self Represented
Counsel for the Respondent             Mr Polin
Solicitor for the Respondent              Sparke Helmore Lawyers