Zablotsky and Swire Pacific Ship Management (Australia) Pty Ltd (Compensation)
[2023] AATA 2195
•21 June 2023
Zablotsky and Swire Pacific Ship Management (Australia) Pty Ltd (Compensation) [2023] AATA 2195 (21 June 2023)
Division:GENERAL DIVISION
File Number(s): 2019/3987
Re:Igor Zablotsky
APPLICANT
AndSwire Pacific Ship Management (Australia) Pty Ltd
RESPONDENT
DECISION
Tribunal:Senior Member O'Donovan
Date:21 June 2023
Place:Canberra
The decision under review dated 4 June 2019 is set aside and the applicant is granted an extension of time until 14 July 2023 to seek review of the respondent’s decision dated 19 October 2016.
…………………[sgd]…………………
Senior Member O’Donovan
CATCHWORDS
EXTENSION OF TIME - Seafarers Act - whether Tribunal has jurisdiction to review decision - whether an extension of time to seek an internal review should be granted – whether costs should be awarded – extension of time granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 ss 37, 42B
Seafarers Rehabilitation and Compensation Act 1992 ss 76, 78, 88
CASES
Arbon v Comcare [2017] AATA 2870
Beecher and Telstra Corporation Limited [1994] AATA 6
Bernobich and Novion Property Group [2016] AATA 92
Carvalho and Comcare [2019] AATA 1130
Comcare v A'Hearn (1993) 45 FCR 441
Commonwealth of Australia v Snell (2019) 269 FCR 18
Hunter Valley Developments v Cohen (1984) 3 FCR 344
Muirden and Australian National University [2019] AATA 5163
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Telstra v Hannaford [2006] FCAFC 87
Thompson and Comcare [2019] AATA 714Turner and Comcare [2021] AATA 2844
REASONS FOR DECISION
Senior Member O'Donovan
21 June 2023
On 4 November 2015, when the applicant was working as a second officer aboard the ship Pacific Dispatch, he suffered an injury. He noted the onset of pain near the heel of his left foot which steadily increased. He reported the injury and received some initial treatment but continued to work on the vessel until 8 November 2015 when he returned to shore. He was diagnosed as suffering plantar fasciitis, an inflammation of the fascia on the sole of the foot. Subsequent investigations revealed a tear of the plantar fascia.
The applicant made a claim under the Seafarers Rehabilitation and Compensation Act 1992 (Seafarers Act). The claim was accepted, and compensation was paid until October 2016. The payment of compensation was ceased on 19 October 2016 on the basis that the applicant’s injury had resolved. On its face the decision ceased liability not just in relation to the applicant’s plantar fasciitis but also in relation to conditions which the applicant claimed were related to the original injury including pain in his left knee, complex regional pain syndrome and psychological distress.[1]
[1] T102 p 213.
The applicant instructed lawyers to seek reconsideration of the determination ceasing liability. Under section 78 of the Seafarers Act, any request for reconsideration must be given to the employer within 30 days after the day on which the determination first came to the notice of the claimant, or within such further period (if any) as the employer, either before or after the end of that 30-day period, allows.[2]
[2] Section 78(3)(b).
In late 2016, the applicant’s lawyers sought and received from the respondent short extensions of time to lodge a request for reconsideration. However, no request for reconsideration was ever made. The reasons for this failure will be explored further in the body of these reasons.
In 2019 the applicant changed lawyers. On 10 May 2019 a fresh request for an extension of time to request reconsideration was made. On 4 June 2019 Sparke Helmore, on behalf of the respondent confirmed that the respondent declined the request for a further extension of time to request a reconsideration of the determination dated 19 October 2016.
On 4 July 2019 an application for review of that decision was lodged with the Administrative Appeals Tribunal (the Tribunal).
Two further applications were made to the Tribunal by the applicant. The first in 2020 and the second in 2021. These applications related to claimed physical and psychological sequelae arising from the plantar fasciitis suffered in 2015. For reasons which are not entirely clear, the 2019 application proceeded through the Tribunal’s processes alongside the substantive claims. In November 2022, all three matters were listed for hearing in June 2023.
After it was brought to the parties’ attention by the Tribunal that the extension of time had not been dealt with, the parties urged the Tribunal to deal with the extension of time question before dealing with the substantive claims made in the 2020 and 2021 applications. The Tribunal agreed to proceed as the parties urged and so the extension of time application has been dealt with separately and prior to the consideration of the related applications. The parties are not in agreement about what the impact on the related applications would be if no extension of time were granted.
The matter came on for hearing on 7 June 2023. The only question to be determined in this matter is whether the Tribunal should exercise the discretion provided for in section 78(3)(b) of the Seafarers Act and allow a further period for the making of a request for reconsideration. If it is granted, the applicant can seek reconsideration of the respondent’s decision to deny ongoing liability in relation to his plantar fasciitis and related conditions. If the extension is granted, then the respondent must deal with any request for reconsideration which the applicant may make. If the applicant is dissatisfied with any subsequent decision by the respondent, then he can make an application for review of that decision to the Tribunal.
I have structured these reasons as follows. First, I set out the basis for the Tribunal’s jurisdiction to review the decision of 4 June 2019. Second, I set out my findings of fact and the evidence on which they are based. Third I set out the legal architecture which is relevant to the discretion which the Seafarers Act confers on the respondent and, in the context of this matter, the Tribunal standing in its shoes. Finally, I set out my decision and the reasons for it.
The Tribunal’s Jurisdiction
For a number of months prior to the hearing of this application, the respondent was insistent that the Tribunal did not have jurisdiction to hear the extension of time application until a further decision was made by Swire Pacific Ship Management (Australia) Pty Ltd (Swire Pacific). The applicant did not share that view. Prior to the hearing commencing, it was unclear whether the power of the Tribunal to exercise the discretion contained in section 78(3)(b) would be the subject of argument.
At the hearing the respondent accepted that the Tribunal did have jurisdiction to consider how the discretion in section 78(3)(b) should be exercised. It did so on the basis that a letter dated 11 January 2017 constituted a determination for the purposes of the Seafarers Act and the letter dated 4 June 2019 constituted a reviewable decision.
The applicant took the view that the Tribunal had jurisdiction but arrived at that conclusion by a different route. He contended that a letter from Sparke Helmore to the applicant’s solicitor dated 17 May 2018 constituted a determination for the purposes of the Seafarers Act and the letter of 4 June 2019 constituted a reviewable decision.
I am satisfied that I have jurisdiction to determine whether a further period should be allowed for the making of a request to reconsider the determination dated 19 October 2016 but on a different basis from those contended for by the parties.
Section 76 of the Seafarers Act defines a reviewable decision as a decision made under section 78. Review of a reviewable decision can be sought in the Tribunal.[3] There is no question that the decision recorded in the letter of Sparke Helmore dated 4 June 2019 refusing to allow further time to request reconsideration of the determination dated 19 October 2016 is a decision made under section 78(3)(b). It is therefore a reviewable decision. There is no need to identify any prior determination for it to have that character. This conclusion is consistent with previous decisions of the Tribunal.[4]
[3] Section 88.
[4] Beecher and Telstra Corporation Limited [1994] AATA 6; Thompson and Comcare [2019] AATA 714; Carvalho and Comcare [2019] AATA 1130; Muirden and Australian National University [2019] AATA 5163; and Turner and Comcare [2021] AATA 2844 at [58].
On this basis I am satisfied I have jurisdiction to review the decision refusing to allow further time to request review of the respondent’s determination.
Findings of Fact
The evidence before me consists of the following:
(a)A written statement of Igor Zablotsky dated 30 March 2020 (Exhibit A1);
(b)Two bundles of material drawn from the applicant’s former solicitors’ files (Stacks Goudkamp), including:
(i)One bundle commencing with a document headed ‘File Copy’ and dated 20 August 2016, concluding with an email from Cali Baldwin dated 29 June 2018 (Exhibit R1); and
(ii)One bundle commencing with an email from the applicant to Ryan Brown dated 3 November 2016, concluding with an email from Cali Baldwin to the applicant dated 15 June 2018 (Exhibit R2);
(c)A bundle of medical documents dated between 2015 and 2022, supplied by the respondent (with the applicant’s consent) after the hearing was concluded (Exhibit R3); and
(d)A set of ‘T-Documents’ lodged under section 37 of the AAT Act (T-Docs).
In addition to providing a statement the applicant gave supplementary oral evidence and was cross-examined. On the whole, I got the impression that the applicant was doing his best to recall honestly what he knew about his rights of review as explained to him by his lawyers. He was however unwilling to concede that he ever had a proper understanding of the time limitations imposed on him by the Seafarers Act.
Having reviewed the contemporaneous documents, I am satisfied that the applicant did at particular points in time have a good understanding of the time limits imposed on him if he wanted to dispute the decision. To the extent that his oral evidence suggests otherwise, I do not accept that it accurately states his understanding at the relevant time. I am unsure whether this inaccuracy was the result of a faulty memory or a deliberate decision on the applicant’s part not to concede a fact he perceived as unfavourable to his application. That however is not a question I need to resolve in order to dispose of this application. For present purposes it is sufficient to note that for the most part I consider that the contemporaneous documents shed more light on the reasons why a reconsideration of the determination was not pursued, than the applicant’s recollection reflected in his evidence.
My findings on material questions of fact are set out below. To the extent that any finding is controversial I have identified the key pieces of evidence on which the finding is based.
The applicant is an experienced seaman. In late 2015 he was engaged by Swire Pacific to perform work as a Second Officer on board the ship Pacific Dispatch. The work involved 12-hour shifts. While performing that work the applicant developed intense heel pain. He reported it promptly and received some treatment in relation to the pain, however he continued to work. On 8 November 2015 he finished up on the vessel and returned to his home in Sydney. He was subsequently diagnosed with plantar fasciitis and an x-ray showed a ‘deep surface partial tear of the plantar fascia’. A claim was made for compensation in relation to plantar fasciitis. This claim was accepted, and the applicant was paid compensation for incapacity and medical treatment.
In the months that followed, the applicant’s symptoms did not resolve (and there was some querying of whether the diagnosis of plantar fasciitis was strictly correct) and by April 2016 he was reporting psychological symptoms. He began to use a walking stick.
In May 2016, at the request of the respondent, the applicant was examined by Associate Professor Miniter, an orthopaedic surgeon. Associate Professor Miniter was sceptical about the applicant’s presentation and concluded that he was fit to return to work without restrictions.
At the same time, the applicant’s range of treating doctors was expanding. He came under the care of a psychiatrist and a pain management specialist. The applicant was diagnosed as suffering from complex regional pain syndrome which, it was said, developed as a result of the injury to the applicant’s plantar fascia. The applicant was also taking a significant quantity of medication including the strong pain medication Endone.
The respondent engaged a private investigator who undertook video surveillance of the applicant in July and August 2016.
By this time the applicant’s reported symptoms expanded further to include knee pain. This pain was investigated and led ultimately to surgery. The applicant’s treating doctor seems to have expressed the view that there was a relationship between the applicant’s original injury and his knee problems addressed by the surgery.
By October 2016 a significant number of reports were available about the applicant’s symptoms and their origin. Broadly speaking they fell into two categories. On the one hand there were reports which supported the conclusion that the applicant was exaggerating or fabricating symptoms. This view was expressed by Associate Professor Miniter and enjoyed some support from a GP, Dr Blagova and the Occupational Rehabilitation Progress Reports prepared by Melanie Parker-Doney. On the other hand, the applicant’s treating doctors were identifying a wide constellation of symptoms which were the subject of intense treatment involving the prescription of extremely potent pain medication and hospital admissions. The applicant’s treating doctors regarded the applicant’s workplace injury suffered on 4 November 2015 as the source of the applicant’s problems.
On 19 October 2016 the respondent made a decision to decline further liability in relation to the applicant’s claim of ‘plantar fasciitis, left foot’, ceasing all payments of compensation. Liability was ceased on the basis that the applicant had recovered from any injury, disability or incapacity that he might have suffered as a result of the incident in the course of his employment. The decision purported to extend to a denial of liability in respect of all secondary injuries said to arise from the plantar fasciitis including his left knee pain, complex regional pain syndrome and psychological distress.
As the applicant had been given a copy of one of Associate Professor Miniter’s reports which expressed scepticism about his symptoms in June 2016, he had already been to see lawyers at Stacks Goudkamp (Stacks) in August 2016 to discuss the possibility that he may be cut off from compensation. On 17 August 2016 Stacks sent the applicant a letter stating:
You have asked us to provide you with a written advice detailing your rights and entitlements resulting from your injury, including a potential damages claim for negligence against your employer and/Chevron [a contractor to whom Swire Pacific were providing services when the applicant was injured].
The applicant responded on 22 August 2016 indicating that he was gathering further information.
On 20 October 2016, the day after the respondent’s adverse determination was made, the applicant contacted Stacks again. He wrote in an email:
Ryan, could you please let me know when I can see you in your office ASAP, so we can sign an agreement and discuss action plan…?
I am not sure what would be better from legal point of view: Should I reply to this Letter of Determination by myself or should I leave it to you to give it more “legal weight” and highlight seriousness of my intention not just appeal their decision, but to seek maximum compensation in all possible venues for the losses and damage that this injury inflicted…
I note that the applicant was born in the Soviet Union and English is not his first language. The emails reproduced in these reasons for decision are quoted verbatim.
The applicant met with Ryan Brown of Stacks in early November 2016. I am satisfied that at least two legal options were discussed with the applicant. First, pursuing a review under the Seafarers Act and second, pursuing an insurance claim for total and permanent disability under his superannuation insurance cover.
There is a file note which I am satisfied is a note made of a conversation between Mr Brown and the applicant. From the terms of the file note it is clear that the statutory time limit in the Seafarers Act was a subject of discussion. It records:
19 November appeal needs to be on by
On the basis of this I am satisfied that both the applicant and his lawyer appreciated what the statutory deadline for seeking a reconsideration was. This conclusion is confirmed by an email sent on 9 November 2016 when the applicant advised Stacks:
I had a conversation with my ex-wife and we decided to go ahead in both directions that we discussed, even understanding that our initial payments for you submission to Swire won’t be recovered…
Still we will follow your advice and further instructions along the way and I hope that we will be able to recover entitled funds from our LIV Superannuation Trust (SMSF) and claim TDS insurance cover on the basis of chronic/permanent impairment and inability to work due to my injuries…At least we can have a “life line” for ongoing living expenses and go through main litigation against the employer without catastrophic losses…
As far as direct legal action against Swire/Chevron concern, we also would like you to proceed as we agreed last week…
I remember you mentioned about some time constraints in relation to our response/submission to Swire…
I would imagine that you are busy preparing certain documents, so please just update me on coming actions and instructions for me, inasmuch as you know I will be admitted soon to the POWP Hospital for neuropathic black and ketamin treatment for a week.
I am satisfied that the time constraints the applicant refers to is the 30-day time limit mentioned in section 78(3)(b) and that the applicant’s expectation was that Stacks would prepare a submission to the respondent seeking a review of the adverse determination of 19 October 2016.
While the applicant was imagining that his lawyer at Stacks was busy preparing the relevant documents, it appears that, despite his instructions, that was not what was occurring. Based on the material available to me (which I note is not the complete Stacks file) the first step taken by Stacks was to write to the respondent advising it that Stacks had been ‘instructed to dispute’ the decision of 19 October 2016. Stacks noted the deadline for doing so and sought an extension of that deadline to 11 December 2016.
On 16 November 2016 the applicant wrote again to Stacks. The applicant’s email included the following:
Ryan, it has been a few very anxious days for us, as without any instructions it like hanging yourself in “the air”…and I can imagine that you may busy as well as preparing critical data for our submission…? As I confirmed in previous e-mail below, we agree to act in two directions and will follow your instructions and if you need us to sign certain documents or give our OK to access any personal info and history, just send to us and will revert back everything signed!
…
So, as you mentioned last time, it is very important to fit our response before formal time set legally for this appeal…
I have accumulated new expenses since then and it is more than $2000…
I will see Dr Alex Pilsky, Forensic Psychiatrist today at 13.00pm, we will talk about my hospitalisation and whether we need to reshuffle or change my medication…
Ryan could you please let me know where we are up to and any instructions for me, my psychiatric state is rapidly going down, so my current medication is no longer that effective…Some certainty will at least keep me in life and cope with reality…
Many thanks and waiting for your guidance.
The action taken by Stacks following this prompt (noting again that I do not have access to the complete file) was to write to the respondent’s lawyers advising them of their client’s intention to seek a formal reconsideration of the determination dated 19 October 2016 and seeking an extension of time to do so until 25 January 2017. On 11 January 2017 the respondent’s lawyers responded advising that their client was prepared to grant a final extension of time to 25 January 2017.
No request for a reconsideration of the determination was submitted by Stacks - before or after 25 January 2017, or ever.
On 20 April 2017 Stacks advised the applicant that the lawyer who had previously had carriage of the matter had resigned from the firm effective 20 April 2017 and that the file would be handled by a new solicitor. Mr Zablotsky was advised of the new number that he could contact the solicitor on but was not given any indication as to when he should expect to hear from Stacks.
Stacks wrote to the applicant in June 2017 seeking information which appears to be relevant to the pursuit of the applicant’s insurance claim. The applicant responded referring to knee surgery which he had undergone in March 2017 and a likely admission to hospital to have a ketamine treatment to deal with his chronic pain. It was clear at that point that he had not met his new solicitor.
By July 2017 the applicant’s insurance claim was progressing and he was dealing with Stacks regularly in relation to it.
I am satisfied that at some point in mid-July 2017 the topic of the applicant’s claim against the respondent came up and some limited strategic advice was given in relation to the claim by Stacks. The advice was that any progressing of the claim against the respondent should wait until the insurance claim was resolved.
I base this finding on the following correspondence from the applicant to Stacks sent on 17 July 2017:
Yes, Cali [the first name of his solicitor]…totally agree on your strategy…first is TPD Insurance, to give my family some breathing and reduce mortgage and then will have a chat about my employer’s liability…
I am satisfied that at that point in time, based on advice from his lawyers, the applicant decided not to pursue timely reconsideration of his claim against the respondent. I am also satisfied that he did so without any conscious awareness that he was simply ignoring a statutory deadline. While I am satisfied that the applicant was aware of the statutory deadline and its importance in November 2016, by the time he gave instructions to Stacks in July 2017, he had forgotten about the statutory deadline or did not appreciate the significant risk that he was taking by further delaying engagement with the respondent about its 2016 determination. I have formed this view on the basis that at no point in the correspondence that I have seen and in the evidence that the applicant gave to the Tribunal, did he ever evince a willingness or desire not to pursue his claim otherwise than in full conformity with legal requirements. I am satisfied that the applicant would only have instructed his lawyers to defer pursuit of his workers’ compensation claim if he had received advice that it was appropriate to do that.
On 11 August 2017 the applicant was admitted to hospital for further treatment of his chronic pain including ketamine infusion therapy.
The applicant wrote again to his lawyers on 6 December 2017. His primary concern was delay in resolution of his insurance claim. However, he also noted:
My TPD claim payout is not really significant and will [not] solve all disasters associated with my disabilities…with TPD payout I can only almost cover my mortgage…almost, but not completely…and by the way, last two years I have been continuously cover my medical and living expenses from my mortgage offset account…!...diminishing my emergency “life-line” and critically increasing my mortgage re-payments…
So, TPD is just our first step for a reason, this was our initial strategy as discussed last year with Ian and Ryan…
My forced retirement and TPD Claim should significantly assist us in our main action against my employers: Chevron and Swires…Our main efforts then will be focused on my employers ‘breach of Duty of Care” under the Law and our EBA, under the Code of Conduct and Code of Practice…
This confirms that at this point in time the applicant was confused about the nature of any claim he had against Swire Pacific. In November 2016 it was clear that his instructions were to pursue review of the workers’ compensation decision made on 19 October 2016. After the passage of 12 months the applicant had lost track of what the appropriate next steps were and the nature of any claim.
To the extent that this email might be understood to suggest that advice was given by ‘Ian and Ryan’ in 2016 to the effect that the workers’ compensation payment should not be pursued until the insurance claim has been resolved, I am satisfied that the applicant is misremembering what he was told. It is clear from Stacks’ actions in late December 2016 that it understood that action needed to be taken in relation to the review of the workers’ compensation decision and it was instructed to effect such a strategy. There is no other evidence apart from this December 2017 email that suggests the conscious adoption of a strategy in late 2016 or early 2017 to pursue the insurance claim first before turning attention to a common law claim. I am satisfied that a strategy to pursue the insurance claim first and delay seeking review of the workers’ compensation decision was not adopted by the applicant until July 2017 and was only adopted by the applicant as a consequence of advice from his lawyers.
In April 2018 Stacks briefed counsel in relation to the applicant’s claim. In the observations to counsel the following history was recorded:
Mr Zablotsky came to Stacks Goudkamp seeking advice regarding his injury on 4 November 2015. Following the declinature of his claim, Mr Ryan Brown, then Associate of Stacks Goudkamp, requested an extension of time to submit a formal request for reconsideration of the determination, which was granted to late January 2017. Unfortunately, there seems to be no further correspondence in this respect.
My instructions when I was allocated this file in or about April 2017 were that the client was pursuing a TPD claim, and once that resolved, that he wishes to return to investigations into his workers compensation claim.
This raises the possibility that at some point in early 2017 the applicant gave instructions to his lawyers to cease pursuit of the workers’ compensation claim and focus exclusively on the insurance claim. I am not willing to make that finding for a number of reasons. First, it is contrary to the tenor of the applicant’s correspondence with Stacks in late 2016. Second, neither party has directed me to any file notes or correspondence which record such a change of strategy. If a firm were instructed to adopt a strategy which involved ignoring a statutory deadline in a context where the overall instructions were to pursue the employer, I am confident that the instructions would be formally recorded and confirmed to guard against any future claim of negligence. Both parties have had access to the Stacks file and nothing of that nature was found by either party in the file. Third, it is clear that the Stacks solicitor who prepared the brief could not explain the change in strategy by reference to any client instructions recorded in the file – only by reference to her understanding of her instructions when she was given the file 12 months prior. Fourth, it is inconsistent with the tenor of the applicant’s email dated 17 July 2017 to Stacks which states:
Yes, Cali…totally agree on your strategy…first is TPD insurance….
The email conveys the distinct impression that the applicant is agreeing to a new strategy proposed by his then lawyer. If a strategy had been in place for many months to give priority to an insurance claim with deferred consideration of the workers compensation claim, it would be unnecessary to agree to that strategy in an email in July 2017, and it would be inappropriate to regard it, and refer to it, as Cali’s strategy.
Following the briefing of counsel in April 2018, the applicant and his solicitor met with counsel to discuss the way in which the workers’ compensation aspects of his claim should proceed. On 24 April 2018 Stacks, after noting the failure to seek reconsideration within the required time, advised that they and counsel:
…believe that the best way forwards is to submit a new claim, for all injuries this time, as the initial claim was only made for plantar fasciitis.
It appears that the applicant accepted that advice and must have communicated that promptly because on the same day, Stacks sought a copy of the applicant’s workers compensation file from the respondent’s representatives.
On 3 May 2018 the applicant received a significant payment in relation to his insurance claim.
On 17 May 2018 the respondent’s representative advised Stacks that any request for review was out of time and that the applicant’s workers compensation file would not be supplied. On 21 May 2018 Stacks advised the applicant of the respondent’s response and that it would be in his interests to lodge a fresh claim. Stacks stated in its letter:
Information concerning your injuries and treatment past [December 2016] will be available through your treating doctor’s records, which I have also requested and await receipt of.
I will keep you updated as to the progress of your claim.
On 15 June 2018 the applicant sought clarification from Stacks concerning whether he was expected to fill out a fresh claim form by himself. He also indicated that he was just about to have further hospital treatment to deal with his chronic pain. Stacks indicated it would give him advice on what to do next. The applicant responded on 27 June 2018 concluding with the statement ‘I will be waiting for your instructions and your advice on our next steps…’ Stacks appear to have passed on additional documents to counsel for further advice.
It appears from the material available to me that there was no further contact between the applicant and Stacks until November 2018 when the applicant touched base with Stacks again. In the five months between June and November 2018 there appeared to be no progress on the making of a fresh claim or on seeking review of the earlier determination. There does not appear to have been any delay on the part of the applicant in giving instructions when they were requested.
In February 2019 the applicant began a search for new solicitors. In April 2019 the applicant met with a solicitor from the firm which currently represents him, McNally Jones and Staff. On 10 May 2019 the applicant’s new lawyers sent a letter to the respondent’s lawyers seeking an extension of time to request a reconsideration of the determination of 19 October 2016. The letter specifically requested that the respondent issue a formal determination with respect to the applicant’s request for a further extension of time.
On 4 June 2019 that request was formally declined. It is that decision which is the subject of review in these proceedings.
On 4 July 2019 the applicant lodged an application for review of that decision in the Tribunal.
Two subsequent claims for compensation associated with the injury suffered in November 2015 were lodged with the respondent. Both eventually became the subject of applications to the Tribunal.
The first claim related to the following conditions:
(a)Complex regional pain syndrome (CRPS);
(b)Post-traumatic stress disorder (PTSD); and
(c)‘left knee injuries’.
It ultimately became the subject of application number 2020/3658.
The second claim related to the following secondary conditions:
(a)Major depressive disorder;
(b)Meniscus damage to the right knee;
(c)Aggravation of degenerative changes to the lower back and neck; and
(d)Rotator cuff injury and aggravation of degenerative changes to the right shoulder.
It ultimately became the subject of application number 2021/6273.
Following the making of those claims the following further medical reports have been obtained by the applicant and the respondent:
(a)Medical report of Dr Ron Lawford (Consultant Rheumatologist) dated 30 September 2020;
(b)Two medical reports of Dr Doron Samuell (Psychiatrist) dated 27 October 2020 and 25 May 2022;
(c)Medical report of Dr Peter Yu (Occupational Physician) dated 7 October 2020;
(d)Medical report of Dr Samson Roberts (Consultant Forensic Psychiatrist) dated 20 December 2020;
(e)Medical report of Dr James Bodel (Orthopaedic Surgeon) dated 14 August 2020;
(f)Medical report of Dr K E Khor (Consultant in Anaesthesia and Pain Management) dated 29 March 2021;
(g)Medical report of Dr Alex Pilsky (Consultant Psychiatrist) dated 6 April 2021;
(h)Medical report of Associate Professor Paul Miniter (Orthopaedic Surgeon) dated 31 January 2022;
(i)Medical report of Associate Professor Jennifer Batchelor (Clinical Neuropsychologist) dated 29 April 2022;
(j)Two medical reports of Dr Graham Hall (Occupational Physician) dated 4 September 2022 and 21 September 2022;
(k)Medical report of Dr Ivan Popoff (Orthopaedic Surgeon) dated 22 May 2022; and
(l)Medical report of Dr David Broe (Orthopaedic Surgeon) dated 14 June 2022.
In broad terms, the central issue in dispute in both the 2020 and 2021 applications (and the 2019 claim if an extension of time is given and the respondent affirms its earlier determination) is whether the applicant’s presentation to his doctors is genuine. The applicant continues to be treated by his doctors for what they assess as serious medical conditions. Those treatments involve hospitalisation and, at times, significant side effects from treatment. On the other hand, the respondent has assembled a significant amount of evidence which suggests at the very least that the applicant is exaggerating his symptoms or feigning them altogether.
There is disagreement between the parties as to what should happen to the 2020 and 2021 applications in the event that an extension of time is refused in these proceedings.
It is against this factual background that the applicant’s claim must be considered.
Legal Framework
The discretion which section 78(3)(b) confers is as unconfined a discretion as it is within the capacity of the Parliament to confer. To the extent that there is any limitation on the matters which are relevant to the exercise of the discretion they come from the scope and purpose of the Seafarers Act. The paragraph provides for reconsiderations to be requested ‘within such further period (if any) as the employer, either before or after the end of that 30-day period, allows’.
The Tribunal stands in the shoes of the employer and can decide to allow a further period. Whether it should do so is the only subject of the current application.
It has become usual in applications of this kind to structure the exercise of the discretion by reference to the factors which were articulated in Hunter Valley Developments Pty Ltd & Ors v Cohen (Hunter Valley).[5] The discretion under consideration in that case was conferred under a different statute, was conferred on a court and involved judicial review proceedings rather than extending time to conduct an internal merits review. Accordingly, a slavish application of the factors identified in that case is not appropriate. However, depending on the facts of the case, many of the factors identified will be appropriate to consider, especially when, as in this case, the parties have used the framework in developing their submissions to the Tribunal.
[5] (1984) 3 FCR 344.
A recent decision by Member Frost provided a helpful summary of how the law on this discretion has developed:[6]
[6] Turner and Comcare [2021] AATA 2844 at [61]-[63].
61. In Comcare v Willems at [258] the Federal Court of Australia held that, in relation to the question of whether to grant an extension of time to lodge a request for reconsideration of a determination, regard should be had to: the cause of, and the explanation for, the delay in the relevant party submitting the request; the relevant party’s conduct in this delay; and the consequences to the other party of the delay. The merits of the substantive request are also a relevant consideration when a determination is being made on the extension question. It has also been stated that a person seeking an extension of time ‘must place material before the Tribunal to justify the exercise of the discretion in his or her favour’.
62. The often quoted case of Hunter Valley Developments Pty Ltd & Ors v Minister of Home Affairs and Environment (1984) 3 FCR 344 set out principles to be considered in an application for an extension of time… The principles underwent ‘some modification’ in Comcare v A’Hearn [1993] FCA 498 and these were subsequently set out by the then Federal Magistrates Court in Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109 (Phillips), as follows:
In the light of A’Hearn’s case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it’s fair and equitable in the circumstances to extend time. In the light of the decision in Ahearn’s case it is useful to set out in modified form the relevant principles in relation to the exercise of the Court’s discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows:
1. There is no onus of proof upon an applicant for an extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The “prescribed period” of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at 550).
2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A’Hearn [1993] FCA 498 and Dix v Client Compensation Tribunal [1993] Vic Rp 21; (1993) 1 VR 297 at 302).
3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised (See Doyle v Chief of Staff [1982] FCA 124).
4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay is a material factor militating against the grant of an extension (See Doyle at p 287);
5. The mere absence of prejudice is not enough to justify the grant of an extension (See Lucic at p 416)
6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted (See Lucic at p 417)
7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528).
63. The principles regarding extension of time applications enunciated in Phillips were endorsed in Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 and have been referred to and endorsed in numerous Tribunal decisions.
This is a useful summary, however it is important to keep in mind that what is being exercised here is an unstructured statutory discretion conferred by the Parliament on the Tribunal. There are no mandatory relevant considerations and the Tribunal, having considered the parties’ submissions, is not legally obliged to place weight on any factor urged by either party as relevant.[7] The Tribunal has significantly more freedom in the exercise of the discretion than the discussions of the discretion in related cases would suggest. In terms of legal rules which affirmatively bind the Tribunal there are perhaps only two. The first is that it would involve legal error to attribute to a party the poor conduct of its lawyers as providing a reason for refusing that party an extension of time.[8] Second, the applicant must put before the Tribunal sufficient material to affirmatively satisfy the Tribunal that the discretion should be exercised in the applicant’s favour.[9]
[7] See the High Court’s recent analysis in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17.
[8] Comcare v A’Hearn (1993) 45 FCR 441.
[9] Ralkon v Aboriginal Development Commission [1982] FCA 153.
Having said that, the factors outlined in the authorities provide a useful framework for analysis which points the Tribunal towards many relevant matters which will bear on the exercise of the discretion. For that reason, I have largely adopted it in considering the exercise of the discretion in this case.
The other important issue to be aware of in the exercise of the discretion is that when it comes to a consideration of the merits of an application, it is not appropriate to investigate too thoroughly the absolute merits of the case. In Arbon and Comcare, SM Britten-Jones (as he then was) summarised the issue in the following terms:[10]
[10] [2017] AATA 2870 at [5]-[7].
In terms of an assessment of the merits of the case French J (as his Honour then was) observed in Seiler v Minister for Immigration, Local Government and Ethnic Affairs that:
... To say a substantive application has a reasonable prospect of success is to say no more than that there is a finite non-trivial probability that it will succeed....It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused. So a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it...
As to the required extent of investigation into the merits Katzmann J said in Actew AGL Distribution v Australian Energy Regulator that:
... it is inappropriate for this purpose to fully investigate the merits, although an obvious strength or weakness in the applicant’s case is a factor for or against the exercise of the discretion. ...
Further, Besanko J said in Hamden v Secretary, Department of Human Services:
As far as the merits of the substantive application are concerned, it is not for the Court to determine the application at this stage. However, an extension of time should not be granted if the substantive application is not reasonably arguable. Furthermore, if the prospects of success of a substantive application are plainly strong or plainly weak, then that may be a relevant consideration depending on the nature of the other factors (for example, the period of the delay and the explanation for it) relevant to the application for an extension of time.
Consideration
Explanation for delay
The starting point is that the Seafarers Act has specified a time limit for the making of a request for review of a determination and that should be observed. The time limit is 30 days. It is now more than six and a half years since that time limit expired and nothing substantive was done between January 2016 and 10 May 2019 to progress either the extension of time request or to seek substantive review of the decision.
The Parliament in setting a short default period to seek review has evinced an expectation that disputes about workers’ compensation entitlements will be notified and progressed quickly. Granting an extension which now would be more than six and a half years is contrary to that expectation. The entertainment of extensions of the magnitude which the applicant is seeking has the potential to undermine the system of prompt dispute resolution which the Parliament has provided for in many aspects of the Seafarers Act. It would only be in the rarest of cases that an extension of the size which the applicant now seeks would be considered appropriate.
Consequently, it is necessary to consider carefully why there has been so much delay. The delays in this matter fall into four categories. First, the period between November 2016 and the expiry of the request for an extension to seek review on 25 January 2016. To that point the applicant’s conduct was beyond reproach. He had retained lawyers for the purposes of seeking review of the decision, met with the lawyers promptly to give instructions as to what he wished to do, and provided those lawyers with the necessary resources to progress the matter. Equally in this period the applicant’s lawyers behaved appropriately. Requests for extensions of time were made and granted and the matter looked to be in hand.
The second period of interest runs from January 2017 to July 2017. In this period of time nothing was done by the applicant’s solicitors to progress the matter. I am not satisfied that the dereliction was the consequence of any instructions from the applicant. Indeed, what evidence there is points in the other direction. The applicant does not recall giving instructions to delay proceeding with the request for review and I am satisfied that he did not give those instructions. If criticism can be levelled at the applicant, it is that he was aware that there was a statutory deadline and failed to press his lawyers on this issue. That would have been desirable. However, in circumstances where the applicant was undergoing treatment for various conditions and was clearly reliant upon his lawyers’ diligence and expertise, I am not prepared to treat his failure to press his lawyers to do more as a matter that counts against him insofar as the exercise of the discretion is concerned.
The next period of relevance is between July 2017 and April 2018 when Stacks clearly held instructions not to press the workers’ compensation matter pending resolution of the applicant’s insurance claim. There is evidence that those instructions were given, but little evidence about the advice which accompanied the decision. If it were the case that Stacks advised the applicant that it would be best if he simply ignored the statutory deadline provided for in the Seafarers Act and returned to agitation of the claim only when he was in a better financial position to obtain evidence to support the claim, and he agreed to proceed on that basis, the failure to advance the claim in this period would count strongly against the exercise of the discretion. However, I have no confidence that Stacks gave advice in those terms or ever made it clear to the applicant that by focussing on his insurance claim, the applicant was endangering his ability to progress the claim against his employer. In my assessment the applicant was not consciously ignoring the statutory deadline, he was following advice which did not properly remind him of the requirements of the statute. While the failure by Stacks to progress the applicant’s claim in this period was supported by instructions from the applicant, I am not satisfied that the applicant was conscious of the risks he was taking or the flagrant disregard of statutory requirements which the conduct involved.
The next relevant period is from April 2018 until May 2019, which covers the period when Stacks held instructions to progress the applicant’s workers’ compensation claim but failed to progress it in any meaningful way. The delay in this period was not as a consequence of any failure of diligence on the part of the applicant, but failure on the part of his lawyers to resolutely pursue his claim. Delay in this period does not count against the applicant.
When the applicant’s new lawyers were engaged, the matter progressed quickly from a request for a further extension of time to an application to the Tribunal. Regrettably the application became bogged down in the Tribunal system, delayed apparently by the confusion sown by the further applications for review being made in 2020 and 2021. The fact that an application for an extension of time which was heard in one day took four years to get to hearing does not reflect well on any of those involved (including the Tribunal).
None of this delay is the responsibility of the applicant and is not relevant to any consideration of the merits of granting an extension of time to request reconsideration.
In my assessment, the delay in requesting reconsideration can for the most part be laid at the feet of Stacks. The applicant early on was a keen agitator for the timely seeking of review. Despite this agitation nothing was done by his lawyers. The delay which followed is attributable to Stacks inaction in early 2017 followed by poor strategic advice given in mid- 2017 and failure to pursue the claims they were instructed to pursue (post-April 2018). In such circumstances I consider that the applicant has a reasonable explanation for delay and that he was largely not responsible for it.
Resting on his rights and prejudice
The respondent was placed on notice of the applicant’s intention to challenge the determination in November 2016. Until January 2017 the respondent must have proceeded on the basis that the determination would be challenged. From January 2017 until April 2018 when Stacks requested the applicant’s workers’ compensation file, the respondent would not have appreciated that the applicant wished to pursue the claim. A gap of that period does have potential to cause prejudice.
In the present case, the prejudice is perhaps smaller than it might otherwise have been. The claim was thoroughly investigated in 2016 by the respondent and so by the time it made its decision on 19 October 2016 it had already assembled a significant amount of material to support its conclusion that the applicant’s injuries had resolved by October 2016. Furthermore, in the period from 2016, the applicant continued to undergo extensive treatment which is well documented in the medical reports which the parties have now obtained. Accordingly, there is a significant amount of evidence which records the symptoms that the applicant was reporting in the period when the respondent was unaware that he intended to pursue reconsideration.
I am satisfied that the respondent has suffered some prejudice as a result of it thinking between January 2017 and April 2018 that the claim had been resolved, but the prejudice is quite small.
The prejudice which the respondent may have suffered as a result of delay shrinks further when the question is considered in the context of the 2020 and 2021 applications.
Those applications relate to secondary injuries which the applicant claims developed as a consequence of his plantar fasciitis injury. The applications cover decisions rejecting initial liability, but it is likely that if those claims succeed that compensation for incapacity and medical treatment will be made dating back to 2016.
Consequently, if the respondent must confront the same factual and legal questions which arise from the claim the subject of this application in the context of the later claims, it is hard to identify any real prejudice in allowing this claim to also be dealt with by the respondent and (perhaps) ultimately the Tribunal. Accordingly, it is necessary to consider briefly whether that is what is likely to occur.
In this context the real question is whether, if the application for an extension of time is refused, the respondent will avoid the need to confront the applicant’s claims that his injury in 2015 had incapacitating sequelae which persist to this day. In the particular legal environment in which the Tribunal operates, it is hard to see that it will.
The first point to be made is that there is no issue estoppel in the Tribunal. The fact that the respondent has determined that the applicant’s injury resolved in 2016 and ceased to cause incapacity or the need for medical treatment does not bind the Tribunal. Indeed, even if the Tribunal had made an earlier decision to that effect, it would not be bound by such a finding. The Full Court of the Federal Court made that clear in Commonwealth of Australia v Snell[11] (Snell) when it said, ‘the Tribunal stands in the stead of the employer and is invested with power to reconsider any prior decision which it made in relation to the employee’.[12]
[11] (2019) 269 FCR 18
[12] ibid at [69].
The proper approach was outlined in the introductory remarks of the Full Court:[13]
In reaching its conclusion not to allow the issue of whether Mr Snell’s employment as a seafarer contributed to his present condition to be re-litigated, the Tribunal applied a principle which it regarded as being analogous to issue estoppel. In the application of that principle, it imposed upon the Commonwealth the obligation of establishing some good reason why the causation issue should be reconsidered.
The principle applied was inappropriately restrictive given the scheme of the AAT Act and the Seafarers Act, in particular s 43(6) and s 78 of those Acts, respectively. The scheme of the legislation is to provide for the administration of claims, including the review of determinations by the Tribunal, including where appropriate the reconsideration of earlier determinations. No principle of issue estoppel or some cognate procedural rule of approach, taken from procedure and principle governing final hearings of judicial or quasi-judicial tribunals, should restrict what is to be drawn from the statute: a progressive and evolving decision-making giving effect to the ongoing review of entitlements including, where appropriate, the review of earlier determinations. Where, as here, material is brought forward in an apparently genuine way that may lead to a reconsideration of an earlier determination as incorrect, it would be wrong to prevent the consideration of factual matters relevant to the making of the preferable decision by reference to such a principle drawn from judicial or quasi-judicial hearings the purpose of which is the determination of matters finally.
[13] Ibid at [3]-[4].
If an extension is not granted in relation to the decision of 19 October 2016, it seems more than arguable that the applicant would be entitled to proceed to have the Tribunal review the other two substantive decisions which the respondent has co-operated in bringing to the Tribunal and which are the subject of the 2020 and 2021 applications. The review of those decisions will not be constrained by any notion of issue estoppel and the Tribunal will be free to consider the relationship between the applicant’s claimed conditions and the plantar fasciitis which emerged in 2015. Any medical conclusions about the cause of the applicant’s original plantar fasciitis drawn in relation to the later applications are likely to be relevant to those claims. Resolution of review of the earliest claim is not a pre-condition to dealing with the later claims, nor does a failure to review the 2016 determination constrain the capacity of the Tribunal to re-visit findings in relation to the original claim in the context of the subsequent claims.
The Full Court decision Telstra v Hannaford [2006] FCAFC 87 makes clear at [59] that the Tribunal is empowered to ‘make findings of fact that effectively undercut the necessary findings of fact’ made in a different administrative decision, and to do so ‘in circumstances where [the respondent’s] s 14 decision remained in force to the extent that it had not been actually reversed, and not been the subject of any adverse review per se by the AAT.’ Accordingly, it seems almost inevitable that the respondent will be obliged to confront the applicant’s claims of a relationship between his plantar fasciitis and his ongoing symptoms in the other applications before the Tribunal. In these circumstances, it is difficult to identify significant prejudice.
For the respondent, the only practical way of turning the unchallenged 2016 decision to any advantage is if it could be used as the foundation for an application to have the 2020 and 2021 applications dismissed as abuses of process under section 42B of the Administrative Appeals Tribunal Act 1975 (AAT Act). If the applicant was guilty of making repetitious claims on substantially the same facts thus requiring the Tribunal to review the rejection of those claims, then such an application would have prospects.[14] However, in the present circumstances the applicant has never had the fundamental factual and legal questions that arise in this matter considered by the Tribunal and so there is no obvious foundation for disposing of them on that basis.
[14] See in particular Snell at [78].
In these circumstances, I am satisfied that even if the respondent were successful in this application, it will ultimately have to confront in the other applications in the Tribunal the questions of fact and law which arise in the present application and so there is little in the way of identifiable prejudice to it in the granting of an extension of time.
Merits
The application clearly has merit in the sense that the material before me discloses an arguable case. If the evidence of the applicant’s treating specialists is accepted, then he has suffered significant ongoing effects from his original injury in 2015. The initial injury may have led to a complex regional pain syndrome and depression and may have been accompanied by an injury to the applicant’s knee. Such conclusions are supported by credible medical evidence. The respondent has medical evidence in response which paints a quite different picture. Resolving the questions which arise is likely to require the Tribunal to conduct a hearing. In these circumstances, where the case is arguable, this consideration weighs in favour of the granting of an extension of time.
Fairness
While there is value in the consistent application of time limits, I do not consider that it is unfair for the applicant, who took immediate but unsuccessful steps to challenge a decision which he vehemently disagreed with, to be given an opportunity to seek review of the respondent’s adverse decision. In the highly unusual circumstances of this case, where a determined applicant’s timely steps to seek review were ultimately frustrated by his own lawyers, I do not see it as unfair to others to allow the claim to proceed. This factor weighs in favour of granting an extension.
Summary
In the circumstances of this case, I am satisfied that I should allow the applicant until 14 July 2023 to request reconsideration of the respondent’s decision of 19 October 2016. I reach this conclusion because I am satisfied that his claim is arguable, and I am satisfied that he took early and genuine steps to have the determination reconsidered. Those steps were frustrated initially by inaction on the part of his lawyers and ultimately because he was persuaded to follow a misguided strategy proposed by his lawyers. The respondent can perhaps feel hard done by given the ultimate length of the delay, but I am satisfied that it has suffered little practical prejudice in terms of its ability to meet the claim.
For these reasons I exercise my discretion to set aside the decision under review and allow the applicant until 14 July 2023 to seek a review of the respondent’s decision of 19 October 2016.
Costs
The applicant has also sought an order for costs.
I am satisfied that I have a discretion to award costs in the present matter.
Section 92(1) of the AAT Act provides:
If, in any proceeding instituted by the claimant, the AAT makes a decision:
(a)varying a reviewable decision in a manner favourable to the claimant; or
(b)setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision;
the AAT may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, are to be paid by the employer.
I am also satisfied, as the applicant contends, that the absolute bar on the award of costs found in subsection 92(3) only applies to cases where the extension of time sought by an applicant relates to the time limit for applying to the Tribunal. The decision which is the subject of review in the present matter concerns a refusal of an extension to seek a reconsideration of a determination made by the employer.
Accordingly, there is no statutory bar on the awarding of costs, and I have a discretion to make such an award in the present case.
The applicant’s position is that where an applicant is successful in persuading the Tribunal that an extension of time should be granted, it is difficult to see why the discretion to award costs should not be invoked, as it would be where an applicant is successful in challenging any other aspect of a reviewable decision. There is support for this approach in a previous decision of the Tribunal.[15]
[15] Bernobich and Novion Property Group [2016] AATA 92 (Bernobich) at [66].
The respondent contends:
(a)That both parties agreed that it was expedient to have the extension of time issue litigated initially before proceeding to a full hearing and the potential exposure of both parties to the costs of assembling a large number of expert medical witnesses;
(b)That the Act clearly indicates an intention that costs should not be awarded in respect of extension of time applications in regards to Tribunal applications (see s.92(3)); and
(c)The proper course is that in the event that the applicant is successful in all or any of his substantive applications, then he will be entitled to his costs in respect of this extension of time application.
Dealing with the respondent’s submissions first, I am not persuaded that very much can be inferred from the existence of subsection 92(3). The Parliament identified a circumstance in which no costs order could be made while leaving it to the discretion of the Tribunal whether to award costs in relation to applications of this kind. There is in my view no presumption about how the discretion should be exercised where an extension of time application is involved which is not covered by subsection (3).
Equally, I am not persuaded that the proper course is to put off the question of costs in relation to the extension of time application until the merits of associated substantive applications are determined. The merits of the applicant’s decision to seek an extension of time to seek review of the respondent’s original determination are separate from the underlying merits of the related claims. The parties agreed to have the extension of time dealt with separately and the making of this decision disposes of the application made to the Tribunal. The proceedings should not be treated as if they were merely a motion within some larger claim. That is not the character of the application. In those circumstances I consider it appropriate to decide the question of costs rather than defer.
I am however conscious that the question of costs was not fully argued at the hearing and that until my factual findings were made it was not possible for the parties to make meaningful submissions on the question. For that reason, I will not make a final decision on the question of costs at this stage.
At present I am inclined to make a costs order in favour of the applicant in the following terms:
(a)The respondent pay the applicant’s reasonable party/party costs incurred in relation to proceedings 2019/3987 on and after 1 June 2023.
Prior to that, it was reasonable for the respondent to take the view that the applicant was well out of time and it was appropriate to test the factual claims made about the cause of delay, particularly in a context where the matter was tied up with two other substantive claims which were proceeding towards substantive hearings. On and from 1 June 2023 however, when the extension of time application was separately listed and the costs associated with testing the factual issues could no longer be absorbed in a hearing about questions of the broader merits of the claim, it should have been apparent on the material available to the respondent, that it was likely that the applicant’s application would succeed.
I will however not make that order for fourteen days. If either party wishes to be heard further on the question of costs, they should contact my associate prior to me making that order and provide a timetable (agreed or otherwise) for further argument on the question of costs.
I certify that the preceding 115 (one hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member O'Donovan
....................................[sgd]....................................
Associate
Dated: 21 June 2023
Date(s) of hearing: 7 June 2023 Date final submissions received: 12 June 2023 Counsel for the Applicant: Mr Leo Grey Solicitors for the Applicant: McNally Jones Staff Lawyers Counsel for the Respondent: Mr Charles Clark Solicitors for the Respondent: Sparke Helmore
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