PRACTICE AND PROCEDURE - extension of time - extension granted previously - whether reasonable to grant second extension - delay on part of solicitor - whether applicant rested on his rights - whether prejudice to respondent - extension of time refused

Administrative Appeals Tribunal Act 1975

Safety, Rehabilitation and Compensation Act 1988

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 139 ALR 1

Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540

Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441

Grundy and Comcare [2006] AATA 1019

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Lukic v Nolan (1982) [1982] FCA 217; 45 ALR 411

Phillips v Australian Girls' Choir Pty Ltd and Anor [2001] FMCA 109

Zanbergs and Commonwealth Bank of Australia [2014] AATA 866

1. This matter concerns an application for an extension of time in which to lodge an application for review of a decision made by on the respondent's behalf on 31 March 2014.
2. The applicant, Patrick Crick, sustained an injury to his lower back on 28 March 2012. The respondent, through its insurer, accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) to compensate him for his injury.
3. On 31 March 2014, the respondent's insurer issued a determination that Mr Crick had no present entitlement to compensation in relation to the accepted condition. The decision was sent to Mr Crick, care of his legal representatives, Carroll and O'Dea Lawyers.
4. On 2 April 2014, the respondent accepted liability to compensate Mr Crick for an aggravation injury to his lower back sustained on 24 January 2014. Liability was accepted for a closed period from the date of injury to 2 April 2014. That determination has not been challenged and is not relevant to the present proceedings.
5. On 10 November 2014, Mr Crick, through his legal representatives, sought an extension of time in order to seek review of the decision made on 31 March 2014. The reasons for the delay in seeking review are not apparent from the material before me, but the respondent did not oppose the extension of time. On 26 November 2014, the Administrative Appeals Tribunal, differently constituted, granted Mr Crick an extension of time to 28 November 2014 in which to file his application.
6. From the Tribunal's point of view, nothing further happened until 16 March 2016 when a second application for an extension of time to lodge an application for review was made.
7. It is common ground that responsibility for the inaction in relation to Mr Crick's application for review lies with his former solicitor who is no longer with Carroll and O'Dea Lawyers.
8. The question in these proceedings is whether the Tribunal should grant Mr Crick the extension of time he seeks. The respondent opposes the application.

1. Ordinarily, an application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the decision is given to the applicant: subsection 29(2)(a) Administrative Appeals Tribunal Act 1975 (AAT Act). Section 65 of the SRC Act modifies s 29(2) by extending the time to 60 days within which an application for review of a determination under that Act must be made: s 65(4).
2. The Tribunal may extend the time for lodging an application if it "is satisfied that it is reasonable in all the circumstances to do so": s 29(7) AAT Act.

1. The principles to be applied in determining an application for an extension of time are well-known. In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Wilcox J said, at [348] and [349], that the principles guiding the exercise of the discretion could be distilled from the authorities as including, "although not in any exhaustive manner":
   • (a) it is the prima facie rule that proceedings commenced outside the prescribed period will not be entertained, and an applicant must show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time;
   • (b) a distinction is to be made between an applicant who has "rested on his rights", allowing the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;
   • (c) any prejudice to the respondent caused by the delay is a material factor militating against granting an extension;
   • (d) the mere absence of prejudice is not enough to justify an extension; the "unsettling of other people" or of established practices is "likely to prove fatal to the application";
   • (e) the merits of the substantial application are properly to be taken into account;
   • (f) "considerations of fairness as between the applicant and other persons" in a similar position are relevant.
2. These principles are not to be applied mechanically. So, for example, an "acceptable explanation for the delay" is not an essential precondition to the exercise of the discretion, although it is to be expected that such an explanation will normally be given: Comcare v A'Hearn (1993) FCA 498; 45 FCR 441.
3. The principles in Hunter Valley Developments have been considered in subsequent cases and expanded on, or modified, according to the particular case. Relevant to these proceedings, in Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 at [18], Cowdroy J cited McGuinness FM in Phillips v Australian Girls' Choir Pty Ltd and Anor [2001] FMCA 109 at [10]:

In the light of A'Hearn's case, it is clear that ... it should not be any longer regarded as law that the inexcusable delay on the part of the 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.

1. 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.

1. In about April 2014, Mr Crick resigned from his employment with the respondent. In May 2014, he moved from New South Wales to Brisbane. In an affidavit submitted in these proceedings, he states that he does not have a clear recollection whether he informed his solicitor that he was moving interstate; he "would hope" that he did, but his "recollection [is] at best is vague".
2. Mr Crick states that, in July 2014, he underwent surgery to his back in Brisbane; he is unsure whether he was in contact with his solicitor leading up to the surgery but, sometime after it, he contacted his solicitor. They met at the solicitor's Sydney office on 5 September 2014 at which time, Mr Crick states: "I was under the impression that my workers compensation claim was still proceeding."
3. On 12 November 2014, the first application for an extension of time was lodged.
4. Carroll and O'Dea Lawyers acknowledge that the failure to lodge a substantive application after the extension was granted lies with Mr Crick's former solicitor. In an affidavit lodged with the Tribunal, the solicitor who now has carriage of the matter states that, by letter dated 12 November 2015, Carroll and O'Dea Lawyers advised clients of the former solicitor that he had resigned and asked them to elect whom they wished to have act for them. This process apparently took some time. On reviewing the file in January 2016 and making enquiries with the Tribunal, the current solicitor learned that the former solicitor had failed to deal with the matter. On 1 February 2016, Carroll and O'Dea Lawyers wrote to Mr Crick asking him to contact them as soon as possible. No response was received. A further letter was sent on 2 March 2016 asking Mr Crick to make urgent contact. He telephoned Carroll and O'Dea on 16 March 2016 and gave instructions to lodge the present application.

1. For Mr Crick, it is acknowledged that the delay in bringing the present application is significant but it is submitted that it was not his fault and he should not be penalised for it. It is submitted that, in circumstances in which responsibility for the delay lies squarely with the gross oversight by his former solicitor, it cannot be said that Mr Crick "rested on his rights".
2. Although Mr Crick states in his affidavit that he was under the impression that his claim was still proceeding, that was in September 2014, before the first application for extension of time was made. In nearly 18 months after the meeting with his former solicitor in September 2014, he took no steps to pursue his claim; he does not appear to have contacted his solicitors to find out if the extension of time was granted; he made no inquiries as to the progress of his claim despite, it appears, hearing nothing from his solicitor in that time. In my view, the respondent was entitled to believe that, for whatever reason, Mr Crick did not wish to pursue his claim.
3. It is submitted for Mr Crick that he could not be expected to know how long proceedings in the Tribunal might take and it should not be held against him that he failed himself to take action. I accept that submission up to a point. I accept that Mr Crick could not be expected to be familiar with Tribunal procedures and that he was entitled, up to a point, to assume that his solicitor had the matter in hand. However, having given instructions to his in September 2014 to lodge the first application for an extension of time, Mr Crick did nothing further until contacted by Carroll and O'Dea Lawyers in early 2016.
4. Delay on the part of a solicitor may be an acceptable explanation for delay: Comcare v A'Hearn (above); and see Grundy and Comcare [2006] AATA 1019. However, it is not enough, in my view, for an applicant simply to rely on inaction on the part of his or her legal representative.
5. In that regard, this case can be distinguished from Grundy (above) in which the extension of time was granted. The Tribunal recorded that the applicant had contacted her solicitor a number of times and he had told her that "everything that needed to be done was done": at [9]. Further, when after some time she became concerned about the delay, she raised her concerns with her psychiatrist who she understood worked as a team with her solicitor, and she was present when the psychiatrist left telephone messages for the solicitor "concerning this issue".
6. In Zanbergs and Commonwealth Bank of Australia [2014] AATA 866, there had been considerable delay on the part of the applicant's solicitors. However, the evidence showed that everything the applicant had done demonstrated, and was consistent with, an intention to proceed. The Tribunal granted the extension of time.
7. Despite his solicitor's inaction, in my view Mr Crick's own inaction tends to weigh against granting the extension.
8. The respondent submits that the delay is such that it would now be prejudiced by the granting of an extension, in particular because Mr Crick has undergone surgery for a second time, making it difficult for the respondent to obtain evidence as to the effects, if any, of his injury before and after surgery.
9. For Mr Crick, it is acknowledged that there may be some "presumptive prejudice" to the respondent on account of the delay. However, it is submitted that medical witnesses could express opinions based on the available reports and scans, and the respondent would not be unduly prejudiced in this regard.
10. Where there is no prejudice to another party, delay will more readily be excused: Grundy v Wattyl Australia Pty Ltd [2002] FCA 1480. On the other hand, the mere absence of prejudice is not, in itself, sufficient to justify the grant of an extension: Lukic v Nolan [1982] FCA 217; (1982) 45 ALR 411. Where "actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period": Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 139 ALR 1.
11. A dispute as to when the effects of a lower back injury ceased inevitably depends heavily on evidence as to the condition of the applicant's back at particular times. I accept that accept that granting the extension would cause the respondent some prejudice in obtaining relevant and reliable evidence.
12. As to the merits of Mr Crick's claim, the respondent refers to a report dated 4 October 2013 from Dr Vidyasagar Casikar, neurosurgeon, and a report dated 26 March 2014 from Dr Jonathan Young, consultant orthopaedic surgeon, both of whom saw Mr Crick for assessment. Dr Casikar considered that Mr Crick was fit to return to pre-injury duties without restrictions. Dr Young thought that the aggravation caused by the workplace injury had "largely ceased" and Mr Crick was fit for normal hours subject to restrictions such as avoiding lifting heavy items from the ground and items over five kilograms. No further medical reports have been obtained by either the applicant or the respondent since.
13. Mr Crick is not required to show that the merits of his claim are strong, and I accept that the reports of Dr Casikar and Dr Young represent incomplete information. It could not be said that his claim has no prospects of success but the reports, which represent the most current information available, weigh against the likelihood of success.

1. Taking into account all of the information before me, I am not satisfied that it is reasonable in all the circumstances to grant the extension of time. In reaching this decision I have taken into account, in particular, the lengthy delay during which there is no evidence that Mr Crick took any steps to follow up his claim with his solicitors, that the respondent will suffer some prejudice should be extension be granted, and that the medical evidence appears to favour the respondent over Mr Crick. There is no doubt that responsibility for the delay rests squarely with Mr Crick's former solicitor but that is not sufficient reason, in my view, to grant the extension.
2. For these reasons the extension of time in which to file an application for review is refused.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

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