(2) However although in an application for extension of time, an explanation for the delay in bringing the substantive application will normally be given, such an explanation is not an essential precondition for the granting of the extension.

Counsel for appellant: R R S Tracey QC and P J Hanks

Solicitors for appellant: Australian Government Solicitor

Counsel for respondent: J T Rush QC and A D B Ingram

BLACK CJ, GRAY AND BURCHETT JJ This is an appeal by Comcare from a judgment of a judge of this Court, Hill J, by which a decision of the Administrative Appeals Tribunal (the Tribunal) constituted by a senior member was set aside and the matter remitted to the Tribunal differently constituted for reconsideration according to law. His Honour also made an order for the payment of the costs of the proceeding before him and this order too is the subject of appeal.

2. The proceeding before the primary judge was an application by way of appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) against a decision of the Tribunal refusing an application by the respondent to this appeal, Mr A'Hearn, for an extension of time to lodge an application to the Tribunal for a review of a decision by Comcare refusing a claim Mr A'Hearn had made under the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth).

3. Section 64(1) of the Commonwealth Employees' Rehabilitation and Compensation Act conferred upon Mr A'Hearn a right to refer to the Tribunal, for review, a decision of Comcare with which he was dissatisfied. Section 65(4) of the Act had the effect that any application for review had to be brought within 60 days of the date on which the applicant was advised of the decision. The latest date upon which proceedings could, without leave, have been commenced before the Administrative Appeals Tribunal was 26 September 1990; but no application was lodged with the Tribunal until 27 February 1992. Section 29(7) of the Administrative Appeals Tribunal Act empowers the Tribunal to extend time. The subsection provides:

"The Tribunal may, upon application in writing by a

person, extend the time for the making by that person of

an application to the Tribunal for a review of a decision

(including a decision made before the commencement of

this section)."

4. As the primary judge observed, it seems that Mr A'Hearn instructed his solicitors initially in September 1989. At that time, a request for reconsideration had been served upon Comcare. The solicitors received a copy of Comcare's decision on 2 August 1990 and received instructions to commence proceedings before the Administrative Appeals Tribunal. Thereafter, the judge noted, there appears to have been gross inaction by the solicitors. The explanation for the gross inaction may lie in various changes in the people handling the case between August 1990 and February 1992.

5. The primary judge also noted that, according to the material before the Tribunal, Mr A'Hearn had made inquiries in February 1992 about the progress of his application, and that it might be inferred he was justified in believing his initial instructions had been complied with. In any event, the February 1992 inquiry produced some action, apparently for the first time, because proceedings were then commenced before the Tribunal seeking an extension of time in which the proposed proceedings could be begun.

6. There was no transcript of the hearing before the Tribunal, and it seems clear that counsel for Mr A'Hearn did not seek to read any affidavit and that no oral evidence was given by Mr A'Hearn or by his solicitors. However, some documentary material was apparently before the Tribunal, which appears to have acted on statements made from the bar table by Mr A'Hearn's counsel. The statements were apparently made from the file of his instructing solicitors, the same solicitors whom Mr A'Hearn had retained to act for him to pursue his claim against Comcare.

7. It seems that counsel for Comcare had no objection to Mr A'Hearn's counsel presenting the facts by way of oral submissions form the bar table, and we observe that there is a provision in the Administrative Appeals Tribunal Act to the effect that the Tribunal is not bound by the rules of evidence: see s 31(1)(c). Although the Tribunal initially gave short oral reasons for dismissing the application, it later gave written reasons for its decision. Those reasons reveal that the competing submissions before the Tribunal were essentially as follows.

8. Counsel for Mr A'Hearn submitted that the delay had been caused by the solicitors and that his client should not be penalised. He also submitted that Mr A'Hearn was not himself at fault and that Comcare had not suffered any prejudice by the delay. Comcare, for its part, placed emphasis upon what the submissions described as the "basic rule", that proceedings not commenced within the prescribed time should not be permitted.

9. The critical passages in the Tribunal's reasons for decision are as follows:

"What is remarkable about this application is that there

was an absence of any evidence either by the Applicant or

his solicitors upon the hearing. Additionally there was a

total absence of any 'acceptable explanation for the

delay' (refer Duff v Freijah ((1982) [1982] FCA 159; 62 FLR 280) and

Lucic v Nolan (1982) 45 ALR 411).

On the one hand, 'delays by a solicitor are visited upon

the client...' (Duff v Freijah at 287) and on the other

'although delays by solicitors are relevant ... there is

ample evidence of the Applicant's total failure to take

any step...' (Lucic v Nolan at 417).

The delay on the part of the solicitors was inexcusable.

From the date of delivery of the reviewable decision they

did no more, it would appear, than arrange medico-legal

examinations (then approximately ten months after the

expiry of time to commence proceedings) and respond to

the Applicant when he consulted them in February 1992.

...

These proceedings were issued some seventeen months after

the expiry of the time permitted and then by a firm of

solicitors instructed by the Applicant well recognised

and prominent in personal injuries litigation. No

acceptable explanation whatsoever was provided either by

the Applicant or the solicitors for the delay."

10. Counsel for Comcare submitted that no error of law is revealed by the Tribunal's reasons and that the decision was a proper exercise of the Tribunal's discretion under s 29(7) of the Administrative Appeals Tribunal Act.

11. In our view, the primary judge was correct in concluding that the reasons for decision reveal an error of law on the part of the Tribunal. The error was that the Tribunal considered that what is found was an inexcusable delay on the part of the solicitors could not constitute an acceptable explanation for the delay in making the application. We consider that this conclusion about the Tribunal's reasoning follows inevitably from the passages to which we have already referred. The Tribunal found positively that the delay on the part of the solicitors was inexcusable and yet, after observing that there was an absence of any evidence, said: "Additionally, there was a total absence of 'ANY ACCEPTABLE EXPLANATION FOR THE DELAY'" (emphasis added). It emphasised this approach in the second last paragraph of its reasons, where it said:

"These proceedings were issued some seventeen months

after the expiry of the time permitted and then by a firm

of solicitors instructed by the Applicant well recognised

and prominent in personal injuries litigation. NO

ACCEPTABLE EXPLANATION WHATSOEVER was provided either by

the Applicant or the solicitors for the delay." (Emphasis

added.)

12. We consider, too, that the following paragraph of the Tribunal's reasons is especially revealing of its approach:

"On the one hand, 'delays by a solicitor are visited upon

the client ...' (Duff v Freijah at 287) and on the other

'although delays by solicitors are relevant ... there is

ample evidence of the Applicant's total failure to take

any step ...' (Lucic v Nolan at 417)."

13. A consistent thread thus revealed in the reasoning is that the Tribunal considered that delays by a solicitor were to be visited upon a client. Thus, despite the inexcusable delay on the solicitors' part that the Tribunal found, it was able to say that there was, "no acceptable explanation whatsoever" for the delay. This approach cannot stand in the light of modern authorities such as less v Scott (1986) 12 FCR 187: see also Lighthouse Philatelics Pty Ltd v Commissioner of Taxation (1991) 32 FCR 148 at 156.

14. In our view, therefore, the primary judge was correct in concluding that the Tribunal's reasons did reveal an error of law and he was correct in deciding that the matter ought to be remitted to the Tribunal for further consideration according to law.

15. We note that the Tribunal used language that might be taken to suggest that it is a pre-condition for success in such an application that an acceptable explanation for the delay must be given. Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential precondition: see Dix v Crimes Compensation Tribunal [1993] VicRp 21; (1993) 1 VR 297 at 302 per Brooking J, with whom Fullagar and Tadgell JJ agreed; cf Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348 and Maric v Comcare (1993)40 FCR 244 at 247-249.

16. Comcare also appeals from the order made against it for costs. This is not the type of case in which costs may be said to be the price to be paid for an indulgence, but rather it is a case where an error of law was sought to be demonstrated, and was demonstrated, and the matter was remitted to the primary decision-maker for reconsideration according to law. In these circumstances, no error has been demonstrated in the approach taken by the learned primary judge to the question of costs. Accordingly, we would dismiss the appeal and would order that the appellant pay the respondent's costs of the appeal.