Administrative Law - Safety Rehabilitation and Compensation Act - practice and procedure - request for reconsideration 11 months out of time - AAT exercised discretion to extend time up to request for reconsideration - whether events subsequent to request for reconsideration relevant to making decision to extend time - delay of 3_ years from making of request - subsequent events did not reveal fraud affecting request - no argument that request abandoned - no estoppel - whether failure to take relevant consideration into account.

Safety Rehabilitation and Compensation Act 1988, s62(3)(b)

Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305

Solicitors for the applicant: Australian Government Solicitor

Solicitors for the respondent: Gary Robb and Associates

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

FINN J The applicant, Comcare, appeals to this Court under the Administrative Appeals Tribunal Act 1975 (Cth), s44 against a decision of the Tribunal which, in setting aside a decision of Comcare, extended the time for the respondent, Mr Willems, to lodge what the Tribunal found to be a request for reconsideration of a prior decision of Comcare taken under the Safety Rehabilitation and Compensation Act 1988 ("the SRC Act").

2. I should note at the outset that no question was raised either before the Tribunal or in these proceedings as to the Tribunal's jurisdiction to review the decision in question. That decision, which was made on 12 December 1994, was a refusal to allow Mr Willems a longer period than the thirty days prescribed by the SRC Act s62(3)(b) in which to make his request for reconsideration. The particular decision of which reconsideration was sought was made on 21 November 1988. That decision brought to an end Comcare's acceptance of liability to pay compensation to Mr Willems.

3. The present appeal assigns two errors of law to the Tribunal's decision. The first is that it erred in finding that a request for reconsideration under s62(3) had actually been made by Mr Willems. As will be seen, that request was said to have occurred on 14 November 1989 and was out of time by almost eleven months. The second error alleged is that in extending time by that period the Tribunal only took account of events up to 14 November 1989 in disregard of relevant matters occurring subsequent to that date.

4. This can be put in skeletal form. On 6 October 1987 liability was accepted under the statutory precursor of the SRC Act to pay compensation to Mr Willems for a back injury sustained while employed as a linesman by the Australian Capital Territory Electricity Authority ("the employer"). Thereafter a number of treating and examining medical officers recommended Mr Willems' redeployment. Apart from brief initial periods when he returned to work, Mr Willems remained off work until his later resignation from employment.

5. In September of 1988 his employer arranged for light workshop and field duties ("the courier position") to be undertaken by Mr Willems. He rejected this offer of redeployment believing the work proposed to be unsuitable for him. On 24 October 1988 his resignation from his employment took effect and he then moved to Queensland. On 21 November 1988 he was notified of the "original determination" that his employer was not liable to pay him compensation from the time of his resignation. The reasons for that decision were that if he had remained with his employer he would have suffered no loss of salary and that his resignation was voluntary.

6. In December 1988 Mr Willems wrote to his solicitors in Canberra seeking their advice as to whether his compensation entitlement would be revived if he returned to Canberra. He moved back to the ACT in any event in early 1989 and in April of that year applied to his former employer for a courier position. No such positions were available and his application was rejected.

7. Mr Willems solicitors wrote to the employer on 20 June 1989 both indicating that, as it was unable to provide him with suitable alternative employment, he wished to claim compensation for his ongoing incapacity and requesting the relevant forms for the purpose. The solicitors were provided with a compensation claim form by letter on 27 June 1989. That form and several other documents were in turn forwarded by the solicitors to Comcare on 14 November 1989. The accompanying letter stated:

"We act for (Mr Willems) in relation to a claim for

compensation that our client has arising out of his employment

with ACT Water and Electricity.

We enclose herewith the following:

1. Copy letter from your office 1/11/88.

2. Copy letter from ACT Electricity and Water 27/6/89.

3. Comcare Claim Form.

We are instructed by our client that ACT Electricity and Water

is now unable to provide him with suitable alternative employment

and Mr. Willems therefore wishes to claim compensation in respect

of his ongoing incapacity.

We would be pleased if you would give this claim your earliest

attention."

I would note in passing that the Comcare claim form was not produced to the Tribunal or to this Court.

8. Between the dates of the solicitors' request for the compensation form and of the above letter, two file notes were made by Comcare officers - the one referring to the need for a "request for reconsideration" if an earlier medical certificate was to be considered by Comcare; the other, to a visit to Comcare by Mr Willems and (query) his wife in which it was stated he was advised "to request a reconsideration of our determination of 21/11/88".

9. I should, perhaps, emphasise the above letter. It is the document found by the Tribunal to constitute the request for reconsideration of the determination of 21 November 1988.

10. Comcare did not respond to the 14 November letter until 12 March 1990 when it requested additional evidence (medical and otherwise) in support of the claim for compensation. Mr Willems received that request from Comcare. He saw his local doctor who suggested he consult another doctor who had previously examined him. That doctor being in Queensland, Mr Willems attempts to obtain the further medical evidence came to an end.

11. He remained in Canberra until the end of 1990 when he moved to towns variously in New South Wales and then Queensland where, apparently, he still resides.

12. In July 1993 he again sought legal advice from his Canberra solicitors with the object of having his compensation payments reinstated. In ensuing correspondence between the solicitors and Comcare beginning on 20 September 1993 the solicitors indicated they proposed to make an out of time request for reconsideration of (inter alia) the decision of 21 November 1988. A subsequent letter (ie of 31 May 1994) was apparently treated by Comcare as that request for reconsideration. As I noted at the outset of these reasons, the extension of time in which to make the request was refused on 12 December 1994.

13. Before turning to the Tribunal's decision I should observe that some deal of confusion in this matter would seem to have arisen because, for some period at least, both Mr Willems' solicitors and Comcare appear to have treated the letter of 14 November 1989 as a claim for compensation for injury. And at no stage it would seem did they treat it as a request for reconsideration of a prior decision. The Tribunal's Decision

14. It is appropriate to begin with the Tribunal's finding about Mr Willems himself. These provide some explanation for the unusual pattern of conduct revealed in this matter. The Tribunal found him:

"... to be an honest witness but an unreliable historian. I

accept that he was naive and that he did not, at the time of many

of his actions, understand the consequences that would flow from

them ... In particular, I find that he did not understand that,

upon his resignation, his compensation payments would cease.":

Reasons for Decision, para 38.

15. The Tribunal also noted Mr Willems' inability to recall some events. He could not recall, for example, going to Comcare's offices in the second half of 1989 where, according to Comcare's file note, he received advice to lodge a request for reconsideration.

16. The two crucial conclusions arrived at by the Tribunal were, first, that the letter of 14 November 1989 constituted an out of time request for reconsideration under the SRC Act s62(3); and, secondly, that time for the lodging of a request should be extended to the time of that letter.

17. The SRC Act s62(3) provides that:

(3) A request for reconsideration of a determination shall:

(a) set out the reasons for the request; and

(b) be given to the determining authority within 30 days

after the day on which the determination first came to the notice

of the person making the request, or within such further period

(if any) as the determining authority, either before or after the

expiration of that period, allows.

18. For reasons relating to the operation of transitional provisions in the SRC Act, the 30 day period for requesting a reconsideration expired in Mr Willems' case on 30 December 1988.

19. After noting (i) that the SRC Act did not in terms specify that a request be in writing; (ii) that Comcare was required by the Act to make determinations accurately and quickly; but (iii) that in so determining it was to be "guided by equity, good conscience and the substantial merits of the case, without regard to technicalities": cf SRC Act s72(a) - the Tribunal concluded thus:

"The information provided by the solicitor to Comcare in his

letter of 14 November 1989 and attachments (T.88) to the effect

that an earlier determination was made on 21 November 1988, that

he was instructed by his client that ACTEA was unable to provide

him with suitable employment and that he had ongoing incapacity,

when placed in the context of the file notes at T.86 and T.87

indicating the Applicant's need to make a request for

reconsideration, is sufficient to satisfy me that this

constitutes a request for reconsideration pursuant to subsection

62(3) of the 1988 Act. Notwithstanding that a new claim was

included in the letter from the Applicant's solicitor, in the

context of the abovementioned evidence I am not persuaded that

this necessitated that the matter be treated by the Respondent as

a new claim.": Reasons for Decision, para 44.

20. It is Comcare's contention on this appeal that the letter was neither intended to be a request for reconsideration, nor did it comply with the requirements of s62(3)(a) in that the "reasons for the request" were not set out: it was no more than an indication that Mr Willems disputed the original determination.

21. Counsel for Mr Willems in contrast submitted that (a) the letter was capable of being a request for reconsideration and that the Tribunal's finding to this effect was one of fact which could not be challenged: Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 77-78; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-288; (b) when one had regard to the context, the paragraph in the letter which referred to the inability of his employer to then provide him with employment - it was the employer's previous offer of the "courier position" which was an informing reason for the decision to terminate liability for compensation in November 1988 - that provided the "reason for the request" (i.e. it was a case of "circumstances have changed"); (c) having regard to the file notes, Comcare was cognisant of the fact that the case was one in which the appropriate course for Mr Willems to take was a request for reconsideration; and (d) the formality now being insisted upon by Comcare in the matter was inconsistent with the injunction in the SRC Act s72(a) that Comcare be guided by the substantial merits without regard to technicalities.

22. Both parties have accepted before me that it was not open to Mr Willems to make a fresh claim under the SRC Act for the particular injury in respect of which he was seeking to have his compensation payments reinstated. In the circumstances the only proper course open to him was to request a reconsideration. The second of the Comcare file notes referred in the quotation above - it contains the advice given to Mr Willems to request a reconsideration - reveals an early awareness within Comcare that such was the case.

23. It probably is fair to say that Mr Willems' solicitors little appreciated what they should have been doing on his behalf in writing the 14 November 1989 letter and that Comcare correspondingly was misled by them in its then treatment of the matter. This notwithstanding, I am not persuaded that the Tribunal was in error in concluding both that the letter constituted a s62(3) request and that it could properly be treated by Comcare as such. I would add that, though somewhat Delphic, the reasons given in the letter for the marking of the request - i.e. change of circumstances - are sufficiently "reasons" for s62(3) purposes. Whether they are clear, adequate for the purpose, or cogent raises a different question altogether in my view.

24. It is clear that what was done, was done in a fog. But its end in the circumstances was to attempt to secure for Mr Willems such reconsideration of his situation as s62 envisages. I do not in consequence consider that an error of law has occurred in the Tribunal's attributing to the letter the character it gave it. Accordingly I reject the challenge made to this finding.

25. The issue here is a narrow one. In light of the above finding the question for the Tribunal was whether Comcare should grant an extension for submitting the request to Comcare from 30 December 1988 (when s62(3)'s 30 day period was said to expire) to 14 November 1989.

26. It had been submitted to the Tribunal on behalf of Mr Willems - a submission strenuously opposed by Comcare - that only those events up to the time of lodging the request were relevant to the question whether the extension should be granted. This was accepted by the Tribunal which, on examining those events in light of the guiding principles identified in the authorities, determined that an extension should be given.

27. I do not understand that any challenge has been made to the conclusion actually reached by the Tribunal on the limited view it took of the material that was relevant to the question of an extension. Rather the objection taken is to the decision to limit that material to what transpired up to the time of lodging the 14 November request, to the exclusion of the three and a half years which passed between that date and that when Mr Willems' solicitors again agitated his compensation claim with Comcare.

28. Comcare's submissions on this matter were that (a) after the request was lodged it sought additional information from Mr Willems (on 12 March 1990) which was not provided; (b) Mr Willems in effect abandoned his request for a reconsideration by not pursuing the question for three and a half years after lodging the request; (c) the Tribunal was required as a matter of fairness and equity to make its decision on the basis of relevant events up to the date of its decision and his resting on his rights was so relevant as was resultant prejudice to Comcare; and (d) such prejudice resulted from the loss of the opportunity both to continue to monitor Mr Willems' medical condition and to pursue a rehabilitation program over the three and a half year period.

29. I was taken to a body of case law which, in varying contexts, identified principles of relevance to the question of extending time to commence review proceedings (these disclaimed any intent to be prescriptive): see e.g. Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528; Comcare v A'Hearn [1993] FCA 498; (1993) 18 AAR 366; Telstra Corporation Ltd v Razmovski [1994] FCA 1420; (1994) 36 ALD 22.

30. Counsel for Comcare nonetheless conceded that he was unable to point to any decision of this Court in which it was held that events subsequent to the making of an application for an extension of time were relevant to the making of a decision on that application.

31. Put baldly, Comcare's submission is that all matters relevant to the exercise of a discretion to grant an extension are to be determined by reference to the situation obtaining when the discretion is exercised and not by reference to when the request for its exercise was made.

32. Counsel for Mr Willems on the other hand placed the emphasis of his submissions on the particular discretion in question: it was to extend time for the making of a request to the time when the letter of 14 November was "given" (to use the language of s62(3)) to Comcare. To the extent that the delay of one party and its effects on the other were relevant to that question, these must be limited to the time up to when that "giving" actually occurred. As there could be no relevant delay in giving the request after that time, there could be no relevant conduct or effects in respect of any delay after that time. Indeed it was submitted that once the request had been given, the obligation to act in the manner prescribed by s62 became that of Comcare. It was further submitted that the conduct of the applicant and its effects on Comcare subsequent to the giving of the request may well have significant bearing on any reconsideration made if an extension was granted, but it was in that reconsideration and only in that reconsideration that such matters were relevant. Finally, perhaps as an abundance of caution, counsel refrained from submitting that in no circumstances could "post-giving" conduct be relevant. He did, though, submit that for it to be relevant the conduct would need to be extraordinary. He used the example of later revealed fraud such as would taint the request for reconsideration itself.

33. I should emphasise that, while highlighting that Mr Willems was guilty of long delay causing prejudice to it, Comcare did not argue that he had abandoned his request in such a way as to prevent him from reviving it as a matter of law. Nor was any issue of estoppel raised by Comcare.

34. The circumstances here are indeed unusual. As I have noted, it is not suggested that the Tribunal was in error in exercising its discretion if it be accepted that it properly limited its consideration of the matter in the way that it did. For my own part I can see no error in that limitation.

35. The effect of the Tribunal's first conclusion is that on 14 November 1989 Mr Willems made a request for reconsideration which was somewhat under eleven months out of time with the consequence that Comcare became obliged to decide whether or not it would then (i.e. as of that date) accept the request notwithstanding its untimeliness. Mr Willems request was not withdrawn; it was not abandoned. Neither did Comcare seek to set up on estoppel against him because of what may have transpired subsequent to the lodging of the request. Given then, the decision that Comcare was required to make, it is not obvious to me why Mr Willems subsequent conduct and its possible effect on Comcare are of relevance to that decision insofar as it is concerned with the issue of untimeliness.

36. It is, of course, the case that the decision that Comcare was to make was not in reality made until the Tribunal made its determination. There is an obvious explanation for this. No one seems to have been aware, prior to it being raised before the Tribunal, that the decision being made - or that needed to be made - related to the 14 November 1989 letter. Until then the parties conducted themselves, first, as if a fresh claim was being advanced in that letter and, then, as if a request for reconsideration had been made on 31 May 1994. The consequence of this, though, is that, howsoever innocently, Comcare had not done what it ought to have done long since.

37. I make this point not for the purpose of suggesting that Comcare's subsequent behaviour should be taken into account as a relevant consideration. As with Mr Willems post-lodgment conduct, it is clear it should not. Rather I advert to it for two reasons. The first is to draw attention to yet another manifestation of the pervasive effect that error and misapprehension have had on the conduct of the parties in the matter.

38. The second, more importantly, is to emphasise that, in a case such as this, a focus on post-lodgement events (howsoever they are presented) diverts attention from the simple question Comcare was asked to decide. Given that Mr Willems had submitted a request for reconsideration should he be accorded the eleven or so months grace he needed for it to be an effective one?

39. That question arose for answer as and from the time the request was submitted to Comcare. And in one respect it was necessarily a temporally circumscribed one because it was concerned with extending time to a given day.

40. In coming to its decision Comcare, properly, should have regard (i) to the cause of, and the explanation for, the delay in submitting the request; (ii) to Mr Willems' conduct in this; and (iii) to the consequences to Comcare of the delay and of Mr Willems' conduct. But what, in my view, it could not do in evaluating the significance of delay in the matter was to have regard either to Mr Willems' conduct subsequent to the request being submitted or to its consequences for Comcare, unless the effect of that conduct was such as to defer, falsify or nullify the request submitted - and I here refer to later conduct which would amount to the legal abandonment or withdrawal of the request, which would give rise to an estoppel or which revealed the request to be a fraudulent one. The time of submitting the request, in other words, temporally fixed the delay that was relevant for the purposes of determining whether an extension should be granted.

41. This is not to say that there may not be other reasons which could make it entirely proper to look beyond the period of delay. It has, for example, often been acknowledged that the merits of the substantive request are a relevant consideration when a determination is being made on the extension question: see Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305. The Tribunal recognised this to be so in the instant case and this led it to have regard to Mr Willems' condition at the time of the Tribunal's decision: see Reasons for Decision, para 52.

42. I cannot in consequence accept that the Tribunal has erroneously shut out from consideration matters which could and should have been taken into account. It properly addressed the question it had to decide.

43. It is the case in my view that the whole sequence of events in this matter from the time of Mr Willems rejection of his employer's redeployment offer has been unfortunate - whether considered from his or from Comcare's perspective. Yet despite the errors and misapprehensions which have affected these two, it has not been demonstrated to my satisfaction that the Tribunal for its part has fallen into such error as could justify interference with its decision.