3. The difference between the two determinations is that that of September 1986 denies liability to pay compensation "in respect of a condition suffered . . . which caused incapacity for work and or necessitated medical treatment on and subsequent to 19 January 1985". The May 1987 determination denied liability in respect of the claim for "aggregation (scil. aggravation) of a pre-existing back and neck condition". At a directions hearing on 15 August 1989 counsel for the applicant, Mr R.L. Crowe, said that it was the September 1986 determination that was the most substantive, and that the medical evidence for the respondent and the applicant had been gathered so as to relate to the substantive issue. Mr Crowe stated that the application for review of the May 1987 determination would not be pursued and that it would in fact go back to Comcare for redetermination.

4. The events following the lodgment of the documents are no longer in issue but require some explanation. At some time between mid April and mid June 1988, the respondent received a notification from the Tribunal that an application for extension of time had been made by the applicant. The respondent submitted that the 2nd Form 1 was attached. The 2nd Form 1 later became T1 of the documents lodged pursuant to s.37 of the AAT Act by the respondent.

5. On 4 August 1988 the Tribunal was advised that the respondent did not object to the grant of an extension of time. Accordingly, on 8 August 1988 the Tribunal granted an extension of time. The respondent submitted that when it received the direction, the 2nd Form 1 was attached. Thus, it was submitted, the preparation of its case was based on the application to review the May 1987 determination.

6. In July 1989 the respondent stated that it had come to light that there had never been an application for an extension of time for lodging the 2nd Form 1. It then received a copy of the 1st Form 1 plus the application for extension of time for lodging the 1st Form 1 to which it said it had never consented. The respondent then submitted that the direction of 8 August 1988 granting an extension of time to the application for review of the May 1987 determination could have no bearing on the application for extension of time to lodge the 1st Form 1 for review of the 1986 determination. Any application for extension of time to lodge the 1st Form 1 would have been opposed as there had been a lengthy delay from late 1986 until 7 April 1988 and insufficient explanation as to why.

7. At a directions hearing on 15 August 1989, the Tribunal directed that the 1st Form 1 be lodged nunc pro tunc and that the application's solicitors lodge an affidavit and/or a submission in support of an application for extension of time. The respondent was given time to reply. The direction of 8 August 1988 was set aside and the hearing dates vacated.

8. On 6 September 1989, the applicant's solicitors duly lodged two affidavits with the Tribunal. The first was made by a Mr Graeme Henderson, a friend of the applicant, sworn 5 September 1989, and the second by the applicant herself also sworn 5 September 1989. As a consequence, an interim hearing was set down for 9 November 1989 to enable the respondent to reply to the affidavits.

9. At the interim hearing Mr G. Clark of counsel appeared for the applicant. He sought to rely on both affidavits as providing sufficient explanation as to why there had been a delay in lodging an application for review from the time of receipt of the notice of the September 1986 determination until 7 April 1988.

10. The applicant's affidavit, insofar as relevant, is set out below:

dated 5 November 1986 from the Commissioner

advising that the first determination was

neither varied or revoked, a copy of which is

annexed hereto and marked with the letter

'C'. In late November 1986 I received a

letter dated 25 November 1986 from my

employer a copy of which is annexed hereto

and marked with the letter 'D' which stated

that the Commonwealth Medical Officer (the

CMO) was of the opinion that I was 'unfit for

continued employment in the nature of the

duties of the position presently occupied.'

Due to the CMO's opinion I lodged a further

claim for compensation, a copy of which is

annexed hereto and marked with the letter 'E'

together with a letter in support dated 1

December 1986, a copy of which is annexed

hereto and marked with the letter 'F'. I

also provided a medical authority, a copy of

which is annexed hereto and marked with the

letter 'G'. I am unable to recall why the claim

which I believe was attached to the letter of

1 December 1986 is dated 20 February 1987.

5. I was firmly of the belief that with the

CMO's latest opinion and the further

application for workers compensation that the

Commissioner would be able to review all

matters concerned with my claims for

compensation back to January 1985. I did not

realise that time limitations with respect to

lodging an appeal in this Tribunal continued

to run with respect to the reconsideration

dated 5 November 1986. The claim (annexure

'E'), letter in support (annexure 'F') and

medical authority (annexure 'G') all refer to

the total period of absence from work due to

my belief as to the effect of making the

further claim.

6. The claim for compensation dated 1 December

1986 was determined against me on 22 May

1987. I did not become aware, however, of

this determination as it did not reach me.

7. On 14 August 1987 I received a letter dated 7

August 1987, a copy of which is annexed

hereto and marked with the letter 'H' which

stated that I was required to repay

$13,513.70. I replied to that letter on 17

August 1987, a copy of which is annexed

hereto and marked with the letter 'J' and

stated that as I believed the whole matter

was still under review that requests for any

repayment was not appropriate.

8. Soon thereafter I was informed that a

determination had been made on 22 May 1987.

I contacted an organiser at the Australian

Public Service Association, my union, and he

attempted to help sort out matters. On 10

November 1987 I consulted my solicitor.

9. I am advised by my solicitor and believe it

to be true that she did on 20 November 1987

forward a letter to my employer, a copy of

which is annexed hereto and marked with the

letter 'K', and forwarded a reminder letter

to my employer on 20 January 1988, a copy of

which is annexed hereto and marked with the

letter 'L'. I am advised and believe the

same to be true that a reply was received

from my employer dated 9 February 1987, a

copy of which is annexed hereto and marked

with the letter 'M'.

10. I had an appointment to see Dr A Brook on 3

March 1988 and my solicitor advised that she

intended waiting for Dr Brook's report and

obtaining an advice from a barrister. By way

of letter dated 5 April 1988 I was advised

that this had been done and that the Appeal

to this Tribunal would be lodged."

11. Thus, Mr Clark submitted, the applicant believed that although she had received a letter from the Commissioner saying that the earlier determination was neither varied nor revoked, the subsequent letter from the Commonwealth Medical Officer ("CMO") finding her unfit for continued employment inspired the applicant to believe that she should again put in a claim, and, on the basis of the CMO's finding, that her claim would this time succeed. She did not realise that the time for lodging an application for review with the AAT had continued to run against her since late September 1986.

12. Mr Erskine, for the respondent, submitted that the second claim related to a different period. The first claim had the date of injury as December 1984, the second as December 1985. This would, in his submission, make it unlikely that the second claim was an attempt to pick up the whole process from the very beginning. Mr Clark submitted that the letter attached to the second claim (Annexure "F") related clearly to the first claim.

13. By virtue of s.29(7) of the AAT Act:

"The Tribunal may, upon application in writing by a

person, extend the time for the making by that

review of a decision . . . . "

Here, the applicant received notice of the September 1986 determinations in late September 1986 and she then by virtue of s.65(4) of the Compensation (Commonwealth Government Employees) Act 1971, which modifies s.29(2) of the AAT Act, had sixty days in which to make her application to the AAT, taking her up to late November 1986.

14. It is clear from the decision in Re Bell and Australian Telecommunications Commission (Decision No.1070, 1 June 1983) that time starts to run from the date of the determination and not from the decision not to vary or revoke a determination previously made. Thus time here began to run in September 1986 rather than in November 1986 when the Commissioner decided neither to vary nor to revoke the determination.

15. The amount of time which elapsed from November 1986 until the lodging of the application for review on 7 April 1988 was approximately 16 months.

16. Mr Erskine submitted that an onus rested upon the applicant to establish a basis for the Tribunal exercising its discretion to extend the time for making the application for review. The Federal Court decision of Lucic v Nolan (1982) 45 ALR 411 was cited for this proposition. There Fitzgerald J. said at p 416:

". . . I consider that an applicant for an extension

of time maintains throughout the burden of

showing why, in all the circumstances, the

extension of time should be granted."

The judgment went on to state that there are a great variety of material circumstances to be considered. In that case the issue was whether an extension of time should be granted in which to lodge an application for review with the Federal Court under the Administrative Decisions (Judicial Review) Act 1977.

17. In Re Bell it was said that s.29(7) of the AAT Act is a question of balancing fairness with regard to various factors impinging upon both sides, including the question of prejudice, rather than one of onus of proof. Indeed there is some difficulty in introducing the concept of onus, generally of importance in relation to curial proceedings, into the proceedings of the Tribunal. Judgments of the Federal Court however obviously provide guidance in deciding the matter.

18. The Tribunal has, in past decisions, been guided by the principles enunciated by Wilcox J. in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305. See for instance Re Bonavia and Secretary to Department of Social Security (1985) 9 ALD 97, Re Stevenson and Commonwealth of Australia, 7 AAR 343, Re Edward Souery & Co Pty Ltd and Export Development Grants Board 4 AAR 111 and recently Re Australian National Railways Commission and Mutaza Kulu (Decision No.5420, 11 October 1989).

19. Briefly the six general principles can be summarised as follows:

(i) It is a prima facie rule that proceedings

commenced outside the prescribed period will not

be entertained. An extension of time will,

however, be granted if it is proper to do so.

(ii) Consideration is to be given to the action taken

by the applicant. Did he or she "rest on his or

her rights" so as to lead the decision maker to

believe that the matter was concluded, or did he

or she continue to make the decision maker aware

that the decision was being contested?

(iii) Consideration should be given to whether any

prejudice to the respondent would be caused by the

grant of an extension.

(iv) There being no real prejudice to the respondent,

consideration must be given to whether there will

nevertheless be a wider prejudice to the public in

terms of disruption to established practices (see

Re S & J Ferguson Ltd and Minister for Arts,

Heritage and Environment (1986) 6 AAR 56).

(v) Consideration of the merits of the substantial

application should be made to see if these

indicate that an extension of time should be granted.

(vi) Finally, consideration should be given to whether

it is fair as between the applicant and other

persons in a like position to grant the extension

of time.

20. In Re Bell, while that case was decided before the Hunter Valley Case, consideration was given to most of the above factors. There was a delay of approximately 6 years but crucial medical evidence did not become available to the applicant until about 5 years after the original incident. The applicant then acted quickly to lodge an application for review. Weighing possible prejudice to the respondent, which was not found to be marked, against the possible injustice to the applicant, the balance of fairness required the Tribunal, in its view, to grant an extension of time. It was also found that this evidence provided the applicant with a strong chance of success in her claim. At paragraph 19 the Tribunal said:

"There is no doubt that normally the power to

extend time would be expected to be confined to

cases where there is a relatively short period of

time involved, and where the delay has occurred

more through ignorance or dilatoriness in relation

to the invocation of the review process."

21. In Re Stevenson the applicant applied in 1981 to review a determination but withdrew the application before the hearing. In 1985 he applied to the Commissioner for reconsideration of the determination and the Commissioner decided neither to vary nor to revoke it. He then applied to the Tribunal.

22. The Tribunal constituted by Deputy President Thompson found that the 1981 application, having been withdrawn, was no longer before the Tribunal and that to lodge an application to review the determination, an extension of time had to be obtained. In deciding whether to grant such an extension, the Deputy President had regard to the principles stated in Hunter Valley. Over a year after the first application for review had been withdrawn, the applicant had engaged in correspondence with the Commissioner attempting to obtain a reconsideration in his favour. This went on for about 18 months until the decision neither to vary nor to revoke was made. Deputy President Thompson accepted that the applicant saw reconsideration as an alternative to a review by the Tribunal. If the applicant could acceptably explain the delay between withdrawing the application for review and writing to the Commissioner requesting reconsideration then the delay from then on could be regarded as having been acceptably explained. The first delay was however not so explained.

23. Attempting to apply the Hunter Valley principles here, the following comments can be made: The delay which occurred was approximately 17 months, quite a lengthy delay but not necessarily fatal as longer periods of delay are permissible if there are circumstances making it proper to do so, for example as in Re Bell. In Re Stevenson Deputy President Thompson appeared to regard the applicant's belief that reconsideration was an alternative to review by the AAT as an acceptable explanation for his failing to lodge a claim while this reconsideration was being undertaken. Indeed one would not expect lay applicants to be familiar with the proposition in Re Bell that time begins to run from the original determination. Here, the applicant could be excused at least until early November 1986 when she was given notice that reconsideration had concluded. The difficulty is that the applicant did not lodge the application then because, as she said in her affidavit, she received a letter dated 25 November 1986 stating that the CMO was of the opinion that she was unfit for continued employment in her then present duties. This opinion led her to believe that, if she were to make another claim, the Commissioner would be able to review the whole matter back to January 1985. The applicant stated that the claim was made on 1 December 1986, despite being dated 20 February 1987. The letter in support bears the earlier date. The applicant did not realise that time was still running, as she thought that she was making a wholly new attempt. The determination on this further claim did not come to the applicant's attention until about August 1987, after which she contacted her union to help her sort things out. Not until November 1987 did she see her solicitor. At this point, the time for lodging an application for review of the second determination would have run out. If time had started to run in late August, the sixty days would have expired in late October. Again, after consulting her solicitor, there was further delay while the solicitor contacted her employer and waited for Dr Brook's report. Not until 7 April 1988 was any application made to the Tribunal. No doubt the solicitors should in November 1987 have lodged an application for extension of time even though they were corresponding with the applicant's employers and awaiting a medical report. Almost five more months elapsed. In Duff v Freijah [1982] FCA 159; (1982) 5 ALD 16 Northrop J. referred to delays of the solicitor being visited upon the client. While the position should not be as strong in proceedings before the Tribunal, every case must be determined on its own facts: Wedesweiller and Others v Cole and Others [1983] FCA 94; (1983) 5 ALN N137. Overall, this further delay by the present applicant should be considered in combination with the applicant's delay between November 1986 and August 1987. Arguably she should have consulted a solicitor once the reconsideration was complete and she had received what was in her mind a conflicting letter setting out the CMO's opinion. The fact was however that the result was confusing to the applicant. It was a case of two arms of administration acting independently, a common enough situation. I consider that on balance the applicant's explanation for the delay should be accepted.

24. Mr Erskine submitted that the applicant made a new claim after the CMO's opinion was conveyed to her. The claim was for the aggravation of her back and neck injury from 2 December 1985 when she went back to work. The original claim was in respect of an earlier period. Thus, he submitted, the claim could not purport to open up the whole process again. Mr Clark submitted that the attached letter sets out the complete history of the claim and that the second claim was part of the continuum. Indeed the letter stated, in the fourth last paragraph, a "fervent hope" that, in the light of the CMO's most recent opinion, the Commissioner could give consideration to the whole period back to January 1985. Also attached was a consent to release medical information which relates to the whole period since it says that the information "may refer back to January 1985 as the Commissioner requires" although it was provided in respect of her later claim.

25. Mr Erskine pointed out that in paragraph 4 of the applicant's letter dated 2 October 1986, in which she requested reconsideration, the applicant said that she reserved her right to refer the matter to the AAT. This, in the respondent's submission, showed that the applicant was well aware of her rights to apply to the Tribunal. Overall however it seems that there was confusion in the applicant's mind after receiving the CMO's opinion, and that she thought that the whole matter could be reopened back to January 1985.

26. As to the second principle in Hunter Valley it is necessary to consider the actions of the applicant during the delay, that is to say whether she continued to indicate to the decision maker that the matter was still being contested. This in my opinion she did do. Reconsideration was requested in October 1986, and a further claim made in December 1986. While the claim may have appeared to relate to a later period, her attached letter canvassed her desire to have the whole matter reviewed back to January 1985. The decision maker should thus have realised that the applicant did not wish to accept the result in the first determination. The applicant did not, therefore, "rest on her rights".

27. At the directions hearing Mr Erskine said that there would be prejudice to the respondent if an extension of time was granted within which to lodge an application in relation to the first determination because it related to an earlier period. All of the respondent's evidence had been gathered on the basis that it was the claim of 1 December 1986 that was relevant and which related to the period from December 1985.

28. Mr Crowe, for the applicant, said at the first directions hearing that when one looked at the substance of the claim it was essentially the same, it was just that the original claim was in relation to an earlier period. All the doctors' reports, he submitted, related back to the earlier period. Indeed, the s.37 documents incorporate medical reports of Dr Lowe, dated 14 February 1985; of Dr Robson dated 3 March 1986; and of Dr Brook dated 6 June 1986. These all related to the first determination of September 1986. There have been some further reports. Dr Cairns submitted a report dated 19 January 1989 which dealt with the history of the claim. Dr Andrews' report of 31 March 1989 does appear to relate to aggravation but does consider the substantive history of the matter. On the whole, the s.37 documents and other reports cover the whole claim and it is difficult to find any real prejudice to the respondent, if an extension of time were to be allowed in relation to the initial determination.

29. Even if there were no prejudice to the respondent, a wider public consideration must be considered given the public interest in the finality of decision-making and the need to prevent disruption to established practices. It is difficult to see whether there is a wider prejudice involved here if the extension of time is granted.

30. Having regard to the merits of the applicant's substantial application, the position is not so clear as to warrant any comment being made on this point, and I do not do so.

31. There have been no submissions presented to the Tribunal that there would be any unfairness as between the applicant and other persons in a like position. This case stands on its own and it is unlikely that there would be other like cases.

32. On balance the result is that, given that the applicant has offered an acceptable explanation for the delay, namely it having been based on a misunderstanding, and given the minimal prejudice to the respondent, the Tribunal should in my opinion exercise its discretion pursuant to s.29(7) to grant an extension of time for the lodging of an application by the applicant for a review of the determination dated 24 September 1986 to 7 April 1988.