Comcare v A'Hearn [1993] FCA 498; (1993) 18 AAR 366

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344

Mr J. Gleeson QC and Mr S. Diamond, instructed by Sparke Helmore, Solicitors, appeared for the applicant.

Mr L.T. Grey, instructed by McClellands, Solicitors, appeared for the respondent.

THE COURT ORDERS THAT: The application should be dismissed with costs.

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

SACKVILLE J The applicant, Telstra Corporation Ltd, ("Telstra") appeals to this Court, pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 ("the Act") against a decision of the Administrative Appeals Tribunal ("the AAT"), constituted by Dr D.J. Grimes, Senior Member. The AAT granted an application by Mr Razmovski, the respondent to the appeal in this Court ("the respondent"), under s.29(7) of the Act to extend the time for making an application for review of a determination by a delegate of Telstra (which is a successor to the Australian Telecommunications Corporation). That determination was made on 20 March 1991, pursuant to s.62(5) of the Commonwealth Employees' Rehabilitation and Compensation Act 1988, now known as the Safety Rehabilitation and Compensation Act 1988,("the SRC Act"). The determination by the delegate confirmed an earlier decision that Telstra was not liable, after 4 January 1990, to pay compensation in respect of an injury related to the respondent's employment.

2. The decision by the AAT extended the time for lodging an application for review of the determination of 20 March 1991 to 17 March 1994, almost three years after the determination was handed down. The time limited by statute for such an application for review is 60 days: SRC Act, s.65(4), providing that s.29(2) of the Act (which prescribes a time for applying for review of an AAT decision) should be read as though the period prescribed for lodging an application for review is 60 days.

3. An appeal under s.44(1) of the Act against a decision of the AAT can be made only on a question of law. As I understood Mr Gleeson QC, who appeared with Mr Diamond for Telstra, he identified five errors of law in the decision of the AAT:

(a) the AAT could not order an extension of time unless it found that

there was an acceptable explanation for the whole of the delay by

the respondent in seeking to review the determination of March

1991 and such a finding had not been made;

(b) the AAT was obliged to consider whether the respondent himself

was blameless for the delay but had failed to do so;

(c) there was no evidence to support the AAT's finding that the

delays were caused by the respondent's solicitors, to whom he had

entrusted his case;

(d) there was no evidence to support the AAT's finding that the

respondent was not responsible for the delay in lodging an

application for review and that he had actively pursued his

claim; and

(e) the Senior Member failed adequately to consider the merits of the

case, in the sense of the respondent's ultimate prospects of

success.

4. Some brief factual background is appropriate. The respondent was employed as a linesman with Telstra from 1973 to 1981. In 1978 he suffered an injury to his right foot for which he was paid periodic compensation until 1981. In that year the respondent was retired on the ground of invalidity. In February 1982 Telstra, through its delegate, determined that it was not liable to pay compensation to the respondent beyond March 1981. This determination was upheld by the AAT in November 1982. In 1983 this Court set aside the AAT's decision because of its failure to take account of the effects of the respondent's pre-1978 employment in aggravating or accelerating the pre-existing condition. Before the matter was reheard, Telstra accepted liability and paid the respondent periodic compensation until January 1990.

5. On 4 January 1990 Telstra's delegate determined that the respondent's condition did not constitute an aggravation, acceleration or recurrence of injury to which his former employment materially contributed. That determination was affirmed by Telstra's reconsideration officer on 20 March 1991. Accordingly, the sixty day period for application to review the determination of 20 March 1991 expired on about 19 May 1991.

6. On 7 November 1991 the respondent's solicitors wrote to Telstra noting that the reconsideration made no reference to a determination of the respondent's rights under s.24 of the SRC Act (which provides lump sum payments according to the percentage of permanent impairment sustained by an employee). On 3 December 1991, Telstra replied, stating that the respondent's entitlement to all compensation benefits, including entitlement to a lump sum, had been addressed in the decision of 20 March 1991.

7. In August 1992 the respondent's solicitors secured a further medical report from a Dr Spence, assessing the respondent as having a 30 per cent permanent impairment of the right foot. On 15 April 1993, some nine months later, the respondent's solicitors submitted the report to Telstra, under cover of a letter claiming lump sum compensation for permanent impairment. The letter stated the solicitor's understanding that the claim would be assessed according to the schedule under the repealed Compensation (Commonwealth Government Employees) Act 1971. This elicited a response from Telstra reiterating that a determination had already been made.

8. On 13 May 1993 the respondent himself wrote a letter to the New South Wales Attorney-General, expressing his concern at the delays in processing his claim. This letter appears to have been forwarded to various Ministerial officers, finishing up with the Federal Minister for Telecommunications. On 17 June 1993 the respondent's solicitors again wrote to Telstra seeking a determination of the claims for compensation for permanent impairment as this had been (so it was said) omitted from consideration in the March 1991 determination.

9. In August 1993 Telstra forwarded the respondent's solicitors a draft letter responding to the representations originally made to the New South Wales Attorney-General. The draft noted that all avenues of appeal appeared to be closed, because of the expiry of the relevant time limit for bringing an application to review the determination of March 1991. During the period September 1993 to December 1993 the respondent's solicitors continued to request Telstra to consider the claim for a lump sum. Not surprisingly, this produced no different response than similar requests had elicited earlier.

10. On 17 March 1994 the respondent filed an application for extension of time under s.29(7) of the Act. That sub-section provides as follows:

"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...."

11. On 29 June 1994 the AAT's decision extending time for the lodging of an application review was handed down. I was informed that the only material before the AAT at the hearing (other than submissions) was documentation, including the correspondence between Telstra and the respondent's solicitors. No other evidence was adduced, either orally or by affidavit, although it appears that some information was conveyed to the Senior Member from the bar table.

12. The AAT stated that it was mindful of the "guiding principles" adopted by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344, at 348-349. The Senior Member summarised those principles as follows:

"(i) that prima facie, proceedings commenced beyond

the prescribed period will not be entertained.

However, an extension of time will be granted if

it is proper to do so;

(ii) it is relevant whether the applicant rested on

his or her rights or whether he or she took

action to make the decision maker aware that the

decision was being contested;

(iii) any prejudice to the respondent that would be caused

by the granting of the extension of time is relevant;

(iv) any wider prejudice to the general public in

terms of disruption to established practice is

relevant;

(v) the merits of the substantial application are

relevant;

(vi) fairness of granting the extensions of time as

between the applicant and other persons in a

like position is relevant."

13. Mr Gleeson did not suggest that this was an inaccurate summary of the principles articulated by Wilcox J.

14. The AAT then stated that recent cases had adopted a "broader approach to the exercise of... discretion" in cases concerning extension of time. The AAT's reasons cited two passages from the then unreported judgment of Hill J in A'Hearn v Comcare (1993) 18 AAR 22, at 24, 26:

"I should say that Wilcox J in Hunter Valley Developments

Pty Ltd was at pains to make clear that he was not seeking

to set out the principles of law governing the exercise of

discretion to extend time. Care must be taken by the

Tribunal to ensure that there is not a slavish adherence to

the matters which are referred to in that judgment, which

are listed merely as matters for guidance....

At the end of the day the discretion of a court or tribunal

given power to extend time will be a wide one, to be

exercised as the justice of the case may require...."

15. Mr Gleeson contended, as I understood him, that the AAT could not order an extension of time unless it found that an acceptable explanation for the delay had been given. I do not think this proposition is well-founded. Although the "guiding principles" formulated by Wilcox J suggested that such an explanation is a precondition to the exercise of discretion in the applicant's favour, the discretion conferred by s.29(7) is not so limited. This conclusion is supported by the language used by Hill J in A'Hearn v Comcare, which was cited by the AAT. Furthermore, the Full Court, in affirming Hill J's decision, observed that it is not a precondition to the exercise of the power conferred by s.29(7) that an acceptable explanation be given for delay: Comcare v A'Hearn [1993] FCA 498; (1993) 18 AAR 366, at 369:

"We note that the Tribunal used language that might be taken

to suggest that it is a precondition 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] FCA 31; (1993) 40 FCR 244; 17 AAR 259 at 247-249;

261-262."

16. I should add that neither counsel referred in argument to the Full Court's decision.

17. In any event, a reading of the AAT's reasons shows that the Senior Member did consider whether there was an acceptable explanation for the delay. He clearly regarded that as a relevant consideration in the exercise of his discretion. The Senior Member's reasoning was directed, in part, to ascertaining whether there was an acceptable reason for the respondent's failure to lodge an application for review within time, or to take any other action after November 1991. He concluded that the solicitors had given no adequate explanation. In this connection, the Senior Member rejected as unsatisfactory an explanation from the bar table that it had been decided that making representations was a more cost effective method of pursuing the respondent's case than an appeal to the AAT. However, the AAT also concluded that the responsibility for the delay was that of the legal representatives and not of the respondent. The AAT took the view, citing A'Hearn v Comcare as authority, that the solicitor's delay should not be visited upon the client. I appreciate that Mr Gleeson attacked the finding that it was the legal representatives who were responsible for the delays. That attack raises the question of whether there was evidence to support the AAT's finding on this issue, a matter to which I shall return. However, in my view, if it is necessary for the AAT specifically to consider whether there is an acceptable explanation for the respondent's delay before exercising the power in s.29(7), the AAT did so in this case.

18. Much the same analysis applies to the second argument put forward by Mr Gleeson. I would not regard it as a precondition for relief under s.29(7) that an applicant demonstrate that he or she was blameless. However, that issue may be relevant, and perhaps very important, depending on the circumstances. But a reading of the AAT's reasons demonstrates that consideration was given to that issue. The AAT specifically noted that there was no suggestion that the respondent himself was responsible for the delays (para. 23). The AAT also made the following findings (in which the respondent before the Court is referred to as "the applicant"):

"The Tribunal is in agreement with the decision of Federal

Court in A'Hearn v Comcare that recognised that a

solicitor's delay should not always be visited upon by their

clients. On the evidence before the Tribunal, the delay

appears to have be(sic) caused by the applicant's

solicitors. The applicant entrusted his case to his

solicitors. Independently of them he also pursued

resolution of the matter through representations to the

Attorney-General and Parliamentary members. The Tribunal is

satisfied that the applicant did not "rest on his rights"

but rather actively pursued his claim, albeit in forums

other than the AAT."

19. Once again, there is a separate question as to whether there was evidence to support these findings. But it cannot be said that the AAT failed to take into account whether the respondent was or was not blameless in relation to the delays that occurred.

20. There was also a suggestion by Mr Gleeson that the AAT may have erred, by not taking into account the merits of the respondent's case when determining that the discretion conferred by s.29(7) of the Act should be exercised in his favour. However, even if it were essential for the AAT to take that factor into account (which is by no means clear), the reasons show that the Senior Member did give consideration to the merits of the respondent's case for compensation. Whether or not the AAT's assessment of the merits was correct or complete is not to the point. The AAT did take that factor into account in the exercise of its discretion.

21. In relation to the third and fourth arguments put by Mr Gleeson, it is necessary to bear in mind that a mistaken finding of fact (if one has been made) is not an error of law for the purposes of s.44(1): Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54, at 77, per Brennan J. Even if the process of reasoning on factual questions is demonstrably unsound or illogical, no error of law is disclosed: Reg v District Court; Ex parte White [1966] HCA 69; (1966) 116 CLR 644, at 654; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, at 356. The absence of any evidence to support a finding of fact is, however, a question of law. Many of Mr Gleeson's criticisms of the reasoning of the AAT seemed to me to relate to the correctness of the findings of fact. Whether or not the AAT drew the correct conclusions from the evidence is not, however, the issue in these proceedings.

22. No doubt because of the course taken before the AAT, the evidence before it was sparse. It is, perhaps, regrettable that additional material on the sequence of events and the failure by the respondent after March 1991 was not adduced. Of course, since the AAT is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks appropriate (Act, s.33(1)(c)), this material presumably could have been presented informally to the AAT.

23. While the reasoning of the AAT may not be altogether convincing, I think that there was some evidence, albeit sparse, to support the findings that the delays were caused by the respondent's solicitors and that the applicant was not responsible for the delays. Mr Gleeson accepted that it was open to the AAT to find (as it did) that the respondent was a migrant of non-English speaking background. It was clear from the documentation before the AAT that the solicitors had acted on the respondent's behalf in March 1991, November-December 1991, August 1992 and from April 1993 until (and including) the proceedings in this Court. There was nothing to suggest that instructions had been withdrawn by the respondent at any stage after March 1991. It is an available inference from the material, in the absence of contrary evidence, that the solicitors had instructions to act for the respondent at all times from March 1991 in connection with his claim. The correspondence itself is also clearly open to the interpretation that the solicitors had formed the view that the determinations of January 1990 and March 1991 were not intended to consider the question of an application for permanent impairment, despite the apparently unequivocal terms of Telstra's letter of 3 December 1991.

24. In addition, the AAT also had before it the letter of 13 May 1993 sent by the respondent to the New South Wales Attorney-General. That letter contained the following passages:

"I am writing to express my concern and anxiety over the

long delay of the processing of my compensation claim for

which I would further elaborate. I seek your assistance in

the matter and hope you will be able to provide me with

further information and clarification....

Dissatisfied by the decision of Telecom to discontinue

payments as of 4/1/1990 I approached the Solicitor Donald

Kirby from McClellands Solicitors to act on my behalf and

pursue legal action.

I have seen the Solicitor Donald Kirby on a number of

occasions and have not received a clear response to my

querie as to the development of the court case. He has told

me that it is difficult and that he will continue to pursue

the case, but nothing definite."

25. Mr Gleeson referred to the letter as "self-serving". Whether or not this is so, the letter was in evidence before the AAT. Its contents, in my opinion, provide at least some support for the conclusion that the respondent had left the matter in the hands of his solicitors and relied on them to take the necessary steps to protect his interests. It also provides some support for the conclusion that the solicitors were responsible for the strategy or, perhaps more accurately, lack of any strategy that accounted for the extended delays in pursuing the respondent's case. Or to put the matter in the language of the AAT there was some evidence that the respondent

"was not well served by his solicitors in this matter, in

that they did not make an application for appeal to the

Administrative Appeals Tribunal within the statutory 60 days

or even after they had received (the letter of December

1991)....

(T)he delay appears to have (been) caused by the applicant's

solicitors."

26. In my opinion the evidence before the AAT also provided some support for the conclusions that the failure to apply for review within time, or even after Telstra's December 1991 letter, was not the fault of the respondent who had entrusted his case to his solicitors. The evidence on these questions was, in some respects, equivocal. Nonetheless, the AAT had available material open to the interpretation that the solicitors had instructions to act for the respondent at all times from March 1991 in connection with his claim; that the respondent himself had given instructions to pursue legal action and, despite queries, had never received clear responses from his solicitors as to the development of the case; that the respondent had difficulty with English (despite the clear terms of his letter to the New South Wales Attorney-General); and that the solicitors had taken the course of repeatedly attempting to reopen the issue of compensation for permanent incapacity despite being aware that Telstra had rejected this course. It is perfectly true, as Mr Gleeson pointed out, that there were gaps in the evidence. For example, there was no evidence of the precise instructions given by the respondent after the determination of March 1991 (although the letter of May 1993 suggests that he wished his case to be pursued). But the evidence before the AAT provided at least a foundation for the findings made. I repeat that whether or not those findings were correct is not the issue in these proceedings.

27. Mr Gleeson also complained of the finding by the AAT that the respondent did not "'rest on his rights' but rather actively pursued his claim, albeit in forums other than the AAT". On one view of it, this finding is an overstatement of the evidence, since the representations to other "forums" only commenced in 1993. But the complaint really goes to the AAT's evaluation of the evidence, and does not constitute an error of law.

28. I have already said more than once that the issue before me is not whether the AAT was correct in reaching the factual conclusions that it did. I accept that Mr Gleeson's criticisms of the reasoning process employed by the AAT have considerable force. But in my view it cannot be said that there was no evidence to support the challenged findings. Accordingly, there was no error of law, within s.44(1) of the Act, in the findings of fact made by the AAT.

29. Mr Grey for the respondent submitted, in the alternative, that even if an error of law had been demonstrated, the AAT had not made a "decision" for the purposes of s.44(1) of the Act. For this submission he relied on Director-General of Social Services v Chaney [1980] FCA 87; (1980) 47 FLR 80, as establishing the proposition that a "decision" means a final decision or determination. He further submitted that the decision to extend time was not a final decision or determination. Compare Australian Broadcasting Tribunal v Bond, at 335-339. In view of the conclusions I have reached on other matters it is not necessary to decide the issue raised by Mr Grey.

30. In my opinion no error of law has been disclosed in the decision of the AAT. Accordingly, the application should be dismissed with costs.