IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY No. G150 of 1983 ee ewe GENERAL DIVISION ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR. J.0. BALLARD BETWEEN: AUSTRALIAN TELECOMMUNICATIONS COMMISSION Applicant AND: HENRY JOHN PEPPER-~CLAYTOW Respondent ORDER JUDGE MAKING ORDER: Neaves J. DATE OF ORDER: 1 June 1984 WHERE MADE: Canberra THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The decision of the Administrative Appeals Tribunal given on 18 May 1983 be set aside. 3. The case be remitted to the Administrative Appeals Tribunal to be heard and decided again. 4. The respondent pay the applicant's costs of the appeal. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G150 of 1983 ) GENERAL DIVISION ) CORAM: DATE: ON APPEAL FROM THE GENERAL ADMINSTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR. J.0. BALLARD BETWEEN: AUSTRALIAN TELECOMMUNICATIONS COMMISSION Applicant AND: HENRY JOHN PEPPER~CLAYTON Respondent Neaves J. 1 June 1984 REASONS FOR JUDGMENT Pursuant to sub-section 44(1) of the Adminis- trative Appeals Tribunal Act 1975 Australian Telecommnuni- cations Commission ("the applicant") has appealed to the Court, on a question of law, from a decision of the Administrative Appeals Tribunal given on 18 May 1983. The Tribunal extended until that date the time for the lodging of an application to the Tribunal by Henry John Pepper-Clayton ("the respondent") for a review of a decision made under the Compensation (Commonwealth Government Employees) Act 1971 ("the Compensation Act") on 28 June 1979. It appears from medical reports, to which I shall refer, made by Dr. C.B. Degotardi and Dr. B. Bloch that the respondent sustained personal injury on three occasions while travelling to or from his employment as a temporary tradesman with the applicant. In January 1974 he fractured his right eighth and ninth ribs. In 1975 he fractured his left ankle and on 1 July 1976 he slipped on wet grass while walking home from work and twisted his back and both knees. It further appears that a determination was made under the Compensation Act awarding compensation in respect of the incapacity arising from the injury sustained on 1 July I976 and the respondent was paid compensation in accordance therewith. On 11 September 1978 Dr. Degotardi, pyschiatrist, made a report on the respondent to the New South Wales Director of the Commonwealth Department of Health. The circumstances in which that report came to be made are not apparent from the material before the Court. Dr. Degotardi reported - "I cannot comment on his orthopedic state, but I accept the reports in his file and his own belief that he has a chronic degenerative osteo-arthritis including spondylosis. It maybe (as in reports) that this condition temporarily was exaggerated in terms of his symptoms as a result of the injury on 1. 7.76, but this would have only been for a matter of weeks and would not have any effect upon the condition after this. His symptoms are excessive for the condition and this must be due to a neurotic overlay of the physical condition. He also has a general neurotic anxiety/depressive reaction secondary to his physical state. These neurotic reactions have no causal connection to the injuries stated (23. 1.74, 1. 4.75, or 1. 7.76) but are purely to (sic) a reaction to the progressive degenerative disorder. He has an obsessional personality and these people commonly present with neurotic reaction with any physical ill health or physical limitations. His ability to work has been reduced to unemployability because of the combination of his chronic degenerative osteo-arthritis and his super-imposed chronic now specific neurotic reactions." On 1 June 1979 the respondent was seen by Dr. Bloch, orthopaedic surgeon. He was referred to Dr. Bloch by his general practitioner, Dr. R. Richardson, but, as Dr. Bloch's report states "an independent opinion or assessment is required as a final determination is pending" of the respondent's claim for compensation. Dr. Bloch reported - "There is no orthopaedic cause for his complaints and working as a tradesman is within his capacity easily, in fact, his present level of activity supports this view. I see no reason for medication nor a corset. What is apparent is either a conscious overemphasis or motivation or there could be a genuine neurosis but this and its relation- ship to work or injury is out of my province." On 28 June 1979Mr.F.J. McMahon, a delegate of the Commissioner for Employees' Compensation ("the Commis- sioner"), made a determination under the Compensation Act in the following terms - "In the matter of the claim of Henry John PEPPER-CLAYTON for compensation in respect of injury on 1 July 1976. DETERMINATION (1) On the evidence before me, including specialist medical opinion, I find that the effects of the personal injury sus- tained by the said Henry John Pepper- Clayton on 1 July 1976 have now ceased to exist. (2) NOW THEREFORE, in pursuance of the provisions of the Compensation (Commonwealth Government Employees) Act 1971, as amended, and further to the determinations previously made in this matter, I hereby determine: - the effects of the personal injury sustained by the said Henry John Pepper-Clayton on 1 July 1976 have now ceased to exist, and from the date of this determination the Australian Telecommunications Commission ceases to be liable to pay compensation under the said Act in respect of the said personal injury." This is the determination which the respondent seeks to have reviewed by the Administrative Appeals Tribunal. The respondent on or about 20 July 1979 addressed a letter bearing that date to the Commissioner. In view of the importance which that letter has assumed in the proceedings from which the present appeal is brought it is desirable to set it out in full. It reads - "YT make application to have furnished to me, the following: - a) the claim for compensation and any other documents furnished to the Commission by me on my behalf, or on behalf of the Authority which employed me (Telecom Australia) in the matter of the Deter- mination and b) All medical certificates obtained by the Commissioner in connection with the matter of the Determination, particularly the report of Dr. Bernard Bloch. The determination to which I refer is 'In the matter of the claim of Henry John Pepper- Clayton for compensation in respect of injury on Ist July, 1976.' Further, I respectifly (sic) request an extension of time to allow me to determin[e] if an[d] which course of action I may wish to take when all evidence is examined." By letter dated 13 August 1979 the Commissioner replied, the reply including the following paragraphs - "Your request for copies of documents in connection with your claim will be complied with as soon as the Departmental papers are received in this Office. Concerning your application for extension of time, it is not clear which avenue of appeal you are considering and, therefore, I am unable to advise you in this regard. Your attention is drawn to paragraph (12) of the attached notice which indicates action to be taken should you wish to apply to either the Compensation Tribunal or a prescribed Court for an extension of time. You should note that there is no time limit for the making of a request for reconsideration by the Commissioner (paragraph 10 of the notice refers) ." The notice referred to in that letter was a document of two pages setting out the rights given to a claimant under the Compensation Act. Paragraphs 1 - 5 of the notice- under the sub-heading "Rights", were in the following terms - "(1) REQUEST FOR STATEMENT OF REASONS FOR DETERMINATION - If you are dissatisfied with the determination and consider that it does not adequately state the reasons for the determination you may request the Commissioner to supply you with a statement setting out the reasons. (Section 61). (2) REQUEST FOR COPIES OF DOCUMENTS - If you are dissatisfied with the determination, you may request the Commissioner to furnish you with a copy of:- (a) the claim for compensation and any other document furnished to the Commissioner by you, or on your behalf, or on behalf of the Commonwealth, in connection with a matter or question to which the determina- tion relates; and (b) any medical certificates obtained by the Commissioner in connection with a matter or question to which the determination relates. (Section 61). (3) REQUEST FOR RECONSIDERATION BY COMMISSIONER - If you request the Commissioner to reconsider the determination, he is required to do so, provided you have not commenced a proceeding as in (4) or (5) below. (Section 20(4) (b)). (4) REQUEST FOR REFERENCE TO COMPENSATION TRIBUNAL - You may request the Commissioner to refer a Matter or question to which the determination relates to a Compensation Tribunal for consider- ation. (Section 61). (5) APPLICATION TO A PRESCRIBED COURT FOR JUDICIAL REVIEW - As an alternative to (4) above, you may apply to a prescribed court for judicial review of the determination. (Section 61)." Paragraph 7, dealing with the procedure to be followed to request a reference to a Compensation Tribunal, read - "A request for reference to a Compensation Tribunal referred to in (4) above must be made in writing and be served on the Commissioner in the manner indicated in (6) above. It must set out the grounds on which the request is made and be accompanied by a fee of $2.00 (prescribed in Regulation 19) which will be refunded if the Compensation Tribunal's decision is in your favour. A copy of the request must also be served on any other claimant who is a party to the determination and on the Commonwealth by delivering it, or send- ing it by registered post, to the Head Office of the Department which employed the deceased employee or a Deputy Crown Solicitor for the Commonwealth. . L£ you decide to request a reference to a Compen- sation Tribunal, you may find the information in paragraph (14) below of some assistance." Paragraphs 9 - 13 set out the periods allowed for requests and applications. Paragraph 10 stated that a request for reconsideration by the Commissioner as mentioned in paragraph (3) might be made at any time but might not be made if the claimant had commenced action of the kind referred to in paragraph 4 or paragraph 5 of the notice. Paragraph 11 set out the time limits prescribed for a request for a reference to a Compensation Tribunal or for an application to a pre- seribed court. It provided - "Subject to (12) below, a person making a request for a reference to a Compensation Tribunal as in (4) above, or an application to a prescribed Court as in (5) above, must do so within 60 days AFTER THE DATE OF SERVICE ON THAT PERSON OF A COPY OF THE DETERMINATION, unless one of the following applies: - (a) if a request for a statement of reasons for the determination as in (1) above was made within 15 days after the date of service of a copy of the determination - then the period of 60 days RUNS FROM THE DATE OF SERVICE ON THE PERSON CONCERNED OF THE STATEMENT setting out the reasons for the determination; (b) if a request for reconsideration by the Commissioner as in (3) above was made within 30 days after the date of service of acopy of the determination - then the period of 60 days is extended to 120 days WHICH RUNS FROM THE DATE OF SERVICE OF A COPY OF THE DETERMINATION; or (c) if both (a) and (b) apply, i.e., if a request for a statement of reasons for the determination as in (1) above was made within 15 days after the date of service of a copy of the determination AND a request for reconsideration by the Commissioner as in (3) above was made within 30 days after the date of service of a copy of the determination - then the period is extended to 120 days WHICH RUNS FROM THE DATE OF SERVICE OF THE STATEMENT setting out the reasons for the deter- mination." Paragraph 12 read - "A compensation Tribunal or a prescribed Court may extend the periods mentioned above and it should be noted that - (a) A request for an extension of time to make a request under (4) above for a reference to a Compensation Tribunal must be made in writing. The grounds on which the request is made must be stated and it must be accompanied by the fee of $2.00 prescribed in Regulation 19. Where a fee of $2.00 is paid in respect of a request for an exten- sion of time, another fee of $2.00 is not payable in respect of the request under (4) above and the fee will be refunded if the Compensation Tribunal's decision on the request under (4) above is in your favour. A request for an extension of time should be served on the Commissioner in the manner indicated in (6) above. Within 7 days of the date on which the request was served on the Commissioner, a copy of the request must also be served on the Commonwealth in the manner indicated in (7) above. (Section 77). (b) An application to a prescribed Court for an extension of time should be in writing. It should set out the grounds of the application and be lodged with the appro- priate officer of that Court - see (8) above and (15) below. Within 7 days of lodging the application with the Court, a copy of the application must be served on the Commissioner and the Commonwealth in the same manner as indicated in (6) and (7) above. (Section 91)." Paragraph 13 dealt with questions concerning costs and paragraph 14 set out some additional information concerning proceedings before a Compensation Tribunal. Paragraph 15 identified the prescribed Courts. By letter dated 7 December 1979 the respondent requested the Commissioner to reconsider the determination of 28 Jume 1979. The letter contained the following paragraphs - "The reason I request this reconsideration is that I have and still do suffer consistent pain and discomfort since the personal injury I sus- tained on ist July 1976. To assist with allevi- ating the pain and discomfort, I still require medical treatment, and pharmaceutical medication, cost of which has been placed on me since my injury. Prior to the injury I was able to perform duties with Australian Telecommunications Commission to the level of Telecom Tradesman, without any difficulties. I now find that I cannot perform these duties and have been classified unemployable because of a com- bination of chronic degenerative osteo- arthritis and continued nervous and physical condition. My physical, nervous and arthritic conditions have degenerated only since the injury was sustained and I seek your reconsideration of the previous determination on this matter." The Commissioner replied by letter dated 17 December 1979 reading as follows - "I refer to your letter of 7 December 1979 in which you have requested that the determination of 28 June 1979 be reconsidered. That determination was made on the basis of Dr Bernard Bloch's report of 1 June 1979, copy of which was supplied to you on 6 Septem- ber 1979 and the Commissioner would probably have regard to that report when he makes his re-consideration. You may, however, submit medical evidence, preferably from a specialist, to refute Dr Bloch's report and ask that it be taken into account when the Commissioner makes his reconsideration. Would you please advise me if you intend to obtain and to submit such medical evidence." The respondent resolved to pursue the matter by obtaining further medical evidence to support his case. By letter dated 3 January 1980 he so informed the Commis- sioner and stated that he would not be in a position to make the necessary arrangements to obtain such medical opinion until sometime in February 1980. No medical evidence was submitted to the Commissioner by or on behalf of the respondent and the Commissioner, by letter dated 6 May 1980, asked the respondent if he intended submitting medical evidence in support of his request for reconsideration. The letter went on - "In the absence of any reply within 21 days of the date of this letter it will be assumed that you do not wish the Commissioner to proceed with a reconsideration of the deter- mination of 28 June 1979." 10. Nothing further was done by or on behalf of the respondent until 26 August 1982, that is some two years and three months later. On that date a letter was addressed by the respondent's solicitors to the Acting Secretary, Australian Telecommunications Employees' Association. It may be assumed from the terms of the letter that the respondent was referred to the solicitors by the Association. The letter contained the following paragraph - "Should the member desire to pursue the claim through the appropriate tribunal we recommend that he made (sic) a further formal application for compensation which application would pre- sumably receive an unfavourable reply from the Commissioner for Employees' Compensation which unfavourable determination ought to be the subject of an application for review within the time limit supplied." On 30 August 1982 the respondent lodged with the applicant a claim for compensation in respect of the injury sustained on 1 July 1976. The claim is not in evidence but by letter dated 3 September 1982 the applicant informed the respondent as follows - "I refer to the claim for compensation made by you on 30 August 1982, in respect of injury on 1 July 1976. It is not proposed to take any action on this claim, as it is in duplication of the original claim of 3 August 1976 in respect of the same injury. To substantiate this, I have attached photo- copies of your original claim, the decision of the Commissioner for Employees' Compensa- tion dated 28 June 1979, which formally re- jected liability, and associated correspondence concerning your appeal rights." 11. By letter dated 21 September 1982 the solicitors for the respondent asked the Commissioner whether he was prepared to waive the limitation under the Compensation Act of the time within which an application for review might be made to the Administrative Appeals Tribunal from the determination of 28 June 1979. The Commissioner was apparently not prepared to do so. By letter dated 1 October 1982 the solicitors for the respondent informed the Registrar of the Adminis- trative Appeals Tribunal that the respondent had instructed them "to make a further application to the Tribunal for an extension of time in which to lodge the appropriate application" against the determination of 28 June 1979. The solicitors asked "if some consideration could be given to this request". A formal application for the extension of the time to lodge an application for review of the determina- tion was not made until 7 February 1983 and this was the application upon which the decision from which this appeal is brought was made. The grounds uponwhich the respondent (in the document called "the applicant'') sought an extension of time were - "1. The applicant was not aware of the limitation period for the filing of Application for Review of Decision. 2. Upon receipt of the Determination the Applicant communicated with his Indus- 12. trial Union and incorrectly presumed that all appropriate steps were taken to protect his interest." The application was made pursuant to sub-section 29(7) of the Administrative Appeals Tribunal Act 1975 which provides - "(7) 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 com- mencement of this section)." The time for making an application to the Tribunal for a review of a decision may be extended under that sub-section although that time has expired (sub-section 29(8)). During the hearing of the application the Tribunal stated that it proposed to follow the formulation by Bray C.J. in Ulowski v. Miller (1968) S.A.S.R. 277 of the principles upon which a discretion should be exercised in deciding whether an action should be dismissed for want of prosecution. His Honour said, at p. 280 - "In these cases, as perhaps might be expected, a variety of opinions has been expressed in language differing in emphasis and sometimes in substance. I do not think it necessary or desirable to attempt to canvass them case by case. It must be remembered that we are dealing here with a discretion and in my view it ought not to be fettered by any absolute or inflexible rules. It clearly appears from these cases that five paramount matters to be considered are the length of the delay, the explanation for the delay, the hardship to the plaintiff 13. . we if the action is dismissed and the cause of action left statute-barred, the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay, and the conduct of the defendant in the litigation." Reference was also made to Re Parker and the Common- wealth of Australia (No. 1) (1979) 1 CCN No 43 and Re Beardsworth and the Commonwealth of Australia (1981) CCN 79. Apart from the comment that the principles were stated by Bray C.J. in the context of litigation and, therefore, may need some re~statement in order to adapt them to proceedings before an administrative tribunal, neither party wished to contend that the matters referred to by his Honour and by the Tribunal in the cases cited were not appropriate to be considered in exercising the discretion which sub-section 29(7) of the Administrative Appeals Tribunal Act 1975 vests in the Tribunal. At the conclusion of the argument the Tribunal ordered that the time for the lodging of an application for review of the determination be extended to 18 May 1983. The reasons for reaching that conclusion were expressed as follows - "The action taken by the Commissioner in 1979, when the applicant wrote applying for an extension of time, was utterly wrong. At that time the law provided that applica- tions for extension of time for reference to the Compensation Tribunal be lodged with the Commissioner. It was not until October that 14. year that the amendment was made to provide for lodgment with the Compensation Tribunal. That letter should have been passed to the Compensation Tribunal. If the applicant had been applying to the prescribed court, that is the Workers' Compensation Commission, he would have applied directly to that court. It is entirely wrong of the Commission[er] to have failed to have passed that application at that time to the then Compensation Tribunal. It seems to me, following from that, that if there is any prejudice to the Commonwealth, it is entirely due to the action of the Com- mission[er]. Furthermore, since Telecom Australia have refused to consider a subsequent claim because it was on the same facts, a suggestion as to proper procedure would again have to be made. The prejudice to the applicant is much greater than the prejudice to the respondent. An extension of time will there- fore be granted. I will prepare a formal order of extension of time." . It is clear that the Tribunal based its decision on the failure of the Commissioner to transmit to a Compen- sation Tribunal established under the Compensation Act in the form in which it then stood what the Tribunal regarded as an application by the respondent for an extension of time under section 77 of that Act within which to serve a request on the Commissioner under section 76 for the compensation to a That circumstance was said to a reference to the Australian was due to the failure of the reference of the question of his continued entitlement to prejudice to the Commonwealth (presumably intended to be manner indicated. Finally it was said that the prejudice to the applicant, presumably that arising from the failure 15. Compensation Tribunal for reconsideration. have had the result that any Telecommunications Commission) Commissioner to act in the e of the Commissioner to transmit the application for extension of time, outweighed any prejudice suffered by the Australian Telecommunications Commission. It is also clear that the Tribunal regarded the letter dated 20 July 1979 from the respondent to the Commissioner as being an application for extension of time under section 77 of the Act which, by virtue of sub-section (4) of that section read with section 78, the Commissioner was bound to send to the Clerk of a Compensation Tribunal. In my opinion there was no basis upon which the Tribunal could properly so find. The letter is not expressed to be such an application ~ it sought an extension of time to allow the respondent to determine if he wished to have the determination of 28 June 1979 reviewed and, if so, which of the alternative courses open to him he wished to pursue. There are, in addition, other factors supporting the view that the respondent was not then seeking an extension of time to have the matter reviewed by a Compensation Tribunal. First, the letter did not set out, even in rudimentary forn, the grounds of the request as required by sub-section 77(2) and it was not accompanied, so far as the evidence shows, by the prescribed fee. That these were necessary require- ments had been conveyed to the respondent in the document attached to the Commissioner's letter to him dated 13 August 1979. Secondly, one would have expected that, had the 16. respondent regarded his letter dated 20 July 1979 as a request for extension of time to have the matter reviewed by a Compensation Tribunal, he would have taken steps to inform the Commissioner of that fact immediately upon receipt of the Commissioner's letter dated 13 August 1979. Thirdly, the respondent subsequently chose to request that the matter be reconsidered by the Commissioner (see his letter to the Commissioner dated 7 December 1979). Having taken that erroneous view of the letter dated 20 July 1979 and of the Commissioner's obligations in relation to it, the Tribunal discounted entirely the very lengthy and totally unexplained delay between the date of the determination, 18 June 1979, and the date of the application to the Tribunal for an extension of time, 7 February 1983. Further, the prejudice arising from the perceived failure of the Commissioner to fulfil his obliga- tions in relation to the letter of 20 July 1979 was regarded as outweighing whatever prejudice may have been suffered by the Australian Telecommunications Commission by reason of the delay in seeking to challenge the determination of 28 June 1979. I am, therefore, of opinion that the Tribunal took into account an irrelevant consideration and failed to give due weight to matters that were relevant to the exercise of its discretion The exercise of the discretion 17. has therefore miscarried and the decision of the Tribunal Must be set aside. The question then is what order should the Court make. Sub-section 44(4) provides that the Court, having heard and determined the appeal, may make "such order as it thinks appropriate by reason of its decision". Sub- section 44(5) provides - "Without limiting by implication the generality of sub-section (4), the orders that may be made by the Federal Court of Aus- tralia on an appeal include an order affirm- ing or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court." I have considered the submission put on behalf of the appellant that the Court should consider the application for extension of time on its merits and that on behalf of the respondent that the matter should be remitted to the Tribunal to be heard and decided again. In Minister for Immigration and Ethnic Affairs v. Gungor (1982) 42 A.L.R. 209 at pp. 220-1 Sheppard J. discussed the limitations upon the powers of the Court when hearing an appeal on a question of law under section 44 of the Administrative Appeals Tribunal Act 1975. In Director-General of Social Services v. Hangan (1982) 45 A.L.R. 23 Toohey J. at pp. 34-6 agreed with the view ex- pressed by Sheppard J. 1n the earlier case while Fitzgerald J. 18. a ston eee, at p. 48 reserved the question for further consideration. In all the circumstances I think the preferable course is to remit the matter to the Tribunal to be heard and determined again and I so order. The Tribunal will be at liberty to receive such material as the parties may desire to place before it. The respondent must pay the applicant's costs of the appeal. I certify that this and the preceding eighteen (18) pages are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Neaves. Date: 1 June 1984 lies oon Assoeiate 19.