JUDGMENT No. sone 2d. TH * @0deccescvccceverel eenncesenece CATCHWORDS ADMINISTRATIVE LAW - Administrative Appeals Tribunal allows extension of three years for application for review - whether error of law - whether evidence to support findings of fact. Administrative Appeals Tribunal Act - s.29(7) 'He v are (1993) 18 AAR 22 ev A' nm (1993) 18 AAR 366 Hunter Valley Developments Pty Ltd vw Cohen (1984) 3 FCR 344 IRPORA* IMITED v_ALEX VSK No. NG 472 of 1994 RECEIVED Sackville J. 21 October 1994 25 OCT 1994 Sydney. FEDERAL COURT OF PRINCIPAL REGISTRY FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. 472 of 1994 GENERAL DIVISION ) BETWEEN: TELSTRA CORPORATION LIMITED Applicant AND: ALEX RAZMOVSKI Respondent CORAM: SACKVILLE J. PLACE: SYDNEY DATE: 21 OCTOBER 1994 MI E: F_ ORDER Ts The application should be dismissed with costs. NOTE: Settlement and entry of orders is dealt with in . Order 36 of the Federal Court Rules. FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 472 of 1994 GENERAL DIVISION ) BETWEEN: TELSTRA CORPORATION LIMITED Applicant AND: ALEX RAZMOVSKI Respondent CORAM: SACKVILLE J. PLACE: SYDNEY DATE: 21 OCTOBER 1994 NS FOR NT Introduction The applicant, Telstra Corporatio Ltd, ("Telstra") appeals to this Court, pursuant to s.44(1) of the Administrative Appeals Tribuna] 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. 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. The Alleged Errors of Law An appeal under s.44(1) of the Act against a decision of the AAT can be made o sy on a questior of law. As I iaderstood 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 80} ~' tan wehbe wavibesinteh Putlte hi fZe yids Seamer lhe LO Shae SS itieadlsisattont: 4 : Seal eads< (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. The Facts Some brief factual background is ag sropriate. The rezpondent 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. 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. 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. 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. ee Oe RE 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. 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 Marcr 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. 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...." 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. Principles lie AA' The AAT stated that it was mindful of the "guiding principles" adopted by Wilcox J. in Hunter Valley Developments Pty Ltd v Cohen (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 ¢) 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." Mr Gleeson did not suggest that this was an inaccurate summary of the principles articulated by Wilcox J. 4" 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...." 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 8.29(7) that an acceptable explanation be given for delay: Comcare v_ A''Hearn (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} 1 VR 297 at 302 per Brooking J, with whom Fullagar and Tadgell JJ agreed; cf Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 and Maric v Comcare (1993) 40 FCR 244; 17 AAR 259 at 247-249; 261-262." I should add that neither counsel referred in argument to the Full Court's decision. 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 vy 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. 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." 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. 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. Evidence 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) 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) 116 CLR 644, at 654; Australian Broadcasting Tribunal v Bond (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. 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. 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. 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." 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 fTribunal 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." 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. 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. 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. A Decision? 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 vw Chaney (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. sion In my opinion no error of law has been disclosed in the decision of the AAT. Accordingly, the application should be dismissed with costs. I certify that this and the preceding 13 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville. Dated: 21 October, 1994 Heard: 21 October 1994 Place: Sydney Decision: 21 October 1994 Appearances: Mr J. Gleeson QC and Mr S&S. Diamond, instructed by Sparke Helmore, Solicitors, appeared for the applicant. Mr L.T. Grey, instructed by McClellands, Solicitors, appeared for the respondent. ve