Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 957
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/590
GENERAL ADMINISTRATIVE DIVISION )
Re JOHN BLUNDEN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date26 September 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. (Sgd) RG Kenny
Member
CATCHWORDS
WORKERS COMPENSATION – alleged injury or disease occurring prior to commencement of Safety, Rehabilitation and Compensation Act 1988 – Transitional provisions – whether notice of injury given as soon as practicable under Commonwealth Employees’ Compensation Act 1930 – whether Commonwealth prejudiced by want of notice – whether want of defect of notice due to mistake or other reasonable cause – failure to make claim within specified period – whether failure to make claim due to mistake or other reasonable cause
Commonwealth Employees’ Compensation Act 1930 ss 9, 16
Safety, Rehabilitation and Compensation Act 1988 s 124
Re Buttfield and Comcare [2001] AATA 335
Comcare v Luck (1999) 29 AAR 403
Commonwealth v Connors (1989) 86 ALR 247
Re McCarthy and Comcare [2002] AATA 5
Re Harbutt and Department of Defence (1998) 51 ALD 159
Re Muras and Department of Defence (1988) 52 ALD 579
Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534
Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665
Re Siemsen and Comcare [1999] AATA 871
Telstra Corporation v Roycroft [1997] FCA 774REASONS FOR DECISION
26 September 2003 Mr RG Kenny, Member Background
1. On 9 May 2001, John Blunden (the applicant) lodged a “Claim for Rehabilitation and Compensation” to which he attached various medical reports pertaining to his service in the Royal Australian Navy and a medical report, dated 23 April 2001, from Dr Diana Lange, Psychiatrist, in which she described him as suffering from paranoid schizophrenia. It was the applicant’s contention that the condition had developed as a result of aspects of his service in the Navy.
2. On 13 February 2002, a delegate with the Military Compensation and Rehabilitation Service determined that the claim should be disallowed and, on 28 May 2002, another delegate affirmed that decision.
3. On 9 July 2002, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal) and the matter is to be determined under the Administrative Appeals Tribunal Act 1975 (the AAT Act).
Appearances
4. The applicant was represented by Mr R Hume of Counsel. Comcare (the respondent) was represented by Mr C Clark of Counsel.
5. The following material was tendered and taken into evidence:
Exhibit 1 - the documents prepared in accordance with section 37 of the AAT Act (“T” Documents – T1 to T26);
Exhibit 2 - a medical report, dated 17 October 2002, from Dr D Lange;
Exhibit 3 - a statement, dated 4 October 2002, by the applicant;
Exhibit 4 - a statement, dated 29 October 2002, from Mr R Hume;
Exhibit 5 - documents relating to the applicant’s service with the Royal Australian Navy;
Exhibit 6 - an affidavit, dated…
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- Blunden and Comcare [2003] AATA 957
- Case
- [2003] AATA 957
- Decision Date
CaseChat Overview and Summary
The central issue before the court was whether the appellant's claim for compensation was barred by s 124(1)(b) of the 1988 Act due to the failure to give notice of his injury as soon as practicable under s 9 of the 1930 Act. The court had to consider whether the appellant could have given notice as soon as practicable and whether there was a reasonable cause for the failure to make a claim within the specified period. The court also had to consider the transitional provisions of the 1988 Act and the decision in Comcare v Luck (1999) 29 AAR 403.
The court held that the Tribunal had correctly found that the appellant's claim was barred by s 124(1)(b) of the 1988 Act. The court found that the appellant did not give notice of his injury as soon as practicable under s 9 of the 1930 Act and that there was no reasonable cause for the failure to make a claim within the specified period. The court held that the transitional provisions of the 1988 Act did not apply to the appellant's claim and that the decision in Comcare v Luck (1999) 29 AAR 403 was distinguishable from the present case. The court held that the appellant's failure to give notice of his injury as soon as practicable and his failure to make a claim within the specified period amounted to a breach of the conditions of his employment and that the Commonwealth was prejudiced by the want of notice. The court held that the appellant's claim was properly dismissed by the Tribunal.
The Tribunal's decision was affirmed. The appellant's claim for compensation was dismissed.
Orders
Orders of the court
The Tribunal affirms the decision under review.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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