Broadbent and Military Rehabilitation and Compensation Commission

[2005] AATA 525

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 525

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   D2004/35

VETERANS APPEALS DIVISION		)
Re		HARRY ROBERT BROADBENT

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date6 June 2005

PlaceBrisbane

Decision The application for an extension of time to lodge an appeal is denied.

.....................[Sgd]......................

SENIOR MEMBER

CATCHWORDS

PRACTICE AND PROCEDURE – Application for review – application for an extension of time to lodge application – application lodged 31 years after the original decision – applicant’s reasons for delay considered – prejudice to the Commonwealth – prejudice to the applicant’s case – substantive merits of the case considered – application for extension of time refused.

Compensation (Commonwealth Employees) Act 1971

Veterans’ Entitlements Act 1986

Safety Rehabilitation and Compensation Act 1988

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315

Re Manoli and Department of Social Security (1994) 35 ALD 133; (1994) 80 SSR 1162b

Comcare v A'Hearn (1993) 45 FCR 441; (1993) 119 ALR 85; (1993) 18 AAR 366

Maric and Comcare (1993) 40 FCR 244; (1993) 17 AAR 259

REASONS FOR DECISION

6 June 2005  Senior Member B J McCabe

Background

1.      The applicant served in the Australian Army from 16 May 1960 to 30 May 1983. He lodged a compensation claim under the Compensation (Commonwealth Employees) Act 1971 (the 1971 Act) on 22 November 1972 for ankylosing spondylitis. On 23 July 1973 a delegate of the Commissioner for Employees’ Compensation determined the Applicant’s claimed ankylosing spondylitis condition was constitutional and not service related. The applicant was duly informed of his rights to appeal. The applicant did not appeal the decision of the delegate within the time frame allowed under Part V of the 1971 Act.

2.      The applicant has a number of accepted conditions under the Veterans’ Entitlements Act 1986 (the VEA) and is currently in receipt of a pension at the special rate. One accepted condition is ankylosing spondylosis. On 11 November 1969 the Repatriation Board determined spondylitis ankylopoietica (later amended by the Repatriation Commission to ankylosing spondylitis) was not related to the applicant’s service. On 23 November 1982 the Repatriation Commission accepted incapacity resulting from ankylosing spondylitis. This determination took effect from 9 March 1982.

3.      On 15 September 2003 the applicant lodged a claim for compensation under the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) for ankylosing spondylitis. The applicant is seeking compensation for the period prior to 1982 which is not compensable by the Department of Veterans’ Affairs. The applicant has asked the Tribunal for an extension of time to review the original 1973 decision.

4.      A telephone hearing to discuss the extension of time was held on 19 January 2005. This hearing was adjourned for two weeks to allow the parties to file and serve any relevant documents and submissions relevant for the extension of time. The telephone hearing was reconvened on 9 February 2005. Information contained in the documents supplied by the applicant detail the history of his claim.

The discretion

5. Section 29(7) of the Administrative Appeals Tribunal Act 1975 gives the Tribunal the discretion to allow an applicant an extension of time. The Federal Court has laid down principles to guide the exercise of the discretion in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. The issues I must consider are: the applicant’s excuse for his delay; any prejudice that would be suffered by the respondent resulting from the passage of time; and the underlying merits of the substantive application.

Excuse

6.      At the first telephone hearing the applicant was asked why there was a delay of over 31 years in seeking review of the 1973 determination. He said he was unaware of the right to appeal the determination. The applicant said he only became aware of the possibility of an appeal when assisting advocates at the Darwin branch of the Returned Servicemen’s League. The applicant had no legal representative at the time of receiving the 1973 determination.

7.      The applicant’s excuse is not particularly satisfactory, but this is not fatal to his application: see Comcare v A’Hearn (1993) 45 FCR 441.

Prejudice

8.      The question of prejudice to the Commonwealth is important given the length of delay. The determination subject to this extension of time for a review was made on 23 July 1973 - over 31 years ago. The passage of time can greatly prejudice the Commonwealth’s case. Evidence can be lost or destroyed and personal recollections of events can fade.

9.      At the telephone hearing the respondent said relevant file information is no longer available. The respondent expressed concern that there has been ample time for contributing factors to intervene in the applicant’s medical condition. The respondent has been unable to monitor such occurrences. It was also submitted that meaningful information can no longer be obtained and if such attempts were made new medical opinions sought would be highly speculative.

10.     The respondent raised the case of Maric and Comcare (1993) 40 FCR 244. That case involved a delay of just under 3 years. The delay was in part due to the acts or omission of his legal advisers. In Maric and Comcare O’Loughlin J found “the delays were gross” (at 249) and that it would be unreasonable to require the respondent in that case to defend their decision after such a long time.

11.     Prejudice to the Commonwealth clearly exists in the present case. There has been an extraordinary delay which will make it harder for the Commonwealth to defend the claim. It would be difficult to find a more obvious case where an applicant has rested on his rights.

Merits

12.     I now turn to the merits of the substantive case. The respondent has raised the fact s 5(10) of the SRC Act may be invoked in the present case. Section 5(10) prevents a person claiming compensation under the SRC Act where he receives a pension for conditions accepted as war-caused under the VEA. The applicant has a number of accepted claims under the VEA including ankylosing spondylitis. While I am reluctant to form a concluded view on this point, the applicant’s claim does not appear to be a strong one.

Conclusion

13.     While adherence to time limits is important, the Tribunal will often view applications for an extension of time sympathetically where the applicant has a strong case – particularly where the delay is short. That is not the case here. I am satisfied in all the circumstances that an extension should not be granted. I have considered the relevant factors raised by Wilcox J in Hunter Valley Developments. I have taken into account the evidence of the applicant and the submissions of the respondent. In the circumstances I do not propose to exercise the discretion to permit an extension of time under s 29 of the Administrative Appeals Tribunal Act 1975.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate:      Sam J Appleton

Dates of Hearing  19 January 2005
  9 February 2005
Date of Decision  6 June 2005
The applicant appeared in person.
The respondent was represented by Mr Wilson.