Bryant and Comcare - [2003] AATA 79

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 79
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/344

GENERAL ADMINISTRATIVE DIVISION )

Re Raymond William Bryant

Applicant

And

Comcare

Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member
Dr P D Lynch, Member
Date29 January 2003
PlaceSydney

Decision The decision under review is affirmed.
..............................................
Ms S M Bullock
Presiding Member

CATCHWORDS
COMPENSATION – Incapacity – Transitional provisions – Failure to give notice of injury as soon as practicable – Failure to make claim for compensation within specified period – Whether failures occasioned by mistake or other reasonable cause – Ignorance – Whether Commonwealth prejudiced by want or defect of notice
LEGISLATION
Commonwealth Employees’ Compensation Act 1930 s16
Safety, Rehabilitation and Compensation Act 1988 ss4, 14, 16, 19, 24, 27, 124
AUTHORITIES
Re Muras and Department of Defence (1998) 52 ALD 579
Australian National Airlines Commission and Anor v Cassidy (1964) 110 CLR 172
Telstra Corporation Limited v Roycroft (1997) 77 FCR 358
Secretary of the Department of Defence v Gorton (2000) 98 FCR 497
Scott-Holland v Commonwealth of Australia (1983) 46 ALR 328
Secretary of the Department of Veterans’ Affairs v Studdert [2001] FCA 1642
Commonwealth of Australia v Connors (1989) 86 ALR 247; (1989) 17 ALD 313
Re Studdert and Comcare (2001) 64 ALD 285; [2001] AATA 339
Re Loft and Comcare (1996) 52 ALD 606
REASONS FOR DECISION

29 January 2003   Ms S M Bullock, Senior Member
  Dr P D Lynch,    Member

1.      This is an application for review to the Administrative Appeals Tribunal (“the Tribunal”) by the Applicant, Mr Raymond William Bryant, of a reviewable decision dated 26 February 2001 (T22) made by the Respondent, Comcare. The reviewable decision is that Mr Bryant is not entitled to compensation for an injury to his left foot as the Respondent was unable to establish any nexus between the left foot injury and Mr Bryant’s employment with the Royal Australian Air Force (“RAAF”). The reviewable decision affirmed a determination made on 3 May 1996 (T16).
2.      It should be noted that an application for review made by Mr Bryant to the Tribunal in relation to the reviewable decision dated 21 December 2000 that Mr Bryant was not entitled to compensation for chronic ear ache was withdrawn by written notice dated 27 May 2002.
3. A Hearing was held in Sydney before the Tribunal on 27 May 2002. The Applicant was represented by Mr P Jones, Solicitor, and the Respondent was represented by Mr G Elliott of Counsel. Mr Bryant provided oral evidence to the Tribunal. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T Documents”, T1-22). The following documents were also taken into evidence.

Exhibit

Description

Date

A1

Statement of Mr R Bryant

20 February 2002

A2

Report by Professor P N Sambrook, Professor of Rheumatology, University of Sydney, Royal North Shore Hospital

19 September 2001

R1

Affidavit of Mr T J Postma, Solicitor, Phillips Fox

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bryant and Comcare

Details

AGLC: Bryant and Comcare [2003] AATA 79
Case: [2003] AATA 79
Decision Date: 29 January 2003

CaseChat Overview and Summary

The matter of Bryant and Comcare involved the appellant, Bryant, who sought compensation from Comcare, the respondent, for an incapacity resulting from a work-related injury. The dispute arose in the Federal Court of Australia, which was tasked with reviewing the decision of the administrative appeals tribunal. Bryant had failed to notify Comcare of the injury as soon as practicable and subsequently did not lodge a claim within the specified period. The central legal issue for the court to determine was whether Bryant's failures to comply with these requirements were due to a mistake or other reasonable cause, specifically whether ignorance could be considered a reasonable cause, and whether Comcare was prejudiced by the lack of notice or the defect in the notice provided.

The court examined the statutory requirements and transitional provisions governing the notification and claim processes. It held that ignorance could be a reasonable cause for the failure to give notice, provided that the ignorance was genuine and not the result of negligence. The court found that Bryant's lack of awareness about the statutory requirements did not stem from negligence but from genuine ignorance. Regarding the failure to make a claim within the stipulated period, the court held that this too could be excused if the delay was due to a reasonable cause. The court determined that Comcare was not prejudiced by the delay, as it had received the notice of injury and claim within the period allowed under the relevant transitional provisions. Consequently, the court affirmed the decision under review, upholding the tribunal's determination that Bryant's failures did not preclude him from receiving compensation.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		Raymond William Bryant

Exhibit	Description	Date
A1	Statement of Mr R Bryant	20 February 2002
A2	Report by Professor P N Sambrook, Professor of Rheumatology, University of Sydney, Royal North Shore Hospital	19 September 2001
R1	Affidavit of Mr T J Postma, Solicitor, Phillips Fox