Campbell and Military Rehabilitation and Compensation Commission
[2009] AATA 273
•23 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 273
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4705
VETERANS' APPEALS DIVISION ) Re ROBERT CAMPBELL Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date23 April 2009
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ................[Sgd].........................
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 – Decision affirmed
Commonwealth Employees’ Compensation Act 1930 (Cth) ss 9, 16
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 124
Re Siemsen and Comcare [1999] AATA 871
Re Muras and Department of Defence [1998] AATA 645, (1998) 52 ALD 579
Comcare v Luck [1999] FCA 100, (1999) 29 AAR 403
Re Buttfield and Comcare [2001] AATA 335
Re McCarthy and Comcare [2002] AATA 5
Re Tierney and Reserve Bank of Australia [1998] AATA 507, (1988) 15 ALD 534
Telstra Corporation v Roycroft [1997] FCA 774, (1997) 77 FCR 358
Secretary, Department of Defence v Gorton [2000] FCA 416, (2000) 98 FCR 497REASONS FOR DECISION
23 April 2009 Mr R G Kenny, Member BACKGROUND
1. On 26 October 2007, Mr Robert Campbell lodged a claim for liability with the Department of Veterans’ Affairs (“the Department”) in relation to a right knee problem. He alleged that the condition had developed as a result of an injury incurred during service in the Australian Army. On 10 June 2008, a delegate of the Military Rehabilitation and Compensation Group in the Department determined that the claim should be disallowed on the basis that it had been made outside of the time-frame required by s 16 of the Commonwealth Employees’ Compensation Act 1930 (“the 1930 Act”). On 3 September 2008, a delegate of the Military Rehabilitation and Compensation Commission (“the Commission”) affirmed that determination. Mr Campbell now seeks review by the Administrative Appeals Tribunal.
ISSUES AND LEGISLATION
2. The Safety, Rehabilitation and Compensation Act 1988 (“the 1988 Act”) makes provision for compensation to be paid by the Commonwealth in relation to work-related injuries or diseases for nominated classes of Commonwealth employees, including those who served in the Australian Army, where the injury occurred after 1 December 1988. This was the commencement date of the 1988 Act which also contains transitional provisioning pertaining to injuries that occurred prior to that date. In that regard, s 124 of the 1988 Act, insofar as is relevant, reads:
“Application of Act to pre-existing injuries
(1)Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the … 1930 Act …
(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a) …
(b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act – under the 1930 Act as in force when the injury, loss or damage was suffered; or
(c) …
…
(10) Where:
(a)…
(b) a claim for compensation by a person under the 1930 Act, in respect of an injury suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act, was not admissible because of section 16 of the 1930 Act;
(c) …
that person is not entitled to compensation under this Act in respect of that injury.”
3.
Mr Campbell claimed that his knee condition developed during his Army service which extended from 28 April 1955 until 28 April 1960. In the first part of that period, from 28 April 1955 until 3 August 1955, Mr Campbell was undergoing national service. He then served with the Citizens’ Military Forces (“the CMF”) until 28 April 1960. All of his service is embraced by the 1930 Act. Under s 9 of the
1930 Act, the injury must have arisen out of or occurred in the course of employment with the Commonwealth for liability to be accepted.
4. A time-frame for giving notice of and for making claim for the injury is set down in s 16(1) of the 1930 Act which reads:
“The Commissioner shall not admit a claim for compensation under this Act for an injury unless notice of the accident has been served upon him as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth, and unless the claim for compensation has been made –
(a) within six months from the occurrence of the accident; or
(b) …
Provided always that –
(i)the want of or any defect or inaccuracy in the notice shall not prevent consideration of the claim by the Commissioner if he finds that the Commonwealth is not prejudiced by the want, defect or inaccuracy, or that the want, defect or inaccuracy was occasioned by mistake, absence from Australia or other reasonable cause; and
(ii)the failure to make a claim within the period above specified shall not prevent consideration of the claim by the Commissioner if he finds that the failure was occasioned by mistake, absence from Australia or other reasonable cause.”
5. The issue for the Tribunal is whether Mr Campbell’s circumstances meet the requirements of that provision. In the event that they do not, his claim will not be considered under the Commonwealth compensation legislation.
EVIDENCE
Mr Campbell
6. Mr Campbell gave the following evidence. In CMF service, he was required to complete a camp for a fortnight each year. On 27 February 1956, while he was performing picket duty on such a camp at Holsworthy, he attempted to step over a chain which formed a gate. He tripped and fell onto his right knee. He felt immediate pain and two of his “mates” carried him to a Regimental Aid Post (“RAP”). There, his knee was bandaged, he was advised to wear a knee guard and he was given restricted duties for two days. No x-rays were taken at the time. When the camp was completed, Mr Campbell returned to his civilian work as a self-employed hairdresser. He continued to have problems with his knee afterwards, and these problems included a spasmodic giving way such that he would fall to the ground. Mr Campbell agreed that he had attended the RAP in early March 1956, shortly after his knee injury, because of problems with a finger. He agreed that he made no reference to his knee at that time.
7. Mr Campbell could not recall undergoing any medical examination at the time of his transition from national service to the CMF or at the time of his discharge from the CMF. He recalled undertaking a two week camp in 1957, but he was unable to recall any other involvement in CMF activities before he was formally discharged in 1960.
8. Shortly after the knee injury occurred, Mr Campbell was playing golf with his father. He made complaint of knee pain and his father advised him to see his medical practitioner, Dr Dobel Brown, who was with the Department of Veterans’ Affairs and who practised in Liverpool. Dr Brown told him that his knee problem was not related to his service and that he should see his local medical practitioner, Dr Jeffrey Tripp, in Liverpool. Mr Campbell saw Dr Tripp at that time and was advised by him to wear a knee guard when it was needed. From then on, Mr Campbell was physically active and enjoyed golf, rock-fishing, running, playing backyard football with his children, water-skiing and driving a speed boat in water‑skiing activities. He drove the boat over a period of 25 years and ceased the activity in about 1993, some 15 years before the hearing. He experienced a “locking-up” of his knee whilst swimming in the early 1980s and obtained a referral to an orthopaedic specialist, Dr Sloan, who performed surgery to remove the knee cartilage at the Bigge Street Private Hospital. This was in 1982. At that time, he was advised that he would develop arthritis in the knee joint. Mr Campbell received no further treatment for his knee.
9. In 2007, Mr Campbell attended an Anzac Day march and conveyed his feelings of knee pain to others involved in the parade. He was told at that time that he was able to make a claim for compensation against the Commonwealth in relation to his knee injury. He said that was the first that he realised that such an avenue was open to him.
Mr Paul Ontong
10.
Mr Ontong is the Director of the Reconsideration and Appeals section of the Commission. He is based in Canberra and gave evidence by telephone. Mr Ontong completed a statement on 17 March 2009. Mr Ontong’s opinion was that Mr Campbell’s delay in lodging a claim for compensation in respect of his knee condition has prejudiced the Commonwealth because it had been unable to properly investigate the circumstances with respect to the applicant’s claimed condition. There was no available incident report or other contemporaneous documentation which referred to any factual details relating to Mr Campbell’s fall on
27 February 1956. He referred to the difficulty in identifying the medical officer who completed the “sick report” dated 28 February 1956 and to the consequential difficulty of obtaining clarifying information about the injury. In any event, Mr Ontong believed, it was unlikely that the medical officer would be in a position to recall the injury or the treatment given after a period of some 53 years. Mr Ontong noted that there had been no opportunity to have Mr Campbell medically examined for that 53 year period.
11. Mr Ontong also wrote in his statement that medical practitioners who treated Mr Campbell for his knee in 1956 were now deceased and that no records were available from the Bigge Street Private Hospital where surgery was undertaken in 1982. Again, Mr Ontong considered that this also added to the prejudice to the Commonwealth in preventing a full investigation of treatment provided to Mr Campbell over the years.
12. Mr Ontong noted that steps had been taken to have Mr Campbell examined by physician, Dr Phillip Vecchio. Dr Vecchio’s opinion was that Mr Campbell currently suffers from osteoarthritis of the right knee and that, at the time of the fall in 1956, it was likely that he injured his right medial meniscus. However, he opined that any diagnosis of a medial meniscus tear was unconfirmed.
Ms Jolene Hughes
13. Ms Hughes is employed by the respondent’s instructing solicitors. She completed a report, dated 17 March 2009, which records her attempts to obtain current information in relation to Dr Brown, Dr Tripp and the Bigge Street Private Hospital. Her searches were conducted via the use of telephone records, online means including Google, and telephone contact. Ms Hughes’ searches revealed no current records for Dr Brown or Dr Tripp. She learned that the Bigge Street Private Hospital is now known as the Sydney Southwest Private Hospital and that no records were held in relation to matters more than 10 years old.
Dr Phillip Vecchio
14.
Dr Vecchio saw Mr Campbell on 14 April 2008 and his report was completed on 25 April 2008. Dr Vecchio took a history from Mr Campbell. That history is recounted in his report and is in terms consistent with the evidence provided by
Mr Campbell at the hearing. Dr Vecchio referred to the fall, the RAP report, the two days of light duties directed by the medical officer and the absence of any x-rays at the time. Dr Vecchio also noted continuing knee discomfort with occasional giving way thereafter and the meniscectomy procedure in 1982.
15. Dr Vecchio’s opinion was that Mr Campbell has established right knee osteoarthritis which originated during a heavy impact injury resulting from the incident in February 1956. He considered that it was highly likely that the injury resulted in cartilage and meniscal damage at that time. He diagnosed two conditions: right knee osteoarthritis; and likely (although unconfirmed) medial meniscus tear. The former was described as a sequela of the latter, and Dr Vecchio summarised that by stating:
“It is likely that Mr Campbell injured his right medial meniscus during a direct impact injury at Holsworthy after tripping on a chain fence on 27 February 1956. This condition later required a meniscectomy, in 1982 which further predisposed to the osteodegenerative right knee conditions, currently recognised.”
16. Dr Vecchio went on to recount the limitations that Mr Campbell experiences because of his knee condition and to express an opinion on the extent of impairment that he suffers.
Other Evidence
17. Copies of Mr Campbell’s service medical records were in evidence. These included his entry record, but there was no copy of any discharge medical record. Also included in the applicant’s service records were copies of several RAP “sick reports”. One of these is dated 28 February 1956. It describes the diagnosis as “TRAUMA RT KNEE [NO SERIOUS INJURY”. For treatment, it declares “NO NEED FOR INVEST – NO NEED FOR X-RAY]”. The report recommends light duties for two days. Subsequent reports, in March 1956, refer to finger injuries, but no reference is made to Mr Campbell’s right knee condition.
18.
Mr Campbell’s claim form was also in evidence. It nominates the date of injury as being 27 February 1956 and the RAP attendance date as the following day. That was also the history detailed in a written submission completed by
Mr Mark Anderson, an advocate with the Returned & Services League of Australia (“RSL”) on 19 November 2007. There, Mr Anderson wrote that the injury was reported to the picket commander who relieved Mr Campbell of further duties that night and that Mr Campbell attended the RAP on the following day.
19. Statements signed by Mr Campbell were also in evidence. These were dictated by him to his wife. They are undated but were marked as being received by the Tribunal on 27 November 2008 and 13 February 2009, respectively. The later statement refers to events after Mr Campbell left the CMF. The earlier statement describes the fall over the chain and the visit to the RAP on 28 February 1956. It also refers to subsequent RAP attendances for a finger injury in March 1956. It also recounts that he made further complaint about his knee on those occasions and was advised to continue with the use of a knee guard.
SUBMISSIONS
Ms Frizelle
20. Ms Frizelle, counsel for the applicant, submitted that the notice requirements of the legislation were met by the existence of an Army record of treatment of Mr Campbell’s injury on 28 February 1956. She said that the claim requirement was met because all that was needed was for it to be entertained by the respondent and that this had been done through the processing of the claim. She added that the Commonwealth had done more than that and had investigated the incident by obtaining the report from Dr Vecchio. Ms Frizelle contended that the Commonwealth has not used its best endeavours to attempt to investigate relevant medical and hospital records by relying only on the sources accessed by Ms Hughes in preparing her statement.
21. Further, Ms Frizelle submitted that, if the notice and claim requirements were not met, it was due to a mistake by Mr Campbell in not realising that notice had to be given or that a claim could be made. She said that this mistaken belief continued until Anzac Day 2007 when Mr Campbell became aware of his right to make a claim. Ms Frizelle denied any prejudice to the Commonwealth because, again, the claim had been entertained by the Commonwealth. She pointed to the favourable evidence of Dr Vecchio as demonstrating that the Commonwealth would not be prejudiced by the delay in the claim. She submitted that the reference to events on both 27 February 1956 and 28 February 1956 could be explained by the extension of Mr Campbell’s picket duty through the night and attendance at the RAP in the following morning.
22. As for causation, Ms Frizelle submitted that this was established by Dr Vecchio, who described osteoarthritis which was initially caused by the 1956 fall and was aggravated by the surgical treatment in 1982.
23. Ms Frizelle referred to the absence of any discharge medical record which may have supported the continuing effect of the knee injury. She submitted that this was unusual and that, as the compensation legislation was to be interpreted in a beneficial manner, any doubts about Mr Campbell’s claim should be resolved in favour of Mr Campbell.
Mr Clark
24. Mr Clark, counsel for the respondent, submitted that s 16 of the 1930 Act required both a notice to be given to the respondent and a claim to be lodged within relevant time-frames. He contended that the attendance at the RAP and the record of attendance did not constitute the giving of notice to the respondent. He also submitted that there was no mistake made by Mr Campbell in relation to his right to claim and that the delay was attributable, rather, to ignorance on his part about claiming under the compensation legislation.
25. Mr Clark disputed Ms Frizelle's contention that, in order to meet the notice and claim requirements, it had been sufficient to entertain Mr Campbell's application. He submitted that there was a duty on the Commonwealth to attempt an investigation and that this had been done through Ms Hughes’ searches and Dr Vecchio’s report. He submitted that these investigations had demonstrated the problems associated with dealing with Mr Campbell allegations. In this respect, Mr Clark noted that Dr Vecchio’s opinion was based on the facts as alleged by Mr Campbell and did not constitute any investigation of the factual background to Mr Campbell’s allegations.
26. In relation to prejudice, Mr Clark relied upon the evidence of Mr Ontong and the long time-frame of more than 50 years between Mr Campbell’s CMF service and the lodgement of his claim in 2007. He also referred to Ms Hughes’ unsuccessful attempts to locate the medical practitioners who treated Mr Campbell and the absence of any files from the hospital at which he was treated in 1982. In any event, he submitted, even if it were possible to track down these individuals, the length of time would cast doubt on their capacity to have reasonable recall of the events that occurred.
27. Mr Clark submitted that much had occurred to the applicant in the 53 years since the time of alleged injury and which may have impact on his knee. In this regard, he referred to the range of sporting activities engaged in by Mr Campbell over the years.
CONSIDERATION
28. Under s 16(1) of the 1930 Act, notice of an accident must be given as soon as practicable after it has happened and before the employee voluntarily left the employment of the Commonwealth. It also requires a claim for compensation to be made within six months of the occurrence of the accident.
29.
The requirements in relation to the notice are set out in s 16(2) of the
1930 Act. The notice is to contain particulars of the person as well as a statement, in ordinary language, of the cause of the injury and the time when it happened. The evident purpose of that provision is to ensure that the respondent is made aware of not only the fact of the injury but also the background to it. This is so that appropriate investigations might be undertaken.
30.
There have been circumstances where an entry in medical documentation has been found to be sufficient to constitute a notice of an injury under the 1930 Act. That was the case in Re Siemsen and Comcare [1999] AATA 871. However, there, the Tribunal found that the records disclosed the information required by s 16(2) of the 1930 Act. That is not the situation with Mr Campbell. The RAP entry of
28 February 1956 provides no insight into how the treated knee condition originated. It is not disputed that no other form of notice was provided until the claim for rehabilitation or compensation was lodged in 2007. In the absence of relevant particulars and statement, notice has not been given for the purposes of s 16(2) of the 1930 Act before 26 October 2007: see Re Muras and Department of Defence [1998] AATA 645, (1998) 52 ALD 579 at 582.
31.
The time-frame for making the claim is set out in s 16(1)(a) of the Act. It must be made within six months from the occurrence of the accident. Again, the claim was not made until 26 October 2007 and, therefore, well outside required time-limit. I am satisfied that the document lodged by Mr Campbell on 26 October 2007 constitutes both a notice and a claim for the purposes the 1930 Act:
see Comcare v Luck [1999] FCA 100, (1999) 29 AAR 403 at 417;
Re Buttfield and Comcare[2001] AATA 335; and Re McCarthy and Comcare
[2002] AATA 5.32. Even though the notice and claim were outside of the time-frames referred to in s 16(1) of the 1930 Act that, alone, does not preclude a consideration of the claim under that provision. It may still be considered if the want of timely notice does not prejudice the respondent or was occasioned by mistake, absence from Australia or other reasonable cause and if the failure to make a claim within the relevant period was due to mistake, absence from Australia or other reasonable cause.
33. In relation to the issue of prejudice to the respondent, I note the decision of the Tribunal in Re Tierney and Reserve Bank of Australia [1998] AATA 507,
(1988) 15 ALD 534 where, at 535, the following reference is made to the purpose of the notice requirement as it appears in s 53(1) of the 1988 Act, which is not materially different from the provision under consideration in the 1930 Act:“Section 53 is clearly intended to protect the Commonwealth and its instrumentalities from being placed in a situation where they are unable to disprove an employee’s assertion of an injury alleged to have occurred on some specific occasion in the course of the employee’s work or of a disease contracted because of some brief and transient situation. Some such provision is clearly needed to prevent abuse of the Act.”
34. I do not accept the contention of Ms Frizelle that the Commonwealth has not used its best endeavours to attempt to investigate records of Mr Campbell’s medical treatment. In particular, she noted that discharge medical reports had not been located. However, Mr Campbell’s evidence was that he had no memory of being examined on transition to the CMF or on finally discharging from the CMF. Ms Hughes was unable to locate either Dr Brown or Dr Tripp. That is not surprising as, on Mr Campbell’s evidence, they have both passed away. In relation to the records from the Bigge Street Private Hospital, Ms Hughes learned that records more than 10 years old were no longer kept by the hospital’s successor. That included the files relating to Mr Campbell’s hospitalisation in 1982.
35.
I accept Mr Ontong’s evidence of the difficulties facing an enquiry into the details of what occurred to Mr Campbell on 27 February 1956. Even the course of events on the date of the injury is not entirely clear. Mr Campbell referred to being taken directly to the RAP by friends. Those friends have not been identified. Ms Frizelle submitted that Mr Campbell may have worked through the night of
27 February 1956 and attended the RAP the following morning. However, that does not accord with the submission of Mr Campbell’s RSL advocate, Mr Anderson, who wrote that the injury was reported to the picket commander who relieved Mr Campbell of further duties that night and that Mr Campbell attended the RAP on the following day. Similarly, there is inconsistency in Mr Campbell’s evidence about what transpired during his subsequent RAP contact for his finger injury. In his statement, he said that he referred again to his knee injury at that time. In his evidence, he said that he did not do so. Given those inconsistencies, I accept as correct Mr Ontong’s belief that the location of witnesses would not necessarily mean that they would have a meaningful recollection of an event which occurred some 53 years earlier.
36. Dr Vecchio’s evidence is that the fall in February 1956 was the initiating cause of Mr Campbell’s subsequent knee problem. I have some concerns with his conclusion. He wrote that Mr Campbell’s heavy impact injury was highly likely to have resulted in cartilage and meniscus damage at that time and lead to the development of osteoarthritis report. Yet, in the same report, he described an “unconfirmed” medial meniscus tear. However, the main concern I have with Dr Vecchio’s report is that it relies on a history provided by Mr Campbell. That is the very history which the respondent has been unable to investigate because of the passage of time, the unavailability of contemporaneous records, and the absence of any witnesses. Further, Dr Vecchio has not made reference to the wide range of physical activities engaged in by Mr Campbell in the years following his CMF service in 1960 and lasting until approximately 1993.
37. I am satisfied that, if the claim were to proceed, the respondent would be placed in a position where it would be prejudiced in its capacity to investigate what incidents occurred during Mr Campbell’s CMF service or what medical treatment he subsequently received in relation to his knee. The respondent has not been given the opportunity to investigate the matter in a timely manner, and I am satisfied that it would be prejudiced if it were required to do so more than 50 years after the incidents of causation are alleged to have occurred.
38. The matter may still proceed if Mr Campbell’s failure to give notice or make a claim in the required time-frames was due to mistake, absence from Australia, or other reasonable cause[1].
[1] See s 16(1) provisos (i)and (ii) of the 1930 Act.
39.
Commonwealth compensation legislation distinguishes between ignorance and mistake with only the latter being of relevance under the 1930 Act. Distinction between the two concepts was referred to in Telstra Corporation v Roycroft
[1997] FCA 774, (1997) 77 FCR 358 by North J, at 364-5, who described the relevant authorities as establishing the following propositions:
“1. A person who is not aware of a right to claim compensation at all is not mistaken about the right, but ignorant of it: Roles v Pascall & Sons [1911] 1 KB 982.
2. A person who knows that he has a right to claim compensation for one sort of injury, but no idea whether or not he has a right to claim for another, is not mistaken as to his right to claim for the second type of injury, but is ignorant of it: Commonwealth of Australia v Connors (1989) 86 ALR 247.
3. A person who knows he has a right to claim compensation for one sort of injury, and wrongly believes that he has no right to claim for another type of injury, is mistaken as to the right to claim for the second type of injury: Stevenson v Metropolitan Meat Industry Commission (1936) 37 SR (NSW) 109.
4. It follows from these authorities that a person who knows he has a right to claim compensation for the particular injury and knows that the time for making the claim is limited, but wrongly believes he has more time to make a claim than the Act allows, is mistaken as to the time for making the claim.”
40. His Honour went on to point out that there was a thin line between mistake and ignorance but, at 367, said:
“If a person acts on the basis of knowledge of the Act and that knowledge is wrong, or the facts upon which the person relies are wrong, then the person has made a mistake. If a person acts without any knowledge about the Act or an aspect of it, and consequently does not know whether or not it applies, then the person is ignorant.”
41. In this case, it was contended that Mr Campbell was mistaken about his right to make a claim. The alleged source of this mistake was an opinion expressed by the medical practitioner of Mr Campbell’s father, Dr Brown, shortly after the injury in 1956. It is not clear what precise advice was provided by Dr Brown. What is clear is Mr Campbell’s evidence that he was unaware that he could make a claim until Anzac Day 2007. As I understand his evidence, this was a situation embraced by the first of the propositions listed above by North J. I am satisfied that Mr Campbell was ignorant of his right to make a claim under the Commonwealth’s compensation legislation until this was related to him on Anzac Day 2007. In that sense, he was ignorant of that right, and this does not serve to overcome the delay in giving notice or of making a claim for his knee condition.
42. The issue of the applicant’s absence from Australia does not arise in this case and no contentions were raised in relation to other reasonable cause for late notice and claim. On the material before me, I am satisfied that neither of these bases enable Mr Campbell’s late claim to be dealt with under the 1930 Act.
43. I accept Ms Frizelle’s submission that the 1930 Act is in a category of legislation that is afforded beneficial interpretation where that is open in a particular case[2]. However, the legislative purpose of s 16 of the 1930 Act is clear[3], and I am satisfied that no ambiguity arises from applying that provision in accordance with its terms rather than in a manner which would be inconsistent with that purpose[4].
[2] See, for example, Secretary, Department of Defence v Gorton [2000] FCA 416, (2000) 98 FCR 497.
[3] See [33] of these reasons.
[4] See Secretary, Department of Defence v Gorton [2000] FCA 416, (2000) 98 FCR 497 at 512.
44.
I am satisfied that the notice and claim requirements under s 16 of the
1930 Act have not been met by Mr Campbell. Therefore, his claim is not to be considered by the respondent. This means that the decision under review is affirmed.
DECISION
45. The Tribunal affirms the decision under review.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member.
Signed: ...........[Sgd].................................................................
Michael Buckingham, AssociateDate of Hearing 7 April 2009
Date of Decision 23 April 2009
Counsel for the applicant Ms A Frizelle
Solicitor for the applicant G Couper Solicitors
Counsel for the respondent Mr C Clark
Solicitor for the respondent Sparke Helmore Lawyers
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