Delahunty and Comcare

[2003] AATA 1148

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1148

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1649

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MAXWELL PHILLIP DELAHUNTY

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member, G Ettinger

Date14 November 2003

PlaceSydney

Decision Pursuant to section 33 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides, for the reasons given orally, not to exercise the discretion to grant an extension of time for the Applicant pursuant to section 29(7) of the Act, for the lodgment of an application for review of the refusal of liability by the Respondent made in March 2002.

[Sgd] G Ettinger
  Senior Member

CATCHWORDS

EXTENSION OF TIME – applicant for extension of time to lodge claim against a decision denying liability for a psychological injury – no satisfactory reason given for delay – merits of the case low – prejudice to the Respondent – application denied

LEGISALTION

Administrative Appeals Tribunal Act 1975, subsection 29(7)

CASES

Hunter Valley Developments Pty Limited and Others v Minister for Home Affairs and Environment (1984) 58 ALR 305

REASONS FOR DECISION

Ms G Ettinger, Senior Member                 

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. The Respondent pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. 

3.        The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N03/1649
By  MS G. ETTINGER, Senior Member
MAXWELL DELAHUNTY v COMCARE
SYDNEY, FRIDAY, 14 NOVEMBER, 2003

MS ETTINGER:   This is the decision in the matter of Dalahunty.

The task before the Administrative Appeals Tribunal which I shall refer to as the Tribunal, was to deal with an application for extension of time in regard to an application brought before the Tribunal by Mr Maxwell Philip Delahunty who claimed against the decision of the Military Compensation and Rehabilitation Service of the Department of Veterans Affairs dated 28 March 2002, made pursuant to the Safety, Rehabilitation, and Compensation Act 1988, which affirmed a decision of 6 December 2001, denying liability for injury he claimed he sustained on or about 22 July 1963 while at HMAS Leeuwin.

At the hearing which considered his application for extension of time to lodge the claim referred to above, Mr Delahunty was self represented, and the respondent was represented by Mr B Kelly of counsel. 

ISSUE BEFORE THE TRIBUNAL
The issue before the Tribunal was whether discretion pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 should be exercised to permit an extension of time for Mr Delahunty to lodge a claim against the decision of the Military Compensation and Rehabilitation Service of the Department of Veterans Affairs which denied liability for psychological injury claimed to have been incurred on or about 22 July 1963 at HMAS Leeuwin.

LEGISLATION
The relevant legislation in the consideration of the extension of time is section 29(7) of the Administrative Appeals Tribunal Act 1975. Section 29(7) reads:

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 including a decision made before the commencement of this section.

EVIDENCE BEFORE THE TRIBUNAL
The Tribunal had before it the following documents:  statement of Mr Delahunty dated 12 November 2003 as exhibit A1;  statement of Dr M. Rowland, 18 March, 1995, exhibit A2;  statement of Ms Bertram, 12 November 2003, exhibit R1;  statement of Mr Ontong, 12 November, 2003, exhibit R2.  A bundle of Defence medical records relating to the applicant was exhibit R3. 

Now the evidence and submissions of the applicant.  I noted Mr Delahunty's evidence that he joined the Navy at the age of 15, and his claim that he had been sexually assaulted as described in the report of Dr Rowland.  He told the hearing he had been threatened that if he disclosed anything about the occurrence, he would be hurt again.  He said that he was very fearful of repercussion and accordingly did not report the incident to anyone.

In cross-examination Mr Delahunty agreed he had no identifiable witnesses to the claimed assault, had not reported the events to anyone in the Navy, and had worked on there for a further 10 years.  He said that he could not confide in his stepmother, did not have a father, and so he reacted by living in fear, not getting out of bed at night, and urinating into a bottle if he had to in the middle of the night. 

Mr Delahunty said that he suffered bad recurrent dreams and graphic flashbacks which included taste and smell.  He said he did not know that he was suffering any psychological illness as a result of the attack, and thought things would settle down, but soon got into the habit of drinking to excess, to sleep, and blot out the bad thoughts.

Mr Delahunty said that he served a further 10 years until he was discharged in September 1972, and then joined the Northern Territory Police Force, and had also worked at the Cairns Brewery.  Mr Delahunty agreed in cross-examination that he had had problems with a mechanics course during his time in the Navy, although he did not agree with Mr Kelly that it was due to anxiety, preferring to attribute his fear of failure and problems to his problems with alcohol.  He said that only after his GP had referred him to Dr Rowland who was a psychiatrist, did he realise that he had a mental illness which he diagnosed as PTSD with secondary depression and alcohol abuse.  He said that he told no one of the assault until his second visit to Dr Rowland and had only gone to her because his wife had in 1994 given him an ultimatum about drinking to excess. 

Mr Delahunty told me when questioned by Mr Kelly that he could not remember being treated for any psychological illness or claustrophobia before discharge in 1972.  He did however recall that he was treated at Balmoral Hospital in November 1972, he thought for alcoholism, and recalled taking certain medication.  He also recalled having an EEG, but insisted he was being treated for alcoholism and could not recall the names of any of the doctors.

When reminded from doctors' notes that he had indicated to a Navy doctor in 1972 that his life was taking a turn for the worse after he was convicted of car theft and had spent four months in gaol some years before, Mr Delahunty said that he could not recall so informing the doctor. 

As to his discharge; Mr Delahunty claimed that he had received no papers other than a document showing it was an honourable discharge. He said that he had come before a Naval board of some sort and had volunteered for early discharge.  He said he had been refused his medical records although eventually some had been sent to Dr Rowland.  He said he had not seen these.

Mr Delahunty said that he knew about compensation as he had made claims regarding his knee injury, but did not regard himself as requiring compensation for the assault because he did not know he had suffered psychological damage as a result of it.  He attributed any problems he had to drinking.

Mr Delahunty said that he consulted solicitors who lodged a common law claim for him which was eventually withdrawn.  He had also had the reviewable decision of the respondent, and said that he had lost a lot of hope, was suffering anxiety and despair, and hence did not appeal to the AAT within the required time frame.

He said that he left his job as Corporate and Property Manager of the TAB and moved to the country.  He said that it was only when he saw an advertisement in the Wagga Wagga paper indicating that there was a visiting advocate, that he decided to consult Ms Buss.  He said she encouraged him to apply to the Tribunal with regard to his claim. 

In summary Mr Delahunty said that he did not report the assault in 1963 for fear of retribution.  He did not know he had a mental disorder at discharge in 1972, and indeed not until after consulting Dr Rowland in 1984.  Mr Delahunty also mentioned a report of an inquiry conducted by Rapke J into bastardisation at HMAS Leeuwin for the years 1964 to 1971, which he said he had had difficulty obtaining.  He also mentioned the cases of Gorton and Roycroft, cases before the Tribunal which he said could be applied to assist him in his application.

I moved then to the conclusions.

CONCLUSIONS

Having heard the evidence I have to take into account the submissions of both parties, the case law and legislation before me, to decide whether the discretion to permit an extension of time should be granted in this matter pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975.

I am mindful there is a large body of case law with regard to the discretion to extend time.  I note also that workers compensation legislation is beneficial legislation and was mindful that this had been recognised by the Tribunal and was specifically emphasised by O'Connor J in Re Young.  In Re Young her Honour affirmed that both the Administrative Appeals Tribunal Act 1975 and the Safety, Rehabilitation and Compensation Act 1988, were beneficial legislation.

Her Honour stated at 309:

In terms of the time limit provided under section 62(3)(b) of the Act there is a discretion to extend time to the applicant at any time before or after the time limit has expired.  It seems to me that this is indicative of Parliament's intention to facilitate access to review for the applicant and reflects the beneficial nature of the policy underlying the Act.  Time limits can also be construed as being a benefit to the applicant as well as to the respondent in that they help to ensure the process of reconsideration takes place in a timely fashion and that the applicant moves as quickly as possible through the procedural stages.

The principles to be taken into account in considering whether the exercise of the discretion to grant an extension of time should be exercised in a particular case have been enunciated clearly in cases such as Hunter Valley Developments Pty Limited and Others v Minister for Home Affairs and Environment, (1984) 58 ALR 305.

I was mindful that there is a presumption that time limits have been inserted into legislation for a good reason, and prima facie must be adhered to. Mr Delahunty clearly had not adhered to the statutory time limits with regard to his claims and the following submissions in consideration of his conduct address that. 

Firstly, as to the cause and explanation for delay; I noted Mr Delahunty's submissions that he was terrified of reporting the assault, and lived with that fear for many years, attributing problems which arose to his alcoholism until he told Dr Rowland about his problems in 1984.  Those were his reasons for not making a compensation claim earlier.

He explained his tardiness with regard to appealing the respondent's denial of liability made in March 2002 by saying that he had lost hope, and ultimately relied on the advice of Ms Buss he obtained after responding to a public advertisement, and consulting her in December 2002.  Mr Kelly emphasised that the appeal to the decision of 28 March 2002 had not been made until October 2003.  He emphasised Mr Delahunty had consulted Ms Buss in December 2002, but had delayed appealing the decision until October 2003.

Mr Kelly emphasised Mr Dalahunty had known of his mental illness at least upon discharge in 1972, and certainly after consulting Dr Rowland in 1984.  He said that the alleged assault had occurred back in 1963, with section 16 of the 1930 Compensation Act which applied at that time requiring the reporting of illness or injury as soon as practicable.  Mr Kelly drew my attention to the other section 16 tests, including the provision for “other reasonable cause”, submitting that there was no such reasonable cause for Mr Delahunty not to have made a claim sooner.

Mr Kelly submitted that Mr Delahunty would have known through his Navy training about the reporting of injury or illness, something that he would also have known as part of his training with the Police Force which he joined after discharge from the Navy.  He drew to my attention Mr Delahunty's replies in cross-examination which indicated he knew about workers compensation, and was able to make claims with regard to his knee injury. 

Mr Kelly submitted that Mr Delahunty had not demonstrated to the Tribunal's satisfaction that he had reason for not reporting his injury, and that even after receiving the reviewable decision in March 2002 and being advised by Ms Buss in December 2002, he took until October 2003 to make a claim to the Tribunal.  Mr Kelly submitted that Mr Delahunty had rested on his rights after seeing his solicitor and obtaining advice.

I noted Mr Delahunty's evidence and submissions and the reasons he gave for not reporting the assault, but preferred Mr Kelly's submissions and agreed that Mr Delahunty would have known of his psychological condition back in 1972 while in the Navy, and while he was being examined and treated by psychologists and by psychiatrists at that time.

As to the response to the denial of liability by the respondent in March 2002; I find that Mr Delahunty was aware of his rights to appeal that decision, as he would have been advised in  writing in connection with the giving of the decision.  I find further that despite seeking the advice of Ms Buss in December 2002, he failed to lodged an appeal until October 2003.  He has rested on his rights in making a claim.

As to prejudice; I have taken into account Mr Delahunty's reasons for not reporting the alleged assault and not lodging an appeal to the Tribunal. I have also noted Mr Kelly's submissions that the respondent had, through Mr Delahunty's actions, lost the opportunity to assist him with timely treatment which might have altered the course of his illness, and that after such a large lapse of time, the respondent had no opportunity of hearing contemporaneous medical reports or seeking witnesses to prepare its case.

I preferred the respondent's submissions in regard to prejudice, and found that the respondent would be greatly prejudiced were an extension of time to be granted to Mr Delahunty to proceed with his claim.

In deciding whether to grant an extension of time, I also considered the merits of the case.  Mr Delahunty submitted he had been psychologically injured during his time in the Navy, and gave his reasons for not reporting the assault in a timely fashion, which were that he was fearful about retribution. I noted also his explanation that he thought his illness was alcoholism, even though he had been treated for other psychological conditions with medication, commencing in 1972 while still with the Navy.

Mr Kelly submitted that the merits of the case were low in that there was no corroborative evidence available upon which to conduct the case.  The respondent had no opportunity, he said, to obtain medical or corroborating evidence and the applicant had poor recollection of everything except his own psychological condition. 

I accepted the respondent's submissions in that regard, and did not find that the merits of the case were at all positive. 

I noted that Mr Kelly did not press any considerations of fairness as between the applicant and other persons in like positions. 

The Tribunal is mindful that each extension of time case is decided on its merits taking into account the principles as enunciated in Hunter Valley and similar cases.

Accordingly, in summary:

·     the applicant's conduct;  I consider that Mr Delahunty has rested on his rights and did not prosecute his claim as he should have done, even after being alerted to it. 

·     I find from the evidence that he knew, at least, by 1972, that he was suffering some psychological condition, that he was further diagnosed by Dr Roland in 1984, and that even after the issue of the reviewable decision in March 2002, and the advice of Ms Buss in December 2002, he did not apply to the Tribunal for review of the decision which was made against him until October 2003.  There was no satisfactory explanation given for the delay.

·     The merits of the claim; I consider that the chances of success of bringing the claim were low due to the fact there were no witnesses to the assault, no contemporaneous medical evidence available, and the effluxion of time being between 1963 and 2003.

·     Prejudice to the respondent;  I accept that there was prejudice to the respondent in the non-availability of contemporaneous medical or corroborative evidence. 

·     I consider that fairness in relation to other claimants, and taking the wider public interest into consideration was not a big issue in this case, except that there is always a cost to the community in following up a matter which should have been dealt with within statutory time limits.

THE DECISION

Accordingly, on the basis of the above, and considerations of fairness and equity, I have decided not to exercise the discretion pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975  to grant an extension of time for Mr Delahunty to make an application to the Tribunal with regard to a review of the refusal of liability by the respondent made in March 2002. 

Accordingly, the application of Mr Delahunty is not successful.

Ms G Ettinger
Senior Member