Duncan Taylor and Military Rehabilitation and Compensation Commission
[2014] AATA 78
[2014] AATA 78
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/0111
Re
Duncan Taylor
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal RM Creyke, Senior Member
Date 20 February 2014 Place Canberra The extension of time for the application to be heard by the Administrative Appeals Tribunal is granted.
.....................[sgd]......................
RM Creyke, Senior Member
Catchwords
COMPENSATION – Extension of time - two delays in application - significant delay of time between injury and decision – delay between decision and appeal – extension of time granted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 29 and 28A.
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 124.
Compensation (Commonwealth Government Employees) Act 1971 (Cth) s 54.
Evidence Act 1995 (Cth) ss 4, 5, 160, 163 and 182.
Acts Interpretation Act 1901 (Cth) s 28A.
Cases
Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12
Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186.
Telstra Corporation v Roycroft (1997) 47 ALD 671
Banks v Comcare [1994] (unreported, 22 May 1994), cited in Re Roycroft and Telstra (1996) 44 ALD 732
0
REASONS FOR INTERLOCATORY DECISION
RM Creyke, Senior Member
Mr Duncan Taylor, born 1932, served as a member of the armed forces from 1951 until his discharge on 7 December 1987. On 22 September 2010 he sought compensation from the Military Rehabilitation and Compensation Commission (Commission) for an ankle condition diagnosed as osteoarthritis. The claim was rejected on 22 November 2011.
Mr Taylor sought review by the Tribunal on 9 January 2014. Mr Taylor lodged his application for an extension of time on 10 January 2014. The application for the extension of time was neither consented to, nor opposed, by the Commission.
An interlocutory hearing to consider the extension of time application was heard in Canberra by the Tribunal on 23 January 2014.
Background
Mr Taylor claimed to have injured his ankle in mid-August 1977. At that time, he was a member of the Australian Army Reserve. He said the injury occurred when he was an ‘instructor on an All Arms Logistics Course conducted at St Andrew’s College, University of Sydney’.
According to his evidence, the lecture rooms were situated some distance from his living quarters and the incident occurred on his way to the lecture rooms when he slipped and badly sprained his ankle. He was taken to the Regimental Aid Post at Victoria Barracks and was subsequently sent to a specialist in Macquarie Street, Sydney who advised him to stay off the ankle for a couple of days and to remain in his sleeping quarters. An X-ray was taken of his ankle at the time, but cannot be located.
There is evidence from a Lieutenant Colonel Frank Poole who served with Mr Taylor that Mr Taylor was suffering from an injured ankle on 15 or 16 August 1977. The evidence that he injured his ankle is supported in a statement dated 8 November 2012 from Major-General Sharp, Chief Instructor of the course Mr Taylor was conducting. Mr Taylor also provided evidence to the Tribunal, which it accepts, that following the course his wife had to drive to Sydney from Canberra to pick him up, as he was unable to drive himself due to his injury. He said he could not drive for the next six weeks. Mr Taylor also gave evidence that his son, who was then 13 years old, has also said he recalls his father returning from an Army course with a severely injured ankle.
There is no record of the injury in Mr Taylor’s compensation file. A Medical Examination Board report on 18 January 1981 assessed Mr Taylor’s lower extremities as normal. The report also recorded Mr Taylor as affirming that he had not had an accident or illness for which he intended to apply for compensation, and had answered ‘No’ to a question whether he had ever suffered or was then suffering from an ankle injury. Mr Taylor said he is left-handed and the misunderstanding of his response may have been due to the fact that he does ticks backwards, an issue that was not explored.
On 13 September 2010, at the request of Dr Harris, Mr Taylor’s general practitioner, Dr Brendan Klar, an orthopaedic surgeon, provided a report in which he diagnosed Mr Taylor as having ‘right ankle osteoarthritis’. Dr Klar expressed the opinion that ‘[t]here is a possibility that some of the deformity of the talus [ankle bone] is related to the previous injury in the 1980s’. His report also said:
He certainly does have what appears to be a healed medial malleolar fracture with enlargement of the medial malleaolus [a bone in the ankle adjacent to the talus] when compared to his other side and I suspect he probably did have a fracture of this ankle joint which was undiagnosed at the time.
Mr Taylor lodged an application for compensation on 22 September 2010. Mr Taylor said, until he consulted Dr Klar, he had not connected his ankle injury in 1977 with the osteoarthritis problems in 2010 which led to the referral.
Mr Taylor said he cannot explain the absence of any record of his injury in the Army records provided. He said he believed it was the responsibility of the commanding officer to lodge the record of the injury and hence he had not done so. However, he acknowledged that at the time, due to organisational changes within the Army, there was some breakdown in the chain of command so this may have explained the failure. In any event, he thought he had merely suffered a sprain which would heal in time.
Mr Taylor said that in 1977 he was the Australian Director of the Boys Brigade and that immediately after the accident he had to participate in a Jamboree in Perth. Mr Taylor said he did not recall having difficulty leading the march of the campers through the city.
Mr Taylor had regularly played hockey and occasionally tennis at least until he was in his thirties in the intervening period between the original injury and the compensation claim. Mr Taylor further explained that he had not been troubled by his ankle until at least three months prior to his visit to his general practitioner in 2010, who then referred him to Dr Klar.
After the accident, on his return to Canberra, Mr Taylor had been referred either to his doctor or the RAP, at the Royal Military College. He chose to go to his family doctor, Dr Harris, who is now dead. The X-Rays taken of Mr Taylor’s ankle at the time were disposed of and although Dr Harris’s practice was sold to his current general practitioner, that practitioner’s evidence is that ‘the general paucity of notes taken by Dr Harris means that the topic of service related injuries may have been discussed but never recorded’. This means there are no contemporaneous records from the practice of his ankle injury. The Army has also indicated that the Regimental Aid Post, Victoria Barracks cannot find any records of the incident.
Mr Taylor explained his delay in lodging his application for review with the Tribunal as due first to advice he received from the Tribunal that he needed corroborating evidence of the occurrence of his injury. He said he was advised ‘it did not matter how long it took as we could always lodge a new claim with new contentions’. He has been trying to obtain such evidence in his spare time, but he has faced difficulties in doing so and this delayed his lodgement of his application. Those difficulties included that one of the staff officers who could have provided evidence is now dead and he has not been able to locate the other.
Following the interlocutory hearing, Mr Taylor provided further medical evidence to indicate that he had undergone two operations in March 2011 and November 2011. The first was for carpal tunnel syndrome, and the second related to his right thumb. The operations were followed by physiotherapy for rehabilitation in February, March, June 2011, and January 2012. The second operation was immediately prior to receipt of the decision rejecting his claim and he said that had ‘impacted on my ability to follow up some of leads [he] had on possible further witnesses’. He also said he had a gastroscopy operation during the period following the rejection of his claim.
Legislation
The relevant provision concerning time limits relating to applications for review is in the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). In interpreting the provisions relating to time limits in the AAT Act the Tribunal has also considered provisions in the Acts Interpretation Act 1901 (Cth) and the Evidence Act 1995 (Cth). Other relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act), section 124 of which authorises application of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (1971 Act) in cases such as Mr Taylor’s in which the events referred to occurred prior to the commencement of the Act.
Issues
The sole issue is whether Mr Taylor should be granted an extension of time to lodge his application for review with the Tribunal. The incident claimed to have caused his injury occurred 37 years ago. In addition, although the decision to reject his application was made on 22 November 2011, Mr Taylor did not lodge his application with the Tribunal until 9 January 2014, twenty six months after the decision. Both delays must be considered.
Consideration
Meeting Time limits
The Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) section 29(2) provides that applications to the Tribunal must be lodged within twenty-eight days of the day the decision has been ‘given’ to the person. Time for service of documents is provided for in section 28A of the Acts Interpretation Act 1901 (Cth). Section 28A provides that in a statute that provides for the service of a document on a person, when the word ‘given’ is used, the word may mean service personally, or by post to, or lodgement at, the last known address of the person.[1]
[1] Acts Interpretation Act 1901 (Cth) s 28A(1)(a)(i), (ii).
In the absence of evidence of another form of service the Tribunal has assumed that Mr Taylor was not provided the decision in person.[2] Accordingly, the Tribunal infers that service was effected on Mr Taylor by lodging the decision at his last known address or sending it to his address by pre-paid post. An interpretation which is the most beneficial is that he was served the decision by post. The Evidence Act 1996 (Cth), although not binding on the Tribunal,[3] is a useful guide for the Tribunal on time limits applying in such circumstances.
[2] Acts Interpretation Act 1901 (Cth) s 28A(1)(a)(i).
[3] Evidence Act 1995 (Cth) s 4, Dictionary.
Section 160 of the Evidence Act 1995 (Cth) provides that normally if a document is sent by post, it is presumed to have been received ‘on the fourth working day’ after having been posted. ‘Working day’ excludes a weekend or a public holiday.[4] However, section 182, in conjunction with sections 5 and 163 of the Evidence Act 1995 (Cth), extends that time in the case of Commonwealth agencies. Section 163 provides that a letter from a Commonwealth agency is presumed to have been sent on the ‘fifth business day after the date … on which the letter was prepared’.
[4] Evidence Act 1995 (Cth) s 160.
The date shown on the decision which the Tribunal has assumed is the date the decision was prepared, was 22 November 2011, a Tuesday. In accordance with section 163 of the Evidence Act, since the letter was posted by a Commonwealth agency, the letter containing the decision would have been sent on the fifth business day after that Tuesday, namely, the following Tuesday, 29 November 2011. Assuming postage on 29 November 2011, the letter would have been received on the fourth working day after 29 November 2011, that is, Monday 4 December 2011. In other words, if the Evidence Act provisions were applied, Mr Taylor would not be presumed to have received the letter until 4 December 2011. He then had a further 28 days in which to lodge his application to the Tribunal. That is, he should have lodged his application on or before 1 January 2012. These calculations indicate that his actual lodgement of his application with the Tribunal on 9 January 2014 was some two years out of time.
Principles for granting an extension of time
The cases have established principles to be applied in deciding whether to grant an extension of time.[5] The principles in the following extract which illustrates these principles are applied by the courts, but are equally applicable to the Tribunal. Mortimer J summarised the effects of the cases as follows:
The authorities in this Court reveal three principal matters the Court usually takes into account: any explanation for the delay, any prejudice to the respondent or other parties which might be occasioned if the extension of time were granted, and the prospects of success of the appeal if an extension of time were to be granted.[6]
The Tribunal considers each of these criteria in the following discussion.
Explanation for the delay
[5] In particular, Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344.
[6] Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [23].
Mr Taylor explained his delay of two years as due to advice he received that he needed to obtain corroborative evidence concerning the incident and that it did not matter how long he took since he could always lodge another claim. Mr Taylor was misadvised, assuming his testimony as to his advice was correct. The advice was also contrary to the standard information provided to recipients of government decisions that the application to the Tribunal must be lodged within 28 days. A two year delay for that reason need not have been incurred if Mr Taylor had lodged his application on time and then sought an extension of time to obtain evidence. However, the Tribunal notes that some of the delay was due to operations Mr Taylor underwent in 2011 and for which he still needed treatment in early 2012. His evidence was that the effects of these operations had an impact on his ability to pursue this matter. The Tribunal also notes in his favour that Mr Taylor did not sit on his rights and had been seeking witnesses to the events during 2011 and 2012.
The Tribunal also takes into account his evidence that until a short time prior to his lodgement of his initial application, following his visit to Dr Klar, Mr Taylor had been unaware of any possible link to service of the osteoarthritis of his ankle from which he is now suffering.
The Tribunal found Mr Taylor to be a witness of truth. Accordingly it accepts that he was wrongly advised about the time within which he could seek review by the Tribunal. The Tribunal noted his evidence as to other personal commitments he had about this time, and that he had medical reasons for the delay. The Tribunal is also conscious that Mr Taylor is representing himself and has been undertaking the organisation of his claim without legal or other assistance. The Tribunal accepts that Mr Taylor has in part explained the reasons for his delay under the first principle.
Prejudice to the respondent or other parties
It was agreed at the hearing that the lengthy delay since the events in 1977 has significantly prejudiced both parties. The difficulties Mr Taylor faced in obtaining evidence due to the length of time since the events relied on, including the death of his then general practitioner and other witnesses, and the destruction of records, indicate why the parties to this claim, including Mr Taylor, have been prejudiced by the delay. It is also apparent in the tentative nature of the suggestion as to the cause of the injury in the report of Dr Klar. Application of this principle would deny an extension of time.
Prospects of success
The third principle refers to Mr Taylor’s prospects of success. That is dependent on his being able to establish his case on the facts and to the relevant legal standards. The discussion has already referred to the problems Mr Taylor has faced in obtaining evidence. As to the application of the law, there is an additional legal hurdle to the criteria for eligibility for compensation in the relevant legislation, namely, the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (1971 Act).
That legal hurdle is that Mr Taylor has to meet the tests in section 54 of the 1971 Act concerning his delay in notification of the injury. Those tests require that notice be served on the Commissioner within six months of the injury, or of the person becoming aware of the injury. The provision contains some exceptions to the six months’ time limit.
The relevant tests for notification are located in the 1971 Act. Recourse to the earlier legislation is provided for under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act), the current compensation legislation. Section 124(1) of the Act provides for the situation where an injury was suffered by an employee prior to the commencement of the Act. Section 124(10)(c) of the Act states:
124(10)(c) Where … a claim for compensation by a person under the 1971 Act, in respect of an injury suffered after the commencement of the 1971 Act but before 1 July 1986, was not admissible because of section 54 of the 1971 Act, as that section was in force before 1 July 1986, that person is not entitled to compensation under this Act in respect of that injury.
The provision has the effect that in deciding whether Mr Taylor’s prospects of success are positive, he must establish the likelihood of him succeeding under the 1971 Act, including surmounting the barrier posed by section 54.
Section 54 of the 1971 Act states as relevant:
54. (1) Compensation in relation to an employee is not payable under this Act to a person unless a claim in writing for the compensation was served, as prescribed, on the Commissioner by or on behalf of the person within the prescribed period.
(2) If the claimant is the employee, the prescribed period for the purposes of the last preceding sub-section is-
(a) in the case of a claim in relation to an injury to the claimant-
(i) the period of six months commencing on the day of the injury; or
(ii) if the claimant was not, immediately after the injury, aware that he had sustained an injury - the period of six months commencing on the day on which he became so aware; …
(6) Where -
(a) a claim purporting to be a claim referred to in sub-section (1) has been served on the Commissioner;
(b) the claim, as regards the time or manner of service, failed to comply with the requirements of that sub-section; and
(c) the Commonwealth would not, by reason of the failure, be prejudiced if the claim were treated as a sufficient claim, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause, the claim shall be deemed to have been served in accordance with that sub-section.
As to whether Comcare would be prejudiced if the claim were treated as a sufficient notice the Tribunal notes that Comcare did not contend it would be prejudiced by the delay. That does not relieve the Tribunal of making a finding in relation to prejudice.[7] The Tribunal has already noted that the paucity of evidence and the difficulty of obtaining contemporaneous evidence is a factor against granting an extension of time in the application to the Tribunal. In other words, the delay has prejudiced both parties. The same arguments apply in relation to the failure to notify under section 54 of the 1971 Act.
[7] Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186.
There are, however, exceptions to the within six months’ notifications requirement listed in section 54. These refer to ‘ignorance’ or ‘mistake, or ‘other reasonable cause’. The cases have discussed the distinction in section 54 between a mistake or ignorance. The distinction was expressed as follows:
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, the person is ignorant. The distinction between ignorance and mistake requires very careful attention to the evidence.[8]
[8] Telstra Corporation v Roycroft (1997) 47 ALD 671 at 679.
Mr Taylor did not seek compensation in 1977 since he was then unaware of a possible injury of any moment to his ankle. That is a mistake as to a fact. He was also ignorant about the legislation since he acted without any knowledge of the Act on the basis of his mistake as to the facts. Ignorance can include a failure to appreciate the link between an injury and employment.[9]
[9] Banks v Comcare [1994] (unreported, 22 May 1994), cited in Re Roycroft and Telstra (1996) 44 ALD 732, not distinguished on appeal to the Federal court in Telstra Corporation v Roycroft (see note 2).
Mr Taylor claims that the injury for which he is now claiming compensation occurred 37 years ago. He did not notify the Commissioner for compensation at the time as he believed he had just suffered a sprain which would recover. His mistake as to this fact precluded him doing so. That mistake of fact, in turn led to his not being aware of any link with employment and hence he did not explore any of his possible legal rights. The mistake and his ignorance explain why he did not lodge a claim within the six months’ time limit in section 54(2(a)(i)).
The 1971 Act permits a person to lodge a claim outside that timeframe if the person lodges the claim within six months of becoming aware of the condition claimed (section 54(2)(a)(ii)). Whether Mr Taylor became aware of his ankle problems and sought treatment in the intervening period between 1977 and 2010 is a matter of evidence. Apart from Mr Taylor’s testimony that he had ceased playing hockey and tennis prior to 1977 the Tribunal has no such evidence.
That evidence may be difficult to obtain. Mr Taylor said his former general practitioner has left practice and that his records are no longer in existence, and there are no records held at the Victoria Barracks. However, the representative for the Commission said that a request had been made to the Department of Veterans’ Affairs to provide Mr Taylor’s personnel file and his medical records. These had not been provided at the time of the interlocutory hearing. Until these documents are produced, the Tribunal is not in a position to judge whether Mr Taylor had problems with his ankle in the intervening period which could have alerted him earlier to his ankle condition.
The only evidence on this issue before the Tribunal is the report of the Medical Examination Board (MEB) in 1981 at which Mr Taylor had given answers indicating that he had not suffered any injury to his ankle, nor did he intend to make any claim for compensation.
The second assertion can be excused if Mr Taylor, as he asserted, was not aware of any possible connection with his employment prior to Dr Klar’s report. The first answer may mean Mr Taylor, some four years’ after the event, had not yet begun to experience symptoms of osteoarthritis in his ankle. Medical evidence is needed to establish when symptoms of osteoarthritic conditions are likely to be manifest. The MEB record had found no injuries to Mr Taylor’s lower extremities in the 1980s. This evidence is of some weight given that it is closer in time to the events of 1977. At the same time, the finding would not be surprising if Mr Taylor was not then experiencing any symptoms in his ankle.
In terms of his prospect of success, it may be difficult for Mr Taylor to provide evidence to the Tribunal that there has not been some incident other than the ankle injury in 1977 in the intervening years which has been the cause of his current osteoarthritis of his ankle. Again this issue may be solved when the personnel file and medical records during service are available.
On balance, and in the absence of alternative evidence, the Tribunal is prepared to accept Mr Taylor’s claim that he was not aware until 2010 that his present ankle problems may have been linked to an incident on defence service over thirty years earlier, that is, he was ignorant of a fact which would have led him to lodge a claim. The Tribunal also notes that Mr Taylor did lodge a claim within six months of Dr Klar’s report in September 2010, being the first occasion on which he was advised of a possible link between his osteoarthritis and his service, thus meeting the time limit in section 54(2)(a)(ii).
That does not mean that his application should be granted. There are other provisions which may preclude the grant of the extension of time. Section 54(6) of the 1971 Act provides in effect, that if the delay in lodgement prejudices the successor of the Commissioner for Compensation, namely, the Commission, it may not be granted. The difficulties Mr Taylor experienced in finding witnesses to the claimed events in 1977, and the possibility that intervening incidents outside of service were the actual cause of Mr Taylor’s osteoarthritis of his ankle are indicative of that prejudice. Nonetheless, as the Commission has reserved its position on this issue until it has further evidence, if required, the Tribunal is prepared to discount the effect of this factor, even given the Tribunal’s awareness of the difficulties this poses for both parties.
The Tribunal finds that was no evidence of ‘any other reasonable cause’ for the delay.
On balance, the Tribunal finds in the current state of the evidence that Mr Taylor has some prospect of success, even given the length of time since the events which have given rise to this claim. Accordingly, and on balance, Mr Taylor has passed the hurdle of section 54 of the Act. That means he is not precluded by the terms of the 1971 Act from seeking review. The Tribunal has also found that he is not precluded by the principles in the cases from granting an extension of time to seek review by the Tribunal. Given the limited evidence available at this stage, the Tribunal accepts that Mr Taylor should be given an opportunity to make his case before the Tribunal. If he finds that the length of time involved since the events of 1977 make this an insuperable obstacle, Mr Taylor can always withdraw his application prior to a hearing.
The application to grant an extension of time is granted.
I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member. .....................[sgd].....................
Associate
20 February 2014
Date of hearing 23 January 2014 Applicant In person Advocate for the Respondent Luke Woolley Solicitors for the Respondent Sparke Helmore
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