Easson and Military Rehabilitation and Compensation Commission

[2005] AATA 344

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 344

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1094

GENERAL ADMINISTRATIVE DIVISION		)
Re		ROBERT EASSON

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date19 April 2005

PlaceSydney

Decision The application is dismissed pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975.

.............................................

Ms N Bell

Senior Member

APPLICATION FOR DISMISSAL – Respondent Submitted that Matter Frivolous or Vexatious – No Legitimate Purpose to be Achieved by Continuing with Application – Injury did not occur in the Course of Employment – Review not Sought by Applicant until 40 Years After Initial Claim – Effect on Current Application of 1930 Act - Application Dismissed.

Administrative Appeals Tribunal Act (1975,) section 42A; 42B

Commonwealth Employees’ Compensation Act 1930, sections 16; 9A(1)

Safety, Rehabilitation and Compensation Act 1988, section 124;

Commonwealth v Wright (1956) 96 CLR 536

Adcock v Commonwealth (1960) 103 CLR 194

Commonwealth v Hollis (1968) 118 CLR 305

Scott-Holland v Commonwealth (1983) 46 ALR 328

Commonwealth of Australia v Connors (1989) 86 ALR 247

Re Willians and Australian Electoral Commission and The Greens (1995) 38 ALD 366

Attorney-General v Wentworth (1988) 14 NSWLR 481

Re Vernazza [1960] 1QB 197

REASONS FOR DECISION

19 April 2005 Ms N Bell, Senior Member

1.      Mr Robert Easson was born on 7 March 1940, enlisted in the Royal Australian Navy (“RAN”) in 1957 and was discharged in 1964.  On 30 September 1959 at approximately 1:30 am, on the way back to the RAN air station from a dance in Moss Vale, he suffered a fractured femur, facial lacerations and a nasal fracture in a motor vehicle accident.  Mr Easson had, with three of his fellows, taken a taxi back to the air station.  He was due to start work at 7:30 am.  Mr Easson was hospitalised.

2.      Mr Easson made a claim for compensation on 29 January 1960 for broken right femur and indicated in his claim form that he was pursuing damages from the driver of the taxi cab.  His claim was disallowed under the Commonwealth Employees’ Compensation Act 1930 on 21 September 1960 on the basis that the accident did not occur while travelling to or from employment.  He lodged no appeal in respect of that determination.

3.      Many years later on 4 May 2001, 5 July 2002 and 11 October 2002, Mr Easson lodged claims for “fractured femur”, “gall bladder” and “left shoulder impingement” respectively, all arising out of the accident on 30 September 1959.

4.      Mr Easson was involved in a further motor vehicle accident on 5 August 1960 on the Sydney Harbour Bridge and complained of right leg pain at the site of the previous fracture.  He did not make a claim in respect of that accident until 2001 when he claimed for osteoarthritis of the right knee arising out of that accident.

5.      In determinations dated 25 November 2002 the claims for fractured right femur, gall bladder and left shoulder impingement arising out of the 1959 accident and the claim for osteoarthritis of the right knee arising out of the 1960 accident were disallowed.  At Mr Easson’s request, the determinations were reconsidered and the reviewable decision dated 7 May 2003, the decision before me now, affirmed the determinations.

6. The Military Rehabilitation and Compensation Commission (“the MRCC”) has applied for an order under section 42B(1) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) dismissing the application as frivolous or vexatious, or, alternatively, an order dismissing the application under section 42A(2) of the AAT Act for failure to appear at preliminary conferences or an order under section 42A(5) for failing to proceed with the application within a reasonable time. In relation to the latter provisions, I note that the Applicant failed to appear at a number of preliminary conferences and that he has not, after some 22 months, yet filed any medical evidence in support of his application.

7. The matters raised by the MRCC in support of its application under section 42B(1) of the AAT Act are that, first, Mr Easson’s accident in 1959 did not occur in the course of his employment, second, that Mr Easson’s more recent claims are duplications of the claim he made in 1960 and did not appeal and, third, that in any event, section 124 of the Safety, Rehabilitation and Compensation Act 1988 (“the 1988 Act”) allows a person to claim under that Act only if the person would be entitled to claim compensation under the Act in force at the time of the injury.  At the time of the accident in 1959, the Act in force was the Commonwealth Employees’ Compensation Act 1930 (“the 1930 Act”).  Under that Act the time allowed to appeal a determination was 30 days after receipt of the determination.  Even if the recent claims are viewed as new claims, section 16 of the 1930 Act allows only six months from the date of injury to make a claim unless failure to make the claim was occasioned by mistake, absence from Australia or other reasonable cause.  Mr Easson lodged his recent claims some 42 years after the events.

did the 1959 accident occur in the course of mr easson’s employment?

8. Section 124 (2) of the 1988 Act provides that a person is not entitled to compensation under the 1988 Act in respect of an injury suffered before the commencing day of the 1988 Act if compensation was not payable in respect of that injury under the Act in force at the time of the injury.

9.      The Act in force in 1959 and 1960 was the 1930 Act.  Section 9A(1) of the 1930 Act provided, in respect of journey injuries:

9A(1)   Where personal injury by accident is caused to an employee while he is travelling to or from:

a)        his employment by the Commonwealth …

…the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the accident were an accident arising out of or in the course of his employment.

10.     Mr Easson’s evidence was that the dance he attended on the evening of his 1959 accident was not organised by the Navy.  He said Navy personnel were invited to attend the dance and he and his fellows were requested to nominate to attend if they wished to do so.  He was under no compulsion to attend.  He said the Navy organised some buses for those who attended but that, at the conclusion of the dance, he observed that the bus driver was drunk and elected to return to the base, with some fellows, by taxi.  The accident took place at approximately 1.30 am.  Had the accident not happened he would have reached the base at some time between 2.00 and 3.00 am.  Mr Easson was due to commence work the next morning at 7.30 am.

11.     The leading case on journey claims under the 1930 Act is the decision of the High Court in Commonwealth v Wright (1956) 96 CLR 536. In that decision the High Court held that section 9A requires a person to be travelling to “employment” rather than to a “place of employment”.  As a serviceman, Mr Easson’s place of employment was the same as his place of residence.  However, when he was returning to that place on the date of the accident, he was not returning to his employment and would have had approximately five hours after his return before he was on duty again.  See also the decisions of the High Court in Adcock v Commonwealth (1960) 103 CLR 194 and Commonwealth v Hollis (1968) 118 CLR 305. It follows that Mr Easson was not travelling to his employment when the accident occurred and therefore the Commonwealth is not liable to pay compensation.

12.     As to the 1960 accident, there is no evidence to suggest that accident occurred in the course of Mr Easson’s employment, by virtue of the operation of section 9A or otherwise.

13. It follows that Mr Easson is not entitled to be paid compensation under the 1930 Act and, by the operation of section 124 of the 1988 Act, is therefore not entitled to compensation under the 1988 Act.

14.     On this basis alone, Mr Easson’s application to the Tribunal must fail.  However, even if it could be said that he was injured whilst travelling to his employment, the passage of over 40 years since the date of his accidents raises further obstacles to his entitlement to compensation under the 1930 Act.

The effect of the passage of time

15.     The MRCC submitted that Mr Easson’s claims in 2001 and 2002 are duplications of his claim arising out of the 1959 accident made in 1960.  However, even if they are not, he faces difficulty.

16.     I note, to begin with, that section 20 of the 1930 Act provided for appeals against determinations to be made within 30 days of the determination.  Mr Easson lodged no appeal against the determination.  He gave evidence of having no memory, not only of making a claim, but also of receiving the determination disallowing his claim.  He noted that the determination was addressed to him at HMAS Albatross but that he was, at that time, still at the hospital at HMAS Penguin.  However, other correspondence concerning his claim had been brought to the attention of the Commanding Officer at HMAS Penguin.  In any event, Mr Easson did not assert that he had not received the determination, but simply that he could not recall it, just as he could not recall signing the claim form.

17.     If Mr Easson’s recent claims are not duplications of his earlier claims, section 16 of the 1930 Act presents some difficulty for him.  Section 16 provides that the Commissioner (or, in this application, the Tribunal) “shall not admit a claim for compensation … for an injury” unless the claim is made within 6 months of the date of the accident.  The term “admit”, in this context, means “entertained” (Scott-Holland v Commonwealth, (1983) 46 ALR 328 at 344.

18.     The provision goes on, in 16(1)(a)(ii), to provide that consideration of the claim is not prevented if failure to make the claim within 6 months was caused by mistake, absence from Australia or other reasonable cause.

19.     Mr Easson’s evidence was that he has no memory of having made a claim in relation to the 1959 accident, although he acknowledged that it was his signature on the claim form.  He also acknowledged that he made a claim, through solicitors, against the driver of the taxi and received ₤1,800 in damages in 1962.  He said he was just a young man with no knowledge of such things and it was not until he spoke to an officer of the RSL and received some advice from an officer of the RSL in 2000 that he thought to pursue claims against the Respondent.  He said that formerly it had all been “Dutch” to him.

20.     The decision of the Federal Court in Commonwealth of Australia v Connors, (1989) 86 ALR 247, is authority for the proposition that the word “mistake” includes mistake of law as well as of fact but ignorance of the law does not constitute, by itself, a mistake and cannot, by itself, constitute “reasonable cause”.

21.     Mr Easson pointed to no other reason why he delayed making his claim for so long.  However, he indicated at the commencement of the hearing, through his advocate Mr Murphy, that he may make a claim pursuant to section 6A of the 1988 Act for unintended consequences of medical treatment.  At the time of the hearing he had not yet made any such claim and consequently there was no reviewable decision or application before the Tribunal.

22.     As the reason for the delay was not one that comes within section 16(1)(a)(ii), and it therefore cannot be entertained under the 1930 Act, Mr Easson is not entitled to compensation under the 1988 Act.

is the application frivolous or vexatious?

23. It remains for me to consider whether Mr Easson’s application should be dismissed pursuant to section 42B(1) of the AAT Act as frivolous or vexatious. I note at the outset that dismissal of proceedings on this basis should be approached with great caution.

24.     I considered the decision of, then, President of the Tribunal Mathews J and Deputy Presidents Beaumont and Hill JJ in Re Williams and Australian Electoral commission and The Greens (1995) 38 ALD 366. In that decision the Tribunal noted the test for vexatiousness set out by Roden J in Attorney General v Wentworth (1988) 14 NSWLR 481:

“It seems to me that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds.  I believe that the test may be expressed in the following terms:

1.        Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

2.        They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

3.        They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.”

25.      There is no issue as to Mr Easson’s motive in his application.  I am satisfied that he is relying on the advice he has received, from officers of the RSL, and has no purpose other than the recovery of compensation for his injuries.  I also note that there is no dispute as to the essential facts that ground Mr Easson’s application.  I further note the statement of Ormerod LJ in Re Vernazza [1960] 1 QB 197 at 208, referred to by their Honours in Williams (supra), that the question is not whether the proceedings have been instituted vexatiously but whether they are in fact vexatious.

26.     As to the third point in the passage by Roden J, their Honours in Williams, said:

“As Von Doussa J commented in Hatchett, [Hatchett v Bowater Tutt Industries Pty Ltd (No. 2) (1991) 28 FCR 324] an applicant who genuinely holds a mistaken belief as to a state of facts which, if correct, would support the claim which is made in the proceedings, is ordinarily entitled to a “day in court”.  In that event, it could operate very unfairly to an applicant to pre-judge the issues without affording him/her an opportunity to support his/her case with appropriate evidence.  But where, as here, the significant factual matters are agreed between the parties, and the only issues in dispute relate to the legal consequences which follow, the genuineness of the applicant’s belief as to the legitimacy of his claim must bow before a finding that, as a matter of law, no legitimate purpose can be achieved by continuing with the proceeding. And this is the finding we have reached in this case.”

27. Similarly, in Mr Easson’s application, because of the operation of the law in the manner outlined above, there is no legitimate purpose that can be achieved by continuing with his application. For that reason I dismiss the application pursuant to section 42B(1) of the AAT Act.

28.     I note again, as mentioned above, that Mr Easson may make a further claim pursuant to the provisions of section 6A of the 1988 Act in relation to unintended consequences of medical treatment.  That claim, if made, will operate independently of these proceedings.

Order

29.     The application is dismissed pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         .............[Linda Blue]....................
  Associate

Date of Hearing  15 March 2005
Date of Decision  19 April 2005
Representative for the Applicant    Mr Murphy
Solicitor for the Respondent     Ms Johnson