Fisher and Comcare

[2004] AATA 945

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 945

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/445

GENERAL ADMINISTRATIVE  DIVISION		)
Re		WILLIAM ERNEST FISHER

Applicant

And COMCARE

Respondent

DECISION

Tribunal Deputy President Don Muller

Date13 September 2004  

PlaceBrisbane

Decision The Tribunal rejects an application made by William Ernest Fisher, pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975, to extend the time for making an application to the Tribunal for a review of a decision made by the Deputy Chief Delegate of the Commissioner for Employees’ Compensation on 4 October 1978.

................SIGNED..............................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time – delay of twenty six years – prejudice to the respondent  – extension of time refused  

Compensation (Commonwealth Government Employees) Act 1971: s.7(1)(c)

Commonwealth Functions (Statutes Review) Act 1981: s.149

Safety Rehabilitation and Compensation Act 1988: ss129(1), 129A

REASONS FOR DECISION

Deputy President Don Muller        

1.      William Ernest Fisher, the Applicant, seeks an extension of time for making an application to the Tribunal for a review of a determination made by the Deputy Chief Delegate of the Commissioner for Employees’ Compensation made on 4 October 1978 revoking liability in respect of a fractured right ankle.

2.      The decision sought to be reviewed was made pursuant to the provisions of the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act).  The decision was received by Mr. Fisher shortly after 4 October 1978.

3.      On 22 January 2004 Mr. Fisher wrote to Comcare requesting that they undertake a reconsideration of the determination made on 4 October 1978.

4. A delegate of Comcare replied to Mr. Fisher by letter dated 17 March 2004. The Delegate quoted the provisions of sections 129(1) and 129A of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) and referred to their effect on Mr. Fisher’s claim. The letter ended with this paragraph:

“In effect, Comcare can only undertake a reconsideration of a determination made under the 1971 Act, where such a determination is not covered by Section 129(1) of the Act.  Having considered these provisions I am satisfied that Section 129(1) provides scope for you to apply to the AAT for review of the decision of 4 October 1978 and that Comcare is barred from reviewing the determination by Section 129A of the Act.  Accordingly it is our position that your application for review should now be made to the AAT.  Due to the fact that you are now outside the statutory time frame for lodging such an appeal will need to seek leave from the AAT to do so.”

5.      Mr. Fisher then applied to this Tribunal on 17 June 2004 for a review of the determination dated 4 October 1978.

6.      The Tribunal heard submissions by Mr. Fisher on his own behalf, and from Ms. Bird, solicitor for the Respondent.

7.      Mr. Fisher told the Tribunal that he did not take the matter any further in 1978 because he believed that he would not have been able to mount a successful appeal due to the state of the case law at the time.  He now believes that in recent years the case law may have turned in his favour.

8.      Mr. Fisher also admitted to the tribunal that he now suffers no ill effect from the 1978 injury.  That is, there is no permanent impairment, nor does he experience any incapacity for work.

9.      Ms. Bird informed the Tribunal that Mr. Fisher’s file has disappeared, but there may be a copy of it in some archive somewhere.  She submitted that the cost of locating the file would be out of all proportion to any potential benefit to Mr. Fisher.  She also submitted that the passage of so long a time means that the Respondent is severely prejudiced in attempting to challenge or confirm any facts which Mr. Fisher might raise in relation to the circumstances surrounding the injury.

10.     The brief history of the matter is as follows:

(a)Mr. Fisher broke his right ankle on 30 March 1976.

(b)Mr. Fisher claimed workers’ compensation under the 1971 Act on 4 June 1976.

(c)Mr. Fisher’s claim was initially accepted and a Determination made in the following terms (date unknown):

“1.  The said William Ernest Fisher sustained personal injury on 30 March 1976, namely fractured right ankle in the course of his employment.

2.      In accordance with the provisions of Section 27 of the said Act, the Postal and Telecommunications Department is liable to pay compensation in respect of the said personal injury.

3.      In accordance with the provisions of Section 45(2A) of the said Act the said William Ernest Fisher is entitled to payment of compensation at a rate equivalent to that to which he would be entitled if he was granted sick leave on full pay for the period 31 March 1976 to 13 April 1976 inclusive, 21, 27 April, 11, 23 May and 28 June 1976.

4.      In accordance with Section 37 of the said Act, the cost of medical treatment amounting to $66.99 in relation to the injury shall be paid.”

(d)The initial acceptance of Mr. Fisher’s claim was later revoked by Determination dated 4 October 1978:

“1.     On the evidence before me I find that when the said William Ernest Fisher sustained personal injury on 30 March 1976 he was engaged in an activity unconnected with his employment by the Postal and Telecommunications Department.

2. NOW THEREFORE, in pursuance of the provisions of the Compensation (Commonwealth Government Employees) Act 1971, as amended, including paragraph 20(4)(a) and section 27 of that Act, I hereby determine:-

(a)     the determination previously made in this matter is revoked;

(b)the said William Ernest Fisher did not sustain personal injury arising out of or in the course of his employment;

(c)the claim for compensation of the said William Ernest Fisher of 4 June 1976 is therefore disallowed.”

(e)The 1971 Act allowed for determinations such as the above to be reviewed by the Commonwealth Employees Compensation Tribunal.  The time limit for applications was covered by s.76(1)(c).  It was 60 days.  Mr. Fisher did not avail himself of that right to review.

(f)The functions of the Commonwealth Employees Compensation Tribunal were absorbed by the AAT pursuant to section 149 and Schedule 2 of the Commonwealth Functions (Statutes Review) Act 1981.  The relevant part (Part VI) commenced on 1 July 1981.  This Act preserved the right of applicants affected by determinations made under the 1971 Act, before the commencement date, to seek review of those determinations by the AAT.  The time limit was 60 days after the commencement of Part VI.  Mr. Fisher did not avail himself of that opportunity to seek review at the AAT.

(g)The SRC Act of 1988 repealed the 1971 Act and preserved the right of applicants affected by determinations made under the 1971 Act to apply to the AAT for review of those determinations within 60 days of the commencement of the 1988 Act.  Mr. Fisher did not avail himself of that opportunity to seek review until 17 June 2004.

11.     The Tribunal takes the view that prima facie time limits should be enforced.  There does not seem to be much point in having time limits if they are to be routinely ignored.  However, the Tribunal is well aware that circumstances arise from time to time in which it would be unfair or create an injustice to enforce strict compliance with time limits.  The discretion to grant an extension of time is often given in cases where non-compliance with the time limit has been caused by factors which have been, to a large extent, beyond the control of the applicant, such as mental, physical or educational incapacity, geographic isolation, lack of knowledge of rights of review and other circumstances which make it desirable in the interests of justice to do so.

12.     In Mr. Fisher’s case, he made a conscious decision to not seek review of the 1978 Determination within the time limits because he believed, probably correctly, that he would not have been successful in any appeal at the time.  He gave no indication to the respective respondents for over 25 years that he had any intention of challenging the determination now sought to be reviewed.

13.     The Tribunal finds that:

(a)Mr. Fisher knew about his rights of review many years before he applied to the AAT for review.

(b)Mr. Fisher gave no indication for over 25 years that he intended to challenge the determination.

(c)Mr. Fisher suffers from no impediments which would have prevented him from applying for review within time.

(d)Mr. Fisher currently has no compensable injury.

(e)The Respondent would be severely prejudiced in attempting to check the details of the original claim and find witnesses to the circumstances surrounding the original injury.

(f)After such a length of time the various respondents over the years were entitled to expect that the matter had been finalised.

(g)Reviewing the determination would be a waste of time and expense for both the Respondent and the Tribunal.

14.     For the reasons given above, the Tribunal rejects the application for an extension of time within which to apply to the Tribunal for review.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
           B. Hitchcock, Personal Asst

Date/s of Hearing  13 August 2004
Date of Decision  13 September 2004
Solicitor for the Applicant           Mr. Fisher, himself 
Solicitor for the Respondent      Deacons