Gorton and Comcare - [2001] AATA 403

DECISION AND REASONS FOR DECISION [2001] AATA 403

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N2000/595

GENERAL ADMINISTRATIVE DIVISION       )
           Re      Raymond Allen GORTON
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr J D Campbell, Member Rear-Admiral Horton AO RAN, Member

Date14 May 2001
PlaceSydney

Decision The Tribunal - 1. Sets aside the decision under review, being the reconsideration decision dated 3 June 1996, and in substitution therefor remits the matter to the Respondent for assessment of compensation payable to the Applicant with the Direction that at all relevant times the Applicant is entitled to receive compensation in respect of gonococcal arthritis pursuant to the Commonwealth Employees' Compensation Act 1930. 2. Orders that the Respondent pay the Applicant's costs of these proceedings pursuant to s67 of the Safety, Rehabilitation and Compensation Act 1988 as set out in the Tribunal's General Practice Direction.

..............................................
M T Lewis
Presiding Member

CATCHWORDS
COMPENSATION - whether Applicant suffered from gonococcal arthritis – whether condition caused by delay in treatment of gonorrhoea by the Navy -– whether requisite notice of disease was given pursuant to s16(1) of the Commonwealth Employees Compensation Act 1930 and s16(4) of the Commonwealth Employees Compensation Act 1959 – whether notice of disease was given "as soon as practicable" – whether Commonwealth prejudiced by Applicant's failure to notify of disease – whether failure to notify was occasioned by reasonable cause
COSTS – whether matter relates to an extension of time – whether costs covered by s67(10) Safety Rehabilitation and Compensation Act 1988 – whether costs of previous hearing and decision remitted by Federal Court for rehearing by Tribunal are included in costs related to present proceedings

Australian National Airlines Commission & Anor v Cassidy (1969) 110 CLR 172
Comcare v McGuire (1996) 68 FCR 329
Commonwealth v Connors (1989) 86 ALR 247
Re Gallagher and Department of Defence [1999] AATA 269
Re Muras and Department of Defence (1998) 52 ALD 579
Re Quinn and Comcare [1999] AATA 607
Re Scutts and Department of Defence (AAT 13085, 10 July 1998);
Scott-Holland v Commonwealth (1983) 46 ALR 328
Secretary, Department of Defence v Gorton (2000) 98 FCR 497

Safety, Rehabilitation and Compensation Act (Cth) 1988: s67(10), s124,
Commonwealth Employees Compensation Act 1930: ss4(1), 4(2), s10(1), ss16(1),(2),(3),(4)
Commonwealth Employees Compensation Act 1948 (No. 61 of 1948)
Commonwealth Employees Compensation Act 1959: s5(2)

REASONS FOR DECISION

Mrs M T Lewis, Senior Member Dr J D Campbell, Member Rear-Admiral Horton AO RAN (Rtd), Member

This is a matter remitted to the Tribunal by the Federal Court on 6 April 2000 for rehearing (Secretary Department of Defence v Gorton (2000) 98 FCR 497). The decision under review is a reconsideration decision of a delegate of Comcare ("the Respondent") on 3 June 1996, denying liability to pay compensation to Raymond Allen Gorton ("the Applicant") in respect of gonococcal arthritis.
The Tribunal had before it the documents lodged by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] AATA 403
Decision Date: 14 May 2001

CaseChat Overview and Summary

In Gorton v Comcare, the Australian Administrative Appeals Tribunal (AAT) reviewed a case concerning the eligibility of Mr. Gorton for compensation under the Commonwealth Employees Compensation Act 1930 (1930 Act) and its amendments. Mr. Gorton sought compensation for gonococcal arthritis, which he claimed developed due to a delay in the treatment of gonorrhoea while serving in the Navy. The central issue before the AAT was whether Mr. Gorton had complied with the statutory notice requirements regarding his disease, as stipulated by sections 16(1) and 16(4) of the 1930 Act, as amended by the Commonwealth Employees Compensation Act 1959 (1959 Act). Additionally, the AAT needed to determine if Mr. Gorton's failure to give timely notice prejudiced Comcare or if his failure was due to reasonable cause. The AAT also had to consider the issue of costs, specifically whether the matter constituted an extension of time and if the costs incurred in the previous hearing were to be included in the present proceedings.

The legal issues involved interpreting the notice provisions of the 1930 Act, as amended by the 1959 Act, to understand the obligations of Mr. Gorton. The Tribunal had to determine if the failure to notify within six months of the commencement of the 1959 Act prejudiced Comcare or if it was due to reasonable cause. The case law referenced, particularly the decision in Secretary, Department of Defence v Gorton (2000), highlighted the importance of giving effect to the legislative intent behind the 1959 amendments, which introduced a time limit for disease claims. The AAT was required to balance the need for a beneficial interpretation to the worker with the clear legislative policy established by the 1959 amendments. The Tribunal's previous decision had failed to adequately address these statutory requirements, leading to a rehearing by the AAT.

In its reasoning, the AAT found that Mr. Gorton suffered from gonococcal arthritis that first manifested in 1955, and his service in the Navy contributed to the development of this condition due to the delayed treatment of gonorrhoea. The Tribunal adopted its previous findings of fact and acknowledged that Mr. Gorton was not in a position to make a claim until he understood the link between his disease and the condition for which he sought compensation. The AAT recognized that the legislative intent of the 1959 amendments was to impose a time limit on disease claims, and it was erroneous not to consider whether Mr. Gorton's failure to comply with the notice requirements prejudiced Comcare or was due to reasonable cause. Consequently, the AAT found that it had erred in law by not properly addressing these statutory provisions in its previous decision. The case was remitted for rehearing to ensure that all relevant statutory requirements were fully considered.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 16 of the 1930 Act was amended by the Commonwealth Employees' Compensation Act 1959 ("the 1959 Act"). This amendment extended the provisions of s16 of the 1930 Act to include disease and subsection (4) was inserted. Of particular importance was s16(4)(a)(ii). This section required, in the case of a disease, that such notice was to be given "as soon as practicable" after the person became aware of the disease. Moreover, in the present case, s5(2) of the 1959 Act in effect required notice of the disease to be given "as soon as practicable" after the commencement of that Act.the issues and evidence now before the tribunal The issue that was remitted relates to the Tribunal's failure in its first decision to properly address s16 of the 1930 Act, as amended by the 1959 Act. Pursuant to s124(10) of the Safety, Rehabilitation and Compensation Act 1988 ("the 1988 Act") one is not entitled to compensation under the 1930 Act if one fails to satisfy s16 of the 1930 Act as amended by the insertion of s16(4) into that Act by the 1959 Act. The Tribunal will now turn to the evidence presented by the parties at the hearing on 19 December 2000, and then consider whether s16 has been satisfied. In his written statement dated 13 July 2000 (exhibit A) the Applicant stated, inter alia: 7. There was a discussion with Dr Brian Treloar (Surgeon Lieutenant, RAN) when he examined me [at the time of discharge from the Navy in 1957]. I said to him:Am I entitled to any pension of some kind for my arthritis and gonorrhea?He said: Can you prove it was the Navy's fault that you have the arthritis?I said:No, but it happened while I was in the Navy and I did not have it before I joined the Navy.He said: You will have to prove that the Navy was at fault to get a pension.I said: I can't do that.8. At that stage although I did consider it was the Navy's fault, I could not prove it and had no idea how to go about it.….12 During my interview with an Interviewing Officer on my demobilisation on about 2 August 1957, he asked me about Question 8 on my Form RAN DEMOB 2 dated 14 June 1957. He said: What do you mean by this answer?I said:I don't know if I'm entitled to a pension for my gonorrhoea and my arthritis, can you tell me?He said: I don't know, I'll make some enquiries (sic) and let you know.13. Two days later I returned to the Interviewing Officer. He said:I made enquiries (sic) about the claim for gonorrhoea and arthritis. You are not entitled to anything because it was self inflicted. In his oral evidence the Applicant acknowledged that the abovementioned discussion was not recorded verbatim but he considered in essence it was correct. He agreed he did not mention to Dr Treloar that he believed the arthritis arose from a delay in commencing treatment for gonorrhoea. However, he understood from Dr Treloar that he needed to establish a link between his service and the contraction of his arthritis. His general inquiries at the time about gonorrhoea were to the effect that it was self-inflicted. He also agreed it was unlikely he told the interviewing officer of the "delay in treatment" theory, that is, that the delay in the treatment of his gonorrhoea contributed to his contraction of arthritis.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It was submitted for the Respondent that when the Applicant filed his claim it was not particularly expansive. There was no sudden medical knowledge that appeared in the history to alert him to the scheme of his claim. He was well aware of the relevant medical matters beforehand. The only change in the history was when a relative obtained a pension and the Applicant gained the courage to tell his wife. In the meantime there was a delay. It was submitted that mistake is not made out on the facts.consideration of submissions and findings On the basis of the Tribunal's previous findings of fact, which have again been adopted in these proceedings, the Tribunal finds that the condition suffered by the Applicant, the subject of these proceedings, is gonococcal arthritis, that first manifested itself in 1955. The Tribunal has also found that contribution of his service in the Navy to the development of that condition was the delay in the commencement of treatment of the Applicant's gonorrhoea. It is axiomatic that until the Applicant was able to make the link between the delay in treatment for gonorrhoea and the development of gonococcal arthritis he was not in a position to make a claim for compensation in respect of gonococcal arthritis arising from his service in the Navy. Applying the decision of the Federal Court in Gorton (supra), the Tribunal notes that Hill J. has construed s16(1) to apply "prior to the 1959 amendments only to injury claims and not disease claims …". The 1959 Act "had the consequence that s16(4) was to relate back to disease occurring prior to the commencement date of the 1959 Act …". His Honour added in respect of s16(4) (at 62)–… it seems to me clear that the legislative policy was that [after the commencement of the 1959 Act] disease claims were to be not admitted unless the relevant notice was given and in the case of incapacity from disease the notice was required to be given within six months of the employee becoming aware that he was suffering from the disease. It is clear, beyond doubt, that the insertion of subs (4) had the consequence that the whole of s16 had to be read as applying to the case of disease and that this was to be achieved by the application of s4(2) of the 1930 Act.However, there remains to be considered the provisions of s5(2) of the 1959 Act … That section had the consequence that s16(4) was to relate back to disease occurring prior to the commencement date of the 1959 Act, but subject to the proviso that the notification period was extended to six months after the commencement date of the 1959 Act in a case where notice had not been served within six months of the occurrence of the disease, ie when the disease was contracted. Although the need to give a beneficial interpretation, where possible, is still there, the problem is that after 1959 the intention of Parliament is quite clear. To say … that after 1959 it was desirable that notification be given, but that there was no legislative sanction where timely notice was not given makes no sense of the 1959 amendment. Indeed such a construction gives no meaning at all to subs (4). The rule that the Court should give effect to the intention of Parliament must prevail over the otherwise accepted rule that legislation of this kind should be interpreted beneficially to the worker.…… On the view I have taken s16(4) was not intended to ameliorate anything, it was intended to make a time limit applicable to disease claims where it was not before. …In my opinion, therefore, [the Tribunal] did err in law in failing to consider whether Mr Gorton's failure to make a claim within six months of the commencement of the 1959 Act prejudiced Comcare or was occasioned by mistake, absence from Australia or other reasonable cause. (Tribunal's emphasis)