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 for application N1996/939 (T1). The Tribunal also had before it the transcript of evidence in relation to the hearing on 22 July 1998 (T2) and 11 February 1999 (T3) for application N1996/939. In addition, the following documents were tendered on behalf of the Applicant:

Statement of Applicant with annexures dated 13 July 2000 (exhibit A), Statements of Applicant dated 15 December 2000 (exhibit B) and 22 July 1998 (exhibit C)
Letter from Dr Doust dated 17 November 1997 (exhibit D).

The following documents were tendered on behalf of the Respondent:

Statement of Paul Ontong, Director, Military Compensation and Rehabilitation Service, dated 8 September 2000 (exhibit 1)
Report of Dr Adrian Mindel dated 28 November 1996 (exhibit 2).
Letter from Rear Admiral B T Treloar, AO, RAN (Rtd), dated 7 August 2000 (exhibit 3).

The Applicant lodged a claim for compensation in respect of gonococcal arthritis of his feet, knees, hips, thoracic spine, wrists and thumbs. He had enlisted in the Navy in 1952 and part of that service was in HMAS Arunta.
The Applicant noticed a penile discharge on 1 March 1955 and immediately attended the Petty Officer in charge of the sick bay in HMAS Arunta while it was anchored in Jervis Bay. The Applicant said that he and the Petty Officer concluded he was suffering from gonorrhoea. He said he asked whether treatment with penicillin would be commenced and was informed by the Petty Officer that he would be treated when the ship returned to Sydney. The Arunta returned to Sydney on 4 March 1995 and the Applicant was admitted to Balmoral Naval Hospital on the same day. However, he was not examined by a doctor until 7 March 1995 and treatment with 600,000 units of penicillin then commenced immediately. Pus cells were profuse on 7 March 1955. A four day course of Suphadiazine treatment was also administered on and from 9 March 1955. By 21 March 1955 his urine was clear of pus cells but by 3 April 1955 a further laboratory report recorded "pus cells profuse". In the meantime, on 21 March 1955 the Applicant reported a swollen knee, but no treatment was prescribed for his knee. On 23 March 1955 he had severe pain in his left hip and knee. Penicillin treatment recommenced at that time with an injection of 600,000 units. In December 1955 the arthritis had spread to the Applicant's toes of his right foot, and by late 1956 it had spread to his spine and his right hip. He received treatment from time to time thereafter until his discharge from the Navy on 14 August 1957. Much of that period was spent in hospital.
The Applicant was first examined by Dr Brodziak on 6 April 1955 and a diagnosis of "gonococcal joint" was raised as being "most suggestive", despite a negative GCFT test. The clinical notes indicate that Dr Brodziak, who treated the Applicant, continued to be uncertain as to whether the Applicant did have a "gonococcal joint", although included in the clinical notes is a record prepared in 1956 noting that the Applicant had been "informed that the gonorrhoea was the cause of his arthritis".
Dr Doust gave evidence for the Applicant at the hearing. He had been involved in the treatment of venereal disease in the British Navy from 1956 to 1958. He said that a negative GCFT test was of no significance. He also said that in 1955, if a person had a possible gonorrhoea contact and presented with symptoms such as those suffered by the Applicant, he would be treated as having gonococcal arthritis.
In Secretary Department of Defence v Gorton (2000) 98 FCR 497, Hill J held that the Tribunal had erred in law in failing to consider whether the Applicant's failure to make a claim within six months of the commencement of the 1959 Act prejudiced the Respondent or was occasioned by mistake, absence from Australia or other reasonable cause. The further evidence adduced by the parties at the hearing on 19 December 2000 was confined to that legal issue. On the basis of the decision of His Honour that the Tribunal had not made an error of law in considering "the merits" of the claim, the Tribunal merely reiterates its findings on the questions of fact in the previous proceedings. In substance, the Tribunal is reasonably satisfied that the Applicant developed gonococcal arthritis as a result of the delay in medical treatment of his gonorrhoea and he continues to suffer from the effects of gonococcal arthritis.
the relevant legislation
The Applicant's condition, the subject of this application, became manifest in 1955. Pursuant to s124 of the transitional provisions of the Safety Rehabilitation and Compensation Act 1988 ("the 1988 Act") the Tribunal is required to determine whether the Applicant was entitled to compensation under the Commonwealth Employees Compensation Act 1930 ("the 1930 Act"). The history of the 1930 Act was set out by His Honour in Gorton (supra).
The Commonwealth Employees' Compensation Act 1948 (No.61 of 1948) ("the 1948 Act") inserted into s4(1) of the 1930 Act the definitions of "injury" and "disease" . "Injury" was defined to mean:
any physical or mental injury and includes the aggravation, acceleration or recurrence of a pre-existing injury

and "disease" was defined to mean:

any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development, and also includes the aggravation, acceleration or recurrence of a pre-existing disease.

The 1948 Act also replaced s10 of the 1930 Act with the following provision –
10(1)    Where –
(a)       an employee is suffering from a disease and is thereby incapacitated for work; or
(b)       ….
and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the disease were a personal injury by accident arising out of or in the course of his employment.
Subsection (2) was added to s4 of the 1930 Act by the 1948 Act to provide –
In the application of the provisions of this Act to and in relation to an employee to whom section ten of this Act applies, any reference in those provisions to personal injury by accident arising out of or in the course of an employee's employment by the Commonwealth shall be read as including a reference to a disease due to the nature of the employment in which the first-mentioned employee was engaged by the Commonwealth.
At the time the Applicant's condition developed in 1955, s16 of the 1930 Act provided –
(1)The Commissioner shall not admit a claim for compensation under this Act for an injury unless notice of the accident has been served upon him as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth, and unless the claim for compensation has been made -
(a)       within six months from the occurrence of the accident; or
(b)       ....
Provided always that -
(i)        the want of or any defect or inaccuracy in the notice shall not prevent consideration of the claim by the Commissioner if he finds that the Commonwealth is not prejudiced by the want, defect or inaccuracy, or that the want, defect or inaccuracy was occasioned by mistake, absence from Australia or other reasonable cause; and
(ii)       the failure to make a claim within the period above specified shall not prevent consideration of the claim by the Commissioner if he finds that the failure was occasioned by mistake, absence from Australia or other reasonable cause."
(2)Notice in respect of any injury to which this Act applies shall contain the name and address of the person injured, and a statement in ordinary language of the cause of the injury and the date at which the accident happened.
(3)The notice may be served by sending it by post in a registered letter properly addressed to the Permanent Head or Chief Officer of the Department or authority in or by which the employee was employed at the time of the accident, or by delivering it at the head office of the Department or authority or to the officer in charge of the work on which the employee was so employed, or in any other prescribed manner.
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.
In his oral evidence he agreed that in 1955 he knew about "worker's compensation" in respect of a work injury, but he said he did not think about "compensation" in relation to his naval service. Instead, he thought about "a pension" in relation to that service.
The Applicant understood his treatment in the Balmoral Naval Hospital was part of his contract in joining the Navy. He agreed if part of that hospital treatment was defective it would be the basis for bringing a claim for compensation. However, he did not bring a claim for arthritis because he could not explain how the condition arose.
The Applicant said that in the 1980s he began to consider the possibility of a claim for compensation after his son had made a successful claim for pension in relation to arthritis arising from his service. The Tribunal notes the Applicant used the terms "compensation" and "pension" synonymously. When the Applicant applied for disability pension through the Department of Veterans' Affairs in 1988 he did not mention his belief that the arthritis arose from a delay in treatment of gonorrhoea. He said at that time he was still trying to conceal that information from his family and it was a matter of great personal embarrassment for him. It was only after his 1988 application failed, and his wife persisted in questioning him about the apparent inconsistency that their son had obtained a pension and the Applicant had not, that he revealed the incident of gonorrhoea.
Between 1988 and 1991 the Applicant consulted the local RSL club and RSL State Headquarters about relevant claims regarding his arthritis, but said he did not receive any constructive assistance. He returned to a new welfare officer in the RSL club in 1993 but again he was not assisted. He then returned to RSL State Headquarters in 1994 and only then was he directed to the appropriate location in the Department of Defence to lodge his claim for compensation. He acknowledged that at that time he did not know he was required under the 1930 Act to give notice to the Department of Defence of his condition.
In his oral evidence the Applicant admitted that while he was in the Navy he understood if he had a long-term injury or disability he would be entitled to a pension or to compensation. He said he began to associate his arthritis with the gonorrhoea while he was in hospital in the Navy, and had a suspicion that his arthritis was caused by the delay in commencing treatment. However he had not firmed his view on the matter. In his oral evidence he could not distinguish between the emergence of his knowledge that gonorrhoea caused his arthritis and that the arthritis was caused by a delay in treatment of the gonorrhoea. He said in 1956 someone had "affirmed his suspicion". That is consistent with an entry in the clinical notes from the Balmoral Naval Hospital (T9, p92) that "He was informed that the gonorrhoea was the cause of his arthritis". However he said he did not begin to consider the "delay in treatment" theory until the early 1990s before he mounted his case. He said there was no official statement about the cause of his arthritis by the time he left the Navy, and therefore he noted on his discharge papers that the cause was unknown.
The Applicant made no claim for compensation until 1994. At that time his claim was based on the delay in commencing treatment causing the later development of gonococcal arthritis.
The Applicant's evidence was that since his discharge he continued to experience pain from the arthritis, and this forced him in 1982 to discontinue a floor sanding business he started in 1965. He received social security payments from 1982 to 1988. He then resumed work in 1989 and subsequently had three severe attacks of arthritis that ultimately caused him to cease work and receive disability support pension in May 1994, shortly before lodging his claim for compensation.
The Applicant's evidence was that he had been told at the time he was discharged from the Navy that he was not entitled to any payment because he had sustained "a self inflicted injury". He realised in 1989 he needed to obtain evidence regarding the proper treatment of gonorrhoea in order to underpin his claim that gonococcal arthritis developed because of the Navy's failure to treat his gonorrhoea in a timely way. He admitted when he lodged his claim in 1994 he did not know of the requirements under the 1930 Act to give notice. He only learned of this during the earlier Tribunal proceedings. He said had he known of the requirement then he would have given notification of the condition in 1991.
Paul Ontong, Director, Military Compensation and Rehabilitation Service, provided a written statement (exhibit 1) in which he said the Respondent had been prejudiced because the Respondent had been unable to investigate the circumstances of the Applicant's disease properly. He said the Respondent has not had any opportunity to have the Applicant medically examined after he left the Navy until he lodged his claim for compensation on 21 July 1994. Due to the passage of time the Respondent has had considerable difficulty in obtaining evidence from witnesses, both medical and non-medical, who were present at the time of onset of the Applicant's condition, and who might recall non-work-related factors that contributed to or gave rise to the condition or who may have had other relevant evidence about the claim. Mr Ontong also said that due to the passage of time, any recollection such witnesses might have of the relevant events would not necessarily be reliable.

Mr Ontong said the Respondent was unable to adduce "firm evidence" as to whether a definitive diagnosis of gonorrhoea was made on 1 March 1955 and therefore the Respondent "is unable to address the Tribunal's finding that there was an unreasonable delay in the commencement of his treatment". Mr Ontong considered the Respondent was prejudiced because its expert witness had not practiced medicine in the 1950s, as had Dr Doust. If the medical aspects of the claim had been considered proximate to the onset of the disease "the knowledge of experts would have been more contemporaneous" and therefore more acceptable to the Tribunal because of the weight given to Dr Doust's evidence because of his relevant experience. Mr Ontong considered the Tribunal's findings that the medical evidence was "inconclusive" arose in part because of the antiquity of the disease.
In his oral evidence Mr Ontong said he had contacted Dr Treloar who told him that because of the time interval he did not have any recollection of treating the Applicant. Dr Treloar provided a report dated 7 August 2000 (exhibit 3) in which he stated –
The advice that I gave Mr Gorton in 1957 would have been based on advice from my superior officers. This was certainly a consistent view held by all service medical officers at that time.

The "advice" to which Dr Treloar referred is not clear, except when considered in the context of the Applicant's evidence.

Mr Ontong said he was not aware that Dr Brodziak was still working. He also said he developed a list of non-medical witnesses from the time of the onset of the disease. However, there is no evidence that he attempted to contact any of these people. He said he has not been able to identify the Petty Officer in the Arunta. It appears none of these investigations on behalf of the Respondent were attempted or commenced until about July 2000, after the matter was remitted to the Tribunal from the Federal Court.
submissions
Interpretation of s16(1) and s16(4)
The Tribunal notes the various submissions made by the parties on the interpretation of ss16(1) and (4) of the 1930 Act as amended by the 1959 Act. However in light of the decision of Hill J in Gorton (supra) the law on this point is now clear, viz. the whole of s16 is to be read as applying to the case of disease. The consequence is that the Applicant must make a claim for compensation within six months of the commencement of the 1959 Act. It is therefore unnecessary to consider the various interpretations of ss16(1) and (4) put forward by the parties.
The Tribunal accepts the submission for the Respondent that in accordance with the decision of Hill J in Gorton (supra) claims made after the commencement of the 1959 Act, pursuant to s16 of the 1930 Act, had to comply with s16 of the 1930 Act as amended, regardless of whether the claim related to a "disease" or "injury". Pursuant to s5(2) of the 1959 Amending Act the time limits for disease claims commence to operate from 4 December 1959. It was submitted that gonococcal arthritis was a disease for the purposes of the 1930 Act. Thus, the first issue for the Tribunal to consider is whether, pursuant to s16(4) of the 1959 Act, the Applicant notified his disease "as soon as practicable" after he first became aware of his condition, or as soon as practicable after the commencement of the 1959 Act.
Was the notification given "as soon as practicable"?
It was submitted for the Applicant that, applying the relevant legislation, there was no requirement in the 1930 Act that, at the time the disease of arthritis was contracted (in 1955), the Applicant had to notify the Commissioner of the disease. After the 1959 amendment diseases occurring before the date of the amendment had to be notified within six months of the commencement of the 1959 Act. Hence, in the Applicant's case, there was no legal requirement to give notice or make a claim, until six months after the commencement of the 1959 Act. It was submitted that in terms of showing a reasonable cause within s16 of the 1930 Act as amended (as at 1955), the Applicant had a reasonable cause for not notifying the Commissioner of the disease.
The Applicant relied on the decision of the Federal Court in Comcarev McGuire (1996) 68 FCR 329, where at 347 Carr J said –
… s16(4) governs the application of s16(1) above. Section 16(4)… provided a different test upon which to determine the issue where the respondent suffered a "disease" as defined by s54 of the 1930 Act. The applicant contends that the Tribunal erred in law "… in that it failed to consider and to apply the correct provisions, namely sub-section 16(4)".
In my view there are several answers to this contention. First, s16(4) governs the application of s16 "in accordance with section ten … in relation to a claim in respect of an employee who is suffering from a disease". Section 10 itself only applies where an employee is suffering from a disease and is thereby incapacitated for work …. This is not such a case. The present claim (if it had been made under the 1930 Act) would … have been made under s12 when read with the Third Schedule to that Act. The relevant "injury" is loss of hearing … If s9 has any relevance, the relevant "injury" is the pierced ear drum caused by the entry of bacteria and resulting in the loss of hearing. Alternatively, if s10 applies then its provisions when read with the definition of "disease" in s4(1) of the 1930 Act and the provisions of s4(2) require the word "injury" in s16(1) to include a disease of the type suffered from by the respondent.
… If the respondent's condition is to be regarded, for the purposes of the 1988 Act, as a disease and hence an injury then s7(4) of [the 1930 Act] deems the respondent to have sustained it when he first sought medical treatment for his left ear infection in late 1951 at the Concord Hospital. Accordingly s16(4), in my opinion, has no application to the present matter.
It was submitted for the Applicant that in this matter the Tribunal should take into account that the Applicant sought treatment in 1955, before the 1959 amendment was made. There was no s16(4) problem by virtue of the requirements to look at the situation as the Act then stood.
In the alternative, it was submitted for the Applicant that the consequence of s5 of the 1959 Act was that it had created a small six month window from the commencement of that Act in December 1959. If notice had been given within those six months then it would be deemed to have been given within six months of the contraction of the disease. It was submitted that because the Applicant did not use that six months the provisions of s5(2) of the 1959 Act had no application to the current proceedings. Once he had failed to notify of the condition within six months it was incumbent on him to explain, as soon as practicable, why there was a failure. To extend the requisite time for giving notice beyond six months would render otiose the need to show reasonable cause. It was submitted for the Applicant that he did not give notice as required because of his physical condition and because of the legislative framework at the time.
It was submitted for the Respondent that the effect of s5(2) of the 1959 Act is that notice of the disease had to be given as soon as practicable after the Applicant became aware of the disease. Applying this to the present circumstances, notice had to be given as soon as practicable after 4 December 1959. Furthermore, the legislation required the claim to be made within six months of 4 December 1959. It was submitted that under s16(1) of the 1930 Act notice had to be given reasonably promptly once the Applicant was aware of all material factors concerning his disease. It was submitted that if notice is not made promptly once the Applicant is in a position to do so, then prima facie the claim is not admissible. This is unless a proper explanation is given under the proviso that firstly, the Commonwealth is not prejudiced and secondly, there was mistake, absence from Australia or other reasonable cause. It was submitted for the Respondent that the Applicant was aware of his arthritis in 1959 but only firmed his view at some stage before 1994. However, at no stage during the time before the commencement of the proceedings did the Applicant give notice complying with s16(2).
It was submitted for the Respondent that there is no inconsistency between McGuire (supra) and Gorton (supra). McGuire was an injury case and therefore anything stated about disease is merely obiter dicta. However it was conceded that Hill J. in Gorton (supra) expressed different views and cast some doubt on the obiter dicta of McGuire. Furthermore, these opinions of Hill J. are not obiter dicta.
It was submitted for the Respondent that Hill J. in Gorton (supra) (at 512) expressly held that a claim for a disease was to be made within six months of it being contracted, but that there was also a period of six months from the commencement of the 1959 Act within which to lodge a claim. This six month period applied to cases where the condition existed prior to the commencement of the 1959 Act. If these requirements were not met then s16 had not been complied with.
It was submitted for the Respondent that s5 required notification of conditions as soon as practicable, and even when notification could not be given within the six month period it was an ongoing requirement. It was submitted that s16 was a binding provision in disease cases. The binding effect of Gorton (supra) was that the Tribunal had to determine whether a claim was made within six months after 4 December 1959, or whether it was given as soon as practicable after 1959. If those obligations are not fulfilled then the Tribunal must consider whether the failure to notify can be excused by the proviso in s16(1).
It was submitted for the Respondent, relying on Re Muras and Department of Defence (1998) 52 ALD 579 and Re Quinn and Comcare [1999] AATA 607, that mere admission to hospital or consultation with a doctor does not constitute notice for the purpose of s16. It was submitted the Applicant was in a position to provide notice in 1955, 1957 and certainly in 1959 when the requirement became operational. The Applicant had been told by doctors of the possibility "of a connection". It was submitted for the Respondent that, on the Applicant's evidence, the status of his mind at that time was that he had put together his suspicions of the situation but had not thought the issues through to a level comfortable enough for him to bring a claim. He had drawn an association between the delay in treatment and the fact that he had contracted gonococcal arthritis. However he did not think his evidence was firm enough to pursue his claim.
It was also submitted for the Respondent that by 1988 the Applicant had formed a view that all the above factors, as a matter of probability, led to the association of his arthritis with the delay in treatment for gonorrhoea. By then he had also confronted his personal embarrassment about disclosing the issue to his wife. This allowed him to formulate it further in his mind. It was submitted that the delay between 1988 and the date of the claim (21 July 1994; T3) is not as soon as practicable nor is it compliant with the requirement to give notice. It was submitted that the attempts by the Applicant to seek advice from the local RSL and RSL Headquarters indicated that he was in a position to make notification at that time.
Was there prejudice to the Commonwealth? s16(1)(a)(i)
It was submitted for the Applicant that even if the failure to give notice was not excused on the basis of reasonable cause, provided there was no prejudice to the Commonwealth then the claim could still be admitted. It was also submitted the concept of prejudice became relevant only if reasonable cause was not demonstrated. Prejudice was not relevant to the making of a claim or failure to make a claim in time. It was only relevant to the giving of notice.
It was submitted for the Applicant that Mr Ontong's statement would give the impression that active steps were taken at the relevant time to meet the claim for the direct cause of arthritis. However, in reality Mr Ontong made no attempt to contact Dr Treloar before July 2000, and therefore it was misleading to suggest that there was prejudice in meeting the final case. Furthermore, there was no prejudice demonstrated because there was no attempt to contact the relevant witnesses at a relevant time to determine whether or not those witnesses could give relevant evidence.
It was submitted for the Applicant that there was no dispute about the factual circumstances of the sexual encounter, contracting gonorrhoea, admission to hospital and suffering arthritis. The Applicant gave a statement at the time, and remained under the Navy's control until it exhausted its range of medical treatment. Reference was made to the comment of Dr Brodziak on 22 May 1957 that "all treatment had been tried but none successful". It was submitted this indicated a lack of prejudice to the Respondent because the Applicant had received the full range of possible treatment. This was not the type of matter where witnesses could be expected to assist.
Relying on the decision of the Tribunal Re Muras (supra) it was submitted for the Respondent that the interpretation of the word admit in s16 is to the effect that the Tribunal cannot entertain a claim without compliance with s16, and this was an important aspect in the issue of prejudice. The decisions in Australian National Airlines Commission & Anor v Cassidy (1969) 110 CLR 172 and Scott-Holland v Commonwealth (1983) 46 ALR 328 were authority in support of this principle. In Scott-Holland at 334, it was held that the word admit in the first paragraph of s16 meant 'entertain', not 'grant'.
It was submitted for the Respondent that the delay of 39 years between the contraction of the condition and notification of the accident raised practical difficulties in investigating the claim. The letter from Dr Treloar (exhibit 3) was evidence of his inability to recall the relevant detail. Muras (supra) was authority for the fact that a delay of that period would in itself cause prejudice. It was submitted the Applicant had relied upon conversations but he could not remember the direct form of speech that was used 30 years ago. He could not remember his interviewing officer. The people with whom the Applicant had conversations could not be identified readily to confirm or deny the Applicant's account. Even if they could be located, with such an effluxion of time it was doubtful that they could give accurate accounts of alleged conversations in 1955. It was submitted the full medical records of HMAS Arunta were not available and were crucial in determining whether the proper treatment was given. It was conceded that the Applicant might have been correct about that evidence but without the records the Respondent could not verify the details.
It was submitted for the Respondent that this case, by its nature, concerned a very controversial diagnosis. The Respondent had lost the opportunity to have the Applicant examined in a timely fashion by specialists in venereal disease who had practiced in that era. The efforts in 1955 were directed primarily at treating the Applicant's condition and only tangentially touch upon causation. It was submitted that the Tribunal expressed its earlier decision with uncertainty about the final conclusion but was reasonably satisfied. It was submitted that the uncertainty was a product of the delay. Despite the Tribunal judging that it could overcome the prejudice, this does not overcome the test. The test is whether the Respondent was prejudiced. It was submitted that there was clear evidence of prejudice.

Was there reasonable cause or mistake? s16(1)(a)(ii)

It was submitted for the Applicant that prior to the 1959 Act there was no requirement under s16(1) for notification of a disease. Flowing from this, the lack of requirement to give notice until within six months of the 1959 Act was itself a reasonable cause. This was a perennial cause, although it was conceded for the Applicant that he did not have an accrued right upon which he could rely.
It was submitted that if reasonable cause was not demonstrated through the lack or requirement to give notice then the Tribunal should look to the circumstances of the Applicant during the relevant period. It was submitted that he was confined to a hospital bed in constant pain. This was not the sort of situation where a person would be expected to give notice. The Navy had full knowledge of his injury, treatment and whereabouts. It was also submitted that the Applicant was mistaken at the time about the seriousness and long-term nature of his condition, and therefore he was under a mistake, that being a mixture of fact and law.
It was submitted for the Respondent that ignorance of one's right to bring a claim for compensation is not a reasonable cause or a mistake. It was conceded that a mistake of fact or law that goes to a genuine misunderstanding of a factual matter or the effect of the law is a mistake. The Applicant's inadvertence or failure to consider his rights because of his belief that his condition resulted from a self-inflicted injury did not amount to a mistake of law. It was merely a way of stating that there must be some contribution or fault from the Navy before a claim can be brought. The Applicant understood the need to show something beyond the mere sexual encounter. Furthermore, this did not explain the delay from 1988 to 1994 because at that stage the Applicant was aware of compensation entitlements needing to show a contribution from service.
Relying on the decisions in Commonwealth v Connors (1989) 86 ALR 247 at 251-2; Re Scutts and Department of Defence (AAT 13085, 10 July 1998) at para. 35; and Re Gallagher and Department of Defence [1999] AATA 269 at para. 31, it was submitted for the Respondent that failure to advert to the existence of one's rights does not constitute reasonable cause. Reasonable cause is some act of omission that operated to prevent the giving of notice.
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)

Applying His Honour's decision, the Tribunal disagrees with the submissions for the Applicant that there was no legal requirement in the 1930 Act for notification in respect of disease. That is quite contrary to the decision, viz. "the whole of s16 has to be read as applying to the case of disease". The Tribunal notes those submissions of the parties that are at odds with the decision of Hill J. in Gorton (supra). However, the Tribunal is bound to apply the decision of the Court, and does not intend, therefore, to address those submissions. The clear import of His Honour's decision is that it is incumbent on the Tribunal to apply the whole of s16 to the circumstances of this case. The effect of this is, firstly, the Applicant must make a claim for compensation within six months of the commencement of the 1959 Act. Secondly, the Applicant was required by the insertion of s16(4) in the 1959 Act, to notify of his disease as soon as practicable after he first became aware that he was suffering from gonococcal arthritis or as soon as practicable after the commencement of the 1959 Act. He was also required, pursuant to s16(2) and s16(4)(c), to give notice of the date at which, or the period during which, he contracted the disease. The Tribunal finds that the Applicant neither made a claim for compensation within six months of the commencement of the 1959 Act, nor did he serve such notice of the disease in the prescribed manner.
Notwithstanding the Applicant's failure to serve notice of his condition or make a claim for compensation in respect of gonococcal arthritis within the requisite period, the Tribunal finds that it was not practicable for him to give such notice or make such a claim, until he understood that his arthritic condition was associated with a delay in the commencement of his treatment. Indeed, if he could not make that link, both conceptually and evidentially, there was little point in seeking compensation. On the Applicant's evidence, which the Tribunal accepts, he had been told, and he accepted, that his gonorrhoea was a "self-inflicted" condition and therefore it was not compensable. It is logical, therefore, that he did not consider he had a reasonable claim for compensation for gonococcal arthritis unless a link could be made to relate it to his employment. He was not assisted by Dr Treloar or by the Interviewing Officer on his demobilisation, to understand that his condition had any link with his Navy service. Dr Treloar's report (exhibit 3), that referred to the advice he gave to the Applicant, "based on advice from my superior officers", is interpreted by the Tribunal to refer to the Applicant's evidence that Dr Treloar told him that he had to prove that the Navy was at fault before he could receive any payment in respect of his arthritis.
The Tribunal accepts the Applicant's evidence that he gave little further thought to the cause of his arthritis until the late 1980s, when a relative had arthritis accepted as being service related and the Applicant's wife persisted in asking why he too did not receive payment for his condition. Certainly when the Applicant's claim for disability pension was rejected by the Repatriation Commission in 1988 he was aware that a relationship had been inferred between his arthritic condition and the gonorrhoea he suffered in 1955 (T3, pp10-12). On his evidence, however, he knew this already. The rejection of his claim for disability pension in 1988 did not of itself enlighten him about the "delay in treatment" hypothesis. However, it provided the trigger for him to disclose to his wife that he had suffered from gonorrhoea, and to respond to the support she then gave him while he investigated his entitlement to some sort of payment for the condition. He sought his service medical records under Freedom of Information in December 1988 (T4, p68), that apparently assisted him in understanding the juxtaposition of relevant dates in the history of his gonorrhoea and the development of arthritis.
The best we can do with the evidence of the Applicant is to find that at some time between early 1989 and the lodgement of his claim for compensation he came to understand or at least suspect the "delay in treatment" hypothesis and the implications of this in his claiming compensation. The Tribunal notes that the statement attached to the Applicant's claim for compensation is very general in relation to the "delay in treatment" hypothesis. We find that even at that point his knowledge of that medical hypothesis was very tenuous. At most, the Applicant has delayed between some time during or after 1989 and July 1994 in lodging his compensation claim, after it was practicable to do so. Indeed, on one view of the evidence, it is not until the Applicant was given a copy of the report of Professor Sambrook (T15, dated 30 April 1996) that he had sufficient evidence for it to be practicable to proceed with his claim.
Taking into account all the evidence, the Tribunal finds that the lodgement by the Applicant of his claim for compensation in July 1994, in all the circumstances, was "as soon as practicable" after he first became aware that he was suffering from gonococcal arthritis. Until the Applicant had a proper understanding of the "delay in treatment" hypothesis, he was mistaken about the cause of his condition being essentially "self-inflicted". It was that mistaken belief, fundamentally, that caused the delay in the Applicant making his claim for compensation or in notifying the appropriate authority of the nature of his disease.
As the Applicant did not give the prescribed notice, the Tribunal is now required to consider the "provisos" in s16(1) of the 1930 Act. The Tribunal must consider whether the Commonwealth is prejudiced by the Applicant's failure to notify at the proper time. His failure to notify must be occasioned by "mistake … or other reasonable cause". There is no evidence that he was absent from Australia.
There is no doubt that the Navy was aware of the Applicant's medical condition and diagnosis of gonococcal arthritis, the nature of the treatment he received for the condition, and that he was discharged from the Navy on 14 August 1957 on grounds of invalidity because of this condition (T4, p66). His treatment records provide considerable helpful detail. The Tribunal notes that the Applicant, without the assistance of legal representation at the time, was able to procure a report from Dr Doust and arrange for him to attend the Tribunal to give evidence. The Tribunal does not accept the evidence of Mr Ontong, for the Respondent, that because of the lapse of time, the Respondent has been prevented from obtaining relevant expert medical evidence on the nature of treatment given in 1955 to persons suffering from gonorrhoea. There is no evidence before the Tribunal that the Respondent has actively sought such evidence and found that it was unobtainable. Indeed, such evidence could have been sought in 1996, when the Respondent obtained the report from Professor Sambrook that was also relevant and helpful in this matter. The Tribunal accepts that the Applicant could not recall the name of the Petty Officer in the sick bay he consulted while in the Arunta when it was anchored in Jervis Bay and the Respondent has been unable to trace the officer. However, the Tribunal does not consider that this disadvantages the Respondent in the light of the Tribunal's finding that the Applicant was a truthful and credible witness.
Mr Ontong would have the Tribunal believe that it has not been possible for the Respondent to obtain any relevant evidence in this matter because of the passage of time. However, of damning significance is that the claim was lodged in July 1994, and it was not until June 2000, some six years later, that the Respondent commenced its search of evidence about the circumstances of the Applicant's case. While Mr Ontong compiled a list of non-medical witnesses, there was no evidence provided to the Tribunal of the search for those witnesses. None were produced. We are left with the inference that no search was commenced beyond the compilation of the list. While Dr Treloar had been contacted and he provided a report of very limited usefulness, no apparent effort was made to ask Dr Treloar, whose role it was to treat the Applicant in the Navy, about the treatment of persons suffering from gonorrhoea. Presumably Dr Treloar has some relevant experience in that area. Apparently no effort was made to contact Dr Brodziak. No evidence was provided of attempts to obtain Navy policy regarding the reporting and treatment of venereal disease. In cases where no claim had been made in respect of a disease for a period of some 40 years, the Tribunal would in general be very concerned about prejudice to the Respondent. However in the present case, the Tribunal finds the way in which the Respondent conducted its investigations mitigate any such concern to a very large extent.
The Tribunal will now consider the issue of mistake or other reasonable cause. The Tribunal finds on the evidence that the Applicant was mistaken that his condition of gonococcal arthritis was a self-inflicted condition, when in fact the self-inflicted condition was gonorrhoea. The Applicant was required to submit to medical treatment provided by the Navy as part of his conditions of service. He attended the Petty Officer as required, as soon as he became aware of symptoms. He was unable to leave the Arunta and on his evidence he was advised that treatment would commence when the Arunta returned to Sydney. Indeed, that did happen, except that there was a further delay in commencing treatment from Friday afternoon when he was admitted to hospital to the following Monday when he was first examined by a doctor and relevant treatment commenced. The Tribunal finds that the delay in treatment was no fault of the Applicant and was the responsibility of the Navy. Ultimately, although he came to understand that his subsequent arthritic condition arose as a complication of the gonorrhoea, he was mistaken in his belief that it was a self-inflicted condition and therefore that he was precluded from eligibility for compensation. He held a rather "merged" concept of disability pension relating to war-service and compensation relating to injury or disease arising from the whole of his Navy service. He did not pursue either of these avenues until 1988 because of his mistaken belief.
When he came to an understanding about the "delay in treatment" hypothesis, another factor entered the equation. From the 1950s until 1988 the Applicant had not told anyone about having contracted gonorrhoea as he found this embarrassing. His embarrassment was minimised and he was facilitated to pursue the investigations necessary to bring his claim only when he had decided to confide in his wife and receive her support. To the extent that his embarrassment contributed to the delay in making his claim, the Tribunal finds that this constitutes an "other reasonable cause".
In conclusion, the Tribunal determines that the want of notice to the Commissioner has not prejudiced the Commonwealth and the want of notice to the Commissioner was occasioned by "mistake" and an "other reasonable cause". Therefore, the Applicant meets the provisions of s16, when taken as a whole, including the amendment to s16, by the 1959 insertion of s16(4).
The Tribunal has already found the Applicant's condition of gonococcal arthritis to be causally related to his Navy service because of the delay in the Navy treating his gonorrhoea. Therefore he is entitled to payment of compensation in respect of gonococcal arthritis, and the matter is remitted to the Respondent to determine the compensation payable to the Applicant in respect of that condition.
costs
It was submitted for the Respondent that s67(10) of the 1988 Act prevented an order for costs in respect of an application for extension of time, and that this was an application in respect of extension of time.
In relation to costs for the previous hearing (N1996/939), it was submitted that the matter had already been heard, determined and concluded in the Federal Court, and it would have been effected by Orders in the Federal Court. Therefore it would not be appropriate to make Orders for costs in the current proceedings for, in effect, a separate proceeding. It was also submitted for the Respondent that if the Respondent was successful in the current proceedings then the issue of costs in the previous proceedings does not arise because the earlier application would not have been in the Applicant's favour. Hence there would have been no proceedings in respect of which to make costs. It was submitted that there should not be a reconstitution of the Tribunal in relation to the earlier proceedings to deal with costs. However, if the Applicant were successful now, then the Respondent would carry any costs flowing from the earlier proceedings.
It was submitted for the Applicant that s67(10) of the 1988 Act only applies for an extension of time when applying to the Tribunal for the review of a reviewable decision. In this case there was no delay in bringing the application to review the decision. It was conceded for the Applicant that the only relevant costs in relation to the initial proceedings was that for the expert witness, Dr Doust. It was submitted for the Applicant that the Tribunal should be reconstituted as the determining body in the initial proceedings to deal with the application for costs in those proceedings.
The Tribunal rejects the submission that this hearing was in any way related to an extension of time. The reconsideration decision was made on 3 June 1996, and the application for review by this Tribunal was lodged on 1 August 1996. The Tribunal finds that the application to the Tribunal was in time.
The subject of this present application is confined to s16 of the 1930 Act, which is a preliminary part of the determination of the substantive issues. The Tribunal has now made a decision in favour of the Applicant, and hence he is entitled to his legal costs and disbursements in relation to these proceedings. The Tribunal will Order, therefore, that the Respondent pay the Applicant's costs, in accordance with the Tribunal's General Practice Direction.
The Tribunal has been similarly constituted in N1996/939 and the present matter remitted from the Federal Court. The Tribunal's decision in respect of N1996/939, that was favourable to the Applicant, was set aside by the Federal Court, and therefore there is in effect no surviving decision favourable to the Applicant in respect of N1996/939. The Tribunal notes that the only decision that is favourable to the Applicant is in respect of N2000/595. Therefore it is this present matter that should carry the costs. As the evidence taken in N1996/939 was accepted as evidence in the present proceedings, it is appropriate to include the costs incurred by the Applicant in N1996/939 in calculating his costs in respect of N2000/595.

I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis
Dr J D Campbell
Rear-Admiral Horton AO RAN
Signed:         .....................................................................................
  Associate
Date/s of Hearing  19 December 2000
Date of Decision  14 May 2001
Counsel for the Applicant        Mr B M Green
Solicitor for the Applicant         Mr R Williams, Roncolato Lawyers
Counsel for the Respondent    Mr G Elliott
Solicitor for the Respondent    Ms H Dejean, Australian Government Solicitor