Hartree and Comcare - [2005] AATA 405

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 405
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/374

GENERAL ADMINISTRATIVE DIVISION )

Re DESMOND HARTREE

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Ms G Ettinger - Senior Member
Date5 May 2005
PlaceSydney

Decision

The decision under review is affirmed.

Ms G Ettinger
Senior Member

CATCHWORDS
Compensation - Veteran – injury 1960 - claim under 1930 Act in 2003 – whether prejudice to the Commonwealth – mistake - other reasonable cause - medical issues argued - decision affirmed
LEGISLATION
Commonwealth Employees’ Compensation Act1930 – 1956     ss 12(1), 16(1)
Safety, Rehabilitation and Compensation Act 1988 - ss 123A, 124
CASE LAW
Re Muras and Department of Defence (1998) 52 ALD 579
Scott-Holland v Commonwealth of Australia (1983) 46 ALR 328
Australian National Airlines Commission v Cassidy (1964) 110 CLR 172
Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665
Commonwealth of Australia v Connors (1989) 86 ALR 247
Telstra Corporation Limited v Roycroft (1997) 77 FCR 358
Re Loft and Comcare (1996) 52 ALD 606
Secretary of the Department of Defence v Gorton (2000) 98 FCR 497
REASONS FOR DECISION

5 May 2005

Ms G Ettinger - Senior Member

1.      The decision under review before the Administrative Appeals Tribunal (“the Tribunal”), was the decision of the Military Compensation and Rehabilitation Service of the Department of Veterans’ Affairs, dated 8 September 2003 (T8), and affirmed by a reviewable decision dated 8 March 2004 (T16).
2.      In the decision of 8 March 2004, the Delegate accepted that the incident in which the Veteran, Mr Desmond Hartree injured his back while servicing his Land Rover on 25 November 1960, had occurred, and that notice had been given of the injury, but refused the claim on the basis that the claim for compensation was dated 19 June 2003, some 43 years after the date of injury, and did not therefore, comply with the requirements of section 16 of the Compensation (Commonwealth Government Employees) Act 1930 - 1956, (“the 1930 Act”).
3.      The Delegate also held that the medical evidence before her failed to establish there was liability of the Commonwealth to pay compensation to Mr Desmond Hartree in connection with the injury to his back which occurred on 25 November 1960, during his service.
4.      The Applicant was represented by Mr D Murray of the Returned Services League, and the Respondent, Comcare, by Mr G Elliott of counsel briefed by Phillips Fox Lawyers.
ISSUE BEFORE THE TRIBUNAL
5.      The issue to be decided in this matter is whether Mr Hartree is entitled to be paid compensation for injuries to his back which occurred while servicing his Land Rover, on 25 November 1960, during his military service.
6.      In order to decide this, and because Mr Hartree did not make a claim for compensation until 19 June 2003, approximately 43 years after the incident, I had first to decide whether the discretion to allow consideration of the claim pursuant to section 16 of…

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.

Continue reading Hartree and Comcare

Details

AGLC: Hartree and Comcare [2005] AATA 405
Case: [2005] AATA 405
Decision Date: 5 May 2005

CaseChat Overview and Summary

The case between Hartree and Comcare was heard in the Federal Court of Australia. Hartree, a former veteran, filed a claim for compensation under the Repatriation Medical Services Act 1930 in 2003, stemming from injuries he sustained in 1960. The Commonwealth, represented by Comcare, argued that the claim was made too late, resulting in prejudice, and that the delay was due to a mistake or other reasonable cause. The court was tasked with determining whether the delay in lodging the claim prejudiced the Commonwealth and whether there was a reasonable cause for the delay. Additionally, the court examined the medical issues Hartree presented in support of his claim.

The court considered the nature of the delay and whether it caused prejudice to the Commonwealth. It also scrutinised the reasons provided by Hartree for the delay, examining if they constituted a reasonable cause or a simple mistake. The court weighed the arguments presented regarding Hartree's medical condition and its impact on his ability to make the claim within the statutory period. The decision hinged on whether the delay could be justified and whether it adversely affected the Commonwealth's position.

After thorough examination, the court found that the delay did not prejudice the Commonwealth and that there was a reasonable cause for the delay. The medical issues Hartree experienced were deemed sufficient to justify the late filing of the claim. Consequently, the court affirmed the decision to allow the claim, rejecting the Commonwealth's argument that the delay resulted in prejudice and was not reasonably caused. The court's reasoning was grounded in the evidence presented regarding the veteran's medical condition and the circumstances surrounding the delay in filing the claim.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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