Hull and Comcare - [2001] AATA 928

DECISION AND REASONS FOR DECISION [2001] AATA 928

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1461

GENERAL ADMINISTRATIVE DIVISION          )
           Re      BRUCE HULL
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date9 November 2001
PlaceSydney

Decision The Tribunal determines that for all the reasons nominated in this decision, an extension of time should not be granted to the Applicant to seek a review of the decision of the Respondent dated 11 May 1994.

[sgd} Dr J D Campbell
Member
CATCHWORDS
WORKERS' COMPENSATION - injury - determination - request for reconsideration - refusal because of time delay (two years) and no reasonable grounds or reasons to grant an extension of time - application for extension of time to lodge an appeal to Administrative Appeals Tribunal concerning the refusal to grant an extension of time by Comcare in 1994.

Safety, Rehabilitation and Compensation Act 1988 - sections 62, 63, 64, 65, 69, 72
Hunter Valley Developments Pty Ltd and Ors v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Comcare v A'Hearn (1993) 45 FCR 441
Telstra Corp Ltd v Razmovski (1994) 36 ALD 22
Barrett v Department of Social Security (1995) 38 ALD 609
Comcare v Willems,, Federal Court, 26 June 1996, 511/1995
Comcare v Willems (1996) 70 FCR 244
Maric v Comcare (1993) 40 FCR 244

REASONS FOR DECISION

Dr J D Campbell, Member

In this matter, Mr Bruce Hull ("the Applicant") seeks an extension of time to lodge an appeal before the Administrative Appeals Tribunal ("the Tribunal") concerning the decision taken by Comcare ("the Respondent") on 11 May 1994, that there were no reasonable grounds or reasons to grant an extension of time to review a decision of the Respondent dated 4 December 1991, with the request for reconsideration by the Applicant dated 6 December 1993 being denied.
A hearing was held before the Tribunal at Dubbo on 11 April 2001, at which the Applicant was represented by Mr Wilkins of Counsel. The Respondent was represented by Mr Elliott of Counsel. The Applicant, Mr Latham and Mr Brown presented oral evidence before the Tribunal.
The following material was placed into evidence before the Tribunal:

Exhibit No     Description    Date
T1 – T49 Pp1 – 95 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
T2       Chronology of Mr Hull's story
A1      Affidavit of the Applicant    4 December 2000
A2      Affidavit of Mr Latham, Solicitor    31 August 2000
A3      Affidavit of Mr Latham, Solicitor, including annexure    9 February 2001
A4      Taxation Return for the Applicant for financial years 1990/91 and 1991/92
R1      Affidavit of Mr A Brown      6 December 2000
R2      Affidavit of Mr Turner         2 March 2001
R3      Affidavit of Mr Day   3 March 2001
R4      Affidavit of Mr Hughes       3 March 2001
R5      Affidavit of Mr Sergyos       6 March 2001
R6      Affidavit of Mr Shillingford (excluding paragraph 22)     2 March 2001
R7      Taxation Returns for the Applicant for financial year 1988/89

Issues

The relevant issue in this matter…

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 Hull and Comcare

Details

AGLC: Hull and Comcare [2001] AATA 928
Case: [2001] AATA 928
Decision Date: 9 November 2001

CaseChat Overview and Summary

The case before the court involved a dispute between the Applicant, a former meat inspector, and Comcare, the respondent. The Applicant sought reconsideration and subsequent review of Comcare's refusal to extend the time for lodging a claim for compensation related to an alleged work injury sustained in 1989. The Applicant argued that the refusal to grant an extension of time was unjust and that he had a valid reason for the delay. The Federal Court was tasked with determining whether the Applicant's request for an extension of time was reasonable and whether the refusal by Comcare to grant such an extension was lawful.

The primary legal issue before the court was whether the Applicant had demonstrated reasonable grounds or reasons for the delay in lodging his claim for compensation, which would warrant an extension of time under the applicable legislation. The court had to consider the provisions of the Safety, Rehabilitation and Compensation Act 1988 and relevant case law to determine whether the refusal by Comcare to extend the time for lodging the claim was justified. Additionally, the court examined whether the Applicant's actions and explanations for the delay were sufficient to warrant a reconsideration of the refusal.

The court found that the Applicant had not provided reasonable grounds or reasons for the delay in lodging his claim. The Applicant had waited two years before seeking an extension of time, which the court deemed unreasonable. Furthermore, the Applicant's explanation for the delay, which included his resignation from his job and the purchase of a small hobby farm, was not deemed sufficient to warrant an extension of time. The court relied on the precedent set in previous cases, such as Hunter Valley Developments Pty Ltd and Ors v Cohen, Comcare v A'Hearn, and others, to support its decision. Consequently, the court upheld Comcare's refusal to grant an extension of time and dismissed the Applicant's application for review.

In light of the court's decision, it was ordered that the Applicant's application for review of the decision dated 11 May 1994 be dismissed. The court found no merit in the Applicant's arguments and affirmed the earlier determination by Comcare that the request for an extension of time was unjustified. The Applicant was not granted leave to appeal the decision to the Administrative Appeals Tribunal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act 1988 ("the Act") and in particular sections 62, 63, 64, 65, 69, 72.Background The Applicant was born on 5 February 1936 and commenced his career as a Meat Inspector with the Department of Primary Industry, later renamed Australian Quarantine and Inspection Service (AQIS) in 1976. The Applicant worked in various locations in Queensland, Victoria and New South Wales and in August 1988 was transferred from Bourke to Dubbo to work at Fletcher International Exports Pty Ltd, a private Abattoir. The Applicant lodged a claim for compensation with his employer on 21 September 1989. In this claim he indicated that he had injured his lower back at work on 24 July 1989, and that the injury to his back occurred as a consequence of long term back vertebrae and muscle stress arising from bad posture from working on hard and uneven floor surfaces (T4). A medical certificate from Dr Adams dated 11 September 1989 stated that he was suffering from lumbar back pain and would be unable to follow employment for one week (T3). A further medical certificate dated 25 September 1989, issued by Dr Dickens, indicated that the Applicant suffered from Lumbar Sacral Strain and was unable to follow employment for four days (T5). Following enquires by the Respondent dated 19 December 1989, the safety officer at the Abattoirs (Mr Hughes) wrote to the Respondent on 2 January 1990 with concerns about the slope of the floor in the inspection area at Fletchers, stating that he felt that this contributed to the Applicant's low back problem (T7). On 3 January 1990 Dr Dickens stated that the Applicant had consulted him on 21 July 1989, "when he was suffering from back strain, which I attributed to an awkward stance on a sloping floor at work". Dr Dickens stated that the Applicant was off work for three days and attended physiotherapy for three weeks (T8). On 5 January 1990 the Applicant forwarded the two reports referred to in the previous paragraph and indicated that the work place issue nominated had been corrected (T9). The Applicant stated that on 8 January 1990 he was notified by the Respondent that payment had been approved for the period 25 July 1989 to 28 July 1989 (Exhibit A1). Dr Adams certified, on 15 February 1990, that the Applicant was unfit for work from 14 February 1990 to 28 February 1990 because of lumbar back strain, for which he recommended physiotherapy (T10). The Respondent accepted liability on 23 April 1990, for the period 14 February 1990 to 18 February 1990 (T13). On 3 October 1990, Dr Dickens certified that the Applicant was unfit for work because of recurrent back pain for the period 3 October 1990 to 10 October 1990 (T14). Compensation was paid for this period by the Respondent on 21 November 1990 and the Applicant was invited to read the back of the letter, which details aspects of his right for reconsideration of the decision, stating that such a request must be made in writing, within 30 days and detail reasons for such reconsideration. General matters were also nominated in regards to a review of a reconsidered determination by the Tribunal (T16).

Evidence

Evidence Before The Court

On 18 January 1999 the Respondent concluded that the new claim is for circumstances and conditions that have already been dealt with by the Respondent (T44). Following a request for reconsideration by the Applicant's solicitors on 12 February 1999 (T45), a reconsideration was undertaken on 20 April 1999, which affirmed the decision of 15 January 1999 (T49). On 9 June 1999 the Applicant sought a review of the "reviewable decision" of 20 April 1999 by the Tribunal. As a consequence of a Directions hearing at the Tribunal on 25 January 2000, the Applicant's solicitors withdrew the application seeking a review with the action being formally dismissed on 8 February 2000. On 31 August 2000 the Applicant filed the current application that seeks to review the decision of 11 May 1994.Evidence the applicant: The Applicant described his job as a meat inspector for AQIS at the Fletcher's Abattoirs in Dubbo in 1988/89/90 as one which involved: The Applicant indicated that he had claimed compensation for his back while at work, that he was having difficulty with his work and told Mr John Hughes that he was leaving the job because of his back, knowing that the condition was not going to go away. After leaving work, the Applicant said he bought a small hobby farm at Narromine, which he worked for little income over the next five years. To supplement his income, he responded to an advertisement for a lawn mowing business, which he purchased, and was later successful in obtaining a mail-delivering contract. The Applicant indicated that he left his job to get away from the type of work he was doing and to give his back a rest. It was after a period of such rest that he felt he deserved compensation for his back and approached Baker's Solicitors after seeing an advertisement. The Applicant indicated that he did not really understand all the issues when Baker's received a negative response from the Respondent in relation to the extension of time issue in June 1994. In response to questions from Counsel for the Respondent, the Applicant indicated that he resigned some ten months after commencing work with the Department of Primary Industry (DPI) in Melbourne in 1976, and returned to Dubbo, where he worked delivering bread before rejoining DPI in Bourke in August 1977. After closure of the Abattoirs in Bourke, the Applicant was transferred to the City Council Abattoirs in Dubbo in February 1981, prior to being transferred to Camperdown, Victoria in April 1982. The Applicant stated that he moved about a lot, had no serious health problems, with medical checks-ups being arranged by DPI. The Applicant stated that in August 1988 or 1989 he joined Fletcher's International in Dubbo. The Applicant indicated that he might have received the letter dated 23 April 1990, with his notice of rights and acceptance of his compensation claim for lumbar back strain from the Respondent. Similarly, the Applicant stated that he might have also received the letters of 21 November 1990 (T16) and 4 December 1991 (T20) from the Respondent. In relation to the latter, the Applicant stated that he probably did not read the rights portion of the document and that he did not take enough notice of the document in its entirety, as he had already returned to work and the matter of voluntary redundancy had become an issue.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.