James and Military Rehabilitation and Compensation Commission
[2007] AATA 1862
•17 October 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1862
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3554
VETERANS' APPEALS DIVISION ) Re PETER JAMES Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member Date17 October 2007
PlaceSydney
Decision The Tribunal has decided not to grant an extension of time.
.................[Sgd]......................
Ms Robin Hunt
Senior Member
CATCHWORDS
PROCEDURE – compensation claim – service in the Australian Army – effect of smoking and exposure to passive smoking claimed - application for extension of time to apply for review of decision - no evidence to explain delay or provide a basis for the exercise of the tribunal's discretion - application refused.– decision affirmed.
Safety Rehabilitation and Compensation Act 1988
Military Rehabilitation and Compensation Act 2004
Administrative Appeals Tribunal Act 1975
Hunter Valley Developments Ptd Ltd v Cohen (1984) 3 FCR 344
Re Johnson and the Commonwealth of Australia, 5 January 1990 AATA 5619
Re Francis Coorey and Secretary, Department Of Employment And Workplace Relations [2007] AATA 1017
Re Adrian Humphreys and Secretary, Department of Employment and Workplace Relations [2006] AATA 1030
Re Gary Ian Buchanan and Military Rehabilitation and Compensation Commission [2006] AATA 1028
Re Newitt and Secretary, Department of Employment and Workplace Relations [2006] AATA 432
Re Velitskos and Secretary, Department of Employment and Workplace Relations [2007] AATA 1430
Re Braodbent and Military Rehabilitation and Compensation Commission [2005] AATA 525
Re McCauley and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 624
Hawkins v Comcare [2001] FCA 726
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Wall and Comcare (Department of Defence) [2004] AATA 229
Re Samarasekera and Military Rehabilitation and Compensation Commission [2007] AATA 1726.
REASONS FOR DECISION
17 October 2007 Ms Robin Hunt, Senior Member SUMMARY
1. The applicant, Mr Peter James, has sought review of a decision rejecting his claim for rehabilitation and compensation in respect of his “blocked LAD (left anterior descending) bypass surgery”. Mr James failed to make application to the tribunal within the required time and has applied for an extension of time to lodge an application for review. Having carefully considered Mr James’s submissions and evidence and all the material before me I have decided not to grant an extension of time. My reasons are set out below.
BACKGROUND
2. The background to the claim is set out in the respondent’s facts and contentions filed with the tribunal. According to the respondent’s records, Mr James was born on 17 June 1953 and is 54 years of age. Mr James served with the Citizens Military Forces from 22 September 1972 to 4 June 1974 (approximately 20 months) and with the Australian Regular Army from 19 November 1974 to 16 April 1975 (approximately 5 months). On 14 April 1975, he was classified Class 1 - Fit for Discharge and left the service.
3. On 13 April 2005, Mr James submitted his claim for rehabilitation and compensation in respect of his “blocked LAD (left anterior descending) bypass surgery”. He underwent this surgery due to coronary artery disease which he attributes to having taken up smoking whilst in the army, along with being subjected to passive smoking during his army service.
4. On 21 July 2005, a delegate of the respondent determined the claim should be disallowed. The delegate found no causal link between Mr James’s surgery and referred, among other matters, to the report of Dr Richmond Jeremy, consultant cardiologist, dated 19 May 2005, which was provided by Mr James in support of his application. Dr Jeremy stated in his report that the causes of coronary artery disease are ‘multifactorial’, including family history, elevated cholesterol, diabetes, high blood pressure and cigarette smoking and it was “difficult to quantitate the exact contribution in any one individual”. On 15 August 2005, Mr James requested a reconsideration of the determination and, on 24 February 2006, a delegate of the respondent affirmed the determination of 21 July 2005.
5. The delegate accepted that Mr James suffered from coronary artery disease but found no evidence of a link between smoking and his military service. The respondent offered Mr James opportunities to provide additional material to the delegate, sending letters to him on 7 October 2005 and 21 December 2005 asking for more information. However, Mr James provided no additional material other than writing to say he believed his time in the service contributed to his having the heart surgery. The delegate found, on the available evidence, that his military employment did not cause, contribute to, accelerate or aggravate a smoking habit, which may ultimately have led to coronary artery disease. A copy of the letter notifying Mr James on 24 February 2006 about this reviewable decision informed him that, should he wish to apply to this tribunal for review of the decision, he must do so within 60 days.
6. Mr James made no application for review until approximately 18 months had passed. On 3 August 2007, Mr James filed an application for an extension of time for lodging an application for review of decision. Time for application to this tribunal is regulated by statutory provisions. Section 29 regulates the manner of applying to the tribunal for a review. Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) is modified by section 355 of the Military Rehabilitation and Compensation Act 2004 (the MRCA Act), prescribing the time for an application to the tribunal from a reviewable decision made under the MRCA Act. The time prescribed is 60 days after the day on which notice of the determination was given to the applicant. As the applicant in the present case was notified of the decision by letter dated 24 February 2006, the date for lodgement of his review application occurred passed in April 2006. Mr James has not disputed any of these background matters.
ISSUE
7. The issue before me is whether Mr James should be granted an extension of time to make application to the tribunal for review of the decision rejecting his claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for his heart condition.
CONSIDERATION AND FINDINGS
8. The tribunal is able to extend the time in which an applicant may lodge an application for review pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975. However, this is a discretionary power and is exercised only in appropriate circumstances. The principles applied by the tribunal when deciding whether to grant extensions of time are well established. Frequently, the tribunal adheres to principles set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. Also see Re Johnson and the Commonwealth of Australia, 5 January 1990 AATA 5619.
9. Factors relevant to the exercise of the discretionary power to extend time include the length of the delay and reasons for the delay. The length of delay in this case is significant, being over 15 months. Further, the respondent has pointed out that, if an extension is granted, it will be required to investigate events which occurred in 1975, 32 years ago. Prejudice to the other party in an application of this sort is another relevant factor for the tribunal’s consideration. See, for an example of where this was taken into account in refusing an extension, Re Francis Coorey and Secretary, Department Of Employment And Workplace Relations [2007] AATA 1017 at [11]. I accept that the respondent will suffer prejudice due to the length of time which has passed since Mr James served in the forces and that further records may be difficult to locate.
10. Even if the delay in making an application is not long, an extension of time may be refused. The respondent drew my attention to the case of Re Newitt and Secretary, Department of Employment and Workplace Relations [2006] AATA 432, where the applicant lodged his application for review 17 months after the original decision and 15 months after the reviewable decision. At [20] the tribunal stated:
[20] The Tribunal was referred to various decisions where similar applications have been refused. For instance in Re Garvey and Secretary, Department of Social Security (1991) 26 ALD 113, the Tribunal refused the application where the applicant was four months out of time and where there was no prospect of success. In Re Secretary, Department of Social Security v Durante (1994) AATA 9565, the Tribunal refused a departmental application for an extension of time where the extension was for one day and where no evidence was presented to explain the delay. In Re Bouvet and Secretary, Department of Social Security (1992) FCA 92/0216, the Federal Court refused an extension of time where there was no hope of success and where the appeal was not bona fide.
11. Mr James has not provided an explanation for the delay, other than stating he had been busy and that “I need this pension plus the back pay as soon as possible for personal and family reasons”. When giving oral evidence at the tribunal hearing, Mr James explained that he had met and married a woman who was living overseas. He had been unable to bring her to Australia and needed funds for this purpose. His wife was living and working in Dubai and he was anxious to re-unite with her. While this is an unfortunate situation for Mr James, he worry about his wife does not in my view explain and excuse his failure to deal with an application for review of his compensation claim in a timely fashion.
12. An applicant is responsible for ensuring that he or she actually lodges an application for review within time (see Re Adrian Humphreys and Secretary, Department of Employment and Workplace Relations [2007] AATA 1030 at [11]). The respondent’s records show it did notify Mr James of the time limits applicable for seeking review. Nevertheless, Mr James took no action to contest the decision for several months after notification. Mr James has been unwell, as his heart surgery indicates, but he has presented no evidence that he was hospitalised or suddenly incapacitated when the time for making application for review was passing (cf. Re Humphreys, supra, at [12]). Mr James also has not suggested he was in a disabling mental state at the time or unable to conduct his personal affairs for any other reason (cf. Re Gary Ian Buchanan and Military Rehabilitation and Compensation Commission [2006] AATA 1028 at [18]).
13. My James has given evidence about some financial hardship to the extent that he says his financial situation prevents his bringing his wife to Australia. However, he has not furnished evidence of his actual financial position. Further, in Re Velitskos and Secretary, Department of Employment and Workplace Relations [2007] AATA 1430, Associate Professor Davis (Tribunal Member), stated at [10]:
[10] While one can feel sympathy for an individual who needs financial support, …, the reality is that to activate a long-past case imposes a cost to the relevant department … and hence the Australian taxpayer.
14. The respondent went to some trouble detailing the prejudice and difficulties it would experience in dealing with Mr James’s late claim. These included:
(a)Inability to identify, locate or interview witnesses that served with the applicant and that can either verify or refute the applicant’s allegations regarding the commencement and circumstances of his smoking;
(b)Lack of any contemporaneous records confirming that the applicant commenced smoking during his service;
(c)Lack of any contemporaneous records confirming that the applicant was exposed to stressors that led to the commencements of his smoking;
(d)Inability to properly investigate whether the applicant commenced smoking prior to his military service;
(e)Lack of contemporaneous records confirming that the applicant continued smoking after his military service;
(f)Inability to properly investigate whether the applicant continued smoking after his military service;
(g)Lack of contemporaneous records and inability to investigate other stressors in the applicant’s life since his discharge (noting that since the applicant’s discharge he has only for approximately 3 years during the period 1985 to 1988).
(h)Lack of contemporanous records and inability to investigate matters which may otherwise account for the condition for which the applicant seeks compensation; and
(i)Inability to determine whether the applicant’s current condition was materially contributed to by his smoking or by passive smoking.
15. The respondent also drew my attention to the similarities the present case bears to Re Broadbent and Military Rehabilitation and Compensation Commission [2005] AATA 525, where the applicant was claiming (in 2003) compensation for the condition of ankylosing spondylitis which he claimed arose from his military service during 1960 to 1983. The tribunal in that case described prejudice to the respondent as:
[8] The question of prejudice to the Commonwealth is important given the length of delay. The determination subject to this extension of time for a review was made on 23 July 1973 — over 31 years ago. The passage of time can greatly prejudice the Commonwealth’s case. Evidence can be lost or destroyed and personal recollections of events can fade.
[9] At the telephone hearing the respondent said relevant file information is no longer available. The respondent expressed concern that there has been ample time for contributing factors to intervene in the applicant’s medical condition. The respondent has been unable to monitor such occurrences. It was also submitted that meaningful information can no longer be obtained and if such attempts were made new medical opinions sought would be highly speculative.
…
[11] Prejudice to the Commonwealth clearly exists in the present case. There has been an extraordinary delay which will make it harder for the Commonwealth to defend the claim. It would be difficult to find a more obvious case where an applicant has rested on his rights.
16. I also note potential prejudice to the wider public when other applicants generally must comply with the legislative provisions and lodge their applications within 60 days. See Re Newitt (supra) at [17] and Re McCauley and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 624 where the Tribunal stated at [18]:
There is potential prejudice to the wider public in allowing the applicant an extension of over 14 months to lodge a further application for review when other applicants are required to comply with legislative provisions and lodge their applications within 28 days.
17. Another case bearing some similarity to that of Mr James is Re Gary Ian Buchanan and Military Rehabilitation and Compensation Commission [2006] AATA 1028 where the Tribunal stated at [40]:
The only matter raised by the respondent was prejudice to the public “in terms of the cost of investigating claims relating to events that happened a long time ago and the delay in finalising those claims”. There is merit in this submission particularly in respect to an injury which is alleged to have occurred in 1971 and which so lacks supporting evidence
18. Another important consideration for the granting of an extension is the merit of the claim sought for review. The respondent concedes that the lack of merit in this case is not as clear cut as one which is unquestionably bound to fail. There have been successful claims based on smoking attributable to army service. Nevertheless, Mr James faces considerable hurdles before he can establish any merit to his claim. In order for him to succeed he needs to establish that his coronary artery disease was materially contributed to by his employment or that he had a smoking habit caused or materially contributed to by the performance of his duties in the Australian Army.
19. In this regard, the only recent medical evidence before me is the reports of Dr Richmond Jeremy, consultant cardiologist. In his short report dated 19 May 2005, Dr Jeremy records that Mr James gave him a history of smoking for a short period during his military service and made no mention of an overall history nor his opinion that there might be a causal link between the performance of his duties in the Australian Army and his coronary artery disease. Dr Jeremy reported that:
Mr James asked me whether his coronary artery disease might be a result of exposure to cigarette smoking amongst colleagues during his military service or to his brief period of cigarette smoking at the same time.
20. Dr Jeremy wrote to another medical practitioner on 9 May 2006 that Mr James was remarkably well after his surgery which had taken place almost two years previously. On 18 May 2007, Dr Jeremy wrote again to the same practitioner that he reviewed Mr James three years after his coronary grafting and was pleased to say he remained well. There was some discussion of medication for low blood pressure.
21. I accept that Mr James had coronary disease that required surgery but it is not at all clear that this bore any connection to Mr James’s army service. Mr James gave oral evidence that he did not smoke before he joined the Citizens Military Forces. He said that he had not previously smoked because he saw the damage it did to his grandfather, who died of a smoking related disease. He also gave evidence that he had been exposed to passive smoking by other soldiers. However, under questioning, he admitted that he had been exposed to some level of passive smoking in other employment he had undertaken outside the army.
22. The case of Hawkins v Comcare [2001] FCA 726 at [30] raises the issue of whether passive smoking did, on the balance of probabilities, materially contribute to that applicant’s coronary artery disease. The federal court concluded that, to establish whether a person's employment was a contributing factor in the contraction of a disease, it is not sufficient to find merely that the disease was contracted at the time a person was working in particular employment. Von Doussa J quoted the High Court judgment in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 which dealt with another statute but for practical purposes were similar to the Act being considered. Windeyer J in Federal Broom held:
When the Act speaks of `the employment' as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed. (at 641)
Mr James has not pointed to any particular characteristic of the work or conditions under which he performed in the army.
23. As I mentioned above, there have been cases where applicants have succeeded in claims that they developed a smoking habit in the army. One of these is the case of Wall and Comcare (Department of Defence) [2004] AATA 229. Wall’s case was upheld by the majority of the Full Federal Court while noting that the case was confined to its own facts. The Court said at para [35]:
It should not be assumed, from the result of this case, that compensation will be available to every former member of the Defence Force who can establish that he or she took up smoking during the military service and subsequently suffered a smoking-related accident or illness. In any particular case, it will be a question of fact whether there is a causal relationship between the person’s smoking during the period of military service and the onset of the accident or illness.
24. Other cases where claims like Mr James’s have sometimes been unsuccessful. In the recent decision of the tribunal in Re Samarasekera and Military Rehabilitation and Compensation Commission (31 August 2007). Senior Member Carstairs rejected a claim that army service caused Mr Samarasekera’s smoking habit. The senior member compared the conditions of service and observed at [26] to [29]:
26. I was satisfied that the facts in Mr Samarasekera’s case were very different from those in Wall. … Mr Wall was placed in rather different circumstances in the 1950s as a young National Serviceman taken away from his normal life – all matters to which Senior Member Allen specifically referred.
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28. … the incidence of smoking in the Army was much the same as in the general population and it is relevant, …, that the Army was not providing cigarettes to servicemen.
29. I was satisfied on the facts here that Mr Samarasekera’s Army service provided only the setting in which he increased his smoking levels. This was a matter of personal choice and there was no characteristic or feature of his employment in the Army or the duties (ancillary or otherwise) required of him, nor anything in the circumstances in which Mr Samarasekera was undertaking those duties that contributed to his smoking.
25. When comparing the circumstances in Re Hawkins and those in Re Samarasekera to those of Mr James, I am satisfied that he will have great difficulty in establishing a causal link between any passive cigarette smoke that he was exposed to during his military service or any acquired or aggravated smoking habit and his coronary artery disease. On balance, Mr James has not provided convincing evidence of his claims.
26. For all these reasons, the length of the delay, lack of any acceptable explanation for the delay, prejudice to the respondent, prejudice to the public, lack of merit and unlikely prospects of success, I have decided not to exercise the discretion under s 29(7) in favour of Mr James. This means his application for an extension is not successful.
DECISION
27. The Tribunal has decided not to grant an extension of time.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Robin Hunt
Signed: Talaishia Collis
AssociateDate/s of Hearing 13 September 2007
Date of Decision 17 October 2007
Solicitor for the Applicant Self-represented Applicant
Solicitor for the Respondent Mr Cameron Hutchins
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