Johnston and Australian Postal Corporation
[2007] AATA 1687
•23 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1687
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200600564
GENERAL ADMINISTRATIVE DIVISION ) Re MALCOLM JOHNSTON Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Dr KS Levy RFD, Senior Member Date23 August 2007
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..................[Sgd]............................
SENIOR MEMBER
CATCHWORDS
COMPENSATION – Claims – notice of claim – elapse of time – whether notice 13 years earlier is sufficient – prejudice to respondent too great – decision affirmed
Freedom of Information Act 1982
Safety Rehabilitation and Compensation Act 1988
Administrative Appeals Tribunal Act 1975
Frosch v Comcare [2004] FCA 1642
Tierney and Reserve Bank of Australia (1988) 15 ALD 534
Luck and Comcare [1998] AATA 12663
Purkess v Crittenden (1965) 114 CLR 164
Holmes and Comcare [2001] AATA 290
Banks v Comcare [1996] FCA 382
Scutts and Department of Defence [1998] AATA 13085
Jones v Dunkel (1959) 101 CLR 298
Dowde and Comcare [1995] AATA 10159REASONS FOR DECISION
23 August 2007 Dr KS Levy, RFD, Senior Member Introduction
1. This is an application by Malcolm Johnston. He is appealing a decision of the respondent to reject his claim for compensation for medical and psychiatric conditions. Mr Johnston claims his conditions are attributable to his former employment with the Australian Postal Corporation.
2. The applicant worked for the respondent from 9 April 1975 until he accepted a voluntary early retirement package in December 1992. The applicant had a history of various related conditions prior to and during his employment, and the respondent was well aware of these conditions and the sensitivity of the applicant to seeking compensation for his illnesses. Following a number of claims for compensation during his period of employment, the latest application was abandoned prior to him accepting a voluntary early retirement.
3. Some 13 years after leaving the employ of the respondent, the applicant lodged a further claim for compensation on 5 July 2005. The respondent denied any liability in relation to those claims and formally rejected the applicant’s claims on 10 March 2006. Following the applicant’s request for review of that decision on 15 May 2006, a delegate of the respondent reconsidered it but affirmed the original determination on 17 July 2006. Mr Johnston now appeals to the Administrative Appeals Tribunal (“the Tribunal”) by application dated 14 August 2006.
Background
4. The respondent’s rejection of the applicant’s compensation refers to a claim dated 22 August 2005 and a further but previous claim in 1992, but this latter claim was withdrawn prior to the applicant accepting a redundancy payment. The decision to reject the applicant’s claims is based on what the decision maker reconsidering the decision refers to as a long history of difficult behaviours by the applicant in the workplace. It is said that the respondent would be prejudiced by an inability to get independent medical evidence at this late stage, of what the applicant’s condition was like in 1992 prior to his accepting a redundancy payment. It also determined that the primary reason for the applicant’s problems relates to a long standing personality disorder. Reference to a conflict between his treating psychiatrist and the medical services officer employed by the respondent in 1992 is considered to be a factor which might also prevent the respondent from objectively and fairly defending the claim so long after the applicant ceased work.
5.Mr Johnston now claims compensation for a number of conditions:
· Generalised anxiety disorder;
· Chronic post traumatic stress disorder;
· Pain disorder associated with psychological factors; and
· Allergic reactions resulting in skin and other disorders (T72 folio 270).
6. The applicant has submitted he first became aware of his illness on 13 November 1990, and that he first sought medical treatment for these conditions in 1992 (T72 folio 270).
7. Mr Johnston has previously made application to this Tribunal for review of decisions for non-supply of various documents under the Freedom of Information Act 1982. These related to email messages, ministerial correspondence and a third party report. The Tribunal, separately constituted, determined that documents requested should not be supplied to the applicant as they are exempt from disclosure.
8. Prior to the commencement of this hearing, the provision of documents by the respondent was protracted and I made certain directions for the provision of material to the applicant. That was in late 2006 and the respondent did not comply with those directions. At a subsequent face-to-face directions hearing in January 2007, the respondent’s legal representative was unable to provide detailed information except that the respondent had had some difficulty over the period of December 2006 / January 2007. No further instructions were able to be obtained. It was apparent there was information which was both sensitive and relevant. There may have been reason why all of the directions were not complied with, owing to the gathering of further information. There may also have been some lack of efficiency within the respondent’s administration, but there was no direct evidence for me to form a conclusion in that regard.
9. I granted a further extension for the serving of documents on the applicant, despite the applicant feeling somewhat aggrieved. In addition, the respondent submitted that certain documents should be subject to a confidentiality order. I examined those documents which were documents of a medical nature, including a confidential independent medical report. At that early stage of the hearing, there seemed to me to be sufficient reason to grant a confidentiality order as requested and I did so under s 35(2)(c) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”). That order prohibited disclosure of the contents of those documents to the applicant or to the general public until any further order was made.
Issues
10.The issues in dispute in this case are:
· whether Mr Johnston lodged his notice in writing in relation to his conditions as soon as practicable after he became aware of the injury in terms of s 53(1) of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”)?
· if Mr Johnston’s claim should be accepted, whether under s 53(3) of the SRC Act, the respondent would not be prejudiced by treating the application as a sufficient notice and / or for any other reasonable cause?
11. The applicant has submitted in his response to the Australian Postal Corporation’s outline of submissions, that s 53 cannot apply to his situation as it refers to an “injury” and has no relevance to his illness, disease or psychological conditions. That matter is dealt with under “Consideration” of the issues, the evidence and the legislation.
Legislative Framework
12. The relevant legislation to resolve the questions before the Tribunal are contained in sections 5A, 5B and 53 of the SRC Act.
13.Section 4(1) of the SRC Act defines “injury” and “disease” as follows:
(1) In this Act; unless the contrary intention appears:
………..
"injury" means:(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.”…
………..
"disease" means:(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.”.
14.Section 53 of the Act relevantly provides:
Notice of injury or loss of, or damage to, property
(1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:(a) as soon as practicable after the employee becomes aware of the injury; or
(b) if the employee dies without having become so aware or before it is practicable to serve such a notice--as soon as practicable after the employee's death.
………
(3) Where:(a) a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;the notice shall be taken to have been given under this section.
Evidence
15.The Tribunal noted the following documentary evidence:
Exhibit 1 - Document under section 37 of the Administrative Appeals Tribunal Act 1975 (Volume 1) (the T Documents);
Exhibit 2 - Document submitted under 37 of the Administrative Appeals Tribunal Act 1975 (Volume 2) (the T Documents);
Exhibit 3 - Affidavit by Neil Andrew Williams, Manager of Compensation Litigation in Queensland for the Respondent.
Mr Johnston
16. Mr Johnston referred to the investigation of allegations made by him in 2003. He noted that these were not mentioned anywhere in the documentary evidence. He told the Tribunal he discussed this with Nicole Barker of the Australian Government Solicitor’s office in September 2006, who at that time, had no knowledge of the investigation. He was unsuccessful in obtaining access to other documents under the Freedom of Information Act which he maintained refer to the report of September 2003. The report had not been made available to him.
17. As this information seemed of relevance to the questions to be decided by the Tribunal, the respondent was asked why this had not been made available. The Tribunal adjourned for 20 minutes while the respondent’s instructing solicitor made certain enquiries. On resuming the hearing, the Tribunal was informed that the report was not obtainable. Mr Johnston’s case is documented in submissions which he has placed on the record for consideration by the Tribunal.
18. In cross examination, Mr Clarke referred the applicant to his summary of 23 August 2004 (T59 folio 224). That submission referred to the applicant’s claims before the Human Rights and Equal Opportunity Commission (HREOC), which was based on the same submissions as in the present application before the Tribunal. The applicant was also referred to a number of attachments to his statement and summary of evidence submitted to the Tribunal dated 24 August 2004 (T61 folio 237). He was also referred to the applicant’s statement of facts and contentions dated 18 November 2004 (T63 folio 240 - 242) and to the decision of the Administrative Appeals Tribunal in relation to his application for review under the Freedom of Information Act (decision of Senior Member P McDermott, RFD, at folio T65).
19. Mr Johnston stated that his claim before the Human Rights and Equal Opportunity Commission (HREOC) was rejected in 2002. He then proceeded to make a claim for compensation which is the present matter under review. He referred to his claim in 1992 and asserted that he had been coerced to withdraw that application and that there was evidence in July 1992 of harassment by Australia Post. He was also concerned that the Australian Postal Corporation had denied his claim but had made no mention of medical evidence.
Mr Williams
20. Neil Andrew Williams gave sworn evidence. His affidavit of 3 November 2006 was available to the Tribunal (Exhibit 3).
21. Mr Williams stated that he is the manager of the Compensation Litigation Branch in Queensland with the respondent. He reviewed the papers when Mr Johnston’s application was received in 2005, and has power to investigate claims for the Australian Postal Corporation. His evidence, which is contained in his affidavit, notes the following:
·Mr Johnston lodged an application for compensation in 1985 when he was a personnel officer with the respondent. He had been in that position since 1981 and his claim was in relation to aggravation of a pre-existing anxiety / depression state. He noted that the applicant had two months sick leave in late 1984. On 7 July 1987 liability was accepted in respect of aggravation of the applicant’s pre-existing condition and the determination made that he was entitled to compensation at a rate equal to that which he would have been entitled had he been granted sick leave on full pay.
·There was a subsequent claim for compensation in 1992. The applicant was transferred to work in the compensation section of Australia Post in early 1992. That claim sought compensation for severe anxiety state, eczema and gastric reflux, which in attachments to that claim were allegations against a number of people and / or references to incidents in the workplace while he was at Australia Post. These related to the following:
i) Complaints about a former supervisor, Mr Dickman.
ii) Issues relating to a physical altercation with a Mr Bedwell in July 1987 where the applicant allegedly wrestled Mr Bedwell to the floor on two occasions on that date. The applicant was subsequently disciplined and fined. The disciplinary file was destroyed in February 1997.
iii) An issue with a Mr Klumpp who apparently had been a supervisor, involved a workplace dispute with Mr Johnston, resulting from an office joke. Mr Klumpp was also the person who was responsible for standing down Mr Johnston on the day of his physical altercation with Mr Bedwell. Mr Klumpp left the employment of Australia Post on 1 May 2003.
iv) There were some complaints made against another former supervisor, Mr Litschner.
v) A further verbal altercation with another senior officer, Mr Casey, was noted as being a relevant incident in the workplace (T13 folios 83-85). Mr Williams noted that the branch head at that time regarded Mr Johnston’s behaviour as unsatisfactory and a breach of the code of conduct, for which he was formally counselled. The papers relating to that incident were marked for destruction for 20 March 1994 (ST 13 folio 19).
22. Mr Williams noted also that Mr Johnston withdrew his claim for compensation in December 1992. His reasons for withdrawing that claim were set out as follows:
“ I hereby withdraw my claim for compensation of July 1992.
Presently I am fit for full duties and have been so since 14 September 1992.
There is no monetary gain involved in the claim but merely restoration of sick leave credits. It is my opinion that there is absolutely no point in continuing with said claim.
Further more I have no desire (nor are there any grounds for) lodging further claims for compensation against Australia Post.
Again there would be no point in doing so even if grounds did exist.
As far as I am concerned the subject of *compensation is closed.
Thanking you
Regards (signature)
Malcolm Frances Johnston AO4 unattached
PS. I do not believe I am suffering any condition related to my employment with Australia Post *
(signature) 30/12/92” (T27 folio 144)
23. Mr Williams noted that it would appear that Mr Johnston discussed the offer of a voluntary early retirement with a Dr Castrisos, the respondent’s then-medical services advisor, before accepting the offer of redundancy.
24. Mr Williams also noted the record made by Dr Castrisos was that in his discussions with Mr Johnston, Mr Johnston thought it was appropriate to make an additional statement (folio 144). Dr Castrisos’s note on file shows that he indicated to Mr Johnston he considered the decision to withdraw his compensation claim was separate from his decision to accept a voluntary early retirement. Dr Castrisos’s note shows Mr Johnston agreed with that and indicated that his decision regarding withdrawal of the claim “... might be seen as a sign of good faith in respect of his current attitude toward Australia Post” (T29 Folio 146).
25. Mr Williams stated in evidence (also in his affidavit) that a number of people upon whom the respondent would need to rely in assessing any claim by Mr Johnston, are no longer employed by the respondent. There were 13 such former employees, and all of whom have since left or retired from Australia Post. Their separation dates range from 1990 through to 2006. Mr Williams also indicated that the respondent would be prejudiced, as an independent psychiatric review was not pursued after Mr Johnston withdrew his claim in 1992. He also stated the claims by the applicant are complicated by similar claims being made relating to his employment with Centrelink.
26. Mr Williams was also asked about the investigation in 2003. He stated that he was aware of it but thought it was not relevant. He stated that he could give an accurate account of the history in relation to the available documentation without the 2003 report.
Submissions
27. Mr Clark made reference in his submissions to the evidence presented, and referred me to Frosch v Comcare [2004] FCA 1642 where the Federal Court held that a notice of injury must include essential information, including the nature of the injury or ailment, and its connection with employment and that “assessing whether the contents of a document meet those requirements involves, in my opinion, a question of law” (per Whitlam J at [8]). Mr Clark noted that Australia Post clearly had regard to the withdrawal of the claim on 29 December 1992 and there was then no further notice until 2005. In respect of section 53(3), Mr Clark referred me to Tierney and Reserve Bank of Australia (1988) 15 ALD 534 where the Tribunal said (at 535):
“Section 53 is clearly intended to protect the Commonwealth and its instrumentalities from being placed in a situation where they are unable to disprove and employees assertion of an injury alleged to have occurred on some specific occasion in the course of the employees work or of a disease contracted because of some brief and transient situation some such provision is clearly needed to prevent abuse of the Act. However, where an appropriate officer of the Commonwealth or the relevant instrumentality is made aware at an appropriate time of the alleged injury or disease and the circumstances in which it was suffered or contracted, the Commissioner and the Tribunal should, we believe, be slowed to hold that a claim for compensation for the incapacity resulting form that injury or disease must fail because Section 53 has not been complied with to the letter”.
With respect to the question of evidence, I was referred to the evidence submitted by Mr Williams, and also to Luck and Comcare [1998] AATA 12663 (a subsequent appeal from that decision was dismissed by the Federal Court).
28. Mr Johnston submitted that in relation to the withdrawal of his claim for compensation, Dr Castrisos told him to put the note after the “ps” in his statement in folio 144. He said Dr Castrisos told him if he did not do so, his voluntary early retirement would not be approved. He referred also to his claim against Centrelink. He said Centrelink maintained responsibility for any injury should lie with the Australian Postal Corporation, as that was the point in time at which the aggravation of his condition arose.
29. A late submission was received by Mr Johnston after the case closed and the decision was reserved. He enclosed a copy of a report by Dr Steve Buckland, specialist occupational physician, which was prepared for the purpose of assessing whether Mr Johnston should be retired from Centrelink. Dr Buckland concludes that Mr Johnston should not return to work. Mr Johnston refers to the report and states “Dr Buckland clearly refers to my suffering post traumatic stress disorder (PTSD) resulting from the appalling treatment I received from Australia Post…”
Consideration
30. I have taken into account all of the oral and written evidence and submissions of the parties. Indeed, I have spent a considerable amount of time in weighing the issues in this case. I have also taken account of the relevant statutory law and case law authorities in arriving at the correct and preferable decision in this matter.
31. The applicant claims s 53 does not apply to his circumstances. This is based on his reading of s 53 which refers to an “injury”. However, s 4(1) defines a “disease”, which undoubtedly fits the criteria of Mr Johnston’s conditions. An “injury” is also defined and is inclusive of the definition of “disease”. Therefore, it is clear the use of the term “injury” in s 53 encompasses Mr Johnston’s circumstances.
32. I note the extensive references to Mr Johnston’s personality and as having some difficulty with inter-personal issues in the workplace. These are quite extensive in relation to his employment with Australia Post and there seem to be similar references to his interactions at Centrelink. I note nevertheless quite positive references about his performance when working for Queensland Health in 1995. The extensive medical evidence leads me to make a finding of fact that Mr Johnston is a person of some sensitivity and reactivity in certain circumstances and that there was clearly a volatile personality in the workplace. Not withstanding that, I accept him as a witness of truth.
33. I find it curious that despite the vigorous protestations by Mr Johnston over a lengthy period of time, he would then subsequently withdraw his claim and assert there was no basis for his claim. Mr Johnston’s evidence is that he was coerced into making that statement by Dr Castrisos if he wished to receive a redundancy package. On the other hand, there could have been many motivations for doing so, perhaps merely to be able to separate himself from that organisation and have some funds on which he might then exist. He might also however have realised that much of the evidence might be against him and thought his case was not a strong one.
34. The difficulty for the Tribunal is that apart from the evidence of Mr Williams (who provided an historical account), together with the documents over which I placed a confidentiality order, neither Mr Johnston nor the respondent presented any witnesses. There were no medical witnesses available to present evidence or to be cross-examined. I have taken account of the late report of Dr Buckland supplied by Mr Johnston, even though it was received during the period while the decision was reserved. It is apparent that report was prepared for another purpose. Mr Johnston argued that Dr Buckland referred to Australia Post’s “appalling” treatment of him. I note Dr Buckland is accepting statements made by Mr Johnston without any confirmatory evidence and that his language was more moderate. It was also prepared some two weeks after the hearing had concluded and he was therefore not available for cross-examination. It is therefore of some weight as to his present medical status but is of limited weight in relation to his condition at the time that he ceased employment with Australia Post.
35. The weight of evidence depends on the degree of reliance which can be placed upon the evidence of Mr Johnston on the one hand and Mr Williams on the other, together with the documentary evidence available. Mr Johnston bears the evidential burden of proof and the persuasive burden of providing sufficient evidence to establish his application (Purkess v Crittenden (1965) 114 CLR 164). Mr Johnston did not call his treating psychiatrist, who, despite authoring written reports, may have assisted in elaborating on Mr Johnston’s conditions. The fact he did not do so was not helpful, and in light of the many assertions made must affect the weight which might have ultimately been put on his evidence (Jones v Dunkel (1959) 101 CLR 298).
36. I note Mr Clark’s submission that an applicant must give notice as soon as practicable. I am conscious also of the caution set out in Tierney where it was noted the Tribunal should not be too quick to hold that a mere chronological delay should disqualify an applicant, particularly where an officer of the Commonwealth or of one of its instrumentalities was aware of the injury or illness. Such was the case here. Mr Johnston’s conditions had been on the record of the Australian Postal Corporation for many years. It is apparent those issues were also on the record with Centrelink when he worked for that organisation. If they were all of the facts, I would be inclined to find in favour of Mr Johnston and allow him to ventilate his application (and regard his claim as adequate notice for the purposes of s 53(1)).
37. However there are other facts relevant in this case. Mr Johnston’s employment history is a colourful one. There were many other employees with which he had interactions, and often unpleasant ones. In some cases he displayed aggression and in particular, there were instances of physical aggression. On two occasions he was disciplined and the records were noted to that effect.
38. Important to the facts of this case is the withdrawal of the applicants claim in 1992. For whatever reason, he chose that course. He then indicated to the respondent that he no longer wished to pursue that claim. The withdrawal was unconditional and he expressly stated there were no grounds for pursuing a claim for compensation. His withdrawal was quite categorical. Not only did he expressly declare there were no grounds for any further claims, he said the subject of compensation was “closed”. In addition, he said he did not believe he was suffering from any condition in relation to his employment.
39. In addition to that indication to Australia Post, clearly, there is evidence of a pre-existing condition, and apportioning culpability some 13 (and now 15) years later could be problematical. Section 53(1) of the SRC Act requires notice to be given when the applicant becomes aware of his injury. This is not a case where he has only recently become aware of his condition. He was aware of it at least in 1990 and probably earlier. The Australian Postal Corporation is now left in a position of trying to defend such a matter if his claim is regarded as notice under s 53(1). The documents which they would have relied on, such as evidence of disciplinary documentation, have since been destroyed in good faith, and on the basis that no further claim would arise.
40.In my opinion s 53(1) is not satisfied.
41. In relation to s 53(3), paragraphs (a) and (b) are relevant. Consideration of s 53(3)(c) is necessary to determine whether the respondent would be prejudiced if the Tribunal held that the applicant’s claim should be regarded as being sufficient notice for the purposes of s 53(1). Each case must be viewed on its own merits. For example, a delay of 7 years was held to be prejudicial (Dowde and Comcare [1995] AATA 10159) whereas a claim for neck pain and pain in the upper right limb from computer use in the early 1990’s followed by a claim for compensation in 1998 was held not to be prejudicial (Holmes and Comcare [2001] AATA 290). In the latter case, a distinction was made between an injury or disease which occurs from a specific event or from a “brief and transient situation” as opposed to a situation where the injury or disease developed gradually over a long period of time and where the symptoms were not evident for some years.
42. In the present case, the condition suffered by the applicant was evident to the applicant and his employer from the early 1990’s. Indeed, it was in existence to some degree for some considerable time before 1992. Despite that, no claim was made for 13 years, and that is not inconsistent with the applicant’s statement at the time of withdrawal of his claim in 1992 so that he might obtain the benefit of a voluntary early retirement. The allegation of coercion by Dr Castrisos has not been advanced by any direct evidence and while I am circumspect about Australian Postal Corporation actions at that time, the invitation to obtain redundancy seemed to outweigh a decision to pursue a claim for compensation.
43. However, I would not regard the evidence of Mr Williams as to lack of medical evidence at the time of Mr Johnston’s severance from Australian Postal Corporation as being prejudicial. While there is the report of his treating psychiatrist, Dr Wilkie, there is also an independent medical report available which was obtained not long before the time in question, and which is presently subject to a confidentiality order. It is possible however, that doctor is no longer available. He may not be living or may not be in practice. In any event, that would not necessarily be a bar to admission of that documentary evidence and an assessment would need to be made as to the weight placed on that document in comparison to the evidence of Dr Wilkie and the statement of Dr Castrisos.
44. What would be prejudicial however, would be finding the 13 witnesses the respondent would wish to rely upon to provide contextual evidence about the circumstances of Mr Johnston’s employment so that a proper assessment might be made of his allegations of improper treatment. It is apparent from the evidence available (including the evidence of the confidential documents over which the Tribunal has made an order under s 35(2)(c) of the AAT Act) that those witnesses, or at least some of them, would be important in making an assessment of any degree of culpability on the respondent and in the context of the applicant’s contribution to inter-personal conflict with those against whom he makes allegations. I find that aspect would create prejudice for the respondent. In addition, the applicant’s withdrawal of his compensation claim in 1992 including his statements that there are no grounds for pursuing his claim, has prevented the respondent from the opportunity of retaining certain records which it might otherwise have kept in the event that it needed to defend a claim for compensation of which it was initially put on notice. That would create, in my view, a prejudicial effect on the respondent.
45. I must also consider whether there is any other reasonable cause for the purpose of s 53(3)(c) which might wave in the favour of Mr Johnston’s claim that sufficient notice was given. The term “reasonable cause” means “...some act or omission which operated to prevent the giving of notice and one which, in the circumstances prevailed is consistent with a reasonable standard of conduct, of such a nature that it might be expected to delay the giving of the necessary or claim” (Banks v Comcare [1996] FCA 382). The test however “..is an objective test but one which takes into account the subjective circumstances of the applicant in each case.” (Scutts and Department of Defence [1998] AATA 13085). There is no apparent reason to justify such a lengthy delay whereby the applicant was prevented from making an application very much earlier.
46. On the balance of the available evidence and applying the tests set in the cases referred to, I have formed the view that the correct or preferable decision is that the respondent would be unfairly prejudiced to allow this claim to be prosecuted after such an extraordinary period of time. This is not based on availability of available medical evidence, but on the basis of being able to find witnesses and documents which might objectively show the association between the injuries and the degree of culpability of the respondent.
47. Having considered the evidence in determining the issues before the Tribunal, it is necessary to revisit the orders I made on 1 February 2007 in relation to confidential medical correspondence. In light of my findings above, I now direct that those orders remain extant and the documents be returned to the respondent in tact.
48.In the circumstances the reviewable decision is affirmed.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, RFD, Senior Member.
Signed: .....................................................................................
S. O’Grady, AssociateDate of Hearing 4 June 2007
Date of Final Submissions 21 August 2007
Date of Decision 23 August 2007
For the applicant Self-represented
For the respondent Mr C Clark, of counsel
Australian Government Solicitor
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