Lesueur and Military Rehabilitation and Compensation Commission

[2007] AATA 2052

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2052

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3332

VETERANS' APPEALS DIVISION		)
Re		PETER LESUEUR

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member

Date14 December 2007

PlaceSydney

Decision No extension of time for review is granted to Mr Lesueur pursuant to section 29(7) of the AAT Act.

.................[Sgd].........................

Ms Robin Hunt
  Senior Member

CATCHWORDS

PROCEDURE – application for extension of time to review decision - compensation claim – former Australian Army employee – fall  in 1969 – reviewable decision made in 1999 - consideration of  explanation for delay – consideration of merits of claim - insufficient basis for the exercise of the tribunal's discretion - application refused.

Safety Rehabilitation and Compensation Act 1988

Military Rehabilitation and Compensation Act 2004

Administrative Appeals Tribunal Act 1975

Commonwealth Employees Compensation Act 1930

Hunter Valley Developments Ptd Ltd v Cohen (1984) 3 FCR 344

Re Johnson and Commonwealth (1990) AATA 5619

In Re Bouvet and Secretary, Department of Social Security (1992) FCA 92/0216

MacPherson and Department of Defence (1998) AATA 13010

Re Harbutt and Department of Defence (1998) 51 ALD 159

Commonwealth v Connors (1989) 86 ALR 247

REASONS FOR DECISION

14 December 2007 Ms Robin Hunt, Senior Member   

summary

1.      Mr Peter William Lesueur, the applicant, has made a claim for compensation founded on an incident in 1969. Mr Lesueur lodged a claim for compensation in 1970 and again in 1997 before he made a further request through his solicitor on 16 March 2007 for reconsideration of the decision refusing him compensation. After the respondent, on 29 May 2007, denied him a further reconsideration of the reviewable decision made on 23 September 1999, Mr Lesueur applied to the tribunal, on 27 July 2007, for an extension of time to lodge an application for review of the decision made on 29 May 2007. After considering all the material before me, I have decided not to grant an extension of time to review any decision of the respondent. My reasons are set out below.

background

2.      There is no doubt Mr Lesueur injured his knee in 1969. Army records show Mr Lesueur enlisted in the Australian Army on 6 March 1968 and was discharged on 5 March 1971. On 4 September 1969, while living in army quarters, he injured his left knee and was admitted to 2 Military Hospital the following day, 5 September 1969. He was discharged from hospital on 29 September 1969. 

3.      Mr Lesueur has made more than one claim for compensation connected with his knee. The decision of 29 May 2007 which Mr Lesueur wishes to have reviewed concerned his compensation application made on 11 December 1997. Mr Lesueur’s application for compensation of 11 December 1997 was rejected on 11 February 1999 as the respondent’s delegate considered the injury had not arisen in the course of employment. Before making this determination, the respondent had examined records about the incident and invited Mr Lesueur to provide more information. Mr Lesueur wrote a letter on 10 December 1998 giving some more particulars.

4.      After the negative determination, Mr Lesueur’s sent further correspondence to the respondent. Mr Lesueur’s action was treated as a request for reconsideration. Then, on 23 September 1999, the respondent made a reconsideration decision rejecting Mr Lesueur’s claim on a somewhat different basis from the original determination. The respondent’s delegate refused the claim because Mr Lesueur had not complied with section 16 of the Commonwealth Employees Compensation Act 1930, that is, he had failed to make his claim within 6 months of the injury. The delegate noted Mr Lesueur made his claim 28 years after the injury. The delegate further observed that, even if he admitted the claim, he would not accept liability in the Commonwealth because, on the evidence, he could not be satisfied on the balance of probabilities that the injury arose out of or in the course of Mr Lesueur’s employment.

5.       Mr Lesueur’s solicitor wrote on 16 March 2007 suggesting that the reconsideration decision of 23 September 1999 had been made on an incorrect basis as the medical records available to the respondent were sufficient notice of the claim within the 6 month period. Nevertheless, the Commission denied Mr Lesueur a further reconsideration and advised him of this by letter dated 29 May 2007. Mr Lesueur, according to his form of application for review, is seeking an extension of time to lodge an application for review of the decision of 29 May 2007.

Issues

6. The issue for me is whether, pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 (AAT Act), as modified by section 65(4) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), I should grant an extension of time in which the applicant may have a review by the tribunal.

the reviewable decision

7.      The tribunal has power to review only those decisions covered by enactment. Only those decisions described as reviewable decisions under the SRC Act are reviewable by the tribunal. Under section 60 of the SRC Act, "reviewable decision" means a decision made under subsection 38(4) or section 62.  The word “decision” has the same meaning as under the AAT Act. Section 38(4) deals with review of certain determinations by Comcare and section 62 deals with reconsideration by an authority of determinations.

8.      Mr Lesueur set out in his application to the tribunal that he wanted review of the decision made on 29 May 2007. However, no reviewable decision was made on that day. The respondent simply informed Mr Lesueur that a determination had already been reconsidered and a reviewable decision was made on 23 September 1999. The respondent did not make any further reconsideration of its own motion or reconsider any fresh determination since 23 September 1999.  

9.      I have therefore proceeded on the basis that Mr Lesueur is seeking review of the outcome of the 1999 reconsideration, which is a reviewable decision. Mr Lesueur was advised of this decision and informed how to seek review by this tribunal in the respondent’s letter of 23 September 1999.

should Mr Lesueur be granted an extension?

10. The tribunal has discretionary power under section 29(7) of the AAT Act to extend the time for review. The usual period in which an application for review must be lodged with the Tribunal is 28 days (section 29(2)). However section 65(4) of the SRC Act modifies this provision with respect to claims under that Act and allows 60 days. The respondent’s letter of 23 September 1999 mentioned that the applicant had 60 days to apply to this tribunal for review of its decision. The delay in the present case in seeking review is thirty-eight years since the injury and over 7 years since the reviewable decision.

11.     I have considered whether there are grounds relevant to the exercise of discretion in Mr Lesueur’s favour. General principles for the grant of extensions of time are well established although the essence of discretion is that its exercise is particular to the facts of each case taken on its own merits. General principles are set out in cases such as Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and Re Johnson and Commonwealth, 1990 AATA 5619. I have examined Mr Lesueur’s case in light of those principles, in particular, the reasons for the delay, prejudice to the respondent and the public and the likely success or merits of the claim.

prejudice to the respondent

12.     If an extension is granted in Mr Lesueur’s case, the respondent will be required to investigate events which occurred in 1969, 38 years ago. Prejudice to the other party in an application of this sort is a relevant factor for the tribunal’s consideration. Although the respondent has some records available about the incident, it still may suffer prejudice because complete records may be difficult to locate. Witnesses to Mr Lesueur’s accident, and those who assisted him at the time or took statements from him, may be unavailable to give evidence. In addition, it is more difficult to assess the causation of Mr Lesueur’s condition after such a long passage of time. I have dealt with the quality of the evidence of causation available later in these reasons.

Delay in seeking compensation

13.     Factors relevant to the exercise of the discretionary power to extend time may include the length of the delay in making an application and reasons for the delay. The length of delay in this case is significant, being over 7 years since the date of the reviewable decision. Even if the delay in making an application is not long, an extension of time may be refused. For example, in the case of 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.

14.     Mr Lesueur, in an attachment to his ‘Application for Extension of Time for Lodging an Application for Review of Decision’ stated that he had delayed filing his Application for Review since September 1999 for the following reasons:

·     In 1996 his wife had a long period of undiagnosed ill health. Her medical condition had long term repercussions and it required lifestyle changes including relocation of the applicant’s family home from 50km out of town to a residence closer to town and medical facilities.

·     After submitted his claim on or about 15 December 1997 and received a negative response on 11 February 1999, he did not pursue it further at the time due to pressures of his wife’s condition and his own employment situation (he would attend TAFE every three weeks in Tamworth and was working as a welder during the days and a taxi driver at nights).

·     In September 2003 he was diagnosed with colon cancer and underwent an operation in October 2003.

·     In 2004 the applicant began employing his son as a labourer to assist with heavy work and to reduce climbing as much as possible due to the deterioration of both his knees. His son has a disability “in the Autistic spectrum”.

15.     Despite what Mr Lesueur says about his wife’s health in 1969, I note that he did claim compensation in 1970 and chose not to pursue it any further in 1971. While it did not appear on any records before me, Mr Lesueur gave evidence that he received an offer in 1971 but rejected it. Mr Lesueur gave further oral evidence that he submitted his claim in 1997 because he could not foresee the long term effects of the injury earlier.

16.     Mr Lesueur again chose not to pursue his claim further after a negative decision in 1999. The 1997 claim was reconsidered in 1999. He confirmed at the tribunal hearing that he recognised the respondent’s letter advising him of the reconsideration decision. When asked if he understood the document, given that it contained legal analysis of his claim and advised him of his review rights, he replied, “Yes, basically”.  

17.     He said he did not pursue any further action until 2007 for review of the 1999 decision because he took the rejection on face value. He thought it must be right until he spoke to some veterans and they suggested he seek legal opinion.

18. I am required according to section 29(7) to be satisfied that it is reasonable in all the circumstances to extend the time for an application. I do not consider that Mr Lesueur’s explanations for delay are reasonable. I also have concerns about the merits of his claim as set out below.

Merits of the claim

19.     The respondent has been able to locate quite a few records about Mr Lesueur’s fall and injury. These corroborate the date of the incident and Mr Lesueur’s hospitalisation. However, the causation is not clear even though the records before me are contemporaneous witness statements, notes and reports of the incident. The records variously report that Mr Lesueur was running at the time or walking at the time and give differing accounts of the surrounding circumstances. Mr Lesueur’s memory of the incident is also unreliable. He admitted when giving oral evidence that he could not recall some features of the incident.

20.     At the tribunal hearing, Mr Lesueur gave oral evidence that he and a group of colleagues were walking down a freshly polished hallway when he fell. There was residue from polish on the floor which caused him to slip and break his knee. The next day he went to Ingleburn Base Hospital, where he was admitted and stayed for at least three weeks. He then returned to work on restricted duties. When asked why he was walking down the hall at the time he injured his knee, Mr Lesueur said he was either walking to tea or to an emergency fire drill, he could not exactly recall.

21.     Various records about the accident were furnished to Mr Lesueur in 1979. The Department of Defence released its medical records to Mr Lesueur at his request, according to a letter addressed to him on 17 September 1997. These records give differing accounts of how Mr Lesueur injured his knee.

22.     The army’s medical records for Mr Lesueur comprise pages 38 to 159 of the tribunal documents furnished by the respondent. An in-patient case sheet at page 87 of these documents confirms Mr Lesueur’s hospital admission from 5 September 1969 to 29 September 1969 for a knee injury. The clinical notes on page 88 say that, on 5 September 1969, Mr Lesueur slipped and fell at 2030 hours. A further entry under the ‘history of disability and condition on examination’ says his knee suddenly gave way while he was running.

23.     An out-patient record made on 28 January 1970 commences at page 176 and states, in part, “spontaneous dislocation left patella 4^th September whilst walking along the street – 1^st episode. Since then recurrent giving way…”.  Mr Lesueur gave evidence that his injury did not happen while he was walking along the street and that the note at page 176 was wrong.

24.     An outpatient record, at page 49, was completed by Dr Bencsik, Orthopaedic surgeon, in the later part of 1970. These out-patient medical records show Mr Lesueur received further treatment that year and record:

02.01.70 - suffering a painful left knee (mainly just below the patella) on prolonged standing or walking or when weight bearing at acute angles. (T4 p 176)

28.01.70 - spontaneous dislocation left patella 4^th September whilst walking along the street – 1^st episode. Since then recurrent giving way – painful knee – no swelling. (T4, p 176).

25.02.70 - continues to give trouble in spite of physiotherapy – states he has noticed tendency for patella to re-dislocate. (T4, p 176)

03.06.70 -L patella dislocated 9/12 ago – was walking along at time. Since then has had recurrent lat dislocations … (T4, p 178)

27.8.70 - no pain, knee feels good. Still attending physio intermittently 3/12 post op (T3, p 69)

24.09.70 -Assessment – has full left knee movement and normal stability. Can run… I consider the man has made a full recovery and is now fit for normal duties. He tripped 3 days ago and has a haematoma medially over tibia. This is temporary and will settle. Discharged from clinic. (T3, p 69)

25.     I note, in particular, the surgeon records that, on 27 August 1970, Mr Lesueur’s knee felt ‘good’ but he was still ‘attending physio’ and that, on 24 September 1970, Mr Lesueur had “tripped 3 days ago” and had a haematoma over the tibia which would settle. The surgeon noted the knee did not need treatment. The following page contains clinical notes which state “patient (L) knee suddenly gave way while running”. Mr Lesueur agreed that the doctors would have gained their recorded versions of what occurred as a result of what he told them at the time.

26.     On 30 April 1970, the army appointed Captain P Florence as an ‘investigating officer’ in respect to the incident. He prepared and submitted a report about the circumstances of Mr Lesueur’s injury. Captain Florence’s report, dated 30 April 1970, notes that the injury was officially reported at 2045 hours on 4 September 1969. The report records that Mr Lesueur “slipped on a freshly polished floor in the corridor of the barrack accommodation”. It also noted that Mr Lesueur was “off duty” at the time, and stated Mr Lesueur had lodged a claim for compensation under the Commonwealth Employees Compensation Act 1930.  I note this report corroborates the approximate time of the injury at 2030 hours as well as confirming that Mr Lesueur was off-duty at the time. Captain Florence’s report for the first time on record says Mr Lesueur had been polishing the floor. The hospital and outpatient reports in 1969 and 1970 say Mr Lesueur had been running or walking down the corridor or hall. Mr Lesueur’s written statement accompanying his 1970 claim and the written statement of a witness say he was walking when he slipped and injured his knee.

27.     Major Christopherson submitted a claim on behalf of Mr Lesueur by way of a letter on 30 April 1970. Attached to the letter is a report of an injury and other written statements. Mr Lesueur completed a statement about his injury which is on a separate sheet and attached to the claim. The statement says he sustained his injury on 4 September 1969 at 2030 hours when he was off duty. Mr Lesueur stated: “whilst walking along the corridor of hut A7 I slipped on the freshly polished floor”. Private J Barnet was recorded as a witness and provided a witness statement dated 30 April 1970. Pte Barnet stated “Pte Lesueur apparently slipped on the floor which was highly polished at the time. His left foot skewed to one side and I saw him roll to the floor obviously in pain. He was clutching his left knee.” These statements also contrast with the later claim by Mr Lesueur that he had been polishing the floor at the time. 

28.     There is another report of an injury at page 29. It has been signed by the commanding officer on 30 April 1970 and includes a “statement of injured person” on the actual report form. Pte Barnet is again recorded as a witness. This version of Mr Lesueur’s statement says, “I could not get up of my own accord and was assisted to my bed by the undermentioned witness”.

29.     Mr Lesueur, at the tribunal hearing, agreed that if there was a fire drill at the time of his injury it was not likely that he would have gone to bed. There is also no mention of a fire drill in the signed statement of the witness, Pte Barnet, dated 30 April 1970. As Mr Lesueur had given evidence that he might have been going to tea rather than taking part in a fire drill, I asked if he recalled when he went to tea. He answered that he thought tea was served earlier than 1030 hours, the recorded time of the incident.

30.     In his letter supporting Mr Lesueur’s claim, written 30 April 1970 and copied at page 201, Major G J Christopherson wrote to Headquarters, Eastern Command, NSW, explaining the reasons why Mr Lesueur’s claim for compensation was submitted after the normal 6 month time limit. The Major set out:

a. The member first damaged his knee in September 1969. In late January 1970 he presented that AAF D11 to a specialist at 2 Military Hospital, INGLEBURN NSW. The member states he was informed that the AAF D11 could not be completed until after his operation had been done. The member then returned to his unit and awaited further direction from the hospital.

b.On a recent unit check of medical documents the incompleted AAF D11 was located in the member’s medical file. A further specialist appointment was made by the unit for the member. Admin Officer HQ 1 AASO contacted CO 2 Military Hospital informing him of previous action by the specialist in refusing to complete the AAF D11.

c.On 24 April 1970 the member again went to the hospital to get his AAF D11 filled out by the specialist. On this occasion, the administrative sergeant at CASUALTY informed the member that the AAF D11 could not be completed until after the operation.

d. The CC2 Military Hospital was again contacted and informed of above. The CO directed the member to go and see him personally and this resulted in completed of the AAF D11 on 28 April 1970.

31.     Mr Lesueur gave evidence he was admitted to 2 Military Hospital on 3 June 1970 for repositioning of his left patella tendon due to recurrent dislocation of the patella. He was discharged on 2 July 1970 on sedentary duties. This recollection accords with medical records at the time.

32.     Mr Lesueur underwent surgery to reposition his left patella tendon due to recurrent dislocation in June 1970, which improved the condition of his knee, according to Dr Bencsik. Mr Lesueur gave evidence that he suffered symptoms while he was still in the army and underwent physiotherapy both before and after surgery on his knee. It was noted by Dr Bencsik, orthopaedic surgeon, on 18 February 1971, that Mr Lesueur had suffered no further dislocations, although his knee gave way 1 month previously. He recorded the knee was basically good and noted good mobility of the knee and excellent power but lack of 5 degrees flexion.

33.     Before Mr Lesueur’s discharge from the army, a final medical board report was prepared. It is undated apart from a 1971 stamp and is at pages 187ff. It records on the first page that “L Patella Sept 1969 (gave way when running… knee continued to be painful and gave way recurrently and on 4.6.70 was admitted to 2MH – operation)”. This report noted Mr Lesueur’s remaining disability was “minor flexion disability L knee joint”. It further indicated that the injury was not attributable to service.   

34.     Mr Lesueur’s Discharge History Questionnaire, which he signed on 22 February 1971, indicates, at question 43, that Mr Lesueur had applied or intended to apply for a pension or compensation for an existing or prior disability. A handwritten response to question 43 states, “has applied for L knee disability”.

35.     Mr Lesueur gave evidence that he did not complete a claim form of the kind that he did in 1997, when he originally injured his knee in 1969. When asked if he completed a compensation form he gave evidence that he could not recall filling one out but he did recall being asked if he wanted to claim compensation. Mr Lesueur was shown the report of an injury or illness form dated 28 April 1970, at page 202 of the tribunal documents. When asked if he recognised the document, he replied “that’s correct”.

36.     Mr Lesueur‘s 1970 claim detailed in some of the records set out above did not result in compensation payment according to the material before me. In a benefit election record, dated 5 March 1971, Mr Lesueur indicated that he wished to claim compensation for permanent impairment. On this document, he also indicated that if his claim was accepted he did not wish to claim medical expenses. Mr Lesueur gave oral evidence that he rejected a subsequent offer of compensation. He said he rejected it on advice from his father and an orthopaedic surgeon, who suggested he wait and see if it was necessary to make a further claim.

37.     Since 1971, Mr Lesueur has carried on activities about which he gave some oral evidence.  After his service in the army, Mr Lesueur said he worked for the Commonwealth Bank as a teller and customer service officer, where he was mainly sitting down. He worked for the Bank for 16 to 17 years. He then left the bank for a change in direction and held various jobs until he eventually started his own business as a refrigeration technician. Mr Lesueur was a sole trader and laboured for around three years in Dubbo while also doing a TAFE course. Mr Lesueur said he had suffered a deterioration of his knee condition in the past 5 to 10 years and as a result his employment had suffered “with prolonged standing and walking no longer possible”.

38.     In view of the conflicting accounts of the accident and Mr Lesueur’s vague recollection of the exact time and circumstances, I have formed the view that his claim is unlikely to succeed. Further, I note the contemporaneous medical opinions that the injury had settled and required no further treatment. These inconsistencies are at least partly due to the lapse of time, which shows why a delay in applying for compensation is inadvisable and how a correct decision on the claim is difficult to make.

39.     As well, I find the available evidence does not support the contention that Mr Lesueur’s injury arose out of or in the course of his employment. Mr Lesueur’s representative, at the hearing, drew my attention to the tribunal case of MacPherson and Department of Defence (1998) AATA 13010. In that case, the tribunal stated:

… The courts will be more likely to find an injury occurred in the course of employment if it occurred in the midst of one overall period of employment … though of course it will still depend on the circumstances of the injury and the employee’s conduct.

In the instant case the Tribunal finds that the injury occurred on a Tuesday night/Wednesday morning when the applicant was obliged to be on base and in his dormitory. As a trainee in one of the disciplined forces, and living in dormitory conditions, he was subjected to RAAF discipline at all times. Sleeping in his room was an incident of his employment in these circumstances. On this view of the law an imaginary sober, well behaved aircraftman, who was injured when his bed collapsed would be found to have been injured in the course of his employment. It remains to be considered whether the applicant’s own conduct takes it outside of his employment.

40.     The MacPherson case bears some similarities to Mr Lesueur’s situation but Mr Lesueur has not shown that he was required to be on base and he has not shown conclusively that his conduct at the time was not the cause of the accident. For Mr Lesueur to ultimately succeed, he will need to establish that his knee injury arose out of or in the course of his Commonwealth employment. Mr Lesueur has variously claimed that the necessary causal link has been established because he was polishing the floor and also that he may have been participating in a compulsory fire drill, unless he was on his way to tea.

41.     I am not satisfied that the incident occurred while polishing the floor. Firstly, none of the records before me refer to Mr Lesueur polishing floors or participating in a fire drill when he was injured. If either were the case, Mr Lesueur would have provided this information at the time the incident occurred to his superiors and treating doctors. The only witness, Private Barnett, makes no mention of Mr Lesueur’s being engaged in polishing floors nor any mention of participating in a fire drill. Neither do the hospital records refer to any such circumstances.

42.     Because of all these shortcomings in Mr Lesueur’s account of his injury I am not satisfied that his injury arose in the course of his employment and I am not satisfied that his claim has much merit on the facts. In my view, his claim is not likely to succeed should he be given an extension of time to proceed.

43.     In addition, there are other obstructions to his late claim under the legislation discussed in the following paragraphs.

relevance of the 1930 legislative provisions

44.     The Commonwealth Employees Compensation Act 1930 (CECA 1930) is relevant to this matter as Mr Lesueur’s injury occurred on 4 September 1969. Section 124 of the SRC Act provides that compensation will be payable in respect of an injury if the compensation would have been payable “to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act”.

45.     An analysis of the 1930 Act shows that compensation would not be payable under that Act. Section 16 of the CECA 1930 provides:

16(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)in the case of death – within six months after advice of the death has been received by the claimant:

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. 

46.     The respondent has stated that they do not take issue with the late notice of the accident, although Mr Lesueur did not formally report the incident until 28 April 1970. However, under section 16 of CECA 1930, notice of the accident must be given within 6 months of the occurrence of the accident and the claim for compensation must also be made within 6 months of the occurrence of the accident, unless the Commissioner finds that the Commonwealth is not prejudiced by the defect and the failure to make the claim within that period was occasioned by mistake, absence from Australia or other reasonable excuse.

47.     There is nothing to suggest Mr Lesueur’s failure was occasioned by absence from Australia. Mr Lesueur was immediately aware of his injury and was admitted to 2 Military Hospital the day after its occurrence.  Mr Lesueur was made aware of possible compensation entitlements at least by the time the investigating officer’s report was completed in April 1970. Mr Lesueur however declined an offer according to his oral evidence and decided against pursuing any further claim for compensation in 1971, after advice from his father and an orthopaedic surgeon. Mr Lesueur, being well informed at the time, did not make any mistake of law or of fact that he has put to me but simply decided not to proceed with any further claim at the time and after rejecting an offer.

48.     As to whether Mr Lesueur’s failure to submit his claim within the required 6 month period was due to “other reasonable cause”, I can find no evidence of this. Mr Lesueur was not ignorant of his rights but decided not to pursue a claim. The history recounted by Mr Lesueur shows that while he may have nursed the idea of trying to claim again some time, he only decided to do so after a lapse of many years. Even if he was ignorant, as Northrop and Ryan JJ said in Commonwealth v Connors (1989) 86 ALR 247 at 252, “Ignorance, in the sense we have used it as signifying failure to advert to the existence of the right cannot of itself constitute “reasonable case” under the 1930 Act”.

49.     Because of these circumstances, I do not accept that Mr Lesueur had any ‘reasonable cause’ not to proceed in a timely fashion. I am satisfied that Mr Lesueur has not provided ‘reasonable cause’ for his delay under section 16 of the CECA 1930. Therefore, his claim is excluded for that reason as well as the lack of merit and excuse for delay under current provisions.

prejudice to the respondent and to the public

50. The current legislative provisions require applicants to lodge their applications for review within 60 days (section 29(7) AAT Act, Section 65(4) SRC Act). Potential prejudice arises not only to the respondent but to the public in allowing an extension of time. This is particularly so where there has been a delay of many years as in the present case.

Conclusion

51. For all these reasons, no extension of time for review should be granted to Mr Lesueur under section 29(7) of the AAT Act.

heading

52. No extension of time for review is granted to Mr Lesueur pursuant to section 29(7) of the AAT Act.

I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Ms R Hunt, Senior Member

Signed: [Talaishia Collis]
  Associate

Date/s of Hearing  17 October 2007
Date of Decision  14 December 2007
Counsel for the Applicant         Mr T Edwards
Solicitor for the Applicant          Mr P Young – Adams Leyland Lawyers

Solicitor for the Respondent     Mr C Hutchins