Peterson and Comcare - [2003] AATA 74

DECISION AND REASONS FOR DECISION [2003] AATA 74

ADMINISTRATIVE APPEALS TRIBUNAL ) No N2001/1051, N2001/1601

) N2001/1602,N2001/1603

GENERAL ADMINISTRATIVE DIVISION ) N2001/1604

Re      Robert Peterson
  Applicant
           And    Comcare
  Respondent
DECISION

Tribunal Ms S M Bullock, Senior Member Dr P D Lynch, Member

Date24 January 2003
PlaceSydney

Decision The decisions under review are affirmed.

..............................................
Ms S M Bullock
Presiding Member

CATCHWORDS
WORKERS COMPENSATION – Transitional Provisions – Incapacity – Whether Notice of Injury and Claim for Compensation Served within Time – Whether Want or Defect of Notice or Claim Occasioned by Mistake or Other Reasonable Cause – Distinction Between Mistake and Ignorance.

LEGISLATION
Commonwealth Employees' Compensation Act 1930 ss9, 16
Compensation (Commonwealth Government Employees) Act 1971 ss27, 53, 54
Safety, Rehabilitation and Compensation Act 1988 ss62, 123, 123A, 124

AUTHORITIES
Commonwealth of Australia v Connors (1989) 86 ALR 247; (1989) 17 ALD 313
Scott-Holland v Commonwealth of Australia (1983) 46 ALR 328
Secretary of the Department of Veterans' Affairs v Studdert [2001] FCA 1642
Re Muras and Department of Defence (1998) 52 ALD 579
Telstra Corporation Limited v Roycroft (1997) 77 FCR 358
Banks v Comcare Australia, Federal Court, 22 May 1996, 118/1994
Johnston v The Commonwealth (1982) 150 CLR 331
Re Willis and Australian Telecommunications Commission and Commonwealth of Australia (1989) 19 ALD 665

REASONS FOR DECISION

24 January 2003 Ms S M Bullock, Senior Member Dr P D Lynch, Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by the Applicant, Mr Robert Peterson of five reviewable decisions made on:
(a)      27 May 2001 (T10, N2001/1051) by a Delegate of the Respondent, Comcare, that affirmed a determination dated 21 February 2001 (T5, N2001/1051) to cease liability for the condition of "haematoma right quadriceps" on and from 15 September 1982;
(b)      7 September 2001 (T16, N2001/1601) which affirmed a determination of 29 May 2001 (T13, N2001/1601) which denied liability for compensation for a fractured neck;
(c)       7 September 2001 (T9, N2001/1602) which revoked a determination of the Respondent dated 21 May 2001 (T6, N2001/1602) which accepted liability for dislocated left shoulder with effect from 7 August 1978 ceasing liability from 27 September 1982;
(d)      7 September 2001 (T9, N2001/1603) which revoked a determination dated 24 May 2001 (T7, N2001/1603) which accepted the claim for dislocated right shoulder with effect from 4 September 1966 ceasing liability on 15 September 1982;
(e)      7 September 2001 (T9, N2001/1604) which revoked a determination of 21 May 2001 (T7, N2001/1604) which accepted liability for a broken third and fourth fingers of the right hand with effect from 8 June 1970 ceasing liability on 15 September 1982.
A Hearing was held in Sydney on 28 May 2002. Mr Peterson was self-represented. The Respondent was represented by Mr G Johnson of Counsel. Oral evidence was provided by Mr Peterson in addition to evidence provided by Dr J A Connolly, General Surgeon. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals…

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 Peterson and Comcare

Details

AGLC: Peterson and Comcare [2003] AATA 74
Case: [2003] AATA 74
Decision Date: 24 January 2003

CaseChat Overview and Summary

The case involved Peterson, the appellant, and Comcare, the respondent, who were before the Full Court of the Federal Circuit and Family Court of Australia. Peterson sought compensation under the Safety, Rehabilitation and Compensation Act 1988 for an injury sustained during his employment with the Commonwealth. The dispute centred on whether Peterson had served the required notice of injury and claim for compensation within the statutory time limits and whether any defect in the notice or claim could be excused due to mistake or other reasonable cause.

The court was required to determine whether Peterson's notice of injury and claim for compensation were served within the prescribed time and whether any deficiencies in the notice or claim could be excused because they were occasioned by mistake or other reasonable cause. A critical issue was distinguishing between a mistake and ignorance, and whether ignorance of the law could be excused.

The court found that Peterson had not served the notice of injury within the statutory period, but the defect in the notice could be excused. The court held that the distinction between a mistake and ignorance is important, as ignorance of the law is not ordinarily excusable, but a mistake about a fact may be. In this case, Peterson's failure to serve the notice within the time limit was due to a mistake, as he believed he had complied with the statutory requirements. The court found that the mistake was reasonable and that Peterson had acted diligently in attempting to serve the notice within the time limit. Therefore, the court held that the defect in the notice could be excused, and Peterson's claim for compensation was valid.

The court ordered that Peterson's claim for compensation be assessed and that Comcare pay Peterson the appropriate compensation for his injury.

Orders