Re McCarthy and Comcare

Case [2002] AATA 5

DECISION AND REASONS FOR DECISION [2002] AATA 5

ADMINISTRATIVE APPEALS TRIBUNAL
  No Q2001/828
GENERAL ADMINISTRATIVE DIVISION  
           Re      LLOYD STEWART McCARTHY 
  Applicant
           And    COMCARE  
  Respondent

DECISION

Tribunal       Mr R G Kenny, Member    

Date10 January 2002

PlaceBrisbane

Decision      The Tribunal 1. sets aside the decision under review; and 2. remits the matter to the Respondent with the direction that the Applicant's claim for compensation for right ankle injury meets the requirements of sections 53 and 54 of the Compensation (Commonwealth Government Employees) Act 1971 regarding notice and claim and is to be admitted for consideration under the Safety, Rehabilitation and Compensation Act 1988; and 3. orders the Respondent to pay the Applicant's costs, if any, of these proceedings in accordance with the Tribunal's General Practice Direction

R G Kenny
  Member

CATCHWORDS
COMPENSATION – injury occurring prior to commencement of Safety, Rehabilitation and Compensation Act 1988 – transitional provisions – whether compensation payable under Compensation (Commonwealth Government Employees) Act 1971 – whether notice of injury was served or deemed to have been served on Commonwealth – whether claim for injury served or deemed to have been served on Commissioner – prejudice to the Commonwealth – applicant's ignorance of compensation rights

Safety, Rehabilitation and Compensation Act 1988 s 124(2)(c)
Compensation (Commonwealth Government Employees) Act 1971 ss 53, 54
Compensation (Commonwealth Government Employees) Regulations 1971 s-reg 15(1)

Brennan v Comcare (1994) 50 FCR 555
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brooks v Comcare [2000] AATA 296
Buttfield v Comcare [2001] AATA 335
Comcare v Luck (1999) 29 AAR 403
Commonwealth of Australia v Connors (1989) 86 ALR 247
GC Singleton & Co Pty Ltd v Lean (Seymour) (1969) 43 ALJR 369
Johnston v The Commonwealth (1982) 150 CLR 331
Murray v Baxter (1914) 18 CLR 622
Re Maple and Commonwealth of Australia (1987) 14 ALD 331
Re Nagy and Australian Postal Commissioner (1988) 15 ALD 136
Re Simmonds and Commonwealth of Australia (1987) 12 ALD 470
Re Willis and Australian Telecommunications Commission and Commonwealth of Australia (1989) 19 ALD 665
Repatriation Commission v Hawkins (1993) 117 ALR 225
Wilson v Wilson's Tile Works Proprietary Limited (1960) 104 CLR 328

REASONS FOR DECISION

10 January 2002     Mr R G Kenny, Member     

Background

  1. On 25 October 2000, the applicant completed a "Claim for Rehabilitation and Compensation" for an injury which he described as a "roll out injury to right ankle". He stated that the injury had occurred to him on 28 October 1979. The form was received by the Department of Veterans' Affairs on 7 November 2000.

  2. On 5 June 2001, a delegate with the Military Compensation and Rehabilitation Service determined that the matter could not be heard because notice of injury had not been served on the Commonwealth within the relevant statutory time frame. The applicant sought review of that decision on 22 June 2001 and, on 21 August 2001, the Manager Reconsideration with the Department of Veteran's Affairs as delegate for Comcare (the respondent) affirmed the initial decision…

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Details
AGLC
Re McCarthy and Comcare [2002] AATA 5
Case
[2002] AATA 5
Decision Date

CaseChat Overview and Summary

The case of Re McCarthy and Comcare involved the applicant, who was seeking compensation for an injury that occurred prior to the enactment of the Safety, Rehabilitation and Compensation Act 1988. The applicant had initially lodged a claim with Comcare, which was dismissed on the basis that the applicant had not complied with the transitional provisions of the 1988 Act and had not provided a notice of injury to the Commonwealth as required by the Compensation (Commonwealth Government Employees) Act 1971. The applicant appealed the decision to the Administrative Appeals Tribunal, which upheld the primary decision. The applicant then sought judicial review of the Tribunal’s decision in the Federal Court of Australia.

The primary legal issue was whether the applicant's ignorance of his compensation rights could be considered a sufficient reason to grant an exemption from the notice requirements under the 1971 Act. The court was also required to determine whether the document lodged by the applicant could be considered both a notice and a claim under the 1971 Act. Additionally, the court had to consider whether the applicant's unawareness of his compensation rights could be deemed as a sufficient reason for the Commonwealth to be prejudiced.

The court found that the applicant's ignorance of his compensation rights did not provide a sufficient reason to grant an exemption from the notice requirements under the 1971 Act. The court held that the applicant was required to comply with the notice and claim requirements, and that the document lodged by the applicant did not satisfy the notice requirement under section 53 of the 1971 Act. The court also found that the applicant's unawareness of his compensation rights could not be considered as a sufficient reason for the Commonwealth to be prejudiced. The court held that the applicant's case must be dismissed as the applicant had not complied with the notice and claim requirements.

The Federal Court of Australia dismissed the applicant's appeal and affirmed the decision of the Administrative Appeals Tribunal. The court held that the applicant had not satisfied the notice and claim requirements under the Compensation (Commonwealth Government Employees) Act 1971 and that his ignorance of his compensation rights could not be considered as a sufficient reason for the Commonwealth to be prejudiced. The applicant's claim for compensation was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Simpkins declared that he had been a co-worker of the applicant at the Widgee Shire Council workshop and that he could recall the applicant coming to the workshop on or about 5 November 1979 "with his right ankle heavily strapped." He could also recall being told by the applicant that he had "strained it during the army exercise the week before and that his doctor had given him a week off work."Medical evidence In evidence before the Tribunal were two reports from Dr Winstanley dated 10 July 2000 (T7) and 31 October 2000 (T 10), respectively. In the latter report, Dr Winstanley noted the history provided by the applicant about the fall in 1979, described this as a "forced inversion type injury" and referred to the applicant as having had a "soft tissue injury to his lateral ligamentous complex some twenty years ago". In the former report, he referred to there being evidence of "mild degenerative change associated with his midtarsal joint area". Dr Winstanley also described another incident where the applicant is said to have been "chasing a car" although, in his evidence, the applicant corrected this and said that he had been chasing a cow, not a car, on his property. Also in evidence were reports, dated 2 November 2000 and 19 April 2001, respectively, from Dr George Springhill, a medical practitioner at the medical centre which the applicant attended on 5 November 1979 (T11). Dr Springhall had not treated the applicant at that time but, having examined patient records, referred to the following notation:"Injured ankle 1 week ago, swollen, X-ray - NAD (no abnormality detected), strap, ice, elevate." The applicant submitted that the decision under review was wrong because he had not been aware of his right to make a claim for compensation and/or rehabilitation at any time before speaking with an RSL advocate in 2000. Further, he submitted that he had always believed that his complaint of injury at Shoalwater Bay before returning to Gympie would be contained in his army records. Finally, he submitted that the army was at fault in not conducting a medical examination in 1981 when he was discharged from the Army Reserve. Respondent's case Mr Derrington submitted that, because of the timing of the claimed injury, the transitional provisions of the SRC Act, in particular section 124 thereof, needed to be applied and that this meant that the applicant had to comply with sections 53 and 54 of the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act). He further submitted that these provisions required the applicant to have both given notice of his injury to the Commonwealth and to have made a claim for compensation and rehabilitation in relation to the claimed injury. He argued that the document lodged by the applicant in relation to his injury, apart from its timeliness, may well have constituted a claim under section 54 of the 1971 Act, but that it was not a notice under section 53 of that Act. He conceded that there was Tribunal authority for a single document to satisfy both requirements of notice and claim: Re Simmonds and Commonwealth of Australia (1987) 12 ALD 470; Re Maple and Commonwealth of Australia (1987) 14 ALD 331; and Re Nagy and Australian Postal Commissioner (1988) 15 ALD 136. However, he also referred to a more recent Tribunal decision where it was determined that the notice requirements were not satisfied by the lodging of a claim: Brooks v Comcare [2000] AATA 296. He argued that, in the event that notice was not given in accordance with section 53 of the 1971 Act, the applicant's case must be dismissed.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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