Slender and Comcare - [2003] AATA 325

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 325
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/784

GENERAL ADMINISTRATIVE DIVISION )

Re JOHN GRAHAM SLENDER

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Ms G Ettinger - Senior Member
Date8 April 2003
PlaceSydney

Decision

The Administrative Appeals Tribunal affirms the decision of the Military Compensation and Rehabilitation Service of the Department of Veterans’ Affairs dated 6 February 2001 (T8) as affirmed by the Manager Reconsideration of that Service dated 5 July 2001 (T13), who held that pursuant to section 16 of the Commonwealth Employees’ Compensation Act 1930 – 1956, compensation was not payable to Mr John Graham Slender because a notice of the accident was not provided within six months of the accident, and the failure to make the claim could not be held to have been occasioned by mistake, absence from Australia or other reasonable cause. Further the Commonwealth was prejudiced.

[Sgd] Ms G Ettinger
Senior Member

CATCHWORDS
Compensation - veteran - claim under 1930 Act - 40 years later – whether mistake – whether prejudice to the Commonwealth absence from Australia or other reasonable cause - decision affirmed
LEGISLATION
Commonwealth Employees’ Compensation Act 1930 - 1956 - ss 12(1), 16(1)
Safety, Rehabilitation and Compensation Act 1988 - ss 123A, 124
Veterans’ Entitlements Act 1986 - s 119(1)
CASE LAW
Re Willis v Australian Telecommunications Commission (1989) 19 ALD 665
Commonwealth of Australia v Connors (1989) 86 ALR 247
Telstra Corporation Limited v Roycroft (1997) 77 FCR 358
Secretary of the Department of Veterans’ Affairs v Studdert [2001] FCA 1642
Re Loft v Comcare (1996) 52 ALD 606
REASONS FOR DECISION

8 April 2003 Ms G Ettinger – Senior Member

1. The decision under review before the Administrative Appeals Tribunal (“the Tribunal”), was the decision of the Military Compensation and Rehabilitation Service of the Department of Veterans’ Affairs dated 6 February 2001 (T8) as affirmed by the Manager Reconsideration of that Service dated 5 July 2001 (T13), who referred to section 16 of the Commonwealth Employees’ Compensation Act 1930 – 1956, (“the 1930 Act”), and stated as follows in relation to a claim by Mr John Graham Slender, the Applicant in these proceedings:
“Pursuant to section 16 of the 1930 Act, compensation was not payable unless a notice of the accident was provided within 6 months of the accident, unless the failure to make the claim was occasioned by mistake, absence from Australia or other reasonable cause and the Commonwealth was not prejudiced.
...
I have been provided with no evidence as to whether the failure to report the accident was occasioned by mistake, absence from Australia or other reasonable cause and therefore I cannot make any finding in that regard. I note that you were advised that by the time you completed your National Service you were already suffering slight hearing loss and yet no claim was made at that time.
Therefore in summary I am not satisfied that there is sufficient evidence to overcome the…

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 Slender and Comcare

Details

AGLC: Slender and Comcare [2003] AATA 325
Case: [2003] AATA 325
Decision Date: 8 April 2003

CaseChat Overview and Summary

The parties involved in the case of Slender and Comcare were Mr John Graham Slender, the applicant, and Comcare, the respondent. The nature of the dispute was a claim for compensation under the Commonwealth Employees’ Compensation Act 1930 – 1956, filed by Mr Slender 40 years after an accident. The case was heard in the Administrative Appeals Tribunal. The central legal issues that the court needed to decide were whether the delay in filing the claim was due to a mistake, absence from Australia, or other reasonable cause, and whether the Commonwealth had been prejudiced by this delay.

The court considered the provisions of section 16 of the Act, which stipulates that compensation is not payable if notice of the accident was not provided within six months. The Tribunal examined the evidence provided by Mr Slender and the circumstances surrounding the delay in filing the claim. The court found that Mr Slender had not demonstrated that his delay was due to a mistake, absence from Australia, or any other reasonable cause. Moreover, the Tribunal held that the Commonwealth had been prejudiced by the delay, as it could not properly investigate the claim or determine the merits due to the passage of time.

Based on these findings, the Administrative Appeals Tribunal affirmed the decision of the Military Compensation and Rehabilitation Service and the Manager Reconsideration, which had both previously determined that compensation was not payable. The Tribunal concluded that the delay in filing the claim was not justified under the Act, and the failure to make the claim could not be attributed to any of the specified causes. Therefore, the decision to deny the compensation claim was upheld. The court's reasoning was grounded in the statutory requirements and the principle that the Commonwealth must not be prejudiced by undue delay in making a claim.

Orders

Orders of the court

The Administrative Appeals Tribunal affirms the decision of the Military Compensation and Rehabilitation Service of the Department of Veterans’ Affairs dated 6 February 2001 (T8) as affirmed by the Manager Reconsideration of that Service dated 5 July 2001 (T13), who held that pursuant to section 16 of the Commonwealth Employees’ Compensation Act 1930 – 1956, compensation was not payable to Mr John Graham Slender because a notice of the accident was not provided within six months of the accident, and the failure to make the claim could not be held to have been occasioned by mistake, absence from Australia or other reasonable cause. Further the Commonwealth was prejudiced.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN GRAHAM SLENDER