Sullivan and Military Rehabilitation and Compensation Commission

[2007] AATA 1337

Administrative Appeals Tribunal

DIRECTION AND REASONS [2007] AATA 1337

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0699

VETERANS’ APPEALS DIVISION		)
Re		BENJAMIN SULLIVAN

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DIRECTION

Tribunal Deputy President P E Hack SC

Date16 May 2007

PlaceBrisbane

The Tribunal DIRECTS that the application for an extension of time is refused.

..............................................

Deputy President

REASONS

16 May 2007 Deputy President P E Hack SC    

1.Mr Benjamin Sullivan has made application for an extension of time for the making by him of an application to the Tribunal for the review of a decision of the respondent, the Military Rehabilitation and Compensation Commission made on 8 March 2006.

2.That decision affirmed an earlier determination made on 6 September 2002 that Mr Sullivan had no entitlement for compensation for a claimed psychiatric condition. Mr Sullivan was notified of the decision by letter of 8 March 2006. That letter informed Mr Sullivan of his entitlement to seek a review in this Tribunal of the decision and gave him information about the Tribunal.

3.By a combination of s 29(2) of the Administrative Appeals Tribunal Act 1975 and s 65 of the Safety, Rehabilitation and Compensation Act 1988 the time within which an application for review ought to have been sought was the 60^th day after Mr Sullivan was given a document setting out the terms of the decision i.e. the letter of 8 March 2006. Allowing for the usual course of the post it seems safe to say that the ordinary time expired around 10 May 2006.

4.Mr Sullivan commenced these proceedings on 9 March 2007, that is, some 10 months out of time.

5.The principles that govern applications of this nature are well-known. Mr Dube, who appeared for the Commission has made reference to the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Comcare v A’Hearn (1993) 45 FCR 441 and Zizza v Commissioner of Taxation (1999) 55 ALD 451. To that list I would add a reference to the decision of Hill J in Brown v Commissioner of Taxation 99 ATC 4516 where at p. 4525 his Honour said:

“An extension should be granted where the justice of the case requires it.”

6.The Commission submitted that the relevant factors for consideration were the length of the delay, Mr Sullivan’s awareness of his rights and whether there has been an acceptable explanation of the delay, the merits (or otherwise) of his case and prejudice to the Commission. Mr Clutterbuck, counsel for Mr Sullivan, did not take issue with this list or suggest additions to it.

7.The period of delay of about 10 months has already been noted.

8.It must be accepted that Mr Sullivan was aware of his rights to seek a review of the adverse decision. He was told so in the letter in plain terms.

9.Mr Sullivan’s explanation for not commencing proceedings in time is of some importance. Between 2000 and 2002 and, I infer, in connection with the presentation of the claim to the Commission, Mr Sullivan was represented by the solicitors who represent him on this application. He terminated their retainer at some stage in 2002 and was then represented by a veterans’ organisation and by another solicitor but was not satisfied with the service provided by either. When he received the 8 March 2006 letter he was not represented by anybody.

10.He says, and his evidence on the point was not challenged, that at the time he received that letter, he relied heavily on the Commission’s predecessor, the Military Compensation and Rehabilitation Service. His statement Exhibit 1 continues:

“I was not aware that an Application for Review was not automatically submitted to the Administrative Appeals Tribunal on my behalf by MCRS.”

11.The form of words used is curious. He does not say that he had thought that such an application would be submitted. In some circumstances such a belief might provide an explanation for some period of delay but I cannot regard Mr Sullivan’s absence of awareness of something that did not, in fact, occur, as providing any explanation for his failure to commence proceedings. But that is, of course, only one factor in a collection of factors to be taken into account.

12.Next it is said by the Commission that the case for Mr Sullivan is without factual merit. His case, put shortly, is that he suffers from post traumatic stress disorder, that there is a link between that condition and his military service and that accordingly the Commission is obliged to compensate him. He intends to rely upon a report of a psychiatrist that points to that link.

13.The Commission, for its part, relies upon the matters set out in the reasons for decision. The material available to the Commission, and on which its decision was based, indicates that there will be a substantial contest about the factual matters relied upon by the applicant’s psychiatrist as founding both the diagnosis and the link. It is said that there is an absence of evidence that supports the account given by Mr Sullivan in contemporaneous service and medical records.

14.It is neither permissible nor possible for me to determine disputed questions of fact nor am I able to undertake any detailed examination of the merits of the proposed application. It is however permissible for me to have regard to the apparent strength or weakness of a case sought to be brought in considering the application to extend time: see Commissioner of Taxation v Brown 99 ATC 4852 at p. 4860 per Drummond, Sackville & Hely JJ.

15.There are, in my view, obvious difficulties for the applicant and I think his case must be regarded as being unpromising. 

16.In terms of prejudice the Commission does not point to any particular or explicit examples of prejudice rather it relies upon the prejudice referred to by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at p. 551 that is, the kind of prejudice that exists through the passage of time.

17.I accept that in this case the evidence establishes that the first incident relied upon by Mr Sullivan as creating his condition was the subject of a board of enquiry conducted by the Army at the time. The other incident involving the collision of two Black Hawk Helicopters was the subject also of a board of enquiry but it is not clear whether the events following that collision in which Mr Sullivan says he took part were the subject of an enquiry but in any event the events generally are now between 10 and 12 years in vintage and will be a little more in vintage if this matter were to proceed to hearing. There is thus an additional but not significant addition to the delay and ultimately I think that the delay does not make any material contribution to the present case. That is to say had the proceedings been brought within time they will still have been more than 10 years old at the time of the hearing.

18.The question that I have to decide is whether this is a proper case to extend time. It seems to me, that the justice of the case requires me to refuse the application. I take the view that the delay of the period of some 10 months that is not explained in any way and seems not otherwise to be explicable is a significant factor as is the fact that I regard the applicant’s case as unpromising. I think in the circumstances a proper exercise of the discretion requires the application be refused. Accordingly I will refuse the application for extension of time and dismiss the application.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         .....................................................................................
  Eleanor O’Gorman, Associate

Date of Hearing  16 May 2007
Date of Decision  16 May 2007
Counsel for the Applicant         Mr R Clutterbuck  
Solicitor for the Applicant          D’Arcys Solicitors   
Solicitor for the Respondent     Sparke Helmore