Tanase v ACME Engineering (Tas) Pty Ltd - [2006] TASSC 100

[2006] TASSC 100

CITATION: Tanase v ACME Engineering (Tas) Pty Ltd [2006] TASSC 100

PARTIES: TANASE, Valentin
v

ACME ENGINEERING (TAS) PTY LTD
GIO GENERAL

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 59/2006
DELIVERED ON:  24 November 2006
DELIVERED AT:  Hobart
HEARING DATE:  19 October 2006
JUDGMENT OF:  Underwood CJ

CATCHWORDS:

Workers Compensation – Proceedings to obtain compensation – Preliminary requirements - Claims for compensation – Failure to make claim within time – Generally – Mistake or ignorance – Mixed question of fact and law.

Workers Rehabilitation and Compensation Act1988 (Tas), ss32 and 38.
Vetter v Lake Macquarie City Council (2001) 178 ALR; Hope v Bathurst City Council (1980) 144 CLR 1, applied.
TGIO v McLeod B37/1991; FAI General Insurance v Morrison (1993) 2 Tas R 9; Cascade Brewery Pty Ltd v Chambers 76/1992, followed.
Aust Dig Workers Compensation [301]

Workers Compensation – Proceedings to obtain compensation – Preliminary requirements - Claims for compensation – Failure to make claim within time – Generally – Other reasonable cause – Ignorance of the law.

Workers Rehabilitation and Compensation Act1988 (Tas), ss32 and 38.
Murray v Baxter (1914) 18 CLR 622, applied.
Roles v Pascall [1911] 1 KB 982; Black v City of South Melbourne [1963] VR 34; McDonald v Co-Operative Motors Ltd 57/1971, followed.
Leech v Melbourne and Metropolitan Tramways Board [1958] VR 398; Akermanis v Melbourne and Metropolitan Tramways Board [1959] VR 114; McKenzie v City of Caufield [1963] VR 436, discussed.
Aust Dig Workers Compensation [302]

REPRESENTATION:

Counsel:
             Appellant:  B Hilliard
             Respondents:  M K Wilkins
Solicitors:
             Appellant:  Hilliard and Associates
             Respondents:  Page Seager

Judgment Number: [2006] TASSC 100
Number of paragraphs: 39

Serial No 100/2006
File No LCA 59/2006

VALENTIN TANASE v ACME ENGINEERING (TAS) PTY LTD
and GIO GENERAL

REASONS FOR JUDGMENT UNDERWOOD CJ

24 November 2006

Introduction

This appeal is brought from determinations of the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") that:

1The worker did not make a claim for compensation within six months from the occurrence of the injury.
2The Workers Rehabilitation and Compensation Act 1988 ("the Act"), s38, does not operate to validate the worker's claim.
3The reference of a claim for compensation be dismissed.

The Tribunal agreed to determine as preliminary issues to hearing the appellant's claim for compensation, whether the appellant had complied with the Act, s32(1), by giving notice of injury and making a claim within the time constraints imposed by the subsection.

The Tribunal found that the appellant had given the first respondent timely notice of his injury. It was common ground that he did not make a claim for compensation within six months after the date of the occurrence of his injury as required by the Act, s32(1)(b). To relieve him of this obligation, the appellant sought to rely on the Act, s38, which provides:

"38 ¾ Effect of failure to make claim
(1) The failure to make a claim for compensation within the period prescribed by section 32(1)(b)…

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.

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Details

Case: [2006] TASSC 100
Decision Date: 24 November 2006

CaseChat Overview and Summary

The case of Tanase v ACME Engineering (Tas) Pty Ltd was heard in the Supreme Court of Tasmania. The plaintiff, Mr. Tanase, sought compensation for injuries sustained during his employment with the defendant, ACME Engineering (Tas) Pty Ltd. The primary dispute centred on whether Mr. Tanase complied with the statutory time limits for lodging his claim for compensation, and if his failure to do so was due to a mistake or ignorance of the law, which might entitle him to an extension. The defendant argued that the plaintiff's claim was time-barred and that no mistake or ignorance could excuse the delay.

The court was tasked with determining the preliminary requirements for Mr. Tanase to pursue compensation and whether the statutory time limits for lodging a claim could be extended due to his alleged mistake or ignorance. It was necessary to establish whether Mr. Tanase's failure to meet the statutory deadline was attributable to a genuine mistake or ignorance of the law, and if so, whether this warranted an extension of time. The court also had to consider the mixed question of fact and law inherent in assessing the credibility of Mr. Tanase's claim that he was unaware of the time limits or mistakenly believed he had complied with them.

The court found that Mr. Tanase did not make his claim within the statutory period, and while he alleged that his failure was due to a mistake or ignorance of the law, the court was not persuaded that this was the case. The court held that the plaintiff's evidence did not support a genuine belief that he had complied with the statutory requirements, nor did it demonstrate a reasonable mistake or ignorance. Consequently, the court dismissed the plaintiff's application for an extension of time to lodge his claim for compensation. The court's decision was grounded in the specific facts of the case, where the plaintiff's assertions of mistake or ignorance were not substantiated.

The court ordered that the plaintiff's claim for compensation be dismissed due to the failure to lodge the claim within the prescribed statutory period. The court found no grounds to extend the time for lodging the claim based on the plaintiff's alleged mistake or ignorance, thereby upholding the statutory requirement as a strict prerequisite for pursuing compensation.

Orders