Telstra Corporation v Roycroft
[1997] FCA 774
•15 August 1997
FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE LAW - APPEAL from Administrative Appeals Tribunal - Employee failed to serve claim for compensation within time - Tribunal deemed claim served in time - Effect of Tribunal’s failure to identify the period within which a claim for compensation had to be served - Failure to identify evidence to support the finding on a material question of fact, namely, the date of service of claim - Whether employee failed to serve claim due to mistake - Distinction between mistake and ignorance - Whether mistake must relate to time in which to serve the claim - Whether mistake occasioned failure to serve claim - Whether failure to refer to evidence on which findings relating to mistake were made - Whether knowledge of connection with employment was necessary
WORDS AND PHRASES - Mistake, Ignorance
Administrative Appeals Tribunal Act 1973 (Cth) ss 43(2B), 44
Compensation (Commonwealth Government Employees) Act 1971 (Cth) ss 27, 54(1), 54(2), 54(6)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 124(1A), 124(10)
Commonwealth Employees Compensation Act 1930 (Cth)
Sullivan v Department of Transport (1978) 20 ALR 323
Brackenreg v Comcare Australia (1995) 56 FCR 335
Murray v Baxter (1914) 18 CLR 622
Roles v Pascall & Sons [1911] 1 KB 982
Commonwealth of Australia v Connors (1989) 86 ALR 247
Stevenson v Metropolitan Meat Industry Commission (1936) 37 SR (NSW) 109
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Black v City of South Melbourne [1963] VR 34
McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609
TELSTRA CORPORATION v ROYCROFT
VG 631 of 1996
BEFORE: NORTH J
PLACE: MELBOURNE
DATE: 15 AUGUST 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG 631 of 1996 ) GENERAL DIVISION )
ON APPEAL from the General Administrative Division of the
Administrative Appeals Tribunal constituted by
Mr J R Handley, Senior Member
BETWEEN: TELSTRA CORPORATION
ApplicantAND: ROBERT THOMAS ROYCROFT
Respondent
JUDGE(S): NORTH J PLACE: MELBOURNE DATED: 15 AUGUST 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The matter is adjourned to a date to be fixed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG 631 of 1996 ) GENERAL DIVISION )
ON APPEAL from the General Administrative Division of the
Administrative Appeals Tribunal constituted by
Mr J R Handley, Senior Member
BETWEEN: TELSTRA CORPORATION
ApplicantAND: ROBERT THOMAS ROYCROFT
Respondent
JUDGE(S): NORTH J PLACE: MELBOURNE DATED: 15 AUGUST 1997
REASONS FOR JUDGMENT
This is an appeal by Telstra Corporation (Telstra) under s 44 of the Administrative Appeals Tribunal Act 1973 (Cth) against the decision of the Administrative Appeals Tribunal (the Tribunal) made on 13 September 1996. The Tribunal decided that the claim for compensation made by Mr Robert Roycroft, the respondent, be deemed to have been served in accordance with s 54(1) of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act) because the failure of Mr Roycroft to serve a claim in time was due to a mistake as provided in s 54(6)(c). The following provisions are relevant to the appeal:
Safety, Rehabilitation and Compensation Act 1988 (Cth)
“124 (1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.”
“124 (10) Where:
......(c)a claim for compensation by a person under the 1971 Act, in respect of an injury suffered after the commencement of the 1971 Act but before 1 July 1986, was not admissible because of section 54 of the 1971 Act, as that section was in force before 1 July 1986;
that person is not entitled to compensation under this Act in respect of that injury.”
The 1971 Act“54 (1) Compensation in relation to an employee is not payable under this Act to a person unless a claim in writing for the compensation was served, as prescribed, on the Commissioner by or on behalf of the person within the prescribed period.
(2) If the claimant is the employee, the prescribed period for the purposes of the last preceding sub-section is -
(a)in the case of a claim in relation to an injury to the claimant -
(i) the period of six months commencing on the day of the injury; or
(ii) if the claimant was not, immediately after the injury, aware that he had sustained an injury - the period of six months commencing on the day on which he became so aware;
(b)in the case of a claim in relation to a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered, by the claimant - the period of six months commencing on the day on which the claimant became aware of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease; ....
......
(6)Where -
(a)a claim purporting to be a claim referred to in sub-section (1) has been served on the Commissioner;
(b)the claim, as regards the time or manner of service, failed to comply with the requirements of that sub-section; and
(c)the Commonwealth would not, by reason of the failure, be prejudiced if the claim were treated as a sufficient claim, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause,
the claim shall be deemed to have been served in accordance with that sub-section.”
Mr Roycroft started work with Telstra in 1966 as a clerk in the personnel department. After moving to a new job in late 1969, he found work increasingly stressful. In January 1971, he requested leave without pay due to his stress at work, and Telstra granted the request for the period 24 May 1971 to 28 January 1972. A few days before he left on that leave, he developed a painful face rash. As a result he could not attend work. On 19 May 1971, Dr Walker provided a medical certificate as follows:
“This is to certify that Mr Roycroft is in my opinion suffering from Anxiety Neurosis and needs complete rest from work.”
As a result, he saw the Commonwealth Medical Officer, who reported on 24 May 1971:
“Mr Roycroft was examined on 21 May, 1971. This young man has a florid anxiety neurosis and is not fit for duty. I understand he is due for extended leave and I recommend that he be permitted to proceed on this leave as arranged. I make this recommendation on two grounds, namely he could not give of his best in his present state of health and secondly I believe that a break from duty will benefit him.”
Mr Roycroft took the leave and travelled overseas. He did not return until 24 January 1972. On 26 April 1979, Mr Roycroft was retired from Telstra on the grounds of obsessive compulsive neurosis and alcoholism. The Tribunal found that Mr Roycroft did not make a claim for compensation until 11 August 1989.
THE PROCEEDINGS BEFORE THE TRIBUNAL
Mr Roycroft represented himself before the Tribunal. He contended that he became aware of his medical problems on 19 May 1971 and his failure to make a claim within six months thereafter was for several possible reasons. One was that he was overseas. He sought to rely on his “absence from Australia” under s 54(6)(c) of the 1971 Act as one explanation for his failure to lodge a claim for compensation and, hence, the ground for the Tribunal to deem service of the claim to have been in accordance with s 54(1) of the 1971 Act. Telstra did not seem to contest the proposition in respect of this argument that Mr Roycroft became aware of his anxiety neurosis at least by 19 May 1971. Telstra’s written submission to the Tribunal stated:
“.... it is [Telstra’s] submission that [Mr Roycroft] was aware of his condition of anxiety neurosis from at least 19 May 1971 when he submitted a medical certificate from Dr Charles Walker certifying him as suffering from that condition and after which, he was referred to the Commonwealth Medical Officer who certified him to be suffering from a florid anxiety neurosis and unfit for duty.”
The written submission argued:
“[Mr Roycroft’s] assertion that he was overseas and hence unable to notify within the six month period required by the Act does not account of the 18 year period which elapsed between when [Mr Roycroft] stated he first became aware of his anxiety condition on 19 May 1971 and when he actually notified of his intention to make a claim on 11 August 1989.”
As to the time when Mr Roycroft became aware of his alcoholism, Telstra made the following written submission to the Tribunal:
It is maintained by [Telstra] that [Mr Roycroft] was aware of his alcoholism at least from his retirement in 1979 as he told Dr Sweeney that he had been retired from work due to alcoholism and this is referred to in Dr Sweeney’s report contained at T37. In his report dated 17 July 1990 Dr Chong gave a history of [Mr Roycroft] having problems with alcohol since 1968. He had drink driving convictions, lost his driving licence on three occasions and three assault charges. [Mr Roycroft] had undergone treatment in Pleasant View Rehabilitation Hospital and his drinking problem had worsened over the years. [Mr Roycroft] was first seen by Dr Chong on 14 March 1979 in respect of his alcohol related problems. It is clear that [Mr Roycroft] would have been aware of his alcoholism from at the very latest March 1979 and possibly as early as 1968 when he was first charged with an alcohol related offence in the Melbourne Magistrates’ Court.
Accordingly it is submitted on behalf of [Telstra] that [Mr Roycroft] became aware of both his anxiety and alcoholic conditions at the latest in 1979 and failed to provide notice in writing as soon as practicable after he became aware of the contraction or aggravation of these conditions and also failed to serve a claim within six months of his becoming aware of the contraction or aggravation of the disease.”
The Tribunal rejected Mr Roycroft’s argument, as follows:
“18. [Mr Roycroft] submitted that for a period of time in the 1970’s whilst he remained an employee he was absent from Australia. In my opinion the absence from Australia as alleged may be more explained by the apparent deranged state of the applicant’s mind rather than being acceptable as an explanation for his failure to claim. The applicant did return to Australia and was apparently a resident (so far as may be gleaned from his submissions and from the T-documents) for many years prior to him ceasing his employment. As to when the period of six months for the making of a claim commenced it is difficult to presently determine, in the absence of any evidence as to when the injury occurred or when he became aware of the disease, nonetheless I am not satisfied on the information presently available that the periods of time for which the applicant was absent from Australia explain or justify his failure to claim.” (emphasis added)
In an alternative argument, Mr Roycroft contended before the Tribunal that he did not serve his claim within the required six months “from a mistake” within the meaning of s 54(6)(c) of the 1971 Act. His written submission, as recorded in the Tribunal’s decision, stated:
“At the Directions Hearing on 24 May, 96 I explained that I was under the mistaken belief that you had to have an accident at work or while travelling to or from work which created a potential claim for compensation. I was aware of the requirement to fill out a form if you sustained an injury at work and to lodge a claim. As an 18 year old Clerk in the Staff Movements Section, Personnel Branch I recall being told about recreation leave, furlough, sick leave etc. At the same time I was told about the need to fill out a form etc if you had an accident at work and you sustained an injury. I also recall a training and Welfare Officer, a Mr Hardy, who had a neck brace and would arrive in the office each fortnight to collect his pay. We were told he was on compensation because he had hurt his spine or neck while driving a departmental vehicle while working. My duties in the Personnel Department had nothing to do with the compensation section until a few months prior to my retirement (invalidity). Considering all the facts I would state that a more accurate explanation is that I was mistaken rather than ignorant of my right to claim in 1971.”
In response, Telstra’s written submission argued:
“[Telstra] refers to and relies upon the decision of Commonwealth -v- Connors a decision of the Full Federal Court at 86 ALR 247 in which it was held that the word ‘mistake’ includes a mistake of law as well as of fact, but ignorance of the law in the sense of a failure to advert to the existence of the right to a claim, does not constitute, by itself, a mistake and cannot, by itself constitute ‘other reasonable cause’. It is submitted by [Telstra] that this is in fact the exact circumstances upon which [Mr Roycroft] purports to relate his failure to make a claim. [Mr Roycroft’s] assertion that he was mistaken as to the nature of injuries which were required to be reported, in our submission illustrates [Mr Roycroft] failure to advert to the existence of the right to make a claim and this of itself in accordance with Connor’s case, does not constitute a mistake and cannot constitute any other reasonable cause.”
The Tribunal referred to a number of authorities and concluded that Mr Roycroft failed to serve a claim within the relevant six months by reason of a mistake. The text of the conclusion is set out later in these reasons.
I will now deal with the arguments raised on the appeal.
FAILURE TO IDENTIFY THE PERIOD WITHIN WHICH A CLAIM FOR COMPENSATION HAD TO BE SERVED
Mr Croyle, who appeared as counsel for Telstra, contended that the Tribunal was bound to make a finding which identified the six-month period within which the claim had to be served under s 54(2) of the 1971 Act. Otherwise, it could not make a finding that the failure to serve a claim was the result of a relevant mistake. He contended that the Tribunal failed to make a finding on this necessary matter and had thereby erred in law. It failed to address a matter which it had to address. Mr Croyle relied on Sullivan v Department of Transport (1978) 20 ALR 323, which was a case where the Administrative Appeals Tribunal made an error of law by failing to address a necessary part of the case before it. Mr Croyle submitted that the Tribunal expressly did not determine the date of the commencement of the period of six months during which the claim had to be served. It stated:
“As to when the period of six months for the making of a claim commenced it is difficult to presently determine, in the absence of any evidence as to when the injury occurred or when he became aware of the disease ....”
The Tribunal could not, therefore, determine whether the alleged mistake was operative during that period because it had not identified the time during which the mistake had to exist. I do not accept this argument. The full context of the passage relied on is set out earlier in these reasons. It referred to the fact that Telstra had submitted to the Tribunal that Mr Roycroft may have been aware of his medical problems from dates in 1968 to dates in 1979. The Tribunal referred to the difficulty of making a determination as to the commencement of the period of six months, but went on to explain that the difficulty was irrelevant. Even if the relevant six-month period was when Mr Roycroft was overseas, his absence was not the reason for the failure to serve a claim for compensation. This finding is consistent with the Tribunal’s later conclusion that the reason for Mr Roycroft’s failure to serve a claim within six months of discovering his condition was from a mistake. The Tribunal found that the mistake existed at least from when Mr Roycroft became aware of his medical condition until shortly before he served his claim. In the context of the proceeding, it is clear that the Tribunal was making a finding that whether the commencement of the period for making a claim was 1968 or 1979, or the dates between, Mr Roycroft laboured under the mistake at all times. It was therefore unnecessary for the Tribunal to make a specific finding as to the commencement of the period for serving a claim. No mistake of the type referred to in Sullivan has therefore been established on this aspect.
Mr Croyle contended that a further reason for the Tribunal to make a finding as to the date of injury was to determine whether the 1971 Act applied or whether its predecessor, the Commonwealth Employees Compensation Act 1930 (Cth) (the 1930 Act), applied. There was no issue before the Tribunal about which Act applied. Both parties argued the case on the basis that the 1971 Act applied. Mr Croyle submitted that it was important for the Tribunal to make an express finding because the calculation of the amount of compensation may depend on the identification of the relevant legislation. It was common ground that, if the Tribunal was correct in finding that the failure to serve a claim was the result of a mistake, there was no difference between the 1971 and the 1930 Act in the ability of the Tribunal to deem that service had been effected in accordance with the particular Act. The question of compensation was not being considered. In these circumstances, having regard to the limited matter which was before the Tribunal, the failure of the Tribunal to explore the possible application of the 1930 Act is not a matter which calls for a remedy.
THE DATE OF SERVICE OF THE CLAIM FOR COMPENSATION
The Tribunal found that the claim for compensation was served by Mr Roycroft on 11 August 1989. It did not refer to the evidence or other materials on which this finding was made. Mr Croyle argued that the failure amounted to an error of law. It was a failure to comply with s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth), which provides:
“Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.”
He relied in part on Brackenreg v Comcare Australia (1995) 56 FCR 335, in which Sheppard J said, at 349-50:
“In the present case the findings of fact upon which the Tribunal relied appear clearly. That is in accordance with the obligation cast on the Tribunal by s 43(2B) of the Act. But what it fails to do is to refer to the evidence upon which those findings were based. Although the obligations to state the findings of fact and the evidence upon which those findings were based are related to the obligation to give reasons, they are independent and separate obligations. Furthermore, there is a real purpose in requiring a tribunal to refer to the evidence upon which its findings of fact are based. This enables a court dealing with an appeal on a question of law from the Tribunal to determine, more confidently than might otherwise be the case, whether or not the findings of fact made by the Tribunal were based upon evidence before it and were thus findings which were open to it to make. If they were not, an error of law would be disclosed.”
Section 43(2B) of the Administrative Appeals Tribunal Act relates to findings on material questions of fact. The identification of the claim “purporting to be a claim” referred to in s 54(1) of the 1971 Act was a material question of fact. Only that claim could be deemed to have been served in accordance with s 54(1) of the Act. As part of his submission, Mr Roycroft indicated to the Tribunal that the claim was made on 28 October 1991. In its submission, Telstra referred to a notice of intention of Mr Roycroft to make a claim, dated 11 August 1989, and the claim itself, dated 27 October 1991, which was enclosed with a letter dated 28 October 1991. Thus, both parties appear to have submitted to the Tribunal that the claim was served on 28 October 1991. Without a reference to the evidence relied upon by the Tribunal for finding that the date of service of the claim was 11 August 1989, it is not possible to understand the basis of the Tribunal’s finding of the date of service of the claim.
Mr Croyle suggested that the failure to provide the basis of the finding of the date of service of the claim had significance for the determination of the central issue before the Tribunal, namely, the existence of a mistake within the relevant six-month period. The only relevant six-month period was the six-month period commencing when Mr Roycroft’s medical condition started or when he became aware of his medical conditions: Murray v Baxter (1914) 18 CLR 622. Telstra submitted to the Tribunal that the six-month period commenced at the latest in 1979 and Mr Roycroft suggested that the period commenced on 19 May 1971. On any view, the six-month period commenced well before 1989. Whether the claim was made in 1989 or 1991 cannot therefore affect the determination of the identification of the relevant six-month period.
Thus, while the Tribunal has failed to comply with the requirements of s 43(2B) of the Administrative Appeals Tribunal Act in failing to refer to the evidence upon which it based its finding that the claim was served on 11 August 1989, the failure has a very limited significance. The only significance is to identify the claim which is to be the subject of any deeming under s 54(6) of the 1971 Act. The error has the effect of vitiating the finding and, therefore, it is necessary to remit this very narrow matter to the Tribunal for further determination.
DID MR ROYCROFT FAIL TO SERVE A CLAIM “FROM A MISTAKE”?
The authorities establish the following propositions:
A person who is not aware of a right to claim compensation at all is not mistaken about the right, but ignorant of it: Roles v Pascall & Sons [1911] 1 KB 982.
A person who knows that he has a right to claim compensation for one sort of injury, but no idea whether or not he has a right to claim for another, is not mistaken as to his right to claim for the second type of injury, but is ignorant of it: Commonwealth of Australia v Connors (1989) 86 ALR 247.
A person who knows he has a right to claim compensation for one sort of injury, and wrongly believes that he has no right to claim for another type of injury, is mistaken as to the right to claim for the second type of injury: Stevenson v Metropolitan Meat Industry Commission (1936) 37 SR (NSW) 109.
It follows from these authorities that a person who knows he has a right to claim compensation for the particular injury and knows that the time for making the claim is limited, but wrongly believes he has more time to make a claim than the Act allows, is mistaken as to the time for making the claim.
Mr Croyle argued that the findings made by the Tribunal compelled it to conclude that this case fell within the second proposition. He relied on Connors. In that case, the worker gave evidence that he thought he was entitled to compensation for an injury like falling off a ladder but he had no idea that a heart attack might be treated in the same way. The Full Court held that this evidence only supported a conclusion that the worker did not know of his right to claim compensation in respect of a heart attack. This belief was ignorance of the law, and ignorance did not constitute a reasonable cause for failing to give notice of the claim for compensation within the time stipulated by the Act. Northrop and Ryan JJ approached the case as one in which the worker was unaware of his right to claim. They said, at 250:
“From the authorities it is clear that in this context the word ‘mistake’ includes mistake of law as well as of fact but that ignorance of the law in the sense of a failure to advert to the existence of the right to a claim, does not constitute, by itself, a mistake and cannot, by itself, constitute other ‘reasonable cause’. ....
In the present case, there are no findings of fact to justify a finding of mistake. The following passage appears in the reasons of the tribunal: ‘Questioned by counsel for the respondent the applicant said that he was aware that an employee was entitled to compensation for an injury like falling off a ladder, but he had no idea a heart attack might be treated in the same way.’
If that passage constitutes a finding of fact, it is not sufficient of itself to justify a finding of ‘mistake’. Further facts would require to be found and such a finding would need to be based on material properly before the tribunal. As was said in [Black v City of South Melbourne [1963] VR 34, at 37]: ‘.... mere ignorance of the law is not a mistake, .... there can be no such mistake unless there is an advertence to the subject matter as to which mistake is alleged.’”
and at 252:
“The findings of fact do no more than support a conclusion that he was ignorant, that is, that he did not know of his right to make a claim for compensation.”
Keely J dealt extensively with the requirement of mistake at 254-5:
“As the matter is to be reheard, it seems desirable to draw attention to the tribunal’s statement, in its reasons for decision that ‘it is not open to the [employee] on the evidence .... to argue that the lack of notice or failure to make a claim was due to mistake ....’. The tribunal did not set out any findings of fact in support of that conclusion but, in dealing with the issue of whether there had been ‘other reasonable cause’, referred to the employee’s ‘ignorance of any right to claim compensation following the heart attack’. It should be noted that, as is shown by the authorities cited later, it may be difficult for a tribunal to decide whether it should find that an employee has been ‘ignorant’ of his right to claim compensation (eg ignorant of the existence of the Act) or ‘mistaken’ as to his rights (eg by mistakenly thinking that his right to compensation depended upon the occurrence of an accident at work).
Some support for the view that the employee was ‘not ignorant but mistaken’ appears in the tribunal’s reference to the employee’s evidence ‘that he was aware that an employee was entitled to compensation for an injury like falling off a ladder, but he had no idea a heart attack might be treated in the same way’. On my reading of the tribunal’s reasons, it accepted that evidence as true. In recording the relevant ‘factors’ the tribunal referred to the employee’s ‘ignorance of any right to claim compensation’. In my opinion it is arguable that the evidence did not support a finding of ‘ignorance of any right to claim compensation ....’ and that, properly characterised, the evidence showed a mistake of law by him as to his rights under the 1930 Act. ....
......
.... It may be that, if the tribunal had had the benefit of submissions as to the authorities, the tribunal would have found on the evidence before it that the employee was ‘not ignorant but mistaken’ - to use the words of Davidson J in Stevenson v Metropolitan Meat Industry Commission (1937) 37 SR (NSW) 109. If the tribunal had not come so quickly to the conclusion that the employee was not under a mistake it might have decided to ask him further questions as to his state of mind at the material time, bearing in mind that the unrepresented employee’s evidence ‘in chief’ before the tribunal was all given in answer to questions by the learned deputy president. One question was: ‘So you remained in ignorance of your right to make a claim for compensation until 1985?’ That question was a leading question and appeared to suggest, wrongly, that the employee had already given evidence that he was ‘ignorant’ of his right to claim compensation. The employee’s answer might well have been different had the question been: ‘Did you think that an accident was essential before you could claim compensation?’ (cf the employee’s evidence, cited earlier, as to ‘an injury like falling off a ladder’).”
Ms Schoff, who appeared as counsel for Mr Roycroft, argued that the present case fell within the third proposition stated above, relying on Stevenson. In that case, a worker had been injured at work and suffered broken ribs in 1927 or 1928. He made a claim and received payment under the workers’ compensation legislation. He later went to work in a freezing works, where he contracted tuberculosis. About a year after diagnosis he received advice that he could make a claim for compensation. He gave evidence that he thought he was only entitled to claim if he was injured as a result of an accident, and could not claim for a sickness caused by work. Davidson J, with whom Maxwell J and Owen AJ agreed, held that the failure to give notice of his claim within time was occasioned by mistake and not ignorance. After reviewing a number of authorities, Davidson J said, at 118-9:
“The effect of all these authorities, I consider, is that when an applicant knows the law to the degree that it provides that, in the case of injury in his employment, he is entitled in some circumstances to compensation, and bona fide applies his mind with the information in his possession and knowledge to the question of the application of the law as he knows it to the facts of his own particular case, and misconceives his true position in law or fact or in both combined, he is not ignorant, but mistaken, although his mental process may not reach the standard which would be ascribed to a reasonable man.
If one applies this rule to the facts of the case, it appears that the applicant not only knew of the statute, but had made use of it successfully in recovering compensation for physical injury, so that he may also be presumed to have been aware that notice was required. He thought, however, that an accident was an essential and did not know that he could make a claim if he were put off with a sickness which had been caused by his work. If he relied merely upon the last part of this statement, it might indeed be suggested that he was only ignorant of the law, but if the two things be combined and his idea was that the necessary point of commencement was an accident, he may well have been the victim of a mistake. Even if he read the definition of ‘injury’ in the latest Act and was somewhat dull of comprehension, he might have come to such a conclusion.
The Chairman of the Workers’ Compensation Commission in his judgment, after considering and referring to all the cases, said ‘my opinion is that the applicant’s ignorance of his rights cannot be held to be a mistake within the meaning of s.53 and no reasonable cause has been shown of the applicant’s failure to comply with the statutory conditions precedent.’ With every respect, in my opinion, he restricted the meaning of mistake within too narrow limits, and consequently misdirected himself in the application of the law to the facts.”
As these authorities show, there is a thin line between “mistake” and “ignorance”. If a person acts on the basis of knowledge of the Act and that knowledge is wrong, or the facts upon which the person relies are wrong, then the person has made a mistake. If a person acts without any knowledge about the Act or an aspect of it, and consequently does not know whether or not it applies, then the person is ignorant. The distinction between ignorance and mistake requires very careful attention to the evidence, as Keely J pointed out in Connors.
In the present case, the conclusion of the Tribunal on this issue was stated as follows:
“I am satisfied upon the T‑documents and more so upon the applicant’s submissions that his failure to claim within the period required by s.54 of the 1971 Act did amount to mistake on his part. I am satisfied, having regard to his submissions, that he was of a belief - which I believe he genuinely held - that only persons who suffered ‘an accident’ at work or while travelling to or from work were entitled to claim compensation. He reinforced this opinion by his recollection of an employee who whilst wearing a neck brace would collect compensation payments each fortnight and where it was known that that person had suffered spinal injuries whilst driving a Commonwealth vehicle in the course of employment. The applicant relied on these circumstances to explain his mistake in being unaware that his alcoholism and chronic psychosis could be a basis for a claim for compensation, those conditions not amounting, in his opinion, to a ‘accident’.”
The final sentence of this passage gives rise to a doubt whether the Tribunal properly applied the law. The reference to Mr Roycroft being “unaware” that his medical problems could be a basis for a claim for compensation may suggest that the Tribunal found that he did not know whether his problems could found a claim for compensation. On the other hand, in the same sentence, the Tribunal expressed the finding that Mr Roycroft formed an opinion that the conditions were not the result of an accident and, consequently, were not the basis for a claim for compensation. This finding reflects the view that Mr Roycroft adverted to the question whether his particular medical problems could be the subject of a claim for compensation and that Mr Roycroft, on the basis of his knowledge of the Act, concluded that they were not. The proper approach to the assessment of administrative decisions was recently stated by Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 291, as follows:
“.... The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law (Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 286-287).”
The judgment of Brennan CJ, Toohey, McHugh and Gummow JJ at 271 is to the same effect. This approach leads me to conclude that the use of the word “unaware” was a verbal slip. The sense of the balance of the sentence and the context of the decision as a whole leads me to the view that the Tribunal found that Mr Roycroft had adverted to his ability to claim compensation for his medical problems, and that he had wrongly concluded that he could not. Hence, the Tribunal properly applied the distinction between mistake and ignorance.
Mr Croyle also argued that the mistake must relate to the subject matter of the failure to comply with the requirements of service. In other words, the mistake must relate to the time in which to serve the claim. The Tribunal could not find that Mr Roycroft was mistaken about the time in which to serve the claim, it was contended, unless it found that he had adverted to the time in which to serve the claim. As there was no finding that he had adverted to the time in which to serve the claim, it was not open to the Tribunal to find that he was mistaken in a relevant way. I do not accept this argument. Mr Roycroft believed that he could not make a claim. Where a worker adverts to his right to claim, and forms the view, wrongly, that he cannot claim, the failure to serve the claim within time is a result of the mistake. The nature of the mistake necessarily subsumes the particular question of the time for service of a claim. In cases falling within the fourth proposition established by the authorities referred to earlier, the subject matter of the mistake is the time for service of the claim, because the worker rightly concluded that he was entitled to claim compensation. Mr Croyle relied on the wider proposition that, in all cases, the mistake must directly involve the manner or timing of the claim. Stevenson shows that this is not so. Rather, any mistake must only occasion the failure to serve the claim in time: Black v City of South Melbourne [1963] VR 34, at 37. That is what happened here. The Tribunal made no error of law in concluding that Mr Roycroft’s failure to serve his claim in time was the result of a mistake.
Mr Croyle then argued that the Tribunal failed to refer to the evidence on which the findings relating to mistake were based. He contended that this failure was a breach of s 43(2B) of the Administrative Appeals Tribunal Act 1973 (Cth) and constituted an error of law. Again, I do not accept this argument. The Tribunal is not obliged to refer to all the evidence relating to every finding made by it. It must set out the evidence which is important in persuading it to reach the conclusion: McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609. In relation to the finding that Mr Roycroft was mistaken as to the sort of injury for which he could claim compensation, the Tribunal did refer to his evidence as to his belief and his experience which gave rise to the belief. In my view, the Tribunal did state sufficiently the evidence upon which its finding concerning mistake was based. The reference was brief, but the scope of the evidence was limited. The brevity was further justified because the application was a preliminary application and did not warrant the more elaborate treatment which a hearing on the merits of the substantial application may deserve.
Finally, Mr Croyle submitted that the Tribunal erred in the following passage:
“.... In the present application there is nothing to suggest that the applicant knew that he suffered injury which had a connection with his employment within six months of its occurrence or at all until shortly prior to then [sic] he served his claim”,
He submitted that the Tribunal approached the case on the basis that the knowledge of Mr Roycroft, which would prevent the deeming of service, was knowledge not only of the injury but knowledge that the injury had a connection with Mr Roycroft’s employment. Mr Croyle argued that knowledge of the connection with employment was not a necessary element - knowledge of the injury was alone relevant. It is probable that the reference to the connection between the injury and the employment was a reference to the requirement in s 27 of the 1971 Act that the Commonwealth is required to pay compensation in respect of injury “arising out of or in the course of the employment of an employee by the Commonwealth”. I doubt that the Tribunal adopted a wrong approach on this issue, but I do not need to determine the matter because it is immaterial for present purposes. The operative part of the decision concerned the existence of a mistake made by Mr Roycroft. The findings and reasoning on that issue were determinative without reference to the above passage. Thus, any error contained in the above passage was not determinative of the application and, therefore, does not provide a basis for relief on appeal.
CONCLUSION
In the result, the Tribunal erred in law in only one minor respect, that is, in relation to the finding of the date on which Mr Roycroft made his claim. The formal decision of the Tribunal is stated as follows:
“The claim for compensation, made by the applicant, should be deemed to have been served pursuant to s 54(6) of the Compensation (Commonwealth Government Employees) Act 1971”.
Although the formal decision does not record the date of the claim, the reasons make it clear that the Tribunal was referring to a claim made on 11 August 1989. It may be that the parties can agree on a variation to the decision of the Tribunal. If they cannot do so, I will make orders with the effect that the Tribunal reconsider the question of the date of the claim for compensation. In the meantime, I will adjourn the matter to a date to be fixed, to allow the parties to consider these reasons and also to allow for argument on the question of costs.
I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice North
Associate:
Dated: 15 August 1997
Counsel for the Applicant: Mr M J Croyle Solicitor for the Applicant: Wisewoulds Counsel for the Respondent: Ms G L Schoff Solicitor for the Respondent: Christopher Bennett Date of Hearing: 21 May 1997 Date of Judgment: 15 August 1997