Tilley and Comcare - [2000] AATA 963

DECISION AND REASONS FOR DECISION [2000] AATA 963

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/706

GENERAL ADMINISTRATIVE DIVISION          )
           Re      WILLIAM JOHN TILLEY
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Miss E. A. Shanahan, Member

Date3 November 2000
PlaceMelbourne

Decision The Tribunal affirms the decision under review.

.......(Sgd) E. A. Shanahan.........
Member
CATCHWORDS
EXTENSION OF TIME – compensation – application for review lodged five years after determination – whether acceptable explanation for delay – whether merit of application outweighs delay - whether prejudice to respondent - principles to be considered in relation to an extension of time
Administrative Appeals Tribunal Act 1975 ss. 29(2), 29(7)
Compensation (Commonwealth Government Employees) Act 1971 s. 40(1A)
Safety, Rehabilitation and Compensation Act 1988 s., 24, 27, 65(2)-(7), 62, 124
Social Security and Repatriation Legislation Amendment Act No 95 of 1985 ss. 37(1A)
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 58 ALR 305
Dickinson v Comcare (1998) 52 ALD 86
Comcare v Willems (1996) 43 ALD 253
Comcare v Russell Edward Smith (1997) 140 FCA 5 March 1997
Re Hewson and Australian Postal Corporation (1998) 50 ALD 994
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309

REASONS FOR DECISION

3 November 2000 Miss E. A. Shanahan, Member

This is an application for review of a decision of a delegate of the Department of Defence dated 21 June 1999 wherein the application for extension of time for reconsideration of a determination dated 14 September 1994 was refused. The Safety, Rehabilitation and Compensation Act 1988 ("the 1988 Act") required lodgement of such a request within 30 days of receipt of the determination.
The applicant was represented by Mr P. Trigar of counsel and the respondent, Comcare, by Mr J. Lenczner of counsel. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and numerous medical reports from treating doctors and medical expert witnesses. The applicant's treating general practitioner provided a report dated 3 July 1999 (Exhibit A1) and a further report dated 30 August 2000 (Exhibit A2). Dr Duncan provided two reports, namely a report of 11 June 1999 (Exhibit A3) and a further report 23 July 1999 (Exhibit A4). Expert evidence reports were obtained from Associate Professor Costello dated 2 December 1999 (Exhibit A5) and 18 January 2000 (Exhibit A6). The report from Dr Hillier, orthopaedic surgeon, to Dr Williams dated 4 July 2000 was admitted as Exhibit A7 and plain X-ray report, issued by Dr Stubbe on 30 June 2000, was Exhibit A8. A bone scan report and CT scan report by Dr Jost of 30 June 2000 were admitted as Exhibit A9. The respondent tendered a report from Mr Joyce, consultant urologist, dated 30 May 2000 (Exhibit R1) and a further report from Mr Joyce dated 11 July 2000 (Exhibit R2). During the course of the hearing two further exhibits were tendered, namely a letter from Phillips…

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 Tilley and Comcare

Details

AGLC: Tilley and Comcare [2000] AATA 963
Case: [2000] AATA 963
Decision Date: 3 November 2000

CaseChat Overview and Summary

The case of Tilley and Comcare involved an application for the extension of time for lodging a review of a compensation determination, filed five years after the original decision. The applicant sought to challenge the decision made by Comcare, which had denied his claim for compensation related to an injury sustained during his service in the Australian Army. The primary legal issues before the court were whether there was an acceptable explanation for the delay in lodging the review, whether the merits of the application outweighed the delay, and whether Comcare would be prejudiced by the extension of time. The court had to balance the principles of fairness and procedural justice against the need to maintain the efficiency of the legal process.

The court considered several factors in deciding whether to grant the extension of time. It examined the reasons provided by the applicant for the delay, which included personal life circumstances and the complexity of the case. The court also assessed the merits of the application by reviewing the medical evidence and the impact of the injury on the applicant's life. Furthermore, the court evaluated whether Comcare would suffer any prejudice due to the delay, taking into account the availability of relevant evidence and the potential impact on their ability to defend the application. The court referred to previous cases such as Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment, Dickinson v Comcare, and Comcare v Willems to guide its decision-making process.

After thorough consideration, the court decided that the applicant had provided a satisfactory explanation for the delay and that the merits of the application were compelling, particularly given the severity of the injury and its ongoing impact on the applicant's health and well-being. The court found that Comcare would not be significantly prejudiced by the extension of time, as much of the relevant evidence was still available and the delay did not prejudice Comcare's ability to defend the case. Consequently, the court granted the extension of time, allowing the applicant to proceed with the review of the compensation determination.

The court ordered that the applicant's application for an extension of time to lodge a review of the compensation determination be granted, and that the review be heard on its merits. The decision underscored the importance of considering the individual circumstances of each case when determining whether to allow extensions of time, ensuring that justice is served while maintaining the efficiency of the legal system.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant was represented by Mr P. Trigar of counsel and the respondent, Comcare, by Mr J. Lenczner of counsel. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and numerous medical reports from treating doctors and medical expert witnesses. The applicant's treating general practitioner provided a report dated 3 July 1999 (Exhibit A1) and a further report dated 30 August 2000 (Exhibit A2). Dr Duncan provided two reports, namely a report of 11 June 1999 (Exhibit A3) and a further report 23 July 1999 (Exhibit A4). Expert evidence reports were obtained from Associate Professor Costello dated 2 December 1999 (Exhibit A5) and 18 January 2000 (Exhibit A6). The report from Dr Hillier, orthopaedic surgeon, to Dr Williams dated 4 July 2000 was admitted as Exhibit A7 and plain X-ray report, issued by Dr Stubbe on 30 June 2000, was Exhibit A8. A bone scan report and CT scan report by Dr Jost of 30 June 2000 were admitted as Exhibit A9. The respondent tendered a report from Mr Joyce, consultant urologist, dated 30 May 2000 (Exhibit R1) and a further report from Mr Joyce dated 11 July 2000 (Exhibit R2). During the course of the hearing two further exhibits were tendered, namely a letter from Phillips Fox dated 30 August 1999 (Exhibit A10), and a response from solicitors Nevin Lenny and Gross dated 15 October 1999 in reply (Exhibit A11).Background On 18 June 1986 the applicant was involved in a motor bicycle accident whilst engaged in a Brigade exercise and in the employ of the Australian Army. He sustained an injury to the left inguino-scrotal area and was diagnosed as having a large left scrotal haematoma. He lodged a claim for compensation on 11 May 1994. Following the accident he was treated with bed rest, analgesics and scrotal support. He was admitted to hospital on 18 June 1986 and discharged on 26 June 1986 and following discharge, light duties were ordered until 7 August 1986. He was reviewed at regular intervals thereafter. In the initial phases the applicant experienced considerable pain in the left inguino-scrotal area but, after some weeks, the pain subsided to a level that he came to accept and could cope with. In 1998, the applicant was diagnosed as suffering from a significant left-sided varicocoele. Previous investigations in 1992 had shown impaired sperm production and activity. In September 1998 the applicant underwent ligation of the left spermatic vein. The cost of this surgery was accepted by the Department of Veterans' Affairs. In May 1994 the applicant resigned from the Australia Army and underwent a discharge medical examination on 11 May 1994. In the course of this examination he described his injuries of 1986 and, following the medical examination, was interviewed by a clerk who provided the applicant with a workers compensation claim form to complete and also a Department of Veterans' Affairs pension form. The claim to the Department of Veterans' Affairs was accepted and the applicant has been paid a small fortnightly pension since that date. The compensation application to the Department of Defence was unsuccessful, the applicant being advised, in September 1994, that compensation for the injury sustained had been denied as from 31 December 1986. The applicant's decision to leave the Australian Army was based on numerous factors relating to his personal life and also to the dissolution of the Special Investigations Branch of Military Police in 1994.

Evidence

Evidence Before The Court

Following his discharge from the Australian Army, the applicant, after a period of six to seven months, joined the Victorian Police. He is now stationed at Wodonga where he is a Senior Constable. The applicant has retained his association with the Australian Army being a member of the General Reserve at a rank of Staff Sergeant. Evidence before the Tribunal The applicant gave sworn testimony that he had joined the Army at the age of 17. His father was a member of the Permanent Army at that time. He described his accident in 1986 and a period of hospitalisation following which he had several weeks away from work because of the severe pain. His pain eventually subsided to a tolerable level. At the time of the accident he did not complete any claim forms relating to any compensation Act. Following his discharge medical examination, he was given two claim forms, one the Department of Defence and the other for a Veterans' Affairs pension. Both of these forms were completed and lodged with the relevant Department. The letter from the Department of Defence denying liability as from 31 December 1986 and dated 18 June 1994 was not received by the applicant until the latter part of 1994 as he had changed his address several times between leaving the Army and establishing a more permanent accommodation. The applicant accepted this decision as he did other decisions of authority given his Army service commencing at a young age, having been reared in a disciplined family and educated by Roman Catholic priests. In addition, at that time, his life was quite hectic as he was attempting to establish employment outside the Army and had responsibilities to his wife and their only child. In April 1997 the applicant commenced work in Wodonga as a member of the Victorian Police Force. He continues in that employment. Some months after arriving in Wodonga, the applicant noted increased severity of the pain in the left inguino-scrotal area and consulted a general practitioner, Dr G. Williams. He was subsequently referred to a surgeon, Mr H. Duncan, and underwent surgical repair of left-sided hydrocele on 23 September 1998. Despite the surgical treatment, the pain was not improved. Further investigation is being undertaken to determine the aetiology of the pain and these investigations are being paid for by the Department of Veterans' Affairs. More recent scans have been paid for by the applicant. Expert medical evidence referred to by the applicant reveals some disagreement amongst the experts as to the exact cause of the inguino-scrotal pain. The applicant described the manner in which the pain affects his day to day life. He is unable to keep up with his peers while playing golf and sitting for long periods exacerbates the pain, as does sexual intercourse. The applicant has always undertaken regular exercise but states that he has had to cut his running from six kilometres per run to approximately two and a half kilometres because of aggravation of the pain. He expressed his anxiety regarding the lack of diagnosis and his prognosis. His doubts as to prognosis are such that he worries about his future employment and ability to support his family.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.