Topping and Comcare - [2003] AATA 41

DECISION AND REASONS FOR DECISION [2003] AATA 41

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/185

GENERAL ADMINISTRATIVE DIVISION       )
           Re      WILLIAM TOPPING
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr O Rinaudo, Member

Date17 January 2003
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..................(Sgd)...................
O Rinaudo
Member
CATCHWORDS
COMPENSATION – practice and procedure – time limits – time in which application for compensation to be made – whether applicant's failure to lodge claim within time was due to a mistake, absence from Australia or other reasonable cause
Safety, Rehabilitation and Compensation Act 1988
Commonwealth (Commonwealth Government Employees) Act 1971

Banks v Comcare [1996] FCA 382
Murray v Baxter (1914) 18 CLR 622
Re Roycroft and Telstra Corporation (AAT 11246, 24 May 1996)
Re Spear and Comcare (AAT 13061, 8 July 1998)
Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665
Commonwealth of Australia v Connors (1989) 86 ALR 247
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

REASONS FOR DECISION

17 January 2003 Mr O Rinaudo, Member

Decision under Review

The applicant has sought review of a decision of the respondent, made in January 2002, to reject his claim for compensation (under the Safety, Rehabilitation and Compensation Act 1988) on the basis that his claim was not submitted within the time allowed under s 54 of the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act"), and because the applicant had not satisfied the respondent that the failure to claim within time was due to ignorance, mistake or other reasonable cause.
Evidence
The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit 1), and the following exhibit:

Exhibit 2 Letter from the applicant to the Military Compensation and Rehabilitation Service annexing:
Report of Dr Butler and medication record
Report of Dr Harris
Hospital Records
Records from QML
Records from Mater Hospital
Records from Queensland Pathology

The Tribunal heard this matter on 26 August 2002 in Brisbane. Mr Topping attended the hearing, accompanied by his wife, and represented himself. Mr Clark of counsel appeared for the respondent.
The applicant was born on 2 July 1935 and joined the Armed Forces on 11 February 1955. The applicant was discharged from service on 24 June 1958 following repeated absenteeism without leave. During his service with the armed forces, the applicant was stationed at Warradale, Port Augusta, Renmark and Maralinga. The applicant claims that whilst at Maralinga in 1956 he was exposed to atomic testing.
On 16 March 2001, the applicant submitted a claim for compensation in relation to a chronic lung disability, which he stated had come to his attention in 1985. He first received treatment for the condition in 1985 and he contends that his disability was caused by his employment in the armed forces, particularly by his exposure to atomic testing at Maralinga.
The applicant explained to the Tribunal that, although he believed his lung condition was caused by his exposure…

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 Topping and Comcare

Details

AGLC: Topping and Comcare [2003] AATA 41
Case: [2003] AATA 41
Decision Date: 17 January 2003

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal was a dispute between Topping and Comcare. The dispute involved an application for compensation for a work-related injury under the Safety, Rehabilitation and Compensation Act 1988. The Tribunal had to determine whether Topping's failure to lodge a claim within the specified time was due to a mistake, absence from Australia, or other reasonable cause.

The primary legal issue was whether the applicant's failure to lodge a claim within the time limit was due to a mistake, absence from Australia, or other reasonable cause, as per section 54 of the Commonwealth (Commonwealth Employees) Act 1971. The Tribunal also needed to consider whether the failure to lodge the claim prejudiced the respondent, Comcare.

The Tribunal found that the applicant's delay in lodging the claim was not due to a mistake, ignorance, absence from Australia, or other reasonable cause. The Tribunal noted that the applicant misunderstood the difference between compensation and pensions from the Department of Veterans' Affairs and did not know of his rights to claim compensation. The Tribunal also considered the issue of prejudice, referencing the High Court decision in Brisbane South Regional Health Authority v Taylor, which stated that the discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. The Tribunal determined that there was no prejudice to Comcare in allowing the claim.

The Tribunal found that the applicant's failure to lodge a claim within the time limit was not due to a mistake, absence from Australia, or other reasonable cause. Therefore, the claim was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In Re Roycroft and Telstra Corporation (AAT 11246, 24 May 1996), Senior Member Handley considered the meaning of ignorance in s 54 of the 1971 Act. The Senior Member found that, following the Federal Court decision in Commonwealth of Australia v Connors(1989) 86 ALR 247, if ignorance of a person's legal rights is the only basis to explain a delay in lodging a claim, the claim must fail. Therefore, the explanation of the applicant that he did not know that he could claim compensation is not a sufficient explanation for his delay in lodging his claim. What then constitutes a "reasonable cause"? In Banks v Comcare [1996] FCA 382, the Federal Court stated that:"The expression 'reasonable cause' has been held to refer to some act or omission which operated to prevent the giving of notice and one which, in the circumstances prevailing, is consistent with a reasonable standard of conduct, of such a nature that it might be expected to delay the giving of the necessary notice or claim: see Black v City of South Melbourne [1953] VR 34, 38: Quinlivan v Portland Harbour Trust [1963] VR 25, 28." It has been said that one applies the "test by looking at what was a reasonable cause of conduct for the plaintiff in the circumstances in which he found himself… It is an objective test taking into account the subjective circumstances of the plaintiff in each of those cases": Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665 (which was applied in Re Spear and Comcare (AAT 13061, 8 July 1998)). In the present case, there does not appear to be any explanation for the delay other than that the applicant misunderstood the difference between compensation and pensions from the Department of Veterans' Affairs, and the fact that he did not know of his rights to claim compensation. In the circumstances there does not appear to be any reasonable explanation of why the applicant did not make a claim within the time required. The Tribunal notes that the provisos in s 54 are inclusive, that is, provided there is no prejudice and the failure occurred by mistake, ignorance, absence from Australia or other reasonable cause, the claim should be allowed. As the Tribunal has determined in this case that the failure was not caused by mistake, ignorance, absence from Australia or other reasonable cause, it is not strictly necessary to consider the issue of prejudice. However, for completeness the Tribunal considers this issue. In considering the issue of prejudice, reference was had to the High Court decision of Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, particularly the decision of McHugh J, which is most instructive. That case dealt with application for exercise of the discretion contained in s 31 of the Limitation of Actions Act 1974 (Qld) with respect to a claim for personal injuries. When discussing the issue of prejudice, his Honour noted (at 551):"The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limits has been driven by the general perception that 'where there is delay the whole quality of justice deteriorates' (R v Lawrence [1982] AC 510 at 517 per Lord Halsham of St Marylebone LC). Sometimes the deterioration in quality is palpable as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo [(1972) 407 US 514 at 532], 'what has been forgotten can rarely be shown'. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed."