Ward and Comcare - [2002] AATA 953

DECISION AND REASONS FOR DECISION [2002] AATA 953

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/1097

GENERAL ADMINISTRATIVE DIVISION       )
           Re      NEIL WARD
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr O Rinaudo, Member

Date18 October 2002
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
Commonwealth Employees Compensation Act 1930

Banks v Comcare [1996] FCA 382
Murray v Baxter (1914) 18 CLR 622
Re Willis and Australian Telecommunications Commission and anor (1989) 19 ALD 665
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

REASONS FOR DECISION

18 October 2002 Mr O Rinaudo, Member

Decision under Review

In this case the applicant has sought review of the decision of the respondent, Comcare, to reject his claim for compensation, made by determination of the respondent in June 2001, because the applicant's application was not submitted within the time allowed under section 16 of the Commonwealth Employees' Compensation Act 1930 ("the 1930 Act") and because the applicant had not satisfied the respondent that the failure to claim within time was due to "mistake, absence from Australia or other reasonable cause". This decision was affirmed by an authorised review officer and the applicant's claim for compensation was disallowed as it was out of time.
Evidence
The evidence presented a the hearing consisted of the following exhibits:

Exhibit 1 Letter from Alan Johns dated 21 August 2002
Exhibit 2 Letter from JM Bennett, WO2, Chief Clerk, Australian Army dated 14 August 2002
Exhibit 3 Statement of Neil Charles Ward dated 3 June 2002 and attachments
Exhibit 4 Affidavit of Paul Ernest Alfred Ontong sworn 26 August 2002.

In addition the applicant, Mr Ward, gave oral evidence at the Tribunal. Mr Ward told the Tribunal that he had enlisted in the Australian Army in May 1962. He discharged in May 1982 having attained the rank of Warrant Officer 2nd Class. Mr Ward told the Tribunal that he was serving in Malaya in 1967 where he developed a dermatitis condition on the hands and feet. He says that on many occasions he had to wear thongs and that his hands and feet were covered with creams. He would be put on light duties.
Mr Ward said that he attended at the Orderly Room and a Corporal examined him and placed him on light duties. The Corporal told Mr Ward not to worry about filling out a D11 (a form which noted injuries or unusual diseases). Mr Ward said it was the Australian Medics who ran the Orderly Room who decided who were given the D11 and who would be allowed to compile one. Accordingly, no record of Mr Ward having contracted the skin complaint in Malaya was recorded. In about 1973, Mr Ward was diagnosed with recurrent dermatitis…

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 Ward and Comcare

Details

AGLC: Ward and Comcare [2002] AATA 953
Case: [2002] AATA 953
Decision Date: 18 October 2002

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Ward and Comcare was heard, where the central issue was the timing of a claim for compensation under the Commonwealth Employees Compensation Act 1930. The applicant, Mr. Ward, contended that his failure to lodge his claim within the statutory period was due to circumstances that should excuse the delay, such as a mistake or absence from Australia. The court was tasked with determining whether the applicant's reasons were sufficient to warrant an extension of the time limit for filing the claim.

The legal issue that the court had to decide was whether the applicant's delay in lodging the claim was attributable to a mistake, absence from Australia, or other reasonable cause as permitted under the Act. This required a careful consideration of the specific circumstances of Mr. Ward's case and a comparison with established case law that dealt with similar issues, such as Banks v Comcare, Murray v Baxter, and Re Willis and Australian Telecommunications Commission.

The court examined the facts and determined that the applicant's delay was not due to a mistake, absence from Australia, or any other reasonable cause. It was found that the applicant had been aware of the need to make a claim but had failed to do so within the prescribed period. The court relied on precedents such as Murray v Baxter and Re Willis, which set out the criteria for extending the time limit, and found that these criteria were not met in Mr. Ward's case. Consequently, the court dismissed the application for an extension of time.

As a result of the court's findings, Mr. Ward's claim for compensation was deemed to be out of time and was not allowed. The court's decision emphasised the importance of strict adherence to statutory time limits unless there are compelling circumstances that warrant an extension, as outlined in relevant case law.

Orders