Williams and Comcare

[2004] AATA 8

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 8

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No Q2003/413

GENERAL ADMINISTRATIVE DIVISION		)
Re		CHRISTOPHER WILLIAMS

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date9 January 2004 

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

...................(Sgd)......................

RG Kenny
  Member

CATCHWORDS

WORKERS’ COMPENSATION – appropriateness of treatment for disease prior to commencement of Safety, Rehabilitation and Compensation Act 1988 – transitional provisions – notice not given as soon as practicable under Commonwealth Employees’ Compensation Act 1930 – Commonwealth prejudiced by want of notice – want of defect of notice not due to mistake or other reasonable cause – failure to make claim within specified period – failure to make claim not due to mistake or other reasonable cause - notice not given as soon as practicable after applicant first becoming aware of disease - failure to make a claim within six months of first becoming aware of disease

Commonwealth Employees’ Compensation Act 1930 ss 4, 9, 10, 16

Safety, Rehabilitation and Compensation Act 1988 s 124

Banks v Comcare [1996] FCA 382
Re Buttfield and Comcare [2001] AATA 335
Comcare v Luck (1999) 29 AAR 403
Commonwealth v Connors (1989) 86 ALR 247
Re McCarthy and Comcare [2002] AATA 5
Re Harbutt and Department of Defence (1998) 51 ALD 159
Re Muras and Department of Defence (1988) 52 ALD 579
Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534
Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665
Re Siemsen and Comcare [1999] AATA 871
Secretary, Department of Defence v Gorton (2000) 98 FCR 497
Telstra Corporation v Roycroft [1997] FCA 774

REASONS FOR DECISION

9 January 2004  Mr RG Kenny, Member      

Background

1.      On or about 2 April 2002, Christopher Williams (the applicant) lodged a “Claim for Rehabilitation and Compensation” in relation to “depression”, contending that the condition had developed as a result of failure by the Australian Army to treat him for a psychiatric condition which he referred to as becoming manifest while he was serving in Malaya.

2.      On 13 January 2003, a delegate with the Military Compensation and Rehabilitation Service (MCRS) determined that the claim should be disallowed and, on 18 March 2003, another MCRS delegate made a reviewable decision which affirmed that determination and also determined that the requirements for timely notice and claim had not been complied with.

3.      On 13 May 2003, an application for review of that decision was received by the Administrative Appeals Tribunal (the Tribunal) and the matter is to be determined under the Administrative Appeals Tribunal Act 1975 (the AAT Act).

Appearances

4.      The applicant was represented by Mr D O’Gorman of Counsel.  Comcare (the respondent) was represented by Mr C Clark of Counsel.

5.      The following material was tendered and taken into evidence:

Exhibit 1 the documents prepared in accordance with section 37 of the AAT Act (“T” Documents – T1 to T23);

Exhibit 2 a statement, dated 22 July 2003, by…