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 774REASONS 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…
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- AGLC
- Williams and Comcare [2004] AATA 8
- Case
- [2004] AATA 8
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the transitional provisions of the Safety, Rehabilitation and Compensation Act 1988 applied to Williams' claim and whether his failure to provide notice of his disease as soon as practicable under the Commonwealth Employees’ Compensation Act 1930 barred his claim. Additionally, the court had to consider if Williams' failure to make a claim within the specified period due to his lack of knowledge about the disease excused his non-compliance with the statutory requirements.
The court held that the transitional provisions did not apply to Williams' situation, as the disease was not diagnosed until after the commencement of the new Act. It was also determined that Williams' failure to provide notice of his disease as soon as practicable and within six months of becoming aware of it prejudiced the Commonwealth and was not due to any reasonable cause. The court found that these failures barred Williams' claim for compensation. The Tribunal's decision to affirm the decision under review was upheld by the court.
Orders
Orders of the court
The Tribunal affirms the decision under review.
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
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