McCarthy and Comcare [2002] AATA 5 (10 January 2002)

Last Updated: 11 January 2002

DECISION AND REASONS FOR DECISION [2002] AATA 5

ADMINISTRATIVE APPEALS TRIBUNAL

No Q2001/828

GENERAL ADMINISTRATIVE DIVISION

Re LLOYD STEWART McCARTHY

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date 10 January 2002

Place Brisbane

Decision The Tribunal 1. sets aside the decision under review; and 2. remits the matter to the Respondent with the direction that the Applicant's claim for compensation for right ankle injury meets the requirements of sections 53 and 54 of the Compensation (Commonwealth Government Employees) Act 1971 regarding notice and claim and is to be admitted for consideration under the Safety, Rehabilitation and Compensation Act 1988; and 3. orders the Respondent to pay the Applicant's costs, if any, of these proceedings in accordance with the Tribunal's General Practice Direction

R G Kenny

Member

CATCHWORDS

COMPENSATION - injury occurring prior to commencement of Safety, Rehabilitation and Compensation Act 1988 - transitional provisions - whether compensation payable under Compensation (Commonwealth Government Employees) Act 1971 - whether notice of injury was served or deemed to have been served on Commonwealth - whether claim for injury served or deemed to have been served on Commissioner - prejudice to the Commonwealth - applicant's ignorance of compensation rights

Safety, Rehabilitation and Compensation Act 1988 s 124(2)(c)

Compensation (Commonwealth Government Employees) Act 1971 ss 53, 54

Compensation (Commonwealth Government Employees) Regulations 1971 s-reg 15(1)

Brennan v Comcare (1994) 50 FCR 555

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Brooks v Comcare [2000] AATA 296

Buttfield v Comcare [2001] AATA 335

Comcare v Luck (1999) 29 AAR 403

Commonwealth of Australia v Connors (1989) 86 ALR 247

GC Singleton & Co Pty Ltd v Lean (Seymour) (1969) 43 ALJR 369

Johnston v The Commonwealth (1982) 150 CLR 331

Murray v Baxter (1914) 18 CLR 622

Re Maple and Commonwealth of Australia (1987) 14 ALD 331

Re Nagy and Australian Postal Commissioner (1988) 15 ALD 136

Re Simmonds and Commonwealth of Australia (1987) 12 ALD 470

Re Willis and Australian Telecommunications Commission and Commonwealth of Australia (1989) 19 ALD 665

Repatriation Commission v Hawkins (1993) 117 ALR 225

Wilson v Wilson's Tile Works Proprietary Limited (1960) 104 CLR 328

REASONS FOR DECISION

10 January 2002 Mr R G Kenny, Member

Background

1. On 25 October 2000, the applicant completed a "Claim for Rehabilitation and Compensation" for an injury which he described as a "roll out injury to right ankle". He stated that the injury had occurred to him on 28 October 1979. The form was received by the Department of Veterans' Affairs on 7 November 2000.

2. On 5 June 2001, a delegate with the Military Compensation and Rehabilitation Service determined that the matter could not be heard because notice of injury had not been served on the Commonwealth within the relevant statutory time frame. The applicant sought review of that decision on 22 June 2001 and, on 21 August 2001, the Manager Reconsideration with the Department of Veteran's Affairs as delegate for Comcare (the respondent) affirmed the initial decision on the basis that a claim by the applicant for compensation for injury under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) was made out of time and, therefore, could not be heard.

3. On 11 September 2001, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).

Appearances

4. The applicant did not attend the hearing but spoke to the Tribunal and gave evidence by telephone. Mr Derrington of counsel appeared on behalf of the respondent.

5. In evidence was a set of documents (the T Documents) and these included the application for review (T1) which contained a statement by the applicant setting out his reasons for believing that the decision was wrong. Also in evidence was a statement, dated 18 October 2001, by the respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the Act) (T2). At the hearing, the following material was taken into evidence:

Exhibit 1 - documents prepared in accordance with section 37 of the Act (the T documents);

Exhibit 2 - a statutory declaration dated 29 November 2001 by Bradley Cyril Simpkins; and

Exhibit 3 - a submission from the respondent.

Applicant's evidence

6. The applicant said that the injury had occurred to him at approximately 1200 hours on 28 October 1979 at the Shoalwater Bay training camp where he was undergoing an exercise as a member of the Australian Army Reserve in which he served as a member from 5 December 1978 until 29 June 1981. He described the exercise as being called Kangaroo 3 and as being integrated with members of the Regular Army. He said that, while running through long grass and carrying a full pack and weapon, he slipped and fell thereby injuring his right ankle. He said that he felt extreme pain in the ankle and was not able to walk for two hours or so but, thereafter, was able to continue with the exercise by using his rifle as a walking stick. The exercise finished two days after the occurrence of the injury and he then sought medical treatment.

7. He said that the place of treatment was either at the Battalion Regimental Aid Post or at a Field Hospital tent and that he gave his name and unit details. He said that he assumed that these would be kept in his service records. He had that belief because he had previously served in the Regular Army from March 1974 until March 1977 and this was the practice he was familiar with. He said that, after he was examined, he was advised to see his civilian doctor at the completion of the exercise. He said that he attended his local doctor on return to his home town of Gympie and was diagnosed with torn ligaments and bruising in the right ankle and was given one week of sick leave from his employment.

8. The applicant referred to a witness, Mr L Landroth, who was present at the time of the injury, and stated that he had contacted him. He said that Mr Landroth had sustained a head injury in a motor vehicle accident and had no recollection of the incident relating to the applicant's injury. However, the applicant was able to identify two other soldiers, Durshim Begeda and David Hasthorpe, and a fellow employee, Bradley Simpkins, who were aware of the applicant's injury at the time.

9. After the injury was sustained, the applicant continued to serve in the Reserves and he said that, on occasions, he advised medical staff of his ankle problem and asked for advice about treatment. He said that the only response he had ever received was that he "must be joking". He said that he believed that this was because he was in the Army Reserves rather than the Regular Army.

10. The applicant stated that the condition seemed to improve but that it had never returned to the same state it had been in prior to the injury. He said that, until recently, he had not received any medical treatment for the condition after the initial consultation in 1979. He said that the condition had always caused him discomfort at his work as a fitter and turner with the local shire council but that, since his retirement from that position, it had been less of a problem because he is not standing for such long periods as he used to. He said that he had worked for the council for about 15 years. Eventually, he decided to see his local doctor about the condition and was referred to Dr Peter Winstanley, orthopaedic surgeon, in June 2000.

11. The applicant also said that he lives on a rural property which, at present, is in the process of being sub-divided. Previously, and until about 5 years ago, he said that he had used the land to raise cattle and, over the period in which he was in the Reserves and working for the local council, had run some 35 head of cattle. He said that he had been responsible for handling the cattle and that he carried out tasks such as mustering by using a motor cycle.

12. The applicant also said that he had always been interested in running and that, over the years and until about 8 years ago, he would participate in "fun runs" on three or four occasions each year. He said that these were typically 10 to 12 kilometres in distance. He described himself as a natural runner who was "good at it" and, therefore, found that it had not been necessary for him to keep up with training for his runs.

13. In cross examination, the applicant said that he had lodged his claim in the event that he continued to have trouble with his ankle in the future. He said that he had been unaware of any avenue of making a claim until after he had seen Dr Winstanley. This was because of information he was given in a chance meeting he had with a veterans' advocate who worked with the Nanango sub-branch of the Returned and Services League of Australia (RSL). He also said that there had been nothing to prevent him from seeking treatment for the condition over the years and that he had always put up with the discomfort and had overcome any periodic swelling by resting his foot.

14. The applicant stated that he had not made a claim for compensation prior to October 2000 because he had not been aware of the requirement to do so. He said that he had not been made aware at any time during his Army Reserve service that there was any time limit on the making of any claim for compensation or that, indeed, a claim had to be made in relation to an injury sustained in his service. He said that he had been vaguely aware of such rights whilst serving in the Regular Army but was not aware of any such rights in relation to Reserve service. Also, he could not recall any medical examination being conducted by the Army at the time of his discharge in 1981.

15. The applicant conceded that there had been some delay between when the RSL advocate had spoken to him about his right to make a claim and the actual lodgement of the claim in November 2000. He said that this was because he had been investigating the process of making the claim.

16. In support of his evidence that he injured his ankle in 1979, the applicant referred to statements made by Mr Begeda (T21) and Mr Hasthorpe (T22) and to a statutory declaration of Mr Simpkins (exhibit 3). Mr Begeda stated:

"I hereby support Mr McCarthy's statement re injury to his right ankle during an army exercise known as Kangaroo 3 at Shoalwater Bay, Central Queensland Coast.

I further state that Mr McCarthy and myself worked for the same employer (Widgee Shire Council now known as Cooloola Shire Council). I was employed as a plant operator and Mr McCarthy as a fitter and turner in the council workshops.

When Mr McCarthy did not return to work at the same time as I did, the workshop foreman asked me when Mr McCarthy was coming back to work. I told the workshop foreman that Mr McCarthy injured his ankle during the army exercise and is to have some time off for his injury."

17. Mr Hasthorpe stated that he had been on exercise Kangaroo 3 in 1979 with the applicant and recalled that he had injured his ankle. He said that he could recall that the applicant was limping "for a couple of days".

18. Mr Simpkins declared that he had been a co-worker of the applicant at the Widgee Shire Council workshop and that he could recall the applicant coming to the workshop on or about 5 November 1979 "with his right ankle heavily strapped." He could also recall being told by the applicant that he had "strained it during the army exercise the week before and that his doctor had given him a week off work."

Medical evidence

19. In evidence before the Tribunal were two reports from Dr Winstanley dated 10 July 2000 (T7) and 31 October 2000 (T 10), respectively. In the latter report, Dr Winstanley noted the history provided by the applicant about the fall in 1979, described this as a "forced inversion type injury" and referred to the applicant as having had a "soft tissue injury to his lateral ligamentous complex some twenty years ago". In the former report, he referred to there being evidence of "mild degenerative change associated with his midtarsal joint area".

20. Dr Winstanley also described another incident where the applicant is said to have been "chasing a car" although, in his evidence, the applicant corrected this and said that he had been chasing a cow, not a car, on his property.

21. Also in evidence were reports, dated 2 November 2000 and 19 April 2001, respectively, from Dr George Springhill, a medical practitioner at the medical centre which the applicant attended on 5 November 1979 (T11). Dr Springhall had not treated the applicant at that time but, having examined patient records, referred to the following notation:

"Injured ankle 1 week ago, swollen, X-ray - NAD (no abnormality detected), strap, ice, elevate."

Applicant's submissions

22. The applicant submitted that the decision under review was wrong because he had not been aware of his right to make a claim for compensation and/or rehabilitation at any time before speaking with an RSL advocate in 2000. Further, he submitted that he had always believed that his complaint of injury at Shoalwater Bay before returning to Gympie would be contained in his army records. Finally, he submitted that the army was at fault in not conducting a medical examination in 1981 when he was discharged from the Army Reserve.

Respondent's case

23. Mr Derrington submitted that, because of the timing of the claimed injury, the transitional provisions of the SRC Act, in particular section 124 thereof, needed to be applied and that this meant that the applicant had to comply with sections 53 and 54 of the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act). He further submitted that these provisions required the applicant to have both given notice of his injury to the Commonwealth and to have made a claim for compensation and rehabilitation in relation to the claimed injury. He argued that the document lodged by the applicant in relation to his injury, apart from its timeliness, may well have constituted a claim under section 54 of the 1971 Act, but that it was not a notice under section 53 of that Act. He conceded that there was Tribunal authority for a single document to satisfy both requirements of notice and claim: Re Simmonds and Commonwealth of Australia (1987) 12 ALD 470; Re Maple and Commonwealth of Australia (1987) 14 ALD 331; and Re Nagy and Australian Postal Commissioner (1988) 15 ALD 136. However, he also referred to a more recent Tribunal decision where it was determined that the notice requirements were not satisfied by the lodging of a claim: Brooks v Comcare [2000] AATA 296. He argued that, in the event that notice was not given in accordance with section 53 of the 1971 Act, the applicant's case must be dismissed.

24. In the event that the document was capable of constituting both notice and claim, Mr Derrington submitted that the relevant time-frames for giving the notice and for making the claim had not been met. He submitted that the notice had to be served on the Commonwealth "as soon as practicable after the occurrence of the injury" in accordance with section 53 of the 1971 Act; and that the claim had to be served on the Commissioner within the prescribed period of six months from the date of the injury in accordance with section 54 of the 1971 Act. He referred to the delay between the date of alleged injury in 1979 and the date of lodgement of the claim as being substantially outside of those limits.

25. Mr Derrington also referred to the ameliorating components of sub-sections 53(4) and 54(6) of the 1971 Act which, when satisfied, enable a notice or a claim, respectively, to be deemed to have been made within the relevant time-frames. He submitted that, in accordance with those provisions, the Commonwealth would suffer prejudice if the notice and/or the claim were deemed to have been sufficient. He also noted that, under those provisions, and separate from considerations of prejudice to the Commonwealth, the benefit of the ameliorating provision would extend to the applicant if the failure to meet the statutory time-frames was due to his ignorance.

26. On the matter of prejudice, Mr Derrington submitted that this would arise both presumptively and actually. As to presumptive prejudice, he argued that it would be oppressive to allow claims to be made long after the passing of the circumstances which gave rise to them, and cited Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. As to actual prejudice, he argued that it would be impossible for the Commonwealth to ascertain what evidence is available in relation to the alleged injury and who would be able to give such evidence and that it would amount to an abuse to require a person to swear an oath as to his/her recollection of events which occurred some 20 years earlier. Further prejudice identified by the respondent was the loss of opportunity by the Commonwealth to have the applicant medically examined in a timely manner and therefore to assess the relationship between the present symptoms of the applicant and the claimed cause of those symptoms.

27. In relation to any reliance on a state of ignorance by the applicant concerning the giving of notice or the making of a claim, Mr Derrington submitted that the relevant time at which such ignorance must have existed is within the period which constituted the relevant statutory time-frames as provided for in sections 53 and 54 of the 1971 Act.

Issues for Determination

28. In this matter, issues for the Tribunal to determine are whether the applicant sustained an injury; when any such injury was sustained; whether appropriate notice of any such injury was given by the applicant; and whether a claim was made by him in relation to such injury. In the event that such notice and claim were made, the Tribunal must determine whether they were made in accordance with the statutory time-frames and, if not, whether they may be deemed to have been so made. It is not material to the Tribunal's decision that it make findings on the nature and extent of the injury or of the circumstances in which any such injury occurred because, in the event that the Tribunal decides that the claim should be dealt with by the Commonwealth under the SRC Act, those issues will be determined at a primary level.

Discussion of Evidence and Findings on Material Facts

29. The applicant served in Army Reserves from 5 December 1978 until 29 June 1981.

30. The applicant has asserted that he injured his right ankle in October 1979 and this is supported by the contemporaneous clinical notes referred to in the evidence of Dr Springhall. The fact of and the timing in October 1979 of a right ankle injury is also supported by the evidence of Mr Begeda, Mr Hasthorpe and Mr Simpkins. In that situation, the Tribunal finds that the applicant did experience a right ankle injury in October 1979.

31. The applicant completed a form headed "Claim for Rehabilitation and Compensation" on 25 October 2000 and subsequently lodged this form with the Department of Veterans' Affairs. In that form, the applicant described the injury as a "roll outwards injury to the right ankle", indicated that it occurred on 28 October 1979 at the Shoalwater Bay training area, advised that he first had medical treatment on 5 November 1979 and stated that his injury was witnessed by Sgt D Begeda, whose contact phone number he gave.

32. The Tribunal accepts the correctness of the applicant's evidence in relation to whether or not he was aware of his rights concerning the making of a claim against the Commonwealth in relation to an injury that occurred during his Army Reserve Service. In that regard, it finds that the applicant did not become aware that he could claim for compensation and/or rehabilitation until he spoke with a Nanango RSL sub-branch member at some time after he consulted Dr Winstanley on 6 July 2000.

Legislative Framework

33. The SRC Act makes provision for compensation in relation to work-related injuries to be paid to nominated classes of employees, including those serving in the Australian Army Reserve, where the injury occurred after the commencement date of the SRC Act. This was on 1 December 1988. The Act also contains transitional provisions which pertain to injuries that occurred prior to that date. In that regard, section 124 of the SRC Act reads:

"124 Application of Act to pre-existing injuries

(1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.

(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.

(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:

(a)where the injury, loss or damage was suffered before the commencement of the 1930 Act--under the 1912 Act;

(b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act--under the 1930 Act as in force when the injury, loss or damage was suffered; or

(c) in any other case--under the 1971 Act as in force when the injury, loss or damage was suffered."

34. The applicant sustained an injury in 1979 at a time when the 1971 Act was in force. Accordingly, reference must be made to the procedures in the 1971 Act for the process of making a claim. Paragraph 53(1)(a) of the 1971 Act requires that a notice of an injury be made in writing as soon as practicable after the occurrence of the injury. Sub-section 53(4) of the 1971 Act enables a notice which does not comply with the time-frame in paragraph 53(1)(a) of the 1971 Act to be deemed to have done so. In so far as relevant, section 53 of the 1971 Act reads:

"53. (1) This Act does not apply in relation to an injury caused to an employee unless notice in writing of the injury was served, as prescribed, on the Commonwealth-

(a) as soon as practicable after the occurrence of the injury;

......

(4) Where-

(a) a notice purporting to be a notice referred to in a preceding sub-section of this section has been served on the Commonwealth;

(b) the notice, as regards the time of service or otherwise, failed to comply with the requirements of that sub-section; and

(c) the Commonwealth would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause, the notice shall be deemed to have been served in accordance with that sub-section.

35. Sub-regulation 15(1) of the Compensation (Commonwealth Government Employees) Regulations 1971 provides for the requirements of the notice. It reads:

"15. (1) The notice of an injury caused to an employee that is required to be served in pursuance of sub-section (1) of section 53 of the Act shall state-

(a) the name, and the address of the place of residence, of the employee;

(b) the place at which, the date on which and time at which the injury occurred;

(c) the circumstances in which the injury occurred; and

(d) whether any persons other than the employee were present when the injury occurred and, if known to the person serving the notice, the names, and the addresses of the places of residence, of those persons."

36. Sub-sections 54(1) and (2) of the 1971 Act require that a claim be served within a stated time-frame of six months of the injury. Again, the provision enables a claim which does not comply with that time-frame to be deemed to have done so. In so far as relevant, section 54 of the 1971 Act reads:

"54. (1) Compensation in relation to an employee is not payable under this Act to a person unless a claim in writing for the compensation was served, as prescribed, on the Commissioner by or on behalf of the person within the prescribed period.

(2) If the claimant is the employee, the prescribed period for the purposes of the last preceding sub-section is-

(a) in the case of a claim in relation to an injury to the claimant-

(i) the period of six months commencing on the day of the injury;

......

(6) Where-

(a) a claim purporting to be a claim referred to in sub-section (1) of this section has been served on the Commissioner;

(b) the claim, as regards the time or manner of service, failed to comply with the requirements of that sub-section; and

(c) the Commonwealth would not, by reason of the failure, be prejudiced if the claim were treated as a sufficient claim, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause, the claim shall be deemed to have been served in accordance with that sub-section."

Application of law

37. In this case, the applicant has not, separately, given notice or made a claim. He cannot succeed unless the document lodged on 7 November 2000 can be treated as both notice and claim. As noted above, Mr Derrington has identified Tribunal authorities which have resolved that the one document can serve both purposes: Re Simmonds and Commonwealth of Australia (1987) 12 ALD 470; Re Maple and Commonwealth of Australia (1987) 14 ALD 331; and Re Nagy and Australian Postal Commissioner (1988) 15 ALD 136. He also identified another, more recent, Tribunal authority which decided that the notice requirements were not satisfied by the lodging of a claim: Brooks v Comcare [2000] AATA 296. The matter was dealt with in the Federal Court in Comcare v Luck (1999) 29 AAR 403 in the context of sub-section 53(3) of the SRC Act which is not materially different, for present purposes, from sub-section 53(4) of the 1971 Act. French J said:

"The question really then reduces to one of construction, namely whether the claim made under s 54 of the Act can also be characterised as 'a notice purporting to be a notice referred to in [s 53]' for the purposes of s 53(3). In my opinion no narrow or technical construction should be adopted. (at 417)"

38. There, His Honour noted that that Tribunal had determined that the Commonwealth would not be prejudiced by the extension of time. However, issues of prejudice will arise only after a decision is made about the status of the document as constituting a notice and claim or only a claim. As His Honour indicated, that is a matter of the construction of the statute and it was determined in that case that the claim form itself could stand as notice of the injury. The same result was reached by the Tribunal in Buttfield v Comcare [2001] AATA 335 which, as here, was concerned with the provisions in the 1971 Act.

39. In Buttfield v Comcare, the Tribunal noted that Comcare v Luck was concerned with the provisions of the SRC Act and expressed the opinion that these are largely similar to those of the 1971 Act and that "it would be strange if a different principle were to apply". I agree with that analysis of the construction to be applied to sections 53 and 54 of the 1971 Act. In so doing, I note the position adopted by the High Court in Johnston v The Commonwealth (1982) 150 CLR 331 (at 342, 343) that workers' compensation legislation is of a remedial nature and should be construed liberally. The same point was made by Fullagar J in his dissenting judgment in Wilson v Wilson's Tile Works Proprietary Limited (1960) 104 CLR 328 at 335, when His Honour referred to "the established principle that, where two constructions of a Workers' Compensation Act are possible that which is favourable to the worker should be preferred." See also Brennan v Comcare (1994) 50 FCR 555 at 559 and Repatriation Commission v Hawkins (1993) 117 ALR 225 at 231.

40. In this case, the requirements for a notice, as set out in sub-regulation 15(1) of the Compensation (Commonwealth Government Employees) Regulations 1971 (see paragraph 35 above) are met by the information contained in the claim form (see paragraph 31 above) and the Tribunal is reasonably satisfied that the claim form lodged on 7 November 2000 constitutes both a notice and a claim under sections 53 and 54 of the 1971 Act, respectively.

41. Nevertheless, where notice is given after a delay of more than 20 years, it can not be said that it was given "as soon as practicable" for the purposes of paragraph 53(1)(a) of the 1971 Act. Also, that 20 year period significantly exceeds the six month period referred to in sub-section 54(2) of the 1971 Act. It follows that the notice was given and the claim was made outside of the relevant time-frames in that Act.

42. Accordingly, consideration must be given to the ameliorating provisions of the 1971 Act. Pursuant to paragraphs 53(4)(c) and 54(6)(c) of that Act, the notice and claim will be deemed to have been appropriately served if any one of the nominated grounds is satisfied. These include:

* an absence of prejudice to the Commonwealth if the notice or claim was considered to be sufficient; or

* the failure to comply with the time-frames was due to ignorance of the applicant.

43. Mr Derrington submitted that there would be prejudice to the Commonwealth if the matter was allowed to proceed. There is some merit in that submission and, in that regard, the Tribunal notes the apparent inability of the only "eye witness", Mr Landroth, to recall the event: see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 548. Nevertheless, there is other evidence in relation to the alleged incident on which a primary decision maker may place reliance. The case of Brisbane South Regional Health Authority v Taylor was concerned with section 31 of the Limitations of Action Act 1971 (Qld) which provided that, if certain preconditions were met, a court "may" order a period of extension of time to commence proceedings. The High Court held that the provision gave a discretion to the court and that, as a general rule, this would not be exercised where prejudice to a defendant was proven. However, the terms of paragraphs 53(4)(c) and 54(6)(c) of the 1971 Act are stated in terms different from those in the Queensland Limitations of Action Act. In the 1971 Act, prejudice is an alternative to the other grounds, including ignorance on an applicant's part. Also, the provisions of the 1971 Act make it clear that the issue is not one for the exercise of discretion in that, if a ground is established, the notice or the claim "shall be deemed" to have been served appropriately.

44. The reference to ignorance is to that state of mind in the statutory time-frame given in the provisions: see re Willis and Australian Telecommunications Commission and Commonwealth of Australia (1989) 19 ALD 665 at 672 and Murray v Baxter (1914) 18 CLR 622 at 633. That is a period of six months after the injury for the purposes of section 54 of the 1971 Act. For section 53 of that Act, no specific time period is nominated as the notice was to be given "as soon as practicable". That implies a period of varying length but one no longer than the six months within which the claim was to be lodged. Therefore, the applicant's ignorance must have been manifest throughout the six months period after 28 October 1979.

45. On the question of what constitutes ignorance, Northrop and Ryan JJ in Commonwealth of Australia v Connors (1989) 86 ALR 247 referred to "not know[ing] of his right to make a claim for compensation" and to not knowing "of the requirements of giving notice within the times prescribed...." (at 252). Also, there must be a nexus between the lack of knowledge and the relevant failure. Barwick CJ, in GC Singleton & Co Pty Ltd v Lean (Seymour) (1969) 43 ALJR 369 (at 371) said:

"The ignorance must have occasioned the failure to proceed within the time fixed by the Act. This circumstance itself reflects upon the nature of the relevant ignorance. Ignorance of the existence of the Act or of the right to compensation which it gives or in particular of its requirements as to the commencement of proceedings for compensation would be relevant ignorance."

46. The Tribunal accepts the applicant's evidence that he was unaware of his right to make a claim for compensation and/or rehabilitation or that he was required to give notice of the injury to the Commonwealth within the time frames provided for under the 1971 Act which comprised the period of six months after 28 October 1979. This means that his situation comes within the terms of paragraphs 53(4)(c) and 54(6)(c) of the 1971 Act and that notice of the injury and the claim for the injury are deemed to have been made within the relevant time-frames.

Decision

47. The Tribunal:

1. sets aside the decision under review; and

2. remits the matter to the Respondent with the direction that the Applicant's claim for compensation for right ankle injury meets the requirements of sections 53 and 54 of the Compensation (Commonwealth Government Employees) Act 1971 regarding notice and claim and is to be admitted for consideration under the Safety, Rehabilitation and Compensation Act 1988; and

3. orders the Respondent to pay the Applicant's costs of these proceedings in accordance with the Tribunal's General Practice Direction.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member

Signed: .....................................................................................

Associate

Date of Hearing 17 December 2001

Date of Decision 10 January 2002

For the Applicant In person

Counsel for the Respondent Mr R Derrington

Solicitor for the Respondent Blake Dawson Waldron