Blunden and Comcare [2003] AATA 957 (26 September 2003)

Last Updated: 26 September 2003

DECISION AND REASONS FOR DECISION [2003] AATA 957

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/590

GENERAL ADMINISTRATIVE DIVISION	)
	Re	JOHN BLUNDEN

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Mr RG Kenny, Member

Date 26 September 2003

Place Brisbane

Decision

The Tribunal affirms the decision under review.

(Sgd) RG Kenny

Member

CATCHWORDS

WORKERS COMPENSATION - alleged injury or disease occurring prior to commencement of Safety, Rehabilitation and Compensation Act 1988 - Transitional provisions - whether notice of injury given as soon as practicable under Commonwealth Employees' Compensation Act 1930 - whether Commonwealth prejudiced by want of notice - whether want of defect of notice due to mistake or other reasonable cause - failure to make claim within specified period - whether failure to make claim due to mistake or other reasonable cause

Commonwealth Employees' Compensation Act 1930 ss 9, 16

Safety, Rehabilitation and Compensation Act 1988 s 124

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

Telstra Corporation v Roycroft [1997] FCA 774

REASONS FOR DECISION

26 September 2003

Mr RG Kenny, Member

BACKGROUND

1. On 9 May 2001, John Blunden (the applicant) lodged a "Claim for Rehabilitation and Compensation" to which he attached various medical reports pertaining to his service in the Royal Australian Navy and a medical report, dated 23 April 2001, from Dr Diana Lange, Psychiatrist, in which she described him as suffering from paranoid schizophrenia. It was the applicant's contention that the condition had developed as a result of aspects of his service in the Navy.

2. On 13 February 2002, a delegate with the Military Compensation and Rehabilitation Service determined that the claim should be disallowed and, on 28 May 2002, another delegate affirmed that decision.

3. On 9 July 2002, the applicant sought review of that decision 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 R Hume 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 T26);

Exhibit 2 - a medical report, dated 17 October 2002, from Dr D Lange;

Exhibit 3 - a statement, dated 4 October 2002, by the applicant;

Exhibit 4 - a statement, dated 29 October 2002, from Mr R Hume;

Exhibit 5 - documents relating to the applicant's service with the Royal Australian Navy;

Exhibit 6 - an affidavit, dated 28 October 2002, by Paul Ontong, Director of Appeals with the Military Compensation and Rehabilitation Service;

Exhibit 7 - a Confidential Daily Medical Record, dated 16 April 1964, relating to the applicant;

Exhibit 8 - an affidavit, dated 8 September 2003, by Peter Crethary, Solicitor;

Exhibit 9 - Reports of Proceedings relating to HMAS Moresby; and

Exhibit 10 - a statement of the movements of HMAS Moresby and HMAS Paluma.

ISSUES AND LEGISLATION

6. The Safety, Rehabilitation and Compensation Act 1988 (the 1988 Act) makes provision for compensation to be paid by the Commonwealth in relation to work-related injuries or diseases for nominated classes of Commonwealth employees, including those who served in the Royal Australian Navy, where the injury occurred after the commencement date of the 1988 Act. This was 1 December 1988.

7. The Act also contains transitional provisions which pertain to injuries that occurred prior to that date. In that regard, section 124 of the 1988 Act, insofar as relevant, reads:

"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 1971Act - 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.

...

(10) Where:

(a) proceedings for the recovery of compensation under the 1912 Act, in respect of any injury suffered before the commencement of the 1930 Act, were not maintainable by a person because of section 5 of the 1912 Act;

(b) a claim for compensation by a person under the 1930 Act, in respect of an injury suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act, was not admissible because of section 16 of the 1930 Act; or

(c) a claim for compensation by a person under the 1971 Act, in respect of an injury suffered after the commencement of the 1971 Act but before 1 July 1986, was not admissible because of section 54 of the 1971 Act, as that section was in force before 1 July 1986;

that person is not entitled to compensation under this Act in respect of that injury."

8. The 1930 Act, as referred to in that provision, is the Commonwealth Employees' Compensation Act 1930 (the 1930 Act). The applicant claimed that his psychiatric condition developed during his service which extended from 20 February 1964 until 30 March 1970. That period is embraced by the 1930 Act. Under section 9 of the 1930 Act, the injury must have arisen out of or occurred in the course of employment with the Commonwealth. However, a time-frame for giving notice of and for making claim for the injury was set down in sub-section 16(1) of the 1930 Act which reads:

"The Commissioner shall not admit a claim for compensation under this Act for an injury unless notice of the accident has been served upon him as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth and unless the claim for compensation has been made -

(a) within six months from the occurrence of the accident; or

(b) in case of death - within six months after advice of the death has been received by the claimant:

Provided always that -

(i) the want of or any defect or inaccuracy in the notice shall not prevent consideration of the claim by the Commissioner if he finds that the Commonwealth is not prejudiced by the want, defect or inaccuracy, or that the want, defect or inaccuracy was occasioned by mistake, absence from Australia or other reasonable cause; and

(ii) the failure to make a claim within the period above specified shall not prevent consideration of the claim by the Commissioner if he finds that the failure was occasioned by mistake, absence from Australia or other reasonable cause."

9. The issue for the Tribunal is whether the circumstances of the applicant meet the requirements of that provision. In the event that this provision is not satisfied, the applicant's claim will not be considered under the Commonwealth compensation legislation.

APPLICANT'S EVIDENCE

10. In his statement (Exhibit 3), the applicant said:

"1. I am the applicant in these proceedings.

2. I served in the Royal Australian Navy from 20 February, 1964 until I was discharged on 30 March, 1970. I was discharged from HMAS Penguin in Sydney.

3. Prior to my discharge I was not given any information about any entitlements for which I may be eligible through the Department of Veterans' Affairs or any entitlements to compensation for which I may have been eligible through Comcare. During my Naval Service, I had been a contributor to the DFRDB Superannuation Fund. Subsequent to my discharge I received correspondence from ComSuper, the authority that administers the DFRDB Scheme informing me that I was entitled to a pension due [to] the fact that I was discharged from the Navy for medical reasons.

4. I initially supported myself from accumulated savings until I obtained employment. I obtained this employment through the local Commonwealth Employment Service. It was about three months after my discharge when I found full time employment. Initially I had returned to Rockhampton which is my hometown but I then decided to return to Sydney because I believed that there were better employment prospects there. I also had wished to complete my technical training that I had commenced whilst still in the Navy. This course was at the Sydney Technical College at Ultimo in Survey Drafting. I had completed half of this 4 year course at the time of my discharge. I was able to do this by attending evening classes on a part time basis.

5. Initially after my discharge, I lived at Neutral Bay in Sydney and worked for the Mosman Council doing general duties including clerical work, some drafting and any other task that was allotted to me. It was a full time job and I worked there for about 12 months.

6. I recall that it was about 1973 that I was required to attend a medical assessment by Comsuper. I recall that I had to attend annually for a medical check-up to assess my continuing eligibility for the Comsuper pension. This required me to attend medical specialists or Commonwealth medical officers from time to time or as directed. I was always given the impression that Comsuper was keen to terminate my DFRDB pension. It was my understanding and belief at that time that this pension was the only one for which I was eligible. As I have said earlier in this statement, at no time prior to my discharge, at the time of my discharge or subsequently did anyone in a position of authority either in the Navy or Comsuper or the Department of Veterans' Affairs gave me any information as to my entitlements. I understand now that the Service provides seminars and other information avenues for dischargees so that they have this information immediately available to them. That was not the case in 1970 or if it was I was never informed of the availability of this information. At that time I was not a member of the RSL and had no contact with them.

7. I recall being interviewed by a Commonwealth Medical Officer in Brisbane in about 1973. I was living back in Brisbane. I recall asking whether I was entitled to any compensation as a result of my being discharged from the Navy due to being physically unfit for Naval service and he told me that if I received any compensation I would lose my DFRDB pension. I have a very clear recollection of this conversation. He also said that if my medical condition deteriorated, I would lose the benefit of the pension and he inferred that given my medical condition I was better off remaining on the pension. He made it clear to me that it was an `either/or' situation. I accepted the advice of this Doctor as I had no reason to think that he could have been wrong. He was quite emphatic in giving me this advice.

8. I left my employment with the Mosman Council due to the recurrence of my psychiatric condition, that is, paranoid schizophrenia. I experienced a number of psychotic episodes which made it difficult for me to function normally and in particular to concentrate. I recall I spent about 3 or 4 months as an inpatient at the West Ryde Psychiatric Hospital.

9. I subsequently found employment with the Willougby Council being employed as an offsider to a surveyor. I worked there for 12 months until once again my psychiatric condition became symptomatic and I had to resign. It was during this period that I returned to Queensland and I had the personal conversation with the Commonwealth Medical Officer as described above. My motivation for returning to Queensland was because of the free hospital system as I could not afford the medical expenses for my treatment in New South Wales. I moved to Brisbane where I purchased a very modest home in Petrie. My health deteriorated significantly and I went through four or five different jobs in a period of 2 years. I recall one was driving a bus and another working as a surveyor's assistant. All of these jobs were lost because of deterioration in my mental state. During this period I was very socially isolated having no close friends or family to support me during my illness. I was unwell (psychiatrically) for significant periods of time during this period. I was treated by Dr Hollingsworth at the Prince Charles Hospital (mental unit).

10. I lived in my residence at Dayboro Road, Petrie for 17 years except for when I was hospitalised.

11. About 2 years ago I decided to approach the Welfare Officer at the Pine Rivers Branch of the RSL. I had sometime earlier joined the services club and was informed that the RSL may be able to assist me. I received advice from Mr Mark Raison who is an RSL Advocate. Prior to doing this I had actually approached Centrelink to ascertain my eligibility for an invalid pension. I had thought that perhaps the invalid pension would be preferable to receiving the DFRDB pension because it included free medical treatment. I subsequently commenced to receive a part disability pension which did cover my basic medical treatment.

12. Mr Raison advised me that I may have an entitlement to compensation under the Comcare scheme. As a result of that advice and with Mr Raison's assistance, I lodged the claim which is now the subject of this application."

11. In his oral evidence, the applicant said that he had worked with a building inspector for the Mackay City Council for some six months before he joined the Navy.

12. The applicant identified a copy of a certificate of his service with the Royal Australian Navy (Exhibit 5) in which reference is made to the shore bases and vessels on which he served. He also identified the following additional notations which he said he had included in his own writing. They are entries under the heading:

"Wounds receiving in Action and Hurt Certificates Granted; also any Meritorious Service, Special Recommendations, Prize, or other Grants; Temporary Advancements to Local (acting) Ratings, with inclusive dates.

* To be awarded the Distinguish Service Medal (2^nd Class)

* Granted four year very good Conduct Badge

* Acted at the Hydrographic School as a higher Rating as a Leading Seaman and on times as a Petty Officer"

13. The applicant also agreed that he had included the following comments on his service record:

"Recommended for Accelerated promotion.

The Hours were long and arduous - working in small Boats in all types of weather - living in cramped conditions. This man might have been a Naval Officer."

14. The applicant said that he had served on HMAS Moresby from 19 March 1965 until 6 August 1965 and from 6 December 1965 until 21 December 1967. He said that he had served on HMAS Paluma from 7 July 1969 until 15 September 1969.

15. The applicant said that he had been a seaman survey recorder and that his task was that of assisting a surveyor in survey work and in the use of a theodolite. He said that this was conducted in very remote places in Papua New Guinea and on the north-west coast of Western Australia. He described the conditions in which he worked as being rugged with a typical day being of ten hours work and one where there was also the requirement of completing a four hour watch at night. He said that, unlike the remainder of the naval service, those in survey work were required to be both watch-keepers and day workers. He said that he enjoyed the life and was very dedicated because of his patriotic feelings towards his country. He said that the work was as difficult as that which faced sub-mariners and that the frequency of leaving the survey service was about the same as that of sub-mariners.

16. During his evidence, the applicant was shown a statement from his Counsel, Mr Hume (Exhibit 4), the contents of which he adopted as being correct with one possible amendment. This was a reference to HMAS Melbourne in paragraph 8 of that statement. He said that he was not sure of the identity of the vessel in question. That statement reads:

"1. This material was gleaned from the applicant during a conference with Bob Hume, Barrister and Terry O'Connor, Solicitor on Tuesday, 29 October 2002.

2. The Applicant served on HMAS MORESBY for three years. He will find his `Service Certificate' at home and fax it through ASAP. That will confirm the exact dates of his posting to the ship. All the incidents can then be checked against the Ships programme, held in Naval Archives, for this three year period.

3. The Applicant states that during this period he was involved with four incidents of detached service ashore in isolated circumstances. We cannot vouch for the order of these incidents.

4. At Inghram Island off North Queensland he was involved for 3½ months in a `Boats Party'.. Two boats with a crew of 5 taking soundings all day and writing up the data at night. Isolated conditions, excessive workload and sleep depravation (sic).

5. At Cape Levique, north west of WA, a `Tide Pole Camp' for 4 months. Four sailors (1 x Leading seaman Electrician, 1 x AB Electrician, 1 x AB Stoker, and 1 x AB Survey Recorder). He states that discipline had already broken down before the incident with the rifle. He had no real co-operation from the other members of the group with the readings which were required to be taken every ½ hour. He says that he had to do all/most of the readings; leading to sleep deprivation. He says that AB Stoker `Jacko' Porter had his own .22 calibre rifle with him and `went troppo'. Porter locked himself in with the radio so the others could not report events to the ship. He discharged the weapon on a number of occasions in the direction of the others. The applicant states that Porter held him on the ground at gunpoint (to the temple) and urinated on him.

The Applicant says that these incidents were not reported, possibly because of the ineptness of the Leading Seaman who was in charge of the party. He says that he did mention the incident to an officer at a later stage who said it should have been reported. However nothing was done about it. The Applicant believes that Porter was subsequently discharged because of other incidents. He also believes that Porter had `form' from earlier incidents.

6. The Applicant spent 4 weeks on his own at Booby Island, in the Torres Straight recording from two tide poles.

7. With three others at Cananmo in PNG building `trig point stations' where they were referred to as `White Coolies' because they worked harder than the natives.

8. In approx mid 1968 he was involved in taking an `Aircraft Recovery Lighter' from Sydney to Jervis Bay through mountainous seas where the first attempt had been abandoned. He was in both crews, the second, volunteer crew consisted of an Officer (Lieutenant) and one other seaman. He believes that the second crew was `commended' for this feat and that the incident was written up in the Sydney Morning Herald. He says that they came close to death on several occasions. The urgency was caused by the fact that the Aircraft Carrier, HMAS MELBOURNE was to sail for Vietnamese waters the next day and must unload the ditched aircraft before parting.

9. There was also an arduous survey involving vessels from the Hobart Harbour Board, and the Naval Reserve in Hobart, at Tribunna on the east coast of Tasmania. This lasted two months. Again the complaint is of long hours and sleep deprivation.

10. The Applicant states that there were six members of his class from SR School. Four of these had left the RAN before him, he says no doubt due to the conditions of service.

11. The Applicant gives the following list of names of people who he formed some form of friendship with during his service:

CPOSR Dave Waining

LSSR Nossie

ABSR Hank Haining

ABSR Coates (from his class)

CMDR Handstaff RAN, Deputy Hyrodgrapher

LEUT Kelly RN

12. The Applicant states that he was transferred to the Naval Hospital in HMAS PENGUIN from RNS Hospital so that he could be assessed by the Civilian Psych Consultant to the RAN. He was there for about a week he thinks. Within a couple of days he was discharged, put on a plane to Rockhampton with an SBA as `attendant' and delivered to his mother's house. He was given no counselling. He says `months later' a letter arrived saying he had an DFRDB Pension.

13. We submit that when you receive the Applicant's SC and the dates are checked the above incidents can be verified against the Ships logs."

17. The applicant said that he had not received the Distinguish Service Medal but believed that he had been recommended for it but he said that he had received a Good Conduct Badge. He also said that he had served at the level of higher duties whilst in the Navy including those associated with a Petty Officer but he confirmed that this had not been recorded in his documents. He also said that he had not received any payment for the carrying out of these higher duties.

18. The applicant said that he had been hospitalised at the Royal North Shore Hospital and then at Penguin Naval Base. He said that he had been isolated from his fellow sailors during those periods and had no contact with them prior to his discharge. He said that he could recall the procedures that took place at the time of his discharge. He had seen a psychiatrist by the name of McGeorge and he said that he felt that he was being pushed into a corner with no compromise being shown to him and he felt that he could have done more for the Navy. He said he was given no counselling before he was discharged.

19. The applicant said that this mother lived in Rockhampton and was separated from his father. He was flown to Rockhampton in the company of a Sick Bay Attendant and his mother met them at the airport. He said that he was unable to work for some time but eventually returned to New South Wales where he got a job with the Mossman Council and worked for about twelve months. He then required further hospitalisation and decided to return to Queensland where he would not incur hospital expenses. He said that, over the year, he obtained intermittent employment as a bus driver.

20. He said that he recalls seeing a Government Medical Officer in 1973 and that he was advised that he could either have a pension or compensation but that he would not be able to get both these payments. He said that he accepted that advice and thought that he was not able to take the matter any further. Nevertheless, he said that he had written to the Navy on occasions and attempted to get some form of payments but had been unsuccessful. He said that nothing was done until he met with Mr Raison at the Pine Rivers RSL Club.

21. The applicant said that he had had perhaps a hundred hospital admissions since his Navy days and that he was currently in hospital and on leave for the hearing.

22. The applicant also said that he had been to the library and attempted, by looking through microfiche records of the Sydney Morning Herald, to try to find a record of the movements of the lighter in which he encountered the dangerous seas between Jervis Bay and Sydney. However, he said that he had been unsuccessful.

23. In cross-examination, the applicant was referred to his naval medical records and he agreed that the following references were correct:

"13. Mental outlook and personal habits

Has always had responsible attitude to the service with only one way of working - carry on until the job is completed. He normally keeps himself to himself and apart from his quiet manner, always joins in any parties that he goes in.

14. Behaviour in the Ship

Has not been in any trouble whilst in this ship except for his desertion charge. Is always polite and tidy, and friendly in his outlook to everyone he meets.

15. Other relevant information

Was employed in the Hydrographic school drawing visual aids for instructional use. With only a subject heading to start with he would bring out all the background and relevant information required to instruct all standards of trainees passing through the school. Both the drawings and the information gleaned from them was of a high standard, far above that expected of a man of Blunden's rate."

24. He was also referred to the following opinion but said that he did not agree with it:

"16. Opinion as regards retention or disposal

I think he could never advance himself in the power-of-command field and would therefore remain in the junior position of his trade. His quiet and slow manner could become a liability in many operations in addition. I am therefore of the opinion he should be discharged from the service for both the service and his sake."

25. The applicant agreed that he had been in hospital from 11 December 1969 until 2 February 1970 and that, prior to this, he had been absent without leave from the Navy. He said that he was in partial remission when discharged from the hospital. The applicant was referred to other entries in that document with which he agreed. These were that he had suffered a deprived childhood and that he had been an isolated and withdrawn child, adolescent and man. He agreed that the document had indicated that he had made a complete clinical recovery with electro-convulsion therapy but he said that he did not believe he had made a complete recovery.

26. The applicant was referred to his medical statement completed by him at the time of his discharge on 11 February 1970. He agreed that he had completed the following question/answer sequences:

"9. Do you claim to be suffering from any disabilities which you consider to be due to or aggravated by service? If so, record your reasons.

Nervous Disorder.

December 69 - February 70.

Treatment completed at Royal North Shore Hospital. Service Conditions & problems at home.

...

11. Have you made any claim under the Repatriation or C.E.C. Acts and have you been granted any pension or compensation?

If so, record details.

No."

27. When asked by Mr Clark as to what he meant by "problems at home", the applicant said that he had entered into a contract to purchase a house at some time during the 1960s but said that proper searches had not been conducted and he only discovered later that it was in a state of condemnation. He said that his mother had also been involved in the purchase. He denied that this was the reason that he had gone absent without leave.

28. The applicant said that he was not aware of what was meant by compensation or repatriation or what entitlements were available to him. He was advised after he had been home in Rockhampton for about six weeks that he was able to receive a pension and he was unaware that there were any further benefits available to him.

29. Mr Clark referred the applicant to a letter that he wrote on 6 February 2001 in which he stated:

"It is with great difficulty that I speak of the following. At a lonely tidal guage camp, a sailor was to go buzzerk [sic] with a loaded rifle. We were running for cover behind an dd ship's tank. You could hear the bullets richoeing [sic] off the metal. I was over powered and pushed to the ground. He held the barrel to my head and proceeded to urinate over me, including my face. He was shouting over and over `I'll shoot you' or `kill you'. If we'd had not found a key to the door (a disused lighthouse cabin), I believe I would have been killed as I slept.

The Navy knew of this man as he'd been in previous serious trouble.

This incident had happened only months prior to my being invalided out of the Navy."

30. Mr Clark asked the applicant if the time-frame referred to in that letter was correct. The applicant agreed that the incidents at the tidal camp had occurred long before that period that he mentioned. He said that he thought they had occurred around November 1966.

31. The applicant said that when he had returned to Sydney to work for the Mossman City Council, for about twelve months, he was functioning well and he said that he had made "some sort of recovery" from his condition. He agreed that he had been in and out of employment then, for the next few years, worked with the Sydney City Council and then with various Councils in South-East Queensland as a bus driver. He said that, between these periods of work, he suffered recurrences of his psychiatric condition.

32. The applicant said that, after his consultation with the doctor in 1973, he had understood that there were forms of compensation and pension payments but he accepted the information given to him by the Government doctor as having been correct and he did not know that he was able to make a claim for compensation if he were receiving the pension.

33. It was put by Mr Clark to the applicant that he had been aware of his rights to compensation but that, in the event that his condition worsened, he would be able to claim for higher levels of compensation in later years and that, therefore, he had deliberately delayed any claim for compensation for his condition. The applicant denied that this was his situation.

34. The applicant was referred to a letter, dated 24 August 2001, written to the respondent by A S A McLaren, Commander, RAN in relation to information requested by the respondent concerning the applicant's claim for compensation. There, Commander McLaren referred to several previous representations to Navy Office and the Minister for Defence. The applicant agreed that he had made contact with the Naval Board to obtain a higher pension. He said that, because of the higher duties that he had undertaken during his service, he felt that he should have been paid at a level which reflected the amount payable to a Petty Officer rather than to an Able Seaman.

35. The applicant said that he had also contacted a solicitor, Mr Mike Reddy, in about 1988 who had written on his behalf to the Minister for Defence enquiring about his pension arrangements. He said that the purpose of this was, again, to get a more generous pension payment from the Commonwealth. He said that he had explained the conditions of his service to the solicitor and the incidents of trauma which had occurred to him, including all the matters that he had outlined to Mr Hume and adopted in Exhibit 4. He said that he had given Mr Reddy a "full coverage" of his naval activities. However, he said that, during those negotiations with Mr Reddy, he had not been advised of his compensation entitlements.

EVIDENCE OF PAUL ONTONG

36. Mr Ontong, in his affidavit of 28 October 2002 (Exhibit 6), stated:

"1. I am the Director of Appeals and I am duly authorised to swear this affidavit on behalf of the respondent.

2. The delay occasioned by the applicant in lodging a claim for compensation in respect of his alleged condition has prejudiced the Commonwealth. Specifically:

(a) the Commonwealth has been unable to properly investigate the circumstances with respect to the applicant's alleged condition;

(b) the medical records held by the Department of Defence in relation to the Applicant reveal that he was suffering from psychiatric problems, namely schizophrenia, at discharge whereby it was discussed that despite making a complete clinical recovery, the naval life was too stressful for the applicant. The Commonwealth is unable to determine all the evidence that was used by the medical officer at discharge to make his findings, and the Commonwealth has lost the opportunity to speak to the relevant medical officer who completed the discharge medical;

(c) even if the medical officer who examined the applicant at discharge could be located, it is highly unlikely that they would recall any further specific information about the applicant some 32 years later;

(d) the applicant has known of his psychiatric condition for over thirty years. The respondent has not been provided with any medical reports or records dealing with the applicant's condition between the time he left the service in February 1970 until he finally lodged his claim for compensation in early 2001;

(e) there is no mention in the record of service of the applicant working `80 hours plus for weeks at a lonely tidal outpost', with fellow naval officers. It is now virtually impossible for the Commonwealth to locate evidence to corroborate these allegations after the time that has elapsed;

(f) the applicant considers that the events that caused his condition occurred over 32 years ago. It is now virtually impossible for the Commonwealth to find evidence and/or witnesses to corroborate the applicant's evidence in this regard given the time that has elapsed;

(g) even if these individuals could be located, it is unlikely that their recollections of events would be such that they could accurately support the applicant's allegations;

(h) no substantive psychiatric testing was performed on the applicant prior to his admission into the service. Whilst the testing in 1970 upon discharge was more thorough, it is possible that the testing on entry was inadequate to detect any pre-existing psychiatric illness that may have pre-dated entry into the service;

(i) Anne Banning, registrar of psychology in her report observes that the applicant had a deprived childhood with constant friction and repeated separations from his parents. Ms Banning comments that the applicant's pre-morbid personality was that of an isolated withdrawn child and later adolescent and man. Given the time that has elapsed, the Commonwealth has lost the opportunity to speak to individuals that may have corroborated Ms Banning's opinions as to the cause of the applicant's condition and her views with respect to the applicant's mental history;

(j) It seems likely that the applicant's condition is not related to his former military employment. The Commonwealth has lost the opportunity to verify or properly investigate this issue and the circumstances that allegedly gave rise to the applicant's condition given the time that has elapsed."

APPLICANT'S SUBMISSIONS

37. Mr Hume noted the endeavours made by the respondent to investigate the applicant's claims. He referred to the affidavit of Peter Crethary (Exhibit 8) and the documents annexed to it which comprised responses to the respondent from Telstra in relation to attempts to obtain information about the naval personnel identified by the applicant and referred to by Mr Hume in his statement (Exhibit 4). He submitted that the Commonwealth could have done more to investigate the circumstances of the applicant's claim.

38. He referred to the measures that had been adopted by his instructing solicitor in that regard and submitted that these approaches could also have been employed by the respondent who, with its resource advantages, may have been able to obtain further information. He referred to the material that had been obtained by his instructing solicitor from the Australian Archives and the War Museum. He said that the material in Exhibits 9 and 10 had been obtained from those sources and he submitted that these indicated that the applicant had been serving on HMAS Moresby at a time when the vessel had been undertaking survey work in north-west Western Australia at Cape Leviqué in the manner claimed by him. He said this had been in the period from 1 September 1966 until 1 December 1966.

39. Mr Hume submitted that the respondent had been aware of the applicant's psychiatric condition because of his hospitalisation at Royal North Shore Hospital in 1970. He also noted that this had been conceded by the delegate in the decision under review. Therefore, he submitted that the matter for consideration was whether the claim had been lodged within the relevant time-frame. He conceded that this had not been done within the six months provided for in paragraph 16(1)(a) of the 1930 Act but also that the lodgment of the claim subsequently did not prejudice the respondent and was occasioned by reasonable cause.

40. In relation to prejudice, Mr Hume submitted that there was evidence to support the applicant's contentions about the events that occurred at Cape Leviqué.. He submitted that there was evidence that the applicant was serving on HMAS Moresby at a time when the records indicated that the vessel was in the area and carrying out tidal survey work. He submitted that further investigation from available sources would enable further detail to be obtained about the events that occurred at the time.

41. He referred to records kept on all naval vessels by the Coxswain which indicated the movement of all ship's personnel and to the records which record punishments imposed on crew members. He submitted that it was customary for the Royal Australian Navy to maintain these records and he submitted that endeavours by the respondent to locate them would enable it to investigate the applicant's claim.

42. Whilst conceding that the merits of the substantive claim were not central to the matter, Mr Hume, nevertheless, submitted that regard should be had to these and, in particular, because of the nature of the condition from which the applicant suffered. He submitted that schizophrenia was a condition which could be either caused of aggravated from trauma or by such phenomena as sleep deprivation and that the events described by the applicant in relation to his experiences at the tidal camp at Cape Leviqué may well have provided the requisite stimulus for the development of the condition.

43. In that regard, he referred to the medical report of Dr Lange who described the applicant as never being in full remission in respect of his condition and as being affected in his thinking capacities both cognitatively and organisationally. He also noted that Dr Lange had expressed the opinion that there was occupational contribution to the development of his psychiatric state because of his naval service.

44. Mr Hume referred to the inclusions made by the applicant on his service certificate and submitted that this was not done in order deliberately to mislead but rather to reflect what he believed had occurred to him and was justified by his service. He referred to the entry made by the applicant in relation to a Good Conduct Badge and submitted that such a Badge had actually been awarded to him on 6 March 1968. Mr Hume referred generally to the highly satisfactory nature of the applicant's service until things went wrong for him in 1969. He said there was no suggestion in the records that he was an inferior sailor and there was no material in the documents to indicate why it was that he went absent without leave. He submitted that the logical explanation for his decision was his psychiatric state at the time.

45. Mr Hume referred to the rather unusual claims that the applicant had made in respect of various events that he claimed had occurred to him during his naval service but submitted that these were characteristic of the delusional thinking that he had as a result of his schizophrenic condition.

46. Mr Hume submitted that, when the applicant left the Navy, he was provided with no counselling or advice about the prospects of claiming compensation and he submitted that this was not an uncommon thing in the era during which the applicant was serving. He referred to the statement made by the applicant at the time of his discharge where reference is made to the Repatriation or CEC Acts and to the concept of compensation. He noted that the witness to the applicant's signature on that document was a WRAN Sick Bay Attendant and submitted that such a person would not be in a position to provide meaningful guidance on issues relating to compensation.

47. He referred to the isolation that the applicant was placed in in relation to his colleagues and to the manner in which he was taken to his home without the prospect of seeing them. He submitted that this would have contributed to his lack of information concerning issues of compensation.

48. Mr Hume referred to attempts by the applicant to seek higher pension payments from the Navy directly and through a solicitor in the 1980s but submitted that this did not constitute knowledge or awareness of compensation rights but, rather, attempts by the applicant to get justification for what he believed to have been performance by him of higher duties during his naval service. He submitted that the first occasion when the applicant became aware of his right to compensation was when he saw Mr Raison at the RSL and this led to his making the present claim.

49. Mr Hume also submitted that the nature of the applicant's illness was, in itself, an explanation for not making a compensation claim. Again, he referred to the evidence of Dr Lange and to the frequent recurrences of the condition despite periods of time in the interim where he was able to function in a normal manner.

50. It was also submitted that the applicant had been misled and was therefore mistaken about his compensation rights because of information provided to him by a Government Medical Officer in the 1970s. As a result of that, the applicant had believed that he would be better off on his ComSuper pension and that this would have been placed in jeopardy if he sought further compensation from the Navy.

RESPONDENT'S SUBMISSION

51. Mr Clark submitted that section 16 of the 1930 Act required both a notice to be given to the respondent and for a claim to be lodged within the relevant time-frame and he submitted that the mere hospitalisation of the applicant in 1970 in a Naval Hospital did not constitute the giving of notice to the respondent. He also submitted that the respondent would be prejudiced if it were required to consider the claim, that there was no mistake made by the applicant and that there was no reasonable cause for the lateness of the notice or the making of the claim.

52. Mr Clark also submitted that, in issues which relate to section 16 of the 1930 Act, there was no justification for considering the merits of the substantive application itself.

53. In relation to prejudice, Mr Clark relied upon the evidence of Mr Ontong and to the long time-frame involved between the applicant's naval service, when he had the first presentation of the symptoms of schizophrenia, and the lodgment of his claim. He also referred to the unsuccessful attempts to locate the men who served with the applicant and whose names were given by him. In any event, he submitted that, even if it were possible to track down these individuals, the length of time would cast doubt on their capacity to have reasonable recall of the events that occurred so long ago.

54. Moreover, he submitted that much had occurred to the applicant in those years which would also cast doubt on his capacity to fully recall the events in a meaningful way. In particular, he referred to the reference by the applicant in his letter of 6 February 2001 to the events which occurred to him only months prior to his being invalided out of the Navy. The events referred to were those which were related to his service at Cape Leviqué and he submitted that the only evidence in respect of that location was some three years earlier than this.

55. Mr Clark also submitted that the opinion expressed by Dr Lange as to the capacity of occupational factors to contribute to the development of schizophrenia was one that was not without some dispute in the field of psychiatry.

56. Mr Clark referred to the many references in the documents to delusional thinking by the applicant and to the difficulties that this would pose for the respondent in any thorough investigation of his claim. These included references to his having been in service in Vietnam and having been exposed to gamma rays while serving on a destroyer and to having been the recipient of a Distinguished Service Order. While conceding these delusional thought processes were part of the psychiatric condition of schizophrenia, he submitted that the presence of those phenomena over so many years would prejudice the respondent's capacity to investigate the claim.

57. Mr Clark submitted that the applicant was provided with some information concerning compensation at the time of his discharge and he referred to the applicant's signing of his discharge medical form. He also submitted that, at the time when the applicant completed that document, the evidence was that he had made a complete clinical recovery and was back to his previous level of functioning. For that reason, the applicant would have had insight into his situation and was able to include on the discharge medical form the reference to his nervous disorder and was able to place a time-frame on it, ie from December 1969 to February 1970.

58. Mr Clark also submitted that the reference to that time-frame did not extend back to the period when the applicant was at Cape Leviqué on HMAS Moresby.

59. Mr Clark also submitted that, whilst the applicant had recurrent delusional periods in his post-service years, there were many occasions when he clearly manifested a capacity to carry on a normal working life and did so both in Sydney and the Brisbane area. He submitted that, in relation to his period in Sydney, this occurred shortly after his discharge and, again, reflected the fact that at that time he had returned quite quickly to a normal level of functioning.

60. Mr Clark also referred to the occasions when the applicant contacted the Navy individually and through his solicitor and submitted that, at that time, he must have had some understanding of compensation processes. He submitted that the underlying rationale for the applicant's failure to make an earlier claim was a belief that, in the event that his condition worsened, he would be able to gain greater compensation payments with a subsequent claim. He submitted that there was no mistake in what the applicant did and that there was no reasonable cause for his delay.

61. Mr Clark also referred to the applicant's tampering with his Service Certificate and, whilst conceding there may have been an innocent purpose behind this, submitted that it demonstrated a level of thinking by the applicant about his relationship with the Navy.

62. Moreover, Mr Clark submitted that, despite the serious endeavours of the applicant, no skerrick of evidence had been obtained to support the contentions that the applicant made concerning the events that occurred at Cape Leviqué or in relation to the other incident of trauma, ie the incident involving the voyage on a lighter between Jervis Bay and Sydney.

CONSIDERATION

63. Sub-section 16(1) of the 1930 Act requires, first, that notice of an accident be given as soon as practicable after it has happened and before the employee voluntarily left the employment of the Commonwealth and, secondly, for a claim for compensation to be made within six months of the occurrence of the accident. It was submitted by Mr Hume that the fact of admission of the applicant to the Naval Hospital would be sufficient to constitute notice of injury.

64. The requirements in relation to the notice are set out in sub-sections 16(2) and (3) of the 1930 Act and they require particulars of the person to be included in the notice as well as particulars, in ordinary language, of the cause of the injury and the time when it happened. The evident purpose of that provision is to ensure that, not only is the respondent made aware of the fact of the injury, but also of the background to it so that some investigations might be undertaken.

65. In this case, the hospital records from the Royal Australian Naval Hospital at Penguin refer to the history of treatment at Royal North Shore Hospital and to the presentation of symptoms in the applicant and to the diagnosis of a schizo-affective disorder but no reference is made to any incidents in the Navy service which may have precipitated the condition. In that situation, I am satisfied that the entries in the Naval Hospital records do not constitute notice for the purposes of section 16 of the 1930 Act: see, also, Re Muras and Department of Defence (1988) 52 ALD 579 at 582.

66. In Re Siemsen and Comcare (1999) AATA 871, the Tribunal held that an entry in service medical records could constitute notice of an injury under the 1930 Act but, there, the Tribunal found that the records disclosed the information required by sub-section 16(2) of the 1930 Act. That is not the situation with the applicant in this case. It follows that, therefore, notice was not given to the respondent during the applicant's service and it is not disputed that no other form of notice was provided until the claim for rehabilitation or compensation was lodged in 2001. I am satisfied that this claim constitutes both a notice and a claim for the purposes of section 16 of the 1930 Act: see Comcare v Luck (1999) 29 AAR 403 at 417, Re Buttfield and Comcare [2001] AATA 335 and Re McCarthy and Comcare [2002] AATA 5.

67. Clearly, the lodgement of that document was outside of the time-frame referred to sub-section 16(1) of the 1930 Act. Nonetheless, that, alone, does not preclude a consideration of the claim under that provision. It may still be considered if the want of timely notice does not prejudice the respondent or was occasioned by mistake, absence from Australia or other reasonable cause and if the failure to make a claim within the relevant period was due to mistake, absence from Australia or other reasonable cause.

68. In relation to the issue of prejudice to the respondent, I note the decision of the Tribunal in Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534 where, at 535, the following reference is made to the purpose of the notice requirement as it appears in sub-section 53(1) of the 1988 Act which is not materially different from the provision under consideration in the 1930 Act:

"Section 53 is clearly intended to protect the Commonwealth and its instrumentalities from being placed in a situation where they are unable to disprove an employee's assertion of an injury alleged to have occurred on some specific occasion in the course of the employee's work or of a disease contracted because of some brief and transient situation. Some such provision is clearly needed to prevent abuse of the Act."

69. The statement by Mr Ontong refers to the difficulties associated with attempting to investigate a matter which occurred more than thirty years ago. I have noted the contention of Mr Hume that the Commonwealth has not used its best endeavours to attempt to investigate naval records. However, I also note that the material gleaned by the applicant and Mr Hume's instructing solicitor had done little more than provide evidence that the applicant was serving on HMAS Moresby at a time when the vessel was at Cape Leviqué.. There is nothing which points to the events described by the applicant concerning the particular incidents that he claims occurred there in relation to the sailor Porter.

70. There is also no evidence to support the applicant's contention that a perilous sea voyage that he endured between Jervis Bay and Sydney took place in the manner described or at all. The respondent has attempted to locate, through the resources of Telstra, information concerning the applicant's friends during his service but has been unsuccessful.

71. Clearly, these matters present significant difficulties for the respondent and these are compounded by the very condition from which the applicant suffers, its symptoms and the effects that it has had upon him. As conceded by Mr Hume, he has made many claims which reflect his delusional thinking and I accept that these form part of his psychiatric condition.

72. Dr Lange referred to the delusional symptoms of the applicant as being of very long-standing and as probably having their commencement with the initial onset of his illness. In that situation, I am satisfied that the respondent would be placed in the position, if the claim were to proceed, where it would be prejudiced in its capacity to determine precisely what incidents have or have not occurred even from the applicant's perspective.

73. Indeed, even in relation to the Cape Leviqué situation, the applicant, in his letter of 6 February 2001, referred to the incident in significant detail then stated that it had happened only months prior to his being invalided out of the Navy. According to what evidence there was before the Tribunal in respect of the matter, it occurred some time late in 1966, if it occurred at all, and this was more than three years prior to the applicant's discharge from the Navy.

74. While there is documentation available in relation to the nature of the medical treatment that the applicant underwent before his discharge, I am satisfied that there would be major difficulties facing the respondent if it were required to make a determination, pursuant to the 1988 Act, that the applicant's paranoid schizophrenia arose out of the course of his employment.

75. The respondent was not given the opportunity to investigate the matter in a timely manner and I am satisfied that it would be prejudiced if it were required to do so more than 32 years after the incidents of causation are alleged to have occurred.

76. In relation to mistake, Commonwealth compensation legislation distinguishes between ignorance and mistake with only the latter being of relevance under the 1930 Act. Distinction between the two concepts was referred to in Telstra Corporation v Roycroft [1997] FCA 774 by North J who described the relevant authority as establishing the following propositions:

"1. A person who is not aware of a right to claim compensation at all is not mistaken about the right, but ignorant of it: Roles v Pascall & Sons [1911] 1 KB 982.

2. A person who knows that he has a right to claim compensation for one sort of injury, but no idea whether or not he has a right to claim for another, is not mistaken as to his right to claim for the second type of injury, but is ignorant of it: Commonwealth of Australia v Connors (1989) 86 ALR 247.

3. A person who knows he has a right to claim compensation for one sort of injury, and wrongly believes that he has no right to claim for another type of injury, is mistaken as to the right to claim for the second type of injury: Stevenson v Metropolitan Meat Industry Commission (1936) 37 SR (NSW) 109.

4. It follows from these authorities that a person who knows he has a right to claim compensation for the particular injury and knows that the time for making the claim is limited, but wrongly believes he has more time to make a claim than the Act allows, is mistaken as to the time for making the claim."

77. His Honour went on to point out that there was a thin line between mistake and ignorance but said:

"If a person acts on the basis of knowledge of the Act and that knowledge is wrong, or the facts upon which the person relies are wrong, then the person has made a mistake. If a person acts without any knowledge about the Act or an aspect of it, and consequently does not know whether or not it applies, then the person is ignorant."

78. In this case, there was some evidence given by the applicant of ignorance of the scheme and, as noted above, this has no application under the 1930 Act. However, there was also reliance upon incorrect information provided to the applicant by the Government Medical Officer that he was attending an annual medical checkup to assess his continuing eligibility for ComSuper pension. The applicant said in his evidence that he was advised that if he made a claim for compensation he would lose his DFRDB pension. There is no evidence of precisely what was told to the applicant by that medical practitioner. In any event, given that the applicant has given evidence that he made full disclosure of his circumstances to the solicitor that he saw in 1998 and, given that his dealings with the solicitor were specifically in relation to his payments from the Navy, I am satisfied that any mistaken belief the applicant may have had as a result of his conversation with the doctor in 1973 would have been overtaken by legal advice provided to him in 1988.

79. The issue of the applicant's absence from Australia does not arise in this case.

80. As to any other reasonable cause for the applicant's delay in giving notice or making a claim for his injuries, there must be a nexus between the "reasonable cause" and the delay: see Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665 at 673, 674 and Re Harbutt and Department of Defence (1998) 51 ALD 159 at 163. Also, there must be evidence of something more than mere ignorance before reasonable cause will arise: see Commonwealth v Connors (1989) 86 ALR 247 at 252 and Re Harbutt (above) at 165.

81. Dr Lange expressed the opinion that the applicant may never have been in full remission from his medical condition. Despite that, there have been occasions when he has been able to carry on his daily life in an apparently unaffected manner. He returned to the workforce in Sydney where he continued in employment for more than a year and, periodically, he was able to obtain and keep employed positions of some responsibility involving the driving of buses. The evidence is that, between these jobs, he suffered the effects of his schizophrenia and had many periods of hospitalisation.

82. Nevertheless, I am satisfied that there have been frequent periods in his post-service life when the condition was not manifest in any overt way. I am also satisfied that this was the case at the time of his discharge from the Navy. In the medical report from Royal North Shore Hospital, dated 29 January 1970, he is described as having made a complete clinical recovery with ECT, although reference is also made to the condition being in partial remission.

83. The applicant was able to complete his medical statement on discharge on 11 February 1970 where he made reference to his nervous disorder and, while it is not known as to what transpired at the time of the completion of that document in relation, for example, to the WRAN Sick Bay Attendant who witnessed his signature, the applicant has stated that he had not made any claim under the Repatriation or CEC Acts and had not been granted any pension or compensation. In that situation, I am satisfied that the applicant was in a position where he was at least aware of the availability of compensation. That is supported by the applicant's evidence that he made specific enquiries of the Commonwealth Medical Officer in 1973 about compensation.

84. The applicant's capacity for appropriate levels of functioning are demonstrated in his records. The report of Dr McGeorge on 6 January 1970 describes him as having a "good brain" which he uses well "to analyse any information he may gain". Dr McGeorge also speaks highly of the applicant's capacity to undertake his service-related tasks and that is consistent with entries in his Record of Professional Service where his efficiency is described variously as ranging from "average" to "superior" and where he is also recommended for advancement in all the relevant entries which are dated in 1965, 1967 and 1969 (see Exhibit 5).

85. In his evidence, the applicant said he had been functioning well in the twelve months that he was working in Sydney for the Mossman Council prior to his again becoming ill. That level of functioning capacity during the periods, in post-service years, when his condition was not overtly manifest, placed the applicant in a position where he could reasonably have been expected to press his claims for compensation from the Commonwealth. Even if it were the case that the applicant was provided with no information which enabled him to have some understanding of his right to claim compensation, as at the time of his discharge, it is difficult to accept that this was not a matter which was considered by the solicitor with whom he had dealings in 1988. In his evidence, he said that he provided that solicitor with all the details he was relying upon in relation to his claim. In that regard, the applicant's evidence was that his purposes for engaging the services of the solicitor was specifically related to obtaining more monies, by way of his service pension, from the naval authorities. I am satisfied there was no reasonable cause for the applicant to wait more than 30 years before giving notice for lodging his claim for compensation.

86. I am satisfied that the notice and claim requirements under section 16 of the 1930 Act have not been met by the applicant and that, therefore, his claim is not to be considered by the respondent. This means that the decision under review is affirmed.

DECISION

87. The Tribunal affirms the decision under review.

I certify that the 87 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

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

Associate

Dates of Hearing 9 and 11 September 2003

Date of Decision 26 September 2003

Counsel for the Applicant Mr R Hume

Solicitor for the Applicant Terrence O'Connor

Counsel for the Respondent Mr C Clark

Solicitor for the Respondent Dibbs Barker Gosling