Hannon v TAC [2002] VCAT 118

2. This matter is remitted to the respondent for reconsideration according to law and these reasons.

Applicant Mr R Middleton of counsel instructed by Tim Connor, Solicitor

Respondent Mr D Masel of counsel instructed by TAC Law

1. Patrick Hannon, the father of the applicant, died in a transport accident on 29 June 1989.

2. At the time of Patrick Hannon's death, his son Brendon Scott Hannon (the applicant) was eleven years old. On 24 November 1988 Brendon Hannon was admitted to the care of the Department of Community Welfare Services and remained in departmental care until he was sixteen. At no stage following his admission to care did he return to his family. It is accepted that at no stage during Brendon's admission to care was any order for maintenance sought or made against either parent. The Director-General of the department was apparently in receipt of his endowment benefits.

3. On 16 July 1989, the deceased's widow completed a claim of compensation pursuant to the transport accident legislation. In the claim form she indicated that she and her three children (including Brendon) were wholly or partly dependent on the deceased.

4. On 30 August 1989, she completed and signed a statutory declaration. In that declaration she stated that at the time of her husband's death she was "wholly, mainly or in part dependant on him for economic support." She also declared that her personal gross weekly income excluding amounts received from her husband was $2,472.21 and that her personal gross weekly income from the deceased was "money went straight into hotel account."

5. That statutory declaration (as distinct from the claim form) required the widow to list children under the age of 16. It did not enquire into the dependency status of those children.

6. It is interesting to note that, from the date of Brendon's admission into departmental care, that is from 24 November 1988, the Director-General of Social Welfare was, by virtue of the provisions of section 36 of the Social Welfare Act 1970, his guardian to the exclusion of his parents. Section 36 of that Act remained in force until 31 January 1991 when it was repealed by section 284(e) of the Children and Young Persons Act 1989.

7. On 10 October 1989 the respondent Transport Accident Commission advised Ms Cheryl Hannon (the deceased's widow) that it had assessed her entitlements pursuant to sections 57 and 58 of the Transport Accident Act 1986 ("the Act"). The death benefit entitlement assessed pursuant to section 57 of the Act amounted to a lump sum of $67,872.50. That amount was calculated using the formula provided in section 57.

8. Periodical payments were assessed pursuant to section 58 of the Act and amounted to $800.00 per fortnight.

9. Last year, correspondence commenced between the solicitor acting for Brendon Hannon and TAC. On 23 April 2001, TAC advised the solicitor that it now accepted that Brendon Hannon "was not being financially supported by Mrs Cheryl Hannon as of the end of May 1990" and advised that he was eligible to receive a weekly benefit and an education allowance from 1 June 1990 until his 16th birthday.

10. On 27 April the solicitor again wrote to TAC noting the omission of any reference to a death benefit arising under section 59(1). TAC responded on 10 May 2001 in the following terms:

We confirm that at the date of the initial assessment of the dependency benefits claim your client was considered to be a dependent child of Mrs Cheryl Hannon and therefore included in her family group for payment of Section 57 and 58 benefits.

11. There are two interlocking issues for consideration. The first is one of jurisdiction and the other is a consideration of the effect of section 59 of the Act.

12. Section 68 provides the time limits within which parties may make a claim to the Transport Accident Commission for compensation. That section, at all relevant times provided -

(b) who is a dependant or a surviving spouse of a person who dies -

as a result of a transport accident to which Part 3 applies may make a claim for compensation under that Part within 1 year -

(2) If the Commission considers there are reasonable grounds for a delay in making a claim in accordance with sub-section (1), the Commission may accept a claim for compensation under Part 3 at such later time before the expiration of three years after the transport accident or death or after the injury first manifested itself, as the Commission approves.

13. Applications for review of TAC's decisions are governed by section 77(1) of the Act which provides that a person aggrieved by a decision, within 12 months of becoming aware of the TAC's decision, might appeal to the Tribunal for review of the decision.

14. On 28 March 1996 the Supreme Court of Victoria handed down its decision in the matter of Bell v Transport Accident Commission (1996) 9 VAR 335. In that case the Court of Appeal decided that the then Administrative Appeals Tribunal might use the power given to it by section 31(2) of the Administrative Appeals Tribunal Act 1984 to extend time within which a person might apply to the Tribunal for review of a decision after the 12 month period.

15. This decision eventually gave rise to the enactment of the Transport Accident (Amendment) Act 1998 (No.34/1998 assented to 19.5.1998). The effect of section 13 of the amending Act was to amend section 77 of the Act to read as follows (the amending parts are set out in bold type):

(1) A person who is aggrieved by a decision of the Commission may, within 12 months after becoming aware of the decision, apply to the Tribunal for review of the decision.

(2) An application under this section can only be made within the period of time specified in sub-section (1) and must be in the prescribed form and give reasons for the application.

(2A) The amendment of sub-section (2) made by section 13(1) of the Transport Accident (Amendment) Act 1998 does not apply in respect of an application received by the Tribunal before 9 April 1998.

16. Section 77(2) and (2A) remained in force in the above form until 1 July 1998 when both were repealed pursuant to the enactment of the new Victorian Civil and Administrative Tribunal Act 1998.

17. Section 31(2) of the Administrative Appeals Tribunal Act was reproduced in terms of like effect in section 126(1) and (2)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act). That section gave power to the Tribunal to extend time in certain circumstances but Clause 94 of Schedule 1 to the VCAT Act provided that section 126 (1) and (2)(a) did not apply to a proceeding under the Act with effect from 1 July 1998.

18. Thus it is clear that the Tribunal has no present power to extend time in transport accident matters pursuant to any provision of the VCAT Act. The present situation is that the claims procedure cannot be activated later than 3 years post-accident and the review procedure can only be activated within 12 months of the aggrieved person becoming aware of the decision. It is not in issue between the parties that, because of the operation of section 68 of the Act, the only decision capable of review is the decision made in October 1989 subsequent to the claim lodged by the applicant's mother in August 1989.

19. On 4 June 2001 the applicant sought review in this Tribunal. The decision sought to be reviewed was said to be that of "the TAC's determination of entitlements payable pursuant to section 59" and referred to the date of decision as 23.04.2001.

20. During the running of the case Mr Middleton of counsel appearing for the applicant sought leave to amend the present application to review the decision of the respondent made on 10 October 1989. Although I refused that application on the first day of the hearing, Mr Middleton pressed it again on the occasion of the second day of hearing. At that time Mr Masel, who appeared for the respondent, agreed that the applicant's personal knowledge of the decision fell within the twelve-month period contemplated by section 77(1) of the Act. I will return to that matter in due course because Mr Masel's submissions about the time limit turn on his argument that the applicant acquired knowledge of the decision when it was made through the agency of his mother.

21. The applicant's claim depends upon a fulfilment of the criteria provided in section 57(4) and 59(1) bearing in mind the provision of section 59(9).

(a) any dependent children of the person would have been entitled to a death benefit under section 59 but for the operation of section 59(9); and

(b) a surviving spouse is entitled to a death benefit under this section -

(c) each such child is entitled to an equal share of an amount calculated in accordance with the formula -

23. The details of the formula are not necessary for a consideration of the present point.

(1) If a person dies as a result of a transport accident and leaves a dependent child whose other parent is not a dependent spouse of the person or does not wholly, mainly or in part provide economic support for the dependent child or is dead or dies as a result of the same accident, the Commission is liable to pay weekly payments, a death benefit and an education allowance in accordance with this section.

(9) The Commission is not liable to pay a death benefit under this section for a child of a person who dies as a result of a transport accident if the Commission is liable to make payments under sections 57 or 58 to a surviving spouse of the person.

26. It follows that for the applicant to succeed (leaving aside issues of time) he must satisfy the criteria set out in section 59(1) of the Act. Although no evidence on the point was before the Tribunal I infer that the respondent (tacitly at least) considered the applicant fell within the section for the purposes of payment of education expenses and weekly payments when it made payments to the applicant under those two headings.

27. The applicant must show that he was a dependent at the date of death of his father. He must then show either that his mother was not a dependent spouse at the date of her husband's death, or that she did not wholly, mainly or in part provide economic support for him.

28. Whether or not he was a dependent child of his father turns on the definition of "dependent child" located in section 3(1) of the Act and on the facts at the time.

29. In section 3(1) of the Act "dependent child" is defined to mean -

"dependent child" in relation to a person means a child of that person who-

(b) has attained the age of 16 years but is under the age of 25 years and is a full-time student -

and would, but for the injury or death of that person, be wholly, mainly or in part dependent on that person for economic support but does not include a child who has a spouse;

30. It is necessary for me to make some preliminary comments about the operation of section 59. The section is framed in the present tense. What seems clear to me is that the section is not to be interpreted as applying only at the precise date of death. In my view the requirements of the section have to be considered contemporaneously with the triggering event, that is the death of Patrick Hannon. By that I mean a consideration having regard to those events and facts that occurred within a reasonable temporal proximity to the date of Patrick Hannon's death. It thus follows that a consideration of whether or not the applicant was dependent on his father requires me to look at the factors in the months leading up to the death. Similarly a consideration of whether or not he was provided with economic support by his mother requires a consideration of a complex of matters which followed (albeit in short compass) the death of his father as well as the matters preceding the death. The tests are not identical - one is of dependency and the other of economic support.

31. I heard the evidence of both Mrs Hannon and Brendon. Although I felt that much of Brendon's evidence had the gift of hindsight, and some of it was clearly erroneous, there was however a ring of truth about most of what he said. I was not overly impressed with Mrs Hannon's evidence but I accept that some of what she said might have been coloured by the anguish and family conflict that must have accompanied her son's admission to care and the events that led to that unfortunate state of affairs.

32. Although neither counsel specifically addressed me on the issue of whether or not the applicant was dependent on his father at the time of his father's death, it seems to me necessary to come to a decision of that point. Perhaps the matter was not argued because the issues were not in doubt but in any event I find that the applicant was a dependent of the deceased. I have based that conclusion on the following evidence:

* Mr Hannon senior clearly had the wherewithal to provide for his son. His income tax return for the year ended 30 June 1989 showed a taxable income in excess of $30,000.00. A copy of that return was included in the respondent's tribunal book filed with the Tribunal.

* I accept the applicant's evidence that prior to his father's death and subsequent to his admission to care, his father visited regularly, provided him with extra food, took him for meals, purchased swimwear for him and provided items such as toys and a billiard cue. I also accept his evidence that on occasions he went on outings with his father.

* I also accept Brendon's evidence that prior to his father's death there was an understanding between his father, himself and the Department that everyone was working towards eventual family reunification. I accept his evidence that he thought this was a major objective at the time. The view he held is substantiated to some degree by the departmental notes.

* Although the applicant's mother told the Tribunal she knew little of this I do not regard that as particularly significant. Obviously there were tensions within the family and it is just possible that Mr Hannon senior did not always inform his wife about his outings with his son or about the option of boarding school or about the general focus on reunification.

* I was not convinced by Mrs Hannon's evidence in relation to the boarding school option. I accept that it is probable that the discussions committed to paper in the department file did occur and that the deceased told the social worker he was prepared to pay the boarding school fees rather than place Brendon in foster care. It would appear this discussion between the social worker and Patrick Hannon occurred on 23 June 1989, a few days prior to his death. Her evidence in this regard is also inconsistent with the minutes of the annual wardship review conducted 1 November 1989.

* Although no person was called from the department I accept that the departmental notes exhibited at the hearing can be given weight. Indeed the documents themselves would probably, subject to formal proof, have been admissible as business records. (See ss 55-60 Evidence Act 1958)

* I was not impressed by Mrs Hannon's assertions that her husband only gave Brendon pocket money based on a premise that all his needs were met by the department. That is contrary to the evidence given by Brendon and I accept his evidence in this regard.

33. I infer from the evidence as a whole that at the date of death there was no concluded position regarding Brendon's status of being in the care of the department. That status was capable of being reviewed (indeed the legislation made annual review mandatory), reunification was being pursued, the wardship position was far from permanent in nature and remained so until 1 November 1989 when it was confirmed and extended. The deceased maintained contact with and support of his son, he was considering ongoing support by way of boarding school fees and he contributed to the welfare of his son in both an economic and parental sense.

34. In re Hammerstein v TAC (1992) 5VAR 337 Smith J had occasion to consider the meaning of "dependent" in relation to claim made under section 59(1) of the Act. His Honour's conclusions are summed up in the headnote as follows: "The question of whether the applicant was "mainly or in part dependent" within the definition of "dependent child" in s 3 of the TA Act was a question of fact. It was to be determined by asking whether the child had a reasonable expectation that the deceased parent would provide support to the child either at the time of death or in the future." From the applicant's own evidence his expectation of future support from his father was clear. The pursuit of reunification, the regular visits, and the exploration of boarding school options are all part of a set of circumstances that give credence to the existence of a state or expectation of dependency.

35. It follows that I accept that it is more probable than not that Brendon would have been, but for the death of his father, mainly or in part dependent on his father for economic support. Thus the first limb of section 59(1) is established.

36. I assume from what Mr Masel put to me at the hearing that Mrs Hannon was not a dependent spouse of the deceased although that does seem at odds with some of the information in the tribunal book and certainly at odds with the original claim form she filed. He assured me that that part of section 59 was not in contention therefore it follows that the only other criterion to be established is whether or not Mrs Hannon "wholly, mainly or in part" provided economic support for Brendon.

37. Again I do not consider this relies on the state of affairs at the precise time of death. Rather it seems to me to require a consideration of the situation persisting before and at the time of death along with a consideration of events that followed the death.

38. I have come to the conclusion that Mrs Hannon did not wholly, mainly or in part provide economic support for her son. In my view whatever position subsisted at the date of Patrick Hannon's death, matters changed dramatically in the few months following his death. In coming to that conclusion I was swayed to some degree by the contents of notes made by the department and obtained by the applicant pursuant to freedom of information legislation. Although the notes were not formally proved, matters found in the notes were put to Mrs Hannon and there was no serious dispute by her about their validity or accuracy. The factors I took into account and which led me to my conclusion were:

* Although the wherewithal to support is by no means determinative of whether or not economic support was provided I was surprised that no personal income tax return for Mrs Hannon was made available to the Tribunal. The company taxation return for the year ended 30 June 1989 indicated that a salary was paid to her. The Tribunal heard no evidence concerning Mrs Hannon's earnings or financial status either before or immediately following the date of her husband's death. In her own evidence she said she had no information about that and "left it all to the accountant." Thus the Tribunal is unable to be satisfied the applicant had the means to support her son at the relevant time.

* According to one of respondent's file notes dated 4 October 1989, it had been advised by Mrs Hannon's then solicitor that she was in extreme financial difficulties.

* According to the departmental notes, by 26 September 1989 Mrs Hannon was making it clear that she could not see Brendon returning to the family environment. She seems to have told the department that there was no option for Brendon other than to remain in permanent care and on 11 October 1989 she apparently indicated that "placing Brendon in permanent care had to be done."

* In her viva voce evidence to the Tribunal she agreed that following her husband's death she did not want Brendon to return home and she wanted him made a permanent ward of the state. I infer that any plans for reunification were permanently shelved following Patrick Hannon's death.

* The evidence seems to support that the extent of Mrs Hannon's economic support was the purchase of some underpants, maybe four pairs of track pants and a possible purchase of a trumpet. Her evidence about the purchase of a bicycle, giving Brendon $200 in cash for a bicycle event and buying helmet and knee pads is rejected. Departmental records indicate it funded the purchase of a bicycle and the suggestion by Mrs Hannon that she handed her eleven year old son $200 in cash in inherently unbelievable. She told the Tribunal that in the period prior to her husband's death all earnings, both hers and her husband's, went into hotel bank account and any funds made available to Brendon were from that source.

* Mrs Hannon expressed the view that all of Brendon's needs were looked after by the department. As early as 26 September 1989 she was expressing unequivocal views that she did not want Brendon to return home.

* Mrs Hannon agreed in evidence that none of the money received by her from the respondent was applied for the benefit of Brendon.

39. Mr Masel submitted that I should accept that the purchase of underwear, track pants and a musical instrument fulfilled the statutory requirement of the provision in part of economic support. But with respect I do not accept that submission. Applying his logic would have the result that any birthday of Christmas gift might be said to amount to part-provision of economic support. And although I have no reasons to doubt Mrs Hannon's assertions that, before her husband's death, all funds provided to Brendon were the result of their joint efforts, that to my mind is not enough by itself to amount to the provision of economic support as required by section 59.

40. The legislation gives no guidance in relation what is meant by way of economic support but to my mind notions such as intent to support, regularity or sufficiency of support have to be imported into any analysis of what is meant by the term.

41. And here there was certainly no long term (or indeed even short term) intent to support. Rather I was drawn to an inescapable conclusion that Mrs Hannon had abrogated any responsibility she might have had to support her son (for reasons this Tribunal is not required to explore) entirely to the department.

42. Indeed there seems to have been a speedy tapering off of parental interest following Mr Hannon's death and Mrs Hannon told the Tribunal that in the post-accident years, she probably visited the applicant no more than eight times.

43. For the above reasons I have formed the view that Cheryl Hannon did not (even in part) provide economic support for Brendon and further that she had no intention of doing so.

44. That brings me to one of the more difficult points raised by Mr Masel, that is, the question of notice. Section 77(1) of the Transport Accident Act 1986 provides that "a person whose interests are affected by a decision of the Commission may, within 12 months after becoming aware of the decision, apply to the Tribunal for review of the decision."

* Because the only claim that the applicant can rely on is the claim made by his mother (anything else being well beyond the three year time limit) then it is said that the applicant received notice at that time through the agency of his mother acting on his behalf;

* The respondent was entitled to rely on the claims submitted by Mrs Hannon;

* Because Brendon relies on the claim submitted by his mother, he is also bound by the notice and the awareness that thus arises from the notification to her;

* The claim form submitted by the mother nominated Brendon as a dependent child;

* Following receipt of the claim the Commission was obliged to make its decision on that claim;

* Once that decision was made the Commission was obliged to pay under the claim;

* The Commission was obliged, consistent with the objects of the legislation, to make the payment expeditiously;

* If the Commission was required to enquire about the particularities of a claim it would be driven to the absurdity of having to write letters, say to a newborn child;

* That would give rise to a further absurdity if were postulated that a newborn child could turn around twenty years later and claim lack of awareness because he or she could not read at the time;

* The framework of the compensation provisions is such that (to use counsel's vernacular) there is one pot of money to be divided up and once that pot is divided and paid then no more claims can be entertained and no payments in excess of "the pot" can be made;

* The only remedy available to the applicant is, in Mr Masel's view, against his mother.

46. Mr Masel referred me to a number of cases in relation to the agency point. In particular he referred me to Vizcay v TAC (DP Rizkalla unreported 28 July 1989), MacDonald v TAC (SM Ball unreported May 2001) and Servis v TAC (SM Walker unreported March 1999). Those cases are not in my view at all helpful in the present situation given the quite unusual facts of the case before me. And they are not useful because of the very precise statutory provision which took away the normal common law rights of the parent Cheryl Hannon.

47. There is little doubt that in normal circumstances Mrs Hannon would have had the normal common law powers in relation to all her children including Brendon. By that I mean for instance, the power to determine a child's education and religion, the power to restrain conduct and chastise to a reasonable degree, the power to consent to medical treatment, the right to represent a child in legal proceedings as well as certain rights of administration of the child's property. But to my mind all of those rights were removed when Brendon was committed to the care of the department. Although I mentioned the matter of the statutory alteration of rights to both counsel, no particular point was made by either of them in this regard.

48. From the papers submitted to me it is clear that Brendon's admission to the care of the Director-General of the department was made pursuant to section 31(1)(a) of the Social Welfare Act 1970 (later reprinted as the Community Services Act 1970). The effect of the admission to care was to be found in section 36 of that Act which stated:

(1) The Director-General shall to the exclusion of the father, mother, and every other guardian become and be the guardian of the person and estate of any child or young person admitted to the care of the Department or admitted or committed to the care of the Children's Welfare Department prior to the commencement of the Social Welfare Act 1960 and shall remain such guardian until the child or young person attains eighteen years of age or such greater age (not exceeding twenty-one years) as the Minister directs unless such child or young person is sooner discharged.

(2) The Director-General may at any time order any child or young person so admitted to be discharged from the Department and thereupon the guardianship shall be terminated.

(3) Subject to this Act the Director-General shall have as guardian the same rights powers duties obligations and liabilities as a natural guardian of the child or young person would have.

Without affecting the generality of the provisions of section 36 the Director-General -

(a) shall have the sole right to the custody of any child or young person admitted to the care of the Department;

(b) may demand sue for and recover any wages earnings or other moneys due to such child or young person;

(c) in the name and on behalf of such child or young person may commence and prosecute any actions suits claim or proceedings touching any property or rights of such child or young person or touching any matter in which such property or rights

50. Certain fact situations emerge from the evidence. Some 6 days before TAC forwarded the death benefit to Mrs Hannon, one of its officers made a diary note the contents of which were to be found in the respondent's tribunal book. The note read as follows:

Please proceed S57 & 58 benefits. Assess periodical benefits on income of $26,000 derived over 364 days ($500 gross pw) pending receipt of the 1989 Company return - see over.

Telephoned Gary Mann. The child Brendon was apparently causing great difficulties and was made a temporary ward of the State in Nov '88. The Dept of Community Services are paid the spouse child endowment and were prior to the accident. Brendon used to spend some weekends at home and also accompanied the family on outings.

Gary also advised Mrs Hannon is in extreme financial difficulties

51. On 6 October 1989 the following diary note appears:

Reviewed. Although Brendan is a ward of the state he still falls within the definition of `dependent child' as the family would still take him on some weekends, thereby making `in part dependant' on the deceased.

52. A further note appeared on 9 October 1989 read as follows:

I agree that Brendon is in part dependant as he was/is visiting the family at weekends, and going out socially with them. Payment authorised.

53. From that I infer that the respondent knew that Brendon was a ward of the State and had it made the relevant enquiries (and I have no evidence in this regard) it might have formed the view that notice to Mrs Hannon was not sufficient or consistent with the real state of affairs. The power of Mrs Hannon to deal in relation to her son Brendon was expressly removed by operation of the Community Services Act 1970.

54. For that reason I have concluded that Mr Masel's arguments that Mrs Hannon was the agent of Brendon and that the respondent was entitled to rely on her agency are not sustainable in the face of such clear legislative provisions to the contrary. In the face of such clear legislative terms the respondent is unable to rely on notice to Mrs Hannon to support its claim that the applicant was made aware of the decision in 1989 and that this application is brought out of time.

55. It follows from that, that provided I agree to amending this application to review the decision of the respondent made on made on 10 October 1989, Brendon's application to review is within time because the parties agree that he did not personally become aware of the original decision until some time after he went to his present solicitors.

56. Mr Masel's other submission is based on what was referred to as "the one pot" argument.

57. Mr Middleton of counsel who appeared for the applicant argued that there is no clear statement in the Act that there is any limitation or indeed "one pot" in relation to death benefits. Whilst it is true there is no express mention of the maximum amount to be paid, in my view on its proper construction the Act clearly has the effect of limiting the amount than can ordinarily be paid following death.

58. Using the current legislation which in all relevant respects (except for the dollar amount which was $79,850 at the time) was in similar terms when the applicant's father died, a thorough consideration of section 57 provides support for that premise. Section 57(2) provides for the calculation of a death benefit to a surviving spouse. That calculation has the result that a surviving spouse will never receive more than $103, 210 and unless the deceased was only twenty-five years of age at death, will receive a lesser sum calculated in accordance with the method set out in the sub-section.

59. Section 57(3) takes the same sum of $103,210 and makes provision for payments where there is one or more surviving spouses. In accordance with the calculations set out in that sub-section the total amount to be paid to all of the surviving spouses will never exceed $103,210.

60. In similar vein section 57(4) provides the methodology for payment where there is a surviving spouse (or more than one surviving spouse) and dependent children. Again, the result of the calculation is that the sum of all the payments will not exceed $103,210.

61. Even though the legislative draftsperson has not specifically placed an upper limit on payments to be made, it is reasonable to assume (having regard to the effect of all of section 57) that it was Parliament's intention, in ordinary circumstances, to cap the amount to be paid by way of death benefits.

62. But that does not take away the liability of the respondent to make a payment to the applicant in accordance with the legislation. More likely the result is that the respondent has some right of action against Mrs Hannon and I gain support for that contention by reference to the terms of section 75 of the Act which makes provision in the case of overpayments and gives the respondent power to pursue recovery of any overpayment.

63. Section 75 acknowledges that mistakes will occur and overpayments will happen. What it does is repose power in the respondent to recover any such overpayments from the recipient of them.

64. I think it unlikely that this very rare set of circumstances is likely to re-occur. By that I mean that it is unlikely that there will be a host of claims by children who were wards of the State before the death of one parent and whose surviving parent was not providing economic support, whose surviving parent lodged claims for compensation on his or her behalf without the necessary authority to do so and in circumstances where the respondent might have known she had no power in relation to that particular child. For that reason I reject the submission by Mr Masel that acceding to this application will make the role of the respondent difficult and produce absurdities and in some way hamper its expeditious handling of claims.

65. In my opinion the applicant has been successful in his claim.

1. This application is amended to review the decision of the respondent made on 10 October 1989.

2. This matter is remitted to the respondent for reconsideration according to law and these reasons.