Commonwealth Employees Rehabilitation and Compensation Act 1988 (Cth)

Commonwealth Employees Compensation Act 1930 (Cth) s.9

Administrative Decisions (Judicial Review) Act 1977

Administrative Appeals Tribunal Act 1975 s.44(a)

Hunter Valley Developments Pty Ltd v. Minister for Home Affairs and Environment (1984) 58 ALR 305

Commonwealth v. Wright [1956] HCA 79; (1956) 96 CLR 536

Collector of Customs v. Pozzolanic Enterprises Pty Ltd (unrep. 3/7/1993 Full Court)

Barrett v. Minister for Immigration, Local Government and Ethnic Affairs [1989] FCA 269; (1989) 18 ALD 129

Solicitors for the Respondent: Australian Government Solicitor

2. The applicant pay the respondent's costs of the application.

Note: Settlement and entry of Orders is dealt with in Order 36 Federal Court Rules.

FRENCH J This is an appeal by an ex-serviceman from a decision of the Administrative Appeals Tribunal refusing an extension of time to appeal to that body from a refusal by Comcare to accept liability on claims for workers compensation. The claims were lodged in respect of injuries sustained while the applicant was a member of the Australian Defence Forces. The accidents occurred in 1967 and 1970 and the claims were lodged in 1991. The claims having been refused, the applicant was some 52 days out of time in lodging his application to the Tribunal. The Tribunal refused an extension of time, basing its decision in part on an assessment of the merits of the case. The applicant appealed out of time to this Court and an extension of time was granted. The appeal proceeded to a hearing on 3 August 1993.

2. Keith Raymond Moodie was born on 15 July 1949. On 16 January 1967 he enlisted in the Australian Regular Army. He was discharged on 15 January 1973. On Sunday 16 July 1967, Mr Moodie was returning by foot from a weekend leave to his Unit at Puckapunyal in Victoria when he was struck by a motor vehicle. He had commenced his leave at 4.30pm on Friday 14 July and travelled to his parents home at Shepparton. He was due to recommence his duties at 8am on Monday morning. The accident occurred at about 9.45pm on the Sunday evening. The precise circumstances of the accident do not emerge clearly from the materials before the Court. Mr Moodie says he sustained injury to his left wrist and right elbow. Following the accident he was taken to the Shepparton Police Station where he and the driver of the vehicle, Mr Robert Hansen, each made statements about what had happened. Subsequently, Mr Moodie was taken to the Mooroopna Hospital for x-rays. Neither the police nor the hospital now have any record of these visitations. There is before the Court a service medical document dated 2 August 1967 which provides the following rather sketchy information:

"1. Tpr MOODIE was knocked down by a motor

car on 16 Jul 67, at approximately 2145

hours, at PINE LODGE, VICTORIA.

2. As a result of this accident Tpr MOODIE

was X-rayed for suspected injuries.

3. The medical account from the MOOROOPNA and

District Base Hospital is submitted.

No claim for compensation was made at the time of this

accident."

In 1968 and 1969 Mr Moodie saw active service in Vietnam. He was there involved in an incident when a mine detonated under a tank in which he was travelling. He suffered some concussion as a result of that incident.

3. The next accident of significance to the present proceedings is said to have occurred in February 1970. On Thursday 5 February 1970 Mr Moodie was found guilty of a breach of Australian Military Regulation 203(1) for exceeding the speed limit on a range road between Kapyong Barracks and the Area Workshop. The penalty imposed was two days confinement to barracks. Notwithstanding the penalty the officer commanding Mr Moodie's unit agreed to permit him to take leave to attend a wedding on Saturday 7 February provided that he returned to his unit on Saturday afternoon after the wedding. Mr Moodie was evidently providing a car for the wedding ceremony. He completed his military duties at 5pm on Friday 6 February. At 6pm he changed into civilian clothes. He left the unit at about 6.30pm. He was then travelling to Shepparton and from Shepparton to his parent's home at Pine Lodge. The route he took was, he said, the quickest and most direct way to travel. Although there is some confusion in the papers about precise times and dates, it appears that on the way to his parent's home Mr Moodie was involved in a motor vehicle accident as a result of which he suffered a punctured lung and three broken ribs. It appears from police records that the accident may have occurred at about 10.30pm on the Friday evening.

4. On 22 November 1991, Mr Moodie made a claim for compensation in respect of both accidents under the Commonwealth Employees Rehabilitation and Compensation Act 1988 (Cth). On 17 March 1992 a delegate of the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees issued determinations that the Department of Defence was not liable to pay compensation to Mr Moodie in respect of either accident. Mr Moodie requested reconsideration of the decisions. On 13 October 1992 a letter was sent to him affirming the decisions of which he had already been advised. The Commission delegate on that occasion was Mr Paul Otong.

5. Mr Otong set out his reasons for decision in the letter of 13 October. He referred to s.9 of the Commonwealth Employees Compensation Act 1930 (Cth) which applied at the time of both accidents. That section provided for compensation for injuries sustained on journeys in the following terms:

"Where personal injury by accident is caused to an

employee while he is travelling to or from his

employment by the Commonwealth, the Commonwealth

shall, subject to this Act, be liable to pay

compensation in accordance with this Act as if the

accident were an accident arising out of or in the

course of his employment."

In respect of the accident of 16 July 1967 Mr Otong concluded:

"For compensation to be payable, you must have been on

a journey to or from your employment. Whilst you

state that the return journey was to your unit, it

would appear that you were not actually on a journey

to your employment ie. the place where you were

require(d) to attend for the purpose of carrying out

the duties of your employment. Compensation is

therefore not payable in respect of the injuries

sustained by you in this accident."

And in relation to the accident of 6 February 1970, he accepted that Mr Moodie had been given permission to leave his barracks to attend the wedding. However he went on:

"Records reveal that the accident did not occur until

2230, at the earliest, approximately 4 hours after

your stated time of departure from the barracks. The

journey you were on, from Puckapunyal to Pine Lodge,

would have taken one and a half hours at a maximum.

There is therefore a period of at least two and a half

hours that cannot be accounted for. In these

circumstances I cannot make a finding that you were on

a journey from your employment."

The reasons then dealt with the question of the lapse of time since the accident. Reference was made to s.16 of the 1930 Act which provided for claims for compensation to be lodged within six months from the occurrence of the accident. This was subject to a proviso that the failure to make a claim within the specified period would not prevent its consideration if the failure were occasioned by mistake, absence from Australia or other reasonable cause. There was evidence to indicate that Mr Moodie had been informed of his rights at least at the time of the 1970 accident. Mr Otong concluded that the Department had been prejudiced by the late lodgment of the claim. He said that despite exhaustive attempts to assist Mr Moodie it had been impossible to fully investigate the circumstances surrounding the accident.

6. The letter of 13 October 1992 from Mr Otong to Mr Moodie concluded with the following advice of his rights to appeal to the Administrative Appeals Tribunal:

"FURTHER INFORMATION

If you are dissatisfied with this decision you can ask

the Administrative Appeals Tribunal (AAT) to review

the decision.

Forms for this purpose are available from all AAT

offices. If you do not use these forms your request

must be in writing and should include:

. your full name

. your residential and postal address

. date and details of the decision (including the

Reconsideration Number quoted above)

. name and position of the person who made the

decision

. the reason(s) for your request

You should address your application to:

The Deputy Registrar

Administrative Appeals Tribunal

GPO Box 9955 (in your capital city)

A period of 60 days from receipt of this decision is

allowed to ask for a review, although this period may

be extended if you ask the AAT for an extension of

time.

You will be liable to pay your legal costs, if any, if

you ask for a review and the AAT decision is not in

your favour. If you succeed, costs or part costs may

be payable by the Department.

If you have any enquiries please contact the writer on

(06)2668631."

7. The time limited for lodging an application for review with the Administrative Appeals Tribunal expired on 12 December 1992. In the event, an application was lodged with the AAT on 2 February 1993. That application was dated 27 January 1993. Because the application was out of time, it was necessary for Mr Moodie to obtain an extension of time from the Tribunal. The hearing of his application in that regard proceeded on 6 April 1993.

8. Mr Moodie gave evidence before the Tribunal. He said that when he received the letter of 13 October 1992 he had contacted a solicitor at Messrs. Kott Gunning "more or less straight away after I'd received it". He was advised to apply for legal aid. He did so apply, but could not remember the date of the application. There was an error in the application form which he had subsequently to correct. On 7 January 1993, Mr Moodie was admitted to Hollywood Repatriation Hospital suffering, he said, from stress and anxiety. He was discharged on 17 January 1993. An application for review and for an extension of time was lodged with the Administrative Appeals Tribunal on 2 February 1993 on legal advice. On the following day, Mr Moodie received a letter from the Legal Aid Commission rejecting his application. In his evidence before the Tribunal Mr Moodie said that if he had been aware of the 60 day time limit he would have filed his application earlier. He had given the relevant information to his solicitors but they would not do anything until legal aid had been approved. Mr Moodie also gave brief evidence in cross examination about the injuries he had sustained in the accidents in 1967 and 1970. He told the Tribunal he had not sought treatment for the injuries. By this it may be assumed he referred to treatment beyond the immediate treatment at hospitals to which he was taken after the respective accidents. He said he had had very little to do with the medical fraternity. He had worked in spite of continuing pain in his wrist, shoulder and elbow. Over the past five or six years the pain in his elbow and wrist had worsened.

9. The Tribunal gave an ex tempore decision. It referred to evidence from Mr Moodie that he had lost no work time and suffered no loss of wages arising from his injuries. He apparently suffered no incapacity for work during the balance of his service. The Tribunal also referred to evidence from Mr Moodie in which he said that since discharge he had had about 60 different jobs in the manual labouring category. He had not needed to seek medical attention for his injuries in all that time nor had he suffered any loss of employment as a result of those injuries. The Tribunal referred to the delay in claiming workers compensation in the first instance and noted that, though the respondent might well have been entitled to refuse to consider the applications which were made 21 and 24 years respectively after the alleged injuries, it did not take the point but proceeded to consider and determine the applications on the merits.

10. In relation to the delay in applying to the Administrative Appeals Tribunal, the Tribunal set out the history of the steps taken by Mr Moodie since he received a copy of the determination a few days after it was made on 13 October 1992. It referred to the principles regulating the consideration of applications for extension of time before the Tribunal which were set out in a case called Hunter Valley Developments Pty Ltd v. Minister for Home Affairs and Environment (1984) 58 ALR 305. It observed that it was necessary for Mr Moodie to establish an adequate explanation for the delay and noted that basically his explanation was that he did not read the paragraph in the determination which had warned him of the 60 day limitation period, that he relied on his lawyer's advice and that it was the fault of the lawyer that he did not file his application on time. His explanations for further delay, as the Tribunal noted, were that the Christmas period intervened, that Mr Moodie was admitted to hospital suffering stress and anxiety for a ten day period and that he was waiting for a decision about legal aid. The Tribunal did not consider that this amounted to an adequate explanation for the delay of 52 days. While observing that delay on the part of the solicitor is not of itself a sufficient cause to excuse a delay, the Tribunal said that even if that element were put to one side, there were other reasons why the application for an extension of time should not be granted. It noted in passing:

1. Mr Moodie had taken no action at all to

notify the respondent during the 52 day

period that he was intending to challenge

the determination. It would have been easy

for him to do so.

2. There appeared however to be no

significant additional prejudice to the

respondent by reason of the 52 day delay.

3. There was no issue of fairness as between

Mr Moodie and other persons in a like

position that was raised in the present case.

The Tribunal then went on to say that it should take into account the likely merits of the substantive case. Compensation would be payable under the 1988 Act if payable under the Commonwealth Employees Compensation Act 1930. It was necessary therefore to assess the merits of the case under the 1930 Act. In this respect the Tribunal said:

"A quick assessment of the merits indicates that the

applicant is unlikely to gain any significant benefit

from the compensation application."

The Tribunal referred to a decision of the High Court in Commonwealth v. Wright [1956] HCA 79; (1956) 96 CLR 536 which, it said, concerned a soldier in a very similar position to the applicant and involved the interpretation of the same section of the 1930 Act. The Tribunal said that legal submissions about the application of Wright's case to the applicant were arguable on both sides of the question. The Tribunal however went on to observe that it would be "extremely difficult" for Mr Moodie to show that he had suffered any or any substantial incapacity for work from either of the injuries. It referred to the lack of incapacity and absence of medical expenses during his employment with the Defence Force and the fact that since leaving the Defence Force he had been engaged in some 60 different manual labouring jobs. Although he had had periods of non-employment he had never lost hours of work as a result of those injuries nor had he been obliged to seek medical attention or incur any other type of medical expense arising from those injuries over a period of 24 years. Even now, it was said, he was not claiming to be suffering any incapacity for work from his injuries. The Tribunal concluded as follows:

"On the materials before me and in the exercise of my

discretion I do not consider that it would be fair and

equitable to grant an extension of time for the

applicant to bring his application to the Tribunal.

Firstly, he has not provided an adequate explanation

for the delay in lodging his application within the

statutory time limit. Secondly, if the case were to

proceed so that the substantive merits were to be

considered it is unlikely that the applicant would

succeed as, even if he was able to establish that the

Commonwealth was liable for one or both of the

injuries, he would not be able to show any significant

incapacity for work arising from those injuries. In

these circumstances it is far preferable that this

application proceed no further."

11. The present proceedings by way of appeal from the Tribunal's decision, were instituted on 11 June 1993. Although it seems they were commenced out of time, that time was extended by order made on 9 July 1993 and the appeal set down for hearing on 3 August. The notice of appeal was signed by Kott Gunning as solicitors for Mr Moodie. It asserted that the question of law raised in the appeal was "whether it would be fair and equitable for the Administrative Appeals Tribunal not to grant an extension of time". The stated ground of appeal was that Mr Moodie satisfied the requirements for an extension of time to be granted. No question of law however was disclosed on the face of the application. On 5 July 1993 Mr Moodie filed a notice to the effect that he was thenceforth acting in person. He represented himself at the hearing of the appeal. Mr Moodie relied substantially upon written submissions which had obviously been prepared by someone with some legal knowledge.

12. Mr Moodie's submissions began by addressing the merits of his claim. With respect to the 1967 accident, it was said that the circumstances differed from those in Commonwealth v. Wright (supra). That case had involved a soldier of the permanent forces serving at a training centre in Victoria, where he lived. His duties were concerned with the checking and logging of trucks and tanks coming in for repair. The soldier was liable to be rostered for other camp duties but unless so rostered was off duty from 4.30pm until 7.25am on the following day and from 4.30pm on each Friday until 7.25am on the following Monday morning. On a Saturday morning, not having been so rostered, the soldier travelled to and arrived at Albury, some eight miles away from the camp. At 6.45pm that evening, while walking on the Murray Valley Highway towards, and some two miles distant from, the camp he was run down by a motor car and killed. A claim by the soldier's mother for compensation under s.9A of the Commonwealth Employees Compensation Act 1930-1954 was disallowed. Upon an appeal to the Sydney Metropolitan District Court the appeal was allowed and compensation awarded to the mother. The Commonwealth appealed to the High Court which reversed the decision of the Metropolitan District Court. It was held that it was not proved at the time of the accident that the soldier was "travelling to his employment". The majority in favour of allowing the appeal comprised Webb, Fullagar and Kitto JJ. Dixon CJ and McTiernan J dissented. At p 551, Webb J said:

"... I think it is a proper inference from the Act that

to support a claim for compensation the accident to a

soldier must have arisen out of or in the course of

his service, which would include travelling on that

service to or from a military camp, and when going on

leave from the camp or returning to the camp on the

expiration of leave; but not otherwise for personal

reasons."

His Honour concluded that the facts of the case did not support the claim because when the deceased was killed, he might have been returning to the camp intending to eat or sleep there and not to resume his duties, but to continue on leave and to depart from the camp again and to return to it before Monday, as he was at liberty to do provided his leave were not cancelled. Alternatively, he might have been returning intending to terminate his leave and resume his military duties. There was no presumption in favour of an intention to resume military duties as there would if he had been killed on a Sunday night when returning to the camp:

"...one intention was as likely to have been

entertained by the deceased as was the other, and so

the claimant failed to discharge the onus of proof

that rested on her, and her claim was rightly rejected

by the delegate."

Similar reasoning was applied by Fullagar J at p 554 and Kitto J at p 559.

13. In Mr Moodie's submission Wright's case was distinguishable on the basis that he was not returning to base merely to spend leisure time but in order to report for duty. The facts in Wright's case were also to be distinguished from the circumstances of the 1970 accident. Mr Moodie, having been subject to an order confining him to barracks for two days, had been released for the purposes of travelling to a wedding but was still effectively under the control of the Commonwealth pursuant to the order of his commanding officer. In the alternative, it was said, he was returning home from his employment and therefore fell within s.9A of the Act. The Tribunal did not dispose of Mr Moodie's case on the basis that Wright's case was a complete answer to his claim. It accepted in fact that his submissions were arguable and I agree with that assessment.

14. Mr Moodie's submissions went on to point out that he had given evidence before the Tribunal that he had suffered and continues to suffer pain as a result of his injuries. He should have the right, it was said, to bring evidence before the Tribunal as to the full nature of his injury and the effect it has had on his life. The Tribunal's assessment that he was unlikely to gain significantly from the substantive application was made without the benefit of full evidence of his condition.

15. Written submissions were also filed on behalf of Comcare which was substituted as respondent in lieu of the Department of Defence. The latter has no separate legal identity. The decision taken by Mr Otong, which was the subject of the application to the Tribunal, was taken by him as a delegate of Comcare which was established as a body corporate under s.68 of the Commonwealth Employees Rehabilitation and Compensation Act 1988. Reference was made in Comcare's submissions to the principles governing extensions of time set out by Wilcox J in Hunter Valley Developments Pty Ltd v. Minister for Home Affairs and Environment (1984) 58 ALR 305. That case concerned an application for extension of time to file an application under the Administrative Decisions (Judicial Review) Act 1977. The general principles guiding the exercise of the Court's discretion in such a case are, in my opinion, also applicable to the exercise of a discretion to extend time by the Administrative Appeals Tribunal. In summary they are:

"(a) ... prima facie ... that proceedings

commenced outside that period will not be

entertained... the applicant for extension

(must) show an "acceptable explanation of

the delay" and that it is "fair and

equitable in the circumstances" to extend

time.

(b) Action taken by the applicant, other than

by making an application for review..., is

relevant to the consideration of the

question whether an acceptable explanation

for the delay has been furnished. A

distinction is to be made between the case

of a person who, by non-curial means, has

continued to make the decision-maker aware

that he contests the finality of the

decision and a case where the decision-maker

was allowed to believe that the

matter was finally concluded...

(c) Any prejudice to the respondent, including

any prejudice in defending the proceedings

occasioned by the delay, is a material factor...

(d) ... the mere absence of prejudice is not

enough to justify the grant of an

extension... public considerations often

intrude. A delay which may result, if the

application is successful, in the

unsettling of other people or of

established practices is likely to prove

fatal to the application.

(e) The merits of the substantial application

are properly to be taken into account in

considering whether an extension of time

should be granted.

(f) Considerations of fairness as between the

applicants and other persons otherwise in

a like position are relevant...

"(T)he fact that (delay) is the fault of (an

applicant's) solicitor... is not in itself...

sufficient cause to excuse the delay (although) "the

blamelessness of the claimant and the responsibility

of his solicitor is very material"."

16. It was submitted for Comcare that in order to succeed on this appeal, Mr Moodie must persuade this Court that the Tribunal erred on a question of law and in this respect reference was made to s.44(a) of the Administrative Appeals Tribunal Act 1975. No error of law was exposed by Mr Moodie's submissions. There was sufficient evidence to support the decision of the Tribunal. Mr Moodie, it was said, seeks to give evidence of the effects of any injuries suffered on his lifestyle but that is not a legislative test and is not relevant evidence. The Tribunal had correctly directed itself as to the law and there was no procedural miscarriage.

17. In my opinion there is nothing in the materials before the Court to suggest that the Tribunal has erred in law. As was emphasised to Mr Moodie in the course of this hearing, it is not for the Court on appeal from the Tribunal to substitute its own view for that of the Tribunal on the way in which its discretion to extend time should have been exercised. The appeal to this Court lies only on a question of law. As the Full Court recently reaffirmed, the limitation of the jurisdiction of this Court to questions of law in reviewing decisions of the Tribunal imposes a significant constraint - Collector of Customs v. Pozzolanic Enterprises Pty Ltd (unrep. 3/7/1993 Full Court).

18. Although it is clear that any assessment of the merits of a case based on less than complete evidence is to be undertaken with caution, it is a factor the Tribunal was entitled to take into account although its assessment did not require a definitive finding. I bear in mind the observations of the Full Court in Barrett v. Minister for Immigration, Local Government and Ethnic Affairs [1989] FCA 269; (1989) 18 ALD 129 at 130-131 in the context of an application to extend time under the Administrative Decisions (Judicial Review) Act 1977:

"It was common ground before us that it is proper to

take into account, in an appropriate case, whether or

not the application for an order of review has any

real chance of success. We accept the correctness of

that assumption. In doing so, however, we are not to

be taken as deciding that prospects of success must

always be considered when determining whether to

extend time... Nor do we think that it is likely to be

necessary, on such an application, to conduct a full

and detailed examination of the merits a substantive

application would have, if allowed to be brought...

Further, in considering the ultimate prospects of

success, one should bear in mind the observations of

Megarry J in John v. Rees (1970) Ch 345 at 402, that

"the path of the law is strewn with examples of open

and shut cases which, somehow, were not; of

unanswerable charges which, in the event, were

completely answered; of inexplicable conduct which was

fully explained; of fixed and unalterable

determinations that, by discussion, suffered a change."

In some respects, it must be said, the question before the Tribunal was a marginal one. A 52 day delay embracing the Christmas break, an unsuccessful application for legal aid and the illness of the applicant might have justified an extension given the absence of any prejudice to the respondent additional to that imposed by the original delay. It seems likely therefore that the Tribunal's view of the merits was critical to its decision. That view, however, appears to have been well warranted having regard to the history of the matter and the material before the Tribunal. In my opinion no error of law has been disclosed and the application must be dismissed.