Commonwealth Employees Compensation Act 1930 s.s.16(1)

Compensation (Commonwealth Government Employees) Act 1971

Administrative Appeals Tribunal Act 1975 s.44

Solicitor for Applicant: Australian Government Solicitor

Solicitor for Respondent: Legal Aid Commission of Victoria

The decision of the Administrative Appeals Tribunal be set aside.

The matter be remitted to the Administrative Appeals Tribunal and heard and decided again after hearing such further evidence as the Tribunal determines.

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

The question of law raised by this appeal is whether facts found by the Administrative Appeals Tribunal ("the Tribunal") are capable of constituting "other reasonable cause" under the provisos to sub-section 16(1) of the Commonwealth Employees' Compensation Act 1930-1970 ("the 1930 Act") so as to enable the Commissioner for Employees' Compensation ("The Commissioner") to hear and determine a claim by the respondent for compensation under the 1930 Act.

2. The respondent was born on 8 October 1912. In the year 1970 he was an employee for the purposes of the 1930 Act being employed by the Commonwealth at Melbourne in the Attorney-General's Department. While at his place of work on 6 November 1970 he suffered a "severe heart attack". He was taken to hospital. He was absent from work for some two months on full pay. He returned to work but was retrenched from work on the ground of invalidity on 10 December 1972 after 20 years service in the Commonwealth Public Service. He was then aged 60 years. By letter dated 7 October 1985 the respondent sought compensation based on his heart attack which had occurred in November 1970. The formal claim for compensation was contained in a "Claim by Employee for Compensation for Injury or Disease" and was dated 19 February 1986 and was in relation to "Severe Heart Attack" which occurred on 6 November 1970.

3. The Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act") came into operation on 1 September 1971 and repealed the 1930 Act but by reason of sections 4 and 104 of the 1971 Act the provisions of the 1930 Act apply with respect to the claim for compensation made by the respondent.

4. On 29 January 1987 a delegate of the Commissioner issued a determination as follows:-

1. On the evidence before me, I find that:

(a) the employee did not make the claim for

compensation within six months from the date

he first became aware that he was suffering

from the disease;

(b) the failure to make a claim was not

occasioned by mistake, absence from Australia

or other reasonable cause;

(c) the claim for compensation of the employee

would not have been admissable under Section

16 of the Commonwealth Employees Compensation

Act 1930.

2. NOW THEREFORE, in pursuance of the provisions of

the Compensation (Commonwealth Government

Employees) Act 1971, I hereby determine :-

(a) having regard to the provisions of Section 4

and sub-section 104(12) of the said Act, the

Attorney-General's Department is not liable

to pay compensation under that Act in respect

of the claim for compensation of the employee."

5. Pursuant to the Administrative Appeals Tribunal Act 1975, (the A.A.T. Act) the respondent sought a review of the determination made by the delegate. On the review the Tribunal was exercising all the powers and discretions conferred upon the delegate by the 1930 Act; see s.43 of the A.A.T. Act.

6. At the review, the respondent, as applicant, appeared in person. The Commonwealth, as respondent, was represented by counsel. On 18 March 1988, the Tribunal made the following decision:

"The decision under review is set aside and the

matter remitted for reconsideration by the

Commissioner in accordance with the following

direction namely:

The applicant's claim for compensation was

admissible by reason of the proviso to s.16(1)

of the Commonwealth Employees' Compensation Act

1930 - 1970 because (i) the Tribunal finds that

the want of or defect in the notice required by

s.16 was occasioned by reasonable cause and (ii)

the applicant's failure to make a claim within

the period specified by the section was in the

opinion of the Tribunal also occasioned by

reasonable cause".

7. The Commonwealth appeals from that decision pursuant to s.44 of the A.A.T. Act but it must be remembered that the appeal is on a question of law and is in the original jurisdiction of this Court.

8. Section 16 of the 1930 Act contains a number of procedural provisions and imposes what can be described as a limitation provision which applies where a claim has not been made within a specified period. For present purposes, the condition "severe heart attack" can be considered either as an injury or a disease. If it was a disease the applicant, at the latest, was aware that he was suffering from the disease when the heart attack occurred on 6 November 1970. That is the time when the disease is deemed to be an injury for the purposes of s.16 of the 1930 Act. This provision is necessary since "injury" is defined in the 1930 Act as excluding a disease. The parts of s.16 relevant to this appeal are set out:-

"16(1) 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) ...

(i) the want of ... the notice shall not

prevent consideration of the claim by the

Commissioner if he finds ... that the

want, ... 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. From a consideration of the reasons for decision by the Tribunal, it is obvious that the Tribunal did not receive from the respondent sufficient assistance in the presentation of material to enable the Tribunal to make the necessary findings to apply the relevant law to the issues raised in the review. The words "mistake ... or reasonable cause" or "mistake or other reasonable cause" have been considered in many authorities; see for example Murray v Baxter [1914] HCA 78; (1914) 18 CLR 622, Shotts Iron Company Ltd v Fordyce (1930) AC 503 and Black v South Melbourne [1963] VicRp 7; (1963) VR 34. From the authorities it is clear that in this context the word "mistake" includes mistake of law as well as of fact but that ignorance of the law in the sense of a failure to advert to the existence of the right to a claim, does not constitute, by itself, a mistake and cannot, by itself, constitute other "reasonable cause". A very helpful discussion of these problems appears in the judgment of the Court in Black's case at pp 36-38. In that case, the Full Court held there had been no mistake, but held, on the facts, that there had been "reasonable cause"; see pp 38-39.

10. In the present case, there are no findings of fact to justify a finding of mistake. The following passage appears in the reasons of the Tribunal:-

"Questioned by counsel for the respondent the

applicant said that he was aware that an employee

was entitled to compensation for an injury like

falling off a ladder, but he had no idea a heart

attack might be treated in the same way."

11. If that passage constitutes a finding of fact, it is not sufficient of itself to justify a finding of "mistake". Further facts would require to be found and such a finding would need to be based on material properly before the Tribunal. As was said in Black's case at p 37:-

"... mere ignorance of the law is not a mistake ...

there can be no such mistake unless there is an

advertence to the subject matter as to which

mistake is alleged."

In its reasons, the Tribunal assumed that the respondent as applicant could not rely on mistake, saying:-

"It is not open to the applicant on the evidence in

respect of either issue to argue that the lack of

notice or failure to make a claim was due to

mistake or absence from Australia and accordingly

"other reasonable cause" is the only issue in

respect of both aspects of the proviso."

The reasons for decision of the Tribunal also contain the following passage:-

"There appear to be several factors which explain

the failure of the applicant to cause an adequate

notice to be given to the appropriate person as

soon as practicable after his heart attack:

(1) The fact that he was not suffering any loss at

work because of it.

(2) The fact that he knew that those in authority

over him were as aware as he was of the fact

of the heart attack and his inability, on

medical advice, to return to work for two months.

(3) His ignorance of any right to claim

compensation at that stage or later and

accordingly his failure to consider or seek

advice as to the adequacy of the notice which

his employer had however clearly received in

the sense that he had full knowledge of the

heart attack."

12. Counsel before this Court each contended that the paragraphs numbered (1), (2) and (3) should be treated as findings of fact applicable to each of the failure to give notice of the accident and the failure to make the claim.

13. In the present case, the Tribunal pointed out that under the 1971 Act, failure to comply with the requirements equivalent to those imposed by s.16(1) of the 1930 Act to give notice of injury and to make a claim within prescribed times is excused where the failure results from ignorance, mistake or other reasonable cause. Despite the absence of the word "ignorance" in the 1930 Act, the Tribunal said of the respondent:-

"In the present case I find that in 1972 the

applicant was an average public servant working at

a fairly low level after 20 years service. It is

extremely unlikely that such a person would be

aware that a heart attack might lead after two

years more work to a valid claim for compensation.

He was understandably ignorant of his rights and

accordingly he had reasonable cause for his failure

to make a claim within six months of his decision

to retire.

Such a factual situation cannot of course be

equated to that of a man who ought to have known

that a fall from a ladder resulting in injury and

producing incapacity for work and loss of wages was

a compensable injury. Such ignorance would be far

less likely to constitute reasonable cause."

14. Since the only claim was that made under the 1930 Act in respect of the heart attack suffered in November 1970, we cannot understand why the Tribunal found it necessary to consider whether there was reasonable cause for the applicant's failure to make a claim within six months of his retirement in December 1972. However counsel argued the appeal on whether the findings numbered (1), (2) and (3) as set out above could constitute other "reasonable cause" under s.16 of the 1930 Act.

15. In our opinion, those facts are not sufficient to constitute other "reasonable cause" under s.16 of the 1930 Act. The notice of accident had to be given as soon as practicable after 6 November 1970. On any view, if the respondent had known of the existence and extent of his rights under the 1930 Act, he could have given notice of the accident at any time after he returned to work in January 1971 and likewise could have made his claim within six months of 6 November 1970. In order to come within the provisos to s.16(1), it is necessary that the want of giving notice and the want of making the claim "was occasioned by mistake ... or other reasonable cause"; (emphasis added). The findings of fact do no more than support a conclusion that he was ignorant, that is, that he did not know of his right to make a claim for compensation. Of course it followed from that conclusion that he was ignorant also of the requirements of giving notice and of making a claim within the times prescribed in s.16(1). The failure to give the notice and the failure to make the claim, on these findings, was occasioned by ignorance. Ignorance, in the sense we have used it as signifying failure to advert to the existence of the right cannot of itself constitute "reasonable cause" under the 1930 Act.

16. As was said by the Court in Black's case at p 38, when considering "reasonable cause":-

"The inquiry here appears to be of a much wider

kind justifying a more liberal attitude. The

expression "reasonable cause" appears to us to mean

some act or omission which operated to prevent the

giving of notice, and which was an act or omission

which was in the circumstances reasonable. In

Quinlivan v. Portland Harbour Trust, (1963) VR

25, at p 28, Sholl, J., used these words: "The

sub-section means to refer to a cause which a

reasonable man would regard as sufficient, a cause

consistent with a reasonable standard of conduct,

the kind of thing which might be expected to delay

the giving of notice by a reasonable man."

17. Applying that test, it is clear on the findings made that the only reason for the failure to give the notice and to make a claim was ignorance of the law. That does not constitute "reasonable cause".

18. The appeal must be allowed; the decision of the Tribunal set aside and the matter remitted to the Tribunal to be heard and decided again after hearing such further evidence as the Tribunal determines. The respondent should pay the applicant's costs of the appeal but it is noted that the respondent may, if so advised, apply to a member of this Court sitting in Chambers for a certificate under the Federal Proceedings (Costs) Act 1981.

This is an appeal by the Commonwealth of Australia ("the Commonwealth") from a decision ("the decision") by the Administrative Appeals Tribunal constituted by a Deputy President ("the Tribunal"), given on 18 March 1988. The Tribunal decided that the decision under review in favour of the Commonwealth, made by the Commissioner for Employees' Compensation ("the Commissioner"), be set aside and the matter be remitted for consideration by the Commissioner in accordance with a direction. The direction was that the claimby the respondent ("the employee") for compensation was admissible by reason of the proviso to s. 16(1) of the Commonwealth Employees' Compensation Act 1930-1970 ("the 1930 Act").

2. Before this court it was common ground that the matter fell to be determined in accordance with the provisions of the 1930 Act. Section 16(1) of that Act, so far as is presently material, provided as follows:-

"(1) 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.

...."

3. The Tribunal found that the want of the notice required by s. 16(1) and the employee's failure to make a claim within the period specified by that sub-section were both "in the opinion of the Tribunal ... occasioned by reasonable cause".

4. The events preceding the decision, as summarized in the Tribunal's reasons, may be stated briefly. The employee's claim was first made to the Commissioner by letter, dated 7 October 1985, and later on a claim form, dated 19 February 1986. The claim was that on 6 November, 1970 the employee had suffered a severe heart attack at work in the Attorney-General's Department at Melbourne and that he was thereby incapacitated for work for two months; it was admitted on the claim form that the employee had not previously made a claim in respect of the condition. The employee returned to work two months after the heart attack.

5. The Tribunal's reasons stated that on or about 29 August, 1972 a Commonwealth Medical Officer examined the employee, recommended retirement and classified him as "totally and permanently incapacitated". The employee subsequently went on leave on full pay until 10 December, 1972 when he formally retired. He had not suffered any loss of salary up to that time in respect of any absence from work and had no basis for any financial claim in respect of the period of two months during which he had been absent from work.

6. The questions of law raised by the appeal, as amended by leave during the hearing, were as follows:

"A. Whether -

(a) The fact that Mr. Connors (the

employee) did not suffer any loss at

work due to the heart attack

(b) The fact that the (employee) knew that

those in authority over him were as

aware as he was of the fact of the

heart attack and his inability on

Medical advice to return to work for

two months;

(c) The (employee's) ignorance of any

rights to claim Compensation following

the heart attack,

could constitute "reasonable cause" within

the meaning of those terms in Provisos (i)

and (ii) to Section 16(1) of the

Commonwealth Employees' Compensation Act

1930-1970 ("the 1930 Act") as excusing

failure to give notice and make Claim as

required by the said Section 16(i).

B. Whether the Tribunal erred in Law in

deciding that for the purposes of the

making of the Claim for Compensation the

period of six months did not commence until

the (employee) became incapacitated for

work following August, 1972."

7. In my opinion it was not open to the Tribunal, as a matter of law, to find that the three matters in (a), (b) and (c) were, in themselves, sufficient to constitute "reasonable cause" within the meaning of the provisos. I shall refer later to the question whether, on the evidence, it was open to the Tribunal to find, as it did in (c), that the employee was "ignorant" of his rights - as distinct from "mistaken" as to them. However, the question of law before this court must be determined on the basis of the facts found by the Tribunal.

8. Accordingly the appeal must be allowed and the decision of the Tribunal set aside. The Commonwealth's counsel accepted that, if such orders were made, the proper course would be to make an order remitting the matter to be heard and decided again either with or without the hearing of further evidence. As the matter is to be re-heard, it seems desirable to draw attention to the Tribunal's statement, in its reasons for decision that "it is not open to the (employee) on the evidence ... to argue that the lack of notice or failure to make a claim was due to mistake ...". The Tribunal did not set out any findings of fact in support of that conclusion but, in dealing with the issue of whether there had been "other reasonable cause", referred to the employee's "ignorance of any right to claim compensation following the heart attack". It should be noted that, as is shown by the authorities cited later, it may be difficult for a Tribunal to decide whether it should find that an employee has been "ignorant" of his right to claim compensation (e.g. ignorant of the existence of the Act) or "mistaken" as to his rights(e.g. by mistakenly thinking that his right to compensationcompensation depended upon the occurrence of an accident at work).

9. Some support for the view that the employee was "not ignorant but mistaken" appears in the Tribunal's reference to the employee's evidence "that he was aware that an employee was entitled to compensation for an injury like falling off a ladder, but he had no idea a heart attack might be treated in the same way." On my reading of the Tribunal's reasons, it accepted that evidence as true. In recording the relevant "factors" the Tribunal referred to the employee's "ignorance of any right to claim compensation". In my opinion it is arguable that the evidence did not support a finding of "ignorance of any right to claim compensation ..." and that, properly characterised, the evidence showed a mistake of law by him as to his rights under the 1930 Act. He may well have made such a mistake by drawing "a distinction, according to the common use of language, between getting hurt and becoming sick" - to use the words of Latham C.J. in Hume Steel Ltd. v Peart (1947) 75 CLR at 252-3. The context in which those words appeared was as follows:-

"There is a distinction, according to the

common use of language, between getting

hurt and becoming sick. The former would

be described as an injury and the latter

would generally not be so described. ...

It appears to me to be difficult to draw

any satisfactory distinction between the

breaking of a limb and the breaking of an

artery or of the lining of an artery. One

is as much an injury to the body, that is,

something which involves a harmful effect

on the body, as the other."

10. It should be pointed out, in fairness to the Tribunal, that the employee was not represented by a legal practitioner and the learned Deputy President did not have the benefit that such representation would normally have given, both in the leading of evidence and by submissions as to the law relevant to the meaning of the word "mistake" in the provisos. It may be that, if the Tribunal had had the benefit of submissions as to the authorities, the Tribunal would have found on the evidence before it that the employee was "not ignorant but mistaken" - to use the words of Davidson J. in Stevenson v Metropolitan Meat Industry Commission [1937] NSWStRp 13; (1937) 37 SR(NSW) 109. If the Tribunal had not come so quickly to the conclusion that the employee was not under a mistake it might have decided to ask him further questions as to his state of mind at the material time, bearing in mind that the unrepresented employee's evidence "in chief" before the Tribunal was all given in answer to questions by the learned Deputy President. One question was "So you remained in ignorance of your right to make a claim for compensation until 1985?" That question was a leading question and appeared to suggest, wrongly, that the employee had already given evidence that he was "ignorant" of his right to claim compensation. The employee's answer might well have been different had the question been "Did you think that an accident was essential before you could claim compensation?" (cf. the employee's evidence, cited earlier, as to "an injury like falling off a ladder").

11. There are two authorities which appear to be particularly relevant. In Murray v Baxter [1914] HCA 78; (1914) 18 CLR 622 at 629 Isaacs and Gavan Duffy JJ. said:

"Assume, however, the mistake is one of

law, it is still a "mistake".

....

(At 630-1) Roles v Pascall & Sons (1911) 1

KB 982 decided that the workman's absolute

ignorance that the Workmen's Compensation

Act existed at all was not a "mistake". In

that case, however, Cozens-Hardy M.R.

himself said, at 985:-

'A mistake means that a man takes a

wrong view as to the construction or

effect of an Act of Parliament, if it be

a mistake of law.'"

12. In Stevenson's case (supra) Davidson J., with whose reasons for judgment Maxwell J. and Owen AJ. concurred, reviewed the authorities, including Murray v Baxter, and said (at 117):-

"The position then is that it is not an

excuse to rely upon absolute ignorance of

the law, but this cannot mean that an

applicant is bound to know the law in its

correct application to every set of facts:

cf. Harbon v Geddes [1935] HCA 25; 53 CLR 33 (per Evatt J.

at p 53).

.... it appears that the applicant not only

knew of the statute, but had made use of it

successfully in recovering compensation for

physical injury, so that he may also be

presumed to have been aware that notice was

required. He thought, however, that an

accident was an essential and did not know

that he could make a claim if he were put

off with a sickness which had been caused

by his work. If he relied merely upon the

last part of this statement, it might

indeed be suggested that he was only

ignorant of the law, but if the two things

be combined and his idea was that the

necessary point of commencement was an

accident, he may well have been the victim

of a mistake."

The words which I have italicized in the last paragraph, relating to what the employee "thought", may be relevant to the Tribunal's consideration of whether further evidence should be heard.

13. The appeal must be allowed, the case remitted to the Tribunal to be heard and decided again, either with or without the hearing of further evidence. The respondent employee must pay the costs of the applicant, the Commonwealth of Australia.