¢ CATCHWORDS Commonwealth Employees Compensation - Appeal from Administrative Appeals Tribunal - Transitional provisions of 1971 Act - Applicant member of C.M.F. - Injured in 1959 and 1961 - New Act passed and proclaimed 1971 - Three claims made post-1971 in respect of injurles ~ Symptoms apparent pre+1971 in relation to two claims based on physical injury - First apparent post-1971 in relation to third claim based on depression - Whether claims should have been entertained - Whether admissible under 1930 Act - Meaning of "admissible" - Third claim rejected on merits - Whether any evidence to support rejection. Administrative law - Claims based on physical injury rejected by Commissioner before hearing of claim on depression - Whether denial of natural justice. Commonwealth Employees Compensation Act 1930, s.16 Compensation (Commonwealth Government Employees) Act 1971 ss.4, 63, 76, 104, 53, 54 Commonwealth Functions (Statutes Review) Act 1981 s.151 Administrative Appeals Tribunal Act 1975,ss.29(1), 44 Acts Interpretation Act 1901, s.8 SCOTT-HOLLAND V. COMMONWEALTH OF AUSTRALIA No. G20 of 1982 CORAM: ELLICOTT J. 13 January 1983 SYDNEY "IN THE FEDERAL COURT OF AUSTRALIA ) ) NFW SOUTH WALES DISTRICT REGISTRY ) No. G20 of 1982 ) GENERAL DIVISION ) " JUDGE WIIGRG" MAD ° DATE: 1. 2. Ts ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL ANTHONY EDWARD SCOTT-HOLLAND Appellant TERE COMMONWEALTH OF AUSTRALIA Respondent ORDER MAKING ORDER: Dllicott J. Sydney 13 January 1983 THE COURT ORDERS TUAT:—- The appeal be dismissed. Each party have liberty to apply on the question of costs. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G@ 20 of 1982 ) ) GENERAL DIVISION ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL ANTHONY EDWARD SCOTT-HOLLAND Appellant THE COMMONWEALTH OF AUSTRALIA Respondent CORAM: Eljicott J. 13 January, 1983. REASONS FOR JUDGMENT During the period 1 July 1958 to 14 November 1961, Anthony Edward Scott-lUolland (the appellant) was a member of the Citizen Miltary Forces. Trom 1 July 1958 until 30 June 1960 he was with I Infantry Battalion Commando Unit. [From 1 July 1960 onwards he was with the First Commando Company of the First Royal New South Wales Regiment. On 14 November 1961 he was discharged at his own request. In each of the years 1959 and 1961 he suffered an injury whilst on training with his Unit. He claims that on the first occasion he suffered injuries to his hands and fingers and on the second fell injuring his spine when an Army vehicle in which he was travelling stopped suddenly. Between 1975 and 1980 he made three claims for compensation as a Commonwealth employee arising out of these incidents under the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act"). One claim related to physica] injury resulting from the 1959 accident, another to physical injury from the 1961 accident and the third to depression resulting from the latter accident. Each of the claims was considered by a delegate of the Commissioner for Employees' Compensation pursuant to the 1971 Act but was rejected on the merits. The appellant then asked that his claims be referred to a Compensation Tribunal pursuant to ss. 63 and 76 of the 1971 Act for reconsideration. lIlowever before these references were dealt with the Compensation Tribunalsceased to exist and by reason of s. 151 of the Commonwealth's Functions (Statutes Review) Act 1981 the references of the Commissioner's decisions on the appellant's application were transferred to be dealt with by the Administrative Appeals Tribunal. The Commonwealth then sought to have cach of the Commissioner's decisions reviewed pursuant to s. 29(1) of the Administrative Appeals Tribunal Act 1975. It contended that none of the claims should ever have been considered by the Commissioner. With the consent of counsel for the appellant the Commonweatth's applications for review were dealt with before the references sought by the appellant. The tribunalupheid the Commonwealth's claim on two of.them fanding that they should not have been entertained by the Commissioner's delegatc. As to the third - that relating to the claim based on depression - the Tribunat found that 1t was admissible but on a subsequent date upheld the delegate's decision in relation to it. The appellant has appealed to this court from the decisions of the Tribunal pursuant to s. 44 of the Administrative Appeals Tribunal Act on questions of law which were confined at the hearing to the following:- 1. Whether the Tribunal erred in law in relation to the claims based on physical injury aun holding that the Commissioner's delegate should not have admitted them. 2. Whether the Tribunal erred in law in electing to hear the three applications for review filed by the Commonwealth prior to considering the references of Lhe Commissioner's decisions requested by the appellant. 3. Whether there was any evidence before the Tribunal upon which iat could have properly been satisfied that the depression was not attributable to the 1961 accident. Whether the Commissioner's delegate was entitled to entertain the applications for compensation? As stated earlier, the appellant made three claims. On 23 April 1975 he made a claim for compensation for arthritis, liver, kidney and anal fissure which he alleged was caused by damage to his spine from the injury in March 1961. On 11 October 1978 he claimed compensation for crushed and cut hands and fingers of both hands which he alleged occurred as a result of an accident in April 1959. The third claim was made on 19 October 1980. He claimed compensation for depression alleging that it arose from the injury in 1961. ~-/4, As stated carlier each of these claims was dented and each of them was rejected by the dalcgate of the Commissioner for t Emplovees' Compensation. At the time the injuries were suffered, the act relevant to the compensation of Commonwealth employees injured in the course of employment was the Commonwealth Employees' Compensation Act 1930 (the 1930 Act). as amended/ That Act was repealed in 1971 by the Compensation (Commonweaith Government Employees) Act 1971 which, as amended, remains un force. Under the 1930 Act, the Commonwealth was liable to pay compensation to an employee if personal injury was caused to him or her by accident arising out of or in the course of employment by the Commonwealth. Provision was made for the consideration of claims by a Commissioner for Employees' Compensation established by that Act. There were, however, limitations of time for the making of claims. Section 16(1) of the 1930 Act pvrovided:- "16(1) The Commissioner shall not admit a claim for compensation under this Act for an anjury unless notice of the accident has been served upon him as soon as practicable after 1t 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 s1x months after advice of the death has been received by the claimant: Provided always that - (1) 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 oe F 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." Provision was also made for the contents of the notice and service of it. Section 4(1) of the 1971 Act repealed, inter alia, the 1930 Act. Section 4(2) provided:- "(2) Notwithstanding section 8 of the Acts Interpretation Act 1901-1966, the Commonwealth 1s not liable, on or after the proclaimed date, to make any payments under the Commonwealth Workmen's Compensation Act 1912 or the Commonwealth Employees' Compensation Act 1930-1971 but section 8 of the Acts Interpretation Act 1901-1966 otherwise applies in relation to the repeals effected by the last preceding sub~section to the extent to which its application would not be inconsistent with the operation of any provision of this Act." Section 8 of the Acts Interpretation Act 1901 provides (inter alia) that where an act repeals in whole or in part a former act then unless the contrary intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any act so repeaicd or affect any investigation, legal proceeding or remedy in respect of any such righl, privilege, obligation or liability and any investigation or legal proceeding or remedy may be instituted continued or enforced as if the repealing &@ct had not been passed. Part ViL of the 1971 Act contains transitional provisions. Sub-sections (1), (2) and (12) of s. 104, which 1s contained in that Part are relevant and provide:- ../6. "104(1) (2) (12) Subject to this Part, this Act, other than section 120 applies in relation to an injury sustained, a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered, by an employee before the proclaimed date as it applies in relation to an injury sustained, a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered, bv an employee on or after that date. The last preceding sub-section does not entitle a person to receive compensation under this Act in respect of an injury sustained before the proclaimed date, or in respect of a disease, or an aggravation, acceleration or recurrence of a disease, symptoms of which first became apparent before that date, if compensation was not payable in respect of that injury, that discase or that aggravation, acceleration or recurrence as the case may be - (a) an the case of an injury sustained, or a disease or an aggravation, acceleration or recurrence of a disease, symptoms of which first becainne apparent, before the commencement of the Commonwealth Employees Compensation Act 1930 - under the Comnonwealth Workmen's Compensation Act 19123; or (b) an any other case - under the Commonwealth Employees' Compensation Act 1930, or that Act as amended, as in force at the time when the injury was sustained or symptoms of the disease, or of the aggravation, acceleration or recurrence, [Cirst became apparent, Where (a) in respect of an injury sustained, or a disease, or an aggravation, acceleration or recurrence of a disease, symptoms of which first became apparent, before the commencement of the Commonwealth Emplovees' Compensation Act 1930, proceedings for the recovery of compensation under the Commonwealth Workmen's Compensation Act 1912 were not maintainable by a person by reason of section 5 of that Act; or w.e/7. (b) an respect of an injury sustained, or a disease, or an aggravation, acceleration or recurrence of a disease, symptoms of which first became apparent, after the commencement of the Commonwealth Employees' Compensation Act 1930 and before the proclaime date, a claim for compensation by a person under the Commonwealth Employees' Compensation Act 1930, or under that Act as amended, was not admissible by reason of s. 16 of that Act, or of that Act as amended, sub-section (1) does not entitle that person to receive compensation under this Act in respect of that injury, that disease or that aggravation, acceleration or recurrence, as the case may be. Sections53 and 54 of the 1971 Act lay down the requirements for the giving of notice to the Commonwealth and the making of claims for compensation where claims are made under the 1971 Act. It is not necessary to set them out ian detail. For present purposes it 1s sufficient to observe that the tests are not quite as stringent as those applied under s. 16 of the 1930 Act. Under the 1971 Act ignorance was expressly made an excuse for failing to give notice or make a claim within time, whereas under the 1930 Act it was not. The Administrative Appeals Tribunal in dealing vith the appellant's claims based on physical injury (those of 23 April] 1975 and 11 October 1978) held that no compensation was payable in respect of the respective injuries because the symptoms of the aunjury in each case became apparent whilst the 1930 Act was in force and the claims would not have been admissible by reason of s. 16 of that Act. In relation to the claim based on depression arising from the 1961 accident it held that it Cell for consideration under the 1971 Act because the symptoms of that injury first became apparent after that Act came into force. -.-/8. It is to the Tribunal's decision in relation to the first two claims that this ground of appeal relates. In applying the provisions of s. 16 of the 1930 Act the Tribunal held that no notice of the accident had been given in relation to the 1959 injuries and that the claim was made approx- imately twenty years after the event. The only excuse suggested was 1gnorance and ignorance was not equivalent to mistake under para.(1) of the proviso to s. 16. Therefore the claim should not even have been entertained hy the Commissioner's delegate. The claim for physical injury in relation to the 1961 @ accident, 1t was held, was really in no better position. The symptoms of the injuries were known no later than 1968 and no notice had been given. The only excuse suggested was ignorance and 1i was not an excuse under s. 16. On this basis the Tribunal held that, applying s. 104(12) . of the 1971 Act, neither of these claims would have been adnissible under s. 16 of the 1930 Act and therefore should not have been entertained by the Commissioner's delegate. In this respectit founc, he was in error. The Commonwealth's request for a review of these @ decisions was therefore upheld and the claims held inadmissible. The appellant's request that these decisions be reconsidered on the merits was accordingly rejected. It was argued on behalf of the appellant that the Tribunal erred in law because 1t misconstrued s. 104(12)(b) of the 1971 Act. Tt was contended that this paragraph only applied where a claim had been made under the 1930 Act and the claim had not in fact been admitted or entertained by the Commissioner by reason of the provisions of s. 16 of that Act. It was said that the purpose of w+ /9, ar ~o- the 1971 Act was to prevent claimants whose claims had already been ruled out from making a fresh claim by virtue of s.104(1). Asa result, the claims should have been treated as claims subject to the 1971 Act to which ss. 53 and 54 should have been applied. Under these provisions ignorance was an excuse for fa1rlure to give notice or to make a claim within time and the claims could properly have been entertained, It 1s clear that in respect of each of the claims in question, the symptoms of the injury first became apparent before the proclaimed date, that 1s, 1 September 1971. However, no claim for compensation was made and, not having been made, no claim was rejected. Therefore, on the appellant's argument, paragraph (b) of sub-s. (12) could not apply. should be read as referring to every case where, if a claim had been Counsel for the Commonwealth contended that sub-s. (12) (b) made under the 1930 Act, it would not have been entertained by reason of the provisions of s.16 of that Act. In the end the resolution of the problem depends on the meaning of the word "admissible". Should 1t be treated as referring to an actual claim which in fact was nok admitted or entertained or should it be read as referring to a claim which was not capable of being admitted or entertained whether made or not. @ The word "admissible" according to the Shorter Oxford English Dictionary means "allowable". In Australian National Airlines Commission v. Cassidy (1964) 110 C.L.R. 172 it was held that the word "admit" in s.16 of the 1930 Act meant "entertain" not "grant". In other words, 1t meant that the Commissioner should not hear a claim. This o--/10 een nty wo ten bg Poe np ST kg te OMT ret ee etter tT ae ER ce Ett RE ate EEA ee ee SES a Sa SE, ete ne bel i ve see ra paw -10- connotation of the word is, however, not in dispute in this case. The appellant argued the matter on the basis that "admit" in s.16 meant "entertain". In my opinion, the Tribunal did not err in law in holding that the two claims relating to phvsical injury should not have been entertained by the Commissioner's delegate. The correct interpretation of s.104(12) (b) is that it was intended to ensure that a person who suffered injury whilst the 1930 Act was in force the symptoms of which were then apparent would have no greater right of recovery under the 1971 Act, so far as that right was confined by obligations to give notice and make a claim, than was had under the 1930 Act. When the words "a claim by a person under the 1930 Act was not admissible" are read 1n the light of Cassidy's case I think they mean "a claim by a person under that Act would not have been entertained". They are not necessarily referring to a claim actually made whilst the 1930 Act was in force but to claims made then or subsequently in respect of pre-1971 Act injuries. No reason was suggested why the Parliament would have intended to distinguish between claims in respect of compensation for the injuries in question on the basis of whether they had been made and dealt with @ or not and I am myself unable to discern any. Indeed it might seem unfair that a person's right to recover under the 1971 Act in respect of a 1930 Act injury the symptoms of which were previously apparent should depend on whether that person had made a claim under the 1930 Act which had been dealt with. Because of the more generous provisions of ss. 53 and 54 of the 1971 Act it could even be seen as a reward for being dilatory. ee -/1li "Mag Es 1 FF bs Te teh Me een Se een, pamenneertian I ren er Oe a an ee SRR ghe te as pote This does not mean that there are no difficulties in adopting this construction. Indeed, because s. 16 of the 1930 Act confers a discretion on the Commissioner it does raise other problems. For instance, does the word "admissible" require a decision to be made as to what the Commissioner under the 1930 Act would probably have decided in the exercise of that discretion? Or 1s it to be construed as conferring on the Commissioner appointed under the 1971 Act a similar discretion which he 15 called upon to exercise in the light of the relevant circumstancas. It ts also clear that s. 16 of the 1930 Act when read 1n its entirety does not bar a claim for compensation absolutely. It enables consideration of the claim 1f the Commissioner finds that the Commonwealth 1s not prejudiced or that the want, defect or inaccurecy in the noticeor the fa1tlure tomake a claim was occasioned by mistake, absence from Australia or other reasonable cause. In a sense, therefore, it could be said that every claim was "admissible" provided the Commissioner so found, and, therefore it could never be said that a claim was not admissible until the Commissioner under the 1930 Act had in fact formed the view as to the matters referred to. I do not think this is the correct interpretation of sub-s. (12) (b) but it does point to the diaffi¢eulties of interpreting that provision. It could also be argued that the words "was not admtssible by reason of s. 16 of that Act", referring to the 1930 Act, are not appropriate to applv to a claim once that Act was repeaicd and ..-/12. ye se s. 16 thereof could not operate on a claim. On this basis it could be argued that the appellant's contention that it only applied to claims already dealt with is correct. There are, therefore,weighty arguments to sunport the appellant's contention but for the reasons I have already stated T do not think thev are correct. The view I have taken 15,1 think, supported by a general consideration of s. 104 of the 1971 Act when read with s. 4(2) of that Act. In a number of the sub-sections of s. 104 other than sub-s. (12) there will be found an erypression of legislative intention that ian respect of injuries suffered before the 1971 Act came ianto force, a claimant for compensation is to be in no better after 1t came into force position/than he or she was prior to that date. Thus, s. 104(2) provides,in cffect,that an injury of that class where the »ymptoms were known prior to the proclaimed date will not be compensable 1f 1t was not compensable under the 1912 Act or the 1930 Act. Other sub-sections contain the same emphasis and I think Lhe construction I have given to sub-s. (12)(b) is consistent with this apparent intention. In my view therefore the Tribunal did not err tn law in holding that the claims in respect of phvsical injury suffered an 1959 and 1961 should not have been entertained by the Commissioner's delegate. Whether the Tribunal erred in law in hearing the Commonwealth's application first Tt was argued on behalf of the appellant that the Tribunal denied natural justice to him by determining that the claims in relation to the physical injuries were not admissible before it dealt with the merits of the claim relating to depression. -../13. nee In considering this matter, it should be borne in mind that the decision that the claim relating to depression was admissible was dealt with at the same time as it decided that the others were not admissible. Although 1t does not stop the appellant from ratsing the matter (see Kuswardana v. Minister for Immigration and Ethnic Affairs (1981) 35 A.L.R. 186) 1t should also be noted that this course was folloved by the Tribunal with the approval of the appellant's then counsel. In support of this submission, it was argued that Lhe appellant would or may have gained considerable benefit had all the claims been heard together, that the matters were tnextricably linked and that the Trabunal could not have considered the claim relating to depression without considcoring the effect of physical injury said to have occurred in 1961. In my opinion the Tribunal in hearing these matters separately did not deny the appellant natural justice. It was open to the appellant to call whatever relevant evidence he wished in order to support his claim and the fact that the other claims had been declared inadmissible did not prevent him from doing so. The Tribunal] was, under the s. 152(f) of the Commonwealth Functions (Statutes Review) Act 1981, entitled to give any directions it thought appropriate on any matter relating to the conduct of the review not inconsistent with the Administrative Appeals Tribunal Act 1975 and, 1n my opinion, the Tribunal was entitled to act as it did. Indeed, having in mind that they were in the nature of preliminary points which related to the whole basis of the appellant's claims, 1t seems to me to have been an entirely appropriate course to adopt. 22/14, im -14 - Whether there was any evidence before the Tribunal to support its finding that the appellant's depression was not attributable to the 1961 accident? In Collins v. Minister for Immigration (1981) 36 A.L.R. 598 the Full Court of this Court said in relation to an appeal from a decision of the Administrative Appeals Tribunal which aunvolved attacking a finding of fact:- "An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based." This 1s the burden which the appellant must undertake in order to establish this ground of appeal. The Tribunal appears to have accepted that the appellant suffered from depression but was not satisfied it was caused by the 1961 injury. It seems to have taken the view that the appellant was suffering from an existing psychiatric complaint and that this was at least low grade depression, that is, of low grade antensity as opposed to deep depression. However 1t was not satisfied that this psychiatric complaint was due to the 1961 accident. In arriving at this conclusion considerable reliance was placed on the evidence of Dr. Shand, a specialist psychiatrist, and Dr. Kendall, a Consultant Physician, who, though not a psychiatrist had had experience in a psychiatric hospital. The Tribunal thought this evidence more acceptable and found as a fact that the incapacity of the appellant was not the result of the anjury in 1961. Dr. Shand saw the appellant on two occasions and gave oral evidence. As a result of his assessment of the appellant he reported on 14 October 1981:- "He was again difficult to interrogate about psychiatric disorder, but his somewhat vague and nonspecific description could be interpreted as a low grade depression, secondary to continuing physical compjJaints and incapacity, whatever mav be their causes, along with some degree of tension. le says that he 1s to see a psychiatrist for treatment in the near future. Erplicitly, he attributes and rationalises all his current complaints as due to the original truck accident or to subsequent therapy of the original complaints. Without significant orthopaedic evidence, of disorder arising from the accident, it 1s dilfacult to justify such a conclusion. I would like to reconsider the matter after receipt of the reports requested." Subsequently Dr Spigelman, an orthopaedic surgeon, saw the appellant and he reported on 17 November 1981:- "This man has numerous and complex complaints which whilst he may attribute to injuries that occurred 6 to 7 years before he started with his actual current complaints and the reason whv he 1s off work. There 1s no suggestion that his back injury caused anything more than mild musculo- ligamentous strain which had long passed before it had recurred again. His current complaints can be attributable to his various disorders. I cannot see how the accidents he is alleged to have sustained in 1959 and 1961 can in any way be contributing to his current disabilities." In evidence before the Tribunal Dr. Shand, after reading this conclusion, cxpressed the following opinion:- In view of the opinion in this report there 1s insufficient evidence from the orthopaedic point of view to make a connection between the accident and his continuing complaints. On the basis of this evidence it was open to the Tribunal, in my opinion, to form the conclusion that st did, namely,that the appellant's mental condition was not due to the 1961 accident. -.-/16. wen Counsel for the appellant relied on certain answers given by Dr. Shand in cross-examination. He was asked:- "I put this to you, 1f£ the applicant had been showing symptoms of depression three months after the accident in 1961, would it be proper to say on the balance of probability the depression arose as a result of the accident?--- If there were no other circumstances operating at the time and that had been the only unusual e1rcumstance in his life, 1t is possible there could be a connection there, From the history that you took is there any other circumstance that could have brought it about?-~-None that I knew of unless in fact he had suffered a rebuff by his garLlfriend, that happened some time alter the accident but T am not sure of the time relationship." @ There is no doubt that these answers are significant. However they do notramove Dr. Shand's basic opinion as set out aun the evidence to which I have referred. In the light of ut, it is not possible to conclude that there was no evidence before the Tribunal upon which its conclusion could properly be based. This ss strengthened by the fact that Dr. Kendall gave confirmatory evidence. Although not a psychiatrist he 1s a Consultant Physician with experience in a psychiatric hospital. This does not mean, of course, that this Court would @ necessarily have come to the same view on the evidence as the Tribunal. Dr. Finlayson who 1s the appellant's treating psychiatrist provided a report and gave evidence. In his report he expressed the view that theappellant had suffered a depressive type ilincss following the truck accident in 196]. He confirmed that opinion in oral evidence. At the Lime he gave evidence he had secn the appellant initially and then 3 or 4 times in the past 4 or 5 weeks. -+/17. _ eeepc Rasta seer ten 22, em aN LOSI ONE Ge pee oe It may well be that this Court,on the basis of his evidence, 1f considering the matter as on a rehearing, would accept his evidence on the balance of probabilities and find for the appellant. However that 1s not the issue. The question is, as I have said, whether there was any evidence before the Tribunal on which it could properly find that the appellant's psychiatric problems were not due to the 1961 accident. In my opinion there was some such evidence and therefore this ground of appeal has not been made out. It follows that in my opinion the appeal should be dismissed. 'that th.s andthe @:ixctecn Le - , ~'S aea true copy of the Reus, 3s. 23 J eut herein of his Honour Mr. Justice Eliicott. \ tasonnpe Dated: 13 Jancary IQ$23