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Legal Herald - by Craig Hill

Litigation - Legal Herald

Another Trip And Fall Case Rejected

January 15th 2009 12:50

The Queensland Court of Appeal [McMurdo P, Fraser JA and Mackenzie AJA] has upheld the decision of the Supreme Court in another trip and fall case where the primary judge held that the unfortunate injury was not caused by the negligence of the respondent but rather the plaintiff's own carelessness.

ELLIS V UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (Q) [2008] QCA 388

FACTS

The plaintiff, Mr Ellis, was walking home late on a rainy evening. He had consumed alcohol in the hours leading up to the incident but not enough to impair his ability to keep a proper lookout. He was in a hurry to get home and out of the rain. The fall occurred on the driveway of the premises run by Lifeline. The area of the fall was poorly illuminated due to the absence of a nearby street light.

The plaintiff was well aware of the protruding paver.

He struck his foot on the raised paver and lost his balance.

The plaintiff was unable to walk after the accident and had to crawl to the shelter of a nearby tree until someone found him which did not happen for many hours.

Evidence was led that the respondent engaged in a system of regular inspection of the premises, noting possible danger areas and organising remedial work by a tradesman or volunteer if necessary.

It was accepted that the passage of vehicles over the pavers caused them to become uneven and accepted that this occurred to the extent that it was recognised by the respondent as creating a risk. The pavers were later replaced with pebblecrete.

AT TRIAL

The plaintiff had merely encountered a normal hazard of daily life on that evening ie unevenness on a road or footpath. This is accepted as an everyday aspect of life. Although the respondent knew of the hazard there was no duty on it to remove a slight and obvious danger. Although it was a foreseeable risk, the law of negligence would depart from the concept of fault according to everyday standards if it imposed a duty to protect pedestrians on footpaths against such a hazard. Skoien AJ drew on the decisions of Neindorf v Junkovic [2005] 222 ALR 631 and Ghantous v Hawkesbury City Council [2001] 206 CLR 512.

ON APPEAL

The plaintiff's Counsel on appeal attempted to argue that the trial judge had erred in not determining Mr Ellis' claim on the basis that the respondent's duty to him was that owed by a commercial occupier to members of the public: Australian Safeway Stores Pty Ltd v Zaluzna [1987] 162 CLR 479 rather than the less demanding duty owed by an occupier to entrants of "ordinary residential premises": Neindorf v Junkovic.

This was rejected by the Court of Appeal.

The Court distinguished the cases of Pascoe v Coolum Resort Pty Ltd [2005] QCA 354 involving a fall during the course of the plaintiff's employment and Turnbull v Alm & Anor [2004] NSWCA 173 involving a fall by a pedestrian on a footpath owned by a shopkeeper.

The respondent was not the occupier of the land. However, the primary judge had generously assumed that a duty of care was owed by the respondent as if it had occupied the driveway, namely a duty of care under the ordinary principles of negligence to take reasonable care for the safety of entrants. Here the magnitude of the risk and the degree of probability of an accident was so slight that reasonableness did not require any corrective action on behalf of the respondent.

Although appreciated by both Courts that the Civil Liability Act 2003 (Qld) applied the case did not require relevant departure from the common law principles.

This case can be added to the growing body of authority supporting a finding of no breach of duty for everyday hazards on footpaths.

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Ten Major Developments In Commercial Litigation In 2008

January 11th 2009 12:11

Economic conditions, court decisions, and a new Federal Government all will generate changes during 2009. The following are the top ten developments according to Clayton Utz Solicitors.

Top Ten Development Commercial Litigation

1. Economic downturn triggers a rise in litigation

As the economy slowed in 2008, litigation departments became increasingly busy. Demand for litigation has traditionally been counter-cyclical. The conventional wisdom is that in boom times, failed deals are simply put down to the cost of doing business but when the economy comes off the boil, companies are more likely to litigate. With deals scarce on the ground, companies are more inclined to take action to recover their losses.

In addition to advising on failed deals, litigation teams have been kept busy by insolvency-related litigation and actions mounted by aggrieved investors, unaccustomed to margin calls and investment losses.

2. The rise and rise of litigation funding

2008 was a bumper year for litigation funders. The Aristocrat class action was settled for a record $145 million and agreements were signed to fund class actions against Centro, ABC Learning, Octaviar and Pan Pharmaceuticals, just to name a few.

Those companies, which fund class actions in exchange for a share of any settlement or damages award, are having a dramatic impact on commercial litigation. Working with plaintiff lawyers, they have essentially developed a new type of litigation: the financial sector class action. Boardrooms are now on notice that it is not just the regulators who are scrutinising their company announcements, financial statements and share price movements. Litigation funders are constantly on the look out for their next class action.

3. Last year of the Gleeson-led High Court

August 29 marked the end of the Gleeson era, as the 11th Chief Justice of the High Court reached the constitutional retirement age. The Gleeson court will be fondly remembered by the business community. Gleeson promoted consensus on the bench which resulted in over a decade of stability and certainty in the law affecting commercial relations.

Gleeson's legacy also includes returning the principle of personal responsibility to the law of negligence and confirming the expanded jurisdiction of the Commonwealth through the Workchoices decision.

4. Sub-prime litigation

The fallout from the sub-prime crisis triggered an explosion of litigation in the USA in 2008. We saw a similar spike in litigation after the dot com bust in 2000. What is different this time around is the range of parties that are being sued. Actions have been brought against essentially every participant in the securitisation process from mortgage originators and real estate agents, to ratings agencies, issuers of sub-prime backed bonds and accounting firms.

Sub-prime litigation in Australia has been more confined. Actions have been brought against companies caught out by the liquidity freeze and at least one arranger of structured finance products. Recently, there has also been talk of actions being launched against ratings agencies.

5. Spotlight on the cost of litigation

How to keep litigation costs under control was again a key issue in 2008. In the shadow of the C7 appeal, various proposals were mooted to discourage mega-litigation including abolishing the tax deductibility of legal costs. The review of the Victorian civil justice system recommended a range of measures to reduce the cost of litigation such as narrowing the scope of discovery. Such a proposal would be welcomed by clients and lawyers alike. The forensic benefit of complex discovery processes rarely justifies the costs involved and unless this process can be streamlined, parties will be increasingly reluctant to litigate.

We would not be surprised if the courts take action on this issue. We predict that over the next twelve months we will see a trend towards more active case management by the courts including an increase in orders for compulsory mediation prior to discovery.

6. A new government

Faced with a severe financial crisis in its first full year on the job, the Rudd government resisted the temptation to over regulate. It will however, be interesting to see what flows from the government's review of credit ratings agencies and its survey of company directors. With many in the media calling for greater regulation of the financial services industry, we could see the development of new laws and causes of action in 2009. In terms of its broader legislative agenda, significant amendments were made to the Trade Practices Act and the Attorney General, Robert McClelland, took steps towards a uniform national approach to proportionate liability.

7. Push for an action for invasion of privacy gathers pace

The debate about personal privacy was brought to a head in 2008, with the Australian Law Reform Commission recommending the introduction of a statutory cause of action for a serious invasion of privacy. Calls for greater protection of individuals' privacy have grown louder since defamation laws were watered down in 2005. Under the national defamation laws, the media are free to publish anything that is true, no matter how personal. It will be interesting to see whether the government will be prepared to adopt the ALRC's recommendation and risk upsetting powerful media lobbies. If the government does not act, we predict that a common law action will be developed by the courts.

8. Protecting privilege

The protection of client legal privilege was the sleeper issue of 2008. Since the decision in the Federal Court case of Rich v Harrington was handed down at the end of last year, claims for privilege over communications with in-house lawyers are being far more closely scrutinised by the courts. There is a plain risk for companies that commercial strategy will be revealed through the loss of privilege over internal communications.

In this environment, the time is right for businesses to conduct a privilege audit. To reduce their exposure to litigation risk, companies now need to review their internal structures and processes to ensure in-house lawyers have sufficient independence to maintain claims for privilege.

9. Criminalising cartels

The headline issue in trade practices law in 2008 was the release of draft laws to criminalise serious cartel conduct. If the draft legislation is ultimately enacted, offenders will risk gaol sentences of up to 5 years and fines of up to $220,000 for individuals and $10 million for corporations. The expansion of white collar crime provisions into the trade practices field will bring Australia in to line with many overseas jurisdictions, including Germany, the US and the UK.

10. An emboldened regulator?

After enduring accusations over the years of being too conservative in its approach to prosecuting corporate misfeasance, the Australian Securities and Investments Commission took the bold move of launching a $200 million action against KPMG over its auditing of various Westpoint entities. Some commentators have suggested that this marks the emergence of a more emboldened regulator. On the whole, 2008 was a litigious year for ASIC. The corporate regulator's prosecution of former directors of James Hardie went to trial in September and it has 16 actions relating to the Westpoint collapse on foot.

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State Of Mind And Waiver Of Privelege

January 10th 2009 11:49

Do you impliedly waive privilege in your legal advice by putting in issue your state of mind? Generally speaking, two distinct approaches emerged, a broad view and a narrower view, but recently the narrower view has prevailed. The NSW Court of Appeal recently signalled however that it might be prepared to take a broader view of issue waiver when a party has put in issue his or her state of mind.

Key Point

* If the Court of Appeal's comments are followed, framing a case might be enough to inadvertently waive privilege.

Broad vs narrow

An example of the broad view is the decision in Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152. BT claimed that Telstra had engaged in misleading and deceptive conduct which induced it to enter into an agreement. Telstra then sought discovery of legal advice received by BT, on the basis that the advice went to BT's state of mind when it entered into the agreement. Even though BT did not refer to any legal advice, the Court found that privilege had been waived.

The High Court then handed down its decision in Mann v Carnell (1999) 201 CLR 1. By focusing on the notion of inconsistency, Mann v Carnell caused a shift away from the broad formulation in Telstra. For example, in Liquorland (Australia) Pty Ltd v Anghie (2003) 7 VR 27 Justice Byrne held that the putting in issue of a relevant state of mind (one of reliance or otherwise) is merely the starting point for an examination of whether privilege has been waived. The chronological coincidence of the legal communication and the establishment of that state of mind does not of itself determine the question.

The comments in Archer

Council of the New South Wales Bar Association v Archer [2008] NSWCA 164 concerned the application of waiver in the context of certain provisions of the Legal Profession Act 1987 (NSW). In that case Justice Hodgson (with Justice Handley agreeing) made certain general obiter observations about the common law principles of issue waiver:
"What would involve inconsistency and relevant unfairness is the making of express or implied assertions about the content of the privileged communications, while at the same time seeking to maintain the privilege. In this respect, it may be sufficient that the client is making assertions about the client's state of mind, in circumstances where there were confidential communications likely to have affected that state of mind" [emphasis added].

Is this a return to the broad view in Telstra, and perhaps a widening of the scope of that principle beyond Telstra and certainly beyond Mann v Carnell?

"Likely to have affected"

Previous cases referred to the likelihood of legal advice having contributed to a state of mind in the context of the dates and descriptions of specific known documents. But what does "likelihood" mean here? It could have two meanings:

* it could qualify the existence of confidential communications; or

* it could qualify the probability of those communications having affected the privilege holder's state of mind.

If it refers to the likelihood of the existence of the documents, a court would then need to determine the likelihood that a party has obtained legal advice, which would throw up some practical problems:

* Should a court assume that a large corporate entity is more likely to have received legal advice than an individual litigant?

* An affidavit of documents might not reveal the existence of legal advice because of the practice of using a general catch-all to describe privileged documents, so a notice to produce might be necessary - but neither of these will reveal if oral advice has been taken. How then should a court determine if it has been?

If "likely" is intended to qualify the impact of a privileged communication on the privilege-holder's state of mind, additional complex questions arise:

* Is the test an objective or subjective one?

* What degree of likelihood is required?

* How is the test to be applied where there is more than one decision-maker, for example, several company directors?

A return to the broad old days?

It may be that the comments of the Court of Appeal in Archer were intended to be read more narrowly. This would be consistent with earlier decisions of Justice Hodgson appearing to support the narrow view.

The narrow view certainly has much going for it as a matter of principle; not only does it protect the status of privilege as an essential common law right, it is consistent with the test in Mann v Carnell. The necessary unfairness stems from the inconsistency which would arise if a privilege-holder were allowed on the one hand to use privileged material to advance his or her position, while at the same time asserting privilege over that material.

If, however, the Court is signalling that it is prepared to reconsider the position, and the broader view were to become accepted again, there could be serious ramifications for litigants. It could be that merely pleading a cause of action which is based on reliance (for example, a section 52 TPA claim) could be said to be inconsistent with a claim for privilege, even though the privilege-holder has not disclosed part of legal advice - indeed, he or she would not be seeking to rely on any advice.

It is clear that, nearly a decade after Mann v Carnell, the profession would benefit from a clarification of these issues at appellate level.

Original article by Clayton Utz

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Breach Of Confidence Claims And Awards Of Damages

January 9th 2009 11:31

Previously, the Victorian Court of Appeal awarded damages for the distress caused by the unauthorised showing of a private sex tape. It is worth looking at the decision in Giller v Procopets [2008] VSCA 236, and its potential consequences, in more detail.

Key Points

* Damages are now available for pure mental distress for breach of confidence claims, where the essence of the claim is that there has been a misuse of private information. This could have important consequences for the media in Australia.

* In this case, the Victorian Court of Appeal chose to adapt the existing action of breach of confidence rather than recognise a novel action for breach of privacy.

In Giller v Procopets, the Victorian Court of Appeal declined to decide whether a common law action for breach of privacy currently exists in Australia. However, it is the first Australian appellate decision to follow a line of English authority allowing damages for emotional distress for breach of confidence, in cases where that action is akin to a tort of "misuse of private information". These cases have most commonly involved the tabloid media publishing surreptitiously obtained photographs of celebrities.

Accordingly, the decision is important for both its impact on the approach taken to developing privacy law in Australia, and its consequences for Australia's media and others who have the power to disclose "private information".

The parties and the relationship of confidence

Mr Procopets and Ms Giller were in a de facto relationship. After they ceased living together, they continued to have sex. Mr Procopets filmed a number of these sexual encounters on a hidden video camera. At first, Ms Giller was unaware of the filming but later she acquiesced in it. After the relationship deteriorated, Mr Procopets attempted to show the videos to several of Ms Giller's family and friends. Although several refused to watch it, he did show the video to the mother of one of her friends. Further, he phoned her employer and said that he had a video of her engaging in sexual activity, in circumstances where (he said) it was unethical for her to do so.

Shortly thereafter, Mr Procopets was arrested and a restraining order (which included a restraint on the distribution of the videos) was taken out. However, six months later Mr Procopets showed the video to another woman he was in a relationship with and his bail was revoked.

Ms Giller sought damages for publication of the videos as part of a broader civil action (including a de facto property dispute and civil claims for assault). Ms Giller relied on three causes of action: breach of confidence; breach of privacy; and intentional infliction of mental harm. We deal only with the actions for breach of confidence and breach of privacy.

Breach of confidence

The Court of Appeal overturned the trial judge's decision that damages could not be awarded for "mere distress" not amounting to psychiatric injury. Justice Neave, with whom President Maxwell agreed, said that because "the Australian position [was] at large on this issue" the Court could, in line with one suggested approach in ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, develop the action for breach of confidence by following the English decisions in Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457, Douglas v Hello! Ltd [2006] QB 125, and Cornelius v De Taranto [2001] EMLR 12. While acknowledging these decisions were based in part on the right to privacy in Article 8 of the European Convention and the Human Rights Act 1998 (UK), Justice Neave thought that to find damages were not available, "in circumstances where no other substantial remedy is available, would ... illustrate something was wrong with the law". Accordingly, she held that damages for distress should be available "where the essence of the plaintiff's case is that he or she has been embarrassed by the exposure of private information."

Justice Ashley agreed, citing amongst his reasons the lack of any conflicting authority, the anomalous situation of an injunction being obtainable where damages were not, and the fact that similar damages would be recoverable in an action for defamation.

Justice Neave and President Maxwell awarded damages of $40,000, including $10,000 in "aggravated damages" because Mr Procopets had acted with the "deliberate purpose of humiliating, embarrassing and distressing Ms Giller". However, Justice Ashley would have awarded no more than $27,500, including $7,500 for aggravation. None of the judges awarded exemplary damages, citing both the decision in Harris v Digital Pulse (2003) 56 NSWLR 298 and the fact that Mr Procopets had already been punished by the criminal law, as a bar to doing so.

Breach of privacy

At first instance, the trial judge had held that the common law had "not developed to the point where the law in Australia recognises an action for breach of privacy" ([2004] VSC 113 per Justice Gillard). Just as the High Court did in ABC v Lenah Game Meats Pty Ltd, the Court of Appeal sidestepped the issue, stating that it was unnecessary for it to decide this point in light of its findings in relation to the action for breach of confidence. In doing so, Justice Ashley commented that "the development of such a tort would require resolution of substantial definitional problems... which might contraindicate such a development". Justice Neave simply commented on the divergent approaches which had been adopted in England and New Zealand, the two Australian first instance decisions which have recognised an action for breach of privacy, Grosse v Purvis [2003] Aust Tort Reports ¶ 81-706 and Doe v ABC [2007] VCC 281, and the recommendation of the Australian Law Reform Commission to develop a statutory cause of action.

The significance of the decision

In a legal sense, the decision is important because it is the first time an Australian appellate court has accepted the High Court's invitation to adapt a recognised form of action to "identify and protect interests of a kind which fall within the concept of privacy"1 Whether the courts continue with this approach, or whether either a senior level court or the legislature bites the proverbial bullet and develops an action for breach of privacy remains to be seen.

The key aspect of the decision was the willingness of the Court to award damages for emotional distress, falling short of a recognised psychiatric injury. In a practical sense, this is important because it removes a major obstacle to individuals suing for this type of breach of confidence; after all, distress, hurt and embarrassment are likely to be the most common human reactions to the misuse of private information. This is particularly important for Australia's tabloid media, who now risk damages awards for the distress caused by publishing long-lens photographs, footage from hidden cameras or other "private information". This is in addition to the potential damages they had previously faced for trespass or defamation, albeit using these causes of action had some considerable difficulties. This decision represents an important swing back of the legal pendulum, from freedom of the press to an individual's right to privacy, following several years of increased reporting powers (eg. the removal in some jurisdictions of the need to show publication was in the public interest for a truth defence in defamation).2

Although the decision removes the major legal obstacle to the use of breach of confidence as a de facto tort of misuse of private information, it should be noted that there are still a number of practical obstacles to its widespread use in Australia, particularly where the media is concerned.

One barrier is likely to be the relative cost of bringing such a claim, compared to the potential damages;3 particularly given that it appears that exemplary damages will not be available.

A second potential barrier might be the need for an initial confidential relationship. In reality, it is unclear whether an initial confidential relationship is still required to found the action for breach of confidence in Australia,4 or whether we have already taken, or will in the future go down, the English path of imposing "a 'duty of confidence' whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential" (Campbell v MGN [2004] 2 AC 457). If an initial confidential relationship is still required, this will often act as a practical barrier to claims made against the media, who will rarely be in such a relationship with the subject/owner of the information (although sometimes they may have received the information from someone who was).5 If an initial confidential relationship is not required, as Justice Hampel found in the Victorian County Court case of Doe v ABC,6 then the implications of this case for the media could be significant.

Finally, if the Australian courts do continue to develop breach of confidence to deal with the misuse of private information, in cases where it is applied to the media it is likely they will try to balance the often competing rights of privacy and freedom of the press. In England (and other jurisdictions such as New Zealand and the USA), this has resulted in allowing the publication of otherwise private information, if it is of legitimate public interest (eg. the publication of details of an affair of a politician who had run for office on a platform of family values).

Footnotes

1 Such an approach was advocated by Justices Gummow and Hayne, and Chief Justice Gleeson, in ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199. The previous two Australian decisions on the issue were at a county/district level: See Doe v ABC [2007] VCC 281 and Grosse v Purvis [2003] Aust Tort Reports 81-706.

2 For a discussion of this issue, see Peter Keel & Norm Lucas, 'Managing Reputation - An Industry' in The Sydney Papers¸ 20(1), Summer 2008, 13.

3 In Grosse v Purvis $30,000 was awarded for wounded feelings following stalking and harassment. In Doe v ABC, $25,000 was awarded for distress, after details of a rape victim's identity were published by the ABC.

4 Because this case clearly involved a confidential relationship (ie. a private sexual relationship), the Court was not required to analyse whether an initial confidential relationship is still a necessary element for a breach of confidence in Australia. The English position was noted in footnote 391 of Justice Neave's judgment.

5 Such a requirement was removed in England in AG v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109.

6 Justice Hampel relied, at least in part, on the comments of Chief Justice Gleeson in ABC v Lenah Game Meats to support her view.

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Second Thoughts Do Not Justify Reinstatement

January 7th 2009 10:08

In Fitzsimmons and Comcare [2008] AATA 919, the Administrative Appeals Tribunal (Tribunal) rejected Mr Fitzsimmons's application to reinstate his claim on the basis that it was 'dismissed in error' under section 42A(10) of the Administrative Appeals Tribunal Act 1975 (AAT Act).

BACKGROUND

Mr Fitzsimmons appealed a decision by Comcare that it was not liable to pay compensation for viral hepatitis B, allegedly contracted as a result of his employment with the Australian Customs Service.

In August 2006, Mr Fitzsimmons's lawyer, Mr Stockley, wrote to the Deputy Registrar of the Tribunal seeking withdrawal of his application on the basis that there was insufficient evidence to directly support the claim.

On 25 August 2008, Mr Fitzsimmons wrote to the Tribunal requesting that his application be reinstated.

Mr Fitzsimmons argued that the application should be reinstated on the basis that it had been dismissed in error because Mr Stockley had not investigated all possible causes of hepatitis B.

Mr Fitzsimmons also argued that his withdrawal was also compounded by his depression, which affected his understanding of the withdrawal.

DECISION

The Tribunal found that Mr Fitzsimmons had full knowledge of the reasons and consequences of withdrawing his application.

In coming to this conclusion, the Tribunal considered the following matters:

* Mr Fitzsimmons's reliance on the authority in Re Stevenson and Comcare [2005] AATA 870 that if an applicant has an arguable case, they should not be denied the opportunity to have their claim reviewed.
* The scope of section 42A(10) of the AAT Act extends to errors by a party or a party's representative: Goldie v Minister of Immigration and Multicultural Affairs [2002] FCAFC 367.
* Whether Mr Stockley was at fault for not fully investigating the possibility that the hepatitis B may have been contracted through sweat exchanges.
* Whether Mr Fitzsimmons had an awareness of the consequences of withdrawing his application and had given fully informed consent to the withdrawal.
* The relevance of Mr Fitzsimmons's depression.

The Tribunal noted that Re Stevenson was a case that was decided in relation to applications for extension of time rather than applications for reinstatement.

Despite the fact that his solicitor had not fully investigated all possible ways in which the virus could have been contracted, the Tribunal considered that at the time of the withdrawal there 'was no decisive evidence either way'. Therefore, it noted, Mr Stockley had recommended that Mr Fitzsimmons pursue a claim for depression instead.

The Tribunal found that Mr Fitzsimmons accepted Mr Stockley's advice, and had discussed it with his wife. The Tribunal did not accept that any subsequent medical evidence, or legal advice to the contrary, did not amount to an error in relation to the decision to withdraw the application.

Mr Fitzsimmons's depression was not found to have influenced his knowledge of the consequences of withdrawal.

IMPLICATIONS

This case demonstrates that merely having second thoughts about a decision to withdraw is not a sufficient ground to have a claim reinstated. If an applicant is fully aware of the reasons for withdrawal and its implications and proceeds to withdraw the application in that knowledge, the Tribunal is unlikely to allow reinstatement of their application.

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Jurisdiction To Review An Out Of Time Claim

January 5th 2009 09:58

In Bain v Military Rehabilitation and Compensation Commission [2008] AATA 884, the Administrative Appeals Tribunal (Tribunal) was satisfied that it had jurisdiction to review decisions which the Commission had conceded could be reviewed out of time.

BACKGROUND

Mr Bain was injured during his Army Service in October 1969. Claims for compensation and other relevant records were lost, however determinations had been made on 19 April 1971 and 26 November 1975 rejecting the claims for compensation. A request made in 1999 for an extension of time to request a reconsideration of the determinations was subsequently refused.

By a decision given on 27 September 2006 (Bain and Military Rehabilitation and Compensation Commission [2006] AATA 822), the Tribunal made a provisional decision on the following matters:

* The decision dated 16 May 1999 not to allow an extension of time within which Mr Bain could request reconsideration of determinations made in 1971 and 1975 is a reviewable decision.
* Mr Bain made a claim for compensation on or about 10 December 1969 in which he referred only to his knee collapsing when he was in his living quarters and did not refer to jumping from the back of a truck.
* Mr Bain made a further claim for compensation on or about 19 November 1974 in which he referred to an injury sustained as a result of two events, namely jumping from the back of a truck and the knee collapsing when he was in his living quarters.

By a further decision given on 21 August 2008 (Bain and Military Rehabilitation and Compensation Commission [2008] AATA 730), it was decided that Mr Bain had not given an acceptable explanation for the delay in seeking review of the determination of 26 November 1975. It was found that Mr Bain had rested on his rights and did not pursue his claim for very many years. In all the circumstances, the Tribunal was not persuaded that it would be just to grant an extension of time in respect of the 1975 determination.

The position relating to the 1971 determination was noted to be different, as Mr Bain provided an acceptable explanation for the delay in pursuing his claim. Whilst the length of delay was considered to be extreme, accepting that there were special circumstances, the Tribunal did not think that the extent of prejudice suffered by the Commission was as great as might ordinarily result from such an extreme delay. It was therefore considered that not granting an extension of time would cause Mr Bain to suffer much greater prejudice from being unable to pursue what, on the information presently before the Tribunal, was apparently a meritorious claim.

A formal decision was delayed as the parties had requested the opportunity to consider whether the Tribunal should remit this matter to the Commission for reconsideration pursuant to section 42D of the Administrative Appeals Tribunal Act 1975.

DECISION

By its decision dated 3 October 2008, the Tribunal noted that, rather than the parties making further submissions as to whether the matter should be remitted for reconsideration under section 42D, the Commission had suggested that, in the unusual circumstances of the present matter, the Tribunal should proceed with the substantive application for review of the decision dated 19 April 1971. Mr Bain agreed with this proposed course of action. The Tribunal was satisfied that it had the jurisdiction notwithstanding that the Commission had not reconsidered the primary decision on the merits. That was on the basis that there had been a refusal to consider the request for reconsideration, which constitutes a deemed decision reviewable by the Tribunal.

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