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7.3.3 Mistake, Absence from Australia or Other Reasonable Cause - 1930 Act
The distinction between 'ignorance' and 'mistake' is not very important when considering late claims under the SR — CA or the 1971 Act. It is however very significant under the 1930 Act as that Act made no mention of 'ignorance', ignorance was not included in 'mistake', and it does not provide an excuse for a late claim.
In all cases in which the provisions of S16 of the 1930 appear to be relevant, Delegates should make an attempt to obtain the discharge statement completed by the employee, usually just before the time of discharge from the ADF. Members of the ADF were often asked on the discharge statement whether they had claimed compensation or whether they intended to lodge a claim.
Regardless of whether the member answered 'Yes' or 'No' to such a question, it would obviously be unacceptable were the member to claim later that he or she was unaware of the right to claim compensation if the relevant question was in fact answered and the discharge statement signed by the member. A 'Yes' answer to such a question could also be useful in alerting a Delegate to the possibility that there may already have been a claim (perhaps decades earlier) which may have been determined at the time. A search for an old compensation file could in such circumstances avoid much unnecessary investigation in relation to the more recent claim.
In order to establish whether the failure to give notice and/or to lodge a claim as required by the 1930 Act was occasioned by 'mistake, absence from Australia or other reasonable cause', it is essential in all relevant cases that the claimant be asked to provide a statement detailing his or her reasons for not giving notice or claiming compensation as required. When seeking the employee's or claimant's reasons for not giving notice or claiming 'in time', it is important that employees or claimants should be left to state their reason(s) in their own words. In such cases, a request should be sent to the employee using the appropriate standard letter.
In many of the cases considered under S16 of the 1930 Act, the injured employee will offer, as an excuse for failing to claim within the six month period allowed, the fact that he or she was unaware at the relevant time of his or her right to claim compensation. This ignorance of a possible right to compensation generally cannot constitute 'mistake'.
In Commonwealth of Australia v Connors (1989), the Federal Court found that:
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 claim, does not constitute, by itself, a mistake and cannot, by itself, constitute other 'reasonable cause'. (at 9 ALR 395)
The ambit of 'mistake' was discussed by the Federal Court in Telstra Corporation Limited v Roycroft (1997):
The authorities establish the following propositions:
- A person who is not aware of a right to claim compensation at all is not mistaken about the right, but ignorant of it: Roles v Pascall and Sons 1911 1 KB 982.
- A person who knows that he has a right to claim compensation for one sort of injury, but no idea whether or not he has a right to claim for another, is not mistaken as to his right to claim for the second type of injury, but is ignorant of it: Commonwealth of Australia v Connors (1989) 86 ALR 247.
- A person who knows he has a right to claim compensation for one sort of injury, and wrongly believes that he has no right to claim for another type of injury, is mistaken as to the right to claim for the second type of injury: Stevenson v Metropolitan Meat Industry Commission (1936) 37 SR (NSW) 109.
- It follows from these authorities that a person who knows he has a right to claim compensation for the particular injury and knows that the time for making the claim is limited, but wrongly believes he has more time to make a claim than the Act allows, is mistaken as to the time for making the claim.
As these authorities show, there is a thin line between 'mistake' and 'ignorance'. If a person acts on the basis of knowledge of the Act and that knowledge is wrong, or the facts upon which the person relies are wrong, then the person has made a mistake. If a person acts without any knowledge about the Act or an aspect of it, and consequently does not know whether or not it applies, then the person is ignorant.
Consequently, the defence that a claimant was 'unaware' or 'ignorant' of his/her responsibility to give notice and to lodge a claim for compensation as required by the 1930 Act does not constitute either 'mistake' or 'other reasonable cause'.
Where the exception is applied for 'other reasonable cause', the delegate should document the basis upon which the discretion was exercised.
In Banks v Comcare (1996), the Federal Court discussed 'other reasonable cause':
The expression 'reasonable cause' has been held to refer to some act or omission which operated to prevent the giving of notice and one which, in the circumstances prevailing, is consistent with a reasonable standard of conduct, of such a nature that it might be expected to delay the giving of the necessary notice or claim: see Black v City of South Melbourne (1963) VR 34, 38; Quinlivan v Portland Harbour Trust (1963) VR 25, 28.