Hilda McMillan v Territory Insurance Office [NTR]

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Gallop J.
• Judgment Date: 23 August 1988
• Docket Number: No. M11 of 1986
• Date: 23 August 1988

(1988) 57 NTR 24

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

Gallop J.

No. M11 of 1986

Hilda McMillan

and

Territory Insurance Office

Counsel for the Applicant: A. Sullivan

Counsel for the Respondent: G. Hiley QC

Cases applied:

Braedon v Hynes (unrep. NT Supreme Court 24/7/86)

McMahon and Tapau v The Board of the Territory Insurance Office (unrep. NT Supreme Court 2/2/84)

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 60 ALJR 560

Sophron v The Nominal Defendant (1957) 96 CLR 469

Cases cited:

Aldison v Newroyd Mill Limited (1925) LT Vol 134–171

Bresatz v Prizibilla (1962) 108 CLR 541

Blunt v Blunt (1943) AC 517

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Evans v Bartlam (1937) AC 473

Gardner v Jay (1885) 29 Ch D 50

Graham v Baker (1961) 106 CLR 340

Hall v The Nominal Defendant (1966) 117 CLR 423

Harris v Metropolitan Water, Sewerage and Drainage Board (1940) 57 WN (NSW) 42

Hayward v Westleigh Colliery Co Limited (1915) AC 540

Irving v Carbines (1982) VR 861

Jenkins v Bushby (1891) 1 Ch 484

Kathopoulis v The Board of Territory Insurance Office (1982) 17 NTR 41

R v Quinn; Ex parte Consolidated Food Corporation (1977) 16 ALR 569

Redding v Lee (1983) 47 ALR 241

Sophron v The Nominal Defendant (1957) SR (NSW) 59

Thiess Properties Pty Ltd v Page (1980) 31 ALR 430

Van Lier v McDonald (unrep. ACT Supreme Court 9/6/82)

Victa Ltd v Johnson (1975) 10 SAS R 496

Yammine v Kalwy (1979) 2 NSWLR 151

Cases discussed:

Keating v Elvan Reinforced Concrete Co Ltd and Another (1967) 3 All ER 611

Lawrence v Mathison and Another (1981) 11 NTR 1

Sinclair v Bonnefin (1968) 13 F.L.R. 164

Case distinguished:

Allsop v The Incorporated Law Institute (1944) 44 SR 132

Compensation — Claim for loss of earning capacity arising out of injuries sustained in a motor vehicle accident — time for making claims — principles applicable to exercise of discretion to refuse to consider a claim out of time — Motor Accidents (Compensation) Act 1979 (NT) ss. 12(1), 13, 27(2), 28, 29, 30 and 31

Compensation — Claim for loss of earning capacity — necessity to establish a pre-existing earning capacity

ORDER

1. The Tribunal, having considered the claim, determines that the applicant is not entitled to compensation for loss of earning capacity in respect of personal injuries suffered by her in the motor vehicle accident on 8 February 1981.

JUDGE1

1 This is a reference to the Motor Accidents (Compensation) Appeal Tribunal (the Tribunal) by a person aggrieved (the applicant) by the failure of the Board of the Territory Insurance Office (the Board) to make a determination in her favour in respect of her claim for compensation under the Motor Accidents (Compensation) Act (the Act).

2 The Tribunal is constituted by s. 28 of the Act. S. 29 provides the right to apply to the Tribunal by way of reference. S. 29(3) of the Act provides that the Tribunal shall conduct such hearings into the matter as it thinks fit and may make such determination as the Board could have made thereon as the Tribunal considers proper in the circumstances, having regard to the intention of the Act. By s. 29(4) a hearing conducted by the Tribunal is a hearing de novo.

3 S. 30 provides that the Tribunal's decision is final and not reviewable in any Court of law by prerogative writ or otherwise.

4 There is no dispute that the applicant was involved in a motor vehicle accident in the Northern Territory on 8 February 1981, as a result suffered injuries to the left arm, and she was a resident of the Northern Territory at the time. She claims that she first became aware of her entitlement to claim compensation under the Act on 15 January 1986. Her application for compensation was made on 21 April 1986.

5 By determination dated 30 June 1986 the General Manager of the Territory Insurance Office determined:

(1) that the application for benefits was made 6 months after the date of the accident;

(2) that the application for benefits was made later than 6 months after the date of the accident; and

(3) as the delegate of the Board he declined to consider the claim pursuant to s. 31 of the Act.

S. 31 reads:

‘31. TIME FOR MAKING CLAIMS

(1) A claim —

(a) for a benefit; or

(b) for the variation of a benefit,

under this Act shall be made as soon as practicable after the accident in or as a result of which the death or injury giving rise to the claim for a benefit, or the change in circumstances giving rise to the claim for variation of the benefit, occurred.

(2) The Board may refuse to consider -

(a) a claim in respect of an accident; or

(b) a claim for the variation of a benefit, made later than 6 months after the date of the accident or the occurrence giving rise to the claim for variation, as the case may be.’

6 By telex dated 29 July 1986 the applicant requested that the General Manager refer the matter to the Board for its determination pursuant to s. 27(2) of the Act. By determination dated 3 September 1986 the Board upheld the General Manager's determination of 13 June 1986.

7 The first question for this Tribunal is whether to exercise the discretion which the Board had pursuant to s. 31(2) of the Act and consider the applicant's claim in respect of the accident. Clearly, the claim was not made within 6 months after the date of the accident and the Board had a discretion, which it exercised by refusing to consider the claim. This Tribunal is to review that exercise of discretion. As the hearing before this Tribunal is a hearing do novo, it is not a case of this Tribunal adjudicating upon the correctness or otherwise of the exercise of the discretion by the Board. Rather it is a case of the Tribunal, standing in the same position as the Board, deciding whether it will exercise its discretion so as to bar the applicant from making the claim.

8 Subject to his description of the reference to the Tribunal as an ‘appeal’, which in my opinion is arguable, I agree with what O'Leary J., as he then was, said in Kathopoulis v The Board of Territory Insurance Office (1982) 17 NTR 41 that the reference is essentially administrative in nature. It is a reference from one administrative authority to another administrative authority.

9 The fact that the Tribunal is constituted by a Judge of the Supreme Court does not detract from the plainly administrative character of the Tribunal. Nor does the fact that the Judges of the Supreme Court may make rules regulating the practice and procedure of the Tribunal and other matters mean that in performing its administrative functions the Tribunal is exercising judicial power. Such procedural powers are commonly conferred on administrative tribunals although the appointment as a judge of the court may be thought to add to the Tribunal a superficial ‘trapping’ of curial decision-making. The trappings of judicial decision-making are not, however, necessarily indicative of the existence of judicial, as distinct from administrative, power ( R v Quinn; ex parte Consolidated Food Corporation (1977) 16 ALR 569 at 574–576). Many tribunals whose functions are purely administrative are under a duty to act judicially, that is to say, with judicial detachment and fairness ( Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577).

10 The role of the Tribunal cannot be better described than in the words of Bowen C.J. and Deane J. in Drake v Minister for Immigration and Ethnic Affairs, supra, when speaking of the Administrative Appeals Tribunal:

‘ The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.’

11 My present task is to ascertain the meaning of the phrase ‘as soon as practicable’ as used in s. 31(1) and to consider its relevance to the exercise of the discretion conferred by s. 31(2). The phrase ‘as soon as practicable’ is designed to impose a reasonable practical time limit after the subject accident for making a claim under the Act. What is a reasonably practicable time must vary according to circumstances. No doubt all the surrounding circumstances relative to the claimant must be taken into consideration, as in every other case where it falls to a Tribunal to decide what is reasonable. Those circumstances would include the physical and mental capacity of the injured person at the time in question, his degree of business knowledge, the nature and time of his enquiries, the result of such enquiries, any difficulties encountered, the magnitude of any injuries, whether they had stabilised, and such similar matters.

12 Various situations are contemplated by s. 31. A claim may have been made as soon as practicable after the accident and within the period of six months. In such a case the Board would be obliged to consider the claim. A claim may have been made within six months but not as soon as practicable. The Board would be obliged to consider such a claim and, if it deemed that the claim was not made as soon as practicable, to reject it as being out of time. But such a claim must be considered. The Board would have no discretion to refuse to consider it.

13 A claim may be made later than six months after an accident. The Act does not provide any guidelines for the exercise of the discretion to refuse to consider such a claim. The exercise of the discretion may be quite draconian where the Board refuses to consider the claim. On the other hand, one could well understand a decision to consider such a claim, notwithstanding that it was made later than six months after the accident. How then is the discretion to be exercised?

14 It was submitted on behalf of the respondent that the discretion should...