Mr Leach sought to challenge the interpretation and application of the primary judge of s 53 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). Mr Leach made a claim under the SRC Act for a mental injury he alleged was caused as a result of his employment with the Australian Federal Police prior to the termination of his employment in 1997. S 53(1)(a) of the SRC Act requires a notice in writing of an injury be given to the relevant authority as soon as possible after the employee becomes aware of the injury. However, by operation of s 53(3) of the SRC Act, a notice that fails to comply with the timing requirement of s 53 will be taken to nonetheless comply with this section if (i) the relevant authority would not be prejudiced by the notice being treated as sufficient notice, or (ii) the failure of the claimant to give notice resulted from (relevantly) ignorance, mistake or other reasonable cause.
Comcare, as the respondent, refused to recognise the claim as complying with the requirements of s 53 of the SRC Act and determined that it was prejudiced by Mr Leach for not having given the notice.
The Federal Court of Australia dismissed the appeal from the Administrative Appeals Tribunal, which affirmed the respondent’s determination. On appeal, the Full Court of the Federal Court found that the FCA and the Tribunal correctly found that Mr Leach failed to provide notice as soon as practicable and that he failed to establish evidentiary onus of establishing fact. The Court also found that the Tribunal correctly found that evidence did not support Mr Leach’s claim that failure to give notice to Comcare occurred by mistake. Finally, the Court agreed with the FCA in applying principles of reasonableness.
Mark Robertson QC and Florence Chen appeared for the Appellant, instructed by Holding Redlich.
The judgment is published here.
