Arnold v Crimes Compensation Tribunal

[1993] HCATrans 268

..

• ..

• -,/~~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M94 of 1993

B e t w e e n -

SHARON ARNOLD

Appellant

and

CRIMES COMPENSATION TRIBUNAL

Respondent

MASON CJ DAWSON J GAUDRON J

TRANSCRIPT OF PROCEEDINGS

Arnold(2) 1 9/9/93

AT CANBERRA ON THURSDAY, 9 SEPTEMBER 1993, AT 11.59 AM

Copyright in the High Court of Australia

MR R. MERKEL, QC: If the Court pleases, I appear with my

learned friend, MR P.J. HANKS, for the appellant.

(instructed by A. George, Essendon Community Legal

Centre)

MS S.M. CRENNAN, OC:  May it please the Court, I appear with

my learned friend, MR M.D. MURPHY, for the

respondent. (instructed by the Victorian

Government Solicitor)

MASON CJ: Yes, Mr Merkel.

MR MERKEL:  If the Court pleases, the parties are agreed,

subject to what Your Honours may say, as to what

should happen concerning the disposition of the

appeal. We would, without opposition, seek leave

to amend our current notice of appeal which appears

at page 286 by seeking leave to include grounds B,

C and E. We would also seek leave to incorporate

ground 2, which was a ground before the Full Court,

which is at page 270. That would in effect have

the matter before this Court on substantially the

grounds that were before the Full Court.

The reason for the addition was that on the

special leave application, a more truncated notice

of appeal was exhibited to the affidavit and we are

seeking to in effect have the grounds the same as

before the Full Court, and that is not opposed by

my learned friends. We understand that the

submissions which Your Honours have received on

behalf of the respondent indicate that they are
consenting to the orders as set out in the draft

order being made in disposition of the appeal.

MASON CJ: Yes, that is correct.

MR MERKEL:  We would seek orders to that effect by consent,

if the Court pleases.

MASON CJ: What about the order extending time that appears

in 3.(iii) of the draft order?

MR MERKEL:  Could I hand up to Your Honours copies of the

Administrative Appeals the Full Court?

relevant provisions of the

MASON CJ:  Yes. You submit that the Full Court could have

made an order in those terms?

MR MERKEL:  Yes, Your Honour. The relevant section is

52(5). I should indicate to Your Honours that the

claim for compensation was dealt with as a matter
of substance by the Administrative Appeals

Tribunal. It was not a procedural point. It was

Arnold(2) 2 9/9/93

dismissal of the claim, and the review was from that decision and under section 52(5) the power

given to the court was to make such order as it

thinks appropriate and then certain specific

provisions without limiting the generality of the

foregoing.

I understand the position that the respondent

has taken is that there was an error of law in not

extending time and that it was proper in the

circumstances for time to have been extended and

that in those circumstances the order we seek is as

set out in the draft minutes. We say that it being

within the jurisdiction of the supreme court, it
would be within this Court's jurisdiction to make

that order in the circumstances of the case.

MASON CJ: But the jurisdiction of the supreme court was

limited to an appeal on a question of law.

MR MERKEL: Yes, Your Honour.

MASON CJ:  The jurisdiction being so limited, would it be

possible for the supreme court to order an

extension of time which rather depends on facts?

MR MERKEL:  Your Honour, if it is conceded, as I believe it

is before Your Honours - but that is a matter for

my learned friend to clarify - that the failure to

extend time was itself an error of law in the

circumstances of the case, then it certainly would

be open to the Court to do so.

DAWSON J: What happened? The Tribunal just went ahead and

dealt with the substance of the matter and did not

turn its mind to the extension of time, ultimately?

MR MERKEL:  Under the statute, Your Honour, it has no

jurisdiction to make an order without extending

time and it could not do so; it is a threshold

question in this sense that it is under section

DAWSON J: But it overlooked that; is that - - -
MR MERKEL:	Well no, Your Honour. What happened is that it

found upon evidence that it ought not to extend
time and we say that our ground No 2, which we have
added, is that there was no evidence upon which

such a decision to refuse to extend time could have

been based; the errors of law conceded by my
learned friends, particularly that there is

substance at the proper explanation in that there

is no basis or no evidence below that would justify

a decision not to extend time, and that is an error

of law.

Arnold(2) 9/9/93

MASON CJ: If it appears from the decision of the tribunal

that it would have extended time, but for the error

of law, then it seems to me that the supreme court

could order an extension of time, once it found

that there was the relevant error of law.

MR MERKEL:  Yes, Your Honour, and I understand that the

concession of my learned friends goes that far;

that that is a proper reading of the decision of

the tribunal and that the two reasons why it could

possibly have refused to extend time, namely

ignorance of the law is no excuse and there was no

acceptable explanation, were not reasonably open to

it, were errors of law therefore there was no

reason why it would not extend time and that is why

we put the orders in this way to Your Honours.

MASON CJ: Is there anything you wish to say, Ms Crennan?

MS CRENNAN:  I do not need to add anything, Your Honour,

although the concession of which Your Honour is

speaking, I think, is correctly set out at

paragraph 5 of those submissions of ours - - -

MASON CJ: Yes.

MS CRENNAN:  - - - where we do make the concession that in

the circumstances as established by the evidence.

Now it may not be of any great assistance for me to

detail that in any way - - -

MASON CJ:	No.
MS CRENNAN:	- - - but there were some salient factors which

were easily identifiable, which I could take

Your Honour to if you wanted that assistance.

MASON CJ:  I can say, Ms Crennan, the Court is willing to

make the orders in accordance with the draft order

handed in, in the light of what we have been told.

MS CRENNAN: If the Court pleases.

MASON CJ: So, in those circumstances, the Court makes

orders in terms of the document entitled Draft

Order, which has been handed in and which will be

placed with the papers.

MS CRENNAN:	Yes, if Your Honour pleases.
MASON CJ:	The Court will now adjourn until 10.15 am

tomorrow. Yes, Mr Merkel.

MR MERKEL:  Sorry, Your Honours. Can I take it in the order

that Your Honours have made, the leave to amend the

grounds has been granted?

Arnold(2) 9/9/93

MASON CJ: Yes.

MR MERKEL:  Thank you, Your Honour.

AT 12.06 PM THE MATTER WAS ADJOURNED SINE DIE

Arnold(2) 9/9/93