Australian National Railways Commission v Christodoulou, Z.

[1988] FCA 578

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!	IN THE FEDERAL COURT	)	NOT FOR DISTRIBUTION
OF AUSTRALIA	1

SOUTH AUSTRALIA	1	,-.
DISTRICT REGISTRY	1
GENERAL DIVISION	1	NO. G27 OF 1988

, :

B E T W E E N :  AUSTRALIAN NATIONAL RAILWAYS
COMPIISSION

Applicant	.I
, v

and

ZACHARIAS CHRISTODOULOU

Respondent

HINUTE OF ORDER

JUDGES IqAKING ORDER: DAVIES, GUN?MOW and LEE JJ.	!
DATE OF ORDER:	21 SEPTEMBER 1988
WHERE NADE :	ADELAIDE
THE COURT	ORDERS THAT:

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1.         The application for extension of time to file notice of appeal be dismissed.

in Order 36 of the Federal Court Rules.

2. The applicant pay the r spondent's costs of the

applicatlon.

Settlement and entry of orders is dealt with

IN THE FEDERAL COURT	)	NOT FOR DISTRIBUTION
OF AUSTRALIA	)
SOUTH AUSTRALIA	)
DISTRICT REGISTRY	)
GENERAL DIVISION	)	NO. G27 OF 1988
B E T W E E N :	AUSTRALIAN NATIONAL RAILWAYS COMNISSION

Applicant

and

ZACHARIAS CHRISTODOULOU

Respondent

CORAM: DAVIES, GUMMOW and LEE JJ.

21 September 1988

EX TEMPORE REASONS FOR JUDGPIENT ON APPLICATION FOR EXTENSION OF

TIME TO FILE NOTICE OF APPEAL

THE COURT:

This is an application f o r an extension of time to file

a notice of appeal seeking to set aside a decision of the General

Administratlve Division of the Adminlstrative Appeals Tribunal

delivered by Deputy President Layton on 23 December 1987.

The application was filed some seven weeks after the

explration of the period provided f o r the lodgement of a notice of

appeal under s.44 of the Administrative Appeals Trlbunal Act 1975.

In determining the question whether to extend the time

to lodge a notice of appeal we have heard the full argument of the

appeal. Pursuant to s.44 of the Administrative Appeals Tribunal

-	Act such an appeal may only be pursued if the appeal raises a
question of law.

The applicant contends that a question of law is raised

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in the construction applied by the Deputy President to s.67 of the

workers' Compensation Act 1971 (S.A.).

In Hartwell v. Electricity Trust of South Australia

(1982) 29 S.A.S.R. 365, the Pull Court of the Supreme Court of

' South Australla consldered the construction of s.67 of the

Workers' Compensation Act 1971. It is unnecessary for this Court

to consider whether it agrees with the construction settled upon

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by the judgments of the majorlty of that Court and in particular

the judgment of King C.J. which drew guidance and assistance from

the construction of the longstanding provisions of sub-s.ll(2) of I. .

the Workers' Compensation Act of New South Wales as set out by the

High Court in R.J. Brodie (Holdings) Pty. Ltd. v. Pennell (1968)

117 C.L.R. 665 at p.669 and Dowell Australia Limited v. Archdeacon

(1975) 132 C.L.R. 417. The Chief Justice acknowledged there were differences between the New South Wales and South Australian provisions but found the underlying concept to be the same (at

p.	369). Notwithstanding the common foundatlon for the
legislation, that difference in structure may provide different results in some clrcumstances.

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It is unnecessary for us to explore whether in fact this

is so because in our view the decision of the Deputy President turns upon particular and unique findings of fact which provide an

unsatisfactory vehicle for detailed	consideration of the meanining
of s.67.	The partlcular findings of fact of the Tribunal were as
follows:

I	a)	work for which the worker was fit on 3 March 1986 was made available to him by the employer on that day;
b)	in ceaslng work on 3 March 1986 the worker did
not repudiate his contract of employment and offered to attend for work on the following day, 4 Narch 1986, to attempt to carry out the type of work made available on 3 March 1986; and
the employer declined to make such work available on 4 march 1986, and thereafter,
notwithstanding awareness of the worker's
preparedness to try again to undertake such work.

These findings of fact were consistent with the

evidence. Whatever view is adopted as to the construction of s.67

the Tribunal's finding that he worker was entitled to

compensation pursuant to the provisions of the section will

remain the appropriate finding.

In addition to the above the respondent contends that the hearing of the appeal on this matter has	been rendered futile
by a subsequent determination of the respondent's entitlement to	, '
compensation by the delegate o f	the Commissioner f o r Employees'
Compensation.	The respondent has argued that this determination

cannot be affected by any finding this Court may make in respect

of the decision of the Tribunal. We have not found it necessary to decide that question in determinlng thls application but note that an argument of substance can be perceived therein. i

Having regard to the lack of merit in the proposed

appeal, it is our decision that time to lodge an appeal ln thls

matter should not be extended.	Therefore, the application for
extension of time is dismissed and the	applicant is ordered to pay

the respondent's costs of the applicatlon.

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I certlfy that the precedlng

four (4) pages are a true copy of the

Reasons for Judgment of the Court.

Associate:  /t3at*;cca' c%uQe

Counsel for the Appellant: Wr P.W. Eriksen

Solicitor for the Appellant:  Australian Government Solicitor

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Counsel for the Respondent: 11r R.C. White

Solicitor f o r the Respondent:  Nessrs Stanley & Partners

Date of Hearing: 21 September 1988 Date of Judgment: 21 September 1988

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