Barrett v Department of Social Security

[1995] FCA 780

CATCHWORDS

PRACTICE AND PROCEDURE - ADMINISTRATIVE LAW  - appeal from decision of the Administrative Appeals Tribunal - application to extend time to file and serve notice of appeal - six year delay - question of law required - applicant discovered new evidence - whether absence of evidence before Tribunal constitutes an error of law

Administrative Appeals Tribunal Act 1975 s44(2A), sub-s44(1)
Federal Court Rules Order 53 rule 7

Kenneth George Barrett v Department of Social Security
No QG 188 of 1994

Kiefel J  Brisbane 26 September 1995

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION  No. QG 188 of 1995

BETWEEN:

KENNETH GEORGE BARRETT

Applicant

AND:

DEPARTMENT OF SOCIAL SECURITY

Respondent

JUDGE MAKING ORDER:        Kiefel J.

DATE OF ORDER:  26 September 1995

WHERE MADE:  Brisbane

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The application be dismissed.

NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION  No. QG 188 of 1995

BETWEEN:

KENNETH GEORGE BARRETT

Applicant

AND:

DEPARTMENT OF SOCIAL SECURITY

Respondent

CORAM:Kiefel J.

DATE:26 September 1995

PLACE:Brisbane

REASONS FOR JUDGMENT
  EX TEMPORE

Mr Barrett applies to the Court under Order 53 Rule 7 for an extension of the time specified in sub-s.44(2A) of the Administrative Appeals Tribunal Act 1975, for the filing and serving of a notice of appeal. The decision of the Tribunal from which he seeks to appeal was furnished to him on about 30 November 1988. By it, the Tribunal affirmed a prior determination that the personality disorder suffered by Mr Barrett did not result from injury arising in the course of his employment, although it varied another determination relating to travel costs. That latter determination is not now relevant.

The reasons of the Tribunal disclose findings that Mr Barrett suffered from the disorder from at least 1974, many years prior to his employment with the Department in question.  Further, the Tribunal accepted the medical evidence that there was either no connection at all between the illness and the employment, save that they occurred at the
same time, or alternatively that a conclusion as to whether episodes of the illness impacted on or caused difficulties at work, or vice versa, could not be drawn.  The Tribunal concluded that it was therefore not possible to find for Mr Barrett in respect of his claim for compensation.

It appears that the hearing before the Tribunal extended over some five days.  Mr Barrett had, in support of his claim, alleged that he was the subject of discrimination in relation to proper training, that a false complaint of sexual harassment had been made against him, and generally that he had been subjected to a campaign to injure him, which may have been motivated by other persons appreciation that he suffered from the condition of schizophrenia.  He complained in these proceedings of a breach of his employer's duty of care towards him.  The Tribunal did not find these matters in his favour insofar as Mr Barrett alleged conflict or difficulties with other employees, including the complaint of sexual harassment.  The Tribunal merely noted, following evidence from fellow employees and the complainant, that conflicts had occurred, but held that it was incidental to their decision which, as I have said, was concerned with whether those difficulties caused the illness in some measure or the illness caused them.

Mr Barrett appeared before me without legal representation.  In explanation of the delay from December 1988, which is obviously considerable, some six years, Mr Barrett points to an action commenced by him in the Supreme Court of Queensland in October 1988, where he sought common law damages for negligence and breach of duty against the Commonwealth, on a similar basis to the grounds which had been agitated in
the Tribunal.  A statement of claim was filed in those proceedings in 1989, but the action was discontinued in 1992 as he felt unable to pursue it on his own.

Mr Barrett sought Legal Aid in 1991, 1992, and 1994, but it was denied him.  He sought advice from private legal firms but this appears principally to relate to the Supreme Court action.  Most recently he says he received advice from the Legal Aid Office on 19 September 1995.  The respondent Department says that it has not, over the years, had any advice that Mr Barrett would be appealing from the decision.  Whilst it received other court process or communications relating to other matters, including his continued requests to be reinstated to employment, it has had no communication with him since 1992.  Mr Barrett retired through illness in April 1986.  Mr Barrett feels confident that he must have said something about an appeal but could not point to any advice, and he tells me he had contact with an officer of the Australian Government Solicitor at some time in the period 1992 to 1994.  Mr Barrett's principal explanation is his difficulty in obtaining legal representation, although it must be observed that he had lawyers acting for him in late 1988 and early 1989, and at no time did they suggest an appeal was ever contemplated.

Mr Barrett then explained that he had decided it was worthwhile proceeding with an appeal when he received some information, in 1993, that the complainant earlier referred to was saying that others, not him, had harassed her.  He decided not to pursue it immediately because the complainant was then having a child.  Lastly, Mr Barrett advised
me that he did not know of his right of appeal until 1992, when he received some advice from a civil liberties group.

Were I to accept all that Mr Barrett says and the difficulties which unrepresented persons labour under, I would not consider it an appropriate exercise of the Court's discretion to extend time.  A long time has passed, and it is clear that Mr Barrett wishes to, and needs to, further examine the witnesses called in the proceedings in the Tribunal.  It is unlikely he would be permitted to do so, but even if he were, I consider it would be unfair to test their recollections.

If Mr Barrett had made it known that he would pursue an appeal my view might have been different.  Indeed, if he had, it is likely that matters would not have dragged on this long.  Whilst the Court has some sympathy for unrepresented persons it is not, I think, expecting too much these days to require that they inform themselves of their rights, and make their intentions known, even if it then takes them a little longer to formulate grounds and to investigate the possibility of legal representation.

The other factor which must weigh heavily against an extension of time is the nature of the appeal sought to be brought.  For the most part it involves a rehearing of the matters the subject of findings by the Tribunal, upon which there was evidence to permit those findings.  No question of law as required by sub-s.44(1) is exposed.  Mr Barrett pointed out that it was not just a review of those findings contemplated by him, since he would seek to introduce fresh evidence, which would be obtained by his further cross-examination of the complainant and of the medical witnesses.  The substance of the complaint did not however form part of the Tribunal's essential decision.  Reliance was placed on the medical witnesses by the Tribunal.  Mr Barrett says one of them gave false evidence, although he did not demonstrate how such a serious allegation might be made out.  It would not, in any event, appear to overcome the evidence of the other witness, which was to the effect that no conclusion that his illness resulted from his employment could be drawn.  It seems to me that a Tribunal could not be said to have fallen into error, or that a question of law might otherwise arise, because evidence was not placed before it.  This situation might be compared with one where a Tribunal arrives at a conclusion where there was no evidence.  Mr Barrett simply contends for different conclusions on different evidence and, as I have said, conclusions which would not likely be reached in any event.  In all the circumstances, I must dismiss the application for an extension of time.

I certify that this and the preceding four pages are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel.

Associate

Date:27 September 1995

Applicant:In Person

Counsel for the respondents:  Mr P G Bickford

Solicitors for the respondents:  Australian Government Solicitor

Date of Hearing:  26 September 1995

Place of Hearing:  Brisbane

Date of Judgment:  26 September 1995