Beard v Telstra Corp Ltd

[1999] FCA 999

FEDERAL COURT OF AUSTRALIA

Beard v Telstra Corp Ltd [1999] FCA 999

ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal to dismiss proceedings pursuant to s 42A(5) Administrative Appeals Tribunal Act 1975 - whether applicant failed within a reasonable time to proceed with application – delay in providing or failure to provide certain medical reports not determinative of whether there was a failure to proceed.

Administrative Appeals Tribunal Act 1975 S42A(5)

RAYMOND JOHN BEARD v TELSTRA CORPORATION LIMITED
Q 92 of 1999

SPENDER J
23 JULY 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 92 OF 1999

On appeal from the General Division of the Administrative Appeals Tribunal constituted by a Senior Member

BETWEEN:	RAYMOND JOHN BEARD Applicant
AND:	TELSTRA CORPORATION LIMITED Respondent
JUDGE:	SPENDER J
DATE OF ORDER:	23 JULY 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The decision of 28 January 1999 of the Administrative Appeals Tribunal be set aside.

3.The matter be remitted to the Administrative Appeals Tribunal to be heard according to law.

4.There be no order as to costs.

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	Q 92 OF 1999

On appeal from the General Division of the Administrative Appeals Tribunal constituted by a Senior Member

BETWEEN:	RAYMOND JOHN BEARD Applicant
AND:	TELSTRA CORPORATION LIMITED Respondent

JUDGE:	SPENDER J
DATE:	23 JULY 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This application is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (the Act) in respect of a decision of the Tribunal made on 28 January 1999 that application Q1997/122 be dismissed pursuant to s 42 A(5) of the Act.

2. Section 42A(5) of the Act provides:

   "(5)  If an applicant for review of a decision fails within a reasonable time:

   (a)to proceed with the application; or

   (b)to comply with a direction by the Tribunal in relation to the application;

   a presidential member or senior member, on behalf of the Tribunal, may dismiss the application without proceeding to review the decision."

3. The notice of appeal was filed on 25 March 1999.  On 30 March 1999 the Tribunal supplied written reasons for its decision, pursuant to the request of the solicitors for the applicant by letter dated 5 March 1999.  In those reasons the Tribunal indicated that it was "…not to be taken as conceding that the Tribunal has made a decision under s 43 of the [Act]". Notwithstanding that observation, the decision of 28 January 1999 by the Tribunal was a decision to dismiss the application pursuant to s 42A(5) of the Act, and no point is taken that that decision is not amenable to appeal for error of law pursuant to s 44 of the Act.

4. Shortly before the application was to be heard by the Federal Court on 23 June 1999, solicitors for the applicant advised that the applicant…