Berry v Repatriation Commission

[1992] FCA 410

Re: JOHN LOUIS BERRY
And: REPATRIATION COMMISSION
No. V G135 of 1992
FED No. 410
Administrative Law
(1992) 27 ALD 330

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Gray J.(1)

CATCHWORDS

Administrative Law - Administrative Appeals Tribunal - appeal to Court on a question of law - application for extension of time to lodge appeal - whether adequate explanation of delay - whether sufficient prospect of appeal succeeding.

Administrative Appeals Tribunal Act 1975 s.44(2A).

Veterans' Entitlements Act 1986 s.24.

Baker v. Secretary, Department of Social Security (1991) 13 AAR 429.

Repatriation Commission v. Maley (1991) 24 ALD 43.

Starcevich v. The Repatriation Commission (1987) 76 ALR 449.

HEARING

MELBOURNE

#DATE 26:5:1992

Counsel for the applicant: J. Bell

Solicitors for the applicant: De Marchi and Associates

Counsel for the respondent: W. Chan

Solicitors for the respondent: Australian Government

Solicitor

ORDER

The order of the Court is that:

1. The application for an extension of time to file a notice of appeal is dismissed.

2. The applicant pay the respondent's costs of the application.

JUDGE1

This is an application for an extension of time in which to file and serve a notice of appeal from a decision of the Administrative Appeals Tribunal. The application is made under s.44(2A) of the Administrative Appeals Tribunal Act 1975, which provides as follows:

"An appeal by a person under subsection (1) or (2) shall be

instituted:

(a) not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is furnished to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows; and

(b) in such manner as is prescribed by rules of court made under

the Federal Court of Australia Act 1976."

The application has been put by counsel for the applicant on the basis that I am required to be satisfied of two things. The first is that there must be some adequate explanation of the delay in lodging a notice of appeal; the second is that the appeal must have sufficient prospect of success to make it just that the applicant should now be allowed to proceed with it.

1. As to the first matter, the applicant relies on a chronology set out in the affidavit of his solicitor, Mr Dino De Marchi, sworn on 25th May 1992. To some extent, that chronology has been supplemented by the tender of the decision and reasons for decision of the Administrative Appeals Tribunal, with attached correspondence. It appears that on 23rd September 1991, the Administrative Appeals Tribunal gave an oral decision in respect of the applicant's application for review. According to Mr De Marchi's affidavit, on 21st October, nearly a month later, he received instructions from the applicant to apply to the Legal Aid Commission, to obtain assistance to pursue an appeal to this Court. On the same day, Mr De Marchi wrote to the Administrative Appeals Tribunal in accordance with s.43(2A) of the Administrative Appeals Tribunal Act 1975, requesting the furnishing of reasons in writing.

2. According to the correspondence which is in evidence, a letter from the Registrar of the Administrative Appeals Tribunal, enclosing a copy of the decision and the reasons for the decision was dated 8th November 1991. In the case of the applicant, it was addressed to him care of J.G. Horan at a post office box number in Pascoe Vale South. The Court was informed that a Mr Horan acted as advocate for the applicant on the hearing of his application for review in the Administrative Appeals Tribunal. It is apparent from Mr De Marchi's affidavit that the decision and reasons did not reach him (Mr De Marchi) until 28th November 1991. On that day, he says, he received the written reasons from the Administrative Appeals Tribunal. In the meantime, on 13th November, he had written a further letter to the Administrative Appeals Tribunal, requesting reasons for the decision.

3. Also in the meantime, Mr De Marchi had written on 25th November to the Legal Aid Commission, requesting confirmation by return facsimile that it was in order to investigate the prospects of an appeal in the applicant's case. Apparently there was no response from the Legal Aid Commission and further correspondence ensued from Mr De Marchi to that commission on 16th December and 23rd December 1991.

4. On 23rd January 1992, Mr De Marchi received a letter from the Legal Aid Commission, granting aid to investigate generally a claim which he says was clearly not related to the question of the appeal. A week later, Mr De Marchi wrote to the Legal Aid Commission, informing it of its error and seeking assistance in order to obtain the opinion of counsel on the question of an appeal. On 31st January, Mr De Marchi telephoned someone at the Legal Aid Commission and obtained oral authorisation to seek the advice of counsel in relation to the proposed appeal. On 27th February, Mr De Marchi wrote to the Legal Aid Commission, enclosing a memorandum from counsel, informing the Legal Aid Commission that, given the great delay occasioned so far, it was unlikely that approval to proceed would be given by the Court and asking the commission to treat the matter as urgent. On 19th March 1992, Mr De Marchi again wrote to the Legal Aid Commission concerning the delay in the matter. On 23rd March 1992, the Legal Aid Commission approved the institution of an appeal to this Court.

5. The application for extension of time was not prepared until 16th April, the date which it bears; according to the seal of the Court applied to it, it was filed on 22nd April 1992. In the meantime, apparently, there was some necessity for the provision of a letter from the Legal Aid Commission, for presentation to the Court, indicating that the matter was the subject of legal aid; doubtless that was concerned with the question whether the applicant should be compelled to pay the filing fee.

6. It will be seen from this chronology that there are three unexplained gaps. The first is the gap between 23rd September 1991, when the oral decision was made, and 21st October 1991, when Mr De Marchi received instructions to apply for legal aid. There is simply no material as to whether the applicant consulted Mr De Marchi during this period or, if he did not, why he did not. The second delay relates to the apparent failure of the applicant to provide the decision and reasons for decision to Mr De Marchi. According to the only evidence I have, those documents were posted to the applicant, care of Mr Horan, on or about 8th November. They were not received by Mr De Marchi until 28th November, at which time he says they were received from the tribunal, perhaps in response to his letter of 13th November. The applicant has not seen fit to explain whether the delay was his or Mr Horan's. The third period of delay unexplained by affidavit material is the period between 23rd March, on which date legal aid was approved, and 16th April, on which date a document seeking an extension of time was prepared. Counsel for the applicant did indicate from the bar table that he had been briefed to draw the necessary documents and endeavoured to take at least some of the blame for the passage of that period of time. There is no evidence as to when Mr De Marchi sought the letter from the Legal Aid Commission, confirming the grant of aid; waiting for that letter might have caused some of the third period of unexplained delay to elapse.

7. Nonetheless, in these circumstances, it seems to me that the material does not adequately explain the delays which have occurred in making an application to the Court. It is true that much of the time which elapsed appears to have done so because of a failure of the Legal Aid Commission to act upon or reply to correspondence. Of course, the Legal Aid Commission is not present today to respond to these allegations, but it does seem to me to be a most unfortunate reason for delay that the Legal Aid Commission did not respond to Mr De Marchi's numerous requests. I note that in Baker v. Secretary, Department of Social Security (1991) 13 AAR 429, at p 430, Davies J. granted an extension of time for the lodging of an appeal, where the period of delay was longer than that in the present case, and resulted from a delay in obtaining legal advice and legal aid. Obviously, there are practical difficulties involved in the obtaining of legal aid, but it does seem to me that if the Court is automatically to grant extensions of time, whenever the reason for the delay is time taken in receiving a grant of legal aid, then the Legal Aid Commission will have every incentive to continue its apparently inadequate attention to correspondence and to requests for aid.

8. In the present case, the ground on which I hold that the applicant has not satisfied the condition that he must explain adequately the delay is the absence of any explanation at all as to delay in the first period and his apparent failure to convey to Mr De Marchi the written reasons apparently sent to him on 8th November.

9. As to the prospects of the success of the appeal, counsel for the applicant placed heavy reliance on a passage in paragraph 18 of the reasons for decision of the tribunal. I think I should set out that paragraph in full:
   

"I therefore find that the applicant does not satisfy paragraph

(c) of either sections 23(1) or 24(1) of the Act. I so find

taking into account the impact on the applicant of being

effectively out of the workforce for 18 years and to this end I

note the passage cited by Mr Emerson-Elliott from Starcevich v The Repatriation Commission (1987) 76 ALR 449 at page 454. I am also satisfied that the applicant's cyclothymic disorder plays a part

in preventing him undertaking remunerative employment together

with his war caused diseases. He has adjusted his life-style very sensibly living with his war-caused diseases but he has also had

to adjust to living with his other disorder. This adjustment

includes not working."

Counsel for the applicant was concerned to suggest that the tribunal had erred in law by taking into account the fact that the applicant had been out of the work force for eighteen years. In my view it is plain that, as a matter of logic, the fact that an applicant for a special rate of pension under s. 24 of the Veterans' Entitlements Act 1986 has been out of the work force for a considerable period of time has relevance. The tribunal could not be criticised for making a finding of that fact or for taking it into account.

1. The argument put on behalf of the applicant is that, if the applicant were prevented by his war-caused diseases from working for that eighteen years, then it would be wrong to take that eighteen years into account as a reason why he was said to be prevented by factors other than the war-caused injuries from working. Some reliance is placed on a passage in the judgment of the Full Court in Repatriation Commission v. Maley (1991) 24 ALD 43, at p 51. As I read the reasons for decision of the tribunal in the present case, that is not what the tribunal was doing. It will be noted that the first sentence of paragraph 18 of the tribunal's reasons for decision begins with the words, "I therefore find...". The paragraph is preceded by a number of paragraphs in which the evidence in the case is reviewed, including the medical evidence as to what is described in paragraph 16 as the applicant's cyclothymic personality disorder. The tenor of the findings made in those earlier paragraphs is that the cyclothymic disorder was a factor capable of contributing to the inability of the applicant to work at the relevant date. The opening sentence of paragraph 18, therefore, amounts to a clear finding that the applicant does not satisfy paragraph (c) of either of the relevant sections, for the reason that there was a factor other than war-caused injury or disease, preventing him from undertaking remunerative work at the relevant date.

2. The tribunal then adds, in the second sentence, a reference to the applicant having been out of the work force for eighteen years, together with a reference to a passage in Starcevich's Case. That case was concerned with the question whether only the last remunerative employment of a veteran was relevant to the issue which arose under s.24(1)(c). It was held by the Full Court that it was legitimate to look back beyond the last remunerative work and to enquire whether, but for the war-caused injury or disease, at the relevant date, the veteran would have continued with some form of remunerative employment that he or she had undertaken previously. In my view, the reference to Starcevich's Case, makes it apparent that the tribunal was endeavouring to express the fact that it was looking back beyond the period for which the applicant had not worked at all, to see whether some remunerative employment, in which he had been engaged previously, would still have been requiring his attention if he had not suffered his war-caused disability. In other words, the tribunal was looking on the eighteen year period favourably from the applicant's point of view.

3. In the third sentence of paragraph 18, in which the tribunal refers specifically to the applicant's cyclothymic disorder and to the part that it plays in preventing him undertaking remunerative employment, the tribunal expresses its crucial finding. Unless the applicant were able to show that, in some way, reliance on the fact that he had been out of the work force for eighteen years was both an error of law and capable of overturning the crucial finding, he would not succeed on his appeal. In my view he has not shown an arguable case that he would be able to overturn the crucial finding. I am, therefore, compelled to find that the applicant would have no sufficient prospect of success, such as to make it just that he should now be allowed to proceed with his appeal.

4. It follows that I find against the applicant with respect to both of the matters the subject of this application, the explanation of the delay and the prospects of success of the appeal. I am, therefore, bound to dismiss the application for extension of time to file a notice of appeal.