Bin Tahal v Comcare

[1999] FCA 520

FEDERAL COURT OF AUSTRALIA

Bin Tahal v Comcare [1999] FCA 520

HASSAN BIN TAHAL V COMCARE

QG 137 OF 1998

SPENDER J
27 APRIL 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 137 OF 1998

On appeal from the Administrative Appeals Tribunal constituted by Senior Member Beddoe

BETWEEN:	HASSAN BIN TAHAL Applicant
AND:	COMCARE Respondent
JUDGE:	SPENDER J
DATE OF ORDER:	27 APRIL 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The notice of motion filed 1 February 1999 to extend time in which to file and serve a notice of appeal is allowed.

2.The applicant in the principal proceedings pay the costs of the notice of motion of 1 February 1999, those costs to be taxed if not agreed.

3.The applicant in the principal proceedings pay the costs of the directions hearing of 5 February 1999, to be taxed if not agreed.

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	QG 137 OF 1998

BETWEEN:	HASSAN BIN TAHAL Applicant
AND:	COMCARE Respondent

On appeal from the Administrative Appeals Tribunal constituted by Senior Member Beddoe

JUDGE:	SPENDER J
DATE:	27 APRIL 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. By notice of motion filed 1 February 1999, the applicant, Hassan Bin Tahal, “…applies for an extension of time in which to file and serve a Notice of Appeal from the decision or determination of the administrative appeals tribunal…given on 12 June 1998 at Brisbane whereby the tribunal decided or determined to affirm a determination of the Respondent [Comcare] made on 13 February 1996 that the Respondent was not liable to pay compensation to the Applicant pursuant to the Safety, Rehabilitation and Compensation Act 1988”.  The notice of motion acknowledges an extension of time is required because a notice of appeal was not filed within the time specified in the Act.

2. It is also sought to rely on a notice of appeal which is headed “AMENDED NOTICE OF APPEAL” and which is exhibited as WJR1 to the affidavit of Mr William James Royds, the solicitor for Mr Bin Tahal, filed 27 January 1999.

3. In relation to the application for an extension of time within which to appeal, the position was summarised by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. As his Honour noted “Section 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) does not set out any criteria by reference to which the court's decision to extend time for an application for review under s 5 is to be exercised”.  His Honour then set out his well known summary of relevant considerations.

4. In this case, the decision was given in Brisbane on 12 June 1998, and the evidence suggests that copies of the decision were sent on that day to Mr Bin Tahal and to his then solicitors.  The former solicitors for the applicant wrote to Comcare on 10 July 1998.  The letter said:

   “We have received instructions from our client to appeal the decision handed down by the Administrative Appeals Tribunal in this matter on 12 June 1998.

   Due to our client's impecunious circumstances, it is necessary for him to obtain a grant of Legal Aid before filing the Notice of Appeal.  We are awaiting the outcome of the application to Legal Aid in this regard and anticipate that the Notice of Appeal will be filed immediately upon Legal Aid being approved.”

5. As it turned out, legal aid was not granted to Mr Bin Tahal to prosecute his appeal, and a notice of appeal was not filed until the day following Mr Bin Tahal’s initial consultation with his present solicitors.  However, the letter of 10 July makes it plain that this is a case where the applicant, by non-curial means, has made the decision-maker aware that he contests the finality of the decision made by the Administrative Appeals Tribunal.  This is not a case where the decision-maker has been lulled into any belief that the matter had been finally concluded by the decision of the Administrative Appeals Tribunal on 12 June 1998.

6. It is fairly acknowledged by Mr Bickford, counsel for Comcare on the present application, that there is no particular prejudice to Comcare involved in the present application.  The contentions on behalf of Comcare really come down to asserting that there has not been an acceptable explanation for the delay and that it has not been demonstrated that there are such merits in the proposed appeal that an extension of time should be granted.

7. As to the first contention, it seems to me that the delay that did occur, notwithstanding the letter of 10 July, is attributable in part to the anticipation or hope that Legal Aid would be approved for the appeal, Mr Bin Tahal believing he had sound prospects of obtaining Legal Aid, and also, when that was unsuccessful, the insistence by Mr Bin Tahal's former solicitors on being put in funds before they would lodge a notice of appeal.  When Mr Bin Tahal was unable to comply with requirements of his former solicitors, he promptly sought the assistance of his present solicitors, who then initiated these proceedings by filing the first notice of appeal.

8. I think in the circumstances the explanation offered is understandable, and it is fair and equitable in the circumstances, subject to the question of merits, to extend the time for compliance, particularly in the absence of any specific prejudice to Comcare.

9. In relation to the question of the merits of the application, it is clear that, even in the amended notice of appeal, the precision of the questions of law and the grounds of the appeal leave a lot to be desired.  However, I am of the view that there is at least an arguable case that, even on the findings by the Administrative Appeals Tribunal, there has been a misinterpretation of the definition of “disease” in s 4 of the Safety Rehabilitation and Compensation Act (1988).

10. While it is not encompassed by the present amended notice of appeal, there seems to me to be a real question as to whether the Tribunal has discharged its obligation to indicate why it found as it did.  In particular, it seems to have been accepted that there is an anxiety condition from which Mr Bin Tahal suffered or continues to suffer.  This condition was said by the Tribunal to result from "his dissatisfaction with the terms and conditions of his employment" and was "not contributed to in a material degree by his employment with the Commonwealth".

11. It is arguable that this finding is inconsistent with the finding that the development of a high level of dissatisfaction with the workplace had as one of its components “a reasonable dissatisfaction with the disciplinary procedures conducted over an extended period by his employer, without regard to procedural fairness”, and also that the dissatisfaction had developed as a consequence of "quite serious cultural conflicts because of the required duties of a Census Officer and the cultural mores of applicant's people in the Torres Strait…".

12. It is not desirable that I go further into the question of the merits, but it seems to me that it is at least arguable that there is an error of law affecting the decision of the Tribunal.  In those circumstances it is fair and equitable to extend the time within which Mr Bin Tahal might prosecute his appeal from that decision.

13. There are two other aspects.  One concerns costs of a directions hearing reserved on 5 February 1999.  It seems that there was at least a misunderstanding on the part of the solicitors for Mr Bin Tahal, which had the consequence that he was not represented by telephone link on that occasion.  I don't think that that failure to appear is attributable in any way to fault on the part of any Court officer or to any fault on the part of Comcare.  In those circumstances, it seems to me that I ought order that the applicant pay the respondent's costs of the directions hearing of 5 February this year, to be taxed if not agreed.

14. As to the costs of the motion seeking an extension of time within which to appeal, Wilcox J observed in Hunter Valley Development Pty Ltd v Cohen (supra) at 353:

    “In the normal course an applicant for extension of time under s 11 should pay the costs incurred by the respondent in relation to the application.  This is the general provision of the Federal Court Rules 1979 in relation to an application for an extension of time under the rules: see O 62, r 23 and L Grollo Darwin Management Pty Ltd v Victor Plaster Products Pty Ltd (1978) 33 FLR 170 at 178-179 relating to the corresponding provision of the High Court Rules.  I see no reason to distinguish between a case of an application for extension of time limited by the rules and a case, such as the present, in which the applicant seeks an extension of the time limited by an Act.”

15. Those considerations indicate that I should order that the applicant in the principal proceedings pay the costs of this notice of motion for an extension of time within which to appeal, those costs to be taxed if not agreed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated:             27 April 1999

Solicitor for the Applicant:	Thompson & Royds
Counsel for the Respondent:	Mr P Bickford
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	27 April 1999
Date of Judgment:	27 April 1999