Cooper v Comcare

[2002] FCAFC 347

FEDERAL COURT OF AUSTRALIA

Cooper v Comcare [2002] FCAFC 347

WORKERS COMPENSATION – Commonwealth employee – back injury – claimed entitlement to lump sum – back injury and impairment before 1988 Act – no entitlement under 1971 Act – decision of Administrative Appeals Tribunal – application to extend time for review of AAT decision – application dismissed  - application for leave to appeal and to extend time against dismissal by primary judge – relevant factors – appeal without merit – application dismissed.

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 24, s 27
Administrative Appeals Tribunal Act 1975 (Cth) s 44

Vranic v Commissioner of Taxation [2002] FCA 146 cited
Deighton v Telstra Corporation Ltd, unreported, Full Court of the Federal Court, 17 October 1997 cited
Barrett v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129 cited
Weatherall v Satellite Receiving Systems (Aust) Pty Ltd (1999) 92 FCR 101 cited
Dai v Telstra Corporation Ltd (2000) 171 ALR 348 cited
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited
Comcare v Levett (1995) 60 FCR 14 cited
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 cited

JAMES COOPER v COMCARE
W196 OF 2002

FRENCH, CARR AND FINN JJ
13 NOVEMBER 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W196 OF 2002

BETWEEN:	JAMES COOPER APPLICANT
AND:	COMCARE RESPONDENT
JUDGE:	FRENCH, CARR & FINN JJ
DATE OF ORDER:	13 NOVEMBER 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application for leave to appeal is dismissed.

2.The applicant is to pay the respondent’s costs of the application including reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W196 OF 2002

BETWEEN:	JAMES COOPER APPLICANT
AND:	COMCARE RESPONDENT
JUDGE:	FRENCH, CARR & FINN JJ
DATE:	13 NOVEMBER 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT:
Introduction

1. On 8 October 1999, the Administrative Appeals Tribunal (“the Tribunal”) decided that Comcare was not liable to pay lump sum compensation under s 24 and s 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) to the present applicant, James Cooper, in respect of a lower back injury he sustained in the course of his employment with the Commonwealth.

2. Over two and a half years later Mr Cooper applied for an extension of time in which to file and serve a notice of appeal against the Tribunal’s decision.  Comcare in turn brought a motion under O 20 r 2(1) of the Federal Court Rules seeking dismissal of the application as frivolous.

3. The primary judge acceded to Comcare’s motion and dismissed Mr Cooper’s application for an extension of time.  Mr Cooper now seeks leave to appeal from His Honour’s orders.

4. It is well established that an appeal against a decision either granting or refusing an extension of time in which to appeal under s 44…