Cooper v Comcare - [2002] FCA 788

FEDERAL COURT OF AUSTRALIA
Cooper v Comcare [2002] FCA 788
COMPENSATION – commonwealth employees – claim by applicant for lump sum compensation for permanent impairment of lower back – finding by Administrative Appeals Tribunal that impairment became permanent from 1 December 1988 – Tribunal decision given on 8 October 1999 – present application by applicant for extension of time within which to appeal – motion by respondent to dismiss application as frivolous – whether findings of fact by Tribunal unchallengeable – whether Tribunal findings preclude liability for lump sum payment in respect of lower back as a matter of law
Administrative Appeals Tribunal Act 1975 (Cth) ss 44(1), 44(2A), 44(2A)(a),
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 24, 27
Federal Court Rules O 20 r 2(1)
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 referred to
Comcare v A’Hearn (1993) 45 FCR 441 referred to
Department of Social Security v Van Den Boogaart (1995) 37 ALD 619 referred to
Comcare v Levett (1995) 60 FCR 14 followed
Walton v Gardiner (1993) 177 CLR 378 referred to
JAMES COOPER v COMCARE
W150 of 2002
RD NICHOLSON J
20 JUNE 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W150 of 2002

BETWEEN:

JAMES COOPER
APPLICANT

AND:

COMCARE
RESPONDENT

JUDGE:

RD NICHOLSON J

DATE OF ORDER:

20 JUNE 2002

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The respondent’s motion to dismiss the applicant’s application for an extension of time to file and serve a notice of appeal be allowed.
2.The applicant’s application for an extension of time to file and serve a notice of appeal from the Administrative Appeals Tribunal decision given on 8 October 1999 be dismissed.
3.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

WESTERN AUSTRALIA DISTRICT REGISTRY

W150 of 2002

BETWEEN:

JAMES COOPER
APPLICANT

AND:

COMCARE
RESPONDENT

JUDGE:

RD NICHOLSON J

DATE:

20 JUNE 2002

PLACE:

PERTH

REASONS FOR JUDGMENT

The applicant applies for an extension of time in which to file and serve a notice of appeal in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) given on 8 October 1999. His application seeking such extension was lodged on 21 May 2002.
The application is brought in reliance on s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). That subsection provides to the Court a discretion to permit an appeal pursuant to s 44(1) of the AAT Act to be brought “within such further time as the Federal Court of Australia (whether before or after the expiration of [the 28^th day after the day on which a document setting out the terms of the decision of the Tribunal is furnished to the person]) allows”.
The respondent now brings a motion seeking dismissal of the application, relying on O 20 r 2(1) of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cooper v Comcare

Details

AGLC: Cooper v Comcare [2002] FCA 788
Case: [2002] FCA 788
Decision Date: 20 JUNE 2002

CaseChat Overview and Summary

The Federal Court of Australia dealt with an application for an extension of time to lodge an appeal against a decision of the Administrative Appeals Tribunal (AAT) in the case of Cooper v Comcare. The applicant, Cooper, had sustained injuries in the course of his employment and had previously accepted liability to pay compensation under the Compensation (Commonwealth Government Employees) Act 1971 (Cth). Cooper subsequently lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) for permanent impairment in respect of his back injury, which was rejected by the AAT. Cooper appealed to the AAT, but the appeal was dismissed, and Cooper did not seek leave to appeal to the Federal Court within the required timeframe. The present application for an extension of time to appeal was filed two years and six months out of time.

The legal issue before the court was whether the application for an extension of time should be granted, considering the statutory time limit for appeals and the principle in Levett's case which precludes an appeal based on unchallengeable findings of fact. The court had to determine if the application was frivolous and if there was any prejudice to the respondent, Comcare, in granting the extension of time.

The court found that Cooper's application was frivolous because the merits of his appeal were precluded by the rule in Levett's case due to the unchallenged findings of fact by the AAT. The court noted that Cooper had been capable of bringing fresh applications during the period in question, indicating that he could have sought an extension of time if necessary. The court held that the application should be dismissed as it was frivolous and there would be no prejudice to Comcare if the application was granted, as Cooper intended to rely solely on the medical evidence already before the AAT.

ORDERS:
1. The respondent’s motion to dismiss the applicant’s application for an extension of time to file and serve a notice of appeal be allowed.
2. The applicant’s application for an extension of time to file and serve a notice of appeal from the Administrative Appeals Tribunal decision given on 8 October 1999 be dismissed.
3. There be no order as to costs.

Orders

Orders of the court

1. The respondent’s motion to dismiss the applicant’s application for an extension of time to file and serve a notice of appeal be allowed.

2. The applicant’s application for an extension of time to file and serve a notice of appeal from the Administrative Appeals Tribunal decision given on 8 October 1999 be dismissed.

3. There be no order as to costs.

Background

Background to the litigation

The respondent now brings a motion seeking dismissal of the application, relying on O 20 r 2(1) of the Federal Court Rules.Background circumstances On 19 February 1987 the applicant sustained an injury to his left ankle in the course of his employment. On 22 May 1987 he sustained a second injury, this time to his lower back. Liability to pay compensation in respect of both injuries was accepted pursuant to the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“the 1971 Act”). On 10 April 1997 the applicant lodged a claim for compensation pursuant to ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) for permanent impairment in respect of his back injury which had occurred on 22 May 1987. On 31 August 1998 a review officer of the respondent made a decision affirming a determination of 4 June 1998 rejecting the applicant’s permanent impairment claim; ceasing the respondent’s liability to pay compensation to the applicant in respect of his left ankle on and from 20 May 1998; and ceasing the respondent’s liability to pay compensation to the applicant in respect of his back condition on and from 17 September 1998. The applicant appealed the decision of the review officer. The appeal was heard by the Tribunal on 23 – 25 June 1999. Its decision delivered on 8 October 1999 relevantly decided that the respondent was not liable to pay lump sum compensation under ss 24 and 27 of the SRC Act to the applicant in respect of his lower back injury. On 5 November 1999 the applicant lodged an appeal from the decision of the Tribunal to the Federal Court of Australia wherein he challenged other aspects of the Tribunal’s decision but not the decision refusing his application for permanent impairment. That appeal was withdrawn on 30 March 2000. On 5 April 2002 the applicant filed an application for special leave to appeal to the High Court in respect of a decision of the Full Federal Court given on 8 March 2002 dismissing the applicant’s appeal from the decision of the Federal Court given on 9 August 2001 in respect of other matters than the applicant’s lower back condition. In the special leave application the applicant sought an order from the High Court that he be awarded lump sum compensation for his back injury. When it was pointed out to him that the High Court had no jurisdiction to make such an order as it did not form any part of the judgment appealed from, the applicant withdrew that part of his special leave application. Apart from the applicant seeking that order, the applicant took no steps to notify the respondent of his intention to challenge the decision of 8 October 1999 until lodgement of the present application for extension of time to lodge a notice of appeal. Statutory time limit on appeal Section 44(2A)(a) of the AAT Act specifies that an appeal must be instituted “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 a person…”. The applicant received a copy of the decision of 8 October 1999 on that date. Accordingly, the time for filing an appeal expired on 5 November 1999. Consequently, the present appeal in respect of which the extension of time is sought, which was lodged on 21 May 2002, was lodged some two years and six months out of time.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicant denies there would be any prejudice to the respondent by the exercise of the discretion in his favour because he would seek to rely totally on the medical evidence in the Tribunal decision. He also tendered orally as an explanation for delay his involvement in other proceedings related to matters other than his lower back condition. Nevertheless, as submitted for the respondent, the record of that which appears in an affidavit before this Court shows that during the period in question the applicant was capable of bringing fresh applications and therefore could have brought an application in respect of the extension of time if necessary in relation to his lower back condition. Conclusion In my opinion the respondent is correct in the submission that the merits of the point which the applicant would seek to argue on an appeal if an extension of time were granted are entirely precluded to him by the application of the rule in Levett’s case, brought into operation by the unchallengeable findings of fact of the Tribunal. In that situation I consider it is correct that the respondent’s motion seeking dismissal of the applicant’s application should be granted on the ground that the application is frivolous.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W150 of 2002

BETWEEN:	JAMES COOPER APPLICANT
AND:	COMCARE RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	20 JUNE 2002
WHERE MADE:	PERTH

JUDGE:	RD NICHOLSON J
DATE:	20 JUNE 2002
PLACE:	PERTH