Deighton, Raymond John v Telstra Corporation Ltd

[1997] FCA 436

C A T C H W O R D S

PRACTICE AND PROCEDURE - extension of time - application to Administrative Appeals Tribunal for extension of time - 4 year delay - seeking to overturn prior settlement - consideration by Tribunal of medical evidence - careful consideration of merits of application - appeal from Tribunal to Federal Court - appeal dismissed by Federal Court at first instance - application for leave to appeal against decision of Judge at first instance out of time - delay explained - prejudice slight - merits of appeal poor - application for leave to extend time refused.

Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)

RAYMOND JOHN DEIGHTON v. TELSTRA CORPORATION LIMITED
NO. WAG 52 of 1997

FRENCH J.
PERTH
22 MAY 1997

IN THE FEDERAL COURT               )
OF AUSTRALIA   )
WESTERN AUSTRALIA                   )
DISTRICT REGISTRY  )
GENERAL DIVISION  )       No. WAG 52 of 1997

B E T W E E N:  RAYMOND JOHN DEIGHTON

Appellant

and

TELSTRA CORPORATION LIMITED

Respondent

MINUTE OF ORDER
JUDGE MAKING ORDER:      FRENCH J.
DATE OF ORDER:  22 MAY 1997
WHERE MADE:  PERTH

THE COURT ORDERS THAT:

1. The Application is dismissed.

2. The Appellant to pay the Respondent's costs of the application.

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  )
GENERAL DIVISION  )  No. WAG 52 of 1997

B E T W E E N:  RAYMOND JOHN DEIGHTON

Appellant

and

TELSTRA CORPORATION LIMITED

Respondent

CORAM:   FRENCH J.
PLACE     PERTH
DATE:     22 May 1997

REASONS FOR JUDGMENT ON APPLICATION FOR EXTENSION OF TIME
  TO FILE AND SERVE NOTICE OF APPEAL

On 23 May 1996, the Administrative Appeals Tribunal refused an application by Raymond John Deighton for an extension of time to appeal to the Tribunal against a decision of a delegate of the former Australian Telecommunications Corporation made on 10 December 1990. The delegate's decision was that the Corporation, which was the predecessor of Telstra Corporation Ltd, was not liable under s.14 of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 to pay compensation to the appellant.

The appellant appealed against the Tribunal's decision and on 13 February 1997 that appeal was dismissed by Carr J.   The time limited for appeal against that decision by O.52 r.15 expired on 6 March.  On 6 May 1997, some two months after that time, the appellant filed an application for an extension of time within which to appeal against the decision of Carr J.

The appellant's original claim, lodged with the respondent in February 1990, was for compensation in respect of various ailments said to have been caused by his exposure to Dieldrin and Creosote while laying cables and treating telephone poles between 1972 and 1986. He lodged an application with the Administrative Appeals Tribunal for review of the delegate's decision refusing his claim. That was on 10 January 1991. But before the matter came on for hearing before the Tribunal it was settled. A Deed of Settlement was signed on 17 December 1992 and the respondent agreed to pay the applicant $28,000 in full and final satisfaction of compensation to which he was entitled. The application to the Tribunal was dismissed by consent under s.42A(1) of the Administrative Appeals Tribunal Act 1975 (Cth) and the sum of $28,000 paid.

On 12 September 1995, the appellant lodged a fresh application for review of the original delegate's decision with the Tribunal.  He sought an extension of time to enable the Tribunal to entertain the review application.  He contended that the execution of the Deed and the consent dismissal of his earlier application were legally ineffective.  He had contracted cancer since that time and said he could bring medical and scientific evidence to show a causal link to his exposure to Dieldrin and Creosote while employed by the respondent.  He also claimed that he had been made by his solicitor to sign the Deed of Settlement against his will.

In its decision the Tribunal first gave consideration to the appellant's contention that his execution of the Deed of Settlement and consent to the dismissal of his application were legally ineffective.  Noting that his signature on the Deed was witnessed by his solicitor who also represented him when the consent dismissal was ordered, the Tribunal could find no substance in those contentions.  It accepted, however, that the consent dismissal did not preclude a fresh application for review subject to the necessary extension of time being granted.

The Tribunal's consideration of the extension of time was closely connected to its consideration of the merits of the proposed fresh application.  It proceeded to consider the medical evidence which the applicant sought to rely upon.  It concluded that the evidence fell well short of establishing the applicant's case.  Having found a weak case
on the merits, the Tribunal also found that the respondent would suffer substantial prejudice if the application for extension of time were granted.

Carr J, in his reasons for judgment, reviewed the Tribunal's reasons.  As the case was conducted before his Honour it reduced to three grounds or questions of law asserted by the appellant:

1.Was the Tribunal obliged to consider the formation of its own opinion about the contribution of the applicant's employment to his condition and in doing so, in the absence of conclusive expert evidence, could it apply its own commonsense.

2.Whether in assessing the applicant's chance of success, the Tribunal failed to apply the test of material contribution and instead applied a more strict test.

3.Whether the Tribunal's reliance upon the Deed of Settlement was a denial of natural justice because it had no submissions nor evidence in relation to its legal effectiveness.

The first two questions were considered concurrently. His Honour referred to the Tribunal's conclusion that it could not reasonably be satisfied that the applicant's employment had contributed in a material degree to the development of his cancer. It did not expressly say what weight it gave to the word "material". It was, however, simply applying the language of s.14 of the Compensation Act and was not obliged to expand upon the question of what weight it gave to that word. The Tribunal was not obliged to apply "its own commonsense" rather than rely upon the medical reports.

As to the third ground, his Honour held that the Tribunal did not rely upon the legal effectiveness of the Deed.  It referred to the execution of the Deed as a factor relevant to the prejudice that would be suffered by the respondent if the extension were to be granted. 

The appellant now seeks leave to appeal out of time against the decision of Carr J.  He has no legal representation but is represented, by leave, by Mr Phillip Semini, a volunteer worker from the Injured Persons Action and Support Association.

Order 52 r.15(2) provides for the case where an application for an extension of time to appeal is lodged outside the 21 day period.  In such a case the Court or a Judge "for special reasons" may give leave to file and serve a notice of appeal.  The special reasons test is an elastic test suitable for applications across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period - Jess v. Scott (1986) 12 FCR 187 at 195. In considering an application for an extension of time it is also appropriate for the Court to consider whether the applicant has demonstrated that his appeal has sufficient prospect of success to make it just that he be allowed to proceed with it - Kalaba v. The Queen (unrep. Fed court Finn J, 13/9/1996); Jones v. The Queen (unrep. Full Court, 17/8/1984); Sukarno v. Minister for Immigration and Ethnic Affairs (unrep. Full Court, 29/6/1984).

In support of the application for extension an affidavit was filed.  There it is said that the appellant has no legal counsel and that legal aid has continually been refused in relation to the application.  In the affidavit the following points are made in relation to the delay:

(i)The appellant has had no assistance with legal advice or assistance to prepare this document until or about 15 April 1997.

(ii)The appellant has expressed an intention to the Respondent in such terms that he would like to appeal from the judgment referred to in this application, and on that basis, it is submitted no prejudice exists as towards the respondent by way of "litigation ambush".

(iii)The appellant suffers from mental retardation in the form of reduced cognitive functioning due to long term chemical/toxic exposure and has been unable to file the necessary forms of his own volition.

(iv)The Appellant is on heavy doses of medication which further impair his ability to communicate intentions and to understand processes
such as those related to the filing of this application.

(v)Although the Appellant is not represented, he has been able to have this form and any future forms prepared on his behalf.

I am prepared to infer that the delay in the lodgment  of the application has occurred by reason of circumstances largely beyond the control of the appellant.  Having observed him in Court and having invited him to address the Court, I am of the view that his general demeanour tends to reinforce the contention that he could not have lodged the requisite forms within the Court or represented himself.  I was satisfied therefore that there is probably a reasonable explanation for the delay and no real evidence of any prejudice to the respondent, arising from the delay, if the extension were to be granted.  The respondent asserts that the appellant has delayed without proper explanation.  It acknowledges he is unrepresented and says it "would not press the point but equally does not consider it to be a point in favour of the applicant". 

The real question in the case is whether there is any reasonable prospect that an appeal against the decision of Carr J could succeed.  The foreshadowed grounds of appeal as set out in the affidavit are as follows:

"(i)There was medical evidence before the Administrative Appeals Tribunal upon which the Appellant could establish a causal connection between his condition and the exposure to chemicals during the course of his employment with the Respondent.

The Administrative Appeals Tribunal failed to give any or any adequate consideration to such evidence which established the Appellant had an arguable case.

By the Administrative Appeals Tribunal determining the application solely on the medical reports, and on the respective weight that the Administrative Appeals Tribunal considered appropriate, and with which the Appellant objects, the Applicant was denied the opportunity to cross examine relevant medical witnesses.

Having regard to the Administrative Appeals Tribunal's findings, the Appellant was denied procedural fairness and
should be given the opportunity at a hearing to present his case in relation to the substantive issues.

(ii)The Administrative Appeals Tribunal held at p 12 that the Respondent would suffer "substantial prejudice" if the application for an extension of time was granted.

The prejudice relied upon by the Administrative Appeals Tribunal was the general prejudice of being required to re-litigate and prejudice in relation to the terms of the Deed of Settlement which was executed in 1992.

There was no evidence before the Administrative Appeals Tribunal as to any particular prejudice in relation to the availability of lay witnesses or medical evidence.

The Respondent had available to it details of a medical examination carried out at it's (sic) request in 1992 alluding to the medical issues.

The Respondent inter alia sought to have the application dismissed as frivolous and vexatious pursuant to Section 42(1)(A) and (1)(B) of the Administrative Appeals Tribunal Act.

The Appellant has at all material times been involved in lengthy and frequent communication with the Respondent as to the matters involved in the application in question.

(iii)That the Federal Court erred in the exercising of its' (sic) discretion in that it failed to properly comprehend the Applicants' [sic] argument and supporting evidence that the manner in which the Tribunal weighed the medical evidence was so abhorrent to any notion of fairness and commonsense that it bordered on the diabolical and was most definitely an abuse of the Tribunals' discretion which should have been exercised with due diligence and fairness.

(iv)That the Federal court erred in the exercising of its' discretion in that it upheld the Tribunal's decision to adopt an unfair merit based assessment in respect of the credibility and field of expertise in respect of medical witnesses, which as a matter of fact, was so abnormally skewed against the only expert in toxicology that any conclusion the Tribunal reached was unjust, illogical and an abuse of process in laymans' terms.

(v) That the Federal Court erred in law when it failed to
order the Administrative Appeals Tribunal to apply a proper standard of proof as to causation.

(vi)That the Federal Court erred in the exercising of its' discretion in that it formed opinions as to the Tribunals' reasons for judgement that were contrary to the written word (as per transcript) of the Tribunal and to do so is an error at law.

(vii)That the Federal Court erred in the exercising of its' discretion in failing to award an extension of time to the Appellant."

In my opinion, having regard to the care with which the Tribunal considered the merits of the application and his Honour's reasons in relation to that consideration, there is no ground of appeal disclosed in Ground (i) which has a reasonable prospect of success.  The contention that the appellant was denied procedural fairness by the Tribunal in relation to the medical evidence was reflected in Grounds (3) and (4) of the grounds to the application lodged before his Honour.  But these were not reflected in the three grounds identified by his Honour as those upon which the appellant (who was legally represented at the time) finally based his appeal.
There is no basis for now advancing a procedural fairness ground in relation to the Tribunal's consideration of the medical evidence.  In any event, it is to be noted that the Tribunal was considering an extension of time application and not a substantive application for review.

The second ground raises the question of prejudice to the respondent.  This was dealt with by his Honour under the third ground before him.  Having regard to the delay and the fact of the consent dismissal and the payment under the Deed, it was plainly open to the Tribunal to infer prejudice to the respondent if the application were to be granted. 

Proposed Grounds (iii) and (iv) relate to the Court's consideration of the way in which the Tribunal considered the medical evidence.  Ground (v) appears to go to the question of the "material contribution" criterion applied by the Tribunal.  None of these grounds, nor the remaining two grounds which disclose very little in the way of
detail, indicate a reasonable prospect of success on appeal.

In my opinion this case has gone as far as it should go.  Although the delay since the judgment of Carr J is relatively minor and explicable in the circumstances and the prejudice flowing from it slight, there is very little prospect of success on an appeal against the decision of Carr J.

In the absence of any reasonable prospect of success for the appeal, to grant an extension of time would be an unfair imposition on the respondent, would waste the limited resources of the Court and would unfairly raise the expectations of the appellant.  The application will be dismissed.

I certify that this and the preceding
  seven (7) pages are a true copy of the
  Reasons for Judgment of his Honour
  Justice French.

Associate:
  Date:

Mr P. Semini appeared for the Appellant.

Counsel for the Respondent: Mr M. Mony de Kerloy
Solicitors for the Respondent: Mony de Kerloy

Date of Hearing: 15 May 1997
Date of Judgment: 22 May 1997