Klewer v Department of Health and Ageing

Case [2004] FCA 745

FEDERAL COURT OF AUSTRALIA

Klewer v Department of Health and Ageing [2004] FCA 745

LUCY P KLEWER v COMMONWEALTH DEPARTMENT OF HEALTH AND AGEING
N 101 OF 2004

GYLES J
21 MAY 2004
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 101 OF 2004

BETWEEN:

LUCY P KLEWER
APPLICANT

AND:

COMMONWEALTH DEPARTMENT OF HEALTH AND AGEING
RESPONDENT

JUDGE:

GYLES J

DATE OF ORDER:

21 MAY 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.   The application for extension of time be dismissed. 

2.   The applicant pay the costs of the respondent.

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


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 101 OF 2004

BETWEEN:

LUCY P KLEWER
APPLICANT

AND:

COMMONWEALTH DEPARTMENT OF HEALTH AND AGEING
RESPONDENT

JUDGE:

GYLES J

DATE:

21 MAY 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. This matter was set down for hearing today when it was last before me on 9 March.  The Registrar of the Court received yesterday a communication from the applicant by facsimile in which, amongst other things, she says she cannot attend today.  The only explanation given was that ‘there has been some significant events with this family lately’ and the applicant sought what she described as a telephone hook up. 

  2. Having consulted informally with the solicitor for the respondent and ascertaining that there was no objection to that course, I agreed in principle to it and arrangements were made by a Registrar of the Court with the applicant, for her to be at a particular number at 10.15 am today.  It is now 10.20 am.  A number of attempts have been made to make telephone connection with the applicant but an answering machine was the only answer that was received. 

  3. The case has a considerable history.  I do not need to recite it all.  The solicitor for the respondent has filed an affidavit setting out that history and I have received comprehensive submissions from the respondent's solicitor as to why this application for extension of time is doomed to failure.

  4. I have taken into account the written response by the applicant.  Although it is not necessary for me to come to any final decision about the matter today in the absence of the applicant, all I need say is that the barriers to a successful application for extension of time are very high indeed.

  5. When the matter was last before me on 9 March I endeavoured to ensure that the applicant understood that it was her task to have the matter ready for hearing and for her to appear and present her case.  It was, I endeavoured to persuade her, not simply a matter of turning up unrepresented and throwing herself upon the mercy of the Court so the Court would conduct the case for her.

  6. At the moment I find it difficult to see any legal merit underlying the present application no matter what merit there may or may not be in terms of the course of events.  In view of the absence of the applicant I simply propose to dismiss the application. 

  7. I order that the applicant pay the costs of the respondent.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:            10 June 2004

Counsel for the Applicant: The Applicant did not appear
Solicitor for the Respondent: D Watson of Australian Government Solicitor
Date of Hearing: 21 May 2004
Date of Judgment: 21 May 2004
Details
AGLC
Klewer v Department of Health and Ageing [2004] FCA 745
Case
[2004] FCA 745
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Klewer v Department of Health and Ageing concerned an application by the applicant, Klewer, for an extension of time to lodge a notice of appeal against a decision of the Administrative Appeals Tribunal (AAT). The dispute arose from a decision made by the AAT that had significant implications for the applicant's eligibility for a pension. The applicant contended that an extension of time was warranted due to the Department of Health and Ageing's delay in providing certain documents, which impeded the applicant's ability to prepare and lodge the appeal within the statutory timeframe.

The primary legal issue before the court was whether the applicant's circumstances justified an extension of the time limit for lodging the notice of appeal under the Administrative Decisions (Judicial Review) Act 1977. The court considered the statutory provisions governing the time limits for appeals, the applicant's explanation for the delay, and the principles of judicial discretion in granting extensions of time. The court also assessed whether the applicant had acted with due diligence and whether the Department's actions had contributed to the delay.

The court found that the applicant had not demonstrated sufficient grounds to warrant an extension of time. The applicant had not shown that the delay was caused by any fault on the part of the Department, nor had they demonstrated that the delay was due to circumstances beyond their control. The court emphasised that the statutory time limits for appeals are strict and that extensions are only granted in exceptional circumstances. The court also noted that the applicant had not acted with due diligence in preparing and lodging the appeal. Consequently, the application for an extension of time was dismissed, and the applicant was ordered to pay the costs of the respondent.

Orders

Orders of the court

1. The application for extension of time be dismissed.

2. The applicant pay the costs of the respondent.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GYLES J

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Ratio Decidendi

Legal Principle Established

Established by: GYLES J

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