FEDERAL COURT OF AUSTRALIA
Leach v Comcare [2020] FCA 1206
File number: QUD 704 of 2019 Judgment of: COLLIER J Date of judgment: 21 August 2020 Catchwords: PRACTICE AND PROCEDURE – interlocutory application seeking leave to file a notice of contention out of time – rules 1.39 and 36.24 Federal Court Rules 2011 (Cth) – extension of time to file notice of contention – principles of extension of time – explanation for delay – prejudice to appellant – whether grounds in notice of contention meritorious – substantive matter to be determined by the Full Court on the papers – case management orders appropriate to clarify which grounds of appeal pressed – costs of interlocutory application Legislation: Federal Court of Australia Act 1976 (Cth) ss 20A, 37M, 43
Federal Court Rules 2011 (Cth) rr 1.39, 36.24
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 53(3)(c)
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [2009] HCA 27
Chugg v Pacific Dunlop Limited (1990) 170 CLR 249
Cowell v Taylor (1886) 31 Ch D 34
Hooton v Minister for Home Affairs (2018) 264 FCR 517, [2018] FCAFC 142
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 31 Date of hearing: 18 August 2020 Counsel for the Appellant: Mr M Robertson QC Solicitor for the Appellant: Holding Redlich Counsel for the Respondent: Mr A Berger and Ms K Slack Solicitor for the Respondent: Australian Government Solicitor ORDERS
QUD 704 of 2019 BETWEEN: CRAIG LEACH
Appellant
AND: COMCARE
Respondent
ORDER MADE BY:
COLLIER J
DATE OF ORDER:
21 AUGUST 2020
THE COURT ORDERS THAT:
1.The respondent be granted an extension of time until 4.00 pm on 24 August 2020 to file a notice of contention in the form of the draft notice of contention annexed as Exhibit FD-1 to the affidavit of Fiona Dempsey sworn 10 August 2020.
2.Orders 4 and 6 of the Orders dated 7 July 2020 be vacated.
3.By 4.00 pm on 31 August 2020, the appellant file and serve on the respondent:
(a)any submissions in reply of not more than 10 pages and in accordance with Section 5 of Practice Note APP2, including confirmation that all written submissions previously filed by him relate exclusively to the grounds of appeal pressed, or to otherwise identify any previously filed written submissions no longer relied on by the appellant; and
(b)an affidavit annexing:
(i)a tracked copy of the notice of appeal, reflecting the grounds of appeal pressed or otherwise abandoned; and
(ii)a “clean” version of the document referred to in Order 3(b)(i) of these Orders, with tracked changes accepted.
4.By 4.00 pm on 7 September 2020, the appellant file and serve on the respondent a copy of Part C of the Appeal Book which (in accordance with Practice Note SMIN-3), must:
(a)be filed electronically and not be reproduced in hard copy;
(b)include an index which contains an individual hyperlink to each document included in the…
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- AGLC
- Leach v Comcare [2020] FCA 1206
- Case
- [2020] FCA 1206
- Decision Date
CaseChat Overview and Summary
The court considered the principles governing extensions of time in the context of the Federal Court Rules 2011. It examined the explanation for the delay in filing the notice of contention and assessed whether there was any prejudice to the appellant. The court also reviewed the grounds of appeal to determine if they were substantial enough to warrant the extension of time. The court found that the respondent's explanation for the delay was reasonable and that there was no significant prejudice to the appellant. Furthermore, the court considered the grounds of appeal to be potentially meritorious. Consequently, the court granted the respondent an extension of time to file the notice of contention, subject to specific conditions, and vacated certain previous orders. The court also imposed additional procedural requirements to ensure that the appeal process would proceed efficiently.
The court issued several orders to manage the proceedings effectively. It granted the respondent an extension of time to file the notice of contention, specified the form and content of the document, and required the appellant to clarify which grounds of appeal were being pressed. The court further mandated that the appellant file and serve a tracked copy of the notice of appeal and a clean version of the document. Additionally, the court outlined the format for the electronic filing of Part C of the Appeal Book. Finally, the court determined that the costs of the interlocutory application should be costs in the cause.
Orders
Orders of the court
1. The respondent be granted an extension of time until 4.00 pm on 24 August 2020 to file a notice of contention in the form of the draft notice of contention annexed as Exhibit FD-1 to the affidavit of Fiona Dempsey sworn 10 August 2020.
2. Orders 4 and 6 of the Orders dated 7 July 2020 be vacated.
3. By 4.00 pm on 31 August 2020, the appellant file and serve on the respondent:
(a) any submissions in reply of not more than 10 pages and in accordance with Section 5 of Practice Note APP2, including confirmation that all written submissions previously filed by him relate exclusively to the grounds of appeal pressed, or to otherwise identify any previously filed written submissions no longer relied on by the appellant; and
(b) an affidavit annexing:
(i) a tracked copy of the notice of appeal, reflecting the grounds of appeal pressed or otherwise abandoned; and
(ii) a “clean” version of the document referred to in Order 3(b)(i) of these Orders, with tracked changes accepted.
4. By 4.00 pm on 7 September 2020, the appellant file and serve on the respondent a copy of Part C of the Appeal Book which (in accordance with Practice Note SMIN-3), must:
(a) be filed electronically and not be reproduced in hard copy;
(b) include an index which contains an individual hyperlink to each document included in the index;
(c) comprise only PDF documents which:
(i) are in native format, or, where impracticable to be provided in that form, scanned and in PDF text searchable (OCR) format;
(ii) include appropriate bookmarks; and
(iii) include as the file name the corresponding tab number in the index followed by sufficient descriptor of the document or authority (for example “01.Notice of Appeal.pdf”); and
(d) be consecutively numbered, starting from the first page of the document and excluding the filing covering page.
5. Costs of and incidental to the interlocutory application filed on 10 August 2020 be costs in the cause.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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