Lovell v K & S Freighters Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Lovell v K & S Freighters Pty Ltd [2023] FCA 968

File number(s): SAD 169 of 2022
Judgment of: O'SULLIVAN J
Date of judgment: 18 August 2023
Catchwords: WORKERS COMPENSATION – application for judicial review of a decision of the Administrative Appeals Tribunal – where the Tribunal affirmed a decision of Comcare to deny liability to pay compensation to the applicant under ss 14, 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – where application for judicial review filed out of time – where extension of time sought – whether acceptable reason for delay provided – whether grounds in the notice of appeal constitute questions of law for purposes of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – application for an extension of time dismissed
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), ss 44(1), (2A)

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 14, 16, 19

Federal Court Rules 2011 (Cth), r 33.13
Cases cited:

Birdseye Australian Securities & Investments Commission [2003] FCAFC 232

Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163

Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344

Ibarcena v Secretary, Department of Family & Community Services [2003] FCA 1354

Martincevic v Commonwealth (2007) 164 FCR 45

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

Xardia v Comcare [2015] FCA 98

Division: Fair Work Division
Registry: South Australia
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 63
Date of last submission/s: 16 April 2023
Date of hearing: 5 April 2023
Counsel for the Applicant: The applicant appeared in person
Solicitor for the First Respondent: Ms K Bradey of McInnes Wilson Lawyers
Counsel for the Second Respondent: There being no appearance

ORDERS

SAD 169 of 2022
BETWEEN:

JOHNATHAN WAYNE LOVELL

Applicant
AND:

K & S FREIGHTERS PTY LTD

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

O'SULLIVAN J

DATE OF ORDER:

18 AUGUST 2023

THE COURT ORDERS THAT:

1.The application for an extension of time is dismissed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

O’SULLIVAN J:

  1. In 2018, the first respondent, K & S Freighters (respondent), entered into a contract with a major poultry producer to deliver feed to various poultry farms. 

  2. In the latter half of 2018, the applicant commenced working for the respondent as a truck driver driving semi-trailers delivering that feed.

  3. New Prime movers and trailers had been purchased by the respondent for the specific purposes of the contract and were identical.

  4. The feed was protected during transport by a tarpaulin which ran on rails over the…

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Details
Case
[2023] FCA 968
Decision Date

CaseChat Overview and Summary

In the case of Lovell v K & S Freighters Pty Ltd, the applicant, Lovell, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) that affirmed a decision by Comcare to deny liability to pay compensation under sections 14, 16, and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The central issue before the court was whether to grant an extension of time for Lovell to file his notice of appeal, which had been filed out of time. This necessitated consideration of whether Lovell provided an acceptable reason for the delay and if the questions he raised in his notice of appeal constituted questions of law under section 44 of the Administrative Appeals Tribunal Act 1975 (Cth).

The court examined the reasons provided by Lovell for the delay in filing his notice of appeal and found them insufficient. Lovell had cited reasons such as a delay in signing a costs agreement and a heart attack, but the court found that these did not sufficiently explain the delay in initiating the appeal process. Furthermore, the court evaluated whether the questions posed in Lovell's draft notice of appeal constituted questions of law. The court concluded that the questions, while framed as legal, were essentially challenges to factual findings made by the Tribunal. As such, they did not meet the criteria for judicial review under section 44 of the AAT Act.

The court dismissed Lovell's application for an extension of time to file his notice of appeal. The reasoning was grounded in the lack of an acceptable explanation for the delay and the finding that the questions raised did not qualify as questions of law. Therefore, the application did not satisfy the requirements for an extension of time under the Federal Court Rules 2011 (Cth).

The court’s decision underscores the importance of timely and adequate justification for delays in filing appeals and the necessity for the questions raised to genuinely constitute legal issues rather than challenges to factual findings.

Orders

Orders of the court

1. The application for an extension of time is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

I would not grant an extension of time to file a notice of appeal which includes this question.Third question - (was) The Member in error by placing complete reliance on the video demonstration of the razor motor and therefore failed to consider other relevant evidence? The underlying assumption is that the Tribunal failed to take into account all relevant evidence and thereby committed an error of law. There is no dispute that the Tribunal accepted video evidence of the operation of a trailer which was the trailer operated by the applicant. The respondent refers to the Tribunal’s decision at [10], [37] [38], [39], [40], [42]-[45], [52], [53], [55], [62], [100] where the Tribunal took into account a range of evidence in relation to the operation of the razor motor and submits the Tribunal did not place “complete reliance” on the video demonstration. It submits that the Tribunal took into account all of the evidence before it and made a number of findings of fact, only one of which was in relation to the operation of the razor motor as demonstrated in the video. The respondent submits that after considering the video footage, the oral evidence of the respondent’s witnesses, as well as the applicant’s evidence about the operation of the razor motor, it made findings of fact. The respondent’s submissions as to what evidence the Tribunal considered in reaching its conclusions as to the razor motor are clearly correct and I accept those submissions. This question, although framed as a question of law, proceeds on a false premise such that it is, in reality, a question of fact, or at best a mixed question of law and fact. A mixed question of fact and law may still be a question of law: Haritos at [62], [110], however the question can only be answered by an inquiry into the facts considered by the Tribunal, a determination of the relevant facts and then the application of the law to those facts, rather than a judicial review of the Tribunal’s fact finding. I do not consider the question is a question of law such that it does not fall within s 44 of the AAT Act: Haritos at [169], [192]. I would not grant an extension of time to file a notice of appeal which includes this question.CONCLUSION In the draft notice of appeal, the applicant seeks to re-agitate matters already determined by the Tribunal. Although the draft notice of appeal identifies three questions which the applicant contends are questions of law, that contention cannot be accepted and the three questions are not questions of law. The application for an extension of time is dismissed.

Decision

Reasons for decision

Sections 44(1) and (2A) of the AAT Act provide:44 Appeals to Federal Court of Australia from decisions of the TribunalAppeal on question of law(1)A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.…When and how appeal instituted(2A) An appeal by a person under subsection (1) or (2) shall be instituted:(a)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 given to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows; and(b)in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976. The procedure for making an application for an extension of time is set out in r 33.13 of the Federal Court Rules2011 (Cth) (FCR):33.13 Application for extension of time to start appeal(1)A person who wants to apply for an extension of time within which to start an appeal mentioned in section 44(2A) of the AAT Act must file an application, in accordance with Form 67.(2)The application must be accompanied by the following:(a) the decision from which the appeal is to be brought;(b) the reasons for the decision, if published;(c) an affidavit stating:(i)briefly but specifically, the facts on which the application relies; and(ii)why the appeal was not filed within time;(d) a draft notice of appeal that complies with rule 33.12.Principles The principles relating to the grant of an extension of time within which to file a notice of appeal are well-settled. The Court has a broad discretion as to whether or not to grant an extension of time and the factors that the Court takes into account include the following:(a)The length of the delay; (b)The applicant’s explanation for the delay;(c)The prejudice, if any, that will be suffered by the respondent if leave to appeal out of time is granted; and(d)The merits of the proposed appeal.Xardia v Comcare [2015] FCA 98 at [6] (Nicholas J). See also Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348-9, (Wilcox J).Documents relied upon At the request of the parties, this application was determined on the papers. The applicant relied upon his affidavits affirmed: 4 November 2022; 18 November 2022; two affidavits affirmed 7 December 2022; 16 January 2023 and 9 March 2023. A number of the affidavits annexed documents directed at the evidence before the Tribunal. One of the affidavits affirmed 7 December 2022, set out a critique of what is contended to be findings by the Tribunal which are wrong and evidence said to contradict those findings. The applicant annexed to his application, a draft notice of appeal which identifies three matters described as questions of law and one question of fact. The respondent relied upon an affidavit of Jack Marshall sworn 6 March 2023 and its written submissions.The parties’ submissions and consideration

Ratio Decidendi

Legal Principle Established

The respondent relied upon an affidavit of Jack Marshall sworn 6 March 2023 and its written submissions.The parties’ submissions and consideration The respondent opposes the application on five grounds:(1)The applicant has not demonstrated that there is an acceptable reason for his delay in lodging his appeal in the initial period between 2 - 30 September 2022;(2)It is not fair and equitable to extend time in view of the chronology of events between 2 - 30 September 2022;(3)The applicant did not take any action to notify the respondent he was intending to appeal the Tribunal decision until 6 February 2022 [sic 2023];(4)The respondent is prejudiced in the form of uncertainty as to the outcome as a result of the applicant’s delay; and(5)None of the questions of law in the draft notice of appeal are, in fact, questions of law but challenges to findings of fact based on evidence that was before the Tribunal or a mischaracterisation of the Tribunal’s decision;Ground 1: Delay during September 2022 and no acceptable reason In his affidavit affirmed 4 November 2022, the applicant deposes at [5]-[11] that:(a)He received a copy of the Tribunal written decision and reasons on 2 September 2022;(b)He understood he had until 30 September to institute an appeal;(c)The solicitors he had retained before the Tribunal agreed to assist him in an appeal to this Court from the Tribunal’s decision;(d)His solicitor went on leave for two weeks;(e)On 26 September 2022, he received an email from his solicitor’s office advising him he needed to sign a costs agreement. He signed the agreement that day;(f)On 28 September 2022, he received an email from his solicitor informing him he was no longer going to represent him in the appeal; (g)On 30 September 2022, he attended his solicitor’s office to collect his file to try and prepare the appeal himself; and(h)He suffered a heart attack on 2 October 2022. No issue is taken by the respondent as to the delay between 30 September 2022 and 4 November 2022. The respondent submits the applicant has failed to provide an adequate explanation for the delay in pursuing the appeal between 2 September 2022 and 30 September 2022. It submits:(a)There is no evidence the applicant’s solicitor was on leave; (b)That on an unknown date but following his solicitor’s return from leave, the applicant’s solicitor sent the applicant a text message and an email asking him to contact him, however there is no evidence that he did so; (c)On 24 September 2022 the applicant’s solicitor sent an email to the applicant concerning the retainer of counsel, but there is no evidence as to whether the applicant contacted his solicitor in response to that email; (d)The reason it took the applicant until 26 September 2022 to sign the costs agreement is not fully explained. It is for these reasons that the respondent submits it is not known what steps, if any, the applicant took between 2 September 2022 and 30 September 2022 to institute an appeal so that the reason for the delay is unexplained.