FEDERAL COURT OF AUSTRALIA
Ludowyk v Superannuation Complaints Tribunal [2013] FCA 1153
Citation: Ludowyk v Superannuation Complaints Tribunal [2013] FCA 1153 Appeal from: Application for leave to appeal: Ludowyk v Superannuation Complaints Tribunal [2013] FCA 692 Parties: PATRICIA ANNE LUDOWYK v SUPERANNUATION COMPLAINTS TRIBUNAL File number: ACD 84 of 2013 Judge: GRIFFITHS J Date of judgment: 1 November 2013 Catchwords: PRACTICE AND PROCEDURE – application for an extension of time to appeal – application of relevant principles – whether sufficient merit in proposed grounds of appeal Legislation: Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 12, 22, 37, 46
Superannuation Act 1976 (Cth) ss 137, 157Federal Court Rules 2011 r 36
Cases cited: Budd v the Department of Education, Employment and Workplace Relations [2009] FCA 345
Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344
Mentink v The Minister for Home Affairs [2013] FCAFC 113
Phillips v Australian Girls’ Choir Pty Limited [2001] FMCA 109
Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359Date of hearing: 1 November 2013 Place: Canberra Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 32 Counsel for the Applicant: Mr A Anforth Solicitor for the Applicant: Lander & Co, Solicitors Respondent: The respondent did not appear
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 84 of 2013
BETWEEN: PATRICIA ANNE LUDOWYK
ApplicantAND: SUPERANNUATION COMPLAINTS TRIBUNAL
Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
1 NOVEMBER 2013
WHERE MADE:
CANBERRA
THE COURT ORDERS THAT:
1.The interlocutory application for an extension of time to appeal be dismissed.
2.There be no order as to costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 84 of 2013
BETWEEN: PATRICIA ANNE LUDOWYK
ApplicantAND: SUPERANNUATION COMPLAINTS TRIBUNAL
Respondent
JUDGE:
GRIFFITHS J
DATE:
1 NOVEMBER 2013
PLACE:
CANBERRA
REASONS FOR JUDGMENT
The court has before it an interlocutory application for an extension of time under r 36.05 of the Federal Court Rules 2011. The applicant seeks leave to file a notice of appeal against a judgment handed down on 16 July 2013. The respondent in the proceedings is the Superannuation Complaints Tribunal (“the SCT”). It has indicated that it does not wish to participate in the interlocutory hearing and that it neither opposes nor consents to the application.
The applicant’s solicitor has filed an affidavit in support of the interlocutory application which provides an explanation for the applicant’s failure to file an appeal within the 21 days prescribed by r 36.03 of the Federal Court Rules2011. The application for an extension of time was filed on 16 August 2013, that is, 10 days late.
These reasons are structured as follows: first, I will outline the applicant’s grievances as presented to the primary judge which will include a summary of the long history underlying the proceedings. Secondly, I will summarise the judicial review…
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- Case
- [2013] FCA 1153
- Decision Date
CaseChat Overview and Summary
The court had to consider various principles when determining whether to grant an extension of time. While no special circumstances needed to be demonstrated by the applicant, the court had to be satisfied that it was proper to extend time. Additionally, the applicant needed to provide an adequate explanation for the delay. Although the absence of prejudice to the respondent was a factor in favour of granting an extension, it was not sufficient in itself to warrant the grant of an extension. The merits of the substantive application were also relevant. In this case, the applicant's proposed grounds of appeal were primarily based on errors of law, and the court found that these grounds lacked merit.
The court examined the five grounds of appeal proposed by the applicant and found that they were not sufficient to warrant an extension of time. The applicant's proposed grounds of appeal related to errors of law in the construction and application of statutory provisions by the Superannuation Complaints Tribunal and the primary judge's non-acceptance of the applicant's case in respect of those matters of construction. The court concluded that these grounds of appeal were not sufficient to warrant an extension of time, and therefore, the interlocutory application for an extension of time to appeal was dismissed. There was no order as to costs.
In summary, the court found that while the applicant had provided an acceptable explanation for the delay in seeking an extension of time, the lack of merit in the proposed grounds of appeal outweighed the other factors that could have warranted an extension of time. The interlocutory application for an extension of time to appeal was dismissed, and there was no order as to costs.
Orders
Orders of the court
1. The interlocutory application for an extension of time to appeal be dismissed.
2. There be no order as to costs.
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
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
For current purposes, the following matters are potentially relevant to the exercise or otherwise of the discretion under r 36.05. First, there is no requirement for the applicant to show any special circumstance, but the Court must be satisfied that it is proper to extend time. Prima facie, cases started outside the stipulated time period will not be accommodated. Secondly, the applicant must provide an adequate explanation for the delay. Thirdly, while prejudice to the respondent is a material factor weighing against an extension of time, the absence of such prejudice, as is the case here, is not enough to warrant the grant of an extension of time. Fourthly, and perhaps most significantly in the context of this case, the merits of the substantive application are a relevant consideration, while noting that some caution may be required, in particular cases, in assessing those merits at the interlocutory stage, particularly where questions of fact are involved. Consideration Applying those principles here, matters which weigh in favour of extending time include, first, the applicant delayed only 10 days beyond the stipulated period for commencing an appeal before seeking an extension of time. Secondly, I am also prepared to accept that the applicant has offered, through her instructing solicitor, an acceptable explanation for missing the time period under the rules. Those matters are dealt with in Mr Lander’s affidavit and broadly relate to medical issues which the applicant was experiencing at the relevant times. Thirdly, as indicated above, there has been no suggestion of any prejudice to the respondent were leave granted. In my view, however, these considerations are outweighed by the lack of merit in the proposed grounds of appeal. In assessing those grounds at an interlocutory stage, it is significant to my mind, as Mr Anforth acknowledged in oral argument, that no errors of fact are raised by the draft notice of appeal. The applicant’s proposed grounds of appeal relate to errors of law which are said to arise from the SCT’s construction and application of various relevant statutory provisions, and the primary judge’s non‑acceptance of the applicant’s case in respect of those matters of construction. Against that background, I will now address the merits of the draft notice of appeal. In support of her application to extend time, the applicant has filed a draft notice of appeal which contains the following five grounds of appeal: 1.His Honour Foster J in the court below misconstrued section 12(1) and section 37(6) Superannuation (Resolution of Complaints) Act 1993.2.His Honour erred in law in failing to find that the construction of the above provisions and the tests adopted by the Superannuation Complaints Tribunal constituted an unlawful exercise of federal judicial power by the Tribunal.3.His Honour failed to consider the essence of the principal argument advanced by the Appellant.4.In the alternative to 3, if His Honour did not consider the Appellant’s principal argument then he failed to provide any adequate reasons for the manner in which he dealt with the principal argument.5.His Honour misconstrued and misapplied section 22(3) Superannuation (Resolution of Complaints) Act 1993 in relation to the new evidence provided by the Appellant to the Tribunal and the Tribunal’s decision to treat the Appellant’s application as having been withdrawn.