Re: LJUBO MARIC And: COMCARE No. S G51 of 1992 FED No. 107 Number of pages - 12 Administrative Law (1993) 40 FCR 244
COURT
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIAN DISTRICT REGISTRY GENERAL DIVISION O'Loughlin J.(1)
CATCHWORDS
Administrative Law - application to Tribunal for extension of time within which to lodge application to review - application refused - appeal - questions of delay and prejudice - delay seemingly caused by negligence of legal advisers.
HEARING
ADELAIDE, 20 November 1992
#DATE 12:2:1993
Counsel for the Applicant : Mr. R.C. White
Solicitor for the Applicant : Carabelos and Co
Counsel for the Respondent : Mr. R.A. Cameron
Solicitors for the Respondent : Australian Government Solicitor
ORDER
The Court orders that:
1. This application be dismissed.
2. The applicant to pay the respondent's costs to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
O'LOUGHLIN J. The applicant, Ljubo Maric, was formerly employed by the Australian National Railways ("ANR") as a welder. In the course of his employment, he sustained work-related injuries in March 1987 and August 1988. He was duly compensated for a time but by letter dated 30 May 1989, the respondent Comcare, informed Mr. Maric that ANR was no longer liable to make payments of compensation.
Upon receipt of this letter, Mr. Maric consulted his solicitor, a Mr. Grivec, in early June 1989. However, it was not until 20 April 1990, more than ten months later, that Mr. Grivec wrote Comcare requesting a reconsideration of its determination of 30 May 1989. Mr. Grivec has sworn an affidavit in these proceedings on behalf of the applicant. He has acknowledged that Mr. Maric instructed him "to appeal against the decision and to ask for a review...". He then went on to say that "because I was obtaining further medical reports in 1989 it was not until the 20th April 1990 that I wrote Comcare asking for a review of the decision and applying for the review time to be extended...".
These medical reports were dated 5 October 1989 and 21 November 1989. No other explanation was proffered by Mr. Grivec (or by the applicant) for the failure to apply for review within the period of 30 days allowed for by the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) and no explanation was proffered for the delay of five months following the receipt of the last of the medical reports.
Upon receiving Mr. Grivec's letter of 20 April 1990, Comcare wrote him on 29 May 1990 asking that he supply, within 21 days, the reasons for the late application. There being no reply, Comcare wrote Mr. Grivec on 26 September 1990 in these terms:
"To date, no response has been received to our letter of 29 May 1990 requesting reasons for why Mr Maric did not lodge his request for reconsideration within the 30 day limit specified by the Act. On this basis, and in…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Maric, L. v. Comcare [1993] FCA 107 ((1993) 40 FCR 244)
Case
[1993] FCA 107
Decision Date
CaseChat Overview and Summary
In the case of Maric v Comcare, the applicant sought an extension of time within which to lodge an application to review a decision of the Administrative Appeals Tribunal. The matter was before the Federal Court of Australia, which was asked to determine whether the Tribunal should grant the extension. The primary issue before the Court was whether the Tribunal should allow the application for an extension of time, considering the delay and any prejudice to the respondent if the extension were granted. Additionally, the Court needed to address whether the delay was due to the negligence of the applicant's legal advisers.
The Court found that the Tribunal had properly exercised its discretion in refusing the application for an extension of time. The Court held that the delay in lodging the application was significant and there was evidence of prejudice to the respondent if the extension were granted. Furthermore, the Court found that the delay was indeed caused by the negligence of the applicant's legal advisers. These findings led the Court to conclude that the Tribunal's decision was lawful and should be upheld.
Consequently, the Court dismissed the application for an extension of time. It ordered that the applicant pay the respondent's costs, which were to be taxed if not agreed upon. This decision highlights the importance of timely legal action and the potential consequences of negligence on the part of legal advisers. The Court's ruling also reinforces the principle that the Administrative Appeals Tribunal has broad discretion in determining applications for extensions of time, and that such discretion will be respected by the Federal Court unless there is a clear error in the exercise of that discretion.
Orders
Orders of the court
The Court orders that:
1. This application be dismissed.
2. The applicant to pay the respondent's costs to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.