Munswamy v Australian Postal Corporation - [2016] FCA 98

FEDERAL COURT OF AUSTRALIA
Munswamy v Australian Postal Corporation [2016] FCA 116

Appeal from: Munswamy v Australian Postal Corporation [2015] FCA 678

File number(s): NSD 971 of 2015

Judge(s): MARKOVIC J

Date of judgment: 19 February 2016

Catchwords: PRACTICE AND PROCEDURE – application for extension of time to appeal from a decision of the Federal Court of Australia – where primary judge dismissed application for review of a decision of the Administrative Appeals Tribunal

Legislation:
Administrative Appeals Tribunal Act 1975 ss 43(1), 43(2B)

Federal Court Rules 2011 r 36.03, 36.05

Cases cited:
Hunter Valley Developments Pty Ltd and Others v Cohen (1984) 3 FCR 344

Kelly v Australian Postal Corporation [2015] FCA 1064

Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Munswamy v Australian Postal Corporation [2014] AATA 757

Munswamy v Australian Postal Corporation [2015] FCA 678

Parker v R [2002] FCAFC 133

SZSQL v Minister for Immigration and Boarder Protection [2015] FCA 294

Date of hearing: 2 February 2016

Registry: New South Wales

Division: General Division

National Practice Area: Employment & Industrial Relations

Category: Catchwords

Number of paragraphs: 62

Solicitor for the Applicant: David Chen, Capital Lawyers

Solicitor for the Respondent: Kristina Marie Miller, Sparke Helmore

ORDERS

NSD 971 of 2015

BETWEEN:
ISHWARI MUNSWAMY

Applicant

AND:
AUSTRALIAN POSTAL CORPORATION

Respondent

JUDGE:

MARKOVIC J

DATE OF ORDER:

19 FEBRUARY 2016

THE COURT ORDERS THAT:
1.The application for extension of time to file a notice of appeal is dismissed.
2.The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT
MARKOVIC J:
BACKGROUND

This is an application pursuant to Rule 36.05 of the Federal Court Rules 2011 (Cth) (the Rules) for an extension of time within which to file a notice of appeal from a judgment of a Judge of this Court delivered on 7 July 2015: Munswamy v Australia Postal Corporation [2015] FCA 678 (Munswamy). The proceeding before the primary judge was an appeal pursuant to section 44(1) of the Administrative Appeals Tribunal Act (1975) (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal (the Tribunal). The primary judge made orders dismissing the applicant's appeal and ordering the applicant to pay the respondent's costs as agreed or taxed.
The last date for filing a notice of appeal pursuant to rule 36.03(a)(i) of the Rules was 28 July 2015. The application for an extension of time within which to file a notice of appeal was lodged with the Court on 17 August 2015. In support of her application, the applicant relies on her affidavit sworn 3 December 2015 and two affidavits of David Chen, her solicitor, sworn 14 August 2015 and 4 December 2015 respectively.
The respondent opposes the application for an extension of time in which to file a notice of appeal.
PRINCIPLES GOVERNING EXTENSION OF TIME
The decision to grant…

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

Case: [2016] FCA 98
Decision Date: 19 February 2016

CaseChat Overview and Summary

Munswamy v Australian Postal Corporation is a case in which the Federal Court of Australia was asked to decide whether to grant an extension of time to the applicant, Munswamy, for filing a notice of appeal from a decision of the Administrative Appeals Tribunal (AAT). The primary judge had dismissed an application for review of a decision of the AAT. The applicant argued that the primary judge had erred in her findings and conclusions and sought an extension of time to appeal against the decision of the primary judge.

The legal issues in the case were whether the primary judge had erred in her approach or findings and whether the applicant had provided an adequate explanation for the delay in filing the notice of appeal. The applicant argued that the primary judge had erred in three respects: (1) by failing to hold that the AAT's credit findings were unreasonable and/or irrational; (2) by failing to consider that the AAT had constrained itself by the terms of the consent orders; and (3) by failing to consider that the AAT had failed to give reasons for its decision. The applicant also argued that the primary judge had not considered all of the evidence before her.

The court found that the primary judge had not erred in her findings or approach. The court found that the applicant's case was rejected on the facts and that there was no merit in the grounds of appeal. The court also found that the applicant had provided an adequate explanation for the delay in filing the notice of appeal and that there was no prejudice to the respondent. However, the court found that the grounds of appeal were without merit and that the application for an extension of time to file a notice of appeal should be dismissed with an order that the applicant pay the respondent's costs.

In summary, the Federal Court of Australia dismissed the applicant's application for an extension of time to file a notice of appeal and ordered the applicant to pay the respondent's costs. The court found that the primary judge had not erred in her approach or findings and that the grounds of appeal were without merit. The court also found that the applicant had provided an adequate explanation for the delay in filing the notice of appeal and that there was no prejudice to the respondent.

Orders

Orders of the court

1. The application for extension of time to file a notice of appeal is dismissed.

2. The applicant pay the respondent’s 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

In those paragraphs, the Tribunal refers to parts of the medical evidence before concluding at [41] that it was satisfied "from the evidence that the effects of the 2008 injury which several of the doctors felt should have lasted only a few weeks or months, were no longer compensable following the settlement of Ms Munswamy's claim at the Tribunal in April 2011" (emphasis added). A proper reading of the Tribunal's reasons does not lead one to conclude that the Tribunal felt itself constrained by the terms of the consent orders. Rather as the primary judge found at [18], the applicant's case "was rejected on the facts". I can discern no error in the approach or findings of the primary judge. She reviewed the Tribunal's decision and concluded on her own analysis that the Tribunal had reached its conclusions on the basis of the facts before it. There is no merit in this ground of appeal.Ground 1(c) By this ground the applicant asserts that the primary judge erred in law by failing to hold that the Tribunal's credit findings were unreasonable and/or irrational. The primary judge addressed this aspect of the applicant's claims at [26] to [36] of her judgment. The applicant submitted before the primary judge that the Tribunal's adverse credit findings against her were based on flimsy or incorrect factual foundations analogous to the circumstances in Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145 (SZSNW). Those parts of SZNSW relied on by the applicant were extracted by the primary judge at [26] and [27] as follows:26The first aspect concerns the Tribunal’s adverse credit finding against the applicant. It was submitted that the Tribunal’s conclusions were based on flimsy or incorrect factual foundations, analogous to the circumstances in Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145 (SZSNW) …27The observations by Mansfield J in SZSNW, submitted the applicant, are also applicable. Mansfield J said:[15] It is clear from Li [Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332] that the principle or standard of reasonableness generally applies to decisions made under the Act, and is not confined to discretionary decisions. The reasons for judgment of French CJ addressing “Reasonableness” would appear to be directed to the exercise of a statutory discretion: see at [23], but his Honour’s observations at [26]–[30] are of more general application. His Honour refers to “the rules of reason” as an essential element of lawfulness in decision-making, and to “the framework of rationality”, as a descriptor of a range of what might be seen as subsets of, or illustrations of, that general principle. Some illustrations referred to do not relate to discretionary judgments. The plurality judgment at [72] made the same point, as did Gageler J at [91]–[92]. Gageler J in [91] also made the point through a reference to Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 300 that the implied condition of reasonableness covers both why a decision is made and how it is made.[16] Like French CJ in Li at [30], I do not find it necessary to explore whether the boundaries of rationality and reasonableness differ in principle. That is because, in this matter, notwithstanding the detailed reasons of the IMR for rejecting the claim of the first respondent, the decision of the IMR is unreasonable in the sense discussed in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 per Dixon J, and as explained by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 234. It is not a matter where the IMR’s decision is within the area of “decisional freedom” (as explained by French CJ in Li at [28]) because it wrongly attributes to the first respondent a failure to complain of a particular matter in circumstances where, plainly, that complaint was made and it significantly builds on that wrongful attribution to reject the claims generally made by the first respondent.

Decision

Reasons for decision

In my view grounds 2(a) and 2(b) in the draft notice of appeal are without merit. CONCLUSION While the applicant has provided an adequate explanation of the reason for the delay in filing a notice of appeal and there cannot be said to be any prejudice flowing to the respondent, in my view the grounds of appeal she proposes to rely on are without merit. In the circumstances, the applicant's application for an extension of time within which to file a notice of appeal should be dismissed with an order that the applicant pay the respondent's costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Munswamy v Australian Postal Corporation [2015] FCA 678
File number(s):	NSD 971 of 2015
Judge(s):	MARKOVIC J
Date of judgment:	19 February 2016
Catchwords:	PRACTICE AND PROCEDURE – application for extension of time to appeal from a decision of the Federal Court of Australia – where primary judge dismissed application for review of a decision of the Administrative Appeals Tribunal
Legislation:	Administrative Appeals Tribunal Act 1975 ss 43(1), 43(2B) Federal Court Rules 2011 r 36.03, 36.05
Cases cited:	Hunter Valley Developments Pty Ltd and Others v Cohen (1984) 3 FCR 344 Kelly v Australian Postal Corporation [2015] FCA 1064 Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Munswamy v Australian Postal Corporation [2014] AATA 757 Munswamy v Australian Postal Corporation [2015] FCA 678 Parker v R [2002] FCAFC 133 SZSQL v Minister for Immigration and Boarder Protection [2015] FCA 294
Date of hearing:	2 February 2016
Registry:	New South Wales
Division:	General Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	62
Solicitor for the Applicant:	David Chen, Capital Lawyers
Solicitor for the Respondent:	Kristina Marie Miller, Sparke Helmore

JUDGE:	MARKOVIC J
DATE OF ORDER:	19 FEBRUARY 2016