Parker v Comcare

[2002] FCA 727

FEDERAL COURT OF AUSTRALIA

Parker v Comcare [2002] FCA 727

ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal refusing the applicant an extension of time within which to appeal – applicant injured in motor vehicle accident in the course of employment – claim for compensation for physical and psychological injuries – whether the Tribunal erred in law in refusing the application for an extension of time – appeal to the Court only lies on an error of law – Court does not determine the merits of the application – extension of time will not be granted where there is no chance of the substantive appeal succeeding

Commonwealth Employees’ Compensation Act 1930 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth), s 42B

FRANK ROBERT PARKER v COMCARE

No Q 258 of 2001

SPENDER J
BRISBANE
23 AUGUST 2002

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 258 OF 2001

BETWEEN:	FRANK ROBERT PARKER APPLICANT
AND:	COMCARE RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	23 AUGUST 2002
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The application for an extension of time to appeal from the decision of the Administrative Appeals Tribunal be refused.

2.The applicant 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.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 258 OF 2001

BETWEEN:	FRANK ROBERT PARKER APPLICANT
AND:	COMCARE RESPONDENT

JUDGE:	SPENDER J
DATE:	23 AUGUST 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The applicant, Mr Frank Robert Parker, served in the Australian Regular Army Supplement (National Service) during the period 20 April 1966 to 19 April 1968.  On 19 June 1967, he was injured in a motor vehicle accident in Leighton Field, New South Wales.  It appears that the applicant, having dropped off three colleagues at their barracks, proceeded to travel home when the motor vehicle accident occurred.  The applicant was initially treated  at the Fairfield District Hospital, but subsequently transferred to a military hospital known as 2 Camp Hospital, Ingleburn.  He was discharged from that hospital in August 1967, but was subsequently readmitted about sixteen days later for a further nineteen days.  He then returned to employment with his unit until discharge on 19 April 1968 at the expiration of his National Service. 

2. On 17 April 1996, the applicant made a claim for compensation in respect of the physical injuries suffered in the motor vehicle accident, in addition to “nerves, anxiety, depression, stress, lack of confidence and concentration, substance abuse, panic attacks,  sleep disturbance.”  In his claim for compensation, Mr Parker says that he first received medical treatment for his psychological injuries in 1967.  In the period between 1967 and the lodging of his claim, he had been treated for chronic alcoholism and schizophrenia.  He now attributes those conditions, as well as other particular orthopaedic conditions, to his employment with the army generally and to the motor vehicle accident specifically.  Over the intervening years, he appears to have had a large number of admissions to hospital for treatment, but the details of those admissions and the records pertaining to those admissions have not been provided. 

3. Mr Parker's claim for compensation was first denied by a delegate of Comcare (“the respondent”) on 29 November 1996.   This determination was confirmed upon  reconsideration of that decision on 17 March 1997.  The applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) to review the decision on 18 April 1997.  That application was given the number Q1997/381.  On 17 June 1997, Deputy President Forgie, to whom the matter had been allocated, noted that Mr Parker had, on 13 June 1997, lodged a request in writing with the Tribunal advising that he wished to withdraw that application.

4. On 28 January 1999, notwithstanding that his first application had been dismissed at his invitation, Mr Parker lodged a further application with the Tribunal, seeking to extend the time within which to lodge an application for review of the reviewable decision dated 17 March 1997.  That matter was also listed before Deputy President Forgie and allocated number Q1998/930. 

5. The question of the respondent being prejudiced because of the delay by the applicant in making a claim for compensation relates to questions of liability under the relevant statutory scheme applicable at the time of Mr Parker's employment, which was the Commonwealth Employees’ Compensation Act 1930 (Cth). Those questions involved, amongst other things, the circumstances of the motor vehicle accident, the state of Mr Parker's health in the period immediately prior to his discharge from service in 1968, and his health and employment history in the period subsequent to the completion of his National Service.

6. On 13 June 2000, Mr Parker's application for an extension of time was heard by Deputy President Forgie.  On that occasion, the applicant was represented by Mr Durley of counsel.  During the course of those proceedings, Mr Parker gave evidence in-chief and was cross-examined.  At all times Mr Durley was in attendance.  Following a short adjournment after Mr Parker withdrew as a witness, Mr Durley indicated to the Tribunal that Mr Parker had given him instructions to withdraw his application on the basis that Mr Parker “doesn’t feel able to cope with anymore pressure.”  Mr Durley indicated to the Tribunal that he had explained to Mr Parker whether, in any event, he would be successful in his claim for compensation. 

7. What occurred on 13 June 2000 is highly important to this matter, because, while it is clear that Mr Parker has serious health problems and has had them for a considerable time, the questions of law which this Court has to consider do not comprehend those matters, but are, unfortunately for Mr Parker, confined only to the question of whether there is legal error in the conclusion of Deputy President Forgie of 13 June 2000, where she declined to grant an extension of time.

8. The transcript of what occurred in the Tribunal on that date appears in the Appeal Book at pages 77 and following.  I wish specifically to record the following.  The Deputy President said:

   “Well, Mr Parker, I’ve got no question at all that you really have some major problems and illnesses and that you have really had a really bad struggle, a really difficult struggle for years and years and years.  I know that you - and I accept that you, that you think it’s all related to that accident that was when you were in the army, but the trouble is that when you didn’t ask for compensation right back 30 years ago.  The law as it is says, all right, you can ask later but you have to sort of satisfy some things.

   One of the things is about whether or not everybody is going to be able to look at what you said happened and work it out. Just to get to the right answer -   not to make you feel bad or anything, just to get it to the right answer and it really is - because of all the time that’s gone by and the way in this community we destroy records, we just can’t find them anymore, Mr Parker.  It’s all just too long ago to be following up the claim.  So I know that you have got lots of problems, but I’m really sorry that we can’t help you with the Comcare matter.

   MR PARKER:  That’s injustice.

   THE D. PRESIDENT:  Yes.

   MR PARKER:  I appreciate you – you need to be strict.”

   After further conversations about how Mr Parker was to get home, Mr Wallace asked:

   “I’m just wondering how you are going to dispose of the matter?

   THE D. PRESIDENT: I’m going to dispose of it by not granting the extension of time.  Sorry, that’s what I'm going to do.
   …

   MR DURLEY:  We were happy to consent to that.

   MR WALLACE:  We would consent to that.”

9. On 13 June, the formal order of the Tribunal was as follows:

   “UPON APPLICATION of the applicant lodged on 28 January, 1999 to extend the time within which to lodge an application to review of a reviewable decision of the respondent dated 17 March, 1997 AND UPON HEARING Mr Durley of counsel on behalf of the applicant and Mr Wallace of counsel on behalf of the respondent IT IS DECIDED that the application to extend time is refused.”

10. Mr Parker made a further application to the Tribunal on 19 February 2001, which was identified by matter number Q2001/152. This matter was allocated to Mr Muller, who was then a Senior Member of the Tribunal and is now a Deputy President. Senior Member Muller, on 25 May 2001, dismissed the application under section 42B of the Administrative Appeals Tribunal Act 1975 (Cth) on the basis that the application was “vexatious”.  The word “vexatious” is there used in its legal sense of being a matter which had previously been disposed of, which was being sought to be reopened.

11. On 5 December 2001, Mr Parker made an application to the Federal Court seeking an extension of time to file and serve a notice of appeal against Senior Member Muller’s decision.  When the matter came before me for directions, I indicated that the applicant should properly direct any application for judicial review to the decision of Deputy President Forgie of 13 June 2000, and that the current application for an extension of time would be taken to relate to that decision.

12. The court directed Mr Parker to file an affidavit explaining why he did not appeal the decision of 13 June 2000 within the time prescribed by the Administrative Appeals Tribunal Act 1975 (Cth) and to set out what he said were the errors of law which he claims were made by Deputy President Forgie.

13. An appeal to this Court lies only on a question of law.  The court does not determine whether Mr Parker is or is not entitled to compensation.  The Court does not determine whether there should have been an extension of time granted or not granted.  The only question of law which arises in this case is whether Deputy President Forgie erred in declining to grant an extension of time on the basis that the matter was so old and that important and relevant records were no longer available.

14. An extension of time will not be granted to Mr Parker by the Court if there is no real chance of his substantive appeal succeeding.  In the present circumstances, and in the light of the matters to which I have referred, the decision which Mr Parker seeks to challenge is the decision by Deputy President Forgie not to grant an extension of time within which to bring his claim for compensation.  That application has no prospects of success and, for that reason, his application for an extension of time within which to appeal from the decision of Deputy President Forgie is refused. 

15. In accordance with the usual principle, the respondent should have its costs of the application.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated:            27 August 2002

The applicant appeared on his own behalf
Counsel for the Respondent:	Mr T. Howe
Solicitor for the Respondent:	Sparke Helmore Solicitors
Date of Hearing:	23 August 2002
Date of Judgment:	23 August 2002