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Peczalski v Comcare

Peczalski v Comcare

Case [1999] FCA 366 1 April 1999

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Peczalski v Comcare [1999] FCA 366
Administrative Law

AG 59 of 1998

FEDERAL COURT OF AUSTRALIA

Peczalski v Comcare [1999] FCA 366

ADMINISTRATIVE LAW - Workers' Compensation - application for an extension of time to appeal under s 44 Administrative Appeals Tribunal Act 1975 (Cth) - parallel application for an extension of time to seek orders for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) dismissed - reasons for delay - merits of proposed appeal - prejudice to the respondent

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1), s 7(7), s 59, s 114

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 10(2)(b)

Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 applied

Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314 cited

Chowdhary v Bayne [1999] FCA 41 cited

Repatriation Commission v Tuite (1992) 37 FCR 571 applied

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 applied

Secretary, Department of Social Security v Van Den Boogaart (1995) 37 ALD 619 cited

Comcare v A'Hearn (1993) 45 FCR 441 cited

Livesey v New South Wales Bar Association (1983) 151 CLR 288 cited

Webb v The Queen (1994) 181 CLR 41 cited

Comcare v Burton (1998) 50 ALD 846 cited

Commonwealth v Ford (1986) 65 ALR 323 cited

FINN J

CANBERRA

1 April 1999

#DATE 1:4:1999

Applicant appeared in person
Counsel for the Respondent: L Gabriel
Solicitor for the Respondent: Barker Gosling
Date of Hearing: 29 March 1999
Date of Judgment: 1 April 1999

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY AG59 OF 1998
FINN J

Number of pages - 6

BETWEEN: ALEXANDER S PECZALSKI
Applicant
AND: COMCARE
Respondent
JUDGE: Finn J
DATE OF ORDER: 1 APRIL 1999
WHERE MADE: CANBERRA

THE COURT ORDERS THAT:

1. The application be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1 On 27 August 1997 the Administrative Appeals Tribunal ("the Tribunal") upheld an appeal to it by Comcare, the present respondent, and determined that as at 8 January 1992 the applicant, Alexander Peczalski, had not suffered an injury in terms of s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act"). It gave reasons for its decision. On 29 August the applicant's solicitor wrote to the applicant's wife notifying her of the Tribunal's decision and requesting that she communicate it to her husband who was at the time in Poland (the country of his birth).

2 Mr Peczalski returned to Australia on 18 December 1997. It is his evidence that he did not receive the reasons until about that time nor was he aware until then that he must lodge any appeal to this Court within 28 days of the decision. He has conceded though that he was aware of the decision itself prior to his return. I would emphasise in passing that Mr…

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.

Continue reading Peczalski v Comcare

Details

AGLC: Peczalski v Comcare [1999] FCA 366
Case: [1999] FCA 366
Decision Date: 01 APRIL 1999

CaseChat Overview and Summary

In Peczalski v Comcare, the Federal Court of Australia considered an application by Alexander Peczalski for an extension of time to appeal a decision of the Administrative Appeals Tribunal (AAT) which had rejected his claim for workers' compensation. The AAT had found that Peczalski had not suffered an injury within the meaning of the Safety, Rehabilitation and Compensation Act 1988 as his condition pre-dated his employment. Peczalski sought an extension of time to appeal on the basis that he had only recently become aware of the AAT's decision and that he suspected some documents had been falsified. The court noted that Peczalski had ample time to appeal once he became aware of the AAT's decision but chose not to. The court found that Peczalski had provided no convincing explanation for the delay, had taken no steps to contest the AAT's decision until after Comcare demanded a refund, and that there was a risk of prejudice due to the passage of time and fading memories. The court also found that the merits of the proposed appeal were weak, particularly in light of the adverse credibility findings made by the AAT. Accordingly, the court dismissed the application for an extension of time.

Orders