Peters v Comcare

Case [2013] FCA 808

FEDERAL COURT OF AUSTRALIA

Peters v Comcare [2013] FCA 808

Citation: Peters v Comcare [2013] FCA 808
Parties: CHERYL PETERS v COMCARE
File number: VID 360 of 2013
Judge: BROMBERG J
Date of judgment: 13 August 2013
Catchwords:

PRACTICE AND PROCEDURE – Application for extension of time to appeal decision of Administrative Appeals Tribunal – whether an acceptable explanation provided by applicant for failure to institute an appeal within time – whether prejudice to the respondent if leave granted – whether the applicant’s proposed appeal raises an arguable case of legal error.

COSTS – Discretion to order costs – whether good reason for departing from ordinary rule that successful party be awarded costs.

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44, 44(1), 44(2A)
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A(1), 5A(2)
Cases cited: Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Comcare v A’Hearn (1993) 45 FCR 441
Pham v Commonwealth [2002] FCA 669
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Rhodium Australia Pty Ltd v Deputy Commissioner of Taxation [2012] FCAFC 17
Ruddock v Vadarlis (No 2) (2001) 115 FCR 229
Date of hearing: 7 August 2013
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 40
Solicitor for the Applicant: Ms C Weeks of CR Weeks Legal Practice
Counsel for the Respondent: Ms C Dowsett
Solicitor for the Respondent: Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 360 of 2013
BETWEEN:

CHERYL PETERS
Applicant
AND:

COMCARE
Respondent

JUDGE:

BROMBERG J

DATE OF ORDER:

13 AUGUST 2013

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The time by which the applicant may institute an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) in relation to the decision of the Administrative Appeals Tribunal constituted by Senior Member Handley given on 21 September 2012, is extended to 20 August 2013.

2.The applicant pay the respondent’s costs of the applicant’s application for an extension of time filed on 13 May 2013.

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


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 360 of 2013
BETWEEN:

CHERYL PETERS
Applicant
AND:

COMCARE
Respondent

JUDGE:

BROMBERG J

DATE:

13 AUGUST 2013

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. The applicant (“Ms Peters”) is an employee of the Australian Taxation Office employed as a Property Operations Officer.  On 7 October 2009, Ms Peters made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”).

  2. Ms Peters’ claim for compensation was rejected by the respondent (“Comcare”).  Ms Peters then applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of Comcare’s decision.  On 21 September 2012, the Tribunal affirmed Comcare’s decision. 

  3. Ms Peters seeks to challenge the Tribunal’s decision and wishes to institute an appeal to this Court pursuant to the jurisdiction conferred by s 44 of the Administrative Appeals…

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Details
AGLC
Peters v Comcare [2013] FCA 808
Case
[2013] FCA 808
Decision Date

CaseChat Overview and Summary

The Federal Court of Australia heard an application by Ms Peters to extend the time limit for appealing a decision of the Administrative Appeals Tribunal (AAT). The respondent, Comcare, argued against the extension on various grounds, including the delay in making the application and the lack of a reasonable excuse for the delay. Ms Peters sought to justify the delay and argued that there was merit in her proposed appeal on several grounds. The court was tasked with determining whether the delay in making the application was unreasonable and whether there was a reasonable excuse for the delay.

The court found that the delay in making the application was unreasonable and that there was no reasonable excuse for the delay. However, the court also found that there was merit in Ms Peters' proposed appeal and that the case was an appropriate case for the grant of an extension of time. The court considered various factors in reaching its decision, including the seriousness of the issue, the length of the delay, and the reasons for the delay. The court concluded that the delay was not so unreasonable as to deprive the court of jurisdiction to grant an extension of time and that the application should be allowed.

In light of its decision, the court considered the question of costs. The court noted that although Ms Peters had succeeded in her application, she should nevertheless pay the costs incurred by Comcare in relation to the application. The court found that there was good reason to depart from the ordinary rule that a successful party is entitled to its costs. The court held that the delay in making the application was the cause of the costs incurred by Comcare and that there was no basis for concluding that the costs arose as a result of anything other than Ms Peters' failure to institute her appeal within the 28-day period provided for. Accordingly, the court ordered that Ms Peters pay Comcare's costs of the application for an extension of time.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Ms Peters also relied on a number of other grounds to support her contention that there was merit in her proposed appeal. Having come to the view that I have arrived at, it is not necessary that I deal with those other grounds, although I doubt that an arguable case could have been established on the basis of the other grounds raised. CONCLUSION AND COSTS Having regard to each of the above factors in combination, I consider that this case is an appropriate case for the grant of an extension of time in which to institute an appeal. I will make an order to that effect. Comcare seeks an order for its costs. Ms Peters made no submission on the question of costs. In my view, although Ms Peters has succeeded, she should nevertheless pay the costs incurred by Comcare in relation to her application. The Court has a wide discretion as to costs. The discretion must be exercised judicially. Ordinarily, a successful party will be entitled to its costs, however it is entirely consistent with the relevant principles to order costs against a successful party “for some reason connected with the case”: Rhodium Australia Pty Ltd v Deputy Commissioner of Taxation [2012] FCAFC 17 at [21] (Marshall, Edmonds and Greenwood JJ); and see Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [9] (Black CJ, Beaumont and French JJ). For the successful applicant to be ordered to pay the respondent’s costs, I must be satisfied that there is good reason to depart from the ordinary rule. In this case I am satisfied that good reason to depart from the ordinary rule arises. But for Ms Peters’ delay, the application would not have been necessary and the costs which Comcare has incurred would not have been incurred. It was not unreasonable for Comcare to resist the application made by Ms Peters. There is therefore no basis for concluding that the costs incurred by Comcare arose as a result of anything other than the failure by Ms Peters to have instituted her appeal within the 28 day period provided for. In those circumstances, it follows that Ms Peters should pay Comcare’s costs of the application for an extension of time.

Ratio Decidendi

Legal Principle Established

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