Polito, M. v Australian Postal Commission

[1987] FCA 107

Re: MARCELLO POLITO
And: AUSTRALIAN POSTAL COMMISSION
No. G81 of 1986
Practice

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Forster J.

CATCHWORDS

Practice - Application for extension of time within which to appeal from Administrative Appeals Tribunal relevant considerations - application twelve weeks out of time and unlikely to succeed - extension refused.

Administrative Appeals Tribunal Act 1975 s.44(2A)

Compensation (Commonwealth Government Employees) Act 1971

Sukarno v. Minister for Immigration and Ethnic Affairs (29.6.84 unreported)

Mavra v. Logan and Others (1980) 24 SASR 567

HEARING

ADELAIDE

#DATE 10:3:1987

JUDGE1

This is an application for extension of time within which an appeal to this Court may be instituted against a decision of the Administrative Appeals Tribunal ("the Tribunal"). The decision was given on 11 August 1986 and the application for extension of time was dated and lodged on 3 December 1986. Section 44(2A) of the Administrative Appeals Tribunal Act 1975 is as follows -

"(2A) An appeal by a person under sub-section (1) or (2) shall be instituted -

(a) not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is furnished to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows; and

(b) in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976."

1. In this case the time limited by s.44(2A)(a) expired on 8 September 1986. The application for extension of time was dated and issued a little more than twelve weeks later.

2. I respectfully adopt the words of a Full Court of this Court in its judgment in Sukarno v. Minister for Immigration and Ethnic Affairs (29 June 1984 unreported) when in dealing with an application for an extension of time within which to appeal the court (Bowen C.J., Sheppard and Morling JJ.) said -
   
   

"In the circumstances of this paticular case two matters arise for consideration. First, whether the reasons he has shown for his delay are such as to excuse the delay and would justify us in allowing him to institute an appeal beyond the time set down by the statute. The second question is whether the applicant has demonstrated that his appeal may have sufficient prospects of success to make it just that he should now be allowed to proceed with it."

1. So far as the first question is concerned the matter was at all relevant times in the hands of the applicant's solicitor. Shortly after the Tribunal handed down its decision the solicitor sought instructions from the applicant as to appealing against the decision and advised the applicant to go away and think about it. On 20 August the applicant saw his solicitor again and instructed him to proceed with an appeal. The applicant had been legally aided and on 27 August the solicitor wrote to the Legal Services Commission seeking an extension of his legal aid assignment for the purpose of instituting an appeal. On 16 September the Legal Services Commission wrote to the solicitor extending the assignment "in order to lodge a notice of appeal but would also be glad if you would obtain independent counsel's advice concerning the chances of success".

2. Instead of proceeding forthwith with an application for an extension of time the applicant's solicitor for some unexplained reason decided, he said, to obtain counsel's opinion before proceeding further. He had some difficulty in finding counsel who would accept the brief to advise. He finally found counsel "in about December" and on 3 December 1986 filed the application for extension of time so as to avoid any further delay but before he had counsel's advice on the prospects of success.

3. There are therefore two periods of the delay to be considered. The first is that between 9 September 1986 and say 22 September 1986. The letter from the Legal Services Commission should have been delivered in the ordinary course at least by 18 September and by the exercise of expedition and diligence it should have been possible to file an application for extension of time by Monday 22 September. I consider that there is a reasonable explanation for the first period of delay. Indeed it would have been very difficult, if not impossible, for the applicant to institute his appeal within time.

4. The second period of the delay is from 23 September until 3 December a period of just over eleven weeks. With all respect to the solicitor there is just no reason so far as he is concerned for this further period of delay but what of the applicant? He had instructed an apparently competent solicitor and left the matter to him. There is no evidence as to whether or not he made any enquiry of the solicitor during the period of eleven weeks and the period was not so long that one could fairly criticise him for not making any enquiry. No prejudice has been occasioned to the respondent because of the delay.

5. In all the circumstances I am of the opinion that the applicant should not because of his solicitor's delay only be precluded from having his appeal heard. (See Mavra v. Logan and Others (1980) 24 SASR 567 and cases there cited).

6. There remains the question of the likelihood of success of the applicant's appeal if instituted.

7. A notice of appeal has been lodged on 3 December 1986 in anticipation I presume of an extension of time being granted. This notice of appeal is exiguous in the extreme. It complains that the Tribunal erred in fact and in law in finding that the applicant was not entitled to compensation after 8 January 1981. The grounds are stated in the notice to be -
   
   

1. That the determination of the Tribunal is not supported by the evidence or weight of evidence.

2. That the Tribunal erred in fact in finding that the injury of 9 June 1980 was not a contributing factor to ongoing incapacity after 8 January 1981.

1. An appeal from a decision of the Tribunal lies to this Court on a question of law only so that ground 2. is of no use to the applicant. Ground 1. on the other hand may raise a matter of law if it is taken as claiming that there was no or no sufficient evidence before the Tribunal upon which the Tribunal could make the findings of fact which it did.

2. The argument before me ranged somewhat outside the grounds stated in the notice of appeal. I permitted this on the basis that the notice of appeal should in my view be treated as a draft and that if an extension of time be granted it will be necessary for the applicant to file a fresh notice of appeal pursuant to that grant of extension in which the grounds of appeal can be more adequately stated.

3. It is necessary to recite some basic facts. The applicant was a postman and on 9 June 1980 he suffered an injury to his back in the course of his employment with respect to which liability to pay workmen's compensation was admitted. He resumed work on 13 August 1980 and on 2 September 1980 was involved in a fight at work with one of his superiors. As a result of the fight the applicant was dismissed from his employment by the respondent.

4. After a great deal of delay, the reaons for which are not now relevant, a determination of the applicant's claim for worker's compensation was delivered by a delegate of the Commissioner for Employees' Compensation on 11 November 1985. The delegate determined -
   
   

(a) that during the period from 12 August 1980 to 2 September 1980 the applicant suffered no loss of earnings and was therefore not entitled to payments of compensation.

(b) that during the period from 3 September 1980 to 14 January 1985 the applicant would have continued to be employed by the respondent on light duties although partially incapacitated for work had it not been for his dismissal and he would not have suffered any loss of earnings and is therefore not entitled to weekly payments of compensation even though he was unable to find work outside the employ of the respondent during this period.

(c) that the applicant should be deemed to be totally incapacitated for work subsequent to 15 January 1985 because of the provisions of s.26 of the Compensation (Commonwealth Government Employees) Act 1971.

1. The applicant applied to the Tribunal to review the decision in order to reverse finding (b) and obtain compensation for the period from September 1980 to January 1985. The respondent applied to the Tribunal to review the determination in order to reverse finding (c).

2. The applicant succeeded in having finding (b) reversed by the Tribunal so that during the period from 3 September 1980 to 14 January 1985 if the applicant suffered from a work related incapacity for work he would be entitled to compensation if no work were actually available to him notwithstanding the fact that he had been discharged from the employ of the respondent where there was light work available to him. However the Tribunal found that the applicant's work related incapacity ceased in January 1981 and that he was not entitled to any compensation thereafter. The applicant now complains that in its application to the Tribunal for a review the respondent did not seek to have the delegate's finding that the applicant was partially incapacitated from September 1980 to January 1985 upset and indeed that the proceedings were commenced on the footing that he was so incapacitated. It is conceded that a party to proceedings before the Tribunal is not strictly bound by his grounds of appeal but the complaint is as I understood it that the causation of the applicant's disability during this period was first raised by the respondent in cross-examination of the orthopaedic surgeon called by the applicant and not given much emphasis by counsel for the respondent in his final address. Perusal of the evidence before the Tribunal reveals that the point was fairly and clearly raised with the surgeon in cross-examination and the Tribunal based itself upon this evidence when making the finding which it did. I am unable to say whether the criticism of the respondent's counsel's address before the Tribunal is valid or not, I simply observe that the same counsel appeared for the respondent before me and he said that he made a considerable feature of it and that counsel for the applicant before me did not appear before the Tribunal and was not really in a position to say whether or not this was so. It is complained however that in some way the applicant was denied natural justice because of the fact that this issue arose for the first time during the hearing before the Tribunal and took the applicant by surprise. The applicant however was represented before the Tribunal by counsel other than the counsel who appeared for him in this Court and if he felt embarrassed by surprise he had a simple remedy and that was to seek an adjournment from the Tribunal to enable him to meet the new issue. He did not do this. Even if this complaint were properly pleaded before me I do not consider that the applicant is at all likely to succeed on it, rather the reverse.

3. The applicant also complains that the Tribunal found as a fact that any work related disability resulting from the applicant's accident in 1980 was spent by January 1981. This is a pure question of fact and there was evidence to support it. I am unable to see that the applicant has any chance of success in attacking this finding and this is so whether or not the injury in 1980 caused an aggravation of some pre-existing disease.

4. I conclude with little difficulty that even if the applicant's notice of appeal were amended he would not be able to discharge the onus of convincing me that he has "demonstrated that his appeal may have sufficient prospects of success to make it just that he should now be allowed to proceed with it".

5. The application for extension of time is dismissed with costs.