Potepa v Comcare

[2000] FCA 396

FEDERAL COURT OF AUSTRALIA

Potepa v Comcare [2000] FCA 396

STANISLAWA POTEPA v
COMCARE

N 1482 OF 1999

TAMBERLIN J
SYDNEY
21 MARCH 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1482 OF 1999

BETWEEN:	STANISLAWA POTEPA APPLICANT
AND:	COMCARE RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	21 MARCH 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application for an extension of time is dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1482 OF 1999

BETWEEN:	STANISLAWA POTEPA APPLICANT
AND:	COMCARE RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	21 MARCH 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application by Mrs Stanislawa Potepa for an extension of time to file and serve a notice of appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) handed down by Senior Member Allen on 26 October 1999.  The Tribunal had rejected Mrs Potepa’s application for review and affirmed the decision under review.  The application for an extension of time was lodged with the Court on 23 December 1999 by which time, under the Administrative Appeals Tribunal Act 1975 (“the Act”) the applicant was thirty days outside the required period.

2. The appeal is sought to be brought under s 44 of the Act which provides that a party to a proceeding before the Tribunal may appeal to the Federal Court on a question of law from any decision of the Tribunal in that proceeding. The section requires that an appeal be instituted 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 allows.

3. It is clear that there is a discretionary power in the Court to extend time.  The question which arises is whether that discretion should be exercised in favour of Mrs Potepa.  The decision appealed from recounts the history of the matter, dating back to an incident which occurred in 1981.  There have been a series of applications made to the Tribunal and two earlier decisions of this Court in relation to those applications which dismissed them.

4. The ground sought to raised in the draft notice of appeal, which has been filed by Mrs Potepa, is that during the hearing of the Tribunal on 26 October Senior Member Allen requested new medical evidence in regard to her injury, which she says she provided.  This medical evidence was rejected by Senior Member Allen and it is contended that this was an error.  Mrs Potepa said that he instead made a reference to an earlier decision of the Tribunal.  She contends that her position has since worsened and that she has been under constant care.

5. In substance, what Mrs Potepa asks is set out in the penultimate paragraph of the grounds, which are said to be questions of law, and that is that the Court is asked to reconsider her case. The requirement of the Act is that there should be a question of law raised as the basis for an appeal and in my view there is no indication of any arguable question of law in the material which has been filed by Mrs Potepa. Mrs Potepa does give an explanation as to the reason why the appeal was lodged late and this is a matter which I take into account and give some weight.

6. However having regard to the history of the matter and to the grounds which are sought to be raised, I am not satisfied that any proper ground in law has been made out for appealing the decision of the Tribunal.  The determination of the weight to be given to the evidence before the Tribunal is a matter for that Tribunal and not for this Court and I am unable, on reading the reasons for judgment of Senior Member Allen, to find any grounds on which an appeal could reasonably be based.

7. Taking this into account, together with the long and lengthy history of this matter, I conclude that this is not an appropriate case in which an extension of time should be granted to enable an appeal to be brought.  Accordingly, I propose to dismiss the application. 

8. Although I have been asked to award costs in favour of Comcare in this matter, I am not satisfied that this is an appropriate case in which to award costs.  I have had regard to the fact that there was some additional evidence put forward before the Tribunal, although it did not convince the Tribunal.  I dismiss the application for an extension of time and I make no order as to costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             31 March 2000

Counsel for the Applicant:	Applicant appeared in person
Counsel for the Respondent:	Ms Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	21 March 2000
Date of Judgment:	21 March 2000