Quigg v Australian Postal Corp

[1999] FCA 623

FEDERAL COURT OF AUSTRALIA

Quigg v Australian Postal Corp [1999] FCA 623

PRACTICE & PROCEDURE – application for an extension of time to appeal a decision of an administrative tribunal.

LUCIA QUIGG V AUSTRALIAN POSTAL CORPORATION

NG 1392 OF 1998

JUDGE:         BEAUMONT J.
DATE:           28 APRIL 1999
PLACE;         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1392 OF 1998

BETWEEN:	LUCIA QUIGG Applicant
AND:	AUSTRALIAN POSTAL CORPORATION Respondent
JUDGE:	BEAUMONT J.
DATE OF ORDER:	28 APRIL 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The time for the filing of a notice of appeal be extended up to and including 7 May 1999, but the appeal should be limited to the point described as the “natural justice” ground.

2.The costs of today’s proceedings be reserved.

3.The parties be directed to each let the Associate to Justice Beaumont have a written outline of submissions on the day before the hearing

4.The parties approach the Associate to Justice Beaumont to obtain a hearing date. 

5.The need for an appeal book be dispense with.

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	NG 1392 OF 1998

BETWEEN:	LUCIA QUIGG Applicant
AND:	AUSTRALIAN POSTAL CORPORATION Respondent

JUDGE:	BEAUMONT J.
DATE:	28 APRIL 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

1. Before the Court is an application for an extension of time for the filing of an appeal against a decision of the Administrative Appeals Tribunal (“the Tribunal”).  The decision of the Tribunal was given on 12 November 1998 in Sydney.  The solicitors for the applicant, and the applicant herself, were resident in Newcastle.  The applicant's solicitors received the reasons for decision on 13 November 1998.  The time for filing an appeal to this Court, namely 28 days, expired on 10 December 1998, which was a Thursday.  On Monday, 14 December 1998, the solicitors for the applicant attempted to file a notice of appeal but the document was not accepted at the Registry because it appeared to be out of time.

2. In summary, therefore, the applicant's solicitors were two working days out of time, that is to say, Thursday 10 and Friday 11 December.  Standing alone, that would not in itself be a reason for refusing the extension.  Mr Hart, the solicitor for the applicant, has given an explanation of the course of the history of the matter in the period 13 November 1998 to 14 December 1998 which satisfies me that a reasonable explanation of the failure to meet the timetable has been given.  However, the Australian Postal Corporation, in opposing the application for extension of time, further submits that there is no reasonable prospect at all that the appeal will succeed.

3. In essence, the grounds of any appeal that may be brought on behalf of the applicant are sought to be grounded on a contention that the applicant was denied procedural fairness in the conduct of the proceeding before the Tribunal. 

4. I would not, on this occasion, attempt to summarise that case because, having been taken to the transcript and the reasons for judgment and some of the exhibits before the Tribunal, it is apparent to me that, potentially at least, complex questions of law, and of fact, arise.  The questions of law need to be viewed in the context of the scope of the jurisdiction of the Tribunal to deal with the matter.  I have mentioned some aspects of this in the course of argument and need not repeat them for the reason that I propose to grant the extension of time.  They can be re-visited at the hearing of the appeal itself.  But I'm far from satisfied that when the Tribunal embarked upon the matter, either side had a clear understanding of the issues which they were asking the Tribunal to decide.

5. What is clear, however, is that the hearing before the Tribunal on 4 December 1997 took some hours and was recorded in sixty-one pages of transcript and although this included some cross-examination of the applicant, it also recorded lengthy argument and submissions of those on behalf of the parties.  In the course of such argument and submissions, Senior Member Lewis questioned counsel for the parties on a number of the matters that now are sought to be relied upon to base the appeal on the natural justice ground.  The scope of the dimension of the points sought to be agitated may also be viewed in the size of the reasons for the decision given, as I have said, on 12 November 1998.  Those reasons are some twenty-seven pages.

6. Suffice it to say that I am certainly not satisfied at the present time, with a necessary limited understanding of the matter, that the applicant has no reasonable prospect of success on the natural justice ground.  Some other grounds were mentioned in the draft notice of appeal.  They are there described in par 4 (b) and (c), but they are no longer pressed and no attempt has been made to develop them. 

7. The only ground of appeal now sought to be advanced is that an indication had been given to the applicant’s legal representatives by the Tribunal that “That is not in doubt” and, the argument runs, this misled the applicant’s legal representative into believing that a potential issue need not be further pursued.  There is certainly issue joined between these parties now as to the true meaning and true context in which those remarks were made by Senior Member Lewis but, at this early stage of the proceedings, it is neither necessary nor appropriate that I attempt to resolve that question. 

8. In the circumstances, I am of the view that an extension of time should be granted but that the appeal should be limited to the point that I have described as the “natural justice” ground.  I therefore extend the time for the filing of a notice of appeal up to and including 7 May 1999, but on terms that that notice of appeal shall be confined to the ground I have mentioned.  I will reserve the costs of today’s proceedings.  Ordinarily, I would have ordered that they be the respondent’s costs in the proceedings and prima facie that would be the position and will remain the position.  However, some of the time today has been usefully employed in proceeding, to some distance at least, in the argument of the appeal itself and it may be that that time may properly be apportioned to the hearing of the appeal when it occurs.

9. I think I should direct that the parties each let my associate have a written outline of submissions on the day before the hearing but you can approach my associate to get a hearing date.  I dispense with the need for an appeal book.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated:             28 April 1999

Counsel for the Applicant:	R Tregenza
Solicitor for the Applicant:	Bale Boshev & Associates
Counsel for the Respondent:	B Skinner
Solicitor for the Respondent:	Graham Jones Lawyers
Date of Hearing:	28 April 1999
Date of Judgment:	28 April 1999