FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ROBERTS v REPATRIATION COMMISSION | [2004] FMCA 926 |
| ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – whether error of law – Veterans entitlements – whether emphysema war caused. PRACTICE AND PROCEDURE – Extension of time – relevant principles – explanation for delay not a precondition. |
Administrative Appeals Tribunal Act 1975, s.44(1), 44(2A)(a)
Veterans Entitlements Act 1986
Administrative Decisions (Judicial Review) Act 1977
Human Rights and Equal Opportunity Act 1986, s.46PA(2)
Phillips v Australian Girls Choir & Anor [2001] FMCA 109
Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344
Pham v Commonwealth of Australia (1992) 28 ALD 211
Re Hartley; John Younger v Repatriation Commission (1992) 28 ALD 211
Repatriation Commission v Deledio (1998) 83 FCR 82
Commonwealth Bank Corporation v Percival (1988) 20 FCR 176
Repatriation Commission v Hill (2002) 69 ALD 581
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Kattenderg v Repatriation Commission (2002) FCA 412
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 295
| Applicant: | BRYAN JAMES ROBERTS |
| Respondent: | REPATRIATION COMMISSION |
| File No: | MZ 1489 of 2003 |
| Delivered on: | 2 December 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 12 May 2004 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Mr C Thomson |
| Solicitors for the Applicant: | Peter J Leifman |
| Counsel for the Respondent: | Ms J Macdonnell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application for extension of time be refused.
The Applicant shall pay the Respondent’s costs to be taxed in default of agreement in accordance with Schedule 1 of the Federal Magistrates Court Rules pursuant to Order 62 of the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1489 of 2003
| BRYAN JAMES ROBERTS |
Applicant
and
| REPATRIATION COMMISSION |
Respondent
REASONS FOR JUDGMENT
In this matter Mr Roberts (the applicant) applied pursuant to s.44(2A)(a) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) for an extension of time to appeal under s.44(1) of the AAT Act from a decision of the Administrative Appeals Tribunal (the AAT) delivered on 11 April 2003.
In its decision the AAT had affirmed that part of a decision of the Veterans Review Board (the board) that the applicant's condition of emphysema was not war-caused for the purposes of the Veterans Entitlements Act 1986 (the VE Act) and set aside that part of the board's decision which had found that the applicant's allergic rhinitis was not war-caused.
The applicant now seeks to appeal from that part of the AAT's decision which held his condition of emphysema was not war-caused.
It is noted that when the matter was fixed for hearing I decided that the court would determine both the extension of time application together with the substantive appeal. The applicant has claimed the substantial ground of appeal is that the AAT erred in law when applying the test to determine whether within the meaning of the…
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- Case
- [2004] FMCA 926
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the applicant had provided sufficient grounds to justify an extension of time beyond the statutory limit for lodging an appeal. The Court needed to consider the relevant statutory provisions and case law concerning the extension of time for appeals, particularly in light of the principles established in the case of Briginshaw v Briginshaw. The Court also had to assess whether the applicant's reasons for the delay were compelling and whether the delay had caused any prejudice to the Commission.
In its judgment, the Court held that the applicant had not demonstrated exceptional circumstances warranting an extension of time. The Court noted that while the applicant had presented a case with some merit, the delay in lodging the appeal was due to the applicant's own negligence and inaction. The Court emphasised that the statutory time limits for appeals are important to ensure the finality of administrative decisions and that extensions of time should only be granted in exceptional circumstances. Consequently, the Court refused the application for an extension of time and ordered that the applicant pay the Commission's costs in accordance with the Federal Court Rules.
Orders
Orders of the court
1.
The Application for extension of time be refused.
2.
The Applicant shall pay the Respondent’s costs to be taxed in default of agreement in accordance with Schedule 1 of the Federal Magistrates Court Rules pursuant to Order 62 of the Federal Court Rules.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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