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Sagigi v Comcare

Sagigi v Comcare

Case [2009] FCA 385 22 April 2009

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FEDERAL COURT OF AUSTRALIA
Sagigi v Comcare [2009] FCA 385
COMPENSATION – application for extension of time to file and serve a notice of appeal from decision of Tribunal – Tribunal’s obligation to provide reasons upon request pursuant to s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) – reasons must be adequate but they need not be self-contained – adequacy of reasons is a matter of substance – no utility in granting an extension of time where appeal would inevitably fail on grounds raised in draft notice of appeal
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Comcare v Amorebieta (1996) 66 FCR 83 considered
Comcare v Davies (2008) 173 IR 294 considered
Comcare v Moon (2003) 75 ALD 160 referred to
Cypressvale Pty Ltd v Retail Shopping Lease Tribunal [1996] 2 Qd R 462 considered
Dodds v Comcare Australia (1993) 31 ALD 690 considered
Housing Commission of New South Wales v Tatmar Pastoral Co [1983] 3 NSWLR 378 considered
O’Keefe v Comcare [1998] FCA 603 referred to
ALOMA SAGIGI v COMCARE
NSD 1687 of 2008
EDMONDS J
22 APRIL 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1687 of 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER JOSEPHINE KELLY

BETWEEN:
ALOMA SAGIGI
Applicant

AND:
COMCARE
Respondent

JUDGE:

EDMONDS J

DATE OF ORDER:

22 APRIL 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application for an extension of time in which to file and serve a notice of appeal is refused.
2.The applicant pay the respondent’s costs of the application.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1687 of 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER JOSEPHINE KELLY

BETWEEN:
ALOMA SAGIGI
Applicant

AND:
COMCARE
Respondent

JUDGE:

EDMONDS J

DATE:

22 APRIL 2009

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This is an application for an extension of time to file and serve a notice of appeal from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) affirming an anterior determination of the respondent rejecting a claim by the applicant in respect of an injury she sustained to her lower back on 5 November 1996 in the course of her work as an employee of the Australian Customs Service.
The applicant’s claim is for permanent impairment of 10% to her thoraco-lumbar spine and was made pursuant to ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’).
APPLICATION FOR EXTENSION OF TIME
The circumstances giving rise to the need to make an application for an extension of time to file and serve a notice of appeal were the subject of:
(1)Three affidavits sworn by the partner in the firm of solicitors having the carriage of the matter on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sagigi v Comcare

Details

AGLC: Sagigi v Comcare [2009] FCA 385
Case: [2009] FCA 385
Decision Date: 22 April 2009

CaseChat Overview and Summary

In the case of Sagigi v Comcare, the applicant, Sagigi, sought an extension of time to file and serve a notice of appeal against a decision made by Comcare, the Commonwealth's workplace safety regulator. Sagigi argued that she required additional time due to specific circumstances that had delayed her ability to prepare the appeal. The matter was heard and determined by a judge of the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the applicant had provided sufficient justification for an extension of time to file her notice of appeal. The court had to assess whether the reasons provided by Sagigi were compelling enough to warrant an extension, considering the principles of fairness and the importance of timely legal proceedings. Additionally, the court needed to determine whether the grounds of appeal proposed in the draft notice of appeal were likely to succeed if the extension were granted.

In reaching its decision, the court considered the evidence and arguments presented by Sagigi regarding her reasons for the delay. The court concluded that while some of the grounds of appeal had been abandoned, the remaining grounds were unlikely to succeed if the extension were granted. The court found that Sagigi had not demonstrated a compelling reason to justify an extension of time, as the delay was not attributable to any extraordinary circumstances. Furthermore, the court noted that granting the extension would not serve the interests of justice, as the likelihood of success on appeal was minimal. Consequently, the application for an extension of time was refused.

The final orders of the court were that the application for an extension of time to file and serve a notice of appeal be refused, and that the applicant pay the respondent's costs of the application. This decision underscores the importance of timely filing of appeals and the stringent criteria that must be met to obtain an extension of time in such matters.

Orders

Orders of the court

1. The application for an extension of time in which to file and serve a notice of appeal is refused.

2. The applicant pay the respondent’s costs of the application.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

EDMONDS J

For these reasons, I do not think the applicant can succeed on what remains of ground 2 of her draft notice of appeal.CONCLUSION For the foregoing reasons, I am of the view that if I was to grant the applicant an extension of time to file and serve a notice of appeal containing those grounds in the draft notice of appeal accompanying her application, as have not been abandoned but are still pressed, she would inevitably fail. In those circumstances, there would be no utility in granting that extension of time and the application is refused.

Ratio Decidendi

Legal Principle Established

Established by: EDMONDS J

Full text does not contain this section.

Citations

AGLC Citation

Sagigi v Comcare [2009] FCA 385

Most Recent Citation

Kowalski v Chief Executive Officer of Medicare Australia [2009] FCA 1072

Cases citing this decision · 5 of 5 shown

Griffiths v Australian Postal Corporation
[2018] FCA 520 Para 27

…sential that the court should insist on its fulfilment . But it is the substance of the obligation that matters ”. See also: Sagigi v Comcare [2009] FCA 385 at [18] per Edmonds J.…
Ceric v Prosegur Australia Pty Limited
[2016] FCA 1068 Para 1

…ptical. However, its abbreviated reasoning should be assessed, I think, against the way that the case was conducted before it: see Sagigi v Comcare [2009] FCA 385 at [17] per Edmonds J. In large part, the hearing was centrally concerned with the evidence of an orthopaedic surgeon, Professor Ehrlich, who gave evid…
Jordan & Verne (SSAT Appeal)
[2012] FMCAfam 21 Para 10

…asons comply with the statutory mandate, they will generally be adequate. The substance is more important than the form: Sagigi v Comcare [2009] FCA 385 at [15] – [18]; Christiansen v Social Security Appeals Tribunal [2010] FCA 1146 at [30] – [31].…
Christiansen v Social Security Appeals Tribunal
[2010] FCA 1146 Para 14

…The obligation of the AAT to give reasons was recently summarised by Edmonds J in Sagigi v Comcare [2009] FCA 385 in the following terms: [17] Similar observations were more recently made by Flick J in Comcare v Davies (2008) 173 IR 294 at [31] and [32]: 31 …The nature and extent of this obligation [under s 43(2B…
Kowalski v Chief Executive Officer of Medicare Australia
[2009] FCA 1072 Para 14

…e relevant legal principle to assess the adequacy of reasons has recently been discussed, together with a number of authorities, in Sagigi v Comcar [2009] FCA 385. In this matter, the Tribunal’s reasons indicate the material upon which it made its decision that it did not have jurisdiction, it referred to the rel…

View all 5 citing cases →

Cases cited in this decision · 7 of 7 shown

Comcare v Davies (No 2)
[2008] FCA 566 Para 17

…etail Shopping Lease Tribunal [1996] 2 Qd R 462 per McPherson and Davies JJA at 492. Similar observations were more recently made by Flick J in Comcare v Davies (2008) 173 IR 294 at [31] and [32]: 31.… The nature and extent of this obligation [under s 43(2B) of the AAT Act] has been extensively canvassed. For the purposes…
Zhang v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCAFC 30 Para 17

…as in fact had regard to the matters which it must address’ : Zhang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 30 at [14]. 32. The extent of the reasoning provided in accordance with s 43(2B) must also be considered against the backdrop of the contentions advanced for resolution a…
Comcare v Moon
[2003] FCA 569 Para 1

…e Tribunal did not consider the submission, founded upon the observations of von Doussa J in O’Keefe v Comcare [1998] FCA 603 and of Mansfield J in Comcare v Moon (2003) 75 ALD 160 at [50], consistent with the approach taken by Jenkinson J in Comcare v Amorebieta (1996) 66 FCR 83 that a finding of permanent impairment u…
O'Keefe v Comcare
[1998] FCA 603 Para 1

…l for the applicant submitted that the Tribunal did not consider the submission, founded upon the observations of von Doussa J in O’Keefe v Comcare [1998] FCA 603 and of Mansfield J in Comcare v Moon (2003) 75 ALD 160 at [50], consistent with the approach taken by Jenkinson J in Comcare v Amorebieta (1996) 66 FCR…
Comcare v Amorebieta
[1996] FCA 312 Para 1

…Keefe v Comcare [1998] FCA 603 and of Mansfield J in Comcare v Moon (2003) 75 ALD 160 at [50], consistent with the approach taken by Jenkinson J in Comcare v Amorebieta (1996) 66 FCR 83 that a finding of permanent impairment under Tables 9.5 or 9.6 was available despite Dr McGill’s findings on examination. In that last-mentio…
Minister for Immigration and Ethnic Affairs v Wu Shan Liang
[1996] HCA 6 Para 17

…ether some inadequacy may be gleaned from the way in which the reasons are expressed’ : Minister for Immigration & Ethnic Affairs v Liang (1996) 185 CLR 259 at 272. But it is equally important ‘to review the Tribunal’s reasons to be satisfied that the Tribunal has in fact had regard to the matters which it must addre…
[1927] AC 37
[1927] AC 37 Para 18

…on its fulfilment. But it is the substance of the obligation that matters . Indeed, as Lord Sumner pointed out in SS Hontestroom v SS Sagaporack [1927] AC 37 at 50, even a Judge’s reasons on a question of fact will not be vitiated by ‘imperfections in form and expression’. Section 43 is not to be construed in…

Legislation cited in this decision · 2

Administrative Appeals Tribunal Act 1975 (Cth)
1 mention (from Para 4)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
1 mention (from Para 2)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1687 of 2008

JUDGE:	EDMONDS J
DATE OF ORDER:	22 APRIL 2009
WHERE MADE:	SYDNEY

JUDGE:	EDMONDS J
DATE:	22 APRIL 2009
PLACE:	SYDNEY