Sambastian v Australian Postal Corporation - [2017] FCA 1232

FEDERAL COURT OF AUSTRALIA
Sambastian v Australian Postal Corporation [2017] FCA 1232

File number: SAD 191 of 2017

Judge: WHITE J

Date of judgment: 13 October 2017

Catchwords: PRACTICE AND PROCEDURE – application for extension of time in which to appeal against Administrative Appeals Tribunal decision – Applicant seeks adjournment – Respondent opposes adjournment and seeks dismissal of application under Federal Court Rules 2011 rr 5.22 and 5.23 – adjournment refused – Applicant in default – application for extension of time dismissed.

Legislation:
Administrative Appeals Tribunal Act 1975 (Cth) s 44(2A)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Federal Court Rules 2011 (Cth) rr 5.22, 5.23, 33.12, 33.13

Date of hearing: 13 October 2017

Registry: South Australia

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 25

Counsel for the Applicant: The Applicant did not appear

Counsel for the Respondent: Mr N Swan

Solicitor for the Respondent: Sparke Helmore Lawyers

ORDERS

SAD 191 of 2017

BETWEEN:
ARMAND SAMBASTIAN

Applicant

AND:
AUSTRALIAN POSTAL CORPORATION

Respondent

JUDGE:

WHITE J

DATE OF ORDER:

13 OCTOBER 2017

THE COURT ORDERS THAT:
1.The Applicant’s request for an adjournment is refused.
2.The application for an extension of time filed on 19 July 2017 is dismissed.
3.The Applicant is to pay the Respondent’s costs of and incidental to the application filed on 19 July 2017.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

EX TEMPORE REASONS FOR JUDGMENT
WHITE J:

On 19 July 2017, the Applicant filed an application for an extension of time in which to appeal against a decision of the Administrative Appeals Tribunal (the Tribunal) delivered on 7 April 2017. By that decision, the Tribunal had determined five applications for a review commenced by the Applicant concerning his claim to entitlements under the Safety, Rehabilitation and Compensation Act 1988 (Cth).
Section 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) requires that an appeal to this Court be commenced within 28 days of the receipt by the applicant of the document setting out the terms of the Tribunal’s decision. It is not clear when the Applicant did receive the Tribunal’s decision, but he accepts that he did not commence his application within the 28 day period.
The Court has the power to extend the time for the commencement of an appeal from a decision of the Tribunal. Rule 33.13 of the Federal Court Rules 2011 (Cth) (FCR) contains procedural rules with respect to the making of an application for an extension of time. Amongst other things, it requires that an application for an extension of time be accompanied: (a) by an affidavit stating briefly, but specifically, the facts on which the application relies and why the appeal was not filed within time; and (b) by a draft notice of appeal in a form which complies with r 33.12. The applicant did not file either of those documents. He filed only the application for the extension of…

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 Sambastian v Australian Postal Corporation

Details

AGLC: Sambastian v Australian Postal Corporation [2017] FCA 1232
Case: [2017] FCA 1232
Decision Date: 13 October 2017

CaseChat Overview and Summary

The applicant, Sambastian, filed an application seeking an extension of time to appeal a decision of the Administrative Appeals Tribunal. The respondent, the Australian Postal Corporation, opposed the application and sought its dismissal under the Federal Court Rules 2011. The court was required to determine whether the application for an extension of time should be granted and, if not, whether the application should be dismissed.

The primary issue before the court was whether the applicant had a valid reason for the delay in filing the application for an extension of time. The court considered whether the applicant's reasons were sufficient to justify the extension of time and whether there were any exceptional circumstances that warranted the adjournment. The respondent argued that the applicant was in default and that the application should be dismissed. The court examined the applicant's conduct and the relevant rules governing the application process.

The court found that the applicant had failed to provide a satisfactory explanation for the delay in filing the application. The court held that the applicant was in default and that there were no exceptional circumstances that warranted an extension of time. The court also noted that the applicant had not demonstrated any prejudice that would result from the dismissal of the application. Accordingly, the court dismissed the application for an extension of time and ordered that the application be dismissed.

Orders