Sourouvali v Comcare

[1999] FCA 1578

FEDERAL COURT OF AUSTRALIA

Sourouvali v Comcare [1999] FCA 1578

PRACTICE AND PROCEDURE – leave to appeal – first application for leave discontinued – second application for leave out of time - delay between original decision and second application – no question of law in appeal – Court on appeal not to examine merits of Tribunal decision. 

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

Federal Court Rules O 53 r 7 O 20 r  20(1)(a)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 cited
Peczalski v Comcare [1999] FCA 366 applied
Waterford v Commonwealth (1987) 163 CLR 54 applied

LIA SOUROUVALI v COMCARE

VG 541 of 1999

GOLDBERG J
3 NOVEMBR 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG541 of 1999

BETWEEN:	LIA SOUROUVALI Applicant
AND:	COMCARE Respondent
JUDGE:	GOLDBERG J
DATE OF ORDER:	3 NOVEMBER 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

(1)       The application filed on 28 September 1999 is dismissed.

(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.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG541 of 1999

BETWEEN:	LIA SOUROUVALI Applicant
AND:	COMCARE Respondent

JUDGE:	GOLDBERG J
DATE:	3 NOVEMBER 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant, Lia Sourouvali, applies to the court pursuant to s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth)and O 53 r 7 of the Rules of the Federal Court of Australia for an extension of time within which to file and serve a notice of appeal from a decision of the Administrative Appeals Tribunal which was handed down on 25 September 1997.

2. In order to understand how the application comes before the Court it is necessary to set out a short chronology of the circumstances.  The applicant was an employee of the Commonwealth and she sought compensation and benefits under the Safety, Rehabilitation and Compensation Act 1988 (Cth) which benefits were administered by the respondent Comcare. On 17 August 1995, Comcare made the following determination:

   “(a)From 11 March 1993 there is a liability under the Safety, Rehabilitation and Compensation Act in respect of temporary aggravation of chronic long-term personality problems with paranoid features, that aggravation constituting a disease within the meaning of the Act that was contributed to in a material degree by [the applicant's] employment with ACT Health; and

   (b)Liability ceases to be payable under the Act on and from 23 August 1993 as the weight of evidence indicates that any incapacity or requirement for medical treatment on and from that date was due solely to the natural progression of the pre‑existing and underlying chronic long-term personality problem with paranoid features. In this regard the weight of evidence indicates that [the applicant’s] perception of being treated unfairly by the Office of Multicultural Affairs was the product of the underlying paranoid features of [the applicant’s] and an unrealistic expectation…