Wilson, H.R. v The Secretary, Department of Social Security

[1985] FCA 428

AUSTRALIAN CAPITAL TERRIT3RY

DISTRICT REZISTRY

JUDGE MAKi!U ORDER	:	Neaves J .
DATE OF ORDER	:	30 August 1985

WHEFE MADE : Canberra

THE COURT ORDERS THAT:

1. The time withln whlch to lnstltute praceedlngs

in this Court by way of appeal from the decision

of the Admlnistrative Appeals Tribunal given on 3 December 1934 be extendee up to and including

4 July 1985.

2 . The applicant not later than 10 September 1985

flle and serve on the respondent a document

settmg aut m t h preclsion the questions of la51

to be raised on tLe appeai.

2 .

3 .

4 .

c

a.

Note: Set t lement and e n t r y of 2 r d e r s is ~ e a l c w l t h lr!

Order 36 cof the Federa l Co1,rt Ftules.

l

AND : THE SECRETARY. DjEPS'nTPEiL'T OF

SOC1P.L SECUETT'J

iiespondent

This i's an applicatlon by Hug9 Rupbert Wilson ("the

applicant") for an extension of tlme wlthln whlch to mstltute

proceedings In thls Court by wzy of appeal from the declsion of

the Admmistratlve Appeals Trlbunal given on 3 December 1S84 afflrming a declslon of the Secretary to the Department of Soclal Security ("the respondent") to cancel the payment of invalid pension to the applicant. A notice of appeal was in fact filed m the Court on 4 July 1985 so that %hat is sought

is an extension of tlme up to and includlng that date.

2 .

G r e a t e r d i f f l c u l t g , h o w e v e r , arises I n r e l a t l o n t o t h e

perlo+. from 10 Aprll 1985 to 4 J u l y l 9 @ 5 . On t h e m a t e r i a l

S s f o r e me, I can o conc lude ly t ha t t he tact t h a t the

p r o c e e d m g s w e r e n o t i n R t i t u t e d e a r l i e r than 4 J u l y 1985 waz

a t t r i b u t a b l e s o l e l y t o delay on t h e p a r t of the a p p l i c a n t ' s

l e g a l a d v i s e r s I n s e t t l i n g t h e n o t l c e of appes i and a r ranqlnq

for It t o b e f i l e d . No d e t a i l s h a v e b e e n u i v e n t o e x p l a l n t h i s

de l ay a l though i t must be said tha t , so far as a p p e a r s , no

There are, however, f m 3 . c t G j r s whlch may be reqsrded a5

suiflclent to relieve r;he applicant of the con:eqkence: of tilat delay. They lnclde the clrcumnzance that as early as December

1384 the respcndent G , T ~ S lnformed of the possibility gf an

appeal and the fuctker clrcumstance tha; that notiilcafiun wa5 suppicmenced by a 1er;ter i?ated 22 Q r l l 1985 lnformlng the respondent tha: an 3ppeal was to be l o i q e t . The respondent was

thus always aware that active conslderation was being #:riven to

t'ne lnstitutlon of an appeal. I have a150 taken into accmnt that on at least two occasions the appllcant's solicitor was

informed that the respondent would not oppose an appllcatlon

f o r leave to file a notice of appeal out of tlme, an attitude

which the respondent maintained when the present appllcatlon

came on for hearhq. Another matter to be taken Into account

is that the present application may properly be determined upon

consideratlons vhich	affect only the immediate partles: see
Wedesweiller v .	(1983) 47 A.L.R. 528 at p.531.

not accurately or adequately ldentlfy the question- of law to

be ralsed on the appeal. idhat appear- to be necessary 1 s for

the applicant's legal advisers to analyse carefully the

fmdlngs made by the Trlbunal, to Identify the particular

respects m cdnch the Tribunal is alleged to have erred m law

and then to artlculste clearly and cnnclsely t h e questions of

law that the appllcant intend: to arque on Kqe hearing of the

appeal. I, therefore, dlrect that not later than 10 September

1985 the appllcant file and serve on the respondent a document

settmg out with preclsion the questions of law to be raised on

. .

the appea l . That daczument should . of ccurse, be lncludec! In

t h e appesl p p e r s t o be pr?pared pursua!?t t o Order 53, i k l e 16

of the Federal Codr t Rules.

I c e r t l f y that t h l s a n d

the preceding 4 pages a re

a t rue copy of the Reasons

f o r Judgment h e r e i n of the

Honocrable Mr J u s t l c e

Assoc ia t e

Dated: 30 August 1985