FEDERAL COURT OF AUSTRALIA

Cooper v Comcare [2002] FCAFC 347

WORKERS COMPENSATION – Commonwealth employee – back injury – claimed entitlement to lump sum – back injury and impairment before 1988 Act – no entitlement under 1971 Act – decision of Administrative Appeals Tribunal – application to extend time for review of AAT decision – application dismissed  - application for leave to appeal and to extend time against dismissal by primary judge – relevant factors – appeal without merit – application dismissed.

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 24, s 27

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Vranic v Commissioner of Taxation [2002] FCA 146 cited

Deighton v Telstra Corporation Ltd, unreported, Full Court of the Federal Court, 17 October 1997 cited

Barrett v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129 cited

Weatherall v Satellite Receiving Systems (Aust) Pty Ltd (1999) 92 FCR 101 cited

Dai v Telstra Corporation Ltd (2000) 171 ALR 348 cited

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited

Comcare v Levett (1995) 60 FCR 14 cited

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 cited

JAMES COOPER v COMCARE

W196 OF 2002

FRENCH, CARR AND FINN JJ

13 NOVEMBER 2002

PERTH

THE COURT ORDERS THAT:

1.         The application for leave to appeal is dismissed.

2.         The applicant is to pay the respondent’s costs of the application including reserved costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1                     On 8 October 1999, the Administrative Appeals Tribunal (“the Tribunal”) decided that Comcare was not liable to pay lump sum compensation under s 24 and s 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) to the present applicant, James Cooper, in respect of a lower back injury he sustained in the course of his employment with the Commonwealth.

2                     Over two and a half years later Mr Cooper applied for an extension of time in which to file and serve a notice of appeal against the Tribunal’s decision.  Comcare in turn brought a motion under O 20 r 2(1) of the Federal Court Rules seeking dismissal of the application as frivolous.

3                     The primary judge acceded to Comcare’s motion and dismissed Mr Cooper’s application for an extension of time.  Mr Cooper now seeks leave to appeal from His Honour’s orders.

4                     It is well established that an appeal against a decision either granting or refusing an extension of time in which to appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) is interlocutory in character such that leave to appeal to this Court is required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth): Vranic v Commissioner of Taxation [2002] FCA 146; Deighton v Telstra Corporation Ltd, unreported, Full Court of the Federal Court, 17 October 1997; cf Barrett v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129 at 130.  It is equally well established that an order summarily dismissing proceedings on the ground that no reasonable cause of action has been disclosed is interlocutory: see Weatherall v Satellite Receiving Systems (Aust) Pty Ltd (1999) 92 FCR 101 (and cases cited there); Dai v Telstra Corporation Ltd (2000) 171 ALR 348 at 352.

5                     The considerations ordinarily applied in determining whether or not to grant leave are well accepted.  They are: (i) whether in all the circumstances the decision in question is attended by sufficient doubt as to warrant its being reconsidered by the Full Court; and (ii) whether substantial injustice would result if leave were refused supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

6                     Mr Cooper has represented himself in these proceedings as he did before the primary judge.  We are in consequence prepared to treat his appeal as if it were an application for leave and, furthermore, we extend the time for his making this application to the date of its hearing.  Because of Mr Cooper’s late unavailability to present oral argument the presiding judge, last week, directed that written submissions be filed and that the application would be decided on the papers. 

The Setting of the Application

7                     The decision of the Tribunal was premised upon a finding of fact made by it.  The finding was that the work-related injury to Mr Cooper resulted in his sustaining a permanent impairment prior to 1 December 1988.  It was on that date that the transitional provisions of the SRC Act were proclaimed.  Section 124(3)(b) of that Act disentitles a person from receiving a lump sum payment under s 24 of the Act if that person had no corresponding right under (inter alia) the Compensation (Commonwealth Government Employees) Act 1971 (Cth).  The latter Act, which was repealed by the SRC Act, applied to Mr Cooper at the time of his injury.

8                     It has been held by a Full Court of this Court that nowhere in the 1971 Act is there created an entitlement to compensation as a lump sum for a back injury (save in one circumstance of no present relevance): Comcare v Levett (1995) 60 FCR 14.  In consequence of its fact finding the Tribunal made its decision that Comcare was not liable to pay lump sum compensation to Mr Cooper.

9                     The principal ground upon which the primary judge based his decisions to dismiss the application for an extension of time to appeal against the Tribunal’s decision is that, if an extension of time were granted, the appeal (which challenged the date of his injury/permanent incapacity) would nonetheless be doomed to failure in light “of the rule in Levett’s case, brought into operation by the unchallengeable findings of fact of the Tribunal”: [21]; emphasis added.  The reference to “unchallengeable findings of fact” above related to the earlier conclusion of the primary judge that it was apparent from the evidence referred to by the Tribunal that there was evidence upon which it was entitled to reach the conclusion which it did.

10                  One of the considerations characteristically taken into account in determining whether or not to grant an extension of time is “the merits of the substantial application”: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349.  It obviously was with this in mind that His Honour emphasised the significance and consequence of the Tribunal’s fact findings.

The Present Application

11                  The applicant, who has been unable to attend the hearing of his application, has filed written submissions in support of it.  As best as one can ascertain from those submissions he seeks to challenge again, as he did before the primary judge, the Tribunal’s findings of fact in relation to the time of his injury/permanent incapacity.  To this end he alleges that the Tribunal disregarded the second medical report of a doctor, on both of whose reports the Tribunal in fact relied in reaching its conclusion.

12                  The respondent has submitted that the primary judge’s decision is demonstrably correct and that it does not warrant reconsideration by this Court.

13                  In reaching his decision the primary judge quite properly had regard to the substantial application Mr Cooper wished to raise.  His Honour clearly was correct, with respect, in concluding that to have granted the leave sought would have been futile as that substantial application would necessarily have failed in light of the Tribunal’s fact findings and the applicability of Levett’s case in consequence of those findings.  At best Mr Cooper’s appeal was against the findings so made.  The primary judge was again correct in concluding that those findings were open to the Tribunal on the evidence before it.

14                  The decision of the primary judge is unexceptionable.  It does not warrant reconsideration.  Having regard, first, to the Tribunal’s reasons and in particular to its fact findings and, secondly, both to His Honour’s consideration of what was Mr Cooper’s substantial application in the event that an extension was granted, and to his reasons for rejecting the extension, it would serve no useful purpose in granting leave to appeal in the circumstances.  The appeal itself, no less so than the original substantial application, would be doomed to failure.

15                  Accordingly, the application for leave to appeal should be dismissed with costs.

Associate:

Dated:              13 November 2002