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

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.

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 of what [her] duties with that or would be and was not caused of [sic] contributed to by a disease arising out of or in the course of [her] employment within the meaning as defined in the Safety, Rehabilitation and Compensation Act 1988.

3                     On 24 January 1996 under the Act a reviewable decision was  made affirming the determination of the respondent.  An application was made to review that determination and decision, the application being made to the Administrative Appeals Tribunal.  The Tribunal commenced the hearing on or about 24 March 1997.  On 25 September 1997 the Tribunal handed down its decision which was that “The reviewable decision under review is affirmed”.

4                     At that hearing the applicant appeared in person and was not represented.  On 20 October 1997 the applicant filed a notice of appeal from the decision of the Tribunal in this Court and in relation to the questions of law raised in the appeal she attached a list of what the applicant relied upon as being relevant questions of law.  In that document substantially all the applicant did was simply refer to particular sections of the Safety, Rehabilitation and Compensation Act identifying the subject matter of those sections. 

5                     In that notice of appeal under ‘orders sought’, the applicant, who prepared the notice of appeal herself without legal representation, stated that it was imperative that the Court re‑examine all the evidence up until 26 August 1997 and indicated a number of matters relating to the evidence which either was before the Tribunal or ought to have been before the Tribunal and in the grounds of appeal set out a number of matters which were critical of the approach taken by the Tribunal.

6                     On 31 October 1997 in that earlier proceeding, which had the court number VG 587 of 1997, the respondent Comcare filed a notice of motion to have the application dismissed on the grounds that there was no reasonable cause of action disclosed, relying upon the provisions of O 20 r  20(1)(a) of the Federal Court Rules.  On 4 December 1997 the applicant discontinued the proceeding by filing a notice of discontinuance in the Court signed by her which notice stated:

7                     The applicant discontinues the whole of the proceedings.  "I cannot possibly go through the proceeding in a Federal Court unrepresented, legally."

8                     It appears from the material before the Court that nothing happened then until 10 February 1999 when the applicant wrote a letter to the Prime Minister of Australia the Honourable John Howard, in which she set out in some considerable detail her complaints about the manner in which her application under the Act had been dealt with and she sought in substance a reopening of her case and a consideration of the manner in which the Tribunal had dealt with the review of the reviewable decision.

9                     Subsequently, on 7 May 1999 the applicant received a letter from the Minister for Employment and Workplace Relations and Small Business in relation to her letter of 10 February 1999 in which the minister indicated that the concerns about the Tribunal's consideration of the applicant's circumstances was a matter beyond his responsibility.  On or about 21 June 1999 the applicant was advised by Comcare that it had no power to extend the time filing a notice of appeal to this court.  On 30 August 1999 the applicant sent a letter to the Public Interest Law Clearing House setting out in some considerable detail the issues which she had with the Tribunal's decision and her concerns generally about the matter.

10                  On 28 September 1999 the applicant made an application in the present proceeding (VG 541 of 1999) in which she applied for an extension of time within which to file and serve the notice of appeal.  The grounds of the application were expressed to be in the form of the annexed affidavit.  There was filed on the same date a document purporting to be an affidavit.  The document does not appear to have been sworn before an appropriate officer by the applicant but the respondent made no point about that and having heard from the applicant at the bar table I am prepared to deal with the matters referred to in that affidavit.

11                  In the affidavit the applicant identified a number of the documents to which I have already referred and she indicated in that affidavit and again before me again today that she has been unable to obtain legal representation.  Although the discretion committed to me under s 44(2A) of the Administrative Appeals Tribunal Act is in its terms unfettered, there have been a number of decisions which set out the matters and principles which a court dealing with an application such as this should take into account in determining whether or not an extension of time should be granted.  In particular, Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 to 349 set out a number of matters which were relevant in relation to seeking an extension of time pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) s11(1)(c).

12                  Subsequent decisions have held that those principles are applicable to applications under s 44(2A) of the Administrative Appeals Tribunal Act (see Secretary Department of Social Security v Van Den Boogaart (1995) 37 ALD 619 at 620).  More recently, Finn J, in Peczalski v Comcare [1999] FCA 366, considered an application similar to the one before me today and set out the principles which ought to be applied, and I can do no better than to refer to what his Honour said at [19]:

“The principles to be applied in such an application are well known.  I need merely state the following and in proposition form.

1.      To comply with the provisions of s 44 of the AAT Act Mr Peczalski had to file a notice of appeal from the Tribunal's decision within 28 days of being furnished with a copy of the decision and this irrespective of whether he then obtained reasons for decision: see Repatriation Commission v Tuite (1992) 37 FCR 571.  This time limit expresses the prima facie rule that proceedings commenced outside it will not be entertained.

2.      The discretion to extend time to institute an appeal is not expressly confined by specified criteria.  Nonetheless the court has on a number of occasions indicated that there is a range of factors, of varying actual importance in a given instance, of which account appropriately can be taken to guide the exercise of discretion to extend time.  They have been conveniently listed by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348, 349 and have been held to be applicable to applications under s 44 of the AAT Act see Secretary Department of Social Security v Van Den Boogaart (1995) 37 ALD 619 at 620.

3.      The particular factors that are of immediate significance are (a) the explanation given of the delay; (b) the actions of the applicant in contesting the decision otherwise than by appeal; (c) prejudice to the respondent; and (d) the merits of the application.  I would add that in relation to factor (a) - the explanation given of the delay - the Full Court of this court in Comcare v A'Hearn (1993) 45 FCR 441 at 444, noted that while there is no rule that an acceptable explanation is an essential precondition, "it is to be expected that such an explanation will normally be given".

13                  I turn firstly to the explanation for the delay.  This matter is rather unusual because what happened in fact was that the applicant filed a notice of appeal within time but subsequently discontinued on 4 October 1997.  In those circumstances it seems to me that the relevant period of time or delay in respect of which an explanation should be given is not so much the delay from 28 days after the decision to the present date but rather the delay between 4 December 1997 to 28 September 1999, the date upon which the application for leave was filed.

14                  The explanation which the applicant gives is not so much an explanation for the delay but what I would call a plea to have the merits of her complaint dealt with.  The reason why the notice of discontinuance was filed on 4 December, as I understand it, and as appears from the face of the document, was that the applicant felt unable to continue with the proceeding while she did not have the benefit of legal representation.  That situation has continued to the present day.  The applicant has put before the court material which demonstrates strenuous attempts on her part to obtain legal representation but she has regrettably been unable to do so.  It seems therefore that there has been no explanation given for the delay other than an explanation which bears in some way upon her inability to obtain legal representation and an inability to present her case before the Court in a manner which she regards as appropriate.

15                  But that reasoning was the same reasoning as compelled the applicant to discontinue the proceeding on 4 December 1997 and that position has not changed.  Today - this morning before the Court - the applicant indicated that she still had not obtained legal representation and it would appear from the material which she has filed before the Court, the attempts she has made to obtain legal representation, the persons and institutions that she has approached, that she presently has no reasonable prospect of doing so.  In those circumstances, I am not satisfied that the reasons advanced before the court to explain the delay between 4 December 1997 and 28 September 1999 are an adequate explanation for the delay.

16                  If the reason for the delay is that the applicant still does not have legal representation that is the position which obtained from December 1997.  However, I should go to the next step or the next level of analysis and, consistently with the decisions to which I have already referred, I assume, notwithstanding what I have found, that an adequate explanation has been given.  It is then appropriate that I consider the merits of the application, that is the merits of the application to review the decision of the Tribunal. 

17                  The role of the Court on an application to review a decision of the Tribunal under s 44 of the Administrative Appeals Tribunal Act is limited.  It is not open to the Court to have a rehearing of the matter before the Tribunal and it is not open to the Court, except in very limited circumstances, to undertake any analysis of the factual matters before the Tribunal.  The Court is limited to considering questions of law.  I can do no better than refer to the judgment of Brennan J in Waterford v Commonwealth (1987) 163 CLR 54 where at 77 his Honour said:

“A finding by the AAT on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law.  Section 44 of the AAT Act confers on a party to a proceeding before the AAT a right of appeal to the Federal Court of Australia "from any decision of the tribunal in that proceeding" but only "on a question of law".  The error of law which an appellant must rely on to succeed must arise on facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to make.  There is no error of law simply in making a wrong finding of fact.

18                  In her application before the Court today the applicant has in effect referred back to and incorporated and relied upon the grounds upon which she wishes to appeal which were the same grounds as before the Court in her earlier application filed on 20 October 1997.  As I have observed earlier, a notice of motion had been filed to have the application dismissed on the grounds that no reasonable cause of action was disclosed.  That notice of motion was not proceeded with because it was overtaken by the notice of discontinuance. 

19                  I have examined very carefully the material filed by the applicant and I am unable to discern either in the material she filed in the previous proceeding or on this present application any matters which can properly be described as questions of law.  Listing relevant sections or provisions of the Safety, Rehabilitation and Compensation Act does not of itself raise a question of law.  What has to be raised is in effect a question of law identified as a question of law which arises out of the manner in which the Tribunal approached its task.  The applicant has been unable to identify any question of law as such.  In the course of her submissions before me this morning the applicant sought to say - and indeed said - that Comcare had disregarded an earlier decision and that the Court should reopen the case because there were discrepancies in relation to medical records and employment records.

20                  Consistently with the observations of Brennan J in Waterford v Commonwealth (supra), the Court is not able to undertake and should not undertake such a task.  I am satisfied that on the material before me that when taking the merits of the application into account, I am not satisfied that the merits are there and I am not satisfied that there are in fact any questions of law raised on the appeal.  I am conscious of the fact that the applicant is not legally represented and I have sought to try and distil out of the considerable material she has filed what I could consider is appropriate as a question of law raised by the applicant.  I have been unable to do so.

21                  Essentially what the applicant is complaining about is the findings of the Tribunal, the manner in which it approached the evidence and also matters which she, the applicant, claims were matters not either properly considered or considered at all by the Tribunal or not made available to it.  But those are not matters which raise questions of law consistently with the authorities to which I have referred.  The application of the applicant will be dismissed.

22                  The formal order of the court will be that:

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

(2)        The applicant pay the respondent's costs of the application.

Associate:

Dated: