FEDERAL COURT OF AUSTRALIA

Ward v Repatriation Commission [2004] FCA 1163

PRACTICE AND PROCEDURE – application for leave to appeal – exercise of discretionary power – no utility in granting leave to appeal

Veterans’ Entitlements Act 1986 (Cth)

Federal Court of Australia Rules O 52 r 15(2)

WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 cited

GORDON M WARD v REPATRIATION COMMISSION

W178 OF 2004

LEE J

2 SEPTEMBER 2004

PERTH

THE COURT ORDERS THAT:

            The application for leave to appeal be dismissed.

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

REASONS FOR JUDGMENT

1                     This is an application under O 52 r 15(2) of the Rules of the Federal Court (“the Rules”) for leave to file and serve a notice of appeal from a judgment of a Judge of this Court pronounced on 22 June 2004. 

2                     Leave is necessary because the applicant failed to file a notice of appeal within 21 days thereafter as required by O 52 r 15(1)(a).

3                     The applicant appeared on his own behalf before his Honour and on this application.

4                     The applicant is a “veteran” under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) who, in the course of World War II, rendered “eligible war service”.  It is accepted that in the course of his life thereafter he suffered incapacity attributable to that war service.  The matter in which the judgment sought to be appealed from was pronounced involved a dispute between the applicant and the respondent as to the amount of a benefit the applicant was entitled to receive under the Act.

5                     Order 52 r 15(2) reads as follows:

“Notwithstanding anything in the preceding sub-rule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.”

6                     The applicant submitted a report by a medical practitioner who treated the applicant which stated that by reason of his medical condition the applicant had been unable to deal with the task of preparing a notice of appeal within the time allowed. 

7                     The period between the expiration of the time for filing a notice of appeal and the lodgment of this application for an extension of that period is not of great length and it is likely that leave to bring the appeal would be granted if the foregoing circumstances constituted the only issue to be considered.  (See: WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399at [8]).

8                     However, as stated in WAAD v MIMA (at [9]):

“[a]n extension of time within which to file an appeal will not be granted without a consideration of the putative appellant’s prospects of successfully prosecuting his appeal.”

That is not to say that the application for leave is to be conducted as a summary hearing of the appeal.  What is meant by such a statement is that the Court must have regard to the overriding principle that the interests of justice be served and a grant of leave should not be made if it is plain that the ensuing appeal would have no chance of success.  There is no injustice in refusing leave to bring an appeal that is doomed to fail.

9                     Unfortunately for the applicant, the proposed appeal in this matter would be such a proceeding.  In the reasons provided by his Honour it is stated that the issue the applicant sought to address before his Honour was neither relevant to, nor connected with, the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 9 May 2003 from which the applicant had brought the “appeal”. 

10                  The applicant sought to submit to his Honour that the Tribunal had erred in a decision made by the Tribunal on 14 March 1996. In that decision the Tribunal determined the date from which payment of a benefit to the applicant under the Act was to commence would be 14 August 1991.  The applicant did not “appeal” from that decision and has not sought leave from this Court to bring such an “appeal” out of time.

11                  His Honour stated that having regard to the fact that the applicant’s application for a pension under the Act was first made in 1986 on a ground eventually admitted by the respondent in 1991, the applicant’s sense of grievous was understandable.  However the date of commencement of the pension was not the question before the Tribunal in May 2003. 

12                  It is obvious that an appeal from his Honour’s judgment cannot succeed.  Therefore, the applicant has failed to show that there are “special reasons” why leave should be granted to bring such an appeal out of time.

13                  The application must be dismissed.  There has been no appearance by the respondent and there will be no order as to costs.

Associate:

Dated:              8 September  2004