FEDERAL COURT OF AUSTRALIA

Perry v Comcare [2006] FCA 481

PRACTICE AND PROCEDURE – leave to file and serve a notice of appeal out of time -   whether special reasons shown by solicitor’s oversight -  relevance of prospects of success

Statutes

Federal Court of Australia Act 1976 (Cth) s 24(1A)

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 124

Cases

Wolcott v Davies (1984) 4 FCR 124 Cited

ROBERT JAMES PERRY v COMCARE

QUD 101 OF 2006

KIEFEL J

BRISBANE

3 MAY 2006

THE COURT ORDERS THAT:

1.         The application for leave to file and serve an appeal from the decision of Greenwood J given on 2 February 2006 is refused. 

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 lodged a claim for compensation for a psychiatric injury which was attributed to an incident which occurred whilst he was a member of the Army Reserve Forces.  A determination was made by the Military Rehabilitation and Compensation Commission that liability should be accepted for the condition of schizophrenia.  That determination was subsequently revoked and the applicant applied for review by the Administrative Appeals Tribunal.  On 19 March 2004 the Tribunal determined that the applicant was entitled to compensation for schizophrenia and alcoholism pursuant to s 124 of the Safety, Rehabilitation and Compensation Act 1988 (Cth);  the incapacity was partial in that the applicant suffered an 80 per cent loss of capacity to work;  and the compensation related to the period from 3 April 1976 to 2 April 1978.  The issue of costs was not addressed in the reasons.  Another member of that Tribunal determined, on 27 April 2005, that the respondent should pay the applicant’s costs up to and including the time of receipt by the applicant’s solicitors of a letter of offer of settlement from the respondent on 21 August 2002. 

2                     The letter in question was forwarded by the respondent about seven months prior to the hearing.  It was entitled ‘Without Prejudice save as to Costs’.  It advised that the respondent was prepared to accept liability for the applicant’s claim and to pay compensation for the period from April 1976 to February 1979.  It went on to state that, should the offer not be accepted, the letter would be relied upon in relation to the question of costs if the matter proceeded to a hearing.  If the matter did proceed to a hearing and the applicant did not better the respondent’s offer, it advised that the respondent intended to:

‘1.        Oppose the applicant being awarded costs on and from the date of this letter;  and

2.         Apply to have any costs the applicant would otherwise be awarded up to the date of this letter reduced by the amount of costs our client incurs from the date of this letter.’

3                     The Tribunal, in its decision upon costs, considered that although the letter did not refer to the costs the applicant would receive in the event of acceptance of the offer of settlement, the applicant had a statutory right to costs.  The offer was clear in its terms and the applicant  had elected to a hearing despite the offer.

4                     The Tribunal’s decision was the subject of an appeal heard by Greenwood J [2006] FCA 33.  His Honour dismissed the appeal.  In his Honour’s view, whilst the letter did not amount to a ‘calderbank’ letter, that did not mean that the Tribunal was obliged to disregard it in the exercise of its discretion and order that the respondent pay the applicant’s costs for the whole of the proceeding.  That was a matter within its discretion. 

5                     The applicant seeks to appeal from his Honour’s decision.  An appeal was not however filed within the time limited by the rules and the applicant seeks leave to bring an appeal.  The judgment was delivered on 2 February 2006.  The applicant’s solicitor says that he forwarded a copy of it to counsel the following day with a request that counsel contact him to discuss an appeal.  Counsel did not however do so until 23 February 2006 because he had been absent from chambers.  There is no suggestion that the applicant’s solicitor made any enquiry as to counsel’s availability.  The only inference I can draw is that he did not note the time limited for an appeal and follow the matter up.  He does not say he took any other step other than delivery of the brief to counsel with the message I have outlined. 

6                     An application for Leave to Appeal was filed approximately one week outside the time limited for the rule.  The applicant’s solicitor says that he does not consider that the respondent is prejudiced by such a delay.

7                     Order 52 rule 15 fixes the time within which a notice of appeal must be filed and served.  Order 52 rule 15(2) provides that a Court or a Judge may give leave to file and serve a Notice of Appeal ‘for special reasons’.  The reference to ‘special reasons’ in this context connotes a ground which justifies a departure from the general rule, something which takes the case out of the ordinary.

8                     It does not appear to me that a solicitor’s lack of awareness of the time limit or a solicitor’s oversight in ensuring that it is observed can amount to a special reason in the sense mentioned.  The rule is not directed to such a circumstance, without more.  This was the view expressed by Muirhead J in Wolcott v Davies (1984) 4 FCR 124 at 128.  Nor does the respondent’s lack of prejudice by reason of the delay of itself provide special reasons.  The rule looks to something connected with the applicant, which might provide an excuse.  At most, the lack of prejudice might confirm the appropriateness of the exercise of a discretion. 

9                     The respondent did not argue that the applicant also required leave to appeal because it was from an order only with respect to costs (see s 24(1A) of the Federal Court of Australia Act 1976 (Cth).  Leave is rarely given on such an issue.

10                  The question of the applicant’s prospects of success on appeal are relevant to both requirements for leave.  The applicant clearly lacks any reasonable prospects.  There is no principle of law, which would deny the letter relevance to the exercise of the Tribunal’s discretion, as his Honour held.  The letter was clear in its meaning and the applicant and his solicitor would have understood its effect. 

11                  The applicant is not able to satisfy the requirement of O 52 r 15(2) that special reasons should be shown and leave to appeal should be granted for that reason and because there is no real prospect of overturning the order for costs. 

12                  There remains the question of the costs of this application.

13                  The usual order for costs would be that the applicant pays the respondent’s costs given that he sought the leave of the Court.  In the present case, the applicant did attempt at the outset to follow the procedure of a written case (see O 52 r 15A) no doubt in order to limit costs.  For a combination of reasons, the matter proceeded by way of written argument and an oral hearing.  Neither were extensive.  It had concerned me that the applicant was exposed to additional costs because the Court set the matter down for hearing without appreciating he was attempting to have the matter dealt with on the papers.  The respondent however points out that, whilst it was prepared to follow that course and provided its written case within the time limited by O 52 r 15A(3), the applicant did not.  It was subsequent to that that a date for hearing was provided.  The applicant did not provide submissions until the day before the hearing.  In these circumstances if there were any additional costs incurred they were largely brought about by the applicant not following the rules for the process he initiated.

14                  The application for leave to file and serve an appeal from the decision of Greenwood J given on 2 February 2006 is refused.  The applicant is to pay the respondent’s cost of the application. 

Associate:

Dated:              3 May 2006