FEDERAL COURT OF AUSTRALIA

Lever v Comcare [2007] FCA 576

Administrative Appeals Tribunal Act 1975 (Cth)

Federal Court of Australia Act 1976 (Cth) s 31A

Federal Court Rules Order 53

Lever v Comcare [2007] FCA 99

RONALD LEVER v COMCARE

NSD 2023 OF 2006

BUCHANAN J

2 APRIL 2007

SYDNEY

THE COURT ORDERS THAT:

(1)               The proceedings are dismissed under Order 53, rule 20;

(2)               The applicant is to pay the respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

BUCHANAN J:

1                     These proceedings were commenced by an application for an extension of time in which to file and serve a notice of appeal from a decision, dated 11 September 2006, of the Administrative Appeals Tribunal.  The application was filed on 24 October 2006.  Attached to the application was a draft notice of appeal.  Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) permits an appeal to this court from the Administrative Appeals Tribunal ‘on a question of law, from any decision of the Tribunal in that proceeding.’

2                     The requirement to satisfactorily identify a question of law is an important one.  Order 53 r 3(2)(b) specifies that a question of law to be raised on an appeal is to be set out in the notice of appeal.  In the draft notice of appeal, filed on 24 October 2006, the questions of law to be raised on the appeal are stated in the following way. 

‘1.        The application of Hart v Comcare [2005] FCAFC 16 (11 March 2005);

2.         The application of Comcare v Mooi (1996) 69 FCR 439;

3.         Such other questions of law as become apparent following receipt by the Applicant of the transcript of evidence.’

3                     The extension of time which was initially sought (in an affidavit, also filed on 24 October 2006, which accompanied the application for extension of time) was for a period of a further four weeks from 9 October 2006, that is:  until 6 November 2006. 

4                     When the matter came before me on 8 February 2007, the respondent opposed the application for an extension of time.  However, it appeared to me at that time to be appropriate to grant an extension of time notwithstanding the lack of clarity in the questions of law which were said to be raised by the appeal.  I took the view, on that occasion, that the period of delay in filing the application for extension of time was only small and that no real prejudice was occasioned to the respondent (see Lever v Comcare [2007] FCA 99).  I directed that the applicant file a notice of appeal, conforming to the requirements of Order 53 of the Federal Court Rules, by 4 pm on 1 March 2007, and I made further directions for the preparation of the matter for hearing. 

5                     No notice of appeal, as directed, was filed within the time specified.  No application for a further extension of time in which to appeal has been made.  No explanation has been given to the court for the failure to file the notice of appeal as directed or the absence of any further step by the applicant in the proceedings.  The applicant did not appear in the proceedings this morning.  The respondent has applied to strike out the proceedings.  It relies, principally, upon the provisions of s 31A of the Federal Court of Australia Act 1976 (Cth).

6                     Mr Dubé, who this morning appeared for the applicant, made some short submissions both in writing and orally.  He directed my attention to some subsidiary allegations of errors of law in the decision of the Administrative Appeals Tribunal, which were also contained in the draft notice of appeal and, by comparison with the content of the decision of the Administrative Appeals Tribunal, he submitted that there was no reasonable prospect that any such alleged errors could be sustained at a final hearing.  Accordingly, he submitted to me that the grounds for dismissing the matter under section 31A were made out. 

7                     I think there is a good deal of force in the submissions that were put to me, but in the circumstances which are presented by the procedural course the matter has taken I think it preferable to deal with the matter under Order 53, rule 20, which permits the court to dismiss an appeal for want to prosecution, where an applicant:

‘…has not done any act required to be done by or under these Rules, or otherwise has not prosecuted his appeal with due diligence…’

8                     Despite Mr Dubé’s submissions this morning, I am reluctant to attempt any assessment of the merits of the allegations in the draft notice of appeal, although I agree with the contention advanced when I dealt with the matter earlier that the questions of law stated by the appeal are, in the form in which they are stated, inadequate to satisfactorily engage the jurisdiction of the court.

9                     In my view, the applicant has had an adequate opportunity to prosecute his appeal.  He has not done that which the court directed him to do.  He has provided no explanation for his failures.  I am satisfied that the appropriate course, in the circumstances, is to dismiss the proceedings for want of prosecution.  It is appropriate that the applicant pay the respondent’s costs.

10                  The orders, which I make, are:

(1)    The proceedings are dismissed under Order 53, rule 20;

(2)    The applicant is to pay the respondent’s costs as agreed or taxed.

Associate:

Dated:         2 April 2007