Federal Court of Australia

Ascic v Comcare [2022] FCA 1245

ORDERS

THE COURT ORDERS THAT:

1.    Leave to rely on the minute of proposed amended notice of appeal filed on 19 April 2022 is refused.

2.    The appeal is dismissed pursuant to r 36.74(1)(b) of the Federal Court Rules 2011 (Cth).

3.    The appellant must pay the respondent's costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JACKSON J:

Background

1    Mr Ascic appeals from a first-instance judgment of this Court given under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The primary judgment determined that there was no legal error in a decision of the Administrative Appeals Tribunal that no permanent impairment compensation is payable to Mr Ascic under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (1988 Act). On behalf of the Chief Justice of the Court, the matter has been referred to me for case management of the appeal and hearing and determination of an objection to competency.

2    Mr Ascic was previously employed by the Australian Federal Police (AFP) (known as the Commonwealth Police when his employment first commenced). Multiple claims for compensation have arisen out of an injury in that role. The history of those claims is set out in the primary judgment. The Tribunal decision that was the subject of the primary judgment rejected what it described as Mr Ascic's claim for compensation for permanent impairment under s 24, s 25 and s 124 of the 1988 Act.

3    These reasons determine an interlocutory application by the respondent (Comcare) which essentially seeks dismissal of the appeal as incompetent. Comcare served a notice of objection to competency that was put on two bases: that Mr Ascic's notice of appeal does not state any alleged errors of law by the primary judge, meaning it does not comply with r 36.01(2)(c) of the Federal Court Rules 2011 (Cth); and that the notice of appeal seeks orders beyond the powers of the Court on an appeal under s 24 and s 28(1) of the Federal Court of Australia Act 1976 (Cth). Comcare sought that the question of the competency of the appeal be heard and determined before the hearing of the appeal and Mr Ascic did not object to that course. The interlocutory application seeks the summary dismissal of the appeal on the first of the bases put in the notice. In the alternative, Comcare's interlocutory application seeks security for its costs of the appeal.

4    Both the objection to competency and interlocutory application were listed for a hearing that took place on 20 September 2022. The delay in that listing was the result of an extension of time requested by Mr Ascic due to health and personal difficulties, and consented to by Comcare.

5    Mr Ascic is self-represented. He seeks leave to amend his notice of appeal in the terms of a document titled 'Amended Notice of Appeal' that he filed on 19 April 2022. He said at the hearing of the interlocutory application that he thought he had leave to file an amended notice of appeal, but in fact the order required him to file any minute of proposed amended notice of appeal by a certain date. Comcare opposes leave to amend in terms of the minute.

6    Mr Ascic seeks to articulate wide ranging and no doubt genuinely felt grievances against Comcare and the Tribunal based on what he believes to be a perverse interpretation of the 1988 Act and its predecessor, the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (1971 Act). But the complaints made in the notice of appeal as filed bear no relationship to the primary judgment, and do not invoke the appellate jurisdiction of this Court to correct any error in that judgment. The minute of proposed amended notice of appeal is largely the same, and in any event does not articulate any arguable contention making it appropriate to give leave to amend. There is no basis to think that the position will change if Mr Ascic is given a further opportunity to amend his grounds of appeal. Therefore the application for dismissal of the appeal as incompetent will be allowed.

The primary judgment

7    In order to assess the application for dismissal it is necessary to give a brief summary of the primary judgment:

(1)    The primary judge set out the background to the matter. It is accepted by Comcare that Mr Ascic suffers from depression and acute paranoid reaction to perceived stress in employment stemming from an incident on 11 December 1987, when he worked for the Commonwealth Police. He did not return to work after that date. He retired as totally incapable of work on 1 September 1988.

(2)    The Tribunal decision that was under appeal was the result of a claim for compensation for permanent impairment which Mr Ascic made in 2016. The primary judge summarised the claim as put. According to medical evidence that accompanied it, it was based on depression and acute paranoid reaction. That claim was rejected by Comcare and went through internal review before proceeding to the Tribunal, which affirmed the decision to reject the claim.

(3)    Mr Ascic appealed to this Court under s 44 of the Administrative Appeals Tribunal Act. That right of appeal is limited to questions of law.

(4)    The primary judge summarised the relevant legislation. The 1988 Act provides for compensation for injuries suffered by employees if they result in death, incapacity for work, or impairment: s 14. There are provisions about compensation for injuries resulting in permanent impairment (s 24), including compensation for non-economic loss from permanent impairment (s 27). Her Honour set out part of s 124 of the 1988 Act, as it is a transitional provision that applies the 1988 Act to injuries suffered before the day on which the Act commenced, 1 December 1988.

(5)    The primary judge said:

[37]    A line of cases has now established the principles to be applied with respect to pre-1988 injuries and permanent impairment, and in particular as to determining when an impairment becomes permanent, the effect of fluctuating impairments, the deterioration of an impairment and when a fresh permanent impairment may be said to arise.

[38]    In summary, and relevant to Mr Ascic's claim, it is clear that s 124(3) has the effect that if a person's impairment became permanent before 1 December 1988, the person is not entitled to receive compensation for that impairment under the 1988 Act if they were not entitled to receive lump sum compensation for it under the 1971 Act.

Her Honour then went on to review some of the key authorities.

(6)    The primary judge also referred more briefly to the 1971 Act. This contains sections providing for compensation for personal injuries and specifically for the amount of compensation payable for loss of various parts of the body or bodily functions. There is no provision on the face of the 1971 Act for psychological injuries.

(7)    The primary judge summarised the Tribunal's decision. In broad terms, the Tribunal determined that there was no provision for a lump sum payment for psychological injuries in the 1971 Act, and that Mr Ascic's injury led to permanent impairment before the commencement of the 1988 Act, so there was no entitlement to compensation under the 1971 Act that became payable under the transitional provisions of the 1988 Act. The Tribunal also determined that there had been no new impairment suffered on or after 1 December 1988 that might engage the provisions of the 1988 Act.

(8)    The primary judge distilled two questions of law from Mr Ascic's notice of appeal and partly amended notice of appeal before her (bolding in original):

(1)    whether the Tribunal erred in construing s 27 of the 1971 Act by not concluding that it, in isolation, can be relied upon to establish an entitlement to permanent impairment compensation (First Question); and

(2)    whether there was any evidence to support the Tribunal's finding that the impairment became permanent before 1 December 1988 (Second Question).

(9)    The primary judge considered both questions and answered them in the negative: in the case of the First Question, as an issue of statutory construction; in the case of the Second Question, because her Honour found that there was a sound evidentiary basis for the conclusion the Tribunal reached, so that it could not be said that it committed an error of law by making a finding for which there was no evidence.

(10)    Her Honour also considered and dismissed a number of other matters Mr Ascic raised in submissions, namely:

(a)    that s 124(1A) of the 1988 Act gave him a right to compensation;

(b)    that his claim was not, in fact, a claim for permanent impairment but was a claim for compensation for personal injury under s 27 of the 1971 Act;

(c)    whether the Tribunal had properly assessed the two 'pathways which may have led to compensation for permanent impairment being payable to Mr Ascic', namely impairment that became permanent after 1 December 1988 or a new impairment after that date;

(d)    whether s 128 of the 1988 Act operated in a broad way to make any injury that took place under the 1971 Act deemed to be an injury under the 1988 Act; and

(e)    the correctness of a number of Full Court decisions about the 1988 Act.

(11)    The primary judge dismissed the remainder of Mr Ascic's application for leave to amend the notice of appeal and also dismissed applications for leave to adduce new evidence.

The grounds in the notice of appeal

8    Against that background it is necessary to describe the 'grounds of appeal' in Mr Ascic's notice of appeal filed 10 January 2022. It is necessary because the nub of Comcare's application to dismiss the appeal is that the grounds do not identify any alleged error on the part of the primary judge in a comprehensible way.

9    Mr Ascic being self-represented, it is to be expected that his grounds of appeal will not be drafted with the same clarity as they might be by a lawyer, and it is indeed difficult to follow them. They are not presented in the form of brief propositions about why it is said the primary judge erred, but are more in the nature of wide ranging discussion and submissions. It must also be said, with respect, that many sentences and passages are difficult to understand at any level.

10    The notice of appeal is divided into two 'grounds of appeal'. Ground of appeal 1 is a general claim seeking the application of a 'fresh untainted mind' to Mr Ascic's claim and does not say much other than to imply that the primary judge was 'guided by the perpetuated versions of the legislation and fabrications of Comcare and the Tribunals'. Ground 2 is about two pages long. It says that her Honour's decision 'clearly summarises the effects of the continuing repugnancies and inconsistencies, also observed to be in the legislation by the previous Courts'. It quotes [37] of the primary judgment, set out above. It says that the principles to which her Honour referred 'needed to be applied, only because of the perceived shortcomings, inconsistencies and repugnancies of the legislation' (emphasis in original). But it is not clear from these paragraphs how Mr Ascic says the legislation should be interpreted.

11    Ground 2 then goes on to speculate about systemic reasons for the asserted approach of the courts to the legislation, and criticises the conduct of Comcare and the Tribunal as perverting and subverting 'the judicial process'. It makes sweeping allegations of misconduct. A representative excerpt is:

In every case since Blackman [Blackman v Australian Telecommunications Corporation (1990) 12 AAR 11], our Courts and Justices have been compelled to adjudicate or determine on an illegal process; imposed on every claimant, Court and Justice by the collusion of Comcare, Comcare Lawyers, Commonwealth Employers and the Administrative Appeals Tribunals. By definition and the legislation, a claim is a request or demand of a claimant to be provided with something that the claimant is entitled to.

No denial litigation is possible and Comcare are required to correctly provide that entitlement.

The concern here is not only what has been done to our Courts, Justices and the principles of justice and due process; but what has also been done to all of our injured employees; which will continue unless this industrial scale criminal enterprise is disbanded and the legislation is restored to what it is and what it should be, beneficial compensation legislation.

12    The notice of appeal then seeks orders that include the provision of a copy of a determination Comcare is said to have made about Mr Ascic's case in 1988, that Comcare withdraw 'their false accusation of the Government repealing or removing the Common Law right to damages under both the 1971 and the 1988 Acts', that Comcare acknowledge the entitlements of 'every victim since the Blackman case', and payment of compensation of at least $3 million as well as exemplary damages in a similar amount.

The minute of proposed amended notice of appeal

13    Comcare filed its interlocutory application on 18 March 2022. A case management hearing was held on 23 March 2022. It was explained to Mr Ascic that Comcare was saying that the notice of appeal should be struck out because it did not say what the primary judge 'got wrong' and that he needed to be specific about the mistakes her Honour is said to have made. Mr Ascic asked whether he could file an amended notice of appeal and, as has been said, he was given leave to file any minute of proposed amended notice of appeal within a certain time, which was about a month after the case management hearing. As has been said, Mr Ascic filed such a document on 19 April 2022.

14    Grounds 1-2 in the minute of proposed amended notice of appeal repeat similar allegations to those made in the first part of ground 2 in the notice of appeal. That is, they refer to 'observed repugnancies and inequities within this compensation legislation' and speculate as to the cause of that asserted approach to the legislation.

15    In grounds 3-6 in the minute of proposed amended notice of appeal, Mr Ascic appears to allege that the compensation legislation does not extinguish common law rights to damages. However there is no allegation that the primary judge erred in relation to that, let alone any indication as to how. Since the primary judgment dealt with a Tribunal decision concerning an application under the 1988 Act for permanent impairment, there is no apparent connection between the judgment and the contentions made in these grounds.

16    In grounds 7-13 of the minute of proposed amended notice of appeal, Mr Ascic makes similar allegations as in the second part of ground 2 in the notice of appeal. He appears to claim that the AFP and Comcare, with their lawyers and 'their associates within the Administrative Appeals Tribunal' have engaged in 'a very complex and deceptive strategy of diversion and control of the course or path of reasoning and justice'. The grounds go on to make very serious allegations of misconduct by personnel of the AFP, Comcare and the Tribunal.

17    Once again, none of this identifies any error that the primary judge is said to have made. The minute does refer (at grounds 9 and 10) to the asserted line of cases since Blackman v Australian Telecommunications Corporation (1990) 12 AAR 11, and her Honour's summary of the 'consequences of these alternate cases' including at [37] of the primary judgment, which is reproduced above. But it does not say that the summary is erroneous and does not say how her Honour made any error of law.

18    The final ground, ground 14, says:

Her Honour, in the Court Below, like every court since Blackman, erred in accepting the Comcare and Tribunal Member's path of reasoning on the relevant laws and by that reached the same wrong conclusions on the state of the law. They all also failed to understand that all of these cases are illegal fabrications that should not ever have taken place.

I do hope that this is the case that the Courts have been awaiting since Blackman.

19    The orders sought in the minute of proposed amended notice of appeal add some further information about specific kinds of compensation Mr Ascic seeks, and increase the amounts claimed compared to those in the notice of appeal as filed.

Mr Ascic's submissions

20    Mr Ascic's written submissions, which were ordered to be filed for the purposes of the interlocutory issues, focus solely on the substance of his appeal. While this can be understood as seeking to refute a submission made by Comcare that the appeal is weak, as relevant to security for costs, the submissions do not address Comcare's arguments that the grounds of appeal do not comply with r 36.01(2)(c) and that Mr Ascic seeks orders not available on an appeal.

21    The written submissions allege at a high level that there is illegality and error affecting each of the line of cases establishing how to interpret the 1971 Act and the 1988 Act. In other words, they allude to similar matters to the notice of appeal and minute of proposed amended notice of appeal. They also allege, again at a high level, and again in similar terms to the proposed amended notice of appeal, that the legislation does not extinguish common law rights to compensation. They also flesh out somewhat the correct interpretation of the legislative scheme, according to Mr Ascic. He says that this requires consideration of a claim to be confined to only specific matters. But the submissions do not identify any error by the primary judge in that regard.

22    The written submissions then appear to allege that the original Comcare process was flawed or fraudulent in particular ways. They allege that fraudulence on the part of Comcare has influenced the line of cases interpreting the 1971 Act and the 1988 Act. They largely reiterate the allegations made in the notice of appeal and the proposed amended notice of appeal in that regard.

23    Mr Ascic's oral submissions at the interlocutory hearing were again not directed to the competency of the appeal as such, that is, they did not seek to identify where his notice of appeal or proposed amended notice of appeal identify appealable error on the part of the primary judge. Rather, Mr Ascic made wide ranging submissions going to what he perceives as the merits of his claims for compensation, traversing several major themes. He submitted that his entitlement to compensation was incorrectly determined on the basis of the legislative provisions as to permanent impairment compensation. Mr Ascic said that he is not eligible for permanent impairment compensation and should instead be allowed to make a claim for common law damages. He seemed to suggest that his injury does not fall within the meaning of a permanent impairment.

24    Mr Ascic also submitted that the 'legitimacy of his entitlement' to compensation is not in fact justiciable. He submitted that Comcare is responsible for the administration of the legislative scheme and cannot require claimants to do the work of establishing their entitlements to compensation. His argument seemed to be to the effect that once an injury is established, Comcare is required to provide compensation; and the limit of the Court's authority is to consider whether Comcare has done what it is required to do under the 1988 Act. Mr Ascic pointed to Commonwealth v Ford (1986) 9 ALD 433, but it is not clear on what basis he said it supported his arguments.

25    Mr Ascic also expanded on this by saying that the definition of 'determination' in s 60 of the 1988 Act does not include s 124 of that Act, which he said means that no determination needed to be made with respect to his entitlement. He said that the written determination made regarding his claim was only made after he sought review in the Tribunal. He also claimed that there had been irregularities in the authority of the person by whom the determination was made, including that it was, he said, made by a 'senior review officer' rather than a delegate. At points his submissions on this rose to allegations of fraud. He also made claims that Comcare and their legal representatives made deliberate decisions to force claimants to try to vindicate their claims through legal processes, for the purposes of financial gain.

26    When I asked Mr Ascic to point to error in the primary decision, he said, in effect, that his notice of appeal alleges that the primary judge erred by failing to find that the legitimacy of his entitlement was non-justiciable. However, earlier during his submissions he appeared to concede that the primary judgment correctly summarised and applied past authorities interpreting the legislative scheme. The crux of his arguments seemed to be that he submitted that those authorities were incorrectly decided.

Principles in relation to objection to competency of appeal

Relevant rules of Court

27    Rule 36.01(2) of the Federal Court Rules is as follows:

The notice of appeal must state:

(a)    whether the whole judgment or all of the orders, or only part of the judgment or some of the orders, are appealed from; and

(b)    if only part of the judgment, or some of the orders, is appealed from - the part of the judgment or the particular orders appealed from; and

(c)    briefly but specifically, the grounds relied on in support of the appeal; and

(d)    the judgment or orders the appellant wants instead of the judgment or orders appealed from.

28    Also relevant is r 36.74(1), which states:

A respondent may apply to the Court for an order that the appeal be dismissed for the failure by an appellant to do any of the following:

(a)    comply with a direction of the Court;

(b)    comply with these Rules;

(c)    attend a hearing relating to the appeal;

(d)    prosecute the appeal.

The power of a single judge to dismiss an appeal

29    After reserving judgment and prior to delivery of judgment, I sought written submissions on the power of a single judge of the Court exercising appellate jurisdiction to determine a notice of objection to the competency of an appeal or an application for dismissal of an appeal due to a failure to comply with a rule of court. Submissions were received from both parties. Mr Ascic's submissions, however, simply repeated broad contentions that he made in previous submissions, as summarised above, and did not address the issue of the Court's power.

30    I have concluded that a single judge of the Court does have power to dismiss an appeal as incompetent. The power arises under s 25(2B)(aa) of the Federal Court of Australia Act, which authorises a single judge or a Full Court exercising the appellate jurisdiction of the Court to 'give summary judgment'. In Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773 at [4]-[5] Mansfield J held that an application for an order that an appeal be dismissed as incompetent under O 52 r 18 of the Federal Court Rules 1979 (Cth) was essentially an application under s 25(2B)(aa), and within the jurisdiction of a single judge. Like this case, the primary decision in Zambini was a decision to dismiss an appeal from the Tribunal on a question of law. The position is the same under the current Federal Court Rules: see e.g. Ali v Chandler Macleod Group Ltd [2016] FCA 1234 (Siopis J).

31    In form, Comcare's interlocutory application invokes the Court's power under r 36.74(1)(b) to dismiss Mr Ascic's appeal for failure to comply with the rules, specifically r 36.01(2)(c). In substance, the asserted reason for the failure to comply, and the reason why non-compliance with the rule is said to justify dismissal of the appeal, is that the notice states no grounds of appeal. In Zambini, while the application made by the Secretary was under a different rule, the underlying basis was similarly that Mr Zambini had not specified proper grounds of appeal, nor identified any question of law or fact upon which the Full Court might reverse the first instance decision. In effect, Comcare's interlocutory application in this case invokes the power of the Court under s 25(2B)(aa) of the Federal Court of Australia Act on the same basis, by seeking dismissal of the appeal for failure to identify errors on the part of the primary judge.

32    In Dauguet v Centrelink [2015] FCA 1212 at [74]-[76], Murphy J observed obiter that s 25(2B)(ab) of the Federal Court of Australia Act permits a single judge of the Court exercising appellate jurisdiction to hear and decide an objection to the competency of an appeal. Section 25(2B)(ab) authorises a single judge (or a Full Court) to 'make an interlocutory order pending, or after, the determination of an appeal to the Court'. However given my view about s 25(2B)(aa) based on the authority of Zambini, it is not necessary to proceed on the basis of s 25(2B)(ab).

The need for grounds of appeal that identify error

33    It is fundamental to the Court's jurisdiction to hear appeals under s 24 of the Federal Court of Australia Act that it is a jurisdiction for the correction of error: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [21]-[22] (Allsop J as he then was, Drummond and Mansfield JJ agreeing). The requirement in r 36.01(2)(c) for a notice of appeal to state, briefly but specifically, the grounds relied on in support of the appeal is therefore not a mere matter of form, although it must always be borne in mind that the rules are the servant and not the master of the administration of justice: Giddings v Australian Information Commissioner [2017] FCAFC 225 at [8] (Collier, Flick and Charlesworth JJ). In that decision, the Court said (at [9], italics in original):

The objective sought to be achieved by the rule of present relevance, namely r 36.01(2)(c), is self-evident. That Rule in particular serves to direct the attention of the Court and the Respondent to the appeal to alleged appellable errors said to have been committed by the primary Judge and to focus upon the issues sought to be pursued on appeal. The present Grounds of Appeal provide no real insight into the errors said to have been committed by the primary Judge and seem more directed to impermissibly seeking on appeal to re-litigate the issues otherwise canvassed and resolved at first instance.

34    In support of the proposition that the notice of appeal should be dismissed, Comcare relied principally on cases in the migration sphere, including SZTOG v Minister for Immigration and Border Protection [2018] FCA 112 and CJR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1599. In SZTOG at [28], Flick J said (italics in original):

It is difficult to envisage a requirement more fundamental to the proper administration of justice when resolving an appeal than the requirement to specify the Ground or Grounds of Appeal. Those Grounds form the very 'basis upon which the appellant will contend that the judgment, or a part of the judgment, should be set aside or varied' and should 'provide a sensible framework for … submissions': Commonwealth of Australia v Evans [2004] FCA 654 at [35], (2004) 81 ALD 402 at 411 to 412 per Branson J citing Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [4] to [5], (2002) 234 FCR 549 at 551 per Branson J.

35    In SZTOG at [30] Flick J said:

In the absence of the specification of Grounds of Appeal which focus the attention of this Court upon perceived appellable error committed by a primary judge, a Notice of Appeal should normally be struck out. Although this Court may in some circumstances attempt to redraft or construe otherwise ill drafted Grounds of Appeal in an effort to identify appellable error, it is no part of the function of this Court to review the reasons for decision of a primary judge, draft what may be arguable Grounds of Appeal and then proceed to resolve those Grounds. Even judicial attempts to revise ill-drafted Grounds of Appeal run the very real risk of prejudicing the impartial administration of justice: cf. Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCAFC 61 at [30] per North, Flick and Jagot JJ. For the Court to itself draft its own Grounds of Appeal and then resolve those Grounds is, with respect, a step too far.

36    Flick J held in the case before him that in the absence of the notice of appeal setting forth any grounds of appeal, and in the absence of grounds of appeal being identified, the appeal was to be dismissed.

37    In CJR19 at [15]-[16], Logan J said:

Rule 36.01(2)(c) of the Federal Court Rules 2011 (Cth) requires that grounds of appeal be stated briefly, but specifically. There is authority that, if a notice of appeal is incomprehensible or entirely unrelated to the issues dealt with in the judgment under appeal, an appeal may be incompetent: see Zegarac v Dellios [2007] FCAFC 58 and SQMB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 165.

The question of comprehensibility is always one of substance, not form. No special or different rule of court is applicable on this subject to litigants in person, see SZJJC v Minister for Immigration & Citizenship [2008] FCA 614. …

Logan J also dismissed that appeal as incompetent.

38    While the principles articulated in SZTOG and CJR19 are, with respect, undoubtedly correct, care must be taken in drawing analogies between the outcome in those cases and the outcome in this one. In each of those cases there were no grounds of appeal at all: see SZTOG at [4], [18]; and CJR19 at [6]. It is easy to see why dismissal would follow. Here, Mr Ascic has made attempts to articulate his complaints in the notice of appeal and minute of proposed amended notice of appeal. What is problematic about them is that it is difficult to see how they identify any error in the primary judgment.

Where grounds are incomprehensible or unrelated to the primary judgment

39    Zegarac v Dellios [2007] FCAFC 58 (cited in CJR19) provides guidance more specific to those circumstances than SZTOG or CJR19. In Zegarac at [7] North J (Weinberg and Jessup JJ agreeing) said of the predecessor rule to r 36.01(2)(c):

In my view, it does not follow that a failure to comply with Order 52 Rule 13(2) renders an appeal incompetent. If the notice is incomprehensible or entirely unrelated to the issues dealt with in the judgment, an appeal may be incompetent. Examples relied upon by Mr Nixon are indeed cases of incomprehensibility: Lindsey v Philip Morris Limited [2004] FCAFC 40; Kendrick-Smith v Australian Competition & Consumer Commission [2003] FCAFC 155; Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773. However, in this case the notice of appeal, while prolix and not in compliance with Order 52 Rule 13(2), is not incomprehensible. It is clear from the document as a whole that Ms Zegarac contends that his Honour erred in holding that she had not established that the judgment in the Magistrates Court was obtained by fraud. Thus, the relief sought in paragraph 1 of the motion should be refused.

40    Jessup J added (at [11]-[12]):

I also agree, subject only to a brief comment which I wish to make about O 52 r 18 of the Federal Court Rules. In my view, an appeal is incompetent if it is brought in circumstances which 'the law simply does not allow to happen': McKinnon v Commonwealth Bank of Australia [2006] FCAFC 10 at [6].

There may be cases in which the sheer incomprehensibility of a notice of appeal justifies the conclusion that the appeal is incompetent within the terms of r 18, but I would regard such cases as being those of the class of which Lindsey v Philip Morris Ltd [2004] FCAFC 40 is an obvious example. I think that the court ought to be particularly cautious before it uses r 18 to deal with a Notice of Appeal which is comprehensible, albeit prolix, and unlikely to be regarded as complying with O 52 r 13(2)(b).

41    In Singh v Owners Strata Plan No 11723 (No 3) [2012] FCA 1121; (2012) 207 FCR 390 at [29], Griffiths J applied the approach in Zegarac to the position under the 2011 Federal Court Rules. At [30]-[31] his Honour went on to say:

Such an approach recognises that, while mere non-compliance with r 36.01 is insufficient to render an appeal incompetent, the position may be different if the notice of appeal is also incomprehensible, as is illustrated by the examples of incomprehensibility cited by North J in the passage from Zegarac set out in [25] above.

In determining whether one or more grounds of appeal are incomprehensible, I consider that it is appropriate to approach the task as one of determining whether the notice of appeal, as a matter of substance, specifies appellable errors. If it does not [sic does], as Flick J observed in SZLQW [v Minister for Immigration and Citizenship [2008] FCA 1279] at [9], it may simply be a question as to whether an order should be made dispensing with any requirement to comply with the Rules, as is permitted under r 1.34 of the 2011 Rules. As his Honour also observed, although compliance with the Rules should not be lightly put aside, compliance should not become an 'instrument of oppression'. And, while it is appropriate to make some allowance for the fact that a party is a litigant in person, that fact alone cannot provide a basis for the Court exercising a jurisdiction which it does not have.

That is the approach I will apply in this case.

Consideration

42    Mr Ascic's notices of appeal and submissions are, with respect, difficult to follow. They contain much material that is irrelevant to any issues that could arise on an appeal from the primary judgment. They also contain much that is scandalous. But I do not think they are incomprehensible. The notice of appeal complains that the line of cases concerning the 1988 Act since Blackman has interpreted the legislation incorrectly. It claims that this is the result of concerted action on the part of Comcare and its advisers and of the Tribunal. It makes some general allusions to justiciability. It is possible to understand all this, at the level at which it is put.

43    The difficulty is, rather, that it is put at such a high level of generality that no error on the part of the primary judge can be identified. As a matter of substance, the notice of appeal does not specify appealable errors. It neither says what the correct construction of the legislation is, nor indicates where and how the primary judge departed from that construction. As a result the notice of appeal is not connected to any aspect of the primary judgment. The issue of justiciability, for example, does not appear to have been raised before the primary judge. It is outside the appellate jurisdiction conferred on the Court - in this case, a jurisdiction to correct error committed by the Court in its original jurisdiction - for the Court to engage in a free ranging exercise to right perceived (and undescribed) wrongs in the construction of the 1988 Act. Yet that is clearly and expressly what Mr Ascic wants the Court to do. That is confirmed by the nature of the orders Mr Ascic seeks, none of which would follow from the identification of any error in the primary judgment. For those reasons, the notice of appeal is incompetent. It effectively seeks to invoke a jurisdiction the Court does not have.

44    The proposed amended notice of appeal does, at least, make an assertion as to the effect of the legislation, namely that it does not extinguish common law rights to compensation. It also says that the primary judge erred by accepting Comcare's and the Tribunal's view of the law, and in failing to understand that this is based on, or serves, 'illegal fabrications that should not ever have taken place'. While this is all very general too, it would be perhaps possible to give Mr Ascic the benefit of the doubt by linking those two aspects together, so as to construe the proposed amended notice of appeal as contending that her Honour erred by failing to find that the legislation did not extinguish common law rights to compensation.

45    It is apparent from the summary of the primary judgment given above that this issue did not have a prominent place in the proceeding before the primary judge, but it may be that Mr Ascic at least raised it in that proceeding. As noted above, her Honour dealt with an apparent contention by Mr Ascic that his claim was not for permanent impairment, but was for compensation for personal injury under s 27 of the 1971 Act. Her Honour did so by holding that it was not within the purview of the Tribunal's powers to have considered any claims that fell outside the claim made in the form by which Mr Ascic commenced his claim for compensation in 2016, being a claim for permanent impairment compensation. At the end of that discussion, her Honour went on to comment at [99] (emphasis added):

Mr Ascic did not tender the transcript [of the Tribunal hearing], take this Court to parts of the transcript that might have assisted him or take the Court to any evidence that he was seeking common law damages before the Tribunal, and as counsel for Comcare submitted, it was open to Mr Ascic to withdraw the claim for compensation on the basis of permanent impairment and to start again with some different claim that he alleged it was open to him to bring.

46    Later, in the course of dismissing his application for leave to amend the notice of appeal, the primary judge noted (at [130]) that one proposed ground concerned both s 27 of the 1988 Act and a claimed entitlement to common law damages. Her Honour said:

To the extent Mr Ascic purports to refer to or assert a claim based on common law damages, it is to be recalled that no such claim formed part of the reviewable decision, as discussed above under the heading 'The limit on the Tribunal's jurisdiction'. To the extent Mr Ascic sought to rely on the definition of non-economic loss in the 1988 Act, s 124(3) operates in any event so that no compensation is payable under s 24 (referred to in s 27(1)), and furthermore s 27(3) operates to exclude such claim and the definition therefore does not assist him. In the circumstances, leave is refused to amend the notice of appeal to assert this ground.

47    These references in the primary judgment suggest that the issue of Mr Ascic's claimed entitlement to common law damages may have been raised before her Honour. Therefore it is possible, with some strain and giving Mr Ascic the benefit of the doubt at several points, to construe the minute of proposed amended notice of appeal as related to the primary judgment.

48    Nevertheless, Mr Ascic needs leave to rely on that minute as his amended notice of appeal. The deficiencies in that minute as described above are numerous and serious. It would be straining altogether too much to grant leave to rely on it, and leave is refused.

49    Mr Ascic asked during oral argument whether, if there were concerns about his proposed minute of amended notice of appeal, he could have permission to file a further amended notice. But there would be no point in giving leave to do so. That is because the sole issue possibly emerging from the minute of proposed amended notice of appeal which is capable of being construed as an allegation of error in the primary judgment has no merit. Mr Ascic now seems to assert a right to common law damages. But the primary proceeding was an appeal from a decision of the Administrative Appeals Tribunal on a question of law. It would obviously have been outside the jurisdiction of the Tribunal to award common law damages or to make any declaration as to the availability of a remedy of that kind. The Tribunal's jurisdiction and powers when reviewing a decision are limited to reconsideration of that specific (administrative) decision within the boundaries of the particular legislation, and cannot be exercised at large: Lees v Comcare (1999) 56 ALD 84 at [39]. The process established by the 1988 Act is not one of considering any compensation claim, but only claims that are provided for by the Act. And that is even before one starts to consider the obvious difficulties Mr Ascic would face in establishing any common law right to compensation in view of the statutes of limitations. I am satisfied, as Mansfield J was in Zambini at [13], that there is no apparent ground of appeal that is arguable, even if properly expressed.

50    That Mr Ascic seeks something that it is not in this Court's power to give is confirmed by the nature of the remedies described above which he seeks in the present appeal, being millions of dollars of compensation. Once again, it is outside the appellate jurisdiction conferred on the Court to engage in a broad exercise of attempting to identify any potential claim to compensation that Mr Ascic might seek to pursue. The task on appeal is limited to the identification of any error in the primary decision, and that proceeding was itself limited to the task of identifying any errors of law made by the Tribunal in the exercise of its purely statutory jurisdiction. As Comcare has pointed out, if, despite the obvious obstacles, Mr Ascic does have a common law damages claim, he is free to pursue it in an appropriate forum.

51    Mr Ascic's deep sense of grievance is no doubt genuinely felt, and concerns what he perceives to have been years of ill treatment. But it would be misguided to permit him to ventilate that grievance by granting leave to raise on appeal a point that is of no merit and no utility.

Conclusion

52    Leave to amend in terms of the minute of proposed amended notice of appeal is refused and the application to dismiss the appeal is allowed. In those circumstances it is unnecessary to deal with Comcare's application for security for costs in the sum of $25,000. Mr Ascic must pay Comcare's costs of the appeal including the costs of the notice of objection to competency and the interlocutory application.

Associate:

Dated:    20 October 2022