Federal Court of Australia

Haywood v Comcare [2026] FCA 773

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time filed on 17 October 2025, be dismissed.

2.    The applicant pay the respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

YOUNAN J:

Introduction

1    By an application filed on 17 October 2025, the applicant seeks an extension of time to appeal a decision of the (then) Administrative Appeals Tribunal, dated 31 August 2016: Haywood v Comcare [2016] AATA 667 (2016 decision). By that decision, the Tribunal affirmed a decision of the respondent (Comcare) made on 5 September 2014 to deny the applicant’s claim for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).

2    There was no dispute before the Tribunal that the applicant suffered an adjustment disorder to which his employment contributed, and that his condition constituted a “disease” within the meaning of s 5B of the SRC Act.

3    The issue before the Tribunal was whether the applicant’s disease was suffered as a result of “reasonable administrative action taken in a reasonable manner in respect of his employment”, such that the disease was excluded from the definition of “injury” under s 5A of the SRC Act. The Tribunal confirmed that it was, and accordingly, Comcare was not liable to pay the applicant compensation.

4    The draft notice of appeal seeks orders that the 2016 decision be overturned, and that all records created by the applicant’s former employer that allege historical criminal acts on the part of the applicant be expunged, or amended to reflect that the applicant was denied procedural fairness in relation to those allegations.

5    The applicant represented himself at the hearing on 26 March 2026, and appeared by audio-visual link from the ACT Registry.

6    The respondent seeks that the application be dismissed, with costs, for reasons including, inter alia, delay, lack of merit in the proposed appeal, and the public interest in the finality of disputes.

7    For the following reasons, the application should be dismissed, with costs.

Factual background

8    The background to this proceeding is detailed in several decisions of the Tribunal: see, e.g., paragraphs [14]–[44] and [69]–[78] of the 2016 decision; and [8]–[59] of Haywood v Comcare (Compensation) [2021] AATA 5682. Only matters relevant to this application are reprised below.

9    The applicant began working for the (then) Commonwealth Department of the Environment in 2003. From 2011, the applicant reported directly to Ms Beath.

10    On 31 January 2012, the applicant attended a workplace meeting in which Ms Beath recounted a joke she had heard on television the night before, which the applicant found offensive.

11    On 6 July 2012, the applicant was required to attend a counselling session with Ms Beath (and others) in relation to his workplace behaviour. The applicant was later diagnosed with an adjustment disorder as a result of this counselling session.

12    On 9 December 2013, the applicant made a claim for compensation for “anxiety disorder (or similar)”, which was refused by Comcare on 7 April 2014, pursuant to s 14 of the SRC Act.

13    On 4 July 2014, the applicant requested a reconsideration of Comcare’s decision to deny the applicant’s compensation claim. On 5 September 2014, Comcare affirmed its decision.

14    On 11 November 2014, the applicant applied to the Tribunal for review of the Comcare decision under s 64 of the SRC Act. On 31 August 2016, Comcare’s decision was affirmed by the Tribunal.

15    On 11 December 2014, the applicant’s employment with the Department was terminated for reasons that are not presently relevant.

Related claims

16    On 26 February 2018, the applicant submitted a further claim for workers’ compensation to Comcare for a separate psychological injury, described as an “Adjustment/Anxiety Disorder”. The claim related to an application to the Fair Work Commission, which the applicant made on 28 May 2014 in respect of alleged bullying and harassment, and a statement that had been made to the Commission by Ms Beath in response to that application.

17    On 6 August 2018, Comcare declined the applicant’s claim, which determination was affirmed on 31 October 2018, following a request by the applicant for reconsideration.

18    On 11 December 2018, the applicant applied to the Tribunal for a review of Comcare’s decision. The applicant states that Ms Beath gave the following evidence at the hearing before the Tribunal on 17 November 2020 (the relevance of which will later become apparent):

I don't recall the first time I met yourself Mr Haywood. I can't give you that date or time. I think it may have been in the department. I clearly remember you groping me one day at a grand final day at the rugby union, where you were clearly under the influence of alcohol in the presence of my husband and two children.

19    On 16 March 2021, the Tribunal affirmed Comcare’s decision refusing the applicant’s second workers’ compensation claim (2021 decision).

20    On 26 February 2021, the applicant made a report to the Australian Federal Police in relation to Ms Beath’s evidence.

21    On 7 April 2021, the applicant wrote to the Tribunal, requesting that the 2016 decision be reopened in light of that evidence.

Application to the Federal Court

22    On 4 May 2021, the Tribunal advised the applicant by letter that the 2016 decision could not be reopened:

As mentioned in the letter which accompanied the Tribunal’s decision, you may consider seeking judicial review. The only avenue to have a decision of the Tribunal overturned is to appeal to the Federal Court of Australia on a question of law.

23    More than four years later, on 17 October 2025, the applicant applied to the Federal Court for an extension of time under r 33.13(1) of the Federal Court Rules 2011 (Cth) to appeal the 2016 decision.

24    At a case management hearing on 2 December 2025, it was agreed between the parties that it was appropriate for the Tribunal (originally named as first respondent on the application) to be removed as a party to the proceeding, which was effected by an order of this Court on 15 December 2025.

Application for an extension of time

25    The principles applicable to the exercise of the Court’s discretion to grant an extension of time are well-settled. Factors taken into account include: whether there is an acceptable explanation for the delay; the length of the delay; the nature of the decision and, in that context, relevant public interest considerations, including the need for finality in litigation; the merits of the appeal; and any prejudice to the respondent (although the absence of prejudice is not in itself sufficient to justify the grant of an extension): Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348–349; Parker v The Queen [2002] FCAFC 133 at [6]. The exercise of the Court’s discretion, one way or another, is not a comment on the character of the applicant, or his competence in the workplace, which is not in dispute in this proceeding.

26    As noted by Banks-Smith J in Parr v Commissioner of Taxation (2022) 176 ALD 363 at [40], while the principles in Hunter Valley were considered in the context of an application for an extension of time under the Administrative Decisions (Judicial Review) Act 1977 (Cth), they have been similarly applied to applications under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act): see, e.g., Peczalski v Comcare (1999) 58 ALD 697 at [19]; and Franich v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 1362 at [20].

27    An extension should be granted only to enable justice to be done between the parties: see, e.g., Gallo v Dawson (1990) 93 ALR 479 at 480. There must be good reason to dispense with the requirement that the application be filed within the specified time: Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38 at [23]. Even where there is sufficient reason for delay, it will rarely be in the interests of the administration of justice to grant leave absent realistic prospects of success: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62].

Timeframe for appeal

28    For the purposes of the present application, the timeframe for an appeal to this Court from a decision of the Tribunal was provided for in s 44 of the AAT Act (now repealed), which relevantly provided:

44 Appeals to Federal Court of Australia from decisions of the Tribunal

Appeal on question of law

(1)     A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

…

When and how appeal instituted

(2A)     An appeal by a person under subsection (1) or (2) shall be instituted:

(a)     not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is given to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows; and

(b)     in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976.

(2B)     In the interest of justice, the grounds on which the Federal Court of Australia may allow further time under paragraph (2A)(a) include, but are not limited to, the following grounds:

(a)     if the Tribunal made an oral statement as to the reasons for the decision and afterwards gave a written statement of reasons for the decision—the written statement contains reasons that were not mentioned in the oral statement;

(b)     the text of the decision or a statement of reasons for the decision has been altered under section 43AA.

…

29    An application for an extension of time to appeal a decision of the Tribunal may be made in accordance with r 33.13 of the Federal Court Rules, which provides:

33.13 Application for extension of time to start appeal

(1)     A person who wants to apply for an extension of time within which to start an appeal mentioned in section 44(2A) of the AAT Act must file an application, in accordance with Form 67.

Note: The application may be made during or after the period mentioned in section 44(2A) of the AAT Act.

(2)     The application must be accompanied by the following:

(a)     the decision from which the appeal is to be brought;

(b)     the reasons for the decision, if published;

(c)     an affidavit stating:

(i)     briefly but specifically, the facts on which the application relies; and

(ii)     why the appeal was not filed within time;

(d)     a draft notice of appeal that complies with rule 33.12.

Extent of the delay

30    In accordance with s 44(2A)(a) of the AAT Act, absent any further time permitted by this Court, the applicant was required to file any appeal from the Tribunal’s decision dated 31 August 2016, by 28 September 2016. Accordingly, the applicant’s delay in seeking to appeal that decision is more than nine years.

31    The respondent submits that the delay in filing the application is “exceptional”, which characterisation is not contested by the applicant.

Explanation of the delay

32    The applicant claims that the delay in appealing the 2016 decision is “due to the Commonwealth’s failure to act as a ‘Model Litigant’”. In that regard, the applicant refers to “exceptional circumstances” which arose on 17 and 18 November 2020, requiring Comcare to issue an apology to the applicant and initiate settlement of the initial workers’ compensation claim. Those circumstances pertain to the evidence given by Ms Beath to the Tribunal on 17 November 2020, which the applicant claims was relevant to his allegation of bias in his initial compensation claim. The applicant claims that he drew this to the attention of Comcare’s legal representatives on 18 November 2020.

33    The respondent submits that s 55ZG(3) of the Judiciary Act 1903 (Cth) makes clear that compliance with Legal Services Directions may not be raised in any proceeding, but that in any event, there has been no conduct by the Commonwealth or the respondent that warrants any consideration of model litigant obligations.

34    The applicant claims that the failure of Comcare to apologise to him and offer to settle his first compensation claim immediately, caused delay. It is not evident how. That is, it is not evident how those “exceptional circumstances” in 2020 prevented the applicant from commencing an appeal from the 2016 decision. Even if the claim is that the relevant ground of appeal did not materialise until 2020, it does not explain the subsequent delay of several years.

35    The applicant outlined a series of actions which he undertook after Ms Beath’s evidence to the Tribunal in 2020:

(1)    On 2 August 2021, he applied for compensation for detriment caused by defective administration, which was refused on 24 February 2022.

(2)    On 11 November 2023, he applied to the Department of Finance for an act of grace payment of $4.5 million, which was refused on 17 October 2024.

(3)    On 30 January 2025, he made a request for reconsideration of the decision not to authorise an act of grace payment, which was refused on 23 July 2025.

(4)    On 26 August 2025, he made a complaint to the Australian Human Rights Commission (AHRC), and was advised on 17 September 2025 that the AHRC was not the most appropriate body to consider the issues the applicant had raised.

36    Insofar as this information was advanced to demonstrate that the applicant was not recalcitrant in pursuing his claims, it does not demonstrate that the applicant was active in pursuing an appeal of the 2016 decision in this Court, as advised in the Tribunal’s letter of 4 May 2021.

37    When pressed at the hearing as to why he did not seek an extension of time to pursue an appeal in 2020 or 2021, the applicant submitted that he was already involved in a related Federal Court proceeding at that time, and had sought (unsuccessfully) to challenge both the 2016 decision and the 2021 decision in that matter: CAP21 v Administrative Appeals Tribunal [2022] FCA 729. The corollary of that explanation is that the applicant decided not to pursue an appeal of the 2016 decision at that time.

38    The applicant was on notice (at the latest) by the Tribunal’s letter of 4 May 2021 that he could appeal the 2016 decision in this Court. On the applicant’s own case, as at 18 November 2020, he was aware that any appeal had to be made within 28 days of the decision being published. Rather than doing so, the applicant pursued alternative avenues of redress, none of which prevented him from also seeking an extension of time to appeal the 2016 decision (as well as the 2021 decision, which related to a separate claim for compensation). Indeed, in CAP21, the applicant’s challenges to the 2016 and 2021 decisions were described by the Court as “quite irrelevant” to the application for judicial review brought by Ms Beath (in relation to her application to prohibit the disclosure and publication of her name and identifying details) (at [57]), in circumstances where the Court acknowledged that the applicant “did not seek judicial review of, or appeal” either the 2016 decision or the 2021 decision (at [59]).

39    Comcare’s reference to the delay as “exceptional” is apt. The principle has been expressed that the longer the delay, the more persuasive the explanation generally needs to be: Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38]. This is not to signify a different (and more exacting) standard or threshold of persuasion. It is simply to acknowledge that the excuse or justification must be proportionate to the concession that is sought.

40    I accept the respondent’s submission that the applicant has not provided an adequate explanation for the delay. The applicant’s conduct is consistent with him having “rested on his rights”: Hunter Valley at 348–349.

41    Even if I were persuaded that the reason provided by the applicant is sufficient to justify an extension of time by which to seek leave to appeal, I would not grant that extension based on my assessment of the proposed grounds of appeal.

Merits of the proposed appeal

42    In assessing the merits of the underlying application, the Court should consider the grounds at a “reasonably impressionistic level” (MZABP at [62]), although it may be appropriate to examine the proposed appeal in some detail in order to reach a conclusion that an applicant’s case is strong or “exceptional”, or conversely, that the case is hopeless: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 at [18] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

43    The applicant contends that the merits of the underlying application are sufficient to warrant the extension sought (i.e., that there is a realistic possibility Ms Beath’s evidence could have changed the outcome of the 2016 decision). The respondent submits that the proposed grounds of appeal do not raise an arguable case that the Tribunal erred in its 2016 decision, although the respondent accepts that the grounds are not entirely without merit.

44    Whether described as “strong” or “exceptional” or otherwise, given the lengthy and unexplained delay (in the sense of an inadequate explanation), the merits of the proposed appeal must be such that they warrant an extension of time, noting that the question of prejudice occasioned by the delay is another factor to be considered in assessing that warrant.

45    The grounds as stated in the draft notice of appeal are as follows:

1.    After the AAT handed down its decision on 31 August 2016 in Gregory Haywood v Comcare [2016] AATA 667, in a related Comcare matter heard four (4) years later by the AAT (Gregory Haywood v Comcare (file no. 2018/7279), CAP21 testified under oath revealing a crucial fact that she had previously withheld from the AAT in relation to a historic sex crime she alleges the Appellant perpetrated against her, but had concealed this fact from the Appellant (her employer, and law enforcement authorities), while taking action against the Appellant in the workplace causing injury. Because CAP21 withheld this crucial evidence from the AAT in Gregory Haywood v Comcare [2016] AATA 667 the AAT failed in its attempt to properly apply the legal tests for bias in that case.

2.    Because of CAP21’s personal history, no action taken by her against the Appellant in the workplace at any time could be considered “reasonable administrative action taken in a reasonable manner in respect of the Appellant’s employment” as the Appellant was being denied procedural fairness in relation to a historic sex crime CAP21 secretly believed the Appellant had committed against her before CAP21 was appointed to the role as the Appellant’s direct supervisor.

46    The respondent submits that the questions raised by the proposed grounds of appeal are (in broad terms): (1) whether there was a miscarriage of justice in the 2016 proceeding, as the Tribunal was unable to properly assess actual and/or apprehended bias (i.e., in the absence of Ms Beath’s “crucial evidence”); (2) whether the actions taken by the Department, including in relation to the counselling session, were reasonable administrative actions in circumstances where Ms Beath’s conduct was affected by an apprehension of bias; and (3) whether the applicant was denied procedural fairness in the 2016 proceeding by the non-disclosure of Ms Beath’s evidence. As the respondent submits, only the second and third of these raise questions of law.

Bias and reasonable administrative action

47    The applicable principles are not in contest. Apprehended bias will be shown if a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring a fair and impartial mind to the making of the decision: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

48    The test requires: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer: Director of Public Prosecutions (Vic) v Smith [2024] HCA 32 at [92], citing QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148 at [38]; see also Charisteas v Charisteas (2021) 273 CLR 289 at [11].

49    The respondent submits that the applicant’s argument in relation to bias fails (at least) at the third stage of the test. That is, a fair-minded lay observer would not consider an isolated alleged personal altercation which occurred outside the workplace and prior to the persons involved working together to give rise to a reasonable apprehension of bias.

50    However, the applicant has not satisfied me that he has reasonable prospects of succeeding at the second (preceding) stage.

51    The fact that the alleged altercation occurred outside the workplace and prior to the persons involved working together, is not a necessary obstacle to the applicant’s argument in relation to bias. Rather, the difficulty lies in the connection between that alleged altercation and the administrative action that is said to have been taken against the applicant. In my view, that connection is missing.

52    The respondent relies on the exclusion in the definition of “injury” in s 5A(1) of the SRC Act pertaining to disease suffered as a result of “reasonable administrative action” taken in a reasonable manner in respect of the applicant’s employment. The respondent says that this refers to the contribution made to the suffering of the disease by an event in the course of the employee’s employment: Comcare v Martin (2016) 258 CLR 467 at [44]. The respondent submits that Ms Beath’s evidence concerned an alleged incident that occurred before the applicant was employed by the Department. As such, it cannot be said to give rise to a question of law about “reasonable administrative action”. I am not convinced that that conclusion necessarily follows, insofar as the action in question may be informed by preceding events, in which case these events may be relevant to consider.

53    In any event, as the respondent submits, the subject of Ms Beath’s evidence is not relevant to the issues that were before the Tribunal in 2016 (and was not considered relevant by the Tribunal in 2021). The issue in that review was whether the applicant’s disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment (2016 decision at [9]).

54    The respondent submits that the question of bias is directed to decisions made by the Department, and that the applicant is intending to attribute decisions of Ms Beath to the Department. My analysis does not depend on a bifurcation of the two. In assessing the merits of the proposed appeal, the question is whether the bias attributed to Ms Beath, the applicant’s supervisor, can be said to inform the administrative action taken by the Department (for which Ms Beath worked at the relevant time).

55    As outlined at paragraphs [107]–[108] of the 2016 decision, the decisions in issue are: (1) the decision to hold the counselling session; and (2) the decisions which were made at the counselling session: viz., that the applicant would attend a communications course; that the Department would take no further action unless there were further complaints; and that the record would be put on file in the Department’s Professional Standards Section, but not on the applicant’s personnel file.

56    The decision to conduct the counselling session was not made by Ms Beath. The logical connection between that decision and any reasonable apprehension of bias which might arise from Ms Beath’s evidence is unclear. As was noted in the 2016 decision, of the three decisions made in the counselling session, the first of those was by agreement, and the balance were favourable to the applicant (2016 decision at [107]).

57    The applicant’s claim in 2016 included that Ms Beath’s conduct was affected by bias due to complaints the applicant had made against her, following what the applicant considered was an inappropriate joke that Ms Beath had made during a work meeting.

58    Accordingly, it is difficult to see how Ms Beath’s evidence of an incident that occurred outside the workplace, before Ms Beath became the applicant’s supervisor, could have any bearing on the 2016 decision, not because of when the incident allegedly occurred, but because of the absence of a logical connection between the bias claimed and the decisions made. This is so even if, as the applicant submits, Ms Beath’s evidence was “withheld” from the Tribunal at that time. That claim assumes the motivations of Ms Beath (and knowledge of the Department), for which there is no evidence before this Court.

59    It is even more difficult to see how a fair-minded lay observer might have a reasonable apprehension of bias, given that Ms Beath gave the applicant a positive performance review some time after the alleged incident, and their relationship was friendly and professional when they began working together. As the respondent correctly notes, the relevant test is not directed towards the decision-maker’s state of mind, but to that of the fair-minded lay observer.

Procedural fairness

60    Procedural fairness requires that an affected person be given notice of, and an opportunity to respond to, adverse information that is credible, relevant, and significant to the decision being made: Kioa v West (1985) 159 CLR 550 at 629 (Brennan J); Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at [15]; AB v Independent Broad-based Anti-Corruption Commission (2024) 278 CLR 300 at [25].

61    The applicant submits that he was not given notice of the allegations made against him by Ms Beath, which denied him a meaningful opportunity to respond, and prevented the Tribunal from being able to make the 2016 decision fairly, as they were both deprived of relevant evidence.

62    Relying on VEAL (at [15]), the respondent submits that Ms Beath’s evidence constitutes information which may be adverse to the applicant personally, but is not credible or relevant, or is of little or no significance to the 2016 decision. In relation to the 2021 decision, the applicant responded to the allegation at length during his cross-examination of Ms Beath, and in oral and written closing submissions at the Tribunal hearing.

63    However, the applicant’s reliance on that information in the 2021 proceeding (at which the applicant was not legally represented) does not demonstrate its relevance to that proceeding (which relevance was denied by the Tribunal) or to the 2016 proceeding (for the reasons I have outlined above).

64    This is not the first time that the applicant has sought to challenge the 2016 and 2021 decisions in this Court: CAP21 at [57]. I consider that the prospect of the applicant succeeding on the proposed appeal is insignificant or unrealistic.

Prejudice and public interest

65    The respondent submits that the Court can infer from the length of the delay that Comcare would be prejudiced if an extension were granted (Garvey v Australian National University (No 2) [2024] FCA 632 at [35]), in circumstances where the applicant’s proposed “questions of law” concern mixed questions of law and fact that involve a significant degree of factual contest.

66    The respondent submits that considerations of prejudice and fairness should also extend to Ms Beath, whose conduct (in allegedly withholding relevant evidence from the Tribunal) is impugned by the applicant’s proposed appeal: see Hunter Valley at 349. The respondent’s position is that the statement made by Ms Beath was not relevant to the application before the Tribunal in 2021, and it was not a matter that was required to be disclosed in evidence in the 2016 proceeding (as it was not relevant). That position is vindicated by an analysis of the merits of the proposed appeal.

67    The respondent submits that the inference of prejudice arises from the effluxion of time and its consequences, including difficulties caused for witnesses in giving evidence and compiling relevant documents. The respondent submits that, if the extension were granted and the appeal allowed, the matter would be remitted back to the Tribunal for reconsideration, requiring the respondent to defend a case the subject of which occurred more than 10 years ago.

68    The applicant submitted that he is “not aware of any prejudice” that would be caused to the respondent approving a legitimate compensation claim, and that the “grave injustice needlessly forced upon him by the state” is sufficient to warrant granting his application.

69    While there is no direct evidence of prejudice occasioned by the delay, I accept the respondent’s submission that such an inference may reasonably be drawn from the extent of delay in this case, and the factual contest in issue. While Ms Beath’s statement was acknowledged by counsel for the respondent to be regrettable and unnecessary, I observe that the applicant denies that the alleged incident occurred, and that this evidence remains untested.

70    The applicant submits that it is always in the “public interest” for courts to deliver justice when alerted to “criminal acts committed by sexual predators holding positions of authority over their vulnerable victims”, as justice must be done and must be seen to be done. It is not evident to which criminal acts the applicant refers. In any event, while the proposed grounds of appeal refer to “a historic sex crime” alleged by Ms Beath, which was not disclosed until after the 2016 proceeding, insofar as the grounds of appeal raise a question of law, they are concerned with the proper application of the legal test for bias and procedural fairness, and not the establishment of the elements of any crime.

71    The respondent submits that the public interest in the finality of litigation, which has a direct bearing upon the Court’s consideration of the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth), strongly supports an extension of time being refused in this case. I agree. As indicated above, the applicant has previously sought to challenge the 2016 decision, albeit not through the avenue of an appeal from that decision. I do not consider that it is in the interests of justice to allow the applicant another opportunity to challenge that decision, albeit in light of what the applicant considers new information, which in my assessment has little, if any, bearing on that decision.

Conclusion

72    I am not satisfied that the applicant’s case is “exceptional” such that it is in the interests of justice for the Court to make the order sought (Vella v Minister for Immigration and Border Protection [2015] HCA 42 at [3]), in circumstances where the delay in pursing an appeal of the 2016 decision is exceptional in length; the explanation offered for the delay is not adequate to explain the delay; the prospects of succeeding on the proposed appeal are insignificant; and a reasonable inference of prejudice may be drawn from the extent of delay and the touted factual contest on appeal. In those circumstances, the public interest in the finality of disputes is served by the refusal of an extension of time.

73    Accordingly, the application for an extension of time to institute an appeal will be dismissed, with costs.

Associate:

Dated:    26 June 2026