Lever v Comcare [2007] FCA 99 (8 February 2007)

Last Updated: 8 March 2007

FEDERAL COURT OF AUSTRALIA

Lever v Comcare [2007] FCA 99

ADMINISTRATIVE LAW – Application for extension of time from tribunal – criteria to consider when evaluating grant for extension.


Administrative Appeals Tribunal Act 1975 (Cth) s 44.


Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29
Comcare v Mooi (1996) 69 FCR 439

























RONALD LEVER v COMCARE
NSD 2023 OF 2006

BUCHANAN J
8 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2023 OF 2006

BETWEEN:	RONALD LEVER Applicant
AND:	COMCARE Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	8 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The applicant is granted an extension of time in which to file an appeal under s 44 of Administrative Appeals Tribunal Act 1975 (Cth).

THE COURT DIRECTS:

1. The applicant file a Notice of Appeal conforming to the requirements of Order 53 of the Federal Court Rules by 4pm on 1 March 2007.

2. The applicant is to prepare appeal papers in accordance with Order 53 rule 16 of the Federal Court Rules. I refer to the Registrar supervision of preparation of the appeal papers in accordance with Order 53 rule 15(3).

3. Within fourteen days after settlement of the appeal papers the applicant shall file and serve a written outline of submissions in support of the appeal.

4. Within fourteen days of receipt of the applicant’s written outline of submissions the respondent shall file and serve a written outline of submissions on the appeal.

5. The applicant may, if he wishes, file written submissions in reply within seven days of receipt of the respondent’s written outline.

6. The applicant is to notify my Associate when the process of exchange of submissions is complete and the matter is ready to fix a date for hearing the appeal

7. The matter will be listed for further directions to fix a date for the hearing of the appeal and/or to deal with any issues arising from the foregoing directions.

8. Liberty is reserved to the parties to apply to have the matter listed for further directions upon at least three days notice to the other party and the Court.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2023 OF 2006

BETWEEN:	RONALD LEVER Applicant
AND:	COMCARE Respondent

JUDGE:	BUCHANAN J
DATE:	8 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1 This matter concerns an application for an extension of time to file and serve a notice of appeal from the Administrative Appeals Tribunal (‘the AAT’). The application was filed by the applicant on 24 October 2006.

2 It seeks to challenge a decision of the AAT made on 11 September 2006. The application for an extension of time is opposed.

3 Mr Lever attempted to initiate an appeal against the decision of the AAT on 9 October 2006; that is, on the 28^th day permitted for an appeal to be brought. Had he used the right procedures on that day, no extension of time would have been necessary. As it happened, he used the wrong form and failed to sign the initiating process.

4 This matter was brought to his attention by the Registry of this Court and in due course he filed his present application. The period of delay thereby occasioned is only a matter of two weeks. I see no real difficulty in excusing him this oversight, particularly as there can be no question of any real prejudice arising to the respondent.

5 Ms Dinnen who appeared for the respondent before me today, however, in opposing the application for extension of time, drew my attention to a judgment of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. In that judgment his Honour distils a number of matters to which attention should be given in evaluating whether an extension of time should be granted. Six matters were referred to by his Honour, including the necessity to be satisfied that it is proper to grant the application, whether an acceptable explanation for the delay has been furnished, whether any prejudice will be occasioned to the respondent and consideration of fairness. In addition, and this was the point which was particularly relied upon to oppose the application for extension, his Honour observed that the merits of the substantial application are properly to be taken into account. It is upon this issue that the respondent focussed the burden of its attention.

6 The criticism made of Mr Lever’s process is that it fails to identify with precision the question of law which he seeks to agitate on the appeal. The questions of law said to be raised by the appeal include the proper application of principles stated by this Court in two decisions, Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29 and Comcare v Mooi (1996) 69 FCR 439. The way in which the application of those cases arises for consideration is not stated. I accept that there is a lack of precision about the issues which are said to arise from a consideration of these two cases and that is a matter to which attention should be given by the applicant and his legal advisers before the matter proceeds much further.

7 Those two cases proceed upon different lines of reasoning. In Hart v Comcare a Full Court disagreed with the approach taken by the judge in Comcare v Mooi. In the circumstances I am not prepared to conclude that there is not a question of law which might not arise from a consideration of the application of those cases to Mr Lever’s circumstances as addressed by the decision of the Administrative Appeals Tribunal.

8 Should it become clear that in fact the appeal which he desires to bring raises no question of law for consideration by this Court, then that is a matter which can be dealt with in connection with the hearing of the appeal, whether by motion challenging the competency of the appeal or at the hearing of the appeal itself.

9 In the circumstances I am satisfied that it is proper to grant an extension of time in which to appeal and I so order.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan

Associate:

Dated: 8 February 2007

Solicitor for the Applicant:	Mr J Sefton of Employment Lawyers
Solicitor for the Respondent:	Ms D Dinnen of Australian Government Solicitor
Date of Hearing:	8 February 2007
Date of Judgment:	8 February 2007