Pham v Comcare [2003] FCAFC 166 (5 August 2003)

Last Updated: 13 August 2003

FEDERAL COURT OF AUSTRALIA

Pham v Comcare [2003] FCAFC 166

CHARLES PHAM v COMCARE

V135 of 2003

FINN, MERKEL and STONE JJ

5 AUGUST 2003

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V135 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

BETWEEN:	CHARLES PHAM APPLICANT
AND:	COMCARE RESPONDENT
JUDGES:	FINN, MERKEL and STONE JJ
DATE OF ORDER:	5 AUGUST 2003
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. Leave to appeal be refused.

2. The applicant pay the respondent's costs of the application for leave to appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V135 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

BETWEEN:	CHARLES PHAM APPLICANT
AND:	COMCARE RESPONDENT

JUDGES:	FINN, MERKEL and STONE JJ
DATE:	5 AUGUST 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT

1 This is an application for leave to appeal against a decision of Ryan J refusing an application for an extension of time in which to appeal to the Federal Court under s 44(2A) of the Administrative Appeals Tribunal Act 1976 (Cth) from a decision of the Tribunal dismissing a claim for compensation the applicant had made under the Safety Rehabilitation and Compensation Act 1988 (Cth).

2 The applicant failed to appear at the hearing. We have, nonetheless, considered it appropriate to determine the matter.

3 By way of background, as the primary judge noted:

"... the applicant had been employed in the Department of Defence since 5 January 1996 as an undergraduate dental officer holding the rank of a probationary sub-lieutenant in the Royal Australian Navy ("the RAN"). It was contemplated that, as part of his service the applicant would pursue dental studies at the University of Queensland ("the University").

The applicant's claim for compensation asserted that he had suffered "post-traumatic stress syndrome and the revisiting of childhood persecution as a Vietnamese refugee in concentration camps". That condition was said to have resulted from harassment and discrimination which he had sustained at the hands of both the University and the RAN and from needle-stick injuries which he had suffered while on duty with the RAN."

4 The Tribunal, in a series of fact findings, rejected all of the allegations made by the applicant. These appear at pars 61ff of the Tribunal's reasons and were referred to in abbreviated form by Ryan J.

5 The applicant's original proposed notice of appeal to the Federal Court was obviously deficient, betraying no arguable question of law. At Ryan J's instigation, the applicant's reformulated notice was prepared. It was no less deficient than the notice it replaced. The relevant parts stated:

"2.   THE QUESTIONS OF LAW raised on the appeal are -

A) Illness has been established and documented, but never by the Defence Force due to their Discriminatory Acts; illness is never refuted.

B) Employment: period of employment was established, location of employment is confirmed to be at the University of Queensland.

C) Rehabilitation: is never established, wasn't raised at the tribunal hearing. Mr J Handley goes so far as to indicate that the Applicant refuses medical advice.

3. ORDERS SOUGHT: Decision by Mr J Handley to be overturned.

4. GROUNDS:

Bias and Discriminatory Acts: Mr J Handley, Senior Member, made sure Gregory Seymour, witness, did not take oath prior to giving evidence. Mr Handley's attempt to pervert the course of justice, by using false evidence in his deliberation.

No evidence of rehabilitation was established, and as a matter of fact there is evidence, in the form of late Appeals to the Federal Court and to the High Court, as proof of rehabilitation not established."

6 Referring to the notices, Ryan J commented:

"If I had been persuaded to grant an extension of time, as contemplated by s 44(2B) of the Act, it would have been necessary for the applicant to have proposed a properly formulated notice of appeal identifying a question of law giving rise to an arguable right of review under s 44 of the Act. However, it has been established by a consistent line of authority in this Court that the strength of an applicant's case on the merits has an important bearing on the Court's exercise of its discretion to grant or refuse an extension of time under s 44(2A) of the Act. Thus in Peczalski v Comcare (1999) 58 ALD 697 Finn J noted, at 701;

"The particular factors that are of immediate significance are (a) the explanation given of the delay; (b) the actions of the applicant in contesting the decision otherwise than by appeal; (c) prejudice to the respondent; and (d) the merits of the application.""

7 His Honour concluded that the applicant had failed to identify any question of law on the material as it stood. He also was unable to discern any error of law in the Tribunal's reasons. In consequence there were no prospects of success on the merits. An extension of time would be futile.

8 Insofar as the present application is concerned, the decision in question is clearly interlocutory in character, as Ryan J expressly recognised. As such leave to appeal was required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth); see Vranic v Commissioner of Taxation [2002] FCAFC 26; (2002) 67 ALD 798. The considerations characteristically applied in guiding the Court's exercise of discretion in considering a grant of leave are well accepted. They are:

(1) whether in all the circumstances the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court; and

(2) whether substantial injustice would result if leave were refused supposing the decision to be wrong.

See Decor Corp v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397.

9 As Ryan J's decision was itself a discretionary one his decision could only be impugned on the basis of the well known principles stated in House v The King [1936] HCA 40; (1938) 55 CLR 499 at 504-505.

10 The applicant's proposed notice of appeal is in the following terms (insofar as presently relevant):

"GROUNDS:

Denial of access to

HUMAN RIGHTS AND EQUAL OPPORTUNITY ACT ("THE ACT" 1986)

and to International Conventions to which Australia is party.

Denial of access to basic Human Rights to Education, Health and Equal Opportunity, under:

RACIAL DISCRIMINATION ACT 1975

DISABILITY DISCRIMINATION ACT 1992."

11 This suffers from the same vice as its precursors before Ryan J.

12 Having considered his Honour's reasons we are satisfied that neither of the two considerations to which we have referred are satisfied. Ryan J's decision is, with respect, clearly correct. It betrays no arguable appellable error.

13 Leave to appeal is refused.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Finn, Merkel and Stone.

Associate:

Dated: 6 August 2003

Counsel for the Applicant:	No appearance
Counsel for the Respondent:	J Lenczner
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	5 August 2003
Date of Judgment:	5 August 2003