Raymond John Deighton v Telstra Corp Ltd [1997] FCA 1568 (17 October 1997)

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - application for extension of time to apply for leave to appeal from interlocutory judgment - whether satisfactory reason given for delay - whether an application for leave to appeal would be futile - application dismissed.

Administrative Appeals Tribunal Act 1975 , s 42B

Commonwealth Employees' Rehabilitation and Compensation Act 1988

Southern Cross Exploration NL v Fire and All Risk Insurance Company Ltd (No 2) (1990) 21 NSWLR 200, applied

Hall v The Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423, applied

Eatts v Dawson (1990) 21 FCR 166, applied

Barrett v The Minister of State for Immigration, Local Government and Ethnic Affairs [1989] FCA 269; (1989) 18 ALD 129, applied

Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397, applied

Jarrett v Seymour (1993) 46 FCR 557, applied

Kalaba v The Queen (Federal Court of Australia, Finn J, 13 September 1996, unreported), applied

Wati v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, Davies J, 4 April 1997, unreported), applied

RAYMOND JOHN DEIGHTON v TELSTRA CORPORATION LIMITED

WAG 74 of 1997

LEE, HEEREY, R D NICHOLSON JJ

PERTH

17 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA	WAG 74 of 1997
WESTERN AUSTRALIA DISTRICT REGISTRY

on appeal from a judge of the federal court of australia

BETWEEN:	RAYMOND JOHN DEIGHTON Applicant
AND:	TELSTRA CORPORATION LIMITED Respondent
JUDGES:	LEE, HEEREY, R D NICHOLSON JJ
DATE OF ORDER:	17 OCTOBER 1997
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application be dismissed.

2. There be no order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA	wag 74 of 1997
WESTERN AUSTRALIA DISTRICT REGISTRY

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	RAYMOND JOHN DEIGHTON Applicant
AND:	TELSTRA CORPORATION LIMITED Respondent

JUDGEs:	LEE, HEEREY, R D NICHOLSON JJ
DATE:	17 OCTOBER 1997
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT:

The applicant ("Mr Deighton"), who appears in person assisted by a law student, has sought orders from a Full Court of this Court by an application headed "Application for Extension of Time and Special Leave to Appeal".

On 23 May 1996 the Administrative Appeals Tribunal ("the Tribunal") refused to extend the time within which Mr Deighton could seek review under the Administrative Appeals Tribunal Act 1975 ("the AAT Act") of a decision made by a delegate of the former Australian Telecommunications Corporation ("Telecom"), now Telstra Corporation Limited ("Telstra"), under the Commonwealth Employees' Rehabilitation and Compensation Act 1988 ("the Act").

Mr Deighton had been employed by Telecom between 1952 and 1987. He retired from that employment on the ground of "invalidity" at the age of fifty-six. He is now sixty-five.

In 1990 Mr Deighton lodged a claim under the Act for compensation for incapacity resulting from injuries suffered in the course of, or arising out of, his former employment. That claim was compromised by a Deed of Settlement and by the payment of an amount of compensation in December 1992.

Subsequently, in about 1994, Mr Deighton was found to be afflicted by prostate cancer. Mr Deighton received radiotherapy for the condition and the treatment appears to have been successful. Mr Deighton made known to Telstra his belief that he was entitled to compensation for the incapacity caused by that disease claiming that the disease arose out of his former employment. Mr Deighton contended that in the course of his former employment he had been exposed to frequent contact with Creosote, a substance known to have carcinogenic properties, and to Dieldrin, and that such exposure had caused the onset of the disease.

It seems that the course chosen by Mr Deighton to advance his claim for compensation was to apply to the Tribunal in September 1995 for extension of time in which to make an application to the Tribunal for review. The decision said to be amenable to that application for review was not identified in the application for extension of time . In reasons provided by the Tribunal for the refusal to extend time as sought by Mr Deighton, it was said to have been established at a directions hearing of the Tribunal that the reviewable decision was a decision made in December 1990, being the decision the subject of the previous application for review and to which the Deed of Settlement made in December 1992 related.

That decision, of course, did not consider or, therefore, determine any claim for compensation for incapacity resulting from the occurrence of the disease cancer, such incapacity not arising until at least three years later.

Perhaps Mr Deighton should have been advised that until a decision had been made on such a claim for compensation under the Act, any proceeding in the Tribunal seeking a review of a compensation decision was pointless. However, that question was not addressed and, indeed, it was the position of Telstra that the Tribunal should deal with the application for extension of time on its merits and refuse to extend time. Alternatively, Telstra sought an order that the application for review be dismissed under s 42B of the AAT Act.

The Tribunal decided that it would not be fair in all the circumstances to extend the "time for lodging a fresh application for review of the reviewable decision dated 10 December 1990". Looming large amongst the matters considered by the Tribunal was the execution by Telstra of the Deed of Settlement and payment by Telstra of compensation pursuant to the Deed. The Tribunal also gave consideration to what the Tribunal considered to be an absence of strength in Mr Deighton's claim for compensation under the Act.

In June 1996 Mr Deighton "appealed" to this Court on a question of law from a decision of the Tribunal. The "appeal" was heard by Carr J and dismissed on 13 February 1997. On 6 May 1997 Mr Deighton filed an application for an order that the time within which an appeal may be made to the Full Court of this Court from the judgment of Carr J be extended. The application was heard by French J and dismissed on 22 May 1997.

The application before this Court seeking an extension of time for leave to appeal and leave to appeal from the judgment of French J was filed on 8 July 1997.

We have had the advantage of reading the submissions prepared for Mr Deighton and the submissions of counsel for the respondent. Further, we have had the benefit of oral submissions from the person assisting Mr Deighton and from counsel for the respondent, amplifying the written submissions.

We agree with counsel for the respondent that the decision made by French J refusing an extension of time to appeal was interlocutory in nature. Although on its face it had the appearance of finality it did not finally determine rights of the parties. (See: Southern Cross Exploration NL v Fire and All Risk Insurance Company Ltd (No 2) (1990) 21 NSWLR 200; Hall v The Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423; Eatts v Dawson (1990) 21 FCR 166 at 169 per Morling, Gummow JJ; Barrett v The Minister of State for Immigration, Local Government and Ethnic Affairs [1989] FCA 269; (1989) 18 ALD 129; Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397; Jarrett v Seymour (1993) 46 FCR 557.)

Under O 52 r 10(2)(b) of the Federal Court Rules ("the Rules") an application for leave to appeal from an interlocutory order is to be made within seven days of the order. The application for extension of time in this matter was not made until almost seven weeks after the date of the order.

Order 52 r 10(2)(b) permits the Court to extend the time for such an application but does not state what matters are to be taken into account in determining whether time should be enlarged.

Obviously there must be a satisfactory explanation for any delay in making the application.

Further, given that an appeal from an interlocutory judgment may be prosecuted only by the leave of the Court, being leave that is granted sparingly, it would be necessary for the Court to assess the prospects of such leave being obtained. (See: Kalaba v The Queen (Federal Court of Australia, Finn J, 13 September 1996, unreported); Wati v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, Davies J, 4 April 1997, unreported.)

Also, having regard to the fact that O 52 r 15(2) provides that an order extending the time within which an appeal exercisable as of right may be commenced may be made only if special reasons for such an order have been shown, it must be that no less is required of an applicant for the grant of a like indulgence under O 52 r 10(2)(b) in respect of the enlargement of time in which to make application for the grant of leave to appeal.

Having considered the foregoing matters, we are of the opinion that no reason has been shown why time should be enlarged. Indeed, it is obvious that continuation of the present proceeding would be an exercise in futility. An application for leave to appeal from the judgment of French J would be doomed to fail. In essence, Mr Deighton seeks to pursue a claim for compensation under the Act. The decisions of the Tribunal and of French J and Carr J have no bearing on that claim. The proceedings in the Tribunal and in this Court have been misguided.

It is obvious that if Mr Deighton has a course to follow it is to make a claim for compensation under the Act for incapacity resulting from a disease which manifested itself in 1994 and 1995. If such a claim has been made and refused, Mr Deighton may seek review under the AAT Act of that decision or, alternatively, of the refusal to make a decision in respect of that claim.

On the material before the Court it was not clear whether such a claim had been made and determined as provided by the Act. If Mr Deighton has to make an application to the Tribunal to review a decision on that claim, and extension of time to make such an application to the Tribunal is necessary, in deciding whether to extend time the Tribunal would consider different circumstances from those considered by the Tribunal when the application to extend time to review the decision made in December 1990 was refused.

The question whether the Deed of Settlement which compromised the dispute which arose from the decision made in December 1990 would, or could, be a bar to a claim for compensation in respect of incapacity resulting from the onset of cancer in 1994 or 1995 could only arise if the Tribunal was required to review a decision made under the Act that relied upon that ground.

The application for extension of time for leave to appeal will be refused and the application dismissed.

With regard to the matter of costs, if any submission in respect of an order for costs is to be made by the respondent, it is to be filed by 24 October 1997 and responded to by the applicant by 31 October 1997, and in the absence of such a submission it will be ordered that there be no order as to costs.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of their Honours Justice Lee, Justice Heerey, and Justice R D Nicholson JJ.

Associate:

Dated: 17 October 1997

The Applicant appeared in person.
Counsel for the Respondent:	P J Hannan
Solicitor for the Respondent:	Mony de Kerloy
Date of Hearing:	17 October 1997
Date of Judgment:	17 October 1997