Dickinson, Peter William v Comcare [1998] FCA 663

FEDERAL COURT OF AUSTRALIA ADMINISTRATIVE LAW - Administrative Appeals Tribunal - Application for an extension of time to make application for orders of review - Explanation for delay - Whether delay in provision of written reasons sufficient explanation of total delay - Whether censurable conduct by the decision maker warrants extension of time of itself. Administrative Appeals Tribunal Act, ss 43(2A) and 44 Repatriation Commission v Tuite (1992) 37 FCR 571 (Applied) Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Applied) Secretary, Department of Social Security v Van Den Boogaart (1995) 37 ALD 619 (Applied) Comcare v A'Hearn (1993) 45 FCR 441 (Applied) PETER WILLIAM DICKINSON (Applicant) v COMCARE (Respondent) ACT G21 of 1998 FINN J CANBERRA 22 MAY 1998

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ACT G21 of 1998

BETWEEN: PETER WILLIAM DICKINSON

Applicant

AND: COMCARE

Respondent

JUDGE: FINN J

DATE OF ORDER: 22 MAY 1998

WHERE MADE: CANBERRA

THE COURT ORDERS THAT: The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ACT G21 of 1998

BETWEEN: PETER WILLIAM DICKINSON

Applicant

AND: COMCARE

Respondent

JUDGE: FINN J

DATE: 22 MAY 1998

PLACE: CANBERRA

REASONS FOR JUDGMENT This is an application for an extension of time in which to institute an appeal to this court from a decision of the Administrative Appeals Tribunal ("the Tribunal") under s 44(2A) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"). As in the Tribunal hearing, the applicant Mr Dickinson has represented himself on this application. The respondent in the matter is Comcare, the decision in question relating to an unsuccessful claim against Comcare for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). Background Circumstances and Chronology (1) On 29 October 1996 Mr Dickinson was provided by the Tribunal with a document containing the terms of the Tribunal's decisions though not its reasons for decision. (2) By letter of 27 November 1996 Mr Dickinson notified the District Registrar of the Tribunal that he wished to appeal the Tribunal's decision "to the High Court". On 28 November, the day on which the above letter was received, the District Registrar sent a facsimile to Mr Dickinson in the following terms (formal parts omitted): "Pursuant to section 43(3) of the Administrative Appeals Tribunal Act 1975 enclosed is a copy of the decision. You may request written reasons within 28 days of receipt of the decision. Under section 44 of the Act, a party may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal. Any appeal to the Court is to be instituted with the Court not later than 28 days after a copy of the decision is furnished to the party, or within such further time as the Court allows. Any appeal is to be instituted as prescribed by the Federal Court of Australia Rules (Order 53 Rule 5). The address of the Court's Registry in this State is: The Registrar Federal Court of Australia Family Law Court Building Cnr University Avenue & Childers Street CANBERRA CITY ACT 2601" (3) On 28 November Mr Dickinson in turn requested written reasons for decision from the Tribunal. These were not provided. (4) On 19 June 1997 he wrote to the District Registrar again in the following terms: "On the 27 November 1996 I wrote to you indicating that I wished my case between myself and COMCARE heard before Miss WJF Purcell (Senior Member) to be applied to the High Court. I realise now that I should have been asking for an appeal to the Federal Court. Enclosed in the same envelope was a copy of an AAT document dated 29 October 1996. I spoke to my local Member of Parliament yesterday who prompted me to write to the AAT requesting the transcript of the hearing and the reasons for Miss WJF Purcell dissuasion. I phoned in about March requesting this and was told that Miss WJF Purcell had not written up her report. How long does this normally take?" (5) Notwithstanding her statutory obligation to provide reasons within 28 days of a request: the AAT Act, s 43(2A); Senior Member Purcell did not furnish her reasons until 28 July, a period of somewhat over 200 days from the date of the request. (6) On 28 October 1997 Mr Dickinson wrote to the President of the Tribunal requesting her, as President, to "review" his case. He challenged the Senior Member's findings and reasons paragraph by paragraph. The letter concluded with (inter alia) the following: "I request that you consider the reasons I have put forward, and advise me of the correct procedure I need to follow to have this case reviewed, and hopefully have an outcome with some justice." (7) The President replied by letter of 17 November 1997 indicating she did not have the power to undertake the review sought. Nonetheless she indicated: "Should you wish to challenge the decision of Senior Member Purcell, you will need to lodge an appeal with the Federal Court. In Sydney the Federal Court is located at Level 16, Law Courts Building, Queens Square, Sydney and the telephone number is 02 9230 8567. Appeals to the Federal Court must normally be made within 28 days of the Tribunal making its decision but the Court does have the discretion to extend time in certain circumstances." (8) On 26 February 1998 Mr Dickinson filed the present application in this court. The Basis of the Application Mr Dickinson has submitted that he regarded his letter of 27 November 1996 to the District Registrar indicating that he wished to appeal to the High Court, as his "notice of appeal" so that he should be treated as if his appeal was only 1 day out of time. Accordingly he says his actions subsequent thereto should be seen in that light and that his letter to the President, for example, was simply a step taken to seek to advance "his appeal". And he relies upon the inordinate delay in his being provided with reasons for decision as a significant circumstance in his favour. The Applicable Principles 1. To comply with the provisions of s 44 of the AAT Act Mr Dickinson had to file a notice of appeal from the Tribunal's decision within 28 days of being furnished with a copy of the decision and this irrespective of whether he then obtained reasons for decision: see Repatriation Commission v Tuite (1992) 37 FCR 571. This time limit expresses the prima facie rule that proceedings commenced outside it will not be entertained. 2. The discretion to extend time to institute an appeal is not expressly confined by specified criteria. Nonetheless the court has on a number of occasions indicated that there is a range of factors, of varying actual importance in a given instance, of which account appropriately can be taken to guide the exercise of discretion to extend time. They have been conveniently listed by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 and have been held to be applicable to applications under s 44 of the AAT Act: see Secretary, Department of Social Security v Van Den Boogaart (1995) 37 ALD 619 at 620. 3. 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; and (c) the merits of the application. I would add that in relation to factor (a) - the explanation given of the delay - the Full Court of this court in Comcare v A'Hearn (1993) 45 FCR 441 at 444 noted that while there is no rule that an acceptable explanation is an essential precondition, "it is to be expected that such an explanation will normally be given". (4) The failure of the Senior Member to provide her reasons in the timely fashion envisaged by the AAT Act is censurable. Nonetheless an extension of time will not be granted so as to express that censure where the circumstances themselves do not otherwise warrant the grant of such an extension. Conclusion This is not a case in which it is appropriate to grant an extension. Whatever may have been the case if such an application had been made at the time, or shortly after, he was provided with reasons for decision, the delay in its totality is such that Mr Dickinson is simply too late. He has not provided an acceptable explanation of it in circumstances where an explanation properly could be expected. I do not accept that he entertained the belief across the period with which I am concerned, that he had already appealed. The letter from the District Registrar of 28 November 1996 made plain to whom, and how, an appeal was to be made. His familiarity with that letter can, I consider, properly be inferred from his own letter of 19 June 1997 where he refers expressly to an appeal to the Federal Court. He has provided no explanation at all as to why he did nothing in the matter from when he received the reasons for decision until he wrote to the President of the Tribunal in late October. And then he did not seek to prosecute any appeal to the Federal Court. Rather he sought an internal review of the decision. And after he was told yet again that any appeal had to be lodged with the Federal Court he did nothing further in the matter for over three months. His explanation of this delay such as it is was was that several days before Christmas he enquired of the Federal Court registry in Canberra about the process of appealing to the court. He was informed so he says, that he would not have a hearing before Christmas. He had no sense of urgency in the matter. He took some number of periods of leave around this time. And he decided to do nothing until 27 January. Then for personal reasons, it was not until 26 February that he filed his application. The above may be an explanation of his actions from when he received the communication from the President until when he filed his application. Acceptable it is not. Mr Dickinson was clearly dissatisfied with the Senior Member's decision. And he was for a very lengthy period badly dealt with by the Senior Member in her failure to give him reasons. His dissatisfaction, however, was not translated into action of the type that would satisfy me that he was trying, albeit mistakenly, to appeal the decision in question. Indeed he did not act in the matter, particularly after he received the reasons, with such attention to the protection of his own interests as could reasonably have been expected of him. He has become the author of his own harm in this. Insofar as the merits of the appeal are concerned it is sufficient if I note that the conclusion arrived at by the Tribunal was based on sworn evidence of Mr Dickinson that was quite adverse to the case he was advancing. While Mr Dickinson in his notice of appeal contests both a finding of the Tribunal and its failure to make reference in its reasons to some medical evidence, I do not consider that the appeal itself raises questions of law that have any real prospects of being answered favourably to him. In conclusion then, I consider that the extension of time should not be given and that the application be dismissed. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn