FEDERAL COURT OF AUSTRALIA Peczalski v Comcare [1999] FCA 366 ADMINISTRATIVE LAW – Workers' Compensation – application for an extension of time to appeal under s 44 Administrative Appeals Tribunal Act 1975 (Cth) – parallel application for an extension of time to seek orders for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) dismissed – reasons for delay – merits of proposed appeal – prejudice to the respondent Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1), s 7(7), s 59, s 114 Administrative Appeals Tribunal Act 1975 (Cth) s 44 Administrative Decisions (Judicial Review) Act 1977 (Cth) s 10(2)(b) Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 applied Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314 cited Chowdhary v Bayne [1999] FCA 41 cited 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 cited Comcare v A'Hearn (1993) 45 FCR 441 cited Livesey v New South Wales Bar Association (1983) 151 CLR 288 cited Webb v The Queen (1994) 181 CLR 41 cited Comcare v Burton (1998) 50 ALD 846 cited Commonwealth v Ford (1986) 65 ALR 323 cited ALEXANDER S PECZALSKI v COMCARE AG 59 of 1998 FINN J CANBERRA 1 APRIL 1999 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY AG59 OF 1998 BETWEEN: ALEXANDER S PECZALSKI Applicant AND: COMCARE Respondent JUDGE: Finn J DATE OF ORDER: 1 APRIL 1999 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. 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 AG59 OF 1998 BETWEEN: ALEXANDER S PECZALSKI Applicant AND: COMCARE Respondent JUDGE: FINN DATE: 1 APRIL 1999 PLACE: CANBERRA REASONS FOR JUDGMENT 1 On 27 August 1997 the Administrative Appeals Tribunal ("the Tribunal") upheld an appeal to it by Comcare, the present respondent, and determined that as at 8 January 1992 the applicant, Alexander Peczalski, had not suffered an injury in terms of s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act"). It gave reasons for its decision. On 29 August the applicant's solicitor wrote to the applicant's wife notifying her of the Tribunal's decision and requesting that she communicate it to her husband who was at the time in Poland (the country of his birth). 2 Mr Peczalski returned to Australia on 18 December 1997. It is his evidence that he did not receive the reasons until about that time nor was he aware until then that he must lodge any appeal to this Court within 28 days of the decision. He has conceded though that he was aware of the decision itself prior to his return. I would emphasise in passing that Mr Peczalski represented himself before me. He is both educated and articulate. He has lived in Australia since 1980. He is accomplished in the English language. 3 On 17 July 1998 Mr Peczalski filed an application for an extension of time in which to file and serve a notice of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). 4 On 9 September 1998 he filed as well an application for an extension of time to file and serve an application for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act"). The actual grounds relied upon in the ADJR application were filed on 9 October 1998. They need not be reproduced here. 5 Accompanying the application of 9 September is an affidavit that purports to explain the reasons for his delay in filing for an extension of time "for appeal between 18 December 1997 and 17 July 1998" (the date of the Administrative Appeals Tribunal appeal). 6 It is brief and can be set out in full. "1. Adjusting to Australia's condition (Jan-Feb). 2. Trip back to Poland (27 March – 3 May 1998) to finalise business and personal matters started the previous year. 3. Received a letter from the Respondent legal advisors demanding a refund (early May). 4. Searching for and renting a flat (May). 5. Applying for advice to Legal Aid (May-June). 6. Deteriorating health, particularly back condition (May – June). 7. Starting to analyse documents and transcripts from the AAT hearing (May). 8. Discovering possible falsification of the evidence tabled at the AAT hearing (May). 9. Exchange of correspondence with Comsuper re. release the original document for full forensic examination (refused) (May-June). 10. Awaiting for the result of the forensic examination (performed on photocopy) (June-July). 11. Received the result of examination performed on photocopy (early July). 12. Filing an application for extension of time for appeal (17 July 1998)." 7 I should note additionally that prior to Mr Peczalski lodging his applications, Comcare first demanded (in early May 1998) a refund from him of payments made and then later commenced proceedings in the Supreme Court of the ACT to recover $101,401.34 under s 114 of the SRCAct, Mr Peczalski having made clear by letter of 5 June 1998 that he disputed he had any such liability and he sought a waiver of the liability. The Tribunal's Decision 8 The nature of the appeal to the Tribunal can be stated briefly. Mr Peczalski sought compensation in January 1992 in respect of an injury to his back said to have been sustained in the course of his employment. He attributed it to an incident on 31 August 1991 when he was moving bookshelves and other office equipment. He had previously denied having had any prior back condition or back pain. The Tribunal both found that he had had such a condition from 1985 and that that condition was the same as his condition in 1992 when he made his claim. Obviously significant adverse credibility findings were made against him, the Tribunal making plain its reasons for them as I will later indicate. 9 Furthermore the Tribunal rejected Mr Peczalski's account of the alleged 31 August 1991 incident and rejected that a frank inquiry was sustained on that date. 10 The Tribunal also found that, for the purposes of s 7(7) of the SRC Act, Mr Peczalski had in a 1985 Medical Report Form made a wilful and false representation that he did not suffer and had not previously suffered from that back disease and that he was not in consequence entitled to compensation under the scheme of the Act. 11 I would note that s 7(7) provides. "(7) A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease." The Two Applications 12 As I have noted Mr Peczalski has sought extensions of time, first under the AAT Act and, then, under the ADJR Act. Having invoked the appeal machinery of the AAT Act it is, in my view, inappropriate in the present circumstances for Mr Peczalski to have had resort to the ADJR Act as well. In Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 484 Davies J said that: "As s 44 of the AAT Act provides a specific procedure for the granting of relief by this Court in respect of decisions of the Administrative Appeals Tribunal, that procedure should be adopted. An application brought under s 5 of the ADJR Act, when an appeal under s 44 of the AAT Act is available, should be dismissed as of course." 13 While Davies J's view may be expressed somewhat more inflexibly than is necessary or appropriate: cf Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314 at 316; it encapsulates a sound principle to be followed when, as here, a s 44 application has been instituted and that application makes adequate provision for the review of the Tribunal's decisions: cf ADJR Act, s 10(2)(b): see also Chowdhary v Bayne [1999] FCA 41. 14 Accordingly, I will dismiss the application for an extension of time under the ADJR Act. The Application under the AAT Act 15 I have already set out the essence of Mr Peczalski's explanation such as it is of his delay in applying the appeal. He conceded before me that he could not "give a convincing explanation" of it. Mr Peczalski alleged that in May 1998 he began to suspect that "key documents" leading to the rejection of his claim had been forged or otherwise falsified or tampered with. On 29 June – nearly 3 weeks after Comcare had instituted its Supreme Court claim – he sought (inter alia) those documents from Comcare under s 59 of the SRC Act. Insofar as presently relevant that request was rejected on 21 August on the grounds that the documents sought had previously been supplied to his solicitors and that he could obtain copies from them. 16 On 13 July he obtained a preliminary forensic examination of a photocopy of one of the documents he wishes to challenge. It states insofar as presently relevant. "Re: Preliminary Examination of Photocopy Documents I received for preliminary examination a group of eight photocopies. I directed my attention to one photocopy document headed "SECTION 5 HISTORY OF MEDICAL EXAMINATIONS, ADVICE OR TREATMENTS" and bearing an image of a Department of Health stamp impression with date 17 JUL 1985. Amongst the handwritten entries reproduced on this photocopy page is a sentence which reads "Says he has Never had any back pain in the past". There appears to be significant evidence on this photocopy that the original may have been subjected to alteration and erasure of a previous entry. I would need to examine in the laboratory the original document and associated pages in order to confirm this, and possibly to decipher remnants of the original entry. I could then examine and compare inks and possibly make relative time of writing determinations of the entriey on this and other pages. The original should be minimally handled." 17 Mr Peczalski's first application to this Court was made 4 days later on 17 July 1998. This allegation of falsification of documents is at the centre of his proposed challenge to the Tribunal's decision though it has been enlarged upon to include other documents and allegations of witness tampering as well. Additional, independent grounds have also been propounded. These will be returned to below. 18 Before considering the present application it is necessary to emphasise what is the issue to be decided. It is not whether the Tribunal was in error in its decision – although the merits of the proposed application can properly be taken into account by me. Rather it is whether an extension of time to institute an appeal to this Court should be granted. 19 The principles to be applied in such an application are well known. I need merely state the following and in proposition form. 1. To comply with the provisions of s 44 of the AAT Act Mr Peczalski 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; (c) prejudice to the respondent; and (d) 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." I will comment briefly on each of these. All militate against granting the extension sought. (a) The Explanation Given 20 In his submissions to me Mr Peczalski conceded he could not give a convincing explanation of his delay in seeking to appeal. For the most part he occupied himself with other pursuits from 20 December 1997 (when on his version of events he became aware of the 28 day requirement) until May 1998 (when he claims his suspicion concerning the documents was aroused and when coincidentally he became aware that Comcare was seeking its refund). It was only in late June as I have noted that he sought documents from Comcare, the purpose of his so doing being unstated to Comcare. If his objection to the Tribunal's decision was great, his resolve to impugn it was a unhurried one. Indeed the circumstances rather tend to suggest that it was Comcare's demand of a refund of over $100,000 that stirred Mr Peczalski to action. (b) Other Actions Contesting the Decision 21 Until at least May 1998 Mr Peczalski rested on his rights. Importantly until at the earliest the letter of 29 June 1998 when he sought documents from Comcare, but more probably until he filed this application he took no steps to make Comcare aware that he contested the finality of the Tribunal's decision. On the contrary. His letter of 5 June to Comcare, in response to Comcare's claim for a refund, disputes both the Tribunal's decision and his liability to pay. But far from indicating an impending challenge to the decision it sets out five factors relating to his personal financial and employment circumstances in light of which Mr Peczalski requested "that you consider waiving the above amount that you are claiming". (c) Prejudice 22 Although Comcare has submitted it may be prejudiced in its Supreme Court proceedings by further delay if the extension is granted, the only matter of prejudice which I consider of moment relates to that arising from the passage of time and the fallibility of the recall of witnesses. The vital events in this matter occurred in 1985 (of a medical nature) and in 1991 (the alleged accident). The Tribunal acknowledged the difficulties it encountered because of the imperfect recall of events. Indeed much of Mr Peczalski's case before me regarding alleged falsification of documents is itself based on his claimed recent recall of those documents and he acknowledges that his recall now is inconsistent with the evidence he gave to the Tribunal when cross-examined on the documents. In this matter, where adverse credibility findings were an important ingredient of the Tribunal's decision, I consider the problem of fading/changing recall of increasingly distant events is not insignificant. (d) The Merits of the Proposed Appeal 23 As I have noted earlier, Mr Peczalski is without legal representation in this matter. From his various applications and his written and oral submissions I have ascertained that his objections to the Tribunal's decision are as follows. (i) The evidence presented to the Tribunal was in material respects forged or tampered with as was the evidence of at least one witness. (ii) Fresh evidence of Mr Peczalski's condition would controvert the Tribunal's conclusions and the Tribunal had a duty to inquire into his actual condition but failed to do so. (iii) The adverse credibility findings ought not to have been made. (iv) The Tribunal was biased. (v) Because of the inappropriate weight given relevant matters, the Tribunal's decision was so unreasonable that no reasonable person could have arrived at it. (vi) Evidence of experts was improperly admitted by the Tribunal. (vii) The Tribunal's decision was an improper exercise of power in that, having previously accepted that Mr Peczalski had sustained an injury, Comcare disputed that such was the case before the Tribunal. 24 Of those various grounds I need only refer in any detail to (i) and (iii). Grounds (ii), (iv), (v) and (vi) simply betray an understandable misunderstanding by Mr Peczalski of the relevant law. I will refer later to ground (vii). As to ground (ii), fresh evidence in AAT appeals will only be admitted in limited cases and this, clearly, is not such a case: see Chowdhary v Bayne, above, where the authorities are referred to. Mr Peczalski was represented at the Tribunal and if he has any complaint on the score of the medical evidence placed before the Tribunal – I do not suggest he has – it is with his legal representatives. 25 Ground (iv) (bias), as presented, appears to amount to little more than aspersions cast on the Tribunal because of its credibility findings and the factual findings it made in consequence. On the material before me, the matters complained of would be found to lie at some distance from what it would be necessary to make out to satisfy the "reasonable apprehension of bias" test: on which see Livesey v New South Wales Bar Association (1983) 151 CLR 288; Webb v The Queen (1994) 181 CLR 41. 26 Ground (v) (Wednesbury unreasonableness) is simply unarguable given the evidence before the Tribunal and the findings made on it. This is not to say that a differently constituted Tribunal may not have seen matters differently. Rather that the findings made were not unreasonable in the relevant sense. 27 Ground (vi) (expert evidence) misunderstands the nature of expert evidence. I explained this to Mr Peczalski at the hearing and need not repeat this here. 28 Ground (vii) (abuse of power), while potentially problematic, seems unlikely to raise an issue of real substance. While there may well be some controversy as to the matters the Tribunal has jurisdiction to determine on a SRC Act appeal to it: see Comcare v Burton (1998) 50 ALD 846 and cf Commonwealth v Ford (1986) 65 ALR 323 (a decision under the predecessor to the SRC Act); the present circumstances do not enliven that controversy. Mr Peczalski had made a claim for compensation under the SRC Act in respect of an injury suffered. In reviewing a decision on that claim it was competent for the Tribunal to determine whether or not such impairment as he suffered was attributable to a compensable injury notwithstanding that that question was not in issue when the reviewable decision was made. It was a proper subject of inquiry in passing on the very claim made. It did not relate to a claim that was not the subject of the reviewable decision: see Comcare v Burton, above. While Mr Peczalski's asserted his "injury" resulted from an incident, it was open to the Tribunal to determine whether his injury was in fact a "disease": see SRC Act, s 4(1) "injury". 29 Ground (i) (forgery/tampering) and ground (iii) (credibility) are interrelated. The prospects of a successful appeal on either of these grounds are not at all great. The allegation of forgery of, or tampering with, documents is quite problematic. Mr Peczalski claims that some number of documents were altered or forged in significant respects with the consequence that admissions or accounts of events have been attributed to him which are untrue. Equally he alleges (a) that a significant witness, his supervisor Mr Goodsell, to whom he alleges he complained at the time of his 31 August 1991 injury, had been induced to give evidence inconsistent with Mr Peczalski's version of events; and (b) an exercise book in which a Mr Game, the OH&S officer, said he made a record of Mr Peczalski's report of his injury, had pages removed from it – including, presumably, the page recording the report. 30 The wrongful interference alleged is attributed to various parties – to Mr Peczalski's department and to Comcare. Such evidence as is pointed to to lend support to the allegations is either equivocal or is likely to be found unconvincing. There is, for example, no reason at all advanced other than the making of the assertion, to impugn Mr Goodsell's evidence. Likewise the Tribunal critically evaluated Mr Game's evidence – "he was evasive and inconsistent" – before refusing to attach much weight to his evidence and particularly to his alleged recording of Mr Peczalski's report. As the Tribunal noted "[t]he exercise book evidence emerged after he had indicated that he probably would not have made a record." 31 More telling, answers to documents adverse to his claim which he says were forged are themselves consistent with answers Mr Peczalski does not dispute he gave. I give as one example his assertion of the forgery of a cross placed in box answering "no" to the question in his compensation claim form "Did the injury/illness result from one specific incident", while he nonetheless accepted that in the form notifying his department of his injury he filled in the question "date of injury" with the answer "a few times". 32 For my own part I would not consider it likely that the forensic examination of documents will be likely to advance Mr Peczalski's case to any great degree. With there being significant evidence that Mr Peczalski denied having suffered back pain prior to 1985 (for example the express denial of this in answer to Q37 of his Medical Report Form of 4 September 1985 (not reproduced here)), there is likewise a body of evidence of his experiencing such pain prior to that date. As illustration of this, I refer to para 26 of the Tribunal's reasons: "26. The Applicant's answer to question 37 [no back pain] was clearly false. The sick leave records from the University of New South Wales show (see Ex R 15) that he had had back pain in the past, and sufficient to warrant his absence from work on 18 November 1981, 4 March 1982, and 3 June 1982. Moreover, from 30 March 1985 he had began to consult with Mr Le Lievre [a chiropractor] concerning a pain in his (the Applicant's) lower back. Mr Le Lievre's notes (Ex A 11) record on the occasion of the first visit: Lower back pain. Onset – last weekend mildly and eased and then again severely today when digging .. History – some LBP 4 yr ago and [treated] by a chiropractor in Sydney." The forensic report itself, even if suggesting the possibility of an alteration made to a handwritten document, does not suggest any impropriety in the matter. Placed in the context of the evidence generally it is not likely to be accorded any great significance if an appeal were to be allowed to occur. 33 The credibility findings were founded on inconsistencies of the type to which I have referred above relating to Mr Peczalski's various descriptions of his back condition over time and of extrinsic evidence of it. While in relation to his inconsistent answers, he proffers alternate and innocent explanations, I am far from satisfied that they would be likely to be found to advance his cause on an appeal were an extension of time granted. Conclusion 34 Having regard to all of the above factors I do not consider the case to be an appropriate one in which to grant the extension of time sought. The combination of no convincing explanation of the delay in seeking to appeal, Mr Peczalski's long inaction in the matter, the prospect of prejudice arising from fading recall of events some almost 15 years ago and the slender merits of the proposed appeal, lead to no other conclusion than that the application be dismissed. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 1 April 1999 Applicant appeared in person Counsel for the Respondent: L Gabriel Solicitor for the Respondent: Barker Gosling Date of Hearing: 29 March 1999 Date of Judgment: 1 April 1999