FEDERAL COURT OF AUSTRALIA Cooper v Comcare [2002] FCA 788 COMPENSATION – commonwealth employees – claim by applicant for lump sum compensation for permanent impairment of lower back – finding by Administrative Appeals Tribunal that impairment became permanent from 1 December 1988 – Tribunal decision given on 8 October 1999 – present application by applicant for extension of time within which to appeal – motion by respondent to dismiss application as frivolous – whether findings of fact by Tribunal unchallengeable – whether Tribunal findings preclude liability for lump sum payment in respect of lower back as a matter of law Administrative Appeals Tribunal Act 1975 (Cth) ss 44(1), 44(2A), 44(2A)(a), Compensation (Commonwealth Government Employees) Act 1971 (Cth) Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 24, 27 Federal Court Rules O 20 r 2(1) Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 referred to Comcare v A'Hearn (1993) 45 FCR 441 referred to Department of Social Security v Van Den Boogaart (1995) 37 ALD 619 referred to Comcare v Levett (1995) 60 FCR 14 followed Walton v Gardiner (1993) 177 CLR 378 referred to JAMES COOPER v COMCARE W150 of 2002 RD NICHOLSON J 20 JUNE 2002 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W150 of 2002 BETWEEN: JAMES COOPER APPLICANT AND: COMCARE RESPONDENT JUDGE: RD NICHOLSON J DATE OF ORDER: 20 JUNE 2002 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The respondent's motion to dismiss the applicant's application for an extension of time to file and serve a notice of appeal be allowed. 2. The applicant's application for an extension of time to file and serve a notice of appeal from the Administrative Appeals Tribunal decision given on 8 October 1999 be dismissed. 3. 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 WESTERN AUSTRALIA DISTRICT REGISTRY W150 of 2002 BETWEEN: JAMES COOPER APPLICANT AND: COMCARE RESPONDENT JUDGE: RD NICHOLSON J DATE: 20 JUNE 2002 PLACE: PERTH REASONS FOR JUDGMENT 1 The applicant applies for an extension of time in which to file and serve a notice of appeal in respect of a decision of the Administrative Appeals Tribunal ("the Tribunal") given on 8 October 1999. His application seeking such extension was lodged on 21 May 2002. 2 The application is brought in reliance on s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act"). That subsection provides to the Court a discretion to permit an appeal pursuant to s 44(1) of the AAT Act to be brought "within such further time as the Federal Court of Australia (whether before or after the expiration of [the 28th day after the day on which a document setting out the terms of the decision of the Tribunal is furnished to the person]) allows". 3 The respondent now brings a motion seeking dismissal of the application, relying on O 20 r 2(1) of the Federal Court Rules. Background circumstances 4 On 19 February 1987 the applicant sustained an injury to his left ankle in the course of his employment. On 22 May 1987 he sustained a second injury, this time to his lower back. Liability to pay compensation in respect of both injuries was accepted pursuant to the Compensation (Commonwealth Government Employees) Act 1971 (Cth) ("the 1971 Act"). 5 On 10 April 1997 the applicant lodged a claim for compensation pursuant to ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act") for permanent impairment in respect of his back injury which had occurred on 22 May 1987. 6 On 31 August 1998 a review officer of the respondent made a decision affirming a determination of 4 June 1998 rejecting the applicant's permanent impairment claim; ceasing the respondent's liability to pay compensation to the applicant in respect of his left ankle on and from 20 May 1998; and ceasing the respondent's liability to pay compensation to the applicant in respect of his back condition on and from 17 September 1998. 7 The applicant appealed the decision of the review officer. The appeal was heard by the Tribunal on 23 – 25 June 1999. Its decision delivered on 8 October 1999 relevantly decided that the respondent was not liable to pay lump sum compensation under ss 24 and 27 of the SRC Act to the applicant in respect of his lower back injury. 8 On 5 November 1999 the applicant lodged an appeal from the decision of the Tribunal to the Federal Court of Australia wherein he challenged other aspects of the Tribunal's decision but not the decision refusing his application for permanent impairment. That appeal was withdrawn on 30 March 2000. 9 On 5 April 2002 the applicant filed an application for special leave to appeal to the High Court in respect of a decision of the Full Federal Court given on 8 March 2002 dismissing the applicant's appeal from the decision of the Federal Court given on 9 August 2001 in respect of other matters than the applicant's lower back condition. In the special leave application the applicant sought an order from the High Court that he be awarded lump sum compensation for his back injury. When it was pointed out to him that the High Court had no jurisdiction to make such an order as it did not form any part of the judgment appealed from, the applicant withdrew that part of his special leave application. Apart from the applicant seeking that order, the applicant took no steps to notify the respondent of his intention to challenge the decision of 8 October 1999 until lodgement of the present application for extension of time to lodge a notice of appeal. Statutory time limit on appeal 10 Section 44(2A)(a) of the AAT Act specifies that an appeal must be instituted "not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is furnished to a person…". The applicant received a copy of the decision of 8 October 1999 on that date. Accordingly, the time for filing an appeal expired on 5 November 1999. Consequently, the present appeal in respect of which the extension of time is sought, which was lodged on 21 May 2002, was lodged some two years and six months out of time. 11 Factors relevant to the exercise of the discretion to extend time are unrestricted. However, in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 – 349 Wilcox J identified a number of matters of potential relevance. The first is "an acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" for time to be extended. In Comcare v A'Hearn (1993) 45 FCR 441, the Full Federal Court said at 444 that "while an acceptable explanation for the delay is not an essential precondition, it is to be expected that such an explanation will normally be given". Secondly, consideration needs to be given to action taken by the applicant to show in effect that he has not "rested on his rights". Thirdly, prejudice to the respondent requires consideration. Fourthly, mere absence of prejudice is not enough and the unsettling of other people or of established practices may weigh against an extension of time. Fifthly, the merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. Sixthly, regard may be had to considerations of fairness as between the applicants and other persons otherwise in a like position. 12 These factors have been held to be applicable to applications under s 44 of the AAT Act: Department of Social Security v Van Den Boogaart (1995) 37 ALD 619 at 620. Respondent's submissions 13 In support of the motion for dismissal the case for the respondent relies on the need for "the merits of the substantial application" to be properly taken into account in considering whether an extension of time should be granted. It is submitted that even if any explanation by the applicant reaches the level of acceptability required, there is no basis for extending time because it is clear the merits of the substantive application are entirely against the applicant. This is because, it is submitted, the finding of fact made by the Tribunal (which cannot now be challenged) that the "impairment of the applicant's lower back became permanent, in the sense of 'likely to continue indefinitely', prior to 1 December 1988" is fatal to the applicant's proposed appeal on the authority of Comcare v Levett (1995) 60 FCR 14. 14 In Levett's case the Full Court (Lockhart, Beazley and Moore JJ) held said at 18: "Nowhere in s 39 or elsewhere in the 1971 Act is there created an entitlement to compensation as a lump sum for a back injury other than by the redemption of an entitlement to periodic payments. Thus, the exclusionary provisions in s 124(3)(b)(iii) would apply to a back injury if it caused an impairment to which s 24 otherwise applies and the impairment occurred while the 1971 Act was in force." At 19 the Full Court continued by stating: "… the plain purpose of s 124(3) is to exclude the operation of s 24 in the case of an employee who suffered a disability which, as described in the language of Pt III of the 1971 Act, was not compensable by a lump sum payment or, if it was, a lump sum was paid." The 1971 Act ceased operation when the 1998 Act commenced operation on 1 December 1998. 15 Accordingly, it is said that the finding of fact by the Tribunal that the impairment of the applicant's lower back occurred during the application of the 1971 Act attracts the application of the principle in Levett's case and precludes the applicant from having any claim for a lump sum payment in respect of his lower back. The result, it is submitted, is that the applicant's case is "foredoomed to failure": Walton v Gardiner (1993) 177 CLR 378 at 393. Consequently, it is submitted, there is no basis for extending the time in which to appeal. 16 There is a further consideration relied upon in support of the respondent's motion. It is that the applicant's proposed appeal does not raise any "questions of law" but rather merely raises questions of fact. Section 44 of the AAT Act makes it plain that an appeal may be brought only on a "question of law". 17 Additionally, it is submitted for the respondent that the applicant brings no convincing explanation for the two and half year delay. Further, it is said that there would be prejudice to the respondent if the matter were to proceed because of its reliance on contemporary medical evidence. Applicant's submissions 18 The fundamental submission made by the applicant is that the injury to his lower back occurred after 1 December 1988. He founds this submission on the reports of Dr Collibee, an orthopaedic surgeon which were dated 30 June 1988 and 18 June 1992. That, however, was the subject of consideration and a finding of fact by the Tribunal in the following paragraphs of its reasoning: "86. The critical issue, for the purposes of the applicant's entitlement under the 1988 Act to lump sum compensation for that permanent impairment of his lower back, is the time at which that impairment became "permanent" within the meaning of s 24 of the 1988 Act. On the first day of the hearing of this proceeding Mr Herron (for the applicant) conceded that, according to the medical evidence, that impairment had become permanent before 1 December 1988. On the final day of the hearing, however, after Mr Herron had ceased to represent the applicant, that concession was withdrawn by the applicant who then submitted that his lower back impairment became permanent in 1992 when Mr Collibee reported that he was totally unfit. 87. In the Tribunal's opinion, Mr Herron's concession was, having regard to the medical evidence, rightly made. In his first report, dated 30 June 1988, Mr Collibee stated that the applicant's "low back pain will probably continue". In his second report, dated 18 June 1992, Mr Collibee noted that the applicant was continuing to suffer from the aggravation of his spondylolisthesis, thereby confirming the accuracy of his original prognosis. There was, no contemporaneous medical report or opinion which contradicted Mr Collibee's original prognosis in June 1988. The Tribunal does not attach much weight, in relation to the issue of the time at which the applicant's lower back impairment became permanent, to the recent medical reports, given that they were prepared some 11-12 years after that impairment arose. The Tribunal notes, that the evidence of Mr Hardcastle, who was called as a witness by the applicant, was consistent with the proposition that the applicant's impairment became permanent at the time it occurred (that is, 22 May 1987) because his opinion was that once the applicant's spondylolisthesis became symptomatic – as it did when it was aggravated by his fall on 22 May 1987 – it would, given the applicant's age, tend to cause recurring problems. 88. Accordingly, the Tribunal finds, primarily on the basis of Mr Collibee's report of 30 June 1988, that the impairment of the applicant's lower back became permanent, in the sense of "likely to continue indefinitely", prior to 1 December 1988. It is not necessary for the Tribunal to specify a precise date, prior to 1 December 1988, by which that impairment had become permanent but the Tribunal is satisfied, on the basis of Mr Collibee's uncontradicted contemporaneous opinion expressed in his report of 30 June 1988, that the impairment was such that it was likely to continue indefinitely as at the date on which he examined the applicant (namely, 4 May 1988) at the latest. The Tribunal is, however, inclined to the view that, given the nature of the impairment and the applicant's age at the time, it could reasonably be said that, at the time it occurred on 22 May 1987, it was likely to continue indefinitely and was, therefore, "permanent" (as statutorily defined). 89. It follows from the Tribunal's finding that the permanent impairment of the applicant's lower back occurred prior to 1 December 1988 that the applicant is not entitled to lump sum compensation under ss 24 and 27 of the 1988 Act in respect of the injury which occurred on 22 May 1987 which resulted in that permanent impairment." 19 It is apparent from the evidence referred to by the Tribunal that there was evidence upon which it was entitled to reach the conclusion which it did. Consequently, there is no ground for thinking there is any error of law on the part of the Tribunal in this finding of fact due to the absence of any evidence upon which to base it. The finding of fact concerning the date on which the impairment of his lower back became permanent is conclusive and invokes the application of the rule in Levett's case. 20 The applicant denies there would be any prejudice to the respondent by the exercise of the discretion in his favour because he would seek to rely totally on the medical evidence in the Tribunal decision. He also tendered orally as an explanation for delay his involvement in other proceedings related to matters other than his lower back condition. Nevertheless, as submitted for the respondent, the record of that which appears in an affidavit before this Court shows that during the period in question the applicant was capable of bringing fresh applications and therefore could have brought an application in respect of the extension of time if necessary in relation to his lower back condition. Conclusion 21 In my opinion the respondent is correct in the submission that the merits of the point which the applicant would seek to argue on an appeal if an extension of time were granted are entirely precluded to him by the application of the rule in Levett's case, brought into operation by the unchallengeable findings of fact of the Tribunal. In that situation I consider it is correct that the respondent's motion seeking dismissal of the applicant's application should be granted on the ground that the application is frivolous. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson . Associate: Dated: 20 June 2002 The applicant represented himself Counsel for the Respondent: Mr S Pilkinton Solicitor for the Respondent: Dibbs Barker Gosling Date of Hearing: 11 June 2002 Date of Judgment: 20 June 2002