Wiegand v Comcare Australia [2005] FCA 1904

FEDERAL COURT OF AUSTRALIA

Wiegand v Comcare Australia [2005] FCA 1904 JOACHIM WIEGAND v COMCARE AUSTRALIA No S 215 of 2005 FINN J ADELAIDE 21 DECEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 215 OF 2005

BETWEEN: JOACHIM WIEGAND

APPLICANT

AND: COMCARE AUSTRALIA

RESPONDENT

JUDGE: FINN J

DATE OF ORDER: 21 DECEMBER 2005

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application for leave to extend time be allowed. 2. The applicant have leave to file and serve a Notice of Appeal on or before 20 January 2006. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 215 OF 2005

BETWEEN: JOACHIM WIEGAND

APPLICANT

AND: COMCARE AUSTRALIA

RESPONDENT

JUDGE: FINN J

DATE: 21 DECEMBER 2005

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application for an extension of time in which to appeal to this Court on a question of law from a decision of the Administrative Appeals Tribunal ("the Tribunal") under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). The considerations of which account is taken on such an application are well known. I simply note that the time limit of 28 days from the date upon which an applicant is furnished with a copy of the decision expresses the prima facie rule that proceedings commenced outside that time will not be entertained. Nonetheless, the discretion to extend time to institute an appeal is not expressly confined by specified criteria. 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 properly can be taken to guide the exercise of discretion to extend. They have been conveniently listed by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [348]-[349]. The particulars factors that are of immediate significance are the period of the delay and the explanation given for it, prejudice to the respondent and the merits of the application. 2 I simply note that the actual period of the delay is between one and three days. This of itself suggests that a benign approach should be taken to an application having this character, the moreso when the explanation given for it is health related. Mr Wiegand has filed a report from his treating psychiatrist explaining the effects of his condition – he suffers from major depression – and its effect on his progress in lodging his appeal. 3 The decision, the subject of the appeal, relates to a claim made by Mr Wiegand for benefits under the Safety Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act") in respect of an injury (being his condition of major depression) which he claims was contributed to in a material degree by his employment. Put shortly, the decision of the Deputy President was that Mr Wiegand did in fact suffer from that condition; that it was contributed to in a material degree by his employment by the Australian Taxation Office; but that, for the purpose of the definition of "injury" in s 4(1) of the SRC Act, it was an injury suffered by an employee as a result of failure by the employee to obtain a promotion or benefit in connection with his employment and thus did not constitute an injury for the purposes of the Act. That conclusion resulted from the application of the principles enunciated in Hart v Comcare [2005] FCAFC 16 to the findings made by the Tribunal. 4 Mr Wiegand, in his Notice of Appeal, contests the applicability of those principles to this matter. He also contends that to the extent that the Tribunal made findings that his condition resulted from his failure to obtain a promotion or to obtain a benefit, there was no evidence to justify those findings. On a reading of the reasons of the Tribunal Mr Wiegand's contention seems particularly adventurous. However I do not have before me any of the documents or other materials that were before the Tribunal. I nonetheless am satisfied that Mr Wiegand's claim is on its face a weak one, if indeed there is an arguable claim at all. 5 This is a matter which clearly has pre-occupied Mr Wiegand over what is now a long period of time. It has already been appealed once and in his favour to this Court. His non-compliance with the time limit stipulated in s 44(2A) of the AAT Act is virtually of a de minimis character and it has a cogent explanation. It is, in my view, in the interests of justice that Mr Wiegand, who has been striving to have his day in court, be provided with his opportunity to do so. He has had little opportunity to articulate the basis of his claim, largely because of misapprehension on his part as to what was procedurally required of him. I take this course conscious that his chances of success are not great. I have on two occasions warned him of the possible costs consequences to him of prosecuting this proceedings. 6 I regard the circumstances of this matter as being quite unusual. If there had been any element of prejudice to the respondent - which there is not - or a more significant period of delay, it is unlikely I would have taken the course that I have. 7 Accordingly I give the applicant leave to extend time under s 44(1) of the AAT Act and give leave to the applicant to file and serve a Notice of Appeal on or before 20 January 2006. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.