Griffiths v Australian Postal Corporation [2008] FCA 486

FEDERAL COURT OF AUSTRALIA

Griffiths v Australian Postal Corporation [2008] FCA 486

GEOFFREY GRIFFITHS v AUSTRALIAN POSTAL CORPORATION NSD 321 OF 2008

ALLSOP J

11 APRIL 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 321 OF 2008

BETWEEN: GEOFFREY GRIFFITHS

Applicant

AND: AUSTRALIAN POSTAL CORPORATION

Respondent

JUDGE: ALLSOP J

DATE OF ORDER: 11 APRIL 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time in which to file and serve a notice of appeal be refused. 2. The applicant pay the costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 321 OF 2008

BETWEEN: GEOFFREY GRIFFITHS

Applicant

AND: AUSTRALIAN POSTAL CORPORATION

Respondent

JUDGE: ALLSOP J

DATE: 11 APRIL 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT

1 This is an application for an extension of time to file and serve a notice of appeal from orders made by a Judge of this Court, who dismissed an appeal from a decision of the Administrate Appeals Tribunal (the "Tribunal") made by a Senior Member. The decision of the Senior Member was a decision about costs in relation to an application that was before the Tribunal under the Safety, Rehabilitation and Compensation Act 1988 (Cth). 2 There was no appeal from the substantive decision of the Tribunal; an appeal was brought only in relation to the question of costs. The point which is said to arise by counsel for the applicant is said to be an important question of law as to the operation and the statutory authority of the Tribunal in hearing matters under the Safety, Rehabilitation and Compensation Act. 3 There appears in counsel's submissions to be a debate in relation to the proper application and extent of the decision of this Court in Lees v Comcare (1999) 56 ALD 84. It is submitted that there are competing approaches in the Tribunal and in this Court about the authority of the Tribunal to deal with incapacity at the same time as dealing with injury. For present purposes, I am prepared to accept that there may well be a significant issue of law that needs to be resolved in the operation of the Safety, Rehabilitation and Compensation Act. However, this application is an entirely inappropriate vehicle for the ventilation of that issue. 4 The issue that the current counsel for the applicant wishes to ventilate was one which, it is plain from the transcript, was not taken before the Senior Member. Indeed, counsel for the applicant acting in the hearing before the Tribunal appears to have taken a decision after there had been cross-examination, which is entirely inconsistent with the point. I make no criticism at all of counsel for that. It may well have been a wise tactical decision, but he appears to have taken a decision to restrict, and to urge the Tribunal to restrict, attention to the question of injury only and not to extend to incapacity. 5 The Senior Member thereafter dealt with the matter on that basis, taking the view that he was required to deal with the question of injury only (and as urged by the then counsel for the applicant). That is the issue which is said to be of importance to be agitated and decided by a Full Court. From the Senior Member's decision on costs, approached on that basis, the matter came before a Judge of this Court. There is some ambiguity in the submissions of counsel for the applicant. However, it does appear clear that then counsel before the primary judge (who was the same counsel as before the Senior Member) did not bring to the Judge's attention any line of authority which is now sought to be agitated as the subject of the Full Court appeal. The primary judge expressed his view that no substantive error had been exhibited by the approach of the Senior Member, and in all the circumstances one can understand why. 6 Fresh counsel has come into the matter. Indeed, he came into the matter after time for the filing of notice of appeal had expired or shortly prior thereto. Whilst there is an explanation for the delay, it is in my view not an appropriate one. I do not say that critically of the solicitor who swore the affidavit, but it is plain that a view was taken that there was little prospect of success on the appeal until another view was expressed by current counsel, who was the annotator of a service in relation to this area of the law. His view came to the attention of the solicitor. 7 Whilst I make no personal criticism at all of either the solicitor or current counsel, time limits are there for good reason and I do not think that this is an adequate explanation for the delay. Nevertheless, more importantly, I would not hold that problem against the applicant if I thought, first that there was otherwise an appropriate issue to be raised and secondly, that this was a proper vehicle for the ventilation of that issue before the Full Court. Given the way the matter has come forward, it would be permitting a fresh issue to be raised on appeal in circumstances where there have been at least two occasions in which it could have been more clearly raised at a time when the matter was being dealt with, either before the Senior Member or the primary judge. 8 Further, notwithstanding the submission of counsel, I am not persuaded that even if the point be right there would be a necessary effect on the order for costs. Without going into the matter, the evidence is that the applicant did not fare well under cross-examination in relation to aspects of the matter and it is not clear at all that even if this issue were able to be ventilated with clarity it would have any necessarily determinative effect on the outcome of the costs order, being the only matter in dispute. 9 For these reasons, the matter is not an appropriate vehicle for the raising of the issue in my view. In those circumstances and given the lack of satisfactory explanation for the delay, the application for an extension of time in which to file and serve a notice of appeal should be refused and I so refuse it. 10 The Commonwealth, through the Postal Commission, has sought costs. I see no reason why costs should not follow the event and I will order that the applicant pay the costs of the application.