Federal Court of Australia Leach v Comcare [2020] FCA 1206 File number: QUD 704 of 2019 Judgment of: COLLIER J Date of judgment: 21 August 2020 Catchwords: PRACTICE AND PROCEDURE – interlocutory application seeking leave to file a notice of contention out of time – rules 1.39 and 36.24 Federal Court Rules 2011 (Cth) – extension of time to file notice of contention – principles of extension of time – explanation for delay – prejudice to appellant – whether grounds in notice of contention meritorious – substantive matter to be determined by the Full Court on the papers – case management orders appropriate to clarify which grounds of appeal pressed – costs of interlocutory application Legislation: Federal Court of Australia Act 1976 (Cth) ss 20A, 37M, 43 Federal Court Rules 2011 (Cth) rr 1.39, 36.24 Safety, Rehabilitation and Compensation Act 1988 (Cth) s 53(3)(c) Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [2009] HCA 27 Chugg v Pacific Dunlop Limited (1990) 170 CLR 249 Cowell v Taylor (1886) 31 Ch D 34 Hooton v Minister for Home Affairs (2018) 264 FCR 517, [2018] FCAFC 142 Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 31 Date of hearing: 18 August 2020 Counsel for the Appellant: Mr M Robertson QC Solicitor for the Appellant: Holding Redlich Counsel for the Respondent: Mr A Berger and Ms K Slack Solicitor for the Respondent: Australian Government Solicitor ORDERS QUD 704 of 2019 BETWEEN: CRAIG LEACH Appellant AND: COMCARE Respondent order made by: COLLIER J DATE OF ORDER: 21 AUGUST 2020 THE COURT ORDERS THAT: 1. The respondent be granted an extension of time until 4.00 pm on 24 August 2020 to file a notice of contention in the form of the draft notice of contention annexed as Exhibit FD-1 to the affidavit of Fiona Dempsey sworn 10 August 2020. 2. Orders 4 and 6 of the Orders dated 7 July 2020 be vacated. 3. By 4.00 pm on 31 August 2020, the appellant file and serve on the respondent: (a) any submissions in reply of not more than 10 pages and in accordance with Section 5 of Practice Note APP2, including confirmation that all written submissions previously filed by him relate exclusively to the grounds of appeal pressed, or to otherwise identify any previously filed written submissions no longer relied on by the appellant; and (b) an affidavit annexing: (i) a tracked copy of the notice of appeal, reflecting the grounds of appeal pressed or otherwise abandoned; and (ii) a "clean" version of the document referred to in Order 3(b)(i) of these Orders, with tracked changes accepted. 4. By 4.00 pm on 7 September 2020, the appellant file and serve on the respondent a copy of Part C of the Appeal Book which (in accordance with Practice Note SMIN-3), must: (a) be filed electronically and not be reproduced in hard copy; (b) include an index which contains an individual hyperlink to each document included in the index; (c) comprise only PDF documents which: (i) are in native format, or, where impracticable to be provided in that form, scanned and in PDF text searchable (OCR) format; (ii) include appropriate bookmarks; and (iii) include as the file name the corresponding tab number in the index followed by sufficient descriptor of the document or authority (for example "01.Notice of Appeal.pdf"); and (d) be consecutively numbered, starting from the first page of the document and excluding the filing covering page. 5. Costs of and incidental to the interlocutory application filed on 10 August 2020 be costs in the cause. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT COLLER J: Background 1 In accordance with case management orders made on 7 July 2020, the appeal to the Full Court of this Court in Leach v Comcare QUD704/2019 is currently listed for determination on the papers, with judgment to be reserved on 21 September 2020, after all procedural steps have been completed. The notice of appeal was filed by the appellant, then a litigant in person, on 13 November 2019. 2 Pursuant to its interlocutory application filed on 10 August 2020, the respondent, Comcare, now seeks leave of the Court to file and serve a notice of contention. Comcare also seeks that the costs of the application be in the cause. 3 Rule 36.24 of the Federal Court Rules 2011 (Cth) provides: 36.24 Notice of contention If a respondent does not want to cross‑appeal from any part of a judgment, but contends that the judgment should be affirmed on grounds other than those relied on by the court appealed from, the respondent must, within 21 days after the notice of appeal is served, file a notice of contention, in accordance with Form 124. 4 In circumstances where the notice of appeal was filed on 13 November 2019, the respondent's interlocutory application seeking leave to file its notice of contention was clearly filed several months out of time. Rule 1.39 of the Rules empowers the Court to extend or shorten a time fixed by the Rules, including after the time has expired. 5 The appellant opposed an order granting the respondent leave to file a notice of contention out of time. 6 Relevantly, on 7 July 2020, I made the following orders: 3. By 4.00 pm on 7 August 2020, the respondent file and serve on the appellant: (a) an outline of submissions of not more than 20 pages, and otherwise in accordance with Section 5 of Practice Note APP2; and (b) a list of materials to be included in Part C of the Appeal Book. 4. By 4.00 pm on 21 August 2020, the appellant file and serve on the respondent any submissions in reply of not more than 10 pages and in accordance with Section 5 of Practice Note APP2. … 6. By 4.00 pm on 28 August 2020 the appellant file and serve on the respondent a copy of Part C of the Appeal Book… 7 In support of its interlocutory application, Comcare filed an affidavit sworn by its lawyer, Ms Fiona Dempsey. An unsworn version of that affidavit was filed on 10 August 2020 (as permitted by the Special Measures Information Note SMIN-1). A sworn version of that affidavit was filed on 11 August 2020. Relevantly, Ms Dempsey deposed: 4. On 16 October 2019, Reeves J handed down the decision in Leach v Comcare [2019] FCA 1698. On 25 November 2019, I wrote to the appellant indicating that while the respondent understood he had filed a Notice of Appeal, a sealed copy had not yet been served. On 28 November 2019, the appellant served a copy of the sealed Notice of Appeal. 5. On 10 December 2019, I was contacted by Caitlin Murdock of Holding Redlich who advised that the appellant was now represented. Ms Murdock included correspondence from the court which relevantly asked if the respondent was proposing to file any interlocutory application(s), notice of contention or notice of cross-appeal in this matter. 6. On 11 December 2019, my colleague, Henry Chang briefed Andrew Berger and Kate Slack as Counsel in this matter (counsel). On the same day, Mr Chang spoke to Ms Murdock asking about whether an Amended Notice of Appeal would be filed by the appellant, as he was now represented. Ms Murdock indicated that while they had not spoken to the appellant about this particular issue yet, they had anticipated that this was something that they would seek timetabling directions about. 7. On 13 December 2019, Mr Chang responded to the Court on behalf of the respondent stating that, at that time, the respondent had no present intention to file any interlocutory applications, notice of contention or cross-appeal but that the respondent may seek to file an interlocutory application depending on whether an amended notice of appeal is filed by the appellant, as the appellant was self-represented when the Notice of Appeal was originally filed. 8. On 16 December 2019, the Court made timetabling orders for the matter to be listed for a hearing before the Full Court. On the same day, correspondence was exchanged between the parties about an extension of time in relation to the timetabling orders where Ms Murdock indicated that the appellant had engaged Senior Counsel and that the appellant should be in a position to know before Christmas 2019 about whether amendments are likely to be made to the Notice of Appeal. 9. On 2 March 2020, the Court listed the matter for a 1 day hearing on 14 May 2020. On 1 April 2020, the Court wrote to the parties advising that due to COVID-19, absent a compelling reason, the Court proposed to vacate the hearing date and to relist the matter or, with the consent of the parties, determine the matter on the papers. 10. Between 2 and 3 April 2020, the parties exchanged correspondence about whether it would be appropriate for the matter to be heard on the papers. In that correspondence, the appellant was asked to confirm whether he would be seeking leave to file an amended Notice of Appeal and, if so, when a proposed amended Notice of Appeal would be provided to the respondent. 11. On 7 April 2020, the appellant confirmed that an Amended Notice of Appeal would not be filed and that the appellant was not pressing various matters raised in the Notice of Appeal. 12. On 24 April 2020, the parties wrote to the Court with proposed consent orders to enable the matter to be determined on the papers. Further correspondence was exchanged between the parties and the Court and timetabling orders were made by the Court on 8 July 2020. 13. On 8 July 2020, the appellant served a copy of their sealed outline of submissions. 14. Pursuant to the Orders of 8 [sic] July 2020, the respondent's outline of submissions was due to be filed and served by 7 August 2020. 15. On 30 July 2020, in the course of preparing the respondent's outline of submissions, counsel notified AGS that a Notice of Contention may be required. 16. On 3 August 2020, counsel provided oral advice that they had not appreciated that a Notice of Contention may be required when they had first considered their briefs but after considering the appellant's written submissions and the issues they raised in detail it became apparent to them that such a notice may be required. 17. On 4 August 2020, AGS received instructions from the respondent to make an interlocutory application seeking an order that the respondent have leave to file and serve a Notice of Contention. 18. A draft Notice of Contention is annexed to this affidavit and marked "FD-1". 19. The respondent does not need to rely on further evidence to make out the grounds relied upon in the draft Notice of Contention. The appeal book filed by the appellant on 24 February 2020 contains all of the materials needed to resolve the issue raised by the draft Notice of Contention. 8 Other than in respect of paragraph [16] of this affidavit, I understand that this evidence is uncontentious. 9 The notice of contention on which the respondent seeks to rely is in the following terms: GROUNDS RELIED ON: 1. The Tribunal's conclusion, in [72] of its Reasons for Decision (the Tribunal's reasons), that the appellant had given answers in cross−examination that are not consistent and did not positively satisfy the Tribunal that the appellant had not been advised by Ms Jacob of his right to then make a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) was open to it, in light of the following answers the appellant gave in cross−examination: 1.1. The following answers he gave in relation to his ability to remember precisely what was said in consultations with Ms Jacob in 1996 and 1997: Do you accept that it would be difficult for you to recall precisely what was discussed with Ms Jacob 20 years ago? −−− Yes, precisely it would be, yes. And it would also be difficult to recall what even happened in some of those, or in all of those sessions? −−− I have a good memory of that, because it was something I never wanted to ever be in a situation where I had to see a psychologist. Well, you've said yourself that you were experiencing psychological symptoms at that time? −−− In hindsight, yes. They may have impaired your ability to remember precisely what was said? −−− Precisely, yes. 1.2. his answer that 'It's possible that she [Ms Jacob] could have done that [told him he was able to lodge a Comcare claim] but she didn't (see the Tribunal's reasons at [67]); and, 1.3. his answer that Ms Jacob had definitely not' told him that he was experiencing symptoms and was able to lodge a Comcare claim (see the Tribunal's reasons at [67]). 2. Whilst the primary judge's reliance, in [28] of his Reasons for Judgment, on the principle established by Chugg v Pacific Dunlop Limited (1990) 170 CLR 249 was inapt: 2.1. his Honour's conclusion (at [28]) that the appellant bore the onus of establishing the facts necessary to establish that the exception in s 53(3)(c) of the SRC Act existed, was correct; and 2.2. the Tribunal's conclusion (in [75]−[76] of the Tribunal's reasons) that the decision under review should be affirmed because there was no cogent evidence that the exceptions in s 53(c) of the SRC Act are satisfied did not involve any error of law. Submissions of the parties 10 In the present case, the respondent submitted, in summary, that: It had not filed a notice of contention earlier because there was a suggestion that the appellant might seek to file an amended notice of appeal once he acquired legal representation; There was no confirmation by the appellant that he would not seek to file an amended notice of appeal until on or around 7 April 2020; It is appropriate that all issues relevant to the lawfulness of the Tribunal's decision be considered and determined by the Full Court and it was in the interests of justice that the respondent be able to raise the two issues in the notice of contention; The initial review of the matter by Counsel for the respondent did not reveal what was apparent from the submissions and authorities relied upon by the appellant. It was not until after the appellant had served his submissions on 8 July 2020 that Counsel for the respondent, in preparing the respondent's submissions, realised that the way the grounds of appeal were articulated in the appellant's submissions gave rise to the need for the notice of contention; and There was little prejudice to the appellant in circumstances where: the appellant had had their submissions, which squarely raised the issues in the notice of contention, for at least 10 days; the appellant's reply submissions were not yet due and the appeal book was yet to be finalised; and, the final hearing, whether on the papers or orally, was over four weeks away. 11 The appellant opposed the Court granting leave to the respondent to file and serve a notice of contention out of time because, inter alia: No reasonable explanation has been given by the respondent for the delay in filing the notice of contention; An order granting leave would be contrary to principles of efficiency recognised in s 37M of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) and the decision of the High Court of Australia in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [2009] HCA 27; It is incumbent upon a respondent to review the decision of the primary Judge and the notice of appeal, and determine upon those documents alone whether a notice of contention is required. Further, the Court had requested the view of the parties as to whether the matter could be justly determined on the papers, which required the parties, at that time, to give serious consideration to their case and what it entailed. The respondent has not satisfactorily explained why it was not apparent to it, at that time, in light of the primary decision and the notice of appeal, that the matter was more complex than it had previously apprehended; It is apparent from the affidavit in support of the respondent's interlocutory application that matters did not occur to the respondent until it had read the appellant's submissions, which did not extend beyond the grounds in the notice of appeal; This was a simple case involving the binary question of whether a file note of a third party who is not a witness can itself be probative evidence from which a finding of fact of the state of mind of the appellant could be inferred, and Comcare was now seeking to complicate the matter; On the current case management Orders, the respondent was presently entitled to judgment after his submissions in reply were filed on 21 August 2020. The late application for the filing of a notice of contention was prolonging proceedings that were almost at an end. The position of the respondent is that, if its notice of contention is filed, an oral hearing of the proceedings may be warranted. This potentially prejudices the appellant, who is impecunious, and would subvert the case management procedures ordered by the Full Federal Court. Consideration 12 In my view, it is appropriate to grant leave to the respondent to file its notice of contention, notwithstanding that it is out of time by several months. 13 In considering whether to permit a late notice of contention to be filed, the Full Court in Hooton v Minister for Home Affairs (2018) 264 FCR 517, [2018] FCAFC 142 had regard to: Whether there was a reasonable explanation for the delay in filing the notice of contention (at [72], [75]); The merits of the proposed grounds in the notice of contention and whether there was sufficient substance in the grounds of the notice of contention to warrant an extension of time (at [73], [77]); and Prejudice to the appellant (at [74] and [75]). 14 In my view similar principles are relevant in this case. 15 I am satisfied that the respondent has provided a reasonable explanation for its delay in seeking to file a notice of contention. While there is no explanation of substance offered by Comcare for the delay of one month between its receipt of the appellant's submissions, and the filing of the present interlocutory application, nonetheless, in circumstances where it is not in dispute that there was a prospect that the appellant would amend his notice of appeal after review by his legal counsel, it is not surprising that the respondent would delay filing a notice of contention until at least after the appellant had confirmed in April 2020 that he did not intend to amend the notice of appeal. 16 Further, the respondent submits, in summary, that it did not fully appreciate the nature of the appellant's claims in his appeal until after receipt of the appellant's submissions. In my view this is an acceptable position for the respondent to take. I note a broadly similar explanation of equal merit to that offered by the respondent was accepted by the Full Court in Hooton at [72], [75]. 17 In respect of the merits of the grounds raised in the notice of contention: The respondent does not seek to vary the primary Judge's orders, but seeks to uphold his Honour's decision on different grounds, thus a notice of contention is the appropriate application (see Hooton at [75]); Evidence of Ms Jacob and the appellant at the Tribunal hearing (to which the respondent referred in its notice of contention) was relied on, in some detail, by the appellant in his submissions served on 8 July 2020 and appears to be central to aspects of the appellant's case; and Questions concerning the correct onus to be applied, and whether the primary Judge erred in this respect, also appear to be central to the appellant's case, and it is appropriate, and in the interests of justice, that the respondent be able to fully argue this issue before the Full Court. 18 In relation to whether the late filing of the notice of contention would prejudice the appellant, I consider that no prejudice has been demonstrated by the appellant. I take this view in circumstances where: The notice of contention is itself responsive to issues raised by the appellant in his written submissions. Evidence of Ms Jacob and the appellant at the Tribunal hearing are clearly known to the appellant, thus grounds in the notice of contention referable to that evidence would not take the appellant by surprise. The ground in the notice of contention relating to Chugg is responsive to the written submissions of the appellant in relation to onus of proof. Current case management orders contemplate that the appellant should file and serve submissions in reply to those of the respondent. As I indicated at the recent case management hearing, as matters presently stand it is appropriate to vacate existing timetabling orders referable to the filing of submissions and the appeal book by the appellant. However, the resultant amendments to the current timetabling orders will not be significant, and properly accommodate the requirements of the appellant to prepare his submissions in reply and file the appeal book. I am not persuaded that the authority of Aon, on which the appellant relies, in the present circumstances is apt. Relevant facts are markedly different between the present circumstances and those in Aon, including the fact that in this case the appellant continues to have an opportunity to reply in submissions to the respondent's notice of contention and supportive submissions. Unlike in Aon, this is not a case where the hearing has already commenced. Indeed, as matters currently stand, the appeal will not be reserved until late September 2020. Counsel for the appellant submitted that any revision by the Court of its stance on the matter being determined on the papers would be prejudicial to the appellant, who is impecunious. However: (a) I note that, as a general rule, hearings are conducted by way of oral submissions rather than on the papers. Section 20A of the Federal Court Act empowers the Court to determine matters on the papers if satisfied, inter alia, that the legal argument in relation to the matter could be dealt with adequately by written submissions. (b) A key reason for determination of this matter on the papers was the acceptance by the parties, in April 2020 shortly after the outbreak of the current COVID-19 pandemic in Australia, that the appeal could be so determined. It is open to the Court to revise that position and order an oral hearing in light of the use of Microsoft Teams, which has facilitated the continuation of oral hearings by the Court throughout 2020. (c) Even if the appellant is impecunious as submitted by his Counsel, this in itself is not a reason for the Court to refuse to order an oral hearing, should such a hearing be the most efficient method by which the Court can receive submissions and examine all issues in dispute. This is particularly the case in an appeal, where the proceedings have already been the subject of decision by this Court. In respect of prejudice potentially occasioned to an appellant in light of his impecuniosity, I note, by analogy, such authorities as Cowell v Taylor (1886) 31 Ch D 34 at 38. 19 It follows that the appropriate order is to grant leave for the notice of contention to be filed. Other matters 20 A number of additional matters, however, warrant consideration. 21 First, there is the issue of costs. The appellant sought its costs occasioned by the respondent's interlocutory application, on an indemnity basis, including the case management hearing before me and any oral hearing of the appeal necessitated by the filing of a notice of contention. 22 The respondent submitted that the ordinary price to be paid for seeking an indulgence from the court is to pay the opposing party's costs that have been thrown away. However, the respondent also submitted that it was difficult to see what work of the appellant would be rendered futile or unnecessary as a result of the notice of contention as the respondent's case has only been added to, rather than altered, and the appellant has not yet had to reply to that case. 23 As matters stand, the appellant has not identified any costs referable to preparation for the substantive proceedings which it has thrown away, or will throw away, in light of the respondent's success in this interlocutory application. In my view, an order for costs in favour of the appellant on an indemnity basis is not warranted pursuant to s 43 of the Federal Court Act, particularly in circumstances where the respondent has substantiated its case for an extension of time to file its notice of contention. The more appropriate order is that costs of and incidental to the interlocutory application be in the cause. 24 Second, the parties raised the issue of whether the Full Court will require them to appear to make oral submissions. The respondent noted three issues emerging from the appellant's submissions and its notice of contention that have complicated the appeal and may warrant an oral hearing, namely: (1) The appellant seeks the exercise of the "slip rule" in his favour on a basis with which the respondent takes issue, and the Court may wish to discuss this with the parties; (2) The notice of contention seeks to agitate the evidence the appellant gave before the Tribunal and the context surrounding that evidence; and (3) The appellant contends in submissions that the primary Judge erred in relation to the proper onus to be applied and therefore issues arise in relation to a legal onus compared to a practical onus, the authorities that consider the types of onus, and whether any error by the primary Judge in relation to this could invalidate the Tribunal's decision. 25 In light of those issues, Counsel for the respondent submitted that the Full Court may benefit from an oral hearing. However, the respondent indicated that it would not be in a position to inform the Court of its view in this respect until after receipt of the appellant's submissions in reply. 26 Counsel for the appellant indicated that he was currently relying on the respondent's evaluation of the need for an oral hearing, and the appellant had not yet formed his own view as to the need for an oral hearing. 27 Pursuant to current case management orders, by early September 2020 the appellant will have filed his written submissions in reply and the appeal book. At that point, the members of the Full Court will give consideration to whether an oral hearing is desirable. Chambers will notify the parties prior to 21 September 2020. If necessary, the matter will be recalled for further case management orders. 28 Third, I note that the appellant has not sought to amend his notice of appeal. However, I also understand from submissions of Counsel for the appellant during the case management hearing that the appellant is not pressing all the grounds of appeal in the notice of appeal (transcript p 9 ll 35-43). It is unclear to me precisely which grounds in the notice of appeal are pressed, and which grounds of appeal are (in the words of Counsel for the appellant) "jettisoned". It may be that the respondent is aware, through correspondence, of grounds which the appellant proposes to, or has, abandoned, but insofar as I am aware, no formal notification has been provided to the Court in submissions or otherwise. In my view this issue requires urgent clarification, particularly in circumstances where the matter is currently to be determined on the papers, and the Full Court will not have the benefit of an oral hearing with the opportunity to ask questions of Counsel in open Court clarifying such an important issue. 29 Accordingly, I will also direct the appellant to file and serve an affidavit annexing a tracked copy of the notice of appeal, reflecting the grounds of appeal pressed or otherwise abandoned. The appellant should further annex to that affidavit a "clean" copy of that document. It is reasonable for the appellant to file and serve these documents contemporaneously with his submissions in reply. 30 I will also direct the appellant in his submissions in reply to confirm that all written submissions filed by him relate exclusively to the grounds of appeal pressed, or to otherwise identify any written submissions no longer relied on by him. 31 Finally, in circumstances where present programming orders have been interrupted by the current interlocutory application, it is appropriate to formally vacate orders 4 and 6 of 7 July 2020, and reissue those orders with advanced dates. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier. Associate: Dated: 21 August 2020