Cooper v Comcare

5 The considerations ordinarily applied in determining whether or not to grant leave are well accepted. They are: (i) whether in all the circumstances the decision in question is attended by sufficient doubt as to warrant its being reconsidered by the Full Court; and (ii) whether substantial injustice would result if leave were refused supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

6 Mr Cooper has represented himself in these proceedings as he did before the primary judge. We are in consequence prepared to treat his appeal as if it were an application for leave and, furthermore, we extend the time for his making this application to the date of its hearing. Because of Mr Cooper's late unavailability to present oral argument the presiding judge, last week, directed that written submissions be filed and that the application would be decided on the papers. The Setting of the Application 7 The decision of the Tribunal was premised upon a finding of fact made by it. The finding was that the work-related injury to Mr Cooper resulted in his sustaining a permanent impairment prior to 1 December 1988. It was on that date that the transitional provisions of the SRC Act were proclaimed. Section 124(3)(b) of that Act disentitles a person from receiving a lump sum payment under s 24 of the Act if that person had no corresponding right under (inter alia) the Compensation (Commonwealth Government Employees) Act 1971 (Cth). The latter Act, which was repealed by the SRC Act, applied to Mr Cooper at the time of his injury. 8 It has been held by a Full Court of this Court that nowhere in the 1971 Act is there created an entitlement to compensation as a lump sum for a back injury (save in one circumstance of no present relevance): Comcare v Levett (1995) 60 FCR 14. In consequence of its fact finding the Tribunal made its decision that Comcare was not liable to pay lump sum compensation to Mr Cooper. 9 The principal ground upon which the primary judge based his decisions to dismiss the application for an extension of time to appeal against the Tribunal's decision is that, if an extension of time were granted, the appeal (which challenged the date of his injury/permanent incapacity) would nonetheless be doomed to failure in light "of the rule in Levett's case, brought into operation by the unchallengeable findings of fact of the Tribunal": [21]; emphasis added. The reference to "unchallengeable findings of fact" above related to the earlier conclusion of the primary judge that it was 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. 10 One of the considerations characteristically taken into account in determining whether or not to grant an extension of time is "the merits of the substantial application": Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349. It obviously was with this in mind that His Honour emphasised the significance and consequence of the Tribunal's fact findings. The Present Application 11 The applicant, who has been unable to attend the hearing of his application, has filed written submissions in support of it. As best as one can ascertain from those submissions he seeks to challenge again, as he did before the primary judge, the Tribunal's findings of fact in relation to the time of his injury/permanent incapacity. To this end he alleges that the Tribunal disregarded the second medical report of a doctor, on both of whose reports the Tribunal in fact relied in reaching its conclusion. 12 The respondent has submitted that the primary judge's decision is demonstrably correct and that it does not warrant reconsideration by this Court. 13 In reaching his decision the primary judge quite properly had regard to the substantial application Mr Cooper wished to raise. His Honour clearly was correct, with respect, in concluding that to have granted the leave sought would have been futile as that substantial application would necessarily have failed in light of the Tribunal's fact findings and the applicability of Levett's case in consequence of those findings. At best Mr Cooper's appeal was against the findings so made. The primary judge was again correct in concluding that those findings were open to the Tribunal on the evidence before it. 14 The decision of the primary judge is unexceptionable. It does not warrant reconsideration. Having regard, first, to the Tribunal's reasons and in particular to its fact findings and, secondly, both to His Honour's consideration of what was Mr Cooper's substantial application in the event that an extension was granted, and to his reasons for rejecting the extension, it would serve no useful purpose in granting leave to appeal in the circumstances. The appeal itself, no less so than the original substantial application, would be doomed to failure. 15 Accordingly, the application for leave to appeal should be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice the Court.

Mr J Cooper submitted written argument on his own behalf.

Solicitor for the Respondent: Dibbs Barker Gosling

Date of Last Written Submissions: 11 November 2002

Date of Judgment: 13 November 2002