Lever v Comcare

REASONS FOR JUDGMENT BUCHANAN J: 1 This matter concerns an application for an extension of time to file and serve a notice of appeal from the Administrative Appeals Tribunal ('the AAT'). The application was filed by the applicant on 24 October 2006. 2 It seeks to challenge a decision of the AAT made on 11 September 2006. The application for an extension of time is opposed. 3 Mr Lever attempted to initiate an appeal against the decision of the AAT on 9 October 2006; that is, on the 28th day permitted for an appeal to be brought. Had he used the right procedures on that day, no extension of time would have been necessary. As it happened, he used the wrong form and failed to sign the initiating process. 4 This matter was brought to his attention by the Registry of this Court and in due course he filed his present application. The period of delay thereby occasioned is only a matter of two weeks. I see no real difficulty in excusing him this oversight, particularly as there can be no question of any real prejudice arising to the respondent. 5 Ms Dinnen who appeared for the respondent before me today, however, in opposing the application for extension of time, drew my attention to a judgment of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. In that judgment his Honour distils a number of matters to which attention should be given in evaluating whether an extension of time should be granted. Six matters were referred to by his Honour, including the necessity to be satisfied that it is proper to grant the application, whether an acceptable explanation for the delay has been furnished, whether any prejudice will be occasioned to the respondent and consideration of fairness. In addition, and this was the point which was particularly relied upon to oppose the application for extension, his Honour observed that the merits of the substantial application are properly to be taken into account. It is upon this issue that the respondent focussed the burden of its attention. 6 The criticism made of Mr Lever's process is that it fails to identify with precision the question of law which he seeks to agitate on the appeal. The questions of law said to be raised by the appeal include the proper application of principles stated by this Court in two decisions, Hart v Comcare (2005) 145 FCR 29 and Comcare v Mooi (1996) 69 FCR 439. The way in which the application of those cases arises for consideration is not stated. I accept that there is a lack of precision about the issues which are said to arise from a consideration of these two cases and that is a matter to which attention should be given by the applicant and his legal advisers before the matter proceeds much further. 7 Those two cases proceed upon different lines of reasoning. In Hart v Comcare a Full Court disagreed with the approach taken by the judge in Comcare v Mooi. In the circumstances I am not prepared to conclude that there is not a question of law which might not arise from a consideration of the application of those cases to Mr Lever's circumstances as addressed by the decision of the Administrative Appeals Tribunal. 8 Should it become clear that in fact the appeal which he desires to bring raises no question of law for consideration by this Court, then that is a matter which can be dealt with in connection with the hearing of the appeal, whether by motion challenging the competency of the appeal or at the hearing of the appeal itself.