Lovell v K & S Freighters Pty Ltd

The legislation 13 Sections 44(1) and (2A) of the AAT Act provide: 44 Appeals to Federal Court of Australia from decisions of the Tribunal Appeal on question of law (1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. … When and how appeal instituted (2A) An appeal by a person under subsection (1) or (2) shall be instituted: (a) not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is given to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows; and (b) in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976. 14 The procedure for making an application for an extension of time is set out in r 33.13 of the Federal Court Rules 2011 (Cth) (FCR): 33.13 Application for extension of time to start appeal (1) A person who wants to apply for an extension of time within which to start an appeal mentioned in section 44(2A) of the AAT Act must file an application, in accordance with Form 67. (2) The application must be accompanied by the following: (a) the decision from which the appeal is to be brought; (b) the reasons for the decision, if published; (c) an affidavit stating: (i) briefly but specifically, the facts on which the application relies; and (ii) why the appeal was not filed within time; (d) a draft notice of appeal that complies with rule 33.12.

Principles 15 The principles relating to the grant of an extension of time within which to file a notice of appeal are well-settled. The Court has a broad discretion as to whether or not to grant an extension of time and the factors that the Court takes into account include the following: (a) The length of the delay; (b) The applicant's explanation for the delay; (c) The prejudice, if any, that will be suffered by the respondent if leave to appeal out of time is granted; and (d) The merits of the proposed appeal. Xardia v Comcare [2015] FCA 98 at [6] (Nicholas J). See also Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348-9, (Wilcox J).

Documents relied upon 16 At the request of the parties, this application was determined on the papers. 17 The applicant relied upon his affidavits affirmed: 4 November 2022; 18 November 2022; two affidavits affirmed 7 December 2022; 16 January 2023 and 9 March 2023. A number of the affidavits annexed documents directed at the evidence before the Tribunal. One of the affidavits affirmed 7 December 2022, set out a critique of what is contended to be findings by the Tribunal which are wrong and evidence said to contradict those findings. 18 The applicant annexed to his application, a draft notice of appeal which identifies three matters described as questions of law and one question of fact. 19 The respondent relied upon an affidavit of Jack Marshall sworn 6 March 2023 and its written submissions.

The parties' submissions and consideration 20 The respondent opposes the application on five grounds: (1) The applicant has not demonstrated that there is an acceptable reason for his delay in lodging his appeal in the initial period between 2 - 30 September 2022; (2) It is not fair and equitable to extend time in view of the chronology of events between 2 - 30 September 2022; (3) The applicant did not take any action to notify the respondent he was intending to appeal the Tribunal decision until 6 February 2022 [sic 2023]; (4) The respondent is prejudiced in the form of uncertainty as to the outcome as a result of the applicant's delay; and (5) None of the questions of law in the draft notice of appeal are, in fact, questions of law but challenges to findings of fact based on evidence that was before the Tribunal or a mischaracterisation of the Tribunal's decision;

Ground 1: Delay during September 2022 and no acceptable reason 21 In his affidavit affirmed 4 November 2022, the applicant deposes at [5]-[11] that: (a) He received a copy of the Tribunal written decision and reasons on 2 September 2022; (b) He understood he had until 30 September to institute an appeal; (c) The solicitors he had retained before the Tribunal agreed to assist him in an appeal to this Court from the Tribunal's decision; (d) His solicitor went on leave for two weeks; (e) On 26 September 2022, he received an email from his solicitor's office advising him he needed to sign a costs agreement. He signed the agreement that day; (f) On 28 September 2022, he received an email from his solicitor informing him he was no longer going to represent him in the appeal; (g) On 30 September 2022, he attended his solicitor's office to collect his file to try and prepare the appeal himself; and (h) He suffered a heart attack on 2 October 2022. 22 No issue is taken by the respondent as to the delay between 30 September 2022 and 4 November 2022. 23 The respondent submits the applicant has failed to provide an adequate explanation for the delay in pursuing the appeal between 2 September 2022 and 30 September 2022. It submits: (a) There is no evidence the applicant's solicitor was on leave; (b) That on an unknown date but following his solicitor's return from leave, the applicant's solicitor sent the applicant a text message and an email asking him to contact him, however there is no evidence that he did so; (c) On 24 September 2022 the applicant's solicitor sent an email to the applicant concerning the retainer of counsel, but there is no evidence as to whether the applicant contacted his solicitor in response to that email; (d) The reason it took the applicant until 26 September 2022 to sign the costs agreement is not fully explained. 24 It is for these reasons that the respondent submits it is not known what steps, if any, the applicant took between 2 September 2022 and 30 September 2022 to institute an appeal so that the reason for the delay is unexplained. 25 I accept that there are a number of unexplained gaps in the chronology between 2 September 2022 and 30 September 2022, however ultimately the applicant had taken steps to retain his solicitor for the purposes of this appeal, the solicitor went on leave shortly after he was retained and then just prior to the expiry of the appeal period, informed the applicant that he was unable to act for him any further. That was followed by the applicant suffering a heart attack on 2 October 2022. 26 There is no issue that the applicant has to provide a credible explanation for the delay as one of the factors to be taken into account in considering whether the Court should exercise its discretion to extend time. I do not consider the reason for any lack of action on the part of the applicant between 2 September 2022 and 30 September 2022 as being unexplained. On the contrary, the applicant has explained that he took steps to retain solicitors for the purposes of the appeal and was not informed by his solicitor that he would no longer act for him until 28 September 2022. 27 I am satisfied the applicant's description of what occurred explains why no appeal was instigated prior to 30 September 2022 and that his reasons provide a credible and acceptable reason for the delay.

Ground 2: It is not fair and equitable to extend time 28 Relying on the chronology, the respondent submits it is not fair and equitable to extend time. 29 The submission is a bare submission without any detail. It is for the reasons I have set out above in relation to the period between 2 September 2022 and 30 September 2022 that I do not accept that submission.

Ground 3: No action to notify the respondent he was intending to appeal the Tribunal decision until 6 February 2022 [sic 2023] 30 As I understand the submission, it is directed at what action the applicant may have taken in contesting the decision otherwise than by appeal. If that is correct, there is no other action the applicant could have taken. 31 Alternatively, if it is simply a failure by the applicant to notify the respondent of his intention to appeal until 6 February 2023, it is a bare submission and it is not apparent to me what the purpose is behind that submission. Taken by itself, I do not consider a failure by the applicant to notify the respondent of his intention to appeal is decisive.

Ground 4: The respondent is prejudiced in the form of uncertainty 32 The respondent makes another bare submission that it has suffered prejudice in the form of uncertainty. 33 The prejudice is not identified although the prospect of any appeal such that the litigation continues necessarily involves some prejudice. Absent any other submission or any evidence as to prejudice, I do not accept that submission.

Ground 5: No questions of law in the draft notice of appeal 34 The respondent submits there is no merit in the draft notice of appeal with none of the three questions described as questions of law being, in fact, questions of law. 35 There is also a question described as a question of fact in the draft notice of appeal. That is not a matter able to be raised on appeal: s 44(1) AAT Act. I would not grant an extension of time to file a notice of appeal which includes this question. 36 The remaining three grounds, described as questions of law are: (1) Did the Tribunal fail to take into account a relevant consideration, being that not all of the respondent's trucks were identical? (2) Did the Tribunal take into account an irrelevant consideration in considering the client's [sic applicant's] unrelated leg injury? and (3) The Member was in error by placing complete reliance on the video demonstration of the razor motor and therefore failed to consider other relevant evidence.

First question - Did the Tribunal fail to take into account a relevant consideration, being that not all of the respondent's trucks were identical? 37 It is not always easy to distinguish between a question of law and a question of fact. Sometimes questions may be mixed questions of law and fact. 38 Section 44 is not limited to what has been described as a "pure question of law": Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315, [131], [162]. 39 It is well-settled that it is an error of law to fail to take into account a relevant consideration: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 40 (Mason J); Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 179 Martincevic v Commonwealth (2007) 164 FCR 45 at [59]; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ). 40 This first question assumes an error of fact, ie that not all of the respondent's Prime movers and trailers were identical. 41 In reasons [40], the Tribunal records that: Evidence was also given that the set-up of the prime movers and the trailers was identical on the new fleet at the relevant time for the commencement of this work in about October 2018 to the time of the Applicant's dismissal. 42 It is clear that the Tribunal has accepted that evidence because in the next paragraph of the reasons at [41] the Tribunal concludes that razor motors would fail in the time leading up to the termination of the applicant's employment and that drivers would have to wind the razor motor manually. 43 At [64], the Tribunal records it did not accept the applicant's evidence that the trailer he operated was different to those shown in a video given in evidence before the Tribunal which showed that the applicant's Prime mover (and trailer - see reasons [40]) was identical to seven other Prime movers and trailers purchased new for the purposes of the contract. 44 The respondent submits that the Tribunal considered and rejected the applicant's evidence that the trailer he operated was different to other Prime movers and trailers used by the respondent on this particular contract. 45 I accept the respondent's submission. 46 The first question in the draft notice of appeal is not a question of law but a challenge to a finding of fact. 47 It is clear that the Tribunal did not fail to take into account a relevant consideration but considered and rejected the applicant's evidence that the Prime mover and trailer he operated was different from others. 48 I would not grant an extension of time to file a notice of appeal which includes this question.

Second question - Did the Tribunal take into account an irrelevant consideration in considering the client's [sic applicant's] unrelated leg injury? 49 The respondent submits the Tribunal did not take into account an unrelated leg injury. It refers to the Tribunal's reasons at [73]-[96] in which the Tribunal considered in detail an accident the applicant had at his home, on or about 9 November 2018, where part of the deck at his home broke and his foot went through it. 50 The Tribunal referred to the notes of the applicant's general practitioner which apart from recording the applicant complained of pain in the applicant's right leg and lower back following the accident, also notes the applicant complained of right shoulder pain since the accident. 51 The right shoulder is the same shoulder in respect of which the applicant seeks compensation. 52 There is no suggestion that the Tribunal took into account any leg injury suffered by the applicant as a result of an accident which occurred on or about 9 November 2018. Rather, the Tribunal was considering complaints of shoulder pain arising out of that accident. 53 The Tribunal did not, as a matter of fact, take into account an irrelevant consideration and there is no question of law. 54 I would not grant an extension of time to file a notice of appeal which includes this question.

Third question - (was) The Member in error by placing complete reliance on the video demonstration of the razor motor and therefore failed to consider other relevant evidence? 55 The underlying assumption is that the Tribunal failed to take into account all relevant evidence and thereby committed an error of law. 56 There is no dispute that the Tribunal accepted video evidence of the operation of a trailer which was the trailer operated by the applicant. 57 The respondent refers to the Tribunal's decision at [10], [37] [38], [39], [40], [42]-[45], [52], [53], [55], [62], [100] where the Tribunal took into account a range of evidence in relation to the operation of the razor motor and submits the Tribunal did not place "complete reliance" on the video demonstration. It submits that the Tribunal took into account all of the evidence before it and made a number of findings of fact, only one of which was in relation to the operation of the razor motor as demonstrated in the video. 58 The respondent submits that after considering the video footage, the oral evidence of the respondent's witnesses, as well as the applicant's evidence about the operation of the razor motor, it made findings of fact. 59 The respondent's submissions as to what evidence the Tribunal considered in reaching its conclusions as to the razor motor are clearly correct and I accept those submissions. 60 This question, although framed as a question of law, proceeds on a false premise such that it is, in reality, a question of fact, or at best a mixed question of law and fact. A mixed question of fact and law may still be a question of law: Haritos at [62], [110], however the question can only be answered by an inquiry into the facts considered by the Tribunal, a determination of the relevant facts and then the application of the law to those facts, rather than a judicial review of the Tribunal's fact finding. I do not consider the question is a question of law such that it does not fall within s 44 of the AAT Act: Haritos at [169], [192]. 61 I would not grant an extension of time to file a notice of appeal which includes this question.

CONCLUSION 62 In the draft notice of appeal, the applicant seeks to re-agitate matters already determined by the Tribunal. Although the draft notice of appeal identifies three questions which the applicant contends are questions of law, that contention cannot be accepted and the three questions are not questions of law. 63 The application for an extension of time is dismissed. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan.