Lukac v Linfox Armaguard Pty Ltd

REASONS FOR JUDGMENT 1 Mr Lukac has filed an application for an extension of time to file and serve a notice of appeal from a decision of the Administrative Appeals Tribunal. The decision he wishes to appeal is that of Senior Member McCabe made on 28 August 2009 affirming an earlier decision, the effect of which was to refuse Mr Lukac's claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). 2 Although the discretion to extend time is not restricted to specified criteria, there are certain factors, of varying importance, which a court will take into account. Relevant to Mr Lukac's application, they include his explanation for the delay and the merits of his appeal: see Comcare v A'Hearn (1993) 45 FCR 441 at 444 per the Court; Peczalski v Comcare (1999) 58 ALD 697, [1999] FCA 366 per Finn J at [19]; and Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 ("Budd") at [18] per Cowdroy J. 3 I will deal with these two factors in turn. The starting point for the first factor is to identify what delay has occurred and then what explanation Mr Lukac has offered for that delay. 4 Section 44(2A)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") provides that the time for filing a notice of appeal from a decision of the Tribunal is no later than 28 days after the day on which a document, setting out the terms of the decision, is given to the person. 5 It has been held that this period runs from the date upon which the appellant receives the details of the decision: see Holt v Comcare [2002] FCA 1484 at [37] to [38] per O'Loughlin J. 6 It is far from clear on the affidavit material before me when the Tribunal decision was given to Mr Lukac. There is evidence that an electronic copy of the decision was forwarded to him by the Tribunal Member's associate on 28 August 2009. However, elsewhere in his affidavits, Mr Lukac says he received a hard copy of the Tribunal's decision on either 3 or 4 September 2009. Assuming, in Mr Lukac's favour, that it was the latest of these dates, that would mean that his time to appeal expired on 2 October 2009. 7 In one of his affidavits, Mr Lukac implies that he was waiting to receive further medical evidence before filing his notice of appeal. In his oral submissions before me, he explained that, after not receiving this further medical evidence, he eventually sent his notice of appeal to the Brisbane Registry of the Court on 21 September 2009. To attempt to establish this fact, Mr Lukac annexed to one of his affidavits a registered post receipt dated 21 September 2009. 8 Mr Lukac subsequently received a letter dated 22 October 2009 from District Registrar Ramsey. That letter states in the opening line: "I refer to the Form 55A Notice of Appeal forwarded to the registry for filing". The letter goes on to outline a number of substantive and procedural defects in Mr Lukac's notice of appeal and advises of the steps required to apply for an extension of time to lodge an appeal. 9 Mr Lukac's application for an extension of time was filed on 13 November 2009. This means that, on the most favourable view of these facts, Mr Lukac requires an extension from 2 October 2009 to 13 November 2009, a period of six weeks. 10 Again, it is not clear from Mr Lukac's affidavit material precisely what explanation he is offering for this delay. He appears to place some significance on the fact that he was waiting for further medical evidence before filing his notice of appeal, although he eventually proceeded to file the initial defective notice of appeal without obtaining this evidence. In his oral submissions, he also appeared to place some significance on the fact that he was self-represented although, again, it is difficult to assess how his lack of representation effected any delay because he seemed to be well aware that there was a time limit and that it was due to expire in late September/early October. Finally, there is his claim that he did at least attempt to file a defective notice of appeal before the time limit expired in late September 2009. 11 Despite the lack of clarity in Mr Lukac's explanation for the delay, if there were some merit to Mr Lukac's proposed appeal, given the relatively short period of time involved and the lack of any complaint of prejudice by the respondent, I would have been willing to accept these matters by way of explanation in the circumstances. Which brings me to the second factor - the merits of Mr Lukac's proposed appeal. 12 In more recent times, the importance to be attached to the merits of the substantive proceedings has been downgraded somewhat as a criterion to be taken into account: see Hua-Aus Pty Ltd v Commissioner of Taxation [2009] FCA 743 at [12] per Edmonds J. In Culley v Australian Securities and Investments Commission [2008] FCA 1784 ("Culley"), Jessup J held (at [5]) that: … the court should be slow to reject an application for an extension of time under s 44(2A) of the AAT Act, …, for no reason other than that the appeal, if prosecuted, would be unlikely - even very unlikely - to succeed. 13 However, his Honour did go on to add this qualification (at [6]): While it will be apparent that I do not consider that an application for an extension of time is an occasion for any more than the most cursory examination of the merits of the proposed proceeding, nonetheless I recognise that, if such an examination does reveal the proceeding as being conspicuously devoid of merit, the application might well be rejected upon the ground that the prosecution of it would, in effect, be pointless. 14 Section 44(1) of the AAT Act provides that a party to a proceeding before a Tribunal may appeal to the Federal Court "on a question of law". Accordingly, an appeal under s 44 must identify with precision a pure question of law; this is not merely a qualifying condition to ground an appeal, but also the subject matter of the appeal itself: see Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321, [2003] FCAFC 232 ("Birdseye") at [17] to [18] and Colby Corporation Pty Ltd v Federal Commissioner of Taxation (2008) 165 FCR 133, [2008] FCAFC 10 at [13] to [14]. Furthermore, the jurisdiction of this Court is not enlivened in the absence of such a question of law: see Ibarcena v Secretary, Department of Family & Community Services [2003] FCA 1354 at [4] per Stone J and Budd v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 961 at [9] per Emmett J. 15 Mr Lukac's proposed notice of appeal is as follows: 1. Failure to take into consideration relevant medical statements by doctor's. 2. Failure to take into consideration reading of documents not considered evidence. 3. Failure to take into consideration rule 423d of Dr Alcorn's report. 4. Failure to comply with "Medical Evidence Only" as instructed by S.M. McCabe. 5. Failure to take into consideration a request to render Dr Lovell's report inadmissible. 6. Failure to note without:- affidavits, signed statements, stat dec's, all is hearsay. [Errors in original] 16 On its face, Mr Lukac's proposed notice of appeal does not identify any question of law whatsoever. Instead, he has set out six matters which, in one way or another, seek to take issue with the Tribunal Member's assessment of the evidence. They, therefore, clearly and only, raise questions of fact. 17 It follows that, even on a most cursory examination, Mr Lukac's proposed notice of appeal does not raise any question of law that would enliven the jurisdiction of this Court under s 44 of the AAT Act. It would therefore be futile to grant him an extension of time to file it. 18 For these reasons, I consider I must refuse Mr Lukac's application for an extension of time to file his proposed notice of appeal. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.