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[1999] FCA 366
Federal Court of Australia
1999-04-01
Finn J
Original judgment source is linked above.
The Application under the AAT Act 15 I have already set out the essence of Mr Peczalski's explanation such as it is of his delay in applying the appeal. He conceded before me that he could not "give a convincing explanation" of it. Mr Peczalski alleged that in May 1998 he began to suspect that "key documents" leading to the rejection of his claim had been forged or otherwise falsified or tampered with. On 29 June - nearly 3 weeks after Comcare had instituted its Supreme Court claim - he sought (inter alia) those documents from Comcare under s 59 of the SRC Act. Insofar as presently relevant that request was rejected on 21 August on the grounds that the documents sought had previously been supplied to his solicitors and that he could obtain copies from them. 16 On 13 July he obtained a preliminary forensic examination of a photocopy of one of the documents he wishes to challenge. It states insofar as presently relevant. "Re: Preliminary Examination of Photocopy Documents I received for preliminary examination a group of eight photocopies. I directed my attention to one photocopy document headed "SECTION 5 HISTORY OF MEDICAL EXAMINATIONS, ADVICE OR TREATMENTS" and bearing an image of a Department of Health stamp impression with date 17 JUL 1985. Amongst the handwritten entries reproduced on this photocopy page is a sentence which reads "Says he has Never had any back pain in the past". There appears to be significant evidence on this photocopy that the original may have been subjected to alteration and erasure of a previous entry. I would need to examine in the laboratory the original document and associated pages in order to confirm this, and possibly to decipher remnants of the original entry. I could then examine and compare inks and possibly make relative time of writing determinations of the entriey on this and other pages. The original should be minimally handled." 17 Mr Peczalski's first application to this Court was made 4 days later on 17 July 1998. This allegation of falsification of documents is at the centre of his proposed challenge to the Tribunal's decision though it has been enlarged upon to include other documents and allegations of witness tampering as well. Additional, independent grounds have also been propounded. These will be returned to below. 18 Before considering the present application it is necessary to emphasise what is the issue to be decided. It is not whether the Tribunal was in error in its decision - although the merits of the proposed application can properly be taken into account by me. Rather it is whether an extension of time to institute an appeal to this Court should be granted. 19 The principles to be applied in such an application are well known. I need merely state the following and in proposition form.
Conclusion 34 Having regard to all of the above factors I do not consider the case to be an appropriate one in which to grant the extension of time sought. The combination of no convincing explanation of the delay in seeking to appeal, Mr Peczalski's long inaction in the matter, the prospect of prejudice arising from fading recall of events some almost 15 years ago and the slender merits of the proposed appeal, lead to no other conclusion than that the application be dismissed. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.
Associate: Dated: 1 April 1999 Applicant appeared in person
Peczalski
Comcare
The Two Applications 12 As I have noted Mr Peczalski has sought extensions of time, first under the AAT Act and, then, under the ADJR Act. Having invoked the appeal machinery of the AAT Act it is, in my view, inappropriate in the present circumstances for Mr Peczalski to have had resort to the ADJR Act as well. In Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 484 Davies J said that: "As s 44 of the AAT Act provides a specific procedure for the granting of relief by this Court in respect of decisions of the Administrative Appeals Tribunal, that procedure should be adopted. An application brought under s 5 of the ADJR Act, when an appeal under s 44 of the AAT Act is available, should be dismissed as of course." 13 While Davies J's view may be expressed somewhat more inflexibly than is necessary or appropriate: cf Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314 at 316; it encapsulates a sound principle to be followed when, as here, a s 44 application has been instituted and that application makes adequate provision for the review of the Tribunal's decisions: cf ADJR Act, s 10(2)(b): see also Chowdhary v Bayne [1999] FCA 41. 14 Accordingly, I will dismiss the application for an extension of time under the ADJR Act.
(1993) 40 FCR 483
(1995) 61 FCR 314
(1992) 37 FCR 571
(1984) 3 FCR 344
(1993) 45 FCR 441
(1983) 151 CLR 288
(1994) 181 CLR 41
(1986) 65 ALR 323