Swanton v Military Rehabilitation and Compensation Commission

APPLICATION FOR AN EXTENSION OF TIME 21 On 28 March 2017 Mr Swanton applied to this Court for an extension of time within which to commence an appeal from the Tribunal's decision under s 44 of the AAT Act. The Tribunal's refusal to extend time under s 29(7) of the AAT Act has been held to be a "decision" within the meaning of s 44(1): see Zizza v Commissioner of Taxation (1999) 55 ALD 451 at 454-455; [1999] FCA 37 at [14] (Katz J). 22 This application was necessary because Mr Swanton was said to be out of time for filing his "appeal" in this Court. Section 44(2A)(a) of the AAT Act provides that any appeal shall be commenced not later than 28 days 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 Court allows. The question thus arises as to when Mr Swanton was "given" a document setting out the terms of the decision. 23 Mr Swanton received a copy of that document from his representative under cover of the letter dated 28 February 2017. Presuming that the letter was posted on Tuesday 28 February 2017, by operation of s 160 of the Evidence Act, it may be presumed to have been received at Mr Swanton's residential address four working days later on Monday 6 March 2017. If this was the first time Mr Swanton had been "given" the document setting out the terms of the Tribunal's decision for the purposes of s 44(2A)(a) of the AAT Act, his application to the Court on 28 March 2017 would have been made within the 28 day time limit. Alternatively, if it can be concluded that Mr Swanton was "given" the document at the time that it was given to his representative, his application will be out of time. 24 When may it be presumed that Mr Swanton's representative was given the letter that was addressed to the post office box in Melton? Section 68(2)(b) of the AAT Act relevantly provides that a document that is "required or permitted" by the AAT Act to be given to a person for the purposes of a proceeding before the Tribunal must be given in accordance with regulations made under that Act. The AAT Act permits a document setting out the terms of a decision of the Tribunal to be given to a person: cf Secretary, Department of Social Security v O'Connell (1992) 38 FCR 540 at 552-553; [1992] FCA 854 at pp 26-27 (Wilcox, French and Lee JJ). Regulation 17(3)(b) of the Administrative Appeals Tribunal Regulation 2015 (Cth) ("the AAT Regulation") is thus applicable. Regulation 17 relevantly provides: 17 Giving documents to a person (1) For subsection 68(2) of the Act, this section prescribes the manner in which a document is to be given to a person for the purposes of a proceeding before the Tribunal. Note: This section does not apply to the extent to which the Act or another enactment specifies how a document is to be given to a person for the purposes of a proceeding before the Tribunal (see subsection 68(3) of the Act). (2) A document is to be given to the person: (a) if the Tribunal has ordered that the document be given in a specified manner - in accordance with the order; or (b) in accordance with subsections (3) to (7) as applicable. Giving documents to a person with address for documents (3) If a person has an address for documents, a document may be given to the person by: (a) leaving the document in a sealed envelope addressed to the person at that address; or (b) sending the document by pre-paid post addressed to the person at that address; or (c) sending the document to a DX address, fax number, email address or other electronic address included in the person's address for documents. … 25 It may, however, be doubted whether s 44(2A)(a) (when read with s 68(2)(b) and reg 17(3)(b)) is a provision which "authorizes or requires" a document to be given by post so as to enable the same "in the ordinary course of post" deeming provision in s 29 of the Acts Interpretation Act 1901 (Cth), earlier referred to, also to apply to this correspondence. This is because s 44(2A) appears instead to be concerned with "the fixing of a date which is determinative of the right of persons" to appeal to the Federal Court (see Secretary, Department of Social Security v Garratt (1992) 109 ALR 149 at 230-231; [1992] FCA 512 at p 17 (Gummow J) approved in O'Connell at 552; cf Kapitany v Commonwealth (2006) 149 FCR 512 at 518; [2006] FCA 111 at [20] (Sundberg J)). Section 43(3) of the AAT Act, which requires the Tribunal to cause a copy of its decision to be given to each party to the proceeding, would (when read with s 68(2)(b) and reg 17(3)(b)) more readily engage s 29(1). However, the MRCC cast some doubt on whether s 43 applies to the Tribunal's refusal to extend time when it submitted that such a refusal is not a decision "affirming", "varying" or "setting aside" the decision under review within the meaning of s 43(1). That submission was made in support of the contention that the Tribunal is not required to give written reasons for its decision pursuant to s 43(2A) and (2B), but the issue it raises also has some bearing on the question presently under consideration. 26 It is, I think, unnecessary to resolve the question as to the application of s 29. Having regard to the documents annexed to Mr Swanton's affidavit, it is apparent that the Tribunal's letter was posted to and received by Mr Swanton's representative. Sections 160(1) and 163(1) of the Evidence Act thus apply. The Tribunal is a "Commonwealth agency" within the meaning of s 163(1) as it is a body exercising power under or because of a law of the Commonwealth, namely the AAT Act: Evidence Act, Dictionary, Pt 1. Having regard to the fact that the Tribunal's letter was dated Thursday 14 July 2016, it may be presumed that the Tribunal posted it five business days later, on Thursday 21 July 2016, and that it was received at his representative's Melton post office box four working days after that, on Wednesday 27 July 2016. There is no evidence about when the document was in fact posted to or received at that address to rebut these presumptions. 27 May it be concluded that because the letter is deemed to have been posted to and received at the address of his representative on particular dates that Mr Swanton is also deemed to have been given "a document setting out the terms of the decision" for the purposes of s 44(2A)(a) of the AAT Act? Put another way, does the Melton post office box address of Mr Swanton's representative, where the Tribunal's letter was sent by post, constitute Mr Swanton's "address for documents" within the meaning of reg 17(3)(b) to which the Tribunal was permitted to send the document to Mr Swanton? 28 Regulation 16(1) provides that "[a]n applicant for review of a decision must give the Tribunal an address for documents when making the application." The phrase "address for documents" is defined in reg 5 as follows: address for documents, for a person: (a) means an address where documents for a proceeding may be posted to or left for the person (and which may also include a DX address, a fax number, an email address or another electronic address); and (b) includes an address the person is taken to have provided under subsection 29(1A) of the Act. 29 Section 29(1A) of the AAT Act states: Address at which documents may be given (1A) If, in an application, a person does not provide an address at which documents in relation to the proceeding may be given, any address of the person shown in the application, or later notified to the Tribunal as an address at which such documents may be given, is taken to be an address provided by the person at which such documents may be given. 30 Neither "person" nor "representative" is defined in the AAT Act or the AAT Regulation. Mr Swanton was required by reg 16(1) to give the Tribunal an "address for documents" when the application for review was made. This was done by indicating on the application form that his postal address was the Werribee Plaza post office box address and by ticking a box that indicated his "preferred method for receiving correspondence" was by post. As earlier mentioned, this form also listed the post office box in Melton as his representative's postal address with an indication that the preferred method of delivery of documents to the representative was by post. The representative's postal address was also an "address for documents" for Mr Swanton to which the Tribunal could send documents consistently with reg 17(3)(b) of the AAT Regulation. 31 If the deemed date of receipt by post (being Wednesday 27 July 2016) is the date that Mr Swanton was given the document recording the Tribunal's decision, the last day for a timely application to the Court was 28 days later, namely Wednesday 24 August 2016. Alternatively, if the deemed date of postage (being Thursday 21 July 2016) constitutes the date that he was given the document, the last day for filing an appeal was Thursday 18 August 2016. Whichever date is applicable, Mr Swanton's application to this Court, dated 28 March 2017, was made some seven months later. Under s 44(2B), an extension may be granted if the Court considers that the interest of justice so requires. Rule 33.13 of the Federal Court Rules 2011 (Cth) also provides for extensions of the time in which to appeal from a decision of the Tribunal.

CONSIDERATION 32 The principles which govern the exercise of the Court's discretion to enlarge time for the commencement of proceedings are well settled. They were recently restated by Perry J in Jamal v Secretary, Department of Social Services [2017] FCA 916 at [11]-[12]: 11. The principles relevant to the exercise of discretion to grant an extension of time for an appeal are well established (see e.g. Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349) and may be summarised as follows: (1) An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so. (2) The applicant must show an acceptable explanation of the delay and that it is fair and equitable in the circumstances to extend time. (3) Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time. (4) The merits of the substantive appeal, if leave were granted, are properly to be taken into account. 12. As to the last of these matters, it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and Court, and impact on other Court users: see by analogy in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 (MZABP (FCA)) at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]). In turn, in considering the applicant's prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to "assess the merits in a fairly rough and ready way" (Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9]). In other words, the grounds should be considered on their face and examined at a "reasonably impressionistic level"; the Court should not descend into a fuller consideration of the arguments for and against each ground (see MZABP (FCA) at [62]). See also Gabor v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 706 at [8] (Bromberg J). 33 While an absence of an adequate explanation does not preclude an extension of time being granted under s 44 of the AAT Act, an explanation is normally to be expected: cf Comcare v A'Hearn (1993) 45 FCR 441 at 444; [1993] FCA 811 at p 6 (Black CJ, Gray and Burchett JJ); Mees v Kemp (2005) 141 FCR 385 at 395; [2005] FCAFC 5 at [32] (French, Merkel and Finkelstein JJ); Dent v Australian Electoral Commissioner (2008) 249 ALR 523 at 535; [2008] FCAFC 111 at [48] (French, Tamberlin and Mansfield JJ), citing with apparent approval Peczalski v Comcare (1999) 58 ALD 697; [1999] FCA 366. In Peczalski at 701 [19], Finn J noted this principle from A'Hearn. See also Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 at [20] (Cowdroy J); Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2011) 126 ALD 444 at 294; [2011] FCA 28 at [22] (Cowdroy J); Rahn v Secretary, Families, Housing and Indigenous Affairs [2012] FCA 169 at [11] (Tracey J); Peters v Comcare [2013] FCA 808 at [6] (Bromberg J); Hutchinson v Comcare [2014] FCA 1300 at [16] (McKerracher J); Cremona v Administrative Appeals Tribunal (2015) 65 AAR 313 at 314; [2015] FCA 288 at [6] (Bromberg J). 34 Mr Swanton's application for an extension of time to "appeal" to this Court from the Tribunal's decision was made some seven months after the expiry of the prescribed period. The MRCC does not allege any prejudice from this delay which it says cannot otherwise be remedied by the grant of costs in its favour. 35 Has Mr Swanton shown an acceptable explanation for the delay? In an affidavit sworn on 28 March 2017 which he filed in support of the application to this Court he said that the delay was: Due to mail been stolen over a period of time lost also not receiving documation. (Errors in original.) 36 Nowhere did he specifically depose that he, or his representative, had not received the written notice of the Tribunal's decision. On the contrary, he provided a copy of the Tribunal's decision and the covering letter addressed to his representative both dated 14 July 2016 with his affidavit sworn on 28 March 2017. 37 Despite being put on general notice as to the inadequacy of his explanation, by the written submissions of the MRCC filed in advance of the Court's hearing, Mr Swanton did not provide any elaboration of his reasons for delay in approaching the Court. 38 He has not provided any adequate explanation for the lengthy delay. Mr Swanton did not expressly advance the contention that the delay was caused by any shortcomings on the part of his representative and there is insufficient evidence from which I could draw such an inference. Had Mr Swanton made that assertion, it may, depending on the circumstances, have constituted a sufficient explanation: cf A'Hearn at 443. 39 I turn next to the merits of the proposed "appeal" to this Court. Such an appeal lies, under s 44(1) of the AAT Act, "on a question of law". Mr Swanton has not identified any such question. Nevertheless, it is apparent that he considers that the Tribunal erred in not granting an extension of time. 40 Due allowance must be made for the fact that Mr Swanton is an unrepresented litigant and to the principles enunciated by the Full Court in Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315 at 341-342; [2015] FCAFC 92 at [62] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ). In particular the Court is required to have regard to the substance of an application rather than its form. 41 I am prepared to assume, in Mr Swanton's favour, that a question of law can be framed relating to whether the exercise of the Tribunal's discretion under s 29(7) of the AAT Act miscarried. 42 There remains, however, the question of the merits of the proposed appeal. In order to succeed it would be necessary for Mr Swanton to establish that the Tribunal had fallen into an error analogous to the kind identified in House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ). 43 In dealing with Mr Swanton's application to it for an extension of time, the Tribunal was bound to have regard to the same principles which guide the Court in the exercise of its discretion and which are set out above at [32] and [33]. 44 Accepting that the Tribunal is not bound by the Evidence Act (see Evidence Act s 4, Dictionary, Pt 1; AAT Act s 33(1)(c)), it would nevertheless have been entitled to rely on the presumptions raised by ss 160(1) and 163(1) of the Evidence Act and to conclude, in the absence of any other evidence, that Mr Swanton's first application was made some four months out of time and that his subsequent application for an extension of time was made some five months out of time. In those applications, he did not assert that he had not received timely notice of the MRCC's decision. In the application for an extension of time, which had been filed on his behalf by his representative from the Western Suburbs Veterans' Services Centre, the section on "reasons for the application" was completed as follows: Mr Swanton was not sure what he could do. It was only after seeking assistance from local RSL and then me, that he realised he should have submitted his application sooner. Despite being aware of the MRCC's challenge to the adequacy of these reasons prior to the hearing before the Tribunal Mr Swanton did not seek to further explain the delay. In particular, there is no evidence that he sought to justify the delay in circumstances in which he had been advised in writing, by the letter dated 9 November 2015, of the 60 day time limit for the lodging of an application for review to the Tribunal. 45 Moreover, the notification of the MRCC's decision contained detailed reasons for the refusal of his application. They included the facts that the claim was being made some 50 years after Mr Swanton said he had first become aware of his condition and some 30 years after the evidence shows that he sought treatment for asthma, the requirement in the then applicable Commonwealth Employees' Compensation Act 1930 (Cth) (as picked up by s 124 of the SRC Act) that any claim for compensation must be submitted as soon as practicable after the claimant had first noticed the onset of a medical condition, and the absence of any contemporaneous medical evidence that he had suffered from asthma in 1956 or that his asthma condition was related to his service. Again, the solicitors for the MRCC put Mr Swanton on notice, by the letter dated 12 July 2016 sent to his representative, that it would contend, before the Tribunal, that there were no meritorious grounds for the Tribunal to consider. Despite this, there is no evidence that Mr Swanton sought to gainsay these submissions at the hearing before the Tribunal. 46 As a result, it would have been very difficult for the Tribunal to have formed a positive impression about the merits of the proposed application for review. 47 In the absence of published reasons it cannot be known with certainty precisely which factors the Tribunal brought to account when exercising its discretion or the respective weight given to such considerations. Nonetheless, the onus of satisfying the Court at trial that the Tribunal had committed some appealable error of law would fall on Mr Swanton. Having regard to the material that was before the Tribunal, I can and do but conclude that any appeal to this Court would have little or no prospect of success.

DISPOSITION 48 Mr Swanton harbours a strong belief that his asthmatic condition was caused while he was serving in the Army. He was required to sleep on a wooden floor with a straw pillow and was, at times, cold and shivering. He wishes to be compensated for his suffering. He also wishes to assist other ex-servicemen and women who are suffering from asthma as a result of service conditions. I accept that his concerns are entirely sincere. As I sought to explain to him during the hearing, however, the Court is concerned with a narrow legal issue and cannot pass judgment upon the merits of his claims. 49 For the reasons which I have given I am not persuaded that it is in the interests of justice that Mr Swanton's application should be granted. 50 The application must be dismissed with costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.