Cooper v Comcare [2002] FCA 788

Cooper v Comcare [2002] FCA 788

The applicant's proposed appeal was foredoomed to fail because the Tribunal's finding that the impairment of his lower back became permanent prior to 1 December 1988 was a finding of fact supported by evidence and not shown to involve an error of law. That finding engaged the rule in Comcare v Levett (1995) 60 FCR 14, which precluded the applicant from obtaining lump sum compensation under ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the lower back injury. Given the absence of merit, the extension application was frivolous and the respondent's motion to dismiss should be granted.

Jurisdiction
Australia
Judgment Date
20 June 2002
Procedural Posture
Application for Extension of Time to File and Serve a Notice of Appeal From an Administrative Appeals Tribunal Decision; Respondent's Motion to Dismiss / Federal Court of Australia, Western Australia District Registry, Before RD Nicholson J
Outcome
Respondent's motion allowed; applicant's application for an extension of time dismissed; no order as to costs.
Legal Topics
['extension of Time to Appeal From Administrative Appeals Tribunal' 'appeal on a Question of Law' 'permanent Impairment' 'lump Sum Compensation' 'frivolous Proceedings']
['administrative Law' 'commonwealth Employees Compensation'] ['extension of Time to Appeal From Administrative Appeals Tribunal' 'appeal on a Question of Law' 'permanent Impairment' 'lump Sum Compensation' 'frivolous Proceedings']

Case Brief

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Procedural Posture

Application for Extension of Time to File and Serve a Notice of Appeal From an Administrative Appeals Tribunal Decision; Respondent's Motion to Dismiss / Federal Court of Australia, Western Australia District Registry, Before RD Nicholson J

Legal Issues

  1. 1 ['Whether time should be extended under s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) for an appeal from the Tribunal decision given on 8 October 1999.' "Whether the proposed appeal had sufficient merits where the Tribunal found that the applicant's lower back impairment became permanent prior to 1 December 1988." "Whether the Tribunal's findings of fact could be challenged on an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth)." "Whether the respondent's motion to dismiss the extension application as frivolous should be allowed."]

Ratio Decidendi

The applicant's proposed appeal was foredoomed to fail because the Tribunal's finding that the impairment of his lower back became permanent prior to 1 December 1988 was a finding of fact supported by evidence and not shown to involve an error of law. That finding engaged the rule in Comcare v Levett (1995) 60 FCR 14, which precluded the applicant from obtaining lump sum compensation under ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the lower back injury. Given the absence of merit, the extension application was frivolous and the respondent's motion to dismiss should be granted.

Court Disposition

Respondent's motion allowed; applicant's application for an extension of time dismissed; no order as to costs.

Orders

  • ["The respondent's motion to dismiss the applicant's application for an extension of time to file and serve a notice of appeal be allowed." "The applicant's application for an extension of time to file and serve a notice of appeal from the Administrative Appeals Tribunal decision given on 8 October 1999 be...