Case: D&eacute;cor Corp Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397
Outcome: applied
question of the prospects of success of the application for leave to appeal is to be decided in accordance with the well-known judgment of D&eacute;cor Corp Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 at 398 400. The test to be applied in most cases is two-pronged. The Court must be satisfied that the decision in respect of which leave is sought is attended with sufficient doubt to warrant its being reconsidered by an appellate court and that substantial injustice would result if leave were to be refused, supposing the decision to be wrong. The applicant has filed an affidavit in support of her Application. In that affidavit, she has referred to the fact that she suffers a number of mental illnesses. She has also referred to her dealings with an officer of the Court who works in the Registry. She mentioned both of these matters in order to explain the delay between the date when she should have filed her Leave Application and the date when she filed the Application with which I am presently dealing. The delay was a period of some two and a half to three weeks. I am of the view that the applicant has sufficiently addressed the question of delay and that the reasons which she has given provide a reasonable explanation for her failure to lodge her Application for Leave to Appeal within time. In her affidavit, the applicant also seeks to come to grips with the second part of the test articulated in D&eacute;cor 33 FCR 39, that is to say, the prospects of her Application for Leave to Appeal. She asserts that the primary judge denied her procedural fairness. It seems that the basis of this assertion is that his Honour only allowed a very short time to the applicant to secure the services of a lawyer in order to assist her in arguing the application which she had brought before his Honour. The applicant did not provide further evidence in support of her assertion that she was denied procedural fairness. His Honour commenced the hearing of the application before him on 14 August 2009 and adjourned that hearing to 20 August 2009 in order to enable the applicant to secure the services of a lawyer, were she able to do so. In the events which happened, she was unable to do so, although she took advantage of the week's adjournment to furnish further materials to his Honour. There is nothing in the allegation that his Honour failed to accord procedural fairness to the applicant. The other group of matters relied upon by the applicant is to be found in the draft Notice of Appeal which she has annexed to her affidavit in support of the current application. It is extremely difficult to discern any particular point sought to be raised by the applicant by way of appeal. She asserts, both in the draft Notice of Appeal and in her oral submissions made today, that she has been dealt with unfairly. The gravamen of that complaint seems to be that the Tribunal made the wrong decision when it confirmed the Social Security Appeals Tribunal decision to reject the applicant's claim for a crisis payment. Doing the best I can with the text of the draft Notice of Appeal, I can see no other ground raised. The Tribunal had before it a claim for a crisis payment pursuant to s 1061JH of the Social Security Act . The ground for that claim was that the applicant had left, or could not return to, her home because of an extreme circumstance. The essential facts said to underpin that claim were not in dispute before the Tribunal. The Tribunal held that the applicant suffered from psychiatric conditions, including agoraphobia and social anxiety disorder. It noted that she receives a disability support pension and lives in accommodation provided by the New South Wales Department of Housing. On 16 June 2008, the applicant had to leave her home and stay in temporary hotel accommodation that was provided and paid for by New South Wales Housing, whilst it had renovations carried out to the bathroom of her home. She returned to her home on 24 June 2008. She made her claim for a crisis payment in respect of the period from 16 June 2008 to 24 June 2008, on account of the temporary move to which I have referred. During that period, she continued to receive her pension.