Aaron O'Connor and Australian Postal Corporation Senior Member A K Britton

[2010] AATA 504

Administrative Appeals Tribunal

INTERLOCUTORY DECISION AND REASONS FOR DECISION [2010] AATA 504

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3740

GENERAL ADMINISTRATIVE DIVISION		)
Re		Aaron O'Connor

Applicant

And Australian Postal Corporation

Respondent

INTERLOCUTORY DECISION

Tribunal Senior Member A K Britton

Date24 May 2010

PlaceSydney

Decision Matter is listed for mediation on 15 August 2010 at a time to be fixed by the Registrar.

..................[sgd].....................

Senior Member A K Britton

CATCHWORDS

PRACTICE AND PROCEDURE - Administrative Decisions (Judicial Review) Act – written reasons to a decision - decisions to which Act applies - meaning of “decision” - substantive determinations - procedural determinations - Safety, Rehabilitation and Compensation Act 1988 - suspension of proceedings under s 37(7) - Administrative Appeals Tribunal Act 1975 – referral to mediation – just but timely and effective resolution of a dispute – Tribunal has power to determine its own procedures

…

RELEVANT ACTS

Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 10A, 25, 33, 34A

Administrative Decisions (Judicial Review) Act 1999 (Cth) ss 3, 13

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 37, 38, 60, 64

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CITATIONS

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; (1990) 21 ALD 1; (1990) 94 ALR 11; (1990) 64 ALJR 462; [1990] HCA 33

Trajkovski v Telstra Corporation Limited (1998) 81 FCR 459; (1998) 153 ALR 248; (1998) 27 AAR 21

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; (2009) 83 ALJR 951; [2009] HCA 27

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REASONS FOR DECISION

6 July 2010 Senior Member A K Britton

1. At a directions hearing on 24 May 2010 I made orders under s 34A of the Administrative Appeals Tribunal Act 1975 (Cth) (“the Tribunal Act”) that the parties attend a mediation conference and gave oral reasons for that decision. The respondent, Australian Postal Corporation (“Australia Post”), subsequently applied under s 13 of the Administrative Decisions (Judicial Review) Act 1999 (Cth) (“the AD(JR) Act”) for written reasons for that direction.  In my view the obligation imposed by the AD(JR) Act to provide written reasons on request does not extend to the subject direction.  Nonetheless, I have decided to provide written reasons to assist the parties in understanding why I made the subject direction and, although in the circumstances this may seem paradoxical, why such requests for written reasons in relation to procedural directions ought not routinely be made.  

the subject direction

2.      Before addressing whether the requirement to provide written reasons extends to the subject direction, it is necessary to sketch in some details about the substantive application and its procedural history.

3.      In August 2008 Mr Aaron O’Connor lodged an application for review with the Administrative Appeals Tribunal in respect of the decision made by his employer, Australia Post, not to pay him compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) for the period 19 November 2007 to 8 February 2008 (“the disputed period”). It is not in issue that Mr O’Connor had suffered an “injury” for which Australia Post was liable and that he was incapacitated for employment throughout the disputed period. Nor is it in dispute that the SRC Act confers on the Tribunal the power to review the decision the subject of Mr O’Connor’s initiating application to the Tribunal (see ss 38, 60 and 64 of the SRC Act and s 25 of the Tribunal Act).

4. The stated reason given by Australia Post for its decision not to pay compensation to Mr O’Connor for the disputed period (“the reviewable decision”) was his alleged failure to undertake a rehabilitation program. Under the SRC Act, where employees refuse, or fail without reasonable excuse, to undertake their rehabilitation programs, their rights to compensation under the SRC Act are suspended until they begin to undertake the programs: s 37(7) of the SRC Act.

5.      On 17 May 2010 Australia Post wrote to the Tribunal requesting that the matter be listed for a directions hearing. By then, the application had been before the Tribunal for close to 20 months and the subject of 15 Tribunal “events”.  In its letter, Australia Post asserted that Mr O’Connor had failed to comply with directions made by the Tribunal concerning the filing of medical evidence and furthermore, had again failed without reasonable excuse to undertake a rehabilitation program. 

6.      The matter was listed for a directions hearing on 24 May 2010.  At that hearing, the solicitor for Australia Post, Ms Hatton, asserted that Mr O’Connor had again failed to undertake a rehabilitation program.  Mr O’Connor challenged that assertion.  I canvassed with the parties whether the matter lent itself to alternative dispute resolution. The solicitor for Mr O’Connor endorsed that proposal.  Ms Hatton stated that Australia Post could not consent to that proposal as she was without instructions.

7. I proceeded to make a direction under s 34A(1) of the Tribunal Act that the matter be referred for mediation. The Tribunal Act gives the President the power to direct that the proceeding, or any part of the proceeding, or any matter arising out of the proceeding, be referred for a particular alternative dispute resolution process (other than conferencing): s 34A(1)(b). Mediation is an “alternative dispute resolution process” for the purpose of the Act. The President’s powers under s 34A are delegated to Senior Members of the Tribunal: s 10A(1) of the Tribunal Act.

are written reasons required under the ad(jr) act? 

8.      Section 13(1) of the AD(JR) Act provides:

Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Federal Court or the Federal Magistrates Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him or her to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision. [emphasis added].

9.      A “decision to which this section applies” is defined by s 13(11) to mean a “decision to which this Act applies”, but excludes three classes of decisions listed at s 13(11)(a)-(c).  None are relevant to these proceedings. 

10.     A "decision to which this Act applies" is defined by s 3 of the AD(JR) Act to mean: 

… [A] decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):

(a)under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment ; or

…

11.     To constitute a "decision to which this Act applies” three elements must be satisfied:

That a decision has been made or proposed to be made or is required to be made; and

That the decision be of an “administrative character”; and

That the decision be made “under an enactment”.

12.     The leading case on the meaning of the term “decision” within the meaning of the AD(JR) Act is Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. Mason CJ said that a reviewable decision under the AD(JR) Act had a number of characteristics, including the fact that it must be a substantive determination. His Honour said (at 337–338):

Another essential quality of a reviewable decision is that it be a substantive determination. With the exception of s 3(2)(g), the instances of decision mentioned in s 3(2) are all substantive in character. Moreover, the provisions in subss (1), (2), (3) and (5) of s 3 point to a substantive determination. In this context the reference in s 3(2)(g) to “doing or refusing to do any other act or thing” (emphasis added) should be read as referring to the exercise or refusal to exercise a substantive power. …

If “decision” were to embrace procedural determinations, then there would be little scope for review of “conduct”, a concept which appears to be essentially procedural in character. To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality. Then it is the “conduct” of the hearing in refusing an adjournment that is the subject of review. To treat the refusal of the adjournment in this way is more consistent with the concept of “conduct” than with the notion of “decision under an enactment”.

13.     In my view, a direction that the proceeding, or an issue arising out the proceeding, be referred to a mediation conference could not be said to constitute a substantive determination but is more properly described, to use the words of the Chief Justice, as a “procedural determination”.  It follows that the subject direction is not a “decision to which the Act applies” and therefore that the obligation to provide written reasons under s 13 of the AD(JR) Act does not apply.

background to subject direction  

14.     As noted, Mr O’Connor’s application has had a protracted history. Since being filed in the Tribunal, it has been listed for 15 “events” — six conferences, four directions hearings, four return of summons hearings and a three-day hearing which was subsequently adjourned.

15.     At a conference on 16 October 2009 the parties were directed to file statements of facts and contentions, evidence and hearing certificates.  On 2 December 2009, Australia Post wrote to the Tribunal asserting that Mr O’Connor’s statement of facts and contentions raised a “novel issue” for which it was unprepared and therefore was unable to meet the Tribunal’s timetable for the filing of its material.  The matter was listed for a Directions Hearing on 22 December 2009, at which Australia Post was given an extension of time to file its documents.

16. On 21 January 2010, Australia Post wrote again to the Tribunal advising that Mr O’Connor’s compensation payments had been suspended two days earlier due to his failure to undertake a rehabilitation program. Australia Post wrote that it now appeared that by the operation of s 37(7) of the SRC Act the matter could not proceed. Australia Post sought clarification whether, in such circumstances, it was required to comply with the Tribunal’s direction made on 22 December 2009.

17.     Mr O’Connor’s solicitor wrote to the Tribunal challenging Australia Post’s contention that he had failed to undertake the rehabilitation program and provided medical reports in support.

18.     By letter dated 22 January 2010 the Tribunal replied to Australia Post:

As the issue of any suspension of any rights by the employee to continue proceedings pursuant to subsection 37(7) of the Safety Rehabilitation and Compensation Act 1988 is a matter that can be tested before the Tribunal, (see Trajkovski v Telstra Corporation Limited (1998) 81 FCR 459), Senior Member Allen requires the Respondent’s Statement of Facts and Contentions to be filed.

19.     Australia Post complied with the direction and filed its statement of facts and contentions on 1 February 2010.

20. The matter was listed for a three-day hearing on 21, 22 and 23 April 2010. On 19 March 2010, Australia Post wrote again to the Tribunal and requested that this hearing be vacated. Australia Post again invoked s 37(7) and asserted that Mr O’Connor’s rights to continue proceedings had been suspended on 19 January 2010 because of his alleged failure to undertake the rehabilitation program. Australia Post noted that the suspension decision was then subject to internal reconsideration.

21.     A further direction was made by the Tribunal on 22 March 2010 requiring the parties to file and exchange hearing certificates on or before 24 May 2010.  The April hearing was vacated.

22.     Australia Post wrote to the Tribunal on 17 May 2010 and requested that the matter be listed for a further Directions Hearing.  In that letter, Australia Post set out in some detail Mr O’Connor’s conduct which led it to believe that he had again failed to participate in a rehabilitation program. Australia Post also pointed out that it had not been provided with a medical report as foreshadowed by Mr O’Connor’s solicitor.

23.     The matter was then listed for a Directions Hearing at which the subject direction was made.

does the tribunal have power to decide whether proceedings are suspended under s 37(7)?

24. Section 37(7) provides:

Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program.

25. As is plain from the language of the provision the suspension of rights under s 37(7) is in effect, self-executing. Nevertheless as Tamberlin J pointed out in Trajkovski v Telstra Corporation Limited (1998) 153 ALR 248 at 253 “as a practical matter some person or body must make a decision as to its application in any specific case”.

26.     In Trajkovski Tamberlin J held that the Tribunal had erred in concluding that it did not have jurisdiction to consider whether s 37(7) applied. His Honour stated at 257:

[I]n my view, the AAT had the competence to consider the limits of its authority and the existence of its jurisdiction. In order to perform its statutory duty to review the decision pursuant to the SRC Act, it was essential that the AAT come to a conclusion on the existence and limits of its jurisdiction. This necessarily involves a consideration of the applicability of s 37(7) and its effect. Thus it requires an examination of pertinent questions of fact and law which arise in making this determination. This is not a question of “reviewing” any decision as to jurisdiction but of properly considering the threshold question of whether it has jurisdiction.

27. It seems to me that where, as in this case, proceedings are on foot, and the respondent employer claims that proceedings are suspended by the operation of s 37(7) of the SRC Act, the Tribunal must satisfy itself that the elements necessary to give rise to a suspension are satisfied. This may include, for example, resolution of the question whether the injured worker has a reasonable excuse.

reasons for referral to mediation  

28. The Tribunal Act gives the Tribunal power to determine its own procedures and requires that proceedings be conducted with as little formality and technicality, and with as much expedition, as the requirements of the Act and of every other relevant enactment permit: ss 33(1)(a) and 33(1)(b). In carrying out its functions the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick: s 2A of the Tribunal Act.

29.     It is plain from the history of these proceedings that they could not be characterised as either quick or economical.  As noted, they have been on foot for about 20 months and have involved 15 separate Tribunal events.  Those figures improve marginally if the delay caused by the purported suspension is disregarded.

30. In deciding to refer the parties to mediation before listing the s 37(7) issue for resolution, I was mindful of the length of time that Mr O’Connor’s application has been before the Tribunal, the significant costs incurred by both parties and the relatively small amount of compensation in dispute — $3,000. I also had regard to the fact that significant resources have been expended by the Tribunal on this matter so far, with very little progress made either in respect of the substantive application or the issue of the s 37(7) suspension, and the cascading effect such delays have on other matters before the Tribunal.

31.     It is trite to observe that alternative dispute resolution (“ADR”) is an important case management tool, not only in assisting parties to resolve disputes but also in reducing costs and delay.  Whether this matter will be one that will be assisted by ADR is not possible to say in advance.  However, in my view this option should be explored before further costs are incurred.

32.     The High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 affirmed the importance, not only to parties, but to the court and other litigants of “a just but timely and cost-effective resolution of a dispute” (per Gummow, Hayne, Crennan, Kiefel and Bell JJ at 211). Chief Justice French, at 192 referred to the “potential for loss of public confidence in the legal system” which can result in delay in proceedings. While their Honours’ comments were directed at the applications for adjournment, nonetheless they are, in my view, equally applicable to the circumstances raised in this case.

33.     Mediation, as is well known, is a process in which the parties to a dispute, with the assistance of a Tribunal Member or another person appointed by the Tribunal (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement.  It is, in short, a method of cutting the Gordian knot of fruitless and time-consuming interlocutory wrangling and prevarication.  In this case, without attributing blame to either party, I consider that so much time has been consumed in unproductive argument and interlocutory events that have failed to advance the matter towards resolution that it is evident that a different approach is needed to bring the parties together to identify the real issues and, if possible, to settle them.  In my opinion, it is not only in the parties’ interests that they fully co-operate in that process, but, the resources of the Tribunal being finite and its workload large, it is also in the public interest that they do so.

34.     I might also add that where oral reasons have been given in an interlocutory matter, it is the duty of the parties or their representatives to take a proper note of the reasons specified by the Tribunal for its decision.  That is the case in all courts and tribunals.  Given the already heavy call on the resources of the Tribunal in dealing with substantive decisions in writing, parties ought not, as a matter of course, request or expect written reasons in relation to procedural decisions.  Such a requisition simply transfers the burden of note-taking from the litigants to the Tribunal and adds further to the drain on the resources of the Tribunal and the ultimate cost in time and money of the litigation.

35.     Finally, it is well known and well publicised on the Tribunal’s website, as well as in its rules and legislation, that the Tribunal has a number of ADR techniques in its armoury.  Parties appearing before the Tribunal ought to acquaint themselves with them and come prepared in relation to them.  It is disappointing that Australia Post’s representative was unable to assist the Tribunal on 24 May 2010 because she did not have instructions on the question of ADR generally or mediation in particular.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

Signed:................[sgd]...............................................................
  Associate

Date of Decision and Oral Reasons         24 May 2010
Date of Written Reasons  6 July 2010
Solicitor for the Applicant  Max Emanuel Solicitors
Solicitor for the Respondent  Australian Postal Corporation