Australian Postal Corporation v Nguyen
[1996] FCA 1098
•13 DECEMBER 1996
CATCHWORDS
Administrative Law - Administrative appeals - Administrative Appeals Tribunal (Cth.) - Appeals to Federal Court of Australia - Interlocutory procedural direction not a "decision" from which appeal lies.
Workers' compensation - Commonwealth government employees compensation - Proceedings to obtain compensation - Review by Administrative Appeals Tribunal - Procedure - Directions - Interdiction of employee's right to receive a document under Safety Rehabilitation and Compensation Act 1988, s.59(1)(a) inappropriate - "Claimant" in s.59(1)(a) includes employee whose entitlement to compensation has been determined to exist.
Administrative Appeals Tribunal Act 1975 - ss 33, 35(2)(c), 35(3), 44(1)
Safety Rehabilitation and Compensation Act 1988 - ss 59(1)(a), 69(a), 107L(2), 107M(4)
Australian Broadcasting Tribunal v. Bond (1990) 170 C.L.R. 321
Australian Postal Commission v. Hayes (1989) 87 A.L.R. 283
Director-General of Social Services v. Chaney (1980) 31 A.L.R. 571
Re Lindsey and Australian Postal Commission (1989) 18 A.L.D. 340
Re Parremore and Australian Postal Corporation (1991) 23 A.L.D. 115
AUSTRALIAN POSTAL CORPORATION v. DUC HAI NGUYEN
VG106 of 1996
Jenkinson J.
Melbourne
13 December, 1996
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG106 of 1996
GENERAL DIVISION )
On Appeal from the General Administrative Division of the Administrative Appeals Tribunal constituted by Mr. J.R. Handley, Senior Member
Applicant
AND:DUC HAI NGUYEN
Respondent
CORAM: Jenkinson J.
PLACE: Melbourne
DATE: 13 December, 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The appeal be dismissed as incompetent.
The applicant pay the respondent's costs of the appeal.
(Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.)
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG106 of 1996
GENERAL DIVISION )
On Appeal from the General Administrative Division of the Administrative Appeals Tribunal constituted by Mr. J.R. Handley, Senior Member
BETWEEN:AUSTRALIAN POSTAL CORPORATION
Applicant
AND:DUC HAI NGUYEN
Respondent
CORAM: Jenkinson J.
PLACE: Melbourne
DATE: 13 December, 1996
REASONS FOR JUDGMENT
Appeal from what is claimed by the applicant, but denied by the respondent, to be a "decision", within the meaning of that word in s.44(1) of the Administrative Appeals Tribunal Act 1875, of the Administrative Appeals Tribunal constituted by Senior Member Handley.
The respondent claimed compensation for "lumbar disc injury" sustained on 16 October 1988. On 14 March 1989 liability to pay compensation was determined to exist under the Safety Rehabilitation and Compensation Act 1988, the relevant provisions of which commenced on 1 December 1988. In June 1995 the applicant by its delegate determined that liability to pay compensation in respect of the injury ceased on 20 June 1995. Pursuant to s.62 of the Safety
Rehabilitation and Compensation Act 1988 the applicant affirmed that determination on 22 september 1995. Application was thereupon made by the respondent for review by the Administrative Appeals Tribunal of the latter decision.
On 29 November 1995 Senior Member Handley gave, on the respondent's ex parte application, the following direction in the proceeding commenced by the respondent's application for review:
"Upon hearing Ms Martin on behalf of the respondent and the respondent having applied to the Tribunal to have directions made in the absence and knowledge of the applicant and his representatives IT IS DIRECTED pursuant to s.35 of the Administrative Appeals Tribunal Act 1975 as follows-
1. T-documents identified as T161 - T164 inclusive comprising 16 pages shall not be released or the contents disclosed to the applicant or his solicitors and knowledge of the existence of the documents shall be restricted to Tribunal staff and Tribunal members constituted to hear the application, the respondent and its solicitors.
2. The respondent shall lodge with the Tribunal forthwith a video surveillance film referable to T163 - T164 and upon it being lodged it shall be given the same status as the documents referred to in paragraph 1 above.
3. This direction shall not be communicated to the applicant or his solicitor."
(It is necessary to supply, in the fourth line of the directions, the words "without the" before the word "knowledge".) An error in the Tribunal's Registry resulted in delivery of a copy of those directions to the respondent's solicitors, who sought and obtained, pursuant to s.43(2A) of the Administrative Appeals Tribunal Act 1975 ("the A.A.T. Act") a statement in writing of the reasons of the Tribunal for its decision to give the directions, and then applied for revocation of the directions. On 23 February 1996 the directions were revoked.
The Tribunal accepted the submission for the respondent that s.59(1)(a) of the Safety Rehabilitation and Compensation Act 1988 ("the Compensation Act") imposed on the applicant an obligation, on request by the respondent, to give to the respondent any document held by the applicant that relates to the respondent's claim for compensation on and after 20 June 1995. It was common ground that the documents were of that description and that, having been accidentally apprised of their existence, the respondent had requested the applicant to give them to him.
Section 59 of the Compensation Act provides:
"(1) A relevant authority shall:
(a)on request by a claimant - give to the claimant any document held by the authority that relates to the claimant's claim; or
(b)on request by the Commonwealth in respect of a claim affecting the Commonwealth or a commonwealth authority - give to the Commonwealth any document held by the relevant authority that relates to a claim under this Act.
(c)on request by a licensed corporation in respect of a claim affecting the
corporation - give to the corporation any document held by the relevant authority that relates to the claim.
(2) This section also applies in relation to the determination of a request under section 25 and for that purpose:
(a)a reference to a claim shall be read as a reference to the request under that section; and
(b)a reference to the claimant shall be read as a reference to the person who made the request."
The applicant was the "relevant authority" in relation to the respondent. Paragraph 35(2)(c) of the A.A.T. Act provides:
"(2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:
........ ........ ........ ........ ........ .......
(c)give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding."
Sub-section 35(3) of the A.A.T. Act provides:
"(3) In considering
(a)whether the hearing of a proceeding should be held in private; or
(b)whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the
Tribunal or received in evidence by the Tribunal, should be prohibited or restricted;
the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted."
Because the Tribunal considered that s.59(1)(a) of the Compensation Act had placed the applicant under an obligation to give the respondent the documents, it regarded the continued existence of its direction to the applicant not to disclose the contents of the documents to the respondent as inappropriate and therefore revoked the direction.
When the appeal to this court came on for hearing Mr. Coish of counsel for the respondent submitted that the appeal was incompetent because the revocation of the direction, as well as the direction itself, did not fall within the meaning of the word "decision" in s.44(1) of the A.A.T. Act, as that meaning has been expounded by Deane and Fisher JJ. in Director-General of Social Services v. Chaney (1980) 31 A.L.R. 571. Deane J., in whose reasons for judgment Fisher J. agreed, stated (at 593):
"The conclusion which I have reached is that,
subject to the qualifications mentioned below, an appeal under s.44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. Ordinarily, such a decision will be the final decision formulated in accordance with the provisions of s.43 of the Act. The qualifications referred to are an appeal pursuant to s.44(2) from a decision that the interests of a person are not affected by a particular decision and the case where the proceeding before the Tribunal can properly be divided into two or more separate parts in respect of which independent `decisions' may properly be given."
Deane J. had earlier explained what he had in mind concerning a "proceeding .... properly .... divided into two or more separate parts in respect of which independent `decisions'
may properly be given" when he observed (at 591) that -
"it is possible that one proceeding before the Tribunal could involve the review of a number of connected decisions by the original decision maker, with the consequence that the proceeding before the Tribunal called for a number of ultimate decisions each of which effectively disposed of a separate part of the proceedings (see, for example, Sullivan v. Department of Transport (1978) 20 ALR 323, where the grant of two distinct licences was in issue)."
That "qualification" is inapplicable, in my opinion, to a direction or a revocation of the kind here in question. Such interlocutory procedural directions in a proceeding are usually "conduct for the purpose of making a decision", within the meaning of those words in s.6(1) of the Administrative Decisions (Judicial Review) Act 1977, as Wilcox J. appeared to acknowledge in the opening sentences of his reasons for judgment in Australian Postal Commission v. Hayes (1989) 87 A.L.R. 283, where he referred to a direction by the Tribunal, that a claimant be shown certain documents before the claimant gave evidence, as "conduct" of the Tribunal. However, his Honour later spoke (at 289) of the direction being "reviewable by this court, pursuant to s.5(1)(a) of the Administrative Decisions (Judicial Review) Act", not s.6(1)(a) of that Act. (The High court had not given judgment in Australian Broadcasting Tribunal v. Bond (1990) 170 C.L.R. 321 when Wilcox J. delivered his judgment.) Mr. Gorton Q.C. for the applicant sought to place reliance on Hayes' Case. As Toohey and Gaudron J.J. pointed out in Bond's Case (at 375) the inclusive definitional provisions concerning the word "decision" in the A.A.T. Act and in the Administrative Decisions (Judicial Review) Act 1977 are "virtually identical". Mr. Gorton submitted that the direction set aside by Wilcox J. was of precisely the same kind as Senior Member Handley made and later revoked, so that all three decisions could be seen to be within the meaning of the word "decision" in s.44(1) of the A.A.T. Act. Further, Mr. Gorton submitted, the directions by Senior Member Handley and their revocation, unlike the ruling that the Tribunal had jurisdiction to review a particular administrative decision which was under consideration in Chaney's Case, were not made in the course of the Tribunal's hearing of the proceeding, but each was a separate part of the proceeding in respect of which an independent "decision" may, and was, properly given, and that each was accordingly within the second "qualification" made by
Deane and Fisher JJ. in that case.
In my opinion the second qualification is inapplicable to interlocutory procedural directions, whether given before or during the hearing.
I do not consider that reasoning upon provisions of the Administrative Decisions (Judicial Review) Act 1977 can be automatically applied to the A.A.T. Act. Even if, after Bond's Case, a direction given in pursuance of s.35(2)(c) were to be characterised as a decision within the meaning of the former Act because "the statute provided for the making of a .... ruling on that point, so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment" (see Bond's Case at 337) and "made in exercise of powers conferred by [an] .... enactment" (see s.25(1) of the A.A.T. Act), I do not consider that that conclusion justifies characterisation of such a direction as a decision within the meaning of the latter Act. I think myself bound by Chaney's Case to hold that neither the direction nor the revocation of Senior Member Handley was a "decision" within the meaning of that word in s.44(1) of the A.A.T. Act.
Lest I be in error in that conclusion, and to assist the applicant in any consideration it might wish to give to the possibility of seeking an order of review in respect of the revocation of the direction under the Administrative Decisions (Judicial Review) Act 1977, whether as a "decision" or as "conduct for the purpose of making a decision", I will deal with the submissions as to whether revocation of the direction was vitiated by error of law.
Wilcox J. in Hayes Case and Mr. Justice Gray, Deputy President of the Tribunal, in Re Lindsey and Australian Postal Commission (1989) 16 A.L.D. 340 were applying the Compensation (Commonwealth Government Employees) Act 1971, which lacked a provision similar to s.59(1)(a) of the Safety Rehabilitation and Compensation Act 1988. In Re Parremore and Australian Postal Corporation (1991) 23 A.L.D. 115 Senior Member Balmford, as Balmford J. then was, had for decision an application by an employee's solicitor for a direction that the employer make available to the employee a video film of himself before the hearing of a review by the Tribunal of a decision that the employer was not liable to pay compensation in respect of what was described as the employee's "right shoulder/wrist, strained shoulder, sustained on 25 September 1989". The proceeding in the Tribunal was under the Safety Rehabilitation and Compensation Act 1988. The Tribunal held, upon a consideration of that Act and the inclusive definition of the word "document" in s.25 of the Acts Interpretation Act 1901, that the video film fell within the meaning of that word in paragraph 59(1)(a). The Tribunal considered that it would be inappropriate, in the face of the obligation created by that paragraph, to exercise the power conferred by paragraph 35(2)(c) or the discretionary power conferred by paragraph 33(1)(a) of the A.A.T. Act in such a way as to interdict immediate performance of the obligation. I agree.
Mr. Gorton submitted that on the proper construction of the Compensation Act 1988 the respondent was not, after the determination of 14 March 1989 was made that he was entitled to compensation, "a claimant" within the meaning of that word in paragraph 59(1)(a). Thus Mr. Gorton distinguished Parremore's Case : Parremore's claim for compensation having been refused, he remained a claimant, whereas the determination of liability to pay the respondent compensation placed the respondent outside the description of "a claimant" for compensation, according to the submission.
The word "claimant" is the subject of two definitional provisions. Section 4(1) includes the following:
"In this Act, unless the contrary intention appears:
........ ........ ........ ........ ........ .......
`claim' means a claim under Part V;
`claimant', in relation to a time after the death of a claimant, has the meaning given in subsection (11);"
Sub-section 4(11) provides:
"A reference in this Act to a claimant is, in relation to any time after the death of the claimant, a reference to his or her legal personal representative."
Part VI of the Compensation Act 1988 regulates reconsideration by determining authorities other than the Tribunal of their determinations decisions and requirements, and review by the Tribunal of decisions made on reconsideration. Section 60(1), with which Part VI commences, includes the following:
"In this Part:
`claimant' means a person in respect of whom a determination is made;
........ ........ ........ ........ ........ .......
`determination' means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39 or under Division 3 of Part X;"
Part VI makes provision for claims for compensation. Section 53 requires notice of an injury or other event capable of giving rise to a claim. Section 54 makes provision with respect to claims. Section 55 makes provision with respect to survival of claims. It includes a provision that "a claim is not affected by the death of a claimant after the claim is served". That seems to be first use of the word "claimant" after s.4. Section 57 authorises "the relevant authority" to require an employee in relation to whom a notice under s.53 has been given to submit to medical examination. Section 58 authorises a relevant authority which has received a claim to require "the claimant" to furnish information relevant to the claim, and to give a copy of a document relevant to the claim, to that authority. Part VI concludes with s.59. Generally it is only in Parts V and VI that the word "claimant" is used.
One of the functions, declared by s.69(a), of Comcare and, by other sections (107L(2), 107M(4)), of other "relevant authorities" is to make determinations in relation to claims under the Act. The language in which that function is declared, as well as a consideration of the whole of the complex provisions of the Act, in my opinion preclude a conclusion that the word "claimant" is to be understood as restricted in meaning to a person whose claim for compensation has either not been the subject of a determination or has been determined adversely. Although after the initial determination that entitlement to compensation exists there will commonly be no occasion for the making by an employee of a further claim, the ascertainment of the extent of the liability will commonly be matter for further determination from time to time. Those further determinations will answer the description in s.69(1) - "determinations .... in relation to claims" - as being in relation to the claim upon which the initial determination was made. So too will those determinations answer the descriptions in ss. 107L(2) and 107M(4) : "determining claims for compensation or for other payments under this Act in respect of an injury, loss or damage suffered by, or in respect of the death of, a relevant employee". In undertaking enquiries for the purpose of making those further determinations the relevant authority is likely to have need of information and documents of the description specified in s.58, and the employee in respect of whom the enquiries are being made will commonly have an interest in having access to documents of a description specified in s.59. The expressions in those two sections - "a document that is relevant to the claim" and "document .... that relates to the claimant's claim" - should be understood as comprehending documents relevant to a determination of the extent of the liability in respect of the subject of the claim. The indications to the contrary which Mr. Gorton's thorough argument disclosed are not in my opinion sufficient to displace that construction of s.59(1)(a).
If I had thought the appeal competent, I would yet have dismissed it.
I certify that this and the 12 preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Jenkinson.
Associate
Dated: 13 December, 1996
Counsel for the Applicant : Mr. M.J. Gorton
Counsel for the Respondent : Mr. P.J. Coish
Solicitors for the Applicant : Wisewoulds
Solicitors for the Respondent : McMullin Coate & Co.
Date of Hearing : 12 August, 1996
Date of Judgment : 13 December, 1996
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