Barnes and Australian Postal Corporation (Compensation)

[2022] AATA 849

Barnes and Australian Postal Corporation (Compensation) [2022] AATA 849 (27 April 2022)

Division:GENERAL DIVISION

File Number(s):      2021/6685

Re:Anthony   Barnes

APPLICANT

AndAustralian Postal Corporation

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:27 April 2022

Place:Sydney

Pursuant to s 40A(2) of the AAT Act the applicant’s request to issue summons to Mr Metcher, Mr John, and Mr Staunton are refused.

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Senior Member A Poljak

CATCHWORDS

PRACTICE & PROCEDURE – Objection to issue summonses to give oral evidence –whether witnesses able to give evidence relevant to the Tribunal's determination of substantive issues – where evidence doesn’t go to narrow issue before the Tribunal – request for summons refused – interlocutory application granted.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 40A

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 36(4)

REASONS FOR DECISION

Senior Member A Poljak

27 April 2022

1. Mr Anthony Barnes, the applicant, has an accepted claim for ‘Major Depression’ with a deemed date of injury of 29 August 2004.

2. In a determination dated 14 July 2021, the respondent determined that pursuant to s 36(4) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), the applicant had failed, without reasonable excuse, to undergo an examination with Dr Lam Po Tang on 21 June 2021 and that, accordingly, his rights to compensation under the SRC Act were suspended until the examination took place. The determination was affirmed by a reconsideration officer of the respondent on 22 July 2021. This is the decision under review in the substantive proceedings.

3. The applicant seeks to issue summons to appear and give evidence at the hearing of the substantive matter to Mr Jim Metcher, former NSW CEPU Secretary, Mr Graeme John, former CEO of the respondent, and Mr Scott Staunton, special counsel for the respondent.

4. These interlocutory proceedings concern the respondent’s objection to the issue of the summons. The respondent seeks to have the summons set aside in full on the basis that the request to issue the three summons to attend and give evidence at the principal hearing are not for a legitimate forensic purpose.

5. Pursuant to s 40A(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), a person may be summoned to appear before the Tribunal to give evidence. The Tribunal has discretion to set aside a summons if it is irrelevant to or will not shed light on the issues in the proceedings.

   Consideration

6. Despite the Tribunal not being bound by the rules of evidence, it may inform itself on any matter in such manner as it thinks appropriate; s 33(c) of the AAT Act. For the following reasons, I do not consider the potential evidence of Mr Metcher, Mr Staunton nor Mr John to be relevant to the issues in the substantive proceedings.

7. The applicant contends that Mr Metcher, Mr John and Mr Staunton should be summonsed to appear at the hearing of the substantive matter as they could assist the Tribunal to understand the case background, and the nature of the relationship between the parties. He contends that this is relevant because the respondent has no genuine regard for his wellbeing, which is clearly evident in the cessation of his compensation payments, being his only source of income. The applicant states that the evidence is also relevant as the respondent has stated in its statement of facts, issues and contentions dated 15th March 2022, that, "The applicant has no genuine intention to pursue a program of return to work".

8. More specifically, in the request to issue summons to Mr Metcher, the applicant provided the following reasons:

   “…Jim Metcher can be asked to verify his statements to the applicant, describing
   the respondent’s issuing of a faulty, defective and unsafe truck to the applicant on the 29th August 2004, which is the root cause of the injury sustained and the subsequent compensation claim currently in dispute.

   Jim Metcher can also be asked to explain why he referred the applicant to the outcome of the Coronial Inquest, when he was aware that the inquest did not investigate the nature of the faulty, defective and unsafe truck (VZR-171).

   Metcher stated to the applicant: (a) “If your claim to have the truck investigated goes ahead, it will bring about a wave of what-about-me claims”, (b) “If your claim to have the truck investigated goes ahead, people will loss their jobs”, (c) Metcher asked the applicant “how many copies of the evidence against the truck do you have?”, (d) Metcher advised the applicant to burn the evidence.

   All of these anomalies should be addressed before the Tribunal.”

9. In the request to issue summons to Mr John, the applicant provided the following reasons:

   “…Graeme John can also be asked to verify his letter sent to the applicant, describing the respondent’s issuing of a faulty, defective and unsafe truck to the applicant on the 29th August 2004, which is the root cause of the injury sustained and the subsequent compensation claim currently in dispute.

   Graeme John can also be asked to explain how he knew the outcome of the Coronial Inquest one year in advance, and why the nature of the faulty, defective and unsafe truck (VZR-171) was not reported to ComCare.”

10. In the request to issue summons to Mr Staunton, the applicant provided the following reasons:

    “Staunton can also be asked to verify his six emails sent to the applicant, describing the respondent’s intent to negotiate a full and final settlement and
    separation “in the utmost good faith”, and why the respondent has now reneged upon this promise…”

11. All these reasons articulated by the applicant in support of issuing the summons to Mr Metcher, Mr John are Mr Staunton are irrelevant to the issue to be determined in the substantive proceedings. The substantive proceedings are limited to a discrete issue. Namely, whether the applicant’s failure to attend the relevant appointment with Dr Lam Po Tang on 21 June 2021 constitutes a failure, ‘without reasonable excuse, to undergo an examination in accordance with a requirement’, within the meaning of s 36(4) of the SRC Act.

12. It would be unfair and inconsistent with the Tribunal’s objectives in s 2A of the AAT Act to require a person to appear as a witness where, in the Tribunal’s view, there is no real possibility that their evidence would assist in determining the issues before the Tribunal.

    DECISION

13. Pursuant to s 40A(2) of the AAT Act the applicant’s request to issue summons to Mr Metcher, Mr John, and Mr Staunton are refused.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 27 April 2022

Date(s) of hearing:	20 April 2022
Applicant:	In person
Solicitors for the Respondent:	Mr A GHALEB, McINNES WILSON LAWYERS