Behan, T.J. v Australian Telecommunications Corporation

[1990] FCA 300

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY )	No. G355 of 1990

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GENERAL DIVISION 1

BETWEEN: THOMAS JOHN BEHAN

Applicant I I

AND:  AUSTRALIAN TELECOMMUNICATIONS , .

CORPORATION and ANOR	I
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27 JUNE 1990

LOCKHART J:

This matter has arisen only very recently, by the filing of an application in this Court this morning pursuant to leave	/.I
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granted by another judge of this Court yesterday afternoon.	i 1..l
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The application seeks to restrainthe first respondent, the Australian ~elecommunications Corporation, and the second	t -
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Behan, from decisions of delegates of the Commissioner for Employees Compensation which in substance found that the applicant was not entitled to compensation under the Commonwealth	F
respondent, Mr C.J. Bannon of Queen's	Counsel, a deputypresident	l ?

of the Administrative Appeals Tribunal, from proceeding further

1 .

with the hearing of a matter which is	currently before the
tribunal, in effect an appeal by the applicant, Thomas Joseph	t 7

Em~lovees' Rehabilitation and Comuensation Act 1988 ("the Act"). It is apparent from the evidence that the tribunal has taken the view that the proceeding before it should be dealt with with all proper despatch but in the last 24 hours or so the position has changed materially by the commencement of the proceedings in this Court.

In essence, as I understand it, the applicant says in this Court's proceeding that he seeks to enforce what he claims to be an agreement reached between himself and the first respondent with respect to his claim for compensation under the Act.

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The applicant says that an agreement has been reached to settle his claim for compensation and that the question of the binding force of that agreement should be determined first. If he fails in that claim then it will no doubt remain open for the tribunal to further deal with the applicant's appeal to it from the decisions of the delegates.

As I understand it, the first respondent contends that, although agreement may have in fact been reached between it and the applicant with respect to the resolution of the claims for compensation, the agreement may have been reached, so far as the first respondent is concerned, in circumstances which are beyond power; and the first respondent says it cannot act otherwise than in accordance with its statutory powers.

I think it is plain that the question of the binding force

or otherwise of the agreement which is said to have been reached must be first determined in this Court. Once that issue is determined it will no doubt determine whether or not the current appeal to the Tribunal proceeds or not. I think the appropriate course to follow is to allow the applicant to amend the application presently before this Court so as to encompass the foreshadowed claim that a binding agreement has been reached between the applicant and the first respondent with respect to the claim under the act; and once that is disposed of then the tribunal can take the appropriate course to deal with any residual elements in the matters before it.

I have been asked to restrain the second respondent from proceeding further with the hearing of the proceeding before him. I can of course take that course but I think the preferable course is for me to simply take the course I have, that is, express the view that that proceeding should.not continue during the pendency of the proceedings before this Court. No doubt the

second respondent will act in accordance with that expression of

opinion.

Accordingly, the orders of the Court are as follows:

1. I grant leave to the applicant to lodge with the Registrar

   an application for an order of review by today.

2.    I deem the application presently lodged to constitute the said application.

3.   I grant leave to the applicant to amend the application generally by filing and serving an amended application by Monday next, 2 July 1990.

1. I direct the applicant to file and serve all affidavits upon which he proposes to rely by 23 July next.

5.   I direct the first respondent to file and serve all af fidavits upon which it proposes to rely by 6 August next.

1. The matter is adjourned for further directions to 9 August next at 9.30 am.

2. Any party is at liberty to apply in the meantime on two

   days notice.

   I certify that this and the preceding three (3) pages are a

Mr. Justice Lockhart. true copy of the reasons for judgment herein of the Honourable , ,

r 7 1 : . - . I

Associate C.2 - L ' - c ' ' -

Dated: 27 June 1990 J

Counsel for Applicant:	Mr S L Walmsley
Solicitor for Applicant:	McClellands
Counsel for First Respondent:	Miss R H Henderson
Solicitor for First Respondent:	Australian Government
Solicitor
Counsel for Second Respondent:	Mr R Orr
Solicitor for Second Respondent:	Australian Government Solicitor
Date of Hearing:	27 June 1990
Date of Judgment:	27 June 1990