Ferro and Australian Postal Corporation

[2009] AATA 174

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 174

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4404

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ESTATE OF EDUARDO FERRO

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

INTERLOCUTORY DECISION

Tribunal J. W. Constance, Senior Member

Date30 January 2009

PlaceCanberra

Decision The management of this application is transferred from the Canberra Registry of the Tribunal to the Sydney Registry

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

J. W. Constance, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – transfer of application to different Tribunal Registry – test of suitability of conducting matter – matter transferred to Sydney Registry

Re Howarth and Australian Postal Corporation [2008] AATA 655  

National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155

REASONS FOR DECISION

30 January 2009 J. W. Constance, Senior Member            

INTRODUCTION

1.      The Late Mr Eduardo Ferro died on 11 May 2004.  It appears that at the time of his death he had not recovered from a heart condition suffered on 7 January 2004.  That incident occurred whilst the late Mr Ferro was at his place of work where he was employed by the Australian Postal Corporation.

2.      In July 2006 Ms Epifania Ferro, the widow of the Late Mr Ferro, lodged with the Corporation a Claim for Compensation for a Work-related Death.   The claim was for payments of funeral and medical expenses and for payments to herself and a dependent son of herself and her late husband. This claim has been denied by the Corporation, and Ms Ferro has sought a review of this decision by this Tribunal.  The application for review was filed on 22 September 2008.

3.      At a Telephone Conference on 18 November 2008, the Corporation indicated that it sought to have the management of this matter referred to the Sydney Registry of the Tribunal.  After hearing this application on 30 January 2009, I made the following Directions:

Pursuant to section 33 of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal directs that:

1.the management of this application is transferred from the Canberra Registry of the Tribunal to the Sydney Registry;

2.until further direction, the parties shall file any further documents in relation to this matter in the Sydney Registry at Level 7, 55 Market Street, Sydney NSW. 

I gave oral reasons for my decision immediately following the hearing.  I now provide my reasons in writing.

FACTS

4.      For the purposes of the hearing the following facts were not in dispute.

·On 7 January 2004 the late Mr Ferro was employed by the Corporation and was working as a Mail Officer at the Corporations Distribution Centre in South Strathfield, which is in the Sydney metropolitan area.  Whilst at work that day, the late Mr Ferro suffered an abnormal heart condition.  He died on 11 May 2004.  Ms Ferro claims that her husband suffered an injury within the meaning of the Safety, Rehabilitation and Compensation Act 1988, and that this injury resulted in his death.

·A number of witnesses to the late Mr Ferro’s suffering the onset of the condition at work reside in Sydney.

·The medical practitioners who treated the Late Mr Ferro, both before and after the incident, practise in Sydney.

·Following the incident the Late Mr Ferro was hospitalized at the Concord Hospital in Sydney.

·Ms Ferro and her son reside in Sydney.

·Ms Ferro relies upon the expert opinion of Professor Hickie, Cardiologist, who practises in Sydney.

·The Corporation wishes to obtain an expert opinion of Dr O’Rourke, Cardiologist, who practises in Sydney.

THE PARTIES’ ARGUMENTS

5.      The Corporation argued that apart from the Estate presently being represented by a solicitor in Canberra there is no other reason to have the matter determined in this Registry, and that other factors outweigh this consideration.

6.      The basis of Ms Ferro’s opposition to the application to transfer was set out in a letter of 18 November 2008 from Brydens Compensation Lawyers to the Tribunal.  The grounds set out can be summarized as follows:

·Brydens Compensation Lawyers maintains an office in Canberra to handle all claims under the Safety, Rehabilitation and Compensation Act 1988;  the firm’s New South Wales offices do not act in such claims;

·the Australian Capital Territory is the established legislative and executive capital of Australia, and the Corporation is capable of conducting claims in the territory;

·the ACT office of Brydens is staffed by Mr Peter Harris, recognized as an expert in Commonwealth compensation, and it would be unfair to deny the Estate representation by Mr Harris;

·The Estate’s solicitors expect to seek medico-legal opinion from doctors in Canberra;

·the jurisdiction of the Tribunal is federal and an applicant can choose the Registry in which proceedings are commenced and there is a burden of proof on a respondent wishing to have the venue changed;

·there is a marked disparity of resources between the parties;

·it is typical that medical witnesses give evidence by telephone;

·Mr Harris is a permanent resident of the Philippines and his assisting paralegal is a citizen of the Philippines; the ACT Registry of the Tribunal has a staff member who speaks Filipino.

7.      Counsel for the Estate informed me that it has been represented by a solicitor in the Canberra office of Brydens since May 2008, and that Ms Ferro wishes to have Mr Harris continue to act for the Estate.  Counsel was uncertain if an interpreter would be required at the hearing, but told me that Ms Ferro speaks English.

8.      Mr Harris gave evidence that he had commenced practice in the Canberra office of Brydens in July 2008, and that he has established a centre of excellence in Commonwealth compensation law.  He said that there had been difficulties with earlier representation of the Estate, and that he had been able to explain the relevant legal principles to Ms Ferro.

REASONING

9.      For the reasons I set out in Re Howarth and Australian Postal Corporation [2008] AATA 655 I am of the view that the principles stated by the Federal Court in National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 are applicable in a matter such as this. At page 162 the Court said:

Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court.

10.     It is clear from the documents already filed by the parties that there is an issue between them as to the circumstances in which the late Mr Ferro fell ill whilst at work.  The solicitors for the Estate have filed statements by a number of witnesses to this incident.  The solicitors for the Corporation have filed similar witness statements and reports including a copy of an Ambulance Service report.  The authors of all these statements and reports appear to reside in the Sydney area, as do Ms Ferro and her son.  There is a likelihood at least that a number of these witnesses will be required to give evidence at a hearing.  In addition, the likely medical witnesses practise in Sydney.

11.     The only reason advanced on behalf of the Estate for this matter remaining in the Canberra Registry is that Ms Ferro wishes to continue to instruct Mr Harris.  Of course Ms Ferro is entitled to do this, just as she was entitled to file her application in whichever Registry she pleased.  However, it appears from the s 37 documents filed in this application that the Liverpool office of Brydens was acting for the Estate by August 2006, and continued to do so until around May 2008.  At this time the conduct of the matter appears to have been transferred to the Canberra office.

12.     In my view the test stated by the Federal Court was best satisfied by the further conduct of this matter being transferred to the Sydney Registry of the Tribunal.  I appreciate that this may require Mr Harris to travel from Canberra to Sydney for the necessary conciliation conference and the hearing, should the matter not settle.  However, this appears to me to be the result of internal arrangements within the firm of Brydens, and the cost consequences of those arrangements are between Ms Ferro and Brydens and are not a matter for my consideration.  I note that Ms Ferro was present in the Hearing Room during the hearing of this application, but was not called to give evidence as to her wish to have the matter remain in the Canberra Registry and/or the reasons for that desire.

13.     The argument based on the presence in the Canberra Registry of a Tribunal officer able to speak the same Philippine dialect as Ms Ferro does not assist Ms Ferro’s case as there is no evidence to show the relevance of this fact and how it would help Ms Ferro.  In any event I note that in the application filed with the Tribunal it was indicated that the assistance of an interpreter was not required.  Ms Ferro did not give evidence to the contrary.  Counsel told me that she could speak English.

14.     Counsel for the Estate informed me that he could seek instructions from Ms Ferro to agree to meet any additional witness expenses incurred as a result of this matter being heard in Canberra.  In view of the provisions of the Safety, Rehabilitation and Compensation Act 1988 as to costs, I do not consider that this was an appropriate course and such an undertaking, if it was forthcoming, would not influence my decision on this application.The Act does not contemplate a claimant for compensation being ordered to pay costs, and any direction or undertaking which would have the effect of departing from this would not be appropriate.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of J. W. Constance, Senior Member.

Signed:         ........................[sgd]........................................................
  Tal Aviram, Associate

Date of Hearing  30 January 2009
Date of Decision  30 January 2009
Counsel for the Applicant         Mr D. Richards
Solicitor for the Applicant          Brydens
Counsel for the Respondent     Ms R. Henderson
Solicitor for the Respondent     Australian Government Solicitor