Fitch v George Town Seafoods Pty Ltd

[2025] TASFC 3

[2025] TASFC 3

COURT:	SUPREME COURT OF TASMANIA (FULL COURT)
CITATION:	Fitch v George Town Seafoods Pty Ltd [2025] TASFC 3
PARTIES:	FITCH, Ian James
v
GEORGE TOWN SEAFOODS PTY LTD
FILE NOS:	323/2024, 2640/2023
DELIVERED ON:	28 March 2025
DELIVERED AT:	Hobart
HEARING DATE:	26 August 2024
JUDGMENT OF:	Wood and Estcourt JJ, Martin AJ
CATCHWORDS:

Appeal and New Trial – Procedure – Tasmania – Other matters – Appeal against a judge's decision dismissing

application to extend time to appeal and two interlocutory applications concerning Tasmanian Civil
and Administrative Tribunal's dismissal of worker's compensation claim – Appeal against another
judge's decision dismissing application to extend time to bring application for judicial review of the
same Tribunal decision and refusal of judge to recuse himself – Appeals dismissed.

Aust Dig Appeal and New Trial [399.3]

Supreme Court Rules 2000 (Tas), rr 495(5), 692(1), 692(3)

REPRESENTATION:

Counsel:

Appellant:	In person
Respondent:	T Cox SC

Solicitors:

Respondent:  Page Seager

Judgment Number:	[2025] TASFC 3
Number of paragraphs:	41

Serial No 3/2025

File No FCA 323/2024

& 2640/2023

IAN JAMES FITCH v GEORGE TOWN SEAFOODS PTY LTD

REASONS FOR JUDGMENT	FULL COURT WOOD J ESTCOURT J MARTIN AJ 28 March 2025
Orders of the Court:

1      Interlocutory application dated 15 May 2024 on 323/2024 and interlocutory application filed 27 May 2024 on 2640/2023 dismissed.

2      Appeals dismissed.

Serial No 3/2025

File No FCA 323/2024

& 2640/2023

IAN JAMES FITCH v GEORGE TOWN SEAFOODS PTY LTD

REASONS FOR JUDGMENT	FULL COURT
WOOD J ESTCOURT J MARTIN AJ 28 March 2025

1             The Court is concerned with two appeals by the appellant, both of which are devoid of merit. In respect of both appeals the appellant has sought to rely on lengthy affidavits and other material containing voluminous irrelevant and scandalous assertions demonstrating clearly that the appeals in both proceedings were devoid of merit and an abuse of the Court's processes.

2             The appeals were heard on Monday, 26 August 2024. The appellant appeared by video-link from Launceston. At the outset of the hearing, the appellant indicated he was present only for the purpose of appearing and did not wish to make submissions or answer questions. The appellant persisted in asking questions of the Court as to the appeal books and material available to the Court, questions which reached the point of amounting to an insult to the Court. Ultimately the appellant was advised that he would be provided with a copy of all the material made available to the Court.

3             At the conclusion of submissions by counsel for the respondent, the appellant answered a number of questions aimed at eliciting from the appellant any submissions he wished to make concerning the merits of his appeals. In the course of answering those questions, the appellant indicated that his case with respect to the appeals was set out in an email sent to the Court on Sunday, 25 August 2024. The email was addressed to the "Lowest of the Low", and commenced with the words "To the Nefarious and the Iniquitous". To put it mildly, the email was replete with repeated allegations of corruption within the Court, corruption and criminal conduct by counsel, corruption in the Tasmanian Civil and Administrative Tribunal and corruption on the part of at least one Supreme Court judge. It is unnecessary to canvass the details. The allegations are wide ranging and unsupported by any evidence. They are scandalous and the presentation of them to the Court amounts to an abuse of process.

4             After the hearing of the appeals the appellant sent emails to the Supreme Court for our attention. These have been read to ensure they do not contain any material which might assist the appellant. They do not advance his case in any way. However, they brought to light two outstanding interlocutory applications which should have been referred to this Court. We have considered these applications. They both lack merit, do not bear on our determination of the appeals and are dismissed. Our reasons for so concluding are set out after our reasons for dismissing the appeals.

5             The appellant's appeals to this Court have their origins in the decision of the Tasmanian Civil and Administrative Tribunal dismissing a claim by the appellant for compensation. That decision was made on 8 November 2021.

6             Many months later the appellant sought to appeal against the Tribunal's decision. The appeal came before Brett J on 6 February 2024. His Honour was of the view that not only should an extension of time within which to appeal be refused, but there was no merit in the appeal.

7             The appellant did not appear before Brett J on 6 February 2024, but his Honour did not rely upon the non-appearance of the appellant when dismissing the appeal. First, his Honour noted that

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there had been no attempt to identify an error in the reasons of the Tribunal. Plainly, his Honour was
referring to the question of an error of law which might have founded a basis for an appeal.

8             Secondly, his Honour referred to the ground contained in the Notice of Appeal which asserted that the proceeding before the Tribunal was "unconstitutional", together with a reference to a failure to afford a fair hearing. Brett J noted that the material before him did not identify an error by the Tribunal and, referring to the word "unconstitutional" being used a lot in the written material filed by the appellant, stated that he had "no idea" of the meaning attributed by the appellant to that word.

9             Having found that no relevant error had been identified in the reasons of the Tribunal, while it was not necessary to do so, Brett J addressed the merits of the decision. His Honour found that the reasons of the Tribunal were "unimpeachable" and were based upon unchallenged evidence. Ultimately his Honour concluded that "clearly" no error appeared in the reasons and the appeal had "no merit substance".

10           Brett J also had before him two interlocutory appeals in respect of which the appellant has appealed to this Court against the decision of Brett J to dismiss those appeals. In addition, there were a further six interlocutory application appeals which Brett J also dismissed. There is no appeal to this Court against the decision with respect to those six interlocutory applications.

11           Noting he had the power to dismiss the appeals on the basis that the appellant had not appeared at the hearing, Brett J indicated he would dismiss those appeals on that basis, irrespective of any question of merit. However, his Honour accepted submissions for the respondent with respect to those appeals and made the following finding:

"It is clear to me that there is simply no merit to any of the applications that are made and the Associate Judge was perfectly correct to proceed as he did to dismiss those applications."

12           The appellant's grounds of appeal, coupled with his affidavits and emails to which we have referred, suggest that Brett J erred in dealing with the merits of the Tribunal's decision because the right of appeal was limited to establishing an error of law. This contention cannot be sustained in view of the reasons of Brett J in which he spoke of the absence of error before dealing with the merits of the decision.

13           Ground 3 of the notice of appeal appears to be addressed to the dismissal of the two interlocutory appeals which ground 3 asserts were "induced or affected by Corruption", leading to a failure to apply appropriate procedures and a breach of the rules of natural justice. I would assume, however, that this complaint also encompasses the appeal with respect to the Tribunal's decision.

14           Put simply, there is no evidence of corruption or a breach of the rules of natural justice. In an affidavit, the appellant claims that Brett J was misled by counsel for the respondent who stated in written submissions that the appellant had not filed a workers compensation appeal book, nor two interlocutory application appeal books. Counsel was in error. The mistake was explained during submissions to this Court.

15           In any event, before the matter was heard by Brett J, two appeal books had been filed by the appellant, and an additional appeal book had been filed by the respondent. Counsel's error was of no consequence. It was an error and not evidence of corruption.

16          The decisions of Brett J were plainly correct. The appeal against his Honour's decisions is without merit and is dismissed.

17           In addition to seeking to appeal against the decision of the Tribunal, on 25 August 2023 the appellant applied for a review of the Tribunal's decision under the Judicial Review Act 2000. He also

3 No 5/2024

sought an extension of time within which to file the application for review. The decision of the Tribunal having been made on 8 November 2021, the application for review was not filed until 25 August 2023. The applications were listed to be heard before Pearce J on 14 September 2023, but the applicant chose not to appear.

18           In 2022, Pearce J had delivered a decision in related matters, a decision with which the appellant disagreed. In advance of the hearing of the application under the Judicial Review Act, the appellant sought that Pearce J disqualify himself, a request which was declined by Pearce J. The appellant was advised that Pearce J would consider any application advanced by the appellant at the hearing on 14 September 2023. The appellant advised that he would not attend the hearing.

19          No reasonable basis for the recusal application is demonstrated in the papers. His Honour was correct in declining to recuse himself in advance of the hearing.

20   The appellant, having chosen not to appear, Pearce J delivered brief ex tempore reasons:

"I have concluded that this is an appropriate case in which I should exercise the power under the Judicial Review Act, s 38, to dismiss the application. Notice was given to Mr Fitch that he would be given the opportunity to make submissions about whether I should take such a course but he has informed the court that he does not wish to avail himself of that opportunity.

The Judicial Review Act applies only to a decisions of an administrative character. Applications for an order to review of a decision may be made on any one or more of the grounds stated in s 17(2). The ground upon which Mr Fitch relies is the one stated in subparagraph (g), that the decision was induced or affected by fraud.

The material provided to the court by the applicant leads me to conclude that I should, of my own motion, order that the application be dismissed at the earliest appropriate opportunity. This is such an opportunity. It would be inappropriate for the application to extend time to be continued. The same applies to the application for an order of review itself to the extent that Mr Fitch's affidavit constitutes such an application. Mr Fitch's affidavit is lengthy but its content is irrelevant, irrational and scandalous. This court should not entertain the material he wishes to rely on or allow proceedings to persist which provide him with the means of ventilating such material. There is no reasonable basis for his application.

In my view it does not concern an administrative decision. The decision of the Tribunal is not one to which the Act applies. Even if I were to be wrong about that, the claim that a decision of a Commissioner of the Tribunal is tainted by fraud is not only frivolous but is, when it is utterly without foundation, an abuse of process.

Although this court may allow an amendment to specify a difference ground there is no reason to consider, in this case, that any other potential ground of review stated in s 17(2) has any prospect of success whatsoever.

The application to extend time and the application itself are both dismissed."

21           It is unnecessary to canvass the details of the appellant's attack upon the decision of Pearce J, much of which amounts to no more than scandalous assertions without any basis in the evidence or the conduct of the proceedings. Pearce J was correct in declining to recuse himself and in dismissing the applications.

This appeal is also devoid of merit and is dismissed.

Reasons for dismissing interlocutory applications

22 As noted at [4] above, after the hearing of the appeals, the appellant sent a number of emails to the Supreme Court for our attention and these have been considered. Amongst these emails was a

4 No 5/2024

copy of a Supreme Court record of court proceedings before Acting Justice Porter on 18 June 2024 with respect to an application brought by the appellant for a subpoena to issue to the Office of the Health Complaints Commissioner, and also for one to issue to Dr R Doolabh of I-Med Radiology.

23   The record of the order made by his Honour is as follows:

"That the application on matter number 323/2024 dated 15 May 2024 is to be filed
and brought to the attention of those Judges constituting the Full Court."

It transpired that the interlocutory application dated 15 May 2024 was filed but not brought to the
Court's attention, as ordered.

24           At the time that order came to light, this Court's judgment was pending and to be delivered on 9 September 2024. As a consequence of the Court becoming aware of the order, the judgment was not delivered and instead, at the listing on 9 September, the Court thanked the appellant for drawing attention to the order and directions were made that the parties provide written submissions with respect to the application dated 15 May 2024.

25           The appellant was granted 14 days to file written submissions regarding the basis for his interlocutory application and the reasons why he says the order should be made. The respondent was granted seven days to file written submissions in response. It was noted that if any other orders of a judge of this court had been made requiring outstanding applications of the appellant to be heard by this Court, they would be considered if brought to the Court's attention, and the Court would allow the same timeframe to file written submissions with respect to any such application or applications.

26           Subsequently, counsel for the respondent drew the Court's attention to an interlocutory order made by Justice Brett on 18 June 2024 in relation to two applications on two files: 3486/2023 and 2640/2023. The applications were for the provision of reasons from Justice Estcourt and Justice Pearce, respectively. The interlocutory order made by Justice Brett was that: "leave is granted for the applications to be filed and referred to the Full Court in each matter respectively and each be treated as an application for a statement of reasons." In fact, both applications had been filed on 27 May 2024.

27           Evidently, a decision of Justice Estcourt on 3486/2023 has been appealed. The order made by Brett J was for the application with respect to that decision to be listed before the Full Court hearing the appeal from the corresponding decision. The appeal is not before us and indeed, we would not have permitted the appeal to be listed before the Court, constituted as it is. There is no need for this Court to make an order referring the application to the Full Court hearing that appeal as the Registrar is bound to give effect to the interlocutory order of Justice Brett.

28 The decision of Justice Pearce on 2640/2022 has been appealed and the appeal is before us. In accordance with the order of Brett J, the application for reasons to be provided should be determined by us. It should be noted that there is an administrative process for the Full Court to be alerted to, and informed about, a point or question referred to the Full Court hearing an appeal: r 692(3) Supreme Court Rules. Unfortunately, that was not followed in this case. Now that we are aware of the application, it shall be considered in connection with the appeal from the decision of Pearce J.

29           We return then to the interlocutory application dated 15 May 2024 for the issue of subpoenas to be heard at the time of the hearing of the appeal to the Full Court, which is file 323/2024. The Court has a copy of the appellant's interlocutory application on that appeal file and an attached subpoena to produce documents or things to the Office of the Health Complaints Commissioner requiring the production of:

5 No 5/2024

"The full response I-Med Radiology provided the OHCC that I-Med would not authorise the release of pertaining to a Complaint as per an email from Senior Investigation Officer Andrew Muthy dated 27 June 2022.

OHCC Reference #H2202-121"

30          A second subpoena also attached is addressed to Dr R Doolabh of I-Med Radiology. The Schedule of documents provides that Dr Doolabh produce:

"A copy of a Report you done on the 06/09/2021 regarding a Bilateral Shoulder MRI
Scan, re the accompanying Receipt."

It is clear that the subpoenas are sought for the purpose of this appeal and the application should be considered by this Court, in accordance with the order of Porter AJ.

31 In relation to the application for subpoenas to issue, the appellant filed written submissions by email after the listing on 9 September, including submissions made in an affidavit sworn 17 September 2024, and these have been considered. In the affidavit, the appellant makes the point that the subpoena applications have been filed by him pursuant to r 495(5) of the Supreme Court Rules, and therefore the determination should be made in Chambers and not in Court. The interlocutory application is in terms of a "request to have Subpoenas issued pursuant to r 495 of the Supreme Court Rules". Presumably, the Registrar of the Court referred the request to a judge for directions pursuant to r 495(5).

32 Allowing that was the case, a judge has power to refer the application to the Full Court pursuant to r 692(1). The rule states that a judge may refer an appeal, or any point or question arising in an appeal, for determination by the Full Court. Presumably, Porter AJ referred the application to issue subpoenas as a point or question arising in the appeal for determination by this Court. An order pursuant to r 692(1) can be made regardless of whether the application was made to a judge to be heard in Chambers or in Court. Again, unfortunately, the process for the Full Court to be alerted to and informed about a point or question referred to the Full Court hearing an appeal pursuant to r 692(3), was not followed in this case.

33           On 14 October 2024, the appellant sought to file by email a bundle of documents on file 323/2024, which was declined by the Registrar. It is described as: "A simple Folder put together to ideally act as an Appeal to this Full Court to have resolved amicably these what can only be seen as illegal Proceedings occurring in the Supreme Court for what can only be seen as Very Unacceptable Reasons." The appellant seems to be relying on the bundle as a type of "appeal book" for these proceedings, "in an attempt to simplify Matters regarding the above Case# [323/2024]" rather than as submissions, although submissions are included in the documents. While these documents have not been accepted for filing, and fall outside the timeframe allowed for written submissions, they have been read to ensure there is nothing that might advance the appellant's case on the appeals before us such that the bundle of documents should be formally before this Court. There is not.

34           The appellant's submissions that the subpoenas should be issued include the proposition that the two subpoenas "would have realised my Legitimacy but more so the Allegations made against certain Personnel that are responsible for the tampering of my Medical Information that ultimately led to the Dismissal of the Appeal at the Tribunal Level …". The appellant's position is that the subpoenas should issue to enable him to establish his allegation of a radiology report having been fabricated.

35   The argument for the respondent is that:

"The Appellant failed to appear at the hearing of the matter in the Workers Rehabilitation and Compensation Tribunal on 21 September 2021 or obtain the

6 No 5/2024

documents sought on subpoena at the hearing. Pursuant to s 48(3) of the Supreme

Court Civil Procedure Act 1932 such evidence:

'… shall be admitted only by special leave of the Full Court, which shall

only be granted in cases in which –

(a) the evidence was not in the possession of the party seeking to

have it admitted, and could not by proper diligence have been obtained

by him, before the termination of the trial; or

(b) there is some other special circumstance which, in the opinion

of the Full Court, justifies the admission of it'.

36           If the Full Court does not give special leave to admit the evidence sought to be obtained by subpoena, then it cannot be taken into account on the appeal. As noted by the respondent, a critical question is whether the evidence could, by proper diligence, have been obtained by the appellant before the termination of the trial.

37           The respondent's argument should succeed. In view of the circumstances, the threshold for the granting of special leave by this Court would not be met. The material circumstances involve the following. The appellant did not appear at the hearing before the Tribunal and the medical evidence relied upon by the employer was unchallenged. Written submissions were filed on behalf of the employer after the hearing and a copy sent to the appellant to give him an opportunity to respond. The appellant responded in writing and according to the decision, he made submissions that the "medical evidence relied upon by the employer was wrong, and that the worker's conclusion about the appropriate diagnosis of his condition, based on his radiological investigations and the Scholarly Articles that he provided to the Tribunal, was correct": F v George Town Seafoods Pty Ltd [2021] TASCAT 1 at [36]. The Tribunal accepted the employer's medical evidence in its entirety and found against the appellant: at [42].

38          There is nothing to suggest that the evidence now sought to be obtained by subpoena could not, by proper diligence, have been obtained by subpoena at the time of the Tribunal hearing.

39           The fact that the appellant did not participate at the hearing, did not contest the employer's evidence, and did not seek to issue the subpoenas at that time, warrants the dismissal of the applications to have the subpoenas issued. There is no valid justification for the admission of fresh evidence on the appeal. The appellant had the opportunity to produce his own evidence before the Tribunal, and indeed, an indulgence was extended to him and some material received from him, notwithstanding the late stage of the hearing. The time to produce the evidence he relied upon for his case was at the hearing; that was the forum to agitate the issues at stake, and there was ample opportunity for him to pursue the issuing of subpoenas at that time. The application for the subpoenas to issue should be dismissed. To the extent that it is necessary, we direct the Registrar that the subpoenas are not to be issued.

40           As noted, in a second interlocutory application, the appellant applied for an order that Pearce J provide a statement of reasons with respect to his decisions under appeal. However, oral reasons for the decisions were given, and the appellant has the transcript of those reasons. While the reasons are succinct, brevity was appropriate given the circumstances; particularly, that the appellant did not make submissions against an order dismissing the applications, and did not attend the hearing. The reasons are perfectly adequate, revealing the basis upon which Pearce J concluded that an extension for time should not be granted and the application for a review of the Tribunal's decision should be dismissed. The reasons given by Pearce J for his decision that he should not recuse himself, were also adequate given the spurious nature of the application that he should do so. The reasons provided complied with his Honour's obligation to provide sufficient reasons.

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41   For these reasons, we dismiss both interlocutory applications.