Fletcher v TNT Australia Pty Ltd (No 2)

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FEDERAL COURT OF AUSTRALIA

Fletcher v TNT Australia Pty Ltd (No 2) [2014] FCA 981

Citation: Fletcher v TNT Australia Pty Ltd (No 2) [2014] FCA 981
Appeal from: Fletcher and TNT Australia Pty Ltd [2013] AATA 173
Parties: ROBIN FLETCHER v TNT AUSTRALIA PTY LTD, ADMINISTRATIVE APPEALS TRIBUNAL and COMCARE
File number(s): NSD 560 of 2013
Judge(s): BUCHANAN J
Date of judgment: 11 September 2014
Catchwords:

PRACTICE AND PROCEDURE – application for judicial review under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – where applicant fails to prosecute the appeal – where applicant is absent when the appeal is called – whether appeal competent

COSTS – indemnity costs sought against applicant – where offer of compromise made – where unreasonably refused by applicant – where applicant is self-represented
Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Federal Court Rules 2011 (Cth), rr 1.34, 25.01, 25.14, 25.14(2), 33.32, 33.33
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 5A(1)
Cases cited: Fletcher and TNT Australia Pty Ltd [2013] AATA 173
Fletcher v TNT Australia Pty Ltd [2014] FCA 725
Hamod v New South Wales (2002) 188 ALR 659
Manolakis v Carter [2008] FCAFC 183
Ogawa v University of Melbourne (No 2) [2004] FCA 1275
Rahman v Ashpole [2007] FCA 883
Date of hearing: 9 September 2014
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 32
Counsel for the Appellant: The appellant did not appear
Counsel for the First Respondent: Mr P Woulfe
Solicitor for the First Respondent: Moray & Agnew
Counsel for the Second Respondent: The second respondent submitted save as to costs
Counsel for the Third Respondent: Ms D Dinnen
Solicitor for the Third Respondent: Comcare

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 560 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

ROBIN FLETCHER
Appellant
AND:

TNT AUSTRALIA PTY LTD
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

COMCARE
Third Respondent

JUDGE:

BUCHANAN J

DATE OF ORDER:

9 SEPTEMBER 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application filed on 3 April 2013 be dismissed.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 560 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

ROBIN FLETCHER
Appellant
AND:

TNT AUSTRALIA PTY LTD
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

COMCARE
Third Respondent

JUDGE:

BUCHANAN J

DATE OF ORDER:

11 SEPTEMBER 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The applicant pay the costs of the first respondent on a party/party basis up to and including 19 August 2013.

2.The applicant pay the costs of the first respondent on an indemnity basis on and from 20 August 2013.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

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Details
Case
[2014] FCA 981
Decision Date

CaseChat Overview and Summary

In the matter of Fletcher v TNT Australia Pty Ltd (No 2), the applicant, Mr Fletcher, sought judicial review of a decision of the Administrative Appeals Tribunal (AAT) which had dismissed his claim for compensation for an injury he alleged was suffered during his employment with TNT. The AAT had concluded that while Mr Fletcher had suffered an aggravation of a pre-existing back condition, there was no evidence that his employment with TNT contributed to that aggravation. Mr Fletcher’s claim was dismissed on the basis that he had not suffered a disease or aggravation of a disease within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The legal issues the court was required to decide were whether the applicant’s failure to prosecute the appeal rendered the appeal incompetent and whether indemnity costs could be awarded against the applicant. The court held that the applicant's failure to prosecute the appeal did not render it incompetent and that indemnity costs could be awarded against the applicant because he had unreasonably refused an offer of compromise made by the respondent. The court dismissed the application and ordered that the applicant pay the respondent's costs on a party/party basis up to and including 19 August 2013, and on an indemnity basis on and from 20 August 2013.

Orders

Orders of the court

1. The application filed on 3 April 2013 be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. The applicant pay the costs of the first respondent on a party/party basis up to and including 19 August 2013.

2. The applicant pay the costs of the first respondent on an indemnity basis on and from 20 August 2013.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

I indicated in the earlier judgment that I would entertain an application under rule 33.32 and/or 33.33 if the applicant did not comply with the orders which I then made. I am satisfied that I could make an order under rule 33.32 and, if necessary, dispense with the requirements of rule 33.32(2) (see rule 1.34). However, it is sufficient to refer to rule 33.33. It will be apparent from what appears hereunder that the proceedings, in any event, probably faced insuperable problems and were almost certainly misconceived but rule 33.33 suffices as an immediate foundation for the order which I made dismissing the application. Background The applicant, Mr Fletcher, was employed by the first respondent (“TNT”) as a warehouse operator for about five years until 13 August 2010 when he resigned. About one year after resigning his employment, Mr Fletcher claimed compensation for an injury allegedly suffered during his employment with TNT involving his back and neck. The claim was refused and he sought review of the decision by the AAT. The AAT also refused the claim. In its decision (Fletcher and TNT Australia Pty Ltd [2013] AATA 173), the AAT first examined whether Mr Fletcher had suffered a relevant injury within the meaning of s 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”). That inquiry necessitated consideration of whether Mr Fletcher had been subject to a sudden or identifiable physiological change, a disease, an ailment or an aggravation of an ailment. The AAT concluded that Mr Fletcher’s claims for compensation were based on the contention that his employment with TNT aggravated a pre-existing back condition. The AAT accepted that since 2001 Mr Fletcher had, in fact, suffered an aggravation of a pre-existing back condition. Then the AAT turned to examine whether Mr Fletcher’s employment with TNT had caused the aggravation. After examining the available material evidence the AAT expressed the following conclusions: 33.The weight of medical evidence is that the degree of symptoms reported by Mr Fletcher is inconsistent with the findings on clinical examination and the radiological evidence. 34.Drs Castle and Panjratan were unable to identify the cause of Mr Fletcher’s reported symptoms; Dr Carr thought an internal disc was possibly to blame; Dr Schutz thought the most likely cause was mild disc degeneration. While there is a range of medical opinion about the underlying cause of Mr Fletcher’s symptoms, none of the experts have stated that employment with TNT was a contributory factor. Dr Carr, who thought an internal disc disruption might be the cause of Mr Fletcher’s symptoms, did not suggest that that pathology was work related. 35.While I do not accept as claimed by Mr Fletcher for the first time in these proceedings that on occasion he was required to lift parcels of up to 60 kilograms unaided, I accept as conceded by his manager that from time to time parcels weighing more than 30 kilograms found their way into his section. It is not implausible that work of the nature undertaken by Mr Fletcher, which was heavy in nature and involved, among other things, repeated lifting, bending and prolonged standing, could have aggravated Mr Fletcher’s long-standing back problems. While some of the experts thought work of this type made Mr Fletcher vulnerable to back injury and was therefore best avoided, none suggested that this type of work contributed to Mr Fletcher’s underlying back pathology (however described). … 38.While none of the experts are entirely confident about the exact cause of Mr Fletcher’s reported symptoms, in my opinion the most likely cause is, as Dr Schutz believes, minor disc degeneration. There is no evidence to indicate that that degeneration was contributed to, or accelerated or worsened by, Mr Fletcher’s employment. Given the history of a gradual worsening which continued after he left TNT, I could not be satisfied that employment was a significant contributory factor to the symptoms of that condition, or the gradual worsening of the symptoms experienced. 39.Not being satisfied that Mr Fletcher’s back condition or any aggravation of either the condition itself, or its symptoms, were contributed to, to a significant degree, by his employment with TNT, I am unable to find that he suffered a disease, or an aggravation of a disease, for the purpose of s 5B of the Act.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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