Guse v Comcare

[2000] FCA 678

FEDERAL COURT OF AUSTRALIA

Guse v Comcare [2000] FCA 678

JACEK GUSE v COMCARE

NG 1402 OF 1998

EINFELD J
5 MAY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1402 OF 1998

BETWEEN:	JACEK GUSE Applicant
AND:	COMCARE Respondent

JUDGE:	EINFELD J
DATE:	5 MAY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The respondent has moved by motion dated 23 March 2000 for a dismissal of the proceedings on the grounds set out in the affidavit of James Hutton Heard of the same date.  Mr Heard is a solicitor in the office of the Australian Government Solicitor who has conduct of the matter on behalf of Comcare, the respondent.

2. The current proceeding, that is, NG 1402 of 1998, is an appeal by the applicant from a decision of the Administrative Appeals Tribunal given on 24 November 1998 that the applicant’s appeal to it from the respondent’s decision to terminate compensation payments be dismissed because of his failure to comply with the directions of the Tribunal that he produce certain documents to it.  As Mr Heard’s affidavit relates, following upon a notice of appearance having been filed, the appeal came before this Court on 28 January 1999 for directions and the Court gave certain directions including that the applicant file and serve full written argument in support of his appeal by 4pm on Friday 26 February 1999. 

3. The purpose of short-circuiting the matter by taking the submissions in advance of the preparation of formal appeal papers was to see what the substance of the appeal was, in order to avoid, so far as appropriate, unnecessary costs being incurred in the preparation of the appeal.  It was in the interests of the applicant that it be done that way because he would have carried the responsibility of producing the appeal papers, and as he is a person, he says, of limited means, I was anxious to save him expenditure beyond his means. 

4. The applicant has failed to file and serve any such document despite the passage of some 17 months and a number of requests that he do so, some of which were ignored while others prompted unhelpful and unco-operative, even contemptuous, responses.  The most relevant of the requests was a letter to the applicant from the Australian Government Solicitor dated 28 May 1999 pointing out that this motion for summary dismissal was in preparation because of non-compliance with the direction.  The applicant has still not filed any such submission.

5. During the course of the motion today, the applicant cross-examined Mr Heard on his affidavit but I have not found any of the cross-examination particularly helpful in the resolution of the issues before the Court.  In circumstances to which I shall come, whilst Mr Heard was still in cross-examination, the applicant asked me to disqualify myself from the hearing of this matter.

6. The dispute between the applicant and the respondent goes back a number of years and a short history has been provided by the respondent for the purpose of the hearing today which I will admit as Exhibit A4.  The applicant objected to the document but when I asked him what there was in it that was incorrect, the only specific matter that he could point to was an incorrect date in paragraph 5.  I have added to the document in my handwriting the date suggested as appropriate by Mr Guse.  So far as I can see, that inaccuracy, if that is what it is, does not affect the overall thrust of the document or the outcome of the motion.

7. The arguments put by the applicant in support of my disqualifying myself were, first, that in giving the directions of 28 January, I provided that the applicant had first to serve his written argument before the respondent and, therefore, that the respondent would have an opportunity to see the argument before it had to present its own.  This is, of course, a perfectly normal and common procedure and the appropriate course to take in an appeal.  Moreover, there are no “secret” arguments in this litigation where all the facts and contentions are well known.  There is no substance in the application that I should disqualify myself on that ground.

8. A second matter of alleged bias was that there was no provision for a reply by the applicant to the respondent’s argument.  This of course was omitted because this whole procedure was preliminary, the intention being, as was made clear at the time, that after the parties had submitted their primary written arguments, there would be an opportunity for an oral hearing during which time any appropriate cross-examination or arguments in reply by either side would have been heard.  In any event no objection to the directed procedure was taken at the time or in the 15 or so subsequent months despite the applicant’s obvious ability to take all and any points to frustrate the matter that he could think of.  In those circumstances there is no substance to the application that I should disqualify myself on that ground either. 

9. There was also reference in cross-examination to an order that I made back in 1994 in respect to an earlier proceeding between the applicant and the respondent.  I do not recall the events of that time but they have nothing to do with the application now brought by the respondent and need not therefore be further addressed.

10. Another ground suggested for bias was that when the Administrative Appeals Tribunal transmitted its documents to the Federal Court as provided by Order 53, rule 10(1), and when the list prepared by the Court pursuant to Order 53, rule 10(3) was prepared, it should have been obvious to me that the appeal of the applicant had to succeed and that the attitude of the Tribunal was indefensible.  Accordingly, my failure to dismiss the respondent’s opposition out of hand without a hearing or the preparation of any material or listening to the parties, was an indication of bias.

11. There is no provision in the Rules of Court for the summary upholding of an appeal in the face of opposition.  Of course there has never been an application that I should uphold the appeal without argument but even if it had been made, it is simply not legally available.  The  Court can dismiss a proceeding summarily on motion supported by affidavit and the only motion filed in this case has been the present one to dismiss the appeal.  Of course if the applicant has filed the written submissions as directed, and they had been persuasive, I may have been able to persuade the respondent to agree to the appeal.  As it is, the matter has never been considered.

12. I am bound by well established authority not to disqualify myself unless a party brings appropriate evidence of a serious kind that might suggest to a reasonable objective observer that I could not bring an open and unbiased mind to these proceedings.  No such evidence has been presented.  I therefore did not accede to the application for disqualification.

13. I then heard the submissions of the applicant in response to the motion itself.  Some of the submissions bordered on offensive, no doubt deliberately so.   The applicant appeared to argue that the motion should not be granted because the Court has indulged the respondent in some undefined way which suggests that he has not been treated fairly.  There is no substance to this proposition.  An argument was next advanced that it is beyond the powers given in the Court rules to order written argument in support of his appeal and that only written submissions are permitted.  I pointed out in the course of the hearing and state again that there is no relevant distinction between submissions and argument and in any event the Court is clothed with complete powers under the Act to give a direction of the kind given.  Furthermore, the applicant was given many opportunities to file whatever he wanted but either ignored the opportunities or invented a spurious reason for delay.  This argument fails.

14. The rest of the argument was somewhat disparate.  As the history document Exhibit A4 shows, the whole of the applicant’s situation has been brought about by his refusal to produce various documents and information required by the Administrative Appeals Tribunal over a number of years.  The applicant drew my attention to the fact that one of the requests required him to supply tax returns and other material going back to 1981.  He alleged that when that particular matter first came before the Court many years ago, I said to the representative of Comcare words to the effect that it was completely unreasonable to require somebody in 1994 or 1995 to produce material going back so long.  I do not recall that incident but assuming that it occurred, it of course did not mean, and I did not say, that no documents at all needed to be supplied.  The point presumably being made was just that asking somebody to supply material going back so long was burdensome and likely to be impossible to comply with.  Ordinary citizens are not like large bureaucracies who file papers away carefully so that they can produce them 15 years and more later.

15. On the other hand, the applicant knew very well that the respondent was seeking to investigate the possibility that he may not have been entitled to compensation because he had been earning moneys which he had not disclosed and undertaking employment which he had not brought to its attention.  It would have been simple, if it were the fact, for him to establish that he had not been earning additional money or undertaking additional employment by the production of any tax returns that he happened to have available at the time.  He could even have done so today.  He chose, as he has always chosen, to produce and say nothing of substance on this issue.

16. The matter before this Court today is simply the non-prosecution of the appeal against the Tribunal’s decision of 24 November 1998.  Despite not having complied with the direction given on 28 January 1999 for written argument, the applicant was given an opportunity today to put his argument orally and invited to argue his case for the upholding of the appeal against the Tribunal’s decision of 24 November 1998.  He presented no argument at all, preferring to resort to contemptuous and offensive remarks no doubt designed to provoke a peremptory reaction from the Court.  I will have the transcript of today’s proceedings taken out so that his behaviour can be preserved.

17. If the applicant did not want to file written argument to save himself the trouble and costs of preparing the official appeal papers, all he needed to do was to notify the Court that that was his preference and to prepare the appeal papers in consultation with the Registry as provided by the rules.  Instead, he has done neither of those things, and even to this very day has still not explained why he has refused to comply with the Tribunal’s ruling and directions which prompted its dismissal of his claim of compensation.

18. It is clear that he has nothing to put to the Court in support of his appeal and that it has no substance.  That circumstance leaves me with no option but to grant the motion as requested and dismiss the appeal against the decision of the Administrative Appeals Tribunal of 24 November 1998 for want of prosecution.

    [DISCUSSION]

19. I dismiss the appeal with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO.

Associate:

Dated:             5 May 2000

The Applicant appeared in person.
Solicitor for the Respondent:	Mr J. Heard of the Australian Government Solicitor
Date of Hearing:	5 May 2000
Date of Judgment:	5 May 2000