Guse v Comcare - [1997] FCA 961

CATCHWORDS
ADMINISTRATIVE LAW - power of Administrative Appeals Tribunal to dismiss an application for non-compliance with a direction - whether the decision to dismiss can be made conditionally at the time of giving the direction - nature of the discretion - whether Applicant entitled to opportunity to be heard before dismissal of his application - natural justice.
Administrative Appeals Tribunal Act 1975, s 42A(5)
Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52
Tanos v The Commissioner of Police (1958) 98 CLR 383
JACEK GUSE -V- COMCARE
NG 626 of 1995
Burchett J
Sydney
5 June 1997

IN THE FEDERAL COURT OF AUSTRALIA     )
  )
NEW SOUTH WALES DISTRICT REGISTRY    )          No. NG 626 of 1995
  )
GENERAL DIVISION  )
ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:              JACEK GUSE

Applicant

AND: COMCARE

Respondent

CORAM:       Burchett J
PLACE:        Sydney
DATE:           5 June 1997
REASONS FOR JUDGMENT
BURCHETT J:
On 4 June 1997, I made orders in this appeal on a point of law from the Administrative Appeals Tribunal, allowing it with costs, setting aside the order of the Tribunal, which had dismissed the applicant’s proceeding under s 42A(5) of the Administrative Appeals Tribunal Act 1975, and remitting the matter to the Tribunal, differently constituted, to be dealt with according to law. I reserved my reasons, which I now deliver.

The case has an extremely unfortunate history. Mr Guse sustained a whiplash injury on 21 April 1982, in respect of which it was

initially accepted that he was entitled to compensation under the provisions of the legislation then in effect, the Compensation (Commonwealth Government Employees) Act 1971. That Act has since been replaced by the Safety, Rehabilitation and Compensation Act 1988. Mr Guse’s original claim was made on 18 May 1982, but a further claim for partial incapacity was made on 13 August 1987, in which Mr Guse sought compensation for impairment of his earning capacity as a pianist, a capacity additional to that exercised by him in his Commonwealth employment at the time of his injury. Determinations and redeterminations followed, culminating in an application to the Administrative Appeals Tribunal, made on 3 August 1992 and decided on 19 November 1993. Comcare appealed to this Court against that decision, and Mr Guse cross-appealed. On 5 July 1994, Einfeld J set aside the decision, remitting the matter to the Administrative Appeals Tribunal. A number of interlocutory hearings followed.

From 8 March 1995, Comcare appears to have been attempting to obtain from Mr Guse, by summons in the nature of a subpoena, employment records and tax material going back to 1 January 1981. However, the summons first issued appears to have been irregular. Apart from the irregularity of the summons, Mr Guse relied on arguments about the relevance of the documents, which were simply wrong. Unfortunately, although at times he had legal advice, at other times Mr Guse appeared for himself. His intelligence and articulateness do not compensate for lack of understanding of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1997] FCA 961
Decision Date: 5 JUNE 1997

CaseChat Overview and Summary

The applicant, Mr. Guse, brought an appeal against a decision by the Administrative Appeals Tribunal to dismiss his application for compensation for a whiplash injury he sustained in 1982. The Tribunal's decision to dismiss the application was based on Mr. Guse's failure to comply with a direction to produce certain documents within a specified time frame. The primary issue before the Court was whether the Tribunal had the power to dismiss an application conditionally at the time of giving the direction, and if not, whether Mr. Guse was entitled to an opportunity to be heard before his application was dismissed. The Court considered the relevant statutory provision, section 42A(5)(b) of the Administrative Appeals Tribunal Act 1975, and the principles of natural justice.

The Court held that the Tribunal did not have the power to dismiss an application conditionally at the time of giving a direction, and that the provision should be exercised sparingly and only as a last resort. The Court found that the Tribunal had failed to exercise its discretion in light of the circumstances of Mr. Guse's non-compliance, and had instead followed a predetermined procedure. The Court further held that the principle of natural justice required that Mr. Guse be given an opportunity to be heard before his application was dismissed, regardless of whether he could show that such an opportunity would have proved fruitful.

The Court allowed Mr. Guse's appeal and set aside the Tribunal's order dismissing his application. The matter was remitted to the Tribunal, differently constituted, to be dealt with according to law. The Court also made orders for costs.

In conclusion, the Court found that the Tribunal had erred in law by dismissing Mr. Guse's application without giving him an opportunity to be heard, and that the dismissal was not in accordance with the principles of natural justice. The Court allowed Mr. Guse's appeal and remitted the matter to the Tribunal for further consideration.

Orders