Nicholas v Australian Offshore Solutions Pty Ltd
[2017] FCA 1321
•13 November 2017
FEDERAL COURT OF AUSTRALIA
Nicholas v Australian Offshore Solutions Pty Ltd [2017] FCA 1321
Appeal from: Application for extension of time and leave to appeal: Nicholas v Australian Offshore Solutions Pty Ltd [2017] FCA 43 File number: WAD 120 of 2017 Judge: MCKERRACHER J Date of judgment: 13 November 2017 Catchwords: PRACTICE AND PROCEDURE – application for an extension of time and leave to appeal – interlocutory application for dismissal of proceedings pursuant to r 35.32(b) of the Federal Court Rules 2011 (Cth) – where applicant’s application was not served on respondent – where grounds of appeal are not specified Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 44(3)
Federal Court of Australia Act 1976 (Cth) ss 25(2B), 25(2BB)
Seafarers' Rehabilitation and Compensation Act 1992 (Cth) ss 3, 3(c), 66, 66(2)
Federal Court Rules 2011 (Cth) rr 4.12, 35.15, 35.32, 35.32(b), 36.01(2)(c), 36.09
Cases cited: Nicholas v Norwest Shipping [2002] AATA 806
NRJT v Australian Offshore Solutions Pty Ltd [2015] AATA 588
NRJT v Australian Offshore Solutions Pty Ltd [2017] FCA 268
NRJT v Australian Offshore Solutions Pty Ltd [2017] FCA 1322
Date of hearing: 29 May 2017 Registry: Western Australia Division: General Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 52 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Ms AR Aria Retnam Solicitor for the Respondent: Sparke Helmore ORDERS
WAD 120 of 2017 BETWEEN: GRANT NICHOLAS
Applicant
AND: AUSTRALIAN OFFSHORE SOLUTIONS PTY LTD
Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
13 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The application for an extension of time be dismissed.
2.The applicant pay the respondent's costs, to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MCKERRACHER J:
INTRODUCTION
These reasons should be read in conjunction with the reasons in NRJT v Australian Offshore Solutions Pty Ltd [2017] FCA 1322.
In each of these matters, the respondent has sought to dismiss an application or appeal lodged by Mr Nicholas. The Chief Justice has delegated the appeal management to me. In particular, in relation to this interlocutory application, I heard the application pursuant to s 25(2B) and s 25(2BB) of the Federal Court of Australia Act 1976 (Cth), which relevantly provide:
25 Exercise of appellate jurisdiction
…
(2B)A single Judge (sitting in Chambers or in open court) or a Full Court may:
(a)join or remove a party to an appeal to the Court; or
(aa)give summary judgment; or
…
(2BB)An application for the exercise of a power mentioned in subsection (2B) must be heard and determined by a single Judge unless:
(a)a Judge directs that the application be heard and determined by a Full Court; or
(b)the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it is appropriate for it to hear and determine the application.
…
(emphasis added)
After hearing argument in support of the respondent’s application to dismiss Mr Nicholas’ application and appeal, Mr Nicholas explained that he was unable to follow the technical argument. With a view to attempting to assist him, I issued a pro bono certificate under r 4.12 of the Federal Court Rules 2011 (Cth) in the hope that Mr Nicholas may receive some assistance from counsel.
Despite this, no counsel has been forthcoming to assist Mr Nicholas. In recording that, I make no criticism of any counsel. The respondent, nonetheless, is entitled to have its application considered without further delay and in accordance with the Rules and the applicable law. While I infer (from what he has said and the material he has filed) that Mr Nicholas does not fully comprehend the process by which these events have transpired, that is regrettably so for some litigants in person who appear in the courts. While steps have been taken to attempt to assist Mr Nicholas, as with others, it is not appropriate that in circumstances where respondents have acted in accordance with the Rules and the law and usually, after incurring considerable cost in defending their position, that they should be prejudiced by incurring further cost and delay in a litigation which does not conform with the Rules or the law.
BACKGROUND
On 12 May 2014, Mr Nicholas lodged a claim for compensation pursuant to the Seafarers' Rehabilitation and Compensation Act 1992 (Cth) (SRC Act) against the respondent for injuries allegedly sustained during the course of his employment on board the vessel Sapura Kencana Constructor in January 2014 (compensation claim). He alleged that on 29 January 2014, 5 days into his duties, he suffered ‘stress and digestive disruption’ after he was signed off duty by a co-worker when the vessel was laid up at Exmouth in Western Australia. It was common ground that after this sign off incident he was unwell. Mr Nicholas asserts that the sign off incident was ‘fraudulent’. This has been at the heart of his concerns and complaints.
The compensation claim was disputed by the respondent who issued a determination declining the claim on 8 July 2014. On 21 July 2014, Mr Nicholas requested a reconsideration of the determination. On 18 September 2014 that determination was affirmed.
On 25 September 2014, Mr Nicholas applied for review of the respondent's determination relating to the compensation claim (substantive application). The substantive application was heard by the Administrative Appeals Tribunal on 30-31 March 2016 and 1 April 2016.
As part of the substantive application, the respondent requested that Mr Nicholas attend an independent psychiatric assessment in accordance with s 66 of the SRC Act. Appointments were arranged on three occasions; 15 July 2014, 5 August 2014 and 15 December 2014. Mr Nicholas attended none of them.
On 18 December 2014, the respondent also made a determination to suspend Mr Nicholas’ right to claim compensation pursuant to s 66(2) of the SRC Act on the basis that Mr Nicholas did not have a reasonable excuse for failing to attend the three medical appointments.
Mr Nicholas disputed the determination for suspension issued by the respondent and filed a second application for review in respect of his claim (suspension application). This was heard by the Tribunal on 8-9 July 2015 and 10 August 2015. I note that prior to the hearing of the suspension application, Mr Nicholas subsequently attended a medical examination and the suspension was lifted.
On 13 August 2015, the Tribunal made a decision in relation to the suspension application. The Tribunal found that Mr Nicholas did not provide a reasonable excuse for his failure to attend the three medical appointments and determined that the failure to attend constituted an ‘obstruction’ for the purposes of s 66(2) of the SRC Act, thereby suspending Mr Nicholas's entitlement to apply for compensation: NRJT v Australian Offshore Solutions Pty Ltd [2015] AATA 588.
On 3 September 2015, Mr Nicholas lodged an appeal in this Court from the Tribunal’s decision affirming the suspension (suspension appeal). The appeal was assigned proceeding number WAD 511 of 2015. This occurred before the substantive application had been heard by the Tribunal.
On 20 May 2016, the Tribunal made a decision in relation to the substantive application, affirming the respondent's determination. It concluded that Mr Nicholas was not suffering a compensable injury on 29 January 2014 and/or about 12 February 2014 as a result of the sign off incident or otherwise.
On 3 June 2016, Mr Nicholas lodged a second appeal in this Court to appeal the Tribunal’s decision in relation to the substantive application (substantive appeal). The substantive appeal was assigned proceeding number WAD 243 of 2016.
On 1 February 2017, a judge of this Court dismissed Mr Nicholas' substantive appeal and ordered Mr Nicholas to pay the respondent's costs: Nicholas v Australian Offshore Solutions Pty Ltd [2017] FCA 43.
On 21 February 2017, Mr Nicholas lodged an application for an 'extension of time and leave to appeal' in this Court from Nicholas to the Full Court, in relation to the substantive claim which was assigned proceeding number WAD 120 of 2017, being the subject of these reasons.
On 13 March 2017, the same judge of this Court dismissed Mr Nicholas' suspension appeal and ordered the applicant to pay the respondents costs: NRJT v Australian Offshore Solutions Pty Ltd [2017] FCA 268.
On 31 March 2017, Mr Nicholas lodged a notice of appeal from NRJT to the Full Court, in relation to the suspension, which was assigned proceeding number WAD 190 of 2017.
The respondent has not been formally served with either the notice of appeal from NRJT or the application (the subject of these reasons) by Mr Nicholas. The respondent has only become aware of the appeal and application after making enquiries at the Federal Court of Australia on 9 May 2017 and thereafter obtaining the relevant documents from the Registry.
In relation to this application, the respondent submits that:
(a)Mr Nicholas has failed to comply with r 36.01(2)(c) of the Rules by not specifying the grounds relied upon in support of the appeal.
(b)Mr Nicholas has failed to comply with r 35.15 of the Rules by not serving the application on the respondent within two days of filing the application.
(c)There are grounds to dismiss Mr Nicholas’ appeal due to his failure to comply with the Rules, pursuant to r 35.32(b).
These Rules respectively provide:
36.01 Form of notice of appeal
…
(2) The notice of appeal must state:
…
(c)briefly but specifically, the grounds relied on in support of the appeal;
…
35.15 Service of application
A party seeking leave to appeal, or an extension of the time within which to seek leave to appeal, must, within 2 days of filing the application, serve on each person who was a party to, or was given leave to intervene in, the proceeding in the court appealed from, each document filed under rule 35.12 or 35.14.
...
35.32 Dismissing application for want of prosecution
A respondent to an application under rule 35.12 may apply to the Court for an order that the application be dismissed:
…
(b) for an applicant’s failure to comply with these Rules;
…
THE PRIMARY JUDGMENT
The primary judge (at [1]-[3]) of the primary judgment noted that in January 2014, Mr Nicholas was employed as a casual employee by the respondent, on board the vessel. A number of employees, including Mr Nicholas, were due to leave the ship on 29 January 2014 to return home. A ferry was due to pick these employees up from the ship later that day. As a favour to Mr Nicholas and, in order to facilitate his departure, another employee, Mr Ray Isted, signed Mr Nicholas off duty by signing Mr Nicholas' name in the ship's log book. Mr Nicholas complained about Mr Isted's action to the captain. Mr Nicholas duly departed the ship later on 29 January 2014. He returned to the ship on 11 February 2014, but was airlifted off the ship the next day with stomach pain. In March 2014, the respondent offered Mr Nicholas a further period of employment, known as a ‘swing’ on the ship. Mr Nicholas declined the offer. In May 2014, Mr Nicholas lodged a claim for workers compensation under the SRC Act against the respondent claiming the sign off incident had caused him a physical and mental injury. The respondent rejected Mr Nicholas' claim. Mr Nicholas sought a review of that decision by the Tribunal. The Tribunal affirmed the respondent’s decision.
His Honour outlined in detail the subsequent medical history, which followed from this very brief incident. It is unnecessary to repeat it all. There were competing medical views, including one view that there was a possibility that the event had triggered post-traumatic stress disorder and another view from a clinical psychologist that Mr Nicholas was suffering from post-traumatic stress disorder as a result of the sign off incident. His Honour noted that evidence was given before the Tribunal by Dr McDonnell, a general practitioner and two consultant psychiatrists, Dr Eileen Tay and Dr Jane Fitch. The latter two produced expert reports. There was also documentary evidence which included a report from Dr Douglas, a clinical psychologist.
It was noted that the Tribunal had found that the sign off incident was not a malicious act and that after the incident Mr Nicholas had left the ship in a stress free manner, without complaint of injury. He also had returned to duty on the ship on 11 February 2014 without objection. The primary judge recorded further detailed findings of the Tribunal (at [29]-[44]):
·The Tribunal rejected Mr Nicholas’ claim that the alleged digestive disruption and mental injury, namely, post-traumatic stress disorder, was caused by the sign off incident. The Tribunal made this finding on the basis of the nature of the sign off incident, the absence of contemporaneous evidence demonstrating that the sign off incident had caused any injury, and on the expert evidence.
·The Tribunal said that whilst Mr Nicholas was aggrieved by the sign off incident, it did not consider that the nature of the sign off incident was such that it could cause the injury claimed by Mr Nicholas.
·In relation to the lack of contemporaneous evidence, the Tribunal observed that after the sign off incident, Mr Nicholas had left the ship on 29 January 2014 and between that date and his return to the ship on 11 February 2014, there was no complaint made by Mr Nicholas about an injury or an illness arising from the incident.
·The Tribunal went on to observe that when Mr Nicholas did fall ill on 12 February 2014 on the ship, he was seen by the ship’s medical officer who recorded that Mr Nicholas had told him that he had ‘similar episodes 2-3 months back’.
·The Tribunal noted that on 15 February 2014 Dr Baker recorded that Mr Nicholas was unfit for work on the basis of a ‘viral enteritis’ condition and by 18 February 2014, Dr Baker found that Mr Nicholas had fully recovered from that condition and was now fit again to work.
·The Tribunal went on to observe that the first mention of any injury having been caused due to the alleged ‘forgery’ was in the contemporaneous medical notes which Dr McDonnell recorded on 19 March 2014. This was almost two months after the sign off incident.
·The Tribunal also found that there was no contemporaneous evidence to support a finding that Mr Nicholas had suffered an ‘injury’ as defined in the SRC Act on 29 January 2014 and/or about 12 February 2014 ‘arising out of his employment’ as a result of the sign off incident or otherwise.
·The Tribunal found that if Mr Nicholas suffered any disability and/or incapacity it was not as a result of his employment with the respondent. The Tribunal found that there was no causal connection between the alleged injury and Mr Nicholas’ employment with the respondent.
The primary judge also recorded the following medical evidence referred to by the Tribunal:
·The Tribunal referred to what it described as the ‘tentative diagnosis’ of post-traumatic stress disorder by Dr McDonnell, which was reflected in the medical certificate which he issued on 15 April 2014. The Tribunal also referred to the differing opinion of the clinical psychologist, Dr Douglas, namely, that Mr Nicholas did not suffer post-traumatic stress disorder as a result of the sign off incident, or indeed any other form of psychological injury. The Tribunal said that it preferred the opinion of Dr Douglas to Dr McDonnell’s tentative opinion, because Dr Douglas was a specialist psychologist and Dr McDonnell was not.
·The Tribunal also stated that it preferred the evidence of Dr Tay who reviewed Mr Nicholas at the request of the respondent on 12 May 2015. Dr Tay provided a medical report, dated 20 May 2015, based on that review, and a further report, dated 18 November 2015.
·It was Dr Tay’s opinion that Mr Nicholas’ behaviour was to be explained by reference to his anti-social and borderline personality disorder. In relation to the sign off incident, Dr Tay said that Mr Nicholas was entitled to feel angry and have an outburst but these were ‘emotions, not a mental injury and within the bounds of human functioning and reaction’.
·Dr Tay’s evidence differed from that of Dr Fitch who said that Mr Nicholas met the criteria for post-traumatic stress disorder as diagnosed by DSM-V criteria. The Tribunal set out its reasons why it preferred the evidence of Dr Tay to the evidence of Dr Fitch.
·The Tribunal went on to observe that Mr Nicholas had a history of anxiety disorder and stomach ulcers, which it characterised as ‘non-work related pre-existing condition[s]’. The Tribunal considered whether the non-work related pre-existing conditions may have been aggravated or accelerated by the sign off incident for the purposes of the definition of ‘injury’ in s 3(c) of the SRC Act. In this regard, the Tribunal relied upon Dr Tay’s response to a question by Mr Nicholas at the hearing as to whether the sign off incident was a trigger point for an injury. Dr Tay said: ‘I don’t believe you suffered significant psychological injury from that trigger point’.
·The Tribunal also observed that the absence of medical evidence to support a causal nexus between the sign off incident and any underlying conditions further supported its finding that Mr Nicholas had not suffered an aggravation or acceleration of any pre-existing injury.
The grounds of appeal were slightly confused and the primary judge directed Mr Nicholas to file an affidavit setting out the facts on which he relied to support a contention that he was not afforded a fair hearing and a further document identifying the errors of law. Both he and the respondent relied on affidavits.
The primary judge rejected the argument that Mr Nicholas did not have a fair hearing and set out his reasons which for present purposes do not require repetition.
As to the ground of apprehended bias of the Tribunal, the primary judge recorded the law and, in particular, noted (at [71]-[72]):
71 It appears that the persons Mr Nicholas wanted to summons were potential witnesses relevant to the sign off incident. I observe that at the Tribunal hearing, Mr Isted and Captain Breivik provided written statements and gave oral evidence about that event and Mr Morris dealt with it in his witness statement. These persons were among those on the list of persons whom Mr Nicholas wanted to summons. Mr Nicholas did not depose to how he was prejudiced by not being able to lead evidence from the other persons on the list.
72 I, therefore, dismiss Mr Nicholas’ complaint about apprehended bias and, insofar as it was a separate complaint, the Tribunal’s refusal on 4 March 2016 to issue the summonses to the persons referred to in the Tribunal’s order of 4 March 2016.
As to a failure to obtain the ship’s logbook, the primary judge noted that the relevant pages of the ship’s logbook had been produced and became part of the evidence in the Tribunal hearing. The primary judge rejected that complaint.
As to the complaint about the conduct of a Tribunal member during the hearing, the primary judge rejected this complaint which for present purposes does not require amplification.
As to the grounds of appeal alleging errors of law, the primary judge listed the errors of law relied upon by Mr Nicholas (at [82]) being:
(a)the wrong interpretation of the SRC Act;
(b)the cases cited in the decision had no association with the SRC Act other than Nicholas v Norwest Shipping [2002] AATA 806;
(c)the Tribunal member failed to take into consideration the fact that Mr Nicholas had three medical certificates of fitness;
(d)the definition of injury includes an ‘aggravation’ of a pre-existing injury and the Tribunal failed to take this into account;
(e)the Tribunal failed to interpret the definition of ‘aggravation’ and ‘ailment’ in s 3 of the SRC Act;
(f)the Tribunal failed to identify Mr Nicholas as a ‘seafarer’;
(g)the Tribunal wrongly referred to Mr Nicholas’ failure to attend the medical appointments with Dr Terace when that circumstance is the subject of an appeal to this Court;
(h)the Tribunal failed to acknowledge that Mr Nicholas had complied with s 78 of the SRC Act;
(i)the Tribunal failed to acknowledge that there was no definition of ‘pre-existing’ condition defined in the SRC Act.
His Honour rejected those complaints observing (at [84]-[94]) that the manner in which Mr Nicholas had formulated his notice of appeal, had not raised a question of law which complies with s 44(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). This is because, the questions of law which Mr Nicholas has purported to raise are not related to the basis upon which the Tribunal determined the matter below, and/or cannot affect the outcome of the appeal against the Tribunal’s decision.
In relation to the first alleged error of law, Mr Nicholas identified the following sections of law under the heading, ‘Wrong interpretation of the Act’: ss 3, 4(1), 9, 9(2)(b)(i), 66, 78. However, Mr Nicholas did not identify in what respect the Tribunal had misconstrued any of those sections, nor how that misconstruction affected the Tribunal’s decision. The first alleged error did not identify a proper question of law.
As to the second alleged error of law, the Tribunal referred to five other authorities in its decision. The authorities related to the question of the construction of the words, ‘arisen out of, or in the course of, his or her employment’ and contrary to Mr Nicholas’ submission, related in that respect to the proper construction of s 9 of the SRC Act.
As to the third of the alleged errors, the Tribunal did have regard to all of the medical evidence, including the medical examination reports referred to by Mr Nicholas. More particularly, the Tribunal had regard to the fact that Mr Nicholas had not disclosed in those documents that, in 2002, he had been diagnosed as having an adjustment disorder which lasted for about six months.
In relation to alleged errors four and five, the Tribunal did have regard to the fact that an injury could comprise an aggravation of a pre-existing condition. In fact, the Tribunal specifically identified that an ‘injury’ within the meaning of s 3(c) of the SRC Act, could occur by means of an aggravation of an existing physical or mental injury. The Tribunal did not refer specifically to an ‘ailment’, but there was no need for the Tribunal to do so in the context of the case before it.
As to the sixth alleged error, the Tribunal did find that Mr Nicholas was a ‘seafarer’ for the purposes of its decision and also recognised that, at the time of the sign off incident, Mr Nicholas was on a prescribed ship. The question as to whether Mr Nicholas was a ‘seafarer’ within the meaning of the SRC Act was never in dispute.
As to the seventh alleged error, the Tribunal did no more than record the fact that Mr Nicholas had failed to attend the medical appointments with Dr Terace and that the Tribunal had in a separate proceeding, affirmed the respondent’s determination to suspend Mr Nicholas’ access to entitlements under the SRC Act. This statement played no part in the determination made by the Tribunal to affirm the decision under review.
As to the eighth alleged error, the Tribunal did refer to s 78 of the SRC Act. In any event, the question as to compliance with s 78, played no part in the determination of the Tribunal to affirm the decision under review.
As to the ninth of the alleged errors, it was irrelevant to the Tribunal’s decision, that the Tribunal did not acknowledge that there was no definition of ‘pre-existing condition’ in the SRC Act. The Tribunal did consider whether Mr Nicholas may have suffered an ‘injury’ within the meaning of s 3(c) of the SRC Act, on the basis of an aggravation of a pre-existing condition, but dismissed that potential claim on the basis of the evidence.
Mr Nicholas said that his complaint was that the Tribunal had been wrong to find that the sign off incident had not caused him an injury. This complaint is a complaint about the fact finding by the Tribunal and does not give rise to a question of law.
GROUNDS OF APPEAL
As indicated above, Mr Nicholas filed an application for extension of time and leave to appeal. It appears that it has not been served on the respondent, however, it has been filed.
Mr Nicholas does not require leave to appeal as he has an entitlement to appeal as of right without leave. However, in either event, in light of the nature of the respondent’s interlocutory application, I would need to be satisfied that there was some prospect of Mr Nicholas having, at least, arguable grounds of appeal. In the face of a carefully considered decision, an appellant or prospective appellant would need to point to some arguable, specific deficiency.
Accepting entirely that Mr Nicholas suffers from all of the difficulties of any litigant in person, nonetheless, the search for arguable grounds in this instance is not rewarding. His documents are handwritten. The grounds of the application for an extension of time for leave to appeal do not expressly reveal any grounds of appeal, but the grounds of the application are expressed to be as follows (without amendment):
1.Time extension for leave to appleal desicion 1.2.2017 by [the primary judge], WAD/ 243 2016 appleal dismissed
2.SEEKING LEGAL COUNSEL ,ADVICE, FOR APPLEAL DECISION FEDERAL COURT PERTH 1,2,2017 WAD243/2016 [the primary judge]
Mr Nicholas also filed an affidavit in support of what he regarded as being a necessary application which says the following (without amendment):
…
2.I am seeking APPLY for extension of time and leave. to appeal. I have not being able to seek legal assistance being unwell chest infection unable to afford medication Ref to script seeking legal advice. time to extension. and leave to appleal.
3.JWG1A ANNEXURE script for Chest infection.
…
In response to the interlocutory application filed by the respondent that the proceeding be dismissed, Mr Nicholas filed an affidavit in these terms (without amendment):
…
Request the Pro Bono lawyer under Fedral court Rules.
IDiD not get a Fair Hearing under [the primary judge] in my opion. He told me not to put in a Finacial Hardship Form.
2He told me not to OBJect
3.in Reponding to Respondant writen material. No 48 I Read Half a sentecent and was Told to stop. A Book oF at least 160 pages. He Stop the Hearing mumbled somthing and walked away I waited 4 months for a 2 page decision. Break out in Shingles.
AS you can see my Reports oF my Health I don’t understant the complex Fedral courts Rules as I am 20% Permantly impaired. The Respondant and the tribunal took advantage oF me also unreprented.
…
I am Doing my Best to respond to the courts orders Mentally impaired From the Forgery 29.1.14 Dr Douglas Report says 8.9 months Previous 8 months Put me on the Ship 29.1.14 9 Month Puts me on Hoilday Phuket PariNoid Dillusional a mental impairment
…
Proposed ORDERS.
1.I Request my Constitional Rights Section 51(xxxi). THE Right to Rehabiltion and weekly wages under the Seafarer Rehabiltion & Compensation act 1992. Exchanged from 1911 Navigation act Australia. For my mental injury 29.1.14
2.I Request the Phone number dialed at the Hearing in the A.A.T, with [Tribunal members] with the Respondants witness, Ray iSTeD. It will show iF it was a Local number or overseas number. AND his imergration Records on the day oF the Hearing AND the source oF inFormation, THAT he is no longer at sea – and living in ENGLAND. AS the respondant claimed He is in ENGLAND. THIS WILL Prove the Respontdant mislead the tribunal.
3.I Request the Time sHeets oF [the Tribunal member] on the day oF 10.9.15. The day the Hearing was canceled. Due to the member stating sHe was sick. THe Email From melinda custle. 10.9.15. 2.31 pm to me saying Anh u clearly must be Lying about cHealsea being unwell. [CHeaLsea walsH]
4.The Book containing the forgery See 68 ignored
RESPONDENT’S APPLICATION
The respondent’s interlocutory application seeks dismissal of Mr Nicholas’ process pursuant to r 35.32(b) of the Rules or, alternatively, for security for costs of the appeal pursuant to r 36.09 of the Rules.
In oral argument, the point was made that no leave to appeal was necessary, but if the process filed by Mr Nicholas was treated as being a notice of appeal, it would still be necessary for the document to be served, and it was not. More importantly, it will still be necessary for either document to reveal grounds of appeal. In oral argument, a submission was made that there was nothing in the document which could reveal any grounds of appeal.
There was very little more that could be said on the first point, namely, that there was failure to comply with the Rules, due both to non-service and a failure to disclose any grounds of appeal, as the documents set out above spoke for themselves.
MR NICHOLAS’ RESPONSE
The oral submissions by Mr Nicholas are repeated below:
…
MR NICHOLAS: Where do you start with all that, your Honour? ..... whatever they’re saying there. Now I’m struggling. I’m smoking butts, your Honour. That was to keep me – food in me belly. All the medication and everything else which I’ve stated in the affidavit, your Honour. And to me to reply to all that, as I’ve stated in me affidavit, I’ve been mentally ill since the forgery. And they’ve taken advantage of that. The Tribunal and the respondents. And I ask – request for a pro bono. And last time you said you didn’t have anything in front of you with my medical status at the moment. But now you do with the affidavit, your Honour, and that – Centrelink medicals. And that’s what I asked last time, the court recognise my mental impairment as to understanding all these court rules and what the jibber-jabber they’re going on about. You know? They’re not sticking to the legislation, which is – under the Constitution my rights to section 51(xxi), the rights to rehabilitation and weekly wages, under the Seafarer’s Rehabilitation and Compensation.
Because when they sold it to the parliament, that was the deal. In exchange for our compensation to being rehabilitated. And that has been denied me all along. And if I could get some orders in, that would be – I’ve stated them in the affidavit there. The phone number dialled to Ray Isted on the day at the Tribunal, because I’ve been informed by my union members that he has been here all the time, and he was down the road – just down here when the Tribunal was going on. So that would prove that. And his immigration records, and the phone number – the text that he sent me, he denied sending it at the Tribunal, but it’s in his name, so who else would know that? And the timesheets of Member Walsh on that day. So she was said was sick, and I was all nervously over the phone, call come through. Said she was sick and I said right. That afternoon I received that email, which I – you can see in the affidavit. Your Honour, you read that one?
HIS HONOUR: Yes.
MR NICHOLAS: And that don’t do your mental health any good, you know. So if someone is lying there. why would they say that? Why would they send that to me, you know? But ..... to respond to all what they’re saying ..... cost, I ask for a stay of execution there with the cost reserved because I can’t afford anything at the moment, and I’m down to $10, now. Got me – put me money into coming up here. And they reply to that pro bono, before I can reply to all that jibber-jabber. How was that, your Honour.
…
This was no satisfactory response to the complaints of lack of service or the more substantive complaint of the lack of any grounds of appeal. Even if such matters that were so addressed orally in this fashion revealed arguable grounds, they were not reflected in anything that had been filed by Mr Nicholas.
CONCLUSION
In all those circumstances, despite the fact that Mr Nicholas has had difficulty in understanding the process, the respondent is entitled to the benefit of finality in what is, in substance, pointless but costly litigation. Mr Nicholas had a full hearing in the Tribunal. He has had the benefit of a considered judgment by the primary judge and he has disclosed no arguable grounds of appeal. In those circumstances, I would dismiss the application for an extension of time for leave to appeal or, alternatively, appeal and award costs in favour of the respondent.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 13 November 2017
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