Nicholas v Australian Offshore Solutions Pty Ltd
[2017] FCA 43
•1 February 2017
FEDERAL COURT OF AUSTRALIA
Nicholas v Australian Offshore Solutions Pty Ltd [2017] FCA 43
Appeal from: Applicant v Australian Offshore Solutions Pty Ltd [2016] AATA 331 File number(s): WAD 243 of 2016 Judge(s): SIOPIS J Date of judgment: 1 February 2017 Catchwords: ADMINISTRATIVE LAW – the Administrative Appeals Tribunal (the Tribunal) affirmed a decision to refuse a workers compensation claim under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) – appeal on a question of law under s 44(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) – whether the Tribunal hearing was fair – whether the notice of appeal disclosed questions of law within the meaning of s 44(3) of the AAT Act. Legislation: Seafarers Rehabilitation and Compensation Act 1992 (Cth) ss 3(c), 9, 66(2), 78
Administrative Appeals Tribunal Act 1975 (Cth) ss 44, 44(3)
Cases cited: Nicholas v Norwest Shipping [2002] AATA 806
Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315
Comcare v Mooi (1996) 42 ALD 495
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
Michael Wilson & Partners v Nicholls (2011) 244 CLR 427
Date of hearing: 11 October 2016 Registry: Western Australia Division: General Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 95 Counsel for the Applicant: The applicant appeared in person. Counsel for the Respondent: Ms R Aria-Retnam Solicitor for the Respondent: Jarman McKenna
Table of Corrections 2 February 2017 In paragraph 66, “would not” has been replaced with “might not reasonably”. ORDERS
WAD 243 of 2016 BETWEEN: GRANT NICHOLAS
Applicant
AND: AUSTRALIAN OFFSHORE SOLUTIONS PTY LTD
Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
1 FEBRUARY 2017
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The applicant is to pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SIOPIS J:
In January 2014, Mr Grant Nicholas was employed as a casual employee by the respondent, Australian Offshore Solutions Pty Ltd (AOS), on board a ship, MV “Sapura Kencana Constructor”. 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, AOS 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 Seafarers Rehabilitation and Compensation Act 1992 (Cth) (the SRC Act) against AOS claiming the sign off incident had caused him a physical and mental injury.
AOS rejected Mr Nicholas’ claim. Mr Nicholas sought a review of that decision by the Administrative Appeals Tribunal (the Tribunal). The Tribunal affirmed AOS’ decision.
Mr Nicholas now appeals to this Court on questions of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
BACKGROUND
As mentioned, in January 2014, Mr Grant Nicholas was employed on a casual basis by AOS as an “integrated rating” on board the ship, MV “Sapura Kencana Constructor”.
On 29 January 2014, the ship was laid up in Exmouth, Western Australia. A number of employees, including Mr Nicholas, were due to leave the ship on that day. Before leaving the ship, it was necessary for the departing employee to sign the ship’s log book indicating that the employee was going off duty. On that day, Mr Ray Isted, an employee, who was also leaving the ship that day, as a favour to Mr Nicholas, signed Mr Nicholas’ signature adjacent to Mr Nicholas’ name on the ship’s log book, thereby signing Mr Nicholas off duty. Mr Nicholas was below deck at the time. When Mr Nicholas found out what had happened, he objected to Mr Isted’s action and made his displeasure known to the captain. However, Mr Nicholas then later in the day departed the ship.
Mr Nicholas reboarded the ship on 11 February 2014. On 12 February 2014, Mr Nicholas became ill with fever and vomiting and was flown off the ship. After Mr Nicholas became ill on the ship, and before he was airlifted off the ship, the ship’s medical officer attended to Mr Nicholas. The ship’s medical officer recorded that Mr Nicholas had told him that he had suffered from similar episodes two to three months previously.
On 15 February 2014, Dr David Baker certified Mr Nicholas’ unfit for work from 15 February 2014 to 18 February 2014 due to the medical condition of “viral enteritis”. On 18 February 2014, Dr Baker certified Mr Nicholas as having recovered and being fit to return to work.
On 7 March 2014, AOS offered Mr Nicholas a further “swing”. However, by email to AOS, dated 18 March 2014, Mr Nicholas declined the offer, citing ill health. In the email Mr Nicholas stated:
Also the fraud with my name being signed wirhout [sic] my knowledge. This cannot go unanswered. I [sic] thinking any person does not want to [sic] some other person signing there [sic] name its not right its fraud. And I want an answer.
On 19 March 2014, Dr Eoin McDonnell, a general practitioner, signed a certificate saying that Mr Nicholas was unfit for work from 16 March 2014 to 2 April 2014 due to a “medical condition”. Dr McDonnell’s notes from his consultation with Mr Nicholas on 19 March 2014 refer to Mr Nicholas mentioning the “forgery” of his name in the ship’s log book.
On 31 March 2014, Dr McDonnell signed another certificate certifying Mr Nicholas was unfit for work from 31 March 2014 to 18 April 2014 due to a “medical condition”.
On 15 April 2014, Dr McDonnell certified Mr Nicholas unfit for work from 15 April 2014 to 11 June 2014 due to:
Stress and probably PTSD [post-traumatic stress disorder] following an incident at work on a ship in January 2014 when his name was fraudulently signed in the ship’s log.
On 12 May 2014, Mr Nicholas lodged a claim for workers compensation under the SRC Act with AOS.
In the claim form, in response to the question: “What is the nature of the injury or illness you are claiming for?”, Mr Nicholas answered: “Stress and digestive disruption.” In response to the question: “What part(s) of your body were injured?”, Mr Nicholas answered: “Brain and digestive system.”
On 8 July 2014, AOS declined Mr Nicholas’ claim for workers compensation. AOS stated that there was no medical or factual evidence to suggest that Mr Nicholas had suffered a stress and digestive disruption injury during the course of his employment with AOS.
On 21 July 2014, Mr Nicholas requested a review of AOS’ decision. In July and August 2014, AOS asked Mr Nicholas to attend appointments with Dr Lawrence Terace, a consultant psychiatrist. Mr Nicholas did not attend the appointments.
On 27 August 2014, Dr Bill Douglas, a clinical psychologist, reviewed Mr Nicholas following a referral from Dr McDonnell. In his report, dated 27 August 2014, Dr Douglas stated:
I have told [Mr Nicholas] that I don’t believe that firstly, he suffers from a Post‑Traumatic Stress Disorder as a result of this event [ie the sign off incident] or indeed any other form of psychological injury. Secondly, I have told him that I don’t believe that any court would accept that this type of incident would cause any such injury.
I think that he has been developing a thought disorder at least over this last eight or nine months and it would seem to me that he has not only been paranoid, but also somewhat delusional.
On 18 September 2014, AOS affirmed its determination of 8 July 2014 refusing Mr Nicholas’ claim for compensation. Further, by reason of Mr Nicholas’ failure to attend the medical appointments with Dr Terace, AOS also, under s 66(2) of the SRC Act, determined to suspend Mr Nicholas’ rights to claim benefits under the SRC Act until “an examination takes place” (the suspension determination).
On 25 September 2014, Mr Nicholas applied to the Tribunal for a review of AOS’ decision not to accept Mr Nicholas’ claim for workers compensation. I observe in passing that Mr Nicholas, also, challenged in a separate proceeding in the Tribunal, the suspension determination. On 13 August 2015, the Tribunal affirmed AOS’ suspension determination.
During the period 30 March 2016 to 1 April 2016, the Tribunal conducted the hearing of Mr Nicholas’ application to review AOS’ decision to reject his claim for workers compensation.
On 20 May 2016, the Tribunal affirmed AOS’ decision under review.
On 3 June 2016, Mr Nicholas lodged in this Court an appeal on questions of law under s 44(3) of the AAT Act.
I observe, in passing, that Mr Nicholas’ claim for workers compensation against AOS was not the first claim which Mr Nicholas had brought against an employer in which he had alleged that he had suffered a mental injury in the course of his employment on a ship. In 1999, Mr Nicholas lodged a claim for compensation under the SRC Act against Norwest Shipping in respect of a mental injury, namely, an adjustment disorder which he alleged he suffered in November 1998 in the course of his employment on board the ship, MV “Sina”. The Tribunal also found in that case that Mr Nicholas had suffered an adjustment disorder which had lasted for six months (Nicholas v Norwest Shipping [2002] AATA 806 (Norwest Shipping)).
THE TRIBUNAL’S DECISION
At the hearing, the Tribunal received evidence in relation to the sign off incident and also expert opinions in relation to Mr Nicholas’ medical condition.
In relation to the sign off incident, there were witness statements before the Tribunal from Mr Nicholas, Mr Ray Isted, Captain Trond Breivik and Mr John Morris, a member of the crew on the ship. Also, the following persons gave oral evidence in relation to that incident: Mr Nicholas, Mr Ray Isted, Captain Trond Breivik, Mr John Morris and Mr John Frewin, also a crew member. Other than Mr Nicholas, each of these persons gave evidence by telephone.
In addition, the following persons gave oral evidence in relation to Mr Nicholas’ medical condition: Dr Eoin McDonnell, a general practitioner; and consultant psychiatrists, Dr Eileen Tay and Dr Jane Fitch. Each of Dr Tay and Dr Fitch produced expert reports.
There was also documentary evidence which included the report from Dr Douglas, the clinical psychologist, referred to earlier.
The Tribunal found that the signing of Mr Nicholas’ name in the ship’s log book by Mr Isted on 29 January 2014 was not a malicious act, and that after the incident on that day Mr Nicholas had left the ship in a “stress free manner and without complaint of injury”. The Tribunal also observed that Mr Nicholas had returned to duty on the ship on 11 February 2014 without objection.
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.
The Tribunal found that there was no contemporaneous medical 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, as a result of the sign off incident or otherwise.
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 month back”.
Further, said the Tribunal, 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, said the Tribunal, 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 Nicolas suffered any disability and/or incapacity it was not as a result of his employment with AOS. There was, said the Tribunal, no causal connection between the alleged injury and Mr Nicholas’ employment with AOS.
The Tribunal also referred to the medical evidence.
First, 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 AOS 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, said Dr Tay, 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.
APPEAL ON QUESTIONS OF LAW
The questions of law in Mr Nicholas’ notice of appeal, dated 3 June 2016, were stated as follows:
1.Does the decision to affirm coincide with the legislation and rules and regulations of Seafarers Rehabilitation and Compensation Act 1992 (Cth)?
2. Was the applicant subject to a fair hearing?
In the case of Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315 at [62], the Full Court of this Court observed that:
(1)The subject matter of the Court’s jurisdiction under s 44 of the AAT Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law.
(2)The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal.
(3)The Court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under s 44.
(4)Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the Court by s 44(3) to hear and determine appeals instituted in the Court in accordance with s 44(1), but to the exercise of that jurisdiction.
(5)In certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal.
(6)Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form.
(7)A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law.
(8)The expression “may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal” in s 44 should not be read as if the words “pure” or “only” qualified “question of law”. Not all so-called “mixed questions of fact and law” stand outside an appeal on a question of law.
…
In order to understand the content of Mr Nicholas’ appeal on questions of law, at a directions hearing on 19 July 2016, I made an order that Mr Nicholas file an affidavit setting out the facts upon which Mr Nicholas relied to support his contention that he was not accorded a fair hearing; and a further document which identified the errors of law upon which he relied in support of his contention in para 1 of his notice of appeal.
In response to the orders made on 19 July 2016, Mr Nicholas filed what purported to be an affidavit, dated 18 August 2016. Mr Nicholas also filed a document which purported to set out the errors of law which he alleged were made by the Tribunal.
On 1 September 2016, the respondent filed an affidavit of Ms Susan Catherine Wilkinson, a solicitor in the firm of solicitors representing AOS, which responded to the materials filed by Mr Nicholas on 18 August 2016.
Each of the parties relied upon the affidavits at the hearing.
THE DENIAL OF FAIR HEARING GROUND
I deal first with Mr Nicholas’ claim that he was denied a fair hearing.
A document annexed to Mr Nicholas’ affidavit of 18 August 2016, referred to nine matters which he relies upon to demonstrate that he did not get a fair hearing before the Tribunal.
The first two matters referred to conversations between Mr Nicholas and members of the registry staff at the Tribunal, in relation to his dealings with the Tribunal’s registry. Those conversations are, plainly, irrelevant as to whether the hearing before the Tribunal was fair or not.
The third matter referred to the fact that an unspecified hearing of the Tribunal was cancelled due to one of the Tribunal members, Senior Member Walsh, being sick. The complaint is that Mr Nicholas was only notified five minutes before the hearing of the cancellation. These circumstances do not demonstrate that Mr Nicholas did not receive a fair hearing before the Tribunal.
The fourth matter relied on, appears to allege apprehended bias. Mr Nicholas said that he was at an interlocutory hearing before Senior Member Walsh and that he had his head down, whilst he was writing out a summons for the issue of a subpoena. Mr Nicholas went on to say that when he looked up, he saw “the member shaking her head left to right meaning NO, the member was facing the respondent[’s] lawyers, as she was jestering [sic] to them”.
Mr Nicholas went on to complain that later that afternoon, Senior Member Walsh cancelled his summonses for subpoenas for “key people involved in the forgery of his name”. I will deal with this complaint later in these reasons.
The fifth matter referred to a conversation between a member of the Tribunal’s registry staff and Mr Nicholas about emails Mr Nicholas had written to the Tribunal’s registry. Mr Nicholas did not demonstrate how this conversation rendered the Tribunal hearing unfair.
The sixth matter is an allegation that the registrar of the Tribunal did not obtain from AOS, the “sign on, sign off book” and ignored the Tribunal’s request to do so. I will deal with this allegation later in these reasons.
The seventh matter complained that Senior Member Walsh, during the Tribunal hearing, “ignored my objections in the hearing” and threatened me with gaol and 60 penalty points “for me trying to defend myself”. I will also deal with this allegation later in the reasons.
The eighth matter relates to the conduct of Deputy President Kendall at a hearing of the Tribunal in relation to the decision to suspend Mr Nicholas from claiming compensation. This was a separate hearing in a different proceeding before the Tribunal. The incident is, therefore, irrelevant to Mr Nicholas’ complaint that the hearing before a differently comprised Tribunal was unfair.
The ninth matter is that the Tribunal in its reasons cited the case of Norwest Shipping but failed to cite the case of Comcare v Mooi (1996) 42 ALD 495 (Mooi). This is not a complaint which goes to the fairness of the hearing and, in any event, does not otherwise constitute a valid question of law, since the failure to cite Mooi had no potential bearing on the outcome of the proceeding.
Apprehended bias
I now deal with Mr Nicholas’ complaint of apprehended bias.
I have understood Mr Nicholas’ complaint to be that Senior Member Walsh showed partiality by shaking her head and gesturing to AOS’ lawyers. Ms Wilkinson gave evidence that Senior Member Walsh never gestured to the respondent’s lawyers.
For there to be disqualifying apprehended bias in administrative proceedings, the impugned conduct of the administrative officer must be such that a hypothetical fair minded lay person who is properly informed as to the nature of the proceedings, might reasonably apprehend that the officer might not bring an impartial mind to the resolution of the question to be decided (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425).
The making of an allegation of apprehended bias requires the person making the allegation to adduce evidence of the facts and circumstances said to give rise to the apprehension. In Michael Wilson & Partners v Nicholls (2011) 244 CLR 427, the High Court (Gummow A‑CJ, Hayne, Crennan and Bell JJ) explained at [67]:
[A]n allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the [decision maker] might not bring an impartial mind to bear upon the issues that are to be decided.
On the evidence, it is apparent that whatever conduct the Tribunal member engaged in, it was not perceived or understood by the respondent’s lawyers to be gesturing to them. I find that the Tribunal member did not gesture to the respondent’s lawyers. Further, I find that even if the Tribunal member did shake her head, as alleged by Mr Nicholas, a fair minded lay observer might not reasonably have apprehended from that single incident that the Tribunal member might not bring to bear an impartial mind to the resolution of Mr Nicholas’ case.
Ms Wilkinson also gave evidence which put into context Mr Nicholas’ statement that, later that day, Senior Member Walsh cancelled Mr Nicholas’ summonses for key persons to give evidence.
Ms Wilkinson deposed that in February 2016 and March 2016, Mr Nicholas filed a number of requests for summonses to be issued to persons to attend to give evidence at the hearing, but did not provide the details of the proposed witnesses or the reason for wanting to call the persons in question to give evidence.
Ms Wilkinson attached to her affidavit a letter which had been written to Mr Nicholas by the Tribunal on 26 February 2016 stating that the summonses which he had filed with the Tribunal on 25 February 2016, did not contain the correct full names and addresses of the persons Mr Nicholas was seeking to summons to give evidence. The letter went on to advise that the power to issue the summonses was discretionary and that for a summons to be issued there must be a “real possibility” that the evidence of the witness may assist in the resolution of the issues in the proceeding.
Ms Wilkinson explained that on 4 March 2016, the parties attended a directions hearing at which the parties made submissions, and that on that day, Senior Member Walsh issued an order directing the registrar of the Tribunal to refuse Mr Nicholas’ request for summonses to be issued to named persons. Ms Wilkinson’s affidavit annexed that order.
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.
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.
The failure to obtain the ship’s log book
As to the complaint that the registrar of the Tribunal did not pursue the production of the “sign on, sign off book”, Ms Wilkinson deposed that the relevant pages of the ship’s log book were produced and became part of the evidence at the Tribunal hearing.
The reasons for decision of the Tribunal show that copies of the pages of the ship’s log book which contained the relevant entries, namely, Mr Isted’s signing of Mr Nicholas’ name, and Mr Nicholas’ own signature adjacent thereto, were produced in evidence. Mr Nicholas gave no evidence as to suffering any prejudice by reason of not having the rest of the log book in evidence. Accordingly, I do not find that Mr Nicholas was denied procedural fairness, or a fair hearing, by reason that the whole of the ship’s log book was not in evidence.
The conduct of the Tribunal member during the hearing
The next complaint of a denial of a fair hearing is that, Senior Member Walsh is alleged to have ignored Mr Nicholas’ objections in the hearing, and threatened him with gaol and 60 penalty points for trying to defend himself.
Mr Nicholas’ evidence in relation to the disallowance of his objections is at a very high level of generality. Importantly, Mr Nicholas did not give evidence in relation to any specific incident or incidents where his objections were disallowed. Nor did Mr Nicholas develop any argument as to how any such disallowance affected the fairness of the hearing or of the outcome of the application before the Tribunal.
As to the alleged threat of gaol, it is apparent from the reasons for decision that Mr Nicholas’ behaviour during the hearing was less than satisfactory. At [26] of the reasons, the Tribunal said:
The Applicant presented as proud of his family history in seafaring and of his own career as a seafarer, with his related achievements and qualifications. However, the Applicant was a very difficult applicant before the Tribunal. The Applicant repeatedly interrupted, objected, refused to answer questions and made inappropriate and disrespectful comments to the Members, AOS’s counsel and instructing solicitor and to AOS’s medical expert (Dr Eileen Tay), even continuing to do so after a formal warning by the Tribunal.
It was incumbent upon the presiding Tribunal member to assert some control over Mr Nicholas’ conduct in order to be fair to the legal practitioners representing the respondent, and the witnesses, as well as to maintain the decorum of the hearing. There was no evidence before the Court which challenged the Tribunal’s findings in relation to Mr Nicholas’ conduct before the Tribunal set out in [77] above. Accordingly, insofar as Mr Nicholas was warned by the Tribunal as to his conduct before the Tribunal, there is no evidence to suggest that the warning which Mr Nicholas received was not justified.
Accordingly, I reject Mr Nicholas’ contention that the fairness of the hearing was compromised by reason of the Tribunal unfairly disallowing his objections, and issuing a formal warning to Mr Nicholas.
For the sake of completeness, I also add that Mr Nicholas also complained that the hearing was invalid because both members of the Tribunal had not signed the reasons for decision. There is no requirement for both members of the Tribunal to sign the reasons for decision. There is no merit in this point.
I dismiss Mr Nicholas’ appeal insofar as it relates to his claim that he did not receive a fair hearing before the Tribunal.
THE GROUND OF APPEAL ALLEGING ERRORS OF LAW
The document which Mr Nicholas filed purporting to give particulars of the errors of law relied upon, referred to 10 matters. I set out below a summary of the grounds relied on as I discern them. The grounds as drafted by Mr Nicholas himself are difficult to construe and comprehend:
(i)wrong interpretation of the SRC Act;
(ii)the cases cited in the decision had no association with the SRC Act other than Norwest Shipping;
(iii)the Tribunal member failed to take into consideration the fact that Mr Nicholas had three medical certificates of fitness;
(iv)the definition of injury includes an “aggravation” of a pre-existing injury and the Tribunal failed to take this into account;
(v)the Tribunal failed to interpret the definition of “aggravation” and “ailment” in s 3 of the SRC Act;
(vi)the Tribunal failed to identify Mr Nicholas as a “seafarer”;
(vii)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;
(viii)the Tribunal failed to acknowledge that Mr Nicholas had complied with s 78 of the SRC Act;
(ix)the Tribunal failed to acknowledge that there was no definition of pre‑existing condition defined in the SRC Act.
In considering whether the notice of appeal raises a qualifying question of law, the question of law raised must be such that the determination of the question of law will have a potential bearing on the outcome of the appeal.
In my view, the manner in which Mr Nicholas has formulated his notice of appeal, has not raised a question of law which complies with s 44(3) of 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 that regard, I make the following observations.
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, it is apparent that 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 AOS’ 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.
I also observe, for the sake of completeness, that during the course of the hearing, I sought to ascertain from Mr Nicholas the gravamen of his complaint about the Tribunal’s decision. 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.
It follows that Mr Nicholas’s appeal under s 44(3) of the AAT Act is dismissed.
I certify that the preceding ninety‑five (95) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 1 February 2017
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