NRJT v Australian Offshore Solutions Pty Ltd
[2017] FCA 1322
•13 November 2017
FEDERAL COURT OF AUSTRALIA
NRJT v Australian Offshore Solutions Pty Ltd [2017] FCA 1322
Appeal from: NRJT v Australian Offshore Solutions Pty Ltd [2017] FCA 268 File number: WAD 190 of 2017 Judge: MCKERRACHER J Date of judgment: 13 November 2017 Catchwords: PRACTICE AND PROCEDURE – interlocutory application for dismissal of appeal pursuant to r 36.74 of the Federal Court Rules 2011 (Cth) – where appellant’s notice of appeal was not served on respondent – where grounds of appeal are not specified Legislation: Federal Court of Australia Act 1976 (Cth) ss 25(2B), 25(2BB)
Seafarers' Rehabilitation and Compensation Act 1992 (Cth) ss 66, 66(2)
Federal Court Rules 2011 (Cth) rr 4.12, 36.01(2)(c) 36.04(1), 36.74(1)(b)
Cases cited: NRJT v Australian Offshore Solutions Pty Ltd [2015] AATA 588
Nicholas v Australian Offshore Solutions Pty Ltd [2017] FCA 43
Nicholas v Australian Offshore Solutions Pty Ltd [2017] FCA 1321
Date of hearing: 29 May 2017 Registry: Western Australia Division: General Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 34 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 190 of 2017 BETWEEN: NRJT
Applicant
AND: AUSTRALIAN OFFSHORE SOLUTIONS PTY LTD
Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
13 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The appeal 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 Nicholas v Australian Offshore Solutions Pty Ltd [2017] FCA 1321.
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 the 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 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 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 December 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 in the Tribunal, 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 claim for compensation (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' appeal 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 the substantive appeal, assigned proceeding number WAD 120 of 2017.
On 13 March 2017, the same judge of this Court dismissed Mr Nicholas' suspension appeal and ordered Mr Nicholas to pay the respondent’s 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 subject of these reasons.
The respondent has not been formally served with the notice of appeal by Mr Nicholas and has only become aware of the appeal 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 appeal, 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 36.03 and r 36.04 of the Rules by not filing and serving the notice of appeal;
(c)there is no utility in Mr Nicholas’ appeal and there will be no such utility unless Mr Nicholas achieves a favourable result in the substantive application under proceeding number WAD 120 of 2017; and
(d)there are grounds to dismiss the appeal due to Mr Nicholas’ failure to comply with the Rules, pursuant to r 36.74.
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
…
36.03 Time for filing and serving notice of appeal
An appellant must file a notice of appeal:
(a) within 21 days after:
(i)the date on which the judgment appealed from was pronounced or the order was made; or
(ii)the date on which leave to appeal was granted; or
(b) on or before a date fixed for that purpose by the court appealed from.
...
36.04 Service on parties and lodgments
(1)An appellant must serve a notice of appeal on each person who was a party to, or given leave to intervene in, the proceeding in the court appealed from.
...
36.74Application to dismiss appeal
(1)A respondent may apply to the Court for an order that the appeal be dismissed for the failure by an appellant to do any of the following:
(a) comply with a direction of the Court;
(b) comply with these Rules;
(c) attend a hearing relating to the appeal;
(d) prosecute the appeal.
(2)An application under subrule (1) must be served on the appellant:
(a) at the appellant's address for service; or
(b) personally.
(emphasis added)
THE PRIMARY JUDGMENT
In NRJT, the primary judge noted that Mr Nicholas was there referred to by the pseudonym ‘NRJT’, but in these reasons he will be referred to as Mr Nicholas. The primary judge referred to his Honour’s previous judgment in Nicholas and repeated some of the salient facts. His Honour then referred to s 66 of the SRC Act and the power thereunder to require medical examination. His Honour noted that Mr Nicholas had been asked by the respondent to attend a medical examination on each of 15 July 2014 and 5 August 2014, but he did not attend either of those appointments. Nor did he attend a further medical appointment on 15 December 2014 as requested. His Honour referred to the respondent, acting pursuant to s 66(2) of the SRC Act, suspending Mr Nicholas’ right to claim compensation and the claim by Mr Nicholas in the Tribunal challenging the suspension decision. As noted by the primary judge, ultimately, prior to the hearing of the suspension application, Mr Nicholas did attend a medical examination and the suspension then ceased.
His Honour examined the suspension application before the Tribunal where Mr Nicholas contended that he had a reasonable excuse for not attending the three appointments. On 13 August 2015, the Tribunal delivered its decision, finding that Mr Nicholas had not provided any reasonable excuse for his failure to attend the three medical appointments, observing that such a failure constituted an obstruction in accordance with s 66(2) of the SRC Act. The Tribunal affirmed the suspension by the respondent.
As his Honour noted, on 3 September 2015, Mr Nicholas appealed the Tribunal’s decision in NRJT v Australian Offshore Solutions Pty Ltd [2015] AATA 588 to this Court on a question of law. In the meantime, Mr Nicholas’ substantive application before the Tribunal, (concerning the respondent’s determination to deny him workers’ compensation on the basis that he was not suffering a compensable injury) was still pending and the suspension appeal in this Court was adjourned pending the outcome of that application. The basis of that adjournment was because the utility of the suspension appeal before this Court was affected by the outcome of the Tribunal review.
On 20 May 2016, the Tribunal affirmed the decision of the respondent not to accept Mr Nicholas’ claim for workers’ compensation. Mr Nicholas subsequently commenced the substantive appeal supposedly on a question of law. As the primary judge noted, on 1 February 2017, his Honour dismissed the substantive appeal. I have dismissed an appeal from that decision in proceeding WAD 120 of 2017, Nicholas v Australian Offshore Solutions Pty Ltd [2017] FCA 1321 (Nicholas Full Court).
Shortly after the delivery of the decision in the substantive appeal (referred to in proceeding WAD 120 of 2017), the suspension appeal was also set down for hearing. The primary judge was informed that Mr Nicholas had advised the Court Registry that he did not intend to appear at the hearing due to financial hardship. Mr Nicholas did not appear when the matter was called on for hearing. There was no affidavit evidence before the Court explaining his non-appearance and the primary judge proceeded to hear the application.
The main point raised by the respondent then, as with now, is that there was no utility of the suspension appeal in light of the fact that:
(a)the respondent’s determination not to accept the claim by Mr Nicholas for workers’ compensation was affirmed by the Tribunal; and
(b)the appeal from that decision had been dismissed by the primary judge on 1 February 2017.
The primary judge agreed with the contention by the respondent that the appeal served no utility, his Honour expressing the matter as follows (at [21]-[24]):
21 I accept [the respondent’s] contention. This appeal serves no utility. This is because [the respondent] did not accept Mr Nicholas’ claim for workers’ compensation and, therefore, Mr Nicholas was not in receipt of any compensation funds prior to the impugned suspension determination made by [the respondent], nor afterwards when the suspension ceased to have effect.
22 This appeal would have had utility had Mr Nicholas succeeded before the Tribunal in establishing an entitlement to workers’ compensation. In that circumstance, it would have been relevant to determine whether the suspension determination was warranted, because if it had not been warranted, Mr Nicholas would have been entitled to workers’ compensation for the period of the suspension. However, as it transpired, Mr Nicholas’ application to the Tribunal was unsuccessful, as was his appeal on a question of law to this Court.
23 I would add that I have been advised by the Court’s registry that last week Mr Nicholas filed an application for an extension of time to appeal against this Court’s decision in Nicholas. The application has not yet been heard. However, in the absence of any stay having been granted, I do not intend to treat the filing of the extension of time application, as a basis for declining to give effect to the decision in Nicholas.
24 Accordingly, I am of the view that this appeal on a question of law has no utility, and I dismiss this appeal.
THE PROPOSED GROUNDS OF APPEAL
The notice of appeal provides no assistance in understanding the complaint. Under the heading ‘Grounds of appeal’ Mr Nicholas has written ‘the whole judgment’. In relation to Orders sought he has written ‘Time extension leave to appleal [sic]. Three Judges Federal Full court’. Mr Nicholas has purportedly sworn a document in standard form under Form 59 which simply says that he is an applicant authorised to make the affidavit, but it, again, provides no illumination whatsoever as to any basis for appeal. In fact, that is all it says.
RESPONDENT’S APPLICATION
The respondent seeks dismissal of the appeal for non-compliance with the Rules. In oral submissions, it was made clear that there had been no service of the relevant documents, such as they are, on the respondent and that the documents provided no indication whatsoever of any grounds of appeal. The point was also made in oral submissions that there was no utility in challenging the order made by the Tribunal in the suspension application, in light of the ruling on the substantive question against any entitlement on the part of Mr Nicholas to workers’ compensation.
In response to that, Mr Nicholas filed a more extensive affidavit in this appeal in the following terms (without amendment), which are identical to the affidavit filed in the Nicholas Full Court proceedings:
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 unrepsented.
…
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
The complaints about the primary judge about the conduct by his Honour at the hearing are clearly misplaced in relation to this appeal because Mr Nicholas did not attend the hearing, as indicated above.
CONSIDERATION
It will be apparent from the material catalogued above that, on any number of grounds, the appeal should be dismissed at this point without the respondent being required to incur further cost. Contrary to the Rules, none of the materials was served on the respondent and the respondent only accessed the material by searching the Federal Court Registry. Secondly, the primary judge was correct to conclude that there was no utility in the appeal in light of the conclusions on the substantive determination. Finally, there is, and was, no question of law before the primary judge and no indication at all of any basis on which the Tribunal might have taken the wrong approach in its assessment.
CONCLUSION
In all those circumstances, the appeal must be dismissed with costs.
I certify that the preceding thirty-four (34) 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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