O'Sullivan and P & O Maritime Services Pty Ltd - [2019] AATA 126

O’Sullivan and P & O Maritime Services Pty Ltd (Compensation) [2019] AATA 126 (8 February 2019)
Division:GENERAL DIVISION
File Number: 2015/0698
Re:Michael O'Sullivan
APPLICANT

P & O Maritime Services Pty LtdAnd
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:8 February 2019
Place:Canberra

The application for dismissal of Mr O’Sullivan’s application is refused.
Subject to further orders, the application is to be set down for hearing according to the following procedural directions:
(a)on or before 22 February 2019, Mr O’Sullivan is to inform the Tribunal and the Company if he presses the request he made on 17 February 2016; and if so
(i)on or before 8 March 2019, Mr O’Sullivan is to give the Tribunal supporting submissions in writing, or inform the Tribunal that no such submissions will be made; and
(ii)on or before 22 March 2019, the Company is to provide any written submissions in response, or inform the Tribunal that no such submissions will be made;
(b)on or before 7 May 2019, Mr O’Sullivan is to give the Tribunal and the Company all relevant materials on which he will rely at hearing;
(c)on or before 6 August 2019, the Company is to give the Tribunal and Mr O’Sullivan all relevant materials on which it will rely at hearing;
(d)on or before 20 August 2019, Mr O’Sullivan is to give the Tribunal and the Company a Statement of Facts, Issues and Contentions;
(e)on or before 3 September 2019, the Company is to give the Tribunal and Mr O’Sullivan a Statement of Facts, Issues and Contentions; and
(f)a hearing is to be listed at the earliest suitable date thereafter.
........[sgd]................................................................
Mr S. Webb, Member
CATCHWORDS
PRACTICE AND PROCEDURE – dismissal application – Seafarers’ compensation – compensation claim in respect of a back injury – delays in Tribunal proceedings– self-representation – ill health – effects of medications – alleged inability to continue with self-representation – application for provision of assistance by the Attorney-General not yet determined – failure to comply with Tribunal direction within a reasonable time – discretion to dismiss – relevant factors – consideration of circumstances – consideration of procedural options and proper remedy – dismissal application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 33, 41, 42A, 45, 69
Seafarers’ Rehabilitation and Compensation Act 1992 (Cth), ss 4, 61, 67, 79
CASES
George v Rockett [1990] HCA 26
Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367
Guse v Comcare [1997] 49 ALD 288
O’Sullivan v Barker J & Ors [2017] HCA P38 of 2017, 8 November 2017
O’Sullivan v Barker J & Ors [2018] HCA P62 of 2017, 21 March 2018
O’Sullivan v P & O Maritime Services Pty Ltd [1998] DCWA CIV2466 of 1997
O’Sullivan v P & O Maritime Services Pty Ltd [2016] AATA 283
O’Sullivan v P & O Maritime Services Pty Ltd [2016] AATA 865
O’Sullivan v P & O Maritime Services Pty Ltd [2016] FCA 969
O’Sullivan v P & O Maritime Services Pty Ltd [2017] FCA 47
O’Sullivan v P & O Maritime Services Pty Ltd [2018] AATA 2899
REASONS FOR DECISION
Mr S. Webb, Member
8 February 2019
These proceedings are in respect of Michael O’Sullivan’s application for review of a decision by P & O Maritime Services Pty Ltd (the Company) to refuse his claim for compensation relating to a back injury. The proceedings have been protracted and complicated by extensive disputation on procedural points.
As can be seen from the following factual background, the Company has applied for the application to be dismissed under s 42A(5)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). Presently, it is this issue, alone, that must be decided.
The parties have been given opportunity to place materials and written submissions before each other and the Tribunal, addressing this issue. An interlocutory hearing was listed before the Tribunal on 11 December 2018, at which evidence was tendered and the parties made oral submissions.
While the issue to be determined presently is narrow in compass, in order to fully comprehend the issues agitated, it is helpful to set out the factual background and procedural history, albeit lengthy and extensive.
FACTS
The factual background has been set out in detail in previous decisions of the Tribunal and court judgments, namely:
(a)O’Sullivan and P & O Maritime Services Pty Ltd [2016] AATA 283 (3 May 2016);
(b)O’Sullivan and P & O Maritime Services Pty Ltd [2016] AATA 865 (10 October 2016);
(c)O’Sullivan and P & O Maritime Services Pty Ltd [2018] AATA 2899 (15 August 2018);
(d)O’Sullivan v P & O Maritime Services Pty Ltd
[1998] DCWA CIV2466 of 1997

(17 September 1998);
(e)O’Sullivan v P & O Maritime Services Pty Ltd [2016] FCA 969 (9 August 2016);
(f)O’Sullivan v P & O Maritime Services Pty Ltd [2017] FCA 47 (2 February 2017);
(g)O’Sullivan v Barker J & Ors [2017] HCA P38 of 2017 (8 November 2017); and
(h)O’Sullivan v Barker J & Ors [2018] HCA P62 of 2017 (21 March 2018).
In particular, I note the factual background set out by the Tribunal (differently constituted) in O’Sullivan and P & O Maritime Services Pty Ltd [2016] AATA 283 (the Dismissal Decision) at paragraphs [4] to [32] and (as presently constituted) in O’Sullivan v P & O Maritime Services Pty Ltd [2018] AATA 2899 at paragraphs [8] to [52]. For present purposes, and in order to assist understanding, it is appropriate to set out the following facts that are established by the materials before the Tribunal.
On 16 December 1993 while employed by the Company as a Greaser on the Lady Dawn, Mr O’Sullivan injured his back in a fall.[1]
[1] T15.
He claimed and was paid compensation.
It was in this context that Mr O’Sullivan was called upon to make an election between receiving compensation under the applicable Award[2] or under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (the SRC Act). He provided the Company an undated, hand-written document in the following terms:
Dear Craig
Please find enclosed medical certificate. I would like to elect to make my claim for workers compensation under the Award system and not the new Seaman Rehabilitation and Compensation Act 1992.
Thanks Craig
Your faithfully
[signed]
[Original emphasis.]
[2] Reference is made to the Maritime Industry Offshore Gas and Oil Award 1991 and the Maritime Industry Seagoing Award 1983 (the Award). For present purposes, it is not necessary to examine which parts of these instruments applied in the particular circumstances of Mr O’Sullivan’s case.
There is a dispute about the status and legal effect of this document.
From 17 December 1993 the Company paid Mr O’Sullivan fortnightly amounts for lost wages under the Award. On 17 June 1994 he was removed from Register A under clause 3(r)(v) of Schedule X to the Award. His employment by the Company ended on

19 December 1994. The Company ceased paying compensation for lost wages on 16 November 1995, being the day on which the final threshold for payment under the Award was reached.
Thereafter, Mr O’Sullivan pursued a common law claim against the Company in the District Court of Western Australia.[3] He was not successful. On 17 September 1998 O’Sullivan DCJ answered the following question affirmatively:
whether, in light of the plaintiff’s written and irrevocable election to receive benefits and his receipt of benefits under the Maritime Industry Offshore Gas and Oil Award (1991) in lieu of compensation payments made pursuant to the Seafarers Rehabilitation and Compensation Act 1992 (Cth), the plaintiff is precluded from instituting or proceeding with a common law action against the defendant; …?”
and said:
… I am of the view that s 54(1)(a) does operate to preclude the plaintiff from instituting or proceeding with a common law action against the defendant. … it is clear, in my view, that the plaintiff has no right by virtue of s 55 to institute or proceed with a common law action against the defendant.
[3] CIV 2466 of 1997; Lib No D980258.
Almost 16 years later, on 29 October 2014, Mr O’Sullivan signed a compensation claim in respect of an alleged injury under the SRC Act,[4] nominating the Company as his employer. The claim is for compensation relating to:
(a)lost wages resulting from incapacity for work;
(b)medical and related expenses;
(c)travel expenses attending medical examination/rehabilitation;
(d)alterations, aids or appliances; and
(e)household and attendant care services.[5]
[4] T8.
[5] Ibid, folio 39.
In the claim, Mr O’Sullivan set out the particular circumstances of the alleged injury, and stated that it occurred at approximately “945am-1005am” on 26 August 2014 “[o]utside maritime union and maritime mining power credit union building”, “Leaving the building after paying union fees and registering for employment and accidently missed the step and jarred my back”.[6] The resulting injury is said to be “Lumbosacral radiculopathy – slipped disc” affecting “Lower back – left leg”.[7] Mr O’Sullivan included information in the claim about his previous injury in 1993.[8]
[6] Ibid, folios 41 and 42.
[7] Ibid, folio 41.
[8] Ibid, folio 42.
On 21 November 2014 the Company requested information from Mr O’Sullivan under

s 67 of the SRC Act:
Please provide the following information in writing.
1.Proof of employment with P&O Maritime in 1993.
2.Claim number and details of claim relating to the incident in 1993 with P&O Maritime including any medical reports and dates of incapacity.
3.Details of current claim including medical reports eg MRI report and relationship with employment at P&O Maritime.
4.Details of claims for lost wages resulting from incapacity for work, medical and related expenses, travel expenses, alterations, aids or appliances, household and attendant care services.
5.History of employment from 1993 – 2014.
Please note that we may choose to contact Dr John Troy and Dr Bradley Price to seek further clarification around any of the above points. I look forward to hearing back from you as soon as possible.[9]
Please note that the 12 day liability determination timeframe has ceased until this information is received.[10]
[9] Exhibit 3, ‘14’.
[10] T9.
On 1 December 2014 Mr O’Sullivan provided the following response –
I reply in sequence to the numbered questions
1.Copy of Discharge from Offshore Supply Vessel {enclosed}
2.Claim no 3898
Details.
P&O Maritime Services PTY LTD Paid fortnightly Compensation for lost wages to the Claimant effective from 17/12/93
The Claimant was removed from Register A in accordance with clause 3{r}{v} schedule x Maritime Industry Seagoing Award due to injury extending beyond 6 months effective 17/6/94
P&O Maritime Services PTY LTD terminated employment effective 19/12/94
P&O Maritime Services PTY LTD ceased payment of fortnightly Compensation for lost wages effective 16/11/95
P&O Maritime Services PTY LTD did not contribute to the Claimants medical expenses
The Claimant has enclosed a Progress/Fitness Medical Certificate dated 1/3/94 from DR John Troy that relates to the injury on the 16/12/93
At the time of writing the above mentioned Certificate is all that can be Located
3.A copy of Hospital Attendance and Diagnosis is enclosed dated 26/8/2014
Your request under Section 67 {SRCA} and the information supplied establishes a Relationship
4.The Claimant makes Request for lost wages under the Regulations of the {SRCA}
The Claimant reserves his right to claim all other entitlements
5.The Claimant was employed
Offshore Marine Services 2006 2007
Svitzer Offshore PTY LTD 2008
Maersk Shipping 2008 2009
Seacorp Coastal Shipping 2009 2010
Tams Dredging 2010 2011
The Claimant did not resume duties in the Maritime Industry after 16/12/1993 until 19/7/2006
The Claimant encloses a further Progress Certificate Of [sic] Capacity DR Price dated 9/10/2014
The Claimant has answered each and every question requested under section 67 {SRCA} in a truthful manner[11]
[11] Exhibit 3, ‘15’; T11, folio 47.
On 8 December 2014 the Company decided to refuse the claim for a lumbosacral radiculopathy injury.[12]
[12] T12, folio 48 and 49.
Mr O’Sullivan requested reconsideration of the decision on 10 December 2014.[13]
[13] T13, folio 50.
The Company did not make a reconsideration decision within the time allowed under

s 79(1)(a) of the SRC Act and, by operation of s 79(6), the Company is deemed to have made a decision disallowing the claim.
On 12 February 2015 Mr O’Sullivan applied for review by the Tribunal.[14]
[14] T1, folios 3 and 4.
Proceedings in the Tribunal commenced. There were some difficulties. As will appear, a dispute arose about information sought from Mr O’Sullivan by the Company in respect of his treating doctors and previous employers since 1993. Although it is not necessary to set out in full the relevant procedural history recorded by the Tribunal at that time in the Dismissal Decision, it is germane to note that the issues Mr O’Sullivan raised in that context remain issues of contention and dispute between the parties.
On 27 April 2015 the Company’s solicitors, Holman Fenwick Willan, asked Mr O’Sullivan to list “all your employers from 1995 to date” and “all treating doctors you consulted in respect of your back condition from 1995 to date”.[15]
[15] Exhibit 2, ‘16’.
On 20 May 2015 Mr O’Sullivan replied, referring to each request as “Not Relevant”.[16]
[16] Ibid ‘17’.
On 17 November 2015 in a lengthy missive, the Company’s solicitors explained the relevance of the information sought to determine Mr O’Sullivan’s claim by the Tribunal and pressed the request.[17]
[17] Ibid ‘18’.
On 30 November 2015, Mr O’Sullivan replied, stating:
…
The respondents [sic] lawyers continue to push for medical history from 1993 to date and employment history from 1995. The claimant says they are not entitled to it. The claimant says he was removed from register A through injury and become [sic] a civilian and was sacked and paid his own medical treatment.
The election to receive compensation under an award, a representative from P&O Dictated that over the phone in late december [sic] 1993, and it has never been sighted in any court of law. It will not stand up now or never would have. The election was made when the SRCA was in its infancy. Besides no election is made on the accident on 26/8/2014.
The claimant addresses the injury on the 26/8/2014 and states for everybody’s understanding the nature of such injury. The claimant jarred his back, this is clearly written on the claim form, the sudden jolt travelled up the claimants [sic] leg into the same spot that the claimant suffered an injury on 16/12/1993 causing the recurrence.
The claimant addresses section 33 of the Administrative Appeals Act
Not to contradict the relevant legislation governing that Act
The claimant also expects a fair go.
The claimant seeks directions to answer the question, who is deemed to be the claimants employer.[18]
[18] Ibid ‘19’.
On 23 December 2015 a directions hearing took place about which the Tribunal recorded the following remarks in the Dismissal Decision:
22.A directions hearing was subsequently held before SM Walsh on 23 December 2015 to progress the matter and, in particular, to deal with the Respondent’s request for information from the Applicant (i.e. a list of the Applicant’s treating doctors and employers from 1993 to date) and the Applicant’s response to that letter.
23.In summary, the Tribunal explained the following to the Applicant at the directions hearing held on 23 December 2015:
•The duty of the Tribunal is to review an administrative decision on its merits to determine whether it, or some other decision, is the right decision in all the circumstances (i.e. the Tribunal is required to reach the ‘correct and preferable decision’: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 78 per Smithers J). In the Applicant’s case, the Tribunal considers that it requires the information in the lists requested by the Respondent (i.e. the list of the Applicant’s treating doctors and employers since 1993) in order to properly discharge its statutory duty;
•The Tribunal is not bound by the rules of evidence and ‘may inform itself on any matter in such manner as it thinks appropriate’ (although it is obliged to comply with the requirements of natural justice and procedural fairness): s 33(1)(c) of the AAT Act. The Tribunal considers the information in the lists requested by the Respondent (i.e. the list of the Applicant’s treating doctors and employers since 1993) to be information that is appropriate for it to obtain and consider in the circumstances of this case. This information is ‘logically probative’ and relevant to the issues before the Tribunal in this application;
•Obtaining the lists requested by the Respondent (i.e. the list of the Applicant’s treating doctors and employers since 1993) is only the first step in a multi-step process of obtaining evidence that may be relevant to the Applicant’s case (akin to a discovery process in civil proceedings in a court). That is, once the lists have been provided to the Respondent and the Tribunal by the Applicant, the Respondent is likely to request that the Tribunal issue of Summonses to Produce Documents to the doctors and employers named in the lists. If and once those summonses are issued by the Tribunal (pursuant to its discretionary power in s 40A of the AAT Act), the Applicant will generally be afforded an opportunity to inspect the documents produced under the summonses (in accordance with s 40B of the AAT Act) and is entitled to object to any of the documents produced being inspected by the Respondent, on the grounds of ‘relevance’. The Tribunal will then decide whether or not to uphold any objections made by the Applicant. The Respondent will then be entitled to inspect and copy any produced documents which have not been objected to by the Applicant and/or which the Tribunal allows the Respondent to inspect following any objection being made by the Applicant (in accordance with s 40B of the AAT Act);
•In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding:

s 33(1AA) of the AAT Act. By requesting the information that it has (i.e. the list of the Applicant’s treating doctors and employers since 1993), the Respondent is seeking to assist the Tribunal to reach the correct and preferable decision on the application; and
•A direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may ‘require any person who is a party to the proceeding [in this case the Applicant] to provide further information in relation to the proceeding’: s 33(2A) of the AAT Act.
24.At the directions hearing on 23 December 2015, the Tribunal (SM Walsh) then made the following direction:
•On or before 4 February 2016, the Applicant file with the Tribunal and serve on the Respondent:
(a) a list of all treating doctors consulted, in respect of his back condition, from 1993 to date; and
(b) a list of all of his employers from 1993 to date.
(Original emphasis.)
On 14 January 2016 Mr O’Sullivan sought revocation of Tribunal directions made on 23 December 2015 and stated:
1.On the 1/12/2014 the Claimant replied to the respondents request for further information made under section 67 [SRCA] on the 21/11/2014 and supplied the information
2.The request on the on the [sic] 21/11/2014 was the only official request made under section 67 of the SRCA, the respondents lawyers are just conducting a fishing expedition and presenting a red herring in all there [sic] previous correspondence.
3.The directions are not clear and should have at least taken into consideration the information already submitted.
4.The Claimant repeats that he was removed from register A on the 17/6/1994 and any further information other than that already supplied and forcibly ordered would in his opinion be outside the boundaries of the SRCA.
5.The Respondents [sic] Lawyers are simply not entitled to information outside the SRCA.
6.…[19]
[19] Exhibit 2, ‘21’.

On 17 February 2016 Mr O’Sullivan requested referral of a question of law to the Federal Court of Australia:[20]
…
That question being, Can [sic] a Claimant be compelled to provide information of or during a period of time served outside the Maritime Industry, under the Rules and Regulations of the Seafarers Rehabilitation and Compensation Act 1992.
The Claimant contends that he supplied the information on the 1/12/2014 in response to a request from the respondent under section 67[SRCA] within the time limit, and complied with request. The claim was then carried on with, and deemed to be disallowed under section 79 [2] [SRCA] about 8/2/2015.
…
Whereby allowing the claim to proceed through the original 12 day period after the information was received under section 67, through the 60 day reconsideration and then deeming the claim under s 79 [SRCA] The Claimant is said to have complied with the original request under section 67 [2] [SRCA].
The Respondents Solicitors are acting outside the current legislation in their quest to revisit the request under section 67[SRCA].[21]
[20] Ibid ‘21’.
[21] Ibid.
As will appear, the Tribunal did not squarely address this request and this is a matter of some significance to the issue I must decide.
On 18 February 2016 the Company’s solicitors reiterated the request for the information previously sought and required under the Tribunal’s then current direction

dated 23 December 2015.[22]
[22] Ibid ‘22’.
What happened next is set out in some detail in the Dismissal Decision:
27.The matter was listed for a non-compliance directions hearing before SM Walsh on 25 February 2016. At that directions hearing, the Tribunal (SM Walsh) essentially reiterated what it had explained to the Applicant at the directions hearing on 23 December 2015 (refer to paragraph 23 above) and then made the following directions:
1.Direction 1 made by the Tribunal on 23 December 2015 is hereby revoked.
2.On or before 10 March 2016, the Applicant file with the Tribunal and serve on the Respondent;
(a) a list of all treating doctors consulted, in respect of his back condition, from 1993 to date; and
(b) a list of all of his employers from 1993 to date.
3.If the Applicant fails to comply with Direction 2 of this Direction, the Tribunal will dismiss the application pursuant to section 42A(5)(b) of the Administrative Appeals Tribunal Act 1975.
28.On 7 March 2016, the Applicant wrote to the Tribunal requesting a:
…… a six week adjournment regarding the orders made by Senior Member Walsh on 25 Feb 2016......as further time is needed to assess the degree of Permanent Impairment and noneconomic loss under Section 40 [b] of the SRCA Act 1992.
29.By email dated 9 March 2016, the Registry notified the Respondent of the Applicant’s extension of time/adjournment request.
30.On 10 March 2016, the Respondent wrote to the Tribunal advising that it did not agree with the Applicant’s request for an extension of time/adjournment to comply with the Tribunal’s direction dated 25 February 2016, stating:
The application before the Tribunal concerns the review of a reviewable decision deemed to have been made by the Respondent on 9 February 2015 disallowing the Applicant’s claim for compensation pursuant to the [SRCA] …… which are alleged to have arisen from an injury sustained to the Applicant’s lumbosacral spine on or about 26 August 2014.
The Tribunal has accepted the Respondent’s argument that in order to make its review of the decision, it requires the Applicant to provide the information sought by its directions of 23 December 2015 and 25 February 2016.
The Applicant has now delivered a separate claim form seeking permanent impairment and non-economic loss compensation pursuant to sections 39 and 41 of the SRCA. The claim form is dated 7 March 2016 and a copy was annexed to your email of 9 March 2016.
It is accepted that this claim must now be considered by the Respondent in accordance with its obligation under section 73A of the SRCA. However, in our submission it is not relevant to nor does it have any effect the [sic] on the present application in respect of which Senior Member Walsh made the abovementioned direction.
The Applicant has not provided the information in accordance with the Tribunal’s directions, nor given any explanation as to why he cannot provide the information within the time permitted by the Tribunal.
31.The Applicant failed to comply with Direction 2 of the Tribunal’s Directions, dated 25 February 2016, on or before 10 March 2016.
32.On 11 March 2016, the Tribunal dismissed the Applicant’s application under s 42A(5)(b) of the AAT Act on the basis that the Applicant had not complied with Direction 2 of its Directions, dated 25 February 2016, on or before 10 March 2016.
Mr O’Sullivan lodged an appeal against this decision in the Federal Court of Australia.[23]
[23] O’Sullivan and P & O Maritime Services Pty Ltd [2016] FCA 969.
In the result, on 9 August 2016, Siopis J set aside the decision as Mr O’Sullivan had not been provided an opportunity to make submissions as to whether the whole of the application should be dismissed and remitted the matter to be determined according to law by the Tribunal, differently constituted.[24] In so doing, Siopis J did not deal with the issue of “an inconsistency between s 67(2) of the Seafarers Rehabilitation and Compensation Act and s 33(2) of the AAT Act”.[25]
[24] O’Sullivan and P & O Maritime Services Pty Ltd [2016] FCA 969.
[25] O’Sullivan and P & O Maritime Services Pty Ltd [2016] FCA 969 at [9].
Proceedings resumed in the Tribunal.
On 12 September 2016 I heard the parties on how the matter should proceed. A threshold issue arose in respect of Mr O’Sullivan’s employer and s 4 of the SRC Act for the purposes of his claim. The parties agreed that this issue should be dealt with by way of a ruling, before the application proceeded any further. To my mind, it was sensible to proceed in this way and on 7 October 2016 I heard the parties’ submissions on this point and provided a ruling with explanatory reasons.[26]
[26] O’Sullivan and P & O Maritime Services Pty Ltd [2016] AATA 865.
Mr O’Sullivan appealed this interlocutory decision to the Federal Court of Australia. The appeal was dismissed by McKerracher J on 2 February 2017.[27]
[27] O’Sullivan and P & O Maritime Services Pty Ltd [2017] FCA 47.
Mr O’Sullivan did not lodge an appeal against this judgement within the allowed time but subsequently sought an extension of time in which to do so. On 9 May 2017, Barker J refused the application.[28]
[28] O’Sullivan v P & O Maritime Service Pty Ltd [2017] FCA 508.
Proceedings in the Tribunal resumed.
On 18 July 2017 I heard the parties. In the course of discussing the appropriate procedure, Mr O’Sullivan applied for an adjournment of the proceedings on grounds that he intended to seek special leave to appeal to the High Court of Australia. The Company’s legal counsel argued that, in view of the time taken in the proceedings so far, it would be appropriate for the Tribunal to make further orders requiring Mr O’Sullivan to provide the names of all previous employers and the names of doctors who had treated his back condition since 1993. Mr O’Sullivan argued against this on grounds that he had provided the Company with such information in compliance with a notice issued under s 67 of the SRC Act, but this information had been ignored. In so doing, he did not raise or reiterate the request he made on 17 February 2016. I gave orders allowing three weeks for Mr O’Sullivan to advise the Tribunal and the Company if he had lodged an application for special leave to appeal to the High Court of Australia, or advise that he does not intend to lodge such an appeal, and set the matter down for further directions on 11 August 2017.
On that day, Mr O’Sullivan informed the Tribunal that he had lodged an application for special leave in the High Court of Australia. Once again, the Company pressed for orders reiterating those previously given in respect of Mr O’Sullivan’s previous employers and treating doctors, and providing him seven days in which to comply. Mr O’Sullivan resisted this on grounds that he had not yet heard from the High Court of Australia about his application. I held the directions hearing over to 25 August 2017.
On 17 August 2017 Mr O’Sullivan filed notice of proceedings in the High Court – No P38 of 2017.[29]
[29] O’Sullivan v Barker J & Ors [2017] HCA P38 of 2017, 8 November 2017.
On 25 August 2017 the directions hearing resumed. Once again, the Company pressed for orders in respect of Mr O’Sullivan’s previous employers and doctors who had treated his back condition since 1993. This information, so the Company’s argument goes, in part at least, is necessary in order to prepare requests for summons to be issued by the Tribunal. Mr O’Sullivan again resisted this request. He submitted that he had not yet decided whether he would proceed with his application if he was not successful in the High Court of Australia. While noting that further delay is not desirable, I refused the Company’s request as, to my mind, there was not sufficient justification to put the Company to further costs relating to procedural actions or investigations that may have no utility should Mr O’Sullivan not proceed. To my mind, the better course was for appropriate orders to be made should he proceed once his proceedings in the High Court of Australia had been dealt with.
On 8 November 2017 Gordon J refused Mr O’Sullivan’s application for show-cause orders in respect of the judgement of McKerracher J and dismissed his application in respect of Barker J.[30]
[30] O’Sullivan v Barker J & Ors [2017] HCA P38 of 2017, 8 November 2017.
Mr O’Sullivan sought leave to appeal from the judgement of Gordon J,[31] and on

21 December 2017 gave notice of a matter under the Commonwealth of Australia Constitution Act 1900 (the Constitution), stating:
The change over to The Seafarers Rehabilitation and Compensation Act 1992 resulted in the applicants [sic] Common Law Compensation Claim for a work related injury, lodged against the third Respondent P&O Maritime Services PTY LTD being barred by the District Court of Western Australia, matter CIV2466 of 1997, delivered 17 September 1998, and the Tribunal is yet to address or resolve the question of whether the 2014 injury was a continuing injury or fresh injury, the issue remains and still remains, to be addressed and resolved by the Tribunal. Section 51(xxxi) of the Constitution requires that the law be applied on just terms.[32]
[31] O’Sullivan v Barker J & Ors [2018] HCA P62 of 2017, 21 March 2018.
[32] Notice of Constitution Matter dated 21 December 2017 lodged by the Mr O’Sullivan in O’Sullivan v Barker J & Ors [2018] HCA P62 of 2017, 21 March 2018.
On 21 March 2018 Bell and Gageler JJ refused the application.[33]
[33] O’Sullivan v Barker J & Ors [2018] HCA P62 of 2017, 21 March 2018.
Proceedings in the Tribunal then resumed.
On 9 May 2018 I heard the parties in a telephone directions hearing and issued procedural directions:
1.on or before 20 June 2018, the applicant give to the Tribunal:
a.the names of all treating doctors he consulted in respect of his back condition from 16 December 1993 to the present; and
b.the names of all his employers, on and off shore, from December 1993 to the present; and
c.if he objects to this information being provided to the respondent, submissions addressing that objection; and
d.in respect of other issues raised by the applicant during the directions hearing that he is seeking to have address,[sic] if any, a document setting out those issues and related submissions;
2.on or before 20 June 2018, the respondent is to file and serve all medical certificates and other relevant documents in its holdings in the period from 16 December 1993 to 12 November 2014 in respect of the applicant that have not already been filed; and
3.on or before 4 July 2018, a response to matters raised by the applicant under 1(c) and (d), if any.
On 15 June 2018 Mr O’Sullivan made written submissions in respect of the directions of 9 May 2018 in which he applied for:
(a)a stay of the proceedings under s 41(2) of the AAT Act in respect of an alleged question of law (which was not clearly stated); and
(b)legal assistance from the Attorney-General under s 69(1)(a) and (c) of the AAT Act.
Mr O’Sullivan did not provide additional information in compliance with direction 1 of

9 May 2018.
I heard the parties on 2 July 2018. The Company pressed for orders requiring Mr O’Sullivan to make submissions why the whole of his matter should not be dismissed. Mr O’Sullivan agitated issues relating to the “Constitutional matter” he raised previously in reference to s 61 of the SRC Act, arguing that this should be dealt with by a court before the Tribunal proceedings progressed any further, and he should be allowed time to take the matter to the Federal Court of Australia. Mr O’Sullivan reiterated that he was seeking legal assistance from the Attorney-General. In the result, I issued the following directions:
1.on or before 30 July 2018, the applicant to give to the Tribunal:
a.the names of all treating doctors he consulted in respect of his claimed back condition from 16 December 1993 to the present; and
b.the names of all his employers, on and off shore, from December 1993 to the present; and
c.other medical information he considers relevant to his case, in the form of hospital records for example;
2.should the applicant not comply with Direction 1 within the specified time, on or before 13 August 2018, the applicant to give to the Tribunal written submissions why the whole of his application should not be dismissed and should, nevertheless, proceed;
3.on or before 27 August 2018, the respondent to give to the Tribunal and the applicant submissions in response to those given by the applicant pursuant to Direction 2, if any.
On 4 July 2018 Mr O’Sullivan made the following request:
Further to this matter being remitted to the Tribunal to be determined by Law [2016] FCA 969, the Submissions in response to direction 9 May 2018 and directions hearing by Telephone on 2 July 2018 conducted by Senior Member Webb, the Applicant formally requests that, under section 45{1} of the Administrative Appeals Tribunal Act, with the agreement of the President refer the Question of law contained in the Reasons for Decision, Senior Member Walsh, 3rd May 2016 {para 18 page 7} to the Federal Court of Australia, the Question of Law being as set out below.
Whether or not Section 61 of the Seafarers Rehabilitation and Compensation Act precludes the Applicants [sic] claim for Compensation at all.
On 10 July 2018, I issued the following directions:
1.on or before 17 July 2018, the applicant must give to the Tribunal and the respondent written submissions specifying:
a.the particular question of law; and
b.how the question arises in these proceedings before the Tribunal; and
c.why the question should be referred to the Federal Court of Australia rather than be dealt with by the Tribunal;
2.on or before 24 July 2018, the respondent must give to the Tribunal and the applicant written submissions in reply, or advise the Tribunal that no such submissions will be made.
The 2 July 2018 directions remained in place. The Company made written submissions on 10 July 2018.
On 17 July 2018 Mr O’Sullivan identified the alleged question of law in the following manner:
The Particular Question of Law is: Whether or not Section 61 [of the SRCA] precludes the applicants [sic] claim for compensation at all [the relevant document is identified as T34 page 27 of the section 37 Statement of P&O Maritime Services Pty Ltd and further relevant documents]. The precise wording of this Question has been kept in the same terms as what is stated in the letter filed and served by the Respondent on 17 November 2015 and accepted into evidence by Senior Member Walsh in the written reasons dated 3 May 2016 [para 18 page 7].
The Company made further written submissions on 23 July 2018.
On 27 July 2018 Mr O’Sullivan wrote to the Tribunal asking for the directions made on

9 May 2018 and 2 July 2018 to be stayed, pending him obtaining access to Fremantle Hospital records under freedom of information laws and obtaining legal representation and advice.
On 2 August 2018 the Company informed the Tribunal that it did not object to granting Mr O’Sullivan more time to obtain relevant hospital records but it otherwise opposed the request for directions to be stayed.
On 3 August 2018 in order to allow the Tribunal a short period of time in which to properly consider the issues raised by the parties, and to determine Mr O’Sullivan’s requests for referral of an alleged question of law to the Federal Court and a stay, I issued further directions in the following terms:
In reference to matters raised in submissions relating to s 45 and s 69 of the Administrative Appels Tribunal Act 1975 (AAT Act), on 27 July 2018, the applicant sought additional time and a stay of directions made on 9 May 2018.
The date for the applicant to comply with Direction 1 is 30 July 2018.
Submissions of the respondent relating to the applicant’s request for additional time were not filed until 2 August 2018. Subject to the provision of supporting documents by the applicant, the respondent agrees with the applicant’s request relating to Directions 1(a) and (c), but not otherwise.
In the particular circumstances and in order to avoid prejudice, it is appropriate to allow a short period of time, from 31 July 2018 to 16 August 2018, for the matters raised in submissions by the parties in respect of s 45 of the AAT Act to be properly considered by the Tribunal when determining the applicant’s request for a stay of the 9 May 2018 Directions.
The Directions made on 9 May 2018 will be varied accordingly.
I note that the additional time will enable the applicant to obtain legal representation or advice should he choose to do so and, if he has not already done so, to make an application to the Attorney-General under s 69 of the AAT Act.
Furthermore, with regard to Directions 1(a) and (c) made on 9 May 2018, subject to further order, the additional time sought by the applicant will be granted, but the grant is conditional on the applicant giving the Tribunal and the respondent documentary evidence of his request for information from the Fremantle Hospital within 14 days.
For these reasons, the Tribunal varies the Directions made on 9 May 2018 such that:
1. on or before 16 August 2018, the applicant is to give to the Tribunal and the respondent:
a.the names of all his employers, on and off shore, from December 1993 to the present; and
b.documentary evidence of his request for information from the Fremantle Hospital, including a copy of the request made and a receipt of lodgement; or
c.the names of all treating doctors he consulted in respect of his claimed back condition from 16 December 1993 to the present; and
d.other medical information he considers relevant to his case, in the form of hospital records for example;
2. if 1(b) is satisfied, on or before 13 September 2018, the applicant is to give to the Tribunal and the respondent:
a.the names of all treating doctors he consulted in respect of his claimed back condition from 16 December 1993 to the present; and
b.other medical information he considers relevant to his case, in the form of hospital records for example;
3.should the applicant not comply with Directions 1 or 2 within the specified dates:
a. within 14 days of the specified date, the applicant is to give to the Tribunal written submissions why the whole of his application should not be dismissed and should, nevertheless, proceed; and
b. within 14 days thereafter, the respondent is to give to the Tribunal and the applicant submissions in response to those given by the applicant pursuant to Direction 3(a), if any.

On 15 August 2018, I issued an interlocutory decision with extensive reasons addressing Mr O’Sullivan’s requests.[34]
[34] O’Sullivan v P & O Maritime Services Pty Ltd [2018] AATA 2899.
On 16 August 2018, Mr O’Sullivan gave the Tribunal a receipt of his 26 July 2018 application to the Fiona Stanley Fremantle Hospitals Group for access to information. It should be noted that the information sought is confined to “Summaries and notes of inpatient O’Sullivan injury 26 August 2014” – this request does not include any hospital records from prior periods reaching back to December 1993.[35]
[35] Exhibit 1, ‘7’.
On 23 August 2018 Mr O’Sullivan provided the Tribunal with the following information in response to the 9 May 2018 directions, as varied:
1{a} There is no history of employment from 2014 to present, the applicant has previously obliged the respondent with employment history from 1993 to 2014 by letter dated 1st December 2014, in reply to there [sic] letter of request under section 67 of the SRCA 1992, dated 21 November 2014 and complied with 67{2} of the Act.
1{b} The Applicant forwarded the Respondent and Tribunal the required documents on 16 August 2018.[36]
[36] Ibid, ‘8’.
On 24 August 2018 the Company responded to Mr O’Sullivan seeking clarification if the information about employment related only to the “Maritime Industry” or to all employment, and suggesting that no employment history from 1994 to 2006 had been provided.
On 4 September 2018 Mr O’Sullivan clarified that he had not been employed by any employers since 2014.
On 7 September 2018 a listed telephone directions hearing commenced. Mr O’Sullivan informed the Tribunal that he was too unwell and he was unwilling to proceed. The Tribunal held the hearing over to 25 September 2018. The Tribunal notes that Mr O’Sullivan subsequently supplied a medical note dated 14 September 2018 from Dr Price which states that Mr O’Sullivan had been suffering from a chest infection.
On 10 September 2018 Mr O’Sullivan gave the Tribunal a letter addressed to the Company’s solicitor making a further response to the Company’s request for clarification about his previous employment, in which he said:[37]
I am taking high doses of medication prescribed by my treating doctor for chronic lower back pain and left leg pain due to the injury on 16/12/1993 and following aggravation on 26/8/14.
As the matter proceeds before the AAT, I am finding it difficult to stay within the time limits imposed by the Tribunal and the effects of the medication cause a confusing state of mind.
This makes reading and replies to complex legal documents difficult.
To clarify the Applicants response to HFW’s letter dated 24 August 2018 whereby the Applicant relied upon the 4 September 2018 and further to that response.
The Applicant has not been employed by any employers, what so ever, from the year 2014 to the present but does include a reference that P&O Maritime Service Pty Ltd, or the Seafarers Safety Net Fund be taken as the applicants employer for the purpose of his Claim for Workers Compensation under the SRCA 1992, dated 29 October 2014.
[37] Ibid, ‘9’.
On 20 September 2018 Mr O’Sullivan gave the Tribunal a letter in which he said:
The Applicant in this matter stands down from the role as a self representative [sic].
On the grounds.
1.I am taking high daily doses of medication prescribed by my treating doctor for chronic lower back and left leg pain due to the injury on 16/12/1993 and following aggravation on 26/8/14.
2.As the matter proceeds before the AAT, I am finding it difficult to stay with in [sic] the time limits imposed by the tribunal and the effects of the medication cause a confusing state of mind.
3.This makes reading and replies to complex legal documents difficult.
4.The matter before the Tribunal is whether the injury is continuing, or fresh from the 16/12/93, including the injury on 26/8/2014.
5.P&O Maritime Services Pty Ltd has neglected to offer any sort of Rehabilitation or Medical assistance during that time period and to the present date.
6.All of the above has caused further injury and continuing to cause injury.
For these reasons I resign my position as a self representitive [sic] effective immediately.
I now require Legal [sic] advice and further time extention [sic] to engage a legally qualified practitioner to represent me.
I have applied to the Governor-General [Attorney-General] for legal assistance and enclose proof of receipt of the application.
I also enclose a letter from my treating doctor outlining the difficulties I have experienced as a self representitive [sic], including chronic pain and medication prescribed to treat the symptoms.
I apply to the AAT for an adjournment to post-pone [sic] matter No 2015/0698 and continue when the applicant is represented.[38]
[38] Ibid.
The brief report of Dr Price attached to this letter is in the following terms:
Mr O’Sullivan has chronic lumbosacral radiculopathy/slipped disc. He is on pain relievers for chronic lower back and left leg pain. Due to his injury on 16/12/1993 and following aggravation on 26/8/14.
As a self represented applicant he is finding it difficult.
On 19/7/2018 his pain relieving medications were increased. This increase may affect his mental processing abilities (the effect varies between people).
Since the date I issued the first workers compensation certificate (on 29/8/2014) he has regularly attended myself and been issued with work cover progress certificates, naming P&O Maritime Service Pty Ltd as the employer.
As I understand it the Company is not paying his incurred medical expenses.
Due to his symptoms he has no capacity to work and is due for review on on [sic] 3/11/18. As a self represented applicant Mr O’Sullivan states to me he is having difficulty performing his role due to the medications he is on.[39]
[39] Ibid.
Also attached to the letter is an Australia Post Lodgement Receipt in respect of an item addressed to Attorney Generals Dep Assistant Secretary bearing a date stamp of 18 September 2018.[40]
[40] Ibid.
On 25 September 2018 I conducted a telephone directions hearing (held over from

7 September 2018). In the course of this hearing, Mr O’Sullivan refused to answer questions on grounds that he was no longer representing himself and he wanted to obtain legal advice before complying with any Tribunal directions or answering questions. I refused his application for an indefinite delay in the proceedings but allowed further time for the parties to consider their respective positions and to make submissions, as follows:
Having heard the parties, and pursuant to s 33(2A)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal DIRECTS:
1.Direction 3 of 3 August 2018 is vacated;
2.on or before 20 October 2018, the applicant is to give to the Tribunal written submissions why the whole of his application should not be dismissed and should, nevertheless, proceed; and
3.within 10 days thereafter, the respondent is to give to the Tribunal and the applicant written submissions in response to those given by the applicant pursuant to Direction 2, if any, or otherwise in respect of the proceedings.
The application was set down for a dismissal hearing on 11 December 2018.
On 19 October 2018 Mr O’Sullivan informed the Tribunal that his application for assistance from the Attorney-General “is still going through the process” and stated:
…
The Applicant was up to date with the directions dated 9 May 2018, varied 3rd August 2018 and varied again on the 15 August 2018 when the application for legal assistance from the Attorney-General was made.
The Applicant had complied with direction 1{a}{b} and then had until 20 September to comply with Direction 2{a} and 2{b} of the directions given on the 3rd August 2018 and varied again on the 15 August 2018.
2{a} and 2{b} of these directions form part of the evidence and it is not unreasonable that the applicant would want the opportunity to disscuss [sic] that, with Legal representation, to ensure the Tribunal is presented with all the documents that would assist in the decision making.
The above may assist the Tribunal in any further decision making, while the grant from the Attorney-General assistance branch is being decided.[41]
[41] Ibid, ‘Letter from Mr O’Sullivan dated 21 November 2018’.
On 30 October 2018 solicitors for the Company filed extensive submissions seeking dismissal of the application under s 42A(5)(b) of the AAT Act on the grounds that Mr O’Sullivan failed to comply with directions requiring him to provide the names of all his employers (on and off shore) and the names of treating doctors he consulted in respect of his claimed back condition since December 1993.
On 21 November 2018 Mr O’Sullivan wrote to the Tribunal and said:
The applicant provided the Tribunal with a medical letter from Dr Bradley Price dated 19 September 2018 and as stated in that letter, pain relieving medication were increased on 19 July 2018 and the applicant was due for review on the 3 November 2018.
During that period the applicant has requested, the Tribunal postpone the matter, and applied for financial assistance for legal assistance, the Tribunal and the Respondents Solicitors have refused to allow the matter be [sic] to be postponed until the applicant can gain legal assistance.
The applicant was reviewed by Dr Bradley Price, as stated in the letter, and issued a further progress work cover certificate.
Dr Price has made comment on the progress certificate that states:
Patient will try and reduce medication and comply with Tribunal recommendations.
Since the review, by Dr Price, the applicant has been gradually reducing the Medication, in a genuine attempt to comply with the Tribunal time lines.
The respondents Solicitors have supplied the applicant with Submissions of the Respondent pursuant to the order of Member Webb made 25 September 2018.
The document is massive and provides, no index, nor is it in date order, and contains numerous cases that need to be examined.
To date, the applicant is unrepresented and can not [sic] meet the Tribunal deadline, to provide a response to the respondents dismissal application and informs the Tribunal no written submissions will be made.[42]
[42] Ibid, ‘Letter dated 21 November 2018’.
I heard the dismissal application on 11 December 2018, as listed. Mr O’Sullivan appeared and both parties made extensive oral submissions.
Mr O’Sullivan informed me that no decision had yet been made in respect of his application for assistance from the Attorney-General. I understand that an incorrect form was used and on 2 October 2018 supplementary information was sought by the Attorney-General’s Department. Mr O’Sullivan provided this supplementary information to the Attorney-General’s Department on 8 November 2018. Mr O’Sullivan steadfastly refused to provide the Tribunal with documentary proof of having done so. Nevertheless, the Company accepted that he had done so and I will proceed on that basis.
Mr O’Sullivan informed me of the medications prescribed by Dr Price. These include Panadeine Forte, Brufen and Temaze. He explained that he had been taking more than the prescribed dose of the medication in order to manage the pain he experienced, but he had reduced his daily intake in recent weeks. He explained that after taking the medications he would wake up groggy and since reducing the dosage, his demeanour had improved. The Company’s counsel, Mr Lenczner, did not take issue with Mr O’Sullivan’s account, but noted that Mr O’Sullivan has engaged cogently in interlocutory hearings, some of which have been lengthy and complex, without apparent mental or cognitive difficulty. While I agree with this observation, nevertheless, I accept Dr Price’s report that the medications he prescribed may affect Mr O’Sullivan’s mental processing abilities.
DISMISSAL
Mr O’Sullivan asserts that his application should not be dismissed. He maintains that he has provided information required of him in respect of previous employers and treating doctors. In his submission, his response to the notice issued under s 67 of the SRC Act by the Company sets out this information. He cavils with the Company’s right to require him, again, to provide further information and he challenges the Tribunal’s power to direct him to do so. In so doing, as I understand his submission, he is raising, impliedly at least, the same or similar issues he previously raised on 17 February 2016. This notwithstanding, he maintains that he complied with the Tribunal’s 9 May 2018 direction, as amended and extended, by providing further information in respect of efforts to obtain access to medical records of the Fremantle Hospital and the absence of any employment, or employers, since 2014 . Mr O’Sullivan asserts that he was up to date with the directions and he has not failed to comply with them.
Furthermore, Mr O’Sullivan argues that his application for legal assistance from the Attorney-General has not yet been determined and it would be wrong for the Tribunal to dismiss his application for review while that matter is still pending. In Mr O’Sullivan’s submission, he is entitled to obtain legal advice in respect of the Tribunal proceedings and, in his present circumstances, he should be allowed time to do so. The particular circumstances to which he alludes relate to difficulty dealing with legal and procedural aspects of the proceedings as a result of adverse effects of the medications prescribed by his treating doctor on his mental processing abilities. He asserts, moreover, the medications were increased on 17 July 2018 and this increased the adverse effects on his mental ability. It is these difficulties, he submits, that caused him to resign from representing himself in the proceedings. Furthermore, he explained that he does not have money to engage a lawyer, even on a progressive payment basis. It is for these reasons, in these circumstances, as an unrepresented and unwell applicant seeking legal assistance, Mr O’Sullivan argues that the Tribunal should not dismiss his application.
Mr O’Sullivan asserts that there are legal issues in his case that need to be “sorted out”, and moving to dismiss his application before that has been done would be unfair. As I comprehend his submissions on this point, the particular legal issues to which he refers are those he has raised previously in these proceedings and in proceedings before the Federal Court and the High Court, including the Tribunal’s power under s 33 of the AAT Act to compel him to provide information, the proper characterisation of his claimed injury in 2014 as a continuation of his 1993 injury or something “fresh”, and whether s 61 of the SRC Act operates as a bar to payment of compensation having regard to the judgement handed down by the District Court of Western Australia in 1997.[43] In Mr O’Sullivan’s submission, should his application before the Tribunal be dismissed before matters of this kind have properly been dealt with, significant unfairness to him will result.
[43]O’Sullivan v P & O Maritime Services Pty Ltd [1998] DCWA CIV2466 of 1997.
The Company asserts that Mr O’Sullivan has failed to comply with directions of the Tribunal within a reasonable time. In the Company’s submission, the failure is in respect of directions requiring him to provide the names of all employers, on and off shore, from 16 December 1993, and the names of doctors who treated his back condition after that date. The Company says that directions of that kind were issued by the Tribunal on
23 December 2015 and 9 May 2018, with subsequent amendment on 3 August 2018 and extension of time being granted on 15 August 2018, and yet, presently, despite those extensions, Mr O’Sullivan has not fully complied. His failure to do so, the Company argues, exceeds the “reasonable time” contemplated by s 42A(5)(b) of the AAT Act.
Furthermore, the Company says that Mr O’Sullivan has repeatedly and steadfastly refused to provide the names of employers outside the maritime industry in the period from 16 December 1993. The Company considers that Mr O’Sullivan alluded to employment of this kind in the information provided to the Company in response to a notice under s 67 of the SRC Act in December 2014 and in information given to the Tribunal during the interlocutory hearing on 11 December 2018, albeit unsworn, such that an inference should be drawn that he has engaged in employment since December 1993 which he has not yet disclosed.
In the Company’s submission, the reasons Mr O’Sullivan provided, and the arguments he advanced against the directions made, cannot and do not excuse his failure to comply with the specific directions within a reasonable time. The Company asserts that Mr O’Sullivan has repeatedly demonstrated his ample ability to grapple with legal issues, representing himself, demonstrating considerable coherence of expression and thought during interlocutory hearings on 11 December 2018 and previously. The Company submits that his desire to obtain legal assistance or advice does not bear on his ability to comply with the Tribunal directions – the Company says he has the information and he is capable of providing it, but he has chosen not to do so. The Company argues that it is not necessary for Mr O’Sullivan to obtain legal advice about giving the Tribunal the names of his employers and doctors who have treated his back condition since December 1993 – the only basis for him to require legal advice about such matters might be in respect of the lawfulness of the direction and his suggestion that Tribunal’s power to direct is in some way limited or prohibited by s 67 of the SRC Act, which the Company says is plainly not correct. Reasoning of this kind does not justify disobedience with the Tribunal’s direction in the Company’s view.
That being so, the discretion to dismiss the whole of Mr O’Sullivan’s application arises, and in the Company’s submission, Mr O’Sullivan has not provided any basis to justify the Tribunal permitting him to proceed further with his application, such that it should now be dismissed.
On that issue, the Company asserts that Mr O’Sullivan has not assisted the Tribunal, rather his opposition and refusal to provide the information as directed, which is centrally relevant to the matters to be determined by the Tribunal, has frustrated the proceedings and caused significant delays. In circumstances of this kind, so the argument goes, there is no valid basis for exercise of the discretion conferred by s 42A(5) of the AAT Act. For this reason, the Company presses for dismissal of the application rather than any other option or remedy.
The Company argues that should any other course be adopted, such as listing the application for hearing, absent full disclosure of the information by Mr O’Sullivan as directed, it would be placed at a disadvantage, the Tribunal may be deprived of further relevant information and unfairness would result. The information, the Company says, is necessary to allow a proper investigation of Mr O’Sullivan’s application in the Tribunal, including forensic examination and expert assessment in a manner that is consistent with the applicable legislation and established Tribunal procedure. The Company argues that the Tribunal directions cannot simply be ignored and Mr O’Sullivan’s refusal to assist the Tribunal and to comply with the directions should result in his application being dismissed. In this regard, the Company maintains that the existence of other Tribunal powers, such as the summons power, which might enable the Company (and the Tribunal) to obtain relevant information from sources other than Mr O’Sullivan, are irrelevant when considering exercise of the discretion conferred by s 42A(5) of the AAT Act in circumstances of the present kind – they are simply not relevant and they should not be taken into account
The issue is to be decided under s 42A(5) of the AAT Act, which is in the following terms:
(5)If an applicant for a review of a decision fails within a reasonable time:
(a)to proceed with the application; or
(b)to comply with a direction by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision.

With regard to s 42A(5)(b), the following questions arise:
(a)has Mr O’Sullivan failed to comply with a direction of the Tribunal in relation to the application?; and if so,
(b)is the failure in excess of a “reasonable time”?; and if so,
(c)is it appropriate to exercise the discretion to dismiss the application?
Failure to comply
It is quite clear that Mr O’Sullivan has provided some information under the Tribunal’s
9 May 2018 directions, as amended and extended. He has provided the names of his employers in the maritime industry from December 1993 to 2014, and he has confirmed that he did not have any employers from 2014. He has provided the names of two general practitioners and a lodgement receipt in respect of an application for access to certain information held by the Fremantle Hospital (but not any resulting information).
From this it follows that Mr O’Sullivan has complied, at least partially, with the particular directions made.
Nevertheless, there is an open question whether Mr O’Sullivan has fully complied. Considering the information he has provided and all that he has said of relevance, it is possible, even likely, that he has not. On the brief unsworn information he gave during the interlocutory hearing on 11 December 2018, it appears that he may have been engaged by one or more employers in the period from 1994 to 2006 but any resulting earnings were not sufficient to reach the minimum for taxation to be payable. If that is correct, Mr O’Sullivan has not yet divulged the names of those employers and his failure to do so would be contrary to the 9 May 2018 direction of the Tribunal – this would amount to a failure to comply with the direction.
The difficulty here is proof of facts. The Company urges me to draw an inference that Mr O’Sullivan has failed to disclose employers outside the maritime industry, particularly in the period from 1994 to 2006. The basis for the inference appears in Mr O’Sullivan’s
1 December 2014 response to the Company’s notice under s 67 of the SRC Act, in which he listed various maritime employers and said:
The Claimant did not resume duties in the Maritime Industry after 16/12/1993 until 19/7/2006.[44]
[44] Exhibit R3, ‘15’.
Furthermore, the Company asserts that Mr O’Sullivan’s resistance or opposition to the particular direction requiring him to provide this information strongly suggests that he has information he does not want to disclose about employers outside the maritime industry. The Company draws further support for this proposition from the very brief unsworn information Mr O’Sullivan disclosed, perhaps inadvertently, in the interlocutory hearing on 11 December 2018.
Mr O’Sullivan told me that the information he provided to the Company and to the Tribunal is truthful.
On balance, an inference may be drawn that, in the period from 1994 to 2006, Mr O’Sullivan obtained some on-shore employment, albeit perhaps at a low level, sporadically or from time to time – only so much can be drawn from what he has previously given and said. He has not disclosed the names of the employers involved. To that extent he has failed to fully comply with Tribunal direction 1(a) issued on 9 May 2018, as varied and extended.
In circumstances of this kind, considering the terms of s 42A(5) of the AAT Act, there is a question whether the discretion conferred may be enlivened where partial compliance with a direction of the Tribunal is established. It is necessary to carefully consider the subject and terms of the particular direction. In this instance, the direction requires Mr O’Sullivan to provide the names of all his employers, on and off shore, from December 1993 to the present. Providing the names of some of his employers does not satisfy the direction.
For this reason, I am satisfied that Mr O’Sullivan has failed to comply with the direction and the discretion will be enlivened if his failure was not within a reasonable time.
With regard to Mr O’Sullivan’s compliance with the 9 May 2017 direction requiring him to provide the names of doctors who treated his back condition from 16 December 1993, once again, the extent of his compliance is not entirely clear.
Mr O’Sullivan has given the Company and the Tribunal the names of two general practitioners – Dr Troy and Dr Price. He has also given the Tribunal a lodgement receipt in relation to his request for information from the Fremantle Hospital.
It is possible, even likely, that he obtained treatment for his back condition after December 1993 from doctors other than Dr Troy and Dr Price. He has not yet provided any information in respect of any other doctor who has treated his back condition since 1993.
No information has been provided as a result of his freedom of information application to the Fremantle Hospital. The fact that Mr O’Sullivan sought information from the Fremantle Hospital suggests that he may have obtained treatment at the hospital for his back condition, so much may be inferred. If that is correct, the present materials do not, however, establish that any such treatment was provided by a doctor. While it is possible, even likely, that he was treated by a doctor, it is also possible that any treatment he obtained was provided by a nurse or some other kind of health practitioner.
To my mind, while the present evidence and the materials before the Tribunal may be sufficient to reasonably ground a suspicion or even a belief (being conceptions that are well understood in law relating to warrants, for example[45]) that he has obtained medical treatment for his back condition since 1993 from doctors whose names he has not disclosed, it is not presently established on the balance of probabilities that he did so. From this it follows that the possibility Mr O’Sullivan has failed to fully comply with Tribunal direction 1(c) issued on 9 May 2018, as varied and extended, if at all, is not presently established as a fact.
[45] See George v Rockett [1990] HCA 26 at [114]-[115], for example.
Within a reasonable time
As I have said, the discretion conferred by s 42A(5) of the AAT Act will be enlivened if Mr O’Sullivan’s failure to comply with Tribunal direction 1(a) of 9 May 2018, as varied and extended, was not within a reasonable time.
Considering s 42A(5)(b) of the AAT Act and the proper construction of “failure to comply with a direction” “within a reasonable time”, there are several things to say.
Firstly, the phrase “reasonable time” is not given any special meaning for the purposes of the section. The span of time that may be reasonable is to be assessed in each case, having regard to all relevant circumstances.
Secondly, it is not correct to say that the period must necessarily be short for it to be “reasonable”. The objectives of the Tribunal that are set out in s 2A of the AAT Act cannot properly be construed to support any such proposition –
2ATribunal’s objective
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a)is accessible; and
(b)is fair, just, economical, informal and quick; and
(c)is proportionate to the importance and complexity of the matter; and
(d)promotes public trust and confidence in the decision‑making of the Tribunal.
As can be seen, quickness is but one objective, coupled with fairness, justice, economy and informality, where considerations of accessibility, proportionality and public trust also arise.
Thirdly, for the purposes of s 42A(5)(b), the phrase “reasonable time” does not refer to the duration of proceedings in the Tribunal in respect of the particular application, although that may be a relevant matter to consider in the assessment of “reasonable time” in the particular circumstances of any case. The terms of the particular direction specify the time for compliance and it may be accepted that, generally, any issue of failure to comply within a “reasonable time” arises only where this temporal limit is exceeded.
Of course, where the Tribunal has extended time for compliance with a particular direction, or set of directions, the period of any such extension may be a relevant consideration when assessing the limit of “reasonable time” in the particular circumstances.
Fourthly, the assessment of “reasonable time” for the purposes of the section is not an abstract assessment based only on the amount of time that has already elapsed from the specified date for compliance. A proper assessment of “reasonable time” must include consideration of the particular circumstances of the person who is subject of the Tribunal’s direction that bear upon his or her capability to comply with the direction and the amount of time reasonably required to do so. For example, where the person’s mental health is such that he or she is rendered incapable of complying with the direction for an uncertain time reaching into the future, that may be a relevant consideration to which regard should be had when determining if the discretion conferred by s 42A of the AAT Act is enlivened. Nonetheless, it would be difficult to construe “reasonable time” for the purposes of
s 42A(5)(b) of the AAT Act to include an indeterminate period of uncertain duration or one that is ongoing without any foreseeable or likely end. Uncertainty of this kind may be accommodated only so far in procedural flexibility or in respect of “reasonable time”, where other circumstances and parties must be considered in the service of fairness and justice.
In Mr O’Sullivan’s case, certainly, the duration of proceedings relating to his application in the Tribunal is long. The proceedings have been on foot since 12 February 2015. This is a very long time for any application to persist in the Tribunal without being finally heard and determined. Examination of the reasons underlying the longevity of the Tribunal proceedings reveals that much time has elapsed during proceedings in the Federal Court of Australia and in the High Court of Australia, during which no progress was made in the Tribunal proceedings. Furthermore, interlocutory issues have arisen in the Tribunal proceedings which have been dealt with at some cost of time. These are not matters of fault by either party or the Tribunal, but rather they are the necessary consequences of legitimate actions in the course and conduct of the proceedings. The provision of time for each party to properly consider and respond to, and to make informed submissions about, issues that have been raised and agitated in the proceedings is important in providing fairness to each party and ensuring that each has a reasonable opportunity to present their case. That said, certainly, some delay has been caused by Mr O’Sullivan’s failure to comply with Tribunal directions.
While the longevity of these proceedings may be a relevant matter to consider when determining whether Mr O’Sullivan failed within a reasonable time to comply with the Tribunal’s 9 May 2017 direction, as varied and extended, it does not follow, and it should not be assumed, that the period of time which may be considered reasonable for the purposes of s 42A(5) of the AAT Act must be curtailed or assessed more stringently where the particular proceedings are long and protracted. The assessment of “reasonable time” requires consideration of all relevant circumstances, including previous non-compliance by the person and delays arising from the conduct or circumstances of the person, as well as the interests of other parties.
To the extent that the Company argues Mr O’Sullivan failed to comply with directions made by the Tribunal in December 2015 and February 2016, it should be noted that the non-compliance resulted in his application being dismissed by the Tribunal in circumstances where Mr O’Sullivan had not been provided with an opportunity to make submissions or be heard, such that the dismissal decision was overturned on appeal. On remittal to the Tribunal, the dismissal was not revisited at that time as other interlocutory issues arose and were dealt with, which then resulted in further proceedings in the Federal Court and, ultimately, the High Court.
Furthermore, on 30 November 2015, Mr O’Sullivan wrote to the Tribunal seeking, among other things, “…directions to answer the question, who is deemed to be the claimants employer”.[46] On 17 February 2016 he again wrote to the Tribunal seeking referral of a question of law to the Federal Court, the question being “…[c]an a Claimant be compelled to provide information of or during a period of time served outside the Maritime Industry under the Rules and Regulations of the Seafarers Rehabilitation and Compensation Act 1992”.[47] These matters were not addressed by the Tribunal before Mr O’Sullivan’s application was dismissed on 11 March 2016.
[46] Exhibit 2, ‘19’.
[47] Ibid ‘21’.
Subsequent to the Court’s remittal to the Tribunal on 9 August 2016, Mr O’Sullivan’s question regarding his employer was addressed on 7 October 2016 in O’Sullivan and P & O Maritime Services Pty Ltd [2016] AATA 865. Mr O’Sullivan then commenced further proceedings in the Federal Court and in the High Court. The proceedings resumed once judgement had been given. Soon thereafter, among other things, Mr O’Sullivan requested referral of a question of law to the Federal Court. This was dealt with on 15 August 2018 in O’Sullivan v P & O Maritime Services Pty Ltd [2018] AATA 2899. It should be noted that the question Mr O’Sullivan posed for referral to the Federal Court in July 2018 is substantially different than the question he raised on 17 February 2016, which he did not then repeat. Nevertheless, as will appear, that the earlier question is one that is alive and unresolved for Mr O’Sullivan, in respect of which he wants to obtain legal advice.
These are matters that bear on the assessment of “reasonable time” in respect of Mr O’Sullivan’s alleged failure to comply with the Tribunal’s directions of 25 February 2016 and 9 May 2018.
The time for compliance with the 9 May 2018 directions has been extended by the Tribunal on several occasions in response to particular circumstances and issues raised and agitated by one or both parties. The final date for Mr O’Sullivan to comply with Tribunal direction 1 of 9 May 2018, as amended and extended, is 23 August 2018. Almost six months have elapsed since that date, without Mr O’Sullivan fully complying with the direction. There is some power in the Company’s submission that this exceeds a reasonable time on any measure.
Mr O’Sullivan has provided three main reasons for this –
(a)his mental processing abilities have been adversely affected by prescribed medications, such that he feels no longer capable of representing himself and informed the Tribunal on 20 September 2018 that he “stands down” from doing so (the health reason);
(b)before proceeding further and providing any further information to the Tribunal, he requires legal advice about aspects of his case (the legal advice reason), including, as I understand him, particular issues he has raised regarding –
(i)the Tribunal’s powers and the lawfulness of directions made that require him to provide information outside the maritime industry;
(ii)information he has been directed to provide;
(iii)materials and evidence that is relevant to his claim; and
(iv)the effect, if any, of the 1997 District Court of Western Australia judgment and s 61 of the SRC Act on his case; and
(c)he is actively seeking legal assistance from the Attorney-General, but his application has not yet been determined and the amount of time this will take is beyond his control (the application for assistance reason).
Whatever is to be made of these reasons and related submissions, it is quite clear that Mr O’Sullivan is refusing to proceed further until these matters are resolved. How long that may take is not possible to know at this juncture.
The Company argues that none of these reasons prevent Mr O’Sullivan from providing the names of employers and any other doctors who have treated his back condition since 1993. In the Company’s submission, any conception of “reasonable time” in which to do so has long passed. While there is some force in these submissions, the reasons Mr O’Sullivan has given and the assessment of “reasonable time” within which compliance should be made are not confined to his capability to comply with the particular direction alone.
Health reason
Considering Mr O’Sullivan’s health reason, Mr O’Sullivan has not asserted that he is unable to comply by reasons of mental illness or some other serious impediment, nor has he suggested that he does not recall the names of previous relevant employers because his memory is affected by prescribed medications. Rather he has argued that he has difficulty dealing with legally complex documents and issues and adhering to Tribunal time limits. On Dr Price’s evidence, this may be accepted. But providing the names of all previous employers is of a different order – Mr O’Sullivan has provided the names of employers in the maritime industry without apparent mental processing difficulty. Furthermore, Mr O’Sullivan did not point to any difficulty naming his previous employers or with the meaning of “employer”.
While the state of his health and the effects of prescribed medications may bear upon his mental processing ability to some extent, I think it is clear enough that Mr O’Sullivan is choosing not to provide the names required of him, and he is making that choice, contrary to the Tribunal’s 9 May 2018 direction, because he is of the view that the Company and the Tribunal are either not entitled to the information sought or because provision of it may prejudice his case in some way, and those are matters (among others) about which he wants to obtain legal advice. As I have said, the question he posed for referral to the Federal Court on 17 February 2016 has not squarely been addressed and it remains a live issue in his mind.
Even if I am wrong about that, Mr O’Sullivan has made it abundantly clear that he will not provide any further information without first obtaining legal advice. That is a matter for him and, as I explained to him, it is a matter that places his application at risk of dismissal.
I am not persuaded that Mr O’Sullivan’s health reason prevents him from complying with the Tribunal’s 9 May 2018 direction, as varied and extended. I accept, however, that the state of his health and the effects of prescribed medications contribute to his desire to obtain legal representation and advice.
Legal advice reason
Mr O’Sullivan’s legal advice reason is associated with some difficulty. The issues about which he says he intends to seek legal advice have been raised previously and repeatedly over an extended period of time since January 2016. He has been provided ample opportunity to obtain legal advice. This is a matter to which I expressly referred in directions given on 3 August 2018 and again in the interlocutory decision I gave on
15 August 2018. That he has not yet obtained legal advice, despite the passage of several months, must be weighed against his submissions about his inability to afford a solicitor.
I accept Dr Price’s evidence that Mr O’Sullivan is unfit for work. I also accept that Mr O’Sullivan has little money and he cannot afford to pay a solicitor, even on a pay-as-you-go basis. Mr O’Sullivan refused to disclose the contents of his application for assistance from the Attorney-General, but it is likely that impecuniosity is a factor.
Furthermore, as I have said, on 17 February 2016 Mr O’Sullivan sought to have a question of law referred to the Federal Court for consideration and judgement. Had these matters been squarely addressed by the Tribunal at the time, issues relating to the Tribunal’s power under s 33 of the AAT Act to direct Mr O’Sullivan to provide information from outside the maritime industry may have been dealt with and uncertainties in his mind or faults in his understanding laid to rest. Absent that, those uncertainties persist and contribute to the present state of the proceedings – the legal question he raised in February 2016 is yet to be dealt with by the Tribunal and it is a question about which Mr O’Sullivan wants to obtain legal advice.

As the Tribunal has not yet dealt with the matters Mr O’Sullivan raised on
17 February 2016 and those matters to some extent, perhaps even a significant extent, underlie his failure to comply, the assessment of “reasonable time” may extend until the Tribunal has dealt with the matters raised before it.
Application for assistance reason
As for his application for assistance reason, it may be accepted that the state of his health and the effects of prescribed medications upon his mental processing ability contribute to difficulties dealing with legal matters and timelines and these difficulties underlie his stated intention to obtain legal representation.
Mr O’Sullivan informed me that he has very little money. That being so, it may also be accepted that some degree of impecuniosity is one reason why he has not yet obtained legal representation and this underlies his application to the
Attorney-General for assistance.
When asked about progress of his application, Mr O’Sullivan explained that he had used an incorrect form from the Attorney-General’s Department website and on 2 October 2018 that Department had requested additional information from him, including information necessary for a police check to be completed. This he had supplied on 8 November 2018. In Mr O’Sullivan’s submission, determination of his application may take a deal of time. He explained that the holiday season may impede progress of his application and the police check, alone, is expected to require several weeks.
I accept that all of these matters relating to assessment and determination of his application to the Attorney-General are beyond his control.
The nub of the issue for the Tribunal is whether the additional time it will take for Mr O’Sullivan to obtain a determination from the Attorney-General and, thereafter, to comply fully with the Tribunal direction 1(a) as given on 9 May 2018, as varied and extended, is within a “reasonable time” for the purposes of s 42A(5). While the span of time this may take is not presently known, the Attorney-General’s assessment and determination of Mr O’Sullivan’s request may be expected within several weeks. In the particular circumstances, a reasonable time for Mr O’Sullivan to comply may extend to include the time required for the Attorney-General to determine Mr O’Sullivan’s request for assistance.
Prejudice
The Company argues it is prejudiced by delays in the proceedings that result from Mr O’Sullivan’s failure to comply with Tribunal directions and his failure to meet his obligation to assist the Tribunal – the degree of prejudice increases with the passage of time, rendering it more difficult to obtain relevant and appropriate evidence with which to properly evaluate Mr O’Sullivan’s 2014 claim.
It can readily be accepted that difficulties obtaining relevant evidence in a particular case may increase with delay and the effluxion of time, and where the delay is the result of inaction or some failing of a claimant, prejudice might arise. In this case, while there may be some prejudice to the Company in respect of any employers Mr O’Sullivan has not yet disclosed, there is no prejudice to the Company in respect of the employers and doctors he has disclosed. The Company’s argument about prejudice must be considered in the context of the proceedings as a whole, where the Company has been provided with information of direct relevance, including the names of Mr O’Sullivan’s maritime industry employers and doctors who have treated his back condition since December 1993, which it has yet to act upon in these proceedings. No requests have been made for those named to be summonsed to provide relevant records to the Tribunal and no information has been obtained from these employers and doctors that may assist the Tribunal to determine Mr O’Sullivan’s application.
Obligation to assist
The Company argues that Mr O’Sullivan has failed to meet his obligation to assist the Tribunal and delays have resulted from this failure.
The proposition that delays have arisen as a result of Mr O’Sullivan’s failure to assist the Tribunal must be considered in the context of the proceedings.
Mr O’Sullivan has raised a number of legal issues of relevance to the proceedings and his claim. There is no fault in him doing so. The Tribunal’s responses to these issues have taken some time, and one such issue raised in February 2016 has yet to be dealt with. The extent to which Mr O’Sullivan has used his best endeavours to assist the Tribunal must be viewed in that context.
Mr O’Sullivan did not make detailed submissions on this point, but noted that he is unrepresented and unwell. It is at least arguable that by raising legal issues in this case, and testing these to obtain authoritative judgements from the Courts, Mr O’Sullivan has endeavoured to assist the Tribunal to make the correct or preferable decision, being a decision that is good in law. Whether this is correct or not, it is an unavoidable fact that long delays have resulted. Some prejudice may arise, but prejudice arising from delays relating to the duration of court proceedings is not something to be held against Mr O’Sullivan in these proceedings.
Mr O’Sullivan’s concern about the Tribunal’s power to direct him to provide (and for the Company to have access to) information about his employment and medical issues outside the maritime industry is a live issue in his mind, so much is clear from what he has said and from submissions he has made since December 2015. It may be that his understanding is ill-informed, misguided or wrong, or that he is correct, but the central issue of importance he raised on 17 February 2016 has not yet been squarely addressed or dealt with by the Tribunal.
To my mind, the consequence of Mr O’Sullivan’s adherence to his understanding of the law, and his refusal to step outside that frame, is not a failure on his part under the obligation imposed by s 33(1AB) of the AAT Act to use his best endeavours to assist the Tribunal. Doing the best with his submissions over time, I think the better view is that he is attempting to formulate his case in a way that enables legal issues and disputation about relevant evidence to be dealt with, albeit without sophisticated reasoning or a detailed understanding of the legal issues involved. One does not assist the Tribunal by failing to raise legal issues of relevance.
That said, it is clear enough that Mr O’Sullivan has struggled with the Tribunal procedure from time to time and he has displayed some frustration, belligerence, rudeness and antagonism dealing with the Company and the Tribunal. Conduct of that kind is singularly unhelpful, but it is not determinative of the matters I must presently decide.
Whatever might be said about the way in which Mr O’Sullivan has conducted his case thus far, his refusal to fully comply with the Tribunal’s direction on legal grounds, albeit without legal advice, must be addressed. Behind this refusal, is Mr O’Sullivan’s stated belief that the Tribunal does not have power to direct him to provide information from outside the maritime industry and the Company is not entitled to such information under the SRC Act.
As I have said, it is unfortunate that the Tribunal has not yet dealt with this issue, despite being expressly asked to do so, as it is a key factor in Mr O’Sullivan’s failure to comply with the Tribunal’s 9 May 2018 direction, as varied and extended. To my mind, the “reasonable time” contemplated by s 42A(5)(b) of the AAT Act is capable of extending to allow the Tribunal to deal with this issue, if pressed, even though the originating request was made on 17 February 2016.
Weighing all of these matters, on balance, at this stage of the proceedings and having had careful regard to the particular circumstances, for the purposes of s 42A(5) of the AAT Act, I am satisfied that a “reasonable time” for compliance does not extend to an indeterminate time in the future at which point, if ever reached, Mr O’Sullivan might obtain legal advice. Nevertheless, on the very scant evidence before me, I am prepared to accept that Mr O’Sullivan’s health and financial circumstances are such that it is reasonable to allow time for him to obtain an answer to his application for assistance from the Attorney-General.
Furthermore, the Tribunal has not yet addressed the request Mr O’Sullivan made on
17 February 2016 for referral of a question of law to the Federal Court. This matter remains to be dealt with and for that to occur, should Mr O’Sullivan press his request, the parties will be given time to make submissions in writing before a determination is made.
It will be clear by now that I am satisfied that Mr O’Sullivan’s failure to comply fully with the Tribunal’s direction 1(a) of 9 May 2018, as varied and extended, is not yet outside the “reasonable time” by which the discretion conferred by s 42A(5) of the AAT Act is preconditioned.
For this reason, the Company’s application for dismissal under this section is refused.
It is appropriate to observe at this point that even if I had reached a different conclusion in respect of Mr O’Sullivan’s failure to comply with a Tribunal direction “within a reasonable time”, such that his failure is not within a reasonable time, and noting that these are matters about which reasonable minds may differ, I am not persuaded that exercise of the discretion is the preferable course in the particular circumstances. I will briefly explain why I have reached that conclusion.
Exercise of discretion
When deciding whether or not it is appropriate to exercise the discretion conferred by
s 42A(5) of the AAT Act, all the relevant circumstances should be considered. This includes but is not limited to the circumstances of the applicant and the incidents of the proceedings. Remedial options other than dismissal should also be considered. So too, should the interests of and consequential effect upon other parties or affected persons.
Mr O’Sullivan’s relevant circumstances include the effect of his back condition and prescribed medications on his mental processing ability and his capacity to properly represent himself. His resulting need and inability to pay for legal representation or advice, and his current application for assistance from the Attorney-General must be considered. Mr O’Sullivan has partially complied with the Tribunal’s 9 May 2018 directions, including direction 1(a), as varied and extended. These matters weigh against exercise of the discretion.
Should his application be dismissed, he will lose the opportunity for merits review of the Company’s decision to refuse his claim for compensation. Any resulting unfairness to Mr O’Sullivan weighs against exercise of the discretion.
As no issue has been raised or taken in respect of the relative merit, or lack of it, in Mr O’Sullivan’s case, I will say only that it would not be appropriate to consider issues of relative merit in any depth for present purposes. His case is not so lacking in merit that it can presently be said to have no reasonable prospect of success, although I note that issues relating to the election Mr O’Sullivan allegedly made and any consequential effect on payment of compensation under the SRC Act are yet to be determined.
The Company asserts prejudice occasioned by delay in the proceedings and Mr O’Sullivan’s refusal to provide certain information. As I have said, there are some difficulties with this submission – to assert prejudice in relation to certain information that has not been provided over a period of at least three years when no action has been taken during that period in respect of relevant information that has been provided suggests inconsistency, at least. Nevertheless, any prejudice to the Company weighs in favour of exercising the discretion.
Furthermore, the Company has incurred costs over the course of the protracted proceedings thus far – the Company is legally represented by solicitors and counsel. There is nothing unusual about this. I am not persuaded that any unfairness to the Company will result should its application for dismissal fail. Nor am I persuaded that there has been any unfairness, directly or indirectly, to the Company in the conduct of the proceedings thus far. That said, one can readily comprehend the Company’s frustration with the manner in which Mr O’Sullivan has conducted his case. This notwithstanding, frustration is not a compelling argument for exercise of the discretion.
The Company submits that Mr O’Sullivan has not complied with the obligation to use his best efforts to assist the Tribunal under s 33(1AB) of the AAT Act. I have dealt with this matter above. These considerations do not weigh for or against exercise of the discretion.
Certainly, at first blush, Mr O’Sullivan’s refusal to provide further information of relevance and his failure to comply with a direction of the Tribunal does not appear to be consistent with his obligation to assist under s 33(1AB) of the AAT Act. But on closer examination of what he has said, and proceeding on the basis that what he has said is true, it appears that he intends to give the Tribunal all his “evidence” at the earliest opportunity once it has been gathered or compiled and he has obtained legal advice to ensure that all relevant materials are provided to assist the Tribunal. Even if I accept that this is true, it is somewhat misguided - it is for the Tribunal to determine the procedure to be followed in respect of his application, not Mr O’Sullivan.
The power to make directions under s 33 of the AAT Act is for the purpose of ensuring that proceedings are conducted in an orderly and appropriate manner. Exercise of this power permits a great deal of flexibility in the particular circumstances of any case. Nonetheless, where procedural order and appropriateness are traduced by a non-compliant applicant, this would weigh in favour of exercising the discretion conferred by
s 42A(5) of the AAT Act. To my mind, the extent and nature of Mr O’Sullivan’s non-compliance is not of that order – Mr O’Sullivan has partially complied with directions to the extent of his understanding of the applicable law. Any remedy of non-compliance should be proportionate.
Generally, dismissing an application is a remedy of last recourse.[48]
[48] Guse v Comcare [1997] 49 ALD 288.
The Company asserts, correctly, that the Tribunal’s direction cannot simply be ignored or thwarted, and compliance is not discretionary or a matter of choice – the information required is essential to allow the Company to properly investigate Mr O’Sullivan’s claim and to obtain relevant materials to place before the Tribunal, thereby assisting it to make the correct or preferable decision.
Under s 33(1)(a) of the AAT Act, the Tribunal has discretion to determine procedure – it is not open to a party to a proceeding to impose or determine procedure in the particular case. Nevertheless, the Tribunal is obliged –
(a)under s 33(1)(b) of the AAT Act, to ensure that:
the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit;
and
(b)under section 39(1) of the AAT Act, to ensure that each party “is given a reasonable opportunity to present his or her case”.
I am satisfied that this is not a case in which the applicant simply refuses to provide relevant information that may be detrimental to his or her case. Mr O’Sullivan has raised legal questions concerning the extent of the Tribunal’s power in the context of the SRC Act. Despite displaying an overtly adversarial attitude, I am not persuaded that Mr O’Sullivan has done so to thwart proper Tribunal procedure or in opposition to his obligation to use his best endeavours to assist the Tribunal. I am prepared to accept that he has done so because he considers the Tribunal’s direction, in part, to be in excess of power. He asked for that matter to be dealt with in February 2016, but this has not yet occurred. This weighs against exercise of the discretion to dismiss his application.
One might perhaps understand the Company’s frustration in respect of Mr O’Sullivan’s refusal to provide further information under the directions with which he is required to comply if this impediment to progress of the application was insurmountable. But, to my mind, it is not.
Mr O’Sullivan has given the names of treating doctors and employers, albeit that other treating doctors or employers may yet be identified. The information he has provided could be utilised for the purposes the Company has identified, namely the summonsing of relevant records. But this has not been done despite the passage of more than three years. The Company argues that the existence of summons powers vested in the Tribunal and the failure to utilise those powers to obtain further information is not relevant to the matter presently to be decided.
As will appear, I do not agree. One must consider the procedural options when determining the appropriate remedy to non-compliance. This is not to suggest that the Tribunal is bound to act upon any such option when deciding upon the exercise of discretion conferred by s 42A(5) in any particular case,[49] rather that the consideration of options is desirable to ensure a proportionate and appropriate remedy in the administration of justice and fairness to both parties.
[49]Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367 at [41].
One such option is to list Mr O’Sullivan’s application for hearing and determination without further delay. The Company argues that this would result in unfairness to both parties if time is not allowed for each to properly investigate and present their case. There is some merit in this despite the long duration of the proceedings thus far. Furthermore, the Company asserts that it will be at a serious disadvantage should Mr O’Sullivan give the Tribunal his “evidence” before the hearing and the hearing proceed without the Company being given an adequate opportunity to investigate, meet and test such materials in presenting its case. Once again, there is merit in this submission despite the Company’s failure to act upon and investigate the information provided by Mr O’Sullivan thus far.
Why this has not been done has not been explained, although it can perhaps be understood in the context of adversarial proceedings in a court. The Tribunal is not a court, and it is not bound by the rules of evidence. Proceedings in the Tribunal are not truly adversarial in nature. Commonly, proceedings involve elements of adversarial contest, but each party is obliged to assist the Tribunal. Ensuring each party has an adequate opportunity to present their case and, in so doing, to investigate, meet and test disputed assertions is an important element of procedural fairness and natural justice in such proceedings.
As can be seen from the procedural history, since November 2015 the focus of proceedings has been diverted by disputation about legal and procedural issues, including issues of non-compliance and applications for dismissal. Several interlocutory rulings and decisions have been made, but the central plank of Mr O’Sullivan’s challenge to the directions made, which underlies his non-compliance and was the subject of his request for referral of a question of law to the Federal Court on 17 February 2016, has not yet been squarely addressed.
Considering these matters, another option to remedy Mr O’Sullivan’s non-compliance is to set a timetable to squarely address the issue he raised on 17 February 2016 and thereafter, allow each party time to conduct investigations and place relevant materials before the Tribunal prior to hearing and determining Mr O’Sullivan’s application. This will address the issue of Mr O’Sullivan’s non-compliance and it will provide procedural fairness to each party. To my mind it is proportionate to Mr O’Sullivan’s non-compliance.

Furthermore, incidentally, this option would allow time for determination of Mr O’Sullivan’s application for assistance from the Attorney-General or for him to obtain legal advice or representation by some other means.
Other options are to grant Mr O’Sullivan’s request for a stay of proceedings pending him obtaining legal representation or to exercise the discretion conferred by s 42A(5) of the AAT Act to dismiss his application. I am not satisfied, on balance, that either of these options is appropriate in the particular circumstances.
I refused to grant Mr O’Sullivan’s request for an indefinite stay of proceedings in August 2018, and I am not persuaded by his further submissions to revisit this decision. Staying proceedings indefinitely does not serve justice and is likely to result in unfairness to the Company. Furthermore, this does not address Mr O’Sullivan’s non-compliance in a proportionate manner, and that is not appropriate in the circumstances.
While it is open for Mr O’Sullivan to challenge or test the extent of the Tribunal’s power to make a particular direction under s 33 of the AAT Act, any resulting non-compliance with the direction must be dealt with appropriately. To my mind, it would not be appropriate to dismiss his application in circumstances where a direction has been challenged and not fully complied with, but the challenge has not yet been properly determined. To dismiss Mr O’Sullivan’s application in these circumstances would not be proportionate or fair.
Thus, in conclusion, I am not persuaded that exercising the discretion to dismiss Mr O’Sullivan’s application is appropriate in the particular circumstances.
The preferred option is to set a timetable for hearing that delivers procedural fairness to each party and enables the interlocutory issue Mr O’Sullivan raised on 17 February 2016 to be squarely addressed.
DECISION
The application for dismissal of Mr O’Sullivan’s application is refused.
Subject to further orders, the application is to be set down for hearing according to the following procedural directions:
(a)on or before 22 February 2019, Mr O’Sullivan is to inform the Tribunal and the Company if he presses the request he made on 17 February 2016; and if so
(i) on or before 8 March 2019, Mr O’Sullivan is to give the Tribunal supporting submissions in writing, or inform the Tribunal that no such submissions will be made; and
(ii)on or before 22 March 2019, the Company is to provide any written submissions in response, or inform the Tribunal that no such submissions will be made;
(b)on or before 7 May 2019, Mr O’Sullivan is to give the Tribunal and the Company all relevant materials on which he will rely at hearing;
(c)on or before 6 August 2019, the Company is to give the Tribunal and Mr O’Sullivan all relevant materials on which it will rely at hearing;
(d)on or before 20 August 2019, Mr O’Sullivan is to give the Tribunal and the Company a Statement of Facts, Issues and Contentions;
(e)on or before 3 September 2019, the Company is to give the Tribunal and Mr O’Sullivan a Statement of Facts, Issues and Contentions; and
(f)a hearing is to be listed at the earliest suitable date thereafter.

I certify that the preceding 176 (one hundred and seventy -six) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

....[sgd]....................................................................
Associate
Dated: 8 February 2019

Date of hearing: 11 December 2018

Applicant: By phone

Counsel for the Respondent: Mr Joe Lenczner

Representative for the Respondent: Mr Ben Buckhurst

Solicitors for the Respondent: Holman Fenwick Willan

Date of hearing:	11 December 2018
Applicant:	By phone
Counsel for the Respondent:	Mr Joe Lenczner
Representative for the Respondent:	Mr Ben Buckhurst
Solicitors for the Respondent:	Holman Fenwick Willan