O'Sullivan and P & O Maritime Services Pty Ltd
[2018] AATA 2899
•15 August 2018
O'Sullivan and P&O Maritime Services Pty Ltd (Compensation) [2018] AATA 2899 (15 August 2018)
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:15 August 2018
Place:Perth
1. The request for referral of a question of law to the Federal Court of Australia is refused.
2. The request for a stay of the proceedings and directions made on 9 May 2018, as varied, is refused.
3. The directions made on 9 May 2018, as varied most recently on 3 August 2018, are varied in the following terms:
(a) Direction 1 - replace “16 August 2018” with “23 August 2018”; and
(b) Direction 2 – replace “13 September 2018” with “20 September 2018”.
......[sgd]..................................................................
Mr S. Webb, Member
CATCHWORDS
SEAFARERS’ COMPENSATION – claim for compensation in respect of an injury – previous accepted injury – scope of claim – jurisdiction of the Tribunal – request for referral of a question of law to the Federal Court and a stay of proceedings – preconditions and relevant considerations to exercise of discretion – meaning of “question of law arising in a proceeding” – facts necessary to the question posed not yet determined – referral would be premature – discretion not exercised – no reasonable grounds to stay proceedings – request refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 3, 25, 33, 41, 43, 43B, 44, 45, 69
Commonwealth of Australia Constitution Act 1900 (Cth), s 51(xxxi)
Judiciary Act 1903 (Cth), s 78B
Seafarers Rehabilitation and Compensation Act 1992 (Cth), ss 3, 6, 26, 28, 31, 43, 51, 54, 55, 61, 76, 78, 79, 88
CASES
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21
Davina and Defence Force Retirement and Death Benefits Authority [1996] AATA 474
Fuad and Telstra Corporation Ltd [2004] AATA 1182
Haritos v Commissioner of Taxation [2015] FCAFC 92
Lower and Comcare [2003] AATA 54
O’Sullivan and P & O Maritime Services Pty Ltd [2016] AATA 283
O’Sullivan and P & O Maritime Services Pty Ltd [2016] AATA 865
O’Sullivan v P & O Maritime Services Pty Ltd [1998] DCWA CIV2466 of 1997
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 [2017] FCA 508
O’Sullivan v Barker J & Ors [2017] HCA P38 of 2017
O’Sullivan v Barker J & Ors [2018] HCA P62 of 2017
Smith v ANL Ltd [2000] HCA 58SECONDARY MATERIALS
Maritime Industry Offshore Oil and Gas Operations Award 1991
Maritime Industry Seagoing Award 1983, Register A
REASONS FOR DECISION
Mr S. Webb, Member
15 August 2018
Michael O’Sullivan injured his back in the course of his employment by P & O Maritime Services Pty Ltd (the Company) in 1993. He claimed and was paid benefits under the applicable Award. His employment with the Company and benefit payments ceased in 1995. In 2014, Mr O’Sullivan lodged a claim for compensation in respect of a back injury, citing the Company as his employer. The Company rejected the proposition that it was Mr O’Sullivan’s employer and refused the claim. Mr O’Sullivan requested reconsideration of this decision. As no decision was made within the time allowed, the refusal decision is deemed to have been affirmed. Mr O’Sullivan applied to the Tribunal for review.
The resulting proceedings commenced in 2015. They have been protracted and somewhat difficult.
On 4 July 2018, among other things, Mr O’Sullivan requested referral of a question of law to the Federal Court of Australia under s 45 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The question he posed is in the following terms:
Whether or not Section 61 of the Seafarers Rehabilitation and Compensation Act precludes the Applicants [sic] claim for Compensation at all.
Subsequently, he sought a “stay” on directions made in the proceedings that require him to provide certain information in respect of previous employers and medical practitioners who treated his back complaints since December 1993.
Both parties have made oral and written submissions on these and related matters.
It is these matters, alone, concerning Mr O’Sullivan’s request for referral of a question of law to the Federal Court and a related stay of the proceedings that I am dealing with presently.
BRIEF FACTS
The brief facts of the case are set out in a 2016 interlocutory decision of the Tribunal: Re O’Sullivan and P & O Maritime Services Pty Ltd.[1] It is not necessary to recite these facts here. Nonetheless, for ease of reference, I will set out some of the background facts that are relevant to the issues I must decide.
[1] [2016] AATA 865 at [6]-[20].
On 16 December 1993, Mr O’Sullivan injured his back in a fall. At the time, he was working as a Greaser on the vessel the Lady Dawn in the Company’s employ.
He claimed compensation - claim number 3839. Mr O’Sullivan 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)
There is a dispute about the status and legal effect of this document.
From 17 December 1993 to 16 November 1995, the Company paid fortnightly amounts for lost wages under the applicable Award. In documents and judgements provided to the Tribunal, reference is made to the Maritime Industry Offshore Oil and Gas Operations 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.
On 17 June 1994, Mr O’Sullivan was removed from Register A under clause 3(r)(v) of Schedule X to the Award.
His employment with the Company ended on 19 December 1994.
On 16 November 1995, the Company ceased paying periodic amounts for lost wages.
Mr O’Sullivan pursued a common law claim against the Company. This went to the District Court of Western Australia. The Tribunal has been provided with a judgement handed down by O’Sullivan DCJ on 17 September 1998,[2] in which two questions were posed before the Court –
(a) 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
(b) whether s55 of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) has any application to the plaintiff given his election pursuant to s61(1) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth).
[2] CIV 2466 of 1997; Lib No D980258.
O’Sullivan DCJ answered question (a) in the affirmative.
On 29 October 2014, Mr O’Sullivan signed a claim for compensation under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (the SRC Act) in respect of an injury.[3] The claim was lodged with the Company on 12 November 2014 – Mr O’Sullivan nominated the Company as his employer “at the time of the injury”.[4]
[3] T8.
[4] T8 folio 39.
The terms of the claim are set out in response to formulaic questions. As can be seen, the claim specifies the particular circumstances when the injury is said to have occurred, namely at approximately “945am-1005am” on 26 August 2014 “[o]utside maritime union and maritime mining power credit union building” as Mr O’Sullivan was “[l]eaving the building after paying union fees and registering for employment and accidently [sic] missed the step and jarred my back”.[5]
[5] Ibid, folios 40 to 42.
The nature of the claimed injury is stated to be “Lumbrosacral radiculopathy – slipped disc” affecting Mr O’Sullivan’s “Lower back – left leg”.[6]
[6] Ibid, folio 41.
The scope of the claim is specified to include:
(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.[7]
[7] Ibid, folio 39.
Mr O’Sullivan included information about his previous injury in 1993.[8]
[8] Ibid, folio 42.
The declaration Mr O’Sullivan signed includes the following election: “I elect to claim benefits under the Seafarers Act and not under an industrial award or agreement”.[9]
[9] Ibid, folio 43.
On 8 December 2014, the Company issued a determination rejecting Mr O’Sullivan’s claim.[10]
[10] T12.
Mr O’Sullivan requested reconsideration of the decision, stating that he “…is unable to resume duties in the Maritime Industry due to injury”.[11]
[11] T13.
Under s 79(1)(a) of the SRC Act, subject to extending provisions, a period of 60 days is allowed for the making of a reconsideration decision by the employer. The period may be increased under ss 79(2) or (3) of the SRC Act. The present materials do not establish that either of these provisions applies. As the Company did not make a reconsideration decision within the time allowed, under s 79(6) of the SRC Act it is taken to have made a decision to disallow the claim.
It is this deemed decision that is the subject of Mr O’Sullivan’s application for review on 12 February 2015.
The early progress of the proceedings was attended by some difficulties and disputation. I note the history recorded by the Tribunal in a decision dismissing Mr O’Sullivan’s application on 3 May 2016 – O’Sullivan and P & O Maritime Services Pty Ltd[12] paragraphs [9] to [32].
[12] [2016] AATA 283.
Mr O’Sullivan appealed the decision to the Federal Court.
On 9 August 2016, Siopsis J set aside the dismissal decision and remitted the matter to be determined according to law by the Tribunal.[13]
[13] O’Sullivan and P & O Maritime Services Pty Ltd [2016] FCA 969.
Proceedings resumed in the Tribunal. The matter came before me and, with the agreement of the parties I gave a ruling on a preliminary point in respect of Mr O’Sullivan’s employer.[14]
[14] O’Sullivan and P & O Maritime Services Pty Ltd [2016] AATA 865.
Mr O’Sullivan appealed this decision to the Federal Court of Australia.
On 2 February 2017, McKerracher J dismissed the appeal.[15]
[15] O’Sullivan and P & O Maritime Services Pty Ltd [2017] FCA 47.
After some time, Mr O’Sullivan sought an extension of time in which to appeal against this judgement. On 9 May 2017, Barker J dismissed the application.[16]
[16] O’Sullivan v P & O Maritime Services Pty Ltd [2017] FCA 508.
Proceedings in the Tribunal resumed.
On 17 August 2017, Mr O’Sullivan sought relief from the judgements of McKerracher J and Barker J in the High Court of Australia.[17]
[17] O’Sullivan v Barker J & Ors [2017] HCA P38 of 2017, page 1 of the judgement.
On 8 November 2017, Gordon J refused the application for an order to show cause in respect of the judgement of McKerracher J and dismissed the application in respect of Barker J.[18]
[18] O’Sullivan v Barker J & Ors [2017] HCA P38 of 2017, Order of 8 November 2017.
On 6 December 2017, Mr O’Sullivan made application for leave to appeal from the judgement of Gordon J.[19]
[19] O’Sullivan v Barker J & Ors [2018] HCA P62 of 2017.
On 21 December 2017, Mr O’Sullivan gave notice of a matter under the Commonwealth of Australia Constitution Act 1900 (the Constitution) in the High Court, 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.
On 21 March 2018, Bell and Gaegler JJ refused the application.[20]
[20] O’Sullivan v Barker J & Ors [2018] HCA P62 of 2017, 21 March 2018.
The proceedings in the Tribunal then resumed.
On 9 May 2018, I heard the parties in a telephone directions hearing and issued procedural directions that required, in part, Mr O’Sullivan to give specified information in respect of his previous employers and medical practitioners who had treated his back condition since December 1993.
On 15 June 2018, Mr O’Sullivan made written submissions in respect of the directions of 9 May 2018. Doing the best with this material, I think Mr O’Sullivan’s submissions may be distilled into three points:
(a)in respect of an alleged question of law (which is not identified), an order staying the proceedings under s 41(2) of the AAT Act;
(b)an application to the Attorney-General for legal assistance under s 69(1)(a) and (c) of the AAT Act; and
(c)a “…matter arising under 51(xxxi) of the Constitution or involving its interpretation within the meaning of section 78B of the Judiciary Act 1903”, “[w]hether the law was applied on just terms in matter CIV 2466 of 1997 is a matter involving interpretation within the meaning of section 78B of the Judiciary Act 1903”.
On 29 June 2018, the Company provided written submissions in response.
On 2 July 2018, I heard the parties in a telephone directions hearing and issued further directions, in part extending time for Mr O’Sullivan to comply with the directions of 9 May 2018.
On 4 July 2018, Mr O’Sullivan requested the referral of a question of law to the Federal Court under s 45 of the AAT Act.
On 10 July 2018, I issued directions requiring Mr O’Sullivan to specify the alleged question of law and allowing time for each party to make submissions on this point, leaving the 9 May 2018 directions, as varied, in place.
On 10 July 2018, the Company gave written submissions addressing these matters.
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] [sic] 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] [sic]
On 23 July 2018, the Company gave further written submissions addressing these matters.
On 27 July 2017, Mr O’Sullivan wrote to the Tribunal in reference to related matters and requested, in part, an extension of time to comply with certain directions made on 9 May 2018, as varied, and in other part, a stay on the balance of those directions.
On 2 August 2018, the Company provided written submissions in response, agreeing to the extension of time, subject to conditions, and opposing the grant of a stay.
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 effect holding over the 9 May 2018 directions, as varied, for a 14 day period and setting a timetable for compliance.
ISSUES
There are two issues to be decided:
(a)the referral of a question of law to the Federal Court under s 45 of the AAT Act; and
(b)Mr O’Sullivan’s request for a stay.
Referral of a question of law to the Federal Court
Mr O’Sullivan has made a number of submissions in support of his request for referral of the question of law posed to the Federal Court. Doing the best to properly understand his arguments, it appears to me that he is seeking to test “…the implications of the election provisions of Section 61 SRCA, or what effect it would have on the other relevant provisions, if a claimant was to make an election, such as in the case of this matter”. He says “[i]f the claim is blocked by the Legislation governing the provisions of the Seafarers Rehabilitation Compensation Act 1992, all the Parties have a right to know”. Mr O’Sullivan considers that his case is “quite unique” and “[o]nce the Status of this Claim is known, the Parties have options open to them…”.
In Mr O’Sullivan’s submission, the Tribunal must determine “whether the injury is continuing or fresh”, but, so the argument goes, –
… the Tribunal cannot make a finding that he had and/or has continuing entitlement to compensation pursuant to the SRCA in respect of the injury of 16 December 1993, unless it finds the applicant had continuing entitlement to compensation pursuant to the SRCA in respect of the injury of 16 December 1993, but lost that right by an alleged written election, to claim benefits under an award, other than that, an election is irrevocable under section 61{2} of the Act as cited in matter CIV 2466 of 1997. The effect of the alleged election precludes the Applicant from proceeding with a common law action, or claiming Compensation against the named Respondent under the Act for a continuing injury after 100 weeks of award benefits ceased on the 16/11/1995.[21]
[21] Applicant’s Submissions in Reply to Direction 10 July 2018, dated 17 July 2018.
Mr O’Sullivan asserts that the “alleged election has never been tested in a Court of Law” and “it is based on assumed facts” agreed by the parties in preliminary proceedings before the District Court of Western Australia in matter CIV 2466 of 1997. Furthermore, Mr O’Sullivan argues that the alleged election is “outdated”, “undated” and “[n]obody knows if the election is still currently enforceable, or has any bearing in Matter No 2015/0698 being heard before the Tribunal, until it is decided by a Court of Law”.
It is in this context that Mr O’Sullivan raised an issue under s 51(xxxi) of the Constitution in respect of the application of law on just terms. While he maintains, correctly, that the Tribunal has no jurisdiction in respect of matters decided by the District Court of Western Australia in CIV 2466 of 1997, it is likely, but far from clear, that, by raising this issue in the context of these proceedings, including the giving of notice to Attorneys-General under s 78B of the Judiciary Act 1903 (Cth), Mr O’Sullivan views this as something the Tribunal should consider when deciding his request for referral of the question he has posed to the Federal Court.
The Company asserts that issues of the kind raised by Mr O’Sullivan do not arise at this time, by which I understand it to mean at this stage of proceedings in the Tribunal. In the Company’s submission, s 61 of the SRC Act “would only arise in the event that the Tribunal decided that the Applicant had and/or has continuing entitlement to compensation pursuant to the SRCA in respect of the injury of 16 December 1993” and:
In the event that the Tribunal was to find that the Applicant’s claimed condition was compensable, it would then need to determine whether:
a)It has jurisdiction to decide the application of section 61 of the SRCA; and, if so;
b)The effect of section 61 of the SRCA upon the applicant’s claim for compensation.
It would then be for the Tribunal to determine whether or not it should refer either or both of the question(s) as questions of law (subject to the President’s agreement) to the Federal Court.[22]
[22] Respondent’s letter, dated 23 July 2018, page 1.
In the Company’s submission, “assuming jurisdiction of the Tribunal to decide the application of section 61, the formulation of any question of law as to the application of section 61, could be influenced by the findings of fact in respect of the Applicant’s application for compensation”. The Company says this stands against referring any question of law to the Federal Court at this time.
Furthermore, no question of law arises, so the argument goes, when determining “…whether or not the injury [Mr O’Sullivan] sustained on 16 December 1993 in the course of employment by the Respondent was a continuing injury, including following his alleged fall on 26 August 2014, or whether that injury was a “fresh” injury”.
In the Company’s submission, therefore, no question of law arises for referral and Mr O’Sullivan’s request should be refused.
The matter is to be decided under s 45 of the AAT Act:
45 Reference of questions of law to Federal Court of Australia
(1)The Tribunal may, with the agreement of the President, refer a question of law arising in a proceeding before the Tribunal to the Federal Court of Australia for decision. The Tribunal may do so on its own initiative or at the request of a party to the proceeding.
Note: This Part does not apply to certain migration proceedings (see section 43C).
(2)The Federal Court of Australia has jurisdiction to hear and determine a question of law referred to it under this section.
(2A) If, after consulting the President, the Chief Justice of the Court considers it appropriate, that jurisdiction is to be exercised by the Court constituted as a Full Court.
(3)Where a question of law arising in any proceeding has been referred to the Federal Court of Australia under this section, the Tribunal shall not, in that proceeding:
(a)give a decision to which the question is relevant while the reference is pending; or
(b)proceed in a manner, or make a decision, that is inconsistent with the opinion of the Federal Court of Australia on the question.
There are immediately three things to note about this section. Firstly, as can be seen, the power to refer is discretionary – it is conditioned by the word “may” which has been construed as permissive rather than obligatory.[23] The Tribunal is not bound to refer a question of law to the Federal Court simply because a party to proceedings before it requests it to do so.
[23] See, for example, Davina and Defence Force Retirement and Death Benefits Authority [1996] AATA 474 at [11]-[13].
Secondly, the power to refer is subject to the agreement of the President of the Tribunal. Thus, even if the Tribunal as constituted to hear a matter might consider it appropriate to refer a question of law to the Federal Court, no referral can be made unless the President agrees.
Thirdly, the power to refer is confined to a “question of law arising in a proceeding before the Tribunal”. Thus, the referral power is essentially preconditioned by the existence of a “question of law”, “arising in”, a “proceeding”.
I note matters the Tribunal in Lower and Comcare[24] considered to be relevant to the exercise of the discretion conferred by s 45(1) of the AAT Act, with which I respectfully agree. The preconditions and relevant considerations for exercise of the discretion include whether:
[24] [2003] AATA 540 at [28]-[31].
(a)the question posed is a question of law arising in proceedings before the Tribunal;
(b)the factual basis of the question is clearly established;
(c)the nature of the legal question arising is such that it is appropriate and proper for the applicant to first approach a Court of competent jurisdiction for determination of the question; and
(i)where this has been done, the response or judgement of the Court; or
(ii)where this has not been done, whether it is preferable for the applicant to do so rather than for the question to be referred by the Tribunal;
(d)the question is of general importance and involves a substantial argument or complexity fit for consideration by the Federal Court;
(e)the answer to the question will determine or ought to determine the issue between the parties;
(f)the course of referring the question of law is preferable on the grounds of expense or otherwise in deciding the question of law and disposing of the case in the ordinary way; and
(g)the President agrees.
The word “proceeding” is defined in s 3(1) –
proceeding, in relation to the Tribunal, includes:
(a)an application to the Tribunal for review of a decision; and
(b)an application to the Tribunal under subsection 28(1AC); and
(c)an application to the Tribunal for review of a taxing of costs; and
(d)an application to the Tribunal for a costs certificate under section 10A of the Federal Proceedings (Costs) Act 1981; and
(e)an application to the Tribunal under subsection 62(2) of the Freedom of Information Act 1982; and
(f)any other application to the Tribunal under this Act or any other Act; and
(g)any matter referred to the Tribunal for inquiry and/or review under this Act or any other Act; and
(h)an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application, or a matter, referred to in a preceding paragraph.
At this point, it is important to note that s 43B(1) of the AAT Act relevantly provides that Part IVA of the AAT Act applies to a proceeding that is before the Tribunal under power conferred by an enactment. The discretionary referral power conferred by s 45 is to be construed within this frame – the power conferred is not at large but is confined, as I have said, to a question of law arising in a proceeding before the Tribunal.
A proceeding before the Tribunal may be taken to commence with an application (or a referral under paragraph (g) of the definition of “proceeding”) under an enactment conferring power upon the Tribunal. In this context, questions of the Tribunal’s jurisdiction arise and, in particular, whether, as suggested by the Tribunal in Lower and Comcare,[25] the power conferred by s 45 of the AAT Act is broad enough to permit referral of “…questions that precede the existence of the Tribunal’s jurisdiction and that would require the Tribunal to make an authoritative determination of law or fact”.[26] In Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd,[27] Deane J (as he then was), in the minority, said at [11]:
An administrative tribunal will ordinarily have no authority to transcend the limits of the jurisdiction conferred upon it by hearing an application aimed not at invoking the jurisdiction which it possesses, but at securing an authoritative determination of questions of fact or law anterior to the existence of that jurisdiction.
For present purposes, I do not need to go any further with or attempt to resolve this issue – Mr O’Sullivan’s application is in respect of a decision in fact, albeit one that is taken to have been made by operation of s 79(6) of the SRC Act for the purposes of s 78 of the SRC Act, denying compensation, impliedly, under ss 26, 28, 31, 43 and 51 of that Act.
[25] [2003] AATA 540.
[26] Ibid at [30].
[27] [1979] FCA 21.
The question of the Tribunal’s jurisdiction raised by the Company relates to s 61 of the SRC Act. It is a question in two parts, relating to extent and timing. Having regard to s 25 of the AAT Act, the Tribunal’s jurisdiction is conferred by s 88(1) of the SRC Act in respect of application for review of a “reviewable decision” as defined by s 76 of the SRC Act, being “a decision made under section 78”. There is no contest that a decision that is taken to have been made by operation of s 79(6) of the SRC Act, all preconditions having been satisfied, is a “reviewable decision” under s 78 of that Act.
On the extent of jurisdiction, as Downes J (then President of the Tribunal) said in Fuad and Telstra Corporation Ltd[28] at [5]:
It follows that all matters put before the decision-maker as part of a claim under the Act are before this Tribunal for review when an application for review is made, even though the decision may not address them in any particular way. That leaves a problem of identifying exactly what was before the decision-maker but that is a practical problem and not a jurisdictional problem.
[28] [2004] AATA 1182.
Under s 43(1) of the AAT Act, for the purposes of review, the Tribunal may exercise all the powers and discretions that are conferred on the person who made the decision subject of the application for review. Where, as here, the decision is taken to have been made by operation of legislation imposing time limits on a decision-maker (in this case an “employer”) and deeming a decision to have been made where the time limit is not met, all of the powers and discretions conferred on the erstwhile decision-maker may be exercised by the Tribunal on review. Furthermore, when the tiered decision making structure provided for by the SRC Act is considered, subject to any express contrary intention, it can be accepted that matters before the person who made the primary determination of a claim arise again on reconsideration and are before the Tribunal on review. Thus, where a primary decision-maker has power to determine a claim under any particular provision of the applicable legislation and, whether or not the person did so, the same power is expressly or impliedly conferred upon the reconsideration decision-maker, those powers may be capable of exercise by the Tribunal for the purposes of review.
Thus, in this case, it is necessary to consider all matters placed before the original decision-maker as part of the claim, whether or not they were dealt with or addressed in any way.
As can be seen in the claim form Mr O’Sullivan lodged with the Company, the claim was in respect of an injury and five heads of compensation, with clear reference made to a previous injury of a similar kind for which the Company was liable. The compensation claimed as a result of the alleged injury is in respect of:
(a)lost wages from incapacity to 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.
From this it follows that all matters necessary to determine:
(a)the existence of an “injury” for the purposes of the SRC Act, as defined by s 3 of the SRC Act and having regard to the defined meaning of “disease” and the terms of s 6 of the SRC Act; and
(b)having regard to s 26 of the SRC Act and other applicable sections, Mr O’Sullivan’s entitlement to payment of compensation under the nominated heads;
were before the decision-maker.
Had the decision-maker decided the claimed injury on 26 August 2014 was a new “injury” for the purposes of the SRC Act, it would then have been necessary to determine if Mr O’Sullivan was entitled to compensation he claimed under the relevant sections of the SRC Act in respect of that “injury”. Alternatively, had the decision-maker decided that the claimed injury on 26 August 2014 was a continuation of the previous “injury” for which liability had been accepted from 17 December 1993, it would then have been necessary for the decision-maker to determine Mr O’Sullivan’s entitlement to payment of compensation under claim in respect of that previous “injury”. In that context, having regard to the particular circumstances of his case, it would then be necessary to determine if s 61(1) of the SRC Act raised a bar to payment of compensation for the “injury” as follows:
(1) A person who would, apart from this section, be entitled to compensation under this Act and benefits under an award in respect of the same injury, or in respect of the same loss of, or damage to, property, is not entitled to both but must elect whether to receive the compensation or the benefits.
Thus, it can be understood that the question posed by s 61 of the SRC Act, whether Mr O’Sullivan had made an election to receive compensation under the SRC Act or benefits under an award in respect of the “injury” for which the Company was liable, was before the decision-maker, albeit contingent on certain findings, and the bar on dual entitlement imposed by s 61(1) of the SRC Act, would have arisen for determination had those findings been made.
For these reasons, in my preliminary view, it is probable that the Tribunal’s jurisdiction extends to include determination of Mr O’Sullivan’s entitlement to payment of compensation under the various heads he has claimed and, in this context, subject to relevant facts being established, whether the bar raised by s 61 of the SRC Act applies. I will go no further on this point without hearing further submissions from the parties if it is necessary to do so as the proceedings progress. For present purposes, in order to determine Mr O’Sullivan’s request, it is not necessary to do so.
On the issue of timing the Company raised, to my mind, this is an issue of practicality and not one of the Tribunal’s jurisdiction. It is nevertheless an important consideration that bears upon the question I must decide under s 45 of the AAT Act.
As will be clear by now, s 61 of the SRC Act is essentially preconditioned by certain factual findings. Whether factual findings sufficient to enliven the section exist in Mr O’Sullivan’s case has yet to be determined. Before a question of law relating to s 61 of the SRC Act can properly be said to arise in the proceedings, necessary factual findings must be made. These are technical issues that need to be addressed by the Tribunal.
For referral to the Federal Court, a question of law, properly framed, should do more than “…invite the court to embark on a broad and hypothetical inquiry as to the construction and operation of statutory provisions”.[29] Relevant facts necessary to raise any issue for determination under s 61 of the SRC Act have not yet been established. At this time, the question posed is hypothetical in nature, and it is not appropriate to ask the Federal Court to engage in an inquiry of that kind.
[29] Haritos v Commissioner of Taxation [2015] FCAFC 92 at [93].
Additionally, as I have said, for the discretion conferred by s 45(1) of the AAT Act to be enlivened, the question of law alleged by Mr O’Sullivan must be one arising in the proceedings. It is on this point that the Company’s issue of timing may be said to bear. The word “arising” may be given its ordinary meaning in common usage. In the statutory context, a question arising in proceedings may be taken to be a question the Tribunal must determine.
At this stage of the proceedings, all that can be said is that the s 61 issue may arise in the proceedings, subject to certain factual findings being made. Without those factual findings being made, it does not arise for determination. That being so, all other considerations aside, referral of the question Mr O’Sullivan has posed at this stage of the proceedings is premature.
Much has been said about the character of a question of law for the purposes of an appeal to the Federal Court under s 44 of the AAT Act,[30] and the importance of precision in framing such a question.[31] While the purpose of s 45 of the AAT Act is somewhat different, to my mind, precise framing of a question of law and the factual basis on which it arises is nonetheless important – precision enables clarity when assessing a request for referral on a legal question or point of law. This may also be important in obtaining a relevant answer or determination should a referral be made to the Federal Court. While the alleged question of law posed by Mr O’Sullivan is imprecise in terms, I would not reject his request for referral on those grounds – precise drafting is a matter that can be addressed by the Tribunal should it be necessary to do so.
[30] Ibid at [62], for example.
[31] Ibid at [92], for example.
Mr O’Sullivan gave notice in the High Court of an alleged issue under s 51(xxxi) of the Constitution. His application was refused. In so doing, Bell and Gaegler JJ made no reference to the issue of which he gave notice.
In all likelihood, the issue he was attempting to agitate was not sufficiently clear or made out. It is conceivable, for example, that Mr O’Sullivan, impliedly at least, is attempting to raise an issue relating to just terms of the kind the High Court dealt with in Smith v ANL Ltd.[32] That case relates to the operation of s 54 and s 55 of the SRC Act in respect of damages and property. Presently, matters of that kind do not arise in Mr O’Sullivan’s proceedings before the Tribunal, although it is possible that such issues might arise in consequence of factual or other findings. Even if the alleged issue under the Constitution is framed differently, insofar as the issue relates to the operation of s 61 of the SRC Act, facts necessary to raise the issue have not yet clearly been established, namely, whether the injury claimed in 2014 is a continuation of the 1993 injury for which the Company accepted liability. Without that being determined, the issue he has framed in paragraph 2 of the notice he gave on 21 December 2017 does not yet arise and, as he said, “…the issue remains and still remains, to be addressed and resolved by the Tribunal”.[33]
[32] [2000] HCA 58.
[33] Applicant’s Notice of Constitutional Matter, 21 December 2017 at [2].
So, too, does the question he now poses in respect of s 61 of the SRC Act.
For these reasons, Mr O’Sullivan’s request under s 45 of the AAT Act is refused.
Request for a stay
Mr O’Sullivan’s request for a stay of the proceedings and the directions made on 9 May 2018, as varied, is raised on four grounds –
(a)to allow time for him to prepare or progress his case as a self-representing applicant who is unwell;
(b)to allow time for the legal question to be determined by the Federal Court;
(c)to allow time for him to obtain legal representation or advice, including by way of an application under s 69 of the AAT Act to the Attorney-General; and
(d)to allow time for a request for information from the Fremantle Hospital to be met.
The Company asserts that it is not appropriate to stay the proceedings or the directions made on 9 May 2018, as varied.
Mr O’Sullivan’s reference to s 41(2) of the AAT Act is misguided. That section refers to the operation of a decision under review. Where the decision under review, as here, rejects a claim and, if the operation of the decision is stayed there would be no positive effect, the section has no work to do. Plainly enough, it is not applicable to the terms of Mr O’Sullivan’s request.
Mr O’Sullivan’s request for a stay relates to the proceedings and the directions made on 9 May 2018, as varied. This is a matter of procedure and it is to be decided by application of the power to make procedural directions under s 33(2) for the purposes of s 33(1) of the AAT Act:
(1) In a proceeding before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b) 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
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
As can be seen, the section confers discretion on the Tribunal to determine the preferred procedure in a proceeding. The requirement for expedition is qualified by other statutory requirements and a proper consideration of the matters before the Tribunal.
On the first ground, Mr O’Sullivan has not provided any reliable documentary material in respect of his present state of health. Well it may be that representing oneself in Tribunal proceedings is at times onerous or stressful, this does not mean a case of this kind should be allowed to be delayed indefinitely. If there are real health grounds that necessitate the provision of additional time to comply with directions, it is open for Mr O’Sullivan to make such a request and to provide supporting materials.
As things stand, I have allowed additional time for him to comply with the 9 May 2018 directions, as varied, on two occasions already. Without further and better materials, such as a medical certificate or similar from his treating doctor, I am not persuaded that his request for a stay should be granted for health reasons.
On the second ground, I have refused Mr O’Sullivan’s request for referral of a question of law to the Federal Court at this time.
On the third ground, Mr O’Sullivan has had ample opportunity to obtain legal representation or advice in respect of these proceedings, generally, and in respect of the directions of 9 May 2018, in particular. It should be noted that the contents of Direction 1 are very substantially similar to directions made on 23 December 2015. It appears that Mr O’Sullivan cavilled with those directions and resisted the Company’s efforts to obtain information about his employment and medical treatment since 1993. In respect of those matters, and the extensive amount of time in which the proceedings in the Tribunal have been on foot, I am not of a mind to delay matters further in order to allow time for him to obtain legal representation or advice. He has had ample time to do so and, if he has not done so, that is a matter for him.
With regard to s 69 of the AAT Act, the issue Mr O’Sullivan raised in respect of applying to the Attorney-General for legal assistance was discussed during a telephone directions hearing before me on 2 July 2018. Mr O’Sullivan has not provided evidence that he has made an application to the Attorney-General under s 69 of the AAT Act. In any event, having regard to the nature of Mr O’Sullivan’s application for review and the substance of the matters thus placed before the Tribunal, I am not persuaded that it is appropriate to further delay proceedings for an indeterminate period in order for him to apply to and obtain a response from the Attorney-General.
Importantly, the legal issues Mr O’Sullivan is seeking to agitate in respect of s 61 of the SRC Act and, perhaps, the Constitution, as I have said, turn on factual findings which have not yet been made. The stay he is seeking, if granted, would further delay relevant factual findings being made. I should say immediately that the particular factual findings are of a kind that commonly arises in compensation cases, relating to the existence and nature of an “injury”, including the circumstances in which the claimed injury arose, the connection with or contribution to the injury under claim by any relevant employment, and the medical characterisation of the claimed injury. Even though Mr O’Sullivan considers his case to be unique or very unusual, in substance it is not. That said, it is conceivable that a legal issue may arise in respect of s 61 of the SRC Act or the Constitution once relevant facts have been found. Should that arise, Mr O’Sullivan could then make an application to the Tribunal or a Court if he considers it appropriate to do so.
On the last ground, I have already allowed additional time for Mr O’Sullivan to comply with directions 1(a) and (c) of 9 May 2018, as varied under directions made on 3 August 2018.
For these reasons, I refuse Mr O’Sullivan’s request for a stay of the proceedings and the directions made on 9 May 2018, as varied.
In consequence of this decision, the directions made on 9 May 2018, as varied most recently on 3 August 2018, remain in force. In order to ensure fairness to both parties, I think it is appropriate to extend the time for compliance by 7 days.
DECISION
Mr O’Sullivan’s request for referral of a question of law to the Federal Court is refused.
Mr O’Sullivan’s request for a stay of the proceedings and the directions made on 9 May 2018, as varied, is refused.
The directions made on 9 May 2018, as varied most recently on 3 August 2018, are varied in the following terms:
(a)Direction 1 - replace “16 August 2018” with “23 August 2018”; and
(b)Direction 2 – replace “13 September 2018” with “20 September 2018”.
I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
......[sgd]..................................................................
Associate
Dated: 15 August 2018
Applicant: Self-represented Counsel for the Respondent: Mr J. Lenczner Representative for the Respondent: Mr B. Buckhurst Solicitors for the Respondent: Holman Fenwick Willan
4
10
0