O'Sullivan and P & O Maritime Services Pty Ltd
[2016] AATA 283
•3 May 2016
O’Sullivan and P & O Maritime Services Pty Ltd [2016] AATA 283 (3 May 2016)
Division
GENERAL DIVISION
File Number(s)
2015/0698
Re
Michael O'Sullivan
APPLICANT
And
P & O Maritime Services Pty Ltd
RESPONDENT
DECISION
Tribunal
Date of written
reasonsSenior Member CR Walsh
3 May 2016
Place Perth On 20 April 2016, the Applicant requested the Tribunal to furnish to it a statement in writing of the Tribunal’s reasons for its decision pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth).
........[Sgd]................................................................
Senior Member CR Walsh
CATCHWORDS
PRACTICE & PROCEDURE – dismissal of application for failure to comply with a direction of the Tribunal within a reasonable time – applicant appealed decision to dismiss application to Federal Court of Australia – reasons for decision requested by the applicant
LEGISLATION
Administrative Appeals Tribunal Act 1975 – s 2A – s 33(1)(c) - s 33(1AA) – s 33(1AB) - s 33(2A) – s 40A – s 40B – s 42A(5)(a) – s 42A(5)(b) – s 42B(1) – s 44
Seafarers Rehabilitation and Compensation Act 1992 – s 3 - s 61 – s 67 – s 67(2) – s 78(2)
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
REASONS FOR DECISION
Senior Member CR Walsh
3 May 2016
INTRODUCTION
On 11 March 2016, the Tribunal made the following order in relation to this application:
The Tribunal is satisfied that the Applicant has failed within a reasonable time to comply with a direction made by the Tribunal under section 33(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) in relation to the application.
Pursuant to section 42A(5) of the AAT Act, the Tribunal dismisses the application [Decision].
On 7 April 2016, the Applicant appealed the Decision to the Federal Court of Australia, Western Australia District Registry (File Number: WAD132/2016) pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (AAT Act). The Applicant’s Notice of Appeal from the Decision lists the following “Questions of law” for consideration by the Federal Court:
1.Can 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 (SRCA 1992)
2. Is the claimant take to have complied with section 67(2) SRCA 1992
3.Has a contradiction of law occurred between 2 Commonwealth Acts (AAT 1975) and (SRCA 1992) in association with AAT order to dismiss the application
By letter dated 20 April 2016, the Applicant requested that the Tribunal provide him with written reasons for the Decision. The Tribunal’s reasons for the Decision are as follows.
REASONS FOR DECISION
On 29 October 2014, the Applicant lodged a “Claim for Worker’s Compensation” under the Seafarers Rehabilitation and Compensation Act 1992 (SRCA) in respect of a “lumbosacral radiculopathy – slipped disc” injury he claims to have suffered on 26 August 2014 during his employment with the Respondent, P&O Maritime Services Pty Ltd.
In his claim form, the Applicant describes his injury as having occurred:
Outside maritime union and maritime mining power credit union building
and that the injury occurred when he was:
Leaving the building after paying union fees and registering for employment and accidently (sic.) missed the step and jarred my back.
On 8 December 2014, the Respondent rejected the Applicant’s claim for compensation on the basis that the Applicant was not an employee of the Respondent at the time of his claimed injury (Determination). More specifically, the Determination states:
You were not requested nor required to attend any place to register employment with P&O Maritime Services and you are not a currently registered seafarer on a P&O Maritime prescribed vessel.
By letter dated 10 December 2014, the Applicant requested a reconsideration of the Determination pursuant to s 78(2) of the SRCA. This letter was received by the Respondent on 12 December 2014.
On 29 January 2015, Comcare provided the Respondent with a non-binding report recommending that the Determination be upheld by the Respondent and that the Applicant’s compensation claim be denied (Comcare Report). The Comcare Report states:
The primary question that needs to be resolved is whether or no Mr O’Sullivan was an employee of P&O Maritime services at the time of the injury. There is no doubt that Mr O’Sullivan sustained an injury, simply whether or not it was sustained in the course of employment. I note that the only evidence suggesting that Mr O’Sullivan may have ever been employed by P&O is the document entitled ‘Part 6 Engagement’, including his discharge and release. This relates to the period between 5 December 1993 and 12 December 1993, and does not demonstrate that he was employed by P&O as at the date of the injury (26 August 2014).
In my opinion, based on the evidence provided, it is my view that the determination dated on 8 December 2014 which rejected the employee’s claim for compensation in so far as it applied to P&O Maritime Services was correct in denying liability based on the fact that Mr O’Sullivan was not an employee of P&O at the date of injury.
On 12 February 2015, the Applicant lodged an “Application for Review of Decision” with the Tribunal stating, under the heading “Decision”:
To date (12-2-2015) P+O Maritime Services Pty Ltd have not followed up on Comcare report dated 29-1-2015
and under the heading “Reasons for Application”:
I think the decision is not correct
The first directions hearing for this application was held on 27 February 2015 before DP Hotop (as he then was). The Registry notes for that directions hearing show that DP Hotop stated the SRCA allows 60 days for the reconsideration of a determination made under the SRCA, after which time, if the determination is not reconsidered and a fresh decision made, the determination becomes a deemed decision. DP Hotop found that the Determination in this case constitutes a deemed decision which is reviewable by the Tribunal and that the Tribunal has jurisdiction to hear this application. There was some discussion at this directions hearing concerning whether the Applicant’s application was made in time. It was ultimately decided that it was.
A preliminary conference was held before CR Hodgson on 23 April 2015. At this conference, the Respondent foreshadowed that it would be informally requesting from the Applicant a list of his treating medical practitioners as well as employer details for the periods when the Applicant was not employed in the maritime industry which information it would use to request the issue of summonses to produce documents relevant to the application.
On 27 April 2015, the Respondent’s representative wrote to the Applicant stating:
In order for us to issue Summonses to Produce, we require the following information from you:
1. Please list all your employers from 1995 to date; and
2.Please list all treating doctors you consulted in respect of your back condition from 1995 to date.
By letter dated 20 May 2015, the Applicant responded to the Respondent’s request for information as follows:
1. Not Relevant
2. Not Relevant
On 5 June 2015, the Respondent’s representative wrote to the Applicant stating:
Section 67 of the [SRCA] enables P&O to request information that is relevant to your claim. Our letter of 27 April 2015 requests a list of your employers from 1995 to date, as well as all treating doctors that you consulted in respect of your back condition from 1995 to date.
Your claim is based upon an allegation that you suffered an injury around 1993 whilst in the course of employment by P&O. You also allege that the injury never resolved and that it subsequently degenerated following your fall last year.
In order for P&O to make an informed assessment of your allegations, it needs to consider the link (if any) between your present alleged back injury and your earlier claim for benefits pursuant to the SRCA from your injury between 1995 and 2014 and what statements you have made to treating doctors during that time. Accordingly, the information we have requested is clearly relevant to your claim and you are obliged to provide it to our client pursuant to section 67.
By letter dated 16 June 2015, the Applicant responded to the Respondent’s letter dated 5 June 2015 stating that the Respondent’s letter dated 27 April was “not a request under section 67[SRCA], that he had already provided the relevant maritime industry information and that he was under no obligation to provide the Respondent with “information outside the maritime industry”.
Following various failed attempts by CR Hodgson to progress the matter with the parties, on 13 November 2015, the matter was listed for a directions hearing before DP Kendall. At that directions hearing, DP Kendall expressed his concern that the matter was not progressing (i.e. the application having been filed on 12 February 2015). DP Kendall recommended that in order to progress the matter the Respondent file and serve a letter setting out the information the Respondent and Tribunal requires in order to properly determine the outcome of the Applicant’s review application and that the Applicant be afforded an opportunity to respond to this letter.
The directions hearing on 13 November 2015 was followed up by a telephone call by DR Johnson with the Applicant to “discuss the outcome, deal with any concerns and ensure [the Applicant] is aware of the process of Compensation applications”. DR Johnson’s notes of that conversation record the following:
Initially the applicant was quite abrupt and did not want to engage me in conversation about his case, stating that he was no mug and knew what he was doing although he was not a lawyer. He said he was quite happy with the outcome of the TDH today was happy to wait for the Respondent’s letter. Once received he will respond to the letter and is happy to deal with any further TDH if required.
On 17 November 2015, the Respondent filed and served a letter in accordance with the recommendation made by DP Kendall at the directions hearing held on 13 November 2015. That letter states, in part:
You have insisted that any employers outside of the offshore industry are not relevant for the purposes of any claim under the SRCA.
Respectfully we disagree.
In order for you to obtain compensation under the SRCA from P&O, you must be determined to have sustained an “injury” which has resulted from an incapacity from undertaking the usual duties of your employment, the need to undergo medical treatment and to travel to medical appointments as well as alterations to your home and attendant care services. “Injury” is defined by the (sic.) Section 3 of the SRCA as:
“An injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment.”
Your claim centres upon the physical injury which you allege first arose in 1993. Evidently, the injury resolved to the point where you were capable of resuming seagoing duties. The precipitating event of your present alleged incapacity arose in 2014, through circumstances that had nothing to do with the P&O.
The only link between P&O and your alleged present level of employment is that you sustained an injury to your lower back in 1993.
The Tribunal must therefore determine the link (if any) between the injury sustained in 1993 and the injury you allegedly sustained in 2014.
The only way in which the Tribunal can undertake this task is by having regard to your clinical history from 1993 to date.
It is for this reason that we have now requested on two occasions that you provide us with a list of doctors you have consulted in respect of your back injury from 1993 to date.
The reason for this request is that it has been made clear to you in the course of previous Telephone Conferences that the Respondent will then issue Summonses to Produce Documents to all of those medical records. These records are critical to the Tribunal’s consideration of the link between your 1993 injury and your alleged 2014 injury.
In addition to this information, your employment history from 1995 is also critical to determine the link (if any) between the 1993 injury and your presently alleged incapacity for employment. You evidently recovered sufficiently from your 1993 injury to resume work in the offshore industry, however the information you have provided is incomplete. You have previously provided us with a list of your employers from 2006 to 2011 and have indicated that you consider any employment outside of the maritime or offshore industry to be irrelevant.
As you can see from the above, it is paramount for the Tribunal to know not only the nature of the injury you sustained in 1993, but also its progression. Consequently, we require a list of all of your employers from 1995 to date for us to be able to then issue Summonses to Produce Documents to determine the state of your physical fitness and the status of your injury during the course of the next 22 years which elapsed between 1993 and 2014.
The need for the Tribunal to receive this information is reinforced by documents which we have obtained from P&O’s former solicitors. Copies of these documents relevant to the application have been lodged with the Tribunal in a second volume of T-documents.
……….
………an issue of fundamental importance to the Tribunal’s determination of this claim is whether or not Section 61 [of the SRCA] precludes your claim for compensation at all.
As you can see from the above, we contend that the following information is critically important to the Tribunal’s determination of your claim and must be produced:
1.A list of doctors you have consulted for you back injury from 1993 to date; and
2.A list of your employers from 1993 to date. [Emphasis added]
By letter dated 20 November 2015, the Applicant responded to the Respondent’s letter dated 17 November 2015. In his letter of 20 November 2015, the Applicant states:
The respondent lawyer continues 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 became a civilian and was sacked and paid his own medical treatment.
………
The claimant addresses the injury on 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 (sic.) suffered an injury on 16/12/1993 causing the recurrence.
On 2 December 2015, DR Johnson telephoned the Applicant to discuss the Respondent’s letter dated 17 November 2015. DR Johnson’s notes of the conversation record that DR Johnson “offered to discuss the letter if that might help his understanding of the situation” (although, at this time, DR Jonson had not yet received the Applicant’s letter in response dated 30 November 2015).
On 15 December 2015, the Applicant wrote to the Tribunal complaining about the way his application was being handled by the Tribunal, stating:
…….I have no faith what so ever in the three main people who are playing an active role in my case.
And I tell you why.
lets start with case manager Melinda Castle, I have not heard a peep out of her since the case has been running. Some case Manager.
Registrar Barry Johnson, here’s a guy that rings me up and tells me he is not a lawyer but if there is anything he can help me with he would be happy to be of assistance, when I take him up on the offer, and ask him to go through my file and highlight all the deceit in the respondent’s lawyers correspondence and Comcare report, he declines. The file is two inches thick.
Deputy Kendall A good old Irishman who scored a good job, hundred and twenty grand a year, what about the unemployed, people that have not been payed (sic.) for two years fighting for there (sic.) rights all because the insurance company declines the claim and gets hotshot lawyers to tell learned untruths. Did he forget where his roots are from. This is a guy itching to get my claim dismissed because he has been running with the respondent’s lawyers from the start, because he thinks he is on the winning side.
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.
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.
At the directions hearing on 23 December 2015, the Tribunal (SM Walsh) then made the following direction:
1.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. [Emphasis added]
On 14 January 2016, the Applicant wrote to the Tribunal requesting that the directions made by the Tribunal on 23 December 2015 be revoked. The Applicant’s letter of 14 January 2016 also states, in part:
2.The request on the on the (sic.) 21/11/2014 was the only official request made under section 67 of the SRCA, the respondent’s lawyers are just conducting a fishing expedition and presenting a red herring in all there (sic.) previous correspondence.
……..
4.The Claimant does not believe that it was a fair hearing conducted by member Walsh, that was evidence when she tried to blame the Claimant for the delay in the proceedings and tried to force the claimant to comply with the directions by 4 January 2016.
5.The Respondents lawyers are simply not entitled to information outside the SRCA.
On 3 February 2016, the Applicant wrote to the Tribunal stating:
The Claimant has not received a Reply to his letter Dated 14-1-2016. Neither the Respondent nor the AAT has replied, therefore the Claimant now Requests an extension of time to comply or vary the order made by Member Walsh on 23rd Dec 2015.
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.
On 7 March 2016, the Applicant wrote to the Tribunal requesting 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.
By email dated 9 March 2016, the Registry notified the Respondent of the Applicant’s extension of time/adjournment request.
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.
The Applicant failed to comply with Direction 2 of the Tribunal’s Directions, dated 25 February 2016, on or before 10 March 2016.
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.
The Tribunal considers that it gave the Applicant “reasonable time” within which to comply with its direction, dated 25 February 2016, and that its decision to dismiss the Applicant’s review application was justified in the circumstances of this particular case. The Tribunal considers that its decision to dismiss that Applicant’s review application should be considered in the context of the factual and procedural background to this application, as set out above.
More specifically, the Tribunal notes that, as set out above, the Applicant first lodged his review application on 12 February 2015 such that, at the time his application was dismissed, on 11 March 2016, the matter had been on foot for over a year without being able to be progressed to hearing essentially as a result of the Applicant’s failure to assist the Tribunal by providing it with information it considers necessary to have at its disposal in order to properly execute its merit review function and fulfil its statutory objective in s 2A of the AAT Act (see s 33(1AB) of the AAT Act) and, in the Tribunal’s most recent directions, dated 25 February 2016, the Tribunal effectively provided the Applicant with a further extension of time in which to comply with the direction it first made on 23 December 2015. The Tribunal considers that those facts, when considered together with the factual and procedural background set out above, justifies the course taken by the Tribunal in this case. In making its decision, the Tribunal was also mindful of its statutory “objective”, as set out in s 2A of the AAT Act. Section 2A of the AAT Act states:
In carrying out its function, 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.
In the particular circumstances of this case, the Tribunal considers that it may also have been open to the Tribunal to dismiss the Applicant’s application under s 42A(5)(a) of the AAT Act (dismissal where applicant fails to proceed with application within a reasonable time) or, alternatively, s 42B(1) of the AAT Act, on the basis that the Tribunal was satisfied that this application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospects of success; or
(c) is otherwise an abuse of process of the Tribunal.
However, since the Tribunal chose to dismiss the application under s 42A(5)(b) of the AAT Act, it is unnecessary to consider the application of these provisions to this particular case further here.
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh ...[Sgd].....................................................................
Administrative Assistant
Dated 3 May 2016
Date of decision 11 March 2016 Applicant In person Representative for the
RespondentMr B Buckhurst Solicitors for the Respondent
Holman Fenwick Willan
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