O'Sullivan and P & O Maritime Services Pty Ltd (Compensation)
[2019] AATA 4759
•7 August 2019
O'Sullivan and P & O Maritime Services Pty Ltd (Compensation) [2019] AATA 4759 (7 August 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:7 August 2019
Place:Perth
Mr O’Sullivan’s requests for referral of questions of law to the Federal Court of Australia are refused.
........................[sgd]................................................
Mr S. Webb, Member
CATCHWORDS
SEAFARERS’ COMPENSATION – claim for compensation in respect of an injury – request for referral of a question of law to the Federal Court of Australia – considerations relevant to exercise of discretion – meaning of “question of law arising in a proceeding” – referral not justified – discretion not exercised – requests for referral to the Federal Court refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 3, 33, 40A, 42A, 43, 43B, 44, 45, 61
Safety Rehabilitation and Compensation Act 1988 (Cth) – s 58
Seafarers Rehabilitation and Compensation Act 1992 (Cth) – ss 3, 26, 28, 31, 43, 51, 61, 63, 67, 68, 73, 77, 78, 79, 83, 89, 90A
Federal Court Rules 2011 (Cth) – r 33.12
CASES
Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21
Comcare v Etheridge [2006] FCAFC 27
Cosco Holdings Pty Ltd v Commissioner for Taxation [1997] FCA 1504
Davina and Defence Force Retirement and Death Benefits Authority [1996] AATA 474
Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588
Haritos v Commissioner of Taxation [2015] FCAFC 92
Lower and Comcare [2003] AATA 540
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
Re Sommers and Telstra Corporation Ltd [2006] AATA 758
Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90
WA Pynes Pty Ltd v Bannerman (1980) 41 FLR 175SECONDARY MATERIALS
Maritime Industry Offshore Oil and Gas Operations Award 1991
REASONS FOR DECISION
Mr S. Webb, Member
7 August 2019
In 1993, Michael O’Sullivan was employed by P & O Maritime Services Pty Ltd
(the Company). He sustained an injury to his lower back for which he claimed and was paid benefits under the Maritime Industry Offshore Oil and Gas Operations Award 1991 (the Award). In 2014, Mr O’Sullivan lodged a compensation claim with the Company in respect of a back injury. The Company rejected the claim and related matters are presently the subject of Tribunal proceedings.
In the course of these proceedings, Mr O’Sullivan requested referral of alleged questions of law to the Federal Court of Australia (the Federal Court) under s 45 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
The alleged questions of law Mr O’Sullivan wants referred to the Federal Court are in the following terms:
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 Seafarers Rehabilitation and Compensation Act 1992.[1]
[1] Exhibit 2, ‘21’.
And further
6.According to the guidelines and information about claiming workers compensation and the form approved by the Seacare Authority, in accordance with subsection 63[2] of the Seafarers Act, was the claim form dated 29 October 2014, made by Mr O’Sullivan, addressed to the correct employer as per the instructions of the Seacare Authority and if so:
{a} As per the Seacare Authority instructions, did Mr O’Sullivan correctly identify the employer at question 10 of the claim form, which states the name of the employer at the time of injury, given that all references to the employer mean the employer against whom the claim is made. And if that is so:
{b}Was P&O Maritime Services Pty Ltd advised by the Seacare Secretariat that the claim is valid, and if that is so, and the answer to all the above 3 questions is yes then:
7. Has P&O Maritime Services, been acting as mr O’Sullivan’s employer, in relation to the claim for injury that occurred on 26 August 2014, the subject of the claim form dated 29 October 2014 under s 63, s67, s68, s73, s77, s78, s79 of the Seafarers Act.
And if the answer is yes and:
{a}The issue and question to be addressed by the Tribunal, “is whether the Company is Mr O’Sullivan’s actual or deemed employer for the purposes of his claim for compensation under the SRC Act in respect of an injury sustained on 26 August 2014” and as there is no general definition of actual, original, or deemed employer under the SRC Act then:
{b} Is P&O Maritime Services Pty Ltd for the purposes of Mr O’Sullivans claim for compensation under the SRC Act in respect of an injury sustained on 26 August 2014 Mr O’Sullivans definitive employer under s79[6] of the SRCA 1992 and if the answer is also yes to the above 3 questions does:
8. It dispose [sic] of the application, before the Administrative Appeals Tribunal, matter No 2015/0698.[2]
[2] Letter of Mr O’Sullivan, 7 May 2019.
It is Mr O’Sullivan’s request for referral of these matters to the Federal Court, alone, that is the subject of this decision.
BACKGROUND FACTS
The Tribunal proceedings in this matter have been long and procedurally complex.
The facts have been recited in previous judgements and decisions, namely –
(a)O’Sullivan v P & O Maritime Services Pty Ltd
[1998] DCWA CIV2466 of 1997
(17 September 1998);
(b)O’Sullivan and P & O Maritime Services Pty Ltd [2016] AATA 283 (3 May 2016);
(c)O’Sullivan v P & O Maritime Services Pty Ltd [2016] FCA 969 (9 August 2016);
(d)O’Sullivan and P & O Maritime Services Pty Ltd
[2016] AATA 865
(10 October 2016);
(e)O’Sullivan v P & O Maritime Services Pty Ltd [2017] FCA 47 (2 February 2017);
(f)O’Sullivan v Barker J & Ors [2017] HCA P38 of 2017 (8 November 2017);
(g)O’Sullivan v Barker J & Ors [2018] HCA P62 of 2017 (21 March 2018);
(h)O’Sullivan and P & O Maritime Services Pty Ltd [2018] AATA 2899 (15 August 2018); and
(i)O’Sullivan and P & O Maritime Services Pty Ltd [2019] AATA 126 (8 February 2019).
I adopt the facts set out in paragraphs [8] to [76] in O’Sullivan and P & O Maritime Services Pty Ltd [2019] AATA 126. It is not necessary to recite these facts in full for present purposes.
In order to assist understanding, however, I will set out the key facts relevant to the issues I must presently decide.
On 16 December 1993, Mr O’Sullivan injured his back in a fall while working as a Greaser on the vessel Lady Dawn in the Company’s employ. The circumstances of the injury are set out in the Incident Report that Mr O’Sullivan completed on the day.[3]
[3] T15.
He was employed under the Award.[4]
[4] T22, folio 9.
It appears Mr O’Sullivan advised the Company that he wanted to claim under the provisions of the Award rather than under the Seafarers Rehabilitation and Compensation Act 1992 (the SRC Act).[5] There is a dispute about whether Mr O’Sullivan made a valid election for the purposes of s 61 of the SRC Act. I note previous consideration of this issue in O’Sullivan and P & O Maritime Services Pty Ltd,[6] and I adhere to the conclusions reached albeit inconclusively. I do not need to further examine or attempt to resolve this issue for present purposes.
[5] T16, T17 and T27 refer.
[6] [2018] AATA 2899 at [76]-[87].
From 17 December 1993 to 16 November 1995, the Company paid Mr O’Sullivan weekly benefits for incapacity under the Award.
On 19 December 1994, Mr O’Sullivan’s employment with the Company ended.
On 16 November 1995, the 100 week payment limit under cl 30 of the Award was reached and the Company’s insurer, American Home Assurance Company, ceased paying Mr O’Sullivan for lost wages.
Mr O’Sullivan pursued a common law claim against the Company.
On 17 September 1998, O’Sullivan DCJ ruled that Mr O’Sullivan was ‘precluded from instituting or proceeding with a common law action’ as he had made an election to receive benefits under the Award rather than compensation under the SRC Act.[7]
[7] CIV 2466 of 1997; Lib No D980258.
On 12 November 2014, Mr O’Sullivan claimed compensation in respect of an alleged injury to his lower back on 26 August 2014. The injury was stated to be ‘Lumbrosacral radiculopathy – slipped disc’ affecting ‘Lower back – left leg’.[8] Mr O’Sullivan nominated the Company as his employer ‘at the time of the injury’.[9]
[8] Ibid, folio 41.
[9] T8 folio 39.
The alleged injury is said to have occurred at ‘945am-1005am’ on 26 August 2014 in the following circumstances –
27. Where did the injury or illness happen? …
Outside maritime union and maritime mining power credit union building
…
31. Please describe, in your own words, the events that led to your injury or illness, including unexpected events
Leaving the building after paying union fees and registering for employment and accidently [sic] missed the step and jarred my back.[10]
[10] Ibid, folios 41-42.
In the compensation claim form, Mr O’Sullivan indicated that he was claiming for –
15. …
- lost wages resulting from incapacity for work;
- medical and related expenses;
- travel expenses attending medical examination/rehabilitation;
- alterations, aids or appliances; and
- household and attendant care services[11]
[11] Ibid, folio 39.
Mr O’Sullivan signed a declaration which includes the following election: ‘I elect to claim benefits under the Seafarers Act and not under an industrial award or agreement’.[12]
[12] Ibid, folio 43.
On 21 November 2014, the Company requested further information from Mr O’Sullivan under s 67 of the SRC Act, in the following terms –
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.[13]
Please note that the 12 day liability determination timeframe has ceased until this information is received.[14]
[13] Exhibit 3, ‘14’.
[14] 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[15]
[15] Exhibit 3, ‘15’; T11, folio 47.
On 8 December 2014, the Company decided to reject the claim.[16]
[16] T12, folio 48 and 49.
Mr O’Sullivan requested reconsideration of the decision.[17]
[17] T13, folio 50.
The Company did not make a reconsideration decision within the time specified under
s 79(1)(a) of the SRC Act. 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.[18]
[18] T1, folios 3 and 4.
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’.[19] Mr O’Sullivan declined this request, 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
...[20]
[19] Exhibit 2, ‘16’.
[20] Ibid ‘19’.
On 23 December 2015, the Tribunal issued the following directions –
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.
Mr O’Sullivan challenged the Tribunal directions 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.[21]
[21] Exhibit 2, ‘20’.
On 17 February 2016, Mr O’Sullivan requested referral of an alleged question of law to the Federal Court, stating – [22]
…
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].[23]
[22] Ibid ‘21’.
[23] Ibid.
On 3 May 2016, without addressing his request for referral of an alleged question of law to the Federal Court, the Tribunal dismissed Mr O’Sullivan’s application for want of compliance. [24] This alleged question of law is one of the matters Mr O’Sullivan is pressing for referral to the Federal Court.
[24] O’Sullivan and P & O Maritime Services Pty Ltd [2016] AATA 283.
Mr O’Sullivan successfully challenged the dismissal decision in the Federal Court.
On 9 August 2016, Siopis J set aside the dismissal decision and remitted the matter to be determined according to law by the Tribunal.[25] In so doing, Siopis J identified two questions of law on which the appeal was raised –
9. … The notice of appeal does not precisely identify the questions of law relied on; but, in essence, the questions were whether Mr O’Sullivan had been denied procedural fairness in the Tribunal; and also whether there was an inconsistency between s 67(2) of the Seafarers Rehabilitation and Compensation Act and s 33(2) of the AAT Act.
[25] O’Sullivan and P & O Maritime Services Pty Ltd [2016] FCA 969.
As the appeal was resolved on the first question, Siopis J did not proceed to deal with the second question.
The Tribunal proceedings resumed.
On 10 October 2016, with the agreement of the parties, I gave a ruling on a preliminary point in respect of Mr O’Sullivan’s employer.[26]
[26] O’Sullivan and P & O Maritime Services Pty Ltd [2016] AATA 865.
Mr O’Sullivan appealed this ruling to the Federal Court. On 2 February 2017, McKerracher J dismissed the appeal.[27]
[27] 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.[28]
[28] O’Sullivan v P & O Maritime Services Pty Ltd [2017] FCA 508.
On 17 August 2017, Mr O’Sullivan sought relief from the judgements of McKerracher J and Barker J in the High Court of Australia.[29] 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.[30]
[29] O’Sullivan v Barker J & Ors [2017] HCA P38 of 2017, page 1 of the judgement.
[30] 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.[31] On 21 March 2018, Bell and Gaegler JJ refused the application.[32]
[31] O’Sullivan v Barker J & Ors [2018] HCA P62 of 2017.
[32] 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 and 2 July 2018, I 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 4 July 2018 Mr O’Sullivan sought referral of a question of law to the Federal Court –
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 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 16 August 2018, Mr O’Sullivan’s request for referral of a question of law to the Federal Court under s 45 of the AAT Act was refused as the issue raised in respect of s 61 of the SRC Act relied upon certain factual findings which have not yet been made, rendering the requested referral premature.[33]
[33] O’Sullivan and P & O Maritime Services Pty Ltd [2018] AATA 2899 at [54]-[88].
At various times thereafter, Mr O’Sullivan gave the Tribunal information he considered relevant to the Tribunal’s directions –
(a)On 16 August 2018, he provided a receipt of an application to the Fiona Stanley Fremantle Hospitals Group for access to information, namely ‘Summaries and notes of inpatient O’Sullivan injury 26 August 2014’.[34]
(b)On 23 August 2018, he provided the following information:
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.[35]
(c)On 4 September 2018, Mr O’Sullivan clarified that he had not been employed by any employers since 2014.
(d)On 10 September 2018, he stated –
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.[36]
[34] Exhibit 1, ‘7’. The exhibits referred to in this decision are those taken in by the Tribunal when hearing the Company’s application for dismissal of Mr O’Sullivan’s application for review.
[35] Ibid, ‘8’.
[36] Ibid, ‘9’.
On 8 February 2019 I refused the Company’s application for dismissal of Mr O’Sullivan’s application.[37] Mr O’Sullivan was given time to inform the Tribunal if he intended to press for referral of the alleged question of law raised on 16 February 2017 to the Federal Court. He did so on 22 February 2019. Time was allowed for the parties to be heard on this issue.
[37] O’Sullivan and P & O Maritime Services Pty Ltd [2019] AATA 126.
On 7 May 2019, Mr O’Sullivan raised further alleged questions of law he wants referred to the Federal Court –
6. According to the guidelines and information about claiming workers compensation and the form approved by the Seacare Authority,
in accordance with subsection 63[2] of the Seafarers Act, was the claim form dated 29 October 2014, made by Mr O’Sullivan, addressed to the correct employer as per the instructions of the Seacare Authority and if so:
{a} As per the Seacare Authority instructions, did Mr O’Sullivan correctly identify the employer at question 10 of the claim form, which states the name of the employer at the time of injury, given that all references to the employer mean the employer against whom the claim is made. And if that is so:
{b} Was P&O Maritime Services Pty Ltd advised by the Seacare Secretariat that the claim is valid, and if that is so, and the answer to all the above 3 questions is yes then:
7. Has P&O Maritime Services, been acting as Mr O’Sullivan’s employer, in relation to the claim for injury that occurred on 26 August 2014, the subject of the claim form dated 29 October 2014 under s 63, s67, s68, s73, s77, s78, s79 of the Seafarers Act.
And if the answer is yes and:
{a} The issue and question to be addressed by the Tribunal,
“is whether the Company is Mr O’Sullivan’s actual or deemed employer for the purposes of his claim for compensation under the SRC Act in respect of an injury sustained on 26 August 2014” and as there is no general definition of actual, original, or deemed employer under the SRC Act then:
{b} Is P&O Maritime Services Pty Ltd for the purposes of Mr O’Sullivan’s claim for compensation under the SRC Act in respect of an injury sustained on 26 August 2014 Mr O’Sullivan’s definitive employer under s79[6] of the SRCA 1992 and if the answer is also yes to the above 3 questions does:
8. It dispose of the application, before the Administrative Appeals Tribunal, matter No 2015/0698.[38]
[38] Letter of Mr O’Sullivan, 7 May 2019.
On 20 May 2019, in a directions hearing, I informed the parties I would deal with
Mr O’Sullivan’s requests for referral of alleged questions of law to the Federal Court in a single decision, and in that directions hearing I allowed time for the parties to be heard. The parties subsequently made written submissions on these questions, to which I have had regard.
ISSUES
The issue for determination is whether any of the questions posed by Mr O’Sullivan should be referred to the Federal Court under s 45 of the AAT Act. In order to make this determination it is necessary to decide –
(a)if any of the questions posed can properly be construed as a question of law suitable for referral to the Federal Court; and if so
(b)whether it is appropriate to exercise the discretion of the Tribunal to refer any such question to the Federal Court.
Question of law
The alleged questions of law Mr O’Sullivan has requested be referred to the Federal Court are, in some regards, a little difficult to understand. The first question is stated in the following terms –
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 Seafarers Rehabilitation and Compensation Act 1992.
Mr O’Sullivan’s further questions are:
6. According to the guidelines and information about claiming workers compensation and the form approved by the Seacare Authority, in accordance with subsection 63[2] of the Seafarers Act, was the claim form dated 29 October 2014, made by Mr O’Sullivan, addressed to the correct employer as per the instructions of the Seacare Authority and if so:
{a} As per the Seacare Authority instructions, did Mr O’Sullivan correctly identify the employer at question 10 of the claim form, which states the name of the employer at the time of injury, given that all references to the employer mean the employer against whom the claim is made. And if that is so:
{b} Was P&O Maritime Services Pty Ltd advised by the Seacare Secretariat that the claim is valid, and if that is so, and the answer to all the above 3 questions is yes then:
7. Has P&O Maritime Services, been acting as mr [sic] O’Sullivan’s employer, in relation to the claim for injury that occurred on 26 August 2014, the subject of the claim form dated 29 October 2014 under s 63, s67, s68, s73, s77, s78, s79 of the Seafarers Act.
And if the answer is yes and:
{a} The issue and question to be addressed by the Tribunal, “is whether the Company is Mr O’Sullivan’s actual or deemed employer for the purposes of his claim for compensation under the SRC Act in respect of an injury sustained on 26 August 2014” and as there is no general definition of actual, original, or deemed employer under the SRC Act then:
{b} Is P&O Maritime Services Pty Ltd for the purposes of Mr O’Sullivans claim for compensation under the SRC Act in respect of an injury sustained on 26 August 2014 Mr O’Sullivans definitive employer under s79[6] of the SRCA 1992 and if the answer is also yes to the above 3 questions does:
8. It dispose of the application, before the Administrative Appeals Tribunal, matter No 2015/0698.
As can be seen, the questions Mr O’Sullivan has posed are hypothetical, imprecise, convoluted and largely directed to factual considerations. As framed, they are not questions of law suitable for referral to the Federal Court.
Nonetheless, as Mr O’Sullivan is representing himself without legal assistance, some latitude should be allowed.
The Company asserts that Mr O’Sullivan has not raised a question of law and his request for referral 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.
As can be seen, the power to refer under s 45(1) is discretionary and permissive – there is no obligation or mandatory requirement for a referral to be made at the request of a party.[39] Furthermore, the referral power is subject to agreement of the President. Whatever the views of the parties and the Tribunal constituted to hear the application might be, a request for referral of a question of law to the Federal Court cannot be acceded to without the Tribunal President’s agreement.
[39] See, for example, Davina and Defence Force Retirement and Death Benefits Authority [1996] AATA 474 at [11]-[13].
Importantly, the discretion to refer is directed to and conditioned by the existence of
‘a question of law arising in a proceeding before the Tribunal’. The phrases ‘question of law’ and ‘arising in a proceeding before the Tribunal’ do not have any special meaning, and must be construed according to the text, context and purposes of the legislation.
In Birdseye v Australian Securities and Investments Commission,[40] the majority stated that –
In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal.[41]
[40] [2003] FCAFC 232.
[41] Ibid, per Branson and Stone JJ at [18].
The requirement for precision when stating a question of law for the purposes of an appeal under s 44 of the AAT Act is presently set out in rule 33.12(2)(b) of the Federal Court Rules 2011. The object of this rule was referred to by the Full Court in Haritos v Commissioner of Taxation in the following terms –[42]
It is of great importance that the question or questions of law should be stated with precision. That is the point of r 33.12 of the Federal Court Rules, and of its predecessor, O 53 r 3(2). We have set out the present rule above at [3]. But the end sought to be achieved by the rule is to have the question of law stated with sufficient precision.
[42] [2015] FCAFC 92 at [91].
While, in some regards, the formulation of a question of law for referral to the Federal Court under s 45 of the AAT Act serves a different purpose than a question of law in the context of an appeal under s 44,[43] the importance of precision in framing such a question and clearly setting out the factual basis on which it arises does not fall away.[44] Addressing this point in Comcare v Etheridge,[45] having noted that ‘an appeal “on a question of law” is narrower than an appeal that merely involves a question of law’,[46] Branson J (with whom Spender and Nicholson JJ agreed) said at [14] –
The legislature, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 44(1), disclosed an intention to limit the capacity of the Court on an appeal under s 44(1) to review factual findings of the Tribunal…The subject matter of an appeal under s 44(1) of the AAT Act is (shorn of the requirement to determine what, if any, entitlement to relief flows from the answer to the question or questions of law) of the same character as the subject matter of a reference of a question of law to the Court made under s 45 of the AAT Act.
[43] Ibid at [62], for example.
[44] Ibid at [92], for example.
[45] [2006] FCAFC 27.
[46] Ibid, at [13].
This kind of precision enables a proper assessment to be made of a request for referral under s 45. It is also important in obtaining a relevant answer or determination from the Federal Court, should a referral be made.
Furthermore, 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’.[47]
[47] Haritos v Commissioner of Taxation [2015] FCAFC 92 at [93] citing Screen Australia v EME Productions No 1 Pty Ltd [2012] FCR 282 at [24] per Keane CJ, Finn and Gilmour JJ..
It is for these reasons that the Tribunal has considered the following inclusive considerations and preconditions applicable and relevant when assessing a request under s 45(1) [48], namely
[48] O'Sullivan and P&O Maritime Services Pty Ltd [2018] AATA 2899 at [66]; Lower and Comcare [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.
As for the phrase ‘arising in proceedings before the Tribunal’, there are a number of matters to consider.
The power conferred to refer a question of law to the Federal Court is not at large, but is confined to a question of law ‘arising in a proceeding before the Tribunal’. Section 43B(1) of the AAT Act provides that Part IVA, concerning appeals and references of questions of law to the Federal Court, applies to a proceeding that is before the Tribunal under power conferred by an enactment. It is within this frame that the discretionary referral power conferred by s 45 is to be construed.
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.
As can be seen, a ‘proceeding’ includes an application to the Tribunal for review of a decision, as well as any incidental application to the Tribunal made in the course of, or in connection with, such a review.
For present purposes, ‘a proceeding before the Tribunal’ may be taken to commence with an application for review of a decision under an enactment conferring jurisdiction upon the Tribunal. The existence of the Tribunal’s jurisdiction, or the scope of jurisdiction conferred upon it in a particular case, is not always clear cut. Where disputation or uncertainty arises about the existence or limit of the Tribunal’s jurisdiction, the important question for the purposes of s 45 is whether the jurisdictional question is one that arises in the course of a proceeding pursuant to an application for review of a decision. Where that is the case, the discretion to refer a question of law to the Federal Court may be invoked. In Lower and Comcare,[49] the Tribunal concluded that 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’.[50] This notwithstanding, where the existence of the Tribunal’s jurisdiction is unclear, some caution is required and it is apposite to bear in mind what Deane J (as he then was) said in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd,[51] 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.
[49] [2003] AATA 540.
[50] Ibid at [30].
[51] [1979] FCA 21.
Presently, while there may be a question about the scope of the Tribunal’s jurisdiction in respect of s 61 of the SRC Act, about which I expressed a preliminary view in O'Sullivan and P&O Maritime Services Pty Ltd (the first referral decision),[52] there is no doubt about the existence of jurisdiction in respect of Mr O’Sullivan’s substantive application. That application is in respect of a deemed decision, 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 claimed under ss 26, 28, 31, 43 and 51 of that Act.
[52] [2018] AATA 2899 at [78].
I adhere to what I said on this subject in the first referral decision in paragraphs [70] to [77], which I will not reiterate.
With these considerations in mind, there are a number of things to say about the matters Mr O’Sullivan has raised for referral to the Federal Court.
Power to compel
As I understand the first question Mr O’Sullivan has raised, he is seeking to test if, for the purposes of determining his compensation claim of 29 October 2014, he can be compelled under the SRC Act, or regulations made under that Act, to provide information relating to his medical history and employment during periods when he was not in the maritime industry.
The terms of the question are broad, hypothetical and imprecise as to the facts on which it is raised. It is not a properly formulated question of law for referral to the Federal Court.
Nevertheless, Mr O’Sullivan has, on several occasions in the course of these proceedings, raised matters that illuminate the issue he is attempting to agitate.
In particular, these matters relate to the operation of s 67 of the SRC Act and the Company’s power to obtain information from him under that section (or any other section of the SRC Act) relating to ‘time served outside the Maritime industry’. As I understand the issues he is agitating, Mr O’Sullivan asserts that the SRC Act and the power to obtain information under s 67 (or any other provision of this Act) are confined to the ‘Maritime industry’, and purporting to use s 67 to obtain any other information is in excess of the power conferred. He has previously raised a similar issue in relation to s 33(2) of the AAT Act, asserting that the Tribunal’s power to obtain information is subject to the legislation conferring jurisdiction on the Tribunal, in this case the SRC Act.It is necessary to consider the text of each section. Section 67 of the SRC Act is in the following terms:
67 Power to request the provision of information relevant to claim
(1) Subject to section 69, if an employer who has been given a claim is satisfied that the claimant:
(a) has information or a document that is relevant to the claim; or
(b) may obtain such information, or such a document or a copy of such a document, without unreasonable expense or inconvenience;
the employer may, by written notice given to the claimant, ask the claimant to give to the employer:
(c) the information, or the document or a copy of the document; or
(d) if paragraph (b) applies—a written authority to obtain the information or the document or a copy of the document.
(2) A claimant who has received a notice under subsection (1) is taken to have complied with the notice if the claimant gives the employer the information, the document or a copy of the document, or the authority, referred to in the notice.
(3) If a claimant, without reasonable excuse, does not comply with a notice under subsection (1), the employer may refuse to deal with the claim until the claimant gives the employer the information or the document or a copy of the document, or the authority, referred to in the notice.
Section 33 of the AAT Act is in the following terms:
33 Procedure of Tribunal
(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.
Decision‑maker must assist Tribunal
(1AA) 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.
Parties etc. must assist Tribunal
(1AB) A party to a proceeding before the Tribunal, and any person representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A.
Directions hearing
(1A) The President or an authorised member may hold a directions hearing in relation to a proceeding.
Who may give directions
(2) For the purposes of subsection (1), directions as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be given:
(a) where the hearing of the proceeding has not commenced—by a person holding a directions hearing in relation to the proceeding, by the President, by an authorised member or by an authorised officer; and
(b) where the hearing of the proceeding has commenced—by the member presiding at the hearing or by any other member authorized by the member presiding to give such directions.
Types of directions
(2A) Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:
(a) require any person who is a party to the proceeding to provide further information in relation to the proceeding; or
(b) require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or
(c) require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing; or
(d) limit the number of witnesses who may be called to give evidence (either generally or on a specified matter); or
(e) require witnesses to give evidence at the same time; or
(f) limit the time for giving evidence or making oral submissions; or
(g) limit the length of written submissions.
There are several points to note.
Firstly, the operation of s 67 of the SRC Act is not a matter for the Tribunal to determine. Whatever the limits of the s 67 may be, it is very clear that the section authorises an ‘employer’ to ask a ‘claimant’ by issue of notice to provide ‘information or a document that is relevant to the claim’, or to provide ‘a written authority to obtain the information, the document, or a copy of the document’; where failure to comply without a reasonable excuse may result in the employer refusing to deal further with the claim until the information or authority has been provided by the claimant. The power conferred is subject to the ‘employer’ being satisfied that the claimant ‘has’ the information or document, or ‘may obtain’ it ‘without unreasonable expense or inconvenience’.
Secondly, the words ‘relevant to the claim’ in s 67(1)(a) are to be construed in a manner that is consistent with the language, context and purposes of the SRC Act. To my mind, noting that the matter is not one for the Tribunal to decide, while the SRC Act is a beneficial enactment providing for the rehabilitation and compensation of injured seafarers, there is no express or implied limit to matters that may be relevant to a claim, such that only information or documents relating to time spent in the maritime industry would be considered ‘relevant’.
Thirdly, the power the section confers upon an ‘employer’ to request information is for a legitimate forensic purpose relating to the particular claim. Within this frame, the test to be applied is one of adjectival or apparent relevance, which is not confined to substantive relevance and does not extend to speculative enquiry. In Re Sommers and Telstra Corporation Ltd (Sommers),[53] the Tribunal reached a similar conclusion in reference to
s 58 of the Safety, Rehabilitation and Compensation Act 1988 (the 1988 Act) which is cast in comparable terms to s 67 of the SRC Act. Importantly, the Tribunal in Sommers’ case accepted that the test of relevance to be applied under s 58 of the 1988 Act is the same as that applying in respect of a Tribunal summons. To my mind, no different test would apply under s 67 of the SRC Act. Thus, the test of apparent relevance Beaumont J set out in Trade Practices Commission v Arnotts Limited,[54] namely that
‘the documentation called for could possibly throw light on the issues in the main case’, may be applicable. In Dorajay Pty Ltd v Aristocrat Leisure Ltd,[55] Stone J approved of
Spender J’s comments about Beaumont J’s test of apparent relevance in Cosco Holdings Pty Ltd v Commissioner for Taxation, stating:[56]Notwithstanding the use of the word “possibly” in this paragraph, in my opinion, that word is not used in any speculative sense. I take his Honour’s conclusion expressed in that paragraph as an acquiescence to the correctness of the submission that the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. It is not a question of looking at the documents to see if the documents might permit a case to be made.
[53] [2006] AATA 758.
[54] (1989) 88 ALR 90 at 102-103.
[55] [2005] FCA 588 at [17].
[56] [1997] FCA 1504.
On this latter point, it is apposite to reiterate what Brennan J (as he then was) with whom Bowen CJ agreed, said in WA Pynes Pty Ltd v Bannerman in respect of what is required to obtain discovery, that ‘sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery’. [57]
[57] (1980) 41 FLR 175 at 181.
Finally, under s 90(2) of the SRC Act, where an ‘employer’ has determined a claim and issued a notice under either s 67 or s 83 which the claimant failed to comply with, and the claimant had, or could have obtained without unreasonable expense or inconvenience, the information or document specified before the determination was made, the information or document is not admissible without leave of the Tribunal. Under s 90(3), leave must not be given unless the claimant provides reasons for the failure to comply with the ‘employer’s’ notice and special circumstances exist to justify the admission of the information or document. It is clear enough that these provisions apply where
‘the employer’ has exercised the power conferred by either s 67 or s 83.This notwithstanding, under s 43(1) of the AAT Act the Tribunal ‘may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision’ under review. Those powers may include the power conferred upon ‘the employer’ by s 83 in the SRC Act. Whether the s 83 power is exercised by
‘the employer’ or by the Tribunal for the purposes of reviewing a decision, the test of apparent relevance referred to above will apply.That said, the Tribunal has other powers conferred upon it that are of relevance to the issue Mr O’Sullivan has raised. Under s 33(1)(a) of the AAT Act, subject to any enactment, the Tribunal has power to determine procedure in proceedings before it and may inform itself on any matter in such manner as it thinks appropriate. This provision is not modified in any way by operation of s 89 of the SRC Act. Furthermore, under s 33(2) and (2A) of the AAT Act, the Tribunal has power to make directions and may ‘require any person who is a party to the proceeding to provide further information in relation to the proceeding’. This power is not modified by s 89 of the SRC Act. An applicant’s failure to comply with a Tribunal direction within a reasonable time may lead to the application being dismissed under s 42A(5)(b) of the AAT Act. This is to be distinguished from the Tribunal’s summons power under s 40A, where failure to comply is an offence in s 61. Whereas the power to issue a summons to produce a document under s 40A(1)(b) of the AAT Act is directed to ‘a person’, the s (33)(2) power is squarely directed to ‘a party to the proceeding’. Nevertheless, similar tests of relevance may apply. The words ‘in relation to the proceeding’ are sufficiently broad to encompass information that is of adjectival or apparent relevance to issues arising in the proceedings. That being so, there is no bar to the Tribunal directing Mr O’Sullivan to provide information about matters of apparent relevance to the decision that is the subject of his application for review.
Considering the terms, purposes and objects of the SRC Act and the AAT Act, there is no inconsistency between s 67(2) of the SRC Act and s 33(2) of the AAT Act that would require a different construction than the plain language of each section conveys. It should be noted that the power conferred upon an employer by s 67(2) of the SRC Act is for the purposes of obtaining information relevant to a claim, whereas the power conferred upon the Tribunal by s 33(2) of the AAT Act is for the purposes of obtaining information relevant to the review of a decision. The SRC Act does not expressly or impliedly limit information that may be relevant to a claim to time spent in the ‘Maritime industry’ by a claimant seafarer, and it does not operate on the AAT Act in any way that would impose a constraint of this kind upon the power to make a direction under s 33(2).
Thus, returning to the issue Mr O’Sullivan raised in his first alleged question of law, to my mind the law is clear and settled, and the answer to his question is clear enough without referral to the Federal Court. I am not persuaded that the issue raises a question of law of general importance that would be appropriate or proper to refer to the Federal Court.
Employer
As I understand the second series of consequential questions Mr O’Sullivan has posed, these all seek to test the legal status of the Company as ‘employer’ under various sections of the SRC Act and the consequential effect of this on his claim for compensation.
These questions are ambulatory and substantially factual in nature, and they are not capable of referral to the Federal Court under s 45 of the AAT Act.
Nevertheless, it is appropriate to make the following observations about the issues being agitated.
Firstly, as can be seen, the matters set out in 6{a} and {b} are factual questions.
6.According to the guidelines and information about claiming workers compensation and the form approved by the Seacare Authority, in accordance with subsection 63[2] of the Seafarers Act, was the claim form dated 29 October 2014, made by Mr O’Sullivan, addressed to the correct employer as per the instructions of the Seacare Authority and if so:
{a} As per the Seacare Authority instructions, did Mr O’Sullivan correctly identify the employer at question 10 of the claim form, which states the name of the employer at the time of injury, given that all references to the employer mean the employer against whom the claim is made. And if that is so:
{b} Was P&O Maritime Services Pty Ltd advised by the Seacare Secretariat that the claim is valid, and if that is so, and the answer to all the above 3 questions is yes then
Secondly, the question set out in 7 queries if the Company has ‘been acting as mr [sic] O’Sullivan’s employer in relation to the claim for injury that occurred on 26 August 2014’ in reference to ss 63, 67, 68, 73, 77, 78 and 79 of the SRC Act. Whatever the point underlying this question might be, and it is very far from clear to me, it is quite clear that the question is posed within the frame of the compensation claim Mr O’Sullivan made, alleging an ‘injury’ on 26 August 2014. In that claim, Mr O’Sullivan identified the Company as the ‘employer’, even though the Company was not his actual employer at that time.[58] The claim was made pursuant to s 63 of the SRC Act. It is clear enough that, by nominating the Company as ‘employer’ in a claim under s 63, Mr O’Sullivan was pressing a claim against the Company. Doing so does not render the Company liable for the injury claimed – that is a matter to be tested by evidence at the hearing of Mr O’Sullivan’s application. This has not yet occurred.
[58] O’Sullivan v P & O Maritime Services Pty Ltd [2017] FCA 17 at [25].
Furthermore, it is an historical fact that the Company was Mr O’Sullivan’s employer when he was injured in 1993. Whether or not that employment relationship between
Mr O’Sullivan and the Company is preserved by operation of s 4(4) of the SRC Act turns on the persistence of the injury he sustained at that time, or the consequential effects of that injury.[59] Once again, this is a matter to be tested by evidence at the hearing of
Mr O’Sullivan’s application for review. This has not yet occurred.
[59] Ibid, at [26].
This leads to the matters Mr O’Sullivan has set out in his last alleged question of law, being question 8 of his request for referral. The key issue framed therein is ‘whether the Company is Mr O’Sullivan’s actual or deemed employer for the purposes of his claim for compensation under the SRC Act in respect of an injury sustained on 26 August 2014’. Even though, as McKerracher J has said, the Company ‘was not the actual employer at the time of the 2014 injury’,[60] the question whether the employment relationship between the Company and Mr O’Sullivan is preserved by operation of s 4(4) remains to be tested at hearing. Mr O’Sullivan’s use of the words ‘deemed’ and ‘definitive’ do not advance the matter.
[60] Ibid, at [25].
I am satisfied that no question of law is raised by the second group of questions
Mr O’Sullivan has posed, and his request for them to be referred to the Federal Court under s 45 of the AAT Act must be refused.
DECISION
Mr O’Sullivan’s requests for referral of alleged questions of law to the Federal Court are refused.
I certify that the preceding 91 (ninety – one) paragraphs are a true copy of the reasons for the decision herein of
Mr S. Webb, Member.........................[sgd].............................................
Associate
Dated: 7 August 2019
Date of hearing:
26 July 2019
Applicant:
Counsel for the Respondent:
Representative for the Respondent:
Self-represented
Mr J. Lenczner
Mr Ben Buckhurst
Solicitors for the Respondent:
Holman Fenwick Willan
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