Quentin Cook and Australian Postal Corporation
[2009] AATA 946
•9 December 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 946
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3812
General ADMINISTRATIVE DIVISION ) Re Quentin Cook Applicant
And
Australian Postal Corporation
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member Date9 December 2009
PlaceCanberra
Decision Pursuant to section 33(2) of the Administrative Appeals Tribunal Act 1975 the Tribunal directs:
1. the management of Mr Cook’s application is transferred from the Canberra registry to the Sydney registry of the Tribunal; and2. any further documents in these proceedings are to be filed in the Sydney registry of the Tribunal.
......................[sgd].........................
Professor RM Creyke, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE - transfer of an application between registries of the Tribunal - relevant factors - balance of convenience - interests of parties, efficient administration - justice - application to be transferred to the Sydney registry
Administrative Appeals Tribunal Act 1975 s 33
Federal Court of Australia Act 1976 s 48
National Mutual Holdings Pty Ltd and Ors v The Sentry Corporation and Anor (1998) 19 FCR 155
McDonald v Director-General of Social Security (1984) 1 FCR 354
Re Howarth and Australian Postal Corporation [2008] AATA 655
Re Roxas and Comcare [2009] AATA 867
Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245
REASONS FOR DECISION
9 December 2009 Professor RM Creyke, Senior Member 1. Mr Cook is seeking review of a decision by the Australian Postal Corporation. That decision was to deny liability to compensate him under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) for an injury in respect of Mr Cook’s right elbow.
2. By letter dated 7 September 2009, the Australian Postal Corporation requested that the matter be transferred from the Canberra registry to the Sydney registry of the Administrative Appeals Tribunal (Tribunal). A preliminary conference was held on 19 October 2009, but no further action has been taken in this matter.
3. The request was considered at a directions hearing in person on 20 November 2009.
Law
4. The principles on which both parties relied are found in a decision of the Full Court of the Federal Court in National Mutual Holdings Pty Ltd and Ors v The Sentry Corporation and Anor (National Mutual Holdings).[1] Although those principles relate to section 48 of the Federal Court of Australia Act 1976 (Cth) which gives the Court a discretion as to choice of the venue for proceedings the principles are useful for the Tribunal. The Administrative Appeals Tribunal Act 1975 (Cth) contains no equivalent provision to section 48. Nonetheless, section 33 of the Administrative Appeals Tribunal Act 1975 (Cth) provides that the procedure of the Tribunal is within its discretion.
[1] National Mutual Holdings Pty Ltd and Ors v The Sentry Corporation and Anor (1988) 19 FCR 155 at 162.
5. The principles in National Mutual Holdings take into account the fact that the Federal Court is a national body. This factor is equally applicable to the Tribunal which is also a national body with registries in each of the state capitals and in Canberra. There is also no onus of proof on either party, as is the case under section 48 in relation to the Federal Court.[2] These features mean the Tribunal is in a similar position to the Federal Court in relation to the exercise of the discretion as to where proceedings are to be held.[3]
[2] McDonald v Director-General of Social Security (1984) 1 FCR 354.
[3] Re Howarth and Australian Postal Corporation [2008] AATA 655 at [6]-[7]; Re Roxas andComcare [2009] AATA 867 at [11].
6. The principles stated in National Mutual Holdings are as follows:[4]
The power conferred on the Court or a judge by s 48 is in terms wholly unfettered. It should be exercised flexibly having regard to the circumstances of the particular case. It would be regrettable and unwise if the Court were to circumscribe the general power conferred by s 48 with inflexible rules or impose inelastic constraints upon its exercise. As the power may be exercised subject to conditions, the Court or a judge is in a position to mould orders under the section to take account of the many and varied circumstances that arise in particular cases.
The power conferred by s 48 recognises the national character of this Court. The factors which the Court is entitled to take into account in considering whether one city is more appropriate than another for interlocutory hearings or for the trial itself are numerous. The Court must weigh those factors in each case. Residence of parties and of witnesses, expense to parties, the place where the cause of action arose and the convenience of the Court itself are some of the factors that may be relevant in particular circumstances.
The balance of convenience will generally be a relevant consideration, but not necessarily determinative of each case. …
There is no onus of proof in the strict sense to be discharged by the party seeking to conduct or continue the proceedings elsewhere. …
The Court must, however, be satisfied, after considering all relevant matters, that there is sound reason to direct that the proceeding be conducted or continued elsewhere. Its starting point is that the proceeding has been commenced at a particular place. Why should it be changed? …
The balance of convenience is important, but its weight must vary from case to case. Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely.
[4] National Mutual Holdings Pty Ltd and Ors v The Sentry Corporation and Anor (1988) 19 FCR 155 at 162.
Mr Cook’s argument
7. In his submission to the Tribunal that the matter should remain with the Canberra Registry, Mr Cook said:[5]
·he had engaged a particular firm of solicitors because of ‘their expertise and experience in handling Commonwealth compensation matters’, and the solicitor for that firm who specialises in Commonwealth workers’ compensation matters was located in Canberra;
·he wished to retain that solicitor because the solicitor was familiar with his file and he was happy with the representation he was receiving from him;
·if the matter was to be transferred to the Sydney registry of the Tribunal, he would wish that solicitor to be retained, which would mean that solicitor would need to travel to Sydney for conferences and any hearing;
·the travel of his solicitor would add to his costs, especially if the solicitor had to stay overnight in Sydney;
·from his home in Woodford, New South Wales, it takes Mr Cook two hours to drive to the Sydney registry, and only three hours to the Canberra registry, so the travel time to either registry was little different. He would have overnight accommodation costs if he needed to stay overnight in Canberra;
·he has retained a counsel who is located in Canberra, and if the matter is transferred to Sydney, counsel’s travel and, if necessary, accommodation costs would be an additional cost; and
·he was concerned that the additional costs to him for both a solicitor and counsel to represent him in Sydney would not be recovered on a party/party basis if he was successful, and he could, therefore incur those additional costs on a solicitor/client basis.
[5] Exhibit A1.
Australian Postal Corporation’s argument
8. Counsel for the Australian Postal Corporation argued:
· the applicant’s home is closer to Sydney than to Canberra;
· that the time it would take Mr Cook to travel by car from his home in New South Wales to Canberra as compared with his travel time to Sydney was neither proved nor conceded;
· Mr Cook’s workplace and any witnesses to the events which caused his injury were located at Penrith, New South Wales, which is closer to Sydney than to Canberra;
· Mr Cook’s medical practitioner was located at an Emu Plains Medical Practice in New South Wales which is also closer to Sydney than to Canberra;
· the premises of the medical practitioner, Dr Gill, who examined Mr Cook for the Australian Postal Corporation, is located in Sydney;
· if another medical examination is required, it would probably be conducted by a Sydney-based medical practitioner; and
· the headquarters of Mr Cook’s firm of solicitors is located in Sydney.
Evidence
9. Counsel for the Australian Postal Corporation noted the similarity of the circumstances in Mr Cook’s case to those in the recent decision in Re Roxas and Comcare,[6] a matter which the Tribunal found should be transferred from the Canberra registry to the Sydney registry.
[6] Re Roxas and Comcare [2009] AATA 867.
10. The counsel also pointed out that at least one witness from Mr Cook’s workplace would be called by the respondent, but there may be another or others. Given the practical importance of settling early in the proceedings which registry is to manage the matter, it was premature to determine whether other witnesses would be called by the respondent.
11. The counsel objected to the argument in paragraph 5 of Mr Cook’s submission that ‘none of the solicitors in the other offices of [the firm of solicitors employed by Mr Cook] handle Commonwealth compensation matters’. Counsel for the Australian Postal Corporation submitted a copy[7] of the firm’s website entry which lists its areas of expertise as including:
· Negligence and Compensation claims;
· Insurance disputes and denied claims;
· Workplace or job related claims;
· All compensation claims; and
· Comcare claims
and pointed out that the information obtained from the internet gives no indication that expertise in some or all of these matters is confined to its Canberra office.
[7] Exhibit R1.
12. The counsel also argued there was no evidence on which to base Mr Cook’s statement as to costs. As counsel pointed out there appears to be an advertisement on the website of the firm of solicitors being used by Mr Cook which promises ‘No Win, No Fee’. This suggests that if Mr Cook is unsuccessful he would not be faced with some, at least, of the potential legal costs. In addition, counsel noted that the Australian Postal Corporation commonly used in-house solicitors as instructing solicitors. Hence this may reduce the costs if the matter was moved to Sydney.
13. As for medical costs, the Australian Postal Corporation would be likely to use Sydney based medical practitioners which would favour relocation to the Sydney registry.
14. At the hearing, counsel for Mr Cook called as a witness, the solicitor in the firm’s Canberra office who has carriage of the matter. He gave evidence that at present he had about sixty matters on hand under the Act. He said that all Commonwealth compensation matters are managed from the Canberra office of the firm. Of the sixty or so compensation matters he was handling, some forty were being handled by the firm before he joined. Since joining the firm he had taken over these files. He also advised that it was the firm’s management which had decreed that all Commonwealth compensation matters would be handled by the Canberra office of the firm.
15. The solicitor told the Tribunal that if the matter was transferred to Sydney, he would fly to Sydney and, if the matter exceeded one day, he would need accommodation in Sydney. He also confirmed that if the matter was successful, the applicant would pay the costs of that travel and accommodation. These amounts would not be covered by party/party costs.
16. The solicitor confirmed that he had not yet spoken with Mr Cook, but he assumed that another member of the firm had interviewed him by telephone. He explained that Mr Cook retained the firm of solicitors prior to him joining the firm, which had only occurred in June 2009.
17. He confirmed that he had participated in person in preliminary conference procedures of the Tribunal in Canberra and that he would go to Sydney for a conference of this kind, should it be necessary. He agreed, however, that there would be no overnight accommodation costs for such a procedure.
18. Counsel for Mr Cook argued that if the matter was transferred to the Sydney registry of the Tribunal, and Mr Cook chose to employ another firm of solicitors in Sydney, Mr Cook would be faced with a significant increase in his estimated costs given the need to acquaint the firm with the details of the matter and the generally higher costs of legal services in Sydney.
19. The counsel also asserted that the practice in the Sydney registry of the Tribunal was to call all medical witnesses in person, while in the Canberra registry the practice is to take such evidence by telephone. He pointed out that the Sydney practice clearly had cost implications for Mr Cook. The assertion as to the practice in Sydney was contested by counsel for the Australian Postal Corporation and counsel for Mr Cook conceded that calling medical witnesses in person was not the invariable practice in Sydney, although it was common.
Consideration
20. The relevant factors in this case largely coincide with those identified in National Mutual Holdings, namely, the location of the parties and potential witnesses; the location of the incident or incidents relevant to the injury suffered by Mr Cook; the expense to the parties, particularly the medical and legal expenses; and the convenience to the parties of choice of registry of the Tribunal, given the offices of the legal practitioners and corporation involved.
Location of parties
21. The home address of Mr Cook, namely, 9 Lumeah Road, Woodford in New South Wales, is geographically considerably closer to Sydney than to Canberra. However, Mr Cook’s evidence is that the time it takes him to drive to Canberra is only one hour longer than it would take him to get to the Sydney registry of the Tribunal. Although this evidence is untested and was disputed by counsel for the Australian Postal Corporation, nonetheless, the Tribunal is able to take notice of notorious facts.[8] Such a notorious fact is the density of traffic in Sydney and its environs, as compared to travel through the hinterland of New South Wales to Canberra. On that basis, the Tribunal finds that the difference in travel time for Mr Cook is not likely to reflect the respective differences in distance between Woodford and Sydney as compared with Woodford and Canberra. Nonetheless, since there is a small travel time advantage to Mr Cook in travelling to Sydney, and although the headquarters of the Australian Postal Corporation are in Melbourne, its legal representatives are Sydney-based, on balance the location of the parties slightly favours Sydney over Canberra.
Location of potential witnesses
[8] Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245.
22. Mr Cook has been a postal delivery officer based at the Nepean Delivery Centre, Penrith since 1978. Until January 2009, he was delivering mail in the area using a motor cycle, but after that date he has been using a trolley. At this early stage of the matter, it is not clear who will be a witness to the events which are at issue or how many witnesses are likely to be called by either party. The Australian Postal Corporation has indicated its intention to call at least one witness from the Nepean Delivery Centre where Mr Cook works. If evidence as to the conditions in the locations in which the events arose is needed, other witnesses from the Centre may also be called. Those witnesses, since they work in the region, are more likely to reside closer to Penrith, and therefore Sydney, than to Canberra and the balance of convenience and witness’s costs in relation to this factor favour relocation of the matter to Sydney.
Medical and legal expenses
23. Medical expenses. Counsel for Mr Cook initially asserted that the practices of the Canberra registry differed from that in the Sydney registry because in Sydney medical witnesses were called in person, whereas in Canberra the practice was to hear medical evidence by telephone. If this had been the case, there would be cost implications, not least because of the additional travel time in Sydney for medical practitioners. This assertion was modified at the hearing, and it was conceded that, in Sydney, the attendance of medical witnesses in person or by phone varied according to availability. On that basis, the argument that there would necessarily be additional medical costs if the matter was moved to the Sydney registry is speculative and was not pressed at the hearing.
24. Medical evidence for the purposes of Mr Cook’s claim has been provided from the Emu Plains Medical Practice, New South Wales, which Mr Cook attends. The Emu Plains Medical Practice is located closer to Sydney than to Canberra. Should any of the medical practitioners from that Practice be called as a witness, it is not known at this time whether their evidence would be provided by telephone or if they would be called in person. On that basis, the costs of such attendance are hypothetical. However, the practices of either the Canberra or the Sydney registries would not preclude obtaining that evidence by telephone. Assuming telephone evidence was obtained, the location of these medical witnesses and their attendance costs would be the same whether the matter was heard in Sydney or in Canberra. If attendance of those medical practitioners in person in Sydney was required, there would be an increased cost. This factor would slightly favour Canberra as the location, assuming the medical evidence there was heard by telephone, but at this stage, this is speculative.
25. The medical practitioner who examined Mr Cook for the Australian Postal Corporation, Dr Gill, is located in Sydney. If Dr Gill is called to give evidence, it is again unclear whether his evidence would be provided in person or by telephone. If by telephone, the location of Dr Gill’s practice is cost-neutral. If the hearing is in Sydney, and Dr Gill is called in person, there would be an additional cost in Dr Gill’s travelling time as well as his time for attendance at the hearing, again assuming that Dr Gill’s evidence could be provided by telephone if the hearing was in Canberra. This factor also would weigh slightly in favour of the hearing being in Canberra.
26. Legal expenses. If the matter is heard in Canberra, assuming that in-house solicitors of the Australian Postal Corporation based in Sydney continue to brief counsel, who is Sydney-based, costs will be incurred for travel to Canberra and possible accommodation costs of both a solicitor and counsel. Alternatively, if the matter is heard in Sydney, and Mr Cook retains the Canberra solicitor and counsel, both of whom are Canberra-based, their travel to Sydney and possibly accommodation costs there would equally be incurred.
27. The Tribunal accepts the evidence of the solicitor for Mr Cook that he is the expert on Commonwealth compensation matters for the firm. In that case, the Tribunal finds that it is reasonable that Mr Cook should continue to employ the Canberra-based expert of the firm in a compensation matter. The Tribunal also accepts the statement of Mr Cook in his submission that he is happy with the representation provided by the firm, despite the solicitor’s evidence that, at this stage, he had not spoken in person to Mr Cook. Mr Cook would be required to meet the travel costs if the matter is relocated to Sydney and he retains his legal team since they are not covered on a party/party basis
28. Despite the information on the internet that the firm of solicitors operates on a ‘No Win, No Fee’ basis, the evidence on this issue was not sufficiently firm to satisfy the Tribunal that this would necessarily be of benefit to Mr Cook.
29. Bringing the issue to the Tribunal at this early stage of the proceedings has the advantage that few steps in the Tribunal’s processes have yet been undertaken. On that basis a change of location at this stage should not greatly inconvenience either party.
30. In summary, the Tribunal finds that the preponderance of the factors favours moving the matter to the Sydney registry. The location of the applicant, the legal representatives of the respondent, the location of any witnesses, especially if issues of credit are relevant and the witnesses are to appear in person, favour the Sydney registry. The Penrith area is geographically closer to Sydney than to Canberra, the travel time to Sydney by car for the applicant is, marginally less than to Canberra, and the cost is certainly considerably less, if air fares are involved. The location of medical witnesses, located either in the Penrith region, or in Sydney, is cost-neutral if their evidence is taken by telephone. If their evidence is provided in person, this favours the Sydney registry. So although for Mr Cook, there is an additional cost in having his legal team go to Sydney for any hearings in the matter, this is outweighed by the convenience and lower costs of having the medical and other witnesses appear in Sydney.
31. The management of Mr Cook’s application should be transferred from the Canberra registry to the Sydney registry of the Tribunal. Any further documents in these proceedings are to be filed in the Sydney registry of the Tribunal.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Professor R Creyke, Senior Member.
Signed: ...........................................................
J. Lakin, AssociateDate of Hearing 20 November 2009
Date of Decision 9 December 2009
Solicitor for the Applicant Brydens Law Office
Counsel for the Applicant Mr David Richards
Solicitor for the Respondent Australian Postal Corporation
Counsel for the Respondent Ms Rhonda Henderson
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