Ranasinghe and Australian Postal Corporation

[2006] AATA 637

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR INTERLOCUTORY DECISION [2006] AATA 637

ADMINISTRATIVE APPEALS TRIBUNAL          № V2005/243
  № V2005/244

GENERAL ADMINISTRATIVE  DIVISION           № V2006/489

Re:           STANLEY RANASINGHE

Applicant

And:AUSTRALIAN POSTAL CORPORATION

Respondent

INTERLOCUTORY DECISION

Tribunal:       Mr Egon Fice, Member

Date:3 July 2006

Place:Melbourne

Decision:The Tribunal directs that the hearing of these matters set down for 4 July 2006 be adjourned to a date to be fixed.  These matters should be listed for a further telephone directions hearing upon lodgement of the s 37 documents for V2006/489.  All three matters should be set down for concurrent hearing after the parties have indicated that matter number V2006/489 is ready for hearing.

(sgd) Egon Fice

Member

Practice and procedure – adjournment of hearing – joinder of further application – unavailability of s 37 documents – duplication of costs

REASONS FOR INTERLOCUTORY DECISION

3 July 2006  Mr Egon Fice, Member

1.      On 24 May 2006 the Tribunal sent notices to the parties’ legal representatives advising them that application numbers V2005/243 and V2005/244 had been listed for hearing on 4 July 2006.  The Tribunal received a letter from Nowicki Carbone and Co, Lawyers, on 29 May 2006 advising that the firm now acted on behalf of Mr Ranasinghe in place of his former lawyers, Slater and Gordon.  The Tribunal sent a copy of the notice of hearing to Nowicki Carbone and Co on 29May 2006.

2.      On 9 June 2006 Nowicki Carbone and Co filed a further application for review of a decision number V2006/489.  The Tribunal linked this application with the earlier applications because they involved the same applicant.  Furthermore, the Tribunal sent hearing notices to both Nowicki Carbone and Co and Australia Postal Corporation on 9 June 2006 in which it was stated that V2006/489 was listed with V2005/243 and V2005/244.  By letter dated 16 June 2006, Ms N. Nicolaou, Senior Executive Lawyer of the Australian Government Solicitor (AGS), advised the Tribunal that AGS also acted for Australia Postal Corporation in V2006/489. 

3.      The Tribunal received a facsimile letter on 30 June 2006 from AGS which advised that V2006/489 was unrelated to V2005/243 and V2005/244; and that it was, in any event, not ready to proceed to hearing on 4 July 2006. 

4.      Upon receipt of the facsimile transmission from AGS on 30 June 2006, the Tribunal made telephone enquiries of each of the parties’ representatives about how these matters should proceed.  Ms Nicolaou indicated that she had not discussed with the applicant’s solicitors the problem of proceeding with V2005/243 and V2005/244 and not V2006/489 (the permanent impairment claim.  She confirmed V2006/489 was not ready to proceed. 

5.      The Tribunal contacted Mr S. Bektas, a solicitor with Nowicki Carbone and Co, to ascertain his opinion regarding a separate hearing for the permanent impairment claim.  Mr Bektas made it clear that he objected to hearing the permanent impairment claim separately because the applicant would be subjected to the additional expense of a second hearing. 

6.      Given the conflicting opinions of the legal representatives of the parties, this matter was set down for a telephone directions hearing at 4:00 pm on Monday, 3 July 2006. 

7.      At the telephone directions hearing, Ms Nicolaou appeared on behalf of AGS and Mr Bektas on behalf of Mr Ranasinghe.  Mr Bektas submitted that the applicant would consent to vacating the hearing date entirely as he was of the opinion that all three matters should be heard concurrently.  He argued that the matters were related as they all arose out of the injuries to Mr Ranasinghe’s right wrist.  He expressed concern about the additional costs which would be incurred by Mr Ranasinghe if the Tribunal proceeded to hear the first two matters as listed and the permanent impairment claim (V2006/489) at a later date.  I was directed to a report prepared by Dr A.L. Kaplan which had been received by the Tribunal immediately prior to the commencement of the telephone directions hearing.  Dr Kaplan’s report, which dealt with Mr Ranasinghe’s depression and associated anxiety rising out his wrist injury, was said to be relevant to all three applications.  Mr Bektas was concerned that if all three matters were not heard concurrently, medical evidence from the same expert witnesses may have to be given on more than one occasion. 

8.      Ms Nicolaou submitted that although the three applications brought by Mr Ranasinghe arose out of the same injury, V2005/243 and V2005/244 were sufficiently discrete as they dealt respectively with the ability of Mr Ranasinghe to increase the number of hours which he was capable of working following his injury and the aggravation of a pre-existing wrist condition.  She submitted that the permanent impairment claim was of a sufficiently different nature to permit that claim to be dealt with at a later date with no detriment to Mr Ranasinghe.  In any event, Ms Nicolaou submitted that the Tribunal could begin the hearing of the first two claims on the following day and then simply adjourn the hearing to a later date when the permanent impairment claim would be ready for hearing.  She said that she expected the s 37 documents in that claim to be filed shortly. 

9.      Mr Bektas objected to commencing the hearing on 4 June 2006 and then adjourning the hearing to a later date in order to enable it to be completed.  He submitted that proposal was unsatisfactory; and that in any event, one of his medical expert witnesses would not be available for the hearing on 4 June 2006. 

CONSIDERATIONS

10.     Because all three applications for review arise out of the same injury, the Tribunal, as is its practice to ensure the most efficient hearing for the parties, linked all three files when V2006/489 (the permanent impairment claim) was lodged on 9 June 2006 and sent hearing notices for the permanent impairment claim to the parties’ legal representatives on that date. 

11.     There was no objection to hearing the permanent impairment claim on 4 July 2006 until a letter was received from AGS on Friday 30 June 2006 at 12:03 pm.  There is no indication that AGS contacted Mr Ranasinghe’s solicitors prior to that date to warn them that the permanent impairment claim would not be ready to proceed on 4 July 2006.  I therefore accept that until Mr Bektas received the facsimile of 30 June 2006, he anticipated that all three matters would be heard on 4 July 2006.

12.     Given the late filing of Dr Kaplan’s medical report, and the fact that the s 37 documents in respect of V2006/489 (the permanent impairment claim) had not been lodged with the Tribunal, it was clear to me that all three matters could not proceed to be heard on 4 July 2006.  Furthermore, I accept that the applicant’s costs are likely to be duplicated if all matters are not heard concurrently.  It is quite likely that Dr Kaplan will need to be called in respect of all matters.  Furthermore, Mr Bektas said that one of his medical experts would not be available on 4 July 2006 and therefore it may not even have been possible to complete the hearing of the first two matters on that day.  While that may be unsatisfactory from the respondent’s viewpoint, my main concern is that the applicant is afforded a fair hearing at minimal cost.  Although I am aware that an adjournment may cause some of the respondent’s cost to be thrown away, as I was informed that the respondent had already briefed counsel, I am of the view that, given the late notice given by AGS to Mr Bektas regarding the state of readiness of the permanent impairment claim, and Mr Bektas’ insistence that all three claims be heard concurrently, the hearing of these matters should be adjourned.  Also, given that there may have been some difficulty in any event in proceeding with the first two claims given the unavailability of one of the applicant’s medical experts, and the duplication and additional costs involved in resuming the hearing of all matters at a later date, it would be unsatisfactory from the applicant’s viewpoint to proceed in that manner.

CONCLUSIONS

13.     I direct that the hearing of these matters set down for 4 July 2006 be adjourned to a date to be fixed.  These matters should be listed for a further telephone directions hearing upon lodgement of the s 37 documents for V2006/489.  All three matters should be set down for concurrent hearing after the parties have indicated that matter number V2006/489 is ready for hearing.

I certify that the thirteen [13] preceding paragraphs are a true copy of the reasons for the decision herein of :

Mr E. Fice, Member

(sgd)     Catherine Lake

Clerk

Date of Directions Hearing:     3 July 2006

Date of Decision:  3 July 2006
Solicitors for the applicant:       Mr S. Bektas, Nowicki Carbone

Solicitors for the respondent:   Ms N. Nicolaou, Australian Government Solicitors