Re Howarth and Australian Postal Corporation

[2008] AATA 655

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 655

ADMINISTRATIVE APPEALS TRIBUNAL                 )

)No: 2008/1834

General Administrative Division           )

Re: Robert Howarth
Applicant

And: Australian Postal Corporation

Respondent

INTERLOCUTORY DECISION

TRIBUNAL:             J.W. Constance, Senior Member

DATE:                      1 July 2008

PLACE:Canberra      

Decision

1.    The management of this application is transferred from the Canberra Registry of the Tribunal to the Sydney Registry;

2.   until further direction, the parties shall file any further documents in relation to this matter in the Sydney Registry at Level 7, 55 Market Street, Sydney NSW.

…….………[signed]……………
J.W. Constance, Senior Member

CATCHWORDS

COMPENSATION – application for transfer of venue – applicable principles –balance of convenience – the interests of the parties - direction to transfer to Sydney Registry.

Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 39

Federal Court of Australia Act 1976 (Cth) s 48

National Mutual Holdings Pty Ltd and Others v The Sentry Corporation and Another (1988) 19 FCR 155

REASONS FOR DECISION

BACKGROUND

1.        Mr Howarth is seeking a review of a decision of the Australian Postal Corporation denying liability to compensate him for an injury which he says he suffered at work in 2006 whilst he was employed by the Corporation.

2.        An application for review was lodged in the Canberra Registry of the Tribunal on 30 April 2008.  On 20 May 2008 the Corporation advised Mr Howarth and the Tribunal that it sought to have the matter conducted in the Sydney Registry.

3.        Neither the Administrative Appeals Tribunal Act 1975 (Cth) nor the Regulations made under the Act make specific reference to an application for a change of the venue at which a matter is to be conducted.

THE CORPORATION’S ARGUMENT

4.        The Corporation has argued that I should follow the principles applied by the Federal Court in dealing with applications for change of venue.  These were set out by the Full Court in National Mutual Holdings Pty Ltd and Others v The Sentry Corporation and Another.[1]  At page 162 the Court said:

[1] (1988) 19 FCR 155.

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.

Section 48 of the Federal Court of Australia Act 1976 (Cth) provides that the Court may direct a proceeding be conducted at a place specified by the Court.

MR HOWARTH’S ARGUMENT

5. Counsel for Mr Howarth argued that as the Tribunal has no similar statutory provisions the decision of the Federal Court has no application in this matter. He relies on subsection 39(1) of the Administrative Appeals Tribunal Act which relevantly provides:

…the Tribunal shall ensure that every party to the proceeding before the Tribunal is given a reasonable opportunity to present his or her case …

Counsel informed me that Mr Howarth had chosen to apply to the Canberra Registry “for his own reasons” to reduce costs.  He submitted that the Corporation had not shown that it had suffered any prejudice as a result of Mr Howarth’s decision

CONSIDERATION

6.        In my view the principles set out by the Full Court are applicable to this application.  Like the Federal Court this Tribunal has a national character.  As the Full Court observed the provisions of the Federal Court of Australia Act do not fetter the powers of the Court.  Similarly the powers of the Tribunal in relation to applications such as the one before me are unfettered by the Act or the Regulations governing the Tribunal.

7.         I am satisfied that section 33 of the Administrative Appeals Tribunal Act gives power to deal with this application.  Subsection 33(1) provides in part that “the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal”.

8.        The starting point is that the application has been made in the Canberra Registry and whilst there is no onus of proof on the Corporation it is necessary to determine whether there is sound reason to decide that the venue should be changed.

9.        I have concluded that this matter should be transferred to the Sydney Registry.  In reaching this conclusion I have taken into account the following:

·     Mr Howarth resides in Blayney near Orange in regional New South Wales, a city about equidistant from Sydney and Canberra;

·     Mr Howarth has been treated in relation to the claimed injury by Dr Watts (general practitioner) who has his practice near Orange and by Dr Mutton (orthopaedic surgeon) who practices in Orange;

·     the incident giving rise to the claim occurred at the Orange Delivery Centre and the likely lay witnesses reside in the Orange area;

·     Mr Howarth’s solicitors have their office at Parramatta, a city generally regarded as part of the Sydney metropolitan area and more readily accessible to the Sydney Registry than to the Canberra Registry;

·     the offices of the Corporation and those of their solicitors are in Sydney;

·     the Corporation wishes to have Mr Howarth assessed by Sydney specialists for the purpose of these proceedings;

·     the Corporation made this application in relation to venue promptly once the proceedings were commenced;

·     the only connection to Canberra appears to be that Mr Howarth may wish to brief Counsel who lives in Canberra to advise him and to appear at the hearing;

·     at present the Tribunal can conduct this matter in either Registry without disadvantage to either party.

10.      Having taken all of the above considerations into account I have decided that this application can be conducted most suitably in Sydney.  Whilst some of the factors do not point one way or the other I am influenced by the Corporation’s likely medical witnesses being in Sydney and that it will be no more difficult for Mr Howarth’s witnesses to give evidence in Sydney than in Canberra.  I am also influenced by both firms of solicitors being in or near to Sydney.  This may mean that the costs of the application will be less if the matter is conducted in the Sydney Registry.

DIRECTION

11.      The management of this application is transferred from the Canberra Registry of the Tribunal to the Sydney Registry;

12.      until further direction, the parties shall file any further documents in relation to this matter in the Sydney Registry at Level 7, 55 Market Street, Sydney NSW.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W.Constance, Senior Member.

Signed: .…….....................................................................................
  Peter Horobin  
  Associate

Date of Hearing  1 July 2008
Date of Decision  1 July 2008
Counsel for the Applicant             David Richards
Solicitor for the Applicant             Slater & Gordon Inc. Garry Robb and Assoc.
Counsel for the Respondent        Rhonda Henderson
Solicitor for the Respondent       Sparke Helmore