Ross Kennedy and Comcare
[2015] AATA 132
•3 March 2015
[2015] AATA 132
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5878
Re
Ross Kennedy
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Date 3 March 2015 Date of written reasons 9 March 2015 Place Canberra The application for an adjournment is refused.
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Deputy President P E Hack SC
CATCHWORDS
PRACTICE & PROCEDURE – application for adjournment of preliminary hearing – six further grounds – vagueness of evidence – prospect of legal representation – capacity to prepare for hearing – adjournment not warranted – application refused
REASONS FOR DECISION
Deputy President P E Hack SC
9 March 2015
This is a further application by the applicant to adjourn the interlocutory hearing set down to today. The background to the matter is set out in reasons that I published today for refusing on 25 February 2015 to adjourn the hearing. Since that time, Mr Kennedy has provided six further communications for which he asserts that the hearing cannot proceed.
The first, Exhibit 1 in the proceedings, is a letter of 27 February 2015 in which Mr Kennedy sets out a number of grounds. The first ground is the unavailability of his clinical psychologist, Ms Carmel O’Sullivan, who, it is said, is not available to attend the hearing today and would need six weeks’ notice. Mr Kennedy was, with respect, somewhat vague about the evidence that he anticipated Ms O’Sullivan would give. As best as I could understand it, he was anticipating that she would talk about his condition and some of his responses to the psychiatrist, Dr Zoltan Zsadanyi. As at present advised, I have difficulty in seeing how that evidence could be relevant, even on an adjectival basis. I am, however, prepared to revisit the issue of the relevance of her evidence if and when the need arises.
The second ground is that the Tribunal did not inform Mr Kennedy how the Tribunal would be constituted for the purposes of this hearing. In fact, Mr Kennedy was notified by an email of 9 February 2015 that I would be conducting the hearing, but he says it was not on the listing notice and he overlooked that detail. In any event, I find it impossible to consider how lack of knowledge of the identity of the person constituting the hearing could possibly affect his capacity to prepare for the hearing.
Ground 3 concerns some observations made by counsel for the respondent, Comcare, in the directions hearing. Mr Kennedy’s letter and his submissions do not explain how that is relevant or could warrant an adjournment.
In his fourth ground, Mr Kennedy asserts that there is inequality before the law because the respondent is represented by “a high-profile, highly expert barrister and legal practitioner”. Whether that is true or not of Mr Gollan remains to be seen. But it will often be the case that unrepresented parties will be opposed by a barrister. It will be the task of the Tribunal to make sure that Mr Gollan does not oppress or otherwise importune Mr Kennedy. And it will be my task to ensure that, as best I can, Mr Kennedy has a hearing that is fair.
The particular emphasis of Mr Kennedy’s oral submissions today focused on letters from general practitioners, one from Dr Donald Bradfield from the Queanbeyan GP Super Clinic of 28 February 2015, in which Dr Bradfield speaks of having examined Mr Kennedy that day, noting that Mr Kennedy was:
…currently reporting anxiety and stress issues in regard to complex legal problems. I understand he is due to have a hearing next week but does not currently have legal representation, which is aggravating his present stress, and suggest that he be allowed a deferment to enable him to obtain representation.[emphasis added]
Mr Kennedy saw another doctor, Dr Matthew, yesterday, 2 March. Dr Matthew reported:
In my medical opinion, he would benefit from a deferment of this court date. I understand you have agreed to discuss this possibility tomorrow itself at the outset of the hearing. However, Mr Kennedy reports significant anxiety and stress at the thought of having to even present tomorrow for this discussion. In light of these symptoms/current conditions, I would request that the case be deferred until he has a chance to procure legal representation.[emphasis added]
The prospect of obtaining legal representation has its genesis in an email sent by Mr Kennedy to Mr Mrsic, a solicitor with the firm Turner Freeman, and a communication from Mr Kennedy to Mr Mrsic of 23 February 2015 when Mr Mrsic was provided with the three volumes of section 37 documents. He responded the following day, 24 February, saying:
There is a massive amount of material to look at. I just won't have time to look at it this week. I will have some time to review it towards the end of next week.
That exchange gives me no confidence as to when or if Mr Kennedy might be represented in these proceedings. At the matter on 3 February 2015, Senior Member McCabe directed that the matter be listed for preliminary hearing and spoke of that being listed in early March. It seemingly took Mr Kennedy until 23 February to make contact with Mr Mrsic. In those circumstances, I cannot have any confidence that the attempt to engage Mr Mrsic was other than a ploy on the part of Mr Kennedy.
The fact remains that Mr Kennedy is an applicant in proceedings in the Federal Court; that at his request the hearing date of those proceedings has been adjourned until early July; and the time for Mr Kennedy to comply with the court’s directions to lodge material was extended until the end of this month.
He has, as well, the issue of reconsideration of the third decision of Comcare. He has sought, and at least not been refused, additional time to lodge that request for reconsideration, and at the moment is waiting to hear from Comcare in response to his request for an additional 120 days. He has told me that Comcare has finally agreed to meet him to discuss the reconsideration and he is meeting, he says, a representative of Comcare on Thursday of this week, but that cannot have interfered with his capacity to prepare for the hearing.
In response to the submissions of Mr Gollan, Mr Kennedy raised for the first time the presence of what he described as stay proceedings in the Fair Work Commission. It appears that at the conclusion of the proceedings in the Fair Work Commission, the respondent to those proceedings sought an order for costs against Mr Kennedy and Mr Kennedy cross-claimed. Those matters have been stayed pending the outcome of the Federal Court proceedings and, in those circumstances, they cannot possibly distract Mr Kennedy from these matters.
As I observed in my earlier reasons, these proceedings have been on foot considerably longer than the Tribunal expects proceedings of this nature. If the matter ultimately needs to go to a full hearing, it concerns the interplay between Mr Kennedy and others in his workplace, a matter where quintessentially recollections will be in issue. I am not satisfied that any of the matters advanced by Mr Kennedy warrant the adjournment of the hearing. I refuse the application.
I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC .......................[Sgd].............................
Associate
Dated 9 March 2015
Date of hearing 3 March 2015 Applicant In person Counsel for the Respondent Mr M Gollan Solicitors for the Respondent Comcare
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