Ross Kennedy and Comcare
[2015] AATA 117
•25 February 2015
[2015] AATA 117
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2012/5878 & 2013/0026
Re
Ross Kennedy
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President PE Hack SC
Date 25 February 2015 Date of written reasons 3 March 2015 Place Canberra The application to adjourn the preliminary hearing set down for 3 March 2015 is refused.
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Deputy President PE Hack SC
PRACTICE & PROCEDURE – proceedings – application for adjournment of preliminary hearing – Applicant given sufficient opportunity to prepare case – Tribunal must use resources efficiently – proceedings to be dealt with in a way that is fair, just, economical, informal and quick – application refused
REASONS FOR DECISION
Deputy President PE Hack SC
3 March 2015
On 25 February 2015 I heard, and refused, an application by Mr Ross Kennedy to adjourn a hearing listed to commence today and said that I would provide my reasons for refusing the request at a later date. What follows are those reasons.
Mr Kennedy was, at material times, employed by the Commonwealth, apparently within the Department of Industry, Innovation, Science, Research and Tertiary Education. In March 2012 he made claims for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (the Act) for a condition he described as adjustment disorder with depression and anxiety, first experienced in March/April 2011 and experienced again in November 2011.
His claims were refused by Comcare by determinations made in July 2012. The decisions to refuse were affirmed on reconsideration by reviewable decisions made on 21 November 2012. Mr Kennedy has sought a review by the Tribunal of those reviewable decisions.
It is material to note that Comcare’s case, as articulated in its Amended Statement of Facts, Issues and Contentions of 10 February 2015, is that Mr Kennedy’s condition does not satisfy the definition of injury in s 5A of the SRC Act however I need not examine that aspect of the case. Comcare also resists the claims on the basis that, by operation of s 7(7) of the SRC Act, Mr Kennedy’s condition is deemed not to be an injury. That is so, on Comcare’s case, because it alleged that Mr Kennedy made wilful and false representations that he did not suffer, or had not previously suffered from that condition.
On 3 February 2015 the Tribunal, constituted by Senior Member McCabe and on the application of Comcare, directed that a preliminary hearing be listed to deal separately with the question of the application of s 7(7) of the SRC Act. Senior Member McCabe provided reasons for making that direction on 5 February 2015.
Subsequently the matter was listed for hearing before me on 3 March 2015. By letter dated 17 February 2015 Mr Kennedy applied to adjourn the hearing scheduled for today. As I have said, on 25 February 2015, after hearing from Mr Kennedy and from Comcare, I refused that application.
Mr Kennedy’s application for an adjournment was set out in his letter to the Tribunal of 17 February 2015. He set out 11 “Grounds”. Some of them may be disposed of shortly.
Grounds 6, 7, 8, 9, 10 and 11 articulate various criticisms that Mr Kennedy makes of Senior Member McCabe’s reasons for directing that the s 7(7) issue be dealt with as a preliminary issue. Mr Kennedy’s submissions do not make clear, nor was he able to explain in the hearing of his application for adjournment, how those matters were relevant to the question of an adjournment. The Tribunal does not sit on “appeal” from the decisions of other members; that is the task of the Federal Court of Australia, it is to that Court that Mr Kennedy should take his complaints about Senior Member McCabe’s decision if he be so inclined.
Ground 5 asserted that I was “out of touch” for having listed a directions hearing on less than 24 hours’ notice. The matter was listed to deal with a complaint by Mr Kennedy in an email the Tribunal of 9 February 2015 about the time for Mr Kennedy to provide a submission for the hearing of the s 7(7) argument. Mr Kennedy was not able to be contacted at 9am on 11 February 2015 when the telephone directions hearing was scheduled. In the result, I made directions that required Comcare to lodge and serve an outline of its submissions by 4pm on 18 February 2015 and for Mr Kennedy to lodge and serve his submissions by 1pm on 27 February 2015.
Mr Kennedy did not explain how the circumstances of this directions hearing touched on the question of the adjournment, nor did he request any variation to the directions made despite requesting the directions hearing to be re-heard.
There were, in reality, four aspects of Mr Kennedy’s argument that warranted consideration:
·The fact of other proceedings on foot in the Federal Court;
·Mr Kennedy’s need to prepare submissions requesting reconsideration by Comcare of its decision to refuse a further claim made by Mr Kennedy;
·Mr Kennedy’s state of health; and
·Mr Kennedy’s work and travel commitments.
In proceedings in the Federal Court (ACD 43/2014) Mr Kennedy is claiming relief under s 39B of the Judiciary Act 1903 (Cth) against the Commonwealth and the Fair Work Commission over the termination in July 2012 of Mr Kennedy’s employment by the Commonwealth. At the time of the hearing before Senior Member McCabe, Mr Kennedy was required by an order of Jagot J to file and serve his evidence and submissions by 13 February 2015. At that time the hearing of Mr Kennedy’s claim had been listed on 24 March 2015. Subsequently on 13 February 2015 Buchanan J extended to 31 March 2015 the deadline for Mr Kennedy to file and serve his evidence and submissions, vacated the 24 March 2015 hearing date and listed the hearing on 2 July 2015.
Given the change made to the directions in the Federal Court proceedings I am unable to see how those proceedings could conceivably impact on Mr Kennedy’s capacity to prepare for these proceedings. On 3 February 2015 Senior Member McCabe directed that the matter be listed for hearing in early March 2015. Subsequently the matter was listed for 3 March 2014. On 13 February 2015, the day on which material was due to be filed by Mr Kennedy in the Federal Court proceedings, he was given a further period of some six weeks to prepare and file his material in those proceedings. Mr Kennedy has had some four weeks to prepare for this hearing.
The position with Mr Kennedy’s latest claim for compensation remains unclear. His letter of 17 February 2015 refers to a decision made on 11 December 2014. It presumably came to Mr Kennedy’s notice within a few days of that date. Section 62(3) of the SRC Act allows a period of 30 days within which reconsideration may be sought, although that period may be extended. Absent an extension, the ordinary time to seek reconsideration has elapsed. Mr Kennedy seemed to suggest that he had sought an extension of time (but did not say to when he had sought that extension) but that Comcare had not responded to his request by either agreeing to or refusing the request. He plans to meet with representatives of Comcare to discuss his request for reconsideration.
I am unable to discern, from what Mr Kennedy has told me of this aspect of the matter, that the need to prepare a submission on reconsideration to Comcare could or would affect his capacity to prepare for the hearing on 3 March 2015.
Mr Kennedy’s Ground 3 relied upon his medical condition, explained in his letter as “a background of depression from distress” as well as other matters including the “Tribunal’s duty-of-care as a ‘model-litigant’” and the “distress” of his involvement in the Federal Court proceedings. The notion of the Tribunal being subject to the model litigant rules is plainly misconceived. It need not be further considered.
It may be accepted that these proceedings and the Federal Court proceedings place a burden on Mr Kennedy but there is no evidence that his medical condition prevents him from comprehending the matters in issue in the s 7(7) hearing. On the contrary his letter to the Tribunal of 17 February 2015, which extends over six pages, demonstrates that Mr Kennedy is obviously intelligent, able to undertake research and put forward a reasoned argument.
Mr Kennedy referred to the demands on his time of his work and the need to travel to his work but neither his letter nor his oral argument descended into detail of his hours of work or why he was prevented from preparing his case.
Finally, Mr Kennedy referred at the hearing, (but not in his letter) to heaving recently spoken to a lawyer who had agreed to “look at” his case. He did not provide any time frame within which this might happen. I am unable to have any confidence that Mr Kennedy might soon be represented in these proceedings by a lawyer.
These proceedings were commenced as long ago as December 2012. It is not necessary to determine whether that delay is attributable to one or other or both of the parties. It is enough to say that the matter has been in the Tribunal far longer that would ordinarily be expected. The matters in issue, beyond the s 7(7) point, concern interaction between Mr Kennedy and others in his workplace, quintessentially matters where the reliability of the recollections of the parties will be crucial. Such matters ought be dealt with promptly before recollections fade. Moreover the cases recognize the importance of courts and tribunals ensuring that their resources are used efficiently. To adjourn the matter would be a waste of public resources. Additionally, it will cause a prejudice to the respondent, by way of costs thrown away, that cannot be compensated.
In his reasons, Senior Member McCabe referred to the Tribunal’s statutory obligation to deal with proceedings in a way that is “fair, just, economical, informal and quick” and concluded that holding the preliminary hearing in early March 2015 was the best way of achieving those objectives. Nothing put forward by Mr Kennedy justified adjourning the preliminary hearing with the result that I refused his application for adjournment.
I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC
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Associate
Dated 3 March 2015
Date of hearing 25 February 2015 Applicant In person Counsel for the Respondent Mr M Gollan Solicitors for the Respondent Comcare
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