Roxas and Comcare
[2009] AATA 867
•10 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 867
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3880
GENERAL ADMINISTRATIVE DIVISION ) Re MARIA ROXAS Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date10 November 2009
PlaceCanberra
Decision Having heard the parties, pursuant to subsection 33(2) of the Administrative Appeals Tribunal Act 1975 the Tribunal directs:
1. the management of Ms Roxas’ 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].......................
Mr S. Webb, 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 ss 33, 37
National Mutual Holdings Pty Ltd and Ors v The Sentry Corporation and Anor (1998) 19 FCR 155
Re Howarth and Australian Postal Corporation [2008] AATA 655
Re Estate of Eduardo Ferro and Australian Postal Corporation [2009] AATA 174
REASONS FOR DECISION
10 November 2009 Mr S. Webb, Member 1. Maria Roxas lives and works in Sydney. She lodged a claim for compensation in relation to an alleged work-related injury. Her legal representatives filed an application for review of a Comcare decision concerning that claim in the Canberra registry of the Administrative Appeals Tribunal (the Tribunal). Comcare applied for the application to be transferred to the Sydney registry. This application was opposed by Ms Roxas.
2. That issue now rises for determination.
3. The history of the matter can briefly be stated. On 22 October 2008 Ms Roxas lodged a claim for compensation in relation to an injury that was alleged to have occurred on 25 September 2008.[1] On 16 February 2009 Comcare determined to reject the claim.[2] On 13 March 2009 Ms Roxas requested reconsideration of that determination.[3] On 12 June 2009 a Comcare delegate decided to affirm the determination.[4] On 18 August 2009 Mr Paul Robertson, Canberra manager of Brydens Law Office (Brydens Compensation Lawyers – ‘Brydens’), lodged an application for review of that decision in the Canberra registry of the Tribunal.[5] On 19 August 2009 Brydens lodged an application for an extension of time in which to make the application. On 8 September 2009 the extension of time was granted. On that day a telephone preliminary conference was listed for 27 October 2009. On 6 October 2009 copies of ‘T-documents’ were filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. On 19 October 2009 Comcare’s solicitors, Dibbs Barker, made a written request for the application to be transferred to the Sydney registry of the Tribunal. On 20 October 2009 Brydens notified the Tribunal that Ms Roxas opposed Comcare’s application for transfer. The matter was set down for determination at a telephone directions hearing before me on 26 October 2009. At the directions hearing Mr Robertson informed me that he was not ready to proceed as he intended to brief counsel. The matter was held over to 5 November 2009. On 4 November 2009 Mr Robertson filed by facsimile a statement by Ms Roxas. On resumption of the directions hearing, Mr David Richards of counsel appeared for Ms Roxas.
[1] T6b folio 15.
[2] T26.
[3] T28.
[4] T40.
[5] T2.
4. The relevant contextual facts are as follows:
(a)Ms Roxas resides at Minchinbury (in Sydney), New South Wales.
(b)She is employed by the Australian Customs Service at the Kingsford Smith Airport in Sydney.
(c)The alleged injury is said to have occurred at her place of employment in Sydney.
(d)The alleged injury is said to be either a recurrence or an aggravation of a previously accepted work-injury that occurred in August 1999.
(e)Ms Roxas has obtained medical treatment for her accepted and recently claimed injuries from doctors at the St George Medical Practice and physiotherapists in Sydney.
(f)She has been examined for medico-legal purposes at Comcare’s request by Dr Donald Jones, an orthopaedic surgeon, who practices in Sydney. I understand that a supplementary report may be obtained from Dr Jones, but this could be completed on the papers without further examination of Ms Roxas.
(g)Ms Roxas has retained Brydens to represent and advise her. Brydens have offices in Canberra and Sydney.
(h)Comcare has retained Dibbs Barker to represent it in these proceedings. Dibbs Barker have offices in Canberra and Sydney.
(i)Ms Roxas says that:
(i)“the solicitor specialising in Comcare worker’s compensation matters and the Comcare section of Brydens is located in the Canberra office”;[6]
(ii)“none of the solicitors in the other offices of Brydens handle Comcare matters and Paul Robertson is the expert”.[7]
[6] Statement by Maria Roxas, 4 November 2009 at [2].
[7] Statement by Maria Roxas, 4 November 2009 at [4].
5. Mr Richards informed me that Ms Roxas wants her application to remain in the Canberra registry as Mr Robertson is familiar with her file and she is happy with his representation – she trusts him and she does not want to change lawyers or law firms. As I understand it, she asserts that she will incur increased costs if the matter is transferred to Sydney. Based on her statement, it appears that the increased costs relate to travel costs for Mr Robertson if he is required to travel to Sydney to represent her. Ms Roxas states that “the reasons I want my matter to remain in Canberra is because it will be very difficult financially for me to continue with my claim if the matter is transferred to Sydney and I incur increased legal expenses as a result”.[8] Mr Richards informed me that he has no instructions concerning the basis for this assertion. He also noted, in clarification of paragraph six of Ms Roxas’ statement, that he has only an ‘in principle’ agreement to represent Ms Roxas at any substantive hearing of her matter, and this can be done in either Canberra or Sydney. In his submission, there is a substantial difference in the cost of a retained solicitor such as Mr Robertson travelling to Sydney and the cost of an applicant such as Ms Roxas travelling to Canberra by bus and staying with friends.
[8] Statement by Maria Roxas, 4 November 2009 at [7].
6. Mr Richards informed me that he was instructed that Ms Roxas will be examined for medico-legal purposes in Canberra, but no arrangement or appointment has yet been made. Mr Robertson did not appear to give evidence or to address the Tribunal. Thus, there is no evidence concerning the arrangements for Brydens’ representation of Ms Roxas, including costs.
7. In Mr Richards’ submission there would be no adverse effect on the Respondent if the matter remains in the Canberra registry. He noted that Comcare and its retained solicitor are located in Canberra and he suggested that evidence from medical or other witnesses in Sydney could be taken by telephone. Whereas, in his submission, if the application is relocated to the Sydney registry, costs for the Respondent could reasonably be expected to increase if Comcare’s presently retained lawyer is required to travel to Sydney in the course of proceedings.
8. Having regard to these factors, Mr Richards directed attention to relevant authorities (to which I will return) and urged me to accept that the balance of convenience lies in favour of the status quo – the application was lodged and commenced in the Canberra registry and should remain to be dealt with to finality in that registry.
9. I do not agree.
10. It is appropriate to follow the principles set out by the Full Court of the Federal Court of Australia in National Mutual Holdings Pty Ltd and Ors v The Sentry Corporation and Anor[9]. Essentially the Tribunal must:
…be satisfied, after considering all of the relevant matters, that there is a sound reason to direct that the proceeding be conducted or continued elsewhere. Its starting point is that the proceeding has been commenced in a particular place. Why should it be changed?[10]
Relevant factors should be considered, including whether the party who commenced the proceedings chose the place of commencement capriciously; the duration and stage of the proceedings and the steps taken in the place of commencement; and the balance of convenience.
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.[11]
[9] (1998) 19 FCR 155.
[10] Ibid at 162.
[11] Ibid at 162.
These principles have been applied by the Tribunal in recent cases addressing similar facts.[12]
[12] Re Howarth and Australian Postal Corporation [2008] AATA 655; Re Estate of Eduardo Ferro and Australian Postal Corporation [2009] AATA 174.
11. The Tribunal has power to determine the procedure to be followed in proceedings before it.[13] There is no onus of proof on either party.
[13] Section 33 Administrative Appeals Tribunal Act 1975.
12. It is clear that the proceedings were commenced in the Canberra registry by Ms Roxas’ retained solicitor. The reason why the Canberra registry was selected remains opaque. On the face of her statement, it appears the reason was that Ms Roxas believes that Mr Robertson is an expert in Comcare compensation matters and no other solicitors in other Brydens’ offices in Sydney handle such matters.[14] There is no evidence to support this assertion. As it appears to me, Brydens is an established firm of lawyers that is based in Sydney and with offices in a number of locations; it is a firm that holds itself out publicly to be expert in matters relating to personal injury and compensation.[15] On that basis I find it difficult to accept the proposition that “none of the solicitors in other offices of Brydens handle Comcare matters”. Nevertheless, it is possible that the “Comcare section of Brydens is located in the Canberra office” and that Mr Robertson is an expert who specialises in Comcare worker’s compensation matters; at least, that is what Ms Roxas believes. Certainly there is no evidence before me that she or her retained solicitor acted capriciously when lodging her application in the Canberra registry of the Tribunal. Thus, if Ms Roxas, chooses for her own reasons to retain a solicitor to represent her in these proceedings in Canberra that is a matter for her; in the present circumstances, this weighs slightly in favour of the application remaining in Canberra, but is subject to analysis of other relevant factors.
[14] Statement by Maria Roxas, 4 November 2009 at [4].
[15] Brydens’ website –
13. The application for transfer of the application was made on 19 October 2009, approximately five weeks after the Tribunal decided to grant Ms Roxas an extension of time in which to make her application. Only few steps had been taken in the application during that five week period – T-documents were lodged and a telephone preliminary conference was listed – this has now taken place and orders concerning the filing of certain evidence and statements of facts, issues and contentions have been made. These matters do not weigh heavily one way or the other.
14. The matters concerning costs arising from Ms Roxas’ statement are not readily comprehensible. She asserts that if the application is transferred she will face increased costs if Mr Robertson is required to travel to Sydney in the course of proceedings, and that may be true. She does not, however, refer to any increased costs that she may incur in having to travel to Canberra if the status quo is maintained and the matter continues in the Canberra registry. Mr Richards’ assertion that Mr Robertson’s travel costs would significantly exceed any travel costs Ms Roxas may incur if the application is not transferred is not supported by any evidence. If, as Mr Richards submitted, Mr Robertson availed himself of flights between Canberra and Sydney and stayed in a hotel, his costs would exceed those of Ms Roxas travelling to Canberra by coach and staying with friends; that can readily be accepted if those facts are established, but they are not. It is equally conceivable, for example, and equally speculative, that as a result of the neck condition she suffers Ms Roxas may need to fly rather than travel by coach to attend a consultation with Mr Robertson or a conference in the Tribunal in Canberra, and she may not be in a position to stay with friends in Canberra or may chose to stay in a hotel. In those circumstances any travel cost differential between Mr Robertson and Ms Roxas would be substantially reduced.
15. Furthermore, Ms Roxas does not refer to the time, lost wages (if any) or inconvenience to her that may be involved in her travelling to Canberra during the course of proceedings if the application is not transferred. As I understand Mr Richards’ submission, he was unable to assist in quantifying any amount of increased costs in relation to his own involvement if the matter proceeds to hearing and he is briefed to appear in the Sydney registry rather than the Canberra registry – simply put, at this early stage in the proceedings, his involvement is not certain and any cost implications are speculative and are not established.
16. Finally on this point, the basis of cost arrangements between Ms Roxas and Brydens is not clear and there is no evidence concerning the basis on which representation is provided, perhaps that is not surprising, but nevertheless, it is a relevant factor in any detailed analysis of allegations concerning increased costs to Ms Roxas. For example, if representation is provided on a ‘no win, no fee’ basis, the cost implications of transferring the application to the Sydney registry could reasonably be expected to change insofar as Ms Roxas is concerned. As I have said, there is no evidence to properly support Mr Richards’ submission and Ms Roxas’ statements concerning alleged cost implications for her if the application is transferred to Sydney.
17. That being so, I am not persuaded that Ms Roxas’ concerns and Mr Richards’ submissions concerning an increase in her costs if the matter is transferred to the Sydney registry are made out. As it appears to me, Ms Roxas is likely to face increased costs as a result of retaining a solicitor in Canberra whether or not her application remains in the Canberra registry or is transferred to the Sydney registry of the Tribunal.
18. I was informed by Ms Carmen King, a Dibbs Barker solicitor for Comcare, that Comcare would not face additional costs if the application is transferred to the Sydney registry, as Dibbs Barker have offices in Sydney and responsibility for representing Comcare in the application would be transferred to a solicitor in that office. As it appears to me, however, this would necessitate a Comcare delegate or case officer travelling to Sydney for face-to-face alternative dispute resolution conferences and any hearing. This would represent an increased cost to Comcare if the application is transferred.
19. Thus, in relation to costs issues, if the application is transferred to the Tribunal’s Sydney registry there may be a small increase in costs, and this weighs, but not heavily, in favour of the application remaining in Canberra.
20. That is not the end of the matter, however. The balance of convenience requires consideration of other factors, including in relation to witnesses and evidence. Ms Roxas is employed and allegedly suffered an injury to her neck in the place of her employment at the Kingsford Smith Airport in Sydney. She suffered a previous injury to her neck in that same place of employment. The plain fact is that all relevant witnesses are located in Sydney, with the possible exception of an expert medical witness in Canberra. No arrangements for Ms Roxas to be examined and assessed by such an expert in Canberra have yet been made; it is open for her to seek a suitable medical expert in Sydney if the matter is transferred. Ms Roxas’ treating doctors and physiotherapists are located in Sydney. These factors weigh heavily in favour of transferring the application to the Sydney registry of the Tribunal.
21. It is true that witnesses may be permitted to give evidence by telephone, but that has not yet been decided in these proceedings; if issues of credit are in play, it is less likely that any such request would be granted. If lay witnesses are required to give evidence in person, the costs of doing so will be greater in Canberra than in Sydney. Similarly, medical expert witnesses may be permitted to give evidence by telephone, but that too has not yet been decided; if it is decided for experts to give evidence concurrently, giving evidence by telephone is less likely. If medical experts or treating doctors are required to give evidence in person, the costs of doing so in Canberra will exceed the cost of doing so in Sydney. It is conceivable that the Tribunal may be asked to inspect Ms Roxas’ place of employment to better understand the circumstances of her alleged neck injury, although that has not yet been requested or decided, and it may not occur, but if the matter remains in the Canberra registry any such inspection may be less practical than if the application is transferred to Sydney. These matters weigh in favour of transferring the application to Sydney.
22. The Tribunal can practically and efficiently conduct the matter to finality in either the Canberra registry or the Sydney registry without disadvantage to either party. These considerations do not weigh one way or the other.
conclusion
23. Thus, in sum, considering the submissions of the parties and weighing the various factors, it appears to me that the balance of convenience lies in favour of transferring Ms Roxas’ application to the Sydney registry of the Tribunal.
24. I note that a timetable for filing and serving evidence has been set by orders issued on 30 October 2009. I see no reason to set aside or vary those directions as a result of transferring this application, and no such request was made by either party.
direction
25. The management of Ms Roxas’ application is 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 25 preceding paragraphs are a true copy of the reasons for the decision herein of Member S. Webb.
Signed: ..................[sgd]........................................
J. Lakin, AssociateDate of Hearing 5 November 2009
Date of Decision 10 November 2009
Solicitors for the Applicant Dibbs Barker
Counsel for the Respondent Mr D. Richards
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