Slater and Telstra Corporation Ltd

[2005] AATA 956

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 956

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2002/563

GENERAL ADMINISTRATIVE DIVISION		)
Re		GORDON SLATER

Applicant

And TELSTRA CORPORATION LTD

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date30 September 2005

PlaceBrisbane

Decision

1.    The application for a fresh hearing of jurisdiction is refused.

2. The application for the Tribunal to be reconstituted following an objection under s 34F is refused.

3.    The Tribunal will proceed to deal with the matters outlined in its reasons of 6 June 2005.

.................[Sgd]........................

SENIOR MEMBER

CATCHWORDS

PRACTICE AND PROCEDURE – Application for review – application for fresh hearing of jurisdiction denied – Tribunal limited issues under review pursuant to s 25(4A) in prior decision – the circumstances have not changed – alleged bias of Tribunal member – member not precluded from hearing matter due to participation in conference – objection under s34F refused.

Slater and Telstra Corporation Limited [2005] AATA 527

Slater and Telstra Corporation Limited [2002] AATA 597

Administrative Appeals Tribunal Act 1975 s 25, 34F

Safety, Rehabilitation and Compensation Act 1988 s 58

REASONS FOR DECISION

30 September 2005              Senior Member B J McCabe

the directions hearing of 8 september 2005 and the applicant’s request for a further hearing of jurisdiction

1.      Gordon Slater has asked the Tribunal to revisit a decision made on 6 June 2005 (Slater and Telstra Corporation Limited [2005] AATA 527) in these proceedings which defined and limited the issues under review pursuant to s 25(4A) of the Administrative Appeals Tribunal Act 1975. In my reasons accompanying the decision made on 6 June 2005, I explained why the Tribunal would restrict itself to considering whether or not Mr Slater’s condition or circumstances have changed since 1 June 2002. I did so because I formed the view that Mr Slater’s claim in respect of the period prior to that date had already been dealt with by the Tribunal in other decisions, notably Slater and Telstra Corporation Limited [2002] AATA 597.

2.      My decision on 6 June 2005 was made after receiving and considering submissions from both parties on the question. A directions hearing was held on 26 July 2005. I told the applicant it would be necessary for him to produce medical evidence which detailed his condition and the effect of his injury so an assessment could be made as to whether his condition has changed since 1 June 2002.  If it had changed for the worse, his entitlement to compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) might also have changed. To that end, I made two directions at the hearing which were recorded in a written Direction dated 27 July 2005:

On or before 4pm on 7 September 2005 the applicant file in the Brisbane registry and serve on the respondent comprehensive medical evidence about the applicant’s condition and change in condition since 1 June 2002.

On or before 4pm on 7 September 2005 the applicant file in the Brisbane registry and serve on the respondent a statement outlining the applicant’s work history and change in work history since 1 June 2002.

3.      Mr Slater filed a statement on 25 August 2005 which set out brief details of his work history since 1970. He subsequently provided a certificate from his general practitioner, a letter of referral to a specialist and a copy of correspondence with the Department of Social Services in the United Kingdom confirming he was unfit for work. The respondent had earlier provided Mr Slater with an authority addressed to his treating doctor. Mr Slater was asked to sign and return the document so that it could be used to obtain his medical records from his treating doctor.

4.      Mr Slater wrote to the respondent’s solicitors on 30 August 2005. In that letter, he asked for clarification of the scope of the authority. He also required that the notice be amended so that it took into account his right to inspect the documents before they were released to the respondent. Mr Slater says he has that right under the Access to Medical Records Act 1993 (UK).

5. The respondent replied by letter on 1 September 2005. The letter included a notice under s 58 of the SRC Act in relation to the medical records held by Dr Long, the treating general practitioner. The letter foreshadowed that the respondent would ask the Tribunal to stay the matter pursuant to s 58 until the records were provided.

6. Mr Slater replied in writing on 6 September 2005. In that letter, he disputed the validity of the s 58 notice.

7. A directions hearing was held by telephone on 8 September 2005 to discuss the progress of the matter. Mr Slater appeared on his own behalf from the United Kingdom, where he currently resides. Mr Dickson appeared on behalf of the applicant. Mr Slater disputed the respondent’s claim that he had refused to sign the authority. I pointed out to Mr Slater that it was likely I would require access to all of his medical records if I were to make a properly informed decision. He indicated he was concerned about the confidentiality of those records. I agreed I would make an order under s 35(2) of the Administrative Appeals Tribunal Act 1975 restricting access to the documents to the Tribunal and its staff, the respondent and its legal advisers. I also secured an undertaking from the respondent that it would make and provide copies of the medical records to Mr Slater at no charge. On that basis, Mr Slater agreed to:

·     sign and return the authority in relation to Dr Long the following day;

·     to file and serve a statement identifying to the best of his recollection all of the doctors the applicant has consulted in the United Kingdom so that the respondent could prepare additional authorities;

·     to sign and return any additional authorities he receives from the respondent within 7 days of receipt.

8. I made directions to that effect. It was unnecessary to deal with the applicant’s arguments about s 58 in those circumstances.

9.      The respondent also made submissions about difficulties it was having in contacting the respondent. Mr Slater has a fax machine which enables him to send correspondence. The machine does not print incoming transmissions. As a result, Mr Slater is able to despatch communications expeditiously but the respondent has difficulty communicating with him. The respondent asked that it be allowed to serve documents on Mr Slater’s former solicitors in Australia. Mr Slater said those solicitors no longer act on his behalf. Mr Dickson pointed out that in most court proceedings the rules require that the parties maintain an address for service within the jurisdiction.

10.     I am not prepared to direct that the applicant’s former solicitors accept service on his behalf from the respondent. There is no reason to believe they continue to act on his behalf. I note the Tribunal does not have comparable rules that require the applicant to maintain an address for service in the jurisdiction.

11.     Mr Slater says he cannot afford a new fax machine, nor can he afford to fix the existing one. He inquired whether the respondent was prepared to purchase a machine for him to use in connection with these proceedings. The respondent rejected this request. I am not prepared to order that Mr Slater purchase or repair his existing machine.

12.     Mr Slater says most letters reach him in a matter of three to five days. I decided the applicant and respondent should proceed on the basis that the applicant would be deemed to have received documents from the respondent that were posted to him within five working days of their despatch from Australia. The respondent asked for a direction to that effect, and I was initially inclined to give it. On reflection, I concluded it was not a matter in respect of which I could give directions. Even so, I think the respondent is entitled to proceed on the basis I have indicated.

13.     Towards the end of the hearing, Mr Slater asked for directions in relation to what he described as Telstra’s non-compliance with earlier orders to produce documents. Mr Dickson objected to the application. He said there was no notice of it. I decided in the circumstances that it was appropriate for Mr Slater to write to the Tribunal setting out the basis of his application. I added that he should swear to any allegations of fact that he wished to make in the ordinary way.

14.     Mr Slater then asked for a fresh hearing of jurisdiction. He wishes to dispute my decision that these proceedings will be restricted to the question of whether his condition has deteriorated since 1 June 2002. Mr Dickson objected on the basis that the issue had already been extensively canvassed and a decision had been made.

15. I decided to refuse the request in light of the Tribunal’s decision of 6 June 2005. That decision was made in accordance with s 25(4A) of the Administrative Appeals Tribunal Act 1975. I reminded Mr Slater that if he was unhappy with the decision, he could appeal to the Federal Court.

Mr Slater’s letter of 9 september 2005

16.     Mr Slater wrote to the Tribunal that evening to protest. His facsimile referred to previous correspondence and decisions of the Tribunal. He renewed his request for a jurisdiction hearing.

17. I remain of the view it is not appropriate to conduct another jurisdiction hearing. The Tribunal heard Mr Slater’s submissions about the scope of the review before making the decision dated 6 June 2005 pursuant to s 25(4A). If Mr Slater disagrees with the decision, his proper course is to lodge an appeal.

18.     Mr Slater also said he would not sign and return the authorities to obtain medical records even though he agreed and was directed to do so. He said:

Having considered the approach taken by the Tribunal at this hearing and the comments of the respondents counsel and the fact that this matter has been waiting over three years to be heard then this matter should be set down immediately after the jurisdiction issue outlined above is heard, on the evidence which is before this Tribunal

19.     I advised Mr Slater during the course of the directions hearing that it would be difficult to complete a review of his case if I did not have access to all the relevant material.

20.     The respondent’s solicitors wrote to the Tribunal on 12 September 2005 in response to the applicant’s correspondence with the Tribunal. The letter said:

“the Respondent will resist the implied invitation of the Applicant for the hearing of his application to proceed only upon the material which he has so far produced.”

21.     I note – as did Mr Slater in his letter – that Mr Dickson indicated in the course of the directions hearing that the matter probably should be set down if the applicant did not provide the information sought by the respondent.

22.     It would be premature to set the matter down for a hearing at this point. Mr Slater must be given the opportunity to comply with the directions.

the applicant’s letter of 9 September 2005

23.     The applicant wrote a further letter to the Tribunal on 9 September 2005. He raised several additional matters. One of those is an allegation of bias. Mr Slater says my refusal to entertain his application for a fresh jurisdiction hearing is evidence of actual bias on my part. I do not propose to say anything more about that application at this point: the allegation has been passed to the President of the Tribunal. In the meantime, he has asked me to disclose any interest I have in the matter pursuant to s 14. The Registrar will communicate with the applicant in relation to that request in due course. I will however deal with the suggestion I should disqualify myself on the basis that I have already participated in a conference.

24. Mr Slater says I participated in a conference as defined in s 34(4) of the Administrative Appeals Tribunal Act 1975 in relation to this matter on 21 October 2004. Mr Slater has a copy of the hearing attendant’s notes from that part of the proceedings. He says s 43(4) of the Act provides that a member who participates in a conference “is not entitled to be a member of the Tribunal as constituted for the purposes of the proceeding” if a party objects – and he does so.

25. The Act was amended recently to create a new Division 3 that provides more flexible alternative dispute resolution procedures. The provision entitling parties to object to a member presiding over the hearing after participating in a conference is now found in s 34F. That provision is effectively the same as the old s 34, to which Mr Slater refers. (Mr Slater’s reference in his letter to s 43 is presumably a typographical error, as that section is irrelevant.)

26.     Mr Slater’s submission is wrong. The interaction that occurred on 21 October 2004 took place in the context of a telephone hearing. That is how the listing notice described it, and that is the basis on which it was conducted.  It was not a conference or any other form of alternative dispute resolution.

conclusion

27. The application for a fresh hearing of jurisdiction is refused. The application for the Tribunal to be reconstituted following an objection under s 34F is also refused. The Tribunal will proceed to deal with the matters outlined in my reasons of 6 June 2005.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate:      Sam J Appleton

Date of Hearing  8 September 2005
Date of Decision  30 September 2005

Mr Slater appeared on his own behalf.

The respondent was represented by Mr Dickson of counsel.