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

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] AATA 956
Decision Date: 30 September 2005

CaseChat Overview and Summary

The case of Slater and Telstra Corporation Limited involved an application for review made by Slater against Telstra Corporation Limited. The matter was heard before the Administrative Appeals Tribunal (AAT), which had previously decided on the merits of the case in a decision dated 6 June 2005. The AAT was now being asked to review its earlier decision and grant a fresh hearing on the question of jurisdiction, as well as to reconstitute the Tribunal following an objection under section 34F of the Administrative Appeals Tribunal Act 1975. The legal issues before the Tribunal were whether the circumstances had changed since the earlier decision, and whether the Tribunal member was precluded from hearing the matter due to participation in a conference.

The Tribunal found that the circumstances had not changed since the earlier decision, and that there was no valid reason for a fresh hearing of the jurisdictional issues. The Tribunal also found that the member was not precluded from hearing the matter due to participation in a conference, and that the objection under section 34F was accordingly refused. The Tribunal noted that the member's participation in the conference did not amount to a reasonable apprehension of bias, as the member had not expressed any views on the merits of the case during the conference. The Tribunal also found that the limited issues under review pursuant to section 25(4A) in the prior decision meant that the current application was not within the scope of the review.

The application for a fresh hearing of jurisdiction was accordingly refused, as was the application for the Tribunal to be reconstituted. The Tribunal found that there was no valid reason to grant a fresh hearing, as the circumstances had not changed since the earlier decision, and that the objection under section 34F was accordingly refused. The Tribunal noted that the member's participation in the conference did not amount to a reasonable apprehension of bias, and that the limited issues under review meant that the current application was not within the scope of the review. The Tribunal will proceed to deal with the matters outlined in its reasons of 6 June 2005.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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