SLATER Applicant And TELSTRA CORPORATION LIMITED

[2010] AATA 274

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 274

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0824

GENERAL ADMINISTRATIVE DIVISION		)
Re		GORDON SLATER

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date19 April 2010

PlaceCanberra

Decision

Having heard the parties pursuant to section 33 of the Administrative Appeals Tribunal Act 1975 (AAT Act), pursuant to subsection 25(4) of that Act, I direct that:

1.    the scope of the issues to be considered in these proceedings is confined to the calculation of Mr Slater’s NWE amount on and after 1 June 2002;

2.    Telstra’s request for the application to be transferred to the Brisbane registry of the Tribunal is denied;

3.    Telstra has seven days from this date in which to lodge all relevant documents under section 37 of the AAT Act; and

4.    once a further seven days have elapsed a telephone directions hearing is to be listed before me to determine the procedure to be followed.

....................[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

PRACTICE AND PROCEDURE - extension of time in which to lodge documents

Administrative Appeals Tribunal Act 1975 ss 25, 33, 37

Safety, Rehabilitation and Compensation Act 1988 ss 8, 19

Re Slater and Telstra Corporation Limited [2009] AATA 434

Re Slater and Telstra Corporation Limited [2007] AATA 1085; (2007) 45 AAR 111

Re Slater and Telstra Corporation Limited [2006] AATA 533

Re Slater and Telstra Corporation Limited [2005] AATA 956; (2005) 41 AAR 458

Re Slater and Telstra Corporation Limited [2005] AATA 527; (2005) 40 AAR 369

Re Slater and Telstra Corporation Limited [2004] AATA 1207

Re Slater and Telstra Corporation Limited [2004] AATA 1010; (2004) 84 ALD 158

Re Slater and Telstra Corporation Limited [2002] AATA 597

Re Slater and Telstra Corporation Limited [1999] AATA 849

Re Slater and Telstra Corporation Limited [1998] AATA 176

Slater v Telstra [2004] FCA 476

Slater v Telstra Corporation Limited [2001] FCA 1417; 115 FCR 34

Telstra Corporation Limited v Slater and Slater v Telstra Corporation Limited [2001] FCA 667

Telstra v Slater [2001] FCA 356

Telstra v Slater [2001] FCA 149

Re Grimsley and Telstra Corporation Limited [2010] AATA 106

Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374

Re Zarb and Comcare (1997) 25 AAR 344

Telstra v Peisley (2006) 151 FCR 275

Comcare v Pires (2005) 143 FCR 104

Re Quinn and Australian Postal Corporation (1992) 15 AAR 519

Re Roxas and Comcare (2009) 50 AAR 569

Re Cook and Australian Postal Corporation [2009] AATA 946

Re Howarth and Australian Postal Corporation [2008] AATA 655

Re Estate of Eduardo Ferro and Australian Postal Corporation [2009] AATA 174

National Mutual Holdings Pty Ltd & Ors v The Sentry Corporation & Anor (1988) 19 FCR 155

REASONS FOR DECISION

19 April 2010 Mr S. Webb, Member         

1.      Gordon Slater was injured in employment by Telstra Corporation Limited (Telstra) in 1996. Telstra accepted liability and paid Mr Slater compensation. Subsequently, however, Telstra, by its insurer Allianz Insurance Pty Limited (Allianz), determined that he was not entitled to compensation for incapacity. Mr Slater has challenged this and subsequent related decisions in many applications to the Tribunal’s Brisbane registry[1] and in the Federal Court of Australia.[2]

[1] [2009] AATA 434; AATA 1085, (2007) 45 AAR 111; [2006] AATA 533; AATA 956, (2005) 41 AAR 458; AATA 527, (2005) 40 AAR 369; [2004] AATA 1207; AATA 1010, (2004) 84 ALD 158; [2002] AATA 597; [1999] AATA 849; [1998] AATA 176.

[2] Slater v Telstra [2004] 476; Slater v Telstra Corporation Limited [2001] FCA 1417; 115 FCR 34; Telstra Corporation Limited v Slater and Slater v Telstra Corporation Limited [2001] FCA 667; Telstra v Slater [2001] FCA 356; Telstra v Slater [2001] FCA 149.

2.      

In respect of one such application, Deputy President Hack directed that

Mr Slater ‘must not, without leave of the Tribunal, make any application to the Tribunal with respect to any claimed entitlements to compensation under s 19 of the Safety, Rehabilitation and Compensation Act 1988 prior to 1 June 2002’.[3]

[3] Re Slater and Telstra Corporation Limited [2007] AATA 1085; 45 AAR 111.

3.      On 2 March 2010 Mr Slater lodged an application for review of a reconsideration decision made by Allianz on 22 February 2010 that affirmed a primary determination. The 13 January 2010 primary determination has been filed.[4] On the terms of that decision it appears that Mr Slater raised two issues by claim: weekly compensation from 1 June 2002 and recalculation of any entitlements to weekly compensation for the period from 1 October 1997 to 31 May 2002. The terms of these decisions and Mr Slater’s application for review make it perfectly clear that, once again, Mr Slater is agitating matters relating to his entitlement to weekly payments for incapacity before and after 1 June 2002.[5]

[4] Respondent’s documents filed 13 April 2010.

[5] Application for Review of a Decision filed on 2 March 2010, p2, Reasons for Application.

4.      It is in this context that three disputed issues arise for determination at this early stage of proceedings. Telstra, by its legal representative, Mr Routh, asserts that Mr Slater requires and does not have leave of the Tribunal to make the application. Furthermore Telstra has applied for the application to be transferred from the Tribunal’s Canberra registry to the Brisbane registry and has requested an extension of time in which to lodged documents under section 37 of the AAT Act.

5.      Mr Slater asserts that leave was granted to him to apply by Senior Member McCabe in earlier proceedings[6] and he opposes the applications for transfer and extension of time.

[6] Re Slater and Telstra Corporation Limited [2009] AATA 434 at [37].

6.      Written submissions have been filed by both parties. I heard oral submissions in an interlocutory hearing on 14 April 2010.

leave to make an application

7.      In Mr Routh’s submissions for Telstra, Mr Slater has not been granted leave to make an application and his application should not be allowed insofar as it deals with matters that have already been determined by the Tribunal in other proceedings.[7] Mr Routh conceded that the terms of Deputy President Hack’s direction concerning leave to apply are confined in terms to applications concerning claims for entitlements under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) prior to 1 June 2002, and this does not extend to encompass matters arising in relation to section 8 of the SRC Act. Mr Routh also conceded that there is no bar to Mr Slater making an application in relation to the calculation of incapacity entitlements after 1 June 2002.

[7] Re Grimsley and Telstra Corporation Limited [2010] AATA 106.

8. Mr Slater asserts that the Tribunal has granted him leave to make further applications concerning section 19 entitlements prior to 1 June 2002; he says that Senior Member McCabe clearly allowed this in paragraph 37 of his 17 June 2009 decision.[8]

[8] Re Slater and Telstra Corporation Limited [2009] AATA 434 at [37].

9. There are a number of things to say about these matters. In general terms, the proposition that section 33 of the AAT Act is a firm basis on which the Tribunal may decline to allow the relitigation of issues previously decided by it is well made.[9] Even though prima facie Deputy President Hack’s direction is confined to applications in relation to section 19 entitlements prior to 1 June 2002, the power to refuse to allow relitigation of matters that have been finally determined is not so limited. When making any such decision, one must assess whether any material change has occurred, in the form of fresh evidence or changed circumstances of relevance, for example, that bear upon the particular matter that was previously determined. The decision in Re Grimsley and Telstra Corporation Limited[10] exemplifies this requirement; in that case issues of causation were determinative of certain entitlements in a consent decision. Subsequently Ms Grimsley attempted to make further claims on the basis of fresh evidence that went to matters of degree, but the fresh evidence did not bear upon the issue of causation that was previously disentitling. That being so, there was no fresh evidence concerning the determinative issue and the Tribunal did not allow the application to proceed.

[9] Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 at 390.

[10] [2010] AATA 106.

10.     

Mr Slater’s case in these proceedings is slightly, but only slightly, different.

By various decisions to which I have referred, Mr Slater’s entitlement to weekly incapacity payments have been determined. His entitlements prior to 1 June 2002 were decided by the Tribunal in 2002.[11] An appeal to the Federal Court from this decision was not successful.[12] Nevertheless, Mr Slater made several further applications on this and related issues.[13] It is very clear that the calculation of normal weekly earnings (NWE) and issues concerning suitable employment for the purposes of section 19 were the subject of these proceedings.

[11] Re Slater and Telstra Corporation Limited [2002] AATA 597.

[12] Slater v Telstra Corporation Limited [2004] FCA 476.

[13] See Re Slater and Telstra Corporation Limited [2004] AATA 1010; 84 ALD 158 and Re Slater and Telstra Corporation Limited [2005] 527; 40 AAR 369, for example.

11.     It is tolerably clear that Mr Slater feels aggrieved that issues he has attempted to litigate on several occasions have not properly been addressed. These issues include:

(a)the NWE calculations did not include any amount for overtime: Mr Slater says that previous NWE calculations are incorrect, the law has changed and his entitlements should be recalculated – Re Zarb and Comcare (Zarb)[14] has been over-ruled by Telstra v Peisley (Peisley)[15] and Comcare v Pires[16]; procedural advice issued by Comcare has not been followed;

[14] Re Zarb and Comcare (1997) 25 AAR 344.

[15] Telstra v Peisley (2006) 151 FCR 275.

[16] Comcare v Pires (2005) 143 FCR 104.

(b)

clerical work was deemed to be suitable employment for him:

Mr Slater says that clerical work is not suitable employment;

(c)

the AE (ability to earn) assessment for the purposes of section 19 of the SRC Act is based on a Queensland Clerks Award (the Award):

Mr Slater says that this is not appropriate as no clerical work at the Award rate of pay is available to him in England;

(d)the relevant labour market is said to be in Queensland: Mr Slater says that this is not appropriate as he resides in England.

12.     These issues have been dealt with by previous Tribunal decisions to which I have referred. Mr Slater has not produced any fresh probative evidence that bears upon issues that have already been decided by the Tribunal. The reconsideration decision and the primary determination affirmed therein do not contain or address any fresh issues. The only real point of any substance in his oral submissions concerns the change in law in 2006[17] concerning the inclusion of overtime in NWE calculations. These were matters that were squarely dealt with over time in relation to Mr Slater’s application number Q2002/563 (also referred to as Q 200200563).[18]

[17] See Telstra v Peisley (2006) 151 FCR 275.

[18] See decisions and directions dated 30 September 2005, 6 June 2005, 21 June 2006, 4 July 2008 and 17 June 2009.

13.     

I note that Senior Member McCabe did not determine Mr Slater’s NWE amount in [2009] AATA 434 – that matter was left for Telstra to determine for technical reasons concerning the precise nature and terms of the reviewable decision. In its primary determination Telstra relied on the Tribunal’s finding of

Mr Slater’s NWE amount as at 20 December 2001. The result did not change

Mr Slater’s entitlement to weekly incapacity payments thereafter. The reasons for this are that:

(a)he was found to be fit for full time employment in suitable employment as a clerical officer, and

(b)based on the Award, he was found to be able to earn an amount in such employment that exceeded his NWE amount by a substantial margin.

14.     As each of these determinative matters have been previously decided by the Tribunal, in the circumstances I am satisfied that it is not appropriate or desirable to allow them to be relitigated by Mr Slater in these proceedings.[19]

[19] Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 at 526.

15.     

Nevertheless, Mr Slater correctly asserts that the previous decision of the Tribunal in 2009 did not finally decide the amount of his NWE from 1 June 2002.[20]

Mr Slater went so far as to say that the decision left open the calculation of his NWE amount prior to 1 June 2002. I do not agree. The Tribunal expressly did not do that and limited the scope of those proceedings to ‘focus on whether Mr Slater’s condition had deteriorated… since 1 June 2002’.[21] Furthermore, Mr Slater argued that his NWE amount that has not been determined by the Tribunal since Peisley[22] and that issue is live in these proceedings. That does not follow, however. In [2002] AATA 597 the Tribunal found that Mr Slater’s overtime in the period prior to his injury was not required or regular. Even though reference is made in the reasons for that decision to Zarb[23] and the construction adopted in relation to the meaning of the words ‘required’ and ‘regular’, it does not follow that the Tribunal’s decision concerning subsection 8(2) of the SRC Act was not correct. The Full Federal Court judgement in Peisley bears upon this point – the Court adopted a more generous interpretation of these terms than that adopted in Zarb.

[20] Re Slater and Telstra Corporation Limited [2009] AATA 434 at [37].

[21] Ibid at [6] and [37].

[22] (2006) 151 FCR 275.

[23] (1997) 25 AAR 344.

16.     Considering the terms of the reconsideration decision and the initial determination affirmed therein, it is tolerably clear that the decision makers determined an NWE amount as of 20 December 2001 and in relation to subsequent indexation adjustments.[24] This 2001 NWE amount was finally determined by the Tribunal in its 2002 decision.[25]

[24] Primary determination, 13 January 2010, Schedule.

[25] Re Slater and Telstra Corporation Limited [2002] AATA 597.

17.     Mr Routh correctly conceded that it is open for Mr Slater to challenge the reviewable decision insofar as the NWE calculations from 1 June 2002 have not previously been the subject of litigation before the Tribunal. All other aspects of the reviewable decision have previously been settled and it is not appropriate or desirable to allow them to be revisited in these proceedings. I agree.

18.     

For these reasons I am satisfied that it is appropriate to use the power that is available in subsection 25(4) of the AAT Act to limit the scope of the issues to be considered in these proceedings to the calculation of Mr Slater’s NWE amount on and after 1 June 2002. The Tribunal will not consider any arguments about matters that have already been decided in previous proceedings. Issues concerning

Mr Slater’s section 19 entitlements prior to 1 June 2002 will not be considered; issues concerning his fitness for employment, what amounts to suitable employment, the availability of suitable employment and the relevance of the Queensland Clerks Award in the period following 1 June 2002 will not be considered. Facts found in earlier proceedings concerning any relevant matter will stand, concerning the amount of overtime Mr Slater worked in the period immediately prior to his injury in 1996 for example.[26] I so order.

[26] Re Slater and Telstra Corporation Limited [2002] AATA 597 at [61].

19.     That, however, is not the end of the matter. The next question is Telstra’s request that the application be transferred to the Brisbane registry of the Tribunal.

20.     There is very scant evidence concerning relevant matters. Mr Slater lives in the United Kingdom. He noted that Telstra’s litigation section is based in Melbourne and Telstra’s legal representative, Mr Routh, is based in Newcastle in New South Wales. Mr Slater gave no reason for lodging his present application in the Canberra registry. His previous applications have all been dealt with in the Tribunal’s Brisbane registry. Mr Slater has made a number of complaints about aspects of his earlier cases in the Brisbane registry, specifically concerning (then) Deputy President Muller. I note that Deputy President Muller is no longer a member of the Tribunal and that a previous request for his matters to be transferred to the Sydney registry was not successful. Mr Slater stated that he did not want his application dealt with in the Brisbane registry; he suggested that he would agree to transfer of the application to Melbourne if it assisted Telstra. In his submission it is up to him where he lodges any application and the present issue should be resolved by applying the balance of convenience test. He asserts that transferring the application to the Brisbane registry is not convenient for either party.

21.     Mr Routh asserted that the application should be transferred to the Brisbane registry as previous records and documents concerning Mr Slater’s various applications are retained in that registry. Furthermore, he submitted that witnesses may be required if the matter proceeds and those witnesses would, in all likelihood, be located in Queensland. Mr Routh informed me that Mr Slater’s injury occurred in Queensland and he has been examined by medical doctors in Brisbane for the purposes of proceedings. He says that it is conceivable that further medical evidence may be required from one or more of those doctors and that will be facilitated, insofar as the Tribunal proceedings are concerned, by transferring the application to Brisbane.

22.     Recent cases[27] have adopted the principles set out by the Full Court of the Federal Court of Australia in National Mutual Holdings Pty Ltd & Ors v The Sentry Corporation & Anor[28]. Essentially the Tribunal must,

… be satisfied, after considering all relevant matters, that there is sound reason to direct that the proceeding be conducted or continued elsewhere. Its starting point is that the proceeding has been commenced at a particular place. Why should it be changed?[29]

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.[30]

[27] Re Roxas and Comcare (2009) 50 AAR 569; Re Cook and Australian Postal Corporation [2009] AATA 946; Re Howarth and Australian Postal Corporation [2008] AATA 655; Re Estate of Eduardo Ferro and Australian Postal Corporation [2009] AATA 174.

[28] (1988) 19 FCR 155.

[29] Ibid at 162.

[30] Ibid at 162.

23.     To some extent this case can be distinguished from preceding cases on the facts: there is no present connection between either party and the Canberra registry or the Brisbane registry. The only connection with the Brisbane registry is historical. When one considers the narrow scope of the proceedings that I have allowed, the likelihood of medical witnesses or any other witnesses being called is very low. Essentially, the calculation of Mr Slater’s NWE amount from 1 June 2002 is a technical exercise that could readily be decided on the papers with written submissions from the parties. I do not accept that large volumes of historical documents from previous cases involving Mr Slater will be required for that purpose. Any documents that are required under section 37 of the AAT Act will be confined by considerations of relevance to the matters that will be considered by the Tribunal.

24.     No evidence as to the relative cost implications to either party has been tendered and no submissions were made on this point. That is perhaps understandable in the circumstances where neither party is located in either Brisbane or Canberra. Whether additional legal costs would be incurred if the matter remains in Canberra or if it is transferred to Brisbane remains opaque.

25.     There is no evidence, and no suggestion by Telstra, that Mr Slater has acted capriciously by lodging his application in Canberra. He has given no reason for lodging his application in this registry, but I note his complaints about aspects of past cases in the Brisbane registry.[31] As it appears to me those complaints are not matters of present moment. Nevertheless, it is plain enough that Mr Slater has not been successful in some of his applications in Brisbane, and it is apparent that he is attempting to revisit matters that have already been dealt with and decided by his applications in Brisbane. It is also apparent that a number of members of the Tribunal in the Brisbane registry have been involved in deciding those applications. Mr Slater did not make any suggestion that he would receive unfair treatment in either registry, and he raised no issues concerning any apprehension of bias. Nevertheless, the prospect remains that he may raise such issues in the future, as he has done in the past. Mr Slater is not going to be allowed to relitigate matters that have been finally decided by the Tribunal previously. The prospect of further complaint from Mr Slater may apply equally in either registry and is presently speculative.

[31] Documents filed by the Applicant on 14 April 2010.

26.     Weighing these matters in the balance of convenience, there is no reasonable basis on which to disturb the status quo and order transfer of Mr Slater’s application from the Canberra registry to the Brisbane registry of the Tribunal. The matter can be managed efficiently and effectively in either registry. No cost considerations have been agitated. The history of Mr Slater’s applications is apparent in the resulting decisions that have been published. The Tribunal’s electronic records are available in every registry and it is a simple matter for any paper files, subject to relevance, to be transferred from one registry to another if it is necessary to do so. If it is necessary for witnesses to be called in these proceedings, and that is not likely, evidence can be taken by telephone or videolink. I note that Mr Slater resides in the United Kingdom and if he is to appear to present his case or to give evidence it will be necessary to determine whether he will be required to appear in person or by other means, little turns on whether any such appearance would be in Canberra or in Brisbane.

27.     Thus, there is very little weighing one way or the other in respect to Telstra’s request for transfer. The starting place for these considerations is the place at which the application was made and the proceedings commenced and the question ‘Why should it be changed?’ In this case, there is no compelling reason that it should be. Thus, Telstra’s request for transfer is denied.

28.     The final matter to be decided concerns Telstra’s application for an extension of time in which to lodge documents under section 37 of the AAT Act. As was agreed during the hearing, without controversy, Telstra will have seven days from the date of this interlocutory decision in which to file all such relevant documents.

29.     Once a further seven days have elapsed thereafter, a telephone directions hearing is to be listed before me at a convenient time to determine the procedure that is to be followed.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

Signed:  ..................[sgd]...................................................
  J. Lakin, Associate

Date of Hearing  14 April 2010
Date of Decision  19 April 2010
Applicant self-represented             

Solicitor for the Respondent  Mr S. Routh, Sparke Helmore Lawyers