Walker and FedEx Express Australia Pty Ltd (Practice and procedure) - [2025] ARTA 1665

Walker and FedEx Express Australia Pty Ltd (Practice and procedure) [2025] ARTA 1665 (2 September 2025)
Administrative Review Tribunal

Applicant:

Peter Walker

Respondent:

FedEx Express

Tribunal Number:

2020/4843, 2021/7106, 2022/7640, 2023/3638

Tribunal:

General Member R Cameron

Place:

Melbourne

Date:

2 September 2025

CORRIGENDUM
Date of Corrigendum: 5 September 2025

Pursuant to section 114 of the Administrative Review Tribunal Act 2024 (Cth), the following corrections are made to the Reasons for Decision of the Tribunal dated 2 September 2025:
1.The text of the decision in paragraph 18 is to be altered from “...obtained...” to:
a.“...obtain...”

2.The text of the decision in paragraph 34 is to be altered from “...fail...” to:
a.“...failed...”

3.The word “on” is to be inserted between the words “...of the SRC Act...” and the words “...6 June 2025...” in paragraph 42.
4.The text of the decision in paragraph 59 is to be altered from “...adjudged as dishonest...” and “...which impugned is...” to:
a.“...a judge is...” and “...which impugns...” respectively.

5.The words “...is that...” directly following the words “...SRC Act...” and immediately preceding the words “...the applicant’s rights...” in paragraph 69 are to be removed.
6.The words “...some relieved...” directly following the words “Those proceedings were...” and immediately preceding the words “...dismissed on several grounds...” in paragraph 90 are to be removed.

...................[SGD]...................
General Member R. Cameron
5 September 2025
Applicant/s:  Peter Walker
Respondent:  FedEx Express Australia Pty Ltd
Tribunal Number:                2020/4843, 2021/7106, 2022/7640, 2023/3638

Tribunal:General Member R. Cameron
Place:Melbourne
Date:2 September 2025

Decision:Under sections 99 and 100(a) of the Administrative Review Tribunal Act 2024 (Cth) applications No: 2020/4843, No: 2021/7106, 2022/7640 and 2023/3638 are dismissed.

...................[SGD]..................
General Member R. Cameron
Catchwords
Administrative Review Tribunal Act 2024 (Cth) – Section 32 (2) stay of applications - Section 100 (a) – Summary dismissal if applicant fails within a reasonable time to proceed with the application – construction and application of Section 32 (2) – stay refused – dismissal of application where applicant fails within reasonable time to proceed – how discretion under s 100 enlivened – when exercised – only exercised sparingly and as a matter of “last resort” – applications dismissed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)
Administrative Appeals Tribunal Act 1976 (Cth)
Fair Work Act 2009 (Cth)
Cases
Cuming Smith & Co Ltd v Westralian Farmers Co-operative Ltd [1979] VR 129 at 147.
Charara v Commissioner of Taxation (2016) 160 ALD 57 at [77] – [81].
Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2011) 121 ALD 242 at [39].

Statement of Reasons

INTRODUCTION

These reasons are being delivered following a telephone directions hearing in respect of each of these applications conducted on 19 August 2025.
There were two matters before the…

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: [2025] ARTA 1665
Decision Date: 2 September 2025

CaseChat Overview and Summary

The case between Walker and FedEx Express Australia Pty Ltd was heard before the Administrative Appeals Tribunal (AAT). Walker had brought four applications against FedEx seeking relief under the Safety, Rehabilitation and Compensation Act 1988. The applications, which had progressed very slowly, sought review of decisions denying compensation for various conditions and treatments related to an injury sustained on 15 April 2019. The legal issues before the AAT were whether it had the power to grant a stay of the proceedings under Section 32(2) of the Administrative Review Tribunal Act 2024 (Cth), and if not, whether the applications should be dismissed for Walker's failure to proceed with them within a reasonable time. The AAT found that it did not have the power to grant the stay as sought by Walker, as the power to stay proceedings was limited to affecting the operation or implementation of the reviewable decisions before it. The stay sought by Walker did not relate to those decisions. The AAT also noted that there was no admissible evidence to support the allegations made in Walker's stay application. Therefore, the AAT exercised its discretion under Section 100(a) of the Act to dismiss the applications for Walker's failure to proceed with them within a reasonable time. The AAT emphasised that this discretion is exercised sparingly and only as a matter of "last resort".

The AAT dismissed Walker's application for a stay of the proceedings and dismissed the applications for failure to proceed within a reasonable time. The AAT found that it did not have the power to grant the stay as sought by Walker, as the power to stay proceedings was limited to affecting the operation or implementation of the reviewable decisions before it. The AAT also noted that there was no admissible evidence to support the allegations made in Walker's stay application. The AAT exercised its discretion under Section 100(a) of the Administrative Review Tribunal Act 2024 (Cth) to dismiss the applications for Walker's failure to proceed with them within a reasonable time. The AAT emphasised that this discretion is exercised sparingly and only as a matter of "last resort".

Orders

Orders of the court

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Background

Background to the litigation

On a further note, the Applicant has not as at the date of the finalisation of these reasons furnished any medical evidence to the Tribunal, or for that matter the respondent, which in any way verifies that he was unfit to appear at the Telephone Directions Hearing 19 August 2025. This is contrary to the representations that he would do so in that week or in the following week, contained in his email to the Tribunal referred to above. Had such evidence been produced, one might have had a different view of the appropriate approach to adopt to the applications before it.BACKGROUND Presently, there are 4 applications that have been brought by the applicant in this Tribunal against the respondent seeking relief under the Safety Rehabilitation and Compensation Act 1988 (“the SRC Act”). A brief outline of the applications and the relief sought will be mentioned in the following paragraphs. Application No: 2020/4843 seeks review of a decision made on 15 June 2020 affirming a previous decision made by a delegate of the respondent denying a claim for compensation for the condition described as “adjustment order with anxiety features” allegedly occurring on 24 March 2020. Application No: 2021/7106 seeks review of a decision made on 15 September 2021 which affirmed a previous decision finding that there was no present liability in respect of physiotherapy treatment for an accepted injury of “L1 anterior: compression fracture” with the date of injury said to have occurred on 15 April 2019. Application No: 2022/7640 seeks review of a decision made on 5 October 2021 which affirmed a previous decision denying liability to pay compensation under s 39 of the SRC Act, for a new mattress required by reason of the claimed condition of “L1 anterior: compression fracture” with the date of injury said to have occurred on 15 April 2019. Application No: 2023/3638 seeks a review of a decision made on 11 May 2023 by a Senior Case Manager of the respondent denying compensation for any incapacity payments under s 19 of the SRC Act. The applications have unfortunately progressed very slowly. Applications No 2020/4843 and 2021/7106 were fixed for hearing on an estimate of 5 days commencing 23 May 2022. That hearing did not proceed, and the dates were vacated. They were fixed for another hearing commencing on 18 July 2022. Unfortunately, the matters were not heard on that day and the hearing was vacated yet again. A direction was made on 15 December 2022 that the applications numbered 2020/4843, 2021/7106 and 2022/7640 be heard together. Further directions were made on that day, amongst other things, requiring the applicant to lodge with the Tribunal and give to the respondent a revised Statement of Facts, Issues and Contentions together with witness statements from any person who it was intended to adduce evidence from who had not made a report or statement previously. Further, it obliged the applicant to lodge with the Tribunal and serve on the respondent copies of any further reports, records or other documentary evidence on which he intended to rely at the hearing of those applications.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The application for a stay order was made by the applicant under s 32 (2) of the ART Act. That section provides that on an application by a party to a proceeding for a review of a reviewable decision, the Tribunal may make an order staying or otherwise affecting the operation or implementation of the decision if the Tribunal considers it is desirable to do so for the purposes of ensuring the effectiveness of the review. (Emphasis added). As is apparent from the construction of that section, the power conferred upon the Tribunal to make a stay is confined to making an order staying or otherwise affecting the operation or implementation of the reviewable decision in question before it. An examination of both the orders sought and the grounds for the request contained in the stay application reveal that such a stay sought by the applicant does not affect the operation or implementation of the reviewable decisions presently before the Tribunal, or otherwise relate to them. Those decisions have denied liability to the applicant under the relevant provisions of the SRC Act. If these applications were stayed the reviewable decisions would continue to have full force and effect. It must be recalled that the Administrative Review Tribunal is a product of a statute passed by the Parliament of the Commonwealth of Australia. Its powers are derived from the provisions of the ART Act. There is no inherent jurisdiction such as that conferred upon the courts to regulate their own processes. At best, there are sections such as s 49 of the ART Act which confers upon the Tribunal a discretion in relation to procedure. However, an examination of the language used in that section, it is considered does not confer upon it a power to grant a stay on the grounds sought by the applicant. To suggest it does is straining the proper construction of that language beyond what could possibly have been intended by Parliament. It is considered that if the Parliament of the Commonwealth of Australia intended to confer upon this Tribunal a general power to stay its own proceedings it would have said so by expressly enacting a provision to that effect. For these reasons alone the Tribunal concludes that it does not have the power to grant a stay as sought by the applicant and such application should be dismissed. Having reached that conclusion, however it is appropriate to make several other observations concerning the application. Nowhere in the material is there anything amounting to admissible evidence that supports the contentions contained in the stay application lodged on 13 June 2025 or in the letter apparently sent to the President of this Tribunal and received by the respondent’s lawyers 6 November 2024 being exhibit “JM1” to the Marshall affidavit. It is not necessary for the purpose of these reasons to embark upon an excursion into the rules of evidence or the standard of proof that is required to establish certain allegations. However, it is hardly controversial to note that when one considers the seriousness, gravity or magnitude of the issues, such as those alleged by the applicant in pursuing his application for a stay, the stricter is the proof that is required. Such proof must be clear, cogent and exact.[9] As there is no admissible evidence supporting the allegations made in the stay application this is another reason why it must be dismissed.[9] Cuming Smith & Co Ltd v Westralian Farmers Co-operative Ltd [1979] VR 129 at 147 in which Kaye J reviews several of the well-established authorities on this question.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Applicant:	Peter Walker
Respondent:	FedEx Express
Tribunal Number:	2020/4843, 2021/7106, 2022/7640, 2023/3638
Tribunal:	General Member R Cameron
Place:	Melbourne
Date:	2 September 2025