Draoui v Return to Work Corporation of South Australia

1. The appeal be dismissed as incompetent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 On 7 June 2023 the solicitor then acting for Mr Draoui filed a notice of appeal in this Court seeking to aside orders made by the South Australian Employment Tribunal ('the Tribunal') on 2 June 2023. The Tribunal dismissed Mr Draoui's application to it as an abuse of process pursuant to s 41(1)(c) of the South Australian Employment Tribunal Act 2014 (SA) ('the SAET Act'). That provision authorises the Tribunal to dismiss a proceeding where it believes that a proceeding 'is otherwise an abuse of process'. 2 The immediate question which arises is whether the appeal is competent. 3 Mr Draoui invokes the Court's appellate jurisdiction. The jurisdiction being exercised by the Tribunal was its jurisdiction summarily to dismiss Mr Draoui's application to it as an abuse of process. This Court's jurisdiction to entertain Mr Draoui's appeal is conferred by s 565 of the Fair Work Act 2009 (Cth) ('the Fair Work Act'). It provides: 565 Appeals from eligible State or Territory courts Appeals from original decisions of eligible State or Territory courts (1) An appeal lies to the Federal Court from a decision of an eligible State or Territory court exercising jurisdiction under this Act. (1A) No appeal lies from a decision of an eligible State or Territory court exercising jurisdiction under this Act, except: (a) if the court was exercising summary jurisdiction - an appeal, to that court or another eligible State or Territory court of the same State or Territory, as provided for by a law of that State or Territory; or (b) in any case - an appeal as provided for by subsection (1). Appeals from appellate decisions of eligible State or Territory courts (1B) An appeal lies to the Federal Court from a decision of an eligible State or Territory court made on appeal from a decision that: (a) was a decision of that court or another eligible State or Territory court of the same State or Territory; and (b) was made in the exercise of jurisdiction under this Act. (1C) No appeal lies from a decision to which subsection (1B) applies, except an appeal as provided for by that subsection. Leave to appeal not required (2) It is not necessary to obtain the leave of the Federal Court, or the court appealed from, in relation to an appeal under subsection (1) or (1B). 4 Before this provision can apply it is necessary to conclude that the Tribunal is an 'eligible State or Territory court'. That expression is relevantly defined in s 12 to include a State or Territory court that is prescribed in the regulations. Regulation 1.05 of the Fair Work Regulations 2009 (Cth) provides that for that purpose the South Australian Employment Court is prescribed. Section 5 of the SAET Act provides for the establishment of the Tribunal and its bifurcation into an industrial relations commission known as the Tribunal and a court of record known as the South Australian Employment Court. Section 5 provides: 5 Establishment of Tribunal (1) The South Australian Employment Tribunal is established. (2) The Tribunal will have a part that is the Tribunal in Court Session and, as so established by force of this Act, is a court of record. (3) The Tribunal in Court Session is to be the South Australian Employment Court. (4) The Tribunal will also have a part that is the Tribunal acting as an industrial relations commission. 5 The jurisdiction of the South Australian Employment Court is provided for by s 6(2): (2) Matters within the jurisdiction of the Tribunal will be assigned to the South Australian Employment Court as follows: (a) an Act conferring jurisdiction on the Tribunal may specifically assign matters to the South Australian Employment Court; (b) the rules may (unless to do so is inconsistent with a provision of a relevant Act) - (i) assign matters to the South Australian Employment Court; (ii) assign matters to the South Australian Employment Court for resolution or determination after initial consideration or other steps having been undertaken in that part of the Tribunal that does not sit as the Court; (c) the jurisdiction to try a charge for an offence is assigned to the South Australian Employment Court. 6 The first question is whether the orders made by the Tribunal were made in its capacity as the Tribunal or in its capacity as the South Australian Employment Court. In my view, they were made in its capacity as the South Australian Employment Court. Mr Draoui filed a claim for workers compensation under the provisions of the former Workers Rehabilitation and Compensation Act 1986 (SA) ('the WRC Act'). His claim arose out of his allegation that he had been injured in a motor vehicle accident on 3 December 2001 during the course of his employment. He made two claims for compensation and these were settled by way of consent orders made by the former Workers Compensation Tribunal on 3 and 4 August 2010. On 16 June 2015 Mr Draoui applied to the current Tribunal for an order 'to reopen Workcover claim'. This was treated by the Tribunal as an application under s 110(b) of the Return to Work Act 2014 (SA) ('the RTW Act') for an order to set aside the August 2010 consent orders. Section 110(b) provides: 110 Power to amend or set aside decisions or orders The Tribunal may amend or set aside a decision or order of the Tribunal - (a) by consent of the parties; or (b) if the interests of justice require that the decision or order be amended or set aside. 7 This application was refused by Hannon DPJ on 26 October 2017. His Honour's decision was upheld by a Full Bench of the Tribunal on 22 May 2019. On 14 November 2022 Mr Draoui again filed an application with the Tribunal to reopen the orders of August 2010. It is from the dismissal of that application that Mr Draoui now seeks to appeal. 8 The Tribunal approached the matter on the basis that it was sitting as the South Australian Employment Court as the cover sheet to its reasons demonstrates. I agree that this was the case. The application to reopen or set aside the orders of August 2010 is to be characterised as an application to the body that made the orders. At the time of the August 2010 orders Mr Draoui's relevant entitlements were provided for by the WRC Act which was repealed and replaced by the RTW Act on 1 July 2015. 9 By cl 29 of sch 9 of the RTW Act it was provided, in effect, that the RTW Act applied in relation to injuries that were compensable under the former WRC Act. In the way common to most State workers compensation legislation, the RTW Act erects a scheme which provides for payments of workers compensation or, in the alternative, the pursuit of common law rights. Under the RTW Act, applications for workers compensation are made under Division 1 of Part 4. By r 11(c) of the South Australian Employment Tribunal Rules 2022 (SA) ('the SAET Rules'), proceedings under the RTW Act (subject to a presently irrelevant exception) are assigned to the South Australian Employment Court for hearing and determination after conciliation in the part of the Tribunal which does not sit as that Court. This conferral of jurisdiction by the SAET Rules is in accordance with s 6(2)(b)(ii) of the SAET Act set out above. Consequently, I consider that the Tribunal's jurisdiction to revisit the orders of August 2010 lay in the jurisdiction of the South Australian Employment Court and that the orders under appeal were made by that Court. 10 However, Mr Draoui's application to the Tribunal did not in any way invoke or rely upon the provisions of the Fair Work Act and, indeed, there is no aspect of the matter which is in federal jurisdiction. On no view did the Tribunal, therefore, exercise jurisdiction under the Fair Work Act. Consequently, this Court has no jurisdiction. 11 This makes it unnecessary to determine which of ss 565(1) or (1A) applies since both have as a prerequisite an exercise of jurisdiction under the Fair Work Act. Putting to one side the convoluted drafting of these provisions, if it matters I consider that it is sub-s (1) which applies. Sub-section (1A)(a) deals with the position of courts other than this Court and sub-s (1A)(b) merely refers one back to sub-s (1). 12 In any event, the result is the same: this Court has no jurisdiction to entertain Mr Draoui's appeal. 13 Turning then to matters of procedure, it appears that Mr Draoui has not served the Respondent with the notice of appeal since no notice of appearance has been filed. A single judge in the appellate jurisdiction has the power to give summary judgment: s 25(2B)(aa) of the Federal Court of Australia Act 1976 (Cth). This extends to the dismissal of an appeal for want of jurisdiction: Pirini v Minister for Home Affairs [2018] FCA 1812 at [7] per Bromwich J. 14 Part 36 of the Federal Court Rules 2011 (Cth) ('FCR') regulates appeals. Rule 36.11 provides: 36.11 Directions (1) A party may apply to the Court, constituted by a single Judge, for directions in relation to the management, conduct and hearing of an appeal. (2) Without limiting subrule (1), a party may apply to the Court for an order for the following: … (e) giving summary judgment; 15 Rule 1.40 provides: 1.40 Exercise of Court's power The Court may, at any stage of the proceeding, exercise a power mentioned in these Rules in the proceeding: (a) on its own initiative; or (b) on the application of a party, or a person who has a sufficient interest in the proceeding. 16 Since r 36.11(2)(e) mentions a power to give summary judgment, the effect of r 1.40(a) is that the Court may exercise that power on its own initiative. 17 Next, r 36.41(1)(d) permits, in an appeal proceeding, a party to apply for an order that an application for summary judgment be dealt with without an oral hearing. By reason of r 1.40 this power too may be exercised by the Court on its own initiative. 18 It is therefore open to this Court to determine the question of the competency of Mr Draoui's appeal before the appeal is heard, to do so on the papers, and to do so at its own initiative without an application by the Respondent to the appeal. 19 In my view, subject to the requirements of procedural fairness, both powers should be exercised since the appeal is plainly not within this Court's jurisdiction. A Registrar of the Court emailed Mr Draoui's then solicitor on 27 June 2023 indicating that the Court did not appear to have jurisdiction. The email was in these terms: Dear Ms Stokes The above matter has been triaged by the Court in accordance with the temporary process in place while Practice Note APP1: Case Management of Full Court and Appellate Matters is under review following the recent appointment of Chief Justice Mortimer. The matter purports to be an appeal from the South Australia Employment Tribunal. As the matter below seeks to reopen a workers' compensation claim pursuant to South Australian legislation, it is unclear how any appeal from the decision lies to the Federal Court of Australia. While the Tribunal is an eligible State or Territory court from which an appeal to this Court lies under s 565(1) of the Fair Work Act 2009 (ie, where it is exercising jurisdiction under that Act), in this matter, no issue arises under that Act. In those circumstances, please advise whether the matter is pressed. If you maintain that this Court does have jurisdiction to hear the appeal, please advise how it is said that jurisdiction arises. We would appreciate your response as soon as possible, but in any event by no later than close of business this Friday, 30 June 2023. Kind regards Tali 20 On 28 June 2023 the solicitor replied to the Court in these terms: Dear Ms Rubenstein I am writing regarding the above. Unfortunately I have recently been advised by Law Society to cease acting as a lawyer or give advice. In light of this Mr Draoui will need an extension of time to be able to instruct a new lawyer and gain appropriate advice from them as to how to proceed with this matter. Please provide an extension of 2-3 weeks to allow him time to follow up in regards his application. Thank you Regards Heather Stokes 21 On the same day, Mr Draoui wrote to the Court and said this: Dear Ms Rubinstein In answering your email to my lawyer, Heather Stokes, sadly I have to inform you that she has been advised by the law society of SA not to give advice or act as a lawyer because of her illness related to an accident. However I believe my application has been filed and accepted by the federal court. If you need us to answer your request here, I need an extension of time to appoint a new lawyer to advise my whether the federal court has jurisdiction and I'm not a lawyer but I believe when my application has been filed and accepted that the federal court it should hear my case. Also, should this not be left to the hearing judge to decide. I need to extension for 2-3 weeks. Kind regards Abdou Draoui 22 Given this situation, it was apparent to me as at 4 July 2023 when these reasons were initially composed that procedural fairness required that Mr Draoui be given an opportunity to retain a new lawyer so as to make submissions. However, having regard to the reasons given by the Tribunal, it is apparent that Mr Draoui is a serial litigant of some sophistication. This does not mean he is not entitled to procedural fairness but it does legitimately inform the content of the requirements of procedural fairness. On 5 July 2023 I caused the Registry to write to Mr Draoui requiring him to put on any submissions on the question of competency by 19 July 2023. The email written by the Registry to Mr Draoui was in these terms: Good Morning, This appeal has been referred to Perram J for case management. It would appear from the decision of the Tribunal that it was not exercising jurisdiction under the Fair Work Act 2009. This Court's relevant jurisdiction is conferred by s 565 of that Act and only extends to appeals where the Court below was exercising jurisdiction under that Act. On its face, the Tribunal was not exercising any jurisdiction under the Act in refusing to review the orders made on 4 August 2010 by the former Workers Compensation Tribunal. Please provide submissions to this email address explaining why the Court has jurisdiction by 19 July 2023. If you have not retained solicitors by then, these submissions should be by yourself. If solicitors have been retained, they should be by your solicitors. For your information, the Court is considering determining the competency of your appeal in advance of the appeal under r 36.72(3) of the Federal Court Rules 2011, doing so of its own motion under r 1.40 and doing so without an oral hearing under r 36.41(1)(d). Your submission should explain why the matter is within the jurisdiction of the Court under s 565(1) and why the Court should not dismiss your appeal on the papers as incompetent. Kind regards, Bianca 23 After multiple extensions of time on account of Mr Draoui being unable to retain a lawyer, the following communication was received from Mr Draoui on 23 August 2018: To the Honourable Judge Perram Unfortunately I have not yet completed the submission as asked, because all of the lawyers I have seen concerning this are asking for large amounts of money to be placed in their trust accounts. I am an aged pensioner and have run out of money to fund lawyers. Everyone of them believes that the federal court has the jurisdiction to hear my case, because it does not come under fair work Australia rules, as at the time of the accident I was self employed. The only submission I can send you is the one I sent to the Work Cover tribunal, however if your honour would allow me extra time I hope to gather the funds to engage a lawyer to complete the submission for me. Kind regards Abdou Draoui 24 Attached to this email was Mr Draoui's submission to the Tribunal below which did not refer to this Court's jurisdiction. 25 This submission does not persuade me that I should not take the course outlined earlier in these reasons. I will therefore determine the matter on the papers. Doing so, I conclude that the appeal is incompetent and dismiss it. There should be no order as to costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.