Fletcher v TNT Australia Pty Ltd

Summary dismissal 5 Rule 33 of the Federal Court Rules 2011 (Cth) ("Federal Court Rules"), in Division 33.2, deals with the conduct of proceedings such as the present - appeals under s 44 of the AAT Act. Rules 33.32 and 33.33 provide: 33.32 Application to dismiss appeal (1) A respondent to an appeal may apply to the Court for an order that the appeal be dismissed for the failure by the applicant for the appeal to do any of the following: (a) comply with a direction of the Court; (b) comply with these rules; (c) attend a hearing relating to the appeal; (d) prosecute the appeal. (2) An application under subrule (1) must be served on the applicant: (a) at the applicant's address for service; or (b) personally. Note: The Court may make orders subject to conditions - see rule 1.33. The Court may fix a time for the doing of an act and, in default, order the appeal be dismissed. 33.33 Absence of party (1) If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that: (a) if the absent party is the applicant to the appeal: (i) the appeal be dismissed; or (ii) the hearing be adjourned; or (b) if the absent party is the respondent to the appeal: (i) the hearing proceed generally or in relation to a particular claim for relief in the appeal; or (ii) the hearing be adjourned. (2) If an appeal is dismissed because the applicant to the appeal was absent, the applicant may apply to the Court for an order: (a) to set aside the dismissal; and (b) for the further conduct of the appeal. Note: The Court can make an order on its own initiative - see rule 1.40. 6 I indicated in the earlier judgment that I would entertain an application under rule 33.32 and/or 33.33 if the applicant did not comply with the orders which I then made. I am satisfied that I could make an order under rule 33.32 and, if necessary, dispense with the requirements of rule 33.32(2) (see rule 1.34). However, it is sufficient to refer to rule 33.33. It will be apparent from what appears hereunder that the proceedings, in any event, probably faced insuperable problems and were almost certainly misconceived but rule 33.33 suffices as an immediate foundation for the order which I made dismissing the application.

Background 7 The applicant, Mr Fletcher, was employed by the first respondent ("TNT") as a warehouse operator for about five years until 13 August 2010 when he resigned. About one year after resigning his employment, Mr Fletcher claimed compensation for an injury allegedly suffered during his employment with TNT involving his back and neck. The claim was refused and he sought review of the decision by the AAT. The AAT also refused the claim. 8 In its decision (Fletcher and TNT Australia Pty Ltd [2013] AATA 173), the AAT first examined whether Mr Fletcher had suffered a relevant injury within the meaning of s 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act"). That inquiry necessitated consideration of whether Mr Fletcher had been subject to a sudden or identifiable physiological change, a disease, an ailment or an aggravation of an ailment. The AAT concluded that Mr Fletcher's claims for compensation were based on the contention that his employment with TNT aggravated a pre-existing back condition. The AAT accepted that since 2001 Mr Fletcher had, in fact, suffered an aggravation of a pre-existing back condition. 9 Then the AAT turned to examine whether Mr Fletcher's employment with TNT had caused the aggravation. After examining the available material evidence the AAT expressed the following conclusions: 33. The weight of medical evidence is that the degree of symptoms reported by Mr Fletcher is inconsistent with the findings on clinical examination and the radiological evidence. 34. Drs Castle and Panjratan were unable to identify the cause of Mr Fletcher's reported symptoms; Dr Carr thought an internal disc was possibly to blame; Dr Schutz thought the most likely cause was mild disc degeneration. While there is a range of medical opinion about the underlying cause of Mr Fletcher's symptoms, none of the experts have stated that employment with TNT was a contributory factor. Dr Carr, who thought an internal disc disruption might be the cause of Mr Fletcher's symptoms, did not suggest that that pathology was work related. 35. While I do not accept as claimed by Mr Fletcher for the first time in these proceedings that on occasion he was required to lift parcels of up to 60 kilograms unaided, I accept as conceded by his manager that from time to time parcels weighing more than 30 kilograms found their way into his section. It is not implausible that work of the nature undertaken by Mr Fletcher, which was heavy in nature and involved, among other things, repeated lifting, bending and prolonged standing, could have aggravated Mr Fletcher's long-standing back problems. While some of the experts thought work of this type made Mr Fletcher vulnerable to back injury and was therefore best avoided, none suggested that this type of work contributed to Mr Fletcher's underlying back pathology (however described). … 38. While none of the experts are entirely confident about the exact cause of Mr Fletcher's reported symptoms, in my opinion the most likely cause is, as Dr Schutz believes, minor disc degeneration. There is no evidence to indicate that that degeneration was contributed to, or accelerated or worsened by, Mr Fletcher's employment. Given the history of a gradual worsening which continued after he left TNT, I could not be satisfied that employment was a significant contributory factor to the symptoms of that condition, or the gradual worsening of the symptoms experienced. 39. Not being satisfied that Mr Fletcher's back condition or any aggravation of either the condition itself, or its symptoms, were contributed to, to a significant degree, by his employment with TNT, I am unable to find that he suffered a disease, or an aggravation of a disease, for the purpose of s 5B of the Act. 10 Then the AAT examined a claim by Mr Fletcher that he suffered a disease relating to his neck arising out of his employment with TNT. The AAT said: 41. There is limited evidence about Mr Fletcher's neck. The initiating referral made in 2009 to Dr Carr was in respect of low back pain and the earlier left foot injury, and not in respect of any neck complaints. The five progress reports prepared by Dr Carr between July 2009 and October 2011 made no mention of any neck symptoms. Nor is there any reference to neck symptoms in the histories taken by Drs Panjratan and Castle. Similarly the assessment reports prepared by Recovre (on 21 December 2007, 7 December 2009, and 7 January 2010), made no reference to any neck complaint. 42. The only evidence of Mr Fletcher complaining of any neck symptoms is the history given to Dr Schutz in 2012, the questionnaires completed at the request of the chiropractor between October 2007 and September 2010, and the compensation claim form submitted by Mr Fletcher in June 2007. In his report of 3 October 2012 Dr Schutz recorded that Mr Fletcher became aware of neck symptoms and sought treatment while travelling in Brazil in 2009. In the questionnaires, in answer to the question "where do you have pain", Mr Fletcher ticked the box for the neck as well as other body parts. In the compensation claim form submitted in 2007, he described his symptoms as being"sore foot, back and neck". 43. While as Mr Fletcher concedes his back has been the focus of his concerns he nonetheless has not provided a satisfactory explanation for failing to mention any neck symptoms to either the assessors from Recovre, his GP and four of the five practitioners who assessed him in relation to his compensation claim. The limited evidence of reports of neck symptoms raises doubts about the reliability of Mr Fletcher's claim to have suffered neck problems. Coupled with the absence of a diagnosis, I cannot be satisfied that he suffered an "ailment". In reaching that conclusion I am mindful of the broad definition given by the Act to that term: any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). 44. In case I am wrong, I will proceed to consider whether Mr Fletcher's employment contributed to a neck ailment, which for current purposes I will treat as being occasional neck pain and/or minor cervical spine degeneration. 45. As noted none of the experts who have examined Mr Fletcher made a diagnosis of any neck condition. On clinical examination Dr Schutz found Mr Fletcher's neck to be normal. In his opinion the results of the X-ray of the cervical spine taken in Brazil were also normal. He thought the reference in the report of that X-ray to "straightening of the cervical spine" was not suggestive of any abnormality. At its highest he thought it possible that Mr Fletcher might suffer minor degeneration of the cervical spine. 46. Even if accepted that Mr Fletcher experienced neck pain from time to time while employed by TNT, there is no evidence to suggest that that pain or any cervical spine degeneration, was contributed to, in some way, by his employment. Having regard to the matters listed in s 5B(2) and the medical evidence I am not satisfied that employment was a significant contributory factor to any neck ailment Mr Fletcher might suffer. 11 During the course of its decision the AAT also noted that Mr Fletcher had complained about urological problems. The AAT said, about this issue: 26. Any other matters affecting Mr Fletcher's health (s 5B(2)(e)): Mr Fletcher suffers from a number of urological conditions, which he believes are caused by his employment with TNT. There is no medical evidence to suggest that these conditions contributed to Mr Fletcher's back problems or were in any way related to his employment. 12 All of the findings to which I have referred involved the formation of judgments about the factual situation, based on analysis of the evidence, including evidence from Mr Fletcher and expert evidence. The making of those judgments about the merits of Mr Fletcher's claim for compensation is not within the role of this Court.

Joinder of the third respondent 13 A claim for compensation against TNT became available under the SRC Act when TNT became a licenced corporation under the SRC Act on 1 July 2008. TNT was therefore a proper respondent to a claim under the SRC Act, a proper party to proceedings before the AAT and a proper party to proceedings in this Court if the present application was a competent one. 14 Mr Fletcher commenced the proceedings in this Court on 3 April 2013. He named, as respondents, not only TNT and the AAT, but also Comcare, the statutory insurer under the SRC Act. On 7 August 2013, Comcare applied to be discharged as a respondent. 15 Comcare pointed out that it had no involvement in the decision to refuse Mr Fletcher's claim for compensation, it was not a party to the proceedings in the AAT and no issues or facts were identified which might make it appropriate or necessary that Comcare be a party to the proceedings in this Court. 16 Mr Fletcher was given an opportunity to consent to Comcare's application to be removed as a party, but refused to do so. 17 On the information before the Court, Comcare should not have been joined as a party, and was entitled to be released from further participation. Owing to the procedurally unsatisfactory course taken by the applicant, an opportunity to deal with Comcare's interlocutory application in the applicant's presence did not arise. Had it done so I think it is inevitable that Comcare would, as it submitted, have been removed as third respondent. 18 When I dismissed the application on 9 September 2014, counsel for Comcare informed me that Comcare did not seek any order for costs arising from its unnecessary and inappropriate joinder to the proceeding.

Objection to competency 19 An appeal afforded by s 44 of the AAT Act is an appeal on a question of law. This Court has repeatedly emphasised the jurisdictional limitation imposed by the necessity to identify a true question of law as the proper subject of the appeal. 20 The question of law stated by the notice of appeal is as follows: TNT has aggravated back & neck injuries & urological due to their discrimination & hatred. 21 This assertion does not identify a question of law. TNT objected to the competency of the appeal, apart from resisting it in any event. 22 Had the application proceeded this objection would have required attention. There is no present answer to it.

Costs 23 At the hearing on 9 September 2014, TNT applied for costs. It sought those costs on an indemnity basis from 20 August 2013, and on a party/party basis prior to that date. 24 On 6 August 2013 a letter was sent to the applicant by post and by email, a method which he has used to communicate in relation to the proceedings. 25 The letter attached a notice of offer to compromise in accordance with rule 25.01 of the Federal Court Rules. 26 The notice of compromise offered to release the applicant from any obligation to pay costs if he agreed to his application being dismissed. The letter of 6 August 2013 explained why the application was not competent, in that it failed to identify any question of law as required by s 44 of the AAT Act (or raise a ground of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth)). 27 Those objections were well made. It appears they were never attended to. 28 Although the applicant was self-represented, that provides no immunity from an order for indemnity costs in an appropriate case (see Manolakis v Carter [2008] FCAFC 183 at [77]; see also Ogawa v University of Melbourne (No 2) [2004] FCA 1275 at [40]-[42], Rahman v Ashpole [2007] FCA 883 at [28]). 29 Costs are not awarded as punishment, but as a measure of compensation to avoid unnecessary prejudice to a party (Hamod v New South Wales (2002) 188 ALR 659 at [20]). When an offer of compromise has been made the Federal Court Rules may establish a presumptive entitlement to indemnity costs. Rule 25.14(2) provides: 25.14 Costs where offer not accepted … (2) If an offer is made by a respondent and an applicant unreasonably fails to accept the offer and the applicant's proceeding is dismissed, the respondent is entitled to an order that the applicant pay the respondent's costs: (a) before 11.00 am on the second business day after the offer was served - on a party and party basis; and (b) after the time mentioned in paragraph (a) - on an indemnity basis. 30 In light of the defects in the proceedings identified in the letter of 6 August 2013, I am satisfied that it was unreasonable of the applicant not to accept the offer unless he proposed to take prompt steps to identify a question of law which would give the Court jurisdiction to entertain the proceedings. It should be noted that TNT had already, on 2 August 2013, filed an objection to the competency of the proceedings identifying the same defect. 31 In the present case, TNT sought an order for indemnity costs from the date on which its offer expired - 20 August 2013. I am satisfied that rule 25.14 creates a presumptive right to indemnity costs from at least that time, and there is no apparent reason to withhold such an order.

Further orders 32 In addition to the order made on 9 September 2014, that the application be dismissed, I will order that the applicant pay the costs of the first respondent on a party/party basis up to and including 19 August 2013, and costs on an indemnity basis on and from 20 August 2013. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.