JACEK GUSE v COMCARE

REASONS FOR JUDGMENT THE COURT: This is an unusual appeal. It is brought by the appellant, Mr Guse, against an order made by Burchett J on 4 June 1997. On that day Burchett J allowed an appeal by Mr Guse brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). On 4 June 1997 Mr Guse appeared before Burchett J representing himself on the hearing of the appeal. His Honour said to him words to the effect "I intend to give orders in your favour, Mr Guse, so I need not hear from you". His Honour then made the order allowing the appeal, and consequential orders setting aside an order of the Administrative Appeals Tribunal ("the Tribunal") which had dismissed Mr Guse's proceedings, and remitting the matter to the Tribunal, differently constituted, to be dealt with according to law. Although Burchett J allowed his appeal, Mr Guse seeks to appeal against the order for remittal on the ground that he was denied a hearing in breach of fundamental principles of natural justice. To understand the grounds of appeal it is necessary to refer briefly to part of the earlier history of proceedings between Mr Guse and the respondent, Comcare. The information before this Court, which in some respects is not complete, discloses that Mr Guse sustained a whiplash injury on 21 April 1982 in respect of which it was initially accepted that he was entitled to compensation under the provisions of the legislation then in effect, the Compensation (Commonwealth Government Employees) Act 1971 (Cth). The Act has since been replaced by the Safety Rehabilitation and Compensation Act 1988 (Cth). Mr Guse's original claim was made on 18 May 1982, but a further claim for partial incapacity was made on 13 August 1987, in which Mr Guse sought compensation for impairment of his earning capacity as a pianist, a capacity additional to that exercised by him in his Commonwealth employment with the Special Broadcasting Service and the Department of Immigration and Ethnic Affairs at the time of his injury. On 31 January 1989, a Comcare delegate found that liability to pay compensation in respect of Mr Guse's "soreness to the right hand side of the body and the lump on the head", being the description of the injury which occurred on 21 April 1982, had ceased on and from 11 February 1988. However, on 18 May 1992, Comcare, on reconsideration, set aside the determination of 31 January 1989 and determined that Comcare continued to be liable to pay compensation in respect of Mr Guse's "cervical strain condition". On 29 November 1991, a Comcare delegate found that the applicant, if entitled to compensation, was entitled to $32.78 per week (as indexed over time) in respect of his incapacity to work as a pianist arising from the injury on 21 April 1982. On 25 May 1992, Comcare determined, on a reconsideration of the decision of 29 November 1991, that the applicant was entitled to $81.73 per week (as indexed over time) in respect of that incapacity. On 3 August 1992, Mr Guse applied to the Tribunal for a review of the two Comcare decisions made on 18 May 1992 and 25 May 1992. On 19 November 1993 the Tribunal published its decision in the following terms: "The decision under review is set aside and this matter remitted to the Respondent with the direction; 1. That it reconsider the rate of compensation to be paid to the Applicant as and from the first day of December 1988 with regard to these reasons. 2. The Respondent is to pay the Applicant's costs." On 8 December 1993, Comcare appealed to this Court pursuant to s 44 of the AAT Act, against the decision of the Tribunal of 19 November 1993. Mr Guse cross appealed against the decision. The appeal and cross appeal came on for hearing before Einfeld J on 5 July 1994. The transcript of the hearing of the appeal was before this Court. Both parties informed his Honour that they sought to have the decision of the Tribunal set aside. Counsel for Comcare informed his Honour that Mr Guse had been injured in a compensable journey accident in April 1982 in which he suffered a persistent whiplash type of injury. Counsel said: "There is no dispute that he is incapacitated from playing the piano". Mr Guse sought to correct this statement by pointing out that he could still play a piano but was claiming for an incapacity to earn a living as a pianist. Counsel for Comcare also said that "...the 18th May decision restored liability to compensate which is important because in the dim, dark past, there had been a denial of liability and then Comcare changed their minds about that" and that: "...the real issue as your Honour has just indicated is to what extent should he [Mr Guse] be compensated for his incapacity to earn as a piano player? That is the real issue." Comcare sought to have the determination of the Tribunal set aside on the ground that the Tribunal had incorrectly applied provisions of the Compensation (Commonwealth Government Employees) Act 1971 and the Safety Rehabilitation and Compensation Act 1988, with the result that it had over-assessed the entitlement of Mr Guse to weekly compensation in its determination of 25 May 1992. Mr Guse, on the other hand, sought to have the determination of 25 May 1992 overturned on the ground that it underestimated the amount of his weekly compensation. There was also a question whether the commencement of weekly payments should have commenced at a date earlier than that to be inferred from the Tribunal's determination, and whether he was entitled to interest on past payments. After hearing the parties, and with their apparent concurrence, Einfeld J made an order, on 5 July 1994, in the following terms: "The decision of the Administrative Appeals Tribunal of 19 November 1993 be set aside by consent and remitted to the Tribunal for a rehearing on the issue of the compensation to be paid to Mr Guse as a result of his employment injuries." The proceedings were relisted for a directions hearing before a Tribunal constituted by a Senior Member on 7 February 1995. Whilst Mr Guse has on many hearings appeared on his own behalf, on that directions hearing he was represented by a solicitor. Prior to the hearing the solicitor had written to the Australian Government Solicitor, acting for Comcare, arguing that Einfeld J's order was capable of being interpreted in either of two ways, namely as either: "(a) Restoring the status quo which existed before the Tribunal's decision. In this case our client's application for review of 18 May, 1992 and 25 May, 1992 Comcare decisions is before the Tribunal as it was previously. The fact that costs awarded to our client by the AAT have also been set aside by Judge Einfeld seems to support this alternative; or (b) Ordering that a specific issue be considered by the Tribunal, rather than Comcare's decisions which were the subject of our client's application for review. Judge Einfeld altered the scope of the proceedings before the Tribunal from the original application for review to the rehearing of a particular issue. In this case: (i) Our client's application for review of the 18th May, 1992 and 25th May, 1992 decisions has been dealt with by the Tribunal; (ii) Judge Einfeld upheld submissions on appeal concerning liabilities in this case and therefore the only issue to be reheard was the amount of compensation to be paid; and (iii) The case now proceeds not on the basis of the application for review but on the basis of Judge Enfield's order. Our client argues that the second of the above alternatives seems to be confirmed by the fact that Judge Einfeld awarded costs of the appeal to our client." When the issue was raised at the directions hearing, the Senior Member pointed out that the Tribunal was primarily concerned to ensure that the outcome of the decisions under review was correct. As there appeared to be no continuing dispute that Mr Guse was entitled to compensation at a rate to be determined for his incapacity in relation to his ability to play the piano, there seemed no point in reviewing the decision of 18 May 1992. However the solicitor for Mr Guse made it clear that Mr Guse wished to have both the decision of 18 May 1992 and the decision of 25 May 1992 reviewed. Mr Guse sought a review of both decisions as he was dissatisfied with the process of reasoning in decisions leading up to the decision on liability in his favour made on 18 May 1992. After hearing the parties, the Senior Member on 7 February 1995 gave a number of directions, the first two of which read: "1. The decisions under review are the reconsideration decisions of the Respondent dated 18 May 1992 and 25 May 1992 respectively and that the Consent Orders of the Federal Court are effectively to allow the Tribunal to rehear and decide in respect of the reviewable decisions only. 2. The Tribunal will proceed to a hearing de novo and will allow new evidence to be taken in respect of the reviewable decisions." The remainder of the directions set out a number of steps and a timetable to be followed by the parties to prepare the matter for the rehearing. From 8 March 1995 Comcare sought to obtain from Mr Guse, by summons in the nature of a subpoena, employment records and tax material going back to 1 January 1981. The first summons issued appeared to have been irregular, and a second summons was issued. Mr Guse objected to the production of the documents on a number of grounds, including relevance which Burchett J observed were "simply wrong". In the course of the interlocutory hearings, Mr Guse also sought to have the Tribunal differently constituted on the ground that the Presiding Member had shown bias towards him. To that end two applications were made by him to the President of the Tribunal pursuant to s 21A of the AAT Act to have the Tribunal reconstituted. Both those applications were refused. On 1 June 1995 and again on 28 June 1995, there was a lengthy debate in the course of directions hearings, mainly between the presiding Tribunal Member and Mr Guse, concerning the validity of the then current summons to produce documents. In the course of that debate Mr Guse apparently became heated. Burchett J, in reasons given for setting aside the order of the Tribunal under appeal, said: "[Mr Guse], of course, having regard to the history of the case, may well have been in a very emotional state, and he was at all the disadvantage of a litigant conducting his own case, a case moreover involving allegations of his own psychiatric disabilities. However, the situation also put the Tribunal in a position of great difficulty. Heated debate is not conducive to calm decision-making, and the Tribunal might have been well advised to have adjourned to formulate its decision in a calmer atmosphere. What it did was to make an order on the spot in Draconian terms." The Tribunal's order of 28 June 1995 directed Mr Guse to serve on the respondent and lodge with the Tribunal by certified mail on or before the end of business on 13 July 1995 all documents in his possession, custody or control relating to his employment at any time and in any capacity from 1 January 1981 to the present time, including documents relating to any business or partnership with which he was currently associated, or which he had been associated with from 1 January 1981. The Tribunal went on to state: "In the event that the Applicant fails to carry out this Direction he is hereby advised that the Tribunal will proceed to dismiss his application pursuant to Section 42A(5)(b) of the Administrative Appeals Tribunal Act 1995 without the matter being listed for any further hearing." Mr Guse approached a firm of solicitors to act on his behalf on 12 July 1995, and the solicitors requested an extension of time to familiarise themselves with the documents possessed by Mr Guse and to advise him. The Tribunal issued a further direction in writing, dated 17 July 1995, extending the time for compliance with the earlier direction to 20 July 1995. By 21 July 1995 there had been no documents filed with the Tribunal by Mr Guse. On that day, without further reference to Mr Guse, the Tribunal issued a direction that Mr Guse's application be dismissed pursuant to s 42A(5)(b) of the AAT Act, without proceeding to a review of the decision. The direction was amended on 24 July 1995 but its effect remained unaltered. Relevantly, s 42A(5) provides: "If an applicant for review of a decision fails within a reasonable time: ... (b) to comply with a direction of the Tribunal in relation to the application; a presidential member or senior member, on behalf of the Tribunal, may dismiss the application without proceeding to review the decision." Burchett J considered that s 42A(5)(b), consistently with observance of the principles of natural justice, cannot be implemented simply upon an ex parte statement that the applicant has not complied with a direction, without giving the applicant any opportunity to explain or advance reasons why the matter should nevertheless proceed. The discretion granted to the Tribunal under s 42A(5)(b), in his Honour's view, by its very nature, demanded that the Tribunal consider, after the default had occurred, whether in the circumstances then obtaining, "a reasonable time" had elapsed, and whether the proper remedy was dismissal of the application, or taking some other course such as adjourning the proceeding or making some other order to secure compliance. His Honour therefore allowed the appeal, and, as earlier recounted, directed that "the matter be remitted to the Administrative Appeals Tribunal, differently constituted, to be dealt with according to the law", and made an order that Comcare pay Mr Guse's costs of the appeal. It is against this background that the grounds of appeal and the orders sought by Mr Guse must be considered. It is convenient to discuss the grounds of appeal first. The grounds, as pleaded in the notice of appeal, read: "1. The appellant was denied a hearing in this appeal before His Honour gave his orders, in breach of fundamental principles of natural justice. 2. The order remitting the matter to the Tribunal cannot be complied with according to law, as its effect is to reinstate an application for review, and as such it is inconsistent with the order by Einfeld J on 05/07/94 in this case, which directs the tribunal to rehear a specific issue and which has not been set aside. As a result the Tribunal is required to proceed contrary to a Court order. 3. The order to remit the matter exceeds the jurisdiction of the Court, in that it requires of the Tribunal to proceed in respect of an application previously (sic) decided by it under section 43 of the Administrative Appeals Tribunal Act 1975. 4. The order to remit the matter exceeds the jurisdiction of the Court, in that it compels the Tribunal to proceed contrary to a finding of the Tribunal to the effect that the matter before it was never properly before Comcare. 5. The order to remit the matter exceeds the jurisdiction of the Court, in that it requires of the Tribunal to proceed to review a determination of which the Court, the Tribunal and Comcare are aware of being incorrect and baseless. 6. The order to remit the matter is seeking to deny the appellant natural justice, in that the appellant's claim for compensation cannot be determined in accordance with the relevant law, and ever since Justice Einfeld set aside the decision of the tribunal and remitted the matter to the Tribunal, the purpose of proceedings in this case is merely to deny the appellant the right to a review of a determination of his claim on merits, by forcing the tribunal to determine his claim in disregard of the law." As to ground 1, Burchett J did not call upon Mr Guse as he announced that he would allow the appeal instituted by Mr Guse. In the usual case, the course adopted by his Honour would have been unexceptional. However, the grounds of appeal, and the argument addressed to this Court, show that the case is an unusual one because Mr Guse seeks to have this Court determine issues and make orders that are beyond the jurisdiction of the Court. In substance, it would seem his complaint that he suffered injustice by not being heard arises from his belief that Burchett J should have decided grievances which Mr Guse holds about the treatment of his compensation claim by Comcare. Indeed, in the course of argument, Mr Guse said that his main interest was not so much in securing the compensation to which he claims he is entitled, but in taking action against those he holds responsible (including members of the Tribunal and Judges of this Court) for what he says is the failure to process his claim properly. Regrettably, Mr Guse is mistaken in his belief that Burchett J had power to consider other issues beyond the question of law raised by the appeal, namely whether the direction of the Tribunal made on 21 July 1995, as amended on 24 July 1995, dismissing Mr Guse's application without proceeding to review the underlying decisions was properly made in the circumstances of the case, pursuant to s 42A(5)(b) of the AAT Act. The Notice of Appeal filed by Mr Guse on 18 August 1995 identified the decision against which he appealed as the decision of the Tribunal made on 21 July 1995, as amended on 24 July 1995, whereby the Tribunal directed that Mr Guse's application be dismissed pursuant to s 42A(5)(b) of the AAT Act. The only issue Burchett J had jurisdiction to determine, under s 44 of the AAT Act,was whether the direction was properly made. Burchett J did not breach any rule of natural justice in not hearing the appellant since he proposed to grant the only relief available to Mr Guse on the appeal. For example, Mr Guse had sought an order that Comcare pay him compensation to be assessed by the Court for non-economic "damages" suffered by him in the course of Comcare's performance of its functions, and an order that the compensation to be paid to him as a result of his employment injury be decided by the Court or, alternatively, that the assessment of compensation be remitted to Comcare with enumerated directions regarding that assessment. On the appeal then before the Court, the Court had no jurisdiction to grant any of these remedies. Ground 2 of the notice of appeal appears to raise an ancillary ground, namely, that the order made consequent upon allowing the appeal to remit the matter to the Tribunal (differently constituted) was inappropriate, and to that extent the failure to hear Mr Guse caused him an injustice. Ground 2 misapprehends the effect of the order made by Burchett J. The order set aside the decision of the AAT to dismiss Mr Guse's application without conducting a review on the merits pursuant to s 42A(5)(b). The order for remittal had the effect merely of returning the proceedings to the Tribunal to continue the hearing which was brought to a premature end by the order for dismissal. The order for remittal in no sense sought to depart from or modify the order of Einfeld J made on 5 July 1994. The order made by Einfeld J falls into two parts. First, the order by consent set aside the decision of the Tribunal made on 19 November 1993. That decision was one made on Mr Guse's application to review the Comcare decisions of both 18 May 1992 and 25 May 1992. By setting aside the decision of the Tribunal on that application, the review sought by Mr Guse of both decisions of Comcare remained to be determined. The second part of the order of Einfeld J, by its terms, remitted "the matter", that is the application to review both Comcare decisions, to the Tribunal "for rehearing on the issue of the compensation to be paid to Mr Guse as a result of his employment injuries". Plainly, the order was expressed in those terms to reflect the fact that the decision of 18 May 1992 which restored a finding of entitlement to compensation in favour of Mr Guse, whilst the subject of an application for review, was not challenged by Comcare. It is important to note that, when the matter was relisted for directions before the Tribunal on 7 February 1995, it was Mr Guse, through his solicitor, who required that both decisions be subject to review. It was this stance that led to paragraphs 1 and 2 of the directions of 7 February 1995 earlier set out. In these circumstances, Mr Guse cannot be heard to complain that the Tribunal proposes to embark upon a review requested by him of both decisions. It always remains open to Mr Guse to accept the stated position of Comcare, namely that it does not seek to depart from the decision of 18 May 1992 establishing his entitlement to compensation. As to ground 3 of the notice of appeal, the order of Burchett J did not exceed the jurisdiction of the Court. The effect of the order for remittal required the Tribunal to proceed with the hearing directed by the order of Einfeld J. That order did, in one sense, require the Tribunal to proceed in respect of an application previously decided by it under s 43 of the AAT Act. However, it did so because the earlier decision had been set aside with the consequence that Mr Guse's application for review remained to be decided according to law. As to grounds 4, 5 and 6, which were developed by Mr Guse in written submissions, these depend on the proposition that the matter before the Tribunal, that is Mr Guse's application to review the two Comcare decisions, "was never properly before Comcare". Mr Guse argues that the direction made on 28 June 1995 for production of documents by him constitutes a finding by the Tribunal that Comcare did not have documents necessary to make the decisions under review, and thus, that Comcare's decisions were in effect a nullity. This argument misunderstands the role and function of the Tribunal when conducting a review pursuant to s 43(1) of the AAT Act. In conducting the review the Tribunal is empowered to receive additional evidence (s 40(1)(a)) and to make afresh the decision under review if it were made upon inadequate or incomplete information. The issue of the summons by the Tribunal was merely a procedural step to require documents to be produced by Mr Guse, so as to enable the Tribunal (if the documents were received into evidence) to reach a conclusion as to the extent of his loss of earning capacity in consequence of the compensable injury. The grounds of appeal disclose no error by Burchett J in making the order for remittal. The orders sought by Mr Guse in the notice of appeal do not expressly include any order which varies the orders made by Burchett J, notwithstanding that grounds 2 to 6 of the notice of appeal anticipate that an order would be sought varying in some way the order for remittal. Mr Guse seeks orders, first, that the Court hear him on the questions raised by him in the appeal. By the second, third and fourth orders sought Mr Guse seeks damages and other relief against the Commonwealth, and various judges and members of the Tribunal for breaches of statutory duty in connection with the processing of his compensation claim. This Court on an appeal initiated under s 44 of the AAT Act has no jurisdiction to consider claims of the kind formulated by Mr Guse. Moreover, leaving aside the issue of proper parties, no question of there being any claim or entitlement of the kind alleged by him could possibly arise until his entitlement to compensation has been finally determined. The courses open to Mr Guse to bring about a final determination of his compensation claim are either to withdraw his application dated 3 August 1992 to review the Comcare decisions of 18 May 1992 and 25 May 1992, or to participate in the conduct of the review by the Tribunal so that the issues still outstanding before it, pursuant to the orders for remittal of Einfeld J and Burchett J, are determined. If Mr Guse withdraws his application for review the decisions of 18 May 1992 and 25 May 1992 will then operate. If he decides to pursue the review, it will be necessary for him to address the order of 28 June 1995, either by supplying the documents covered by the terms of the order that are in his possession, custody or control, or by seeking to have the order modified so as to vary the period covered by it, or to limit the extent of the material to be produced. Whether the reconstituted Tribunal would think it appropriate to vary the order is entirely a matter for that Tribunal. If Mr Guse takes neither of these courses he must realise that his compensation claim cannot be processed under the procedures laid down in the Safety Rehabilitation and Compensation Act 1988 and the AAT Act. Finally, Mr Guse seeks an order for costs incurred by him in relation to all proceedings since 10 April 1992. This Court only has jurisdiction to make an order for costs in respect of the proceedings in this Court initiated by way of appeal from the Tribunal's decision of 21 July 1995, as amended on 24 July 1995. The appeal to this Court is misconceived. For the reasons given, Burchett J did not err either in not hearing Mr Guse present argument, or in remitting the matter to the Tribunal. The ordinary rule that costs should follow the event should apply. The appeal will be dismissed with costs. The dismissal of the appeal with costs does not alter the order made by Burchett J awarding Mr Guse his costs of the appeal hearing before Burchett J. One further point needs to be addressed. On 26 September 1997, the respondent filed a notice of motion seeking to have the appeal dismissed, pursuant to O 20 r 2 of the Federal Court Rules, on the ground that the remedies sought by Mr Guse either did not require any order to be made, or were beyond the jurisdiction of the Full Court. To decide the notice of motion, a Full Court would have been required to canvass the same material, and the same arguments raised by Mr Guse on the appeal itself. There would have been no savings in time for the Court or the parties. The Court declined to hear the notice of motion, and proceeded directly to the hearing of the appeal. The notice of motion, and the late filing of an amended notice of motion, caused Mr Guse to prepare documents that were not necessary for the disposal of the appeal. In the circumstances, we consider that the notice of motion dated 26 September 1997 should be dismissed with costs. I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Court.