O'Sullivan v P & O Maritime Services Pty Ltd

1. The appeal is allowed and the order made by the Administrative Appeals Tribunal (Tribunal) pursuant to s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on 11 March 2016 (Order) dismissing the applicant's application before the Tribunal (AAT Application) be set aside.
2. The matter be remitted to the Tribunal, differently constituted, to be determined according to law.
3. The respondent is to pay such of the applicant's disbursements incurred in relation to this appeal as are recoverable.
4. By 4:00 pm on 23 August 2016, the applicant file and serve a bill of disbursements, which the applicant claims were incurred in relation to this matter and are recoverable from the respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

SIOPIS J: 1 This is an appeal by Mr Michael O'Sullivan on a question of law from a decision of the Administrative Appeals Tribunal (the Tribunal) which dismissed Mr O'Sullivan's application pursuant to s 42A(5)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). Mr O'Sullivan's claim before the Tribunal was a claim for compensation for injury to his back under the Seafarers Rehabilitation and Compensation Act 1992 (Cth). 2 The facts relating to the dismissal of Mr O'Sullivan's application before the Tribunal were, briefly, as follows. 3 At a directions hearing on 23 December 2015, the Tribunal issued a direction requiring Mr O'Sullivan on or before 4 February 2016 to file and serve a list of all treating doctors consulted in respect of his back condition since 1993 and a list of all his employers from 1993 to that date. 4 Mr O'Sullivan later asked for an extension of time and at a directions hearing on 25 February 2016 the Tribunal extended the time for compliance with its direction of 23 December 2015 to 10 March 2016. 5 Relevantly, Order 3 of the directions of 25 February 2016 provided that the application before the Tribunal would be dismissed pursuant to s 42A(5)(b) of the AAT Act if Mr O'Sullivan did not comply within the extended time period. 6 On 7 March 2016, Mr O'Sullivan wrote to the Tribunal in effect requesting a further six week extension of time to comply with the direction. The Tribunal notified the respondent of Mr O'Sullivan's request by email on 9 March 2016. On 10 March 2016, the respondent wrote to the Tribunal advising that it did not consent to Mr O'Sullivan's request for an extension of time. 7 By 10 March 2016, Mr O'Sullivan had not provided the information referred to in the Tribunal's direction and so had not complied with the direction. 8 On 11 March 2016, the Tribunal, without having first sought submissions from Mr O'Sullivan in respect of its intention to dismiss his application under s 42A(5)(b) of the AAT Act on the grounds of his non-compliance, dismissed the application under that section. 9 Mr O'Sullivan appealed against the Tribunal's decision to this Court under s 44 of the AAT Act which permits a party to appeal on a question of law. The notice of appeal does not precisely identify the questions of law relied on; but, in essence, the questions were whether Mr O'Sullivan had been denied procedural fairness in the Tribunal; and also whether there was an inconsistency between s 67(2) of the Seafarers Rehabilitation and Compensation Act and s 33(2) of the AAT Act. 10 The respondent is represented by Mr Heenan of counsel, who, acting properly pursuant to his duty to the Court, referred the Court to the case of Guse v Comcare (1997) 49 ALD 288 (Guse) which is adverse to his client's case and supports Mr O'Sullivan's claim. Further, at the hearing today, the respondent sought an order that the appeal be allowed, on the basis that Guse applied to the facts of this case and Mr O'Sullivan was correct in his contention that he had been denied procedural fairness before the AAT in the way in which the AAT dismissed his application. 11 In Guse, Burchett J set aside the decision of the Tribunal to dismiss an application pursuant to s 42A(5)(b) of the AAT Act on the grounds that the Tribunal had not given the applicant an opportunity to make submissions as to whether the whole application should be dismissed after the applicant had failed to comply with a direction of the Tribunal. At 291, Burchett J observed: Furthermore, s 42A(5)(b) cannot, consistently with the observance of the principle of natural justice, be implemented upon an ex parte statement that an applicant has not complied with a direction, without giving the applicant any opportunity to explain, or advance reasons why the matter should nevertheless proceed. 12 I was not referred to any other decision which undermines Guse, and the decision of Guse cannot be said to be plainly wrong. I will, therefore, give effect to that decision. As mentioned, the respondent accepted that this was a case in which the same considerations applied as applied in Guse. 13 I will, therefore, allow Mr O'Sullivan's appeal and the matter will be remitted to the Tribunal. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.