Quitlong v Australian Postal Corporation

REASONS FOR JUDGMENT 1 The applicant was an employee of the respondent Australian Postal Corporation. She was compulsorily retired on medical grounds with effect from 4 November 1998. The ground of incapacity was a "Psychiatric Disorder - possible Schizophrenia". In January 2000 the applicant lodged a claim, dated 17 January 2000, for compensation pursuant to the Safety, Rehabilitation & Compensation Act 1988 (Cth) ("the Compensation Act") arising out of her compulsory retirement. The claim was initially regarded as invalid, but on 7 March 2000, following further correspondence, a delegate of the respondent disallowed the claim for compensation. The applicant requested an internal review of that decision. On 29 March 2000 a Review Officer of the respondent affirmed the determination. On 18 May 2000 the applicant wrote to the Administrative Appeals Tribunal ("the AAT") requesting a review of that decision. On 30 October 2000 a preliminary conference took place before a Registrar of the AAT. Later that day the solicitor for the respondent forwarded the following message to the AAT: "Further to the preliminary conference this morning we have been instructed to seek a directions hearing for the purpose of requesting that the Tribunal dismiss the proceedings for want of prosecution. We have received no evidence whatsoever that the applicant suffered any work-related injury and submit that in the absence of any such evidence it would be a waste of time proceeding to a hearing. We look forward to the Tribunal's comments." 2 Section 42B of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") is as follows: "42B Power of Tribunal where a proceeding is frivolous or vexatious (1) Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious: (a) dismiss the application; and (b) if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction. (2) A direction given by the Tribunal under paragraph (1)(b) has effect despite any other provision of this Act or a provision of any other Act. (3) The Tribunal may discharge or vary such a direction." 3 On 12 January 2001 Senior Member Allen gave what was described as a direction in the following form: "UPON hearing the Applicant and the solicitor for the Respondent, the Tribunal DIRECTS that pursuant to section 42B(1) of the Administrative Appeals Act 1975, this application is dismissed." Draft reasons which were supplied later included the following: "In this matter, it seems clear on the material before me, that to permit this matter to go to trial in its current state, would be futile. There is not a scintilla of evidence from the applicant which in any way suggests that any mental condition suffered by her is in any way related to her employment. There is overwhelming evidence on the part of the respondent, that her diagnosed condition of paranoid schizophrenia, is not related to her employment. One then has the added complication that the applicant currently is under no treatment for the condition, and indeed says she is not suffering from the said condition. In those circumstances, therefore, it would be pointless to waste time in having this matter go to trial. The applicant does have other complaints, which I gather are in the nature of unfair dismissal, but that is not a matter with which this Tribunal is empowered to deal. One can only suggest that if she feels that she has a claim in that direction, she should seek legal advice. As the matter stands however, it is dismissed pursuant to subsection 1 of section 42B as being frivolous and vexatious." It is not clear to me what evidence was referred to by Senior Member Allen or what form any hearing before him took. 4 The applicant then filed an application to the Court on 12 March 2001, seeking an extension of time in which to appeal from the decision of the AAT given on 12 January 2001. After a hearing on 17 April 2001, on 19 April 2001 Lindgren J dismissed the application (Quitlong v Australian Postal Corporation [2001] FCA 452). The judgment included the following: "7. Ms Quitlong has shown no satisfactory explanation for her failure to "appeal" to this Court within the 28 day period allowed by s 44 of the Administrative Appeals Tribunal Act 1975. Moreover, all the medical evidence which I have read makes it clear that the condition from which she suffers, while disabling her for work, is not causally related to her employment by the respondent. Accordingly, it would be futile for an appeal by her from the Tribunal's decision to proceed to a hearing. 8. I think that the present application is "frivolous or vexatious" within the meaning of par 2(1)(b) of Order 20, generally for the reasons given by the Tribunal." 5 On 2 December 2002 the applicant forwarded a document to the AAT under the following heading and introduction, being entitled in the same fashion as the previous application: "Subject: Request for reinstatement or to revive of the application and for review of the new decisions. Perhaps, whatsoever, this case cause of injustice victim or wrongfully dismissal and may required administrative law's decision and as I seek legal advice on this matter. I Regina Quitlong, the applicant in this matter would like to request for review or to revive of the case or application, whichever, the case may be, which stated the reasons in full as follows …" The document concluded: "That, I therefore conclude on this case, that I am seeking for the right of lawfullness in this circumstances and be reconsidered." 6 By letter of 12 December 2002 the solicitors for the respondent wrote to the Deputy Registrar of the AAT and, after setting out the history of the matter, said the following: "In the respondent's submission, nothing has changed. There is nothing in the applicant's letter of 2 December 2002 to suggest the applicant's claim has any more merit than it had when considered by Senior Member Allen and Justice Lindgren. For these reasons the respondent opposes the application for reinstatement. Please note that if a Directions Hearing is scheduled the applicant requires a Filipino interpreter." 7 On 20 December 2002 Deputy President RP Handley of the AAT made a decision in the following form: "Decision: The Tribunal decides that the matter is dismissed pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975 without the Tribunal proceeding to review the decision." There is no evidence that the applicant was advised of what had occurred prior to receipt of the decision and, in particular, there is no evidence that an opportunity of being heard was offered to her. 8 On 16 January 2003 the applicant commenced this proceeding, by a document purporting to be a notice of appeal pursuant to s 44 of the AAT Act. The questions of law are identified by the applicant as follows: "1. Point's of law - denied without the Tribunal proceeding to review the decision. 2. In the matter of question of law which denied natural justice without further study and read carefully the statements written down." 9 There is little doubt that the decision of the AAT of 20 December 2002 was flawed because of a failure to afford natural justice to the applicant in connection with the making of it. Counsel for the respondent was not able to support what occurred. There is a question as to whether an application pursuant to s 44 of the AAT Act is the appropriate method of proceeding, however any procedural difficulty could be cured by amending the proceedings to include or make a claim pursuant to s 39B of the Judiciary Act 1903 (Cth). 10 The burden of the argument for the respondent was that no relief should be granted because to do so would be futile. It is argued that the AAT had no power to reinstate the application for review previously dismissed by Senior Member Allen. The AAT Act makes specific provision for circumstances in which applications may be reinstated, and the applicant's case did not fall within them. Furthermore, it was submitted that, on general principles, once a decision is made dismissing an application then, absent any particular power to revive it, it is final and concludes that application. There is much to be said for these submissions. However, it is argued for the respondent that, in the absence of a direction under s 42(B)(1)(b), a fresh application for review may be made to the AAT (with an application for extension of time where appropriate). It was not conceded that such a fresh application for review had been made, nor that Deputy President Handley treated the applicant as having made a fresh application. However, it was argued that as a fresh application can still be made, there is no utility in seeking to revive an inappropriate application. 11 Alternatively, it was argued that if the Deputy President did treat the document as a fresh application for review, there was no error or practical injustice in dismissal of the application. There was still no medical evidence that any psychiatric condition suffered by the applicant was materially contributed to by her employment. Nothing had changed since the decision of Lindgren J. It was pointed out that, when properly understood, it may be that the complaints of the applicant are of either unfair dismissal or unlawful discrimination, rather than any claim pursuant to the Compensation Act. It is also submitted for the respondent that if the applicant seeks reinstatement in her job rather than reinstatement of her review application, then that is not relief which is available to her. It was submitted that no practical injustice has been shown (Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 per Gleeson CJ at [36]-[38]). 12 In the case of breach of the rules of natural justice, relief will normally be granted except where it is clear that the breach did not affect the outcome (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gleeson CJ at [4], per Gaudron and Gummow JJ at [56]-[60], [79]-[81], per McHugh J at [104] per Kirby J at [172], per Callinan J at [211]). 13 I have concluded that the failure to afford the applicant the opportunity of being heard made no difference to the outcome here. In the case of a psychiatric condition of the kind involved here, the Compensation Act makes it necessary to prove that it, or an aggravation of it, was contributed to in a material degree by the employee's employment. It was the applicant's failure to produce any evidence of such a link which caused the proceedings to be dismissed by Senior Member Allen, and caused Lindgren J not to permit any extension of time for appeal from that decision. The applicant was heard on both occasions. The applicant did not contend in argument that the failure to be heard had caused her not to be able to produce evidence which she had available and there was no evidence to that effect. Indeed (as apparently before Senior Member Allen), she contended that she was not suffering from the condition at all, and was receiving no treatment and taking no medication for it. It has been conceded on behalf of the respondent that, if and when the applicant produces some evidence of such a link sufficient to require consideration, then, subject to obtaining an extension of time, there is no barrier to a fresh application by her to the AAT. 14 There is some doubt as to the precise nature of the application which was before the AAT and which was dismissed, and there is also a question as to whether the present form of proceeding by the applicant is apt to raise the issue of breach of the rules of natural justice. Having in mind my substantive conclusion, I simply propose to dismiss the application. Subject to hearing argument from the respondent, my disposition is to make no order as to costs, as the applicant was correct in asserting that there was a breach of the rules of natural justice in making the AAT decision in question. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.