Guse, Jacek v Comcare [1997] FCA 961

CATCHWORDS ADMINISTRATIVE LAW - power of Administrative Appeals Tribunal to dismiss an application for non-compliance with a direction - whether the decision to dismiss can be made conditionally at the time of giving the direction - nature of the discretion - whether Applicant entitled to opportunity to be heard before dismissal of his application - natural justice. Administrative Appeals Tribunal Act 1975, s 42A(5) Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 Tanos v The Commissioner of Police (1958) 98 CLR 383 JACEK GUSE -V- COMCARE NG 626 of 1995 Burchett J Sydney 5 June 1997

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 626 of 1995 ) GENERAL DIVISION ) ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: JACEK GUSE Applicant AND: COMCARE Respondent CORAM: Burchett J PLACE: Sydney DATE: 5 June 1997 REASONS FOR JUDGMENT BURCHETT J: On 4 June 1997, I made orders in this appeal on a point of law from the Administrative Appeals Tribunal, allowing it with costs, setting aside the order of the Tribunal, which had dismissed the applicant's proceeding under s 42A(5) of the Administrative Appeals Tribunal Act 1975, and remitting the matter to the Tribunal, differently constituted, to be dealt with according to law. I reserved my reasons, which I now deliver. The case has an extremely unfortunate history. 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. That Act has since been replaced by the Safety, Rehabilitation and Compensation Act 1988. 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 at the time of his injury. Determinations and redeterminations followed, culminating in an application to the Administrative Appeals Tribunal, made on 3 August 1992 and decided on 19 November 1993. Comcare appealed to this Court against that decision, and Mr Guse cross-appealed. On 5 July 1994, Einfeld J set aside the decision, remitting the matter to the Administrative Appeals Tribunal. A number of interlocutory hearings followed. From 8 March 1995, Comcare appears to have been attempting to obtain from Mr Guse, by summons in the nature of a subpoena, employment records and tax material going back to 1 January 1981. However, the summons first issued appears to have been irregular. Apart from the irregularity of the summons, Mr Guse relied on arguments about the relevance of the documents, which were simply wrong. Unfortunately, although at times he had legal advice, at other times Mr Guse appeared for himself. His intelligence and articulateness do not compensate for lack of understanding of the legal issues involved. It is very probable that any documents he may now have falling within the terms of the summonses that were issued are incomplete, and it may be that documents falling outside of those terms may ultimately be found to be more pertinent, if they can be produced. That does not deny the relevance of the material that is referred to in the summonses; and it does not reduce Mr Guse's obligation to comply, so far as he is able. On 1 June 1995 and again on 28 June 1995, there was a lengthy debate, 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 used some language which was rude in the extreme. He, 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 do was to make an order on the spot in Draconian terms. The Tribunal's order of 28 June 1995 was taken out as a formal order, bearing the same date and the names of the senior member and members who made it. That formal order reads as follows: "UPON hearing submissions from the Applicant and Counsel for the Respondent at today's Hearing, the Tribunal DIRECTS that the Applicant shall serve on the Respondent and lodge with the Tribunal by certified mail on or before the end of business on 13 July 1995 the following documents or things:- 1. All documents in your possession, custody or control relating to your employment at any time and in any capacity, and whether paid or unpaid, from 1 January 1981 to present, including, but not limited to any payslips, group certificates, income tax returns, income tax Notices of Assessment, correspondence and copy correspondence between yourself and any employer but excluding any documents (originals or copies) which have previously been in evidence before the Tribunal in proceedings N92/369 and excluding any documents relating to your employment with the Special Broadcasting Service.