Pham v Comcare [2003] FCA 117

FEDERAL COURT OF AUSTRALIA

Pham v Comcare [2003] FCA 117 CHARLES PHAM v COMCARE V 798 of 2002 RYAN J 21 FEBRUARY 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 798 of 2002

BETWEEN: CHARLES PHAM

Applicant

AND: COMCARE

Respondent

JUDGE: RYAN J

DATE OF ORDER: 21 FEBRUARY 2003

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 798 of 2002

BETWEEN: CHARLES PHAM

Applicant

AND: COMCARE

Respondent

JUDGE: RYAN J

DATE: 21 FEBRUARY 2003

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant seeks an extension of time pursuant to s 44(2B) of the Administrative Appeals Tribunal Act 1975 ("the Act") within which to appeal from a decision of the Administrative Appeals Tribunal, ("the Tribunal"), constituted by Mr J. Handley, Senior Member. That decision was handed down on 10 October 2002. It was made on an application by the applicant, Mr Pham, to review a decision of the respondent Comcare, denying the applicant compensation under the Safety, Rehabilitation and Compensation Act 1988 ("the Compensation Act"). 2 The Tribunal's reasons for decision of 10 October 2002 disclosed that the applicant had been employed in the Department of Defence since 5 January 1996 as an undergraduate dental officer holding the rank of a probationary sub-lieutenant in the Royal Australian Navy ("the RAN"). It was contemplated that, as part of his service the applicant would pursue dental studies at the University of Queensland ("the University"). 3 The applicant's claim for compensation asserted that he had suffered "post-traumatic stress syndrome and the revisiting of childhood persecution as a Vietnamese refugee in concentration camps". That condition was said to have resulted from harassment and discrimination which he had sustained at the hands of both the University and the RAN and from needle-stick injuries which he had suffered while on duty with the RAN. The applicant's allegations against the University were summarised in these terms by the Tribunal at [9] of its reasons for decision; "… … insofar as the University of Queensland was concerned, it was alleged that he was "forced to utilise unsafe unstable defective dental chairs/equipment during the 1996 and 1997 academic years despite his pleadings and cries for help to the demonstrators, nurses, clinic administrators and ultimately to the dean of dentistry"; that he attained numerous "needle stick injuries" through the use of defective dental equipment; that "patients were crying in the dental chair/environment through fear for their safety"; that letters had been written by senior members of University staff which were sought by the applicant "as evidence of a sustained and deliberate campaign of intimidation and bullying against the applicant and other non-Caucasian students"; that he was "deliberately terrorised and humiliated and denigrated in the presence of his patients and fellow students by demonstrators and tutors"; that Professor Gregory Seymour "threatened to ruin the applicant's academic record so that the applicant wouldn't even be able to use his science degree to get into another university"; that he was denied representation before the Senate Appeals Committee of the University ….. "contrary to the rules of nature justice"; that his "written appeal letter" to the Senate Appeals Committee was "deliberately withdrawn" and the University "sought to cover up the discrepancy by falsifying university documents and minutes"; that Professor Seymour "continuously lied to the Senate Appeals Committee regarding examination papers being remarked by independent examiners outside the dental faculty"; and "Asian and oriental students at the time felt aggrieved at their treatment at the dental/faculty school and they intimated to the student group and voiced their concerns that the treatment was racially motivated"." 4 The allegations against the RAN were similarly summarised by the Tribunal at [10] of its reasons; "… … Mr Pham alleged in his Affidavit that he was "deliberately not supplied with all the books and dental instruments and other academic accessories needed by him for his course which were provided for all other undergraduate naval air force and army officers"; that the Navy "broke a verbal contract to provide the applicant with all the time and space in order to perform his academic duties by serving him with a notice to show cause why the applicant should be retained in the naval [sic]"; that the honorary legal officer Commander Hume "refused to provide assistance in drafting the notice to show cause and subsequent appeals to the Chief of Defence Force without any reasons"; that "the RAN in the form of Commander Hume, a barrister at law, deliberately withheld evidence that was vital to both the University Senate Appeals Committee and the notice to show cause and subsequent appeals to the Chief of Defence"; that Major Riley, a psychiatrist, "refused to provide medical assistance prior to discharge" as requested by him; that the RAN "refused to investigate claims of discrimination and fraud and lies"; and "conspired . . to fabricate lies in order to deny the applicant his education and his livelihood"." 5 The Tribunal also recited claims by the applicant that the University and the RAN had subjected him to breaches of the Human Rights and Equal Opportunity Act 1986, the Racial Discrimination Act 1975 and the Disability Discrimination Act 1992, and to infractions of the rules of natural justice or other requirements of procedural fairness. One specific allegation focused on "faulty equipment" which the applicant had apparently been required to use. The applicant also made some point that an appeal by him to the Senate Appeals Committee of the University had miscarried because of inappropriate advice or representation provided to him by Commander Hume, the Brisbane barrister attached to the Naval Reserve. 6 It seems that the applicant failed his 1996 academic year but was permitted to re-enrol for fourth-year studies in 1997, when he again failed. Despite that failure he was apparently allowed to re-enrol in 1998 subject to certain conditions, including a requirement to undergo a psychiatric examination. In the result he did not comply with the University's conditions and did not re‑enrol. 7 The relationship which the applicant asserted between "faulty equipment" and his academic failures was recounted by the Tribunal at [23] and [24] of its reasons; "23. … … Mr Pham said that a "faulty chair" comprised a "package" of chair, dental equipment, suction equipment and instruments. He said that he suffered needle stick injuries because of the faulty equipment and he found it difficult to complete clinical work because chairs were not secured. He said there were occasions where patients were refused treatment or if they attended the clinic, had to wait considerable periods of time or were told to come back because work could not be completed. The effect of this was that the applicant was unable to complete clinical work, which affected his ability to satisfy course requirements. He said that the University did engage engineers who were responsible to repair faults but more often than not nurses were made available to hold and apply suction equipment and to spray water in the absence of faulty water pumps. Mr Pham agreed that the University replaced chairs in 1997 and other equipment which then performed satisfactorily however at that time he said that he was given differing instructions by Doctors Smythe and Brown and was, on occasions, abused by Dr Smythe." [Drs Smythe and Brown were dental practitioners who had been clinical demonstrators for the applicant since 1996.] "24. With respect to the subject results, Mr Pham said that he was "set up to fail and then called inferior". He said that he was "set up" by his demonstrators yet he regarded himself as being an experienced student who was given defective equipment. He said that he was discriminated against and referred to another person in the engineering faculty who had failed but was reinstated. Mr Pham however acknowledged that he did not know details of the circumstances of that person's reinstatement." 8 The Tribunal also summarised a cross-examination of the applicant which tended to suggest that his academic failures had been partly attributable to dilatory or inappropriate treatment of patients, and that the applicant had not been subjected to racial discrimination but, on the contrary, in February 1997 a letter of support had been written by the University to the RAN. In that letter Prof Seymour had suggested that, despite his failure in 1996: "Charles has a lot of potential and I am sure that he will ultimately be a successful dentist and naval officer." 9 The Tribunal in its reasons extensively reviewed evidence which had been given to it by Prof Seymour who was Professor of Oral Biology and head of the School of Dentistry at the University. The Tribunal next undertook a review of various medical reports which had been lodged with it in relation to the applicant's claim. It then concluded at [61], [62], [64] and [65]; "61. Any material contribution to Mr Pham's injuries by his employment - which would include his participation in a dentistry course - could only be established on the balance of probabilities if there was a factual basis. That is to say if, as a fact, Mr Pham did suffer from the discrimination, the harassment, the conspiracy or the fabrication of documents as he alleges (or a combination of these events) or if he was required to work with faulty equipment causing injury, frustration or inability to satisfactorily complete his studies. 62. I am not satisfied on the evidence heard, and read, that the applicant was exposed to discrimination, harassment, conspiracy or fabrication of documents. Nor am I satisfied that the needle stick injuries or inability to complete theoretical course work or clinical course work have an association in faulty equipment. … … … 64. I can find nothing from the evidence heard, or from the documents read, that there was any discrimination against Mr Pham throughout his service in the RAN or during his participation in the dentistry course. In making this finding, I extend the concept of "discrimination" to that of racial discrimination and discrimination also on the basis of Mr Pham's performance as a student. Professor Seymour said that he investigated "rumours" of discrimination and found them to be unsubstantiated. Mr Pham did not identify any event, or person, who he said racially discriminated against him. If he intends "discrimination" to include his many references to conspiracy against him, and harassment of him, by the RAN and by the University, I am satisfied that no such behaviour or conduct occurred. Additionally, I am satisfied that the RAN and the University did not, at any time, fabricate documents as he alleged. 65. An unfortunate feature of Mr Pham's history, as may be observed by the evidence heard and the documents read in these proceedings, is his preparedness to lodge, and pursue, complaints to, and against, various bodies and persons, but claim discrimination, harassment and conspiracy when his allegations are found not to be substantiated or untruthful. Mr Pham has a long history of complaint against the Senate Appeals Committee of the University and the Defence Forces Ombudsman. He alleged misconduct and/or conspiracy against Colonels Hume and Roberts. He complained about the conduct of demonstrators Drs Smythe and Brown, he lodged a complaint concerning the conduct of Dr Riley and a number of other University personnel, including Professor Seymour. I am not satisfied that there was any factual basis, on the balance of probabilities, to support the allegations that Mr Pham has made against these persons. I am left with the conclusion that a significant feature of Mr Pham's presentation is to blame or accuse others, yet, fail to take responsibility himself." 10 The Tribunal then expressed itself satisfied that the conclusions reached by the doctors "who drew a connection between the employment and injuries have no basis in fact" and continued at [69]; "69. …. … I do not doubt that Mr Pham has, and or does, continue to suffer injury. I am not satisfied however that any injury suffered by Mr Pham arose out of or in the course of his employment and I am certainly not satisfied that any injury was the result of a material contribution by employment. 70. Additionally, and by way of conclusion, even if there was evidence associating employment with injury, there was no evidence at all of any incapacity by Mr Pham giving rise to an entitlement of weekly compensation. Indeed, Mr Pham's own evidence was that he occupied most of the period between 1998 and 2000 with his HREOC appeal, which would indicate a capacity to undertake employment. Additionally, he referred to his attendance with an employment agency of Centrelink where he apparently indicated a preparedness to be engaged as a computer web page designer, but declined employment because of advice of his doctor. Mr Pham unfortunately sought to evade questions upon this issue and would not respond to questions as to whether he believed he had a capacity for employment at that time, preferring to answer that his capacity for employment was a matter for determination by his doctors. Additionally, his commencement of a PhD and current undertaking of a Diploma in Education is inconsistent with incapacity." 11 In his original proposed notice of appeal which accompanied his application for an extension of time and which was filed on 22 November 2002, Mr Pham recited these grounds: "(3) Mistake of facts: Available evidence. (4) Mistake of law: Place of employment"; The order sought was stipulated to be "Overturn of Decision". After I drew his attention, at a hearing on 3 February this year, to the deficiencies in those grounds, Mr Pham reformulated his proposed notice of appeal to read, in the relevant parts; "2. THE QUESTIONS OF LAW raised on the appeal are - A) Illness has been established and documented, but never by the Defence Force due to their Discriminatory Acts; illness is never refuted. B) Employment: period of employment was established, location of employment is confirmed to be at the University of Queensland. C) Rehabilitation: is never established, wasn't raised at the tribunal hearing. Mr J. Handley goes so far as to indicate that the Applicant refuses medical advice. 3. ORDERS SOUGHT: Decision by Mr J. Handley to be overturned. 4. GROUNDS: Bias and Discriminatory Acts: Mr J. Handley, Senior Member, made sure Gregory Seymour, witness, did not take oath prior to giving evidence. Mr Handley's attempt to pervert the course of justice, by using false evidence in his deliberation. No evidence of rehabilitation was established, and as a matter of fact there is evidence, in the form of late Appeals to the Federal Court and to the High Court, as proof of rehabilitation not established." 12 It is trite to observe that no appeal lies to this Court from a mistake of fact made by the Tribunal. That follows from s 44(1) of the Act, which provides; "A party to a proceeding before the tribunal may appeal to the Federal Court of Australia on a question of law from any decision of the tribunal in that proceeding." (emphasis added) 13 I cannot discern any respect in which the Tribunal can arguably be said to have erred in law in relation to any issue about the applicant's place of employment. The Tribunal seems to have accepted, in the passage from [61] of its reasons from which I have already quoted, that the University or anywhere else, while the applicant was pursuing a dental course, could have been a place of employment for the purposes of the Compensation Act. 14 If I had been persuaded to grant an extension of time, as contemplated by s 44(2B) of the Act, it would have been necessary for the applicant to have proposed a properly formulated notice of appeal identifying a question of law giving rise to an arguable right of review under s 44 of the Act. However, it has been established by a consistent line of authority in this Court that the strength of an applicant's case on the merits has an important bearing on the Court's exercise of its discretion to grant or refuse an extension of time under s 44(2A) of the Act. Thus in Peczalski v Comcare (1999) 58 ALD 697 Finn J noted, at 701; "The particular factors that are of immediate significance are (a) the explanation given of the delay; (b) the actions of the applicant in contesting the decision otherwise than by appeal; (c) prejudice to the respondent; and (d) the merits of the application." 15 In the present case the delay between the expiration of 28 days from the date when the applicant is deemed to have received notice of the Tribunal's decision and the filing of the application for an extension of time and proposed notice of appeal is relatively short. As the material stands at present, the applicant has failed after two attempts to identify any question of law as required by s 44 of the Act. 16 The applicant did belatedly attempt, from the bar table today, to suggest that there had been no evidence to support certain findings of fact by the Tribunal. One such finding proffered as an example was that in [70] of the Tribunal's reasons from which I have quoted; that the applicant had commenced a PhD and was currently undertaking a Diploma of Education. However, that question of law in the form of a "no evidence" point has never previously been identified, and whether it supports a legal error by the Tribunal cannot be determined without an examination of all the material that was before it. 17 I am mindful of the traditional reluctance of courts to shut out an applicant from an examination of the merits of his or her case. That reluctance was illustrated by the judgment of Lehane J in Travers v State of New South Wales (2000) FCA 1565, to which I was referred by the applicant. However, the refusal of the present application will not give rise to an issue estoppel precluding the applicant from seeking a fresh extension of time if he can identify and articulate a properly arguable error of law by the Tribunal. Nevertheless, his failure to do so after two attempts, combined with my own inability to discern any error of law in the reasons of the Tribunal, has convinced me that the applicant has at present no prospect of success on the merits of his appeal. Accordingly, to grant an extension of time would be futile. The application will therefore be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.