Williams v Brohier [2003] FCA 515

FEDERAL COURT OF AUSTRALIA

Williams v Brohier [2003] FCA 515 GARY WILLIAMS v JAMES BROHIER & ASHLEY HEATH & CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN GOVERNMENT SOLICITOR & DONALD MULLER (IN HIS CAPACITY AS A MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL) & COMCARE D 3 of 2003 MANSFIELD J 21 MAY 2003 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY D 3 OF 2003

BETWEEN: GARY WILLIAMS

APPLICANT

AND: JAMES BROHIER

FIRST RESPONDENT

ASHLEY HEATH

SECOND RESPONDENT

CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN GOVERNMENT SOLICITOR

THIRD RESPONDENT

DONALD MULLER (IN HIS CAPACITY AS A MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL)

FOURTH RESPONDENT

COMCARE

FIFTH RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 21 MAY 2003

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application for an interlocutory injunction is refused. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY D 3 OF 2003

BETWEEN: GARY WILLIAMS

APPLICANT

AND: JAMES BROHIER

FIRST RESPONDENT

ASHLEY HEATH

SECOND RESPONDENT

CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN GOVERNMENT SOLICITOR

THIRD RESPONDENT

DONALD MULLER (IN HIS CAPACITY AS A MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL)

FOURTH RESPONDENT

COMCARE

FIFTH RESPONDENT

JUDGE: MANSFIELD J

DATE: 21 MAY 2003

PLACE: ADELAIDE

REASONS FOR DECISION 1 This is an application for an urgent interlocutory injunction to restrain the first, second, third and fifth respondents - but, in substance, the fifth respondent - from proceeding in Administrative Appeals Tribunal proceedings D2001/43 until further order. The fourth respondent has indicated he will abide any order of the Court, save of course as to costs. Those proceedings are an application by the present applicant for review of a decision of a delegate of the fifth respondent refusing to grant compensation to him under the Safety Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of the condition of diabetes which he developed while serving in the Royal Australian Air Force. It is contended that the review application before the Administrative Appeals Tribunal (the Tribunal) should be adjourned until it is decided in these proceedings whether the relationship between the applicant's employment and his diabetes has already been determined by compromise between the applicant and the fifth respondent, so that the review application before the Tribunal should not address that issue. 2 Following the application for review to the Tribunal, solicitors for the applicant and the fifth respondent embarked upon extensive correspondence. The issue in the proceedings is whether those communications led to an agreement between the applicant and the fifth respondent to be bound on the question of whether the applicant's diabetes, which he developed while serving in the Royal Australian Air Force, was causally related to that service by the determination of an agreed medical practitioner Professor Cohen, who was to provide a report on the question. 3 Professor Cohen was consulted by the parties. He provided a report dated 28 August 2002 on the question. The applicant claims the fifth respondent is bound to accept his views on the question. 4 I do not need to go into the details of the correspondence upon which the applicant contends, and the respondents dispute, that there was an agreement between them that Professor Cohen should determine the question of the causal relationship between employment and diabetes. That is a matter which will have to be resolved at trial. I am satisfied that there is a serious question to be tried on behalf of the applicant that there was such an agreement, that it was implemented, and that Professor Cohen determined that issue favourably to him, and that the fifth respondent is bound by his determination. I do not need to go beyond deciding that there is a serious question to be tried on that issue. 5 The question then is whether I should grant an injunction which, in effect, would require the fifth respondent - and, to the extent to which it gives instructions to the first, second and third respondents, those respondents - to consent to the applicant's proposed application to adjourn the hearing before the Tribunal tomorrow to enable these proceedings to be first heard and determined. 6 I accept, as senior counsel for the applicant contended, that logically the question whether or not there was such an agreement and whether the fifth respondent is bound by such agreement is an anterior issue which more conveniently should be determined before the Tribunal proceeds with its hearing. That is because the principal issue before the Tribunal is, in effect, the same issue as that which the applicant claims has been determined in his favour by the agreement. However, notwithstanding that matter, in my view, the balance of convenience at this late point does not lean in favour of granting the injunction which is sought. 7 Counsel for the applicant first contended that, if the injunction were not granted, the applicant may lose the benefit of the claimed agreement. I am satisfied that that is not so. In particular, the fifth respondent, through counsel, has indicated that such benefits as the applicant may have under the claimed agreement will be given effect to by the fifth respondent even if the Tribunal proceeds to hear and determine the review application tomorrow, and to uphold the decision of the delegate of the fifth respondent. Thus, if the present application is successful and the Court makes declaratory orders to the effect that there is an agreement between the applicant and the fifth respondent to be bound on the causation issue in the circumstances by Professor Cohen's opinion, and his opinion is favourable to the applicant, so that the causation issue was compromised in favour of the applicant, counsel for the fifth respondent has indicated that it will, on its own motion, review and determine the application by the applicant for benefits under the Act in respect of diabetes in accordance with such determination as the Court may make. The result would be that, if the applicant's primary claim in these proceedings is sustained, the fifth respondent will give effect to such declaration and will then proceed to determine the amount of the applicant's entitlement to compensation for diabetes in accordance with the Act. In the event that the applicant then disputes the determination as to the amount of his entitlement, he will have the normal rights of review to the Tribunal. 8 The disadvantage to the applicant of proceeding before the Tribunal is therefore that he will be put to the trouble and expense of conducting the proceedings tomorrow (if they otherwise proceed) in circumstances where that trouble and that expense may ultimately prove to be unnecessary. I also bear in mind that the Tribunal, if it proceeds, may make a determination on the causation issue which is different from that which the fifth respondent may ultimately be obliged to make. That may be an undesirable circumstance. But it would have to be accepted that its decision would have been partly on different information to that upon which Professor Cohen reached his opinion. I also have regard to the public interest in the Tribunal not spending time resolving issues which may be moot. Those considerations may also be of moment to the Tribunal if it is asked to adjourn the application. 9 On the other hand, bearing in mind that he will not lose the benefit of his claimed agreement if he succeeds in this action - notwithstanding what the Tribunal may decide - I bear in mind that the application is made at a very late stage. I accept that the hearing before the Tribunal was finally notified to the applicant, through his solicitors, on about 8 April 2003. Thereafter, there has been a period of some weeks during which solicitors for the applicant and the fifth respondent have been negotiating as to whether the application before the Tribunal should be adjourned by consent. Solicitors for the fifth respondent have, however, through that period indicated their instructions were not to consent to such an adjournment, notwithstanding the ongoing contentions put to them by solicitors for the applicant. The matter is now at the eve of trial. Counsel has been briefed and the matter prepared by the respondent, including making arrangements for the giving of medical evidence by Professor Cohen. I also bear in mind that, if the Court were to make the order today which is sought, the costs of the respondents in preparing the Tribunal matter for hearing will have been lost. The Tribunal itself has no power to awards costs in favour of the fifth respondent in the review application before it. I also bear in mind that, understandably, the applicant, although he proffers the usual undertaking as to damages, has been frank enough to acknowledge through senior counsel - as one would expect him to have done - that he has no assets, so any undertaking which he is able to proffer is of no real substance. 10 The consequence, in my judgment, is that the balance of convenience is in favour of declining the order which is presently sought. If the Tribunal proceedings ultimately are successful, the applicant will not be disadvantaged except to the extent that he has had to participate in the Tribunal proceedings. If the proceedings before the Tribunal take place, and the applicant succeeds in any event, the present proceedings will become unnecessary. If the proceedings before the Tribunal proceed, and the applicant is unsuccessful, as I have noted, he will have the disadvantage of having participated in the proceedings but his rights otherwise in the present action or the rights which he claims to be recognised in the present action will not have been lost. 11 Accordingly, I propose to decline the injunction which is presently sought. 12 I want to add the following comments. By making the ruling which I have made, I do not intend to indicate in any way what the Tribunal should do tomorrow if it is confronted with an application by the applicant for adjournment of its review proceedings. The applicant may make an application to the Tribunal for adjournment of its proceedings tomorrow by reason of the extancy of the present proceedings. I indicate that the present proceedings are likely to be heard and resolved by the Court in July or August of this year. The Tribunal may also be confronted with an application for adjournment for other reasons. I do not pause to speculate what they may be, although there is some suggestion that the applicant will seek an adjournment for reasons other than the fact of these present proceedings having been issued and may be pursued to judgment in the relatively near future. Whether the Tribunal adjourns the proceedings tomorrow, if an application for adjournment is made to it, are entirely up to the Tribunal. I do not intend to signal in any way what attitude it should take, whatever grounds for an adjournment are presented to it. I will reserve the costs of the interlocutory application. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.