FEDERAL COURT OF AUSTRALIA Fletcher v TNT Australia Pty Ltd [2014] FCA 725 Citation: Fletcher v TNT Australia Pty Ltd [2014] FCA 725 Appeal from: Fletcher and TNT Australia Pty Ltd [2013] AATA 173 Parties: ROBIN FLETCHER v TNT AUSTRALIA PTY LTD, ADMINISTRATIVE APPEALS TRIBUNAL and COMCARE File number(s): NSD 560 of 2013 Judge(s): BUCHANAN J Date of judgment: 4 July 2014 Corrigendum: 9 September 2014 Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44 Federal Court Rules 2011 (Cth), rr 33.32, 33.33 Safety, Rehabilitation and Compensation Act 1988 (Cth), s 14 Place: Sydney Division: GENERAL DIVISION Number of paragraphs: 21 FEDERAL COURT OF AUSTRALIA Fletcher v TNT Australia Pty Ltd [2014] FCA 725 CORRIGENDUM 1 Wherever reference is made to the second respondent in paragraphs 7, 8, 10 and 19 those references be read as "third respondent". I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate: Dated: 9 September 2014 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 560 of 2013 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: ROBIN FLETCHER Appellant AND: TNT AUSTRALIA PTY LTD First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent COMCARE Third Respondent JUDGE: BUCHANAN J DATE OF ORDER: 4 JULY 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The proceedings be listed for hearing at 10.15 am (Sydney time) on 9 September 2014. 2. The parties comply with the steps set out in the judgment accompanying these directions. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 560 of 2013 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: ROBIN FLETCHER Appellant AND: TNT AUSTRALIA PTY LTD First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent COMCARE Third Respondent JUDGE: BUCHANAN J DATE: 4 JULY 2014 PLACE: SYDNEY REASONS FOR JUDGMENT 1 These proceedings were initiated by a notice of appeal from a decision of the Administrative Appeals Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). They are proceedings, therefore, in the original jurisdiction of the Court. 2 The proceedings were initiated on 3 April 2013. The decision of the Administrative Appeals Tribunal was given on 27 March 2013. The decision of the Tribunal was that the applicant did not suffer an injury within the meaning of s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) as a result of his employment with the first respondent in the period from 1 July 2008, when the first respondent became a "licenced corporation", to the date of the applicant's resignation on 13 August 2010. 3 Important findings made by the Tribunal include the following (at [33]): 33. The weight of medical evidence is that the degree of symptoms reported by Mr Fletcher is inconsistent with the findings on clinical examination and the radiological evidence. and (at [38]): 38. While none of the experts are entirely confident about the exact cause of Mr Fletcher's reported symptoms, in my opinion the most likely cause is, as Dr Schutz believes, minor disc degeneration. There is no evidence to indicate that that degeneration was contributed to, or accelerated or worsened by, Mr Fletcher's employment. … 4 The Tribunal also rejected claims that the applicant had a neck ailment to which his employment with the first respondent contributed. 5 The first respondent, on 2 August 2013, filed a notice of objection to the competency of the appeal. An appeal to this Court under s 44 of the Administrative Appeals Tribunal Act 1975 is confined to an appeal "on a question of law". The notice of appeal does not identify such a question. The question of law purportedly identified is: TNT has aggravated back & neck injuries & urological due to their discrimination & hatred. 6 As presently framed, the appeal is not competent but the applicant has not yet been heard on that issue. This objection is to be dealt with when the appeal is listed for hearing. It is not the matter which is addressed by this judgment. 7 The basis upon which the applicant elected to join the second respondent to the proceedings is unclear. The second respondent on 7 August 2013 filed an application for an interlocutory order removing it as a party to the proceedings. Pursuant to directions made on 26 July 2013, submissions were filed in support of and in opposition to that interlocutory application. The second respondent contended that it was not a party to the proceedings before the Tribunal and not liable for any injury to the applicant after the first respondent was granted a licence to self-insure commencing 1 July 2008. 8 The applicant's response consisted of written statements and making various allegations which did not address the interlocutory application filed by the second respondent. For reasons which are explained hereunder, the interlocutory application did not proceed as initially listed for hearing on 12 September 2013 and it is now to be dealt with when the appeal is listed for hearing. 9 Getting the appeal listed for hearing has proved to be difficult. The procedural history is summarised hereunder. 10 After the proceedings were commenced on 3 April 2013 they were listed for first directions on 14 June 2013. Two days before the directions hearing the applicant notified the Court that he would be overseas, was unwell and sought an adjournment. The matter was relisted for first directions on 26 July 2013. On that date directions were made to deal with the interlocutory application filed by the second respondent which was then listed for hearing on 12 September 2013. On 4 September 2013, the applicant sought an adjournment of the interlocutory hearing on medical grounds. The matter was relisted for directions on 8 November 2013. On that day the applicant informed the Court that he would be overseas for some months. The matter was listed for directions to fix a hearing date on 7 February 2014. On that date the applicant did not appear. The matter was listed for directions on 14 March 2014. 11 On 18 February 2014, the applicant indicated that he would be overseas until 11 May 2014. As I was to be absent from Australia in May and June 2014, directions were made that the proceedings be listed for hearing immediately on my return on 3 July 2014 if the parties agreed, or otherwise be listed for directions on 4 July 2014. 12 The parties were unable to agree that the matter be heard on 3 July 2014 and the applicant initially indicated that he could not attend such a hearing. 13 On 27 June 2014, the applicant appeared to make a request (although on a form used by the Supreme Court of New South Wales) for a videolink from Brazil to a hearing on 3 July 2014. The application indicated that it was made with the consent of the parties to the proceedings but that is clearly not the case. Immediately upon my return to Australia, the Registry notified the parties that the matter was listed for directions on 4 July 2014 at which time a firm date for hearing would be set. The applicant was asked to provide to the Registry a range of dates during which he would be available to present his appeal. The following was also said: The parties should also note that the Court has power to dismiss an appeal if it appears that the appellant has failed to prosecute the appeal or fails to appear when the appeal is listed for hearing. 14 The applicant has not provided a range of dates. The applicant responded on 1 July 2014 saying, amongst other things: I have already indicated reason of why there is no need for this matter to keep going and that the defendant has already assumed blame (Partly) for my injuries, well bellow [sic] what the law says ………… I can't be there personally as I am looking after my mother [presumably in Brazil] and helping her as she is doing a lot of medical exams. I would like you to show in the law where I do need to be there personally, as far as I know even if you take that into account I do have very good reason for not been [sic] there in person. 15 The first respondent advised the applicant, also on 1 July 2014, that it would apply to dismiss the proceedings pursuant to rule 33.33 of the Federal Court Rules (hyperlinks to which were provided) if he failed to attend the appeal once listed. It notified him that it intended to ask that the matter be set down for final hearing as soon as possible. 16 The applicant responded on the same day. In large part the response addressed matters other than procedural issues with which I am at present concerned, but in a footnote the applicant said: I Can't be there personally as I am helping my mother as she is doing medical exams and she needs my help as she is 70 years old so yes the law says that if the plaintiff can't be there personally he can attend over the phone or internet that is why this option exists, even though from all that has been said and with what the courts have already including you [sic] offers, there is no need for a hearing and the matter would go to a mediation where the courts would seat with the law book and work how much money both TNT and [an insurer not connected with the present proceedings] owes me BY LAW and by the criminal matters mentioned above. I note that also that as TNT at the time of those incidents above were under Comcare which is federal and that means that I should have a trial with a jury. 17 It appears to me to be desirable, in the circumstances which I have disclosed, that the applicant (and the other parties) have a firm statement about the future progress of this matter. 18 The matter will be listed at a time when the applicant will have an opportunity either to return to Australia to prosecute his appeal or make arrangements with the New South Wales Registry to present his arguments by telephone if that is the only option for him. He must take responsibility for making those arrangements with the New South Wales Registry in a timely manner. If he elects to present his arguments by telephone it will be necessary for the applicant to arrange for any documents upon which he proposes to rely to be available in Court by providing them in advance (also in a timely manner) to the New South Wales Registry for that purpose, as well as providing copies to the other parties. If the applicant does not propose to appear in person at the hearing and wishes to receive documents in advance from the other parties, he must provide a postal address at least one month prior to the hearing for that purpose and such documents are to be provided to him at least two weeks before the hearing. 19 At the hearing, I propose to deal with matters in the following order: 1) The objection to competency of the appeal. 2) If the appeal proceeds, the interlocutory application by the second respondent that it be removed as a party. 3) If the objection to competency of the appeal is not upheld, the appeal. 20 Should the arrangements for the hearing not be complied with or should the applicant in any other material way fail to prosecute his appeal I will entertain an oral application at the hearing of the appeal that it be dismissed under rules 33.32 and/or 33.33 of the Federal Court Rules. 21 Directions: 1. The proceedings be listed for hearing at 10.15 am (Sydney time) on 9 September 2014. 2. The parties comply with the steps set out in the judgment accompanying these directions. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate: Dated: 4 July 2014