NRJT v Australian Offshore Solutions Pty Ltd [2017] FCA 268

FEDERAL COURT OF AUSTRALIA

NRJT v Australian Offshore Solutions Pty Ltd [2017] FCA 268 Appeal from: NRJT v Australian Offshore Solutions Pty Ltd [2015] AATA 588

File number(s): WAD 511 of 2015

Judge(s): SIOPIS J

Date of judgment: 13 March 2017

Date of hearing: 13 March 2017

Registry: Western Australia

Division: General Division

National Practice Area: Employment & Industrial Relations

Category: No Catchwords

Number of paragraphs: 25

Counsel for the Applicant: The Applicant did not appear.

Counsel for the Respondent: Ms R Aria-Retnam

Solicitor for the Respondent: Sparke Helmore Lawyers

ORDERS WAD 511 of 2015

BETWEEN: NRJT Applicant

AND: AUSTRALIAN OFFSHORE SOLUTIONS PTY LTD Respondent

JUDGE: SIOPIS J DATE OF ORDER: 13 MARCH 2017

THE COURT ORDERS THAT:

1. The applicant's application is dismissed. 2. The applicant is to pay the respondent's costs to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SIOPIS J: 1 This is the hearing of an appeal on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) in relation to a decision of the Administrative Appeals Tribunal (the Tribunal) delivered on 13 August 2015. The applicant is Mr Grant Nicholas, although in this case he is referred to by the pseudonym, "NRJT". Mr Nicholas claimed that he had been denied procedural fairness in the hearing before the Tribunal. 2 The impugned Tribunal decision was made in respect of an application brought by Mr Nicholas in the context of a claim for workers' compensation under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (the SRC Act), which Mr Nicholas had previously made against the respondent, Australian Offshore Solutions Pty Ltd (AOS). 3 I have recently outlined the background to the claim for workers' compensation brought by Mr Nicholas in the reasons for judgment in Nicholas v Australian Offshore Solutions Pty Ltd [2017] FCA 43 (Nicholas). However, it is necessary to repeat some of those facts in summarising the background to this appeal. 4 On 29 January 2014, Mr Nicholas was on a vessel called the MV "Sapura Kencana Constructor". Mr Nicholas and some other employees were due to go off duty and go ashore on that day. Mr Isted, a fellow employee, as a favour to Mr Nicholas, signed the ship's log book in Mr Nicholas' name as a means of signing Mr Nicholas off duty before they went ashore. Mr Nicholas protested at the time about Mr Isted's conduct but departed the ship later that day. In due course, Mr Nicholas reboarded the ship on 11 February 2014 to continue his employment duties, but he was airlifted off the ship on 12 February 2014 suffering from fever and vomiting. 5 Then, on 12 May 2014, Mr Nicholas lodged a claim for workers' compensation under the SRC Act with AOS. One of the claims made in the claim by Mr Nicholas was that he was suffering from post-traumatic stress disorder consequent upon Mr Isted "forging" his name when signing him off duty on 29 January 2014. AOS declined Mr Nicholas' claim for workers' compensation. 6 On 25 September 2014, Mr Nicholas then applied to the Tribunal for a review of AOS' decision not to accept his claim for workers' compensation. However, before he commenced his proceeding in the Tribunal, Mr Nicholas had been asked by AOS to attend for a medical examination on each of 15 July 2014 and 5 August 2014. Mr Nicholas did not attend either of those appointments. 7 Section 66 of the SRC Act relevantly provides as follows: 66 Power to require medical examination (1) If: (a) a notice has been given under section 62 in relation to an injury to an employee; or (b) an employee has made a claim for compensation under section 63; the employer to whom the notice of claim is given may require the employee to undergo an examination by a legally qualified medical practitioner nominated by the employer. (1A) An employee must not be required to be examined by more than one legally qualified medical practitioner in any examination that the employee is required to undergo under subsection (1). (2) If an employee, without reasonable excuse, does not undergo an examination, or in any way obstructs an examination, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place. (3) If an employee's right to compensation is suspended under subsection (2), compensation is not payable in respect of the period of the suspension. 8 Mr Nicholas was asked to attend another medical appointment on 15 December 2014. Mr Nicholas did not attend that appointment either. 9 As a consequence, on 18 December 2014, AOS, acting pursuant to s 66(2) of the SRC Act, suspended Mr Nicholas' right to claim compensation. 10 Mr Nicholas then commenced application number 2015/1016 in the Tribunal challenging the suspension decision by AOS. 11 I observe in passing, however, that Mr Nicholas did ultimately, prior to the hearing of the Tribunal application, attend a medical examination at the request of AOS. Thereafter, the suspension ceased to have effect. 12 That Tribunal application was heard on 8-9 July 2015 and 10 August 2015 by Deputy President Kendall. Mr Nicholas represented himself and the AOS was represented by counsel. At that hearing, Mr Nicholas gave evidence that he had a reasonable excuse for not attending the three medical appointments which were the subject of the dispute. 13 On 13 August 2015, the Tribunal handed down its decision. The Tribunal rejected Mr Nicholas' contention and found that Mr Nicholas had not provided any reasonable excuse for his failure to attend the three medical appointments. The Tribunal went on to say that Mr Nicholas' failure to attend these three medical appointments constituted an obstruction in accordance with s 66(2) of the SRC Act and affirmed the suspension decision by AOS. 14 On 3 September 2015, Mr Nicholas commenced this appeal on a question of law challenging the Tribunal's decision of 13 August 2015. 15 In the meanwhile, Mr Nicholas' application made to the Tribunal on 25 September 2014, for review of AOS' determination to deny him workers' compensation on the basis that he was not suffering a compensable injury (see [5]–[6] above), was still pending in the Tribunal. Accordingly, this appeal proceeding was adjourned pending the outcome of Mr Nicholas' Tribunal review of AOS' determination not to accept Mr Nicholas' claim for workers' compensation. This was because the utility of this application was affected by the outcome of the Tribunal review. 16 On 20 May 2016, the Tribunal affirmed the decision of AOS not to accept Mr Nicholas' claim for workers' compensation. 17 Mr Nicholas then commenced an appeal on a question of law in this Court under s 44 of the AAT Act in respect of the Tribunal's decision of 20 May 2016, affirming AOS' determination not to accept Mr Nicholas' claim for workers' compensation. That appeal on a question of law was heard on 11 October 2016. 18 On 1 February 2017, this Court handed down its decision which dismissed the appeal on a question of law from the Tribunal's decision. Shortly after the delivery of that decision, the Court set this matter down for hearing today. 19 When the matter was called on for hearing today, Mr Nicholas was not present in Court. I am advised that last week Mr Nicholas advised the Court's registry that he would not be attending the hearing today due to financial hardship. However, there was no affidavit evidence before this Court in support of Mr Nicholas' claim. Accordingly, I proceeded to hear the application. 20 AOS contended that the appeal should be dismissed on the grounds that there was no utility in the appeal in light of the fact that AOS' determination not to accept Mr Nicholas' claim for workers' compensation had been affirmed by the Tribunal and Mr Nicholas' appeal against that decision had been dismissed by this Court on 1 February 2017. 21 I accept AOS' contention. This appeal serves no utility. This is because AOS did not accept Mr Nicholas' claim for workers' compensation and, therefore, Mr Nicholas was not in receipt of any compensation funds prior to the impugned suspension determination made by AOS, nor afterwards when the suspension ceased to have effect. 22 This appeal would have had utility had Mr Nicholas succeeded before the Tribunal in establishing an entitlement to workers' compensation. In that circumstance, it would have been relevant to determine whether the suspension determination was warranted, because if it had not been warranted, Mr Nicholas would have been entitled to workers' compensation for the period of the suspension. However, as it transpired, Mr Nicholas' application to the Tribunal was unsuccessful, as was his appeal on a question of law to this Court. 23 I would add that I have been advised by the Court's registry that last week Mr Nicholas filed an application for an extension of time to appeal against this Court's decision in Nicholas. The application has not yet been heard. However, in the absence of any stay having been granted, I do not intend to treat the filing of the extension of time application, as a basis for declining to give effect to the decision in Nicholas. 24 Accordingly, I am of the view that this appeal on a question of law has no utility, and I dismiss this appeal. 25 I will order that the applicant pay the respondent's costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.