FEDERAL COURT OF AUSTRALIA

Quitlong v Australian Postal Corporation [2001] FCA 452

REGINA REODICA QUITLONG v AUSTRALIAN POSTAL CORPORATION

N 224 OF 2001

LINDGREN J

19 APRIL 2001

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant (“Ms Quitlong”) filed her application commencing this proceeding on 12 March 2001. By her application she seeks an extension of time in which to appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) given on 12 January 2001. By that decision the Tribunal directed, pursuant to subs 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth), that Ms Quitlong’s application to that Tribunal be dismissed. By her application to the Tribunal, Ms Quitlong had sought review of a decision affirming a determination that the respondent was not liable to pay workers compensation to her for her condition of paranoia schizophrenia.

2                     The present application was before this Court for directions on 21 March and 17 April. On both occasions the solicitor for the respondent made it clear that the respondent wished to apply for summary dismissal. Prior to the latter occasion, on 12 April, there was filed and subsequently served an affidavit of the respondent’s solicitor sworn 12 April 2001 in support of the respondent’s application for summary dismissal. On 17 April, I heard what Ms Quitlong had to say about summary dismissal. On that occasion I made it clear that the proceeding would be listed today for my decision on the respondent’s application for summary dismissal and that the respondent would file in Court this morning a notice of motion to that end. The respondent has indeed, by leave, filed in Court this morning a notice of motion for summary dismissal.

3                     Ms Quitlong telephoned my Associate this morning to say that she was ill and not able to attend Court this morning, but this is no reason why judgment should not be delivered.

4                     The case is a sad one in that it is clear, on the medical evidence, that Ms Quitong suffers from a serious mental illness.

5                     Ms Quitlong made her application for compensation on 17 January 2000. She had been employed by the respondent as a mail sorting officer at Parramatta. A sufficient summary of the background to the present application appears in the draft reasons for the decision of the Tribunal given on 12 January 2001 (the “draft” is a transcript of the reasons given orally – a final form of the Reasons for Decision has not issued but I am able to deal with the matter on the basis of the draft). I have taken the unusual course of setting out those draft reasons in full as follows:

“MR ALLEN: In this matter the applicant pursuant to an application lodged with the Tribunal on 26 May 2000 sought review of a reviewable decision made 29 March 2000 affirming a prior determination of 7 March 2000 that the respondent, the Australian Postal Corporation, was not liable to pay workers compensation to the applicant for the condition of paranoia schizophrenia. It is clear from the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 that the applicant's behaviour in the work place gave rise to concern by her managers. As a result she was referred to Maciers, Davidson, Trahare, clinical psychologists, for a psychological assessment. Later she was also referred to Dr White, psychiatrist.

The diagnosis of Dr White was that the applicant suffered from paranoia schizophrenia and it was determined that she be retired from her employment with the respondent on the grounds of incapacity. That duly took place. The applicant made a claim for compensation. The original claim was very vague and in a sense referred to the fact that she had been retired from her employment on medical grounds. Ultimately, however, she forwarded to the respondent a medical certificate from a Dr Aroney, which stated:

‘That Mrs Regina Quitlong is suffering from paranoia schizophrenia, needs to be medically retired on full compensation benefits if possible.’

The matter was then reviewed by a delegate of the respondent who determined on the bases of the reports of Dr White, psychiatrist, that the applicant's paranoia schizophrenia was unrelated to her employment. The decision was, as stated earlier, affirmed upon review. The applicant has not lodged with the Tribunal any evidence whatsoever which would contradict the report of Dr White. Indeed, she hasn't lodged any evidence at all with the Tribunal, and stated unequivocally to me today, that she is not under any treatment and that she is not suffering from paranoid schizophrenia.

Subsection 1 of section 42B of the Administrative Appeals Tribunal Act 1975, states:

‘Where an application is made to the Tribunal for the review of a decision, the Tribunal may at any stage of the proceeding if it is satisfied that the application is frivolous or vexatious dismiss the application.’

The term frivolous or vexatious is somewhat pejorative, however, its meaning is quite simple. I refer particularly to the notes to order 13, rule 5, of the rules of the New South Wales Supreme Court, and the annotation in Ritchie's Supreme Court practice. At paragraph 13.5.1, it is said of the equivalent rule, New South Wales Supreme Court rules:

‘This rule gives a discretionary power where the plaintiff's case is so weak, that to permit the proceedings to go to trial would be futile.’

In this matter, it seems clear on the material before me, that to permit this matter to go to trial in its current state, would be futile. There is not a scintilla of evidence from the applicant which in any way suggests that any mental condition suffered by her is in any way related to her employment. There is overwhelming evidence on the part of the respondent, that her diagnosed condition of paranoid schizophrenia, is not related to her employment.

One then has the added complication that the applicant currently is under no treatment for the condition, and indeed says she is not suffering from the said condition. In those circumstances, therefore, it would be pointless to waste time in having this matter go to trial.

The applicant does have other complaints, which I gather are in the nature of unfair dismissal, but that is not a matter with which this Tribunal is empowered to deal. One can only suggest that if she feels that she has a claim in that direction, she should seek legal advice.

As the matter stands however, it is dismissed pursuant to subsection 1 of section 42B as being frivolous and vexatious.”

6                     Order 20 r 2 of this Court’s rules provides as follows:

“2(1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding:

(a)               no reasonable cause of action is disclosed;

(b)               the proceeding is frivolous or vexatious; or

(c)                the proceeding is an abuse of the process of the Court;

the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.

(2)               The Court may receive evidence on the hearing of an application for an order under subrule (1).”

7                     Ms Quitlong has shown no satisfactory explanation for her failure to “appeal” to this Court within the 28 day period allowed by s 44 of the Administrative Appeals Tribunal Act 1975. Moreover, all the medical evidence which I have read makes it clear that the condition from which she suffers, while disabling her for work, is not causally related to her employment by the respondent. Accordingly, it would be futile for an appeal by her from the Tribunal’s decision to proceed to a hearing.

8                     I think that the present application is “frivolous or vexatious” within the meaning of par 2(1)(b) of Order 20, generally for the reasons given by the Tribunal.

9                     I order that the application be dismissed. The solicitor for the respondent seeks an order for costs and there is no reason why the ordinary order should not be made. I order that the applicant pay the respondent’s costs.

Associate:

Dated: 23 April 2001