FEDERAL COURT OF AUSTRALIA

Baker v Telstra Corporation Limited [2009] FCA 531

CHRISTOPHER EDWARD BAKER v TELSTRA CORPORATION LIMITED and COMCARE

QUD 23 of 2009

SPENDER  ACJ

7 MAY 2009

BRISBANE

THE COURT ORDERS THAT:

1          The application dated 17 April 2009 to appeal from a decision of the Administrative Appeals Tribunal be dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

2          The applicant pay to the first respondent the costs of the Motion filed by it on 27 April 2009 and the costs of the principal proceeding, to be taxed if not agreed.

3          The applicant pay to the second respondent the costs of the Motion filed by it on 29 April 2009 and the costs of the principal proceeding, to be taxed if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     There are before the Court two Notices of Motion.  The first was filed by the first respondent on 27 April 2009 seeking orders that the application dated 17 April 2009 to appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) be dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act).  A similar affidavit was filed by the second respondent on 29 April 2009. 

2                     The first respondent’s Motion was supported by an affidavit of Suzanne Louise Dole filed on 27 April 2009, and the second respondent’s Motion was supported by the affidavit of Anthony Giugni, filed on 29 April 2007.

3                     Mr Baker, on 5 May 2009, filed an affidavit in response.  That affidavit has annexed to it a number of documents, including witness statements and doctors’ reports, some of which appear to have been exhibits in the original hearing in the AAT.  The bundle of documents commences with a letter from Mr Baker which begins:

Due to the severely restricted timeframe for lodgement and serving of documents and vague recollection of evidence and reports presented at the Administrative Appeals Tribunal hearing please find enclosed response.

4                     And later he says:

Given until 4.30 pm Tuesday 5/5/09 to lodge and serve documents with a public holiday in the middle.  It seems a deliberate attempt to restrict a more detailed and legal response.

5                     He then lists a number of points of contention in the hearing, and concludes:

We feel with the appropriate legal help that a good clear winnable case is possible if an appeal date is granted.

6                     Mr Baker is representing himself and is not legally qualified.  After a lengthy hearing in the Tribunal, his claims for compensation recognition were dismissed.  On 20 January 2009, Mr Baker filed a Notice of Appeal from the decision of the Tribunal, constituted by Deputy President Hack and Professor Morley. 

7                     On the first directions date in respect of that Notice of Appeal, namely 14 March 2009, I made orders.  On 6 April I varied those orders so that they read:

(a)    The applicant have leave to file and serve an amended notice of appeal by 4 pm on Tuesday, 21 April 2009. 

(b)    In the event that an amended notice of appeal is not filed, these proceedings will stand dismissed. 

(c)    The matter be adjourned for directions on Friday, 1 May at 9.30 am.

(d)    Costs be reserved.

8                     On 17 April the applicant filed an Amended Notice of Appeal.  The questions of law alleged in that Notice of Appeal are as follows.

(1)        The Tribunal had erred in law by not adjourning hearing whilst Tribunal member was absent. 

(2)        The Tribunal had erred in law by failing to take into account the applicant’s disabilities and conditions by placing sufficient weight on medical evidence and placing sufficient weight that the applicant’s illnesses and conditions were due to applicant’s work history by exposure to asbestos products, poisons and other chemical substances in employment course.

[3]        The Tribunal erred in law by placing excessive weight upon the applicant’s testimony, which was badly affected by prescription medication due to the applicant’s medical conditions of anxiety, panic attacks, coughing, asthma, stress, sleep apnoea and osteoporosis. 

[4]        The Tribunal erred in law by placing excessive weight on irrelevant and unrelated evidence.

9                     His grounds are quite lengthy, but essentially say that the Tribunal failed to take into account or placed insufficient weight on certain evidence and placed excessive weight on other evidence.  He says that:

The decision was contrary to the evidence which supported a conclusion that the applicant was exposed to asthmagenic agents for a period of greater than eight years duration.

10                  The grounds also assert that defamatory allegations were made about his prior claim. 

11                  The difficulty for Mr Baker is that the requirements of an appeal to this Court are specified in the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), and in the FCA Act.  Section 44 of the AAT Act relevantly provides:

(1)        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.

12                  Order 53 of the Federal Court Rules regulates the practice and procedure to be followed in respect of appeals from the Administrative Appeals Tribunal.  Order 53 r 3 relevantly provides: 

 (2)       The notice of appeal shall be signed by the applicant or his solicitor and shall state:

(a)        the decision of the Tribunal from which the appeal is brought, the members constituting the Tribunal and the date when the decision was made;

(b)        the question or questions of law to be raised on the appeal;

(c)        the order sought; and

(d)        briefly, but specifically, the grounds relied on in support of the order sought.

(3)        The Court may, on such terms and conditions as the Court thinks fit, allow a notice of appeal to be amended.

(4)        On the hearing of an appeal, the applicant shall not, without the leave of the Court, raise any question of law or rely on any ground in support of the order sought other than those stated in the notice of appeal.

13                  Section 31A of the FCA Act relevantly provides:

(2)        The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: 

(a)        the first party is defending the proceeding or that part of the proceeding; and

(b)        the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)        For the purposes of this section, a defence to a proceeding or part of a proceeding need not be:

(a)        hopeless, or

(b)                bound to fail;

for it have no reasonable prospects of success.

14                  It is plain that the questions numbered 2, 3 and 4 are not questions of law, the only basis on which an appeal can be brought from the Tribunal to the Federal Court.  Each of them alleges a failure to take into account certain matters, placing excessive weight on some matters or placing excessive weight on irrelevant and unrelated evidence.  Those allegations do not become elevated to questions of law merely by adding the words “the Tribunal erred in law” in acting in those respects.

15                    The first question of law alleged in the Amended Notice of Appeal is:

(1)        The Tribunal had erred in law by not adjourning hearing whilst Tribunal member was absent.

16                  That allegation does not satisfy the requirements of the rules, but appears to be a reflection of the fact that on the second last day of a lengthy hearing to the Tribunal, Professor Morley was absent from the bench.  

17                  The transcript describes the Administrative Appeals Tribunal as:

Deputy President P.E. Hack SC, Associate Professor J.B. Morley, Member (in absentia).

18                  It records the proceedings erroneously as at 10 pm on Friday 10 October 2008 and notes that it is a continuation from 9 October 2008.  The transcript records that Ms A Frizelle appears for the applicant, Mr P Elliott appears with Mr M Carey for Telstra, and Mr T Howe QC appears for Comcare.  The Deputy President commenced the proceedings on that day by saying:

Now, the observant amongst you will notice that Dr Morley is not sitting with me this morning.  It seems since that we are only going to be tendering documents and making procedural directions it seemed to be a bit of a waste to bring him down from Toowoomba for that purpose.  We can, however, link him in on the phone if anybody thinks that is necessary but if you are all content that he will be given copies, of course, of any documents that become exhibits; if you are all content with that we will proceed in his absence.  Any demur to that proposition? All right.  Now there are some documents still to be tendered. Is that right?  We will start with you, Ms Frizelle.  Have you got anything else to be tendered?

19                  And then later, in response to that inquiry, the Deputy President said:

All right.  Now the report of Dr Roger Allen of 14 February 2008 will be exhibit 64.

20                  Later Ms Frizelle tendered the clinical notes of Dr Springfield from 1997, which were marked Exhibit 65.  In my opinion the procedure adopted by the Tribunal on 10 October 2008 was a serious irregularity.  The question however is whether, notwithstanding that it is not a question of law articulated in the notice of appeal, any appropriate question of law might be founded on it, such that it would enjoy prospects of success.  Both of the respondents submitted that the absence of Professor Morley might be suggested to be a denial of procedural fairness to Mr Baker, but that any such question of law based on the denial of procedural fairness would in the circumstances of the case not enjoy any prospects of success.

21                  The matter, however, is not simply a question of denial of procedural fairness.  I am quite satisfied on the material that the Tribunal hearing the matter was not biased against Mr Baker nor was he denied the right to be heard.  In particular on 10 October 2009, in the absence of Professor Morley, Mr Baker’s counsel tendered and had admitted into evidence two bundles of reports relevant to his case.  The reasons for judgment plainly reveal that his case was considered.  He was in all respects the recipient of the second limb of the rules of natural justice, the audi alteram partem rule, and so there could be no reasonable prospect of success on the ground that he has been denied the right to be heard.  However, the absence of one of the members constituting the Tribunal for part of the hearing is no mere slip.  That circumstance is different in quality to, say, the hearing of a murder trial where, for part of the evidence, only 11 of the jurors are present.  In this particular case, the proceedings on 10 October 2008 consisted merely of the receipt of evidence, including the tender of reports on Mr Baker’s behalf, and directions concerning the addresses in relation to the matter.  The irregular procedure was with the acquiescence of counsel for all parties.

22                  There would be no difficulty, for instance, in the Tribunal saying that it would receive evidence by post of any relevant medical reports or clinical notes.  Adopting that procedure would not involve an irregularity.  In this particular case, the Deputy President purported to constitute the Tribunal by himself for that purpose. The procedure did involve the irregularity, no doubt for reasons of convenience, but I am quite satisfied that no unfairness was occasioned to Mr Baker by the procedure that was adopted. 

23                  In those circumstances, not only is there no question of law articulated in the Notice of Appeal, but any question of law founded on the consideration that when evidence was tendered by Mr Baker’s counsel,  Professor Morley was not physically present in the Tribunal hearing room, does not enjoy any prospects of success.

24                  The real questions which Mr Baker wishes to raise concern what truly are the merits of the decision and the specific aspects of the hearing before the Tribunal.  Mr Baker submits that he was denied natural justice because, as the result of medications that he was taking at the time of the hearing, he was not in a fit state to give evidence.  And in relation to his being represented by counsel, he suggested that Ms Frizelle had been briefed only lately and that, as a consequence, there was a denial of natural justice in respect of some aspects of the evidence that was dealt with in the Tribunal.  Those complaints underline the fact that Mr Baker’s fundamental complaints concern the merits and the weight to be given to the evidence in the Tribunal and, in particular to his capacity to be able to give evidence, and the errors which the Tribunal is said to have made by placing excessive weight or inappropriate weight on certain matters. 

25                  Mason J, before he was Chief Justice of Australia, said in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited (1986) 162 CLR 24, at 41:

… it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power …

26                  The fundamental complaints of Mr Baker seek merits review.  It is not competent for the Federal Court to evaluate the evidence before the Tribunal in its jurisdiction to entertain an appeal to it pursuant to s 44 of the AAT Act. 

27                  The fact is that Mr Baker, appearing for himself without the benefit of legal training and legal assistance, has not complied with the requirements for an appeal from the Tribunal to this Court.  The complaints which he articulates essentially seek merits review, and the Federal Court has no jurisdiction to entertain a review of a decision of the Tribunal on the merits.  For these reasons, the appeal by Mr Baker falls within s 31A(2) of the FCA Act. There are no real prospects of success of his appeal, for the reasons which I have attempted to illustrate. 

28                  For these reasons, the Notices of Motion are successful.  I make orders in terms of paragraph 1 of each Notice of Motion. 

29                  The orders that I make are that:

(1)        The application dated 17 April 2009 to appeal from a decision of the Administrative Appeals Tribunal be dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

(2)        The applicant pay to the first respondent the costs of the Motion and the costs of the proceeding, to be taxed if not agreed.

30                  In relation to the Motion filed by the second respondent, I make the same order, namely, that:

(1)        The application dated 17 April 2009 to appeal from a decision of the Administrative Appeals Tribunal be dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

31                  And on the second Motion I make the order:

(2)        The applicant pay to the second respondent the costs of the Motion and the costs of the principal proceeding, to be taxed if not agreed.

Associate:

Dated:         21 May 2009