FEDERAL COURT OF AUSTRALIA

Goodricke v Comcare [2011] FCA 694

THE COURT ORDERS THAT:

1.    The Further Amended Notice of Appeal as filed on 10 December 2010 is dismissed.

2.    There be no order as to costs.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    The Applicant was previously employed by Health Services Australia as a senior systems engineer.

2    He suffered an injury and applied for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “Act”). Following an application for review filed with the Administrative Appeals Tribunal, that Tribunal published its reasons for decision on 1 June 2010: Re Goodricke and Comcare [2010] AATA 410.

3    Before the Tribunal, Mr Goodricke claimed incapacity payments under s 19 of the Act from 7 August 2004 to the date of decision. Comcare conceded that from 23 January 2006 to 27 March 2009, Mr Goodricke had an incapacity to engage in work at the same level at which he was engaged before his injury – but that his entitlement under s 19 was nil due to the extent of his residual capacity for suitable employment. The Tribunal thus focussed upon the period from 7 August 2004 to “the present”. The Tribunal concluded that from December 2005 Mr Goodricke had a capacity to engage in full-time employment but had failed to seek suitable employment.

4    According to an affidavit filed on behalf of the Respondent, the Notice of Appeal as apparently first filed in this Court stated the “questions of law” to be resolved as follows:

Awaiting legal advice. Insufficient time to obtain advice since receipt of judgment

Such a Notice of Appeal obviously failed to comply with Order 53 r 3(2)(b) of the Federal Court Rules. Nor was the purported explanation, without more, any acceptable reason for such non-compliance.

5    But such matters of history assume, perhaps, little current relevance. Pursuant to leave granted by Her Honour Justice Stone, an Amended Notice of Appeal was filed on 24 September 2010. A Notice of Motion was filed on behalf of Comcare on 9 November 2010 seeking an order that the proceeding be dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth). A Further Amended Notice of Appeal was filed on 1 December 2010.

6    Another Further Amended Notice of Appeal was filed on 10 December 2010. Notwithstanding deficiencies in this Further Amended Notice of Appeal, the view was formed at a directions hearing held on 18 February 2011 that the most efficient way of resolving the Applicant’s challenge to the decision of the Tribunal was to set the proceeding down for hearing.

7    The Applicant, who is now unrepresented, requested that the hearing of his appeal be transferred from Canberra to either Brisbane or Mackay. With the consent of the Respondent, the proceeding was transferred to Brisbane. Directions were made for the Applicant and the Respondent to file an Outline of Submissions. Directions were made for the Respondent’s Outline of Submissions to be directed to each of the general areas of concern which had been raised by the Applicant. Written submissions were filed by both parties.

8    Oral submissions were heard in Brisbane on 4 April 2011.

The Grounds of Appeal

9    Notwithstanding repeated opportunities having been extended to the Applicant to identify the questions of law he seeks to have resolved by this Court, the position remains that no question or questions of law have been identified with any degree of particularity. The failure to do so is a reason in itself for dismissing the appeal.

10    But consideration has nevertheless been given to whether the concerns that the Applicant has identified could be properly framed as questions of law. In an appropriate case it has been accepted that the Court may be “prepared to frame questions in order to found its jurisdiction”: Secretary, Department of Education, Employment and Workplace Relations v Ergin [2010] FCA 1438 at [11] per Tracey J; Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80 at [16] per Marshall, Tracey and Flick JJ.

11    With the not inconsiderable assistance provided by the Respondent’s Outline of Submissions, it is possible to discern that the Applicant wishes to primarily contend that questions arise as to whether:

    the Tribunal erred in its construction and/or application of s 19 of the Safety Rehabilitation and Compensation Act 1988 (Cth) and, in particular, its construction and/or application of the phrase “suitable employment”;

    the Tribunal erred in its construction and/or application of s 8 of the Act and, in particular, in carrying out its own calculation of “normal weekly earnings”;

    the Tribunal erred in not construing both ss 8 and 19 by reference to Article 23 of the Universal Declaration of Human Rights.

It is also understood that the Applicant contends that he was denied a proper opportunity to present his case before the Tribunal. From the oral submissions advanced during the course of the hearing on 4 April 2011, it would also appear that the Applicant now also wishes to contend that:

    the manner in which the Respondent administers the Act, and its failure to make payments “weekly”, exposes it to error by reason of forcing recipients of compensation into “abject poverty”.

Presently left to one side is any consideration of whether each of these concerns was an issue advanced for consideration before the Tribunal.

12    Even though it may have been possible to reframe at least some of the concerns expressed by the Applicant into “questions of law”, it is not considered that any reframing would lead to any different result.

13    Notwithstanding the personal commitment manifest in the Applicant’s oral submissions and his genuine belief in the arguments he sought to advance, the appeal is to be dismissed.

A Failure To Identify a Question of Law

14    The deficiencies in the Applicant’s multiple Notices of Appeal have previously been raised with him. Notwithstanding the fact that he is unrepresented, he must nevertheless comply with the rules of this Court. The Federal Court Rules of relevance to this proceeding serve to ensure that the Court acts within the jurisdiction entrusted to it.

15    The jurisdiction which the Applicant seeks to invoke is that conferred by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), namely the jurisdiction to hear an appeal from a decision of the Tribunal “on a question of law”. Although expressed in terms of an appeal, the jurisdiction being invoked is the original jurisdiction of the Court and not its appellate jurisdiction: cf. Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 410 per Bowen CJ and Deane J.

16    The subject matter and scope of the appeal is limited to the question or questions of law identified and the Court has no jurisdiction to entertain a re-hearing of the whole matter that was before the Tribunal. The importance of identifying the “question of law” to be resolved on appeal has been repeatedly restated and was emphasised as follows by Bowen CJ, Fisher and Lockhart JJ in Brown v Repatriation Commission (1985) 7 FCR 302 at 304 where their Honours observed:

The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it.

See also: Kowalski v Military Rehabilitation and Compensation Commission [2010] FCAFC 10 at [38] to [39], 114 ALD 8 at 19 per Marshall, Tracey and Foster JJ.

17    The importance of identifying the “question of law” to be resolved is further emphasised by Order 53 r 3 of the Federal Court Rules which provides in part as follows:

Title of proceedings

(1)    …

(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 upon 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.

18    Rule 3(2)(b) assumes particular importance. That rule requires a notice of appeal to state “the question or questions of law to be raised on appeal”. The question or questions “should be stated with precision as a pure question of law”: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [18], 76 ALD 321 at 325 per Branson and Stone JJ. The Court, it has been said, requires “strict compliance” with this rule: Ibarcena v Secretary, Department of Family and Community Services [2001] FCA 453 at [2], 33 AAR 76 at 77 per Finn J.

19    Compliance with Order 52 r 3, as with other rules of the Court, may however be dispensed with pursuant to the discretion conferred by Order 1 r 8.

20    But no occasion for the exercise of that discretion arises in the present proceeding. The Applicant has been given repeated opportunities to amend his Notice of Appeal so as to comply with (in particular) Order 53 r 3(2)(b). He has failed to do so.

21    Moreover, the opportunity was extended to him to advance such submissions as he saw fit during the course of the hearing held in Brisbane. Although he seemed at times to understand the confined role entrusted to this Court under s 44 of the Administrative Appeals Tribunal Act, his oral submissions went well beyond the constraints imposed by that section and well beyond arguments which were advanced on his behalf before the Tribunal.

22    No injustice, it is considered, arises by reason of his failure to identify any question or questions of law. He has advanced no submission, with respect, which exposes any error of law – however it may be expressed or reframed or redrafted.

Suitable Employment — Section 19

23    There is, in particular, no error exposed in the reasons for decision of the Tribunal as to its construction and application of the phrase “suitable employment”.

24    A principal concern the Applicant wished to agitate was the approach taken by the Tribunal with respect to the work he performed in Papua New Guinea for an entity identified as “Pacific Partners”.

25    It is understood that the Applicant seeks to contend that paragraphs [98] and [103] of the Tribunal’s reasons for decision expose errors in respect to the application of s 19 of the Act to the facts.

26    Section 19 deals with the manner in which compensation is calculated. Section 19(2) requires there to be a deduction from the “normal weekly earnings” of an employee (ie, his “NWE”) an amount that he is able to earn in “suitable employment” (his “AE”). Subsection (2) thus provides as follows:

Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:

NWE – AE

where:

“AE” is the greater of the following amounts:

(a)    the amount per week (if any) that the employee is able to earn in suitable employment;

(b)    the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.

“NWE” is the amount of the employee’s normal weekly earnings.

Section 19(4)(a) provides that, for the purposes of s 19(2), in calculating the amount “an employee is able to earn in suitable employment, Comcare shall have regard to … the amount per week that the employee is earning in that employment”. Section 19(4)(e) refers to those circumstances in which an employee has “failed to seek suitable employment” and s 19(4)(f) refers to circumstances where an employee has failed to accept an offer of employment or failed to seek employment as was “in Comcare’s opinion, reasonable in all the circumstances”.

27    The phrase “suitable employment” is defined in s 4 as follows:

“suitable employment” , in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:

(a)    in the case of an employee who was a permanent employee of the Commonwealth or a licensee on the day on which he or she was injured and who continues to be so employed–employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:

(i)    the employee’s age, experience, training, language and other skills;

(ii)    the employee's suitability for rehabilitation or vocational retraining;

(iii)    where employment is available in a place that would require the employee to change his or her place of residence–whether it is reasonable to expect the employee to change his or her place of residence; and

(iv)    any other relevant matter; and

(b)    in any other case–any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).

28    Paragraphs [98] and [103] emerge in the Tribunal’s reasons as follows:

The amount per week that Mr Goodricke is able to earn in suitable employment under section 19(4), according to the definition of “suitable employment” in section 4(1)

…

[98] Section 19(4)(a) covers periods when “the employee is in employment”. In the period under consideration, namely from August 2004 to the present, Mr Goodricke was first employed at the Australian War Memorial as a level 3 systems computing support officer. That is one of the identified forms of employment which would be “suitable”. The amount of compensation will, therefore, be considered under the discussion of the operation of s 19(3). Subsequently, Mr Goodricke has been employed by Pacific Partners earning a minimal amount of no more than $55.00 per week. This is not listed as employment which is “suitable”, so will not be further considered.

[99] Sections 19(4)(b)–(d) do not apply. Mr Goodricke has not received an offer of suitable employment which he “failed to accept”, “failed to engage in or to continue to engage in”, or was made conditional on Mr Goodricke completing a “rehabilitation or vocational retraining program” which he failed to comply with.

Whether Mr Goodricke has failed to seek suitable employment under section 19(4)(e)?

[100] The central issue in considering s 19(4) relates to s 19(4)(e), namely, whether Mr Goodricke has “failed to seek suitable employment”.

[101] Since Mr Goodricke was engaged in suitable employment in the period August 2004 to February 2005, the question has to be asked only in relation to the time since February 2005. Initially, Mr Goodricke worked for Pacific Partners in Papua New Guinea for some three months before returning to Canberra. That period is one in which he was not working in suitable employment. At the same time from February 2005 until July 2005, Mr Goodricke provided evidence that he was assiduously applying for IT jobs. In that period, for example, he appeared to be close to accepting a position with Defence, until the issue of a security clearance arose.

[102] By July 2005, Mr Goodricke had returned to Canberra. In the period July to December 2005 the Tribunal only has the evidence from Mr Goodricke at the hearing of his job-seeking in this period. He said he put ads in The Canberra Times for doing computer repair and other work, he was buying and doing up old cars for sale, and was doing some computer repair work. He also said he was using several job-seeking agencies in this period and the Tribunal has no reason to doubt this. The Tribunal has the evidence of these attempts as provided by one of the three or so providers Mr Goodricke was using. The Tribunal also infers that since the Verossity evidence of job-seeking refers principally to IT work, and this has been the field in which Mr Goodricke has the greatest skills and experience, that it would have been these kinds of jobs he would have been seeking. The Tribunal finds, as a consequence, that from February 2005 to December 2005, Mr Goodricke was taking steps to find “suitable employment”.

[103] From December 2005 Mr Goodricke has been working for Pacific Partners. That work, as the Tribunal has already found, although personally satisfying to Mr Goodricke, is not considered to be “suitable employment” for the purposes of the Act. Mr Goodricke said in written and oral evidence, and when providing information to medical and other experts, that at present he has no intention of looking for other work. For these reasons, the Tribunal finds that since December 2005, Mr Goodricke has not been seeking “suitable employment”. Nor, in the Tribunal’s view, is Mr Goodricke’s admittedly laudable beliefs in the worthwhile nature of this form of employment sufficient to justify Mr Goodricke’s choice of occupation, given his skills and experience. On that basis, his choice is not considered to be “reasonable in the circumstances” (s 19(4)(f)).

29    Those paragraphs, it should be noted, follow the Tribunal previously setting forth at paragraph [61] of its reasons evidence given as to what constituted “suitable employment” and the calculations performed for the purposes of s 19(3), namely:

(Adjustment percentage × NWE) – AE

These were calculations undertaken with respect to employment as a “Computer Network and Systems Engineer”; “Customer Service Manager”; “Youth Worker”; “Welfare Worker”; “ICT Trainer”; “Program Administrator”; “Sales Assistant (General) – Computers” and “Inquiry Clerk”.

30    The argument for the Applicant focuses upon paragraph [98] of the Tribunal’s reasons for decision and, in particular, the finding that the Applicant “has been employed by Pacific Partners earning a minimal amount of no more than $55.00 per week. This is not listed as employment which is ‘suitable’, so will not be further considered”. The argument is understood to be that “suitable employment” includes any employment that an employee in fact pursues and for which he is qualified. If such employment pays less than he could otherwise earn in other employment which is otherwise “suitable”, the employment in fact being pursued nevertheless remains “suitable employment”. The Tribunal was in error, so the Applicant contends, in confining “suitable employment” to those occupations set forth at paragraph [61]. His oral submissions stressed the difficulties confronted in working for Pacific Partners – but such employment, the Applicant contended, at least provided him with a regular income, food and lodging.

31    That argument is rejected.

32    The phrase employed by the legislature is “suitable employment” rather than (for example) “any employment”. And in determining what is “suitable employment” the legislation directs attention to specified criteria. Those criteria, including the reference to “the employee’s age, experience, training, language and other skills”, direct attention to identifying that employment which an employee is able to perform and for which he is qualified. It would be an odd construction of the phrase “suitable employment” if an injured employee could shun employment which he was otherwise able and qualified to undertake so that he could henceforth engage in only that work which he unilaterally considered provided personal security, satisfaction or gratification. An injured employee may so choose; but s 19 will continue to operate in the manner intended by the legislature.

33    And, in any event, the conclusion of the Tribunal as to what was or was not “suitable employment” was a finding of fact which was open to the Tribunal to make. No error of law is exposed in making that finding of fact.

34    To the extent that the Applicant seeks to contend that the Tribunal did not “have regard” to the position he held at Pacific Partners, the contention is rejected. The Tribunal in its reasons for decision clearly “had regard to” the employment of the Applicant at Pacific Partners. It also formed the view that “his choice is not considered to be ‘reasonable in the circumstances’ (section 19(4)(f))”. No error of law is discernible in those reasons. No error in the construction or application of s 19(4) is exposed.

Suitable Employment — Section 8

35    It is understood that the Applicant also wishes to contend that paragraph [14] of the Tribunal’s reasons for decision exposes an error of law “if read in the context of section 8”. Reliance is also placed upon paragraph [71] of the Tribunal’s reasons for decision.

36    Section 8(1) deals with the calculation of “normal weekly earnings” (“NWE”) and does so by reference to a formula, including consideration of the average number of hours worked in each week (“NH”) and the average hourly ordinary time rate of pay (“RP”). Section 8(2) deals with the situation where an employee is required to work overtime on a regular basis.

37    These two subsections provide as follows:

Normal weekly earnings

(1)    For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2)) before an injury shall be calculated in relation to the relevant period under the formula:

(NH × RP) + A

where:

“NH” is the average number of hours worked in each week by the employee in his or her employment during the relevant period;

“RP” is the employee’s average hourly ordinary time rate of pay during that period; and

“A” is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.

(2)    Where an employee is required to work overtime on a regular basis, the normal weekly earnings of the employee before an injury shall be the amount calculated in accordance with subsection (1) plus an additional amount calculated in relation to the relevant period under the formula:

NH × OR

where:

“NH” is the average number of hours of overtime worked in each week by the employee in his or her employment during the relevant period; and

“OR” is the employee’s average hourly overtime rate of pay during that period.

38    Paragraphs [14] and [71] of the Tribunal’s reasons provide as follows:

Evidence of Mr Goodricke

…

[14] From 13 October 1999, Mr Goodricke was employed by Health Services Australia as a senior systems engineer preparing systems for the “Y2K” changeover. His employment was under a fixed-term contract on a salary of $1150.16 per week with no provision for overtime. It is accepted that his working hours were 36.75 hours per week. He said when he arrived the system was a “mess” and he had to work intensively and do a lot of overtime to resurrect the situation. Prior to then, he had worked with the Australian Prudential Regulation Authority (APRA), also on the Y2K changeover.

…

Incapacity for work

…

[71] Mr Goodricke’s evidence was that his position with Health Services Australia as a computer systems engineer was full-time and indeed required extensive overtime. However, as the position was under a fixed-term contract with no provision for overtime, his contract was considered to mean a 36.75 hour week. So his capacity must be tested against work as a computer systems engineer on at least a full-time basis. Since the testing is being done for the period 2004 to 2006, the Tribunal has had regard to the earlier medical assessments.

39    The concern of the Applicant is expressed in his written correspondence as follows:

“… It will most probably be argued that the August decision is definitive with regards to NWE and that once the tribunal has decided the NWE the tribunal will not revisit it. However in saying ‘It is accepted that his working hours were 36.75 hours per week.’ paragraph 14 the member has made an error at law if read in the context of section 8. If the senior member had wanted to leave the door closed to section 8 entitlements she would have simply referred to the August determination in her reasoning and not revisiting the hour worked and not made an error at law by spelling out the calculation. …”

The “August determination” is a reference to a determination made by consent by the Tribunal on 6 August 2004 as to the Applicant’s “normal weekly earnings” as earlier noted at paragraph [4] of the present reasons of the Tribunal.

40    It is understood that the Applicant seeks to contend that the Tribunal erred in undertaking its own calculation of “normal weekly earnings” for the purposes of s 8(1) and also failed to include an overtime component in accordance with s 8(2).

41    Neither contention is accepted.

42    Before the Tribunal it was common ground that there was “no issue” as to “normal weekly earnings”. The following exchange thus occurred between the Counsel for the Applicant (Mr Livingston) and Counsel for the Respondent (Ms Walker) during submissions:

MR LIVINGSTON: … I assume there is no issue about the net weekly earnings figure, and I assume that it’s not capable of being an issue. I think I raised this matter earlier, but it seems to me if there is an order from the tribunal that the net weekly figure at a particular point in time was X, then that presumably would have to be the position as far as the proceedings are concerned.

MS WALKER: The respondent’s position is that there is no argument about the normal weekly earnings, and I had to wrack my brain as to what I said, but actually, in the facts and contentions, we have put a summary of the normal weekly earnings and the increases in CPI over – on it for, I think, the last five or six years. And those are what we would say are the correct calculations, and do stem from that which was agreed in consent terms previously,

PROF CREYKE: Thank you.

That exchange should also be considered in the factual context where there had been repeated references made throughout the written materials before the Tribunal, which remained uncontested, as to the “normal weekly earnings” of the Applicant.

43    No part of the Tribunal’s reasons indicates any departure from that common understanding. Nor should there be any departure now from the basis upon which the proceeding was conducted before the Tribunal.

44    It is not considered that any error of law – or “question of law” – emerges from the paragraphs of the Tribunal’s reasons now relied upon by the Applicant. The Tribunal was simply setting forth at paragraph [14] the evidence of Mr Goodricke. Paragraph [71] is also an account of his evidence and considered, not in the context of the Tribunal itself engaging any process of calculation, but rather in the context of considering his “incapacity for work”.

The Universal Declaration of Human Rights

45    The reliance sought to be placed by the Applicant upon the Universal Declaration of Human Rights is misplaced.

46    Express reliance is placed upon Article 23 which provides as follows:

(1)    Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

(2)    Everyone, without any discrimination, has the right to equal pay for equal work.

(3)    Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.

(4)    Everyone has the right to form and to join trade unions for the protection of his interests.

47    The argument for the Applicant is understood to be a challenge to the conclusions of the Tribunal expressed at paragraphs [92] and [103]. Paragraph [92] provides as follows:

[92] Finally, the Tribunal notes that what is “suitable employment” must take account of the fact “that where employment is available in a place that would require [him] to change his place of residence, whether it is reasonable to expect [him]” to do so. The Tribunal notes that in order to undertake most of these occupations Mr Goodricke would need to return to live in Australia. However, the Tribunal, while accepting that Mr Goodricke has a strong commitment to his current missionary/support role for Pacific Partners and that he believes he is doing worthwhile work in that position, it is not unreasonable in deciding whether Comcare should be liable to compensate him, that he should be prepared to move in order to obtain work commensurate with his skill level and experience, thus reducing the burden on the public purse. In that context, the Tribunal notes that the information in the DEEWR table headed Vocational Capacity Centre for these occupations in the Australian locations with which Mr Goodricke has closest links, Tasmania and the ACT, indicate that the job prospects are good for all these occupations with the exception of an ICT trainer, where the prospects are average.

Paragraph [103] likewise repeats the Tribunal’s approach to what constitutes “suitable employment”.

48    The argument in reliance upon Article 23 is variously expressed but is understood to be an argument that the Tribunal has misconstrued both ss 8 and 19(4).

49    The former argument is understood to be that Article 23 precludes an approach to the construction of the phrase “suitable employment” which requires a person to change his place of residence.

50    The latter argument is that the Tribunal erred at paragraph [103] of its reasons for decision when it concluded that his “choice of occupation, given his skills and experience” was not “reasonable in the circumstances” within the meaning of and for the purposes of s 19(4)(f).

51    However the argument is expressed, it is misplaced as provisions of international agreements or treaties do not form part of Australian municipal law: Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 447 per Sackville, North and Kenny JJ.

52    An alternative way in which it is understood the Applicant sought to place reliance upon the Universal Declaration of Human Rights is to contend that its provisions were nevertheless matters to which the Tribunal should have had regard when considering what constituted “suitable employment”. But even in respect to this alternative argument, the Applicant meets with no greater success. Those considerations relevant to the decisions to be made are those to be primarily found within the terms of the Act itself – and not in the Universal Declaration of Human Rights.

53    No reliance can thus be placed upon Article 23 as being part of Australian domestic law nor as the source of any argument that the definition of the phrase “suitable employment” is to be read as confined by such obligations as Article 23 may impose.

An Opportunity To Present His Case?

54    One final matter should be mentioned.

55    It is understood that the Applicant wishes to contend that he has been denied an opportunity to present his case before the Tribunal both by reason of the date upon which the Tribunal proceeded to hear his case and by reason of his unavailability for the entirety of the hearing.

56    The former argument was not clearly expressed but apparently springs from a concern as to the attendance by the Applicant at a pain management course, known as “ADAPT”. A party to an administrative proceeding, it may be accepted, may be denied an opportunity to participate in a hearing if (for example) the hearing has been set down at a time when he cannot attend or at a place where he cannot attend: cf. Re Robinson [1955] NZLR 106. cf. Woodley v Woodley and Meldrum [1928] NZLR 465. “The place at which a hearing is held is a matter of considerable, and sometimes of vital, consequence to the parties”: Administrative Adjudication in the State of New York (Report to the Honourable Herbert H. Lehman, 1942 at page 124). But, in the present proceeding, no such concern was expressed before the Tribunal and any such argument – if previously raised – could well have been the subject of further evidence. However expressed, it is not an argument which can now be relied upon.

57    The latter argument has its origins in a submission made by the Applicant when the matter was being set down for hearing, and when the Applicant was appearing in person. He then stated that he was unable to attend the Tribunal hearing on the afternoon of the hearing. The circumstances in which he became unavailable were variously expressed but it would appear that he became unavailable because he admitted himself to a medical facility.

58    This was not a matter raised either in the Further Amended Notice of Appeal or in the Outline of Written Submissions filed by the Applicant. But it should be briefly addressed – lest an unrepresented party be left with a grievance that a matter raised orally has not been considered.

59    Any suggestion that a party to a proceeding before the Tribunal has been denied or deprived of an opportunity to present his case is a matter that warrants serious consideration. The Tribunal was established as a forum entrusted with the responsibility to conduct its proceedings “with as little formality and technicality, and with as much expedition, as … a proper consideration of the matters before the Tribunal permit”: Administrative Appeals Tribunal Act 1975 (Cth) s 33(1)(b). It was also a forum entrusted with the responsibility to “ensure that every party … is given a reasonable opportunity to present his or her case … to inspect any documents to which the Tribunal proposes to have regard … and to make submissions in relation to those documents”: s 39(1).

60    The terms in which s 39(1) is expressed make it self-evident that the responsibility entrusted to the Tribunal is to ensure that a party is given “a reasonable opportunity to present his or her case…”. It is not part of the task entrusted to the Tribunal to ensure that a party takes “the best advantage of the opportunity” : cf. Secretary, Department of Family and Community Services v Verney [2000] FCA 570 at [45], 60 ALD 737 at 748 per Cooper J. “Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled”: Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J (Smithers and Fisher JJ agreeing).

61    But a party may be denied a “reasonable opportunity to present his … case” by reason of circumstances beyond his control – such as where telephone communications between the party in the Philippines and the Tribunal were obstructed “by an earthquake of calamitous proportions”: Opitz v Repatriation Commission (1991) 29 FCR 50 at 58 per Hill J. Circumstances may indeed be unwanted, even though beyond the control of a party: Naisauvou v Minister for Immigration and Multicultural Affairs [1999] FCA 86, 89 FCR 435. Police had there arrived with a warrant for the arrest of the applicant whilst he was giving evidence. The warrant was executed at the conclusion of his evidence. In allowing the appeal, Moore J reasoned as follows:

[26] In my opinion it would have been open to the Tribunal to have indicated to the police that it was necessary for the applicant to remain at the hearing until the hearing had concluded. There would have been no reason, in principle, why the officers could not have been asked to return to arrest the applicant at the conclusion of the hearing or, if they were concerned about him absconding, asked to effect the arrest immediately but on the basis that the removal of the applicant from the hearing room be deferred until the conclusion of the hearing. Had this course been followed the opportunity spoken of by Brennan J in Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 would have been afforded the applicant and he would have been given a fair hearing.

[27] Because the Tribunal did not adopt this course, the applicant was not present when witnesses called on his behalf were cross-examined and when the opportunity arose for their re-examination. Nor was he present when his unqualified representative was confronted with strongly expressed views of the Tribunal concerning the prospect of the applicant re-offending about which the representative of the Minister then made submissions. It is possible that the applicant would have done either very little or nothing by way of instructing Mr Leone in the further conduct of his case had he remained. However the fact that the best opportunity might not have been taken advantage of does not conclude the inqury. As Deane J said in Kioa v West (1985) 159 CLR 550 at 632 in relation to a denial of an opportunity to be heard before a deportation order was made:

“Clearly enough, the mere circumstance that there is no apparent likelihood that the person directly affected could successfully oppose the making of a deportation order neither excludes nor renders otiose the obligation of the administrative decision-maker to observe the requirements of procedural fairness. Indeed, the requirements of procedural fairness may be of added importance in such a case in that they ensure an opportunity of raising for consideration matters which are not already obvious.”

[28] The critical issue is whether the applicant was deprived of the opportunity of doing so in circumstances where he might have desired to do so. He was and this, in my opinion, constituted a denial of procedural fairness. This conclusion is sufficient to dispose of the appeal. …

62    In the proceeding before the Tribunal in the present appeal the Applicant was represented by Counsel, Mr Livingston. The events whereby the Applicant became unable to further attend the Tribunal hearing are for present purposes sufficiently set forth in the following exchange between the Senior Member of the Tribunal (Professor Creyke) and Mr Livingston:

PROF CREYKE: Please sit. I gather you’ve had some difficulties over the lunch hour, Mr Livingston?

MR LIVINGSTON: In a vicarious way, Professor. I did get the message that Mr Goodricke was feeling unwell during the course of the morning but I wasn’t able to talk to him after we adjourned because he wasn’t here and I have heard that he did approach a victims group that apparently are nearby and certainly the lady I spoke to there felt that he was quite unwell and needed some medical attention and they have gone about arranging it. I have only just got off the phone to Mr Goodricke. Apparently, an ambulance has been called for but hasn’t arrived. When I spoke to him he seemed quite coherent and stable and he indicated that he was content for the matter to proceed in his absence this afternoon.

PROF CREYKE: I had an earlier phone call at the beginning of – immediately after our adjournment, also from the victims support centre, and I too told them he was not necessary for this afternoon. That was the only question I was asked. So, yes, let’s hope he gets the help he needs.

MR LIVINGSTON: Yes.

PROF CREYKE: All right. Mr Livingston.

That exchange occurred immediately after the luncheon adjournment. By that stage all of the evidence had been concluded. The Applicant had given his own evidence in chief and had been cross-examined and had been present when the other witnesses had given their evidence. After the exchange the Tribunal heard submissions and reserved its decision.

63    There may well be circumstances where the inability of a party to be personally present when submissions are being advanced to the Tribunal may constitute a denial of the opportunity guaranteed by s 39. Even though evidence from both sides may have concluded, an opportunity to “present his or her case”, let alone an opportunity “to make submissions”, may necessitate a party being present throughout. The fact that a party may be represented by legal advisors who remain present throughout a Tribunal hearing may in some circumstances not be sufficient compliance with s 39. The right conferred by s 39 is not a right to be represented; it is a right to have a “reasonable opportunity to present his or her case …”.

64    Whatever may be the outer reaches of s 39 need not, however, be presently explored. The proceeding had reached the stage where all of the evidence, including all of the cross-examination, had concluded. The Applicant was in fact represented and had apparently communicated to his legal advisor that “he was content for the matter to proceed in his absence this afternoon”.

65    There has been no denial of any opportunity for the present Applicant to present his case before the Tribunal.

Conclusions

66    The Further Amended Notice of Appeal as filed on 10 December 2010 should be dismissed. It fails to comply with Order 53 r 3(2)(b) of the Federal Court Rules. No occasion arises for any exercise of the discretion to dispense with compliance with this provision as the decision of the Tribunal exposes no manifest error such as would have any real prospects of success on appeal. Error is not discernible in the manner in which the Tribunal construed or applied either s 8 or s 19 of the Act. There is no substance in the Applicant’s argument that the Respondent has so applied the terms of the legislation as to expose him to “abject poverty”. The Respondent has applied the legislation in accordance with law.

67    The Respondent does not seek costs in the event that the appeal is dismissed.

ORDERS

68    The Orders of the Court are:

1.    The Further Amended Notice of Appeal as filed on 10 December 2010 is dismissed.

2.    There be no order as to costs.

Associate:

Dated:    20 June 2011