Beard v Telstra Corp Ltd [1999] FCA 999 (23 July 1999)

Last Updated: 29 July 1999

FEDERAL COURT OF AUSTRALIA

Beard v Telstra Corp Ltd [1999] FCA 999

ADMINISTRATIVE LAW - appeal from decision of Administrative Appeals Tribunal to dismiss proceedings pursuant to s 42A(5) Administrative Appeals Tribunal Act 1975 - whether applicant failed within a reasonable time to proceed with application - delay in providing or failure to provide certain medical reports not determinative of whether there was a failure to proceed.

Administrative Appeals Tribunal Act 1975 S42A(5)

RAYMOND JOHN BEARD v TELSTRA CORPORATION LIMITED

Q 92 of 1999

SPENDER J

23 JULY 1999

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 92 OF 1999

On appeal from the General Division of the Administrative Appeals Tribunal constituted by a Senior Member

BETWEEN:	RAYMOND JOHN BEARD Applicant
AND:	TELSTRA CORPORATION LIMITED Respondent
JUDGE:	SPENDER J
DATE OF ORDER:	23 JULY 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The decision of 28 January 1999 of the Administrative Appeals Tribunal be set aside.

3. The matter be remitted to the Administrative Appeals Tribunal to be heard according to law.

4. There be no order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 92 OF 1999

On appeal from the General Division of the Administrative Appeals Tribunal constituted by a Senior Member

BETWEEN:	RAYMOND JOHN BEARD Applicant
AND:	TELSTRA CORPORATION LIMITED Respondent

JUDGE:	SPENDER J
DATE:	23 JULY 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 This application is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (the Act) in respect of a decision of the Tribunal made on 28 January 1999 that application Q1997/122 be dismissed pursuant to s 42 A(5) of the Act.

2 Section 42A(5) of the Act provides:

"(5) If an applicant for review of a decision fails within a reasonable time:
(a) to proceed with the application; or
(b) to comply with a direction by the Tribunal in relation to the application;
a presidential member or senior member, on behalf of the Tribunal, may dismiss the application without proceeding to review the decision."

3 The notice of appeal was filed on 25 March 1999. On 30 March 1999 the Tribunal supplied written reasons for its decision, pursuant to the request of the solicitors for the applicant by letter dated 5 March 1999. In those reasons the Tribunal indicated that it was "...not to be taken as conceding that the Tribunal has made a decision under s 43 of the [Act]". Notwithstanding that observation, the decision of 28 January 1999 by the Tribunal was a decision to dismiss the application pursuant to s 42A(5) of the Act, and no point is taken that that decision is not amenable to appeal for error of law pursuant to s 44 of the Act.

4 Shortly before the application was to be heard by the Federal Court on 23 June 1999, solicitors for the applicant advised that the applicant wished to amend the notice of appeal by adding what was said to be a further question of law, namely, "Whether the Tribunal erred in concluding that the Applicant has failed to proceed with the application within a reasonable time", and a further ground of appeal that "The applicant has at no time failed to proceed with the application". Upon the hearing of the application on 23 June 1999, Mr D O'Gorman, counsel for the applicant, indicated that the only point that he wished to argue on behalf of the appellant was whether the Tribunal erred in the construction of the phrase "fails within a reasonable time to proceed with the application". Notwithstanding the lateness of the application to amend, leave was granted for the appeal to be conducted on that basis, as that question which alleges an error of law fell to be determined on what had occurred before the Tribunal and its reasons for reaching the decision it did, and no irreparable prejudice would be caused to the respondent by permitting that matter to be argued. The respondent to the application was given the opportunity to make further submissions in writing subsequent to the hearing of the application.

5 Having regard to the basis on which the Tribunal dismissed the application, it is necessary to examine the history of the matter. On 6 February 1997, Mr Beard lodged an application in relation to a claim for benefits pursuant to the Safety Rehabilitation and Compensation Act 1988. Various pre-hearing conferences were held, and on 7 April 1998 Mr Beard lodged in the Tribunal a hearing certificate notifying that the applicant was ready to proceed to a hearing at Brisbane. On 1 May 1998 a Deputy Registrar of the Tribunal notified the parties to the application that the matter was listed for hearing by the Tribunal on 9 June 1998 at Brisbane. When the matter was called on for hearing on that day before a Tribunal constituted by Senior Member Purcell and Associate Professor Smithurst, counsel for Mr Beard, Mr Hampson, sought an adjournment. Mr Hampson submitted to a clearly reluctant Tribunal that "...we would be foreshadowing obtaining further material from two orthopaedic surgeons". Mr Dickson of counsel, who appeared then for Telstra (as he did before this Court), suggested to the Tribunal:

"...what I was going to ask is that there be a direction that a hearing date not be set until there is a...signed certificate saying that the parties are in fact ready."

6 On that occasion, Senior Member Purcell said that the Tribunal would adjourn the matter:

"...on the basis...in the first place that the parties advise me within seven days of receipt of those reports, and a telephone directions hearing will be listed immediately thereafter, whereupon if the respondent says. 'Well, that's all right list for hearing', then the parties prepare their certificate of readiness and we list it in the normal way as soon as we can after that".

7 At a directions hearing before Senior Member Purcell on 14 September 1998, the solicitor for the applicant advised the Senior Member that the additional medical reports were still not available. At a further directions hearing on 9 November 1998 before Senior Member Purcell, the solicitor for the applicant again advised the Senior Member that the additional medical reports were still not available. On that occasion, Senior Member Purcell drew attention to the fact that hearing certificates had been lodged, and directed that the matter be listed for hearing.

8 On 27 November 1998, a Deputy Registrar notified the parties that the hearing was listed for 16 and 17 February 1999 at Brisbane. On 4 December 1998, a Deputy Registrar notified the parties that the hearing dates had been changed to 5 and 8 March 1999. On 14 December 1998, the solicitors for Telstra made representations about the changed dates for hearing. The basis for this approach was that the proposed dates for hearing, namely 5 and 8 March 1999, clashed with a commitment which Mr Dickson, counsel for Telstra, had in the Supreme Court at that time. In response to the representations on behalf of Telstra, on 18 December 1998, a Deputy Registrar of the Tribunal notified the parties that a directions hearing by telephone had been listed for 4.15 pm on 21 January 1999. On that day, Senior member Beddoe conducted a directions hearing at which the applicant's solicitor failed to appear. This non-appearance had nothing to do with the question of the applicant's preparedness to prosecute his application, but was the result of the mechanical breakdown of the solicitor's car. On that occasion, counsel for Telstra sought that the application be dismissed for non-appearance, which application was refused.

9 On 25 January 1999, a Deputy Registrar of the Tribunal gave written notice to the parties of a directions hearing by telephone at 2 pm on 28 January 1999. On that occasion, after notice had been given by correspondence (to which reference will be later made), counsel for Telstra submitted that the application for review should be dismissed for want of prosecution. Part of the material in support of that application exhibited the correspondence between the parties from the period of the adjournment granted on 9 June 1998 until the time of the directions hearing.

10 On 18 June 1998 the solicitors for Telstra wrote to the applicant's solicitor noting that Mr Beard had sought an adjournment on 9 June because he proposed to obtain further reports from Drs Cooke and Pentis. The letter sought copies of those further reports without delay. On 29 June 1998, the solicitors for Telstra referred to the letter of 18 July 1998 and noted that they had not yet received a reply. On 16 July 1998, the solicitors for Telstra again noted the lack of the furnishing of reports from Drs Cooke and Pentis and asked:

"Is your client serious in pursuing this claim? If so, please provide those further reports to us by return mail."

11 Again, on 23 July 1998, the solicitors for Telstra noted the absence of any further medical reports and the absence of any reply to their correspondence, and advised:

"Unless the further reports are provided to us within seven (7) days we propose to make application to the Administrative Appeals Tribunal for the matter to be listed for a Directions Hearing."

[emphasis added]

12 The only reply from the solicitors for the applicant was by letter of 30 July 1998. The letter said, inter alia:

"We have not as yet received the additional medical reports and hope we will be in a position to be able to forward them to you within a period of two or three weeks from todays (sic) date.
We advise that the essential reason for the delay is related to the writers (sic) workload, which has been very heavy in the past month or thereabouts."

13 On 26 August 1998, the solicitors for Telstra again wrote, noting the failure to provide the further medical reports and stating:

"Unless the further reports are provided to us within seven days we propose to make application to the Administrative Appeals Tribunal for the matter to be listed for a Directions Hearing."

14 A further letter of 29 September 1998 from the solicitors for Telstra noted the absence of receipt of the reports from Drs Cooke and Pentis, and on 7 October 1998, a letter again complaining of the absence of the reports from Drs Cooke and Pentis and stating:

"We do not understand why the Applicant is continuing delaying this matter. Please provide the reports to us by return mail."

15 On 22 October 1998, a further letter from the solicitors for Telstra again referred to the absence of the further reports from the medical practitioners and the absence of any response to the correspondence. The letter further said:

"In a telephone conference on 14 September, 1998 you indicated that you expected to have the further reports within two or three weeks of that time.
Is your client serious in pursuing this claim?"

16 On 30 November 1998, the solicitors for Telstra wrote:

"We refer to the above matter and confirm that we have returned the duly completed Hearing Certificate to the Administrative Appeals Tribunal.
We record that no further medical reports have been provided by you since the matter was adjourned on 9 June, 1998."

17 Then after the telephone directions hearing which occurred on the afternoon of 21 January 1999, the solicitors for Telstra wrote on 22 January 1999, which letter said, inter alia:

"We also note that on behalf of the Applicant, there was no attendance by you.
A further Directions Hearing is to be conducted by Senior Member Beddoe at 2.00 pm on 28 January, 1999.
Notice is hereby given of the Respondent's intention at that forthcoming Directions Hearing to apply for the dismissal of the Application on the grounds of a failure to prosecute."

18 The hand-written note of the telephone directions of 21 January 1999 indicates that the Tribunal was advised by the secretary of the applicant's solicitor that the applicant's solicitor's car had broken down and that he was not able to attend. The note also indicates that Telstra, through its counsel, informed the Tribunal that on 9 June 1998 there had been an application by counsel on behalf of Mr Beard for an adjournment on the basis that Mr Beard was not in a position to proceed and required orthopaedic reports from Drs Cooke and Pentis. Counsel for Telstra indicated that that application for an adjournment was opposed, and noted that costs had been incurred by Telstra. It was submitted to the Tribunal on 21 January 1999 that no report had been furnished by the solicitors for the applicant up until that time, nor had any meaningful communication from the applicant been received. The Tribunal inquired of counsel for Telstra whether they were making an application about a failure to prosecute the matter. The note of the directions hearing indicates that Counsel for Telstra replied:

"Can't do at moment, as can't say that [applicant] hasn't prosecuted case - has to wait to trial date to do that."

19 However, counsel also indicated that Telstra could not make that application now, as the applicant had not been aware of it and it would be unfair in those circumstances. It is clear from the notes of that conference that the dates for hearing which had been set down by the Tribunal were inconvenient to counsel for the respondent.

20 When the matter was the subject of directions on 28 January 1999, the notes of the hearing show that counsel for Telstra, Mr Dickson, indicated that the trial (which had been set down for hearing in March) "...won't proceed [because the applicant's] case is no further advanced than in June". It was submitted by Mr Dickson "...either close file or have [the application] proceed". It was submitted that at the directions hearing set down the previous week there was no appearance by the applicant, and it was submitted that "...[everything] indicates that [the applicant] does not want to proceed".

21 However, the solicitor for Mr Beard said that he agreed that the matter should proceed speedily, and he noted that the date of 16 February 1999 was adjourned by the Administrative Appeals Tribunal. Of crucial importance to this application is the statement by Mr Beard's solicitor that the applicant was "ready to go on 5 March". It was submitted on behalf of Mr Beard that comment was needed from Drs Cooke and Pentis, and that Dr Pentis was due back on 15 February. Importantly, it was submitted on behalf of Mr Beard that, given that the matter was "...due for trial on 5/3 [it] would be inappropriate to grant dismissal".

22 The note of the directions hearing on 28 January 1999 indicates that the Senior Member indicated that he was:

"...afraid that [the applicant] has failed to proceed [because the matter was] listed for [hearing] and set down on 9/6/98 after [a hearing certificate was lodged] certifying [that the matter] was ready for [hearing]. On 9/6/98 [Tribunal] asked to [adjourn] & would take a couple of [weeks] to get [reports] - result is that [reports] of Dr Cook [sic] & Dr Pentis not lodged & exchanged - no prospect of that occurring in period 28 days prior to [hearing] listed for 5/3; 8/3".

23 The note of the hearing of 28 January then indicates that the Tribunal was "...forced to conclusion that [applicant] has failed to proceed on basis of what said on 9/6/98. S 42A(5) applies [and applicant] has failed to proceed [within] a reasonable time." The diary note then concludes "Dismiss s 42A(5)".

24 The written reasons of the Tribunal dated 30 March 1999 contain the following:

"5. The Tribunal considered the history of the matter in the Tribunal, the correspondence between the parties after the adjourned hearing, the failure of the applicant to lodge the two additional medical reports which were the basis for Mr Hampson's application for adjournment, the failure of the applicant's solicitor to give information to the Tribunal about any additional medical reports and the possibility that the applicant would again seek adjournment of the hearing.
Taking the material and submissions into account I concluded that the applicant had failed to proceed with the application within a reasonable time. Being so satisfied I dismissed the application on behalf of the Tribunal without proceeding to a review of the decision under review."

25 It is against the history of the matter, as indicated in the paragraphs above, that the present application has to be determined.

26 In my opinion, the Tribunal dismissed the application by Mr Beard because it was of the view that there was a failure to provide the medical reports (the foreshadowing of the obtaining of which was the basis for the applicant's application for an adjournment in June 1998) within a reasonable time. It was clearly open to the Tribunal to hold that view, particularly in the light of the correspondence from the solicitors for Telstra subsequent to the successful adjournment in June 1998. That that was in truth the basis for the Tribunal's decision appears from paragraph 5 of its reasons set out above in the circumstances of the present case.

27 However, the power to dismiss under s 42A(5) of the Act requires that the applicant has failed within a reasonable time to proceed with the application. The failure to provide the medical reports spoken of on 6 June 1998 by 28 January 1999 does not demonstrate a failure by the applicant within a reasonable time to proceed with the application. On the contrary, the matter had been set down for hearing, originally on 16 and 17 February 1999, and there is nothing to suggest that the applicant was not going to proceed on those days. Whether there would then be any further medical evidence sought to be presented on behalf of the applicant does not alter that position.

28 When, after 4 December 1998, the Tribunal notified the parties that the hearing dates had been changed to 5 and 8 March 1999, there was nothing to indicate that the applicant would not proceed on those days. It might be that at the hearing a further adjournment might be sought, but the material before the Tribunal does not permit the view that, if that application were unsuccessful, the applicant would not proceed on the material then available to him.

29 The telephone directions hearing of 21 January 1999 was arranged by the solicitors for Telstra, not on the basis that there had been any failure to prosecute the application on behalf of the respondent, but because the dates arranged by the Tribunal for the hearing, namely 5 and 8 March, were inconvenient to counsel for Telstra. It was, I infer, because of the failure by the solicitor for the applicant to appear at the directions hearing on 21 January 1999 (for a reason totally unconnected with any question of prosecution of the application), that any suggestion of dismissal for want of prosecution was made. On 28 January 1999 it was made plain by the solicitor for Mr Beard that the applicant intended to proceed on the hearing dates. The notes of the directions hearing indicated that Mr Beard's solicitor stated "...ready to go on 5/3". Whether that was with or without the benefit of further medical evidence was left unclear, but there is nothing to suggest that it was the position of the applicant before the Tribunal that, absent any further medical report, the application would not be pursued. What was said by Mr Beard's solicitor on 28 January 1999 is inconsistent with the view that the applicant had failed to prosecute his application.

30 In my opinion, the power to dismiss pursuant to s 42A(5) of the Act requires that, at the time of the decision by the Tribunal to dismiss the application pursuant to that subsection, a reasonable time has elapsed and there has been a failure by the applicant to prosecute his application. That question is not answered by considering whether the applicant has complied with his foreshadowed intention to secure further medical reports, being the basis on which the adjournment of the hearing before the Tribunal was granted on 9 June 1998.

31 In my opinion, the evidence did not permit the conclusion that, as at 28 June 1999, the applicant had failed within a reasonable time to proceed with his application: on the contrary, the matter had been set down for hearing and the applicant's legal representative had indicated that he was ready to proceed when the matter was listed for hearing. The fact that there might have been an application made on that day for a further adjournment of the matter (which application might be thought to have had little prospects of success) does not indicate a failure to proceed with the application within a reasonable time.

32 The test under s 42A(5) of the Act is not whether there had been a failure within a reasonable time to comply with the matters which had been the subject of a successful application for an adjournment before the Tribunal at an earlier time; the test is whether, at the time of the decision made pursuant to that section, it had been demonstrated that the applicant had failed within a reasonable time to proceed with the application. In circumstances where the matter had been listed for hearing and the applicant had indicated through his solicitor that he was ready to proceed on the hearing dates (be that with or without the foreshadowed medical reports), the failure to provide the foreshadowed medical reports does not provide a basis on which the Tribunal could conclude that the applicant had failed within a reasonable time to proceed with the application. In my view, there was a misunderstanding by the Tribunal of the statutory test.

33 I am of the opinion that the appeal should be allowed, but on the basis of the ground belatedly raised on behalf of the applicant. In those circumstances, I will not make any orders as to costs.

34 I order that:

1. The appeal be allowed;

2. The decision of the Tribunal of 28 January 1999 dismissing the application be set aside;

3. The matter be remitted to the Tribunal to be heard according to law.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated: 23 July 1999

Counsel for the Applicant:	Mr D O'Gorman
Solicitor for the Applicant:	Stephen K Richardson
Counsel for the Respondent:	Mr R Dickson
Solicitor for the Respondent:	Standish Partners
Date of Hearing:	23 June 1999
Date of Judgment:	23 July 1999