Michael Patrick O'Driscoll v Telstra Corporation Limited [2004] FCA 48

FEDERAL COURT OF AUSTRALIA

Michael Patrick O'Driscoll v Telstra Corporation Limited [2004] FCA 48

ADMINISTRATIVE LAW - Appeal from the Administrative Appeals Tribunal. Question of competency - whether appealable question of law or question of fact. Administrative Appeals Tribunal Act 1975 (Cth) s 44(1) Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1, followed MICHAEL PATRICK O'DRISCOLL V TELSTRA CORPORATION LIMITED N 791 of 2003 HILL J 3 FEBRUARY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 791 OF 2003

BETWEEN: MICHAEL PATRICK O'DRISCOLL

APPLICANT

AND: TELSTRA CORPORATION LIMITED

RESPONDENT

JUDGE: HILL J

DATE OF ORDER: 3 FEBRUARY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. the appeal be dismissed 2. 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

NEW SOUTH WALES DISTRICT REGISTRY N 791 OF 2003

BETWEEN: MICHAEL PATRICK O'DRISCOLL

APPLICANT

AND: TELSTRA CORPORATION LIMITED

RESPONDENT

JUDGE: HILL J

DATE: 3 FEBRUARY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 Mr O'Driscoll is the applicant in the present proceedings in which he seeks to appeal against a decision of the Administrative Appeals Tribunal constituted by a senior member and given on 6 June 2003. In its decision the Tribunal affirmed decisions of the respondent, Telstra Corporation Limited ("Telstra"), refusing Mr O'Driscoll's claim for payment of the cost of therapeutic appliances, refusing his claim for payment of compensation for permanent impairment, and setting aside two previous decisions, one of 18 November 2002 and the other of 2 July 2001, being decisions relating to compensation for neck, back and arm injuries. 2 In his notice of appeal Mr O'Driscoll stated the questions of law raised on the appeal to be as follows: "1. In denying compensation for the neck and back, the tribunal was incorrect on the facts given for their decision eg, neck, para 43 'was reported as playing competition squash until his bus injury in 1981.' I only played one season of competition squash in my life and that was 'D Grade' in the Autumn pennant in 1984. I have not played since." 3 The document continues with other examples which I do not need to set out here. As I indicated in the course of discussion with Mr O'Driscoll this court has jurisdiction only to hear an appeal from the Administrative Appeals Tribunal which is on, that is to say, limited to, a question of law: s 44(1) of the Administrative Appeals Tribunal Act 1975. The court has no jurisdiction to decide matters of fact which may arise in the course of a review conducted by the Tribunal. 4 Mr O'Driscoll is not represented in the motion which is brought by the respondent, Telstra, that his appeal be dismissed on the basis that the Court lacks jurisdiction to determine it. It is the submission of Telstra that Mr O'Driscoll's appeal involves no question of law. The distinction between a question of law and a question of fact is often very difficult. There is a useful analysis to be found in the decision of the Full Court of this Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1. 5 As is clear from the decision in that case, a question of law would arise if all facts being accepted, only one conclusion is available to be reached and the Tribunal reaches another and different conclusion. A question of law arises in such a case because if no other conclusion is available, it must follow that the Tribunal has made a mistake of law, even if that mistake is not clearly enunciated in the Tribunal's reasons. It is not a question of law that the Tribunal, faced with competing evidence, accepts the evidence of one witness as against another or other witnesses. 6 The three examples which Mr O'Driscoll gives in his notice of appeal, one of which I have set out, do not of themselves involve any issue of law. The first example which I have set out refers to paragraph 43 of the Tribunal's reasons. In that paragraph the Tribunal says: "We note however, that the symptoms had not persisted since 1975, as the applicant in other reports was reported as playing competition squash until his bus injury in 1981. Evidence adduced to the Tribunal in 1986 was that in 1978 the applicant purchased a 65 foot sloop which he sailed from time to time until 1986. These activities are not consistent with ongoing neck pain." 7 Mr O'Driscoll's complaint as to the reference to squash is that he only played one season of squash in his life and that was in 1984. That may very well be true. However, the Tribunal in the paragraph complained of says no more than that there were reports before it that the applicant was playing competition squash until 1981. 8 Counsel for Telstra referred me to various pages in reports before the Tribunal that state, as Mr O'Driscoll would say erroneously, a continuous involvement in squash until some date. It does not seem in fact that the Tribunal was making any finding on the question when Mr O'Driscoll did or did not play competition squash. Even if the Tribunal however did make a wrong factual finding, but did so on material before it, no issue of law would be involved. The same can be said of the other two matters which are dealt with in the notice of appeal. 9 I asked Mr O'Driscoll to identify for me what it was that he wished to have argued in the appeal. I did so because I was conscious of his difficulty, particularly because he was unrepresented, in clarifying precisely what the question of law was that arose in the appeal. Mr O'Driscoll referred to a number of matters. 10 His first complaint was that a tribunal differently constituted had, on a previous time and, as I understand it, on evidence that was not necessarily the same as that before the Tribunal now, found that he was entitled to compensation in respect of the injuries which he claimed to have suffered to his neck, back and elbow. The problem, I explained to Mr O'Driscoll, is that one tribunal is not bound to come to the same conclusion as another, particularly when the evidence before each tribunal may be different. Each tribunal is obliged to come to its own decision on the evidence which is before it. 11 The second matter which Mr O'Driscoll wished to argue on the appeal was that there was no definite evidence before the Tribunal that he suffered from Scheuermann's disease. In its reasons the Tribunal referred to a report of Dr Matheson, a consultant neurosurgeon, who had examined Mr O'Driscoll on behalf of Telstra. In that report Dr Matheson said that Mr O'Driscoll, "carries a bit of Scheuermann's disease at T-9 ...". The report also refers (it may be the same thing or it may be different), to some thoracic Scheuermann's disease. Mr O'Driscoll tells me that there was a radiography report before the Tribunal which makes it clear, he says, that there was no definite evidence of Scheuermann's disease. However matters of fact are matters for the Tribunal. There was clearly some evidence before the Tribunal, which it was entitled to accept if it wished to, that Mr O'Driscoll did have some indication of Scheuermann's disease. If the Tribunal decided not to accept other evidence to the contrary that was a matter for the Tribunal and involves no issue of law. 12 The next matter raised by Mr O'Driscoll was that in the course of the conduct of the hearing the Tribunal had, in questions it raised, discounted the fact that he had systemic lupus. In the result, some witnesses gave evidence of Mr O'Driscoll's ability to perform certain functions without reference to his systemic lupus. Again, that question does not raise a question of law. That is not suggesting that the Tribunal acted in any way in bad faith in conducting the review, and it was no doubt open to Mr O'Driscoll, had he wished to, to ask other questions of witnesses. In saying this I am conscious of the fact that Mr O'Driscoll was not represented in the Tribunal either. No question of law, however arises in respect of this matter. 13 The next matter raised by Mr O'Driscoll was that the Tribunal had not accepted the evidence of Dr Dixon, regarding it as less reliable than the evidence of other witnesses, apparently because of a mistake in a date in the evidence that Dr Dixon gave. Whether that is an accurate description of what the Tribunal did does not matter for present purposes. It is clear that the Tribunal is entitled to accept or reject the evidence of one medical practitioner and prefer the evidence of another, and its doing so involves no question of law. 14 Finally, Mr O'Driscoll referred me to the fact that Dr Griffith, in his evidence, had referred to Mr O'Driscoll having specific neurogenic pain, but the Tribunal had treated this as unbelievable. Again, I'm not sure that it's quite accurate to say that the Tribunal treated the evidence as unbelievable but even if it were, again it is for the Tribunal ultimately to decide matters of fact, not for this court. So long as it was open to the Tribunal to reach the finding it did then no question of law arises. 15 Mr O'Driscoll has made it clear to me that he could not pursue an appeal on the basis that if the evidence was accepted in its entirety before the Tribunal only one conclusion favourable to him was available. As I've already indicated that would involve an issue of law. However, none of the matters which Mr O'Driscoll has raised with me do involve questions of law and it follows that no question of law being raised in the appeal the Court lacks jurisdiction to hear the appeal. Accordingly I must uphold the objection to competency and dismiss Mr O'Driscoll's application to the Court. 16 Counsel for the respondent did not ask for costs and therefore I make no order as to costs of the application. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill .

Associate: Dated: 16 March 2004

Counsel for the Applicant: the applicant appeared in person

Solicitor for the Applicant:

Counsel for the Respondent: N Polin

Solicitor for the Respondent: Sparke Helmore

Date of Hearing: 3 February 2004

Date of Judgment: 3 February 2004