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Van Oostveen v Comcare B6/1999 [ 2000] HCATrans 372  (21 June 2000)

Brisbane No B36 of 1998

B e t w e e n -

WILLIAM VAN OOSTVEEN

Applicant

and

COMCARE

Respondent

Office of the Registry

Brisbane No B6 of 1999

B e t w e e n -

WILLIAM VAN OOSTVEEN

Applicant

and

COMMONWEALTH OF AUSTRALIA

Respondent

Applications for special leave to appeal

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 21 JUNE 2000, AT 2.16 PM

Copyright in the High Court of Australia

MR W. VAN OOSTVEEN appeared in person.

MR P.G. BICKFORD: If it please the Court, I appear for the respondent. (instructed by the Australian Government Solicitor)

GAUDRON J: Yes, Mr Oostveen.

MR VAN OOSTVEEN: I need a bit of guidance here, your Honour. I do not know all my rights but if I could try and put it in a nutshell. Matter No B36 of 1998, what it comes down to is the credibility issue in addition to, yes, it is a number of events, the events where I try to gather up the information and I had a really hard time in view of my pursuits FOI et cetera. I go to ministers in Queensland and the likes, however, I feel there is, well, more than a significant body of substantial and credible information that will go to righting my credibility and if it is at all possible, if I can - I have only got one book with me today unfortunately, but it sets something to rest because of this dispute about the two doctors in the eyes of - - -

GAUDRON J: Yes. Well, Mr Oostveen, we can only grant you leave to appeal on the basis of error of law.

MR VAN OOSTVEEN: On errors of law, all right. The credibility issue for number one. The events for number two. The paragraph 31 of Justice Ryan and also the Full Court bench make a reference to a 1996 assault. There is no such thing but being in such a spirit did not help any. When it comes down to the crux of the matter, well, the Tribunal they did error. In relation to the other matter when Van Oostveen - by the way, just on finishing off that particular matter, that Comcare matter, what I have got in assets, I have got about three, possibly four, claims on the administrative side being lodged in 3 December 1993. So, yes, the structure of their complaints, of

how they addressed the issues on a serious question because it went all the way through

GAUDRON J: I do not follow that, I am sorry, Mr Van Oostveen.

MR VAN OOSTVEEN: The structure of the statement that was put before the Tribunal and also ended up - there was in the Full Court, Kiefel, Finn and Finkelstein - - -

GAUDRON J: Yes.

MR VAN OOSTVEEN: Right. They made reference to the appellant lodged three claims for compensation.

GAUDRON J: Yes.

MR VAN OOSTVEEN: There was more than three claims and they got their dates out. The next thing they went on to say was I had not suffered compensable injury. No, I have. My problem is getting the radiologist versus the doctors. I have got a few doctors playing up. They have not been tendering the scans, the radiologist reports. That is all I can rely upon. The doctors can run at the mouth about being on heroin and the rest of it as long as the cows run home I suppose.

They no doubt put me down to mental as well a little bit. I am not impressed, so I called in the Commonwealth on that one. I think it is that section 33 - I have got it - there was provision that they did not settle the question about the section 334A in respect to the term "mental disability" in section 170DF, one of - and that is at page 3 of 67 of matter No M46 of 1994, State of Victoria v The Commonwealth, South Australia v The Commonwealth and Western Australia v The Commonwealth.

In addition, it is a question about subject matters. If I can just put a pen on this. There is terms and conditions of employment. A terms covered 24 hours viewed on an equal footing as does others in the Department, even though I had a higher seniority, I was not going to trump it. However, 24 hours on call and yes, all during the course of employment. Well, the Constitution section 75 - and I can make out that section 75 to refer to the ..... unfortunately. I think it makes reference about to where matters is related between a Commonwealth. The Commonwealth is a party "Arising under any treaty" as well.

Also where there is a resident of a State, because my situation was I lodged the claims in Queensland but it happened in New South Wales and when I was in New South Wales I made applications for employment in Queensland but they are not going to think ..... because they think I have got a criminal record all over the place and I do not know how to counter that. Maybe they sent.....or whatever they can call the courts - - -

GAUDRON J: Yes, but you will have to - are you still on matter B36 of 1998?

MR VAN OOSTVEEN: Matter M40.

GAUDRON J: Yes. Well, you will have to address yourself to errors of law in the decision of the Full Court of the Federal Court.

MR VAN OOSTVEEN: Yes. Well, I just did on that, the one Kiefel, Finn and Finkelstein about the number of claims and also at page 3 there is this section 31. They are making reference to doctor - like psychiatrists but they are not skin specialists and this doctor - well, Dr Freed, you know, a psychiatrist maybe, well, he come from Africa. Anyway, he is talking after the event and it is a little bit of an abstract thing because he does not get into regressive therapy. In addition, he sees me for the first time I believe around about 25 March 1992, because he is making reference to last night in his notes, which is the 26th when he is making his notes but he has got it doctored up as to be 24th of the 3rd.

The fact of the matter is I seen Dr Angelos on the 24th in the arvo and I went back to see him the following day and I had to be in Brisbane and I got a few blood tests and it comes down to lab reports, conflicting doctors' records. Am I allowed to hand this up at all? It is crucial because it makes a difference between the two doctors.

GAUDRON J: No, but you are dealing with the facts - - -

MR VAN OOSTVEEN: Okay.

GAUDRON J: - - - and what is crucial is whether there was an error of law.

MR VAN OOSTVEEN: Yes. Well, my feelings is that they adduced the facts, the factum probandum and the facta probantia or however they say that. Because there is a sequence of events they had to look even more diligently into the facts, but the Tribunal being as it is, and maybe because there was an element of discrimination, it did not fall into the realm of the administrators. However, they more or less echoed what Justice Ryan was saying at paragraph 31 at page 3 and, as I said, psychiatrists are not skin specialists. That stands out.

In addition, there was medical evidence they have induced the applicant had been incapacitated for work since that time, there had been information. That is right because the page - back the page - sorry about this - on the same Full Court bench there is a hierarchy of issues as to the statement of those questions that should have been addressed. Unfortunately, I was represented by counsel who was told, but did not follow instructions, two separate counsel. One before the Tribunal and one before Ryan and subsequently before the same one before Ryan ended up before Kiefel, Finn and Finkelstein when I ended up going to the library not knowing what has been said and get an extract of a legal report of some sort.

I go on to page No 4, page No 4. There is no such person as a Dr Gorham. That said it relied upon the inaccurate history given by the applicant. No, I am saying it is another person getting on a phone. I am not in the habit of telling lies. As to page 5, the inference is today, in the middle in the running writing:

After referring to some signs of traits relevant to a possible condition having been exhibited, the doctor went on:

"...On what -

he seen "today". That is the neurologist, Dr Davies. I had the same situation before Dr Frame on the same day. The fact of the matter is when people talk to me, I talk to them politely back if they talk politely. I was having problems in the workplace. They were not very human but - these past ones, because I had to make a distinction all the time between clients and that, even though you are getting a rough serve it is hard to explain. Indicated....."provided to indicate that the appellant had an incapacity", page 6, running writing again. There was certificates in 1992 because of lichen planus.

The part of the problem - they try to isolate lichen planus. It is unknown ecology. I can only translate from my experiences in those claims that I have put in. Each one of those claims I more or less made reference to lichen planus and it was not claimed in isolation as such, just for lichen planus. It may be the way they are reading the claim forms. Ryan did say something in Ryan's judgment. I have got to go backwards in this one. I have got to go back to Ryan's judgment now, your Honour. That was on 9 February 1998 and there again he is echoing what the Tribunal echoed on page 1, the first page. That is QG 179 of 1996.

There was no claims lodged on 3 November. There was a number of claims lodged on May. Once again the hierarchy questions comes into question. And there again page 2 it makes reference to paragraph 31 about gleaning and glossing and a pedantic spirit, but I think maybe the Full Bench may have looked at his judgment instead of looking further. It might echoing the same thing a little bit and as far as the Tribunal giving and writing the reasons for its decisions, those reasons shall include its findings on material questions of fact and a reference to the evidence.

They got me a little bit all over the place. You know, the Tribunal, they are inferring that I am all over the place. You ought to be me listening to the questions that they are firing at me. For example, they make reference to November. Which one? 1990 or 1991? I have got common denominators but they want an answer, so I have got to answer. It is a bit difficult. Australian National Maritime Museum lower floor - I am sorry, the NSC, Naval Supply at Zetland - Zetland, for example. That is at 52. They had a lower office. Also in the depot Alexandria they had a lower office. Both Novembers. It is a bit hard to make a distinction between the two, but you can only be at one place or the other. Page 8 of Ryan. Now, he makes reference to evidence that he:

had been subject to many episodes of physical trauma -

yes, I am still trying to get better. I have got a few headaches and the rest of it, but, once again, the radiologist kicks in. He got:

during the period 1978 to 1992 -

episodes of "head injuries". The thing that comes out of all this is my long service. I started at Garden Island in 1980. I get continuation of services from those different departments that I have worked for and it all gets added up, including the State Rail Authority, and I still think the Opera House because it comes under the Department of Administrative Services and the Performing Arts, which should receive credit. But, yes, it all translated to course of employment, all up to Australia Post, prior to joining DAS, Australian Construction Services, Department of Housing and Construction Service, Department of Health, Housing and Community Services, pretty big..... We had better get into the other matter before I run out of time.

GAUDRON J: Yes.

MR VAN OOSTVEEN: All right. In a nutshell, the distinction between this judgment and Comcare is the claims, for example, lichen planus and trauma, whereas in the other matter, the B6, there is no claims as such. In addition, I was not thrown an election in relation to the Comcare matter. The fact of the matter is I was getting badly done by in the Department. It gave me a few warnings. Figuratively speaking I am allowed to. I am not allowed to thump them. They keep it up, I take them to court.

I have got a without prejudice that I even given to them, which I have not admittedly got a date, I will try and find. 21 December 1993 and it got acknowledged and I got written back to, 4 January 1994 by Asset Services, acknowledgment, so complained and B6, when you take it right back to square one, it was the first one off the rank before Justice Spender. That was like 22 November 1996, but I got the respondent doing a flip and talking about 179 and trying to bring it in. So I am staying put. Why should I have to make an election?

I was trying to take on the Department all the way through for everything, but Comcare came along and says, "Haven't we got a deal for you?" sort of thing and that is where the traumas and if I can relate to getting run into by a motor vehicle as distinct from getting done by a train. Unfortunately, the train is during the course of employment and my RDO sheets shows that it was, in fact, a Christmas shut-down period but I have not been able to get the evidence. I got it finally. Having a hard time to get the evidence.

In addition, I do not think in the B6 1999 that the - they partly did due and proper consideration to my claim, yes, because - well, it ended up before Justice Drummond on 24 April 1998, but it should have been handled co-jointly, if I can use the word, by Justice Ryan. However, it ended up before Justice Drummond and I got told to put in an affidavit, even I tried to get subpoenas to adduce evidence and so forth. Stood over, suspended. I still had to get the evidence. Pop in an affidavit like he tells me to, 15.4.98.

The respondent makes reference to an attachment but the attachment has got a.....to it. It translates to an affidavit as well. I am asking for their Honours' wisdoms to subpoena and whatever. It comes down to the Constitution once again. I have got this section 75 were matters - it is not related, intermingled actually. Then I have got section 84 of the Constitution on that one. You want errors of law. That is right, errors of law. Well, I think Justice Drummond, he got more or less led by the respondent and capitalising on what Ryan said in 179, he got misled.

I kept saying like medical belongs to Comcare, sort of 179, and he kept going on. Then he asking about the different relevance of the election, notional election. I say you do not have to make an election because I took an action. I warned them. I gave them without prejudice even. I took them to court. Why should I have to change my mind for? I have not got the B6 taking care of lichen planus. I have not got the B6 supposedly taking care of the car accident. That is the distinction. It intermingles. All the rough treatment, getting done on my remunerations, my annual leaves, having a hard time, getting my pay dockets printed out. I got a few.

As with all those various job applications that I have been making in 1990 but not what the counsel for the respondent is making out. They are making reference to 1990 but they are talking about 1991 and how I got numerous job application, in addition, the intent on part of those in the Department and as far as clarifying and confirming that, yes, stressful situations and there were follow-up actions. He is highly stressed by this situation and I got duplication in the part of Dr Freed and Dr Sampson.

How can I get - for example, how can I get referred to Dr Frame, according to 4 October's report? I seen Dr Frame on 27 September. They are duplicating reports. It is not cricket. Dr Dowda, he has got a bit of a gut as well but he is running the tape. I wish I could get the tape because they missed out my Australia Post and they did not look at the CT scans and EEGs. I was all right when I went in to join the Department of Administrative Services, which I believe was around about 9 November 1989. I do not know for sure.

GAUDRON J: Your time is up now, so if you could complete your submissions.

MR VAN OOSTVEEN: All right. All right. The High Court will not - I am sorry - I think there is room to - given the basis that there is a lot of long service in industrial relations component, that is at the stem of the B6.

GAUDRON J: Yes. Thank you, Mr Van Oostveen.

MR VAN OOSTVEEN: Your Honour, can I get an order to get some Legal Aid or something?

GAUDRON J: Well, that is not within our power, I am sorry.

MR VAN OOSTVEEN: Is it not?

GAUDRON J: No.

MR VAN OOSTVEEN: I cannot even get a doctor.

GAUDRON J: No, we do not need to hear from you, Mr Bickford.

In the first of these matters the applicant seeks special leave to appeal from a decision of the Full Court of the Federal Court of Australia, the effect of which was to confirm a decision of the Administrative Appeals Tribunal. That Tribunal had denied compensation for what were claimed to be compensable injuries. The Tribunal's decision depended on factual findings made in the light of the case presented to it. In these circumstances the proposed appeal does not enjoy sufficient prospects of success to justify the grant of special leave.

In the second matter the applicant seeks special leave to appeal from a decision of the Full Court of the Federal Court of Australia dismissing a decision from Drummond J, who struck out the applicant's action for damages by reason of non-compliance with section 45 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). There was no error in the approach taken by the Full Court. Accordingly, the application for special leave must fail.

The orders are in matter number B6 of 1999 extend time for applying for special leave. In each of matters B36 of 1998 and B6 of 1999 the application is dismissed. The matter having been the subject of written submissions, it is dismissed with costs.

The Court will now adjourn briefly to reconstitute.

AT 2.40 PM THE MATTER WAS CONCLUDED