Case: Cole v Cunningham (1983) 49 ALR 123
Outcome: cited
The submissions of the applicant may be summarised as follows: &#8226; There is a common law duty to observe procedural fairness where the exercise of power is liable to affect a person's rights, status, interests or legitimate expectations ( Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 584). The applicant in this case was not afforded procedural fairness in relation to the question of whether the Tribunal had jurisdiction to hear the complaint. This is a question of law and may be appealed to this Court pursuant to s 46 of the Act . &#8226; The applicant must be given an opportunity to address issues that are troubling the Tribunal ( Cole v Cunningham (1983) 49 ALR 123 at 128). At the time of its hearing the Tribunal failed to inform the applicant that the question of jurisdiction was a live issue. In fact, the Tribunal had conceded in correspondence that it did have jurisdiction as follows: o In a letter from the Tribunal to the applicant on 16 November 2006, the Tribunal raised the question of jurisdiction with the applicant. It was submitted by the applicant that this reference to jurisdiction was clearly referring to s 14(6B) of the Act . Paragraph 3 of the letter stated: The Act imposes certain time limits on dealing with disability complaints so it is very important that you provide these workers compensation details so that the Tribunal can determine whether or not your complaint is within its jurisdiction. o In his letter to the Tribunal of 24 November 2006 the applicant stated he had tried to claim the benefit from the time his employment was terminated, but was informed by the former fund to wait until after the court case. o In its letter to the applicant of 15 February 2007 the Tribunal stated at para 2: I wish to confirm that the Tribunal has established its jurisdiction to deal with your complaint and has now sought additional information from the Fund to assist with our inquiry into your complaint. o No issues of jurisdiction of the Tribunal, whether as a result of expiration of time or otherwise, were raised by the Tribunal at the hearing, and the applicant was not invited to make submissions relating to jurisdiction at the Tribunal hearing. o Following the Tribunal's letter dated 15 February 2007, jurisdiction was not raised by the Tribunal until publication of the Tribunal's determination and reasons on 7 December 2007. &#8226; The applicant submitted that for the Tribunal to have acted fairly in the circumstances in this case, the Tribunal would have been required, at the least, to have notified the applicant that jurisdiction was a live issue and afforded the applicant the opportunity to make submissions on the jurisdiction question. &#8226; Finally, the applicant acknowledged that whether relief was granted to the applicant was at the discretion of the Court, and if the return of a matter to the Tribunal would be futile or where the error relied upon by the Tribunal could not have made a difference to the outcome of the case, the court should refuse to grant relief ( Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206). In this case however the applicant submitted that the Court should exercise its discretion in favour of the applicant because: o the Tribunal did not make findings of fact beyond those set out at [8] of the determination and reasons (which were only background facts); o there is a significant amount of medical evidence that has not been considered by the Trustee or the Tribunal. This could add weight to the applicant's case before the Tribunal, making it "possible" the end result might not be the same at a further hearing ( Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540).