Booker and Comcare

[2009] AATA 281

Administrative Appeals Tribunal

ORDER AND REASONS FOR ORDER [2009] AATA 281

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No       2007/6273  

GENERAL ADMINSTRATIVE DIVISION		)
Re		ROBERT BOOKER

Applicant

And   COMCARE

Respondent

ORDER

Tribunal   Deputy President P E Hack SC

Date  24 April 2009

Place  Brisbane

The Tribunal dismisses the application pursuant to s 42A(5)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

..............Signed................

Deputy President

Catchwords

PRACTICE & PROCEDURE – failure to attend medical appointment – rights to continue proceedings suspended - whether there is a failure, within a reasonable time to proceed with the application – application dismissed.

Beard v Telstra (1999) 57 ALD 376

Administrative Appeals Tribunal Act 1975 (Cth) ss 42A(5), 2A

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16, 20, 57(2)

REASONS FOR ORDER

24 April 2009 Deputy President P E Hack SC

1.This is an application by Comcare, the respondent to the substantive application made by Mr Robert Booker, to dismiss Mr Booker’s application pursuant to s 42A(5)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

2.It is necessary to set out some of the procedural history in order to understand the issues raised by the application.

3.Mr Booker’s application was lodged on 24 December 2007 and seeks a review of a decision made by Comcare on 20 July 2007 and affirmed on reconsideration on 8 October 2007. By that decision Comcare “denied present liability under sections 16 and 20 of the [Safety, Rehabilitation and Compensation Act 1988 (Cth)] on the basis that [Mr Booker] does not presently suffer the effects of his compensable condition.”

4.The letter by which Mr Booker made his application gave a post office box at the Stanthorpe Post Office as his address however it appears that Mr Booker spends a good deal of his time out of the country living in the Philippines. In the course of the hearing of this application he provided a list showing that he had not been present in Australia in the period from January 2008 to March 2008, April 2008 to September 2008 and November 2008 to February 2009. He is apparently scheduled to return to the Philippines in early May 2009 until August 2009.

5.On 25 August 2008 Comcare sent a notice to Mr Booker requiring him to attend a medical appointment with Dr Jill Reddan, a consultant psychiatrist, on 23 September 2008. The notice was expressed to have been issued and served in reliance upon s 57 of the Safety Rehabilitation and Compensation Act 1988.

6.The fact of the notice having been sent (and Mr Booker’s contention that it was “unlawful” because he was no longer an employee) was the subject of some debate at the directions hearing on 11 September 2006[1].

[1] See [2008] AATA 827 at [14].

7.Mr Booker did not attend the appointment on 23 September 2008. Comcare wrote to him seeking reasons for the non-attendance. No response was received to the letter. Then on 21 October 2008 the solicitors for Comcare wrote to the Tribunal (with a copy to Mr Booker) pointing out the fact of the default and the subsequent events.

8.In light of that correspondence the District Registrar wrote to Mr Booker on 27 October 2008 noting the apparent failure to attend the appointment and the effect of s 57(2) of the Act. The letter continued:

“It is important therefore if you consider these proceedings should not be suspended pursuant to s 57(2) of the SRC Act, that you notify the Tribunal within 14 days of this letter setting out your reasons and the Tribunal will conduct a hearing on that point.”

In the course of the hearing Mr Booker said that he had not received this letter.

9.On 10 November 2008 Booker wrote to the President of the Tribunal complaining of the actions of Comcare and the Tribunal. The Assistant Registrar responded to his letter on 12 December 2008. In the meantime, on 2 December 2008, I had made a direction that no further step be taken by Mr Booker in the proceedings without the leave of the Tribunal. I published reasons (which were provided to the parties) that sought to explain that the material before me satisfied me that the circumstances existed under which s 57 of the Safety, Rehabilitation and Compensation Act operated to suspend Mr Booker’s right to continue the proceedings. A copy of the direction and the reasons were sent to Mr Booker on 3 December 2008. Mr Booker did not suggest that he was unaware of the direction or the reasons for it.

10.On 2 April 2009 the solicitors for Comcare wrote to the District Registrar advising that Comcare had given instructions to bring an application under s 42A(5) of the Administrative Appeals Tribunal Act. A copy of the letter was sent to Mr Booker.

11.Mr Booker sent a letter to the Tribunal by facsimile on 6 April 2009. It was headed “Offer & Warning”. The letter included the following:

“However you are given the opportunity to arrange a medical assessment between 14-4-09 – 22-4-09. I will be leaving this satanic illusion of a democratic society with its immoral human rights abusing legal system after that date for some 3 months. I do require a formal hearing as is my right as I wish to look at your human rights abusing faces. You are given this opportunity for a medical but you should advise the medical practitioner to have security present and that I have had limited special forces training and am capable of executing or severely impairing as I choose. Let us hope I am not harassed to a breaking point at said medical. Remember death means nothing to me I have been there before in 1971.”    

12.Perhaps unnecessarily, the solicitors for Comcare made enquiries of Dr Reddan and three other consultant psychiatrists but none were able to offer appointments within this time frame provided by Mr Booker.

13.So far as is presently material, s 42A(5) provides as follows:

“If an applicant for a review of a decision fails within a reasonable time:

(a)to proceed with the application;

(b) …

the Tribunal may dismiss the application without proceeding to review the decision.”

14.The starting point is that, by operation of s 57(2) of the Safety, Rehabilitation and Compensation Act, Mr Booker’s rights to continue these proceedings are suspended and will remain suspended until the medical examination required by Comcare’s notice takes place. Whilst that remains the position Mr Booker will not be in a position to proceed with his application. He will only be in a position to do so if he undertakes the medical examination required by Comcare.

15.The question then is whether the evidence demonstrates a preparedness to do so such as would lead to the conclusion that Mr Booker intends or desires to proceed with his application. Mr Hawker, the solicitor for Comcare, submitted that that conclusion could not be reached. He pointed to the lateness of the offer to attend a medical examination, the short period of notice and the short duration of the period during which Mr Booker was prepared to attend, the fact that the offer to attend was accompanied by threats and the facts that Mr Booker was proposing to leave again for overseas in the near future. To that list might be added the fact that Mr Booker has persistently refused to attend the examination having foreshadowed in September 2008 an intention to refuse to attend.

16.In the course of the hearing Mr Booker proposed an alternative that he would be prepared to attend an examination in June or July 2009 provided that he was given a video and audio recording of the examination and copies of all notes made in the course of the examination and provided also that Comcare met all of his costs of travel from and to the Philippines and his internal travel within the Philippines. The other alternative he proposed was that the examination take place between 17 and 27 August 2009 when he intends to be back in Australia.

17.In Beard v Telstra[2] Spender J said that the power in s 42A(5):

“… 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.”

[2] (1999) 57 ALD 376 at 381 [30].

Even allowing for Mr Booker’s absences overseas there has been a failure on Mr Booker’s part to prosecute his proceedings. He was present in Australia at the time of the original appointment on 23 September 2008, an appointment that had been arranged during the limited period of time that he was proposing to be in Australia. He has not ever suggested that he had any excuse, let alone a reasonable excuse for his failure to attend that appointment. He departed Australia on 11 November 2008 without any suggestion that he was prepared to undertake the required medical examination and, assuming in his favour that he only learned of the suspension of the proceedings on, or shortly after, his return on 15 February 2009, he thereafter took no steps to remedy the situation that operated to suspend his rights to prosecute the proceedings.  

18.In my view the history of the matter clearly demonstrates a failure to proceed within a reasonable time. That conclusion is not affected by the belated and qualified offer to attend a medical examination between 14 and 22 April 2009. The circumstances of that offer do not satisfy me that it was made bona fide. The period of failure commenced on 23 September 2008 when Mr Booker failed, without reasonable excuse, to attend the medical examination with the result that his rights to proceed were suspended. Since that time he has taken no steps that would allow him to continue with his prosecution of the proceedings. Mr Booker continues to suggest, even at the hearing, that Comcare was not entitled to require a further examination.

19.Mr Booker raised a number of arguments in opposition to the relief sought by Comcare. First he suggested that neither Comcare nor the Tribunal had put him on notice about the effect of s 42A(5)(a) of the Administrative Appeals Tribunal Act. No source of this duty was suggested, however it seems to me, in any event, not to matter. Mr Booker has known, at least from mid-August 2008 when served with the notice under s 57 of the Safety, Rehabilitation and Compensation Act of the consequences of failure to attend the medical examination. He has known since at least late October 2008[3] that Comcare was contending that his entitlements to compensation and to continue with the proceedings had been suspended. He has known since mid-February 2009 that his right to pursue the proceedings had been suspended and would remain suspended until he underwent the medical examination. It is not an answer to Comcare’s application to say that he was not made aware of the potential for such an application.

[3]        From the letter from Sparke Helmore of 21 October 2008 to the Tribunal and copied to him.

20.Next, Mr Booker argued, by reference to a medical report in the material, that Comcare ought not to have made the decision that is the subject of his application. That report, by Dr Philip Morris dated 25 October 2006, suggested that “it may be prudent for Comcare to obtain another independent psychiatric report for consideration before making a final decision” on whether to withdraw Mr Booker’s entitlements. It is feasible that demonstrated merit of an application, or demonstrated absence of merit of an application, might be a matter to consider in the exercise of the discretion to dismiss however I do not regard the point raised by Mr Booker demonstrates merit in his case. Comcare subsequently obtained further reports from Dr Delaforce, Mr Booker’s treating psychiatrist, and made the decision in issue here after what appears on the face of the decision to be a careful consideration of the competing considerations. 

21.I do not consider that Mr Booker’s offer during the hearing to undergo an examination at some time in the future affects a conclusion on the issue of whether he has failed, within a reasonable time, to proceed with his application. If anything it demonstrates the extent of his failure to do so. The Tribunal’s statutory mandate is to “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”[4]. I am satisfied that Mr Booker has failed, within a reasonable time, to proceed with his application. Were it necessary for me to reach a conclusion about his future intentions, I would not be satisfied that he could or would proceed with the application in a timely way. In the circumstances I would dismiss Mr Booker’s application pursuant to s 42A(5)(a) of the Administrative Appeals Tribunal Act.

[4]        Administrative Appeals Tribunal Act, s 2A. See too s 33(1)(b).

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         ..............Signed......................................................
  Associate

Date of Hearing  20 April 2009

Date of Decision  24 April 2009
For the Applicant  In person
Solicitors for the Respondent    Sparke Helmore