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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] AATA 281
Decision Date: 24 April 2009

CaseChat Overview and Summary

This case involved an application by Comcare, the respondent in a substantive review application brought by Mr Robert Booker, to have Mr Booker's application dismissed. The substantive application concerned a decision by Comcare that Mr Booker did not presently suffer the effects of his compensable condition and therefore denied present liability under sections 16 and 20 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The issue before the tribunal was whether Mr Booker had failed to proceed with his application within a reasonable time, as required by s 42A(5)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

The tribunal found that Mr Booker had failed to attend a required medical appointment, which resulted in the suspension of his rights to continue the proceedings. Despite being given multiple opportunities to attend a medical examination, Mr Booker had not taken any steps to remedy the situation that led to the suspension of his rights. The tribunal considered that Mr Booker's belated and conditional offer to attend a medical examination did not demonstrate a genuine intention to proceed with the application. Furthermore, the tribunal was not satisfied that Mr Booker's arguments regarding the merits of the case or his claims of lack of notice about the potential consequences of failing to attend the medical examination had any bearing on the issue of whether he had failed to proceed with his application within a reasonable time.

The tribunal dismissed Mr Booker's application pursuant to s 42A(5)(a) of the Administrative Appeals Tribunal Act 1975 (Cth). The tribunal found that Mr Booker had failed to proceed with his application within a reasonable time, and his failure to attend the required medical examination and take steps to remedy the situation led to the suspension of his rights to continue the proceedings. The tribunal also noted that the power in s 42A(5) requires that, at the time of the decision to dismiss the application, a reasonable time has elapsed and there has been a failure by the applicant to prosecute their application.

The final orders of the tribunal were that Mr Booker's application be dismissed pursuant to s 42A(5)(a) of the Administrative Appeals Tribunal Act 1975 (Cth). The tribunal certified that the 21 preceding paragraphs were a true copy of the reasons for the decision.

Orders