Brackenreg and Comcare

[2005] AATA 88

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 88

ADMINISTRATIVE APPEALS TRIBUNAL      )

)No  D2003/34, D2004/13

GENERAL ADMINISTRATIVE DIVISION		)
Re		DEBORAH BRACKENREG

Applicant

And  COMCARE

Respondent

DECISION

Tribunal Senior Member McCabe

Date28 January 2005

PlaceBrisbane

Decision

1.     The stay order of 11 November 2003 is dissolved; and

2.     The applicant will be the first to present her case to the Tribunal at the hearing.

......................[sgd]........................

Senior Member McCabe

CATCHWORDS

PRACTICE AND PROCEDURE – Application for review – procedure at hearing – applicant to proceed first
COMPENSATION – Stay of decision – stay previously granted - grounds for granting stay - stay no longer necessary to secure effective hearing

Safety, Compensation and Rehabilitation Act 1988, s 16

Bushell v Repatriation Commission (1992) 175 CLR 408
Commonwealth v Muratore (1978) 141 CLR 296

REASONS FOR DECISION

28 January 2005

1.Deborah Brackenreg was injured in a car accident in the Northern Territory in 1984. She sustained injuries to her neck in particular and was partially incapacitated. The applicant’s compensation claimed was settled on the basis she would receive weekly payments. (The applicant was subsequently paid a lump sum in 1995. She does not continue to receive compensation for incapacity.) She was also entitled to receive compensation for reasonable medical treatment pursuant to s 16 of the Safety Compensation and Rehabilitation Act 1988.

2.The applicant continues to receive treatment for a range of ailments which she says arose out of her car accident. The list of conditions is set out in a letter from the applicant’s solicitor dated 16 April 2004. Comcare says many of these conditions are unrelated to the injury, which was characterised as whip-lash, or musculo-ligamentous injury. Comcare determined (in a letter to the applicant dated 23 June 2003):

“The current evidence available on file, points to the fact that you no longer suffer from the effects of your compensable injury sustained on 7 March 1984, no further approvals for treatment can be granted under s 16 of the Act.”

3.Comcare was asked to reconsider its decision. The reconsideration decision dated 29 September 2003 (at document T195) says:

“the weight of contemporaneous specialist medical opinion, indicates that there are no longer any orthopaedic, neurologic or psychiatric conditions arising from the injury sustained on 7 March 1984.”

4.The applicant has brought the matter before the Tribunal. She asked the Tribunal to stay the decision so that payments would continue while the matter was being considered. A stay was granted under s 41(2) of the Administrative Appeals Tribunal Act 1975 pending the hearing. The reasons for the decision are set out in Brackenreg and Comcare [2003] AATA 1358.

5.There has been considerable delay in obtaining a hearing. That is partly attributable to the fact the applicant resides in Darwin, and she has had difficulty obtaining the medical reports she says she requires. The matter was listed for the November circuit last year. It was not ready and an adjournment was granted. At that time, the applicant’s solicitor foreshadowed an application for a direction that the respondent must present its case first. The respondent disagrees with that approach. Comcare also foreshadowed an application to reconsider the stay decision. These reasons deal with each application.

the dux litis application

6.The applicant provided a detailed set of written submissions arguing in favour of a direction requiring that Comcare present its case first. The submissions suggested it was appropriate for the compensation authority to proceed first in cases where the authority alleged circumstances had changed and reduced the compensation currently being paid to nothing. The respondent provided written submissions as well.

7.The applicant’s solicitor referred to a number of authorities in support of his argument, including the decision of the High Court in Commonwealth v Muratore (1978) 141 CLR 296. The compensating authority in that case alleged there was a change in circumstances that caused an applicant to lose his entitlement to workers’ compensation. The applicant sought judicial review of the decision before the Workers’ Compensation Commission. The trial judge decided the onus of proof lay with the Commonwealth. The High Court agreed on appeal. Jacobs J said (at 302) “the onus lies on the party alleging a change of circumstances to prove it.”

8.The Tribunal has a different role to the courts, of course. It does not conduct a judicial review. It steps into the shoes of the primary decision-maker and considers the question afresh.  As Brennan J explained in Bushell v Repatriation Commission (1992) 175 CLR 408 at 425:

The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings.

9.The correct course is to conduct the proceedings in a way that is efficient and fair, having regard to the rules of natural justice, the relevant legislation, and common sense. In this case, the applicant says the wide range of conditions from which she suffers are attributable to her accident in 1984. She is in the best position to provide me with information about those conditions and the claimed link. The respondent is able to dispute Ms Brackenreg’s claim with evidence of its own, but I think it is logical and convenient as an administrative decision-maker to hear the applicant’s side of the story first.

The stay

10.The respondent says I should lift the stay order I made under s 41(2) on 11 November 2003. The applicant disagrees.

11.The power to order a stay in s 41(2) must be exercised in a principled way. The matters that would ordinarily be relevant to a decision in a case like this were considered in Repatriation Commission and Delkou (1985) 8 ALD 454. That case explained I should look to:

·Any hardship likely to be suffered by either party if the stay is granted or refused;

·The likelihood of the money being recovered from the applicant if she is unsuccessful in her application to review the determination in respect of which she has sought the order for a stay; and

·The prospects of success in that application for review.

12.While it is appropriate for me to take these matters into consideration, I must ultimately decide whether it is desirable to grant the stay after having considered the interests of the parties and whether the stay order is necessary in order to secure the effectiveness of the hearing.

13.The evidence provided to the Tribunal suggests Ms Brackenreg continues to require expensive treatments for her various conditions. The solicitor for the applicant says Comcare has not in fact paid for all of those expenses. The Tribunal should have been approached for clarification if there was any doubt about what expenses were covered by the terms of the order dated 11 November 2003. In any event, I accept the applicant is likely to suffer financial hardship if she has to meet all of the expenses on her own.

14.It is not clear whether the applicant has commenced employment. It is therefore unclear whether she is likely to have the capacity to repay the amounts paid by Comcare in the event the application is unsuccessful. The burden is likely to become more onerous the longer the stay remains in place.

15.I have not changed my views about the prospects of success. However I am no longer convinced the stay is necessary to secure the effectiveness of the hearing. The applicant’s solicitor suggests the hearing can be held notwithstanding the significant delay early in 2005. There is nothing in the evidence provided to me to suggest that lifting the stay will be an obstacle to dealing with matter.

conclusions

16.The stay order made on 11 November 2003 is dissolved.

17.The applicant will be the first to present her case to the Tribunal at the hearing.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         .....................................................................................

Associate:            Sam J Appleton

Date of Decision   28 January 2005
The applicant was represented by Ian Morris
The respondent was represented by Stephen Routh