Carbone and Comcare
[2012] AATA 665
•2 October 2012
[2012] AATA 665
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1119, 2012/0244
Re
TERESA CARBONE
APPLICANT
And
COMCARE
RESPONDENT
INTERLOCUTORY DECISION
Tribunal PROFESSOR RM CREYKE, SENIOR MEMBER
Date 2 October 2012 Place Canberra The application for reinstatement under section 42A(10) of the Administrative Appeals Tribunal Act 1975 (Cth) is refused.
...............................[sgd].........................................
PROFESSOR RM CREYKE, SENIOR MEMBER
CATCHWORDS
Practice and procedure — Applications — Reinstatement —Jurisdiction to reinstate - no error of Tribunal - statutory interpretation
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 42A(10)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 37(7)
CASES
Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 72 ALD 652
Manoli v Secretary, Department of Social Security (1994) 35 ALD 133
Re White and Repatriation Commission (unreported, SM McCabe, 21 January 2005)Re Myers and Federal Commissioner of Taxation (2004) 85 ALD 453
REASONS FOR INTERLOCUTORY DECISION
PROFESSOR RM CREYKE, SENIOR MEMBER
BACKGROUND
Ms Teresa Carbone had an injury described as 'aggravation of lumbar sprain and sciatica', which was accepted by Comcare as being due to employment in a decision dated 8 November 2011. The injury occurred when she was an employee with the Australian Customs and Border Protection Service, and was caused by sitting on a broken chair when participating in a training course at the end of April 2009.
A graduated return to work plan (RTWP) was in place for her rehabilitation. The substantive applications related to two reviewable decision. The first application, AAT reference number 2012/1119, related to a reviewable decision dated 20 March 2012 which denied liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for a secondary condition of ‘aggravation of anxiety and depression’. Ms Carbone claimed that the condition arose from being forced to do the RTWP, and then being forced to do duties not in accordance with medical advice.
The second application, AAT reference number 2012/0244, related to a reviewable decision dated 24 November 2011, which rejected Ms Carbone’s claim that the duties in her RTWP were not ‘suitable’. Her refusal to comply with the RTWP enabled Comcare to suspend her entitlements to compensation under section 37(7) of the SRC Act.
On 19 January 2012, Ms Carbone sought further review by the Tribunal. The Tribunal agreed to hear both matters together.
Ms Carbone in March 2012 accepted a new position in another department.
On 17 May 2012, Ms Carbone contacted the Tribunal to advise that she wished to withdraw her applications and, on receipt of the information about the process, emailed the Tribunal that day to withdraw.
The Tribunal thereupon notified both parties that the applications were withdrawn under section 42A(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) (Act). Under section 42A(1B) of the Act, the effect of the notification is that the Tribunal has dismissed the application without proceeding to review the decision.
On 19 July 2012, Ms Carbone emailed the Tribunal seeking to have the matters reinstated. The request for reinstatement was opposed by the other party.
On 11 September 2012, an interlocutory hearing was held to consider the request. In view of the claim that her health was affected on 17 May 2012, the Tribunal allowed Ms Carbone time to provide medical evidence of her health around the time of her application for withdrawal. She supplied documents on 18 and 21 September respectively.
EVIDENCE
Evidence of Ms Carbone
Ms Carbone gave evidence that at the time she withdrew the applications for review, she was under pressure and her health was suffering. At the end of March 2012 she had moved house and on 1 May 2012 she had changed jobs and departments and she stated at the hearing that ‘coming from an environment where I’d been bullied, I was adjusting to a new work environment and it was quite difficult’. She also said she was suffering palpitations. A Holter monitor was prescribed, that is, a device worn for 24 hours to monitor any heart rhythm problems causing symptoms such as palpitations.
She stated that during discussions at the Tribunal, she “felt pressurised to submit reports and attend medical appointments”, and that the “whole timing of the matter was not really suitable” to her situation. Therefore, she said she wanted to postpone the matter, but thought she “had no option but to withdraw."
Ms Carbone also claimed that when she telephoned the Tribunal on 17 May 2012, she had asked what were her options, and was not advised that she could seek an extension of time. She said that the only advice she received was how to withdraw her application.
The documents provided on 18 September 2012 contained telephone records for calls Ms Carbone made to a 13/1300 number between 19 April 2012 and 16 June 2012. Ms Carbone’s evidence was that these calls were to an Optus telephone advice service for psychological counselling. The records show that Ms Carbone made numerous one or two minute calls to that number during this period. However, calls of any length, as could be expected if the call was to obtain psychological counselling, occurred about once a day only during the mid-April to mid-June period.
On 21 September 2012, Ms Carbone also provided the clinical notes from her general practitioner, Dr David Buckman, Ginninderra Medical & Dental Centre, for the period 11 March 2012 to the 15 June 2012.
The notes indicate that Ms Carbone had a medical certificate for 19 – 20 March 2012 as her ‘neck and back very sore’ (sic) and on 23-24 April 2012 for a ‘visual disturbance, which was very minor and fleeting’ and that on 17 April she reported ‘starting a new job in two weeks’ and ‘she has had “high levels of stress”’.
On 21 May 2012, the records state ‘She is getting a lot of palpitations lately but she relates this to her anxiety level’ and “She has pulled out of her claim for work-related anxiety and stress compensation because of the toll it was taking on her emotions’. The notes also state ‘She has a new job now and wants to move on’.
On her doctor’s recommendation, Ms Carbone wore a Holter monitor on 25 May 2012 to assess her level of palpitations. However, the clinical records for 27 May 2012, note ‘Holter monitor [report] looks unremarkable’.
Ms Carbone consulted her doctor on 5 occasions during May 2012. The consultations referred on two occasions to her reporting ‘anxiety’ and ‘palpitations’. No medication was prescribed for Ms Carbone’s neck and back conditions, nor for her anxiety.
Tribunal evidence
The Tribunal’s record of the telephone conversation on 17 May 2012 states:
A[pplicant] contacted T[ribunal] to advise that she wanted to withdraw her application. She explained that she wanted to withdraw her application as it was taking a toll on her and the burden was not worth it in the long term. She also said that the issues in question had been mostly resolved by her changing job. A[pplicant] wanted to know how she can withdraw her application.
C[lient] S[ervice] O[fficer] advised she could either write an email to us to say she wanted to withdraw her applications or complete the Notice of Withdrawal form provided online.
A[pplicant] emailed Canberra Registry at that moment to withdraw her application.
LEGISLATION
Section 42A(10) of the Act provides:
If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appears to it to be appropriate in the circumstances.
CONTENTIONS AND RESPONSES
Ms Carbone claimed a number of reasons for her withdrawal of the applications. In an email to the Tribunal dated 19 July 2012, she stated that she ‘was forced to close the case due to health reasons’. She also stated ‘I was not advised otherwise by the AAT of other options than closing’.
In an email to the Tribunal dated 6 August 2012, Ms Carbone said she believed the applications were dismissed in error because:
I felt I was being put under a lot of pressure to write reports, attend an interstate medical appointment and provide information to the tribunal as evidence in a short period of time. This all happened at the commencement of a new workplace environment and Department, where the transition between the issues I experienced in my old workplace and adjusting to the new workplace were also having an effect on me. The result being a significant affect [sic] on my health, exacerbating my anxiety. Therefore, I needed to withdraw my application to protect my health. I wanted to defer the application, however, I was not advised otherwise.
Ms Carbone also said at the hearing that the ‘hassle’ of a hearing inhibited her willingness to continue with the process.
Counsel for Comcare submitted that under section 42A(10) of the Act the Tribunal may reinstate an application for, among others, an ‘administrative error’.[1] In addition, in exercising the discretion to reinstate, the Tribunal should consider a number of factors including ‘the conduct of the applicant; any prejudice to the respondent; the merit of the substantial case; and the overriding obligation to do what is fair in the circumstances’.[2]
CONSIDERATION
[1] Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 72 ALD 652.
[2] Manoli v Secretary, Department of Social Security (1994) 35 ALD 133; Re White and Repatriation Commission at [9] (unreported, SM McCabe, 21 January 2005); Re Myers and Federal Commissioner of Taxation (2004) 85 ALD 453 at [19].
Whether there has been an ‘error’
The Tribunal may only reinstate a matter if there has been ‘error’. It is alleged that the error was that the Tribunal did not advise Ms Carbone when she rang the Tribunal on 17 May 2012 of options other than withdrawal of her application. She alleged that she asked about her options but was not advised of any alternatives other than withdrawal, and that this was an administrative error on the part of the Tribunal.
The Tribunal permitted Ms Carbone further time to provide evidence that her health was suffering around 17 May 2012, in case her health conditions prevented her seeking the appropriate advice from the Tribunal. It did so in the exercise of its discretion to be ‘fair in the circumstances’, and in order that Ms Carbone be given the opportunity to show either that her distress at the time would have been apparent to someone in the Tribunal when she telephoned, or that she was confused and likely to have thought she had asked the Tribunal about options but in fact had not done so.
In relation to evidence Ms Carbone provided in response, the Tribunal notes that, if it is accepted that the calls to the 13/1300 number were for psychological counselling – and the Tribunal only has Ms Carbone’s word to that effect - a history of one substantive counselling call a day during the relevant period does not indicate excessive stress levels.
That finding is reinforced by the medical records at the time. One of the three consultations with her doctor made by Ms Carbone in April 2012 referred to her informing him of her ‘high levels of stress’. However, in March she also consulted her doctor about her neck and back pain and the report of 19 March 2012 noted she ‘had a massage and feels better now’. In addition, although there are references in the clinical notes to Ms Carbone reporting ‘high levels of stress’ during the period around 17 May 2012, her doctor did not prescribe any medicine for that stress, and the recording of her heart rate by the Holter monitor at the time was found to be ‘unremarkable’.
This suggests that Ms Carbone may have been suffering a level of stress at the time, but it was clinically not of sufficient seriousness to require medication. Nor was it likely in those circumstances for her stress to have been obvious in a call to the Tribunal on 17 May 2012. In addition, her stress does not appear to be of a sufficiently serious nature as to inhibit Ms Carbone making her intentions plain in the telephone call to the Tribunal on 17 May 2012. The Tribunal notes that Ms Carbone was able at the time to phone the Tribunal and seek advice on how to effect a withdrawal of her applications. She was also able to respond quickly to that advice, as indicated by the fact that she emailed notification of her intention to withdraw to the Tribunal immediately after concluding the phone call.
Ms Carbone also gave evidence that she specifically asked the Tribunal about her options in relation to pursuing her claim when she rang on 17 May 2012. The Tribunal only has her word for that claim. The file note by the client service officer makes no reference to that request and that is contemporaneous evidence of the conversation. In addition, the clinical notes of her doctor on 21 May 2012 confirm the substance of the file note. The note refers to Ms Carbone saying that ‘she pulled out of her claim [for compensation] … because of the toll it was taking on her emotions’ and ‘she has a new job now and wants to move on’. That record supports the substance of the file note, namely, that Ms Carbone’s intention at that time was to put the claim behind her and to focus on her new position in a different department and that in order to do so she withdrew her applications.
The Tribunal is satisfied on this evidence that Ms Carbone voluntarily withdrew her application because it would benefit her health and enabled her to ‘move on’. Nor were her health conditions or concerns at the time of such magnitude as to, as she claimed, ‘force’ her to withdraw her applications. Nor were they of such moment that she was unable to represent her intentions to the Tribunal accurately and with sufficient particularity. Accordingly, the Tribunal prefers to rely on the file note as evidence of the content of the telephone conversation on 17 May 2012, rather than Ms Carbone’s version of that conversation.
The final question is whether the Tribunal erred in not presenting Ms Carbone with options other than withdrawal in response to her telephone conversation on 17 May 2012. It is not for the Tribunal to do other than respond to requests by applicants for information. There are also limits on the type of information which can be provided by the Tribunal in response to requests for information. For example, it is not for the Tribunal to provide legal advice about other options available. So, if Ms Carbone had sought information about her legal options in relation to withdrawal of her applications, it was not permissible for the Tribunal to give her legal advice on those issues.
However, if an intimation is given by an applicant that she or he would like information about alternatives to withdrawal before making a decision to withdraw, and the information concerns procedural matters or information which is not legal advice and which is appropriate for the Tribunal, as a body with an obligation to assist applicants, to provide, then the Tribunal should provide that information, particularly if the applicant is unrepresented. On the evidence which the Tribunal has accepted, that was not the situation in relation the Ms Carbone's request.
The Tribunal has found that Ms Carbone simply informed the Tribunal that she wished to withdraw and asked how to effect the withdrawal. There was no intimation in the conversation that she was ambivalent about her choice and the fact that Ms Carbone acted immediately after she received the advice to withdraw her applications supports that inference. In those circumstances, there was no administrative error on the part of the Tribunal.
Other factors relevant to a decision about reinstatement
In addition, the Tribunal notes that an application for reinstatement should be made within 28 days. Ms Carbone delayed her application for two months. In other words, her own conduct was not exemplary in this matter. Decisions by the Tribunal are intended to finalise the matters brought before it (section 42A(6)). The application has prevented that finality which is a principle underpinning Tribunal processes, and has put Comcare to the trouble of responding to the request for reinstatement when it was entitled to consider the matter had been concluded.
In these circumstances, there has been no error by the Tribunal either of fact or law, nor has it perpetrated an administrative error in relation to its response to Ms Carbone’s telephone call of 17 May 2012. Accordingly, under section 42A(10) of the Act, the Tribunal rejects the application by Ms Carbone to reinstate her applications.
I certify that the preceding 35 (thirty five) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member. ………………[sgd]……………………………
AssociateDated 2 October 2012
Date(s) of hearing 11 September 2012 Date final submissions received 21 September 2012 Applicant In person Counsel for the Respondent Rebecca Curran Advocate for the Respondent Sarah Florendo Solicitors for the Respondent Norton Rose
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