Clark and Comcare (Compensation) - [2020] AATA 864

Clark and Comcare (Compensation) [2020] AATA 864 (17 April 2020)
Division:GENERAL DIVISION
File Number: 2019/1302
Re:Sharon Clark
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Senior Member D O'Donovan
Date:17 April 2020

Place:Canberra

The Tribunal vacates the hearing listed from 10 June 2020 to 12 June 2020 and directs that:
1.On or before 24 April 2020 the respondent must give to the Tribunal and the other party a document which states in respect of each summons which the respondent has requested the Tribunal issue:
(a)that the respondent has conferred with the recipient about a return date of the summons and it is satisfied that the summons recipient can comply by that return date;
(b)the issue in the proceedings to which the documents sought in each summons are relevant and the basis on which the respondent believes the documents may shed light on the issue.

2.On or before 1 May 2020, the parties must file Hearing Certificates covering the period 13 July 2020 to 2 October 2020 based on the assumption that the hearing will proceed by video rather than in person.

........................................................................
Senior Member D O'Donovan
PRACTICE AND PROCEDURE – Workers Compensation - application to vacate the hearing dates – concerns surrounding COVID-19 pandemic - whether hearing can be held using alternative technological methods - health condition of the applicant and her Counsel considered – procedural fairness and prejudice considerations – delay occasioned by change in summons procedure considered – hearing vacated on summons ground only - directions made
Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 33A
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475
National Companies & Securities Commission v News Corp Ltd (1984) 156 CLR 296
RCB v Hon Justice Forrest (2012) 247 CLR 304
R v MacDonald; Obeid; Obeid (No11) [2020] NSWSC 382
Saraceni v Australian Securities & Investments Commission (2013) 211 FCR 298
REASONS FOR DECISION
Senior Member D O'Donovan
17 April 2020
INTRODUCTION

This matter is listed for hearing over three days from 10 June 2020 to 12 June 2020. The applicant has made a request that the hearing dates be vacated. While I have not accepted any of the reasons advanced by the applicant as providing a proper basis for vacating the hearing date, for the reasons which follow the hearing date has been vacated. I do however wish to re-list the matter as soon as possible and accordingly direct:
(a)On or before 24 April 2020 the respondent must give to the Tribunal and the other party a document which states in respect of each summons which the respondent has requested the Tribunal issue:
(i)that the respondent has conferred with the recipient about a return date of the summons and it is satisfied that the summons recipient can comply by that return date;
(ii)the issue in the proceedings to which the documents sought in each summons are…

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: [2020] AATA 864
Decision Date: 17 April 2020

CaseChat Overview and Summary

This decision was made by Deputy President D O'Donovan SM of the Administrative Appeals Tribunal in a matter involving Clark and Comcare concerning compensation entitlements. The applicant sought to vacate a hearing scheduled to proceed via Microsoft Teams, raising objections related to technological limitations, the health of counsel, and the applicant's own health.

The primary legal issue before the Tribunal was whether proceeding with the hearing via Microsoft Teams would breach the requirements of procedural fairness, particularly in light of the applicant's objections. The Tribunal was required to consider the content of procedural fairness, which is not fixed but depends on the nature of the proceedings, the parties involved, and the statutory context.

The Tribunal reasoned that the limitation of seeing only four participants at a time on Microsoft Teams was adequate for a compensation hearing, allowing visibility of opposing counsel, any witness, and the Tribunal. While acknowledging that specific technical issues could necessitate an adjournment, the Tribunal found that the general use of Microsoft Teams was consistent with sections 2A and 33A of the *Administrative Appeals Tribunal Act 1975* (Cth) and did not inherently raise procedural fairness concerns. The Tribunal distinguished the present case from *McDonald et al*, noting that the difficulties encountered in that case were more extensive and rendered the trial impractical, whereas the Tribunal's experience with Microsoft Teams had thus far been successful. In the absence of evidence of likely unreliability or specific difficulties in arranging witness appearances, the Tribunal declined to vacate the hearing.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In addition, the Tribunal must make its decisions consistent with the requirements of procedural fairness. The content of procedural fairness however is not fixed.[1] The content of procedural fairness depends on the nature of the proceedings, the persons claiming its benefit and the statutory context.[2][1] Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation(1963) 113 CLR 475 at 504 (Kitto J); National Companies & Securities Commission v News Corp Ltd(1984) 156 CLR 296 at 312 (Gibbs J). [2] RCB v Hon Justice Forrest(2012) 247 CLR 304 at [42] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); Saraceni v Australian Securities & Investments Commission(2013) 211 FCR 298 at [73] – [74] (Jacobson J, Gilmour J agreeing); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union v Abigroup Contractors Pty Ltd[2013] FCAFC 148 at [125] (Katzmann and Rangiah JJ).CONSIDERATION The applicant’s objections to the matter proceeding can be grouped into three categories:(a)Technological considerations;(b)Health considerations concerning counsel; and(c)Health considerations concerning the applicant. In relation to the submissions made concerning the appropriateness of proceeding with a hearing using Microsoft Teams and, in particular, the fact that only 4 participants can be visible at any one time, I reject that as a basis for vacating the hearing. If the hearing were to proceed using Microsoft Teams, at any given time, the applicant’s counsel will be able to see opposing counsel, any witness and the Tribunal. In the context of a hearing concerning compensation entitlements that is adequate. If a particular situation arose where some restriction in the Teams platform prevented a party seeing an important participant at a crucial stage it is possible that the matter may need to be adjourned. However, as a general proposition the use of Microsoft Teams does not raise procedural fairness concerns and its use is consistent with both section 2A and is authorised by section 33A of the AAT Act. In relation to the decision of MacDonald et al, the first point to note is that what is sufficient for the Tribunal to discharge its procedural fairness obligations in conducting a hearing are not co-extensive with the requirements for the conduct of a fair criminal trial. The second important point is that there were a wide range of technical and practical problems which emerged in the conduct of the trial in McDonald et al which rendered it impractical to proceed. If the kind of specific difficulties that were identified in that case (which included parties being unable to connect, parties dropping out and difficulties finding a safe location for witnesses to give evidence) did emerge during the conduct of a Tribunal hearing, it may well have to be re-scheduled for an in-person hearing. However, to date, the Tribunal’s use of the Microsoft Teams platform has been successful in the small number of matters in which it has been used. In the absence of evidence that it is likely to be unreliable or there are specific difficulties in arranging the appearance of witnesses, I am not be prepared to vacate the hearing at this stage based on concerns that the hearing may encounter technical difficulties.