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.

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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

1. 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 relevant and the basis on which the respondent believes the documents may shed light on the issue.

   (b)That on or before 1 May 2020 the parties file hearing certificates for the period 13 July 2020 to 2 October 2020 based on the assumption that the hearing will proceed by video rather than in person.

2. For almost 15 years the applicant has been in receipt of compensation payments from the respondent in relation to an injury suffered in 2005. On 15 November 2018, the respondent made a determination that it had no present liability to pay medical expenses and incapacity payments to the applicant. On 11 January 2019, the respondent made a reviewable decision affirming the determination made on 15 November 2018. The applicant applied for review of that determination by the Tribunal on 8 March 2019. The matter has been the subject of a preliminary conference and a significant amount of medical evidence has been filed. The central issue in the proceedings appears to be a simple one - whether the applicant’s sedentary work duties in 2005 materially aggravated degenerative changes in the applicant’s lumbar spine producing the pain and disability which she has complained of since. If they did, and the aggravation is ongoing, then compensation is payable. If they did not, then the decision under review should be affirmed.

3. On 22 January 2020, the Tribunal was notified that two new workers’ compensation claims had been submitted by the applicant to the respondent on 15 January 2020. Both relate to medical conditions which have their origin in the 2005 injury and could not be accepted unless there is a material contribution from the applicant’s work to the ongoing pain which developed in 2005. On 12 February 2020, the parties sought to delay the hearing of this application to allow the respondent to make determinations in relation to the other claims and to have all of the various conditions considered at the same time. I decided against that course and listed the matter for hearing in relation to the reviewable decision made on 11 January 2019. The issue which is fundamental to determining the outcome of all of the applicant’s claims - the contribution of work to the pain that she suffers - is adequately joined in this application. While the other applications will expand the diagnostic complexity of the case, the central issue which must be determined by the Tribunal remains the same. The sooner that issue is determined, the quicker the applicant’s claims can be resolved.

4. On 2 April 2020, the applicant made a request to vacate the hearing stating that:

   In light of the recent COVID-19 pandemic and the Government Gazette of the State of NSW No. 65 dated Monday, 30 March 2020, we request that the hearing be vacated.   

5. The Government Gazette referred to put in place restrictions to reduce the spread of the virus known as COVID-19. As the Government Gazette referred to did not in terms prohibit the hearing going ahead and provided an express exemption from the restrictions imposed in relation to ‘work’, I declined to vacate the hearing date based on that request. My associate informed the parties that the Tribunal was now conducting hearings by telephone, video and on the papers in light of the issues which had arisen in relation to COVID-19 and indicated that if there was a specific concern in relation to this matter a directions hearing should be requested.

6. The applicant requested a directions hearing and submissions were heard on the question of vacating the hearing.

7. Shortly before the directions hearing the respondent changed solicitors.

8. At the directions hearing on 9 April 2020, the applicant renewed her request for the hearing date to be vacated. A number of bases for the application were advanced. All flowed from restrictions on movement and contact which have arisen as a consequence of the spread of COVID-19. The parties were aware that the Tribunal was not proposing to proceed with the hearing face to face but objection was still taken by the applicant in relation to the matter proceeding using other forms of technology.

9. The applicant objected to the hearing proceeding via video with the use of the Microsoft Teams. She noted technical limitations with Microsoft Teams including the number of persons who could be seen on a screen at any one time. She also drew to my attention the decision of R v MacDonald; Obeid; Obeid (No11) [2020] NSWSC 382 (Macdonald et al), a decision of the NSW Supreme Court concerning the adjournment of a criminal trial on the basis that a fair trial could not be achieved using virtual courtroom facilities.

10. In addition to these general objections to proceeding using technology to facilitate the conduct of the hearing, the applicant identified a number of matters specific to this case which posed difficulty. The first were health concerns in relation to the counsel which the applicant has briefed. At this point the applicant’s counsel is not attending chambers due to a respiratory illness. Further, the applicant herself has been diagnosed with cancer and has been advised by her oncologist that she is severely immuno-compromised and should self-isolate. The difficulties this creates are compounded by the fact that the applicant’s lawyers are based in Sydney whereas she is located in Canberra. The applicant’s representative indicated that it was her universal practice to visit Canberra to meet with her Canberra clients ahead of hearings and to go through documents with them and this could not occur at present.

11. The respondent did not object to the applicant’s request for an adjournment but noted that there were a number of summonses outstanding. The respondent was not in a position to indicate whether credit was in issue.

12. After the hearing of the application I received advice from the Tribunal registry in relation to the progress of summonses in this matter. It became clear that COVID-19 has caused disruption to the Tribunal’s processes for issuing summonses. Out of concern to ensure that documents can be examined safely by parties and to limit the administrative burden on medical practices, the Tribunal has scrutinised more closely requests for the issue of summonses. This has meant that summonses that the respondent requested be issued in late March 2020 have not been issued. This became relevant to my consideration of whether the hearing dates should be vacated.

    LEGAL FRAMEWORK

13. Section 2A of the Administrative Appeals Tribunal Act 1975 (AAT Act) provides that in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

    (a)is accessible; and

    (b)is fair, just, economical, informal and quick; and

    (c)is proportionate to the importance and complexity of the matter; and

    (d)promotes public trust and confidence in the decision-making of the Tribunal.

14. Section 33A of the AAT Act provides:

    The Tribunal for the purposes of a hearing, or the person conducting a directions hearing or alternative dispute resolution process, may allow or require a person to participate by telephone or by means of other electronic communications equipment.

15. 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

16. 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.

17. 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.

18. 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.

19. 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.

20. Turning then to the health issues which have arisen for the applicant’s counsel. They are clearly serious as he has been unable to attend chambers in recent weeks. That non-attendance appears to be more in the nature of a prophylactic measure rather than the result of illness. In the current environment it is more than reasonable for persons to take these kinds of measures to limit their exposure to the risk of infection with COVID-19. However, the applicant’s submission does not address whether or not these issues can be overcome by the use of technology including the delivery of an electronic brief and attendance at the hearing electronically. As no face to face hearing is proposed, and electronic communication of documents is commonplace, if not the norm, there does not appear to be any health issue with the applicant’s counsel which could not be overcome by the use of electronic communication.

21. It is then necessary to consider whether the applicant’s health issues provide a basis for vacating the hearing. In considering these submissions I am proceeding on the basis that the applicant has compromised immunity as a result of medical treatment and accordingly is highly vulnerable to contracting COVID-19 and in a category of persons for whom the virus would have dire consequences if contracted. In these circumstances, it is essential that nothing is done in the course of these proceedings which carry any additional risk that the applicant might be exposed to the virus.

22. It is obviously impossible for the hearing to proceed in person in these circumstances. The question then arises whether the hearing can proceed electronically. No submission was put that the applicant does not have access to the necessary technology to attend and give evidence using Microsoft Teams.

23. What was submitted was that the restrictions on the applicant prevent her solicitor from meeting with her in person and taking her through the relevant documentation.

24. I accept that face to face meetings with clients was the applicant’s lawyer’s universal practice prior to the advent of COVID-19. However, I am not satisfied that the absence of a face to face meeting between lawyer and client is essential for proceedings to be lawfully conducted by the Tribunal. Modern methods of communication allow documents to be sent to the applicant electronically so that she is in a position to refresh her memory from that material. Witness statements can be taken over the telephone or by a video call. Instructions can be given in the same way. While this arrangement may not be perfect or the preferred method of pursuing these proceedings, there is no identifiable prejudice or procedural unfairness to the applicant which would justify a vacation of the hearing date. Having regard to the Tribunal’s objective of providing fair, just, economical, informal and quick review of decisions the inability of the applicant to meet face to face with her lawyer is not a persuasive reason for vacating the hearing date.

25. In these circumstances, and in the absence of any specific evidence that electronic means cannot be used to facilitate a hearing consistent with requirements of procedural fairness, I am not persuaded that the hearing ought to be vacated for any of the reasons advanced by the applicant. If the reasons advanced were accepted, it is difficult to envisage the matter being able to proceed before a vaccine for COVID-19 has been developed. The applicant’s and her counsel’s health vulnerabilities will remain even if social distancing restrictions are lifted. Close contact between those persons and third parties from different cities will continue to be risky into the foreseeable future.

26. However, for reasons unrelated to those advanced by the applicant, I have decided that it is appropriate to vacate the hearing date. The respondent sought the issue of summonses on 20 March 2020 and has in the last couple of days sought the issue of two more. To date, these requests have not been actioned by the Tribunal as a consequence of the need to review its procedures in light of the risks posed by COVID-19.

27. I am not prepared to issue any summonses in the current environment unless I am satisfied that the time-frame for return of the summons has been discussed with the recipients and can be met by them, and that the issue of the summonses is appropriate in light of the broad social changes which concerns about COVID-19 have brought about. Before making a decision on that question I need to give the party seeking the issue of summonses an opportunity to explain the forensic purpose which the issue of each summons serves.[3] 

    [3]I note that the material that is likely to be of most value is material relating to the period in which the applicant’s symptoms developed which appears to be September 2005 and into 2006. The notes of the applicant’s GP, Dr Lyn Thew and her treating surgeon Dr Pik are obviously important in determining whether the applicant’s pain developed as a consequence of her sedentary work for the Commonwealth. However, there may be other sets of documents which are important. At present the respondent proposes casting the net more broadly. I wish to give it an opportunity to explain why it is appropriate to do so.

28. By the time that procedure has been completed it is unlikely that both parties will have timely access to the summonsed documents ahead of the scheduled hearing. Accordingly, I am satisfied that the hearing as scheduled should not proceed.

29. However, once the summonses have been returned and the documents reviewed, the matter is ready for hearing and immediate steps should be taken for a further listing.

30.     
I certify that the preceding 29 (twenty nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member D O’Donovan.

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Associate

Dated: 17 April 2020

Date(s) of hearing:	9 April 2020
Solicitor for the Applicant:	Ms Mailian, Carroll & O’Dea Lawyers
Solicitor for the Respondent:	Ms McGowan, Australian Government Solicitor