Clavero and Australian Postal Corporation (Compensation)
[2020] AATA 4167
•19 October 2020
Clavero and Australian Postal Corporation (Compensation) [2020] AATA 4167 (19 October 2020)
Division:GENERAL DIVISION
File Number: 2020/2763
Re:Roberto Clavero
APPLICANT
AndAustralian Postal Corporation
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:19 October 2020
Place:Brisbane
The Tribunal refuses the Applicant’s request for a stay order.
.................................[SGD].......................................
Deputy President J Sosso
CATCHWORDS
PRACTICE AND PROCEDURE – application to stay decision of Australian Postal Corporation – whether a stay order would secure the effectiveness of the hearing and determination of the application for review – whether Applicant has prospects of success in substantive application – whether Applicant would suffer financial hardship if stay order refused or granted – whether making of a stay order would guarantee ongoing compensation payments – Applicant’s request for a stay order refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Australian Postal Corporation v Oudyn [2003] FCA 318
Australian Securities and Investment Commission v Administrative Appeals Tribunal (2009) 181 FCR 130
Avtex Air Services Pty Ltd and Civil Aviation Safety Authority [2010] AATA 716
Blackwell and Comcare [2017] AATA 1118
Carson and Telstra Corporation [2001] AATA 648
Clement and Comcare [2006] AATA 705
Commonwealth of Australia and Quirke (1986) 9 ALD 92
Commonwealth Banking Corporation and Iannello (1988) 15 ALD 418
Dekanic and Tax Agents’ Board of New South Wales (1982) 6 ALD 241
Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380
Lees v Comcare [1999] FCA 753
Re Repatriation Commission and Delkou (1985) 8 ALD 454
Scott and Australian Securities and Investments Commission [2009] AATA 798Telstra Corporation v Hannaford (2006) 151 FCR 253
REASONS FOR DECISION
Deputy President J Sosso
19 October 2020
INTRODUCTION
On 12 September 2019 Mr Roberto Clavero (the Applicant) submitted a claim for compensation to his employer, the Australian Postal Corporation (the Respondent), in relation to “compression of the neck C6 & C7” which, it was contended, arose in the course of his employment – T4 pp. 26 - 38. Further, the Applicant, in his claim, indicated that he had not previously had “a similar injury/illness” – T4 p. 26.
On 7 November 2019 the Respondent accepted liability for compensation to be paid to the Applicant for “aggravation of the pre-existing multilevel degeneration of the cervical spine” pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) with the date of the disease determined as 26 August 2019, being the date that the Applicant first sought medical treatment for the condition – T22 pp. 106 – 107.
Subsequently, the Respondent accepted liability for the payment of various medical costs pursuant to s 16 of the Act – T24 pp. 112 – 115, T25 pp. 116 – 120, T26 pp. 121 – 125, T35 pp. 148 – 151 and T37 pp. 154 – 157. Further, various determinations were made pursuant to s 19 of the Act in relation to incapacity payments and s 37 in relation to a rehabilitation program.
On 3 February 2020 a delegate of the Respondent found there was no present liability to pay medical or incapacity payments – T50 pp. 198 – 204 and T51 pp. 205 – 209. These decisions were revoked on 24 March 2020 by the Reconsideration Delegate – T57 pp. 234 – 236 and T58 pp. 237 – 239.
The Respondent referred the Applicant to Dr H J P Khursandi, Consultant Orthopaedic Surgeon, for medical assessment and report. Dr Khursandi examined and assessed the Applicant on 25 September 2019 and prepared a report dated 11 October 2019 – T14 pp. 83 – 91. In that part of the report dealing with the Applicant’s past history, Dr Khursandi made the following observations – T 14 p. 85:
“According to the information provided by Mr Clavero and presentation of previous imaging reports, he has a history of neck pain with paraesthesia of the upper limbs in Sydney, treated with steroid injections of the neck. The documents presented by him included a CT scan examination of the cervical spine performed on 3 June 2014; a CT-guided injection to the C5/6 facet joint on 12 June 2014 and 6 August 2014.
In 2016 he was diagnosed with radiculopathy of the left upper limb and underwent a CT-guided injection of the cervical spine on 3 February 2017.
He has also been treated with Lyrica tablets and no occasion has he received any physiotherapy.”
On 8 April 2020 a delegate of the Respondent exercising discretionary powers under s 62(1) of the Act reconsidered the determination of 7 November 2019 – T62 pp. 245 - 246. Reference was made to Dr Khursandi’s report and the Applicant’s attention was drawn to s 7(7) of the Act. This subsection deals with those circumstances were a claimant has made a wilful and false representation. The delegate found that there was no liability to pay the Applicant compensation pursuant to s 14.
The delegate also drew the Applicant’s attention to s 114 of the Act which would allow the Respondent to recover any payments made in relation to the claimed injury and noted “at this stage” the Respondent would not seek to recover moneys paid, subject to possible review.
On 5 May 2020 the Applicant applied under the Administrative Appeals Tribunal Act 1975 (the AAT Act) for review of the reconsideration decision of 8 April 2020 – PT1 pp. 8 – 14. Subsequently on 26 June 2020 the Applicant made a Request for a Stay Order.
The Applicant stated that his prospects for a successful determination of his claim were soundly based and denied he made wilful and false representations. The Applicant also made the following claims with respect to possible prejudice to him if the Tribunal did not grant a stay:
“16. My last compensation payment was made on 22nd of January 2020 in the sum of $1502.79. After that, I received a further net payment of $1816.42 cents on 5th February 2020 for accrued holiday pay/annual leave. My last sick leave (and public holiday) payment was for $87.12 on 13th May 2020. I have no source of income whatsoever save for a minuscule interest payment (less than $2/month). My financial situation is perilous at the moment. I live in shared rental accommodation. I am reliant upon my very modest and continuously shrinking savings which will be exhausted if my wages and compensation payments are not resumed promptly. I cannot afford for the treatment and surgery which is recommended by Dr Tollesson. This deficit will not be rectified in the interim by a final hearing and decision in my favour excepted to be not earlier than March 2021.
17. Further, in the absence of receiving the treatment and surgery recommended by Dr Tollesson, I am suffering from ongoing and continuous pain which impacts adversely on every aspect of my life including very importantly my sleep. I am enduring sleep deprivation as I am unable to have any uninterrupted and meaningful sleep. The treatment and surgery recommended by Dr Tollesson is essential to my recovery and my ability to resume work. I am desirous of being well enough to resume a lifestyle that I had prior to 26th August 2019, including my usual work duties.
18. In the absence of a stay order, the damages and prejudice to me of a delayed decision of a hearing estimated to be not earlier than March 2021 would be incalculable. Moreover, a positive decision in my favour at a final hearing (expected to be not earlier than March 2021) would not address in any way the distress which I suffer because of my strained financial circumstances nor would it remedy the pain and suffering and loss of enjoyment of life which I am enduring in the meantime.
19. The extent of this pain and suffering and loss of enjoyment of life cannot be overstated.
20. The waiting list for my surgery is expected to grow exponentially so that the delay will only be exacerbated especially with COVID-19 restrictions….”
INTERLOCUTORY HEARING
An Interlocutory Hearing was convened in Brisbane on 7 August 2020. The Applicant was assisted by Mr T Puryer and the Respondent was represented by Mr M Hawker.
A number of issues were ventilated at the Hearing apart from the application for a stay order, including whether the Respondent had provided the “T documents” within the prescribed time period, whether the Respondent was in breach of s 61(1)(b) of the Act, the standing of Mr Puryer to represent the Applicant and an objection to a summons being issued.
Whilst the issue of the “T documents” and the status of Mr Puryer to assist the Applicant were resolved, the other issues were not finally dealt with at the Hearing. It was agreed that before those issues could be resolved the question of the stay order needed to be addressed. Accordingly, this determination relates solely to the question whether the Applicant’s request for a stay order should be granted.
THE LAW
Subsection 41(2) of the AAT Act provides as follows:
“The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.”
The power to make a stay order is to be construed broadly so that it can be appropriately applied to the diverse range of review applications that can be made – Dekanic and Tax Agents’ Board of New South Wales (1982) 6 ALD 241.
It is important to note at the outset that, subject to s 41 of the Act, an application for review does not affect the operation of the reviewed decision or prevent the taking of action to implement it – s 41(1) of the AAT Act. This is an especially important matter where the decision under review has the effect of ceasing payments to an applicant. An applicant therefore has to make out a case for the granting of a stay order – Re Repatriation Commission and Delkou (1985) 8 ALD 454 (Delkou) at 458.
In Delkou Deputy President Hall first made the following observations (Delkou at 457):
“The power conferred by s 41(2) of the Act is a power to make an order ‘staying or otherwise affecting the operation or implementation of the decision of a part of the decision’ sought to be reviewed. It is a power that enables the Tribunal to preserve the status quo pending the hearing and determination of the application for review where the ‘effectiveness’ of the review may be jeopardized if the decision, in the meantime, is carried into operation. Thus the power may be exercised when it is appropriate to do so to ensure that the application for review, if successful, is not rendered nugatory…”
Deputy President Hall then discussed the granting of stay orders in a cessation of payments scenario (Delkou at 457):
“On occasions, the Tribunal has stayed the operation of decisions cancelling social welfare benefits where, deprived of that support, the applicant faces serious hardship. Notwithstanding the possibility that, if the application for review is unsuccessful benefits may be paid in the meantime to which the applicant was not entitled and which may be irrecoverable, the Tribunal has recognised that, in a very practical sense, the review may be rendered nugatory unless the applicant is provided with the means of sustenance pending the hearing…”
Next Deputy President Hall outlined the principal factors to be taken into account when determining whether to make a stay order (Delkou at 461 – 462):
(a)any hardship an applicant would suffer by reason of the grant or refusal of a stay order;
(b)likelihood of recovery of moneys paid under the determination sought to be stayed;
(c)prospects of success of the application for review.
In subsequent workers compensation determinations, the Tribunal has specifically applied these factors – Commonwealth of Australia and Quirke (1986) 9 ALD 92 and Commonwealth Banking Corporation and Iannello (1988) 15 ALD 418.
As the Respondent submitted (Respondent’s Submissions Opposing Grant of Stay (RSOGS) para 4.5), ultimately a stay order should only be granted when the Tribunal is satisfied that is desirable to do so. The Tribunal’s attention was drawn to Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380 where the Tribunal made these observations regarding the word “desirable” in s 41(2) – at [47]/384:
“the word ‘desirable’ connotes a ‘positive aspiration’ and that it is ‘something worthy of achievement’ rather than ‘merely advisable’…”
Whilst hardship is an important factor that has to be taken into account, it is not the primary focus of the decision to grant a stay order. As was pointed out by the Tribunal in Clement and Comcare [2006] AATA 705 at [14], the discretion to grant a stay order is “for the purpose of securing the effectiveness (and processes) of the hearing and the review that is on foot.”
It is also relevant in this matter to consider the overall scheme and operation of the Act.
The central, and threshold, provision in the Act founding liability to pay compensation is s 14 which provides as follows:
“(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of any injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.”
The Full Federal Court in Lees v Comcare [1999] FCA 753 at [34] made the following observation:
“A determination under s 14 cannot amount to more than a determination that Comcare ‘is liable to pay compensation in accordance with this Act’ in respect of a particular injury. The amount of compensation which Comcare is liable to pay, the person or persons to whom compensation will be payable and the time or times at which Comcare’s liability will give rise to a present obligation to make payments are…all matters to be determined under other provisions of the Act.”
The Respondent also drew the Tribunal’s attention to the Full Federal Court decision of Telstra Corporation v Hannaford (2006) 151 FCR 253, and, in particular, to the following observations of Conti J (at [57]/273 – 274:
“…the AAT is empowered to make subsequent findings of fact in relation to the circumstances the subject of decision-making under ss 16 and 19 of the SRC Act, and also under ss 21 and 27 of the SRC Act, where the determination of the first instance decision-maker…made under the auspices of s 14 of the SRC Act remains in operation in the sense that it has not been the subject of an inconsistent outcome in the context of a subsequent review by the AAT. The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer. The opening words of s 14(1) ‘[s]ubject to this Part’ are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged.”
The Tribunal has explained on numerous occasions that “cease effects” determinations usually do not involve a revocation of acceptance pursuant to s 14, but rather involve a reconsideration of incapacity or a finding that medical treatment is no longer necessary or is no longer in relation to the compensable injury. The following observations were made by the Tribunal in Carson and Telstra Corporation [2001] AATA 648 at [49] (Carson):
“It would only be a rare case where a reconsideration of the substantive determination under s 14 that Comcare was liable to pay compensation in accordance with the Act would be warranted. Such a case might arise, for example, if it was subsequently discovered that the injury had never in fact occurred or that the person claiming was never in fact an employee.”
In this matter the Respondent relies upon s 7(7) which provides:
“The disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.”
The Applicant correctly highlights (Issues for Determination (IFD) para 26) that absent a finding of liability under s 14, compensation cannot be paid pursuant to, for example, ss 16 and 19. Section 14 is the “substantive determination” as opposed to the “adjectival determinations” under ss 16 and 19. Acceptance of liability under s 14 is the threshold issue and a rejection of liability necessarily renders any other compensation question moot. It is for this reason, as the Tribunal highlighted in Carson, that it is rare that determinations involve revocation of acceptance of liability under s 14.
The Applicant also highlights (IFD para 29) that if a stay order is made there may be consequential effects on other determinations made by the Applicant. In short, a stay order may have a broader impact than simply the determination under review.
CONSIDERATION
Introduction
As discussed above, the Tribunal both in Delkou and many subsequent determinations, has considered application for stay orders where payments are involved through the prism of key factors. Those factors are by no means exhaustive of the task required of the Tribunal, and each application brings with it unique facts that require consideration. Nonetheless, the principal factors highlighted in Delkou provide a useful framework.
The Tribunal notes, for example, that President Downes in Scott and Australian Securities and Investments Commission [2009] AATA 798 at [4] also outlined a non-exhaustive set of factors to be taken into account. President Downes also drew attention to the public interest and questions of timing. A similar list of factors was outlined by Senior Member Tavoularis in Blackwell and Comcare [2017] AATA 1118 at [6] (Blackwell).
The above determinations highlight that the Tribunal can take into account, when considering an application for a stay order, a range of matters and it is not helpful to attempt to codify those factors that may be relevant.
The parties made specific submissions on both the prospects of success and financial circumstances. Both of these are discussed below. Neither party made specific submissions on the issue of the Applicant’s capacity to repay compensation paid should he be unsuccessful. In part this is due to the Respondent’s submissions (dealt with below) on the limiting effect of a s 14 review determination.
For the sake of completeness, the evidence before the Tribunal suggests that if the Applicant was paid further compensation payments and was unsuccessful at the substantive hearing, due to his deleterious financial circumstances, he would find it difficult to repay any compensation moneys paid to him in the interim.
Prospects of success
The Respondent contends (Respondent’s Further Submissions Relating to Applicant’s Stay Application (RFSRASA) para 3.6) that before starting employment with the Respondent in July 2017, the Applicant had a history of pack pain and was treated with steroid injections of the neck. The Applicant, it is contended, underwent CT scans and CT-guided injections of the cervical spine in 2014 and 2017. Further, the Applicant was prescribed Lyrica for his neck pain.
The Respondent further contends (RFSRASA para 3.7) that before starting employment with the Respondent the Applicant underwent a medical examination in March 2017 and in response to Questions as to whether he had ever experienced neck pain, stiff neck or whiplash (Q 36), treatment on back or neck (Q 39) or underwent back or neck x-ray or scan (Q 40) the Applicant answered in the negative.
The Respondent (RFSRASA para 3.8) drew the Tribunal’s attention to the Applicant’s Claim for Rehabilitation and Compensation where he answered in the negative to the Question whether he had ever had a similar injury/illness.
Finally, the Respondent made the following submission (RFSRASA para 3.9):
“The applicant’s response in these proceedings to the evidence of false representations in the pre-employment medical questionnaire has been to seek to have it excluded and not admitted as evidence (see applicant’s submissions dated 6 August 2020 at [121]). The Tribunal is not bound by the strict rules of evidence and the document is highly relevant. The applicant has offered no substantive explanations for the false representations in the pre-employment examination in March 2017 and in circumstances where they were made within weeks of undertaking significant undisclosed treatment to the neck in February 2017, it is reasonable to conclude the representations were wilfully false. Accordingly, s 7(7) operates to exclude liability such that he decision to revoke initial liability under s 14 is the correct or preferable decision.”
The Applicant contends (IFD para 31) that paragraphs 3.6 – 3.8 of RFSRASA are “unverified conjecture and speculation” and no sworn evidence has been adduced to verify the statements. The following submission was made:
“…In short, there is no evidence to support the Respondent’s unverified and unsubstantiated assertions. Whilst the Tribunal is bound by the rules of evidence nevertheless, it is mindful of these rules and practices for the proof of allegations, particularly when a party is on notice that challenges will be made to such unverified and unsworn allegations. A serious allegation should be the subject of a through sworn statement to explain and identify a document of questionable origin.”
The Applicant (IFD para 33) outlined a series of objections to the Pre-Employment Medical Assessment document which was referred to as the “Sunnybank document”. The Applicant referred it as an “unverified document” which it contended was not relevant to the determination of 9 April 2020. The Applicant made the following submission (IFD para 33b):
“…Accordingly, the Sunnybank document, being an unverified document ostensibly made on or about 1st March 2017 and predating the claim form apparently being the alleged wilful and false statement by more than 2.5 years is not relevant to the issues before the Tribunal…The Sunnybank document does not bear upon the issues before the Tribunal except for the purpose of unsubstantiated and unverified prejudice.”
Whilst, as the Tribunal pointed out in Delkou, it is not appropriate for a stay application to morph into a preliminary trial, it is nonetheless incumbent on the Tribunal to make an interim assessment about the strength of an application. It needs to be emphasised that such an assessment is a preliminary one only, and such an assessment by no means should be viewed as a considered view about the strength or weakness of an application. An Interlocutory Hearing has all the shortfalls of a proceeding that is short and lacks the probity and rigour that only a full Hearing can achieve.
The key contention of the Respondent is that the Applicant made a wilful and false representation in his Claim for Rehabilitation and Compensation Form by answering “No” to the Question had he had a similar injury/illness. The Tribunal has before it the Form (PT4 pp. 26 – 29), and on its face, it appears to indicate that the Applicant has incorrectly answered the Question.
Further, the “Sunnybank document” (SST1 pp. 2 – 10) is also before the Tribunal, and likewise on its face appears to indicate that the Applicant has incorrectly answered key Questions.
The relevance of this document is obvious. From the perspective of the Respondent, it discloses a pattern of conduct whereby the Applicant has failed to disclose his medical history. It would, if that be correct, suggest that the Applicant has wilfully engaged in making false representations with the aim of receiving compensation which he was not entitled to.
The Applicant’s submissions that these documents are “unverified” and amount to “conjecture” and “speculation” is misplaced. The Tribunal has no substantive material before it that would suggest that these documents are not legitimate. There is no substantive material that these documents are false, “doctored” or in any way “fake”. The Applicant’s submissions claiming that these documents need verification at the interlocutory stage is again misplaced. The Tribunal proceeds on the assumption that documents presented by parties are legitimate, and if there is any suggestion to the contrary, the party making that serious and damaging submission needs to substantiate it. Again, there is nothing substantive before this Tribunal that would lead it to go behind these documents and require further proof of their authenticity.
The task required of the Tribunal was succinctly stated in Avtex Air Services Pty Ltd and Civil Aviation Safety Authority [2010] AATA 716 at [24]:
“…the Tribunal’s task is not to conduct a mini trial. It needs to examine the factual material before it and the relevant law, and arrive at a conclusion that the applicant could succeed if the stated facts were proved to the relevant level of satisfaction...”
Clearly the thrust of the Applicant’s submissions is that the Tribunal conduct a mini-trial. This is not appropriate at this stage of the proceedings. Further, the factual material before the Tribunal, if proved to be correct when tested at a full Hearing, would likely support the Respondent’s contention that s 7(7) is enlivened. In these circumstances, the Tribunal finds that on the state of the material before it, and subject to it being properly tested at a Hearing, that the Applicant’s prospects of success are poor.
Financial Circumstances
The Respondent contended (RFSRASA para 3.10) that the Applicant made contradictory submissions, namely a stay order should be made due to his financial hardship but also he would be in a position to repay any moneys owed due to a $206,000 balance in a superannuation account. The Tribunal was presented with evidence of such an account.
The Respondent also contended (ARFSRASA paras 3.11 – 3.12) that the Tribunal had no independent evidence of the Applicant’s financial hardship or of his savings, other than his superannuation account. Further, the Respondent contended that there was insufficient probative evidence to accord the claim of financial hardship any weight in favour of granting the stay order.
The Respondent also contended (RFSRASA paras 3.13 – 3.14) that the granting of the stay order would not automatically result in the Applicant receiving payments under ss 16 and 19 as the Tribunal’s jurisdiction is limited to the s 14 determination.
The Applicant referred (IFD para 36) to his previous statements about his “perilous financial circumstances” and stated that he “is mindful and aware of his obligation of candour to the Tribunal.”
With respect to the Applicant’s ability to access his superannuation account, the following submission was made (IFD para 42):
“The Respondent has disingenuously suggested that the Applicant can access all or part of his superannuation entitlement even though he has not attained vesting age. A simple look at the guidelines reveals that the Applicant is not eligible under any grounds to access his superannuation at this time. The suggestion by the Respondent to the contrary is quite patently false. I attach as an addendum the grounds for access to superannuation to which the Respondent referred.”
The Applicant also disagreed (IFD para 44) with the Respondent’s contention that the grant of a stay order would have no impact on ss 16 and 19 compensation payments:
“the grant of a stay will, contrary to the Respondent’s suggestion, result in the Applicant having an immediate right to compensation which has accrued since the decision on eight of April 2020. Further, the grant of a stay will also enable the Applicant to receive the medical treatment and rehabilitation that is so necessary to his circumstances…”
I accept, based on the material before the Tribunal, that it is more likely than not that the Applicant is suffering from financial hardship.
However, the Tribunal does not accept that the Applicant cannot access his superannuation account in order to receive the medical treatment he claims he needs. The addendum to the Applicant’s submissions of 28 August 2020 comprises two documents from the Australian Tax Office (ATO) on early access to superannuation.
In the second document entitled “Early access to your super” in the section headed “Access on compassionate grounds” the following information is provided:
“You may be allowed to withdraw some of your super on compassionate grounds. Compassionate grounds include needing money to pay for:
·medical treatment and medical transport for you or your dependant
·palliative care for you or your dependant…”
There is also scope to access superannuation savings due to severe financial hardship as well as temporary and permanent incapacity.
Whilst the Tribunal has not been presented with an detailed information about the Applicant’s superannuation scheme, and, in particular any provisions about withdrawal of funds prior to a person reaching the vesting age, nonetheless the above information from the ATO suggests there is scope for the Applicant to access superannuation moneys for medical treatment.
In the circumstances, then, the Applicant’s difficult financial circumstances prima facie do not appear to prevent him accessing his superannuation account for the medical treatment he claims he requires.
Statutory test of “purpose”
Subsection 41(2) of the AAT Act provides that the Tribunal, having taken into account the interests of any persons who may be affected by the review, may make such order or orders staying or otherwise affecting the operation of the reviewable decision as “the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.”
The Respondent (RFSRASA para 3.16), having pointed out that the Applicant’s position is that a stay order will result in compensation payments resuming thus allowing him to undergo surgery and alleviating his deteriorating medical condition, made the following submissions.
First (RFSRASA para 3.17), the Tribunal routinely deals with diverse applicants with diverse medical conditions and has flexible conference and hearing processes to ensure the effectiveness of the hearing, irrespective of whether a stay order is made.
Second (RFSRASA para 3.18), the Applicant is represented by a pro bono former legal practitioner and it is not contended that he will lose that representation if a stay order is not made.
Third (RFSRASA para 3.19), there is no probative evidence before the Tribunal that the Applicant’s neck condition will deteriorate to the point he will be unable to retain the capacity to instruct his pro bono representative or give evidence.
Fourth (RFSRASA paras 3.21 – 3.22), the Applicant misconceives the nature and effect of a s 14 determination. A s 14 determination only renders the Respondent liable to pay compensation. The amount and time which give rise to a present obligation to make payments are determined under other provisions in the Act.
The Respondent, it is submitted, would not be liable to make payments under ss 16 and 19 of the Act if the Applicant were successful. A future decision-maker would be empowered to make subsequent findings of fact in relation to ss 16 and 19 determinations. In short, the practical outcome may well be no different when a ss 16 and 19 claim is determined irrespective of whether the decision under review is stayed.
Finally, the Respondent made the following submissions (RFSRASA paras 3.24 – 3.25):
“In exercising the discretion to grant a stay, the Tribunal cannot cause the respondent to be bound with respect to any future application for compensation. This means any exercise of the discretion to grant a stay cannot result in an order compelling the respondent to pay compensation for future medical expenses or incapacity payment until there is a positive determination of the substantive application…
Accordingly, the fundamental basis or assumption relied upon by the applicant as to why a stay would secure the effectiveness of the hearing regarding ongoing payments of compensation under the SRC Act is not sustainable as a matter of law. The statutory test has not been satisfied in that the granting of a stay would not, in the circumstances of this particular case, serve ‘the purpose of securing the effectiveness of the hearing and determination of the application for review.”
In response (IFD para 47) the Applicant contended that he had a genuine and real belief, on reasonable grounds, that he will not be able to properly prosecute these proceedings to finality without receiving compensation and the surgery and treatment by Dr Tollesson. Further, the Applicant contended (IDF para 48) that he had genuine concerns that he may not be able to survive until March 2021 (the possible Hearing date) without receiving compensation and undergoing surgery.
Mr Puryer (IDF para 48) was not able to give any medium or long-term commitment to representing the Applicant beyond the stay application. Accordingly, it was submitted that it is likely that the Applicant will have to seek alternative representation and it is unfair that he be left without adequate representation or support.
As to the Respondent’s contention that there was no probative medical evidence that the Applicant would be unable to properly and competently prosecute his application to finality, the Tribunal’s attention was drawn to the letter of 18 February 2020 from Dr Tollesson to the Respondent. Dr Tollesson made the following observations (T52 p. 210):
“As I understand you have declined Mr Clavero’s surgery. He has ongoing symptoms of significant cervical radiculopathy and filled out a new pain questionnaire today where he states a 70% disability in Oswestry and this brings him into the category of patients described as being essentially crippled due to disability.”
Finally, the Applicant contended, at length, that the Respondent was wrong in law with respect to its interpretation of the legal consequences of making a s 14 stay order on the operation of determinations made pursuant to ss 16 and 19.
It was pointed out (IFD paras 52 – 55) that the Tribunal determination in Blackwell was distinguishable from this matter as it did not involve s 7(7).
The Tribunal’s attention was then drawn to the Determinations of the Respondent of 24 March 2020 (T57 pp. 234 – 236 and T58 pp. 237 - 239) which accept a present liability to make compensation payments pursuant to ss 16 and 19. The following submission was then made (IFD paras 58, 62):
“If the Tribunal orders that the decision of the Respondent made on 8 April 2020 is stayed, then the two decisions made on 24th of March 2020 continue to operate and are binding upon the Respondent. In short, these two decisions have already been made and express unequivocally the ongoing liability of the Respondent for the Applicant’s claims. The Respondent is bound by these two decisions. Once the operation of the decision of 8 April 2020 is stayed, then the two decisions made on 24 March 2020 operate and are binding on the Respondent…
Moreover, in circumstances where the Tribunal granted a stay of the decision of 8 April 2020, it would be tantamount to contempt of the Tribunal, to seek to defeat such an order by making decisions on future applications which were inconsistent with the spirit if not the express terms of the stay.”
Dealing first with the Applicant’s submissions regarding Blackwell, it is correct that it did not involve a s 7(7) scenario. However, the principles of law enunciated in Blackwell by Senior Member Tavoularis with respect to stay orders are of general application. Having considered Blackwell I note that it is a carefully written determination which correctly and succinctly summarises the general principles of law in this area.
Next, it is important to clearly set out the interrelationship between acceptance of liability under s 14 and determinations to make payments under (for example) ss 16 and 19. Rather than referring to Blackwell, reference will be made to the decision of Cooper J in Australian Postal Corporation v Oudyn [2003] FCA 318. His Honour made the following pertinent observations:
“30 The decision of the Full Court in Lees makes clear that a decision to accept liability under s 14 of the Act involves no more than acceptance of a liability to pay compensation under the Act in accordance with the provisions of the Act in respect of a particular injury. A decision to accept liability under s 14 of the Act involves findings as to the five elements identified by the Full Court in par [35] of its reasons.
31 The content, duration and means of satisfying the liability to pay compensation is to be found and worked out by determinations made under other sections of the Act including s 24. These determinations give substance to the liability ‘…to pay compensation in accordance with this Act’, provided for in s 14. They do not require that the determination under s 14 of the Act to accept liability be reconsidered or revoked when the liability to pay under s 14 is satisfied by payment in accordance with the requirements of one or more of the other sections of the Act. The liability under s 14 of the Act to pay compensation stands until it is discharged in accordance with the Act. Once discharged it is terminated…
33 Where APC is paying compensation under one or more sections of the Act and it determines that its liability to pay in accordance with that section has been satisfied, the relevant determination is that the payment cease because the circumstances entitling payment under that section no longer exist, or can no longer be made out by the claimant. It is a determination under that section. It operates in respect of the claim then in existence for the payment of compensation under that section. It does not operate as a bar to future claims in respect of that injury if the circumstances under that section can be made out again in the future, or if it can be brought under another applicable section of the Act.
34 APC cannot bind itself in advance to reject a future application on the basis of a determination made to cease payment of compensation for an injury under a particular section of the Act: Plumb v Comcare (1992) 39 FCR 236 (FC) at 240. Nor can that result be achieved by purporting to determine on a reconsideration of a determination under s 14 that a liability, which correctly and effectively attached to APC in respect of a particular injury, ceased on the date of the determination and that entitlement to compensation under any section of the Act was thereafter excluded in respect of the injury. The Act does not contemplate the making of such a determination once liability under s 14 of the Act has properly arisen and a determination made to accept a claim made in accordance with s 54 of the Act.”
The Tribunal was not cited any specific authority for the proposition that if the decision not to accept liability under s 14 is stayed that the anterior determinations accepting liability to pay compensation under ss 16 and 19 would not reactivate.
The Full Federal Court in Australian Securities and Investment Commission v Administrative Appeals Tribunal (2009) 181 FCR 130 accepted the proposition that s 41(2) of the AAT Act contains the power to modify or limit the operation of another Commonwealth statute. In short, s 41(2) is a provision granting broad discretionary powers to the Tribunal when making stay orders.
In the normal course, if the Tribunal grants a stay order with respect to a s 14 rejection of liability decision, then, prima facie any anterior determinations authorising payments under ss 16 and 19 are reactivated, or, put another way, continue in effect.
Even if that were not the case, the Tribunal has, prima facie the power under s 41(2) to make the necessary orders to allow that course of action to occur.
It flows from the above that the Tribunal does not agree with that part of the Respondent’s submissions.
The point made by Cooper J in Oudyn and by Senior Member Tavoularis in Blackwell was that a stay order cannot bind the Respondent with respect to future applications for compensation. Cooper J made it explicitly clear that a positive determination of liability under s 14 is the threshold step, but in the normal course the practical decisions on the nature, amount and timing of compensation are made pursuant to other sections of the Act, and, in this case, ss 16 and 19.
The granting of a stay order with respect to s 14 in no way binds the Respondent with respect to determinations under ss 16 and 19. This principle applies not only to future applications for compensation under those provisions, but also in respect of reconsideration decisions for current Determinations.
With all due respect to the Applicant, there is no legal principle that binds the Respondent from reconsidering current Determinations. The Full Federal Court in Hannaford made it very clear that future decision makers are empowered to make subsequent findings of fact in relation to previous determinations under ss 16 and 19. The exercise of that discretion is not, as has been suggested, corrosive of a stay order impacting on s 14. The stay order merely ensures that that liability continues to be accepted in principle. Whether payments can or should be made under other provisions is a matter for the relevant decision-makers to determine having regard to the facts before them. As Conti J pointed out in Hannaford, the scheme of the Act allows for progressive and evolving decision-making. At each point of time the Act empowers decision-makers to make contemporary and relevant decisions based on the evidentiary matrix that exists at that time.
To focus on the particular factual matrix of this matter, the granting of a stay order would not necessarily result in the Respondent being prevented from reconsidering the Determinations of 24 March 2020 and in no way would it bind the Respondent to make positive determinations with respect to any future compensation applications under ss 16 and 19. The Tribunal is not able to bind the Respondent as to any future decisions it may make. The Tribunal does not have that power because it is not the function of the Tribunal to prevent the Respondent from making considered decisions based on the evidence before it. If the Tribunal attempted to restrict the Respondent from exercising its decision-making powers under ss 16 and 19 in an unfettered manner as contended by the Applicant, it would be acting outside of its powers.
In these circumstances the Tribunal finds the Applicant’s submission that a stay order would secure the effectiveness of the Hearing because it would guarantee ongoing compensation payments is not sustainable as a matter of law.
CONCLUSION
Based on the material before the Tribunal, the following findings are made:
(a)the Applicant’s prospects of success in the substantive application are, prima facie, poor;
(b)the Applicant’s capacity to repay compensation moneys is limited;
(c)the Applicant, has, prima facie, the opportunity to access his superannuation account to obtain money to pay for his surgery; and
(d)the making of a stay order would not bind the Respondent to make ongoing compensation payments pursuant to ss 16 and 19.
Having regard to the above findings I do not consider the making of a stay order is appropriate for securing the effectiveness of the Hearing and the determination of the substantive application.
DECISION
The Applicant’s request for a stay order is refused.
I certify that the preceding 88 (eighty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
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Associate
Dated: 19 October 2020
Date of hearing: 7 August 2020 Date final submissions received: 28 August 2020 Advocate for the Applicant: Mr T Puryer Solicitor for the Respondent: Mr M Hawker
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