Cleary and Comcare (Compensation)

Case [2016] AATA 402

Cleary and Comcare (Compensation) [2016] AATA 402 (17 June 2016)

Division

General Division

File Number

2014/4243

Re

Gary Cleary

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President J W Constance

Date 17 June 2016
Place Sydney

In accordance with subsection 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) the application for review lodged by Mr Cleary on 18 August 2014 is dismissed by reason of his failure to proceed with the application within a reasonable time.

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

J W Constance
Deputy President

CATCHWORDS

DISMISSAL - workers compensation matter - whether application should be dismissed by reason of the Applicant's failure to proceed with the application in a reasonable time - whether discretion to dismiss application should be exercised - where applicant refuses to or fails to attend medical appointments - application dismissed.

LEGISLATION

Administrative Appeals Tribunal Act (Cth) ss 2A(b), 33(1)(b), 42A(5)

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 57

CASES

Berry v Commissioner of Taxation [2015] FCA 1244

Charara v Commissioner of Taxation [2016] FCA 451

REASONS FOR DECISION

Deputy President J W Constance

  1. On 18 August 2014 Mr Cleary lodged an application with the Tribunal seeking a review of Comcare’s decision to refuse his claim for compensation in respect of an injury which he alleges he suffered as a result of his employment by the Australian Taxation Office. His claim was made in accordance with the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”).

  2. For reasons to which I shall later refer, on 13 January 2016 Comcare applied for a direction that Mr Cleary’s application be dismissed without the Tribunal proceeding to review Comcare’s decision.

  3. For the reasons which follow I have decided that Mr Cleary’s application should be dismissed by reason of his having failed, within a reasonable time, to proceed with his application.

    THE POWER TO DISMISS

  4. Subsection 42A(5) of the Administrative Appeals Tribunal Act (Cth) (“the AAT Act”) provides:

    Dismissal if applicant fails to proceed or fails to comply with Tribunal’s direction

    (5) If an applicant for a review of a decision fails within a reasonable time:

    (a)to proceed with the application; or

    (b)to comply with a direction by the Tribunal in relation to the application;

    the Tribunal may dismiss the application without proceeding to review the decision.

    BACKGROUND

  5. Mr Cleary submitted his claim to Comcare on 9 January 2014.  The claimed injury was an “anxiety disorder’ in respect of which he first sought treatment in February 2010. He claims that the injury was caused by a series of events in his workplace commencing in 1991.

  6. During the entirety of these proceedings Mr Cleary has resided in the suburb of Wollongong, less than 20 kilometres from the centre of the city.

  7. By letter of 8 October 2014 Comcare’s Solicitors advised Mr Cleary that an appointment had been made for his assessment by Dr Rees, Psychiatrist, at her rooms in Sydney. The appointment was scheduled for 5 November 2014. In addition to advising of this…

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AGLC
Cleary and Comcare (Compensation) [2016] AATA 402
Case
[2016] AATA 402
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review lodged by Mr Cleary with the Administrative Appeals Tribunal (AAT) on 18 August 2014, seeking review of a decision by Comcare. The dispute centred on Mr Cleary's failure to attend a medical examination arranged by Comcare, which Comcare argued was necessary to assess his claim for an anxiety disorder allegedly arising from his employment. The AAT, presided over by Deputy J W Constance P, was required to determine whether Mr Cleary had failed to proceed with his application within a reasonable time and, if so, whether to exercise its discretion to dismiss the application.

The legal issues before the Tribunal were threefold: first, whether Mr Cleary had failed to proceed with his application; second, if he had, whether this failure occurred within a reasonable time; and third, if both of these conditions were met, whether the Tribunal should exercise its discretion to dismiss the application. The Tribunal considered the objective of providing a fair, just, economical, informal, and quick review mechanism, as well as the principles established in cases such as *Berry v Commissioner of Taxation* and *Charara v Commissioner of Taxation*, which emphasise that the power to dismiss should be used sparingly and as a last resort, with procedural fairness afforded to the applicant.

The Tribunal reasoned that Mr Cleary had failed to proceed with his application, noting that despite lodging it in August 2014, there had been minimal progress beyond a single preliminary conference. The primary impediment was Mr Cleary's repeated failure to attend medical assessments arranged by Comcare, which had led to the suspension of his rights to compensation and to continue proceedings under section 57 of the *Safety Rehabilitation and Compensation Act 1988* (Cth). The Tribunal found that the delay since November 2014 was occasioned by Mr Cleary's non-attendance at these assessments, and it was not satisfied that his health prevented attendance for the entirety of this period. Furthermore, the Tribunal determined that the matter had not proceeded within a reasonable time, referencing an initial expectation that such matters would be finalised within 12 months.

Consequently, the Tribunal concluded that Mr Cleary had failed to proceed with his application within a reasonable time and that it was appropriate to exercise its discretion to dismiss the application. The Tribunal found that continuing the matter without the necessary medical assessment would not be fair to Comcare and would not meet the statutory requirement for expedition. Therefore, in accordance with subsection 42A(5) of the *Administrative Appeals Tribunal Act 1975* (Cth), the application for review lodged by Mr Cleary was dismissed.

Orders

Orders of the court

In accordance with subsection 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) the application for review lodged by Mr Cleary on 18 August 2014 is dismissed by reason of his failure to proceed with the application within a reasonable time.

Background

Background to the litigation

Subsection 42A(5) of the Administrative Appeals Tribunal Act (Cth) (“the AAT Act”) provides:Dismissal if applicant fails to proceed or fails to comply with Tribunal’s direction (5) If an applicant for a review of a decision fails within a reasonable time: (a)to proceed with the application; or (b)to comply with a direction by the Tribunal in relation to the application; the Tribunal may dismiss the application without proceeding to review the decision.BACKGROUND Mr Cleary submitted his claim to Comcare on 9 January 2014. The claimed injury was an “anxiety disorder’ in respect of which he first sought treatment in February 2010. He claims that the injury was caused by a series of events in his workplace commencing in 1991. During the entirety of these proceedings Mr Cleary has resided in the suburb of Wollongong, less than 20 kilometres from the centre of the city. By letter of 8 October 2014 Comcare’s Solicitors advised Mr Cleary that an appointment had been made for his assessment by Dr Rees, Psychiatrist, at her rooms in Sydney. The appointment was scheduled for 5 November 2014. In addition to advising of this appointment by letter Comcare issued to Mr Cleary a notice in accordance with section 57 of the SRC Act requiring his attendance at the appointment. Section 57 of the SRC Act provides:(1)Where:(a)a notice has been given to a relevant authority under section 53 in relation to an employee; or(b)an employee has made a claim for compensation under section 54;the relevant authority may require the employee to undergo an examination by one legally qualified medical practitioner nominated by the relevant authority.(2)Where an employee refuses or fails, without reasonable excuse, to undergo an examination, or in any way obstructs an examination, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place. The notice read, in part:Notice of Requirement to Attend for Medical examination [Section 57 of SRCA]Comcare, through its legal representatives, Lehmann Snell Lawyers, has made an appointment for you to attend Dr Anne-Maree Rees, Psychiatrist for a medical examination. Under s 57(1)(b) of the Safety Rehabilitation and Compensation Act, you are required to attend the appointment. Refusing or failing to attend the appointment without reasonable excuse will result in your claim (including the associated Administrative Appeals Tribunal proceedings) being suspended until such time that you attend a further examination arranged by us.The purpose of this examination is to obtain specialist medical evidence in connection with your claim for compensation for psychiatric symptoms alleged to result from your employment at the ATO. On 15 October 2014 the Tribunal held a first telephone conference with Mr Cleary and Comcare’s representative. On 27 October 2014 Mr Cleary advised Comcare’s Solicitors by telephone that he was unable to attend the appointment with Dr Rees as he could not travel to Sydney for medical reasons. He said that it was not possible for him to travel to Sydney under any circumstances and that he could not travel from his home to Wollongong CBD. When asked if he could provide medical evidence in support of his contentions he said that he could not but that he had an appointment to see his psychologist, Mr Ward, on 3 November 2014. It was agreed between Mr Cleary and Comcare’s solicitors that Mr Cleary would provide medical evidence in support of his claimed inability to attend medical appointments in Sydney.

Evidence

Evidence Before The Court

At the conclusion of the Directions Hearing I made the following directions:1by close of business on 17 February 2016, the Respondent is to lodge with the Tribunal and give to the Applicant:(a)a statement of the evidence to be given by each witness intended to be called by the Applicant at the hearing of the dismissal application;(b)copies of all reports, records, and other documents on which the Applicant intends to rely at the hearing of the dismissal application; and(c)a statement of grounds for the application for dismissal;2should the Respondent intend not to call any witnesses to give evidence at the hearing, the Respondent shall notify the Tribunal and the Applicant of this in writing by close of business on 17 February 2016;3should the Respondent intend not to rely on any reports, records or other documents at the hearing, the Respondent shall notify the Tribunal and the Applicant of this in writing by close of business on 17 February 2016;4by close of business on 2 March 2016, the Applicant is to lodge with the Tribunal and give to the Respondent:(a)a statement of the evidence to be given by each witness intended to be called by the Applicant at the hearing of the dismissal application;(b)copies of all reports, records and other documents on which the Applicant intends to rely at the hearing of the dismissal application; and(c)a statement of grounds the Applicant intends to rely on at the hearing 5should the Applicant intend not to call any witnesses to give evidence at the hearing, the Applicant shall notify the Tribunal and the Respondent of this in writing by close of business on 2 March 2016;6should the Applicant intend not to rely on any reports, records or other documents at the hearing the Applicant shall notify the Tribunal and the Respondent of this in writing by close of business on 2 March 2016;7by close of business on 9 March 2016, the Respondent is to lodge with the Tribunal and give to the Applicant any documents in reply.8the matter be listed for a hearing of the dismissal application by telephone on 21 March 2016 at 10am.Mr Cleary’s evidence Mr Cleary said that on 10 November 2015 he was still recovering from the effects of the thyroid operation which he underwent in August 2015 and also suffering from tonsillitis. He was unable to speak. His condition had worsened during the two days following his conversation with Comcare’s Solicitor on 6 November 2016. “Fairly soon” after 10 November 2015 Mr Cleary consulted his general practitioner, Dr Huynh. In February 2016 Mr Cleary consulted a gastroenterologist on referral by Dr Huynh. Some tests were conducted and Mr Cleary is to return for a further consultation in August 2016. Mr Cleary said also that he did not contact Comcare’s Solicitors to arrange a further appointment as he was waiting for advice from Comcare or the Tribunal. He is not receiving further treatment in respect of his thyroid or his gall bladder. Mr Cleary gave evidence that he may never be able to discuss the events which caused his claimed injury with a medical practitioner appointed by Comcare and he is unsure if he will be able, at any time, to attend an assessment arranged by Comcare. He claims that he was bullied in the workplace to such an extent that he is unable to be in the vicinity of an office in which he was employed. For some time Mr Cleary was employed in an office in the Wollongong CBD.

Decision

Reasons for decision

In his written submissions in relation to the dismissal application Mr Cleary argued that he is entitled to have his claim accepted without the need for further assessment on behalf of Comcare. I do not accept this argument. The Tribunal is required to ensure that Comcare, as well as Mr Cleary, is accorded procedural fairness in the conduct of this matter. Mr Cleary has claimed that he suffered, and continues to suffer, a psychological injury arising from his employment. Comcare is entitled to have him assessed in relation to the cause of the condition from which he suffers and the effects of that condition on him at present. To permit this matter to continue in the manner in which it has for almost two years would not be fair to Comcare. Nor would it meet the requirement of the Act that the Tribunal deal with matters quickly. On the evidence before me I cannot be satisfied as to a likely time when the matter would be ready to proceed to a final hearing.CONCLUSION In accordance with subsection 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) the application for review lodged by Mr Cleary on 18 August 2014 will be dismissed by reason of his failure to proceed with the application within a reasonable time.

Ratio Decidendi

Legal Principle Established

The following issues arise for determination.(1)Has Mr Cleary failed to proceed with his application?(2)If so, has he failed to proceed within a reasonable time?(3)If so, should the discretion to dismiss be exercised?CONSIDERATION The objective of the Tribunal is set out in subsection 2A(b) of the AAT Act, which provides, in part:In carrying out its functions, the tribunal must pursue the objective of providing a mechanism of review that …… is fair, just, economical, informal and quick …. . The power to dismiss an application without proceeding to a hearing is one of the means available to the Tribunal to assist in achieving this objective: Berry v Commissioner of Taxation [2015] FCA 1244 at [35]. The need for such expedition as is appropriate is also referred to in subsection 33(1)(b) which provides:the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit Very recently the Federal Court gave detailed consideration to the principles applicable to an application to dismiss under subsection 42A(5) in Charara v Commissioner of Taxation [2016] FCA 451. The Court referred to the following principles which are applicable in this matter.(1)the discretionary power is only enlivened if an applicant fails to proceed with the application and fails to do so “within a reasonable time”;(2)the discretion is to be used “sparingly and as a matter of ‘last resort’;(3)the applicant must be afforded procedural fairness;(4)the explanations and arguments put forward by the applicant are mandatory relevant considerations.Issue 1: Has Mr Cleary failed to proceed with his application? Mr Cleary lodged his application with the Tribunal on 18 August 2014. In that time there has been one preliminary conference with a Conference Registrar. This was the first conference in the Tribunal’s usual process of preparing a matter for final hearing. It was held on 14 October 2014. Since 8 October 2014 Comcare has been endeavouring to arrange for Mr Cleary to be assessed by a psychiatrist for the purposes of this proceeding. In that time three appointments have been made. Mr Cleary is yet to be assessed and his right to continue the proceedings remains suspended in accordance with section 57 of the SRC Act. The delay since November 2014 has been occasioned by Mr Cleary’s failure to attend an appointment for assessment. For reasons to which I shall refer later I am satisfied that Mr Cleary’s health did not prevent his attending an appointment for the entirety of this period. For these reasons I am satisfied that he has failed to proceed with his application.Issue 2: Has Mr Cleary failed to proceed with his application “within a reasonable time”? By letter of 18 August 2014 Mr Cleary was advised that the Tribunal expected that his matter would be finalised within 12 months. This estimate was based on the experience of the Tribunal that matters such as this can reasonably be expected to be finalised within 12 months of lodgement. Apart from Mr Cleary’s failure to attend a medical assessment there is nothing unusual about this matter which would cause me to consider that it should not have been able to proceed to finalisation within the 12 month period.