Cleary and Comcare (Compensation)

[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 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.

8. 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.

9. 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.

10. On 15 October 2014 the Tribunal held a first telephone conference with Mr Cleary and Comcare’s representative.

11. 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.

12. Comcare cancelled the appointment with Dr Rees in order to avoid incurring a fee for Mr Cleary’s non-attendance.

13. On 17 November 2014 Comcare’s Solicitors wrote to Mr Cleary advising him that they had not received any further medical evidence from him.

14. Mr Ward provided a report dated 24 November 2014. It read in part:

    Gary was originally referred to me under a Mental Health Care Plan by Dr V De La Cruz. Gary was referred to me to assist him with his conditions of depression and anxiety. Gary completed 5 counselling appointments with me between the 14.10.13 to the 16.12.13.

    …

    During our appointments Gary had mentioned that he had been trying to attend a Psychiatrist to obtain a diagnosis of his issues which would not only help him but could then assist him with other matters such as Centrelink. Due to Gary’s feelings of anxiety he was not able to attend the Psychiatrist; despite the importance to him. Gary now informs me that he had to attend a Psychiatrist appointment as a part of his Administrative Appeals Tribunal matters which he was not able to attend due to his anxiety. As noted above Garry’s [sic] anxiety has restricted him from attending appointments previously and I would ask for your consideration in the matter with Garry [sic].

15. On 18 December 2014, at the request of Comcare’s solicitors, I held a telephone Directions Hearing attended by Mr Cleary and Comcare’s Solicitor to discuss Mr Cleary’s failure to attend the medical appointment.  Mr Cleary informed me of the following:

    ·he suffered from agoraphobia and was unable to leave his home for “more than 5-10 minutes max”;

    ·he was not being treated by a psychiatrist;

    ·he last spoke to his psychologist, Mr Ward, “briefly” about two months previously;

    ·he last received treatment by Mr Ward about 10 months previously;

    ·he had been referred to a clinical psychologist but had not proceeded with this referral.

16. During the conference I advised Mr Cleary that Mr Ward’s report did not adequately address the reasons for his inability to attend a medical appointment with a psychiatrist.  When I asked him if he would be able to attend such an appointment in Wollongong he told me that he was “not sure.”

17. At the conclusion of the Directions Hearing I made the following directions:

    1On or before 30 January 2015, Mr Cleary is to give to the Tribunal and to the Respondent:

    (a)A written statement by Mr Cleary setting out the grounds on which he states that he has a reasonable excuse for not attending a medical examination;

    (b)Any further medical evidence on which Mr Cleary intends to rely in support of the contention that he has a reasonable excuse for refusing or failing to attend an examination.

    Mr Cleary was provided with a copy of the directions.

18. By letter of 13 February 2015 Comcare’s solicitors advised Mr Cleary, in part:

    Shortly prior to 30 January 2015 you wrote a letter to Comcare’s legal representatives setting out the basis for your refusal or failure to attend the appointment as required under the Notice. You described symptoms of anxiety, amongst others, which you claimed prevented you, on occasions, from leaving your home at all or, on those occasions when you felt able to leave home, in travelling any substantial distance from it.

    You indicated that you considered that you suffered from “undiagnosed agoraphobia”. You said the symptoms of anxiety and dizziness manifest themselves when you walk for 30m from your home. You also claimed to meet the criteria for PTSD. You did not supply any medical support for the existence of either condition, nor for the contention that such conditions would and did preclude you from attendance in accordance with the Notice.

    I am required to consider whether the reasons for your refusal or failure to attend as required by the Notice constitute “reasonable excuse”.

    You have not supplied any medical evidence to Comcare, either as recently as directed, or within the past 12 months or more as to the existence of the claimed psychological condition, and if it exists, any symptoms of it which might support the contention that you are precluded from travel in the way claimed. You have, however, previously indicated that you are able to travel to your local General Practitioner, GP as the surgery is close to your home. Nevertheless, no medical support for your refusal or failure to attend for examination as required by the Notice has apparently been obtained by you from or through your GP, nor from the psychologist you indicated you had been attending upon at the same medical practice.

    You have offered no reason for not attending your GP, or your psychologist, for treatment or assessment, with the exception, in the latter case, of the limitations of the Medicare Mental Health Care Plan which restrict your resort to Medicare funded psychological care to 5 visits per annum. It is noted that in your letter you suggest you have only used four such appointments. Why you have not attended your psychologist for treatment or assessment in relation to those symptoms you say precluded you from travel to the appointment is unclear.

    Your letter also refers to two other medical conditions. The existence of the first condition of diabetes is not supported by any medical evidence. Whilst it may be accepted that you may have been previously diagnosed with this condition, there is no evidence that it precludes you from travel such as to constitute a reasonable excuse for refusal or failure to attend under the Notice.

    The existence of the second condition, gallstones, is supported by a note from you surgeon, Dr Robinson, indicating your attendance at his rooms on 1 December 2014 and a recommendation from the doctor in relation to laparoscopic cholecystectomy and cholangiogram at some future time. It is not suggested that the condition precludes you from travel nor that it did so on the occasion of the appointment.

    In the above circumstance I do not consider that you have supplied a reasonable excuse for your refusal or failure to attend the medical examination arranged for you by the legal representative engaged by Comcare. As a consequence of this, by operation of section 57(2) of the SRC Act, your “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”.

    Please note the SRC Act does not allow you to request a reconsideration of this determination by Comcare. However, you may make an application to the Federal Court to challenge this decision under the Administrative Decisions (Judicial Review) Act 1997 (ADJR Act). You may wish to seek legal advice regarding making an application to the Federal Court.

    Mr Cleary did not seek to challenge Comcare’s decision.

19. I held a second telephone Directions Hearing on 25 February 2015. Mr Cleary informed me that he had been diagnosed as suffering from gallstones a couple of days prior to the appointment with Dr Rees but after he had advised Comcare’s Solicitors that he was unable to attend the appointment. He was scheduled to undergo surgery to remove the stones on 12 March 2015. He was able to travel up to 5km from his home to see his general practitioner and specialists in relation to this condition.

20. During the Directions Hearing the solicitors for Comcare informed Mr Cleary and the Tribunal that they were willing to make an appointment for him to be assessed by a psychiatrist in Wollongong after he had recovered from surgery. I encouraged Mr Cleary to attend this appointment if he was able and asked him to advise the Tribunal when he had recovered and was fit enough to attend the appointment. I further informed him that if he claimed to be unable to attend the appointment he should provide medical evidence to support this.

21. At the conclusion of the Directions Hearing I advised Mr Cleary that until he attended an examination his right to continue with the application was suspended by the operation of section 57 of the Safety, Rehabilitation and Compensation Act.

22. On 12 May 2015 the solicitors for Comcare advised that they had not been contacted by Mr Cleary since the Directions Hearing and that in the absence of advice from him they proposed to cancel an appointment for his assessment in Wollongong on 26 May 2015.

23. On 15 May 2015 Mr Cleary advised the Tribunal that he would be unable to attend for a medical examination for the next 6-8 weeks as there had been complications with his surgery in March 2015. The Tribunal informed Comcare’s solicitors of this. They advised that they would not make a further appointment until Mr Cleary informed them that he was fit to attend.

24. On 9 July 2015 the Tribunal contacted Mr Cleary to ascertain whether he was fit to proceed with an examination. He advised that he had abdominal surgery the previous week and that he required further surgery (for an unrelated condition) in August or September 2015. He stated that he would not be able to attend a medical appointment until he recovered from this further surgery.

25. On 14 July 2015 Mr Cleary provided a certificate from his general practitioner which stated:

    Mr Gary John Cleary underwent abdominal surgery on the Friday the 3^rd of July.  Post-operative recovery time is expected to be 4-6 weeks.  It is expected that Gary should be able to go for tribunal hearing after 6 weeks, unless his thyroid surgery is imminent, in which case he will require surgical planning and undergo surgery, which would put tribunal back further.

26. On 17 July 2015 the Tribunal advised that he would be called again at the end of August 2015 to ascertain his position at that time.

27. On 8 September 2015 the Tribunal telephoned Mr Cleary to inquire as to the state of his health.  The note of that conversation is as follows:

    I contacted Mr Cleary today and he advised that he is currently in the process of recovering from surgery. He has a follow up appointment with his surgeon on 18 September 2015, however, Mr Cleary indicated that he should be fit to attend an appointment from the week beginning 28 September. Mr Cleary expressed his preference for an appointment in the morning. Later appointments cause greater difficulty. As canvassed at previous directions hearings, Mr Cleary states that he has great difficulty travelling to Sydney and requests an appointment in the Illawarra region.

28. On 29 September 2015 the Solicitors for Comcare wrote to Mr Cleary as follows:

    We refer to the above application.

    We have made an appointment for you to be examined by Dr Geoff McDonald, psychiatrist. Details of the appointment are as follows:

    Tuesday 10 November 2015 at 9:00am
    Mlcoa New South Wales
    Level 4, 166 Keira Street
    WOLLONGONG NSW 2500

    Please notify us as soon as possible if you are unable to attend this medical appointment. We advise that the medical practitioner may charge additional fees in the event of:

    ·Your failure to attend the medical appointment; or

    ·Late cancellation of the medical appointment, that is, within 7 days of the appointment date.

    We will seek these fees from you.

    Should you require any further information, please do not hesitate to contact me on the number below.

29. On Friday 6 November 2015 the Solicitor for Comcare telephoned Mr Cleary to remind him of the appointment for the following Tuesday.  Mr Cleary advised that he would attend the appointment. During this conversation Mr Cleary exhibited no impediment in his speech.

30. Mr Cleary did not attend the appointment on 10 November 2015 nor did he advise the Solicitors for Comcare that he would not be attending.

31. On 8 December 2015 the solicitors for Comcare wrote to Mr Cleary noting that they had not heard from him in relation to the missed appointment.  They advised him:

    This is the second failure in the course of this matter and unless we are advised within 7 days of a reason for you failure to attend a scheduled medical appointment, which we regard as having any satisfactory basis, we propose to approach the Tribunal to seek orders that this matter be dismissed pursuant to s 42B(1)(b).

32. By email of 15 December 2015 Mr Cleary responded:

    Since my thyroid was removed, I had been experiencing excessive fatigue, and difficulty staying awake.

    As a consequence, my thyroid medication was changed to endeavour to stabilise bodily functions previously regulated by the thyroid.

    The thyroid gland that was removed weighed 237g, the size of an avocado, whereas average size is 10-20g.

    As my throat has been rearranging after years of compression, it has been tightening. This causes tonsillitis and renders speaking difficult, and I am unable to undertake any conversation at length.

    On the day of my scheduled assessment, I was unable to speak, and not capacitated to travel or undertake an hour assessment.

    Post surgical pathology showed by blood count is low, and I am awaiting Pathology results to ascertain the cause of ongoing incapacitating fatigue and anaemia.

    I have a letter from my throat Specialist to confirm the surgery and the period of time over which it had impacted on my health.

    I can email it to you if you require.

    I have not rung this response to your letter as talking is uncomfortable

33. A third telephone Directions Hearing was held on 2 February 2016.  At the hearing Mr Cleary advised that he failed to attend the medical appointment on 10 November 2015 as he was still recovering from the effects of the thyroid surgery.

34. 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

1. 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.

2. “Fairly soon” after 10 November 2015 Mr Cleary consulted his general practitioner, Dr Huynh.

3. 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.

4. 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.

5. 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.

6. Mr Cleary has attended Wollongong Hospital which is in the immediate vicinity of his former workplace on two or three occasions recently.

   Ms Stainthorpe’s evidence

7. Ms Stainthorpe is Mr Cleary’s sister and has assisted in his care since 2012. She assists him with shopping and domestic duties and on occasions attends medical appointments with him.

8. On some occasions when Ms Stainthorpe has driven Mr Cleary to the local supermarket he has been unable to leave the car and has become distressed and asked to be taken home. His anxiety can be triggered without notice. She observed what she described as a “panic attack” in August 2013 when she attended his home to take him to a work assessment meeting.

9. Ms Stainthorpe has taken Mr Cleary to the Wollongong Hospital, situated in the CBD, on several occasions in the last 12 months for treatment and to consult specialists. The Hospital is not in the same street as the Australian Taxation Office.

10. When asked whether she had observed Mr Cleary having any difficulty speaking at any time during November 2015, Ms Stainthorpe said that he suffers a “nervous condition” which causes him to have difficulty talking.

    ISSUES FOR DETERMINATION

11. 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

12. 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 …. .

13. 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

14. 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.

15. 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?

16. 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.

17. 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.

18. 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”?

19. 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.

20. Clearly there have been periods during which Mr Cleary’s health problems and convalescence from surgery would have prevented his attending an appointment.  However time for treatment and recovery has been taken into account in the scheduling of appointments. 

21. On 8 September 2015 Mr Cleary advised that he would be fit to attend an appointment after 28 September 2015. On this basis an appointment was made for 10 November 2015, allowing ample time for his recovery from the medical conditions for which he was being treated. Mr Cleary did not advise Comcare’s solicitors or the Tribunal of his inability to attend on medical grounds prior to the appointment. Further he did not advise the solicitors or the Tribunal of his availability to attend at a later time. Seven months have elapsed since the last appointment.

22. In these circumstances I am satisfied that Mr Cleary has had more than a reasonable time to proceed with his application and has not done so. I find that he has failed to proceed with his application “within a reasonable time”.

    Issue 3:  Should the discretion to dismiss the application be exercised?

23. Mr Cleary’s explanations for his inability to attend a medical assessment have varied.

24. Initially he said that he could not attend an appointment in the Sydney CBD by reason of the Tax Office at which he worked being in the vicinity. When an appointment was made for an assessment in the Illawarra region (as Mr Cleary requested), Mr Cleary did not indicate to the Tribunal or to the solicitors that he had a psychological problem which prevented his attending. This was still the situation only four days before he was due to attend the appointment. He later claimed he could not attend because of the effects of his surgery rather than his having any difficulty attending the Wollongong CBD. Earlier, in May 2015 Mr Cleary advised the Tribunal that his physical conditions would prevent his attendance for a period of 6-8 weeks. He did not mention any psychological problems which would prevent his attendance.

25. Despite the requests made to Mr Cleary and the Tribunal’s directions of 18 December 2014 and 2 February 2016, Mr Cleary has not provided medical evidence which adequately supports his claims in relation to agoraphobia and/or a psychological aversion to attending in the vicinity of his former employer’s offices.   

26. The report of Mr Ward, Mr Cleary’s psychologist, refers only to his suffering anxiety in relation to proposed appointments and asks for the Tribunal’s “consideration” in this regard. The report makes no mention of Mr Cleary suffering agoraphobia or other psychological conditions.

27. In his certificate dated 13 July 2015, Dr Huynh refers only to the restrictions arising from Mr Cleary’s surgery. He does not refer to a psychological condition preventing his attendance in certain localities or of agoraphobia.

28. Ms Stainthorpe endeavoured to support her brother and expressed her opinions as to the cause of his psychological conditions. However, based on her evidence I am satisfied that she accompanied Mr Cleary to several medical appointments in the Wollongong CBD during the past year. 

29. Taking into account all of the evidence I am not satisfied that Mr Cleary’s claimed aversion to being in the vicinity of his former workplaces is a reasonable excuse or his refusal to attend an appointment in Wollongong. His need to recover from surgery was a reasonable excuse for his non-attendance but adequate allowance has been made for this requirement.

30. Mr Cleary’s evidence at the hearing leads me to the conclusion that it is unlikely that he will attend any further appointments arranged on behalf of Comcare. He said that he still suffers from lethargy and that “I am not sure if I could ever go for assessment”.  He could not give an assurance that he would be able to discuss the events giving rise to his claim with a psychiatrist appointed by Comcare.

31. 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

32. 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.

I certify that the preceding 66 (sixty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.

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

Associate

Dated 17 June 2016

Date of hearing	21 March 2016
Date final submissions received	21 March 2016
Applicant	In person
Counsel for the Respondent	Michael Snell
Solicitors for the Respondent	Lehmann Snell Lawyers