Clement and Comcare

[2006] AATA 705

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 705

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          A2006/55 & 157

GENERAL ADMINISTRATIVE  DIVISION		)
Re		KRISTINE CLEMENT

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date17 August 2006

PlaceCanberra

Decision The application for stay is not granted.

..............................................

Mr S. Webb, Member

CATCHWORDS

COMPENSATION - stay application - relevant factors - strained financial circumstances - no capacity to repay monies if application unsuccessful - evidence to be tested to ascertain merit - stay not necessary to secure effectiveness of hearing - stay not granted

Safety, Rehabilitation and Compensation Act 1988 ss 16, 19

Administrative Appeals Tribunal Act 1975 s 41

Shi v Migration Institute of Australia & Anor (2003) 134 FCR 326

Civil Aviation Safety Authority v Hotop [2005] FCA 1023

Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 320

Re Seaton and Minister for the Capital Territory (1978) 1 ALD 141

Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246

Re Bailey and Comcare [1995] AATA 10215

Re Commonwealth Banking Corporation and Iannello (1988) 15 ALD 418

Re Repatriation Commission and Delkou (1985) 8 ALD 454

Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380

Re Trewin and Secretary Department of Social Security (1993) 31 ALD 629

Re Artemis and Australian Postal Corporation (1998) 27 AAR 60

REASONS FOR DECISION

17 August 2006 Mr S. Webb, Member         

1.      Kristine Clement has an accepted compensation claim for a psychological injury arising from her employment by the Australian Bureau of Statistics in 1992.  She was paid compensation benefits until September 1994, when her employment ended, and then again from 15 June 2004.  In March 2006 Comcare decided that she had not suffered any compensable incapacity for work following the cessation of her employment in 1994 (A2006/55).  Subsequently, in June 2006, Comcare decided to revoke all compensation decisions that had been made in her favour since September 1994, including payments of compensation for incapacity and medical treatment from June 2004 (A2006/157).

2.      Ms Clement has applied to the Tribunal for review of these decisions and, presently, is seeking orders to stay the operation of the decisions until the review is concluded.

3. The Tribunal’s discretionary power to order a stay is set in subs 41(2) of the Administrative Appeals Tribunal Act 1975.  The section is to be interpreted broadly and given a liberal interpretation for the purpose of securing the effectiveness of the hearing and the determination of the application for review (Shi v Migration Institute of Australia & Anor (2003) 134 FCR 326 at 332; Civil Aviation Safety Authority v Hotop [2005] FCA 1023). Securing the effectiveness of the hearing and the review is tied to securing the processes of the hearing and the review (Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 320). Each application for a s41 stay must be considered in its context. Nevertheless, it may not be appropriate to order a stay if no improvement to the applicant’s position will result (Re Seaton and Minister for the Capital Territory (1978) 1 ALD 141 at 143).

4.      Ms Clement asserts that her position will be improved if a stay is granted.  In the Respondent’s submission if a stay is granted it will be of only marginal benefit to Ms Clement.  I agree.  The decisions under review merely determine or revoke Ms Clement’s compensation entitlements within a specific period and do not have ongoing effect beyond the specified dates.  The continuation of compensation payments would not flow after those dates if the decisions are stayed.  It is for Ms Clement to claim compensation for any successive period or specific treatment and for Comcare to determine any such claim on its merits at the time.

5.      The s41 power relates to the operative decision that is the subject of review (Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246 at 250). In the context of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) the operative decision may encompass the primary and reconsideration decisions in the particular case (Re Bailey and Comcare [1995] AATA 10215 at pp6-7). The Tribunal does not exercise power at large.

6. The first decision under review (dated 17 March 2006) in matter A2006/55 affirmed a primary determination that Ms Clement did not suffer any compensable incapacity for work in the period from 1 September 1994 to 15 June 2004. Staying the operation of this decision will not have any positive effect for Ms Clement. The decision was to reject her claim for payment of compensation pursuant to s19 of the SRC Act (and related sections) on the basis that her claim lacked merit. Interfering with the operation or implementation of the decision will not result in any improvement or amelioration of Ms Clement’s position.

7.      The second decision under review (dated 23 June 2006) in matter A2006/157 revoked all favourable determinations from 1 September 1994 and is confined by its terms.  The revoked determinations are similarly confined.  By those determinations Ms Clement was or would be paid compensation for incapacity during specified periods (see T115, T143, for example), the last of which ends on 24 August 2006.  She was also paid compensation for specific medical treatment expenses.  Staying the implementation of the decision will effectively leave in force the determinations that were revoked.  Thus, payments received by Ms Clement would not presently be recoverable from her and she would be paid compensation for incapacity from 23 June 2006 to 24 August 2006.  Any further payment of compensation would then be subject to claim by Ms Clement pursuant to her accepted injury and to determination by Comcare on the merits.  I accept that staying the operation of the decisions under review would remove the bar they presently represent to favourable determination of subsequent claims.  I understand that Ms Clement has that expectation.  Nonetheless, if the stay she is seeking is granted it would not have prospective effect and would not bind Comcare when determining future claims.  

8.      I note that Comcare stated in the decision dated 23 June 2006 that it would not seek recovery of compensation paid to Ms Clement pending the ultimate resolution of her applications before the Tribunal.  That was reiterated during the stay hearing.  Thus, granting a stay of the implementation of the decision will not improve Ms Clement’s position in that regard.  However, if a stay is granted she will benefit from payment of compensation from 23 June 2006 to 24 August 2006, from which any social security payments in that period will be deducted (she is presently receiving a Newstart Allowance).  Thus it can be seen that granting a stay would only marginally improve Ms Clement’s position for a limited period of time well in advance of any hearing of the substantive issues.

9.      The Tribunal must decide whether “it is desirable to [order a stay] after taking into account the interests of any of the persons who may be affected by the review”.  The word ‘desirable’ connotes a positive aspiration: something worthy of achievement rather than merely advisable (see Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380). When assessing the desirability of the order sought, any hardship likely to be suffered by either party, the likelihood of money being recovered if the applicant is ultimately unsuccessful, and the merit or prospects of success of the substantive application for review should be considered (see Re Commonwealth Banking Corporation and Iannello (1988) 15 ALD 418;  Re Trewin and Secretary Department of Social Security (1993) 31 ALD 629; Re Artemis and Australian Postal Corporation (1998) 27 AAR 60)).

10.     Ms Clement’s interests are that she wants, ultimately, to be compensated from September 1994 as claimed.  Presently, she wants to improve her financial circumstances and to maintain medical treatments during the process of review.  However, if a stay is granted Ms Clement’s position will be improved only marginally and for a short period.

11.     The Respondent’s interests, presumably, are not paying more compensation than it is obliged to, especially if the amount paid may not be recoverable.  Ms Clement conceded that she would be unable to repay any money paid to her if the stay was granted and she did not succeed in her application.

12.     Ms Clement contends that she will experience hardship if a stay is not granted.  She says that she is in financial difficulty and is unable to meet her financial commitments.  She says that she cannot fully and effectively prosecute these proceedings without financial security and she cannot optimally prepare for the hearing in the absence of ongoing psychological and psychiatric treatment, which she cannot presently afford.  She stated that she cannot pay for legal representation and has not paid any legal bills for a number of years.  Ms Clement submitted that even though she would have no capacity to repay any money paid to her if she was ultimately unsuccessful, she has reasonable prospects of success.  In her submission Comcare did not obtain any fresh evidence and acted improperly to revoke her compensation payments in June 2006.  The existing evidence at that time was the basis on which she was awarded compensation in 2004, only 2 years earlier. 

13.     Ms Clement tendered only scant evidence concerning her claims and circumstances in the period from June 2004 to the present and she did not produce bank statements, despite being requested to do so by the Respondent.  Nevertheless, I make the following findings of fact:

(a)Ms Clement and her partner are presently reliant on social security payments for their income.  On the basis of Ms Clement’s oral evidence, their combined fortnightly income so derived is in the vicinity of $900.  Ms Clement is in receipt of a Newstart Allowance and estimated that she receives $300 per fortnight.  Ms Clement estimated that she earns approximately $15 per week delivering pamphlets.  Prior to the revocation decision she was paid approximately $780 per week compensation benefits.  Social security payments will be deducted from compensation payments if a stay is granted.

(b)Ms Clement has two current debts: a $600 veterinary account for treatment of a stray cat for which she is liable, and $300 owing on a credit card.  She has no other debts.

(c)Ms Clement resides with her partner in a house that is the property of her daughter and son-in-law.  On her oral evidence they pay $200 per week in rent (I note there is a conflict between her oral evidence and a lease agreement document which specifies the rent payable as $250 per week).  That arrangement was struck on the expectation that her compensation payments would be ongoing.  In her present circumstances she and her partner struggle to pay the rent.  Nevertheless Ms Clement accepted that she would not be forced to move into cheaper accommodation if a stay is not granted.

(d)Ms Clement has no assets of substantial value.  Her partner owns two aging cars which Ms Clement is able to drive.

(e)Ms Clement says that she consults her psychologist once or twice each month and consults her psychiatrist every three months or so.  No evidence was adduced concerning these consultations or appointments, or the net cost to Ms Clement of such treatment.  No medical evidence was adduced concerning the likely effect on her health or on her ability to prepare for the hearing of a reduction or cessation of treatment.  I note that her compensable injury was of a psychological nature and occurred in 1992.  It is not clear what effect a reduction in the level of treatment may have on her condition and her ability to prepare for hearing.  Nevertheless, she presently has only a limited capacity to pay for treatment. 

(f)Ms Clement retains the legal services of Mr David Lander, and has done so for a number of years.  I understand that she has not received or paid an account for Mr Lander’s services during the period of his engagement.  The arrangements for service between Mr Lander and Ms Clement are not transparent on the materials tendered.  However, I understand that the arrangement is ongoing.

(g)Ms Clement’s claims concerning improper practice by Comcare in relation to the revocation decision must be tested against the evidence.  No relevant evidence was tendered by Ms Clement to corroborate her claims for the purpose of her stay application.

14.     Considering Ms Clement’s circumstances I accept that she is in straitened financial circumstances.  However, her circumstances are not dire or extreme, and her case for a stay on that basis is not strong or compelling.  Even if the operative decisions were stayed from implementation, little improvement to Ms Clement’s position would result.  Furthermore, the s41 power is not directed to relief of hardship alone but is for the purpose of securing the effectiveness (and processes) of the hearing and the review that is on foot.  I am not persuaded that granting a stay as requested will serve that purpose.

15.     The substantive reviews will address issues of a medical nature, concerning the continuing effects (if any) of Ms Clement’s compensable injury, and issues concerning the circumstances in which her employment by the Australian Bureau of Statistics ended in 1994.  A significant body of historical material concerning both issues has been filed in the Tribunal.  Nonetheless it can be expected that the parties will obtain contemporary medical opinion.  In the circumstances Ms Clement may experience difficulty paying for expert medical opinion.  That difficulty weighs in favour of a stay.  I note that Comcare agreed to assist Ms Clement by paying for a report by Dr Tym.   While that offer may be of assistance to Ms Clement, it is for her and Mr Lander to decide whether and from whom she will obtain expert medical opinion.

16.     As I have said, it is unclear what effect, if any, a reduction in Ms Clement’s level of psychological and psychiatric treatment may have on her ability to fully participate in review processes.  There is no evidence on this point.  The evidence is that Ms Clement is strongly focused on the compensation process.  She is legally represented.  If a stay is granted Ms Clement may be more able to pay for treatment while compensation payments continue to 24 August 2006, but she would face similar financial difficulties as now thereafter.  It is not likely that such minimal additional treatment will secure the effectiveness of the hearing and review processes.  There is no compelling evidence before me that it would.

17.     Submissions were made by the parties in relation to the merit of Ms Clement’s applications.  There are questions about the extent to which her compensable injury contributes to her past and present psychological condition and any related incapacity or medical treatment expenses.  Those questions must be tested on the medical evidence over time.  Furthermore the circumstances in which her Commonwealth employment ended are controversial.  Those circumstances may be potent factors when assessing the quantum of any entitlement to incapacity payments.  The Tribunal may take such matters into account when assessing the amount Ms Clement is able to earn in employment.  It is not appropriate to conduct a preliminary trial of the issues and evidence for present purposes (Re Repatriation Commission and Delkou (1985) 8 ALD 454 at 462). Nevertheless there are real questions concerning Ms Clement’s prospects for success.

18.     On balance, weighing the interests of the parties and notwithstanding the difficulties Ms Clement may face as a result of her financial circumstances, I am satisfied that it is not desirable to order a stay of the operation or implementation of the decisions under review. 

19.     Considering all the circumstances and interests, I am not persuaded that it is desirable to grant a stay, even if a stay would mean that Ms Clement would obtain compensation to the date of hearing.  Ms Clement’s case is not strong and she has not tendered any compelling evidence that improvement of her position by continuing compensation payments will secure the effectiveness of the hearing and the review.   That is particularly so given the history of these matters and the specific character of the determinations in issue.

20.     That being so, the application for stay is not granted.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:         Peter Edwards                 .....................................................................................
  Associate

Date of Hearing  7 August 2006
Date of Decision  August 2006
Solicitor for the Applicant             Mr David Lander
Solicitor for the Respondent        Mr Peter Woulfe