Conchie and Comcare (Compensation)

[2020] AATA 1791

Conchie and Comcare (Compensation) [2020] AATA 1791 (17 June 2020)

Division:GENERAL DIVISION

File Number(s):2018/2441      

Re:Nathan Conchie  

APPLICANT

ComcareAnd  

RESPONDENT

DECISION

Tribunal:Senior Member D O'Donovan

Date:17 June 2020

Place:Canberra

The applicant’s application for an adjournment is dismissed.

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Senior Member D O'Donovan

Catchwords

PRACTICE AND PROCEDURE – adjournment application made by applicant – applicant’s mental health considered  – medical evidence does not satisfy Tribunal of need to exercise discretion to adjourn hearing – whether the respondent completely altered the nature of its case as contended by the applicant - lack of appreciation of the issues– nature of issues in dispute for some time – no procedural unfairness identified – adequate evidence available to ventilate the issues at hearing – no prejudice to applicant arising – adjournment application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 ss 33, 40

REASONS FOR DECISION

Senior Member D O'Donovan

17 June 2020

INTRODUCTION

1. This matter is listed for hearing next week on 22, 23 and 25 June 2020.

2. On 9 June 2020, the applicant foreshadowed that he was not ready for hearing and on 10 June 2020, the applicant made a formal application to vacate the hearing dates. He does so on two bases:

   (a)The state of the applicant’s mental health is such that the hearing should not proceed; and

   (b)The applicant is not ready to meet the ‘new’ case which the respondent has put forward contesting whether the applicant suffered a work-related injury to his shoulder on 15 June 2011 or at all.

3. The Tribunal has broad discretion under the Administrative Appeals Tribunal Act 1975 (AAT Act)[1] in determining how and when a matter should proceed. But in considering such an application the Tribunal is subject to (at least) two constraints.

   [1] Section 33 and section 40(1)(c) AAT Act

4. First, the President of the Tribunal has issued the General Practice Direction under section 18B of the AAT Act which deals with adjournments. That Practice Direction provides:

   4.41.1We will not grant an application for an adjournment made less than ten working days before the hearing unless there are particular and compelling reasons for the hearing to be adjourned. An application made on the day of a hearing, even when advance notice has been given, will not be granted unless there are exceptional reasons.

5. Second, the Tribunal must ensure that the parties are afforded procedural fairness before any final decision on review is made. If failure to grant an adjournment were to lead to a hearing that was procedurally unfair, such a decision would be unlawful.

6. These principles inform my decision in relation to this matter.

   THE APPLICANT’S HEALTH

7. The applicant has only faintly pressed the argument that the applicant’s health precludes him from giving evidence or providing instructions in relation to his case if the matter were to proceed to hearing next Monday. The submission put is in the following terms:

   In relation to the applicant, he is currently under the care of a psychiatrist in Dubai, hence why I expressed some trepidation about his ability to give evidence. I understand that he will be providing a letter from his treating psychiatrist this week or early next week.

8. In support of this submission the applicant submitted a medical certificate from Dr Deepika Parihar, a psychiatrist working at King’s College Hospital London in Dubai. It is dated 14 June 2020 and states (and I quote in full):

   I saw Nathan in my clinic on 3^rd of May when he presented with symptoms of low mood, feeling very anxious, tearful and poor sleep.

   He had a history of Post traumatic stress disorder and has been taking counselling sessions for a long time.

   He also has issues in his marriage and his wife has left and moved to Australia which has worsened his mental state.

   I have started him on antidepressants and is slowly and gradually recovering but still not completely recovered and might take a few weeks before his mental state is completely stable. I am following him up in my outpatients.

9. While this report suggests that, having regard to his mental state, some sensitivity will be required when the applicant is giving evidence, it falls well short of establishing that the applicant is unable to give evidence or could not reasonably be expected to give evidence and instructions at the upcoming hearing. Indeed, no argument in those terms is pressed.

10. In those circumstances, I am not prepared to grant an adjournment based on the current medical evidence. If a further report is obtained which supports the conclusion that the applicant is not fit to give evidence or not fit to give instructions I expect that the doctor providing the report will be made available for questioning by the respondent and the Tribunal at the scheduled hearing.

    NEW CASE TO MEET

11. The application for an adjournment is pressed on the basis that the respondent’s case has changed in nature and that, in order to meet it, the applicant needs more time to prepare for the hearing.

12. To give this submission proper consideration it is necessary to briefly outline the history of the matter.

13. On 22 June 2016, the Tribunal made a Consent Decision under section 42C of the AAT Act in Tribunal Application 2015/3032. The Decision determined that the applicant was entitled to compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for ‘aggravation of bilateral labral tears and aggravation of bilateral AC joint osteoarthritis’ with a date of injury of 15 June 2011.

14. On 16 August 2017, Comcare made a decision in relation to the calculation of the applicant’s normal weekly earnings (NWE) under the SRC Act. That decision was affirmed on internal review on 3 May 2018.

15. An application for review of that decision was made to the Tribunal on 22 June 2018.

16. The parties filed Statements of Facts, Issues and Contentions. The issues identified by the applicant were:

    (a)The correct date of the injury, pursuant to section 7(4) of the SRC Act;

    (b)What is the calculation of NWE at the date of injury; and

    (c)Should the NWE at the date of injury be adjusted on any subsequent date.

17. The issues identified by the respondent were:

    (a)What is the correct date of injury pursuant to s 7(4) of the Act;

    (b)What are the Applicant’s NWE between the date of injury and 8 March 2015, pursuant to section 8 of the SRC Act.

18. Accordingly, the correct date of injury has always been identified as an issue in the proceedings.

19. The matter was then listed for hearing on 2-3 October 2019.

20. On 10 September 2019, at the Tribunal’s initiative, a directions hearing was held. At that point in time the Tribunal had concerns that the evidence available to the Tribunal was not going to be sufficient to resolve the necessary questions required to determine the applicant’s NWE figure.

21. At that directions hearing the respondent applied to adjourn the hearing to give it an opportunity to obtain further medical evidence in order to challenge the previously accepted date of injury. The hearing listed on 2-3 October 2019 was vacated, The respondent obtained further medical evidence which was filed and served in December 2019 and January 2020. On 12 February 2020, the respondent filed an amended Statement of Facts, Issues and Contentions. The respondent contended that the applicant did not sustain a shoulder injury on 15 June 2011, did not change his duties in 2012 because of any shoulder injury, that there are significant doubts whether he sustained any compensable injury, and in the alternative, if there were a compensable injury, it would have been sustained on 13 December 2013.

22. On 7 April 2020, the applicant lodged a further amended Statement of Facts, Issues and Contentions. The respondent has advised, and it is not contested by the applicant, that the following exchanges took place between the parties.  On 8 April 2020, the respondent wrote to the applicant’s solicitor in the following terms referring to the Statement of Facts, Issues and Contentions it filed:

    You appear to have addressed Comcare’s old statement of facts, issues and contentions…Do you propose to provide a further SFIC which addresses ours of 12 February 2020.

23. Later that day the applicant’s solicitors wrote to the Tribunal and the respondent as follows:

    It appears that the contentions and issues for the applicant SFIC have been drafted in reference by counsel to a previous RSFIC not the more recent version dated 12 February 2020.

    My staff are working with counsel to provide an amended version.

    Please delete all reference to the ASFIC that we served yesterday as it is not relevant to the more recent RSFIC.

24. On 14 April 2020, the applicant filed an amended Statement of Facts, Issues and Contentions. The document re-asserted the applicant’s contention that the injury which resulted in incapacity occurred on 15 June 2011 and periods of incapacity should be based on that calculation.

25. This brief recitation of the history of the matter clearly establishes that the date of the applicant’s injury has been in issue almost since the inception of this matter and has been the clear subject of contest since September 2019.

26. In support of its application for an adjournment the applicant contends:

    On 12 February 2020 the Respondent filed a SFIC which completely altered the nature of its case. In that SFIC the Respondent has taken a ‘Hannaford’ approach and is denying that liability for the shoulder injury should ever have been accepted… In that SFIC the Respondent also resiled from its previous acceptance that the Applicant’s transfer to the Air Marshall was due to his shoulder injury. The RSFIC denies any injury but in the alternative says that the date of injury was 13 December 2013. Which should then be the date used for the calculation of the Applicant NWE. This date would have profound effects on the Applicant’s NWE and would probably result in a substantial overpayment to the Applicant.

    I was asked to draft a Supplementary ASFIC which I did on 14 April 2020. I understand that I was tasked with clarifying the date of injury we relied upon and the NWE per [2] ASSFIC. I had no awareness of the Respondents SFIC of 12 February 2020 and of the manner in which the Respondent’s case had changed. Hence the documents I drafted was not responsive to the Respondent’s new case in its SFIC.

    The changes in the nature of the Respondent’s case are profound. After years of arguing only about the NWE, we are now faced with having to revisit the causation  and liability issues in 2009-2012. We will now need to go back to the treating doctors of that time and obtain reports from them. They will need to attend to give evidence. None of this has been done.

    We were ready to argue the NWE issue based on the accepted liability, but we are not ready to meet this new case from the Respondent. We seek an adjournment of the hearing and that the matter now be returned to case management until the new case is ready for hearing.

27. This submission amounts to an admission of very poor professional standards on the part of those acting for the applicant. A Statement of Facts, Issues and Contentions, by its very nature assists in defining the issues between the parties. It is as close to a pleading as the Tribunal procedures allow for.  To draft and/or file an amended Statement of Facts, Issues and Contentions which pays no regard to the corresponding and recently filed document of your opponent is far below the level of assistance that this Tribunal is entitled to expect from parties and those assisting them in proceedings before it.

28. Two questions then arise: How significant is the prejudice to the applicant arising from this lack of diligence on the part of those who represent him; and should the consequences of it be visited upon the applicant.

29. In relation to the first question, my assessment is that the prejudice to the conduct of the case is far less than the applicant claims. While prior to February 2020 it has not been previously asserted that the applicant suffered no compensable injury, issues about when his symptoms emerged and the circumstances surrounding that emergence have been in issue since at least 2018 as a consequence of the dispute about the date of injury. As a consequence, the Tribunal Documents filed under section 37 and 38AA of the AAT Act are substantial and there are contemporaneous medical notes which cover the contested period. These may not be all of the documents which could conceivably be obtained but it appears from the material available that attempts have been made previously to piece together the history of treatment which the applicant had at the relevant times. Further, the applicant has already filed material which goes to the question of whether his transfer to a more sedentary position in Perth was the consequence of his injury or some other cause (see for example the statement of Senior Sergeant Shane Irving). Accordingly, it cannot plausibly be claimed that the applicant has been taken by surprise or put at a disadvantage by this matter being in issue (even if one ignores that he was put on notice of the issues in February this year).

30. Accordingly, despite the apparent confusion on the part of those representing the applicant as to the scope of the issues in dispute, the available evidence appears to address all of the questions relevant to the proceedings and it is not established that further delay will remedy any specific problem identified by the applicant. This is not surprising given that the date of injury has been in dispute for almost the entire duration of the proceedings.

31. In assessing this question I accept the respondent’s submission that:

    …There is nothing to support the proposition that obtaining further reports from the Applicant’s treating doctors, or hearing oral evidence from them, would provide any further information of assistance. On the contrary, the common experience before the Tribunal is that most treating practitioners recall very little (if anything) of import beyond what they have written down at the time of consultation.   

32. That has certainly been my experience in matters of this kind.

33. In these circumstances, I am not satisfied that the applicant has established any prejudice if the matter were to proceed next week which arises from confusion on the part of his legal representatives about the matters in dispute.

34. That conclusion obviates the need to consider the question of whether the consequences of the applicant’s representatives lack of diligence should be visited on him.

    DECISION

35. Accordingly, I am not satisfied that there are particular or compelling reasons to adjourn the matter, nor do I consider that proceeding with the hearing would result in any breach of the requirements of procedural fairness. In the event that it becomes apparent during the course of the hearing that an adjournment is necessary to ensure that procedural fairness requirements are observed, procedural accommodations can be made at that time.

36. The application for an adjournment is dismissed.

I certify that the preceding 36 (thirty six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D O’Donovan.

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Associate

Dated: 17 June 2020

Date(s) of hearing:	Determined on the papers
Solicitor for the Applicant:	Mr Healey, David Healey Solicitors
Solicitor for the Respondent:	Mr Schofield, Comcare