De Tarle and Comcare (Compensation)

[2016] AATA 409

De Tarle and Comcare (Compensation) [2016] AATA 409 (14 April 2016)

Division	GENERAL DIVISION
File Number	2015/0316
Re	Benoit De Tarle
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	14 April 2016
Date of written reasons	21 June 2016
Place	Sydney

In accordance with subsection 42A(9) of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal refuses Mr de Tarle’s application for reinstatement.

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

J W Constance
Deputy President

CATCHWORDS

REINSTATEMENT - workers compensation matter - whether application should be reinstated – where application dismissed by reason of the Applicant’s failure to appear at a directions hearing by telephone - where Applicant failed to attend medical appointments – application for reinstatement refused.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 42A(2),(7),(9)

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

WRITTEN REASONS FOR DECISION GIVEN ORALLY ON 14 APRIL 2016.

Deputy President J W Constance

21 June 2016

INTRODUCTION

1. In January 2015 Mr de Tarle applied to the Tribunal to review a decision by Comcare which denied liability to compensate him for an aggravation of a psychological condition. He claims that his condition was aggravated in 2012 by his employment by the Australian Securities and Investment Commission.

2. In June 2015 the Tribunal dismissed Mr de Tarle’s application without proceeding to a hearing as a result of his failure, on two occasions, to appear at a telephone directions hearing in respect of his application.

3. Mr de Tarle then applied to have his application reinstated. For reasons which I shall set out later in these reasons I adjourned the application part-heard.

4. On 14 April 2016, after a resumed hearing I dismissed Mr de Tarle’s application for re-instatement of his original application. At the time I gave my reasons for doing so orally.

5. At the request of Mr de Tarle I now provide my reasons in writing.

   BACKGROUND

6. The relevant events following Mr de Tarle’s filing of his original application for review are as follows:

   ·7 April 2015 – Comcare’s Solicitors wrote to Mr de Tarle and informed him of a medical appointment which had been arranged for his assessment by Dr George, a psychiatrist, on 5 May 2015. Mr de Tarle failed to attend this appointment and failed to inform the Solicitors of his inability to attend in advance of the appointment;

   ·11 May 2015 – Mr de Tarle was informed of a further appointment with Dr George which was arranged for 2 June 2015;  he was requested to advise the solicitors if he was unable to attend;

   ·after further emails on 11 May 2015 Mr de Tarle was again asked by the Solicitors to advise whether he intended to attend the appointment;

   ·13 May 2015 - a notice was forwarded by the Tribunal to Mr de Tarle advising him that a telephone directions hearing had been listed for 26 May 2015; the matter was listed on this occasion at the request of the Solicitors to clarify whether Mr de Tarle would attend the medical appointment arranged for 2 June 2015;

   ·21 May 2015 – the District Registrar sent an email to Mr de Tarle confirming that the matter has been listed for 26 May 2015 to discuss his attendance at the forthcoming medical appointment; the email also addressed concerns expressed by Mr de Tarle as to the possible release of his confidential medical records;

   ·at some time prior to 26 May 2015 the Solicitors issued to Mr de Tarle a notice in accordance with section 57 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) requiring him to attend the appointment with the Dr George;

   ·26 May 2015 – Mr de Tarle did not appear at the telephone directions hearing nor did he provide to the Tribunal reasons for his non-attendance; the Solicitors informed the Tribunal that Mr de Tarle had not responded to their request for advice as to whether he was willing to attend the appointment;

   ·26 May 2015  - the Tribunal notified Mr de Tarle by email that a further telephone directions hearing had been listed for 1 June 2015 at 4.30pm; the notice included a statement that “Failure of the Applicant to appear at the directions hearing, by telephone, may result in dismissal of the application in accordance with section 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth)”;

   ·29 May 2015 – Mr de Tarle sent an email to the Tribunal advising that he was required to attend an assessment at 2pm on 1 June 2015 and that he was “uncertain” if he would be able to appear at the hearing; despite having been previously requested by the District Registrar to forward correspondence to the Registry mailbox, Mr de Tarle persisted in emailing his correspondence to another mailbox which delayed the email coming to the attention of my Associate;

   ·on receipt of the email on 1 June 2015 my Associate sought confirmation from the Solicitors that the assessment was for 2 June 2015 and not 1 June 2015;

   ·1 June 2015 (1.45pm) -  the Solicitors emailed Mr de Tarle confirming that his medical appointment was scheduled for 2 June 2015 as he had been advised on 11 May 2015;

   ·1 June 2015 (4.50pm) – Mr de Tarle’s application was dismissed by reason of his failure to attend the telephone directions hearing;

   ·1 June 2015 (5.12pm) – Mr de Tarle was advised by email that his application had been dismissed but that unless he was advised otherwise by Comcare he should attend the appointment arranged for the following day;

   ·1 June 2015 – the Tribunal wrote to Mr de Tarle enclosing a copy of the order dismissing his application and advising him that he could apply to have his application re-instated;

   ·26 June 2015 – Mr de Tarle applied to have the application re-instated;  

   ·30 June 2015 – the Tribunal wrote to the Solicitors requesting that it be advised whether Comcare opposed the application for re-instatement;

   ·8 July 2015 – the Solicitors wrote to Mr de Tarle and to the Tribunal; the letter included the following:

   So that the Respondent can properly consider whether or not to opposes [sic] the reinstatement application we seek an explanation from Mr de Tarle as to why he failed to attend the directions hearings on 26 May 2015 and 1 June 2015. We also require an assurance from Mr de Tarle that in the event the AAT application is reinstated he will attend an examination with a psychiatrist arranged on behalf of the Respondent in accordance with s 57 of the Safety, Rehabilitation and Compensation Act 1988.

   ·10 July 2015 – the Tribunal issued the following direction to Mr de Tarle:

   IT IS DIRECTED that, by close of business on 24 July 2015, Mr de Tarle is to give to the Tribunal and to the Respondent a statement of the grounds on which his application for re-instatement is based.

   ·24 July 2015 – Mr de Tarle advised the Solicitors and the Tribunal that:

   The grounds for re-instatement are based on my inability to attend the hearing at 4.30 because of an assessment I needed to attend at 2pm.

   ·3 August 2015 – the Solicitors requested Mr de Tarle to provide a copy of the notice requiring that he attend an assessment on 1 June 2015;

   ·14 August 2015 – Mr de Tarle was advised that his application for re-instatement had been listed for hearing by telephone at 8.30am on 25 August 2015;

   ·25 August 2015 – the hearing of the re-instatement was held; Mr de Tarle and the Solicitor for Comcare attended by telephone.

7. At the hearing, Mr de Tarle could not recall why he did not appear at the Telephone Directions Hearing on 26 May 2015. He did recall having received the notice of the hearing.

8. Mr de Tarle stated that he did not appear at the hearing on 1 June 2015 because he had another appointment. He was not prepared to state the nature of that appointment in the presence of Comcare’s Solicitor. At the suggestion of the Solicitor and with her agreement, I heard Mr de Tarle in a closed session in the absence of any representative of Comcare. Having heard that evidence I was satisfied that Mr de Tarle had a reasonable excuse for not attending the Directions Hearing on 1 June 2015. However, I was not satisfied that there was any reason why Mr de Tarle could not have informed the Solicitors and the Tribunal of his inability to attend prior to the Directions Hearing. I was not satisfied that Mr de Tarle had a reasonable excuse for failing to attend the Directions Hearing on 26 May 2015

9. The hearing then resumed in the presence of the Solicitor for Comcare. The Solicitor informed Mr de Tarle and the Tribunal that the appointment which had been arranged for 2 June 2015 had been cancelled by Dr George by reason of his ill health. However, a new appointment had been made with another psychiatrist, Dr Champion, for 7 September 2015. 

10. During the hearing Mr de Tarle expressed concern that his private medical information would be publicly available. He was concerned also that he had been unable to access his medical records produced to the Tribunal on summons, although he was unable to indicate why he believed this was so. Mr de Tarle also stated that Comcare had denied him access to documents he had requested on a number of occasions.

    THE RELEVANT PROVISIONS OF THE ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 (CTH)

11. Subsection 42A(2) provides:

    Dismissal if party fails to appear

    (2)If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:

    (a)if the person who failed to appear is the applicant—dismiss the application without proceeding to review the decision; or

    (b)in any other case—direct that the person who failed to appear shall cease to be a party to the proceeding.

12. Subsection 42A( 7) provides:

    Dismissal if party fails to appear—giving of appropriate notice

    (7)  Before exercising its powers under subsection (2), the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear of the time and place of the directions hearing, alternative dispute resolution process or hearing, as the case may be.

13. Subsection 42A(9) provides:

    (9)  If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

    CONSIDERATION

14. On the basis of the Tribunal’s records and the evidence of Mr de Tarle, I am satisfied that he received proper notice of the Directions Hearing held on 1 June 2015.

15. During the hearing I asked Mr de Tarle on several occasions whether he was prepared to attend the appointment with Dr Champion on 7 September 2015. I explained to Mr de Tarle that he would not be required to attend if he had a reasonable excuse not to do so, but that I was considering refusing his application for reinstatement unless he was prepared to attend the appointment. He did not indicate that he would attend.

16. Further, I am satisfied that the reasons advanced by Mr de Tarle for his reluctance to attend the appointment were not reasonable. My reasons for this conclusion appear in the following three paragraphs.

17. On several occasions, I explained to Mr de Tarle that information provided to Comcare in the form of a medical report by Dr Champion would not be publicly available and that if appropriate, the Tribunal would make an order restricting publication of that material.

18. I am satisfied that Mr de Tarle’s claim that Comcare had not provided him with documents he had requested was inaccurate. He agreed that he had been provided with an electronic record of Comcare’s file held in relation to his claim, excluding information subject to legal professional privilege.

19. Mr de Tarle had been granted access to his medical reports produced to the Tribunal on summons. He had been offered the opportunity to inspect the documents at a venue acceptable to him.

20. Having heard the arguments raised by Mr de Tarle in support of his application for reinstatement (including his reasons for failing to indicate that he would attend a further medical appointment arranged on behalf of Comcare) I informed him that unless there was anything further he wished to add, I did not propose to reinstate the matter as I was not satisfied that it could proceed in a proper manner and that it was not fair to Comcare to reinstate proceedings and that they then not proceed quickly to finalisation. Mr de Tarle then terminated the telephone connection to the hearing room. An attempt to re-establish contact with Mr de Tarle was unsuccessful.

21. In view of the abrupt manner in which the contact with Mr de Tarle was terminated I did not make a final order refusing the application for reinstatement at the conclusion of the hearing. I informed the Solicitor that if Mr de Tarle did attend the appointment with Dr Champion I would be inclined to reinstate proceedings. I then adjourned the application for reinstatement.

22. At 4:09pm on 25 August 2015 Mr de Tarle sent an email to Comcare and the Solicitors reiterating his concerns as to the public disclosure of his medical information and requesting copies of documents which the Solicitors intended to make available to Dr Champion.

23. By email of 26 August 2015 the Solicitors informed Mr de Tarle as follows:

    1.    Dr Champion is an experienced psychiatrist who has given evidence in the Tribunal on many occasions and who has been accepted by the Tribunal as an independent medical specialist.

    2.    Comcare consents to appropriate directions being made by the Tribunal to address your concerns about the use of your private information and I note that Deputy President Constance spoke to you about this at the directions hearing yesterday.

    3.    Comcare undertakes to provide you, or your medical adviser, with a copy of the report of Dr Champion within 2 weeks of receiving that report.

    4.    When we send you a copy of the report of Dr Champion we will also send you a copy of the letter and information that we sent to Dr Champion.

    5.    It is not necessary for you to take reports to the appointment with Dr Champion.

    6. Comcare is not suggesting that it has the power to suspend the AAT proceedings but draws to your attention s 57(2) of the Safety, Rehabilitation and Compensation Act, 1988 which provides:

    ‘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’

    Please note that Comcare continues to require you to undergo the examination by Dr Champion on 7 September 2015 at 11.00am.

24. On 27 August 2015 Mr de Tarle requested the Tribunal to provide him with “a list of the medical specialists which have been accepted as independent by the Tribunal for my own consultation.” In response, Mr de Tarle was advised by the Tribunal:

    With regard to the evidence of Dr Champion, medical specialists frequently give evidence in the Tribunal. The Tribunal does not have a list of medical specialists which are accepted as independent. The evidence of each doctor, and the weight which that evidence should be given, is assessed by the Tribunal member hearing the matter on a case by case basis.

    He also expressed concern that Comcare may suspend the Tribunal proceedings without authority.

25. On 31 August 2015 the Tribunal sent an email to Mr de Tarle in the following terms:

    Thank you for your email dated 27 August 2015.

    As stated by the Tribunal at the Interlocutory Hearing on 25 August 2015, failure to attend an appointment, without reasonable excuse, may result in suspension of the proceedings by virtue of the operation of subsection 57(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth). Section 57 provides in part:

    "(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 suspension of proceedings occurs by force of this section of the Act.

26. Mr de Tarle did not attend the appointment with Dr Champion. On 7 September 2015 the Solicitors wrote to Mr de Tarle requesting that he outline his reasons for failing to attend the appointment.

27. On 14 September 2015 Mr de Tarle wrote to the Tribunal requesting information as to the manner in which he could obtain a statutory declaration from a third-party in relation to his matter.

28. On 18 September 2015 the District Registrar, wrote to Mr de Tarle advising him that he could request documents from a third party that he considered relevant by way of a summons to produce documents. He was provided with a form of summons and information sheets concerning the procedure. He was advised that the Tribunal did not have the power to compel a third-party to provide a witness statement or statutory declaration.

    The resumed hearing of the application for reinstatement

29. The application for reinstatement was listed for further hearing on 14 April 2016.  Mr de Tarle and the Solicitor for Comcare attended by telephone.

30. Mr de Tarle claimed that the appointment with Dr Champion was made in respect of a back injury for which he had not made a claim. However, when asked, Mr de Tarle said that he was aware that Dr Champion is a psychiatrist.

    CONCLUSION

31. Having given Mr de Tarle a further opportunity to explain why he did not attend the appointment with Dr Champion on 7 September 2015, I was satisfied that he did not have a reasonable excuse for his failure to do so. I was satisfied further that it was unlikely that he would attend an examination by a psychiatrist arranged on behalf of Comcare within the foreseeable future. In those circumstances it was unlikely that the matter would proceed with reasonable expedition and it would not be fair to Comcare if I was to reinstate the application. On this basis I refused to exercise my discretion to reinstate the application.

32. The application for reinstatement was dismissed.

I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.

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

Associate

Dated 21 June 2016

Date of hearing	14 April 2016
Applicant	By Phone
Solicitors for the Respondent	K Miller; Sparke Helmore Lawyers