DVFW and Comcare (Compensation)
[2021] AATA 2801
•11 August 2021
DVFW and Comcare (Compensation) [2021] AATA 2801 (11 August 2021)
Division:GENERAL DIVISION
File Number(s): 2021/3339
Re:DVFW
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member A Poljak
Date:11 August 2021
Place:Sydney
The application for a stay order is refused.
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Senior Member A Poljak
CATCHWORDS
PRACTICE AND PROCEDURE – application for a stay order – reviewable decision by Comcare in relation to psychotherapy treatment – whether a stay order is appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review – practical effect of granting a stay – application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 41
Safety, Rehabilitation and Compensation Act 1988(Cth) s 16
CASES
Australian International College Pty Ltd v Australian Skills Quality Authority [2018] FCA 2097
Australian Postal Corporation v Mowbray [2003] FCA 1258; (2003) 77 ALD 440
Australian Postal Corporation v Oudyn [2003] FCA 318; (2003) 73 ALD 659
Blackwell and Comcare (Compensation) [2017] AATA 1118
Gould and Tax Practitioners Board [2019] AATA 1056
Plumb v Comcare [1992] FCA 903; (1992) 39 FCR 236
Re Scott and Australian Securities and Investments Commission (2009) 51 AAR 114; [2009] AATA 798
Secretary, Department of Employment and Workplace Relations v Anastasiadis [2007] AATA 1065
REASONS FOR DECISION
Senior Member A Poljak
11 August 2021
The applicant has an accepted claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for “Personality Disorder (aggravation)” sustained on 8 November 2012 (the accepted injury).
The applicant seeks review of a decision dated 19 March 2021 which affirmed a determination dated 2 February 2021 (reviewable decision). By that determination, Comcare accepted liability to pay the applicant compensation under section 16 of the Act in respect of psychotherapy treatment at the following frequency:
(i)Two sessions of psychotherapy per week from 31 January 2021 to 28 February 2021;
(ii)One session of psychotherapy per week from 1 March 2021 until 28 March 2021;
(iii)One psychotherapy session per fortnight from 29 March 2021 until 29 May 2021; and
(iv)One psychotherapy session per month from 29 May 2021 until 30 July 2021.
These interlocutory proceedings concern an application for an order under subsection 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AATAct) staying the operation of the reviewable decision until final determination of the substantive proceedings before this Tribunal.
The respondent opposes the granting of a stay order.
POWER TO GRANT A STAY
Subsection 41(1) of the AAT Act provides that the making of an application to the Tribunal for a review of a decision does not affect the operation or implementation of the decision under review. In other words, the decision under review has full effect until and unless it is set aside or replaced.
The Tribunal may, after taking into account the interests of any persons who may be affected by the review, make such orders staying the operation or implementation of the decision pursuant to subsection 41(2) of the AAT Act, as it considers appropriate for the ‘purpose of securing the effectiveness of the hearing and determination of the application for review.’
In Secretary, Department of Employment and Workplace Relations v Anastasiadis [2007] AATA 1065 at [6], the Tribunal stated:
The decision whether to grant a Stay is entirely discretionary. It follows that an applicant does not have an automatic right to a Stay. Given the effect of s 41(1) of the AAT Act, it must necessarily be inferred that the reviewable decision, the decision of the SSAT in this case, is correct until proven otherwise. Further, the general principle applied by the courts that, prima facie, the successful party has the right to the fruits of a judgement should also apply in the case of Tribunal decisions. In the courts, an applicant for a Stay is required to show that there are special circumstances which would justify the stay of execution of the judgement. [Emphasis added]
The test for the Tribunal’s exercise of the discretion under subsection 41(2) of the Act is that the Tribunal considers that such an order is “appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review”, as observed by Justice Bromwich in Australian International College Pty Ltd v Australian Skills Quality Authority [2018] FCA 2097 at [13].
Factors that may be relevant in granting a stay were outlined in Re Scott and Australian Securities and Investments Commission (2009) 51 AAR 114; [2009] AATA 798 (and referred to in Gould and Tax Practitioners Board [2019] AATA 1056 at [7]) include:
(i)the applicant’s prospects of success;
(ii)the consequences for the applicant if the stay is refused;
(iii)the public interest;
(iv)the consequences to the respondent in carrying out its functions;
(v)whether the review would be rendered of no value if the stay is not granted; and
(vi)any other relevant matters.
PURPOSE OF SECURING THE EFFECTIVENESS OF THE HEARING AND DETERMINATION OF THE APPLICATION FOR REVIEW
The decision under review is a decision that the respondent was liable to pay compensation for psychotherapy under section 16 of the Act at a particular frequency for a finite period between 31 January 2021 and 30 July 2021 (the relevant period). In exercising the discretion to grant a stay, the Tribunal cannot cause the respondent to be bound with respect to any future applications for compensation and cannot result in an order compelling the respondent to pay compensation for future medical expenses or incapacity payment until there is a positive determination of the substantive application: Blackwell and Comcare (Compensation) [2017] AATA 1118 at [13]; citing Australian Postal Corporation v Mowbray [2003] FCA 1258; (2003) 77 ALD 440; Australian Postal Corporation v Oudyn [2003] FCA 318; (2003) 73 ALD 659 and Plumb v Comcare [1992] FCA 903; (1992) 39 FCR 236.
As such, if a stay were granted, the practical effect would rise no higher than a situation where the applicant could seek reimbursement for any additional psychotherapy treatment she had obtained during the relevant period.
During the relevant period the applicant’s frequency of psychotherapy treatment gradually reduced from two sessions per week to one psychotherapy treatment a month. The applicant states in written submissions that she has met eligibility for the Disability Support Pension with twice weekly psychotherapy treatment as being accepted treatment. She has also identified in her written submissions, aspects of the medical evidence which support her contention that she requires ongoing frequent psychotherapy treatment.
In written submissions on the stay application, the applicant claimed:
My capacity to positively and efficiently engage in the review proceedings are well reduced without access to the recommended psychotherapy treatment. This poses a risk to the effectiveness of the hearing and to proper determination of my application for review.
The medical evidence demonstrate a continuum of the need for treatment for the accepted injury of 2012. There has been no substantial psychological improvement of the injury to warrant termination of treatment. The prospects of success in my review application are high as the medical evidence shows.
…
The applicant stated at the interlocutory hearing that she has paid for additional psychotherapy treatments she required during the relevant period, the effect of which has caused her financial pressure as she is a single mother with four dependent children. She claims that should a stay be granted, she may seek reimbursement for the additional treatments she paid for during the relevant period and that any reimbursements she obtains would be put towards additional future treatments. The applicant claims that this will assist her in terms of her mental health and functioning and allow her to engage in the substantive hearing effectively.
While the applicant may find it financially difficult to pay for additional psychotherapy treatments in the future, under a recent determination by the respondent, the applicant is eligible to obtain psychotherapy treatment once a fortnight for the months of August and September 2021. Any claims for psychotherapy treatment beyond the relevant period would be determined on the merits by a future determination of the respondent. Should the need arise for increased treatments after September, the applicant may apply for a determination in the future addressing these increased needs. As already stated above, the grant of a stay in these proceedings does not affect any future determinations.
Other factors which may be relevant in considering the granting of a stay, such as the consequences to the applicant and whether the review would be rendered of no value if the stay were not granted, has already been considered above. I do not consider any other factors substantially relevant in the circumstances of these proceedings.
DECISION
I do not consider it appropriate to grant a stay of the reviewable decision for the purpose of securing the effectiveness of the hearing and determination of the application for review pursuant to subsection 41(2) of the AAT Act. The application is refused.
I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
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Associate
Dated: 11 August 2021
Date of interlocutory hearing: 4 August 2021 Applicant: Self-represented Solicitors for the Respondent: Ms A Bortone, Sparke Helmore Lawyers
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