COMPENSATION - application to dismiss Applicant’s applications for review consequent on Applicant’s failure to proceed with the applications within a reasonable time - applications stayed, by order made on 24 July 2024, consequent on Applicant’s refusal to comply with a notice dated 28 May 2024 requiring her to undergo an examination by a psychiatrist nominated by the Respondent – Applicant informed stay would be lifted if she complied with the notice - two further opportunities offered for an examination, each of which was refused
- consideration of whether the refusal, in each case, was without reasonable excuse - on the evidence, in each case no reasonable excuse for non-compliance - on the evidence, no prospect of future compliance and so no prospect of the applications proceeding - no purpose served in the applications remaining on foot - applications dismissed

Legislation

Administrative Appeals Tribunal Act 1975 s 42A
Administrative Review Tribunal Act 2024 ss 9, 100
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024,
Part 6, Schedule 2
Safety, Rehabilitation and Compensation Act 1988 s 57

Cases

Charara v Commissioner of Taxation [2016] FCA 451
Guerriero and Comcare [2017] AATA 2984
Longbottom v Nulis Nominees (Australia) Ltd [2020] WASC 21
Noronha and Comcare [2022] AATA 478
NRJT v Australian Offshore Solutions Pty Ltd [2015] AATA 588 Re Salters and Telstra Corporation Limited [2000] AATA 734 Re Twaddell and Comcare [2001] AATA 759
Richmond and Comcare [2019] AATA 100

Secondary Materials

Administrative Appeals Tribunal, Guide to the Workers Compensation Jurisdiction

Statement of Reasons

As can be seen by their matter numbers, the Applicant’s six initiating applications in these proceedings have been on foot for many years. They arose from the Applicant’s accepted claim of a work injury, namely ‘aggravation of borderline personality disorder’, suffered on 8 November 2012 while she was working with the Department of Human Services.

The first four of the applications arose from the Respondent’s refusal of the Applicant’s claims for increased psychotherapy, specified medication and specified exercise equipment. The last two applications arose from the Respondent’s refusal of her claim for compensation for permanent impairment and non-economic loss under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).

For several years, for the purpose of obtaining an expert opinion regarding the Applicant’s claims, the Respondent had been asking the Applicant to attend a medical examination to be conducted by a psychiatrist nominated by the Respondent. For different reasons, the Applicant chose not to attend. Consequent on its inability to obtain the medical evidence it sought for the purpose of responding to the Applicant’s applications, the Respondent opposed the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DVFW and Comcare (Compensation)

Details

AGLC: DVFW and Comcare (Compensation) [2025] ARTA 117
Case: [2025] ARTA 117
Decision Date: 24 January 2025

CaseChat Overview and Summary

In the case of DVFW and Comcare, the applicant, DVFW, had filed applications seeking review of a decision regarding her entitlement to compensation. Comcare, the respondent, sought to dismiss these applications due to DVFW's failure to proceed with the applications within a reasonable time. The matter was before the court which was required to decide whether the applications should be dismissed due to DVFW's persistent refusal to comply with notices requiring her to undergo a psychiatric examination. The court considered whether DVFW's refusals were reasonable and whether there was any prospect of future compliance that would allow the applications to proceed. The court found that DVFW had refused to comply with each opportunity provided for an examination without reasonable excuse and that there was no prospect of future compliance. Consequently, the court concluded that there was no purpose served in the applications remaining on foot.

The court carefully examined the evidence presented regarding the notices and DVFW's responses. It found that each refusal to comply with the notices was unjustified and that there was no reasonable excuse for her actions. Given the lack of reasonable excuse and the absence of any prospect of future compliance, the court determined that the applications had no chance of proceeding. The court further noted that the stay on the applications had already been in place since 24 July 2024 due to DVFW's initial refusal to comply with the psychiatric examination notice dated 28 May 2024. Despite being informed that the stay would be lifted if she complied with the notice, DVFW refused to take advantage of two further opportunities to undergo the examination. Therefore, the court concluded that dismissing the applications was the appropriate course of action.

Orders