DVFW and Comcare (Compensation)

Case [2025] ARTA 117


DVFW and Comcare (Compensation) [2025] ARTA 117 (24 January 2025)

Decision and Reasons for Decision

Applicant:  DVFW

Respondent:  Comcare

Tribunal Number:                2021/3339 2022/8594

2022/8738

2023/1130

2023/1131

2023/1132

Tribunal:  Senior Member G McCarthy

Place:  Canberra

Date:  24 January 2025

Decision:The Applicant’s applications in proceedings 2021/3339, 2022/8594,     2022/8738,     2023/1130,     2023/1131     and

2023/1132 are dismissed.

………[SGD]………….

Senior Member G. McCarthy

Catchwords

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

  1. 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.

  1. 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).

  1. 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…

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DVFW and Comcare (Compensation) [2025] ARTA 117
Case
[2025] ARTA 117
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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