DVFW and Comcare (Compensation)
[2025] ARTA 117
•24 January 2025
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 21Noronha 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 progression of the Applicant’s applications to hearing and/or determination and the applications stalled.
The Applicant’s refusal to attend an examination scheduled for 3 June 2024 and another proposed for 13 September 2024 led to the Respondent making an application dated 27 August 2024 for the Applicant’s applications to be dismissed consequent, it said, on her failure to proceed with her applications in a reasonable time (the dismissal application). For the reasons that follow, I am satisfied the dismissal application should be granted.
This matter has a long and tortuous history, but for the purpose of deciding the dismissal application, it is enough to pick up the story from 27 March 2024 when the Respondent’s solicitor sent the Applicant an email stating the Respondent required her to undergo an examination with a psychiatrist, Dr Jungfer. The examination was to take place on 3 June 2024 at 1.30pm.
This requirement was confirmed on 17 May 2024 in the Respondent’s submissions of that date, at paragraph 19, sent to the Administrative Appeals Tribunal (the AAT) and the
Applicant. Those submissions concerned the Respondent’s objection to the Applicant’s wish that her six applications be decided ‘on the papers’ without her attending the proposed examination. The Respondent’s submissions included a statement that the Respondent intended to issue a notice under section 57(1) of the SRC Act requiring the Applicant to attend the examination on 3 June 2024.
On 28 May 2024 the Respondent duly gave the Applicant a notice of that date requiring her to undergo an examination by Dr Jungfer on 3 June 2024 to be conducted “by video”. Relevant for present purposes, the notice stated:
The Examination can take place via video in the rooms of Mr Heard or with another support person you consider to be appropriate subject to any support person you select being available on Monday, 3 June 2024 at 1:30pm.
Section 57(2) of the SRC Act provides that 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 the SRC Act, and to institute or continue any proceedings under the SRC Act, in relation to compensation are suspended until the examination takes place.
..
Should you not attend the Examination, or in any way obstruct the Examination, please provide Sparke Helmore (the Respondent’s solicitor) or Comcare with any explanation or evidence you wish to present as your excuse by not later than 5pm on 10 June 2024. Comcare may proceed to make a decision under s 57(2) of the SRC Act on or after 11 June 2024 without reverting to you again, and based only on the information it has before it as at 5pm on 10 June 2024
..
As previously advised, the Examination can take place by video in the rooms of Mr Heard or another support person you consider to be appropriate and available, and Comcare agrees to pay the reasonable expenses of Mr Heard or that other support person. (emphasis added)
The notice accurately represented section 57(2) of the SRC Act, which states:
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.
By email sent on 31 May 2024 at 10.16am, the Respondent’s solicitor sent the Applicant a reminder of the examination with Dr Jungfer scheduled for 3 June 2024 at 1.30pm. The email added the following question:
Please let us know if you would like us to arrange for Dr Jungfer to send the Zoom link directly to your support and, if so, please provide the contact details of that support person.
By email sent on 31 May 2024 at 4.57pm, the Applicant replied:
At this stage, no arrangement is required for the link to be sent to my support person.
By email sent on 31 May 2024 at 5.17pm, the Respondent’s solicitor sent the Applicant a reply as follows:
Thank you for your email. In that case, we will ensure, if this hasn’t already happened, that Dr Jungfer sends the link for the appointment directly to you.
By email sent on 1 June 2024 at 12.34am, the Applicant replied:
No, that won’t be necessary at this stage thankyou.
By email sent on 3 June 2024 at 7.24am, Dr Jungfer sent the Applicant a link to join the Zoom meeting at 1.30pm that day.
By email sent on 3 June 2024 at 12.02pm, the Applicant sent Dr Jungfer a reply explaining why she would not be attending the examination. Her reasons focused on the absence of her support person, Mr Heard. Relevant for present purposes, the Applicant’s email stated:
I don’t understand why you have sent me this email. As you were made aware by Mr Heard in emails dated 27 May 2024, [the Respondent’s solicitor] has not sent any information to [Mr Heard] in regards to the Assessment. Are you aware that [the Respondent’s solicitor] did not provide Mr Heard with any communications despite receiving your email? Mr Heard is not available for this assessment to occur. I was very confused when [the Respondent’s solicitor] asked if she should have you send me the link to which I responded with No. It looks like she ignored me and requested it regardless.
After consultations with both Mr Heard and Dr Singh this morning, it would be unwise for me to attend this appointment against their advice, with it occurring on my own. It is worth noting that I was only advised of the directed IME taking place on the 28 May 2024 which is only 4 business days notice, which is totally unreasonable in
usual circumstances but especially considering you advised, “Any kind of framework such as requiring the responses within 28 days may also be seen as persecutory on the part of DFVW’. How can a professional reasonably provide their availability with 4 days notice, that is so unreasonable.
..
My mental health is important to me, I cannot subject myself to such an assessment that I was advised was modified to be in a safe environment with my therapist yet no effort has been made by [the Respondent’s solicitor] to ensure this.
Mr Heard, can you please advise if [the Respondent solicitor] communicated with you about today’s appointment for your availability to ensure my safety during this process?
Dr Jungfer, can you advise if you are aware that Mr Heard’s availability has not been sought as per the “modifications” to ensure my safety?
By email sent on 3 June 2024 at 12.20pm to the Applicant, Dr Jungfer and the Respondent’s solicitor, Mr Heard stated:
This is to confirm that I have received no communication whatsoever on this matter from [the Respondent’s solicitor], despite her being included in my recent email exchange with Dr Jungfer.
As I understood it, Mr Heard’s reference to his “recent email exchange with Dr Jungfer” is a reference to the emails that passed between them on 22, 24 and 27 May 2024.
By email sent on 22 May 2024 at 7.49am, Dr Jungfer sent Mr Heard an email inviting him to the scheduled Zoom meeting with the Applicant and provided him with the link.
By email sent on 24 May 2024 at 12.28pm, Mr Heard sent a reply to Dr Jungfer as follows:
I was surprised at this invitation because it was not accompanied by any information as to the meetings purpose, who I should bill, or enquiries as to my availability. So until the above issues are dealt with, I am unable to accept your invitation.
By email sent on 24 May 2024 at 12.48pm, Dr Jungfer sent Mr Heard a reply as follows:
Sorry about this I sent you the invite because [the Applicant] has an appointment scheduled on the day to do the assessment, I did not realise you had not been informed by [the Applicant] or the parties regarding this, I was not meaning to offend
or be presumptuous. I was trying to get on top of all my video assessments and be efficient. I have copied in Comcare’s solicitor to clarify matters.
Please accept my apologies.
On 27 May 2024 at 3:01pm, Mr Heard sent Dr Jungfer the following reply:
Yes no worries. I look forward to further clarification.
By email to Mr Heard sent on 3 June 2024 at 12.23pm, in response to his email sent to her that day at 12.20pm, Dr Jungfer stated:
Sorry about all this and the communication issues I was unaware no one had communicated with you. I received an email on Friday from the solicitors to send the zoom link directly to [the Applicant] which I have done.
By email to Dr Jungfer sent on 3 June 2024 at 7.18pm, copied to the Applicant and the Respondent’s solicitor, Mr Heard stated:
Thanks for that clarification. I don’t think anyone could be blaming you for this mishap.
By email to Mr Heard sent on 4 June 2024 at 12.50pm, copied to the Respondent’s solicitor, the Applicant stated her position regarding her non-attendance at the examination. Relevant for present purposes, the Applicant stated:
Yes, it certainly is not Dr Jungfer’s fault. Comcare had plenty of opportunity to advise you but chose not to. This was to render me without the required support to ensure my safety as per the modifications. Also providing 4 days notice is totally unreasonable. This whole mess has been very upsetting and very confusing.
In her email to Mr Heard, copied to the Respondent’s solicitor, the Applicant also took issue with the statement in the section 57 notice that if she did not attend the examination she should provide any explanation or excuse for why she did not do so by 10 June 2024. The Applicant described the “entire content” of the section 57 notice as “highly oppressive and uses bullying tactics”. In her email, the Applicant continued:
I have noted this because in Comcare’s policy as attached, I am to be provided with an opportunity to explain within 14 days. My support person will assist me in providing this within 14 days in accordance with the policy.
A Comcare document headed “Non-attendance or Obstruction of Medical Examination” under the heading “Introduction” supports the Applicant’s position. It states “Where an employee fails to attend or obstructs a medical appointment, the Claims Manager must provide the employee with an opportunity to give a reasonable excuse within 14 days.”
I note another Comcare document headed “Section 57 power to require a medical examination under the Safety, Rehabilitation and Compensation Act 1988”, in relation to an employee refusing or failing to attend an examination, which states:
There is no legislative timeframe setting out how long a claims delegate must provide an employee for the right of reply. The timeframe provided is at the discretion of the claims delegate but should take into consideration an employee’s circumstances and be reasonable. Claims delegates must follow procedural fairness and ensure appropriate time is provided to an employee to respond.
Nothing turns on this discrepancy because, by letter dated 7 June 2024, the Respondent wrote to the Applicant offering to take into account anything the Applicant wished to say or add by way of a reasonable excuse for not attending the examination by 5pm on 18 June 2024. As the Respondent pointed out, this date “aligned” with the Applicant’s statement in her email of 4 June 2024 stating she would provide an explanation “within 14 days”.
The Respondent’s letter dated 7 June 2024 attached documents the Respondent intended to take into account when deciding whether the Applicant had a reasonable excuse for not attending the examination. The documents included an email from the Respondent’s solicitor to the Applicant sent on 9 October 2023 at 4.16pm which noted the Respondent’s solicitor’s understanding that the Respondent’s solicitor’s -
did not have your authority to deal directly with Mr Heard.
That understanding appears to be correct, noting the Applicant’s earlier email to the Respondent’s solicitor sent on 5 October 2023 at 4.23pm in relation to an earlier proposed examination by Dr Jungfer to occur on 9 October 2023. The Applicant wrote:
I believe the onus is on you to advise Mr Heard in writing of the cancellation of the assessment hence the arrangements in place will not be required.
..
Please compose and send me the cancellation email for Mr Heard and I will immediately forward it to his email address.
By email to the Applicant sent on 6 October 2023, the Respondent’s solicitor wrote:
Please pass on to Mr Heard the following information.
Dear Mr Heard
I understand that arrangements had been made for you to attend as [the Applicant’s] support person at an appointment she had with Dr Jungfer that was to have taken place on 9 October 2023 at 9.30am. Please note that we have cancelled the appointment for [the Applicant] to see Dr Jungfer on 9 October 2023, so your attendance at that appointment as [the Applicant’s] support person will no longer be required.
Kind regards, Thank you,
It would appear the Applicant did not forward the email to Mr Heard, as she stated she would. By email to the Respondent’s solicitor sent on 9 October 2023 at 4.10pm, the Applicant wrote:
Mr Heard advised today that you had not sent through an email nor contact him to cancel the time set aside for the IME with Dr Jungfer this morning.
I do not understand why you wouldn’t let him know it wasn’t going ahead.
…
I would greatly appreciate if you could let myself and the registry know why you chose not to communicate with him please.
This email led to the answer in reply from the Respondent’s solicitor sent at 4.16pm mentioned above stating the Respondent’s solicitor’s understanding that she did not have “authority to deal directly with Mr Heard”.
Why the Applicant claimed she did not understand why the Respondent’s solicitor had not contacted Mr Heard to let him know the independent medical examination (IME) was not going ahead, having regard to her email four days earlier, sent on 5 October 2023 asking
the Respondent’s solicitor to compose the cancellation email which she would then “immediately forward” to Mr Heard, was not explained.
The Respondent’s letter dated 7 June 2024 notes advice from Dr Jungfer that she held the video link open on 3 June 2024 at 1.30pm to enable the Applicant to attend the examination, but the Applicant did not attend. The Respondent’s letter stated the Respondent’s preliminary view that Mr Heard’s non-attendance at the examination, as the Applicant’s support person, was not a reasonable excuse for the Applicant not attending because, in summary, the Applicant did not make any arrangements for him to attend and declined the offer to arrange a video link to be sent to Mr Heard in order for him to attend the examination.
The Respondent’s letter dated 7 June 2024 invited the Applicant to provide “anything else you wish me to consider” by 18 June 2024. By email sent on 12 June 2024, the Applicant acknowledged receipt of the letter and its attachments.
The Respondent states it did not receive anything further from the Applicant prior to 5pm on 18 June 2024. Accordingly, by letter dated 20 June 2024, the Respondent informed the Applicant of its decision pursuant to section 57(2) of the SRC Act to suspend the Applicant’s rights to compensation consequent on the Applicant’s failure to attend the examination on 3 June 2024 without reasonable excuse. The letter concluded by stating the suspension would end when the Applicant attended an examination with Dr Jungfer pursuant to the section 57 notice and referred to the Respondent’s earlier letter of 7 June 2024 explaining the steps the Applicant could take “if you wish arrangements to be made as quickly as possible for the examination to be conducted”.
On 20 June 2024 at 1.03pm, shortly after the Respondent had made its decision to suspend the Applicant’s rights to compensation, the Respondent received an email from the Applicant by way of her response to the Respondent’s letter dated 7 June 2024. It appears the Applicant attempted to send her response on 18 June 2024 at 4.56pm, but the transmission was not successful. The Applicant disputed it was not successful.
In summary, the Applicant contended the absence of Mr Heard was a reasonable excuse for why she did not attend. The Applicant relied on Dr Jungfer’s agreement to Mr Heard being present at the examination and being seen by audio-visual link, and that this did not occur.
The Applicant also provided a letter from Dr Singh, psychiatrist, dated 31 May 2024 marked “To Whom It May Concern”. In it, Dr Singh commented on a phone call he had had earlier that day with the Applicant in which Dr Singh stated the Applicant “sounded quite distressed and has expressed her apprehension of being traumatised further if asked to attend any further IME assessments”. Dr Singh concluded:
Given the potential chance of further escalating [the Applicant’s] psychological distress I would like to request for consideration to be given to avoid any further IME assessments at this stage.
Why the Applicant did not provide Dr Singh’s letter until 18 or 20 June 2024 was not explained.
In response to the suspension of her compensation rights, the Applicant began pressing the Respondent to arrange a new examination which she and Mr Heard could attend in order for the suspension to be lifted. However, the Applicant sought an examination on her terms, not the Respondent’s.
For example, on 26 June 2024 the Applicant sent an email asking for an examination, but by a different female doctor.
By email sent on 9 July 2024, the Applicant referred to her earlier email sent on 26 June and stated “please provide me details for my new alternate female IME asap.” The Applicant advised Mr Heard was available for an examination on 17 July 2024 from 2pm in his Katoomba Office. She requested the Respondent to provide Mr Heard “with a letter advising confirmation of duration and invoicing.” The Applicant asked for an examination appointment that afternoon with confirmation in writing that Mr Heard would be paid and advice and that the Respondent would pay for her transport and of another support person from her home to Katoomba and return.
Around this time, the Applicant made a complaint to the Health Care Complaints Commission (the HCCC) against Dr Jungfer.
On 10 July 2024, the Applicant sent an email to the Respondent stating, among other things:
I will not be telling you again that I am not attending an assessment with Dr Jungfer. Is it that you don’t understand or just ignoring my emails to you. I advised that a
complaint was made to Comcare and the HCCC in regards to her. And yes she knows about it.
Ensure you make an appointment with a female examiner for 17 July as that is when Mr Heard is available. I again reiterate that I will not be attending an examination with Dr Jungfer so make an appointment immediately with a female psychiatrist.
On 16 July 2024, the Respondent’s solicitor advised it would not be briefing another psychiatrist and gave reasons for why it would not do so. These reasons included that Dr Jungfer have been briefed in this matter as an independent medical examiner for more than two years and had read extensive material (more than 1200 pages) in preparation for examining the Applicant. She stated that to brief another a psychiatrist would involve an inefficient use of public money because it would involve “duplicate expenditure of thousands of dollars”. The Respondent’s solicitor noted to brief another psychiatrist would also divert many hours of time for another psychiatrist where there is a documented national shortage of available psychiatrists.
The Respondent’s solicitor also stated an examination would not be scheduled for 17 July 2024 due to the unavailability of Dr Jungfer (or any other psychiatrist on such short notice if one were to be approached). The Respondent’s solicitor repeated its request for information regarding Mr Heard’s availability to enable a new appointment time with Dr Jungfer to be scheduled.
On 16 July 2024, by email in reply, the Applicant again protested against Dr Jungfer continuing to be involved. Among other things, the Applicant wrote:
Dr Jungfer is not and will never be fit for conducting IMEs. I will ensure she as well as you are held accountable for making up lies in treating me as though I have no rights.
Please have Dr Jungfer sign her consent that the entirety of the assessment will be recorded to protect my rights. If she refuses, the assessment will still be recorded without her consent.
Please do not mention “public funds wasted” you have obtained 100 times more than that and have only created issues instead of resolving matters by working with me, instead you and Comcare are constantly scheming away.
By email to the Applicant sent on 2 August 2024, Mr Heard advised that from 12 August 2024 for the next two months he would be available only on Monday afternoons from 2pm
and would “require confirmation direct from Comcare … agreeing to pay him $218 per hour for the duration of the examination and any additional time before and after the meeting that may be required.”
Meanwhile, on 8 July 2024, the AAT conducted an interlocutory hearing on the question whether it had jurisdiction to review the Respondent’s decision to suspend the Applicant’s rights to compensation and her right to continue these proceedings. In its reasons for decision provided to the parties on 24 July 2024,1 with which I agree, the AAT found it did not have jurisdiction to evaluate the reasonableness of the Applicant’s excuse for failing to undergo the examination. It found that on 20 June 2024 the Respondent decided the Applicant’s reasons for failing to attend the examination on 3 June 2024 were not reasonable2 whereupon, by operation of section 57(2), the Applicant’s rights to compensation and to continue these proceedings were suspended. Consequentially, the AAT ordered in relation to each of the six proceedings:
As DVFW’s rights to compensation have been suspended under s 57(2) of the Safety, Rehabilitation and Compensation Act 1988, the proceedings in the Tribunal are stayed until the notice issued on 28 May 2024 under s 57(2) of that Act is complied with.
By letter dated 5 August 2024, the Respondent’s solicitor wrote to the Applicant regarding a new date for an examination by Dr Jungfer. The Respondent’s solicitor explained the best chance of an appointment with Dr Jungfer was on a Friday and asked if Mr Heard could be a little more flexible regarding his availability or if a different support person could attend in the interests of the examination occurring in a timely way.
The Respondent’s solicitor also noted the Applicant’s request for Dr Jungfer’s consent to the Applicant recording the assessment. The Respondent’s solicitor noted it could be recorded in a manner that could then be provided to the AAT and to the Applicant in the course of the tribunal proceedings as a full and complete recording, but did not agree to the Applicant recording the appointment herself.
1 DVFW and Comcare [2024] AATA 3051
2 [2024] AATA 3051 at [51(e)]
By email sent on 5 August 2024, the Applicant protested against the Respondent’s unwillingness to schedule an appointment at a time that suited Mr Heard’s availability and its unwillingness to find an alternative doctor to conduct the examination who would be available. As the Applicant put it:
Please remember that you do not get to tell me what to do.
You asked for Mr Heard’s availability and I have complied with your request. Please book an appointment based on the availability you have been provided.
On 7 August 2024, another support person of the Applicant, Mr Harris, wrote a lengthy email to the Respondent’s solicitor and Dr Jungfer stating his views regarding the proposed examination.
The Applicant forwarded Mr Harris’ email to the Respondent’s solicitor as “my official and final response”. Relevant for present purposes, among other things, Mr Harris stated:
(a)What powers do you presume to have where you can request that [the Applicant] commits to not recording? You do not tell [her] what she will or will not do. You are not the police, you have no powers to demand anything.
(b)s57 of the SRC Act allows you to book an appointment and that is it. It does not provide you any ability to attach conditions or caveats on the booking, and even if it did, [the Applicant] is under no obligation to entertain any of them. [The Applicant] is simply required to attend the examination, and not obstruct the examination in any way. She doesn’t even have to answer any questions, she can sit there completely in silence if she wishes, it is not a police interrogation.
(c)So to directly answer your questions:
“That you acknowledge that you will not personally be able to record the appointment;” [The Applicant] has already answered this question by stating “Please remember that you do not get to tell me what to do.”
“Whether or not you wish Comcare to limit its availability queries to Dr Jungfer to only a time after 2pm on Mondays in the next two months”. [The Applicant] wishes for one thing and one thing only, to become unsuspended…. You asked for [her] to supply you with 2 months of availability for herself and her support person, and she has fulfilled your request. We do not go back and forth and negotiate now that you do not like their availability. … Now please book an appointment using the availability that you DEMANDED. .. You have the requested availability for [the Applicant] and her support person, [the Applicant] has nothing further to add.
(d)If you schedule another appointment and she does not attend, sure okay yes you can apply to the Tribunal to set aside the proceedings. But if you do not even book an appointment for her to attend, good luck convincing Senior Member that he
should set aside the matter when [the Applicant] has not even had the opportunity to attend. What you are doing is a threat … You are trying to use fear to get [the Applicant] to do what you want, we know what you are doing and I am putting you on notice about it.”
(e)“There is nothing that says [Dr Jungfer] must do the examination, if [Dr Jungfer] is unavailable on the availability that you requested … book a psychiatrist who is actually available to do the job.
(f)It is 100% clear that you are DESPERATE for [Dr Jungfer] to examine [the Applicant] because you are paying her to say what you want her to say. This is the real reason why you refuse to hire another psychiatrist, we know it, and all of this is going to be produced to the Tribunal including your threats and harassments to [the Applicant] trying to strip her of her lawful right to record etc. .. Maybe [the Applicant] will be recording, maybe she will not? She is not going to let you know either way so please cease harassing her into telling you something that she does not have to tell you.
(g)Ian Harris (on behalf of [the Applicant])
On 9 August 2024, the Applicant wrote to the Respondent’s solicitor, relevantly stating:
Please book an appointment urgently to lift my suspension with the availability provided to you.
How long are you and Comcare going to continue this financial abuse for???
Book an appointment asap with a female psychiatrist so my suspension can be lifted and that is the priority and should be yours and Comcare’s too.
Stop asking the same questions over and over again. I have answered them and like I’ve said, you do not get to tell me what to do.
AGAIN, as discussed previously, if I want to record I will do so at my own discretion and I have nothing further to add.
On 9 August 2024, the Respondent’s solicitor wrote to the Applicant, essentially maintaining its position. The Respondent’s solicitor explained that cancellations with Dr Jungfer on a Monday afternoon do happen, but were unlikely to occur with sufficient time to arrange an appointment with the Applicant. The Respondent’s solicitor again stated an earlier appointment was more likely on a Friday. The Respondent’s solicitor again asked if the Applicant agreed to attend the appointment and to respond to questions Dr Jungfer asked her; agreed not to personally record the further appointment; and whether there were “any Fridays in the period 16 August-27 September inclusive that are not suitable for you and
your support person .. (noting it is open to you to seek a different support person, if Mr Heard is unavailable)?”
By letter dated 14 August 2024, the Respondent’s solicitor wrote to the Applicant advising Dr Jungfer did not have an available appointment on a Monday afternoon until late April 2025. She advised however that arrangements had been made for Dr Jungfer to see the Applicant on 13 September 2024 at 1pm by audio visual link. The Respondent’s solicitor stated Dr Jungfer did not agree to the Applicant making her own recording but, to address the Applicant’s concerns, agreed to arrange for an independent recording to be made and to provide the Applicant with an accurate transcript of the discussions on condition it was used only for claims management purposes.
On 19 August 2024, the Applicant forwarded an email from Mr Heard in which Mr Heard stated he was not available to support an IME on 13 September 2024.
On 21 August 2024, the Applicant forwarded an email from Mr Harris written earlier that day. In her covering email, the Applicant stated –
All communications surrounding the IME appointment are to go to [Mr Harris] with me cc’d. I will no longer communicate directly with you in regards to the IME that you are to book asap to lift my suspension.
Mr Harris’ email is eight pages in length, most of it argumentative and abusive, but (in summary) makes the following points:
(h)With reference to the Applicant’s email of 7 August 2024 stating Mr Harris’ email forwarded on that date was her “official and final response”, Mr Harris wrote:
FINAL means that [the Applicant] has no further response for you .. She awaits for you to book an IME appointment, and she does not have to say or do anything to you in the meantime so please cease and desist with your continual badgering.
(i)From now on, in an effort to shield [the Applicant] from your blatant attempts to bully her, all emails regarding this IME assessment will be coming to me so that I can protect her. … Think of me as a not lawyer but acting sort of like a lawyer.
(j)The legislation does not require [the Applicant] to indicate she will attend, [the Applicant] has supplied you with the availability of both herself and her support person exactly as you requested it, and if you decide to book an IME appointment
that is outside of that availability well that is incredibly ignorant and just makes you look like the bully that you are.
(k)The Tribunal agreed that if it could be deemed that an IME would harm her health, it could be seen as reasonable for [the Applicant] not to attend. This is exactly what led to the “modifications” that were negotiated in the tribunal. As you are aware, one of the “modifications” is that [the Applicant] has her TREATING PRACTITIONER present at the IME as a support person. If you are unwilling to accommodate [the Applicant] taking her TREATING PRACTITIONER to the appointment, then it is only going to be said that she had a reasonable excuse not to attend.
(l)You provided [the Applicant] the s 57 notice for the appointment on 28th May 2024, for an s57 appointment which was 3rd June 2024. That was only 4 working days that you gave [the Applicant] to book Mr Heard, and that is itself inappropriate. Frankly, in my view, this suspension is unlawful because [the Applicant] had a reasonable excuse not to attend, the fact alone that you only gave her 4 working days to arrange an appointment with her support person is a reasonable excuse.
(m)In response to the Respondent’s solicitor stating it was not the Respondent’s intention to change its position if the further appointment on 13 September 2024 with Dr Jungfer is cancelled, Mr Harris wrote:
We are wholly uninterested in your intentions in fact if you could keep your intentions to yourself, I think we would all be better for it. We are interested in only one thing, an IME being booked that can perform the session when Mr Heard is available, namely ANY Monday of your choosing after 2pm … surely you can find a psychiatrist that can make this time?
(n)Why are you acting so unreasonable? Again, I say it is because you have a personal vendetta against [the Applicant].
(o)In response to Mr Harris’ earlier statement, adopted by the Applicant and noted by the Respondent’s solicitor, that during an examination the Applicant could “choose to be silent or decline to answer questions”, Mr Harris wrote:
Actually that was me that said this .. [The Applicant] has not stated that she will not answer questions, and you must not assume that to be the case. There is only 1 agency in Australia that has powers to demand the answers to questions, that agency is the Australian Criminal Intelligence Commission .. [The Applicant] is only required to answer questions that she is comfortable answering, this is the facts, you might not like them but it’s the truth.
(p)In response to the Respondent considering it reasonable to require the Applicant’s assurance that she “will attend the further appointment without obstruction”, Mr Harris wrote:
[The Applicant] does not have to assure you of anything. [The Applicant] is her own soul, and she can make her own decisions to choose what she will or will not do on the day of the appointment. She is not required to make promises to you that she will or will not do certain things, and no such promises will be forthcoming. … you are trying to bully [the Applicant] out of even basic human rights, it is disgusting.
(q)In response to the Respondent seeking an assurance from the Applicant that she would not herself record the appointment overtly or covertly, noting that consent for her to do so was not provided by the Respondent or Dr Jungfer, Mr Harris wrote:
The state of NSW where the IME is being conducted allows for [the Applicant] to record the examination to protect her lawful interests. IF [the Applicant] wishes to record the examination, she is free to do so. I have previously supplied you with the exact legislation, and I note that you have failed to demonstrate that I am wrong. … So please understand that no such acceptance or agreement will ever be forthcoming, and further attempts at this are purely harassment.
(r)In response to the Respondent wishing to make an independent recording by Pacific Transcriptions, Mr Harris wrote:
I am instructed that [the Applicant] does not agree to this third party retaining a record of her very sensitive medical affairs, and if she sees they are recording, then she will have a reasonable excuse not to attend the examination .. You have been forewarned.
(s)In response to the opportunity for an examination on 13 September, Mr Harris wrote:
What point was there for Comcare to make an appointment on 13th September if you now propose to cancel it? You were issued with [the Applicant’s] and Mr Heard’s availability … It seems like you made an appointment and then set about using a campaign of fear and harassment to try and force [the Applicant] and Mr Heard to suddenly become available to suit your vendetta … it is clear that you booked an appointment at a date and time that suits Dr Jungfer, knowing full well the other parties are unavailable, and your plan is to threaten, coerce, induce the parties to bend to your will. Ummmm no, sorry, this nonsense behaviour ends today.
(t)Show me where in the legislation [the Applicant] is required to notify you that she will attend? Shoe (sic) me any of the “modifications” that were negotiated in the tribunal that specify [the Applicant] must agree to certain things and acknowledge attendance? No sorry, it does not exist.
(u)Even if the appointment is with Dr Jungfer, [the Applicant] doesn’t care. You seem to be the ones hung up on using Dr Jungfer, and you are literally shooting yourselves in the foot because it demonstrates a bias, any report from [Dr] Jungfer I am confident will get thrown from the tribunal anyway.
By letter dated 27 August 2024, the Respondent applied to the AAT for an order that the Applicant’s six applications be dismissed consequent on the Applicant’s failure, it said, to proceed with her applications in a reasonable time. The Respondent relied on paragraph
6.5 of the AAT’s Guide to the Workers Compensation Jurisdiction (the Guide), which provided that if the decision-maker tells the AAT it thinks the proceedings are suspended because the claimant has refused or failed to undergo a medical examination or in any way obstructed the examination and the AAT had not been advised within a period of 3 months that the claimant had undergone the examination, the AAT would consider whether or not to dismiss the claimant’s application to the AAT under section 42A(5) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
Section 42A(5) stated:
If an applicant for a review of a decision fails to do either of the following within a reasonable time:
(a)to proceed with the application; or
(b) to comply with a direction by the Tribunal in relation to the application; the Tribunal may dismiss the application without proceeding to review the decision.
On 14 October 2024 the AAT Act was repealed and, consequently, the AAT ceased to exist. The Administrative Review Tribunal Act 2024 (the ART Act), which established this Tribunal, commenced on the same day.
Pursuant to Part 6, Schedule 2, item 24 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, “if a proceeding in the AAT is not finalised (however described) before the transition time3 [as in this case] the proceeding must be continued and finalised by the ART in a manner that the ART considers is efficient and fair.” Accordingly, this Tribunal can and must continue to hear and determine the Respondent’s dismissal application.
3 "Transition time" is defined in Schedule 16, item 1, to mean the time the Administrative Review Tribunal Act 2024 commenced, meaning 14 October 2024
Section 100 of the ART Act is materially the same as section 42A(5) of the AAT Act. It provides:
100 Tribunal may dismiss application if applicant fails to comply with order etc.
The Tribunal may dismiss an application made to the Tribunal if the applicant fails to do either of the following within a reasonable time:
(a)proceed with the application;
(b) comply with this Act or an order of the Tribunal in relation to the proceeding in relation to the application.
The Respondent’s dismissal application arose from the ongoing stay of the proceedings and the absence of any prospect, the Respondent contended, of the Applicant complying with the notice issued on 28 May 2024.
By email to the AAT sent on 23 September 2024, copied to the Respondent, the Applicant maintained her position. She stated:
They should be made to organise a suitable appointment as per Mr Heard’s availability with the first available female IME.
On 30 September 2024, the AAT heard the Respondent’s dismissal application. The Respondent relied on its written submissions dated 25 September 2024, which I have read. The Respondent submitted the Applicant cannot resist undergoing an examination by reference to Mr Heard’s narrow window of availability and that her refusal to undergo an examination for that reason was, in turn, preventing her applications from proceeding. The Respondent submitted the proceedings were, in effect, at a stalemate because the Applicant would not even agree to identifying a mutually suitable date for an examination with Dr Jungfer. The Respondent submitted in the circumstances the applications should be dismissed.
The Applicant contended the IME scheduled for 3 June 2024 was to occur only if Mr Heard was there as her support person. She contended Mr Heard had asked for details about the appointment, yet the Respondent’s solicitor ignored his request. The Applicant contended the Respondent’s solicitor did not respond to Mr Heard or Dr Jungfer about Mr Heard’s attendance and noted Dr Jungfer later apologised for Mr Heard not being notified about the appointment.
The Applicant said Mr Heard had told Dr Jungfer via email he was not available and so queried why Dr Jungfer had then sent her a link to join the examination by Zoom but Dr Jungfer did not respond. The Applicant said she was never going to attend without the safety of her support person and contended the Respondent ignored those issues.4
In relation to a future IME, the Applicant contended there was no need for the IME to be conducted by Dr Jungfer and the Respondent could arrange an IME with someone else when Mr Heard was available. The Applicant contended it was unfair and oppressive that it was taking so long to arrange an IME with a female doctor that she could attend with Mr Heard.
The AAT noted that, pursuant to section 57 of the SRC Act, a notice had been issued requiring the Applicant to undergo an examination and yet the Applicant, for varying reasons, continued not to comply with it despite stating her intention to do so. The AAT suggested the Applicant could not continually resist attending an IME with Dr Jungfer by reason of the very limited availability of Mr Heard to attend as her support person and that greater flexibility was required.5 The AAT pointed out that suspension of her compensation payments continued, as a matter of law, whileever she had not undergone the examination and that it was in her interests and in her control to undergo the examination in order for the suspension to be lifted. Options were explored for the examination to occur on a Friday afternoon when Dr Jungfer might have a cancellation. The Applicant responded that she felt very overwhelmed by the whole proposition.
The Respondent commented it had attempted to liaise with Mr Heard directly without success about a mutually suitable time for the IME and had explained to the Applicant that she should liaise with Mr Heard herself regarding his availability.
The AAT concluded, on balance, not to dismiss the Applicant’s six applications and to give further time to work out an arrangement for the Applicant to undergo an IME with Dr Jungfer in the coming weeks.
4 Transcript of proceeding, 30 September 2024, page 11, lines 35-38
5 Transcript of proceeding, 30 September 2024, pages 13-17
The Respondent agreed to its dismissal application being adjourned, in order to give time for a further appointment to be arranged for an IME, but pointed out that more was involved than finding a date. It noted the obligation on the Applicant not to obstruct the examination “in any way”. In particular, the Respondent explained it had made clear to the Applicant that it and Dr Jungfer would require the IME to be recorded by an independent professional transcription service and that Dr Jungfer would not agree to the Applicant making her own personal recording. The Respondent made clear that if the Applicant would not agree not to personally record the examination, it would not go ahead. The Respondent submitted that insistence on making a personal recording, contrary to the wishes of Dr Jungfer, would not constitute co-operation with the IME and would amount to obstruction of it. In reply, the Applicant stated she wanted the Respondent to provide her with a notice to attend the IME but not to ask her to “waive her rights” in any way or to ask for her “consent of anything”.6
The AAT did not deal with these foreshadowed positions. Rather, it focused on the need to make arrangements for the appointment rather than the Applicant’s obligation not to obstruct it. The AAT encouraged the Applicant to approach the IME in that way. On that basis, the dismissal application was adjourned for further hearing on 25 October 2024 in the hope that by that date arrangements for the IME would be in place and the dismissal application might therefore not be pressed.
By letter dated 1 October 2024, the Respondent informed the Applicant it could arrange an examination with Dr Jungfer on Tuesday, 15 October 2024 at 1.30pm. The Respondent noted it was not prepared to book the examination unless it was likely to be successful. To that end, the Respondent asked the Applicant whether she agreed to five questions stated in the letter, the last of which was whether she consented to the appointment being recorded by a professional transcription service and agreed not to make any other recording.
By email in reply sent on 3 October 2024, the Applicant stated she would be available to attend the examination at 2pm on 15 October 2024 (and other dates in October) and asked the Respondent to book the appointment “so that the suspension placed on my claim is lifted”. She also stated “I do not consent to any third-party recording of my examination”.
6 Transcript of proceeding, 30 September 2024, page 33, lines 33-36
In support of her right not to give that consent, the Applicant stated:
Under the Privacy Act 1988, specifically the Australian Privacy Principles as Schedule 1 within the act, my consent is not provided for any third party to record my sensitive information that is disclosed within the course of any examinations. The SRC Act instructs that I must attend an examination, and I must not obstruct the examination in any way.
The SRC Act does not contain any provisions that waive away my rights afforded to me by the Privacy Act 1988 or any other Australian Acts, nor does it operate above any other legislation.
Section 15 of the Privacy Act 1988 states:
“APP entities must comply with Australian Privacy Principles
An APP entity must not do an act, or engage in a practice, that breaches an Australian Privacy Principle.” (emphasis included)
Comcare as an APP entity is required to adhere to the Privacy Act 1988 when arranging IME appointments under s57 SRC Act, and thus Comcare should not be willingly breaching any of the Australian Privacy principles as it is a breach of the Privacy Act 1988.
As noted by me to the Member, Comcare should book an appointment, and I will attend.
By email sent on 4 October 2024, the Respondent replied it could accommodate an examination commencing at 2pm but maintained its requirement on behalf of Dr Jungfer that the Applicant agree not to make her own personal recording of what was said during the examination and that a recording be made by an independent transcriber. The Respondent put forward reasons for why that course was reasonable including that it would enable the Applicant, the Respondent and the Tribunal “to resolve any potential different recollections that may arise about the words spoken during the examination.”
The Respondent repeated its assurance that the independent recording would be stored appropriately. The Respondent referred to a decision of the Western Australian Supreme Court, Longbottom v Nulis Nominees (Australia) Ltd [2020] WASC 21 at [4] and [9] where the Court endorsed that the reasonableness of a requirement that an examination not be recorded by the person being examined can be based upon an opinion to that effect of the examining psychiatrist. The Respondent stated Dr Jungfer held that opinion.
The Respondent set out six questions to which it sought the Applicant’s ‘yes no’ response. The questions were as follows:
(i)Do you agree to attend an appointment with Dr Jungfer on Tuesday, 15 October 2024 at 2pm by Zoom and to attempt to answer the questions Dr Jungfer asks?
(ii)[If “Yes” to question 1] Will you arrange your own support person, being one of your treating practitioners, to attend an appointment with Dr Jungfer on Tuesday, 15 October 2024 at 2pm by Zoom, and will you give that person all necessary details including the Zoom link and the payment details that Comcare has previously told you about and ask your support person to send their invoices to Comcare for any examination that occurs and that they attend?
(iii)Will you advise Comcare as soon as possible in advance if either you or your support person can no longer attend the appointment with Dr Jungfer on Tuesday, 15 October 2024 at 2pm by Zoom?
(iv)Do you agree to provide any consents that Dr Jungfer considers necessary for the examination to be successfully completed, for example consenting that you understand that Dr Jungfer is not a treating practitioner providing you with medical advice, but rather an independent assessor?
(v)Do you consent to the appointment with Dr Jungfer being recorded by a professional transcription service? Please note the professional transcription service will not be given authority by Comcare to use the recording for any unrelated purpose. Comcare is bound by the Privacy Act 1988. Please also note that the AAT uses a professional transcription service.
(vi)Do you agree not to record the examination with Dr Jungfer?
The fifth and sixth questions repeated the substance of the five questions in the Respondent’s letter dated 1 October 2024, save for separating the content of previous question 5 into two separate questions.
By email sent on 8 October 2024, the Applicant replied that she would attend the appointment and that she would “attempt to answer the questions posed”. The Applicant stated she was “extremely overwhelmed and unwell about this IME”, and that she did “not at all trust Comcare to not take advantage of me.” The Applicant did not answer any of the Respondent’s six questions, but asked the Respondent to –
confirm the IME appointment with the IME and I will attend with my support person without obstruction so that my suspension can be lifted.
By email sent on 9 October 2024, the Respondent sent a reply to the Applicant stating it “remains the case that any appointment must be professionally recorded for the reasons explained before”. It noted the absence of “positive answers to questions 5 and 6”. It noted the unlikelihood that the Applicant would proceed with the examination if a professional transcriber was present. It noted the prospect of the Applicant making her own private recording, given the arrangement for the Applicant to participate in the examination by video (Zoom).
The Respondent stated it therefore saw a lack of utility in arranging for Dr Jungfer, the transcriber and the Applicant’s support person to set aside time for the examination where she had not agreed to the proposed arrangements. The Respondent stated that if the Applicant advised by 3pm that day that she was agreeable to an independent transcription and agreed not to make a separate recording, it would enquire as to whether Epiq, the professional transcribing service used by the Tribunal for recording its proceedings, would be available to make the recording on 15 October and, if so, arrange for the examination to proceed.
By email sent on 9 October 2024, the Applicant replied that she remained willing to attend and to do “what I am lawfully required to do”. The Applicant protested about the short timeframe in which she was given to reply. She added -
If you continue to force me to waive away my rights, it will only be made under duress.
The reference to waiving her rights was, as I understood it, a reference to the above- mentioned rights the Applicant contended she had under the Privacy Act.
By email sent on 10 October 2024, the Respondent informed the Applicant the examination scheduled for 15 October 2024 would not commence because there would need to be a professional transcriber at the examination and the Applicant had not agreed to participate with the presence of a professional transcriber and had not agreed not to make her own recording.
By email sent on 11 October 2024, the Applicant confirmed she wished to attend the examination so she could “become unsuspended”, but did not want to consent “to requirements or procedures that the SRC Act does not require me to do.” She contended
that if Dr Jungfer did not “feel comfortable performing examination without a recording, well that is a matter for Dr Jungfer and I would suggest in that case Comcare may need to find [another] doctor”.
By email sent on 14 October 2024, in response to the Respondent stating it would not proceed with the examination without the Applicant’s consent to it being recorded and without the Applicant’s agreement not to make her own recording, and that for those reasons “there will not be an examination on 15 October” the Applicant wrote:
That is totally unreasonable, it brings up the question of my suspicion that Dr Jungfer’s opinion has already been confirmed and hence why, Comcare and yourself continue to act so oppressively towards me.
You literally denied me the chance to become unsuspended because I did not waive my rights and bow to your unreasonable demands.
By email sent on 16 October 2024, the Respondent wrote to the Applicant, noting the impasse between the parties and confirming the examination would be conducted if and when the Applicant answered yes to the six questions posed.
By email sent on 16 October 2024, the Respondent wrote to the Tribunal requesting the resumed hearing of its dismissal application be deferred until 22 November 2024 to allow additional time for the parties to attempt to agree on the parameters for an examination. It informed the Tribunal it was not proposing to schedule an examination until the Applicant agreed to there being a professional transcription service at the examination and agreed not to make her own separate recording.
By email sent on 17 October 2024, the Applicant wrote to the Tribunal in response to the Respondent’s email the previous day in which she stated, among other things:
Comcare states that further time is needed to “agree on the parameters” however I do not need to agree to any parameters. I cannot be asked to waive my legal rights as an Australian citizen to appease Comcare’s oppressive practices.
Comcare provided me a date and time of 15 October 2024 at 1:30pm as an available appointment. I checked with my support persons and I was able to get a support person on this date at 2pm. Comcare agreed that the appointment could go ahead at 2pm 15 October 2024, however Comcare fell short of actually booking the appointment.
All that was left for Comcare to do was book the appointment and send me the zoom link, however, Comcare failed to book the appointment.
Member Webb was quite clear that he expected Comcare to book an appointment before 25 October and if they did not he would consider setting aside their application to dismiss my matters. There is no utility in an adjournment other than to prolong my suspension which is not something I wish to occur.
I simply wish for Comcare to book an appointment with an IME so I can attend and become unsuspended.
Comcare are clearly refusing to do so, thus I believe they need to explain their actions to Member Webb sooner rather than later.
By email to the Tribunal in reply, the Respondent stated it did not (now) ask for deferral of its dismissal application and was ready to proceed.
At the hearing on 25 October 2024, the parties maintained their respective positions. The Respondent made clear that the independent professional transcription “is the very thing that will not be revisited”.7 The Applicant confirmed she would go to the appointment but the recording of the examination “will not be with my consent”.8
After the Tribunal ordered that the information about to be provided by the Respondent could not be disclosed outside the proceedings that day, the Respondent gave reasons for why Dr Jungfer required the examination to be recorded by a professional independent transcriber.9 Those reasons included the complaints the Applicant has made against Dr Jungfer to the HCCC and to the Australian Health Practitioners Regulation Authority (AHPRA). The Applicant denied the truth of some of the claims made about her.10
The Tribunal commented:
Well, you’ve heard the explanation that Ms Wright has given for Comcare as to their insistence upon a third-party recording and transcription of the examination; that, you also heard, is going to be a condition that is going to be insisted upon with the
7 Transcript of proceedings, 25 October 2024, page 11, lines 22-28
8 Transcript of proceedings, 25 October 2024, page 8, line 6
9 Transcript of proceedings, 25 October 2024, page 12, line 19 – page 14, line 17
10 Transcript of proceedings, 25 October 2024, page 14, line 24 – page 15, line 36
other five conditions. It’s a matter for you whether you’re going to agree to undergo such an appointment having heard all this discussion.11
At the hearing on 25 October 2024, Senior Member Webb explained to the Applicant that the examination was not similar to a private consultation with her own doctor. In response to the Applicant saying she would not consent to the recording, Senior Member Webb said:
Well, there’s a couple of things with that . The first is the statement of the obvious and that is it’s an independent medical examination that’s been arranged in the context of your claims for compensation, so it’s not the same sort of thing as you privately consulting a doctor, this is for purposes related to claims for compensation. The second thing is that, with respect to recordings, whichever way it goes, this has basically caused … the whole issue of this examination to go into a bit of a hole. The point here is that you are presently suspended - all your rights to compensation are suspended until you undergo, as you know, the examination that was notified to you. There is no provision there for you to record it or for it to be recorded by anyone else. ..
These issues, so long as they continue, are going to prevent the lifting of the suspension. It’s a matter for you.
…
Now, you can argue about rights but that’s not the issue here.
..
You’ve heard what I’ve said about obstruction and that covert recording of something like that may well amount to obstruction, but that’s for another day. The point here is about the suspension; if the suspension remains in place without you undergoing an examination, all of the matters in the Tribunal will ultimately be dismissed. It’s as simple as that.12
After hearing from the Tribunal, the Applicant agreed not to make a recording of her own but maintained “I don’t want them to do a transcription either”.13
In an effort to resolve the Applicant’s concerns, the Respondent confirmed that if there was to be a transcript of the examination the Applicant would be given a copy.14 The Tribunal
11 Transcript of proceedings, 25 October 2024, page 15, lines 39 - 44
12 Transcript of proceedings, 25 October 2024, page 8, line 8 – page 9, line 2
13 Transcript of proceedings, 25 October 2024, page 9, lines 10-11
14 Transcript of proceedings, 25 October 2024, page 18, lines 22-25
stated that any recording and transcription given to the Tribunal would be placed “under the protection of the proceedings to ensure that it cannot be used for any other purpose”.15
The hearing on 25 October 2024 concluded with the Tribunal again adjourning the Respondent’s dismissal application, this time to 19 November 2024, in order to give the Applicant “time so you can consider your position”.16
By letter dated 28 October 2024, the Respondent wrote to the Applicant restating the six questions to which it had previously sought a response before it would seek to arrange another date for an examination.
On 22 November 2024, as an attachment to her written submissions provided to the Tribunal that day, the Applicant provided a copy of the Respondent’s letter dated 28 October 2024 on which she ticked the “Yes” box in response to the six questions but qualified her answers.
In response to question 4, asking whether she agreed “to provide any consents that Dr Jungfer considers necessary for the examination to be successfully completed”, the Applicant struck out the word “any” and commented “I have answered yes however “any” is very broad and I have crossed that out.” In other words, the Applicant was reserving the option to decide what consents she would give for the purpose of the examination, regardless of whether Dr Jungfer thought them necessary.
In response to question 5, asking if she consented to the appointment with Dr Jungfer being recorded by Epiq, the Applicant ticked the “Yes” box but added the following notation:
Agreed to under duress as Comcare has advised that it is not booking an appointment to lift the suspension unless I consent to this recording.
The further hearing of the Respondent’s dismissal application was rescheduled from 19 to 22 November 2024.
15 Transcript of proceedings, 25 October 2024, page 18, line 35 – page 20, line 24
16 Transcript of proceedings, 25 October 2024, page 20, lines 6-7
In its further submissions regarding dismissal dated 15 November 2024, the Respondent submitted the Applicant’s application should be dismissed consequent on the Applicant not agreeing to the examination occurring in the way the Respondent sought. It noted the Applicant was still yet to undergo an examination as required under section 57 with the result that the Applicant’s applications to the Tribunal have not been able to proceed in any meaningful way since 2022. The Respondent relied also on the suspension of the Applicant’s compensation rights since 20 June 2024.
The Respondent submitted “the appropriate parameters for a further examination is not within the ART’s jurisdiction”, firstly because the ART proceedings cannot continue and secondly, even if they could, merits review of that process is not available. The Respondent noted its dismissal application remained undecided despite two hearings on 15 September and 25 October 2024.
The Respondent submitted that if its dismissal application is dismissed, the Applicant’s applications will “return to the state” they were in prior to the Respondent making its dismissal application, namely they cannot continue because the Applicant refuses to undergo an examination within the parameters proposed by the Respondent.
In a lengthy submission comprising 11 pages and three attachments sent by email to the Tribunal on the morning of the hearing (22 November 2024), the Applicant maintained her position. I have read and considered the whole of the submission, which included several key propositions. The Applicant stated, among other things:
… I am not required to consent or agree to these “ancillary concerns” that Comcare put forward. Under section 57 of the SRC Act, I am required to attend an IME examination at the behest of Comcare whether I consent to it or not. By equal measure, if Comcare is entitled to record the IME appointment as it claims to have the legal authority to do so, then my consent is irrelevant. If Comcare’s position is
that it requires my consent, then Comcare cannot claim to have authority to record the examination, and it must proceed with the examination on the basis that it does not have my consent to record it. Just because Comcare wants to record the examination does not give it any authority to do so, and this was affirmed by Senior Member Webb who pointed out that it is not ordinarily practice for Comcare to perform a court transcript type recording of a medical examination.
..
Section 57(1) of the SRC Act requires that I attend an examination, and that I do not obstruct the examination in any way. That is all I am obligated to do as per the law.
I am not obligated to consent to certain processes or procedures, I am not obligated to say or do certain things, all I am required to do is attend the examination and ensure that I do not obstruct the examination in any way.
.. I just wanted it to be noted that I was consenting against my will (under duress) as I was being forced by Comcare into consenting to something that I do not want to provide consent for, nor does the law require me to provide consent for it.
I genuinely do not know what more I can do to appease these people other than lie to them so that they can do whatever they want to do.
… If Dr Jungfer is wanting to impose these demands upon me that I apparently must consent to before she is willing to conduct an examination, Comcare is free to choose another doctor who is willing to perform the examination without all these “ancillary” requirements. … As to why Comcare was unwilling to engage the services of an alternative doctor, Comcare stated two reasons:
Taking up the (precious) time of an alternative psychiatrist in a market where it is difficult to find a psychiatrist
A sunken cost, claiming that Dr Jungfer have been paid money to review certain information before the examination, and if this task needed to occur again with a different psychiatrist, this would lead to an unnecessary expense incurred by the public.
These reasons ... are thinly veiled. Comcare has a booking system that they log in to and they have several psychiatrists available to book every single day.
The second reason, the costs, assuredly has no merit. ... This is beyond unreasonable, anyone with a small amount of common sense can see that the legal resources being poured into trying to have these applications withdrawn far exceeds the cost to utilise a different doctor. Comcare are lying to the Tribunal, and I feel that the Tribunal is not seeing through their lies.
I had to ask myself why are Comcare so insistent on using Dr Jungfer for the examination? … I believe that Dr Jungfer is a “hired gun” doctor who has been deliberately headhunted by Comcare to say what they want her to say.
At the start I mentioned the Tribunal’s overarching objective, and I emphasised fair and just, and promotes public trust and confidence in the Tribunal. If [the Tribunal] withdraws my matters before I have even been provided an opportunity to attend another appointment, that would be incredibly unfair and unjust. The question must be asked by Senior Member: “who is the blocker in this situation?”. The blocker is Comcare.
..
The Tribunal’s power to withdraw my applications is a discretionary power. .. You may also not exercise this discretionary power and instead tell Comcare to book an appointment so I can attend and become unsuspended. This is what Senior Member Webb has done to date, but Comcare keep refusing to book the appointment.
Senior Member you have the power to force Comcare into acting as a model litigant. Please do not withdraw my matters, force Comcare to either book an appointment so that I can attend and become unsuspended or continue to make interlocutory hearings which will eventually force Comcare to book an appointment anyway as they will not be able to justify the unnecessary costs of fighting to get the matters withdrawn as opposed to simply booking an appointment for me to attend. We can have 300 interlocutory hearings, and Comcare can spend millions of dollars trying to get these proceedings withdrawn, or they can simply book an appointment for me to attend ..
In Charara v Commissioner of Taxation [2016] FCA 451 His Honour, Wigney J, set out conditions that he stated are required for a section 42A(5) AAT Act withdrawal to occur (and this maps to a section 100 ART Act withdrawal).
His Honour most pertinently stated that “The discretion must only be exercised sparingly and as a matter of “last resort””. The Tribunal cannot be satisfied that it is at a point of last resort, because I have not been afforded an opportunity to attend an appointment and not obstruct it, as per my legal requirements.
..
Comcare keeps shifting the goal posts, I arrange a time with them, they send me a checklist to complete. When I complete the checklist, Comcare then says I did not complete the checklist good enough. Comcare perpetually finds some reason to not book the appointment.
If the Tribunal withdraws my matters, I will remain suspended indefinitely because I will no longer have a reason or requirement to go to an appointment, thus Comcare will never book an appointment and I will continue to be financially disadvantaged forever because of Comcare exploiting these legal technicalities.
They claim if my matters are withdrawn a Comcare delegate may make a decision to unsuspended me, but under what section of the SRC Act? There exists no decision for Comcare to make to unsuspended me,17 therefore it is entirely clear that this is a sinister plot by Comcare to ensure that I can never meet their expectations because they keep moving the goal posts.
17 I do not agree. Comcare could make a decision to withdraw the notice, following which there would no longer be a notice with which the Applicant was required to comply and the suspension would no longer be operative. Whether to make such a decision is a matter for Comcare
What is the quickest, cheapest, easiest and most importantly just (fair) path from here? They need to book an appointment and allow me to attend so I can become unsuspended.
At the hearing on 22 November 2024, the Respondent repeated the substance of its written submissions dated 25 September and 15 November 2024. The Respondent submitted that to make an independent professional recording of the examination was reasonable because it would alleviate the Applicant’s need to make her own recording; Dr Jungfer considered it necessary to make the recording; and the Tribunal would have an independent record of what was said during the examination to assist in resolving any dispute arising from Dr Jungfer’s report.
Whilst submitting the Tribunal has no jurisdiction to review the merits of the Respondent’s proposed arrangements for the examination, the Respondent acknowledged the Tribunal can consider whether those arrangements are objectively reasonable for the purpose of determining whether the Applicant’s applications should be dismissed. From there, the Respondent submitted the requirements are objectively reasonable.
The Applicant confirmed her position, as set out in her submission sent earlier that morning. She added a further concern about feeling extremely uncomfortable about not knowing whether the person who would be making the recording would be a man or a woman. The Applicant spoke about how overwhelming she would find it to know somebody was listening to what she and Dr Jungfer said during the examination. She spoke about the abusive manner (as she perceived it) of previous doctors in previous IME’s and the opinion of her psychiatrist (Dr Singh) that a further IME is likely to cause further injury.18 She repeated her submission that under the SRC Act, the Respondent is not entitled to record the examination and that all it needed to do was book an appointment for the examination and she would then attend. The Applicant relied on Senior Member Webb’s characterisation of the Respondent’s requirements, per its six questions, as “ancillary concerns”.
Mr Harris, who attended the hearing on 22 November 2024 as the Applicant’s support person, repeated the submission that the Respondent had no legislative basis for requiring the Applicant to give the consents sought, per its six questions. Mr Harris raised the question
18 I presume this to be a reference to Dr Singh's letter dated 31 May 2024
as to who decides what is reasonable, in terms of arrangements for the examination. He asked, rhetorically, what would occur if the Applicant was required to eat 10 bowls of noodles before attending the examination or to fly a rocket to the moon. Mr Harris spoke about how harmful it can be to extract a consent from someone, in this case the Applicant, to something they do not wish to consent to but have little or no choice by reason of wider circumstances.
Consideration
The power under section 100 of the ART Act is exercisable if the Applicant fails to proceed with the applications she has made “within a reasonable time”. The first question, therefore, is what constitutes a reasonable time.
Whilst the Guide is likely no longer applicable, it being a document issued by the AAT which no longer exists, in my view it still provides a useful frame of reference because section 100 of the ART Act is materially the same as section 42A(5) of the AAT Act. In particular, regarding the power to dismiss, paragraph 6.5 states the Tribunal “will consider whether or not to dismiss the application” if the Tribunal is not advised within a period of 3 months following suspension of their compensation rights that the person has undergone the examination.
In this case, well in excess of three months has passed. The Applicant’s compensation rights were suspended on 20 June 2024 and the proceedings in this Tribunal were stayed on 24 July 2024. On 22 November 2024, the Applicant had still not undergone the examination and there continues to be no prospect of her willingly doing so within the parameters required by the Respondent.
Whilst the passage of time is a relevant consideration, when determining whether to dismiss, it is not the only consideration. By reason of the word “may”, the power to dismiss is discretionary. In my view, all relevant considerations need to be taken into account.
Whilst the Applicant has been objecting to attending a further IME since 2022, for the purpose of determining whether her applications to the Tribunal should be dismissed I have focused on the circumstances of her non-attendance at the IME scheduled for 3 June 2024 that led to the suspension of her compensation rights and on the subsequent unsuccessful attempts to arrange an examination.
For the reasons explained by Senior Member Webb in his decision made on 24 July 2024, with which I agree, the Tribunal does not have jurisdiction to review the merits of the decision to suspend but it can (and in my view should) consider the facts and circumstances concerning her non-attendance, among other considerations, for the purpose of determining the dismissal application.
In particular, the Tribunal can review the question whether the jurisdictional facts for the suspension existed, for the purpose of determining whether to grant the dismissal application, including whether the Applicant had a reasonable excuse for not attending any of the scheduled and intended examinations.
I draw support for that view from the following observations of the Tribunal in Von Stieglitz and Comcare [2012] AATA 2012:
If Ms von Stieglitz refuses or fails to undergo the examination and seeks to advance her review proceedings, it will then be necessary for the Tribunal to determine whether or not it has jurisdiction to proceed with her application. In that context, and for that purpose, alone, it will be necessary for the Tribunal to determine the jurisdictional facts, namely whether Ms von Stieglitz refused or failed to undergo a medical examination required under s 57(1) , and if so, whether she had a reasonable excuse for refusing or failing to do so in the particular circumstances, having regard to the “text, context and purpose” of the section.19
The relevant principles for the purpose of deciding whether a person has a reasonable excuse for not attending an examination are set out by DP Kendall in NRJT v Australian Offshore Solutions Pty Ltd [2015] AATA 588 (NRJT), albeit in the context of section 66(2) of the Seafarers Rehabilitation and Compensation Act 1991 which is materially identical to section 57(2) of the SRC Act.
In NRJT, DP Kendall said:
THE MEANING OF “REASONABLE EXCUSE”
“Reasonable excuse” is not defined in the Act. There is, however, considerable authority on this issue. As always, the meaning and effect of the phrase is fact specific.
19 [2012] AATA 2012 at [29]
In Fazlic v Milinginbi Community Inc 38 ALR 424 the High Court considered whether an applicant’s refusal to have a recommended operation to his injured back should have resulted in his losing his entitlement to further compensation payments as had been held by the Supreme Court of the Northern Territory and the Federal Court. The High Court allowed the applicant’s appeal on the basis that the reasonableness of the applicant’s refusal, judged in the light of his knowledge at the time, is the criterion to determine whether that refusal was reasonable. The court held that the applicant had been given minimum information and in the light of that minimum information about the operation his refusal to undergo the operation was a reasonable refusal.
In Taikato v The Queen [1996] HCA 28; (1996) 186, the High Court held the question of whether there is a “reasonable excuse” depends upon the circumstances of the individual case and also upon the purpose of the provision which has a defence of reasonable excuse:
[18] A reasonable excuse is no more or less than an excuse which would be accepted by a reasonable person. It is different from a lawful excuse but, as has already been noted, it is difficult to conceive of an unlawful purpose which would constitute a reasonable excuse. Reasonableness provides a test which is well-known in both criminal and civil law and, though it may involve a judgment of degree, has a ready application in widely differing circumstances. The fact that the test of reasonableness frequently involves a question of degree so that minds may differ upon the answer does not relieve a tribunal of the duty to apply the test where that is the test laid down and does not justify confining its scope for the sake of greater precision or certainty.
Whether the refusal or failure to attend a medical examination may be excused because the refusal or failure was reasonable is to be assessed on an objective basis. In McKinnon v Commonwealth [1999] FCA 717 the Federal Court stated:
There is nothing in the judgment, nor would I expect there to be, which would support a proposition that a plaintiff could succeed in resisting an examination merely because he believed in good faith that the examination might be detrimental to him. A different view would necessarily follow if the examination was one which involved a real risk of injury to health and was seen as such by the plaintiff. The more severe the risk, no doubt, the greater it would overweigh the interests of the defendant. The less severe, the more difficult the balancing process. If the risk is such that it is so very slight as not to constitute a real risk, an applicant's fears about the suggested risk would not outweigh the interests of justice that a defendant be entitled to defend his case as he thinks fit. However, I would accept the proposition that once the risk is a real one, then the Court would be slow indeed to impose it upon a plaintiff, if ever.
In Pascoe v Australian Postal Corporation (2004) 77 ALD 464, the Full Court reaffirmed what the Full Court had said in an earlier decision (Australian Postal Corporation v Forgie (2003) 130 FCR 279); ie, that the Act “requires that the person at least consider the circumstances surrounding the employee’s failure or refusal to
undertake a rehabilitation program and to evaluate what is reasonable in the circumstances”.20
I begin with the Applicant’s claim that it was unreasonable for the Respondent to give her a notice on 28 May 2024 pursuant to section 57(1) of the SRC Act requiring her to undergo an examination four days later, on 3 June 2024. That claim lacks substance once put in context. On the evidence, the Applicant had known about the proposed examination and the time and date on which it was scheduled since 17 March 2024. She received reminders about it on 17 and 28 May 2024. The notice did nothing more than require her to attend an examination that she had known about for more than 2 months. Also, two months was ample time for her to arrange with Mr Heard for him to attend as her support person.
The Applicant’s claim that she could not undergo the examination on 3 June 2024 in the absence of her support person, Mr Heard, and that fault lay with the Respondent and Dr Jungfer for not providing the Zoom link to enable him to be present is disingenuous. The email correspondence between the Applicant and the Respondent’s solicitor makes plain the link was not provided to Mr Heard, despite the Respondent’s solicitor offering to provide it, because the Applicant stated in her email to the Respondent’s solicitor sent on 31 May 2024 that it was not required. What the Applicant intended by saying the link was not required “at this stage”, three days before the examination, is unclear but if she wanted Mr Heard to attend and to be provided a link to enable him to do so, she only needed to ask.
For the Applicant to rely on Dr Jungfer’s apology for not sending the link to Mr Heard so he could join the examination, implicitly suggesting it should have been sent, is also disingenuous. The apology is explained by Dr Jungfer thinking (at the time of the apology) that Mr Heard should have been sent a link and was expecting a link, without Dr Jungfer knowing the Applicant had told the Respondent’s solicitor three days earlier “no arrangement is required for the link to be sent to my support person”.
In my view, having caused Mr Heard to be absent from the examination by telling the Respondent’s solicitor no link to her support person was required, the Applicant could not then reasonably rely upon his absence for why she could not participate.
20 [2015] AATA 588 at [56] – [60]
Mr Heard’s claim in his email sent on 3 June 2024 at 12.20pm that he had received no information from the Respondent’s solicitor “whatsoever” about the intended examination needs to be put in context. True, he may not have received communication from the Respondent’s solicitor but that was consequent on the Respondent’s solicitor’s understanding that the Applicant did not wish the Respondent’s solicitor to communicate directly with Mr Heard. Also, Mr Heard was well aware of the scheduled examination, the date and time for the examination and that he was invited to attend because, on 22 May 2024, Dr Jungfer sent him a link inviting him to the scheduled Zoom meeting.
Mr Heard was the Applicant’s support person. She knew about the scheduled examination from 17 March 2024. If she wanted Mr Heard to attend, she could and should have arranged for that to occur.
Also, Mr Heard never said he would not be available. A week prior to the scheduled examination he sought “clarification” regarding issues previously stated before accepting the invitation. The Respondent had already advised the Applicant it agreed to pay Mr Heard’s reasonable expenses. The issues about which Mr Heard sought clarification could have been readily resolved prior to the scheduled examination.
The Applicant’s claim about Mr Heard not being provided documents for the purpose of the examination is also disingenuous. The Applicant had the documents and if she wished Mr Heard to have them she could have forwarded them to him or asked the Respondent’s solicitor to send them to him. Assuming Mr Heard did not have the documents, it follows the Applicant did neither.
In the absence of a clear request that it do so, I do not accept the Respondent had responsibility for sending documents to Mr Heard where Mr Heard’s sole role was to support the Applicant in such manner as she sought. It was the prerogative if not the right of the Applicant to decide what documents Mr Heard should receive and for the Applicant then to send them to him or arrange for them to be sent.
For these reasons, I do not accept Mr Heard’s non-attendance at the examination on 3 June 2024 was a reasonable excuse for the Applicant not attending.
I turn to the Respondent’s second attempt to schedule an examination, this time on 13 September 2024.
The Respondent’s decision not to proceed with the available appointment on that date needs to be put in context. There is no suggestion the Applicant, personally, was not able to attend the appointment that day. The Respondent agreed to Mr Heard also to attend as a “modification” to the examination, but there was no requirement on the Respondent to accommodate Mr Heard’s attendance. In my view, the Applicant takes the Respondent’s and Dr Jungfer’s agreement for Mr Heard to attend the examination as the Applicant’s support person, by way of a modification to the examination of the Applicant, and wrongly converts that agreement into a right not to attend without Mr Heard and a right to attend only when Mr Heard is available. The Applicant had no such rights.
Nevertheless, I can accept the proposition that not to accommodate a support person’s availability might not be reasonable depending on the facts. For example, if Dr Jungfer had wide availability and Mr Heard was available on any date except (say) one or two stated dates, it might well be unreasonable to schedule the examination on one of those stated dates if there were mutually available dates. In this matter, however, the reverse was the case. The Respondent and Dr Jungfer were willing to discuss appointment times suitable to Mr Heard, but could not accommodate his attendance where the Applicant stated he would be available only on a Monday and only after 2pm. Accordingly, the Applicant’s position that she would not attend the examination without Mr Heard prevented the examination.
This circumstance begged the question whether Mr Heard’s unavailability on 13 September 2024 was a reasonable excuse for the Applicant’s refusal to attend the proposed examination on that day. In my view, it was not. Determinative of the question, in my view, is the statutory obligation on the Applicant to undergo an examination by a medical practitioner “nominated” by the Respondent. Where, on the evidence, there was no realistic prospect of Dr Jungfer being available to examine the Applicant on a Monday after 2pm, Mr Heard’s unavailability was not a reasonable excuse for the Applicant not attending the proposed appointment on 13 September 2024.
The Applicant’s claim that the Respondent should have resolved the problem by finding another psychiatrist available to conduct the examination at a time convenient to Mr Heard was not persuasive.
First, section 57(1) entitles the Respondent to require the Applicant to undergo an examination by a practitioner “nominated by the relevant authority”, and in this case Dr Jungfer. As the Tribunal pointed out in Guerriero and Comcare [2017] AATA 2984, the fact that a different practitioner could have been nominated or that an employee would prefer to be examined by a different practitioner does not give the employee a reasonable excuse for not attending a section 57 examination by a practitioner nominated by the authority.21
Second, on the facts, it was in my view reasonable for the Respondent to maintain its wish that Dr Jungfer conduct the examination, having regard to her long prior knowledge of the Applicant and her circumstances, rather than starting afresh with a new psychiatrist that would entail substantial additional time and consequential expense of public money.
I reject the scandalous suggestion that the Respondent insists on Dr Jungfer conducting the examination because Dr Jungfer is a ‘hired gun’ headhunted by Comcare to say what they want her to say.
I turn to the Applicant’s claim that to undergo a further IME risked causing the Applicant further injury. Considerations of this kind require balance. In NRJT, DP Kendall said:
66. As noted in Re Twaddell and Comcare (2001) 65 ALD 794 “the context of a medico-legal examination organised by the opposing party is almost always going to be an uncomfortable and potentially unpleasant experience for an applicant.”
67. This does not mean, however, that non-attendance is reasonable. There is no evidence to suggest that, had the Applicant requested that a friend or doctor attend with him at the offices of Dr Terace on 15 July 2014, Offshore Solutions would have refused such a request.
Clearly the Applicant did not want to participate in another examination by Dr Jungfer and anticipated it would be an unpleasant experience, but I was not persuaded that her participating in a further examination would cause or risked causing her further injury. In
21 [2017] AATA 2984 at [29]
support of that claim, the Applicant relied primarily on the letter from Dr Singh, psychiatrist, dated 31 May 2024, but I was not prepared to give it significant weight. Dr Singh does not claim a further examination risked injury. Rather, Dr Singh requested consideration be given to avoid any further IME assessments, “given the potential chance of further escalating [the Applicant’s] psychological distress.” Also, the letter was written in the context of a phone call from the Applicant earlier that day in which she expressed her distress “if asked” to attend any further IME assessments in circumstances where she was already required under section 57 to attend an examination three days later. There is no suggestion Dr Singh was aware of that context when he spoke with the Applicant.
I turn to the Respondent’s third attempt to schedule an examination, this time on 15 October 2024.
The main sticking point was the Applicant not agreeing not to make a personal recording of what was said during the examination and not agreeing to the examination being recorded by an independent professional transcriber. The Applicant’s correspondence culminating in her ticking ‘Yes’ to the six questions, coupled with a statement that her consent to the independent recording was given “under duress”. In her written submissions provided on 22 November 2024, the applicant described her consent as a “lie”. In other words, her consent was not consent at all.
Understandably, the Respondent was not willing to schedule the appointment on that basis. Indeed, in my view, it would have been improper for the Respondent to do so. Almost certainly, any report produced would not have been admissible in these proceedings where the information relied on for the purpose of preparing the report had not been obtained with the Applicant’s consent.22
Where the Applicant would not agree not to make her own personal recording of the examination, or consent to an independent transcription of the examination, the question is whether those conditions of the examination were reasonable.
22 Re Salters and Telstra Corporation Limited [2000] AATA 734; Re Twaddell and Comcare [2001] AATA 759
The Respondent relied on a decision of the Supreme Court of Western Australia in Longbottom v Nullis Nominees (Australia) Ltd23 in which the Court considered a circumstance where a plaintiff was willing to undergo a medical examination but wished to make an audio recording of it and the examining doctor, “in the exercise of her professional judgement”,24 opposed the plaintiff doing so. The examining doctor made clear that if the plaintiff attempted to record the examination, she would terminate the assessment. The effect would be to prevent the defendant from obtaining the examining doctor’s opinion.
The Court considered the question to be whether it was in the interests of justice to permit the plaintiff make the recording. Notwithstanding its recognition of the evidentiary benefits of a recording, the Court found the professional view of the doctor to be “decisive”.25 In other words, the Court recognised that if the plaintiff insisted on recording the examination the examination would not proceed and the defendant’s ability to obtain an expert report would be denied. Where that outcome would defeat the defendant’s right to have the plaintiff examined, the doctor’s opinion was “decisive”.
The facts in this case are somewhat different in that Dr Jungfer wants the recording, but for it to be done by an independent professional transcriber, and for the Applicant not to make her own recording. Having regard to the confidential evidence given at the hearing on 25 October 2024, the complaint the Applicant has made to the HCCC about Dr Jungfer and the stated animosity the Applicant has for Dr Jungfer, these requirements by Dr Jungfer are, in my view, reasonable.
I appreciate the Applicant disputes or denies the Respondent’s claims regarding her conduct giving rise to Dr Jungfer and the Respondent wanting the independent recording, but the detail of what occurred or did not occur is not to the point. What matters is that the Applicant’s conduct, as Dr Jungfer perceived it, underpins her opinion about the need for an independent recording and her unwillingness to conduct the examination without it. In my view, Dr Jungfer’s opinion is decisive. If the examination is not independently recorded, Dr Jungfer will not conduct the examination and the Respondent’s wish to obtain an expert report from Dr Jungfer will be frustrated contrary to the Respondent’s statutory right to
23 [2020] WASC 21
24 [2020] WASC 21 at [9]
25 [2020] WASC 21 at [9]
require the Applicant to “undergo an examination by [Dr Jungfer] nominated by [the Respondent].”
In any event, I struggle with the logic of the Applicant wanting to make her own recording but opposing the making of a recording by an independent professional transcriber (Epiq) that records proceedings in Courts and Tribunals across Australia and where the Applicant would be provided with a copy of that recording.
The Applicant’s concern about not knowing who from Epiq would be making the recording, or whether the person would be a man or a woman was not persuasive. In accordance with their professional and contractual obligations, Epiq would not assign a person to make the recording or the transcript who had any personal knowledge of the Applicant or Dr Jungfer. The transcriber’s sole interest in the examination would be to make an accurate recording of what was said. I expect Epiq could have readily arranged for a female to make the recording if that were requested.
I turn to the Applicant’s unwillingness to ‘waive her rights’ under the Privacy Act 1988 (Cth) and the claim that to make the recording would breach the Surveillance Devices Act (NSW). In my view, those submissions are misconceived.
To pick up Mr Harris’ point on behalf of the Applicant, I accept the Respondent cannot force the Applicant to answer questions or to waive her rights under the Privacy Act. I accept too that to make the recording without the Applicant’s consent might well breach legislation, but the Respondent has never suggested it could or would make the recording without the Applicant’s consent. To the contrary, the Respondent is not willing to arrange an examination unless the Applicant consents to the recording and agrees to give any consents Dr Jungfer considers necessary for the purpose of the examination.
There is no suggestion the proposed recording would breach any legislative provision if it is made with the Applicant’s consent. Accordingly, it is unnecessary to consider whether a recording without the Applicant’s consent might breach legislation because the Respondent does not intend to record otherwise than with consent.
Analogies should be made with care, but the situation reminds me somewhat of a person having to consent to a body search and/or a search of their luggage in order to board a
plane or enter some premises. A person can choose not to consent, and the searches would then not proceed, but the person would not be permitted to board the plane or enter the premises. The choice is with the person.
So it is with the Applicant. She wants to attend the examination so she can become ‘unsuspended’. The Applicant can choose, as she has done, not to consent to the independent recording and not to agree not to make her own recording, but the consequence is the examination will not occur until she does so and the suspension therefore remains.
In Charara v Commissioner of Taxation [2016] FCA 451, relied on by the Applicant, Wigney J set out two principles relevant to the exercise of the discretion under s 42A(5) of the AAT Act, now section 100 of the ART Act, as follows:
[79] The discretion must only be exercised sparingly and as a matter of “last resort” (emphasis added): Guse v Comcare [1997] FCA 140; (1997) 49 ALD 288 at 291. That is because it involves denying an Applicant a hearing of the merits of the application. Because dismissal under s 42A(5) is a matter of last resort, the Tribunal must consider whether dismissal is the proper remedy, or whether it would be more appropriate to take some other course, such as adjourning the proceeding or making some other order to secure compliance: Guse v Comcare at 291. Again, a failure to do so would most likely constitute a misapplication of s 42A(5).
[80] In exercising the discretion, the Tribunal must also afford the Applicant procedural fairness (emphasis added): Guse v Comcare at 291. Procedural fairness would ordinarily require the Tribunal to give the Applicant the opportunity to make submissions as to why the discretion should not be exercised. That would include giving the Applicant an opportunity to put forward submissions concerning whether there had been a failure to comply with a direction and, if so, whether a reasonable time had elapsed since that failure. It would also ordinarily extend to giving the Applicant an opportunity to explain or justify any failure, or to advance any reasons why, despite the failure, the application should not be dismissed. Depending on the particular circumstances, it might also extend to giving the Applicant a further opportunity to comply or to remedy the default.
Referring to the first principle, I am satisfied dismissal is appropriate notwithstanding it being a matter of last resort. The Applicant refused to attend the examination on 3 June 2024 by reason of Mr Heard’s non-attendance that she engineered. The Applicant refused to attend the examination proposed for 13 September 2024 by reason of Mr Heard’s non-availability in circumstances where his attendance was not required, his availability was so limited as to preclude an examination with Dr Jungfer and the Applicant could readily have arranged for another support person to attend. The Applicant defeated the purpose of arranging the
examination proposed for 15 October 2024 by refusing to agree not to make a private recording, refusing to agree to an independent recording and not agreeing to provide any consents Dr Jungfer considered necessary for the examination to be successfully completed.
The Applicant maintained her position, notwithstanding suspension of her compensation rights, suspension of her right to continue these proceedings and an order staying these proceedings until she complied with the notice dated 28 May 2024 requiring her to attend an examination with Dr Jungfer.
Twice, the Tribunal adjourned the Respondent’s dismissal application to give the Applicant a further opportunity to comply with the notice. At the hearing on 25 October 2024, it informed her that her application would likely be dismissed if she did not comply yet her refusal to comply remained steadfast.
In her submission of 22 November 2024, the Applicant submitted the question to be asked is “who is the blocker in this situation?” and contended the blocker is Comcare by not agreeing to her demands that the examination occur at a time suitable to Mr Heard, by a doctor other than Dr Jungfer and in accordance with her wishes regarding the conduct of the examination including her reserving what consents she would provide for the purpose of the examination.
I do not agree Comcare is the blocker. The Applicant’s position misunderstands the statutory scheme, which contemplates that in return for payment of compensation and/or a right to institute or continue a proceeding under the SRC Act she must not refuse or fail, without reasonable excuse, to undergo an examination, or in any way obstruct an examination. The Respondent is not blocking the Applicant from undergoing an examination. Rather, it is not agreeing to her demands about the timing and conduct of the examination.
The Applicant can choose to refuse to attend an examination unless her demands are met, but the consequences follow. In circumstances where those consequences have been in place, now, for more than six months with no indication of the Applicant changing her position, I see no purpose in a further adjournment. To draw from her written submissions filed on 22 November 2024, the Applicant is willing to have “300 interlocutory hearings, and
Comcare [to] spend millions of dollars trying to get these proceedings withdrawn, or they can simply book an appointment for me to attend” - but an appointment on her terms not theirs.
To allow this stalemate to continue in the face of the many opportunities the Applicant has had to comply with the notice over more than six months, without any prospect of that changing, would be contrary to section 9 of the Administrative Review Tribunal Act 2024 which requires the Tribunal to pursue an objective of providing an independent mechanism of review that “ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits”.
Referring to the second principle stated in Charara, I am satisfied the Applicant has been afforded procedural fairness. She has been on notice of the Respondent’s dismissal application for months. Three times, it has heard from the Applicant on the question whether her applications should be dismissed. The Tribunal has received and taken into account her written submissions opposing dismissal of her applications. Opportunity to remedy the default by complying with the notice has twice been given but not taken.
For the purpose of deciding whether to grant or dismiss the dismissal application or grant a further adjournment, I gave consideration to the Applicant’s periodic claims that she felt overwhelmed by the whole process. I was not so persuaded. There is no medical evidence to support the claim, and the Applicant impressed me in her articulate written and oral submissions, and in her dealings with the Respondent, as capable, intelligent, tenacious and strategic.
At the end of the hearing, I reserved my decision. Notwithstanding, by emails sent on 25 November 2024, the Applicant provided further submissions as to why the dismissal application should be dismissed. The Respondent’s solicitor sent a response which generated a further email from the Applicant in which she alleged the respondent’s solicitor “has provided false and misleading information to you in her below email.”
Convention, at least, supports my disregarding all this further email correspondence sent without leave after the hearing was concluded and the decision was reserved. However, in the interest of completeness, I deal briefly with the issues.
First, the Applicant pressed her submission that no one is required to consent to a recording of a s 57 examination and relied on that lack of requirement to explain why she had given consent “under duress”. The Applicant relied on the submission of counsel for the Respondent that the Respondent had no legislative basis for requiring her to agree to the recording. I have dealt with this proposition. As I have said, and as Senior Member Webb said previously, it is not a matter of legislative power. It is a question of choice for the Applicant, and whether the requirement of an independent recording to be made available to both parties was reasonable. I am satisfied it was.
Second, the Applicant referred to the decision of DP Pascoe in Noronha and Comcare [2022] AATA 478 in which the Tribunal dismissed an applicant’s application consequent on their consistent failure to comply with a notice issued under section 57(2). With reliance on the decision, the Applicant correctly observed that to remove the section 52(2) suspension, she was “required” to comply with the notice. This, she said, proves counsel for the Respondent’s construction of section 57 that compliance with the notice “is informal and/or an optional opportunity” (to quote the Applicant) is “false and a complete and total error of law”. The Applicant did not identify where Ms Wright characterised compliance in that way or, if she did, the context in which it was stated, but in principle I disagree.
As discussed, and as demonstrated in Noronha, Comcare may “require” a person to undergo an examination in the sense they are not free not to undergo the examination without consequence, but the person cannot be forced to do so. They can disregard the requirement, but if they do their rights to compensation and their rights to institute or continue proceedings are suspended. Noronha, like this case, is an example of a situation where things reached a point where dismissal should occur because, to quote from the passage relied on by the Applicant, compliance with the notice “is not going to happen and there is no other way forward.”
The Applicant relied on Richmond and Comcare [2019] AATA 100 to contend the “threat of a suspension creates a sense of compulsion” to attend an examination and that counsel for the Respondent is “demonstrably wrong” to contend that if a person fails or refuses to attend a first scheduled examination the Respondent is under no legal obligation to book any further appointments for an examination that the Applicant could then attend and so ‘become unsuspended’.
The submission overlooks the facts. I accept the Respondent cannot schedule an initial appointment and then, if the person does not attend, suspend their rights and not make any further appointment thereby leaving the person suspended without opportunity to rectify the failure. But that is not this case. The Respondent repeatedly stated its wish to schedule a further appointment and twice offered proposed appointments, but the Applicant rejected the proposed appointment dates, steadfastly refused to agree to the proposed arrangements for the appointments (which in my view were reasonable) and made clear her refusal was “final”. I see no reason why the Respondent should continue to try and arrange an appointment where to do so would be purposeless.
In another email sent on 25 November 2024, the Applicant attached email screenshots to prove the Respondent’s solicitor and Dr Jungfer knew before the assessment scheduled for 3 June 2024 that Mr Heard was unavailable and ignored this ‘fact’ when proceeding then to suspend her compensation rights consequent on her refusal to attend the assessment. The Applicant attached and relied on the email correspondence, by way of an email chain, between Dr Jungfer and Mr Heard on 22, 24 and 27 May 2024 noted above, the last of which was copied to the Respondent’s solicitor.
The Applicant does not fairly characterise the emails. Mr Heard did not state he was unavailable. He stated he could not accept the invitation until the issues stated in his email of 24 May 2024 had been addressed. He concluded “I look forward to further clarification”. There is no evidence Dr Jungfer knew whether the issues were later addressed, and she reasonably presumed Mr Heard would join the examination in circumstances where she knew he was the Applicant’s intended support person.
Likewise, in my view, the Respondent’s solicitor properly offered to provide Mr Heard with the link to join the examination irrespective of whether the issues he wished to be addressed had been addressed. To do otherwise would have contradicted the Applicant’s wish for him to attend as her support person.
In any event, as discussed above, Mr Heard was put forward by the Applicant as her support person. If Mr Heard had concerns about information he needed for the meeting, or who to bill for his reasonable expenses the Respondent had agreed to pay, he could and should have raised those concerns with the Applicant. Likewise, as mentioned, the Applicant had known about the examination since 17 March 2024 and so had had more than two months
to enquire of Mr Heard about his availability and to check that anything precluding his attendance had been addressed.
For these reasons, the Applicant’s applications to this Tribunal will be dismissed.
I certify that the preceding 183 (one hundred and eighty- three) paragraphs are a true copy of the reasons for the decision herein of Senior Member G. McCarthy.
…………[SGD]………………. Associate
Dated: 24 January 2025
Date(s)ofhearing: 22 November 2024 Datefinalsubmissionsreceived:
22 November 2024
SolicitorforApplicant:
Self-represented
CounselforRespondent:
Ms S. Wright
SolicitorforRespondent:
Sparke Helmore
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7
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