Fogarty and Comcare

[2007] AATA 1299

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1299

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   A2006/1

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LORRAINE FOGARTY

Applicant

And   COMCARE

Respondent

DECISION

Tribunal J.W. Constance, Senior Member

Date3 May 2007

PlaceCanberra

Decision The application by Comcare to dismiss the application pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 is dismissed.

.....................................................

J.W. Constance, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE- whether application is vexatious and/or frivolous- whether any possible remedy would be futile- psychological effect of return to work plan a real issue

Administrative Appeals Tribunal Act 1975 (Cth) s 42B

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 37, 41, 62, 64

Re Fearnley and Australian Fisheries Management Authority (2006) 87 ALD 159

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

REASONS FOR DECISION

3 May 2007
J.W Constance, Senior Member

INTRODUCTION

1.      This is an application by Comcare to dismiss the application of Ms Fogarty on the ground that it is frivolous and/or vexatious. For the reasons which follow Comcare’s application will be refused.

FACTS

2.      Since 2003 Ms Fogarty has received compensation payments in respect of an injury she received in the course of her employment as a Finance Officer within the Cultural Facilities Corporation in the Australian Capital Territory.  In June 2004 Ms Fogarty commenced a Return to Work Plan.  This Plan was amended in March 2005.[1]  Under the amended plan Ms Fogarty worked restricted hours and also attended a course at the Canberra Institute of Technology.

[1] T45.

3.      On 25 August 2005 the Corporation made a further amendment to the Return to Work Plan by providing a more detailed work schedule for Ms Fogarty.[2] In part the amendment provided:

“Unless certified medically unfit attend & undertake tasks & duties associated with study & work trial ie. 6 hr pw Diploma of Gov. Fin. Mngmt. 10 hr pw with Host Employer.”

[2] T66.

The amendment provided for a target start date of 1 August 2005 and a target end date of 23 September 2005.

4.      The amended arrangements were put in place for the period proposed.  During the period Ms Fogarty either attended work or the CIT course as required, or was absent with the appropriate medical certificate. The material before me suggests that Ms Fogarty complied fully with the amendment to the plan.  Comcare conceded this at the hearing.

5.      Upon a request by Ms Fogarty that this decision to amend the plan be reconsidered, Comcare affirmed the decision.  Ms Fogarty has applied to the Tribunal to review Comcare’s decision.

6. Ms Fogarty’s application is yet to be heard. Comcare has applied for a direction pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 (Cth) that the application be dismissed on the basis that it is frivolous and/or vexatious. Subsection 42B(1) provides:

‘Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:

(a)  dismiss the application; and

(b)  if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.’

STATUTORY BACKGROUND

7. Subsection 37(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides that a rehabilitation authority, in this case the Corporation, may determine that an injured employee who is incapacitated for work should undertake a rehabilitation program. A rehabilitation program includes a return to work program.

8.      Subsection 37(3) requires a rehabilitation authority to have regard to the following factors in making a determination:

‘In making a determination under subsection (1), a rehabilitation authority shall have regard to:

(a)any written assessment given under subsection 36(8);

(b)any reduction in the future liability to pay compensation if the program is undertaken;

(c)the cost of the program;

(d)any improvement in the employee’s opportunity to be employed after completing the program;

(e)the likely psychological effect on the employee of not providing the program;

(f)the employee’s attitude to the program;

(g)the relative merits of any alternative and appropriate rehabilitation program; and

(h)any other relevant matter.’

RELEVANT CASE LAW

9.      The principles to be considered in proceedings to strike out an application as being frivolous and/or vexatious have been considered in detail recently by the Tribunal in Re Fearnley and Australian Fisheries Management Authority (2006) 87 ALD 159. The following principles relevant to the determination of this matter arise from the decision and the authorities referred to:

1)    the power to dismiss proceedings in these circumstances should be exercised cautiously and sparingly [3];

2)    an applicant who genuinely holds a mistaken belief as to the facts (as distinct from the law) which if correct would support the claim , is ordinarily entitled to “a day in court” [4]

3)    “manifest untenability”  is a ground for finding that a proceeding is vexatious [5];

4)    if, on the law as it exists at the time, continuing the proceedings would be futile, the proceedings must be regarded as frivolous and vexatious[6].

[3] General Steel Industries Inc v Commissioner for Railways (NSW) [1965] ALR 636.

[4] Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) FCR 324.

[5] Re Williams  and Australian Electoral Commission and the Greens (1995) 38 ALD 366.

[6] Re Fearnley and Australian Fisheries Management Authority, ibid.

10.     It is also important to take into account that a review by this Tribunal is not in the nature of a review of the reasons for a decision but a review of the decision itself; the Tribunal must reach its own decision on the facts before it at the time it makes its decision:  Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577.

COMCARE’S ARGUMENT

11.     Comcare has argued that :

1)the only decision subject to review is the decision to amend the return to work plan which was operative from 1 August 2005 to 23 September 2005;

2)the amendment was for a closed period which is complete and the amendment has no ongoing effect;

3)there is no decision that the Tribunal can now make which can put Ms Fogarty in a materially better position than that in which she is at present;

4)consequently the application is futile and should be dismissed.

MS FOGARTY’S ARGUMENT

12.     Ms Fogarty contends that :

1)the amended plan which is before the Tribunal for review is that which was in force from 3 March 2005 until 13 December 2005;

2)the amendment to her return to work plan was unlawful (in breach of Comcare guidelines and section 41 of the Safety, Rehabilitation and Compensation Act 1988) and/or unreasonable;

3)the amendment was made contrary to the advice of her medical practitioner;

4)she is continuing to suffer psychological distress by reason of the existence of the plan in her records, even though the plan has been completed;

5)a decision setting aside the approval of the plan would assist her completion of her CIT course and her recovery from her compensable injury;

6)unless the decision approving the plan is set aside, it is possible that the plan may be used in future non-compliance proceedings against her or as a basis for future return to work plans.

REASONING

13. The Tribunal’s jurisdiction is determined by Statute, in this case by sections 62 and 64 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The only decision which this Tribunal has jurisdiction to review in this case is the decision of Comcare made 15 November 2005 [7] which relates only to the determination to amend the plan for the period 1 August 2005 to 23 September 2005.  The Tribunal cannot review the plan which commenced in March 2005 as argued by Ms Fogarty as that plan has not been reconsidered by Comcare.  In this regard I note that Ms Fogarty’s request for reconsideration [8] related only to the amendment for the period commencing on 1 August 2005.

[7] T.81.

[8] T71.

14.     Taking into account that Ms Fogarty has completed the period of the amended plan strictly in accordance with its terms, had it not been for the claim that the determination to amend the plan is having an ongoing effect on her health, I would have been satisfied that the application for review was futile and therefore frivolous and vexatious in accordance with the principles set out in Re Fearnley and Australian Fisheries Management.[9]On the material before me I am of the view that there is no reasonable likelihood that there could be non-compliance action taken against Ms Fogarty based on the amendment to the plan or that it could form the basis of future plans.  If Ms Fogarty’s employer attempted such action Ms Fogarty would have ample means of redress.

[9] Ibid.

15.     However, Ms Fogarty is entitled to her “day in the Tribunal” to determine whether the decision to amend the workplan should be set aside.  There is a real issue arising from her claim that the decision has had, and continues to have, an adverse effect on her health and rehabilitation.  Subsection 37 (3)(e) of the Act specifically provides for the likely psychological effect of not providing a plan to be taken into account.  On this basis I am not satisfied that the determination of Ms Fogarty’s application by proceeding to a hearing would be futile or that the case which she wishes to put is untenable.  The determination of each of these issues depends upon the existence of facts yet to be determined. 

16.     My decision should not be taken to indicate that a particular argument will ultimately be successful or that available evidence will be sufficient to prove any case which Ms Fogarty may wish to make.  On the other hand this decision is not intended to limit the grounds upon which Ms Fogarty may seek to rely at the hearing.  These matters are for the Tribunal constituted to hear the merits of the application.

DECISION

17. The application by Comcare to dismiss the application pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 is dismissed.  

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member.

Signed:          .....................................................................................

Geoff Foley, Associate

Date/s of Hearing  20 April 2007

Date of Decision  3 May 2007
Solicitor for the Applicant               Self-represented
Solicitor for the Respondent         Australian Government Solicitor