Hanel and Comcare (Compensation) - [2022] AATA 261

Hanel and Comcare (Compensation) [2022] AATA 261 (16 February 2022)
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2020/5379

GENERAL DIVISION )
Re: Phillip Lee Hanel
Applicant

And: Comcare
Respondent
DIRECTION
TRIBUNAL:  Senior Member B J Illingworth
DATE OF CORRIGENDUM:            2 March 2022
PLACE:           Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

At paragraph 36 the sentence beginning with “Albeit the applicant was not obliged to provide reasons” is replaced with “Albeit the respondent was not obliged to provide reasons”.

...........................[Sgnd]............................
B J ILLINGWORTH
(Senior Member)

Division:GENERAL DIVISION
File Number(s): 2020/5379 & 2021/0997
Re:Phillip Hanel
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:16 February 2022
Place:Adelaide

The applicant’s rights to continue with the claims for compensation are suspended pursuant to s57(2) of the Safety, Rehabilitation and Compensation Act 1988, in consequence of the Notice of Suspension dated 21 July 2021.
The summons for production of documents issued to the respondent dated 7 October 2021 is dismissed.
..................[Sgnd]......................
Senior Member B J Illingworth
Catchwords
JURISDICTION – Section 57 Notice under the Safety, Rehabilitation and Compensation Act 1988 (Cth) – Independent Medical Examination – objection to Notice – does Applicant have reasonable excuse – Suspension – Tribunal has no jurisdiction
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Australasian Postal Corporation v Forgie & Anor [2003] FCR 130
Lees v Comcare [1999] FCA 75
REASONS FOR DECISION
Senior Member B J Illingworth
16 February 2022
INTRODUCTION

This matter relates to a challenge by the applicant to a Safety, Rehabilitation and Compensation Act1988 (the “SRC Act”) s57 Notice of Suspension (the “Notice”) made by the respondent and dated 21 July 2021, suspending the applicant’s claims for compensation filed in the Administrative and Appeals Tribunal (the “Tribunal”).
The applicant asserted that the Notice was unlawful and accordingly his claims for compensation ought not be suspended.
The applicant appeared in person. The respondent was represented by counsel Mr Woulfe and Ms Khan from McInnes Wilson Lawyers
BACKGROUND
The applicant filed two applications in the Tribunal for compensation pursuant to the SRC Act. The first application was for compensation under s14 of the SRC Act in proceedings numbered 2020/5379 for an adjustment disorder with anxiety and dated 4 September 2020. The second, for medical expenses under s16 of the SRC Act in proceedings numbered 2021/0997 and dated 19 February 2021.
Prior to filing his applications in the Tribunal, the applicant had attended and independent medical examination (“IME”) with Dr Martyn Ewer psychiatrist, on 12 March 2020. After the filing of the first application for review, the respondent determined it reasonable and necessary to obtain a further report from Dr Ewer for reasons including, the passage of time since that March 2020 examination, and that following the receipt of summonsed material,…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Hanel and Comcare (Compensation)

Details

AGLC: Hanel and Comcare (Compensation) [2022] AATA 261
Case: [2022] AATA 261
Decision Date: 16 February 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by Mr Hanel (the applicant) concerning his claims for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). The dispute arose when the applicant failed to attend three scheduled independent medical examinations (IMEs) requested by Comcare (the respondent) and subsequently received a Notice of Intention to Suspend his claims. The applicant argued that he had reasonable excuses for his non-attendance and that the respondent lacked the power to issue the notices while his applications were before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had a reasonable excuse for failing to attend the IMEs as required by a notice issued under section 57(1)(b) of the SRC Act. A related issue was whether the Tribunal had the jurisdiction to review Comcare's decision to suspend the applicant's claims under section 57(2) of the SRC Act, or whether such a suspension was a jurisdictional fact that prevented the Tribunal from proceeding with the review of the underlying compensation claims.

The Tribunal reasoned that the applicant's subjective belief that the IMEs were unlawful, based on his interpretation of the SRC Act and the AAT Act, did not constitute a reasonable excuse for failing to attend. The Tribunal affirmed that the power to require an IME under section 57 of the SRC Act remained with Comcare, and that the AAT's jurisdiction was limited to reviewing "reviewable decisions" as defined by section 60 of the SRC Act. Crucially, decisions made under section 57 were not included in the definition of reviewable decisions. Therefore, the Tribunal held that it did not have the jurisdiction to review Comcare's suspension decision itself, but it could determine whether the jurisdictional facts for a suspension under section 57(1) had been satisfied.

The Tribunal concluded that the applicant had failed to provide a reasonable excuse for his non-attendance at the IME. Consequently, Comcare was entitled to issue a notice of suspension under section 57(2) of the SRC Act. As the Tribunal lacked jurisdiction to review this suspension decision, it dismissed the applicant's applications for review of his compensation claims.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant appeared in person. The respondent was represented by counsel Mr Woulfe and Ms Khan from McInnes Wilson LawyersBACKGROUND The applicant filed two applications in the Tribunal for compensation pursuant to the SRC Act. The first application was for compensation under s14 of the SRC Act in proceedings numbered 2020/5379 for an adjustment disorder with anxiety and dated 4 September 2020. The second, for medical expenses under s16 of the SRC Act in proceedings numbered 2021/0997 and dated 19 February 2021. Prior to filing his applications in the Tribunal, the applicant had attended and independent medical examination (“IME”) with Dr Martyn Ewer psychiatrist, on 12 March 2020. After the filing of the first application for review, the respondent determined it reasonable and necessary to obtain a further report from Dr Ewer for reasons including, the passage of time since that March 2020 examination, and that following the receipt of summonsed material, there was a need for Dr Ewer to consider that material and provide a further report. By letter dated 22 December 2020 the respondent advised the applicant that an appointment had been made for an IME with Dr Ewer, on Wednesday 24 February 2021 at 11.00am. This was a Notice given pursuant to s57(1)(b) of the SRC Act. The applicant failed to attend the appointment. Two further appointments were made on 23 March 2021 and 6 May 2021 and s57(1)(b) Notices were sent to the applicant in respect of each appointment. The applicant failed to attend both those appointments. In communications between the parties with respect to the applicant’s attendance at the proposed IME’s, the applicant raised various issues about the need for the IME. Those issues were numerous, and I will not repeat them all, but they included that the applicant did not regard the appointment as necessary, and he could not see the benefit in a re-examination by Dr Ewer. The applicant challenged the respondent’s power to issue the s57(1)(b) Notice given the matter was now before the Tribunal. Further it was not apparent to the applicant which power or function under s69 of the SRC Act the respondent purported to use when issuing each s57(1)(b) Notice. The respondent responded to the various issues raised. On 4 February 2021, the parties attended a telephone conference to discuss the applicant’s objections. By letter dated 24 June 2021 the respondent provided a Notice of Intention to Suspend the applicants claims under s57(2) of the SRC Act, for his failure to attend the 6 May 2021 IME. The letter advised that the respondent was considering making a determination to suspend the applicant’s claims and that the applicant had failed to give a reasonable excuse for his non-attendance. The applicant was given the opportunity to respond to that Notice of Intention to Suspend, which he did. The respondent considered the applicant’s response and by letter dated 21 July 2021 the respondent sent to the applicant the Notice as a consequence of his non-attendance at the IME with Dr Ewer on 6 May 2021. The Notice informed the applicant that should he not advise within 3 months of his willingness to attend a rescheduled medical examination the respondent would seek dismissal of his applications for review pursuant to s42A(5)(a) of the Administrative Appeals Tribunal Act (the “AAT Act”). That section relevantly reads:“(5) If an applicant for a review of a decision fails within a reasonable time:(a) to proceed with the application;…….the Tribunal may dismiss the application without proceeding to review the decision.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 64(1) of the SRC Act provides that applications may be made to the Tribunal for review of a reviewable decision. A reviewable decision is defined in s60 of the SRC Act as follows:“reviewable decision” means a decision made under subsection 38(4) or section 62.” Subsection 38(4) of the SRC Act provides that the respondent will review a determination and may make a decision affirming revoking or varying the determination. A determination is defined in s60 as follows:“determination” means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 29A, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.” Subsection 62 of the SRC Act relevantly reads as follows:“(1) A determining authority may, on its own motion:(a) reconsider a determination made by it; or (b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.” The legislative scheme therefore provides that upon request, there shall be a reconsideration of the determination by a person delegated with the power to do so, and who was not the original decision maker, and thereafter an application for review may be brought before the Tribunal. As can be seen in the SRC Act, a determination made under s57 of the SRC Act is not included within the listed sections which can be reviewed by the Tribunal. In Lees v Comcare [1999] FCA 753 the Full Court of the Federal Court of Australia considered the legislative scheme under the SRC Act (as it then was) and after referring to the various sections of the SRC Act summarised the legislative scheme at [39] as follows:“In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by s 64 of the Act to review only reviewable decisions - that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination (s 61(1)). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers "[f]or the purpose of reviewing" the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.”

Ratio Decidendi

Legal Principle Established

The respondent provided written and oral submissions. The respondent’s submissions included:·The applicant’s rights to continue the proceedings are suspended pursuant to s57(2) of the SRC Act, because he failed without reasonable excuse to undergo an IME;·The Tribunal does not have the power to review a suspension decision under s57 of the SRC Act. Jurisdiction is conferred on the Tribunal pursuant to s64 of the SRC Act to review only reviewable decisions under that Act. A reviewable decision is a decision made on review pursuant to s62 of the SRC Act. A reviewable decision includes a reconsideration of a determination defined in s60 of the SRC Act. The definition of a determination does not include a decision under s57 of the SRC Act;·The Tribunal is empowered to determine jurisdictional issues including whether a claimant’s rights are suspended having regard to a decision made under s57(2) and including whether the jurisdictional facts in s57(1) have been satisfied;·The applicant’s excuse for not attending the IME, namely that he subjectively believed that it was unlawful for the respondent to require him to undergo the examination, could not be regarded as a reasonable excuse for the purpose of s57(2) of the SRC Act; and·The requirement to attend the IME under s57(1) of the SRC Act remained on foot, unchallenged by the applicant and undisturbed by a court of competent jurisdiction and should be regarded as an established fact for the purpose of s57(2) and the Notice.CONSIDERATION The applicant’s refusal to attend the IMEs was underpinned by his subjective interpretation of the SRC Act, the AAT Act, and their interrelationship, which he said rendered both the s57(1)(b) Notice and the Notice unlawful. Further he could not see any benefit or need to attend the IME. These factors, he said, provided a reasonable excuse for his failure to attend the IME on 6 May 2021. The applicant asserted that because a valid application was before the Tribunal the legislative scheme prevented the respondent from then performing its functions under the SRC Act including pursuant to s57 of that Act, and by operation of s43 of the AAT Act those powers and functions under s57(1) and (2) of the SRC Act were vested in the Tribunal. It is therefore necessary to consider the legislative scheme as it relates to this matter.The Statutory Framework The jurisdiction of the Tribunal to review certain decisions is dependent upon an enactment providing power to the Tribunal to do so. Part IV Division 1 of the AAT Act is headed “Applications for review of decisions” in which Division is found s25 and which relevantly reads:“(1) An enactment may provide that applications may be made to the Tribunal:(a) for review of decisions made in the exercise of powers conferred by that enactment; or(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.……(3) Where an enactment makes provision in accordance with subsection (1) or (2), that enactment:(a) shall specify the person or persons to whose decisions the provision applies;(b) may be expressed to apply to all decisions of a person, or to a class of such decisions; and(c) may specify conditions subject to which applications may be made.”

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2020/5379
GENERAL DIVISION	)