Katherine von Stieglitz and Comcare
[2012] AATA 729
•22 October 2012
[2012] AATA 729
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/0675
Re
Katherine von Stieglitz
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 22 October 2012 Place Canberra No order.
...................[sgd]............................................
Mr S. Webb, Member
COMPENSATION – injury claim – requirement to undergo a medical examination – challenge to requirement – request for compliance orders – request for findings as to a ‘reasonable excuse’ – prospective opinion and declaratory ruling not appropriate – no jurisdiction – s 57 requirement not a matter of tribunal procedure – rights of the parties – statutory mechanism – impartial role of the tribunal – fairness and justice to parties – request for order rejected
Administrative Appeals Tribunal Act 1975 (CTH), s 33
Safety, Rehabilitation and Compensation Act 1988 (CTH), ss 57, 60, 64
Australian Postal Corporation v Forgie [2003] FCAFC 223
Buck v Comcare [1996] FCA 1485
Pascoe v Australian Postal Corporation [2004] FCAFC 4
Plaintiff M70/2011 & Anor v Minister for Immigration and Citizenship [2011] HCA 32
Re Steele and Pacific National Pty Limited [2009] AATA 321
Telstra Corporation Limited v Administrative Appeals Tribunal [2003] FCA 102REASONS FOR DECISION
Mr S. Webb, Member
22 October 2012
In the course of proceedings, Comcare requested a direction requiring Ms von Stieglitz to attend a medical appointment specified in a notice issued by it under s 57(1) of the Safety, Rehabilitation and Compensation Act 1988 (CTH) (the Act). Comcare also sought an assessment of whether Ms von Stieglitz has a reasonable excuse for refusing or failing to undergo the examination. I heard and refused both requests, and I gave oral reasons. I now set out my reasons, briefly, in writing.
There is a dispute between the parties about Ms von Stieglitz undergoing a medical examination by Dr Michael Prior, a psychiatrist. In previous proceedings before the Tribunal concerning a psychological injury claim brought by Ms von Stieglitz under s 14 of the Act, Dr Prior examined her and provided Comcare with a medico-legal report. Even though Ms von Stieglitz was not successful in those proceedings she presently seeks to rely on Dr Prior’s report in support of a fresh psychological injury claim under ss 14, 16 and 19 of the Act.
Comcare made arrangements for Dr Prior to re-examine Ms von Stieglitz and to provide a further medico-legal report for the purposes of these proceedings. Initially, an appointment was made in Sydney, but Ms von Stieglitz resisted this on medical and other grounds that are set out in a letter dated 18 July 2012. A further appointment was made with Dr Prior in Canberra. This, too, was opposed by Ms von Stieglitz. Her reasons for doing so are set out in a letter dated 30 August 2012. It is not necessary to address the detailed reasons she provided.
On 4 September 2012, Comcare issued Ms von Stieglitz with a notice under s 57(1), requiring her to undergo an examination by Dr Prior on 23 October 2012. The notice clearly sets out the consequences of refusing or failing to undergo the examination without a reasonable excuse. A conference registrar directed Ms von Stieglitz to inform the Tribunal and Comcare whether she would attend the appointment and, if not, to set out in writing her “reasonable excuse” for not doing so. In those circumstances, Comcare was ordered to inform the Tribunal and Ms von Stieglitz whether it accepted her excuse as reasonable.
The directions were complied with. On 25 September 2012, Ms von Stieglitz informed the Tribunal and Comcare that she believed that the s 57 notice “is invalid and so there is no lawful requirement for me to attend the examination”. On 26 September 2012, Comcare informed the Tribunal and Ms von Stieglitz that it “does not accept the Applicant’s letter of 25 September 2012 as a ‘reasonable excuse’ for non-attendance at the scheduled medical appointment with Dr Michael Prior”.
Comcare requested a directions hearing “to resolve the issue of attendance at the medical appointment”. At the directions hearing, Comcare asked for an order to compel Ms von Stieglitz to attend the medical appointment with Dr Prior. Additionally, Comcare asked the Tribunal to make a factual finding as to whether Ms von Stieglitz has a reasonable excuse for not attending the appointment.
I refused both requests.
The power to require a claimant to undergo a medical examination by a legally qualified medical practitioner is set out in s 57(1). The power is vested in “a relevant authority”. The relevant authority in this case is Comcare. The Tribunal has no jurisdiction and no power to exercise under s 57(1).
As can be seen, s 57(2) provides that:
Where an employee refuses or fails, without a 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.
Whether a decision is required to enliven suspension under the section is a vexed issue. The Full Federal Court in Australian Postal Corporation v Forgie[1] addressed similar issues in relation to s 37(7) and concluded that suspension under that section arises when the relevant authority decides that the employee did not have a reasonable excuse for refusing or failing to undergo a rehabilitation program, having evaluated what is reasonable in the particular circumstances. This construction was confirmed by the Full Court in Pascoe v Australian Postal Corporation[2]. Thus, it is settled that a decision under s 37(7) concerning a reasonable excuse is within the meaning of “determination” under s 60, and it is open to reconsideration under s 62 or review by the Tribunal under s 64.
[1] [2003] FCAFC 223 at [40] to [63].
[2] [2004] FCAFC 4 at [19]-[20].
But s 57 has a different character and it is not included within the meaning of a “determination” under s 60 –
[A]lthough both sections have a similar structure, the presence of one and the absence of the other from the definition of ‘determination’ is a clear indication that the legislature intended them to be treated differently for the purposes of the availability of merits review before the Tribunal.[3]
In earlier cases that are squarely on point in respect of s 57(2), it was determined that “The statute stipulates the circumstances in which an employee's rights will be suspended. No decision is required to bring that about”[4]: the section “does not, relevantly, authorise or require a decision of an administrative character to be taken”[5].
[3] Australian Postal Corporation v Forgie [2003] FCAFC 223 at [73].
[4] Telstra Corporation Limited v Administrative Appeals Tribunal [2003] FCA 102 at [9].
[5] Buck v Comcare [1996] FCA 1485 at [17].
When addressing similar issues to those presently before me, in Re Steele and Pacific National Pty Limited[6] the Tribunal adopted the construction in Forgie and observed that, before s 57(2) would operate to suspend the employee’s rights under the Act:
[T]he relevant authority will need to make a decision that the requisite pre-conditions to the operation of s 57, that is, a failure to attend a medical examination and no reasonable excuse for that failure, have been met.[7]
The Deputy President rejected Mr Steele’s request for relief from the requirement for him to undergo the particular medical examination on grounds that he had a reasonable excuse, ruling that the Tribunal has no jurisdiction to make any such declaration, observing that the existence of a reasonable excuse under s 57(2) may arise as a factual point only when determining the jurisdiction of the Tribunal[8].
[6] [2009] AATA 321.
[7] Ibid at [10].
[8] Ibid at [12].
With this, with respect, I agree. The Tribunal does not have jurisdiction to make a declaratory ruling about the reasonableness or otherwise of any reasons Ms von Stieglitz may have if she refuses or fails to comply with the requirement to undergo a medical examination with Dr Prior. It is not for me to make a finding concerning matters Ms von Stieglitz has set out by way of reasons for her challenge to the requirement to undergo a medical examination with Dr Prior; nor is it appropriate in these circumstances to direct Ms von Stieglitz to attend a medical examination for Comcare’s purposes.
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[9].
[9] Plaintiff M70/2011 & Anor v Minister for Immigration and Citizenship [2011] HCA 32, per Gummow, Hayne, Crennan and Bell JJ at [109].
It is premature to consider these matters at this juncture. While Ms von Stieglitz has raised issues challenging the lawfulness of the notice Comcare issued her under s 57(1), and she has previously stated an intention to refuse to undergo a further examination by Dr Prior, it is not presently established that she has refused or failed to undergo the examination specified in the s 57(1) notice Comcare issued on 4 September 2012. It is clear enough from Comcare’s submissions that s 57(2) has not been enlivened and that Ms von Stieglitz’s rights to compensation, or to institute or continue with proceedings have not been suspended. Presently, there is no issue to be determined concerning the Tribunal’s jurisdiction.
Comcare urged me to make orders requiring Ms von Stieglitz to attend the appointment, using the power vested in the Tribunal to determine its own procedure. To my mind there are serious questions (and doubts) about this. Firstly, it is questionable whether the Tribunal’s discretion to determine procedure under s 33(1) of the Administrative Appeals Tribunal Act 1975 extends power to compel a person in Ms von Stieglitz’s circumstances to attend a medico-legal examination in order for Comcare to obtain evidence in proceedings to which she is a party. Even if there is power, the proposition raises serious questions of procedural fairness and natural justice.
Ms von Stieglitz has set out a number of matters challenging the requirement Comcare has placed upon her to undergo a medical examination with Dr Prior. These are matters for her and for Comcare. As I have said, presently, it is not for me to make a finding about the reasonableness of any excuse Ms von Stieglitz may have if she refuses or fails to undergo the medical examination by Dr Prior. It is not appropriate, now, for the Tribunal to express opinion or to make a declaratory ruling about the reasonableness or the correctness (or otherwise) of Ms von Stieglitz’s grounds for challenging the lawfulness of Comcare’s action under s 57(1) requiring her to undergo that medical examination; and the Tribunal has no jurisdiction to do so. If, as appears, Ms von Stieglitz intends to challenge the s 57(1) requirement by legal means that may involve action under the Administrative Decisions (Judicial Review) Act 1977, and in so doing to face the prospect of suspension under s 57(2), it is not appropriate for the Tribunal to intervene by issuing directions of the kind Comcare seeks at this point in time. It is for Ms von Stieglitz to prosecute those matters and it would not be fair or appropriate for the Tribunal to issue directions that may counteract or impede her right to do so.
The legislation provides a mechanism to deal with refusal or failure to attend a medical examination as required, and that mechanism should be allowed to operate in response to the choices Ms von Stieglitz makes. There are issues concerning her rights and the rights of Comcare under s 57 in play. At a point in the future it may be necessary to consider the factual under-pinning of s 57(2) suspension action in order to determine the Tribunal’s jurisdiction, but that is not a matter to be decided now.
Finally, Comcare informed me that it was seeking the assistance of the Tribunal in finding an alternative means of resolving the dispute with Ms von Stieglitz over the examination by Dr Prior in order to avoid suspension under s 57(2). I was informed that it was for this reason that Comcare sought a direction requiring her to undergo the examination and a finding as to the reasonableness of Ms von Stieglitz’s purported excuse for refusing or failing to comply with the s 57(1) requirement. It may be sensible and appropriate to seek an alternative means of resolving the dispute over the requirement on Ms von Stieglitz to undergo the medical examination.
I understand that matters of this kind were discussed during a preliminary conference, without resolution. That being so, however, I struggle to see how the two propositions now being advanced by Comcare – a Tribunal direction requiring Ms von Stieglitz to undergo the examination and a finding as to the reasonableness of her excuses for refusing or failing to do so – provide an alternative to the mechanism set out in s 57(2). For the reasons already given, it appears to me that the ‘alternative’ lacks a proper basis and it cannot be accepted. It involves the Tribunal expressing opinion in declaratory form, without jurisdiction, about one of the essential pre-conditioning elements of s 57(2). It requires the Tribunal to issue a direction in an attempt to persuade or coerce Ms von Stieglitz to comply with the requirement Comcare has imposed. This is not consistent with the Tribunal’s impartial role in proceeding to address Ms von Stieglitz’s application for review.
Comcare exercised power and acted under s 57(1) to require Ms von Stieglitz to undergo a medical examination. That action is given force by the prospect of her rights under the Act being suspended in the event of non-compliance. If the essential pre-conditioning elements of s 57(2) are made out, no order of the Tribunal can avoid or countermand the suspension that must follow by operation of the statute. Thus, the ‘alternative’ course of action proposed by Comcare is not a viable alternative at all.
It is open for Comcare to consider the matters Ms von Stieglitz has raised and, if it is appropriate to do so, to revoke the requirement that she must undergo a medical examination by Dr Prior on the specified date; but while that requirement remains operative and in force, the matter is squarely one for Ms von Stieglitz to decide. If she complies, there is no issue. If she does not comply, her rights to compensation and to institute or proceed with her claim under the Act will be suspended in the event that her non-compliance lacks a reasonable excuse. If she commences legal action challenging the requirement under s 57(1) and seeks to proceed with her application for review, it will be necessary to determine whether this may constitute a reasonable excuse for her non-compliance. None of these matters are presently for the Tribunal to decide. At this point, the issues are not simply procedural matters for the Tribunal; the rights of each party are in issue, and this may require determination by a proper authority, if pressed.
In conclusion, therefore, Comcare’s requests for orders and factual findings are refused.
I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member. ..........................[sgd].........................................
Associate
Dated 22 October 2012
Date of directions hearing 22 October 2012 Applicant In person Solicitors for the Respondent Dibbs Barker
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