Katherine von Stieglitz and Comcare - [2012] AATA 729

[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 102
REASONS 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…

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.

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Details

Case: [2012] AATA 729
Decision Date: 22 October 2012

CaseChat Overview and Summary

The applicant, Katherine von Stieglitz, challenged a requirement by Comcare for her to undergo a medical examination under s 57(1) of the Safety, Rehabilitation and Compensation Act 1988 (CTH). Comcare issued a notice to Ms von Stieglitz, who opposed it on various grounds. Comcare sought directions from the Administrative Appeals Tribunal (AAT) to compel Ms von Stieglitz to attend the examination and for a finding on the reasonableness of her excuses for non-attendance. The tribunal member, Mr S. Webb, refused both requests.

The legal issues centred on the tribunal's jurisdiction to make orders and findings under s 57(1) of the Act. Mr Webb held that the AAT does not have the jurisdiction to make a declaratory ruling about the reasonableness of Ms von Stieglitz's reasons for refusing to undergo the examination. The tribunal's role is impartial and it should not intervene in the dispute between the parties at this stage. The statutory mechanism in s 57(2) provides for the suspension of rights if the requirements are not met, and it is not for the tribunal to determine the reasonableness of the excuses now. The member noted that it was premature to consider these matters as Ms von Stieglitz had not yet refused or failed to comply with the requirement.

Mr Webb also rejected Comcare's request for orders compelling attendance at the examination. He found that the tribunal's power to determine its own procedure under s 33 of the Administrative Appeals Tribunal Act 1975 does not extend to compelling a person to attend a medico-legal examination. Issuing such orders would raise questions of procedural fairness and natural justice. The member concluded that it was not appropriate for the tribunal to express opinion or make a declaratory ruling on the reasonableness of Ms von Stieglitz's challenges to the requirement at this point in time.

In summary, the tribunal refused Comcare's requests for orders and findings. The issues of rights and obligations under s 57 of the Act were left for Ms von Stieglitz to prosecute if she chose to do so. The tribunal would determine its jurisdiction at a later point if necessary, when the factual circumstances were established.

Orders