Kennedy and Comcare (Compensation)
[2015] AATA 643
•27 August 2015
Kennedy and Comcare (Compensation) [2015] AATA 643 (27 August 2015)
Division
GENERAL DIVISION
File number
2015/2961
Ross Kennedy
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Dr James Popple, Senior Member
Date 27 August 2015 Date of written reasons 27 August 2015 Place Canberra The application is dismissed under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975.
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James Popple, Senior Member
CATCHWORDS
COMPENSATION — Commonwealth employees — Applicant requested extension of time to request reconsideration by Respondent — application for review of refusal to grant extension of time — whether application has no reasonable prospect of success — Applicant made wilful and false representations — Applicant declined to proceed at hearing — hearing proceeded in absence of Applicant — application dismissed.
LEGISLATION
Administrative Appeals Tribunal Act 1975, ss 2A(c), 40(1)(b), 42B(1)(b)
Safety, Rehabilitation and Compensation Act 1988, ss 7(7), 62(3)(b)
CASES
Kennedy and Comcare [2015] AATA 334
REASONS FOR DECISION
Dr James Popple, Senior Member
27 August 2015
On 27 August 2015, I conducted a hearing in this matter. I gave my decision, and my reasons, orally at that hearing. These are the written reasons for my decision. They only differ in substance from the reasons given orally by the addition of this paragraph and [2]–[8] below, and of headings and notes. My reasons have been prepared having regard to the requirement, in s 2A(c) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), that the Tribunal pursue the objective of providing a mechanism of review that is proportionate to the importance and complexity of the matter.
Background
On 7 July 2014, Mr Ross Kennedy made a claim for worker’s compensation. He said that his injury was his “mental state”, and that he first sought treatment for it in 2011 or 2012. He said that his injury was due to “various unreasonable administrative actions undertaken by [his] supervisors and managers” when he was working in the then Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education.
On 11 December 2014, Comcare rejected his claim for what it termed “major depressive disorder, recurrent episode”. Under s 62(3)(b) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), Mr Kennedy had 30 days from when Comcare’s determination first came to his notice within which to request a reconsideration of that determination. On 23 December 2014, Mr Kennedy asked Comcare for an extension of time within which to make that request. On the same day, Comcare gave him an extension until 11 March 2015.[1]
[1] Comcare has the power to extend the deadline under s 62(3)(b) of the SRC Act.
On 22 February 2015, Mr Kennedy asked Comcare for a further 120 days within which to request reconsideration of Comcare’s determination. On 3 March, Comcare replied to Mr Kennedy asking him why he required a further extension of time.
On 18 May 2015, the Tribunal made a decision in two other matters in which Mr Kennedy was the applicant and Comcare the respondent.[2] I will call this the earlier decision.
[2] Kennedy and Comcare [2015] AATA 334 per Hack DP.
On 19 May, Mr Kennedy advised Comcare that he “wish[ed] Comcare to proceed with a reconsideration” of its determination of 11 December 2014. On 22 May, Comcare asked Mr Kennedy to explain why he had not made his request for reconsideration by 11 March, and why he disagreed with the 11 December determination.
On 27 May, after further correspondence, Comcare asked Mr Kennedy to provide those explanations by 1 June 2015. On 2 June, no explanation having been received, Comcare asked him to provide those explanations by 5 June. On 5 June he asked for an extension until 8 June. On 10 June, he asked for an extension until 15 July.
On 15 June 2015, Comcare denied Mr Kennedy’s request for a further extension of time within which to request reconsideration of Comcare’s 11 December determination. On 17 June, Mr Kennedy applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.
Should Mr Kennedy’s application be dismissed?
On 31 July 2015, Comcare applied to have Mr Kennedy’s application for review dismissed under s 42B(1)(b) of the AAT Act, on the grounds that it has no reasonable prospect of success.
The hearing of Comcare’s dismissal application
On 31 July 2015, this matter was listed for hearing on 12 August, in lieu of a preliminary conference that had previously been listed for that time. I directed that Comcare provide written submissions in support of its application for dismissal by 5 August (which it did) and that Mr Kennedy provide any written submissions in response before the hearing. On 10 August, Mr Kennedy advised that he was unable to attend the hearing on 12 August. On 11 August, the hearing was vacated, and Mr Kennedy was given until 21 August to provide submissions.
On 18 August, the matter was relisted for hearing today (27 August). Later on 18 August, Mr Kennedy advised that he would not attend the hearing if Mr Andrew Schofield (from Comcare) was also there. On 19 August, my associate advised Mr Kennedy that Comcare’s representation was a matter for Comcare. Later that day, Mr Kennedy advised that he would attend today’s hearing.
On 20 August, Mr Kennedy sought another postponement of this hearing, for a further 60 days. He objected (again) to the presence of Mr Schofield at the hearing, and requested that the Tribunal be constituted by a specified member of the Tribunal, not by me. He provided no reasons why I should not constitute the Tribunal.
Mr Kennedy’s failure to proceed
On 25 August, Mr Kennedy provided reasons why, he says, he is currently unable to progress any matters that he currently has in the Tribunal: he is having problems with his car; he had no internet or telephone access on 24 August; he is distressed because of an unrelated employment matter; he is distressed by a work incident on 21 August; and he has work commitments from 21 to 27 August. On 26 August, Mr Kennedy advised that a further reason why he cannot progress this matter was that he had to attend an inspection of a rental property today.
This morning, Mr Kennedy advised that he would not be attending today’s hearing of Comcare’s application for dismissal. He was contacted by telephone at the beginning of the hearing, and invited to participate in the hearing. He declined. Instead, he said that it was unfair for the hearing to proceed, requested again that the hearing be postponed, and ended the call.
Mr Kennedy’s car problems are not a reason why he could not attend today’s hearing: he had the option of participating by telephone. I do not understand how having no access to internet or telephone three days ago prevented him from proceeding in this matter. Mr Kennedy was asked to provide medical evidence in support of any claim that he was unable to proceed due to distress. He provided none. In light of his claims about his work commitments, and his need to attend a rental property inspection today, Mr Kennedy was told that the hearing could start later this afternoon. He suggested no alternative time.
Mr Kennedy has had adequate time to respond to Comcare’s submissions about why his application for review should be dismissed. The hearing of Comcare’s application for dismissal was postponed once, at his request. He has given no adequate reason why it should be postponed again, or why he could not attend this hearing—in person or by telephone.
Section 40(1)(b) of the AAT Act provides that the Tribunal may proceed in the absence of a party who has been given reasonable notice of a proceeding.[3] I think it is appropriate that I proceed to deal with Comcare’s dismissal application today, notwithstanding that Mr Kennedy declined to take any further part in the hearing.
[3] Section 40 of the AAT Act applies to this hearing: s 40(7).
Mr Kennedy’s prospect of success
Comcare says that Mr Kennedy’s application for review should be dismissed because it has no reasonable prospect of success.
Section 7(7) of the SRC Act provides:
(7)A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
In the earlier decision, the Tribunal affirmed Comcare’s reconsiderations relating to two other compensation claims that Mr Kennedy had made. In those claims, Mr Kennedy had said that he suffered “adjustment disorder with depression and anxiety” though the Tribunal decided that “the better view of the medical evidence is that the ailment that afflicted him was depression”.[4] In coming to the earlier decision, the Tribunal was satisfied that “on each of the occasions identified by Comcare[5] Mr Kennedy, for purposes connected with his employment or proposed employment by the Commonwealth, made a wilful and false representation that he had not previously suffered from depression”.[6] So, because of s 7(7), Mr Kennedy’s ailment was not an injury for the purposes of the SRC Act and the Tribunal decided that Comcare was not liable to pay him compensation.
[4] [2015] AATA 334 at [50] per Hack DP.
[5] Comcare identified five occasions between October 2005 and May 2012: [2015] AATA 334 at [15] per Hack DP.
[6] [2015] AATA 334 at [49] per Hack DP.
The findings made in the earlier decision are applicable to Mr Kennedy’s current application. His application is for review of Comcare’s refusal (on 15 June 2015) to extend the time within which he could request a reconsideration of Comcare’s determination (on 11 December 2014) to deny his claim that he suffered a major depressive disorder. It may be that that condition is the same pre-existing condition about which he made the wilful and false representations referred to in the earlier decision. But that does not affect the application of s 7(7) to Mr Kennedy’s current application.
Mr Kennedy made wilful and false representations that he had not previously suffered from depression. Because of s 7(7), that depression is not an injury for the purposes of the SRC Act. Comcare is not liable to pay him compensation. His application for review has no prospect of success because any reconsideration would have no prospect of success—Comcare would have to affirm its original determination.
Conclusion
For these reasons, I dismiss Mr Kennedy’s application under s 42B(1)(b) of the AAT Act.
I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple ............................[sgd]............................................
Associate
Dated 27 August 2015
Date of hearing 27 August 2015 Applicant In person Counsel for the Respondent Mr Peter Woulfe Solicitors for the Respondent Claims and Liability Management, Comcare