Kerney and Comcare (Compensation)

[2021] AATA 4140

Kerney and Comcare (Compensation) [2021] AATA 4140 (10 November 2021)

Division:GENERAL DIVISION

File Number(s):      2016/3618

Re:Cathy Kerney

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:10 November 2021

Place:Sydney

The application is dismissed pursuant to section 42A of the AAT Act and it is directed that a copy of the decision be forwarded to Mr Adams, the last known legal representative of the Applicant.

.................................[SGD].......................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – application for dismissal under section 42A of the Administrative Appeals Tribunal Act 1975 (Cth) – failure to proceed with the application – application dismissed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)

CASES

Charara v Commissioner of Taxation [2016] FCA 451

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

10 November 2021

BACKGROUND

1. On 31 July 2014, Ms Cathy Kerney (the Applicant) applied for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) for ‘RSI on right upper limb and right C8 nr Irritation ? at  1^st Rib’. She stated that she first noticed symptoms on 21 July 2014 and first obtained medical treatment on 28 July 2014.

2. The Applicant sought to attribute her condition to an incident at work, when she reached forward with her right arm to touch her computer screen whilst employed with the Commonwealth Department of Defence.

3. On 27 February 2015, Comcare (the Respondent) accepted liability for the Applicant’s ‘injury to cervical nerve root’ (the accepted condition) with a date of injury of 28 July 2014, pursuant to section 14 of the SRC Act.

4. On 16 December 2015, the Respondent determined that neither the Applicant’s employment, nor the incident from July 2014 continued to contribute to her accepted condition. Therefore, the Respondent determined from 16 December 2015, the Applicant had no present entitlement to compensation for the accepted condition in respect of medical expenses under section 16 of the SRC Act, or incapacity payments under section 19 of the SRC Act.

5. On 8 April 2016, the Applicant requested a reconsideration of the Respondent’s determination of 16 December 2015.

6. On 4 May 2016, the Respondent issued a reviewable decision affirming its determination of 16 December 2015.

7. On 12 July 2016, the Applicant lodged an application for review of decision with the Administrative Appeals Tribunal (the Tribunal).

8. Following a number of preliminary listings, the matter was first listed for hearing before the Tribunal on 24 and 25 September 2018.

9. On 9 July 2018, the Applicant’s solicitor, Mr Bart Adams (Mr Adams) requested the hearing be rescheduled.

10. A directions hearing was held on 1 August 2018, during which it was determined that the hearing scheduled for September 2018 should be vacated due to the Applicant being unwell at the time and requiring regular medical treatment.

11. Between February 2019 and October 2019, the Tribunal and the Respondent sought to engage with Mr Adams for updates on the Applicant’s condition and her fitness to proceed with her application, which garnered limited success.

12. A further directions hearing was held on 20 November 2019, during which it was agreed that the matter would be relisted for hearing between March 2020 and June 2020. The matter was eventually relisted for hearing on 12 – 14 August 2020.

13. On 5 August 2020, Mr Adams requested that the hearing be rescheduled once again, as the Applicant’s medical issues had returned. On the following day, the hearing listed for 12 – 14 August 2020 was vacated.

14. From 17 June 2021, some 10 months after Mr Adams’ request, further attempts were made to contact Mr Adams by the Respondent. These were left largely unanswered.

15. On 15 September 2021, Mr Adams emailed the Respondent stating the following:

    Dear Colleagues

    Please note our client has died [sic]

    Regards

    Bart Adams

16. On 23 September 2021, the Respondent supplied the abovementioned email and requested that the Tribunal dismiss the matter pursuant to subsection 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).

    LEGISLATIVE FRAMEWORK

17. Section 2A of the AAT Act provides that:

    In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

    (a) is accessible; and

    (b) is fair, just, economical, informal and quick; and

    (c) is proportionate to the importance and complexity of the matter; and

    (d) promotes public trust and confidence in the decision-making of the Tribunal.

18. Section 33 of the AAT Act relevantly provides that:

    (1AB) A party to a proceeding before the Tribunal, and any person representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A.

19. Subsection 42A(5) of the AAT Act provides as follows:

    Dismissal if applicant fails to proceed or fails to comply with Tribunal’s direction

    (5) If an applicant for a review of a decision fails within a reasonable time:

    (a) to proceed with the application; or

    (b) to comply with a direction by the Tribunal in relation to the application;

    the Tribunal may dismiss the application without proceeding to review the decision.

    ISSUE

20. The issue for determination is whether the Tribunal should exercise its discretion to dismiss the application pursuant to section 42A of the AAT Act.

    DISCUSSION

21. In this matter, the Tribunal is being asked to exercise its discretion to dismiss the current application.

22. These powers are not to be exercised lightly. The general principles are well enunciated by Wigney J in Charara v Commissioner of Taxation [2016] FCA 451, in which his Honour stated as follows:

    [79] The discretion must only be exercised sparingly and as a matter of “last resort” (emphasis added): Guse v Comcare (1997) 49 ALD 288 at 291. That is because it involves denying an applicant a hearing of the merits of the application. Because dismissal under s 42A(5) is a matter of last resort, the Tribunal must consider whether dismissal is the proper remedy, or whether it would be more appropriate to take some other course, such as adjourning the proceeding or making some other order to secure compliance: Guse v Comcare at 291. Again, a failure to do so would most likely constitute a misapplication of s 42A(5).

    [80] In exercising the discretion, the Tribunal must also afford the applicant procedural fairness (emphasis added): Guse v Comcare at 291. Procedural fairness would ordinarily require the Tribunal to give the applicant the opportunity to make submissions as to why the discretion should not be exercised. That would include giving the applicant an opportunity to put forward submissions concerning whether there had been a failure to comply with a direction and, if so, whether a reasonable time had elapsed since that failure. It would also ordinarily extend to giving the applicant an opportunity to explain or justify any failure, or to advance any reasons why, despite the failure, the application should not be dismissed. Depending on the particular circumstances, it might also extend to giving the applicant a further opportunity to comply or to remedy the default.

23. The history of this matter as set out in detail above demonstrates that the Tribunal has made significant efforts to give the Applicant an opportunity to progress the matter whilst she was alive. However, for a variety of reasons including illness the Applicant was never able to proceed.

24. Currently the Tribunal has no information, as to whether the Applicant’s legal representative, Mr Adams has any ongoing role now that the Applicant has died. Nor does the Tribunal have any information as to the Applicant’s executors or other legal representatives. Put simply, there is no one who is able to give instructions in this matter or to garner the necessary evidence on behalf of the Applicant to enable the matter to proceed.

25. A significant period of time has elapsed with no progress despite considerable effort to facilitate progress on the matter towards resolution.

26. There is in my view no other remedy available to the Tribunal, other than to dismiss the application under section 42A. History shows that despite numerous telephone directions hearings and other communications between the Tribunal, the Applicant and her representatives the matter has been unable to proceed. Progress is even less likely now that the Applicant has died.

27. The Tribunal has no information as to the Applicant’s executors or how to obtain this information. An adjournment is simply likely to result in the matter languishing in perpetuity. This is inconsistent with both the objectives of the Tribunal in dealing with matters expeditiously and is also likely to result in further prejudice to the Respondent who is unable to conclude the matter.

28. I am satisfied that there is prejudice to the Respondent if the matter is not dismissed. The Respondent is unable to close its files on the matter and is likely to incur further expense in having to come back to the Tribunal at a future date in order to have the matter dismissed.

29. Even if the matter were somehow to progress it is very difficult to see how relevant up to date medical evidence could be obtained given that the last medical evidence filed with the Tribunal relates to 2016.

30. In all of the circumstances I am satisfied that the appropriate course is to dismiss the application under subsection 42A(5) of the Act.

31. I have made an order that a copy of the Tribunal’s decision be sent to Mr Adams but in doing so I note he has played no active role in this matter for at least 12 months and may have no ongoing interest in the proceedings.

    DECISION

32. The application is dismissed pursuant to section 42A of the AAT Act and it is directed that a copy of the decision be forwarded to Mr Adams, the last known legal representative of the Applicant.

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

...............................[SGD].........................................

Associate

Dated: 10 November 2021

Date(s) of hearing: On the papers