Lewtas and Comcare (Compensation)

[2017] AATA 1804

Lewtas and Comcare (Compensation) [2017] AATA 1804 (4 September 2017)

Division:GENERAL DIVISION

File Number:               2016/1928

Re:Shelley Lewtas

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:L M Gallagher, Member

Date:4 September 2017

Date of written reasons:        12 October 2017

Place:Perth

On 21 September 2017, the Applicant requested the Tribunal provide a statement in writing of the Tribunal’s reasons for its decision pursuant to subsection 43(2A) of the Administrative Appeals Act 1975 (Cth).

...........[sgd].........................................................

L M Gallagher, Member

CATCHWORDS

PRACTICE & PROCEDURE – dismissal of application for failure to comply with a direction of the Tribunal within a reasonable time – reasons for decision requested by the applicant

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 2A, s 33(1AB), s33(2), s42A(5), 43(2A)

Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 62

CASES

O’Sullivan v P & O Maritime Services Pty Ltd [2016] FCA 969

Guse v Comcare (1997) 49 ALD 288

REASONS FOR DECISION

L M Gallagher, Member

12 October 2017

INTRODUCTION

1. On 4 September 2017, the Tribunal made the following order in relation to this application:

   The Tribunal is satisfied that the Applicant has failed within a reasonable time to comply with a direction made by the Tribunal under section 33(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) in relation to the application.

   Pursuant to section 42A(5) of the AAT Act, the Tribunal dismisses the application (‘Decision’).

2. By letter dated 20 September 2017, emailed to the Tribunal on 21 September 2017, the Applicant’s representative requested that the Tribunal provide to the Applicant written reasons for the Decision.  The Tribunal’s reasons for the Decision are as follows.

   REASONS FOR DECISION

3. On 16 July 2015, the Applicant lodged a “Claim for Workers’ Compensation” under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’) in respect of (T6, page 52):

   “Exacerbation of Bipolar Disorder and anxiety requiring several admissions to a hospital facility, electro convulsive therapy and addition of anti-anxiety medication.  This excarbation [sic] began with a previous bullying incident (report still to be completed) and was made worse by the treatment I received from my manager from June 2014 to June 2015 – Leanna James.”

4. On 22 October 2015, the Respondent made a determination denying liability for the Applicant’s claimed condition on the basis it was not satisfied that the Applicant sustained a psychological injury which was significantly contributed to by her employment (T31, page 287).

5. By letter dated 11 December 2015, the Applicant requested a reconsideration of the determination pursuant to section 62 of the SRC Act, stating that the primary delegate failed to give any weight or any sufficient weight, to the evidence the Applicant had provided to the Respondent and failed to properly apply the relevant law to the Applicant’s claim (T40, page 314).

6. On 16 February 2016, the Respondent affirmed its original determination (T47, page 357) (‘reviewable decision’).

7. On 8 April 2016, the Applicant lodged an “Applicant for Review of Decision” with the Tribunal stating, under the heading “Reasons for Application”:

   “The review decision is wrong in fact and law and the applicant is entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988.”

8. A preliminary conference was held before Conference Registrar Hodgson on 7 June 2016.  At this conference, the Applicant’s representative indicated they would start work on their client’s witness statement.

9. On 12 September 2016, at a further preliminary conference before Conference Registrar Powles, the parties agreed that the Applicant would file her witness statement by 9 December 2016.  The Tribunal issued a direction to this effect on the same date, along with a number of other directions in relation to the filing and serving of hearing certificates, Statements of Facts, Issues and Contentions and further evidence.

10. On 9 November 2016, the Tribunal issued directions regarding a number of medical witnesses conferring and filing and serving a Joint Statement regarding a number of issues regarding the Applicant’s application.

11. On 8 December 2016, the Applicant’s representative filed with the Tribunal and served on the Respondent the Applicant’s witness statement of the same date.

12. By listing notice of the Tribunal dated 14 November 2016, the Applicant’s application was listed for a hearing on 1, 2 and 3 May 2017.

13. On 21 February 2017, the Applicant’s representative advised that the Applicant was unable to comply with the Tribunal’s directions of 9 November 2016 given the conferral date for the medical witnesses was to take place earlier in time than one of the medical witness’s assessment of the Applicant.  On the same date, the Applicant sought and the Respondent granted an extension of 4 weeks in this regard.  Further directions to this effect were issued by the Tribunal on 23 February 2017.

14. The first directions hearing for this application was held on 11 April 2017.  The Registry notes for that directions hearing show that the parties discussed matters including lay witness conferences, further lay witness statements and further summonses.  The Registry notes also show that the Respondent’s representative sought from the Applicant’s representative confirmation as to whether events that took place in 2015 (as well as the events in 2013 that had already been canvassed) would form part of the Applicant’s claim.  The Applicant’s representative indicated that he would seek those instructions and endeavour to advise the parties and the Tribunal of those instructions within 48 hours.  The Tribunal notes that such advice was not forthcoming within that timeframe or indeed until 28 April 2017 (see paragraphs 15 and 16 below).

15. On 28 April 2017, the Respondent’s representative wrote to the Tribunal seeking that the hearing of the matter be adjourned as the matter was not ready to proceed in its entirety the following week, in a number of respects, including:

    “The applicant’s solicitor has advised us this week that the 2015 events are relevant.  These are not addressed in the applicant’s witness statement and we have expressed a preference to the applicant’s solicitor that the applicant file an amended statement addressing these issues so that the respondent can properly respond to them.  The respondent is likely to seek an opportunity to respond to the applicant’s evidence in relation to 2015 events once that evidence is adduced by further witness statement or in cross-examination.”

16. On 28 April 2017, the Applicant’s representative advised the Tribunal that the Applicant would not be consenting to the suggested adjournment and would make a verbal submission in this regard at the commencement of the hearing on 1 May 2017.

17. On 1 May 2017, the hearing in this matter commenced before the Tribunal.  The Registry notes for that hearing show that during the opening statements, the Applicant’s representative advised that the Applicant wished to adjourn the hearing because of “developments in the case” regarding some evidence filed “late in the day.”  The Respondent’s representative submitted that the document regarding the Applicant’s interaction with Ms Kelly Rhee, filed and served by the Applicant on 28 April 2017, was an important document, the Respondent was in the process of finalising Ms Rhee’s statement and the Applicant ought to be afforded the opportunity to respond.  The Respondent’s representative also raised concerns regarding the Applicant’s witness statement in that it needed to indicate when the claimed injury occurred and to clarify the claimed events in 2013 and in 2015 giving rise to it.  Presiding Member Gallagher noted the Applicant’s Statement of Facts, Issues and Contentions needed to clarify whether the Applicant’s claim was with regard to an ailment or an injury simpliciter due to the different causal tests that flowed and so that the Tribunal and the Respondent could be certain as to the claims the Respondent needed to respond to.  The hearing was adjourned so that the parties could discuss the matter and present to the Tribunal the next day with new proposed directions.

18. At the directions hearing on 2 May 2017, the Tribunal issued a number of directions, including:

    “1.By 15 May 2017, the respondent is to file and serve a witness statement of Ms Kelly Rhee and any other lay evidence upon which it intends to rely in relation to the applicant’s claim insofar as it relates to events in 2013.

    2. By 15 May 2017, the applicant is to advise the Tribunal and the respondent in writing whether she is pursuing her claim based on events in 2015, in addition to events in 2013.

    3.By 29 May 2017, the applicant is to file and serve any further evidence upon which she intends to rely, including an amended or further witness statement and any evidence in relation to the 2015 aspects of her claim if pursued.”

19. On 11 May 2017, the Tribunal notified the parties in writing that the Applicant’s matter was re-listed for hearing on 26 and 27 September 2017.

20. By letter dated 15 May 2017, the Applicant’s representative advised that the Applicant would be “pursuing her claim based on event [sic] in 2015, in addition to events in 2013.”

21. By email dated 15 May 2017, the Respondent’s representative advised the Tribunal that it had sought from the Applicant’s representative and obtained the Applicant’s consent for an extension of time of two days (to 17 May 2017) to file and serve Ms Rhee’s witness statement. 

22. On 16 May 2017, the Tribunal issued directions to this effect, which in turn extended the time for filing and serving of the Applicant’s evidence and amended witness statement to 31 May 2017.

23. On 17 May 2017, the Respondent’s representative advised the Tribunal and the Applicant’s representative that they would not be in a position to file Ms Rhee’s statement until 19 May 2017. 

24. The Respondent’s representative filed Ms Rhee’s statement with the Tribunal on 22 May 2017. 

25. In turn, on 22 May 2017 the Applicant’s representative sought a further extension of time for filing and serving the Applicant’s further evidence and amended witness statement to 6 June 2017. 

26. On 24 May 2017, the Tribunal issued a direction extending the time within which the Applicant was to file and serve any further evidence, including an amended witness statement and any evidence in relation to the 2015 aspects of her claim if pursued until 6 June 2017.

27. On 2 June 2017, the Applicant’s representative advised the Tribunal that the Applicant had experienced “a psychiatric downturn which she is seeking treatment for and she is unable to complete her statement,” and that the Applicant sought a two week extension to file her statement and that the Respondent was agreeable to this.

28. On 7 June 2017, the Tribunal issued a direction further extending the time within which the Applicant was to file and serve any further evidence, including an amended witness statement and any evidence in relation to the 2015 aspects of her claim if pursued, until 20 June 2017.

29. By letter dated 19 June 2017, the Applicant’s representative advised of her understanding that the Applicant had been admitted to the Marian Centre as a patient, had not been advised of a discharge date and as such the Applicant’s representative was not in a position to either file the Applicant’s statement or provide a time when this would be completed.  The Applicant’s representative indicated in the letter that the Respondent was agreeable to a further extension of time for the filing and serving of the Applicant’s further or amended statement.

30. The Registry notes show that at a further directions hearing on 11 July 2017, the Applicant’s representative stated that the Applicant had been quite unwell in the last two months, that she was resident in the Marian Centre and they had been unable to obtain her instructions.  The Applicant’s representative is noted to have said that they were taking a “softly” approach, that they were hoping the Applicant would be released the following Wednesday (being 19 July 2017) and that they “were not hopeful” that the matter would be ready for hearing in September.  The Registry notes show that the Respondent’s representative took no issue with the Applicant’s position, but noted that if the Applicant was able to provide her statement by the end of July 2017, it would be possible to maintain the September hearing dates.  The Respondent’s representative is also noted to have said that if the Applicant needed a lengthy amount of time to prepare her statement, then medical evidence indicating the amount of time needed should be provided.  The Applicant’s representative is noted to have then said that he agreed it was entirely reasonable for the Applicant to be required to provide medical evidence in this regard, the Applicant would need to make a decision as to whether she could proceed with her case and that this would be discussed between himself and the Applicant.  The parties agreed they would confer and propose to the Tribunal the dates for the current directions in place to be varied.  It was also canvassed that the matter, if it were heard, would require a third day.

31. On 28 July 2017, the Respondent’s representative advised that the parties had conferred and requested that the Tribunal make a number of further varied directions.

32. On 31 July 2017, the Tribunal issued a number of further varied directions, including:

    “1.The time for the applicant to comply with paragraph 3 of the Direction made on 2 May 2017 be extended to 11 August 2017.”

33. On 10 August 2017, the day before the Applicant’s statement was due for filing and serving, the Applicant’s representative wrote to the Tribunal advising that:

    “…we are unable to comply and serve the Applicant’s statement due for 11 August 2017.

    I confirm the reason in relation to the delay of serving the Applicants finalised statement is due to the Applicant’s work schedule.

    I estimate we will be able to file and serve the statement and/or evidence by close of business Friday 25 August 2017.  Therefore I propose a 2 week extension to be sought.

    Please confirm whether you would consider an extension to be sought until close of business Friday 25 August 2017.”

    [emphasis added]

34. The Tribunal notes that the Applicant’s representative’s letter dated 10 August 2017 makes no reference to the Applicant’s health, either generally or as a reason for the delay in filing her statement.

35. On 30 August 2017, the Tribunal issued a listing notice indicating a directions hearing for the Applicant’s non-compliance with paragraph 1 of its direction dated 31 July 2017 would take place on 4 September 2017.  Page 2 of the listing notice relevantly states:

    “Information for the non-complying party

    You will be required to explain why you failed to comply with the direction. The AAT may dismiss an application under section 42A(5) of the Administrative Appeals Tribunal Act 1975 (AAT Act) if an applicant fails within a reasonable time to comply with a direction. You may be asked to explain at the directions hearing why the application should not be dismissed.

    …

    Information for the party who has not failed to comply

    …

    The Respondent or other parties may make submissions regarding dismissal of an application under section 42A(5) of the AAT Act.

36. On 31 August 2017, the Applicant’s representative wrote to the Tribunal, relevantly as follows:

    “Regrettably, the Applicant’s statement which was due on 25 August 2017[1] has not been filed. 

    [1] The Tribunal notes that the Applicant’s statement remained due for filing and serving on 11 August 2017, not 25 August 2017 as requested by the Applicant, as no direction was ever made by the Tribunal (nor an agreement reached between the parties in anticipation to a direction being later issued) further extending the time to this date.  Rather, it was the Applicant’s failure to file and serve her statement by 11 August 2017 as directed, not/and her request that the date for filing and serving her statement be extend to 25 August 2017 that triggered the non-compliance directions hearing.

    Please note a background in relation to the delay in this matter:

    1.On 22 May 2017 our office received a copy of Ms Kelly Rhee statement dated 19 May 2017 which contained 271 pages;

    2.On 24 May 2017 the Applicant received a copy of Ms Rhee’s statement;

    3.On 02 June 2017 the applicant was admitted to the Marion [sic] Centre we are instructed as a result of Ms Rhee’s statement and discharged on or about 18 July 2017;

    4.The Applicant was not able to comment on Ms Rhee’s statement until such time she was starting to stabilise;

    5.The Applicant did not return to her normal working hours when she was discharged as a result of her ill health.

    6.The Applicant was advised by her treating psychiatrist that she should “ease” into work.

    7.Since the Applicant has regained a capacity to assist in preparing her statement my office has been working with her to prepare same.  This has been and continues to be a challenging process for the Applicant, however, she continues her efforts with her statement.

    8.We anticipate being in a position to file the Applicant’s statement by the middle of September.

    9.We have requested a report from her treating psychiatrist, Dr Magtengaard commenting on the Applicant’s condition in the period since her admission to the Marian Centre and her ability to provide meaningful input into the preparation of her case.  We anticipate being in a position to provide the Tribunal with a copy of Dr Magtengaard’s report in the near future.

    10.We have been advised that the Respondent will be seeking orders that the Applicant’s application be dismissed on the basis of delays in providing her statement.  Taking into account the circumstances, it is our view that this would be an unjust and inappropriate result.

    Based on the above and the unfortunate delay in finalising the statement it is our view that the hearing will not be ready to proceed in September as currently listed.

    We understand the Tribunal is not in existence for the convenience of the parties, however, we believe that the circumstances experienced by the Applicant in this case can be viewed as exceptional.

    We note our office was advised that once the Respondent representative receives the Applicant’s statement regarding 2015 they might need to obtain a statement from a further witness.

    The Applicant’s counsel has advised that it might be preferable for the psychiatrists to review the Applicant’s witness statement, which will form her evidence in chief, prior to the joint statement of the experts being finalised.”

    [emphasis added]

37. A non-compliance directions hearing was held before Member Gallagher on 4 September 2017.  The Applicant was represented by Ms Ruzica Pavleska of Slater & Gordon Lawyers. The Respondent was represented by Ms Allyson Ladhams from the Australian Government Solicitor.  At the directions hearing, the following submissions were made by the parties and comments made by Member Gallagher:

    (a)With regard to the Applicant’s ability to provide meaningful input to the preparation of her case (refer to point 9 of the letter extracted at paragraph 36 above), Ms Pavleska said that the Applicant was waiting on a report from Dr Magtengaard, which her firm had sought to obtain to accommodate the Respondent’s request that the Applicant provide a medical report outlining the Applicant’s difficulties to date in providing her amended statement, including the fact of her stay at the Marian Centre. 

    (b)The Applicant’s representative said that her instructions were to proceed to a hearing, although it was unlikely that this would take place in September as listed.

    (c)Ms Ladhams said that the Respondent sought an order that the matter be dismissed as there had been a number of delays with the Applicant’s provision of her amended statement.  Ms Ladhams noted the Tribunal’s directions dated 2 May 2017 and acknowledged the Respondent had been one week late in filing Ms Rhee’s statement and that the date for the Applicant to file and serve her amended statement had been extended to 7 June 2017 accordingly.  Ms Ladhams also noted that date of 7 June 2017 had been further extended to 20 June 2017 due to ‘medical reasons’ (being what the Applicant’s representative had indicated to be the Applicant’s ‘psychiatric downtown,’ however no further details or supporting medical evidence were provided in this regard).

    (d)Ms Ladhams noted the Applicant’s representative had then (on 19 June 2017, the day prior to the amended statement being due for filing) advised of the Applicant’s admission to the Marian Centre and the parties agreed to a further extension of time to 11 August 2017 for the Applicant to file and serve her amended statement.

    (e)Ms Ladhams said that the Applicant’s representative then requested an additional two week extension (again, on 10 August 2017 the day prior to the statement being due for filing) to 25 August 2017, with the reason for the delay being the Applicant’s work schedule.  Ms Ladhams noted that at this time the Applicant’s health was not cited as a reason for the delay.

    (f)Ms Ladhams said that the Applicant had been discharged from the Marian Centre for approximately six weeks and has had sufficient time to prepare and file her amended statement.  Ms Ladhams said it is only now that the Applicant is saying her health has been the reason for the delay throughout the entire period. Ms Ladhams requested on behalf of the Respondent that the matter be dismissed under subsection 42A(5) of the Administrative Appeals Tribunal Act 1975 (‘AAT Act’).

    (g)Member Gallagher noted that the Applicant’s psychiatrist’s advice had purportedly been to “ease” into work (refer to point 6 of the letter extracted at paragraph 36 above).  When asked by Member Gallagher as to the Applicant’s working arrangements, Ms Pavleska said that the Applicant had been working for six hours per day since her discharge from the Marian Centre.  Member Gallagher noted this did not appear to accord with points 5 and 6 of the letter extracted at paragraph 36 above.

    (h)Ms Pavleska said that she had been advised that the Applicant’s amended witness statement would need to incorporate a reply to Ms Rhee’s statement and the Applicant’s partner had instructed that Ms Pavleska’s firm were not to communicate with her until her discharge from the Marian Centre.

    (i)Having heard from the parties, Member Gallagher said that a reasonable time had passed, she was not confident that the Applicant’s amended statement was going to be filed and served within a reasonable timeframe and there was no indication from the Applicant’s representative as to when this may take place. Member Gallagher said that she was satisfied that the Applicant had had reasonable notice that the Respondent would be seeking an order that the Applicant’s application be dismissed on the basis of delays in providing her statement (referring to point 10 of the letter extracted at paragraph 36 above) and that the Applicant may, at the non-compliance directions hearing, be asked to explain why the application should not be dismissed (referring to the extract from the listing notice at paragraph 35 above). On that basis, Member Gallagher ordered that the application be dismissed under subsection 42A(5) of the AAT Act

1. The Applicant failed to comply with paragraph 1 of the directions made on 31 July 2017, which extended the time for the Applicant to comply with paragraph 3 of the directions made on 2 May 2017 (to file and serve any further evidence including her further or amended witness statement), by 11 August 2017.

2. The Tribunal considers that it gave the Applicant “reasonable time” within which to comply with its directions, numerous directions extending the filing and serving of further evidence including the Applicant’s further or amended witness statement, from 29 May 2017 to 11 August 2017 (some three and a half months), that its decision to dismiss the Applicant’s review application was justified in the circumstances of the particular case and that the Applicant was afforded procedural fairness before the Tribunal in the way in which the Tribunal dismissed her application. 

3. The Tribunal acknowledges the Applicant’s representative had taken steps obtain an explanation for the delay in the form of Dr Magtengaard’s report, however it is unclear exactly when this request was made, when the report would become available and in any event the Tribunal was only advised of this for the first time in the letter from the Applicant’s representative dated 31 August 2017, more than 3 weeks after the incident of non-compliance.  The Tribunal notes there was no mention of the Applicant’s health being a reason for the delay in the letter from the Applicant’s representative dated 10 August 2017 seeking a further extension of two weeks and there had essentially been a six week time lapse between the Applicant’s discharge from the Marian Centre (during which the Applicant has, according to her representative, worked six hours each day) and the Applicant’s representative’s advice that her ill health has caused further delays.

4. The Tribunal notes the distinction between the present matter and the decision of Judge Siopis in O’Sullivan v P & O Maritime Services Pty Ltd [2016] FCA 969 at [8] as in the present application, the Tribunal had, as it made clear at the non-compliance directions hearing, first sought submissions from the Applicant in respect of the Respondent’s application to dismiss her application under subsection 42A(5)(b) of the AAT Act on the grounds of non-compliance, prior to dismissing the application under that subsection. The Tribunal also notes the decision of Guse v Comcare (1997) 49 ALD 288 referred to in paragraphs [10] and [11] of the O’Sullivan decision and considers that the Applicant had, in the present matter, been given a reasonable opportunity to explain, or advance reasons why the matter should proceed despite the non-compliance.

5. The Tribunal also notes that the Applicant first lodged her review application on 8 April 2016 such that, at the time her application was dismissed, on 4 September 2017, the matter had been on foot for approximately one year and five months without being able to be progressed to hearing essentially, at least for the last five months, as a result of the Applicant’s failure to assist the Tribunal by providing it with information it considers necessary to have at its disposal in order to properly execute its merit review function and fulfil its statutory objective in section 2A of the AAT Act (see subsection 33(1AB) of the AAT Act).

   DECISION

6. For the reasons outlined above, the Tribunal dismisses the application.

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member

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Administrative Assistant - Legal

Dated: 12 October 2017

Date of hearing:	4 September 2017
Representatives for the Applicant:	Ms R Pavleska
Solicitors for the Applicant:	Slater and Gordon Lawyers
Representatives for the Respondent:	Ms A Ladhams
Solicitors for the Respondent:	Australian Government Solicitor