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

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’).
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
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.”
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).
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).
On 16 February 2016, the Respondent affirmed its original determination (T47, page 357) (‘reviewable decision’).
On 8 April 2016, the Applicant lodged an “Applicant for Review of Decision” with…

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.

Continue reading Lewtas and Comcare (Compensation)

Details

AGLC: Lewtas and Comcare (Compensation) [2017] AATA 1804
Case: [2017] AATA 1804
Decision Date: 4 September 2017

CaseChat Overview and Summary

This matter concerned an application for review of a decision by Comcare, lodged by the Applicant on 8 April 2016. The dispute centred on the Applicant's failure to comply with directions issued by the Administrative Appeals Tribunal (AAT) regarding the filing of her witness statement. The AAT, constituted by Member L M Gallagher, was required to determine whether to dismiss the Applicant's application for non-compliance.

The primary legal issue before the Tribunal was whether the Applicant had failed to comply with a direction within a reasonable time, and consequently, whether the application should be dismissed pursuant to section 42A(5) of the *Administrative Appeals Tribunal Act 1975*. The Tribunal also considered the reasons provided for the Applicant's non-compliance and whether those reasons justified an extension of time or warranted dismissal of the application.

The Tribunal's reasoning focused on the Applicant's repeated failures to meet filing deadlines and the lack of a consistent or substantiated explanation for these delays. While initial delays were attributed to the Applicant's health and the need to obtain instructions, a subsequent letter from the Applicant's representative on 10 August 2017 cited the Applicant's "work schedule" as the reason for failing to file her statement by the extended deadline of 11 August 2017, making no reference to her health. The Tribunal noted that the Applicant's representative had previously agreed that medical evidence would be required if the Applicant needed a lengthy period to prepare her statement. Given the lack of a satisfactory explanation for the continued non-compliance and the potential prejudice to the Respondent, the Tribunal found that the Applicant had failed to comply with directions within a reasonable time.

The Tribunal ordered that the Applicant's application for review be dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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. 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. 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.” 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] 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. 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 partyYou 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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