Mitchell and Comcare (Compensation)

Mitchell and Comcare (Compensation) [2020] AATA 257 (4 February 2020)
Division:GENERAL DIVISION
File Number: 2017/3827
Re:Sonia Mitchell
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:4 February 2020
Date of written reasons: 20 February 2020
Place:Melbourne

The Tribunal is satisfied that the Applicant has failed within a reasonable time to proceed with the application. Pursuant to section 42A(5) of the Administrative Appeals TribunalAct 1975, the Tribunal dismisses the application.
...............[sgd].........................................................
Senior Member D. J. Morris
Catchwords
PRACTICE AND PROCEDURE – workers’ compensation application – extensive procedural history – where applicant has several times applied for vacation of hearings – where tribunal has re-listed hearing several times – where applicant has not complied with directions of tribunal – where applicant’s general practitioner advises applicant not able to represent herself or participate in hearing in stated period – hearing again vacated – where further medical certificate sought by Tribunal – where applicant’s general practitioner advises applicant not able to participate in hearing for foreseeable future – power of the Tribunal to dismiss – principles of fairness in cases where an applicant is self-represented - Tribunal decides to dismiss application for failure to proceed – written reasons requested – Tribunal not required to provide written reasons for interlocutory decision – written reasons given to parties
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 2A(b), 34J, 35(2), 41(2), 42A(5), 42A10), 43(2A)
Administrative Decisions (Judicial Review) Act 1977, s 13(1)
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 16, 57
Cases
Negri v Secretary, Department of Social Services [2016] FCA 879
Rajski v Scitec Corporation Pty Ltd (unreported, NSWCA, Kirby P, Samuels and Mahoney JJA, 16 June 1986)
REASONS FOR DECISION
Senior Member D. J. Morris
20 February 2020

These are the reasons for a procedural decision made at a directions hearing held by telephone on 4 February 2020. The Applicant, Mrs Sonia Mitchell, and Ms Cailin Farrell of Sparke Helmore Lawyers, representing the Respondent, participated. At the conclusion of the hearing, the Tribunal decided to dismiss the application for failure to proceed, exercising the discretion available under section 42A(5) of the Administrative AppealsTribunal Act 1975 (the AAT Act), and gave oral reasons for that decision.
On 12 February 2020 the Applicant made a request for written reasons for the decision. Section 43(2A) of the AAT Act provides that a party may, where the Tribunal does not give reasons in writing for its decision, within 28 days after the day of the decision, request a statement in writing of the reasons for the decision, and the Tribunal shall within 28 days of the request, give to the party that statement. Section 43, however relates to circumstances where the Tribunal has made a decision on review, in other words to affirm, vary, or set aside the reviewable decision (see section 41(1)). The decision to dismiss this application is not in that category, because the Tribunal did not get to the stage of conducting a merits review of the decision which was the subject of Mrs Mitchell’s application for review. This statement does not contain findings on material questions of fact (see section 43(2B) of the AAT Act) in relation to the Respondent’s decision regarding continuing liability for the Applicant’s medical treatment costs.
The Tribunal has no obligation under the AAT Act to provide a statement of reasons for an interlocutory decision of this nature. It could be argued that the decision of the Tribunal to dismiss the application is a ‘decision’ within the compass of section 13(1) of the Administrative Decisions (Judicial Review) Act 1977. It is not necessary to expound on that question, because the Tribunal takes the view that, given it was an oral decision, and a party has made a request for reasons in writing, procedural fairness would be served by giving written reasons to both parties.
In Negri v Secretary, Department of Social Services [2016] FCA 879 (Negri), Bromberg J considered a matter before the Tribunal where an oral decision had been made and a statement of written reasons had been subsequently supplied. His Honour stated at [27]:
… as long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).
These reasons have been written consistent with the approach suggested in Negri. New reasoning for the decision has not been introduced, but this written statement is a fuller explanation of the reasons given orally at the conclusion of the interlocutory hearing on

4 February 2020, including a more detailed chronology of the procedural history and the citation of a relevant authority regarding the treatment of an unrepresented applicant in curial (or, in this case, Tribunal) proceedings.
Procedural history of application
The Applicant lodged her application for review with the Tribunal on 28 June 2017 (T2, p 6-107). She sought review of a reviewable decision by a Review Officer of Comcare dated 4 May 2017 (T81, p 412). That decision stated:
I have completed your request for an independent review of the determination dated 17 March 2017, which accepted liability for the following medical treatment under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act):
·Reasonable expenses based on Comcare’s fee schedule for consultations with your general practitioner.
·Once per fortnight you were covered to have any one of the following treatments – either chiropractor, massage or acupuncture.
This treatment was approved for the period 8 March 2017 up to and including
8 June 2017.
I have carefully considered the evidence and conclude that the original determination can no longer be sustained and it has therefore being varied.
In varying the determination I accept chiropractic, massage or acupuncture treatment, for one session per fortnight, for only one of these treatments for the period 8 March 2017 to 9 May 2017. As at 10 May 2017, you have no present entitlement to chiropractic, massage and acupuncture.
Therefore, in short, as at 10 May 2017 the Applicant had no present entitlement to chiropractic, massage and acupuncture and liability was denied for those treatments under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act.)
On 28 June 2017 the Applicant lodged a request for a stay of the implementation of the decision under review. The Respondent opposed the request for the stay on the basis that if the reviewable decision was affirmed, it would thereby create a debt owed by the Applicant to Comcare which it would be onerous for her to repay.
The Respondent lodged documents with the Tribunal and the Applicant in accordance with section 37 of the AAT Act on 2 August 2017 (T-documents).
On 18 August 2017 another Senior Member of the Tribunal held an interlocutory hearing to consider the Applicant’s request for a stay. The Tribunal declined the request of the Applicant to make an order for a stay under section 41(2) of the AAT Act.
The Respondent arranged for the Applicant to see a medical specialist in order that a medical report be prepared for the hearing. The Respondent advised the Tribunal that the Applicant made two requests for the appointment with the specialist to be re-scheduled and the Respondent advised that it would issue a notice under section 57 of the SRC Act. Section 57 provides that the Respondent may require an employee who has made a claim for compensation to undergo an examination by a legally qualified medical practitioner nominated by the nominated authority (in this case Comcare). It is not clear to the Tribunal whether such a notice was, in fact, issued.
On 12 October 2017 the Applicant lodged a request with the Tribunal for the matter to “be dismissed in [her] favour”.
On 13 October 2017 the Tribunal held an interlocutory hearing and explained that it did not have the power to “dismiss the matter in her favour” and formally refused

Mrs Mitchell’s request for dismissal on the basis that she misunderstood the effect of the request. At that hearing there was also a discussion between the Tribunal and parties of the need for the Applicant to see the specialist doctor nominated by Comcare, in order that he can provide a medical report relevant to her claim, to be considered at the hearing of her matter.
On 23 November 2018 the Applicant made a written request to the Tribunal that the matter be heard by a different Tribunal Member.
On 27 November 2018 the Applicant was advised that it is not the practice of the Tribunal to reconstitute a matter once constituted to a Member at the request of a party.

Mrs Mitchell was further advised that she could raise the request that the matter be reconstituted at a telephone directions hearing scheduled for 4 December 2018 if she chose to do so.
On 28 November 2018 the Applicant made a written request for the telephone directions hearing scheduled for 4 December 2018 to be adjourned for family reasons. The Tribunal granted the request the same day and re-listed the directions hearing for

11 December 2018.
At the directions hearing on 11 December 2018, the Applicant was directed to lodge any further submissions by 1 March 2019. That date was subsequently extended, at the request of the Applicant, to 8 April 2019.
On 3 April 2019 the Applicant made a further request that the date be extended by “2-4 weeks”. Subsequently, on 17 April 2019 the Applicant requested a 14 day extension until 13 May 2019.
On 24 April 2019 the Applicant requested that a new Tribunal Member hear the matter on the basis that the Deputy President who constituted the matter to me had heard a previous application brought to the Tribunal by the Applicant. Mrs Mitchell further requested that the matter be heard by a female Member for ‘gender balance’ on the basis, she said, that the representative of the Respondent (at the time) was a male and that the presiding Member was male. The Applicant nominated a named female Member that she would like her matter re-constituted to. The Tribunal did not re-constitute the matter.
On 3 May 2019 the Tribunal wrote to the Applicant to advise her that she appeared not to have complied with a direction to provide hearing certificates for witnesses she wished to call, or any further submissions she wanted to make, and advised that a directions hearing would be held on 10 May 2019 to consider the non-compliance.
On 10 May 2019 there was a directions hearing in relation to the Applicant’s failure to comply with a direction of the Tribunal and the Tribunal made an order granting the Applicant a further 10 days to comply, and, on a separate matter, granted her request for the hearing to be in private, under section 35(2) of the AAT Act.
The matter was listed for substantive hearing in the period from 19 to 21 June 2019.
On 14 June 2019, the Applicant requested a ‘2 month adjournment’ on medical grounds, so that she would be better prepared for the hearing and to assure the availability of a medical witness. The Applicant provided two medical certificates from her treating general practitioner, Dr Yousef Khoury of Bell Street Family Medical Centre.
The first certificate dated 22 May 2019 stated that Mrs Mitchell would be unable to ‘attend work/school’ in the period from 22 May 2019 to 5 June 2019. The second certificate dated 5 June 2019 advised that she would be unable to attend “work/school” for the period

5 June 2019 to 19 June 2019 inclusive. The Tribunal vacated the hearing.
The matter was then re-listed to be heard in the period from 16 to 18 September 2019. Mrs Mitchell provided a medical report from Dr Khoury dated 10 July 2019 advising that in his opinion: ‘Mrs Mitchell is unable to stand trial [sic] and represent herself as this will aggravate her mental health.’ The hearing was vacated.
The matter was then, again, re-listed to be heard in the period from

6 to 8 November 2019.
On 7 October 2019 the Applicant made a fresh request for a stay of the reviewable decision. On 9 October 2019 the Tribunal refused the request and advised that the matters the Applicant raised were matters she could put at the substantive hearing.
On 23 October 2019 the Applicant provided a letter from Dr Khoury, of the same date, advising that Mrs Mitchell was suffering a medical condition and was unable to ‘attend court’ until her condition had stabilised. The Applicant also provided a letter from

Dr Linda Troselj, the Applicant’s treating clinical psychologist. Dr Troselj advised that she was ‘In support of a hearing on the papers’ as in her opinion the Applicant attending the Tribunal on 6 to 8 November 2019 would exacerbate her mental health condition. The Respondent responded by reiterating it did not consent to a hearing on the papers, but did not oppose the request for an adjournment. On 24 October 2019, the Tribunal vacated the hearing listed on 6 to 8 November 2019.
On 24 October 2019 the Tribunal made a direction that the Applicant’s medical practitioner and/or clinical psychologist provide a report addressing the following specific questions:
Is Ms Sonia Mitchell, an applicant in proceedings before the Administrative Appeals Tribunal, as at the date of the medical opinion, medically able to participate in a hearing, including making submissions, giving evidence and asking questions of witnesses?
If not, will she be so able in the period 13 January to 28 February 2020?
If not, when in your opinion will she be able to do so?
On 4 December 2019 Dr Khoury provided a certificate in relation to the Applicant. Dr Khoury did not specifically address the questions, as stipulated by the Tribunal and set out above, but he did state:
This is to confirm that Mrs Sonia Mitchell is unable to participate in a hearing during the period of 13 January 2020 to 28 February 2020. I am currently unable to give a date that she will be able to attend. Mrs Mitchell is scheduled to attend a review appointment with myself [sic] on 29 January 2019.
On 6 December 2019 the Tribunal made a direction noting that the Applicant was to see Dr Khoury on 29 January 2020 and that the matter was to be listed for a directions hearing on 4 February 2020, and directed that the Applicant provide the Tribunal and the Respondent with a medical letter from Dr Khoury following her appointment indicating
(a)his opinion on her capacity to continue her application and;
(b)if his opinion is that the Applicant is not capable at that time, a specific timeframe when she will be.
On 3 February 2020, in response to the Tribunal’s direction, the Applicant forwarded to the Tribunal a fresh medical report from Dr Khoury, dated 29 January 2020, written after he saw the applicant that day.
In his new report, Dr Khoury wrote:
This is to certify that currently Mrs Sonia Mitchell is unable to continue with her application.
I am currently unable to give a date that she will be able to attend. Mrs. Mitchell is scheduled to attend a review appointment with myself on 25 March 2020.
(Emphasis added.)
CONSIDERATION
Section 34J of the AAT Act provides for circumstances in which a hearing may be dispensed with. It states:
If:
(a) it appears to the Tribunal that the issues for determination on the review of a decision can be adequately determined in the absence of the parties; and
(b) the parties consent to the review being determined without a hearing;
The tribunal may review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing.
On 17 June 2019 the Tribunal had asked the parties for their view about the possibility of a hearing on the papers, under section 34J, given the ongoing health concerns the Applicant had expressed to the Tribunal. As can be seen, that section allows the Tribunal to consider an application for review without holding a hearing, but the AAT Act requires the agreement of all parties (in this matter, the two parties Mrs Mitchell and Comcare) before the Tribunal can embark on this course. The Applicant consented to such a hearing.
On 24 July 2019 the Respondent’s legal representative wrote to the Tribunal, copied to the Applicant, and relevantly said:
The application raised disputed issues regarding the compensable lower back injury and the benefits of the ongoing physical therapies sought by the applicant.
We are instructed to object to the matter being heard “on the papers” because both the applicant and expert witnesses are required to be cross-examined to assist in resolving factual and medical issues.
In this circumstance, a hearing on the papers could not proceed. The Respondent later twice reiterated to the Tribunal and the Applicant that it would not consent to

Mrs Mitchell’s application being heard on the papers.
Section 42A(5)(a) of the AAT Act provides the Tribunal with a discretionary power in relation to an application. The subsection states:
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.
[…]
the Tribunal may dismiss the application without proceeding to review the decision.
The delay in bringing this matter to hearing is regrettable for a number of reasons. The Tribunal noted in the hearing that section 2A(b) of the AAT Act includes as an objective of the Tribunal that it must pursue a mechanism of review that is “fair, just, economical, informal and quick.”
The Tribunal told the parties that it must take into account the medical opinion of the Applicant’s treating general practitioner in regard to her ability to participate in a hearing, given that she is self-represented.
The reason the Parliament established the Administrative Appeals Tribunal in 1975 was to establish a mechanism for persons to have access to merits review of decisions, where that is provided in the law (as it is, in this case, in the SRC Act).
However, the onus is on persons who have lodged applications to be ready to bring their matters forward in a timely way. On reviewing the procedural history of this matter, I did not conclude that Mrs Mitchell has not had regard for the authority of the Tribunal, but the fact of the matter is that the Tribunal cannot review a matter on behalf of an applicant where that person is unable, for whatever reason, to participate, or to have a representative do so on his or her behalf.
Since it commenced operation in 1976, the Tribunal has endeavoured, consistent with its statutory purpose, to provide an avenue of review which is relatively informal for applicants and others involved, compared with what they may face in formal curial proceedings. However, informality and taking account of an applicant being unrepresented cannot be allowed to subvert the basic principles of fairness to all parties in a matter.
In these written reasons, it is relevant to cite the general principles governing the role of the judge in civil proceedings involving an unrepresented litigant which are, by extrapolation, relevant in this case. Samuels JA stated in Rajski v Scitec Corporation PtyLtd (unreported NSWCA, 16 June 1986) (Rajski), at [14]:
In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent … At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.

One must read His Honour’s words in the context that the Tribunal does not, as a court does, conduct an ‘adversarial’ procedure in a strict sense, it is still necessary for any applicant to be able to marshal written or oral submissions. Such an applicant must also be able to to respond to the same from a respondent and the Tribunal, and raise pertinent matters at a hearing that he or she wishes the Tribunal to consider, in making their contention, expressed in lodging an application for review, that the original decision under review was a wrong decision.
Procedural fairness is essential, but that concept means fairness to all parties appearing in a matter, and the Tribunal runs the risk of failing to apply this measure evenly if, in taking account of an unrepresented applicant who is unfamiliar with the processes of the Tribunal, it has the effect of giving that party an unfair “positive advantage” or “privileged status”, as Samuel JA said in Rajski. The Tribunal has been lenient in the history of this application in granting several extensions to the Applicant and in not previously dismissing her application for non-compliance with directions.
The consistency of the medical advice that the Applicant has provided to the Tribunal is relevant. On 10 July 2019 Dr Khoury advises that the Applicant is unable to represent herself at the hearing for medical reasons. On 23 October 2019 Dr Khoury advised that the Applicant was unable to participate in a hearing until her medical condition has stabilised, but did not give a date when he anticipated that stabilisation would occur.

Dr Troselj was of the view, as a clinical psychologist, that the Applicant attending the Tribunal would exacerbate a mental health condition, albeit Dr Troselj’s opinion was confined to a period in November 2019. Last December, Dr Khoury’s opinion was that the Applicant was unable to participate in a hearing to the end of February 2020, some three months hence, and he could not then give a date when she would be able to participate.
Most recently, on 29 January 2020, Dr Khoury provided written advice that Mrs Mitchell was, in his words, “unable to continue with her application”. Further, he was unable to say, speaking as her doctor, when in the future she would be able to attend the Tribunal.
On this weight of medical evidence, particularly on the basis of the most recent report by

Dr Khoury, the Tribunal was satisfied that the Applicant is not able to proceed with her application before the Tribunal. The Tribunal was also satisfied on the evidence that there is no indication that she will be so able within a foreseeable time. This must be considered in the context that the original decision was made in March 2017 and varied in May 2017, and that several attempts have been made to hear the matter.
Accordingly, the Tribunal decided to exercise the discretion provided under section 42A(5)(a) of the AAT Act to dismiss the application without proceeding to review the decision.
The Tribunal advised the parties at the hearing that the AAT Act provides for reinstatement of an application in certain circumstances. The relevant section of the AAT Act is section 42A(10), which reads:
If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
As a closing note, the Tribunal should make clear that the wording of section 41A(5)(a) of the AAT Act is perhaps a little raw. It states that if an applicant “fails” within a reasonable time to proceed with the application, the Tribunal may dismiss the application. Although that is what has happened, it could enhance the proper understanding of the discretionary power if subsection also provided that it is exercisable where an applicant is unable to proceed. That would be a more accurate description of what has factually transpired in this instance. That is the advice that the Tribunal has accepted from Dr Khoury: that the Applicant in this case is unable to proceed and that he cannot advise a date when she will be able to proceed. In this circumstance, the Tribunal cannot see that the Applicant will be able to proceed in the foreseeable future.
The Tribunal understands that this decision will disappoint the Applicant, but in this case consideration must also be given to the principles in section 2A of the AAT Act, and in affording procedural fairness to the Respondent.
DECISION
The Tribunal is satisfied that the Applicant has failed within a reasonable time to proceed with the application. Pursuant to section 42A(5) of the Administrative Appeals TribunalAct 1975, the Tribunal dismissed the application.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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Associate
Dated: 20 February 2020

Date of hearing: 4 February 2020

Applicant: In person

Solicitors for the Respondent: Ms Cailin Farrell
Sparke Helmore Lawyers

[2020] AATA 257

4 February 2020

Key Legal Topics

Areas of Law

Administrative Law

Employment Law

Legal Concepts

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Date of hearing:	4 February 2020
Applicant:	In person
Solicitors for the Respondent:	Ms Cailin Farrell Sparke Helmore Lawyers