Mitchell and Comcare (Compensation)

[2016] AATA 141

Mitchell and Comcare (Compensation) [2016] AATA 141 (11 March 2016)

Division:  GENERAL DIVISION

File Number:  2014/5260

Re:  SONIA MITCHELL

APPLICANT

And:COMCARE

RESPONDENT

DECISION

Tribunal  Deputy President S A Forgie

Date  11 March 2016

Place  Melbourne

The Tribunal decides:

under s 42A(5)(a) and (b) of the Administrative Appeals Tribunal Act 1975 (Cth) to dismiss the application lodged by the applicant on 10 October 2014.

………[sgd]..………….

Deputy President

CATCHWORDS –  PRACTICE AND PROCEDURE – conditional withdrawal – nature of withdrawal – whether conditional withdrawal constitutes a withdrawal – power of Tribunal to consider substantive issues without a hearing – failure of applicant to proceed with application or comply with direction within reasonable time – application dismissed

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 2A, 25(1), 34E, 34J, 34J(a), 34J(b), 37, 39(1), 42A(1A), 42A(1AA), 42A(1B), 42A(2), 42A(5), 42A(5)(a), 42A(5)(b), 42A(8), 42A(8A), 42A(8B), 42A(10), 42C

Income Tax Assessment Act 1997 (Cth) – ss 5-15(1), 6-1, 6-5(1), 6-5(2)

Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4(1), 14(1), 16, 16(1), 16(2), 19, 19(1), 19(2), 19(2A), 19(4), 29

CASES
Minister for Immigration and Multicultural Affairs v Eshutu (1999) 197 CLR 611; 162 ALR 577
Sun v Minister for Immigration and Ethnic Affairs [1997] FCA 324

REASONS FOR DECISION

1. On 7 July 1997, Comcare accepted liability for soft tissue injury to Ms Mitchell’s low back, neck, shoulder and both wrists (compensable injury) up to and including 12 September 1997. If she needed to claim compensation beyond that date, it advised her to provide further supporting medical material. Comcare has made numerous decisions over the years accepting liability to pay her various amounts of compensation under ss 16, 19 and 29 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). On 26 September 2014, it affirmed its earlier decision dated 27 May 2014 to decline to pay her compensation under s 19 in respect of the period 26 April 2007 to 16 June 2008. Ms Mitchell lodged an application for review of that decision on 10 October 2014. The matter has proceeded but Ms Mitchell has failed to comply with a summons issued by the Tribunal at Comcare’s request and has failed on two occasions to comply with my directions to produce the same material. On 27 January 2016, she lodged a notice stating that she withdrew her application if I did not decide to set aside Comcare’s decision and substitute a decision that she was entitled to compensation under s 19 in respect of her compensable injury for the period 26 April 2007 to 16 June 2008. I have decided that a conditional withdrawal cannot be regarded as a withdrawal for the purposes of s 42A(1A) of the Administrative Appeals Tribunal Act 1975 (AAT Act) so that her application is taken to have been dismissed.  I have also decided that I do not have power to undertake a review in the circumstances stipulated in her condition.  Finally, I have decided to dismiss her application under s 42A(5) of the AAT Act. 

BACKGROUND

1. The SRC Act provides for the payment of workers’ compensation to employees of the Commonwealth and certain corporations.  At all relevant times, Ms Mitchell was an employee of the Commonwealth as she was employed by a Commonwealth authority, the Aboriginal Hostels Limited (AHL).[1]  Section 14(1) of the SRC Act provides that:

   “Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”

   [1] Definitions of “Commonwealth” and “Commonwealth authority”: SRC Act; s 4(1)

1. On 13 June 1997, Ms Mitchell lodged a claim for compensation for an injury to her right shoulder, neck, left foot, lower back, right hand and legs as a result of a motor vehicle accident in which she was involved on her way to work on 11 June 1997.[2]  On 7 July 1997, Comcare accepted liability for soft tissue injury of the low back, neck, shoulder and both wrists (compensable injury) up to and including 12 September 1997.  If she needed to claim compensation beyond that date, Comcare advised Ms Mitchell to provide further supporting medical material.[3] 

   [2] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents); T3 at 16-18

   [3] T documents; T4 at 22  

1. The Part to which s 14(1) refers is Part II. It specifies the compensation that is payable. Compensation that is payable ranges from compensation for loss or damage to property used by an employee in certain circumstances under s 15 to funeral expenses under s 18 when an injury results in death. Of relevance in Ms Mitchell’s case are ss 16, 19 and 29.

Section 16: medical treatment

1. Section 16 applies whether or not an injury results in death, incapacity for work or impairment.[4] Section 16(1) provides:

   “Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.”

   [4] SRC Act; s 16(2)

1. On 29 March 2001, Comcare accepted liability up to and including 30 June 2001 for medical expenses for chiropractic treatment.[5] It did so under s 16 of the SRC Act and continued to accept liability over the years. On 14 May 2007, for example, Comcare accepted liability for Ms Mitchell to consult her General Practitioner and for her to obtain chiropractic treatment up to and including 31 October 2007.[6]  On 31 January 2008, Comcare accepted liability for further chiropractic treatment and consultations with her General Practitioner until 29 February 2008.[7]  Comcare extended its liability to 31 August 2008 and then to 15 May 2009.[8]  On the documents I have, Comcare continued to accept liability for medical expenses of this sort up until 3 December 2014.[9]

   [5] T documents; T58 at 340

   [6] T documents; T58 at 341

   [7] T documents; T58 at 342

   [8] T documents; T 58 at 344 and 346

   [9] T documents; T58; 347-422

Section 29: household and attendant care services

1. Where, as a result of an injury, an employee obtains household services that he or she reasonably requires, Comcare is liable to pay compensation under s 19(1). The amount of that compensation is a weekly amount that Comcare considers reasonable in the circumstances but not less than 50% of the amount the employee pays each week for those services nor more than $200.

1. Under s 29, Comcare has also accepted liability at various times for the cost of items such as a chair and a bed as well as weeding, household help, gardening services, lawn mowing and cleaning. In the material that I have, Comcare last accepted liability for household services of this sort in a decision dated 25 August 2014.[10]

   [10] T documents; T58 at 374-376

Section 19: compensation for injuries resulting in incapacity

1. Section 19 provides for payment of compensation when an employee is incapacitated for work as a result of an injury. Its provisions are subject to ss 20, 21, 21A or 22 of the SRC Act but they are not relevant in this case. The basic formula for working out the amount of compensation payable to an employee is set out in s 19(2):

   “Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:

   NWE  -  AE

   where:

   AE is the greater of the following amounts:

   (a)the amount per week (if any) that the employee is able to earn in suitable employment;

   (b)the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.

   NWE is the amount of the employee’s normal weekly earnings.”

1. Section 19(2A) explains when a week is a “maximum rate compensation week” in relation to an employee.  It is such a week if:

   “(a)     it is a week during which the employee’s incapacity prevents the employee working the employee’s normal weekly hours because the employee is unable to work or unable to work at the level at which the employee worked before the injury; and

   (b)the total number of hours that the employee has been prevented from working, or working at that level, during that incapacity, in that week and in all previous weeks, if any, to which paragraph (a) applies, does not exceed 45 times the employees’ normal weekly hours.”

1. The remaining provisions of s19 qualify the application of the formula in various circumstances. The only one that is relevant in this case is s 19(4). It prescribes the matters to which Comcare must have regard in determining the amount that an employee is able to earn in suitable employment:

   “In determining for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:

   (a)where the employee is in employment (including self-employment) – the amount per week that the employee is earning in that employment;

   (b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;

   (c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;

   (d)where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition – the amount that the employee would be earning in that employment if he or she were engaged in that employment;

   (e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment – the amount per week that, having regard to the state of the labour-market at  the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;

   (f)where paragraph (b), (c), (d) or (e) applies to the employee – whether the employee’s failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare’s opinion, reasonable in all the circumstances; and

   (g)any other matter that Comcare considers relevant.”

1. On 21 September 2009, Comcare denied liability for incapacity under s 19 of the SRC Act. On review on 13 October 2011, Comcare revoked that determination and, in its place, determined that Ms Mitchell was entitled to incapacity payments for the period 16 June 2008 to 11 October 2008.[11] At that time, it made no determination regarding any later periods of liability as it did not have any further medical certificates certifying her incapacity. Over subsequent years, Comcare determined that Ms Mitchell was entitled to payments of compensation under s 19 for various periods during which it found that she had been incapacitated as a result of her compensable injury.[12]

   [11] T documents; T31 at 118-121

   [12] T documents; T59 at 379-471

1. In a letter dated 27 May 2014, Comcare rejected Ms Mitchell’s claim for incapacity benefits for the period from 26 April 2007 to 16 June 2008.  It did so on the basis that it had insufficient evidence of Ms Mitchell’s incapacity to work as a result of her injury in that period.[13]  After Ms Mitchell sent it an email on 27 June 2014 requesting a review of that decision, Comcare affirmed it on 26 September 2014.[14]  It did so after a Senior Review Officer decided that Comcare did not have any contemporaneous evidence supporting a finding that Ms Mitchell was incapacitated for work in the period from 26 April 2007 to 16 June 2008 due to her compensable injury.  Ms Mitchell applied to the Tribunal for review of that decision, which is a reviewable decision.

   [13] T documents; T44 at 238-239

   [14] T documents; T55 at 325

Proceedings in the Tribunal

1. There have been several preliminary proceedings conducted by the Tribunal in this matter and quite extensive correspondence between Ms Mitchell and Comcare’s solicitors, some of which she has copied to the Tribunal, and between Ms Mitchell and the Tribunal.  I have not set out all of that correspondence nor set out what transpired at conferences[15] but have attempted to give a fair indication of the course of events in this matter.   

[15] I am mindful that words spoken or acts done at an alternative dispute resolution process, including conferences or conciliation conferences, are not admissible under s 34E of the AAT Act.

1. Comcare’s solicitors have issued a summonses to two of her treating medical practitioners and to produce, on 14 January 2015, all clinical records, history, letters of referral, copies of reports to referring general practitioners, x-rays, x-ray reports or other diagnostic reports and all other documents relating to examination and/or treatment of Ms Mitchell.  The Tribunal made an order for inspection on 14 January 2015.

1. After inspecting the documents on 14 January 2015 and before Comcare was permitted to examine them, Ms Mitchell objected, as she was entitled to do, to its solicitors’ inspecting any documents prior to 1 January 2007 and after 31 December 2008.  Ms Mitchell did so on the basis that documents outside those dates were not relevant.  A hearing was listed on 3 February 2015 to hear Ms Mitchell’s objection.  At her request when she cited personal reasons, the hearing was deferred to 13 February 2015.  On that day, another member of the Tribunal disallowed Ms Mitchell’s objection and permitted Comcare’s solicitors to inspect the documents produced under the three summonses.

1. A conference had been scheduled for 25 February 2015 but, at the request of Comcare and, with Ms Mitchell’s agreement, was deferred until 1 April 2015.  In the meantime, Comcare’s solicitors wrote to Dr Khoury, one of Ms Mitchell’s treating medical practitioners, seeking his response to various matters. 

1. Ms Mitchell provided further information on a number of issues in an email dated 30 March 2015.  One of those issues concerned the time that had elapsed before she made a claim for compensation for that period and her understanding that she did not have to lodge a further claim at that time.  Another concerned work she had undertaken up to July 2006 and a franchise she had subsequently purchased but subsequently lost.  She stated that she had not earned any money from the franchise.  Ms Mitchell concluded her email saying:

   “          Could you please consider accepting this claim now, so that I can use my focus and energy on returning to work.  It is in the long term benefits of all parties that I am able to be focused on obtaining sales and the best outcomes for my clients.  In my opinion taking this to more and more levels of litigation, is not and will not be good use of all parties time and resources.”

1. A further conference was scheduled for 27 April 2015.  In the meantime, Ms Mitchell sent Comcare’s solicitors notices of assessment for the 2007 and 2008 financial years.  At a further conference held on 10 June 2015, a Conference Registrar directed that the Respondent lodge and serve a Statement of Facts and Contentions by 6 July 2015.  A conciliation conference was scheduled for 20 July 2015.  Referring to her having received Comcare’s Statement of Facts and Contentions on 6 July 2015, Ms Mitchell asked that the conciliation conference be deferred.  Her request was declined by the Conference Registrar.

1. Ms Mitchell lodged copies of her assessments for the financial years ending 30 June 2007 and 2008.  She did so on 16 July 2015.  Both show her taxable income and the tax on that taxable income.  One shows an amount for tax offsets and other credits and both show the balance of the assessment. 

1. On 21 July 2015, the Tribunal sent to each of the parties a Hearing Certificate.  It required them to be completed and returned no later than ten days after 21 July 2015.   

1. On 24 July 2015, the Tribunal issued a summons to Ms Mitchell at Comcare’s request.  It required her to produce:

   “All records relating to income generated and taxation payable for the financial years ending 30 June 2007 and 30 June 2008 in the name of the applicant and businesses owned by or registered in the applicant’s name including tax returns, group certificates, notices of assessment, business activity statements and any other records submitted to the Australian Taxation Office in connection with the GST paid or claimed.”

The summons was returnable on 19 August 2015.

1. On the same day, Ms Mitchell returned the Hearing Certificate advising her availability for a hearing of her matter.  She asked that the hearing not be held until April 2016 due to the toll that the matter had been taken on his health, family and finances.  She was then undertaking approved training, she wrote, and her focus needed to be on growing her business and her family responsibilities to her two children.  In addition, Ms Mitchell said that she needed to obtain legal representation.

1. Comcare did not oppose Ms Mitchell’s request that the hearing be held in April 2016.  I agreed that the hearing could be deferred but required that she lodge her Hearing Certificate by 9 August 2015 advising availability for April and May 2016.

1. On 31 July 2015, Ms Mitchell wrote to the Tribunal stating that her return of the Hearing Certificate should be deferred until February 2016 for the same reasons that the hearing should be deferred.  She also asked that the return of the summons be delayed from 19 August 2015 to February 2016.  Ms Mitchell wrote that she was struggling to understand why Comcare was still choosing to proceed with the litigation and related costs in light of the four medical practitioners who had treated her.

1. On 31 July 2015, Ms Mitchell lodged an objection to the summons requiring her to produce documents on 19 August 2015.  She repeated points she had previously made and that I have touched on above.  As to the summonsed documents, Ms Mitchell said that she did not know what documents she had to produce, she should not have to produce her tax records and they are not relevant to the issue that must be decided in this case.  The issue that must be decided in this case is whether her compensable condition prevented her from returning to her pre-injury role, Ms Mitchell wrote.  She asked that the return date of the summons addressed to her be deferred to March 2016.

1. Ms Mitchell wrote an email to the Tribunal on 25 August 2015 stating that she was not sure if she would be able to attend as she was not well.  My Associate left a voice mail message for Ms Mitchell on 25 August 2015 advising her that the directions hearing would proceed on the following day.  Ms Mitchell repeated her request on the morning of 26 August 2015.  I conducted the directions hearing in Ms Mitchell’s absence on 26 August 2015 and with Comcare’s representative, Ms Nicolaou on the telephone.  I directed that, by 9 October 2015, Ms Mitchell to give to the Tribunal and to Comcare all of the:

   “…records relating to income generated and taxation payable for the financial years ending 30 June 2007 and 30 June 2008 in the name of the applicant and businesses owned by or registered in the applicant’s name including tax returns, group certificates, notices of assessment, business activity statements and any other records submitted to the Australian Taxation Office in connection with the GST paid or claimed.”

A document entitled “Copies of tax documents request” downloaded from the Australian Taxation Office’s (ATO’s) was attached to the hard copy of the direction sent to Ms Mitchell.  It was attached to assist her to obtain her taxation returns from the ATO if she did not have possession of copies of them. 

1. Ms Mitchell again sought to have the summons deferred but the documents were now the subject of my direction.  After hearing held on 16 December 2015, Ms Mitchell appeared on her own behalf and Ms Nicolaou on behalf of Comcare.  Both Ms Mitchell and Ms Nicoloau attended the hearing by telephone.  Ms Nicolaou did so from an interview room physically separate from the hearing room where I conducted the directions hearing.  She did so after she attended the Tribunal in person for unrelated reasons but Ms Mitchell objected to her being in the same room as me.  I directed that Ms Mitchell produced the documents described in the previous paragraph by 22 January 2016. 

MS MITCHELL’S CONDITIONAL WITHDRAWAL

1. In a letter dated 22 January 2016 and received by the Tribunal on 27 January 2016, Ms Mitchell began by stating that:

   “Unless the AAT are willing to revoke the decision of Comcare dated 29 September 2014, in my favour, please accept this letter as a withdrawal of my claim for reasons that are stated in this letter. …”

She set out the history of her requests to have the hearing deferred and summons addressed to her set aside.  She has not been able to be properly represented or have a chance to recover since she lodged her claim 2½ years ago.  In her view, the action has been vexatious in that the hearing was deferred but not the summons.  The claim had been lodged in April 2013 but not denied until April 2014. 

1. As for her application to the Tribunal, Ms Mitchell wrote, it had been lodged in October 2014.  There had been eight hearings and a mediation:

   “… despite … [her] being very clear that I was not going to provide tax records as medical evidence is used to determine liability and income is only used for remuneration purposes, which is always done after liability is determined, as is done with all other claims and it is because of that I do not believe that my taxation records should be on public record which they will be if this matter goes to final hearing, and it has been made very clear by Comcare, that they are not willing to settle this prior to a final hearing.  The taxation records have, in my opinion been used to be vexatious and to delay the process. …”

1. Ms Mitchell said that, if her letter were treated as a withdrawal, she intended to:

   “a        resubmit this claim after I have completed my RTW program,

   buse this letter as support for it being out of time,

   cthat it will have different dates,

   dbe completed with the assistance of Shine Lawyers and

   ewill also be included with other workers compensation claims of concern.

   fseek damages for negligence because of how this claim has been handled, discrimination and the effect that it has had on my health and family, over the last three years.”

Later in her letter, Ms Mitchell expanded on the sixth point.  She also advised that the dates she had claimed in her current claim were incorrect but would be corrected in her claim when she resubmitted it.

1. An applicant is entitled to withdraw an application at any time and for any reason. This is clear from s 42A(1A) of the AAT Act which provides:

   “A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.”[16]

   [16] If an application is lodged in the Tribunal’s Social Services and Child Support Division, a person may notify it orally of his or her withdrawal or discontinuance: AAT Act; s 42A(1AA).

1. When a notification of this sort is lodged with the Tribunal, “… the Tribunal is taken to have dismissed the application without proceeding to review the decision.”  This is the effect of s 42A(1B) and its effect is immediate.  Once an application has been dismissed, the Tribunal not only no longer proceeds to review the decision that is the subject of that application but has no power to do so.  Its powers are exhausted unless and until, in appropriate cases,[17] the applicant applies for the reinstatement of the application and the Tribunal reinstates it under s 42A(8) (having regard to ss 42A(8A) and (8B)) or s 42A(10).

   [17] The power given by ss 42A(8), (8A) and (8B) may only be exercised if the Tribunal has dismissed the application under s 42A(2) when a person fails to appear in person or by a representative at a directions hearing, alternative dispute resolution process or at the hearing of the proceeding.  Before the Tribunal may exercise power under s 42A(10), it must conclude that “it appears … that an application has been dismissed in error …”.

1. A conditional withdrawal does not lead to this outcome for it is not a withdrawal within the meaning of s 42A(1A). The effect of the condition that Ms Mitchell has imposed is that I review the decision and decide whether or not I decide in her favour by setting aside the reviewable decision and substituting a decision that she is entitled to compensation under s 19 of the SRC Act in respect of her compensable injury for the period from 26 April 2007 to 16 June 2008 due to her compensable injury. If I decide that I do not decide the matter in her favour, her withdrawal becomes unconditional. Ms Mitchell contemplates that I will undertake the review on the material that she has already submitted and without a hearing. I will now explain why I do not have power to review the decision at this time and in the manner Ms Mitchell contemplates.

1. The Tribunal has three ways in which it may come to a decision on the substantive merits of an application.  One does not require a hearing for it is a decision made by the Tribunal after the parties reach an agreement on its terms.  The Tribunal must be satisfied that it has power to make a decision consistent with the terms of that agreement.  This is not the case here.  Although Ms Mitchell is of the view that Comcare should agree to change its decision, it has not done so.  Therefore, apart from any technical steps that must be undertaken under s 42C of the AAT Act, I do not have power to make a decision on that basis.

1. Two other ways in which the Tribunal may come to a decision only come about after the Tribunal has considered the matter and come to its own decision.  One way is by considering the matter on the papers under s 34J of the AAT Act and the other after holding a hearing.  I have not held a hearing as Ms Mitchell does not want to take that path.  That leaves s 34J.  Section 34J provides that:

   “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.”

1. There are two reasons why s 34J does not assist me in doing what Ms Mitchell asks.  The first is that Comcare has not given its consent to the matter’s being resolved on the papers.  It has not been expressly asked for its consent but its wish to question at least some of Ms Mitchell’s witnesses leads to that conclusion.  That means that s 34J(b) has not been satisfied.  That means that I do not have power to review Comcare’s decision without holding a hearing for both paragraphs of s 34J must be satisfied before I may do so.

1. Despite that, I will explain why s 34J(a) has not been met either.  I am not satisfied that the issues for determination can adequately be determined in the absence of the parties.  Ms Mitchell points to the reports of the medical practitioners who support her view that she was incapacitated from her compensable injury in the period from 26 April 2007 to 16 June 2008.  Even if I were to accept that she is correct in her view, I do not accept that I could make a decision in her favour on the material that I have. 

1. In saying that, I realise that the Senior Review Officer based her decision to affirm Comcare’s decision refusing Ms Mitchell compensation under s 19 of the SRC Act on the basis that it did not have any contemporaneous evidence supporting a finding that Ms Mitchell was incapacitated for work in the period from 26 April 2007 to 16 June 2008 due to her compensable injury. The basis on which she did so is one thing but the decision that Comcare made was to refuse to pay Ms Mitchell under s 19. That is the decision that is under review and it is the decision that is the subject of her application to the Tribunal. That raises for review all of the matters that are relevant in deciding entitlement under s 19.

1. In order to be entitled to compensation under s 19, which I have set out above, I must not only be satisfied that she is incapacitated for work as a result of her compensable injury but that she is entitled to be paid an amount, or amounts, of weekly compensation under s 19. Ms Mitchell would have me make a decision remitting issues relating to Comcare for calculation but I would not be in a position to do that. I would not be in a position to do that because, on the material that I have, I do not have a basis on which I can (or Comcare could on remittal) make the findings of fact that would enable me (or it on remittal) to determine the factual issues necessary to apply the formula set out in s 19(2).

1. Taking Ms Mitchell’s maximum rate compensation week, for example, I do not have an evidentiary basis on which I (or Comcare if remitted) may determine if a week is a maximum rate compensation week.  A week of that sort is a week during which her incapacity prevented her from working her normal weekly hours because she was unable to work or unable to work at the level at which she worked before her injury.  In order to determine the “AE” in the formula, I must also be satisfied of the amount Ms Mitchell was able to earn in suitable employment and of the amount that she did earn from any employment (including self-employment) that she did undertake during any week in the period between 26 April 2007 to 16 June 2008.  

1. In saying that, I am aware that Ms Mitchell has lodged notices of assessment from the Commissioner for Taxation for each of the 2007 and 2008 years of income.  They are based on her taxable income.  In general terms, and subject to qualifications that would not seem to be relevant in this case, an individual’s taxable income is determined by adding up all of her assessable income in each year, adding up her deductions for the same period and deducting those deductions from her assessable income.[18]  “Assessable income” consists of ordinary income and statutory income unless it is exempt income.[19]  “Ordinary income” includes income according to ordinary concepts.[20]  If a person is an Australian resident, his or her assessable income includes the ordinary income derived directly or indirectly from all sources, whether inside or outside Australia.[21] 

[18] Income Tax Assessment Act 1997 (ITAA97); s 5-15(1)

[19] ITAA97; s 6-1

[20] ITAA97; s 6-5(1)

[21] ITAA97; s 6-5(2)

1. Section 19 of the SRC Act is not concerned with a person’s taxable income but with the amount that he or she is able to earn in suitable employment. That amount would be an amount included in her ordinary income for taxation purposes. Ms Mitchell’s taxation assessments do not reveal either her assessable income or of the sources of the income making up her assessable income. Her income tax returns would do so and are a relevant element in determining the amount that Ms Mitchell has earned from employment between 26 April 2007 to 16 June 2008 she has not produced them. That is a relevant consideration in determining the amount of her “AE” for the purposes of s 19(2). It may also be relevant in considering the amount per week that she was able to earn in suitable employment in that period. That is the other determination that must be made in assessing her “AE” for the purposes of s 19(2).

1. Putting aside my view of the evidentiary material, it is clear from the material that has been lodged that Comcare does not view the medical evidence from Ms Mitchell’s medical practitioners in the same way she does.  It needs to explore that evidence against the background of the first issue for determination i.e. whether Ms Mitchell was incapacitated for work as a result of her compensable injury in the relevant period.  As decisions made under the SRC Act are allocated to the Tribunal’s General Division, I am obliged to give Comcare:

   “… a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.”[22]

The obligation imposed on me by s 39(1) of the AAT Act extends not only to the issue that Ms Mitchell wants to explore but to all issues that are relevant in reviewing the decision.

[22] AAT Act; s 39(1)

1. It follows that Ms Mitchell’s conditional withdrawal is ineffective and that I have no power to undertake a review of the decision at this stage of the proceedings.

   COMCARE’S REQUEST THAT APPLICATION BE DISMISSED UNDER S 42A(5)

1. On 9 February 2016, Comcare asked that Ms Mitchell’s application be dismissed under s 42A(5) of the AAT Act.  That section provides:

   “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 in relation to the application;

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

1. I have outlined the history of the proceedings.  Accommodation was made for Ms Mitchell’s wish to have the hearing in April 2016 but her wish to defer all preliminary procedures until February or March 2016 could not be accommodated.  If a hearing was to proceed in April 2016, both parties had to be given an opportunity to gather their evidentiary material well before that date.  As it was entitled to do, Comcare used the summons procedure to obtain production of documents.  Ms Mitchell did not comply.  I used the directions power to require Ms Mitchell to produce certain financial records.  In my case, I extended the time by which Ms Mitchell could comply from 9 October 2015 to 22 January 2016 and only three months before an April hearing.  That is not an inordinate amount of time for Comcare to consider its position, make further enquiries and produce any relevant material and for me to give her an opportunity to respond with any additional material if she wished to lodge it.   Ms Mitchell failed to comply with the direction by either date and has now made clear that she does not intend to.  I have explained why the financial material is relevant to the review of the decision.  Ms Mitchell has had five months to comply with my direction to produce it and over a month before that to comply with the summons requiring her to produce the same material.  I am satisfied that she has had a reasonable time within which to produce it and so comply with my direction.

1. Ms Mitchell’s conditional withdrawal is further indication that she does not wish to proceed with the application.  That, together with her failure to comply with the summons or with my direction lead me to conclude that she has failed to proceed with her application within a reasonable time. 

1. That means that I have power under either or both of s 42A(5)(a) and (b) to dismiss Ms Mitchell’s application. It is a discretionary decision but it is a discretion that must be exercised within the confines of the purpose for which the power to make the decision was given. In general terms, s 25(1) of the AAT Act provides that another enactment may provide that applications may be made to the Tribunal for review of decisions made under it. Unless varied by that other enactment, the AAT Act provides the framework within which the Tribunal will review the decision. By enacting s 2A, Parliament requires the Tribunal to:

   “… 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 process of the Tribunal.”

1. Provisions such as s 2A have been described as exhortatory[23] intended to be facultative and not restrictive.[24]  They must be for they refer to the mechanism of review that is provided.  The way in which that mechanism unfolds may be the same in many cases of the same type but it must remain flexible enough to deal with the variations that arise from case to case.  To do so is consistent with s 2A.  In this case, allowances have been made for Ms Mitchell’s reasons for failing to comply with a summons and with my directions.  Her conditional withdrawal is indicative of her wish not to proceed further with the matter.  Therefore, I have decided that it is appropriate to dismiss her application under s 42A(5) of the AAT Act.

   [23] Sun v Minister for Immigration and Ethnic Affairs [1997] FCA 324 per Lindgren J

   [24] Minister for Immigration and Multicultural Affairs v Eshutu (1999) 197 CLR 611; 162 ALR 577 at 628; 588 per Gleeson CJ and McHugh J and 659; 613 per Hayne J and see also similar views expressed by Gaudron and Kirby JJ at 635; 592-594

I certify that the fifty preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed:           ………..............[sgd].........................................

Associate

Date of Hearing on the Papers          1 March 2016

Date of Decision  11 March 2016

ApplicantSelf represented

RespondentMs Nicky Nicolaou, Australian Government Solicitor