Nikolov and Comcare (Compensation)

[2019] AATA 5638

Nikolov and Comcare (Compensation) [2019] AATA 5638 (3 December 2019)

Division:GENERAL DIVISION

File Number:          2016/3154

Re:Jonian Nikolov  

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:R Cameron, Senior Member  

Date of decision:                   3 December 2019

Date of written reasons:        7 January 2020

Place:Melbourne

The Tribunal has reinstated the application.

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

R Cameron, Senior Member 

Catchwords

PRACTICE AND PROCEDURE – workers’ compensation – psychological injury depression – respondent neither favoured nor opposed application – no grounds of opposition – serious mental health conditions – application reinstated

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

REASONS FOR DECISION

R Cameron, Senior Member

7 January 2020

INTRODUCTION

1. On 13 April 2016, a Review Officer of the Respondent affirmed a decision previously made on 15 February 2016 denying a claim made by the Applicant (“the decision”) under section 14 of the Safety, Rehabilitation and Compensation Act 1988.

2. On 10 June 2016, the Applicant applied to the Tribunal for a review of the decision      (“the application”).

3. The claim for a diagnosed condition of “psychological injury depression”, which the Applicant alleges arose as a result of “being subjected to sustained and unreasonable systematic psychological bullying” is the subject matter of the application. The condition apparently arose from his time as an employee of the Commonwealth Scientific and Industrial Research Organisation (CSIRO) for whom he worked from June 1998 until he left in December 2016. The Applicant was employed as a Research Projects CSOF     Level 5. He is a mechanical/materials engineer and holds a doctorate.

4. At a directions hearing on 3 September 2019, the Tribunal made orders pursuant to section 42A (5) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) dismissing the application. Subsequently, following a request made by the Applicant, written reasons were provided by the Tribunal.

5. The Applicant then applied for reinstatement on 18 November 2019. An interlocutory hearing was held on 3 December 2019. The Tribunal in favour of the Applicant ordered that the application be reinstated. On 11 December 2019, the Respondent as entitled under the relevant provisions of the AAT Act, sought written reasons for the reinstatement. These reasons have been prepared pursuant to such request.

6. As has been the case for some time, the Applicant appeared by telephone for himself at the hearing of the reinstatement application on 3 December 2019. Mr Wong and            Ms Proimos appeared by telephone at the reinstatement hearing on behalf of the Respondent.

7. Prior to the hearing on 3 December 2019, the Applicant had submitted what he described as a “letter” to the Tribunal dated 15 November 2019 (“the letter”). The contents of the letter are referred to in their entirety for their full force and effect. No objection was made by the Respondent as to the contents of the letter being read and considered by the Tribunal.

8. In the letter the Applicant, in support of the application for reinstatement, stated that he had been in a Community Care Unit (“CCU”) for most of 2019 under full-time medical observation for his mental health conditions. He contended that such mental health conditions originated as a direct result of the actions of his former employer the CSRIO (the Tribunal does not make a finding on this fact one way or the other). He stated as a consequence of his full-time stay in the CCU he had found it very difficult to conduct the case himself. Furthermore, he observed that he had limited financial means available to him and had to date been unable to secure legal representation.

9. It was additionally referred to in the letter that he had made three suicide attempts. Apart from him stating that his second suicide attempt occurred in June 2016 the letter does not identify the dates that the other attempts were made. Obviously, it is open to the Tribunal to infer that the third attempt must have occurred between June 2016 and the date that the letter was written. At the very least this would indicate that his mental health conditions including suicidal ideation have been extremely problematic for a long time. It was his contention that the three suicide attempts made by him were a direct result of the workplace issues that he had particularised earlier in the letter. The Applicant asserts that the issues concerned developed over many years. It will be recalled from earlier in these reasons that he was employed by the CSIRO for approximately 18.5 years. These issues, he described, led to his mental collapse which then caused those suicide attempts. The Tribunal is prepared to accept that the Applicant has made such suicide attempts and suffered from serious and debilitating long-term mental health issues.

10. Other portions of the letter made several allegations against the conduct of both the CSIRO and/or Comcare. It is not, and cannot, be the function of the Tribunal in the course of an interlocutory application such as this to adjudicate on the merits of such allegations.

11. Mr Wong who appeared on behalf of the Respondent during the hearing of this application, commenced by informing the Tribunal that Comcare was neither in favour of nor opposed the reinstatement application. The only other matter that he raised was that on the face of the decision, he observed that there did not appear to be any error that would invoke the power of the Tribunal under section 42A (10) of the AAT Act. No other argument was presented to the Tribunal contending that the reinstatement application could not be granted. Given that the Respondent is a model litigant, if there was any other contention one would have expected it to have been raised.

12. There are several reasons why the Tribunal will grant the reinstatement sought by the Applicant. The absence of any opposition to the application by the Respondent who was noted earlier is a model litigant, is considered as a factor which weighs in favour of granting the application. Other than to refer to section 42A (10) of the AAT Act as noted earlier, no ground of opposition was forthcoming. Had there been other grounds open to the Respondent, one would have expected them to have been submitted and fully canvassed at the hearing.

13. The contents of the letter were not disputed or challenged in any way by the Respondent. Whilst it is not the role of the Tribunal in an application such as this to engage upon a fact-finding excursion or as some observers occasionally refer to it a “mini trial”, it would have been open to the Respondent, as a model litigant, to have taken issue with the contents of it for the purposes of the application if it was considered that any aspect of it was inaccurate or otherwise misleading.

14. The other reason why the Tribunal favours granting the application is the fact that from the contents of the letter the Applicant has suffered from some extreme mental health conditions for approximately ten years, which have obviously led to his difficulty in prosecuting this case. It is considered that some level of sympathy must be extended to him in light of these conditions. These conditions were surprisingly, not relied upon by the Applicant in the way that he put them on this occasion, previously in opposing the dismissal application. This would seem to be a reflection of the serious mental health issues from which the Applicant suffers. It is indeed unfortunate that he is acting for himself which has probably led to the predicament he found himself in upon which the Tribunal relied in deciding to dismiss the application.

15. Therefore, the Tribunal finds that to an extent the geometry concerning this matter has changed and this is further justification for granting the application as sought. To dismiss the application is a drastic result to be inflicted on someone who it appears, overwhelmingly from the material before the Tribunal, suffers from serious mental health problems. It should not be inflicted lightly and it is submitted that the Applicant should have a second chance given the special circumstances that he has demonstrated, which were not challenged by the Respondent.

    DECISION

16. By reason of the foregoing matters the application has been reinstated.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the written reasons for the decision herein of R Cameron, Senior Member.

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

Associate

Dated: 7 January 2020

Date of interlocutory hearing:	3 December 2019
Applicant:	By telephone
Solicitors for the Respondent:	Mr Chris Wong and Ms Jenny Proimos