Noronha and Comcare (Compensation)

[2022] AATA 478

Noronha and Comcare (Compensation) [2022] AATA 478 (11 March 2022)

Division:GENERAL DIVISION

File Number(s):      2019/7653

Re:Ovina NORONHA

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:11 March 2022

Place:Sydney

The correct or preferable decision is to dismiss the application pursuant to s 42A(5) of the AAT Act.

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

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – interlocutory application for dismissal under s 42A(5) – where the matter has failed to progress – workers compensation – consistent failure to comply with s 57 notice under the SRC Act – where Applicant contends matter should be stood over until particular document can be produced – application for dismissal is granted.

LEGISLATION

Administrative Appeals Tribunal Act 1975 s 2, 33, 42A

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 57

CASES

Charara v Commissioner of Taxation [2016] FCA 451

SECONDARY MATERIALS

Administrative Appeals Tribunal ‘Guide to the Workers’ Compensation Jurisdiction’ (July 2015)

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

11 March 2022

1. The Applicant was born in 1966. From July 2001 she was employed by the Department of Veterans’ Affair (‘DVA’).

2. On 14 January 2004, the Applicant lodged a Workers’ Compensation Claim Form for ‘Anxiety’. The Applicant described the cause of the injury as harassment in the workplace due to a number of specific issues. It was stated that the injury began in January 2001. This claim was allocated the reference number 880389/1.

3. Comcare declined liability to pay compensation under section 14 at first instance however accepted liability for ‘anxiety state’ in a reconsideration of decision dated 15 July 2004.

4. Following a lengthy period of incapacity, the Applicant returned to work in March 2009.

5. On 9 February 2011, the Applicant submitted a further claim for workers’ compensation in respect of ‘acute stress disorder and panick (sic) attacks’ suffered at work on 15 September 2009. This claim was allocated the reference number 880389/2.

6. In the determination dated 2 June 2011, Comcare accepted liability for ‘acute reactions to stress’ under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’).

7. DVA requested a reconsideration of the determination which accepted liability under section 14. In the reconsideration dated 3 August 2011, Comcare’s review officer affirmed the determination and accepted liability to pay compensation under section 14 of the SRC Act in respect of ‘acute stress reactions’.

8. In a determination dated 21 May 2019, Comcare declined present liability for medical expenses and incapacity payments under sections 16 and 19 of the SRC Act. The delegate relied on Dr Chow’s opinion that the Applicant’s employment no longer contributed to her condition, to a significant degree, and that her underlying personality disorder would have caused her condition in the absence of work.

9. The Applicant requested a reconsideration and, in the reviewable decision dated 11 September 2019, Comcare’s review officer affirmed the determination to decline present liability under sections 16 and 19 of the SRC Act.

10. On 20 November 2019, the Applicant submitted an application for review of decision to the Tribunal.

11. In the proceedings, Comcare has maintained the intention to have the Applicant medically examined by an independent psychiatrist. This is due to the issue before the Tribunal being whether Comcare is liable at present to pay compensation for the Applicant’s ‘acute stress reactions’. Relevant to this issue is the appropriate diagnosis of conditions currently suffered by the Applicant, as well as their cause. A psychiatric examiner in these proceedings would have the unique benefit of having access to the clinical and employment records obtained under summons, which would provide a complete contemporaneous record of events and symptoms. There is no doubt the Tribunal would be assisted by the report.

12. The Applicant has refused to attend a medical examination since 27 February 2020, when she objected to an examination arranged by the Respondent with Dr Christopher Cocks, consultant forensic psychiatrist, for 19 May 2020. The objection was considered, and not upheld by Constance DP following an interlocutory hearing on 12 March 2020, a directions hearing on 29 April 2020 and subsequent correspondence.

13. On 29 September 2020, email correspondence from the Tribunal stated as follows:

    ‘The Deputy President has also determined that Ms Noronha should attend an appointment with Dr Cocks. The reason for this is that the Tribunal is required to decide the application on the evidence available at the time of the hearing, as oppose to when the reviewable decision was made. As such, an up to date report of Dr Cocks would be of assistance to the Tribunal.’

14. Following that confirmation from the Tribunal, a further examination was arranged with Dr Cocks for 1 December 2020, which the Applicant did not attend.

15. On 4 June 2021, Comcare issued a notice under s57(1) of the SRC Act directing the Applicant to attend a medical examination with Dr Antonella Ventura, consultant psychiatrist, on 1 July 2021. On 28 June 2021, Comcare issued an updated s57(1) notice which provided for the examination to take place via Telehealth, due to the change in restrictions in NSW at that time.

16. On 18 June 2021, the Applicant lodged an objection to the medical examination scheduled with Dr Ventura on 1 July 2021.

17. On 30 June 2021, the Tribunal heard the Applicant’s objection to the medical examination. The Tribunal considered whether the s57 notice was validly issued and whether the Applicant had a ‘reasonable excuse’ for her refusal to attend. At the conclusion of the hearing, the Tribunal informed the Applicant that it had decided that the s57 notice was validly given, her objection to the assessment was not upheld and that the matters she raised did not constitute a ‘reasonable excuse’ not to attend the examination. The Tribunal published written reasons for the decision on 23 July 2021.

18. The Applicant did not attend the examination on 1 July 2021.

19. On 5 July 2021, Comcare’s representative emailed a letter to the Applicant dated 1 July 2021. Comcare requested that the Applicant provide any reason for not attending the examination by 8 July 2021, noting that the Applicant’s right to compensation, including to continue AAT proceedings, may be suspended.

20. Comcare did not receive any response. On 12 July 2021, Comcare’s representative contacted the Applicant again and informed her that Comcare would allow until 19 July 2021 for her to provide her response to the letter dated 1 July 2021. Again, no response was received.

21. On 22 July 2021, Comcare issued a notice of suspension of the Applicant’s claim under s 57(2) of the SRC Act. The notice was provided by email to the Applicant and the Tribunal on the same day.

22. On 15 September 2021, the Applicant wrote to Comcare directly by email seeking to claim compensation in relation to her 2003 injury, the subject of claim 880389/1. The Applicant asserted that the correspondence had originally been submitted to Comcare in October 2019. Comcare disputed this saying that there was no record of any such correspondence.

23. On 16 September 2021, further email correspondence occurred between the Applicant and Comcare. Comcare referred to the s57 suspension and encouraged the Applicant to contact its representative in order to reschedule the medical examination. The Applicant reiterated the reasons already advanced to the Tribunal and further copies of documents already provided, for refusing to attend the Telehealth examination. She additionally stated that there was a lockdown as at the date of the examination and she stated ‘Also, a fracture and recovery’.

24. On 23 November 2021, Comcare determined that the Applicant’s ‘request for reinstatement of weekly payments and medical expenses from 21 May 2019 has been declined’.

25. On 25 November 2021, Comcare’s representative contacted the Tribunal seeking dismissal of the application pursuant to s 42A(5) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) on the basis that the Applicant has failed to proceed with the application within a reasonable time.

26. A further interlocutory hearing was held on 4 March 2022. There was no relevant new material before the Tribunal. Rather, the Applicant continued to press for a copy of a report from Marilyn Roche from MR Consulting which was originally created on 29 September 2003, and which she has been told on numerous occasions the Respondent does not have in its possession despite an extensive search. The Applicant further stated that a copy of the report had been filed with the Tribunal in previous proceedings and that the Tribunal should produce it. The Applicant also filed a document which she called a ‘Notice of Motion’ which purported to be a notice requiring the proceedings to be stayed until the Roche report could be located and produced.

27. The arguments put forward by the Respondent were essentially the same as in previous hearings, namely that the Applicant had consistently failed to comply with the notice issued under s 57(2) of the SRC Act to attend an independent medical assessment.

    LEGAL FRAMEWORK

28. Section 42A(5) of the AAT Act provides as follows:

    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

    (b)to comply with a direction by the Tribunal in relation to the application;

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

29. Part 6.5 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction (July 2015) provides the following process:

    6.5 Suspension of proceedings because of a refusal or failure to undergo a medical examination

    If you have made a claim for compensation, you can be required to undergo a medical examination. If you refuse or fail, without reasonable excuse, to undergo a medical examination or in any way obstruct an examination, your rights to compensation under the Act, and to institute or continue any proceedings in relation to compensation, are suspended until the examination takes place: see section 57(2) of the Safety, Rehabilitation and Compensation Act 1988 and section 66(2) of the Seafarers Rehabilitation and Compensation Act 1992. If the decision-maker tells us that it thinks proceedings are suspended on this basis, we will adopt the following procedure.

    ·    We will write to you and ask you whether you think the proceedings are suspended. If you do not agree, we will hold a hearing to determine whether or not the proceedings are suspended.

    ·    If we determine the proceedings are suspended, we will direct that no further step may be taken in the application by you without our permission.

    ·    If we are not advised within a period of 3 months that you have undergone the examination, we will consider whether or not to dismiss the application under section 42A(5) of the AAT Act.

30. Section 2A of the AAT Act also sets out the objectives of the Tribunal as follows:

    In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

    (c)is accessible; and

    (d)is fair, just, economical, informal and quick; and

    (e)is proportionate to the importance and complexity of the matter; and

    (f)promotes public trust and confidence in the decision-making of the Tribunal.

31. Section 33 of the AAT Act relevantly provides that:

    (1AB) A party to a proceeding before the Tribunal, and any person representing such

    a party, must use his or her best endeavours to assist the Tribunal to fulfil the

    objective in section 2A.

    ISSUE

32. The issue for determination is whether the Tribunal should exercise its discretion to dismiss the application pursuant to s 42A(5) of the AAT Act.

    DISCUSSION

33. This matter has a long history and has not progressed for some time. Several months have passed since the Applicant was notified of the suspension of her claim with Comcare on 22 July 2021, and it has now been over two years since her application to the Tribunal was lodged on 20 November 2019.

34. The issue before the Tribunal in relation to the Applicant’s substantive application is whether Comcare is liable at present to pay compensation for the Applicant’s ‘acute stress reactions’. In light of this, Comcare has maintained the intention throughout the proceedings to have the Applicant medically examined by an independent psychiatrist.

35. The current breakdown in the progress of the matter has clearly come about due to the refusal of the Applicant to attend a number of medical examinations as required by Comcare to assess her claim. Notably, the Applicant refused to attend a medical examination with consultant forensic psychiatrist, Dr Christopher Cocks, on 19 May 2020. The Applicant’s objection was considered and not upheld by the Tribunal. A further appointment with Dr Cocks was arranged for 1 December 2020, which the Applicant also did not attend. Most recently on 4 June 2021, Comcare issued a notice under s 57(1) of the SRC Act directing the Applicant to attend a medical examination with Dr Antonella Ventura, consultant psychiatrist, on 1 July 2021. The Applicant objected and did not attend the examination on 1 July 2021, despite the Tribunal indicating by way of an oral decision at an interlocutory hearing on 30 June 2021 that Comcare’s notice had been validly issued and that the Applicant’s objection was not upheld.

36. Since then, the matter has failed to progress and Comcare have suspended the Applicant’s claim pursuant to s 57(2) of the SRC Act.

37. At the most recent interlocutory hearing before the Tribunal on 4 March 2022, the Applicant continued to refuse to attend any further medical appointment and argued that Comcare should be required to produce the Roche report. The Applicant had been previously advised on various occasions that Comcare, despite an extensive search for the report, did not have it. The Applicant also stated that the report had been filed with the Tribunal in previous proceedings, however the Tribunal also does not appear to have it. In any event, production of the 2003 report is not relevant to the current application.

38. Comcare has been put to considerable expense in arranging medical appointments which the Applicant has refused to attend, and also in attempting to progress the matter before the Tribunal. It has been made very clear to the Applicant by both the Tribunal and Comcare that she must attend medical appointments as directed by Comcare. Her continued refusal to attend means that Comcare is unable to close its file and must keep the matter extant, with consequent prejudice, administrative cost and inconvenience. I am satisfied that Comcare has made every effort to accommodate the Applicant’s concerns, including arranging for remote medical consultation to take place in light of the Covid-19 pandemic.

39. The matter has been before the Tribunal for a long time and it is unable to progress before the Tribunal unless the Applicant complies with the direction from Comcare as required by s 57(2) of the SRC Act. It is clear from the history of the matter and the evidence before the Tribunal that this is not going to happen and there is no other way forward. The Roche report remains a distraction.

40. In Charara v Commissioner of Taxation [2016] FCA 451, Wigney J set out two principles relevant to the exercise of the discretion under s 42A(5) of the AAT Act as follows:

    [79] The discretion must only be exercised sparingly and as a matter of “last resort” (emphasis added): Guse v Comcare (1997) 49 ALD 288 at 291. That is because it involves denying an Applicant a hearing of the merits of the application. Because dismissal under s 42A(5) is a matter of last resort, the Tribunal must consider whether dismissal is the proper remedy, or whether it would be more appropriate to take some other course, such as adjourning the proceeding or making some other order to secure compliance: Guse v Comcare at 291. Again, a failure to do so would most likely constitute a misapplication of s 42A(5).

    [80] In exercising the discretion, the Tribunal must also afford the Applicant procedural fairness (emphasis added): Guse v Comcare at 291. Procedural fairness would ordinarily require the Tribunal to give the Applicant the opportunity to make submissions as to why the discretion should not be exercised. That would include giving the Applicant an opportunity to put forward submissions concerning whether there had been a failure to comply with a direction and, if so, whether a reasonable time had elapsed since that failure. It would also ordinarily extend to giving the Applicant an opportunity to explain or justify any failure, or to advance any reasons why, despite the failure, the application should not be dismissed. Depending on the particular circumstances, it might also extend to giving the Applicant a further opportunity to comply or to remedy the default.

41. The Applicant has been given every opportunity over a long period of time to move the matter forward but despite the urging of both Comcare and the Tribunal has failed to do so. Her fixation on the Roche report and Comcare’s alleged responsibility to produce it appears to have created a complete roadblock and the Tribunal has run out of options.

42. A period of approximately six months passed between the interlocutory hearing on 30 June 2021, where the Applicant was told she must attend the required medical appointment if the matter were to be proceed before the Tribunal, before the Respondent filed this application for dismissal. The Applicant was given approximately a further three months to allow her to make any further representations to the Tribunal before the matter was dismissed. She failed to attend the medical appointment and did not put forward any relevant argument as to why the matter should not be dismissed.

43. Accordingly, and bearing in mind the principles enunciated by Wigney J, it is my opinion that the proper course is to dismiss the proceedings under s 42A(5) of the AAT Act.

    DECISION

44. The correct or preferable decision is to dismiss the application pursuant to s 42A(5) of the AAT Act.

I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President.

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

Associate

Dated: 11 March 2022

Date(s) of hearing:	4 March 2022
Applicant:	Self-represented
Solicitors for the Respondent:	Ms E. Baggett, Moray and Agnew Solicitors