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
The Applicant was born in 1966. From July 2001 she was employed by the Department of Veterans’ Affair (‘DVA’).
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.
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.
Following a lengthy period of incapacity, the Applicant returned to work in March 2009.
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.
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’).
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’.
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.
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…
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CaseChat Overview and Summary
The primary legal issue before the Tribunal was whether the proceedings should be dismissed under section 42A(5) of the *Administrative Appeals Tribunal Act 1975* (Cth) due to the matter's lack of progress and the applicant's failure to comply with the SRC Act notice. The Tribunal was required to determine if the applicant's request to stand over the proceedings was a sufficient reason to avoid dismissal.
In reaching its decision, the Tribunal considered the principles articulated by Wigney J regarding the progression of matters before the Tribunal. The Tribunal found that the consistent failure to comply with the section 57 notice, coupled with the overall lack of progress in the proceedings, warranted dismissal. The Tribunal concluded that the proper course of action was to dismiss the application pursuant to section 42A(5) of the AAT Act.
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Background
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Evidence
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Decision
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Ratio Decidendi
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