Phuc Le and Comcare

[2014] AATA 291

[2014] AATA 291 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/5830
Re	Phuc Le
APPLICANT
And	Comcare
RESPONDENT

WRITTEN REASONS FOR INTERLOCUTORY DECISION

Tribunal

RM Creyke, Senior Member

Date of decision

Date of written reasons

4 April 2014

13 May 2014  

Place

Canberra

The Tribunal has jurisdiction to review all the issues involved in the reviewable decision.

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

RM Creyke, Senior Member

Catchwords

JURISDICTION- Tribunal’s function as a merit review tribunal - power to review whole of reviewable decision including all issues involved in reviewable decision

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) sections 25(4), 25(4A), 43(1) and 61.

Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 5A and 5B.

Cases

Shi v Migration Agents Review Authority (2008) 248 ALR 390

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

s

REASONS FOR INTERLOCUTORY DECISION

RM Creyke, Senior Member

1. Mr Phuc Le has an application before the Tribunal for review of a decision that Comcare has no liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) to compensate him for a condition described as an ‘anxiety state’.

2. Mr Le, and his wife, Ms Le, attended a directions hearing in person at the Tribunal on Thursday 3 April 2014 to discuss his request to have all summons material relating to the matter returned to providers or to be destroyed; and for an extension of time to respond to a direction of 13 February 2014.

3. At that hearing Mr Le submitted that, in accordance with his indication on the form applying to the Tribunal for review, the Tribunal only had jurisdiction to consider those aspects of the decision which were unfavourable to him.

4. The Tribunal made a finding that Mr Le could not limit its jurisdiction by requiring it to ignore elements of the reviewable decision. Thereupon Mr Le indicated his intention to have that ruling tested by the Federal Court. 

5. As a consequence, issues concerning the summons material, whether Mr Le should attend a medical appointment, and the extension of time request, were put in abeyance by the Tribunal until the jurisdictional issue was decided.

6. On 4 April 2014, the Tribunal issued a decision that it had jurisdiction to consider all aspects of the matter before it. On 1 May 2014, Mr Le submitted a request for the reasons of the Tribunal for that decision.

   Background

7. On 13 November 2013 Mr Le lodged an application for review of a decision with the Tribunal. Mr Le is not legally represented, but in his application he nominated his wife, Ms Teresa Le, as his representative. A conference was held in the matter on 13 February 2014. 

8. At that conference Mr Le was informed that the respondent would be summonsing his medical records.  The conference registrar also indicated to Mr Le that as he was not legally represented, it was common practice, in order to assist unrepresented applicants, to ask the respondent to be the first party to produce a statement of facts, issues and contentions and if necessary, a separate statement of issues.  

9. On 13 February 2014 Mr Le emailed the Tribunal at 8.55pm objecting to the summons of ‘all’ his medical records on privacy grounds.  However, in that email he said ‘I am willing to provide ALL my medical records within a reasonable period before my date of injury and after. Specific dates of which can be established by way of further discussion and negotiation’ (original emphasis). He maintained his objection to the summonsing of ‘all’ his medical records.

10. On 17 February 2014, the respondent advised Mr Le of its statement of issues and for Mr Le to indicate any aspect of the statement of issues to which he did not agree and his understanding of the extent of the Tribunal’s jurisdiction in the matter. The respondent’s statement of issues were:

    2.1What is the appropriate diagnosis of the claimed injury?

    2.2What is the appropriate deemed date of injury for the claimed injury?

    2.3Whether the Applicant’s employment contributed to the claimed injury to a significant degree?

    2.4Whether the Applicant suffered the claimed injury as a result of reasonable administrative action taken in a reasonable manner as set out in s 5A of the Act, meaning that liability for his claim is excluded, as his claimed injury does not meet the definition of ‘injury’ in the Act

    2.5Whether the Respondent is liable to pay compensation, pursuant to s 14 of the Act in respect of the claimed injury?

11. On 21 February 2014, Mr Le emailed the Tribunal and said: ‘I wish to advise you that I would like to retract this objection to obtain my medical records. Therefore AAT can summon my medical records as per conference discussion on Thursday 13 February 2014’. 

12. On 21 February 2014, Mr Le requested the Tribunal to summon two officers in his employing agency to give evidence at any hearing in his matter.  The Tribunal advised him that it was normally the responsibility of each party to summon any witnesses they wished to attend, and he was given information about how to do this.

13. On 21 February 2014, Mr Le also requested the Tribunal to request the agency to produce ‘a witness statement… in regards to the Applicant’s ‘Second Submission ‘made to Comcare dated 27^th May 2013’. Mr Le was advised on 24 February 2014 that the Tribunal’s powers under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT ACT) sections 38 and 40 did not authorise it to require an agency to produce a document not already in existence.

14. The respondent arranged for Mr Le to attend a consultation on 23 May 2014 with a psychiatrist and on 11 March 2014 the Tribunal issued a direction that the report of the psychiatrist be provided to the Tribunal on or before 27 June 2014.

15. On 13 March 2014, Mr Le notified the Tribunal that not only did he object to having ‘all his Medical Files summoned’ but he also objected ‘to being directed to attend a Medical Appointment with a Psychiatrist by the AAT’.

16. On 13 March 2014, Mr Le provided his ‘Statement of Issues’.  His statement of issues recited:

    ·Whether the Applicant suffered the claimed injury as a result of reasonable administrative action taken in a reasonable manner as set out in s5A(2) of the SRC Act, meaning that liability for his claim is excluded as his claimed injury does not meet the definition of ’injury’ in the SRC Act?

    ·Whether the Respondent is liable to pay compensation, pursuant to section 14 of the SRC Act, in respect of the claimed injury?

17. Mr Le in his covering letter for the Statement of Issues noted that his claim for review did not relate to ‘Issues 2.1, 2.2 and 2.3’ of those listed by the respondent. He explained that as Comcare had made a favourable finding that he had an anxiety state and that his anxiety state was significantly related to his employment, there was no need to summons his medical documents, nor for him to attend a consultation with a psychiatrist.

18. On 13 February Mr Le had been directed that ‘On or before 27 March 2014 the Applicant must give to the Tribunal and the Respondent a witness statement from the Applicant together with any additional material on which he will seek to rely’.

19. On 14 March 2014, Mr Le emailed the Tribunal to seek until 25 July 2014 to respond to this direction.  Also on that day, the Tribunal advised the respondent that following Mr Le’s objection to the inspection of any of his medical records obtained under summons, inspection of the documents was suspended pending the outcome of a hearing on the issue.

20. On 17 March 2014, Mr Le confirmed that he did not consent to any of his medical files being viewed, copied or shared with anyone. He also requested advice of whether any of the medical records had been received and if so, where they were being held, and asked whether the Tribunal had cancelled the consultation with the psychiatrist on 23 May 2014.

21. In response the Tribunal advised Mr Le that the documents which had been received were being held in a secure safe and would not be accessed by anyone until the issues relating to the documents were resolved. He was also advised that it was not the Tribunal, but the respondent, who had made the appointment with a psychiatrist, and that any issues relating to this question could be discussed at the directions hearing.

22. On 18 March 2014, Mr Le was asked by the Tribunal to notify it of a suitable date for a directions hearing to discuss issues which had arisen and to determine a timetable for progressing the matter.

23. On 19 March 2014, Mr Le advised the Tribunal that he had authorised his wife to collect the medical records received to date under summons and to remove them from the Registry. The Tribunal responded that day by email advising Mr Le that the documents were required to be retained by the Tribunal until the issues concerning them had been resolved or the matter was withdrawn.  The providers of summons material are advised that they can elect to have the material returned to them or destroyed at the conclusion of the matter. Until then the documents are retained by the Tribunal.

24. Mr Le emailed the Tribunal to provide him with copies of the summons documents and the legislative provisions which supported the Tribunal’s authority to retain the documents. The Tribunal responded on 20 March 2014 advising Mr Le that it had sent him, by post, a copy of the summons issued by the Tribunal and those provisions in the AAT Act used generally by the Tribunal when reviewing applications in the workers compensation jurisdiction.

25. On 21 March 2014, Mr Le emailed the Tribunal to request clarification of its directions on 13 February 2014 and 11 March 2014, that Mr Le provide his Statement of Facts, Issues and Contentions by 25 July 2014 and for guidance as to what was required.  Mr Le noted that there had been no response by the Tribunal to his request for an extension of time to respond to the direction of 13 February 2014.  He also asked whether the Statements of Issues which had been provided by both parties ‘colligate’ (sic) to either of the two directions.

26. On 21 March 2014, Ms Le, on behalf of Mr Le, advised that Mr Le was willing to attend a directions hearing, but that ‘at this stage, [he was] unable to offer any commitment to a specific date … due to work commitments’.  She noted that the ‘Applicant will preferably be able to provide advice on his availability by C.O.B. Monday 24 March 2014’.

27. In the same email she also requested that the following issues be clarified/ confirmed before Mr Le attended the proposed directions hearing on 28 March 2014:

    ·What is the ‘specific purpose’ of the Directions Hearing?

    ·What is the ‘desired outcome’ of this Directions Hearing?

    ·What ‘format, process or procedure’ will be followed when conducting this Directions Hearing?

    ·What ‘specific rights’, according to the relevant Tribunals’ Act, does the Applicant have in relation to this Directions Hearing?

    ·Who has been ‘invited to attend’ and thus ‘be present’ at this direction’s Hearing?

    ·Who will be ‘questioned’ and ‘why’ at this Directions Hearing?

    ·Will a copy/indication of the ‘questions proposed’ to the Applicant/Representative be provided to the Applicant before this Directions Hearing?

28. On 21 March 2014, the Tribunal responded in detail to these issues raised in Mr Le’s email of that date. The Tribunal apologised for not having responded to his request for an extension of time and noted that before that issue could be decided, his reasons for the request needed to be provided. The response also indicated that the directions hearing proposed for 28 March 2014 was principally designed to resolve the issues relating to the summons documents, but that did not preclude other issues being raised.

29. On 21 March 2014, in response to a telephone call that day from Ms Le, the Tribunal explained the reasoning underpinning the request for reasons for an extension of time request and the need to seek the views of the respondent. An email from Ms Le on 21 March 2014 stated that Mr Le’s work commitments and his health were the reason that he sought an extension of time.

30. On 24 March 2014, Ms Le advised the Tribunal that Mr Le was not available for the directions hearing on 28 March 2014, but would be available after 3.00pm on 3 April 2014.  After some further correspondence the directions hearing was set down for 8.30am on 3 April 2014.

31. The respondent advised the Tribunal on 26 March 2014, that it did not object to the extension of time until 25 July 2014, nor to a revised timetable suggested by the applicant. Mr Le was also advised on 27 March 2014 that he would not be found to be non-compliant with the direction of 13 February 2014 that he provide a witness statement and an indication of any further evidence on which he sought to rely. 

32. On 30 March 2014, Mr Le advised the Tribunal that rather than confining the directions hearing on 3 April 2014 to the issue concerning the extent of the statement of issues (the jurisdiction issue), the issue of the summons material, and the request for an extension of time, he proposed a number of other issues.  These were:

    ·The Tribunal ‘has not acknowledged the Applicant’s application made on 23 November 2013’ of his reasons for seeking review, namely, that the administrative actions were not reasonable nor undertaken in a reasonable manner in accordance with s5A(2) of the Act.

    ·The Tribunal summoned the Applicant’s medical files without the Applicant’s consent or despite the Applicant’s objection.

    ·The Applicant (Mr Phuc Le) did not get ask/or given any opportunity in a Direction from [the conference registrar] to produce the ‘Applicant’s Statement of Issues’ prior to the Respondent presented their ‘Statement of Issues’ to the Tribunal. In fact the Applicant was never asked to produce a ‘Statement of Issues’.

    ·The Tribunal validated (accepted) the Respondent’s Statement of Issues of 2.1-2.3 which are clearly not what the Applicant raised with the Tribunal (AAT) on the 23 November 2013 to have reviewed.  Therefore these are irrelevant to the Applicant’s case in seeking a review with the Tribunal. [Here followed the text of the respondent’s Issues 2.1-2.3].

    ·The Applicant (Mr Phuc Le) objects to the Respondents ‘Statement of Issues’ dated  17 February 2014, as being relevant to the Applicant’s case, and would like the ‘Statement of Issues’ presented by the Applicant on the 13 March 2014 to be validated by the Tribunal.

    ·The Tribunal validated the Respondent’s request to summon all of the Applicant’s medical files, which are clearly not what the Applicant raised with the Tribunal (AAT) on the 23 November 2013 to have reviewed.  Therefore these are irrelevant to the Applicant’s case in seeking a review with the Tribunal.

    ·The Applicant (Mr Phuc Le) objects to attending a Medical Appointment with a Psychiatrist.

    ·The Applicant (Mr Phuc Le) objects to the Respondent presenting a ‘Statement of Facts, Issues and Contentions’ (SFIC) to the Tribunal before the Applicant himself.

    ·Applicant (Mr Phuc Le) submitted a request originally on the 14 March and again on the 21 March, for an extension of time until the 25 July 2014 in which to provide a ‘Witness Statement along with any new material’, directed by the Tribunal to be presented on the 27 March 2014.

    ·The manner in which the Conference was conducted by the AAT on the 13 February 2014 was an unpleasant experience.

    ·The manner in which the AAT conducted itself in respect to the Applicant’s request for the AAT to provide specific confirmation that the Applicant will not deem as Non-Compliance for unable to submit the ‘Witness Statement’ due on the 27 March 2014, was an unpleasant experience.

33. On 31 March 2014, Mr Le was advised that these matters had been brought to the attention of the member who would conduct the directions hearing and he would be given an opportunity to discuss them at the forthcoming directions hearing.

34. At 9.00am on 3 April 2014, the directions hearing commenced.  At the hearing were Mr Le, Ms Le, and the representative for the respondent.  The Tribunal was presided over by Senior Member Creyke.  Also present was her associate who took notes of the hearing.

35. The Tribunal commenced by discussing its powers on review under the Act, which are to review all aspects of a decision under review.  It was explained that this is its function as a merit review tribunal.  In the course of the discussion Mr Le raised the issues of his objection to the production of the summons material, his objection to seeing a psychiatrist, and his belief that he had been unjustly treated by the Tribunal during the processes to date.

36. The Tribunal notes that it has power to issue summons.  That power is set out in section 40 of the Act which states that:

    40 … [F]or the purposes of the hearing of a proceeding before the Tribunal, the member presiding at the hearing, the Registrar, a District Registrar or a Deputy District Registrar may summon a person to appear before the Tribunal at that hearing: …(c) to produce any books, documents or things in the possession, custody or control of the person or persons named in the summons that are mentioned in the summons.

37. As the nature and date of occurrence of the injury suffered by Mr Le are issues which have to be decided by the Tribunal it is information needed ‘for the purposes of the hearing of a proceeding before the Tribunal’ and is, therefore, information which can be subject to a summons. The Tribunal notes that anyone who fails to comply with a summons issued by the Tribunal has committed an offence the penalty for which is 30 penalty units (currently a fine of $5,100.00), or imprisonment for 6 months, or both.[1]

    [1] Administrative Appeals Tribunal Act 1975 (Cth) section 61.

38. In relation to the matter of its jurisdiction, Mr Le said he did not accept that he could not limit the issues which the Tribunal could consider.  He informed the Tribunal that he intended to take the matter of its jurisdiction to the Federal Court. The respondent noted that it may be prudent for him to get legal advice before he did so and of the costs involved.  Mr Le’s response was that ‘I don’t think we will take legal advice’, as we have had problems with lawyers in the past.  He said ‘We are very passionate about what we are doing’ and he was willing to pay the fees. Mr Le advised that he wanted written reasons ‘for rulings that the Tribunal has made concerning its jurisdiction’ under the AAT Act and the Safety, Rehabilitation and Compensation Act 1988 (Cth). The hearing concluded at 10.59am.

39. On 4 April the Tribunal issued a direction that it had jurisdiction and a duty to hear all the issues involved in the matter. On 1 May 2014 Mr Le requested reasons in writing for its decision on the jurisdictional issue.

40. In his request for reasons, Mr Le’s complaints are that he has been denied natural justice due to the following actions by the Tribunal in that it:

    ·Validated the Respondent’s Statement of Issues whilst failing to appropriate/validate my (Phuc Le) Statement of Issues submitted on 20 March 2014’.

    ·Validated the Respondent’s request that all my (Phuc Le) medical files be summoned despite my ‘Letter of Objection’ submitted to the AAT on the 13^th February 2014.

    ·Validated the Respondent’s request that I (Phuc Le) attend to a Medical Assessment with a Psychiatrist, by having sent the respondent a Direction on the 13 February 2014, to arrange an appointment).

    Consideration

41. The AAT provides in section 43:

    43(2) Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.

    43(2A) Where the Tribunal does not give reasons in writing for its decision, a party to the proceeding may, within 28 days after the day on which a copy of the decision of the Tribunal is given to that party, request the Tribunal to give to that party a statement in writing of the reasons of the Tribunal for its decision, and the Tribunal shall, within 28 days after receiving the request, give to that party such a statement.

    43 (2B) Where the Tribunal gives in writing the reasons for its decision, those reasons shall including its findings on material questions of fact and reference to the evidence or other material on which those findings were based.

1. The Tribunal notes that the requirement in section 43 to provide reasons only relates to ‘its decision’. The decision made by the Tribunal on 4 April 2014 was ‘The Tribunal has jurisdiction to hear the application on the whole of the reviewable decision’.  It is that decision on the issue of its jurisdiction in this matter which is the subject of its reasons.

2. The Tribunal is charged with conducting a final review on the merits of decisions over which it has jurisdiction.  ‘Review of the merits’ is not specifically defined in the AAT Act.

3. Specifically section 25 of the AAT Act provides:

   The Tribunal has power to review any decision in respect of which application is made to it under any enactment’,[2] and ‘may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers.[3]

   In other words, in relation to decisions which the Tribunal is authorised to review, it has a discretion as to the matters it will consider.  That means the Tribunal is not restricted to the issues raised by any party to a matter.

   [2] Administrative Appeals Tribunal Act 1975 (Cth) section 25(4).

   [3] Administrative Appeals Tribunal Act 1975 (Cth) section 25(4A).

4. The Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) provides in section 64 that the Tribunal may review ‘a reviewable decision’.  A ‘decision’ in the SRC Act is defined as having the same meaning as ‘decision’ in the AAT Act.  At the directions hearing Mr Le was shown the text of the definition of ‘decision’ in the AAT Act and it was pointed out that the meaning of the term was extensive.

5. The SRC Act defines ‘reviewable decision’ as a decision by Comcare whether an applicant is entitled to compensation.  In Mr Le’s case, his claim was for acceptance of liability for his condition of anxiety disorder.  In coming to that decision Comcare must consider all aspects of the Act relating to acceptance of liability.  Those questions which Comcare must consider are reflected in the statement of issues prepared by the representative for Comcare for the purposes of the review by the Tribunal of the decision the subject of Mr Le’s application to the Tribunal.

6. The AAT Act also provides that ‘for the purposes of reviewing a decision’, the Tribunal ‘may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision’.[4] Colloquially that is often explained as meaning that the Tribunal ‘stands in the shoes of the [agency] decision-maker’. In other words the Tribunal can look at all aspects of the decision and has the same powers to make decisions as are conferred on the person within the agency who made the decision under review.

   [4] Administrative Appeals Tribunal Act 1975 (Cth) section 43(1).

7. However, the Tribunal’s role is different from Comcare’s in two important respects.  The Tribunal is not bound by government policy; and, unless prohibited from doing so by statute, it is entitled to take into account new evidence which was not available to the original decision-maker, in this case, Comcare.[5] In addition, review by the Tribunal is review by a body which is independent of government and whose members are statutory appointments as a measure of that independence.

   [5] Shi v Migration Agents Review Authority (2008) 248 ALR 390 at 399 per Kirby J.

8. As the Full Court of the Federal Court said in Drake v Minister for Immigration and Ethnic Affairs:[6]

   The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him.  The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.

   [6] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419 per Bowen CJ and Deane J.

9. Accordingly, the Tribunal’s function is to make the correct or preferable decision on the material before it.   As Kiefel J in the High Court expressed that role in a case concerning the powers of tribunals:

   The object of the review undertaken by the Tribunal [is] to determine what is the ‘correct or preferable decision’. ‘Preferable’ is apt to refer to a decision which involves discretionary considerations.  A ‘correct’ decision, in the context of review, might be taken to be one rightly made, in the proper sense … [T]he Tribunal reaches its conclusion, as to what is the correct decision, by conducting its own, independent, assessment and determination of the matters necessary to be addressed.[7]

   [7] Eg Kirby J in Shi v Migration Agents Review Authority (2008) 248 ALR 390 at 422-423.

10. In summary, regardless of what the decision-maker who made the decision under review decided, it is for the Tribunal to make up its own mind on all the issues. That was explained to Mr Le at the hearing on 3 April 2014.

11. In coming to its decision the Tribunal may take into account the existing evidence, any new evidence before it, the law, and if appropriate, any government policy.  In its consideration of the law, the Tribunal, as an independent decision-maker, looks at the matter afresh, so that it can be satisfied that it has considered all aspects of the decision required by the law, in this case, the SRC Act. 

12. It is only if it undertakes this process, in a responsible manner, is the Tribunal able to decide whether Comcare has made the correct or preferable decision and to affirm Comcare’s decision.  If not, the law requires the Tribunal to vary Comcare’s decision, or to set it aside and make a decision in substitution for Comcare’s decision, or to remit the matter to Comcare for reconsideration.[8] In performing this function the Tribunal, as an independent decision-maker, is not bound to accept any aspect of the decision made by Comcare.  It must decide those issues for itself.

    [8] Administrative Appeals Tribunal Act 1975 (Cth) section 43.

13. Accordingly, the Tribunal rejects Mr Le’s argument that in the matter he has brought to the Tribunal, the Tribunal must accept the findings made by the Comcare decision-maker which are favourable to him. That means the Tribunal is not required to confine its consideration in this matter to the issues raised in the submission by Mr Le, namely, whether the administrative action which contributed to his anxiety state was reasonable administrative action conducted in a reasonable manner.[9]

    [9] Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 5A, 5B.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member

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

Associate

13 May 2014

Date of interlocutory hearing	3 April 2014
Applicant	In person
Advocate for the Respondent	Stuart Marris
Solicitors for the Respondent	Sparke Helmore