Re Oliver and Comcare
[2018] AATA 1964
•29 June 2018
Oliver and Comcare (Compensation) [2018] AATA 1964 (29 June 2018)
Division:GENERAL DIVISION
File Number(s): 2017/3257
Re:Catrina Oliver
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President Gary Humphries
Date:29 June 2018
Place:Canberra
The Applicant's application in matter 2017/3257 is dismissed pursuant to s 42B of the Administrative AppealsTribunal Act 1975.
........................................................................
Deputy President Gary HumphriesCatchwords
PRACTICE AND PROCEDURE – s 42B of the Administrative Appeals Tribunal Act 1975 – dismissal of proceedings if there are no reasonable prospects of success – Tribunal entitled to assess the strength of case based on material before it – Tribunal not satisfied that the Applicant has evidence of sufficient quality and weight to succeed at a hearing – Application dismissed
PRACTICE AND PROCEDURE – release from an implied undertaking
Legislation
Administrative Appeals Tribunal Act 1975 ss 42B
Federal Court of Australia Act 1976 s 31A
Safety, Rehabilitation and Compensation Act 1988 ss 14, 37
Cases
Comcare v Wuth [2018] FCAFC 13
Chin and Comcare [2017] AATA 634
Filsell and Comcare [2009] AATA 90
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd and Others [2008] FCAFC 60
Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257
LMFP and Comcare [2017] AATA 1512
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
MRCC v May (2016) 257 CLR 468
Novosel v Comcare [2017] FCA 722
Spencer v Commonwealth of Australia [2010] HCA 28Warner and Comcare [2017] AATA 2709
Secondary Material
Explanatory Memorandum, Tribunals Amalgamation Bill 2014
REASONS FOR DECISION
Deputy President Gary Humphries
29 June 2018
INTRODUCTION
The Applicant, Ms Catrina Oliver has brought three applications for merits review before the Tribunal, all relating to injuries she says she incurred in the course of her employment. This is an interlocutory application by Comcare for dismissal of one of those applications, pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), on the basis that it has no reasonable prospect of success.
Section 42B(1) allows the Tribunal to dismiss an application for review of a decision, at any stage of a proceeding, if it is satisfied that the application:
(a)is frivolous, vexatious misconceived or lacking in substance;
(b)has no reasonable prospect of success; or
(c)is otherwise an abuse of process of the Tribunal.
BACKGROUND
The following factual background was submitted by the parties to the Tribunal.
Ms Oliver is, and was at all relevant times, employed with the Department of Social Services (the DSS). She has an accepted workers compensation claim in respect of an unspecified disorder of synovium, tendon and bursa (left) and wrist sprain (left)[1] (the compensable conditions) with a date of injury of 30 July 2012.
[1] In this decision, italicised text is generally used to indicate direct quotations.
Ms Oliver has two proceedings before the Tribunal which relate to the compensable conditions. Those applications are:
(i)Application 2016/4926 which relates to a decision under s 37(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) requiring her to undertake a rehabilitation program commencing on 14 July 2016.
(ii)Application 2017/0156 which relates to a suspension of her rights under section 37(7) of the Act for refusing or failing to undertake the rehabilitation program the subject of application 2016/4926 without reasonable excuse.
A third application before the Tribunal also relates, she says, to her compensable conditions. It arose in the following way.
On 14 November 2016, a workplace hazard and incident form was filed by Ms Oliver. She described the so-called hazard or incident as a secondary overuse injury as a result of not using her left wrist. Ms Oliver stated that her right shoulder and wrist had become extremely painful to the point that she was unable to fully function at work, and was limiting her functioning in her daily life.
On 8 December 2016, Ms Oliver submitted a workers compensation claim with respect to her right shoulder and wrist. She claimed for a secondary overuse injury resulting from not being able to use her left wrist/arm. She stated that she first noticed symptoms on 1 October 2015, and first sought medical treatment on 14 October 2015 from Dr Tehmina Rauf-Rahim, general practitioner.
On 23 December 2016, an employer statement was provided for, or on behalf of, the DSS by Ms Bernadette Shanks, Director, in response to Ms Oliver’s claim. Ms Shanks advised that the DSS considered there was doubt regarding the diagnosis and pathology of the claimed condition, as well as its causation. Ms Shanks noted that there was no specific workplace incident which caused the claimed condition, and that Ms Oliver had made complaints of right wrist, elbow and shoulder pain during her maternity leave in the period from 1 September 2014 to 22 June 2015. Ms Shanks summarised those instances as follows:
(i)On 31 May 2015, Catherine Riddel, physiotherapist, stated Catrina reports recent occasions of right arm and shoulder pain due to protecting her left arm.
(ii)In a medical certificate dated 3 June 2015, Dr Rauf-Rahim stated R wrist pain, R elbow and R shoulder pain.
On 10 February 2017, Comcare made a determination by which it denied liability to pay compensation to Ms Oliver for neck, shoulder and back pain (right) pursuant to s 14 of the Act.
(i)In making its decision, Comcare was not satisfied that she was suffering from an ailment.
(ii)Comcare also was not satisfied that her employment was significant in the causation of her claimed condition.
(iii)Comcare noted that Dr (Gia) Han Thai, occupational physician, had stated in a report dated 18 January 2017 that Ms Oliver’s symptoms would have developed in any event, and that he could not identify any employment related factors that may be contributing to her condition.
Ms Oliver sought reconsideration of the determination on 2 March 2017. On 13 April 2017, Comcare made a reviewable decision (the reviewable decision) that affirmed the determination. Comcare was not satisfied that she had an injury or disease as prescribed under the provisions of the Act or that her experience of pain was secondary to her compensable conditions.
Ms Oliver lodged an application for review of the reviewable decision with the Tribunal on 2 June 2017. It is this application which Comcare submits ought to be dismissed under s 42B of the AAT Act.
THE MEDICAL EVIDENCE
An MRI of Ms Oliver’s right wrist on 30 August 2012 showed mild tenosynovitis of the extensor carpi ulnaris tendon in the ulnar styloid. There was no other abnormality in the wrist.
On 12 September 2012, Ms Lenore Gunning, occupational therapist, reported that Ms Oliver had experienced pain in the right forearm extensor origin in excess of two years ago. On 31 July 2013, Ms Gunning reported that Ms Oliver had been experiencing right upper limb pain which she – Ms Oliver – attributed to increasing use while managing the left wrist condition.
On 15 August 2013, Ms Kristine Lew, physiotherapist, did not place an indicator in a body chart for right upper limb discomfort. Ms Lew observed that the ranges of movement in Ms Oliver’s right shoulder and wrist were normal. Her grip strength in the right wrist was reported as reduced.
However, on 18 October 2013, Ms Lew reported that grip strength in her right wrist was normal and there continued to be a normal range of movement in her right wrist.
In a medical certificate dated 8 July 2014, Dr Rauf-Rahim noted that Ms Oliver was complaining of left wrist pain and tingling and numbness which were associated with right wrist pain too.
On 13 August 2014, Dr Matthew Paul, occupational physician, observed that there was a full range of movement in her right wrist.
On 31 May 2015, Ms Riddel noted that she reported recent occasions of right arm and shoulder pain due to protecting her left arm.
On 19 October 2015, Dr Schalk Willem van der Merwe, general specialist, reported that an x-ray of Ms Oliver’s right shoulder, specifically the glenohumeral and acromioclavicular joints, appeared unremarkable. Dr van der Merwe advised that no bone or joint abnormality was noted. Dr van der Merwe advised that there was no abnormality noted on ultrasound of Ms Oliver’s supraspinatus, infraspinatus, subcapularis, biceps and visualised portions of the triceps muscles. Dr van der Merwe advised that no bursal abnormality was noted.
In a medical certificate dated 11 November 2016, Dr Rauf-Rahim asserted that a bone scan showed increased uptake of the right acromioclavicular joint.
On 18 January 2017, Dr Thai reported the following:
(i)Ms Oliver told Dr Thai that she had right sided intermittent shoulder pain since returning from maternity leave in June 2015. She described the pain in the posterior shoulder girdle radiating up to the neck and down the forearm into the wrist on the right side. She suffered from posterior shoulder pain, referred from the cervical spine.
(ii)But the above complaints were made in the absence of abnormal findings on right shoulder X-ray and ultrasound.
(iii)Dr Thai observed that Ms Oliver had a full range of movement in the right shoulder, making the diagnosis of RSI of the right shoulder unlikely.
(iv)He considered that her right-sided posterior shoulder and neck pain were related to referred pain from the cervical spine.
(v)Dr Thai advised that there were no employment-related factors identified as contributing to Ms Oliver’s right posterior shoulder pain. He noted that she did not perform repetitive tasks at work that were likely to exacerbate shoulder pain. He considered that her symptoms would have developed in any event. Dr Thai advised that it would be difficult to argue that Ms Oliver’s symptoms related to her favouring the right arm.
On 1 December 2016, Ms Oliver reported to Dr Leon Le Leu, occupational physician, that her right shoulder had been playing up and that she believed that had occurred as a result of overuse of her right side. Contrary to the employer statement of Ms Shanks of 23 December 2016, Ms Oliver told Dr Le Leu that she had not had previous problems with her right shoulder. Dr Le Leu did not provide any diagnoses with respect to any alleged disorders in Ms Oliver’s right upper extremity.
On 10 May 2017, Professor Peter Youssef, rheumatologist, reported the following:
(i)Ms Oliver said that she developed discomfort in the right wrist in early 2012.
(ii)She said that she had swelling over the back of the wrist and may have had a ganglion which spontaneously resolved.
(iii)Professor Youssef noted that, in a report dated 5 September 2012, Dr Maurizio Damiani, orthopaedic surgeon, did not find any significant abnormality in the right wrist.
(iv)Professor Youssef advised that there was no evidence of abnormality in Ms Oliver’s right wrist.
In a further report dated 11 October 2017, Professor Youssef reported the following:
(i)Ms Oliver does not have an ailment in the right upper limb.
(ii)He noted that there was no mention in the notes from Isabella Plains Medical Centre of her experiencing right wrist pain between 20 September 2012 and 12 April 2013. The grip strength in her right hand was also normal on 12 October 2012 and 8 April 2013, at 25 kilograms and 23 kilograms grip strength respectively.
(iii)The mild tenosynovitis described in the MRI of 30 August 2012 would only cause mild discomfort on the dorsum of the ulnar aspect of the right wrist which would be expected to settle with two to six weeks of reduced activity in the wrist. Ms Oliver reported that the right wrist pain had settled.
(iv)The right shoulder girdle pain developed by Ms Oliver while on maternity leave, and reported to Ms Riddel and Dr Rauf-Rahim on 31 May 2015 and 3 June 2015 respectively, is not uncommon and is well recognised in mothers nursing their infants.
(v)She did not report any right upper limb discomfort when he asked her about her symptoms.
(vi)No abnormality was found on examining her right upper limb.
(vii)Furthermore, x-ray and ultrasound of her right shoulder were normal. In any event, increased uptake of the right acromioclavicular joint is not an uncommon finding in a bone scan.
(viii)There was no objective evidence of a physical disorder to the right upper limb. Employment did not contribute significantly to any abnormality in the right upper limb.
(ix)Ms Oliver’s main right upper limb complaint in 2015 was shoulder pain. Her work was not such that it would cause a significant problem with her right shoulder, such as tendonitis. Her work does not require regular above chest or shoulder height activity. Typing and keyboard work does not cause damage to the shoulders.
In a statement dated 7 September 2017, Ms Oliver asserted that – in 2016, when Comcare determined that she should engage in a rehabilitation program that envisaged a return to full time hours – she increased the use of her right arm and that resulted in flare ups in her right wrist, arm and shoulder. The flare ups allegedly consisted of increasing levels of pain, swelling and reduced movement. The flare ups allegedly prevented her from engaging in activities of daily living, and caused her regularly to breakdown in tears from the pain in both arms.
This history was agreed between the parties. However, Ms Oliver referred to the following additional evidence supporting her claim for a compensable neck, shoulder and back pain (right) condition.
On 15 October 2013 Ms Lew from Hands-Off Physiotherapy identified that Ms Oliver's compensation with her right hand presented a risk that predisposed Ms Oliver to further injuries due to overuse.
On 16 April 2014 Ms Bronwyn Thompson from Fit to Manage reported that Ms Oliver's reliance on her right arm was a potential issue.
On 28 August 2015 Active Recovery reported right upper limb pain as a presenting problem of Ms Oliver.
On 9 September 2015 Dr Donna Curnow, General Practitioner, noted Ms Oliver reported she was experiencing right elbow and shoulder pain.
On 25 September 2015 Dr Usha Rao, General Practitioner, noted Ms Oliver reported she was experiencing right shoulder pain.
On 1 October 2015 Dr Rauf-Rahim noted Ms Oliver reported she was experiencing right elbow and shoulder pain.
Dr Le Leu in his report dated 1 December 2016 confirmed he examined Ms Oliver. He made findings of pain at the extremes of movement over the posterior aspect of the trapezius, reduced flexion, extension, abduction, adduction, internal rotation and external rotation of the right shoulder. He identified reduced function on the right shoulder and noted the condition was worsening with work.
Dr Thai identified right posterior shoulder pain and restricted power in the right upper limb. He opined that the shoulder pain is referred pain attributable to a cervical spine injury.
Prof Youssef did not examine Ms Oliver until 10 May 2017 and his findings differ markedly to those of Dr Le Leu and Dr Thai.
In response to this evidence, Comcare noted that the report of Dr Le Leu of 1 December 2016 noted only a slight disparity between normal range of movement and the actual range of movement in Ms Oliver’s shoulder – 10° at most. Comcare also noted that Dr Le Leu observed that her right shoulder was becoming sorer concurrently with work, not because of work. It was further pointed out that Dr Thai made no reference in his report to a cervical spine injury.
THE ISSUES IN THE SUBSTANTIVE APPLICATION
The parties agree that the issues before the Tribunal in the substantive application for review are as follows:
(i)What is the appropriate diagnosis for Ms Oliver’s condition (if any) sustained in October 2015?
(ii)Whether she has suffered an ailment, or an aggravation of an ailment, as defined by s 4(1) of the Act?
(iii)Whether the ailment, or aggravation of an ailment (if any), was contributed to, to a significant degree, by her employment by the Commonwealth pursuant to s 5B of the Act?
(iv)Whether Comcare is liable to pay compensation in respect of an injury (if any) under s 14 of the Act?
(v)What is the appropriate date of injury (if any) pursuant to s 7(4) of the Act?
THE APPLICABLE LAW
Section 42B was introduced into the AAT Act by the Tribunals Amalgamation Act 2015. The Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 explained:
550. New section 42B would … provide for additional circumstances in which the Tribunal may dismiss an application for review…
552. This amendment would modernise the language of existing paragraph 42B(1)(a) and clarify the policy surrounding the grounds for dismissal. The proposed new grounds are similar to dismissal powers available to other bodies. For example Rule 26.01 of the Federal Court Rules 2011 allow for summary judgment on matters which have no reasonable prospect of success, or are an abuse of process. Similarly, section 47 of the Queensland Civil and Administrative Tribunal Act 2009 provides for dismissal of applications where the application is frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process. These powers would provide the Tribunal with greater power to dismiss unmeritorious matters early where appropriate.
In Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd and Others [2008] FCAFC 60 the Full Court of the Federal Court considered the scope of s 31A of the Federal Court of Australia Act 1976, a provision providing for summary judgement where a party has no reasonable prospect of successfully prosecuting or defending the proceeding. Their Honours there summarised the effect of s 31A in slightly different ways. Finkelstein J noted at [23]:
… the section requires the judge to conduct what might loosely be described as a preliminary trial and look more closely than he would under an O 14 application to a party’s assertion that there is a real question of law or fact to be decided. Such an assertion is to be examined with a critical eye. The judge is to decide whether the opposing party has evidence of sufficient quality and weight to be able to succeed at trial. There will be cases where the asserted facts appear to be so improbable that there is no point in allowing them to go to trial.
Rares J at [74] considered:
Accordingly, if Jefferson Ford is able to establish that there was a real issue of fact or a real issue of law capable of being decided in its favour then, subject to the Court’s discretion to determine the question of law, the matter ought to be allowed to go to trial in the ordinary way.
Gordon J set out several principles which inform consideration of an application for judgment under s 31A. Her Honour referred at [124] to comments of Lord Browne-Wilkinson who opined that:
… “civil litigation is far too expensive” and “there should be an increased emphasis on summary disposal of proceedings which are amenable to such treatment”).
Her Honour then noted:
Section 31A is a provision which permits, and assists, the Court to manage proceedings and therefore assists in controlling the cost of, and delays in, resolving proceedings by summarily dismissing claims which have no reasonable prospect of success. At the same time, it is a provision that ensures that no injustice is done to a party. The mechanism adopted to achieve these objectives is that before judgment is entered, the claim or part of the claim must have “no reasonable prospect of success.”
One of the principles to which her Honour referred at [132] was that:
…the court must draw all reasonable inferences — but only reasonable inferences — in favour of the non-moving party…
Her Honour also noted at [124]:
… the express words of s 31A impose a different and less stringent test to that described in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129–30.
Counsel for Comcare distilled the tests proposed by Finkelstein and Rares JJ as follows: does the applicant have evidence of sufficient quality and weight to succeed at trial such that a real issue of fact or law must be determined?
Comcare submitted that subjectively experienced symptoms, such as pain, without an accompanying physiological or psychological change, are not sufficient to establish the existence of an ailment or an injury for the purpose of the Act. It relied upon the High Court’s decision in Military Rehabilitation and Compensation Commission v May [2016] HCA 19 (at [52]- and [57]) as authority for that proposition:
[52] If there is not a “disease” within para (a) of the definition of “injury”, the tribunal of fact next inquires whether there is an “injury (other than a disease)” within para (b). The third question is — does the evidence demonstrate the existence of a physical or mental “injury” (in the primary sense of that word)? Generally, that will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. However, that judicial language is not to be construed or applied as if it were the words of a statute defining a necessary condition for the existence of an “injury (other than a disease)”. The language of judgments should not “be applied literally to facts without further consideration of what is conveyed by the reasoning” in the cases from which it is derived, or without regard to the text and scheme of the Act…
Not sufficient for an employee merely to feel unwell
[57] The Full Court concluded that the inquiry demanded by the statutory definition of “injury” was “whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind” (emphasis added). To the extent that conclusion suggested that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are sufficient to provide a positive answer to the first or third questions set out above, that conclusion should be rejected. (Footnotes omitted)
The Tribunal was also referred to the Federal Court decision in Comcare v Wuth [2018] FCAFC 13. At [97]-[98] Perry J observed:
In this regard, as Comcare submitted, the case is similar to that in Rodriguez v Telstra Corporation Ltd [2002] FCA 30; (2002) 66 ALD 579 (Rodriguez). In that case, the Tribunal had found that by September 1998 Mr Rodriguez’s depressive disorder had ceased to be applicable to his employment, and was no longer an “injury” under the SRC Act. Mr Rodriguez submitted that the Tribunal, in so concluding, had substituted its own opinion for that of the medical experts or, put another way, the Tribunal’s conclusion was unsupported by any evidence. In upholding the appeal, Kiefel J found that no medical expert had expressed the opinion arrived at by the Tribunal and none of the medical experts were questioned on the factual basis which underpinned the Tribunal’s opinion (Rodriguez at [21]–[22]). Justice Kiefel also referred to the fact that the applicant tended to camouflage his depression, which in turn highlighted the complexity of the task as one requiring expert psychiatric evaluation (Rodriguez at [22]). Her Honour held that, “if a view is formed by a Tribunal which goes beyond the opinions expressed by the experts in evidence, fairness requires that it be disclosed and the parties permitted an opportunity to address it” (Rodriguez at [24]). This is so irrespective of whether the Tribunal member is medically qualified (Rodriguez at [24]).
[98] Further, while accepting that the Tribunal is not bound by the rules of evidence and may inform itself as it thinks fit, her Honour held this does not mean that the rules of evidence are to be ignored. Rather, her Honour held that:
25.…The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force: Pochi v Minister for Immigration & Ethnic Affairs (1979) 36 FLR 482, 492, referring to Consolidated Edison Co v National Labour Relations Board (1938) 305 US 197, 229; The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, 256. The drawing of an inference without evidence is an error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355–356; Repatriation Commission v Maley (1991) 24 ALD 43 (Full Court). Similarly such error is shown when the Tribunal bases its conclusion on its own view of a matter which requires evidence. In Collector of Customs (Tasmania) v Flinders Island Community Association (1985) 60 ALR 717, 722 a Full Court of this Court held that it was unjustifiable, and therefore legally erroneous, for a Tribunal to base its conclusion upon its own understanding of traditional aboriginal concepts of community ownership and interests, in the absence of any evidence on the matter.
26. It may be said that expert evidence is sometimes over-utilised and is called in situations where an arbiter of fact is in a position to determine the matter for itself. Sometimes all that is necessary is for a method or process to be explained, so that the Court or Tribunal can then apply it to the facts it finds. On the other hand, there are cases where a whole question is, in effect, relegated to experts to give evidence upon it. This was such a case. The Tribunal was not put in a position where it could simply draw its own inferences. In an area which required an understanding of a disorder it could only receive the opinions, have the bases for them explained if they differed and apply logic to determine which were to be accepted.
On the basis of this passage, it was argued that there must be expert evidence before the Tribunal before it can make a finding of fact that a disorder exists or doesn’t exist, and that there must be sufficient evidence establishing that a disorder meets the test set out in the Act to constitute an injury.
Counsel for Ms Oliver referred the Tribunal to Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257, where Wilcox J stated at 264-265:
It seems to me that one way of testing whether a proceeding is instituted "without reasonable cause" is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being "without reasonable cause". But where it appears that, on the applicant's own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause. That is the situation in the present case. The qualification of s 347 applies. The court has power to order costs against the applicant.
Reference was also made to the formulation of the appropriate test under s 42B by Deputy President Jarvis in Filsell and Comcare [2009] AATA 90. The Deputy President stated at [33]:
Comcare contends that the present proceedings should be dismissed under s 42B of the AAT Act, on the grounds that the proceedings are frivolous or vexatious. I think that applications for dismissal under s 42B should be approached according to the following principles.
(a)…
(b)The expression “vexatious” can include proceedings brought with the intention of annoying or embarrassing or harassing the other party, or for some collateral purpose other than having the court or tribunal adjudicate on the issues raised by the proceedings, or, irrespective of the motive of the litigant, if the proceedings are “so obviously untenable or manifestly groundless as to be utterly hopeless”: Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491 per Roden J, or if the proceedings have “no reasonable prospect at all of success”: Abrahams v Comcare (2006) 93 ALD 147 at [24], per Madgwick J.
(c)The power of the tribunal to dismiss proceedings under s 42B is a power that should be used cautiously. Unless the tribunal is satisfied that the application is frivolous or vexatious in the sense referred to in subparas (a) and (b) above, an applicant should not be denied the right to have the tribunal review the decision in issue on the merits, by conducting a hearing de novo and considering the evidence that the applicant can properly adduce at that hearing: General Steel Industries Inc v Cmr for Railways (NSW) (1964) 112 CLR 125 at 129–130.
(d)However, if proceedings have no reasonable prospect at all of success, they should be dismissed under s 42B, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing.
(e)Conversely, applications to dismiss under s 42B should not be made except in appropriate cases, since otherwise the parties will be put to additional expense, the tribunal’s time and resources will be wasted, and the tribunal’s ability to provide a mechanism of review that is fair, just, economical, informal and quick (as required by s 2A of the AAT Act) will be impeded.
(f)Medical or other expert evidence generally needs to be evaluated in the context of evidence from the applicant or other lay witnesses. Where an application is made under s 42B at an early stage of proceedings in this tribunal, the parties may not have submitted, or may not be in a position to submit, all of the lay or medical evidence that might be available in relation to the proceedings. Further, if the applicant is unrepresented, there is no obligation to file any document in this tribunal that would have the status of pleadings in a civil court. In addition, in some circumstances (depending on the evidence adduced at the hearing) this tribunal exercises a limited inquisitorial role, whereby it considers a case not articulated by the applicant: see the authorities I discussed in Re Kowalski and Repatriation Commission [2008] AATA 903 at [33]–[35]. All of these matters mean that the basis of the application for review is often not as readily ascertainable as is the case where applications are made to strike out actions in civil courts on the grounds that the pleadings do not disclose a cause of action. This underlines the need for the tribunal to proceed cautiously when considering applications for dismissal under s 42B…
In Spencer v Commonwealth of Australia [2010] HCA 28 the High Court majority (Hayne, Crennan, Kiefel and Bell JJ) made the following observations at [49]-[60]:
Summary judgment — Federal Court Act, s 31A
[49] This was not a case in which the Federal Court could be satisfied that the applicant had “no reasonable prospect of successfully prosecuting the proceeding”…
After setting out the terms of s 31A the majority continued:
Two aspects of these provisions are to be noted.
[51] First, the central idea about which the provisions pivot is “no reasonable prospect” (emphasis added). The choice of the word “reasonable” is important. If s 31A is to be seen as deriving from r 24.2 of the Civil Procedure Rules 1998 of England and Wales, its provisions underwent an important change in the course of their translation from that jurisdiction to this. The English rule speaks of “no real prospect”; s 31A speaks of “no reasonable prospect”. The two phrases convey very different meanings.
[52] Second, effect must be given to the negative admonition in subs (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”. It will be necessary to examine further the notion of “no reasonable prospect”. But before undertaking that task, it is important to begin by recognising that the combined effect of subss (2) and (3) is that the enquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.
[53] In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. Those earlier provisions were understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail. That this was the basis of earlier decisions may be illustrated by reference to two decisions of this court often cited in connection with questions of summary judgment: Dey v Victorian Railways Commissioners and General Steel Industries Inc v Cmr for Railways (NSW).
[54] In Dey, the defendants moved for summary judgment on the grounds that the action was frivolous, vexatious and an abuse of process. In a passage often later cited, Dixon J said that “[a] case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury”. What Dixon J meant by “very clear” was identified by his observation that “once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process” (emphasis added). And there would be a “real question” unless the defendant could “show that it was so certain that [the question] must be answered in the [defendant’s] favour that it would amount to an abuse of the process of the court to allow the action to go forward for determination according to the appointed modes of procedure” (emphasis added). The test identified by Dixon J in Dey can thus be seen to be a test requiring certain demonstration of the outcome of the litigation, not an assessment of the prospect of its success.
[55] In General Steel Industries, Barwick CJ pointed out that previous decisions about summary termination of actions on the motion of a defendant had been given in cases in which the so-called “inherent” jurisdiction of a court to protect itself and its processes from abuse had been invoked, and in cases where the defendant had relied upon a particular rule of court permitting the court to strike out pleadings or dismiss an action on it being shown that a pleading “does not disclose a reasonable cause of action” or the action “being shown by the pleadings to be frivolous or vexatious”. The material available to the court might differ, depending upon which power was invoked, but all the cases emphasised the need for “exceptional caution” in exercising a power to dismiss an action summarily. As Barwick CJ also pointed out in General Steel Industries, the test to be applied was expressed in many different ways, but in the end amounted to different ways of saying “that the case of the plaintiff is so clearly untenable that it cannot possibly succeed” (emphasis added). As that formulation shows, the test to be applied was one of demonstrated certainty of outcome.
[56] Because s 31A(3) provides that certainty of failure (“hopeless” or “bound to fail”) need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action, it is evident that s 31A is to be understood as requiring a different enquiry from that which had to be made under earlier procedural regimes. It follows, of course, that it is dangerous to seek to elucidate the meaning of the statutory expression “no reasonable prospect of successfully prosecuting the proceeding” by reference to what is said in those earlier cases.
[57] …
[58] How then should the expression “no reasonable prospect” be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is “no reasonable prospect”. The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like “no reasonable prospect” is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.
[59] In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.
[60] Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes. (Footnotes omitted, emphasis in bold added)
French CJ and Gummow J stated at [24]–[25]:
[24] The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said:
“The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried”.
More recently, in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following:
“Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.”
There would seem to be little distinction between those approaches and the requirement of a “real” as distinct from “fanciful” prospect of success contemplated by s 31A. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre‑existing Rules of Court authorising summary dispositions.
[25] Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
(Footnotes omitted)
CONSIDERATION
The implied undertaking and Prof Youssef
The Tribunal will deal firstly with an interlocutory issue. Ms Oliver took objection to the Tribunal using the reports of Prof Youssef. It was said that Prof Youssef’s opinion was formed using documents produced in other proceedings before the Tribunal, such that their use constituted a breach of the implied undertaking not to use such material for any purpose other than that for which it was given. Comcare told the Tribunal that Prof Youssef’s reports were produced as part of the claims management of her compensable conditions, and that the Tribunal had previously released Comcare from the implied undertaking for such purposes.
Ms Oliver submitted that her claim for a condition affecting her right limb was a different condition to her compensable conditions, and documents produced for claims management of the latter could not be produced in respect of the former without the granting of a release by the Tribunal.
In Warner and Comcare [2017] AATA 2709 an orthopaedic surgeon wrote a report on the claimant who suffered from an aggravation of a lumbar spine condition. Some of that report was informed by, or reproduced information from, material that had been produced under summons in proceedings in the Tribunal. The Tribunal considered the question of whether the implied undertaking that was held to apply in respect of the summonsed material prevented its use by the surgeon in the absence of a release. It held that Comcarerequired a release from that implied undertaking before it could use the material or the report in the management of the claimant’s other claims for compensation under the Act. That was because those other claims related to different injuries than the injury that was the subject of the proceedings in the Tribunal. The management of those other claims was a purpose collateral or ulterior to the purpose for which the material was produced under summons.
Conversely, in Chin and Comcare [2017] AATA 634 Comcare was compelled to produce documents to the Tribunal and the applicant. It then proposed to use those documents for what it considered were claims management purposes. It was held to be subject to an implied undertaking in relation to those documents. Moreover, the Tribunal found that it did not require a release from that implied undertaking before it could use the documents for the purposes of making future decisions about the applicant’s entitlement to compensation under the Act for her accepted injuries. That is because those purposes are not collateral or ulterior to the purpose for which the documents were produced in this review.
Senior Member Popple held at [27]:
I agree that claims management purposes are not collateral to the proceedings in this review. The Tribunal, in conducting merits review ofComcare’s decision, stands in the shoes of the decision maker. The Tribunal’s decision (when it is made) will be more than just closely connected with claims management purposes: it will be—like the decision under review—a claims management decision. This is not a situation where documents are proposed to be used “in one action for the purposes of another action”, the Tribunal’s decision will be one decision amongst several made during the management of the same claim.
The factual situation facing the Tribunal in the present circumstances fall somewhere between those encountered in Warner and Chin. Prof Youssef’s reports were not produced in respect of a condition unrelated to Ms Oliver’s compensable conditions, nor were they, on one reading, strictly related only to claims management in respect of the compensable conditions. On balance, however, I consider that it is fair to view the reports as having been produced in respect of claims management for her compensable conditions, and as such they do not require release from the implied undertaking.
If I am mistaken in this assessment, however, I would be prepared to grant that release at this stage of the proceedings. It is to be remembered that Ms Oliver asserts that her right limb condition is the direct outcome of suffering from the compensable conditions; material produced in connection with the latter it seems has a direct relevance to the assessment of a claim for compensation for the former.
In LMFP and Comcare [2017] AATA 1512 Deputy President Rayment released Comcare from the implied undertaking applying to a number of medical reports, citing the existence of special circumstances as referred to in the Tribunal’s General Practice Direction. The Deputy President observed at [3]:
It appears to me that this case is a proper one for the grant of leave for three reasons. First, the documents are sought by the Respondent for the proper purpose of claims management in pursuance of its statutory duties. Secondly, the documents would be available to be the subject of summonses to produce in due course in the event that Comcare makes a decision adverse to the claimant in future and the Applicant seeks review of those decisions. Thirdly, the Applicant when making the various claims made in the pending proceedings, authorised the Respondent to collect and retain information in handling the claims and it is likely that Comcare would have been able to obtain the documents produced under subpoena from the producing parties. The Applicant gave authority and consent to Comcare to collect “[their] personal information” from “[their] health professional or other health institution” “for the purposes of determining and managing [their] compensation claim and/or assessing [their] suitability to undertake a rehabilitation program and/or to assist Comcare in any actions authorized under the SRC Act”.The Tribunal was informed that Ms Oliver had made a similar authorisation to Comcare in respect to the present proceedings.
Application of MRCC v May
Comcare submitted that subjectively-experienced symptoms (e.g. pain), without an accompanying physiological change, are not sufficient to amount to an ailment or an injury for the purposes of the Act. It relied on the decision of the High Court in MRCC v May (2016) 257 CLR 468 at [57] as the foundation for this proposition. All of the available evidence, it submitted, shows that Ms Oliver’s complaints are of subjectively experienced symptoms of pain in the absence of a physiological change. Such complaints are in the circumstances insufficient at law to amount to an ailment or injury for the purposes of the Act.
In this context Comcare asserted that the evidence now before the Tribunal demonstrated that:
(i)there were no abnormal findings on right shoulder x-ray and ultrasound of Ms Oliver’s right shoulder on 19 October 2015;
(ii)the only indications of Ms Oliver’s claimed condition are her subjective reports of symptoms (pain) in right shoulder and wrist;
(iii)Prof Youssef advised that Ms Oliver did not have an ailment of the right upper limb, and his examination of her right upper limb found no abnormality.
The Tribunal is familiar in workers compensation proceedings with the postulation of pain conditions or syndromes in the absence of apparent physiological cause or origin. Such cases appear not infrequently for determination. It may be, following May, that a higher bar will need to be met in future for cases of this description to succeed. However, the Tribunal in this case is not persuaded that Ms Oliver’s situation mirrors that of Mr May.
In his report of 1 December 2016 Dr Le Leu reported that Ms Oliver suffered from a reduced function of the right shoulder. In addition, on 25 September 2015 her GP, Dr Usha Rao, reported swelling ovr trapeziusa nd deltoid area (sic). Each of these things witnessed by a doctor – reduced functionality and swelling – may constitute objectively-observable physiological change which, ultimately, corroborates Ms Oliver’s report of pain in her right limb. It could be said, of course, that this evidence of physiological change is slight, and is outweighed by the other evidence referred to by Comcare which suggests that there has been no physiological change. That may be so, but it would be quite unsafe for the Tribunal to find, at this preliminary stage, that Ms Oliver’s claim has no reasonable prospect of success because her circumstances fall within those described by the High Court in May.
Does Ms Oliver’s application have no reasonable prospect of success?
Notwithstanding its conclusion on the application of May’s case to the present circumstances, the Tribunal must consider whether Ms Oliver’s application should nonetheless be dismissed under s 42B on the basis that, in surveying the totality of her argument and evidence as presently constituted, it has no reasonable prospect of success. Examined in that light, the Tribunal comes to the conclusion that it should be dismissed for that reason.
The threshold evaluation set out in s 42B(1), and in analogous provisions in other legislation, is cast in a variety of ways in the caselaw already cited. The explanatory memorandum to the enacting legislation talks of conferring the Tribunal with greater power to dismiss unmeritorious matters early. Greater means by reference to the AAT Act as it previously stood. The various judgements of their Honours in Jefferson Ford invite the Tribunal to conduct a preliminary assessment of the evidence, using a critical eye, in order to decide whether the opposing party has evidence of sufficient quality and weight to be able to succeed at trial (per Finkelstein J), with a view to determining whether there [is] a real issue of fact or a real issue of law capable of being decided in [that party’s] favour (per Rares J). In doing so, the Tribunal must draw all reasonable inferences — but only reasonable inferences — in favour of [that] party (per Gordon J). In conducting this enquiry, the Tribunal must give particular weight to the expert medical evidence as it stands at the time it considers the exercise of the s 42B power: Wuth.
The High Court’s discussion in Spencer of the Federal Court’s parallel power to dismiss in s 31A of the Federal Court Act is particularly instructive. The plurality distinguishes no real prospect from no reasonable prospect; the evaluative threshold of which is lower than the former. Similarly, their Honours consider that the assessment of a matter having no reasonable prospect under s 31A is not the equivalent of determining that a matter is hopeless or bound to fail. A less stringent test is required. Although these words do not appear in s 42B, I think it is clear from their Honours’ judgement that s 31A and s 42B share this characteristic. French CJ and Gummow J remind the Tribunal that the power to summarily terminate proceedings must always be attended with caution. If the Tribunal discerns a “real” as distinct from “fanciful” prospect of success, the power should not be exercised.
Ms Oliver urged the Tribunal to adopt the test in Kanan, per Wilcox J at 264-265:
But where it appears that, on the applicant's own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.
Putting aside that Wilcox J was there considering a legislative provision which was not closely analogous to s 31A or s 42B, it seems to me a mistake to view his Honour’s words as prescribing the test of no reasonable prospect, or words of similar import. Rather, it is apparent that his Honour was providing an example of one set of circumstances where it could be said that a proceeding lacked reasonable cause. That particular set of circumstances is immaterial in the present case.
Nor is the Tribunal’s decision in Filsell useful in the present enquiry, given its reliance on cases such as General Steel; the High Court majority in Spencer made it clear (at [56] and [60]) that such decisions refer to a different legislative regime, as did Gordon J in Jefferson Ford (at [124]).
Turning to the facts of this case, it is fair to describe the evidence underpinning Ms Oliver’s claim for a compensable right limb injury as weak. There is little or no objective evidence of damage or abnormality in her right limb. All the available x-ray and ultrasound evidence supports that observation. There is empirical evidence of some abnormality in her right limb occurring several years before the alleged date of injury. Ms Oliver has, however, reported to a number of doctors and health specialists that she feels pain and experiences restricted movement in the limb. Based on this evidence as it stood in April 2018, I conclude that she enjoys some prospect of establishing at a hearing that she suffers a medical condition of her right limb. I consider that this outcome is quite possible, though not probable.
The next question to consider is her likelihood of establishing that any condition from which she suffers bears the necessary relationship with employment prescribed under the Act. I consider the prospect of her establishing that nexus to be very remote. There is no evidence that she has suffered an injury that would satisfy the requirements of s 5A. There is some evidence that her employment may have contributed, to a significant degree, to her condition pursuant to s 5B, but in this respect the expert medical evidence, to which the Tribunal must give particular attention, weighs heavily against her claim.
Dr Thai considered that there were no employment-related factors identified as contributing to her right posterior shoulder pain. He opined that the symptoms she experienced would have developed in any event. He also considered that it would be difficult to argue that her symptoms related to her favouring the right arm.
Prof Youssef considered that Ms Oliver did not have an ailment of the right upper limb, and he could find no abnormality there. He noted that right shoulder girdle pain did develop but that occurred while Ms Oliver was on maternity leave and not at work. He concluded that there was no objective evidence of a physical disorder to her limb, and that her employment did not contribute significantly to any abnormality.
The medical evidence suggesting employment-related causation is much more tenuous. A physiotherapist and an occupational therapist note that Ms Oliver attributes right arm and shoulder pain to compensating for the left limb injury, but do not themselves make a clinical conclusion to that effect. Dr Le Leu, in his report of 1 December 2016, merely refers to her right shoulder playing up, which he notes she – Ms Oliver – attributes to overusing that side. He does not offer a diagnosis, nor does he offer a finding as to causation.
The evidence already referred to is contained in the T-documents filed by Comcare. The Tribunal is entitled to assess the strength of Ms Oliver’s case based on that material: Novosel v Comcare [2017] FCA 722 at [115]. Ms Oliver has not filed any medical evidence in support of her compensation claim, and indicated during the interlocutory hearing that she does not intend to do so.[2] This is not a case of the kind referred to the Tribunal in Filsell where the parties may not have submitted, or may not be in a position to submit, all of the lay or medical evidence that might be available in relation to the proceedings – it is a case of the applicant having no present intention to submit any further evidence. It is of course her prerogative to lead, or to leave aside, whatever evidence she wishes, but a decision not to lead supporting medical evidence in a case such as this is a factor the Tribunal must weigh up in assessing the reasonable prospects of her succeeding.
[2] The Tribunal was told that she could not afford to obtain medical evidence, and indeed an application was made to the Tribunal that, in the event Comcare’s s 42B application for dismissal failed, it not list the right limb claim for hearing until after the other matters before the Tribunal were heard and determined. The argument advanced here was that a successful outcome on those other matters would provide Ms Oliver with the finance to obtain medical evidence in relation to her right limb condition. The Tribunal would have declined to so arrange the hearing of these matters had this been the outcome of the s 42B application; it does not consider it appropriate in general to manage its hearing schedule based on the financial exigencies of parties.
Surveying the evidence which is presently before the Tribunal, and which is likely to be before it at a hearing, it must be concluded that Ms Oliver’s prospects of success on the issue of employment-related causation are dim. Uncontradicted medical opinion from qualified experts denying a connection with employment would normally prove fatal to a claim of this kind. An applicant’s self-assessment of that connection would rarely displace such opinion.
Theoretically, it is possible that the firmly-expressed opinions of Dr Thai and Prof Youssef, as expressed in their written reports, might yet dissolve into hesitation or doubt at a hearing. It is conversely possible that Dr Le Leu may venture a firm and authoritative opinion about causation in the witness box which is not evident in his already-filed written report. But the Tribunal is not required to elevate such possibilities to the level where they create the hope that a conspicuously fragile case might acquire unexpected strength. The Tribunal must take the evidence as it presently finds it in making its assessment of whether it has a reasonable prospect of success. In that context, it must be said that Ms Oliver’s prospects of success are more fanciful than real, to use the language of French CJ and Gummow J in Spencer (at [25]).
On the basis of this assessment, I consider that Ms Oliver’s case meets the test variously described in Jefferson Ford and Spencer of an application with no reasonable prospect of success. In particular, I conclude Ms Oliver does not have evidence of sufficient quality and weight to succeed at a hearing in establishing the necessary connection between her injury and her employment.
Counsel for Ms Oliver submitted that the Tribunal should take into account the infancy of the proceedings in refusing to dismiss them. It was said that the failure by the parties to submit a statement of facts, issues and contentions should indicate that the issues were insufficiently well-developed to permit an assessment of Ms Oliver’s prospects of success. However, in the absence of any intention by Ms Oliver to file further medical evidence, it is difficult to see how a fresh formulation of the existing material would alter the conclusion to which the Tribunal is now drawn.
CONCLUSION
Pursuant to s 42B, I dismiss Ms Oliver’s application in matter 2017/3257 as I am satisfied that it has no reasonable prospect of success.
I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries
........................................................................
Associate
Dated: 29 June 2018
Date(s) of hearing: 27 April 2018 Date final submissions received: 27 April 2018 Counsel for Ms Oliver: Mr Karl Pattenden Solicitors for Ms Oliver: Mr Sebastian Marquez, Canberra Legal Group Counsel for Comcare: Mr Peter Woulfe Solicitors for Comcare: Ms Shery William, Comcare Legal
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