Rimmer and Comcare (Compensation)

[2024] AATA 3387

Rimmer and Comcare (Compensation) [2024] AATA 3387 (12 September 2024)

Division:GENERAL DIVISION

File Number:          2022/0747

Re:Susannah Rimmer

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:12 September 2024

Date of written reasons:        24 September 2024

Place:Hobart

Pursuant to ss 42A(5)(a) and (b) of the Administrative Appeals Tribunal Act 1975, the application is dismissed because the applicant has failed within a reasonable time to proceed with the application or comply with directions of the tribunal in these proceedings.

...................................[signed].....................................

Senior Member D. J. Morris

Catchwords

PRACTICE AND PROCEDURE – where applicant sought review of decision to deny liability under workers compensation law – where applicant given several extensions of time to lodge documents – where applicant lodged documents late – where hearing vacated to allow further time for respondent to consider late evidence – where solicitor for applicant went on unplanned leave – where directions of tribunal not complied with – where applicant sought further adjournment to obtain additional medical report – where no indication of when medical report would be provided – objective of tribunal – matter dismissed on two grounds – failure to progress matter in reasonable time – failure to comply with directions of tribunal – oral decision – written reasons provided

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Negri v Secretary, Department of Social Services [2016] 70 AAR 103

Secondary Materials

Administrative Appeals Tribunal; Guide to the Workers’ Compensation Jurisdiction; issued by the Hon. Justice Duncan Kerr, President, on 14 July 2015

REASONS FOR DECISION

Senior Member D. J. Morris

24 September 2024

1. Ms Susannah Rimmer is the Applicant in this matter. She applied to the Tribunal for review of a decision dated 21 January 2022 affirming a determination dated 3 December 2021 that there was no liability to pay compensation under s 14 of the Safety, Rehabilitation andCompensation Act 1988 (‘the SRC Act’) in respect of the condition of “‘delusional disorder and major depressive disorder’ or aggravation thereof”. The review officer was satisfied that the Applicant did not suffer from a psychiatric ailment, or an aggravation of such an ailment, to which her employment contributed to a significant degree, for the purposes of the definition of disease in s 5B of the SRC Act.

2. The questions before the Tribunal were:

   (a)whether the Applicant suffered from a disease, being an ailment or an aggravation of such an ailment, within the meaning of s 5B of the SRC Act;

   (b)if so, whether the ailment was contributed, to a significant degree, by the Applicant’s employment with the Commonwealth of Australia, so as to constitute a disease within the meaning of ss 5B and 14 of the SRC Act;

   (c)if the Applicant suffered from a disease, the appropriate diagnosis of that disease; and,

   (d) the date of injury for the purposes of s 7(4) of the SRC Act.

   HEARING

3. On 12 September 2024, the Tribunal held an interlocutory hearing by telephone in this matter because of the non-compliance of the Applicant with directions of the Tribunal. Before the interlocutory hearing, the Respondent made written submissions that the matter be dismissed under s 42A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) on two bases – that the Applicant had failed within a reasonable time to proceed with her application and failed, within a reasonable time, to comply with a direction made by the Tribunal in relation to the application.

4. Ms Claire Humphries of Slater & Gordon Lawyers represented the Applicant. The Respondent was represented by Ms Naomi Richards, a senior lawyer of The Australian Government Solicitor. After hearing submissions from both parties, the Tribunal made an oral decision to dismiss the application under ss 42A(5)(a) and (b) of the AAT Act and advised that short written reasons would be provided. Later that day, the notice of dismissal was sent to the parties. On 19 September 2024, the Applicant’s solicitors formally sought written reasons.

5. In Negri v Secretary, Department of Social Services (2016) 70 AAR 103 (‘Negri’), Bromberg J considered a matter before the Tribunal where an oral decision had been given and a statement of written reasons subsequently provided. In considering the extent to which the Tribunal could edit or elaborate its oral reasons when producing written reasons, His Honour said at [27]:

   … as long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).

6. In preparing these written reasons, I am satisfied that they reflect the short oral reasons given on 12 September 2024 when I advised that written reasons would be provided.  Consistent with the approach suggested in Negri, new reasoning for the decision to dismiss the application has not been introduced, but I have included more detail of the history of this matter, which was largely contained in the Respondent’s submissions dated 12 September 2024. The Applicant did not suggest that history was not factually correct.

   HISTORICAL BACKGROUND

7. On 7 October 2021, the Applicant lodged a claim for compensation with her employer for severe anxiety and PTSD owing to ‘Cyber vulnerability escalated to TL and EL1 [on] 21.5.21 which appears to have been handled as Public Interest Disclosure under the PID Act with no guidance from supervisor or Services Australia’.

8. On 3 December 2021, the Respondent denied liability for the compensation claim. The Respondent submitted that, based on specialist medical advice, the condition was found to be a ‘delusion disorder and major depressive disorder’ which was not contributed to the requisite degree, in the Respondent’s contentions, by her employment.

9. On 21 January 2022, a reviewable decision was made which affirmed the denial of liability.

10. On 31 January 2022, the Applicant lodged an application with the Tribunal for review of that decision.

11. On 14 March 2023, a conciliation conference was held but the matter was not resolved. The Respondent lodged a further medical report with the Tribunal on 18 July 2023.

12. On 5 September 2023, the Applicant wrote to the Tribunal setting out a proposed timetable for the matter to be listed for substantive hearing. On 25 September 2023, the Tribunal made directions requiring parties to provide hearing certificates by 6 October 2023, for the Applicant to provide a Statement of Facts, Issues and Contentions (‘SFIC’) by 13 October 2023, and for the Respondent to lodge a SFIC by 3 November 2023.

13. The Applicant lodged hearing certificates in compliance with the direction advising that the Applicant would be calling two witnesses, the Applicant and Dr Duke, psychiatrist.

14. On 13 October 2023, the Applicant sought an extension of time of two weeks to lodge her SFIC. That was granted. 

15. On 17 October 2023, the matter was listed for substantive hearing on 7 and 8 February 2024. On 30 October 2023, the Applicant sought a further extension of time to lodge her SFIC by 6 November 2023. That was granted.  On 6 November 2023, the Applicant sought a further extension of time to lodge her SFIC by 14 November 2023. The Respondent was given until 28 November 2023 to lodge its SFIC.

16. On 7 November 2023, the Applicant’s SFIC was lodged; the Respondent lodged its SFIC on 28 November 2023.

17. On 12 December 2023, the Applicant requested that the matter have a third hearing day on 6 February 2024 because she intended to call an additional medical expert witness. The Tribunal was unable to accommodate that request, so the hearing was vacated.

18. On 6 March 2024, the matter was relisted for substantive hearing on 23, 24 and 25 July 2024.

19. On 4 July 2024, the Applicant advised that she intended to call two expert medical witnesses, Dr Benjamin Duke and Dr Michael Evenhuis, both psychiatrists. No report from Dr Evenhuis had been lodged before that date.

20. On 9 July 2024, the Respondent requested a copy of the report of Dr Evenhuis. The Respondent also asked whether a further witness statement from the Applicant was likely to be lodged so it was not taken by surprise when the Applicant gave evidence.

21. On 22 July 2024 at 5.20 pm – the day before the first day of the substantive hearing – the Applicant lodged a witness statement of nine pages from Ms Rimmer with 48 pages of attachments, some of which had been provided to the Tribunal and the Respondent earlier, but not all of it.

22. On 22 July 2024, the Respondent emailed the Tribunal and the Applicant’s solicitor objecting to the Tribunal taking into consideration the Applicant’s witness statement dated 22 July 2024 and its annexures. The Respondent noted that the matter had been on foot since 31 January 2022 and that the Applicant had a sufficient opportunity to lodge documents on which she intended to rely. The Respondent also noted that the lodgement of the additional documents on the evening before the hearing was inconsistent with the Guide to the Workers’ Compensation Jurisdiction, which requires evidence to be disclosed 28 days before the hearing date, and also noted the provisions of s 66 of the SRC Act.

23. If the Tribunal allowed the witness statement and annexures to be admitted, the Respondent requested an adjournment to investigate the matters set out in the Applicant’s statement, including her version of events which had occurred in the workplace.

    HEARING COMMENCES – 23 JULY 2024

24. On 23 July 2024, the substantive hearing commenced, as previously advised to parties. The Applicant was represented by Mr Brian Hilliard of counsel, instructed by Ms Danielle Moran, solicitor of Slater and Gordon. The Respondent was represented by Mr Peter Woulfe of counsel, instructed by Ms Naomi Richards.

25. The Tribunal noted that the Applicant had lodged documents late the previous afternoon and that the Respondent objected to that. The Tribunal noted its regret that scheduling directions had not been previously made in relation in relation to late submissions.

26. Mr Hilliard said that the purpose of the Applicant’s 22 July 2024 written statement was to assist the Tribunal because the Applicant was quite affected by her medical conditions, and it was considered that a written statement was the best way to communicate evidence, as an addition to, not in substitution for, oral evidence. Mr Hilliard said that on reflection he agreed with the Respondent that the statement and annexures did introduce some new material and agreed that an adjournment of the hearing was appropriate.

27. Mr Woulfe submitted that it would prejudice the Respondent if the 22 July 2024 written statement and annexures were admitted, and the hearing then proceeded.

28. Mr Woulfe proposed that within 28 days the Applicant lodge any further evidence on which she intends to rely and within 21 further days the Respondent will advise the Tribunal of a timetable, to be agreed between the parties, if possible, for the provision of its further evidence. Mr Hilliard said he agreed with this course of action.

29. The Tribunal then made directions that the Applicant lodge any further evidence by 20 August 2024 and the Respondent lodge a proposed timetable by 10 September 2024. Both parties consented to these dates.

30. The Applicant did not comply with this direction and did not otherwise advise the Tribunal. The Respondent submitted that, on 22 August 2024, it inquired of the Applicant’s solicitors whether further evidence would be required and whether the Applicant would be seeking an extension of time from the Tribunal to comply with the direction.

31. On 23 August 2024, a solicitor for the Applicant advised the Respondent that the solicitor with carriage of the matter was on unplanned leave and she expected to be in a position to advise of next steps by 30 August 2024. This advice was not received by the Tribunal.

32. On 5 September 2024, the Respondent requested that a non-compliance directions hearing be convened. The parties were sent listing notices for a directions hearing on 12 September 2024.

33. On 11 September 2024, Ms Humphries, from the Applicant’s solicitors, wrote to the Tribunal. She explained that she was assisting another solicitor who had to take unexpected leave. Ms Humphries advised the following:

    By way of update, I have encountered difficulties in arranging an updated report with Dr Benjamin Duke, who assessed the Applicant in May 2022. Dr Duke’s rooms have advised the doctor has no availability for the remainder of the year, and have been unable to provide me with particulars of the next available 2025 appointment. I am advised bookings will likely become available within 4-6 weeks. Please refer to the attached correspondence of Medilaw which confirms their inability to schedule further appointments with Dr Duke in 2024.

    In the circumstances, I respectfully request an extension of time to 30 October 2024 in order to provide the particulars of the appointment arranged with Dr Duke.

34. Attached to Ms Humphries’ email was advice from Medilaw dated 11 September 2024 which relevantly said:

    Unfortunately, Dr Duke is fully booked for 2024 and has not yet released dates for 2025. As he is on leave until the start of October, these dates may not be released until some time [sic] after then. Your request has been placed on the waitlist and we will be in touch as soon as we have an update.

35. The email then contained a reference to Ms Rimmer being the client (i.e. the patient) and the referrer being Slater and Gordon.

    DIRECTIONS HEARING – 12 SEPTEMBER 2024

36. At the directions hearing, Ms Humphries advised that she had encountered difficulties in arranging an appointment for the Applicant to see Dr Duke, and that she had been informed by Medilaw that Dr Duke was likely to open his books for 2025 by the end of October.

37. The Tribunal inquired why it was necessary that the Applicant again see Dr Duke. The Applicant responded that Dr Duke saw her in May 2022 and although they could engage another independent medical examiner, Dr Duke is aware of the Applicant’s history.

38. The Tribunal asked why the deadline of 20 August 2024, set out in the Tribunal’s direction of 23 July 2024, had not been complied with. Ms Humphries referred to the solicitor with carriage of the matter being unwell and another solicitor in the firm being on leave. Ms Humphries said the direction had not been ‘diarised’ and once she became aware of procedural delays, she had taken steps.

39. The Tribunal noted that, when the dates had been suggested at the convened hearing, both counsel, including Mr Hilliard for the Applicant, had agreed that the dates were appropriate and made the point that the Tribunal’s direction was not written in isolation, but with the agreement of the parties.

40. The Tribunal noted that 17 September 2024 had been previously scheduled to set down substantive dates for the (resumed) substantive hearing. Ms Humphries told the Tribunal that no discussion had been held between the parties on timetabling yet.

41. The Tribunal noted that the Respondent had been unable to comply with its obligations in the 23 July 2024 direction, because of the inaction of the Applicant.

42. Ms Humphries said that, once the matter had been handed to her, she had met with the Applicant and sought instructions on a way forward, and she was working to get the matter back on track for a hearing early in 2025.

43. In regard to the need for a further report from Dr Duke, the Respondent submitted that as the issue before the Tribunal is causation, it does not go to the current functionality of Ms Rimmer, only her functionality at the time of the claimed injury, and so a current assessment would not assist in the determination of that question by the Tribunal.

44. The Tribunal said it appreciated the points made by the Applicant about the unexpected illness of the original solicitor but noted that there were many opportunities nonetheless to make other arrangements, or to advise the Tribunal before 11 September, the eve of the non-compliance hearing.

45. The Tribunal noted that the Applicant had ignored the directions of the Tribunal and failed to proceed in reasonable time with the application. The Tribunal then advised the parties that, because of the several breaches of ss 42A(5)(a) and (b) of the AAT Act, that the application would be dismissed. The Tribunal noted that the matter had now also come into the compass of offending against the objective of the Tribunal as set out in s 2A of the AAT Act.

    CONSIDERATION

46. Section 66 of the SRC Act provides:

    (1)Where:

    (a)a claimant who has instituted proceedings under this Part seeks to adduce any matter in evidence before the Administrative Appeals Tribunal in those proceedings; and

    (b)the claimant had not disclosed that matter to the Tribunal at least 28 days before the day fixed for the hearing of those proceedings;

    that matter is not admissible in evidence in those proceedings without the leave of the Tribunal.

    …

47. In addition, the Tribunal’s Guide to the Workers’ Compensation Jurisdiction relevantly states, at section 4.3:

    Documents or other material not disclosed to the AAT

    As noted in section 4.2, you must seek leave to present evidence in relation to any matter that was not disclosed to us at least 28 days before the hearing date. The decision-maker must also seek leave at the hearing to rely on any material that has not been disclosed to us and you prior to the hearing.

48. The Tribunal is not incognizant of the challenges legal representatives may have in dealing with, and seeking instructions from, a client who may have a vulnerable medical condition. That is something that fairly is taken into account. But there was no submission put to me that there had been difficulty obtaining instructions from Ms Rimmer.

49. The Tribunal is also generally reluctant to treat something like the unexpected illness of a legal representative as a factor that results in a detriment to an applicant. However, in this case the Applicant was represented by a major national firm, and it was well within the competence of the Applicant’s solicitors to redeploy the work, which it eventually did. But apparently there was then a failure to ‘diarise’ the Tribunal’s clear direction. This was with the backdrop of a very late and voluminous submission of the Applicant being delivered to the Tribunal and the Respondent after working hours on the day before the substantive hearing, which had been well known to parties and which had previously been vacated. That led to the abandonment of the hearing, at substantial inconvenience to both parties, and some to the Tribunal.

50. It is also necessary, to repeat, that the directions made by the Tribunal were settled in front of the representatives of the parties: they were not dates determined by the Tribunal itself. Therefore the non-compliance by the Applicant is more serious.

51. The Tribunal accepts that there can be valid reasons why parties are sometimes unable to comply with directions, with the best will in the world. But in such a case, especially when an applicant is legally represented, the expectation is that the party which realises it cannot comply notifies the Tribunal and the other party in good time before the deadline in the direction occurs, so that amending directions can be made. That did not happen in this case.

52. Added to that was the very late decision of the Applicant’s representatives to, the day before the non-compliance hearing, decide to contact Dr Duke’s rooms seeking an appointment for a further report. No previous advice had been given to the Tribunal or the Respondent that this was in contemplation. When the Applicant requested yet another further delay, it was in the prospect not of obtaining an appointment and an updated medical report from Dr Duke as an expert witness, but only in terms of trying to secure advice about a date for an appointment at least three or four months hence. When that appointment might be, and when Dr Duke would be able to provide any fresh report, was not stated.

1. The Tribunal expects its directions to be complied with, especially when parties are represented by competent solicitors and counsel, as was the case here. The Tribunal also has a statutory objective to provide a mechanism for review that is, amongst other things, ‘fair, just, economical, informal and quick’ (see s 2A(b) of the AAT Act). That objective is not met when there has been a history of extensions of time, late submissions, an adjourned hearing, an abandoned hearing, and then non-compliance with a direction, no advice initially and then late advice to the Tribunal, and a desire to push the matter off to a time indeterminate some months away, after an additional medical report (which arguably may not be essential to the matter in review) might be able to be provided.

2. Owing to the history of the matter, as set out in these written reasons, and having heard submissions from both parties, the Tribunal formed the view that the application brought to the Tribunal on 31 January 2022 should be dismissed for the failure of the Applicant to (a) comply with directions made by the Tribunal within a reasonable period of time and (b) proceed with the review.

3. If the parties consider that an application has been dismissed in error, it is open to either of them to apply to the Tribunal for reinstatement of the proceeding (see s 42A(10) of the AAT Act).

   DECISION

4. Pursuant to ss 42A(5)(a) and (b) of the AAT Act, the application is dismissed because the applicant has failed, within a reasonable time, to proceed with the application or comply with the directions of the tribunal in these proceedings.

I certify that the preceding 56 (fifty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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

Associate

Dated: 24 September 2024

Date of hearing:	12 September 2024
Advocate for the Applicant:	Ms Claire Humphries
Solicitors for the Applicant:	Slater & Gordon Lawyers
Advocate for the Respondent:	Ms Naomi Richards
Solicitors for the Respondent:	The Australian Government Solicitor