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

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.
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
On 12 September 2024, the Tribunal held an interlocutory hearing by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rimmer and Comcare (Compensation)

Details

AGLC: Rimmer and Comcare (Compensation) [2024] AATA 3387
Case: [2024] AATA 3387
Decision Date: 12 September 2024

CaseChat Overview and Summary

This matter concerned an application for review of a decision by Comcare to deny liability for a compensation claim lodged by the applicant, Ms Rimmer. The applicant sought compensation for severe anxiety and Post-Traumatic Stress Disorder, alleging it arose from a cyber vulnerability incident handled by her employer. Comcare denied liability, relying on specialist medical advice that the condition was a delusion disorder and major depressive disorder not contributed to by employment to the requisite degree. The Administrative Appeals Tribunal (AAT) was required to determine whether to uphold Comcare's denial of liability.

The central legal issues before the Tribunal were whether the applicant had failed to progress her application within a reasonable time and whether she had complied with the directions of the Tribunal. The Tribunal also considered the objective of the AAT Act, specifically section 2A, which mandates the just, quick, and inexpensive resolution of matters. The Tribunal had to assess the impact of repeated requests for extensions, the late lodgement of documents, and the eventual vacation of a substantive hearing.

The Tribunal reasoned that the applicant had repeatedly failed to comply with its directions and had not proceeded with her application in a reasonable timeframe. This failure was compounded by the fact that the directions were settled in front of the parties' representatives, making non-compliance more serious. The Tribunal noted that while it acknowledged the challenges legal representatives might face with clients experiencing vulnerable medical conditions, there was no submission that instructions had been difficult to obtain. Furthermore, the Tribunal found that the unexpected leave of the applicant's solicitor, while a factor, did not excuse the failure to manage the workload, especially given the applicant was represented by a major national firm. The Tribunal concluded that the applicant's conduct had contravened the objectives of the AAT Act.

Consequently, pursuant to sections 42A(5)(a) and (b) of the AAT Act, the Tribunal dismissed the application on the grounds of failure to proceed within a reasonable time and failure to comply with the Tribunal's directions.

Orders

Orders of the court

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Background

Background to the litigation

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 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’. 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. On 21 January 2022, a reviewable decision was made which affirmed the denial of liability. On 31 January 2022, the Applicant lodged an application with the Tribunal for review of that decision. 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. 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. 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. On 13 October 2023, the Applicant sought an extension of time of two weeks to lodge her SFIC. That was granted. 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. On 7 November 2023, the Applicant’s SFIC was lodged; the Respondent lodged its SFIC on 28 November 2023. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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.

Ratio Decidendi

Legal Principle Established

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 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.… 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 AATAs 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. 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. 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. 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. 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.