Rose and Comcare
[2017] AATA 790
•30 May 2017
Rose and Comcare [2017] AATA 790 (30 May 2017)
Division:GENERAL DIVISION
File Number(s): 2017/1609
Re:Nancy Rose
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Mr S. Webb, Member
Date:30 May 2017
Place:Canberra
Operation and implementation of Comcare's 15 March 2017 reviewable decision in application 2017/1609 is stayed for the duration of these proceedings, subject to further order.
.............................[sgd]...........................................
Mr S. Webb, Member
PRACTICE AND PROCEDURE – compensation – reconsideration decision overturning original acceptance of liability for injury – request for stay – effect of decision – utility of staying implementation – relevant factors – prospects of success - interests of those affected - consequences for the parties – effect on the application for review – stay granted
Administrative Appeals Tribunal Act 1975, s 41, 43
Safety, Rehabilitation and Compensation Act 1988, s 4, 7, 14, 16, 19, 60, 62, 69, 72, 114
Australian Pesticides and Veterinary Medicines Authority v Administrative Appeals Tribunal [2008] FCA 1393
Australian Postal Corporation v Oudyn [2013] FCA 318
Canute v Comcare [2006] HCA 47 at [8]
Cheung v Administrative Appeals Tribunal [2009] FCA 241
Duong v Australian Postal Corporation [2005] FCA 991
Ertan v Hurford [1986] FCA 131
Hanna v Australian Postal Corporation [1990] FCA 153
Kennedy v Administrative Appeals Tribunal [2008] FCAFC 124 at [22]
Lees v Comcare [1999] FCA 753
Minister for Immigration v Ahmed [2005] FCAFC 58
Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374
Re Rose and Comcare [2013] AATA 735
Re Liu and Comcare [2004] AATA 617 at [3]
Re Scott and Australian Securities and Investments Commission [2009] AATA 798 at [4]; Re Wirski & Comcare [2016] AATA 461
Re Scott & Australian Securities Investment Commission (2009) AATA 798
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87REASONS FOR DECISION
Mr S. Webb, Member
30 May 2017
This case has a rather long and somewhat convoluted procedural history stemming from a compensation claim Nancy Rose made in 2008 in respect of a psychiatric illness. Initially, Comcare accepted that Ms Rose had a compensable injury and paid her amounts of compensation.
Subsequently, Comcare reversed its acceptance and, in a reviewable decision, revoked the original determination to accept liability for an injury. Ms Rose applied for review. In the course of the resulting proceedings in 2013, the parties agreed upon terms that were given effect by consent decisions of the Tribunal.
By these decisions, Comcare was liable to pay compensation to Ms Rose for two injuries in the form of –
(a)“generalised anxiety disorder sustained on 8 December 2006”[1] (application 2013/4613); and
(b)“aggravation of fibromyalgia sustained on 5 May 2007”[2] (application 2013/1371).
[1] T3.
[2] T4.
Consequently, Comcare paid further amounts of compensation to Ms Rose in respect of these injuries.
Presently, Ms Rose has applied for review of Comcare’s reviewable decision to limit payment of compensation for psychological treatment (application 2016/1182). The application was listed for hearing.
Prior to the hearing, on 15 March 2017, Comcare issued a further reviewable decision revoking the consent decisions resulting from the 2013 proceedings. Ms Rose applied for review of this reviewable decision (application 2017/1069[3]) and sought adjournment of the hearing so that both applications could be dealt with together. Comcare agreed. I acceded to this request and stood the hearing over for relisting at the earliest convenient date.
[3] For ease of reference, I will refer to documents filed under s 37 of the Administrative Appeals Tribunal Act 1975 in this application as ‘AT’ documents.
On 22 March 2017, Ms Rose requested a stay order in the following terms –
“To stay the termination of incapacity payments until the outcome of the Application for Review of the decision.
That if the Applicant’s payments under the Act are terminated she will suffer significant hardship.”
It is Ms Rose’s request for a stay, alone, that now arises for consideration and decision.
In the course of the hearing of the stay request, Mr Richards, counsel for Ms Rose, varied the terms of her request such that it applied to operation or implementation of the reviewable decision in application 2017/1609. I will proceed on that basis.
The reviewable decision that is the subject of the stay request is in the following terms –
“Two consent decisions of the Administrative Appeals Tribunal, published on 23 January 2014, accepted liability for ‘generalised anxiety disorder’ and ‘aggravation of fibromyalgia’. Pursuant to Hanna v Australian Postal Corporation (1992) 12 AAR 511, Comcare may reconsider Tribunal decisions.
I therefore revoke the two decisions dated 23 January 2014. In their place, I determine that Comcare is not liable to compensate your for those injuries.”[4]
[4] T18 folio 96.
At this point it is desirable to note that under s 62 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), Comcare has power to reconsider a ‘determination’. Section 62(5) provides that –
(5) Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.
The word ‘determination’ is given meaning by s 60(1), and it does not include a decision made under s 62 or, on review by the Tribunal, under s 64. Nevertheless, s 60(1) gives the word ‘decision’ the same meaning as under the Administrative Appeals Tribunal Act 1975 (the AAT Act). From this it follows that the Tribunal’s decision on review is to be taken as a ‘decision’ for the purposes of the SRC Act. This is synchronous with the operation of s 43(6) of the AAT Act, which provides –
(6) A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.
[Emphasis added]
Thus, in Ms Rose’s case, the consent decisions the Tribunal made on 23 January 2014, were made in substitution of the reviewable decisions that were set aside. In the first of these reviewable decisions, made on 21 March 2013, the decision maker said “I have decided to affirm the determination of 13 February 2013 [sic – that] denied liability for chronic pain syndrome under s 14 of the SRC Act”.[5] The second reviewable decision was made on 12 September 2013. The decision maker said –
“I revoke the initial determination dated 29 November 2008.
In view of the evidence, I am satisfied that you sustained a psychological ailment, which was significantly contributed to by you employment, However, I find that the circumstances of your claim fall within the exclusionary provisions of the Act.”[6]
[5] AT46 folio 268.
[6] AT52 folio 298.
Thus, as can be seen, the first reviewable decision left in place the primary determination, whereas the second reviewable decision revoked the primary determination. There is a question, which has not yet be argued, in respect of the second reviewable decision whether the Tribunal’s consent decision replaces the original determination that was revoked on reconsideration, or simply replaces the reviewable decision by which it was revoked – the consent decision expressly sets aside the revocation decision and makes a fresh decision in place of it, rather than restoring the original determination.
The sharp point is whether the consent decision is within the scope of s 60 of the SRC Act and, if not, whether s 62 gives Comcare power to reconsider it. I will go no further with this than noting that the clear statement of binding principle Davies J set out in Hanna v Australian Postal Corporation[7] arose in circumstances in which the Tribunal had varied a primary determination, on review. The extent to which this principle applies and the way in which s 43(6) of the AAT Act operates with respect to s 60 of the SRC Act in circumstances where a primary determination has been revoked on reconsideration and the revocation decision is substituted by a decision of the Tribunal, is a matter for further consideration when construing s 62 of the SRC Act and s 43 of the AAT Act.
[7] [1990] FCA 153 at [9] - [11].
However that issue is decided, even if Comcare’s reviewable decision in application 2017/1609 is flawed by want of power or other legal error (and I make no such finding), the Tribunal has jurisdiction and power to review it – application for review of a purported reviewable decision is sufficient to enliven the Tribunal’s jurisdiction unless the decision has been found to be invalid by a court.[8] Furthermore, absent such a ruling or statutory bar,[9] as here, there is no bar upon exercise of the Tribunal’s discretionary power to grant a stay in respect of the putative decision.
[8] Kennedy v Administrative Appeals Tribunal [2008] FCAFC 124 at [22]; Minister for Immigration v Ahmed [2005] FCAFC 58 at [33].
[9] Australian Pesticides and Veterinary Medicines Authority v Administrative Appeals Tribunal [2008] FCA 1393
Furthermore, the Tribunal has discretion to treat a previous decision made on review of a reviewable decision, including one made by consent, as determinative, or to disregard it, when considering the same issue on subsequent review of a different reviewable decision;[10] -
“The Tribunal is not excluded from revisiting and making its own findings on questions of fact that have been the subject of findings by a prior Tribunal in an application to review a different reviewable decision. Until the subsequent decision is made, the earlier decision remains in operation.
…
Further, the 2001 Tribunal decision was not “a relevant consideration” in the sense that it was not required by the legislation to be considered, either expressly or by implication.”[11]
[Citations omitted]
[10] Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 at 390.
[11] Cheung v Administrative Appeals Tribunal [2009] FCA 241 at [62] and [67].
This discretion is not limited to circumstances in which a claimant’s medical condition has changed, and it extends to include whether the claimant’s condition was ever causally related to the particular employment.[12] Although not presently in issue, the Tribunal’s capacity to determine such matters and to respond to evolving circumstances in respect to the existence of an ‘injury’ has been authoritatively decided.[13]
[12] Ibid. at [50]-[54].
[13] Telstra Corporation Ltd v Hannaford [2006] FCAFC 87.
Comcare says that there is no utility in staying operation or implementation of the reviewable decision in application 2017/1069. The decision revokes Comcare’s liability under s 14 of the the SRC Act and it does not result in any payment of compensation – payment requires a claim to be made out under specific heads of compensation set out in Part II of the SRC Act. Furthermore, it does not prevent Ms Rose from making further claims for compensation.
While these points are correct, the simple flaw in this argument about utility is that, while ‘liability under s 14’ “is a shorthand reference to the primary determination of the existence of a compensable injury which is a necessary, but not a sufficient, condition for the payment of compensation”,[14] the conception of ‘an injury’ is “of pivotal importance in the structure of the Act”[15] to which payment of compensation is unseverably tied - without ‘an injury’, compensation cannot be paid. Clearly enough, s 14 is something of a gateway provision, with passage being dependent upon each of the five elements identified by the Full Court in Lees v Comcare[16] at [35] being established.
[14] Re Liu and Comcare [2004] AATA 617 at [3].
[15] Canute v Comcare [2006] HCA 47 at [8].
[16] [1999] FCA 753.
Comcare argues, correctly, that a positive determination under s 14 does not, of itself, result in payment of compensation. It is quite clear that liability determined under s 14 is limited by other provisions set out in Part II of the Act, dealing with particular heads of compensation. But it does not follow that a determination under s 14 is without effect or consequence for a claimant. A negative s 14 determination denies the existence of an ‘injury’ and effectively bars payment of compensation under the SRC Act.
Reconsideration of a s 14 determination involves deciding whether each of the essential preconditions to establish threshold liability for an ‘injury’ under claim are made out as of the date of the determination or claim.
At this point it is convenient to observe that the SRC Act does not make any provision expressly specifying when a decision revoking an earlier determination takes effect. On this point there is a question whether the revocation decision takes effect on the day it is made, leaving untrammelled what was done before while the determination was in force, or if revocation of a s 14 determination has effect from the date of the determination being revoked, thereby affecting decisions made consequent to the determination while it was in force.
The issue was authoritatively decided by Cooper J in Australian Postal Corporation v Oudyn[17] -–
32 The power of APC to reconsider a determination under s 62 of the Act, when exercised in relation to a determination made under s 14, is a power limited to a reconsideration of one or more of the elements identified by the Full Court in Lees. A determination on reconsideration that one or more of the elements did not exist is a determination that there was at no time a liability under s 14 of the Act to pay compensation for the particular injury. The position is different to, and to be contrasted with, the situation where a benefit is being paid under a particular section, in consequence of a determination having been made under s 14.
…
34 APC cannot bind itself in advance to reject any future application on the basis of a determination made to cease payment of compensation for an injury under a particular section of the Act: Plumb v Comcare [1992] FCA 595; (1992) 39 FCR 236 (FC) at 240. Nor can that result be achieved by purporting to determine on a reconsideration of a determination under s 14 that a liability, which correctly and effectively attached to APC in respect of a particular injury, ceased on the date of the determination and that entitlement to compensation under any section of the Act was thereafter excluded in respect of the injury. The Act does not contemplate the making of such a determination once liability under s 14 of the Act has properly arisen and a determination made to accept a claim made in accordance with s 54 of the Act.
[Emphasis added]
[17] [2013] FCA 318.
Thus it can be understood that the effect of revoking a determination of threshold liability for an ‘injury’ under s 14 is that no liability for that ‘injury’ existed at any time. This should not be confused with a decision to cease payment of compensation for an ‘injury’ under a particular head of entitlement. A decision of that kind turns on the absence of present liability, and it does not bar further claims in respect of that ‘injury’,[18] whereas revocation of a positive s 14 determination removes all liability in respect of the previously accepted ‘injury’.
[18] Duong v Australian Postal Corporation [2005] FCA 991 at [44]-[46].
Clearly enough, in the context of a fresh ‘injury’ claim, there would be no utility in staying operation of a reconsideration decision affirming a negative s 14 determination – the grant of a stay cannot create liability for an ‘injury’ where no such liability has previously been established to exist. Staying implementation or operation of a reconsideration decision has the effect of preserving the previously existing state of affairs. Where a positive determination of s 14 liability is revoked on reconsideration, the utility of staying implementation or operation of the reconsideration decision has a different complexion. Simply put, the power to grant a stay cannot open the gateway to liability under s 14, but where that gateway has previously been opened, the grant of a stay will have the effect of preserving s 14 liability on the basis that an ‘injury’ exists, temporarily holding open the gateway to payment of compensation under specific heads of entitlement.
The question of utility raises a threshold issue about the purpose of the stay power conferred by s 41(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) –
(2) The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
As can be seen, the express purpose of granting a stay is for the purpose of securing the effectiveness of the hearing and determination of the application for review. The conception of utility must be considered in this frame. It is not to the point that a negative s 14 determination does not prevent a person from making further claims, as Comcare contends. The opinion to be formed for the purposes of s 41(2) of the AAT Act is whether it is desirable to stay implementation or operation of the reconsideration decision to revoke threshold liability for the previously accepted ‘injury’ in order to secure the effectiveness of the application for review.
When forming this opinion, there are several matters that should be considered and relevant supporting materials taken into account.[19] These include –
[19] Re Scott and Australian Securities and Investments Commission [2009] AATA 798 at [4]; Re Wirski & Comcare [2016] AATA 461 at [7]-[9]..
(a)prospects of the substantive application for review succeeding;
(b)interests of those affected, including
(i)consequences for Ms Rose should a stay not be granted;
(ii)consequences for Comcare should a stay be granted;
(iii)the public interest;
(c)consequence of not granting a stay on the effectiveness of the application for review; and
(d)any other relevant matter.
It perhaps trite to observe that, while there is no onus on either party, it is for Ms Rose to provide sufficient supporting materials to make out her request.
Prospects of success
Comcare asserts that Ms Rose’s application has little real prospect of succeeding and it lacks sufficient merit to justify granting a stay. Support for this proposition is drawn from two sources. Firstly, a pre-employment Health Status Assessment report form that was completed by Dr Paton on 30 May 2005,[20] and secondly from clinical and other records of Dr Veness, Ms Rose’s previous treating psychiatrist. These documents, so the argument goes, reveal that the psychiatric condition Ms Rose claimed as an injury had a long history preceding the commencement of her Commonwealth employment by the Department of Prime Minister and Cabinet. And this history, Comcare argues, was not frankly disclosed by Ms Rose to her Commonwealth employer or to Comcare in the compensation claim and supporting documents she lodged. Furthermore, in Comcare’s submission, there are questions about the reliability of evidence provided by Dr Veness and Dr Watson, Ms Rose’s treating general practitioner.
[20] T2.
Comcare asserts that two issues of present relevance rise from this. The first is that Ms Rose may have made a wilful and false misrepresentation about not having previously suffered from the ailment she later claimed as an injury. If this is made out, then her claim may be barred by operation of s 7(7) of the SRC Act. The second is that Ms Rose’s case relies, substantially, on her own evidence and the evidence of Dr Veness and Dr Watson. But there are serious doubts about the reliability of the doctor’s evidence addressing issues of work causation, and Ms Rose’s reliability as a witness is seriously compromised by her failure to frankly disclose her full pre-employment medical history of mental illness.
It is on this basis that Comcare says Ms Rose’s substantive application has little prospect of succeeding – “This is not a case in which it would be appropriate to assume that the applicant has prospects of complete success” and “it ought not to be concluded that the applicant has even, or better than even, prospects of success”.[21]
[21] Comcare’s Outline of Submissions, 2 May 2017 at [14].
Even though Comcare may consider the materials supporting its case to be compelling, presently the materials on which it relies, which go to issues of credit, have not been tested. Even on cursory consideration, the materials do not all go one way and the conclusions Comcare has drawn may not be the only conclusions capable of being drawn when all the relevant material is weighed up and the evidence given at hearing is properly tested.
Apparent inconsistencies in reports provided by Dr Veness and Dr Watson at various times and for different purposes arise on the written record, but these may be capable of rational explanation should the doctors be examined on these points. Those are matters for hearing. Similarly, Ms Rose’s apparent failure to fully disclose her mental health history in the pre-employment Health Status Assessment may be capable of reasonable, rational explanation. Once again, this is a matter for hearing.
For the purposes of forming opinion about the desirability, or otherwise, of granting the stay Ms Rose has requested, I do not think it is necessary or appropriate to embark upon a preliminary hearing of the issues or to make a preliminary assessment about issues of credit.
Even though I understand and accept that Comcare only recently came into possession of materials adverse to Ms Rose’s claim, it does not follow and it should not too readily be accepted at this point in the proceedings that those untested materials outweigh other materials that supported acceptance of her claim over a long period.
Finally on this point, lest there be any confusion, it is necessary to say something about Comcare’s submissions in respect of ‘complete success’. This, I understand, is a reference drawn from what Downes J (then President of the Tribunal) said in Re Scott and Australian Securities and Investments Commission[22] at [5] –
So far as the prospects of success are concerned, I will proceed on the basis that there are reasonable prospects of success in the application to set aside the banning order altogether. To the extent to which there may be a case that the banning order should be reduced, either because it is too severe, or because the facts upon which it was based were not well founded, so that there might be a banning order of something of the order of four months or more, that prospect of success would not seem to justify a stay. Nevertheless, I am prepared to make a positive finding on the first matter, namely the prospects of complete success.
[22] [2009] AATA 798.
This case, as can be seen, involved a request for orders staying operation of a banning order under the Corporations Act 2001. The prospect of partial success, on grounds that some reduction in the duration of the banning order might result, was not considered to be sufficient to justify the grant of a stay on implementation of the ban imposed. It is quite clear that the relevant consideration in respect of the prospect of Mr Scott succeeding in his application was in respect of setting aside the banning order, not the prospect of it being left in place for a shorter period.
Ms Rose’s case has a different character. It turns on the existence of an ‘injury’, as claimed, and the establishment of threshold liability under s 14 of the SRC Act. This is rather black and white – either the evidence establishes that Comcare is liable under s 14 for an ‘injury’ for the purposes of the SRC Act, or it is not. There is no other result possible.
Ms Rose’s case may not be strong, but to my mind, it is not so weak, or so lacking any prospect of success, that I should make a negative finding on this point.
Interests
Comcare did not raise issues of prejudice or adverse consequences it may face should a stay be granted. And I accept that none will arise. No issue was raised in respect of any difficulty recovering any additional payments to Ms Rose should a stay be granted and her substantive application not be successful.
At hearing, Comcare accepted that Ms Rose may experience hardship as result of cessation of weekly payment of compensation under s 19 of the SRC Act. On the materials before the Tribunal and, noting submissions made by counsel for Ms Rose, I am prepared to find that her total weekly pension income is largely pre-committed and the remaining amount of some $150 is barely sufficient to meet her reasonable living expenses.
I understand that it is for this reason that Ms Rose has not been obtaining psychological or psychiatric treatment following Comcare’s decision to limit payment of compensation for such treatment. She asserts, and I think it can be accepted, that she is presently unable to meet the costs of obtaining medical treatment for ailments she suffers - it is not disputed that she continues to suffer from a psychiatric illness and a pain condition. The desirability of her obtaining appropriate treatment for these ailments is apparent in the medical reports of Dr Zsadanyi, a consultant psychiatrist, Dr Lauffenberger, treating psychologist, and Dr Watson, treating general practitioner. Considering the medical history of her psychiatric illness, including episodes of attempted self-harm and the apparent fragility of her mental health, I am prepared to accept that her inability to afford recommended treatment in the course of these proceedings poses a risk to her capability to fully participate in the hearing. This places the effectiveness of the application for review at risk.
Ms Rose asserts that Comcare ceased payment of weekly compensation as result of its reconsideration decision to revoke threshold liability for her previously accepted injuries. Ms Rose argues that, even though she has not been provided with a determination ceasing such payments, these two events are consequentially linked.
On this point, there is scant evidence to go on. I understand that Ms Rose was paid weekly compensation for incapacity resulting from her accepted injuries for a long period on medical certificates issued by Dr Watson. On 9 March 2017, Dr Watson certified that Ms Rose was unfit for work from that day to 30 November 2017 as a result of these injuries.[23] On 15 March 2017, Comcare decided to reverse the Tribunal consent decisions by which s 14 liability for the injuries was established.
[23] T19 folio 131.
I understand that Comcare ceased payment of weekly compensation soon thereafter. I have not been provided with Comcare’s decision ceasing payment of weekly compensation for incapacity – that matter is not presently before the Tribunal. Whether or not a specific determination was made I cannot be certain, but it is clear enough that the reconsideration decision revoking threshold liability under s 14 meant there was no ‘injury’ and this removed the central foundation for payment of weekly compensation to Ms Rose. As I have said, without ‘an injury’, compensation is not payable.
Should a stay not be granted, that barrier will remain in place. Whether or not payment of weekly compensation would resume should a stay now be granted, I cannot say. That is a matter for Comcare to determine on the merits, week by week.
Perhaps the most that can be said is that while the bar to payment of compensation for her previously accepted injuries remains in place, there is no real prospect of Ms Rose being paid compensation that would enable her to obtain medical treatment recommended by her treating medical practitioners. Staying implementation of that bar will enable Comcare to resume or, if requested, to reconsider compensation payments on the merits.
There is another consequential effect for Ms Rose should a stay not be granted. This relates to the effect of revoking s 14 liability on previous payments of compensation and the consequential existence of overpayment debts for which Ms Rose would be liable.
At hearing, Comcare submitted that revocation of s 14 liability does not give rise to an overpayment or a recoverable debt under s 114 of the SRC Act. Subsequently, after the hearing, Comcare amended this submission to the extent that –
“Where compensation has been paid for an injury and Comcare subsequently determines that there is no injury (under s 14 of the SRC Act), it necessarily follows that the compensation ‘should not have been paid’, and, pursuant to s 114 of the SRC Act, it may be recovered from [sic – by] Comcare.”
Under s 114(1) of the SRC Act, where an amount of compensation has been paid to a person that ‘should not have been paid’, the amount ‘is recoverable by the relevant authority from the person in a court of competent jurisdiction as a debt due to the relevant authority’.
It may be correct to say that a revocation of s 14 liability does not, of itself, render Ms Rose liable to repay a debt. But s 114(1) operates in two steps. The first is automatic or self-executing if one of the preconditioning tests set out in s 114(1)(a), (b) or (c) is satisfied, and it is by this operation of law that a debt is established. The second step involves exercise of discretion to recover the debt from the person in a court of competent jurisdiction.
For a person in Ms Rose’s shoes, where liability that was found to exist many years ago is revoked, the amount of compensation she was paid under the SRC Act ‘should not have been paid’. By operation of s 114(1), it is an immediate consequence of the revocation decision that the amount which should not have been paid is a debt that Comcare may seek to recover. I was informed that the total amount of compensation paid to Ms Rose for her previously accepted injuries is in excess of $720,000.
It is not difficult to accept that these combined circumstances may weigh heavily on Ms Rose and the resulting stress may have a negative effect upon her already fragile mental health and her psychiatric illness, especially if she is not obtaining recommended treatment.
These considerations weigh in favour of granting a stay.
Public interest
At this point, it is necessary to address submissions relating to the public interest.
Comcare accepts that the public interest is served by the effective and timely administration of justice. It asserts that there is a public interest in ensuring that employees fully and frankly disclose their medical histories to prospective employers and that this is also done when claiming compensation.
These propositions can readily be accepted.
The beneficial scheme the SRC Act provides for payment of compensation to injured employees hinges on effective decision-making in respect of properly notified injuries and related claims. It is by this means that liability to pay compensation for ‘an injury’ is properly assessed, tested and determined – under s 69(a) claims are to be determined accurately and quickly. The early determination of a claim following proper investigation serves the purposes of equity, fairness and the administration of justice, reducing the risk of prejudice arising with the effluxion of time as memories fade, witnesses move on and relevant documents may be lost or destroyed. It has long been recognised that delay and prejudice go hand in hand, rendering the administration of justice more difficult or costly in many cases.
And it is for these reasons that mechanisms for the reconsideration and review of decisions are subject to time limits: 30 days in respect of a request for reconsideration under s 62(3) of the SRC Act and 60 days in respect of an application to the Tribunal for review under s 65(4). The discretion conferred by s 62(1), however, whereby a ‘determining authority’ may reconsider a determination on its own motion, is not subject to any time limit and the discretion may be exercised at any time after a ‘determination’ has been made, even after many years have gone by.
Generally, where an issue has properly been decided, and the decision has been left to rest without action being taken to upset it, and those affected by it have relied upon the validity of the decision for some time, there may be a reasonable expectation that the decision is final. But finality is an elusive conception in respect of a ‘determination’ under the SRC Act. Perhaps the most that can be said is that the greater the period in which a determination remains in effect without challenge, the greater certainty those affected by the decision may have when relying upon its validity, and the greater the requirement for compelling evidence to upset it.
In Ms Rose’s case, Comcare asserts that new materials have come to light that strongly suggest she did not provide full and frank information about her medical history, and about her previous psychiatric condition in particular. That is a matter for evidence when her substantive application is heard.
Clearly enough, there is a public interest in ensuring that the correct or preferable decision is made in all of the relevant circumstances, on review. This includes securing the effectiveness of the hearing to enable thorough testing and consideration of all relevant materials and evidence. If compensation should not have been paid to Ms Rose for want of an ‘injury’, there is a public interest in making that decision and preserving the integrity of the compensation scheme the SRC Act provides.
There is also a public interest in the administration of justice when reviewing afresh claims that have previously been determined. Under s 72(a) of the SRC Act, the exercise of power when determining a claim is to be ‘guided by equity, good conscience and the substantial merits of the case, without regard to technicalities’. This applies equally to the reconsideration of a determination.
In exercise of jurisdiction conferred by s 64(1) of the SRC Act, under s 43(1) of the AAT Act, the Tribunal ‘may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision’.
It is necessary to determine what those powers are.
The express terms of s 62(1) of the SRC Act are clear enough. Nevertheless, when deciding to exercise the own-motion reconsideration power under s 62(1), the ‘determining authority’ should consider alternative powers and remedies that may be available in the particular circumstances. Where another power is available, a decision as to which power is the most appropriate to exercise in the circumstances must be made, having regard to all relevant or material factors. For example, in Ms Rose’s case, where fresh medical evidence has come forward to contradict the existence of an ‘injury’ for which liability was accepted under s 14, the ‘determining authority’ would have power to –
(a)exercise the 62(1) discretion to reconsider the earlier determination under s 14 in respect of the ‘injury’; or
(b)determine to deny present liability under particular heads of compensation on the basis that no ‘injury’ exists, as occurred in Telstra Corporation Ltd v Hannaford.[24]
[24] [2006] FCAFC 87.
The implied discretion to decide which of these options is the most appropriate is a matter for the ‘determining authority’. Proper exercise of this discretion requires careful consideration of the particular circumstances and all material factors. Material factors may include the effect of an adverse decision upon the claimant, as well as any public interest in a contrary decision. Exercise of the discretion without proper consideration of all material factors, or choosing an option that is less appropriate than another, may be open to challenge on grounds of unreasonableness.[25]
[25] See Ertan v Hurford [1986] FCA 131.
Whether or not the implied discretionary power was available to and exercised by the person who made the reviewable decision in Ms Rose’s case, it is not clear if the power is available to the Tribunal on review. This has not been argued. I will go no further with this other than to observe that the Tribunal’s jurisdiction is confined by s 64 to review of a reconsideration decision, and the powers it exercises under s 43(1) of the AAT Act are confined to those available to the determining authority on reconsideration under s 62.[26]
[26] Lees v Comcare [1999] FCA 753 at [39].
The significance of these considerations, presently, is in respect of the public interest in the administration of justice. It is important to properly comprehend the factors the Tribunal is bound to consider that weigh upon exercise of discretion to upset a decision of long standing that has been relied upon by the parties. As can be seen, there are legal and factual questions for the Tribunal when determining Ms Rose’s application for review.
The public interest is best served by securing the effectiveness of the hearing and determination of these issues in a timely and fair manner, without undue delay and affording natural justice to the parties.
Effect of not granting a stay on the effectiveness of the application for review
It is difficult to assess the extent to which, if at all, not granting a stay might bear upon the effectiveness of the hearing and determination of the application for review.
Neither party contends, correctly in my opinion, that not granting a stay would render the application for review nugatory or abortive. In Ms Rose’s submission, it would have a negative effect on her health and it would place at risk her capacity to fully participate in the hearing.
Other relevant matters
Determination of application 2017/1609 requires consideration of the five factors necessary to establish ‘an injury’ pursuant to the claims made by Ms Rose in 2008 and 2011. Those claims are in respect of ailments to which, she asserts, her employment contributed to a significant degree. The materials and evidence on which Comcare relies need to be properly tested. In order to properly address the issues, the parties will require time to prepare for hearing.
I am concerned that delay will prolong the uncertainty hanging over Ms Rose’s circumstances and any related stress she may experience. Without grant of a stay this may increase the risk that she may experience difficulty participating fully in the hearing. Nonetheless, in order to secure the effectiveness of the hearing, it is most desirable for the application to be prepared for hearing and determination by the Tribunal at the earliest opportunity.
Conclusion
To my mind, on balance, in order to secure the effectiveness of the hearing and the application for review it is desirable for a stay to be granted.
The evidence, such as it is, points to Ms Rose experiencing financial hardship that renders her unable to afford recommended or optimal medical treatment. The ‘generally poor prognosis’ to which Dr Zsadanyi referred[27] and the ‘dependent interpersonal repertoire’ Dr Saboisy noted[28] clearly expose the fragility of Ms Rose’s mental condition.
[27] T15 folio 74.
[28] T14 folio 64.
Unless a stay is granted, the revocation decision prevents any possibility of payment of compensation in respect of the injuries that were previously accepted and, by operation of law, it creates a debt that may be recovered from her.
To my mind, perhaps the most that can be said is that if Ms Rose’s mental health deteriorates as a result of her inability to pay for treatment, or the stress that any person might experience in the circumstances confronting her, to which I have referred, her capacity to positively engage in the review proceedings, and to give evidence at the hearing, may well be reduced. This poses a risk to the effectiveness of the hearing and to proper determination of her application for review.
On balance, the factors to which I have referred weigh in favour of granting a stay. It is desirable and appropriate to exercise the discretion conferred by s 41(2) of the AAT Act to stay operation and implementation of the reviewable decision in application 2017/1609. The stay will remain in force until the application for review has been determined, or subject to further order.
Operation and implementation of Comcare's 15 March 2017 reviewable decision in application 2017/1609 is stayed for the duration of these proceedings, subject to further order.
I certify that the preceding 82 (eighty -two) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
..........................[sgd]..............................................
Associate
Dated: 30 May 2017
Date(s) of hearing: 2 May 2017 Counsel for the Applicant: David Richards Solicitors for the Applicant: Prail Lawyers Counsel for the Respondent: Peter Woulfe
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