Rush v Motor Accidents Compensation Tribunal

[2021] TASSC 18

[2021] TASSC 18

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Rush v Motor Accidents Compensation Tribunal [2021] TASSC 18
PARTIES:	RUSH, Selina
v
MOTOR ACCIDENTS COMPENSATION TRIBUNAL
MOTOR ACCIDENTS INSURANCE BOARD
FILE NO:	1968/2020
JUDGMENT
APPEALED FROM:	Rush v Motor Accidents Insurance Board
[2020] TASMACT 1
DELIVERED ON:	22 April 2021
DELIVERED AT:	Hobart
HEARING DATE:	15 April 2021
JUDGMENT OF:	Pearce J
CATCHWORDS:

Administrative Law – Judicial review – Grounds of review – Procedural fairness – Hearing – Nature of hearing

– Refusal of adjournment – No breach of duty to afford natural justice established.

Russell v Duke of Norfolk [1949] 1 All ER 109; Sullivan v Department of Transport (1978) 20 ALR 323; Kioa
v West (1985) 159 CLR 550, applied.

Aust Dig Administrative Law [1067]

REPRESENTATION:

Counsel:

Applicant:	In person
Respondent:	K Read SC

Solicitors:

Respondent:  Pedder Schuh Lawyers

Judgment Number:	[2021] TASSC 18
Number of paragraphs:	34

Serial No 18/2021 File No 1968/2020

SELINA RUSH v MOTOR ACCIDENTS COMPENSATION TRIBUNAL

and MOTOR ACCIDENTS INSURANCE BOARD

REASONS FOR JUDGMENT PEARCE J
22 April 2021

1             If a person suffers personal injury in a motor vehicle accident which occurred in Tasmania, the Motor Accidents Insurance Board (the Board) must, by operation of the Motor Accidents (Liabilities and Compensation) Act 1973 (the Act), s 23, pay the benefits prescribed by the schedule to the regulations made under that Act. The applicant, Selina Rush, was injured in a motor vehicle accident on 26 January 2017. She applies under the Judicial Review Act 2000 (the JRA) for an order of review of a decision of the Motor Accidents Compensation Tribunal, constituted by the Chairperson, A M Clues. On 27 July 2020 the Tribunal dismissed two references brought by the applicant. Both references challenged what the applicant claimed was the refusal of the Board to pay scheduled benefits in accordance with the regulations: Rush v Motor Accidents Insurance Board [2020] TASMACT 1.

2             The Tribunal submits to the jurisdiction of the Court: the Act, s 28(6). The Act provides for an appeal from a determination made by the Tribunal to the Supreme Court: s 28(6). However the applicant has, instead, made application under the JRA which provides that a person who is aggrieved by a decision to which the Act applies may apply to the Court for an order of review relating to the decision: s 17(1). The Board has not submitted that the Tribunal decision is not one to which the JRA applies. This application is brought on five of the grounds specified in s 17(2). The application states the grounds by direct reference to the terms of s 17(2)(a), (b), (e), (f) and (i):

"1	S17(2)(a) that a breach of the rules of natural justice happened relating to the making of the decision of the Judicial Review Act 2000.
2	(b) that procedures that were required by law to be observed relating to the making of the decision were not observed.
3	(e) that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made.
4	(f) that the decision involved an error of law (whether or not the error appears on the record of the decision).
5	(i) that the decision was otherwise contrary to law."

3             The applicant is unrepresented. She was unrepresented in the proceedings before the Tribunal. She swore and filed an affidavit dated 22 September 2020 in support of the application. She swore and filed a short further affidavit on 30 October 2020. The materials she relies on and her submissions to this Court make clear that her principal complaint is that the hearing of the Tribunal on 16 July 2020 proceeded in her absence. By doing so, she contends, it breached the rules of natural justice by denying her procedural fairness.

4             No further particulars of the grounds of the application were provided in advance of the hearing. Apart from vague assertions in the material put before the Tribunal, and a passing suggestion in oral submissions to this Court, that the Tribunal was biased against her, the applicant has not identified any other non-observance of procedure, improper exercise of power or legal error. Beyond the applicant's affidavit, the documents which are before me on this application have been provided by the legal representatives of the Board. The materials filed by the Board include not only copies of the references and the Tribunal's written reasons, but also copies of correspondence between the applicant, the Tribunal and the Board between November 2018 and the Tribunal's determination. I received the material in this form because, in pre-hearing directions before this Court, the applicant contended that there were

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relevant documents held by the Tribunal which should have been, but were not, provided to the Court. The procedural rules which apply to applications made under the JRA are contained in the Supreme Court Rules 2000, Part 32, Division 1A. It was for the applicant to put any further relevant materials before the Court. For that reason I requested the Board, for fairness, to provide the documents. I am satisfied that nothing of any relevance has been excluded from my consideration.

The legislative scheme

5             Until 17 February 2020 the regulations which prescribed the benefits payable under s 23 of the Act were the Motor Accidents (Liabilities and Compensation) Regulations 2010. On that day the Motor Accidents (Liabilities and Compensation) Regulations 2020 came into force. For the purpose of this application there is no material difference. I will refer to the 2020 regulations. The two parts of the schedule which are relevant to this application provide for payment of medical benefits and for prostheses and other appliances as disability benefits.

6             Part 2 of Schedule 1 provides that, subject to the terms of the Part, "if a person suffers personal injury resulting directly from a motor accident, all the expenses reasonably and necessarily incurred by the person, or on his or her behalf, for the provision of treatment required by him or her within the Commonwealth as a result of the injury are payable as medical benefits." The expense of providing treatment for any person is taken to be "unreasonably incurred to the extent to which it exceeds the expense that would be incurred if that treatment had been provided in the most economical manner practicable in the circumstances."

7            Paragraph 1 of Part 6 of Schedule 1 relevantly provides for payment for prostheses and other appliances in the following terms:

"(1) If a person suffers personal injury resulting directly from a motor accident, such expenses as are reasonably incurred by, or on behalf of, that person, for provision of such of the following as are reasonably required to alleviate the effect of the personal injury, are payable as disability benefits:

(a) artificial limbs or other prostheses;

(b) medical or surgical aids or appliances;

(c) subject to subclause (2), any other aid, appliance or equipment of a domestic nature determined by the Board to be appropriate in the circumstances.

(2) Expenses incurred under subclause (1)(c) are not payable unless the Board has provided approval in writing before the aid, appliance or equipment is purchased.

8             In the first instance, the right of a person to be paid any scheduled benefit is to be decided by the Board: s 28(1)(b). Either the Board, or a person aggrieved by a determination of the Board, may refer the matter of the right of a person to a scheduled benefit to the Tribunal: s 28(2) and (3).

9   The Tribunal is constituted under the Act, s 12. Section 12(7) provides:

Section 8 and Part 3 of the Commissions of Inquiry Act 1995 apply to matters referred to the Tribunal as if —

"(7)

(a)	the Tribunal were a Commission established under section 4 of that Act; and
(b)	the matter were the matter into which the Commission had been directed to inquire under that Act."

10           The Commissions of Inquiry Act 1995 (the COI Act) provides for the establishment, by the Governor, of a Commission to inquire into and report on a particular matter. The provisions in Part 3 of the COI Act, as they apply to the Tribunal in this case, include that:

 hearings are open to the public, although in some circumstances hearings may be closed: s 13;

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	a person appearing before the Tribunal may, with its permission, be represented by counsel: s 15;
	the Tribunal is not bound by any rule of law which relates to evidence in judicial proceedings: s 20;
	witnesses may be examined under oath: s 25.

11   Section 28 of the Act continues:

"(4) The Tribunal shall make such determination on a matter referred to it as it considers proper in the circumstances.

(5) A determination under subsection (4) binds —

(a) the Board; and

(b) any other party to the reference to the Board."

12           The Motor Accidents (Liabilities and Compensation) (Tribunal) Regulations 2019 provide for referrals to the Tribunal. By reg 4(2) a referral is to be made by written notice in a form approved by the Board, to be given within 14 days after the person is notified of a determination or refusal of the Board, or becomes aware of the failure of the Board to make a payment by way of a scheduled benefit, or any further period that the Tribunal, on application by the person, considers reasonable. Also relevant to this application, reg 11(3) provides:

"(3) A document or notice under these regulations may be served on or given to a person other than the Board or Tribunal by –

(a) delivering it personally to that person; or

(b)	leaving it addressed to that person at his or her usual or last known place of residence with a person who has apparently attained the age of 18 years, and is apparently residing or employed there; or
(c)	sending it by ordinary or registered post addressed to that person at the usual or last known place of residence or business of that person; or
(d)	with the written consent of that person –
(i) faxing it to that person's fax number; or

(ii) emailing it to that person's email address."

The procedural history of the applicant's referrals

13          The first referral considered by the Tribunal was filed by the applicant on 25 February 2019. The applicant challenged a determination of the Board to decline to pay the cost of C5-6 anterior decompression and fusion surgery. Approval for payment of the cost of the surgery was made to the Board by neurosurgeon Professor Richard Bittar on 21 November 2018. Initially, the request for approval of payment was declined on the basis of the Board's view that insufficient information had been provided to enable it to properly assess the request, and then because the applicant did not attend an independent medical examination. At the time of the referral the surgery had not been performed and no surgical or associated costs had yet been incurred.

14           However, after further investigation and enquiry, the Board agreed in October 2019, to fund the surgery. The surgery was performed and the costs of it, and associated costs, were submitted to and paid by the Board between November 2019 and February 2020.

15           The second referral concerned the Board's purported refusal to pay the sum of $549 paid by the applicant on 17 July 2019 for purchase of a log splitter. The claim for reimbursement of the cost was made by email from the applicant to the Board, dated 1 November 2019. On 7 November 2019 the Board wrote to the applicant's general practitioner seeking further information to justify the purchase. On 12 November 2019 the Board wrote to the applicant indicating that the information it had received from the general practitioner was "not sufficient to determine the suitability of the log splitter for your

4   No 18/2021

use in light of your reported physical restrictions". The letter indicated that the Board "will not reimburse
the cost of the log splitter at this time". The reference to the Tribunal was filed on 10 January 2020.

16           Both references were listed before the Tribunal at a directions hearing on 16 March 2020. The applicant was unable to attend and the directions hearing was adjourned to 26 March 2020. On that day the applicant attended by telephone. Another directions hearing took place on 27 April 2020. Directions were made about the provision of information and documents. Another directions hearing was held on 13 May 2020 and again on 15 June 2020. The applicant did not attend the latter hearing. By then it had become apparent that, during the course of the proceedings, the applicant became concerned about the provision of documents to her, and the Tribunal's procedure generally. Further, by then, the Board, through its legal practitioners, had written to the Tribunal and the applicant outlining the issues it intended to raise in answer to the references. The Board had advised that, for reasons I will refer to momentarily, it did not accept that the Tribunal had jurisdiction to deal with the first reference. As to the second reference the Board claimed that, contrary to par 1(2) of Part 6 of Schedule 1 of the regulations, the purchase had been made without "prior consultation". On 15 June 2020 the Tribunal determined that both references should be set down for hearing. The Secretary of the Tribunal sent a letter dated 15 June 2020 by mail to the parties which included the following:

"I refer to the directions hearing that took place by telephone on 15 June 2020 at 11.00 parties and to ensure that procedural fairness is followed, the reference filed by Ms
am. I note that Ms Rush did not attend.
Rush that are currently before the Tribunal…will be listed for hearing. The hearing will

relate to jurisdiction and the merits of the references. Both parties will be required to attend the hearing in person. The hearing will take place in Launceston as per the enclosed notice of hearing." [Emphasis added.]

17           The letter also requested that the Board provide the Tribunal and the applicant with other information including copies of any outstanding invoices relating to the applicant's surgery which was the subject of the first referral. The notice of hearing which accompanied the letter listed the hearing for 11am on Thursday, 16 July 2020 in Launceston.

18           On 5 July 2020 the applicant sent an email to the Tribunal objecting to the requirement that she attend the hearing in Launceston in person. She sought to attend by telephone and that, as she was the applicant, "any hearing is to be heard near the applicant's place of residence". She asked that her correspondence not be released to any other person without her written consent. On 7 July 2020 the Secretary of the Tribunal replied by email indicating that, having consulted the Chairperson, "to ensure that procedural fairness is followed, the hearing of your references needs to take place with both parties

present before the Chairperson. The closest venue to you is based in Launceston … You will need to

attend that hearing in person. If you do not attend, it may proceed in your absence".

19           On 9 July 2020 the applicant wrote a further email objecting to the requirement that she attend in person in Launceston. She suggested that "all courts are operating by phone" and insisting that "I will be appearing by phone". She also suggested that the Tribunal use premises in Burnie or in Devonport. The Secretary replied by email on the same day. He reminded the applicant that the Chairperson's position had already been conveyed to her and that "[i]t is a matter for you if you choose to attend". The applicant replied that "I have made it clear to the chair and in email, I will be attending the hearing by phone." The Secretary replied: "I confirm for the final time that you will not be able to attend by telephone."

20           On Friday, 10 July 2020 the legal practitioner for the Board wrote to the Tribunal seeking an adjournment of the hearing. On Monday, 13 July 2020 the Tribunal advised the parties by email that, in light of the application, the Tribunal would conduct a directions hearing on Tuesday, 14 July 2020 at 4 pm. In her affidavit of 22 September 2020 the applicant asserts that she was not informed of the directions hearing conducted on 14 July. Nothing turns on the point because the adjournment application

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was refused by the Chairperson. An email was sent to the applicant at 4.15 pm on Tuesday, 14 July 2020 advising her of the refusal, and that the hearing "will proceed on Thursday 16 July 2020 at 11.00 am in person".

21           The applicant did not attend the hearing. The Tribunal decision, with written reasons, was published on 27 July 2020. The first referral was dismissed as the Tribunal considered it was "without jurisdiction". As to the second referral, the Chairperson acceded to an application made by counsel for the Board that it be dismissed for want of prosecution.

Natural justice

22           In her affidavit of 30 October 2020 the applicant asserts that the Tribunal "has always called her telephone in respect of all the notices issued by the Tribunal". Her earlier affidavit asserts that she did not receive a telephone call on 16 July 2020 and, because the hearing proceeded in her absence, she was "deprived of an opportunity to be heard on matters of importance".

23          The content of the duty to afford natural justice is flexible and variable: Kioa v West (1985) 159 CLR 550 per Brennan J (as he then was) at 612. What fairness requires depends on the circumstances of the case including the nature of the inquiry, the subject matter and the rules under which the decision- maker is acting: Russell v Duke of Norfolk [1949] 1 All ER 109 at 118. In Kioa v West, Mason J (as he then was), as to the exercise of a power conferred by statute, stated at 585:

"In this respect the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations."

24           A failure to adjourn can be procedurally unfair: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, 209 CLR 597 at 40. However that would generally be so only when the refusal deprives a party of a reasonable opportunity to present its case: see also Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J. The duty does not extend to ensuring that the party takes the best advantage of the opportunity to which it is entitled.

25           In this case, the applicant was not unfairly deprived of an opportunity to be heard in the proceedings before the Tribunal. It had been made abundantly clear to her that her attendance in person at the hearing was required. The applicant referred to the Tribunal regulations, reg 11(3)(d)(ii), which only authorised formal service of notices to her by email with consent. However this ground of the application is concerned with fairness. There could be no doubt that the applicant was aware of the hearing. The Tribunal was given no proper explanation for her non-attendance. Before this Court the applicant relied only on a letter from her general practitioner written more than a year before the Tribunal hearing which suggested that her medical condition made "sitting in a car for longer than an hour physically painful". The applicant lives in Devonport. She had queried why the hearing could not have been conducted in Burnie. She attended the hearing of this application in Burnie. I am quite unpersuaded that listing the hearing in Launceston unfairly deprived her of a reasonable opportunity to be heard.

26           I think that the extent of the duty to provide procedural fairness, in this case, is also affected by the nature of the subject matter of the proceedings. It would have been quite difficult for the Tribunal to conduct the hearing, as opposed to directions hearings, over the phone. There were many documents to be considered. The Chairperson had made it quite clear that it was because of the difficulty of managing the proceedings fairly that a hearing in person was required.

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27           Further, the second referral was confined to a dispute over payment for the log splitter which cost just over $500. Dismissal of the reference did not prevent a further claim to the Board or referral to the Tribunal concerning the same account. The first referral related to the cost of the surgery. By the time of the hearing the expenses of the surgery had been paid. The Tribunal had been informed by the Board that it had no knowledge of any outstanding unpaid expenses. The applicant was not able to direct this Court to any other expense arising from the surgery which the Board had been asked to pay but had not. If any such expenses have been incurred, they can still be claimed. The Tribunal dismissed the first referral on the basis that it was without jurisdiction because, at the time of the referral, no expenses had been "incurred". Although the expenses were later incurred, they were paid, and there were at the time of the hearing (and still) no unpaid expenses to consider.

28           I would record my view that, on consideration of all of the materials before the Tribunal, there

was absolutely no basis to find that there was any actual or apprehended bias on the part of the Tribunal.

29   This ground of the application is not made out.

The remaining grounds – s 17(2)(b), (e), (f) and (i)

30 Beyond the matters already raised, the applicant has not pointed to any procedure that was required by the law to be observed by the Tribunal that was not observed. The decision of the Tribunal was not an improper exercise of the powers provided for by the Act and the COI Act. The two remaining grounds relate to whether the Tribunal made an error of law or a decision which was contrary to law. The applicant has not pointed to any legal error, but I will briefly consider the manner in which the Tribunal reached its decision on each reference.

31           In dismissing the first reference for want of jurisdiction, the Tribunal accepted the Board's contention, made in reliance on the Tribunal decision in Hall v Motor Accidents Insurance Board [2009] TASMACT 1, that the Board was not obliged to pay medical expenses unless the expense has actually been incurred. It is not difficult to understand how the interpretation of the Act said to have been applied in Hall would, if strictly applied, create practical, financial and procedural difficulties for claimants. However, this application is not an appropriate vehicle for consideration of what was said by the Tribunal in Hall, or whether what was said is correct. The correctness of the decision was not argued. The applicant has not identified any expenses which might fall within the terms of the first reference, that is, the costs of the surgery and the associated expenses, which have not been paid. Because there are no expenses of the surgery which are unpaid, even costs which have not yet been incurred but which arise from the surgery, it would be inappropriate for proceedings relating to the Tribunal's determination to continue: JRA s 38(1)(a)(i). There is nothing to prevent the applicant from submitting to the Board any further or other claim for expenses she claims arise as a result of the personal injury suffered in the motor accident.

32           The Tribunal dismissed the second reference concerning the log splitter, for want of prosecution. The Tribunal regulations, reg 13, expressly provide for dismissal of a reference "in

accordance with the practice applicable in the Supreme Court for the … dismissal for want of

prosecution of an action." The Supreme Court has inherent power to dismiss an action for want of prosecution where justice demands it. Here, the Tribunal took into account the failure of the applicant to attend the hearing, the absence of explanation for her non-appearance, the time which had been permitted for preparation of the reference, what the Tribunal considered was the "unnecessary loss of time and resource for the Tribunal" and prejudice to the Board if the matter were allowed to proceed. I am not satisfied that any error of law in the exercise of the discretion has been demonstrated.

33   None of the remaining grounds are made out.

Conclusion and order

34   None of the grounds of the application are made out. The application is dismissed.