Saywell and Comcare (Compensation)

[2024] AATA 3357

Saywell and Comcare (Compensation) [2024] AATA 3357 (5 June 2024)

Division:GENERAL DIVISION

File Number(s):2023/7232        

Re:Scott Saywell  

APPLICANT

ComcareAnd  

RESPONDENT

INTERLOCUTORY DECISION

Tribunal:Deputy President O'Donovan

Date of Decision:               5 June 2024

Date Reasons Published:      30 July 2024   

Place:Canberra

The Tribunal refuses the applicant’s request under section 41(2) of the Administrative Appeals Tribunal Act 1975 for an order staying or otherwise affecting the operation or implementation of the decision that is the subject of this review.

………….…[SGD]………………
Deputy President O'Donovan

Catchwords

PRACTICE AND PROCEDURE – application for a stay order – myocardial infarction – denied liability to pay compensation - underlying ischaemic heart disease – alleged error of law – inappropriate use of a stay order - stay order application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 41

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19

REASONS FOR DECISION

Deputy President O'Donovan

1. This is an application for a stay pursuant to s 41 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) in relation to a decision made by Comcare on 26 September 2023.

2. The applicant has been a member of the Australian Federal Police. On 16 March 2023 he suffered what is colloquially called a heart attack while at work. He was taken to hospital by ambulance and underwent emergency surgery to clear blockages in a number of his coronary arteries.

3. On 11 May 2023 the applicant underwent a second surgery, and his cardiac symptoms persisted.

4. On 3 July 2023 the applicant submitted a claim for workers’ compensation in respect of a ‘myocardial infarction [the medical term for a heart attack] and related conditions’ sustained on 16 March 2023.

5. On 13 July 2023 Comcare issued a determination that, firstly, accepted liability to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’) in respect of the myocardial infarction that occurred on 16 March 2023. Secondly, the delegate determined that on and from 11 May 2023 the applicant was not entitled to compensation under ss 16 and 19 of the SRC Act in relation to the myocardial infarction. Thirdly, Comcare’s decision denied liability to pay compensation for the underlying ischaemic heart disease, which caused the arterial blockages that resulted in the applicant’s heart attack.

6. The applicant sought review of this determination on 9 August 2023. On 26 September 2023 Comcare affirmed the original determination.

7. The applicant applied to the Tribunal for review of that decision. The application is proceeding through the Tribunal, and both parties have filed their evidence and Statements of Facts, Issues and Contentions.

8. The matter is listed for hearing on 29-31 July 2024.

9. On 20 April 2024 the applicant applied for orders under s 41 of the AAT Act. That section provides that a party may request that the Tribunal make an order staying or otherwise affecting the operation or implementation of the decision to which the proceedings relate. The Tribunal may make such an order if the Tribunal is of the opinion that it is desirable to do so for the purpose of securing the effectiveness of the hearing and determination of the application for review.

10. In his application, the applicant described the orders sought in the following terms:

    The order should stay:

    ·     the decision that the scheduled PCI [percutaneous coronary intervention] surgery on 11 May 2023 displaces the original myocardial infarction injury, which is the basis for:

    o   the determination of no present liability effective 11 May 2023;

    o the discontinuance of s 16 liability effective 11 May 2023; and

    o the discontinuance of s 19 liability effective 11 May 2023.

11. The practical effect of making such orders is unclear, but on their face the orders would seem to result in Comcare being liable to continue paying compensation from 11 May 2023 until the date of the substantive hearing.

12. However, achieving that outcome does not appear to be the primary motivation of the applicant. He says that he seeks the order for the primary purpose of, to use his words, ‘extinguishing that part of the [reviewable decision] that amounts to an egregious error of law’. The applicant regards the factual and legal findings as so ‘egregiously’ wrong that they warrant the Tribunal ‘checking’ Comcare’s behaviour prior to the hearing. The stay will, in the applicant’s submission, ‘provide clarity of the purpose and importance’ of the primary application. If granted, ‘the Respondent will be brought to account’.

13. In essence, the applicant wants me to make preliminary findings in relation the merits of his application, for the purpose of delivering a correction to Comcare.

14. The grounds on which the applicant contends that the stay orders should be made are set out in his stay application of 20 April 2024, and read as follows:

    ·     The reconsideration determination under review affirmed the primary determination findings in all respects without regard for additional evidence available to the decision maker/s;

    ·     The decision under review contains errors of fact and law;

    ·     The assertion of displacement of the original MI injury has no clinical basis and is directly contradicted by available clinical evidence acknowledged by the decision maker/s within the determination where they quote ‘Dr Natoli states that your current symptoms are directly attributed to your myocardial infarction’ as partial basis for rejecting liability for ischaemic heart disease;

    ·     The assertion of displacement of the original MI injury has no legal basis where the doctrine of novus actus interveniens is correctly applied;

    ·     The respondent has refused to issue a reconsideration of own motion to correct these errors of law and fact, despite their own learning management system online training indicating that this is the correct procedure;

    ·     The respondent has provided no basis for their refusal to consent to an order;

    ·     The respondent is not complying with their Model Litigant obligations under the Legal Services Directions 2017;

    · The respondent seeks to defend an untenable position rather than performing their duty to assist the Tribunal to the correct or preferred decision in a non-adversarial manner that is fair, just, economical, informal and quick; AAT Act s.2A(b).

15. The respondent contends that no such order should be made.

16. I can only make such an order if I am of the opinion that it is desirable to do so ‘for the purpose of securing the effectiveness of the hearing and determination of the application for review’.

17. If the order is not desirable for the purpose of securing the effectiveness of the hearing, then it should not be made. I am not satisfied that the stay sought will secure the effectiveness of the hearing. It is sought for a different purpose.

18. The applicant’s view is that the reviewable decision is legally and factually defective. He has advanced grounds for that view which will need to be given careful consideration when the matter comes on for hearing. His arguments include:

    The stay would provide direction to the respondent that steers them back towards actually performing the role required of them.

    It is highly desirable for the Tribunal to utilise authorities available to assist parties within a proceeding to meet their obligations where a party demonstrates a reluctance or incapability to independently achieve that.

19. These submissions highlight that in seeking the stay the applicant is, firstly, asking the Tribunal to form a definite view about the viability of the respondent’s position on a complex legal and factual issue. Secondly, he is seeking to have the stay power used for the purpose of administering a corrective rebuke to the respondent for continuing to seek to preserve a reviewable decision that the applicant regards as egregiously wrong.

20. These are not purposes for which s 41 orders can be used. The statute is clear: orders can only be made under s 41 for the purpose of securing the effectiveness of the hearing and determination of the application for review. It is not a power to be used for the purpose of controlling the conduct of a party, and cannot be used as a means of determining issues ahead of the hearing.

21. The issues in the proceedings are complex and contestable. Determining the extent of liability for a myocardial infarction, which, in this case, is best characterised as an injury suffered in the course of employment as distinct from the underlying ischaemic heart disease, which may or may not be an ailment significantly contributed to by employment, involves issues which can only be resolved by agreement or after a full hearing of the evidence and submissions. The fact that the applicant has good arguments in support of his position does not establish that an order in the nature of a stay is desirable for the purposes of securing the effectiveness of the hearing. An effective hearing can be run in the absence of the grant of the stay orders sought by the applicant.

22. In these circumstances I am satisfied that no stay should be granted ahead of the hearing of this matter on 29 July 2024.

23. The application is dismissed.

I certify that the preceding 23 paragraphs are a true copy of the reasons for the decision herein of Deputy President O’Donovan.

...[SGD]...

Associate

Dated: 30 July 2024

Date of interlocutory hearing:	5 June 2024
Date of final submissions:	5 June 2024
Applicant:	Self-represented
Counsel for Respondent:	Mr Peter Woulfe
Solicitor for the Respondent:	Mr Brett Ablong