Singh and DHL Supply Chain (Australia) Pty Ltd (Compensation) - [2024] AATA 317

Singh and DHL Supply Chain (Australia) Pty Ltd (Compensation) [2024] AATA 317 (1 March 2024)
Division:GENERAL DIVISION
File Number(s): 2023/0895
Re:Paramjit Singh
APPLICANT

AndDHL Supply Chain (Australia) Pty Ltd
RESPONDENT

INTERLOCUTORY DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:1 March 2024
Place:Melbourne

The application under s 41(2) of the Administrative Appeals Tribunal Act 1975 is refused.
.....................[sgd]...................................................
Dr Stewart Fenwick, Senior Member
CATCHWORDS
COMPENSATION – failure to undertake rehabilitation program – suspension of employee’s right to institute proceedings under s 37(7) Safety, Rehabilitation and Compensation Act 1988 – new claim for compensation – further applications for review lodged with Tribunal – Tribunal’s jurisdiction following suspension decision considered
PRACTICE AND PROCEDURE – application for a stay of the implementation of decision – effect of stay of implementation, public interest, consequences for parties considered – stay refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Australian Postal Corporation v Forgie [2003] FCAFC 223
Australian Postal Corporation v Sinnaiah [2013] FCAFC 98
Australian Securities and Investment Commission v PTLZ [2008] FCAFC 164
Australian Securities and Investment Commission v Administrative Appeals Tribunal [2009] FCAFC 185
Birdseye v Tax Practitioner’s Board [2020] FCA 1235
Canute v Comcare [2006] HCA 47
Mihaljcic and Linfox Australia Pty Ltd [2010] AATA 599
Re Pescott and Inspector-General in Bankruptcy [2013] AATA 680
Re Repatriation Commission and Delkou (1985) 8 ALD 454
Re Scott and Australian Securities and Investments Commission [2009] AATA 798
Re Trewin and Secretary, Department of Social Security (1993) 31 ALD 629
Trajkovski v Telstra Corporation Limited [1998] FCA 169
REASONS FOR INTERLOCUTORY DECISION
Dr Stewart Fenwick, Senior Member
1 March 2024
BACKGROUND

This matter concerns a number of decisions made under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of an injury, or injuries, Mr Singh suffered at work in March 2022. More particularly, it concerns the interaction of provisions of the SRC Act, and the procedural powers of the Tribunal under the Administrative Appeals Tribunal Act 1975 (the AAT Act).
The claims and associated matters are as follows:
(a)2023/0895: an application lodged on 15 February 2023 for review of a decision of the Respondent dated 19 January 2023 purporting to suspend Mr Singh’s right to compensation under the SRC Act, pursuant to s 37(7) of that act;
(b)2023/4470: an application lodged on 22 June 2023 for review of a decision of the Respondent dated 15 June 2023 denying liability for a subsequent claim made by Mr Singh for psychological injury in respect of the same workplace circumstances; and
(c)2023/4471: an application lodged on 22 June 2023 for review of a decision of the Respondent dated 15 June 2023 in which it denied any ongoing liability for compensation in respect of Mr Singh’s back condition, for which the Respondent had originally accepted liability, in respect of the same workplace circumstances.
The Respondent lodged documents pursuant to s 37 of the AAT Act (T documents) in matter 2023/0895. Two case conferences were held, and on 14 July 2023 the Respondent wrote to the Tribunal seeking a Direction suspending the latter two applications due to the nature of the decision the subject of the first application.
I conducted a telephone directions hearing on 5 September 2023 at which I brought to their attention the decision in Australian Postal Corporation v Sinnaiah [2013] FCAFC 98 (Sinnaiah). The parties put opposing views about a range of authorities dealing with s 37(7) of the SRC Act.
Subsequently, on 19 September 2023, the Applicant lodged a request for a stay of the Respondent’s decision the subject of matter 2023/0895. The application for a stay seeks an order ‘that that part of the reviewable decision that purports to suspend the Applicant’s right to continue any proceedings under the Safety, Rehabilitation and Compensation Act 1988 be stayed until further or other order of the Tribunal’. It is contended that such an order is both ‘just and equitable’ and appropriate for securing the effectiveness of the hearing.
The Applicant lodged written submissions dated 16 October 2023. The Respondent lodged two sets of written submissions that I will refer to as the ‘jurisdiction’ and ‘stay’ submissions, dated 4 October 2023 and 24 November 2023, respectively.
I conducted a further directions hearing on 2 February 2024 at which brief oral submissions were made by the parties. I also invited the Respondent to provide written submissions at their discretion on the matter of the stay application, and no further submissions were lodged.
Relevant additional background facts are:
(a)Mr Singh made a claim for compensation in respect of an injury to his lower spine, with a date of injury of 22 March 2022, and the Respondent accepted liability for back sprain on 26 April 2022;
(b)the Respondent determined on 16 May 2022 that Mr Singh should undertake a rehabilitation program;
(c)four ‘suitable duties plans’ were issued to Mr Singh during April and May 2022 with respect to his engagement with employment, and two rehabilitation plans were issued, the last being dated 16 May 2022;
(d)Mr Singh was found on two occasions in 2022 to be fit for work of one hour per day, three days per week, and initially undertook return to work obligations but disengaged from his program in June 2022;
(e)Mr Singh was understood to be overseas in India in July 2022, and the Respondent determined on 5 August 2022 that the Applicant failed without reasonable excuse to comply with the program of 16 May 2022, and that his rights to compensation were therefore suspended under s 37(7) of the SRC Act; and
(f)Mr Singh made a new claim for compensation in March 2023 for depression and anxiety, said to have arisen in the context of his physical injury (the subsequent claim denied by the Respondent).
LEGISLATION
Briefly stated, liability arises under s 14 of the SRC Act for different types of compensation in circumstances where a claim for an injury – defined in ss 5A and 5B – has been accepted through a determination (s 61). Compensation may be in the form of medical expenses (s 16), payments for incapacity (s 17), and payments for permanent impairment (s 24). Determinations as to injury can be reconsidered by the person who made the determination, or at the request of a claimant (s 62).
Rehabilitation programs are dealt with in Division 3 of the SRC Act. Relevantly, s 37 provides as follows:
(1) A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program.
…
(3) In making a determination under subsection (1), a rehabilitation authority shall have regard to:
(a) any written assessment given under subsection 36(8);
(b) any reduction in the future liability to pay compensation if the program is undertaken;
(c) the cost of the program;
(d) any improvement in the employee's opportunity to be employed after completing the program;
(e) the likely psychological effect on the employee of not providing the program;
(f) the employee's attitude to the program;
(g) the relative merits of any alternative and appropriate rehabilitation program; and
(h) any other relevant matter.
…
(7) Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program.
(7A) However, subsection (7) does not operate to suspend the employee's right to compensation for the cost of medical treatment that is payable under section 16.
(8) Where an employee's right to compensation is suspended under subsection (7), compensation is not payable in respect of the period of the suspension.
The power of the Tribunal to grant a stay arises under s 41(2) of the AAT Act:
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.
‘Proceeding’ is defined in s 3 as including an application to the Tribunal for review of a decision. Application is not defined, but the manner of making an application to the Tribunal is provided in s 29 of the AAT Act.
ISSUES
The two related issues before me are what the effect of the Respondent’s determination under s 37(7) of the SRC Act is upon the later filed Applications, and – in these circumstances – whether a stay should be granted.
SUBMISSIONS
Applicant
The primary contention in the Applicant’s written submissions is that a decision under s 37(7) of the SRC Act only operates once the Tribunal is satisfied there was a refusal in respect of the rehabilitation program without reasonable excuse (p 2). In the alternative, it is submitted that the decision does not prohibit Mr Singh pursuing the psychological claim, and that by virtue of s 37(7A), Mr Singh is not prevented from instituting proceedings in respect of medical expenses, and – to this extent – the denial of ongoing liability for the back sprain (pp 2-3).
Among the submissions in support of the primary contention are that there is authority for the view that the Tribunal must consider the factual basis of any decision under s 37(7) (Trajkovski v Telstra Corporation Limited [1998] FCA 169, Australian Postal Corporation v Forgie [2003] FCAFC 223 (Forgie), and Mihaljcic and Linfox Australia Pty Ltd [2010] AATA 599), and that its impact is ‘draconian’ (pp 9-12).
It is also submitted that this interpretation of the provision permits all matters lodged at the Tribunal to proceed, which is consistent with the Tribunal’s objective (s 2A of the AAT Act) (p 13). Further, Mr Singh would suffer prejudice in pursuing his other applications at a later point (p 13).
The Applicant cites Sinnaiah and Canute v Comcare [2006] HCA 47 (Canute) (at [10]) in support of the alternative contention, that Mr Singh’s claim in respect of his psychological injury can proceed unhindered (pp 15-17).
With respect to the scope of any suspension under s 37(7) of the SRC Act, the Applicant submits that as medical expenses are preserved due to the operation of s 37(7A), these rights should continue to pertain, despite the Respondent making a determination of no ongoing liability (pp 17-18).
In support of the Application for a stay, the Applicant’s representative made oral submissions at the second telephone directions hearing urging a wide interpretation of the AAT Act, including the concept of a proceeding. Written submissions, more conventionally, cite the factors identified in Re Scott and Australian Securities and Investments Commission [2009] AATA 798 (Scott):
(a)Prospects of success – after setting out some summary factual material, it is contended that there is ‘an arguable case that [Mr Singh] had a reasonable excuse for not continuing to participate’ in his program of rehabilitation (pp 4-6);
(b)Consequences for Applicant if stay refused – in short, it is contended that Mr Singh will be without the benefit of entitlements, placing him at financial disadvantage (pp 6-7);
(c)Public interest – this is served in the Applicant’s submission by effective use of the Tribunal’s resources to consider all the claims at the same time (p 7);
(d)Consequences for the Respondent – the Applicant is unable to identify any adverse consequences for the performance of the Respondent’s business were the stay not to be granted (p 7); and
(e)Whether the review would be rendered of no value – were Mr Singh to succeed in respect of the s 37(7) suspension, he would receive benefits until the time of the decision on liability, but will incur additional cost in then pursuing the other matters (p 8).
Accordingly, it is desirable to ‘make an order that that part of the s 37(7) reviewable decision that purports to suspend the Applicant’s right to institute and continue and proceedings under the SRC Act be stayed …’ (p 8).
Respondent
The Respondent’s primary contention remains as expressed in its correspondence to the Tribunal; the Applicant is prevented by s 37(7) of the SRC Act from progressing the later applications.
It is contended in the jurisdiction submission that Sinnaiah demonstrates that the Full Court was prepared to find the provision in the legislation ‘operated as an important factor in encouraging injured workers to engage in rehabilitation programs’ [24]. Further, Mr Singh’s circumstances stand apart from those in Sinnaiah as there is a ‘close causal link’ between the physical and psychological injuries claimed, and the latter should be understood as reasonably amenable to a rehabilitation plan [26].
In its stay submissions, the Respondent notes that the focus of s 41(2) of the AAT Act is the operation of a specific decision, and is for the purpose of securing the effectiveness of the related application for review [7]. The Respondent contends that it is self-evident how a stay would ‘in any way have any influence upon the effectiveness of the hearing’ [8] (albeit without stating what the evident conclusion is). It is submitted that it is inevitable that multiple hearings would need to be conducted by the Tribunal [10].
The Respondent submits that the various authorities cited in the Applicant’s submissions are distinguishable on a range of grounds [15]-[19]. After further detailed consideration of specific authorities, the Respondent contends that no reasoning can be identified that supports the joint hearing of all applications [33]. Finally, it is contended that, self-evidently again, the most practical action is for Mr Singh to take steps to engage with his rehabilitation program [34].
CONSIDERATION
The decision in Forgie clarified a matter of jurisdiction that had arisen in respect of s 37 of the SRC Act. The Full Court confirmed that a determination must be made in order for an employee’s rights to be suspended as set out in s 37(7) [40], [56], [63], and such decisions are thereby within the Tribunal’s jurisdiction [24]. For this reason, the Applicant’s primary contention is fundamentally flawed. The Full Court makes reference to rights not being lawfully suspended until an employee’s refusal has been evaluated, but this is merely to reinforce the need for a determination to be made in the first instance. To give this reasoning greater force is to misread the decision.
While the Respondent sought to grapple with Sinnaiah in its submissions, those submissions, too, appear to contain a fundamental misreading of the decision. The Full Court identified that s 37 needs to be read as a whole, and the rehabilitation program referred to in s 37(7) is the one in respect of which a determination will have been made under s 37(1) [26]. It then goes on to state explicitly that the words ‘under this act’ in s 37(7) operate to distinguish rights accruing elsewhere, and ‘were not inserted to extend the suspension beyond the injury for which the rehabilitation program is ordered’ [30]. This reading is reinforced by the preservation in s 37(7A) of the entitlement to the cost of medical treatment [31].
The Full Court then further stressed the importance of placing limits on the potentially draconian effect of a wide interpretation [32]. In short, the court noted that ‘[t]he subsection does not speak of all rights, nor does it speak of rights in respect of all injuries’. This paragraph might suggest that a suspension may affect injuries that have a relationship to the determination giving rise to the suspension, however this – with respect – appears to misapply the logic being applied. That is, simply identifying a link between Mr Singh’s later claim for psychological injury to the rehabilitation program, does not lead to the conclusion for which the Respondent contends.
This is due to the nature of decision-making under the SRC Act. As the Applicant has essentially submitted, each claim lodged by an employee is treated as a claim for a separate injury. The High Court addressed this succinctly in Canute [10]. Plainly, in circumstances where a rehabilitation program has been prepared in respect of only one accepted (physical) injury, it is not realistic to argue that a later claim for a separate injury cannot be dealt with.
Finally, I do not consider it is necessary to adopt or reject the Respondent’s further contentions about the incentive it submits is inherent in the rehabilitation regime under the SRC Act. None of the judicial authorities appear to do so, and it is not necessary given the manner in which these decisions have dealt with s 37.
I now turn to Mr Singh’s specific circumstances and claims. It appears clear enough from the authorities that the natural effect of the decisions made with respect to the Applicant are as follows:
(a)2023/0895 proceeds and the Tribunal can and should review the suspension under s 37(7);
(b)2023/4470 proceeds as the Applicant is entitled to have the refusal in respect of a separate injury considered by the Tribunal; and
(c)2023/4471 does not proceed as it is captured by the suspension determination.
I now turn to the question of a stay. The submissions indicate that the Applicant seeks to be permitted, in short, to proceed with all matters lodged in the Tribunal. Given my findings immediately above, its practical effect – if granted – would be to permit Mr Singh to proceed with the application challenging the determination that the Respondent has no ongoing liability in respect of the back injury. Clearly enough, such a decision would – on its face – be contrary to the natural effect of s 37(7) of the SRC Act.
The Respondent has chosen not to make substantive submissions, but I agree with the limited contentions made with respect to the language of s 41(2) of the AAT Act. That is, ordinarily, a stay would suspend the operative decision, and it would need to be demonstrated that an order of that kind was necessary for securing the effectiveness of the hearing.
While the matters identified in Scott are conventionally referred to, it has also been noted repeatedly that the Tribunal must satisfy itself as to whether the specific statutory purpose of a stay has been made out (Re Trewin and Secretary, Department of Social Security (1993) 31 ALD 629, [32] (Trewin), Australian Securities and Investment Commission v PTLZ [2008] FCAFC 164, [34]-[35], Australian Securities and Investment Commission v Administrative Appeals Tribunal [2009] FCAFC 185 [49]-[50], Birdseye v Tax Practitioner’s Board [2020] FCA 1235 [20]).
I also note that in Scott, Justice Downes also referred to the practical effect of granting, or not granting a stay, in terms of whether a hearing might be ‘rendered nugatory or pointless’, in the absence of such an order [12]. Another approach has been to describe the power to grant a stay as enabling ‘the tribunal to preserve the status quo pending the hearing and determination of the application for review, where the ‘effectiveness’ of the decision may be jeopardised if the decision, in the meantime, is carried into operation’ (Re Repatriation Commission and Delkou (1985) 8 ALD 454 [8], cited in Trewin [24]).

In the present circumstances, I do not consider the absence of a stay to have the effect of reaching the higher water mark consideration of rendering a hearing on the suspension pointless. Further, the status quo is the suspension of certain rights consistent with the ordinary interpretation of a statutory provision. I accept that there is a practical consequence of this for Mr Singh, however that would appear to be the natural effect of s 37(7) of the SRC Act. The public interest, if it arises in any sense in this matter, arguably is best served by adhering to the process as established by s 37.
I do not consider that in the circumstances of this matter the prospects of success for Mr Singh are necessarily pertinent, and in any event would be outweighed by the importance of giving the words of the suspension provision their natural meaning. Indeed, were a stay imposed, it would lead to a reinstatement of, at a minimum, the Applicant’s right to medical expenses. It would also necessarily open up other avenues of compensation under the SRC Act, contrary to the terms of s 37(7).
For these reasons I will not grant a stay.
A final matter to consider is what effect, if any, consideration of the objects of the AAT Act as stated in s 2A may have upon disposition of the matters here. The critical aspect relevant here is the objective of carrying out Tribunal functions in a way that is economical and quick (s 2A(b)). It is generally accepted the provision is ‘facultative’, and ‘exhortatory’; meaning that it is in the AAT Act to support achievement of the several stated objectives, and it therefore has a largely procedural (rather than substantive) character (Re Pescott and Inspector-General in Bankruptcy [2013] AATA 680). This follows from the fact that the various objectives may not all be readily achieved simultaneously.
A more important consideration in Mr Singh’s matters is that the AAT Act needs to be read alongside any other relevant legislation. I have addressed above the substantive issues around the effect of s 37(7) of the SRC Act. In short, to apply a procedural power to resolve a situation deriving from the effect of a provision in that Act would require, I consider, specific statutory support, which is absent.
CONCLUSION
It follows from the above that the summary I provided above at [30] should guide the further management of Mr Singh’s applications. I also do not consider it necessary to make any specific order as originally sought by the Respondent, given my interpretation of s 37(7) of the SRC Act.
INTERLOCUTORY DECISION
For the reasons given above, the Tribunal refuses to grant the application under s 41(2) of the Administrative Appeals Tribunal Act 1975.

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

....................[sgd]....................
Associate
Dated: 1 March 2024

Date final submissions received: 16 March 2023

Counsel for the Applicant

Solicitors for the Applicant:

Counsel for the Respondent

Kim Bradey

Angela Sdrinis Legal

Charlie Clarke

Solicitors for the Respondent:

HBA Legal