Smaistrla and Optus Administration Pty Ltd (Compensation)

[2018] AATA 1307

Smaistrla and Optus Administration Pty Ltd (Compensation) [2018] AATA 1307 (2 May 2018)

Division:GENERAL DIVISION

File Number(s):      2015/2023; 2016/2411

Re:Nadine Smaistrla

APPLICANT

AndOptus Administration Pty Ltd

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:2 May 2018

Place:Melbourne

The Tribunal directs that a directions hearing by telephone be held at a date in early November 2018 to be advised to parties to determine availability of witnesses for a resumption of the substantive hearing early in 2019.

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Senior Member D. J. Morris

PRACTICE AND PROCEDURE – extensive procedural history – hearing has commenced – self-represented applicant – medical issues affecting applicant’s ability to conduct case – request for dismissal for failure to proceed – objectives of the Tribunal – obligations on the Tribunal – need for temporal progress – directions given for resumption

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 34J, 42A(2), 42A(5)(a), 42A(7)
Safety, Rehabilitation and Compensation Act 1988, s 14

Cases

Rajski v Scitec Corporation Pty Ltd [1986] NSWCA Unreported – 16 June 1986

REASONS FOR DECISION

Senior Member D. J. Morris

2 May 2018

1. These are the reasons for a procedural decision made at a directions hearing held by telephone on 30 April 2018.  The Applicant had advised the Tribunal prior to the hearing that, owing to medical reasons, she would be unable to participate.  The Respondent was represented by Mr Paul Mentor of Clarke Legal. The Tribunal considers it is in the interests of both parties, and particularly the Applicant given she was not a participant, to publish the reasons for this procedural decision, together with the background to the application for review.

2. This application for review relates to a claim for injuries sustained on 11 October 2013 and has a relatively lengthy procedural history.  The Applicant’s substantive case seeks reconsideration of a determination made on 19 February 2015 that the Respondent is not liable to pay compensation in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of ‘high levels of anxiety symptoms and depression’, claimed to have been sustained approximately 16 months earlier.  A review officer of the Respondent affirmed the decision on 24 March 2015, and that is the decision the Applicant has asked the Tribunal to review.  Key aspects of the procedural history of this matter follow.

3. The legal representative of the Applicant lodged the application for review on 29 April 2015.  On 10 May 2016 the legal representative lodged a notice to the Tribunal advising they had ceased to act for Ms Smaistrla.

4. A directions hearing by telephone was scheduled for 12 July 2016 but was re-listed for 9 August 2016 to give the Applicant the opportunity to engage new legal representation.

5. A directions hearing by telephone was held on 14 October 2016.  Directions were given to parties at that time to ascertain the availability of witnesses and to obtain witness statements.

6. On 17 October 2016 the Tribunal advised the parties that Ms Smaistrla’s application was listed for hearing in the weekdays from18 to 24 April 2017.

7. On 21 December 2016 a further directions hearing by telephone was held at the Applicant’s request regarding the availability of witnesses.

8. The Tribunal issued directions for witness statements from the Applicant by 31 January 2017 and from the Respondent by 31 March 2017.

9. A directions hearing by telephone was scheduled for 7 February 2017 but was adjourned at the request of the Applicant owing to a physical injury unrelated to the claim the subject of this review.

10. A further directions hearing by telephone was held on 15 March 2017.

11. A directions hearing by telephone was scheduled for 28 April 2017 but the Applicant advised she was unavailable.

12. A directions hearing by telephone was held on 2 May 2017.

13. The matter was listed by the Tribunal for hearing in the period from 11 to 15 September 2017.

14. A directions hearing by telephone was held on 7 July 2017.

15. The hearing commenced on 11 September 2017. The Applicant sought leave of the Tribunal to tender a large number of documents not previously provided to the Tribunal or the Respondent. The Respondent objected to the documents being tendered. The Tribunal refused leave, instead suggesting that the Tribunal adjourn for a short period to allow the Applicant to discuss with the Respondent particular documents in the hearing room that might be relevant to submissions and evidence, and leave could then be sought during the hearing to admit those. The Applicant expressed the view that the process of having her application heard was causing her added stress but agreed to this proposal, requesting that officers of the Tribunal remain present as witnesses. The Tribunal explained to parties the provisions of section 34J of the Administrative Appeals Tribunal Act 1975 (the AAT Act):

    34J Circumstances in which hearing may be dispensed with

    If

    (a)it appears to the Tribunal that the issues for determination on the review of a decision can be adequately determined in the absence of the parties; and

    (b)         the parties consent to the review being determined without a hearing;

    the Tribunal may review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding the hearing.

16. The Tribunal advised that a section 34J review, ‘on the papers’, could only occur with the agreement of both parties. The Applicant did not agree to this potential option of her application being considered under this provision.

17. The Tribunal adjourned the hearing and parties then commenced discussions about which, if any papers, they would agree could be tendered.  The Applicant subsequently advised the Tribunal that she had withdrawn from this process.

18. The hearing resumed on 13 September 2017, but by telephone.  The Applicant advised Tribunal officers prior to the hearing that she would not attend by telephone, owing to her medical situation.

19. The Tribunal vacated the resumed hearing dates and instead held a directions hearing on 15 September 2017 for case management purposes.  The Applicant again advised the Tribunal that she was unable to participate owing to her health and that she had been admitted to hospital.  The Tribunal directed that the Applicant provide a medical certificate from her treating psychiatrist by 22 September 2017. 

20. On 16 September 2017 Dr Graham Wong, psychiatrist, provided a letter to the Tribunal confirming that the Applicant had been admitted to hospital for the period 13 to 16 September 2017 and stated:

    I do not believe she will be able to participate in any hearings until early November 2017.  I intend to review her mid-October 2017 and will be in a better position to recommend when she will be able to safely and appropriately participate at that stage.

21. A directions hearing by telephone was held on 25 September 2017 but, on the basis of the medical advice, the Tribunal excused the Applicant from participating (unless she chose to).  After the directions hearing, the Tribunal issued a direction that the Applicant provide to the Tribunal a letter from Dr Wong or another treating psychiatrist detailing a medical opinion on the Applicant’s capacity to continue with her application, a suggested timeframe within which the Applicant may be able to proceed with her application, and any other information the treating psychiatrist may consider relevant.  The direction also advised parties that a further directions hearing for case management purposes would be held on 31 October 2017.

22. On 23 October 2017 the Applicant provided to the Tribunal a further medical report from Dr Wong, dated 18 October 2017, which stated:

    At this point in time she [the Applicant] does not have the capacity to appropriately participate in the process to represent herself.  Nor do I think she has the emotional capacity to cope with this process currently.  I suggest Ms Smaistrla would not be able to participate well enough for another six months.  This time frame has been decided upon based on Ms Smaistrla’s time frames for response to date and a proposed therapeutic intervention strategy.  It is proposed that she embark on a more specific psychological preparation for making progress.

23. On 31 October 2017 a directions hearing by telephone took place.  The Applicant did not participate owing to her medical circumstances.  The Tribunal made a further direction that the Applicant provide a report from Dr Wong or another treating psychiatrist on her capacity to continue with her application and a suggested timeframe within which she may be able to proceed with her application by 16 April 2018, and that a directions hearing would be held on 30 April 2018 to consider the Applicant’s capacity and timelines for the resumed hearing.

24. On 19 April 2018 the Tribunal received a further medical report directly from Dr Wong dated 3 April 2018 in which he stated that he had reviewed his patient that day.  Dr Wong  stated:

    She has not been able to review relevant material to prepare for the hearing.  She remains actively depressed and copes poorly with basic functioning day to day.  She feels “re-traumatised” by the process and cannot tolerate the anxiety of going over the material required for preparation.  She has avoided this entirely.…

    She finds herself in a double bind and does not feel she can progress with adequate treatment with the constant interference of this process re-traumatising her repeatedly.…

    I don’t feel I can adequately comment as to when she may be able to participate well enough in the required process. 

25. A directions hearing by telephone took place on 30 April 2018.  The Respondent participated but the Applicant advised the Tribunal in writing the previous day that she was ‘currently not in a fit state to address matters’.

26. The Tribunal asked the Respondent for its view about the possibility of a hearing on the papers, under section 34J, noting that the Applicant had previously advised in the hearing she did not consent to such a hearing but that the Respondent had not at that time expressed an opinion. Mr Mentor said that he did not have instructions on this matter, but he considered it would be unlikely that the Respondent would agree.

27. At the hearing on 30 April 2018, the Respondent outlined the history of the matter and then submitted that the Tribunal should exercise its discretionary power under section 42A(5)(a) of the AAT Act. That section states:

    Dismissal if applicant fails to proceed or fails to comply with Tribunal’s direction

    (5)         If an applicant for a review of a decision fails within a reasonable time:

    (a)       to proceed with the application; or.

    […]

    the Tribunal may dismiss the application without proceeding to review the decision.

    Consideration

28. The Tribunal noted that the delay in resuming the hearing is regrettable for a number of reasons, not least that the memories of witnesses fade. Several of the proposed witnesses no longer worked for the Respondent and at least one had been overseas, which was one reason for delays in listing the matter for hearing in 2017. The Tribunal also noted that section 2A(b) of the AAT Act has as an objective of the Tribunal that it must pursue a mechanism of review that is ‘fair, just, economical, informal and quick’ (emphasis added).

29. The Tribunal stated that it must take into account the medical opinion of the Applicant’s treating psychiatrist and decided that, on balance, it would be unreasonable, at this stage, to dismiss the application under section 42A(5)(a) of the AAT Act.

30. Without making a specific submission on the provision, Mr Mentor referred the Tribunal to section 42A(2) of the AAT Act, which provides the Tribunal with the discretion to dismiss an application for review of a decision if a party fails to appear. The Tribunal noted that section 42A(2) must be read with section 42A(7), which requires the Tribunal to be satisfied before exercising the power to dismiss for a party’s non-appearance that appropriate notice of the hearing was given. The Tribunal noted that ample written notice was given and a reminder sent electronically to parties on the previous working day, but also that the Applicant had made written contact with the Tribunal and had furnished it with a medical report.

31. In regard to whether the discretion in section 42A(2) of the AAT Act was relevant to this matter, the Tribunal took the view that this power should generally only be exercised in cases where an applicant had been given prior notice of a hearing and (i) had simply not appeared without any contact with the Tribunal Registry or (ii) where an applicant had made clear that he or she was not intending to participate. The Tribunal did not consider that this was a case where an applicant was being contumacious in regard to the authority of the Tribunal.

32. The function of the Administrative Appeals Tribunal is to establish a mechanism for persons to have access to merits review of decisions, where that is provided in the law.  However, the onus is on persons who lodge applications to be ready to bring their matters forward in a timely way.  The Tribunal does not consider, on reviewing the procedural history of this matter, that the Applicant has not had regard for the authority of the Tribunal.  However, the simple fact is that the Tribunal cannot conduct a case on behalf of a party who is unable, for whatever reason, to do so themselves or to have a representative do so on their behalf.

33. Since its establishment in 1975 the Tribunal has endeavoured, consistent with its purpose, to provide processes which are relatively informal and undaunting to applicants, compared with what they may encounter in formal court proceedings.  However, informality and taking account of an applicant being unrepresented cannot be allowed to infect the basic principles of fairness to all parties in conducting a review of a decision.

34. Courts and tribunals have periodically considered the general principles governing the role of the presiding member or judge in a civil or administrative proceeding involving an unrepresented litigant.  In Rajski v Scitec Corporation Pty Ltd (unreported, NSWCA, 16 June 1986), Samuels JA said [at 14]:

    In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent … At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.

35. These general principles expressed by the Court are relevant to the operation of this Tribunal.  Procedural fairness is essential, but that concept means fairness to all parties appearing in a matter, and the Tribunal runs the risk of failing to apply this measure evenly if, in taking account of an unrepresented applicant who is unfamiliar with the processes of the Tribunal, it has the effect of giving that party an unfair ‘positive advantage’ or ‘privileged status’, to use His Honour’s terms above.

36. The Tribunal is a mechanism for an applicant to request a review of an administrative decision, and for maker of the decision under review to respond.  It is the applicant who chooses to initiate the process of review, an independent merits-review option available to them by force of the relevant legislation.  A party, whether self-represented or with other representation, must be capable of raising pertinent matters in a hearing that they wish the Tribunal to consider regarding their contention, expressed in lodging their application for review, that the decision under review was a wrong decision.

37. It is not reasonable to either an applicant or respondent, or another party to a proceeding, for a matter not to have some temporal finality.  The Tribunal is not unsympathetic to the fact, as expressed by the Applicant’s medical adviser, that there is a significant medical element affecting her capacity to conduct her application.  However, ultimately the objectives of the Tribunal require that there must be progress with conducting a review, especially one with a lengthy procedural history and where the hearing had commenced.  The Tribunal cannot adjourn a matter indefinitely.

    DECISION

38. The Tribunal directs that a directions hearing by telephone be held at a date in early November 2018 to be advised to parties to determine the prospects for a resumption of the substantive hearing early in 2019.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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Associate

Dated: 2 May 2018

Date(s) of hearing:	30 April 2018
Solicitors for the Respondent:	Paul Mentor