PRACTICE AND PROCEDURE – application for dismissal under section 42A(5) of the Administrative Appeals Tribunal Act 1975 – whether the applicant has failed to proceed with her application – whether the applicant has failed to comply with Tribunal directions – discretion to dismiss an application is enlivened – whether dismissal is the proper remedy – prejudice to the respondent – merits of the application – best efforts of the applicant to assist the Tribunal – dismissal as the last resort – application dismissed
The Applicant, Dr Arlene Taylor, claimed compensation for a psychological injury said to have occurred at her workplace, the Department of Health (Department). Dr Taylor’s claim was refused by the Respondent, Comcare, both initially and on reconsideration. In December 2018, Dr Taylor made an application to the Administrative Appeals Tribunal for review of Comcare’s decision.
Following a preliminary conference held by the Tribunal in March 2019, and the provision by Dr Taylor of briefing letters to a medical professional as directed by the Tribunal, Dr Taylor has taken no substantive steps in the proceeding and failed to comply with the Tribunal’s directions, including failing to file and serve her witness statement, any lay witness statements, any medical reports and any other evidence that she wishes to rely on in support of her application. This is despite the Tribunal closely managing the application over this period, including the holding of multiple directions hearings and the varying of the initial directions from March 2019 on numerous occasions over eight months in order for Dr Taylor to provide her evidence to the Tribunal and Comcare.
Most recently, Dr Taylor failed to comply with the Tribunal’s directions made on 17 January 2020 for her evidence to be filed and served in the proceeding. As a result, Comcare applied to the Tribunal for dismissal of Dr Taylor’s application pursuant to subsection 42A(5) of the Administrative Appeals Tribunal Act1975 (AAT Act), because Dr Taylor has failed within a reasonable time to…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Taylor and Comcare (Compensation) [2020] AATA 430
Case
[2020] AATA 430
Decision Date
CaseChat Overview and Summary
This matter concerned an application by Dr Taylor to the Administrative Appeals Tribunal (AAT) for review of a decision by Comcare to deny her workers' compensation claim. Comcare had denied the claim on the basis that Dr Taylor's condition, described as depression and anxiety with suicidal ideation and an eating disorder, was the result of reasonable administrative action taken in a reasonable manner by her employer, the Department. The AAT was required to determine whether its discretion to dismiss Dr Taylor's application under section 42A(5) of the *Administrative Appeals Tribunal Act 1975* was enlivened, and if so, whether dismissal was the appropriate remedy.
The court considered whether Dr Taylor had failed to proceed with her application within a reasonable time and failed to comply with Tribunal directions. The AAT noted that Dr Taylor had only complied with one of the initial directions made in March 2019, and despite numerous variations of these directions over a period of approximately twelve months, she had failed to provide any substantive evidence to advance her application. The Tribunal also considered the objectives of the AAT Act, including providing a fair, just, economical, informal, and quick mechanism of review, and ensuring proportionality to the importance and complexity of the matter.
The Tribunal found that Dr Taylor had failed to proceed with her application in a reasonable or timely manner, having not taken any substantive step to advance it for almost a year since the initial directions were made. Despite multiple extensions and accommodations for her personal circumstances, delayed document production, and other litigation, Dr Taylor had not complied with her obligations. The Tribunal concluded that it could not be satisfied that Dr Taylor would comply with any future directions, and therefore, its discretionary power to dismiss the application had been enlivened and should be exercised.
The Tribunal dismissed Dr Taylor's application without proceeding to review Comcare's decision.
Orders
Orders of the court
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Background
Background to the litigation
The issues before the Tribunal were whether the Tribunal’s discretion to dismiss an application pursuant to subsection 42A(5) of the AAT Act is enlivened and, if it is so enlivened, whether the Tribunal should dismiss Dr Taylor’s application without proceeding to review the decision pursuant to subsection 42A(5) of the AAT Act. BACKGROUND On 15 February 2016, Dr Taylor commenced employment with the Department. On 16 May 2018, Dr Taylor made a Workers’ Compensation Claim with Comcare for a condition she described as ‘depression and anxiety with suicidal ideation and eating disorder (anorexia)’, reported to have been sustained on 28 February 2018 due to ‘behaviours and attitudes of workplace colleagues, and general workplace response’.[1] [1] Document numbered ‘T4’, pages 18-25, in the bundle of documents lodged with the Tribunal on 7 February 2019 pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. On 28 August 2018, Comcare denied Dr Taylor’s claim for compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). In its determination, Comcare recognised that Dr Taylor suffered an ailment under the SRC Act and that her employment was significant in the causation of Dr Taylor’s condition. However, Comcare found that Dr Taylor’s injury was the result of reasonable administrative action, undertaken in a reasonable manner by the Department, pursuant to section 5A of the SRC Act. That administrative action was the Department’s request for Dr Taylor to attend a Fitness for Continued Duty appointment with an Independent Medical Examiner to provide the Department with guidance regarding Dr Taylor’s needs and safety when working from home and in the office.[2][2] T38, pages 632-635. On 23 October 2018, pursuant to Dr Taylor’s request for reconsideration, a delegate of Comcare affirmed its decision refusing compensation under the SRC Act.[3] The reviewable decision found that, while Dr Taylor’s employment was the environment where she experienced heightened psychological symptoms, due to her strong disposition to the condition for which she claimed compensation, a matter to be taken into account under subsection 5B(2) of the SRC Act, the employment contribution was not significant. Additionally, Comcare said that even if the employment contribution was found to be significant, it was likely that Dr Taylor’s condition resulted from reasonable administrative action undertaken in a reasonable manner in respect of her employment. [3] T56, pages 1414-1421. On 21 December 2018, Dr Taylor applied to the Tribunal for review of Comcare’s decision.[4] [4] T2, pages 6-8. On 7 March 2019, the Tribunal held a first preliminary conference in the proceeding and directions were made in the following terms:[5]1. On or before 15 March 2019, the Respondent must advise the Tribunal and the other party of the date and time of the medical appointment made for the purposes of the application, together with the name of the examining doctor.2. On or before 15 March 2019, the Applicant must give to the Tribunal and the other party copies of the briefing letters to Prof Sahoo, together with any attachments.3. On or before 17 April 2019, the Respondent must give to the Tribunal and the other party copies of the documents obtained from the employing agency pursuant to a notice issued under section 71 of the SRC Act 1988, indexed and paginated.4. On or before 16 May 2019, the Applicant must give to the Tribunal and the Respondent a statement from the Applicant.5. On or before 16 May 2019, the Applicant must give to the Tribunal and the other party any lay witness statement(s) on which she will seek to rely OR advise that she does not intend to provide such statements.6. On or before 16 May 2019, the Applicant must give to the Tribunal and the other party a copy of any medical report on which she intends to rely OR advise that she does not intend to provide such report.7. On or before 16 May 2019, the Applicant must give to the Tribunal and the other party any other material on which she will seek to rely OR advise that she does not intend to provide such further material. 8. On or before 13 June 2019, the Respondent must give to the Tribunal and the other party any lay witness statement(s) on which it will seek to rely OR advise that it does not intend to provide such statement(s). [5] Document marked ‘R6’ in the Affidavit sworn by Athena Cains on 11 February 2019 (First Affidavit).
Evidence
Evidence Before The Court
As set out above, there were five specific actions set out in the directions made on 7 March 2019 for Dr Taylor to complete; for three of these she could alternatively inform the Tribunal that she did not intend to provide the requested material. On the same day the directions were made, Dr Taylor complied with direction number two in the 7 March 2019 directions and provided the Tribunal and Comcare with copies of the briefing letters to Professor Sahoo. This is the only direction Dr Taylor has complied with in the proceeding in the almost twelve months since these first directions were made by the Tribunal. Dr Taylor has failed to comply with the remaining four directions first made by the Tribunal on 7 March 2019. That is, Dr Taylor has not filed and served her statement, any lay witness statements, any medical report or any other material on which she intends to rely in her application (described in these reasons as Dr Taylor’s Evidence). Dr Taylor has also not informed the Tribunal or Comcare that she does not intend to produce such material. Dr Taylor’s failure to comply with these directions, subsequently varied numerous times by the Tribunal, and to provide her Evidence forms the basis for Comcare’s application for dismissal. Between 20 May 2019 and 17 January 2020, the Tribunal has repeatedly varied its directions for the provision of Dr Taylor’s Evidence. In total, the initial directions made by the Tribunal on 7 March 2019 regarding Dr Taylor’s Evidence have been varied nine times, with six of those times being at the request of Dr Taylor, one made following Dr Taylor’s non-appearance at a directions hearing and twice due to the delay of the Department in complying with a summons issued by the Tribunal at the request of Dr Taylor. For completeness, the Tribunal sets out the following chronology of these varied directions:(i)On 20 May 2019, at Dr Taylor’s request, the Tribunal varied the directions made on 9 March 2019 so that her Evidence was to be provided by 28 June 2019.[6] This request was said to be due to the vast number of documents Comcare had sought under summons and it making the matter ‘extremely complicated’, and the Department refusing to provide documents under a Freedom of Information application that would require a summons. Comcare provided its consent to Dr Taylor’s request;[6] Document marked ‘R15’ in the First Affidavit.(ii)On 26 June 2019, at Dr Taylor’s request, the Tribunal at a directions hearing varied the 20 May 2019 directions so that her Evidence was to be provided by 1 August 2019.[7] This request was made in order to collect material from twenty-eight summonses issued to offices of the Department on the application of Dr Taylor that were returnable on 1 July 2019. Comcare consented to Dr Taylor’s request and to the request for the second preliminary conference to be re-listed for October 2019, but noted the substantial delay in the proceeding;[7] ibid., at ‘R26’.(iii)On 22 July 2019, at a directions hearing regarding, in part, the issuing of the summonses on officers of the Department, the Tribunal varied the 26 June 2019 directions so that her Evidence was to be provided by 20 September 2019, in circumstances where it was apparent that the Department would be unable to produce the requested documents on time;[8][8] Attachment ‘A’ to Comcare’s submissions dated 14 February 2020. (iv)On 17 September 2019, at Comcare’s request due to the Department producing further documents under summons, the Tribunal varied the 22 July 2019 directions so that Dr Taylor’s Evidence was to be provided by 21 October 2019;[9][9] Document marked ‘R36’ in the First Affidavit.(v)On 22 October 2019, pursuant to Dr Taylor’s failure to comply with the directions regarding her Evidence, the Tribunal listed and then vacated a non-compliance hearing because the Department advised that further documents would be produced. The Tribunal varied the 17 September 2019 directions so that Dr Taylor’s Evidence was to be provided by 22 November 2019. The Department’s final physical tranche of material produced under summons was filed with the Tribunal on 25 October 2019, noting that the Department produced further minimal documentation by email to the Tribunal and the parties on 17 December 2019;[10][10] ibid., at ‘R40’.(vi)On 21 November 2019, at Dr Taylor’s request due to ‘personal reasons’, the Tribunal varied the 22 October 2019 directions so that her Evidence was to be provided by 3 December 2019. Comcare did not object to this request, but noted its concerns about the delays in the proceeding and specifically the failure to comply with the directions regarding Dr Taylor’s Evidence;[11][11] Attachment ‘B’ to Comcare’s submissions dated 14 February 2020. (vii)On 6 December 2019, at Dr Taylor’s request due to her non-compliance with the directions made on 21 November 2019 and her not being able to file her statement as a result of ‘distressing injuries caused by my employer’, the Tribunal varied those directions so that Dr Taylor’s Evidence was to be provided by 13 January 2020.[12] Following the Tribunal’s request for Dr Taylor to specify a date for compliance, Dr Taylor listed 17 January 2020. Comcare consented to the requested extension, but only until 6 January 2020; the Tribunal ultimately gave Dr Taylor until 13 January 2020 to comply. Comcare also said that given the many extensions consented to so far, any further request would be objected to by Comcare;[12] Document marked ‘R54’ in the First Affidavit.(viii)On 17 December 2019, following Dr Taylor’s objection to a medical report filed and served by Comcare, the Tribunal held a directions hearing to address Dr Taylor’s request to stay the proceeding until a new claim she had made progressed to the Tribunal and, amongst other things, her threats to sue Comcare’s medical expert following her report and seeking a reprimand of Comcare’s representative. On 16 December 2019, Dr Taylor informed the Tribunal that she would not attend the directions hearing and the Tribunal refused her request for an adjournment. Dr Taylor ultimately attended this hearing at which the Tribunal determined the proceeding should not be stayed, including because of the significant delays already encountered in the proceeding, and, in relation to Dr Taylor’s objection to the medical report filed by the Comcare, noted that it was open to Dr Taylor to provide a medical report from an expert briefed by her as had been provided for in each of the directions issued since 7 March 2019. Dr Taylor requested, and was granted, an extension of time to provide any such medical evidence by 17 February 2020; the balance of Dr Taylor’s Evidence remained due by 13 January 2020;[13] and[13] ibid., at ‘R58’.(ix)On 17 January 2020, the Tribunal held a directions hearing following both parties’ non-compliance with directions; Dr Taylor had not filed or served her Evidence (excluding her medical evidence, which was not yet due to be provided) and Comcare requested a three-day extension to file its lay witness statement, which was granted by the Tribunal. On 15 January 2020, in advance of this directions hearing, the Tribunal sent an email to the parties in the following terms:[14] [14] ibid., at R61.The Tribunal notes that multiple directions remain outstanding in this matter. The Tribunal also notes that these Directions have been the subject of multiple extensions of time. Further, it is unclear as to whether the Respondent’s request [for an extension of time to file a lay witness statement] as set out in their abovementioned email is made with the consent of the Applicant.In respect of the outstanding directions, the Tribunal notes that Dr Taylor is non-compliant with Directions #1, 2 and 4 made on 6 December 2019. It is noted that Direction #3 was, in effect, varied by Direction #2 of 17 December 2019 and therefore, the Applicant has not fallen into non-compliance in respect of Direction #3.In the circumstances, the Tribunal requests that Dr Taylor provide her views on the Respondent’s request. Further, the Tribunal requests Dr Taylor provide an explanation for the delay in compliance with the Directions made on 6 December 2019 and advise the Tribunal of a date by which she can comply with those directions. It is noted that a conference is listed in this matter on 27 February 2020 and the Tribunal will be reluctant to grant an extension of time that will jeopardise that listing.If no correspondence is received by 1.00pm tomorrow, the matter will be listed for a non-compliance directions hearing at 9.3am on Friday, 17 January 2020 to address the issue of both parties non-compliance and set down a further timetable for the outstanding directions. Dr Taylor failed to appear at the directions hearing on 17 January 2020, despite being sent a listing notice on 16 January 2020 by the Tribunal as foreshadowed in the above email. The Tribunal at the hearing also attempted to contact Dr Taylor by telephone on multiple occasions. The Tribunal varied the directions made on 6 December 2019 so that Dr Taylor’s Evidence (excluding her medical evidence) was to be provided by 31 January 2020. Comcare asked the Tribunal whether there was utility in it now bringing an application for dismissal. The Tribunal said, at that stage, it would treat such application with caution and confirmed that it would, in its directions issued that day, put Dr Taylor on notice of its dismissal power if there was further non-compliance with those directions for her Evidence. The Tribunal included the following in the body of its direction (and also its covering email attaching that direction): The Tribunal NOTES, pursuant to section 42A(5) of the Administrative Appeals Act 1975, that the Tribunal may dismiss the application without proceeding to review the decision where the Applicant fails within a reasonable time to comply with a Direction of the Tribunal.[15] [15] ibid., at ‘R63’.
Decision
Reasons for decision
Dr Taylor undoubtedly has a number of professional and personal issues to which she is currently seeking to attend, including various claims in certain forums outside the Tribunal. However, Dr Taylor made an application to the Tribunal in December 2018, the Tribunal made its first directions in March 2019 for compliance by May 2019; those directions have been varied nine times by the Tribunal over eight subsequent months and Dr Taylor has not taken any substantive step in her application since those directions were first made in March 2019; she has not produced any of her Evidence and has delayed progression of the matter for many months. Dr Taylor’s explanations have been numerous and varied. The Tribunal cannot be satisfied, in the absence of her having taken any step to meet her obligations pursuant to the Tribunal’s directions, that she will comply with any future directions of the Tribunal. Dr Taylor has failed within a reasonable time to proceed with her application in the Tribunal and to comply with a direction by the Tribunal in relation to that application. Accordingly, in all of the circumstances, the Tribunal is satisfied that it is left with no other option than to dismiss Dr Taylor’s application. DECISION The Tribunal dismisses the application without proceeding to review the decision pursuant to subsection 42A(5) of the AAT Act.
Ratio Decidendi
Legal Principle Established
Dr Taylor said she would seek to appeal or take action in relation to any dismissal of her application by the Tribunal, but that ‘if I have to write it off and say the Federal Court thing matters more, I will, but that is because I am single person in this matter trying to do it all, when I’ve got the Commonwealth essentially saying “oh, alright, we’ll take advantage of the self-represented person” who literally just doesn’t have the hours in the day, does have health conditions, tries her best to manage them, no support from the Commonwealth in doing that’. Finally, Dr Taylor said she left the decision regarding Comcare’s dismissal application to the Tribunal, but that, ‘I’m almost at the moment, with what’s going on, not interested’. CONSIDERATION In all the circumstances, the Tribunal is satisfied that its discretionary power to dismiss Dr Taylor’s application has been enlivened by her failure within a reasonable time to both proceed with the application and to comply with a direction by the Tribunal in relation to the application. As a result, the question for the Tribunal is: whether it is appropriate to exercise the discretion to dismiss the application. For the following reasons, the Tribunal answers this question in the affirmative. Failure to proceed with the application As detailed, Dr Taylor has failed to proceed with her application in any substantive way since she filed briefing letters to Professor Sahoo on 7 March 2019, in compliance with one of the directions that were first made by the Tribunal on that date. Dr Taylor has failed to comply with any of the other directions made by the Tribunal on that day, being almost twelve months ago, which directions have been varied nine times over eight months between May 2019 and January 2020. In this regard, Dr Taylor has not filed any of her Evidence in the proceeding, including her statement, any medical report or witness statements. In determining whether Dr Taylor has failed within a reasonable time to proceed with her application, regard must be had to the objectives of the Tribunal set out in section 2A of the AAT Act, specifically the objective in paragraph (b) of providing a mechanism of review that is ‘fair, just, economical, informal and quick’. Regard may also be had to paragraph (c) of that provision, for a review to be ‘proportionate to the importance and complexity of the matter’. Plainly, given the failure of Dr Taylor to provide any of her Evidence in the proceeding since the first directions were made in March 2019, other than briefing letters, she has not proceeded with her application in a reasonable or timely manner. Dr Taylor’s application to the Tribunal was made in December 2018. The first directions were made by the Tribunal in March 2019. Dr Taylor has not taken any substantive step to advance the application for almost one year since March 2019. As submitted by Comcare, the Tribunal has provided Dr Taylor with abundant opportunity to progress her application over the course of the last twelve months. Since the first directions were made by the Tribunal they have been varied on numerous occasions over eight months, predominantly to afford Dr Taylor further time to comply with these directions for the provision of her Evidence in the proceeding, in addition to accommodating her other litigation or industrial dispute with the Department, the delayed production of documents by the Department, her personal circumstances and the recent bushfires. Dr Taylor has failed to comply with any of these directions.