Taylor and Comcare (Compensation)
[2020] AATA 430
•28 February 2020
Taylor and Comcare (Compensation) [2020] AATA 430 (28 February 2020)
Division:GENERAL DIVISION
File Number(s): 2018/7688
Re:Arlene Taylor
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Member W Frost
Date:28 February 2020
Place:Canberra
The Tribunal dismisses the application pursuant to subsection 42A(5) of the Administrative Appeals Tribunal Act 1975.
............................................................
Member W Frost
Catchwords
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
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 33, 42A
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14Cases
Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299
Beard v Telstra Corp Ltd [1999] FCA 999
Charara v Federal Commissioner of Taxation (2016) 69 AAR 97
Davey v Australian Electoral Commission [2014] AATA 355
De Los Santos-Aguilar v Migration Agents Registration Authority [2014] AATA 269
Evans and Australian Capital Territory [2019] AATA 799
Guse v Comcare (1997) 49 ALD 288
Katterns v Comcare (2002) 36 AAR 277
Re Byrt and Commissioner of Taxation [2013] AATA 862
REASONS FOR DECISION
Member W Frost
28 February 2020
INTRODUCTION
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 Act 1975 (AAT Act), because Dr Taylor has failed within a reasonable time to proceed with her application and to comply with a direction by the Tribunal in relation to that application.
The Tribunal held an interlocutory hearing regarding Comcare’s dismissal application. The Tribunal has considered the materials filed in the proceeding, including the documents filed pursuant to section 37 of the AAT Act, the submissions of the parties and two Affidavits from Ms Cains on behalf of Comcare.
The Tribunal is satisfied that Dr Taylor has failed within a reasonable time to proceed with her application and to comply with a direction of the Tribunal in relation to that application. Accordingly, the Tribunal dismisses the application without proceeding to review the decision.
ISSUE
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).
This direction made by the Tribunal on 7 March 2019 included the following notes, which were also included in each set of directions made by the Tribunal over the following ten months:
NOTES TO DIRECTION
1. If you do not comply with a direction, the Tribunal will list the application for a directions hearing. You will be required to attend the directions hearing in person and explain why you have not complied with the direction.
2. The Tribunal can dismiss an application if an Applicant fails within a reasonable time to comply with a direction made by the Tribunal. This power is set out in section 42A(5)(b) of the Administrative Appeals Tribunal Act 1975. If you are the Applicant and you fail to comply with a direction, you may also be asked to explain at the directions hearing why your application should not be dismissed.
3. If a party fails to comply with this direction, the Tribunal will not necessarily decide to adjourn, or delay the listing of, an alternative dispute resolution process or hearing.
4. Where the Tribunal has the power to award or recommend the payment of costs, failure by a party to comply with this direction may be taken into account in making a decision relating to costs.
5. If you do not believe you will be able to comply with a timeframe or any other aspect of this direction, you must apply to the Tribunal for an extension of time to comply or a variation of the direction. You must seek the views of the other party before making such an application, and advise the Tribunal of the other party’s views. You should make the application well before the date by which you are required to comply with the direction.
6. If you have been directed to give the Tribunal a Hearing Certificate, in accordance with the General Practice Direction, the Tribunal may list your application for hearing without further consultation if you do not provide the Hearing Certificate by the specified date.
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’.
On 17 January 2020, following the directions hearing at which she did not appear, Dr Taylor sent an email to the Tribunal and Comcare in the following terms:[16]
I have only just now had time to open various emails from the past few days. I gather, from this one, that there was a hearing scheduled for this morning. Appreciating that I have not had time or capacity to address personal emails for the past few days, the relatively quick listing and response times means I wasn’t aware of the contents of the emails of the Hearing listing until now. I apologise for any inconvenience, however, would also state that the short turn-around and lack of notice in general is problematic. The Respondent’s actual job (or their representative) is to spend time on these things. On the other hand, I have to attend work etc and cannot address these things during work time.
I will shortly review the full contents of the emails (this weekend) noting that I am currently at work.
I will outline in later responses why I haven’t had capacity to even read and address emails.
[16] ibid., at ‘R64’.
On 18 January 2020, Dr Taylor responded to earlier correspondence from the Tribunal, providing her consent to Comcare’s requested extension of time to lodge its lay witness statement. Dr Taylor’s reasons for her non-compliance were stated to be bushfire smoke that ‘has not helped my overall state of health’, she ‘cannot add hours to the day’ and her employer has been ‘chewing into time with their various behaviours that are both emotionally draining and time-consuming to respond to. I am prioritising things as best I can between a number of matters’.[17] Dr Taylor also said she emailed the Tribunal in early January 2020 (amongst other forums in which Dr Taylor had an application or interest), ‘to outline I wasn’t able to comply’. Despite this suggestion, the Tribunal was not copied into this correspondence. Dr Taylor subsequently forwarded an email from 3 January 2020 she had sent to the Federal Court of Australia, the Fair Work Commission, Comcare, the NSW Civil and Administrative Tribunal and various legal representatives, which stated that she would not be able to provide ‘various pieces of legal paperwork that are due in the coming week or today’, which documentation was said to be ‘almost there’.[18] The Tribunal is uncertain whether Dr Taylor was referring to the Tribunal’s directions for compliance by, at that stage, 13 January 2020, but in circumstances where Comcare’s representative was included on this email correspondence, the Tribunal gives Dr Taylor the benefit of the doubt that she was referring to those directions. Dr Taylor said she would not be able to provide any documentation because ‘the RFS has just advised our street and community there is a 95% chance the major fire will tear through our area within the next 24 hours. At the present time, assisting my family and community is a much higher priority for me than getting legal paperwork in on time’. The Tribunal notes that Dr Taylor’s residential address, near the border of the Australian Capital Territory and New South Wales, is to the west of Bungendore, and the nearest fire over this time was to the east of Bungendore, and near Braidwood, which is further east. In this regard, Dr Taylor’s residential address does not appear to have been directly affected by any recent bushfire, although the associated smoke would likely have been an issue in that region, in circumstances where it is close to the ACT, which was affected. The Tribunal notes that earlier this year it compiled a list of applicants who may be directly affected by fire due to their location. The area covering Dr Taylor’s residential address was not considered by the Tribunal to be fire affected and Dr Taylor was therefore not on this list.
[17] ibid.
[18] ibid., at ‘R60’.
As a result of the abovementioned variations to the Tribunal’s initial directions of 7 March 2019, Dr Taylor’s Evidence in the proceeding (excluding her medical evidence) was due to be provided to the Tribunal and Comcare by 31 January 2020; Dr Taylor failed to comply with this direction of the Tribunal.
On 3 February 2020, the Tribunal listed Dr Taylor’s non-compliance with the directions made on 17 January 2020 for a directions hearing to be held on 7 February 2020. Dr Taylor informed the Tribunal and Comcare by email that she was aware of her non-compliance and blamed ‘the conduct of my employer’; Dr Taylor said she was unable to attend the directions hearing due to her attendance interstate on a medical practitioner ‘due to the profound distress my employer is causing’.[19]
[19] ibid., at ‘R66’.
On 5 February 2020, Comcare, through its representative, applied to the Tribunal for Dr Taylor’s application to be dismissed pursuant to subsection 42A(5) of the AAT Act. The email from Ms Cains to the Tribunal (and copied to Dr Taylor), relevantly stated that:[20]
Unfortunately, no explanation for the non-compliance has been offered except that it is the fault of the Department of Health. The Respondent is not the Department of Health. The Respondent is Comcare.
At the last Directions Hearing on 17 January 2020, Member Frost, in Dr Taylor’s absence, again allowed Dr Taylor further time to file her evidence. In the covering email of the AAT’s Directions, Dr Taylor was formally put on notice that ‘pursuant to section 42A(5) of the Administrative Appeals Tribunal 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’. At that same Directions Hearing, Ms Cains advised the Tribunal that further non-compliance from the Applicant was likely to result in an application by the Respondent for dismissal under s 42A.
The Respondent therefore applies for dismissal and requests that the matter be listed so that the parties can be heard in relation to that application.
The further time provided by the Tribunal to Dr Taylor to file her statement in support of her claim and other evidence now amounts to 8 ½ months. The further time provided by the Tribunal to Dr Taylor to file her medical evidence now amounts to 9 months noting that it is due on 17 February 2020. Dr Taylor does not provide the Tribunal or Respondent with any guidance on when her evidence will be filed. Dr Taylor merely refers to the ‘conduct’ of the Department of Health. We note that the Department of Health has provided numerous documents in response to the summons and it is not clear to the Respondent what evidence Dr Taylor believes exists that is relevant to the Tribunal matter that has not been provided. In any event, there is no impediment to Dr Taylor putting on her evidence now and, should further documents be disclosed, providing updated evidence as the matter progresses.
[20] ibid.
Also on 5 February 2020, Dr Taylor responded to Comcare’s application and stated that if the proceeding were dismissed it would not just be her employer, the Department, ‘facing a damages claim in my current ComCare claim’. Dr Taylor further stated that ‘I look forward to presenting all the evidence I am trying to organise in whichever forum it comes out in first’. Dr Taylor did not substantiate her position on the dismissal application or indicate when she would be able to comply with the directions for her Evidence to be filed and served in the proceeding.
On 6 February 2020, as a result of Dr Taylor confirming she would not attend the directions hearing regarding her non-compliance listed for 7 February 2020, the Tribunal vacated the hearing and listed an interlocutory hearing to be held on 20 February 2020 in relation to Comcare’s dismissal application.[21] The covering email enclosing the Tribunal’s listing notice stated that:
This interlocutory hearing has been listed to determine the Respondent’s application for dismissal. The Tribunal invites the parties to provide written submissions as to their position in relation to this application on or before Friday, 14 February 2020.
[21] ibid.
On 14 February 2020, as requested by the Tribunal, Comcare filed and served written submissions in relation to its dismissal application, following its provision of an Affidavit sworn on 11 February 2020 by Ms Cains, outlining the chronology of the Tribunal proceeding. A further Affidavit of Ms Cains sworn on 19 February 2020 was filed and served on the same day regarding the proceeding in the Federal Court commenced by Dr Taylor in August 2019 against the Department.
On 17 February 2020, Dr Taylor’s medical evidence in the proceeding was due to be provided to the Tribunal and Comcare pursuant to the directions made by the Tribunal on 17 December 2019; Dr Taylor did not comply with this direction of the Tribunal and has not provided any medical report on which she intends to rely or otherwise inform the Tribunal that she does not intend to provide such report. Also on this date, the Tribunal attempted to telephone Dr Taylor on the mobile number she had provided the Tribunal, in circumstances where Dr Taylor had not provided any submissions in relation to Comcare’s dismissal application and had not acknowledged the listing of the interlocutory hearing to determine that application. Dr Taylor’s telephone number was disconnected. The Tribunal also sent Dr Taylor an email with a further copy of the listing notice for the interlocutory hearing and asked Dr Taylor to update her contact details given it was unable to reach her by telephone. Furthermore, the Tribunal sent Dr Taylor a copy of the listing notice by express post to the address she had provided the Tribunal, together with a covering letter which noted that the Tribunal can dismiss a matter in circumstances where an applicant fails to appear at a listed event in accordance with subsection 42A(2) of the AAT Act. This letter was delivered to Dr Taylor’s residential address on 18 February 2020.
The Tribunal notes for completeness that it received an automatic email reply to four emails it sent to Dr Taylor between 4 and 6 February 2020, including an email containing the listing notice for the interlocutory hearing on Comcare’s dismissal application. The automatic reply was in the following terms: ‘Dr Arlene Taylor is not available to respond to your email at the present time. Your email will be acknowledged and responded to at an appropriate time. Thank you for your consideration’. This automatic reply was not received by the Tribunal in response to its email on 17 February 2020 re-sending Dr Taylor the listing notice for the interlocutory hearing.
On the day of the interlocutory hearing on 20 February 2020, the Tribunal received an email from Dr Taylor at 6.03am saying she was ‘unable to attend’ the hearing because, firstly, she had a concurrent listing in the Federal Court, which in her words ‘is far more important’. The Federal Court hearing was scheduled to be held at 9.30am and the Tribunal’s interlocutory hearing was scheduled to commence at 11.00am. Dr Taylor’s further reasons for her inability to appear at the Tribunal hearing included her purportedly now having evidence regarding the alleged improper conduct of Comcare’s representative and regarding the Department’s and Comcare’s knowledge of its causation of her claimed injury the subject of the application. Additionally, Dr Taylor said she received this evidence on 17 February 2020 ‘suggestive that ComCare have either knowingly “protected” the Dept (and itself) with respect to a poor original decision, or that ComCare simply hasn’t investigated my claims adequately or effectively’. Dr Taylor also invited Comcare ‘to immediately accept liability for the claim (and the subsequent claims) – any failure to do so will be met with a solid provision of evidence and is likely to bring ComCare (and its representatives into significant disrepute)’. Dr Taylor also said she would ‘not be responding to matters relating to this over the coming week or so’, because the Department ‘has created a situation where I have to focus all energies on even more serious matters than what is briefly outlined here’. Finally, Dr Taylor asked the Tribunal for ‘one final extension’ so that she could ‘provide a thorough response on or before 9 March 2020’ and she was not in a position to do this any sooner because of potential consequences arising from her Federal Court hearing that morning.
By way of reply to Dr Taylor’s email, Comcare informed the Tribunal (and Dr Taylor) that it opposed any adjournment of the interlocutory hearing or any extension of time for Dr Taylor to comply with the directions for provision of her Evidence.
In all of the circumstances, the Tribunal was not satisfied with Dr Taylor’s late request for a further variation to the directions requiring her Evidence and it decided to proceed with the interlocutory hearing of Comcare’s dismissal application at 11.00am that day. The Tribunal’s decision to proceed was conveyed to the parties by email at approximately 9.30am; ultimately, Dr Taylor appeared at the hearing later that morning by telephone.
LEGISLATION
Section 2A of the AAT Act provides that:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible;
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision-making of the Tribunal.
Section 33(1AB) of the AAT Act states that:
A party to a proceeding before the Tribunal, and any person representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A.
Subsection 42A(5) of the AAT Act states that:
If an applicant for a review of a decision fails within a reasonable time:
(a) to proceed with the application; or
(b) to comply with a direction by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision.
COMMON LAW
In Guse v Comcare (1997),[22] the Court concluded that subsection 42A(5) of the AAT Act:
is plainly a valuable discretionary power. But para (b) does involve denying an applicant a hearing of the merits of his application. That should be done very sparingly, and only, I think, as a decision of last resort. Particularly is this so in a case where the genuineness of the claim is not in dispute.
The very nature of the discretion seems to me to demand that the Tribunal consider, after the default has occurred, whether in the circumstances then obtaining, a "reasonable time" has elapsed and whether the proper remedy is dismissal of the application, or the taking of some other course, such as adjourning the proceeding or making some other order to secure compliance.
Furthermore, s 42A(5)(b) cannot, consistently with the observance of the principle of natural justice, be implemented upon an ex parte statement that an applicant has not complied with a direction, without giving the applicant any opportunity to explain, or advance reasons why the matter should nevertheless proceed.
[22] Guse v Comcare (1997) 49 ALD 288; 25 AAR 477 at 480.
The discretionary power to dismiss an application under subsection 42A(5) of the AAT Act has been held by the Federal Court to be in aid of the objective in subsection 2A(b) of the AAT Act.[23] In Charara v Federal Commissioner of Taxation (2016) (Charara), the Court set out the principles relevant to the exercise of the discretion as follows:[24]
The discretion must only be exercised sparingly and as a matter of “last resort”: Guse v Comcare (1997) 49 ALD 288 at 291. That is because it involves denying an applicant a hearing of the merits of the application. Because dismissal under s 42A(5) is a matter of last resort, the Tribunal must consider whether dismissal is the proper remedy, or whether it would be more appropriate to take some other course, such as adjourning the proceeding or making some other order to secure compliance: Guse v Comcare at 291. Again, a failure to do so would most likely constitute a misapplication of s 42A(5).
In exercising the discretion, the Tribunal must afford the applicant procedural fairness: Guse v Comcare at 291. Procedural fairness would ordinarily require the Tribunal to give the applicant the opportunity to make submissions as to why the discretion should not be exercised. That would include giving the applicant an opportunity to put forward submissions concerning whether there had been a failure to comply with a direction and, if so, whether a reasonable time had elapsed since that failure. It would also ordinarily extend to giving the applicant an opportunity to explain or justify any failure, or to advance any reasons why, despite the failure, the application should not be dismissed. Depending on the particular circumstances, it might also extend to giving the applicant a further opportunity to comply or remedy the default.
[23] Charara v Federal Commissioner of Taxation (2016) 69 AAR 97; 103 ATR 118; [2016] FCA 451 at [75].
[24] Charara v Federal Commissioner of Taxation at [79]–[80].
Before dismissing an application under subsection 42A(5) of the AAT Act, it is critical that the applicant be forewarned of the likelihood of dismissal and be given an opportunity to provide an explanation for its non-compliance.[25] In this regard, the Court in Katterns v Comcare[26] concluded that the Tribunal had erred in dismissing an application pursuant to subsection 42A(5) of the AAT Act without giving notice to the parties of its intention to do so and extending to them an opportunity to be heard in relation to the application.
[25] De Los Santos-Aguilar v Migration Agents Registration Authority (2014) 64 AAR 1; [2014] AATA 269 at [25].
[26] Katterns v Comcare (2002) 36 AAR 277; [2002] FCA 1366.
In Beard v Telstra Corp Ltd,[27] the Court held that the test under subsection 42A(5) was ‘whether at the time of the decision made pursuant to that section it had been demonstrated that the applicant had failed within a reasonable time to proceed with the application’. In Evans and Australian Capital Territory [2019] (Evans),[28] the Tribunal said that, in determining what is a ‘reasonable time’ within which to proceed with an application, consideration should be given to the Tribunal’s objectives set out in section 2A of the AAT Act. A ‘reasonable time’ has been said in one Tribunal decision to be approximately seven days,[29] however it was stated in Evans that:[30]
the phrase ‘reasonable time’ is not given any special meaning for the purposes of s 42A(5). It is not an abstract concept amenable to a fixed or arbitrary assessment of time; nor is it something that can be properly assessed on the passage of time, alone. The amount of time that may be considered reasonable is to be assessed in each case, having regard to all relevant circumstances.
…
The assessment of ‘reasonable time’ requires consideration of all relevant circumstances, including previous non-compliance by the person and delays arising from the conduct or circumstances of the person, as well as the interests of other parties. This involves close consideration of the applicant’s circumstances that bear upon his or her capability to comply with the direction. Should it be established that the applicant’s mental health, for example, is such that renders him or her unable or incapable of complying with the direction for an uncertain time reaching into the future, this would be relevant when assessing the amount of time that may be considered reasonable for compliance.
CONTENTIONS
[27] Beard v Telstra Corp Ltd (1999) 57 ALD 376; [1999] FCA 999 at [32].
[28] Evans and Australian Capital Territory [2019] AATA 799 at [78].
[29] Davey v Australian Electoral Commission [2014] AATA 355 at [28].
[30] Evans at [77] and [93]. See also O’Sullivan and P & O Maritime Services Pty Ltd [2019] AATA 126 at [109].
Comcare
At the interlocutory hearing, Comcare relied on its written submissions dated 14 February 2020 and two associated Affidavits of Ms Cains sworn on 11 and 19 February 2020, respectively.
Because Dr Taylor said that she had received those documents, but had not had the opportunity to consider them because ‘of my employer’s conduct’, Comcare’s representative went through its submissions in some detail.
Comcare confirmed its request for the Tribunal to dismiss Dr Taylor’s application because she has failed within a reasonable time to proceed with that application and failed to comply with a direction of the Tribunal. Comcare set out the facts concerning Dr Taylor’s application, a chronology of the directions made by the Tribunal and the circumstances in which the Tribunal should exercise its discretion to dismiss an application under subsection 42A(5) of the AAT Act, which it said applied in this particular application.
Comcare contended that because the Tribunal’s dismissal power is discretionary, it does not need to be exercised whenever the preconditions for such exercise are met. However, where those pre-conditions are met, the power to dismiss is enlivened. In considering whether to exercise the enlivened power, the Tribunal must be satisfied of one or both of the limbs in subsection 42A(5), being that the applicant has within a reasonable time: failed to proceed with the application; or failed to comply with a direction by the Tribunal in the application. There is no requirement for both of these limbs to have been met to exercise the Tribunal’s discretion. If one or both of these limbs are met, the Tribunal must decide whether it is appropriate to exercise the discretion to dismiss an application.
Comcare submitted that the Tribunal’s dismissal power had been enlivened in this proceeding because Dr Taylor had failed within a reasonable time to both proceed with her application in any substantive way since March 2019, despite significant opportunity to do so, and failed to comply with a Tribunal direction made on 17 January 2020 for the provision of her Evidence, which direction had been varied numerous times since March 2019. It was further submitted that, while acknowledging that the power should be used sparingly and as a matter of last resort, in the circumstances it was appropriate to dismiss Dr Taylor’s application.
Comcare contended that Dr Taylor had been afforded procedural fairness in both the substantive application and the dismissal application, by being provided with a reasonable opportunity to present her evidence and to make submissions in relation to them. In regard to the substantive application, Dr Taylor had been on notice since the first directions were made in March 2019 that the application could be dismissed if she failed to comply with a direction and was formally put on notice by the Tribunal in its directions made on 17 January 2020, with which she did not comply. In relation to the dismissal application, Dr Taylor was aware of Comcare’s application on the day it was made and was provided by the Tribunal with notice of the interlocutory hearing by various means of communication from 6 February 2020.
Comcare further contended that when contemplating whether dismissal of an application is ‘the proper remedy’, as referred to by the Federal Court in Charara, the Tribunal should consider the explanation for the delay; prejudice to the respondent; the merits of the application; whether the applicant has used its best efforts to assist the Tribunal pursuant to section 33(1AB) of the AAT Act; and dismissal as the last resort in a proceeding.
Comcare submitted that Dr Taylor had provided ‘very little’ by way of explanation for the delay in filing and serving her Evidence; it amounted to blaming the Department without providing any indication of when she would provide her Evidence, noting that earlier dates undertaken to be complied with had been and gone. Comcare further stated that the explanation may be contained in Dr Taylor’s email on the day of the hearing that her Federal Court proceeding is ‘far more important’ than her Tribunal application. In this way, Comcare contended, Dr Taylor had ‘disengaged with the Tribunal’ proceeding. Additionally, Comcare submitted that, to the extent Dr Taylor may rely on the Department’s delay in providing summonsed documents, it could no longer excuse her non-compliance. For example, it was said that Dr Taylor could continue to assert indefinitely that documents remain unproduced by the Department but this could not justify an indefinite extension until she was satisfied that the summons had been complied with by the Department. Furthermore, Dr Taylor was said not to be able to rely on the delay by Comcare in filing its witness statement because Dr Taylor was directed to file and serve her evidence and witness statements in advance of Comcare, as is the usual process; Comcare decided to file its witness statement when Dr Taylor failed once more to meet the obligation to file her Evidence, including any witness statements in the proceeding.
Comcare said that if Dr Taylor does have evidence to support her application, as she has repeatedly suggested, then the time has well passed for her to file and serve that evidence. This repetitive threat from Dr Taylor over many months that she has evidence and will file it in the proceeding continues to amount to nothing ultimately being produced by Dr Taylor.
Comcare submitted that it would be prejudiced because of the delay in terms of marshalling its evidence in the substantive application whenever it was ultimately heard by the Tribunal, in circumstances where the claimed injury occurred in 2018 and the preliminary steps in the proceeding have yet to be completed by Dr Taylor. In this regard, a hearing was unlikely to be listed before the end of the year and possibly not until 2021, subject to Dr Taylor’s ability to meet the current directions still not complied with and future directions made by the Tribunal in advance of a hearing.
Comcare submitted that neutral weight should be given to the merits of Dr Taylor’s application because it is neither so wanting of merit that it should be dismissed, nor so meritorious that it should not be dismissed. In this regard, Comcare said that Dr Taylor’s focus has been on events that occurred after the claimed injury and the relevant time period before the Tribunal, therefore the merits of the application should only be a neutral consideration in determining whether to exercise its discretion.
Comcare also contended that Dr Taylor had failed to uphold the obligation on parties in any Tribunal proceeding to use her best efforts to assist the Tribunal, despite having a degree in medicine, being admitted to practice in that profession, with restrictions, and also a ‘seasoned litigant’.
Comcare finally contended that, although the threshold for the exercise of the Tribunal’s power to dismiss is high and to be used as a remedy of ‘last resort’, the proceeding has now reached that stage. Dr Taylor has been granted numerous extensions of time since the first directions were made in March 2019 for the provision of her Evidence. The Tribunal and Comcare are still awaiting Dr Taylor’s Evidence. In this regard, Dr Taylor has repeatedly failed to comply with her own assessment of her readiness to file her Evidence. Although the Tribunal could continue to issue varied directions and manage the application closely, these have not had any effect despite many extensions of time and directions hearings held by the Tribunal. As a result, the Tribunal can have no comfort that any timeframes suggested by Dr Taylor will be met. In the circumstances, Comcare submitted that the Tribunal is left with no option but to exercise its discretion and dismiss Dr Taylor’s application.
In closing, and in response to Dr Taylor’s contentions (set out below in these reasons), Comcare said the application before the Tribunal is for an injury which occurred between 28 February 2018 and 16 May 2018. The issues raised by Dr Taylor in relation to the Department post-date the injury and are not relevant to the consideration by the Tribunal of her substantive claim. These extraneous issues therefore do not weigh in the Tribunal’s consideration of its exercise of the discretion.
In relation to Dr Taylor’s claim that her suspension by the Department on 24 January 2020 was a reason for her non-compliance with the Tribunal’s direction, Comcare said that Dr Taylor’s non-compliance pre-dates by several months her suspension from the Department. In this regard, Comcare said it is clear Dr Taylor never intended to comply with the Tribunal’s 6 December 2019 directions to file and serve her Evidence by 13 January 2020 and other directions made by the Tribunal; Dr Taylor’s suspension from the Department post-dated this time, and the suspension led to her prioritising her Federal Court proceeding.
Additionally, Comcare said the Federal Court proceeding is far from finalisation and the Tribunal can take no satisfaction that Dr Taylor will proceed with her application in a timely manner; in fact, it was said, Dr Taylor will provide nothing in her Tribunal application until she her Federal Court proceeding has been completed, which proceeding relates to industrial relations issues Dr Taylor has with the Department that post-date the relevant period in her Tribunal application.
In relation to the recent health issues raised by Dr Taylor, Comcare submitted that she had not provided any medical evidence to support her contentions. In addition, Comcare said there was no evidence supporting Dr Taylor’s contentions regarding having to stay in hotels, rather than at home, and to change cars due to her employer’s actions.
Comcare’s representative said that the Department is the relevant liable agency should the Tribunal, or Comcare, decide to accept her application, and it is also the rehabilitation authority, therefore there is a concurrent interest for Comcare’s representative to discuss matters with the Department. On this point, Comcare’s representative said that while she was ‘so upset’ at the allegations made at the hearing by Dr Taylor against herself and the Commonwealth, she would not engage with Dr Taylor in relation to those allegations but only the Tribunal application.
Comcare said that if the independent medical assessment of Dr Taylor, conducted at the request of Comcare, did not include records from Dr Taylor’s treating psychiatrist, this was an ‘oversight’ but it expected a supplementary report from its expert would be required after Dr Taylor’s medical evidence was provided, if the application proceeded. Despite Dr Taylor’s suggestion, Comcare had summonsed the file of her psychiatrist; this file had been produced to the Tribunal in March 2019 and inspected by both parties in April 2019. In this regard, Dr Taylor said she ‘hadn’t even had time to go to the Tribunal and photocopy whatever else is new’. Comcare said this level of engagement from Dr Taylor supported its case for dismissal.
Comcare contended that all that can be taken from Dr Taylor’s submissions made to the Tribunal at the interlocutory hearing, and the observations of the procedural conduct of this matter, is that the Tribunal application (being limited and non-complex in nature) will not be prioritised and will not proceed until Dr Taylor has finalised her Federal Court dispute with the Department, which is likely to be ‘protracted and difficult’ as long as she remains an employee of the Department. As a result, the Tribunal can take ‘no satisfaction’ in Dr Taylor’s assessment of the timeframes in which she can produce her Evidence. In response, Dr Taylor said the Tribunal could take ‘no satisfaction’ in the integrity of the Department’s conduct.
Finally, Comcare said the preconditions that enliven the application of subsection 42A(5) of the AAT Act have been met in this application and requested that for all of the reasons submitted, including taking into account Dr Taylor’s submissions, the Tribunal exercise its discretion and dismiss the application.
Dr Taylor
Dr Taylor apologised to the Tribunal and Comcare for the ‘ongoing’ delay in her application. Dr Taylor said she has ‘had to focus on the Federal Court matter’ and would explain why to the extent she could because some of what is before that forum was not disclosable in her application before the Tribunal, although she noted that Comcare was aware of certain matters by way of their relationship with Dr Taylor due to her role as a Health and Safety representative at the Department.
Dr Taylor said it was ‘true’ that she was treating her Federal Court proceeding in preference to her Tribunal application. However, she said there is ‘a complete overlap’ between both matters. The reason the Federal Court proceeding had taken priority was said to be because of the Department’s conduct in seeking to terminate Dr Taylor’s employment from as early as 27 March 2019, because of her claim in this application. In this regard, Dr Taylor said her recent activity in the Federal Court, being the making of an interlocutory application with an accompanying affidavit on 18 February 2020, was to seek interlocutory relief to stop the Department from terminating her employment unlawfully, in circumstances where they have repeatedly failed to produce ‘things’ in that matter until the judge ‘put pressure on them’. Dr Taylor said she has recently received 5,764 documents ‘totalling, I don’t know, many tens of thousands of pages’ in that proceeding. On 17 February 2020, Dr Taylor accessed the documents at 7.00pm and said she has ‘slept for three hours since then’ and read every document. Dr Taylor said there were ‘a large number of documents that would have been relevant to the summons’ issued to the Department in this application. Dr Taylor said she knew the Department had more documents supporting her case that they did not provide her until it was made available in the Federal Court matter. Dr Taylor said she knew why these documents were not previously provided; it was ‘very clear’. Dr Taylor said, while she respected the Tribunal, its process had ‘in a way allowed certain things to happen’ in relation to the summons issued to the Department. In this way, Dr Taylor said repeatedly ‘chasing the Department’ regarding that summons was ‘very stressing for me’.
Dr Taylor said that the Department suspended her without notice on 24 January 2020 because of her ‘activities as a Health and Safety representative’, activities which were said to reveal that ‘everything I’ve said to do with this claim would be substantiated in terms of the mismanagement of my own work, health and safety matters, and unfortunately a lot of other people, causing injury, for me, psychological’. Comcare was said to be aware of this due to her role as a Health and Safety representative at the Department.
Dr Taylor submitted that she had been prejudiced by the failure of the Department to provide documentation; the behaviour of her employer would be able to be substantiated ‘once I am able to distribute it’, that ‘my return to work was never planned to happen’. Dr Taylor made further allegations about the Department seeking to terminate her employment and the Commonwealth and its lawyers seeking to ‘cover up deliberate attempts at unlawful dismissal’. In addition, Dr Taylor made repeated allegations regarding the behaviour of Comcare’s representative in the Tribunal application and her liaising with the Department which was said to have prejudiced Dr Taylor in her Federal Court proceeding.
Dr Taylor said she has identified documents in the Federal Court proceeding that ‘pretty much loses the whole case’ for the Department and will not assist Comcare’s position in this application. The Department was said to have applied for legal professional privilege over these documents, but this was not granted by the Court; they are ‘extremely damning’.
Dr Taylor confirmed that she has disconnected her mobile telephone; she was using a temporary telephone for the interlocutory hearing. Dr Taylor contended that she cannot use her car because she ‘had evidence’ that people have ‘kept track of where I’m going’ and has had to stay overnight in hotels over the last few months because of the actions of the Department. Dr Taylor said the Department, despite her treating doctors being ‘quite certain’ that she is neither ‘mentally unstable or unwell’, have been trying to use her mental health history to suggest that she is unstable, because the Department are becoming ‘rather desperate’ in the Federal Court proceeding and she now understands why this is so.
Dr Taylor said she is trying to meet the Federal Court timetable for her required documentation to be filed and served because, if she loses her job at the Department, she will have ‘an even bigger problem than losing an appeal to Comcare’.
Dr Taylor acknowledged that she had not ‘put on a submission and I haven’t filed an affidavit’ in her application, but did ‘give them a USB that had everything that was relevant that I had on my computer’. Within those documents, Dr Taylor said there was sufficient evidence for Comcare to accept her claim in this proceeding in line with its model litigant requirements. The Tribunal notes for the avoidance of doubt that Dr Taylor has not provided the Tribunal with a USB in this proceeding or any material said to be from a USB or her computer. The content of the USB was not further discussed and it is unclear when Comcare purportedly received this material from Dr Taylor.
Dr Taylor said she has been working to file her evidence in the Federal Court proceeding, there is a ‘total overlap’ of evidence that meant if she did so, she could then provide that evidence in her Tribunal application.
Dr Taylor said she has had little sleep, which is taking a toll on her, as an asthmatic she was impacted by the recent bushfire smoke and she was ‘barely able to function’. In this regard, Dr Taylor referred to a recent claim she had made that had been rejected by Comcare that she foreshadowed would be appealed, but that due to the Department’s ‘actions’, her level of functioning dramatically deteriorated, including in relation to her autism spectrum disorder. Dr Taylor has commenced new medication a few weeks ago. Dr Taylor said this impacted her for several months late last year, while she tried to survive at work and the Department sought to terminate her employment.
Dr Taylor said ‘yes, I have prioritised the Federal Court matter, because getting that evidence ready would be evidence for this’ application. Dr Taylor said she had ‘not even had time to get a report organised’ from a medical practitioner and said this was likely unnecessary given the ‘evidence’ she said was now in her possession from the Federal Court proceeding.
Dr Taylor considered Comcare ‘complicit’ with the actions of the Department; Comcare is ‘well aware’ due to the USB she had provided, amongst other things, that she was injured.
Dr Taylor said she wants to see her Tribunal application through and that, unlike in the Federal Court; the Tribunal’s efforts to seek compliance by the Department with the summons did not lead to a comprehensive response from her employer. Dr Taylor said she was ‘at the point where the Federal Court matter is going to remain my priority’; it is ‘going to be much greater than a little AAT appeal, noting no disrespect to AAT’. It was said by Dr Taylor that it is ‘very clear that it is all linked’. Dr Taylor said her evidence in the Federal Court proceeding will be filed on 6 March 2020, before a further case management hearing on 9 March 2020.
Dr Taylor said the Department ‘lied’ to Comcare about her not accepting reasonable adjustments at work. Dr Taylor further said ‘there is now criminal activity showing up in the evidence’. Dr Taylor said she had ‘the evidence’ but did not think she could provide it to the Tribunal or Comcare until it was read in an affidavit in the Federal Court proceeding at which time it would become public. Dr Taylor said all of what she was saying was substantiated by the evidence to be put before the Federal Court.
Dr Taylor acknowledged that she has not complied with the Tribunal’s directions, but was ‘trying her best’ and ‘not really making this low priority’, but was prioritising the Federal Court matter to have the evidence ventilated in that forum, which would also bear on her claim in the Tribunal.
Dr Taylor said the Department had not produced all relevant documents pursuant to the summons issued by the Tribunal on her request because documentation the Department produced to the Federal Court on 17 February 2020 demonstrated there was ‘a huge overlap’, with documents also relevant for her Tribunal application, but Dr Taylor said she has not yet had time to identify those documents.
Dr Taylor took issue with the medical report filed and served by Comcare in the Tribunal proceeding, following a medical examination of Dr Taylor by a psychiatrist at Comcare’s request. Dr Taylor said her long-term treating psychiatrist’s records had not been included in that report, being the person with the most relevant knowledge of her condition. Dr Taylor submitted that, if the application proceeded, she would be ‘happy’ to cross-examine the psychiatrist called by Comcare.
Dr Taylor said she would leave the matter of dismissal to the Tribunal; she had ‘brought a genuine case to the AAT’, in circumstances where the Commonwealth, being either or both of the Department and Comcare, had not ‘behaved in a manner that has made it possible for me to handle it appropriately’. Dr Taylor said she ‘can absolutely at some point get something from my psychiatrist’ recording the change in medication in recent weeks ‘very much came’ from her decline in organisational skills and ability to function at that time, and also said she could produce affidavits or statutory declarations from her family to this end. Dr Taylor submitted that in recent weeks her level of functioning was impacted because her injury was made worse; the Department was said not to have assisted in this claimed exacerbation of her condition.
Dr Taylor contended that she was ‘willing to keep putting the evidence together’, which was due to be filed and served in the Federal Court proceeding on 6 March 2020. This meant that the ‘bulk of the evidence for Comcare would be in there’ and she intends to write a ‘reasonably brief statement’ relying on the same affidavit evidence in the Federal Court proceeding for the Tribunal application because, even if matters covered in that evidence occurred after the date of her claimed injury, this demonstrated ‘tendency evidence and patterns of behaviour and things I’ve become aware of afterwards that are relevant to this’ application.
Dr Taylor submitted that she still does not have reasonable adjustments at her workplace which she alleged was ‘deliberate’. Dr Taylor said her employer decided long ago to terminate her employment and she was ‘fed up’. Dr Taylor said she had to look after her health and would ‘bring the evidence out in the open in some forum’; her Tribunal application was not about money and Comcare’s rejection of her claim did not make sense because that decision was founded upon inaccurate evidence, Comcare should therefore accept her claim in light of all of the evidence.
Dr Taylor said she ‘absolutely can do a better job than what I have been doing’, her injury has become worse due to her employer and she does not have the resources to engage legal representation. Dr Taylor reconfirmed that she had prioritised the Federal Court matter and evidence in that proceeding overlapped with her Tribunal application. The conduct by the Department after her claimed injury was said to be ‘much worse’ and it was a ‘complete failure to look after my work health and safety’ that resulted in her condition.
Dr Taylor said that if her application is dismissed ‘I’ll deal with one thing at a time [indecipherable], right now I have the Commonwealth of Australia in the Federal Court, it’s not going to be a small matter and I’m just going to keep doing the best I can do’, while noting she felt ‘let down’ by the legal system.
In closing, and in response to Comcare’s closing submissions (set out above in these reasons), Dr Taylor submitted that she was ‘equally upset’ as Comcare’s representative in relation to the latter’s purported interactions with the Department, but Dr Taylor said her concerns regarding the association between Comcare’s representative and the Department have been longstanding.
Dr Taylor said it was unreasonable to state that she could not provide her Evidence, given the multiple factors that ‘had happened sequentially’, making things ‘difficult’. These include her decreasing functional levels, the ‘attacks’ by the Department and the bushfire smoke after Christmas that meant she could do no more than attend work in January 2020.
Dr Taylor said it was ‘far from true’ that her focus was on events following her claimed injury on 16 May 2018, but what happened afterwards also involved her seeking documentation about the handling by the Department of her work health and safety matters.
Dr Taylor acknowledged that ‘I am running ridiculously over time’ in this application and that she had also been unable to meet some Federal Court timelines. She said ‘nothing was visibly progressing because I couldn’t get it happening’ and that is why she changed her medication on 21 January 2020.
Dr Taylor referred to claims of legal professional privilege over certain documents produced by the Department in the Federal Court proceeding and now in the possession of Dr Taylor, that are purportedly the subject of some dispute in that proceeding because the purpose of their creation was said to be ‘illegal activity or fraud’.
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.
Additionally, Dr Taylor has not satisfactorily explained to the Tribunal why she has failed to proceed with her application. In her email to the Tribunal on 5 February 2020, Dr Taylor threatened other unnamed parties with a ‘damages claim’ if her application was dismissed; she also stated that she had information relevant to her application, which had ‘only just come into my hands’, noting that, on the day of the interlocutory hearing, Dr Taylor said she only received relevant documentation or evidence on 17 February 2020. Dr Taylor also referred to ‘distress’ and ‘attacks’ experienced from her employer and Comcare being ‘complicit’ with the Department’s actions, all without substantiation. At the interlocutory hearing of Comcare’s dismissal application, Dr Taylor acknowledged that her application had not progressed, but sought to attribute blame to a range of causes which, broadly, relate to the alleged actions of the Department and Comcare and to her health. In relation to the former, although Dr Taylor does have a Federal Court proceeding on foot against the Department, she has not provided the Tribunal with any evidence that the claimed actions of that agency or Comcare have occurred. As with many allegations and undertakings made by Dr Taylor in this application, they remain unsubstantiated and unfulfilled. In relation to Dr Taylor’s recent health concerns, again the Tribunal has not been provided with any medical or other evidence to confirm these matters, including evidence that Dr Taylor has experienced health problems that have prevented her from proceeding with her application in the Tribunal. While the Tribunal could accept that Dr Taylor may have experienced recent health issues, it cannot be satisfied that these have made her unable to proceed with her application in any substantive manner.
In this regard, Dr Taylor has, unlike her Tribunal application, been progressing her Federal Court proceeding in recent months, including by filing and serving an interlocutory application and accompanying affidavit in that proceeding two days in advance of the Tribunal’s interlocutory hearing of Comcare’s dismissal application. This demonstrates that, despite claims to the contrary, Dr Taylor is currently able to effectively participate in a legal proceeding. As a result, Dr Taylor has demonstrated that she has, in her words, prioritised her Federal Court proceeding and, it appears to the Tribunal, disengaged from her Tribunal application. To this end, the Tribunal refers to comments that Dr Taylor made at the interlocutory hearing that she was ‘not interested’ in this application and may ‘write it off’ if dismissed because the Federal Court proceeding ‘matters more’. Unless there are valid reasons to do so, the Tribunal cannot readily allow a situation where an application before it sits in abeyance for twelve months, with no substantive step taken by the applicant due to the applicant’s unwillingness or unpreparedness to proceed with their application in a timely manner, where it is demonstrated that the applicant is able to, and has been, progressing a concurrent separate legal proceeding in another forum. The Tribunal also is not satisfied that Dr Taylor’s commitment, made on the day of the dismissal application, to provide ‘a thorough response’ by 9 March 2020 will be met. Again, Dr Taylor has made many commitments over many months to provide ‘evidence’ that have not been kept. This situation does not meet the Tribunal’s objectives set out in section 2A of the AAT Act of providing a review mechanism that is, amongst other things, just, economical and quick for all parties. It is also not proportionate to the importance and complexity of the matter before the Tribunal. Accordingly, the Tribunal is satisfied that Dr Taylor has failed within a reasonable time to proceed with her application under subsection 42A(5)(a) of the AAT Act.
Failure to comply with a direction
As also detailed in these reasons, Dr Taylor has failed to comply with multiple directions made by the Tribunal. Dr Taylor did not comply with the directions made by the Tribunal on 17 January 2020 to file her witness statement, any lay witness statements and any other material on or before 31 January 2020. These directions have been varied by the Tribunal nine times over eight months since they were first made in March 2019. On six of these occasions, Dr Taylor requested that the directions be varied. On two previous occasions, in October 2019 and January 2020, Dr Taylor was non-compliant with the directions, although on the last of these occasions she had attempted to notify the Tribunal in advance that she could not comply.
In addition, the Tribunal notes that Dr Taylor has not complied with the direction made by the Tribunal on 17 December 2019 for her to file any medical evidence by 17 February 2020.
To date, Dr Taylor has not rectified her non-compliance with the directions made by the Tribunal on 17 January 2020 to provide her Evidence (excluding medical evidence) by 31 January 2020. As already noted, these directions were not the first made in this application. Indeed, the same directions have been made and varied nine times. In this way, Dr Taylor has had sufficient notice of the directions, the requirement that they be complied with and also the Tribunal’s power to dismiss an application for non-compliance, which notice was contained in the notes section of each set of directions issued by the Tribunal since March 2019. Additionally, Dr Taylor was formally notified of the Tribunal’s power to dismiss an application under subsection 42A(5) of the AAT Act in the body of the directions issued following her non-appearance at a directions hearing on 17 January 2020. The covering letter containing these directions also set out the Tribunal’s dismissal power. For the reasons outlined by the Tribunal above under the heading, ‘Failure to proceed with the application’, Dr Taylor has not provided a satisfactory explanation for her failure to comply with the directions made by the Tribunal on 17 January 2020. In summary, Dr Taylor has not provided any evidence to substantiate her claims regarding the purported reasons for her failure to comply with the Tribunal’s directions. Moreover, while the Department did take some months to fully comply with the summons issued to it at the request of Dr Taylor for the production of certain categories of documents related to her application, the Department had substantially complied by late October 2019 and ultimately did so with the provision of a small bundle of documents in mid-December 2019. Dr Taylor has been in the possession of the vast bulk of these documents for some months and failed to comply with directions made by the Tribunal in each of November 2019, December 2019 and January 2020. The Department’s delay in providing these documents last year cannot excuse the ongoing failure by Dr Taylor to comply with the Tribunal’s directions to provide her Evidence in the proceeding. Moreover, Dr Taylor could have, if required, supplemented her Evidence following her receipt and review of the Department’s summonsed documents. However, Dr Taylor has not complied in any way with the Tribunal’s directions for the provision of her Evidence in the proceeding.
The Tribunal notes for completeness that, although Dr Taylor has failed to comply with the direction made on 17 December 2019 to file and serve any medical evidence by 17 February 2020, this latest failure by Dr Taylor to comply with a direction is not relied upon by the Tribunal in its dismissal of her application. It does, however, further demonstrate Dr Taylor’s disregard over twelve months for the Tribunal’s directions and the resultant inability of the Tribunal to have any confidence that Dr Taylor will comply in future with these or any other directions made by the Tribunal in her application.
Taking all of the circumstances into account, the Tribunal is satisfied that Dr Taylor has failed within a reasonable time to comply with a direction of the Tribunal in relation to the application under subsection 42A(5)(b) of the AAT Act.
Exercise of the discretion
As set out by the case law referred to in these reasons, the Tribunal’s discretionary power to dismiss an application because an applicant has failed within a reasonable time to proceed with the application or to comply with a direction by the Tribunal should be used sparingly and as a matter of last resort. It is a grave and, plainly, final step in a proceeding, denying an applicant the opportunity to test their application before the Tribunal. However, it is a power afforded to the Tribunal by the Parliament in the AAT Act. It therefore does not mean the power should not be exercised if the circumstances warrant such use.
The Tribunal’s obligation to afford procedural fairness weighs heavily in all that it does in its jurisdiction. As detailed in these reasons, the Tribunal has provided Dr Taylor with what any fair-minded observer would consider to be a reasonable opportunity to present her evidence and to make submissions in relation to her application before the Tribunal. This is demonstrated by the Tribunal’s variation of its directions made in March 2019 on numerous occasions over eight months to accommodate Dr Taylor’s requests for further time in order for her to provide her Evidence in the proceeding, culminating in Dr Taylor’s failure to comply with the Tribunal’s directions of 17 January 2020. Dr Taylor made her application in December 2018 and, apart from providing briefing letters to a medical practitioner, has not complied with any direction of the Tribunal or taken any substantive step in the proceeding since that time.
The Tribunal has also provided Dr Taylor with a reasonable opportunity to present evidence and make submissions in relation to Comcare’s dismissal application. Dr Taylor, like any applicant before the Tribunal, has been on notice from the issuing by the Tribunal of its first set of directions that an application can be dismissed where there is non-compliance with a direction. This is contained in the notes section to each set of directions made and issued by the Tribunal. Additionally, as previously noted, the Tribunal set out in the body of its directions issued to the parties on 17 January 2020 (and in its covering letter of the same date) that the Tribunal may dismiss an application under subsection 42A(5) of the AAT Act. Accordingly, Dr Taylor was sufficiently on notice that her failure to comply with a direction may lead to the dismissal of her application. Additionally, Dr Taylor was provided with notice of Comcare’s dismissal application made on 5 February 2020; Dr Taylor responded by email on that day to this application with various threats in the event that the proceeding was dismissed.
Dr Taylor was also provided with notice of the listing of the interlocutory hearing of Comcare’s dismissal application for 20 February 2020. The Tribunal sent a listing notice to the parties by email on 6 February 2020 and any submissions were requested to be provided by 14 February 2020. The Tribunal also telephoned Dr Taylor on 17 February 2020 regarding the interlocutory hearing. Dr Taylor’s mobile phone number was disconnected. The Tribunal sent a further email to Dr Taylor on this date, to which no automatic reply was received from Dr Taylor, as had been received with other recent emails sent by the Tribunal this month. In addition, the Tribunal sent Dr Taylor a copy of the listing notice by express post with a covering letter regarding the hearing and the dismissal power. This letter was delivered to Dr Taylor’s residential address on 18 February 2020. Finally, on the day of the interlocutory hearing, Dr Taylor informed the Tribunal that she was unable to attend due to, amongst other things, a Federal Court hearing on the same day; however she ultimately attended the interlocutory hearing by telephone.
Having regard to all of the above, the Tribunal is satisfied that Dr Taylor has been provided with sufficient notice of the dismissal application, the Tribunal hearing and been provided with a reasonable opportunity to file any evidence or submissions in support of her position on Comcare’s application. In this regard, the Tribunal notes that Dr Taylor did not say that she was unaware of the listing or requirements for submissions to be relied upon at the hearing and the consequences for failure to comply or attend. Accordingly, Dr Taylor has been afforded procedural fairness both in the substantive proceeding and in the dismissal application made by Comcare, including the Tribunal’s contemplation of the exercise of that discretionary power to dismiss under subsection 42A(5) of the AAT Act.
Dismissal is the proper remedy
Explanation for the delay
The Tribunal finds Dr Taylor’s explanation for the delay unsatisfactory. Dr Taylor has provided the Tribunal little by way of a credible explanation for her delay or failure to proceed with her application. In an email to the Tribunal on 3 February 2020, Dr Taylor stated that her non-compliance is ‘the result of the conduct of my employer’, but provided no further information in relation to this claim or when she would comply with the relevant directions. On 5 February 2020, Dr Taylor said that she had received ‘information about the matters relevant to this claim appeal and other matters’ that she was collating for provision to the Tribunal and Comcare, but at the interlocutory hearing on 20 February 2020, Dr Taylor said the evidence she now foreshadowed producing in the proceeding had only been received on 17 February 2020. Again, Dr Taylor has repeatedly made undertakings in this application regarding the status of her Evidence that has not been met over a considerable period of time. For example, on 3 January 2020, Dr Taylor said that her evidence was ‘almost there’, but Dr Taylor failed to provide that evidence on either 13 or 31 January 2020 in compliance with two sets of directions made by the Tribunal on 6 December 2019 and 17 January 2020, respectively. The Tribunal again notes that Dr Taylor has not provided any evidence, by way of a medical certificate or other documentation, regarding her health over recent months. While the Tribunal could accept that Dr Taylor may have experienced recent health issues, without such evidence, it cannot be satisfied that these explain the delay in proceeding with her application or complying with the Tribunal’s directions.
As referred to above in these reasons, in relation to the delayed provision by the Department of Health of summonsed documents in 2019, this cannot excuse Dr Taylor’s current non-compliance with the Tribunal’s directions. The Department produced tranches of documents on 30 August 2019, 23 September 2019 and 25 October 2019, with a small bundle of final documents provided by the Department on 17 December 2019, following a directions hearing held on the same day. In relation to this last tranche of documents, the relevant Tribunal directions at that time were made on 6 December 2019 for Dr Taylor’s Evidence to be filed and served by 13 January 2020. These directions were subsequently varied on 8 January 2020 for Dr Taylor’s Evidence to be provided by 17 January 2020. As Comcare contended, Dr Taylor has always been at liberty, if necessary following receipt of summonsed material, to file further evidence in the proceeding after the initial provision of her Evidence, but the time for her to file something in support of her application has long passed. In total, Dr Taylor’s unsatisfactory explanation for her continued delay weighs heavily in favour of the exercise of the Tribunal’s discretion to dismiss the application.
Prejudice to Comcare
In light of the current timetabling to list substantive hearings before the Tribunal, especially in workers’ compensation matters, the Tribunal accepts Comcare’s submission that, if Dr Taylor complied with the present directions in the near future and provided all of her evidence in the proceeding; a substantive hearing would likely not occur until later this year or, quite possibly, 2021. That would be approximately three years since the occurrence of the events on which Dr Taylor bases her claim between 21 February and 16 May 2018. As stated by the Tribunal in Evans:[31]
delay, by its nature in proceedings of this kind, may give rise to prejudice. It can be accepted that memories fade with passing time and, where particular details of past events are in dispute, this may diminish Comcare’s ability to present its case, as alleged.
[31] Evans at [107].
To this end, the Tribunal accepts that the likely delay in the application progressing in a timely manner would place both the Tribunal and Comcare in a difficult position in weighing the evidence in relation to the myriad of factual issues raised by Dr Taylor in her claim for compensation. On balance, the Tribunal does not consider that any such prejudice would be significant; this element therefore weighs only slightly in favour of the exercise of the discretion.
Merits of Dr Taylor’s application
In circumstances where no evidence is before the Tribunal (other than briefing letters and the Tribunal documents filed by Comcare pursuant to section 37 of the AAT Act), it is difficult to assess the merits of Dr Taylor’s application. Dr Taylor has made allegations regarding the conduct over a number of years of the Department, Comcare and its representative in this proceeding. These allegations remain unsubstantiated by Dr Taylor and there is no evidence before the Tribunal to support them. The compensation claim the subject of Dr Taylor’s application before the Tribunal is relatively non-complex and contained in its timeframe. It does appear, because of the exclusionary provisions in sections 5A and 5B(2) of the SRC Act, that there are some difficulties with that application, even if Dr Taylor’s employment is found to have contributed to a significant degree to her condition. However, in light of the lack of evidence filed in the proceeding, the Tribunal gives merit neutral treatment in weighing the exercise of its discretion to dismiss the application.
Best efforts of Dr Taylor to assist Tribunal
Dr Taylor has failed within a reasonable time to proceed with her application and to comply with a direction of the Tribunal. In this regard, Dr Taylor has not met the obligation on parties to an application before the Tribunal to use their best efforts to assist it in fulfilling its objectives in section 2A of the AAT Act. The Tribunal’s staff and members have expended significant and disproportionate time managing Dr Taylor’s application for almost one year; this includes preparation for and attendance at multiple directions and interlocutory hearings and correspondence regarding various matters in relation to the proceeding. Comcare has no doubt also expended significant resources in this application. In no way could the status of the application be said to be assisting in meeting the Tribunal’s objectives of providing an economical and quick mechanism of review. In addition, it is possible that other applicants’ matters may not have progressed in as timely a manner due to the inordinate amount of time the Tribunal has been required to spend managing Dr Taylor’s application.
Although Dr Taylor is self-represented, she has appeared before the Tribunal as a competent and articulate advocate. Dr Taylor has both currently and previously represented herself in legal or tribunal forums. In this regard and as previously referred to, Dr Taylor is the applicant in Federal Court application number ACD56/2019, Arlene Maree Taylor v Department of Health, which she commenced in August 2019. On 18 February 2020, that is, two days before the Tribunal’s interlocutory hearing of the dismissal application, Dr Taylor filed and served an Interlocutory Application and accompanying Affidavit in that proceeding. Dr Taylor is plainly actively participating and proceeding with her application in that forum, while failing to do so in her application before the Tribunal. That is, Dr Taylor has failed to file and serve any of her requested Evidence in her Tribunal application. In this way, the application has not progressed beyond the usual preliminary directions for material from both parties to further proceed with the application. As a result, Dr Taylor’s failure to use her best efforts to assist the Tribunal under subsection 33(1AB) of the AAT Act weighs in favour of the exercise of the discretion to dismiss the application.
Dismissal is the last resort
Because of the significance of the effect of the exercise of the Tribunal’s power under subsection 42A(5) of the AAT Act, the threshold to employ it is necessarily high; it should be used sparingly and as a last resort. The Tribunal is satisfied that this last resort has been reached in Dr Taylor’s application and it is appropriate for the Tribunal to use its power to dismiss that application.
The Tribunal has considered all procedural options available to it in determining Comcare’s dismissal application to ensure a proportionate and appropriate remedy in the administration of justice and in seeking fairness for both parties.[32] One such option is to list Dr Taylor’s application for hearing and determination in the near future. Plainly, doing so would result in significant unfairness to both parties if time is not allowed for each to properly investigate and present their respective case, including because Dr Taylor is yet to provide her Evidence in the proceeding and the parties have not filed and served their respective Statement of Facts, Issues and Contentions. Another option is to issue further procedural directions and attempt to continue closely managing the proceeding to seek to ensure the future timely compliance by Dr Taylor of those directions. This option requires some certainty or reasonable prospect of being effective. The history of this application and Dr Taylor’s continued failure to comply with directions militates against this likelihood. The Tribunal is not satisfied that Dr Taylor would comply with any such future directions issued by the Tribunal for her Evidence or any other procedural step in the application. To this end, the procedural history of the application raises real questions about the likelihood of further non-compliance by Dr Taylor. With an application that has been in the Tribunal since December 2018, where the first directions were made in March 2019, and from which the matter has not advanced, the option of simply allowing more time, in an open-ended manner, such as standing the application over until Dr Taylor is ready, willing or able to comply with the Tribunal’s directions (including at some stage during or after the completion of her Federal Court proceeding), is untenable.
[32] Per Evans at [112].
The Tribunal has granted multiple extensions of time for Dr Taylor to comply with directions for her to provide her Evidence and thus to proceed with her application; she has failed to do so within a reasonable time. Indeed, Dr Taylor remains non-compliant because she has not filed any of her Evidence in the proceeding, despite orders first being made to do so almost one year ago, in March 2019. In addition, Dr Taylor informed the Tribunal that she is prioritising her Federal Court proceeding; in this way, she will not proceed with her application until her Federal court proceeding progresses or indeed, potentially, concludes. Accordingly, the Tribunal has not been able to schedule any further conference or conciliation between the parties due to Dr Taylor’s failure to progress her application and her non-compliance, let alone being in a position to schedule a substantive hearing. On the day of the interlocutory hearing, Dr Taylor requested ‘one final extension’ to provide a ‘thorough response’ by 9 March 2020. What this ‘thorough response’ entails was said to amount only to ‘evidence’ and documentation Dr Taylor has purportedly obtained in the Federal Court proceeding; there was no reference to the provision of any statement from herself, any lay witness statements or medical evidence. In light of the procedural history of this application, the Tribunal cannot have any confidence in Dr Taylor’s most recent undertaking that she would comply with a further variation of the Tribunal’s current directions and provide all of her Evidence in the proceeding by 9 March 2020. The Tribunal is not satisfied that any further reasonable extensions of time would elicit from Dr Taylor the required Evidence in order to proceed with her application. In this regard, including Dr Taylor’s submissions at the interlocutory hearing regarding her current approach to this application being one of lower priority to her Federal Court proceeding, the Tribunal considers that Dr Taylor has effectively disengaged from her application in the Tribunal in order to pursue other claims elsewhere. In this way, it is apparent from the facts of this matter that Dr Taylor is not presently pursuing the application and the Tribunal is entitled to exercise the power to dismiss.[33]
[33] Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299; Re Byrt and Commissioner of Taxation [2013] AATA 862.
The decision to dismiss an application is not an easy one; it should not be an easy decision given its consequences for an applicant. The Tribunal has considered all of the matters before it, and weighed the various interests and options available in the circumstances. As the Tribunal said in Evans:[34]
It is never entirely satisfactory or fair to an applicant to dismiss an application in circumstances such as this. But unfairness is a matter of relativity. It is a matter that requires competing interests to be weighed and rights to be considered. These are matters about which sensible people acting reasonably when dealing with identical facts and circumstances might differ. It is no easy task. That said, balancing considerations of fairness and weighing other considerations, the particular circumstances of this case render it appropriate to dismiss Mr Evans’ applications.
[34] Evans at [116].
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.
I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.
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Associate
Dated: 28 February 2020
Date(s) of hearing: 20 February 2020 Date final submissions received: 20 February 2020 Applicant: By telephone Solicitors for Respondent: Ms Athena Cains, McInnes Wilson Lawyers
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