The Applicant 0108 of 2014 and Secretary, Department of Social Services (Social services second review)
[2019] AATA 4091
•28 August 2019
The Applicant 0108 of 2014 and Secretary, Department of Social Services (Social services second review) [2019] AATA 4091 (28 August 2019)
Division:GENERAL DIVISION
File Number: 2014/0108
Re:0108 of 2014
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:28 August 2019
Place:Perth
The Tribunal directs that the Applicant’s application for review of a decision is dismissed pursuant to s 42A(5) of the Administrative Appeals Act 1975 (Cth).
.......[sgd].................................................................
Deputy President Boyle
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – portability of payments – breach of direction – failure within reasonable time to proceed with application – application for review of decision is dismissed – application for indefinite stay of proceedings dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 40, 42A(5)(a), 42A(5)(b)
Social Security Act 1991 (Cth) – s 1218AAA(1)
CASES
Karan v Minister for Home Affairs [2019] FCAFC 139
NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559
Singh v Minister for Immigration and Border Protection [2016] FCA 108Zubair v Minister for Immigration and Border Protection [2017] FCCA 2905
REASONS FOR DECISION
Deputy President Boyle
28 August 2019
THE APPLICATIONS
Two applications are relevantly before the Tribunal. The first is an application by the Respondent (the Secretary) to dismiss the substantive application under ss 42A(5)(a) and/or (b) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AATAct).
The second is an application by the Applicant for an indefinite stay of the proceedings.The substantive application seeks review of the then Social Security Appeals Tribunal
(the SSAT) decision dated 28 November 2013 not to make a written declaration of
“unlimited portability” of Disability Support Pension (the DSP) under s 1218AAA(1) of the Social Security Act 1991 (Cth) (the SSA).BACKGROUND
This matter has a long history, as does the Secretary’s application to dismiss the substantive application. The history of both, at least up to May 2018, is set out in the Tribunal’s decision and reasons for direction of 11 May 2018. Those reasons are attached as Annexure A to these reasons for decision. The Tribunal relies on the relevant history set out in those reasons.
For the reasons set out in the Tribunal’s decision of 11 May 2018 the Tribunal was not prepared to dismiss the substantive application at that time. The Tribunal wanted to make sure that every last chance had been given to the Applicant to avoid that result.
The Tribunal made the position clear in the following paragraphs of the reasons for direction of 11 May 2018:
CONCLUSION
124.The Tribunal is mindful of the need for applications to be dealt with economically and quickly and using a procedure that is proportionate to the importance and complexity of the matter (s 2A of the AAT Act). The Tribunal is also mindful of the fact that the Applicant has for misconceived legal reasons (in part at least) failed to cooperate in the process by which the evidence necessary for the Tribunal to make a decision is to be provided, and has, in the Tribunal’s assessment, breached the direction to attend the appointment with Dr Floyd. However, the Tribunal is also mindful of the cognitive impairment, albeit ill-defined, that the Applicant suffers from and the fact that the Applicant is self-represented. The Tribunal therefore wants to ensure that every effort is made to ensure that justice is done to both parties and that a proper, useful report can be prepared by the Secretary’s preferred occupational physician in circumstances that do not prejudice the Applicant.
125.Before the “last resort” direction of dismissing the application under
s 42A(5) of the AAT Act is made, the Tribunal wants to see whether
“some other course … to secure compliance”, to use the language of the Court in Charara, is possible (see [117] above). The most obvious
“other course” would be the parties agreeing on some process or protocols which would enable Dr Floyd to obtain the information from the Applicant through a process that would enable him to prepare a report which satisfied his professional standards, but which did not prejudice the Applicant given her cognitive impairment. While the Tribunal did attempt to explore the potential for that solution at the hearing without success, the Tribunal is not satisfied that all possibilities, with the benefit of the parties having had time to formally consider that process, have been sufficiently explored. To this end the Tribunal directs the parties to confer, with the assistance of a Tribunal Conference Registrar, to see whether agreement on protocols or a process for the Applicant to be examined by the Secretary’s preferred occupational physician can be reached.
126.The Tribunal wishes to make it clear to the Applicant that it considers that the Applicant has not complied with the direction to attend the appointment with the Secretary’s preferred occupational physician and that the conditions giving rise to the right to exercise the discretion under s 42A(5) of the AAT Act have been satisfied. The Tribunal is not, however, satisfied, at this time anyway, that the point has been reached where dismissal is the appropriate remedy.
The Tribunal made the following directions in the 11 May 2018 decision:
1.on a date within the next five weeks to be fixed by the Tribunal, the parties confer in the presence of a Tribunal Conference Registrar to attempt to reach agreement on a process or protocols for the Applicant to be examined by the Respondent’s preferred occupational physician for the purpose of the Respondent’s preferred occupational physician preparing a report; and
2.if agreement on a process or protocols is reached, such agreement is to be reduced to writing and to be signed by the parties; and
3.the Respondent’s application for dismissal of the application pursuant to
s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) be adjourned to a date to be fixed pending the outcome of the conferral referred to in direction 1 and any examination of the Applicant following such conferral.
EVENTS SINCE MAY 2018
On 15 May 2018, following the directions made by the Tribunal on 11 May 2018,
the Secretary wrote to the Applicant asking the Applicant to advise under what circumstances the Applicant would be prepared to attend and participate in an examination with Dr Floyd, the Secretary’s preferred occupational physician.On 22 May 2018, having determined the parties’ availability, the Tribunal wrote to the parties advising that the matter had been listed for a conferral before a
Tribunal Conference Registrar on 5 June 2018.On 3 June 2018 the Applicant responded by email to the Secretary’s letter of
15 May 2018. Much of that email repeated the claims that the Applicant had made in the hearing leading up to the directions being made on 11 May 2018 that Dr Floyd had “ambushed” her and “engaged in intimidatory behaviour” when she attended the meeting with Dr Floyd in November 2017 and had refused to answer questions put to her by
Dr Floyd. In her email of 3 June 2018 the Applicant said that as she had
“already suggested ‘a process or protocol[s]’ (Direction of 11 May 2018) … it is now for your preferred occupational physician to counter suggest what he considers acceptable”.The Tribunal assumes that the “process or protocols” to which the Applicant is referring in that passage are what she had put forward at the hearing on 4 April 2018, the substance of which were that she would only answer Dr Floyd’s questions in writing. That proposal had been canvassed at some length in the hearing on 4 April 2018. The relevant exchange with the Tribunal is set out in [122] of the reasons for direction of 11 May 2018. The Tribunal thought that it was made clear in the exchange with the Applicant that her proposal, which was what she had proposed when she attended Dr Floyd’s rooms in November 2017, was not acceptable. The whole point of the directions made on
11 May 2018 was to see whether there was some other protocol or procedure which would be acceptable to both parties. That was, the Tribunal thought, made clear in
[124] to [126] in the 11 May 2018 reasons for direction (see [4] above).The Tribunal also made it clear to the Applicant in [124] of the reasons of 11 May 2018 that she had, at that time, “failed to cooperate in the process by which the evidence necessary for the Tribunal to make a decision is to be provided, and has, in the tribunal’s assessment, breached the direction to attend the appointment with Dr Floyd”.
On 4 June 2018 the Secretary wrote to Dr Floyd. That letter set out the terms of
direction 1 made on 11 May 2018, namely that the “parties confer … to attempt to reach agreement on a process or protocols for the Applicant to be examined … for the purpose of … preparing a report” and asked Dr Floyd to advise whether “… it remains your opinion, as expressed on 30 November 2017, that a ‘full independent assessment’
is impossible without the applicant’s reasonable co-operation, including in providing an oral history”.On 4 June 2018 the Secretary also wrote to the Tribunal asking that the conferral listed for 5 June 2018 be vacated to allow the Secretary to consult with Dr Floyd on a possible protocol for the Applicant to be examined by him for preparation of a report.
On 5 June 2018 the Tribunal relisted the conferral for 14 June 2018.
On 11 June 2018 the Applicant lodged an appeal in the Federal Court of Australia in relation to the directions made by the Tribunal on 11 May 2018. Because of the Applicant’s appeal, the conferral listed for 14 June 2018 was vacated.
On 14 June 2018 the operations manager of MLCOA, the company through which
Dr Floyd is retained, advised as follows:
I can confirm it remains his opinion that a full independent assessment is impossible without [the Applicant’s] reasonable co-operation, including in providing an oral history.
Dr Floyd requires [the Applicant] to participate actively in an oral history taking.
As such this is a dynamic situation that requires cooperation. He has outlined in his previous report, following her refusal to proceed, attempts and opportunities to accommodate her concerns. These remain. He is unable to furnish an acceptable independent assessment based on to and fro written responses as [the Applicant] was requesting.
On 13 July 2018 the appeal to the Federal Court was withdrawn by consent.
On 27 July 2018 the conferral was relisted for 6 August 2018.
On 29 July 2018 the Applicant requested that the conferral be vacated as she was on holiday. The conferral was relisted for 3 October 2018
On 22 September 2018 the Applicant asked that the proceedings be put on hold because she had discovered a lump on her breast. She asked that proceedings be put on hold “until the investigations are concluded when [she] will contact you again”. The request was accompanied by a medical certificate dated 17 July 2018 issued by Dr Tabrizian certifying the Applicant “unfit for work from to [sic] 17th July 2018 to 17th January 2018 [sic].”
The Secretary did not oppose the matter being held in abeyance until January 2019.
On 18 January 2019 the Applicant requested that the proceedings be placed on hold
“until I am well enough to attend to them”. That request was accompanied by a certificate dated 12 January 2019 from Dr Tabrizian certifying that the Applicant “is unfit for work from to [sic] 17th January 2019 to 17th August 2019”. The request also attached a letter from Dr Adam Nuttall dated 14 January 2019 addressed “To whom it may concern” which said “The above named [the Applicant] is being investigated for possible breast cancer”.
By email dated 22 January 2019, which was copied to the Applicant, the Secretary advised that the Applicant’s request for the matter to be held in abeyance was opposed. The Secretary’s email, amongst other things, noted that the Applicant had provided a “non-descript medical certificate which simply states that she is unable to work” and pointing out that the proceeding had been on foot for many years. It also advised that should the parties be unable to reach an agreement on how the Applicant was to attend the meeting with Dr Floyd, the Secretary would request the matter be referred back to Deputy President Boyle for dismissal.
On 1 February 2019 the Tribunal sent an email to the Applicant as follows:
Before the Tribunal can consider your request for a further adjournment of the Conferral can you please provide some additional information to support your request.
Specifically, can you please provide a letter from your doctor advising the Tribunal what investigations are currently being undertaken regarding your possible breast cancer diagnosis and when these investigations are expected to be finalised.
On 9 February 2019 the Applicant responded to the Tribunal’s email of 1 February as follows:
I would be grateful if you would specific [sic] under what legislation exactly you are requesting additional personal medical information.
On 11 February 2019 the Tribunal responded to the Applicant as follows:
Information clarifying your current circumstances have been requested by the tribunal in response to your request for further adjournment, which has been opposed by the respondent.
Section 2A(b) of the Administrative Appeals Tribunal Act 1975 requires the tribunal to provide a review process that is fair, just, economical and quick.
In order to consider any delay in proceeding with your review the tribunal will require information that substantiates your current incapacity and the expected period of time that may be required.
Should the matter fail to proceed, the Tribunal may exercise its power under section 42A(5) of the Administrative Appeals Tribunal Act 1975 to dismiss the matter.
On 17 February 2019 the Applicant responded to the Tribunal’s email of 11 February 2019 as follows:
In my 9 February 2019 email I asked the AAT to specifically quote the legislation requiring me to provide further personal and confidential medical information.
In your email of 11 February 2019 the AAT has not done so. In referencing the AAT Act s2A(b) and s42A(5) neither of these statutes make reference to medical information or the need for private and confidential information.
As a self-represented litigant it is not unreasonable for me to ask under what legislation makes my provision of medical certificate and a letter from my doctor confirming “possible breast cancer” insufficient.
I ask again to please tell me what legislation empowers the AAT to demand additional private and confidential medical information.
On 25 February 2019 the matter was listed for a conferral before a Tribunal Conference Registrar to be held on 11 March 2019. Following various communications between the Tribunal Conference Registrar and the parties it was directed that the conferral was to take place by email. On 6 March 2019 the Tribunal Conference Registrar spoke to the Applicant who requested that the conferral be by a 3-way email exchange in real time commencing at 11.30am. That time was later changed to 2:00pm, however, the Applicant did not respond to the advice provided to her by way of email to alert her to the change of time.
On 11 March 2019 the Tribunal Conference Registrar wrote to the Applicant confirming that the conferral had proceeded by real-time email at 11.30am and again at 2:00pm on
11 March 2019 and that the Secretary’s representative had attended.
The Tribunal Conference Registrar further advised that because the Applicant had failed to attend the conferral, the Secretary’s representative had requested the matter be referred to the Deputy President so that the dismissal hearing could be resumed.
On 19 March 2019 the Secretary’s dismissal application, which had been adjourned by the directions made on 11 May 2018 for a conferral to attempt to reach agreement on a process or protocol for the Applicant to be examined by Dr Floyd, was relisted for hearing on 2 April 2019.
On 20 March 2019 the Applicant wrote to the Tribunal complaining about the conduct of the Tribunal Conference Registrar and enclosing a letter from the Peel Health Campus which was as follows:
This is to certify that … [the Applicant] was admitted to the Peel Health Campus Emergency Department on the 11/03/2019 at 12:06 and was discharged on 11/03/2019 at 18:18.
On 1 April 2019 the parties’ submissions were received by the Tribunal. Both parties’ submissions addressed the Applicant’s request for an indefinite adjournment of the matter and the Secretary’s application for dismissal. The Secretary’s submissions in support of the application for dismissal were substantially the same as the submissions that the Secretary had sent to the Tribunal and the Applicant by email on 8 March 2019.
THE HEARING
The applications for dismissal and for an adjournment were heard on 2 April 2019.
The Applicant was unrepresented and the Secretary was represented by
Mr Burgess.THE PARTIES’ SUBMISSIONS
The substance of the Secretary’s submissions made prior to the hearing on 2 April 2019 was as follows (Respondent’s email dated 1 April 2019):
(a)the Applicant has failed to provide any details regarding reasons why she cannot participate in the conferral ordered on 11 May 2018;
(b)the Tribunal wrote to the Applicant on 1 February 2019 seeking reasons why the Applicant’s condition meant that she was unable to participate in a conferral;
(c)
the Applicant wrote to the Tribunal on 9 February 2019, 17 February 2019 and
1 March 2019 effectively refusing to provide that information;
(d)the medical certificates provided by the Applicant prior to the hearing do not provide any reason why the Applicant would not be able to participate in a conferral or a hearing. In that regard the Respondent cites the Federal Court and Federal Circuit Court decisions in Zubair v Minister for Immigration and Anor[1] (Zubair) at [7], NAKX v Minister for Immigration, Multicultural and Indigenous Affairs[2] (NAKX) at [5]-[10] and Singh v Minister for Immigration and Border Protection[3] (Singh) at [2] to support a dismissal;
[1] [2017] FCCA 2905.
[2] [2003] FCA 1559.
[3] [2016] FCA 108.
(e)since 25 February 2019 the Applicant has been on notice that there was to be a conferral on 11 March 2019. To accommodate the Applicant the unusual course was taken for the conferral to proceed by way of a real-time 3-way email exchange with the parties and the Tribunal Conference Registrar; and
(f)the matter has been on foot since 2014 (application lodged 9 January 2014) with little progress.
The substance of the Applicant’s submissions were (Applicant’s email dated 1 April 2019):
(a)on 1 February 2019 the Tribunal sought from the Applicant additional information to support the Applicant’s request for an adjournment due to medical developments;
(b)the Applicant had already provided a medical certificate from a doctor saying that she was being investigated for “possible breast cancer”;
(c)
the dismissal application cannot take place until some fundamental questions of procedure have been answered. The Applicant refers to the facts set out in
[21]-[26] above and submits that:
…it is incumbent upon the AAT to inform me under what specific legislation the AT has the right to A) ignore a medical certificate and a letter from a doctor currently suspending her activities and B) to specify exactly what legislation entitles the AAT to demand additional private and confidential medical information beyond a medical certificate and letter from a treating doctor;
(d)the Applicant further informed the AAT that she would be unable to attend the conferral due to a medical procedure that day;
(e)a refusal by the Tribunal to specify which legislation enables it to demand private and confidential medical information is a denial of natural justice.
(f)
the Applicant received a phone call from the Tribunal Conference Registrar on
6 March 2019 at 5.50 pm. The “higher courts” should correspond with parties by letter or email. Even if the higher courts were to contact a party by telephone,
it would not be done outside normal business hours. Given that the AAT has “numerous medical reports from a qualified doctor confirming that the applicant has [a] cognitive impairment, is it appropriate to telephone an applicant?”;
(g)the Applicant was advised by the Conference Registrar that if she was seeking an adjournment of the conferral listed for 11 March 2019 because she was having a procedure on that day, the adjournment was opposed by the Respondent and the Applicant needed to provide details of what the procedure was in order to substantiate the need for an adjournment. The Applicant says that she was not given sufficient time to provide material in relation to a procedure that she was to have on 11 March 2019;
(h)the Applicant could not attend the procedure in any event as she “ended up in the emergency department of her local hospital” on 11 March 2019; and
(i)the Applicant has every intention of continuing with the substantive application but wants the matter put on hold until “my medical situation is resolved”.
The Tribunal notes that the claim that the Applicant has provided “numerous medical reports” relating to a cognitive impairment is incorrect. Other than references to a cognitive impairment by her treating general practitioner, the Applicant has not provided any specialist or other medical evidence of a cognitive impairment or evidence of what that means. The Tribunal is satisfied that the Applicant was able to and did participate in the hearing of the application on 2 April 2019, as she has on the other occasions when she has appeared before the Tribunal, and that her claimed cognitive impairment did not affect her capacity to participate in the proceedings.[4] The Tribunal further notes that the basis upon which the Applicant receives the DSP is physical impairment arising from an immunodeficiency condition, not any cognitive impairment or psychological condition.
[4] Karan v Minister for Home Affairs [2019] FCAFC 139, [22] (Rares, Griffiths and Burley JJ).
Subsequent to the hearing on 2 April 2019, further submissions were provided by the Applicant and the Secretary. On 9 April 2019 the Applicant filed an affidavit sworn by her on that date by which she advised:
(a)That on 7 March 2019 she attended an appointment with her doctor at which her doctor directed her to seek an appointment with a breast surgeon at St John of God Hospital, Midland. She immediately went to St John of God, Midland and was told by the doctor’s secretary that “an appointment would be impossible”.
(b)On her two hour journey home from the hospital she experienced extreme exhaustion. She put this down to her “immune system…coping with ‘possible breast cancer’”.
(c)After that she slept for two days only getting up to go to the toilet. On the third day she was extremely dehydrated and began to feel hungry, however, when she prepared food she had to lie down as she knew that she was about to pass out.
(d)On the third night she began to experience sounds coming from her chest; “wheezing, gurgling, piping, spiralling sounds which continued whenever [she] lay down the next day”.
(e)She thought that she might be developing pneumonia. While that in itself did not worry her, she “knew that pneumonia could be caused by fungal infections”.
(f)She went to her local hospital and spent two hours sleeping in the waiting room before being admitted to the emergency department. Investigations showed no fungus and she was told that she had viral flu. She did not think to get a medical certificate.
(g)The AAT must be aware that flu is contagious.
(h)At the hearing on 2 April 2019 the Tribunal had indicated that what she had provided to that point was not sufficient to justify an adjournment. An affidavit was necessary. This is that affidavit.
On 3 May 2019 the Applicant provided to the Tribunal a letter dated 1 May 2019 signed by Dr Adam Nuttall addressed “To whom it may concern” advising that:
(a)The Applicant had detected a lump on her left breast in September 2018 and that “Ultra sound testing confirmed a lesion 15 x 13 x 9 mm with speculated borders and marked surrounding vascularity.” and that “Subsequent ultra sound scan December 2018 indicates a growth 26 x 14 x 25mm with adjacent smaller lesion of 7.6 x 2.4 mm.”
(b)He has been seeing the Applicant fortnightly since November 2018 and while she is a “motivated patient” she undertakes her own research for treatment options and has refused mammogram and core biopsy. She has elected to use immune strengthening measures and in addition is using a combination of herbs, Vitamin B17 and alternative treatments.
(c)
Her latest ultrasound “showed a pleasing reduction, 24 x 14 x 22 mm and 4.8 x 2.2 x 4.7”. A PET/CT scan describes her lesions as “likely malignant”.
The Applicant has booked fortnightly appointments up to the end of the year to monitor her progress. It is difficult to predict when treatment will be completed.
(d)
The doctor has advised her to suspend all activities that cause her stress.
This would include any legal matters.
On 9 May 2019 the Secretary’s lawyers advised that they were obtaining instructions on the matters raised by the Applicant and would revert to the Tribunal when they had those instructions.
On 11 July 2018 the Secretary’s lawyers provided submissions in response to the Applicant’s submissions made after the 2 April 2019 hearing. The thrust of those submissions was:
(a)The Secretary pressed the application for the dismissal of the substantive application under s 42A(5)(a) and/or (b) of the AAT Act.
(b)The Applicant’s application for the hearing on 2 April 2019 to be adjourned was dealt with on that day and the Applicant’s application for the substantive matter to be held in abeyance and the Secretary’s application for dismissal of the substantive application proceeded on that day.
(c)The Applicant’s affidavit of 9 April 2019 explaining why she did not attend the conferral on 11 March 2019 is:
…irrelevant to the question of whether the application should be dismissed for the applicant’s failure to comply with a direction to attend the appointment with Dr Floyd or progress that matter. The purpose of the conferral was for the parties to confer about whether agreement could be reached for a mechanism for the applicant to meaningfully attend a medical appointment with Dr Floyd. The parties conferred at the dismissal hearing in April 2019 and the applicant stood by her refusal to attend a medical appointment except on “her terms”…
…
The respondent notes that this matter has proceeded to numerous dismissal hearings since the application was first lodged with the Tribunal in 2014. Both parties have provided submissions regarding whether the matter should be dismissed and the parties have appeared and made oral submissions on the issue as recently as 2 April 2019. There are no further ‘activities’ for the applicant to undertake in respect of the application for dismissal…
CONSIDERATION
In support of her application for what is, in effect, an indefinite stay of the matter,
the Applicant has provided:
(i)a certificate dated 17 July 2018 issued by Dr Tabrizian certifying that the Applicant “is unfit for work from to [sic] 17th July 2018 to 17th January 2018 [sic]”.
(ii)a certificate dated 12 January 2019 issued by Dr Tabrizian certifying that the Applicant “is unfit for work from to [sic] 17th January 2019 to
17th August 2019”.(iii)
a letter dated 14 January 2019 from Dr Adam Nuttall addressed
“To whom it may concern” which said “The above named is being investigated for possible breast cancer”.
(iv)Dr Nuttall’s letter dated 1 May 2019 (see [37] above).
Obviously at the time of the hearing of the application on 2 April 2019, the Tribunal did not have before it the documents identified in [36] and [37] above. Even if Dr Nuttall’s letter of 1 May 2019 provides some basis for staying the substantive proceedings or even for adjourning the hearing of the applications on 2 April 2019, that evidence was not before the Tribunal on 2 April 2019. At that time the only evidence was that referred to in
[40(i)-(iii)] above. All that the two medical certificates issued by Dr Tabrizian say is that the Applicant is unfit for work. That is not surprising and hardly contentious given that the Applicant is, and has been for many years, in receipt of a full Disability Support Pension because of her physical disabilities. The letter from Dr Nuttall dated 14 January 2019 advised that the Applicant was being “investigated for possible breast cancer”. It did not say what that meant or what investigations were being carried out.
When the Tribunal asked the Applicant for further information prior to the hearing she refused to provide it (refer [23]-[26] above). Even at the hearing when the inadequacy of the information that was contained in the two certificates and the letter of 14 January 2019 from Dr Nuttall was again pointed out to the Applicant, she reverted to her argument that unless the Tribunal could point to a specific legislative provision that enables the Tribunal to demand production of private and confidential medical information she would not provide it. The following exchanges at the hearing are indicative of the Applicant’s position:
DEPUTY PRESIDENT: As your submissions say, the tribunal responded saying we need further information. You then chose to engage in an argument with the tribunal saying what’s your statutory power to request the further information?
APPLICANT: Right, and I’m not allowed to?[5]
[5] Transcript at 8.
…
APPLICANT: So I provide no specific date and I was very clear of my intention to continue. Then you went on that the AAT responded to me quoting section 2A(b) of the Administrative Appeals Act and 42A(5). … - that there is something in that letter from the AAT that told me that the AAT has the right to ask for private and confidential medical information. Can you point out for me so I understand - - -
DEPUTY PRESIDENT: The response was clear and it says you can’t just provide a one liner and say that you’re having investigations. This was the - is this is the 14 January certificate from AHG Super Clinic?
The abovenamed is being investigated for possible breast cancer.
APPLICANT: Yes.
DEPUTY PRESIDENT: Well, that doesn’t tell us anything.
APPLICANT: Well, it tells you that I’m being investigated for possible breast cancer.[6]
[6] Transcript at 9.
DEPUTY PRESIDENT: What were the steps that were being taken? What has been the result of that? That’s now a couple of months old.
APPLICANT: Okay, can we - can I say I have no problems providing medical information in respect of my application for portability. My request for adjournment - the medical information for the request for the adjournment, it has words to the effect - nothing to do with portability. It is saying that there’s a possible breast cancer. I will either die from it, at which point the case ceases so you don’t have a problem or I will recover from it at which point the case begins. I am - I wish to know so that I don’t do anything that is wrong. I wish to know what legislation - - -
DEPUTY PRESIDENT: It’s is not a matter of legislation, Applicant 0108 of 2014.
APPLICANT: - - - compels me to disclose private and confidential medical - - -
DEPUTY PRESIDENT: We’re just going over the same ground.
APPLICANT: Well, could we - could my question be answered?
DEPUTY PRESIDENT: That is insufficient information upon - - -
APPLICANT: What is insufficient - - -
DEPUTY PRESIDENT: Just let me finish. Please stop cutting across me.
A statement that:
The abovenamed is being investigated for possible breast cancer
is not telling this tribunal, me, anything upon which I could exercise the discretion to adjourn a matter. We sought further information from you and the cases that the respondent - the law is reasonably clear that you have to set out proper medical grounds, a single - - -
APPLICANT: I’m sorry, what law is this?
DEPUTY PRESIDENT: Just - - -
APPLICANT: This is what I’m trying to find out. What is the law?
DEPUTY PRESIDENT: Well, Applicant 0108 of 2014, we’ve been trying to tell you and you won’t listen.[7]
[7] Transcript at 10.
…
DEPUTY PRESIDENT: Well, I don’t know how else to say it. This is an exercise of a discretion to grant an adjournment or to do anything that suspends the proceedings. A simple one - and that has to - I have to be convinced there is a legitimate reason. A single statement that,
“The abovenamed is being investigated for possible breast cancer”, is not sufficient.[8]
[8] Transcript at 11.
…
DEPUTY PRESIDENT: We pointed out to you, we sought further information like what was the treatment being done, you know, is there an update on the treatment, for instance?
The fact that you’re being investigated - what has the investigation disclosed?
APPLICANT: It has disclosed that I have - no, I need to really clarify, I think you’re saying to me you have a suspicion that the letter from the doctor talking of the possible breast cancer is possibly not a doctor.
Is this what - - -
…
APPLICANT: Because this is private and confidential information between my doctor and myself. I have no problems providing the AAT with medical information directly related to my request for portability. This has nothing to do with my request for portability. This is a temporary illness that I have which will be temporary whether I survive it or not. I don’t have to show that it’s fully treated, diagnosed, whatever the key phrases are.
DEPUTY PRESIDENT: That’s your choice to do that but there’s insufficient information for us to be able to grant an indefinite adjournment on a one-liner from a clinic.[9]
[9] Transcript at 12.
In the end, there was, in the Tribunal’s view insufficient evidence to justify an adjournment of the hearing of the two applications on 2 April 2019. The parties had made their written submissions and made further oral submissions on the Secretary’s application for dismissal and on the Applicant’s application for an indefinite stay of the proceedings.
The authorities to which the Secretary referred in her submissions dealt with applications for adjournments of a hearing rather than of an indefinite adjournment of the whole matter. It is, in the Tribunal’ view, likely that the prejudice which would be caused to the Secretary if an indefinite adjournment of the matter were granted would be greater than the prejudice that might result from the adjournment of a hearing only. Similarly the prejudice to public interest of the Tribunal dealing with matters efficiently and quickly
(see s 2A of AAT Act) would be greater in the case of a matter being adjourned or suspended indefinitely rather than just a hearing being adjourned. The authorities which dealt with adjournments of hearings are, in the Tribunal’s view, still an appropriate guide as to how the Applicant’s indefinite adjournment of the matter should be dealt with.[10]
[10] See NAKX v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 1559 at [5]- [10] per Lindgren J; cases cited by Lucev J in Zubair v Minister for Immigration and Anor [2017] FCCA 2905 at [7] and Singh per Pagone J at [2].
The Tribunal assumes that the primary purpose of the Applicant’s affidavit provided after the hearing was to explain her non-attendance at the conferral on 11 March 2019 rather than to support the Applicant’s application for an indefinite adjournment or to put on evidence to resist the Secretary’s application for dismissal. The Applicant’s non-attendance at the conference on 11 March 2019 is not critical to the present consideration. The Applicant’s non-attendance at that conferral is not the basis upon which the Secretary brings the dismissal application. Further, the purpose of that conferral in 11 March 2019 was to see if a process or a protocol for the Applicant to attend Dr Floyd could be agreed. The Applicant confirmed at the hearing on 2 April 2019 that it was not going to be possible to reach an agreement on such a process or protocol
(see [53] below). The conferral has in effect taken place and the Tribunal is satisfied that the parties are unable to agree on a mechanism or protocol.
The Tribunal acknowledges that the letter from Dr Nuttall dated 1 May 2019 does provide some evidence to support the Applicant’s application for an indefinite stay of the proceedings.
In what order should the applications be dealt with?
Before the Tribunal considers either of the present applications, consideration needs to be given to the order in which they should be dealt with. In that regard, in considering whether to exercise the discretion to indefinitely stay, or even to stay for a specific period, it is relevant to consider the current state of the proceedings. The effect of a stay would be to suspend the proceedings which would, whenever the stay came to an end, resume where they left off. In the present case if a stay was granted without the Secretary’s application to dismiss being dealt with, the proceedings would resume with the determination the Secretary’s application for dismissal of the proceedings. There would be no point in staying the proceedings if they will be dismissed once the stay comes to an end. The circumstances which have given rise to the Secretary’s application for dismissal are not going to change during any period of suspension.
Accordingly, it is appropriate in this case to consider the Secretary’s application for dismissal before considering what, if any, stay of the proceedings should be granted.
The Secretary’s application for dismissal
As noted above, the Secretary’s application for dismissal of the application has been on foot for a considerable time. The Secretary’s application for dismissal has been the subject of several previous hearings, the last of which, prior to the hearing on 2 April 2019, was the hearing in April 2018 which resulted in the orders of 11 May 2018 (see [99]-[101] of the reasons for direction dated 11 May 2018). As noted above, the direction made on 11 May 2018 was that the application for dismissal be adjourned “pending the outcome of the conferral” to determine whether a protocol or procedures for the Applicant to be examined by Dr Floyd could be agreed.
Obviously it was the Tribunal’s hope, and reasonable expectation, that the process envisaged by the Tribunal (see [4] and [5] above) would not take some 12 months and still be unable to reach any form of agreement. That, unfortunately, is what has occurred.
As was made clear in the Tribunal’s reasons for direction of 11 May 2018, the Applicant is in breach of the Tribunal’s direction that she attend to be examined by Dr Floyd
(see [102], [105], [109], [120] and [126] of the reasons of 11 May 2018). As was also made clear in the decision of 11 May 2018, the conferral process to see if some agreement could be reached for an examination by Dr Floyd was the process by which the “last resort” of the substantive application being dismissed might be avoided
(see [125] of 11 May 2018 reasons for direction at [4] above).
The hope that an agreement on protocols for an examination could be reached to avoid the “last resort” of dismissing the application has not been fulfilled. That, in the Tribunals’ view is through no fault of the Secretary. Unfortunately, notwithstanding that the direction for conferral was to afford the Applicant the opportunity to avoid her application being dismissed, she has not taken that opportunity. On the contrary, the Applicant appears to have been obstructive and uncooperative in engaging in a process that was put in place for her benefit. The process was not a difficult one, simply to engage in a conferral to see whether common ground could be reached. The chronology set out in [13] to [31] above speaks for itself.
The fact is that despite the lapse of nearly 12 months between the orders being made on 11 May 2018 and the re-listed hearing of the Secretary’s application for dismissal on
2 April 2019, the parties were not able to reach common ground on protocols for Dr Floyd to examine the Applicant. At the hearing on 2 April 2019 the Tribunal again explored the potential for some form of agreement for that examination by Dr Floyd to take place.[11] It is clear to the Tribunal that there is no common ground. The Applicant’s position remains that she will not engage with Dr Floyd.[12] Notwithstanding the unequivocal finding in the reasons for direction of 11 May 2018 that the Applicant did not comply with the direction for her to attend to be examined by Dr Floyd (see [124]-[126]) the Applicant still tries to argue that she did comply by merely attending. That issue has been dealt with. As noted above at [4], at [126] of the 11 May 2018 reasons the following was said:
[11] Transcript at 28-34.
[12] Transcript at 41.
The Tribunal wishes to make it clear to the Applicant that it considers that the Applicant has not complied with the direction to attend the appointment with the Secretary’s preferred occupational physician and that the conditions giving rise to the right to exercise the discretion under s42A(5) of the AAT Act have been satisfied.
Tribunal objective – s 2A of the AAT Act
As was also made clear in the 11 May 2018 reasons for direction at [124], this Tribunal is, by virtue of s 2A of the AAT Act, required to deal with matters economically and quickly using procedures that are proportionate to the importance and complexity of the matter. The substantive application in this matter is for indefinite portability of DSP under
s 1218AAA(1) of the SSA. The Applicant currently receives a full DSP. Accordingly,
this is not a matter where the Applicant is seeking payment of an entitlement. She already receives her full entitlement. Further, the Applicant will in around two years, be able to convert her DSP into an equivalent Age Pension which will enable indefinite portability. These factors, in the Tribunal’s view, make the matter, for the purposes of s 2A of the AAT Act, less important than a case where the applicant is not receiving a benefit.As to the question of proportionality, economic resolution and quickness of resolution,
the Tribunal notes that this application has now been on foot since 9 January 2014, that is, for over 5 years. During that time the application has been the subject of 15 hearings before the Tribunal or a Tribunal Conference Registrar. It has also been the subject of four applications to the Federal Court the latest of which was the abortive appeal lodged in the Federal Court on 11 June 2018 in relation to the directions made by the Tribunal on
11 May 2018. This matter has, in the Tribunal’s assessment, already consumed an inordinate amount of this Tribunal’s and the Federal Court’s time given its nature and importance.DECISION
As was made clear in the reasons for direction of 11 May 2018, the Applicant is in breach of the Tribunal’s direction of September 2017 requiring the Applicant to attend an appointment with the Secretary’s preferred occupational physician. The Applicant is, therefore, in breach of s 42A(5)(b) of the AAT Act. Further, the Applicant has, in breach of s 42A(5)(a) failed within a reasonable time to proceed with the application. The Tribunal has afforded more than a reasonable opportunity to the Applicant to avoid the “last resort” (see [125] of the 11 May 2018 reasons for direction at [4] above) of the application being dismissed. It is now clear that the hope of the Tribunal in May 2018 that the parties might be able to reach agreement on a means by which the Applicant could be examined by
Dr Floyd for the purpose of Dr Floyd preparing a report cannot be met. For the reasons set out in detail in the 11 May 2018 decision the Applicant is in breach of the direction to attend Dr Floyd for a medical examination and has also failed to proceed with the application. The Tribunal is now satisfied that the “last resort” of dismissing the application under s 42A(5)(a) and (b) of the AAT Act is the appropriate course.Given the Tribunal’s finding in relation to the Secretary’s application, there is no need for the Tribunal to consider the Applicant’s application for an indefinite stay of the proceedings. For completeness, however, the Tribunal notes that the only evidence put forward by the Applicant which could be considered to support an application for an indefinite stay, or even a stay for a limited period, the letter of Dr Nuttall dated
1 May 2019, was provided very late in the day, in fact after the hearing of the applications. Had the matters set out in that letter occurred at an earlier point in these proceedings,
the Tribunal would have been more sympathetic to granting a stay. However, the grounds giving rise to the dismissal of the application occurred back in 2017 and 2018 when the Applicant breached the Tribunal’s order made in September 2017 requiring her to attend to be examined by Dr Floyd. That remains the position and is the basis of the Secretary’s application and the Tribunal’s finding that the proceedings should be dismissed.DIRECTION
Pursuant to s 42A(5) of the AAT Act, the Applicant’s application for review of decision is dismissed.
I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
.......[sgd].................................................................
Associate
Dated: 28 August 2019
Date of hearing: 2 April 2019 Applicant: In person Representative for the Respondent: Mr A Burgess Solicitors for the Respondent: Sparke Helmore Division:GENERAL DIVISION
File Number: 2014/0108
Re:Applicant 0108 of 2014
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DIRECTION
Tribunal: Deputy President S Boyle
Date: 11 May 2018
Place: Perth
The Tribunal directs that:
1.on a date within the next five weeks to be fixed by the Tribunal, the parties confer in the presence of a Tribunal Conference Registrar to attempt to reach agreement on a process or protocols for the Applicant to be examined by the Respondent’s preferred occupational physician for the purpose of the Respondent’s preferred occupational physician preparing a report; and
2.if agreement on a process or protocols is reached, such agreement is to be reduced to writing and to be signed by the parties; and
3.the Respondent’s application for dismissal of the application pursuant to s 42A(5) of the Administrative Appeals TribunalAct 1975 (Cth) be adjourned to a date to be fixed pending the outcome of the conferral referred to in direction 1 and any examination of the Applicant following such conferral.
.......[sgd].................................................................
Deputy President S Boyle
CATCHWORDS
Disability Support Pension – substantive application for unlimited portability – application for dismissal for non-compliance with directions – cognitive impairment – whether dismissal is the proper remedy – dismissal of the application is only to be used as a last resort – dismissal application adjourned
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 42A(5), s 44
Disability Discrimination Act 1992 (Cth) – s 39Social Security Act 1991 (Cth) – s 1218AAA(1)
CASES
0108 of 2014 v Secretary, Department of Social Services [2017] FCA 57
Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2011) 213 FCR 345; [2011] FCA 299
Applicant 0108 of 2014 v Secretary, Department of Social Services [2016] FCA 421
Applicant 0108 v Secretary, Department of Social Services [2017] FCA 535
Berry v Commissioner of Taxation [2015] FCA 1244
Charara v Commissioner of Taxation [2016] FCA 451
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Guse v Comcare [1997] FCA 140; (1997) 49 ALD 288Re Applicant 0108 of 2014 and Secretary, Department of Social Services [2015] AATA 446
REASONS FOR DIRECTIONS
Deputy President S Boyle
11 May 2018
THE APPLICATION
This is an application by the Respondent (the Secretary) to dismiss the substantive application under s 42A(5)(a) and/or (b) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
The substantive application seeks review of the then Social Security Appeals Tribunal (SSAT) decision dated 28 November 2013 not to make a written declaration of “indefinite portability” of Disability Support Pension (DSP) under s 1218AAA(1) of the Social Security Act 1991 (Cth) (the SSA).
BACKGROUND
The Applicant was granted DSP on 13 September 2010 and remains in receipt of same to date.
On 29 October 2012 the Applicant completed a Medical Report: Disability Support Pension Review for portability.
On 19 February 2013 a Department of Human Services (DHS) original decisionmaker decided the Applicant did not have a severe impairment for the purposes of a s 1218AAA(1) of the SSA, in that she did not have 20 impairment points under a single Impairment Table.
The Applicant then sought a review of this decision. On 27 June 2013 a DHS authorised review officer (ARO) affirmed the original decision.
On 28 November 2013 the SSAT affirmed the decision under review.
On 9 January 2014 the Applicant made an application for review before this Tribunal.
On 22 June 2015 the Tribunal determined the Applicant did not satisfy the cumulative requirements in s 1218AAA(1) of the SSA for unlimited portability of her DSP. Specifically, the Tribunal did not consider there was sufficient evidence for it to be satisfied that the Applicant was unable to perform any work for two hours or more per week independently of a program of support, which is a requirement under subparagraph 1218AAA(1)(d) of the SSA.
On 7 July 2015 the Applicant filed an appeal of the Tribunal decision to the Federal Court under s 44 of the AAT Act (the first appeal).
Barker J handed down the Court's judgment on 22 April 2016 (Applicant 0108 of 2014 v Secretary, Department of Social Services [2016] FCA 421) and made the following orders:
1.The appeal be allowed in part.
2.The decision of the Administrative Appeals Tribunal made 22 June 2015 be set aside.
3.The matter, limited to the question whether, for the purposes of s 1218AAA(1)(d) of the Social Security Act 1991 (Cth), the applicant's severe impairment would prevent her from performing work independently of a program of support within the next five years, be remitted to the Administrative Appeals Tribunal for reconsideration according to law.
4.The applicant, and the Secretary, have leave to call further evidence relevant to the matter in issue.
The matter was remitted to the Tribunal on a limited question of whether s 1218AAA(1)(d) of the SSA had been satisfied.
On 14 June 2016, a directions hearing was held before Senior Member Walsh.
At the directions hearing on 14 June 2016, in order to address the limited question identified by Barker J, the Secretary made a request to the Tribunal that the Applicant be required to attend an appointment with an occupational physician for the purposes of assisting the Tribunal in determining the Applicant's work capacity as it relates to s 1218AAA(1)(d) of the SSA. The Secretary provided a number of suitable dates to the Tribunal on which an appropriately qualified occupational physician in Perth was able to see the Applicant. The Secretary claims that she did so in compliance with her duty to assist the Tribunal to come to the correct and preferable decision.
At the directions hearing the Applicant expressed objection to the Secretary's request. As a result of that objection, in the direction made on 14 June 2016, the Tribunal gave the Applicant leave to file submissions in relation to her objection to attend the medical examination by the respondent’s preferred Occupational Physician on the specified dates of 26 July 2016, 27 July 2016, 29 August 2016, 30 August 2016 or 31 August 2016.
On 28 June 2016 the Applicant filed her submissions.
On 29 June 2016 the Tribunal provided reasons for decision and directed that:
1.The Applicant to attend an appointment with the Respondent's preferred Occupational Physician on a date in 2016 to be agreed between the parties.
2.If, on or before 29 July 2016, the parties are unable to agree upon a date for the appointment referred to in Direction 1, the matter be listed for a directions hearing.
Senior Member Walsh stated in her written reasons that:
[19] The Tribunal considers that a report from the Secretary's preferred Occupational Physician, which addresses whether the Applicant's severe impairment would prevent her from performing work “in the open labour market” independently of a program of support within the next five years, is likely to assist it in satisfying its obligation to reach the correct and preferable decision in this case and the obtaining of such a report is appropriate in the circumstances of this case.
[20] Moreover, the provision of such a report by the Secretary is entirely consistent with the Secretary's statutory obligation, as the primary decisionmaker, in s 33(1AA) of the AAT Act to use “his or her best endeavour to assist the Tribunal to make its decision in relation to the proceeding”.
…
[22] An applicant who fails, within a reasonable time, to comply with a direction of the Tribunal, may have his or her application dismissed, without proceeding to review the decision: s 42A(5)(b) of the AAT Act.
The Applicant failed to nominate and agree to a date on which she would attend an appointment with the Secretary’s preferred occupational physician.
On 15 July 2016, Senior Member Walsh amended her earlier directions and directed that:
1.Direction 2, made on 29 June 2016, is hereby revoked.
2.On or before 29 July 2016, the Applicant is to agree on a suitable date in 2016 on which to attend an appointment with the Respondent's preferred Occupational Physician.
NOTE: A failure by the Applicant to comply with Direction 2 may result in the Tribunal dismissing this application without proceeding to review the decision: s 42A(5) of the Administrative Appeals Tribunal Act 1975.
(Original emphasis)
On 24 July 2016, the Applicant wrote to the Tribunal seeking to challenge direction 2 and requesting that Senior Member Walsh recuse herself.
On 25 July 2016 the Registrar of the Tribunal wrote to the Applicant to inform her that the Tribunal could not review the outcome of its directions hearing and that the Tribunal would endeavour to list the substantive hearing before a member not from the Perth Registry.
On 29 July 2016 the Applicant filed and served a notice of appeal in the Federal Court (the second appeal) seeking to appeal the Tribunal's direction of 15 July 2016, that on or before 29 July 2016, the Applicant was required to agree on a suitable date in 2016 on which to attend an appointment with the Secretary's preferred occupational physician.
Following a hearing on 19 December 2016, McKerracher J delivered the Court's judgment on 3 February 2017 in 0108 of 2014 v Secretary, Department of Social Services [2017] FCA 57. The Applicant's application was dismissed.
Relevantly for present purposes, the Court said in relation to the Tribunal's direction of 15 July 2016:
[49] His Honour’s [Barker J] orders specifically allowed both parties to call further evidence. The applicant's contention that a labour market analysis cannot be conducted by the occupational physician is without evidentiary or other foundation. It is well recognised that an occupational physician is a medical practitioner specialising in the capacity to provide opinions about the types of work that an applicant, such as this applicant, could potentially be able to carry out and, if so, how many hours per week she could carry out. In this case, the assessment would be directed to the period over the next five years, taking into account her impairments arising from her fully diagnosed, treated and stabilised condition.
…
[52] The applicant also submits that any further report would not be impartial. However, there is also no acceptable foundation for this assertion. Even if a report gave a result which was disappointing to her, that would not necessarily assume impartiality. There is a vague suggestion from the applicant that the respondent is 'fishing', but, in my view, it is clear that the respondent is discharging its obligation to assist the Tribunal by providing relevant and current material regarding the effect of the applicant's medical condition on her ability to do any work.
…
[61] While the applicant disagrees with this view, it represents the law and I intend to apply it. Even in mainstream litigation leave would be required before appealing an interlocutory decision and in a case like this would rarely be sought or granted. There is nothing in the slightest that is unconventional or inappropriate about the direction given by the Tribunal.
On 28 February 2017 a directions hearing was held before Senior Member Walsh. The Tribunal directed:
1.Direction 2, made by the Tribunal on 15 July 2016, is hereby revoked.
2.On or before 17 March 2017, the Applicant is to agree on a suitable date on which to attend an appointment with the Respondent's preferred Occupational Physician within the next 2 months from today's date (i.e. before 24 April 2017).
The Applicant failed to comply with the direction of 28 February 2017.
On 21 March 2017 the matter was listed for an “interlocutory hearing (dismissal application)” by telephone on 31 March 2017.
On 24 March 2017, the Applicant filed a proposed notice of appeal to the Full Federal Court from the judgment of McKerracher J dated 3 February 2017 and also an application for an extension of time in which to do so.
On 29 March 2017, an officer of the Tribunal informed the parties that the matter would be placed “on hold” pending the outcome of the new court proceeding.
On 11 May 2017, the Applicant's application for an extension of time was heard and dismissed by the Court. Relevantly for present purposes, Barker J in deciding to dismiss the Applicant's extension of time application said in his judgment (see Applicant 0108 v Secretary, Department of Social Services [2017] FCA 535):
[8] ...There is no doubt it was open to the Tribunal to request or require the applicant to undergo, at the request of the respondent, further medical assessment so that the parties and the Tribunal would have the opportunity of having a fair and proper hearing in respect of the question of the portability of her disability pension.
Following dismissal of the Applicant's extension of time to appeal, a directions hearing was held on 24 May 2017. Senior Member Walsh made the following directions:
1.Direction 2 made by the Tribunal on 28 February 2017 is hereby revoked.
2.On or before 21 June 2017, the Applicant is to agree on a suitable date on which to attend an appointment with the Respondent's preferred Occupational Physician within the months of July, August, September and October 2017.
The Applicant did not comply with direction 2 made on 24 May 2017.
On 22 June 2017 the matter was listed for a “directions hearing (applicant noncompliance)” on 29 June 2017.
The Applicant did not appear at the directions hearing on 29 June 2017, having informed the Tribunal that she was not feeling well.
The Secretary requested that the matter be dismissed under s 42A(5) of the AAT Act. Senior Member Walsh did not grant the application and listed the matter for a further directions hearing on 24 July 2017.
On 17 July 2017, the Applicant made submissions:
(a)asserting she was unable to comply with the Tribunal's direction due to sciatica;
(b)requesting that she be removed from a “non-compliance reporting scheme”;
(c)asserting that the Secretary had breached an order under s 35 of the AAT Act made by Deputy President Hotop on 17 January 2014; and
(d)requesting that a date be fixed for a “labour market analysis”.
On 24 July 2017, the directions hearing listed for that day was vacated by the Tribunal and relisted for 31 July 2017.
On 28 July 2017, the Tribunal vacated the listing for a directions hearing on 31 July 2017.
On 18 September 2017, the Tribunal listed the matter for a directions hearing on 27 September 2017.
At the directions hearing on 27 September 2017, the Secretary's application for dismissal under the AAT Act s 42A(5) was refreshed. The Tribunal did not grant the application. The Tribunal directed:
1.On or before 6 October 2017, the Respondent provide to the Applicant and the Tribunal a list of dates for an appointment with the Respondent's preferred Occupational Physician for the period from the second half of October to the end of November 2017.
2.On or before 13 October 2017, the Applicant is to agree on a suitable date to attend an appointment with the Respondent's preferred Occupational Physician.
The Applicant complied with direction 1 and on 13 October 2017 an appointment was fixed for the Applicant to be examined by Dr Floyd on 24 November 2017.
On 24 November 2017, the Applicant attended Dr Floyd's examination room.
I certify that the preceding 127 (one hundred and twenty-seven) paragraphs are a true copy of the reasons for the directions herein of Deputy President S Boyle
......[sgd]..................................................................
Associate
Dated: 11 May 2018
Date of hearing: 4 April 2018 Applicant: In person: self-represented Representative for the Respondent: Mr Ashley Burgess Solicitors for the Respondent: Sparke Helmore Lawyers
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