TRUDU and COMCARE

[2011] AATA 376

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 376

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1919, 3260, 3271,   

GENERAL ADMINISTRATIV DIVISION		)              4595
Re		ALFONSO TRUDU

Applicant

And COMCARE

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date1 June 2011

PlaceBrisbane

Direction

The Tribunal directs:

1. That the applicant lodge in the Tribunal by 29 July 2011 a report from his treating psychiatrist (or another consultant psychiatrist) dealing with the matters set out in paragraph 40 of the reasons below.

2. That the respondent’s application to dismiss the proceedings under s 42A(5)(a) of the Administrative Appeals Tribunal Act be adjourned for further hearing at a time suitable to the parties and Dr Curson.

.............Signed...................

Deputy President

CATCHWORDS

PRACTICE & PROCEDURE – application for dismissal pursuant to s 42A(5) – whether applicant has failed to proceed within a reasonable time – proceedings commenced in excess of three years ago – whether applicant medically fit to participate in proceedings - application for dismissal adjourned

REASONS FOR DECISION

1 June 2011 Deputy President P E Hack SC    

Introduction

1.This Tribunal is required by the Parliament

“to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”

In the compensation jurisdiction the Tribunal aims to have most matters resolved, either by hearing or by agreement, within 12 months of lodgement of an application for review.

2.These proceedings by Dr Alfonso Trudu were commenced in May 2008 in excess of three years ago. Dr Trudu says that the matters cannot yet be heard despite that length of time. He says that he is not well enough to participate in a hearing.

3.The respondent, Comcare, says that Dr Trudu has failed “…within a reasonable time…to proceed with the application” and that accordingly the discretion to dismiss his application under s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) has been enlivened. Comcare submits that it ought to be exercised and that Dr Trudu’s applications ought to be dismissed.

4.It is, I think, plain enough that Dr Trudu has failed, within a reasonable time, to proceed with his application. The history of the matter, detailed below, makes that clear; the harder question is whether the discretion ought to be exercised.

5.Dr Trudu was an employee of the Commonwealth Scientific and Industrial Research Organisation (CSIRO). During 2006 and early 2007, putting the matter as neutrally as may be, Dr Trudu experienced difficulties with his supervisors. In March 2007 Dr Trudu saw his general practitioner who diagnosed “work related stress”. Dr Trudu was certified as unfit for work from 12 March 2007.

6.On 1 May 2007 Dr Trudu lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act (Cth) (the SRC Act) for a condition he described as “work related stress” which he attributed to “conflict with my superiors at work…lack of recognition of my value in the workplace”. On 19 September 2007 Comcare determined that it was not liable under s 14 of the SRC Act to pay compensation for work related stress because Dr Trudu’s condition arose as a result of a failure to obtain a promotion or benefit. The SRC Act, at the time, excluded from the definition of injury, a disease or injury “…suffered by an employee as a result of…failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”

7.On 31 January 2008 Dr Trudu requested reconsideration of this decision. It was affirmed on 7 March 2008 on the wider grounds that Dr Trudu’s ailment arose as a result of a failure to obtain a promotion and as a result of reasonable disciplinary action.

8.That decision is the subject matter of application 2008/1919, lodged in the Tribunal on 2 May 2008.

9.In the meantime Dr Trudu had made further claims for compensation.

10.On 1 October 2007 he lodged a claim for “excess anxiety, insomnia.” Liability to pay compensation for that condition was rejected on 11 February 2008 on the basis that it arose as a result of “reasonable administrative action taken in a reasonable manner”. If that were to be the case, the resulting condition was excluded from the definition of injury in the SRC Act following amendments made to the Act in 2007. Dr Trudu sought reconsideration on 4 April 2008. The determination was affirmed on 22 May 2008.

11.That decision is the subject matter of application 2008/3260 lodged on 16 July 2008.

12.On 6 November 2007 Dr Trudu lodged a third claim – for “anxiety, insomnia, stress, anger, all psychological injuries, re-injury from previous Comcare cases”. That claim was rejected by Comcare on 15 March 2008 on the basis that the condition arose as a result of reasonable administrative action taken in a reasonable manner. Dr Trudu sought reconsideration of the decision on 16 May 2008. It was affirmed on reconsideration on 23 June 2008.

13.That decision is the subject matter of application 2008/3271 lodged in the Tribunal on 16 July 2008.

14.Dr Trudu’s final claim, for “re-occurrence of adjustment disorder caused by stress in the workplace”, was made on 7 March 2008. It was denied on 19 May 2008 on the grounds that the condition arose as a result of reasonable administrative action taken in a reasonable manner. It was affirmed, on the same basis, on 5 August 2008.

15.That decision is the subject matter of application 2008/4595 lodged on 1 October 2008.

16.All four applications raise essentially the same issues. No distinction has been drawn between any of them in the course of interlocutory proceedings or the arguments on this application. In November 2008 Dr Trudu lodged a detailed statement setting out his evidence. Comcare lodged several witness statements thereafter in January 2009. On 29 January 2009 the parties were requested to complete and return hearing certificates. Each of Dr Trudu and Comcare indicated that the matter was ready for hearing and provided an estimate of the length of the hearing. In March 2009 the parties were notified that the matter had been listed for hearing for three days commencing on 24 June 2009. The hearing dates had to be vacated in early June 2009 when one of the members scheduled to constitute the Tribunal for the hearing became unavailable unexpectedly.

17.The parties completed fresh hearing certificates in June 2009, again confirming that the matter was ready for hearing.

18.On 28 June 2009 Dr Trudu wrote to the Tribunal requesting that all action on his matters be suspended pending a determination by the Ombudsman of complaints made by Dr Trudu against the Tribunal, Comcare and CSIRO. That request was declined at a directions hearing the following day.

19.Dr Trudu wrote a similar letter to the Tribunal on 19 August 2009 applying for his “…cases to be suspended until February 2010”. That notion was opposed by Comcare which, by letter of 26 August 2009 (copied to the Tribunal) drew Dr Trudu’s attention to the possibility that Comcare might apply for the proceedings to be dismissed under s 42A(5)(a) of the Administrative Appeals Tribunal Act.

20.On 14 September 2009 Dr Trudu provided to the Tribunal a letter from his treating psychiatrist, Dr Catherine Curson. Dr Curson said:

“[Dr Trudu] has symptoms of anxiety and fluctuating symptoms of depression and irritability. As a result, he has reduced concentration and poor resilience to stress. Due to these symptoms he has difficulty preparing documentation. These symptoms also compromise his ability to appear at proceedings and in my opinion he is not yet fit to engage in any formal Court Proceedings”.

21.Further attempts were made in December 2009 to resolve the matter by use of the Tribunal’s alternative dispute resolution processes. Following one of those conferences Dr Trudu provided a further letter from Dr Curson indicating that he was “…not fit to participate in formal hearings”.

22.A further letter was received from Dr Curson dated 9 February 2010. Dr Curson suggested that future contact by the Tribunal with Dr Trudu be by letter and that Dr Curson would screen the correspondence. The District Registrar responded to Dr Curson on 12 February 2010 pointing out the Tribunal’s obligation to provide prompt review of applications. The letter suggested that if Dr Curson was of the view that Dr Trudu was unable to pursue the application she might consider referring the matter to the Adult Guardian. Seemingly that was not done.

23.Dr Curson provided a further letter dated 29 April 2010 explaining that Dr Trudu,

“…remains unwell as a result of an adjustment disorder. He is not fit to participate in hearings and matters related to them.”

24.The matter came before me for directions on 30 April 2010. On that occasion the matter was set down for hearing for five days commencing on 6 September 2010. Five days were allowed to accommodate Dr Trudu having frequent breaks if he required.

25.On 2 September 2010 the Tribunal received a letter from Dr Curson. She said,

“[Dr Trudu] struggles with impaired concentration and has poor resilience to stress. It is my opinion that he remains too unwell to appear at the forthcoming Tribunal Hearing.”

26.Then on 6 September 2010 Dr Trudu made a complaint to the Ombudsman about the Tribunal (and foreshadowed a complaint to the Human Rights and Equal Opportunity Commissioner) and applied for the hearing of the four applications to be “suspended and rescheduled” after the complaints had been dealt with.

27.On 7 September 2010, at the outset of the hearing, the proceedings were adjourned at Dr Trudu’s request, in light of the certificate from Dr Curson. It was suggested to Dr Trudu that if there was no reasonable prospect in the future of him getting better he ought to arrange for someone to represent his interests.

28.In March 2011 the Tribunal wrote to Dr Trudu enquiring what the position was with his health. On 29 March 2011, no reply having been received from Dr Trudu, the matter was listed for directions on 15 April 2011. Shortly after that Dr Trudu wrote, enclosing a letter from Dr Curson of 29 March 2011. That letter noted that Dr Trudu had not made substantial progress since August 2010 and that, in Dr Curson’s opinion,

“Dr Trudu] remains too unwell to appear at a Tribunal Hearing.”

29.Then, on 7 April 2011, Comcare’s solicitors wrote to the Tribunal, applying for the proceedings to be dismissed pursuant to s 42A(5)(a) of the Administrative Appeals Tribunal Act. Written submissions in support of the application were enclosed and, of course, provided to Dr Trudu.

30.On 15 April 2011 Dr Trudu requested that the application for dismissal be adjourned to enable him to consider it and to consult Dr Curson. The matter was adjourned and directions made for Comcare to lodge and serve any further evidence on which it relied in support of its application by 29 April 2011, for Dr Trudu to lodge any evidence by 13 May 2011 and the matter be heard on 27 May 2011. Thereafter Comcare lodged a statement of Mr Warren Smith, the General Manager, Workplace Relations and Policy, in the CSIRO and an affidavit of a solicitor.

31.The latter established that all of Comcare’s witnesses had provided witness statements and remained available to give evidence. Mr Smith’s statement established that in September 2010 Dr Trudu had applied to Fair Work Australia seeking a remedy for the termination of his employment with CSIRO. In those proceedings, Dr Trudu has participated, by telephone, in a conciliation and filed an outline of submissions and a witness statement. The matter is now scheduled for hearing on 30 June 2011 and 1 July 2011. Mr Smith was cross-examined by Dr Trudu at the hearing on 27 May 2011. It will suffice to say that nothing in that cross-examination caused me to doubt the truth and accuracy of the evidence in Mr Smith’s statement. I accept that evidence.

32.Mr Trudu lodged a detailed and lengthy submission in response to Comcare’s application.

33.I am satisfied  that Dr Trudu has failed, within a reasonable time, to proceed with his applications.

34.Comcare submitted that the proceedings ought to be dismissed. Two matters, beyond the inordinate delay, were particularly relied on. First, it was said, that despite the opinion of Dr Curson, the fact of Dr Trudu having commenced and prosecuted his application in Fair Work Australia suggests that he is not so incapacitated as to be unable to proceed with these applications. And it was said that where the issues in the proceedings were solely concerned with dealings between Dr Trudu and others within CSIRO from 2006 onwards, it was unfair to Comcare and the witnesses from CSIRO that the matter continue to drag on. Finality was required, it was said.

Consideration

35.At the outset I acknowledge that it is an extreme step to terminate proceedings in this way. And to do so where it is said by Dr Trudu’s treating psychiatrist that he is not well enough to participate in the hearing makes it even more so. As against that there are some matters that I find concerning about Dr Trudu’s conduct of the proceedings.

36.First and foremost there is the very considerable delay in proceeding. It is obviously undesirable that there be long delays in bringing matters on for hearing in the Tribunal where one of its statutory objectives is the provision of a “quick” mechanism of review, a fortiori where the matters in issue concern, at least in part, conversations between Dr Trudu and his supervisors. Next, Dr Trudu has steadfastly refused to engage lawyers to conduct the proceedings for him because, he says, he does not trust lawyers. He is, of course, entitled to hold whatever views he wishes however those views cannot be allowed to prevent the Tribunal in discharging its statutory function or should they be permitted to work an injustice against another party to the proceedings. There appears to be no reason why Dr Trudu cannot have a friend or other support person to assist him in any hearing.

37.I am, as well, concerned that Dr Trudu rejected out of hand the notion that the Tribunal might obtain an opinion on his capacity to participate in the proceedings from an independent psychiatrist.

38.I am concerned that Dr Trudu appears capable of proceeding with other avenues of review or complaint e.g. to Fair Work Australia and the Ombudsman, yet is said to be unable to participate in a hearing. The length and detail of the written submissions produced by Dr Trudu in answer to Comcare’s application suggest that he possesses considerable skill and ability in presenting apparently rational argument.

39.I am concerned that, at present and on the view presented by Dr Curson, there is no end in sight. It is not conceivable that these proceedings can be allowed to remain unresolved. They must be brought to a conclusion either by a hearing or by acceding to Comcare’s application.

40.Finally, I am concerned that much of Dr Trudu’s conduct appears inconsistent with Dr Curson’s opinion, that the opinion is expressed in bald terms and that that opinion does not appear to demonstrate an appreciation of the procedures of the Tribunal. On the present state of the evidence I would be minded to accede to Comcare’s application however I consider that Dr Trudu ought to be given an opportunity to provide a further report from Dr Curson (or another psychiatrist). That report ought detail, at least,

·the effect of Dr Trudu’s ailment on his everyday functioning and his capacity to participate in a hearing,

·the prognosis and, in particular, whether there is any likelihood of Dr Trudu being able to participate in a hearing in the foreseeable future,

·whether any particular procedures ought be adopted to permit Dr Trudu to participate in a hearing

·Dr Trudu’s pursuit of other proceedings.

41.I propose to allow Dr Trudu a period of time to obtain such a report and provide it to the Tribunal. I would anticipate a further short hearing once the report is available. The hearing will be listed at a time when Dr Curson is available to give evidence (by telephone if necessary).

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         .........Signed..............................................................
  Associate

Date of Hearing  27 May 2011
Date of Decision  1 June 2011
The Applicant was self-represented          
Solicitors for the Respondent    Sparke Helmore