Van Der Zwart and Australian Capital Territory (Compensation)

Van Der Zwart and Australian Capital Territory (Compensation) [2021] AATA 3291 (14 September 2021)
Division:GENERAL DIVISION
File Number(s): 2020/0253
Re:Michael Van Der Zwart
APPLICANT

Australian Capital TerritoryAnd
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:14 September 2021
Place:Canberra

Mr Van Der Zwart’s request for a stay is refused.
……………..[sgd]……………
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – application for review of no present liability compensation decision – application for operation of the decision to be stayed – discretion for the purposes of securing the effectiveness of the hearing - relevant principles and considerations – assertions of prejudice without probative material – stay refused
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 41
Safety, Rehabilitation and Compensation Act 1988 ss 16, 19, 69, 114
Cases
Sahai and Australian Securities and Investments Commission [2021] AATA 590
Scott and Australian Securities and Investments Commission [2009] AATA 798
REASONS FOR DECISION
Mr S. Webb, Member
13 September 2021

Michael Van Der Zwart claimed and was paid compensation for a work injury to his lower back. After some years, Employers Mutual Limited, the compensation claims manager for the Australian Capital Territory (ACT), decided that, at the time, Mr Van Der Zwart was not entitled to payments of compensation for medical treatment expenses and for incapacity to work. This decision was affirmed on reconsideration. Unhappy about this, Mr Van Der Zwart applied for review by the Tribunal.
In the course of the resulting proceedings, Mr Van Der Zwart applied for a stay on the operation of the reconsideration decision. The ACT opposes this application.
The parties have made written submissions addressing relevant facts and legal principles. Both agreed that the application may be decided on the papers, without a hearing.
This decision and the following reasons address Mr Van Der Zwart’s application for grant of a stay.
Facts
In May 2005, Mr Van Der Zwart was employed by the University of Canberra (University) as a gardener.
In 2009, he sustained a right shoulder injury and claimed compensation. Comcare accepted liability for this injury and paid Mr Van Der Zwart compensation. He engaged in a rehabilitation program and returned to work. Nevertheless, Mr Van Der Zwart maintains that he continues to experience symptoms of this injury.[1]
[1] Applicant’s Statement of Facts, Issues and Contentions, 16 August 2021, at [4].
In February 2013, Mr Van Der Zwart was engaged in renovating a garden at the University. He also engaged in gym exercises relating to his right shoulder injury.
On 7 March 2013, Mr Van Der Zwart lodged a compensation claim in respect of lumbar sprain (bilateral) that he alleges occurred at work on 26 February 2013.[2]
[2] Section 37 T-Documents filed 13 February 2020, T3, pages 5-20.
There is a factual controversy about the details of this claim, particularly in respect of the detailed circumstances and mechanism of the alleged injury.
Nevertheless, on 22 July 2013, Comcare (then responsible for managing such claims in the ACT) determined to accept liability for the injury under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).[3] Even though this determination was made in respect of medical treatment expenses under s 16 of the SRC Act, there is no dispute that the ACT’s liability was enlivened under s 14 of that Act.
[3] Section 37 T-Documents filed 13 February 2020, T6, pages 23-24.
Mr Van Der Zwart’s employment at the University came to an end. He was redeployed and obtained employment at the National Botanic Gardens for a time. Subsequently from 2015, he was employed by The Sustainable Gardener.
In this employment, Mr Van Der Zwart experienced partial incapacity for work. He worked 3 days each week. He increased his hours and, in 2017, Mr Van Der Zwart worked 7.5 hours per day, 4 days per week. In December 2017, this reduced to 3 days per week.
There are medical documents in the materials before the Tribunal that confirm Mr Van Der Zwart continued to experience symptoms relating to his lower back. For present purposes, it is not necessary to set out or to consider such materials in detail. Without addressing issues of causation and liability which are in dispute between the parties, it can be accepted that Mr Van Der Zwart’s low back condition continued to cause partial incapacity for work and that he continued to obtain treatment for this condition.
On 23 August 2019, the ACT decided that Mr Van Der Zwart was not entitled to payment of compensation for medical treatment expenses and incapacity for work at that time.[4]
[4] Section 37 T-Documents filed 13 February 2020, T49, pages 198-201.
Mr Van Der Zwart requested reconsideration of this decision.[5]
[5] Section 37 T-Documents filed 13 February 2020, T50, pages 202-203.
On 4 November 2019, Mr Van Der Zwart gave the ACT a statement.[6] In this statement, among other things, Mr Van Der Zwart refers to low back symptoms and medical treatments. He states that he relies on rehabilitation techniques to manage his pain symptoms and he only takes strong medications when the symptoms are excruciating.
[6] Section 37 T-Documents filed 13 February 2020, T50.1, pages 204-214.
On 21 November 2019, the ACT decided to affirm its primary determination of 23 August 2019.[7]
[7] Section 37 T-Documents filed 13 February 2020, T51, pages 215-219.
On 14 January 2020, Mr Van Der Zwart applied to the Tribunal for review of this decision.
On 30 July 2021, Mr Van Der Zwart applied for a stay order in respect of the ACT’s reconsideration decision of 21 November 2019.
On 29 July 2021, Mr Van Der Zwart provided an affidavit and written submissions in support of the stay application.
On 20 August 2021, the ACT provided written submissions in reply.
Issues
The issue is to be decided under s 41 of the Administrative Appeals Tribunal Act 1975 (AAT Act) –
(1)Subject to this section, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.
(2)The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
Note: This section does not apply in relation to proceedings in the Social Services and Child Support Division, as a result of provisions in the enactments that authorise applications for reviews that will be heard in that Division.
(3)(3) Where an order is in force under subsection (2) (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on request being made by a party to the relevant proceeding, make an order varying or revoking the first‑mentioned order.
(4)(4) Subject to subsection (5), the Tribunal shall not:
(a) make an order under subsection (2) unless the person who made the decision to which the relevant proceeding relates has been given a reasonable opportunity to make a submission to the Tribunal, as the case may be, in relation to the matter; or
(b) make an order varying or revoking an order in force under subsection (2) (including an order that has previously been varied on one or more occasions under subsection (3)) unless:
i.(i) the person who made the decision to which the relevant proceeding relates;
ii.the person who requested the making of the order under subsection (2); and
iii.if the order under subsection (2) has previously been varied by an order or orders under subsection (3)—the person or persons who requested the making of the last‑mentioned order or orders;
have been given a reasonable opportunity to make submissions to the Tribunal, as the case may be, in relation to the matter.
(5)Subsection (4) does not prohibit the Tribunal from making an order without giving to a person referred to in that subsection a reasonable opportunity to make a submission to the Tribunal in relation to a matter if the Tribunal is satisfied that, by reason of the urgency of the case or otherwise, it is not practicable to give that person such an opportunity but, where an order is so made without giving such an opportunity to the person who made the decision to which the relevant proceeding relates, the order does not come into operation until a notice setting out the terms of the order is given to that person.
(6)An order in force under subsection (2) (including an order that has previously been varied on one or more occasions under subsection (3)):
(a) is subject to such conditions as are specified in the order; and
(b) has effect until:
i.where a period for the operation of the order is specified in the order—the expiration of that period or, if the application for review is decided by the Tribunal before the expiration of that period, the decision of the Tribunal on the application for review comes into operation; or
ii.if no period is so specified—the decision of the Tribunal on the application for review comes into operation.
As can be seen, s 41(2) confers discretion on the Tribunal to make orders staying or affecting implementation of the decision under review. Importantly, the discretion is subject to conditions –
(a)firstly, the discretion is enlivened by:
(i)a request being made by a party to the proceeding for orders staying or otherwise affecting implementation of the decision under review; and
(ii)where the orders sought are for the purposes of securing the effectiveness of the hearing and determination of the application for review.
(b)secondly, once enlivened, exercise of the discretion is conditioned by the Tribunal:
(i)taking into account the interests of any persons who may be affected by the decision; and
(ii)forming the opinion that it is desirable to make such orders it considers to be appropriate for the statutory purposes of securing the effectiveness of the hearing and determination of the application for review.
The framework for considering such matters has been discussed in many previous cases, some of which the parties have referred to in submissions. A helpful summary is set out in Sahai and Australian Securities and Investments Commission,[8] citing Scott and Australian Securities and Investments Commission[9] in which Downes J discussed relevant matters that may be considered when deciding if it is appropriate to grant a stay, at [4]-[5].
[8] [2021] AATA 590 at [7]-[10].
[9] [2009] AATA 798.
Relevant considerations in these proceedings include:
(a)Mr Van Der Zwart’s prospects of success;
(b)the consequence for Mr Van Der Zwart should a stay not be granted;
(c)any public interest;
(d)the consequences for the ACT in carrying out its functions depending upon whether a stay is granted or not;
(e)any difficulty that may arise for either party in the recovery of monies paid should a stay be granted;
(f)whether the application for review would be rendered nugatory if a stay were not granted;
(g)the length of time that the decision under review has already been in place; and
(h)The time required to prepare and list the hearing of the application.
Consideration
On the question of the relative merit of Mr Van Der Zwart’s case, on a preliminary assessment of the available materials his case has some prospect of success. This does not weigh for or against the grant of a stay.
Mr Van Der Zwart’s application for a stay is pressed on the basis that “the degree of financial hardship is so high that without a Stay Order, the substantive hearing will be rendered ineffective as the Applicant will be prejudiced in his ability to properly prepare for and prosecute his claim against the Respondent”.[10]
[10] Applicant’s Submissions, 24 July 2021 at [5].
As will appear, this proposition is not made out. There is no evidence that Mr Van Der Zwart’s application will be rendered nugatory if a stay is not granted.
In support of the proposition, Mr Van Der Zwart provided an affidavit in which, among other things, he sets out his personal and financial circumstances. On this material, it appears Mr Van Der Zwart’s fortnightly income is $1,200 and his fortnightly expenses amount to $1,100.[11] He states that he has $8,000 in savings but he has relied on savings to fund everyday expenses. on the medical materials available to the Tribunal, the extent to which, if at all, VDZ’s debilitating symptoms will be affected, one way or the other, by the grant or refusal of a stay remains opaque. Mr Van Der Zwart states that he receives Jobseeker payments and he is employed for 15 hours per week, although his hours fluctuate, depending on his capacity for work and the needs of the business. When his symptoms flare-up, he is unable to work and meet his Jobseeker obligations, whereupon he has no income and is forced to rely upon on his savings.[12] He has struggled financially since compensation payments ceased on 23 August 2019.[13]
[11] Ibid, at [9] and [11].
[12] Ibid, at [8] and [12].
[13] Ibid, at [2].
Mr Van Der Zwart states that he has a number of health problems and conditions, and his mental health is affected by the difficult circumstances he experiences – “Continuously being confronted with financial distress feeds into depression and anxiety around my circumstance making everything more difficult”.[14]
[14] Ibid, at [17].
In his submissions, Mr Van Der Zwart asserts that he is:
(a)unable to afford proper food or sustenance for himself;
(b)unable to afford medical treatment for his conditions;
(c)unable to follow medical restrictions with respect to work capacity;
(d)prejudiced in his ability to seek expert medical evidence in support of his proceedings or engage counsel;
(e)prejudiced in his ability to prepare material for his legal representatives for the purposes of evidence due to the financial hardship he is experiencing, leading to travel and communication restrictions.[15]
[15] Applicant’s Submissions, 24 July 2021 at [17]-[21].
The facts underlying these assertions are not established by probative supporting materials. Mr Van Der Zwart’s affidavit sets out facts that are not consistent with the assertions made on his behalf. On my assessment of his affidavit, he is able to afford food and sustenance, and medical treatment for his conditions, albeit perhaps with some difficulty. Mr Van Der Zwart has fortnightly income in excess of his fortnightly expenses, and he has savings on which he draws in times of need.
That said, it can be accepted that Mr Van Der Zwart’s financial situation is straitened and it is rendered more difficult by the uncertainty he refers to in respect of his capacity for work and his ability to earn. Well it may be that Mr Van Der Zwart has a financial interest in obtaining a stay on implementation of the decision under review, but for his financial interest to be relevant it must be related to the effectiveness of the hearing and determination of his application. Alleviating financial difficulty is not a valid basis on which to consider granting a stay.
Mr Van Der Zwart contends that “not only his financial interests are prejudiced by a refusal to grant a stay order, but further also his ability to properly prosecute his claim against the respondent effectively”.[16] Furthermore, he asserts that it will be difficult for the Tribunal to accurately determine his claim in the circumstances:
Due to the Applicant’s inability to properly give instructions, receive advice, prepare for conferences and hearings with the AAT, and attend independent medical examinations, he is unable to properly commission and produce further evidence required to prosecute his claim, especially if the Respondent produces further medical evidence in these circumstances.[17]
[16] Ibid, at [27].
[17] Ibid, at [31].
These contentions are not supported by evidence. While there are numerous medical[18] and medico-legal reports[19] in the materials before the Tribunal, these do not support the proposition that Mr Van Der Zwart is unable to provide instructions to, or to receive advice from his legal representatives. I note that the Applicant’s extensive and detailed Statement of Facts, Issues and Contentions has been prepared by counsel, Mr Allan Anforth, presumably on instructions from Mr Van Der Zwart. On this document, among others, including the application for grant of a stay and related submissions, it appears that Mr Van Der Zwart is able to instruct his legal representative and, moreover, his case is well advanced in preparation for hearing.
[18] See, for example, T35, T44, T47, T53 and T54.
[19] See, for example, reports of Dr G. Khurana dated 5 February 2021 and Dr J. Beer dated 24 March 2020 and 7 April 2021.
Furthermore, the existence of medico-legal reports that were produced following examination of Mr Van Der Zwart is not consistent with the proposition that he is unable to attend independent medical examinations. Clearly, he has done so. The medical materials given to the Tribunal do not set out reasonable grounds on which to find that Mr Van Der Zwart is not presently able to attend medical examinations for the purposes of these proceedings. This is not to suggest that Mr Van Der Zwart’s health do not adversely affect his capabilities to undertake various activities. It can be accepted that Mr Van Der Zwart experiences debilitating symptoms and health conditions that affect his physical and mental faculties, but it is not clear to me that his experiences place at risk the effectiveness of the hearing and the determination of his application for review.
Mr Van Der Zwart asserts that his mental health is affected by financial difficulty to the extent that this places at risk the effectiveness of the hearing in these proceedings, and that this would remit should a stay be granted. This assertion is not supported by probative or supporting materials. On the medical materials available to the Tribunal, the extent to which, if at all, Mr Van Der Zwart’s debilitating symptoms will be affected, one way or the other, by the grant or refusal of a stay remains opaque. One can accept that financial difficulty might prey upon Mr Van Der Zwart’s mental health, but the extent to which this places at risk the hearing of his application is not established. Mr Van Der Zwart is legally represented and the proceedings are well advanced in preparation for hearing. His affidavit establishes that he is able to obtain medical treatment for his mental health and other medical conditions, including medications for pain and anxiety and monitoring of a cardiac problem by Mr Van Der Zwart’s general practitioner and a cardiologist. Nonetheless, in his straitened financial circumstances, it can be accepted that Mr Van Der Zwart may experience financial stress or difficulty meeting these costs. It does not follow and it cannot be assumed that such stress or difficulty places the effectiveness of the hearing and determination of his application for review at risk.
The proposition that Mr Van Der Zwart is prejudiced by an inability to obtain expert medical evidence and to engage counsel must be weighed against his submission that his legal representatives have funded all medical evidence and counsel fees to date. There is no evidence of the costs agreement between Mr Van Der Zwart and his legal representatives, and no evidence that this agreement has come to an end or that it will not continue. There is no evidence from Mr Anforth or from Mr Van Der Zwart’s solicitor, Ms Hrobelko of Lander and Co, addressing these or related matters.

The interests of the ACT are not given detailed expression in the submissions provided to the Tribunal. Nonetheless, it can be accepted that these include the fair, just and efficient administration of compensation claims and, having regard to s 69(a) of the SRC Act, determining such claims accurately and quickly in respect of work injuries for which the ACT is liable. Within this frame, the proper expenditure of public money and the recovery of monies paid to a person in excess of entitlement, under s 114 or s 114B of the SRC Act for example, are factors that colour the ACT’s interests in this case. If a stay is granted and compensation payments to Mr Van Der Zwart resume for the duration of the proceedings, should Mr Van Der Zwart’s case not succeed, the amounts paid to him may become recoverable debts under s 114 of the SRC Act. Difficulties may arise for the ACT in recovering such a debt from Mr Van Der Zwart and for Mr Van Der Zwart repaying it in the straitened financial circumstances he has described.
The balance of interests weighs against the grant of a stay.
The public interest in a case of this kind is in the Tribunal making the correct or preferable decision in a manner that accords with the objectives set out in s 2A of the AAT Act. The public interest, and the interests of the parties, are best served by bringing the application to a hearing as soon as possible.
The decision under review has been in effect since 23 August 2019.
On 16 June 2021, the Tribunal made directions setting a timetable. Those directions require the ACT to provide a Statement of Facts, Issues and Contentions (in response to the Applicant’s Statement of Facts, Issues and Contentions) by 8 October 2021, and for hearing certificates to be lodged by 15 October 2021.
Whether this timetable can be foreshortened may be a matter for consideration, but the parties have not been heard on this point. On this point there will be liberty to apply.
On balance, Mr Van Der Zwart’s request for the grant of a stay is not made out. It is not established that the grant of such a stay is necessary or desirable for the purposes of securing the effectiveness of the hearing and determination of his application for review. In these circumstances, it is not appropriate to exercise the Tribunal’s discretion under s 41(2) of the AAT Act.
Decision
Mr Van Der Zwart’s request for a stay is refused.
I certify that the preceding 45 (forty-five)
paragraphs are a true copy of the reasons
for the decision herein of Member S Webb.
....................................[sgd]....................................
Associate
Dated: 14 September 2021
Date final submissions received:   23 August 2021
Counsel for Applicant:  Mr Alan Anforth
Solicitor for Applicant:  Ms Katie Hrobelko, Lander & Co
Solicitor for Respondent:   Ms Emily Baggett, Moray & Agnew

[2021] AATA 3291

14 September 2021

Key Legal Topics

Areas of Law

Administrative Law

Negligence & Tort

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Remedies

Standing

Stay of Proceedings