"VZU" and Comcare - [2001] AATA 745

DECISION AND REASONS FOR DECISION [2001] AATA 745

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/329

GENERAL ADMINISTRATIVE DIVISION       )          V99/330      V00/68
           Re      VZU
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member

Date23 August 2001
PlaceMelbourne

Decision      On behalf of the Tribunal I dismiss these applications without proceeding to review the decisions.
  (Sgd) Joan Dwyer
  Senior Member

COMPENSATION – application to dismiss application on ground that applicant failed within a reasonable time (a) to proceed with application
(b) to comply with a direction by the Tribunal in relation to the application
- application dismissed
Administrative Appeals Tribunal Act 1975 s 42(A)(5)

REASONS FOR DECISION

23 August 2001 Mrs Joan Dwyer, Senior Member

This is an application under s 42(A)(5) of the Administrative Appeals Tribunal Act 1975 ("the Act") That provision reads as follows:
(5)       If an applicant for a review of a decision fails within a reasonable time:
(a)       to proceed with the application; or
(b)       to comply with a direction by the Tribunal in relation to the application;
a presidential member or senior member, on behalf of the Tribunal, may dismiss the application without proceeding to review the decision.
In order to understand the grounds of the application, it is appropriate to set out a summary of the history of this matter
Mr VZU lodged two applications for review by this Tribunal on 25 March 1999. In the leading application he sought review of a reviewable decision of Comcare made 29 January 1999. That decision was as follows:
1.The decision made in this matter on 08/04/98, namely, denying liability in respect of "cervical and lumbar disease, right sided arm and wrist pain, left sided arm co-ordination and spatial dysfunction, bilateral knee and feet pain and right hip pain" for which he first sought medical treatment on 18/01/94, is VARIED by replacing it with:-
Comcare is:-
(a)liable to pay compensation in respect of "temporary aggravation of the symptoms of soft tissue strain involving the right upper limb and cervical spinal C5-6 disc narrowing with associated neck pain and reduced mobility together with left sided spatial dysfunction and left sided co-ordination dysfunction particularly involving the left upper arm" deemed to have been sustained on 18/01/94, ie., the first date of medical treatment;
(b)not liable to pay compensation on and from 31/12/96 in respect of "temporary aggravation of the symptoms of soft tissue strain involving the right upper limb and cervical spinal C5-6 disc narrowing with associated neck pain and reduced mobility together with left sided spatial dysfunction and left sided co-ordination dysfunction particularly involving the left upper arm" deemed to have been sustained on 18/01/94.
2.The decision made in this matter on 12/05/98, namely, denying liability in respect of "chronic anxiety – stress condition" deemed to have been sustained on 30/08/94, is AFFIRMED.
On 21 January 2000 Mr VZU lodged a third application for review. In that application he sought review of a reviewable decision which had affirmed a primary determination rejecting a claim for compensation for aggravation of pain symptomatology on return to modified duties at work.
The matter came on for hearing on 15 February 2001. Mr VZU was unrepresented. Mr C. Miles of Counsel appeared for the respondent. Mr VZU gave evidence for the whole day. There were difficulties about Mr VZU's evidence . One of the difficulties was that Mr VZU kept on referring to material which he claimed supported his evidence, but he had not brought that material to the hearing with him (see the transcript p59).
During his evidence Mr VZU also said (trans. p61) , that he had lodged a further claim for compensation. When the Tribunal queried that with him, he explained that the further claim was to bring forward the period for which he was claiming compensation beyond the time when he had resigned from Centrelink.
At the conclusion of the first day of hearing it was apparent that a period of approximately three days would be required to complete the hearing. Mr VZU sought to have the Tribunal resume for three separate days, rather than three consecutive days. He claimed that would interfere less with his new employment. After some discussion, the Tribunal decided that it would have the matter listed for two consecutive days , and that it would make directions to ensure that Mr VZU lodged with the Tribunal and sent to the respondent copies of any documents on which he intended to rely. The Tribunal directed that he do so within 21 days of Mr VZU receiving further T documents relating to the application he had lodged in January 2001, matter V2000/68.
The Tribunal directed on 15 February 2001:
1.This matter came on for hearing today. During the hearing it became apparent that more sitting days would be required.
2.The Tribunal directs:
(a)that the respondent lodge with the Tribunal and send to the applicant:
(i)further T documents in respect of matter V2000/68; and
(ii)the applicant's sick leave records.
(b)that the applicant lodge with the Tribunal and send to the respondent copies of any documents on which he intends to rely within 21 days of receiving T documents in matter V2000/68.
(c)that the matter be listed for further hearing.
On 8 March 2001 the parties were advised that the matter had been further listed for 7and 8 May 2001. On 6 April 2001 the Tribunal received a copy of a letter which the respondent's solicitor had sent to Mr VZU. It pointed out that the further T documents had been sent to Mr VZU with a letter of 9 March 2001, and that he had not complied with the direction to provide his documents. In fact, the letter from the respondent's solicitors contained an error, in that the direction required compliance within 21 days of receipt of the T of documents and not 14 days, as set out in the letter. However Mr VZU did not comply with the Tribunal's direction within 21 days, or even within any longer period.
On 4 May 2001 Mr VZU faxed to the Tribunal a letter in which he applied for an adjournment. The first ground was that he was having an M. R. I. Scan done that day, and the second that he was lodging a further application for compensation to cover periods not covered by his previous applications. He wrote "I believe all applications should be considered together and that I should have the opportunity to present supporting documentation."
On 7 May 2001 Mr VZU faxed another letter to the Tribunal. He wrote:
I wish to request that I be allowed to not appear in person but to allow me to conduct my hearing by telephone.
My reasons for this request are as follows;
1)Being seated all day, other than the occasional break and lunch time, exacerbates my symptoms of pain and discomfort. Now [sic] only am I disadvantaged by not having legal counsel but am conducting my own case whilst experiencing increasing pain and discomfort.
2)I am disadvantaged by having to carry and handling the voluminous amount of material I wish to have at my disposal throughout this case.
3)Due to the amount of voluminous material, I wish to have it spread out in such a fashion that I can access it in a timely fashion, rather than waste extraordinary amounts of time of the Tribunal.
I believe to have me sit day in and day out throughout this hearing flies in the face of natural justice.
The Associate to Senior Member Dwyer telephoned Mr VZU in response to his fax. Her note reads as follows:
Senior Member Dwyer instructed that I ring him and tell him that the request for a telephone hearing had not been approved.
He inquired what the consequences would be if the request for an adjournment was turned down by the Tribunal.   I told him that there was a possibility that his matter could be dismissed by the Tribunal if he did not attend and be prepared to proceed with his case should the adjournment request fail.
He said he was not prepared to proceed with the case as he was in a lot of pain and was unable to carry the material he needed to present his case.    He viewed the whole matter as a denial of natural justice.
I again spoke to Senior Member Dwyer who said to tell him to get a taxi and that we would meet him downstairs with a trolley in order to assist him with his material.   VZU was of the opinion that the Tribunal could not tell him what mode of transport he should take to the hearing and said that he was a low-income earner and would be taking his usual mode of transport which is the train and would not be bringing his material as he was in a lot of back pain and unable to carry it. He informed that he probably would not be able to get to the AAT until about 10.30 - 11.00.
He said that he felt that he was being denied natural justice and fairness given the amount of back pain he was in and the fact that he needed time as he was also conducting his own matter and had no legal representation.
When the hearing resumed on 7 May 2001, Mr VZU was not present. The solicitor and Counsel for the respondent were present. The Presiding Member said (trans. p86):
Well, I thought for the record and for the transcript we should note that we have come down at 20 past 10, that you are here but Mr VZU, as we are calling him in this matter, is not yet here and that I have arranged for you to be given copies of his faxes to the Tribunal of 4 May and 7 May and the note taken by my associate, Ms O'Rourke, this morning. As you see we suggested that he take a taxi and that he be met with a trolley downstairs and he has not agreed to do either of those things. I think the only thing we can do at this stage is stand the matter down. We will see if he arrives at his estimated time of 10.30 or 11.00. If he has not arrived by, say, lunchtime, then we will consider what steps we should take in that circumstances.
At six minutes past eleven the hearing resumed with Mr VZU present in the hearing room. He resumed his application to be able to conduct the hearing by telephone. The Tribunal refused the application. The Tribunal explained that Mr VZU may stand, sit or walk provided he remained within range of the microphone which was recording the proceedings.
As at 7 May 2001, Mr VZU had not complied with the Tribunal's direction of 15 February 2001, which required him to lodge any documents on which he intended to rely, and to send a copy of those documents to the respondent's solicitor. The Tribunal therefore ruled that Mr VZU's evidence-in-chief was the evidence that it had heard on 15 February 2001. It invited Mr Miles to commence cross-examination.
Mr VZU then applied for an adjournment. He stated that he had lodged a fourth application for review and that he wished to have all four review applications heard together. Mr Miles opposed the application to adjourn. He pointed out that the applications already before the Tribunal "pretty well covered all parts of the body". He referred to T3 in the original matter, which is a claim for injury to "neck, spine, lower back, shoulders, elbows, wrists, arms, hands, fingers, feet, knees, RH HIP".
The Tribunal refused the application for an adjournment and Mr Miles proceeded to cross-examine Mr VZU. That cross-examination was interrupted when Mr Troy, a surgeon who had provided a report to the respondent, was called. Mr VZU had requested that he attend to be cross-examined.
The hearing continued on 8 May 2001. The respondent called two further medical expert witnesses, Dr Strauss, a psychiatrist and Mr Brazenor, a neurosurgeon, both of whom were cross-examined by Mr VZU.
After Mr Brazenor's evidence concluded, the Tribunal asked Mr Miles to resume cross-examination of Mr VZU. Mr Miles asked that Mr VZU complete his evidence-in-chief first. That issue arose because Mr VZU had lodged as exhibit A5, a further claim for compensation dated 4 May 2001. The respondent contended that it was not in fact a new claim, but a further document related to costs of treatment and loss of income in respect of matters already before the Tribunal.
The Tribunal (at trans. p260) asked Mr VZU to go back into the witness box and "tell us what you believe to be your claim insofar as you didn't cover it when you gave evidence-in-chief the first day".
There was considerable difficulty, again, getting Mr VZU to formulate his claim. The Tribunal therefore stated that it would make a further direction requiring Mr VZU (trans. p270) "to put in writing a full statement with copies of any documents you rely on and only if and when that full statement has been prepared by you will this matter ever be listed again."
The Tribunal explained (trans. p270-271):
See a lot of work was done by the respondent's solicitors, the direction was that the respondent lodge with the Tribunal and send to the applicant, one, further T documents in respect of the new matter, and two, the applicant's sick leave records. Both of those were done. Then there was also a direction that the applicant lodge with the Tribunal and send to the respondent copies of any documents on which he intends to rely within 21 days of receiving T documents in matter 2068. I don't know what date we got those T documents, . . .
MR MILES: I'm instructed that they were sent by letter or letter accompanying a courier on 9 March.
MRS DWYER: On 9 March. So there was plenty – more than 21 days that you had in which to put in any material on which you were relying and you ignored that direction. It seems that the only thing we can do now is, as I've said before, say that this matter not be listed until a full statement is obtained from you together with accompanying material and one copy of that is sent to Miss Brady at Tress Maddox and another copy is sent to the Tribunal, and you will need to certify at the end of it that it covers all the matters on which you intend to rely in this proceeding. Okay, so that's all we can do. Thank you.
On 10 May 2001 the Tribunal made a direction in the following terms:
1.This matter came on for hearing on 15 February, and on 7 and 8 May 2001. During the last day of hearing it became apparent that the applicant had not covered in his evidence all the matters on which he sought to rely.
2.The Tribunal directs:
(a)The applicant lodge with the Tribunal and forward to the respondent, a full statement setting out all matters on which he intends to rely together with copies of any documents which he claims are relevant.
(b)The applicant certify that no further material or new matters will be raised at the resumed hearing.
(c)This matter not be listed for further hearing until the applicant's statement and certification are lodged with the Tribunal.

A copy of that direction was forwarded to Mr VZU by letter dated 11 May 2001. It was sent to his Post Box address which is the only address he has given the Tribunal.

On 19 June 2001 the Tribunal received a letter from the respondent's solicitor in the following terms:
We refer to the direction of the Tribunal dated 10 May 2001 in relation to the above matters.
That direction provided that the applicant:
(a)lodge with the Tribunal and forward to the respondent, a full statement setting out all matters on which he intends to rely together with copies of any documents which he claims are relevant.
(b)certify that no further material or new matters will be raised at the resumed hearing.
The direction also provided that the matter would not be listed for further hearing until the applicant's statement and certification had been lodged with the Tribunal.
It is some six weeks since this matter last proceeded before the Tribunal. The respondent has not received any of the material which the Tribunal has directed the applicant to provide. The respondent considers that the applicant has had a reasonable period within which to provide the directed material, particularly when it is borne in mind that the matter was also adjourned between 15 February 2001 and 7 May 2001 during which time the applicant was to provide similar material.
We are therefore instructed to request that this matter be listed for a face to face directions hearing, at which time the respondent will seek an order of the tribunal pursuant to sub-s.42A(5) of the Administrative Appeals Tribunal Act 1975 dismissing the applicant's three applications without proceeding to review the decisions, on the basis that the applicant has failed within a reasonable time to comply with a direction by the Tribunal in relation to the application.
A copy of this letter has been forwarded to the applicant.
We look forward to hearing from you in relation to the above.
On 26 June the Tribunal arranged for the district Registrar to send a letter to Mr VZU and to the respondent's solicitor as follows:
Senior Member Dwyer has asked me to write to the parties in response to the letter from Tress Cocks and Maddox dated 19 June 2001.
The Tribunal's direction of 10 May 2001 did not specify the time within which the applicant was to comply with paragraphs 2(a) and (b) of the direction. It was the Tribunal's view that the sanction of not listing the matter for hearing until the applicant complied was sufficient. In those circumstances Senior Member Dwyer is of the view that it would be inappropriate to deal at this stage with an application by the respondent to dismiss the applications on the basis set out in the letter of Tress Cocks and Maddox. However if the applicant has not complied with paragraphs 2(a) and (b) of the direction of 10 May by 10 August the Tribunal may take a different view of the matter. Senior Member Dwyer suggests that the respondent consider the position after 10 August 2001.
Another matter which has arisen is that Mr Brassil's term of appointment to the Tribunal will expire on 30 June 2001. Would the parties please advise me in accordance with s 23(1) of the Administrative Appeals Tribunal Act 1975 whether in view of Mr Brassil ceasing to be a Member of the Tribunal they agree to the proceeding being completed by the Tribunal constituted by the remaining members, Senior Member Dwyer and Dr Fricker?

The letter was sent to Mr VZU's post box address.

On 6 July 2001 the District Registrar of the Tribunal received a fax from the respondent's solicitors consenting to the proceeding being completed by the Tribunal constituted by Senior Member Dwyer and Dr Fricker pursuant to s 23(1) of the Act. No reply was received from Mr VZU.
On 13 August 2001 the District Registrar received a further letter from the respondent's solicitors. it read as follows:
We refer to our letter to the Tribunal of 19 June 2001 in which we requested that this matter be referred to a directions hearing to address the applicant's failure to comply with a direction of the Tribunal.
The Tribunal did not consider at that stage that it was appropriate to refer the matter to a directions hearing, but indicated that the Tribunal might take a different view of the matter if the applicant had failed to comply with its direction of 10 May 2001 by 10 August 2001.
The direction of the Tribunal dated 10 May 2001 provided that the applicant:
(a)lodge with the Tribunal and forward to the respondent, a full statement setting out all matters on which he intends to rely together with copies of any documents which he claims are relevant.
(c)certify that no further material or new matters will be raised at the resumed hearing.
The direction also provided that the matter would not be listed for further hearing until the applicant's statement and certification had been lodged with the Tribunal.
We have not received any of the material which the Tribunal has directed the applicant to provide. The respondent resubmits that the applicant has had a reasonable period within which to provide the directed material, particularly when it is borne in mind that the matter was also adjourned between 15 February 2001 and 7 May 2001 during which time the applicant was to provide similar material.
We are therefore instructed to once again request that this matter be listed for a face to face directions hearing, at which time the respondent will seek an order of the Tribunal pursuant to sub-s.42A(5) of the Administrative Appeals Tribunal Act 1975 dismissing the applicant's three applications without proceeding to review the decisions, on the basis that the applicant has failed within a reasonable time to comply with a direction by the Tribunal in relation to the application.
A copy of this letter has been forwarded to the applicant.
We look forward to hearing from you in relation to the above.

On 14 August 2001 listing notices were sent to Mr VZU (at his Post Box address) and to the respondent's solicitors advising that the matter had been listed for a directions hearing, as requested by the respondent's solicitor, on Thursday 23 August 2001 at 3.00 pm.
When the matter came on for hearing on 23 August 2001, Ms Brady of Tress Cocks and Maddox appeared for the respondent. There was no appearance from Mr VZU. The Tribunal was constituted by Senior Member Dwyer and Dr Fricker.
Ms Brady outlined the history of non-compliance by Mr VZU with the directions made by the Tribunal on 15 February 2001 and 10 May 2001. She submitted that Mr VZU had failed within a reasonable time to proceed with the application and to comply with the two directions made by the Tribunal in relation to the application.
I am satisfied that Mr VZU has failed within a reasonable time:
(i)to proceed with this application; and
(ii)to comply with the directions made by the Tribunal on 15 February 2001 and 10 May 2001.

On behalf of the Tribunal I dismiss the application without proceeding to review the decisions.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member
Signed:         G.A. Carney
  Personal Assistant
Date/s of Hearing  15 February 2001, 7 and 8 May and
  23 August 2001
Date of Decision  23 August 2001
Counsel for the Applicant        Mr C Miles
Solicitor for the Applicant         Tress Cocks and Maddox
Counsel for the Respondent    Nil
Solicitor for the Respondent    Nil Self Represented