WCNC and Comcare (Compensation) - [2019] AATA 2777

WCNC and Comcare (Compensation) [2019] AATA 2777 (21 August 2019)
Division:GENERAL DIVISION
File Number(s): 2018/1726
2018/1727
2018/2720
2018/3300
2018/3301

Re:WCNC
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:21 August 2019
Place:Canberra

In respect of the application for a stay of proceedings:
(a)on or before 23 August 2019, Comcare is to inform the Tribunal if it has formalised a request for WCNC to undergo an examination by a psychiatrist for the purposes of s 57(1) and, if so, details of the examination;
(b)on or before 27 August 2019, WCNC is to inform the Tribunal if she refuses to undergo the examination, as requested and, if so, all further materials and submissions on which she will rely for the purposes of s 57(2);
(c)in that event, on or before 30 August 2019, Comcare is to give the Tribunal all further materials and submissions on which it will rely for the purposes of s 57(2), whereupon the Tribunal will proceed forthwith to determine its jurisdiction and the stay application;
Otherwise, should there be no further issue arising in respect of s 57 of the SRC Act –
(d)on or before 30 August 2019, Comcare is to give the Tribunal and WCNC a timetable agreed by the parties for -
(i)the filing and service of all further materials on which each party will rely at hearing; and
(ii)each party’s amended Statement of Facts, Issues and Contentions.
........................................................................
Mr S. Webb, Member
COMPENSATION – applications for review of decisions denying compensation in respect of accepted injury - request to attend a medical examination in the course of proceedings – application of s 57 of the Safety, Rehabilitation and Compensation Act 1988 – particulars of the examination not specified in the notice – requirement for specificity to enable compliance or trigger sanction – purported refusal to attend unspecified examination – conditional agreement to attend – ongoing negotiations - meaning of ‘reasonable excuse’ – rights not presently suspended - stay application held over – orders made
Administrative Appeals Tribunal Act 1975 (Cth) s 2A, 33, 39
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4, 5A, 5B, 14, 16, 19, 37, 57, 60, 62, 64
Cases
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27
Australian Postal Corporation v Forgie [2003] FCAFC 223
Australian Postal Corporation v Sinnaiah [2013] FCAFC 98
Chowdhary v Bayne [1999] FCA 41
Bropho v Western Australia [1990] HCA 24
Buck v Comcare [1996] FCA 1485
Carr v Western Australia [2007] HCA 47
Coco v R [1994] HCA 15
Comcare v Singh [2012] FCA 136
Crawford v Australian Capital Territory [2015] ACTSC 282
Golden v V’Landys [2015] NSWSC 158
McKinnon v Commonwealth of Australian & Ors [1998] FCA 1456.
Melbourne Steamship Co Pty Ltd v Morehead (1912) 15 CLR 333
Plaintiff M47-2012 v Director General of Security [2012] HCA 46
Plaintiff [name withheld] v Stapleton [2017] NSWSC 914.
Pyman v Whitefriars College Inc [2019] VSC 361.
Re Guerriero and Comcare [2017] AATA 2984.
Telstra Corporation Limited v Administrative Appeals Tribunal [2003] FCA 102
REASONS FOR DECISION
Mr S. Webb, Member
21 August 2019
WCNC became unwell at work. She claimed and was paid compensation. She did not return to work and was retired on medical grounds. After a while, Comcare decided her injury had resolved and she was no longer entitled to compensation for medical treatment expenses and incapacity for work. Comcare also rejected her claim for permanent impairment compensation. WCNC applied for review of these decisions by this Tribunal.
In the course of the resulting proceedings, Comcare requested WCNC undergo a medical examination by a psychiatrist. The request became the subject of dispute in which WCNC resisted undergoing another examination. Consequently, Comcare sought orders staying the proceedings pending WCNC’s attendance for the medical examination.
WCNC opposed the granting of such an order, arguing that she had a reasonable excuse for refusing to submit to a further medical examination.
It is this matter, alone, that I must presently decide.
In order to address it, regard must be had to the Tribunal’s jurisdiction and powers, in consideration of relevant provisions of the Administrative Appeals Tribunal Act 1975 (the AAT Act) and the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). Of central importance is the power to require a medical examination under s 57 of the SRC Act –
57 Power to require medical examination
(1) Where:
(a) a notice has been given to a relevant authority under section 53 in relation to an employee; or
(b) an employee has made a claim for compensation under section 54;
the relevant authority may require the employee to undergo an examination by one legally qualified medical practitioner nominated by the relevant authority.
(2) Where an employee refuses or fails, without reasonable excuse, to undergo an examination, or in any way obstructs an examination, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place.
(3) The relevant authority shall pay the cost of conducting any examination required under this section and is liable to pay to the employee an amount equal to the amount of the expenditure reasonably incurred by the employee in making a necessary journey in connection with the examination or remaining, for the purpose of the examination, at a place to which the employee has made a journey for that purpose.
(4) The matters to which the relevant authority is to have regard in deciding questions arising under subsection (3) include:
(a) the means of transport available to the employee for the journey;
(b) the route or routes by which the employee could have travelled; and
(c) the accommodation available to the employee.
(5) Where an employee’s right to compensation is suspended under subsection (2), compensation is not payable in respect of the period of the suspension.
(6) An employee shall not be required to undergo an examination under this section at more frequent intervals than are specified by the Minister by legislative instrument.
It is not controversial that the requirements of s 57(1)(a) and (b) are satisfied in this case.
ISSUES
Considering the submissions of the parties, the following questions arise –
(e)Does the Tribunal have jurisdiction and power to determine matters in respect of s 57 of the SRC Act?
(f)Has Comcare requested WCNC to undergo a medical examination under s 57(1) of the SRC Act?
(g)Has WCNC failed or refused to undergo an examination, as requested?
(h)If so, is there a reasonable excuse for her failing or refusing to do so?
(i)What is the effect on the tribunal proceedings?
DOES THE TRIBUNAL HAVE JURISDICTION AND POWER TO DETERMINE MATTERS IN RESPECT OF S 57 OF THE SRC ACT?
The Tribunal’s jurisdiction is conferred by s 64 of the SRC Act.
That section provides for the Tribunal to review a ‘reviewable decision’, being, by definition, a decision made under s 38(4) or s 62 of the SRC Act. I note in passing that s 38(4) is not presently relevant. Section 62 provides for the reconsideration of a ‘determination’, being a term defined under s 60(1) of the SRC Act –
determination means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 29A, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.
As can be seen, s 57 of the SRC Act does not appear in the defined meaning of ‘determination’.
From this it follows that the Tribunal has no jurisdiction to review a decision made under s 57 of the SRC Act.[1]
[1] Australian Postal Corporation v Forgie [2003] FCAFC 223 at [73].
But that is not the end of the matter. In circumstances, as present, where proceedings under s 64 of the SRC Act are on foot in the Tribunal, the Tribunal has procedural powers under s 33 of the AAT Act. These powers are not modified by s 65 of the SRC Act. This notwithstanding, the Tribunal’s discretion to determine procedure is expressly subject to ‘any enactment’. In circumstances where ‘an employee refuses or fails, without a reasonable excuse, to undergo an examination, or in any way obstructs an examination’ under 57(2) of the SRC Act, the employee’s rights, inter alia, to ‘institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place’. Under s 4(12) of the SRC Act, the ‘institution of a proceeding’ refers to an application for review by this Tribunal. In circumstances where conditions precedent to the suspension occur, the suspension has effect.
Thus, where a dispute of the present kind arises in respect of a requirement to undergo an examination under s 57 of the SRC Act, jurisdictional fact questions arise of a kind similar to those Finn J dealt with under s 37(7) in Chowdhary v Bayne.[2] An objective assessment of the law and the facts is required. Where facts necessary to trigger the suspension are established, the proceedings are suspended by operation of the legislation - “The statute stipulates the circumstances in which an employee's rights will be suspended. No decision is required to bring that about”.[3] This does not require an order of the Tribunal: the section “does not, relevantly, authorise or require a decision of an administrative character to be taken”[4]. Nevertheless, the Tribunal must determine if it has jurisdiction to proceed and its power to make directions under s 33 of the AAT Act remains intact.
[2] [1999] FCA 41 at [10]-[13].
[3] Telstra Corporation Limited v Administrative Appeals Tribunal [2003] FCA 102 at [9].
[4] Buck v Comcare [1996] FCA 1485 at [17].
HAS COMCARE REQUIRED WCNC TO ATTEND A MEDICAL EXAMINATION UNDER S 57(1) OF THE SRC ACT?
WCNC accepts that Comcare asked her to undergo a medico-legal examination by Dr Cocks, a consultant psychiatrist. She argues, however, that the request was not reasonable in the circumstances of her case and this informs her excuse for refusing to undergo the examination. While WCNC’s legal representative, Mr Maling, explained that he was not submitting that the reasonableness of the request was a relevant consideration in determining if a request had properly been made under s 57(1) of the SRC Act, it is not entirely clear to me that he gave this proposition away entirely. Mr Maling did not make any express submissions regarding the proper construction of s 57(1), but,to my mind, it is possible to construe this as one point of the submissions he made in respect of reasonableness, proportion, Tribunal procedure, delay, personal liberty and “the old-fashioned, traditional, and almost instinctive, standard of fair-play to be observed by the Crown when dealing with subjects”.[5] For the avoidance of any doubt, I will address these matters shortly.
[5] Melbourne Steamship Co Pty Ltd v Morehead (1912) 15 CLR 333, per Griffith CJ at 342.
Comcare asserts that several informal requests were made for WCNC to undergo a medico-legal examination with Dr Cocks, each of which was refused. In response to this impasse, Comcare says it formalised the request in a written notice. Counsel for Comcare, Mr Berger, accepted that the notice did not specify any particulars of the examination by Dr Cocks (or any other doctor), but argued that no such specificity is required to properly formulate a request for the purposes of s 57(1) of the SRC Act. Mr Berger argued that flexibility is an important feature of s 57(1), and construing the words ‘an examination’ in a manner that requires particularity would not be consistent with the text or the purposes of the section. In Comcare’s submission, a request was clearly made for WCNC to undergo an examination by Dr Cocks which meets the requirements of s 57(1) of the SRC Act.
Questions concerning the proper construction of the legislation arise.
CONSTRUCTION OF S 57 OF THE SRC ACT
At first blush, the text of s 57(1) appears plain enough. On closer examination, however, there is a deal of scope for different interpretations of meaning. For example, is a ‘request’ particular to ‘an examination’ and, if so, is it necessary for a request to set out particulars of the examination before it may be considered valid? Does the section require a ‘request’ to be formalised? To what extent, if at all, do considerations of reasonableness, proportion, Tribunal procedure, delay, personal liberty and fairness apply when determining if a ‘request’ is properly made?
To answer these questions, it is necessary to consider the text, context and purposes of the legislation.
The noun ‘examination’ preceded by the indefinite article ‘an’ in the phrase ‘undergo an examination by one legally qualified medical practitioner’ in s 57(1) is open to two interpretations: on the one hand, it may be construed to refer to any examination by a qualified medical practitioner and, on the other hand, it may be construed as referring to a singular or particular examination. The use of indefinite articles allows for the possibility that more than one examination may be requested. The meaning is clear, however, when the section is read as a whole - “...the meaning of any statutory provision..., and thus its range of operation, must be determined ‘by reference to the language of the instrument viewed as a whole”.[6] When one considers the words ‘an examination’ in s 57(2), it can be seen that this is subsequently referred to as ‘the examination’, connoting a singularity. Similarly, in s 57(3), ‘any examination’ is subsequently referred to as ‘the examination’. It is clear on a plain reading of the text that ‘an examination’ refers to a particular event where refusal or failure to undergo the examination without a reasonable excuse will cause the claimant’s particular rights to be suspended until the examination is undertaken.
[6] Plaintiff M47-2012 v Director General of Security [2012] HCA 46, per Hayne J at [162], citing Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 320.
This construction is consistent with and serves the purposes of the section. These are to compel a claimant employee to undergo an examination by a legally qualified medical practitioner for the purposes of obtaining a medical assessment relating to a claim for compensation. The compulsion to attend an examination has two elements: a requirement in the form of a ‘request’ to undergo an examination, and a sanction for failing or refusing to do so without a reasonable excuse. Both elements are directed to ‘an examination’, in the singular. Furthermore, the compulsion demands specificity and the sanction requires formality. The question is how far does the legislation go in pursuing its purposes?[7]
[7] Carr v Western Australia [2007] HCA 47, per Gleeson CJ at [5]-[7].
It is quite clear that, for the s 57(2) compulsion to operate, sufficient specific details of the particular examination should be provided to the employee to enable him or her to comply – in order to enable compliance, the employee must be fully informed of what is required. It is difficult to see how a sanction that involves the suspension of a claimant employee’s rights to compensation under the SRC Act can equitably apply if the compliance requirement is cast in vague, general or imprecise terms, without specifying details of the examination the employee is requested to undergo.
It is for this reason that formality is required to remove doubt or uncertainty: the essential pre-conditions of a self-executing sanction must be clearly and precisely spelled out in the initiating requirement: the s 57(1) ‘request’. Courts have long insisted upon “unambiguously clear” intention and “irresistible clearness”[8] when construing legislation that is purported to abrogate or curtail fundamental principles or rights.[9] General language that may give rise to ambiguity or uncertainty is not sufficient.[10] A similar standard of clarity is required in an instrument created for the purpose of enforcing compliance with a condition precedent to such abrogation or curtailment of rights under s 57 of the SRC Act.
[8] Bropho v Western Australia [1990] HCA 24, per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ at [13].
[9] Coco v R [1994] HCA 15, per Mason CJ, Brennan, Gaudron and McHugh JJ at [10].
[10] Australian Postal Corporation v Sinnaiah [2013] FCAFC 98 at [32].
The construction contended for by Comcare is that ‘an examination’ does not refer, solely, to a particular examination, rather ‘an examination’ can be understood to refer to any examination by a nominated doctor, even though the place, date and time of the examination has not been set down. There are two difficulties with this construction. Firstly, a claimant employee in receipt of a request in such terms would not be able to satisfy the request under s 57(1) of the SRC Act by undergoing the examination. For that to occur, the place, date and time of the examination would be required. Secondly, Comcare’s construction would produce a great deal of uncertainty. Served with a request in such terms, a claimant employee would not know the date and time of the examination and hence, whether or not they would be able to undergo it. The purpose of s 57 of the SRC Act is to provide a strong incentive for a claimant to undergo an examination by a doctor nominated by the relevant authority. For that to occur, the claimant should be left in no doubt about the examination they are being asked to undergo.
Comcare’s argument that s 57(1) of the SRC Act should be read broadly, without a requirement for particulars of the specific examination, as this would allow the section to operate with sufficient flexibility to accommodate the circumstances of claimants, is not persuasive. The compelling incentive for a claimant to undergo an examination is not amenable to flexibility of this kind. Particularity is required, with or without consultation with the claimant, as to their availability. This does not mean that there is no room for flexibility. Arrangements and particulars may be negotiated prior to formalisation of a request, or amendments could be made to the request, or a new request issued, should circumstances change.
Furthermore, a request might set out options or alternatives and, if these are set out with sufficient particularity, in conformation with the section, the incentive of the sanction for refusing or failing to comply, absent a reasonable excuse, would then apply. If a claimant refuses or fails to undergo the examination particularised in one of the options or alternatives set down, then the sanction set out in s 57(2) of the SRC Act will apply unless the claimant has a reasonable excuse.
This construction is consistent with a plain reading of the text and it is consistent with the clear purposes of the section. There is no ambiguity. It is not necessary to read the section narrowly or broadly, up or down, or to import words to understand the clear meaning of the words used. The use of the indefinite article ‘an’ in relation to ‘examination’ does not connote any examination by the nominated doctor but refers to the particular examination that is subject of the request.
With regard to considerations of reasonableness, proportion, Tribunal procedure, delay, personal liberty and fairness, there are a number of things to say.
Firstly, these are not matters for the Tribunal to decide in respect of s 57 of the SRC Act. As I have said, the Tribunal has no jurisdiction to review, overturn or suspend a request under s 57(1) of the SRC Act.
Secondly, provision is made in the terms of the legislation for a balance to be struck between the rights and obligations of a claimant employee, and the obligations, discretions and powers of a ‘relevant authority’. The balance is exemplified by the express limit on the number of medical practitioners who may conduct ‘an examination’ under s 57(1) of the SRC Act, and by the Ministerial power under s 57(6) of the SRC Act to limit the frequency with which an examination may be required.

It can be accepted that the compulsion to undergo an examination no doubt intrudes upon the personal liberty of a claimant employee. This is to be weighed against the statutory obligation of Comcare to make a proper assessment of the claim, undertaking the functions set out in s 69 of the SRC Act and determining claims in the manner required by s 72 of the SRC Act. Comcare’s assessment of the merits of a claim must be undertaken before liability to pay compensation from the public purse can be accepted. This is an important element of providing fairness to claimants and others engaging in or covered by the compensation scheme the Act provides, as well as taxpayers and the public at large. There is a public interest in the equitable and efficient administration of the scheme the SRC Act provides.
Thirdly, issues of reasonableness may arise in respect of a request under s 57(1) of the SRC Act. These are not considerations that require the terms of s 57 of the SRC Act to be read down in any way, however. Many are the cases where issues of this kind have arisen, in which a claimant employee cavils with a request on grounds that the request is not reasonable, or it is oppressive or unjustified or excessive, in the case of alleged doctor shopping for example. Considerations of this kind may be relevant when assessing the reasonableness of an excuse for the purposes of s 57(2) of the SRC Act, but they are not matters for the Tribunal to decide when assessing whether a ‘request’ has been made for the purposes of s 57(1) of the SRC Act – where a claimant employee considers a request is manifestly unreasonable or oppressive or in some way untenable, there is no recourse to merits review by application to the Tribunal. Matters of that kind may be amenable to judicial review by the Federal Court under the Administrative Decision (Judicial Review) Act 1977.
Fourthly, to the extent that Mr Maling asserts a lack of proportionality should bear upon proper construction of the legislation, where disproportion exists in the presence of ambiguity this may be properly taken into account when determining the correct interpretation. Comcare’s request for WCNC to undergo a further expert psychiatric examination for the purposes of properly assessing her claim, and the potential suspension of rights should she refuse or fail to comply with the request, must be considered in the context of Comcare’s liability to pay WCNC compensation in respect of the injury for which it accepted liability. The severity of the sanction for refusing or failing to comply may appear to be somewhat disproportionate, harsh or even draconian, but this only applies absent a reasonable excuse. Presently, the construction I have set out does not result in disproportion of a kind that would require further consideration. That said, of course, proportionality might be a relevant consideration when assessing the reasonableness of an excuse proffered by a claimant under s 57(2) of the SRC Act.
Fifthly, issues of Tribunal procedure in a particular case, including directions and listings made, materials adduced by the parties and the statutory objectives set out in s 2A of the AAT Act, are matters that a relevant authority should consider when deciding to make a request under s 57(1) of the SRC Act in the course of proceedings before the Tribunal. The effect on Tribunal proceedings of such a request may be significant in terms of delay and increased costs, on the one hand, especially if the request is made late in proceedings and in close proximity to a hearing of the application, and the introduction of relevant probative evidence on the other. Furthermore, even though under s 66(1) of the SRC Act materials given to the Tribunal within 28 days of a hearing cannot be admitted as evidence without approval, under s 39(1) of the AAT Act, the Tribunal is obliged to provide each party with a reasonable opportunity to present their case.
REQUESTS TO UNDERGO AN EXAMINATION
The Tribunal has been provided with summaries and extracts of communications between the legal representatives of the parties.[11] This information is sufficient to establish that, at least from 15 January 2019, the parties were engaged in negotiations with respect to WCNC undergoing an examination by Dr Cocks. Negotiations were ongoing at the time of the interlocutory hearing.
[11] Exhibit 1.
Through its legal representatives, Comcare attempted to arrange for WCNC to attend a medico-legal examination with Dr Cocks in Sydney on 29 January 2019, setting out three possible appointments. In response, Mr Maling informed Comcare that WCNC did not consent to any of the proposed appointments with Dr Cocks. On 4 February 2019, Comcare’s solicitor sought further clarification from WCNC. Mr Maling informed Comcare that WCNC did “not consent to any appointment with Dr Cocks at this stage of proceedings”.[12]
[12] Ibid, paragraph [28e].
These communications were informal and the proposed examination was not put to WCNC in terms that were sufficiently particularised or formal to constitute a ‘request’ for the purposes of s 57(1) of the SRC Act.
It appears that on 13 March 2019, under Tribunal directions, Comcare again advised WCNC that it wanted to arrange for her to be examined by Dr Cocks. On 19 March 2019, WCNC advised that she did not consent to further expert evidence being adduced by Comcare. As I understand Mr Maling’s submissions, the objection relates, in part at least, to Comcare obtaining a new expert report at a late stage of the proceedings, after the return of hearing certificates had been completed. This, he argued, should not be permitted. Whatever is to be made of this submission, which I will return to when dealing with issues arising under s 57(2) below, the Tribunal’s power to determine procedure is not determinative of whether a ‘request’ has been made for the purposes of s 57(1) of the SRC Act.
On 19 June 2019, Comcare issued a formal notice requiring WCNC to attend an examination with Dr Cocks.[13] The notice did not specify details of ‘an examination’, however – no particulars of the date and time of the examination were provided. Notwithstanding this, the author of the notice refers to s 57 of the SRC Act and sets out the consequence should WCNC refuse or fail to comply.
[13] Ibid, Annexure A.
Clearly enough, the notice purports to be a ‘request’ for the purposes of s 57(1) of the SRC Act.
The notice is deficient in one important regard. It is difficult to understand how WCNC could comply with the request when the particulars of the examination have not been provided to her. Absent that information, the notice lacks an essential element of a ‘request’ for the purposes of s 57(1) of the SRC Act. This deficiency may render the notice ineffective as an instrument capable of triggering suspension of WCNC’s rights under s 57(2) of the SRC Act. Without being provided with particulars, such as the date and time of the examination she was requested to undergo, it is difficult to comprehend how she could be found to have failed to comply with the request. Whether she refused to undergo any examination by Dr Cocks is another matter.
On 1 July 2019, Mr Maling informed Comcare that WCNC “does not wish to attend on Dr Cocks, as it will likely have a negative impact on her mental wellbeing” and offered, instead, to undergo a further examination by Dr Oelrichs or Dr Gertler, being psychiatrists who had previously examined her for Comcare.[14]
[14] Exhibit 2, page 33.
Correspondence between the parties ensued, setting out offers, counter-offers, objections and responses.[15] WCNC provided Comcare with supporting materials, including a short report from her treating psychiatrist, Dr Steele.[16]
[15] Exhibit 1.
[16] Ibid, pages 5-6.
Subsequently, shortly before the hearing of this issue, Comcare informed Mr Maling of the date and time of the examination to be performed by Dr Cocks at his Sydney Practice. Comcare confirmed it is offering to pay for WCNC’s travel expenses and the travel expenses of a support person. I understand an appointment has been made for the examination to take place at 2pm on 18 September 2019. In the course of the hearing, Comcare provided Mr Maling with particulars of an alternative examination by a different psychiatrist, Dr Redden, in her Brisbane practice, with a tentative appointment booked on 18 September 2019, albeit at a different time. Mr Maling advised that WCNC was not aware of the alternative appointment and he would need to seek instructions. No application for adjournment was made, however.
Considering this history and the operation of s 57(1) and (2) of the SRC Act, it is probable that the deficiency in the notice Comcare issued under s 57(1) may be addressed if particulars of the examinations with either Dr Cocks or Dr Redden on 18 September 2019 are included. Should it be necessary, time will be allowed for this to occur. Doing so will remove any uncertainty about the application of s 57(2) should WCNC refuse of fail to undergo one of those examinations without a reasonable excuse – her rights to proceed will be suspended in that event.
HAS WCNC REFUSED TO ATTEND AN EXAMINATION, AS REQUESTED?
It appears to be common ground that WCNC refused to undergo an examination by Dr Cocks as requested under the notice Comcare issued on 19 June 2019.
On the present materials, however, no such firm conclusion can be drawn.
Mr Maling made the curious submission that WCNC did not want the Tribunal proceedings to be stayed and, if compelled to do so, she would attend a medico-legal examination as requested, but presently she is refusing to do so. I pause at this point to note that WCNC provided a written statement,[17] but she was not called to give oral evidence. In her statement, WCNC does not expressly refuse to undergo an examination by Dr Cocks, instead, she states –
“…
3. I am aware that Comcare have issued a notice for me to attend an appointment with Dr Chris Cocks. I do not know the date or time of the appointment, but have asked my solicitor to seek a date and time from Comcare. I understand that Dr Cocks practices in Sydney.
4. This statutory declaration is my evidence to the Tribunal about my reasons for not wanting to attend an examination with Dr Chris Cocks.
…”[18]
[17] Exhibit 2.
[18] Ibid, page 1.
Mr Berger argued that WCNC has refused to comply with Comcare’s formal request for her to undergo an examination by Dr Cocks.
For the purposes of s 57(2) of the SRC Act, a claimant’s refusal to undergo an examination properly requested by a relevant authority cannot be inferred or assumed. WCNC’s unchallenged evidence, albeit not tested in cross-examination, is that she does not want to attend an examination by Dr Cocks in Sydney. Her reasons are clearly set out on the Statutory Declaration she made on 11 August 2019.[19]
[19] Exhibit 2, pages1-3.
To my mind, there is a substantial difference between a claimant stating that she does not want to undergo an examination by a psychiatrist she has not met, far from her home, and offering alternative suggestions, and a claimant refusing to undergo an examination by a nominated doctor. At the highest, as the correspondence between legal representatives of the parties makes very clear, WCNC’s resistance may amount to a conditional refusal in the context of an ongoing negotiation of suitable arrangements for an examination, should one be required.
The fundamental problem WCNC identified is the deficiency in Comcare’s notice of the s 57(1) request.
IS THERE A REASONABLE EXCUSE FOR REFUSING TO UNDERGO THE EXAMINATION REQUESTED?
Much has been said by Mr Maling and Mr Berger about legal principles underlying the conception of a ‘reasonable excuse’ for the purposes of s 57(2) of the SRC Act.
In the circumstances, it is not necessary to say much about these principles, which are well-settled and not controversial. Speaking of s 57, Keifel J (as she then was) made the following observation in Telstra Corporation Ltd v Administrative Appeals Tribunal[20] at 11 –
… Generally speaking, the subsection requires a reason personal to the employee. The excuse cannot be provided by an opinion formed by the Tribunal as to the need for the examination. That is a question for the Authority. It may be in some cases that oppressive conduct on the part of an Authority, and its effect upon an employee, could be relied upon as furnishing a reasonable excuse.
[20] [2003] FCA 102.
Thus, argument directed to the reasonableness of Comcare’s request for WCNC to undergo an examination by Dr Cocks may only be relevant insofar as, if at all, it relates to the reasonableness of her excuse for refusing, at least conditionally, to undergo such an examination.
It is very clear that WCNC’s primary reason for not complying with Comcare’s 19 June 2019 notice of request is that she did not know the date and time of the appointment with Dr Cocks. To my mind, that is a reasonable excuse for not complying with the deficient notice.
Nevertheless, the thrust of submissions made by each party are directed to different matters which I will now address.
The most recent medico-legal reports Comcare obtained are the reports of Dr Oelrichs and Dr Gertler in March and April 2018. Comcare considers it necessary to obtain another expert medical report from a psychiatrist, which at this late stage of the Tribunal proceedings is unfortunate. The arguments Mr Maling has raised opposing this on procedural grounds do not raise a reasonable excuse for WCNC’s refusal – matters of this kind are not an excuse that is personal to WCNC.
Comcare asserts that materials recently obtained under summons are of direct relevance to a proper psychiatric assessment of operative factors contributing to WCNC’s psychological ailment, which was previously accepted as a ‘injury’ in the form of a ‘disease’ for the purposes of s 5A, s5B and s 14 of the SRC Act. The bundle of materials Comcare provided in support of this submission is voluminous. It contains medical records and clinical notes of WCNC’s treating practitioners. The particular pages on which Comcare relies are marked.[21] These pages, alone, I have placed in Exhibit 3. Mr Berger asserts that these materials, and the sensitive private information they contain, have not yet been fully disclosed to and considered by psychiatrists who have examined WCNC in a medicolegal context in the past. Mr Maling cavilled with aspects of this submission, but he did not point me to any contrary evidence.
[21] Exhibit 3 comprises pages 140, 142, 149, 150, 161, 310, 348, 359, 370, 378, 397, 419, 428 and 547 of the tender bundle submitted by Comcare.
The issues arising in WCNC’s case go to the extent to which different factors causally contribute to her psychological condition. In order to properly address these, the Tribunal will require detailed evidence. I am satisfied that all relevant information has not yet been considered by psychiatrists who have examined WCNC in a medicolegal context. This may affect their evidence. The issues of causal contribution in WCNC’s case are medically complex, and assessment of these will be assisted by expert evidence. This weighs in the balance when assessing if WCNC’s excuse for not wanting to undergo an examination by Dr Cocks is reasonable.
WCNC has been examined by a number of psychiatrists in the context of her claims for compensation. These include Dr Oelrichs, Dr Gertler, Dr Ventura and Dr White. There is also evidence from her treating psychiatrists, including Professor Looi and Dr Steele. I agree with Deputy President Bean’s comments in Re Guerriero and Comcare[22] regarding the common experience of many cases in this Tribunal, in which more than one medical expert is briefed to produce reports in the course of proceedings.[23] While in some cases, the number of experts briefed may be excessive and in other cases issues have arisen in respect of doctor-shopping allegations, this is not such a case.
[22] [2017] AATA 2984.
[23] Ibid, at [27].
Having heard the parties on this point, it appears to me that a further expert psychiatric report, addressing the new materials that have been produced, is justified in the circumstances and not excessive, and it may assist a proper assessment.
Mr Maling’s submissions in respect of the relative expertise of Dr Cocks do not raise a reasonable excuse that is personal to WCNC. The selection of expert medical witnesses is a matter for the parties. Comcare asserts that Dr Cocks has specialist expertise dealing with bipolar affective disorder. Mr Maling says Dr Cocks is a junior psychiatrist who has much less experience than Professor Looi, Dr Oelrichs, Dr Gertler, Dr Ventura and Dr Redden, having commenced psychiatric practice in 2013. It is not necessary or appropriate for me to say anything about these matters for present purposes – whatever Dr Cocks’ relative experience maybe compared with other psychiatrists, this does not constitute a reasonable excuse for WCNC to refuse a request to undergo an examination.
In consideration of WCNC’s psychological condition, I accept that she perceives some risk of harm if she is required to travel to undergo an examination with Dr Cocks in Sydney, but this does not amount to a real risk of the kind Hill J referred to in McKinnon v Commonwealth of Australian & Ors[24] -
… The more severe the risk, no doubt, the greater it would overweigh the interests of the defendant. The less severe, the more difficult the balancing process. If the risk is such that it is so very slight as not to constitute a real risk, an applicant's fears about the suggested risk would not outweigh the interests of justice that a defendant be entitled to defend his case as he thinks fit. However, I would accept the proposition that once the risk is a real one, then the Court would be slow indeed to impose it upon a plaintiff, if ever.[25]
[24] [1998] FCA 1456.
[25] Ibid, page 6.
The evidence of Dr Steele does not suggest that WCNC’s mental health will be placed at risk should she be required to undergo an examination by Dr Cocks, although this eventuality may cause WCNC some emotional distress.[26] In the doctor’s opinion any risk of harm may be reduced if the examination is conducted by a psychiatrist she has interacted with previously, such as Dr Oelrichs or Dr Gertler, or in closer proximity to her home in Queensland, perhaps by a visiting senior psychiatrist, avoiding the need for travel to Sydney. In Dr Steele’s recommendation, if travel is required, then this should be undertaken with a support person and the use of taxis.
[26] Exhibit 2, pages 5-6.
This evidence supports WCNC’s explanation for not wanting to undergo an examination by Dr Cocks in Sydney. Much as her explanation is understandable in her particular circumstances, her personal preferences and subjective concerns are not determinative - an assessment of reasonableness requires objectivity. Reasonableness is unlikely to be determined solely on WCNC’s subjective state of mind, even where there is a rational basis for her subjective concerns about undergoing another psychiatric examination.[27] All other relevant considerations should be taken into account.
[27] Comcare v Singh [2012] FCA 136 at [27].
Aside from the deficiency in Comcare’s 19 June 2019 notice and WCNC’s reasonable excuse in response, I am not persuaded that the other explanations WCNC has provided for not wanting, and conditionally refusing, to undergo an examination by Dr Cocks amount to a ‘reasonable excuse’ for the purposes of s 57(2) of the SRC Act.
Mr Maling drew attention to two cases decided under the laws of different States, namely Plaintiff [name withheld] v Stapleton[28] and Pyman v Whitefriars College Inc.[29] Both cases were decided under different laws, in different circumstances and with different facts. Both are clearly distinguished from the present case. Perhaps the most striking difference is that in WCNC’s case there is express legislative provision for a relevant authority to request a claimant to undergo an examination, where refusal or failure results in the suspension of rights to which I have referred. No such legislative scheme is evident in either of the cases to which Mr Maling drew attention, and I draw no point of relevant general principle from either case.
[28] [2017] NSWSC 914.
[29] [2019] VSC 361.
WHAT IS THE EFFECT ON THE TRIBUNAL PROCEEDINGS?

In the circumstances, the essential preconditions to the suspension of WCNC’s rights under s 57(2) of the SRC Act are not made out. Comcare has not yet made a sufficiently detailed formal request for WCNC to undergo an examination by Dr Cocks or Dr Redden that is capable of triggering suspension of her rights under s 57(2) of the SRC Act.
WCNC has not yet refused or failed to undergo a particular examination requested by Comcare under s 57(1) of the SRC Act. Negotiations are on foot over suitable arrangements for such an examination to occur.
With regard to the proposition put by Mr Maling that the Tribunal should proceed on the basis that WCNC has refused to undergo an examination by Dr Cocks as requested by Comcare, the Tribunal cannot proceed on the basis of an assumption. Evidence is required. In this instance, despite first appearances, the evidence does not establish that WCNC has refused a properly made request by Comcare under s 57(1) of the SRC Act. Nevertheless, to the extent that she conditionally refused to undergo an unspecified examination by Dr Cocks, the excuse she provided, that she did not know the date and time of the appointment, is reasonable. Otherwise, the excuses WCNC proffered for not wanting to undergo an unspecified examination by Dr Cocks in Sydney do not amount to a ‘reasonable excuse’ for the purposes of s 57(2) of the SRC Act.
Of course, if Comcare formalises a request for WCNC to undergo an examination with sufficient particularity, which then WCNC refuses or fails to undergo, the reasonableness of her excuse will then need to be reassessed on the evidence at that time.
In summary, presently, the effect of these circumstances on the proceedings is that WCNC’s rights are not suspended by operation of s 57(2) of the SRC Act and Comcare’s application for the proceedings to be stayed is not presently made out. Nevertheless, as the dispute between the parties in respect of a further examination is ongoing, and in view of the deficiency in Comcare’s request under s 57(1) of the SRC Act, the stay application will be held over for a short time, pending clarification of matters to which I have referred above. As will appear, I will issue procedural directions and the issue of a stay may be revisited if it is necessary to do so once the directions have been complied with.
There is one final matter to address.
Comcare argues that it is appropriate for it to bring forward new expert evidence in the form of a report by Dr Cocks or Dr Redden following examination of WCNC on 18 September 2019. It will be clear by now that I think there is some merit in this proposal.
WCNC opposes this course. Mr Maling argued that appropriate principle can be drawn from Golden v V’Landys (Golden)[30] and Crawford v Australian Capital Territory (Crawford).[31] I note that both cases, and the case of Aon Risk Services Australia Ltd v Australian National University,[32] to which Button J and Mossop AsJ each referred, relate to court procedures for trial. Insofar as any general principal of relevance can be drawn in respect of proceedings in this Tribunal, having regard to s 2A of the AAT Act, these do not assist WCNC’s case. One can readily accept that Button J’s remarks in Golden at [24] in respect of a “reasonably persuasive explanation” have some relevance to procedural considerations of the kind presently in dispute. One would expect Comcare to make a reasonably persuasive explanation why it should be permitted to adduce evidence so late in the proceedings. That is what it has done. Even though the reasons for delay may be appropriately criticised, the explanation provided is compelling in the circumstances – expert evidence based on full disclosure of all relevant circumstances is likely to assist a proper assessment of the issues for determination by the Tribunal.
[30] [2015] NSWSC 1589 at [21] and [24].
[31] [2015] ACTSC 282 at [19].
[32] [2009] HCA 27.
With regard to Mossop AsJ’s remarks in respect of “liberty to meander slowly towards a forensically advantageous position at a time convenient to the plaintiff’s solicitors”, [33] should be read in context. His Honour observed that “in some cases it will be appropriate to postpone identification of experts until pleadings and discovery have been completed” and “the meandering approach to the preparation of the case was acquiesced in by the defendant” up to a point.[34]
[33] Crawford at [20].
[34] Ibid, at [21].
I note that these remarks address adversarial proceedings in a court. Proceedings in the Tribunal have a different character and are not adversarial – the person who made the decision under review, and the parties, are obliged under s 33(1AA) of the AAT Act to assist the Tribunal in its task of merits review, making the correct or preferable decision on the evidence placed before it. While it may be that one party might seek to manipulate procedure to obtain a forensic advantage of some kind, the Tribunal has power to regulate procedure to ensure fairness to each party. I am not persuaded, and Mr Maling has adduced no evidence to support his contention, that Comcare is seeking to manipulate procedure for reasons of forensic advantage. The present difficulty has a different complexion, more akin, at worst, to slow or tardy conduct rather than deliberate manipulation, and, at best, a genuine attempt to ensure all relevant materials, including relevant expert evidence, are brought before the Tribunal to properly assist it to make the correct or preferable decision in WCNC’s case.
As I have said, the Tribunal is obliged to provide each party with a reasonable opportunity to present their case. While it may refuse to admit materials adduced by a party within 28 days of a hearing, caution must be exercised before doing so in respect of material that is likely to have direct relevance to a central issue for determination.
I note that this application is set down for hearing on 1 to 4 October 2019 inclusive.
The appointments Comcare has made for WCNC to be examined by Dr Cocks or Dr Redden are within 2 weeks of the hearing.
Even if Comcare was to provide any medico-legal report resulting from such examination, and this is a matter of some uncertainty, there would not be sufficient time for WCNC to properly consider it before commencement of the hearing. This may give rise to significant unfairness, potentially denying her a reasonable opportunity to present her case.
Furthermore, Mr Berger informed me that Comcare is not in a position to finalise its case until it obtains a new expert medicolegal report. This is because the issues of causation in a multifactorial ailment cannot properly be assessed without examination of all operative factors and the degree to which employment contributes cannot be assessed in isolation. This is correct.
The difficulty arising here is not one of law, it is one of timely conduct in ongoing proceedings. Comcare has given no adequate explanation why all aspects of WCNC’s case were not investigated early in the proceedings, which commenced on 28 March 2018.
It can be accepted that some delay has occurred as a result of negotiations, which have been unnecessarily protracted, in respect of a further medicolegal examination.
Considering these unfortunate and frustrating circumstances, it is appropriate to make procedural directions and, for the time being, the application will proceed to hearing as listed.

I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of Member S. Webb.

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Associate
Dated: 21 August 2019

Date(s) of hearing: 13 August 2019

Representative for the Applicant:

Solicitors for Respondent:

Counsel for Respondent:

Mr Thomas Maling, Elringtons Lawyers

Mr Aasish Ponna, Australian Government Solicitor

Mr Andrew Berger