Whitlock and Comcare (Compensation)

Case [2019] AATA 1911

Whitlock and Comcare (Compensation) [2019] AATA 1911 (16 July 2019)

Division:GENERAL DIVISION

File Number(s):      2018/1138

Re:Jessica Whitlock

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:16 July 2019

Place:Canberra

The application for dismissal of the review application under s42B(1)(c) of the AAT Act is refused.

........................................................................

Senior Member Linda Kirk

Catchwords

PRACTICE AND PROCEDURE - application for dismissal – abuse of process – fraudulent conduct and deception in prosecuting the claim - public confidence in the decision-making of the Tribunal – breach of obligation under s 33(1AB) of the AAT Act – the Tribunal’s power to dismiss applications under s 42B(1)(c) - application for dismissal refused

Legislation

Administrative Appeals Tribunal Act 1975 ss 2A, 33, 42B

Safety Rehabilitation and Compensation Act 1988

Cases

Academy of Global Business Training Pty Ltd and Australian Skills Quality Authority [2019] AATA 1345

Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256

Briginshaw v Briginshaw [1938] HCA 34

Brignolf and Comcare [2018] AATA 2004

Commonwealth of Australia v Snell [2019] FCAFC 57

Dare v Pulham (1982) 148 CLR 658

Frugtniet v Australian Securities and Investments Commission [2016] FCA 995

Grant v Repatriation Commission (1999) 57 ALD 1

Jeffrey & Katauskas v SST Consulting Pty Ltd (2009) 239 CLR 75

Kennedy and Comcare [2018] AATA 4171

Novosel v Comcare [2017] FCA 722

Oliver and Comcare [2018] AATA 1964

Re Filsell and Comcare (2009) 109 ALD 198

Re Novosel and Comcare (2015) 66 AAR 549

Ridgeway v The Queen (1995) 184 CLR 19

Rogers v R (1994) 123 ALR 417

Secondary Materials

Explanatory Memorandum, Tribunals Amalgamation Bill 2014

REASONS FOR DECISION

Senior Member Linda Kirk

16 July 2019

APPLICATION FOR DISMISSAL

  1. Ms Jessica Whitlock (‘the Applicant’) has applied for review of a decision by Comcare (‘the Respondent’) denying liability to pay her compensation for conditions she claimed she incurred in the course of her employment. This is an interlocutory application by Comcare for dismissal of this application for review, pursuant to s 42B(1)(c) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’), on the basis that it is an abuse of process.

  2. Section 42B(1) of the AAT Act allows the Tribunal to dismiss an application for review of a decision, at any stage of a proceeding:

    42B Power of Tribunal if a proceeding is frivolous, vexatious etc.

    (1)The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:

    (a)     is frivolous, vexatious, misconceived or lacking in substance; or

    (b)     has no reasonable prospect of success; or

    (c)     is otherwise an abuse of the process of the Tribunal.

  3. The application was considered and oral submissions heard by the Tribunal at an interlocutory hearing on 31 May 2019.

    BACKGROUND TO THE APPLICATION

  4. The Applicant lodged a workers’ compensation claim form dated 1 August 2017 for “depression” and “anxiety” which she alleged was caused by being “bullied through…

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AGLC
Whitlock and Comcare (Compensation) [2019] AATA 1911
Case
[2019] AATA 1911
Decision Date

CaseChat Overview and Summary

This matter came before Senior Member Linda Kirk of the Administrative Appeals Tribunal concerning a workers' compensation claim for depression and anxiety. The applicant had lodged a claim alleging these conditions were caused by workplace bullying and isolation. Following an initial determination denying liability and a subsequent affirmation of that decision on reconsideration, the applicant sought review by the Tribunal. The respondent, Comcare, subsequently applied for the dismissal of the application, alleging fraudulent conduct and deception in its prosecution, which it contended constituted an abuse of process and undermined public confidence in the Tribunal.

The central legal issue before the Tribunal was whether it possessed the power to dismiss the applicant's application for review under section 42B(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) on the grounds that the application constituted an abuse of process. This required the Tribunal to consider the scope of its dismissal powers, particularly in light of amendments that expanded these powers beyond the previous grounds of being frivolous or vexatious, and to determine if the conduct of the applicant and her representatives met the threshold for such dismissal.

The Tribunal reasoned that while the power to dismiss for abuse of process is broad, it is only to be exercised in the clearest of circumstances. It noted that low prospects of success or a factually or legally difficult case do not, in themselves, constitute an abuse of process. The Tribunal found that the applicant's primary case, despite its complexity, did not reach the threshold for dismissal as an abuse of process, as there remained real questions of fact and law to be determined. The Tribunal also observed that the respondent's approach in raising concerns about the applicant's case preparation at a late stage, without prior communication, appeared to be an attempt to bully a vulnerable applicant. The Tribunal concluded that dismissing the application would undermine public confidence in its decision-making processes by tolerating such conduct and would prioritise the convenience of the respondent over the purpose of the compensation jurisdiction.

Consequently, the Tribunal refused the application for dismissal. It indicated that if case management issues persisted, a directions hearing could be convened to set a timetable and make appropriate orders to ensure the matter proceeded efficiently towards a hearing on its merits.

Orders

Orders of the court

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Background

Background to the litigation

The application was considered and oral submissions heard by the Tribunal at an interlocutory hearing on 31 May 2019.BACKGROUND TO THE APPLICATION The Applicant lodged a workers’ compensation claim form dated 1 August 2017 for “depression” and “anxiety” which she alleged was caused by being “bullied through rumours, isolated from co-workers and management through rumours, and treated differently by management”.[1][1] T3, 16- 20. In an initial determination dated 7 December 2017,[2] a delegate of the Respondent denied liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (‘SRC Act’). The delegate was not satisfied that the Applicant’s employment had made a “significant contribution” to the development of the claimed conditions, and also found that subsection 7(7) of the SRC Act operated to preclude the conditions from being compensable.[2] T32, 155-158 On 5 January 2018, the Applicant requested a reconsideration of the determination dated 7 December 2017.[3][3] T35, 166-169. In a decision dated 2 March 2018,[4] an independent review officer of the Respondent affirmed the determination dated 7 December 2017, denying liability to pay compensation for the claimed conditions (‘the Reviewable Decision’). The independent review officer found that subsection 7(7) of the SRC Act did not apply in the circumstances, but considered that the claimed conditions were pre-existing and contributed to by non-work related factors that pre-dated the Applicant’s employment with the Commonwealth.[4] T43, 196-202. The Applicant filed an application for review of the Reviewable Decision with the Administrative Appeals Tribunal (‘the Tribunal’) on 9 March 2018,[5] submitting “The decision is wrong”.[5] T1, 1-14. In its Statement of Issues dated 19 April 2018, the Respondent identified the following as the issues relevant to the review:1.The diagnosis of the Applicant’s psychological condition;2.Whether the Applicant suffers from a psychological condition or aggravation of a psychological condition, which was contributed to, to a significant degree, by her Department of Parliamentary Services (‘DPS’) employment;3.Whether the Applicant made a wilful and false representation that she did not suffer or had not previously suffered from the psychological condition, such that the disease is not taken as an injury, pursuant to subsection 7(7) of the SRC Act;4.Whether Comcare is liable to pay compensation for the Applicant’s claimed psychological condition pursuant to s14 of the SRC Act. In her Statement of Facts, Issues and Contentions (SFIC) dated 18 January 2019, the Applicant identified the following as the issues relevant to the review:1.What is the correct diagnosis of the psychiatric condition suffered by the Applicant?2.Was the Applicant’s condition contributed to, to a significant degree, by her employment with the Agency?3.Is Comcare liable to compensate the Applicant pursuant to section 14 of the SRC Act?

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Applicant and her representatives have not met this requirement for reason that they have not ensured that the evidence submitted to date to the Tribunal and the contentions contained in the Applicant’s SFIC are not misleading or inaccurate. They have not therefore taken all reasonable steps to ensure that the information before the Tribunal will assist it to achieve its statutory objective.Undermining public confidence in the decision-making of the Tribunal Continuing this application would seriously damage public confidence in the decision-making of the Tribunal because it would involve the Tribunal allowing such a claim to continue to take up the time and resources of the Tribunal and the Respondent, and it would send a message that this behaviour is tolerated. The review application and the way it has been prosecuted through the Tribunal’s processes are eroding the Tribunal’s ability to protect its own processes. To not dismiss the application will erode public trust and confidence in the Tribunal’s decision-making, an objective made explicit in section 2A of the AAT Act. The addition to s42B of the power to dismiss where an application is an ‘abuse of process’ gives the Tribunal a much broader power to take into account actions that are contrary to the legislative scheme of both the SRC Act and the AAT Act.[17]Applicant’s submissions[17] Respondent’s Submissions at [62].Abuse of process The threshold for dismissal on the grounds of ‘abuse of process’ is only reached in the clearest of circumstances.[18] Low prospects of success in a factually or legally difficult case will not ground an ‘abuse of process’ submission.[19] The Applicant’s primary case, while medically and factually complex, comes nowhere near the category of cases amounting to an ‘abuse of process.[20] The authorities establish that if there is a real question to be determined whether of fact or law, and the rights of the parties depend on it, then it is not competent for the court or tribunal to dismiss the action as an abuse of process. A person should not be deprived of a right to have their case heard without very good reason. This matter is a ‘work in progress’ as the evidence is continuing to be gathered in preparation for the hearing in September.[18] Applicant’s Submissions at [1.3].[19] Applicant’s Submissions at [1.3].[20] Applicant’s Submissions at [2.5]. The issues in this matter have been identified and the majority of the evidence has been produced. The Applicant intends to obtain a supplementary report from Dr Miller addressing the more extensive records of the Applicant’s past psychiatric history, and additional lay statements and medical reports are being sought.[21] The lateness of the provision of additional reports and statements does not involve ‘abuse of process.’[22] [21] Applicant’s Submissions at [2.4].[22] Applicant’s Submissions at [2.4]. Even if the preparation of the case to date may be subject to criticism, this does not go to the question of whether the claim made by the Applicant has merit. It may be that closer management of the case is required to ensure that it is ready to proceed in September. A timetable may need to be set and orders made by the Tribunal at a directions hearing. The Tribunal is established to hear cases like this on the merits, and it would be putting the convenience of the Respondent, and perhaps less so the convenience of the Tribunal, above the purpose for which the compensation jurisdiction exists.

Ratio Decidendi

Legal Principle Established

The Respondent chose to ambush the Applicant leaving her a relatively short period of time to address the issues raised in the application. It has the appearance of an attempt to bully an unwell and vulnerable applicant.[28] The appropriate course would have been for the Respondent to make contact with the Applicant’s representative to express its concerns about the preparation of the case and deficiencies in the evidence.[29] CONSIDERATION AND REASONS[28] Applicant’s Submissions at [5.7].[29] Applicant’s Submissions at [5.8]The Tribunal’s power to dismiss an application for review - s 42B(1) Section 42B was introduced into the AAT Act by the Tribunals Amalgamation Act 2015 (Cth). The Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 explained:550. New section 42B would … provide for additional circumstances in which the Tribunal may dismiss an application for review…552. This amendment would modernise the language of existing paragraph 42B(1)(a) and clarify the policy surrounding the grounds for dismissal. The proposed new grounds are similar to dismissal powers available to other bodies. For example Rule 26.01 of the Federal Court Rules 2011 allow for summary judgment on matters which have no reasonable prospect of success, or are an abuse of process. Similarly, section 47 of the Queensland Civil and Administrative Tribunal Act 2009 provides for dismissal of applications where the application is frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process. These powers would provide the Tribunal with greater power to dismiss unmeritorious matters early where appropriate. Prior to the amendment, the power to dismiss was limited to an application that the Tribunal was satisfied was frivolous or vexatious. As Deputy President Humphries observed in Oliver and Comcare [2018] AATA 1964 (‘Oliver’) at [67], the Explanatory Memorandum makes clear that the power conferred by s 42B is intended to provide the Tribunal with more extensive power to dismiss unmeritorious matters than it had prior to the amendment to the provision. Paragraphs (a) to (c) of s 42B(1) are expressed in the alternative: Novosel v Comcare [2017] FCA 722 (‘Novosel’) at [83]. The Tribunal may dismiss an application for review of a decision at any stage of the proceeding if it is satisfied that the criteria in one or more of these sub-paragraphs are met.Summary dismissal for abuse of process As Justice Perry observed in Novosel at [104], ‘in the context of judicial proceedings the categories of abuse of process are not closed.’[30] Gaudron J explained the reasons for this in Ridgeway v The Queen (1995) 184 CLR 19 at 75:Abuse of process cannot be restricted to ‘defined and closed categories’ because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case.[30] Citing Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 (Batistatos) at 265 [9] (Gleeson CJ, Gummow, Hayne and Crennan JJ)