[Home] [Databases] [WorldLII] [Search] [Feedback] Administrative Appeals Tribunal of Australia

You are here: 

Haberecht and Australian Capital Territory (Compensation) [2020] AATA 4819 (30 November 2020)

Last Updated: 2 December 2020

Haberecht and Australian Capital Territory (Compensation) [2020] AATA 4819 (30 November 2020)

Division: GENERAL DIVISION

File Number(s): 2018/1924, 2018/2400, 2018/6319, 2019/0425, 2019/5074, 2020/7056

Re: Alison Haberecht

APPLICANT

And Australian Capital Territory

RESPONDENT

DECISION

Tribunal: Mr S. Webb, Member

Date: 30 November 2020

Place: Canberra

Application for adjournment refused.

The parties are to file any request for procedural orders in application 2020/7056 consequent upon this decision within 7 days.

Mr S. Webb, Member

PRACTICE AND PROCEDURE – applications for review of reconsideration decisions dealing with compensation claims in respect of psychological injuries - applications listed for hearing – new application for review of a reconsideration decision dealing with compensation claims in respect of psychological and right shoulder injuries – application for adjournment and for new application to be joined – applicable principles – relevant considerations – General Practice Direction applied – application refused

Administrative Appeals Tribunal Act 1975, ss 2A, 33

Safety, Rehabilitation and Compensation Act 1988, ss 14, 16, 19, 29

Jago v District Court of NSW [1989] HCA 46

Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718

Site Skills Group Pty Ltd v Administrative Appeals Tribunal  [2019] FCA 1970 

Telstra Corporation Ltd v Hannaford [2006] FCAFC 87

REASONS FOR DECISION

Mr S. Webb, Member


30 November 2020

1. Alison Haberecht sustained shoulder and psychological injuries for which Comcare^[1] accepted liability. She claimed and was paid compensation for incapacity and medical treatment expenses. After some time, she claimed compensation in respect of a further psychological injury, which Comcare refused. In different decisions, further claims in respect of her accepted injuries were also refused. Ultimately, this resulted in 6 applications for the Tribunal to review reconsideration decisions.
2. Initially 3 applications for review were lodged in 2018 (2018/1924, 2018/2400 and 2018 6319) and a further 2 applications were lodged in 2019 (2019/0425 and 2019/5074) (the 5 applications).
3. It is important to note that each of these applications related to psychological injury claims:

(a) Applications 2018/1924, 2018/2400 and 2018/6319 relate to Ms Haberecht’s accepted psychological injury and decisions denying compensation claims in respect of medical treatment expenses under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act);

(b) Application 2019/0425 relates to Ms Haberecht’s accepted psychological injury and a decision denying present liability under s 16, s 19 and s 29 of the SRC Act;

(c) Application 2019/5074 relates to a decision denying liability under s 14 of the SRC Act for a claimed psychological injury in 2017.

4. The decisions made under s 16 of the SRC Act are in respect of medical treatments obtained in the period from January to August 2018. The decision made under s 19 of that Act is in respect of claimed incapacity from 6 August 2017 to 15 March 2018. The decision under s 29 does not relate to a claim and is not pressed.
5. Materials addressing the substantive issues raised in these decisions, including expert psychiatric reports, were filed by the parties and, over a lengthy period, the applications progressed through the Tribunal’s conference and pre-hearing processes.
6. On 3 April 2020, Ms Haberecht’s lawyer foreshadowed intention to make a further claim under s 19 of the SRC Act in relation to her right shoulder injury in 2008, and sought release from the implied undertaking applying to documents produced under summons in the proceedings, noting that the matters before the Tribunal at that time did not relate to a question under the SRC Act in relation to the shoulder.
7. In July 2020, the parties provided hearing certificates and the 5 applications were listed for hearing on 15 to 18 December 2020.
8. On 15 September 2020, the ACT’s lawyer sought release from the implied undertaking applying to documents produced under summons for the purposes of assessing a claim by Ms Haberecht in respect of another shoulder injury in December 2019.
9. On 12 November 2020, I conducted a pre-hearing telephone directions hearing. In the course of this hearing counsel for Ms Haberecht, Jamie Ronald, informed me that notice of a new reconsideration decision had been received shortly before the directions hearing. Mr Ronald advised that this decision denied compensation claimed in respect of Ms Haberecht’s accepted injuries and would be the subject of an application to the Tribunal for review. Mr Ronald also foreshadowed an application for adjournment of the December hearing would be made.
10. In the circumstances, I held over the hearing to allow the parties time to consider the recent developments and their respective positions. The matter was set down for an interlocutory hearing.
11. On 13 November 2020, Ms Haberecht lodged a 6th application for review of a decision of the ACT dated 6 November 2020 – application 2020/7056 (the 6^th application). The impugned reconsideration decision affirmed a primary determination on 12 October 2020 that –

(a) rejected Ms Haberecht’s 8 July 2020 psychological injury compensation claims for incapacity and medical treatment expenses in the period from 10 January 2017 to 28 July 2017 under s 16 and s 19 of the SRC Act; and

(b) rejected Ms Haberecht’s 15 May 2020 right shoulder injury compensation claim in respect of incapacity from 28 September 2018.

12. On 16 November 2020, Ms Haberect’s lawyer applied for adjournment of the December hearing.
13. A brief report by Michelle Gee, Ms Haberecht’s treating psychologist, dated 13 November 2020, was filed in support of the adjournment application.
14. On 23 November 2020, counsel for the ACT, Sarah Wright, provided written submissions opposing the adjournment application.
15. I heard the parties on these matters at the interlocutory hearing.
16. Ms Haberecht argues that the adjournment should be granted and the 6th application should be joined for reasons relating to her psychological health and efficiency, and because the applications involve common issues and facts. In her submission, when all relevant factors are weighed in the balance, the fair, just and convenient result is that the adjournment should be granted and the 6^th application joined. She asserts that the following considerations must be weighed.
17. Firstly, the evidence of Ms Gee raises the possibility that a single hearing would be beneficial to Ms Haberecht’s psychological health, whereas facing the prospect of being cross-examined twice, in 2 separate hearings, may be detrimental to her psychological health. In Ms Haberecht’s submission, this is good reason for granting the adjournment and joining the 6^th application: it is an exceptional circumstance, far removed from the ordinary course, and it is a powerful factor that weighs heavily for adjourning the December hearing..
18. Secondly, should the adjournment application be refused, Ms Haberecht will be required to give evidence twice, traversing periods in time and circumstances that are common to all the applications before the Tribunal. In her submission, this is undesirable as it will result in duplication and, where issues of credit arise, may give rise to unfairness.
19. Thirdly, as there are common issues and facts in the six applications before the Tribunal, these should be considered together. This is especially so as Ms Haberecht’s right shoulder injury interacted with her psychological condition in a manner that caused incapacity for work during periods the Tribunal must consider.
20. Fourthly, while there will be some delay should the applications be joined and the adjournment granted, the delay is justified in the circumstances. In Ms Haberecht’s submission, this will not cause prejudice or unfairness to the ACT and none has been asserted.
21. Fifthly, if the adjournment is granted and applications are joined, this will result in fewer hearing days than running two hearings. In Ms Haberecht’s submission, the increased cost of running two hearings weighs in favour of joining all the applications and adjourning the December hearing, thereby enabling all matters to be dealt with efficiently in one hearing.
22. Lastly, Ms Haberecht foreshadowed that a further decision is pending in respect of her compensation claim in respect of a left shoulder injury. She argues that should this be refused and result in another application to the Tribunal for review, it, too, should be joined - granting the adjournment sought will enable this to occur.
23. The ACT demurs and argues that there is no good reason to adjourn the December hearing.
24. The ACT argues that the report of Ms Gee does no more than suggest that two hearings may be more stressful and may have a greater impact on Ms Haberecht’s psychological condition than a single hearing - Ms Gee does not suggest that Ms Haberecht is psychologically unfit or unable to participate in the December hearing as well as a later hearing in the 6th application, should that be necessary. Rather, the ACT points to a medical certificate of Dr Chan (dated 26 October 2020) in which the doctor certifies that Ms Haberecht is fit to work “Pre injury hours on light duties, 30 hours per week”^[2] with workplace adjustments, but makes no reference to any psychological symptoms or related incapacity. The ACT observes, furthermore, that Ms Gee’s report does not address any deleterious effect on Ms Haberecht’s psychological condition that may stem from longer, more complex cross examination that would be required in a single hearing, or from an extensive delay in having the applications that are presently listed for hearing resolved by the Tribunal.
25. In the ACT’s submission, Ms Haberecht is no different than many Tribunal applicants with psychiatric conditions in the compensation jurisdiction who find preparing for a hearing and undergoing cross-examination stressful. The ACT argues that Ms Haberecht’s circumstances are not unusual, and the clear intent of the Tribunal’s General Practice Direction in respect of adjournments should not be departed from on such unexceptional grounds.
26. The ACT asserts that granting an adjournment in such circumstances may be unfair to others where the Practice Direction provisions regarding adjournments have been adhered to and applied. Furthermore, should an adjournment be granted, s 4.42 of the Practice Direction, which requires prompt relisting within 4 days, could not be applied in the circumstances and an open-ended delay would result. In the ACT’s submission this is very far removed from the intention and plain terms of the Practice Direction.
27. The ACT considers that the 5 applications listed for hearing in December 2020 require different evidence than the recently lodged 6th application. The proposition pressed is that the 5 applications turn on evidence, including expert evidence, addressing Ms Haberecht’s psychological symptoms and her psychiatric condition at relevant times, whereas the 6^th application includes claims of a physiological nature involving her right shoulder, which will require orthopaedic medical evidence that is not otherwise required when dealing with the applications presently listed for hearing.
28. Insofar as the 6^th application includes claims made under s 16 and s 19 of the SRC Act in respect of Ms Haberecht’s accepted psychological injury, the ACT suggests, and Ms Haberecht agrees, that these could be dealt with on the present evidence filed in the 5 existing applications. While the claims relate to a period in 2017 preceding that traversed by the 5 applications listed for hearing, the present medical and expert evidence is sufficient for the purposes of review.
29. Unwarranted delay, the ACT asserts, is not consistent with the statutory objectives of the Tribunal or with the manner in which the Tribunal’s procedural power should be exercised. Furthermore, as the adjournment application is within 3 weeks of the listed hearing, the ACT suggests that should the adjournment be granted, in all likelihood, the Tribunal would not be able to relist another application for hearing on those days, thereby depriving other parties of that opportunity. Furthermore, in those circumstances, further hearing dates would be required in 2021, again denying others an opportunity to have applications listed on those dates. This, the ACT argues, would not be fair to those other parties.
30. Essentially, there is much agreement between the parties about the principles that should be applied, and the relevant considerations, when deciding an application of this kind.
31. The objectives set out in s 2A of the Administrative Appeals Tribunal Act 1975 (AAT Act) are to the point –

In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision‑making of the Tribunal.

32. These objectives provide guidance when applying the procedural power of the Tribunal set out in s 33(1) of that Act which provides –

In a proceeding before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

33. The Tribunal’s General Practice Direction is made by the President under s 18B of the AAT Act. Failure to adhere to provisions of the Direction does not invalidate action taken. Moreover, under s 1.4 of the Direction, the procedures directed may be altered to suit individual applications. The Direction includes the following provisions -

• 4.38 We will not adjourn a hearing date unless there are good reasons to justify the adjournment. In general, the following matters are not, of themselves, sufficient reasons for an adjournment to be granted:

(a) the unavailability of counsel; or

(b) the consent of the other party.

• 4.39 Any application for an adjournment must be made at the earliest possible opportunity. It must:

(a) be in writing addressed to the District Registrar;

(b) include the reasons for seeking an adjournment;

(c) be signed by you or the decision-maker; and

(d) be accompanied by any documents that support the application.

• 4.40 An application for adjournment will usually be considered by the presiding member.

The member will usually hold a directions hearing to consider the application either in person or by telephone and you and the decision-maker must attend.

• 4.41 We will not grant an application for an adjournment made less than ten working days before the hearing unless there are particular and compelling reasons for the hearing to be adjourned. An application made on the day of a hearing, even when advance notice has been given, will not be granted unless there are exceptional reasons.

• 4.42 If we grant an adjournment, we will re-list the case as soon as possible. Unless we direct otherwise, you and the decision-maker must give us the information about your availability and the availability of any witness within two working days of the adjournment being granted. A new hearing date will be given by the Registry within two days after we receive the information from you and the decision-maker.
• 4.43 If we can make a costs order in the case, we may take into account any relevant matters relating to adjournments in any decision on costs.

34. It is with these statutory provisions and directions in mind that the determination of a ‘just and convenient’^[3] result must be made, ensuring that the proceedings are conducted ‘fairly and justly’^[4].
35. The proposition that adjournment is necessary to avoid two hearings appears to me to be somewhat speculative. The recent application for review has not yet been subject to close consideration within the Tribunal’s conference and alternative dispute resolution processes and, at this time, it is far from clear that it will proceed to a hearing. A speculative argument of this kind is not firm ground on which to base an application for adjournment. Nevertheless, I will address the matters agitated by the parties.
36. There is no evidence that Ms Haberecht is psychologically unfit to participate in a hearing or to undergo cross-examination. Under Dr Chan’s medical certificate of 26 October 2020, Ms Haberecht has work restrictions as a result of a left shoulder injury (which is subject to claim and not before the Tribunal). The doctor makes no reference to any psychological symptoms or any psychological cause of incapacity. This notwithstanding, I accept that Ms Haberecht’s psychological history of injury and mental illness renders her susceptible to experience psychological stress. I also accept Ms Gee’s report that preparing for hearing and undergoing cross examination may impact upon this, and that a single hearing may be beneficial to Ms Haberecht.
37. Ms Gee does not discuss any effect on Ms Haberecht’s psychological health that may result from increasing the likely duration and complexity of cross-examination in a single hearing, or any effect of delaying the hearing and resolution of the 5 applications should an adjournment be granted. There are many examples in Tribunal cases of psychologically unwell parties requiring breaks, even very lengthy breaks, in the conduct of a hearing in order to safely manage psychological stress or related symptoms, such as loss of concentration or diminished memory, and assist the person to give their evidence in full. Without Ms Gee addressing such matters, it is difficult to evaluate her report and assess the impact of the posited hearing options on Ms Haberecht’s mental health. That said, insofar as Ms Gee’s report implies a risk to Ms Haberecht’s mental health should the adjournment not be granted, I accept that there may be some degree of risk; but the level of risk is not established and, moreover, the present evidence does not establish that a deleterious impact on Ms Haberecht’s psychological condition is probable should the adjournment application be refused.
38. Insofar as Ms Haberecht could be expected to give evidence in two hearings, should the adjournment not be granted, and there may be some overlap in the periods of time and the circumstances about which her evidence would be required, subject to what I have said about the difficulty evaluating Ms Gee’s report, this may weigh for granting the adjournment sought. I am concerned, however, about the lack of psychological evidence regarding the effect a longer, more complex cross-examination might have on Ms Haberecht’s psychological condition. While the Tribunal is capable of adopting a flexible approach to assist her giving evidence, such as taking breaks when required for example, this may extend the period of the hearing and any attendant difficulties for Ms Haberecht – the degree of difficulty is proportionate to the nature and complexity of the matters to be traversed in cross-examination and its duration.
39. I was informed by Ms Wright that there is no dispute about the causes of Ms Haberecht’s psychological injury for which liability was accepted in 2013 and no contrary findings are sought, such as those considered in Telstra Corporation Ltd v Hannaford.^[5] Ms Wright also informed me that no issue is taken with Ms Haberecht’s credit – her oral evidence will involve testing factual matters relating to symptoms. That being so, there is no need to say anything about unfairness that may arise in the contrary case where the credit of a witness might be assessed twice on common facts and similar evidence.
40. Insofar as there are common facts between the 5 applications listed for hearing in December and the 6^th application, it can be accepted that it may not be efficient or desirable to traverse the same ground twice in separate hearings. Factual findings made by the Tribunal on evidence in one hearing may be adopted in another hearing involving the same parties on the same evidence. To the extent the 6^th application involves claims of a physiological nature relating to Ms Haberecht’s right shoulder injury, it is clearly separate and distinguishable from the 5 applications presently listed to be heard in December. While part of the 6^th application involves incapacity and medical treatment expense claims relating to Ms Haberecht’s psychological injury, I accept that this may be dealt with without additional medical or expert evidence. That being so, that issue may be severable and there is no bar to related factual findings being made by the Tribunal in the December hearing.
41. Presently, I do not need to go any further on the point of severability. If application is made for part of the 6^th application to be severed and dealt with in the context of the December hearing, it can be dealt with at that time or at the outset of the December hearing.
42. Adjourning the December hearing will result in delay of many months resolving the 5 applications. No issue of prejudice against the ACT has been asserted. Nevertheless, some of the 5 applications have now been on foot in the Tribunal for well in excess of 2 years. Even without further delaying the hearing and resolution of these applications, the mechanism of review thus far has not been “quick”. I accept that there may be good reasons for the time taken preparing these applications for hearing, and I make no criticism in that regard. Nonetheless, further delay in such circumstances would need to be justified by exceptional or compelling circumstances. I am not persuaded that the circumstances raised in support of the adjournment application are either exceptional or compelling or sufficient to outweigh countervailing factors.
43. Like any party, the ACT is entitled to expect the Tribunal to be mindful of its statutory objectives and to exercise its procedural power under s 33(1) to ensure that applications are heard and reviews are completed with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit. The truism that Brennan J discussed in Jago v District Court of NSW^[6] has not diminished with the passage of time and it is apposite here –

20. That is not to say that the courts of this country do not regard speed in the disposition of criminal cases as desirable. To the contrary, it is a truism that justice delayed is justice denied. In Lord Bacon's words (quoted by Dr Kenny, op.cit., p 607) "(j)ustice is sweetest when it is freshest." Therefore, within the limits of their resources, the courts so mould their procedures as to avoid unnecessary delays in the disposition of cases both criminal and civil. But the avoidance of delay in administering justice is not the sole concern of the courts. The courts do not have command of all of the resources which are necessary to secure prompt justice and, if they were to assume a responsibility beyond their capacity, they would offer a hope of protection which they are unfitted to fulfil. The furthest which a court can go is to regulate its procedures to avoid unnecessary delay, to do what can be done to achieve fairness in a trial and to prevent the abuse of its process.

44. The delay that will result if the adjournment is granted will impede completion of reviews in the 5 applications presently set down for hearing in December, in effect denying the parties decisions in those applications for a further unspecified period of time that may stretch for many months. While Ms Haberecht may consider this to be desirable for the reasons outlined, the ACT does not, and the finality it reasonably seeks weighs against grant of the adjournment sought.
45. The proposition that a single hearing would be more efficient and less costly than two separate hearings is drawn from assumptions about the nature, complexity and duration of each hearing. These are far from clear. Presently, the December hearing is listed for 4 days. The ACT asserts that it may be completed in 2 days as no expert evidence is required. Ms Haberecht disagrees and maintains that the hearing may be completed in 3 days as expert evidence is necessary. Similar arguments might arise, as they commonly do in compensation cases, in respect of any hearing in the 6^th application. Any efficiency that may be gained by preparing for a single hearing may well be offset by the requirement to traverse a broader span of issues. The same may be said in respect of hearing time required to adduce oral evidence. Nevertheless, it can be accepted that more time and increased costs might arise should two hearings be required and the evidence, issues or facts dealt with in the first hearing are duplicated to some degree in the other. Clearly enough, as I have already said, considerations of this kind in respect of a separate hearing in the 6^th application are somewhat speculative.
46. The same can be said about the prospect of a further application for review being made by Ms Haberecht in respect of a claim that is still being considered.
47. Weighing all these factors and the matters raised by the parties in submissions, and considering the applicable principles, I am not persuaded that it is appropriate to grant the adjournment sought in all the circumstances. Simply put, the application for adjournment is not sufficiently made out to justify delaying resolution of the 5 applications and departing from the Tribunal’s Practice Direction in an open-ended way.
48. Insofar as Ms Haberecht’s mental health is concerned, as I have said, the Tribunal is capable of adopting a reasonable and flexible approach when taking her evidence, being mindful of her psychological condition and the matters raised by Ms Gee.
49. I am satisfied that it is fair, just, convenient and preferable for the 5 applications to be heard in December, as listed. The 6^th application should not be joined with the 5 applications and it should proceed in the usual manner, subject to any orders that the parties may request or that might be desirable to minimise duplication of evidence and fact finding with the 5 applications. On this point, the parties will have 7 days in which to request procedural orders relating to the 6^th application. For the avoidance of doubt, this includes any request for part of the 6^th application to be severed and dealt with in the December hearing.

Decision

50. The application for adjournment is refused.
51. The parties are to file any request for procedural orders in application 2020/7056 consequent upon this decision within 7 days.

........................................................................
Associate

Dated: 30 November 2020

^[1] In April 2019, under licence from Comcare, the ACT took over responsibility for compensation cases in its jurisdiction.

^[2] Medical certificate of Dr Chan, 26 October 2020, page 2.

^[3] Reading Australia Pty Ltd v Australasian Mutual Provident Society [1999] FCA 718 at [9].

^[4] Site Skills Group Pty Ltd v Administrative Appeals Tribunal [2019] 1970 at [36].

^[5] [2006] FCAFC 87

^[6] [1989] HCA 46, per Brennan J at [20].