Michael De Marco and Comcare [1996] AATA 339 (1 October 1996)

ADMINISTRATIVE APPEALS TRIBUNAL

MICHAEL DE MARCO V. COMCARE
No. A96/241
AAT No. 11291
Number of pages - 9

COURT

ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
PJ BAYNE (Senior Member)

CATCHWORDS

Safety Rehabilitation and Compensation Act 1988 (Cth) ss 57, 60(1), 62
Administrative Appeals Tribunal Act 1975 (Cth) ss 25,33,43

Re Bessell and Telstra Corporation Ltd (1994) 20 AAR 382 considered
Re Swierkowski and Telstra Corporation Ltd (1993) 32 ALD 194 considered

Re Pepper and Comcare (AAT 10339; 4/8/95) considered
Re Devi and Comcare (AAT 11113; 29/7/96) considered
Re Health Insurance Commission and Hobbes [1990] AATA 186; (1990) 12 AAR 285

followed
Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1983) 3 ALD 88 considered

Re Hebbard and Comcare (AAT 9902; 13/12/94) considered
Re Cranch and Comcare (AAT 10066; 24/2/95) considered
Re Kiazim and Commonwealth (1986) 9 ALN N218 considered
Re Williams and Comcare (AAT 10791; 23/2/96) considered
Re Daniel and Department of Defence (AAT 9560-9562; 21/6/94)

considered

Re Britton and Department of Defence (AAT 9676; 18/8/94) considered
Re Duncan and Defence Force Retirement and Death Benefits Authority

[1980] FCA 58; (1980) 3 ALD 113 considered

Re Qantas Airways Ltd and DCT (WA) (1979) 2 ALD 291 considered
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 referred

HEARING

CANBERRA, 26 September 1996
1:10:1996

Counsel for the Applicant: Mr Sheils QC

Solicitor for the Applicant: Scott Sheils and Glover

Counsel for the respondent: Mr D'Amico

Solicitor for the Respondent: Phillips Fox

ORDER

The tribunal declines to make the direction sought by the respondent, and decides that the decision of the respondent on 26 September 1996, that the applicant attend a medical examination by Dr Keiller on October 2 1996, is revoked.

DECISION

PJ BAYNE On 26 September 1996, the respondent requested the tribunal to direct that the applicant attend a medical examination by an orthopaedic surgeon Dr Keiller, on October 2 1996. The respondent directed the applicant to attend the appointment pursuant to s57(1) of the Safety Rehabilitation and Compensation Act 1988 (the Act). The applicant's solicitors had notified the respondent on 24 September 1996 that they intended to advise their client not to attend and on the same day the respondent applied to the tribunal for a directions hearing. Section 57(1), (2) and (3) provide as follows:

57.(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 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.

2. At the directions hearing to determine this matter, Mr Sheils QC of Scott Sheils and Glover appeared for the applicant, and Mr D'Amico of Phillips Fox appeared for the respondent. The tribunal had before it the documents lodged pursuant to s37 of The Administrative Appeals Tribunal Act 1975 (the T-documents) and the respondent's written submissions (MFI 1), the respondent's schedule of correspondence (MFI 2) and a list supplied by the applicant of the medical practitioners seen by the applicant (MFI 3).

3. The respondent submitted that the tribunal had the power to make such a direction and in this regard relied on Re Bessell and Telstra Corporation Ltd (1994) 20 AAR 382. They argued that it would be a denial of natural justice to the respondent if the applicant was not directed to attend and that the tribunal may benefit from the medical examination because of a conflict of medical opinion in relation to a material question of fact in the matter.

4. The applicant's solicitors submitted that there had to come a point when the respondent should not require the applicant see another doctor. The applicant had seen 17 doctors and it was not reasonable for the applicant to see a new doctor. It seems, however, that the while the applicant has attended on 17 doctors, three of these have been for radiology and only about eight have undertaken examinations of the applicant for preparation of a report. The applicant's solicitors also argued that the tribunal must take into consideration the cost to the applicant should he require a new doctor for cross-examination in the hearing. To this point, the tribunal suggested that the respondent might be prepared to give an undertaking to bear any costs incurred by the applicant should the new doctor be cross-examined. Such an undertaking has been given.

5. The applicant submitted that inasmuch as s57(1) of the Act provides that the respondent can require an employee to undergo a medical examination by "one legally qualified medical practitioner" (emphasis added), the tribunal cannot make the direction sought by the respondent. These words were inserted by s5 of Division II of the Industrial Relations Legislation Amendment Act (No 3) 1991-1992 (Commonwealth). In Re Swierkowski and Telstra Corporation Ltd (1993) 32 ALD 194 at 201 the tribunal held that the effect of the amendment was to empower the relevant authority to direct the claimant "to attend before one legally qualified medical practitioner. Once that power has been exercised the tribunal, standing in the shoes of the respondent, does not have the power to direct any further medical examinations." On the other hand, in Re Bessell and Telstra Corporation Ltd (1994) 20 AAR 382, the tribunal accepted that s57 confines the power of the relevant authority to requisition a medical examination by one medical practitioner as opposed to examination by a panel of practitioners, and that it does not place a limit on the number of examinations which can be required. This interpretation was followed by Senior Member Beddoe in Re Pepper and Comcare (AAT 10339; 4/8/95) and by Deputy President Chappell in Re Devi and Comcare (AAT 11113; 29/7/96).

6. It should be noted in passing that in Re Devi, the applicant sought a directions hearing in relation to the admissibility of medical testimony obtained as a result of the applicant having been examined by a panel of medical practitioners. The tribunal held that s57(1) would not have justified a direction that the applicant be examined by a panel. But it also found that no such direction had been given, and thus there was no basis on which to argue that the evidence was not admissible. The circumstances showed that the respondent was merely exercising its right to acquire the best available evidence to support its case consistent with common law principles and s39 of the Administrative Appeals Tribunal Act 1975. The applicant was represented and no objection had been taken to the request for examination, in which request s57 had not been mentioned. The tribunal also made observations concerning the result in a situation where there had been an unlawful direction given under s57(1). But for other reasons it is not clear whether the tribunal has the power to make the direction sought by the respondent. In Re Health Insurance Commission and Hobbes [1990] AATA 186; (1990) 12 AAR 285 Deputy President Todd had no doubt, for he found "it quite clear that the Tribunal has the power conferred on Comcare by s57 of the (Commonwealth Employee's Rehabilitation and Compensation Act 1988 (Cth)), and that it should exercise it in a proper case" (at 287). In this respect, Mr Todd cited Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1983) 3 ALD 88, where the then President, Davies J, said that s43 of the Administrative Appeals Tribunal Act 1975:

...is not concerned to confer upon the Tribunal authority to limit
its function but rather to confer upon it an amplitude of powers
so that the Tribunal may exercise, if it is convenient and useful
to do so, not only the decision-making power upon which the
decision-maker relied, but all relevant powers and discretions
which were conferred by the enactment upon the decision-maker.

7. In Re HIC and Hobbes the tribunal was concerned with an application by the employer, the Health Insurance Commission, for review of a decision of Comcare that the employee was entitled to compensation for a generalised anxiety disorder. It sought a direction from the tribunal requiring the employee to attend for examination by a psychiatrist and a psychologist to be chosen by the applicant. The tribunal held that natural justice required that the applicant be afforded the opportunity for the employee to undergo a medical examination by "a legally qualified medical practitioner" (which embraced a psychiatrist but not a psychologist) and made a direction accordingly.

8. In Re Hebbard and Comcare (AAT 9902; 13/12/94), the tribunal dealt with an application by Comcare that the tribunal stay the proceedings for the reason that the applicant had failed to attend a medical examination as directed by Comcare pursuant to s57(1). The tribunal made a direction to stay the proceedings before the tribunal pursuant to s57(2). Senior Member Beddoe pointed out that the applicant had not offered any excuse for his non-attendance. The tribunal cited Re HIC and Hobbes for the proposition that the tribunal had jurisdiction to direct a medical examination pursuant to s57(1). In Re Cranch and Comcare (AAT 10066; 24/2/95) Senior Member Beddoe heard a similar application but found that in all the circumstances the Comcare request was unreasonable and that the applicant was entitled to not comply with that request.

9. Further support for the proposition that the tribunal may exercise the power in s57 is found in Re Bessell. In that case the tribunal accepted the correctness of the respondent's assertion (at 383) that

the respondent has an entitlement pursuant to Section 57(1) to
direct, or request the Tribunal to direct, the applicant to attend
medical appointments... (emphasis added).

10. The tribunal did not have to rule on a submission (based on Re Kiazim and Commonwealth (1986) 9 ALN N218) that there was sufficient power under s33 of the Administrative Appeals Tribunal Act for the tribunal to direct the applicant to attend the appointments in question. It should be noted, however, that in Re HIC and Hobbes (above at 287) it was doubted whether s33(2) on its own would support the making of such a direction.

11. On the other hand, in Re Williams and Comcare (AAT 10791; 23/2/96), Senior Member Barbour in oral reasons for declining to make an order to suspend the applicant's rights under the Act stated that:

...I have some trouble with section 57. The reason I have
trouble with section 57 is firstly its location in the Act. It
clearly, when you look at the index of the Act and you look at
the Parts of the Act, comes within the part which deals with
claims for compensation. It does not come within the part which
deals with reconsideration and the review of determinations. It
clearly throughout its terminology relates to circumstances where
Comcare is considering someone's claim(ed) needs to obtain
medical examinations.
It contemplates a period prior to reconsideration in much of the
language of the section, particularly in relation to subparagraph
(vi) which clearly would not make any sense if it were done in a
period of the matter before the proceedings at the Tribunal.
However, the difficulty with not taking a view that it applies of
course means that we cannot deal with section 57(2) which uses
the word "proceedings" and which are (sic) only used in the
context of the AAT review. They are defined within Part VI and
the word "proceedings" only contemplates a claim once at the
Tribunal and once before the Administrative Appeals Tribunal.

12. But Senior Member Barbour, accepting Re Bessell, made his decision on other grounds (see below). He added that "section 57 appears to be particularly poorly drafted and is trying to do a number of things in the guise of one section in one Part...".

13. In contrast to these cases stands Re Daniel and Department of Defence (AAT 9560-9562; 21/6/94) in which the tribunal accepted the respondent's submission that as decisions relating to s57 are not included in the list of determinations in s60(1), the tribunal did not have jurisdiction to review the respondent's decision to have an applicant medically examined, (and thus did not have the jurisdiction to review the respondent's decision not to provide reasons for its decision to have the applicant medically examined). The tribunal did not accept the applicant's submission that the decision was reviewable pursuant to ss 3, 25 and 29 of the Administrative Appeals Tribunal Act.

14. This decision was followed in Re Britton and Department of Defence (AAT 9676; 18/8/94) where the tribunal was asked to review a decision rejecting the applicant's claim for reimbursement of the cost of a return airfare to Australia for the purpose of undergoing a medical examination. The tribunal found that there was a clear legislative intention that the tribunal had no jurisdiction to review determinations made under s57 of the Act.

15. There does not appear to be any tribunal decision which has to date reviewed the decisions analysed above. This is no doubt due to the fact that the tribunal is called upon to deal with these questions at very short notice. Similarly, I am called upon to make a direction at very short notice, and in a situation in which neither party canvassed the earlier decisions of this tribunal. Compounding the difficulty is the fact that, as Senior Member Barbour has pointed out, the drafters of s57 have employed language which is bound to create confusion.

16. I will state my conclusions shortly. I have taken into account the earlier tribunal decisions and fundamental elements of the schemes of both the Safety Rehabilitation and Compensation Act 1988 (the Act) and the Administrative Appeals Tribunal Act 1975.

17. In any proceeding in relation to a decision which is reviewable under s 60(1), the tribunal may, where appropriate, make a decision under s57 of the Act. It may do so by virtue of s43 of the Administrative Appeals Tribunal Act; (see Re HIC and Hobbes). Where the tribunal makes such a decision it is, however, to be taken as a decision of the relevant authority; see s43(6). (Thus, in terms of s57(3), it is the relevant authority who pays for the costs of conducting the examination.)

18. In cases where there has not been to the date of the tribunal decision under s57 a relevant decision under s57 by the relevant authority, there is no problem with s57(2). Where, however, there has been such a decision by the relevant authority, s57(2) applies unless and until the tribunal makes a decision which supplants that of the relevant authority. That might be a decision to revoke or vary the decision of the relevant authority, or one in the same terms as that of the relevant authority.

19. It might be argued that this analysis flies in the face of s60(1) of the Act. A decision under s57 is not a "determination" as defined in s60(1), and thus could not be the subject of a "reviewable decision" as defined in s60(1) (and see s62). It might be said that in accordance with basic principle, as stated in decisions such as Duncan v Defence Force Retirement and Death Benefits Authority [1980] FCA 58; (1980) 3 ALD 113 and Re Qantas Airways Ltd and DCT (WA) (1979) 2 ALD 291, the tribunal has no power to make decisions which in substance if not in form amount to a review of a decision by a relevant authority under s57. Those decisions reflect the principle that the power of the tribunal to review certain decisions made in respect of some subject matter or situation does not carry with it the power to make any other kind of decision which the primary decision-maker might make with respect to that subject matter or situation.

20. I think however that there is a way past this difficulty. Where the tribunal exercises the power in s57 of the Act it will do so for the purpose of reviewing another decision which is a "reviewable decision" as defined in s60(1) (the "substantive decision"). In this situation, s43(1) of the Administrative Appeals Tribunal Act enables the tribunal to exercise the power in s57, and to this extent the definition of "reviewable decision" in s60(1) is not an exhaustive statement of the extent of the tribunal's powers under the Act. Section 43(1) provides inter alia that "for the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision..." (emphasis added).

21. There is, however, another problem in an approach which holds that the tribunal may exercise the power in s57 where the relevant authority has exercised that power in a way which is either inconsistent or consistent with a decision which the tribunal is asked to make under that power. The problem arises where it is argued that the employee has refused or failed "without reasonable excuse" to attend an examination. Where the employee so refuses or fails, s57(2) provides that "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". It might be argued that since the tribunal cannot directly review a decision under s57(1), (which I accept), it cannot determine whether s57(2) applies.

22. The way past this problem is to read s57(2) in a way which leaves the tribunal with jurisdiction to decide if s57(2) does have the effect of suspending proceedings on foot. If it finds that s57(2) does not have this effect, then it may make a decision under s57(1) in substitution for the inconsistent or consistent decision of the relevant authority. Thus, the tribunal could revoke that decision, or make another which varied or was in the same terms as the decision of the relevant authority. Or, it might not make any decision at all, and leave on foot the decision of the relevant authority.

23. This is a possible reading of s57(2) which refers to the suspension of the "employee's rights" (emphasis added) to continue proceedings under the Act. The provision is not directed to the tribunal which conducts the proceedings. Furthermore, on general principle a tribunal has a jurisdiction to decide if it has jurisdiction. This being a possible reading, it is one which should be adopted in order to further the policy of the Act; (see generally Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421-424). In so saying I have in mind that unless the tribunal has jurisdiction to decide whether s57(2) applies, the only means for an employee or employer to challenge a decision of a relevant authority under s57(1) will be by way of judicial review. In most cases it will be an employee who would wish to challenge. The Act is beneficial legislation, and having regard to the fact that it is for the benefit of employees who generally speaking will not have the financial resources to support judicial review application, it might be said that s57(2) should be read so as to avoid the need for an employee to seek judicial review of a decision of a relevant authority under s57(1).

24. Although the issue is one of difficulty, I take this approach. Thus, the tribunal may exercise the power in s57(1) where the relevant authority has exercised that power in a way which is either inconsistent or consistent with a decision which the tribunal proposes to make under that power. This is so even though a relevant authority may argue that s57(2) may apply.

25. It will be relevant for the tribunal to have regard to s57(2) of the Act when it decides whether to exercise the power in s57. In other words, the tribunal would not make a decision under s57 to require the employee to undergo a medical examination where it is of the view that the employee would have a reasonable excuse to refuse to undergo that medical examination.

26. I am aware that this approach will not enable the tribunal to make a decision under s57(1) where the relevant authority has made its decision under that provision prior to the applicant instituting proceedings in the tribunal in relation to a "reviewable decision" as defined in s60(1). In that situation, it would appear that the employee or employer would need to resort to some other means of review of the decision of the relevant authority. I cannot say whether this result was intended, but it points to the need for a close look at s57 by the legislature and those responsible for this legislation.

27. Turning now to this matter, the respondent, Comcare, is in effect asking the tribunal to make a decision under s57 in the same terms as the decision it has made. In substance, the applicant's solicitor argues that it would not be reasonable for the applicant to attend the medical examination, and thus the tribunal should not make the decision sought by Comcare. This is not quite how the parties argued the matter, but approaching it in this way gets to the substance of their positions.

28. The issue of when it would or would not be reasonable for the applicant to attend the medical examination has been addressed in tribunal decisions. In Re Pepper and Comcare (AAT 10339; 4/8/95) the respondent sought a direction from the tribunal that would have had the effect of suspending the proceedings pursuant to s57(2) if the applicant failed to attend a medical examination arranged by the respondent. Senior Member Beddoe stated that:

In the present case the respondent has provided only one reason
for seeking the opinion of Dr Nothling. That reason is the
divergence of views in the existing nine reports. It seems to
me that the concern about the divergence of views will
ultimately be a matter for the Tribunal. In the meantime it is
open to the respondent to seek advice from any of the present
reporters or from any other specialist about these divergent
views. In doing so it would not be necessary for the applicant
to be the subject of a further examination (at para 16).

29. Similarly in Re Williams and Comcare (AAT 10791; 23/2/96) Senior Member Barbour concluded that:

... given the Tribunal's requirement of proceedings being
conducted with as little formality and technicality as possible
and with as much expedition as affords fairness to both parties,
that in general it can be argued that it would be reasonable for
an applicant to refuse to attend an appointment arranged by the
respondent in proceedings where that appointment is with a
second medico-legal specialist of the same speciality as what
has previously been arranged, particularly where there is no
good reason demonstrated to take away the reasonableness of that
excuse as given by the applicant.
I do not consider, given the role of the Tribunal and its
functions as I have indicated, that a further examination to
bolster the case of Comcare is appropriate or reasonable. In
circumstances where further information is necessary to assist
with the case then a follow up report can be obtained from the
doctor of which a report has already been obtained and I cannot
think of many circumstances where a second report from a
specialist of the same specialty would be viewed as being
necessary or helpful to the Tribunal. However, I do not intend
to close the door on that by saying that it would never be
necessary.

Conclusion
30. The difficulty I face is that neither party provided much in the way of analysis of the nature of the medical reports which appear in the T-documents. My review of them suggests that they have been provided by a range of specialists. Some specialists have been engaged by the applicant, some by the respondent, and some appear to have produced a report in response to some other stimulus. In these circumstances, I adopt the sentiment of Senior Member Beddoe in Re Pepper that the divergence of views is for the tribunal to resolve, and that it would not be reasonable for me to require the applicant to attend on examination by another medical practitioner. Accordingly, I decline to make the direction sought by the respondent, and decide that the decision of the respondent on 26 September 1996 that the applicant attend a medical examination by Dr Keiller on October 2 1996 is revoked.