Section 36 Notices.

In this matter Deputy President Gilchrist on 11 August 1997 made Orders referring this dispute for Judicial Determination.

`... whether the Respondent was entitled to invoke section 36(1)(f) of the Act to discontinue the Applicant's weekly payments of income maintenance in accordance with its letter to the Applicant of 18 July 1997'.

When that matter was called on for hearing on 16 October 1997, Counsel for the Compensating Authority advised the Tribunal that he had no witnesses to prove the Compensating Authority's case, i.e. that the Notices were sent etc. Instead the Compensating Authority sought. Further and Better Particulars of the Worker's Defences (even though it had since 14 August 1997 to obtain these and put its house in order).

In the upshot I adjourned the matter to 29 January 1998 for hearing. In hindsight had the Worker been legally represented, an Application to Strike Out the Notice there and then, would probably have been made, and probably would have succeeded.

I acceded to the request of the Compensating Authority that the Worker be ordered to answer a letter seeking Further and Better Particulars of his Defence.

One of the terms of the Order was that the letter of request should reach the Worker by 10 November 1997. The Compensating Authority had almost a month to write the letter - and the Worker was to reply by 28 November 1997.

The Compensating Authority breached that Order. The letter did not arrive until the afternoon of 11 November 1997. No explanation or apology was forthcoming for the Compensating Authority's failure to comply with the Order.

The Worker then applied to have the Section 36 matter struck out. I refused this Application and instead, discharged the Worker from having to answer the letter.

Over the passage of some 7 hearing days, I have attempted to achieve at least some mechanical progress in resolving this matter (bearing in mind that there are a further 42 outstanding claims before the Tribunal, which I estimate will take 6 or 7 sitting days to dispose of). To that end the Worker was persuaded that he should attend (albeit reluctantly) medical examinations arranged by the Compensating Authority conducted by an Occupational Physician - a Psychiatrist and an Orthopaedic Surgeon. The Compensating Authority was to notify the Worker of the dates.

By letter dated 30 October 1997, the Worker was given a choice of 3 dates for the Occupational Physician, Dr. Graham. They were 10 November 1997, 11 November 1997 and 12 November 1997.

The letter, although dated 30 October 1997, did not arrive at the Worker's residence in Morphett Vale until 4.30 p.m. on 11 November 1997 and the day before the last available appointment. Confirmation was sought by the Compensating Authority by 7 November 1997 - 4 days before the letter was delivered.

The second examination was with Dr. W.B. Blakemore on 21 November 1997 at 1.50 p.m. The Worker attended. This is attested to by Dr Blakemore's notation `arrived 21.11.97 - 1.50 pm W B Blakemore'. Dr. Blakemore could not see the Worker because VACC had not confirmed the appointment with him.

As to the examination by the third expert, Dr. Peter Fry, on 1 December 1997, the letter of 30 October 1997 asserted that the medical examination was arranged pursuant to section 36(1) of the Act. That, of course, is incorrect. The examinations were arranged in order that the Worker would put beyond any doubt the fact that he was not breaching mutuality as set out in section 36(1a)a. Section 36(1) does not contain any power to organise a medical examination. Alternatively, the examinations were arranged pursuant to section 53(2) - ie powers ancillary to determining claims (the whole 42).

By letter of 24 November 1997, the Compensating Authority withdrew the reference to section 36(1) and section 38(5) was substituted as the empowering section ie for the purpose of conducting a section 38 review. It does not seem to have been preceded by the statutory notice required by section 38(3). Why this was done is beyond my comprehension. The whole basis on which the Worker was persuaded to attend (in the teeth of his assertion that he has at least a good prima facie defence to the section 36 notice) on what was virtually a without prejudice basis was to enable the real issues of the entitlements under the Act to be decided. There is no question of section 38 being involved. The Worker refused to attend an examination arranged on that basis.

To have mismanaged the first appointment - to quote Oscar Wilde - is unfortunate. To have mismanaged the second is negligent. The Compensating Authority has provoked outrage by mismanaging the third.

When the matter came on at my behest for a Directions Hearing on Monday, 1 December 1997, Mr. Luke for the Corporation firstly indicated that the reference to section 38 in the correspondence was without foundation and that the medical examinations were arranged pursuant to section 53.

Secondly, Mr. Luke indicated that the section 36 Notices of 18 July 1997, would be withdrawn on the basis that the Worker would attend an appointment with Dr. Peter Fry on 2 December 1997.

In the upshot, by consent, I make the following Orders:-

(1) the section 36 Notices of 18 July 1997 are set aside.

(2) the hearing date of 29 January 1998 is vacated.

(3) I note that the medical appointment for an examination pursuant to section 53(2) has now been arranged with Mr. Peter Fry, on Tuesday, 2 December 1997, at 2.00 p.m.

This disposes of the reference in paragraph B of matter No. 1623/1997.

Parties are advised that if a party wishes to appeal against any part of this decision which raises a question of law such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.