2. The hearing dates commencing on 14 July 2025 are vacated.

3. The s 86(4) and s 88 referrals are referred for a conciliation conference by the Deputy Registrar or his delegate pursuant to Division 2 of Part 5 of the Workers Rehabilitation and Compensation Act 1988 at the earliest convenient date to be determined by the Deputy Registrar or his delegate.

4. The worker has leave to attend the conciliation conference remotely.

5. In the event that the referrals are not resolved at the conciliation conference the s 86(4) and s 88 referrals are to be listed for hearing for 4 days commencing at 10am on a date to be determined by the Registry.

Workers compensation - Application to dismiss referral - Application to adjourn hearing

Workers Rehabilitation and Compensation Act 1988;

Tasmanian Civil and Administrative Tribunal Act 2022

PNJ v The Queen [2009] HCA 6;

Gulf Industries Pty Ltd and Mmi Insurances Ltd v Gregory Ernest Barnett [1996] TASSC 75;

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16;

Higgins v Orchard [2021] TASSC 44;

Webb v Kingborough Council [2024] TASCAT 108;

Kioa v West [1985] HCA 81;

Minister for Immigration and Border Protection v SZMTA [2019] HCA 2

The decision has been anonymised for the purpose of publication.

1. A referral made by the worker under s 86(4) of the Workers Rehabilitation and Compensation Act 1988 (the WRC Act) and a referral by the employer under s 88 of the Act have been listed for hearing to commence on 14 July 2025.
2. The worker has applied for summary dismissal of the s 88 referral. The application is opposed by the employer.
3. The employer has applied for an adjournment of the hearing. The application is opposed by the worker.

1. It is convenient to deal with the application to dismiss first.
2. The worker's application cites s 89(1)(b) of the Tasmanian Civil and Administrative Tribunal Act 2022 (the TASCAT Act), which relates to proceedings which are an abuse of process. A proceeding which is an abuse of process may be dismissed under s 89 (2). Section 89(1) and(2) provide:

(1) This section applies if the Tribunal believes that a proceeding or a part of a proceeding -

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

(2) If this section applies, the Tribunal may order that the proceedings, or the part of a proceeding, be dismissed or struck out and may make any related or ancillary order.

1. As to what might amount to an abuse of process, in PNJ v The Queen [2009] HCA 6 the Court said at [3]:

It is not possible to describe exhaustively what will constitute an abuse of process. It may be accepted, however, that many cases of abuse of process will exhibit at least one of three characteristics:

(a) the invoking of a court's processes for an illegitimate or collateral purpose;

(b) the use of the court's procedures would be unjustifiably oppressive to a party; or

(c) the use of the court's procedures would bring the administration of justice into disrepute. (Authorities omitted)

1. The worker is critical of the conduct of both the employer and its insurer. The insurer is not a party to the proceedings, but is conducting them under its right of subrogation. For convenience I will refer to both the insurer and the employer simply as the employer.
2. In the application the Worker says that an independent medical review was arranged by the employer with Dr Derek Lee. She says that Dr Lee lacks accreditation by the WorkCover Board and so was not authorised to undertake the examination, and that the resulting s 86(1)(c) certificate is invalid.
3. Under s 90A(1) and (2) of the WRC Act a worker may be required by an employer to undergo an examination by a medical practitioner who has expertise in a field relevant to the worker's injury. Pursuant to s 3 of the Act a medical practitioner is "a person registered under the Health Practitioner Regulation National Law in the medical profession". The worker has not put Dr Lee's registration in issue. The medical practitioner is not required under the Act to be accredited by the WorkCover Board.
4. The s 86(4) referral challenges the termination by the employer of the worker's weekly payments of compensation in reliance on a certificate under s 86(1)(c) by Dr Lee. There is no requirement for Dr Lee to be accredited in order to provide the s 86(1)(c) certificate. The employer says that Dr Lee is an occupational physician who is qualified to assess the worker's injury. On the face of Dr Lee's certificate that would appear to be correct. The expertise of Dr Lee is a matter to be tested at the hearing.
5. The worker criticises Dr Lee for changing the diagnosis of her injury. Dr Lee's diagnosis and whether the diagnosis is correct and whether the injury diagnosed by him is the injury suffered by the worker in respect of which her claim for compensation was made are all matters of fact to be determined at the hearing.
6. The worker is critical of Dr Lee for not investigating what she considers was negligent management of her after her work accident and of her the employer for not providing Dr Lee with certain information. Insofar as these matters might be relevant to the central issue on the s 86(4) referral of whether the worker has wholly or substantially recovered from the work injury, and on the s 88 referral if she has not so recovered what is the extent of her retained capacity, if any they fall to be tested at the hearing.
7. The employer says that Dr Lee's opinion and the basis for that opinion is clearly set out in the s 86(1)(c) certificate served on the worker. The worker's criticism of Dr Lee and the employer's reliance on his opinions goes to the substantial matters in issue on the referrals. Dr Lee may be wrong, but that is a matter to be determined at the hearing.
8. The worker is critical of the employer for not providing video footage of the work accident to her before her independent medical examination. She is critical of the employer proposing to call as a witness the employer's safety manager, on the basis that her evidence represents the employer's interests. She says that the evidence would be inadmissible in the Supreme Court and cites statutory provisions relating to the giving of false or misleading evidence. The employer is entitled to call evidence to support its case. Whether that evidence is accepted, and whether it might be false or misleading, are matters to be determined at the hearing. I observe that the worker's assertion of false and misleading evidence is a serious one, and one made without any evidence that would properly justify the allegation.
9. The worker also contends that the employer has failed to provide certain documents, being incident and investigation reports. The employer says that the accident and investigation reports in its possession have been provided to the worker. It has asserted privilege in respect to certain medical reports. The existence of any other documents is a matter that might be tested by the worker at the hearing, but it is not immediately clear what direct relevance any initial incident and investigation reports might have at the hearing given that the s 86(4) proceeding will take the fact of the worker having suffered the injury as given, and, as the entitlement to workers compensation is no-fault, any questions of negligent conduct by the employer are not relevant to the issues before the Tribunal.
10. In her submissions in response to the application to adjourn the worker contends that the employer knowingly filed an invalid s 88 referral subsequent to unlawfully terminating her entitlement to workers compensation. The employer submits that the section 88 referral is not an abuse of process. It says that in support of the referral it has provided expert medical and vocational reports supporting review of the worker's weekly payment rate.
11. I note that the employer's s 88 referral was filed on 18 May 2023. It seeks a review of the worker's weekly payments and orders that those payments be reduced to zero or such other amount as the Tribunal considers appropriate. The referral was filed together with a copy of the s 86(1)(c) certificate by Dr Lee.
12. I am satisfied that none of the matters raised by the worker amount to an abuse of process by the employer.
13. In her response to the employer's application to adjourn the worker has sought orders to dismiss the proceedings in their entirety for want of prosecution pursuant to s 88(4) of the TASCAT Act, which I infer is limited to the employer's s 88 referral rather than the entirety of the proceedings including her s 86(4) referral. Section 88(4) provides:

(4) At any time, the Tribunal may make an order dismissing or striking out all, or any part, of any proceedings for want of prosecution.

1. The s 86(4) referral challenging the termination of weekly payments by the s 86(1)(c) certificate was filed on 17 July 2023. It notes the date of termination of weekly payments as 23 May 2023, which is after the date that the s 88 referral was filed. Therefore, as at the date the s 88 referral was filed the worker was in receipt of weekly payments which might be reviewed. Once those payments were terminated by the s 86(1)(c) notice the s 88 referral had no work to do. It was in a sense resurrected by the s 86(4) referral. The remedy available on a successful s 86(4) referral is reinstatement of weekly payments. There is no discretion on that referral for the Tribunal to review the rate of weekly payments: Gulf Industries Pty Ltd and Mmi Insurances Ltd v Gregory Ernest Barnett [1996] TASSC 75. That discretion will arise in connection with the s 88 referral.
2. It is common in such circumstances for the proceedings to concentrate on the s 86(4) referral, with the evidence filed in that matter also being used in respect to the s 88 referral. The proceedings are managed and heard together. Unless the worker is successful on the s 86(4) referral the s 88 referral will have no work to do. Accordingly, the proceedings are essentially prosecuted on the s 86(4) referral. There has been no want of prosecution of the s 88 referral.
3. Given the nature of the submissions made by the worker, the employer has also addressed whether the proceeding is frivolous, vexatious, misconceived or lacking in substance. The finding that a matter is frivolous or vexatious involves a high threshold: Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 [71]. The employer cites the decision of Blow CJ in Higgins v Orchard [2021] TASSC 44 at [9] where His Honour said:

9 There are a number of situations in which legal proceedings may properly be regarded as vexatious. Those situations are as summarised by Roden J in Attorney-General v Wentworth [1988] NSWCA 8; (1988) 14 NSWLR 481 at 491 as follows: > > "1 Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. > > 2 They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise. > > 3 They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless."

4. The employer correctly contends that none of the situations set out in that passage apply to the s 88 referral, which was filed to review the workers weekly rate of compensation and, in respect of which, support by independent expert evidence has been provided.
5. The parties are clearly in dispute. The employer has provided expert opinion, from the outset of the referrals and subsequently, supporting its contention that the worker has recovered from her injury and has capacity to earn. There is nothing unusual duplicitous or vexatious in the employer's conduct of the proceedings. There is simply a dispute between the parties that is to be resolved at hearing.
6. The worker's application to dismiss the s 88 referral should be refused.

1. The employer's application to adjourn is based on the unavailability of an expert witness, Mr Ross Blandford who has provided a vocational assessment of the worker, and a lay witness who is employed by the employer, Ms Belinda Rasti.
2. The employer also raised the worker having not filed a statement of facts issues and contentions. The worker has subsequently filed her statement. Although the statement is quite substantial, and the worker has separately filed statements in respect to a s 42 referral and s 143Q referral that are misconceived and have not been listed for hearing for reasons made clear to the worker in the course of directions hearings, the delay in its provision would not, on its face, support an adjournment.
3. The paramount consideration on an application to adjourn is justice in all the circumstances. In _Webb v Kingborough Counc_il [2024] TASCAT 108 at [9] I identified a number of matters relevant to the exercise of the discretion to adjourn:

9. Despite this, the application is analogous to an application for an adjournment and the principles guiding the exercise of the discretion to adjourn are relevant to determination of the application. I set out those principles in W Lashmar v Glamorgan Spring Bay Council [2023] TASCAT 14 at [5] - [8] and in Owens v Kingborough Council [2023] TASCAT 114 at [7] - [9]. The principles include the following: > > (a) The paramount consideration in determining an application for adjournment is justice in all the circumstances. > > (b) The interest of justice include, but are not limited to, the reasons advanced for the adjournment, whether the application is agreed or opposed, prejudice to any party, procedural fairness and modern case management principles. > > (c) In respect to case management, the interests of justice include consideration of the public interest in the efficient use of the publicly funded resources of the Tribunal, inefficiencies in the application of those resources and the effect of adjournment on other litigants competing for the Tribunal's resources. > > (d) Adjournments are no longer granted merely for the asking, even if not opposed, and management of the prehearing process is a matter for the Tribunal, not just the parties. > > (e) The objectives set out in s 10 of the TASCAT Act, and in particular the objectives in s 10(1)(c), (d) and (g) will inform exercise of the discretion to adjourn. In summary those objectives are to resolve appeals as quickly as possible while achieving a just outcome, to minimise costs insofar as is just and appropriate and to be flexible in the conduct of Tribunal business. > > (f) Within the planning stream the discretion will also be informed by the requirement in cl 9 of Pt 8 of Sch 2 of the TASCAT Act to hear and determine a planning appeal within 90 days after it is instituted. Although that period may be extended it expresses a policy that appeals in the planning stream should be resolve expeditiously.

4. With the exception of (f), which at the relevant time related only to the Resource and Planning Stream and which has since been repealed, I am guided by those considerations.
5. The unavailability of a witness raises issues of procedural fairness, and the fair hearing rule described in Kioa v West [1985] HCA 81 at [11]. The fair hearing rule will be breached where a party is denied an opportunity to produce evidence so as to be deprived of the possibility of a successful outcome: Minister for Immigration and Border Protection v SZMTA [2019] HCA 2 at [2].
6. The employer has not described the evidence that is intended to be led from Ms Rasti, but evidence as to the workers vocational options and abilities to be provided by Mr Blandford is clearly relevant and central to the issues of capacity and recovery raised on the referrals.
7. I am satisfied that the hearing should be adjourned.

1. The employer has proposed that a further conciliation conference be held to investigate the possibility of resolution of the referrals. The worker does not oppose a conciliation conference , but wants it expedited. Without expressing any view as to the merits of the parties respective cases, a mediated conference at this stage might well be productive.

1. Accordingly:
   1. The worker's application to dismiss the s 88 referral is refused.
   2. The hearing dates commencing on 14 July 2025 are vacated.
   3. The s 86(4) and s 88 referrals are referred for a conciliation conference by the Deputy Registrar or his delegate pursuant to Division 2 of Part 5 of the Workers Rehabilitation and Compensation Act 1988 at the earliest convenient date to be determined by the Deputy Registrar or his delegate.

1. The worker has leave to attend the conciliation conference remotely.

1. In the event that the referrals are not resolved at the conciliation conference the s 86(4) and s 88 referrals are to be listed for hearing for 4 days commencing at 10am on a date to be determined by the Registry.