If the HIC does not obtain a written report from such psychiatrist, and if the psychiatrist is to be called to give evidence at the hearing, then the HIC shall supply to the other parties a statement of the observations made, and the opinions formed, by such psychiatrist at or as a result of his examination upon the same terms and within the same period as would have applied as herein before provided had a written report been supplied.

There will be liberty to any party to these proceedings to apply to the Tribunal with respect to the implementation of this Direction.

In this matter the applicant ("the HIC") has applied for review of a decision made by the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees ("Comcare") on 30 January 1990 on reconsideration of a determination of 16 October 1989 which had found the respondent Peter Charles Hobbes ("the employee") entitled to compensation for "generalised anxiety disorder with associated panic disorder". Comcare had affirmed that decision. The employee had also made a claim in respect of myocardial infarction, but that claim had been rejected and is not before the Tribunal.

2. The employee's contention is that what I shall simply call his "anxiety claim" is compensable and that Comcare's decision finding it so was correct. For the purpose of making its decision Comcare, which likewise in these proceedings maintains the correctness of its decision, had various pieces of evidence before it. At the hearing these will be available to the employee and to Comcare, and the HIC will have notice of that evidence. Relevantly, Comcare relied on, and will be able at the hearing to rely on, reports by a Dr Richards, who is the employee's general practitioner, and by a Dr W. Knox, a consultant psychiatrist, who had initially seen the employee as his patient on a referral from Dr Richards. From Dr Knox's report it appears that the employee did not continue to consult Dr Knox when he perceived that his entitlement to reimbursement of Dr Knox's fees within his compensation claim might be subject to challenge. This perception apparently arose from the fact that the claim in relation to his heart condition had been rejected.

3. The HIC has applied to this Tribunal under s.64(1) of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 ("the 1988 Act"). It now claims that it should be entitled to have the employee examined by a psychiatrist and by a psychologist in order that it may prepare for the hearing and if necessary call such persons to give evidence at that hearing. The position adopted by Comcare is that the evidence currently available was enough for Comcare to make its decision, and remains enough for the purpose of the Tribunal conducting its review of that decision. There was, it was said, medical evidence already available, and the position was simply that the HIC did not like that evidence. It was contended that the words "for the purpose of reviewing a decision" in s.43(1) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") related effectively only to the purpose of the procedure of such a review and not to the making of a decision.

4. This view was supported by the employee's representative who said that there would be no lack of procedural fairness in denying to the HIC the opportunity to make submissions which Comcare had sought prior to making its first decision in October 1989. In fact however Comcare does not appear to have sought the views of the HIC in relation to medical evidence, but rather to have sought its comments on statements made by lay persons in relation to the employee's work environment.

5. The matter is of some importance. I reserved my decision on whether the direction sought should be made as I wished to check whether any such direction has been made in the past within the Tribunal, but the result of my enquiries was that none such appears to have been made. Some related aspects of the problem were dealt with in Re Patten and Australian Telecommunications Commission (1984) 6 ALD 303, but the particular problem before me was not before the Tribunal in that case. In the result, and considering the matter for myself, I am satisfied that to deny the HIC the opportunity which it seeks would constitute a denial of natural justice. As was observed in the submission by the representative of the HIC the Tribunal has a number of powers which it may exercise, and it operates under a charter set out in the AAT Act. Reference was made to the provisions of s.33(2) of the AAT Act, and no doubt those provisions may be called in aid of a larger power or powers, although they would not in my opinion on their own support the making of such a direction. The two more important provisions, which contain what I call larger and indeed more specific powers, are ss.39 and 43(1) of the AAT Act which provide as follows:

"39. Subject to sections 35, 36 and 36B, the Tribunal shall

ensure that every party to a proceeding before the Tribunal

is given a reasonable opportunity to present his case and, in

particular, to inspect any documents to which the Tribunal

proposes to have regard in reaching a decision in the

proceeding and to make submissions in relation to those

documents.

43.(1) 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 and shall make a decision in writing:

(a) affirming the decision under review;

(b) varying the decision under review; or

(c) setting aside the decision under review and:

(i) making a decision in substitution for the decision so set

aside; or

(ii) remitting the matter for reconsideration in accordance with

any directions or recommendations of the Tribunal."

6. The provisions of s.43(1) are in my opinion far wider than was contended for by Comcare. In Re Control Investment Pty Ltd and Ors and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 at 92 the then President, Davies J, said:

"Mr Morris submitted that the word 'may' in s 43 of the

Administrative Appeals Tribunal Act imports an element of

discretion so as to authorize the Tribunal to limit its function

as it sees fit. But the provision '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 ...' 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. The provision extends the authority of

the Tribunal so that it may more adequately exercise its

function of reviewing on the merits the subject decision."

7. Applying the concept of an "amplitude of powers" as referred to by Davies J, I consider it quite clear that the Tribunal has the power conferred on Comcare by s.57 of the 1988 Act, and that it should exercise it in a proper case. That section provides:

"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 a 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 to 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.

(4) The matters to which the relevant authority is to have

regard in deciding questions arising under subsection (3)

include:

(a) the means of transport available to the employee for the

journey;

(b) the route or routes by which the employee could have travelled;

and

(c) the accommodation available to the employee.

(5) Where an employee's right to

compensation is suspended under subsection (2),

compensation is not payable in respect of the period of the

suspension.

(6) An employee shall not be required to

undergo an examination under this section at more frequent

intervals than are specified by the Minister by notice in

writing."

8. In my opinion the requirements of natural justice, including the statutory formulation of one element thereof included in s.39 of the AAT Act, make it clear that the HIC should be afforded the opportunity to have the employee undergo an appropriate medical examination. Without such examination the hearing of the matter may be constricted in an inappropriate fashion by virtue of the medical evidence being entirely orchestrated by the party whose decision is under challenge. I may add that I do not consider that the HIC has had the opportunity to make relevant submissions as contended for by the employee's representative. I agree that at that point Comcare was referring the matter to the HIC precisely for the purpose of obtaining medical evidence. There was certainly at that stage no request to nominate medical practitioners.

9. The employee by his representative at the directions hearing offered to attend for examination by a psychiatrist nominated by Comcare, but although one should be able to trust that a professional man would not be influenced in his opinion by the fact of which party it is that has nominated him to examine an employee, the fact remains that justice must not only be done but be seen to be done. Natural justice is a concept the advantage of which is something to which both sides of the record, or as in this case all parties thereto, are entitled.

10. I note that in a matter in the Supreme Court of the Australian Capital Territory (Neill v The Commonwealth of Australia and Another, Blackburn CJ, 9 September 1982, unreported) to which I was referred the first defendant in an action for negligence causing personal injuries had asked the plaintiff to submit to a medical examination by a doctor of the first defendant's choice. The plaintiff had insisted that it be a condition of his consent to the examination that a copy of the doctor's report be furnished to him whether or not the first defendant intended to use it at the trial. The matter is thus not directly of relevance here but it is noteworthy that after referring to Megarity v D.J. Ryan and Sons Ltd (1980) 2 All ER 832 Blackburn C.J. ordered that -

"Proceedings in the action be stayed until the plaintiff

submits himself for examination by the first defendant's

appointed medical adviser, such examination not being

conditional on the disclosure of the medical adviser's report

to the plaintiff."

11. The HIC provided me with a draft of proposed directions to be made should I direct that the medical examination or examinations sought by the HIC should take place. Those proposed directions were as follows:

"1. The applicant may on up to two

occasions require the employee by notice in writing to

attend to be medically examined for the purposes of these

proceedings by a medical expert nominated by the applicant

at a specified time and place in Canberra, Sydney or Melbourne or

their environs.

2. If the place specified in the notice is

in Sydney or Melbourne or their environs, the applicant

shall pay in advance the employee's reasonable travelling

and other expenses of and incidental to the examination.

3. The applicant shall not call a medical

expert to give evidence at the hearing of the application for

review in these proceedings nor tender a report by a

medical expert in evidence at the hearing unless:-

(a) if the applicant receives any

medical reports which will be tendered in evidence on the

applicant's behalf at the hearing; or

(b) if the employee is examined

by a medical expert from whom the applicant does not

receive a medical report and the medical expert will be

called to give evidence on the applicant's behalf at the

hearing;

within 28 days after receipt of the

medical report or the date of the examination, as the case

may be, and in any event before the date of the hearing, the

applicant supplies to the other parties a copy of the report or

a statement of the observations made, and the opinions

formed, by the expert on such examination.

4. In these directions, 'medical expert'

includes a qualified practising psychologist and a qualified

practising psychiatrist."

12. While I consider that a direction should be made, those proposed as set out above are in my opinion altogether too extensive and/or onerous. First, in the light of the evidence before the Tribunal as to the applicant's medical condition I do not consider that it would be fair for him to be required to travel to Sydney or Melbourne for the purpose of such an examination. I should have thought that the HIC would have an adequate range of choice of specialist psychiatrists in Canberra, but if that is not so then I consider that a psychiatrist should be brought to Canberra to examine the employee in medical rooms not associated with the HIC. Secondly, I would not be of the opinion that I should order an examination by a psychologist even if I thought that I had power to do so. In fact, I do not consider that I do have that power. Section 57 of the 1988 Act, the principal authority for the making of the proposed direction, is confined to a requirement that an employee undergo an examination by "a legally qualified medical practitioner". The employee could never have been required by Comcare to undergo an examination by a psychologist not so qualified and I do not consider that ss.33 and/or s.39 of the AAT Act standing alone or together would suffice to provide a satisfactory basis for such an order.

13. The question was raised at the directions hearing as to how a requirement of the Tribunal that an employee undergo an examination might be enforced. In Neill's case Blackburn CJ ordered that the proceedings be stayed until the plaintiff submitted himself for examination. It was pointed out that such an order would be ineffective here since the employee is presently the recipient of the benefit of a decision in his favour providing for continuing compensation. I have no reason to suppose that the employee will not comply with the direction which I propose to make, but I simply note that the Tribunal has power under s.41(2) of the AAT Act to stay the operation or implementation of a decision that is under review if "it is desirable to do so after taking into account the interests of any persons who may be affected by the review" where it is "appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review".

14. The direction which I propose to make is as follows:

1. The applicant the Health Insurance

Commission ("the HIC") may require the respondent Peter

Charles Hobbes to attend to be examined once for the

purposes of these proceedings by a medically qualified

practising psychiatrist, such examination to take place in

Canberra in a suitable room in a building not occupied by

the HIC ("the HIC").

2. The HIC shall -

(i) pay in advance the reasonable

travelling and other expenses of Mr Hobbes of and

incidental to the examination;

(ii) pay the cost of the conduct of

the examination herein referred to;

15. If the HIC obtains a written report from such psychiatrist, and if the psychiatrist is to be called to give evidence at the hearing, the HIC shall within 28 days after receipt of such medical report and in any event not less than 10 days before the date of the hearing, supply to the other parties a copy of the report.

16. If the HIC does not obtain a written report from such psychiatrist, and if the psychiatrist is to be called to give evidence at the hearing, then the HIC shall supply to the other parties a statement of the observations made, and the opinions formed, by such psychiatrist at or as a result of his examination upon the same terms and within the same period as would have applied as herein before provided had a written report been supplied.

17. There will be liberty to any party to these proceedings to apply to the Tribunal with respect to the implementation of this Direction.