1. Mx Ryan was involved in a motor vehicle accident on 28 January 2022. Mx Ryan suffered various injuries. There appears to be a dispute or potential dispute between the parties as to the cause of all or some of those injuries.
2. On 3 March 2023, the insurer sent Mx Ryan a letter requiring them to attend a scheduled appointment with a clinical psychologist, Dr Fernando Roldan, for an assessment of Mx Ryan's needs for treatment and care. The decision to require Mx Ryan to attend that appointment was made under s 121(1) of the MAI Act and was confirmed on internal review on 24 March 2023.
3. On 26 May 2023, the insurer required Mx Ryan to undergo an assessment of their physical injuries by Dr Seamus Dalton, orthopaedic surgeon, pursuant to section 121(1) of the MAI Act. That decision was affirmed on internal review on 15 June 2023.
4. Mx Ryan did not attend the scheduled appointments with Dr Roldan or Dr Dalton. In May, June and July 2023, Mx Ryan engaged in correspondence with the insurer about the appointments, including by sending emails contesting the need to attend those appointments and saying they were medically unable to attend them.
5. On 8 August 2023, the insurer decided to suspend Mx Ryan's defined benefits under section 121(3) of the MAI Act because Mx Ryan had not complied with the insurer's request to attend the examinations arranged by the insurer. That decision was affirmed on internal review on 24 August 2023 (the Suspension Decision) and Mx Ryan received notice of the internal review decision on the day it was made.
6. Mx Ryan applied for review of the three internal review decisions on 16 November 2023 and, as the applications for review were out of time, also applied for an extension of time to make those applications.
7. The matter came before the Tribunal for an interim hearing of Mx Ryan's extension of time applications on 9 February 2024. The insurer tendered a bundle of material which it relied upon in relation to the extension of time applications.
8. The insurer indicated that its position was that the Tribunal did not have power to extend time for Mx Ryan to apply for review of the Suspension Decision. The parties were directed to provide written submissions on that question. The Tribunal, differently constituted, handed down a decision on 31 July 2024, finding that the Tribunal did have power to extend time to apply for review of the Suspension Decision.[1]
9. On 21 August 2024, I dismissed Mx Ryan's applications for an extension of time to apply for review of the first two internal review decisions. Each of those applications was made more than 56 days after the time for making the application ended so that the Tribunal did not have power to extend time in respect of those decisions.[2] I gave the parties an opportunity to provide evidence and submissions in relation to Mx Ryan's application for an extension of time to apply for review of the Suspension Decision. I also gave the parties notice that I proposed to decide that application on the papers and invited submissions about that proposal.
10. I am satisfied that I have power to extend time in respect of Mx Ryan's application to review the Suspension Decision and jurisdiction to review that decision if an extension of time is granted.[3]

1. Subject to specified provisions of the MAI Act, a person injured in a motor accident is entitled to treatment and care benefits for treatment and care expenses.[4] The term "treatment and care expenses":

(a) means expenses incurred by the injured person in providing for the injured person's treatment and care; but

_(b) does not include expenses incurred for treatment and care - _

Note Section 120 deals with deciding whether treatment and care is reasonable and necessary.

(ii) that did not relate to a personal injury sustained in the motor accident; or

(iii) for which the injured person has not paid and is not liable to pay.[5]

1. The term "treatment and care" includes medical treatment.[6]
2. A person injured in a motor accident is also entitled to income replacement benefits in certain circumstances.[7]
3. Subsections 121(1) to (3) of the MAI Act provide:

(1) The relevant insurer for a motor accident may require a person injured in the motor accident to attend a health practitioner for an assessment of the injured person's needs for treatment and care, including a medical or other examination.

Note 1 An injured person must include an authority to disclose personal health information with the person's application - see s 57.

Note 2 Authority to disclose personal health information - see s 54.

Note 3 Health practitioner - see the Legislation Act, dictionary, pt 1.

(2) The injured person must comply with any reasonable request made by the relevant insurer in relation to the assessment.

(3) If the injured person fails, without reasonable excuse, to comply with the relevant insurer's request, the relevant insurer may suspend either or both of the following until the person complies with the request:

(a) the person's treatment and care benefits;

(b) the person's income replacement benefit payments.

1. The Suspension Decision, made under section 121(3) of the MAI Act, is an "ACAT reviewable decision."[8] An application for external review of an ACAT reviewable decision must be made within, relevantly, 28 days after the day the applicant for external review is given an internal review notice in relation to the ACAT reviewable decision.[9] However, the tribunal may extend the time for making an application for administrative review of a decision by up to 56 days starting on the day after the day the time for making the application ends and ending at 4:30 pm on the day the extension of time ends.[10]

1. On 6 September 2024, I decided to determine Mx Ryan's application for an extension of time to apply for a review of the Suspension Decision on the basis of documents, without holding an oral hearing. I informed the parties that I would provide reasons for that decision when I determined the extension of time application. These are those reasons.

Submissions on determining interlocutory application on the papers

1. By submissions dated 4 September 2024, the insurer opposed the proposal to decide the application for an extension of time on the papers. The insurer submitted that it wished to cross-examine Mx Ryan about assertions made in support of the application for an extension of time. It said it should be permitted to cross-examine Mx Ryan at a hearing as a matter of fairness and, primarily for that reason, the application should not be determined on the papers.
2. Mx Ryan submitted that deciding the matter on the papers would be most consistent with achieving justice and observing natural justice and procedural fairness. They said that they would be unable to participate fully in oral proceedings because of their medical condition. They said that they suffered from:

(a) hyperacusis, which made it impossible to follow and comprehend what was taking place after some time;

(b) fatigue, noting that a half day hearing is longer than their fatigue threshold amounts permit;

(c) impacted memory and executive functioning which made it difficult to remember information given verbally when fatigued; and

(d) post-traumatic stress disorder (PTSD) and emotional regulation from a brain injury.

1. Mx Ryan relied upon various medical and health reports in support of this submission.
2. An occupational therapy functional assessment report dated 16 April 2024 written by Emma Chan, Occupational Therapist, relevantly states that:

(a) Mx Ryan has a reduced tolerance for appointment times, due to their extreme levels of fatigue, and symptoms that increase when appointments and other cognitive and communication activities extend beyond their tolerance level;

(b) When engaging in appointments longer than 20-50 minutes (variable), signs and symptoms of fatigue became increasingly apparent. Observable signs included a slowing of speech, with increasing gaps between each word ("staccato speech"), increasing word-finding problems, and Mx Ryan holding their head. Reported symptoms included a worsening sense of pain and pressure around the temples, pain and pressure from within their ears, worsening headaches, dizziness, nausea ("a sea-sick feeling"), "deep fatigue", irritation or teariness and other noticeable shifts in mood, and increasing noise and light sensitivity. [11]

1. Ms Chan stated in her report that Mx Ryan attained a score of 62 of the Fatigue Severity Scale, indicating an extremely high level of fatigue, with an extremely severe impact on function.
2. A report from audiologist D-Marie Bradfield dated 15 December 2023 states that it is more than likely than not that Mx Ryan is still suffering from hyperacusis. The audiologist states that hyperacusis can be defined as an abnormal sensitivity and physical discomfort towards sound which other people can comfortably tolerate.
3. A fitness for work certificate, signed by Dr Dana Phang on 3 September 2024, states that Mx Ryan's diagnosis includes traumatic brain injury, post-concussion syndrome, PTSD, post-traumatic headaches, anxiety-depression and hyperacusis.
4. A report of a consultant psychiatrist, Dr Caroline Flynn, undated but stated to be prepared for a case conference team meeting on 1 December 2022, states that Mx Ryan's then current diagnoses included post-concussion syndrome, PTSD and panic attacks and flooded emotional states related to insurance/claim processes, including intense fear reactions.
5. I am satisfied, on the basis of the medical and health reports referred to above and Mx Ryan's representations, that Mx Ryan is likely to have difficulty focusing and concentrating in a half-day hearing and that they are likely to have an impaired ability to follow what is happening in such a hearing. I find that it is also likely that Mx Ryan would suffer from other symptoms, such as headaches and dizziness, which would affect their capacity to engage meaningfully in the hearing.
6. The insurer submitted that a procedure which allowed cross-examination of witnesses was beneficial for the Tribunal to conduct its fact-finding objective, relying upon Re War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at 256. It also submitted that, in some circumstances, procedural fairness may require that the procedure adopted by the tribunal includes allowing a party to cross-examine, relying upon National Companies and Securities Commission v News Corp Ltd [1984] HCA 29; (1984) 156 CLR 296 (NCSC) at 312 and Omari v Omari [2009] ACTSC 28 (Omari) at [93].
7. The insurer indicated that there was material before the Tribunal which cast doubt on some of the matters relied upon by Mx Ryan in support of their application for an extension of time. The insurer wished to question Mx Ryan as to why they were able to take action in respect of other aspects of their defined benefits application between 23 August 2023 and 16 November 2023 if the reasons they gave for the delay were true. The insurer submitted that the material in the bundle cast doubt of Mx Ryan's credibility. It also said that denying the insurer the opportunity to test Mx Ryan's evidence would disadvantage it by leaving matters central to the extension of time application untested. The insurer further submitted that the grant of an extension of time would cause it prejudice, given the enormous task of providing voluminous documents to the Tribunal, as it would be required to do.

1. Cross-examination in an interlocutory application in court proceedings generally requires leave and the discretion to permit cross-examination in most jurisdictions is "sparingly exercised."[12] The authorities relied upon by the insurer are not inconsistent with this position. The passage from NCSC upon which the insurer relies is authority for the proposition that the content of the rules of procedural fairness depend on the statutory context and that what is required is fairness in all the circumstances. That proposition is uncontentious. The context in this case includes that the Tribunal is determining an interlocutory application.
2. In Omari, another case on which the insurer relies, Refshauge J found that a tribunal had erred in failing to permit cross-examination of a witness in substantive proceedings on the witness's evidence relating to a central issue in the case. However, his Honour was "not persuaded that the Tribunal is required to permit cross-examination as a matter of course."[13]
3. The rules of procedural fairness do not require the Tribunal to give the insurer an opportunity to test Mx Ryan's evidence in support of their application for an extension of time in the circumstances of this case. Procedural fairness requires the insurer to be given notice of the case that is put against it, and a reasonable opportunity to put evidence and submissions before the tribunal concerning that case.[14] The insurer was afforded an opportunity to make written submissions about alleged inconsistencies between the reasons Mx Ryan gave in support of that application and other material. Further, the insurer did not propose to cross-examine the health professionals whose reports are the source of expert evidence, about Mx Ryan's diagnoses.
4. In the circumstances, the determination of the application for an extension of time on the papers is not procedurally unfair.
5. I also note that the insurer's assumption that it would be required to provide voluminous documents to the tribunal is not necessarily correct. Directions may be made restricting the documents the respondent is required to provide to relevant documents. Further, I am not persuaded that the task of providing even a large number of documents to the tribunal is properly described as an "enormous task," nor that the prospect of this occurring, is a persuasive reason to hold an oral hearing.
6. Determination of the interlocutory application on the papers most effectively ensures the tribunal's procedures are as simple, quick, inexpensive and informal as is consistent with achieving justice; and that they are implemented in a way that facilitates the resolution of the issues between the parties so that the cost to the parties and the tribunal is proportionate to the importance and complexity of the subject matter of the interlocutory proceeding.[15] In determining what is consistent with achieving justice, I have given weight to the potential injustice to Mx Ryan in being placed in a position where they are likely to be unable to participate effectively in an oral interlocutory hearing.
7. For those reasons, I decided to determine the interlocutory application on the papers.

1. Relevant factors to be considered when determining an application for an extension of time include the explanation for the delay and length of the delay; the merits of the case (generally, whether it is arguable or reasonably arguable);[16] and the prejudice to the other party if leave is granted.[17] The critical question is whether it is in the interests of justice to grant the application.[18]

1. Mx Ryan indicated, in their extension of time application, that they did not apply to the Tribunal within the prescribed time limit because they had extreme difficulty managing their household and personal affairs with the minor traumatic brain injury sustained in the motor vehicle accident. They also said that the amount of work to lodge the paperwork after the termination of support worker and occupational therapist services by the insurer had been almost impossible alone. Mx Ryan submitted that their capacity to synthesise large amounts of information and to make a plan to act in response was significantly impaired and that their mental health conditions had been aggravated by the termination of defined benefits and they were struggling to manage their affairs.
2. Mx Ryan also submitted in the extension of time application that the insurer had been unwilling to accommodate their disabilities in the proposed appointments with medical experts. They referred to a report from a neurologist, Dr Gawarikar, who said that delay and obstructions from the insurer in relation to treatments had worsened Mx Ryan's anxiety and PTSD symptoms, and to Dr Flynn's psychiatric report stating that the insurer needed to change its approach or risk protracting Mx Ryan's illnesses/syndrome.

1. The insurer opposed Mx Ryan's application for an extension of time to apply for review of the Suspension Decision.
2. The insurer pointed out that, in its reasons for the Suspension Decision, it included information about Mx Ryan's review rights, including the statement: "An application for review must be made with ACAT within 28 days of receiving this letter so it is important that you act quickly."
3. The insurer submitted that Mx Ryan did not have an acceptable explanation for the delay in making their application. Its position was that there was no substance to Mx Ryan's assertions that "extreme difficulty managing [their] household and personal affairs" prevented them from making an application. The insurer submitted that the evidence demonstrated that the applicant was capable, at relevant times, of corresponding with the insurer with a view to protecting and advancing their interests.
4. The insurer submitted that, despite Mx Ryan's failure to comply with the insurer's reasonable requests to attend health practitioner assessments, the evidence demonstrated that Mx Ryan could attend such assessments. It stated that the evidence established that Mx Ryan underwent a hearing assessment on 15 December 2023 and multiple occupational therapy assessments between 3 January 2023 and 16 April 2024.
5. In the insurer's submission, the review application had no, or no appreciable, merit. It characterised the "ultimate issue" before the Tribunal as being whether it "erred in finding that the applicant did not have a reasonable excuse for failing to attend the assessments with Dr Roldan and Dr Dalton." It submitted that the evidence did not support that conclusion.

1. The delay in making the application for an extension of time was reasonably significant. Mx Ryan was required to apply for review of the Suspension Decision within 28 days, by 21 September 2023. They did not apply for review until 56 days later.
2. Mx Ryan's explanation for the delay, being that they had difficulty managing their household affairs as a result of the brain injury they suffered, is a reasonable explanation. It is more probable than not, having regard to the evidence from medical and other health practitioners, referred to above, that Mx Ryan was suffering from a range of symptoms and conditions at relevant times, including extreme fatigue, word-finding problems, chronic pain, dizziness, mood shifts, noise and light sensitivity, hyperacusis, post-concussion syndrome, PTSD and impacted memory and executive functioning. I find that the combination of these factors significantly contributed to Mx Ryan's lateness in lodging her application.
3. It may be accepted, as the insurer pointed out, that Mx Ryan corresponded with the insurer at relevant times in respect of their defined benefits application and that they also attended some appointments with their own health practitioners. Mx Ryan was not, at relevant times, incapable of functioning at all in relation to their insurance and health affairs. However, I do not accept the insurer's submission that there is "no substance" to Mx Ryan's assertions about their difficulties in managing their affairs. The existence of such difficulties is amply supported by the evidence of doctors and other health practitioners.
4. The next issue is whether Mx Ryan has a reasonably arguable case. I have assessed this by way of "an impressionistic consideration" of the issues, as is generally appropriate when determining an application for an extension of time.[19]
5. The first substantive issue (as the insurer submitted) is whether Mx Ryan did not have a reasonable excuse for failing to comply with the insurer's request to attend the assessments with Dr Roldan and Dr Dalton. The second issue the Tribunal may have to consider (to which the insurer did not refer) is whether, if they did not have a reasonable excuse, the correct and preferable decision is to suspend their benefits.
6. Mx Ryan explained, in their application for an extension of time, their reasons for not attending the assessments as follows:

The insurer wishes me to see several Independent Medical Experts but has been unwilling to accommodate my disabilities in those appointments caused by the MVA, and aggravated by the conduct of the insurer. These include requests for a support person to attend with me and stagnation of the appointments over several intervals so I did not worsen symptoms during the appointment. They also refused requested [sic] to accommodate my injuries by providing information as to the scope and purpose of the appointment, and information as to what documentation had been provided to the Independent Medical Experts ("IME"). Given the insurer previously selected certain documentation and omitted others being sent to medical professionals, and previously provided incorrect information to medical professionals, my injuries have been worsened to an extent I was unable to attend the appointments requested. My medical team have recommended against the insurer requiring my attendance at further IME appointments at this time.

1. Ms Ryan's expressed reasons for failing to attend the appointments include that the insurer refused to accommodate Mx Ryan's needs in the way the appointments were arranged. Mx Ryan also referred to a recommendation by a medical practitioner that they do not attend the appointment "at this time." They cited the opinion of the neurologist Dr Gawarikar in a report of 1 December 2022 that the "main trigger" for their anxiety and PTSD "has been the delay and obstructions from her insurance provider for her treatments." Dr Caroline Flynn, psychiatrist, stated in a report of the same date that the "extraordinary challenging and laborious and antagonistic insurance pathway processes" have "preyed on" Mx Ryan's "precise vulnerabilities - activating intense stress, mistrust and feeling disempowered." Dr Flynn added, that to aid Mx Ryan's recovery, "the insurance agency needs to change it's [sic] approach or risk protracting the illnesses/ syndrome, preventing healing, transformation and growth."
2. The insurer submitted that, to the extent that Mx Ryan has made the "excuse" that they "were too unwell to, or could not, attend a doctor," that should not be accepted as it is inconsistent with the evidence that Mx Ryan has attended doctors and other health professionals. That is, however, to misrepresent Mx Ryan's case. Their case is not simply that they were too unwell to attend a doctor, but rather that, in the context of the insurer's previous conduct and its refusal to accommodate their needs, attending the appointments arranged by the insurer triggered their anxiety and PTSD.
3. The insurer also submitted that to the extent that Mx Ryan's "excuse" is that the requirement to attend the assessments was unreasonable, they are precluded from relying upon that because they did not challenge the insurer's decisions to require them to attend Dr Roldan and Dr Dalton for an assessment within time. I do not understand Mx Ryan's case to be simply that the requirement to attend the assessments was unreasonable. At least part of Mx Ryan's case appears to be that, even if the attendance requirement was reasonable, the insurer should have accommodated their disabilities in the determining the form and nature of the assessment (for example, by allowing a support person and by allowing the assessment to take place over several days).
4. It is also relevant to note that there may be a real question as to whether, if Mx Ryan did not have a reasonable excuse for failing to attend the appointments, the correct and preferable decision would be to suspend their benefits. That is because Mx Ryan claims that the insurer's conduct exacerbated their injuries, making it more difficult for them to attend the appointments. There is some medical evidence in support of that claim, which is referred to above.
5. I am satisfied that Mx Ryan's case is reasonably arguable.
6. I accept the insurer's submission that it has not had an opportunity to provide its own medical evidence, because Mx Ryan has not attended the appointments it arranged. Nevertheless, I am only determining whether Mx Ryan's case is reasonably arguable, in an impressionistic way. Medical reports from practitioners expressing different opinions from those expressed in Mx Ryan's materials may be of significance to the outcome of the substantive review proceedings but would be unlikely to alter the conclusion that Mx Ryan has a reasonably arguable case.
7. The final issue is whether there would be any prejudice to the insurer occasioned by an extension of time. The insurer submits that the delay is likely to adversely affect the insurer's ability to manage its ongoing obligations and liabilities to Mx Ryan. It says that the delay is likely to prejudice its ability to manage or mitigate its liability in this case, with reference to Di Carlo-Casablanca and Australian Capital Territory (Compensation) [2019] AATA 4772 at [128]- [154].
8. The evidence does not establish that any prejudice to the insurer caused by the delay would be more than minimal. I am not persuaded by the evidence, or by the insurer's submissions, that the delay is likely to prejudice the insurer's ability to manage or mitigate its liability in this case, to any significant degree.
9. On balance, and having regard to the factors considered above, I consider that the interests of justice favour the grant of an extension of time. Accordingly, I have granted Mx Ryan an extension of time to apply for review of the Suspension Decision and have listed the matter for a directions hearing.

[1] Ryan v NRMA Insurance [2024] ACAT 52. See also ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), ss 24, 25; ACT Civil and Administrative Tribunal Procedures Rules 2020 (repealed), r 38(4); and ACT Civil and Administrative Tribunal Procedures Rules 2024, r 38(4).

[2] ACT Civil and Administrative Tribunal Procedures Rules 2020 (repealed), r 38(4). The decision to dismiss the applications was made before the repeal of those rules.

[3] MAI Act ss 192, 193 and Schedule 1, Part 1.2, item 25 and see Ryan v NRMA Insurance [2024] ACAT 52 at [6]

[8] MAI Act s 192, Schedule 1, Part 1.2, item 25

[10] ACT Civil and Administrative Tribunal Procedures Rules 2024, r 38(4), which is in the same terms as ACT Civil and Administrative Tribunal Procedures Rules 2020 (repealed), r 38(4).

[11] Occupational Therapy Functional Assessment Report dated 16 April 2024, page 1 at [1.3]

[12] Freehill Hollingdale & Page v Bandwill Pty Ltd [2000] WASCA 150 at [29]; Ren v Jiang [2014] NSWCA 1 at [12]; Quebani Pty Ltd v McDonald's Australia Ltd (Appeal) [2023] VSC 439 at [39]- [40]; Wu v Avin Operations Pty Ltd (No 3) [2006] FCA 1321 at [18]. A different position obtains in the Australian Capital Territory courts as a result of court rules requiring the maker of an affidavit to attend for cross examination unless that requirement is dispensed with: see Pappas v Aulich Civil Law Pty Ltd [2022] ACTSC 45, McCallum CJ at [11]-[17]. However, this does not affect the general principle where those court rules do not apply (as is the case in the Tribunal).

[14] New South Wales Police Force v Winter [2011] NSWCA 330 at [84]

[16] Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 at [15], [64]; MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [63]; at [38]

[17] Ikoro & Anor v Ezekiel-Hart (Residential Tenancies) [2021] ACAT 72 at [25]; Commissioner for Social Housing v Williams (Appeal) [2017] ACAT 53 at [8]

[18] Rojas Constructions Pty Ltd v Steven (Appeal) [2024] ACAT 51 at [75]; Gallo v Dawson [1990] HCA 0

[19] Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 at [15]- [17]