Telstra Corporation Limited v Administrative Appeals Tribunal

REASONS FOR JUDGMENT 1 This matter was remitted to the Administrative Appeals Tribunal (the Tribunal) by my order. On the last occasion that the Tribunal considered the question of Mr Rodriguez's claim for compensation, based upon a major depressive disorder, it determined that the condition was no longer connected to his former work. That determination was considered by me to be legally erroneous because there was no expert evidence to ground it. 2 Subsequent to that remitter a notice was sent on 25 March 2002, by an agent for Telstra, requiring Mr Rodriguez to attend for an examination by a psychiatrist. The psychiatrist had previously given evidence in relation to Mr Rodriguez. The notice was given under s 57 of the Safety Rehabilitation and Compensation Act 1988 (Cth)(the Act) which provides as follows: "57 Power to require medical examination (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 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." 3 Mr Rodriguez declined to attend for the examination. 4 The matter came on before the Tribunal for directions. At that time the Tribunal considered Telstra's submission that the proceedings were stayed by operation of s 57. The Tribunal noted the absence of an excuse from Mr Rodriguez and observed that he may perceive that the doctor in question, Dr Reddan, had formed an opinion, which would be contrary to his interests. The Tribunal did not accept that this perception would provide a reasonable excuse for the purposes of s 57. During submissions on the hearing before me it was apparent that the reason for his non-attendance was the maintenance of a perceived forensic advantage. 5 The Tribunal was able to reach a conclusion about whether there was a reasonable excuse. It said: "26. The section 14 matter proceeded before the previous Tribunal on the basis of medical reports and evidence which included Dr Reddan's reports and evidence based on an examination in June 2000. The respondent has not suggested that there is some forensic difficulty whereby that evidence cannot be used in a re-hearing albeit that the applicant submits faintly that Dr Reddan should no longer be heard. I reject any suggestion that the Tribunal constituted to re-hear this matter should not hear evidence from Dr Reddan. 27. I have come to a similar conclusion, in the section 14 matter, as I came to in Re Pepper and Comcare (AAT No 10339, 4 August 1995). There is an abundance of material before the Tribunal from four psychiatrists. Whether there needs to be further reports is a matter for the parties. However, I am satisfied that there does not need to be a further examination of the applicant for the purpose of a further or updated medico-legal report. I adopt the sentiments of what I said in Re Pepper at paragraph 16. 28. I am satisfied and find that the applicant had reasonable excuse for not attending for another examination by Dr Reddan in the section 14 matter." 6 The Tribunal made the following directions: "(a) section 57 of the Safety Rehabilitation and Compensation Act 1988 does not have the effect of suspending the proceedings; (b) the application be listed for hearing in February 2003; and (c) both parties have liberty to apply for directions." 7 Telstra points out that it was because there was a dearth of evidence that the matter was remitted to the Tribunal and, inferentially, that the Tribunal was therefore obliged to take further evidence or permit the parties to address the insufficiency of evidence. In its failure to do so, it submitted that it is denying Telstra procedural fairness. Whether the Tribunal considers further evidence should be obtained by it, is clearly a matter for the Tribunal's own determination. The Tribunal has expressly stated that it will hear further evidence from Dr Reddan. But those matters are, in my view, separate from the question as to whether or not s 57 operates to stay the proceedings. 8 Mr Rodriguez submits that the application is incompetent because the Tribunal has not made a "decision" as contemplated by the Administrative Decisions (Judicial Review) Act 1977 (Cth)and as explained in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. Telstra submits that the decision is one which affects its rights to put evidence before the Tribunal. It has also brought an application under s 39B of the Judiciary Act 1903 (Cth), but has indicated in submissions that it does not pursue it. 9 The "direction" made by the Tribunal, that s 57 does not have the effect of suspending the proceedings, is not, in my view, one required or authorised by the Act. The statute stipulates the circumstances in which an employee's rights will be suspended. No decision is required to bring that about: Buck v Comcare (1996) 66 FCR 359, 364, referring to Minister for Immigration and Ethnic Affairs v Naumovska (1983) 88 ALR 589, 601. Consequently it cannot be said to have been made under an enactment. That is not to say that the Tribunal cannot determine for itself whether those circumstances exist. But the "direction" is really no more than a statement of the opinion which the Tribunal has formed, preliminary to considering whether the proceeding is to continue. 10 The determinations by the Tribunal that the matter proceed to hearing, and not be considered as stayed, were in my view, made under its powers under the Administrative Appeals Tribunal Act 1975 (Cth)in connexion with proceedings before it. Senior Counsel for Mr Rodriguez raised the question as to whether the decision is then properly subject to review or whether an appeal should have been be brought under s 44 of the Administrative Appeals Tribunal Act. It would seem to me that either an appeal would lie or alternatively, the matter is capable of review under s 39B of the Judiciary Act. It involves the determination of the rights of Telstra under a statute. It is not a decision relating merely to practice and procedure. Such procedural deficiencies as there are, could be the subject of appropriate directions, so that the issue could be resolved and the proceedings in the Tribunal continued or not, as the case may be. 11 The question the Tribunal was required to address was whether the circumstances referred to in s 57 were present. In doing so, it must consider whether Mr Rodriguez has a reasonable excuse for not complying with the notice. It is obvious that the Tribunal took a different view as to whether an examination was necessary to permit Dr Reddan to present further evidence. It is understandable that the Tribunal wished to advance the proceedings and perhaps regrettable, at this point, that yet another examination was to be undertaken. These proceedings have been on foot for some years, have received the attention of a number of doctors and resulted in lengthy hearings before the Tribunal. In that process Mr Rodriguez has been examined by a number of doctors, including Dr Reddan. However, the question addressed by the Tribunal was not, in my view, that posed by the subsection. The Tribunal considered whether the expert witness for Telstra could reasonably be said to need the further examination. It reasoned that an examination was not required. The conclusion it reached was, in reality, that Mr Rodriguez ought to be excused, rather than that he himself had an excuse for non-attendance. Generally speaking, the subsection requires a reason personal to the employee. The excuse cannot be provided by an opinion formed by the Tribunal as to the need for the examination. That is a question for the Authority. It may be in some cases that oppressive conduct on the part of an Authority, and its effect upon an employee, could be relied upon as furnishing a reasonable excuse. Such a contention is not advanced here. 12 In my view, the Tribunal was in error in determining that an excuse was provided by the opinion it formed. There will be orders setting aside the determinations. Since Mr Rodriguez did not proffer another reason for the Tribunal to consider, it is not necessary to require a reconsideration. There will be a further order that the proceedings in the Tribunal be stayed until the notice under s 57 has been complied with. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.