FEDERAL COURT OF AUSTRALIA

Kulas v Prosegur Australia Pty Ltd [2017] FCA 85

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PAGONE J:

1    This is an appeal by Mr Kulas from a decision of the Administrative Appeals Tribunal affirming a decision to suspend his rights to compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the Rehabilitation Act”) on the basis that he had failed to comply with his rehabilitation program. Mr Kulas contended on appeal that the Tribunal had erroneously failed to allow him to rely upon psychiatric or psychological reports which he had sought to tender, and also that the Tribunal had erroneously received into evidence video recordings of CCTV footage which he had not seen before the hearing.

2    Mr Kulas suffered an injury on 22 June 2011 in his employment with Prosegur Australia Pty Limited (“Prosegur”). At the time of the injury he had been employed as an armoured vehicle operator in Prosegur’s security business. The injury he sustained was described by the Tribunal as being of a low back strain and L5/S1 disc protrusion with left S1 nerve root compression, together with a C6/7 stenosis secondary to pre-existing spondylitic changes. Prosegur accepted liability for the injury and Mr Kulas did not return to normal vehicle operator duties after the injury. Mr Kulas performed mainly administrative and other roles in Prosegur’s control room from February 2014.

3    On 4 July 2014 a determination was made pursuant to s 37(1) of the Rehabilitation Act requiring Mr Kulas “to perform modified suitable duties on pre injury hours” while attending adjustment counselling and undertaking an exercise program as advised by Dr Turnbull, who was Mr Kulas’ treating general practitioner. Section 37 of the Rehabilitation Act provides:

37    Provision of rehabilitation programs

(1)    A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program.

(2)    If a rehabilitation authority makes a determination under subsection (1), the authority may:

(a)    provide a rehabilitation program for the employee itself; or

(b)    make arrangements with an approved program provider for that provider to provide a rehabilitation program for the employee.

Note:    A rehabilitation program that is being provided to a person under this section might cease if the person is also provided with rehabilitation under the MRCA (see section 18 of the CTPA).

(2A)    A determination under subsection (1) is not a legislative instrument.

(3)    In making a determination under subsection (1), a rehabilitation authority shall have regard to:

(a)    any written assessment given under subsection 36(8);

(b)    any reduction in the future liability to pay compensation if the program is undertaken;

(c)    the cost of the program;

(d)    any improvement in the employee’s opportunity to be employed after completing the program;

(e)    the likely psychological effect on the employee of not providing the program;

(f)    the employee’s attitude to the program;

(g)    the relative merits of any alternative and appropriate rehabilitation program; and

(h)    any other relevant matter.

(4)    The cost of any rehabilitation program provided for an employee under this section shall be paid by the relevant authority in relation to that employee.

(5)    Where an employee is undertaking a rehabilitation program under this section, compensation is not payable to the employee under section 19 or 31 but:

(a)    if the employee is undertaking a full‑time program—compensation is payable to the person of an amount per week equal to the amount per week of the compensation that would, but for this subsection, have been payable under section 19 if the incapacity referred to in that section had continued throughout the period of the program; or

(b)    if the employee is undertaking a part‑time program—compensation is payable to the employee of such amount per week as the relevant authority determines, being an amount not less than the amount per week of the compensation that, but for this subsection, would have been payable to the employee under this Act and not greater than the amount per week of the compensation that would have been payable under paragraph (a) if the employee had been undertaking a full‑time program.

(7)    Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, 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 employee begins to undertake the program.

(7A)    However, subsection (7) does not operate to suspend the employee’s right to compensation for the cost of medical treatment that is payable under section 16.

(8)    Where an employee’s right to compensation is suspended under subsection (7), compensation is not payable in respect of the period of the suspension.

The final goal of the rehabilitation program was described in the rehabilitation program to be for “Mr Kulas to perform permanently modified suitable duties on pre injury hours with Prosegur”. The program start date was 10 July 2014 and the program end date was 31 October 2014. The duties he was to perform were described in the rehabilitation program to be modified duties incorporating the following restrictions:

lifting up to 6kg; sitting and standing as tolerated; resting and stretching as required; no work on armoured vehicles.

Mr Kulas did not seek a review of the determination but he did not undertake the rehabilitation program.

4    On 18 July 2014 Prosegur wrote to Mr Kulas stating that he had failed to undertake the rehabilitation program and, in particular, that he had failed to attend work for the required 7.9 hours a day on any day. The letter of 18 July 2014 also informed Mr Kulas that s 37(7) of the Rehabilitation Act provided for the suspension of compensation if he refused or failed, without reasonable excuse, to undertake the rehabilitation program. The letter requested that Mr Kulas provide his explanation or reasons for not undertaking his rehabilitation program and that he provide those reasons by Monday, 4 August 2014. The request specifically required his explanation or reasons for not attending work for the 7.9 hours required per day (that is, for the 39.49 hours per week) specified in the determination.

5    On 1 August 2014 Mr Kulas replied to Prosegur by saying that he had taken the “proposed return to work plan” to Dr Turnbull and that Mr Kulas had been told by Dr Turnbull that he had not been consulted and that he would not sign it. The response from Mr Kulas went on to state that the proposed return to work plan was not a good plan and that he would not sign it. It also requested an assessment from Dr Ian Smith and Dr Mary White.

6    It is possible that Mr Kulas may have considered these matters to be responsive to a request for an explanation or reasons for not undertaking the rehabilitation program but on 7 August 2014 Prosegur wrote to Mr Kulas referring to the previous correspondence concerning the rehabilitation program stating that Mr Kulas had not provided a reasonable excuse for his failure to undertake the rehabilitation program. The letter from Prosegur went on to inform Mr Kulas that, accordingly, a determination had been made to suspend his rights to compensation under the Rehabilitation Act including his right to institute or continue any proceedings under the Rehabilitation Act in relation to compensation. The letter noted that the suspension would remain in place until such time as he commenced a rehabilitation program with the same essential content as the program which had been determined on 4 July 2014; that is, to “commence a rehabilitation program in which [he undertook] modified duties for 39.49 hours a week”. The letter of 7 August 2014 also informed Mr Kulas that the suspension of his rights to compensation did not also suspend his rights to compensation for the cost of medical treatment payable under s 16 of the Rehabilitation Act: see also Rehabilitation Act s 37(7A).

7    On 18 August 2014 Mr Kulas wrote a letter to Prosegur which was treated as a request for reconsideration of its decision to suspend his rights to compensation which had been suspended on the basis that he had not provided a reasonable excuse for failing to undertake the rehabilitation program. The letter from Mr Kulas did not provide an explanation or reasons for not undertaking the rehabilitation program although it can be inferred from his letter that he did not consider the rehabilitation program to be appropriate. In his letter, for example, he referred to Dr Turnbull’s disagreement with the proposed plan.

8    On 28 August 2014 Prosegur wrote to Mr Kulas referring to his letter of 18 August 2014 (which, as mentioned, had been taken to be a request for reconsideration of the suspension decision which had been made on 7 August 2014) and informed Mr Kulas that it had been decided to affirm the 7 August 2014 determination to suspend his rights to compensation under the Rehabilitation Act. The letter from Prosegur specifically informed Mr Kulas that his reconsideration request had provided “no explanation or excuse which assist[ed] with [the] review of the determination of 7 August 2014. In particular, it [did] not provide any reasonable excuse for [his] failure to undertake the rehabilitation program provided for [Mr Kulas]”. The last page of the letter from Prosegur informed Mr Kulas of his entitlement to apply to the Tribunal for a review of the decision. Mr Kulas applied on 8 September 2014 to the Tribunal for a review of the decision.

9    The application by Mr Kulas to the Tribunal was heard in March 2016, and on 27 July 2016 the Tribunal affirmed the decision which suspended his compensation. The issue to be decided by the Tribunal was not whether the determination which had been made on 4 July 2014 should be reviewed but whether Mr Kulas had a reasonable excuse, as contemplated by s 37(7) of the Rehabilitation Act, for having refused or failed to undertake the rehabilitation program. The Tribunal at [27] noted the differences in the contentions about the extent to which Mr Kulas had worked with Prosegur after the determination of 4 July 2014, but found that Mr Kulas did not undertake the rehabilitation program. Indeed, Mr Kulas did not contend to the Tribunal, or to the Court on appeal, that he had complied with the rehabilitation program. Mr Kulas contended, in effect, that his reasonable excuse was that the rehabilitation program was not appropriate for his condition although he had not sought to have the determination reviewed. His letter of 1 August 2014 had stated that he had taken the rehabilitation program to Dr Turnbull and that he had been informed by Dr Turnbull that he had not been consulted and would not sign the rehabilitation plan. Mr Kulas also stated in his response of 1 August 2014 that the program was “not a good plan” and that he would not sign it. His subsequent letter of 18 August 2014 had repeated that Dr Turnbull did not agree with the proposed plan and that Mr Kulas also did not agree with it. The statement of facts issues and contentions prepared by Mr Kulas for the hearing by the Tribunal specifically referred to Dr Turnbull’s “actions” as a reasonable excuse and stated that if his treating general practitioner did not believe the rehabilitation plan was worthy of being signed then he could reasonably act by not signing it himself.

10    The Tribunal affirmed the decision suspending compensation to Mr Kulas on the basis that the Tribunal was not satisfied on the evidence that Mr Kulas had a reasonable excuse for having refused or failed to undertake the return to work program. In reaching that decision the Tribunal heard evidence, including the evidence of Mr Kulas and Dr Turnbull, but had excluded from evidence two reports containing psychiatric or psychological evidence that Mr Kulas produced close to the commencement of the hearing which had been due to start on 7 March 2016. The Tribunal also had regard to video recordings of CCTV footage of Mr Kulas working on lighter duties which Mr Kulas had not seen before the hearing. Mr Kulas maintained on appeal that the Tribunal erred in failing to permit him to rely upon the psychiatric or psychological reports and in allowing Prosegur to rely upon the evidence of the video recordings of the CCTV footage.

11    The appeal to this Court was brought under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) which requires there to be, and limits the appeal to, questions of law: see Brown v Repatriation Commission (1985) 7 FCR 302 at 304; TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178. Whether the appeal raises questions of law is to be approached as a matter of substance rather than of form, and in cases of doubt, that may require the Court to consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context, and the Tribunal’s reasons for its decision: see Haritos v Commissioner of Taxation (2015) 233 FCR 315 at [62(6)] and [94].

12    The notice of appeal in this proceeding was prepared by a litigant in person without legal training and not by a qualified or trained lawyer. The questions of law described in the notice of appeal were expressed as follows:

1.    Whether procedural errors occurred in the Tribunal’s decision with regard to the failure to admit Applicants evidence as per Point 5.of the decision subject to application of AAT Act S33 1(b), (c). The evidence to intended to be included was psychiatric and psychological medical reports which the Applicant contends would have met the terms of SRC Act S 37(7) – “refuses or fails, without reasonable excuse, to undertake a rehabilitation program” ‘reasonable excuse’.

2.    Whether procedural errors occurred in the Tribunal’s decision with regard to allowing the Respondent to submit evidence as per Point 15. of the decision. The Respondent failed to provide access to the video on the as per the directions of the confidentiality order in breach of AAT Act S35 (4). Access to the video was unduly delayed until FEB 2016 the day prior to the directions telephone hearing, ambushing the Applicant, where such an outcome was in breach of AAT Act S68(2)(a)

3.    Whether points 1. and 2. above in combination and by the perversity of the findings in their contrast, were a procedural error and in breach of the AAT Act S2A (a), (b), (c).

The substance of these questions of law, bearing in mind that they were written by a litigant in person without legal training, are to the effect that the Tribunal was legally incorrect in (a) failing to allow Mr Kulas to rely upon the psychiatric and psychological medical reports, and (b) to have decided against Mr Kulas in circumstances where Prosegur had failed to provide him with access to the video of CCTV footage before the hearing.

13    The first ground in the appeal is whether the Tribunal was in error by refusing to allow Mr Kulas to rely upon the psychiatric or psychological medical reports which Mr Kulas sought to rely upon. The Tribunal had a discretion about whether to allow Mr Kulas to rely upon material which he sought to introduce at a late stage. Section 2A of the AAT Act obliged the Tribunal to pursue objectives including the provision of a mechanism of review that is “fair, just, economical, informal and quick”. Section 2A provides:

2A    Tribunal’s objective

In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

(a)    is accessible; and

(b)    is fair, just, economical, informal and quick; and

(c)    is proportionate to the importance and complexity of the matter; and

(d)    promotes public trust and confidence in the decision‑making of the Tribunal.

The material which Mr Kulas sought to rely upon at the hearing which was to commence on 7 March 2016 had been produced by him to Prosegur on 1 March 2016. The Tribunal had previously made directions for the filing of material which he had not complied with. The application for review by Mr Kulas to the Tribunal was lodged on 8 September 2014, and on 23 July 2015 the Tribunal had made directions for the filing of statements of facts, issues and contention, and for all reports, records, and other documents to be relied upon, to be given on or before 5 October 2015. On 27 August 2015 the matter was listed for a three day hearing to commence on 7 March 2016. On 28 September 2015 the Tribunal varied the directions which had been given on 23 July 2015 to extend to 30 November 2015 the time by which Mr Kulas was to give to the Tribunal, and to Prosegur, his statement of facts, issues and contentions and “all reports, records and other documents he [would] seek to rely on at the hearing”. Mr Kulas thereafter sought further time in which to file his statement of facts, issues and contentions, and on 10 December 2015 the Tribunal varied its earlier directions and directed Mr Kulas as follows:

On or before 30 December 2015 the Applicant must give to the Tribunal and the Respondent a Statement of Facts and Contentions (that is a written summary of the facts and arguments the Applicant relies on to support the view that the decision under review is not correct) and all reports, records and other documents he will seek to rely on at the hearing.

Mr Kulas subsequently filed a statement of facts, issues and contentions dated 29 December 2015 and on 30 December 2015 Mr Kulas filed documents including a report by a neurosurgeon, Dr Jithoo, dated 27 April 2015.

14    On 1 March 2016 Mr Kulas, without the Tribunal’s leave, provided a bundle of some 61 documents to Prosegur including a report of Dr Udovicic, a psychiatrist, dated 26 February 2016 diagnosing Mr Kulas as suffering from a “depressive disorder due to another medical condition (work related back injury resulting in chronic pain and significant physical disability) with marked depressive features and anxiety attacks”. Prosegur objected to the use of that report at that late stage in proceedings which were then due to commence to be heard the following week. Prosegur informed Mr Kulas on 1 March 2016 by express post letter that it would be objecting to Mr Kulas calling any evidence, or the tender of any material, from Dr Udovicic at the hearing of the application the following week because it was a new opinion and Prosegur had not had the opportunity to have Mr Kulas independently assessed by a psychiatrist.

15    Mr Kulas also indicated in an email on 25 February 2016 that he wished to rely upon the evidence of a Dr Mitchell at the hearing. Neither Dr Udovicic nor Dr Mitchell had previously been nominated by Mr Kulas as experts from whom opinion evidence was to be relied at the hearing. There had been a reference to Dr Mitchell in an opinion previously given by Dr Jithoo, and Mr Kulas had provided a report from Dr Mitchell dated 13 November 2015 which included a reference to the possibility of a complex regional pain syndrome, but without a diagnosis of that condition at that time and without Mr Kulas having previously contended that a psychiatric or psychological condition provided a reasonable excuse for him not complying with the rehabilitation program. Indeed, neither the report from Dr Udovicic nor the report from Dr Mitchell had addressed the psychiatric or psychological condition as an explanation for not complying with the rehabilitation program.

16    Prosegur contended at the appeal, with justification, that Mr Kulas had not previously relied upon a psychiatric or psychological condition as a reasonable justification for not having complied with the rehabilitation program. His injury had been a pinched nerve in the lower back through lower back strain and none of the material relied upon by Mr Kulas until 1 March 2016 had raised a psychiatric or psychological condition as a justification for not complying with the rehabilitation program.

17    The Tribunal held a directions hearing on 4 March 2016 to deal with the issue which had been raised in the correspondence between Mr Kulas and Prosegur concerning the ability of Mr Kulas to rely upon the evidence of Dr Udovicic and Dr Mitchell. The Tribunal concluded at the hearing on 4 March 2016 that “the two medical reports [had] been sought to be filed late” and informed Mr Kulas that he would not be allowed to rely upon the reports at the hearing to commence on 7 March 2016 saying:

[…] I am satisfied that the documents in question, the two medical reports have been sought to be filed late. I note the provisions of section 66(1) and I also note the directions which were made extending the time for filing to 30 December. It’s highly prejudicial to have these produced at this stage. I cannot see – and there’s no obvious connection between those and the decision under review which is a return to work issue. I’m not going to allow these reports in and the hearing will proceed. […]

The hearing commenced the following Monday as scheduled and Mr Kulas was not permitted to rely upon the psychiatric or psychological reports. The Tribunal recorded this in its reasons at [5]-[7]:

5    At a telephone directions hearing held on 4 March 2016, the Tribunal had ruled that the Applicant could not introduce late stage psychiatric or psychological evidence. Such evidence was sought to be introduced in disregard of directions clearly made. The Applicant had had plenty of time to introduce such evidence but had not sought to do so any earlier than shortly before the hearing. The Respondent objected to the introduction of such evidence.

6    In my view, introduction of such evidence at that late stage would have caused significant prejudice to the Respondent. Unless the case was adjourned at great cost, the Respondent would have had no opportunity to respond to the new evidence. I regarded both such situations as unfair.

7    I carefully considered what the Applicant said on his own behalf, in relation to this point. I saw no reason why he could not reasonably have acted earlier, in accordance with directions, unless possibly he was intending to ambush the Respondent with the material.

It was submitted for Prosegur that the Tribunal was correct in its decision as a matter of case management in accordance with AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.

18    Appeals of this kind are not concerned with whether the appellate court would have exercised the discretion differently but, rather, with whether the decision of the Tribunal was legally incorrect. It is conceivable that Mr Kulas had a psychological or psychiatric condition that might have provided him with a reasonable excuse for not undertaking the rehabilitation program but that had not been his case before the Tribunal. The report from Dr Udovicic did not say that the psychiatric or psychological condition of Mr Kulas provided a foundation for Mr Kulas not complying with the rehabilitation program, although it is conceivable that Dr Udovicic might have expressed such an opinion if he had been asked. The report from Dr Mitchell had not contained a diagnosis that Mr Kulas had a psychiatric or psychological condition preventing him from carrying out his planned rehabilitation duties although it too might have provided support for that conclusion if the issue had been considered by Dr Mitchell. The Tribunal, however, was not in error in exercising its discretion not to admit the two reports, or other evidence from Dr Udovicic and Dr Mitchell, at the hearing on an issue which had not previously been raised and which Prosegur was not in a position to deal with in the limited time available before the hearing which was due to commence on 7 March 2016. The issue before the Tribunal was whether Mr Kulas had a reasonable excuse, for the purposes of s 37(7) of the Rehabilitation Act, for not carrying out his planned rehabilitation for 39.49 hours per week. His claim had been that the rehabilitation plan was inappropriate but he had not previously contended that he could not carry out the planned rehabilitation duties because of a psychiatric or psychological condition. He had previously relied upon the fact that Dr Turnbull had refused to sign the rehabilitation plan but not that it was a psychological or psychiatric condition that prevented him from complying with the plan. Dr Turnbull gave evidence to the Tribunal but his evidence was not that a psychiatric or psychological condition provided a reasonable excuse for Mr Kulas’ failure to comply with the plan but, rather, the evidence of Dr Turnbull was that Mr Kulas had presented as being in pain. Accordingly, there is no substance in the first ground relied upon by Mr Kulas.

19    The second ground in the appeal by Mr Kulas concerned his claim of lack of access to some 24 hours of recorded video of CCTV footage of him performing work in the control room after his injury. That was the work he had been required to perform to accommodate his injury, being work which Mr Kulas claimed that he was unable to undertake for 7.9 hours per day as required by the rehabilitation program. There was no serious dispute on the appeal about the work being very light work, but Mr Kulas maintained that he had been prevented from being able to view the footage before the Tribunal hearing.

20    The material in the appeal does not support the claim by Mr Kulas of having been prevented from viewing the CCTV footage before the hearing and there is no foundation to his claim of being denied procedural fairness in relation to his access to the CCTV footage. Prosegur relied upon the CCTV footage at the Tribunal hearing to enable the Tribunal to see the work that Mr Kulas was required to perform to assist in the Tribunal’s determination about whether he had a reasonable excuse for not undertaking that work for 7.9 hours per day as required by the rehabilitation program. On 28 January 2016 Prosegur had sought a confidentiality order from the Tribunal restricting the disclosure of the footage for reasons of security. The application for the order was made in a letter on behalf of Prosegur which concluded by saying that Prosegur could arrange for Mr Kulas “to view the footage at its premises at a mutually convenient time” in the event that a confidentiality order was made known. On 16 February 2016 the Tribunal made a direction restricting access to the footage in the following terms:

The Tribunal DIRECTS, pursuant to section 35(1) of the Administrative Appeals Tribunal Act 1975, that the USB containing the footage of the control room at the respondent’s Clayton South depot be restricted to the following:

(a)    to the members and staff of the Tribunal in the course of performing their duties;

(b)    expert medical witnesses (if required);

(c)    to the Tribunal transcription services in the course of performing their duties; and

(d)    to the parties and to the representatives of the parties.

The solicitors for Prosegur then wrote to Mr Kulas on 23 February 2016 inviting him to view the footage at the Clayton depot by contacting Mr Robert McLellan at a specified telephone number.

21    Mr Kulas said at the hearing of the appeal that he had made two attempts to access the footage on 29 February and 1 March 2016 but that he had not been able to see the footage because he was told that there had been no one able to supervise him. Counsel for Prosegur correctly observed that the claim by Mr Kulas of having attempted to see the video footage on two occasions had not previously been made and that it was contrary to other otherwise uncontradicted evidence in the appeal. The evidence for Prosegur was that there had been no contact from Mr Kulas to view the video footage before the hearing and that on 2 March 2016 a Mr McLellan, on behalf of Prosegur, had taken the initiative of contacting Mr Kulas at 9.30am to inform him that he could view the video footage. Mr McLellan recorded his conversation with Mr Kulas in an internal email in which he wrote:

I contacted the above namely Mr Kulas at 0930 and informed him of the video footage that he may view. He stated that he did not have the time and also stated that I must enjoy watching it. He also said that I must keep the footage and when he is ready to view it he will contact me.

Mr Kulas was also given an opportunity during the hearing by the Tribunal to take home the USB containing the footage to view the footage at home but he did not do so. He stated at the hearing of the appeal that the footage went for 24 hours and he would not have had sufficient time overnight during the days of the Tribunal hearing to view 24 hours of footage. That explanation, however, does not gainsay that he had the opportunity to view the footage but that he made no attempt to look at any of the footage when it was offered to him during the conduct of the hearing.

22    It is unnecessary to deal separately with the third enumerated ground of appeal as it raises no separate or additional question of law but only expresses his dissatisfaction with the decision of the Tribunal: see Kowalski v Chief Executive Officer Medicare Australia (2010) 185 FCR 42 at [38].

23    Accordingly, the appeal will be dismissed.

Associate:

Dated:    10 February 2017