Clement v Comcare

THE ADJR ACT CLAIMS AGAINST COMCARE 10 In proceeding ACD 5 of 2007, the Applicant seeks review under the ADJR Act of various decisions of Comcare relating to her entitlement to compensation under the Compensation Act in respect of incapacity for work for the period 1 September 1994 to 10 November 2006. The primary decision of Comcare under review was made on 2 January 2007, whereby Comcare affirmed its determination of 2 November 2006 that the Applicant is not entitled to compensation for the period 25 August 2006 to 10 November 2006. The Applicant also seeks review of what are described as "related, connected, associated and entwined decisions" of Comcare as follows: · Determination dated 13 December 2005, which disallowed the Applicant's claim for back payment of compensation for the period 1 September 1994 to 15 June 2004. · Reconsideration decision dated 17 March 2006, which affirmed Comcare's determination dated 13 December 2005. · Reconsideration on own motion dated 23 June 2006 revoking the Applicant's entitlement to compensation for the period 11 June 2004 to 24 August 2006. 11 In proceeding ACD 19 of 2007, the Applicant seeks review under the ADJR Act of the decision of Comcare made on 1 May 2007 affirming its determination of 22 January 2007 that the Applicant is not entitled to compensation under the Compensation Act in respect of incapacity for work for the period 10 November 2006 to 10 February 2007. 12 Clearly enough, the decisions in both proceedings cover much the same ground. That is to say, the primary question appears to be whether the Applicant is entitled to compensation as a result of incapacity for work with the Bureau. The only difference appears to be the period of any incapacity.

The Substantive ADJR Grounds 13 The amended application of 7 September 2007 claimed orders that the various decisions of Comcare under review were null and void ab initio. Particulars of grounds in s 5(1) of the ADJR Act are set out in 27 paragraphs covering some 26 pages. 14 In her written submissions, the Applicant begins by asserting that she has a "perfectly good Application under the ADJR Act with many well based grounds warranting review". The Applicant then makes assertions concerning the circumstances of her employment by the Bureau. She says that, in the course of performing the duties of her position with the Bureau, she reported to Bureau managers that certain data was not secured from unauthorised access and that the Bureau refused to secure the data, injuring the Applicant instead. The submissions recount in some detail the course of the Applicant's claim for compensation. 15 In the balance of her written submissions, the Applicant deals with the grounds in s 5(1) of the ADJR Act that are mentioned in her proposed amended application. In dealing with most of the grounds of review in s 5(1), the Applicant makes the following assertions: · Commonwealth business records available to the decision makers prove the Applicant was requested to report on the security of sensitive Bureau data. · The records show that the Applicant reported that the data was not secure and required securing immediately. · The records show that the Bureau would not secure the data but claimed some 18 months later to have then secured the sensitive data. · Comcare's psychiatrists were not informed of those facts, which was a breach of procedural fairness. · That concealment of crucial information rendered the reports of the psychiatrists invalid. The submissions allege that the concealment from the psychiatrists of that "crucial information" about the cause and continuance of the Applicant's injury gives rise to each of the relevant grounds. Such submissions demonstrate a misconception as to the nature of judicial review under the ADJR Act. I shall say something about each of the grounds on which the Applicant relies. 16 In relation to s 5(1)(a) of the ADJR Act, the Applicant asserts breaches of the rules of natural justice because she was not given an opportunity to comment upon adverse material that was relied on by Comcare. The Applicant also alleges that the reasons cited as the basis for the decision are so deficient that they prove bias. 17 The Compensation Act does not expressly require that a claimant be given any opportunity to comment before a determination as to an entitlement to compensation is made. Provision is made for a mechanism whereby a claim for compensation may be made together with supporting documentation. The rules of natural justice do not require a decision maker to provide an opportunity to comment prior to each decision being made under the regime contemplated by the Compensation Act. 18 There are also extensive particulars of alleged bias, which is not referred to in s 5(1)(a) of the ADJR Act. The particulars of bias begin by an assertion that Ms Sandra McMillan, a decision maker with Comcare, was biased because she had an interest in defending an earlier decision that she had made. However, there is nothing in the Compensation Act that prohibits a person who has made a primary determination pursuant to s 60 in respect of a claim for compensation from making further determinations at that level in respect of the same claimant. Section 62, on the other hand, provides that the independent review officer must be a person other than the person who made, or was involved in the making of, the primary determination. 19 Next, in relation to s 5(1)(b), the Applicant alleges that procedures that were required by law to be observed in connection with the making of the decision were not observed. She says that Comcare was required to advise her of adverse material and give her the opportunity to reply to it. This is a repetition of the allegations made in relation to s 5(1)(a), since it also alleges a conflict of interest on the part of the decision maker, Ms Sandra McMillan. 20 The Compensation Act sets out the procedures for making a claim for compensation and the making of a decision in respect of such a claim. Under s 54, compensation is not payable unless a claim is made. Section 57 provides that Comcare may require a claimant to undergo an examination by a medical practitioner. Section 61 requires that Comcare provide the claimant with notice in writing of its decision and the reasons for decision. Section 62 authorises Comcare to reconsider a determination either on its own motion or on request of the claimant. Section 63 requires the person who makes the reconsideration decision to provide the claimant with notice in writing of the decision, the reasons for the decision and the availability of review by the Tribunal. The Applicant does not assert that any of those procedures was not followed. 21 Next, in purported reliance on s 5(1)(d), the Applicant alleges that the decision was not authorised by the Compensation Act, because the Compensation Act does not authorise Comcare to make errors of law, ignore relevant material, rely on irrelevant material or act with bias or for improper purposes. Those allegations indicate a misapprehension of the ground in question. 22 In relation to s 5(1)(e) the Applicant alleges that the making of the decision was an improper exercise of power because Comcare fell into errors of law, ignored relevant material, relied on irrelevant material and acted with bias and for improper purposes. 23 The Applicant then sets out particulars of grounds in s 5(2)(a). The Applicant alleges, under s 5(2)(a), that the following irrelevant considerations were taken into account: · a fundamentally flawed report of August 2004 containing serious errors of fact; · a motor vehicle accident of the Applicant in 1988; · false work reports about the Applicant; · that the Applicant was suffering from a delusion or was paranoid; · the Applicant's alleged redundancy of 1 September 1994. 24 The circumstances surrounding the cessation of the Applicant's employment with the Bureau and, in particular, her capacity for work at that time, would be relevant considerations in determining any ongoing entitlement to compensation under the Compensation Act. There is nothing in the particulars to explain why the so called irrelevant matters should not have been considered in the context of the Applicant's entitlement to compensation. Whether the facts are true, of course, is a different question and not a matter to be investigated on judicial review. 25 Under s 5(2)(b), the Applicant alleges that Comcare failed to take into account relevant considerations. Some forty particulars are provided, which are no more than substantive contentions as to the merit of the Applicant's case in support of her claim for compensation. 26 Under s 5(2)(c), the Applicant alleges that the power was exercised for a purpose other than that for which it was conferred because it was exercised for improper purposes and illegally. The Applicant alleges that the power was exercised to cover up breaches of the law and to defeat the Applicant's claim for back pay. No particulars are provided. 27 Under s 5(2)(d), the Applicant also alleges that the power was exercised in bad faith for improper purposes and illegally. The Applicant alleges that all decisions by Comcare were made for the purposes of covering up its conspiracy with the Bureau to eject the Applicant from her employment. 28 Under s 5(2)(e), there is an allegation of an exercise of a personal discretionary power at the direction or behest of another person: the Applicant alleges that Comcare's powers were exercised at the direction or behest of the Bureau and to cover up diverse legal breaches by the Bureau. That is followed by an assertion under s 5(2)(f), that there was an exercise of a discretionary power in accordance with a rule or policy without regard to the merits, in that the special circumstances of the Applicant's case were not given proper merit and weight: the Bureau's motive was to cover up various breaches of the law and defeat the Applicant's application for compensation and back pay. There is no indication as to how the Bureau influenced decisions by Comcare. 29 In relation to s 5(2)(g), the Applicant says that the exercise of power was so unreasonable that no reasonable person could have exercised the power because Comcare knew that the Bureau had caused the Applicant's work related stress reactive depression. That is no more than a complaint about the merits. 30 Finally, in relation to s 5(2)(j), the Applicant alleges that there were exercises of power in a way that constituted an abuse of power because the power was exercised for improper purposes and illegally and was vitiated by errors of law and jurisdictional errors, in so far as the powers were exercised for the improper purpose of covering up diverse breaches of the law and to defeat the Applicant's claim for compensation and back pay. That is no more than a summary of other grounds. 31 The amended application then reverts to the paragraphs of s 5(1). The Applicant asserts, in reliance on s 5(1)(f), that the decision involves errors of law. Some 27 particulars are provided, most of which on their face do not constitute errors of law. Many of the particulars are simply references to legislation and documents without any attempt to formulate an error. Other particulars are mere assertions without formulation of any error of law on the part of Comcare. For example, the Applicant alleges that it was an error of law: · to apply duress to cause the Applicant to leave her employment; · to fundamentally breach the Applicant's employment contract; · to deprive the Applicant of her Constitutional right to just compensation for deprivation of her property right of employment. Those are not assertions of error of law on the part of Comcare but substantive complaints about the conduct of the Bureau. 32 Next, reliance is placed on s 5(1)(g), in so far as it is alleged that the decision was induced and affected by fraud. Section 5(1)(g) requires that it be established that the decision was actually induced or affected by fraud. The Applicant asserts that the decision was induced by fraudulent concealment by Comcare of relevant matters in their briefings of psychiatrists. None of the matters alleged to have been concealed by Comcare is relevant to the issue of whether the Applicant was entitled to compensation under the Compensation Act. Accordingly, there was no need for those matters to be disclosed to any psychiatrist examining the Applicant. There is no reason to doubt that the Applicant had an opportunity to raise with an examining psychiatrist any matter that she thought relevant. An examining medical practitioner would normally provide a report on the basis of all material provided, including the history taken from the patient. The particulars do not demonstrate in any fashion how concealment of the alleged matters could have produced a false report from a psychiatrist examining the Applicant. 33 Finally, the Applicant asserts, in reliance on s 5(1)(h), that there was no evidence or other material to justify the making of the decision. The Applicant asserts that the decision makers acted with no probative evidence and there was an absence of evidence that could reasonably satisfy the decision makers that relevant matters were established. The Applicant also asserts that there is no probative evidence that the Applicant's injury was not connected to work. There are no particulars. 34 The material that I have briefly summarised above indicates that the author of the amended application has no real comprehension of the nature of judicial review that is authorised by the ADJR Act. I am unable to discern identifiable grounds within s 5(1) of the ADJR Act upon which the decisions under review would be set aside. However, it is not necessary to form a final view on the propsects of success of any of the grounds, since I would refuse any relief on the discretionary ground in s 10(2)(b)(ii) of the ADJR Act.

Discretionary Refusal of Relief 35 Section 62 of the Compensation Act relevantly provides that Comcare may reconsider a decision on request from the compensation claimant. Section 64 of the Compensation Act confers on the Administrative Appeals Tribunal (the Tribunal) authority to review decisions made under s 62 of the Compensation Act. 36 The Applicant requested review under s 62 of Comcare's decisions of: · 2 November 2006, which give rise to the decision of 2 January 2007; and · 22 January 2007, which gave rise to the decision of 1 May 2007. The decisions of 2 January 2007 and 1 May 2007 are decisions made under s 62. Accordingly, the Applicant has a right to apply to the Tribunal for review of each of those decisions under s 64 of the Compensation Act. 37 In a proceeding under s 64, the Tribunal has jurisdiction to review the merits of the decisions of Comcare under review. The Tribunal would, in the ordinary course, receive evidence, including expert medical evidence, and submissions on behalf of both parties and would then make a decision, on the merits, concerning the Applicant's entitlement to compensation under the Compensation Act. Review by the Tribunal of Comcare's decisions has no costs implications for the Applicant. 38 In all the circumstances, there appears to be no good reason why the Applicant should wish to pursue either proceeding ACD5 of 2007 or proceeding ACD19 of 2007, in so far as they seek judicial review of decisions that are reviewable, on the merits, by the Tribunal. Accordingly, I consider that the appropriate course, in the exercise of the Court's discretion, would be to refuse to grant any relief under the ADJR Act in relation to the decisions that are the subject of both proceedings. That course has the distinct advantage of avoiding a significant waste of costs and Court time in considering the voluminous and misconceived contentions advanced on behalf of the Applicant in support of relief under the ADJR Act. 39 Accordingly, proceeding ACD19 of 2007 should be dismissed. In addition, proceeding ACD5 of 2007 should be dismissed, in so far as it claims relief against Comcare under the ADJR Act.

THE OTHER CLAIMS IN PROCEEDING ACD 5 OF 2007 40 In proceeding ACD5 of 2007, the Applicant also claims further relief against Comcare, the Parliamentary Secretary, the Bureau and the Commonwealth under several different causes of action. Before dealing with the causes of action against Comcare, the Bureau and the Commonwealth, it is necessary to say something about the Applicant's claim against the Parliamentary Secretary.

The ADJR Act Claims Against the Parliamentary Secretary 41 The Applicant seeks relief under the ADJR Act in respect of the failure of the Parliamentary Secretary to make a decision whether to make an act of grace payment to the Applicant under s 33 of the Financial Management and Accountability Act 1997 (Cth). The Applicant asserts that the Parliamentary Secretary promised to consider such an application. The claim against the Parliamentary Secretary is formulated in paragraphs 25 to 27 inclusive and 30 to 35 inclusive of the proposed amended application of 7 September 2007. 42 The Applicant says that the claim against the Parliamentary Secretary arises out of, and relates to, and is connected with the subject matter of the decision of Comcare made on 2 January 2007. While it is not entirely clear, it appears that the Applicant seeks an act of grace payment of the amount of compensation that would be payable if she were to succeed in her proceedings. Such an act of grace payment, of course, could only be made if the Applicant is not otherwise entitled to compensation. That is the question that would be determined by the Tribunal in any review of Comcare's decisions under s 62 of the Compensation Act. 43 The proceeding as against the Parliamentary Secretary has been stood over for further directions on 14 February 2008, to enable the Parliamentary Secretary and the Applicant to agree on an appropriate statement of facts. However, in the meantime, an amended application should be filed making clear the basis of the relief claimed against the Parliamentary Secretary under the ADJR Act.

The Form of the Proposed Amended Application 44 The additional causes of action asserted in the further amended application of 7 September 2007 are dealt with under the following rubrics: · Relief for deprivation of right to employment without just compensation and for illegal termination of employment, against the Bureau and the Commonwealth; · Relief for breaches of statutory duty of care, against the Bureau; · Damages for deceit, against the Bureau; · Damages for deceit, against Comcare; · Damages for negligence, against the Bureau; · Damages for negligence, against Comcare. 45 The present form of the proposed amended application is virtually incomprehensible. It has clearly enough been put together by a cut and paste method without any attempt at careful checking and proofreading. I shall describe it briefly. 46 Paragraphs 1 to 24 of the amended application deal with the grounds of review under s 5 of the ADJR Act of Comcare's decisions. Paragraphs 28 and 29 then deal with the relief claimed against Comcare under the ADJR Act. In between, paragraphs 25, 26 and 27 refer to the failure of the Parliamentary Secretary to make a decision in relation to an act of grace payment. Paragraphs 30 to 35, which end on page 28, complete the claim against the Parliamentary Secretary under the ADJR Act. That exhausts the claims under the ADJR Act. 47 On the bottom half of page 28, there are several headings. The first is as follows: "JOINT JUDICIARY ACT APPLICATIONS UNDER SECTIONS 39B(1) and 39B(1A)(b) and (c)." Paragraphs 36 and 37 follow and assert that the Applicant seeks to join all claims for relief in the proceeding because, she says, they "arise out of, relate to, or are connected with the same subject matter". There are then three further headings as follows: " WRIT OF MANDAMUS Application under s 39B(1) of the Judiciary Act for Writ of Mandamus WRIT OF MANDAMUS" Paragraph 38 follows and asserts that the Applicant seeks a writ of Mandamus under s 39B(1) of the Judiciary Act. That is followed by twelve paragraphs dealing generally with the Applicant's position as a User Database Administrator with the Bureau. 48 At the end of those twelve paragraphs are two more headings as follows: " CONSTITUTIONAL MATTERS APPLICATION UNDER SECTION 39B(1A)(b) OF THE JUDICIARY ACT" Paragraphs 39, 40, 41 and 42 then follow with extensive subparagraphs. They contain claims for very substantial damages. For example, the Applicant claims damages of $1,500,000 for loss of wages, $700,000 for loss of superannuation entitlements, $550,000 in lost profits in real estate investments and $600,000 in lost employment, career and business opportunities. No particulars are given. 49 On page 37 of the proposed amended application there is a further heading as follows: "Claims for Relief for Breaches of Statutory Duty of Care by [the Bureau]" A second paragraph 31 follows. The second paragraph 31 contains 16 subparagraphs culminating in a claim for compensation and damages, including special, aggravated and exemplary damages, as previously claimed. 50 The second paragraph 31 is followed by a section headed as follows: "APPLICATIONS UNDER SECTION 32 OF THE FEDERAL COURT ACT: JOINDER OF CLAIMS" New paragraphs 41 to 44 inclusive follow, generally repeating the assertion that all of the claims are associated. Then there is another heading as follows: "APPLICATION UNDER INHERENT ACCRUED JURISDICTION" Paragraphs 47 to 53 then follow, generally repeating the assertion that all of the claims for relief are associated. 51 Then there is another heading as follows: "ATTACHED CLAIMS UNDER ACCRUED JURISDICTION" That is followed by two paragraphs numbered 54. The first paragraph 54 deals with "ATTACHED CLAIM FOR DECEIT BY [THE BUREAU]" and the second paragraph 54 deals with "ATTACHED CLAIM FOR DECEIT BY [COMCARE]". 52 Next, a set of paragraphs numbered 56 and 57 deals with "CLAIM FOR RELIEF FOR NEGLIGENCE AGAINST [THE BUREAU]" and another set of paragraphs, also numbered 56 and 57, deals with "ATTACHED CLAIM FOR RELIEF FOR NEGLIGENCE AGAINST COMARE". 53 Finally, paragraphs 66, 67 and 68 set out prayers for relief and orders, which appear to be, for the most part, against the Commonwealth. They are somewhat incomprehensible. 54 As I have said, Comcare, the Bureau and the Commonwealth have filed written submissions inviting the Court to deal with the additional causes of action under s 51A of the Federal Court Act, on the basis that they have no reasonable prospect of success. However, having regard to the observations that I have already made above concerning the form of the proposed further amended application, I find myself unable to comprehend the claims fully. It is difficult to deal with the causes of action on any meaningful basis. The amended application should be struck out as embarrassing.

The Prospects of Success of the Other Claims 55 To the extent that I understand the claims, I would be disposed to conclude that the claims, as presently formulated, have no reasonable prospect of success. I shall set out briefly my reasons for that somewhat provisional conclusion.

Deprivation of Right to Employment 56 The Applicant claims a writ of mandamus and, more particularly, relief under s 39B(1)(b) of the Judiciary Act 1901 (Cth). Both claims appear to be related to the Applicant's employment by the Bureau or by the Australian Statistician. 57 In order to obtain a writ of mandamus, the Applicant must identify some public duty or duty of a public nature that remains unperformed. The only duty alleged appears to be a duty to employ her. There is no public duty or duty of a public nature on the part of the Bureau or the Australian Statistician to employ or re-employ any person. There is no relevant duty owed to the Applicant by the Bureau or the Australian Statistician that can be compelled by mandamus. 58 In addition, the Applicant claims that she has a Constitutional right to just compensation for the deprivation of her right to be employed under her contract of employment. She refers specifically to s 51(xxxi) of the Constitution, which authorises the Parliament to make laws for the acquisition of property on just terms. The Applicant also refers to alleged illegal termination of her employment under the Public Service Act, made pursuant to s 67 of the Constitution. Section 67 of the Constitution provides that, until the Parliament otherwise provides, the appointment and removal of officers of the Executive Government is to be vested in the Governor-General in Council, unless the appointment is delegated by the Governor-General in Council, or by a law of the Commonwealth, to some other authority. The Parliament has otherwise provided for the appointment and removal of public servants through the passing of the Public Service Act 1922 (Cth) and, subsequently, the Public Service Act 1999 (Cth). 59 The Applicant was employed under the Public Service Act 1922. On 1 August 1994, the Applicant consented to receiving a notice of retirement under s 76W(1) of the Public Service Act 1922. A notice of retirement in respect of the Applicant was signed on 1 September 1994 and took effect from that date. The Applicant has not alleged that she did not receive the redundancy payments to which she was entitled. In any event, the Applicant has no right to be employed by the Commonwealth that could be characterised as property within the meaning of s 51(xxxi) of the Constitution. Accordingly, there has been no acquisition of property of the Applicant.

Breach of Statutory Duty of Care 60 The Applicant alleges that the Bureau owed duties to her under the Public Service Act 1922 and that those duties were owed within the two to three years prior to the commencement of the proceeding on 22 March 2007. The particulars of the alleged breaches of those duties are as follows: · unlawful use of personnel management practices and procedures required under the Public Service Act 1922; · procuring breaches by Comcare of the Compensation Act, the Privacy Act and the Crimes Act; · procuring the non-compliance of the Privacy Commission with its statutory duty; · ongoing breaches of s 16 of the Public Service Act relating to whistleblowers. 61 The first matter must refer to events that occurred, and therefore damage that was suffered, while the Applicant was employed by the Bureau. I have indicated, that employment ceased on 1 September 1994. On its face, the claim is Statute barred. The second and third matters do not appear to involve the Bureau. The final matter refers to s 16 of the Public Service Act 1999, which does not apply to the Applicant.

Deceit 62 To succeed in an action for damages for deceit against the Bureau or Comcare, the Applicant would need to establish the following elements: · the alleged wrongdoer made a false statement; · the alleged wrongdoer knew that the statement was false; · the statement was made with the intention of inducing the Applicant to act in reliance upon the statement; · the Applicant acted in reliance upon the statement; and · the Applicant suffered damage as a consequence of that reliance. 63 The false statements alleged against both the Bureau and Comcare were made and, in so far as it is possible to determine, any reliance by the Applicant on the false statements occurred, more than six years ago before the commencement of the proceeding. On the face of the claims, they are Statute barred.

Claims for Negligence 64 The Applicant does not identify any duty of care owed to her by the Bureau or any breach of such duty. The particulars furnished appear to relate to matters that occurred during the Applicant's employment by the Bureau or shortly thereafter. That employment ceased on 1 September 1994. On the face of it, therefore, the claims are Statute barred. 65 The particulars of the claim against Comcare are identical to the particulars provided in relation to the claim against the Bureau. None of the particulars appears to relate to matters concerning Comcare. The only duty of care that the Applicant claims was owed to her by Comcare was a duty to protect her from improprieties towards her by the Bureau. There is no such duty.

CONCLUSION 66 The document of 7 September 2007 is, at this stage, no more than a proposed further amended application. Leave to file it has not yet been granted. The Applicant should not have leave to file the proposed further amended application. In so far as the Registry has treated the document as having been filed, it should be struck out. 67 Since I propose to dismiss proceeding ACD5 of 2007 in so far as it seeks ADJR Act relief against Comcare, there would be no utility in permitting the Applicant to file a further document pleading, in some more comprehensible form, the various other claims against Comcare, the Bureau and the Commonwealth that are ventilated in the proposed further amended application. The claims in negligence, deceit and breach of duty are not appropriately appended to the judicial review proceeding as presently constituted. Proceeding ACD5 of 2007 should be dismissed in so far as it relates to those claims. 68 However, that dismissal should not operate as a bar. If the Applicant were to commence another proceeding, by filing a properly pleaded statement of claim in a court of competent jurisdiction, seeking damages for breach of a duty of care, for deceit or for negligence, it would be a matter for the relevant court to deal with any application made by the defendant or respondent to any such a proceeding. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Agent for the Applicant: Mr Howard-Smith

Solicitor for the First, Third and Fourth Respondents: Australian Government Solicitor

Solicitor for the Second and Fourth Respondents: Blake Dawson Date of Hearing: 1 November 2007

Date of Judgment: 20 December 2007