Comcare v Martinez

Interlocutory application 4 By an interlocutory application dated 20 February 2013 the Secretary, Department of Education, Employment and Workplace Relations sought leave to intervene in the proceedings, pursuant to rule 9.12 of the Federal Court Rules 2011. 5 The appeal itself is presently listed for hearing in Canberra on 3 May 2013. I listed this interlocutory application well in advance of the hearing of the appeal so that the parties and the proposed intervener know where they stand and unnecessary additional costs may be avoided or reduced. 6 Rule 9.12 of the Federal Court Rules 2011 provides: 9.12 Interveners (1) A person may apply to the Court for leave to intervene in a proceeding with such rights, privileges and liabilities (including liabilities for costs) as may be determined by the Court. (2) The Court may have regard to: (a) whether the intervener's contribution will be useful and different from the contribution of the parties to the proceeding; and (b) whether the intervention might unreasonably interfere with the ability of the parties to conduct the proceeding as the parties wish; and (c) any other matter that the Court considers relevant. (3) When giving leave, the Court may specify the form of assistance to be given by the intervener and the manner of participation of the intervener, including: (a) the matters that the intervener may raise; and (b) whether the intervener's submissions are to be oral, in writing, or both. Note 1 The Court may give leave subject to conditions - see rule 1.33. Note 2 The Court may appoint an amicus curiae. 7 An affidavit sworn by Alice McCormick, solicitor, dated 22 February 2013 was read in support of the application to intervene. Objection was taken to the relevance of subparagraphs (b), (c) and (d) summarised in [8] below but I admitted those paragraphs on this interlocutory application subject to relevance. 8 Ms McCormick says in her affidavit that the respondent is an employee of the Department of Education, Employment and Workplace Relations. The Secretary, Department of Education, Employment and Workplace Relations (DEEWR) wishes to intervene for the following reasons: (a) The decision of the Tribunal is based on findings concerning the conduct of a DEEWR employee, Ms Ward, in her capacity as the respondent's manager. In particular, the Tribunal found that Ms Ward had engaged in conduct which constituted bullying and that she did not give adequate consideration to the respondent's circumstances. DEEWR seeks to submit that the Tribunal gave Ms Ward and/or DEEWR no proper opportunity to respond to criticisms of Ms Ward's management. (b) The Tribunal's decision and the unfavourable findings relating to Ms Ward have been reported in the media. Therefore these proceedings directly concern the reputation of DEEWR and its employees (including in particular Ms Ward). (c) Decisions such as that of the Tribunal in the present case affect the financial position of DEEWR. Comcare charges annual premiums to each entity and Commonwealth authority (including DEEWR) covered by the SRC Act. Each agency's premium is determined in response to the agency's claims performance. (d) According to a Comcare document, psychological injury claims are a significant driver of workers' compensation costs as these claims tend to involve longer periods of time off work and higher medical, legal and other claim payments than other forms of injury. 9 Ms McCormick deposes that DEEWR does not intend to adduce any evidence in the proceedings. She anticipates that its submissions will be supportive of the position of Comcare. She is instructed that DEEWR is prepared to frame its submissions so as to minimise repetition of arguments advanced by Comcare.

Submissions 10 The application to intervene was opposed by the respondent. Comcare's position was neutral. 11 The applicant to intervene referred to Roadshow Films Pty Ltd v iiNet Ltd (2011) 284 ALR 222 at [2] where the High Court said: [2] In determining whether to allow a non-party intervention the following considerations, reflected in the observations of Brennan CJ in Levy v Victoria (1997) 189 CLR 579 at 600-5, are relevant. A non-party whose interests would be directly affected by a decision in the proceeding, that is one who would be bound by the decision, is entitled to intervene to protect the interest likely to be affected. A non-party whose legal interest, for example, in other pending litigation is likely to be affected substantially by the outcome of the proceedings in this court will satisfy a precondition for leave to intervene. Intervention will not ordinarily be supported by an indirect or contingent affection of legal interests following from the extra-curial operation of the principles enunciated in the decision of the court or their effect upon future litigation. 12 I would add the succeeding paragraph as well: [3] Where a person having the necessary legal interest can show that the parties to the particular proceedings may not present fully the submissions on a particular issue, being submissions which the court should have to assist it to reach a correct determination, the court may exercise its jurisdiction by granting leave to intervene, albeit subject to such limitations and conditions as to costs as between all parties as it sees fit to impose. 13 I was also referred by the applicant to intervene to the judgment of the Victorian Court of Appeal in British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524 as follows: [11] … We heard not only argument from the parties (to whom we shall continue to refer as plaintiff and defendant), but also (in support of the appeal) argument on behalf of Brian Thomas Wilson, a solicitor whose conduct was much criticised by the trial judge. Leave to Mr Wilson to make submissions had been granted on 26 July last. In addition to the oral argument, we had from both plaintiff and defendant comprehensive summaries and from them and Mr Wilson very lengthy and detailed submissions …. (footnote omitted) 14 The applicant to intervene, the Secretary, submitted that she had an interest in the resolution of the proceedings as a non-party whose interest was directly affected. The proposed intervener had a financial stake, indirectly, in the outcome of the appeal. More significant on the application to intervene were the Tribunal's findings made at [87]-[92] of its reasons, those characterisations being capable of having an impact on the reputation of the Department and of the officer. Reference was made to Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 as showing that reputation could found an obligation to afford procedural fairness so as to found standing to seek orders setting aside a decision made without affording procedural fairness. 15 The applicant to intervene accepted however that her application invoked the Court's discretion. 16 The applicant to intervene also submitted that another aspect of concern was the normative effect of the Tribunal's decision in that no alternative to the action taken was identified in [92] of the Tribunal's reasons, as follows: The particular administrative issue is whether there were other actions she could have taken to address Ms Martinez's performance needs without humiliating her by the more formal meetings in a separate room, given her knowledge that Ms Martinez had personal and professional issues, that she had poor self-esteem, and that the management she had instituted hitherto had not been sufficiently effective. The Tribunal considers there were alternative options. She could have sought advice from her superiors or from the human resources team about an alternative approach. Neither of these steps was beyond her personal or professional competence. She did not take them … 17 The applicant to intervene wished to advance arguments in respect of the questions of law in paragraphs 2.2 and 2.5 of the amended notice of appeal. 18 As to the question of whether the applicant to intervene could make a useful and different contribution, the submission was that she would give a different emphasis to the issues such as whether the DEEWR and Ms Ward got a fair hearing and whether it was legally open to characterise the actions in the way the Tribunal did. Ms Ward did not seek to intervene in the appeal. Rather, the applicant to intervene would represent such interests as Ms Ward had in the appeal. 19 The applicant to intervene submitted that she may wish to attempt to expand the issues in relation to the procedural fairness ground and may wish to study and consider whether there was a broader procedural fairness argument to be put forward, but would not insist on doing so if that was a crucial consideration in the Court's decision on whether to allow the application to intervene. 20 The applicant to intervene submitted that the case was somewhat out of the ordinary and it would be rare in practice for such an application to be made. 21 The respondent's submissions noted the following: (a) it was known to the applicant to intervene from the time that the respondent filed the claim to compensation in November 2010 that she alleged that she had been the subject of "patronisation, bullying, being made to feel stupid"; (b) it was further known to the applicant to intervene that the respondent made specific allegations relating to the conduct of Ms Ward and other employees of DEEWR in her witness statement dated 23 December 2011 which the respondent said had contributed to the psychological condition; (c) the applicant to intervene caused statements to be prepared by Ms Ward and other employees of DEEWR, between January and March 2012, responding to the applicant's allegations, which were then filed in the Tribunal proceedings; (d) oral evidence was given by Ms Ward and the other departmental witnesses in the course of the Tribunal proceedings; (e) at no time between the application made by the applicant to the Tribunal on 18 August 2011 and the decision of the Tribunal issued on 14 November 2012 did the applicant to intervene apply to become a party to the proceedings before the tribunal under s 30(1A) of the Administrative Appeals Tribunal Act 1975; (f) the applicant to intervene allowed more than two months to elapse between filing of the notice of appeal by Comcare on 11 December 2012 and the date of the application to intervene, without giving any notice whatsoever to the respondent that this application might be made. 22 The respondent submitted that the proposed contribution of the applicant to intervene had not been shown by the affidavit to be useful and different from the contribution of Comcare. The appeal was limited to questions of law. Those questions of law had been formulated by Comcare and there was no reason to suppose that Comcare was incapable of engaging competent counsel to argue those questions of law before the Court. The respondent further submitted that if the application were allowed, it would simply permit those challenging the Tribunal decision to have two bites of the same cherry sequentially, probably with senior counsel in each case. That would prolong the proceedings, disadvantage the respondent, and may increase costs. Great numbers of similar applications to intervene could occur. Most significantly, in the present case there was no reason to assume that it would result in a greater elucidation of the questions of law before the Court. 23 The respondent referred to Re Carolyn Joy Gray and Commonwealth Banking Corporation and Commission of the Safety Rehabilitation and Compensation of Commonwealth Employees [1989] AATA 149 at [2]. In that case both determinations and applications for review were made prior to the repeal of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) and its replacement by the then Commonwealth Employees Rehabilitation and Compensation Act 1988 (Cth) ('the new Act') on 1 December 1988 and thus the transitional provisions in s 129 of the new Act were relevant. The Tribunal said: … we doubt whether the legislation envisaged that Comcare should take an active role in the conduct of proceedings of this nature. Although the purpose of the sub-section is not referred to in the Explanatory Statement circulated with the Bill for the new Act, our understanding is that Parliament intended that Comcare should be joined as a party purely for procedural reasons. It seems to us inappropriate that Comcare, as the administering authority, should take an active role in relation to decisions of its delegates or delegates of its predecessor. It would be as inappropriate as any judicial officer or tribunal member appearing before an appellate court, in addition to the parties, to defend a decision. We were informed by counsel for Comcare that it considered that its role was evolving. We can understand this approach. It will be some time before experience of the legislation in operation indicates clear parameters within which Comcare should act in relation to the public hearing of proceedings. However, we envisage that its representation, in addition to separate representation of the agency, will be called for only in the most exceptional of cases. 24 More consistent with what I understand to be recent practice in the Tribunal is Re Boyd and Comcare (1991) 23 ALD 392; 14 AAR 30 which concerned an injury claimed to have occurred in the course of the applicant's employment by the Reserve Bank of Australia. The claim was brought under the then named Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth). The Tribunal (O'Connor J) refused leave to the bank to be joined as a party as the interests of Comcare and the bank were not significantly different and could be adequately represented by Comcare. Her Honour said: (10) The interests of Comcare and the bank will not in the ordinary course be significantly different. The issue in these proceedings is whether compensation is payable to the applicant; the Tribunal would be in error if it took into account industrial relations in making that decision. Both Comcare and the bank's interest here is to ensure that compensation is not paid to the applicant unless the facts of the case and the legislation require. This common interest can be adequately represented by Comcare. Indeed, Comcare, as an organisation specialising in compensation, could be regarded as being in a better position to present the case. The CERC Act envisages that Comcare will act like an agent of the bank. 25 The reasons of the Tribunal in both decisions of course would tend to discourage, as a matter of practice and in the ordinary course, more than one respondent in the Tribunal under Commonwealth employees compensation legislation. 26 Comcare submitted before me that it was not concerned about any effect the applicant to intervene may have on Comcare's ability to present its case.

Consideration 27 Ms Ward gave evidence in the proceedings before the Tribunal. It is not suggested that she is a necessary party. A major issue before the Tribunal was whether or not Ms Martinez' condition was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment within s 5A of the SRC Act. This is not a case where findings were made about a person who did not give evidence where the findings were peripheral to an issue. Thus there is very substantial overlap between the questions of law raised by Comcare and the matters of interest to the Secretary. Hence the submission on behalf of the Secretary on her application to intervene that she would give a different emphasis to the issues. 28 In my opinion a significant factor in determining the application for leave to intervene is the nature of the jurisdiction being exercised by the Court. As I have said, the jurisdiction is limited to a question or questions of law. While the amended notice of appeal raises issues in relation to Ms Ward's conduct those issues are, necessarily, limited to legal errors which answer the description "on a question of law". 29 Further, it is not suggested that the Court should decide an ultimate question of fact. In the circumstances of the present appeal, as I read the amended notice of appeal, the evidence will be limited to the factual evidence or other material which was before the Tribunal. 30 Next, in my view it cannot be said that the Secretary is a necessary party to the appeal. It is not suggested that the SRC Act imposes a direct statutory liability on the Secretary or on the Department. That liability is imposed on Comcare. I accept however that s 97 of the SRC Act, which provides that Comcare must make a determination of the amount of premium to be paid by each Entity in respect of each financial year, means that there is an indirect financial consequence for each Entity, of which the Department is one. 31 The Secretary puts the application, in significant part, on the basis of reputation. I will assume an indirect affection of legal interest although it is difficult to see how that interest resonates with the SRC Act: cf Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250. However, most importantly, the applicant to intervene has not shown that the parties to the appeal, in particular Comcare, will not present fully the submissions on the relevant issues, being submissions which the Court should have to assist it to reach a correct determination. Also I am not satisfied that the proposed intervener's contribution will be useful and different from the contribution of the parties to the proceeding: see r 9.12(2)(a). 32 I should add that I place no reliance on the matters noted by the respondent which I have reproduced at 21 and (f) above. No prejudice was pointed to by the respondent arising from the time or timing of the proposed intervener's application. 33 As to the reference to British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524, it appears that Mr Wilson did not give evidence before the primary judge: see McCabe v British American Tobacco Australia Services Ltd [2002] VSC 73 at [44]. Further it does not seem to me desirable to reason from the bare result of the exercise of discretion, particularly in a matter of practice and procedure.

Conclusion 34 For these reasons, I refuse the Secretary's application for leave to intervene in the appeal under s 44 of the Administrative Appeals Tribunal Act. 35 As to costs, in my view the Secretary must pay the respondent's costs, as agreed or taxed, of the Secretary's interlocutory application. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.