Dunkerley v Registrar Bird [2025] FCA 1515

A registrar's decision under r 2.26 of the Federal Court Rules 2011 (Cth) refusing to accept a document if the registrar is satisfied that the document is an abuse of the process of the Court or frivolous or vexatious is susceptible to review under s 5 of the ADJR Act: see Nyoni v Murphy (2018) 261 FCR 164; [2018] FCAFC 75 at [32] and [41].
The first ground raised by Ms Dunkerley is that the Registrar denied her procedural fairness in finding that the "Documents do not make out a discernible cause of action properly stated". By the originating application which Ms Dunkerley sought to file Ms Dunkerley sought to review the decision in Dunkerley v Comcare "based on evidence released by the Federal Court" and by way of relief sought an order setting aside the orders made by Perram J on 27 April 2015. Ms Dunkerley also sought to file a document titled "statement of claim" which appears to seek to provide particulars of that claim.
On the face of the material, I could not conclude that in making her decision not to accept the Documents for filing the Registrar denied Ms Dunkerley procedural fairness. The Registrar in considering whether the Documents should be accepted for filing was making an administrative decision. As a Full Court of this Court (Barker, Banks-Smith and Colvin JJ) observed in Murphy (at [38]) "r 2.26 [of the Rules] is the means by which an administrative requirement is expressed that all documents filed in the Registry must not in their form and content (irrespective of any substantive assessment of their merit) be an abuse of the process of the Court or frivolous or vexatious".
In making her decision the Registrar considered the Documents on their face. Ms Dunkerley was not entitled to a hearing nor was the Registrar required to confer with or otherwise correspond with Ms Dunkerley.
Ms Dunkerley has not established that there was any denial of procedural fairness on the part of the Registrar in making her decision.
The second ground raised by Ms Dunkerley is that the Registrar's decision involved an error of law. The error is said to be in the Registrar identifying that in seeking to file the Documents Ms Dunkerley was seeking judicial review of the decision in Dunkerley v Comcare. Ms Dunkerley submits that the test in Phosphate Sewage v Molleson (1879) 4 App Cas 801 allows the re-litigation of a point where there is new evidence which fundamentally changes an aspect of the case. She says that Comcare's letter dated 21 December 2022 confirming that Comcare did not make a determination denying liability for a 15 July 2009 injury is fresh evidence that justifies re-litigation.
There is no error of law as alleged by Ms Dunkerley. The fact is that Ms Dunkerley was seeking to review the decision in Dunkerley v Comcare. So much is apparent on the face of the Documents, the originating application for review of the Registrar's decision and the other material relied upon by Ms Dunkerley.
The third ground of review is an alleged failure on the part of the Registrar to take a relevant consideration into account namely that Perram J had no evidence to establish as a fact a 15 July 2009 injury. Ms Dunkerley submits that a judgment based on no evidence must be set aside in the interests of justice.
Dunkerley v Comcare was an appeal from orders made by the then Administrative Appeals Tribunal on 18 June 2014 dismissing Ms Dunkerley's application for review of an earlier decision made by Comcare to the effect that she was not entitled to compensation for medical treatment expenses or incapacity for work under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). His Honour noted that the injury occurred in October 2007 and that both Comcare and the Tribunal concluded that the injury had resolved by March 2009 and, in any event, had been completely supplanted by a non-compensable injury in July 2009.
Ms Dunkerley's appeal was dismissed with costs. In considering it, Perram J first set out the events leading up to the proceeding before him. Relevantly his Honour observed that Ms Dunkerley joined the former Department of Education, Science and Training (DEST) as a project officer in March 2007 and, whilst employed there, she suffered an injury which was ultimately accepted by Comcare to have been contributed to by her employment with DEST to a significant degree. The "injury consisted of a psychiatric condition referred to as an adjustment disorder with anxious mood" which Comcare accepted was a compensable ailment under the SRC Act from 24 October 2007: Dunkerley v Comcare at [3].
In December 2007 Ms Dunkerley was deemed fit to work, albeit in a different part of DEST but, as it was not possible to find such a position, she was ultimately transferred to the Department of Industry, Innovation, Science, Research and Tertiary Education, where she began working in a full time position on 22 January 2009. About a month later Ms Dunkerley saw a psychiatrist who found that she presented with no psychiatric diagnosis: Dunkerley v Comcare at [5]-[6]. As to 15 July 2009, Perram J relevantly said at [8]-[10] (my emphasis):
1. It is now necessary to note a matter of chronology. Although it is true that Comcare eventually accepted liability for the adjustment disorder Ms Dunkerley had suffered around 24 October 2007 at DEST, it did not do so until 16 June 2009; that is to say, not until after she had started in her new position at DIISR (on 22 January 2009) and not until after she had seen Dr George on 2 March 2009 when he diagnosed her as suffering from no psychiatric condition. Thus at the time that she saw Dr George, Comcare was still disputing its liability for the events which had occurred at DEST in October 2007.
2. It was during this period that Ms Dunkerley was persuaded by one of her superiors at DIISR, Mr Schwager, to apply for one of several executive level 1 positions which were then available within DIISR. Mr Schwager had formed a favourable view of her abilities as a result of work she had done in relation to a summit involving the Prime Minister. Ms Dunkerley in due course applied and was short listed for an interview. She was unsuccessful. Mr Schwager had been the chair of the selection committee and he gave her feedback after the interview. At some point during this feedback process, Ms Dunkerley received the impression that Mr Schwager had told her that she had only been short listed for an interview 'out of charity'. To be fair to Mr Schwager, the Tribunal which examined the precise circumstances of this interview accepted (Dunkerley and Comcare [2010] AATA 915 at [56]) that he was not trying to be patronising but was simply conveying that he had given her the benefit of the doubt because of her good qualities exhibited when she had worked for him beforehand.
3. This occurred on or about 15 July 2009, about a month after Comcare had decided to accept liability for the adjustment disorder suffered by Ms Dunkerley at DEST in 2007. Without dwelling on the detail, Ms Dunkerley thereafter claimed to have suffered an exacerbation of her earlier adjustment disorder as a result of her perception of Mr Schwager's remarks.
One of the contentions raised by Ms Dunkerley before Perram J was that "the medical certificates she had obtained at the time of the incident with Mr Schwager had all referred to the condition she had as an exacerbation of the pre-existing 2007 adjustment disorder" and that "[o]nce those certificates were provided to Comcare neither it nor, subsequently, the Tribunal were permitted to approach the matter on the basis that the earlier 2007 injury was not relevant". This is the only contention raised before Perram J which seemed to directly touch upon the events of 2009. His Honour disposed of that contention at [22]-[23] as follows:
1. This appeal is devoid of merit. As to contention (a), the idea that Comcare and, thereafter, the Tribunal are bound by the medical certificates she obtained on the occurrence of the events involving Mr Schwager is without substance. True it is that most claims under the Act must be accompanied by a certificate issued by a medical practitioner. Section 54 says this. But nowhere does the Act say that Comcare must accept the views expressed in that certificate. Indeed, the power of Comcare to require a claimant to be assessed by another medical practitioner under s 57 shows this contention is hopeless.
2. During the hearing of the appeal I was briefly troubled by the Tribunal's finding that the injury caused by the events surrounding Mr Schwager in 2009 had simply supplanted the relevance of the 2007 injury and its earlier conclusion in the first proceeding that that injury was an exacerbation of the 2007 injury. These appeared to be inconsistent conclusions. However, a review of the full record shows that Comcare was concerned, in light of Dr George's report of 10 March 2009, that Ms Dunkerley's condition no longer existed. There is no doubt Comcare is entitled to take the course of reassessing a claim if fresh evidence suggests the injury is no longer extant: Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 at 273-274 [57] and [59] (FC). I do not accept Comcare's submission that there was no inconsistency but, in light of Telstra v Hannaford, this does not matter.
For completeness I note that Ms Dunkerley filed an appeal from the orders made on 27 April 2015 but, on the application of Comcare, it was dismissed on the basis of a combination of Ms Dunkerley's failure to file an appeal book and submissions in accordance with orders made by the Court and a failure to identify any ground of appeal which had any merit: see Dunkerley v Comcare [2015] FCA 1076 (Flick J). An application by Ms Dunkerley for an extension of time and leave to appeal against the orders made by Flick J was also dismissed: see Dunkerley v Comcare [2015] FCA 1519 (Rares J).
The Registrar's role was not to adjudicate the substance of Ms Dunkerley's claim but to consider on the face of the documents whether they could be accepted for filing having regard to r 2.26 of the Rules: see Murphy at [39]. The absence of evidence to support a finding was not relevant to that task; the Registrar did not fail to take a relevant consideration into account. In any event Ms Dunkerley's assertion was evident on the face of the Documents.
The fourth ground of review is that the Registrar exercised her power in bad faith and not in "adherence to the standards expected by the courts". There is no basis for this ground of review or anything before me to suggest that the Registrar carried out her function and considered the filing of the Documents other than in accordance with the requirements of r 2.26 of the Rules.
The final ground of review is that the Registrar exercised her power in a way that is so unreasonable that no reasonable person could have exercised the power as she did. That ground of review is not made out.
It is clear that the Registrar considered the content of the Documents but rejected them for filing because they are an abuse of process or frivolous or vexatious. That is a perfectly reasonable exercise of the power and decision to have reached in the circumstances of this case. As set out above, Ms Dunkerley had already attempted to appeal from the orders made by Perram J. Her appeal was dismissed for non-compliance with the Court's orders and, more fundamentally, because she failed to raise any ground of appeal that had any merit. In those circumstances it is not open to Ms Dunkerley to seek to set aside the orders of the Court by bringing an application for judicial review of the decision in Dunkerley v Comcare. Both on the face of the originating application which Ms Dunkerley sought to file and having regard to the balance of the Documents, the Documents constitute an abuse of process and/or are frivolous or vexatious.

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