Goodricke v Comcare

1. The time by which the Applicant is required to provide security for costs in the sum of $15,000 as previously ordered on 28 November 2017 is extended until 4.00pm on 27 June 2018.
2. In the event that security for costs is not provided as required by Order 1, the proceeding is dismissed.
3. The Applicant is to pay the costs of the Respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 The present proceeding has its origins in a determination made by Comcare in March 2015 that the Applicant, Mr Peter Goodricke, was not entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth). That adverse determination was affirmed by the Administrative Appeals Tribunal in July 2017: Goodricke and Comcare (Compensation) [2017] AATA 1249. 2 In August 2017, Mr Goodricke filed in this Court a Notice of Appeal. In November 2017, Comcare filed an Interlocutory Application seeking an order that security for costs be provided together with an order that the hearing of the appeal be stayed until the security was paid or dismissed in the event that security was not provided. 3 An order was made on 28 November 2017 that security be provided by 8 February 2018. Security was not provided. 4 Comcare now seeks the alternative order previously sought in November 2017 that the proceeding be dismissed. 5 The hearing of that Interlocutory Application proceeded before this Court on 27 March 2018. At the outset of that hearing Mr Goodricke sought an order that the hearing proceed before a different Judge by reason of an apprehension of bias. That application was then rejected. Mr Goodricke then proceeded to oppose the making of an order dismissing his proceeding. 6 Those two issues should be briefly addressed. 7 The application for disqualification and for the Court to be reconstituted was founded upon submissions as to: a lack of confidence in the "ability" of the Court as presently constituted to resolve the claims presently in issue in the appeal; an "error of law" said to have been committed in respect to a decision previously handed down in June 2011 in which Mr Goodricke was also a party (i.e., Goodricke v Comcare [2011] FCA 694, (2011) 122 ALD 546); and an appearance that Mr Goodricke would not be treated in an "even-handed" manner. Although no party should have any hesitation in making an application that any Judge should be disqualified by reason of an apprehension of bias (Giddings v Australian Information Commissioner [2017] FCAFC 225 at [52] per Collier, Flick and Charlesworth JJ), the grounds upon which any such application is made should be "firmly established" (Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J, 364 per Wilson J, 371 per Dawson J). 8 At the outset of the hearing it was then concluded that no such grounds had been made out. As the hearing progressed, however, and as the factual bases upon which Mr Goodricke initially sought to oppose the order now sought by Comcare were further exposed to scrutiny, the application for disqualification confronted even further difficulties. The decision made at the outset of the hearing not to accede to the disqualification application, it is respectfully concluded, was only further reinforced by reason of there being no reasonable apprehension of bias arising from any perceived lack of "ability" to resolve the issues thrown up by the application that the proceeding now be dismissed. 9 The second of the two issues, namely the order sought by Comcare for the dismissal of Mr Goodricke's appeal, took greater time to resolve. 10 The origins of the order made in November 2017 for security may be traced back to a decision of the Federal Circuit Court handed down in March 2015: Goodricke v Comcare [2015] FCCA 506. Mr Goodricke had there unsuccessfully sought to challenge (inter alia) Comcare's proposal to cease compensation payments. An appeal from that decision was unsuccessful: Goodricke v Comcare (No 2) [2015] FCA 1401. Mr Goodricke was ordered to pay the costs of both proceedings. Certificates of Taxation of those costs were issued, one in the sum of $8,861.12; the other in the sum of $19,550.74. 11 Comcare's subsequent decision in late March 2015 to cease compensation payments ultimately led to the Tribunal's decision which is now sought to be challenged by way of the Applicant's Notice of Appeal filed in this Court in August 2017. It was the failure to pay the costs the subject of the two Certificates of Taxation that founded the application for security for costs and founded the making of the order in November 2017 that security be provided. 12 The principal reason seized upon by Mr Goodricke in seeking to resist an order that his proceeding be dismissed, and indeed seized upon by him as a reason for vacating the order made for the payment of security, was the alleged non-disclosure by Comcare of a letter from a Health Services Australia Personnel Officer to Comcare dated 4 May 2000. On Mr Goodricke's account, the existence of that letter was not made known to him until 2009. Had the existence of that letter been known earlier, Mr Goodricke maintained that he would not have consented to the terms of a settlement he entered into with Comcare in 2004. He further maintained that the alleged non-disclosure of the letter during the course of the hearing before the Administrative Appeals Tribunal that led to its June 2010 decision was but part of a forensic course of conduct whereby Comcare was prepared to rely upon medical evidence unsupported by "mainstream" medical opinion. 13 Comcare, Mr Goodricke further maintained, had improperly "pressure[d]" his legal representatives. A more generally expressed submission advanced by Mr Goodricke was that Comcare was prepared to have improper recourse to seeking an order for security for costs as but a means of precluding him from progressing his claims. 14 The principal difficulty with the variety of ways in which Mr Goodricke sought to rely upon the 4 May 2000 letter was that that letter was made known to him and indeed was the subject of submissions before the Tribunal whose decision is now under appeal. The Tribunal in its reasons for decision expressly refers to the letter, the circumstances surrounding the terms of settlement and (at least in part) the submissions now advanced before this Court: [2017] AATA 1249 at [74] to [79], [86] and [92]. 15 An opportunity has thus been extended to Mr Goodricke to voice his concerns and to make submissions as to the conduct of Comcare both when securing his consent to terms of settlement in 2004 and when considering his claims for the purposes of making the decision now under appeal. 16 The present case is not one in which a party seeks to rely upon the nondisclosure of a document which has not previously been the subject of consideration and decision. 17 There is no reason, with respect, to revisit the order previously made for the payment of security for costs. That order has not been complied with. The order was made in November 2017 and security has still not been provided. The application for security was, with respect, hardly anything other than an appropriate application to have been made given the orders for costs which had previously been made and which remained unsatisfied. It is to be expected that all orders of this Court will be complied with, including orders for the payment of costs. 18 Although in February 2018 Mr Goodricke maintained that he had not by that time paid the security for costs because he was awaiting the sale of a property in order to access monies, and although there remains a question as to what steps have been taken in the interim to secure the sale of any property, Mr Goodricke maintained during the course of the present hearing that he would provide the security ordered if the proceeding were transferred to the docket of another Judge of this Court. An ability to provide the security may thus be accepted. That ability was the subject of observations made during the course of Mr Goodricke's submissions and again during the course of submissions advanced on behalf of Comcare. 19 Any inability to provide security being a possible reason for stifling the pursuit by Mr Goodricke of his appeal may thus be placed to one side.