Hutchinson v Comcare

Federal Court of Australia|2018-08-17|Before: Barker J

The decision of the respondent dated 13 December 2017 be set aside.
The matter be referred back to the decision-maker for further consideration according to law.
There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BARKER J: 1 Ms Karen Hutchinson applies for judicial review, under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) of a decision of Comcare dated 13 December 2017. 2 The decision which Ms Hutchinson has identified as amenable to review concerned an earlier request for her to attend a medical assessment in December 2017, which she failed to attend. By a letter dated 13 December 2017, Comcare's delegate wrote to Ms Hutchinson in the following terms: You were requested to attend a medical assessment on 8 December 2017 in relation to your Administrative Appeals Tribunal (AAT) matter. You failed to attend that assessment. You were advised that if you refused or failed to undergo an examination, without reasonable excuse, your rights to compensation and to institute or continue any proceedings would be suspended until the examination takes place, under section 57(2) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). Pursuant to s57(2) of the SRC Act, I hereby suspend your right to compensation to institute or continue any proceedings under the SRC Act. No further action will be taken on your claim until you attend a medical assessment. Please note the SRC Act does not allow you to request a reconsideration of this decision. However, under the Administrative Decisions (Judicial Review) Act 1977 (AD (JR) Act) you may be able to apply to the Federal Court to challenge the decision. 3 Ms Hutchinson complains that this constituted a denial of natural justice "because there was no enquiry or consideration" given to what she says was her "reasonable excuse" for not attending the medical examination. 4 In particular, Ms Hutchinson says she is aggrieved by the "decision" embodied in the letter because she was: denied the "correct and lawful statutory entitlements" that were available to her under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act); and deliberately denied the "proper policy and procedural processes by the Comcare delegate". She particularises that by referring to breaches of natural justice. 5 More specifically, Ms Hutchinson alleges that the principal ground of review arises under s 6(1) of the ADJR Act in that a breach of the rules of natural justice has occurred. 6 She seeks an order of the Court directing Comcare to rescind the "refusal to deal" decision and ensure that all aspects of natural justice/procedural fairness are properly observed and seen to be properly observed. 7 As it transpires, Comcare concede the challenge made by Ms Hutchinson. However, Comcare raises a costs issue. 8 I agree the decision should be set aside and the matter referred back to the decision-maker to be dealt with according to law. I consider there should be no order as to costs.

Ms Hutchinson's evidence 9 By her affidavit filed 12 January 2018, Ms Hutchinson supports her judicial review application as follows (annexures not included): The AAT Appeal 4. On 7 September 2017 I made an application to the AAT to review Comcare's decision of 22 August 2017. 5. By determination dated 20 July 2017 it was decided that the Respondent had no present liability to pay me compensation for medical treatment or incapacity payments under section 16 and 20 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). Medico-Legal Assessment Requested 6. On 25 October 2017 Comcare's legal representatives, Sparke Helmore sent me advice that I was to attend a medico-legal assessment on 8 December 2017. 7. I advised Sparke Helmore by return email that I would require Cabcharge vouchers to attend the appointment. 8. Sparke Helmore advised me that Comcare would not be providing the requested Cabcharge vouchers but noted I would be able to submit any reasonable costs of travelling to the appointment to them by receipt which they would then reimburse. 9. On 9 November 2017 I advised Sparke Helmore that if Comcare were not prepared to provide me with the vouchers I would not be able to attend the assessment. 10. I received no further communication from Sparke Helmore. Annexure 'KH-1' is a copy of the document referred to at paragraphs 6 - 10 above. Refusal to Deal Issued 11. As I advised Sparke Helmore, I did not attend the medical appointment scheduled for 8 December 2017. 12. On 13 December 2017 Comcare delegate, Chris Gallagher issued a 'refusal to deal' determination under section 57(2) of the SRC Act. Annexure 'KH-2' is a copy of the document referred to at paragraphs 11 - 12 above. Formal Complaint to Comcare 13. In response to the 'refusal to deal' determination I made a formal complaint to Comcare regarding the mishandling and maladministration of my claim. Annexure 'KH-3' is a copy of the document referred to at paragraph 13 above. 14. On 14 December 2017 Sparke Helmore emailed me the following; 'We understand that Comcare has issued a suspension of your entitlements following your non-attendance at the appointment with Dr Spear. Comcare had issued a section 57 letter to you explaining the consequences of non-attendance and provided you with cabcharge vouchers in order for you to attend the appointment. Our client has confirmed that letter was delivered on 23 November 2017- Express post tracking number 63511757675063. In accordance with s57 of the SRC Act, Comcare now considers that your entitlements to compensation and your right to continue proceedings before the Tribunal are suspended until such time as you attend a medical appointment. The Tribunal's practice direction, (available at: http://www.aat.gov.au/AAT/media/AAT/Files/Directions%20and%20guides/WorkersCompensation-Guide.pdf) outlines the process which the Tribunal will take in relation to suspensions under section 57 of the SRC Act. Could you please advise whether you are willing to attend an appointment with Dr Spear, and we will rebook another appointment. Once you attend the appointment, the suspension of your compensation and proceedings would be lifted.' 15. In response I sent the following email advice; 'You have advised me that Comcare issued a section 57 letter explaining the consequences of non-attendance and provided me with cab-charge vouchers in order for me to attend the appointment with Dr. Spear on 8 December 2017. You also advise Comcare told you the letter was delivered on 23 November 2017 - Express post tracking number 63511757675063. I can confirm that the section 57 letter and cab-charge vouchers referred to above were not delivered to me. If it had been the case I would have attended the scheduled appointment with Dr. Spear as I stated to you previously the only impediment to me attending was the issuing of cab-charge vouchers for that purpose. Clearly, this has been some mischief engaged in by Comcare to protract and delay this matter before the Tribunal.' Annexure 'KH-4' is a copy of the document referred to at paragraphs 14 - 15 above. Request for Adjournment to AAT 16. On 16 December 2017 I wrote to the AAT to request an adjournment in the matter of 2017/5357 Hutchinson and Comcare to allow me time to seek legal representation. Annexure 'KH-5' is a copy of the document referred to at paragraph 16 above. Covert Threat Issued by Sparke Helmore 17. On 19 December 2017 Sparke Helmore wrote in response to my request to the AAT and to remind me that my entitlements are currently suspended and should I not undergo a rearranged medical appointment they will by requesting a dismissal of my application pursuant to section 42A(5) of the AAT Act. Annexure 'KH-6' is a copy of the document referred to at paragraph 17 above.

Ms Hutchinson's submissions 10 Ms Hutchinson filed written submissions on the application. I will summarise her key propositions. 11 Ms Hutchinson says: Comcare's actions, including by its lawyers, were designed and crafted to delay matters in her Administrate Appeals Tribunal proceeding and keep her from resolving the "cessation of present liability" of her compensation claim which took effect on 20 July 2017 in her favour. On providing "the refusal to deal" letter, as she terms it, under s 57(2) of the SRC Act, the warning about the risks to her mental health was subsequently provided to the decision-makers. Everything that follows from that letter involved intimidation, bullying and abuse against a "self represented compensation recipient who is struggling to survive from one day to the next". "the purpose of the medico-legal assessment … on 8 December 2017 that occasioned the issuing of the aforementioned Cabcharge vouchers, was always suspect because the cessation of my claim was not based on the medical evidence that was available to the primary decision maker at the time of the cessation and therefore could be properly reformed based on the opinion of a medico-legal specialist six months after the fact". 12 Ms Hutchinson, in her written submissions, further has regard to my relatively recent decision in Hutchinson v Comcare [2018] FCA 505 and in that regard provides some commentary on that judgment. 13 Ms Hutchinson also makes reference to what she calls a "Calderbank threat" concerning costs.

comcare's submissions 14 As it transpires, Comcare concedes that the decision made by the delegate is affected by legal error on the basis that a breach of natural justice occurred in connection with the making of the decision identified by Ms Hutchinson. The concession is made, having regard to s 5(1)(a) of the ADJR Act. Specifically, Comcare concedes that it failed to afford her with an opportunity to put information and submissions to the decision-maker in support of an outcome that supported her interests, in this case, her reasonable excuse for failing to attend a medical appointment.

consideration 15 Having regard to the evidence and submissions put on by Ms Hutchinson and the concession made on behalf of Comcare, I am satisfied that the decision identified is amenable to review and should be reviewed and set aside on the basis set out in [14] above. She should have had the opportunity to put information and submissions to the delegate in support of an outcome that supported her interests, specifically, her reasonable excuse for failing to attend the scheduled medical appointment. 16 A further question arises, however, concerning costs. 17 Comcare seeks an order that Ms Hutchinson pay its costs on an indemnity basis from 4 July 2018. It says that it conceded at an early stage that the decision should be set aside and by letter dated 20 June 2018 made an offer to resolve the matter on the basis that the decision would be set aside and referred back for decision in accordance with law; together with an order that there be no order as to costs; and that the 23 July 2018 hearing would be vacated. That letter was expressed in accordance with the principles in Calderbank v Calderbank [1975] 3 All ER 333 and the offer was open until the close of business on 4 July 2018. 18 Notwithstanding a view which might be adopted that Ms Hutchinson unreasonably rejected that proposal, and that the orders will produce an outcome exactly the same as that proposed on behalf of Comcare, I apprehend that Ms Hutchinson, as a self-represented party, has been under some misapprehension as to the nature of the proposal put or the nature of the orders and the terms of the Calderbank offer made by Comcare. 19 At least on this occasion, I am prepared to give Ms Hutchinson the benefit of the doubt in that regard. 20 In my view, there should be no order as to costs on the judicial review application.

orders 21 In these circumstances, the Court orders: (1) The decision of the respondent dated 13 December 2017 be set aside. (2) The matter be referred back to the decision-maker for further consideration according to law. (3) There be no order as to costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

Safety, Rehabilitation and Compensation Act 1998(Cth)s 57(2)

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