Hutchinson v Comcare - [2019] FCA 1133 - FCA 2019 case summary — Zoe

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Hutchinson v Comcare

[2019] FCA 1133

Federal Court of Australia|2019-07-25|Before: Bromberg J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2019-07-25

Before

Bromberg J

Source

Original judgment source is linked above.

Judgment (47 paragraphs)

[1]

The Applicant's application is dismissed.
Unless an application for a contrary order is made within 7 days, the Applicant pay the Respondent's costs of the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

[2]

BROMBERG: 1 This proceeding initially raised claims reliant upon the Public Service Act 1999 (Cth), the Public Governance, Performance and Accountability Act 2013 (Cth) and the Public Interest Disclosure Act 2013 (Cth) ("PID Act"). All of the claims made by the applicant ("Ms Hutchinson") other than under the PID Act were conceded by her to have been improperly instituted. Leave was given to Ms Hutchinson to make the necessary amendments to her Further Amended Originating Application. That appears not to have been done. Nevertheless, the proceeding has been conducted on the basis that Ms Hutchinson has abandoned all of her claims other than those made under the PID Act. It is Ms Hutchinson's claims under the PID Act which these reasons address. 2 Ms Hutchinson is a former employee of the respondent ("Comcare"). Ms Hutchinson holds deep-seated grievances about the way in which Comcare and over 20 of its employees treated her in relation to her employment and also in relation to workers' compensation claims made by her as a result of injuries sustained in that employment. There is a long and unfortunate history of litigation between Ms Hutchinson and Comcare as is recorded in various judgments of this Court. Ms Hutchinson is self-represented. Her lack of legal representation together with various issues relating to her health have compromised her capacity to navigate the legal issues and legal processes which this proceeding has raised. In an attempt to accommodate her disadvantage without compromising the rights of Comcare, adjustments were made from time to time from the ordinary process which a proceeding such as this would be required to follow. 3 Ordinarily, pleadings are exchanged so that each party is put in a position of being able to clearly understand the case put against it. One of the adjustments I made was not to require Ms Hutchinson to file and serve a Statement of Claim or other formal pleadings. Ms Hutchinson's incapacity to properly plead her case has been the subject of related proceedings: Hutchinson v Comcare [2017] FCA 136. I determined, without objection, that the submissions and affidavits filed by each party stand in lieu of pleadings and serve the function of providing each party with a capacity to understand the case that she or it had to meet. 4 Another adjustment to the ordinary processes was made shortly prior to the scheduled trial date. On 13 December 2018, four days prior to the trial of this proceeding, Ms Hutchinson sought the vacation of the trial. Ms Hutchinson had previously failed to have the trial vacated: Hutchinson v Comcare (No 2) [2018] FCA 2005. The matters set out in those reasons are relevant background to, and informed my consideration of, the application made on 13 December 2018. 5 On the hearing of that application on 14 December 2018, in which Ms Hutchinson appeared by telephone, Ms Hutchinson submitted that she was unable to participate in the trial because of her "financial situation" and "ongoing health concerns" dealt with in an affidavit from her treating medical practitioner. She stated that those issues prevented her from travelling to Melbourne or participating in a trial by video-link from the Perth Registry of the Court. Ms Hutchinson also submitted that she had secured legal representation but that the representative was unavailable on the trial dates. No evidence was provided in support of this submission. Following an exchange between Ms Hutchinson and myself about the options available to her, it became apparent that the primary impediment to Ms Hutchinson's participation in the trial were her purported health issues. Ms Hutchinson submitted that, due to her medical incapacity, she was not capable of engaging in an adversarial process, including any exposure to cross-examination. She said that, because of this incapacity, she may never be able to attend the Court in person no matter how long the trial were to be delayed. 6 In the alternative to vacating the trial dates, Ms Hutchinson's made an application that the proceeding be determined on the papers. In the course of addressing this submission Ms Hutchinson requested that she be given an opportunity for an oral reply to Comcare's written submissions which had already been filed and served. On the making of one concession by Ms Hutchinson, the content of which is unnecessary to here record, Comcare consented to the matter being determined on the papers and to Ms Hutchinson being given the opportunity to make a short oral reply to its written submissions. 7 The trial on 17 December 2018 was limited to a short oral submission in reply delivered by telephone by Ms Hutchinson ("reply submissions"). With the consent of Ms Hutchinson, Comcare was granted leave to file a further short written submission on particular matters raised for the first time in Ms Hutchinson's reply submissions. 8 This matter has otherwise been determined on the papers. The following material was before me. 9 For Ms Hutchinson: (1) Written submissions dated 9 November 2017 ("Ms Hutchinson's submissions"); (2) first affidavit of Ms Hutchinson dated 30 August 2016 and filed on 5 September 2016, with accompanying annexures KH-1 to KH-4 ("First Affidavit"); (3) second affidavit of Ms Hutchinson dated 15 December 2016 and filed on 21 December 2016, with accompanying annexures KH-5 to KH-24 ("Second Affidavit"); (4) third affidavit of Ms Hutchinson dated 20 April 2017 and filed on 21 April 2017, with accompanying annexures KH-25 to KH-50 ("Third Affidavit"); (5) fourth affidavit of Ms Hutchinson dated 5 July 2017 and filed on 6 July 2017, with accompanying annexures KH-51 to KH-58 ("Fourth Affidavit"); (6) fifth affidavit of Ms Hutchinson dated 2 August 2017 and filed on that date, with accompanying annexures KH-59 to KH-63 ("Fifth Affidavit"); and (7) sixth affidavit of Ms Hutchinson dated 6 November 2017 and filed on 8 November 2017, with accompanying annexures KH-64 to KH-94 ("Sixth Affidavit") 10 The affidavit material filed by Ms Hutchinson was received subject to my determination of objections to the admissibility of much of that evidence made by Comcare. 11 Comcare relied on its submissions dated 1 October 2018 ("Comcare's submissions"), its submission to Ms Hutchinson's reply submission, two affidavits of Sarah Ralph dated 19 October 2016 and 27 September 2018 respectively, and its list of evidentiary objections dated 23 November 2018 ("List of Objections").

[3]

Background Facts and the Parties' Contentions in Outline. 12 In February 2011 and whilst still an employee of Comcare, Ms Hutchinson made a workers' compensation claim pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("SRC Act"). A compensable claim was accepted for "Major Depressive Disorder - single episode" ("major depressive disorder") on 25 July 2011 following the reconsideration of an earlier rejection of that claim on 23 May 2011. 13 In December 2013, Ms Hutchinson lodged various complaints with Comcare, dated 10, 12 and 15 December 2013 respectively, concerning her employment and the improper administration of her workers' compensation claim (the "December 2013 complaints"). 14 On 17 January 2014, Ms Hutchinson was medically retired from employment with Comcare. 15 On 30 January 2014, Comcare made a decision not to investigate the December 2013 complaints. 16 Since 30 January 2014 Ms Hutchinson has lodged two purported public interest disclosures ("PIDs") purportedly made pursuant to the PID Act (together, the "Purported PIDs"). 17 Ms Hutchinson's first purported PID, dated 30 January 2014, contains allegations that Comcare failed to afford her "whistleblower" protection under the Public Service Act and refers to a complaint made by Ms Hutchinson on 28 January 2013 (the "First Purported PID"). 18 In August and September 2015, Ms Hutchinson made a claim for secondary medical conditions of type two diabetes, atrial flutter and obesity related to her accepted compensable conditions ("Secondary Claim"). On 11 December 2015, Comcare made a decision to reject the Secondary Claim. 19 On 19 December 2015, Ms Hutchinson made a second purported PID relating to Comcare's management of her workers' compensation claim in the period of August to November 2015, in particular in respect of the decision to deny the Secondary Claim (the "Second Purported PID"). 20 On 31 August 2016, Ms Hutchinson filed this proceeding claiming relief under the PID Act. 21 Ms Hutchinson alleges that, since 2014, Comcare has taken "reprisal" action against her and caused her detriment in contravention of s 13 of the PID Act. By her material, Ms Hutchinson identifies over 30 instances of alleged reprisal actions taken against her by employees of Comcare. She alleges that the reason, or one of the reasons, for each of the alleged reprisal actions was that Ms Hutchinson had made one or more of the Purported PIDs. She seeks compensation for loss, damage or injury. 22 There is no issue that as a person who is or has been a "public official", Ms Hutchinson is a person capable of making a PID. However, Comcare denies that, by the Purported PIDs, Ms Hutchinson made PIDs within the meaning of s 26 of the PID Act. 23 Further, even if one of more of the Purported PIDs does constitute a PID, Comcare asserts that Ms Hutchinson has not demonstrated, to the requisite standard of proof, that Comcare or its employees have taken "reprisal" action against her within the meaning of s 13 of the PID Act. Comcare seeks that Ms Hutchinson's claims for relief be dismissed.

[4]

consideration 24 Ms Hutchinson bears the legal onus of proof on all issues. There is no provision in the PID Act which reverses her onus as the applicant. Her failure to discharge that onus and thereby prove her case is the reason why I conclude that her claims fail and that this proceeding must be dismissed. 25 Comcare sought to persuade me that I should dismiss the proceeding by reason of what it referred to as a "threshold" issue. As indicated already, Comcare contended that neither of the purported PIDs made by Ms Hutchinson was a "public interest disclosure" within the meaning of s 26 of the PID Act. It was contended that Ms Hutchinson's claims fail at that initial hurdle and require no further consideration. 26 I disagree. The contention proceeds upon a misconception of what Ms Hutchinson needs to prove in relation to the claims made by her. That misconception will be apparent from the analysis I now turn to make as to what it is that Ms Hutchinson needs to prove. 27 At the heart of the PID Act is the encouragement and facilitation of public interest disclosures made by public officials. So much is evident from object (b) in s 6 of the PID Act. As the related object (c) states, the PID Act intends that public officials who make public interest disclosures are supported and protected from "adverse consequences relating to the disclosures". So much is also apparent from s 7(1) of the Act which in paragraph (a) states that the PID Act: provides a means for protecting public officials, and former public officials, from adverse consequences of disclosing information that, in the public interest, should be disclosed; 28 The "adverse consequences" referred to are what the PID Act later identifies and defines as "a reprisal". As the overview given by s 7 states, Part 2 of the PID Act provides for "offences and civil remedies for reprisals taken against disclosers": s 7(2)(b). Relevantly to the claims made by Ms Hutchinson, s 14(1) of the PID Act provides that where this Court is satisfied that a respondent has taken "a reprisal against the applicant", the Court may make orders requiring the respondent to "compensate the applicant for loss, damage or injury as a result of the reprisal…": s 14(1)(a). 29 What constitutes "taking a reprisal" is addressed by s 13. That term is referred to in s 8 which provides that it has the meaning given by s 13. It is necessary to set out the terms of s 13: 13 What constitutes taking a reprisal (1) A person (the first person) takes a reprisal against another person (the second person) if: (a) the first person causes (by act or omission) any detriment to the second person; and (b) when the act or omission occurs, the first person believes or suspects that the second person or any other person made, may have made or proposes to make a public interest disclosure; and (c) that belief or suspicion is the reason, or part of the reason, for the act or omission. (2) Detriment includes any disadvantage, including (without limitation) any of the following: (a) dismissal of an employee; (b) injury of an employee in his or her employment; (c) alteration of an employee's position to his or her detriment; (d) discrimination between an employee and other employees of the same employer. (3) Despite subsection (1), a person does not take a reprisal against another person to the extent that the person takes administrative action that is reasonable to protect the other person from detriment. 30 Although Ms Hutchinson alleges that reprisals were taken against her by various employees of Comcare, it is not in contest that Comcare is liable for any reprisal action taken by those employees. 31 The terms of s 13 relevantly set out all of the elements that Ms Hutchinson needed to prove. In relation to each reprisal asserted to have been taken by an employee of Comcare it was necessary for Ms Hutchinson to have demonstrated the following elements ("requisite elements"): (i) that a Comcare employee by act or omission ("detrimental conduct") caused Ms Hutchinson detriment: s 13(1)(a); (ii) that when the detrimental conduct was taken, the Comcare employee believed or suspected that Ms Hutchinson may have made or proposes to make a PID ("PID belief"): s 13(1)(b); and (iii) that the PID belief is the reason, or part of the reason, for the detrimental conduct ("prohibited reason"): s 13(1)(c). 32 Whether "a reprisal against the applicant" within the meaning of s 14 of the PID Act has been taken is not, as the terms of s 13(1)(b) make clear, dependent upon the making by the applicant of a PID within the meaning of s 26 of the PID Act. The element of the cause of action specified by s 13(1)(b) turns on the belief or suspicion of the person who took the detrimental conduct as to whether a PID has been, may have been or is proposed to be made. For that reason, Comcare's threshold issue is misconceived.

[5]

The Alleged Reprisals - Some General Observations 33 Ms Hutchinson has identified over 30 alleged reprisals she said were taken against her by more than 20 employees of Comcare. It will be necessary to address each reprisal in turn. I will do that bearing in mind that it was for Ms Hutchinson to identify with clarity each reprisal upon which she relied. That is not something which has clearly been done in Ms Hutchinson's submissions. However, in its submissions Comcare attempted to identify each of the reprisals that to the best of its understanding, Ms Hutchinson relies upon. In Ms Hutchinson's reply submissions she did not suggest any error in the alleged reprisals listed in Comcare's submissions. On that basis, I will treat the alleged reprisals identified in Comcare's submissions as an accurate list of the reprisals relied upon by Ms Hutchinson. 34 In Ms Hutchinson's submissions she identified what were the issues for determination by the Court. She identified three issues. First, whether Comcare caused by act or omission detriment to her. Second, whether Comcare believed or suspected that she had made or may make a PID. Third, did Comcare's belief or suspicion that she had made or may make a PID lead to the alleged reprisals taken against her? As is apparent, Ms Hutchinson identified, in broad terms, each of the requisite elements I have identified that it is necessary for her to prove in relation to each reprisal. 35 Unfortunately, when Ms Hutchinson's submissions addressed each of the alleged reprisals, her submissions failed to address each of those elements or the issues which she had herself earlier identified as necessary to be dealt with. As stated, I will deal with each alleged reprisal in turn. However, it is necessary to say at this juncture that, broadly speaking, Ms Hutchinson's submissions in relation to each alleged reprisal failed to address each of the requisite elements, and where a requisite element was identified, she largely failed to refer to any evidence in support of a finding that the requisite element was made out. 36 Furthermore, in relation to each of the alleged reprisals, Comcare's submissions referred to the absence of reference to or demonstration by the evidence of the requisite elements necessary to establish that reprisal action was taken in accordance with the requirements under s 13(1) of the PID Act. By her reply submissions, Ms Hutchinson was given the opportunity to address those failures in relation to each of the alleged reprisals as asserted by Comcare. Broadly speaking, Ms Hutchinson did not address or adequately address the submissions made by Comcare in relation to her failure to identify and prove each of the requisite elements necessary to establish each of the alleged reprisals. 37 Although Ms Hutchinson was relieved of the need to plead her case by way of formal pleadings, she was not relieved of the need to identify her case in relation to each of the alleged reprisals by identifying the requisite elements necessary to make out each of the reprisals and, in relation to each requisite element, the evidence which she relied upon in support of her contention that the element is made out. Instead of undertaking that essential task, much of Ms Hutchinson's submissions are comprised of little more than a narrative of events some relevant (most not), riddled with Ms Hutchinson's assumptions, opinions and speculation on matters of little or no relevance to the requisite elements which her case needed to demonstrate. 38 I well appreciate that Ms Hutchinson may be at a loss to understand the criticism which I have just made. There is probably nothing I can do to address that. It remains, however, necessary for me to say (as has been said on several prior occasions), that she is the moving party in the proceeding and bears the onus of making out her case in relation to each of the reprisals that she has alleged. It is not for the Court to make out that case by searching through the affidavit evidence filed by Ms Hutchinson (much of which is repetitive and inadmissible) and discerning for itself what part of that evidence Ms Hutchinson seeks to rely upon in support of a particular part of her case. As Ms Hutchinson will know, I took precisely the same approach when Comcare was the moving party on a summary judgment application which I dismissed: see Hutchinson v Comcare (No 2) [2018] FCA 1179 at [29]. 39 Comcare is correct to contend that it had put Ms Hutchinson on notice of the inadequacies of her claim as contended for by her submissions. As I have said already, Ms Hutchinson was given the opportunity to reply to Comcare's submissions and address the asserted inadequacies. 40 Accordingly, I will address each of the alleged reprisals by reference to the case put by Ms Hutchinson in Ms Hutchinson's submissions and by reference to the evidence (if any) that those submissions referred to in order to make out the reprisal alleged. In doing so, I will take a broad approach generous to Ms Hutchinson but mindful of avoiding any substantial unfairness to Comcare. 41 It has not been necessary for me to address the very extensive list of objections to Ms Hutchinson's evidence filed by Comcare to which Ms Hutchinson made no response. Broadly, Comcare objected to the admissibility of the evidence filed by Ms Hutchinson on the basis that the evidence was not relevant, was inadmissible hearsay, or consisted of assertions, speculation, conclusions, argument or submissions. There can be no doubt that even on a generous approach to Ms Hutchinson much of the evidence she filed is inadmissible. I need not, however, formally determine each of the objections taken by Comcare. I will do so only and in so far as it is necessary to deal with the evidence specifically relied upon by Ms Hutchinson in support of any particular finding sought by her.

[6]

Ms Brown's Decision of 30 January 2014 42 Doing the best I can to understand this alleged reprisal, it seems that Ms Hutchinson asserts that an employee of Comcare, Gaby Medley Brown, made a decision on 30 January 2014 not to take any action in relation to the December 2013 complaints. Ms Hutchinson alleges that Ms Brown "refused to investigate the matters I had raised as a deliberate reprisal and to cause detriment to me while protecting [herself] and Comcare from the exposure that my 'whistleblower' complaints would likely bring to the Agency". 43 It is not clear what detrimental conduct Ms Hutchinson alleges in relation to this alleged reprisal. Section 13(2) defines "detriment" to include "any disadvantage". I will assume, in Ms Hutchinson's favour, without deciding, that a failure by Ms Brown to deal with the December 2013 complaints is capable of having caused Ms Hutchinson detriment. I will also assume in Ms Hutchinson's favour although I do not accept it to be so, that there was a failure by Ms Brown to deal with the December 2013 complaints. On those assumptions, Ms Brown's decision of 30 January 2014 may be regarded as the detrimental conduct. 44 However, there is no basis upon which I could find that the second and third requisite elements of s 13 of the PID Act have been established. There is no direct evidence that Ms Brown had the PID belief or was motivated by the prohibited reason. The absence of even an allegation to that effect, to which Comcare pointed to in its submission, was not addressed in Ms Hutchinson's reply. Further, I note that the detrimental conduct alleged predates the making of the First Purported PID on 30 January 2014. Ms Hutchinson did however contend, in relation to each of the alleged reprisals, that the premise under which the proceeding has been brought is that all of the employees accused of taking reprisal action against her were motivated to act for a prohibited reason. 45 Even if I were to accept that an implicit assertion was made by Ms Hutchinson that, in making the decision of 30 January 2014, Ms Brown held the PID belief and was motivated by the prohibited reason, Ms Hutchinson's submissions do not address why I should find that Ms Brown had that belief or was so motivated. The existence of the PID belief and whether Ms Brown was motivated by the prohibited reason are matters to which only Ms Brown could give direct evidence. Ms Brown was not called. 46 In her reply submissions, Ms Hutchinson acknowledged the lack of any direct evidence of the PID belief or of the prohibited reason of Ms Brown and of each of the other Comcare employees whom she had accused of taking reprisal action against her. She submitted that in that context she needed to persuade the Court, on the basis of circumstantial evidence, that there was "an arguable inference that a prohibited reason existed". Although Ms Hutchinson mis-stated the standard of proof - I need to be satisfied about those matters on the balance of probabilities not merely on an arguable basis - it is correct to say that in the absence of direct evidence, the Court could be persuaded on the basis of circumstantial evidence, to make findings that a PID belief existed and that a particular employee was motivated to take particular detrimental conduct for a prohibited reason. 47 However, Ms Hutchinson did not, in relation to Ms Brown or any other Comcare employee that she accused of taking reprisal action, identify what circumstantial evidence supported a finding that the employee held the PID belief and was motivated by the prohibited reason. All that Ms Hutchinson submitted, collectively and in relation to each of the alleged reprisals, was that the fact that Comcare chose not to call the relevant employee and have the employee's decision examined and tested in court so that the Court could draw conclusions about belief and motivation, was itself circumstantial evidence sufficient to enable an inference to be drawn that the relevant employee held the PID belief and was motivated by the prohibited reason. 48 Although she did not describe it in these terms, the submission made by Ms Hutchinson was essentially that, on the basis of the Court drawing a Jones v Dunkel (1959) 101 CLR 298 inference, the Court should be satisfied that in each case of an alleged reprisal, the relevant Comcare employee held the PID belief and was motivated by a prohibited reason. 49 I will later set out why I consider a Jones v Dunkel inference is not, in the circumstances, available in relation to any of the reprisals alleged by Ms Hutchinson. 50 Returning to Ms Brown's decision of 30 January 2014, the evidence that Ms Hutchinson referred to in her written submissions, paragraphs 5 to 9 of the Second Affidavit and the letter to Ms Hutchinson from Ms Brown dated 30 January 2014, assuming it is admissible, is not capable of establishing either the PID belief or the prohibited reason. For all those reasons, Ms Hutchinson has not established Ms Brown had the PID belief or was motivated by the prohibited reason. 51 Ms Hutchinson's claim that Ms Brown took a reprisal against her within the meaning of s 13 of the PID Act is rejected.

[7]

Mr O'Connor's Decision of 30 January 2014 52 This alleged reprisal in relation to Paul O'Connor, the CEO of Comcare, was made by Ms Hutchinson in similar, if not the same terms, as the alleged reprisal detailed above in relation to Ms Brown and relies on the same evidence. Ms Hutchinson asserted that Mr O'Connor also made the decision on 30 January 2014 not to take any action in relation to the December 2013 complaints. Ms Hutchinson alleged that Mr O'Connor "purposefully dismissed all my complaints and refused to investigate the matters I had raised as a deliberate reprisal". Ms Hutchinson alleged that Ms Brown made a number of "false and misleading" statements on behalf of Mr O'Connor. 53 Again, it is not clear what detriment Ms Hutchinson alleges in relation to this alleged reprisal. As I have done above, I will make the same assumptions in relation to Mr O'Connor that I made in relation to Ms Brown, and will assume that Mr O'Connor's decision of 30 January 2014 could be regarded as detrimental conduct. 54 However, again, there is no basis upon which I could find that the second and third requisite elements of s 13 of the PID Act have been established. The assertion made by Ms Hutchinson in her reply submissions, that even without being able to test the "rationale" behind Mr O'Connor's decision, that "no confidence can be taken in relation to the legitimacy of the decision [Mr O'Connor] made or his reason for making it" is not supported by any direct evidence that Mr O'Connor had the PID belief or that he was motivated for the prohibited reason in making the alleged decision. Mr O'Connor was not called to give direct evidence. Further, there is no circumstantial evidence identified by Ms Hutchinson that would suffice to draw an inference that Mr O'Connor either held the PID belief or was motivated by the prohibited reason. The rule in Jones v Dunkel is not available to assist Ms Hutchinson. 55 On this basis, I reject Ms Hutchinson's claim that Mr O'Connor took a reprisal against her within the meaning of s 13 of the PID Act.

[8]

Mr Quamby's Decision not to investigate the First Purported PID 56 This alleged reprisal concerns Neil Quarmby, the delegate allocated to investigate Ms Hutchinson's First Purported PID. Mr Quarmby decided on 19 February 2018 that he would not investigate the First Purported PID further on the grounds that it was "vexatious and frivolous". Ms Hutchinson alleges that Mr Quarmby failed to investigate the first complaint "appropriately", and further, that Mr Quarmby "made a 'false and misleading' statement that [Ms Hutchinson's] 'disclosure' of 30 January 2014 was frivolous and vexatious'". 57 Ms Hutchinson alleges that Mr Quarmby's decision was detrimental conduct because "all the people I had named in my 'disclosure' and who I had complained about were never properly investigated for the alleged breaches of the 'Code of Conduct'" and that this allowed them to "continue in their work duties and cause ongoing harm and injury to the compensation recipients they were supposed to be providing public services to, including myself." A failure to appropriately investigate a PID may be detrimental to the scheme of the PID Act. However, Ms Hutchinson needs to prove a detriment personal to her. 58 However, as I have done above, without determining, I will assume that the detriment alleged by Ms Hutchinson that occurred as a result of Mr Quarmby's decision is capable of being a detriment for the purposes of s 13 of the PID Act. 59 It is not in contest that Mr Quarmby knew that Ms Hutchinson had made a PID given it was his role to assess the PID. I therefore find that Mr Quarmby did hold the PID belief. 60 The evidence that Ms Hutchinson seeks to rely on to support this alleged reprisal is paragraph 3 of the First Affidavit and a notice of Comcare's decision not to investigate the First Purported PID dated 28 February 2014. Assuming that this evidence is admissible, it is of no assistance to Ms Hutchinson as it is not capable of supporting a finding that Mr Quarmby was motivated by the prohibited reason. 61 Ms Hutchinson alleged that it was Mr Quarmby's "unique and immediate knowledge" that she had made a PID which led him to take the alleged reprisal. That allegation is not supported by any direct evidence and as I have detailed above, Ms Hutchinson has not identified any relevant circumstantial evidence to support her claim. The rule in Jones v Dunkel is not available to assist Ms Hutchinson. Accordingly, Ms Hutchinson has failed to establish that Mr Quarmby was motivated by the prohibited reason. 62 I reject Ms Hutchinson's claim that Mr Quarmby took a reprisal against her within the meaning of s 13 of the PID Act.

[9]

Ms Gibbons and Ms Fernando's delay in processing the invalidity retirement paperwork 63 Ms Hutchinson alleges that Karen Gibbons, Ms Hutchinson's Claims Manager at Comcare and Manel Fernando, Assistant Director, Lump Sum and Asbestos Team at Comcare "purposefully delayed processing [her] invalidity retirement paperwork" for almost three months from the date of her medical retirement. 64 Comcare contended that Ms Hutchinson did not provide any evidence to establish that her incapacity payments should commence on the same day as her medical retirement, and further that there is no evidence of Ms Hutchinson experiencing any "financial distress" as a result of the asserted delay. Comcare do not suggest that Ms Hutchinson was not entitled to be paid at an earlier time than she was. Given the extensive period in question, I am prepared to infer that there was some delay. I accept that a delay in receiving incapacity payments is capable of constituting detriment for the purposes of s 13 of the PID Act. 65 The evidence that Ms Hutchinson seeks to rely on to support this alleged reprisal is paragraphs 5 to 6 of the First Affidavit. Assuming that this evidence is admissible, it is of no assistance to Ms Hutchinson as it is not capable of supporting either the existence of the PID belief or the prohibited reason. 66 Ms Hutchinson contended that Ms Gibbons and Ms Fernando colluded together to delay the payments as they were aware that Ms Hutchinson had made the First Purported PID in which she had complained about both Ms Gibbons and Ms Fernando. It is possible that because Ms Hutchinson had expressed criticism of them, Ms Gibbons and Ms Fernando were motivated to delay payments due to Ms Hutchinson. However, there is no direct evidence that Ms Gibbons and Ms Fernando held that motivation. There is no evidence that Ms Hutchinson's making of the First Purported PID was widely known amongst Comcare's staff such that Ms Gibbons and Ms Fernando would likely be aware that the First PID was made, let alone aware they were the subject of criticism made by the PID. Even if it had been established that Ms Gibbons and Ms Fernando were aware that they had been the subject of criticism, that fact on its own would not be sufficient to infer that the criticism was a reason for the delayed payment. There are a number of possible reasons for a delay in a payment of compensation including an administrative error or a lack of resources. For all I know, on the evidence before me, the kind of delay experienced by Ms Hutchinson may be commonly experienced by a person receiving incapacity payments for the first time. The evidence does not establish that Ms Hutchinson was singled out. 67 Ms Hutchinson has not established that Ms Gibbons and Ms Fernando had the PID belief, or that they were motivated by the prohibited reason. 68 I therefore reject Ms Hutchinson' claim that Ms Gibbons and Ms Fernando took a reprisal against her within the meaning of s 13 of the PID Act.

[11]

Mr Chant's statements to the Office of the Australian Information Commissioner 73 Ms Hutchinson alleges that Eric Chant, Acting Director of Information, Security and Property at Comcare, made "false and misleading" statements to the Office of the Australian Information Commissioner ("OAIC") and that these statements impacted the remedy that she received from the OAIC. Ms Hutchinson includes a number of paragraphs in her written submissions which I presume to be the alleged false and misleading statements. 74 Ms Hutchinson has not provided the Court with any explanation as to how the statements detailed in her written submissions are false and misleading, nor has she referred to any evidence to support such a contention. Ms Hutchinson has not established that false and misleading statements were made. Further, as Comcare submitted, even if false and misleading statements were made, it is not clear what detriment Ms Hutchinson suffered. Ms Hutchinson has not established that she suffered any detriment. Nor is there any direct or circumstantial evidence to establish that Mr Chant held the PID belief. The only evidence relied upon by Ms Hutchinson is Mr Chant's response to the OAIC and paragraph 326 of the Second Affidavit, assuming this evidence is admissible, it does not establish the requisite elements of s 13 of the PID Act. 75 Furthermore, Ms Hutchinson submitted that the reasons for Mr Chant's conduct were: "a targeted and purposeful reprisal against me to cause me as much harm and detriment as possible"; and to protect "Comcare's position from the potential oversight and enforcement processes the OAIC would be able to bring against an Agency that was knowingly breaching the Privacy Act 1988". 76 Neither of these reasons are the prohibited reason. 77 I reject Ms Hutchinson's claim that Mr Chant took a reprisal against her on the same basis that I have rejected other alleged reprisals. Ms Hutchinson has failed to establish that Mr Chant held the PID belief or was motivated by the prohibited reason.

[13]

Ms Dunn, Ms Schulz and Ms Dalton's waiver request denial 81 Ms Hutchinson alleged that the following officers of Comcare, Helen Dunn, Claims Service Officer, Jenny Schulz, Acting Director and Vicki Dalton, Claims Manager colluded to deny her waiver request. 82 The background to this alleged reprisal is that on 1 December 2014, costs were ordered against Ms Hutchinson following an unsuccessful application in this Court for an extension of time to appeal a decision of the AAT (see Hutchinson v Comcare [2014] FCA 1300). An agreement was made between Ms Hutchinson and Comcare in March 2015 to garnish $50 per fortnight from Ms Hutchinson's incapacity payments to repay the debt. On 6 August 2015, Ms Hutchinson requested that Comcare waive the remaining debt ($2,900) due to her financial difficulties ("Waiver Request"). On 6 November 2015 Ms Dunn sent a minute to Ms Dalton recommending that the Waiver Request be declined and on 9 November 2015 Ms Schulz and Ms Dalton each signed the minute to indicate their support for Ms Dunn's recommendation. 83 On 10 November 2015 Ms Dunn wrote to Ms Hutchinson informing her that her Waiver Request had been declined. Ms Dunn's letter acknowledged that Ms Hutchinson had some financial difficulties, but declined the Waiver Request firstly, as the Statement of Financial Circumstances provided to Comcare did not give a complete representation of Ms Hutchinson's financial situation and secondly, because Ms Hutchinson continued to reduce her credit card balance by the same rate indicated before she commenced repaying the debt to Comcare. Ms Dunn informed Ms Hutchinson of her ability to seek a review of the decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the relevant grounds of review. 84 Ms Hutchinson alleged that the summary of her claims history and financial particulars compiled by Ms Dunn "presented an entirely 'false and misleading' picture to ensure the CEO would be able to justify denying the 'waiver' request." Ms Hutchinson further alleged that Ms Dunn, Ms Schulz and Ms Dalton were so determined that her Waiver Request be denied that they arranged for the sign off on the waiver denial without the CEO's consideration being taken into account. There is no evidence to which I have been referred to that could support that allegation. Nor has Ms Hutchinson explained, let alone established, the false and misleading statements allegedly made by Ms Dunn or the alleged collusion. 85 Ms Hutchinson has not established that these individuals held any animus against her as a foundation to support the holding of the prohibited reason. 86 The only evidence that Ms Hutchinson has referred to is paragraphs 23 to 26 of the First Affidavit and the letter sent to Ms Hutchinson by Ms Dunn on 10 November 2015 attaching the minute. This evidence does not support either the existence of the PID belief or the holding of the prohibited reason. 87 I accept that the refusal of the Waiver Request is detrimental conduct. However, neither Ms Dunn, Ms Schulz or Ms Dalton gave evidence. There is no direct or other evidence to support a finding of any of those persons possessing the PID belief or being motivated by the prohibited reason. The rule in Jones v Dunkel is not available to assist Ms Hutchinson. 88 I reject Ms Hutchinson's claim that Ms Dunn, Ms Schulz and Ms Dalton took a reprisal against her within the meaning of s 13 of the PID Act.

[15]

Ms Keith's provision of Ms Hutchinson's pre-employment medical record 92 Nerolie Keith was Ms' Hutchinson's former Rehabilitation Case Manager. Ms Hutchinson alleged that Ms Keith provided the information requested pursuant to the s 71 notice "because she suspected I had or would make a PID to Comcare and was willing to do anything to assist others in taking reprisals against me". Ms Hutchinson alleged that the information that Ms Keith provided to Ms Dunn was used to deny the Secondary Claim, and was an "unauthorised disclosure" and a breach of the Privacy Act as the information in the pre-employment medical record was "not relevant" to the matter being assessed. 93 Comcare submitted that s 71 of the SRC Act empowers Comcare to require Commonwealth authorities or entities to give Comcare, in its capacity under the SRC Act, such documents and/or information specified in a s 71 notice, being documents and/or information in the possession, custody or control of the authority or entity. Comcare further submitted that Ms Hutchinson is not competent to make the assessment that the pre-employment medical record was not relevant. 94 It is helpful to set out s 71 of the SRC Act under which Ms Dunn's request to Ms Keith was made: (1) Without limiting the generality of section 70, Comcare may, by notice in writing, require the principal officer of an Entity, a Commonwealth authority or a licensed corporation to give Comcare, within such period as is specified in the notice, such documents or information (or both) as are specified in the notice, being documents or information in the possession, custody or control of the Entity or authority that are relevant to a claim made by, or in relation to, an employee of the Entity or authority or that relate to the performance of functions or the exercise of powers by the principal officer under Part III. (2) A principal officer to whom a notice is given shall comply with the notice without delay. 95 I assume that Ms Keith is a "principal officer" for the purposes of s 71 of the SRC Act and she is statutorily obliged to comply with the s 71 notice issued by Ms Dunn without delay. Section 71 requires Ms Keith to provide Comcare with documents or information in her possession that are "relevant" to the claim made by Ms Hutchinson. The consideration of whether or not information is "relevant" is a matter for which Ms Keith must exercise her statutory discretion. 96 Ms Hutchinson has not referred to any evidence that demonstrates that the information that Ms Keith provided to Ms Dunn was clearly irrelevant or further, that were Ms Keith aware that Ms Hutchinson had made the PID, that she harboured such resentment towards Ms Hutchinson that she was motivated to exercise her discretion unlawfully. The only evidence referred to is paragraphs 35 to 37 of the First Affidavit, which is not capable of supporting such a conclusion, even were I to find the evidence to be admissible. 97 I have accepted that the denial of the Secondary Claim constitutes detrimental conduct. I will presume, without determining, that Ms Keith's provision of the medical record was instrumental in the denial of the Secondary Claim. However, Ms Hutchinson has not referred me to any evidence that could support a finding of the other requisite elements of s 13 of the PID Act. Ms Keith did not give evidence. There is no direct or other evidence of her holding the PID belief or being motivated by the prohibited reason. The rule in Jones v Dunkel is not available to assist Ms Hutchinson. 98 I reject Ms Hutchinson's claim that Ms Keith took a reprisal against her within the meaning of s 13 of the PID Act.

[16]

Ms Dunn's requests for medical information from Ms Hutchinson's treating practitioners 99 Ms Hutchinson alleges a large number of reprisal actions taken by Ms Dunn, the nature of those alleged reprisals involves the obtainment of medical information. Those allegations relate to medical information obtained from the following practitioners: Dr Dunne, Dr Ten, Dr Vasey and Dr Barbarich. The alleged reprisals are said to be the use of a "false and misleading" statement or a "fraudulent" statement to unlawfully obtain medical information from her treating practitioner for the purpose of uncovering evidence to defeat the Secondary Claims. An example of this alleged reprisal is a request sent by Ms Dunn to Dr Barbarich, Ms Hutchinson's General Practitioner, on 16 June 2015 requesting a medical report to which Ms Dunn claimed to attach Ms Hutchinson's signed authority. 100 Ms Hutchinson's main grievance appears to be that Ms Dunn attached to her letter a copy of the original authority for the release of information that Ms Hutchinson signed in 2011 and not an updated, current and specific consent to the release of the particular report. This is described by Ms Hutchinson as a breach of the Privacy Act 101 It is not unreasonable for Comcare to request an updated medical report from Ms Hutchinson's treating practitioner as a condition of her receipt of compensation. Indeed, in the example stated above, the letter from Ms Dunn states that the reason for the request is to "ensure accuracy in the management of Ms Hutchinson's claim" following a recent medical certificate which stated a new diagnosis. The only other evidence that Ms Hutchinson referred to is the complaint that she made to Comcare on 30 November 2015 ("November Complaint") and the evidence dealt with at paragraph [79], which is not capable of supporting the existence of a PID belief or the holding of the prohibited reason. 102 I have accepted that the denial of Ms Hutchinson's Secondary Claim constitutes detrimental conduct, I understand Ms Hutchinson's submissions to state that the denial of her Secondary Claim is the direct consequence of Ms Dunn's alleged conduct. However, I reject these alleged reprisals on the same basis that I have rejected Ms Hutchinson's other alleged reprisals. In each case Ms Hutchinson has not established either the PID belief or the prohibited reason.

[22]

Denial of Secondary Claim 119 Ms Hutchinson alleged that Ms Dunn's decision of 11 December 2015 to deny the Secondary Claim was a reprisal taken against her. Ms Hutchinson takes issue with Ms Dunn's reliance on her pre-employment medical record as the basis for this decision. I have earlier referred to Ms Hutchinson's concerns with the procurement of that medical record. 120 Ms Hutchinson alleged that Ms Dunn made "false and misleading" statements in her decision to deny the Secondary Claim, Ms Hutchinson has identified the following as the most notable of those statements: While you have stated on several occasions that your pre-morbid weight was approximately 75kg, review of your file indicated that this was following an extensive period of illness which resulted in an extended hospitalisation and a subsequent loss of weight. The evidence of your pre-employment medical indicated that in actuality you had a BMI in the morbidly obese range prior to your compensable condition and had only sustained a reduction in your weight as a result of an extended illness. Ms Hutchinson alleges that the above statement, apart from the sentence "…your pre-employment medical indicated that in actuality you had a BMI in the morbidly obese range" is a complete fabrication. However, she has not referred to any evidence that demonstrates this. 121 The only other evidence that Ms Hutchinson refers to is Ms Dunn's letter to her regarding the denial of the Secondary Claims, Ms Dunn's statement of response and a quality assurance form. None of this evidence, assuming it is admissible, is capable of supporting a conclusion that Ms Dunn held the PID belief or was motivated by the prohibited reason. 122 As I have said, the denial of the Secondary Claim was detrimental to Ms Hutchinson. However, for the reasons I have detailed in relation to Ms Hutchinson's previous alleged reprisals, this alleged reprisal must also be rejected. Ms Hutchinson has failed to establish that Ms Dunn held the PID belief or was motivated by the prohibited reason.

[23]

Allegation against Ms Ploy 123 I understand that by this alleged reprisal Ms Hutchinson asserts that Ms Barbara Ploy, Review Officer at Comcare, took detrimental action against her by making a decision on 25 February 2016 to affirm Ms Dunn's decision to deny the secondary claim ("reconsideration decision"). Ms Hutchinson alleged that Ms Ploy made "false and misleading" statements in her reconsideration decision. Specifically, she alleged that Ms Ploy "quite substantially altered and re-interpreted the medical evidence that had been provided by one of Comcare's own IME specialists, Dr Spear, Consultant Psychiatrist". 124 Ms Hutchinson relied on the following paragraph of Ms Ploy's report which recorded Dr Spear's findings as an example of Ms Ploy's re-interpreting: in 2007 your weight had increased from 75kg to 107kg as a result of stressors, including stress related to personal issues such as your leukaemia diagnosis, leukaemia treatment, haemochromatosis and challenges with a new director. Ms Hutchinson has not referred to any evidence which would contradict Ms Ploy's findings. As Comcare noted, the report of Dr Spear was not put in evidence. The only evidence Ms Hutchinson referred to is Ms Ploy's letter of reconsideration of the determination and paragraphs 52 and 62 to 64 of the First Affidavit, even if it were admissible this evidence is not capable of establishing the requisite elements of s 13 of the PID Act. Ms Ploy did not give evidence. 125 Ms Hutchinson submitted that the Second Purported PID was released onto her claim file and subsequently accessed by Comcare officers. The evidence to which Ms Hutchinson referred is not capable of establishing this submission. However, I am aware, from the PID Act Investigation Report of Ms Skippington which Ms Hutchinson tendered yet did not rely upon to support this submission, that Comcare conceded that the Second Purported PID was scanned to her claim file on 5 January 2016 and accessed by central feedback staff and the claim manager between 5 January 2016 and 23 February 2016 and by legal and IT staff between 6 July 2016 and 9 August 2016 and deleted from the claim file on 9 August 2016. This supports the conclusion that anyone who dealt with Ms Hutchinson's claim file, in the period between 5 January 2016 and 9 August 2016 ("relevant period") may have come across the Second Purported PID. The likelihood of that, however, is difficult to assess in the absence of any evidence of how the file was ordered and the nature of and extent of the likely access to Ms Hutchinson's file by those who were likely to have had access in relevant period. I will presume, without determining, that each person who likely had recourse to the claim file during the relevant period held the PID belief. I am unable to make the same presumption in relation to persons who accessed the claim file after the relevant period as no evidence has been referred to that demonstrates that the PID was accessible after 9 August 2016. I will presume that Ms Ploy held the PID belief because the reconsideration decision was made in the relevant period and to make that decision it is likely that Ms Ploy would have accessed Ms Hutchinson's claim file. 126 I reject this alleged reprisal. Even if I were satisfied of detrimental conduct and the existence of the PID belief, on the same basis as earlier discussed, Ms Hutchinson has not established the prohibited reason.

[27]

Gary Jefferey 132 Doing my best to interpret Ms Hutchinson's submissions, I understand that this alleged reprisal concerns Mr Jefferey's alleged delay in responding to Ms Hutchinson's complaints and requests which Ms Hutchinson claimed "allowed me to be victim to further bias and prejudice by Comcare". Ms Hutchinson alleged that Mr Jefferey engaged in "actions, omissions, 'false and misleading' statements and representations', which "augmented a denial of procedural fairness that allowed my rights and entitlements under the SRC Act to be denied". 133 As Comcare submitted, Ms Hutchinson wrote to Mr Jefferey on various occasions between 12 January 2016 and 24 May 2016: (a) requesting that he "take action" against various Comcare officers; (b) requesting that her Compensation Claim be transferred to another claims manager; (c) regarding his decision to have an internal "case review" conducted by Loretta Tolland, a member of Comcare's internal legal team to address Ms Hutchinson's concerns over the management of her claim; (d) regarding his decision to refer the case review to an external legal firm, which was taken as a result of Ms Hutchinson's objection to an internal case review; and (e) regarding delays in the conducting of the case review. 134 Ms Hutchinson has not articulated what detriment she suffered as a consequence of the alleged delays, Ms Hutchinson's assertions of further victimisation and bias are not supported by any evidence. Ms Hutchinson's allegations that Mr Jefferey made "false and misleading" statements are not substantiated, she has not articulated what statements were made, if any, and why the statements are false and misleading. Further, Ms Hutchinson has not detailed how she has been denied procedural fairness by Mr Jefferey's actions. 135 I will assume that Mr Jefferey held the PID belief, without making any determination. This is on the basis that Ms Hutchinson informed Mr Jefferey that she had made a PID in the email of 14 March 2016. Comcare has not asserted in its submission that Mr Jefferey did not hold a PID belief. 136 The only evidence that Ms Hutchinson refers to is her email correspondence with Mr Jefferey, paragraphs 59 to 86 of the First Affidavit, 25 to 35 of the Second Affidavit and a letter of 11 July 2016 from Mr Jefferey regarding her letter of complaint and attaching McInnes Wilson Lawyers independent review of Ms Hutchinson's file. None of this evidence is capable of supporting the conclusion that Mr Jefferey was motivated by the prohibited reason, even were it found to be admissible. 137 Comcare stated in its submissions that the correspondence with Mr Jefferey discloses, on its face, that: (a) Mr Jefferey was, in good faith, attempting to deal with Ms Hutchinson's concerns about the handling of her compensation claim; and (b) the delays complained about were, in large part, a result of Ms Hutchinson's objection to the conducting of an internal review, and the necessity to brief a legal panel and put the review out to tender to external providers. 138 Ms Hutchinson did not respond to Comcare's submission in her reply submissions. 139 Ms Hutchinson later refers to a "cover-up" by Mr Jefferey, that the report prepared by McInnes Wilson Lawyers was prepared on 10 May 2016 and only provided to her on 11 July 2016 as Comcare requested the report be rewritten to omit any references to potential breaches of the code of conduct. The evidence which Ms Hutchinson refers to is paragraphs 33 to 49 of the Second Affidavit and her Freedom of Information request to Comcare. Neither are capable of establishing this submission. 140 I reject this alleged reprisal. On the same basis as earlier discussed, Ms Hutchinson has not established that Mr Jefferey was motivated by the prohibited reason.

[30]

Allegation against Cathy Skippington 143 Ms Hutchinson seeks to impugn the conduct of Cathy Skippington, Deputy Chief Executive Officer at Comcare, to whom the Second Purported PID was allocated for investigation in accordance with the PID Act. 144 Ms Hutchinson alleged that Ms Skippington engaged in "disingenuous actions, deliberate omissions, 'false and misleading' statements and misrepresentations" in order to "effect a 'cover-up' of Comcare's malfeasance and maladministration through the manipulation and control of the official PID investigation process". 145 Ms Hutchinson makes reference to a number of extensions sought and granted by Ms Skippington, which appear to be related to two additional requests made by Ms Hutchinson in March 2016 and August 2016, to include further evidence and allegations in the investigation of the Second Purported PID. 146 I repeat the point that I made above, that I am not convinced that a failure to investigate a PID could be said to be a personal detriment to the maker of the PID. However, I will assume, without determining, that a failure to investigate a PID is capable of constituting a detriment under s 13 of the PID Act. 147 As Ms Skippington's role was to investigate Ms Hutchinson's Second Purported PID, I find that Ms Skippington held the PID belief. 148 In support of her allegation, Ms Hutchinson relied on Ms Skippington's report that I have earlier referred to and alleges that the "report is, for all intents and purposes, a document that confirms all the criminal activities that Comcare regularly engages in to prevent scrutiny and accountability being brought to bear against a government Agency". 149 Ms Skippington's report recorded a finding that "there is no evidence to support the contention made by [Ms Hutchinson] regarding fraudulent and unlawful behaviours undertaken by Comcare claims management staff". It records that the investigation took 15 days over various weeks, and that an independent file review was completed over a six week period. The report recorded that Ms Skippington had regard to information provided by Ms Hutchinson on 19 December 2015 and 14 March 2016. 150 On its face, the report appears to provide a rational basis for Ms Skippington's decision, identifying the information she relied on and the conclusion reached. Ms Hutchinson has not articulated what aspect of the report was subject to false and misleading statements or otherwise justified the very serious allegations made against Ms Skippington and Comcare. I note that the report made findings that administrative errors had occurred which illustrated a lack of care and diligence in the handling of Ms Hutchinson's claim. In particular, late payments of medical expenses, delays in providing responses to correspondence, incorrect references to sections of the SRC Act and paraphrasing of medical evidence which resulted in a change of meaning. The report listed a number of recommendations to improve the management of Ms Hutchinson's claim. 151 The other evidence that Ms Hutchinson refers to is paragraphs 36 to 117 of the Second Affidavit and an earlier PID Act Investigation Report. None of that evidence, even if it were admissible, establishes that Ms Skippington was motivated by the prohibited reason. 152 I reject this alleged reprisal. On the same basis as earlier discussed, Ms Hutchinson has not established the prohibited reason.

[33]

Jessica Miller 157 Ms Hutchinson appears to allege that Jessica Miller, Senior Privacy Officer at Comcare, provided Juliet Morris, the OAIC investigation delegate, with "incorrect information to continue the ongoing reprisal agenda that Comcare was continuing against me". Ms Hutchinson alleged that this was directly detrimental to her as it negatively impacted her financial situation, in particular, any monetary gain that the OAIC may have been able to secure for her through an agreement with Comcare. 158 The "false and misleading" statement that Ms Miller is alleged to have made is contained in an email to Ms Morris dated 21 September 2016. The statement is included in Ms Hutchinson's written submissions and states as follows: A copy of Ms Hutchinson's pre-employment medical report was provided to Dr O'Daly as relevant documentation for an IME under section 57 of the SRC Act. Therefore, Comcare considers that the Ms Hutchinson's personal information was collected and disclosed in an appropriate manner and for the primary purpose of managing Ms Hutchinson's claim for consideration of secondary medical conditions. In September 2015 Comcare collected a copy of Ms Hutchinson's pre-employment record under section 71 of the SRC Act. Comcare collected this information for the primary purpose of managing Ms Hutchinson's claim under the SRC Act.' 159 Ms Hutchinson has not stated what aspect of the above statement is "false and misleading" and why that may be the case. The only evidence referred to by Ms Hutchinson is a letter from Ms Miller to Ms Morris dated 21 September 2016 which contains Comcare's response to the OAIC's request for further information. Even if this letter were admissible it is not capable of establishing that Ms Miller was motivated by the PID belief or the prohibited reason. 160 I will assume that Ms Miller accessed Ms Hutchinson's claim file from 1 September 2016 in order respond to the questions posed by the OAIC in their letter of 1 September 2016 which related to the handling of Ms Hutchinson's claim. I have not been referred to any evidence, however, to suggest that Ms Miller had access to the claim file during the relevant period. 161 I reject this alleged reprisal. Even if it be accepted that there was detrimental conduct, on the same basis as earlier detailed, Ms Hutchinson has not established the PID belief or the prohibited reason.

[34]

Elizabeth Phillips 162 I understand this alleged reprisal to be similar to that made above in relation to Ms Miller. Ms Hutchinson alleged that Ms Phillips, Assistant Director at Comcare, made "false and misleading" statements to the OAIC's investigating delegate in respect of the disclosure of her pre-employment medical report to law firms McInnes Wilson Lawyers and Spark Helmore and the AAT. 163 In her written submissions Ms Hutchinson includes a paragraph from Ms Phillips response to the OAIC which Ms Hutchinson has designated as "false and misleading". In a response to the OAIC, Ms Phillips explained that the pre-employment medical record was provided to: (a) McInnes Lawyers, for the purpose of its review of Ms Hutchinson's claim due to her perceptions of bias in Comcare's decision making process; (b) Spark Helmore Lawyers, who were engaged to represent Comcare in the AAT following Ms Hutchinson's complaint, and that the letter was provided as it related to the AAT proceedings. 164 Comcare noted that Ms Hutchinson's real complaint appears to be that the pre-employment medical record was not relevant to the determination of her claim, and thus should not have been provided to the independent medical examiner and should not have been taken into account in Comcare's determination. The allegations that Ms Phillips' statements were "false and misleading" stem from this point of difference between Ms Hutchinson and Comcare, who clearly hold different views on relevance. 165 Ms Hutchinson has failed to show how the provision of the above information to the OAIC negatively impacted the assessment of the OAIC such that it could be detrimental to her. If I presume that Ms Hutchinson was subject to detriment, I would still not be satisfied that Ms Hutchinson has demonstrated that Ms Phillips held the PID belief or was motivated by the prohibited reason. The only evidence that Ms Hutchinson referred to was the letter from Ms Phillips to Ms Morris dated 9 November 2016 in response to a request that Comcare provide information regarding Ms Hutchinson's OAIC complaint. This evidence is not capable of supporting a conclusion that Ms Phillips held the PID belief or was motivated by the prohibited reason. The letter demonstrates that Ms Phillips likely had access to Ms Hutchinson's claim file in order to respond to the questions posed by the OAIC in the letter of 2 November 2016. I have not been referred to any evidence that establishes that Ms Phillips had access to the claim file during the relevant period. 166 I reject this alleged reprisal. On the same basis as earlier discussed, Ms Hutchinson has not established either the PID belief or the prohibited reason.

[36]

Allegations regarding cessation of claim 172 This alleged reprisal is in similar terms to the reprisal above, however, in respect of Ms Dunn's determination of no present liability for Ms Hutchinson's Comcare claim dated 20 July 2017. 173 As detailed in Ms Hutchinson's written submissions, the decision was predicated on the fact that Ms Dunn had received a certificate from Ms Hutchinson's former general practitioner, Dr Brooker, which cited a letter from Ms Hutchinson's psychologist, Dr Dellar, and which alleged that Ms Hutchinson was no longer suffering from PTSD and was in remission from major depressive disorder and that most of the stress she was experiencing was as a result of her loss of quality of life such as a career and interpersonal functioning. Ms Dunn further cited a more recent letter from Dr Dellar in her reasons for issuing the cessation of present liability. 174 Ms Hutchinson alleged, without any substantiation, that Ms Dunn's decision: (a) was not made in accordance with the SRC Act; (b) was a very serious breach of the Privacy Act; (c) constituted "false and misleading" statements and misrepresentations; (d) constituted a breach of a "duty of care" under the Work Health and Safety Act 2011 (Cth) ("WHS Act"); (e) was not in accordance with the medical evidence presented; and (f) took into account irrelevant material. 175 The determination of no present liability, which Ms Hutchinson provided as evidence, demonstrates a more sensible alternative basis for the decision, that Ms Dunn was motivated by the letters that she received from Ms Hutchinson's treating practitioners. The other evidence referred to, paragraphs 27 to 49 of the Fifth Affidavit, is not helpful and does not support Ms Hutchinson's submission. 176 I accept that the cessation of Comcare's liability for Ms Hutchinson's primary claim was detrimental conduct. On the same basis as earlier discussed, Ms Hutchinson has failed to establish the prohibited reason. This alleged reprisal is rejected.

[37]

Allegations regarding the Quality Assurance process 177 Doing the best I can to decipher the allegations made by Ms Hutchinson in relation to this alleged reprisal and assisted by Comcare's description, which Ms Hutchinson did not contest in her oral submission, I understand this reprisal to impugn the actions of Ms Dunn and Ms Schulz in signing a "Determination Quality Assurance Form - Ongoing" ("Form") in respect of the cessation of Ms Hutchinson's compensation claim. Ms Hutchinson makes very serious allegations against both Ms Dunn and Ms Schulz, that they took the alleged reprisal with the intention of prompting an act of self-harm by Ms Hutchinson. 178 Ms Hutchinson alleged that the signing of the Form excluded "the mandatory requirement of considering Comcare's onus to provide a duty of care prescribed by the WHS Act." Ms Hutchinson appears to allege that ss 28 and 30 of the WHS Act impose a "mandatory requirement" on Ms Dunn and Ms Schulz to exercise a duty of care in relation to her. Further, Ms Hutchinson appears to allege that Ms Dunn and Ms Schulz breached this duty of care by signing the Form despite her treating psychologist's note that "if treatment were to cease abruptly then her risk of suicide would significantly increase". I do not make any decision about whether or not Ms Dunn and Ms Schulz owed Ms Hutchinson a duty of care. It is not clear what disadvantage or detriment is being alleged. A failure to exercise a duty of care may lead to detriment but need not necessarily. Ms Hutchinson has not identified what was the detrimental consequence for her of the alleged failure. 179 Ms Schulz has had an ongoing role in the management of Ms Hutchinson's compensation claim and is the manager of Ms Dunn who was managing the claim during the relevant period. Although no specific evidence was referred to by Ms Hutchinson that demonstrated that Ms Schulz accessed the Second Purported PID on the claim file during the relevant period, it is possible that she did, and I will therefore presume, without determining that Ms Schulz had access to the Second Purported PID and therefore held the PID belief. . 180 However, even on that presumption and if I assume that the alleged failure to exercise a duty of care constituted detriment, on the same basis as earlier discussed, Ms Hutchinson has failed to establish the prohibited reason.

[41]

Refusal to recommence claim 192 Ms Hutchinson alleged that she suffered a relapse of her major depressive disorder as a result of an injury she sustained when she attended Dr Brooker on 22 May 2017 to obtain a medical certificate. On 1 October 2017 Ms Hutchinson applied to her new Comcare Claims Officer, Chris Gallagher, to recommence her Compensation Claim. On 9 October 2017 Mr Gallagher denied Ms Hutchinson's application. Ms Hutchinson alleged that Mr Gallagher's denial of her application to recommence her claim is a reprisal under the PID Act. 193 Ms Hutchinson has included Mr Gallagher's reasons for decision in her written submissions which are set out below: I note that Comcare has not accepted liability for a psychological injury occurring on 22 May 2017 nor have you provided any evidence to support that you continue to suffer from your previously accepted conditions. 194 Ms Hutchinson alleged that she then asked Mr Gallagher on 10 October 2017 for the quality assurance form in relation to his denial decision. Mr Gallagher responded on 16 October 2017 that his determination did not require a quality assurance sheet. 195 Ms Hutchinson alleged that Mr Gallagher was "no doubt" influenced by Ms Schulz in taking the reprisal against her. Ms Hutchinson does not provide any evidence as to why the Court should conclude that Ms Schulz played any role in Mr Gallagher's decision. 196 Ms Hutchinson referred to the following evidence in her written submissions - her application to recommence her compensation claim, Mr Gallagher's determination of no present liability, and an email from Mr Gallagher dated 16 October 2017. Assuming this evidence is admissible, it does not establish the requisite elements in s 13 of the PID Act. Further, Ms Hutchinson has not referred to any evidence that is capable of establishing that Mr Gallagher had access to her claim file during the relevant period. 197 I reject the alleged reprisal against Mr Gallagher on the same basis that I have rejected other alleged reprisals made by Ms Hutchinson. Assuming detrimental conduct, Ms Hutchinson has not established either the PID belief or the prohibited reason.

[43]

Allegations regarding the reconsideration decision (refusal to recommence claim) 201 Ms Hutchinson alleged as a reprisal, Ms Mohr's decision of 6 November 2017 to affirm Mr Gallagher's decision to refuse to recommence liability for her Compensation Claim. Ms Hutchinson alleged that Ms Mohr's "actions, omissions, 'false and misleading' statements and misrepresentations augmented a denial of procedural fairness that have allowed my rights and entitlements under the SRC Act to be denied." Ms Hutchinson has inserted what she refers to as a "full transcript" of Ms Mohr's decision as evidence in her written submissions. Comcare have not made any submissions as to the accuracy of the "full transcript" inserted in the written submissions, I will presume that this is not in issue. Ms Hutchinson then makes the following remarks regarding the "full transcript" in her written submissions It would be a futile exercise at this point and in this setting to document all the impediments that infect this reconsideration decision. Suffice to say, it conveys all that is essential in showing how an abuse of administrative power is used by Comcare to manage its compensation liabilities. 202 Ms Hutchinson has not detailed the basis upon which she asserts that Ms Mohr's decision was infected by impediments. Contrary to Ms Hutchinson's submission above, it is of utmost importance that Ms Hutchinson's reasons for impugning Ms Mohr's decision be articulated before this Court. The evidence submitted by Ms Hutchinson, the "full transcript", does not on the face of it disclose any suggestion of Ms Mohr holding the PID belief or being motivated by the prohibited reason. Ms Mohr provides, what appears to me to be a reasonable justification for her decision. 203 Ms Hutchinson has not detailed on what basis she has experienced a detriment as a result of Ms Mohr's decision, but I will assume, without deciding, that Ms Mohr's decision was detrimental to Ms Hutchinson. 204 Again, I reject Ms Hutchinson's alleged reprisal on the same basis that I have rejected other alleged reprisals made by her. She has failed to establish either the PID belief or the prohibited reason.

[46]

Jones v Dunkel 213 As earlier foreshadowed, I now set out why a Jones v Dunkel inference is not available to assist Ms Hutchinson's case. It will be recalled that it was Ms Hutchinson's submission that the Court should (in effect) draw a Jones v Dunkel inference from the failure of Comcare to call the various officers whose decisions, actions and omissions Ms Hutchinson seeks to impugn. Ms Hutchinson has asked the Court to draw an inference that Comcare did not call the officers to give evidence "because they know they would likely incriminate themselves and expose their Commonwealth employer to vicarious liability" 214 The Jones v Dunkel principle was set out by Kitto J at 308 as follows: ... any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put a true complexion on the facts relied on as the ground for the inference, has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. 215 It is well established that the rule in Jones v Dunkel cannot be used to make up for a deficiency of evidence in a proceeding: Jones v Dunkel at 312 (Menzies J) and 321 (Windeyer J); Kordan Pty Limited v Commissioner of Taxation [2000] FCA 1807 at [48] (Hill, Dowsett and Hely JJ). The rule in Jones v Dunkel does not permit a gap in evidence to be filled. As Kenny J observed in Marku v Minister for Justice (2015) 237 FCR 580 at [68]: [w]hile the principle may operate to make evidence or inferences that may be drawn from admissible evidence more probable, the principle does not permit a failure to call a witness … to fill gaps in the evidence or transform conjecture into inference. If Ms Hutchinson's evidence had provided a basis for the drawing of an inference (in each case) that the PID belief or the prohibited reason existed, Comcare's failure to call the relevant officer may have provided a basis, in the application of the rule in Jones v Dunkel, for more confidently drawing that inference. However, that was not so and, in the circumstances, Comcare's failure to call the relevant officers was explicable.