Hutchinson v Comcare

This proceeding 12 On 8 July 2020 Ms Hutchinson commenced the present application for judicial review. She seeks review of the decision of 11 June 2020. Under the heading 'Details of claim' the application says: I am aggrieved by the conduct of Comcare in the making of the decision of 11 June 2020 by Gary King because he; 1. was not impartial or free of actual or apparent bias, 2. made findings that were not based on evidence that was genuine, relevant or logically capable of supporting those findings. 13 Under the heading 'Grounds of application' the application is said to be brought under s 6 of the ADJR Act on the grounds of breach of the rules of natural justice (s 6(1)(a)), non-observance of procedures that are required to be observed (s 6(1)(b)) and error of law (s 6(1)(f)). It may be that in fact the corresponding provisions of s 5 of the ADJR Act should have been invoked, as s 6 concerns conduct for the purpose of making a decision, whereas in this case the decision has been made. But nothing turns on that for present purposes. 14 Then, still under the heading 'Grounds of application', the application says (emphasis in original): 1. I allege that Gary King, in his decision dated 11 June 2020 erred by: • 'cherry picking' medical evidence that was adverse to my interests supporting Comcare's view that my employment was not the 'significant' contributor to my claimed condition of 'agoraphobia,' even where the preponderance of medical evidence available established that my 'employment' was the sole causal factor in the development of my agoraphobia condition, • accepting and relying on the opinions contained in the supplementary report of Dr. O'Daly dated 28 January 2016 and Dr. Spear's reports dated 21 February 2018 and 17 August 2018 when those opinions had been emphatically and convincingly shown to be 'false and misleading' in material particular [sic] and additionally were inconsistent with the overwhelming weight of medical evidence provided by numerous psychiatrists (including Dr. Spear in his report of 3 April 2012) and a treating specialist psychologist as contained on my claims file since 2011, and • creating an error of law by failing to base his determination on genuine 'cause' and employment 'contribution' of my 'agoraphobia' condition by neglecting to have regard to 'all' the medical evidence that was readily available to him and was required to be observed as 'natural justice/procedural fairness' attendant to any administrative decision making process conducted by the Commonwealth government. 2. I apply to the Court to review Comcare's conduct in making a bad faith offer when I was invited to participate in an Alternative Dispute Resolution (ADR) process in relation to the decision of 11 June 2020 when Comcare had no genuine intention of ever settling my claim and just wanted to inconvenience and delay the matter, hoping I would take the matter to the AAT once more where they could protract the issues being agitated until such time as they would make the decision when to enter into settlement negotiations, which is usually just prior to the matter coming on for hearing, often taking more than twelve months after the appeal has been lodged. 15 Ms Hutchinson seeks a declaration that Comcare has not adhered to the SRC Act and has denied her statutory entitlements under that Act. She also seeks an order that the subject decision be reconsidered according to law, an order that Comcare pay interest for the agoraphobia claim being refused since 2016, and a declaration that Comcare has breached the model litigant obligations found in the Legal Services Directions 2017 (Cth).

Whether the application for dismissal under s 10(2)(b)(ii) should be entertained now 16 Comcare seeks dismissal of the application pursuant to s 10(2)(b)(ii) of the ADJR Act, before a full hearing, effectively by way of determination of a separate question under r 30.01 and r 30.02 of the Federal Court Rules 2011 (Cth). So it is necessary first to consider whether its application should be determined as a preliminary issue. 17 Ms Hutchinson did not offer any opposition to determining the question now; her opposition was all directed to the merits of Comcare's application. It is well recognised that it can be appropriate to exercise the discretion under s 10(2)(b)(ii) at an early stage in the proceeding: see Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523 at 530; ActewAGL Distribution v The Australian Energy Regulator [2011] FCA 639; (2011) 195 FCR 142 at [190] (Katzmann J). If the proceeding is dismissed, it will save costs and court time. I am satisfied that the court should make a determination one way or another under s 10(2)(b)(ii) at this stage in the proceeding.

The parties' respective contentions on the interlocutory application 18 Section 10(1) of the ADJR Act provides that the rights conferred by provisions including s 5 and s 6 are in addition to and not in derogation of any other rights that an applicant has to seek review, whether by a court or other tribunal. But s 10(2) gives the court discretions to dismiss applications in various circumstances where there is more than one relevant avenue of review available to the applicant. Section 10(2)(b)(ii), on which Comcare now relies, confers the discretion to refuse an application under the ADJR Act in respect of a decision, for the reason 'that adequate provision is made' by a law other than the ADJR Act under which the applicant is entitled to seek review of the relevant decision. 19 The subject decision was made under s 62 of the SRC Act. Section 64(1) of the SRC Act gave Ms Hutchinson a right to apply to the AAT for review of that decision. Comcare says that this is adequate provision for review made by another law for the purposes of s 10(2)(b)(ii) of the ADJR Act. It says that review by the AAT is better suited to efficient resolution of the dispute than the relatively formal and expensive process of judicial review in this court. Also, the AAT has power to substitute its own decision, more favourable to Ms Hutchinson than the decision of 11 June 2020, if that is the correct and preferable decision, while this court does not have that power, and has only limited jurisdiction to make factual findings. Comcare also relies on the fact that it has made decisions on compensation for Ms Hutchinson's claimed agoraphobia on four occasions so far and she is manifestly dissatisfied with its decision-making process. But if Ms Hutchinson is successful in this proceeding, the result will be that the matter is remitted to Comcare to decide it a fifth time. Comcare says that exercising the court's discretion now will avoid significant waste of costs and court time if the matter proceeds to a full hearing. 20 Ms Hutchinson accepts that, unlike the AAT, the court cannot substitute its own decision for the decision of the delegate. She understands that for that reason, some of the orders she seeks are beyond the power of the court to make. But she maintains that the matter should be determined in this court under the ADJR Act. Her main contention is that review in the AAT would not be the most suitable forum to examine what she says is ostensibly a matter about denial of procedural fairness. She says she does not want a merits review. She claims that her application raises questions of law that are most suitable for determination by a court.

The scope and effect of s 10(2)(b)(ii) of the ADJR Act 21 In order for the discretion to dismiss the application for review of the delegate's decision to arise, the court must find, in the words of s 10(2)(b)(ii) of the ADJR Act, that 'adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision'. 'Adequate provision' in this context is to be read as adequate in the sense of suitable or sufficient provision for review: Edelsten v Minister for Health (1994) 58 FCR 419 at 424 (Northrop J). 22 The starting point is that an applicant may rely upon any or all of the remedies available, including review by this court and review or appeal elsewhere: Kelly v Coats (1981) 35 ALR 93 at 94 (Toohey J). It is not necessary for Ms Hutchinson to show special circumstances before the court will hear an application under the ADJR Act where there are alternative avenues of review: Cremona v Administrative Appeals Tribunal [2015] FCAFC 72; (2015) 230 FCR 1 at [52]. Rather, the onus is on the party seeking to persuade the court that it should not exercise the jurisdiction conferred upon it by the legislature: Kelly v Coats at 94. 23 If the court is satisfied that another law does make adequate provision for review, the court must consider and weigh all relevant circumstances in determining whether or not to exercise the discretion to dismiss the proceeding: Cremona v AAT at [52]. The discretion to decline relief under s 10(2)(b)(ii) is not to be fettered by judge made rules, albeit its exercise in particular classes of case may be informed by common approaches and considerations: Duncan v Fayle [2004] FCA 723 at [26]-[27] (French J), approved in Cremona v AAT at [47]. 24 In deciding whether to exercise the discretion on a summary basis, it is appropriate to proceed on the assumption that, discretionary considerations aside, the applicant would succeed in her claim, including the assumptions that her contentions will be made out and that all facts in support of the claim will be found in favour of the applicant: Edelsten at 421-422; CSL Australia Pty Limited v Minister for Infrastructure and Transport [2014] FCAFC 10; (2014) 221 FCR 165 at [219] (Allsop CJ, Mansfield J agreeing).

Do the SRC Act together with the AAT Act make 'adequate provision' for review? 25 As has been said, the decision presently under review was made by way of reconsideration under s 62 of the SRC Act. Section 64 of that Act entitled Ms Hutchinson to apply to the AAT for review of that decision. Under s 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) as modified by s 65(4) of the SRC Act, the application was to be made within 60 days. The only other modifications to the powers and procedures under the AAT Act which Part VI of the SRC Act makes concern application to external territories, advance notice of evidence and costs. 26 Therefore the AAT has its usual powers under s 43(1) of the AAT Act to exercise all the powers and discretions that were conferred on Comcare under the SRC Act and may affirm, vary or set aside Comcare's decision. It also has extensive procedural powers for the purpose of the review: s 40 AAT Act; and see McGowan v Migration Agents Registration Authority [2003] FCA 482; (2003) 129 FCR 118 at [54]. 27 The question that the AAT must determine is whether the decision under review was the correct or preferable one on the material before it: McGowan at [54], citing Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68. In short, the AAT has jurisdiction to review the merits of Comcare's decision. In the ordinary course it would receive evidence, including expert medical evidence, and submissions on behalf of both parties: Clement v Comcare [2007] FCA 2039 at [37] (Emmett J). If the AAT makes an error of law, Ms Hutchinson (or Comcare) will have an avenue of appeal on that question to this court: AAT Act s 44. 28 Barker J considered the question of whether the AAT Act makes adequate provision for review briefly in Hutchinson v Comcare [2018] FCA 505. His Honour did so in the course of dismissing Ms Hutchinson's application for an extension of time to apply for judicial review of Comcare's decision of 9 February 2016. At [73] his Honour said (emphasis added): Additionally, it was open to the applicant to seek merits review of the decision in the Tribunal, but she chose, for her own reasons, not to do so. The Parliament of Australia has set up merits review as a substantive means of ensuring the preferable administrative decision is made in relation to a wide range of Commonwealth government decisions. It behoves an applicant, such as the applicant here, to take advantage of such merits review processes, especially when the substance of the case they wish to put on a judicial review application, goes to the merits of the decision already made. It would have been appropriate for the applicant to seek merits review and then, if she considered there were questions of law that affected the making of that decision, to appeal under s 44 of the AAT Act. 29 Similarly, other judges of the court have dismissed applications under the ADJR Act for review of decisions of Comcare of the same kind as the decision presently under review, on the basis of the discretion in s 10(2)(b)(ii) of the ADJR Act: Clement v Comcare; Von Stieglitz v Comcare [2012] FCA 55. 30 It may fairly be said, then, that in general, s 64 of the SRC Act together with the AAT Act do make adequate provision for review of a decision under s 62 of the SRC Act. But the passage from Hutchinson v Comcare [2018] FCA 505 to which I have added emphasis above is significant in this particular case. It suggests that the nature of the case the applicant wishes to put will be relevant. If it is in substance a challenge to the merits, then the case for leaving it to review in the AAT will be strong. But in the present application, Ms Hutchinson says that she does not wish to pursue merits review. She alleges that Comcare has denied her procedural fairness, and submits that this proceeding is the best way to correct that if it is found to have occurred. 31 There is an issue as to whether the nature of the particular application bears on the threshold question of whether adequate provision is made, or it only becomes relevant as a discretionary factor if that threshold is cleared. I consider that the better view is that it is relevant at both stages of the inquiry. It is obvious that it can be relevant to the exercise of the discretion. As for whether the discretion is enlivened, it is notable that s 10(2)(b)(ii) speaks of the applicant's entitlement to seek review, and the particular decision that is under review. This suggests that the question is not an abstract one as to whether another law makes adequate provision for review of decisions of that kind, but a question about the particular application. 32 There is some support for that view in the case of CSL Australia which I have mentioned above. There, the Full Court held that the lack of any power in the AAT to make declarations on an application for review under the Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth) meant that the primary judge erred in her application of s 10(2)(b)(ii) of the ADJR Act. Allsop CJ (Mansfield J agreeing) seemed to approach the question as one of whether the relevant legislation made adequate provision for review, rather than how the discretion should be exercised: see [219], [227], [236]-[237]. The Chief Justice made it clear that the question was to be answered in the particular circumstances of the case and not by reference solely to the respective powers of the court and the AAT in the abstract: see [234]. His Honour said that s 10(2)(b)(ii) required the utility of proceeding in the AAT to be considered in the context of the case: see [231]. The concurring reasons of Rares J, to the effect that the applicant did not have a suitable and sufficient remedy of merits review in the AAT, were also based on the circumstances of the case, and were framed in terms of whether merits review in the AAT was 'suitable or sufficient': [331]-[333]. 33 In my view, considerations of the kind that Ms Hutchinson has raised are capable of founding a conclusion that, in the circumstances of a particular case, no act other than the ADJR Act makes adequate provision for review of the relevant decision. 34 Do those considerations lead to that conclusion here? According to Ms Hutchinson's submissions, the proceeding is principally concerned with a denial of procedural fairness which arose from the original decision of the first delegate on 9 February 2016 through to the decisions of the other delegates on 31 March 2020 and 11 June 2020, the latter being the decision under review. She confirmed in oral submissions that the 'errors of law' to which she refers are errors of denial of procedural fairness. 35 It must be said that issues about procedural fairness do not emerge clearly from the grounds of review I have set out above. But the court should make some allowance for the fact that she is self-represented, and the reason she says the case is about procedural fairness emerged more clearly from her oral submissions. The case she wishes to advance is that the delegate displayed pre-judgment and bias against her by 'cherry picking' evidence favourable to Comcare's position, ignoring unfavourable evidence, and placing excessive reliance on Comcare's previous decisions on the point. 36 That is a coherent claim. I say that not to damn it with faint praise, but to engage one of the principles I have described above, namely that the court must proceed on the assumption that, discretionary considerations aside, Ms Hutchinson will succeed in her claim, her contentions will be made out, and all facts in support of the claim will be found in her favour. 37 I also consider that it is not a colourable claim. It is the true substance of the claim which matters, not the applicant's characterisation of what it is about. In Kelly v Coats at 95, Toohey J observed (emphasis added), 'Assuming that the applicant's complaint is truly one of error of law, the present application is likely to be a more expeditious way of disposing of the matter than the procedures to be found in the Repatriation Act'. In CSL Australia at [333], Rares J based his conclusion on 'the real issues that CSL wished to have resolved'. So, if it appeared on full consideration of the claim that the procedural fairness aspect was merely cosmetic, or an afterthought, that could affect whether the discretion is enlivened. But, I see no basis to conclude (and Comcare did not allege) that the procedural fairness aspect of the claim has been simply added to the claim so that it will appear to be one appropriate for the court to determine. 38 Comcare submitted that Ms Hutchinson's main concern seemed to be that there was evidence that had not been taken into account. It is true that the contents of the first ground of the application leave it open to characterise Ms Hutchinson's claim as essentially one of merits review. But considering it in the context of her oral submissions and the history of her dealings with Comcare persuades me, on balance, that it should not be characterised that way. Ms Hutchinson feels aggrieved by what she says has been bias and prejudgment on Comcare's part over a long course of dealings and decisions. That feeling might turn out to have no objective foundation, but as I have explained I must proceed on the assumption that it does. Therefore, while there is some force in Comcare's concern about the futility of the matter being remitted to it for a fifth time, there may well be practical utility in findings of this court identifying occasions on which Comcare has acted in a way that displays bias or prejudgment. It must be understood, however, that I express these views tentatively for the purposes of an interlocutory application; unfettered by the assumption I have referred to, and after considering full evidence, I may well reach different conclusions at trial. 39 Given my preliminary views, I consider that in the particular circumstances of this case, s 64 of the SRC Act together with the AAT Act do not make adequate provision for review of the decision of the delegate of 11 June 2020. Comcare did not dispute the proposition that the powers and procedures of the AAT are not adapted to make determinations about whether the delegate denied procedural fairness. In a situation where that is the substance of the relief that an applicant seeks, and there is no basis to dismiss that as colourable, I consider that the court's discretion under s 10(2)(b)(ii) is not enlivened. 40 Comcare did say, however, that if the AAT were to make an independent and impartial determination on the merits, as it can be expected to do, that would 'cure' any concerns about denial of natural justice. But I do not think it follows that the AAT review for which provision is made in the legislation is 'adequate' in the circumstances of this application. If the purpose of an application is to vindicate concerns that an applicant has about the process that the original decision maker followed, and those concerns are not incoherent or colourable, and there may be practical utility in having them vindicated in that way, then it seems to me that a different procedure that is not well adapted to achieving that vindication cannot be said to be 'adequate'. 41 There was a suggestion in Comcare's submissions that if Ms Hutchinson's purpose in making the application for reconsideration to Comcare was to procure a vehicle for her to pursue a determination in this court that Comcare had denied her procedural fairness, that could be an abuse of the process. But the process said to be abused there was the process of reconsideration by Comcare. Comcare accepted that pursuing a determination of that kind in this court was not, without more, an abuse of the process of this court, and it did not submit that any other abuse infected Ms Hutchinson's application in this proceeding.

The exercise of any discretion 42 It is not strictly necessary for me to consider how the discretion should be exercised, since I have determined that it does not arise. But I should comment on it in case I am wrong about that. Comcare advanced a number of matters in support of exercising the discretion to refuse Ms Hutchinson's application: (1) The procedure in the AAT permits full merits review. This is true, but it has limited weight in this case, essentially for reasons I have already given. It may be, as Comcare has submitted, that Ms Hutchinson's ultimate goal is (or should be), to obtain compensation and rehabilitation for the work related injury she says she has suffered. But Ms Hutchinson has articulated coherent reasons for not wishing to seek merits review in the circumstances of this case. There will be cases where the court should, in effect, say to an applicant that it knows better than they do what goals they should be pursuing, and how they should be pursued. But I do not think this is one of those cases. (2) The court has limited ability to make findings of fact. This is also true. But it is in substance the same point as the preceding one, and the same answer can be made. (3) The court cannot substitute a more favourable decision and the matter will need to go back to Comcare. As I have said, there is force in Comcare's point that it has considered the merits of Ms Hutchinson's claim in respect of agoraphobia on several occasions already and the result of Ms Hutchinson succeeding in this proceeding will be to send it back to Comcare another time. But Ms Hutchinson has identified a plausible reason why an order of that kind, coupled with its reasons for decision, may have practical utility in her circumstances. On the assumption, once again, that she makes her contentions good, the court's orders may lead to a different outcome after reconsideration by Comcare. (4) Ms Hutchinson has been given the opportunity to discontinue the proceeding and seek merits review. This would remove a reason for the court to be reluctant to send Ms Hutchinson to merits review, if it thought that was otherwise appropriate. But in circumstances where the court accepts that she should be permitted to seek judicial review, it has little weight. (5) Review by the AAT of Comcare's decision has no costs implications for Ms Hutchinson but proceeding in court does. Ms Hutchinson proceeds in this court at the risk that her application will fail and Comcare will seek substantial legal costs against her. Whether she chooses to take that risk is a matter for her. (6) Exercising this court's discretion under s10(2)(b)(ii) of the ADJR Act has the distinct advantage of avoiding a significant waste of costs and court time in considering the voluminous and misconceived contentions advanced on behalf of the Applicant in support of relief under the ADJR Act. This submission repeats a passage from Clement v Comcare at [38]. But in that case the applicant had set out particulars of grounds of review in 27 paragraphs covering some 26 pages: see [13]. Ms Hutchinson's grounds of application here are not voluminous. And while it may turn out that they are wrong, they are not misconceived. 43 Other matters relevant to the exercise of the discretion are: (1) Ms Hutchinson's subjective wishes. As Toohey J said in Kelly v Coats, the starting point is that the applicant may rely on any of the remedies available to her. That is not to say that an applicant's subjective wishes are determinative; the court must exercise the discretion with due regard to systemic imperatives for the efficient administration of justice, including as reflected in s 37M of the Federal Court of Australia Act 1976 (Cth). But at least where the applicant's wishes have a rational basis, they should be given some weight. (2) Only part of the originating application will be struck out. Comcare's submissions focussed on the first ground of application I have set out above. The second ground, that Comcare made a 'bad faith offer' of alternative dispute resolution, is unlikely to be one which the AAT could deal with adequately. Comcare submitted that there were alternative dispute resolution procedures routinely used in the AAT but that does not address the question of whether it made a bad faith offer in the past. It appears that Comcare's real objection to ground 2 was that it did not concern a decision that was reviewable under the ADJR Act. But it accepted that this was not a basis for the present interlocutory application. So if I were to grant that application in respect of ground 1, it would not resolve the whole proceeding. That weighs against exercising the discretion in Comcare's favour. (3) Ms Hutchinson will now be out of time if she does seek review in the AAT. See [25] above. The fact that the outcome of dismissing the present proceeding will be to deny Ms Hutchinson the ability to seek review in the AAT as of right is a relevant factor militating against the exercise of the discretion: see Kimberly-Clark Ltd v Commissioner of Patents (1988) 83 ALR 714 at 719. But it does not do so strongly, especially in circumstances where Comcare's solicitors wrote to her informing her of the expiry of the time limit on 10 August 2020 and putting her on notice of the possibility that Comcare would oppose the grant of an extension of time. 44 If, contrary to my view, there is adequate provision for review in the AAT in the circumstances of this application, I would exercise the discretion against dismissing the proceeding. The most influential consideration here is that Ms Hutchinson has articulated coherent reasons for wishing to pursue a remedy which the court, and not the AAT, can provide. Since the court is effectively required to assume in this interlocutory application that her concerns are well founded, the choice of remedy she has made should be respected. The other matters I have outlined do not present strong countervailing reasons.

Conclusion 45 The interlocutory application will be dismissed. But it is important that the proceeding be resolved without further delay. I will bring the parties in for a directions hearing so that it can be programmed to a final hearing as soon as practicable. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.