FEDERAL COURT OF AUSTRALIA
Comcare v Dunkerley [2021] FCA 495
ORDERS
ACD 74 of 2019 BETWEEN: COMCARE
Applicant
AND: ULLA-MAIJA KATRIINA DUNKERLEY
Respondent
ORDER MADE BY:
ABRAHAM J
DATE OF ORDER:
13 MAY 2021
THE COURT ORDERS THAT:
1.The estate of Ulla-Maija Katriina Dunkerley be sequestrated under the Bankruptcy Act 1966 (Cth).
2.The applicant creditor’s costs (including reserved costs) be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act1966 (Cth).
THE COURT NOTES THAT:
1.The date of the act of bankruptcy is 27 June 2019.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal…
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- AGLC
- Comcare v Dunkerley [2021] FCA 495
- Case
- [2021] FCA 495
- Decision Date
CaseChat Overview and Summary
The court found that the applicant had not established a proper basis to go behind the judgments. The court examined the history of the proceedings, including the various decisions made by the Administrative Appeals Tribunal (AAT) and the Federal Court, which affirmed Comcare's decision not to pay compensation to the respondent for her injury. The court held that the respondent had not shown any reason to question the existence of the debt, and therefore, the court accepted the judgment as satisfactory proof of the petitioning creditor's debt.
In conclusion, the court made a sequestration order under the Bankruptcy Act 1966 (Cth) and ordered that the applicant creditor's costs be taxed and paid from the estate of the respondent debtor in accordance with the Act. The court found that there was a debt owing to the petitioning creditor and that the existence of the judgment was satisfactory proof of that debt. The court did not exercise its discretion to go behind the judgment, as the applicant had not shown any reason to do so.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The estate of Ulla-Maija Katriina Dunkerley be sequestrated under the Bankruptcy Act 1966 (Cth).
2. The applicant creditor’s costs (including reserved costs) be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
As Banks-Smith J observed in Waterton v Lafferty [2019] FCA 1267 at [76]-[77], that the observations of Colvin J in Kitay preserves the potential in the face of an allegation of fraud, collusion or miscarriage of justice for a court to go behind a costs liability where there is not an antecedent debt, but where there is a link between the underlying determination of issues and costs by way of the exercise of discretion to order that costs follow the event after trial. Logically, that must be so. Consideration The applicant has not established there is a proper basis to go behind the judgments of Perram J, Flick J and Rares J. To explain why that is so it is necessary to consider the history of these proceedings in more detail. The background to these proceedings is accurately summarised by Griffiths J in his Honour’s reasons dismissing the respondent’s application to set aside the Bankruptcy Notice: Dunkerley v Comcare [2019] FCA 1002. It is convenient to recite that summary, relevantly from [7]-[15]: [7] Ms Dunkerley is a teacher. On 24 October 2007, she suffered an injury described as an “adjustment disorder with anxious mood” which she claimed was contributed to, in significant measure, by her employment at the former Commonwealth Department of Education, Science and Training (DEST). Although initially attempts were made to return her to work in another area of DEST, these attempts were unsuccessful and she was transferred to the Department of Industry, Innovation, Science, Research and Tertiary Education (DIISR) in May 2008. [8] Comcare initially declined liability for the October 2007 injury. On 16 June 2009, the AAT made a consent decision in which Comcare accepted liability for Ms Dunkerley’s injury suffered on 24 October 2007. [9] In March 2009, Dr George (a psychiatrist), concluded that Ms Dunkerley no longer presented with any psychiatric diagnosis and that she had full capacity to return to work. [10] On 1 September 2009, Ms Dunkerley made a claim for compensation from Comcare for aggravation of her condition arising from her interactions with a more senior colleague at DIISR in July 2009 in the context of her participation in a promotion round. This claim for aggravation was rejected by Comcare on 8 December 2009 and its decision was upheld on an internal review by Comcare on 11 February 2010. Ms Dunkerley sought a review of Comcare’s decision in the AAT. [11] Comcare’s decision was affirmed by the AAT in its decision dated 17 November 2010, which is reported as Re Dunkerley and Comcare [2010] AATA 915 (First AAT Decision). The AAT found that Ms Dunkerley’s aggravation had been suffered as a result of the feedback that she received from her more senior colleague (who was the Chair of the Selection Advisory Committee) on 17 July 2009. The feedback related to her unsuccessful attempt to obtain a promotion and the AAT found that it constituted reasonable administrative action taken in a reasonable manner in respect of her employment and that, accordingly, there was no “injury” for the purposes of s 5A of the SRC Act. [12] Ms Dunkerley appealed the First AAT Decision to this Court. The appeal was dismissed by Perram J on 3 February 2012. His Honour’s reasons for judgment are reported as Dunkerley v Administrative Appeals Tribunal [2012] FCA 41. Comcare did not seek costs against Ms Dunkerley and none was ordered.[13] Ms Dunkerley appealed to the Full Court from Perram J’s decision. On 13 September 2012, the appeal was dismissed by Lander, Logan and Barker JJ. Their Honours’ reasons for judgment are reported as Dunkerley v Comcare [2012] FCAFC 132; 131 ALD 1. An order for costs was made in favour of Comcare. Comcare did not pursue those costs and they do not form part of the basis of the bankruptcy notice which is the subject of the present proceeding. [14] Before describing the background to the three costs orders which form the basis of the bankruptcy notice, it is apt to say something about other proceedings in the AAT involving Ms Dunkerley and Comcare which preceded the making of those three costs orders. [15] In early May 2013, Ms Dunkerley reagitated her claim for compensation arising from her October 2007 injury. On 20 May 2013, Comcare denied liability to pay Ms Dunkerley compensation under ss 16 and 19 of the SRC Act from 2 March 2009 to the date of that determination in relation to Ms Dunkerley’s “adjustment disorder with anxious mood” suffered on 24 October 2007. The basis for the denial was Comcare’s determination that Ms Dunkerley had recovered from the injury suffered on 24 October 2007 by no later than 2 March 2009. Comcare’s determination that Ms Dunkerley had recovered from her injury was based on a medical report by a medical practitioner named Dr George. This decision was affirmed on internal review and Ms Dunkerley then sought review of that internal review decision in the AAT. On 18 June 2014, the AAT affirmed Comcare’s decision (the Second AAT Decision). It found that, as at 2 March 2009, Ms Dunkerley did not suffer from a “Axis 1 psychiatric disorder”, and did not at that time suffer incapacity for work nor require further medical treatment for the injury suffered on 24 October 2007. The Second AAT Decision is reported as Re Dunkerley and Comcare [2014] AATA 381.