DSLB v Comcare

Case [2023] FCA 1222

FEDERAL COURT OF AUSTRALIA

DSLB v Comcare [2023] FCA 1222

Review of: DSLB and Comcare (Compensation) [2022] AATA 1369 and various decisions of Comcare and the Administrative Appeals Tribunal
File number: NSD 546 of 2022
Judgment of: KATZMANN J
Date of judgment: 16 October 2023
Catchwords:

WORKERS COMPENSATION – where determination by Comcare to disallow claim for workers compensation set aside on reconsideration and claim accepted, whether open to Comcare on own motion to reconsider primary determination or substitute different decision for decision made on reconsideration

ADMINISTRATIVE LAW – where Comcare purported to reconsider liability to pay workers’ compensation after primary determination to decline liability had been set aside on reconsideration – where Comcare provided applicant with two weeks to be heard before liability revoked but not the material upon which the own motion reconsideration decision was based, whether applicant denied natural justice – whether relief should be refused in any event because of availability of merits review in Administrative Appeals Tribunal

HIGH COURT AND FEDERAL COURT – suppression and non-publication orders – where applicant assigned pseudonym by Administrative Appeals Tribunal and applied to Court for order under s 37AF of the Federal Court of Australia Act 1976 (Cth) prohibiting or restricting publication or other disclosure of information tending to reveal her identity – where evidence revealed applicant suffers from psychiatric disorders and disclosure of her identity would more likely than not precipitate an acute exacerbation of her symptoms and lead to increased risk of self-harm, whether order necessary to protect her safety

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 3(3), 35, 42A, 43(1)

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 8, 10(1), s 10(2)(b)(ii), 11, 16(1)

Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG

Judiciary Act 1903 (Cth) ss 39B, 77RF(1)(c)

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 7(7), 14, 38(4), 54, 59, s 60(1), 62, 64, 68, 69

Federal Court Rules 2011 (Cth) r 4.12
Cases cited:

AB (a pseudonym) v CD (a pseudonym) (2019) 364 ALR 202; 93 ALJR 321

Bechara v Bates (2021) 286 FCR 166

Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383

Courtney v Peters (1990) 27 FCR 404

Hagedorn v Department of Social Security (1996) 44 ALD 274

Hogan v Australian Crime Commission (2010) 240 CLR 651

Kioa v West (1985) 159 CLR 550

Lees v Comcare [1999] FCA 753; 29 AAR 350; 56 ALD 84

Marine Hull & Liability Insurance Co Ltd v Hurford (1986) 10 FCR 476

McGowan v Migration Agents Registration Authority (2003) 129 FCR 118

Ogawa v President of the Australian Human Rights Commission (2022) 294 FCR 221

R v Musleh (No 2) [2018] NSWSC 1221

Re Coyne and Comcare (1995) 37 ALD 553

Re Rebeiro and Comcare (1996) 44 ALD 632

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82

Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252

Saitta Pty Ltd v Commonwealth (2000) 106 FCR…

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Details
AGLC
DSLB v Comcare [2023] FCA 1222
Case
[2023] FCA 1222
Decision Date

CaseChat Overview and Summary

DSLB v Comcare was a case in which the applicant sought compensation for an affective disorder, including PTSD and depressive disorder, from Comcare. Comcare initially declined the claim, but upon reconsideration accepted liability for the injury. Comcare then undertook a reconsideration of its own motion and revoked liability, finding that the applicant had made wilful and false representations about her condition. The applicant challenged Comcare's reconsideration in the Federal Court, arguing that Comcare was not empowered to reconsider its own decision to accept liability, and that she was denied natural justice because Comcare did not provide her with the material upon which its reconsideration decision was based. The applicant also sought an order under s 37AF of the Federal Court of Australia Act 1976 (Cth) prohibiting or restricting publication or other disclosure of information tending to reveal her identity. The Court found that Comcare did not have the power to reconsider its own decision to accept liability, and that the applicant was denied natural justice because she was not provided with the material upon which the reconsideration decision was based. The Court also found that the applicant's psychiatric disorders and the risk of self-harm if her identity was disclosed justified the suppression order. The Court set aside Comcare's reconsideration decision and made orders prohibiting the publication or other disclosure of information tending to reveal the applicant's identity for a period of seven years.

In summary, the Court held that Comcare did not have the power to reconsider its own decision to accept liability for the applicant's injury, and that the applicant was denied natural justice because Comcare did not provide her with the material upon which its reconsideration decision was based. The Court also held that the applicant's psychiatric disorders and the risk of self-harm if her identity was disclosed justified the suppression order. The Court set aside Comcare's reconsideration decision and made orders prohibiting the publication or other disclosure of information tending to reveal the applicant's identity for a period of seven years.

Orders

Orders of the court

1. Pursuant to s 37AF(1)(a) of the Federal Court of Australia Act 1976 (Cth), on the ground that it is necessary to protect her safety, any information tending to reveal the identity of the applicant not be published or otherwise disclosed for a period of seven years.

2. The following decisions of the respondent be set aside:

(a) the decision made by Jenny Le on 2 August 2016; and

(b) the decision made by Lara Fleming on 11 December 2020.

3. The following decisions of the Administrative Appeals Tribunal be set aside:

(a) the decisions made by Senior Member McGrowdie on 5 and 6 October 2021;

(b) the decision made by Senior Member Poljak on 1 March 2022; and

(c) the decision made by Deputy President Pascoe on 27 May 2022.

4. The respondent pay the applicant’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The powers of the Tribunal on review are set out in s 43(1) of the AAT Act:(1)For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:(a) affirming the decision under review;(b) varying the decision under review; or(c) setting aside the decision under review and:(i)making a decision in substitution for the decision so set aside; or(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. The factsThe claim On 11 November 2013, the applicant made a claim to Comcare for compensation for “Affective disorder: PTSD Anxiety and Depressive Disorder”.The primary determination On 16 January 2014 Gavin Davidson, as delegate for Comcare, made the primary determination. He found that the applicant suffered from an “ailment” as defined in the SRC Act, namely “post[-]traumatic stress disorder (PTSD)” and that her employment contributed to her condition to a significant degree. Based on the medical evidence, he decided that the deemed date of injury under s 7(4) of the SRC Act was 16 August 2013. But Mr Davidson disallowed the claim because he considered that “[the applicant’s] condition had been contributed to, in part, by the cessation of [her] higher duties necessitating [her] return to [her] substantive position”. That action, he decided, was “reasonable administrative action” within the meaning of s 5A(2)(f), as it constituted a failure to retain a benefit in connection with her employment. Accordingly, he found that Comcare was not liable to pay compensation. On 31 March 2014 the applicant applied by email for a reconsideration of the primary determination.The Mohr decision On review, Ms Mohr agreed that a failure to obtain or retain higher duties falls within the exclusions in s 5A, but she was not satisfied on the evidence that this was a factor which resulted in the applicant’s condition. Instead, she was satisfied on the medical evidence that the applicant’s condition was due to her increasing workload, performing two roles, and a difficult relationship with one of her supervisors. Further, Ms Mohr considered that the correct diagnosis was an affective disorder, rather than PTSD. Consequently, she found that the primary determination could “no longer be sustained” and proceeded to revoke the determination and accept liability. On 13 June 2016 the applicant wrote to Comcare advising that she was travelling overseas with her husband, that she had left the country five days earlier, and that her absence had been arranged in consultation with her treating specialist.The Le decision On 13 July 2016 Ms Le wrote to the applicant, giving notice of her intention “to undertake a reconsideration of own motion in relation to the decision which accepted liability for [her] claim” (that is to say, the Mohr decision). Ms Le explained in an attachment to the letter that, after the Mohr decision was made, “evidence” had come to Comcare’s attention which prompted a reconsideration of whether the applicant’s claim was precluded by the operation of s 7(7) of the SRC Act. She went on to refer to that evidence and to her interpretation of it. She advised the applicant that in her view the evidence indicated that on at least four occasions the applicant made “a wilful and false representation” that she did not previously suffer from the disease for which she sought compensation from Comcare. She said that the representations were made:(1)in the applicant’s claim form dated 11 November 2013;(2)to Dr Brian Richardson, a general practitioner, as reported by him on 3 December 2013;(3)to Dr Bernadette Keegan, a clinical psychologist, as reported by her on 5 December 2013; and (4)to Dr Michael Hong, a psychiatrist, as reported by him on 4 December 2014, 30 October 2015 and 10 June 2016.

Evidence

Evidence Before The Court

However, during the hearing of her substantive application before the Full Court the applicant was referred to by name as she requested. Her identity was readily ascertainable, even to those who were not in the courtroom, because she was identified by name in previous judgments on which both she and the primary judge relied. Despite the redaction of her name from the citations of those previous judgments, any person could have discovered her identity by navigating to those publications. The Full Court observed that in these circumstances, the use of the pseudonym was both “wholly ineffective in anonymising [her] identity” and “could not conceivably have been necessary in the interests of justice or her safety to protect her identity from disclosure, since it was never protected from disclosure…” (at [39]). The applicant accepted that the use of a pseudonym was futile (at [44]). Moreover, the Full Court said that there was no evidence to suggest that the applicant’s mental illness “creates any occasion in respect of her safety, let alone necessity or otherwise in the interests of justice, for suppressing publication of or anonymising her name in connection with the proceeding” (at [42]). The Full Court proceeded to make orders substituting the applicant’s real name for the pseudonym.The evidence in support of the application In her affidavit of 18 July 2023, the applicant said that after the hearing she had consulted Dr Augustus Pusic, a psychiatrist. A report from Dr Pusic, dated 13 July 2023, was annexed to her affidavit together with an earlier report from Dr Pusic and reports from two other psychiatrists. Dr Pusic first assessed the applicant in February 2007, and treated her intensively (after her injury in the employ of ASIC) between April 2014 and January 2018. He interviewed the applicant by telephone on 10 July 2013, presumably because she was still overseas at the time. He noted that the applicant had been the victim of sexual assault at boarding school “in her developing years”, which she did not report at the time, and at the age of 19 was subjected to further inappropriate sexual advances at her workplace. He wrote that she has experienced “frequent suicidal ideation with strong urges to self-harm”. Dr Pusic said that the applicant “continues to suffer from incapacitating symptoms of post[‑]traumatic stress disorder related to sexual assault and sexual harassment” and “continues to display emotional lability, distressing anxiety, pervasive dysphoria as well as acute sensitivity to intrusive recollections of past incidents of sexual abuse and harassment”. He considered that publication of her identity “would more likely than not, precipitate acute exacerbation of already severe and pervasive post-traumatic stress disorder symptoms and also lead to increased risk of self-harm impeding her hopeful eventual recovery”. Accordingly, he expressed the view that an order suppressing her identity was not only reasonable but necessary.

Decision

Reasons for decision

On 13 June 2016 the applicant wrote to Comcare advising that she was travelling overseas with her husband, that she had left the country five days earlier, and that her absence had been arranged in consultation with her treating specialist.The Le decision On 13 July 2016 Ms Le wrote to the applicant, giving notice of her intention “to undertake a reconsideration of own motion in relation to the decision which accepted liability for [her] claim” (that is to say, the Mohr decision). Ms Le explained in an attachment to the letter that, after the Mohr decision was made, “evidence” had come to Comcare’s attention which prompted a reconsideration of whether the applicant’s claim was precluded by the operation of s 7(7) of the SRC Act. She went on to refer to that evidence and to her interpretation of it. She advised the applicant that in her view the evidence indicated that on at least four occasions the applicant made “a wilful and false representation” that she did not previously suffer from the disease for which she sought compensation from Comcare. She said that the representations were made:(1)in the applicant’s claim form dated 11 November 2013;(2)to Dr Brian Richardson, a general practitioner, as reported by him on 3 December 2013;(3)to Dr Bernadette Keegan, a clinical psychologist, as reported by her on 5 December 2013; and (4)to Dr Michael Hong, a psychiatrist, as reported by him on 4 December 2014, 30 October 2015 and 10 June 2016. Contrary to the statement made in the covering letter, however, in the attachment Ms Le advised that she intended to undertake a reconsideration of own motion of the determination of 16 January 2014 (the primary determination which disallowed the claim, not the reconsideration decision in which liability was accepted) and that she proposed to revoke the acceptance of her claim (by Ms Mohr). Ms Le went on to say:If you would like to provide any additional evidence before I complete the reconsideration of own motion, please ensure it is received by 27 July 2016. If the requested information is not provided by 27 July 2016, I will proceed to make a determination based on the evidence on your claim. The applicant did not respond to the 13 July 2016 letter or provide further evidence in accordance with the invitation it contained and Ms Le proceeded to make the determination she had foreshadowed, notifying the applicant by letter dated 2 August 2016. Apart from the reports mentioned in the 13 July 2016 letter, the Le decision referred to reports from the applicant’s treating psychiatrist, Dr Augustus Pusic, and to clinical notes and other documents from Dr Sheehan, another general practitioner, which included information said to be at odds with representations the applicant had made to other medical practitioners and to Comcare. The reasons for the decision included the following statements:The case of Rebeiro and Comcare [1996] AATA 364 held that the definition of ‘determination’ in section 60 of the SRC Act only extends to ‘primary determinations’ and that the power to reconsider a determination conferred by section 62(1) of the SRC Act only extends to primary determinations.If I follow that decision, I must conclude that I am unable to reconsider the reviewable decision which accepted liability for your claimed injury. Instead, this decision is a reconsideration of the determination of 16 [January] 2014, which denied liability for your injury.…By conducting a reconsideration of own motion and revoking liability, I must inform you that such a decision on your claim has raised an overpayment in which [sic] this matter will be addressed separately.(Emphasis added.)

Ratio Decidendi

Legal Principle Established

The power to reconsider a determination is contained in s 62, which relevantly provides:Reconsideration of determinations(1) A determining authority may, on its own motion:(a)reconsider a determination made by it; or(b)cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.(2)A request to a determining authority to reconsider a determination made by it may be made by:(a)the claimant; or(b)if the determination affects the Commonwealth—the Commonwealth; or(c)if the determination affects a Commonwealth authority—that Commonwealth authority.…(3) A request for reconsideration of a determination shall:(a)set out the reasons for the request; and(b)be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.…(5)Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.… “Claimant”, “determination”, “determining authority” and “reviewable decision” are defined terms. The definitions appear in s 60(1), which relevantly provides:In this Part:claimant means a person in respect of whom a determination is made.decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.determination means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.determining authority, in relation to a determination, means the person who made the determination.reviewable decision means a decision made under subsection 38(4) or section 62. Section 38(4) is irrelevant for present purposes. It deals with reviews by Comcare of decisions with respect to rehabilitation programs made by rehabilitation authorities other than a “relevant authority”. “Decision” is defined in s 3(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) in the following way:Unless the contrary intention appears, a reference in this Act to a decision includes a reference to:(a)making, suspending, revoking or refusing to make an order or determination;(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;(d)imposing a condition or restriction;(e)making a declaration, demand or requirement;(f)retaining, or refusing to deliver up, an article; or(g)doing or refusing to do any other act or thing.