Dunkerley v Administrative Appeals Tribunal

FEDERAL COURT OF AUSTRALIA

Dunkerley v Administrative Appeals Tribunal [2012] FCA 41

Citation:		Dunkerley v Administrative Appeals Tribunal [2012] FCA 41
Parties:		ULLA-MAIJA DUNKERLEY v ADMINISTRATIVE APPEALS TRIBUNAL and COMCARE
File number:		ACD 44 of 2010
Judge:		PERRAM J
Date of judgment:		3 February 2012
Catchwords:		ADMINISTRATIVE LAW – Appeal – appeal from Administrative Appeals Tribunal – whether Tribunal failed to consider relevant considerations – whether Tribunal misconstrued departmental policy statement
Legislation:		Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A Public Service Act 1999 (Cth)
Cases cited:		Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 cited Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 cited Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 cited
Date of hearing:	27 June 2011
Place:	Canberra
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	39
Counsel for the Applicant:	The applicant appeared in person
Counsel for the Second Respondent:	Mr B Dubé
Solicitor for the Second Respondent:	Dibbs Barker

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 44 of 2010

BETWEEN:

ULLA-MAIJA DUNKERLEY
Applicant

AND:

ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

COMCARE
Second Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	3 FEBRUARY 2012
WHERE MADE:	SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.The application be dismissed. 

2.There be no order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 44 of 2010

BETWEEN:

ULLA-MAIJA DUNKERLEY
Applicant

AND:

ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

COMCARE
Second Respondent

JUDGE:	PERRAM J
DATE:	3 FEBRUARY 2012
PLACE:	SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

I.    Introduction

1. This is an unfortunate case. There is no doubt that on 24 October 2007 Ms Dunkerley suffered an adjustment disorder with anxious mood which was contributed to by her employment with the Department of Education, Science and Training (‘the Department’). Nor is it in dispute that the second respondent, Comcare, has accepted liability to compensate Ms Dunkerley for this. The events giving rise to this case post-date these earlier occurrences but this history forms the inseverable backdrop to what then occurred. At its most basic Ms Dunkerley’s complaint is that she was invited to apply for a position within the Department for which she was then shortlisted and interviewed in circumstances where, according to her, she should never have been interviewed in the first place. She received feedback from the interview process and it seems possible that during it she was told that she had only been interviewed for charitable reasons (or that the word ‘charity’ or ‘charitable’ had been used). Ms Dunkerley contends that she thereupon suffered a further aggravation of her earlier condition. And, indeed, this is not in dispute. Instead, the present debate turns upon the operation of s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’). Section 5A defines the…