Dunstan v Comcare

[2007] FCA 504

FEDERAL COURT OF AUSTRALIA

Dunstan v Comcare [2007] FCA 504

COLIN GEORGE DUNSTAN v COMCARE AND COMMONWEALTH OF AUSTRALIA
ACD 20 OF 2006

GYLES J
10 APRIL 2007
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 20 OF 2006

BETWEEN:

COLIN GEORGE DUNSTAN
Applicant

AND:

COMCARE
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

JUDGE:	GYLES J
DATE OF ORDER:	10 APRIL 2007
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.The applicant, Colin Dunstan, is to pay the costs of the Commonwealth of Australia of the proceeding, including the notice of motion filed 22 September 2006.

2.All applications by the applicant to amend are dismissed.

3.The proceeding is dismissed.

4.The applicant is to pay the costs of Comcare of the proceeding including the costs of all notices of motion to which it was a party.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 20 OF 2006

BETWEEN:

COLIN GEORGE DUNSTAN
Applicant

AND:

COMCARE
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

JUDGE:	GYLES J
DATE:	10 APRIL 2007
PLACE:	CANBERRA

REASONS FOR JUDGMENT

1. By letter of 3 January 1995 the applicant, Colin Dunstan, made a complaint to the Human Rights and Equal Opportunity Commission (the Commission) against Comcare under the Disability Discrimination Act 1992 (Cth).

2. On 10 July 2006 the President of the Commission issued a notice of termination of that complaint pursuant to s 14 of the Human Rights Legislation Amendment Act (No 1) 1999. The notice, omitting formal parts, was as follows:

   ‘The complaint attached hereto as Attachment A made by Mr Colin Dunstan on 3 January 1995 is terminated pursuant to section 10 of the Act on the ground that before 13 April 2000:

   ·the Commissioner had decided not to inquire or not to continue to inquire into the complaint; and

   ·the complainant required the Commissioner to refer the complaint, or the Commissioner’s decision to the President; and

   ·the President had not made a decision in relation to the complaint.

   A copy of the Commissioner’s letter which outlines the reasons for not commencing or not continuing the inquiry is provided at Attachment B.’

3. Attachment B was a letter dated 15 June 1995 from the Disability Discrimination Commissioner to Mr Dunstan in the following terms:

   ‘I refer to your complaint under the Disability Discrimination Act 1992 (the Act) against COMCARE Australia.  I understand in September 1994 you submitted a claim to COMCARE.  Your claim has been assessed but COMCARE has disallowed it as they are not satisfied that your employment has contributed to your condition.

   You have advised in your letter of 20 April 1995 that you are pursuing the matter through COMCARE.  As Part VI of the Safety Rehabilitation and Compensation Act 1988 provides a review procedure for decisions about compensation that includes access to review by the Administrative Appeals Tribunal, I think your concerns are more appropriately…