Goodricke v Comcare

[2015] FCCA 506

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOODRICKE v COMCARE [2015] FCCA 506

Catchwords:
ADMINISTRATIVE LAW – Application for order to review a proposed decision – where alleged no evidence upon which to make decision – evidence upon which to make decision – application dismissed.

Legislation:

Administrative Decisions (Judicial Review) Act 1977, ss.3, 5(1), 5(1)(h), 5(3), 5(3)(a), 5(3)(b), 6(1), 44

Commonwealth of Australia Constitution Act, s.51(xxxi)
Judiciary Act 1903, s.78B
Safety Rehabilitation and Compensation Act 1988, ss.8, 14(1), 16, 19, 19(2), 19(3), 24, 25, 26

Commonwealth v Mewett (1997) 191 CLR 471
Georgiadis v Australian & Overseas Telecommunications Corporation (1994) 179 CLR 297
Bienke v Minister for Primary Industries and Energy (1994) 63 FCR 567
Sunchen Pty Ltd v Federal Commissioner of Taxation (2010) 75 ATR 13

Applicant: PETER GOODRICKE

Respondent: COMCARE

File Number: BRG 639 of 2013

Judgment of: Judge Jarrett

Hearing date: 7 November 2013

Date of Last Submission: 7 November 2013

Delivered at: Brisbane

Delivered on: 5 March 2015

REPRESENTATION

The Applicant appearing on his own behalf

Counsel for the Respondent: Mr Dylan

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application filed on 3 July 2013 be dismissed.

2. The respondent file and serve written submissions as to the quantum of costs or the basis of assessment by 4:00pm 20 March 2015.

3. The applicant file and serve submissions in reply by 4:00pm 10 April 2015.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 639 of 2013

PETER GOODRICKE

Applicant

And

COMCARE

Respondent

REASONS FOR JUDGMENT

1. By his originating application for judicial review filed in the Federal Court of Australia on 3 July, 2013 Mr Goodricke seeks an order pursuant to the Administrative Decisions (Judicial Review) Act 1977 that certain action proposed to be undertaken by the respondent “be expunged”.

2. Although his application was commenced in the Federal Court of Australia, by an order made in that Court on 25 July, 2013 the application was transferred to this Court for further consideration and hearing. 

3. By the application, Mr Goodricke seeks to challenge 2 actions on the part of the respondent, namely:

   a)a decision that a delegate of the respondent proposes to make to cease the payment of compensation that he presently receives from the respondent pursuant to the Safety Rehabilitation and Compensation Act 1988; and

   b)a decision made by the respondent’s delegate on 8 November, 2000 that determined the amount at which Mr Goodricke’s normal weekly earnings should set for the purposes of calculating payments to him pursuant to the SRC Act.

4. As to the first matter of the proposal to cease payments to Mr Goodricke, the core issue as revealed by the parties’ submissions is whether there is evidence upon which the respondent could support its foreshadowed decision.  Mr Goodricke contends that there is not and so, he seeks an order that “The action to deny liability be expunged”.

5. As to the decision about the amount at which his normal weekly earnings is set, the issue appears to be whether, leaving aside all else, it is appropriate as a matter of discretion to grant relief in respect of that decision, notwithstanding that none is claimed.

6. Mr Goodricke has also given Notice of a Constitutional matter under s.78B of the Judiciary Act 1903 arising from the withholding of payments to him whilst the determination and reconsideration of his entitlements has been underway.  However, just how that relates to the other matters raised in the application is not entirely clear.  No relief is sought in respect of that matter.

Amendment

1. As a preliminary matter, I need to deal with an application by Mr Goodricke to amend his originating application.  The effect of the amendment is to add the second and third matters to which I have just referred.  As originally filed, his application dealt only with the first. The respondent opposes the amendment, but I have determined to allow it.

2. More specifically, by his application in a case filed on 4 September, 2014 Mr Goodricke seeks leave to amend his originating application in the following way:

   Orders sought

   1.  The original application be amended

   Comcare propose to deny liability for an accepted claim where there is no factual evidence or other material to justify the making of the proposed decision The person proposes to make the decision on the basis of the existence of a particular fact that is an irrelevant consideration being Dr Veccihos inability to find a causal link between the applicant chronic pain expressed as an opinion and the aggravation suffered as a result of the applicants employment with the commonwealth. The same medical opinions obtained through medico legal reports from Dr Kostus and Dr McGill inability have already been rejected on the basis of the other medical opinions that have mostly not been obtained as medico legal reports being and the whole of the medical evidence being relevant consideration, The fact is the applicant still suffers from chronic pain that accepted condition.

   2. The original application be amended with the addition of

   In reaching the decision maker has not established a particular matter as there is no evidence or other material (including facts of which she is entitled to take notice) from which she can reasonably be satisfied that the matter is established; or the decision maker has made the decision on the basis of the existence of a particular fact, and that fact does not exist.  Not taking a relevant consideration into account in the exercise of a power; that the contract had “no provision for overtime” being an irrelevant consideration with no evidential basis.  Where it is clear from Jeff Powers letter to the recipient in April 2000 that the applicant was paid overtime.  In saying it is the applicants accepted working hours were 36.75 hours per week has no supporting evidence or facts and is an irrelevant consideration where as a relevant consideration the decision maker should have considered was applicants hours worked where significantly higher than 36.75 postulated.”

3. The parties were content for the application to amend to be dealt with as part of the hearing of Mr Goodricke’s principal application. The written submissions delivered by the parties in preparation for the hearing addressed the matters that Mr Goodricke wished to add by way of the amendment. The respondent is not taken by surprise and has made submissions about those matters. No prejudice to the respondent was said to arise from the amendments. The only substantive argument put against them was that in respect of the first matter I have identified above, the proposed amendments added nothing and the amendment was therefore unnecessary. I tend to agree. The matter sought to be added by way of amendment is largely argument, although might expand the grounds relied upon by Mr Goodricke to encompass s.5(3)b) of the ADJR Act. On that account I have determined to permit the amendment.

4. As to the second, the respondent argued that the claim sought to be added by the amendment was without merit and so leave to amend was not warranted.

5. Given that the matters to be raised by way of amendment have been adequately foreshadowed to the respondent, have been the subject of argument and there is no prejudice to the respondent by the amendments, I will permit both amendments as Mr Goodricke seeks.

Some background

1. Mr Goodricke worked for a government related entity from October, 1999.  In March, 2000 he claimed compensation in respect of a repetition strain injury in both of his forearms.  There is a long history of dispute between Mr Goodricke and the respondent about his claim and the amounts to which he might be entitled. 

2. There is no dispute that the respondent accepted that Mr Goodricke was entitled to compensation under the SRC Act in respect of a condition described by both parties as “aggravated regional pain syndrome (bilateral) with a date of injury of 14 February 2000.”  What is in dispute on the material before me is whether the aggravation of his bilateral regional pain syndrome has ceased.  If it has, the respondent contends that Mr Goodricke’s entitlement to compensation for incapacity to work (pursuant to s.19 of the SRC Act) and for the costs of medical treatment (pursuant to s.16 of the SRC Act) must also cease.

3. On 8 November, 2000 a delegate of the respondent determined that Mr Goodricke’s normal weekly earnings amount for the purposes of his claim was $1,150.16.  That determination thereafter informed the amounts that Mr Goodricke received from time to time by way of compensation for his weekly earnings.  Reasons for that decision were given at the time the decision was notified to Mr Goodricke, together with information about how he might challenge that determination by an application to the Administrative Appeals Tribunal.  It is this decision that is the subject of the second matter I identified at the outset of these reasons.

4. The present application was the result of a letter dated 3 June, 2013 sent to Mr Goodricke by a delegate of the respondent.  Relevantly, it provides:

   I would like to update you about your claim for compensation.  I have conducted a review of your claim file, and advise that the medical evidence suggests your current condition does not relate to your Commonwealth employment.

   You recently participated in two medical reviews with Dr Nicholas Jetnikoff, consultant Psychiatrist, Dr Phillip Vecchio, a consultant Rheumatologist.  These specialists have provided comprehensive reports to Comcare regarding your condition, however neither is able to relate your current symptoms to the injury sustained with the Commonwealth, during the years 1999 to 2000.

   I have also reviewed the information on your claim file, and provide a Statement of Reasons overleaf.

   Therefore, compensation may not be payable in accordance with the Safety Rehabilitation and Compensation Act 1988 (SRC Act) for the following entitlements:

   ·Medical expenses under section 16 of the SRC act; and

   ·Incapacity under section 19 of the SRC act

   Please note that before I issue a determination, you have the opportunity to present further medical evidence supporting your claims(s) for compensation.

   Please provide this information by Friday 5 July 2013

   If no response is received by the Friday 5 July 2013, I will make a determination based on the medical evidence available at the time.

   (errors in the original)

5. Mr Goodricke apprehends that the respondent is about to embark upon a decision which will see some or all of the compensation that he presently receives pursuant to the SRC Act cease.  This application is made pre-emptively in an effort to ensure that the respondent’s decision is not adverse to Mr Goodricke.

6. The respondent has not yet made any decision as proposed in its letter of 3 June, 2013.

The proposed decision to cease compensation

1. To engage the Court’s jurisdiction under the ADJR Act that is sought to be invoked in this proceeding, there must be a decision to which the ADJR Act applies. However, whilst the respondent has not yet made the decision foreshadowed in the letter of 3 June, 2013 that does not matter. The phrase decision to which this Act applies is defined in s.3 of the ADJR Act to include a decision of an administrative character that is proposed to be made by a relevant person: s.3 of the ADJR Act. Mr Goodricke is clearly attempting to challenge a decision of an administrative character that is proposed to be made by the respondent. There is, therefore, a decision to which the ADJR Act applies.

2. The respondent argues that, in fact, what Mr Goodricke attempts to challenge is conduct which has been engaged in by the respondent which is preparatory to the making of a decision under the Act. Specifically, the respondent suggests that Mr Goodricke is seeking an order of review in respect of the sending of the letter by the respondent to Mr Goodricke and inviting his input into the proposed decision to be made by the respondent pursuant to s.6(1) of the ADJR Act.

3. Although it is possible to interpret Mr Goodricke’s application in that way, having regard to the written submissions that he has delivered and the oral submissions that he made, I do not apprehend that he is attempting to challenge the respondent’s conduct which is constituted by the invitation for him to have some input into the decision which is proposed to be made by the respondent.  Rather, he challenges the decision that the respondent proposes to make and of which it has given him notice.

4. In the event that I have misapprehended the target of Mr Goodricke’s attack, it is nonetheless possible for him to challenge the respondent’s conduct, preparatory though it may be. By s.6(1) of the ADJR Act, where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which the ADJR Act applies, a person who is aggrieved by the conduct may apply for an order of review in respect of the conduct. The grounds upon which such a person might apply under s.6(1) are identical to the grounds specified for s.5(1) of the ADJR Act, save for some textual differences consequent upon the different application of s.6(1).

5. Notwithstanding how Mr Goodricke’s complaint is viewed however, his challenge must fail for the same reasons.

6. The grounds upon which a person might claim relief in respect of a decision to which the ADJR Act applies are set out in s.5 of the Act. Section 5 contains many grounds, but Mr Goodricke relies on only s.5(1)(h). Section 5(3) also bears on the work done by s.5(1)(h). Those subsections are in the following terms:

   5  Applications for review of decisions

   (1)  A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:

   …

   (h)  that there was no evidence or other material to justify the making of the decision;

   …

   (3)  The ground specified in paragraph (1)(h) shall not be taken to be made out unless:

   (a)  the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or

   (b)  the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

7. Subsection 6(1) provides an identical ground of review in s.6(1)(h). Its operation too, is supplemented by s.6(3) in the same way that s.5(3) supplements s.5(1)(h). In the balance of the discussion that follows relating to this ground I have referred only to ss.5(1)(h) and 5(3) and the proposed decision foreshadowed in the letter of 3 June, 2013. But my reasoning is equally apposite to the alternative view of that letter and Mr Goodricke’s argument based upon ss.6(1)(h) and 6(3) of the Act.

8. Mr Goodricke bears the onus of proof in showing that the requirements of s.5(1)(h) and s.5(3)(a) or (b) have been made out: Sunchen Pty Ltd v Federal Commissioner of Taxation (2010) 75 ATR 13 at [23].

9. The respondent concedes that it is arguable that in making a determination under s.19 of the SRC Act that a person is no longer entitled to compensation, the decision maker is required by law to reach that decision only if a particular matter is established: namely that the compensation recipient is no longer incapacitated as a result of an injury that attracted the operation of the Act.  The same might be said of a determination that a person is no longer entitled to compensation pursuant to s.16 of the Act. 

10. The respondent argues, however, that s.5(3)(a) can only be satisfied if “there is no evidence or other material (including facts of which he or she is entitled to take notice) from which [the decision maker] can reasonably be satisfied that the matter is established”. 

11. In the letter of 3 June, 2013 the respondent’s delegate referred to medical reports from Drs Jetnikoff and Vecchio.  Those reports are before me.  The assertion made in the respondent’s letter that neither doctor was able to relate Mr Goodricke’s current symptoms to the injury sustained with the Commonwealth, during the years 1999 to 2000 is accurate.  Neither doctor thought that there was any ongoing injury or condition that was related to his employment in 1999/2000.  Both thought that the problem was an underlying condition unrelated to his employment.  To the extent that there had been an aggravation of that underlying condition related to his employment in 1999/2000, both thought that any aggravation had long since ceased.  The decision which the respondent proposes to make appears to be based, in part at least, upon that medical opinion. 

12. Much of Mr Goodricke’s written submissions and the oral submissions that he made were directed to showing that the respondent was quite wrong to consider acting upon the reports of Drs Jetnikoff and Vecchio.  He contends that the doctors are biased, having given many similar opinions in other cases, are likely to be acting in concert with each other, were sourced by the respondent so as to secure opinions that justified the proposed decision and are not properly qualified to give the opinions that they have expressed.

13. However, the evidence referred to in the respondent’s letter is reasonably capable of establishing that Mr Goodricke is not incapacitated as a result of a work related injury for the purposes of the SRC Act.  Whilst Mr Goodricke points out that he has an accepted medical condition for the purposes of the Act, described as an “aggravated regional pain syndrome (bilateral)”, it remains that his accepted condition is an aggravation.  The purport of the medical evidence relied upon by the respondent is that Mr Goodricke’s pain syndrome is not connected with his employment.  That is to say, the aggravation has come to an end. 

14. Dr Vecchio expresses the opinion that there is no link between Mr Goodricke’s current symptoms and the work performed by him in 1999 to 2000.  Dr Jetnikoff concluded that there was nothing in his assessment that indicated that Mr Goodricke suffered from anything other than Asperger’s disorder.  His mental state examination of Mr Goodricke could elicit no evidence “at all” that Mr Goodricke had any pain or discomfort.

15. As the respondent points out, the question which arises under s.5(3)(a) in this case is not whether the decision maker is, or should be satisfied that the relevant facts necessary to deny Mr Goodricke his entitlements under ss.19 or 16 of the SRC Act are established, but rather whether the decision maker could reasonably be satisfied that those matters are established.

16. I accept that the evidence possessed by the respondent is that Mr Goodricke would not benefit from treatment and is capable of working full time in suitable employment.  I accept that on that evidence the respondent could reasonably be satisfied that no medical treatment can reasonably be obtained in respect of his accepted condition and that he is not incapacitated from employment as a result of his accepted condition.

17. In my view Mr Goodricke cannot, on the material before the Court, establish the matters necessary to be established to engage s.5(3)(a) of the ADJR Act.

18. Moreover, Mr Goodricke cannot, on the material before the Court, establish that the respondent proposes to make the proposed decision on the basis of the existence of a particular fact which does not exist and thereby engage s.5(3)(b) of the ADJR Act. To the extent that the respondent proposes to make the foreshadowed decisions based upon a fact – the absence of any incapacity on Mr Goodricke’s part – the evidence before the Court does not permit of a finding that the relevant fact does not exist.

1. In my view, Mr Goodricke cannot engage either limb of s.5(3) of the ADJR Act. In my view, his application for review must, for those reasons fail.

2. Similarly, to the extent that his case relies upon s.6(1)(h) and s.6(3) of the ADJR Act, his claim cannot succeed for the same reasons.

The determination of his normal weekly earnings

1. This determination was made in November, 2000.  It was a decision which was capable of review according to the process set out in the information that was sent to Mr Goodricke when the determination was notified to him.

2. It appears that he has taken up the option of review.  The decision has been the subject of an application for review by him in the Administrative Appeals Tribunal.  The application was compromised by an agreement between Mr Goodricke and the respondent.  Mr Goodricke now complains that the agreement was reached through the respondent’s fraud and they should not now be permitted to rely upon the agreement.  But there is no evidence of fraud before me.  Fraud must be clearly identified and proved by appropriate evidence, not by vague allegations and inexact proofs.

3. In any event, as a matter of discretion, I would refuse the application for review of this determination because:

   a)it is made so long after the determination was made;

   b)other avenues of review, provided for in the SRC Act, were available and utilised by Mr Goodricke soon after the offending decision was made ; and

   c)the application seeks to attack the merits of the decision rather than to raise any particular ground of judicial review provided for by the ADJR Act.

The Constitutional matter

1. Finally, in respect of Mr Goodricke’s claim that arises out of s.44 of the ADJR Act and s.51(xxi) of the Constitution, this claim appears to relate to the way in which Comcare administers the compensation scheme under the Act. It is entirely unclear just what relief Mr Goodricke seeks in respect of that matter. No declaratory relief is sought by him (for example that s.44 of the Act is void) and the constitutional argument that he wishes to make has no bearing on the relief claimed by him in the originating application.

2. In any event, the constitutional argument must fail because there is no acquisition of property by the Commonwealth by the operation of s.44 of the Act. Mr Goodricke seeks to characterise as property his right to receive weekly payments under the Act. His argument seems to be that for periods during which the respondent ceases to pay him, but in respect of which he is entitled to weekly compensation or other compensation, the Commonwealth has acquired his property without compensation.

3. The Act, however, does not give rise to a right to receive payments weekly, but rather sets out a mechanism for assessing entitlement to weekly and other compensation payments.  The Act makes no provision about when compensation must be paid (other than s.26 which provides that compensation under ss.24 and 25 shall be paid within 30 days after the date of assessment).  I accept the respondent’s submission that for the purposes of ss.19(2) and 19(3) Comcare’s liability is to pay compensation “for each week” and not “in each week”. 

4. Moreover, the respondent’s liability and Mr Goodricke’s entitlement to receive compensation under the Act is created by the Act itself.  The obligation on the respondent is to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment: s.14(1) of the SRC Act.  The case is unlike Georgiadis v Australian & Overseas Telecommunications Corporation (1994) 179 CLR 297 and Commonwealth v Mewett (1997) 191 CLR 471. In those cases the High Court determined that s.44(1) of the SRC Act purported to extinguish a cause of action that arose by operation of the common law, on the ground that it operated to acquire property but did not provide just terms as required by s 51(xxi) of the Constitution. It was, to that extent, therefore invalid. But those cases say nothing about a statutory right established by the SRC Act itself.

5. The rights and entitlements that Mr Goodricke enjoys under the Act and the obligations imposed upon the respondent are entirely statutory in character.  I accept the respondent’s argument that they have no pre-existing basis in general law and there is no entitlement based on any antecedent proprietary rights recognised by the general law.  They are a statutory entitlement, the nature and extent of which depends entirely upon the terms of the legislation that grants them.  The rights exist only when the employee satisfies the statutory tests in relation to that right which may from time to time means that the employee’s entitlements no longer exist: Bienke v Minister for Primary Industries and Energy (1994) 63 FCR 567 at [585] – [587].

Conclusion

1. Mr Goodricke does not make out any of the grounds of his review.  For the above reasons, Mr Goodricke’s application must be dismissed with costs.  It is appropriate, I think, to make directions about submissions concerning the basis upon which costs ought to be assessed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:       6 March 2015