Haywood and Comcare (Compensation) - [2023] AATA 3360

Haywood and Comcare (Compensation) [2023] AATA 3360 (3 August 2023)
Division:GENERAL DIVISION
File Number(s): 2018/7279
2014/5839

Re:Gregory Haywood
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:3 August 2023
Place:Canberra

Application for confidentiality orders refused.
................[SGD].............................
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – request for confidentiality orders in respect of past decisions – discretionary power to make orders – factors relevant to exercise of discretion – alleged harm from publication of decisions – alleged abuse of power and bias – requirement for logically probative material – procedural fairness – adverse findings based on evidence put to applicant – public hearing – opportunity to be heard – failure to comply with direction – request for confidentiality orders not made out – application refused
Legislation
Administrative Appeals Tribunal Act 1975, s 33, 35, 39, 43, 44
Safety, Rehabilitation and Compensation Act 1988, s 5A, 5B, 14
Cases
ASIC v PTLZ [2008] FCAFC 164
Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185
CAP21 v Administrative Appeals Tribunal & Anor [2022] FCA 729
Ebner v Official Trustee in Bankruptcy [2000] HCA 63
Haywood and Comcare (Compensation) [2016] AATA 667
Haywood and Comcare [2021] AATA 504
Re Pochi and Minister for Ethnic Affairs (1979) 36 FCR 482
REASONS FOR DECISION
Mr S. Webb, Member
3 August 2023

Gregory Haywood made a request for confidentiality orders to redact his name from decisions made by the Tribunal in 2016 and in 2021, or to expunge the cases entirely.[1] The decisions were in respect of applications Mr Haywood lodged for review of decisions Comcare made to refuse his claims for compensation (application 2014/5839 and application 2018/7279) (substantive applications).
[1] Affidavit of Gregory Haywood (unwitnessed), 26 November 2022, at [27].
Mr Haywood’s request was made in the context of proceedings remitted by the Federal Court of Australia[2] in respect of a request for confidentiality orders by a witness (CAP21) who gave evidence in the substantive applications.
[2] CAP21 v AAT [2022] FCA 729.
This interlocutory decision addresses Mr Haywood’s request for confidentiality orders, alone.
Short facts and procedural history
As I comprehend Mr Haywood’s request, it relates to decisions of the Tribunal in each of the substantive applications, namely:
(a)Haywood and Comcare (Compensation) [2016] AATA 667 (2016 Decision); and
(b)Haywood and Comcare [2021] AATA 504 (2021 Decision).
Each of these decisions sets out factual findings which it is not necessary to recite in detail for present purposes.
Nonetheless, in order to assist understanding, it is helpful to set out short background facts drawn from these decisions.
On 9 December 2013, Mr Haywood claimed compensation for an alleged injury in his previous employment by the Commonwealth Department of Environment (Department) which he first noticed on 6 July 2012. The claimed injury allegedly arose from circumstances in his employment involving CAP21, his then supervisor. Mr Haywood asserts CAP21 was biased against him and treated…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] AATA 3360
Decision Date: 3 August 2023

CaseChat Overview and Summary

This decision concerned an interlocutory application by Mr Haywood for confidentiality orders in relation to two previous decisions of the Administrative Appeals Tribunal (AAT): *Haywood and Comcare (Compensation)* [2016] AATA 667 and *Haywood and Comcare* [2021] AATA 504. The dispute arose from Mr Haywood's claims for compensation for an alleged injury and aggravation of injury sustained during his employment with the Commonwealth Department of Environment, which Comcare had refused. Mr Haywood alleged unfair treatment, bias, and sexual harassment by his supervisor, CAP21, and that he was falsely accused of wrongdoing. The AAT was required to determine whether to exercise its discretionary power to make confidentiality orders regarding the published decisions.

The legal issues before the Tribunal were whether the material presented by Mr Haywood established a sufficient basis for the exercise of its discretion to grant confidentiality orders. Specifically, the Tribunal considered whether the alleged harm from the publication of the decisions, including claims of abuse of power and bias, was supported by logically probative material. The Tribunal also considered the principles of procedural fairness, including whether Mr Haywood had been afforded an opportunity to be heard and whether any adverse findings were based on evidence put to him.

The Tribunal reasoned that the power to make confidentiality orders is discretionary and requires a compelling case. It found that Mr Haywood had not provided logically probative material to substantiate his claims of harm or abuse of power, nor had he demonstrated that the previous decisions were based on unfair procedures or bias. The Tribunal noted that Mr Haywood had been afforded procedural fairness in the prior proceedings and had the opportunity to present his case. The Tribunal concluded that the request for confidentiality orders had not been made out on the evidence presented.

Consequently, the Tribunal refused Mr Haywood's application for confidentiality orders.

Orders

Orders of the court

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Background

Background to the litigation

This interlocutory decision addresses Mr Haywood’s request for confidentiality orders, alone.Short facts and procedural history As I comprehend Mr Haywood’s request, it relates to decisions of the Tribunal in each of the substantive applications, namely:(a)Haywood and Comcare (Compensation) [2016] AATA 667 (2016 Decision); and(b)Haywood and Comcare [2021] AATA 504 (2021 Decision). Each of these decisions sets out factual findings which it is not necessary to recite in detail for present purposes. Nonetheless, in order to assist understanding, it is helpful to set out short background facts drawn from these decisions. On 9 December 2013, Mr Haywood claimed compensation for an alleged injury in his previous employment by the Commonwealth Department of Environment (Department) which he first noticed on 6 July 2012. The claimed injury allegedly arose from circumstances in his employment involving CAP21, his then supervisor. Mr Haywood asserts CAP21 was biased against him and treated him unfairly and subjected him to sexually harassment. Mr Haywood alleged he was falsely accused of wrongdoing in the workplace in a code of conduct counselling session with CAP21 and another person, and he was inappropriately pressured to sign a document. In November 2014, Comcare decided to refuse his compensation claim on grounds the adjustment disorder he suffered, which amounted to a ‘disease’ for the purposes of s 5B of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), was the result of reasonable administrative action taken in a reasonable manner in respect of his employment, and it was therefore excluded as an ‘injury’ under s 5A of the SRC Act. Mr Haywood applied for review of this decision by the Tribunal: application 2014/5839. On 31 August 2016, the Tribunal (differently constituted) decided to affirm Comcare’s decision and published written reasons: the 2016 Decision. Mr Haywood’s raised assertions of bullying, sexual harassment and unfair treatment in his employment by the Department in the context of other actions he took seeking remedy. Mr Haywood raised an Australian Public Service code of conduct breach in respect of CAP21 in July 2014 and shortly thereafter, on 11 December 2014, his employment by the Department was terminated on misconduct grounds. This was a matter Mr Haywood took up in a further application to the Fair Work Commission alleging unfair dismissal. I understand in February 2015 a deed of settlement was agreed between Mr Haywood and the Department, the terms of which concluded Mr Haywood’s actions in the Fair Work Commission and provided for him to be paid a settlement sum by the Department. In March 2015, Mr Haywood claimed compensation for an alleged aggravation injury caused by circumstances in his employment in August and September 2014. Mr Haywood asserted baseless accusations had been made against him in a public forum and the Department had not followed medical recommendation to provide him a safe workplace, rather he had been subjected to ongoing harassment. In July 2015, Comcare decided to refuse Mr Haywood’s compensation claim on grounds it was not satisfied an aggravation injury was made out. Mr Haywood applied to the Tribunal for review of this decision, but subsequently withdrew the application in September 2016.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As I comprehend Mr Haywood’s request, it relates to decisions of the Tribunal in each of the substantive applications, namely:(a)Haywood and Comcare (Compensation) [2016] AATA 667 (2016 Decision); and(b)Haywood and Comcare [2021] AATA 504 (2021 Decision). Each of these decisions sets out factual findings which it is not necessary to recite in detail for present purposes. Nonetheless, in order to assist understanding, it is helpful to set out short background facts drawn from these decisions. On 9 December 2013, Mr Haywood claimed compensation for an alleged injury in his previous employment by the Commonwealth Department of Environment (Department) which he first noticed on 6 July 2012. The claimed injury allegedly arose from circumstances in his employment involving CAP21, his then supervisor. Mr Haywood asserts CAP21 was biased against him and treated him unfairly and subjected him to sexually harassment. Mr Haywood alleged he was falsely accused of wrongdoing in the workplace in a code of conduct counselling session with CAP21 and another person, and he was inappropriately pressured to sign a document. In November 2014, Comcare decided to refuse his compensation claim on grounds the adjustment disorder he suffered, which amounted to a ‘disease’ for the purposes of s 5B of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), was the result of reasonable administrative action taken in a reasonable manner in respect of his employment, and it was therefore excluded as an ‘injury’ under s 5A of the SRC Act. Mr Haywood applied for review of this decision by the Tribunal: application 2014/5839. On 31 August 2016, the Tribunal (differently constituted) decided to affirm Comcare’s decision and published written reasons: the 2016 Decision. Mr Haywood’s raised assertions of bullying, sexual harassment and unfair treatment in his employment by the Department in the context of other actions he took seeking remedy. Mr Haywood raised an Australian Public Service code of conduct breach in respect of CAP21 in July 2014 and shortly thereafter, on 11 December 2014, his employment by the Department was terminated on misconduct grounds. This was a matter Mr Haywood took up in a further application to the Fair Work Commission alleging unfair dismissal. I understand in February 2015 a deed of settlement was agreed between Mr Haywood and the Department, the terms of which concluded Mr Haywood’s actions in the Fair Work Commission and provided for him to be paid a settlement sum by the Department. In March 2015, Mr Haywood claimed compensation for an alleged aggravation injury caused by circumstances in his employment in August and September 2014. Mr Haywood asserted baseless accusations had been made against him in a public forum and the Department had not followed medical recommendation to provide him a safe workplace, rather he had been subjected to ongoing harassment. In July 2015, Comcare decided to refuse Mr Haywood’s compensation claim on grounds it was not satisfied an aggravation injury was made out. Mr Haywood applied to the Tribunal for review of this decision, but subsequently withdrew the application in September 2016.

Ratio Decidendi

Legal Principle Established

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