Hutchinson v Comcare

Case [2020] FCA 1508


FEDERAL COURT OF AUSTRALIA

Hutchinson v Comcare [2020] FCA 1508

File number: WAD 161 of 2020
Judgment of: JACKSON J
Date of judgment: 16 October 2020
Catchwords: PRACTICE AND PROCEDURE – interlocutory application pursuant to s 10(2)(b)(ii) Administrative Decisions (Judicial Review) Act 1977 (Cth) for refusal of originating application seeking judicial review - whether complaint more appropriately pursued in Administrative Appeals Tribunal pursuant to s 64 Safety, Rehabilitation and Compensation Act 1988 (Cth) - question to be considered in the circumstances of the case - where applicant seeks judicial review on basis of denial of procedural fairness, not merits review - application dismissed
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 29, 40, 43, 44

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6, 10

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 60, 62, 64, 65, Part VI

Federal Court of Australia Act 1976 (Cth) s 37M

Federal Court Rules 2011 (Cth) rr 30.01, 30.02

Cases cited:

ActewAGL Distribution v The Australian Energy Regulator [2011] FCA 639; (2011) 195 FCR 142

Clement v Comcare [2007] FCA 2039

Cremona v Administrative Appeals Tribunal [2015] FCAFC 72; (2015) 230 FCR 1

CSL Australia Pty Ltd v Minister for Infrastructure and Transport [2014] FCAFC 10; (2014) 221 FCR 165

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577

Duncan v Fayle [2004] FCA 723; (2004) 138 FCR 510

Edelsten v Minister for Health (1994) 58 FCR 419

Hutchinson v Comcare (No 4) [2019] FCA 1133

Hutchinson v Comcare [2018] FCA 505

Kelly v Coats (1981) 35 ALR 93

Kimberly-Clark Ltd v Commissioner of Patents (1988) 83 ALR 714

McGowan v Migration Agents Registration Authority [2003] FCA 482; (2003) 129 FCR 118

Swan Portland Cement Ltd v Comptroller‑General of Customs (1989) 25 FCR 523

Von Stieglitz v Comcare [2012] FCA 55

Division: General Division
Registry: Western Australia
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 45
Date of hearing: 13 October 2020
Counsel for the Applicant: The applicant appeared in person
Counsel for the Respondent: Mr A Burgess
Solicitor for the Respondent: Sparke Helmore Lawyers

ORDERS

WAD 161 of 2020
BETWEEN:

KAREN HUTCHINSON

Applicant

AND:

COMCARE

Respondent

ORDER MADE BY:

JACKSON J

DATE OF ORDER:

16 OCTOBER 2020

THE COURT ORDERS THAT:

1.Pursuant to s 17(2), s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and reasons for judgment in support of these orders are made and published from chambers.

2.The question of whether to refuse relief to the applicant pursuant to s 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) is to be determined as a preliminary issue.

3.The respondent's amended interlocutory application dated 2 September 2020 is otherwise dismissed.

4.The matter is listed for a case management hearing on 28 October 2020 at 10.30am.

Note:   Entry of orders is dealt with in Rule…

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AGLC
Hutchinson v Comcare [2020] FCA 1508
Case
[2020] FCA 1508
Decision Date

CaseChat Overview and Summary

Hutchinson v Comcare is a case before the Federal Court of Australia concerning an interlocutory application filed under section 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The applicant, Ms Hutchinson, sought judicial review on the basis of a denial of procedural fairness against the respondent, Comcare. The legal issue before the court was whether Ms Hutchinson's complaint should be more appropriately pursued in the Administrative Appeals Tribunal (AAT) under section 64 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), given the potential for a more suitable remedy through the AAT.

The court considered the circumstances of the case and the nature of Ms Hutchinson's application, which focused on the denial of procedural fairness rather than merits review. The court recognised that Ms Hutchinson had articulated coherent reasons for seeking judicial review instead of AAT review, and that the court was effectively required to assume her concerns were well founded in this interlocutory application. Although the court acknowledged that there might be adequate provision for review in the AAT, the applicant's choice of remedy was a significant factor. The court concluded that the choice of remedy made by Ms Hutchinson should be respected and that the other matters outlined did not present strong countervailing reasons. Consequently, the interlocutory application was dismissed.

In its orders, the court determined that the question of whether to refuse relief to the applicant pursuant to section 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) would be decided as a preliminary issue. The respondent's amended interlocutory application dated 2 September 2020 was dismissed, and the matter was listed for a case management hearing on 28 October 2020 at 10.30am. The court emphasised the importance of resolving the proceeding without further delay and brought the parties in for a directions hearing to programme the case for a final hearing as soon as practicable.

Orders

Orders of the court

1. Pursuant to s 17(2), s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and reasons for judgment in support of these orders are made and published from chambers.

2. The question of whether to refuse relief to the applicant pursuant to s 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) is to be determined as a preliminary issue.

3. The respondent's amended interlocutory application dated 2 September 2020 is otherwise dismissed.

4. The matter is listed for a case management hearing on 28 October 2020 at 10.30am.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

If, contrary to my view, there is adequate provision for review in the AAT in the circumstances of this application, I would exercise the discretion against dismissing the proceeding. The most influential consideration here is that Ms Hutchinson has articulated coherent reasons for wishing to pursue a remedy which the court, and not the AAT, can provide. Since the court is effectively required to assume in this interlocutory application that her concerns are well founded, the choice of remedy she has made should be respected. The other matters I have outlined do not present strong countervailing reasons.Conclusion The interlocutory application will be dismissed. But it is important that the proceeding be resolved without further delay. I will bring the parties in for a directions hearing so that it can be programmed to a final hearing as soon as practicable.

Ratio Decidendi

Legal Principle Established

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