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
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
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
Ratio Decidendi
Legal Principle Established
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