Hutchinson v Comcare

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FEDERAL COURT OF AUSTRALIA

Hutchinson v Comcare [2019] FCA 1440

Appeal from: Hutchinson v Comcare (Administrative Appeals Tribunal, Nos. 2017/5357 and 2017/6813, 23 November 2018)
File number: WAD 1 of 2019
Judge: COLVIN J
Date of judgment: 5 September 2019
Catchwords: ADMINISTRATIVE LAW - appeal from decision of the Administrative Appeals Tribunal affirming two decisions of Comcare to the effect that the applicant had no future entitlement to compensation - where grounds raised alleged breaches of the Privacy Act 1988 (Cth) - where grounds raised alleged denial of procedural fairness - where complaints made about Tribunal's approach to medical evidence - where no error demonstrated in Tribunal's reasoning - appeal dismissed
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 43

Privacy Act 1988 (Cth)

Judiciary Act 1903 (Cth) s 55ZF
Cases cited:

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16

Hutchinson v Comcare [2018] FCA 505

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16
Date of hearing: 4 September 2019
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 30
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: Ms KE Slack
Solicitor for the Respondent: Sparke Helmore Lawyers

ORDERS

WAD 1 of 2019
BETWEEN:

KAREN HUTCHINSON

Applicant
AND:

COMCARE

Respondent

JUDGE:

COLVIN J

DATE OF ORDER:

5 SEPTEMBER 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The applicant do pay the respondent's costs to be assessed if not agreed.

3.The costs of the appeal be assessed on a lump sum basis.

4.If the parties agree on a lump sum figure in relation to the first respondent's costs, they are to file a joint minute of proposed orders on or before 19 September 2019.

5.In the absence of any joint proposed order pursuant to order 4:

(a)the respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Courts Costs Practice Note (GPN-COSTS).

(b)within 14 days of the respondent filing a Costs Summary, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of GPN‑COSTS.

6.In the absence of any agreement having been reached, after the expiry of the time referred to in order 5(b), the matter of an appropriate lump sum figure for the  respondent's costs be referred to a Registrar for determination on the papers.

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


REASONS FOR JUDGMENT

COLVIN J:

  1. Ms Hutchinson brings an appeal against a decision of a Deputy President of the Administrative Appeals Tribunal.  The Tribunal decision concerned applications brought by Ms Hutchinson in the Tribunal for the review of two decisions by Comcare to the effect that she had no future entitlement to compensation for any injury arising out of or in the course of her employment.  Prior to those decisions, Ms Hutchinson had been receiving compensation for a…

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Details
Case
[2019] FCA 1440
Decision Date

CaseChat Overview and Summary

In Hutchinson v Comcare, the Federal Court of Australia was called upon to review a decision of the Administrative Appeals Tribunal (AAT). The applicant, Ms Hutchinson, appealed against the AAT's decision that affirmed two prior decisions by Comcare, which had denied her future entitlement to compensation. The appeal raised issues pertaining to alleged breaches of the Privacy Act 1988 (Cth) and claims of procedural unfairness, particularly in relation to the handling of medical evidence by the Tribunal. Additionally, Ms Hutchinson made complaints about the cross-examination of her, the conduct of Comcare's legal representatives, and the validity of the original decisions made by Comcare.

The court assessed the grounds of appeal, which included claims that the Tribunal had not properly considered certain medical evidence and that there had been procedural unfairness. The court found no merit in these claims, as the Tribunal had indeed considered relevant medical evidence, focusing primarily on the most recent assessments by a psychologist and a psychiatrist. The court also found no procedural unfairness in the way the Tribunal handled the case, noting that Ms Hutchinson's complaints about her cross-examination did not undermine the Tribunal's conclusions, and that her objections to Comcare's legal representatives lacked specificity and did not demonstrate an error of law. The court further ruled that Ms Hutchinson's challenge to the validity of the original Comcare decisions was irrelevant to the appeal, as the AAT's jurisdiction was triggered by the existence of the decision, not its validity.

The court concluded that no error of law was demonstrated in the AAT's reasoning or approach, and thus dismissed the appeal. It noted that Ms Hutchinson's submissions, while expressing frustration, did not substantiate the claims of bias or procedural unfairness. The court also highlighted that the AAT's reasons demonstrated an impartial and independent consideration of the case. Regarding costs, the court ordered that the applicant pay the respondent's costs, with provisions for a lump sum assessment if the parties could not agree on the amount. The court provided detailed instructions for the assessment process if an agreement could not be reached.

The final orders of the court were to dismiss the appeal, order the applicant to pay the respondent's costs, assess the costs on a lump sum basis, and provide detailed procedures for cost assessment if the parties could not agree on a lump sum figure. These orders were made in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The appeal be dismissed.

2. The applicant do pay the respondent's costs to be assessed if not agreed.

3. The costs of the appeal be assessed on a lump sum basis.

4. If the parties agree on a lump sum figure in relation to the first respondent's costs, they are to file a joint minute of proposed orders on or before 19 September 2019.

5. In the absence of any joint proposed order pursuant to order 4:

(a) the respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Courts Costs Practice Note (GPN-COSTS).

(b) within 14 days of the respondent filing a Costs Summary, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of GPN‑COSTS.

6. In the absence of any agreement having been reached, after the expiry of the time referred to in order 5(b), the matter of an appropriate lump sum figure for the respondent's costs be referred to a Registrar for determination on the papers.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In the case of the complaints about the cross‑examination of Ms Hutchinson there is the further difficulty that the Tribunal's conclusions did not rest upon any adverse finding concerning the evidence of Ms Hutchinson.Other medical evidence Contrary to the submissions made by Ms Hutchinson, the Tribunal did consider medical evidence other than that received from the Psychologist and the Psychiatrist. The Tribunal recounted what it considered to be the relevant history of the medical reports. There is no submission identifying particular material that was not considered and how that material was relevant and ought to have been addressed by the Tribunal. Ultimately, the Tribunal formed the view that the issue as to whether there was an injury that arose out of or in the course of employment, being an injury contributed to by the employment, turned upon the evidence of the Psychologist and the Psychiatrist. That approach was understandable given that the assessment to be made by the Tribunal related to a claim to a future entitlement to compensation and it was the evidence of these two practitioners that provided the most up to date assessments. Their evidence (being the most recent opinions concerning the medical condition of Ms Hutchinson) was referred to in detail. No error of law has been shown as to the way in which the Tribunal approached its consideration of the medical evidence.Complaints about lawyers for Comcare The submissions for Ms Hutchinson raise a number of complaints about the lawyers for Comcare. They are expressed in general terms. There is no particular claim of conduct that affected the outcome before the Tribunal in a manner that would amount to an error of law, whether by reason of procedural unfairness or otherwise. The submissions advanced do not demonstrate any error of law.Other matters In oral submissions, Ms Hutchinson complained that the original decisions should never have been made because there was no medical evidence. The submissions came close to a complaint about the validity of the original decisions. However, the present proceedings are an appeal against the decision of the Tribunal. It was Ms Hutchinson who brought the application for review in the Tribunal. Therefore, her application was founded upon the existence of a decision that might be the subject of an application for review. The validity of the application for review does not depend upon the validity of the original decision. Rather, it depends upon the fact of the decision: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [39]‑[41] (Gageler, Keane and Nettle JJ). Error of law by the Tribunal is not demonstrated by seeking to challenge the validity of the original decision. Ms Hutchinson did allege that the Tribunal acted partially or in a manner that was not free from bias. She began her oral submissions in those terms. However, there were no particulars provided as to how this was said to be manifest, other than by the result or the approach to the medical evidence. It is not uncommon for complaints to be expressed in the language of bias by litigants acting on their own behalf. However, questions of possible bias only arise where it could properly be claimed, on a reasonable and specified basis, that a fair-minded and appropriately informed lay observer might reasonably apprehend that the decision-maker might not bring a fair, impartial and independent mind to the determination of the matter on its merits. No matter was identified by Ms Hutchinson that might form a proper basis for such a claim. On the contrary, the reasons given by the Tribunal manifest the application of a fair, impartial and independent mind to the issues in the case. I take the language used by Ms Hutchinson to be no more than an attempt at emphatic expression to support her other complaints.

Decision

Reasons for decision

Finally, it is necessary to say something about other matters referred to by Ms Hutchinson in her written submissions. At a number of points the written submissions prepared by Ms Hutchinson in support of her appeal make general allegations of impropriety and manifest her frustration about the refusal of her ongoing claims to compensation. In some instances, they reduce to personal attack. Insult adds no weight to the merit of a submission. It is no substitute for a proper basis for a claim or, in the present context, the need to demonstrate an error of law by the Tribunal. As the subject matter of these allegations have no relevance to the issues for resolution in the present appeal, I have not addressed them separately in these reasons. They have no relevance because they are either complaints about other proceedings or they otherwise fail to identify an error of law affecting the way the Tribunal dealt with the applications by Ms Hutchinson for review.Conclusion and costs It follows that the appeal must be dismissed. The parties were invited to make submissions concerning appropriate costs orders. Ms Hutchinson accepted that costs would usually follow the event. For the Minister, it was submitted that there should be provision for lump sum assessment of costs orders on a simplified basis. A proposed consent order reflecting that positon has since been provided. I accept that it is appropriate for such orders to be made and I will make orders as to costs substantially in terms of the consent.

Ratio Decidendi

Legal Principle Established

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