Hutchinson v Comcare (No 2)

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FEDERAL COURT OF AUSTRALIA

Hutchinson v Comcare (No 2) [2021] FCA 284

File numbers: WAD 161 of 2020
WAD 292 of 2020
Judgment of: JACKSON J
Date of judgment: 26 March 2021
Catchwords: ADMINISTRATIVE LAW - applications for judicial review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) - decisions under review made under the Safety, Rehabilitation and Compensation Act 1988 (Cth) - both decisions denied liability - actual and apprehended bias alleged on the basis of evidence relied in the decisions - no basis on which actual or apparent bias could be inferred - applications dismissed
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 43

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

Evidence Act 1995 (Cth) s 140

Judiciary Act 1903 (Cth) ss 55ZF, 55ZG

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14, 60, 61, 62, 63, 64, 69
Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593

Bar-Mordecai v Health Car Complaints Commission [2002] NSWCA 192

Cheung v Administrative Appeals Tribunal [2009] FCA 241; (2009) 176 FCR 20

CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 375 ALR 47

Comcare v Burton (1998) 157 ALR 522

Commonwealth of Australia v Snell [2019] FCAFC 57; (2019) 269 FCR 18

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Hamor v Commonwealth of Australia [2020] FCA 1748

Hutchinson v Comcare [2020] FCA 1508

Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649

Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135

McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504

Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427

Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594

MZAEU v Minister for Immigration and Border Protection [2016] FCAFC 100; (2016) 70 AAR 22

New South Wales v Coya (Constructions) Pty Ltd (Unreported, Supreme Court of New South Wales, 4 July 1994)

Re JRL; Ex parte CJL (1986) 161 CLR 342

Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425

Reece v Webber [2011] FCAFC 33; (2011) 192 FCR 254

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668

Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71

Webb v The Queen (1994) 181 CLR 41
Division: General Division
Registry: Western Australia
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 99
Date of hearing: 9 March 2021
Counsel for the Applicant: The applicant appeared in person
Counsel for the Respondent: Mr P Nolan
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:

26 MARCH 2021

THE COURT…

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Details
Case
[2021] FCA 284
Decision Date

CaseChat Overview and Summary

The applicant, Ms Hutchinson, sought judicial review of two decisions made by Comcare, the Commonwealth entity responsible for workers' compensation claims. The decisions in question were the 2020 Agoraphobia Decision and the 2020 Aggravation Decision, which respectively pertained to Ms Hutchinson's claim for compensation for agoraphobia and the aggravation of obesity leading to diabetes and atrial fibrillation. Ms Hutchinson argued that the decisions were flawed due to alleged actual and apprehended bias by the delegates who made the decisions, as well as errors in the consideration of evidence.

The court was required to determine whether the decisions were legally sound, specifically whether they adhered to the principles of natural justice, observed required procedures, were based on evidence, and did not involve errors of law. Ms Hutchinson's claims of bias and procedural unfairness centred on the delegates' alleged selective reliance on certain medical evidence that was adverse to her claims, while ignoring other evidence that she claimed supported her case.

The court found that Ms Hutchinson's allegations of bias and procedural unfairness were not substantiated. It held that the delegates had not acted with actual or apparent bias, nor had they failed to consider relevant evidence. The court found that the decisions were based on a comprehensive review of the available medical evidence and were logically supported by that evidence. Therefore, the court dismissed Ms Hutchinson's applications for judicial review of both decisions.

In light of the dismissals, the court ordered that Ms Hutchinson pay Comcare's costs of the applications. The court also set a deadline for the parties to agree on a lump sum for the costs, with a referral to a Registrar for determination if no agreement was reached.

Orders

Orders of the court

1. The application for judicial review of respondent's decision of 9 November 2020 is dismissed.

2. The applicant must pay the respondent's costs of and incidental to the application.

3. On or before 9 April 2021 the parties must file any agreed proposed minute of orders fixing a lump sum in relation to the respondent's costs of the application.

4. In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the respondent's costs is referred to a Registrar for determination.

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

Background

Background to the litigation

It is also relevant that under the SRC Act, Comcare's functions include 'to make determinations accurately and quickly in relation to claims and requests made to Comcare under this Act': s 69(a).Background to the 2020 Agoraphobia Decision As I said in Hutchinson (No 1) at [2], a large number of disputes between Ms Hutchinson and Comcare have been agitated in this court and in other jurisdictions. But the facts necessary for an understanding of the application in relation to the 2020 Agoraphobia Decision (WAD 161 of 2020) can be confined to the following. Ms Hutchinson was employed as a claims service officer for Comcare from 1999 until 2014. On 5 March 2010 Ms Hutchinson attended a training workshop, where she interpreted something said to her during a training exercise to be a death threat. In February 2011 she made a claim for compensation under the SRC Act for depression and anxiety said to have been caused by the incident at the workshop. In July 2011, Comcare accepted liability for a depressive disorder arising from the incident. In September 2013, Comcare accepted an extension of its liability to include post‑traumatic stress disorder (PTSD) and major depression. On 17 January 2014, Ms Hutchinson was retired on invalidity grounds. In January 2016, Ms Hutchinson asked Comcare whether it had the necessary medical evidence to be satisfied that she suffered agoraphobia as a secondary condition to the depressive disorder. Comcare treated this as a claim for compensation for the agoraphobia (and another disorder which is not presently relevant). On 9 February 2016, a delegate of Comcare refused the claim (2016 Agoraphobia Decision). That was a precursor to the 2020 Agoraphobia Decision. Ms Hutchinson applied to this court for judicial review of the 2016 Agoraphobia Decision, but she was out of time and so needed an extension. On 20 July 2017, Comcare determined that from that time, Ms Hutchinson would no longer receive any compensation from Comcare. On 13 April 2018, this court dismissed Ms Hutchinson's application for an extension of time to seek judicial review of the 2016 Agoraphobia Decision. On 6 June 2018, Ms Hutchinson asked Comcare to reconsider the 2016 Agoraphobia Decision. While, as set out below, the SRC Act provides for the reconsideration of certain decisions made under it, Ms Hutchinson was out of time to request this reconsideration. Comcare refused to extend the time and on 14 December 2018 the Tribunal affirmed that refusal. On 18 February 2020, Ms Hutchinson submitted another claim to Comcare for compensation for agoraphobia. In a decision dated 31 March 2020, a delegate of Comcare refused that claim because he considered that it alleged the 'same symptoms, disability and timeframe' as the claim that had been refused in February 2016. The 2020 Agoraphobia Decision (which was made on 11 June 2020) is the outcome of a request by Ms Hutchinson for Comcare to reconsider the decision described in the preceding paragraph. It was made by a delegate different to the one who made the 31 March 2020 determination.The terms of and reasons given for the 2020 Agoraphobia Decision

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The second decision now under challenge was made by a different delegate of Comcare. That delegate reconsidered an earlier determination of 7 October 2020 which denied liability under s 14 of the SRC Act for aggravation of obesity leading to diabetes and atrial fibrillation. On 9 November 2020 that delegate too decided (2020 Aggravation Decision) to affirm the earlier determination. She did so on the basis of the recommendation of a case manager at Allianz Australia, who provide claims management services to Comcare. The delegate simply adopted the case manager's reasons as her own and neither party claimed any relevant distinction between the case manager's recommendation and the delegate's decision, so it is convenient from now on to refer to the reasons in the recommendation as the reasons of Comcare. In her originating application in relation to the 2020 Agoraphobia Decision (in proceeding WAD 161 of 2020), Ms Hutchinson alleges that the delegate 'was not impartial or free of actual or apparent bias', and 'made findings that were not based on evidence that was genuine, relevant or logically capable of supporting those findings'. She alleged that the decision should be set aside on particular grounds of review found in s 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), which she later corrected in submissions so as to rely instead on s 5. The grounds are that there was a breach of the rules of natural justice (s 5(1)(a)), the procedures that are required by law to be observed were not observed (s 5(1)(b)), that the decision involved an error of law (s 5(1)(f)), and that there was no evidence or other material to justify the making of the proposed decision (s 5(1)(h)). Ms Hutchinson's allegations in respect of the 2020 Agoraphobia Decision are all based on what is said to have been 'cherry‑picking' by the delegate, in relying only on medical evidence that was adverse to her interests and ignoring what she says was a preponderance of medical evidence establishing that her employment was the sole cause of her agoraphobia. It is said that the delegate relied on medical reports which had 'been emphatically and convincingly shown to be "false and misleading" in material particular[s]'. Essentially, Ms Hutchinson claims that the delegate set out to make a determination adverse to her and that he achieved that by deliberately disregarding evidence favourable to her and only having regard to unfavourable evidence. The grounds on which Ms Hutchinson challenges the 2020 Aggravation Decision (in proceeding WAD 292 of 2020) are similar. She alleges that the delegate 'made findings that were not based on evidence that was genuine, relevant, logically or honestly capable of supporting those findings' and was 'not impartial or free of actual or apparent bias'. Here, the bias is said to be evidenced by reliance on decisions made in 2015 and 2016 which are said to have contained false and misleading statements made in order to justify denying Ms Hutchinson's previous claims. She relies on the same grounds in s 5(1) of the ADJR Act as she does in relation to the 2020 Agoraphobia Decision. Ms Hutchinson also complains that Comcare breached the rules of natural justice by affirming an earlier determination knowing that it was not based on the claim she had actually made.

Ratio Decidendi

Legal Principle Established

Second, Ms Hutchinson did not advance a case that the delegate erred by failing to take into account a relevant consideration, in the form of relevant evidence. Her case was squarely based on alleged bias. While she is self-represented and not a legal practitioner, I have had regard to her history of working in this very field for Comcare, her articulate presentations and ready grasp of the issues at the hearings in this matter, the fact that she had obviously reviewed the available grounds in s 5 of the ADJR Act, and her firmly expressed view in both the hearing of this application and the interlocutory hearing for Hutchinson (No 1) that her complaint was about natural justice. These things persuade me that it is appropriate to hold her to the forensic choice not to rely on failure to take a relevant consideration into account. Saying that does not imply that the ground would have been successful if it had been pursued.The material said to have been omitted from consideration in the 2020 Agoraphobia Decision Ms Hutchinson affirmed an affidavit on 22 December 2020 to which she annexed various materials which, she says, the delegate should have taken into account. None of these items were in the court book. They are as follows:(1)A report of Dr Spear dated 15 September 2011. This diagnoses Ms Hutchinson with 'major depressive disorder'. It makes no reference to agoraphobia. It records Ms Hutchinson as saying that she could walk by herself to her general practitioner's surgery and that she could shop with her sister and niece, and that she believed she could shop unaccompanied. Dr Spear's view at that stage was that she could commence a graduated return to work program so as to resume full normal duties within six months.(2)A report of Dr Brendon Dellar, clinical psychologist, dated 28 May 2013. Dr Dellar appears to have been Ms Hutchinson's treating psychologist and this report seems to have been prepared at her request. It says that she presented with very high anxiety and agoraphobic avoidance. But Dr Dellar's diagnosis was of PTSD and major depressive disorder. He did not present a diagnosis of agoraphobia as a specific condition. His report recorded Ms Hutchinson as saying she does not often leave the home and 'when she does venture out she experiences a heightened sense of anxious‑arousal and hyper-vigilance'.(3)A report to Comcare by Dr Lawrence Blumberg dated 25 June 2013. The purpose of the report was to assess Ms Hutchinson's capacity to undertake a rehabilitation program. It recounts her as having described the onset of symptoms after the alleged incident at the workshop in 2010. The symptoms Ms Hutchinson described included agoraphobia. Dr Blumberg said she continued to experience agoraphobic avoidance, which was chronic and remained a problem. He noted that Ms Hutchinson avoids socialising, avoids going out and spends the majority of time at home, but does occasionally go out with her sister and shops at the local shopping centre during quiet periods to avoid becoming overwhelmed and anxious. Dr Blumberg's diagnosis was major depressive disorder and chronic PTSD, with no specific diagnosis of agoraphobia. He said that Ms Hutchinson interpreted the incident at the workshop in 2010 'as a "real threat" which in my opinion accounted for her observed cognitive fixation, ruminations and anxious avoidance agoraphobic behaviour'.(4)A report to Comcare from an occupational physician, Dr Christiaan Barnard, dated 4 September 2013. The purpose of the report was to assess Ms Hutchinson's occupational fitness and to comment on possible causes for her condition. It relied on and summarised previous reports including that of Dr Blumberg. It recounted Ms Hutchinson's reporting of 'anxiety being outside and in groups of people (agoraphobia)'. Dr Barnard agreed with Dr Blumberg's assessment of major depressive disorder which was recurrent and strongly associated with a co-morbid chronic PTSD. He said that her anxiety and agoraphobia stemmed from the PTSD but did not formally diagnose agoraphobia as a separate condition. He accepted that the agoraphobia was a major cause of her inability to return to the workplace. Dr Barnard's conclusion was that Ms Hutchinson met the criteria for invalidity retirement under the Superannuation Act1976 (Cth) and was totally and permanently incapacitated for work.(5)A Comcare form, the relevant part of which Dr Barnard had filled out as follows (the doctor's writing on the form being shown here in bold):After clinical examination, medical tests and specialist tests as appropriate, I consider that the member is suffering from the following medical condition(s). Please indicate on a scale of 1 to 10 the degree of incapacity for each condition (where 10 = total incapacity).CONDITION SCALE1. POST TRAUMATIC STRESS DISORDER 102. MAJOR DEPRESSIVE DISORDER 083. AGORAPHOBIA 104. SOCIAL PHOBIA 10There is also handwriting on the side of this which appears to indicate that conditions 3 and 4 are 'Secondary to PTSD'. Ms Hutchinson's written submissions say that this best articulates the relevant medical evidence on the file.(6)Another report of Dr Dellar, addressed to Comcare, dated 28 June 2017. The purpose of this report is not apparent on its face. Dr Dellar described gradually worsening agoraphobic symptoms as among Ms Hutchinson's current symptoms. His diagnosis at the time of this report was:The current diagnosis is Posttraumatic [sic] Stress Disorder (chronic) and Major Depression. Agoraphobia is conceptualised as a part of the avoidance cluster of symptoms in PTSD. Ms Hutchinson reports symptoms consistent with the DSM-5 criteria for both these disorders.I read 'both these disorders' to be referring to the PTSD and major depression mentioned in the first sentence of the paragraph. Dr Dellar described agoraphobic avoidance as a symptom cluster that had worsened and said that he did not believe that Ms Hutchinson had fully recovered from either major depressive disorder or PTSD.(7)A further report from Dr Dellar dated 12 May 2018. The addressee and purpose of the report do not appear on its face, although from the questions stated and answered in it, it seems to relate to an issue concerning Ms Hutchinson's interactions with a former treating general practitioner, and I infer that the questions were posed by Ms Hutchinson herself. Dr Dellar said that Ms Hutchinson 'continued to have significant impairment with regards to agoraphobic avoidance and this was exacerbated with the advent of online grocery shopping'. This is said in the context of the possible effects of an apparently distressing consultation Ms Hutchinson is said to have had with the general practitioner. Dr Dellar also refers to increased agoraphobic avoidance and depression symptoms in the context of a question about the psychological effect of Comcare's decision on 20 July 2017 to cease present liability on her claim. One of the questions asked for comment on Dr O'Daly's reports of 22 December 2015 and 28 January 2016 (to which the delegate referred in his reasons for the 2020 Agoraphobia decision). Dr Dellar's observations on Dr O'Daly's opinions included the following:Dr O'Daly mentioned avoidant, depressive and anxious personality traits which I believe have been misinterpreted as Personality Disorder. These traits, if present, are a compensatory means of coping but are not considered a disorder in this case. I would most likely categorise this as Agoraphobia.With reference to the supplementary report, the assertion that Ms Hutchinson does not suffer from Agoraphobia is at odds with all existing evidence. She indeed does experience a high level of agoraphobia and this has been one of the main features of Ms Hutchinson's presentation.