Hutchinson v Comcare (No 2)

FEDERAL COURT OF AUSTRALIA

Hutchinson v Comcare (No 2) [2018] FCA 1179

File number:

WAD 404 of 2016

Judge:

BROMBERG  J

Date of judgment:

7 August 2018

Catchwords:

PRACTICE AND PROCEDURE – interlocutory application for summary judgment in respect of all or part of a proceeding under s 31A of the Federal Court of Australia Act 1976 (Cth) and/or r 26.01 of the Federal Court Rules 2011 (Cth) – principles relevant to summary judgment applications - whether no reasonable prospect of success in applicant’s claim that “reprisal action” was taken against her under s 13 of the Public Interest Disclosure Act 2013 (Cth) (“PID Act”) – whether claim under the PID Act is an abuse of process because it is being pursued for collateral purposes – principles applicable to establishing abuse of process – application for summary judgment dismissed

Legislation:

Federal Court of Australia Act 1976 (Cth)

Federal Court Rules 2011 (Cth)

Public Interest Disclosure Act 2013 (Cth)

Cases cited:

Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955

Energy Australia Yallourn Pty Ltd v Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 1245

Hutchinson v Comcare [2017] FCA 1145

Hutchinson v Comcare [2017] FCA 136

Kermani v Westpac Banking Corporation [2012] 36 VR 130

Date of hearing:

Determined on the papers

Registry:

Western Australia

Division:

Fair Work Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

47

Counsel for the Applicant:

The Applicant is self-represented

Counsel for the Respondent:

Ms R Sweet

Solicitor for the Respondent:

Norton Rose Fulbright

ORDERS

WAD 404 of 2016

BETWEEN:

KAREN HUTCHINSON

Applicant

AND:

COMCARE

Respondent

JUDGE:	BROMBERG  J
DATE OF ORDER:	7 AUGUST 2018

THE COURT ORDERS THAT:

1.The respondent’s interlocutory application of 16 February 2018 is dismissed in so far as the application seeks an order for summary judgment.

2.The costs of the respondent’s interlocutory application are reserved.

3.The proceeding be listed for a case management conference at 3 pm on Friday 10 August 2018

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

REASONS FOR JUDGMENT

BROMBERG J:

1. The proceeding concerns claims made by the applicant (“Ms Hutchinson”) against the respondent (“Comcare”) under the Public Interest Disclosure Act 2013 (Cth) (“PID Act”).

2. Ms Hutchinson is a former employee of Comcare.  In February 2011, she submitted a workers’ compensation claim pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”).  A compensable claim was accepted for “Major Depression – single episode” on 25 July 2011 following the reconsideration of an earlier rejection of that claim on 23 May 2011.

3. Since 30 January 2014 Ms Hutchinson has lodged purported public interest disclosures (“PIDs”) pursuant to the PID Act. Her first PID, dated 30 January 2014, related to Comcare’s decision dated 20 January 2014 not to take action to investigate complaints she had made to Comcare in December…