Hutchinson v Comcare (No 4)

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FEDERAL COURT OF AUSTRALIA

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

File number: WAD 404 of 2016
Judge: BROMBERG J
Date of judgment: 25 July 2019
Catchwords: HUMAN RIGHTS – Public Interest Disclosure Act 2013 (Cth) (“PID Act”), s 13 protection from reprisals –discussion of requisite elements of s 13 of the PID Act –
whether the requisite elements for a reprisal under s 13 of the PID Act are established in relation to complaints of reprisal action taken – whether the rule in Jones v Dunkel is available – application dismissed.  
Legislation:

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

Public Interest Disclosure Act 2013 (Cth) ss 6, 7(1)(a), 7(1)(b), 13, 14(1), 26

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 71

Cases cited:

Hutchinson v Comcare [2014] FCA 1300

Hutchinson v Comcare [2017] FCA 136

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

Hutchinson v Comcare (No 2) [2018] FCA 2005

Jones v Dunkel (1959) 101 CLR 298

Kordan Pty Limited v Commissioner of Taxation [2000] FCA 1807

Marku v Minister for Justice (2015) 237 FCR 580
Date of hearing: 17 December 2018
Registry: Western Australia
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 218
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:

25 JULY 2019

THE COURT ORDERS THAT:

1.The Applicant’s application is dismissed.

2.Unless an application for a contrary order is made within 7 days, the Applicant pay the Respondent’s costs of the proceeding.

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


REASONS FOR JUDGMENT

BROMBERG:

  1. This proceeding initially raised claims reliant upon the Public Service Act 1999 (Cth), the Public Governance, Performance and Accountability Act 2013 (Cth) and the Public Interest Disclosure Act 2013 (Cth) (“PID Act”).  All of the claims made by the applicant (“Ms Hutchinson”) other than under the PID Act were conceded by her to have been improperly instituted. Leave was given to Ms Hutchinson to make the necessary amendments to her Further Amended Originating Application. That appears not to have been done. Nevertheless, the proceeding has been conducted on the basis that Ms Hutchinson has abandoned all of her claims other than those made under the PID Act. It is Ms Hutchinson’s claims under the PID Act which these reasons address.

  2. Ms Hutchinson is a former employee of the respondent (“Comcare”).  Ms Hutchinson holds deep-seated grievances about the way in which Comcare and over 20 of its employees treated her in relation to her employment and also in relation to workers’ compensation claims made by her as a result of injuries sustained in that employment.  There is a long and unfortunate history of litigation between Ms Hutchinson and Comcare as is…

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Details
Case
[2019] FCA 1133
Decision Date

CaseChat Overview and Summary

The case of Hutchinson v Comcare (No 4) was heard before the Federal Circuit Court of Australia, where Ms Hutchinson sought relief under the Public Interest Disclosure Act 2013 (Cth) (PID Act). She alleged that reprisals had been taken against her by Comcare, an Australian Government agency, following her making public interest disclosures. The court had to determine whether the elements required to establish a reprisal under section 13 of the PID Act were satisfied and whether the rule in Jones v Dunkel applied to allow the consideration of certain evidence.

The primary legal issues the court had to resolve were whether Ms Hutchinson had established the necessary elements of a reprisal under section 13 of the PID Act, and whether the evidence she presented could be considered under the rule in Jones v Dunkel. Ms Hutchinson needed to prove that Comcare or its employees had taken reprisal action against her due to her public interest disclosures, and that this action constituted a detriment as defined by the Act. Comcare argued that Ms Hutchinson's claims failed because she did not establish the requisite elements of a reprisal and had not met the burden of proof.

The court found that Ms Hutchinson had not sufficiently demonstrated the requisite elements for a reprisal under section 13 of the PID Act. Although Ms Hutchinson had alleged that reprisals were taken against her, there was insufficient evidence to establish that the actions in question were motivated by the requisite belief or suspicion of a public interest disclosure. Furthermore, the court ruled that the rule in Jones v Dunkel was not applicable to the case, and therefore, certain evidence could not be considered. The court concluded that Ms Hutchinson had failed to discharge the legal onus of proof, resulting in the dismissal of her claims. The court ordered that Ms Hutchinson's application be dismissed and that she pay Comcare's costs of the proceeding, unless an application for a contrary order was made within seven days.

Orders

Orders of the court

1. The Applicant’s application is dismissed.

2. Unless an application for a contrary order is made within 7 days, the Applicant pay the Respondent’s costs of the proceeding.

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

Full text does not contain this section.

Decision

Reasons for decision

It has not been necessary for me to address the very extensive list of objections to Ms Hutchinson’s evidence filed by Comcare to which Ms Hutchinson made no response. Broadly, Comcare objected to the admissibility of the evidence filed by Ms Hutchinson on the basis that the evidence was not relevant, was inadmissible hearsay, or consisted of assertions, speculation, conclusions, argument or submissions. There can be no doubt that even on a generous approach to Ms Hutchinson much of the evidence she filed is inadmissible. I need not, however, formally determine each of the objections taken by Comcare. I will do so only and in so far as it is necessary to deal with the evidence specifically relied upon by Ms Hutchinson in support of any particular finding sought by her. Ms Brown’s Decision of 30 January 2014 Doing the best I can to understand this alleged reprisal, it seems that Ms Hutchinson asserts that an employee of Comcare, Gaby Medley Brown, made a decision on 30 January 2014 not to take any action in relation to the December 2013 complaints. Ms Hutchinson alleges that Ms Brown “refused to investigate the matters I had raised as a deliberate reprisal and to cause detriment to me while protecting [herself] and Comcare from the exposure that my ‘whistleblower’ complaints would likely bring to the Agency”. It is not clear what detrimental conduct Ms Hutchinson alleges in relation to this alleged reprisal. Section 13(2) defines “detriment” to include “any disadvantage”. I will assume, in Ms Hutchinson’s favour, without deciding, that a failure by Ms Brown to deal with the December 2013 complaints is capable of having caused Ms Hutchinson detriment. I will also assume in Ms Hutchinson’s favour although I do not accept it to be so, that there was a failure by Ms Brown to deal with the December 2013 complaints. On those assumptions, Ms Brown’s decision of 30 January 2014 may be regarded as the detrimental conduct. However, there is no basis upon which I could find that the second and third requisite elements of s 13 of the PID Act have been established. There is no direct evidence that Ms Brown had the PID belief or was motivated by the prohibited reason. The absence of even an allegation to that effect, to which Comcare pointed to in its submission, was not addressed in Ms Hutchinson’s reply. Further, I note that the detrimental conduct alleged predates the making of the First Purported PID on 30 January 2014. Ms Hutchinson did however contend, in relation to each of the alleged reprisals, that the premise under which the proceeding has been brought is that all of the employees accused of taking reprisal action against her were motivated to act for a prohibited reason. Even if I were to accept that an implicit assertion was made by Ms Hutchinson that, in making the decision of 30 January 2014, Ms Brown held the PID belief and was motivated by the prohibited reason, Ms Hutchinson’s submissions do not address why I should find that Ms Brown had that belief or was so motivated. The existence of the PID belief and whether Ms Brown was motivated by the prohibited reason are matters to which only Ms Brown could give direct evidence. Ms Brown was not called.

Ratio Decidendi

Legal Principle Established

Further, even if one of more of the Purported PIDs does constitute a PID, Comcare asserts that Ms Hutchinson has not demonstrated, to the requisite standard of proof, that Comcare or its employees have taken “reprisal” action against her within the meaning of s 13 of the PID Act. Comcare seeks that Ms Hutchinson’s claims for relief be dismissed. CONSIDERATION Ms Hutchinson bears the legal onus of proof on all issues. There is no provision in the PID Act which reverses her onus as the applicant. Her failure to discharge that onus and thereby prove her case is the reason why I conclude that her claims fail and that this proceeding must be dismissed. Comcare sought to persuade me that I should dismiss the proceeding by reason of what it referred to as a “threshold” issue. As indicated already, Comcare contended that neither of the purported PIDs made by Ms Hutchinson was a “public interest disclosure” within the meaning of s 26 of the PID Act. It was contended that Ms Hutchinson’s claims fail at that initial hurdle and require no further consideration. I disagree. The contention proceeds upon a misconception of what Ms Hutchinson needs to prove in relation to the claims made by her. That misconception will be apparent from the analysis I now turn to make as to what it is that Ms Hutchinson needs to prove. At the heart of the PID Act is the encouragement and facilitation of public interest disclosures made by public officials. So much is evident from object (b) in s 6 of the PID Act. As the related object (c) states, the PID Act intends that public officials who make public interest disclosures are supported and protected from “adverse consequences relating to the disclosures”. So much is also apparent from s 7(1) of the Act which in paragraph (a) states that the PID Act:provides a means for protecting public officials, and former public officials, from adverse consequences of disclosing information that, in the public interest, should be disclosed; The “adverse consequences” referred to are what the PID Act later identifies and defines as “a reprisal”. As the overview given by s 7 states, Part 2 of the PID Act provides for “offences and civil remedies for reprisals taken against disclosers”: s 7(2)(b). Relevantly to the claims made by Ms Hutchinson, s 14(1) of the PID Act provides that where this Court is satisfied that a respondent has taken “a reprisal against the applicant”, the Court may make orders requiring the respondent to “compensate the applicant for loss, damage or injury as a result of the reprisal…”: s 14(1)(a). What constitutes “taking a reprisal” is addressed by s 13. That term is referred to in s 8 which provides that it has the meaning given by s 13. It is necessary to set out the terms of s 13:13 What constitutes taking a reprisal(1)A person (the first person) takes a reprisal against another person (the second person) if:(a)the first person causes (by act or omission) any detriment to the second person; and(b)when the act or omission occurs, the first person believes or suspects that the second person or any other person made, may have made or proposes to make a public interest disclosure; and(c)that belief or suspicion is the reason, or part of the reason, for the act or omission.(2)Detriment includes any disadvantage, including (without limitation) any of the following:(a) dismissal of an employee;(b) injury of an employee in his or her employment;(c) alteration of an employee’s position to his or her detriment;(d)discrimination between an employee and other employees of the same employer.(3)Despite subsection (1), a person does not take a reprisal against another person to the extent that the person takes administrative action that is reasonable to protect the other person from detriment.