Kalsbeek v Commonwealth of Australia - [2021] WADC 34

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   KALSBEEK -v- COMMONWEALTH OF AUSTRALIA [2021] WADC 34
CORAM:   SHARP DCJ
HEARD:   19 - 28 OCTOBER 2020
DELIVERED          :   16 APRIL 2021
FILE NO/S:   CIV 3841 of 2017
BETWEEN:   ROBERT KALSBEEK
Plaintiff
AND
COMMONWEALTH OF AUSTRALIA
Defendant

Catchwords:

Disability support pension - Cancellation and reinstatement - Whether duty of care is owed - Whether breach of duty of care - Misfeasance in public office - Damages

Legislation:

Civil Liability Act 2002 (WA)
Limitation Act 2005 (WA)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	In person
Defendant	:	Ms J L W Henderson

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	Minter Ellison

Case(s) referred to in decision(s):

Coffey v Secretary, Department of Social Security [1999] FCA 375
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Jones v Department of Employment [1989] QB 1
Kalsbeek v Commonwealth of Australia [2018] WADC 79
Kalsbeek v Commonwealth of Australia [2019] WADC 49
Kalsbeek v Max Solutions Pty Ltd [2018] WADC 183
Northern Territory of Australia v Mengel (1995) 185 CLR 307
Scott v Pedler [2004] FCAFC 67; (2004) 80 ALD 283
Scott v Secretary, Department of Social Security [2000] FCA 1241; (2000) 65 ALD 79
Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562
Upton v Centrelink [2009] WADC 116
Wang v Secretary, Department of Employment and Workplace Relations [2006] FCA 898

SHARP DCJ:

Introduction

In 1997, the plaintiff (Mr Kalsbeek) was involved in a workplace accident and suffered a long term injury to his back. In 2001 he was assessed by the defendant as qualified for, and was paid, a disability support pension (DSP). Mr Kalsbeek continued to receive the DSP until around February 2009, when he moved overseas to live in China and Vietnam.
During his absence, and after the expiry of the relevant 'portability' period, his DSP was cancelled pursuant to the provisions of the Social Security Act 1991 (Cth) (SS Act).
In October 2013, Mr Kalsbeek returned to live in Australia. On 16 October 2013, he contacted the defendant, through Centrelink, seeking reinstatement of his DSP benefits. Centrelink is a government service delivery agency which is responsible for administration of the SS Act and the Social Security (Administration) Act 1999 (Cth) (SSA Act). Mr Kalsbeek in a letter dated 4 November 2013 was invited to attend a job capacity assessment (JCA) in person at Rockhampton Centrelink, Queensland. That JCA took place on 13 November 2013. What Mr Kalsbeek alleges happened at the JCA on 13 November 2013 is of significance in this proceeding.
Mr Kalsbeek's claim for a DSP was rejected on 19 November 2013. Instead, he was assessed as unemployed rather than disabled. A second JCA was then conducted at the request of Mr Kalsbeek, but his claim for a DSP was again rejected.
Mr Kalsbeek was then referred to Max Solutions Pty Ltd (Max Solutions), a service provider engaged by the defendant, for work training.
In August 2014, Mr Kalsbeek applied under Pt IV of the SSA Act to the Social Security Appeals Tribunal (SSAT) for a review of Centrelink's decision that he was not entitled to be paid a DSP.
The SSAT set aside the decision under review and ordered that Mr Kalsbeek was qualified for a DSP at the date of his claim. The SSAT also ordered that he should be paid arrears from 22 October 2013.
On 19 October 2017, Mr Kalsbeek commenced proceedings against the defendant. A writ was issued, generally indorsed with a claim for damages from the defendant for personal injury. The indorsement states that Mr Kalsbeek was 'deliberately and wrongly assessed as Unemployed and not Disabled anymore', resulting in him being forced to attend Max Solutions for 'intensive work training'.

Mr Kalsbeek's claim

Mr Kalsbeek's statement of claim, in its final form, sets out that from 1997 until he left Australia in 2009 to live overseas, he was paid a DSP based on a '30 points disability rating being 20 points spinal for a diagnosed and permanent spinal condition, plus 10 Centrelink disability points for a diagnosed and treated Post Traumatic Stress Disorder … and Depression'.
In or around 13 November 2013, on his return to Australia, he attended a Centrelink interview in Rockhampton, Queensland, the purpose of which he understood to be to 'update some paperwork'. However, he alleges that he was then forced to perform several physical exercises and to demonstrate his ability to move around the interview room while performing certain physical tasks. He says that during this interview there was no medical supervision, guidance or support for him.
He further alleges that when he was unable to perform or complete these tasks due to his spinal injury, he was told by the psychologist conducting the interview that if he did not fully participate in the assessment as required, his DSP would be denied. He says that on several occasions during the assessment and physical examination, which he alleges was also conducted, he complained about his back pain and that the 'forced exercises' were aggravating his pain.
He says that on several occasions during the interview, he had challenged the psychologist to contact his doctor. He maintains that the psychologist had access to his doctor's medical report which confirmed that he 'was under a medical exemption' and that he 'has pain on movement, can't sit or stand for long periods of time, and cannot sit half hour or prolonged periods of time while his spinal condition remains unchanged'.
He says that the psychologist refused to accept 'hard copy' medical reports.
He also says that the psychologist was 'recording the whole interview on her mobile phone, while constantly receiving text messages which would lead to more specific questions'.
The psychologist then concluded that Mr Kalsbeek's applicable disability rating should be reduced to 5 points.
The statement of claim contains the following paragraph:
according to the CCTV recording of the interview [Mr Kalsbeek] was observed and recorded as walking around, taking excessive prescription pain medication and was seen listening at the door to the angry and aggressive conversation between the assessing female psychologist and her male supervisor who had introduced himself to [Mr Kalsbeek], while [Mr Kalsbeek] was seen waving at the CCTV camera while lying on the floor of the interview room, doing stretching exercises as to elevate (sic) his increasingly chronic back pain and psychological distress.
(original emphasis)
Mr Kalsbeek says that after less than 30 minutes, he simply walked out of the interview room and 'was told that he was not going to get any Centrelink payment as the interview/assessment was not completed'.
Mr Kalsbeek alleges that the 'interviewing Centrelink female' was not the psychologist who wrote the initial assessment report containing the 5 point grading, 'hence the need to record the interview on her mobile phone'.
Mr Kalsbeek argues that the Centrelink psychologists breached their duty of care and their own legislative duties by deliberately refusing to consider 'the above PTSD and previous Centrelink grant of 10 Centrelink psychological disability points in either one of their [assessment reports]'.
Mr Kalsbeek says that the 'defective decisions and above inconveniences' were reasonably foreseeable and preventable. He therefore claims:
•damages of $50,000;
•$100,000 for foreseeable and preventable psychological suffering; and
•$100,000 'for the deliberate deletion of medical evidence which resulted in Mr Kalsbeek being referred to Max Solutions for work training'.
It is my understanding of Mr Kalsbeek's statement of claim that the basis of the claim against the defendant as pleaded is this:
1.The person conducting the interview and the JCA on 13 November 2013, whom we now know was Ms Bronwyn Chin, negligently:
(a)required Mr Kalsbeek to perform physical exercises; and
(b)determined, wrongly in Mr Kalsbeek's opinion, that Mr Kalsbeek was not entitled to a DSP and instead referred him to Disability Management Services (DMS) for assistance with gaining employment suitable to his capacity.
2.The negligence of Ms Chin with respect to the physical exercises which she asked him to undertake exacerbated Mr Kalbeek's spinal injuries and caused compensable loss.
3.The negligence of Ms Chin with respect to her erroneous determination caused an aggravation of Mr Kalsbeek's PTSD and depression which resulted in compensable loss.
Support for this conclusion as to what the relevant claim is can be found in Mr Kalsbeek's opening submissions when he said at ts 549:
The order is about two specific issues. The one issue is the interview with psych Chin. The second one is the deliberate wrong referral to Max Employment and not disability. Okay? So that is the order.

Proceedings in the District Court

Pre-trial hearings

There were numerous pre-trial hearings, including those on 21 August 2018 before Deputy Registrar Hewitt, on 1 February 2019 before Principal Registrar Melville, on 13 July 2020 before Judge Braddock, on 18 and 28 August 2020 and on 8 September 2020 before Judge Gething and on 12 October 2020 before Judge Troy.

Statement of claim

Mr Kalsbeek's original statement of claim, which was filed on 20 October 2017, was ordered to be struck out on 21 August 2018. However, Deputy Registrar Hewitt gave Mr Kalsbeek leave to file an amended statement of claim, confined to a claim for psychological and physical harm caused by inappropriate physical examination and referrals in the course of reassessing his entitlement to a DSP. The amended statement of claim was filed on 27 September 2018 and a re‑amended statement of claim was filed on 12 November 2018.

Other proceedings

These reasons relate to CIV 3841 of 2017. For completeness, I should mention that Mr Kalsbeek in 2017 also commenced two other sets of proceedings in this court in relation to his DSP.
A writ of summons and claim was issued in December 2017 (CIV 4267 of 2017) and was dismissed after trial: Kalsbeek v Max Solutions Pty Ltd [2018] WADC 183 (Max).
Another writ of summons and claim, also issued in December 2017 (CIV 4462 of 2017), this one against the defendant, was struck out on the basis that the statement of claim was deficient and incapable of cure: Kalsbeek v Commonwealth of Australia [2018] WADC 79.

Application in CIV 3841 of 2017 by defendant for summary judgement

I should also mention that the defendant brought an application for summary judgment against Mr Kalsbeek by chamber summons filed 28 November 2018.
The basis of that application, in short, was that the defendant had a good defence under s 14 of the Limitation Act 2005 (WA) (Limitation Act) to the action brought by Mr Kalsbeek, namely that an action cannot be commenced for personal injuries if three years from the date it accrues has elapsed.
The defendant said that Mr Kalsbeek's statement of claim demonstrates that Mr Kalsbeek's cause of action for personal injury accrued on or about 13 November 2013. Accordingly the writ should have been issued before, on or about 13 November 2016. In fact, the writ was issued on 19 October 2017.
On 21 December 2018 the defendant was given leave to bring the application for summary judgment and the application was then adjourned to a special appointment. Mr Kalsbeek was ordered to bring any application under Pt 3 of the Limitation Act by 16 January 2019. This was not done.
The Deputy Registrar decided that it was unclear exactly when the cause of action actually arose and the application was dismissed: Kalsbeek v Commonwealth of Australia [2019] WADC 49.
The defendant raised this issue again on the first day of the trial in CIV 3841 of 2017. However, the court's position was still as found by the Deputy Registrar and the trial proceeded. In light of the court's decision in this matter it is unnecessary to consider that issue further.

The trial in CIV 3841 of 2017

The trial in CIV 3841 of 2017 commenced on 19 October 2020 and ran for a period of eight days. The court's decision was then reserved. This is my decision and the reasons for it.

The court's duty to unrepresented litigants

Mr Kalsbeek is an unrepresented litigant.
The court must exercise care to ensure that an arguable case of an unrepresented litigant is not dismissed simply because it is not immediately discernible. Some allowance must also be made in respect of the way that litigant has expressed his case in his pleadings.
The Court of Appeal said in Glew v Frank Jasper Pty Ltd [2010] WASCA 87 (Glew) [10]:
Due allowance must, of course, be made for the fact that Mr Glew is unrepresented. A court should always be careful to see that the rights of an unrepresented litigant have not been 'obfuscated by their own advocacy': Neil v Nott [1994] HCA 23 [5]; (1994) 121 ALR 148, 150. It must be alert to the possibility that beneath inadequately expressed and often irrelevant material there may lurk an arguable case. And some leniency may be required in relation to compliance with the rules. But in the end the allowances that can be made for a litigant in person are necessarily limited, both as a matter of fairness to the other party, who must be adequately informed of the case they have to meet, and because the provision of acceptable grounds of appeal is fundamental to the exercise of the appellate function by the court.
Conducting the trial was not without its challenges. I accept that there were occasions during the trial when I may have allowed Mr Kalsbeek more leniency that perhaps the Court of Appeal in Glew was contemplating. However, I do not consider that there was any resulting prejudice to the defendant.
I should say that Mr Kalsbeek did not acknowledge or appear to understand the allowances made to him. Even a cursory glance through the transcript of the proceeding discloses that Mr Kalsbeek made little or no attempt to veil his contempt for the court and its processes, for me, and for counsel for the defendant and her instructors.
I had to constantly remind Mr Kalsbeek not to interrupt me or counsel for the defendant, eventually to the point that he was even interrupting me while I was giving him those reminders. He also had to be reminded on numerous occasions of the difference between the evidence which he gave under oath and the statements made by him from the bar table. He spoke loudly, almost to the level of shouting, when addressing the court or witnesses, which he explained was due to a hearing loss. Also, due to his back condition, he alternated throughout the trial between standing (which involved him pacing around) and sitting. He had to be warned a number of times about getting too close physically to counsel for the defendant or, when in the witness box, my own staff.
A number of his witnesses clearly had no forewarning about what evidence he was seeking to adduce.

Facts not in dispute

The facts which follow are not in dispute and I make these findings of fact.
From around 1997 until 2001, Mr Kalsbeek lived in Queensland. In 1997 he injured his back and in 1998 he applied for a DSP.
The medical evidence supporting that application comprised a CT scan of Mr Kalsbeek's lumbar spine, along with a report from a Dr Alan Boles (Exhibit 57). The scan is not in evidence.
Mr Kalsbeek asked another doctor, Dr Hart to complete a Centrelink medical certificate. Following an examination of Mr Kalsbeek on 29 December 1997, Dr Hart recorded a diagnosis of 'degenerative L5/S1 disc': Exhibit 29. Dr Hart certified Mr Kalsbeek as unfit for work until 29 January 1998.
Mr Kalsbeek then on or around 14 January 1998 consulted with a Dr Hood. Dr Hood considered that Mr Kalsbeek was fit for light sedentary work but noted that Mr Kalsbeek was reluctant to consider any desk job: Exhibit 35.
Subsequently, on 20 January 1998, Dr Hart again examined Mr Kalsbeek and stated that Mr Kalsbeek had lower back pain and stiffness and was unable to stand or sit for prolonged periods. He said that this condition was likely to persist for at least two years. Mr Kalsbeek was certified as temporarily unfit to work until 17 February 1998: Exhibit 30.
On 23 January 1998, Mr Kalsbeek then saw a Dr Maxwell who confirmed that Mr Kalsbeek was unable to lift heavy weights and was unable to concentrate because of pain: Exhibit 37.
Mr Kalsbeek on 28 January 1998 was then examined by Ms Kathy Fordham, a Centrelink occupational therapist, and based on her report (Exhibit 39), which was subsequently supported by Dr Hood, Mr Kalsbeek was informed that his application for a DSP was rejected: Exhibit 41.
In or around 2000, Mr Kalsbeek was involved in WorkCover proceedings. In the course of those proceedings, Mr Kalsbeek consulted a Dr Michael John, a clinical psychologist, who prepared a report dated 18 April 2000 for Mr Kalsbeek's then solicitors: Exhibit 67.
In his report, Dr John said that he was of the opinion that Mr Kalsbeek was suffering from two disorders. The first being a 'pain disorder associated with both psychological factors and a medical condition', and the second being an 'adjustment disorder with depressed mood'. Dr John considered that Mr Kalsbeek's pain disorder was 'severe and chronic in that it causes substantial impairment to his occupational and social functioning'. With respect to his depression, he felt it 'best seen to be moderately severe'.
In October 2000, Mr Kalsbeek made another application for a DSP. Mr Kalsbeek consulted with other doctors and in 2001 his application was accepted: Exhibit 5.
Mr Kalsbeek received a DSP from 2001 until he left Australia in 2009.
There are no agreed facts as to what Mr Kalsbeek did between 2009 and his return to Australia in 2013. However, Mr Kalsbeek's former wife, Cuc le Thi gave some insight into that portion of Mr Kalsbeek's life. She gave evidence on affidavit (Exhibit 2) to the effect that she and Mr Kalsbeek met in Vietnam during that time and lived together for around 2 years. She said that they sometimes travelled together, taking short holidays to Thailand, Cambodia and Malaysia. She said that Mr Kalsbeek had told her that he was studying law and psychology.
Ms Cuc's evidence is uncontroversial and was not contradicted and I accept it.
As I mentioned earlier in these reasons, Mr Kalsbeek's DSP was cancelled after a period following his departure from Australia pursuant to the provisions of the SS Act. When he returned to Australia in October 2013, he contacted Centrelink with the intention of reinstating his DSP.

On 22 October 2013, Mr Kalsbeek submitted a formal claim for a DSP. He was granted a Newstart Allowance pending assessment of his claim: Max [18]. He included with his claim a report from Dr Donna McClymont dated 21 October 2013: Exhibit 11.
Dr McClymont gave evidence at the trial. She told the court that prior to October 2013 she had last seen Mr Kalsbeek in 2008, but she did not have any medical records from that previous consultation. She had not seen any of the other medical reports about Mr Kalsbeek and in particular she had not seen the report from Dr John: ts 885, ts 863, ts 902 - ts 903.
The report from Dr McClymont was in a Centrelink form and was requested by Mr Kalsbeek. It stated that Mr Kalsbeek suffers from two conditions, a work injury which she described as 'confirmed' and chronic fatigue/depression which she described as 'presumptive'.
Centrelink wrote to Mr Kalsbeek on 4 November 2013, inviting him to attend a JCA: Exhibit 53.
On 13 November 2013, Mr Kalsbeek attended Rockhampton Centrelink, Queensland for a JCA before a Job Capacity Assessor, Ms Bronwyn Chin, a registered psychologist. Following that assessment but prior to finalising her report, Ms Chin referred his claim to a registered occupational therapist, Ms Bliss, for her consideration.

A JCA report was subsequently prepared by Ms Chin and signed by her and Ms Bliss: Exhibit 24. The report notes that Mr Kalsbeek 'has minimal motivation to work and no work goals as he does not feel he is capable of working in any capacity'. The report recommended a deferred referral to disability management services to be actioned on 13 May 2014. The recommendation was to assist Mr Kalsbeek with gaining employment suitable to his capacity following a period of exemption whilst he pursues further diagnostic investigations and treatment of his chronic fatigue/depression.
The report allocated ratings under Table 4 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011 (Impairment Tables) as current in 2013 (2011 Table 4). Impairment Table 4 sets out and describes what it is that comprises disability ratings of, respectively, 1, 5, 10, 20 and 30.
Ms Chin allocated 5 points to Mr Kalsbeek's spinal injury, but did not allocate any points to Mr Kalsbeek's chronic fatigue/depression because it was not fully diagnosed, fully treated and fully stabilised (FDTS).
Mr Kalsbeek's claim for payment of DSP was rejected on 19 November 2013: Exhibit 54.
On 21 January 2014, Mr Kalsbeek sought a review of that decision: Exhibit 61.
In response to that request, on 17 February 2014 Mr Kalsbeek was referred for a further JCA. Unlike the JCA on 13 November 2013, which was face‑to‑face, this assessment was done on the file by Ms Nelly Yaolan Liem, a psychologist and Ms Michelle Carroll, an occupational therapist: Exhibit 26. Ms Liem and Ms Carroll both gave evidence at the trial. They agreed with the opinion of Ms Chin and Ms Bliss, except with less hours capacity for work per week. They allocated 10 points for Mr Kalsbeek's spinal injury and recommended that he be referred for employment service with 'DES - Disability Management Service'.
On 20 June 2014, Ms Shari Louise Oxenham, an Authorised Review Officer, was appointed to conduct Mr Kalsbeek's review. Her written testimony is in her witness statement dated 21 October 2020 (Exhibit 48) and she was cross-examined.
She does not recall the review in Mr Kalsbeek's case, other than 'vaguely recall[ing] speaking about a review for over an hour by telephone to someone who lived in a caravan park and had back issues'. She also 'vaguely recall[ed] speaking to a customer about the ratings assigned under the impairment tables and that they agreed they did not have a 20 point impairment rating'. She said that she thinks this may have been Mr Kalsbeek but she is not sure: Exhibit 48 par 51.
As part of her review process, she sometimes (and in Mr Kalsbeek's case she did so) refers the matter to the Health Professional Advisory Unit (HPAU) for an opinion. In this case, the HPAU published a report on 15 July 2014, supporting the JCA report from Ms Liem and Ms Carroll. Specifically, HPAU's opinion was that Mr Kalsbeek did not qualify for an impairment rating for chronic fatigue/depression and that his overall impairment was 10 points.
Accordingly, on 23 July 2014, Ms Oxenham affirmed the rejection of Mr Kalsbeek's DSP claim.
On 19 August 2014, Mr Kalsbeek applied to the SSAT for a review of the decision by Centrelink that Mr Kalsbeek was not entitled to be paid a DSP.
The SSAT posted its judgment on 29 October 2014: [2014/PO72140]. It concluded that, on a reconsideration of the documentary evidence and medical opinions, it was satisfied that Mr Kalsbeek did in fact meet the medical qualification requirements for a DSP.
Accordingly, the SSAT set aside the decision under review and in substitution decided that Mr Kalsbeek was medically qualified for a DSP at the date of the claim and ordered that the decision have effect from 22 October 2013. Mr Kalsbeek was paid $9,874 in arrears for the DSP that the SSAT determined he was entitled to receive as a result of his initial application on 22 October 2013: Max [28].
On 27 November 2014, Mr Kalsbeek lodged a 'compensation for detriment caused by defective administration claim' with the Department of Human Services: Max [29]. This was on the basis that the department had made errors in the assessment of Mr Kalsbeek's DSP claim and other reports. This claim was investigated by the department and it was determined that Mr Kalsbeek had not suffered a quantifiable financial loss.
At the request of Mr Kalsbeek, that decision was reviewed by an authorised officer of the Customer Compensation Team, Department of Human Services. On 11 August 2015, the Customer Compensation Team held that Mr Kalsbeek should be paid $239.40 compensation for unsubstantiated travel costs as a result of attending Max Solutions on seven occasions: Max [30].

Issues arising for determination

I agree with the defendant (defendant's closing submissions par 157) that, in order to succeed in his claim, Mr Kalsbeek must prove the following elements:
(a)that the defendant owed him a duty of care;
(b)that the defendant breached that duty by failing to take reasonable care;
(c)that a breach of the duty of care caused compensable injury to Mr Kalsbeek; and
(d)that the injury suffered is not too remote a consequence of the breach.

Witness evidence

Evidence of Mr Kalsbeek

Mr Kalsbeek gave evidence at the trial. It took up a great deal of time. Scheduling difficulties meant that Mr Kalsbeek's evidence‑in‑chief and cross‑examination frequently had to be interrupted to allow for examination and cross-examination of both Mr Kalsbeek's witnesses and also the defendant's witnesses.
As I have mentioned earlier in these reasons, in his amended statement of claim, Mr Kalsbeek, in connection with the interview with Ms Chin on 13 November 2013, alleged that:
(a)he was forced to 'perform several physical exercises and demonstrate his ability to get around the interview room while performing certain physical tasks';
(b)he was 'repeatedly told that if he did not fully participated (sic) as required' by Ms Chin, his Centrelink payment would be denied;
(c)the 'assessing psychologists refused to accept the references to the "hard copy" paper medical evidence available from either [Mr Kalsbeek] or his treating GP' which he says included 'several spinal x‑rays, CT scans, of his previous 20 points spinal and two specialist psych reports, referring to the abovementioned 10 points psychologist assessed PTSD and a diagnosed Depression';
(d)Ms Chin recorded the interview on her mobile telephone and was 'constantly receiving text messages which would lead to more specific questions' which he regarded as 'coaching'.
(e)Ms Chin could not have seen Mr Kalsbeek sit for 40 minutes because:
(i)the interview was interrupted by a person described by Mr Kalsbeek as Ms Chin's male supervisor, Ms Chin left the room with him and in Ms Chin's absence Mr Kalsbeek stretched his back; ts 652;
(ii)'after not more than 30 minutes, [Mr Kalsbeek] simply walked out of the Centrelink interview room and was told that he was not going to get any Centrelink payment as the interview/assessment was not completed; and
(iii)the total interview was not more than 30 minutes and there was a break in between of more than 10 minutes.
Mr Kalsbeek's evidence about what occurred at the JCA on 13 November 2013 was as follows:
(a)Ms Chin told him that there was no evidence of him ever having had a psychological injury; ts 621.
(b)Ms Chin told him that the psychologist's report from Dr John does not mention severe depression; ts 622.
(c)He asked Ms Chin what her job was and she refused to answer; ts 623.
(d)She never identified herself as a psychologist; ts 638.
(e)He asked her what her name was and she refused to tell him. He thought she fiddled with her name badge but he is not 100% sure; ts 639.
(f)There was an altercation between himself and Ms Chin; ts 621.
(g)Ms Chin:
(i)psychoanalysed him;
(ii)hypnotised him; and
(iii)was under the influence of drugs during the interview; ts 1,753.
It is apparent that Mr Kalsbeek was surprised that the JCA on 13 November 2013 was conducted by a psychologist and not, as he had expected, an occupational therapist: ts 1,910 - ts 1,911. He said that 'if [the defendant] had sent me to a doctor or an occupational therapist none of this would have happened': ts 1,917. He said at ts 1,861 that he:
… thought [Ms Chin] was pretending to be an occupational therapist … if an occupational therapist would've asked me that, no problem. If a doctor would've asked me that, no problem, I've done it in the past. But if I am already convinced that she is not one of those, then I'm having a real problem. And that was what my issue was. I already knew, from whatever military intelligence, that [Ms Chin] was not genuinely telling me. And when I asked her, and she can't remember, I asked her, 'are you a doctor? Are you an occupational therapist?' She did not answer.

Evidence of Ms Chin

Ms Chin's witness statement is dated 22 October 2020 (Exhibit 50) and she was cross‑examined.
In her evidence-in-chief, Ms Chin says that she completed her Bachelor of Psychology degree with Honours at Central Queensland University in 2003 and in or around mid-2006, she began work at Centrelink as an Assessor. During that time, she completed a 2 year internship, following which she became a registered psychologist with the Queensland Board of the Psychology Board of Australia in 2008. She was at the relevant time and still is employed by Services Australia as an Assessor.
Ms Chin says that she is authorised to consider and interpret medical evidence with reference to the Impairment Tables. However, she has not received any special training and does not hold any licenses or qualifications that specifically relate to spinal medical conditions.
She does not recall conducting Mr Kalsbeek's JCA on 13 November 2013. However, having reviewed the 13 November 2013 JCA report she does not dispute that she assessed Mr Kalsbeek and that she wrote that report.
First speaking generally, she says that during a JCA, she considers a customer's eligibility for DSP by reviewing their medical evidence, their self-reports and observations of her own. She then assesses a customer's current functional ability against the Impairment Tables.
A customer can only qualify for an impartment rating if their medical condition is FDTS.
To be eligible for DSP, a customer needs to be assessed as having 20 or more impairment points, have a continuing inability to work, and undertake a program of support.
In around 2013, Ms Chin's standard practice was to consider primarily the medical evidence that a customer provided prior to or at the JCA. She believes at that time, records were in hard copy. She would customarily print off and review a customer's medical evidence the day prior, or morning of, the JCA.
In 2013, it was the responsibility of the customer to provide a report from their treating doctor together with their application. Centrelink provided a treating doctor report form to customers applying for DSP which contained instructions for the customer and information for the doctor to complete the report. Ms Chin says that this is no longer the standard practice and now customers need to provide their medical records.
A treating doctor's report customarily provides all the information that Ms Chin needs to make an assessment as doctors are required to respond to questions that specifically address the functional eligibility criterion, including treatment details and the duration that a condition is expected to persist.
If a treating doctor's report does not contain enough information, it was then standard practice to make two attempts to contact the doctor and request more information prior to submitting the report.
There was and remains no obligation on assessors to consider any other medical information apart from the information the customer provides.
A customer's historical medical records that are older than 2 years are generally not considered to accurately reflect the customer's current symptoms or current functional ability and therefore such records will not assist in making an assessment of the customer's impairment rating.
If historical medical evidence is provided, Ms Chin will consider it as an indication of past treatment received by a customer.
A JCA is attended by a customer and an assessor. Customers may bring a support person if they wish. If another person does attend a JCA, Ms Chin says that she would usually include a comment of that fact and the name of the support person in the JCA report.
In Ms Chin's view, it would be very uncommon for a JCA to be interrupted by another Centrelink employee.
Ms Chin says that she occasionally may be required to leave the assessment room for short periods of time, for example to photocopy documents.
For a JCA, in addition to relying on medical evidence, Ms Chin also takes into account her own observations of a customer's functional ability to ensure they are consistent with the medical evidence and with the customer's own self-reports.
Any observations made in her JCA reports are observations made by her during the assessment. She generally would not note any observations from when the customer is outside the assessment room. She would also not note any observations if she were not in the assessment room.
Ms Chin says that she has never conducted a physical examination of a customer during a JCA nor has she ever asked a customer to perform physical exercises in a JCA. She says that the JCA does not require an active examination and she would not ask a customer to perform any physical exercises in order to assess that customer's range of movement.
If a customer performed a particular physical task in a JCA, she may note the task in her report if it was relevant to the applicable Impairment Table. For example, if a customer reports they cannot use a pen to sign their name for an upper limb condition, but is observed to use one during the JCA, this would be noted.
Ms Chin's evidence is that she has never recorded a JCA on her mobile phone.
After a JCA is completed, Ms Chin may request further information from the customer or their treating doctor if, when writing her report, there are any inconsistencies between the customer's self‑reports and the medical evidence.
In or around 2013, if a customer provided her with additional information at a JCA, it was Ms Chin's standard practice to include the documents in the customer's file and make a note of the additional documents in her report.
As a psychologist employed as an assessor, Ms Chin is able to assess customers' spinal function by drawing from medical evidence, customer self-reports and her observations to apply an accurate impairment rating from the Spinal Function table. She does not consider conducting such an assessment and applying the associated Impairment Tables as particularly complex in comparison to the other types of categories of impairment.
In the case of a spinal condition being assessed, it is Ms Chin's usual practice to obtain a review of her assessment by another Centrelink assessor (a contributing assessor) specialised in that area.
She says that she would usually call, message or email a contributing assessor requesting their assistance. She would either provide a contributing assessor with the customer's reference number where they are then able to access her draft report on the Centrelink online system, or discuss the relevant factors via telephone.
In Mr Kalsbeek's case, Ms Chin says that although she does not recall contacting contributing assessor, Andrea Bliss, she has reviewed her correspondence from 13 November 2013 and based on that correspondence, she says that she asked Ms Bliss if she was available to contribute and Ms Bliss indicated that she was.
Following a JCA and any comments from any contributing assessor, Ms Chin's practice is to prepare a report with her overall recommendations of the customer's current functional ability.
If a customer does not meet the 20 point impairment rating necessary to obtain a DSP, she includes a referral for that person to an appropriate disability employment service.
Once she has issued her report, she says that she would have no reason to have any further contact with the customer or their case.
Turning then specifically to the interview and JCA on 13 November 2013, it is Ms Chin's understanding that Mr Kalsbeek contacted Centrelink on 16 October 2013 about his intention to claim a DSP. She also understands, from a letter from Centrelink to Mr Kalsbeek dated 16 October 2013, that he had been provided with a Disability Combined Claim form package.
According to a letter that was sent to Mr Kalsbeek from Centrelink on 4 November 2013, she assessed Mr Kalsbeek at the Rockhampton Centrelink office in North Rockhampton, Queensland at 9.30 am on 13 November 2013.
Consistent with Ms Chin's evidence that she does not recall Mr Kalsbeek's JCA on 13 November 2013, she does not recall the precise duration of the JCA. However, her report reflects that Mr Kalsbeek was observed to be sitting for 40 minutes. She says that this is consistent with the average duration of JCAs, being between 40 and 60 minutes.
She says that she would have reviewed the report provided by Dr McClymont, dated 21 October 2013, which is noted in her report.
Having recently considered Dr McClymont's report in preparation for giving her evidence, she considered it to be 'quite light on detail' but representative of the usual treating doctor reports she would receive from customers at that time.
On occasions where she has requested further information from a customer's treating doctor, it was and is her usual practice to note this in the references section of her report. She says that as there is no record of this in her report, she believes that she would have considered Dr McClymont's report to be sufficient at the time.
She says that it may have been possible for her to obtain Mr Kalsbeek's historical medical documents that were on his Centrelink file. However, she does not recall whether she did so.
She notes that Dr McClymont regarded Mr Kalsbeek's spinal impairment diagnosis as FDTS. She concludes that this would have been sufficient not to require any further information to consider Mr Kalsbeek's spinal injury a permanent condition.
She also notes that she documented in her report that:
[Mr Kalsbeek] indicates that he was able to bend forwards to pick up light objects from a desk or table but would be unable to pick things up from the floor... [Mr Kalsbeek] reports being unable to drive due to side effects of pain medication but was observed to sit in his chair for 40 minutes without noticeable discomfort.
She says that it is standard practice that she would take note of her observations, such as how long a customer might remain seated, during JCAs. She says that this is particularly so where the customer's impairment is in relation to a spinal injury, because it is directly relevant to the spinal function impairment table.
She says that if she had left the room during the JCA she would not have recorded that Mr Kalsbeek sat in his chair for 40 minutes as she would not have been able to observe it herself.
Her report indicates that she did not consider Mr Kalsbeek's psychological condition to be FDTS.
For a psychological impairment to be found 'fully diagnosed' she says that she would need to be satisfied that the impairment is supported by a psychiatrist or clinical psychologist.
She notes that Dr McClymont's report indicated that Mr Kalsbeek's diagnosis of chronic fatigue/depression was presumptive and indicated that there were no relevant specialist reports available.
She also notes from her report that she recommended a deferred referral to DMS to be actioned in six months' time. This was on the basis that Mr Kalsbeek may need a further period of time to re‑commence treatment of his psychological impairment because he indicated he planned to do so and to engage in further medical investigations in relation to chronic fatigue and sleep apnoea symptoms reported.

She further notes that her report records Mr Kalsbeek as being in Australia for 10 years, which is inconsistent with her observation that '[Mr Kalsbeek] has returned to Australia only 3 weeks ago after living in China and Vietnam for the past 5 years'.
She does not know why her report recorded Mr Kalsbeek as being in Australia for 10 years. However, she believes that the explanation might be that, because the section of a JCA report concerning how long a customer has resided in Australia is pre‑populated based on their records, this was something that she was not able to edit. In any event, she does not consider it to be an issue that would impact on his outcome.
Ms Chin remembered that Mr Kalsbeek had made a complaint about her on 18 June 2014: Exhibit 62. She said that she remembered that complaint because 'it's the only complaint I've had in 14 years … it does stand out a little bit': ts 1,752.
In her cross-examination, Ms Chin repeated that she did not recall the particular interview with Mr Kalsbeek and she made it clear that she was giving evidence based on what was in her JCA report and what her usual practice was: ts 1,696.
Ms Chin accepted that Mr Kalsbeek may have stormed out of the interview room. She said that there are occasions when customers do walk out of interviews and that it was a possibility this happened even though it was not recorded in her report: ts 1,751. However, she said that if Mr Kalsbeek had become very angry during the interview, it would have been recorded in her report: ts 1,787.
Ms Chin disputed that she asked Mr Kalsbeek to stand up and walk around the room. She said 'no we don't do that': ts 1,696. Ms Chin confirmed that if she had received any documentation from Mr Kalsbeek she would have referred to it in her report. On that basis and in the absence of any such reference, she did not believe that she had seen any X-rays given to her by Mr Kalsbeek: ts 1,702. The only medical report which she recalled was that of Dr McClymont: ts 1,738 ‑ 1,739. She considered Mr Kalsbeek's spinal condition to be FDTS on the basis of that report: ts 1,739.
Ms Chin said that if a claimant's historical medical records are older than two years, they are generally not an accurate reflection of the claimant's current symptom and it would be unlikely that they would assist in assessing an impairment rating: Exhibit 50 [22]. She did concede, however, that historical evidence could be helpful in establishing whether a condition was FDTS: ts 1,749.
Ms Chin confirmed that she wore a name badge at Centrelink and that she was confident that she would not have removed it to avoid Mr Kalsbeek seeing her name: ts 1,707. In any event, she observed that 'it doesn't have our surname on it': ts 1,707.
Having considered her report, Ms Chin confirmed that the only observation of Mr Kalsbeek that she made was him entering the interview room, sitting in his chair for 40 minutes without incident and then leaving the room: ts 1,712. She said that her conclusion reached in the JCA report was based on 'observations and just asking the customer questions': ts 1,713.
Ms Chin denied that she threw a piece of paper onto the floor and told Mr Kalsbeek to pick it up. She also denied that she asked Mr Kalsbeek to bend down and touch his toes or to bend down and tie his shoelaces: ts 1,725 - 1,726.
Mr Kalsbeek closed his cross‑examination of Ms Chin (not five minutes after he had told the court 'I don't want to accuse people of lying' and 'what am I going to do? Be a bully again …': ts 1,761) with the following words: 'my last word's this then, you're a liar and you're lying through your teeth': ts 1,787. He then sat down and turned away from her.
Ms Chin was clearly upset by this suggestion and the aggressive manner in which it was put, leading to counsel for the defence deciding to limit her re‑examination of Ms Chin to a single question.

Evidence of Katherine Susan Phipps

To assist the court with an understanding of the background to and the procedures behind this matter, the defendant called Katherine Susan Phipps as a witness. Ms Phipps has a bachelor degree in psychology from Monash University and says that she has been employed by Services Australia since in or around June 2006. She is an Acting Director/Psychologist, employed in Queensland by Services Australia.
Ms Phipps' witness statement is dated 21 October 2020 (Exhibit 27) and she was cross‑examined.
Ms Phipps' evidence was not challenged by Mr Kalsbeek and I accept it in its entirety.
She says that in her current role she is responsible for leading and managing business performance, resources and workflow, overseeing the management of staff, developing staff capability through professional supervision, resolving complex, sensitive and/or escalated customer and stakeholder issues that adversely impact on customer service, and providing high level specialist and strategic advice.
She states that she had no involvement in Mr Kalsbeek's assessment for a DSP. She reviewed the documents involved in the assessment of Mr Kalsbeek's claim for a DSP for the purposes of preparing her witness statement but only to understand the process of his assessment: Exhibit 27, par 7.
She is now aware that Mr Kalsbeek had previously been granted a DSP under the 2001 legislative requirements and that he, in or around December 2008, travelled overseas to China and Vietnam. Her evidence is that Mr Kalsbeek's DSP was cancelled on 27 February 2009 because he had remained overseas for more than the allowable period: Exhibit 27 par 11.
She points out that the allowable or 'portability' requirements are contained in Chapter 4 of the SS Act. Section 1215 of the SS Act provides that once a person exceeds their maximum portability period, a DSP can be suspended or cancelled.
She says that in 2009, the portability period for a DSP for temporary absences from Australia was 13 weeks.
The legislative requirements for obtaining a DSP changed in 2011, while Mr Kalsbeek was overseas. In particular, the Impairment Tables were changed to bring them up to date with contemporary medical and rehabilitation practice. Ms Phipps says that in 2013, to be eligible for a DSP, a person must have a permanent physical, intellectual or psychiatric condition resulting in functional impairment of at least 20 points, as measured by reference to the Impairment Tables, and have a Continuing Inability to Work (CITW).
For the purposes of a DSP, CITW means an inability to undertake a training activity to prepare for work within the next two years because of an impairment.
The requirement for the person to have an impairment rating of at least 20 points under the Impairment Tables and the requirement for the person to have a CITW are of equal importance.
The Impairment Tables are function based and designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
The ratings include descriptors. 'No impact' means 0 points, 'mild impact' means 5 points, 'moderate impact' means 10 points, 'severe impact' means 20 points and 'extreme impact' means 30 points.
For a DSP, a condition is considered permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, is fully treated, stabilised and is likely to persist for more than two years. In determining whether a medical condition has been fully diagnosed, an examination and analysis of diagnostic information is required. The relevant diagnostic information is normally available in the medical records provided by the claimant and from other corroborating evidence.
Self-reporting of symptoms alone is insufficient.
In determining whether a condition has been fully treated, it is necessary to consider the nature and effectiveness of past treatment, the expected outcome of current treatment, any plans for further treatment and whether past, current or future treatment can be considered reasonable.
In terms of supporting documents, medical evidence is required to determine whether a person meets the DSP impairment and CITW qualification requirements. It is the person's responsibility to provide medical evidence in support of their DSP claim. Self‑reported symptoms cannot be taken into account unless there is corroborating evidence of the person's impairment.
Ms Phipps understands that the medical report compiled by Dr McClymont dated 21 October 2013 was provided by Mr Kalsbeek in support of his new DSP claim and used during the interview and JCA before Ms Chin on 13 November 2013. Ms Phipps further understands that the same medical report was used during the JCA review on 17 February 2014 (conducted by Ms Oxenham) when Mr Kalsbeek appealed the decision to reject his DSP claim.
During face-to-face JCAs, an effective assessment interview involves an ability to source relevant information from people quickly, while maintaining rapport. There are no set questions. Previous medical evidence may still be considered current and therefore relevant depending on the person's condition and whether the information is representative of the person's current degree of impairment. Ms Phipps understands that HPAU advice was sought by an Authorised Review Officer during Mr Kalsbeek's appeal conducted by Ms Oxenham.
JCA Assessors are medical, health and allied health professionals who are employed by Services Australia to conduct JCAs. These professionals include registered psychologists and registered occupational therapists. A Job Capacity Assessor's qualifications generally align with the Impairment Tables relevant to an individual's primary medical condition.

Disposition

Duty of care

As I have said earlier in these reasons, to succeed in his claim, Mr Kalsbeek must first show that the defendant owed him a duty of care in the circumstances of this case.
There is an abundance of authority for the proposition that a common law duty of care may arise in the performance of statutory functions, including the manner in which a statutory duty is performed: Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1, Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562, Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540.
Nowhere in Mr Kalsbeek's statement of claim is it articulated as to precisely what duty of care Mr Kalsbeek is alleging the defendant owed to him. However, I accept the defendant's analysis in its closing submissions dated 25 November 2020 at paras 159 and 162, that it is likely that Mr Kalsbeek is alleging that the defendant owed him a duty of care when the defendant decided to not award a DSP to Mr Kalsbeek, from which came the decision to refer him to Max Solutions, or when the defendant decided to not conduct a competent physical examination of Mr Kalsbeek as part of his application for a DSP.
In regard to the former, Mr Kalsbeek is not assisted by what Sleight DCJ said in Upton v Centrelink [2009] WADC 116 (Upton) [50], namely '… the law is clear there is no duty of care on the part of officials to make the correct decision in the absence of misfeasance'. I respectfully agree with what his Honour said in Upton.
The elements of misfeasance in public office include an invalid or unauthorised act done maliciously or recklessly by a public officer: Northern Territory of Australia v Mengel (1995) 185 CLR 307, 370.
In Scott v Secretary, Department of Social Security [2000] FCA 1241; (2000) 65 ALD 79 (Scott), (the majority of Beaumont & French JJ with whom Finkelstein J agreed on this point) stressed that liability of a public official for misfeasance was limited to cases involving a deliberate misuse of power with an intention to cause harm. Such an intention can arise by a reckless disregard.
I accept the evidence of Ms Chin about what occurred during and after the JCA on 13 November 2013. It is supported by a written contemporaneous record of the outcome of the interview. Her responses under cross-examination were clear and unequivocal and in my opinion there was no aspect of Ms Chin's conduct at the JCA on 13 November 2013 that could possibly comprise negligent conduct by Ms Chin or the defendant. I prefer it to the evidence of Mr Kalsbeek where the events of 13 November 2013 are concerned. Mr Kalsbeek is relying solely on his recollection of that JCA.
In the light of the evidence given by Ms Phipps, which I have already accepted, I consider that at all times during and after the JCA, Ms Chin acted entirely appropriately towards Mr Kalsbeek.
I find in particular that Ms Chin conducted the JCA itself without any involvement of other people and did not conduct any unauthorised examination (or indeed any physical examination) of Mr Kalsbeek or perform any testing of his back injury or mental health issues at the JCA.
There is thus no evidence to support the proposition that Ms Chin did anything at the JCA which could be regarded as invalid or unauthorised, much less so maliciously or recklessly.
During Mr Kalsbeek's cross‑examination of Ms Chin, it became apparent that Ms Chin had conducted the JCA on the basis that Mr Kalsbeek's application for a DSP was a new application, whereas Mr Kalsbeek had consistently approached the matter on the basis that this was simply a continuation of a previous DSP; for example, ts 1,731.
Earlier, when referring to the DSP application form which gave rise to the JCA on 13 November 2013 before Ms Chin, he said 'there was never any need for [the application form] … because you were supposed to continue my old file'; ts 1,027. He went on to say, addressing me, 'I didn't give a shit about what was in the form. It ‑ it has nothing to do with me'; ts 1,050.
Be that as it may, where an exercise of statutory power is subject to a right of review and the decision-maker exercises the power in good faith, no common law duty of care in the exercise of that power can arise: Scott; Jones v Department of Employment [1989] QB 1; Scott v Pedler [2004] FCAFC 67; (2004) 80 ALD 283; Coffey v Secretary, Department of Social Security [1999] FCA 375; Wang v Secretary, Department of Employment and Workplace Relations [2006] FCA 898.
In Upton, Sleight DCJ accepted that the statutory review procedure was inconsistent with the existence of a common law duty of care for Centrelink in respect of a decision to refuse a social security payment. He reviewed the authorities and concluded that '[t]o impose such a duty of care would enable claimants to side step the appeal procedures of the statutory scheme and remove finality': Upton [50].
For disappointed or rejected applicants for social security benefits, there is a statutory remedy provided in pt IV of the SSA Act, namely review by the SSAT.
It is my further finding that the defendant did not owe Mr Kalsbeek a duty of care to ensure a competent physical examination during his review process. Such an obligation would be entirely inconsistent with the nature of the process. The JCA's in 2013 and in 2014 were not independent expert examinations of Mr Kalsbeek. They were simply an analysis of the medical evidence which Mr Kalsbeek provided to determine the applicable rating under the Impairment Tables.
In the original assessment and at each level of review, the assessment was made by an appropriately qualified mental health professional and an appropriately qualified physical health professional. The double review at each level addressed the two distinctly different disabilities claimed by Mr Kalsbeek.

Breach of duty

Even if I am wrong about the existence of a duty of care, there is nothing to support a finding that there was a breach of that duty. The context of the 2013 JCA was the return of Mr Kalsbeek to Australia after four years traveling abroad. At all relevant times it was made clear to Mr Kalsbeek that it was his responsibility to provide medical evidence to support his claim for a DSP. Mr Kalsbeek did not provide any evidence of treatment or assessment other than the report from Dr McClymont.
Dr McClymont's report states that Mr Kalsbeek had been her patient since 16 April 2007. It is reasonable to infer that she had not treated him during his period abroad, from which Mr Kalsbeek only recently returned. She did not indicate in her report whether she had seen Mr Kalsbeek since his return to Australia and she did not refer to any of the other medical reports.
Dr McClymont's report describes Mr Kalsbeek's ability to function in the following terms:
difficulty with movement, frequent rests, cannot stand for 1/2 hour. Sitting for prolonged periods painful.
Ms Chin's decision to rely on Dr McClymont's report in conjunction with her own observation of Mr Kalsbeek that he could sit for 40 minutes was consistent with the general procedures and applicable standards. Her view was confirmed by Ms Bliss, the contributing assessor following the 13 November 2013 JCA.
In the light of Ms Phipps' evidence, it is evident that Ms Chin could not allocate points to the claimed chronic fatigue/depression, because it had not been considered FDTS.
Following Ms Chin's total allocation of 5 points to Mr Kalsbeek, she referred him to the Disability Management Service. However, she also recommended a deferred referral after a period of exemption to give Mr Kalsbeek the chance to pursue further diagnostic investigations and treatment for his chronic fatigue/depression. It is unclear whether Mr Kalsbeek in fact pursued those investigations and treatment.
It is apparent however that the assessments that followed were broadly consistent with Ms Chin's assessment, despite her allocation of 5 points being increased to an allocation of 10 points in subsequent reviews. In any event, whether the rating was 5 points or 10 points, neither entitled Mr Kalsbeek to a DSP.
The SSAT subsequently determined that Mr Kalsbeek's spinal injury should be allocated 20 points. However, there is nothing in the SSAT decision or before me in any other form to suggest that the earlier assessors had not acted in good faith or had not complied with general procedures and applicable standards in the course of their assessments.

Damages

For completeness, I should say that Mr Kalsbeek has adduced no evidence whatsoever of any compensable damages.
On 16 March 2020 Registrar Kingsley ordered Mr Kalsbeek to file and serve particulars of damage. That order was not complied with.
At the hearing on 13 July 2020 before Judge Braddock, her Honour ordered Mr Kalsbeek to file particulars of loss, damage or expenses within 14 days. Again, Mr Kalsbeek did not do so.
At the directions hearing on 10 August 2020, Judge Gething ordered Mr Kalsbeek to file particulars of loss and damage by 17 August 2020. His Honour also provided Mr Kalsbeek with a template to assist him in drafting the document. Mr Kalsbeek failed to comply with that order. Then on 18 August 2020, Judge Gething extended the time for production of particulars of damage to 25 August 2020. Mr Kalsbeek at that point informed the court that he intended to obtain legal advice to assist him in preparing that document.
On 26 August 2020, Mr Kalsbeek filed what he seemingly considered to be particulars of damage. The particulars were, at best, inadequate.
During cross‑examination, Mr Kalsbeek accepted that he had provided no evidence of loss. He said this at ts 1,947:
… and another thing, your Honour, I don't know where it is. I'm not going to bored (sic) you with it, your Honour, and this is why I've given you no damages. I'm not stupid. You know why? There is a letter from the bank in there that says ‑ and this is what all this is about. Based on Mr Kalsbeek's savings records, if he would have been paid $500 every week, he would have saved money. He would have accumulated interest. Does that make sense?
He then said at ts 1,947:
[counsel for the defendant]'s 100% right that there is no financial loss.
Curiously, later in his closing submissions, Mr Kalsbeek said at ts 1,961:
So as an atheist of one sort, your Honour, a financial settlement is forgiveness and a win in this trial is my salvation, which could only be complete if I receive your letter in the mail. Consequently, your Honour, I have not provided the sum of damages, as I didn't know, up to this point, if I could ever forgive Centrelink, your Honour, for what they did to my life.

However, shortly afterwards, Mr Kalsbeek repeated his claim for damages. He said at ts 1,964:
So your Honour, finally, there is a financial loss. Being the interest I lost in that $10,000 back pay. The core foundation of this claim is that I have established a financial loss in interest. And it should not make any difference is (sic) that a million cash or $5 in predicted interest, your Honour, as I have demonstrated a financial loss with the Commonwealth Bank. And they are on stand‑by to give you an estimation. It could be 100 bucks, 80 bucks, it doesn't matter, your Honour. I have established a financial loss and that is why my case is so strong, your Honour, yeah.
I should perhaps further add that Mr Kalsbeek did not advance any admissible evidence that he currently suffers a recognised psychiatric illness. The court is therefore precluded under s 5T of the Civil Liability Act 2002 (WA) from making an award of damages for pecuniary loss for consequential mental harm.

Conclusion and costs

For the above reasons, Mr Kalsbeek's claims must be dismissed.
I will hear submissions from the parties as to the nature of any costs order sought.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
TH
Associate to Judge Sharp
15 APRIL 2021