Lindsey v Comcare

[2006] HCATrans 406

[2006] HCATrans 406

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M114 of 2004

B e t w e e n -

DAVID JAMES LINDSEY (NOW KNOWN AS DAVID JAMES SJOSTROM‑CLEMENS‑LINDSEY)

Applicant

and

COMCARE

Respondent

Application for special leave to appeal

Office of the Registry
  Melbourne  No M125 of 2004

B e t w e e n -

DAVID JAMES LINDSEY (NOW KNOWN AS DAVID JAMES SJOSTROM‑CLEMENS‑LINDSEY)

Appellant

and

COMCARE

Respondent

Publication of reasons and pronouncement of orders

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 AUGUST 2006, AT 1.46 PM

Copyright in the High Court of Australia

__________________

KIRBY J:  

Background

The applicant (formerly known as David James Lindsey) seeks leave to appeal (M 114/2004) to the Full Court of this Court from orders made by Hayne J on 27 May 2004. Those orders (in proceedings numbered M 278 of 2003) were that the applicant’s statement of claim against the respondent be struck out and that there be judgment for the respondent in the action brought against it by the applicant, together with costs in favour of the respondent. The applicant also lodged a notice of appeal (M 125/2004), identical in its terms to M 114/2004, which purports to be made pursuant to s 34(1) of the Judiciary Act 1903 (Cth) and appears to be premised on the notion that leave is not required against the decision of Hayne J. This notice of appeal is incompetent, as the decision of Hayne J was interlocutory in nature and the applicant requires leave to appeal.

We have considered the applicant’s written summary of argument, filed and replied to as the matters numbered M 114 and 125 of 2004) together with the

applicant’s draft notice of appeal, the respondent’s written summary of argument and the applicant’s reply.  We have also considered the reasons published by Hayne J for the orders just stated and the application book filed by the applicant containing his writ of summons with a statement of claim attached, together with a great deal of other material. 

The applicant, by his summons, invoked the original jurisdiction of this Court claiming to recover moneys from the respondent, a statutory corporation established by the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the 1988 Act”), s 68. The ultimate basis of the claim was traced back to a personal injury suffered by the applicant in March 1977, arising out of or in the course of his employment with the Department of Defence of the Commonwealth. For that injury, the applicant was initially paid compensation benefits under the then applicable federal legislation, namely the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“the 1971 Act”). That compensation was paid for a closed period which was relatively brief. However, more than twenty years later, in April 1999, the applicant lodged a further claim for compensation. This was dealt with (as transitional provisions in the 1988 Act required) under the 1988 Act. The entitlement to statutory compensation was refused by the respondent. Although an application for review to the Administrative Appeals Tribunal was commenced, indeed twice (the second time in respect of a further claim for compensation for permanent injury), such applications were not ultimately heard or determined. Instead, in February 2002, by consent, the Tribunal dismissed the applications before it.

Disposition

So far as the applicant’s claim was based on entitlements to recover moneys from the named respondent, it had to be brought, in the first instance, within the four corners of the legislation rendering the respondent liable in law.  Indeed, as Hayne J pointed out in his reasons, this is not left to inference and structure.  It is expressly stated in s 14(1) of the 1988 Act which makes it clear that the liability of the respondent to pay compensation is limited to a compensation-type liability established “in accordance with this Act”.  This means that the pursuit of the entitlement, in separate proceedings, in a general court of law, such as this Court, is not available.  The price of recovering such compensation is an obligation to conform to the procedures laid down by the Parliament for such recovery.

Upon this basis, the applicant’s pursuit of his claim against the respondent was, as Hayne J held, bound to fail.  No error is shown in Hayne J’s conclusion to this effect.  To the contrary, the conclusion is clearly right and, as his Honour held, the claim for compensation “should not be permitted to be litigated further”.

Nevertheless, the applicant propounded a separate purported basis of entitlement to him, namely misleading and deceptive conduct on the part of the respondent’s employees for which the respondent was liable in law.  Such a claim had earlier been advanced by the applicant in the Federal Magistrates Court in 2002.   That claim had been dismissed by that court.  As Hayne J held, it was not competent to the applicant to attempt to relitigate that claim in this Court by ignoring the prior adverse decision of the Federal Magistrate.

The applicant’s alternative basis of claim was therefore also properly dismissed by Hayne J.  There is no arguable foundation for the re-argument of the claim before the Full Court of this Court.  Any such re-argument would be futile and bound to fail.

In the applicant’s documentation, complaints of various kinds are made about the conduct of the proceedings at first instance, with suggestions that they lacked judicial independence.  Vague claims are made that Hayne J might have been disqualified from determining the proceedings because he had not disclosed that, as a barrister or solicitor, “he may have performed work for the Australian Commonwealth Government” or its authorities such as the respondent.  This unrefined submission (and others like it) does not have to be considered by us at any length.  Suffice it to say that no proper foundation is laid in any of these assertions to establish disqualification (if that is what the applicant is suggesting) and the record, as well as the careful consideration of the issues by Hayne J in his reasons, contradict the complaint now somewhat tentatively advanced.

From the foregoing it follows that leave to appeal should be refused.

Order

Pursuant to r 41.11.1 of the High Court Rules, we direct the Registrar to draw up, sign and seal an order dismissing the application for leave.  For the reasons given, the notice of appeal in matter M 125/2004 is incompetent and is struck out.  I publish that disposition signed by Callinan J and myself.

AT 1.51 PM THE MATTERS WERE CONCLUDED