SRGF v Comcare
[2025] FCA 637
•17 June 2025
FEDERAL COURT OF AUSTRALIA
SRGF v Comcare [2025] FCA 637
File number: ACD 39 of 2024 Judgment of: KENNETT J Date of judgment: 17 June 2025 Catchwords: PRACTICE AND PROCEDURE – application for suppression and non-publication orders – application for filing of additional submissions – application seeking recusal or referral of proceeding to the Chief Justice for consideration of whether it should be heard by Full Court Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 35, 44
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Sch 16 item 25
Federal Court of Australia Act 1976 (Cth) ss 23, 37AE, 37AF, 37AG; former s 50; Pt VAA Div 2, Pt VAAA
Judiciary Act 1903 (Cth) ss 55ZF, 55ZG
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 7(2), 7(3)
Legal Services Directions 2017 (Cth) App B
Cases cited: Commissioner of Taxation v [Respondent] [2023] FCA 1176
Herald & Weekly Times Limited v Gregory D Williams (formerly identified as VAI) [2003] FCAFC 217; 130 FCR 435
Keyzer v La Trobe University [2019] FCA 646
Ogawa v President of the Australian Human Rights Commission [2022] FCAFC 160; 294 FCR 221
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 279 CLR 148
White v Commissioner of Taxation [2024] FCA 185
Chami Z, “The Obligation to Act as a Model Litigant” (2010) AIAL Forum No 64
Division: General Division Registry: Australian Capital Territory National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 48 Date of last submission: 8 April 2025 Date of hearing: Determined on the papers Counsel for the applicant: The applicant is a litigant in person Counsel for the respondent: K L Bradey Solicitor for the respondent: Moray & Agnew
ORDERS
ACD 39 of 2024 BETWEEN: SRGF
ApplicantAND: COMCARE
Respondent
ORDER MADE BY:
KENNETT J
DATE OF ORDER:
17 JUNE 2025
THE COURT ORDERS THAT:
1.On the ground set out in s 37AG(1)(a) of the Federal Court of Australia Act1976 (Cth):
(a)the applicant is to be referred to by the pseudonym SRGF in all documents relating to this proceeding; and
(b)any information tending to reveal the identity of the applicant is not to be published or otherwise disclosed to any person other than:
(i)the Court and its staff; and
(ii)the parties and their legal representatives.
2.The interlocutory application filed by the applicant on 9 March 2025 be dismissed.
3.The interlocutory application filed by the applicant on 8 April 2025 be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
KENNETT J:
The applicant resigned from the Australian Public Service (APS) in December 2021 after a decline in his mental health. It appears that he had last worked in May 2020. He submitted claims for workers’ compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) on 1 April 2022 and 11 December 2022. The first claim identified the applicant’s injury as “major depressive disorder, major anxiety, chronic fatigue” and said that he had first noticed symptoms in June 2014. The second claim identified his injury as “major depression and anxiety” and said that he had first noticed symptoms in August 2019.
The respondent (Comcare) denied both claims. The applicant sought review of Comcare’s decisions in the (then) Administrative Appeals Tribunal (the Tribunal). The Tribunal affirmed both decisions. The applicant appealed to this Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). Following the repeal of the AAT Act and the replacement of the Tribunal by the Administrative Review Tribunal, the proceeding continues on foot with the Court empowered to do anything that it could do in relation to the Tribunal under the old law: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Sch 16 item 25.
The applicant sought a direction that the proceeding be determined on the basis of written submissions and without an oral hearing on the ground that his medical condition precluded his participation in an oral hearing. The respondent did not oppose that course, and I made the direction sought by the applicant on 5 November 2024.
These reasons concern three interlocutory applications filed by the applicant. The first relates to the suppression of the applicant’s identity. The second proposes the filing of additional submissions by the applicant. The third seeks that I recuse myself or refer the case to the Chief Justice for consideration of whether it should be heard by a Full Court.
Suppression of applicant’s identity
The Tribunal made orders under s 35 of the AAT Act on 2 November 2023 prohibiting the publication of any information tending to reveal the identity of the applicant and granting him the pseudonym SRGF. When his notice of appeal from a tribunal was filed in this Court, it was accepted for filing on the understanding that his identity was suppressed.
When it came to my attention that a pseudonym was being applied and documents being treated as suppressed, without any confidentiality order having been made by the Court, I sought clarification of the position. Division 2 of Part VAA of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) provides the Court with power to make suppression and non-publication orders in relation to matters before it, and s 37AE emphasises that that power is to be exercised taking into account that “a primary objective of the administration of justice is to safeguard the public interest in open justice”. It appeared to me that, unless the Court made a confidentiality order, its proceedings should be public. On 24 February 2025 the Registry made contact with the applicant inviting him to file an application for the use of a pseudonym and/or suppression of filed material, supported by an affidavit. The applicant filed an interlocutory application on 27 February 2025 seeking orders in the following terms.
1. The Applicant shall be referred to by the pseudonym SRGF in all documents relating to the case numbered ACD39 of 2024 in line with orders made by the Administrative Appeals Tribunal.
2. All documents relating to the case numbered ACD39 of 2024 shall be suppressed in line with orders made by the Administrative Appeals Tribunal.
3.No hearing will be held with respect to these interlocutory orders, subject to the condition that the parties be entitled to present written submissions, in accordance with the Federal Court’s orders dated 5 November 2024.
The applicant filed written submissions in support of his interlocutory application. The respondent indicated that it neither consented to nor opposed the application and did not seek to be heard.
The applicant’s submissions raised an issue concerning a potential conflict between the confidentiality orders made by the Tribunal (which on their face are still in operation) and any order of the Court that might prevent him being referred to by a pseudonym. The submissions also criticised the Court for deciding not to “honour the Tribunal’s orders”. However, I do not think this factor either obviates the need for confidentiality orders or controls the decision of the Court as to whether they should be made. In Herald & Weekly Times Limited v Gregory D Williams (formerly identified as VAI) [2003] FCAFC 217; 130 FCR 435 at [29]-[30] Merkel J (with whom Finn and Stone JJ agreed) said, in relation to the former s 50 of the FCA Act (the predecessor of the current s 37AF):
In [SRD v Australian Securities Commission (1994) 52 FCR 187] at 193 Hill J observed that a fundamental difference between the AAT and the Court is that the AAT is one of the layers of administrative decision-making by the Commonwealth and the Court exercises the judicial power of the Commonwealth. In Russell v Russell (1976) 134 CLR 495 at 520 Gibbs J stated:
It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted ‘publicly and in open view’ (Scott v. Scott [1913] A.C. 417, at p.441). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for ‘publicity is the authentic hall-mark of judicial as distinct from administrative procedure’ (McPherson v McPherson [1936] A.C. 177, at p.200).
The fundamental differences between the AAT and the Court, and the different criteria that are to be applied in respect of suppression orders under s 35 of the AAT Act and s 50 of the FCA Act, afford strong support for the view that there is no legislative intention that the privacy and confidentiality in relation to a matter in the AAT should continue when that matter, or a part thereof, comes before the Court. When the matter comes before the Court pursuant to ss 44 or 45 of the AAT Act, s 39B of the Judiciary Act 1903 (Cth) or s 5 of the Administration Decisions (Judicial Review) Act 1977 (Cth) the criterion prescribed by s 50 must be satisfied before a suppression order may be made.
Anastassiou J applied this reasoning to the current provisions of Division 2 of Part VAA in Keyzer v La Trobe University [2019] FCA 646 at [32]-[35]. The issue there was whether the Court should seek to give effect to confidentiality entitlements of the parties arising from collective agreements registered under industrial relations legislation. (See also Ogawa v President of the Australian Human Rights Commission [2022] FCAFC 160; 294 FCR 221, where Dr Ogawa had been allocated a pseudonym in her proceeding before the Australian Human Rights Commission but the Full Court required the filing of evidence to support continued use of that pseudonym in the proceedings before it.)
Relevantly here, ss 37AF and 37AG of the FCA Act provide as follows.
37AF Power to make orders
(1)The Court may, by making a suppression order or non‑publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:
(a)information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or
(b) information that relates to a proceeding before the Court and is:
(i)information that comprises evidence or information about evidence; or
(ii)information obtained by the process of discovery; or
(iii)information produced under a subpoena; or
(iv)information lodged with or filed in the Court.
(2)The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).
37AGGrounds for making an order
(1)The Court may make a suppression order or non publication order on one or more of the following grounds:
(a)the order is necessary to prevent prejudice to the proper administration of justice;
(b)the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
(c)the order is necessary to protect the safety of any person;
(d)the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).
(2)A suppression order or non publication order must specify the ground or grounds on which the order is made.
The specification of available “grounds” in s 37AG means that one or more of these grounds must be established and expressly identified for an order to be made. There is not a general discretion.
The applicant’s submissions do not attempt to identify a ground on which the proposed orders may be based. His affidavit in support of the interlocutory application is similarly unhelpful in this respect. Nevertheless, it does appear to me that the proposed orders should be made.
Section 37AG(1)(b) and (d) are clearly not relevant in the present case.
Because the term “necessary” sets a high bar (see eg White v Commissioner of Taxation [2024] FCA 185 at [40]-[47] (Anderson J)), there is a real question whether the ground in s 37AG(1)(c) can be made out where the person who is said to be at risk of harm is the moving party in the proceeding. I have not found a case in which an applicant has succeeded in obtaining an order on this ground. A claimant who faces a serious risk of mental or physical harm as a result of publication of information about a proceeding can at least ordinarily avoid that risk by not commencing that proceeding. Whether the claimant should be put in the position of having to make that choice is an issue that potentially engages s 37AG(1)(a) rather than (c).
It is not necessary to reach a concluded view as to whether s 37AG(1)(c) is capable of being made out in a case such as the present, because I have come to the view that an order should be made on the ground set out in s 37AG(1)(a).
The applicant relies on the reasons given by the Tribunal for giving directions under s 35 of the AAT Act and on the letter from his psychiatrist that was before the Tribunal. That letter said, in part:
The stress related to the litigation process has already had a material and negative impact on [the applicant’s] psychiatric wellbeing. He is very concerned about his former colleagues and supervisors would be [sic] aware of his claim for workers’ compensation and might seek retribution for his allegations relating to their behaviour.
[The applicant] has an immense fear about details of his personal information (including details of his medical and psychological treatments) be [sic] published and accessible to strangers including former colleagues or social relations. [The applicant’s] anxiety has significantly heightened and he has been experiencing physical symptoms … The potential publication of his personal information has already caused him to question the continuation of litigation. I am concerned that the publication of non-anonymised material is a big threat to the safety and security of the therapeutic space that [the applicant] has been working hard to establish over the past few years. I am also concerned about his risk of relapsing into a major depressive episode.
This letter was dated 14 September 2023 and has not been supplemented by any more recent report. However, in the light of the long history of illness recounted in the Tribunal’s reasons for the decision under review and the manner of the applicant’s written communications with the Court, there is no reason to think that the position described in the letter has changed in any material way.
The Tribunal accepted that the applicant suffered from mental health conditions but was not satisfied that his employment in the APS caused or contributed to these. The issue in this proceeding is whether the Tribunal fell into errors of law in coming to that view. If the applicant were forced to discontinue the proceeding by his fear of the consequences of publicity, or was unable to conduct it effectively, the result would be that the very conditions for which he seeks compensation would deny him the chance to challenge the Tribunal decision and potentially obtain that compensation. For the lawfulness of the decisions denying the applicant compensation to remain untested, as a result of health challenges and fears arising out of the subject matter of those decisions, would in my view be inimical to the interests of the administration of justice (cf, in the domain of reputational damage, Commissioner of Taxation v [Respondent] [2023] FCA 1176 at [23]-[24]).
There will therefore be orders, on the ground stated in s 37AG(1)(a), requiring the applicant to be referred to by the pseudonym used in the Tribunal proceedings and preventing disclosure (beyond the Court, the parties and their legal representatives) of information tending to reveal his identity. (I note that I do not consider it necessary to prohibit disclosure of all documents in the proceedings, as sought by the applicant. Where a document can be released without tending to disclose the applicant’s identity (including by making appropriate redactions), the interests of the administration of justice do not preclude such release.)
Proposed additional submissions
Pursuant to the orders made by a Registrar on 5 December 2024, on 22 January 2025 the Applicant filed a seven page document entitled “Outline of the Applicant’s submissions” and a 63 page document entitled “The Applicant’s submissions”. On 28 February 2025 the respondent filed its written submissions (of 25 pages) (the Comcare submissions). The applicant filed written submissions in reply (headed “The Applicant’s final submissions”) on 9 March 2025 (the reply submissions).
The main body of the reply submissions comprises 12 pages. Annexed thereto is a document of 24 pages entitled “Appendix A: catalogue of the Respondent’s misleading submissions” (the appendix). The contents of the appendix reflect its heading.
The applicant filed a further interlocutory application on 9 March 2025 seeking the following orders.
1.The Applicant shall submit a numbered list of allegedly misleading statements found within the Respondent’s submissions. Each statement will be accompanied by easily verifiable citations or logical errors demonstrating the allegedly misleading elements. No complex issues will be included.
2. The Respondent shall respond to each element individually to demonstrate the validity of its submissions and additionally explain to the Court any other inaccuracies or potentially misleading elements within its submissions of which it is aware (including potentially misleading legal arguments).
3. No hearing will be held with respect to these interlocutory orders, subject to the condition that the parties be entitled to present written submissions, in accordance with the Federal Court’s orders dated 5 November 2024.
Because this case is being decided on the papers, it was not appropriate to convene a case management hearing to discuss this interlocutory application and sort out an efficient way of dealing with it. The Registry relayed to the parties orders that I was minded to make in chambers for the filing of short submissions on the interlocutory application. After responses were received, orders were made in chambers on 17 March 2025 for the material contained in the interlocutory application to be treated as the applicant’s submissions; the respondent to file any submissions by 21 March 2025; and the applicant to file any submissions in reply by 25 March 2025.
The prologue to the interlocutory application, which I have treated as constituting the applicant’s submissions, was as follows.
1. The Applicant understands that should the contentions advanced in this interlocutory application prove unfounded, the Court would be in a position to dismiss the Applicant’s appeal on the basis of the making of vexatious claims.
2. The Applicant is confident that the contentions made can be proven without detailed legal arguments that could impose an unnecessary inefficiency upon the Court. In fact, the Applicant’s contentions can be proven by simply comparing statements with the relevant source material.
3. This interlocutory application thus advances a means of efficiently dispensing with the Applicant’s appeal should the Court’s reasonable expectation that the Respondent is acting in compliance with the obligations of a model litigant prove well founded.
4. The Applicant contends that the Respondent’s submissions are either intentionally or unintentionally misleading to the extent that they could unduly sway the Court’s opinion should the Court consider them under the assumption that they accord with the obligations of a model litigant.
5. The Applicant requests that the Court impartially consider the factuality and intent of the Respondent’s submissions through an interlocutory hearing conducted via written submissions comprising the Applicant’s identification of alleged misleading statements and the Respondent’s submissions justifying the veracity of those statements.
6. The Applicant notes that if the Respondent is confident of its intentions and the factuality of its submissions, it is bound to agree to the Applicant’s proposal on the basis that it would provide the Court with a means of more efficiently dispensing with his appeal.
7. The Applicant notes that the Court may be under an ethical obligation to question what might appear a reckless course of action. The Applicant assures the Court that there can be no doubt that, at a minimum, the Court will find that the Respondent’s submissions can reasonably be expected to mislead the Court. Any other finding would demonstrate a disregard for evidence that would render the appeal meaningless; the Applicant thus would not accept that this is a reckless course of action. The Applicant notes that the Court will in all probability have information to support its decision: the Respondent will undoubtedly feel obliged to advise the Court of:
a. A sudden need to address ‘issues’ in its submissions; and
b. A failure to comply with the Federal Court Rules (33.21).
8. It cannot be the case that the Court would willingly accept the possibility that a litigant’s submissions could intentionally or unintentionally mislead it once that possibility has been claimed by another party. This is particularly the case where the litigant represents the Sovereign and is thus bound to a higher standard of action such that its inherent surplus of power cannot be seen to overwhelm that Sovereign’s subjects in their pursuit of justice. Any abrogation of the obligations of a model litigant is thus an abrogation of the potential for justice at all; only the will of the Sovereign would remain. As such, any possible abrogation must be investigated.
Comcare resisted the making of the proposed orders, principally on the basis that the applicant had already had the opportunity to make — and had made — submissions on aspects of the respondent’s submissions that he alleged were misleading. To the extent that Comcare sought to respond to those allegations, the appropriate mechanism (it was said) was by way of a “reply” (more accurately a rejoinder) to the reply submissions. The substance of what was sought to be put as a rejoinder was included in Comcare’s submissions. Thus, it was submitted, the proposed orders were not necessary.
The applicant filed submissions in reply on 19 March 2025 and a further page of submissions on 23 March 2025. These submissions were confined to an aspect of Comcare’s proposed rejoinder, namely the relevance and application of model litigant principles. This will be mentioned further below.
On the substance of the interlocutory application, I agree that the proposed orders are not necessary.
(a)The applicant has already filed (by way of the appendix) a detailed list of propositions in the Comcare submissions which he says are wrong or misleading. The appendix has been filed as part of the reply submissions and is thus before the Court.
(b)No page limit was imposed by the orders of 5 December 2024 and it was therefore open to him to say as much as he wanted on this topic. I do not understand him to be suggesting that there was more that he wanted to say.
It may be that I do not fully understand what the applicant sought to achieve by filing the interlocutory application. It appears that, in advancing the arguments set out above (on the same day as he filed his reply submissions), the applicant is no longer concerned with the substantive legal arguments in the appeal and is instead focused on what he perceives to be ethical failings or incompetence on the part of Comcare and its legal representatives in their conduct of the proceeding. Similarly, the applicant’s reply submissions appear to focus on Comcare’s conduct of the case rather than its subject-matter: their emphasis is the Court’s “obligation to require the highest standards of ethical and professional integrity of the Respondent”.
If I am ultimately satisfied that propositions in Comcare’s submissions are wrong, those propositions obviously will not be accepted and the result of the appeal may thereby be affected. Any question as to whether deliberate deception had been attempted (and what should be done about that) would need to be pursued separately: in deciding this proceeding, the Court is not exercising any disciplinary jurisdiction over legal practitioners (let alone over their client).
Relatedly, the model litigant obligations which apply to all levels of government (reflected in Appendix B to the Legal Services Directions 2017 made under s 55ZF of the Judiciary Act 1903 (Cth) (the Judiciary Act)) constitute expectations of fair dealing, which may sometimes inform discretionary decisions (eg as to costs, extensions of time or whether amendments should be allowed), but are not binding rules of law. In so far as these expectations are embodied in the Legal Services Directions, s 55ZG of the Judiciary Act expressly provides that they are not enforceable or able to be raised in a proceeding except by the Attorney-General. More broadly, as an article cited by the applicant puts it:
As it remains the case that the primary source of the model litigant obligation is judicial pronouncement in relation to the standards of conduct expected of government litigants, so it remains the case that the primary method of sanction for departure from those standards is judicial criticism …
Other than expressing their opinion, however, there are few tools available to the courts to hold government litigants accountable to the standards of conduct expected of a model litigant. This is inherent in the nature of the obligation, which is an aspirational goal of fluid content, rather than a minimum standard of a more fixed nature.
(Chami Z, “The Obligation to Act as a Model Litigant” (2010) AIAL Forum No 64, at 55.)
Invoking model litigant principles against the respondent in this context therefore does not assist the applicant in his prosecution of the proceedings, although it may serve some other agenda.
Similarly, as to point 1 of the submissions set out at [24] above, I am not persuaded that considering and rejecting the applicant’s contention that the respondent has propounded misleading statements at an interlocutory stage would in itself provide a basis for dismissing the appeal (let alone an efficient one). Although the Court has an implied power under s 23 of the FCA Act to protect its own processes against abuse (in addition to the express powers in relation to “vexatious proceedings” in Part VAAA), it is not clear to me how behaviour by a litigant in the conduct of a properly constituted proceeding could make the proceeding itself an abuse of process liable to be dismissed. Such behaviour is to be addressed if necessary by other forms of control, such as an order that further material not be accepted for filing without the leave of a judge.
The interlocutory application filed by the applicant on 9 March 2025 will therefore be dismissed.
Recusal application
On 8 April 2025 the applicant filed a further interlocutory application which (as I read it) seeks, among other things, my recusal from the case (the recusal application). It is necessary to set out some of the background to this application.
In its submissions filed on 21 March 2025 responding to the interlocutory application seeking the filing of additional submissions (referred to above), Comcare acknowledged that there was an ambiguity in one paragraph of its substantive submissions filed on 28 February 2025 and sought to file an amended version of those submissions (the amended Comcare submissions). The amendment, which was marked up, involved the addition of two words into the original submissions at [17] so as to read:
“Employment” is not defined in the SRC Act, however the Respondent submits that it connotes not the fact of being employed, but what the employee in fact does in his or her employment. The use of the expression “persons who have engaged in such employment” as it appears in ss 7(2) and (3) of the SRC Act should be interpreted accordingly to mean persons undertaking the same duties, rather than just persons employed by the same employer, irrespective of the duties performed, as commonality of employer alone does not necessarily and often does not equate with employees engaging in the same employment.
(Emphasis in original; footnotes omitted.)
The amended Comcare submissions were accepted for filing by the Registry on 26 March 2025 after my Chambers had been consulted. I took the view that, because the amendment had been marked, and in any event did not raise any new issues, no prejudice could be caused to the applicant.
On 27 March 2025 the applicant lodged for filing a document entitled “The Applicant’s amended final submissions” (the applicant’s amended submissions), which was apparently an amended version of the “final submissions” he had filed on 9 March. The applicant’s amended submissions were one page longer than the submissions which they apparently replaced but the changes were not marked. On 1 April 2025 the Registry sought guidance from my Chambers as to whether the applicant’s amended submissions should be accepted for filing, noting that they were some 37 pages long in total. I asked the Registry to send an email to the parties asking that (i) the applicant re-lodge the document with all changes in mark-up and (ii) Comcare indicate its position on the amended submissions.
This email was sent on 7 April 2025. The applicant responded promptly by lodging a marked up copy of his amended submissions and sending a copy to Comcare. Later the same day, Comcare confirmed that it raised no objection to the filing of amended submissions by the applicant and my Chambers advised the Registry that those submissions could be accepted for filing. However, in email correspondence on 7 April, the applicant complained of what he considered to be inconsistent treatment of his amended submissions compared with those filed by Comcare.
Overlapping with these events was a course of email correspondence concerning the settling of the appeal book index. This process is managed by a Registrar in consultation with the parties or their legal representatives and is designed to ensure that the Court has available to it a single, sensibly organised, repository of the material it needs to have before it for the purpose of hearing an appeal. In the present case, correspondence concerning the contents of the appeal books began on 21 March 2025 and ended with the filing by the applicant of the index to the Part C appeal book on 28 March 2025 and the full Part C appeal book on 2 April 2025. It is apparent from the index to Part C that Comcare objected to the inclusion of several documents sought to be relied on by the applicant, and the applicant objected to the inclusion of a large volume of material that was before the Tribunal but not referred to in any submission. Part C also includes what appear to be meta-submissions compiled by the applicant and an extensive collection of authorities and legislation.
The recusal application, as noted earlier, was filed on 8 April 2025. To the extent that it seeks specific orders, these are contained in paragraph [6] which is as follows.
The Applicant thus requests the following:
a. That the Court address its lack of transparency by explaining and apologising for its prejudicial conduct.
b. If Justice Kennett made any of the relevant decisions, that the Justice recuse himself in acknowledgement of the unavoidable perception of a lack of impartiality arising from either bias or incompetence.
c. That the Court refer the notice of appeal and any other necessary papers to the Chief Justice for an order on whether the appeal should be heard by a Full Court under rule 33.22(l). In this regard:
i. The Applicant strongly believes that judges will be less willing to display any lack of professional integrity in front of colleagues.
ii. The Applicant similarly expects that biases may average out across three judges, thereby ameliorating any lack of ethical integrity.
iii. The Applicant further notes that the question of law surrounding subsections 7(2-3) of the Safety, Rehabilitation and Compensation Act (1988), which forms a core component of the appeal, has the potential of material financial consequences for the Commonwealth.
The applicant also sought, again, that the material contained in his interlocutory application be treated as his submissions on the application. Comcare did not seek to be heard.
Paragraphs [1]-[5] and [7] contain what I take to be the applicant’s arguments. So that I do not misstate their effect, I set them out here in full (omitting footnotes).
1. The Court’s lack of transparency, dereliction of duty and demonstrable bias force the Applicant to make this interlocutory application.
2. The Court simply ignored the Applicant’s attempts to gain transparency into the Court’s decisions.
3. The Court undermined the Applicant’s ability to participate fully in the appeal. Two issues demonstrate a dereliction of duty that could only prejudice a self-represented applicant:
a. The Court prioritised its own processes over the wellbeing of the Applicant.
b. The Court allowed the Respondent, with the authority of a national government, to deceive the Court by implying that the Applicant was causing unnecessary delay. The effect was to bully the Applicant into accepting the Respondent’s wishes in the production of the Appeal Books
4. The Court acted with overt bias:
a. The Court allowed the Respondent to make amended submissions with no questions, additional criteria or agreement from the Applicant.
b. By contrast, the Court required the Applicant to meet additional criteria and obtain the agreement of the Respondent prior to making amended submissions.
5. The Applicant notes the likelihood that administrative staff are responsible for each issue. Yet, the Court’s lack of transparency has the effect of irretrievably quashing the Applicant’s confidence in the impartiality of the Court.
…
7. Finally, the Applicant would apologise should the perception of bias and incompetence be unfair to either the Court’s administrative staff or the Justice himself.
d. The Applicant is certain that the Court will appreciate the cause of such sensitivity should it be able to apply even a minimum level of impartiality to considering the impact on the Applicant of a persistent lack of propriety on the part of the Tribunal, medical experts and the Australian Public Service.
e. The Applicant would further note the necessarily terrifying impact of such an overt act of bias as that displayed in relation to the parties’ amended submissions in the context of a final chance for justice after three years of litigious purgatory.
The settling of the appeal book indices was an administrative process supervised by a Registrar. It does not form part of the Court’s adjudication of the substantive issues in the proceeding. Nor does the inclusion (or not) of material in the appeal books determine whether it is considered by the Court: the Court will necessarily have regard to the material referred to by the parties in their submissions and may also (subject to the need to ensure procedural fairness) consider other parts of the material before the Tribunal and other authorities.
In the interests of seeking to ensure that my consideration of the substantive issues in the proceeding is not infected by any impression of the parties arising from their dealings with the Registry and each other, I have deliberately not engaged with the contents of the correspondence concerning the appeal books. I do not consider it useful or appropriate to engage, in the course of exercising judicial power in this proceeding, with whether further explanations should be given or apologies made concerning the Court’s administrative processes.
The applicant is correct in apprehending that I am responsible for the positions that were taken in respect of the filing of amended submissions. In retrospect, it would have been preferable for exactly the same process to have been followed in each case. However, it does not follow that there is a real possibility that a fair-minded observer with knowledge of the circumstances would apprehend that I might not be able to bring an impartial mind to deciding the issues that arise in the proceeding (cf, eg, QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 279 CLR 148 at [37]-[38] (Kiefel CJ and Gageler J)). The difference in treatment of the two sets of amended submissions arose because the amendment sought by Comcare was properly marked and inconsequential, whereas that sought by the applicant was not marked and its import was therefore unclear. In the latter case I considered it proper to seek clarity as to the scope of the proposed amendment and whether the other party needed an opportunity to respond. I have no doubt that the same steps would have been taken if the parties’ roles had been reversed.
While I do not doubt that the applicant genuinely perceives ill will and incompetence in the governmental institutions with which he has to deal (including, it would seem, the Court), and that this is a source of stress for him, that it not a sufficient basis for a judge to avoid performing the duty to hear and decide the case. Decisions on recusal on the ground of bias (actual or apprehended) should proceed by reference to principle rather than the demands or fears of individual litigants.
Finally, as to the proposed referral to the Chief Justice, I do not accept that there is any basis on which to apprehend a lack of professional or ethical integrity in the Court’s approach to the matter. Nor do I consider that the applicant’s (apparently genuine) fear of such deficiencies is a sufficient basis for seeking a direction from the Chief Justice. To the extent that the case raises real questions as to the interpretation of s 7(2) or (3) of the SRC Act (a matter as to which I do not yet have any concluded view), I am not aware of any reason why those questions should not be decided in the first instance by a single judge. Attention has not been drawn, for example, to an inconsistency between single judge decisions that calls for resolution by a Full Court.
For these reasons, the recusal application must also be dismissed.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kennett. Associate:
Dated: 17 June 2025
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