Ulla-Maija Dunkerley v Commonwealth of Australia and Comcare and Julia Gillard - [2012] ACTSC 49

ULLA-MAIJA DUNKERLEY v COMMONWEALTH OF AUSTRALIA and COMCARE and JULIA GILLARD

[2012] ACTSC 49 (30 March 2012)

NEGLIGENCE – personal injury – claim by Commonwealth employee against Commonwealth instrumentalities – statutory removal of right of action for personal injuries in respect of which defendants would otherwise be liable – exception requiring election by plaintiff – no election – no cause of action available – action dismissed

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 44, 45
Occupational Health and Safety Act 1989
Civil Law (Wrongs) Act 2002
Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth)
Work, Health and Safety Act 2011

Discrimination Act 1991
Sex Discrimination Act 1984 (Cth)
Disability Discrimination Act 1992 (Cth)

Austral Pacific Group Limited v Airservices Australia (2000) 203 CLR 136

No. SC 607 of 2011

Judge: Master Harper
Supreme Court of the ACT

Date: 30 March 2012

IN THE SUPREME COURT OF THE )
) No. SC 607 of 2011
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:ULLA-MAIJA DUNKERLEY
Plaintiff

AND:COMMONWEALTH OF AUSTRALIA
Defendant

AND:COMCARE
Second Defendant

AND:JULIA GILLARD
Third Defendant

ORDER

Judge:  Master Harper
Date:  30 March 2012
Place:  Canberra

THE COURT ORDERS THAT:

the action be dismissed.
the plaintiff pay the defendants’ costs of the application and of the action.

The defendants apply to have the plaintiff’s statement of claim struck out and the action dismissed.
The plaintiff commenced the action in September 2011 by originating claim with statement of claim annexed. The defendants are the Commonwealth of Australia, Comcare and Ms Julia Gillard, now the Prime Minister of Australia but sued in respect of events during 2008 when she was Deputy Prime Minister and Minister for Education, Employment and Workplace Relations.
In her statement of claim, the plaintiff says that she was at all relevant times a permanent employee of three Commonwealth departments. She recites that in June 2009 the Administrative Appeals Tribunal determined that on 24 October 2007 she suffered an adjustment disorder with anxious mood which was significantly contributed to by her employment, and that she was therefore entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth). She asserts that in breach of the Occupational Health and Safety Act 1989, the Civil Liability Act 2002 and the Antidiscrimination Act 1977, the departments in which she was employed rejected medical certificates, denied her access to her workplace and personal belongings, failed to ensure a safe workplace, threatened her with termination of salary, failed to implement a supported return to work and made her redundant. She says that this was misconduct, and that the departments should have appreciated that the misconduct was likely to cause her psychiatric injury.
Although the plaintiff does not say so in the statement of claim, I take it that she was employed at all material times within the Australian Capital Territory. The reference to the Civil Liability Act 2002 seems to be to a New South Wales statute, but I read it as intended to refer to the Civil Law (Wrongs) Act 2002.
The plaintiff’s reference to the Occupational Health and Safety Act 1991 is also unclear. She may have intended to refer to the Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth), or to the Occupational Health and Safety Act 1989 (ACT), since repealed and replaced by the Work, Health and Safety Act 2011. Confusingly, there is also a Commonwealth Work Health and Safety Act 2011.
The reference to the Antidiscrimination Act 1997 also seems misconceived. The plaintiff may have intended to refer to the Discrimination Act 1991 (ACT), or perhaps to one of the Commonwealth Acts such as the Sex Discrimination Act 1984 or the Disability Discrimination Act 1992. Where a plaintiff asserts a breach of legislation, the pleading should set out the section of the Act of which the defendant or defendants are alleged to have committed a breach, not simply the title of the Act. Unless the pleading descends to this level of detail, the defendant will not know the case to be met, and the court will not be able to identify the issues at trial. The pleading should also make it clear whether the breach of statute alleged is pleaded as an independent cause of action (breach of statutory duty) or merely as a particular of negligence.
The plaintiff says that Comcare failed in its responsibilities under the Occupational Health and Safety Act towards her, and that a number of senior officers (presumably of the employing departments) knew that the plaintiff’s health and safety were being endangered but were recklessly indifferent to this. She said that she raised concerns in May and August 2008 with Ms Gillard as Minister administering her employing department.
The plaintiff appears to assert in the statement of claim that the conduct of the defendants amounted to negligence and also to breach of contract, and that the conduct was intentional, exposing the defendants to awards of exemplary and aggravated damages. The plaintiff claims, in all, $2,000,000.00 by way of damages.
The stated grounds for the application by the defendants are that the statement of claim discloses no reasonable causes of action; will prejudice, embarrass and delay the fair trial of the proceedings; is frivolous, scandalous, unnecessary and vexatious; and is an abuse of the process of the court.
The defendants further say that in so far as the plaintiff purports to claim damages for personal injury suffered in the course of her employment with the Commonwealth, her action is barred by s 44 of the Safety, Rehabilitation and Compensation Act. They say that she claimed compensation pursuant to the Act in relation to the events leading to her incapacity for work on and from 21 July 2009. Her claim was rejected by Comcare on 8 December 2009. That decision was confirmed on review within Comcare on 11 February 2010, and by the Administrative Appeals Tribunal on 17 November 2010. An appeal from the decision of the Administrative Appeals Tribunal was dismissed by the Federal Court of Australia on 3 February 2012.
The only loss or damage for which the plaintiff claims damages in the action, as far as I can discern from the statement of claim, is personal injury in the form of psychiatric injury. Whether the claim is framed in contract or tort, it seems to me that it is an action for damages for personal injury.
The plaintiff has instituted an appeal to a full court of the Federal Court of Australia from the single-judge decision of 3 February 2012.
I have evidence in the form of an affidavit by the solicitor with the conduct of the matter within the office of the Australian Government Solicitor on behalf of the defendants, that the plaintiff has not made an election under s 45 of the Safety, Rehabilitation and Compensation Act. She completed and lodged a workers’ compensation claim form with Comcare on 1 September 2009 claiming as her injury or illness, “aggravation to adjustment disorder with anxious mood”. The affidavit verifies by reference to exhibited documents the rejection of the claim and the outcome of the various reviews and appeals.
Section 44 of the Safety, Rehabilitation and Compensation Act provides that subject to s 45, an action for damages does not lie against the Commonwealth, a Commonwealth authority or a Commonwealth employee in respect of an injury sustained by a Commonwealth employee in the course of her employment. Section 45 allows an employee to make an election in writing to institute an action or proceedings against the Commonwealth or a Commonwealth instrumentality for damages for non-economic loss. Such an election, to be effective, must be made before an amount of compensation under the Act is paid to the employee. The election is irrevocable. Once it is made, the employee is not entitled to compensation under the Act. The evidence is that the plaintiff has never made an election under s 45. It may be said that her lodgement of a claim form with Comcare was inconsistent with making such an election. Telstra Corporation Ltd v Flynn (2002) 55 NSWLR 303 is authority for the proposition that any entitlement to make an election under s 45 is lost where a claim for compensation is made and rejected: Beazley JA at [45], Hodgson JA at [50, 51].
In the absence of any evidence that the plaintiff has made an election under s 45, s 44 of the Act operates to deny the plaintiff any cause of action against the defendants. In Austral Pacific Group Limited v Airservices Australia (2000) 203 CLR 136, Gleeson CJ, Gummow and Hayne JJ at [21] held that the effect of s 44 is to deny from the outset the existence of a cause of action in respect of the relevant events. It is a substantive and not merely procedural provision, and its effect is not to bar the action but to extinguish it.
It was the clear intention of the legislature in enacting the Safety, Rehabilitation and Compensation Act in 1988 that Commonwealth employees would no longer, except in very limited circumstances, have any right to bring proceedings for damages for personal injury against the Commonwealth or a Commonwealth instrumentality. In return, Commonwealth employees were given by the Act somewhat more generous entitlements to workers’ compensation than applied previously, and continue to apply in the private sector.
I have given consideration to whether there would be any point in striking the statement of claim out and permitting the plaintiff to re-plead. I have come to the conclusion that there would be no utility in adopting this course. The nature of the plaintiff’s claim is apparent from the originating claim, and can have no prospect of success.
The action must be dismissed. Costs will follow the event.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 30 March 2012

Plaintiff:  In person
Counsel for the defendants:  Mr RL Crowe SC
Solicitors for the defendants:  Australian Government Solicitor
Date of hearing:  16 March 2012
Date of judgment:  30 March 2012