FEDERAL COURT OF AUSTRALIA

Clement v Comcare [2008] FCA 1780

KRISTINE CLEMENT v COMCARE, AUSTRALIAN BUREAU OF STATISTICS and COMMONWEALTH OF AUSTRALIA

ACD 4 of 2008

KRISTINE CLEMENT v COMCARE

ACD 5 OF 2088

STONE J

1 DECEMBER 2008

CANBERRA

THE COURT ORDERS THAT:

1.                  The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

THE COURT ORDERS THAT:

1. The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     The present application is for an extension of time within which to appeal from interlocutory orders made by Emmett J on 20 December 2007 and for leave to appeal from those orders.  His Honour made orders in proceeding ACD 5 of 2007 and in ACD 19 of 2007.  In the latter proceeding, ACD 19 of 2007, his Honour ordered that the application be dismissed.  In the former proceeding, ACD 5 of 2007, his Honour made the following orders:

1.                  Leave to file the proposed amended application of 7 September 2007 be refused.

2.                  The proceeding so far as it claimed relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) against the first respondent be dismissed.

3.                  All other claims for relief against the First Respondent and all claims for relief against the Third and Fourth Respondents as made in the application filed on 1 February 2007 be struck out.

4.                  The amended application purportedly filed on 7 September 2007 be struck out.

5.                  The amended applications of 22 March 2007, 28 March 2007, 19 April 2007 and 24 May 2007 be struck out.

6.                  Leave be granted to the Applicant to file an amended application as against the second respondent claiming relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect of the failure of the Second Respondent to make a payment to the Applicant under section 33 of the Financial Management and Accountability Act 1997 (Cth).

7.                  Except as provided above the Applicant shall not file any further documents without leave of the Court.

2                     Initially, the applicant filed notices of appeal in relation to both matters.  She sought orders setting aside his Honour’s orders and asked for summary judgment in the amount of $2,668,000.  The draft notices of appeal were substantially identical and listed over 50 grounds of appeal.  The respondents in both matters filed notices of motion that the appeals be dismissed as incompetent in that leave to appeal had been neither sought nor granted and the notices of appeal disclosed no meaningful grounds for appeal.  In the alternative they relied on s 31A of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) on the basis that the appeals had no reasonable prospects of success.

3                     It is clear that his Honour’s orders in both matters are interlocutory and therefore that no appeal can be brought from those orders without the leave of the Court; Federal Court Act, s 24(1A).  This issue was discussed at a directions hearing on 6 February 2008.  The applicant initially took issue with the respondents’ submissions that his Honour’s orders were interlocutory but did not press the point and, on 13 February 2008, she filed applications for leave to appeal in both matters.  Given that leave was sought more than a year after the date of his Honour’s orders the applicant also requires an extension of time within which to seek such leave, the period being 7 days from the date on which interlocutory orders are made; O 52 r 10(2A)(b) Federal Court Rules.

4                     Both proceedings before Emmett J concerned claims by the applicant for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).

The proceedings

5                     His Honour explained that the primary claim for relief in proceeding ACD 5 of 2007 was for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) of Comcare's decision to deny compensation payments to the applicant for the period 1 September 1994 to 10 November 2006.  His Honour added that the application also purported to include applications under ss 39B(1A)(b) and 39B(1A)(c) of the Judiciary Act 1903 (Cth), s 32 of the Federal Court Act (invoking the Court’s associated jurisdiction) and an application invoking the inherent accrued jurisdiction of the Court. 

6                     Emmett J's account of the progress of this matter, in [3]-[6] of his judgment, shows that it was anything but straightforward:

At the first directions hearing in ACD5 of 2007 on 22 February 2007, the Court made orders by consent permitting the Applicant to file and serve an amended application in order to address deficiencies in the application filed on 1 February 2007.  On 22 March 2007 an amended application was filed.  That was further amended by a document filed, without objection, on 28 March 2007.  On 19 April 2007, the Applicant filed a further amendment to the amended application.  On 10 May 2007, the Court made further orders by consent whereby further amendments were to be made to the application in proceeding ACD 5 of 2007.  On 24 May 2007, a further amendment was filed.  On 24 July 2007, the Applicant filed an application for leave to make yet further amendments. 

On 20 April 2007, the Bureau and the Commonwealth filed a notice of motion seeking orders that proceeding ACD5 of 2007 be dismissed, pursuant to s 31A of the Federal Court Act. …

On 31 August 2007, the Court directed the Applicant to file, in proceeding ACD5 of 2007, no later than 7 September 2007, a proposed further amended application incorporating particulars with respect to each separate ground to be relied on under s 5 of the ADJR Act.  The Court directed Comcare and the Bureau to file detailed written submissions in support of their application for summary dismissal, on the assumption that leave were granted to file the proposed further amended application. 

On 7 September 2007, the Applicant filed a proposed further amended application in ACD5 of 2007.  The document runs to some 54 pages.  In addition, there are two attachments to the document.  On 9 October 2007, Comcare, the Bureau and the Commonwealth filed written submissions in support of the motion for summary dismissal of proceeding ACD 5 of 2007.  On 29 October 2007, the Applicant filed written submissions in response, running to some 69 pages.

7                     In ACD 19 of 2007 the applicant sought review under the ADJR Act of Comcare’s decision of 1 May 2007.  On that date Comcare affirmed its decision that the applicant is not entitled to compensation under the SRC Act for the period from 10 November to 10 February 2007.  By notice of motion filed on 24 June 2007, Comcare sought orders that this proceeding be dismissed pursuant either to s 31A of the Federal Court Act or pursuant to s 10 (2)(b)(ii) of the ADJR Act.

8                     His Honour observed that “the decisions in both proceedings cover much the same ground” and that “the primary question appears to be whether the Applicant is entitled to compensation as a result of incapacity for work with the Bureau”.  His Honour observed that the only difference between the two appeared to be the period of any incapacity.  This overlap explains why the applications were heard together.

Emmett J’s reasons

9                     His Honour examined in some detail the grounds of appeal under s 5(1) of the ADJR Act as set out in the 7 September 2007 application and the particulars of those grounds.  He stated:

The material that I have briefly summarised above indicates that the author of the amended application has no real comprehension of the nature of judicial review that is authorised by the ADJR Act.  I am unable to discern identifiable grounds within s 5(1) of the ADJR Act upon which the decisions under review would be set aside.  However, it is not necessary to form a final view on the prospects of success of any of the grounds, since I would refuse any relief on the discretionary ground in s 10(2)(b)(ii) of the ADJR Act.

10                  Section 10(2)((b)(ii) of the ADJR Act provides that the Court, in its discretion, may refuse to grant an application made under that Act if adequate provision is made by any other law under which the applicant may seek review of the relevant decision by another tribunal, authority or person.  His Honour observed that s 64 of the SRC Act gives the Administrative Appeals Tribunal authority to review decisions of Comcare made under s 62 of that Act.

11                  In the circumstances his Honour considered it was an appropriate exercise of the Court’s discretion to refuse to grant relief under the ADJR Act.  As his Honour observed:

That course has the distinct advantage of avoiding a significant waste of costs and Court time in considering the voluminous and misconceived contentions advanced on behalf of the Applicant in support of relief under the ADJR Act.

12                  In relation to other claims in proceeding ACD 5 of 2007, his Honour held that the proposed further amended application of 7 September 2007 was “virtually incomprehensible” and had “clearly enough been put together by cut and paste method without any attempt at careful checking and proofreading”.  His Honour described aspects of the application to illustrate his point.  He concluded that it was “difficult to deal with the cause of action on any meaningful basis”.

13                  In so far as his Honour was able to understand the claims, he held that “as presently formulated” they had no reasonable prospect of success and stated his conclusion thus:

The document of 7 September 2007 is, at this stage, no more than a proposed further amended application.  Leave to file it has not yet been granted.  The Applicant should not have leave to file the proposed further amended application.  In so far as the Registry has treated the document as having been filed, it should be struck out.

Since I propose to dismiss proceeding ACD 5 of 2007 in so far as it seeks ADJR Act relief against Comcare, there would be no utility in permitting the Applicant to file a further document pleading, in some more comprehensible form, the various other claims against Comcare, the Bureau and the Commonwealth that are ventilated in the proposed further amended application.  The claims in negligence, deceit and breach of duty are not appropriately appended to the judicial review proceeding as presently constituted.  Proceeding ACD 5 of 2007 should be dismissed in so far as it relates to those claims.

However, that dismissal should not operate as a bar.  If the Applicant were to commence another proceeding, by filing a properly pleaded statement of claim in a court of competent jurisdiction, seeking damages for breach of a duty of care, for deceit or for negligence, it would be a matter for the relevant court to deal with any application made by the defendant or respondent to any such a proceeding.

Conclusion

14                  As the above account indicates, his Honour gave careful consideration to the issues arising in both proceedings before him.  I am satisfied that the orders made by his Honour in both proceedings were in entirely appropriate.  Appeals from the orders would have no prospect of success.  For this reason the application for an extension of time and for leave to appeal is dismissed with costs.

Associate:

Dated:         1 December 2008