FEDERAL COURT OF AUSTRALIA

Von Stieglitz v Comcare [2012] FCA 55

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the respondent on 30 January 2012 be allowed.

2.    Pursuant to s 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) the originating application in this proceeding filed on 16 January 2012 be dismissed.

3.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules.

REASONS FOR JUDGMENT

1        On 16 January 2012 the applicant filed an originating application in this Court for judicial review of a reviewable decision dated 19 December 2011 by the respondent. The respondent, by way of interlocutory application, seeks an order under s 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for the Court to exercise its discretion under that section and dismiss the matter because, in the words of the section:

adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.

2        The respondent submits that the applicant’s complaint is more appropriately pursued in the Administrative Appeals Tribunal (AAT) under s 64 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) and that the applicant is still within time to seek that relief. The respondent provided a chronology for the assistance of the Court. The chronology shows the following events in the background to the present application. Briefly, those events are that on 15 April 2010 the AAT affirmed a Comcare decision rejecting the applicant’s claim for compensation under s 14 of the SRC Act for a work-related psychological condition resulting from her employment as a senior reporter at the High Court of Australia.

3        On 9 February 2011 the applicant submitted a fresh claim to Comcare for compensation under that section again for a psychological condition as a result of the same employment however, according to the applicant’s submission, arising from a different event. On 27 May 2011 Comcare made a determination in relation to that application of 9 February. The determination was made under s 60 of the SRC Act and was that the applicant was not entitled to the compensation sought. The applicant requested a reconsideration of Comcare’s decision on 20 July and made submissions in support of her request on 29 August and 16 December 2011. On 19 December 2011 Comcare made the reviewable decision which is the subject of the applicant’s originating application in this Court.

4        The reviewable decision was made under s 62 of the SRC Act. It affirmed Comcare’s determination of 27 May 2011 that the applicant is not entitled to compensation under s 14 of the SRC Act for a psychological condition as a result of her employment at the High Court. Under s 64 of the SRC Act the applicant is entitled to appeal to the Administrative Appeals Tribunal for a review of that decision however the applicant filed the application in this Court which led to the present interlocutory application.

5        The issue is a matter for discretion of the Court. The matter has been considered on previous occasions in this Court and in particular in Clement v Comcare [2007] FCA 2039 by Emmett J in a case which was, on all relevant points, the same as the present. Emmett J considered the discretionary question at [35] and following of his reasons and said at [37]:

In a proceeding under s 64, the Tribunal [Administrative Appeals Tribunal]

has jurisdiction to review the merits of the decisions of Comcare under review. The Tribunal would, in the ordinary course, receive evidence, including expert medical evidence, and submissions on behalf of both parties and would then make a decision, on the merits, concerning the Applicant’s entitlement to compensation under the Compensation Act. Review by the Tribunal of Comcare’s decisions has no costs implications for the Applicant.

His Honour continued at [38]:

In all the circumstances, there appears to be no good reason why the Applicant should wish to pursue either proceeding …… in so far as they seek judicial review of decisions that are reviewable, on the merits, by the Tribunal. Accordingly, I consider that the appropriate course, in the exercise of the Court’s discretion, would be to refuse to grant any relief under the ADJR Act in relation to the decisions that are the subject of both proceedings. 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.

6        In submissions before me the applicant sought to distinguish Clement v Comcare on the basis that Emmett J had expressed the opinion that the application before him involved, “voluminous and misconceived contentions”. While that issue was certainly a matter of prime consideration for his Honour, and I have no reason to regard the present application as being in the same category, it is still the case that the other issues raised by his Honour are pertinent. In my view the limited jurisdiction of this Court to make decisions on the facts that may be necessary for a proper application of the law suggests that the appropriate forum for resolution of the matter, at least at this stage, is the Administrative Appeals Tribunal.

7        As Emmett J said, that course “has no costs implications for the Applicant” which is certainly not the case in this Court. A disadvantage of the present application continuing in this Court is that decisions on law may have to be made which might need to be reconsidered should there be any review by the Administrative Appeals Tribunal. That is an unnecessary exercise and one which has the potential to, at the very least, create inconsistencies and difficulties in determining questions of law. For those reasons I propose to allow the application made by the respondent and dismiss the application under s 10(2)(b)(ii) of the ADJR Act. The respondent has indicated that it is not seeking a costs order and therefore I will order that there be no order as to costs.

Associate:

Dated:    3 February 2012