FEDERAL COURT OF AUSTRALIA

Dunkerley v Comcare [2015] FCA 1076

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the Respondent in respect to the Interlocutory Application filed on 3 August 2015.

3.    No order for costs is made in respect to the Interlocutory Application filed on 2 July 2015.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This case has an unfortunate history.

2    Ms Dunkerley claims compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “Safety, Rehabilitation and Compensation Act”). In June 2014 the Administrative Appeals Tribunal (“the Tribunal”) affirmed a decision refusing compensation: Re Dunkerley and Comcare [2014] AATA 381. An appeal from that decision has been dismissed: Dunkerley v Comcare [2015] FCA 392.

3    In May 2015 Ms Dunkerley filed a Notice of Appeal. She is unrepresented. The Notice of Appeal was obviously drafted by her – or by someone who has no familiarity with how such an appeal should be drafted. The Notice of Appeal contains some 17 differently-expressed challenges to the decision of the primary Judge. But the manner in which the Grounds are expressed, perhaps, matters not.

4    On 1 June 2015 Comcare filed a Notice of Objection to Competency. It contended that the Court does not have power to make the orders sought by Ms Dunkerley. On 4 June Comcare filed a Notice of Contention maintaining that Ms Dunkerley had not identified a “question of law” for the purposes of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the “Administrative Appeals Tribunal Act”).

5    Now before the Court is an Interlocutory Application filed by Comcare on 3 August 2015 seeking an order that the appeal be dismissed.

6    The appeal is to be dismissed pursuant to s 25(2B)(bb)(i) of the Federal Court of Australia Act 1976 (Cth) (the “Federal Court Act”) and r 36.74(1)(a) of the Federal Court Rules 2011 (Cth) (the “Federal Court Rules”).

The history of the proceeding to-date

7    In October 2007 Ms Dunkerley suffered an injury whilst employed by the Commonwealth Department of Education, Science and Training. She claimed to suffer from an “adjustment disorder”. Albeit not until sometime later, in June 2009 Comcare ultimately accepted liability.

8    Ms Dunkerley remained off work until May 2008 when she was transferred to the Department of Industry, Innovation, Science, Research and Tertiary Education. She began working full-time within that Department in January 2009.

9    Curiously enough, however, in March 2009, Ms Dunkerley was seen by a psychiatrist (Dr George) who concluded that she no longer presented with any psychiatric diagnosis. Dr George concluded that Ms Dunkerley had full capacity to return to work.

10    In June 2009 Ms Dunkerley applied for a more senior position within the Department of Industry, Innovation, Science, Research and Tertiary Education. She had been persuaded to apply for that position by one of her superiors, Mr Schwager. She was advised on 20 July 2009 of the fact that her application had been unsuccessful.

11    In September 2009 she lodged a claim for compensation for “an aggravation to adjustment disorder with anxious mood” which she first noticed on 20 July 2009 and for which she first sought treatment on 21 July 2009. Comcare accepted that her condition was an aggravation of her pre-existing condition but further concluded that the claim failed by reason of s 5A(1) of the Safety, Rehabilitation and Compensation Act. That sub-section excludes from the definition of injury “a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment…”.

12    Ms Dunkerley unsuccessfully sought review of Comcare’s decision by the Administrative Appeals Tribunal: Re Dunkerley and Comcare [2010] AATA 915. Her appeal from that decision pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the “Administrative Appeals Tribunal Act”) was also unsuccessful: Dunkerley v Administrative Appeals Tribunal [2012] FCA 41. A further appeal to the Full Court was also unsuccessful: Dunkerley v Comcare [2012] FCAFC 132, (2012) 131 ALD 1.

13    Whilst these proceedings were winding their way from the initial decision of the Tribunal in November 2010 through to the decision of the Full Court in September 2012, Ms Dunkerley had declined to comply with two directions to return to work, given in April and May 2012. She declined, claiming that the workplace was unsafe because Mr Schwager was her divisional head. Her employment was terminated in June 2012.

14    An application claiming unfair dismissal pursuant to s 394 of the Fair Work Act 2009 (Cth) was dismissed by Fair Work Australia in December 2012: Dunkerley v Department of Industry, Innovation, Science, Research and Tertiary Education [2012] FWA 10220.

15    Ms Dunkerley then sought to re-agitate her claim to compensation suffered as a result of the injury that had occurred in October 2007. Comcare concluded that there was no longer any basis upon which compensation was payable. An application in May 2013 by Ms Dunkerley for internal review was unsuccessful. A further independent review in June 2013 was also unsuccessful.

16    Again Ms Dunkerley sought review by the Tribunal. That application for review was resolved in June 2014 when, again, the Tribunal affirmed Comcare’s decision to decline compensation: Re Dunkerley and Comcare [2014] AATA 381. The Tribunal in its reasons for decision identified the claim for compensation which was sought to be reviewed as follows:

[13]    On 3 and 5 May 2013, Ms Dunkerley pressed her claims for compensation in relation to her accepted Adjustment Disorder injury in 2007. By primary determination and on reconsideration, Comcare decided that Ms Dunkerley did not suffer from her compensable condition on or after 2 March 2009 and rejected her claims. It is this that is the subject of Ms Dunkerley’s present application for review.

The Tribunal identified the entitlements being claimed by Ms Dunkerley as follows:

[19]    Presently, two heads of entitlement are in issue – entitlement to compensation for medical treatment expenses under s 16, and entitlement to compensation for incapacity for work under s 19.

The Tribunal addressed these statutory provisions, reviewed the facts and ultimately concluded that any residual incapacity for work could not be attributed to the injury in October 2007. It expressed this conclusion as follows:

[46]    I am satisfied that the incident involving Mr Schwager on or about 20 July 2009 entirely overtook and displaced any lingering effects of her 2007 injury. Any residual incapacity for work and any increased susceptibility to suffer psychiatric symptoms that may be attributed to the 2007 injury, if they existed at all, were very minor contextual factors in what occurred on or about 20 July 2009 and they were not operative or effective factors.

It was on 20 July 2009 that a letter was forwarded to Ms Dunkerley advising her that her application for promotion was unsuccessful. The claim for compensation following that “incident” was the subject of the first decision of the Tribunal in 2010 and thereafter the decision at first instance and on a further appeal to this Court in 2012.

17    Ms Dunkerley appealed the June 2014 decision of the Tribunal to this Court pursuant to s 44 of the Administrative Appeals Tribunal Act. Section 44(1) of that Act provides that an appeal may be brought “on a question of law”. The existence of a “question of law is … not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself”: TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (1988) 82 ALR 175 at 178 per Gummow J.

18    In April 2015 a single Judge of this Court dismissed her appeal: Dunkerley v Comcare [2015] FCA 392. The learned primary Judge in his reasons for decision summarised the contentions then sought to be agitated as follows:

[21]    Ms Dunkerley’s contentions were as follows:

(a)    the medical certificates she had obtained at the time of the incident with Mr Schwager had all referred to the condition she had as an exacerbation of the pre-existing 2007 adjustment disorder. Once those certificates were provided to Comcare neither it nor, subsequently, the Tribunal were permitted to approach the matter on the basis that the earlier 2007 injury was not relevant;

(b)    the Tribunal had used the opinion of doctors other than those who had issued the certificates attached to her claim form, and in particular that of Dr George of 10 March 2009, to arrive at the view that the 2007 injury was not causing any ongoing disability. This, according to Ms Dunkerley, was not permitted under the Act; and

(c)    the hearing before the Tribunal had involved a miscarriage of justice, in that Comcare had failed to clarify for the Tribunal what her case was. This was said to be a breach of Comcare’s obligations as a model litigant.

His Honour rejected each of these contentions. Indeed, his Honour formed the view that the appeal was “devoid of merit”. The first contention was rejected on the basis that neither Comcare nor the Tribunal were “bound by the medical certificates [Ms Dunkerley] obtained on the occurrence of the events…”: [2015] FCA 392 at [22] to [23]. The second contention was rejected because it either was the same point as was sought to be raised in the first contention or because it impermissibly sought review of the Tribunal’s findings of fact: [2015] FCA 392 at [24]. And the final point was rejected because his Honour was not prepared to accept that Comcare had behaved in any way “inappropriately” and because a breach of the Model Litigant Guidelines “has no consequences in terms of civil litigation”: [2015] FCA 392 at [26].

19    It is this decision of the primary Judge which is the subject of the Notice of Appeal filed by Ms Dunkerley in May 2015. Subject to an order being made by a single Judge of the Court pursuant to s 25(2B) of the Federal Court Act, an appeal from a decision of a single Judge would normally proceed to a hearing before a Full Court of this Court constituted by three Judges.

Steps to prepare the appeal for hearing & interlocutory applications

20    To ready the appeal for hearing before a Full Court has not proven an easy task.

21    A Case Management Hearing before the Court as presently constituted was first conducted on 10 June 2015. Directions were then made (inter alia) for:

    the completion of an Appeal Book by 26 June 2015; and

    Ms Dunkerley to file an Outline of Submissions by 9 July 2015.

A direction was also made:

    listing the proceeding for further directions on 21 July 2015.

No Appeal Book has been prepared and Ms Dunkerley has filed no Outline of Submissions. An option left open on 10 June was whether Comcare’s Notice of Objection to Competency and its Notice of Contention should be heard in advance of the hearing of the appeal or stood over for hearing at the same time as the hearing of the appeal.

22    In addition to the Interlocutory Application now before the Court, on 2 July 2015 Comcare had previously filed an Interlocutory Application seeking (inter alia) an order pursuant to s 37AO of the Federal Court Act dismissing the appeal. That provision confers power upon the Court to make an order dismissing a proceeding where it is “satisfied” that a proceeding is “vexatious”.

23    Late in the afternoon of 17 July 2015 Ms Dunkerley e-mailed the Registry of this Court stating as follows:

To all parties,

Please be aware that I will not be attending the directions hearing on 21 July, nor did I have sufficient time or funds to obtain legal representation.

As previously advised I am available and prepared from 17 August onwards.

I have no objection to the respondent being given sufficient time to complete a legal process to ensure a fair outcome. However, I seek the same consideration both from the respondent and the court in return.

Ulla-Maija Dunkerly

24    On 17 August 2015 Comcare filed a document titled an Outline of Submissions. Also on the same day, Ms Dunkerley filed:

    a response to Comcare’s submissions; and

    “submissions in reply to respondent’s interlocutory application”.

The failure to comply with directions

25    It is concluded that the appeal from a decision of a single Judge of this Court to the Full Court should be dismissed pursuant to s 25(2B)(bb)(i) of the Federal Court Act and r 36.74(1)(a) of the Federal Court Rules.

26    Section 25(2B)(bb)(i) provides as follows:

(2B)    A single Judge (sitting in Chambers or in open court) or a Full Court may:

…

(bb)     make an order that an appeal to the Court be dismissed for:

(i)    failure to comply with a direction of the Court;

…

(2BB)    An application for the exercise of a power mentioned in subsection (2B) must be heard and determined by a single Judge unless:

(a)    a Judge directs that the application be heard and determined by a Full Court; or

(b)    the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it is appropriate for it to hear and determine the application.

(2C)    The Rules of Court may make provision enabling matters of the kind mentioned in subsection (2B) to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing either with or without the consent of the parties.

Rule 36.74 of the Federal Court Rules provides as follows:

Application to dismiss appeal

(1)    A respondent may apply to the Court for an order that the appeal be dismissed for the failure by an appellant to do any of the following:

(a)    comply with a direction of the Court;

    …    

27    There can be no doubt that Ms Dunkerley failed to comply with the directions made on 10 June 2015 requiring the preparation and filing of an Appeal Book and the subsequent filing of an Outline of Submissions by 9 July 2015.

28    In many cases there may be no greater impediment to a Full Court properly considering the merits of an appeal than the absence of those materials being compiled upon which an appellant wishes the Full Court to proceed. Although each case depends upon its own facts and circumstances, it should be noted that the failure to prepare an Appeal Book also enlivened the exercise of the discretion adversely to the appellant in Pavlic v Macquarie Leasing Pty Ltd [2015] FCA 733.

29    In the circumstances of the present appeal, the preparation of an Appeal Book would have been a simple exercise. There would, presumably, be a limited number of documents to be compiled, including:

    the decision the subject of appeal to the Tribunal, together with the documents filed with the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act;

    the decision of the Tribunal;

    the Notice of Appeal from the decision of the Tribunal;

    the reasons for decision of the primary Judge; and

    the Notice of Appeal filed in this Court.

It was because there were such a limited number of documents that would need to be included within an Appeal Book that the direction made on 10 June 2015 was expressed in the form of an Appeal Book to be compiled, rather than the preparation of a draft index beforehand.

30    Given the fact that Ms Dunkerley was unrepresented on 10 June 2015, other courses open to the Court included:

    dispensing with any requirement to file an Appeal Book; and/or

    requiring Comcare to provide a bundle of documents upon which the hearing of the appeal could proceed.

But such other courses were not pursued and the fact remains that Ms Dunkerley failed to comply with the direction for the completion of an Appeal Book.

31    Of greater concern, potentially, is the failure on the part of Ms Dunkerley to file an Outline of Submissions. The primary Judge summarised the issues he thought were raised by Ms Dunkerley’s appeal from the Tribunal: [2015] FCA 392 at [21]. In the absence of an Outline of Submissions, it would be difficult for the Full Court properly to consider:

    the “question of law” sought to be raised on appeal from the Tribunal and whether the formulation by the primary Judge of his understanding of the arguments in need of resolution accurately reflected Ms Dunkerley’s understanding of how she sought to present her case; and

    the appellable error said to have been committed by the primary Judge.

Although such submissions as were filed out of time by Ms Dunkerley on 17 August 2015 address to some limited extent the factual issues which she seeks to canvass on appeal, they fail to provide any real insight into the “question of law” which founded the initial appeal from the decision of the Tribunal.

32    Whatever importance ultimately may attach to Ms Dunkerley’s failure to comply with the directions made on 10 June 2015 with respect to the proper conduct of the hearing of the appeal, the fact remains that she failed to comply.

33    This failure constitutes a “failure to comply with a direction of the Court” for the purposes of s 25(2B)(bb)(i) and r 36.74(1)(a).

The manner of exercise of discretion

34    Neither s 25(2B)(bb)(i) nor (unsurprisingly) r 36.74(1) of the Federal Court Rules compels the dismissal of an appeal for failure to comply with a direction. Even where a failure to comply with a direction of the Court has been established, the Court retains a discretion. Both provisions state that the Court “may” make an order.

35    It is submitted on behalf of Comcare that the discretion should be exercised in favour of dismissing the appeal primarily by reason of:

    the absence of any explanation provided by Ms Dunkerley as to her reasons for non-compliance; and

    the absence of any merit in the appeal itself.

Ms Dunkerley takes issue with both submissions.

The absence of explanation

36    As to the former, she maintained during the hearing of the present Interlocutory Application that she had sought the assistance of Comcare in the preparation of the Appeal Book and that such assistance had been refused. The hearing was adjourned in order for Comcare to produce any requests for assistance and any responses from Comcare. Those documents included an exchange of emails on 15 September 2014 and a later exchange of emails between 10 and 15 June 2015. The latter exchange of emails exposes Comcare providing a “draft index” and clarification as to why the entire transcript was not to be included – the explanation being that Comcare sought to confine the transcript to the evidence that was given as opposed to “general discussion or submissions made by the parties”. Although a separate response which stated that Comcare “opposes your request that it complete the index and appeal books on your behalf” was perhaps a correct statement of where responsibility lay, it was a singularly unhelpful response to an unrepresented appellant. Whatever other finding may be made, the exchange of emails in June 2015 does provide some explanation of why there was non-compliance with the direction to complete an Appeal Book.

37    But that which remains unexplained is why Ms Dunkerley did not file, even if belatedly, her own compilation of documents upon which she wished the Full Court to proceed. She had the benefit of Comcare’s “draft index” and could have filed such documents in addition to those proposed by Comcare had she so wished. Although unrepresented, Ms Dunkerley is clearly a person with great command over the facts the subject of the present dispute. Her failure to comply with the direction to file an Outline of Submissions by 9 July 2015, a direction made in an attempt to give greater clarity to the otherwise discursive and unhelpful manner in which her Grounds of Appeal were expressed, remains unexplained. If there was some purpose sought to be achieved by Ms Dunkerley in seeking to have the transcript of the proceeding before the Tribunal included in any Appeal Book, that purpose also remains unexplained.

The lack of merit in the Grounds of Appeal

38    As to the latter contention advanced on behalf of Comcare, it is respectfully concluded that the appeal is without merit.

39    Had there been any merit in the appeal, it may have been appropriate to make orders rectifying the past non-compliance and allowing the appeal to proceed to hearing before a Full Court.

40    In concluding that the appeal has no merit, consideration has been given to:

    the 17 Grounds of Appeal identified in the Notice of Appeal; and

    the oral submissions advanced by Ms Dunkerley on the hearing of the present Interlocutory Application

read against the backdrop of:

    the reasons for decision of the Tribunal; and

    the reasons for decision of the primary Judge.

Given the fact that Ms Dunkerley was unrepresented, she was invited to draw the Court’s attention to those parts of the reasons for decision of the primary Judge which she maintained expose error. Contrary to an assertion by Ms Dunkerley in an email exchange with Comcare in June 2015, the recurring concern of the Court was to attempt to identify the errors she sought to rely upon. None were readily apparent from the reasons for decision of the primary Judge and the Notice of Appeal was, with respect, more discursive than informative. Unconfined by the Grounds of Appeal, Ms Dunkerley submitted that the errors of the primary Judge were to be found in:

    his Honour’s conclusion that the appeal from the decision of the Tribunal was “devoid of merit” and his rejection of Ms Dunkerley’s argument that the Tribunal was “bound by the medical certificates she obtained on the occurrence of events…”: [2015] FCA 392 at [22]; and

    his Honour’s conclusion that Comcare had not “behaved in any way inappropriately…”: [2015] FCA 392 at [25] to [26].

However the appellable error be expressed, either by reference to the 17 Grounds of Appeal or the further oral submissions, they are without substance.

41    If attention is confined to the Grounds of Appeal as expressed in the Notice of Appeal, Ms Dunkerley’s appeal is without substance either because:

    however the Grounds of Appeal may be expressed, no appellable error is exposed by the reasons for decision of the primary Judge; and/or

    the purported Grounds of Appeal seek to canvas arguments not raised before the primary Judge and Ms Dunkerley should be confined to the manner in which she conducted her case at first instance.

42    As to the former of these two reasons, each of the reasons given by the primary Judge in respect to the three issues posed for resolution were clearly correct. As to the latter of these two reasons, it is well-recognised that a party should normally be confined to the manner in which a case is conducted at first instance: Metwally v University of Wollongong (1985) 59 ALJR 481 at 483 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ; Summers v Repatriation Commission [2015] FCAFC 36 at [93], (2015) 145 ALD 30 at 56 to 57 per Kenny, Murphy and Beach JJ. This Court when entertaining an appeal from a single Judge should not become a de facto Court of first instance with the prior hearing being reduced to a “preliminary skirmish”: Coulton v Holcombe (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ.

43    If attention is confined at least initially to the Notice of Appeal, there is no substance to Ground 1 which alleges a “miscarriage of justice”. At best, it is an introductory Ground to the more specific challenges set forth in Grounds 2 to 17.

44    Some of the remaining 16 Grounds of Appeal, being Grounds 2, 3, 5, 7, 8, 9 and 14, may have a passing correlation to the arguments advanced before the primary Judge.

45    Grounds 2, 3, 5, 7, 8 and 9, for example, have some correlation to the third of the three issues canvassed before the primary Judge, namely Comcare’s alleged “breach” of the Model Litigant Guidelines: Legal Services Directions 2005 (Cth), App B. Although those Guidelines have been issued pursuant to s 55ZF of the Judiciary Act 1903 (Cth), it may be noted that they have their origin in the “old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects”: Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 342 per Griffith CJ. See also: LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90 at [42], (2012) 203 FCR 166 at 176 per North, Logan and Robertson JJ. Ground 9, for example, asserts that the primary Judge was in error in concluding that “a breach of the model litigant requirements has no consequences in terms of civil litigation”: [2015] FCA 392 at [26]. That conclusion, Ground 9 contends, “contradicts the finding of the court in Morley & Ors v Australian Securities and Investments Commission which stated that the principle is ‘not limited to the criminal law’ and extends to civil practice and procedure”.

46    Although a departure from the Model Litigant Guidelines may give rise in an appropriate case to a “question of law” susceptible to appeal under s 44 of the Administrative Appeals Tribunal Act by reason of (for example) a denial of procedural fairness, any reliance upon these Guidelines necessarily fails in the present case because there has been no departure from those Guidelines.

47    Ground 14 also has some haunting correlation to the first of the three issue resolved by the primary Judge. But no error is exposed in the reasons of the primary Judge. The point being made by the primary Judge was that Comcare could reassess a claim. If there be substance in the contention that there was no “fresh evidence” which could found any reassessment of Ms Dunkerley’s claim and that any such evidence had already been considered, the fate of that assessment was determined by the 2010 decision of the Tribunal: [2010] AATA 915.

48    Ground 4 contends that the “Court made an error of law when it failed to look at the medical certificate to determine whether the certificates were copied”. Any failure to look at a medical certificate, be it an original medical certificate or a copy, does not of itself give rise to any error of law. Any such failure in the present case had no relevant impact upon the findings made. Grounds 10, 11, 12 and 13 all seem to be related to the alleged necessity for a claim for compensation to be accompanied by a medical certificate. There is no substance in any of these Grounds – even if they were to be entertained.

49    Grounds 6, 15, 16 and 17 are all Grounds directed to challenging the facts as found by the Tribunal. They also seem to be a manifest departure from the manner in which the appeal before the primary Judge was conducted. But whether that is so or not is not decisive. That which is decisive is that s 44(1) of the Administrative Appeals Tribunal Act does not, as a general proposition, permit of a challenge to factual findings.

50    If attention is then directed to the two asserted errors sought to be identified by Ms Dunkerley orally during the course of the hearing of the present Interlocutory Application, it is respectfully concluded that:

    the first of the two errors is but a repetition of, or an attempt to reformulate issues (a) and (b) identified by the primary Judge: [2015] FCA 392 at [21]; and

    the second of the two errors is a challenge to his Honour’s findings as to the absence of any departure on the part of Comcare from its obligations as a Model Litigant.

The oral submissions of Ms Dunkerley helpfully focussed attention upon the two matters of primary concern to her. In doing so, she did not seek to abandon her other challenges as expressed in the Notice of Appeal. As now expressed, Ms Dunkerley maintained that once Comcare had accepted an injury as compensable, it was not thereafter open to Comcare to “keep on testing it”. To bring an entitlement to compensation to an end, there had to be a finding that the injury had “ceased” and Comcare could not rely upon the views expressed by Dr George that the condition was in “remission”. Even if differently expressed, the primary Judge correctly rejected the submission.

51    There is one further reason for rejecting each of the Grounds of Appeal, namely:

    each Ground fails to confront a fundamental difficulty, namely the fact that the June 2014 decision of the Tribunal made findings of fact adverse to Ms Dunkerley’s claim to compensation. Her claim for compensation was bound to fail once the Tribunal concluded that “[a]ny residual incapacity for work and any increased susceptibility to suffer psychiatric symptoms that may be attributed to the 2007 injury … were not operative or effective factors”: [2014] AATA 381 at [46].

A combination of factors

52    In exercising the discretion to dismiss the appeal, no one factor has proved decisive.

53    The discretion has been exercised by reference to:

    the failure to compile an Appeal Book, or some other compilation of documents howsoever described, upon which the appeal was to proceed;

    the failure to file by the time prescribed an Outline of Submissions which clearly articulated the errors said to have been committed by the primary Judge. Even accepting that Ms Dunkerley is unrepresented, the submissions she filed on 17 August 2015 failed, with respect, to identify either the “questions of law” sought to be raised on appeal from the decision of the Tribunal or the errors said to have been committed by the primary Judge. The documents as then filed, albeit belatedly, with respect failed to comply with the direction to file a document being an outline of “submissions” which addressed with any degree of clarity or in any meaningful way the appellable errors said to have been committed by the primary Judge; and

    the failure to identify any Ground of Appeal which has any merit.

In essence, it is the combination of these factors that leads to the discretion conferred by s 25(2B)(bb)(i) of the Federal Court Act being exercised adversely to Ms Dunkerley. The object and purpose of an appeal being subject to case management is to ensure that the bases upon which the appeal is to proceed will all be before the Full Court for its consideration and for the questions to be resolved on appeal to be clearly articulated. In the present case, neither the 17 Grounds of Appeal nor the submissions of Ms Dunkerley articulate with any clarity the appellable errors said to have been committed by the primary Judge. Indeed, some Grounds of Appeal would seem to canvass arguments not advanced before – nor resolved by – the primary Judge. Leave to raise such Grounds would, of course, be required. But the submissions filed by Ms Dunkerley are singularly unhelpful in distinguishing between arguments previously relied upon as opposed to proposed fresh Grounds.

CONCLUSIONS

54    Although Ms Dunkerley was unrepresented both before the primary Judge and the Court as presently constituted, there is no reason why the normal principles should not be applied. That a party is unrepresented confers no licence to place to one side or to disregard procedural requirements: cf. SZNFR v Minister for Immigration and Citizenship [2009] FCA 851 at [16]; Nyoni v Chee Koon Hee (No 4) [2013] FCA 948 at [11].

55    If any of the purported Grounds of Appeal had any apparent substance, a different approach could have been taken: cf. VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [48]; MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [101] per Jessup J. Neither the fact that a party is unrepresented, nor the inelegance with which Grounds of Appeal may be expressed, should operate as a bar to a point having some apparent substance being pursued on appeal – including, in an appropriate case, arguments not raised for resolution before the primary Judge. Indeed, it is the function of a Full Court to resolve whether Grounds of Appeal properly advanced should be accepted or rejected. In circumstances where directions to ready an appeal for hearing have in fact been complied with, no occasion for the exercise of the discretion conferred by s 25(2B)(bb)(i) would arise; but even where directions have not been complied with, considerable caution should nevertheless be exercised before dismissing an appeal in circumstances where there is arguable appellable error. Albeit but one of the factors presently taken into account when exercising the discretionary power conferred by s 25(2B)(bb)(i), the fact remains that no argument having any merit emerges in the present appeal – be it from the Grounds of Appeal, Ms Dunkerley’s oral submissions made during the hearing of the present Interlocutory Application or the “submissions” filed belatedly by Ms Dunkerley.

56    Considerable hesitation is thus expressed in the appropriateness of a single Judge dismissing an appeal and thereby precluding the appeal being heard by a Full Court. But the power conferred by s 25(2B)(bb)(i) of the Federal Court Act and r 36.74(1)(a) of the Federal Court Rules remains a power to be exercised in an appropriate case. The present is such a case. It is difficult for a single Judge effectively to manage a case to ready it for hearing before a Full Court where there has been an unexplained failure to comply with directions and where an Appeal Book has not been prepared and where the Grounds of Appeal are not clearly articulated in a Notice of Appeal or in written submissions filed in support of an appeal. Written submissions which canvass in an unstructured and discursive manner all of the concerns of a disgruntled party cannot properly be characterised as an Outline of Submissions. In different circumstances, directions could be made requiring (for example) a Commonwealth Respondent to an appeal to complete the task of filing an Appeal Book and requiring an appellant to file an amended Notice of Appeal. Such a course was not pursued in the present case because it was concluded that no re-drafting of the Grounds of Appeal could expose potential error.

57    Given an acceptance on the part of Comcare that an order under s 37AO(2)(a) or (b) of the Federal Court Act is expressly made a “final order” by reason of s 37AO(5) that may be made by “the Court”, Comcare further accepted that the making of such an order did not fall within the power conferred upon a single Judge pursuant to s 25(2B)(bb). Any order pursuant to s 37AO, it was accepted, remained within the power of the Full Court alone. The Interlocutory Application seeking orders pursuant to s 37AO was, accordingly, not pressed.

58    It should be noted that the primary Judge was clearly conscious of the difficulties confronting an unrepresented appellant. The steps taken by his Honour to distil potential “questions of law” for the purposes of s 44 of the Administrative Appeals Tribunal Act, it is respectfully considered, provided considerable assistance to Ms Dunkerley in bringing her case within the confines of the jurisdiction entrusted to this Court by that section. The reasons for decision of the Tribunal, it should perhaps further be noted, have again been revisited by the Court as presently constituted to consider whether any further “questions of law” could be discerned. That further attempt was unsuccessful.

59    The appeal should be dismissed with costs.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the Respondent in respect to the Interlocutory Application filed on 3 August 2015.

3.    No order for costs is made in respect to the Interlocutory Application filed on 2 July 2015.

Associate:    

Dated:    8 October 2015