FEDERAL COURT OF AUSTRALIA

Hutchinson v Comcare [2017] FCA 1145

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application filed 5 May 2017 is dismissed.

2.    The applicant pay the respondent’s costs of that application.

3.    On or before 25 October 2017 the applicant file and serve:

(i)    A document indicating the affidavits already filed in the proceeding on which she intends to rely at trial.

(ii)    Any further affidavits on which she intends to rely at trial.

(iii)    Written submissions in support of the claims made which particularise the evidence relied upon for each of those claims.

4.    The proceeding be referred to mediation before a Registrar of the Court on a date to be fixed on or after 30 October 2017 and before 17 November 2017.

5.    On or before 14 February 2018 the respondent file and serve

(i)    A document indicating the affidavits already filed in the proceeding on which it intends to rely at trial.

(ii)    Any further affidavits on which it intends to rely at trial.

(iii)    Written submissions responding to the claims made by the applicant, including by particularising the evidence relied upon in response to each claim.

6.    On or before 14 March 2018 the applicant file and serve any affidavits in reply upon which she intends to rely together with any written submissions in reply.

7.    The affidavits and written submissions filed and relied upon by the parties shall stand as the pleadings.

8.    The proceeding be listed for a pre-trial conference at 9.30am on 28 March 2018.

9.    The proceeding be listed for trial on an estimate of 7 days on a date to be fixed.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    In her originating application, the applicant, Karen Hutchinson (“Ms Hutchinson”), seeks various forms of relief, including relief pursuant to s 14 of the Public Interest Disclosure Act 2013 (Cth) (“PID Act”). Section 14 of the PID Act permits the Court if satisfied, on the application of a person, that another person took or threatened to take or is taking reprisal action, the Court may make various orders, including orders to compensate an applicant for loss, damage or injury as a result of the reprisal or threat.

2    Section 13 of the PID Act sets out what constitutes the taking of a reprisal. Broadly speaking, a person takes a reprisal against another if, firstly, the first person causes by an act or omission any detriment to the second person. Secondly, when the act or omission occurs, the first person believes or suspects that the second person or any other person made, may have made or proposes to make a public interest disclosure; and, thirdly, that belief or suspicion is the reason or part of the reason for the act or omission. Detriment under that provision is defined to include any disadvantage.

3    Ms Hutchinson is a former employee of the respondent Comcare. She was formerly employed by Comcare as a Claim Services Officer. On 8 February 2011, she lodged a claim for workers’ compensation for depression and anxiety. That claim was made under the Safety, Rehabilitation and Compensation Act 1988 (Cth). After a reconsideration of an initial refusal, Comcare accepted liability for major depression with the date of injury found as 31 January 2011. As a consequence of its acceptance of liability, Comcare has from time to time reimbursed Ms Hutchinson in relation to expenditure by her on certain medication.

4    The issue of reimbursement of expenditure on medications has been raised by Ms Hutchinson on a number of occasions in prior interlocutory applications brought by her which on each occasion have been refused. By an interlocutory application dated 4 May 2017, Ms Hutchinson seeks to again agitate the issue of reimbursement for her expenditure on medications. She seeks an order from the Court pursuant to s 15 of the PID Act requiring Comcare to pay the receipts submitted by her for medications in relation to her accepted compensable condition within a 14 day timeframe.

5    Her case in outline is that reimbursements have been made to her late and that the delay is reprisal action. That is, action taken by Comcare, and in particular a Claim Manager named Helen Dunn, because of or including for a reason that Ms Hutchinson made public interest disclosures. There are two, possibly three, public interest disclosures involved: the first dated 30 January 2014, the second 19 December 2015 and a third document, which might fall into what the Act defines as a public interest disclosure, dated 11 August 2016. Broadly speaking, the disclosures complain of maladministration by Comcare.

6    A question is raised by Comcare as to whether the Court has the power to grant interlocutory injunctive relief. The PID Act does not expressly empower the Court to grant interlocutory relief. However, s 23 of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”) does grant the Court power in relation to matters in which it has jurisdiction to make orders, including interlocutory orders. There may be a question as to whether the terms of the PID Act expressly or impliedly exclude the Court’s power under s 23 of the FCA Act. I need not determine that issue now. For reasons that I will explain, I would dismiss the interlocutory application in any event, having considered the application on the assumption, in favour of Ms Hutchinson, that the Court does have power pursuant to s 23 of the FCA Act to make an interlocutory order of the kind that she seeks.

7    In an affidavit relied upon by Ms Hutchinson dated 5 July 2017, she deposed that she has on various occasions submitted receipts for medication, called Pristiq, for reimbursement by Comcare. That material and other material relied upon by Comcare in an affidavit made by James McKenzie, employed by Comcare in the position of Director of Clinical and Rehabilitation Services, seems to establish that each script in question involved expenditure by Ms Hutchinson in the sum of about $38.

8    In about May of 2016, it appears that a request for reimbursement in relation to Pristiq was made by Ms Hutchinson. That claim for reimbursement was paid about a month after it was submitted. Another claim for reimbursement for Pristiq was made in about July 2016. It was paid about one month later. There were two further receipts submitted in that year. They appear to have been paid about two months after they were submitted. A fourth reimbursement is raised in Ms Hutchinson’s affidavit. She says that she sent a receipt for Pristiq in the amount of $37.80 to the general inquiries mailbox of Comcare on 14 March 2017. In relation to that claim, Mr McKenzie initially deposed that there was no record of it having been received. It seems, however, by more recent information put by Mr McKenzie to the Court, that claim was entered onto Comcare’s accounts system on 11 July 2017 and paid two days later. I would assume, on the basis of the material before me, that payment in relation to that expenditure was made some four months after the claim for reimbursement was made by Ms Hutchinson.

9    Mr McKenzie’s affidavit of 3 August 2017 and, in particular, the schedule which appears as annexure JM25 shows that in 2017 there were two further claims made by Ms Hutchinson for expenditure on Pristiq tablets. The information I have does not show the date of receipt by Comcare of the request for reimbursement, but shows that the date of the expenditure on the tablets by Ms Hutchinson in the first case was 22 May 2017, and in the second case was 13 May 2017. Each of those receipts was entered onto Comcare’s system on 10 July 2017, some two months after the expenditure, and payment in relation to both was made on the same day that the expenditure was entered into Comcare’s system.

10    It appears from the table produced by Mr McKenzie that some time had lapsed between the date of expenditure and when the expenditure is entered onto Comcare’s accounting system. Whilst that time lapse varies, it seems to take a month or two and, as I said, in one case, four months. What I might call the outlier, the expenditure which took four months to enter Comcare’s system, may well be explained by the fact that when Ms Hutchinson made that claim, she emailed it to a general inquiries mailbox on Comcare’s email system. Furthermore, the table produced by Mr McKenzie identified the person who actioned the request for reimbursement once it was created on Comcare’s system. In relation to Pristiq medication, the person who actioned payment on each occasion was someone other than Helen Dunn.

11    Beyond the material to which I have referred, Ms Hutchinson has exhibited some email correspondence between her and Ms Dunn. She points to an email of Ms Dunn dealing with a complaint made by Ms Hutchinson about a failure to reimburse. In that email Ms Dunn asserts that a communication from Ms Hutchinson had not been received. In her oral submissions, Ms Hutchinson suggested that the denial of receipt of that communication, together with the fact that Ms Dunn copied her email to a manager, provided a basis upon which the Court should infer, together with the fact that Ms Dunn was aware of the public interest disclosures made by Ms Hutchinson, that a reason for what Ms Hutchinson claimed were late payments is the making by Ms Hutchinson of the public interest disclosures.

12    The test for the grant of an interlocutory injunction is well-known. I need to be satisfied that there is a prima facie case made out. I also need to be satisfied that the balance of convenience favours the making of an interlocutory order.

13    I am not satisfied that Ms Hutchinson has made out a prima facie case that the lateness of any reimbursements to her are connected to the making by her of public interest disclosures. Whilst I accept that there seems to be, on average, a somewhat lengthy gap in time between when claims for reimbursement are made and when those claims are paid, the material before me gives me no basis upon which I could infer, even on a prima facie basis, that any delay has occurred by reason of Ms Hutchinson making the public interest disclosures.

14    Ms Hutchinson has put no evidence before me as to what delay in time would ordinarily occur in relation to claims of the type that she has made for reimbursement. For all I know, it may take a month or two for Comcare to process such claims not only in Ms Hutchinson’s case, but in the case of every claimant. I have no basis for inferring that Ms Hutchinson is in any way being singled out in that respect. The delay pointed to by Ms Hutchinson may be the consequence of inefficiency. It may be the consequence of overworked employees due to lack of staff or perhaps other causes. I do not know and I am not able to speculate.

15    Ms Hutchinson contends that it would be logical and reasonable to make the inference that she seeks the Court to make. In my view, there is no reasonable basis for that inference to be drawn. It seems to me, on the material that I have before me, that the allegations made by Ms Hutchinson are purely speculative. The Court is not prepared to speculate and Ms Hutchinson has not persuaded me that she has a prima facie case.

16    Even if I had been persuaded of a prima facie case, I would not have granted the interlocutory orders sought by Ms Hutchinson. Although, in her submissions, Ms Hutchinson asserted that the delays in reimbursements were causing her financial hardship, there is no material before me to support those assertions. Even if I were to assume that Ms Hutchinson survives off a modest pension, the amounts involved, which on my reckoning are less than $200 in total across the four or five reimbursement claims referred to by Ms Hutchinson in her affidavit, are not significant. I appreciate that a person on a pension has limited means, but the delays in the reimbursements in question relate to amounts which, even in that financial context, I would not regard as significant.

17    It is surprising that the Court should be burdened with having to determine an application of this kind, given the nature of the harm alleged. In any event, as I say, there is no material before me which would support a finding that the balance of convenience favours the grant of the order sought by Ms Hutchinson.

18    For those reasons, I will dismiss Ms Hutchinson’s interlocutory application.

Associate:        

Dated:    28 September 2017