FEDERAL COURT OF AUSTRALIA

Hutchinson v Comcare [2018] FCA 505

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 17 October 2017 be dismissed.

2.    The applicant pay the first respondent’s costs on a lump sum basis.

3.    By 4:00pm on 27 April 2018, the costs applicant shall file and serve an affidavit in support of the lump sum claim. The document shall:

(a)    Address the relevant matters set out in Part B of “Annexure A - Guide to Preparing a Costs Summary” to the Costs Practice Note (GPN-COSTS);

(b)    Verify the matters set out in Part A of Annexure A; and

(c)    Not exceed five pages in length (omitting formal parts).

4.    By 4:00pm on 11 May 2018, the costs respondent file an affidavit responding to the matters raised in the cost applicant’s affidavit. The document shall not exceed four pages in length (omitting formal parts).

5.    The application be listed for a costs hearing on 14 June 2018 at 10.15am in the Federal Court of Australia sitting in Perth.

6.    Liberty to either party to apply to the Court for a listing for further directions. The other party must be given three days’ clear notice of the time, date and place of that listing.

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

REASONS FOR JUDGMENT

BARKER J:

1    The applicant applies for an order extending the time for her to seek judicial review, under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), of three decisions of the first respondent, Comcare.

2    The three decisions are referred to in more detail below. Two were made under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) and concern the applicant’s entitlement to work related compensation. These are referred to as the 11 December 2015 decision and the 9 February 2016 decision. The third concerns the refusal of Comcare to waive a debt owed to Comcare. This is referred to as the 10 November 2015 decision.

3    In relation to the third decision (but not in relation to the other two decisions), a question arises as to whether the decision is one made “under an enactment” for the purposes of the ADJR Act. If it is not, there is no jurisdiction to review the decision under the ADJR Act and the application for extension of the time to review that decision under the ADJR Act would immediately fail.

4    In relation to all three decisions there are questions concerning whether the applicant has satisfactorily explained her delay in seeking judicial review under the ADJR Act; the merits of the claims; and discretionary considerations affecting the entitlement of the applicant now to seek judicial review rather than pursue alternative forms of review.

The initial application

5    On 5 December 2016, the applicant initially filed an application in this Court (initial application), purportedly under the ADJR Act for judicial review of the three decisions which, in order of time constituted:

(1)    a decision made 10 November 2015, being a denial of a debt waiver request;

(2)    a decision made 11 December 2015, being a denial of secondary conditions; and

(3)    a decision made 9 February 2016, being a denial of the condition of agoraphobia.

6    She alleged each decision involved a breach of s 6(1) of the ADRJ Act.

7    In her initial application, the applicant sought the following four orders:

1.    An order that Comcare accept the “waiver” request and repay me all the monies I have paid toward the debt I owed to Comcare as a result of the bad faith Comcare has engaged in from the commencement of the garnishing of my compensation payments.

2.    An order that Comcare accept the secondary claims of “type 2 diabetes” and “atrial flutter” as an aggravation of a pre-existing condition of “obesity.”

3.    An order that Comcare determines that compensation is payable under s. 16 of the SRC Act for medical treatment in relation to “obesity”, “type 2 diabetes” and “atrial flutter” including the hiring or purchase of an exercise bike to assist me with weight loss.

4.    An order the Comcare accept the condition of “agoraphobia” as being a subset of my accepted “post-traumatic stress disorder” and accept the medications and treatment I require for any condition arising from “agoraphobia”, in particular the Vitamin D deficiency that was diagnosed in 2012.

8    Section 6 of the ADJR Act provides that:

(1)     Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the conduct on any one or more of the following grounds:

(a)     that a breach of the rules of natural justice has occurred, is occurring, or is likely to occur, in connection with the conduct;

(b)     that procedures that are required by law to be observed in respect of the conduct have not been, are not being, or are likely not to be, observed;

(c)     that the person who has engaged, is engaging, or proposes to engage, in the conduct does not have jurisdiction to make the proposed decision;

(d)     that the enactment in pursuance of which the decision is proposed to be made does not authorize the making of the proposed decision;

(e)     that the making of the proposed decision would be an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made;

(f)     that an error of law had been, is being, or is likely to be, committed in the course of the conduct or is likely to be committed in the making of the proposed decision;

(g)     that fraud has taken place, is taking place, or is likely to take place, in the course of the conduct;

(h)     that there is no evidence or other material to justify the making of the proposed decision;

(j)     that the making of the proposed decision would be otherwise contrary to law.

(2)     The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

(a)     taking an irrelevant consideration into account in the exercise of a power;

(b)     failing to take a relevant consideration into account in the exercise of a power;

(c)     an exercise of a power for a purpose other than a purpose for which the power is conferred;

(d)     an exercise of a discretionary power in bad faith;

(e)     an exercise of a personal discretionary power at the direction or behest of another person;

(f)    an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

(g)     an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

(h)     an exercise of a power in such a way that the result of the exercise of the power is uncertain; and

(j)    any other exercise of a power in a way that constitutes abuse of the power.

(3)     The ground specified in paragraph (1)(h) shall not be taken to be made out unless:

(a)     the person who proposes to make the decision is required by law to reach that decision only if a particular matter is established, and there is no evidence or other material (including facts of which he or she is entitled to take notice) from which he or she can reasonably be satisfied that the matter is established; or

(b)     the person proposes to make the decision on the basis of the existence of a particular fact, and that fact does not exist.

Application for extension of time to apply

9    The applicant supported her initial application with an affidavit in which she described the three decisions and annexed copies of them, and provided reasons why her application was not filed on time, including issues she had before the Administrative Appeals Tribunal where she initially sought merits review of the 11 December 2015 decision before discontinuing that avenue of review and commencing the proceeding in this Court.

10    On 30 March 2017, a case management hearing of the initial application came before Bromberg J in this Court. His Honour made an order adjourning that case management hearing to a date to be fixed.

11    On 18 September 2017, I made orders based on the recognition by the parties that the initial application was out of time and that the applicant should have leave to file an application for an extension of time to apply, by 17 October 2017. Those orders also provided for Comcare to file a bundle of relevant documents in the Court and for the applicant to file and serve an affidavit containing any additional evidence upon which she proposed to rely relevant to the grounds of review. Those orders also provided for a final hearing of the matter on 12 March 2018.

12    Pursuant to these orders, on 17 October 2017 the applicant filed the current application before the Court seeking an extension of time for seeking judicial review under the ADJR Act, and a supporting affidavit. In her affidavit, the applicant states that, in 2014, the management of the applicant’s compensation claim was redirected to the Melbourne Comcare office, and was then managed by the team in which she had sustained her original compensable injury. The applicant said this caused her psychological state to deteriorate. Because of this, the applicant states, she gained a substantial amount of weight and, in September 2015, was diagnosed with “atrial flutter”.

13    The affidavit outlines in detail the applicant’s assertion of “Systemic Breaches of the Privacy Act 1988 by Comcare”, including in relation to the delegate of Comcare’s requests for medical reports. The applicant outlines the processes she says the delegate went through in making the decisions and annexes a range of emails, requests and reports in this regard.

14    She also states that she (the applicant) was forced to seek merits review in the Tribunal of the 11 December 2015 decision to deny her secondary conditions. She states that due to her unwillingness to allow the Tribunal and Comcare’s lawyers “to continue and perpetuate further breaches of my privacy”, she withdrew her merits review claim in the Tribunal and sought alternative possibilities to protect her legal rights.

15    It is in these circumstances that the applicant now seeks an order of this Court extending the time for seeking judicial review, which she says was necessitated “due to the delays deliberately occasioned by Comcare and its legal representatives”.

Issues

16    While the matter was listed for final hearing on 12 March 2018, the applicant contacted the Court by email on 5 March 2018 requesting that the hearing be vacated and the matter be determined on the papers. On 6 March 2018, the respondents consented to the matter being determined on the papers. I assented to that course.

17    The papers on which the extension application is determined comprise:

    The applicant’s application for judicial review filed 5 December 2016.

    The applicant’s affidavit dated 5 December 2016.

    The applicant’s application for an extension of time dated 17 October 2017.

    The affidavit of the applicant dated 17 October 2017.

    The Court book filed by Comcare on 2 November 2017.

    The applicant’s submissions dated 25 February 2018.

    Comcare’s outline of submissions dated 5 March 2018, with authorities.

    Further submissions of the applicant dated 13 March 2018.

18    The following questions arise for determination:

(1)    Should there be an extension of time to seek judicial review of the denial of the debt waiver request decision dated 10 November 2015?

(2)    Should leave be granted extending the time to seek judicial review of the denial of the secondary conditions contained in the decision of 11 December 2015?

(3)    Should leave be granted extending the time to seek judicial review of the denial of the condition of agoraphobia contained in the decision of 9 February 2016?

Applicant’s case

19    At the outset of her submissions at [1.4]-[1.8], the applicant refers to delay in this matter being listed for hearing and states that it is of grave concern that in a matter regarding issues of procedural fairness that “the Court itself has allowed 12 months to be administratively squandered by inexplicable delays which have inevitably caused the injustice originally caused to become a profound and catastrophic failure and impacted my life to cause unimaginable, ongoing harm and detriment”.

20    The applicant submits that her claim revolves entirely around procedural fairness – that is, the alleged breaches of s 6(1) of the ADJR Act.

21    In relation to the 10 November 2015 decision, the applicant contends that she was not afforded an opportunity to give the decision-maker a complete financial picture which “they complained was their sole reason for denying my waiver”. She points to her two affidavits as providing further and better particulars in this respect.

22    With regard to the 11 December 2015 decision, the applicant states as follows at [2.3] of her submissions.

a. I made claims to Comcare asking them to accept my secondary conditions of ‘type 2 diabetes’ and ‘atrial flutter.’

b. I provided all the evidence necessary to show that these secondary conditions had arisen as a direct result of my compensable conditions of ‘major depressive disorder’ and ‘post-tramatic stress disorder.’

c. My claims manager, Helen Dunn served a section 71 notice on Comcare as my ex-employer requesting a copy of my ‘pre-employment medical assessment’ (PEMA) dated 20 July 1999 be provided to her. I was not informed of the collection of my sensitive, personal medical information until 11 December 2015.

d. Helen Dunn used the information contained in the PEMA (and only relevant to the time period July 1999) as the basis to deny the secondary conditions of ‘obesity,’ ‘type 2 diabetes’ and ‘atrial flutter.’

e. ‘Procedural fairness’ was not observed as the collection of my sensitive, personal medical information was a fundamental breach of the Privacy Act 1988 as well as a contravention of the associated Australian Privacy Principles (APPs). A section 71 notice requires the information sought is ‘relevant,’ to any claim that is being made.

f. Helen Dunn made a ‘false and misleading’ statement to Comcare in her section 71 notice by declaring the PEMA was necessary to help her investigate and determine my ‘type 2 diabetes’ claim.

g. Helen Dunn also neglected to ensure that; matters an individual must be notified about under APP 5.2 include:

•    the APP entity’s identity and contact details

•    the fact and circumstances of collection

•    whether the collection is required or authorised by law

•    the purposes of collection

•    the consequences if personal information is not collected

•    the entity’s usual disclosures of personal information of the kind collected by the entity

•    information about the entity’s APP privacy policy

h. Helen Dunn made the ‘false and misleading’ finding that, ‘The evidence of your pre-employment medical indicated that in actuality you had a BMI in the morbidly obese range prior to your compensable condition and had only sustained a reduction in your weight a result of an extended illness.’

i. I was given no opportunity to provide any further medical evidence or information to Helen Dunn which may have prevented her making the adverse decision of 11 December 2015 thus giving rise to a further denial of ‘procedural fairness.’

j. Subsequent to the adverse decision of 11 December 2015, I requested a reconsideration.

k. The reconsideration decision was issued on 25 February 2016 by the Review officer, Barbara Ploy who affirmed the earlier decision.

l. Barbara Ploy made several fraudulent statements to support her rationale in effectively denying my secondary conditions.

m. Concerningly, all the reports and clinical notes requested by Helen Dunn from my treating specialists and GP were solicited using a signed authority and consent for the collection and release of medical information that was signed by me in 2011 thereby breaching the Privacy Act and associated APPs.

n. Helen Dunn also communicated directly with Cardio Vascular Services (CVS) and as a result was provided with my sensitive, personal medical information that she was not authorised to collect, use or disclose under any circumstances, again being a serious breach of the Privacy Act and associated APPs.

o. Further and better particulars are provided in ‘my first affidavit’ at paragraphs 20 - 26 and ‘my second affidavit’ at paragraphs 91 – 95.

23    Regarding the 9 February 2016 decision the applicant contends at [2.4]:

a. On 9 February 2016 Helen Dunn issued a denial of the discretely identified condition of ‘agoraphobia.’

b. I do not currently and have never suffered from a discrete condition of ‘agoraphobia.’ I suffer from ‘agoraphobic avoidance’ which is considered a sub class of symptoms associated with my PTSD. It has been consistently identified by my treating psychologist, Dr. Brendon Dellar through all the reports he has provided to Comcare since 2012.

c. Helen Dunn denied me ‘procedural fairness’ when she requested a supplementary report from Consultant Psychiatrist, Dr. Kevin O’Daly and provided him with a copy of the PEMA she had unlawfully collected, used and disclosed and posed a biased and prejudicial question to him referring him specifically to the contents of the PEMA.

d. In her denial decision, Helen Dunn made the fraudulent and ‘false and misleading’ statement, ‘Dr O’Daly attributed your weight gain to your obsessive personality style not to your compensable condition and you do not meet the DSM 5 for agoraphobia.’

e. Further and better particulars are provided in ‘my first affidavit’ at paragraphs 27 - 29 and ‘my second affidavit’ at paragraphs 96 – 106.

24    The applicant specifically refers to ss 3(2), (3), (4) and (5) and 6(1) and (2) of the ADJR Act. She also refers to Appendix B of the Legal Services Directions 2005 (which has since been replaced by the Legal Services Directions 2017) made under s 55ZF of the Judiciary Act 1903 (Cth).

25    The applicant submits the following at [3.3] of her submissions in relation to the Privacy Act 1988 (Cth).

a. Comcare only has ‘authority’ in relation to seeking information under sections 58 and 71 of the SRC Act and routinely claim the exemption under Privacy Principle 3.4 to collect this information;

‘3.4 This subclause applies in relation to sensitive information about an individual if:

•    the collection of the information is required or authorised by or under an Australian law or a court/tribunal order.’ (emphasis added)

b. However, as specified by sections 58 and 71 of the SRC Act:

(i) Section 58

‘58 Power to request the provision of information

(1) Where a relevant authority has received a claim and is satisfied that the claimant:

(a) has information or a document that is relevant to the claim; or

(b) may obtain such information or a copy of such a document without unreasonable expense or inconvenience;

the relevant authority may, by notice in writing given to the claimant, request the claimant to give that information or a copy of that document to the relevant authority within 28 days after the date of the notice or within such further period (if any) as the relevant authority, on the request of the claimant, allows. (emphasis added)

(2) A claimant who has received a notice under subsection (1) shall be taken to have complied with the notice if the claimant gives the relevant authority the information or document specified in the notice within 28 days after the date of notice or within such further period (if any) as the relevant authority has allowed.

(3) Where a claimant refuses or fails, without reasonable excuse, to comply with a notice under subsection (1), the relevant authority may refuse to deal with the claim until the claimant gives the relevant authority the information, or a copy of the document, specified in the notice.’ (emphasis added)

(ii) Section 71

‘71 Power to obtain information from Departments and authorities

(1) Without limiting the generality of section 70, Comcare may, by notice in writing, require the principal officer of an Entity, a Commonwealth authority or a licensed corporation to give Comcare, within such period as is specified in the notice, such documents or information (or both) as are specified in the notice, being documents or information in the possession, custody or control of the Entity or authority that are relevant to a claim made by, or in relation to, an employee of the Entity or authority or that relate to the performance of functions or the exercise of powers by the principal officer under Part III. (emphasis added)

(2) A principal officer to whom a notice is given shall comply with the notice without delay.’

c. Both section 58 and 71 require that information requested is ‘relevant.’

d. The ordinary meaning of ‘relevant’ being;

‘(1) closely connected or appropriate to what is being done or considered or (2) appropriate to the current time, period, or circumstances; of contemporary interest.’

e. This means that requests for information made under section 58 or 71 cannot be considered using the catch-all of, ‘related to the functions of the entity’ or ‘for the management of a compensation claim’ because it would give rise to departments and agencies gaining information through the exercise of ‘fishing.’ This being one of the regular practices under the Privacy Act in concert with the implementation of the APP’s it is trying to curtail.

f. Anything that does not come under the subclause 3.4 means that section 3.3 applies in all other cases;

‘3.3 An APP entity must not collect ‘sensitive’ information about an individual unless:

a. the individual consents to the collection of the information and:

i. if the entity is an agency — the information is reasonably necessary for, or directly related to, one or more of the entity’s functions or activities; or

ii. if the entity is an organisation — the information is reasonably necessary for one or more of the entity’s functions or activities; or

b. subclause 3.4 applies in relation to the information.’

g. Importantly, this means that any other ‘sensitive’ information collection must ensure the four key elements of ‘consent’ are met. They are:

•    the individual is adequately informed before giving consent,

•    the individual gives consent voluntarily,

•    the consent is current and specific, and

•    the individual has the capacity to understand and communicate their consent.

h. APP 5 requires an APP entity that collects personal information (including sensitive information) about an individual to take reasonable steps either to notify the individual of certain matters or to ensure the individual is aware of those matters. An APP entity must take these reasonable steps before, at, or as soon as practicable after it collects the personal information.

i. Matters that an individual must be notified about under APP 5.2 include:

•    the APP entity’s identity and contact details

•    the fact and circumstances of collection

•    whether the collection is required or authorised by law

•    the purposes of collection

•    the consequences if personal information is not collected

•    the entity’s usual disclosures of personal information of the kind collected by the entity

•    information about the entity’s APP privacy policy

j. Further and better particulars are provided in ‘my second affidavit’ at paragraphs 7 – 23.

26    The applicant asks the Court to make a finding under s 6(1)(a) of the ADJR Act “that a breach of the rules of natural justice has occurred, is occurring, or is likely to occur, in connection with the conduct”. She contends that the failure to afford her procedural fairness resulted in the decision being infected by an error of law. In her submissions, the applicant makes reference to Kioa v West (1985) 159 CLR 550 at 576, 582, 584, 609-612; [1985] HCA 81, Moggill Cove Pty Ltd v Burton & Ors [2018] VSC 24 at [2], [21]-[23] and Fulton v Chief of the Defence Force [2017] FCA 913 at [7]-[11].

27    Finally, the applicant asks the Court to direct Comcare to:

(1)    accept the request for waiver and repay all monies garnished from her incapacity payments as a result of its bad faith;

(2)    accept her secondary conditions of obesity, type 2 diabetes and atrial flutter and associated reasonable medical costs; and

(3)    accept symptoms of “agoraphobic avoidance” should no longer be referred to as agoraphobia but considered as a cluster of symptoms associated with her PTSD and therefore reinstate reasonable medical costs and incapacity payments associated with her PTSD without delay.

28    On 5 March 2018, Comcare filed an outline of submissions, to which I refer further below. On 13 March 2018, the applicant responded to those submissions in her “Response to the Respondent’s Outline of Argument”, expanding on her “explanation for the delay” at [3]-[11]:

3.     It was never my intention to progress any of these claims to the Administrative Appeals Tribunal (AAT) for review and hadn’t begun to entertain the idea of resorting to the Federal Court and judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’) until sometime later. To be entirely frank, I had no idea the ADJR Act even existed, never mind it being something I might have recourse to use.

4.    As documented throughout my ‘second affidavit’ I have provided the majority of complaints and requests I made to Comcare at the time, pleading with them to conduct reconsiderations of own motion to change the biased and prejudicial decisions they had made that were unfairly detrimental to me, stop collecting my personal, sensitive medical information through unlawful means and perhaps most importantly to adhere to the tenets of ‘natural justice’ in the process of making their administrative decisions.

5.    It was all a complete waste of time as Comcare repeatedly refused to give any ground. It was as a last resort I made a ‘public interest disclosure’ under the ‘Public Interest Disclosure Act 2013’ (Cth) (the PID Act) on 19 December 2015. (This matter is currently before the Court in the Victorian registry before His Honour, Bromberg J and filed as; ‘Hutchinson v Comcare WAD 404/2016.’)

6.    All this prompted from Comcare was for them to seek external legal advice (ostensibly an assessment as to their likely potential liability should I proceed with litigation) even while assuring me it was only to ensure complete independence during the investigation process to provide a full and thorough review of all my complaints.

7.    After the final report was prepared and issued on 22 September 2016 I made a FOI request that confirmed Comcare had commissioned two separate reports with the second report only issued after they had edited and omitted adverse findings made against Comcare employees in the first report.

8.    Comcare refused to release the original unedited report to me citing ‘legal professional privilege.’

9.    It took until I applied to this Court to have the three decisions identified herein for me to fully accept that Comcare, if their employees ever had a clue about how ‘natural justice’ must be applied in all facets of their decision making, were making these decisions wilfully, recklessly and negligently for the explicit purpose of causing me harm and detriment.

10.    I must also acknowledge that my inability to retain legal council, due primarily to financial impecunious circumstances, in concert with my deteriorating psychological and physical health has certainly played a part in contributing to the delay in bringing these matters before the Court.

11.    While I fully understand this is an adversarial process, I can’t help but wonder that if Comcare really wanted to convince the Court as well as the tax-paying public of their good faith and that they truly embrace and exemplify the legal requirements of being a ‘model litigant’ on behalf of the Commonwealth, it would behove them to allow this claim to proceed without defaulting to their overused loophole ‘extension of time’ defence. Allowing the claim to be tested against the more rigorous legislative and legal definitions and provisions available for review before a Justice of the Federal Court.

29    In regard to prejudice faced if an extension of time is not granted, the applicant states that if the three decisions remain in place this will be “an example of judicial incompetence”. Alternatively, she says, if an extension of time is granted, Comcare will not be prejudiced.

30    Further, the applicant states that it is in the public interest to allow an extension of time. She acknowledges the need for finality in litigation but contends this “must be assured with a caveat that the correct and preferable decision has been made in every instance and not left to the vagaries of a judicial process that can be routinely gamed by a well resourced and represented defendant with deep pockets”.

31    The applicant states that she did seek review in the Tribunal regarding the 11 December 2015 decision, however “due to the constant bullying and intimidation” she was subjected to by the respondents’ lawyers “in concert with the unreasonable and incompetent behaviours” of the Tribunal’s Registry staff, she felt she had no option other than to withdraw her application.

32    The applicant’s reply submissions also address the merits of the substantive application and state that Comcare omitted the secondary condition of atrial flutter which should have been included together with the claims for obesity and type 2 diabetes. She outlines what she describes as “a most egregious breach of privacy” regarding the delegate obtaining her “personal sensitive information”. She details the way in which she did not provide consent for this to occur. At [48] of her further submissions, the applicant states:

I do, however, state unequivocally with regard to the ‘false and misleading’ and fraudulent statement by Helen Dunn, made solely to cause harm and detriment, that I will be requesting a formal charge be laid under s. 137.2 of the Criminal Code Act 1995 to the Australian Federal Police.

33    In relation to the 10 November 2015 decision, the applicant states that it is her firm belief and understanding that the Court has the jurisdiction to review the decision based on a denial of procedural fairness. To this end, she argues at [54]:

54.     Procedural fairness must fully and reasonably represent the ‘true’ and ‘factual’ financial circumstances of the person requesting a waiver or write off. If there remains any question or if doubts are raised about the veracity of the information provided then ‘natural justice’ demands that those doubts are satisfactorily and comprehensively ameliorated to the consent of all parties.

34    Finally, the applicant states in some detail that many of the documents contained in the Court book filed in this proceeding are examples of breaches of the Privacy Act.

Should there be an extension of time to seek judicial review of the denial of the Debt waiver request decision dated 10 November 2015?

35    The application for an extension of the time to seek judicial review under the ADJR Act should be refused.

36    Unlike the other two decisions, the 10 November 2015 decision, while one made by Comcare, is not one made “under an enactment” for the purposes of the ADJR Act. As a result, judicial review of it, under the ADJR Act, is not available.

37    The background is this. An award of costs was made in Comcare’s favour against the applicant in an earlier proceeding in this Court involving the same parties: Hutchinson v Comcare [2014] FCA 1300. The costs order plainly was made under s 43 of the Federal Court of Australia Act 1976 (Cth), and not pursuant to any provision of the SRC Act. Generally speaking, judicial review under the ADJR Act is available in relation to an administrative decision under an enactment, but not of a judicial decision under the Federal Court of Australia Act.

38    The applicant later sought waiver of that costs debt. Comcare has the power to waive its right to recover from a person the whole or part of a “debt due to Comcare” under s 114D(1) of the SRC Act. Section 114(1)(a) to (c) provides what a “debt due to the relevant authority” comprises, as follows:

(1)     Subject to subsection (1A), if:

(a)     an amount of compensation under this Act has been paid to a person in consequence of a false or misleading statement or representation or in consequence of a failure or omission to comply with a provision of this Act;

(b)     an amount of compensation that has been paid to a person under this Act should not have been paid; or

(c)     a person is liable to pay an amount to a relevant authority under this Act;

the amount concerned is recoverable by the relevant authority from the person in a court of competent jurisdiction as a debt due to the relevant authority.

39    As Comcare contends, while the decision dated 10 November 2015 refers to s 114 of the SRC Act, none of paras (a) to (c) of s 114(1) apply because the debt did not arise “under” the SRC Act.

40    As established in Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7, two criteria must be met before an administrative decision will be considered one made under an enactment. First, the decision must be expressly or impliedly required or authorised by the enactment. Secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. Neither of those criteria is satisfied in relation to the 10 November 2015 decision.

41    This is because the ability to waive a debt incurred by way of a court order is not expressly or impliedly contemplated by the SRC Act. The decision to not waive the debt does not make a present or contingent difference to legal rights or obligations. It simply does not derive from the SRC Act. It is not a decision that can relevantly be characterised as one made “under” the SRC Act.

42    It follows that this Court does not have any jurisdiction under the ADJR Act to judicially review that decision.

43    In these circumstance I do not need to consider the questions of delay in seeking judicial review in relation to this decision and the explanations therefore provided by the applicant.

44    For these reasons, the application for an extension of time to seek judicial review in respect of the refusal of waiver decision made 10 November 2015 should be refused.

Should an order be made extending the time to seek judicial review of the denial of the secondary conditions contained in the decision of 11 December 2015?

45    This decision was made under an enactment.

46    The first issue raised by Comcare against the making of an order extending the time to seek judicial review of this decision is the question of delay in bringing the proceeding.

47    As Comcare points out, the application for an extension of time filed 17 October 2017, became necessary because, pursuant to s 11(3) of the ADJR Act, for the judicial review application to have been made within time, it must have been within “the period commencing on the day on which the decision is made and ending on the twenty-eighth day after”. The relevant day for the running of that time was the day on which a document setting out the terms of the decision was furnished to the applicant. Section 11(1)(c) of the ADJR Act, however, permits an application to be lodged within such further time as the Court allows, although it does not prescribe any criteria guiding the exercise of that discretionary power. However, the following factors are relevant in considering an extension: length of the delay; explanation for the delay; prejudice to the applicant if an extension of time is not granted; prejudice to the respondent and any third parties if an extension is granted; nature of the decision and, in that context, relevant public interest considerations including the need for finality in litigation; and the merits of the substantive application. In addition, it is also relevant to consider the steps taken by the applicant other than pursuing judicial review proceedings. See Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 186; Hamden v Secretary, Department of Human Services [2013] FCA 3; and Malek Fahd Islamic School Limited v Minister for Education and Training [2017] FCA 757.

48    In this case, the decision dated 11 December 2015 was furnished to the applicant by at least 16 December 2015. For the application to have been made within the prescribed time (without an approved extension) it had to have been made by 13 January 2016. In fact, the initial application for judicial review was filed on 5 December 2016, some 327 days after the making of the relevant decision.

49    As Besanko J observed in Hamden at [36], something very persuasive will be required to justify a grant of extension of time after, for example, a year.

50    There are usually 365 days in a year. The delay in seeking judicial review under the ADJR Act in the case of the 11 December 2015 decision is very close to a year. On the face of it, that is a very long time.

51    The explanation for not seeking judicial review earlier than she did, is most conveniently set out in the applicant’s responsive submissions filed 13 March 2018, which I have set out above at [28].

52    There the applicant makes it clear that it was never her intention to progress any of her claims to the Tribunal for review and that she had not begun to entertain the idea of resorting to judicial review under the ADJR Act until some time later. She said she had no idea the ADJR Act even existed, let alone was something she might have recourse to.

53    Taking into account her full explanation, I am not satisfied that the explanation for the just short of a one year delay in bringing the application for judicial review in this Court is adequate. I consider, on that ground alone, that the request for leave to have the period for seeking judicial review extended should be refused.

54    However, there is also an additional reason why an extension order should not be granted. Pursuant to s 10(2)(b)(ii) of the ADJR Act, the Court may, in its discretion, refuse to grant an application if “adequate provision” is made for an alternative review. In Cremona v Administrative Appeals Tribunal and Another (2015) 230 FCR 1; [2015] FCAFC 72, the Full Court observed that, properly construed, this means that if the Court is satisfied another law makes “adequate provision” for review, then the provision requires the Court to consider and weigh all relevant circumstances in determining whether or not to exercise the discretion to dismiss the proceeding.

55    In Edelsten v Minister for Health and Others (1994) 58 FCR 419; [1994] FCA 82, Northrop J, at 424, said adequate provision is to be read as adequate in the sense of suitable or sufficient provision for review.

56    I consider that in this case adequate provision was made for an alternative review of the decision dated 11 December 2015 by the SRC Act when read with the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Merits review was available. Indeed, merits review of the decision was sought by the applicant. She decided, however, to withdraw that review application.

57    I should note in passing that while it is open to a party to a merits review proceeding to seek reinstatement within 28 days after receiving notification that the application has been dismissed or where they request an extension that the Tribunal in special circumstances allows, as provided for by s 42A(8B) of the AAT Act, this procedure is expressly not open to an applicant who has withdrawn an application. See s 42A(8). The submission of Comcare suggesting it was open to the applicant to seek to reinstate her AAT review application is therefore not correct.

58    Nonetheless, in my view, the fact that the applicant sought merits review and then withdrew her application in the Tribunal goes to the discretionary consideration of whether or not an extension of time should now be allowed to seek judicial review of the 11 December 2015 decision. I consider it heavily weighs against the exercise of the discretion in favour of the applicant.

59    So far as the merits of the review application are concerned, I have set out the applicant’s primary contentions above. She contends she was not afforded procedural fairness, in breach of s 6(1) by the Privacy Act and the Australian Privacy Principles (APP) because Comcare issued a notice, under s 71 of the SRC Act, to Comcare in its capacity as her previous employer, and she was not given an opportunity to provide further evidence, which may have prevented the adverse decision of 11 December 2015.

60    Plainly, and it is not in contention, Comcare is a statutory authority established under the SRC Act. Its functions include assessing compensation claims. It has powers under the SRC Act to request information. One of those powers is to issue a statutory notice pursuant to s 71 to a Commonwealth authority to give Comcare such documents as are specified within a specified period of time. The power is only limited by the requirement that the documents or information be relevant to a claim made by the relevant applicant.

61    The claims that were being investigated when the s 71 notice in issue was given were with respect to a condition of obesity and type 2 diabetes. I accept the submission made on behalf of Comcare that in an email from her to Comcare, dated 5 August 2015, the applicant drew a direct link between the onset of her psychological condition, her weight gain and being diagnosed with type 2 diabetes. The question of whether the obesity was “significantly contributed to” by the applicant’s psychological condition was relevant to assessing both the claim for obesity and the claim for type 2 diabetes. Relevant to determining that issue was whether her weight fell into the obese range prior to the onset of the psychological injury. Information relevant to that question was provided for in the applicant’s pre-employment medical assessment. Thus, the information sought satisfied the criteria of relevance provided for in s 71.

62    The APP are set out in Sch 1 to the Privacy Act and cl 6.1 provides that an APP entity, such as Comcare, must not use or disclose information unless, pursuant to cl 6.2(b), the use or disclosure is required or authorised by or under an Australian law. I accept that s 71 of the SRC Act authorises the disclosure and that a request was made for documents that were relevant to the applicant’s claim. Thus, the APP and the Privacy Act do not prohibit disclosure.

63    I also accept the submission made on behalf of Comcare that the applicant was provided with an opportunity to provide evidence with respect to the issue of her weight prior to the onset of her psychological condition. She provided evidence in response to that request.

64    It is again appropriate to observe that the applicant subsequently exercised her merits review rights in the Tribunal in relation to this decision, before later withdrawing the application.

65    More generally, I do not see any basis to other aspects of her proposed judicial review application and, in particular her claim that the decision-making power was exercised for some improper purpose. What I have just recited about the reason for the s 71 notice indicates that not only was the purpose relevant but, also proper. There were relevant materials before Comcare to justify the giving of the notice and the making of its decision.

66    When one takes all of these factors into account, in my view, not only does each of itself justify the refusal to grant an extension of time to seek judicial review of the 11 December 2015 decision, but together they provide a powerful case for refusing an extension.

67    It follows that the application for an order extending the time to seek judicial review of the 11 December 2015 decision should be refused.

Should an order be made extending the time to seek judicial review of the denial of the condition of agoraphobia contained in the decision of 9 February 2016?

68    This decision was made under an enactment.

69    As in the case of the 11 December 2015 decision, Comcare opposes the application for an extension of time, first raising the question of delay in bringing the proceeding.

70    As Comcare points out the decision made 9 February 2016 was transmitted to the applicant by email on the same date. For the application for review to have been made within time with respect to this decision, it should have been made by 8 March 2016. Instead the application was filed in this Court on 5 December 2016. It follows that the application in respect of this decision was some 271 days out of time.

71    I have recited above the principles and authorities governing the exercise of the Court’s discretion to extend time for seeking judicial review under the ADJR Act and the range of factors relevant to the exercise of a discretion, including the availability of merits review of a decision such as that made 9 February 2016.

72    In my view, the explanation provided by the applicant for what is a long delay in applying for judicial review is inadequate. Persons in the position of the applicant cannot simply choose when they will commence proceedings. I do not accept that ignorance of a right to seek judicial review, which is advanced by the applicant, should result in an extension now being granted – at least in the circumstances of this case.

73    Additionally, it was open to the applicant to seek merits review of the decision in the Tribunal, but she chose, for her own reasons, not to do so. The Parliament of Australia has set up merits review as a substantive means of ensuring the preferable administrative decision is made in relation to a wide range of Commonwealth government decisions. It behoves an applicant, such as the applicant here, to take advantage of such merits review processes, especially when the substance of the case they wish to put on a judicial review application, goes to the merits of the decision already made. It would have been appropriate for the applicant to seek merits review and then, if she considered there were questions of law that affected the making of that decision, to appeal under s 44 of the AAT Act.

74    So far as the merits of the judicial review application are concerned, Comcare has reasonably construed the applicant’s contention to be that the delegate made a “fraudulent” and “false and misleading” statement in the 9 February 2016 decision, being: “Dr O’Daly attributed your weight gain to your obsessive personality style not to your compensable condition and you do not meet the DSM 5 for agoraphobia”.

75    I consider the submission made by Comcare in respect of this grievance is correct. The contention essentially amounts to a request for the Court to engage in merits review of the decision made. No question of law is apparent. As I have intimated, merits review is available in the Tribunal, not this Court. The jurisdiction of this Court is to deal with questions of law, either under a judicial review application under the ADJR Act, or on an appeal under s 44 of the AAT Act following merits review in the Tribunal.

76    As to the decision actually made, in my view plainly there was information before the delegate that enabled the decision to be made. It cannot be said that for the purposes of s 6(1)(h) of the ADJR Act there was no evidence or other material to justify the making of the proposed decision.

77    For these various reasons, both individually and collectively, the application for an order extending the time to seek judicial review of the 9 February 2016 decision should be refused.

Conclusion and orders

78    For these reasons the application for orders extending the time for seeking judicial review under the ADJR Act should be dismissed with costs.

79    The parties have agreed that if the applicant is unsuccessful, costs should be dealt with in accordance with the Court’s lump sum costs procedures.

80    The Court orders:

(1)    The interlocutory application dated 17 October 2017 be dismissed.

(2)    The applicant pay the first respondent’s costs on a lump sum basis.

(3)    By 4:00pm on 27 April 2018, the costs applicant shall file and serve an affidavit in support of the lump sum claim. The document shall:

(a)    Address the relevant matters set out in Part B of “Annexure A - Guide to Preparing a Costs Summary” to the Costs Practice Note (GPN-COSTS);

(b)    Verify the matters set out in Part A of Annexure A; and

(c)    Not exceed five pages in length (omitting formal parts).

(4)    By 4:00pm on 11 May 2018, the costs respondent file an affidavit responding to the matters raised in the cost applicant’s affidavit. The document shall not exceed four pages in length (omitting formal parts).

(5)    The application be listed for a costs hearing on 14 June 2018 at 10.15am in the Federal Court of Australia sitting in Perth.

(6)    Liberty to either party to apply to the Court for a listing for further directions. The other party must be given three days’ clear notice of the time, date and place of that listing.

Associate:

Dated:    13 April 2018