FEDERAL COURT OF AUSTRALIA

Hutchinson v Comcare (No 2) [2018] FCA 1179

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s interlocutory application of 16 February 2018 is dismissed in so far as the application seeks an order for summary judgment.

2.    The costs of the respondent’s interlocutory application are reserved.

3.    The proceeding be listed for a case management conference at 3 pm on Friday 10 August 2018

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

REASONS FOR JUDGMENT

BROMBERG J:

1    The proceeding concerns claims made by the applicant (“Ms Hutchinson”) against the respondent (“Comcare”) under the Public Interest Disclosure Act 2013 (Cth) (“PID Act”).

2    Ms Hutchinson is a former employee of Comcare. In February 2011, she submitted a workers’ compensation claim pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”). A compensable claim was accepted for “Major Depression – single episode” on 25 July 2011 following the reconsideration of an earlier rejection of that claim on 23 May 2011.

3    Since 30 January 2014 Ms Hutchinson has lodged purported public interest disclosures (“PIDs”) pursuant to the PID Act. Her first PID, dated 30 January 2014, related to Comcare’s decision dated 20 January 2014 not to take action to investigate complaints she had made to Comcare in December 2013 regarding her employment and the management of her compensation claim. Ms Hutchinson had been medically retired from her employment on 17 January 2014.

4    On 19 December 2015, Ms Hutchinson made a second PID relating to Comcare’s management of her compensation claim, in particular in respect of the decision to deny her claim for secondary medical conditions related to her compensable condition.

5    In the above context, Ms Hutchinson alleges that, since 2014, Comcare has taken reprisal action against her and caused her detriment in contravention of s 13 of the Public Interest Disclosure Act 2013 (Cth) (the “PID Claim”). She identifies in the order of 20 instances of alleged reprisal actions taken by Comcare or its employees.

6    By an interlocutory application dated 16 February 2018, Comcare seeks the following relief pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and/or r 26.01 of the Federal Court Rules 2011 (Cth):

(1)    judgment be entered for Comcare in respect of the whole of the PID Claim, or, alternatively, various specified parts of that claim;

(2)    alternatively, that the PID Claim be stayed until it is assessed and reformulated by lawyers.

7    Comcare’s grounds for seeking relief are that the PID Claim:

(1)    has no reasonable prospect of success on the basis that there is no plausible connection between the “reprisals” alleged by Ms Hutchinson under the PID Act, and Ms Hutchinson’s PIDs;

(2)    is an abuse of process because it is being pursued for collateral purposes including that:

(a)    Ms Hutchinson is seeking to subvert the processes that apply under the SRC Act in relation to her compensation claim; and

(b)    the PID Claim contains wide ranging and oppressive allegations beyond the scope of the PID Act.

8    Comcare’s application was filed following the provision of Ms Hutchinson’s submissions together with the material that she intends to rely upon at trial, and the making of an order that those submissions and material would stand as her pleadings. Orders for Comcare to file submissions in response to Ms Hutchinson together with any further material in response were vacated pending the determination of this application.

9    Without objection from the parties, I have determined Comcare’s application on the papers.

10    Before addressing Comcare’s submissions, it is necessary to briefly outline the operation of s 13 of the PID Act. Section 13 provides

13    What constitutes taking a reprisal

(1)    A person (the first person) takes a reprisal against another person (the second person) if:

(a)    the first person causes (by act or omission) any detriment to the second person; and

(b)    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

(c)    that belief or suspicion is the reason, or part of the reason, for the act or omission.

(2)    Detriment includes any disadvantage, including (without limitation) any of the following:

(a)    dismissal of an employee;

(b)    injury of an employee in his or her employment;

(c)    alteration of an employee’s position to his or her detriment;

(d)    discrimination between an employee and other employees of the same employer.

(3)    Despite subsection (1), a person does not take a reprisal against another person to the extent that he person takes administrative action that is reasonable to protect the other person from detriment.

11    In Hutchinson v Comcare [2017] FCA 1145 at [2], I described what constituted a “reprisal” under s 13 in terms of the following three elements (emphasis added):

Section 13 of the PID act sets out what constitutes the taking of a reprisal. Broadly speaking, a person take 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.

12    Comcare’s application for summary judgment is qualified by two concessions made for the purposes of the application. By its first concession, Comcare accepts that as a result of an act of omission of Comcare, Ms Hutchinson has suffered a relevant detriment (as defined by s 13(2) of the PID Act). Thus, the first concession addresses the requirement specified by s 13(1)(a) of the PID Act, being the first element I described in Hutchinson.

13    The second concession addresses s 13(1)(b), or the second element I described in Hutchinson. That is, Comcare accepts, for the purposes of this application, that the relevant decision-makers who (on behalf of Comcare) caused each of the detriments, believed or suspected that Ms Hutchinson had made one or more PIDs at the time that they took the action that led to the detriment.

14    However, Comcare disputes the existence of the third requisite element I described in Hutchinson, that specified by s 13(1)(c) of the PID Act. Comcare contends that Ms Hutchinson’s submissions “do not disclose a real factual dispute as to whether the making of one or more PIDs was the reason, or part of the reason for the act or omission”.

15    That contention is elaborated upon and essentially restated in the concluding paragraph of Comcare’s submission as follows:

[21]    Based on the Applicant’s Submissions and her evidence as filed, as well as the Applicant’s litigation history, there is no reasonable prospect the Applicant will be able to establish a plausible connection between the alleged “reprisals” and her status as a whistleblower. Accordingly, there is no real question of fact or law that ought to proceed to trial, and, thus, Ms Hutchinson does not have reasonable prospects of successfully prosecuting the PID Claim.

16    The reference made to there being “no real question of fact or law that ought to proceed to trial”, is taken from the judgment of Gilmour J in Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] where his Honour set out a summary of the principles relevant to an application for summary judgment. One of the principle there recorded is as follows (emphasis added):

if there is a real issue of fact or law to be decided, and the rights of the parties depend on it, it is obviously appropriate that the matter go to trial. It cannot be said, when there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds, that there is “no reasonable prospect of success”

17    Comcare’s reliance upon this principle suggests that it accepts that unless I can be persuaded that there is no real issue of fact or law to be determined at trial, I should dismiss its application. I think that approach is correct and I will proceed on that basis.

18    What needs to be established at trial by Ms Hutchinson to satisfy the element of the cause of action required by s 13(1)(c), is a connection between the belief or suspicion held by Comcare’s employee or employees that Ms Hutchinson had made or proposed to make a PID, and each particular detriment caused by that employee or employees. The connection or nexus between those two elements is that the relevant employee or employees of Comcare held the reason specified by s 13(1)(c). In simple terms, in order to establish “reprisal action”, the belief or suspicion of the making of or the proposed making of the PID by Ms Hutchinson held by the relevant or employee or employees, must be a reason for causing her detriment.

19    What Comcare’s submission seeks to establish is that there is no reasonable prospect that Ms Hutchinson will be able to establish “a plausible connection” between any of the detriments which it is assumed Comcare caused her and the fact that she made or proposed to make a PID. In other words, Comcare’s contention is that I should be satisfied that there is no reasonable prospect of Ms Hutchinson establishing at trial that, in relation to any of the many detriments alleged, a reason for the detrimental conduct taken against Ms Hutchinson was that Ms Hutchinson made or proposed to make a PID. It is convenient that I call that reason the “prohibited reason”.

20    There are two broad reasons given by Comcare’s submissions as to why I should be satisfied that Comcare did not hold the prohibited reason. They are set out in the paragraph of Comcare’s submission I have set out at [15] above. The first is “the Applicant’s Submissions and her evidence as filed”. The second is “the Applicant’s litigation history”. I will address the second basis first.

21    At [18]-[19] of Comcare’s written submissions, Comcare contends that a significant portion of what Ms Hutchinson alleges to have been unlawful conduct by Comcare and which is characterised as a “reprisal” involves the same allegations that Ms Hutchinson advanced in previous litigation brought by her against Comcare. That litigation is identified as the “General Protections Claim” that I dealt with in Hutchinson v Comcare [2017] FCA 136. Comcare notes that those proceedings were dismissed despite Ms Hutchinson having been afforded multiple opportunities to replead in order to avoid her application being struck out. The submission then asserts that the speculative nature of the litigation brought by Ms Hutchinson was laid bare by admissions Ms Hutchinson made in various exchanges with the Court, and proceeds to identify those exchanges.

22    The import of the submission seems to be that it is common for Ms Hutchinson to make allegations asserting unlawful conduct on behalf of Comcare based on no more than mere speculation.

23    Whether or not that allegation is correct, it does not assist Comcare’s application. It may well be that much, if not most, of the material filed by Ms Hutchinson in the six affidavits that she seeks to rely upon at trial, will be held to be inadmissible because it is no more than mere speculation. But, without some analysis as to what is admissible evidence and what is not, the broad proposition that much of what is sought to be relied upon may be inadmissible because Ms Hutchinson is prone to speculation, is unhelpful.

24    I turn then to the first basis. Comcare says that on the submissions made and material filed by Ms Hutchinson she has no reasonable prospect of establishing the existence of the prohibited reason in relation to any of the detriments alleged. There is, however, no engagement in the submissions made by Comcare with either the submissions of Ms Hutchinson or the material which she seeks to rely upon at trial.

25    The proposition that, on the evidence filed, Ms Hutchinson has no reasonable prospect of establishing that Comcare held the prohibited reason in relation to any of the detriments alleged, needed to be demonstrated in this way. First, that Ms Hutchinson has not relied upon any direct evidence of the existence of a prohibited reason. Second, that the circumstantial evidence relied upon by Ms Hutchinson in relation to each detriment alleged, does not sustain an arguable inference that a prohibited reason existed.

26    That Ms Hutchinson does not rely upon the direct evidence of the employees of Comcare she claims held the prohibited reason is apparent. Accordingly, if Comcare had persuaded me that there is no arguable basis to sustain an inference that the relevant employee or employees who caused each particular detriment held the prohibited reason, I would have summarily dismissed Ms Hutchinson’s application.

27    However, Comcare’s submissions make no such argument and contain no analysis of the material relied upon by Ms Hutchinson necessary for it to have made out the proposition that needed to be established for it to have succeeded on this application. Essentially, all that Comcare’s submissions says, and this is said generally rather than specifically to each of the alleged detriments, is that:

(i)    the lodging of the first PID by Ms Hutchinson was not a “cataclysmic” event, it was “old hat” and “cannot plausibly have motivated the Respondent to cause Ms Hutchinson detriment”;

(ii)    the alleged detriments are “by and large” common place and unremarkable administrative decisions; and

(iii)    there are “contra-indicators” that the conduct impugned by Ms Hutchinson involved unlawful decision making, including that (at [17]):

(a)    the Respondent’s decisions tended to be reduced to writing, and contain prima facie sound supported reasoning for the decision;

(b)    the Respondent’s decisions tend to stand, even after reconsideration by, or appeal to, another decision-maker;

(c)    Ms Hutchinson has a history of taking her grievances about the Respondent’s decision-making to external bodies, where she does not fare any better;

(d)    there would need to be a multitude of officers within the Respondent who, alone or in concert, were acting unlawfully, in order of Ms Hutchinson’s allegations of reprisal to be correct: the greater the collusion, conspiracy or wrongdoing required to establish liability, the less likely it is that any unlawful activity has occurred;

(e)    Ms Hutchinson’s narrative of “reprisal” action cannot assimilate the occasions where the Respondent makes decisions in her favour

28    I accept that most (perhaps all) of the matters just referred to deal with subjects capable of providing some support for a contention denying that an arguable inference is available that the relevant employees of Comcare held a prohibited reason. However, the submissions are put in broad, general and conclusory terms. They lack any particularity and fail to identify what evidence supports the conclusions asserted.

29    Comcare is the moving party on the summary judgment application. It bears the onus of making out a case for summary judgment. It is not for the Court to make out that case by engaging with the material in the way that Comcare’s submissions have failed to do. Such a course would be inappropriate for a number of reasons including that it would deny Ms Hutchinson a proper opportunity to be heard.

30    I am conscious of the size of the task that should have been undertaken, and would be sympathetic to a complaint that many of the difficulties involved in undertaking that task are caused by the manner in which Ms Hutchinson has presented the material she seeks to rely upon. However, those difficulties cannot circumvent Comcare’s onus to make out its case.

31    I am not persuaded on the case put by Comcare that I should be satisfied that no arguable inference is available that, in relation to any of the detriments alleged, a prohibited reason was held by the employee or employees of Comcare alleged to have caused that detriment.

32    Accordingly, Comcare’s application for summary judgment based on its contention that Ms Hutchinson has no reasonable prospect of establishing the existence of the prohibited reason must be rejected.

33    A second basis for Comcare’s application for summary judgment is that Ms Hutchinson’s claim is an abuse of process because it is being pursued for collateral purposes. Two such purposes are identified in Comcare’s submissions as follows:

(i)    wide ranging and oppressive allegations about the improper “government” agendas within the Respondent, above and beyond any alleged treatment of the Applicant because of the Applicant’s public interest disclosures; and

(ii)    to use the Court as a de facto rehearing or appeal of decisions made regarding the SRC Claim.

34    The first aspect of the asserted abuse of process is that Ms Hutchinson makes wide ranging and oppressive allegations about improper government agendas which is said to have little or nothing to do with her allegations that she was mistreated because she made a PID.

35    Comcare’s submissions do not identify all of the allegations said to fall into this category but give two examples as follows:

(i)    “Comcare is being driven by a government agenda and not for the provision of appropriate public services to the taxpayer;” and

(ii)     “When this matter does finally come before the Court, Comcare will be shown to be the distillation of all that is rotten at the core of public services agencies and departments that embody the embarrassingly well known mantra of, ‘delay, deny and hope they die’.

36    Comcare says that it “ought not be put to the time, effort and expense of defending an application of such grandstanding and baseless rhetoric”.

37    The simple answer to Comcare’s complaint is that, insofar as the material relied on by Ms Hutchinson includes “grandstanding and baseless rhetoric” or involves allegations of “improper government agendas” irrelevant to Ms Hutchinson’s claim under the PID Act, Comcare will be put to little effort or expense because Comcare will not need to respond to that material. If the material is irrelevant or otherwise inadmissible, it will not be admitted. If the material bears the character which Comcare says it does, then beyond identifying material of that character and objecting to its reception, Comcare will not be further burdened.

38    In any event, Comcare’s case on this point cannot be made out simply by referring the Court to two examples in a submission comprising two short paragraphs. Again, what Comcare seeks to do is to have the Court analyse the material and make out Comcare’s case for it. That is not a process that the Court should or will embark upon.

39    As I said in Energy Australia Yallourn Pty Ltd v Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 1245 at [150], it is uncontroversial that a person asserting an abuse of process bears a heavy onus. Guiding principles applicable to establishing an abuse of process are helpfully set out by Robson AJA (with whom Neave and Harper JJ agreed) in Kermani v Westpac Banking Corporation [2012] 36 VR 130 at [97]. One such principle is that the jurisdiction to stay a proceeding for an abuse of process “should only be exercised in exceptional cases or sparingly with the utmost caution”.

40    The second reason that Comcare alleges that there is an abuse of process is that the proceeding is being used for the collateral purpose of re-litigating decisions made in relation to various claims made by Ms Hutchinson under the SRC Act. As the principles set out in Kermani show, the Court’s jurisdiction to stay a proceeding for abuse of process extends to circumstances where the proceeding involves an attempt to re-litigate matters which have already been authoritatively determined.

41    However, the affidavit filed in support of Comcare’s application contains no reference to this aspect of Comcare’s application and provides no evidence in support of it. Comcare’s submissions contain three short paragraphs. The first states that Ms Hutchinson has been pursuing claims under the SRC Act since 2011, and that she is clearly unhappy with “various administrative decisions” made under that Act. The second paragraph states that the Court ought not permit Ms Hutchinson “by side wind in this proceeding” to seek more favourable outcomes in respect of her compensation claims under the SRC Act. That is followed by the entirely unparticularised assertion that “what is sought by the applicant in this proceeding is not only the forced remaking of such decisions, but the remaking of such decisions with a predetermined outcome – in favour of Ms Hutchinson”. The third paragraph asserts, without any argument as to why the assertion should be accepted, that the only relief that is “plausibly available” to be granted by the Court, if any of the decisions made under the SRC Act constituted a “reprisal”, is an order that the decision be made again according to law. It is said, however, that that is not the relief that Ms Hutchinson seeks.

42    It is not clear to me why Comcare suggests that the form of relief being sought by Ms Hutchinson supports the existence of the collateral purpose for which Comcare contends. As to the other aspects of Comcare’s submission in support of this contention, having provided no evidence and having not engaged with the material already filed or the relevant applicable principles, Comcare does no more than invite the Court to make out its case for it.

43    For all those reasons, Comcare’s application for summary judgment must be dismissed.

44    Comcare’s interlocutory application also seeks an order (order 3), in the alternative, that Ms Hutchinson’s application be stayed and that she be given conditional leave to file proposed contentions of fact and law for the purposes of the Court determining whether leave should be given to Ms Hutchinson to file and serve those contentions. The condition on the grant of leave is that the contentions of fact and law be prepared by a lawyer who certifies that the factual and legal material available to the lawyer at the time the contentions are prepared, provide a proper basis for each allegation there made.

45    The submissions of Comcare say nothing in support of the order sought other than to say that the order is appropriate “in light of Ms Hutchinson’s inability to articulate her claims on other than an oppressive and ill-conceived basis”. Again, the basis for the making of the orders sought is not articulated and I will not make it in the absence of proper articulation.

46    However, I take the view that Comcare should be given a further opportunity to articulate the basis upon which it seeks order 3 of the orders sought in its interlocutory application. If Comcare seeks to take that opportunity, it may do so at a forthcoming case management hearing which will be listed in accordance with the orders I will now make.

47    I will make an order that Comcare’s interlocutory application of 16 February 2018 be dismissed in so far as that application seeks an order for summary judgment. I will reserve the costs of that interlocutory application.

Associate:

Dated:    7 August 2018