FEDERAL COURT OF AUSTRALIA

Dunkerley v Comcare [2019] FCA 1002

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application dated 9 October 2018 to set aside bankruptcy notice BN229029 is dismissed.

2.    The applicant pay the respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    The applicant (Ms Dunkerley) seeks to set aside a bankruptcy notice under r 3.02 of the Federal Court (Bankruptcy) Rules 2016 (Cth) (Bankruptcy Rules) and s 41(6A)(b) of the Bankruptcy Act 1966 (Cth) (Act).

2    Ms Dunkerley has been involved as a party in numerous administrative and legal proceedings over several years, some of which provide important background to the bankruptcy notice (BN229029) which was served on her on 24 September 2018.

3    The bankruptcy notice is based upon various costs orders made against Ms Dunkerley in relation to the following matters:

(a)    proceedings in this Court (ACD45/2014) which were commenced by Ms Dunkerley seeking judicial review of a decision of the Administrative Appeals Tribunal (AAT) ([2014] AATA 381) in which Ms Dunkerley unsuccessfully sought review of a Comcare decision dated 28 June 2013 which denied liability for medical expenses and incapacity under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) (First Federal Court Proceedings);

(b)    an appeal to the Full Court of this Court (ACD44/2015) from the First Federal Court Proceedings (Second Federal Court Proceedings); and

(c)    an application in this Court for an extension of time and leave to appeal (ACD124/2015) the Second Federal Court Proceedings (Third Federal Court Proceedings).

4    In brief, Ms Dunkerley claims that she does not owe the debt alleged in the bankruptcy notice because Comcare committed fraud and breached its model litigation obligations, its counsel engaged in professional misconduct and Judges of this Court who dealt with Ms Dunkerley’s earlier proceedings failed to comply with relevant Federal Court Rules 2011 (Cth) (2011 FCRs), made costs orders against her without evidence, and the bankruptcy notice is an abuse of process.

5    For reasons which will be given shortly, Ms Dunkerley has failed to establish any sufficient basis upon which the Court should go behind the judgments which resulted in the costs orders which form the basis of the bankruptcy notice nor has she made good her serious allegations of abuse of process, fraud and other misconduct by Comcare. Her application will be set aside, with costs.

6    Before describing Ms Dunkerley’s claims in more detail, it is desirable to outline the relevant events which lead to the present application.

Summary of background events

7    Ms Dunkerley is a teacher. On 24 October 2007, she suffered an injury described as an “adjustment disorder with anxious mood” which she claimed was contributed to, in significant measure, by her employment at the former Commonwealth Department of Education, Science and Training (DEST). Although initially attempts were made to return her to work in another area of DEST, these attempts were unsuccessful and she was transferred to the Department of Industry, Innovation, Science, Research and Tertiary Education (DIISR) in May 2008.

8    Comcare initially declined liability for the October 2007 injury. On 16 June 2009, the AAT made a consent decision in which Comcare accepted liability for Ms Dunkerley’s injury suffered on 24 October 2007.

9    In March 2009, Dr George (a psychiatrist), concluded that Ms Dunkerley no longer presented with any psychiatric diagnosis and that she had full capacity to return to work.

10    On 1 September 2009, Ms Dunkerley made a claim for compensation from Comcare for aggravation of her condition arising from her interactions with a more senior colleague at DIISR in July 2009 in the context of her participation in a promotion round. This claim for aggravation was rejected by Comcare on 8 December 2009 and its decision was upheld on an internal review by Comcare on 11 February 2010. Ms Dunkerley sought a review of Comcare’s decision in the AAT.

11    Comcare’s decision was affirmed by the AAT in its decision dated 17 November 2010, which is reported as Re Dunkerley and Comcare [2010] AATA 915 (First AAT Decision). The AAT found that Ms Dunkerley’s aggravation had been suffered as a result of the feedback that she received from her more senior colleague (who was the Chair of the Selection Advisory Committee) on 17 July 2009. The feedback related to her unsuccessful attempt to obtain a promotion and the AAT found that it constituted reasonable administrative action taken in a reasonable manner in respect of her employment and that, accordingly, there was no “injury” for the purposes of s 5A of the SRC Act.

12    Ms Dunkerley appealed the First AAT Decision to this Court. The appeal was dismissed by Perram J on 3 February 2012. His Honour’s reasons for judgment are reported as Dunkerley v Administrative Appeals Tribunal [2012] FCA 41. Comcare did not seek costs against Ms Dunkerley and none was ordered.

13    Ms Dunkerley appealed to the Full Court from Perram J’s decision. On 13 September 2012, the appeal was dismissed by Lander, Logan and Barker JJ. Their Honours’ reasons for judgment are reported as Dunkerley v Comcare [2012] FCAFC 132; 131 ALD 1. An order for costs was made in favour of Comcare. Comcare did not pursue those costs and they do not form part of the basis of the bankruptcy notice which is the subject of the present proceeding.

14    Before describing the background to the three costs orders which form the basis of the bankruptcy notice, it is apt to say something about other proceedings in the AAT involving Ms Dunkerley and Comcare which preceded the making of those three costs orders.

15    In early May 2013, Ms Dunkerley reagitated her claim for compensation arising from her October 2007 injury. On 20 May 2013, Comcare denied liability to pay Ms Dunkerley compensation under ss 16 and 19 of the SRC Act from 2 March 2009 to the date of that determination in relation to Ms Dunkerley’s “adjustment disorder with anxious mood” suffered on 24 October 2007. The basis for the denial was Comcare’s determination that Ms Dunkerley had recovered from the injury suffered on 24 October 2007 by no later than 2 March 2009. Comcare’s determination that Ms Dunkerley had recovered from her injury was based on a medical report by a medical practitioner named Dr George. This decision was affirmed on internal review and Ms Dunkerley then sought review of that internal review decision in the AAT. On 18 June 2014, the AAT affirmed Comcare’s decision (the Second AAT Decision). It found that, as at 2 March 2009, Ms Dunkerley did not suffer from a “Axis 1 psychiatric disorder”, and did not at that time suffer incapacity for work nor require further medical treatment for the injury suffered on 24 October 2007. The Second AAT Decision is reported as Re Dunkerley and Comcare [2014] AATA 381.

16    Ms Dunkerley appealed the Second AAT Decision to this Court. Ms Dunkerley represented herself. On 27 April 2015, Perram J dismissed the appeal and ordered Ms Dunkerley to pay Comcare’s costs. The decision is reported as Dunkerley v Comcare [2015] FCA 392. This is the First Federal Court Proceedings. Justice Perram concluded that Ms Dunkerley’s appeal was “devoid of merit” and at [28] he recorded his view “that the proceedings are beginning to border on the vexatious”. His Honour stated at [12] that Ms Dunkerley’s claim was “one for aggravation of her pre-existing condition” and that it was treated as such by all concerned. Liability was declined, however, on the basis that the conduct which underpinned the aggravation was “reasonable administrative action” within the meaning of s 5A(2) of the SRC Act. In brief, Perram J found that:

(a)    contrary to Ms Dunkerley’s contention, neither the AAT nor Comcare were bound by the medical certificates which Ms Dunkerley had obtained in respect of the conduct which underpinned the aggravation of her pre-existing 2007 adjustment disorder;

(b)    the AAT did not err in relying upon Dr George’s opinion in concluding that the 2007 injury was not causing Ms Dunkerley any ongoing disability; and

(c)    contrary to Ms Dunkerley’s allegation, Comcare had not behaved inappropriately and a breach of the Model Litigant Guidelines had no consequences in civil litigation.

17    Comcare enforced the costs order in its favour made in the First Federal Court Proceedings. On 15 September 2017, the Registrar issued a certificate of taxation in Comcare’s favour in the amount of $24,335.90. This figure forms part of the total amount stipulated in the bankruptcy notice.

18    As noted in [3] above, Ms Dunkerley appealed the orders made in the First Federal Court Proceedings. The appeal was case managed by Flick J. Comcare filed a notice of objection to competency and a notice of contention which claimed that Ms Dunkerley had not identified a “question of law” as required by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). On 10 June 2015, at a case management hearing, the Court ordered Ms Dunkerley to complete an appeal book by 26 June 2015 and to file an outline of written submissions by 9 July 2015. A further case management hearing was scheduled. Ms Dunkerley failed to appear at that directions hearing (held on 23 July 2019). Ms Dunkerley also failed to comply with the directions made on 10 June 2015.

19    On 3 August 2015, Comcare filed an interlocutory application seeking that the appeal be dismissed on the basis of Ms Dunkerley’s failure to comply with the Court’s directions made on 10 June 2015. This application was heard by Flick J on 25 August 2015. Ms Dunkerley appeared and represented herself. His Honour reserved his judgment. On 8 October 2015, Flick J dismissed Ms Dunkerley’s appeal pursuant to s 25(2B)(bb)(i) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 36.74(1)(a) of the 2011 FCRs on the basis of Ms Dunkerley’s failure to comply with the 10 June 2015 directions. Ms Dunkerley was ordered to pay Comcare’s costs of its interlocutory application filed on 3 August 2015. These are the Second Federal Court Proceedings which are reported as Dunkerley v Comcare [2015] FCA 1076. On 15 September 2015, a certificate of taxation was issued in an amount of $24,031.76, which amount forms part of the total amount stipulated in the bankruptcy notice.

20    Ms Dunkerley applied for an extension of time in which to appeal the orders made in the Second Federal Court Proceedings. The application was heard by Rares J on 15 December 2015, when Ms Dunkerley appeared and represented herself.

21    On 15 December 2015, the application for an extension of time was dismissed, with costs. His Honour published reasons for judgment on 2 February 2016. The judgment is reported as Dunkerley v Comcare [2015] FCA 1519. These are the Third Federal Court Proceedings.

22    On 15 September 2017, a certificate of taxation was issued in the amount of $14,300 in the Third Federal Court Proceedings. This amount forms part of the total amount stipulated in the bankruptcy notice.

23    On or about 12 August 2016, Ms Dunkerley sought special leave to appeal in the High Court from Rares J’s judgment. This application was dismissed on 10 November 2016. It does not form any part of the basis of the bankruptcy notice.

24    For completeness, it should be noted that other proceedings in which Ms Dunkerley was involved in 2011, when she sued the Commonwealth, Comcare and the then Prime Minister in the Supreme Court of the Australian Capital Territory (which proceedings were dismissed with costs), do not form part of the bankruptcy notice. As Perram J also noted in the First Federal Court Proceedings, Ms Dunkerley also brought proceedings in relation to her employer’s decision on 20 June 2012 to terminate her employment when she failed to comply with a direction that she return to work. Her application for reinstatement on the basis of unfair dismissal was dismissed by the Fair Work Commission on 4 December 2012.

25    On 27 September 2017, Comcare served Ms Dunkerley with three certificates of taxation in respect of the First, Second and Third Federal Court Proceedings. On 24 September 2018, Comcare requested the Official Receiver to issue a bankruptcy notice to Ms Dunkerley. Bankruptcy Notice BN229029 was served on Ms Dunkerley on 25 September 2018. On 9 October 2018 Ms Dunkerley applied to have this bankruptcy notice set aside.

26    Comcare claims that Ms Dunkerley has no application or appeal presently on foot to set aside the costs orders made in any of the First, Second or Third Federal Court Proceedings, nor has she made a counter-claim, set-off or cross demand. This is not disputed.

Ms Dunkerley’s claims summarised

27    Without intending any disrespect, and acknowledging the challenges which confront a litigant in person, it has been a difficult task to understand the essence of Ms Dunkerley’s claims notwithstanding the various written documents prepared by her and provided to the Court, as well as in her oral submissions. It is notable that each of Perram and Flick JJ also commented on the lack of clarity in Ms Dunkerley’s claims.

28    Against that background, and to safeguard against any inadvertent omission to address the significant parts of Ms Dunkerley’s case, I will summarise her submissions at greater length than ordinarily would be the case.

(a) Ms Dunkerley’s statement of facts, issues and contentions

29    Ms Dunkerley filed a 10 page statement of facts, issues and contentions dated 26 March 2019. The document was not easy to follow. The bulk was directed to claims that there were multiple errors in the various decisions made by administrative and judicial officers alike. A central issue in the present proceeding is whether the Court is entitled to go behind the three relevant judgments giving rise to the costs orders on the basis of the alleged errors.

30    Ms Dunkerley’s claims in that document appear to be are as follows. First, Ms Dunkerley claimed that three medical certificates dated 21 July 2009, 11 August 2009 and 28 August 2009 respectively, which were referred to in her 2009 claim for “aggravation of adjustment disorder with anxious mood”, demonstrated that the July 2009 incident (as described in [11] above) related to the earlier claim in 2007. She said that the certificates established a causal relationship “and proved beyond reasonable doubt that the 2009 injury was an aggravation of the 2007 injury for which liability was accepted”.

31    Secondly, Ms Dunkerley contended that she never made a claim for “aggravation of adjustment reaction disorder with mixed emotional features” and there was no medical certificate dated 20 July 2009 in relation to that subject. Nevertheless, she complained that Comcare denied liability in respect of this non-existent claim.

32    Thirdly, and related to the complaint immediately above, Ms Dunkerley contended that it was inappropriate for the AAT and the Federal Court to affirm Comcare’s decision dated 8 December 2009, which was a denial of liability in respect of a non-existent claim for compensation. She claimed that Comcare “has committed and continues to commit perjury by arguing in litigation that a section 14 can be applied to a non-existent claim to deny liability for an accepted injury” (sic).

33    Fourthly, Ms Dunkerley complained that any Comcare claims manager is required to act in accordance with the Comcare Manual. She said that the case manager’s determination dated 20 May 2013, in which it was determined that Ms Dunkerley did not presently suffer from the effects of her compensable condition, failed to consider or assess the new 2009 claim for the aggravation of the compensable condition “adjustment disorder with anxious mood”. Moreover, Ms Dunkerley complained that the case manager failed to consider matters which had to be considered in assessing if medical treatment was obtained in relation to a compensable condition, namely:

(a)    what caused the need for the treatment;

(b)    whether the employee had previously recovered from their compensable condition; and

(c)    whether the employee has suffered from a significant worsening of their compensable condition as a result of a new cause (being a new injury/aggravation as likely occurred).

34    Ms Dunkerley complained that the case manager failed to assess entitlements in respect of medical expenses under s 16 of the SRC Act, as well as incapacity entitlements under s 19 in relation to the aggravation of the compensable injury.

35    Fifthly, Ms Dunkerley complained that Comcare’s determination dated 20 May 2013 contained statements which were inconsistent with previous statements made by Comcare in a letter dated 29 January 2010. The claimed inconsistencies related to Comcare’s responses to questions raised by Ms Dunkerley as to how Comcare determined that, by 20 July 2009, she had developed a new medical condition and whether Comcare had medical advice to support the claim that her adjustment disorder with anxious mood was cured between 10 June and 20 July 2009.

36    Sixthly, Ms Dunkerley complained that it was “an overt falsehood” for Comcare to state in the reasons for its determination dated 20 May 2013 that the case manager had had regard to all the evidence within Ms Dunkerley’s claim file, as well as the reasons for requesting a reconsideration and the relevant provisions of the SRC Act. This was because Comcare later acknowledged that it did not have “regard to all the evidence contained within your claim file as there were medical certificates missing”.

37    The missing medical certificates are dated 2 October 2009, 20 November 2009 and 27 November 2009. Comcare said that it had only been able to locate medical certificates dated 29 January 2010 and 5 March 2010. Ms Dunkerley complained that Comcare should have sought to obtain copies of the missing medical certificates in accordance with its obligation under s 69 of the SRC Act. She submitted that consideration of the missing 2009 medical certificates would have established a causal relationship and would have provided a basis for an entitlement under ss 16 and 19 of the SRC Act. She complained that she was not given an opportunity to ensure that all relevant medical evidence would be considered and that Comcare conducted the internal review knowing that “crucial medical evidence” was missing. She complained that the 20 May 2013 determination was drafted in accordance with JPA 2005/06 and that where a s 14 determination had been made that there is an entitlement to compensation there is no scope for a “cease effects decision” to apply, whereas Comcare imposed a cessation of entitlements dated 2 March 2009. Ms Dunkerley contended that this was inconsistent with Australian Postal Corporation v Oudyn [2003] FCA 318; 73 ALD 659 (Oudyn), where Cooper J found that liability cannot “cease” under s 14 unless the determining authority issues a motion under s 62(1) to vary or set aside the s 14 decision, and this did not occur here.

38    Ms Dunkerley also relied upon the Full Court’s decision in Plumb v Comcare (1992) 36 FCR 236 (Plumb) which, she contended, stands for the proposition that a determining authority cannot bind itself, in advance, to reject any future application on the basis of a determination made to cease payment of compensation for an injury under a particular provision of the SRC Act.

39    Ms Dunkerley summed up her submissions, after referring to some other authorities, in the following way (without alteration):

In other words, Comcare cannot make a s 14 decision in June 2009 accepting liability for an injury 2007, and one month later in July 2009 make another s 14 finding in respect of a different injury denying liability for the compensable injury. Or claim that the 2007 compensable injury ceased in March 2009 based on Dr George’s Report, when liability accepted in June 2009 did not specify an injury end date.

40    Finally, relying upon Comcare’s obligation under s 69 of the SRC Act, to make determinations “accurately” in relation to claims under that legislation, Ms Dunkerley urged the Court to recognise her entitlements pursuant to ss 16 and 19 for aggravation of the 2007 injury, in circumstances where Comcare had accepted liability under s 14 of the SRC Act for the 2007 injury.

41    In parts of her statement of facts, issues and contentions, Ms Dunkerley referred to various annexures to her affidavits as providing evidentiary support for her claims.

(b) Ms Dunkerley’s response to Comcare’s submissions

42    The day before the scheduled hearing, Ms Dunkerley provided an 8 page written response to Comcare’s outline of submissions. She reiterated her claim that Comcare has “invoked the court’s process and procedures for an illegitimate purpose, namely to support and legitimise its decision to avoid its obligations under s 69 of the SRC Act to make determinations “accurately” in relation to claims made under the Act”. She said that Comcare’s actions were “vexatious”.

43    Ms Dunkerley questioned Comcare’s interpretation of Telstra Corporation v Hannaford [2006] FCAFC 87; 151 FCR 253 (Hannaford), and said that it was “very narrow and limited”. She submitted that Hannaford stood for the proposition that a decision-maker is prohibited from making a decision which is inconsistent with an earlier accepted condition. Thus, Comcare’s claim that her accepted 2007 injury “i.e. adjustment disorder with anxious mood” had ceased is inconsistent with its earlier decision.

44    Ms Dunkerley submitted that where a s 14 determination is made and a claim for compensation is made under ss 16 or 19, a determining authority is restricted to considering the claimant’s entitlement under ss 16 or 19 alone and not with regard to liability under s 14. Thus, she submitted that given that her claim for compensation was made under ss 16 or 19, the claim had to be determined on that basis and not by reference to liability under s 14. Ms Dunkerley reiterated her reliance on Oudyn for the proposition that a determining authority cannot make a decision accepting liability for a period of time under s 14 and thereafter determine that the claim does not satisfy s 14 for the more recent period of time. She contended that this view was consistent with the Full Court’s decision in Plumb as well as Rosillo v Telstra Corporation Limited [2003] FCA 1628; 77 ALD 396 (Rosillo).

45    Ms Dunkerley described as “misleading” Comcare’s claim that the 2007 injury no longer existed on the basis of the March 2009 medical report by Dr George. She submitted that that report “could not and did not address the relapse (sic) “aggravation of adjustment disorder with anxious mood” addressed by medical certificates dated 21 July 2009, 11 April 2009 and 28 August 2009”. Ms Dunkerley submitted that the report was not “fresh evidence” given that “it was requested to determine whether liability for the 2007 injury should be accepted” and that this acceptance of liability occurred in June 2009 following receipt of the March 2009 report. She submitted that it was a misinterpretation and a breach of the SRC Act to rely singularly on Dr George’s medical report and that the other medical reports outweighed the report by Dr George.

46    Ms Dunkerley submitted that Comcare’s litigation team “continues to practice perjury and fraud in litigation relating to this matter”. In respect of this serious allegation Ms Dunkerley made unparticularised references to evidence which had been provided in relation to various named lawyers and she added that her allegations of continuing perjury and fraud in relation to Comcare’s current counsel “will be proved at hearing”.

47    In support of her claim that she had not been given an opportunity to be heard before Flick J because there was no appeal book, Ms Dunkerley pointed to provisions in the 2011 FCRs which provide that, subject to any order or direction of the Court, appeal books must be prepared in accordance with Div 33.2 of the 2011 FCRs in the case of tribunal appeals.

48    Ms Dunkerley claimed that Comcare was not acting consistently with requirements of the Commonwealth’s Model Litigant Guidelines by suggesting that a correctly constructed Appeal Book is not mandatory and can be optional. Ms Dunkerley cited SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 (SZRUR) in support of her contention that, as an unrepresented party, she needed to be provided with sufficient information about the Court’s practice and procedure. She submitted that this was an important part of procedural fairness requirements, citing among other cases Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; 252 CLR 38 at [186] per Gageler J. Relatedly, Ms Dunkerley also claimed that Comcare contravened the Model Litigant Guidelines by relying on technical defences.

49    Finally, Ms Dunkerley described Comcare’s position as being that “evidence is not required at an appeal hearing”, and she submitted that this brings the administration of justice into disrepute and is contrary to s 140 of the Evidence Act 1995 (Cth).

(c) Ms Dunkerley’s notes

50    On the morning of the scheduled hearing, Ms Dunkerley emailed the Registry asking the Court to consider if another date was available if Comcare agreed. She said that the “prospect of a rushed hearing, and not being given a fair chance to be heard is not agreeable to me and causes much anxiety given my past experience”. Attached to Ms Dunkerley’s email were copies of 8 pages of “notes” which Ms Dunkerley said she had also made available to Comcare. The notes set out extracts from various documents, decisions and judgments, as well as containing references to the source documents for those extracts. In her oral submissions, Ms Dunkerley drew the Court’s attention to many of the matters set out in her notes.

51    For completeness, it should be noted that when the matter was called for hearing at 11:00 am on 30 April 2019 Ms Dunkerley appeared representing herself. She did not make a formal application for the proceeding to be adjourned. It may be this was because, when Ms Dunkerley was advised by the Registry on 20 March 2019 that the hearing would not commence before 11:00 am on 30 April 2019, Ms Dunkerley responded by an email dated 20 March 2019 at 4:32 pm, in which she said:

That suits thank you.

(d) Ms Dunkerley’s oral submissions

52    At the hearing, Ms Dunkerley read three affidavits affirmed by her, the first dated 9 October 2018, the second dated 25 January 2019 and the third dated 13 March 2019. Comcare made various objections to portions of each affidavit. The objections were substantially on the basis that the portions objected to were in the nature of submissions rather than evidence. Ms Dunkerley indicated that she was content for anything in her affidavits which was in the nature of submissions to be treated as such and not as evidence. Comcare also objected to certain paragraphs on the basis they only purported to summarise underlying documents. Those paragraphs were admitted subject to the underlying documents speaking for themselves.

53    Comcare read, without objection, two affidavits, one by Carmen King affirmed 22 October 2018, the other by Shelly Mulherin, affirmed 1 March 2019.

54    In her oral submissions, Ms Dunkerley went through parts of her evidence, particularly the medical evidence, and the procedural history which showed, she contended, that she was still suffering symptoms from her October 2007 injury well after March 2009, and that Comcare believed that to be the case in August 2009. Ms Dunkerley contended there was error in the earlier proceedings relating to her aggravation claim arising from the incident in July 2009.

55    In relation to the judgments concerning Comcare’s 20 May 2013 decision, Ms Dunkerley repeated her contentions from her appeal before Perram J in the First Federal Court Proceedings. A particular focus of her submissions were her claims that Comcare’s finding of fact that she had recovered from the October 2007 injury by March 2009 was erroneous and that Comcare should not have relied solely on Dr George’s report over the other medical reports prepared subsequently.

56    In relation to the Second Federal Court Proceedings before Flick J, Ms Dunkerley submitted that the proceedings before Flick J should not have continued as there was no appeal book. Ms Dunkerley contended that Flick J erred in dismissing her appeal for want of compliance with the case management orders, in circumstances where she was a self-represented litigant and there were other options open to him. Ms Dunkerley contended that her ability to articulate her case was affected by a flare up in her mental health condition.

57    When asked to particularise the reasons why the Court should go behind these judgments, Ms Dunkerley contended that the bankruptcy notice should be set aside as an abuse of process arising from procedural unfairness. Ms Dunkerley contended that the case management orders prevented her from presenting her case and dismissing her appeal for want of compliance with the case management orders was procedurally unfair.

58    In relation to the Third Federal Court Proceedings before Rares J, Ms Dunkerley contended that Rares J erred in finding that there was no error in Flick J’s exercise of discretion to dismiss the appeal proceedings. Ms Dunkerley reiterated her contentions regarding Flick J’s exercise of discretion and contended that in deciding not to further extend the dates for compliance with the case management orders, Flick J had not been impartial.

(e) Ms Dunkerley’s written reply

59    In response to Comcare’s written submissions which were filed after the hearing, Ms Dunkerley filed a 7 page written reply which focussed on the proceedings before Flick J. Ms Dunkerley disputed Flick J’s finding that there was no explanation for her failure to comply with the orders made on 10 June 2015. Ms Dunkerley submitted that Flick J refused to accommodate her request for an extended timeline and that she had said by email on 21 June 2015 that she could not meet the deadlines for various reasons. Ms Dunkerley submitted that in declining to accede to these requests or to accept them as satisfactory explanation for her failure to comply with the orders made on 10 June 2015 created an apprehension of bias, referring to Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 (Ebner) at [8].

60    On the issue of whether there was any merit in the appeal, Ms Dunkerley reiterated her submission that Flick J could not determine whether or not there was any merit in the absence of an appeal book. Ms Dunkerley submitted that it was incorrect to characterise Dr George’s report as fresh evidence as it was previously available, and she repeated her submission based on Oudyn. Ms Dunkerley submitted that Flick J was unable to “fully investigate the weight of the balance of the medical evidence” and that that evidence established that her later symptoms in 2009 remained attributable to the 2007 condition.

61    Ms Dunkerley submitted that there were four reasons why the Court should go behind the costs orders which may be summarised as follows:

(d)    Fraud – Comcare made a false representation before Flick J when it claimed in its interlocutory application that there was no explanation for Ms Dunkerley’s failure to comply with the 10 June 2015 orders. Ms Dunkerley submitted that this representation was false based on information in a letter sent by Comcare dated 29 July 2015. This letter gave notice of the interlocutory application and said that if non-compliance was not remedied by 21 August 2015, Comcare reserved its right to seek orders to have the proceeding dismissed.

(e)    No full investigation of the issues at trial – the absence of evidence before Flick J did not allow a full investigation of the issues at trial. Ms Dunkerley reiterated her submission that Comcare had committed fraud in the substantive proceeding, with the effect that there was doubt as to the validity of the costs order that followed.

(f)    Apprehension of bias – there was an apprehension of bias arising from Flick J’s case management rulings, resulting in the loss of an opportunity to make submissions before the Full Court.

(g)    Undermining the Court’s integrity – the processes and procedures of the Court had been converted into instruments of injustice by Comcare, and so brought the administration of justice into disrepute.

Comcare’s submissions summarised

62    Comcare provided a written outline of submissions prior to the hearing and its closing address was provided in writing after the hearing had concluded. As noted above, Ms Dunkerley provided a written reply to the latter document.

63    It is unnecessary to summarise Comcare’s submissions because they are substantially reflected in my reasons given below for dismissing Ms Dunkerley’s application.

Consideration and determination

64    It is well to commence with a summary of the relevant principles relating to an application to set aside a bankruptcy notice. Ms Dunkerley does not assert that she has a counter-claim, set-off or cross-demand. Nor does she claim that the bankruptcy notice is defective in form. It is generally recognised that the power of the Court to extend time under s 41(6A) of the Act carries with it the power to set aside the bankruptcy notice itself. The procedure is set out in r 3.02 of the Bankruptcy Rules.

65    Although there is no general discretion or broad ranging principle of fairness to set aside a bankruptcy notice, it is well established that there is an implied power to set aside a bankruptcy notice as an abuse of process (see, for example, Seller v Deputy Commissioner of Taxation [2011] FCA 865; 282 ALR 80 (Seller) at [14]-[20] per Flick J). This includes where the bankruptcy notice was issued for a collateral purpose (see Brumminghausen v Glavanics, unreported decision of Emmett J, 3 March 1998 and Maxwell Smith v S & E Hall Pty Ltd [2006] FCA 825; 233 ALR 81 at [45]-[52] per Jacobson J).

66    The relevant time to judge whether there is an abuse of process which warrants the setting aside of a bankruptcy notice is the time when the notice is issued and “subsequent events have relatively slight relevance” (see Killoran v Duncan [1999] FCA 1574 (Killoran) at [13] and [15] per Gyles J). It is uncontroversial that the Court’s power to set aside a bankruptcy notice is discretionary (see Killoran, supra). That is not to say, however, that a bankruptcy notice may not be set aside as an abuse of process if such abuse is evident in, for example, the creditor relying on it due to events which occurred after the bankruptcy notice was issued. In Killoran, Gyles J said that, in considering an application to set aside a bankruptcy notice as an abuse of process, it may also be relevant to consider whether there has been a bona fide offer of security by the debtor, or some other means of paying the underlying debt.

67    It is incontrovertible that Ms Dunkerley carries the onus of establishing the basis upon which the bankruptcy notice should be set aside (see Cavoli v Etl [2007] FCA 1191 at [17]).

68    I turn now to summarise the principles relating to the circumstances in which the Court may go behind a judgment debt. It is generally accepted that a Court will accept a judgment as being conclusive of the existence of a debt, however, the Court has a discretion in an appropriate case to go behind a judgment debt to examine whether there is in truth consideration for it. The relevant principles may be summarised as follows:

(a)    The Court has the power in an appropriate case to go behind a judgment in an application to set aside a bankruptcy notice, but that power “is not readily exercised if there has been a substantive hearing of the matter on its merits by the court in which the judgment was granted” (see Xu v Wan Ze Property Development (Aust) Pty Ltd (in liq) [2014] FCA 461; 315 ALR 523 at [55] (Xu) per Robertson J).

(b)    In determining whether to go behind a judgment on which a bankruptcy notice is based, the Court will take into account similar considerations to those which apply when determining whether or not to go behind a judgment on the hearing of a creditor’s petition (see Xu at [55], [118]-[120] and [131] per Robertson J).

(c)    Although the Court has the power in an appropriate case to go behind a judgment on which a bankruptcy notice is based, the Court does not have the power to set aside the judgment itself and it is also important to bear in mind that the Court is not hearing an appeal from the judgment on which a bankruptcy notice is based (Xu at [57]).

(d)    A judgment debt is usually expected to provide the most reliable statement of debt humanly attainable because the ordinary processes of the adversarial system provide a practical guarantee of reliability. That is why there usually is no occasion in a bankruptcy proceeding to investigate whether the judgment debt is a true reflection of the underlying debt (Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; 261 CLR 132 (Ramsay) at [68] per Kiefel CJ, Keane and Nettle JJ).

(e)    Ms Dunkerley must establish special circumstances for the Court to go behind the underlying judgment debt (Petrie v Redmond [1943] St R Qd 71 at 75-76 per Latham CJ, with whom Rich and McTiernan JJ agreed and see also Ramsay at [69] per Kiefel CJ, Keane and Nettle JJ). As a matter of practical experience, special circumstances of this nature are usually only when there has been a consent judgment, default judgment or some other circumstance which means the judgment debtor was unable to present his or her case on its merits in the litigation leading to the judgment debt (Ramsay at [70] per Kiefel CJ, Keane and Nettle JJ).

(f)    The Court is reluctant to go behind a judgment once it has been the subject of adjudication by a Court, even if there were problems relating to such matters as the debtor’s representation or some other unusual feature. It is accepted, however, that the Court can inquire into the validity of a judgment where there is evidence that it has, for example, been obtained by fraud, collusion or a miscarriage of justice, but the debtor carries the onus of establishing that the fraud was “directly material to the judgment” (see Kirk v Ashdown [1999] FCA 522) and Emerson v Wreckair Pty Ltd (1992) 33 FCR 581 (Emerson) at 588). There may be other substantial reasons for going behind a judgment debt, however, in the absence of some evidence of fraud, collusion or miscarriage of justice, a court sitting in bankruptcy will rarely have substantial reasons to investigate whether the judgment debt was truly owed (Ramsay at [111] per Edelman J).

(g)    It is insufficient to set aside a bankruptcy notice merely because the debtor establishes that a judgment is irregular because, for example, the pleadings or proof that were offered were inadequate to support the judgment or the judgment is for the wrong amount (see, for example, Re Skaff; Ex parte Farrow Mortgage Services Pty Ltd (1993) 41 FCR 331 per Drummond J and Re Bedford; Ex parte H E Sleigh (Queensland) Pty Ltd (1967) 9 FLR 497 per Gibbs J).

(h)    Absent some good reason for doing so, a Court exercising bankruptcy jurisdiction should avoid embarking on a course which amounts to a re-trial of the issues that have been determined by another Court after a contested hearing. This is, particularly so where that other Court’s determination has been the subject of an appeal because the appeal is the appropriate form in which to review the correctness of the judgment (Emerson at 588).

(i)    A court exercising jurisdiction in a bankruptcy proceeding should not re-litigate on the same evidence, a dispute which has already been fully litigated in adversarial proceedings (Doggett v Commonwealth Bank of Australia [2019] FCAFC 19 (Doggett) at [49] per Kerr, Davies and Thawley).

69    In my view, Ms Dunkerley has fallen far short of establishing any abuse of process as alleged by her, nor has she demonstrated any proper basis upon which the Court would go behind the judgments which produced the three costs orders upon which the bankruptcy notice is based. In truth, Ms Dunkerley’s application is an invitation to the Court to re-litigate essentially the same issues raised by her in the First, Second and Third Federal Court Proceedings and which were rejected by Perram, Flick and Rares JJ respectively for the detailed reasons given by each of their Honours. None of the other matters raised by her provide a proper basis for going behind those judgments having regard to the principles outlined above.

(a) The First Federal Court Proceedings

70    Ms Dunkerley’s complaints regarding the Second AAT decision were fully considered and dismissed by Perram J for the reasons given by his Honour. Those reasons included Perram J’s finding that Comcare has the power to reassess a claim, applying the Full Court’s decision in Hannaford. There is no foundation for Ms Dunkerley’s claim that Comcare’s case as presented before Perram J was not supported by Hannaford so as to give rise to fraud. Ms Dunkerley’s dissatisfaction with Perram J’s rejection of her appeal does not provide a proper basis for going behind his Honour’s judgment and consequential costs order.

71    It was well open to Perram J to conclude at [12] that Ms Dunkerley’s claim for compensation dated 1 September 2009 was a claim for aggravation for her pre-existing condition and that it was treated that way by all concerned. That finding reflects the contents of that application and, in particular, Ms Dunkerley’s express statement in her claim form that she was claiming compensation for “Aggravation to “adjustment disorder with anxious mood””.

72    Ms Dunkerley’s complaints concerning the conduct of Comcare’s claims manager as outlined in [33] and [34] above provide no adequate basis for going behind any of the relevant judgment debts. The same may be said in respect of her complaints which are outlined in [35] to [40] above. The matters raised therein effectively invite the Court in this proceeding to litigate issues which either were or could have been agitated before Perram J. As previously stated the current proceeding cannot be converted into a surrogate appeal from Perram J’s judgment, especially when Ms Dunkerley’s appeal from that judgment was dismissed by Flick J.

73    Ms Dunkerley’s criticisms of the significance attached to Dr George’s report do not provide a proper basis for going behind the judgment debts. In the Second AAT Decision, the AAT relied upon various medical evidence, including that of Dr George, in finding that Ms Dunkerley was not suffering the symptoms of her 2007 injury as at 2 March 2009. In doing so, the AAT took into account, but did not prefer, Ms Dunkerley’s evidence and her submissions to the effect that her 2007 injury continued to be symptomatic and her medical certificates which gave an injury date of 2007. As Comcare submitted, it was a matter for the AAT to make findings of fact about those medical issues. Perram J fully explained why he rejected Ms Dunkerley’s appeal from those findings.

74    As to Ms Dunkerley’s criticism of Perram J’s findings because he failed “to recognise the importance of medical certificates in the procedure for determining liability for medical treatment”, even if that alleged error was established it would not provide an appropriate basis for going behind his Honour’s judgment, not the least because Ms Dunkerley’s appeal from Perram J’s judgment was dismissed. That outcome should not be circumvented by conducting a surrogate appeal in the current proceeding. In any event, and for completeness, I do not accept that there was any such error on the part of Perram J when regard is had to s 57 of the SRC Act, which makes clear that neither Comcare nor the AAT is bound to accept the applicant’s medical certificates.

75    For substantially similar reasons, I do not accept that Ms Dunkerley’s reliance upon Oudyn provides a proper basis for going behind Perram J’s judgment. In that case, Mr Oudyn had an accepted claim for compensation. The delegate determined that he had no further entitlement to compensation under s 14 of the SRC Act. Subsequently Mr Oudyn lodged a claim for permanent impairment. That claim was treated as a request for reconsideration of the earlier determination. The delegate affirmed the decision to cease benefits and referred the claim for permanent impairment to the primary decision-maker who advised Mr Oudyn that she would not determine his claim as there was no further liability. Justice Cooper found that:

(a)    the determining authority did not have the power to exonerate itself from future liability or to foreclose a future claim;

(b)    the correct determination should have been that payment ceased because the circumstance entitling payment no longer existed or could not be made out by the claimant; and

(c)    the determination did not operate as a bar to future compensation.

76    In addition to the other considerations stated above as to why this proceeding should not be used as a surrogate appeal from Perram J’s decision, I accept Comcare’s submission that Oudyn is distinguishable. Comcare’s determination dated 20 May 2013 referred to a denial of “present” liability under ss 16 and 19 of the SRC Act because Ms Dunkerley was not “presently” suffering symptoms. A similar approach was taken in the internal review determination dated 28 June 2013. The Second AAT Decision was not directed to Comcare’s liability under s 14 of the SRC Act, but rather concerned Ms Dunkerley’s entitlement to compensation under ss 16 and 19. I accept Comcare’s submission that liability under s 14 remained, and continues to remain, extant.

(b) Second Federal Court Proceedings

77    Similarly, Ms Dunkerley’s complaints concerning Flick J’s judgment and orders effectively invite the Court to re-litigate the issues which were fully considered by his Honour and rejected for the detailed reasons he gave. In particular:

(a)    Flick J specifically addressed Ms Dunkerley’s cease effect/liability argument at [50];

(b)    Ms Dunkerley was not denied an opportunity to supplement the appeal book in any material way;

(c)    Ms Dunkerley herself was responsible for the failure to lodge the appeal book;

(d)    Flick J’s detailed reasons for judgment are inconsistent with Ms Dunkerley’s claims that his Honour failed to give her a hearing by not allowing an appeal book, failed to act in accordance with the 2011 FCRs, applied “conjecture” and failed to establish a standard of proof or have regard to the evidence;

(e)    contrary to Ms Dunkerley’s claim that Flick J failed to apply s 140 of the Evidence Act 1995 (Cth) or made a decision without any evidence, his Honour’s reasons for judgment plainly demonstrate that he did take into account evidence concerning Ms Dunkerley’s failures to comply with the timetable and that his Honour also considered the available materials relevant to whether or not her claims had any merit; and

(f)    Ms Dunkerley has not satisfied me that Flick J’s judgment was inconsistent with any of the FCRs.

78    Ms Dunkerley’s complaint that there was apprehended bias on the part of Flick J is without foundation and must be rejected. Ms Dunkerley’s dissatisfaction with Flick J’s judgment and orders is an insufficient basis to give rise to apprehended bias. There is nothing else in the conduct of the Second Federal Court Proceedings which would warrant a finding of apprehended bias with reference to the principles established in cases such as Ebner.

79    Ms Dunkerley’s submission that the proceeding before Flick J miscarried because Flick J was unable to determine whether there was any merit in her appeal in the absence of an appeal book is also rejected. The proceeding before Flick J was not in the nature of a substantive appeal, but rather involved an interlocutory hearing by his Honour sitting alone to determine whether the appeal proceeding should be dismissed for failure to comply with the Court’s orders. Ms Dunkerley was given a fair opportunity to persuade his Honour that the proceeding should not be dismissed. I respectfully agree with Rares J’s view that Flick J gave full and detailed reasons for rejecting Ms Dunkerley’s submissions as to why the appeal should not be dismissed.

80    Ms Dunkerley’s allegation of fraud by Comcare in the proceedings before Flick J is also baseless. The 29 July 2015 letter relied upon by Ms Dunkerley to show that the parties had agreed to an extension until 21 August 2015 was the same letter that informed her that Comcare had decided to make an interlocutory application seeking dismissal of the proceeding for want of compliance with the Court’s orders. The passage in the letter referred to said that Comcare reserved its right to seek an order for dismissal if Ms Dunkerley had not remedied her non-compliance by 21 August 2015. There was nothing misleading, let alone fraudulent, in Comcare subsequently submitting to Flick J there was no explanation for Ms Dunkerley’s failure to comply with the orders made on 10 June 2015.

81    Ms Dunkerley’s other serious allegations of fraud by Comcare and its lawyers seem to be based on a fundamental misconception that the making of a submission to the Court by a party in litigation which another party disagrees with constitutes a fraud on the Court.

(c) Third Federal Court Proceedings

82    Nor am I satisfied that there is any basis for going behind the judgment of Rares J who gave detailed reasons as to why he rejected Ms Dunkerley’s submissions concerning the orders made by Flick J. As noted above, it is also significant that Ms Dunkerley’s application for special leave to appeal to the High Court was unsuccessful in relation to Rares J’s judgment. Ms Dunkerley sought to agitate in the High Court similar issues to those raised by her in the present proceeding, including whether Rares J erred in relation to:

(a)    whether Flick J could determine Comcare’s interlocutory application without an appeal book;

(b)    if a “cease effects” decision had been made under s 14 of the SRC Act; and

(c)    whether there was a separate injury in 2009.

83    It is notable that, in refusing special leave, the High Court expressly stated that none of Ms Dunkerley’s in the present proceeding proposed appeal grounds enjoyed sufficient prospects of success to warrant a grant of special leave.

84    Against that background, it would be remarkable if this Court were to rely upon the same arguments advanced again by Ms Dunkerley as providing a basis for going behind the judgments of either Flick or Rares JJ.

Abuse of process claims

85    Ms Dunkerley’s submission that the processes and procedures of the Court have been converted into instruments of injustice is rejected. The submission does not identify with any particularity how the Court’s processes have been used or operated in a way that is unfair, vexatious or an abuse of process. Ms Dunkerley has the onus of establishing abuse of process and mere assertions of unreasonableness or unfairness are insufficient.

86    To the extent that Ms Dunkerley submitted that there was procedural unfairness which inhered in Flick J’s case management orders on 10 June 2015, leading to an abuse of process in dismissing her appeal for want of compliance with those orders, those submissions are rejected. Ms Dunkerley participated in the case management hearing on 10 June 2015 and had ample time to comply with the orders and remedy her non-compliance.

87    Ms Dunkerley’s submission that her failure to comply was due to a flare up in her mental health condition lacks adequate evidentiary support. The evidence before the Court does not reveal any application to vary the 10 June 2019 case management orders on the basis of a medical condition or any evidence of such condition. To the contrary, the reasons Ms Dunkerley gave for seeking more time were her travel overseas and professional responsibilities arising from her work as a teacher (see letter sent on 21 June 2015).

Conclusion

88    Ms Dunkerley has not shown any reasons, let alone special circumstances, that warrant going behind the costs orders and judgments that underlie the bankruptcy notice. In reality, Ms Dunkerley’s submissions were no more than an attempt to re-litigate the same issues of fact and law that had been considered and rejected in the prior proceedings.

89    Accordingly, the application to set aside the bankruptcy notice will be dismissed, with costs.

Associate:

Dated:    27 June 2019