FEDERAL COURT OF AUSTRALIA

Hutchinson v Comcare [2019] FCA 1440

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant do pay the respondent's costs to be assessed if not agreed.

3.    The costs of the appeal be assessed on a lump sum basis.

4.    If the parties agree on a lump sum figure in relation to the first respondent's costs, they are to file a joint minute of proposed orders on or before 19 September 2019.

5.    In the absence of any joint proposed order pursuant to order 4:

(a)    the respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Courts Costs Practice Note (GPN-COSTS).

(b)    within 14 days of the respondent filing a Costs Summary, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of GPN-COSTS.

6.    In the absence of any agreement having been reached, after the expiry of the time referred to in order 5(b), the matter of an appropriate lump sum figure for the respondent's costs be referred to a Registrar for determination on the papers.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Ms Hutchinson brings an appeal against a decision of a Deputy President of the Administrative Appeals Tribunal. The Tribunal decision concerned applications brought by Ms Hutchinson in the Tribunal for the review of two decisions by Comcare to the effect that she had no future entitlement to compensation for any injury arising out of or in the course of her employment. Prior to those decisions, Ms Hutchinson had been receiving compensation for a number of years. The Tribunal affirmed the decisions by Comcare.

2    At the heart of the complaint raised by Ms Hutchinson was a contention based upon the Tribunal 'standing in the shoes' of the original decision-maker. Ms Hutchinson submitted that as there was no medical evidence before the original decision-maker to support the decisions made, there was a denial of procedural fairness in the Tribunal proceeding on the basis of medical evidence that was not before the original decision-maker. She said that there was a denial of procedural fairness by the original decision-maker who decided the claims without any evidence and that should have been identified by the Tribunal.

3    In cases like the present, the Tribunal is entrusted with a statutory jurisdiction to exercise all the powers and discretions conferred on the original decision-maker: s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The High Court considered the nature of that jurisdiction in its recent decision in Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [14], [51].

4    When acting under s 43 of the AAT Act, the Tribunal exercises the same statutory power as was exercised by the original decision-maker. Its task is not to consider whether there was specific error in the reasoning or approach of the original decision-maker or to undertake the exercise of a different decision making power (even if it might have been undertaken by the original decision-maker). Rather, the Tribunal makes its own decision in the exercise of the same power exercised by the original decision-maker. It is in this sense that the Tribunal stands in the shoes of the original decision-maker. It undertakes a fresh exercise of the same power. In doing so, it is not confined to the material that was before the original decision-maker. Rather, the Tribunal makes its decision on the basis of the material presented to the Tribunal and does so as at the time the matter is considered by the Tribunal. It undertakes anew the same statutory task through fresh eyes aided by the Tribunal's own process and procedures.

5    On an appeal to this Court from a decision of the Tribunal, the process is quite different. An applicant must demonstrate an error of law in the Tribunal's decision. The Court does not undertake a review of the merits.

6    So, the first task is to discern the error of law by the Tribunal that is contended for by Ms Hutchinson. In her notice of appeal, Ms Hutchinson expressed the alleged questions of law in the following terms:

1.    The Tribunal failed to properly consider and weigh the medical evidence provided by the qualified medical specialists involved in the evolution of the conditions of Major Depressive Disorder and Post-traumatic Stress Disorder since 2011.

2.    The Tribunal in failing to consider the matter on a fair and balanced assessment of all the medical evidence presented has fallen into legal error and caused a breach of procedural fairness to occur.

7    Then, the notice of appeal sets out the following grounds:

(a)    Did the Tribunal fail to state and apply the correct standard of proof or ask the correct questions?

(b)    Did the Tribunal fail to consider or have regard to a submission of substance or a submission that would have affected the outcome?

(c)    Did the Tribunal fail to provide lawful or sufficient reasons in accordance with its obligation under Section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth)?

(d)    Did the Tribunal fail to take into account relevant considerations in making its decision?

(e)    Did the Tribunal make findings of fact for which there was no or insufficient evidence and which affected the reasoning for its decision?

8    Ms Hutchinson then filed written submissions. They recounted the circumstances in which a document provided by Ms Hutchinson to Comcare in December 2015 was alleged to have been 'unlawfully released' onto her compensation claim file at Comcare. The submissions then dealt with the circumstances in which a letter from Ms Hutchinson's treating psychologist dated 26 May 2017 (Psychologist) had been provided by her general medical practitioner to a claims manager at Comcare. The submissions then identified the following 'Issues on Appeal' (paras 2.1 to 2.4):

2.1    On a question of law, the Respondent breached the Privacy Act 1988 resulting in a denial of procedural fairness.

2.2    On a question of law, in failing to consider a matter that went directly to the issue of ameliorating the procedural fairness deficit caused by the Respondent the Tribunal compounded further denials of procedural fairness.

2.3    On a question of law the Tribunal did not put themselves in the primary decision maker's shoes as required but considered entirely new scenarios put forward by the Respondent and based on medical evidence that was sought many months after the original decision had been made thus constituting further denials of procedural fairness.

2.4    On a question of law the Tribunal took immaterial and irrelevant matters into account and failed to accord the credible and independently qualified medical evidence submitted proper consideration causing further breaches of procedural fairness to occur.

9    The submissions then developed two complaints about the decision of the Tribunal. First, they complained about an alleged breach of the Privacy Act 1988 (Cth) by reason of the circumstances in which certain information came to be in the hands of Comcare. However, the complaint did not rise to articulating any basis upon which there was information that was not properly before the Tribunal for its consideration. Rather the complaint was that the original decision-maker used what was described as 'the breached privacy information' even after being advised that the information had been obtained by 'an impermissible breach of privacy'.

10    Second, the submissions complained that the medical evidence before the original decision-maker did not support the decision to cease making compensation payments. In particular they objected to the fact that it was only after the application to the Tribunal that the medical evidence relied upon by the Tribunal in its decision was obtained and presented.

11    In longer reply submissions, Ms Hutchinson characterised her claim as being a denial of procedural fairness. In response to a submission for Comcare to the effect that Ms Hutchinson was seeking to persuade the Court to undertake merits review, Ms Hutchinson said:

[Counsel for Comcare] makes the embarrassing allegation that I am attempting to have the Court entertain an impermissible merits review of the decision …

Seriously, just who is it that [counsel] is trying to convince there is no discernible difference between a merits review and a procedural injustice?

This is not the first time [counsel] has resorted to ham fisted, deceitful artifice in an attempt to defeat a claim either.

12    This statement reveals that Ms Hutchinson's complaint was focussed upon a complaint about the tribunal's procedure. The reply submissions then stated that Ms Hutchinson's appeal relates wholly to denials of procedural fairness. She clarified her earlier statement of grounds (quoted above) by inserting additional words to that effect. The revised statement was expressed in the reply submissions in the following way (emphasis in original):

(a)    Did the Tribunal fail to state and apply the correct standard of proof or ask the correct questions in relation to the denials of procedural fairness identified?

(b)    Did the Tribunal fail to consider or have regard to a submission of substance or a submission relating to denials of procedural fairness that would have affected the outcome?

(c)    Did the Tribunal fail to provide lawful or sufficient reasons relating to denials of procedural fairness in accordance with its obligation under Section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth)?

(d)    Did the Tribunal fail to take into account relevant procedural fairness considerations in making its decision?

13    The submission then complained about the Tribunal's approach to complaints made by Ms Hutchinson about the conduct of lawyers involved in the proceedings for Comcare. In particular there was a complaint about alleged breaches of the model litigant policy. The Commonwealth's obligation to act as a model litigant is the subject of Appendix B to the Legal Services Directions 2017 made under s 55ZF of the Judiciary Act 1903 (Cth). The complaints culminated in the following general assertion concerning the conduct of the solicitors acting for Comcare:

[The solictors have] taken exception and exploited me as a self represented litigant and not missed a single opportunity to bully, intimidate, mislead and manipulate me likely due entirely to the fact they are dealing with someone who is vulnerable, in poor health, without financial means and most particularly because I am without legal representation.

14    No doubt there are considerable difficulties faced by litigants who have conduct of their own claims. The legal system can be complex. However, the Tribunal has accessible and relatively informal procedures which are designed to reduce those difficulties as much as possible. On appeal, this Court is concerned with whether there were any aspects of the procedure or decision-making adopted by the Tribunal that meant there was an error of law. None of the general allegations made in the reply submissions about breach of the model litigant policy have that character. None were advanced in a manner that might raise a basis to impugn the Tribunal's decision on appeal. There was no specific submission about how a particular aspect of the way the proceedings were conducted was unfair in the particular circumstances. Further, Ms Hutchinson's general complaint is to be evaluated in a context where she was encouraged by the Tribunal to participate in the hearing, but she only did so by filing written submissions and attending by telephone for part of the hearing. Ms Hutchinson's ability to participate may have been compromised by her medical conditions, but the Tribunal did take steps to involve her in the process as much as she was able.

15    The reply submissions also raise complaints about what occurred in previous proceedings finally determined by Barker J in Hutchinson v Comcare [2018] FCA 505. However, it is not open to Ms Hutchinson to seek to challenge in these proceedings the conclusions reached by Barker J in those proceedings. For Comcare it was submitted, in addition, that a number of the alleged contraventions of the Privacy Act raised by Ms Hutchinson in her submissions that were not framed as challenges to the decision of Barker J were also matters determined to have no merit by Barker J. However, for reasons which will emerge it is not necessary to determine whether that is the case.

16    The reply submissions then said that there were 'two clear and distinct denials of procedural fairness that occurred at the outset of the original matter being decided when my compensation claim was ceased'. The submissions then raised the following complaints:

(1)    Compensation was ceased 'without any requisite medical evidence'.

(2)    The Tribunal did not explain its reasons 'for failing to have proper regard to the substantive medical evidence that was on the compensation file since 2011, gave undue and improper weight and consideration to the biased and factually compromised medical opinion of [a clinical psychiatrist whose evidence was relied upon by Comcare (Psychiatrist)] sourced six and twelve months after the cease decision was made and for ignoring my request under s 42D of the AAT Act amongst other issues ... '.

(3)    A general claim that the Tribunal failed 'to pull … into line' counsel for Comcare during cross-examination of the Psychologist in circumstances where Ms Hutchinson had 'clearly indicated' that she did not wish to cross-examine due to her perception of being intimidated and bullied and her medical conditions.

(4)    Complaints about alleged 'blatant and unnecessary aggressiveness' during cross-examination of Ms Hutchinson which were advanced as an explanation for Ms Hutchinson being unable to comprehensively refute claims.

(5)    General complaints about the way the Psychologist was cross-examined and about submissions seeking to discredit the evidence of the Psychologist.

(6)    A restatement of complaints about the original decision being made by placing reliance on 'impermissibly sourced sensitive and personal information as the basis for the privacy breaches that infected the decisions'.

17    Therefore, the complaints raised by Ms Hutchinson may be summarised as follows:

(1)    Comcare breached the Privacy Act in relation to certain medical information.

(2)    The Tribunal did not confine its consideration to medical evidence that was before the original decision-maker and instead considered evidence obtained after the applications to the Tribunal for review.

(3)    The Tribunal did not constrain the way counsel for Comcare cross-examined the Psychologist and Ms Hutchinson.

(4)    The Tribunal did not consider all of the medical information on the file of Ms Hutchinson going back to 2011.

(5)    The Tribunal allowed lawyers for Comcare to bully and exploit Ms Hutchinson's disadvantage.

18    The Tribunal provided detailed reasons for its decision to affirm the decisions the subject of the applications for review. The reasoning of the Tribunal was as follows:

(1)    The background to the compensation claims by Ms Hutchinson was set out (paras 6 to 11);

(2)    The determinations by which compensation payments to Ms Hutchinson were brought to an end were described (paras 12 to 22);

(3)    The Tribunal summarised the issues as advanced by the parties (paras 23 to 26);

(4)    The Tribunal observed that many of the issues identified by Ms Hutchinson were not matters for determination by the Tribunal and were not relevant to the applications (para 27);

(5)    The Tribunal then undertook its own consideration of the issues for determination by reference to the relevant statutory provisions (paras 28 to 41);

(6)    The Tribunal concluded that the correct question was whether Ms Hutchinson suffers from an injury for which a claim for compensation has been made, noting that prior acceptance of liability for an injury was not a condition precedent to liability under the relevant statutory provisions (para 35);

(7)    The Tribunal recited that Ms Hutchinson appeared by telephone and how that came about (paras 42 to 45). Significantly, it recited that Ms Hutchinson indicated that other than being available to be cross-examined she did not propose to be involved in the oral hearing. Even so, the Tribunal took steps to encourage her participation. Nevertheless, much of the hearing proceeded without participation by Ms Hutchinson (paras 48 to 53);

(8)    It was observed that the Psychologist was the primary witness for Ms Hutchinson and the manner in which arrangements were made for the Psychologist to be made available for cross-examination were noted (para 46);

(9)    It was recorded that oral evidence was given by the Psychologist and by the Psychiatrist (para 47);

(10)    The materials received by the Tribunal were identified (para 54).

(11)    The Tribunal dealt with the medical evidence commencing with what it described as the 'first medical report relevant to the present proceedings' being a report of a consultant psychiatrist dated 4 March 2011 (para 55);

(12)    The history of reports from various medical practitioners was then recounted in an objective manner (paras 56 to 84);

(13)    The Tribunal then commenced a section of reasoning headed 'Consideration'. It began by saying '[i]n the end we have two divergent medical opinions'. It referred to the evidence of the Psychologist and the Psychiatrist (paras 85 and 86);

(14)    It then posed the question as to which medical evidence should be preferred and reasoned by reference to the reports and cross-examination of the Psychologist (paras 86 to 95);

(15)    The Tribunal then dealt with the origins of the claim by Ms Hutchinson and noted that it depended upon a death threat which occurred in the course of a diversity training workshop in March 2010 when participants were invited to give an example of bullying to the person next to them, after which the person next to Ms Hutchinson spoke words to Ms Hutchinson in the first person that expressed a threat to kill her. The Tribunal noted that the event was central to her claimed diagnosis of post-traumatic stress disorder (PTSD) and major depression. However, the criteria for PTSD referred to exposure to an event that involved actual or threatened death (para 95 and 96);

(16)    The Tribunal then dealt with relevant legal authorities (paras 99 to 103);

(17)    The Tribunal concluded that looked at objectively 'no reasonable person in the position of [Ms Hutchinson], in the context of the question posed by the facilitator in such a workshop, could have perceived the statement … as a threat to kill' (para 104);

(18)    The Tribunal then concluded that it generally preferred the evidence of the Psychiatrist over the Psychologist and gave logical reasons for that view (paras 105 to 109);

(19)    The Tribunal concluded that it accepted the opinion of the Psychiatrist (paras 109 to 111);

(20)    The Tribunal observed that factors contributing to Ms Hutchinson's medical condition included the stress associated with litigation against Comcare, trauma associated with dealing with her compensation claim, attempts to engage with Centrelink, delays in being assessed for a disability support pension and her perilous impecunious financial circumstances (paras 112 to 122);

(21)    By reason of these other contributors, the Tribunal did not accept that Ms Hutchinson's mental health issues were contributed to, to a significant degree, by her employment by Comcare (para 123).

19    I would characterise the Tribunal's reasoning as careful, measured and focussed on the key issue for determination, namely whether Ms Hutchinson suffered from an injury related to her employment for which she was entitled to ongoing compensation.

20    As to the matters raised by Ms Hutchinson in her submissions, for the following reasons none of those matters demonstrates any error of law in the Tribunal's reasons.

Alleged breach of the Privacy Act

21    The Tribunal did not deal with complaints by Ms Hutchinson that there had been breaches of the Privacy Act, in particular her complaint about the way a letter from the Psychologist had found its way to Comcare. The Tribunal was correct to find that its task did not involve adjudicating whether there had been a breach of the Privacy Act. Rather, as I stated at the outset of these reasons, its task was to undertake a fresh exercise of the statutory power to make decisions about Ms Hutchinson's claims to compensation payments. However, even assuming that there was a breach (a matter about which I express no view), it was not explained how it would be an error of law for the Tribunal to refer to the letter. Ms Hutchinson's claim relied upon the evidence of the Psychologist. In those circumstances, any opinion expressed by the Psychologist concerning the health of Ms Hutchinson was properly a matter for inquiry by the Tribunal. The letter (and all other documents held by the Psychologist relevant to the compensation claim being considered by the Tribunal) could have been required to have been produced for the purposes of the Tribunal hearing even if they had not found their way onto the Comcare file concerning the claims by Ms Hutchinson. Indeed, it would be usual for such documents to be requested. The complaints about breach of privacy do not demonstrate any basis for a claim of error of law by the Tribunal in receiving documents that Ms Hutchinson claims came into the hands of Comcare by conduct in breach of the Privacy Act.

Medical evidence obtained after the original decision

22    For reasons I have given, the material to be considered by the Tribunal was not confined to the material that was before the original decision-maker. The Tribunal could consider new material relevant to the exercise by the Tribunal of the same statutory power exercised by Comcare when it refused claims by Ms Hutchinson to further compensation. Therefore, there was no error of law by the Tribunal in considering the evidence of the Psychiatrist recorded in reports prepared after the commencement of the applications for review in the Tribunal.

Cross-examination

23    The submissions for Ms Hutchinson give no example of where the cross-examination of the Psychologist was allegedly conducted in a manner that was inappropriate as a matter of fair procedure. Nor is there indication of any finding by the Tribunal that was said to be affected by the complaints made about cross-examination. The general assertions made do not amount to a recognisable claim of error of law.

24    In the case of the complaints about the cross-examination of Ms Hutchinson there is the further difficulty that the Tribunal's conclusions did not rest upon any adverse finding concerning the evidence of Ms Hutchinson.

Other medical evidence

25    Contrary to the submissions made by Ms Hutchinson, the Tribunal did consider medical evidence other than that received from the Psychologist and the Psychiatrist. The Tribunal recounted what it considered to be the relevant history of the medical reports. There is no submission identifying particular material that was not considered and how that material was relevant and ought to have been addressed by the Tribunal. Ultimately, the Tribunal formed the view that the issue as to whether there was an injury that arose out of or in the course of employment, being an injury contributed to by the employment, turned upon the evidence of the Psychologist and the Psychiatrist. That approach was understandable given that the assessment to be made by the Tribunal related to a claim to a future entitlement to compensation and it was the evidence of these two practitioners that provided the most up to date assessments. Their evidence (being the most recent opinions concerning the medical condition of Ms Hutchinson) was referred to in detail. No error of law has been shown as to the way in which the Tribunal approached its consideration of the medical evidence.

Complaints about lawyers for Comcare

26    The submissions for Ms Hutchinson raise a number of complaints about the lawyers for Comcare. They are expressed in general terms. There is no particular claim of conduct that affected the outcome before the Tribunal in a manner that would amount to an error of law, whether by reason of procedural unfairness or otherwise. The submissions advanced do not demonstrate any error of law.

Other matters

27    In oral submissions, Ms Hutchinson complained that the original decisions should never have been made because there was no medical evidence. The submissions came close to a complaint about the validity of the original decisions. However, the present proceedings are an appeal against the decision of the Tribunal. It was Ms Hutchinson who brought the application for review in the Tribunal. Therefore, her application was founded upon the existence of a decision that might be the subject of an application for review. The validity of the application for review does not depend upon the validity of the original decision. Rather, it depends upon the fact of the decision: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [39]-[41] (Gageler, Keane and Nettle JJ). Error of law by the Tribunal is not demonstrated by seeking to challenge the validity of the original decision.

28    Ms Hutchinson did allege that the Tribunal acted partially or in a manner that was not free from bias. She began her oral submissions in those terms. However, there were no particulars provided as to how this was said to be manifest, other than by the result or the approach to the medical evidence. It is not uncommon for complaints to be expressed in the language of bias by litigants acting on their own behalf. However, questions of possible bias only arise where it could properly be claimed, on a reasonable and specified basis, that a fair-minded and appropriately informed lay observer might reasonably apprehend that the decision-maker might not bring a fair, impartial and independent mind to the determination of the matter on its merits. No matter was identified by Ms Hutchinson that might form a proper basis for such a claim. On the contrary, the reasons given by the Tribunal manifest the application of a fair, impartial and independent mind to the issues in the case. I take the language used by Ms Hutchinson to be no more than an attempt at emphatic expression to support her other complaints.

29    Finally, it is necessary to say something about other matters referred to by Ms Hutchinson in her written submissions. At a number of points the written submissions prepared by Ms Hutchinson in support of her appeal make general allegations of impropriety and manifest her frustration about the refusal of her ongoing claims to compensation. In some instances, they reduce to personal attack. Insult adds no weight to the merit of a submission. It is no substitute for a proper basis for a claim or, in the present context, the need to demonstrate an error of law by the Tribunal. As the subject matter of these allegations have no relevance to the issues for resolution in the present appeal, I have not addressed them separately in these reasons. They have no relevance because they are either complaints about other proceedings or they otherwise fail to identify an error of law affecting the way the Tribunal dealt with the applications by Ms Hutchinson for review.

Conclusion and costs

30    It follows that the appeal must be dismissed. The parties were invited to make submissions concerning appropriate costs orders. Ms Hutchinson accepted that costs would usually follow the event. For the Minister, it was submitted that there should be provision for lump sum assessment of costs orders on a simplified basis. A proposed consent order reflecting that positon has since been provided. I accept that it is appropriate for such orders to be made and I will make orders as to costs substantially in terms of the consent.

Associate:

Dated:    5 September 2019