Federal Court of Australia

Hutchinson v Comcare (No 2) [2021] FCA 284

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review of the respondent's decision of 11 June 2020 is dismissed.

2.    The applicant must pay the respondent's costs of and incidental to the application.

3.    On or before 9 April 2021 the parties must file any agreed proposed minute of orders fixing a lump sum in relation to the respondent's costs of the application.

4.    In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the respondent's costs is referred to a Registrar for determination.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review of respondent's decision of 9 November 2020 is dismissed.

2.    The applicant must pay the respondent's costs of and incidental to the application.

3.    On or before 9 April 2021 the parties must file any agreed proposed minute of orders fixing a lump sum in relation to the respondent's costs of the application.

4.    In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the respondent's costs is referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The applicant, Karen Hutchinson seeks judicial review of two decisions of the respondent, Comcare, made under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). She does so by way of two separate applications, which were heard at the same time and are both determined in these reasons.

2    The first decision was made when, on Ms Hutchinson's application, a delegate of Comcare reconsidered a determination dated 31 March 2020 declining liability to compensate Ms Hutchinson under s 14 of the ARC Act for agoraphobia. On 11 June 2020 the delegate decided (2020 Agoraphobia Decision) to affirm that earlier determination.

3    The second decision now under challenge was made by a different delegate of Comcare. That delegate reconsidered an earlier determination of 7 October 2020 which denied liability under s 14 of the SRC Act for aggravation of obesity leading to diabetes and atrial fibrillation. On 9 November 2020 that delegate too decided (2020 Aggravation Decision) to affirm the earlier determination. She did so on the basis of the recommendation of a case manager at Allianz Australia, who provide claims management services to Comcare. The delegate simply adopted the case manager's reasons as her own and neither party claimed any relevant distinction between the case manager's recommendation and the delegate's decision, so it is convenient from now on to refer to the reasons in the recommendation as the reasons of Comcare.

4    In her originating application in relation to the 2020 Agoraphobia Decision (in proceeding WAD 161 of 2020), Ms Hutchinson alleges that the delegate 'was not impartial or free of actual or apparent bias', and 'made findings that were not based on evidence that was genuine, relevant or logically capable of supporting those findings'. She alleged that the decision should be set aside on particular grounds of review found in s 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), which she later corrected in submissions so as to rely instead on s 5. The grounds are that there was a breach of the rules of natural justice (s 5(1)(a)), the procedures that are required by law to be observed were not observed (s 5(1)(b)), that the decision involved an error of law (s 5(1)(f)), and that there was no evidence or other material to justify the making of the proposed decision (s 5(1)(h)).

5    Ms Hutchinson's allegations in respect of the 2020 Agoraphobia Decision are all based on what is said to have been 'cherry-picking' by the delegate, in relying only on medical evidence that was adverse to her interests and ignoring what she says was a preponderance of medical evidence establishing that her employment was the sole cause of her agoraphobia. It is said that the delegate relied on medical reports which had 'been emphatically and convincingly shown to be "false and misleading" in material particular[s]'. Essentially, Ms Hutchinson claims that the delegate set out to make a determination adverse to her and that he achieved that by deliberately disregarding evidence favourable to her and only having regard to unfavourable evidence.

6    The grounds on which Ms Hutchinson challenges the 2020 Aggravation Decision (in proceeding WAD 292 of 2020) are similar. She alleges that the delegate 'made findings that were not based on evidence that was genuine, relevant, logically or honestly capable of supporting those findings' and was 'not impartial or free of actual or apparent bias'. Here, the bias is said to be evidenced by reliance on decisions made in 2015 and 2016 which are said to have contained false and misleading statements made in order to justify denying Ms Hutchinson's previous claims. She relies on the same grounds in s 5(1) of the ADJR Act as she does in relation to the 2020 Agoraphobia Decision. Ms Hutchinson also complains that Comcare breached the rules of natural justice by affirming an earlier determination knowing that it was not based on the claim she had actually made.

7    In relation to each of the 2020 Agoraphobia Decision and the 2020 Aggravation Decision, Ms Hutchinson initially also sought review of conduct said to be connected to the decision. In the case of the first, the conduct was said to be the making of a 'bad faith offer' to participate in alternative dispute resolution (ADR). In the case of the second decision, it was said to be the omission to invite Ms Hutchinson to participate in ADR. Comcare resisted this on the basis that neither act or omission was a decision reviewable under the ADJR Act. In oral submissions, Ms Hutchinson clarified, or modified, her application to 'review Comcare's conduct' as being merely a request for the court to make observations critical of the conduct in its reasons for decision. She stated that she was not seeking to invoke the ADJR Act in respect of these decisions.

8    Ms Hutchinson also, in relation to each decision, seeks a declaration that Comcare has breached the model litigant obligations found in Appendix B to the Legal Services Directions 2017 (Cth). However s 55ZG of the Judiciary Act 1903 (Cth) effectively precludes that claim. The Legal Services Directions are made under s 55ZF and under s 55ZG(1)(a), Comcare must comply with them. But s 55ZG(2) provides that compliance with a Legal Services Direction is not enforceable except by, or upon the application of, the Attorney-General, and s 55ZG(3) provides that the issue of non-compliance with a Legal Services Direction may not be raised in any proceeding except by, or on behalf of, the Commonwealth. The section does not expressly provide for the consequences if a person other than the Commonwealth nevertheless does raise the issue in a proceeding. But even if it is assumed that Comcare has breached the Legal Services Directions here (on which I make no finding), s 55ZG(3) is, at least, an unanswerable discretionary reason to refuse to make the declarations sought. I dismiss that aspect of Ms Hutchinson's applications at the outset.

9    For the following reasons, the balance of both applications for judicial review must also be dismissed. I will describe the statutory framework before dealing with each application in turn.

The statutory framework

10    Section 14(1) of the SRC Act provides that, subject to Part II (in which it is found), Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment. It is common ground that Ms Hutchinson is an employee who was employed by the Commonwealth for the purposes of these provisions.

11    An 'injury' is relevantly defined to include a 'disease', which in turn is relevantly defined to mean an 'ailment suffered by an employee', or 'an aggravation of such an ailment', that was 'contributed to, to a significant degree, by the employee's employment by the Commonwealth': s 5A(1)(a), s 5B(1). As to the causal connection thus required, s 5B(2) and s 5B(3) provide:

(2)    In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:

(a)    the duration of the employment;

(b)    the nature of, and particular tasks involved in, the employment;

(c)    any predisposition of the employee to the ailment or aggravation;

(d)    any activities of the employee not related to the employment;

(e)    any other matters affecting the employee's health.

This subsection does not limit the matters that may be taken into account.

  (3)    In this Act:

'significant degree' means a degree that is substantially more than material.

12    Part VI of the SRC Act provides for three stages of decision-making under the Act: Comcare v Burton (1998) 157 ALR 522 at 526-527. The first stage occurs under s 61(1A), pursuant to which the 'determining authority' - in this case, Comcare - must consider and decide each claim for compensation within a period prescribed by the regulations. Section 61(1) requires the determining authority to serve notice of the terms of and reasons for the determination on the claimant, as well as a statement that the claimant may, if dissatisfied with the determination, request a reconsideration of it under s 62(2). Section 62(1) also makes provision for a determining authority to reconsider a previous determination of its own motion.

13    On receipt of a request for reconsideration the next stage is engaged, namely that the determining authority must reconsider the determination or cause it to be reconsidered by a person with delegated power to do so, other than a person who made or was involved in the making of the original determination: s 62(4). The person reconsidering the determination may affirm, revoke or vary it as the person thinks fit: s 62(5). As soon as practicable after making a reconsideration decision, the person must cause to be served on the claimant a notice in writing setting out matters which include the terms of the decision and the reasons for the decision: s 63.

14    Section 64 of the SRC Act provides for the third stage, namely review by the Administrative Appeals Tribunal. But Ms Hutchinson has chosen not to pursue that in the case of the 2020 Agoraphobia Decision (see Hutchinson v Comcare [2020] FCA 1508 (Hutchinson (No 1)) or the 2020 Aggravation Decision.

15    It is also relevant that under the SRC Act, Comcare's functions include 'to make determinations accurately and quickly in relation to claims and requests made to Comcare under this Act': s 69(a).

Background to the 2020 Agoraphobia Decision

16    As I said in Hutchinson (No 1) at [2], a large number of disputes between Ms Hutchinson and Comcare have been agitated in this court and in other jurisdictions. But the facts necessary for an understanding of the application in relation to the 2020 Agoraphobia Decision (WAD 161 of 2020) can be confined to the following.

17    Ms Hutchinson was employed as a claims service officer for Comcare from 1999 until 2014.

18    On 5 March 2010 Ms Hutchinson attended a training workshop, where she interpreted something said to her during a training exercise to be a death threat. In February 2011 she made a claim for compensation under the SRC Act for depression and anxiety said to have been caused by the incident at the workshop.

19    In July 2011, Comcare accepted liability for a depressive disorder arising from the incident. In September 2013, Comcare accepted an extension of its liability to include post-traumatic stress disorder (PTSD) and major depression. On 17 January 2014, Ms Hutchinson was retired on invalidity grounds.

20    In January 2016, Ms Hutchinson asked Comcare whether it had the necessary medical evidence to be satisfied that she suffered agoraphobia as a secondary condition to the depressive disorder. Comcare treated this as a claim for compensation for the agoraphobia (and another disorder which is not presently relevant). On 9 February 2016, a delegate of Comcare refused the claim (2016 Agoraphobia Decision). That was a precursor to the 2020 Agoraphobia Decision. Ms Hutchinson applied to this court for judicial review of the 2016 Agoraphobia Decision, but she was out of time and so needed an extension.

21    On 20 July 2017, Comcare determined that from that time, Ms Hutchinson would no longer receive any compensation from Comcare.

22    On 13 April 2018, this court dismissed Ms Hutchinson's application for an extension of time to seek judicial review of the 2016 Agoraphobia Decision.

23    On 6 June 2018, Ms Hutchinson asked Comcare to reconsider the 2016 Agoraphobia Decision. While, as set out below, the SRC Act provides for the reconsideration of certain decisions made under it, Ms Hutchinson was out of time to request this reconsideration. Comcare refused to extend the time and on 14 December 2018 the Tribunal affirmed that refusal.

24    On 18 February 2020, Ms Hutchinson submitted another claim to Comcare for compensation for agoraphobia. In a decision dated 31 March 2020, a delegate of Comcare refused that claim because he considered that it alleged the 'same symptoms, disability and timeframe' as the claim that had been refused in February 2016.

25    The 2020 Agoraphobia Decision (which was made on 11 June 2020) is the outcome of a request by Ms Hutchinson for Comcare to reconsider the decision described in the preceding paragraph. It was made by a delegate different to the one who made the 31 March 2020 determination.

The terms of and reasons given for the 2020 Agoraphobia Decision

26    The 2020 Agoraphobia Decision was notified to Ms Hutchinson in a letter from the delegate dated 11 June 2020. The letter said at the outset that Comcare had decided to affirm the earlier determination of 31 March 2020 because Ms Hutchinson's former employment at Comcare did not significantly contribute to the agoraphobia condition.

27    The letter noted that in the previous determination of 31 March 2020, being the one which was under reconsideration, Comcare had declined liability on the basis that Ms Hutchinson's claim alleged the same symptoms, disability and timeframe as the claim that had previously been rejected in February 2016. But the letter then indicated that the delegate accepted that the claim could not be denied because it had previously been considered and rejected by the determining authority, and that Comcare was required to consider 'present liability'.

28    The letter then said:

We note however that you provided no new information for Comcare to consider which was not before Comcare in 2016, or the Administrative Appeals Tribunal (Tribunal) when it considered the merits of your claim in 2018. You rely on the same symptoms, disability and timeframe as the first agoraphobia claim that Comcare declined in 2016. Comcare has therefore reconsidered your current claim on the basis of information already on your claim file and reached the same conclusion as previously.

In considering your 2016 claim, Comcare found that you did not suffer from an ailment, that was contributed to, to a significant degree by your Comcare employment. The Tribunal shared this view when it briefly considered the merits of your claim in 2018. The key factors in reconsidering the 31 March 2020 determination are set out below.

29    The letter then set out in some detail the procedural history which is outlined above. It noted an opinion dated 28 January 2016 that Comcare had obtained from a psychiatrist, Dr Kevin O'Daly, for the purposes of assessing Ms Hutchinson's agoraphobia claim, which was to the effect that she did not meet the diagnostic criteria for agoraphobia. It noted a report by another psychiatrist, Dr Jonathan Spear, dated 21 February 2018, in which a diagnosis of agoraphobia was made. But in Dr Spear's view, Ms Hutchinson's employment with Comcare 'most likely makes a material contribution to her diagnosis of agoraphobia but not a significant contribution'. The delegate's letter quoted from a further report of Dr Spear dated 17 August 2018 in which he said:

She appears to have a paranoid personality style but most likely she does not meet the DSM criteria for personality disorder. If atrial flutter was excluded as a contributor to Ms Hutchinson's agoraphobia condition, I would consider that her degree of employment contribution remained material, but not significant. This is because there are many at least material causes of her mental health condition including personal stressors and her vulnerability to develop mental health disorder was evident with cognitive distortions.

30    The delegate's conclusion in the letter giving reasons for the 2020 Agoraphobia Decision was:

Taking into account the information on your claim file including the matters outlined above, Comcare accepts that you suffer from agoraphobia but considers that your employment with Comcare does not significantly contribute to that condition. Consequently, Comcare affirms the decision to deny liability for your claim.

Ms Hutchinson's case in relation to the 2020 Agoraphobia Decision

31    I have described above the grounds set out in the application for judicial review of the 2020 Agoraphobia Decision. From Ms Hutchinson's written and oral submissions, it was clear that the first three grounds (natural justice, non-observance of procedures required by law and error of law) all resolved to an allegation that the delegate who made the 2020 Agoraphobia Decision did not approach it impartially with a mind that was free of pre-judgment or bias. This was said to be apparent from two things: the alleged 'cherry-picking' of evidence, and reliance on the 2016 Agoraphobia Decision.

32    As for the fourth ground, alleging that there was no evidence or other material to justify the making of the proposed decision, at the hearing I drew Ms Hutchinson's attention to s 5(3)(a) of the ADJR Act, which provides that this ground shall not be taken to be made out unless there was no evidence or other material from which the decision-maker could reasonably be satisfied that the matter was established. After considering that, Ms Hutchinson abandoned this ground so that it is not necessary to consider it further.

33    Ms Hutchinson's submissions make complaint about the 2016 Agoraphobia Decision, and the first decision denying liability after her new application in 2020. But neither of those decisions is under review in this proceeding, so it is not necessary to describe those complaints.

34    In relation to the 2020 Agoraphobia Decision itself, Ms Hutchinson submitted that the delegate's reasons contained '"false and misleading" information that he created for the specific purpose of denying my claim'. In addition, she submitted that the relevant medical evidence on the claim file was not fairly evaluated. The basis of these submissions is that there was a range of material which the delegate did not refer to in his reasons for the 2020 Agoraphobia Decision. Ms Hutchinson submits that in omitting that material, and relying on the reports of Dr O'Daly and Dr Spear that were mentioned, the delegate engaged in deliberate 'cherry-picking' of evidence for the purpose of arriving at a decision adverse to her.

35    In order to consider that submission it is necessary to assess the material said to have been omitted. Before doing so I make two preliminary observations. First, the onus of proving Ms Hutchinson's allegations was on her, and she needed to do so to the standard of the balance of probabilities taking into account, among other things, the gravity of the matters alleged: Evidence Act 1995 (Cth) s 140; Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 at 671-672 (Gaudron J, in dissent on the result but not on the matter of principle); Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [67] (Gummow J). The allegation she makes here, that a member of the executive deliberately created false and misleading information for the specific purpose of denying her claim, is a grave one: see Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127 (Burchett J).

36    Second, Ms Hutchinson did not advance a case that the delegate erred by failing to take into account a relevant consideration, in the form of relevant evidence. Her case was squarely based on alleged bias. While she is self-represented and not a legal practitioner, I have had regard to her history of working in this very field for Comcare, her articulate presentations and ready grasp of the issues at the hearings in this matter, the fact that she had obviously reviewed the available grounds in s 5 of the ADJR Act, and her firmly expressed view in both the hearing of this application and the interlocutory hearing for Hutchinson (No 1) that her complaint was about natural justice. These things persuade me that it is appropriate to hold her to the forensic choice not to rely on failure to take a relevant consideration into account. Saying that does not imply that the ground would have been successful if it had been pursued.

The material said to have been omitted from consideration in the 2020 Agoraphobia Decision

37    Ms Hutchinson affirmed an affidavit on 22 December 2020 to which she annexed various materials which, she says, the delegate should have taken into account. None of these items were in the court book. They are as follows:

(1)    A report of Dr Spear dated 15 September 2011. This diagnoses Ms Hutchinson with 'major depressive disorder'. It makes no reference to agoraphobia. It records Ms Hutchinson as saying that she could walk by herself to her general practitioner's surgery and that she could shop with her sister and niece, and that she believed she could shop unaccompanied. Dr Spear's view at that stage was that she could commence a graduated return to work program so as to resume full normal duties within six months.

(2)    A report of Dr Brendon Dellar, clinical psychologist, dated 28 May 2013. Dr Dellar appears to have been Ms Hutchinson's treating psychologist and this report seems to have been prepared at her request. It says that she presented with very high anxiety and agoraphobic avoidance. But Dr Dellar's diagnosis was of PTSD and major depressive disorder. He did not present a diagnosis of agoraphobia as a specific condition. His report recorded Ms Hutchinson as saying she does not often leave the home and 'when she does venture out she experiences a heightened sense of anxious-arousal and hyper-vigilance'.

(3)    A report to Comcare by Dr Lawrence Blumberg dated 25 June 2013. The purpose of the report was to assess Ms Hutchinson's capacity to undertake a rehabilitation program. It recounts her as having described the onset of symptoms after the alleged incident at the workshop in 2010. The symptoms Ms Hutchinson described included agoraphobia. Dr Blumberg said she continued to experience agoraphobic avoidance, which was chronic and remained a problem. He noted that Ms Hutchinson avoids socialising, avoids going out and spends the majority of time at home, but does occasionally go out with her sister and shops at the local shopping centre during quiet periods to avoid becoming overwhelmed and anxious. Dr Blumberg's diagnosis was major depressive disorder and chronic PTSD, with no specific diagnosis of agoraphobia. He said that Ms Hutchinson interpreted the incident at the workshop in 2010 'as a "real threat" which in my opinion accounted for her observed cognitive fixation, ruminations and anxious avoidance agoraphobic behaviour'.

(4)    A report to Comcare from an occupational physician, Dr Christiaan Barnard, dated 4 September 2013. The purpose of the report was to assess Ms Hutchinson's occupational fitness and to comment on possible causes for her condition. It relied on and summarised previous reports including that of Dr Blumberg. It recounted Ms Hutchinson's reporting of 'anxiety being outside and in groups of people (agoraphobia)'. Dr Barnard agreed with Dr Blumberg's assessment of major depressive disorder which was recurrent and strongly associated with a co-morbid chronic PTSD. He said that her anxiety and agoraphobia stemmed from the PTSD but did not formally diagnose agoraphobia as a separate condition. He accepted that the agoraphobia was a major cause of her inability to return to the workplace. Dr Barnard's conclusion was that Ms Hutchinson met the criteria for invalidity retirement under the Superannuation Act 1976 (Cth) and was totally and permanently incapacitated for work.

(5)    A Comcare form, the relevant part of which Dr Barnard had filled out as follows (the doctor's writing on the form being shown here in bold):

After clinical examination, medical tests and specialist tests as appropriate, I consider that the member is suffering from the following medical condition(s). Please indicate on a scale of 1 to 10 the degree of incapacity for each condition (where 10 = total incapacity).

CONDITION                        SCALE

1.    POST TRAUMATIC STRESS DISORDER     10

2.    MAJOR DEPRESSIVE DISORDER        08

3.    AGORAPHOBIA                10

4.    SOCIAL PHOBIA                10

There is also handwriting on the side of this which appears to indicate that conditions 3 and 4 are 'Secondary to PTSD'. Ms Hutchinson's written submissions say that this best articulates the relevant medical evidence on the file.

(6)    Another report of Dr Dellar, addressed to Comcare, dated 28 June 2017. The purpose of this report is not apparent on its face. Dr Dellar described gradually worsening agoraphobic symptoms as among Ms Hutchinson's current symptoms. His diagnosis at the time of this report was:

The current diagnosis is Posttraumatic [sic] Stress Disorder (chronic) and Major Depression. Agoraphobia is conceptualised as a part of the avoidance cluster of symptoms in PTSD. Ms Hutchinson reports symptoms consistent with the DSM-5 criteria for both these disorders.

I read 'both these disorders' to be referring to the PTSD and major depression mentioned in the first sentence of the paragraph. Dr Dellar described agoraphobic avoidance as a symptom cluster that had worsened and said that he did not believe that Ms Hutchinson had fully recovered from either major depressive disorder or PTSD.

(7)    A further report from Dr Dellar dated 12 May 2018. The addressee and purpose of the report do not appear on its face, although from the questions stated and answered in it, it seems to relate to an issue concerning Ms Hutchinson's interactions with a former treating general practitioner, and I infer that the questions were posed by Ms Hutchinson herself. Dr Dellar said that Ms Hutchinson 'continued to have significant impairment with regards to agoraphobic avoidance and this was exacerbated with the advent of online grocery shopping'. This is said in the context of the possible effects of an apparently distressing consultation Ms Hutchinson is said to have had with the general practitioner. Dr Dellar also refers to increased agoraphobic avoidance and depression symptoms in the context of a question about the psychological effect of Comcare's decision on 20 July 2017 to cease present liability on her claim. One of the questions asked for comment on Dr O'Daly's reports of 22 December 2015 and 28 January 2016 (to which the delegate referred in his reasons for the 2020 Agoraphobia decision). Dr Dellar's observations on Dr O'Daly's opinions included the following:

Dr O'Daly mentioned avoidant, depressive and anxious personality traits which I believe have been misinterpreted as Personality Disorder. These traits, if present, are a compensatory means of coping but are not considered a disorder in this case. I would most likely categorise this as Agoraphobia.

With reference to the supplementary report, the assertion that Ms Hutchinson does not suffer from Agoraphobia is at odds with all existing evidence. She indeed does experience a high level of agoraphobia and this has been one of the main features of Ms Hutchinson's presentation.

38    Ms Hutchinson also refers in her affidavit to a report of Dr Spear dated 3 April 2012, which was in the court book, in which he diagnosed her as having 'Major Depressive Disorder in Partial Remission' and 'Agoraphobia with Panic Disorder'. That is the only formal report in evidence before the court which presents agoraphobia as a diagnosed condition as distinct from a way to describe certain symptoms of other conditions.

39    Several points should be made about what can be taken from this material and the delegate's omission to refer to it in his reasons for the 2020 Agoraphobia Decision.

40    First, these materials are a selection from what is evidently a large number of psychiatric and other reports that had been prepared in relation to Ms Hutchinson over the past 10 years. In light of the overall volume of reports, I do not consider that it can be inferred that the delegate making this reconsideration decision, on a specific issue as to agoraphobia, had all the above material before him, let alone that he read and considered it all, along with all the other relevant reports. I do not consider that the bland reference in his reasons to having taken into account 'the information on your claim file' requires the inference which Ms Hutchinson effectively asks the court to make: that the delegate was aware of the omitted material and its significance and deliberately chose not to refer to it. It may be that most of this material was absent from the court book because it was not before the delegate, but there is no evidence of how the court book was compiled which would permit a finding to that effect. By the same token, there is no basis in the evidence to infer, as Ms Hutchinson urged me to do, that Comcare deliberately omitted these materials from the court book.

41    Second, attention needs to be paid to the statutory framework in which the delegate was operating. Two features of that framework I have described above are particularly relevant. One is that the relevant obligations in s 63 are to set out 'the terms of the decision' and 'the reasons for the decision'. There is no more prescriptive requirement such as that found in s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) to include in written reasons 'findings on material questions of fact and a reference to the evidence or other material on which those findings were based'. So all the delegate was required to do was to give the reasons why he affirmed the decision to deny liability for the agoraphobia claim. He was not required to canvass every issue or refer to every piece of evidence. Even under the more prescriptive regime, the Tribunal is not required to do the latter: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]. So it is open to infer that the delegate here only mentioned the medical evidence he did because that evidence was the reason why he made his decision. The other relevant feature of the statutory framework is that Comcare is required to make determinations accurately and quickly: s 69(a). This tends to negative any suggestion that each time it has to make a decision, Comcare must review its entire file, at least not when that file is voluminous as it obviously is here.

42    Third, Ms Hutchinson did not refer to any of the omitted material in her request for reconsideration which led to the 2020 Agoraphobia Decision. She did provide excerpts from four of the reports in a statement she submitted before the decision of 31 March 2020 which was reconsidered in the 2020 Agoraphobia Decision. But it does not follow that those materials were put before the delegate conducting the reconsideration in so prominent a way as to lead to an inference that he deliberately ignored them by not referring to them. As will be seen, there are other, more likely explanations for the delegate's omission to refer to them.

43    Fourth, the reports on which Ms Hutchinson relies were prepared for various different purposes, none of which was commissioned for the purposes of assessing the claims for compensation which were the subject of the 2016 or 2020 Agoraphobia Decisions. In contrast, the reports on which the delegate relied were, in part, provided in answer to specific questions about agoraphobia and the extent to which Ms Hutchinson's employment contributed to it. They were commissioned for the purposes of the 2016 Agoraphobia Decision in which liability for agoraphobia was denied, or by Comcare's lawyers when Ms Hutchinson was seeking judicial review of that decision and merits review in the Tribunal of Comcare's refusal of an extension of time to reconsider it. That provides a ready explanation as to why Dr O'Daly and Dr Spear's reports were mentioned, and the others were not.

44    Fifth, and following from the previous point, the specific references to agoraphobia I have described or quoted above were made in the course of wider and invariably much longer discussion in the 'omitted' reports of a large number of issues. While it has been necessary to collect the references to agoraphobia or agoraphobic symptoms here, that overemphasises their prominence in the reports. Only Dr Spear's report of 3 April 2012 (evidently superseded by his 2018 reports) and Dr Barnard's notation on the retirement invalidity form state agoraphobia as the diagnosis of a condition.

45    Sixth, in any event, the delegate accepted that Ms Hutchinson suffered from agoraphobia. To that extent, he disagreed with Dr O'Daly. So on any view there was no need for him to refer to material supporting that diagnosis. The delegate's ultimate decision was based on Dr Spear's more recent view that the contribution Ms Hutchinson's employment made to her agoraphobia, while material, was not significant. There are passages in the omitted material from which it can be inferred that the authors of the material did think that the agoraphobia was caused by the PTSD which was in turn caused by the employment related incident in 2010. But none of them were asked to comment on the specific criterion in s 5A and s 5B of the SRC Act that the ailment had been contributed to, to a significant degree, by her employment with Comcare. And no such comment was made. The conclusion that the delegate reached is therefore not contradicted by any of the omitted material.

Conclusion on the allegation of bias affecting the 2020 Agoraphobia Decision

46    There are statements in the authorities which state categorically that a preference for one witness's evidence over another, or a failure to refer to evidence, cannot demonstrate bias: see Bar-Mordecai v Health Car Complaints Commission [2002] NSWCA 192 at [36] (Beazley JA, Meagher JA and Pearlman AJA agreeing); New South Wales v Coya (Constructions) Pty Ltd (Unreported, Supreme Court of New South Wales, 4 July 1994) at 113 (Rolfe J). After all, those things are part of the normal fact finding function of a court or tribunal.

47    Nevertheless, it is possible to conceive of a case in which the preponderance of material in front of a decision-maker is so overwhelmingly in favour of a certain outcome that, when the decision-maker does not refer to the material, that bespeaks prejudgment and bias. In Sun at 126 Burchett J said '[a]ctual bias, like any other conclusion of fact, may be established as an inference from the circumstances' (see also North J at 134-135). Thus, as von Doussa J said in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] (quoted with approval in Reece v Webber [2011] FCAFC 33; (2011) 192 FCR 254 at [47]) (citations removed):

In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party's interests such as a hostile attitude throughout the hearing, or a failure to enquire into and to obtain readily available and important information relating to central matters for determination an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.

48    In light of the matters set out above, this is not a rare and exceptional case of that kind. That the delegate only referred to Dr O'Daly's 2016 report and Dr Spear's 2018 reports is readily explicable by the fact that they were the only reports that were directly relevant to the issue before him. While the omitted material provided support for the existence of the agoraphobia and a causal link between it and the incident in 2010, in making the 2020 Agoraphobia Decision the delegate accepted both of those matters. What he did not accept was that the causal relationship rose to the standard of 'significant contribution' required by the SRC Act. This is not demonstrably wrong. None of the omitted material commented on that standard.

49    The reasons for the 2020 Agoraphobia Decision do not provide support for an inference of bias, whether considered alone or in the context of the omitted material. And there was no evidence of bias independent of the reasons for decision and the materials on which it was (and was not) based. Also there was no evidence to support a submission Ms Hutchinson made that the delegate did not give 'truthful and honest reasoning', that is, his real reasons for making his decision. Ms Hutchinson has not established actual bias on the part of the delegate.

Apprehended bias and the 2020 Agoraphobia Decision

50    While Ms Hutchinson's case was squarely based on actual bias, her grounds of review also referred to 'apparent bias'. That may raise a case of apprehended bias as well.

51    In the curial context, the rule as to apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]. In Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [5], Gleeson CJ, Gaudron and Gummow JJ observed that:

… the rule as to apprehended bias, when applied outside the judicial system, must take account of the different nature of the body or tribunal whose decision is in issue and the different character of its proceedings. Moreover - and on this the parties are in substantial agreement - regard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject matter with which the decision is concerned.

52    At [28] their Honours said:

Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.

53    The test to be applied here, then, is whether a hypothetical fair-minded lay person who is properly informed as to the nature of the matter before the delegate, the matters in issue and the conduct which is said to give rise to an apprehension of bias, might reasonably apprehend that the delegate might not bring an impartial mind to the resolution of the question to be decided. This question is largely a factual one, which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made: Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [20].

54    Applying that test to the situation here, however, presents conceptual difficulty. It is a test which is stated in forward looking terms; it is about whether bias is apprehended, not about whether it has actually occurred. Yet Ms Hutchinson's case relies on the reasons for the 2020 Agoraphobia Decision in the context of the material on her file, not on anything said or done by the delegate before making the decision. While the court may not be precluded from considering the decision itself as part of the matrix of facts relevant to whether an apprehension of bias could reasonably be formed, care must be taken not to invert the proper order of inquiry by first assuming the existence of a reasonable apprehension: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [67]; MZAEU v Minister for Immigration and Border Protection [2016] FCAFC 100; (2016) 70 AAR 22 at [44]-[45].

55    The conceptual difficulty becomes even more apparent when one considers the two steps necessary to apply the test identified in Ebner at [8]:

First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.

56    In McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 at [113], Basten JA said:

Although the comment in Ebner was made in a case involving a possibly disqualifying interest, it has significance in a case of pre-judgment and, more particularly, in a case which does not involve judicial judgment. As already noted, one important aspect of the test of reasonable apprehension of bias is that it removes the inquiry from the actual process of decision-making. That this is a purpose of framing the test in terms of real possibilities was acknowledged by Deane J in Webb [v The Queen (1994) 181 CLR 41] (at 71).

57    This exposes the reality that, despite her passing reference to apparent bias, Ms Hutchinson's case is more aptly understood as one of actual bias. Her focus is entirely on the actual process of the delegate's reasoning. For example, she did not rely on any interest the delegate had in the outcome of the decision; the fact that he was an employee of Comcare, the body liable to pay any compensation, cannot be relevant as that is a feature of the decision-making process mandated by the SRC Act: s 60(3). She did not rely on anything he said or did leading up to the decision. She relied on the adverse nature of the decision itself, that is, the actual process of decision-making.

58    Nor did Ms Hutchinson point to any evidence that the delegate had pre-judged the outcome. While it may be logically possible to derive from reasons for a decision that has been made an inference that the decision-maker pre-judged before the decision itself, that logical step must be taken with care. When a decision-maker gives reasons for a decision after it has been made, the fact that he or she only describes matters that support the decision does not necessarily indicate bias. The reasons for decision will rarely be sufficient by themselves to establish an apprehension of bias, as adverse findings are an inevitable part of the expression of reasons: Hamor v Commonwealth of Australia [2020] FCA 1748 at [50] (Gleeson J). It will not usually be possible to identify a matter which might lead the decision-maker to decide a question other than on its legal and factual merits if all that one has to go on is the decision-maker's stated and determinative assessment of those legal and factual merits.

59    When the court assesses those matters here, all it has to go on are the reasons for decision, and the omitted material. The inferences it will make (or decide not to make) are likely to be precisely the same as those it makes in connection with the allegation of actual bias. To assess those very same matters against a criterion of reasonable apprehension of a possibility of bias may be to do what Deane J eschewed in Webb v The Queen (1994) 181 CLR 41 at 71, namely 'substituting, for the doctrine of disqualification by reason of an appearance of bias, a doctrine of disqualification for actual bias modified by the adoption of a new standard of proof (i.e. a real likelihood or possibility rather than probability in the sense of more likely than not)'.

60    Nevertheless, in Reece at [46] the Full Court observed that a reasonable apprehension of bias may arise by reason of the terminology employed in an administrative decision, and assessed the appeal before it on that basis. So I will proceed that way here. I will do so having regard to the need, pointed out in Reece at [45], for the allegation as to reasonable apprehension of bias to be firmly established (relying on Re JRL; Ex parte CJL (1986) 161 CLR 342). In CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 375 ALR 47 at [19] Kiefel CJ and Gageler J (in dissent on the result but not on the principles) observed that the purpose, in the test (footnotes removed):

of combining the 'fair-mindedness' of the hypothetical lay observer with the 'reasonableness' of that observer's apprehension is to stress that the appearance or non-appearance of independence and impartiality on the part of the [decision-maker] falls to be determined from the perspective of a member of the public who is 'neither complacent nor unduly sensitive or suspicious'. Together they emphasise that 'the confidence with which the [decision-maker] and its decisions ought to be regarded and received may be undermined, as much as may confidence in the courts of law, by a suspicion of bias reasonably - and not fancifully - entertained by responsible minds'.

61    Also, in Reece, the Full Court relied on von Doussa J's observations about actual bias in SCAA (see [47] above) in the course of rejecting a ground of appeal based on apparent bias.

62    Having regard to those principles, I do not consider that Ms Hutchinson has established that a properly informed and fair minded lay person might reasonably apprehend that the delegate might not bring (or might not have brought) an impartial mind to the resolution of the question of whether Comcare was liable to compensate Ms Hutchinson for agoraphobia. The matters I have described above provide a ready explanation for why the delegate referred only to the report of Dr O'Daly and the 2018 reports of Dr Spear, and nothing in the factual context or the expression of the delegate's reasons suggests that his mind was closed to her claim before he decided that claim on the merits. The fact that he had formed a view, and chose in the statutory and factual context not to canvass everything on the file that was potentially relevant to that view, would not lead a fair minded person to reasonably apprehend that he might have been biased.

Reliance on previous decisions in making the 2020 Agoraphobia Decision

63    Ms Hutchinson submitted that the delegate drew notice to the 2016 Agoraphobia Decision as a reason for denying her claim of present liability in the 2020 Agoraphobia Decision. She said that this too meant that his decision was not impartial or free of actual or apparent bias. The submission appears to be that the delegate simply relied on the earlier decision without applying his mind to the question of present liability so that his mind was closed and he decided that question on other than on its legal and factual merits.

64    I do not consider that this emerges fairly from the delegate's treatment of the 2016 Agoraphobia Decision. The delegate was aware that the task before him was to decide present liability; he expressly said so. He did not refer to the earlier decision in a manner which suggested that he took it to be correct and so did not need to make up his own mind. Rather, he referred to it as part of the relevant history, which it plainly was.

65    The delegate was correct to observe that Ms Hutchinson had provided no new material which was not before Comcare in 2016 or the Tribunal in 2018. But that did not lead him to take the 2016 Agoraphobia Decision as correct and go no further. Rather, the task he set himself was to reconsider the current claim on the basis of the information already on the file, that is, the primary materials, not the interpretation of them a different delegate reached in 2016. It is true that he said Comcare had 'reached the same conclusion as previously', but that is accurate, in so far as on both occasions liability was denied, and he was indicating that the conclusion was reached after reconsideration of the material, not before.

66    It would not necessarily have been an error if the delegate had put weight on the 2016 Agoraphobia Decision in reaching his own view: see the discussion below in connection with the 2020 Aggravation Decision. But I do not consider that he did put weight on it. On the contrary, in accepting that Ms Hutchinson did suffer from agoraphobia, which the 2016 Agoraphobia Decision did not accept, he departed from that decision. And the dispositive part of his reasoning was based entirely on the reports of Dr Spear which were only created after the 2016 Agoraphobia Decision.

ADR

67    As I have indicated Ms Hutchinson does not, it transpires, seek any order pertaining to what she says was Comcare's conduct in making a bad faith offer to participate in ADR. She merely submits that the court should express criticism of that conduct. But the function of this court is to quell disputes by making orders according to law. While it can be necessary or appropriate to criticise the conduct of a party in the course of expressing reasons for those orders, that is not a free standing function which any litigant can invoke for its own sake. There has been no need to mention Comcare's invitation to engage in ADR in the course of expressing reasons for the court's determination in relation to the 2020 Agoraphobia Decision, and I make no comment on that conduct.

Determination of application regarding the 2020 Agoraphobia Decision

68    None of the grounds in the originating application in WAD 161 of 2020 have been made out and a declaration about compliance with the Legal Services Directions cannot be made. The application will be dismissed, and costs must follow the event.

The 2020 Aggravation Decision

69    The relevant history leading up to the 2020 Aggravation Decision is as follows.

70    On 5 August 2015, Ms Hutchinson emailed Comcare claiming that her psychiatric symptoms consequent on her employment with Comcare meant that the only thing she could do in the safety of her own home was to watch television and cook. She submitted to Comcare a report from a cardiologist diagnosing her with a heart condition, atrial flutter, which said it was likely that obesity was responsible.

71    On 11 December 2015 a delegate of Comcare wrote to Ms Hutchinson rejecting what the delegate described as a claim for obesity, type 2 diabetes and atrial flutter under s 14 of the SRC Act (2015 Aggravation Decision). In her reasons, the delegate said she was satisfied that Ms Hutchinson suffered from ailments as defined in the SRC Act, namely obesity, type 2 diabetes and atrial flutter. But on the basis of evidence that Ms Hutchinson had been obese at the time of her initial employment with Comcare in 1999, the delegate was not satisfied that the requisite causal link between the obesity and her employment had been established, or that her employment had subsequently resulted in type 2 diabetes and atrial flutter

72    Ms Hutchinson requested reconsideration of this decision and a different delegate provided a decision on 25 February 2016 (2016 Aggravation Decision). The second delegate affirmed the first decision. In her reasons, she relied on Dr O'Daly's report of 28 January 2016, which the delegate said linked overeating to both Ms Hutchinson's personality style and her major depression. She also referred to a report of Dr Dellar (not one of those described above). She then said:

Dr Jonathan Spear (Consultant psychiatrist) wrote in September 2011 that you reported a number of stressors. In 2006 you were diagnosed with leukaemia and were off work for many months. You found the treatment debilitating. In 2007 you were diagnosed with haemochromatosis. You reported that after the onset of mental health problems was [sic] in 2008 you gained weight from 75kg to 107kg and associated this with comfort eating of chocolate, reduced exercise and reduced social contact.

73    The reasons for the 2016 Aggravation Decision went on to consider other medical reports and other evidence concerning Ms Hutchinson's weight gain, diabetes and atrial flutter.

74    In the 2016 Aggravation Decision the delegate accepted that Ms Hutchinson suffered from ailments as defined in the SRC Act, once again, obesity, type 2 diabetes and atrial flutter. She then went on to consider whether those conditions had been contributed to, to a significant degree, by Ms Hutchinson's employment, as required for liability for compensation to arise under the SRC Act. She summarised the evidence about Ms Hutchinson's weight at various times. She accepted that the obesity was most likely responsible for the diabetes and atrial flutter, so the issue was whether Comcare was liable for the obesity. After again summarising the evidence about fluctuations in weight, the reasons said:

Based on the medical evidence before me, I consider that your current obesity condition is related to a combination of factors outside your employment, rather than the effects of, or as a result of, your compensable injury. In his specialist opinion, Dr O'Daly opined that your binge eating is associated with your personality style and depressive disorder. Dr Spear reports that in 2007 your weight had increased from 75kg to 107kg as a result of stressors, including stress related to personal issues such as your leukaemia diagnosis, leukaemia treatment, haemochromatosis and challenges with a new director. I also note that there is no medical evidence on your claim file to confirm your weight details during the relevant period (from 1999 to March 2014).

75    The delegate said that the cause or aggravation of Ms Hutchinson's injury should not be a matter of conjecture. She found 'no clinical justification or contemporaneous medical evidence' to support the claim that Ms Hutchinson's obesity was significantly contributed to by her compensable injury.

76    There were numerous subsequent developments which do not need to be described until, on 9 October 2020, a delegate (on the recommendation of Allianz) rejected a claim concerning aggravation of obesity, diabetes and atrial flutter. There is some controversy as to the nature of the request that led to that decision, with Ms Hutchinson acknowledging in her subsequent reconsideration request of 12 October 2020 that she put the previous claim clumsily, and should have made it clear that she was claiming aggravation of pre-existing obesity, leading to onset of type 2 diabetes and atrial flutter. That is, she was not claiming aggravation of the diabetes or the atrial flutter, just aggravation of the obesity, leading to those other conditions. But she did claim that all of these were secondary conditions to the major depressive disorder. Ms Hutchinson alleges in her originating application that the delegate who made the 2020 Aggravation Decision knew that the earlier delegate had not determined the claim Ms Hutchinson actually made.

77    The 2020 Aggravation Decision is the result of Comcare's reconsideration of that earlier decision of 9 October 2020. Comcare affirmed the earlier decision. The reasons for the 2020 Aggravation Decision summarised the background, including the contents of Ms Hutchinson's statement requesting reconsideration of the determination. Comcare accepted that Ms Hutchinson suffered from morbid obesity, diabetes and atrial fibrillation. But it concurred with the finding of the previous delegate that Ms Hutchinson's employment did not significantly contribute to the onset or aggravation of her condition.

78    The reasons then went through the background and evidence in some detail. It is not necessary to describe it all, because Ms Hutchinson's case focussed on what she asserted was Comcare's reliance on the 2016 Aggravation Decision. In the part of the reasons considering the merits of the claim before it in 2020, Comcare said:

I agree with the finding of the delegate in the primary determination that there is no clear medical evidence demonstrating that you had since suffered an aggravation to the conditions previously claimed for in 2015. I therefore am also unconvinced by your argument that an 'aggravation' had developed.

However, it is clear by the information reviewed that your current claim relates to the same events as originally reported on 5 August 2015, and as part of your reconsideration request you have stated that you were 'making a present liability claim for the secondary conditions you claimed in 2015 to be re-determined'.

To this end, I note that the secondary conditions of 'Obesity, type 2 Diabetes and Atrial Flutter' were denied on 11 December 2015 and you have already exercised your reviews right in relation to the determination. This determination was affirmed on 25 February 2016 at the reviewable stage.

You have not provided any evidence to support your contentions that you have suffered an aggravation of your conditions or that the delegate failed to consider relevant information, and having reviewed the decision, I found no evidence of either.

Given the factors above, I am not satisfied that your employment made a significant contribution to your claimed conditions, and hence my findings accord with those of the primary delegate - being to deny your claim for compensation.

Recommendation

Having completed my investigation, I find that the determination dated 7 [sic: 9] October 2020 which denied your claim for aggravation of 'morbid obesity', diabetes' and 'atrial fibrillation' under section 14 of the SRC Act was correct and should be affirmed.

Ms Hutchinson's case in relation to the 2020 Aggravation Decision

79    I have described the grounds stated in the originating application already. Ms Hutchinson developed these in her written submissions by asserting that the 2015 Aggravation Decision was false and misleading, because unspecified '[r]elevant and genuine medical evidence that was available on my claim file was never fairly evaluated or considered in relation to this matter'.

80    A similar claim is made in relation to the 2016 Aggravation Decision but it is particularised by reference to the summary of Dr Spear's views which is quoted at [73] above. Ms Hutchinson submits that the delegate in the 2016 Aggravation Decision 'rewrote' aspects of Dr Spear's opinion contained in his report dated 15 September 2011 so that the weight gain could be dated from a time before 2008, which Ms Hutchinson says is outside of the 'liability frame'. She claims that the passage from the 2016 Aggravation Decision quoted above is 'fabricated'. She submits that the references in the 2020 Aggravation Decision to the 2015 Aggravation Decision and the 2016 Aggravation Decision confirm that in making the 2020 Aggravation Decision Comcare did not have an impartial mind.

81    At the hearing, Ms Hutchinson refined these submissions to the following propositions:

(1)    Comcare came to the 2020 Aggravation Decision with a closed mind because it simply relied on the 2016 Aggravation Decision.

(2)    Also and more specifically, the particular alleged flaw in the 2016 Aggravation Decision, namely the 'rewriting' of Dr Spear's views, vitiated the 2020 Aggravation Decision that was made in reliance on it.

82    These matters are said to be a denial of procedural fairness arising out of bias or prejudgment and engaging s 5(1)(a), s 5(1)(b) and s 5(1)(f) of the ADJR Act. As with the 2020 Agoraphobia Decision, Ms Hutchinson abandoned her reliance on s 5(1)(h) (no evidence).

Consideration of the Aggravation Claim

83    The first question is whether Comcare did take the 2016 Aggravation Decision into account in making the 2020 Aggravation Decision. The process of reasoning set out at [77] above is not entirely clear. The conclusion seems to be based, to a substantial degree, on the finding that there was no clear medical evidence of an aggravation of the conditions previously claimed in 2015, and the view that Ms Hutchinson had not provided any evidence to support her contentions that she had suffered an aggravation of her conditions. This seems to be based on the evidence reviewed, and does not depend on accepting (or refusing to reconsider) the 2016 Aggravation Decision.

84    However the reasons also say that it was clear that the current claim before the delegate related to the same events as were the basis of the claim in 2015 which was the subject of reconsideration in the 2016 Aggravation Decision and they note the outcome of that decision. They seem to rely on what is said to be an absence of evidence of any developments since then. On balance, I accept that Comcare gave some weight to the 2016 Aggravation Decision in reaching the 2020 Aggravation Decision.

85    The next question is whether Comcare erred in doing so, setting aside, for the moment, Ms Hutchinson's submissions about the false and misleading nature of the 2016 Aggravation Decision. Is it an error for a decision-maker under the SRC Act to rely on the fact of an earlier relevant decision? The answer to that is clearly no.

86    In Cheung v Administrative Appeals Tribunal [2009] FCA 241; (2009) 176 FCR 20, Bennett J considered the obligations of decision-makers under the SRC Act when there was an earlier decision under the Act. The situation before her Honour was that an employee of Australia Post had made a claim for compensation which Australia Post initially denied, but which the Tribunal had accepted on appeal in 2001. In 2008 both Australia Post and the Tribunal rejected subsequent claims by the employee. The employee sought judicial review under the ADJR Act, claiming that the second Tribunal erred in law by failing to consider whether to treat the 2001 decision as determinative.

87    While the case concerned decisions of the Tribunal, Bennett J proceeded on the basis that the Tribunal was standing in the shoes of the determining authority (in that case, Australian Post) when it made its decisions, so her Honour's observations are applicable to Comcare here as well: see [37], [44], [53]. At [49] her Honour said:

Generally speaking, there should not be relitigation without reason of the same issues before the Tribunal where the relitigation is of the same facts and issues already decided. In those circumstances, previous Tribunal decisions would generally be regarded as establishing the matters actually decided and the grounds for determination. It is open to a subsequent Tribunal to regard a previous decision as determinative of an issue and to decide that an issue should not be reopened. The Tribunal has a discretion in those circumstances to take such a course (Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 at 390).

88    At [54] Bennett J held that the determining authority and the Tribunal had a discretion whether to reopen issues determined by a previous decision if there has been no change in the medical condition of the applicant but only a new medical opinion.

89    The Full Court approved Bennett J's approach in Commonwealth of Australia v Snell [2019] FCAFC 57; (2019) 269 FCR 18 at [76], and in that paragraph also said:

An earlier decision by the decision-maker (including an earlier decision of the Tribunal which is deemed to be that of the decision-maker) is information or material with which the Tribunal may inform itself (s 33(1)(c) of the AAT Act) and it can give it the weight which it considers to be appropriate. Where no new evidence has been advanced which relevantly undermines or alters the effect of the earlier decision it is most likely that, if the application for review is not disposed of in a summary manner, the earlier decision will have significant if not overwhelming weight. Where, on the other hand, new information is available which suggests the earlier decision was based on incorrect facts or limited knowledge, be it scientific knowledge or otherwise, the weight which might be afforded to the earlier decision may be minimal or non-existent.

90    Here, in making the 2020 Aggravation Decision, Comcare made no error when it referred to the 2016 Aggravation Decision and gave it such weight as it decided, in its discretion, to give.

91    The final question is whether the allegedly false and misleading nature of the reasons for the 2016 Aggravation Decision means that the 2020 Aggravation Decision is vitiated by bias or prejudgement. The answer to that question is also no. In order to succeed on such a submission, Ms Hutchinson would need to establish, not just that the 2016 Aggravation Decision was wrong, but that it was known to be so by the delegate who made the 2020 Aggravation Decision for Comcare or, at a stretch, that the latter delegate was wilfully blind to its obvious falsity. In my view, only evidence of that strength could support an inference that relying on the 2016 Aggravation Decision was the result of bias.

92    The sole matter on which Ms Hutchinson relies to characterise the 2016 Aggravation Decision as false and misleading does not rise nearly to that level. It is the 2016 delegate's alleged rewriting of Dr Spear's views, which is quoted at [73] above. That passage is to be compared to Dr Spear's report of 15 September 2011. The relevant passage from that report is as follows:

At interview Ms Hutchinson reported a number of stressors. In 2006 she was diagnosed with leukaemia. She was off work for many months and required hospitalisation. She found the treatment debilitating. In 2007 she was diagnosed with haemochromatosis.

She described some stressors in that a new director was appointed in 2007 who she believed was critical of career public servants.

In 2008 she made an unsuccessful application for an APS level 5 position and she felt the panel were hostile towards her.

She reported the onset of her mental health problems was in 2008. She requested a pay rise as she was in an acting project officer role. This was initially declined by the director so she went over the director's head to the general manager. She was given a pay rise but subsequently had a poor relationship with her director. She perceived her director threatened her behind closed doors, warning her that there would be repercussions and that she would be humiliated in front of colleagues. She reported that this behaviour continued over a long period of time.

Subsequently she developed mental health symptoms including low mood. She was initially reluctant to admit that she was having difficulty (denial). She raised concerns about her director but felt that nothing was done to meet these concerns. She gained weight from 75kg to 107kg. She associated this with comfort eating of chocolate, reduced exercise and reduced social contact She also described poor sleep with difficulty getting to sleep and broken sleep. As she was going to sleep she ruminated about work. She only slept five hours a night. She felt anxious regarding perceived threats from her director. 'I was frightened of the director.' She also experienced muscular tension.

93    The passage quoted at [73] is a broadly accurate summary of this part of Dr Spear's report. It refers to the weight gain as the result of stressors and does not omit the employment related stressor of challenges with a new director. While Dr Spear does not draw an explicit causal link between the stressors mentioned in the first paragraph of the excerpt from this report and the weight gain described in the last paragraph, it is open to read the report as implicitly drawing that link. There is, arguably, an error in the chronology of Comcare's summary, as it says that the weight increase occurred in 2007 but Dr Spear's report appears to place it in or subsequent to 2008. Ms Hutchinson places significance on that timing. But in truth, the chronology in Dr Spear's report is unclear. And the 2016 Aggravation Decision in which the summary appeared is not the decision presently under review. Given the way Ms Hutchinson puts her case, she needs to establish that the arguable error in the 2016 Aggravation Decision is so glaringly obvious that for the 2020 Aggravation Decision to even refer to the 2016 Aggravation Decision is, on the balance of probabilities, the result of bias. It is difficult to think of how any arguable factual error in an earlier decision could give rise to an inference of that kind, especially where, as here, the later decision does not refer to the passage containing the error at all.

94    The passage from the 2016 Aggravation Decision with which Ms Hutchinson strongly disagrees does not have the significance she now wishes to place on it to vitiate the 2020 Aggravation Decision. The claim of bias in the making of the latter decision is not made out. That is the case whether it is considered from the point of view of actual bias or apprehended bias.

95    I make two other findings for completeness. First, while Ms Hutchinson did not agitate her similar claims about reliance on the 2015 Aggravation Decision at the hearing, the same conclusions would result. To the extent that the 2020 Aggravation Decision relied on the 2015 Aggravation Decision, that was not an error. Ms Hutchinson did not even identify any specific respect in which the 2015 Aggravation Decision was 'false and misleading'.

96    Second, Ms Hutchinson's originating application claims that the delegate who made the 2020 Aggravation Decision erred in affirming the earlier decision of 9 October 2020 rejecting a claim for aggravation of all three of the conditions, that is, morbid obesity, diabetes and atrial flutter, knowing that was not the claim that Ms Hutchinson had made. Once again, this was not agitated in submissions. In any event, the delegate who made the 2020 Aggravation Decision described the claim before her accurately as follows:

You are claiming an aggravation of pre-existing 'obesity' leading to onset of 'type II Diabetes' and 'atrial flutter' as secondary conditions arising from your accepted compensable condition of 'major depressive disorder' in 2015.

97    While stated in terms of affirmation, the 2020 Aggravation Decision was in substance a reconsideration of the earlier decision, including the evidence on which it was based. It did not endorse or perpetuate any error made by the previous delegate in understanding Ms Hutchinson's claim. This aspect of the originating application discloses no reviewable error in the 2020 Aggravation Decision.

98    Finally, I do not accede to Ms Hutchinson's request to 'review' Comcare's conduct in not making an offer to participate in ADR in relation to the 2020 Aggravation Decision. That is for the reasons as I gave above in relation to her similar request in connection with the 2020 Agoraphobia Decision.

Determination of application regarding the 2020 Aggravation Decision

99    None of the grounds on which Ms Hutchinson seeks review of the 2020 Aggravation Decision in WAD 292 of 2020 have been made out, and the order she seeks under the Legal Services Directions is not available to her. The application for judicial review of the 2020 Aggravation Decision will be dismissed. Costs should follow the event.

Associate:

Dated:    26 March 2021