Federal Court of Australia
Rindeklev v Comcare [2024] FCA 1023
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The appeal is dismissed.
2. Any application for costs be brought within 14 days.
3. Any application pursuant to order 2 shall be made by filing and serving written submissions of no more than three pages which state the terms of the orders sought and the contentions advanced in support of those orders, together with any necessary affidavit in support.
4. If an application is made pursuant to order 3 then the other party may file and serve written submissions of no more than three pages in reply which state the terms of any alternative form of orders and the contentions advanced in support of those orders, together with any necessary affidavit in support.
5. Subject to further order, the question of costs shall be determined on the papers.
6. The parties be notified of any request to access pages 295 to 305 of the Affidavit of Gunilla Rindeklev dated 7 February 2024 and afforded an opportunity to make further submissions as to confidentiality before any party be allowed access to those pages.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
COLVIN J:
1 Ms Rindeklev claimed to be entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) for workplace mental health injuries. She made two claims to compensation. As to the first claim in respect of alleged bullying for which she said insufficient action had been taken by her employer, a delegate of Comcare affirmed a decision that Comcare was not liable to pay compensation in respect of the claim. As to the second claim which was in respect of later events, a delegate of Comcare also affirmed a decision that Comcare was not liable to pay compensation.
2 By two separate applications to the Administrative Appeals Tribunal, Ms Rindeklev sought to review the decisions. The Tribunal listed both applications for a seven day hearing to commence on 9 November 2022. However, in October 2022, Ms Rindeklev withdrew the applications (as to the first on 18 October 2022 and as to the second on 23 October 2022).
3 Then in April 2023, Ms Rindeklev sought to 'reraise the previous withdrawn cases' in the Tribunal. The Tribunal conducted a hearing to consider whether to reinstate the applications. The Tribunal refused to reinstate the applications.
4 Ms Rindeklev then commenced proceedings in this Court seeking a review of the Tribunal's decision to refuse reinstatement. By her application, Ms Rindeklev alleged 17 errors of law by the Tribunal and advanced eight grounds of review. Comcare objected to the competency of the proceedings in this Court and brought an interlocutory application for dismissal. Submissions were filed by Comcare in support of its interlocutory application. The thrust of those submissions was to the effect that the alleged errors of law invited an impermissible review of the merits and asked the Court to make its own determination of the facts. It was also submitted that there was no seriously arguable error of law raised by the application.
5 Orders were then made for Comcare's interlocutory application and Ms Rindeklev's substantive application to be listed together for hearing. The parties were directed to exchange written submissions. By her written submissions, Ms Rindeklev deleted a considerable number of her alleged errors and sought to reformulate others. In response, Comcare repeated its submissions on its interlocutory application and made further submissions opposing any amendments to reformulate the alleged errors of law. Comcare did not oppose the deletions.
6 Ms Rindeklev conducted the proceedings in this Court on her own behalf (as she had done before the Tribunal). Perhaps understandably in those circumstances, at times her submissions in this Court both in writing and orally tended to address the merits of her application for reinstatement. Also, respectfully, it was difficult to identify recognisable errors of law from her written formulations of alleged errors and grounds. However, Ms Rindeklev developed her case in oral submissions which exposed to a greater degree the points she sought to make in support of her application.
7 In those circumstances, the course I propose to follow is to state my understanding of those matters raised by Ms Rindeklev which might amount to alleged errors of law as explained orally by reference to proposed reformulations of the alleged errors and address those matters in these reasons. To the extent that other points were sought to be made, I am of the view that they amount in substance to complaints about aspects of the factual reasoning by the Tribunal which do not disclose any error of law or simply invite this Court to decide all, or aspects of, the reinstatement application for itself. As explained below, it would be contrary to the express limit upon the extent of the review that may be conducted by this Court if contentions of that kind were to be entertained. It follows that, save to the extent of the matters addressed in these reasons, I uphold the objection to competency and would dismiss the application insofar as it seeks to raise other matters.
Structure of these reasons
8 I will first address the authorities on the nature of the statutory review that is to be conducted by the Court where a party brings an application of the kind brought by Ms Rindeklev in the present case. Then, I will address the nature and extent of the Tribunal's power to reinstate proceedings. I will then refer to a significant aspect of the way that Ms Rindeklev put her case to the Tribunal on her reinstatement application. After that, I will record my understanding of the Tribunal's reasoning. Thereafter, I will consider the matters raised by Ms Rindeklev as explained in oral submissions. Finally, I will consider an issue of confidentiality and the appropriate orders to be made on the application.
The nature of the review conducted by this Court
9 Section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) provides that a party to proceedings before the Tribunal may appeal to this Court 'on a question of law'. Where an appeal on the basis of an error of law is provided for in respect of an administrative determination then the court is required to exercise original, not appellate, jurisdiction and to do so in proceedings which are in the nature of judicial review: Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72 at [15].
10 The existence of a question of law is both the qualifying condition for the application and its sole subject matter: Brown v Repatriation Commission (1985) 7 FCR 302 at 304.
11 The statutory right to appeal to this Court from a decision of the Tribunal on a question of law does not extend to 'mere questions of fact'. There is no error of law in simply making a wrong finding of fact. However, there may be legally erroneous fact-finding. These matters were made clear in Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 at [192]. Therefore, a mere allegation of factual error does not raise a question of law, but legal error may be demonstrated in the way fact finding has been undertaken.
12 As I sought to explain in VXQB v Child Support Registrar [2021] FCA 48 at [25]:
Therefore, it might be said that questions of law are those matters which form any part of the law which must be observed by the Tribunal in making its decision and, if not properly understood and implemented by the Tribunal, are the kind of matters that could misdirect the Tribunal in the lawful performance of its fact-finding task. They may concern the fairness of the Tribunal procedure and the manner in which its decision-making task is to be undertaken including by following both the requirements of the law and the content of legal principle to be given effect in making the decision. For example, in undertaking its fact-finding task the Tribunal is required by law to undertake its task in a logical way and to ensure that there is some material before the Tribunal to enable it to make the factual findings that support its decision. However, provided such boundaries are not breached, it is for the Tribunal and not the Court to determine the facts.
13 These matters are significant in the present case because Ms Rindeklev began her oral submissions in support of her application in the following way:
… I have not asked for a merits review. I am seeking an appeal on error of law and possibly fact in a way that such a fact would easily be subsumed under the umbrella of an error of law, or asking for a fact [to be] instated where it was not declared and not relied upon by the [Tribunal] whilst it had been provided by me where such a fact was salient to the decision.
An error of law consideration comes down to the judge and the court and the particular circumstances of the case. That is why I have not listed many authorities at all about what an error of law is. For an interlocutory hearing on the competency of my appeal, I ought only need to show that the six grounds concern an error of law. The questions are not general at all. In fact, they sit on the opposite spectrum. These are the questions that were in my appeal minus the one struck out and submitted and clarified. In fact, they're so precise that [Comcare] have apparently had a problem understanding most of them. That specificity is not something that could not be overcome with my submission and the consent order that followed to eliminate all but six grounds.
14 These submissions reveal that Ms Rindeklev understood that she was required to demonstrate an error of law and that she had tried to be specific about the alleged errors. Further, she had reduced her application to six grounds in order to focus upon errors of law. However, she maintained that an error of fact could be subsumed under an error of law. This approach was too broad. It sought to add complaints about fact-finding to other complaints. Joining a complaint about a factual finding by the Tribunal to an alleged error of law did not, of itself, make the complaint one which raised a question of law.
15 Nevertheless, the opening oral submission revealed that one of the complaints raised by Ms Rindeklev was that there was factual material before the Tribunal that 'was not declared and not relied upon' and it should be 'instated' on the review. A complaint of that kind may amount to an error of law because it may have been a failure to undertake the task of considering all the evidence (or to address a submission raised) and therefore a review sought for that reason did raise a question of law. The aspects of her application that raise a contention of that kind are addressed below.
16 There is also a limited discretion for the Court to make findings that are not inconsistent with those of the Tribunal if specific statutory conditions are met: VXQB at [26]. Ms Rindeklev's application includes a request for findings of fact to be made on the appeal. The first two 'findings' are formulations of conclusions to the effect that the Tribunal was in error. The third requested finding concerns the reasons why Ms Rindeklev made her request to reinstate the proceedings at the time that she did. As will emerge, a finding as to that matter by this Court would be inconsistent with findings by the Tribunal and, in any event, would have had no bearing upon whether the Tribunal should reinstate the proceedings.
The nature and extent of the Tribunal's power to reinstate proceedings
17 The Administrative Appeals Tribunal Act makes express provision in s 42A as to the circumstances in which an application before the Tribunal may be discontinued, dismissed or reinstated. The application may be dismissed without completing the review with the consent of all parties: s 42A(1). Also, a person who has made an application for review may 'notify the Tribunal to the effect that the application is discontinued or withdrawn': s 42A(1A). If such notification is given then 'the Tribunal is taken to have dismissed the application without proceeding to review the decision': s 42A(1B).
18 Section 42A(2) provides for dismissal if a party fails to appear. Before dismissing a proceeding on that basis, the Tribunal must be satisfied that the appropriate notice has been given of the hearing at which the party fails to appear: s 42A(7).
19 Section 42A also deals with dismissal if a decision the subject of an application is not reviewable (s 42A(4) and (4A)); if an applicant fails within a reasonable time to proceed with the application (s 42A(5)(a)); or if an applicant fails within a reasonable time to comply with a direction of the Tribunal (s 42A(5)(b)).
20 There are related provisions that deal with proceedings in the Social Services and Child Support Division of the Tribunal: see s 42A(1AAA), (1AA) and (4A).
21 It can be seen that the structure of s 42A is to deal with different circumstances in which an application may be brought to an end without a substantive determination. It takes the form of a list of different circumstances in which that may occur.
22 Then, as to reinstatement, s 42A provides as follows:
Reinstatement of application
(8) If the Tribunal is taken to have dismissed an application under subsection (1B), a party to the proceeding (other than the applicant) may, within the period referred to in subsection (11), apply to the Tribunal for reinstatement of the application.
(8A) If the Tribunal dismisses an application under subsection (2) (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), a party to the proceeding may, within the period referred to in subsection (11), apply to the Tribunal for reinstatement of the application.
(9) If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
(10) If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding made within the period referred to in subsection (11) or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
(11) For the purposes of subsections (8), (8A) and (10), the period is:
(a) 28 days after the party receives notification that the application has been dismissed, unless paragraph (b) applies; or
(b) if the party requests an extension - such longer period as the Tribunal, in special circumstances, allows.
23 The above provisions concerning reinstatement differentiate between reinstatement where the Tribunal 'considers it appropriate to do so' and dismissal 'in error'. The latter case (as expressed in subsection (10)) is not confined to any of the earlier subsections. It applies generally to any dismissal 'in error'. It could apply where a matter was dismissed on the basis that notification had been given withdrawing the application where it is said that there was no such notification or where there was a dismissal for failure to appear when it is said that the required notice of the hearing was not given. Obviously, in all such cases 'error' must be demonstrated. Further, the use of the word 'may' in subsection (10) indicates the conferral of a discretion. If there is error, the Tribunal may still refuse to reinstate. However, the discretion must be exercised having regard to the evident purpose of the provision which is to provide redress in circumstances where there has been error.
24 However, there is also a broad discretion to reinstate expressed in subsection (9). For the following reasons, as a matter of proper construction, it is a discretion that is confined to the instances described in subsections (8) and (8A):
(1) both subsection (8) and subsection (8A) refer to particular types of dismissals and state that there may be an application to reinstate in such instances but do not identify any test to be applied in deciding whether to reinstate the substantive application;
(2) subsection (9) expresses a test to be applied in deciding whether to reinstate but does not identify the cases to which it applies;
(3) subsections (8) and (8A) adopt a similar form because they each identify by reference to earlier subsections a particular instance in which a person may apply for reinstatement but do not go on to specify the circumstances in which such an application may be allowed;
(4) the fact that subsection (9) follows subsections (8) and (8A), each of which does not identify the test to be applied, indicates that it is expressing the test to be applied if there is an application to reinstate that is made in reliance upon subsection (8) or (8A);
(5) subsection (9) previously followed subsection (8) and the introduction of subsection (8A) does not manifest any intention that the discretion to reinstate would be confined to the circumstances in subsection (8A);
(6) a construction of subsection (9) to the effect that it confers a general discretion to reinstate in any case if the Tribunal considers it appropriate to do so would render the general requirement in subsection (10) for 'error' to be demonstrated redundant. That is to say, it would mean that in all cases there was a discretion to reinstate an application which did not require error to be demonstrated; and
(7) having regard to the nature of the very different circumstances in which proceedings may be brought to an end (as provided for in subsections (1) to (7)), there is good reason why there may be a general discretion in the circumstances described in subsections (8) and (8A), but a requirement for error where the proceedings have been brought to an end by an adjudication made by the Tribunal (for example, that the proceedings are not reviewable or there has been a failure to proceed or comply with a direction within a reasonable time).
25 It follows that, on her application to reinstate the two applications, Ms Rindeklev had to demonstrate that the proceedings had been 'dismissed in error'. That is because s 42A(8) only applies to applications to reinstate that are brought by a party 'other than the applicant' and s 42A(8A) did not apply.
A significant aspect of the way Ms Rindeklev put her reinstatement application
26 On the application to reinstate, there was much focus upon what had occurred in relation to a statement that Comcare sought to rely upon before the Tribunal. It was a statement of a person who had been a co-worker of Ms Rindeklev. It was common ground that, for a time, Ms Rindeklev had been in a personal relationship with the co-worker. Her first application concerned the conduct of the co-worker and the response by her then employer to her complaints about his behaviour. However, her second application concerned a later period of employment by a different employer a considerable time after the issues with the co-worker.
27 Ms Rindeklev claimed that the events the subject of the first application had given rise to a mental health injury that was aggravated by the events the subject of the second application. It was in those circumstances that the two applications were to be heard together.
28 Comcare filed a statement of the co-worker and sought confidentiality orders as to its contents.
29 At a directions hearing on 17 October 2022 (First Directions Hearing), amongst other things, Ms Rindeklev raised concerns about the co-worker being a witness in the proceedings in the Tribunal. The following day she wrote to the Tribunal withdrawing the first application.
30 A directions hearing was convened for 21 October 2022 (Second Directions Hearing) to consider the consequences for the November hearing of the withdrawal of the first application. At the Second Directions Hearing, Ms Rindeklev maintained that the co-worker could not give any evidence that was relevant to the second application. When those submissions were made, Ms Rindeklev still had not been given a copy of the statement of the co-worker.
31 At the conclusion of the Second Directions Hearing, the Tribunal ordered that the co-worker give evidence at the November hearing. After that Ms Rindeklev received the statement of the co-worker and promptly emailed strongly worded complaints directly to the co-worker. They included complaints about harassment by him of her. She also sent a letter to the Prime Minister in which she complained, amongst other things, that the co-worker was perpetrating sexual harassment by repeating certain things before the Tribunal. On the same day as sending the email, she withdrew the second application.
32 About six months later she applied to the Tribunal to reinstate the applications.
33 Ms Rindeklev was questioned by the senior member. She referred in a number of answers to the contents of the statement of the co-worker being sexual harassment and intimidation. She also said that she didn't feel safe 'being basically verbally assaulted in written communication or verbal and having this assault on me again and - of a sexual connotation'. She also explained that 'it's something that I don't want to face mentally'. Ms Rindeklev also explained her view that the Federal Court could stop things being said that were harassing and vexatious but in the Tribunal she would have to 'sit there without any boundaries' and 'anything could have been thrown at me'.
34 At that point the senior member explained that 'really the only basis for reinstatement is on the basis that the application was dismissed in error' and then said: 'So, it could be an error on the part of the Tribunal, for example'. The senior member then asked whether Ms Rindeklev was saying that the Tribunal made an error by allowing the witness statement or the evidence of the co-worker. Ms Rindeklev responded: 'I do - I have to be honest. I do think that there was an error made by yourself and I don't mean to be rude'. She continued to explain what she meant by saying that she did raise a question at the Second Directions Hearing about how the statement of the co-worker could be allowed and she said that she received the response from the senior member that it was up to the Tribunal to decide whether the matters in the statement were relevant or not. Ms Rindeklev then repeated her concern about the lack of boundaries in the Tribunal when it came to what was said. She went on to say that what happened was 'just purely allowing a witness to be quite harassing' and that she did not feel safe.
35 After that Ms Rindeklev directed attention to the responsibility of Comcare and its lawyers and referred to being harassed and said they were responsible and that the use of the statement of the co-worker was 'a really dirty tactic'.
36 After responding to questions from the senior member, Ms Rindeklev was questioned by counsel for Comcare. In the course of those questions she was asked about a passage in her written submissions responding to Comcare's submissions on the reinstatement application where she said 'I do not think I have stated anywhere that I had my application dismissed in error'.
37 Ms Rindeklev was referred to the above line in her written submissions and asked:
And by that you're conveying that the application wasn't dismissed in error, aren't you?---I would like to leave that one - I might have to change my submission there because I hadn't thought in terms of error until the phone call today. The fact that there's a possibility of assessing this application under the error framework in that it might have been an error for Senior Member to allow obscene or vexatious, or what's the word, it just keeps escaping me, scandalous - scandalous.
38 In the course of that examination there was the following exchange:
And so you've asserted today that there was an error on the part of the tribunal by allowing the witness statement of [the co-worker]?---Yes.
But I think as you've just acknowledged the parties hadn't even got to [the co-worker's] statement being admitted in evidence at the point in time at which you withdrew the application: that's correct isn't it?---Well it has been admitted into evidence but not presented at the AAT court or tribunal.
Yes. So, as you say, the hearing hadn't started and [the co-worker's] evidence hadn't been exhibited like the other documents this morning, had it?---Yes. So I do think that - well what we're talking about here is the special circumstances, that's right.
Yes. So, put it this way, you don't say that there's an error on the part of the tribunal in the way it handled your case in the lead up to what was going to be the hearing last year, do you?---Yes. I think I am saying that - definitely saying that, yes. There was an error in taking that ---
What, you're saying there's an---?---Making that order on 21/10, even though I did object, might have been an error, yes.
…
Are you saying that allowing the co-worker to appear by Microsoft Teams was the error?--- No, it was allowing the witness statement to go ahead without being amended or addressed.
But you're only saying that today, you didn't think there was an error when you signed the document of 26 May '23, did you?---I didn't think in those terms, no. I didn't think in those technical terms that - I didn't think in those terms at the time that it could have been an error. That's something I'm submitting now.
39 Comcare then made oral submissions to the Tribunal in which it maintained that Ms Rindeklev needed to demonstrate 'dismissal in error' and that she had not done so.
40 In the course of responsive oral submissions by Ms Rindeklev, the senior member explained that the first question on the reinstatement application was whether the application had been dismissed in error. Then, the next question was should the Tribunal exercise its discretion to reinstate. Then, if those two hurdles were overcome there was a question whether there were special circumstances for an extension of time to bring the application because it had not been brought within the 28 day period.
41 In answer, Ms Rindeklev disavowed any claim that there had been error by the Tribunal 'by actually going ahead and not stopping the witness testimony'. She explained that her reason for that position was that the applications 'never went to trial'. Ms Rindeklev then said that if the applications had gone to a hearing and the evidence of the co-worker had been received then there would have been actual error at that point. As to this particular aspect, the submission she made to the Tribunal was as follows:
If it had gone, on the other hand, to the hearing and Senior Member had allowed for the witness testimony…then what would happen is that you would've made a decision and then I could've said you were prejudiced. And I believe that that's how you were dealing with it. I would then take - I would then appeal … based on prejudice. I think that's how it would go. So I'm not - so that's why I think the AAT didn't make an error and it couldn't have made an error and I never claimed that to be an error.
42 Ms Rindeklev then explained what she claimed was a 'special condition' (which appears to be a reference to a special circumstance), namely that the evidence of the co-worker was not relevant and its consideration had been closed by an investigation in 2016.
43 Then, having made that submission to the Tribunal, Ms Rindeklev said:
Did I give the - did I make a mistake? I don't think that's relevant for the reinstatement question. Or did the respondent make a mistake? I don't think that's relevant for the reinstatement question. I think the mistake, as I understand it, is whether the Tribunal made a mistake. I don't claim that.
44 Later, Ms Rindeklev repeated that she had made it quite clear that her reinstatement application 'is not an application under any error'.
45 At that point, the senior member then asked:
Sorry, just to clarify, so are you not saying that the application was dismissed in error? So you're not saying that there was any error?
46 Ms Rindeklev responded:
No. There can't have been an error. There is no error. All I'm saying is that it might've been an error for Senior Member to allow the witness testimony in the actual hearing and then there was a decision that might not have been favourable to me, and then I would've had [cause] to say, 'Well, look, there was some - there could've been prejudice here because the witness testimony was scandalous and irrelevant and inappropriate and highly sensitive, highly inappropriate, whatever they call it.
…
So, I'm just saying, no. In short, no. I don't think Senior Member made an error, even though I would've liked a claim under that as well just to cover my bases.
…
But I can't see an error has been committed.
(emphasis added)
47 The senior member then asked:
Okay. So just to be clear, though, so on what basis are you arguing your applications should be reinstated? I just want to be clear about that.
48 To which Ms Rindeklev responded:
Under the special circumstances.
49 Ms Rindeklev then went on to explain why she said the evidence of the co-worker was irrelevant to the second application. She then said that 'not dropping [the co-worker] off' from the witnesses for the second application was highly prejudicial and intimidating (emphasis added).
50 The senior member then received confirmation again from Ms Rindeklev that she was not saying that 'the application' was dismissed in error but that she wanted it reinstated based on special circumstances. Further, Ms Rindeklev agreed that those special circumstances were that 'the calling of [the co-worker] to give evidence … was prejudicial, intimidating and reckless' (emphasis added).
51 Ms Rindeklev then said that she feels like what occurred at the Second Directions Hearing 'should not have occurred'. She again submitted that Comcare should not have pressed for the evidence of the co-worker because it was not relevant to the second application (which concerned whether there had been an aggravation of a pre-existing mental condition). Ms Rindeklev then made further submissions as to why the evidence of the co-worker was not relevant.
52 Then, Ms Rindeklev said:
And so to your discretion question [that is, the question at the Second Directions Hearing as to whether to allow Comcare to proceed to the hearing on the basis that it sought to rely on the statement of the co-worker] … - was it an error or was it discretion, where do you lay the error, I mean, in that case? I sort of don't want to say that there was an error, even though there was … I think there is a discretionary reason here [as to whether to allow the statement to be included], and that is that there wasn't necessarily an error … but the respondent pushing on was intimidating … And I have to say, I was upset with that … and I felt that was just wrong, but how can I formulate that that was an error? I can't really.
All I can say is that I was thoroughly - thoroughly - intimidated by the respondent pressing sensational, irrelevant - and, in my view, because it was so irrelevant …
…the potential of that prejudicial value outweighing probative value was vey much a concern for me.
(emphasis added)
53 And again after that, Ms Rindeklev made further submissions to similar effect:
And like I say, it's hard to say it was an error by the AAT, unfortunately, because - unfortunately for me, because what - if it was - if it was contemplated during the hearing, then the prejudicial value of it could've been something I could've asked for an appeal for, but that never occurred. But what I felt at the time was it was just absolute slander and it was sensational, scandalous, intimidating conduct by the respondent. And unfortunately, I think the AAT, Senior Member, was kind of unwittingly kind of allowing that situation to happen.
So hence, I cannot say it was an error … I'm not applying here for an error.
(emphasis added)
54 Then Ms Rindeklev went on to refer to an application that she had made to the Australian Human Rights Commission and that she felt the actions were 'sexual abuse by Comcare'. She then submitted that she considered that Comcare was overstepping the mark and that its actions were sexual harassment.
55 Ms Rindeklev concluded this part of her submission to the Tribunal by referring to the fact that she 'was very intimidated and outraged' and that after she contacted the Australian Human Rights Commission she came to her senses 'and asked for the case to be reinstated because [she'd] gotten over [her] indignation'. Finally, she said that it was the second application that was important to get reinstated being the one 'for which this mistake was made for the one that I cancelled in outrage'.
56 After making further submissions concerning her mental health, Ms Rindeklev then said that Comcare had spent a lengthy amount of time on 'the error question' but little time on the 'discretionary question'. She described them as 'two discrete opportunities … to reinstate the case'. Ms Rindeklev then submitted: 'It's one or the other, or both, maybe, but error and discretion, the special circumstances. I don't think one has to be argued first. If I'm saying I want it reinstated on the special circumstances … I don't think [counsel for Comcare] is right in that'. And a bit later: 'I do feel that there are a lot of those criteria met under the discretionary question'.
57 At that point the senior member indicated that her understanding was that s 42A(10) is 'really the only applicable provision' and 'you need to establish that it was withdrawn in error' but indicating that the senior member would give consideration to whether special circumstances are a separate basis for reinstatement.
58 As to the significance of these submissions for the purposes of the appeal to this Court, Comcare submitted that Ms Rindeklev effectively conceded that the proceedings had not been dismissed in error. Alternatively, Comcare submitted that the Tribunal found, in any event, that Ms Rindeklev had made a deliberate decision to voluntarily withdraw her application.
59 I do not accept the first submission. Having regard to the fact that Ms Rindeklev was acting on her own behalf and taking account of the whole of her submissions to the Tribunal on the point, she could not be said to have conceded in any informed way that her applications had not been 'dismissed in error' for the purposes of s 42A(10).
60 However, what does emerge from the above contentions is the nature of the matters that were relied upon by Ms Rindeklev to support her application for reinstatement.
61 Significantly, for present purposes, Ms Rindeklev did not maintain in her oral submissions that the Tribunal's approach at the Second Directions Hearing of allowing the case to proceed with the statement of the co-worker being in the materials that would be before the Tribunal at the November hearing and with the co-worker giving evidence was a reason why the applications should be reinstated. Rather, her focus was upon the conduct of Comcare in seeking to rely upon the statement of the co-worker in circumstances where she considered that conduct to be intimidation and harassment. Certainly, Ms Rindeklev maintained that the statement was not relevant to the second application and explained that she was not happy with what she properly recognised to be a discretionary procedural decision in that regard by the Tribunal. However, in my view, it could not be said that she relied upon some form of complaint about the making of that procedural decision as a reason why the applications should be reinstated.
62 It is the case that when initially asked by the senior member whether she said that the Tribunal made an error by allowing the statement of the co-worker she did say that there was an error but it was then said to be an error because Ms Rindeklev had to sit there and get exposed to the matters in the statement and there were no boundaries. However, these matters were addressed in considerable detail in Ms Rindeklev's submissions and the focus was upon what Comcare had done and there was a recognition that there was no real complaint that could be made about what the Tribunal did given that Comcare was seeking to rely upon the statement of the co-worker in its response to the second application.
63 Therefore, I conclude that Ms Rindeklev's complaint on the reinstatement application as to what occurred in relation to the statement of the co-worker was directed to the conduct of Comcare in seeking to rely upon the statement of the co-worker when, in her view, Comcare knew that it was irrelevant and, in consequence, in her submission, Comcare's conduct was harassment.
64 It follows that, in considering the alleged errors of law raised by Ms Rindeklev in this Court, it is necessary to bear in mind that ultimately her application to the Tribunal made no real complaint about what the Tribunal did at the Second Directions Hearing. In particular, although Ms Rindeklev had indicated in her oral evidence that she thought that what the Tribunal did at the Second Directions Hearing was an error, when that evidence is viewed in the context of her subsequent oral submissions that was not the case. Ultimately, she did not contend that a reason why the applications should be reinstated was because the Tribunal should not have made the decision that it made concerning the statement of the co-worker and instead should have decided at the Second Directions Hearing to exclude that evidence. Rather, her focus was upon what Comcare did in relying upon the statement when, in her submission, it knew the statement was irrelevant to the second application.
65 Further, Ms Rindeklev's approach as to what had occurred at the Second Directions Hearing was appropriate because it could not be said that the Tribunal's decision was anything more than an exercise of a procedural discretion that was subject to a decision to be made by the senior member at the November hearing as to whether the matters in the statement of the co-worker were relevant, a matter that Ms Rindeklev understood at the time, as is apparent from her submissions to the Tribunal.
66 It is important to bear these aspects in mind in considering the Tribunal's reasoning and the errors of law that Ms Rindeklev advanced before this Court. I now turn to those two matters.
The Tribunal's reasoning
67 By way of introduction to the consideration of the Tribunal's reasoning, as may be apparent from what has already been considered, the senior member who refused the reinstatement application was the same Tribunal member who had conducted the First Directions Hearing and the Second Directions Hearing.
68 The Tribunal's reasons on the reinstatement application began with a general description of the nature of the two substantive applications that had been brought by Ms Rindeklev (paras 5-10). Then it described the circumstances that had arisen at the First Directions Hearing on 17 October 2022 (paras 11-17). The Tribunal recorded concerns that had been raised by Ms Rindeklev about the statement by the former co-worker with whom, for a time, she had been in a personal relationship. The Tribunal member described those concerns and the Tribunal's approach to those concerns in the following way (para 17):
[Ms Rindelev] raised concerns about the co-worker being a witness in the [Tribunal] proceedings. She suggested that he could give evidence by video from a different room. I indicated that I would be happy for him to give evidence via Microsoft Teams and that if [Ms Rindeklev] had a list of questions she wanted to ask, that I could ask the questions for her. [Ms Rindeklev] also stated that she had not received the co-worker's statement yet and I asked [counsel for Comcare] (who had not yet provided it pending our discussion about confidentiality and the implied undertaking) to provide it to [Ms Rindeklev]. The order of witnesses was also discussed …
69 The Tribunal then set out (para 18) the written communication by Ms Rindeklev to the Tribunal sent the following day in which Ms Rindeklev said: 'I wish to withdraw [the first application]. This is because I have recently lodged common law suit for negligence, which is confirmed proceeding to mediation, and I do not wish for there to be an unnecessary overlap for the time period that [the first application] relates to'. The communication as quoted also indicated that Ms Rindeklev wished to proceed with the second application at the hearing in November.
70 The Tribunal concluded that the effect of the communication was that by operation of s 42A(1B) the first application was taken to have been dismissed (paras 20-22). The Tribunal then observed that Ms Rindeklev was notified of the dismissal by letter from the Tribunal sent after the Second Directions Hearing held on 21 October 2022 (para 23). The Tribunal then set out what had occurred at that further directions hearing which, as has been referred to above, was convened to consider the effect of the withdrawal of the first application upon the November hearing (paras 24-28)
71 The Tribunal noted that Comcare's position at the Second Directions Hearing was that evidence that had been filed in the first application could be received at the November hearing (para 25). It observed that Ms Rindeklev objected to the evidence of the co-worker being received in the second application (para 26). It also observed that despite the Tribunal requiring the statement of the co-worker to be provided to Ms Rindeklev, that had not occurred. The Tribunal recorded in its reasons exchanges with Ms Rindeklev as to the arrangements to be made at the November hearing for questioning the co-worker (para 27). The Tribunal's reasons record that an order was made at the directions hearing for the co-worker to give evidence by Microsoft Teams (para 28).
72 The Tribunal then dealt with correspondence that was sent after the Second Directions Hearing concerning the evidence of the co-worker, including emails sent by Ms Rindeklev to the co-worker and to the Prime Minister (paras 29-33).
73 The Tribunal then recorded a communication by Ms Rindeklev to the Tribunal by which she withdrew the second application and its conclusion that the proceedings were consequently dismissed (paras 34-36). The 'relevant paragraphs' were quoted at para 34 of the Tribunal's reasons. As they assume some significance for present purposes, I will set them out in full:
1. I wish to withdraw my claim before the AAT of the [second application]. This is because I have recently lodged common law suit for negligence, which is confirmed proceeding to mediation, and I do not wish for there to be an unnecessary overlap for the time period that [the second application] relates to, regards damages for future wages and other damages.
2. I have also made that decision after careful consideration subsequent to reading [the co-worker's] statement to the [Tribunal] repeating the same abuse as I accused him of back in 2016. I believe it is a safer forum for me to meet him in court in my current case, where I can make him a co-respondent, along with others such as [colleague name omitted] where they can face personal penalties and answer to their actions, as I do not feel that Comcare can provide any pecuniary consequences for the people that are involved in the bullying and breaches of the Fair Work Act.
…
74 The Tribunal then set out the request for reinstatement made on 13 April 2023 by Ms Rindeklev and the application filed with that request (paras 37-38). The Tribunal treated the application as an application for an extension of time in which to seek reinstatement.
75 The Tribunal then dealt with the way in which Ms Rindeklev supported her application for reinstatement at the hearing of that application (paras 39-43). The Tribunal emphasised that Ms Rindeklev said that she believed that she was seeking reinstatement due to alleged special circumstances under s 42A(11).
76 The Tribunal began its consideration of the merits of the reinstatement application by considering the relevant law (paras 44-60). The senior member of the Tribunal reasoned that 'to exercise discretion to reinstate [Ms Rindeklev's] applications, I must first be satisfied that the applications were dismissed in error' (para 50). The Tribunal also said: 'If it is established that an application was dismissed in error, that alone is not enough for the application to be reinstated. The Tribunal must go on to consider whether to exercise the discretion to reinstate the application' (para 59). The discretion was said to be conferred by the terms of s 42A(10). Finally, the Tribunal concluded as to the relevant law, as follows (para 64):
Thus, if [Ms Rindeklev] can establish that her applications were (or that one of her applications was) dismissed in error, and if I am satisfied that I should exercise discretion under s 42A(10) of the [Administrative Appeals Tribunal Act] to reinstate the application, I will also need to consider whether to exercise discretion to grant the extension of time.
77 Therefore, the Tribunal considered that Ms Rindeklev had to establish three successive matters, namely:
(1) the applications had been dismissed in error for the purposes of s 42A(10);
(2) if dismissed in error, the Tribunal should exercise its discretion (said to be conferred by s 42A(10)) to reinstate the applications; and
(3) the Tribunal should grant an extension of time to bring the application to reinstate.
78 The Tribunal then referred to the reliance by Ms Rindeklev on 'special circumstances' and concluded that the concept of special circumstances only related to whether there should be an extension of time (paras 65-67).
79 After that the Tribunal commenced a section of reasoning headed 'Issues'. The Tribunal observed that if the applications were not dismissed in error then it would be unnecessary to consider 'the remaining issues' (para 69).
80 The Tribunal's reasons then addressed the question: 'Were the applications dismissed in error?'.
81 The Tribunal stated that it was satisfied that Ms Rindeklev voluntarily withdrew both her applications (para 70). This appears to be a statement that is supported by what follows which makes factual findings and reaches a final conclusion to that effect.
82 As to whether there was 'error', the Tribunal reasoned as follows:
(1) Ms Rindeklev's correspondence at the time of withdrawing the applications 'indicates that [Ms Rindeklev] chose to withdraw her applications because she had instituted proceedings in the Federal Court, a venue which she preferred because she felt more comfortable with the co-worker giving evidence there and because she thought she could pursue damages against him there' (paras 73-75).
(2) The Tribunal observed that additional reasons (to those communicated when the applications were withdrawn by Ms Rindeklev) were put forward by Ms Rindeklev at the hearing of the application to reinstate (para 76).
(3) The Tribunal said that one reason was that she was shocked and intimidated when she read the statement of the co-worker and did not feel safe, that Comcare was seeking to relitigate a previous investigation and that calling the co-worker would amount to sexual harassment (para 77).
(4) The senior member was not satisfied that Ms Rindeklev was intimidated and referred to her conduct in emailing her co-worker and threatening him with personal damages as conduct which 'tends to suggest that she was not intimidated or afraid of him' (paras 78-79).
(5) The Tribunal referred to a further reason put forward by Ms Rindeklev to the effect that she was feeling mentally unwell at the time (para 80).
(6) The Tribunal accepted that proceedings of the nature of those brought by Ms Rindeklev can be stressful to an unrepresented person, but noted that there was no medical evidence of Ms Rindeklev withdrawing because she was experiencing mental health issues (para 81).
(7) The Tribunal referred to the answer given by Ms Rindeklev to the question raised by the senior member as to whether she said there had been error by the Tribunal and quoted the answer to the effect that it was an error to allow the witness statement 'to go ahead without being amended or addressed' and to her closing submissions to the effect that she did not think there was an error (paras 82-83).
(8) The Tribunal referred to submissions by Ms Rindeklev to the effect that Comcare had intentionally sought to call the co-worker as a witness to prejudice and intimidate her (para 84).
(9) As to the submissions by Ms Rindeklev concerning the reliance by Comcare on the statement of the co-worker, the Tribunal found (paras 85-86):
(a) Ms Rindeklev could have objected to the evidence of the co-worker at the hearing;
(b) Comcare was seeking to lead evidence that it thought was of relevance and it was entitled to do so;
(c) there was no evidence that Comcare acted improperly in seeking to call the co-worker as a witness;
(d) there was no evidence that Comcare sought to intimidate Ms Rindeklev; and
(e) there had been no error in the way the Tribunal (that is the senior member) had dealt with the witness statement because it would have denied procedural fairness to Comcare to require the statement to be removed because parts of it 'were objectionable' to Ms Rindeklev and the statement had not yet been admitted into evidence.
(10) The Tribunal found the terms of a letter sent by Ms Rindeklev to the Prime Minister after withdrawing the second application showed that she made 'made a deliberate decision to voluntarily withdraw her applications for a range of personal reasons' (para 88).
(11) The Tribunal referred to a statement by Ms Rindeklev at the hearing of the reinstatement application in which she 'confirmed that one of the reasons that she withdrew her [substantive] applications was that she was concerned that her adult children would be impacted emotionally, and in their careers, if she went ahead … and the co-worker was to give evidence' (para 87).
(12) The Tribunal then made the following findings (para 88):
The above evidence shows that [Ms Rindeklev] made a deliberate decision to voluntarily withdraw her applications for a range of personal reasons including:
• a strategic decision to avoid any overlap between the Tribunal proceedings and the Federal Court proceedings;
• deciding that the forum of the Federal Court and the damages that could be claimed in those proceedings would be more preferable to her than pursuing her applications in the Tribunal;
• her discomfort about her former partner giving evidence in the Tribunal proceedings and her subjective views about the nature of his evidence;
• her concern for her mental health at the time of her withdrawals; and
• the potential 'embarrassment' that the [Tribunal] proceedings may cause her adult children.
83 Based upon the above reasoning, the Tribunal then reached the following conclusion (paras 89-90):
Based on the evidence, and the reasons put forward by [Ms Rindeklev], I agree with [counsel for Comcare's] characterisation of [Ms Rindeklev's] reasons for withdrawing as being personal and forensic reasons that were not affected by any error on the part of [Ms Rindeklev] or the Tribunal. In other words, [Ms Rindeklev's] decision to withdraw her applications was a deliberate decision that she willingly made after considering her personal circumstances …
[Ms Rindeklev] appears to have reassessed her personal circumstances and the advantages and disadvantages of proceeding with the [Tribunal] hearing and now wants her applications reinstated, or at the very least the second application reinstated. However, a change of mind, or later regret after having withdrawn, are not a sufficient basis for reinstatement because they do not amount to the applications having been dismissed in error.
Matters raised by Ms Rindeklev as alleged errors
84 As I have explained, I address the matters relied upon by Ms Rindeklev as explained in her oral submissions. I do so in the order that they were addressed orally and by reference to the numbering adopted by Ms Rindeklev (which reflected the numbering in her written submissions).
Alleged error 10
85 Ms Rindeklev's oral submissions began by relying upon the following formulation of alleged error in her written submissions:
Did the Tribunal fail to adequately dispose of the error question by failing to provide any deliberation to address a direct contention of this issue that the perceived sexual harassment in leaving the witness statement intact was related to the withdrawal of the applications as being an error under s42A(10) and residing in the Applicant?
86 The above error was described by Ms Rindeklev as 'the most significant to me and the basis of the reinstatement request'.
87 Ms Rindeklev then submitted that the 'error' under s 42A(10) that the Tribunal had not addressed was her contention that the withdrawal of her applications was a 'forced or otherwise not so voluntary withdrawal'. Reference was made to submissions made by Ms Rindeklev to the Tribunal on the reinstatement application to the effect that Comcare's main purpose in bringing forward the witness statement of the co-worker was to 'belittle, castigate, harass and intimidate' and that she withdrew her applications because she felt intimidated. Ms Rindeklev also submitted to this Court that the witness statement was not relevant to the proceedings in the Tribunal. She emphasised that it was not that she was physically or mentally intimidated or threatened by the co-worker. Rather, she pointed to the concern she had advanced before the Tribunal about Comcare's intimidation. Although that had been described by her to the Tribunal as a 'special circumstance' it was, in the submission of Ms Rindeklev to this Court, an 'error' that the Tribunal should have addressed.
88 As to these submissions, the Tribunal's reasons do address a concern raised by Ms Rindeklev to the effect that Comcare had shocked and intimidated her by seeking to rely upon the statement of the co-worker. Therefore, it was addressed by the Tribunal as part of the 'error' relied upon by Ms Rindeklev. However, the Tribunal made a reasoned factual finding that Ms Rindeklev had made a considered decision to withdraw her application for personal reasons and thereby did not accept that it was a decision made by reason of the conduct of Comcare in seeking to rely upon the witness statement. Therefore, her contentions raise a mere question of fact and do not raise a question of law.
89 Ms Rindeklev pointed to the parts of the Tribunal's reasons where it observed that she had 'admitted to not being physically or mentally afraid of the co-worker' and the conclusion that it was not satisfied that she was intimidated as, in effect, mischaracterising the contention she advanced which was about Comcare's alleged intimidation. However, the Tribunal did not confine itself to a consideration as to whether Ms Rindeklev was intimidated by the prospect of having to face the co-worker at the hearing. It went on to consider her claim that Comcare's conduct was intimidating. Therefore, it is not the case that the Tribunal did not consider that part of her submissions.
90 Ms Rindeklev also made submissions to this Court that the conduct by Comcare in relation to the witness statement amounted to sexual harassment and intimidation that was an error 'working on' her. That is to say, it affected her decision to withdraw the applications. Assuming for the moment that a matter of that kind would amount to an 'error' for the purposes of s 42A(10), as I have explained, it was a matter that was addressed by the Tribunal and not accepted as a matter of fact.
91 Then Ms Rindeklev made submissions as to the intimidation that she felt by reason of the content of the aspects of the witness statement by the co-worker and the fact that she felt sexually harassed. However, again, the Tribunal dealt with the contention that Comcare's conduct was intimidating. It did not refer expressly to a contention that it was sexual harassment. However, it was clear from the nature of the content of the contentious statement in the witness statement (not reproduced by the Tribunal in its reasons in circumstances where confidentiality was being maintained as to those matters) that it was addressing a submission to that effect.
92 I do not accept that the Tribunal was required to consider in terms whether Ms Rindeklev was sexually harassed by the conduct of Comcare in seeking to rely upon the statement of the co-worker. As I have explained, its task was to determine whether 'error' for the purposes of s 42A(10) was demonstrated. Even assuming that 'error' might take the form of conduct by Comcare in the Tribunal proceedings that caused Ms Rindeklev to withdraw her applications, it was not part of that inquiry for the Tribunal to consider whether Comcare's conduct might be characterised as sexual harassment. There was no error of law in its failure to do so.
93 Ms Rindeklev also made submissions to the effect that her point in relation to Comcare's conduct being sexual harassment had not been dealt with by transparent and sufficient reasons. For reasons already given, I do not accept that submission.
Alleged error 1
94 The next alleged error addressed by Ms Rindeklev in her oral submissions was formulated in writing in the following terms:
Did the Tribunal misinterpret in the relevant legislation the integrity of errors possibly found under s42A(10) as being vulnerable to an automatic dismissal firstly by s 42A(1B) or conditions under s42A(9), leading it also to illegally discontinue its enquiry of the error residing in the Applicant?
95 As far as I can ascertain, the above alleged error was to the effect that the Tribunal mentioned all the other reasons for withdrawal and, in consequence, discontinued its inquiry as to Comcare's conduct in relying upon the witness statement. That is to say, the Tribunal focussed upon other matters to the exclusion of the submission made by Ms Rindeklev to the Tribunal that she was intimidated by Comcare's conduct (which she characterised as sexual harassment).
96 For reasons already given, I do not accept that the Tribunal focussed upon other matters to the exclusion of the contention by Ms Rindeklev concerning Comcare's conduct in seeking to rely upon the statement of the co-worker.
Alleged error 11
97 Ms Rindeklev then advanced submissions to support the following written statement of alleged error:
Did the Tribunal err when artificially constructing that the Applicant had claimed that a reason for withdrawal had been mental health issues, leading to this issue not being contended genuinely, but concluding the Applicant had failed to provide evidence?
98 In support of the above formulation of alleged error Ms Rindeklev submitted to this Court that the Tribunal had 'artificially' constructed a claim by Ms Rindeklev that a reason for her withdrawal of the claims had been mental health issues. She submitted that the only reference to her 'being too ill' was found in her application for an extension of time. Ms Rindeklev contended that her mental health was not part of why she applied for reinstatement.
99 As to this aspect, the Tribunal reasoned as follows (paras 80-81):
A further reason put forward by [Ms Rindeklev] for withdrawing her application was that she was feeling mentally ill at the time and 'I did not feel like I was well enough to be able to mentally withstand that without danger to my mental health because I was still in a fairly active phase of anxiety and probably depression'. Further, she explained:
… in my emotional mind I thought I - to be honest, I just needed - due to the intimidation I needed to have the Comcare out of my hair and Moray & Agnew, and what they'd done, and I needed to take a good break from - not a break, I never thought I'd come back. I never thought I would ask for re-raise but I thought this is doing me more injury again and I can't handle it at the moment because at the time I was still quite ill. I was still having nightmares, for instance, and stuff like that. So I did not feel safe and I think that was the main - main reason is that I have my Federal Court anyway. The money will be coming my way, some way, you know, at some point and I felt due to the intimidation I've got my Federal Court case anyway.
I accept that [Tribunal] proceedings of this nature can be stressful to an unrepresented person such as [Ms Rindeklev]. I also note, however, that there is no medical evidence of [Ms Rindeklev] withdrawing because she was experiencing mental health issues. At the hearing on 21 June 2023, [Ms Rindeklev] stated that she was 'in a better place now' and that she had 'a lot of protective factors' and that she was 'financially … able to get representation'. At the 11 August 2023 hearing she stated that she now thought the issue of legal representation was not relevant to her reinstatement application.
100 The reference to the two hearing dates reflects the fact that the application to reinstate was heard over those two dates.
101 Then, as has already been noted, the Tribunal made findings as to the 'range of personal reasons' for which Ms Rindeklev made a deliberate decision to withdraw her applications. They included 'her concern for her mental health at the time of her withdrawals'.
102 It is not suggested that the matters quoted by the Tribunal in the above passages were not accurate. I have already referred to parts of the proceedings before the Tribunal on the reinstatement application in which Ms Rindeklev did raise consequences for her mental health in support of her application. The issue was not 'artificially' constructed by the Tribunal.
103 In any event, counsel for Comcare made submissions at the reinstatement hearing before the Tribunal as to Ms Rindeklev's mental health. They were introduced by stating that Ms Rindeklev had 'submitted that she's not an ordinary person and was mentally ill at the time' of the withdrawal. Therefore, Comcare approached the application in the Tribunal on the basis that she relied upon her mental health as a reason why she withdrew the applications. That is a further reason explaining the Tribunal's reference to that aspect in its reasons.
104 Before this Court, Ms Rindeklev referred to submissions made by counsel for Comcare to the Tribunal concerning her mental health at the time of withdrawal of her applications and then submitted to this Court:
So saying that I wasn't well at the time of withdrawal is stating the absolute blaming obvious. I was claiming for mental illness. I've stated there's a reason for reinstatement. I'm in a better place now, and I have supports in place. I think that's kind of, like, neither here nor there. That's a reinstatement request. It's nobody's business, really, why I'm asking for reinstatement.
105 Therefore, it appears that the contention being made as to the alleged error is that Ms Rindeklev did not raise an issue about her mental health in support of her application for reinstatement and that explains why she did not lead medical evidence whilst also saying that, in any event, by reason of the nature of her claim it was obvious that her mental health was affected at the time she withdrew the application.
106 Therefore, it was relevant for the Tribunal to consider and make findings as to those matters. Its findings were to the effect that a concern on the part of Ms Rindeklev for her own mental health was one of the reasons why she made a deliberate decision to withdraw the applications. There was no finding that Ms Rindeklev was experiencing mental health issues at the time.
107 There was no error in the Tribunal addressing the state of Ms Rindeklev's mental health at the time of the withdrawal. That was because it was in issue. Otherwise, the contentions seek to do no more than dispute the factual finding by the Tribunal without articulating any question of law.
Alleged error 3
108 Ms Rindeklev then addressed an alleged error of law formulated in writing as follows:
Did the Tribunal fail to adequately dispose of the error question by failing to assess if the error could reside in the Tribunal, pertaining to the refusal of separating the court books as requested by the Applicant on 21 October 2022?
109 Having regard to Ms Rindeklev's oral submissions, the above formulation concerned what the Tribunal did when the issue about the statement of the co-worker was raised at the Second Directions Hearing. The complaint seems to be that there was an 'error' because the Tribunal had not agreed to separate the court books for the two applications at the Second Directions Hearing (that is, after Ms Rindeklev had already given notice of withdrawal of the first application). The error of law was formulated on the basis that a complaint about what happened at the directions hearing might be an 'error' for the purposes of s 42A(10).
110 In written submissions, Ms Rindeklev said as to the above alleged error that:
Saying 'Comcare was seeking to lead evidence they thought was of relevance and they were entitled to do so' does not deliberate as to why exactly the offensive parts should be included. The Application was unrelated, with a five-year gap, and involved a different agency with different staff.
(footnote omitted)
111 The submissions included a footnote to the Tribunal's reasons concerned with whether there was error in the way the Tribunal had dealt with the statement of the co-worker at the directions hearings.
112 As I have explained in dealing with the events that occurred at the reinstatement hearing, Ms Rindeklev did not advance any claim that there was error that 'resided in' the Tribunal in the procedural decision it made at the Second Directions Hearing concerning the statement of the co-worker. In any event, the question whether there was an error by the Tribunal in allowing the statement of the co-worker to be included in the materials for the November hearing was addressed by the Tribunal. There was no failure by the Tribunal of the kind alleged.
Alleged error 7
113 Next, Ms Rindeklev addressed a formulation of an alleged error of law in the following terms:
Was disallowing the HR Investigation Report into evidence at the Reinstatement Hearing 11 August 2022 a jurisdictional error?
114 The reference to the 'HR Investigation Report' is to an investigation conducted into events that were the subject of the first application. It appears that the subject matter of the report included a consideration of the conduct of the co-worker.
115 In oral submissions Ms Rindeklev directed attention to a paragraph in the early part of the Tribunal's reasons when describing what had occurred at the first of the directions hearings (after which Ms Rindeklev withdrew her first application). The paragraph is as follows (para 11):
Part of the background factual matrix of these applications was that [Ms Rindeklev] had a personal relationship with a co-worker. The relationship ended and she subsequently made allegations against this co-worker (who I will refer to as the co-worker), including allegations of intimidation, harassment and bullying at work, in statements dated 28 July 2020 and 11 August 2020 which she made in application 2021/0077. She alleged that management did not properly deal with her complaints against the co-worker and that she was also bullied by colleagues, including her manager who found issues with her performance.
(original emphasis)
116 Ms Rindeklev said that there was an error by the Tribunal in not receiving into evidence at the hearing of the reinstatement application evidence of the investigation that formed part of the factual matters that Ms Rindeklev relied upon in bringing the first application. Respectfully, it was difficult to follow the precise point being made, but it seemed to be that the later finding in the Tribunal's reasons to the effect that there had been no error in the way in which it approached the statement of the co-worker at the directions hearing could not have been made without understanding what had been in issue at the time of the investigation.
117 The submission made to this Court was to the effect that the Tribunal needed to look at the investigation report in order to determine some matter that was relevant to the reinstatement application.
118 Therefore, the allegation appeared to be that there was error by the Tribunal in what it did in relation to the statement of the co-worker at the reinstatement hearing because it should have received the investigation report to decide whether the Tribunal erred at the Second Directions Hearing in not finding that the statement of the co-worker was irrelevant. For reasons already given, there was no such claim made before the Tribunal. Therefore, it would not have been an error if it was not addressed at all by the Tribunal. Consequently, it was not an error for the Tribunal to fail to receive material on the reinstatement hearing the purpose of which was said to be a demonstration of error at the Second Directions Hearing.
119 However, as I have explained, it was the case that the Tribunal in its reasons on the reinstatement application did consider whether there had been 'error' in the approach by the Tribunal at the Second Directions Hearing to the statement of the co-worker and concluded that there had been no error by the Tribunal in its approach to the witness statement.
120 The submissions advanced by Ms Rindeklev in support of the ground went no further than claiming that the Tribunal should have received the investigation report on the reinstatement application so that it could decide whether a different procedural direction should have been made concerning the statement of the co-worker. It did not explain why a claim that a different procedural direction might have been made could form a basis for the Tribunal concluding on the reinstatement application that the substantive applications had been dismissed in error.
121 Given the procedural nature of the issue it would not be an error of law for the Tribunal not to receive material on the reinstatement application the only purpose of which could be to support a contention that the statement was irrelevant. The Tribunal was entitled to approach the procedural question at the Second Directions Hearing on the basis that it was a matter for the November hearing to determine whether the statement should be admitted into evidence. Therefore, it was not an error of law to deal with that aspect at the hearing of the reinstatement application without receiving the investigation report.
Alleged error 13
122 The final alleged error that Ms Rindeklev advanced orally was recorded in the following terms in her submissions:
Did the Tribunal err when finding that allowing the full evidence in (a) application 2021/0077, and (b) 2022/3333, was required to provide procedural justice, by artificially restricting the applicable question and thereby did not dispose of the error question in sufficient manner?
123 Doing the best I can, it appears that this ground also concerned the approach that the Tribunal had adopted at the Second Directions Hearing when it allowed the statement of the co-worker to remain in the materials for the November hearing. For reasons that have been given, there was no error by the Tribunal in not considering such matters because Ms Rindeklev did not rely upon an error by the Tribunal as to what it did at the Second Directions Hearing. The fact that the Tribunal did address that issue did not mean that there was an error of law because Ms Rindeklev now wants to claim in this Court there was error in the approach at the Second Directions Hearing being an error of a kind that was not put to the Tribunal at the time of the reinstatement hearing.
Prejudice and bias
124 By her written submissions, Ms Rindeklev referred to concerns of actual and assumed prejudice because a Tribunal member might exhibit bias in presiding over their own potential error. In oral submissions this was said to be a claim of prejudice, actual bias and apprehended bias. The nature of the alleged 'prejudice' is not apparent. There was no suggestion in the submissions advanced by Ms Rindeklev, nor in the materials before the Court, of any basis for a claim that there was some form of prejudice that the senior member had adopted, or was disposed to adopt, towards Ms Rindeklev. I put that aspect to one side.
125 Allegations of bias were not raised in the application to this Court or in the reformulated grounds set out in the written submissions filed by Ms Rindeklev. In the course of oral submissions, Ms Rindeklev sought to add a claim of actual and apprehended bias to her alleged errors of law. She was asked to provide particulars. What emerged as the basis for the claim that was sought to be added to the appeal was:
(1) an allegation that in support of her reinstatement application Ms Rindeklev had claimed that there had been error in the decision made at the Second Directions Hearing about the approach to the statement of the co-worker; and
(2) there was actual or apprehended bias because the senior member was called upon to decide whether she had been in error in her own approach at that hearing.
126 The application was opposed by Comcare essentially on the basis that it was without merit because a claim that there had been error by the Tribunal at the Second Directions Hearing was not part of the basis upon which Ms Rindeklev had sought reinstatement. Therefore, so it was submitted by Comcare, it was not the case that the senior member was called upon to adjudge her own alleged error.
127 For reasons I have given, Ms Rindeklev did not rely upon any such alleged error to support her reinstatement application. She disavowed any such claim in her written submissions on the reinstatement application. Although she said during her evidence that allowing the statement of the co-worker to go ahead without being amended or redressed was an error, as I have explained, by the time of her oral submissions (made after Comcare maintained that the applications had not been 'dismissed in error'), Ms Rindeklev did not persist with any claim of that kind.
128 For those reasons, I uphold Comcare's opposition to the addition of the proposed ground. That is to say, I accept the submission that the foundation for the allegation as formulated by Ms Rindeklev in oral submissions (namely, that the senior member was called upon by the case advanced by Ms Rindeklev in support of her reinstatement application to adjudge whether she had been in error) was not established.
129 Lest it be said (contrary to the above) that Ms Rindeklev's allegation of bias relies upon the express reasons of the Tribunal to the effect that there was no error by the Tribunal (even though it was not an issue that the Tribunal was called upon to decide for the purposes of the reinstatement application), I now turn to whether the inclusion in the Tribunal's reasons of a paragraph to that effect means that there was actual or apprehended bias.
130 It is necessary to consider again what the Tribunal said as to whether it had erred at the Second Directions Hearing. It dealt with the claims by Ms Rindeklev to the effect that Comcare's conduct in seeking to rely upon the statement of the co-worker had been improper in respects that were said to support her reinstatement application. It rejected them. The Tribunal then said (para 86):
This evidence is also relevant, and supports a finding, that there was no error by the Tribunal. That is, I did not err in the way I dealt with the witness statement. I would have denied Comcare procedural fairness if I had decided that the co-worker could not give evidence. It would also have been improper of me to direct that the parts of the witness statement that were objectionable to [Ms Rindeklev] were to be removed. In any event, the co-worker's statement had not been admitted into evidence at the hearing because we had not yet reached the hearing. The statement was also covered by a confidentiality order which prohibited the disclosure of the content of the statement to anyone except the persons listed in para [13] above.
131 The principles as to actual and apprehended bias are concerned with ensuring impartiality. It is a basic principle that a tribunal entrusted with decision-making authority be independent and impartial and be seen to be so.
132 Where impartiality is questioned, the relevant inquiry concerns whether the decision-maker might not bring an impartial mind to the resolution of the question that the decision-maker is required to decide, a matter to be adjudged by reference to what a fair-minded lay observer might reasonably apprehend as to what might be the case: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ). It requires consideration of what is a real and not remote possibility: at [7]. It involves the following steps:
(1) identification of what it is said might lead the decision-maker to make a decision other than on the legal and factual merits;
(2) articulation of a logical connection between that matter and the feared departure from deciding the case on its merits; and
(3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.
See Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289 at [11].
133 In the present case, the matter that might be said to lead the senior member to decide the reinstatement application otherwise than on its merits is the calling into question of the senior member's approach at the Second Directions Hearing in the course of the hearing (though not ultimately) and the fact that the senior member nevertheless addressed the point in the reasons. Given the circumstances, the apprehension that must be demonstrated to arise for a fair-minded observer is that the Tribunal would not decide the reinstatement application impartially because there will be an actual or subconscious desire to justify the senior member's own approach at the earlier Second Directions Hearing.
134 There is no suggestion that the senior member had a personal interest in the outcome. Further, at the time of the hearing of the reinstatement application, no concern was raised by Ms Rindeklev about the senior member dealing with the application, a matter which suggests that she had no such concern. The issue of alleged error in the approach at the Second Directions Hearing arose in the course of the hearing and as a result of the senior member's own inquiry. There was no suggestion that the conduct of the senior member manifested any annoyance or animus towards Ms Rindeklev by reason of anything that she said about what had occurred at the Second Directions Hearing.
135 The fact that a decision-maker expresses a view concerning the correctness of a past procedural order made by the decision-maker and does so in the course of dealing with a subsequent application in the same proceeding does not mean that there is bias or apprehended bias that infects a decision.
136 No doubt parties to tribunal proceedings may, from time to time, be unhappy with a procedural ruling. Indeed, they may seek to have the effect of such a ruling revisited and reversed or revised. The fact that they do so does not give rise to an apprehension that the tribunal member has a closed mind or will not consider the further application on its merits such that the question must be addressed by another tribunal member. Further, the fact that a procedural aspect has been decided adversely to the position of one party does not mean that a fair-minded lay observer might apprehend that the tribunal member might be predisposed to determine future applications adversely to that party. Even more so where, as here, it is not until the tribunal member raises the issue that any claim of past error is suggested.
137 However, the fact remains that during the course of the reinstatement hearing, the prospect emerged that a basis for the application might be some form of alleged error in the way in which the senior member had resolved the Second Directions Hearing. Importantly, it was not some complaint about the way the senior member had behaved in conducting the Second Directions Hearing that emerged. Rather, the possible complaint was that the wrong procedural decision had been made by not removing the statement of the co-worker from the materials; a complaint that, by the end of the hearing, was not maintained, but which the senior member nevertheless considered it appropriate to address in reasons.
138 It was a complaint that was without proper foundation. That is to say, the senior member did not determine that the statement was relevant and could be relied upon. All that was decided at the Second Directions Hearing was that the statement should not be removed from the materials that would be before the Tribunal at the time of the scheduled November hearing. In circumstances where Comcare sought to rely upon the statement and steps had been taken to ensure confidentiality as to the contents of the statement, that was an unremarkable procedural course for the Tribunal to have followed.
139 The question for the senior member on the reinstatement application was whether the two substantive applications had been dismissed in error where it was Ms Rindeklev's own act of giving notices withdrawing them that effected the dismissal. It remains unclear how some kind of 'error' in the procedural decision made at the Second Directions Hearing might support a conclusion that the applications were dismissed in error, especially where Ms Rindeklev accepted in her evidence to the Tribunal that the possibility of such an error only occurred to her in the hearing of the reinstatement application and was not in her mind when she decided to withdraw the applications. (Indeed, it could not have had any consequence for the withdrawal of the first application because that occurred before the Second Directions Hearing.)
140 Taking all these matters into account, the fair-minded observer would conclude by the end of the hearing of the reinstatement application that the senior member was not being called upon to adjudicate her own alleged earlier error. Further, the fair-minded observer would conclude that there had been no basis to question what the Tribunal had done (as indeed Ms Rindeklev herself recognised in the course of the Second Directions Hearing). These aspects of the context in which the senior member then referred to the point in the reasons and expressed reasons why there had been no such error, meant there was an absence of any logical connection between the factor said to give rise to concern as to whether the reinstatement application would be decided on its merits and the apprehended deviation from deciding the application on its merits. It was not a matter that might cause the fair-minded observer to conclude that the senior member might not have brought an independent mind to the resolution of the reinstatement application. The reference to the issue in the reasons is not brought to bear as part of the reasons why the reinstatement application should be refused. Rather, the reasons rest upon the finding that Ms Rindeklev made a deliberate decision to voluntarily withdraw her application for a range of personal reasons.
141 The reasons given by the Tribunal as to why there was no error in what occurred at the Second Directions Hearing are an explanation provided to a litigant in person as to why the course of allowing Comcare to seek to rely upon the witness statement at the November hearing (where its relevance would be determined) was necessary in order to ensure procedural fairness to Comcare. It was not part of the justification for the decision on the reinstatement application.
142 The reasoning to the effect that there was no error by the Tribunal was expressed after the Tribunal had already recorded (correctly) that Ms Rindeklev had confirmed in the hearing that she did not think that the senior member had made a mistake (para 83).
143 Having said that, I note that the Tribunal did say (para 89): 'Based on the evidence, and the reasons put forward by [Ms Rindeklev], I agree with [counsel for Comcare's] characterisation of [Ms Rindeklev's] reasons for withdrawing as being personal and forensic reasons that were not affected by any error on the part of [Ms Rindeklev] or the Tribunal' (emphasis added). However, that language is explained by the Tribunal's conclusion that no error by the Tribunal was alleged.
144 For those reasons, the inclusion by the Tribunal in its reasons of a paragraph as to why there was no error by the Tribunal in what occurred at the Second Directions Hearing does not establish actual or apprehended bias.
Confidentiality and orders
145 Before the Tribunal confidentiality orders were made. An issue arose as to whether similar orders should be made in these proceedings. At the hearing, I made the following orders as to confidentiality.
Until 3 May 2024 or further order and pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), pages 295 to 305 of the Affidavit of Gunilla Rindeklev dated 7 February 2024 be kept confidential on the Court file and are not to be published or disclosed, save to any party, their legal representatives or counsel in these proceedings.
On or before 5 April 2024 the parties do provide any submissions as to why or why not the order for confidentiality should continue.
146 Ms Rindeklev indicated during the hearing that she did not seek the continuation of confidentiality. In written submissions filed after the hearing, Ms Rindeklev indicated that she had no objection to confidentiality orders being put in place as to any portion of her affidavit.
147 Comcare also filed submissions as to confidentiality. Its position was that if this Court did not intervene by making a confidentiality order then it would be allowing its procedures to be used in a way which would erode the existing and continuing confidentiality order of the Tribunal. It sought an order that the confidentiality order made at the hearing continue until the order of the Tribunal as to confidentiality was vacated or until further order.
148 In responsive submissions, Ms Rindeklev raised a concern that she may be breaching confidentiality by bringing other proceedings in this Court in which she raised complaints about what had occurred in relation to the contents of the co-worker's statement. Although she expressed the view that it 'would be easier for everybody' if it remained confidential, she said that her fears that she might be breaching the confidentiality order of the Tribunal were a reason why the confidentiality should be lifted. She also said: 'If Comcare really wanted to make the sorts of allegations [that] were made in the witness statement, then they should face up to it and back what they did, not hide'.
149 Having considered these submissions, for the following reasons, I do not make any further confidentiality order.
150 Although the fact that a confidentiality order has been made by the Tribunal is a matter to which this Court may have regard in determining whether to make a suppression order, the question whether this Court should make an order in respect of the conduct of its proceedings is entirely discrete and there is a fundamental difference between what is appropriate in the Tribunal and what is appropriate in this Court: Herald & Weekly Times Limited v Gregory D Williams (formerly identified as VAI) [2003] FCAFC 217; (2003) 130 FCR 435 at [26]-[32] (Merkel J, Finn and Stone JJ agreeing). The contentions advanced by Comcare by reference to the order made by the Tribunal are misconceived.
151 Section 37AE of the Federal Court of Australia Act 1976 (Cth) provides that the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. The making of the order must be necessary to prevent prejudice to the administration of justice: Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at [30] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ); and The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44; (2020) 275 FCR 377 at [8]-[9] (Allsop CJ, Wigney and Abraham JJ).
152 The matters raised by the parties provide an insufficient foundation for continuing the confidentiality order and I will not do so. However, I will direct that the parties be notified of any request to access pages 295 to 305 and afforded an opportunity to make further submissions before any party be allowed access to those pages.
153 The confidentiality order made by the Tribunal remains in place. Absent some form of review application concerning the making of the confidentiality order by the Tribunal, this Court has no role to perform as to the continuation of that order. If a party seeks to vary or discharge the order, the necessary course is to apply to the Tribunal. Further, as matters stand, it would be prudent for a party who seeks to rely upon a document the subject of the Tribunal's confidentiality order to seek to be released from what is often described as the implied undertaking which attaches to documents which come into the possession of a party because another party was compelled to provide them as part of a court (or tribunal) process (and to take steps to preserve confidentiality until that matter has been considered). These are matters that must be raised in the Tribunal because it is the Tribunal that made the confidentiality order and it supervises any ongoing issues as to the use of the statement of the co-worker provided by Comcare to Ms Rindeklev in the course of the Tribunal proceedings.
154 Otherwise, for the reasons I have given, the appropriate order is that the application be dismissed. In those circumstances, I do not propose to make any separate order on the interlocutory application brought by Comcare.
155 At the end of the hearing, I indicated that I would give the parties an opportunity to make any submissions as to costs once the outcome of the appeal is known. I will make orders for the parties to file any submissions as to costs and, subject to further order, will deal with the question of costs on the papers.
I certify that the preceding one hundred and fifty-five (155) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin. |
Associate:
