Clement v Comcare [2008] FCA 1779 (1 December 2008)

KRISTINE CLEMENT v COMCARE, MINISTER FOR FINANCE AND DEREGULATION, AUSTRALIAN BUREAU OF STATISTICS and COMMONWEALTH OF AUSTRALIA
ACD 29 of 2008

STONE J
1 DECEMBER 2008
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 29 of 2008

BETWEEN:	KRISTINE CLEMENT Applicant
AND:	COMCARE First Respondent MINISTER FOR FINANCE AND DEREGULATION Second Respondent AUSTRALIAN BUREAU OF STATISTICS Third Respondent COMMONWEALTH OF AUSTRALIA Fourth Respondent

JUDGE:	STONE J
DATE:	10 NOVEMBER 2008
PLACE:	CANBERRA

1 The application in this matter was filed on 19 September 2008. On 10 November 2008 I dismissed the application pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) with costs and also refused the applicant leave to appeal from that order. I undertook to provide reasons at a later date. These are my reasons.

2 The proceeding involved an application to have the Court decide questions of law "in relation to" certain proceedings in the Administrative Appeals Tribunal. Initially, these issues had been raised in notices of motion filed on 12 August 2008 in matters ACD 4 and 5 of 2008, which are applications for leave to appeal from a decision of Emmett J.

3 On 18 August at a directions hearing for ACD 4 and 5 of 2008, Gyles J pointed out that the questions of law relating to the AAT proceedings were irrelevant to the applications for leave to appeal and separate proceedings would need to be brought in respect of those questions. Accordingly the applicant commenced the present proceeding.

4 As I understand it, the proceedings before the Tribunal concern Comcare’s right under s 57 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) to require the applicant to attend an appointment with a psychiatrist in Canberra. According to Mr Dubé, who appeared for Comcare, Ms Clement commenced the present proceeding before the Tribunal had heard the application before it. On being advised of this proceeding the Tribunal suspended any attempt to deal with the application before it until the present proceeding was resolved.

5 The questions in the original application span some 9 pages and are categorised under the following headings:

(a) questions of law in relation to Comcare, and the Australian Bureau of Statistics (37 questions);

(b) questions of law in relation to the Administrative Appeals Tribunal (five questions); and

6 The subject matter of the questions ranged from whether Comcare has power to require an applicant for compensation to undergo a medical examination in certain circumstances to whether various provisions of the SRC Act, the Federal Court of Australia Act and the Federal Magistrates Act 1999 (Cth) are constitutionally valid. The first category includes, for example, questions such as:

7 These examples, chosen at random, are sufficient to give the flavour of the original application. Given that Ms Clement is not legally qualified and was appearing for herself, at a directions hearing on 22 September 2008 I attempted to explain to her some of the inadequacies of her application. I ordered that she file an amended application by 28 October 2008. An amended application was filed by that date.

8 Unfortunately, the amended application does not address the inadequacies of the original application. In fact it compounds them by adding additional questions, especially in relation to Comcare and the Australian Bureau of Statistics. Some of the additional questions would also involve a challenge to the orders made by Emmett J, the subject of the applications in ACD 4 and 5 of 2008. Also, the applicant has sought to add three additional respondents, namely, the Minister for Finance and Deregulation, the Australian Bureau of Statistics and the Commonwealth of Australia.

9 It is my view that the majority of questions asked and issues raised in the amended application should be struck out. I am also satisfied that there were no possible identifiable questions of law raised in the application that could in any way relate to the three additional respondents. There are, however, some questions which appear to relate to genuine grievances (justified or otherwise) which involve Comcare and which Ms Clement would be entitled to raise before the Tribunal. While Mr Dubé quite properly drew my attention to some of those issues, I have no doubt that, were the matter to proceed on the basis of the amended application, there could be no reasonable prospect of Ms Clement succeeding.

10 I have considered whether Ms Clement should be given leave to replead only in relation to those issues. However, I have decided that the most efficient and effective way to deal with any genuine grievance of the applicant, is for the amended application to be dismissed pursuant to s 31A of the Federal Court of Australia Act or, alternatively, pursuant to O 20 r 5(1)(b) of the Federal Court Rules. This would leave the way clear for the Tribunal to deal with the issues raised by Ms Clement on their merits, and for her to seek judicial review of the Tribunal’s reasons if she is of the opinion that appropriate questions of law arise in relation to those reasons. The Tribunal is the appropriate forum in which to raise a challenge to the position taken by Comcare.

11 For these reasons, as stated above, I dismissed the application with costs. Ms Clement immediately made an application pursuant to O 52 r 10(1) of the Federal Court Rules for leave to appeal from the interlocutory judgment. I refused the application for leave, because I considered that an appeal from the order dismissing the application had virtually no prospect of success.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

The Applicant appeared in person.

Counsel for the First Respondent:	B Dubé

Solicitor for the First Respondent:	Australian Government Solicitor

Solicitor for the Second Respondent:	P Vane-Tempest of Blake Dawson

Solicitor for the Third Respondent:	K Watson of Australian Government Solicitor

Solicitor for the Fourth Respondent:	P Vane-Tempest of Blake Dawson/ K Watson of Australian Government Solicitor

Date of Hearing:	10 November 2008

Date of Judgment:	10 November 2008

Date of Publication of Reasons:	1 December 2008