FEDERAL COURT OF AUSTRALIA Dunstan v Comcare [2007] FCA 504 COLIN GEORGE DUNSTAN v COMCARE AND COMMONWEALTH OF AUSTRALIA ACD 20 OF 2006 GYLES J 10 APRIL 2007 CANBERRA IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ACD 20 OF 2006 BETWEEN: COLIN GEORGE DUNSTAN Applicant AND: COMCARE First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent JUDGE: GYLES J DATE OF ORDER: 10 APRIL 2007 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. The applicant, Colin Dunstan, is to pay the costs of the Commonwealth of Australia of the proceeding, including the notice of motion filed 22 September 2006. 2. All applications by the applicant to amend are dismissed. 3. The proceeding is dismissed. 4. The applicant is to pay the costs of Comcare of the proceeding including the costs of all notices of motion to which it was a party. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ACD 20 OF 2006 BETWEEN: COLIN GEORGE DUNSTAN Applicant AND: COMCARE First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent JUDGE: GYLES J DATE: 10 APRIL 2007 PLACE: CANBERRA REASONS FOR JUDGMENT 1 By letter of 3 January 1995 the applicant, Colin Dunstan, made a complaint to the Human Rights and Equal Opportunity Commission (the Commission) against Comcare under the Disability Discrimination Act 1992 (Cth). 2 On 10 July 2006 the President of the Commission issued a notice of termination of that complaint pursuant to s 14 of the Human Rights Legislation Amendment Act (No 1) 1999. The notice, omitting formal parts, was as follows: 'The complaint attached hereto as Attachment A made by Mr Colin Dunstan on 3 January 1995 is terminated pursuant to section 10 of the Act on the ground that before 13 April 2000: · the Commissioner had decided not to inquire or not to continue to inquire into the complaint; and · the complainant required the Commissioner to refer the complaint, or the Commissioner's decision to the President; and · the President had not made a decision in relation to the complaint. A copy of the Commissioner's letter which outlines the reasons for not commencing or not continuing the inquiry is provided at Attachment B.' 3 Attachment B was a letter dated 15 June 1995 from the Disability Discrimination Commissioner to Mr Dunstan in the following terms: 'I refer to your complaint under the Disability Discrimination Act 1992 (the Act) against COMCARE Australia. I understand in September 1994 you submitted a claim to COMCARE. Your claim has been assessed but COMCARE has disallowed it as they are not satisfied that your employment has contributed to your condition. You have advised in your letter of 20 April 1995 that you are pursuing the matter through COMCARE. As Part VI of the Safety Rehabilitation and Compensation Act 1988 provides a review procedure for decisions about compensation that includes access to review by the Administrative Appeals Tribunal, I think your concerns are more appropriately dealt with under that legislation. Therefore, I have decided not to inquire into your complaint. The Act provides that if you disagree with my decision about your complaint and you would like to take the matter further, you have the right to require me to refer your complaint to the President of the Commission for a review of my decision. You must notify me within twenty-one (21) days after the receipt of this letter if you consider the decision is incorrect. In that letter, you should identify the basis on which you consider my decision to be incorrect.' 4 On 31 July 2006 this proceeding was commenced against Comcare as first respondent and Australian Taxation Office as second respondent seeking to pursue the complaint which had been terminated. The second respondent was later amended to Commonwealth of Australia, the Australian Taxation Office not being a legal entity. 5 The first problem is that the complaint to the Commission was against Comcare, not the Australian Taxation Office. That being the case, there was no basis for the joinder of the Commonwealth of Australia representing the Australian Taxation Office in this proceeding. The Commonwealth of Australia was dismissed from the proceeding with costs reserved. The applicant must pay those costs. 6 The case against Comcare is also misconceived. The original complaint against Comcare arose from the rejection by it of a claim for compensation pursuant to the Safety Rehabilitation and Compensation Act 1988. The basis of the rejection was that, although it was accepted that Mr Dunstan suffered from depression as he claimed, the delegate of Comcare was not satisfied that the condition had arisen out of the circumstances of his employment or that his employment had contributed to that condition. 7 The basis for the allegation of discrimination was that the claim for compensation had been treated less favourably than, in circumstances that are the same or not materially different, Comcare would treat a claim for compensation from someone without the disability. It was also claimed that some of the comments in a medical report supplied by Comcare to explain the decision were offensive, insulting, derogatory and belittling and so amounted to harassment in relation to a disability contrary to s 35 of the Disability and Discrimination Act 1992. 8 In my opinion, it is quite clear that, in carrying out its statutory function of deciding a claim for compensation in the manner in which it did in this case, Comcare could not be guilty of discrimination in the respect alleged by Mr Dunstan. Furthermore, the existence of a full appeal on the merits to the Administrative Appeals Tribunal affords the appropriate remedy. Mr Dunstan availed himself of that remedy and as the result of an appeal to the Court has had some success (Dunstan v Comcare [2006] FCA 1655; (2006) 93 ALD 390). There is no basis upon which providing the medical report to explain rejection of a claim could amount to harassment as claimed. The proceeding against Comcare has no possibility of success and will be summarily dismissed with costs. 9 Mr Dunstan also sought leave to file an amended application. The substance of one amendment was to add a claim of negligence against the Commonwealth. I indicated when the application was made that it would not succeed. The first problem was that no facts were pleaded which could give rise to any duty of care known to the law. The second problem was that there was no relevant link between the matter sought to be raised, on the one hand, and the claim arising under the Human Rights and Equal Opportunity Commission Act 1986, on the other. The only jurisdiction the Court would have to hear such a case would be if it were pendent upon, or associated with, a claim which is properly before the Court. However, the claim against the Commonwealth was, as I have held, baseless. It would be wrong to permit an amendment to raise a simple damages claim as pendent upon, or associated with, a claim that has already been ruled to be misconceived. That is particularly so as the events took place in 1995 and there could well be limitation of action problems. 10 The second proposed amendment was to pursue a claim against the Commission. As the Commission was not before the Court it was necessary to adjourn the case in order that it could appear. When the matter came on again, Mr Dunstan sought leave to make another amendment to the basis of the claim against the Commission. Counsel for the Commission made comprehensive submissions at several levels in support of his opposition to the amendment of the proceeding to join the Commission on the basis put forward. Without attempting to be exhaustive it was submitted that: (1) Insofar as the various potential claims can be understood, they should not be joined to the existing proceeding – it is misconceived and to be dismissed and there is no relevant link with it in any event. (2) All of the claims arise out of the way that the Commission has dealt with complaints by Mr Dunstan but s 48 of the Human Rights and Equal Opportunity Commission Act 1986 provides protection from civil actions. (3) There is no basis upon which the claims made could succeed, both as a matter of substance and because of limitation of action problems. 11 The amendments proposed are not in a form capable of being permitted. It is difficult, indeed almost impossible, to identify proper causes of action properly particularised. There is a mishmash of complaints included in various versions of the proposed amendments, which cross refer to other documents and also deal with other proceedings. Whatever is made of those claims, in my opinion, there is no basis upon which the discretion to permit an amendment to add a party should be exercised as sought. This proceeding is a discrete matter against Comcare arising out of the Human Rights and Equal Opportunity Commission Act 1986. It is neither necessary nor desirable that such a matter ought be complicated by joinder of the Commission concerning these complaints. Furthermore, as is submitted by counsel for the Commission, it is not appropriate to add these claims to a misconceived proceeding which is to be dismissed. 12 If Mr Dunstan has any legally enforceable complaint against the Commission, he will need to pursue that in a proceeding separate from this proceeding. I should not be taken to give any encouragement to that course. The points made by counsel for the Commission indicate that there would be substantial difficulties in bringing any such case. It would certainly be essential that any such case be properly framed in a manner which complies with the Rules of Court. Mr Dunstan has been afforded considerable latitude in the pursuit of his complaints against various public authorities (see, eg Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885). His practical difficulties are understood but persistent failure to comply with the Rules of Court cannot be tolerated from any litigant. The application to amend is refused. No costs are sought by the Commission in relation to that application. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 10 April 2007 The Applicant appeared in person Counsel for the Respondents: Mr G Stretton Solicitor for the First Respondent: Phillips Fox Solicitor for the Second Respondent: Clayton Utz Counsel for the Human Rights and Equal Opportunity Commission: Mr R Clynes Date of Hearing: 6 November 2006, 9 February 2007 Date of Judgment: 10 April 2007