Case: Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885
Outcome: referred to
Mr Dunstan has appealed from a decision of the Administrative Appeals Tribunal given on 28 June 1996. The reasons for the delay in disposing of his appeal are explained in Dunstan v Human Rights and Equal Opportunity Commission [2004] FCA 284 at [11] - [23] . It is not necessary to repeat them. 2 The AAT affirmed a decision of Comcare of 7 June 1995 under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) that (as the AAT described it) Mr Dunstan had "not at any time since February 1987 suffered an ailment that was contributed to in a material degree by his employment with the Australian Taxation Office". In his application for compensation of 26 May 1994, Mr Dunstan claimed to have suffered depression which he first noticed in June 1991 and for which he first sought medical treatment on 11 July 1991. He claimed to have been unfit for work because of his depression only for the periods 11 to 16 July 1991 and 3 to 10 April 1992. He also said in the application that he had then returned to work on normal duties. At first sight, the amount in issue is small. 3 The application for compensation asserted that in August 1982 Mr Dunstan commenced supervision of another employee (the female employee) when working in the Department of Housing and Construction, and a sequence of events thereafter led to him suffering depression. The listed events extended between 1982 and August 1992, becoming much more frequent during 1992. Mr Dunstan claimed that the depression occurred while he was at work at his desk, and resulted from harassment by the female employee who was subordinate to him in his section, particularly after Mr Dunstan and then in April 1990, the female employee moved to the Australian Taxation Office (ATO). 6 In my view, Mr Dunstan had adequate time to prepare for the hearing. The fact that the matter was to be listed for hearing as soon as appropriate had been made clear at directions hearings for some considerable time. Its listing was deferred pending resolution of another matter in which Mr Dunstan was applicant, in which judgment was delivered on 21 December 2005: Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885 ( Dunstan (No 2) ). He was then required to indicate whether he intended to proceed with this application at all, and on 2 May 2006 he said that he wished to do so. The hearing was then listed for 20 July 2006, and he was to file his outline of contentions by 7 July 2006. Over the period of about nine weeks to 7 July 2006, Mr Dunstan was impaired in his preparation by being moved from prison to prison on a number of occasions and the associated disruption to his access to materials. However, I was not persuaded the disruption prevented him from having adequate time to prepare for the hearing, especially having regard to his detailed notice of appeal of 26 July 1996 and the amendment to it filed on 6 September 1996, and to the nature of the application itself. It is an application by way of appeal limited to questions of law: s 44 , Administrative Appeals Tribunal Act 1975 (Cth). 7 I also did not consider the hearing should be adjourned while the prospects of Mr Dunstan being aided by counsel procured under O 80 of the Federal Court Rules were explored. This is not a matter where I would make an order under O 80. The issues are quite confined. The amount involved is small. There is no element of general interest or public interest in its outcome; the determination of the application involves the application of principles to legislation that are frequently traversed. And Mr Dunstan, by his detailed notice of appeal, had identified quite fully and cogently the points he wished to raise. Moreover, the request of Mr Dunstan for an order under O 80 was made only orally at the hearing when it could, and should, have been made much earlier. 8 On 15 June 1995, the then Disability Discrimination Commissioner decided not to inquire into a complaint Mr Dunstan had made against Comcare under the Disability Discrimination Act 1992 (Cth) in respect of its decision subsequently reviewed by the AAT and now the subject of this application. The ground for that decision was that the SRC Act provided a suitable avenue to review Comcare's decision. Mr Dunstan sought to have the decision of 15 June 1995 reviewed by the President of HREOC. The President, by memorandum of 16 August 1995, agreed with that decision but deferred a final decision until the investigation of Mr Dunstan's complaints against the ATO and others for discrimination contrary to the Sex Discrimination Act 1984 (Cth) and the Racial Discrimination Act 1975 (Cth) were completed. The inquiry into those complaints was discontinued on 2 April 1997. The evidence shows that the President did not then finally resolve the matter addressed in his memorandum of 16 August 1995, apparently through oversight, but the President of HREOC has now terminated that inquiry by notice of 10 July 2006. Mr Dunstan's proceedings challenging the decision of 2 April 1997 (and bringing other claims) were dismissed on 21 December 2005: Dunstan (No 2) . Mr Dunstan has indicated that he may now seek judicial review of the decision of the President of HREOC made on 10 July 2006. That is not a reason to defer the hearing and determination of this application. If there is reviewable error in that decision, it can be remedied. Such proceedings, if instituted, will not lead to a decision as to whether the AAT decision now under review by the Court is infected with legal error. That allegation has been made by Mr Dunstan. In my view resolution of the allegation should proceed, and there is no reason why the foreshadowed proceedings against the President of HREOC should delay its resolution. 9 I note also that, at certain points, Mr Dunstan has indicated that he may seek to amend the grounds of the present application against Comcare to allege that its decision was a consequence of fraudulent conduct, and that the AAT decision was either invalid because it was a review of a fraudulently procured decision, or was itself somehow procured through fraudulent conduct. The amendment application was never pursued, including in 2004 when I told Mr Dunstan that any such allegation should be made promptly so that the issue (if permitted to be raised and if requiring evidence) could be heard with the evidence at the hearing of the claims considered in Dunstan (No 2) . It was not pursued at the hearing of this application, although obliquely referred to in written submissions of Mr Dunstan in support of the adjournment. 10 The hearing was, however, adjourned for some three hours to enable Mr Dunstan to review certain documents relevant to the application which he had not brought to Court.