FEDERAL COURT OF AUSTRALIA

Scott v Pedler [2003] FCA 650

ADMINISTRATIVE LAW – social security – decision against applicant for disability support pension later conceded to be wrong – application for special benefit in the meantime – ineligibility for disability support pension a requirement for special benefit – whether requirement to reconsider earlier decision – whether open to officer to request applicant to apply again for disability support pension, to test eligibility – whether obliged to grant special benefit – requirement for satisfaction as to criteria – whether causes of action for breaches of statutory duty, negligence, intentional injury and misfeasance in public office open – whether declaratory and injunctive relief sought available – nature of any duty – whether absolute duty – whether intention to cause injury – whether obligation to increase rate of special benefit when spouse no longer in receipt of pension or benefit

Social Security Act 1991 (Cth) ss 94, 106, 114, 116(1), 729, 740, 744, 746, 1239, 1296, 1138(1)

Administrative Appeals Tribunal Act 1975 (Cth) s 60(1)

Federal Court of Australia Act 1976 (Cth) s 21

Scott v Secretary, Department of Social Security [1999] FCA 1774 (1999) 57 ALD 627, discussed

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, applied

Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11 (2000) 200 CLR 591, cited

Warramunda Village Inc v Pryde [2001] FCA 61 (2001) 105 FCR 437, applied

Scott v Secretary, Department of Social Security [2000] FCA 1241 (2000) 65 ALD 79, discussed

Byrne v Australian Airlines Ltd (1995) 185 CLR 410, considered

Cubillo v Commonwealth (No 2) [2000] FCA 1084 (2000) 103 FCR 1, referred to

X (Minors) v Bedfordshire County Council [1995] 2 AC 633, cited

Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225, cited

Pyrenees Shire Council v Day (1998) 192 CLR 330, cited

Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59 (1999) 200 CLR 1, considered

Sullivan v Moody [2001] HCA 59 (2001) 207 CLR 562, considered

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 (2002) 194 ALR 337, considered

Beaudesert Shire Council v Smith (1996) 120 CLR 145, cited

Northern Territory v Mengel (1995) 185 CLR 307, followed

Sanders v Snell (1998) 196 CLR 329, considered

Tahche v Abboud [2002] VSC 42, followed

Gray v Motor Accident Commission (1998) 196 CLR 1, cited

Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, applied

Fleming, The Law of Torts, 9th edn, Law Book Company, Sydney, 1998

RALPH SCOTT AND SOPHIE SCOTT v OFFICER TONI LEE-ANNE PEDLER, DEPARTMENT OF SOCIAL SECURITY, OFFICER JULIE A WILLIAMS, DEPARTMENT OF SOCIAL SECURITY AND AUTHORISED REVIEW OFFICER ROBERTA CHRYSTAL, DEPARTMENT OF SOCIAL SECURITY

V 652 of 2001

GRAY ACJ

27 JUNE 2003

MELBOURNE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicants pay the respondents’ costs of the proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

The nature of the proceeding

1                     The applicants in this proceeding are a married couple.  By their application, filed on 13 June 2001, they sought relief by way of declarations, injunctions and damages, including aggravated and exemplary damages, as a result of certain decisions made, or the alleged failure to make certain decisions, within the Department of Social Security (“DSS”).  In particular, the applicants claimed in respect of a failure to review a prior refusal to grant the second applicant a disability support pension (“DSP”), a failure to grant the second applicant special benefit and a failure to change the rate of special benefit paid to the first applicant.  The three respondents are officers of DSS who were involved in dealings between DSS and the applicants.  The applicants sought to rely on causes of action in negligence, the Beaudesert principle, trespass, trespass on the case, misfeasance in public office, intentional infliction of personal injury, infringement of rights and unlawful acts.

The facts

2                     On 28 January 1993, the second applicant, Sophie Scott, lodged a claim for DSP, pursuant to s 94 of the Social Security Act 1991 (Cth) (“the Social Security Act”).  On 30 August 1993, an officer of DSS made a decision rejecting the claim.  Ms Scott sought internal review of that decision.  By letter dated 16 November 1993, a regional manager of DSS, Stewart McLeod, informed Ms Scott that the reason formerly advanced for the rejection of her claim, that she had failed to attend an appointment arranged for her with a medical specialist, had been found to be incorrect, because the written request for her to attend the appointment did not cite the correct legislation.  The letter went on to say:

“Upon further consideration of your case, it has however been noted that the Commonwealth Medical Officer (CMO), while not finalising your medical assessment, has assessed your presenting physical conditions as having a nil impairment rating.  This has been arrived at using all of the medical information that you have provided in support of your claim, your medical examination by the CMO and other specialists as requested by the CMO.

Your claim for DSP is therefore rejected on medical grounds due to this nil impairment rating as determined by the CMO.”

The letter also informed Ms Scott that Mr McLeod had referred her case directly to an Authorised Review Officer for review. 

3                     By letter dated 24 November 1993, the Authorised Review Officer, Mr I Peak, notified Ms Scott that he had decided that the decision not to pay her DSP was correct.  The letter expressed a finding by Mr Peak that Ms Scott’s impairment was nil under the Impairment Tables, whereas s 94 of the Social Security Act required that there be an impairment of 20 per cent or more under the Impairment Tables, in order that a person qualify for DSP.

4                     Ms Scott resolved to seek a review of the decision by the Social Security Appeals Tribunal (“the SSAT”).  She did not make application immediately for such a review.  Instead, she set about gathering further medical evidence to support the proposition that she had an impairment of more than 20 per cent under the Impairment Tables.  She corresponded with a number of medical practitioners in various countries about her condition.  She obtained a number of written reports from such practitioners, which she intended to place before the SSAT in support of her claim. 

5                     In the meantime, the first applicant, Ralph Scott, was in receipt of special benefit, pursuant to s 729 of the Social Security Act.  From 30 September 1994, this special benefit was paid at the rate applicable to a married person.  Ms Scott was in receipt of partner allowance under s 771HA of the Social Security Act.  By reason of an amendment to the Social Security Act, from 1 July 1995, Ms Scott ceased to fall within any class of persons entitled to receive partner allowance.  She was notified prior to 30 June 1995 that she would so cease. 

6                     On 30 June 1995, Ms Scott attended at the DSS office at Northcote and completed an application for special benefit, pursuant to s 729 of the Social Security Act.  That application was dealt with by the first respondent, Toni Pedler.  Ms Pedler decided that Ms Scott was not eligible for special benefit, because one of the criteria for the payment of special benefit was that no other social security benefit be payable to her during the relevant period.  Ms Scott was maintaining that she was entitled to DSP.  In conversation with her, Ms Pedler suggested that Ms Scott test her eligibility for DSP at that time, by lodging a new application for it.  Ms Scott refused to do this, maintaining that her application for DSP in 1993 should have been successful.  The reason for the rejection of Ms Scott’s claim for special benefit was expressed in a letter dated 19 July 1995 from Mr McLeod to Ms Scott as follows:

“The reason for this decision is that Special Benefit is only payable if no other reasonable means of support exist, and no other Social Security allowance or pension is payable.  If you are able to look for work, Job Search Allowance would be your correct entitlement.  If you are unfit to look for work because of a medical condition, either Sickness Allowance or Disability Support Pension may be your correct payment type.  As you have declined to test your eligibility for any of these payments, it cannot be determined that you are not entitled to any other Social Security allowance or pension.”

7                     Although in the name of Mr McLeod, the letter was signed by Ms Pedler, who held the requisite delegation to enable her to make the decision, and who actually made it.  The precise timing of events in relation to this letter is uncertain.  Although it is dated 19 July 1995, the applicants claim that they did not receive it until 31 July 1995.  The conversation between Ms Scott and Ms Pedler, to which I have already referred, apparently took place on 26 July.  It was only in that conversation that Ms Scott told Ms Pedler that Ms Scott declined to test her eligibility for DSP by making another application.  There are several possible explanations.  One is that the knowledge of Ms Scott’s reluctance had been communicated to another DSS officer, Wendy Jack, who had assessed the claim and drafted the letter for Ms Pedler’s signature.  Another is that, after the conversation on 26 July, Ms Pedler had added to or altered the already drafted letter, without altering its date.  A third is that Ms Scott’s reluctance to make another claim for DSP had been communicated to Ms Pedler by Kevin Ryan, a social worker who had been making representations to the DSS on behalf of Ms Scott.  Whatever the explanation, it has no particular impact on the outcome of the proceeding.

8                     By letter dated 3 August 1995, Ms Scott sought review of the decision to refuse her special benefit by an Authorised Review Officer.  Under the heading “Grounds for Review”, the letter said:

“Mrs Sophie Scott has been urged by Northcote Department of Social Security (DSS) to:

-           applying for Job Search Allowance and pretending to be looking for
            work;

            Mrs Sophie Scott has proved 70% permanent physical disabilities,
            Northcote DSS knows of this fact, and is unfit to look for work.  Such
            being the case, applying for Job Search Allowance is an offence.

-           applying for Sickness Benefit and automatically making false and
            misleading statements by changing in statements proved 70%
            permanent physical disabilities (against the facts) to temporary
            disabilities;

            In view of these, applying for Sickness Benefit is an offence.

-           applying for the subsequent Disability Support Pension (DSP),
            despite not yet being able to have the DSP Claim being reviewed by
            higher authorities;

            Applying for the subsequent DSP is equal to hiding the detrimental
            and not correct decision, that was made by Australian Government
            Health Service, and is making it impossible for Mrs Scott to obtain
            the review, to which she is entitled.  It is against the Social Security
            Act.

Preparation for submitting the case to higher authorities requires time, and Special Benefit is the only available mean of support.  At present Mrs Scott is being left without any means for living and without any possibilities of buying the vital medicines, and this is inhuman especially towards an ill person.

It is also underlined, that Australia sometimes requires even 20 years time for preparation and reviewing a case.  Mrs Sophie Scott does not need so long.”

(Note that this and other documents emanating from the applicants have been reproduced in their exact words in these reasons for judgment.  I have decided to refrain from indicating errors of spelling or grammar in each instance in which such errors appear.)

9                     By letter dated 11 August 1995, the second respondent, Julie Williams, Section Manager Newstart at the Northcote office of the DSS, informed Ms Scott as follows:

“I have reviewed your case and consider that the decision to reject your claim for special benefit was correct.

You was [sic] not granted special benefit because this is a payment for people who do not have any other payment options.  Staff from this office have noted that you may have an entitlement to disability support pension (DSP).  You have been duly notified of this payment option open to you and have been urged to lodge a claim for DSP at your earliest convenience.  To date this has not occurred.  As you may have an entitlement to another social security payment, special benefit is not payable.

This is why I consider that the decision to reject your claim for special benefit was correct.  However, as per your request, I have forwarded your file to the Authorised Review Officer (ARO) for further consideration.  [Emphasis in original]

As you have not lodged a claim for DSP, you are currently not in receipt of payments from this Department.

Staff at Department of Social Security offices are obligated to ensure that all customers receive their correct entitlements.  However, customers must lodge claims in order to receive their appropriate payment.  Please lodge a claim for DSP at this office as soon as possible.”

10                  On this occasion, the Authorised Review Officer was the third respondent, Roberta Chrystal.  On 21 August 1995, Ms Scott wrote to Ms Chrystal, indicating that, rather than lodging a new application for DSP, she intended to have the earlier decision refusing DSP reviewed by the SSAT.  Ms Scott’s letter said that she was entitled to this option but needed time to prepare the case to the SSAT.  Because of this, she had lodged a claim for special benefit.

11                  By letter dated 23 August 1995, Ms Chrystal wrote to Ms Scott as follows:

“I am writing to you about the decision not to pay you a special benefit.

I am an Authorised Review Officer and I have taken a fresh look at the decision.  I have decided to change the decision as I believe you qualify for special benefit until the outcome of your appeal to the Social Security Appeals Tribunal against the refusal of the Disability Support Pension is known.  This means the review has been successful.

I have told the Northcote Office about my decision.  I have asked that office to arrange for the payment of arrears of special benefit in respect of your claim dated 30 June 1995.  You should talk to that office if you want to know more about your case.

A new decision about your special benefit will be made once the decision on your appeal against the refusal of the Disability Support Pension is made.”

12                  As a consequence, Ms Scott received special benefit, including arrears from 3 July 1995, the first working day after the date on which her claim for special benefit was lodged.  The first payment was made to her on 1 September 1995.  On 25 September 1995, Ms Scott lodged with the SSAT an application, dated 20 September 1995, for review of the decision to reject her claim for DSP.  On 8 January 1996, the SSAT made a decision affirming the decision not to grant DSP to Ms Scott.  Ms Scott applied to the Administrative Appeals Tribunal (“the AAT”) for review of the SSAT decision.  On 9 September 1996, an officer of the DSS conceded that her application to the AAT should succeed and that she was entitled to be paid DSP under s 94 of the Social Security Act, with a provisional commencement date of 28 January 1993.

13                  None of the respondents had any medical qualifications.  None of them conducted any medical examination of Ms Scott.  Nor did Mr McLeod or Mr Peak have any medical qualifications, or conduct any medical examination of Ms Scott. 

The legislation

14                  As it stood at the time of Ms Scott’s original application for DSP, on 28 January 1993, s 94 of the Social Security Act provided relevantly:

“(1)     A person is qualified for disability support pension if:

(a)       the person has a physical, intellectual or psychiatric impairment; and

(b)       the person’s impairment is of 20% or more under the Impairment
            Tables; and

(c)        the person has a continuing inability to work; and

(d)       the person has turned 16; and

(e)        the person either:

            (i)         is an Australian resident at the time when the person first
                        satisfies paragraph (c); or

            (ii)        has 10 years qualifying Australian residence; or

            (iii)       is born outside Australia and, at the time when the person first
                        satisfies paragraph (c) the person:

                        (A)       is not an Australian resident; and

                        (B)       is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident.”

The term “Impairment Tables” was defined in s 23(1) to mean the tables in Sch 1B.  Those tables were extensive and it is unnecessary, for the purposes of this proceeding, to go to them in detail.  Section 94 contained definitions, and conditions with respect to the applicability of, terms used in subs (1), namely “continuing inability to work”, “educational or vocational training” and “work”.  Those provisions are not relevant to the present case.

15                  Section 100(3) gave certain entitlements to a person who, although not qualified for a DSP on the day on which the claim was lodged, became qualified during a three-month period starting immediately after the day on which the claim was lodged.  The provisional commencement day for such a person was the day of qualification, instead of the day of lodging the claim, which was the usual rule under s 100(1).

16                  Section 106 provided as follows:

“(1)     A person who wants to be granted a disability support pension must
            make a proper claim for that pension.

(2)       For the purposes of subsection (1), where:

(a)       a claim for disability support pension is made by or on behalf of a
            person; and

(b)       at the time the claim is made, the claim cannot be granted because the
            person is not qualified for that pension;

the claim is, subject to subsection 100 (3), to be taken not to have been made.”

17                  Section 107 provided that, to be a proper claim, a claim must be made in writing and be in accordance with a form approved by the Secretary.  Section 108 provided that, to be a proper claim, a claim must be lodged at an office of the DSS or at a place approved, or with a person approved, for the purpose by the Secretary.  Section 113 provided that the Secretary must, in accordance with the Social Security Act, determine the claim.  By s 114, the Secretary was required to determine that the claim be granted if the Secretary were satisfied
that the person was qualified for a DSP and the pension was payable.  Section 116(1) provided:

“The Secretary must direct that a claimant for disability support pension be examined by a medical practitioner or practitioners unless:

            (a)        it is manifest that:

                        (i)         the claimant has a physical, intellectual or psychiatric
                                    impairment of 20% or more under the Impairment
                                    Tables; and

                        (ii)        the claimant has a continuing inability to work; or

            (b)        it is manifest that the claimant is permanently blind; or

            (c)        the claimant’s rate of disability support pension, if granted,
                        would be nil; or

            (d)        the claimant does not satisfy the requirements of paragraph 94
                        (1) (d) or section 109 (age requirements) or paragraph 94 (1)
                        (f) or section 110 (residence requirements).”

18                  Section 116(3) required the medical practitioner who had examined the claimant because of a direction under subs (1) to give a certificate stating the practitioner’s opinion as to whether the claimant had an impairment or was permanently blind and, if so, the effect of the impairment on the claimant’s ability to work.  By subs (4), the medical practitioner, if required to do so by the Secretary, must include in the certificate the practitioner’s opinion as to the percentage of the person’s impairment (if any) under the Impairment Tables.  By s 118, a DSP became payable to a person on the first day on which the person was qualified for the pension and no provision of the Act made the pension not payable to the person.

19                  On 30 June 1995, when Ms Scott applied for special benefit, s 729 of the Social Security Act provided, so far as is relevant to this proceeding:

“(1)     A person is qualified for a special benefit for a period if the Secretary
            determines, in accordance with subsection (2), that a special benefit
            should be granted to the person for the period.

(2)       The Secretary may, in his or her discretion, determine that a special
            benefit should be granted to a person for a period if:

(a)       no social security pension is payable to the person during the period;
            and

(b)       no other social security benefit is payable to the person for the
period”.

Other provisions of the section excluded persons with certain entitlements, either wholly or in certain circumstances.  They are not relevant to the present proceeding.  A definition of the phrase “social security pension” appeared in s 23(1).  It contained a list of eleven pensions, supplements or allowances, including, in par (b) of the definition, “a disability support pension”.  The definition of “social security benefit”, also in s 23(1), contained a list of allowances.

20                  Section 733 of the Social Security Act imposed an assets test before special benefit was payable.  The level of assets at which special benefit ceased to be payable depended upon whether the person was not a member of a couple, partnered with a partner getting neither pension nor benefit, or partnered with a partner getting pension or benefit.

21                  Section 740(1) provided that a person wanting to be granted a special benefit must make a proper claim for that benefit.  By s 741, to be a proper claim, a claim was required to be made in writing and to be in accordance with a form approved by the Secretary.  Section 742(1) provided that, to be a proper claim, a claim was required to be lodged at an office of the DSS, at a place approved for the purpose by the Secretary, or with a person approved for the purpose by the Secretary.  Section 743 provided that the Secretary must, in accordance with the Social Security Act, determine the claim.  Section 744 provided that the Secretary was to determine that the claim was to be granted if the Secretary was satisfied that the person was qualified for a special benefit and the benefit was payable.  By s 746, the rate of a person’s special benefit was the fortnightly rate determined by the Secretary “in his or her discretion”, but was not to exceed the rate at which job search allowance, youth training allowance or newstart allowance would be payable to a person if the person were qualified for such an allowance and that allowance were payable to the person.  By s 748, special benefit became payable to a person on the first day on which the person was qualified for the benefit and no provision of the Social Security Act made the benefit not payable to the person.

22                  Most of the decision-making powers contained in the Social Security Act were conferred on “the Secretary”.  Section 23(1) defined “Secretary” to mean, in most cases, and in all cases relevant to the present proceeding, the Secretary to the DSS.  By s 1299, the Secretary was empowered, by signed instrument, to delegate to an officer all or any of the powers of the Secretary under the Social Security Act, with some exceptions not material to the present proceeding. The term“officer” was defined in s 23(1) to mean “a person performing duties, or exercising powers or functions under or in relation to this Act”.

23                  Chapter 6 of the Social Security Act dealt with review of decisions.  Section 1239(1)(a) empowered the Secretary to review a decision of an officer under the Social Security Act if satisfied that there was sufficient reason to review the decision.  By subs (3), this power could be exercised even if an application had been made to the SSAT or the AAT for review of the decision.  By s 1239(4), the Secretary was empowered to affirm the decision, vary the decision, or set the decision aside and substitute a new decision.

24                  Section 1240 entitled a person affected by a decision of an officer under the Social Security Act to apply to the Secretary for review of the decision.  If such an application were made, the review was conducted by the Secretary or an Authorised Review Officer.  By s 1243, in the case of an application for review of a decision, the Secretary or the Authorised Review Officer was required to affirm the decision, vary the decision, or set the decision aside and substitute a new decision.  By s 1301(1), the Secretary was empowered to authorise an officer to perform duties as an Authorised Review Officer for the purposes of the Act.

25                  Part 6.2 of the Social Security Act made provision for review of decisions by the SSAT.  The entitlement to apply for a review was limited by s 1247(1) to cases in which a decision had been reviewed by the Secretary or an Authorised Review Officer and had been affirmed, varied or set aside.  If a decision had been reviewed by the SSAT and had been affirmed, varied or set aside, application could be made to the AAT, pursuant to s 1283.  Section 1338(1), provided that a member of the SSAT had, in the performance of his or her duties as a member, the same protection and immunity as a member of the AAT.  Section 60(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) provided that a member of the AAT had, in the performance of his or her duties as a member, the same protection and immunity as a justice of the High Court.

26                  Finally, reference should be made to s 1296 of the Social Security Act, which provides:

“In administering this Act, the Secretary is to have regard to:

(a)       the desirability of achieving the following results:

            (i)         the ready availability to members of the public of advice and
            information services relating to income support;

            (ii)        the ready availability of publications containing clear
                        statements about income support entitlements and procedural
                        requirements;

            (iii)       the delivery of services under the Act in a fair, courteous,
                        prompt and cost-efficient manner;

            (iv)       a process of monitoring and evaluating delivery of programs
                        with an emphasis on the impact of programs on social security
                        recipients;

            (v)        the establishment of procedures to ensure that abuses of the
                        social security system are minimised; and

(b)       the special needs of disadvantaged groups in the community; and

(c)        the need to be responsive to Aboriginality and to cultural and
            linguistic diversity; and

(d)       the importance of the systems of review of decisions under the Act;
            and

(e)        the need to apply government policy, in accordance with the law and
            with due regard to relevant decisions of the Administrative Appeals
            Tribunal and the Social Security Appeals Tribunal.”

The applicants’ claims

27                  In the first place, the applicants relied upon an alleged duty on the part of the respondents to Ms Scott, under statute law, common law “or otherwise” to decide her claims under the Social Security Act with care and with due expedition.  There was also an allegation of a duty of care, under statute, common law “or otherwise” owed by the respondents to Mr Scott.

28                  The statement of claim (as amended on 17 August 2001) raised issues concerning the making of what was said to be an assessment of Ms Scott’s pain by Mr Peak, who had no medical qualifications, had not conducted a medical examination of Ms Scott and disregarded several separate losses of function on the part of Ms Scott, not caused by pain. It is said that Mr Peak “rejected” Ms Scott’s “physical impairment” and “professional medical opinion” in relation to that impairment.  It is alleged that the respondents knew or should have known that DSP was payable to Ms Scott and should have been granted to her from 28 January 1993.  For the purposes of this proceeding, I accept, as was later conceded in the course of the AAT proceeding, that Ms Scott was entitled to DSP from 28 January 1993.  This acceptance does not require me to make any specific findings of fact as to the extent of Ms Scott’s impairment at that date.  It requires only that it be acknowledged that it was common ground in this proceeding that, particularly in July and August 1995, Ms Scott had not been granted DSP, notwithstanding her entitlement to it. 

29                  The statement of claim alleged that the respondents knew or should have known that a DSP was payable and should have been granted to Ms Scott from 28 January 1993.  The rejection and “wrong continuation” of the rejection of this claim until 9 September 1996 was alleged to have been in breach of ss 94, 106, 113, 116, 1296 and 1239 of the Social Security Act, as well as Sch 1B.  It was also alleged to have been in breach of “the duty of care”, in breach of “the common law” and to have been otherwise unlawful.

30                  The rejection of, or failure to grant, Ms Scott’s application for special benefit was alleged to have been in breach of ss 729, 743 and 1296 of the Social Security Act, in breach of the purpose of the Social Security Act, in breach of a duty to take care, “in breach of the common law”, “in breach of fairness”, and to have been otherwise unlawful.

31                  It was then alleged that the respondents knew or should have known that:

“(I)      the second applicant:

a)         must not claim a job search allowance (“JSA”) or a sickness benefit
            (“SickB”);

b)         did not need to make a second DSP claim to be granted a DSP;

c)         did not need to make any additional claims for the respondents to
            determine, under s.729 of the Act or otherwise, the payability of a
            DSP and pensions/benefits to the second applicant;

d)         could not, because of the unpreparedness and huge detriment, make a
            second DSP claim or appeal to the SSAT at that time;

e)         was entitled to the payment of a sufficient livelihood, i.e. of a SB, when
preparing the matter of the DSP rejection for further consideration; AND

(II)       they must consider the grounds for claiming a SB stated by the second applicant in her claim for a SB.”

32                  The paragraphs of the statement of claim immediately following these allegations should be quoted:

“19.     The first respondent knew on 19 July 1995 that under s.729 of the Act she should have determined the payability of a DSP and the payability of pensions and benefits to the second applicant without requiring claims for these other pensions/benefits and that she must have considered the grounds for claiming a SB stated by the second applicant in her claim for a SB.

20.       The first respondent knew on 19 July 1995 that the second applicant had been entitled to a DSP from 28 January 1993 and that the second applicant did not need to make a second DSP claim to be granted a DSP.

21.       On 19 July 1995 and on 26 July 1995 the first respondent acted negligently, in breach of the Beaudesert principle, committed trespass/ trespass on the case, committed misfeasance in the public office, intentionally inflicted personal injury, infringed absolute rights and/or acted otherwise contrary to law and unlawfully in that she:

            (a)        knowingly acting in excess of power under s.729(2)(a) and (b) of the Act and knowingly acting against the usual practice, decided that she would not attempt to determine the payability of a DSP and pensions and benefits to the second applicant without a claim for a JSA or a SickB or a second DSP claim from the second applicant;

            (b)        knowingly acting in breach of s.743 of the Act and acting in breach of s.106 of the Act and in breach of procedural fairness, acted directly  against the second applicant and with the involvement of a foreseeable            risk of harm, by requesting a second DSP claim from the unprepared second applicant who asked for time to enable the preparation;

            (c)        knowingly acting in breach of s.743 of the Act, acting in breach of ss.1296 and 1239 of the Act, acted directly against the second applicant and with the involvement of a foreseeable risk of harm, by not reconsidering the payability of a DSP (especially by not reconsidering the existence of the dangerous impairment of the pulmonaro-cardio-vascular system) to the second applicant or by not requesting that reconsideration from another officer of the DSS where such further consideration was suggested by the second applicant;

            (d)        acted directly against the second applicant and with the involvement of a foreseeable risk of harm, by requesting that the second applicant make a claim for a JSA or for a SickB, where the first respondent knew/should have known that those acts constituted to the second applicant the offence against s.1350 of the Act;

            (e)        in breach of ss.94, 113 and 1296 of the Act failed to grant a DSP to the second applicant or failed to transfer the second applicant’s DSP claim to another officer for the purpose of reconsidering and granting a DSP to the second applicant;

            (f)         in breach of the purpose of a SB and in breach of procedural fairness, acted directly against the applicants and with the involvement of a foreseeable harm (i) by not granting a SB and any livelihood to the second applicant and therefore by not granting sufficient livelihood to the applicants, and (ii) by hindering the applicants in the preparation of the DSP matter for further consideration;

            (g)        wilfully and without reasonable excuse was killing the applicants with starvation and was hindering the preparation of medical evidence by the applicants;

            (h)        used the unreasonably lengthy period of time for making and
communicating her decision to the second applicant, especially that she constructively refused to determine the payability of a DSP and of other pensions and benefits to the second applicant at all and constructively refused to determine under s.729 of the Act the second applicant’s claim for the SB at all and that she was aware of the suffering of hardship by the applicants who awaited her decision.”

33                  Similar causes of action were invoked against Ms Williams, on the basis that, on 11 August 1995, she approved the decisions of Ms Pedler and assessed the physical impairment of Ms Scott as being less than 20 per cent under the Impairment Tables.  Again, the allegation was made that the second and third respondents had no medical qualifications and were not medical officers or practitioners and had never made a medical examination of Ms Scott.  Similar causes of action were also pleaded against Ms Chrystal in that, on and after 10 August 1995, she:

“(a)     wilfully acting in breach of s.94 + Sch.1B of the Act generally acts
            with the involvement of a foreseeable risk of harm and directly
            against her clients, and acted directly against the second applicant
            and with the involvement of a foreseeable risk of harm, by approving
            the decision of officer I .Peak stated in para.7 supra and by assessing
            the second applicant’s physical impairment (especially the dangerous
            pulmonaro-cardio-vascular impairment) as being 0% under the
            Impairment Tables;

(b)       wilfully acted in breach of s.94 + Sch.1B of the Act, acted directly
            against the second applicant and with the involvement of a
            foreseeable risk of harm, by disregarding any impairment of function
            (especially by disregarding the dangerous pulmonaro-cardio-vascular
            impairment) of the second applicant and assessing pain only;

(c)        knowingly acting in breach of s.94 + Sch.1B of the Act, acted directly
            against the second applicant and with the involvement of a
            foreseeable risk of harm, by not granting a DSP to the second
            applicant;

(d)       knowingly acting in breach of s.729 of the Act, acting in breach of
            s.1296 of the Act and in breach of procedural fairness, acted directly
            against the applicants and with the involvement of a foreseeable risk
            of harm (i) by not granting SB and any livelihood to the second
            applicant and by not granting sufficient livelihood to the applicants on
            10 August 1995 but only two weeks later, and (ii) by hindering the
            applicants in the preparation of the DSP matter for further
            consideration;

(e)        wilfully and without reasonable excuse was killing the applicants
            with starvation and was hindering the preparation of medical
            evidence by the applicants.”

34                  Next, it was alleged that, between 30 June 1995 and 1 September 1995, the respondents unreasonably and in breach of s 763 of the Social Security Act, failed to increase, or to direct another officer of the DSS to increase, Mr Scott’s rate of special benefit.

35                  The ensuing paragraphs of the statement of claim were as follows:

“27.     The common motive of all three respondents was:

            (a)        that the 1993 DSP claim of the second applicant was to
remain rejected;                                                                  AND

            (b)        that the second applicant was to be forced, by means of starvation, to make a second DSP claim while being unprepared to do so;                      AND

            (c)       that the second DSP claim was to be rejected by the DSS;
                                                                                                         AND

            (d)       the DSS would gain financially by not paying a DSP to the second applicant.

28.       All three respondents, who were and are the officers of the governmental beneficial organisation namely of the DSS, committed the oppressive, arbitrary and unconstitutional actions by:

            #          denying any livelihood to the second applicant for 2 months;

            #          denying sufficient livelihood to the applicants for 2 months;

            #          not changing the deadly “medical” misdiagnoses re the second applicant for almost 4 years;

            #          hindering the preparation of medical evidence by the applicants and therefore hindering the applicants’ attempts to protect the second applicant’s life;

            #          wilful and continuous breach of the beneficial Act.

            The applicants claim the exemplary damages.

29.       By reason of the aforesaid decisions and conduct of the respondents, the applicants sustained injuries and incurred loss and damage:

PARTICULARS

            (I)        general damages:

            *          injury to every cell, tissue and organ;

            *          deterioration of the existing medical conditions;

            *          diminuition of the existing physical capacity and the shortening of the life expectation;

            *          pain and suffering;

            *          emotional distress;

            (II)       special damages:

            *          uncompensated financial loss caused by the provision of medical evidence confirming the already existing medical evidence: $ 1151.36;

            *          uncompensated financial loss caused by securing the appeal to the Administrative Appeals Tribunal: $  389.60;

            (III)      aggravated damages:

            *          applicants suffered humiliation and indignity by being forced, by starvation, to beg the respondents and various institutions for help and for money to survive;

            *          applicants suffered anxiety and horror knowing that they were slowly and painfully dying and there was no help around and that, in the alternative, the second applicant had to approve the lethal misdiagnoses of the DSS officers;

            (IV)      exemplary damages:

            *          the govermental officers committed and generally commit the wilful, outrageous, high-handed, reprehensible, oppressive, cruel and malicious acts in contumelious disregard of welfare and rights of the applicants and of other disabled claimants;

            *          the Court should deter the respondents and others from similar
                        behaviour.

30.       It is common that the officers of the DSS cut the eligible recipients off payments thus causing injury, stress, hardship and humiliation to the eligible recipients, and the eligible recipients often do not go through the appeal process because, inter alia, they feel powerless to fight the decisions of the Government.

31.       Unless deterred by this Honourable Court by orders declaring the invalidity of the set forth ultra vires decisions and conduct of the respondents, by orders restraining the respondents from acting contrary to law, and by orders to pay damages with inclusion of aggravated and exemplary damages, the respondents and other officers of the DSS will not be restrained from contumeliously, cruelly and oppressively infringing the absolute rights and therefore harming the most infirm, disabled and powerless members of the Australian society.”

36                  In their defence, the respondents pleaded that the available medical evidence supported the determination that Ms Scott did not have an impairment of 20 per cent or more as required under the Impairment Tables and referred to the examinations and reports of specified doctors as supporting this assessment.  This prompted the applicants, in their reply, to plead a number of allegations of a specific nature as to the content of the medical reports that Ms Scott had submitted, and had available to her, and as to the inadequacy of the examinations and reports of the medical practitioners to whom she had been referred by the DSS.  It is unnecessary to descend to the detail of these matters.  As I have said, it is enough to note that it was subsequently conceded that Ms Scott was entitled to DSP from 28 January 1993.

37                  On the question whether s 729 of the Social Security Act required Ms Scott to test her eligibility for other forms of social security pension or social security benefit, in order to make out her claim for special benefit, the applicants in their reply said:

“(A)     ‘to test eligibility’ means to lodge a claim for a Job Search
Allowance, Sickness Allowance or for a DSP;

(B)       it is the regular practice of the officers of the DSS, known to the first
respondent on 19 July 1995, that the lodgment of claims for pensions/benefits is not required, under s.729(2) of the Act, for the
purpose of the determination of payability of pensions/benefits to the person claiming a Special Benefit;

(C)       under s.729(2) of the Act, the lodgment of claims for pensions and
benefits is not required for the purpose of determining the payability of these pensions and benefits;

(D)       the respondents were informed by the second applicant in July –
August 1995 that the second applicant must not lodge a claim for a Job Search Allowance and for a Sickness Allowance and did not want to lodge a second DSP claim without being able to attach to it medical evidence and that in any event the second applicant had been entitled to the DSP since 1993 and should have been allowed to appeal to the SSAT against the rejection of the 1993 DSP claim and to prepare medical evidence for that appeal;

(E)       at all material times the first and the second respondent refrained
from testing the payability of a DSP to the second applicant, which was the duty under ss.729, 114 and 1239 of the Act under the common law or otherwise, on the claim for DSP lodged in 1993;

(F)       a DSP was payable to the second applicant at all relevant times;

(G)      the first respondent did not see the files of the DSS that contained the
information that since 1993 a DSP had been payable to the second
applicant.”

38                  The applicants also said that s 729 required the respondents to determine the payability of a DSP to Ms Scott.  The respondents were under a duty to grant a DSP, or to send Ms Scott’s file to another officer who could have and would have granted a DSP to Ms Scott. 

39                  In their reply, the applicants also expanded on the allegation that the rate of special benefit for Mr Scott should have been increased.  It was said that the rate that he received between 30 June 1995 and 1 September 1995 was less than that received by a single person, Ms Scott was not in receipt of special benefit or DSP and the respondents were aware that the applicants had no sufficient means of support in that period.

40                  On 4 July 2002, I granted leave to the applicants to amend their application by adding as respondents Mr McLeod and Mr Peak and to amend their statement of claim so as to plead their case against those respondents.  Subsequently, the applicants requested assistance from those acting on behalf of the respondents in effecting service on the added respondents.  Not surprisingly, such assistance was not forthcoming.  The respondents were under no duty to provide it.  Rather than attempt now to locate and serve process on Mr McLeod and Mr Peak, the applicants opted to proceed without exercising the leave granted to them.

41                  The range of possible causes of action raised by the applicants’ pleadings can be divided into two categories for the sake of convenience.  The first category is causes of action depending upon breaches of duties said to be owed by the respondents.  The second category is causes of action involving the intentional infliction of harm on the applicants.  It is appropriate to deal separately with these two categories, before considering possible questions of damages.

Causes of action involving breach of duty

Specific statutory provisions: declarations and injunctions

42                  Part of the relief the applicants seek is declaratory or injunctive relief, based on specific duties alleged to exist under the Social Security Act.  In particular, they allege a duty to grant DSP and special benefit to those entitled to them and applying for them.  In fact, the duty imposed on the Secretary (and in consequence on any delegate of the Secretary) to determine that a claim for DSP be granted was conditioned on the Secretary (or the delegate) being “satisfied” that a person was qualified for DSP and that DSP was payable.  See s 114 of the Social Security Act.  Similarly, the duty imposed by s 744 was to determine that a claim for special benefit was to be granted if the Secretary (or the delegate) was “satisfied” that the person was qualified for a special benefit and the benefit was payable.  In each case, a grant of the pension or benefit could not be made without the existence of the requisite satisfaction.  Further, the Secretary or a delegate could only reach a state of satisfaction about the required matters if a proper claim had been made.  See s 106 in the case of DSP and s 740 in the case of special benefit.

43                  The clear legislative intention of these provisions is that the process of granting DSP and special benefit involves administrative decision-making.  One reason for the adoption of the achievement of the requisite satisfaction by the decision-maker as the condition for the payment of the pension or benefit concerned, rather than the conferral on the decision-maker of a power to determine entitlement, may be that an administrative decision-maker cannot exercise judicial power.  The implied separation of powers in the Constitution means that the power to determine entitlements by making binding determinations of facts, and applying the law to those facts, cannot be conferred on administrative decision-makers.

44                  The adoption of an administrative decision-making process carries with it the assumption that there will be occasions when minds might differ as to whether the requisite state of satisfaction has been reached.  The legislature may decide to make provision for merits review, so that another mind, or other minds, can be applied to the same issues, and a claimant may have the benefit of a more favourable outcome if another decision-maker is satisfied as required.  The Social Security Act makes available three successive levels of merits review, by way of an Authorised Review Officer, the SSAT and the AAT.  I know of no other area of administrative decision-making in Australia in which so many levels of merits review are available.  There might also be occasions when the failure of an administrative decision-maker to reach the requisite state of satisfaction arises from demonstrable legal or jurisdictional error on the part of the decision-maker.  In such cases, review by means of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) is available.  In the light of the scheme of administrative decision-making adopted under the Social Security Act, there are also powerful reasons for holding that there is a legislative intention that the scheme should not be bypassed by the use of remedies such as declarations and injunctions.

45                  It follows that a person seeking either DSP or special benefit could not do so by suing in a court for a declaration of entitlement or an injunction compelling payment.  The court would not be able to make such orders, because it could not substitute its own views as to entitlements for the statutory requirement of satisfaction by the Secretary or the delegate.  It is possible to envisage cases in which the evidence could establish that the Secretary or a delegate had in fact reached a state of satisfaction.  In such a case, the court might make a declaration of entitlement.  This appears to have been the basis on which Heerey J made a declaration in favour of Mr Scott in an appeal from a decision of the AAT, affirming a decision to reject a claim for DSP by Mr Scott.  The only issue appears to have been whether payments of DSP should have been made from an earlier date than they were, on the basis that Mr Scott had made a proper claim on the earlier date.  Once this issue was determined in Mr Scott’s favour, his Honour found that there was no other issue to be determined, and a declaration of entitlement from the earlier date was appropriate.  See Scott v Secretary, Department of Social Security [1999] FCA 1774 (1999) 57 ALD 627.  A declaration that the Secretary or delegate had in fact reached a state of satisfaction is not the kind of declaration sought in the present case.  A court could not, by injunction, compel the Secretary or delegate to reach the required state of satisfaction, but only to consider a proper claim, if that had not been done.  Again, that is not the order sought in the present case. 

46                  The applicants have sought to overcome these obstacles by refraining from seeking declarations and injunctions in relation to particular decisions, or even in respect of the failure to make particular decisions in respect of the applicants.  The four declarations sought are in terms divorced from any specific instances.  Thus, the applicants sought declarations that: the request of a person claiming special benefit for time to prepare a case of rejection of the grant of another pension or benefit constitutes good reason for granting to that person the required time and the special benefit; the assessment of impairment under the Impairment Tables by an officer of the DSS who is not a medical officer and has not medically examined the claimant is ultra vires; an officer of the DSS is required to attempt to determine the payability of pensions and benefits to a person claiming a special benefit without the  requirement of claims for those pensions and benefits; and an officer of the DSS is required to become familiar with the existing evidence of the payability of pensions and benefits to the person claiming a special benefit without the requirement of claims for those pensions and benefits.  The applicants also sought a mandatory injunction, directed to the first and second respondents, requiring them to become familiar with the existing evidence and to consider the payability of pensions and benefits under s 729(2)(a) and (b) of the Social Security Act, without the requirement of claims for these pensions and benefits from the person claiming a special benefit.  They also sought an injunction restraining the second and third respondents from assessing the impairment under the Impairment Tables of a person claiming a DSP. 

47                  The claims for relief in this form are plainly unsustainable.  The declarations sought are not declarations of right in accordance with s 21 of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”).  As Mason CJ, Dawson, Toohey and Gaudron JJ said in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582, the jurisdiction of a court to grant declaratory relief:

“is confined by the considerations which mark out the boundaries of judicial power.  Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions [See In re Judiciary and Navigation Acts (1921) 29 CLR 257].  The person seeking relief must have ‘a real interest’ [Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421 at 437 per Gibbs J] and relief will not be granted if the question ‘is purely hypothetical’, if relief is ‘claimed in relation to circumstances that [have] not occurred and might never happen’ [University of New South Wales v Moorhouse (1975) 133 CLR 1 at 10 per Gibbs J] or if ‘the Court’s declaration will produce no foreseeable consequences for the parties’ [Gardiner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 at 188 per Mason J; see also 189 per Aickin J; 18 ALR 55 at 69, 71 respectively].”

See also Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11 (2000) 200 CLR 591 at 613 per Gaudron J.  A declaration that a person has engaged in a contravention of a statutory provision will not be granted unless some consequence in law flows from it.  See Warramunda Village Inc v Pryde [2001] FCA 61 (2001) 105 FCR 437 at [8].  A declaration is not granted to express general condemnation of a person’s conduct.  Nor is it granted to express a particular interpretation of a legislative provision, unrelated to any facts.  Those would not be proper exercises of the judicial power of the Commonwealth.

48                  The declarations sought in the present case obviously have their basis in the dealings, or alleged dealings, of the applicants with the respondents.  To the extent to which they are designed to embody condemnation by the Court of the conduct of the respondents and other officers of the DSS, they could not be made, because nothing flows from them in the way of legal rights and obligations.  They will produce no foreseeable consequences for the parties.  To the extent to which they seek to deal with the future conduct of the respondents, the declarations sought are hypothetical and are about facts that have not yet occurred and may never occur.  To the extent to which the Court is invited to set out in a declaration a view of the meaning of a statutory provision, divorced from any factual circumstances, the making of them would not constitute an exercise of the judicial power.

49                  In any event, the declarations sought are without foundation in law.  It cannot be said that an officer of the DSS was required in every case to be satisfied that a claimant for special benefit was entitled to it, and the benefit was payable, on the basis that time was required to prepare a case in relation to the refusal to grant a pension or benefit under the Social Security Act.  Even if, in some cases, the fact that a claimant for special benefit was seeking to overturn a previous decision in relation to a pension or benefit were relevant to the grant (as Ms Chrystal concluded in the present case), it could not be elevated to the status of a ground in every case.  Section 116(1) of the Social Security Act empowered a delegate of the Secretary who was not a medical officer and had not medically examined a claimant for DSP to assess impairment.  The process of deciding whether to direct that the claimant be examined by a medical practitioner or practitioners required the delegate to decide whether certain types of impairment (including physical, intellectual or psychiatric impairment of 20 per cent or more under the Impairment Tables) were “manifest”.  This could not be done without the delegate making an assessment.  For reasons I set out below, it was open to an officer of the DSS holding the requisite delegation to request that a claimant for special benefit test his or her eligibility for a pension or another kind of benefit by lodging an application, or a further application, for that pension or benefit.  There was therefore no requirement that an officer determine, or attempt to determine, the payability of a pension or benefit to a claimant for special benefit without requesting the claimant to make an application.  Nor was there a requirement to reconsider earlier claims for pensions or benefits, to see if the “existing evidence” gave rise to satisfaction on the part of the officer that there was no entitlement to a pension or benefit.  An officer is entitled to accept that other claims have been dealt with appropriately by the officers who dealt with them.

50                  Even if there were power to make the declarations sought, for the reasons I have given, in the exercise of my discretion, they would not be made.

51                  Nor would I grant the injunctions sought.  Many of the considerations that dictate that the declarations sought should not be made are also relevant to injunctions.  The terms of the injunctions sought are directed to future events that might never occur.  They relate to hypothetical facts.  Generally, for an injunction to be granted, it is necessary for there to be evidence of threats or intention to repeat the conduct complained of, or to fail to take specified action required by law.  There is no such evidence in the present case.

52                  As is the case in relation to declarations, there is no basis for the injunctions sought.  For reasons that I give below, in appropriate cases, it is open to officers of the DSS in dealing with claims for special benefit to request the claimants to test their eligibility for other pensions or benefits by lodging claims for them.  The applicants are therefore not entitled to the mandatory injunction sought.  If the second and third respondents hold the relevant delegations from the Secretary, they are required to deal with claims for DSP in accordance with the provisions of the Social Security Act.  As they stood at the relevant times, those provisions required them to make assessments under the Impairment Tables, at least for the purpose of determining whether certain types of impairment were “manifest”.  See s 116(1)(a)(i), quoted above.  For that reason, if for no other, the applicants would not be entitled to a prohibitory injunction in the terms sought.

53                  In any event, for the reasons I have given, I would refuse to grant the injunctions on discretionary grounds.

Breach of statutory duty

54                  So far as the applicants invoke a cause of action for damages for breach of statutory duty, their claim must also fail.  In Scott v Secretary, Department of Social Security [2000] FCA 1241 (2000) 65 ALD 79, the Full Court dealt with the question whether the Social Security Act is to be interpreted as indicating an intention to confer a private right of action for damages.  The Full Court was dealing with an appeal by the applicants in the present case from a judgment of Heerey J in respect of an application brought by the applicants against the Secretary, relating substantially to events that are the subject of the present case.  The judgment from which the applicants appealed is to be found in Scott v Secretary, Department of Social Security [1999] FCA 1774 (1999) 57 ALD 627.  In the appeal judgment, at [17] – [19], Beaumont and French JJ, with whom Finkelstein J agreed on this point, referred to the principles expressed by Brennan CJ, Dawson and Toohey JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 424, that a cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons:

“is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection.”

Beaumont and French JJ said:

“We agree with the trial Judge that the Act is not to be interpreted as indicating an intention to confer a private right of action for a breach of any of its provisions now in question, given especially the existence in the legislation of particular mechanisms for the review of decisions made within the Department.”

55                  I am bound by that judgment to hold that a claim for damages for breach of statutory duty cannot be maintained in the present case.  Even if I were not so bound, I should take the view that the claim cannot succeed in the present case.  The relevant considerations are similar to those I discuss in some detail in relation to the question whether the Social Security Act is inconsistent with the existence of a common law duty of care.  I also note that, in their final written submissions, the applicants stated that they were not claiming a private right of action for breach of statutory duty.

Common law duty of care

56                  In Cubillo v Commonwealth (No 2) [2000] FCA 1084 (2000) 103 FCR 1 at [1205], O’Loughlin J said:

“The breach of a public law right by itself gives rise to no claim for damages; a damages claim must be based on a private cause of action.”

The difficult questions arising from attempts to impose common law duties of care on those performing statutory functions have been discussed in numerous cases in recent years.  See X (Minors) v Bedfordshire County Council [1995] 2 AC 633, Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225, Pyrenees Shire Council v Day (1998) 192 CLR 330, Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59 (1999) 200 CLR 1, Sullivan v Moody [2001] HCA 59 (2001) 207 CLR 562 and Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 (2002) 194 ALR 337.

57                  In Crimmins at [82], McHugh J, with whom Gleeson CJ agreed, said:

“Public law concepts of duty and private law notions of duty are informed by differing rationales.  On the current state of the authorities, the negligent exercise of a statutory power is not immune from liability simply because it was within power, nor is it actionable in negligence simply because it is ultra vires.”

58                  In Sullivan at [60], Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ said:

“The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff.  People may be subject to a number of duties, at least provided they are not irreconcilable.  A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person.  But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists.  Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.”

59                  In Graham Barclay at [145] – [147], Gummow and Hayne JJ with whom Gaudron J agreed, said:

“the co-existence of knowledge of a risk of harm and power to avert or to minimise that harm does not, without more, give rise to a duty of care at common law.  The totality of the relationship between the parties, not merely the foresight and capacity to act on the part of one of them, is the proper basis upon which a duty of care may be recognised.  Were it otherwise, any recipient of statutory powers to license, supervise or compel conduct in a given field, would, upon gaining foresight of some relevant risk, owe a duty of care to those ultimately threatened by that risk to act to prevent or minimise it.  As will appear, the common law should be particularly hesitant to recognise such a duty where the relevant authority is empowered to regulate conduct relating to or impacting on a risk-laden field of endeavour which is populated by self-interested commercial actors who themselves possess some power to avert those risks.

The existence or otherwise of a common law duty of care allegedly owed by a statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime.  The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence.

Where the question posed above is answered in the affirmative, the common law imposes a duty in tort which operates alongside the rights, duties and liabilities created by statute.  In some instances, a statutory regime may itself, in express terms or by necessary implication, exclude the concurrent operation of a duty at common law.”

60                  On the basis of these authorities, it is apparent that two matters need to be considered before it can be held that the respondents, or any of them, owed a duty of care to the applicants, in respect of the exercise or non-exercise of the respondents’ statutory functions.  The first matter is the relationship between the applicants and the respondents.  The enquiry must be as to whether, on ordinary common law principles, that relationship was such as to give rise to a duty of care.  The second area of enquiry concerns the statutory regime pursuant to which the respondents were obliged to exercise their functions.  If that statutory regime discloses a legislative intention to exclude a common law duty of care, either by expressly excluding such a duty or by being of its nature incompatible with such a duty, then there can be no common law duty.

61                  One further reference to authority is necessary at this stage.  As I have said, in Scott v Secretary, Department of Social Security [2000] FCA 1241 (2000) 65 ALD 79, the Full Court dealt with the appeal by the applicants in the present case from the judgment of Heerey J, dismissing their respective applications in Scott v Secretary, Department of Social Security [1999] FCA 1774 (1999) 57 ALD 627.  In the Full Court, Beaumont and French JJ in a joint judgment discussed briefly the question of claims for common law negligence.  At [20], their Honours agreed with Heerey J (who had relied on what had been said in an unrelated decision of the AAT) that there was “no general common law duty of care to advise the appellants of benefits that might potentially be available under the Act.”  Their Honours cited Shaddock, referring to the distinction between the duty of a local council to a purchaser of property to take reasonable care that information given in the certificate for which the purchaser applied under a statutory power was accurate, and the giving of general information as to a road widening proposal.  At [23] – [24], their Honours said:

“The position in Shaddock, where the Council was aware of a particular proposal and failed to mention it, may, we think, be distinguished from the position of a Department administering social security legislation.  It is one thing to expect a Department (reasonably) to communicate accurately the general range of benefits available; it is another to expect the Department to have sufficient knowledge of the personal circumstances of any particular applicant for social security, so as to be in a position to advise the applicant of specific benefits that might be available in his or her personal circumstances.

For completeness, we should mention one matter raised by the appellants in the course of their argument.  They suggested that they could claim damages in negligence for failure to process their claims for pension with due expedition.  We see no basis for such a claim on the facts.  But, in any event, our view is that such a claim, that is, for damages for alleged negligence of that kind, is not sustainable.  It is true that mandamus or a similar form of judicial review will be ordered where a public duty has not been performed within a reasonable time, compelling the specific performance of that function forthwith (see Re Federal Commissioner of Taxation: Ex parte Australena Investments Pty Ltd & Ors (1983) 50 ALR 577 and Thornton v Repatriation Commission (1981) 35 ALR 485).  But, absent a claim for misfeasance (see above), common law damages cannot be claimed merely for failure to act with due expedition.”

62                  The third member of the Court, Finkelstein J, did not dissent, but expressed a contrary view in relation to a common law duty of care.  After referring to English authorities, at [31] – [32], his Honour referred to Australian authorities and said that:

“while not establishing a clear principle by which the common law liability of the repository of a statutory power or duty is to be determined, suggest that a duty of care would exist in the present case, both as to the manner in which a claim for a benefit is processed and for the failure to process a claim with due expedition.

In this regard the following matters would be important.  The respondent’s functions are not inconsistent with the existence of a duty of care.  The respondent is responsible for the general administration of the Social Security Act: s 1295.  He must consider each application for a claim and if an applicant satisfies the necessary criteria, he must ensure that the benefit is paid.  Applicants who are entitled to benefits of the kind payable under the Social Security Act are generally in a vulnerable position.  A duty to consider a claim for a benefit and the obligation to process the claim are not legislative in character.  There is no reason in policy why a duty of care should not be owed.  It is reasonably foreseeable that a person who is wrongly deprived of a benefit to which he or she is entitled, or who endures unreasonable delay in the receipt of a benefit, may suffer physical harm.”

63                  The view of the majority in that case is binding on me.  I am therefore obliged to hold, at least, that the respondents in the present case did not owe to the applicants any common law duty of care either to advise them that benefits might be available, or to deal with their applications at or by any particular time or times.  It may be that I am also bound to hold that no common law duty of care can coexist with the statutory functions exercised by the respondents under the Social Security Act.  For several reasons, however, I propose to discuss that issue in greater detail.  First, it is unclear how far the principle enunciated in Scott extends in relation to duties of officers under the Social Security Act generally.  Second, there is a clear divergence of views between the majority on the one hand and Finkelstein J on the other.  Third, it may be that the exercise needs to be undertaken separately in relation to each alleged duty of care, because different considerations may arise.  Whilst there might not be a duty to advise, or to deal expeditiously with a claim, there might be a common law duty of care, with which the Social Security Act is consistent, in relation to other matters.  The applicants in the present case plead broader duties than those rejected in their earlier proceeding.

64                  It is relatively easy to see that the relationship between officers of the DSS and persons making claims for pensions or benefits under the Social Security Act could give rise to a common law duty of care.  Officers of the DSS would ordinarily be aware that a person claiming a pension or benefit under the Social Security Act will be likely to lack financial resources, usually to the point of being dependent upon receiving some form of assistance from government, charity or private philanthropy in order to subsist for any significant period.  In many cases, it will be apparent that such a person will need guidance, and even assistance, just to make the claim.  In other words, social security claimants can be seen as vulnerable, in the sense in which that term was used of stevedoring employees in Crimmins.  At least those who deal directly with social security claimants can be classed as having a relationship with them of a kind that would ground a duty to take reasonable care in the performance of the statutory functions so that, if there be an entitlement, it be afforded to the claimant.

65                  The analysis of the statutory provisions is not easy.  Some significance must be attached to the absence of any provision giving protection and immunity to primary decision-makers and authorised review officers, when compared with s 1338(1) of the Social Security Act, which provides such protection and immunity to members of the SSAT (and the similar protection given to members of the AAT by s 60(1) of the AAT Act in relation to applications for review of decisions, including decisions under the Social Security Act).  This absence might tend to point to a legislative intention that suits for negligence should be capable of being brought against officers of the DSS in relation to the exercise of their functions.  Other provisions of the Social Security Act point in the other direction, however.  The range of considerations mandated by s 1296, to which the Secretary is to have regard in the administration of the Social Security Act is one.  No mention is made of due care in the making of decisions.  Rather, the emphasis is on “the delivery of services ... in a fair, courteous, prompt and cost-efficient manner”.  The existence of a duty of care might be inconsistent in some circumstances with the establishment of procedures to ensure that abuses of the social security system are minimised.  This suggests that officers of the DSS need to be aware that they are responsible for the disbursement of public funds and are not at liberty to disburse them otherwise than in accordance with authority contained in the Social Security Act.  This responsibility is emphasised by s 1296(e).  Finally, there is the reference in s 1296(d) to the importance of the systems of review of decisions under the Social Security Act.  I have mentioned this system of administrative decision-making, with three levels of merits review, earlier in these reasons for judgment.  It is a powerful indication that the legislature did not intend that the correctness of a particular decision should be challenged collaterally in proceedings in a court, such as proceedings for damages for negligence in the exercise of the statutory function.  Coupled with the adoption of the satisfaction of the decision-maker as the foundation for a decision to make payments of pensions or other benefits, the system of administrative decision-making with merits review appears to be fatal to the notion that there should be a duty of care.  The scheme of the Social Security Act is fundamentally inconsistent with the notion that an unsuccessful claimant for a pension or benefit should be entitled to sue for damages on the basis that the decision to deny the pension or benefit was the result of negligence on the part of the decision-maker.  As I have already pointed out, such a claim would require that the court place itself in the shoes of the decision-maker and decide that he or she ought to have been satisfied.  It would make the satisfaction of the court, rather than of the Secretary or the delegate, the effective determinant of entitlement.

66                  I note that, in Scott at [32], Finkelstein J referred to s 1295 of the Social Security Act, which makes the Secretary responsible for the general administration of the Social Security Act.  His Honour did not refer to s 1296 which, as I have said, sets out the considerations to which the Secretary is to have regard in the administration of the Act.  In the following sentence, his Honour suggested that the Secretary had a duty to ensure that the benefit was paid if an applicant satisfied the necessary criteria.  This is not an accurate representation of the scheme of the legislation.  If objective satisfaction of the criteria gave rise to an entitlement to payment, there would be a stronger case for saying that a court could determine it.  As I have said, it is the satisfaction of the Secretary or the delegate that is the essential requirement before a payment can be made.  I consider this to be fundamentally inconsistent with the notion that a court can decide that a claimant ought to have been granted a pension or benefit, so that damages for negligently failing to grant that pension or benefit can be awarded. 

67                  For these reasons, I am of the view that the applicants are not entitled to bring proceedings in the present case, based on a common law duty of care.  As I have already held, they cannot avail themselves in this proceeding of any specific statutory duty, or any general right to proceed for breach of statutory duty.  I know of no other source of duty on which they could rely.

Breach of duty

68                  Even if it were possible to sue for breach of duty, there must be a real question as to the nature of the duty.  None of the respondents was under an absolute duty to decide that Ms Scott was entitled to DSP or to special benefit.  There was no entitlement to payment of special benefit unless the first respondent, as the primary decision-maker, was satisfied that Ms Scott fulfilled the necessary criteria.  Ms Pedler was not so satisfied.  Ms Chrystal, as the Authorised Review Officer, was satisfied and special benefit was paid in consequence of her decision. 

69                  In relation to the other statutory duties alleged, it is also clear that there was no obligation on any of the respondents in absolute terms.  In particular, s 1239 did not require that any of the respondents review the decision of Mr McLeod, or of Mr Peak, refusing to grant a DSP to Ms Scott.  The section is framed as a grant of power, not as the imposition of a duty.  It could not be construed as the imposition of a duty, consistently with any intention that could be attributed to the legislature.  It is absurd to suppose that there was an intention, by means of s 1239, to set up a system whereby every officer of the DSS was constantly required to review every decision of every other officer.  Further, the power to review is activated only if the Secretary or the relevant delegate is satisfied that there is sufficient reason to review the decision.  Again, there cannot be an absolute duty to be satisfied.  If Ms Pedler held a delegation from the Secretary entitling her to exercise the power under s 1239 (and in her evidence, she expressed a doubt that she did hold such a delegation), she was not obliged to exercise the power, even if Ms Scott asked her to do so.  She was not satisfied that there was sufficient reason to do so.  She was not even under any obligation to embark on a process that might have led to her being so satisfied.  Similarly, if she did not have such a delegation, she was not under any obligation to refer the question to another officer possessing a delegation under s 1239, for the purpose of seeing if the other officer was satisfied that there was sufficient reason to review the earlier DSP decisions.  The position is the same with respect to the second and third respondents.  They were under no absolute obligation to review the earlier DSP decisions, or to refer them to any other officer of the DSS for such review. 

70                  Supposing there to have been a common law duty of care, it is even clearer that the duty could not be absolute.  It could be no more than to take reasonable care in the performance of the respondents’ functions under the Social Security Act.  The respondents knew, because Ms Scott had told them, that she intended to seek merits review by the SSAT of the decision refusing to grant her DSP.  It was perfectly reasonable for each of them to take the view that it would be inappropriate for her to review the DSP decision, or to invite another officer of the DSS to review it.  Given that s 729(2) of the Social Security Act permitted a grant of special benefit only if no social security pension or other social security benefit was payable to the claimant at the relevant time, it was perfectly reasonable for Ms Pedler to invite Ms Scott to make another application for DSP, as a convenient means of determining whether Ms Scott satisfied that requirement.  This may not have been the only course available to Ms Pedler, but it was a course available and it was reasonable for her to adopt it.  Similarly, it was reasonable for Ms Williams to take the same view, and to encourage Ms Scott to reapply for DSP, even though the function of Ms Williams involved no more than transmitting the necessary documents to Ms Chrystal as the Authorised Review Officer.  Again, it may not have been the only course open to Ms Williams and it may not have been something that she was required to become involved in at all, but it was reasonable for her to take the course that she did.  It was also reasonable for Ms Chrystal to proceed to deal with the claim for special benefit on a different basis, having secured the cooperation of Ms Scott in speeding up her application to the SSAT for review of the DSP decision.  No breach of any duty to take reasonable care was involved on the part of any respondent.

71                  For the sake of completeness, if there had been any duty to deal with Ms Scott’s claim for special benefit reasonably promptly, I could not find that there was any breach of such a duty.  Reference was made to guidelines for dealing with applications in a timely way and to the fact that the suggested time was exceeded in the present case.  The guidelines expressed performance standards, at which officers of the DSS were encouraged, or required, to aim.  Only in respect of Authorised Review Officers were these standards the subject of specific evidence.  According to Ms Chrystal, they established as a target the standard that 95 per cent of claims by persons who had no income, and who had been rejected at the first stage, be resolved by an Authorised Review Officer within 14 days of request for review and 75 per cent of all cases be resolved within 28 days.  Ms Scott also asserted that there was a 14-day guideline in relation to decisions at the first stage.  The guidelines did not express absolute standards.  There was no expectation, or entitlement, that all cases, or any specific case, would be dealt with inside the specified period.  By definition, therefore, it was contemplated that some claims would not be dealt with inside that period.  It is not therefore possible to ground a claim for breach of duty on the failure to deal with a specific claim inside the period.  Account must also be taken of the workload of the DSS at the time.  Because of the change of law, which caused Ms Scott to become ineligible for partner allowance on 30 June 1995, there was an influx of claims from persons in the same position.  The Northcote office of the DSS had to deal with its share of those claims.  There is no evidence that extra staff would have been available, if requested.  In the light of the change of legislation, it is likely that every office of the DSS was facing a similar influx of claims.  The fact that Ms Scott’s claim for special benefit had some complexities, arising from the fact that her earlier claim for DSP had been rejected, and she had indicated her intention of pursuing a review of that rejection by the SSAT, but had not yet done so, was enough to take her claim outside the general run of cases.  The allowance in the guidelines for the possibility that not all cases would be dealt with inside the period specified was no doubt made because it was recognised that there would be cases like that of Ms Scott.

72                  To the extent to which the applicants suggested that action should have been taken to increase the rate at which special benefit was paid to Mr Scott, the claim must also fail.  The respondents were involved in the consideration of the question whether Ms Scott should receive special benefit.  As a result of Ms Chrystal’s decision, Ms Scott did receive special benefit with payments backdated to 3 July 1995.  If she had not, it may have been the case that the application of the assets test to Mr Scott would have resulted in a higher payment of special benefit to him, on the basis that he was partnered with Ms Scott, who was getting neither pension nor benefit, for the purposes of the calculation under s 733.  As it turned out, however, the occasion did not arise for the making of this calculation, because special benefit was granted.  No attempt was made by evidence to show what the results of the application of the assets test to both applicants as a couple resulted in and how it would have compared with the application of the assets test to Mr Scott on the basis that Ms Scott was not receiving any pension or benefit.  No attempt was made to show by evidence that Mr Scott’s rate of special benefit could have been increased without it exceeding the limit imposed by s 746.  If, as s 746 provided, the rate was discretionary, it could not be shown in any event that the discretion should have been exercised in a particular way, so as to found a breach of statutory duty for failing to exercise it.  There was no absolute duty to increase the rate.  There may not even have been a power to do so.  If there were a power to do so, it was not shown that it was unreasonable to have failed to exercise it.  Any exercise of it in favour of Mr Scott might have resulted in a subsequent adjustment, once Ms Scott was granted special benefit retrospective to 3 July 1995.

73                  For all of these reasons, the causes of action dependent upon alleged breaches of duties cannot succeed.

Causes of action involving intentional infliction of harm

74                  Apart from negligence, pars 21, 23 and 25 of the statement of claim identify a number of causes of action.  They are “the Beaudesert principle”, trespass, trespass on the case, misfeasance in a public office, intentional infliction of personal injury, infringement of absolute rights and acting otherwise contrary to law and unlawfully.  Some of these allegations may be dealt with briefly.  There was neither claim nor evidence that any of the respondents had committed any trespass to the person of either applicant.  Trespass to the person involves infliction of a battery, or at least the threat of such infliction.  Nor was there claim or evidence of trespass to goods or land.  The so-called Beaudesert principle, for which Beaudesert Shire Council v Smith (1996) 120 CLR 145 at 156 was authority, was said to have been derived from the action for damages upon the case, and to have involved the suffering of harm or loss as the “inevitable consequence” of the unlawful, intentional and positive acts of another.  It was said to give rise to a right to recover damages.  In Northern Territory v Mengel (1995) 185 CLR 307, the High Court held that Beaudesert should be overruled.  At 345, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ said:

“Subject to the qualification that there may be cases in which there is liability for harm caused by unlawful acts directed against a plaintiff or the lawful activities in which he or she is engaged, the Beaudesert principle should be overruled.”

75                  I am unaware of any other principle upon which the historic form of action known as trespass on the case, or the action upon the case, could be invoked in the present circumstances.  The action upon the case was a development of the common law that permitted the pleading of various causes of action that were not causes of action in trespass.  As the common law developed, the non-trespass causes of action came to be defined and became causes of action in tort recognised in the modern common law.  See Fleming, The Law of Torts, 9th edn, Law Book Company, Sydney, 1998, pp 21-23.  With the single exception of the failed attempt to revive the action upon the case in Beaudesert, I am not aware of any authority in which the action upon the case is regarded as part of the modern law of torts. 

76                  The claims relying on infringement of absolute rights must fail.  As I have already said, Ms Scott had no absolute right to receive either DSP or special benefit.  Her entitlement depended upon the achievement of the state of mind, on the part of the Secretary or a delegate, of satisfaction that Ms Scott fulfilled the criteria laid down in the Social Security Act for the making of payments.  There was no absolute right to have the decisions of Mr Peak and Mr McLeod relating to DSP reviewed pursuant to s 1239 of the Social Security Act, at all or at any particular time.  It was open to Ms Pedler and Ms Williams to suggest that Ms Scott reapply for DSP, in order to test her eligibility for DSP, when ineligibility was a criterion for the payment of special benefit.  There was no absolute right to have a decision made on the claim for special benefit by any particular time, only a guideline for the decision-maker which, by its own terms, was not required to be met in every, and therefore in any particular, case.  There was no right on the part of Mr Scott to have his rate of special benefit increased, at all or at any particular time.

77                  Allegations of acting “contrary to law” and “unlawfully” add nothing to the applicants’ case. 

78                  Some further discussion may be necessary as to the possible emerging tort of intentional infliction of harm by unlawful act.  The possible qualification referred to in the passage I have quoted above from Mengel appears to have been an attempt to describe what their Honours had earlier referred to as the “emerging tort”.  A cause of action of this kind was also discussed by Gleeson CJ, Gaudron, Kirby and Hayne JJ in a joint judgment in Sanders v Snell (1998) 196 CLR 329 at [30] – [36].  Their Honours did not think it necessary to decide whether a tort, which they described as “a tort of interference with trade or business interests by an unlawful act” should be recognised in Australia, preferring to consider only one element of the possible tort.  That element was the element of unlawful act.  It appears from what their Honours said that, if the tort is recognised in Australia, it requires that there be an act which is unlawful in the sense of being prohibited by law.  It is not sufficient that the act be unauthorised in the sense that it is ultra vires and void. 

79                  Once the putative tort is analysed in this way it is clear that, even if it be recognised in Australia, the applicants cannot rely on it in the present case.  To the extent to which they rely on omissions, they do not invoke the element of the tort that requires a positive act.  To the extent to which they rely on positive acts, as I have already held, those acts were in no sense unlawful.  It cannot be said that a failure to reach the state of satisfaction as to fulfilment of criteria is an unlawful act in any sense.  In a sense, it may be described as unauthorised but, as I have already pointed out, it is no part of the function of the Court to decide whether the Secretary or delegate should have been satisfied.  In so far as the applicants rely on any request to make a further claim for DSP, or on Ms Williams’s purported consideration of the merits of Ms Pedler’s decision, even if I am wrong in holding that it was open to Ms Pedler and Ms Williams to make such requests and to Ms Williams to express a view about the merits of the decision, the only possible description that could be attached to them is that they were unauthorised.  Further, if the tort exists in Australia, and if it is not limited to interference with trade or business interests, it nonetheless requires an intention on the part of the alleged tortfeasor to injure.  For reasons which I give below, in relation to the tort of misfeasance in a public office, I am satisfied that no such intention existed on the part of any of the respondents in the present case.

80                  That leaves the tort of misfeasance in a public office.  In Tahche v Abboud [2002] VSC 42, Smith J drew attention to the fact that the High Court had stated that the limits of this tort remain to be defined.  Relying on Mengel, Sanders and other Australian and English authority, at [16] – [19], his Honour summarised the elements of the tort as follows:

“The basic elements of the tort of misfeasance in a public office have been identified as:

(1)       the defendant must hold a public office;

(2)       there must be an invalid exercise of power or purported exercise of
            power;

(3)       the defendant must be shown to have had acted with the necessary
            intent;

(4)       the plaintiff must suffer damage as a consequence of the exercise of
            power or purported exercise of power.

The second requirement, the invalid exercise of power, includes an absence of power and acts invalid for want of procedural fairness.  It includes the exercise of a power for an improper purpose, including the purpose of a specific intent to cause injury.  It arguably includes an exercise of power for irrelevant considerations or for considerations that were manifestly unreasonable.

As to the third element, intent, it includes acting for the improper ulterior motive of intent to cause injury to the plaintiff (‘targeted malice’).  The requisite intent also includes acting with knowledge that there was no power to so act and that the act would cause or be likely to cause injury to the plaintiff, or proceeding with reckless indifference as to the existence of the power to engage in the conduct in question and its consequences.

What is involved is an abuse of power, and it is the absence of an honest attempt to perform the functions of the office which is at the heart of the tort.”

81                  Of the four basic elements that his Honour identified, only the first exists in the present case.  Each of the respondents, as an officer of the DSS, holding one or more delegations from the Secretary, held a public office.  As I have already held, there was no invalid exercise of power.  A failure to reach the requisite mental state of satisfaction cannot be characterised as unauthorised, or lacking in power.  The making of a decision adverse to a claimant for special benefit was simply an exercise of power.  As I have already said, it was open to the first and second respondents to request that Ms Scott make a further application for DSP, although they did not have to do this.  As I have also said, there was no obligation on any of the respondents to review the earlier DSP decisions, or to invite any other officer to do so.  Nor was there any obligation to increase the rate of special benefit paid to Mr Scott.  Only if I am wrong in these conclusions would it be necessary to consider the question of purpose, intention or knowledge, and the question of dishonesty, on the part of each of the respondents.

82                  It is clearly established on the evidence that, in doing what she did, Ms Pedler had no improper motive at all.  At all times, she was motivated by a desire to carry out her duties in a way that would assist Ms Scott to succeed in her claim for special benefit, if it turned out that Ms Scott was entitled to succeed.  This was not an improper purpose.  Ms Pedler certainly had no intent to cause injury to the applicants.  She was entitled, and indeed obliged, to act on the footing that if Ms Scott were entitled to DSP, as she claimed to be, she would not be entitled to special benefit.  Section 729 of the Social Security Act so provided.  Because of Ms Scott’s expressed intention to press for the review of her adverse decision relating to DSP by the SSAT, and her delay in doing so, Ms Pedler was entitled to suggest that one way of facilitating the process of the special benefit claim was to test Ms Scott’s eligibility for DSP by a further application.  Ms Pedler made the suggestion from the purest of motives.  She did not knowingly exceed any power and did not act with reckless indifference as to the existence of any power.  She acted honestly throughout. 

83                  An assessment of Ms Williams’s mental state is slightly more complex.  In an affidavit filed in the proceeding, Ms Williams expressed views critical of the applicants.  She said:

“It appeared as if the applicants were willing to deliberately place themselves in distress in order to validate their views about their treatment from those within the department with whom they came into contact.”

In the same affidavit, Ms Williams said:

“Being aware of the second applicant’s conduct with the department that extends back as far as 1993 I believe that the second applicant will always have some complaint against the department or some employee of the department.”

84                  These comments were made despite Ms Williams’s averment in the same affidavit that she had never met either of the applicants or spoken to them by telephone.  In addition, in her oral evidence, Ms Williams maintained a denial that she had ever considered the correctness of Ms Pedler’s decision to refuse Ms Scott’s special benefit, until she was confronted with the first sentence of her letter to Ms Scott of 11 August 1995, quoted in [9] above.  The applicants submitted that this was a case of deliberate falsehood and was evidence probative of an improper purpose on the part of Ms Williams, amounting to an intention to injure them.  I do not think it can be so characterised.  It would be unlikely that Ms Williams would have maintained her denial, knowing that the letter existed and that its existence and contents were known to the applicants (it was included in the court book of documents, certified by both applicants and by the Australian Government Solicitor on behalf of the respondents to be correct). 

85                  Ms Williams’s denial is much more consistent with her having forgotten that she had expressed an opinion as to the correctness of the decision.  The worst criticism that can be levelled against her is inadequate preparation for the giving of evidence.  Her denial cannot be used as evidence of her state of mind in 1995, when she had her dealings with the applicants. 

86                  I am more concerned about Ms Williams’s comments in her affidavit.  It is at least highly unusual that someone would make comments in those terms about people she has never met and to whom she has never spoken.  It is clear that, by the time she affirmed her affidavit on 1 November 2001, Ms Williams did have negative views about the applicants, particularly Ms Scott.  Given the tenor of the affidavit, it is likely that she held those views in July and August 1995.  She was a team leader in the DSS, supervising Ms Pedler, and had obviously formed her negative views on the basis of what she was told by other officers.  She was not cross-examined as to the identity of her informants. 

87                  It is one thing for Ms Williams to have held negative views, but quite another to say that she had an intention to inflict harm on the applicants.  I am satisfied that, in suggesting in the letter of 11 August 1995 that Ms Scott take up the option of applying again for DSP, Ms Williams was not endeavouring to harm the applicants.  I am satisfied that she honestly believed that a further application for DSP would enable Ms Scott to establish whether or not she was entitled to DSP.  Either this would have led to payments of DSP to Ms Scott, if she were entitled, or it would have led to payments of special benefit to her, because she would have satisfied the criterion that she be not entitled to any pension.  I am satisfied that Ms Williams’s motive was to assist Ms Scott to have the question of entitlements resolved, so that she could receive payments of whatever she was entitled to.

88                  The position of Ms Chrystal is relatively easy to determine.  She actually granted special benefit, on the basis that Ms Scott would expedite her application to the SSAT for review of the DSP decision.  She did not herself approve the DSP decision.  In so far as she delayed beyond the time laid down in the timeline guidelines, she did so because the case was an unusual one and required careful consideration.  There can be no question of any improper motive, ulterior purpose, or intention to injure on the part of Ms Chrystal.  She approached the performance of her statutory function honestly.

89                  I am satisfied that none of the respondents had the purpose of preventing Ms Scott from succeeding in her claim for DSP, by depriving her of the time she needed to gather more medical evidence as to her condition, as the applicants alleged.  I am also satisfied that, if the respondents or any of them suggested to Ms Scott that she should undergo psychiatric
assessment with respect to her claim for DSP, they did not thereby intend that Ms Scott should be labelled as having a psychiatric disease or condition.

90                  Although each of the respondents held a public office, there was no invalid exercise of power or purported exercise of power.  There was no absence of power for anything any of the respondents did and no want of procedural fairness.  None of the respondents acted for an improper purpose or took into account irrelevant or unreasonable considerations.  There was no ulterior motive of intent to cause injury to the applicants.  If there was an absence of power to do anything, none of the respondents had knowledge of that or proceeded with reckless indifference as to the existence of the power.  For these reasons, the claims for misfeasance in a public office must fail.

91                  For all of these reasons, the applicants cannot succeed with respect to any of the causes of action involving intentional infliction of harm on which they relied.

Damages

92                  Although I have reached conclusions adverse to the applicants on all of their causes of action, I should also state my conclusions on questions of damages. 

93                  On the question of general damages, the applicants contended that, in July and August 1995, they had insufficient resources to subsist.  They contended that, through starvation, they suffered physical injury, deterioration of existing medical conditions, diminution of existing physical capacity, shortened life expectation, pain and suffering and emotional distress.  They filed a substantial body of material suggesting that starvation produces all of these effects.  Some of this material related to studies by Jewish physicians in the Warsaw ghetto and the results of experiments in Nazi concentration camps.  Counsel for the respondents seems to have assumed that this material was put forward in order to suggest that the behaviour of the respondents was to be equated with that of Nazis.  I do not accept that this was the reason.  The material put forward was that which was available to the applicants in relation to starvation.  There was also presented information about income and expenditure, suggesting that the maximum amount available for food each week was $48 for both applicants, setting out the energy and protein values of the foods that the applicants were able to buy with this, drawing attention to the deficiencies of the diet in certain types of nutrients, minerals and vitamins and of the poor quality of vegetable protein.  It was said that Mr Scott lost 10 kg and Ms Scott 12 kg of body weight in the period between 7 July 1995 and 4 September 1995.  It was said that the applicants tried to obtain additional nutrition by searching rubbish bins, but were reluctant to do so because of susceptibility to infections and the existence of parasitic diseases.  The applicants were not cross-examined on whether they had attempted to avail themselves of other sources of nutrition, particularly from charities.  Nor was there any cross-examination as to whether the applicants had accumulated any resources that they could have used, or did use. 

94                  What was lacking, and what would have been necessary in my view, for any meaningful assessment of damages to be made, was independent medical evidence as to the precise effect of the applicants’ situation on their health, in both the short-term and the long-term.  It is one thing to say, as the applicants did, that starvation causes deterioration.  It is another to establish the degree to which deterioration actually occurred in relation to each of them.  It would be necessary to know whether, and to what extent, the weight loss they suffered did in fact cause deterioration of pre-existing medical conditions, or long-term damage, before a proper assessment could be made.  In the absence of such evidence, I should have found it impossible to arrive at a figure for general damages, if the applicants had succeeded in relation to any of their causes of action.

95                  Special damage was alleged, in two items.  The first was the expense of the provision of medical evidence confirming the already existing medical evidence.  I assume this to have been relevant to the allegation that Ms Scott was entitled to have her claim for DSP upheld on the evidence as it existed in 1993.  Assuming that the amount specified was incurred, there are difficulties of causation.  If the claim for DSP was good on the medical evidence existing in 1993, there was no need for Ms Scott to have obtained further medical evidence to support her proposed application to the SSAT.  Even if she wished to obtain further evidence, there was no reason why she could not have lodged her application to the SSAT before obtaining such evidence.  It was only necessary to produce the evidence at the hearing before the SSAT.  The delay in making the SSAT application, and the efforts Ms Scott made to procure medical evidence from overseas to support her claim, were connected with the events of July and August 1995 only in the sense that they precipitated those events.  The events were brought about by Ms Scott herself and cannot be regarded as damage flowing from anything that the respondents did or failed to do.  The other item of special damage alleged was financial loss “caused by securing the appeal” to the AAT.  I assume this item to have been a fee paid for that appeal.  In that event, it is clear that the fee was the result of the lack of success of Ms Scott’s application to the SSAT for review of the 1993 DSP decision.  It did not flow from anything the respondents did or failed to do in 1995.

96                  I can deal with the claims for aggravated and exemplary damages briefly.  In Gray v Motor Accident Commission (1998) 196 CLR 1 at [6], Gleeson CJ, McHugh, Gummow and Hayne JJ quoted with apparent approval a passage from the judgment of Windeyer J in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149, where Windeyer J described the difference between aggravated and exemplary damages as being:

“that aggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done: exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve one or more of the objects of punishment — moral retribution or deterrence.”

97                  In the present case, even if the applicants had been able to succeed on any of the causes of action on which they relied, it is highly unlikely that they would have succeeded in establishing that any wrongful act by any of the respondents was aggravated by the manner in which it was done, or that the respondents were deserving of punishment on the ground of moral retribution or deterrence.  Far from acting in a high-handed fashion, the respondents acted from the best of motives, in an attempt to assist Ms Scott to establish an entitlement to be paid either DSP or special benefit.  If they did err, it could only have been in some technical way, meriting neither additional compensation to the applicants nor condemnation of the respondents.

98                  There was no evidence to support the allegations in par 30 of the statement of claim, quoted above.  They were allegations of a kind of which judicial notice could not be taken, despite the opening words of the paragraph.  If judicial notice could be taken of such things, I certainly do not have the knowledge of the facts that would enable me to take it.  The allegations are not borne out by the evidence in this case.

Conclusion

99                  The application must be dismissed.  The ordinary rule is that costs follow the event.  No occasion exists for departing from that rule in the present case.  It would have been open to the applicants to have raised in the earlier proceeding before Heerey J all of the matters they raised in the present proceeding, and to have added as respondents to that proceeding the respondents they have sued in this.  Instead, having failed before Heerey J, and on appeal, and on an application for special leave to appeal to the High Court, the applicants chose to start again with different respondents, and to attempt to broaden the issues and to differentiate them from those that were the subject of the earlier proceeding.  They cannot contend that they have done so in any real sense in the public interest.  The declaratory and injunctive relief they sought amounted to nothing more than attempts to restate what they contended to be the obligations of the respondents under the Social Security Act.  I recognise that it is the case that the applicants are without significant resources.  They are social security recipients and they are unwell.  Poverty is not necessarily a ground for refraining from making an order for costs.  In my view, it would be wrong to allow the applicants to think that they can persist in invoking the processes of the Court unsuccessfully and not be held responsible, at least to the extent of incurring debts for the costs of those whom they have chosen to sue.

100               For these reasons, the application must be dismissed with costs.

Associate:

Dated:              27 June 2003