FEDERAL COURT OF AUSTRALIA
Scott v Human Rights and Equal Opportunity Commission [2010] FCA 1323
Place: |
Melbourne |
Division: |
GENERAL DIVISION |
Category: |
Catchwords |
Number of paragraphs: |
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Counsel for the Respondents: |
Mr P J Ginnane |
Solicitor for the Respondents: |
Australian Government Solicitor |
FEDERAL COURT OF AUSTRALIA
Scott v Human Rights and Equal Opportunity Commission [2010] FCA 1323
CORRIGENDUM
1. In Order 2, the time “2.15 am” should read “2.15 pm”.
I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice North. |
Associate:
Dated: 16 December 2010
IN THE FEDERAL COURT OF AUSTRALIA |
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First Applicant SOPHIE SCOTT Second Applicant |
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AND: |
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent |
DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. Subject to paragraph 2 of these orders, the proceeding is dismissed.
2. The application under Order 21 of the Federal Court Rules relating to vexatious litigants referred to in paragraphs 2 and 3 of the notice of motion filed by the second respondent on 23 June 2009 is adjourned until 2.15 am on 28 March 2011.
3. The applicants pay the second respondent’s costs of the proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.
VICTORIA DISTRICT REGISTRY |
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GENERAL DIVISION |
VID 1020 of 2008 |
BETWEEN: |
RALPH SCOTT First Applicant SOPHIE SCOTT Second Applicant
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AND: |
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent
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JUDGE: |
NORTH J |
DATE: |
2 DECEMBER 2010 |
PLACE: |
MELBOURNE |
REASONS FOR JUDGMENT
[1] |
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[6] |
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[17] |
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[31] |
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[31] |
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[36] |
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[43] |
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[48] |
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Scott v Secretary, Department of Social Security [1999] FCA 1774 (Heerey J) |
[48] |
[60] |
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Scott & Anor v Secretary, Department of Social Security M112/00 (Callinan and Kirby JJ) |
[67] |
[68] |
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[93] |
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[97] |
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The previous complaint to the Commission and the proceedings which followed |
[98] |
[107] |
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[119] |
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[120] |
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[123] |
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[124] |
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The application for dismissal under s 31A Federal Court of Australia Act |
[124] |
[128] |
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[135] |
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[145] |
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THE ADJR Act grounds of challenge to the Commission decision |
[148] |
[148] |
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[155] |
|
[160] |
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[164] |
|
[168] |
|
[173] |
|
[175] |
|
[217] |
|
[228] |
1 This judgment deals with paragraph 1 of a notice of motion filed on 23 June 2009 by the second respondent, the Commonwealth of Australia (the Commonwealth), seeking orders that an application for review filed by the applicants, Ralph and Sophie Scott, be summarily dismissed.
2 The application for review concerns a decision of the first respondent, the Human Rights and Equal Opportunity Commission, made on 22 September 2008. Since 5 August 2009, it has been known as the Australian Human Rights Commission (the Commission). The Commission decided not to inquire into a complaint made by Mr and Mrs Scott, which complaint alleged breaches of their human rights under the Human Rights and Equal Opportunity Commission Act 1986 (Cth). That Act has, since 5 August 2009, been known as the Australian Human Rights Commission Act 1986 (Cth) (the Australian Human Rights Commission Act). Mr and Mrs Scott have not been legally represented in these or any of the previous related proceedings. They were given a number of opportunities to amend their application in order to raise grounds which were legally comprehensible. The final amended application, filed on 27 April 2010, seeks orders that the decision of the Commission be set aside. It also seeks orders that judgments in three previous proceedings brought by Mr and Mrs Scott be set aside and that those proceedings be reopened. The application for review also seeks declarations that certain conduct of the Commonwealth was tortious, and for an order that the Commonwealth pay compensation for that conduct to Mr and Mrs Scott.
3 The Commonwealth argues, first, that the proceeding should be dismissed because Mr and Mrs Scott have no reasonable prospect of successfully prosecuting the application. This claim is brought under s 31A(2) of the Federal Court of Australia Act 1976 (Cth). Second, the Commonwealth argues that the proceeding should be dismissed because it is an abuse of process, primarily because it seeks to relitigate the dispute which has already been determined against Mr and Mrs Scott. It seems that this claim is brought under O 20 r 5(1)(b) of the Federal Court Rules which allows the Court to dismiss a proceeding if it is an abuse of process.
4 Something should be said about how the first argument relied upon by the Commonwealth evolved. The notice of motion sought orders under O 20 r 5 on the basis that the proceeding was frivolous and vexatious. When counsel came to prepare written submissions and argue the case for the Commonwealth, he contended that the proceeding was foredoomed to fail, was therefore an abuse of process, and should be dismissed for this reason. No reference to abuse of process is to be found in the notice of motion. No specific reference is to be found in the notice of motion to O 20 r 5(1)(b) which gives the Court the power to dismiss a proceeding as an abuse of process. However, as the written and oral submissions made it clear that the Commonwealth relies on this ground, no injustice results from the Commonwealth’s failure to properly state the basis of its application in the notice of motion. After judgment was reserved it occurred to the Court that the proper legal basis for the argument relied upon by the Commonwealth might be s 31A(2) of the Federal Court of Australia Act. This section allows the Court to dismiss a proceeding if satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding. It provides a less stringent test for summary dismissal than is provided for summary dismissal under the Federal Court Rules. The section was introduced and operative from 1 December 2005. It therefore applies to this proceeding which was filed in 2008. The Court drew the attention of the Commonwealth to s 31A in a letter dated 17 September 2010 which was copied to Mr and Mrs Scott. In its response dated 19 October 2010, the Commonwealth indicated that it relies on the section. Mr and Mrs Scott also responded but took no objection to reliance on this alternative legal ground. For that reason I have considered whether the proceeding should be dismissed on the basis that Mr and Mrs Scott have no reasonable prospect of successfully prosecuting the application for review.
5 I have reached the conclusion that the proceedings should be dismissed because Mr and Mrs Scott have no reasonable prospect of successfully prosecuting the application for review, and also because the application is an abuse of process. This judgment explains the reasons for those conclusions.
6 What follows is a summary of the essential facts necessary for an understanding of these reasons. This application is one of several brought by Mr and Mrs Scott concerning their dispute about the payment of social security benefits to them. The detailed circumstances of their dispute are recorded in a number of judgments which involved previous litigation including Scott v Secretary, Department of Social Security [1999] FCA 1774 (Heerey J), [2000] FCA 1241 (Beaumont, French & Finkelstein JJ) (Scott v Secretary, Department of Social Security) and Scott v Pedler [2003] FCA 650 (Gray ACJ), [2004] FCAFC 67 (Gyles, Conti & Allsop JJ) (Scott v Pedler). Recourse to these accounts should be made for a fuller description of the events, and for more detail of the statutory provisions concerning eligibility for the various social security benefits in question. A particularly comprehensive account of these matters can be found in Scott v Pedler per Gray ACJ at [1-26] and on appeal in the judgment of Conti J at [1-28].
7 Mr and Mrs Scott were born in Poland and came to Australia as refugees in 1986.
8 On 28 January 1993, Mrs Scott applied for a Disability Support Pension (DSP). In order to qualify for this benefit it was necessary, inter alia, that a claimant had an impairment of 20% or more under the Impairment Table of the Social Security Act 1991 (Cth) (the Social Security Act).
9 On 16 November 1993, the application was rejected by the Regional Manager of the Department of Social Security (the Department), Mr Stuart McLeod, on the basis that the Commonwealth Medical Officer, Dr Paulson, had assessed Mrs Scott as having a nil impairment. This decision was referred for internal review to an authorised review officer, Mr Ian Peak.
10 On 24 November 1993, Mr Peak notified Mrs Scott that the decision to reject her DSP application was correct.
11 At this time Mr Scott, who was permanently incapacitated, was receiving a DSP. As a result Mrs Scott was receiving a partner allowance. However, from 1 July 1995 this allowance was only available to claimants aged over 40. Mrs Scott was 32. Thus, on 30 June 1995, Mrs Scott applied for a Special Benefit (SB) which is available if no other benefit is applicable.
12 The application for SB was rejected by Ms Toni Pedler on the basis that the SB was only available if no other benefit was available and Mrs Scott had not tested her eligibility for other benefits. This reason for rejection was detailed in a letter from Mr McLeod to Mrs Scott, dated 19 July 1995.
13 Ms Pedler’s decision was reviewed by Ms Julie Williams. On 11 August 1995, Ms Williams also rejected the application for SB. That decision was sent for internal review to Ms Roberta Chrystal, an authorised review officer.
14 On 23 August 1995, Ms Chrystal allowed the application for SB as an interim measure on the condition that Mrs Scott commenced an appeal to the Social Security Appeals Tribunal (SSAT) against Mr Peak’s decision to reject her application for DSP on 24 November 1993. As a result of Ms Chrystal’s decision, the SB was first paid to Mrs Scott on 1 September 1995, and back paid from 3 July 1995, the next business day following Mrs Scott’s application for SB and the cessation of her Partner Allowance payments on 30 June 1995.
15 On 25 September 1995, Mrs Scott lodged an application with the SSAT for review of Mr Peak’s decision to reject her application for DSP.
16 On 8 January 1996, the SSAT affirmed the decision to reject the DSP claim on the basis that Mrs Scott had a nil impairment. Mrs Scott then appealed to the Administrative Appeals Tribunal (AAT) against the decision of the SSAT. On 9 September 1996, the AAT determined that Mrs Scott was entitled to DSP and that it be back paid from 28 January 1993. This determination was made without a contest. The Department agreed that the AAT should make the determination in favour of Mrs Scott.
The complaint to the Commission
17 The complaint by Mr and Mrs Scott to the Commission is contained in a letter dated 14 February 2008. To this letter is attached a document containing 33 paragraphs entitled Facts of the Claim / Complaint, and to that document are attached about 150 pages of supporting material. Finally, there is a further elaboration of the complaint in a letter dated 17 March 2008 from Mr and Mrs Scott to the Commission.
18 Much of the content of the letters of complaint are argumentative and will be considered when the arguments of the parties are addressed later in these reasons.
19 The core of the complaint is expressed in the letter dated 14 February 2008, thus:
We are asking for investigation of the intention not to recognize physical impairment in 1993-1996, abuse of psychiatry in 1993-1996, deceit in 1993 and falsification of documents in 1993 re the alleged assessment of the CMO of 0% impairment, the intentional use of force of hunger from rejection of special benefit, hindering the appeal to the SSAT.
20 This cryptic summary of the essence of the complaint is significant because it represents Mr and Mrs Scott’s view about the matters which are of central concern to them. Without this identification of the matters of concern, the Commission would have been left to identify the matters of concern from the large volume of material supplied by Mr and Mrs Scott. It is therefore important to understand the meaning of the short summary used by Mr and Mrs Scott in the complaint.
21 From the attached material is seems that “the intention not to recognise physical impairment in 1993-1996” is a criticism of Mr McLeod, Mr Peak, Ms Pedler, Ms Williams, and the SSAT for accepting the nil impairment assessment made by the Commonwealth Medical Officer rather than the medical evidence supplied by Mr and Mrs Scott which they said established that Mrs Scott had an impairment of well over 20%.
22 The reference to “the abuse of psychiatry in 1993-1996” appears to refer to Mr and Mrs Scott’s view that Ms Chrystal advised Mrs Scott to make a fresh application for DSP in August 1995 in order to force Mrs Scott to attend a psychiatric examination. Ms Chrystal did encourage Mrs Scott to make a new application for DSP instead of SB. She said that she believed that the only basis upon which Mrs Scott would qualify for DSP would be as a result of a psychiatric impairment, because there was no sufficient established physical impairment. This complaint may also be directed to the SSAT which stated:
… on the evidence available, the Tribunal concurs with the view that it is possible that many of the appellant’s symptoms are of psychological nature and that attending a psychiatrist may give a valid basis for disability support pension.
23 The observations of Ms Chrystal and the SSAT that psychiatric examination of Mrs Scott may establish a basis for granting DSP echoed the view contained in the report of Commonwealth Medical Officer, Dr Paulson, to the Department on 6 October 1993 regarding her medical assessment of Mrs Scott. After outlining Mrs Scott’s medical history, the report stated:
I am still unable to give a definitive recommendation regarding work capacity as, in my view, a specialist psychiatric opinion is essential to making a fully informed recommendation. My final assessment of permanent impairment and combined value are also incomplete for the same reason.
24 The reference to “deceit in 1993 and falsification of documents in 1993 re the alleged assessment of the Commonwealth Medical Officer of 0% impairment” appears to relate to the form filled out by the Commonwealth Medical Officer, Dr Paulson, in 1993 following her examination of Mrs Scott in relation to the original claim for DSP. In essence Mr and Mrs Scott say many of the ailments which were reported by Mrs Scott’s doctors were not included in the record of the examination, and the form was not completed or signed as required by the Social Security Act.
25 The reference to “the intentional use of force of hunger from rejection of special benefit, hindering appeal to the SSAT”, seems to relate to a claim that between 30 June 1995 when Mrs Scott applied for SB and 1 September 1995 when it was paid, Mr and Mrs Scott had no means of support. They claim that this was clear to the Department because the application showed that they had no resources. Further, on 3 August 1995 they wrote to Mr McLeod, in part stating:
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.
26 They complained that even after Ms Chrystal made her decision on 23 August 1995, the payment of SB was not made for a week. It seems to be suggested that the denial of resources by the Department was aimed to cause starvation so that Mr and Mrs Scott would not pursue the appeal to the SSAT.
27 The letter of complaint dated 14 February 2008, also asserted that the Commonwealth acted in violation of Art 25(c) of the International Covenant on Civil and Political Rights (ICCPR). That Article provides for a right:
To have access, on general terms of equality, to public service in his country.
Mr and Mrs Scott asked the Commission to consider the “guarantee” in Art 5(2) of the ICCPR which provides:
There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.
28 They also complained that the judgment in Scott v Pedler, by holding that on the proper construction of the Social Security Act, Mr and Mrs Scott were not owed any common law duty of care, was inconsistent with Art 2(3)(a) of the ICCPR which specifies a duty:
To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.
29 It seems that the Commission wrote to Mr and Mrs Scott on 5 March 2008. That letter is not before the Court, but it elicited a response from Mr and Mrs Scott, dated 17 March 2008, which clarified the basis of their complaint, and also set out several pages of argument on the question of whether the subject matter of the complaint had already been concluded by the Courts or by the Commission. The argument that the subject matter of the complaint has not been dealt with by the Courts will be addressed later in these reasons. For present purposes, the clarifications of the complaint need to be noted. The first addition was contained in the highlighted words as follows:
The breach of human rights by the Commonwealth and its agencies in regard to Mrs Scott’s Disability Support Pension (DSP) and related benefits by application of unreasonable restrictions and/or by the intention not to recognize physical impairment in 1993-1996, abuse of psychiatry in 1993-1996, deceit in 1993 and falsification of documents in 1993 about the alleged assessment of the CMO of 0% impairment under the Social Security Act 1991 (SSAct), the intentional use of force of hunger from rejection of special benefit, hindering the appeal to the Social Security Appeals Tribunal (SSAT).
30 The second addition was as follows:
Please consider the breach of the right:
- to freedom from torture or cruel, inhuman and/or degrading treatment;
- to be treated fairly and equally;
- to welfare assistance; and
- to adequate food and shelter
Inquiry into acts or practices contrary to human rights
31 The role of the Commission, in relation to the complaint lodged by Mr and Mrs Scott is prescribed by the Australian Human Rights Commission Act.
32 Section 11(1)(f) of the Australian Human Rights Commission Act provides that one of the functions of the Commission is:
(f) to inquire into any act or practice that may be inconsistent with or contrary to any human right, and:
(i) where the Commission considers it appropriate to do so—to endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry; and
(ii) where the Commission is of the opinion that the act or practice is inconsistent with or contrary to any human right, and the Commission has not considered it appropriate to endeavour to effect a settlement of the matters that gave rise to the inquiry or has endeavoured without success to effect such a settlement—to report to the Minister in relation to the inquiry;
[emphasis added]
33 A number of the terms used in s 11(1)(f) are defined in s 3. The terms ‘act’ and ‘practice’ are defined, so far as is relevant to this proceeding, in identical terms as an act or practice “engaged in by or on behalf of the Commonwealth or an authority of the Commonwealth or under an enactment”. ‘Enactment’ includes a Commonwealth enactment. ‘Human rights’ means “the rights and freedoms recognised in the Covenant, declared by the Declarations or recognised or declared by any relevant international instrument. ‘Covenant’ means “the International Covenant on Civil and Political Rights, a copy of the English text of which is set out in Schedule 2, as that International Covenant applies in relation to Australia”. ‘Declaration’ includes “(c) the Declaration on the Rights of Disabled Persons proclaimed by the General Assembly of the United Nations on 9 December 1975, a copy of the English text of which is set out in Schedule 5” (DRDP).
34 The power of the Commission to inquire into acts or practices contrary to human rights is engaged by a person making a complaint to the Commission. The Commission has a discretion to refuse to inquire into the acts or practices on defined grounds. At the time of Mr and Mrs Scott’s complaint to the Commission, these matters were relevantly dealt with in s 20 (1) and (2) as follows:
(1) Subject to subsection (2), the Commission shall perform the functions referred to in paragraph 11(1)(f) when:
…
(b) a complaint is made in writing to the Commission alleging that an act or practice is inconsistent with or contrary to any human right;
(2) The Commission may decide not to inquire into an act or practice, or, if the Commission has commenced to inquire into an act or practice, may decide not to continue to inquire into the act or practice, if:
…
(c) in a case where a complaint has been made to the Commission in relation to the act or practice:
(iii) where some other remedy has been sought in relation to the subject matter of the complaint—the Commission is of the opinion that the subject matter of the complaint has been adequately dealt with; or
[emphasis added]
35 If the Commission finds after inquiry that an act or practice is contrary to human rights, s 29(2) provides that the Commission:
(a) shall serve notice in writing on the person setting out its findings and the reasons for those findings;
(b) may include in the notice any recommendations by the Commission for preventing a repetition of the act or a continuation of the practice;
(c) may include in the notice any recommendation by the Commission for either or both of the following:
(i) the payment of compensation to, or in respect of, a person who has suffered loss or damage as a result of the act or practice;
(ii) the taking of other action to remedy or reduce loss or damage suffered by a person as a result of the act or practice;
(d) shall include in any report to the Minister relating to the results of the inquiry particulars of any recommendations that it has made pursuant to paragraph (b) or (c);
(e) shall state in that report whether, to the knowledge of the Commission, the person has taken or is taking any action as a result of the findings, and recommendations (if any), of the Commission and, if the person has taken or is taking any such action, the nature of that action; and
(f) shall serve a copy of that report on the person and, if a complaint was made to the Commission in relation to the act or practice:
(i) where the complaint was made by a person affected by the act or practice—shall serve a copy of that report on the complainant; or
(ii) if the complaint was made by another person—may serve a copy of that report on the complainant.
Inquiry into unlawful discrimination
36 The Commission also has the function to inquire into and attempt to conciliate complaints of unlawful discrimination (s 11(1)(aa)).
37 Unlawful discrimination includes any acts, omissions or practices that are unlawful under Part II or Part IIA of the Racial Discrimination Act 1975 (Cth).
38 Section 9 of the Racial Discrimination Act, which is found in Part II of the Act, relevantly provides:
(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
(1A) Where:
(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
(b) the other person does not or cannot comply with the term, condition or requirement; and
(c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;
the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.
(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.
39 The Convention is defined in s 3(1) as:
the International Convention on the Elimination of All Forms of Racial Discrimination that was opened for signature on 21 December 1965 and entered into force on 2 January 1969, being the Convention a copy of the English text of which is set out in the Schedule.
40 Article 5(e)(iv) of the Convention provides:
In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
…
(e) Economic, social and cultural rights, in particular:
…
(iv) The right to public health, medical care, social security and social services;
41 Part IIB of the Australian Human Rights Commission Act provides for redress for unlawful discrimination. A written complaint may be lodged with the Commission alleging unlawful discrimination (s 46P(1)). Section 46PD provides:
If a complaint is made to the Commission under section 46P, the Commission must refer the complaint to the President.
42 Section 46PF(1) provided:
If a complaint is referred to the President under section 46PD, the President must inquire into the complaint and attempt to conciliate the complaint.
The decision of the Commission
43 In a letter dated 22 September 2008 from the Commission to Mr and Mrs Scott, Ms Karen Toohey, as delegate of the President of the Commission, advised that the Commission had decided not to inquire into their complaint under s 20(2)(c)(iii) of the Act and gave reasons for that decision.
44 In the letter Ms Toohey outlined the background to the complaint. She said that Mr and Mrs Scott had made a previous complaint to the Commission on 28 August 2006. The Commission determined not to inquire into that complaint. Mr and Mrs Scott sought judicial review of that decision and the application was summarily dismissed by the Federal Magistrates Court (Scott v Human Rights and Equal Opportunity Commission [2007] FMCA 1642). Ms Toohey recorded that an application for leave to appeal was refused on 21 December 2007 by Kenny J: Scott v Human Rights and Equal Opportunity Commission [2007] FCA 2055 (Scott v HREOC).
45 Ms Toohey then addressed the complaint insofar as it was brought against the actions of various individual employees of the Commonwealth. To the extent that the complaint was directed against them in their personal capacity she said that the complaint was misconceived because the Commission had power to inquire only into acts or practices which were defined as acts or practices by or on behalf of the Commonwealth, an authority of the Commonwealth or under an enactment.
46 Next, Ms Toohey determined that the subject matter of this complaint “essentially relate to the same subject matter” as the previous complaint to the Commission. This observation appears not to have been intended to have been determinative because the decision continued thus:
Notwithstanding this, I consider that the issues you complain about have been subject to comprehensive judicial consideration and have been adequately dealt with.
I note that Mrs Scott appealed against the refusal of her application for a Disability Support Pension made in 1993. As a result, Centrelink conceded the application and Mrs Scott became entitled to a Disability Support pension from 28 January 1993. I also note that Mrs Scott’s application for a Special Benefit was backdated to 1 July 1995 and she was also paid arrears. These matters were considered in the following decisions:
- Scott v Secretary, Department of Social Security [1999] FCA 1774 (Heerey J);
- Scott v Secretary, Department of Social Security [2000] FCA 1241 (Beaumont, French and Finkelstein JJ];
- Scott & Anor v Secretary, Department of Social Security M112/00 (Callinan and Kirby JJ) (special leave refused);
- Scott v Pedler [2003] FCA 650 (Gray ACJ);
- Scott v Pedler [2004] FCAFC 67 (Gyles, Conti and Allsop JJ); and
- Scott & Anor v Pedler & Ors M83 of 2004 (Hayne and Crennan JJ) (special leave refused).
In addition, I note that various courts have considered the actions of the officers you complain about. With respect to Mr Scott’s claim Heerey J said:
“the evidence does not support the allegations of intentional, malicious and conspiratorial wrongdoing made in the statement of claim. There is no basis for finding that the Department or any of its officers acted with an intention to cause harm to Mr Scott or knowingly acted in excess of power. There has been no misfeasance in public office.”
In relation to Mr Scott’s matter, Heerey J also held:
“the Department officers have applied the Act properly. They have sought to do the best they could for her, consistently with their statutory obligations. In some instances they have made decisions giving Mrs Scott the benefit of the doubt. The allegations of malicious, conspiratorial conduct are completely without foundation. There was no misfeasance in public office.”
I appreciate that you may not be satisfied with the various decisions made about your social security payments and related benefits. However, these decisions were the subject of scrutiny by the Federal Magistrate Court, Federal Court of Australia and High Court. These courts considered the issues you have complained about and the individuals you refer to in your complaint.
For these reasons, I have decided to decline your complaint under section 20(2)(c)(iii) of the HREOCA as I am of the opinion that the subject matter of the complaint has been adequately dealt with.
47 It is now necessary to examine the judgments relied upon by the Commission in order to consider whether Mr and Mrs Scott have any reasonable basis for challenging the Commission’s reliance on the judgments.
Judgments relied upon by the Commission
Scott v Secretary, Department of Social Security [1999] FCA 1774 (Heerey J)
48 This judgment dealt with two proceedings brought by Mr and Mrs Scott. The first proceeding (VG666 of 1996) was a review of a decision of the AAT which affirmed the rejection by the SSAT of the grant of DSP to Mr Scott from 19 June 1995 to 5 October 1995.
49 From 7 October 1991 Mr Scott had been receiving SB. Until 1 January 1995, DSP was not payable unless the claimant had resided in Australia for 10 years. On this basis Mr Scott did not qualify for DSP until the law changed from 1 January 1995. From that date he did qualify because the residence requirement was lifted in respect of refugees. On 19 June 1995 Mr Scott submitted a SB review form to the Department. On 24 July 1995 the Department wrote to Mr Scott suggesting that he might be eligible for DSP, and attached a form for the purpose. Mr Scott returned the form on 5 October 1995. DSP was granted from that date. Mr Scott argued that DSP should have been paid from 19 June 1995 because the SB review form amounted to a claim for DSP within the meaning of the Act. Heerey J upheld this argument, set aside the decision of the AAT and ordered that DSP be paid to Mr Scott, backdated from 19 June 1995.
50 The second proceeding (VG69 of 1997) was brought under s 39B of the Judiciary Act 1903 (Cth) against JR Handley, a senior member of the AAT, and against the Secretary of the Department. Mr Scott argued that he should have been notified by the Department of the change in the law which entitled him to be paid DSP from 1 January 1995. He said that he was wrongly deprived of that benefit from 1 January 1995 until the Department advised him to so apply on 24 July 1995. Mrs Scott argued that, as a further result, she was wrongly denied a wife’s pension for that period. Mrs Scott also complained of the failure of the Department to approve payment of SB to her for the period 1 July 1995 to 24 August 1995 until 2 September 1995. Mr and Mrs Scott sought declarations, mandatory orders granting them the benefits claimed, and damages, including aggravated and exemplary damages of not less than $500,000.
51 In relation to both Mr and Mrs Scott, it was contended that the Department owed a duty to take care for the welfare of Mr and Mrs Scott both under statute and at common law. It was said that the Department intentionally failed to perform these duties in order to delay the grant of DSP to Mr Scott and to deny Mrs Scott the wife’s pension. It was also alleged the Department recklessly or negligently misrepresented the appropriate payments due to Mr and Mrs Scott. Then it was contended that the Department infringed the absolute rights of Mr and Mrs Scott, intentionally inflicted personal injury on them, and engaged in misfeasance in public office.
52 Heerey J began the discussion of Mr Scott’s claim at [46] as follows:
Before turning to the remainder of Mr Scott’s claim, I should state at the outset that the extravagant allegations of malice, bad faith and other intentional wrongdoing made by both Mr Scott and Mrs Scott in my opinion are baseless. A number of Departmental officers gave evidence. They were cross-examined quite skilfully and thoroughly by Mrs Scott. I am quite satisfied that those officers, and other officers who dealt with Mr and Mrs Scott, carried out their duties conscientiously and in good faith. Indeed, as will be seen in relation to Mrs Scott’s claim, in some respects Departmental officers gave her the benefit of the doubt.
53 His Honour then held that the Social Security Act did not create a statutory duty sounding in damages, and that there was no common law duty of care owed by the Department to inform Mr and Mrs Scott of potential benefits under the Social Security Act.
54 His Honour concluded the reasons relating to Mr Scott’s claim at [53] as follows:
Thus, quite apart from the absence of any legally enforceable duties of the kind alleged by him, the evidence does not support the allegations of intentional, malicious and conspiratorial wrongdoing made in the statement of claim. There is no basis for finding that the Department or any of its officers acted with an intention to cause harm to Mr Scott or knowingly acted in excess of power. There has been no misfeasance in public office: Northern Territory v Mengel [1995] HCA 65; (1995) 185 CLR 307 at 345.
55 Then, Heerey J outlined the evidence relating to Mrs Scott’s claim including the lodgement of her DSP claim on 28 January 1993 and its rejection, the lodgement of the SB claims including the 30 June 1995 claim, its initial rejection by Ms Pedler, and the successful review by Ms Chrystal. His Honour then outlined the evidence relating to the SSAT appeal in relation to the rejection of the 1993 DSP claim, the adverse SSAT decision on this appeal, and then the conceded successful appeal to the AAT.
56 His Honour outlined the claims made by Mrs Scott. She alleged that because Mr Scott made his DSP claim on 5 October 1995 and thereby missed the opportunity to be paid DSP from 1 January 1995, Mrs Scott missed the opportunity to be paid wife’s pension from 1 January 1995. She said she was forced to apply for an alternative benefit, and that the Department wrongfully denied her either DSP or SB to which she was entitled. Mrs Scott further alleged she was intentionally starved by these means to prevent her having the rejection of the 1993 DSP claim reversed by the SSAT. At [77] his Honour records that Mrs Scott alleged that the grant of SB was intentionally delayed by the Department until 24 August 1995 and that Mr and Mrs Scott were:
at that time intentionally ultra vires the Act and intentionally contrary to common law or otherwise intentionally unlawfully directly or indirectly denied by [the Department] the absolute rights namely
(a) the right to a standard of living adequate for health and well-being of the applicants; and
(b) the right to adequate nourishment and medicines for the preservation and structures of the applicants’ bodies; and
(c) the right to security in the event of disability; and
(d) the right to have the Applicants’ dignity respected; and
(e) the right to have a decision reviewed by the competent higher authorities; and
(f) the right to prepare a case for review by the competent higher authorities.
57 At [78] his Honour records Mr and Mrs Scott’s allegations that the Department:
was at that time well aware of the Applicant’s economic situation and nevertheless disregarded the numerous pleas of [Mrs Scott] for the SB payment to eliminate the exceptional hardship and the suffered by the Applicants’ injury and humiliation therefore (but not exclusively therefore) [the Department] in the aggravated way
(a) consciously and wilfully acted in excess of statutory power and otherwise unlawfully;
(b) intentionally and contumeliously infringed the absolute rights of the Applicants;
(c) intentionally and contumeliously refused to desist from the wrongful and injurious conduct;
(d) wilfully caused the foreseeable harm to the Applicants;
(e) intentionally and contumeliously engaged in conduct calculated by producing injury and suffering to the Applicants to compel [Mrs Scott] to resign from the absolute right to review.
58 In relation to Mrs Scott’s claim, his Honour reiterated that no duty of care sounding in damages was owed by the Department to Mrs Scott. His Honour concluded:
84 In any case, Departmental officers have applied the Act properly. They have sought to do the best they could for her, consistently with their statutory obligations. In some instances they have made decisions giving Mrs Scott the benefit of the doubt. I refer in particular to Ms Chrystal’s decision as to backdating of SB, and the decision to concede the AAT appeal.
85 The allegations of malicious, conspiratorial conduct are completely without foundation. There was no misfeasance in public office.
59 For those reasons, Heerey J dismissed application VG69 of 1997.
Scott v Secretary, Department of Social Security [2000] FCA 1241 (Beaumont, French and Finkelstein JJ]
60 This was an appeal brought by Mr and Mrs Scott against the orders made by Heerey J. In a joint judgment Beaumont and French JJ commenced by saying at [10]:
The appellants advanced many arguments in support of their appeal in their extensive written and oral submissions. It would be impracticable to attempt to explore at length every one of their complaints. In the circumstances, we propose to adopt the approach taken by other Full Courts in such situations and to confine our reasons to the issues raised that are both significant and consequential (see, e.g. Western Australia v Ward (2000) 170 ALR 159 at 177 – 178.
61 The joint judgment then examined the authorities concerning misfeasance in public office and concluded that the weight of authority is to the effect that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power. They continued at [15]:
In the present case, his Honour made findings of fact which contradicted the existence of any intention to cause harm. Nor, on those findings, could it be demonstrated that any officer knowingly acted in excess of power, or was recklessly indifferent to the harm that was likely to ensue. In our view, no basis for appellate interference with those findings has been made out, especially given the advantage his Honour had in seeing the officers give their evidence.
62 The joint judgment then addressed the cause of action for damages upon the case. It stated that the only remnant of the principle in Beaudesert which survived after Northern Territory v Mengel [1995] HCA 65; (1995) 185 CLR 307 might be cases in which there is liability for harm caused by unlawful acts directed against a plaintiff. The joint judgment said at [16] that the primary judge:
found that all officers who dealt with the appellants carried out their duties conscientiously and in good faith. There was nothing in the evidence to suggest that any actions of the respondents were in any way directed against the appellants. [emphasis in original].
63 The joint judgment then agreed with the primary judge that the Social Security Act did not disclose an intention to confer a private right of action for breach of any of the provisions relied upon by Mr and Mrs Scott, especially given the mechanisms for review of decisions made by the Department provided in the Social Security Act.
64 The joint judgment agreed with the primary judge that there was no common law duty of care to advise Mr and Mrs Scott of the benefits that might be potentially available to them under the Social Security Act.
65 Finally, the joint judgement addressed the claim for damages for negligence for failure to process the claim for benefits with due expedition, and said that there was no basis for such a claim on the facts. And, in any event, a claim for damages for alleged negligence of that kind is not sustainable. Finkelstein J, the third member of the Court, agreed with the joint judgment save in respect of the question whether there existed a common law duty of care as alleged. He did not accept that, on the facts in this case, the way in which the Department dealt with Mrs Scott’s claim for SB was in breach of any duty of care. But, he said that a duty of care would exist both in the manner in which a claim is processed and for the failure to process a claim with due expedition. This followed, he said, because it was reasonably foreseeable that a person who is wrongly deprived of a benefit to which they are entitled, or who endure unreasonable delay of receipt of a benefit, may suffer physical harm.
66 The Court unanimously dismissed the appeal.
Scott & Anor v Secretary, Department of Social Security M112/00 (Callinan and Kirby JJ)
67 On 10 August 2001 the High Court dismissed Mr and Mrs Scott’s application for special leave to appeal against the judgment of the Full Court. On behalf of the Court, Kirby J said:
even if, as Justice Finkelstein in the Full Court concluded, the respondent owed the applicants a duty of care as they allege, no breach of any such duty was established in this case. The Full Court of the Federal Court was correct to so hold. No other foundation is established to warrant a grant of special leave to appeal and special leave must therefore be refused.
Scott v Pedler & Ors [2003] FCA 650 (Gray ACJ)
68 On 13 June 2001, Mr and Mrs Scott applied for injunctions, declarations and damages, both exemplary and aggravated, against Ms Pedler, Ms Williams and Ms Chrystal. They challenged the failure to review a refusal to grant Mr Scott DSP, a failure to grant Mrs Scott SB and a failure to change the rate of SB paid to Mr Scott.
69 Gray ACJ, at [2] – [3], recounted the facts which were substantially those recorded in the previous proceedings. His Honour set out the claims made by Mr and Mrs Scott and the responses to those claims ([27] – [41]). Mr and Mrs Scott relied on a duty of care owed by the respondents to Mrs Scott under statute, common law, or otherwise to decide her claims with due expedition. The statement of claim was amended to raise issues against Mr Peak and Mr McLeod. It was alleged that they determined that Mrs Scott had no physical impairment even though they had no medical qualifications and had not examined Mrs Scott. Further, it alleged that they had disregarded her loss of physical functions, and had rejected professional medical opinions supplied by Mr and Mrs Scott. Mr and Mrs Scott alleged that the respondents knew or should have known that DSP was payable to her from 28 January 1993. They claimed the rejection of DSP was in breach of a statutory and common law duty of care and was unlawful. Similarly, the refusal to grant SB was said to be in breach of common law and statutory duties of care and was unlawful.
70 Then it was alleged that the respondents knew that Mrs Scott was entitled to DSP from 28 January 1993 and that she did not need to make a further claim in 1995. It was alleged that the respondents wilfully acted against Mrs Scott by assessing her impairment at nil and by approving Mr Peak’s decision to that effect. Mr and Mrs Scott alleged that their absolute rights had been infringed by the respondents refusing Mrs Scott SB in July and August 1995 and thereby denying Mr and Mrs Scott a livelihood.
71 They further alleged that the respondents were ‘wilfully … killing the applicants with starvation and was hindering the preparation of medical evidence by the applicants’ and forcing Mrs Scott, by starvation, to make a second claim for DSP which she did not want to do.
72 General, special, aggravated, and exemplary damages were claimed. Exemplary damages were claimed because:
* the governmental 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;
73 His Honour described the way in which Mr and Mrs Scott had raised the question of the inadequacy of the medical reports of medical practitioners to whom Mrs Scott had been referred by the Department. He said at [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.
74 His Honour first rejected Mr and Mrs Scott’s claim for injunctions or declarations for breaches of alleged duties to grant them DSP or SB. The Act made the grant of benefits dependant on the satisfaction by the Secretary and provided three levels of review of the decisions made on the claims. In these circumstances it was not intended that the Act could be bypassed by the Court making declarations or granting injunctions. To overcome this problem Mr and Mrs Scott sought declarations and injunctions in a form unrelated to their specific circumstances. His Honour held that such declarations were not declarations of right as no legal consequence would flow from them. The Court would not make declarations to express general condemnation of a person’s conduct. Further, the declarations sought had no foundation in law because they relied upon the existence of duties imposed or restrictions placed on the decision makers under the Social Security Act, which duties or restrictions his Honour held did not exist. For instance, there was no restriction preventing officers of the DSS from requiring Mr and Mrs Scott to test their entitlement by applying for other benefits.
75 His Honour then held that he was bound by the appeal judgment in Scott v Secretary, Department of Social Security [2000] FCA 1241 to hold that the Social Security Act did not confer on Mr and Mrs Scott a private right of action sounding in damages. The claim by Mr and Mrs Scott based on a breach of statutory duty failed for that reason. His Honour added that even if he were not bound by that judgment, he would hold that the claim would not succeed on the facts of this case.
76 His Honour next dealt with the claim based on a common law duty of care. He said that he was bound by the majority judgment in Scott v Secretary, Department of Social Security [2000] FCA 1241 to hold that there was no general common law duty of care to advise Mr and Mrs Scott of the benefits which might be available under the Social Security Act or to deal with their application at or by any particular time or times. He determined to deal with the issue more fully because of the division of opinion in the Full Court in Scott v Secretary, Department of Social Security [2000] FCA 1241, because the majority judgment might not extend to duties of officers under the Social Security Act more generally, and it may be that an analysis of the Social Security Act needed to be undertaken separately in relation to each alleged duty of care as wider duties were pleaded in this case than in Scott v Secretary, Department of Social Security [2000] FCA 1241.
77 His Honour then said that the relationship between the officers of the Department and Mr and Mrs Scott as claimants for benefits under the Social Security Act were of such a nature as could give rise to a duty of care. However, his Honour regarded the requirement under the Social Security Act that the decision maker be satisfied that benefits should be paid, and the provision of several levels of review of those decisions as fundamentally inconsistent with the notion that an unsuccessful claimant should be entitled to sue for damages for negligence. His Honour thus rejected the claim based on a common law duty of care.
78 His Honour went on to consider whether, if Mr and Mrs Scott were able to sue for a breach of duty, there had been any breach of duty.
79 His Honour said that there was no absolute duty on the respondents to decide that Mrs Scott was entitled to DSP or SB. There was no entitlement unless the Secretary of the Department or the delegate of the Secretary was satisfied that Mrs Scott fulfilled the necessary criteria. Ms Pedler was not so satisfied. Ms Chrystal was satisfied and consequently the SB was paid to Mrs Scott.
80 Further, there was no absolute duty on the respondents to review the decisions of Mr McLeod or Mr Peak refusing to grant DSP to Mrs Scott. The Social Security Act granted a power to review only where the Secretary or delegate was satisfied there was a reason to review the decision.
81 Then, his Honour considered that, if there was a common law duty of care, it could only require the respondents to take reasonable care in the performance of their functions under the Social Security Act. It was not an absolute duty. His Honour found that each of the respondents acted reasonably in performance of their functions under the Social Security Act. He also found that if there was a duty to deal with Mrs Scott’s claim for SB reasonably promptly, there was no breach of that duty.
82 His Honour next dealt with the causes of action involving intentional infliction of harm. These were identified in the statement of claim as “the Beaudesert principle”, trespass, trespass on the case, misfeasance in public office, intentional infliction of personal injury, infringement of absolute rights and acting otherwise contrary to law and unlawfully. His Honour said that there was no claim or evidence to support the causes of action in trespass whether to the person or to goods or land. The Beaudesert principle was overruled in Northern Territory v Mengel [1995] HCA 65; (1995) 185 CLR 307 subject only to the qualification that there may be liability for harm caused by unlawful acts directed against an applicant. To the extent that this tort exists in Australia it requires an intention on the part of the alleged tortfeasor to injure. Mr and Mrs Scott could not succeed on this cause of action because his Honour found that no such intention existed on the part of any of the respondents. In the context of the discussion of the claims of intentional wrongdoing, his Honour again rejected the claim for infringement of absolute rights because he held that Mrs Scott had no absolute right under the Social Security Act to receive DSP or SB, or to have the decisions of Mr Peak or Mr McLeod relating to DSP reviewed. Further, there was no absolute right to have the decision on the claim for SB made within a particular time.
83 His Honour then considered the claim that the respondents engaged in misfeasance in public office. His Honour relied upon the following statement of the elements of the tort summarised by Smith J in Tahche v Abboud [2002] VSC 42 [at 16-19]:
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.
84 In relation to Ms Pedler his Honour said at [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.
85 In relation to Ms Williams, his Honour accepted that she had negative views about Mr and Mrs Scott but he found at [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.
86 As to Ms Chrystal, his Honour said at [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.
87 His Honour concluded at [89] – [90]:
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.
88 Thus, his Honour rejected all of the claims of Mr and Mrs Scott based on the allegation of intentional infliction of harm.
89 Although his Honour reached conclusions adverse to Mr and Mrs Scott to this point which meant that their application would be dismissed, his Honour gave consideration to the heads of damages claimed.
90 Mr and Mrs Scott claimed general damages because they said 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. His Honour said that there was no independent medical evidence concerning the effect on the health of Mr and Mrs Scott of their circumstances. Without such evidence his Honour was unable to arrive at a figure for general damages.
91 The other consideration concerning damages which may be relevant to the present matter related to the claim for aggravated and exemplary damages. His Honour said at [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.
92 His Honour then dismissed the application and ordered Mr and Mrs Scott to pay the costs of the application. He explained his approach to the question of costs at [99] as follows:
… 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.
Scott v Pedler [2004] FCAFC 67 (Gyles, Conti and Allsop JJ)
93 Mr and Mrs Scott appealed against the orders made by Gray ACJ. The appeal was dismissed. Conti J (with whom Gyles and Allsop JJ agreed) set out three essential reasons for dismissing the appeal. First, the previous Full Court in Scott v Secretary, Department of Social Security [2000] FCA 1241 was authority for the view that the Social Security Act did not evince an intention to confer a private right of action for breach of statutory duty. He explained that the authority of the judgment was not overcome in this case:
by resort to subsequent legal action framed against the three officers of the DSS in person as respondents, in lieu of the Secretary of the Department (the respondent of course to the previous unsuccessful Scott litigation). The Secretary alone is designated by ss 207 and 208 of the Act effectively as the decision-maker in respect of social security claims.
94 Second, the majority in Scott v Secretary, Department of Social Security [2000] FCA 1241 determined that there is no common law duty of care which required the Department to inform Mr and Mrs Scott of the potential benefits available to them under the Social Security Act.
95 Third, the following findings of fact made by Gray ACJ were decisive against Mr and Mrs Scott’s success on the appeal:
(i) the reasonableness of the conduct of each of the respondents in the performance of their respective roles or functions as officers of the DSS in addressing Mrs Scott’s claims (and also the claim of Mr Scott) for social security benefits (see [66] –[68] above);
(ii) the absence of intent on the part of each of the respondents to harm Mr and Mrs Scott by an unlawful act, it being irrelevant that the act may have been beyond power (see [71] above);
(iii) the absence of any conduct constituting misfeasance in public office on the part of Ms Pedler, and on the contrary, the undertaking of her duties in relation to Mr and Mrs Scott with honesty and without intention to injure and without reckless indifference to the exercise of power (see [72] - [74] above);
(iv) the absence of misfeasance in office on the part of Ms Williams, including any committal of deliberate falsehoods, or any harbouring of improper or ulterior purposes or of any intention on her part to injure or harm Mrs Scott, but on the contrary, the existence of a motivation of Ms Williams to assist Mrs Scott in the resolution of her social security entitlements (see [73] and [75]-[76] above);
(v) the absence of any misfeasance in office on the part of Ms Chrystal, including carelessness, improper motive or ulterior purpose on the part of Ms Chrystal, and the absence of any intention on her part to injure Mrs Scott, and of any performance of her statutory functions other than honestly (see [72] and [77] above);
(vi) as to each of the respondents, the absence on their part of any purpose of preventing Mrs Scott from succeeding in her claim for the DSP, and in particular by way of depriving her of the time Mrs Scott needed to gather more medical evidence, and the absence also of any invalid exercise or purported exercise of any powers, or of any want of procedural fairness in exercising any powers, or of acting in relation to Mr and Mrs Scott for any improper purpose (see [78] – [79] above); and
(vii) further as to each of the respondents, the absence of any conduct undertaken for an improper purpose, or which took into account irrelevant or unreasonable considerations, or which evinced any ulterior motive or intent to cause injury; moreover the absence of any knowledge of, or reckless indifference, to the doing of any act or undertaking of any course of conduct if, contrary to his Honour’s findings, any of the respondents did have knowledge of any absence of power, or else exercised any power with reckless indifference (see again [79] above).
96 Gyles J at [2] to [5] added:
2 The reasons of Gray ACJ and Conti J each demonstrate that this proceeding was effectively doomed to failure by the decision in Scott v Secretary, Department of Social Security [2000] FCA 1241, 65 ALD 79. Indeed, the present proceeding is in substance, if not in form, an abuse of the process of the Court which has needlessly vexed the individual respondents over a long period. As remarked by Gray ACJ in his judgment at [99]:
‘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.’
3 Besides the personal strain occasioned to the individuals is the distraction from duty of those individuals and the direct costs to the Department of participation in a series of hearings. The initial hearing of the case against the Department before Heerey J extended over four days, the appeal to the Full Court two days and the special leave application a further day. Naturally, counsel was briefed on all occasions, with senior and junior counsel briefed to oppose the grant of special leave. The present case extended over seven days at first instance and two days on appeal, with counsel briefed on each occasion.
4 That account also gives some idea of the resources of the Court which have been engaged in disposing of these cases, to which must be added interlocutory processes, preparation for hearing and judgment writing.
5 This case is a good illustration of the havoc which can be wreaked by determined and resourceful but impecunious litigants with a sense of grievance. Orders for costs are no deterrent.
Scott v Pedler M83 of 2004 (Hayne & Crennan JJ)
97 Mr and Mrs Scott sought special leave in the High Court to appeal against the orders of the Full Court. The application was dismissed on 14 December 2005 by Hayne and Crennan JJ. They held that there was no reason to doubt the correctness of the judgment of the Full Court.
The previous complaint to the Commission and the proceedings which followed
98 In order to understand part of the Commonwealth’s submissions relevant to this judgment, it is necessary to complete the picture of the litigation brought by Mr and Mrs Scott.
99 On 29 May 2006, Mr and Mrs Scott made a complaint to the Commission that judgments of the High Court and the Federal Court, and actions of Centrelink, violated their human rights as set out in the ICCPR, the DRDP and the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. The Commission refused to inquire into this complaint. In relation to the complaints against the Courts, the Commission said that the complaint was misconceived within the terms of s 20(2)(c)(ii) of the Australian Human Rights Commission Act because the Commission had no authority to inquire into the activities of courts. In relation to the complaint against Centrelink, the Commission said that the matters had been adequately dealt within the terms of s 20(2)(c)(iii) of the Australian Human Rights Commission Act in the two proceedings commenced in the Federal Court.
100 Mr and Mrs Scott then applied to the Federal Court for an order for review of the decision of the Commission. On 4 December 2006, Sundberg J transferred the application to the Federal Magistrates Court. In that application Mr and Mrs Scott relied on almost all of the grounds of review in s 5(2) of the ADJR Act, and also said that the Commission decision denied them an effective remedy contrary to the requirements of Art 2(3)(a) and (b) of the ICCPR.
101 On 2 March 2006, the Commonwealth applied for summary dismissal of the application brought by Mr and Mrs Scott. This application was successful and on 18 October 2007, the Federal Magistrate dismissed the application for review brought by Mr and Mrs Scott. The Federal Magistrate said at [29] – [30]:
29. No reasonable basis exists for arguing that the commission was not entitled to come to the conclusion it did. Two judges of the Federal Court heard evidence given by all involved. They found no cause for complaint against the Department or its officers, in fact the contrary. Appeals against the decisions were dismissed. The commission relied on those cases and the findings made in coming to its conclusion. There is no reasonable argument that the Commission, in doing so, took into account anything other than what was relevant or that there was an improper exercise of power.
30. The commission decided that the claims against the courts are misconceived because it has no authority to inquire into the activities of courts. In Ex parte Nguyen (1998) 196 CLR 254 the High Court dealt with a claim that a Magistrate and a Chief Judge had discriminated against a litigant on the basis of race. The High Court referred to the immunity from suit which protects judicial officers from actions arising out of the judicial function. They said there was nothing in the Race Discrimination Act that suggests that Parliament intended to override the immunity. The same reasoning applies to the Human Rights and Equal Opportunity Commission Act.
102 Mr and Mrs Scott then sought leave to appeal to the Federal Court from the orders made by the Federal Magistrate. Kenny J summarised the submissions of Mr and Mrs Scott at [11] – [12]:
11 The applicants filed submissions in support of their application. So far as is relevant, the applicants’ submissions may be summarised as follows. The applicants submitted that the Federal Magistrate erred in:
• accepting that s 20(2)(c)(iii) empowered HREOC to decline to investigate a matter simply on the grounds that “judges heard evidence and made findings”;
• accepting that “[t]wo judges of the Federal Court heard evidence given by all involved” when two officers, Mr Peak and Mr McLeod, had not in fact given evidence;
• failing to have regard to “incontrovertible documentary” evidence that is said to establish that Mr Peak and Mr McLeod committed the tort of “fraudulent representation” and also “contravened human rights”, that Centrelink had tortured and used cruel, inhuman and degrading treatment by denying a benefit; and
• failing to have regard to new evidence in relation to Centrelink’s rejection of the second applicant’s application for a special benefit.
12 In oral submissions, Mrs Scott developed the applicants’ case for leave to appeal, submitting that the Federal Magistrate erred in failing to recognise that HREOC erred because:
• the decisions of the Federal Court and High Court upon which HREOC relied were flawed and contrary to the documentary evidence. HREOC was said to have erred in failing to examine the adequacy of these decisions, alternatively, in acting under dictation in accepting the decisions of the courts without conducting its own investigation; and
• the “subject matter” of the decisions of the Federal Court and High Court was not the same as the subject matter of the complaint to HREOC, because the complaint to HREOC related to allegations of breaches of human rights and the decisions had not dealt with those matters.
103 Kenny J refused leave to appeal on the basis that the judgment of the Federal Magistrate was not attended by sufficient doubt to warrant it being reconsidered. Her Honour said at [19] – [20]:
19 The central difficulty for the applicants is that, for the most part, the underlying conduct about which they complain has already been the subject of comprehensive judicial consideration. Although the applicants now formulate their claims before HREOC as violations of their human rights, there is no doubt that they continue to attack (though by another route) the conduct of Centrelink in refusing to grant Mrs Scott a Special Benefit. In this Court and the High Court, Centrelink’s conduct regarding Mr and Mrs Scott has been the subject of the following decisions:
• Scott v Secretary, Department of Social Security [1999] FCA 1774 (Heerey J);
• Scott v Secretary, Department of Social Security [2000] FCA 1241 (Beaumont, French and Finkelstein JJ);
• Scott & Anor v Secretary, Department of Social Security M112/00 (Callinan and Kirby JJ) (special leave refused);
• Scott v Pedler [2003] FCA 650 (Gray ACJ);
• Scott v Pedler [2004] FCAFC 67 (Gyles, Conti and Allsop JJ); and
• Scott & Anor v Pedler & Ors M83 of 2004 (Hayne and Crennan JJ) (special leave refused).
20 In effect, the applicants have asked HREOC to examine the decisions of this Court and the High Court concerning their claims against Centrelink. For the most part, the judgments of this Court have been the subject of appeal or application for special leave to appeal. That is, they have already been the subject of examination and consideration by another court in the court hierarchy. Paragraph 20(2)(c)(iii) enables HREOC to decline to investigate a complaint where HREOC is of the opinion that the subject matter of the complaint has been adequately dealt with. HREOC may so conclude where the subject matter of the complaint has already been the subject of scrutiny by another person or body (such as a court). The applicants have been unable to point to anything in the present case that might raise an arguable ground for judicial review in respect of HREOC’s decision to decline to inquire on the basis of an opinion formed in accordance with s 20(2)(c)(iii) of the HREOC Act. No error would appear in the Federal Magistrate’s decision in this regard.
104 Her Honour then said that it was open to the Commission to consider that the principle of judicial immunity prevented it from undertaking the inquiry which Mr and Mrs Scott sought into the complaints against the Courts. The Commission was thus entitled to come to the view that the complaint was misconceived in this respect. No error was demonstrated in the Federal Magistrates judgment to uphold the decision of the Commission.
105 Following the rejection by Kenny J of Mr and Mrs Scott’s application for leave to appeal, the Commonwealth asked the Federal Magistrates Court to act on its own motion under Rule 13.11(1) of the Federal Magistrates Court Rules 2001 which provides:
If the Court is satisfied that a person has instituted a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian Court (whether against the same person or against different persons), the Court may order:
(a) that any proceeding instituted by the person may not be continued without leave of the Court; and
(b) that the person may not institute a proceeding without leave of the Court.
106 Applying Attorney General (Vic) v Wentworth (1998) 14 NSWLR 481, the Federal Magistrate held that a vexatious proceeding was one that is so obviously untenable or manifestly groundless as to be utterly hopeless. The Federal Magistrate found that all the proceedings from and including the second proceeding brought by Mr and Mrs Scott in the Federal Court met this definition, and further, that Mr and Mrs Scott had relitigated issues which had already been decided and which they had no hope of reopening. The Federal Magistrate held that this constituted habitual and persistent conduct. On 6 February 2009, the Federal Magistrate made an order under Reg 13.11(1)(b) that Mr and Mrs Scott, or either of them, shall not without the leave of a Federal Magistrate institute any proceedings in the Federal Magistrates Court of Australia.
The grounds of the current application for review
107 Mr and Mrs Scott have produced a written version of all of the events concerning their disputes over their applications for DSP and SB. They usually reproduce this description whenever called upon to file an application, affidavit or submission. It has been necessary for the Court to try to have Mr and Mrs Scott focus on the legal basis for the current application and clarify the facts relevant to the legal contentions rather than simply restating all the facts of their dispute.
108 Mr and Mrs Scott rely on the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and s 39B of the Judiciary Act 1903 (Cth) as conferring on the Court the power to entertain the challenge to the decision of the Commission. The Court required Mr and Mrs Scott to explain precisely which grounds of challenge they relied upon, and the basis of their application on each ground. In the result, Mr and Mrs Scott have been permitted to have several attempts to state their case in a legally comprehensible form. They have been given leave to amend their application for review on several occasions. The last form of the amended application was filed on 27 April 2010.
109 Mr and Mrs Scott have not been legally represented. The latest amended application bears signs of the lack of their legal understanding. It is necessary in these circumstances for the Court to ensure that they are not unfairly prejudiced by their lack of legal skills and ensure that no available legal basis for their claims is overlooked as a result of their failure to understand the law. The way in which Mr and Mrs Scott finally challenge the decision of the Commission is explained in the following paragraphs.
110 Mr and Mrs Scott allege first that the Commission failed to take into account relevant considerations. This appears to raise the ground referred to in s 5(1)(e) and s 5(2)(b) of the ADJR Act. Mr and Mrs Scott say that the Commission failed to take into account that there had been no judicial consideration during the course of the protracted litigation:
1 (a) Of the conduct of Dr Paulson, the SSAT, Mr McLeod, and Mr Peak.
(b) The human rights breaches with which the AHRC Act is concerned.
(c) New evidence given by Ms Chrystal on 7 October 1999, in the course of the hearing of VG666 before Heerey J that, when she made her decision, she knew of the medical evidence relied upon by Mr and Mrs Scott which demonstrated that Mrs Scott had an impairment exceeding 20%.
111 The allegation seems to be that each of these matters was relevant to the decision of the Commission, and that the Commission failed to take each of them into account when refusing to inquire into the complaint.
112 Next, Mr and Mrs Scott say that the decision of the Commission was based on the existence of a particular fact and that fact did not exist. This ground seems to rely on s 5(1)(h) and s 5(3)(b) of the ADJR Act. Mr and Mrs Scott say that the decision of the Commission was based on the fact that the previous judicial considerations of their case addressed all issues adequately, but that fact did not exist because the judicial decisions did not address the issues adequately.
113 Thirdly, Mr and Mrs Scott say that the Commission exercised a discretionary power at the direction or behest of another. This ground appears to rely on s 5(1)(e) and s 5(2)(e) of the ADJR Act. Mr and Mrs Scott say that the Commission deferred to the judgments of the Court without making up its own mind on the merits of their complaint.
114 Fourthly, Mr and Mrs Scott say that the decision of the Commission was affected by apprehended bias because Ms Toohey rejected the previous complaint made by Mr and Mrs Scott to the Commission. This ground appears to rely on s 5(1)(a) of the ADJR Act.
115 Fifthly, Mr and Mrs Scott say that a breach of the rules of natural justice occurred in connection with the making of the decision. This ground appears to rely on s 5(1)(a) of the ADJR Act. Mr and Mrs Scott say that in other cases the Commission has found that withdrawal of food and shelter was a breach of human rights. They have been denied justice because the Commission did not recognise that they had been the victims of a breach of Art 7 of the ICCPR.
116 Sixthly, Mr and Mrs Scott say that the exercise of power by the Commission was so unreasonable that a reasonable decision maker could not have arrived at the decision. This ground appears to rely on s 5(1)(e) and s 5(2)(g) of the ADJR Act. Mr and Mrs Scott explained this ground by incorporating [1] and [2] of an earlier version of their amended application for review dated 10 March 2009 which stated:
1. Applicants are being denied, in breach of arts.7 and/or 26 together with art.2 of the ICCPR, of an effective financial compensation for cruel, inhuman, degrading treatment and/or distinctive treatment, not justified by an reasonable and objective grounds, and for lack of equality before the law caused by no grant of a disability support pension by the Commonwealth of Australia to the Second Applicant for 6 times and for 4 years.
2. Applicants are being denied, in breach of arts.7 and 2 of the ICCPR, of an effective financial compensation for torture, cruel, inhuman and/or degrading treatment, and, in breach of arts.3, 7, 10 of the DRDP, compensation for:
• intentional (coercion) and/or negligent withdrawal of food and/or shelter before and after the grant of special benefit, that was pleaded to be the payment of last resort,
• withdrawal of food and/or shelter while the Commonwealth of Australia knew that the Second Applicant was preparing an appeal against its decision,
• rejection of the professional medical opinions, of the professional opinions of medical specialists, and of objective medical evidence by the lay Commonwealth (Centrelink) officers and by the Social Security Appeals Tribunal (“SSAT”),
• knowingly rejecting physical impairment on the not existing report of the Commonwealth Medical Officer,
• rejection of the X-ray evidence on the knowingly unreasonable ground that personal examination of a patient must be made,
• about 32 actions diminishing the level of physical impairment,
• deceit,
• abuse of psychiatry.
117 As a further explanation of the basis of this ground Mr and Mrs Scott referred to their written submission dated 27 April 2010 and filed in the Court. This document was produced in response to the requirement of the Court that Mr and Mrs Scott identify which facts in the complaint to the Commission relate to which alleged human rights breaches. The document which Mr and Mrs Scott produced did not achieve this purpose. It stated the provisions relied upon by Mr and Mrs Scott but did not identify with any particularity the facts which constituted the alleged violations of their rights. In the present context, the reference to the document amounts to no more than a record of the various provisions which Mr and Mrs Scott say were breached, namely, Arts 7, 14 and 26 of the ICCPR, Arts 3, 7 and 10 of the DRDP, s 9 of the Racial Discrimination Act, and Art 5(e)(iv) of the ICEFRD. These provisions are set out in the next section of these reasons.
118 Seventhly, Mr and Mrs Scott say that the decision of the Commission was otherwise contrary to law. This ground appears to rely on s 5(1)(j) of the ADJR Act. Mr and Mrs Scott say that the Commission erred in law by failing to inquire into the allegation of unlawful discrimination. The reference to unlawful discrimination appears to be a reference to that term as defined in the Australian Human Rights Commission Act and, so far as is relevant to this case, to the alleged breach of Art 5(e)(iv) of the ICEFRD.
Human rights violations alleged by Mr and Mrs Scott
119 The complaint to the Commission did not identify the source of the particular human rights, which Mr and Mrs Scott allege had been violated. It was only in the submissions to this Court dated 27 April 2010, that Mr and Mrs Scott identified the sources of the human rights which they contend on all the facts had been violated and which made the refusal of the Commission to inquire into this complaint so unreasonable that no reasonable decision maker would have so decided. In so far as those sources have not been set out earlier in these reasons. They are as follows:
International Covenant on Civil and Political Rights
120 Article 7
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
121 Article 14
1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The Press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality;
(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;
(g) Not to be compelled to testify against himself or to confess guilt.
4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.
5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.
6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non disclosure of the unknown fact in time is wholly or partly attributable to him.
7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
122 Article 26
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Declaration on the Rights of Disabled Persons
3. Disabled persons have the inherent right to respect for their human dignity. Disabled persons, whatever the origin, nature and seriousness of their handicaps and disabilities, have the same fundamental rights as their fellow citizens of the same age, which implies first and foremost the right to enjoy a decent life, as normal and full as possible.
7. Disabled persons have the right to economic and social security and to a decent level of living. They have the right, according to their capabilities, to secure and retain employment or to engage in a useful, productive and remunerative occupation and to join trade unions.
10. Disabled persons shall be protected against all exploitation, all regulations and all treatment of a discriminatory, abusive or degrading nature.
The application for dismissal under s 31A Federal Court of Australia Act
123 The question to be determined is whether Mr and Mrs Scott have a reasonable prospect of successfully prosecuting their application for a review of the decision of the Commission not to inquire further into their complaint. The application for review also includes their application to set aside each of the Federal Court judgments in Scott v Secretary, Department of Social Security, Scott v Pedler and Scott v HREOC.
124 The Commonwealth argues that the Commission made no legal error in forming the opinion required under s 20(2)(c)(iii) of the Australian Human Rights Commission Act that the subject matter of the complaint had been adequately dealt with by the Courts in the litigation brought by Mr and Mrs Scott. It contends that Mr and Mrs Scott have no reasonable prospect of prosecuting this application and thus the application should be dismissed.
125 Mr and Mrs Scott’s arguments opposing the dismissal of the proceeding are scattered throughout voluminous written material including written submissions and affidavits, and are not distilled into a form which readily identifies the main contentions made by them. The best effort I can make reveals four categories of argument concerning the decision of the Commission. Mr and Mrs Scott say that they have a reasonable prospect of succeeding on the arguments that:
a. The subject matter of the complaint has not been dealt with in the previous litigation because no court has considered whether the Commonwealth violated Mr and Mrs Scott’s human rights;
b. The subject matter of the complaint has not been dealt with in the litigation because some of the matters of complaint were omitted from consideration by the courts, or were not previously raised by Mr and Mrs Scott;
c. The subject matter of the complaint has not been dealt with adequately by the court because the judgments of the Courts are wrong; and
d. The decision of the Commission should be set aside on the grounds available under the ADJR Act because: the Commission failed to take into account relevant considerations, the decision was based on facts which did not exist, the Commission acted at the behest of another, the decision was made in breach of the requirements of natural justice, the exercise of power by the Commission was so unreasonable that no reasonable decision maker could have exercised the power in that way, and the decision was otherwise contrary to law.
126 Consequently, Mr and Mrs Scott submit that they have a reasonable prospect of success in the application for a review of the decision of the Commission. Each of the four categories of argument will now be addressed. Then the question will be considered whether Mr and Mrs Scott have a reasonable prospect of prosecuting their application to set aside the judgments in Scott v Secretary, Department of Social Security, Scott v Pedler and Scott v HREOC and to reopen the litigation.
The subject matter of the complaint has not been dealt with in the litigation because no Court has considered whether the Commonwealth violated Mr and Mrs Scott’s human rights
127 The legal character of the particular acts or omissions about which complaint was made was left largely unstated in the letter of complaint dated 14 February 2008. This deficiency was remedied by the further letter dated 17 March 2008 which added an introductory passage to the summary of the matters of central concern, and characterised them as a breach of human rights (see the highlighted part of the passage extracted at [29] of these reasons), and concluded by asking the Commission to consider breaches of the rights to freedom from torture or cruel, inhuman and/or degrading treatment, to be treated fairly and equally, to welfare assistance, and to adequate food and shelter.
128 The judgments of the Court in Scott v Secretary, Department of Social Security, Scott v Pedler and Scott v HREOC did not consider whether the alleged acts and omissions amounted to breaches of human rights. Mr and Mrs Scott contend that it cannot be said that the litigation adequately dealt with the subject matter of the complaint when the litigation did not consider the legal character of the conduct about which complaint was made.
129 This contention raises the question of the meaning to be given to the term ‘subject matter’ of the complaint in s 20(2)(c)(iii) of the Australian Human Rights Commission Act. The term may refer to the conduct underlying the complaint, or it may refer to that conduct and also its character as ‘inconsistent or contrary to any human right’.
130 A complaint under s 20(1)(b) of the Australian Human Rights Commission Act arises when a person aggrieved by an act or practice alleges that the act or practice is inconsistent with or contrary to any human right. That description suggests that the subject matter of the complaint involves both the acts and omissions alleged, and their character as inconsistent with or in contravention of a human right. If this construction were correct, s 20(2)(c)(iii) would have a fairly limited application. It would only apply to cases where a court had examined conduct which might also amount to a breach of human rights. This construction would allow the Commission to refuse to inquire only where the court had examined not only the underlying conduct as amounting to a breach of the common law or statute, but also where it had examined the conduct for compliance with human rights provisions.
131 The policy which lies behind s 20(2)(c)(iii) is to allow the Commission to take account of the views of other bodies from which remedies are claimed in determining whether there is any good purpose to inquire into the alleged breach of human rights. The policy is designed to avoid wasteful duplication of the examination of alleged breaches of human rights. That policy is not served by the construction which holds that the subject matter of a complaint includes not only the underlying conduct about which complaint is made but also its legal character. Such an interpretation would mean that in a case like the present where several courts have heard evidence and made findings that the alleged conduct did not occur, the Commission would not be able to refuse to inquire into the conduct under s 20(2)(c)(iii). This is an unlikely outcome.
132 Furthermore, such a construction takes no account of the function of the word ‘adequately’ in s 20(2)(c)(iii). The requirement that the subject matter has been ‘adequately’ dealt with in the context of the Australian Human Rights Commission Act requires the Commission to assess whether the conduct has been dealt with elsewhere in a way which is appropriate having regard to the human rights provisions in that Act. On this view, where a court has determined that the underlying conduct did not occur, it is open to the Commission to conclude that the subject matter of the complaint has been adequately dealt with even though the court has given no consideration to the legal character of the conduct as conduct inconsistent with or contrary to human rights.
133 It follows from this discussion that the fact that the Court in Scott v Secretary, Department of Social Security and Scott v Pedler did not consider whether the conduct alleged was in breach of Mr and Mrs Scott’s human rights was no barrier, on its own, to the Commission forming the opinion that the subject matter of the complaint had been adequately dealt with by the Courts in those cases. To the extent that Mr and Mrs Scott argued to the contrary, that argument should not be accepted.
The subject matter of the complaint has not been dealt with in the litigation because some of the matters of complaint were omitted from consideration by the Courts, or were not previously raised by Mr and Mrs Scott
134 The document entitled ‘Facts of the Complaint / Claim’ attached to the letter of complaint dated 14 February 2008 details the many circumstances surrounding the central events of concern which were the rejection of Mrs Scott’s 1993 DSP application and the rejection of her 1995 SB application, and physical and mental damage alleged to have been caused by the Commonwealth in the course of these two rejections.
135 The particular acts or omissions about which Mr and Mrs Scott complain are summarised in the letter of complaint itself. This summary is extracted at [19] of these reasons. Then, at [21] – [28] of these reasons, there is an attempt to elucidate the fairly cryptic summary by reference to the ‘Facts of the Complaint / Claim’ document. Reduced to their essentials, the particular central concerns of the complaint can be described as follows:
despite knowing that Mrs Scott had an impairment of more than 20%, officers of the Department dishonestly refused to recognise her level of impairment in order to deny her DSP and SB.
Ms Chrystal dishonestly attempted to force Ms Scott to undergo psychiatric examination.
despite knowing that Mrs Scott suffered various impairments, officers of the Department dishonestly refused to record those impairments in the medical reports necessary to claim DSP.
officers of the Department intentionally denied Mrs Scott SB in order to starve her and thereby hinder her from pursuing her appeal to the SSAT against the rejection of her DSP application.
136 When considering the allegation that certain parts of the subject matter of the complaint were omitted from consideration by the Courts it is appropriate to define that subject matter by reference to these central concerns. They are matters which Mr and Mrs Scott have identified from the wide ranging and extensive allegations as factors which lie at the heart of their concern. Mr and Mrs Scott have shown in the conduct of the case that they are well able to articulate the issues which trouble them. Unless some limitation is placed on the scope of this argument, the Court would need to delve into the entire circumstances contained in the ‘Facts of the Complaint / Claim’ document. This course would be quite impracticable. Consequently, consideration is confined to the issues of central concern in the complaint.
137 The first issue raised by the complaint is that the Courts did not consider the allegation that officers of the Department and the SSAT dishonestly refused to recognise the level of Mrs Scott’s impairment in order to deny her benefits. There is no substance in this argument. Gray ACJ in Scott v Pedler considered and rejected the allegation in respect of Mrs Pedler and Ms Williams. Then, in relation to Mr McLeod and Mr Peak, his Honour granted Mr and Mrs Scott leave to add them as respondents. Mr and Mrs Scott took no further step to proceed against them. The involvement of Mr McLeod and Mr Peak was considered to the extent which Mr and Mrs Scott asked the Court to do so.
138 As to the role of the SSAT, both Heerey J and Gray ACJ referred to the decision of the SSAT, which affirmed the rejection of DSP. They also referred to the appeal from the SSAT to the AAT, and to the decision of the AAT to grant Mrs Scott DSP, which outcome was conceded by the Department. Thus, the role of the SSAT was considered in both Scott v Secretary, Department of Social Security [1999] FCA 1774 at [68] – [70] and in Scott v Pedler [2003] FCA 650 at [12]. Gray ACJ referred at [65] to s 1338(1) of the Social Security Act which provides immunity to members of the SSAT. No relief was sought against the SSAT. Thus, the Courts considered the role of the SSAT in the way in which Mr and Mrs Scott raised the issue before the Courts.
139 The next argument is that the allegation that Ms Chrystal acted dishonestly to force Mrs Scott to undergo a psychiatric examination was not considered by the Courts. Again, this contention cannot be maintained. Gray ACJ heard evidence from Ms Chrystal and determined that very point. His Honour accepted her evidence and rejected the allegation that she had acted dishonestly. His finding is extracted at [86] of these reasons.
140 The third issue raised in the complaint concerns the alleged failure of the Commonwealth Medical Officer to record on the medical report forms required for the benefit application the impairments suffered by Mrs Scott. This matter was raised before Gray ACJ and referred to by his Honour in the passage extracted at [73] of these reasons. No relief was sought arising from this occurrence. This is presumably because events overtook the original assessment made by Dr Paulson, the Commonwealth Medical Officer. The relevant events are outlined in detail in [9] – [12] of the judgment of Conti J in the appeal in Scott v Pedler. Dr Paulson made an assessment of nil impairment. She recorded Mrs Scott’s complaints of widespread musculo-skeletal pain and history of asthma. She took into account a lengthy report by Dr Colville who thought that the perceived asthma problem was more social than organic. Dr Paulson also relied upon a report from a respiratory physician, Dr Christine McDonald, who thought that there was no respiratory basis for the alleged asthma condition, although Mrs Scott had a strong conviction that she had the disease. When Mrs Scott attended the Department and was told of the unfavourable decision on her application for DSP, she produced a medical report made by Dr Vera Vrbica on Mrs Scott’s instructions. Dr Vrbica outlined a series of crippling conditions including spinal degeneration, scoliosis, neuralgia, knee and ligament problems, and weak and painful wrists. She also reported that Mrs Scott had asthma and irritable bowel syndrome. She concluded that Mrs Scott should be granted an invalid pension. The Department then sent the report of Dr Vrbica to Dr Paulson for further consideration. Dr Paulson said that she was unable to assess Mrs Scott’s work capacity without a specialist psychiatric opinion. Mr McLeod then made the initial decision to reject the DSP application. He wrote to Mrs Scott on 16 November 1993:
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.
141 Then, Mr Peak, as the authorised review officer, reviewed the decision and decided that the decision not to pay DSP was correct. He wrote to Mrs Scott on 24 November 1993:
I looked at everything you had already given the Department about your claim.
142 Thus, Mr McLeod and Mr Peak considered, inter alia, the medical evidence provided by Mrs Scott, that is to say, the report of Dr Vrbica. This is the medical opinion from which Mr and Mrs Scott say Dr Paulson should have recorded further impairments on her medical report concerning Mrs Scott. That report was taken into account by Mr McLeod and Mr Peak and they were made respondents in Scott v Pedler. One of the complaints made to the Commission by Mr and Mrs Scott is that the impairments reported by Dr Vrbica were not accepted. That concern was raised in the allegations made against Mr McLeod and Mr Peak. Nothing of significance is added by the allegation that Dr Paulson failed to record the impairments noted in the report of Dr Vrbica.
143 Finally, the contention that the Courts did not consider the allegation that Mr and Mrs Scott were intentionally starved by officers of the Department is not supported by the facts. The very issue was considered and rejected in both Scott v Secretary, Department of Social Security and in Scott v Pedler.
The subject matter of the complaint has not been dealt with adequately by the Courts because the judgments of the Courts are wrong
144 Some of the submissions made by Mr and Mrs Scott seek to reargue the merits of some of the factual issues determined against them in Scott v Secretary, Department of Social Security and Scott v Pedler. They say that if those facts had not been wrongly decided against them, breaches of their human rights would have been established. By way of example, and there are a number of others, in the written submissions filed by Mr and Mrs Scott on 28 August 2009 in opposition to the Commonwealth’s motion for summary judgment they re-agitate the allegation that Centrelink officers deliberately starved them and then say that the facts demonstrate a violation of their human rights. They state:
65. Centrelink was aware or must have been aware that because of its refusal to recognize physical impairment and because of its insistence on psychiatric assessment, the Second Applicant declined to make the 2nd claim for DSP without further evidence. Centrelink was aware that Applicants were suffering starvation and were uncertain of their shelter without the grant of SB by Centrelink to the Second Applicant. Centrelink admitted that no grant of SB in July and August 1995, and therefore withdrawal of food and shelter from the Second Applicant and the withdrawal of adequate food and of shelter from both the Applicants, was intentionally used as a tool to force the Second Applicant to make the 2nd claim for a DSP without further evidence. Centrelink had no intention to determine on that claim the level of physical impairment of the Second Applicant, the only intention of Centrelink was to obtain psychiatric examination of the Second Applicant, and to attach a psychiatric label to the Second Applicant. The withdrawal of food and shelter from the Second Applicant for 2 months and the withdrawal of adequate food and of shelter from both the Applicants for 2 months is the treatment of very severe nature. There are no extenuating circumstances. The purpose of depriving the Second Applicant from providing further medical evidence, of not recognizing physical impairment and sending only for a psychiatric examination is unreasonable, is the treatment of severe nature. Centrelink breached Art.7 of the ICCPR and ss.3,7 and/or 10 of the DRDP.
145 This, and other like submissions, do not purport to address any error alleged to have been made by the Commission. Rather they seek to persuade this Court anew of the issues which were decided against Mr and Mrs Scott in previous proceedings, and then to contend that Centrelink acted in breach of the human rights of Mr and Mrs Scott. Such submissions do not address the issue in this application which is concerned with the question whether Mr and Mrs Scott are likely to succeed in showing that the Commission made errors of law by deciding not to inquire into their complaint.
146 It may be that the merits of the arguments made by Mr and Mrs Scott to the effect that the previous cases were wrongly decided might have some bearing on the reasonableness of the decision of the Commission. Because Mr and Mrs Scott are not legally represented, and despite the fact that the submissions above are not put on this basis, they will be addressed later in these reasons in the context of the arguments which challenge the legality of the decision of the Commission on the ground that it was so unreasonable that a reasonable decision maker could not arrive at such a decision.
THE ADJR Act grounds of challenge to the Commission decision
Failure to take into account relevant considerations
147 Mr and Mrs Scott allege in their amended application filed on 27 April 2010 (paragraph C(1)(a)) that there are five relevant considerations which the Commission failed to take into account, namely, that:
There was no previous judicial consideration of the conduct of Commonwealth Medical Officer Paulson.
There was no previous judicial consideration of the deceit by Centrelink Officers McLeod and Peak.
Judicial considerations do not entirely overlap with considerations under the Australian Human Rights Commission Act.
There was new evidence given by Ms Chrystal in the trial before Heerey J.
148 Considerations are relevant in the sense used in s 5(2)(b) of the ADJR Act or for the purpose of establishing jurisdictional error on the part of the Commission only if, by reference to the subject matter, scope, and purpose of the Australian Human Rights Commission Act, the Commission was bound to take those considerations into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J.
149 Section 20(2)(c)(iii) of the Australian Human Rights Commission Act was available to the Commission where it formed the opinion that the subject matter of the complaint had been adequately dealt with in circumstances where some other remedy had been sought in relation to the subject matter of the complaint. Neither the section nor the statute generally bound the Commission to take into account any of the considerations relied upon by Mrs and Mrs Scott. Rather, the Commission was required to come to a view about the adequacy with which the subject matter of the complaints had been dealt with. The factors to which the Commission had regard were for it to judge. Notwithstanding this conclusion, some of the particular considerations alleged to have been omitted from consideration will be addressed.
150 It is not clear why Mr and Mrs Scott refer to “new evidence” in the last of the considerations which they allege the Commission failed to take into account. They refer to evidence given in the two trials by Ms Chrystal that she knew that Mrs Scott submitted a medical opinion that suggested that Mrs Scott had impairments sufficient to qualify her for DSP. Mr and Mrs Scott refer to further evidence given by Ms Chrystal that in 1995 she formed her own view that Mrs Scott did not have physical impairments such as to justify the grant of DSP. The gist of the submission seems to be that the Commission should have taken into account the fact that Ms Chrystal formed a view which disagreed with the medical opinion relied upon by Mrs Scott. The unstated assumption is that Ms Chrystal’s view is therefore untenable, and the Commission should have come to that conclusion. Even if the Commission were bound to take this evidence into account, which it was not, it was not bound to accept the unstated assumption. And, in any event, despite the view formed by Ms Chrystal, she ultimately granted Mrs Scott SB. Consequently, even if Mr and Mrs Scott could overcome the various insurmountable obstacles in their way, the argument takes them nowhere.
151 Then Mr and Mrs Scott seem to advance the argument that the previous cases did not directly consider the conduct of Dr Paulson, Mr McLeod, or Mr Peak, and did not consider the SSAT proceeding and some further evidence which they say became available after those cases, and therefore the present complaint about those matters could not have been adequately dealt with. But this conclusion does not follow. Even if it were the case that the Courts had not directly considered those matters it was open to the Commission to conclude that, by reason of the connection between the matters considered by the Courts and the matters about which complaint was made, the subject matter of the complaint had been adequately dealt with. There are some examples of such connections. For instance, Gray ACJ, in Scott v Pedler at [6], explained that ‘the letter rejecting Mrs Scott’s application for SB in July 1995 was in the name of Mr McLeod but, was signed by Ms Pedler who held the requisite delegation to enable her to make the decision, and who actually made it’. Thus, in that instance, Mr McLeod’s conduct was effectively scrutinized by the examination of Ms Pedler’s actions.
152 In any event, the conduct of Dr Paulson, Mr McLeod, Mr Peak and the SSAT was considered in previous litigation brought by Mr and Mrs Scott. They raised issues concerning the three officers and the SSAT in Scott v Pedler and those issues were dealt with in the proceedings. Thus, on 4 July 2002, Gray ACJ acceded to an application made by Mr and Mrs Scott to add Mr McLeod and Mr Peak as respondents. Mr and Mrs Scott apparently took no further action to make a case against Mr McLeod and Mr Peak. His Honour referred to the roles of Mr McLeod, Mr Peak, and the SSAT in setting out the relevant facts at [2] to [13] of his reasons for judgment in Scott v Pedler. Then, at [28] Gray ACJ said:
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 “reject” Ms Scott’s “physical impairment” and “professional medical opinion” in relation to that impairment.
153 And it seems that Dr Paulson’s conduct was in issue by reference to the passage at [36] in the reasons for judgment of Gray ACJ, extracted at [71] in these reasons for judgment.
The decision was based on facts which did not exist
154 Paragraph C(1)(b) of the amended application provides the following basis for this ground:
The fact that all issues that were presented for the previous judicial considerations were judicially considered and/or were adequately judicially considered does not exist.
155 An administrative decision may be challenged on the ground that there was no evidence or other material to justify the making of the decision (s 5(1)(h) ADJR Act). Relevantly, this ground is not made out unless the person who made the decision based the decision on the existence of a particular fact, and that fact does not exist (s 5(3)(b) ADJR Act).
156 By way of explanation of this ground, Mr and Mrs Scott refer to the written submission filed in the application for leave to appeal heard in Scott v HREOC, the written submissions in reply dated 18 February 2010 and two affidavits sworn by Mrs Scott. From these sources it seems that this ground primarily argues that the decision of the Commission was based on the fact that Scott v Secretary, Department of Social Security and Scott v Pedler were properly decided. This fact did not exist, it was contended, because those cases were wrongly decided.
157 A separate contention made under this ground seems to be that the decision of the Commission was based on the fact that the subject matter of the complaint was considered by the Courts in Scott v Secretary, Department of Social Security and Scott v Pedler, and this fact did not exist, because the subject matter of the complaint was not considered by the Courts in those cases.
158 The fact on which the decision of the Commission was based was the fact that Scott v Secretary, Department of Social Security and Scott v Pedler had considered the circumstances of the rejection of SB and DSP payments. This fact existed. The Commission used that fact as the basis for forming an opinion whether the subject matter of the complaint had been adequately dealt with. The process by which the Commission formed its opinion did not involve the existence of any further facts. Rather it was a process of judgment and assessment of those facts made against the criteria set out in s 20(2)(c)(iii).
Acting at the behest of another
159 The basis of this ground is stated in paragraph C(1)(c) of the amended application as follows:
The first respondent referred to the view of the Federal Courts without making its own opinion.
160 Decision makers will have acted under the direction or at the behest of others if they “acted under pressure exerted by” or “simply gave automatic effect to” the direction of others: Bread Manufacturers of NSW v Evans (1981) 180 CLR 404 at 418 per Gibbs CJ. In such cases, the decision cannot be said to be that of the decision maker: Evans v Donaldson (1909) 9 CLR 140; R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177; Lavender & Son v Minister of Housing (1970) 3 All ER 871.
161 Mr and Mrs Scott elaborated this ground in a written submission dated 28 July 2010 which reflected the oral submissions made on that day at the hearing. They argued that the Commission made no independent analysis of the merits of the complaint, but merely followed the judgments of the Courts.
162 There is nothing to suggest that the Commission acted at the direction of the Courts. It arrived at an opinion using the fact that the Courts had considered the circumstances of the rejection of Mrs Scott’s DSP and SB applications. Section 20(2)(c)(iii) of the Australian Human Rights Commission Act required the Commission to form an opinion whether, in the course of seeking a remedy for the wrongs allegedly done to Mr and Mrs Scott, the matters of complaint to the Commission had been adequately dealt with. This is the process which the Commission undertook. The Commission was entitled to take into account the proceedings brought in the Court, and to consider the way in which those proceedings impacted upon the subject matter of the complaint.
Breach of the requirements of natural justice
163 Paragraph C(2) of the amended application alleges that the decision of the Commission was affected by apprehended bias. The basis of this ground is that the decision maker, Ms Toohey, had on 28 August 2006 rejected the previous complaint made to the Commission by Mr and Mrs Scott.
164 A decision is affected by apprehended bias where a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question the decision maker is required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ, following R v Mr Justice R S Watson, A Judge of the Family Court of Australia; Ex parte Armstrong (1976) 136 CLR 248; R v Lusink; Ex parte Shaw (1980) 32 ALR 47; Livesey v New South Wales Bar Association (1983) 151 CLR 288.
165 Mr and Mrs Scott submitted that a fair minded lay observer might reasonably apprehend that Ms Toohey applied her earlier decision without giving the matter fresh consideration, that her view was incapable of alteration whatever new argument or evidence was produced, and she had a personal interest in proving that the earlier decision was correct. These propositions flowed in part from a minute textual examination by Mr and Mrs Scott of the Commission’s decision. The textual criticisms are unfounded or insignificant. There is no basis for the claim of apprehended bias. The fact that Ms Toohey had decided the earlier complaint is alone not capable of supporting the conclusion that she might not bring an impartial mind to forming the opinion referred to in s 20(2)(c)(iii) of the Australian Human Rights Commission Act.
166 A further claim of breach of the requirements of natural justice was made in paragraph C(3)(a) of the amended application. It was said that the Commission failed to accord natural justice to Mr and Mrs Scott because it acted against a long standing practice of recognising that the withdrawal of food and shelter by the Commonwealth amounted to torture or cruel, inhuman or degrading treatment or punishment under Art 7 of the ICCPR. It seems that Mr and Mrs Scott use natural justice in this context as meaning some act which was substantively unjust to them. Such use misunderstands the notion of the requirements of natural justice in administrative law. Natural justice is concerned with procedural fairness in this area of the law. No claim is made in this ground concerning procedural fairness. The argument does not raise any claim cognisable in an application for review of the decision of the Commission.
The exercise of power by the Commission was so unreasonable that no reasonable decision maker could have exercised the power in that way
167 The basis of this ground is stated in [1] and [2] of the application for review in the form amended on 10 March 2009 as follows:
The Applicants are aggrieved by the decision because it denies them their right to an effective remedy pursuant to arts 2(3)(a) and 2(3)(b) of the International Covenant on Civil and Political Rights (“ICCPR”) and pursuant to arts. 3, 7 and 10 of the Declaration on the Rights of Disabled Persons (“DRDP”).
The grounds of the application are:
1. Applicants are being denied, in breach of arts. 7 and/or 26 together with art.2 of the ICCPR, of an effective financial compensation for cruel, inhuman, degrading treatment and/or distinctive treatment, not justified by any reasonable and objective grounds, and for lack of equality before the law caused by no grant of a disability support pension by the Commonwealth of Australia to the Second Applicant for 6 times and for 4 years.
2. Applicants are being denied, in breach of arts. 7 and 2 of the ICCPR, of an effective financial compensation for torture, cruel, inhuman and/or degrading treatment, and, in breach of arts. 3, 7, 10 of the DRDP, compensation for:
* intentional (coercion) and/or negligent withdrawal of food and/or shelter before and after the grant of special benefit, that was pleaded to be the payment of last resort,
* withdrawal of food and/or shelter while the Commonwealth of Australia knew that the Second Applicant was preparing an appeal against its decision,
* disregarding by the Commonwealth Medical Officer of the claimed by the Second Applicant physical impairment,
* rejection of the professional medical opinions, of the professional opinions of medical specialists, and of objective medical evidence by the lay Commonwealth (Centrelink) officers and by the Social Security Appeals Tribunal (“SSAT”),
* knowingly rejecting physical impairment on the not existing report of the Commonwealth Medical Officer,
* rejection of the X-rays evidence on the knowingly unreasonable ground that personal examination of a patient must be made,
* about 32 actions diminishing the level of physical impairment,
* deceit, * abuse of psychiatry.
168 In relation to the unreasonableness ground, Lord Greene MR said in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230 that, “to prove a case of that kind, would require something overwhelming”. The ground is not established simply on the basis of a disagreement with the reasoning process of a decision maker, or a disagreement with the merits of the decision. That would impermissibly intrude into the grounds of merits review: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason J. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Gleeson CJ and McHugh J said:
Someone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as ‘illogical’ or ‘unreasonable’, or even ‘so unreasonable that no reasonable person could adopt it’. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.
169 Mr and Mrs Scott appear to argue that the facts listed in [1] and [2] of the amended application demonstrate that their human rights have been infringed. Then they contend that Art 2(3)(a) and (b) of the ICCPR provides an undertaking by the Commonwealth to ensure that persons whose human rights are violated have an effective remedy which would be determined by a competent authority. It follows, they say, that they are entitled to an effective remedy for the breaches of their human rights. By refusing to inquire into the violation of their human rights, the Commission has denied them such a remedy. It further follows, so it is argued, that the decision of the Commission is so unreasonable that a reasonable decision maker could not have made it.
170 In the written submissions dated 28 July 2010, the argument seems to be stated somewhat differently. There is no reference to the denial of an effective remedy under Art 2 of the ICCPR. Rather, it is said that the unreasonableness of the Commission’s decision lay in the failure to inquire into the “meritorious” complaint. In essence, Mr and Mrs Scott seem to contend that they were so badly wronged that it was unreasonable for the Commission not to inquire into their complaint.
171 The Commission addressed the question raised by s 20(2)(c)(iii) of the Australian Human Rights Commission Act, namely, whether the subject matter of the complaint had been adequately dealt with. There were rational grounds for the Commission to arrive at the opinion that the circumstances in which the subject matter of the complaint arose had been examined comprehensively by the Courts at three levels in each case in Scott v the Secretary, Department of Social Security, and Scott v Pedler. Further, it was open to the Commission to come to the view that the essential claims made by Mr and Mrs Scott, that officers of the Commonwealth had deliberately injured them, had not been made out on the facts. Because the facts underlying the claims of violation of human rights had not been made out, it was open to the Commission, acting reasonably, to conclude that the subject matter of the complaint had been adequately dealt with.
The decision was otherwise contrary to law
172 The basis of this ground is that the Commission failed to inquire into the allegation of unlawful discrimination (amended application [C(3)(c)]). Mr and Mrs Scott use unlawful discrimination here in the sense used in s 11(1)(aa) of the Australian Human Rights Commission Act and, in particular, use it to refer to racial discrimination under s 9 of the Racial Discrimination Act.
173 This ground cannot succeed because the Commission was not asked to inquire into racial discrimination against Mr and Mrs Scott. The 33 facts relied on by Mr and Mrs Scott in the document entitled ‘Facts of the Claim / Complaint’ do not allege that any action was taken on the basis of race, colour, descent, or national or ethnic origin. The Commission cannot have erred by failing to inquire into racial discrimination when Mr and Mrs Scott did not complain about racial discrimination. Thus, Mr and Mrs Scott have no reasonable prospect of prosecuting the ADJR Act challenge to the decision of the Commission.
174 On 9 October 2009, Mr and Mrs Scott filed a notice of motion in this proceeding seeking:
1. The present proceeding be join with the proceedings Scott v Secretary, Department of Social Security VG 69/1997 Scott v Pedler V 652/2001 and/or Scott v HREOC VID 976/2007 pursuant to Order 35, Rule 1 of the Federal Court Rules;
and/or
2. The proceedings Scott v Secretary, DSS VG 69/1997, Scott v Pedler V 652/2001 and/or Scott v HREOC VID 976/2007 be reopen and the judgments in these proceedings be set aside pursuant to Order 35, Rule 1 and/or Rule 7(2)(e) of the Federal Court Rules;
175 When Mr and Mrs Scott came to amend the application on 27 April 2010, they included a claim for relief in similar terms to the above paragraphs 1 and 2 of the notice of motion.
176 The application to reopen forms part of the application to the Court in respect of which the Commonwealth has applied for orders dismissing the proceeding. Thus, the question is whether Mr and Mrs Scott have a reasonable prospect of successfully prosecuting the application to reopen.
177 For this relief Mr and Mrs Scott rely on O 35 r 1, O 35 r 7(2)(e) of the Federal Court Rules, and on the view of Mason CJ in Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 (Autodesk).
178 Order 35 r 1 provides:
The Court may, at any stage of any proceedings, on the application of any party, pronounce such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that order in any originating process.
179 This rule operates within a proceeding to allow the Court to make orders which the nature of the case requires. It allows the Court to grant relief in appropriate cases even though the applicant has not made a claim for that relief. But the rule does not allow a Court in a later proceeding to rehear an earlier proceeding and make orders in the later proceeding in place of the orders originally made. The rule therefore has no application in the present circumstances.
180 Order 35 r 7(2)(e) provides:
(2) The Court may vary or set aside a judgment or order after the order has been entered where:
(e) the order does not reflect the intention of the Court;
181 This rule applies when the orders made in a proceeding do not reflect the intention of the Court: Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558; Fang v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 121. Again it does not apply to the judgments in the previous litigation brought by Mr and Mrs Scott. The orders made in those cases are consistent with the reasoning in each of the judgments.
182 In Autodesk Mason CJ said at [2] – [4]:
2. … The exercise of the jurisdiction to reopen a judgment and to grant a rehearing is not confined to circumstances in which the applicant can show that, by accident and without fault on the applicant's part, he or she has not been heard. It is true that the jurisdiction is to be exercised with great caution ((2) Wentworth v. Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672, at p 684; State Rail Authority of N.S.W. v. Codelfa Construction Pty. Ltd. [1982] HCA 51; (1982) 150 CLR 29, at p 38.), having regard to the importance of the public interest in the finality of litigation. It is equally true, as this Court said in Wentworth v. Woollahra Municipal Council ((3) (1982) 149 CLR, at p 684), that:
"(g)enerally speaking, it will not be exercised unless the
applicant can show that by accident without fault on his part he
has not been heard."
3. But these statements do not exclude the exercise of jurisdiction to reopen a judgment which has apparently miscarried for other reasons, at least when the orders pronounced have not been perfected by the taking out of formal orders…
4 … the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasised that the jurisdiction is not to be exercised for the purpose of reagitating arguments already considered by the court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.
[emphasis added]
183 Mr and Mrs Scott rely on this view to argue that the Courts in Scott v Secretary, Department of Social Security, Scott v Pedler and Scott v HREOC misapprehended the facts and the law and consequently the judgments in each of those cases should be set aside and the cases be reopened.
184 Order 35 r 7 of the Federal Court Rules regulates the power of this Court to set aside judgments and orders. It provides:
(1) The Court may vary or set aside a judgment or order before it has been entered.
(2) The Court may vary or set aside a judgment or order after the order has been entered where:
(a) the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default and whether or not the absent party had notice of the motion for the order;
(b) the order was obtained by fraud;
(c) the order is interlocutory;
(d) the order is an injunction or for the appointment of a receiver;
(e) the order does not reflect the intention of the Court; or
(f) the party in whose favour the order was made consents.
(3) A clerical mistake in a judgment or order, or an error arising in a judgment order from an accidental slip or omission, may at any time be corrected by the Court.
(4) Subrule (2) shall not affect the power of the Court to vary or terminate the operation of an order by a supplementary order.
[emphasis added]
185 Order 35 r 7(1) concerns judgments or orders which have not been entered: AB v Federal Commissioner of Taxation (1998) 157 ALR 510 at 515. It provides for a wide discretion which, however, must be exercised judicially. The approach articulated in Autodesk relates to the exercise of such a power. That was a case in which the judgment had not yet been entered: Smith v New South Wales Bar Association (1992) 108 ALR 55 at 60.
186 A search of the Court files discloses that judgment has not been entered in Scott v HREOC. Consequently, O 35 r 7(1) and the approach taken in Autodesk is applicable to that case.
187 The Court files also show that the judgments have been entered in Scott v Secretary, Department of Social Security and Scott v Pedler both at first instance and on appeal. That circumstance is governed by O 35 r 7(2) which sets out a series of defined circumstances in which the Court is empowered to set aside final orders.
188 Mr and Mrs Scott rely on O 35 r 7(2)(e) but, as previously explained, this rule does not apply to any of the judgments in question. However, Mr and Mrs Scott set out at length in written submissions many reasons why they regard each of the judgments as having been wrongly decided. As Mr and Mrs Scott are not legally represented, it is necessary for the Court to ascertain whether there is any other power to reopen the judgments which would address the criticisms made by Mr and Mrs Scott of the judgments in the earlier cases.
189 In Bailey v Marinoff (1971) 125 CLR 529 Barwick CJ said in relation to the power of the New South Wales Court of Appeal to reopen a final judgment:
Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed.
190 Until the case of DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 (DJL), there had been no case in the High Court which turned on the power to reopen entered orders (DJL at [44]).
191 That case concerned a judgment of the Full Court of the Family Court. An application was made to a differently constituted Full Court of the Family Court to set aside the judgment on the ground that, as a result of a High Court judgment in another case delivered shortly after the original Full Court judgment, that original judgment was wrong in law. The Full Court of the Family Court, by a majority, dismissed the application to set aside the original judgment. On appeal, the High Court considered whether the Full Court of the Family Court had power to reopen the original judgment. The majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) held that the answer lay in the text of the governing statutes and any express or implied powers to be found in them. In the case of the Full Court of the Family Court there was no such power.
192 Kirby J thought that there was an implied power to reopen the original judgment. He had long been an advocate of the existence of such a power: Wentworth v Rogers (No 9) (187) 8 NSWLR 388 at 394-395; Haig v Minister Administering the National Parks and Wildlife Act 1974 (1994) 85 LGERA 143 at 152-154, 159, 160.
193 In DJL, Kirby J referred to Donkin v AGC (Advances) Ltd [1995] FCA 696 and Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543, both judgments of the Full Court of the Federal Court where the Courts were prepared to assume for the purposes of the appeals that such power existed but that the power was confined to exceptional cases. In the result, in both cases, orders to reopen were refused. Kirby J said in DJL at [106] of the implied power:
It is confined to exceptional cases where a mistake has occurred which, unrepaired, would cause a serious injustice. The applicant bears a heavy burden to persuade a court that he or she did not occasion the mistake and has moved for relief with relevant expedition.
194 And at [128]:
It will be remembered that the reopening of a perfected order is confined to truly exceptional cases. The applicant must have acted promptly and be without fault. To deny relief must effectively leave a serious injustice unrepaired.
195 Kirby J agreed with the majority in the result because he did not regard the error in that case as resulting in ‘irreparable injustice’ (see [133]).
196 Aside from O 35 r 7(2), the parties have not indicated any other power in the Federal Court to set aside a perfected order. It is likely that the judgment on this point in DJL, applicable to the Family Court, would apply equally to the Federal Court. The result would follow that this Court could not entertain the application by Mr and Mrs Scott to reopen Scott v Secretary, Department of Social Security and Scott v Pedler. Furthermore, it is doubtful whether a single judge of this Court has power to set aside a judgment of the Full Court as Mr and Mrs Scott seek.
197 Despite the conclusion that the Court does not have power to reopen Scott v Secretary, Department of Social Security and Scott v Pedler, except on the grounds stated in O 35 r 7(2), I intend to examine the arguments for reopening raised by Mr and Mrs Scott as if the view of Mason CJ in Autodesk relating to judgments which have not been entered applied to both of those cases as well as to Scott v HREOC. This is to take an approach most favourable to Mr and Mrs Scott.
198 The written submissions filed by Mr and Mrs Scott on 2 December 2009, 18 February 2010 and 28 July 2010 in support of the application to reopen are not always easy to understand. What follows is an attempt to derive the major significant points which seem to emerge from those submissions.
199 Mr and Mrs Scott contend that the Courts were wrong to hold that there was no misfeasance in public office, no deceit, and no negligence on the part of the Commonwealth or its officers.
200 In relation to misfeasance in public office, Mr and Mrs Scott contend that the Courts erred in failing to find that there were invalid exercises of power, and also that the respondents acted with the necessary intent. Various examples of each situation are given.
201 Thus, Mr and Mrs Scott say that under the Social Security Act only medical practitioners can make an assessment of impairment. The rejection of the claim, based on nil impairment, by Mr McLeod, Mr Peak, Ms Williams and Ms Chrystal, who were not medical practitioners, was an invalid exercise of power. Mr and Mrs Scott say that these officers were at least recklessly indifferent to the absence of power. Mr and Mrs Scott say that they suffered loss as a result, and hence misfeasance in public office was made out.
202 Gray ACJ considered this very argument in Scott v Pedler: see [13], [17], [18], [33] [49] and [90]. In particular, after an analysis of the provisions of the Social Security Act as a whole, he held at [49]:
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.
203 Thus, this contention is an example of re-agitating arguments already considered by the Court referred to by Mason CJ in Autodesk and, hence, is not a justification for setting aside the judgments. In each case the relevant judgments deal comprehensively with the claim of misfeasance in public office. Whilst Mr and Mrs Scott reject the conclusion that the tort was not established, the judgments are not affected by any misapprehension of fact or law on the issue.
204 Then, Mr and Mrs Scott say that the failure to find that the officers of the Commonwealth intended to cause them injury was against the evidence. A number of instances are cited. For example, Mr and Mrs Scott say that the Court should have found that when Ms Williams refused SB knowing that Mrs Scott was facing starvation and homelessness, Ms Williams intended to harm Mrs Scott by forcing her to make a second DSP claim. In Scott v Pedler Gray ACJ said at [87]:
… 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.
205 Similar findings were made in respect of Ms Pedler and Ms Chrystal. Thus, this contention is an attempt to reargue the very case of the existence of the necessary intention of the officers of the Commonwealth to harm Mr and Mrs Scott which was rejected in the previous litigation. Mr and Mrs Scott disagree with the conclusions reached but the judgments are not affected by any misapprehension of fact or law and no basis exists for setting aside the judgments based on this argument.
206 Mr and Mrs Scott also say that Ms Pedler and Ms Williams rejected the application for SB on a mistaken view that it was not payable unless Mrs Scott had lodged a claim for DSP. They argue that Ms Pedler and Ms Williams were reckless as to the existence of their power to refuse the claim. The rejection was therefore for an improper reason and could not be a valid exercise of power. Again, this matter was directly considered in Scott v Pedler. Gray ACJ found that the evidence, including oral evidence of the officers, established that they did not intend to cause injury to Mrs Scott. He held, that, as a matter of law, the officers were entitled, but not required, to ask Mrs Scott to apply for DSP. In the absence of either the necessary intention or invalid exercise of power, misfeasance in public office was not made out. Again, Mr and Mrs Scott seek to reargue a matter already determined against them on the law and the facts. This provides no ground for setting aside the judgments. They were not affected by any misapprehension of fact or law.
207 A further ground raised by Mr and Mrs Scott is that despite the grant of SB on 23 August 1995, they were not paid the benefit until Friday 1 September 1995, and were not able to access the funds until Monday, 4 September 1995. Centrelink intended by this delay to cause them injury and consequently was liable for misfeasance in public office, it was alleged. In Scott v Pedler, Gray ACJ records the date of payment of SB (see [12]). There is no reference to this particular argument having been put to the Court. Nor is there any explanation from Mr and Mrs Scott why it was not put in any of the cases. Mr and Mrs Scott are not entitled to have the judgment set aside if they ‘failed to present the argument in all its aspects’: Autodesk at [4] per Mason CJ. It was not for the Court to examine the evidence in minute detail in order to uncover every possible minor wrongdoing of the respondents. Mr and Mrs Scott were bound to explain the significant wrongs which they alleged had been done to them. They did not isolate this particular event at the time of the hearings. It thus provides no basis for setting aside the judgments in the previous cases.
208 In the same category is the claim now raised against the Commonwealth Medical Officer, Dr Paulson. Mr and Mrs Scott say that the Commonwealth Medical Officer had evidence of Mrs Scott’s impairments from medical reports supplied by her but the Commonwealth Medical Officer failed in her duty to record those impairments in the medical report which had to be provided for the DSP application. This conduct, it is said, was not an honest attempt to perform the statutory function and it was foreseeable that such conduct would cause damage to Mrs Scott. Again, it was argued that the evidence therefore established misfeasance in public office and the Courts were wrong to have found otherwise. But, again, there is no reference to this argument being put in any of the proceedings. It is another attempt by Mr and Mrs Scott to utilise the statements of the law articulated by the judges in each of the cases and then to retrospectively fit the evidence as they see it into these formulations to raise a new way of putting the case on misfeasance in public office. Mr and Mrs Scott have had numerous chances to put their case. They cannot endlessly create new variations and re-litigate those variations. They failed to present this variation at the various hearings. The judgments cannot be set aside to provide further opportunities to agitate what is essentially the same case.
209 Mr and Mrs Scott argue that they have a claim against Mr McLeod and Mr Peak in deceit. They say that these two officers represented to them in decisions to refuse DSP that the Commonwealth Medical Officer had assessed Mrs Scott’s impairment at nil. This, they say, was false. The misrepresentation caused Mr and Mrs Scott to spend time and money seeking further medical opinions to support the claim for DSP and they were caused personal injury in the process. Mr and Mrs Scott made a successful application to Gray ACJ in Scott v Pedler to join Mr McLeod and Mr Peak as respondents. However, thereafter they took no further step against them. Having chosen not to proceed against them they cannot now seek to set aside the judgments which determined the issues then before the Courts.
210 Also, Mr and Mrs Scott say that the Commonwealth Medical Officer and Mr McLeod and Mr Peak, Ms Williams and Ms Chrystal were negligent in rejecting the claim of impairment of Mrs Scott. Each of the Courts rejected the existence of a duty of care in the circumstances brought before the Courts by Mr and Mrs Scott. This is another example of an issue which was directly determined in the litigation. Reopening is not available ‘for the purpose of agitating arguments already considered by the Court’: Autodesk at [4] per Mason CJ
211 Mr and Mrs Scott contend that the judgments should be set aside on the ground that they were procured by fraud. The contention seems to be that the Commonwealth tried to restrict the hearing in Scott v Secretary, Department of Social Security to the issue of damage resulting from the two month delay in payment of SB to Mrs Scott. Mr and Mrs Scott say that they, in fact, raised the unfair continuous rejection of DSP as an issue in that proceeding. They then suggest that the High Court was pressured by the Commonwealth into accepting the view that the continuous rejection of DSP was not an issue before Heerey J. The argument proceeds that, following the conclusion of Scott v Secretary, Department of Social Security, a solicitor acting for the Commonwealth filed an affidavit in Scott v Pedler which deposed that the continuous rejection of DSP had been an issue in Scott v Secretary, Department of Social Security.
212 It is difficult to extract from this confusion any coherent argument. The complaint is that the Commonwealth misled the High Court. The Federal Court cannot grant relief in respect of conduct alleged to have misled the High Court. But, in any event, the case articulated by Mr and Mrs Scott disproves itself. They quote from the reasons of the High Court dismissing their application for special leave. In the extract the High Court indicates that the issues in the case appear from, inter alia, the submissions both oral and written of the parties. Then, Mr and Mrs Scott quote from the oral submissions made by them to the effect that they wanted the High Court to direct the Federal Court to hear not part of the matter but the entirety of the matter which was before the Federal Court. In other words, their argument before the High Court was that Heerey J had failed to consider all the issues in their case. The High Court understood that they made that submission. At the highest, the complaint made by Mr and Mrs Scott is that the Commonwealth put an opposing submission to the High Court. It is clear from their own argument that the High Court had both contentions before it and was not misled. Mr and Mrs Scott do not establish that the High Court was misled by the Commonwealth, let alone that there was fraud by the Commonwealth.
213 I have attempted to address most of the submissions made by Mr and Mrs Scott in support of setting aside the previous judgments. They have obviously devoted an enormous amount of time and energy to the minute dissection of the previous litigation. Much of their argument focuses on the minutiae and leads to criticisms which do not lead to any significant ultimate outcome. They have acquired an understanding of the law which they have applied to the facts as best as they can without legal representation. Many of their arguments disclose intelligence and thoughtfulness. But others demonstrate confusion and misunderstanding, usually fuelled by an absolute conviction that they have been badly wronged. It is not practically possible to untangle every one of these arguments. There is a limit to the judicial time which should be devoted to their cause. Thus, I have adopted the approach taken by the Full Court in Scott v Secretary, Department of Social Security at [10].
214 Finally, it will be noticed that the application to set aside and reopen the previous litigation is made in the existing application for judicial review of the decision of the Commission. Ordinarily such relief would be claimed in separate proceedings and would usually be made to the Court which gave the original judgment. However, as the detail of the previous litigation was in issue in the application for judicial review, and as the Commonwealth raised no objection to the Court dealing with the arguments, it was convenient to deal with them, at least to the extent that a single judge has jurisdiction to do so.
215 In the result, Mr and Mrs Scott have no reasonable prospect of prosecuting the application to reopen the previous litigation.
216 The Commonwealth argued a further alternative basis on which the proceeding should be dismissed, namely, that the proceeding is an abuse of process within the meaning of O 20 r 5(1)(b) of the Federal Court Rules.
217 The jurisdiction of the Court to dismiss a proceeding as an abuse of process is discussed by reference to the authorities by Giles J in State Bank of New South Wales v Alexander Stenhouse Ltd (1997) Australian Torts Reports 81 at 89 and by French J in Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699. These discussions set out the applicable law. For present purposes it is sufficient to distil the following propositions relevant to the present case from those judgments:
1. One form of abuse of process is the use of the process of a court to relitigate disputes which have already been decided by the court.
1. An attempt to relitigate an issue or dispute which has been resolved in earlier litigation may constitute an abuse of process even though the earlier proceeding did not give rise to res judicata, issue estoppel or Anshun estoppel.
2. There are public policy considerations which inform the exercise by the Court of the power to dismiss a proceeding as an abuse of process where the proceeding involves relitigation of a dispute already dealt with in an earlier proceeding. Those considerations include:
a. the need for finality in litigation;
b. the need to avoid the waste of judicial resources;
c. the need to avoid vexing the respondent more than once for the same reason; and
d. the need to maintain public confidence in, and respect for, the administration of justice.
3. On the other hand, the power should be used sparingly so that freedom of access to the Courts is not unreasonably curtailed.
4. The Court must assess the extent of the oppression and unfairness to the respondent if the dispute is relitigated.
5. Further, the Court must balance the justice to the applicant against the factors which constitute the alleged abuse of process.
6. In the exercise of assessment and balancing it may be relevant to consider some or all of the following factors:
e. The significance of the issue sought to be relitigated in the first proceeding, including whether it was an evidentiary or ultimate issue;
f. The opportunity available and taken to fully litigate the issue;
g. The terms and finality of the finding on the issue;
h. The identity between the relevant issues in the first and subsequent proceedings; and
i. The plea of fresh evidence including the nature and significance of the evidence and the reason why it was not part of the earlier proceeding.
218 The substantial edifice of litigation brought by Mr and Mrs Scott is built on two central events, namely, the rejection of Mrs Scott’s application for DSP in 1993, and the rejection of her application for SB in 1995. Ultimately, both SB and DSP were granted to Mrs Scott. She utilised the mechanisms available under the Social Security Act to test the validity of the rejections, and through these mechanisms, she was ultimately successful. The litigation in the Courts has been concerned with the way in which Mr and Mrs Scott were treated in the course of that process by medical officers and decision makers employed by the Commonwealth. Mrs Scott has had and taken advantage of the opportunity to ventilate her grievances over the refusal of DSP before departmental review officers, the SSAT, and the AAT, and over the refusal of SB before departmental review officers. As Gray ACJ observed in Scott v Pedler, the statutory system provides an almost uniquely generous opportunity to review decisions made under the Social Security Act. Nonetheless, following these reviews and hearings Mrs Scott took her case to a trial before Heerey J, on appeal to the Full Court, and then for special leave to appeal to the High Court. After that she had a trial before Gray ACJ, an appeal to the Full Court, and then an application for special leave to appeal to the High Court. Having failed in all these attempts she made a complaint to the Commission. When it refused to inquire in to her complaint she instituted a judicial review in the Federal Magistrates Court which was summarily dismissed by Phipps FM. Mrs Scott sought leave to appeal from that judgment, and leave to appeal was refused by Kenny J.
219 Although the case was framed a little differently in each proceeding, the same dispute was litigated in each case. Mr and Mrs Scott contended that they suffered injury as a result of the conduct of officers of the Commonwealth in the process of initial rejection of the applications for DSP and SB by Mrs Scott. The proceedings considered the liability of the Commonwealth or its officers on a number of different legal bases including breach of statutory duty, breach of common law duty, misfeasance in public office, breach of absolute rights, other causes of action based on intentional infliction of injury, as well as claims for declaratory and injunctive relief based on allegations of the unlawful exercise of statutory power. It is likely that each proceeding was framed slightly differently simply in order to allow Mr and Mrs Scott to argue that their current proceeding did not involve exactly the same considerations as the previous proceeding. However, some claims, such as misfeasance in public office were directly repeated in more than one case. The present proceeding, in substance, concerns the same dispute, even if, as to the entirety of the proceeding, it might not attract the operation of the principles of res judicata, issue estoppel or Anshun estoppel.
220 In Scott v Human Rights and Equal Opportunity Commission Kenny J said at [19]:
19 The central difficulty for the applicants is that, for the most part, the underlying conduct about which they complain has already been the subject of comprehensive judicial consideration. Although the applicants now formulate their claims before HREOC as violations of their human rights, there is no doubt that they continue to attack (though by another route) the conduct of Centrelink in refusing to grant Mrs Scott a Special Benefit. In this Court and the High Court, Centrelink’s conduct regarding Mr and Mrs Scott has been the subject of the following decisions:
• Scott v Secretary, Department of Social Security [1999] FCA 1774 (Heerey J);
• Scott v Secretary, Department of Social Security [2000] FCA 1241 (Beaumont, French and Finkelstein JJ);
• Scott & Anor v Secretary, Department of Social Security M112/00 (Callinan and Kirby JJ) (special leave refused);
• Scott v Pedler [2003] FCA 650 (Gray ACJ);
• Scott v Pedler [2004] FCAFC 67 (Gyles, Conti and Allsop JJ); and
• Scott & Anor v Pedler & Ors M83 of 2004 (Hayne and Crennan JJ) (special leave refused).
221 This view is supported by the circumstance that Mr and Mrs Scott rely on a statement of facts in all of the proceedings which are couched in almost identical form.
222 The outcomes of all of the proceedings, except the first proceeding brought by Mr Scott, have been adverse to Mr and Mrs Scott. Importantly, the central allegations that officers of the Commonwealth deliberately acted to cause injury to Mr and Mrs Scott, or breached duties owed to Mr and Mrs Scott were rejected by Heerey J and Gray ACJ and upheld by six judges in two appeals. In significant part these findings undermine the allegations made in the present proceedings.
223 The Commonwealth has had to defend itself against these claims in two trials, two Federal Court appeals, two special leave applications, a judicial review of the first Commission decision and an application for leave to appeal against the summary dismissal of that application. On the appeal in Scott v Pedler, Gyles J said at [2] to [5]:
2 The reasons of Gray ACJ and Conti J each demonstrate that this proceeding was effectively doomed to failure by the decision in Scott v Secretary, Department of Social Security [2000] FCA 1241, 65 ALD 79. Indeed, the present proceeding is in substance, if not in form, an abuse of the process of the Court which has needlessly vexed the individual respondents over a long period. As remarked by Gray ACJ in his judgment at [99]:
‘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.’
3 Besides the personal strain occasioned to the individuals is the distraction from duty of those individuals and the direct costs to the Department of participation in a series of hearings. The initial hearing of the case against the Department before Heerey J extended over four days, the appeal to the Full Court two days and the special leave application a further day. Naturally, counsel was briefed on all occasions, with senior and junior counsel briefed to oppose the grant of special leave. The present case extended over seven days at first instance and two days on appeal, with counsel briefed on each occasion.
4 That account also gives some idea of the resources of the Court which have been engaged in disposing of these cases, to which must be added interlocutory processes, preparation for hearing and judgment writing.
5 This case is a good illustration of the havoc which can be wreaked by determined and resourceful but impecunious litigants with a sense of grievance. Orders for costs are no deterrent.
224 An affidavit sworn by Lisa Kearney on 24 June 2009 deposes that the Commonwealth has incurred costs of $151,530.45 in respect of the proceeding in Scott v Secretary, Department of Social Security and Scott v Pedler, and $75,794.65 in respect of Scott v HREOC, a total of $227,325.10. The only source of income which Mr and Mrs Scott have is their social security benefits. Orders for payment of costs in each of these proceedings have been made against Mr and Mrs Scott, but it is unlikely that they will ever be able to satisfy those orders made against them. Whilst litigants should not be denied the right to bring cases to vindicate their rights as a result of impecuniosity, the Court is bound to take account of the prejudice to the Commonwealth arising from these facts.
225 In summary, then, Mr and Mrs Scott have had generous opportunities and have availed themselves of those opportunities to litigate the circumstances of the initial refusals of Mrs Scott’s application for DSP and SB. The present proceeding in substance canvases many of the same issues. Those issues of fact and law have been decided against them in previous litigation. To the extent that new issues are raised, there is no reason why those issues should not have been raised before. The extent of the past litigation has reached the point where it is an unjust burden on the Commonwealth. In part this stems from the accumulated past unpaid costs orders made against Mr and Mrs Scott. There is a public interest in the finality of litigation over the initial refusals of Mr and Mrs Scott’s application for DSP and SB and the circumstances which accompanied those refusals. The administration of justice would be brought into disrepute if Mr and Mrs Scott were permitted to continue with this proceeding because it utilises the process of the Court as an instrument of injustice and oppression. Furthermore, the point has been reached where any further consideration of the circumstances which have been considered in depth in past litigation constitute a waste of judicial resources. The proceedings should be dismissed because they are an abuse of process.
226 In view of this conclusion it is not necessary to consider the Commonwealth’s contention that the proceeding should be dismissed by application of the principles of res judicata, issue estoppel or Anshun estoppel.
CONCLUSION
227 It follows from these reasons that the proceeding should be dismissed because Mr and Mrs Scott have no reasonable prospect of successfully prosecuting the application for review of the decision of the Commission which includes the application to set aside the judgments in Scott v Secretary, Department of Social Security, Scott v Pedler and Scott v HREOC and, also, because the proceeding is an abuse of process.
In [2] and [3] of its notice of motion filed on 23 June 2009, the Commonwealth seeks orders under O 21 of the Federal Court Rules which relate to vexatious litigants. It was agreed between the parties that the applications made in those paragraphs should be adjourned until after judgment is delivered on the question whether the proceeding should be dismissed. Further directions will now be given in relation to [2] and [3] of the notice of motion.
I certify that the preceding two hundred and twenty-eight (228) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. |
Associate:
