FEDERAL COURT OF AUSTRALIA
EOX17 v Commonwealth of Australia [2018] FCA 1656
ORDERS
THE COURT ORDERS THAT:
1. The originating application filed by the applicant on 15 September 2017 is dismissed under subsection 31A(2) of the Federal Court of Australia Act 1976 (Cth).
2. The applicant is to pay the respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
PERRY J:
[1] | |
[7] | |
[19] | |
[21] | |
[27] | |
[34] | |
[34] | |
6.2 The alleged claims in negligence, and for breach of statutory duty and defective administration | [36] |
[48] | |
[49] |
1 The applicant (identified here by the pseudonym, “EOX17”) applied for a disability support pension (the pension) under s 94 of the Social Security Act 1991 (Cth) (the Social Security Act). That application was rejected by the Department of Human Services (the Department) and, after her application to this Court, on review by the Administrative Appeals Tribunal (the Tribunal). In its reasons, the Tribunal found that the applicant had a psychiatric impairment. However, it found that the applicant was not eligible for the pension because her psychiatric impairment was not “permanent” as defined in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) at the time that she made the claim and therefore the functional impact of her psychiatric impairment could not be determined. As such, the applicant could not satisfy a mandatory criterion for the grant of the pension under subs 94(1)(b) of the Social Security Act, namely, that her impairment rated 20 points or more under the Impairment Tables.
2 By these proceedings, the applicant seeks damages, including exemplary and/or aggravated damages, pursuant to what appears to be s 23 of the Public Governance, Performance and Accountability Act 2013 (Cth) (the Public Governance Act) on the ground that the Department ignored medical evidence and a ruling by the New South Wales Supreme Court as to the existence of her disability in addressing the criteria for the grant of the pension. On this basis, the applicant also alleges that the Department breached a purported duty of care to the applicant and engaged in “gross defective administration”. The applicant amended her statement of claim on 12 January 2018 to include the commentary and transcript of the review by the Tribunal in December 2017. To the extent to which leave to amend is necessary, leave is granted by consent.
3 The respondent, the Commonwealth, seeks summary dismissal of the proceeding pursuant to an interlocutory application filed on 27 December 2017 on the ground that the application be set aside as incompetent pursuant to rule 13.01(1)(a) of the Federal Court Rules 2011 (the FCR). In the alternative, the Commonwealth seeks summary judgment under subs 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) and FCR rule 26.01(1)(c) or, in the further alternative, rule 16.21(1)(e) on the ground that the proceeding has no reasonable prospects of success. Specifically, the Commonwealth contends that the asserted duties would be inconsistent with the legislative scheme for the grant of the pension and the applicant has no reasonable prospect of establishing that those duties existed. The Commonwealth also initially submitted that, as the Commonwealth laws upon which the pleadings rely do not create a cause of action, it follows that this Court lacks jurisdiction to entertain the matter because there is no matter “arising under any laws made by the [Commonwealth] Parliament” for the purposes of subs 39B(1A)(c) of the Judiciary Act 1903 (Cth), being the only potentially relevant head of jurisdiction.
4 For the reasons set out below, the proceeding must be dismissed under s 31A of the FCA Act on the ground that it has no reasonable prospects of success.
5 The applicant also applied on 22 November 2017 for a pseudonym order under s 37AG of the FCA Act and for an order that the respondent’s solicitors “be removed from proceedings”. The making of the pseudonym order was not opposed and I was satisfied that it was necessary to prevent prejudice to the proper administration of justice (see subs 37AG(1)(a) of the FCA Act). The second order sought by the applicant was opposed. The basis for the application appears to be that the solicitors for the Commonwealth were instructed in proceedings against the applicant in the District Court of New South Wales, and it was alleged the respondent’s solicitors had then commenced proceedings against the applicant in the Supreme Court of New South Wales after she complained about their conduct in those proceedings. However, that does not afford a proper basis for injuncting the solicitors for the Commonwealth from continuing to act and the application for the second order is dismissed.
6 Finally, I note that by a letter from Centrelink dated 11 May 2018 received in evidence on the respondent’s interlocutory application, Centrelink advised the applicant that she had been granted the pension commencing on 12 March 2018. As such, the letter reflected the Department’s assessment that the applicant was eligible on and from 12 March 2018 for the pension. It did not bear upon whether the applicant had been eligible at the earlier date.
7 This matter has a complex history of case management. That history explains why I refused to permit the applicant to attend the resumed hearing of the summary dismissal application on 24 October 2018 by telephone and, when she did not attend the resumed hearing, made orders that the application would be determined in the applicant’s absence pursuant to FCR rule 17.04(b) and on the papers.
8 This matter was listed for a first case management conference on 18 October 2017. At that hearing, timetabling orders were made, among other things, for the applicant to file and serve particulars of the claim and the damages claimed and, after service of those particulars, for the filing of any application for summary dismissal by the respondent together with an affidavit in support. Orders were also made for the exchange of written submissions by the parties and for any application for summary dismissal to be listed for hearing on 7 February 2018.
9 In accordance with those orders, on 22 November 2017 the applicant filed particulars of the claim and damage, together with a document entitled “Particulars 21 November – Addition”. The Commonwealth filed the application seeking summary dismissal on 27 December 2017 and written submissions in support of its application on 25 January 2018. While I imply no criticism, those orders also required the applicant to file and serve written submissions seven days before the hearing of the application but no submissions were filed by her then or subsequently.
10 On 7 February 2018 the parties attended court for the hearing of the summary dismissal application, with the applicant appearing by telephone (as she had done at the first case management conference). The applicant became extremely distressed in the course of the hearing and threatened self-harm. I formed the view that the hearing should not continue in those circumstances. After the applicant had regained her composure, she and the respondent agreed to orders adjourning the matter and affording the applicant a further opportunity to put on any evidence or submissions in relation to the summary dismissal application. While I raised the option of having the summary dismissal application determined on the papers, the applicant wanted the matter to be relisted for hearing. As a result, I made orders relisting the application on 9 April 2018 for a closed hearing pursuant to subs 17(4) of the FCA Act and encouraged the applicant to have a support person present. I should also add that the applicant was upset that she had become so distressed and apologised to the Court at the hearing and subsequently in writing.
11 On 23 February 2018, the applicant requested that the matter be adjourned to May 2018, due to illness. This request was not opposed by the respondent. Due to the May Full Court period, the matter was listed on 12 June 2018, a date which the parties confirmed was suitable to them.
12 In March 2018, the Registry wrote at my instigation to the applicant (copied to the Commonwealth) inquiring as to whether the applicant wished the Court to make a pro bono referral and emphasising the desirability of the applicant obtaining legal advice in relation to the matter. The NSW Registry also conveyed the contact details for Justice Connect and Salvos Legal, both of which provide free legal assistance. On 9 March 2018 the applicant replied acknowledging the email, but did not request a pro bono referral.
13 On 26 March 2018, the applicant requested that the matter be referred to mediation. Notwithstanding that the respondent had sought summary dismissal of the application and did not consent to the referral, I considered that this was a matter in which every endeavour ought to be made to resolve the issues in a practical way without the need for a hearing. As such, on 6 April 2018, I made orders referring the matter to mediation on or before 30 June 2018, being the date requested by the respondents.
14 The mediation was scheduled for 29 May 2018. The Registrar, after consulting with me, made careful arrangements ensuring that the applicant would be able to attend the mediation without encountering the respondent or the respondent’s legal representatives in order to address her concerns. Unfortunately the attempt to reach a mediated resolution of the proceeding was unsuccessful.
15 Following conclusion of the mediation process, the Registry liaised with the parties on 19 June 2018 as to further listing dates. On 26 July 2018, the parties were notified by email that the application was listed for hearing of the summary dismissal application on 24 October 2018. At that time I suggested to the parties that in order to mitigate the distress that the proceedings caused the applicant, it might be preferable to make arrangements for the applicant to attend the hearing via video link from the Federal Circuit Court, with the presence of a support person, if she wished. On 24 August 2018, the applicant confirmed her availability, but requested to appear at the further hearing by telephone. On 28 August 2018, I advised that I had carefully considered that request, but had decided not to grant the applicant leave to appear by telephone. The applicant repeated her request to attend by telephone on 3 September 2018, and again I advised through the Registry that the applicant had not been granted leave to appear by telephone. In the email sent on my behalf, Registry also noted that orders determining the matter (including an order as to costs) may be made in the applicant’s absence if she did not attend Court at the specified time. In refusing leave to the applicant to appear by telephone, I was concerned to ensure that if she became distressed again during the course of the hearing, she would not be alone and people would be available to assist her. I also note that, in addition to the distress which the applicant displayed at the hearing on 7 February 2018, the Tribunal recorded in its reasons that the applicant had attended the hearing before it by telephone but became upset after 15 minutes and terminated the phone call.
16 On 11 October 2018, the applicant provided the Court with a letter dated 14 May 2018 from the respondent’s solicitors confirming that the decision to grant her the pension from 12 March 2018 had been made independently of her proceedings in this Court, but inviting her to enter into consent orders nonetheless. The applicant requested that I make orders in chambers dismissing the application for summary dismissal on the basis of this letter. At my request, my associate informed the parties by email that the matter could not proceed to a substantive hearing until I had decided the respondent’s interlocutory application, but that I was prepared to decide that application on the papers. The applicant did not consent to this course, and requested an extension of 2 weeks to make further submissions and for the hearing date to “be postponed for a 4-6 weeks there-after”. On 17 October 2018, I informed the parties through the Registry that I had refused the request for an adjournment. In my view, the parties had had ample opportunity to prepare for the hearing and ample notice of it. Furthermore, the applicant would have the opportunity to supplement her written submissions by oral submissions at the hearing, if she so wished.
17 Finally, on 23 October 2018 the respondent wrote to the Court requesting that it be permitted to rely primarily on its written submissions as a means of seeking to avoid any unnecessary stress on the parties. The applicant was copied in that email. On the same day the applicant emailed the Court reiterating that she had a valid claim, and stating that she would “not appear in person” at the hearing, but would be available on the telephone.
18 Given these matters, I consider that the applicant was given every opportunity to appear and make submissions, that she was aware that she had not been granted leave to appear by telephone, and that she was aware that orders may be made in her absence if she did not appear, I also consider that appropriate arrangements were put in place to enable her to appear while also minimising the distress which attending the hearing may cause and ensuring her safety. As such, when the applicant did not appear at the hearing, I considered that it was appropriate in all of the circumstances to make the orders for the summary dismissal application to be determined in the applicant’s absence pursuant to FCR rule 17.04(b) and on the papers.
19 The Commonwealth relies in support of its application upon the affidavits of Carolyne Michelle Jeeves affirmed on 21 December 2017 and Katherine Nicole Hooper affirmed on 19 December 2017.
20 I also had regard to the material filed by the applicant in addition to the pleadings and particulars already referred to, namely:
(1) the applicant’s affidavits affirmed on 15 September 2017 and 21 November 2017;
(2) a letter and attached “Final Report” from the medical records services at the Royal Prince Alfred Hospital confirming her attendance at the hospital from 19 to 20 December 2017 and emergency on 26 November 2017;
(3) a “ED Discharge Referral” dated 14 October 2018 from the Royal Prince Alfred Hospital; and
(4) the transcript of the hearing before the Tribunal on 6 December 2017, which was annexed to the applicant’s amended statement of claim.
21 As earlier explained, the applicant’s claim for the pension was rejected by the Department on the basis that she did not satisfy the eligibility criteria set out in s 94 of the Social Security Act. That section as at the time that the applicant applied for the pension and in its current form relevantly provides:
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables…
22 By subs 23(1) of the Social Security Act, “Impairment Tables” means the tables determined by an instrument made under subs 26(1) of the Social Security Act.
23 Section 26 in turn provides:
(1) The Minister may, by legislative instrument, determine tables relating to the assessment of work related impairment for disability support pension.
(2) An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.
Rules for applying Impairment Tables
(3) The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2).
(4) An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.
24 As earlier referred to, the Minister made the Determination under subs 26(1). Section 3 of the Determination defines “impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.” Condition is defined to mean “a medical condition”.
25 Under subs 6(3) of the Determination, an impairment rating can be assigned to an impairment only if: (a) the person’s condition causing that impairment is permanent; and (b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
26 The term “permanent” is defined in subss 6(4) to 6(7) of the Determination by reference to whether the condition has been fully diagnosed and fully treated and whether it has fully stabilised, namely:
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c) the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note: For reasonable treatment see subsection 6(7).
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
27 The applicant lodged an application for the pension on 15 February 2017. Correspondence then ensued between the Department and the applicant who provided further material to the Department. On 16 June 2017, the Department decided to reject the applicant’s claim for the pension.
28 Two internal reviews were undertaken by the Department. The first internal review by a subject matter expert affirmed the original decision. The second internal review was carried out by an Authorised Review Officer who spoke with the applicant by telephone on 21 July 2017. Later that day, the Authorised Review Officer affirmed the initial decision and provided written reasons which also advised of the applicant’s right to request an independent review by the Tribunal. In her reasons, the Authorised Review Officer found among other things that, based on the available medical evidence, the applicant’s “mental health condition cannot be assessed as being fully treated over a sufficient timeframe to be regarded as fully stabilised at the date of claim (or within 13 weeks of the date of claim). The impairment caused by this condition cannot be rated under the Impairment Tables.”
29 On 8 August 2017 the applicant applied to the Department for compensation for defective administration under the Compensation for Detriment caused by Defective Administration Scheme. This was rejected on the ground that the applicant had not yet exhausted her rights of review, in particular, to the Tribunal.
30 The applicant commenced these proceedings by originating application filed on 15 September 2017.
31 The applicant also applied for review to the Tribunal on 17 October 2017. That application was heard by the Tribunal on 6 December 2017, and the Tribunal affirmed the decision not to grant the applicant the pension on the same day. The Tribunal was satisfied that the applicant has a medical condition which causes impairments and that she therefore satisfies the first disability support pension qualification criterion under subs 94(1)(a) of the Social Security Act (Tribunal reasons at [11]). As to the second criterion under subs 94(1)(b), the Tribunal explained that:
13. Part 1 of the Determination explains how to determine meetings using the Impairment Tables. It provides that a decision-maker cannot assign an impairment rating to an impairment that is not “permanent”. The word “permanent” does not have its usual meaning. Rather, under subsection 6(4) of the Determination, a permanent impairment is one that is fully diagnosed, fully treated and fully stabilised and is more likely than not, in the light of available evidence, to persist for more than two years.
14. Paragraph 94(1)(b) of the Act provides that the second qualification for disability support pension is that the person’s impairments rate 20 points or more under the Impairment Tables…
32 The Tribunal then reviewed the medical evidence and found that:
15. … The tribunal considered that [the applicant’s] mental health condition was, at the date of the claim, fully diagnosed, but, in view of ongoing acute treatment well after the date of claim, not fully treated and not fully stabilised at the date of the claim, 15 February 2017. An impairment rating could not therefore be assigned.
33 As a consequence, the Tribunal determined that the applicant had a total impairment rating of nil points and therefore did not satisfy subs 94(1)(b) of the Social Security Act (Tribunal reasons at [16]). The Tribunal therefore affirmed the decision not to grant her the pension.
34 Section 31A of the FCA Act provides for the Court to summarily dismiss a proceeding in the following terms:
(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
35 The principles governing the application of s 31A are well established. First, the respondent as the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at [45] (Reeves J). Secondly, an order may be made under subs 31A(2) even if it is not possible to characterise the proceeding as bound to fail or hopeless: see e.g. C v Commonwealth of Australia [2015] FCAFC 113; (2015) 234 FCR 81 at [58] (the Court); and Riva NSW Pty Limited v Official Trustee in Bankruptcy [2017] FCA 188. Thirdly, the assessment required by s 31A of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at [28] (the Court). Finally, despite the threshold for summary dismissal having been lowered, the discretion must still be exercised with caution (Spencer v the Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)). Consistently with this, the discretion is concerned “with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form”: White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 at [50] (Lindgren J) (approved in Kowalski at [30] (the Court); see also Spencer at [23] (French CJ and Gummow J)).
6.2 The alleged claims in negligence, and for breach of statutory duty and defective administration
36 First, the applicant alleges that the Department owed her a duty of care which was breached by the Department ignoring medical evidence that her condition was fully diagnosed, treated and stabilised, and in denying her the pension despite the criteria having been met and a New South Wales Supreme Court finding that she had a disability. Secondly, the applicant alleges “a gross defective administration by the Respondent, in, ignoring medical advice, and support letters of those addressing all criteria of the DSP payment, and denying the Applicant her DSP payment.” Thirdly, the applicant seeks damages pursuant to s 23 of the Public Governance Act. The applicant contends in this regard that the Department knew or ought to have known that their actions would cause her much distress, damage and loss. The applicant also says that she has been denied a basic standard of living and has suffered economic loss in the form of unpaid pension payments, as well as emotional and psychological distress. These claims were elaborated upon in the applicant’s particulars of claim and damage.
37 It is apparent that the decisions refusing the applicant the pension have caused her significant distress. I also accept for the purposes of this interlocutory application that the refusal to grant her the pension has impacted upon her health and financial position in the manner which she alleges. However in order to recover damages and otherwise obtain the relief which she seeks, it is necessary that the applicant plead a cause of action known to the law which has some reasonable prospects of success in the sense which I explained at [34]-[35] above.
38 I accept the Commonwealth’s submission that the causes of action alleged do not have any reasonable prospects of success.
39 First, the criterion in subs 94(1)(b) of the Social Security Act was mandatory in the sense that the pension could not lawfully be granted unless the criterion was satisfied as at the relevant times. It follows that, having found that the criterion in subs 94(1)(b) was not met, it was the duty of the Department (and the Tribunal on review) to refuse the application for the pension. Yet the applicant effectively seeks to erect a common law duty of care to grant her pension application notwithstanding the finding that the criterion was not met. That duty of care is plainly inconsistent with the constraints imposed by s 94 of the Social Security Act. This inconsistency would ordinarily be a sufficient reason for denying the existence of the inconsistent duty of care: see Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at [60] (the Court).
40 Secondly and in any event, no common law duty of care arises with respect to the exercise of powers under the Social Security Act: Wang v Secretary, Department of Employment & Workplace Relations [2006] FCA 898 at [48] (Heerey J); Pickering v Centrelink [2008] FCA 561 (Pickering) at [15]-[21] (McKerracher J); see also by analogy Scott v Officer Pedler, Department of Social Security [2004] FCAFC 67; (2004) 80 ALD 283 at [94] (Conti J (with whose reasons Gyles and Allsop JJ relevantly agreed)) (Scott v Pedler). The reason for this is that the statutory power is subject to review. That review process is regarded as obviating the necessity for a common law duty of care. Nor has the Act been interpreted as evincing any intention to confer a private right of damages for breach of statutory duty given, as noted above, the stipulation by the Social Security Act of mechanisms for the review of decisions and the Act’s overriding purpose being for the benefit of society in general, as opposed to individual recipients of social welfare: Scott v Secretary, Department of Social Security [2000] FCA 1241; (2000) 65 ALD 79 at [17]-[19] (Beaumont and French JJ); Scott v Pedler at [93] (Conti J (with whose reasons Gyles and Allsop JJ relevantly agreed)). In this regard, as I have mentioned, the applicant had available three levels of review culminating in the statutory right of review by the Tribunal (each of which she exercised) from which an application, in turn, may be (but was not) made by way of judicial review to this Court challenging the legality of the Tribunal’s decision.
41 Thirdly, in the applicant’s particulars of claim and damage, she relies upon ss 23 and 25 of the Public Governance Act. Section 25 is located in Subdivision A of Division 3 of Part 2, which sets out “general duties of officials”. Section 25 provides:
(1) An official of a Commonwealth entity must exercise his or her powers, perform his or her functions and discharge his or her duties with the degree of care and diligence that a reasonable person would exercise if the person:
(a) were an official of a Commonwealth entity in the Commonwealth entity’s circumstances; and
(b) occupied the position held by, and had the same responsibilities within the Commonwealth entity as, the official.
(2) The rules may prescribe circumstances in which the requirements of subsection (1) are taken to be met.
42 Section 23 appears in Subdivision D of Division 2 of Part 2-2 and provides:
(1) The accountable authority of a non-corporate Commonwealth entity may, on behalf of the Commonwealth:
(a) enter into arrangements relating to the affairs of the entity; and
(b) vary and administer those arrangements.
(2) An arrangement includes a contract, agreement, deed or understanding.
(3) The accountable authority of a non-corporate Commonwealth entity may, on behalf of the Commonwealth, approve a commitment of relevant money for which the accountable authority is responsible.
43 The “accountable authority” here is the Secretary: see s 12, Public Governance Act.
44 As in the case of the Social Security Act, any claim relying upon the Public Governance Act depends upon the applicant establishing that this Act is intended, as a matter of statutory construction, to confer a private right of action for damages: O’Connor v S. P. Bray Ltd (1937) 56 CLR 464 at 477-478 (Dixon J); Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 424 (Brennan CJ, Dawson and Toohey JJ). However no such intention can be discerned from the provisions of the Public Governance Act. Section 23 authorises the Secretary as the relevant accountable authority of the non-corporate Commonwealth entity to enter into arrangements, such as contracts, which may in turn provide for the making of payments to individuals. However, the section has nothing to say in terms of conferring private rights to compensation for breaches of duty. Nor does s 25 or any other provision confer a private right of action: see by analogy Deputy Commissioner of Taxation v Frangieh (No 3) [2017] NSWSC 252; (2017) 321 FLR 1 at [672] (Harrison AsJ); Shamir v Commonwealth of Australia (Australian Taxation Office) [2015] FCA 1463 at [11] (Pagone J).
45 Finally, I note (as earlier observed) that the Tribunal’s decision post-dated the application to this Court and this is not an application for judicial review of that decision. Nonetheless, and for the sake of completeness only, no error is in any event apparent in the Tribunal’s consideration of the matters upon which the applicant seeks to rely as founding compensable error. The first matter relied upon by the applicant is a letter dated 18 July 2017 in which Dr Kumar, a medical practitioner, expressed the opinion that her condition “has now been fully treated, and stabilised, and will not show any further improvement”: see also amended statement of claim at [15]. The Tribunal apparently accepted that opinion, and this may well have underlain (at least in part) the Tribunal member’s observations at the hearing that he had no doubt that in the end the applicant would get the pension. However, as the Tribunal observed in its reasons at [15], Mr Kumar’s opinion was given “five months after the date of claim”. Given that other medical evidence of her condition in April 2017 (to which the Tribunal also referred at [15]) indicated that her condition had not then stabilised, the Tribunal concluded that “her mental health condition was, at the date of claim, fully diagnosed, but, in view of ongoing acute treatment well after the date of claim, not fully treated and not fully stabilised at the date of claim, 15 February 2017.” That conclusion was open to the Tribunal to find, based upon the medical evidence before it. That being so, no error is apparent in the Tribunal’s finding that an impairment rating could not therefore be assigned and the applicant did not satisfy the criteria in subs 94(1)(b) of the Social Security Act.
46 The second matter on which the applicant relies is the perceived inconsistency between the Tribunal’s decision, on the one hand, and a finding by a judge of the New South Wales Supreme Court that she had a psychiatric disability, on the other hand. However, as the Commonwealth submits, any such finding by the Supreme Court would not have depended on satisfaction of the criteria for the grant of the pension and, in particular, the requirement that the impairment be “permanent” in the specific sense in which that term is defined in the Determination: see above at [26].
47 It follows that, even on a consideration of the applicant’s materials, any cause of action in negligence or for breach of statutory duty has no reasonable prospects of success.
48 The Commonwealth initially submitted in writing that, there being no cause of action for breach of statutory duty, it followed that there was no federal claim. As a result, the Commonwealth submitted that the Court lacked jurisdiction because there was no “matter … arising under any laws made by the Parliament …” for the purposes of subs 39B(1A)(c) of the Judiciary Act 1903 (Cth). In support of that submission, the Commonwealth relied upon the decision in Pickering at [25] (McKerracher J). However, at the hearing on 24 October 2018, Counsel for the Commonwealth very properly drew the Court’s attention to two authorities said to indicate by analogy that the Court may nonetheless have jurisdiction: LNC Industries Limited v BMW (Australia) Limited (1983) 151 CLR 575 and Australian Solar Mesh Sales Pty Ltd v Anderson [2000] FCA 864; (2000) 101 FCR 1. Neither of these decisions are mentioned in Pickering and do not appear to have been drawn to the Court’s attention in that case. In the circumstances, however, it is unnecessary for me to endeavour to resolve these authorities as the application must be summarily dismissed in any event on the basis that it has no reasonable prospects of success.
49 For these reasons, the application is dismissed with costs.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. |
Associate:
