FEDERAL COURT OF AUSTRALIA

EOX17 v Commonwealth of Australia [2019] FCA 621

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s request for an adjournment of the hearing is refused.

2.    The application for an extension of time and leave to appeal be dismissed.

3.    The applicant 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.

REASONS FOR JUDGMENT

GRIFFITHS J:

Introduction

1    The applicant seeks leave to appeal from the orders and judgment of a Judge of this Court, which is reported as EOX17 v Commonwealth of Australia [2018] FCA 1656. Her Honour summarily dismissed the applicant’s originating application filed on 14 September 2017 which sought damages, including exemplary and/or aggravated damages for negligence, breach of statutory duty and defective administration. Relevant background to the present proceedings is a decision of the Administrative Appeal Tribunal (AAT) which found that, although the applicant had a psychiatric impairment, she was not eligible for the Disability Support Pension (DSP) because her psychiatric impairment was not “permanent” at the relevant time. Her Honour held that the originating application had no reasonable prospects of success and it was summarily dismissed.

2    The applicant requires an extension of time under r 35.14 of the Federal Court Rules 2011 (Cth) (2011 FCRs). The applicant failed to provide a written outline of submissions in accordance with the Court’s orders which were made by consent on 1 February 2019. The applicant represented herself.

The applicant’s adjournment request

3    On 17 April 2019, the applicant sent an email to the Registry and sought an adjournment of the hearing for a period of four weeks based upon her health issues. She annexed a copy of the second page of a two page document which was electronically signed by a Dr Alan Sacks. The first page was missing. The second page also contained redactions. The material under the heading “Conclusion” is as follows:

Conclusion:

Prominence in the region of the right lobe of the liver with a probable Riedel’s lobe. Hypodense peripheral lesion in the lateral right lobe of the liver measuring 0.7cm x 1.2cm, not well assessed. This may represent a cyst or small haemangioma. Follow-up liver ultrasound examination is recommended. Mild splenomegaly for which there is a wide differential diagnosis requiring further clinical correlation. [redacted]. There appears to be a tiny fat-containing umbilical hernia and [redacted].

Incidental longstanding pars defects noted at L5 with mild prominence of the lower lumbar lordosis and moderate spondylolisthesis of L5-S1 with degenerative change at the lumbosacral disc not well assessed at this examination. Followup CT or MRI of the lumbar spine would be helpful.

4    On 23 April 2019, the applicant sent a second email to the Registry containing two attached documents which the applicant said recorded recent visits to a medical practice. The first document appeared to be a computer printout of various medical consultations by the applicant with several medical practitioners during the period 5 March 2019 to 15 April 2019. Although there is a column headed “Item No” and various numbers appear alongside each of the consultations (which presumably are items for Medicare purposes), there is no explanation in the document of the applicant’s particular medial conditions. The second was a document dated 18 April 2019 written on the letterhead of the Sydney CBD Medical Centre & Skin Cancer Clinic, which stated that she had attended that practice 16 times during the period 26 April 2018 to 14 February 2019 inclusively.

5    By an email dated 24 April 2019, the respondent advised that it opposed the adjournment. The parties were advised by an email dated 26 April 2019 from the Registry that the application for an adjournment would be heard at the commencement of the hearing scheduled for 3 May 2019 and that the applicant should file any further evidence by the close of business on 1 May 2019. The parties were also advised that, if the adjournment application was refused, they should be ready to proceed with the hearing.

6    By email dated 29 April 2019, the applicant reiterated that she was not well and that the matter should be adjourned for four weeks. She stated that she had been referred to other specialists and deemed to be unfit for normal duties. She said that she would not be able to run a hearing if the adjournment application was refused. The applicant annexed a medical certificate dated 28 April 2019 by a Dr Cuong Vo which certified that the applicant is unable to work from 30 April 2019 to 3 May 2019 inclusively “due to a medical condition”. Also annexed was a further document attached to a letter bearing Dr Vo’s letterhead. The third annexed document was the same document that had been attached to the 23 April 2019 email.

7    The applicant also relied upon an affidavit affirmed by her on 30 April 2019 in support of her adjournment application. In addition to filing the affidavit, the applicant sent the affidavit by email to my Associate and reiterated her request for an adjournment. In her affidavit, she deposed that she had not been well for some time and had repeated medical visits. She added that “an abdominal dye contrast CT, has revealed an abnormality, of which, explains, the pain, and various symptoms, I have endured, the past 6-12 months (sic)”. She said that she had been sent to a further specialist the previous week and was currently undergoing further tests.

8    The applicant annexed part of a document dated 28 February 2019 from St Vincent’s Hospital which indicated that she had been hospitalised for one day on 27 February. She also annexed the same document that was attached to her emails dated 23 and 29 April 2019 of various medical consultations between 5 March and 15 April 2019. In addition, she annexed the second document provided in the 23 April 2019 email, being the letter recording visits to the Sydney CBD Medical Centre & Skin Cancer Clinic. The applicant also annexed a document under the letterhead of Darlinghurst Medical Centre which stated that there had been a “nursing request” in respect of the applicant on 8 March 2019. The nature of the nursing request was not revealed. There was also a “Medical Imaging Request Form” dated 5 March 2019 which recorded that the requesting doctor was one Dr Lala Dipak Kumar. Finally, the applicant annexed a further copy of Dr Vo’s medical certificate dated 28 April 2019.

9    The applicant sent four emails dated 2 May 2019 to my Associate. The first asked whether the Court had determined whether it could grant the adjournment in Chambers.

10    The second email was in response to correspondence by the respondent. The applicant stated that she would not be attending the hearing on 3 May because she was not well and that she was undergoing further (unspecified) tests on 3 May 2019 and could not eat or drink for 12 hours beforehand. Following this correspondence, the parties were informed that the position remained that the adjournment application would be heard and determined at the beginning of the hearing listed on 3 May 2019.

11    The third email dated 2 May 2019 reiterated that the applicant would not attend the hearing. She requested that her affidavit dated 30 April 2019 be read in Chambers “to make such a determination to save the time and costs of the Court and Respondant (sic)”.

12    The fourth email asked the Court to have regard to a letter dated 14 May 2018 which the applicant had received from the respondent’s solicitor. The letter stated that, in light of the decision to grant the DSP to the applicant effective 12 March 2018, which was said to be independent of the proceedings, the respondent was willing to enter into consent orders which would have the proceedings below dismissed, with no order as to costs. The applicant contended that this letter showed that the respondent’s “incompetent staff” were aware the whole time that she was eligible for the DSP and that they should have checked earlier with her medical practitioners and not wait until she had commenced the proceedings below. The applicant reiterated her request for an adjournment and stated that she had nearly died in 2017 because of the stress.

13    Based on the limited medical evidence before the Court, it appears that the applicant suffers from back problems and a hernia and that an ultrasound has been recommended for a peripheral vision. The Court also noted that the grant of the DSP to the applicant was based on the acceptance that she had a psychiatric impairment. None of the medical evidence demonstrates, however, that the applicant was unable to represent herself at the hearing. The medical certificate dated 28 April 2019 simply states that she is unable to work for the period from 30 April 2019 to 3 May 2019. It also refers to an unspecified “medical condition”. The medical certificate is silent on the applicant’s capacity to represent herself at the hearing. The additional material dated 28 April 2019 takes that matter no further. I accept that the annexures to the applicant’s affidavit affirmed 30 April 2019 indicate that she has attended a skin cancer clinic on numerous occasions in the period 26 April 2018 to 14 February 2019, but the nature of those attendances is unexplained and it is entirely unclear whether they affect her capacity to participate in the hearing. The same can be said with respect to the other annexures to the affidavit, including the “nursing request” on 8 March 2019, the “Medical Imaging Request Form” on 5 March 2019 and the overnight admission to hospital on 27 February 2019.

14    I am not satisfied that the applicant has established a sufficient basis for adjourning the hearing on medical grounds. It may be accepted that litigation causes stress to most, if not all litigants, and this may particularly be the case for the applicant given her psychiatric impairment, but there is no reason to believe that the applicant’s stress will be ameliorated to any appreciable extent if the hearing is adjourned.

15    For these reasons, the adjournment was refused.

The proceedings at first instance

16    The applicant sought damages in negligence and for breach of statutory duty under the Public Governance Performance and Accountability Act 2013 (Cth) (the PG Act). The alleged negligence and breach of statutory duty related to an unsuccessful application made by the applicant on 15 February 2017 for the DSP. The application was refused by the Department of Human Services, then again on internal review and finally on review by the Administrative Appeals Tribunal (AAT). At each level of decision-making, it was found that the applicant did not satisfy a mandatory criterion for the grant of the DSP. In particular, at the time the claim was made, the applicant’s 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, with the consequence that she could not satisfy the mandatory criterion that her impairment rate at least 20 points under the Impairment Tables. It might be noted that the applicant did not seek a second level review in the AAT, although it was open to her to do so.

17    After the proceedings in the Court below were commenced, by letter dated 12 March 2018 the respondent informed the applicant that she had been granted the DSP effective from that date. It may be inferred that, on that date (as opposed to any earlier date, including the date the applicant lodged her claim for the DSP), the respondent was not satisfied that the applicant met the mandatory criteria for a DSP. In essence, the applicant’s complaints that gave rise to her originating application are that it was negligent of the respondent not to have granted her the DSP earlier than it did.

18    The background facts to the matter are set out in the primary judgment at [27] to [33] and need not be repeated. The procedural history leading up to the hearing by the primary judge is also traced in [7] to [18] of her Honour’s reasons for judgment. The primary judge held that:

(a)    the alleged duty of care was contrary to authority (particularly Sullivan v Moody [2001] HCA 59; 207 CLR 562) and was also inconsistent with the Social Security Act 1991 (Cth) (the SS Act); and

(b)    neither the SS Act nor the PG Act created a private right of action for damages.

Her Honour fully explained the basis for these conclusions, with reference to many relevant authorities.

19    The primary judge found it unnecessary to endeavour to resolve some apparent inconsistencies between legal authorities on the question whether there was “a matter” so as to enliven the Court’s jurisdiction (see at [48]).

20    For these reasons, the primary judge held that the originating application had no reasonable prospects of success and it was summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act), with costs.

The proceedings in this Court

21    As noted above, the applicant did not attend the hearing on 3 May 2019. The proceeding progressed in her absence.

22    As previously mentioned, the applicant required an extension of time as well as leave to appeal. She filed an affidavit dated 18 December 2018 in which she explained that the few weeks delay in filing her application for leave to appeal was because she had tried to resolve the matter by asking the respondent on 30 November 2018 whether they would simply “back-pay” her the DSP owed since July 2017, to which she said she had received no response.

23    The proposed grounds of appeal are that the primary judge erred in holding that:

(a)    the proceedings be dismissed under s 31A(2) of the FCA Act;

(b)    the respondent did not owe a duty of care to the applicant;

(c)    the respondent did not breach that duty of care, causing the applicant loss and damage;

(d)    that the Federal Court does not have jurisdiction to determine the matter; and

(e)    the applicant should pay the respondent’s costs.

24    In her affidavit dated 18 December 2018, the applicant elaborated upon the proposed grounds as follows (without alteration):

9.    I was not present at the hearing, when my claim was summarily dismissed, and, also noted to this Court, that the Respondent, had asked me to withdraw my claim, after, it was found, I was in fact, eligible for the DSP.

10.    Per para 5 above - Dr Babidge had seen me in April 2017, and, when called later in March 2018 - did confirm, that I was eligible for the DSP. He was not called, when, my first assessment, for DSP, was done.

11.    If the Respondent, had not been negligent in their duties, and had called medical professionals, as they are meant to, in the assessment process, I would have been granted, by DSP, at the latest, in July 2017. I had not worked, since 2015, due to the said illness.

12.    I missed out, on nearly 11 months, of DSP payment, as a result of the Respondents negligence.

13.    During that time, I became seriously ill, my condition worsened, and near homelessness resulted as I could not afford, my basic standard of living, because, I was denied, my basic benefit, of which, I was medically entitled to.

14.    This is a serious oversight, of the Respondent, and, I should be present, to present my case, and, this matter, should not have been, summarily dismissed.

15.    Ill health, sis serious (sic), and, as a client of the Respondent, they owed , a duty of care, to ensure, I received the correct care, and, I did not receive that care, and befit, because of their negligence and oversight above. Their staff members, assessing the DSP, should, as a bare minimum, be consulting with medical professionals - not, taking it upon themselves, to be "doctors", and well as assessors - when, they are not, medically trained.

16.    As such, given the application was dismissed in my absence, and, liability in fact did exist, I ask, this appeal, be allowed.

25    The respondent filed a detailed outline of submissions. They are substantially reflected in my reasons for refusing to extend time or granting leave to appeal.

Analysis and determination

26    Section 37(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) provides that the Secretary must determine that a claim for a social security payment is to be granted if the Secretary is satisfied that the claimant is qualified for the social security payment and the social security payment is payable.

27    Section 94(1) of the SS Act relevantly provides that a person qualifies for the DSP 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; and

(c)    one of the following applies:

(i)    the person has a continuing inability to work; or

(ii)    the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and

(d)    the person has turned 16.

28    The applicant must meet these conditions as at the date of the application for the pension or in the subsequent 13 weeks. (In this case, that meant that the Applicant could qualify for the pension within 13 weeks of 15 February 2017, that is by 17 May 2017; whereas the applicant asserts an entitlement from July 2017.)

29    "Impairment Tables" are the tables determined by an instrument under s 26(1) of the SS Act:

Impairment Tables

(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.

30    The Minister has made a determination under s 26, being the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).

31    Section 6(3) of the Determination provides that an impairment rating can only be assigned to an impairment 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.

32    The term "permanent" is defined in ss 6(4) and 6(5) of the Determination by reference to whether the condition has been fully diagnosed and fully treated, whether it has fully stabilised and is more likely than not, in light of the available evidence, to persist for more than 2 years.

33    Part 4 of the Administration Act provides for internal merits review of decisions to refuse the DSP, and Pt 4A provides for two levels of merits review in the AAT. Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) provides for appeals on questions of law to this Court.

Leave to appeal

34    Generally speaking, the test for whether leave to appeal from an interlocutory judgment will be granted is whether:

(a)    in all the circumstances of the case, the decision is attended by sufficient doubt to warrant it being reconsidered by the appellate court; and

(b)    substantial injustice would result if leave were refused supposing the decision to be wrong.

35    For the reasons set out below, the orders and judgment below are not attended by any or any sufficient doubt to warrant their reconsideration. Further, there would be no substantial injustice if leave were refused supposing the decision to be wrong. In particular, the applicant has now been granted a DSP (albeit from a date later than the date at which she claims to have been entitled to it), and the multiple levels of merits review (and provision for appeal on a question of law to this Court) provide ample avenues of redress for any grievance with the earlier refusal.

Proposed appeal ground 1 - Section 31A(2) of the FCA Act

36    There is no arguable error in the primary judge’s summary of the relevant principles in [35] of the reasons for judgment.

Proposed appeal grounds 2 and 3 - Duty of care

37    I am not satisfied that there are reasonable prospects of success in respect of the proposed grounds concerning the alleged duty of care and its breach. That is so for the following reasons.

38    First, the alleged common law duty of care to grant the applicant the DSP is inconsistent with the terms of s 94(1)(b) of the SS Act, the effect of which is that the DSP could not lawfully be granted unless the mandatory criterion referred to above is satisfied at the relevant times. This inconsistency is sufficient to deny the existence of an inconsistent duty of care (see Sullivan v Moody [2001] HCA 59; 207 CLR 562 at [60]).

39    Secondly, there is ample authority to support the primary judge’s conclusion at [40] that no common law duty of care arose with respect to the exercise of powers under the SS Act in circumstances where the power was subject to review (see the cases cited by her Honour at [40]).

40    Thirdly, the applicant does not have reasonable prospects of establishing any error on the part of the primary judge’s analysis and findings concerning the PG Act and why that legislation did not create a private right of action for damages.

41    I also accept the respondent’s submission that the matters of fact relied upon by the applicant in support of proposed grounds of appeal 2 and 3 do not reveal an arguable case that she had a cause of action in negligence which could be repleaded:

(a)    A central element of the applicant's case was that the AAT was of the view that she was entitled to the DSP. However, the AAT affirmed the original decision, finding that she was not entitled to the DSP at the relevant time. In particular, "in view of ongoing acute treatment well after the date of claim", the condition was "not fully treated and not fully stabilised" at the time of the application. The AAT’s point, made in the course of the hearing, was that a future application could be made, which, in the AAT's view, would have good chances of success, on the basis that the applicant's condition would, in the interim, have become fully treated and fully stabilised. The applicant did not ultimately pursue review of the AAT's decision by way of "AAT second review" and did not seek to appeal against the AAT's decision on the basis that the AAT misunderstood the test that it had to apply.

(b)    The second matter relied upon was a letter dated 18 July 2017, in which a doctor expressed the opinion that the applicant's condition was “fully treated, and stabilised, and [would] not show any further improvement”. The AAT was taken to that letter, but concluded that it related to the applicant's condition well after the relevant time.

(c)    The last matter relied upon was a perceived inconsistency between the outcome of the applicant’s DSP application and a finding by a Justice of the Supreme Court of New South Wales that she had a psychiatric disability. Significantly, however, any such finding did not turn on the mandatory criterion for the grant of the DSP and, in particular, the requirement of permanence as defined. Further, the finding was made, on the applicant's evidence, in July and August 2017.

Proposed ground of appeal 4 - Jurisdiction

42    Contrary to the assumption of proposed ground of appeal 4, the primary judge did not determine that the Court did not have jurisdiction to determine the matter. As noted in [16] above, the primary judge held that it was unnecessary to resolve this matter.

Proposed ground of appeal 5 - Costs

43    The costs order was consistent with the normal rule that costs follow the event and the applicant has not demonstrated reasonable prospects of success if this ground were agitated.

Conclusion

44    For these reasons, even if I accepted that the applicant had provided a reasonable explanation for the delay, I would not extend time because I consider that all her proposed grounds of appeal lack sufficient prospects. Nor am I persuaded that substantial injustice would result if leave were refused having regard to the matters set out in [34] above.

45    Necessarily, therefore the application for leave to appeal must also be dismissed, with costs.

Associate:

Dated:    3 May 2019