Clement v Comcare - [2008] FCA 1780

FEDERAL COURT OF AUSTRALIA
Clement v Comcare [2008] FCA 1780
KRISTINE CLEMENT v COMCARE, AUSTRALIAN BUREAU OF STATISTICS and COMMONWEALTH OF AUSTRALIA
ACD 4 OF 2008
KRISTINE CLEMENT v COMCARE
ACD 5 OF 2088
STONE J
1 DECEMBER 2008
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 4 OF 2008

BETWEEN:

KRISTINE CLEMENT
Applicant

AND:

COMCARE
First Respondent

AUSTRALIAN BUREAU OF STATISTICS
Second Respondent

COMMONWEALTH OF AUSTRALIA
Third Respondent

JUDGE:

STONE J

DATE OF ORDER:

1 DECEMBER 2008

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:
1.The application be dismissed with costs.

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 eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 5 OF 2008

BETWEEN:

KRISTINE CLEMENT
Applicant

AND:

COMCARE
Respondent

JUDGE:

STONE J

DATE OF ORDER:

1 DECEMBER 2008

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:

The application be dismissed with costs.

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 eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 4 OF 2008

BETWEEN:

KRISTINE CLEMENT
Applicant

AND:

COMCARE
First Respondent

AUSTRALIAN BUREAU OF STATISTICS
Second Respondent

COMMONWEALTH OF AUSTRALIA
Third Respondent

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 5 OF 2008

BETWEEN:

KRISTINE CLEMENT
Applicant

AND:

COMCARE
Respondent

JUDGE:

STONE J

DATE:

1 DECEMBER 2008

PLACE:

CANBERRA

REASONS FOR JUDGMENT

The present application is for an extension of time within which to appeal from interlocutory orders made by Emmett J on 20 December 2007 and for leave to appeal from those orders. His Honour made orders in proceeding ACD 5 of 2007 and in ACD 19 of 2007. In the latter proceeding, ACD 19 of 2007, his Honour ordered that the application be dismissed. In the former proceeding, ACD 5 of 2007, his Honour made the following orders:
1.Leave to file the proposed amended application of 7 September 2007 be refused.
2.The proceeding so far as it claimed relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) against the first respondent be dismissed.
3.All other claims for relief against the First Respondent and all claims for relief against the Third and Fourth Respondents as made in the application filed on 1 February 2007 be struck out.
4.The amended application purportedly filed on 7 September 2007 be struck out.
5.The amended applications of 22 March 2007, 28 March 2007, 19 April 2007 and 24 May 2007 be struck out.
6.Leave be granted to the Applicant to file an amended application as against the second respondent claiming relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect of the failure of the Second Respondent to make a payment to the Applicant under section 33 of the Financial Management and Accountability Act

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clement v Comcare

Details

AGLC: Clement v Comcare [2008] FCA 1780
Case: [2008] FCA 1780
Decision Date: 1 December 2008

CaseChat Overview and Summary

In the case of Clement v Comcare, the plaintiff, Clement, brought claims against Comcare, the Bureau, and the Commonwealth. These claims included relief under the Administrative Decisions (Judicial Review) Act 1977, and claims in negligence, deceit, and breach of duty. The court had to determine whether the plaintiff's claims had any reasonable prospect of success and whether the plaintiff should be allowed to file a further amended application.

The legal issues before the court were twofold: firstly, whether the plaintiff's proposed further amended application had a reasonable prospect of success, and secondly, whether the claims in negligence, deceit, and breach of duty were appropriately joined with the judicial review proceeding. The court had to assess the merits of the claims and determine whether they should be struck out or allowed to proceed in a separate proceeding.

In delivering his decision, the judge concluded that the claims as presently formulated had no reasonable prospect of success. The proposed further amended application was deemed to be nothing more than a proposal at that stage, and leave to file it had not yet been granted. Consequently, the judge ruled that the plaintiff should not have leave to file the proposed further amended application and that if the Registry had treated the document as filed, it should be struck out. The judge also dismissed the proceeding in so far as it sought ADJR Act relief against Comcare, and noted that the claims in negligence, deceit, and breach of duty were not appropriately appended to the judicial review proceeding as it was currently constituted.

The judge concluded that the claims should be dismissed in so far as they related to the judicial review proceeding, but noted that if the plaintiff were to commence another proceeding by filing a properly pleaded statement of claim in a court of competent jurisdiction, it would be a matter for the relevant court to deal with any application made by the defendant or respondent to any such proceeding. The appeals from the orders were dismissed with costs, as the judge was satisfied that the orders made by his Honour in both proceedings were entirely appropriate and that the appeals would have no prospect of success.

Orders

Orders of the court

1. The application be dismissed with costs.

Note:

1. The application be dismissed with costs.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

STONE J

In so far as his Honour was able to understand the claims, he held that “as presently formulated” they had no reasonable prospect of success and stated his conclusion thus:The document of 7 September 2007 is, at this stage, no more than a proposed further amended application. Leave to file it has not yet been granted. The Applicant should not have leave to file the proposed further amended application. In so far as the Registry has treated the document as having been filed, it should be struck out.Since I propose to dismiss proceeding ACD 5 of 2007 in so far as it seeks ADJR Act relief against Comcare, there would be no utility in permitting the Applicant to file a further document pleading, in some more comprehensible form, the various other claims against Comcare, the Bureau and the Commonwealth that are ventilated in the proposed further amended application. The claims in negligence, deceit and breach of duty are not appropriately appended to the judicial review proceeding as presently constituted. Proceeding ACD 5 of 2007 should be dismissed in so far as it relates to those claims.However, that dismissal should not operate as a bar. If the Applicant were to commence another proceeding, by filing a properly pleaded statement of claim in a court of competent jurisdiction, seeking damages for breach of a duty of care, for deceit or for negligence, it would be a matter for the relevant court to deal with any application made by the defendant or respondent to any such a proceeding.Conclusion As the above account indicates, his Honour gave careful consideration to the issues arising in both proceedings before him. I am satisfied that the orders made by his Honour in both proceedings were in entirely appropriate. Appeals from the orders would have no prospect of success. For this reason the application for an extension of time and for leave to appeal is dismissed with costs.

Ratio Decidendi

Legal Principle Established

Established by: STONE J

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IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 4 OF 2008

JUDGE:	STONE J
DATE OF ORDER:	1 DECEMBER 2008
WHERE MADE:	CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 5 OF 2008

BETWEEN:	KRISTINE CLEMENT Applicant
AND:	COMCARE Respondent