Clement v Comcare - [2007] FCA 2039

FEDERAL COURT OF AUSTRALIA
Clement v Comcare [2007] FCA 2039
KRISTINE CLEMENT v COMCARE AND ORS
ACD5 OF 2007
KRISTINE CLEMENT v COMCARE
ACD19 OF 2007
EMMETT J
20 DECEMBER 2007
SYDNEY (HEARD VIA VIDEO LINK TO CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD5 OF 2007

BETWEEN:

KRISTINE CLEMENT
Applicant

AND:

COMCARE

First Respondent

PARLIAMENTARY SECRETARY TO THE MINISTER FOR FINANCE AND ADMINISTRATION

Second Respondent

AUSTRALIAN BUREAU OF STATISTICS

Third Respondent

COMMONWEALTH OF AUSTRALIA
Fourth Respondent

JUDGE:

EMMETT J

DATE OF ORDER:

20 DECEMBER 2007

WHERE MADE:

SYDNEY (VIA VIDEO LINK TO CANBERRA)

THE COURT ORDERS THAT:
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 1997 (Cth).
7.Except as provided above the Applicant shall not file any further documents without leave of the Court.

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

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD19 OF 2007

BETWEEN:

KRISTINE CLEMENT
Applicant

AND:

COMCARE

Respondent

JUDGE:

EMMETT J

DATE OF ORDER:

20 DECEMBER 2007

WHERE MADE:

SYDNEY (VIA VIDEO LINK TO CANBERRA)

THE COURT ORDERS THAT:
1.        The application be dismissed
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD5 OF 2007

BETWEEN:

KRISTINE CLEMENT
Applicant

AND:

COMCARE
First Respondent

PARLIAMENTARY SECRETARY TO THE MINISTER FOR FINANCE AND ADMINISTRATION
Second Respondent

AUSTRALIAN BUREAU OF STATISTICS
Third Respondent

COMMONWEALTH OF AUSTRALIA
Fourth Respondent

ACD19 OF 2007

BETWEEN:

KRISTINE CLEMENT
Applicant

AND:

COMCARE

Respondent

JUDGE:

EMMETT J

DATE:

20 DECEMBER 2007

PLACE:

SYDNEY (VIA VIDEO LINK TO CANBERRA)

REASONS FOR JUDGMENT

Ms Kristine Clement (the Applicant) commenced proceeding ACD 5 of 2007 on 1 February 2007. The respondents to proceeding ACD5 of 2007 are Comcare, the Parliamentary Secretary to the Minister for Finance and Administration (the Parliamentary Secretary), the Australian Bureau of Statistics (the Bureau) and the Commonwealth of Australia. On 30 May 2007, the Applicant commenced proceeding ACD 19 of 2007 against Comcare. Both proceedings are…

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 [2007] FCA 2039
Case: [2007] FCA 2039
Decision Date: 20 December 2007

CaseChat Overview and Summary

The case of Clement v Comcare involved the applicant seeking relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) against Comcare, along with claims for damages in negligence, deceit, and breach of duty against Comcare, the Bureau, and the Commonwealth. The Federal Court was required to determine whether the claims made against Comcare were appropriately within the scope of the judicial review proceeding, and whether the applicant should be granted leave to file a further amended application.

The court examined the nature of the claims made against Comcare, finding that none of the particulars related to matters concerning Comcare, and that Comcare owed no duty to protect the applicant from improprieties by the Bureau. The court found that the claims in negligence, deceit, and breach of duty were not appropriately appended to the judicial review proceeding. The court held that the application should be dismissed as it related to those claims, but that this dismissal should not operate as a bar to the applicant commencing another proceeding seeking damages.

The court ordered that leave to file the proposed amended application of 7 September 2007 be refused, that the proceeding be dismissed as it claimed relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) against the first respondent, and that 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. The court also ordered that the amended application purportedly filed on 7 September 2007, and the amended applications of 22 March 2007, 28 March 2007, 19 April 2007, and 24 May 2007 be struck out. However, the court granted leave 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 1997 (Cth).

Orders

Orders of the court

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 1997 (Cth).

1. The application be dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

EMMETT J

The particulars of the claim against Comcare are identical to the particulars provided in relation to the claim against the Bureau. None of the particulars appears to relate to matters concerning Comcare. The only duty of care that the Applicant claims was owed to her by Comcare was a duty to protect her from improprieties towards her by the Bureau. There is no such duty.CONCLUSION 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 ACD5 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 ACD5 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.

Ratio Decidendi

Legal Principle Established

Established by: EMMETT J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD5 OF 2007

BETWEEN:	KRISTINE CLEMENT Applicant
AND:	COMCARE First Respondent PARLIAMENTARY SECRETARY TO THE MINISTER FOR FINANCE AND ADMINISTRATION Second Respondent AUSTRALIAN BUREAU OF STATISTICS Third Respondent COMMONWEALTH OF AUSTRALIA Fourth Respondent
JUDGE:	EMMETT J
DATE OF ORDER:	20 DECEMBER 2007
WHERE MADE:	SYDNEY (VIA VIDEO LINK TO CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD19 OF 2007