Commonwealth of Australia v Scott

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FEDERAL COURT OF AUSTRALIA

Commonwealth of Australia v Scott [2011] FCA 768

Citation: Commonwealth of Australia v Scott [2011] FCA 768
Parties: COMMONWEALTH OF AUSTRALIA v RALPH SCOTT and SOPHIE SCOTT
File number: VID 402 of 2011
Judge: NORTH J
Date of judgment: 20 June 2011
Date of hearing: 20 June 2011
Place: Melbourne
Division: GENERAL DIVISION
Category: No catchwords
Number of paragraphs: 23
Counsel for the Applicant: Mr P Ginnane
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the Respondents: The Respondents appeared in person

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 402 of 2011
BETWEEN:

COMMONWEALTH OF AUSTRALIA
Applicant
AND:

RALPH SCOTT
First Respondent

SOPHIE SCOTT
Second Respondent

JUDGE:

NORTH J

DATE OF ORDER:

20 JUNE 2011

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The respondents may not institute any proceeding in the Federal Court of Australia without leave of the Court.

2.The affidavits and submissions filed on behalf of the parties in VID 1020 of 2008, in support of, and in opposition to the notice of motion filed on behalf of the second respondent in that proceeding on 23 June 2009 be treated as filed in this application.

3.The respondents pay the costs of the applicant including costs incurred by the applicant in relation to the preparation of affidavits and submissions filed on its behalf and appearances made in relation to its application, but not in relation to the drawing and filing of the notice of motion itself. 

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.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 402 of 2011
BETWEEN:

COMMONWEALTH OF AUSTRALIA
Applicant
AND:

RALPH SCOTT
First Respondent

SOPHIE SCOTT
Second Respondent

JUDGE:

NORTH J

DATE:

20 JUNE 2011

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. On 2 December 2010, the Court dismissed proceeding VID 1020 of 2008 brought by the respondents against the applicant, the Commonwealth of Australia (the Commonwealth), for the reason that they had no reasonable prospect of successfully prosecuting the proceeding and that it was an abuse of process.  In that proceeding, the Commonwealth, the Commonwealth of Australia, filed a notice of motion on 23 June 2009, seeking orders, including under O 21 r 1 of the Federal Court Rules, relating to vexatious litigants.  The motion of the Commonwealth was adjourned at the end of the hearing of that proceeding to await judgment on the substantive issues.

    Following judgment in the VID 1020 of 2008 proceeding, the Commonwealth apparently became aware of the judgment of the Full Court in Von Reisner v Commonwealth of Australia (2009) 177 FCR 531, which highlighted the correct procedure for seeking orders under O 21 r 1, namely by application in separate proceedings.

  2. As a result, the Commonwealth filed the present application on 15 May 2011.  The application seeks an order pursuant to O 21…

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Details
Case
[2011] FCA 768
Decision Date

CaseChat Overview and Summary

In the case of Commonwealth of Australia v Scott, the Commonwealth brought an application against Mr. and Mrs. Scott, who had a history of vexatious litigation against the government regarding social security benefits. The respondents did not attend the hearing and claimed medical reasons for their absence without prior notice or evidence, which the Court found unconvincing. The legal issues at hand involved whether the respondents' non-attendance at the hearing justified dismissal of the application, and whether the respondents had a history of instituting vexatious proceedings.

The Court concluded that the respondents' absence did not warrant dismissal of the application, as they had notice of the application and had not been prejudiced. The Court also found that the respondents had a history of vexatious litigation, having repeatedly litigated the same matters without reasonable grounds. The Court emphasized that it would be a travesty of justice to accept the respondents' objection to the formal non-compliance with the Federal Court Rules regarding service of the application. The Court also rejected the respondents' argument that the application should not proceed until their most recent High Court application was determined, stating that the High Court had already considered and dismissed the same matters.

The Court made orders prohibiting the respondents from instituting any proceeding in the Federal Court without leave, treating certain affidavits and submissions as filed in the current application, and requiring the respondents to pay the applicant's costs, excluding those related to the drawing and filing of the notice of motion itself.

Orders

Orders of the court

1. The respondents may not institute any proceeding in the Federal Court of Australia without leave of the Court.

2. The affidavits and submissions filed on behalf of the parties in VID 1020 of 2008, in support of, and in opposition to the notice of motion filed on behalf of the second respondent in that proceeding on 23 June 2009 be treated as filed in this application.

3. The respondents pay the costs of the applicant including costs incurred by the applicant in relation to the preparation of affidavits and submissions filed on its behalf and appearances made in relation to its application, but not in relation to the drawing and filing of the notice of motion itself.

Note:

Background

Background to the litigation

The respondents did not advise the Commonwealth or the Court prior to the hearing on 30 May 2011 that they would not be attending the hearing. Nor did they provide any reason for their non-attendance at the hearing afterwards. It was only upon raising the matter on this occasion that the respondents said they were unable to attend the hearing for medical reasons. They said that once advised of the adjourned date, they thought there was no need for them to provide an explanation for their non-attendance. No evidence of any medical reason for their absence was provided.THE FACTUAL BACKGROUND The reasons for judgment in VID 1020 of 2008, delivered on 2 December 2010, explain why the respondents had no reasonable prospect of successfully prosecuting the proceeding, and why it was an abuse of process. The reasons for judgment demonstrate that the proceeding was a vexatious proceeding, within the meaning of O 21 r 1. The basic factual circumstances underlying all the proceedings brought by the respondents are described in those reasons for judgment as follows:7Mr and Mrs Scott were born in Poland and came to Australia as refugees in 1986.8On 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). 9On 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. 10On 24 November 1993, Mr Peak notified Mrs Scott that the decision to reject her DSP application was correct. 11At 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.12The 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 1995.13Ms 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. 14On 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 1995.15On 25 September 1995, Mrs Scott lodged an application with the SSAT for review of Mr Peak’s decision to reject her application for DSP. 16On 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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Finally, the respondents pointed to several orders made in other proceedings which they said demonstrated that their applications have not been uniformly unsuccessful. They provided just two examples of success in all the proceedings which have been referred to. One instance was on 3 October 1997, when the Full Court made orders in their favour in VG 192 of 1997, and the other was on 13 April 1999, when the Full Court made orders in their favour in VG 593 of 1998 and VG 594 of 1998. Both of these proceedings were interlocutory appeals. CONSIDERATION It would be a travesty of justice if the Court were to accept the respondents’ objection to the formal non-compliance with the Federal Court Rules in relation to service of the application. The respondents accepted that they had notice of the application. Not only did they receive notice of the application by mail, but they received notice of the substance of the application from service of the notice of motion filed on 23 June 2009 in VID 1020 of 2008. They also filed lengthy written submissions in relation to that motion. There can be no question of any surprise to the respondents in respect of the present application. Furthermore, the respondents filed an affidavit sworn by the second respondent on 14 June 2011 in this proceeding, seeking to raise further facts upon which to base their defence to the application. In that sense, the respondents waived their right to complain of any issue of non-compliance arising from the failure to personally serve them with the application. The respondents’ argument that it would be wrong for the Court to proceed with this application prior to the determination of their most recent High Court application is not accepted. The High Court has already considered the substance of the matters which the respondents wish to raise, and has dismissed that application. It is unlikely that further consideration of the same matters will have a different outcome. In relation to the respondents’ submission that they have not been entirely unsuccessful in previous proceedings, neither of the proceedings to which they referred demonstrates any real history of success in their litigation. On the contrary, the history set out in the reasons for judgment in VID 1020 of 2008, and summarised in these reasons, demonstrates that the respondents have repeatedly litigated essentially the same matters, and have habitually, persistently and without reasonable grounds, instituted vexatious proceedings in this Court, the Federal Magistrates Court and in the High Court. For these reasons, the Court will make the orders sought by the Commonwealth.