Croker v Dept Family & Community Svcs

[2001] HCATrans 324

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S237 of 2000

B e t w e e n -

CLAYTON ROBERT CROKER

Applicant

and

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 SEPTEMBER 2001 AT 3.24 PM

Copyright in the High Court of Australia

MR C.R. CROKER appeared in person.

MR G.M. ELLIOTT:   May it please the Court, I appear for the respondents.  (instructed by the Australian Government Solicitor)

GLEESON CJ:   Yes, Mr Croker.

MR CROKER:   Your Honours, if I can draw your attention to the application that comes from the Full Court of the Federal Court.  The application was first submitted to the Federal Court on 27 August 1999 claiming relief under the Financial Management and Accountability Act 1997.  Your Honour, this Act has just been assented and is relatively unexplored in its aspects as judicial exercise.  To this date there are nine cases that have been involved with the Act and three of them have been my own cases.  Unfortunately thorough interpretation and judicial exercise has not been a point which I can elaborate on.  An explanation from the respondents too has been fairly brief.

Your Honour, if I can just give you some history.  There was an application to the Department of Family and Community Services agency in Darlinghurst, in Crown Street, in 1997 for an advance payment of $500 on a disability support pension.  At that time there were inquiries as to a further advance loan in a six‑month period of time on the completion of the payment of the first.  At that instant, with engagement to the officer of the agency, there was not an intensive but there was an inquisitive time to the availability of that extension after six months time and also the change in legislation that had been introduced to extend periods of time when moneys could be borrowed from the government on advanced settings.

At that stage the officer was quite convincing that in a six‑month period of time on completion of payment there would be a second payment available, another advance of $500.  On application, the application was rejected and a request for a review of an area review officer was forwarded to the office.  Again that was rejected, stating the legislation changed and that the officer was in his rights to actually ignore or displace the application. 

Being a financial position of unstability, there were questions as to whether this should be encouraged further as the obvious assurance that there would have been a possibility – or there was assurance that the possibility of the further payment was there, another request of review is sent to the SSAT, rejections on the ground that the legislation had changed and it was improper to set aside the decision of the area review officer.

At a later date another application was made to the AAT asking a question of law whether the Trade Practices Act would actually involve the Department and a consumer in their interpretation.  It was rejected again on the grounds that the AAT had no grounds to hear matters on contractual basis and they affirmed the decision of the SSAT.  The matter came to the Federal Court in front of ‑ ‑ ‑

GLEESON CJ:   Justice Sackville first, I think.

MR CROKER:   It was not Justice Sackville first.  It came on an appeal from the AAT to a – Justice Sackville’s decision was after the approach by the respondent with legislation in their hands stating that this legislation should be claimed.  That was actually the Financial Management and Accountability Act section 9 and 52 ‑ ‑ ‑

GLEESON CJ:   But what we are concerned with is the correctness of a decision of the Full Court of the Federal Court refusing leave to appeal from a judgment of Justice Sackville.

MR CROKER:   We are, your Honour.  Justice Sackville ruled that in light of section 1061A in the Social Security Legislation Amendment Act (Youth Allowance Consequntial and Related Measures) Act 1998 is as follows:

Subject to subsection (4), a person is qualified for an advance payment of a social security entitlement only if:

(a)  the social security entitlement is payable to the person; and

(b)  the person has been receiving an income support payment for a continuous period of 3 months immediately before the day on which the person’s application for the advance payment is made; and

(d)  the Secretary is satisfied that the person will not suffer financial hardship from reductions in instalments of the social security entitlement as a result of receiving the advance payment.

It also goes on to state in (4)(c):

the person has received the amount of an advance payment in a single lump sum, or has received the first instalment of such an amount, on or after 1 January 1997, and the period of 12 months from the day the lump sum or instalment was paid has not elapsed ‑ ‑ ‑

CALLINAN J:   Mr Croker, you were asked in the Full Court about the nature of the case that you wanted to bring and I think you have been in courts often enough to know that you have to be able to formulate a claim under some accepted head of claim in the law.  Now, you were asked about that in the Full Court and at page 24 paragraph 10 it appears that you had “in mind a claim for exemplary damages”.  Justice Beaumont said:

It is clear beyond any argument that there is no basis for any claim for fiduciary duty in the present case, and no other cause of action known to common law or any claim in equity has emerged as even conceivably capable of being propounded on any reasonable basis.

Now, you have to be able to demonstrate that you have a claim under an accepted, acknowledged head of claim.  Have you got any such claim and if so, what is it?

MR CROKER:   Your Honour, I do state that there is a cause of action under sections 6, 9 and 52 of the Financial Management and Accountability Act, which gives rise to the chief executive’s advising staff on practice and procedures on legislation changes and also the…..on financial management of public spending money.

GLEESON CJ:   All this arises out of their failure to make an advance payment of $500 against a disability entitlement, is that right?

MR CROKER:   No, there was an advance payment, but the legislation was changed.  In 1996, the Budget Speech, there was a change to the ability or the availability of the advance.  It was a period every six months which gave a lot of buying power to someone.

GLEESON CJ:   What I was going to ask you was, you did not get an advance?  That is what you are complaining about, is that right?

MR CROKER:   That is correct, when guaranteed one.

GLEESON CJ:   Now, does it follow from the fact that you did not get an advance that you got it in due course?

MR CROKER:   No, at that stage it was not receivable for the 12‑month period with ‑ ‑ ‑

GLEESON CJ:   And did you receive it?

MR CROKER:   I did then.

GLEESON CJ:   So you got the $500 eventually.  You just did not get it early enough.

MR CROKER:   Well, actually the period was 12 months, not in six months.

GLEESON CJ:   Right.  So you got the $500 too late?

MR CROKER:   That is correct.

GLEESON CJ:   Too late for what?

MR CROKER:   Well, really it was a Christmas festive season money that I was looking forward to and it was a disappointment not to have an income at that stage.

GLEESON CJ:   But I am looking at page 14 of the application book at lines 9 and 10.  What is your response to what Justice Sackville says there?

MR CROKER:   Your Honour, what I am stating is that the proximity between the agency and the consumer is constructed in such a way that any dealings can result in financial loss, or loss of enjoyment of life ‑ ‑ ‑

GLEESON CJ:   But you did not lose the $500.  I mean, you got the $500.

MR CROKER:   Yes, but at a later date, six months down the track.

GLEESON CJ:   Quite.  Now, the question that Justice Sackville raises is what financial harm it caused you to get it six months later than you wanted it.  And you have answered that by reference to the “festive season”.  I would just like to understand that a little better.

MR CROKER:   Your Honour, I am a full‑time student; it is my time off; it is the only decent break I have throughout the year.  Really it was just a matter of debts owed, the enjoyment of life, celebrating the holidays with friends, loss of use of amenities, things that I owed money on, I suppose injured feelings and just disappointment in general that I had been assured something and then when attempted to be retrieved it is no longer available to me in quite an abrupt manner.  There was one letter that came out that said I was still owing a last payment of $38.50, which made out that there was an advance available again. 

Your Honour, I find that when it was paid and I did re-apply that a second letter came out saying the legislation had changed, but I unfortunately had not been notified for 18 months after the change, approximately, and that the advance was no longer available.  It looks like the basis of the claim is based on the findings that a report by the Commonwealth Ombudsman – I obtained that – if your Honours are familiar with that, compensate or not to compensate.  It is a 100‑page

document actually built up around UK legislation, also Australian legislation, that gives the Act the ability to compensate for defective and maladministration when there is financial detriment suffered.  Your Honour, in my eyes, in my mind, it seemed that financial detriment was suffered for ‑ ‑ ‑

CALLINAN J:   I suspect that the opportunity cost of you not getting $500 six months earlier might be about $5 or $10, and you want to take up the time of this Court and cost the taxpayers of Australia thousands and thousands of dollars in prosecuting a claim for that amount of money.  Are you serious about this?

MR CROKER:   I am serious, your Honour.

CALLINAN J:   Have you thought about the matters I have just put to you?

MR CROKER:   I have.

GLEESON CJ:   Yes.

MR CROKER:   Your Honour, I can only emphasise that the report does include matters of this jurisdiction and these structures and areas of law and it has been applied.  Your Honour, I can say no more, but only restate what I have said.

GLEESON CJ:   Thank you, Mr Croker.  We do not need to hear you, Mr Elliott.

The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this matter and the application is refused with costs.

AT 3.38 PM THE MATTER WAS CONCLUDED