Fazio v Centrelink (No.2)

Case [2008] FMCA 1389


FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAZIO v CENTRELINK (No.2) [2008] FMCA 1389

ADMINISTRATIVE LAW – Damages for alleged breaches of duty arising from administrative acts of respondent – whether jurisdiction to hear the matter – whether private right of action – whether misfeasance in public office.

PRACTICE AND PROCEDURE – Application for summary dismissal – whether no reasonable prospect of success – whether abuse of process.

Federal Magistrates Act 1999 (Cth), ss.17A and 79(2)
Federal Magistrates Court Rules 2001 (Cth), rr.12.03, 12.06, 13.10

Judiciary Act 1903 (Cth), s.39B(1A)(c)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth), s.13

Balding v Ten Talents Pty Ltd (2007) 162 IR 17; [2007] FMCA 145
Boston Commercial Services Proprietary Limited v GE Capital Finance
Australasia Pty Ltd (2006) 70 IPR 146; [2006] FCA 1352
Cassell & Co Ltd v Broome [1972] AC 1027
Coffey v Secretary, Department of Social Security (1999) 86 FCR 434; [1999] FCA 375
Duncan v Lipscombe Child Care Services (2006) 150 IR 471; [2006] FCA 458
Fazio v Centrelink [2008] FMCA 594
Jones v Department of Employment [1989] QB 1
Pickering v Centrelink [2008] FCA 561
Pickering v Chief Executive Officer of Centrelink [2006] FCA 477
R v Casey; R v Smythe [1977] Qd R 132
Scott v Pedler (2004) 80 ALD 284; [2004] FCAFC 67
Scott v Secretary, Department of Social Security (2000) 65 ALD 79; [2000] FCA 1241
Trident General Insurance Co Limited v McNiece Bros Proprietary Limited (1987) 165 CLR 107
Wang v Minister, Department of Employment and Workplace Relations [2007] FCAFC 17
Wang v Secretary, Department of Employment and Workplace Relations [2006] FCA 898
Applicant: ARTURO FAZIO
Respondent: CENTRELINK
File Number: PEG 33 of 2008
Judgment of: Lucev FM
Hearing date: 30 September 2008
Date of Last Submission: 30 September 2008
Delivered at: Perth
Delivered on: 16 December 2008

REPRESENTATION

Applicant: In person
Counsel for the Respondent: Ms S Oliver
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. The Respondent’s interim application filed on 22 April 2008 be upheld.

  2. The Applicant’s application, as amended and filed on 8 April 2008, be dismissed.

  3. The Applicant pay the Respondent’s costs in the sum of $6104.00 by 4.00pm on 31 December 2009.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 33 of 2008

ARTURO FAZIO

Applicant

And

CENTRELINK

Respondent

REASONS FOR JUDGMENT

Introduction

  1. Sad circumstances surround these proceedings. They were initiated in personal circumstances poignantly described by the applicant, Arturo Fazio[1] in an affidavit sworn 16 April 2007:[2]

    “My lawful wife since 24 March 2006, Samantha Underdown, is terminally ill with metastatic breast cancer whereby she is wheelchair bound and reliant upon extensive life support due to the extent of her cancer in her lungs, liver, throughout her spine and vertebrae and hips.”[3]

    [1] “Mr Fazio”.

    [2] “Mr Fazio’s April 2007 Affidavit”.

    [3] Mr Fazio’s April 2007 Affidavit, para.1.

  2. Mr Fazio’s wife, Samantha Underdown[4] died on 1 July 2007.[5]

    [4] “Ms Underdown”.

    [5] Affidavit of Mr Fazio, sworn 8 April 2008, para.2 (“Mr Fazio’s…

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Details
AGLC
Fazio v Centrelink (No.2) [2008] FMCA 1389
Case
[2008] FMCA 1389
Decision Date

CaseChat Overview and Summary

Fazio v Centrelink (No.2) involved the Applicant, Mr Fazio, suing Centrelink, the Respondent, for damages arising from alleged breaches of duty linked to administrative actions. The case was heard in the Federal Court of Australia. Mr Fazio claimed that the Respondent’s administrative decisions and actions had caused him financial loss and emotional distress, seeking damages for these alleged breaches.

The court had to determine whether it had the jurisdiction to hear the matter and if Mr Fazio had a private right of action against Centrelink. Additionally, the court needed to assess whether the actions of Centrelink amounted to misfeasance in public office. The court was also tasked with evaluating whether there was a reasonable prospect of success in Mr Fazio's application and whether the application represented an abuse of process.

The court found that it did not have jurisdiction to hear the case as there was no private right of action available to Mr Fazio against Centrelink for the administrative decisions in question. The court concluded that the actions of Centrelink did not amount to misfeasance in public office. It also held that there was no reasonable prospect of success in Mr Fazio's application and that the application was an abuse of process. Consequently, the court dismissed Mr Fazio's application and upheld the Respondent's application for summary dismissal. The court further ordered Mr Fazio to pay the Respondent's costs.

Orders

Orders of the court

1.

The Respondent’s interim application filed on 22 April 2008 be upheld.

2.

The Applicant’s application, as amended and filed on 8 April 2008, be dismissed.

3.

The Applicant pay the Respondent’s costs in the sum of $6104.00 by 4.00pm on 31 December 2009.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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