Fazio v Centrelink (No.2)
[2008] FMCA 1389
•16 December 2008
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) Judiciary Act 1903 (Cth), s.39B(1A)(c) |
| 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
The Respondent’s interim application filed on 22 April 2008 be upheld.
The Applicant’s application, as amended and filed on 8 April 2008, be dismissed.
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
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.
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 First April 2008 Affidavit”).
The application, which, as initially filed sought the payment of alleged unpaid and underpaid social security entitlements and out of pocket disbursements, interest on monies owed and damages, has, following amendment, become an application for payment of allegedly outstanding social security (pension and carer) entitlements, disbursements, and damages for loss of potential wages, stress, physical and mental injury, hardship, loss of earnings and dignity, plus punitive damages and unquantified interest on the basis that the respondent Centrelink, owed Mr Fazio a duty of care. In submissions filed by Mr Fazio he has also alleged misfeasance in public office by Centrelink officials.
Centrelink has filed an interim application seeking the summary dismissal of the amended application.
History of litigation
Original application to Federal Court
The application was originally made to the Federal Court on 16 April 2007. The application was made on behalf of Mr Fazio and Ms Underdown. The application was headed “Urgent Application”. It was said to be an application under the Social Security (Administration) Act 1999 (Cth)[6] and at common law.
[6] “SS Administration Act”.
In the application Mr Fazio and Ms Underdown claimed the following:
1.Payments of $441.40 due to Arturo Fazio on 11 April 2007 and $441.40 due to Samantha Underdown also on 11 April 2007 but not paid.
2.The sum of $70.86 wrongly deducted from Samantha Underdown’s entitlements dated 28 February 2007 and 14 March 2007.
3.Outstanding carer payments dating back to a date of defined ‘acute event’ to be determined by this Honourable Court.
4.Out of pocket disbursements necessarily incurred by the applicants in the attendance and rectification of the respondents continual discrimination, breach of a duty of care and or dangerous life threatening negligence.
5. Interest on said monies owed.
6. Damages.
7. Any other award this Honourable Court deems fit.[7]
[7] Federal Court Application, WAD 73 of 2007, filed 16 April 2007. Transcribed from the original without amendment.
The application sought relief by way of payment of the sums of money referred to in points 1 and 2 above, plus an amount of $750.00 for out of pocket disbursements, and an order compelling Centrelink to do their job by paying Mr Fazio and Ms Underdown their lawful entitlements fortnightly from 25 April 2007.[8]
[8] Federal Court Application, WAD 73 of 2007, filed 16 April 2007.
The application was supported by Mr Fazio’s April 2007 Affidavit.
The application came before the Federal Court the day following its filing, presumably because of the alleged urgency. Following a hearing an order was made that the application be adjourned. It is not apparent from the Federal Court papers why the application was then simply adjourned.
The matter eventually returned before the Federal Court on 14 February 2008. Following a short hearing the Federal Court made the following Orders:
1.Ms Samantha Underdown be removed as a party to the application.
2.The applicant file and serve an amended application and any further affidavits upon which he intends to rely at the hearing of this matter by 7 April 2008.
3.The respondent file and serve any affidavits upon which it intends to rely at the hearing of this matter by 21 April 2008.
4.The application be remitted to the Federal Magistrates Court.
5.The application be adjourned to a directions hearing in the Federal Magistrates Court to a date to be fixed after 21 April 2008.
6.Costs be reserved.
There are no published Reasons for Judgment in relation to the Federal Court orders of 14 February 2008. That is unexceptional as they are procedural orders (save arguably for order 1).
The current application in the Federal Magistrates Court
On 8 April 2008 Mr Fazio filed an amended application in this Court pursuant to the Federal Court Orders of 14 February 2008. The amended application was supported by Mr Fazio’s First April 2008 Affidavit. In the amended application Mr Fazio sought:
a)payment of Centrelink pension and carer entitlements;
b)payment of $1,500 for disbursements associated with rectifying alleged errors made by Centrelink;
c)$2,000 in damages for loss of potential wages;
d)unquantified damages for immense stress, physical and mental injury, hardship, loss of earnings and dignity to attend to errors made by Centrelink;
e)unquantified punitive damages; and
f)unquantified interest,
on the basis that Centrelink owed Mr Fazio a duty of care.
Centrelink’s application for summary dismissal
On 22 April 2008 Centrelink filed an application in a case seeking that the applicant’s amended application filed on 8 April 2008 be dismissed under s.17A of the Federal Magistrates Act 1999 (Cth)[9] and r.13.10 of the Federal Magistrates Court Rules 2001 (Cth).[10] Centrelink also seeks the costs of the application pursuant to s.79(2) of the FM Act.
[9] “FM Act”.
[10] “FMC Rules”.
The grounds of Centrelink’s summary dismissal application are that:
the applicant has no reasonable prospects of successfully prosecuting the proceedings; and
the proceeding is an abuse of process of the Court.
Centrelink’s summary dismissal application came before the Court on 28 April 2008 at a directions hearing which had been scheduled in relation to the amended application. At the directions hearing an application by Mr Fazio to adjourn the summary dismissal application was listed for hearing on 2 May 2008. Mr Fazio did not attend the adjournment application hearing, but the adjournment application was heard and determined. An adjournment was granted, but only because the Court considered that it was appropriate that Mr Fazio be referred for pro-bono assistance under r.12.03 of the FMC Rules, that assistance to include advice, drafting or settling of documents and representation generally in the conduct of the summary dismissal application.[11]
[11] Fazio v Centrelink [2008] FMCA 594 at paras.28-36 per Lucev FM.
The summary dismissal application was adjourned to 14 July 2008. By consent orders made on 14 July 2008, that hearing date was vacated and the matter referred to mediation before a Registrar of the Court. Mediation was unsuccessful, and the summary dismissal application was relisted for hearing on 30 September 2008. At some stage subsequent to mediation and before hearing a Registrar granted leave to the solicitor providing pro-bono assistance to Mr Fazio to cease providing that assistance.[12] Mr Fazio was self-represented at the hearing on 30 September 2008.
[12] FMC Rules, r.12.06.
Facts
Mr Fazio relies upon the following affidavits:
a)Mr Fazio’s April 2007 Affidavit;
b)Mr Fazio’s First April 2008 Affidavit;
c)Mr Fazio’s affidavit sworn 30 April 2008;[13]
d)Mr Fazio’s affidavit sworn 2 May 2008;[14] and
e)Mr Fazio’s affidavit sworn 25 September 2008.[15]
[13] “Mr Fazio’s Second April 2008 Affidavit”.
[14] “Mr Fazio’s May 2008 Affidavit”.
[15] “Mr Fazio’s September 2008 Affidavit”.
The facts as alleged by Mr Fazio appear hereunder.
Mr Fazio’s partner, Ms Underdown, was, in April 2007, terminally ill requiring care 24 hours a day.[16]
[16] Mr Fazio’s April 2007 Affidavit, paras.1 and 11.
Ms Underdown was entitled to a disability support pension from Centrelink, while Mr Fazio, as sole carer, was entitled to a carer’s payment, and both the disability support pension and carer’s payment were paid “haphazardly”.[17] Mr Fazio alleges that there were a variety of underpayments and non-payments made at various times in relation to which Centrelink admitted fault, but failed to properly rectify, and that Centrelink also failed to prevent further underpayments or non-payments.[18]
[17] Mr Fazio’s April 2007 Affidavit, paras.2 and 3.
[18] Mr Fazio’s April 2007 Affidavit, paras.4 and 5.
Mr Fazio alleges that he and Ms Underdown were essentially impecunious, there being a risk of foreclosure on their home and cessation of essential utility services, plus a lack of transport and inability to pay for essential medical supplies and equipment, including oxygen machines.[19] Mr Fazio brought these matters to the attention of Centrelink in a letter marked “CRITICALLY URGENT” addressed to Mr Read, a Centrelink manager, on 29 March 2007.[20]
[19] Mr Fazio’s April 2007 Affidavit, paras.6 and 7 and Annexure ASF7.
[20] Mr Fazio’s April 2007 Affidavit, Annexure ASF7.
Mr Fazio also alleges that Centrelink failed to provide any, or any proper and accurate, advice relating to entitlements as to how much Mr Fazio could earn from casual work, and that this cost him the opportunity to earn income which would assist in overcoming his and Ms Underdown’s impecuniosity.[21] Mr Fazio alleged that because of the way Centrelink were treating he and Ms Underdown “in our desperate time of need” and because “they make us feel with life being too hard to go on” he and Ms Underdown had “had firm, serious and very emotionally taxing discussions of an imminent suicide pact” and that Ms Underdown’s will to fight had been taken away by Centrelink.[22] Mr Fazio alleged that on his “understanding of various authorities, this is inhuman and unlawful at law.”[23]
[21] Mr Fazio’s April 2007 Affidavit, para.12.
[22] Mr Fazio’s April 2007 Affidavit, para.14.
[23] Mr Fazio’s April 2007 Affidavit, para.15.
Mr Fazio made numerous written requests for information to Centrelink concerning the effect of his earnings on either Ms Underdown’s pension entitlement or his own carer allowance, the requests becoming increasingly detailed in relation to the information sought and more desperate in tone as weeks went by, either without response from Centrelink or without any response that satisfied Mr Fazio’s demands.[24] There were clearly communication difficulties both ways, with Centrelink seemingly not responding to increasingly strident and detailed demands, but equally when Mr Fazio was invited to discuss issues by phoning Centrelink he seemingly refused to do so, or to do so constructively, telling Centrelink that he refused to deal with or talk to “incompetents”, and that he did not have time free from taking care of Ms Underdown and that there would be “no discussions!”[25]
[24] See letters written by Mr Fazio to Centrelink annexed to Mr Fazio’s April 2007 Affidavit, being letters of 14 February 2007 (ASF13), 17 February 2007 (ASF14), 15 March 2007 (ASF15), 24 March 2007 (ASF16), 1 April 2007 (ASF17), 3 April 2007 (ASF18) and 9 April 2007 (ASF19).
[25] Mr Fazio’s April 2007 Affidavit, Annexure ASF12.
As early as 9 April 2007 Mr Fazio requested that an appeal by Ms Underdown relating to a decision to deduct money from her entitlements on the basis of a change in marital status be referred to a Authorised Review Officer.[26]
[26] Mr Fazio’s April 2007 Affidavit, Annexure ASF19.
Mr Fazio asserts that in the course of dealings with Centrelink between January and October 2007 he and Ms Underdown “suffered severe financial hardship and immense emotional turmoil over Centrelink’s actions and inaction.”[27] Mr Fazio asserts that Ms Underdown “gave up the will to continue to fight against her cancer”, and that this was “because of the huge turmoil and problems arising out of beating Centrelink for our entitlements” giving rise to the perception that “she was a huge burden upon me and that she no longer wanted to live so that I may get on with my life” and that she became “suicidal requiring intensive, constant supervision”.[28]
[27] Mr Fazio’s First April 2008 Affidavit, para.3.
[28] Mr Fazio’s First April 2008 Affidavit, para.4.
Ms Underdown passed away on 1 July 2007.[29] Mr Fazio says that he became “overrun with guilt as not being able to adequately protect and provide for” Ms Underdown notwithstanding his constantly imploring Centrelink “to do their job and pay us our lawful entitlements.”[30]
[29] Mr Fazio’s First April 2008 Affidavit, para.2.
[30] Mr Fazio’s First April 2008 Affidavit, para.5.
A payment due to Mr Fazio and Ms Underdown on 11 April 2007 was not paid until 12 April 2007 (at the earliest) and when paid was almost instantaneously deducted by Mr Fazio’s bank in reduction of his mortgage, leading to a genuine belief on Mr Fazio’s part that the amount was not paid, whereas had the monies been paid on time Mr Fazio would have been able to access the monies before the automatic bank deductions took place.[31]
[31] Mr Fazio’s First April 2008 Affidavit, Annexures ASF22 and ASF27.
On 24 April 2007 an Authorised Review Officer advised Mr Fazio that he had reviewed a decision made on 1 March 2007 to grant carer payment and carer allowance from 13 February 2007 and not from an earlier date. The Authorised Review Officer decided that carer payment and carer allowance were to be granted from 25 January 2007 under s.13 of the SS Administration Act.[32]
[32] Mr Fazio’s First April 2008 Affidavit, Annexure ASF28.
On the same day (24 April 2007) as the Authorised Review Officer handed down his decision concerning back payment of the carer payment and carer allowance, Ms Wallwork, a business manager with the legal services branch of Centrelink wrote to Mr Fazio and Ms Underdown. Ms Wallwork advised that the Authorised Review Officer’s review had been completed, and she summarised the effect of that decision, namely back payment to 25 January 2007, and advised that the back payment had been paid to Mr Fazio’s bank account that day. Ms Wallwork’s letter also set out how earnings would affect payments, particularly having regard to the total number of hours worked by the carer and gross earnings. Ms Wallwork advised Mr Fazio to advise earnings on the relevant reporting day each fortnight. Ms Wallwork went on to advise that early reporting of earnings, as Mr Fazio had done on 19 April 2007, instead of 20 April 2007, resulted in payments being delayed: in that case until 26 April 2007 rather than the usual date of 24 April 2007. Ms Wallwork’s letter also dealt with:
a)how to obtain an advanced payment; and
b)a fund set up called the Compensation for Detriment caused by Defective Administration (CDDA) Fund,
and concluded by indicating that all of Mr Fazio’s inquiries had now been addressed except for a further review being undertaken by an Authorised Review Officer about an acute event date and possible back dated payment if that date was determined to be earlier than that previously decided by Centrelink.[33]
[33] Mr Fazio’s First April 2008 Affidavit, Annexure ASF29.
On 25 April 2007 Mr Fazio responded raising more queries in relation to the payment of the carer allowance. He also portrayed it as nonsensical that reporting earnings a day earlier resulted in payment being delayed, and pointed out that on the particular reporting day concerned (20 April 2007) he was transporting Ms Underdown to and from hospital and remaining with her during that day, thereby precluding him from reporting on the reporting day, hence the earlier reporting. Mr Fazio went on to raise issues as to why the CDDA scheme had not been suggested earlier as a possible resolution, and then asked about Centrelink’s position with respect to lost income, damages and out of pocket disbursements and physical damage said to have been suffered.[34]
[34] Mr Fazio’s First April 2008 Affidavit, Annexure ASF30.
On 9 May 2007 the Authorised Review Officer advised Mr Fazio that he had reviewed the Centrelink decision made on 1 March 2007 not to backdate his carer allowance claim for Ms Underdown due to an acute event. The Authorised Review Officer determined that Mr Fazio’s carer allowance ought to start from 2 November 2006 rather than 24 January 2007 and that arrears of carer allowance would be paid for the period from 2 November 2006 to 24 January 2007.[35]
[35] Mr Fazio’s First April 2008 Affidavit, Annexure ASF33.
In both of the decisions made by the Authorised Review Officer Mr Fazio was advised that he was entitled to ask the Social Security Appeals Tribunal[36] for an independent review of the decision made by the Authorised Review Officer if Mr Fazio did not agree with that decision. Further Mr Fazio was advised that if he did not agree with any subsequent decision of the SSAT he could ask for an independent review by the Administrative Appeals Tribunal[37] of any decision by the SSAT.[38]
[36] “SSAT”.
[37] “AAT”.
[38] Mr Fazio’s First April 2008 Affidavit, Annexures ASF28 and ASF33.
On 14 May 2007 Mr Fazio had a telephone conversation with Mr Read, a manager at Centrelink. The telephone conversation concerned payment for the additional two week period from 25 January 2007 to 12 February 2007 that the Authorised Review Officer had decided Mr Fazio was entitled to be paid a carer payment. Centrelink issued a cheque for $579.94 to Mr Fazio for a carer payment for that period, but also sent the same sum electronically to his nominated bank account. Centrelink then wrote to Mr Fazio advising that the overpaid amount was an amount to which he had “no entitlement, even though it is Officer error.”[39] Attached to the letter was an account payable for the overpaid sum, to be paid by 12 June 2007. On 15 May 2007 Mr Fazio arranged for his bank to send a bank cheque payable to Centrelink for the overpaid sum. Accompanying the bank cheque was a letter from Mr Fazio referring to the inconvenience and cost of raising the bank cheque: it was said to involve travel to the bank, phone calls and faxing of various correspondence, and noted that the necessity to incur those costs was because of Centrelink’s error.[40] Notwithstanding repayment by Mr Fazio he was subsequently sent an account payable for the overpaid amount.[41]
[39] Mr Fazio’s First April 2008 Affidavit, Annexure ASF39.
[40] Mr Fazio’s First April 2008 Affidavit, Annexure ASF42.
[41] Mr Fazio’s First April 2008 Affidavit, Annexure ASF43.
On 5 July 2007 Mr Fazio again wrote to Centrelink, this time advising that “Centrelink have yet again failed to put our entitlements in our account and again failed to advise and or forewarn of not doing so, imagine my surprise and my disgust in the circumstances.”[42] Centrelink responded advising that it had not received the necessary earnings information and therefore “the above payments were not stimulated by 2 July 2007”.[43] The Court assumes that in plain non-bureaucratic English “not stimulated” means “not paid”. Mr Fazio’s reply of 6 July 2007 was as follows:
[42] Mr Fazio’s First April 2008 Affidavit, Annexure ASF45. Presumably, the circumstances referred to included the passing of Ms Underdown.
[43] Mr Fazio’s First April 2008 Affidavit, Annexure ASF46.
“Having received your faxed reply yesterday, it disgusts and destroys me no end that not only people there have vindictively and deliberately persecuted Samantha and I over the past 6 months, but you continue to do so despite our court action against you people to enforce you people to simply do your job!
Enclosed is copy of the advising fax of Sunday 1 July 2007, advising M READ of no earnings and the facsimile transmission report of 2 July at 2.40.38 hours showing you incontrovertibly received such. This is exactly the same process I have done for the passed 5 or so months.
What lie or bullshit excuse are you going to use now?
It wasn’t enough that Samantha and I suffered immensely because of Centrelink error after error but now Samantha has just passed away and you kick us now?
Samantha was to be cremated on Monday 9 July but because I can’t meet the deposit for which I relied on the Centrelink payments to do so, they will not proceed despite everyone travelling great distances and irrevocable arrangements having been made.
I demand an explanatory letter admitting Centrelink error and not mine, in order to present to Bowra and Odea by return now, in order that I may somehow convince them to continue on Monday in order not to destroy me any further.”[44]
[44] Mr Fazio’s First April 2008 Affidavit, Annexure ASF47 (transcribed without amendment from Annexure ASF47).
As indicated in the above letter there was attached to it a copy of a facsimile sent by Mr Fazio, dated 1 July 2007 (the day Ms Underdown died), but sent at 2.40am on 2 July 2007 advising Centrelink that neither Mr Fazio nor Ms Underdown had worked or earned any income in the previous fortnight.[45]
[45] Mr Fazio’s First April 2008 Affidavit, Annexure ASF47.
Centrelink responded apologising for any problems or delays that Centrelink had caused Ms Underdown or Mr Fazio. Centrelink advised that it had not received the facsimile sent on 2 July 2007 and had only received copies sent on 6 July 2007. Centrelink’s reply further advised that the payment had since been processed and would reach the relevant accounts on 10 July 2007. Centrelink indicated that it was “more than happy to speak with Bowra and Odea (sic)” if Mr Fazio was to send through or call with the relevant contact details.[46]
[46] Mr Fazio’s First April 2008 Affidavit, Annexure ASF49.
Mr Fazio responded saying Centrelink’s response was “simply not good enough!”[47] Mr Fazio went on to say that:
[47] Mr Fazio’s First April 2008 Affidavit, Annexure ASF48.
“The fax of 2 July was incontrovertibly received by your office as confirmed by the telecommunication company yesterday, so who is the person who has destroyed the evidence in order to cover their pathetic back? What you have purported is a blatant lie for which the court, media and public will acquiesce.
…
You can stick your offer to contact Bowra and Odea up your arse, on repeated occasion (sic) you negatively impacted our lives whilst Samantha was alive and now you want to continue to hound her to her grave, go to hell!”[48]
[48] Mr Fazio’s First April 2008 Affidavit, Annexure ASF48 (quoted passages transcribed without amendment from Annexure ASF 48).
On 17 July 2007 Centrelink advised Mr Fazio that he would be entitled to a carer’s payment “for up to 13 weeks” from 6 July 2007.[49] On 10 September 2007 Mr Fazio was advised that on 12 September 2007 he would be receiving his final carer’s payment.[50] On 11 September 2007 Mr Fazio was further advised by Centrelink that:
“After careful consideration your Carer Payment has been cancelled because the Bereavement Payment Period has ceased from 07/10/2007.”[51]
[49] Mr Fazio’s First April 2008 Affidavit, Annexure ASF54.
[50] Mr Fazio’s First April 2008 Affidavit, Annexure ASF55.
[51] Mr Fazio’s First April 2008 Affidavit, Annexure ASF56.
Mr Fazio complained about the fact that he was being advised that his carer’s payments were to be cancelled forthwith, yet he had previously been advised that he was entitled to the carer’s payment until 6 October 2007, and had relied upon that advice. He asked why he had been deprived of two further payments and in a letter to Centrelink on 20 September 2007 finished by saying:
“Having been forced to successfully appeal at least 2 vexatious and manifestly erroneous decisions of yours against us in the past, it is de ja vu all over again.”[52]
[52] Mr Fazio’s First April 2008 Affidavit, Annexure ASF57.
In a letter to Centrelink’s solicitors on 12 February 2008 Mr Fazio indicated an intention to pursue his application. Mr Fazio says that in the circumstances in which he and Ms Underdown found themselves Centrelink were compelled to pay them their lawful entitlements. And to do that “expeditiously without bias, prejudice, negligence or administrative error” and “to get it right and not cause pain, suffering or damage.” Mr Fazio goes on to acknowledge that errors which were made and which involved refusing to pay entitlements were reversed upon appeal, “but not without great hardship, grief and both physical and mental pain and anguish to [Ms Underdown] in her last months plus causing damages.” Mr Fazio goes on to say that Centrelink should “be held to account so the next time they deal with a dying client they show compassion and quite simply, do the job they are paid to”, and that they should not be allowed to “treat anyone else so inhumanely ever again”.[53]
[53] Mr Fazio’s First April 2008 Affidavit, Annexure ASF59.
Following a request from Mr Fazio[54] for advice about Centrelink’s position concerning his application, Centrelink’s solicitors wrote to Mr Fazio on 20 February 2008 indicating that Centrelink’s position was “that there has been no negligent or erroneous handling of the claims” and that “even if there was some breach of the provisions of the Social Security Act 1991, you would not be entitled to damages: see Scott v Pedler [2004] FCAFC 67.”[55] The letter went on to advise that Centrelink’s solicitors had previously advised of Centrelink’s preparedness to agree to no orders as to costs if the Federal Court application was promptly discontinued or dismissed, but that as Mr Fazio had advised that he wished to pursue the application notice was given that Centrelink would seek an order that he pay Centrelink’s costs if the application was dismissed.[56]
[54] Mr Fazio’s First April 2008 Affidavit, Annexure ASF61.
[55] Mr Fazio’s First April 2008 Affidavit, Annexure ASF62.
[56] Mr Fazio’s First April 2008 Affidavit, Annexure ASF62.
Mr Fazio’s Second April 2008 Affidavit was originally sworn in support of his application to adjourn the summary dismissal application. In it he acknowledges that he is “now the sole applicant in this matter” as a consequence of Ms Underdown having passed away on 1 July 2007.[57] Mr Fazio’s 2 April 2008 Affidavit evinces a clear intention to “vigorously defend” the summary dismissal application, and to “voraciously pursue” the application “no matter how far or long it must go.”[58] Mr Fazio expresses the view in the affidavit that this is a case of exceptional circumstances for which there must be a remedy or relief at law otherwise “it would simply be inhumane”.[59] Mr Fazio says that none of the authorities provided by the respondent appear to him to even remotely address the set of facts in this particular matter,[60] and that the circumstances are such that “this is a case which the people of Australia and law demands, be played out to the end, whichever way that must be.”[61]
[57] Mr Fazio’s Second April 2008 Affidavit, para.1.
[58] Mr Fazio’s Second April 2008 Affidavit, para.17.
[59] Mr Fazio’s Second April 2008 Affidavit, para.23.
[60] Mr Fazio’s Second April 2008 Affidavit, para.24.
[61] Mr Fazio’s Second April 2008 Affidavit, para.26.
Mr Fazio’s May 2008 Affidavit was also sworn in opposition to the summary dismissal application and in support of the adjournment of that application. It was on the basis of Mr Fazio’s May 2008 Affidavit that the Court adjourned the summary dismissal application hearing originally listed on 2 May 2008, as a consequence of the request contained in the affidavit for referral to a lawyer on the Court’s pro-bono panel.[62]
[62] See para.15 above.
In Mr Fazio’s May 2008 Affidavit he:
a)asserts that, in all of the circumstances, Centrelink owed both he and Ms Underdown a duty of care to take positive steps to avoid a foreseeable risk of harm, especially in circumstances where they were extremely vulnerable to injury;[63] and
b)raises the possibility of misfeasance by unnamed Centrelink officers dependent “upon closer examination.”[64]
[63] Mr Fazio’s May 2008 Affidavit, paras.6-9.
[64] Mr Fazio’s May 2008 Affidavit, para.10, see also para.l3.
Mr Fazio’s September 2008 Affidavit says that he believes that the correct parties are he and Ms Underdown and he seeks leave of the Court to join Ms Underdown as a co-applicant. At the hearing on 30 September 2008 the Court indicated that it did not consider it appropriate to consider joining Ms Underdown[65] as a co-applicant until such time as the summary dismissal application had otherwise been determined.[66]
[65] And more correctly her estate.
[66] See Transcript, 30 September 2008 at page 11.
Much of Mr Fazio’s September 2008 Affidavit is argumentative in relation to the application of general principles associated with negligence, and in particular the existence of a duty of care said to be owed to he and Ms Underdown by Centrelink. Essentially he asserts again that Centrelink owed a duty of care and that the duty of care was breached by the acts of Centrelink employees conducting themselves “below the standard of a reasonably prudent public servant or manager…administering welfare legislation, that is consistent with sound administrative practices.”[67] Reliance is placed upon an extract from Centrelink’s own website in relation to claiming compensation from Centrelink where under the sub-heading “Legal Liability” an example is given in relation to what must be established for a claim of negligence causing economic loss to be accepted and paid by Centrelink.[68]
[67] See generally Mr Fazio’s September 2008 Affidavit, paras.12-22 (the quote is from para.22).
[68] Mr Fazio’s September 2008 Affidavit, para.13 and Annexure ASF6.
In a very general way the question of “possible misfeasance” by officers of Centrelink is again raised in Mr Fazio’s September 2008 Affidavit.[69]
[69] Mr Fazio’s September 2008 Affidavit, para s.23-24.
In a letter to the Federal Minister for Finance and Deregulation dated 3 September 2008 annexed to Mr Fazio’s September 2008 Affidavit Mr Fazio asserts that he and Ms Underdown “suffered inhumanely at the hands of Centrelink, being treated like second class citizens in that numerous errors were made that delayed our lawful entitlements for a disability pension and carer’s allowance and pension.”[70] He goes on to point out that the relevant decisions by Centrelink “were ALL overturned by way of appeal at a later date and monies due paid retrospectively” but that because of her death (on 1 July 2007) it was too late for Ms Underdown to be apologised to and properly compensated.[71]
[70] Mr Fazio’s September 2008 Affidavit, Annexure ASF1.
[71] Mr Fazio’s September 2008 Affidavit, Annexure ASF1.
Mr Fazio’s May 2008 Affidavit provided in part as follows:
“…to propose that a Duty of Care is never owed in any circumstances by Centrelink, is simply disingenuous as best.
…the appropriate long held principle of law in this Case is such that; Centrelink is a statutory body and therefore it is not in issue Centrelink “may come under a Common Law Duty of Care both in relation to the exercise and the failure to exercise power or functions. Liability will arise in negligence in relation to the failure to exercise power or function only if there is, in the circumstances, a duty to act.” The circumstances that may give rise to the Duty of Care owed, is the relationship between Samantha, myself and Centrelink…”[72]
[72] Mr Fazio’s May 2008 Affidavit, paras. 6 and 7.
No reasonable prospect of success – Centrelink’s Argument
Centrelink argues that Mr Fazio has no reasonable prospects of success because he:
a)would not be entitled to damages if there was a breach of the Social Security Act 1991 (Cth)[73] as no private right to damages arises from the exercise of administrative powers where there is a statutory right to review; and
b)has not established that the Court has jurisdiction to deal with the matter.
[73] “SS Act”.
Centrelink submits that under s.17A(3) of the FM Act, for an application to have no reasonable prospects of success, the application need not be hopeless or bound to fail. What must be shown is that:
“[t]he allegations are ‘so clearly untenable that [they] cannot possibly succeed”.[74]
[74] Citing Duncan v Lipscombe Child Care Services (2006) 150 IR 471 at 6 per Heerey J; [2006] FCA 458 at para.6 per Heerey J (“Duncan”).
Centrelink refers to various judgments which hold that where an exercise of statutory power is subject to a right of review and the decision-maker exercises the power in good faith, no duty of care in the exercise of that power arises.[75] Centrelink says the theory behind this principle is that the existence of the appeal process can ‘cure’ any negligence associated with the exercise of statutory power.[76]
Mr Fazio’s response to the summary dismissal application
[75] See Submissions of the Respondent on Application for Summary Dismissal (“Respondent’s Submissions”) at paras.14-22, referring to Jones v Department of Employment [1989] QB 1; Scott v Secretary Department of Social Security (2000) 65 ALD 79; [2000] FCA 1241 (“Scott 2000”); Scott v Pedler (2004) 80 ALD 284; [2004] FCAFC 67 (“Scott 2004”); Coffey v Secretary, Department of Social Security [1999] FCA 375 (“Coffey”); Wang v Secretary, Department of Employment and Workplace Relations [2006] FCA 898 (“Wang”).
[76] Respondent’s Submissions at para.16.
Summary Points of Claim
In opposition to the application for summary dismissal, Mr Fazio also filed on 26 September 2008 a document entitled ‘Summary Points of Claim by the Applicant’.[77]
[77] “Mr Fazio’s Summary Points”.
In Mr Fazio’s Summary Points and oral submissions he referred to the following matters:
a)late payment of Centrelink entitlements;
b)the denial of Centrelink entitlements on two occasions.
c)the financial and emotional stress of the review process into Mr Fazio’s entitlement to the carer payment;
d)the inability to buy pain relief medication and other medication for Ms Underdown due to Centrelink’s non-payment of entitlements;
e)that Centrelink knew that Ms Underdown ‘had little time left before dying and that we were desperately in need of social security payments’;[78]
f)the financial and emotional cost to Mr Fazio of having to resend information already sent to Centrelink to support an application for benefits immediately after Ms Underdown’s death;
g)Mr Fazio’s inability to pay for Ms Underdown’s cremation and funeral service in a timely manner; and
h)the anxiety Mr Fazio experienced when Centrelink contacted the funeral company who were conducting the funeral for Ms Underdown.
[78] Transcript, 30 September 2008, at page15.
Duty of care
Mr Fazio submits that Centrelink owed him a duty of care to avoid loss and damage by diligently assessing all applications for social security entitlements and ensuring that entitlements were received when due. Mr Fazio argues that:
a)the law of negligence applies equally to statutory bodies as to other parties;[79]
b)the unique circumstances faced by Mr Fazio and Ms Underdown gave rise to a duty on the part of Centrelink to avoid foreseeable harm to them;[80]
c)the available review rights under the SS Act cannot remedy Centrelink’s defective decisions;
d)the WA Police and welfare officers advised Mr Fazio that they owe “a duty of care to ensure [Mr Fazio’s] welfare”, therefore Centrelink must have also owed Mr Fazio and Ms Underdown a duty of care;[81] and
e)information on Centrelink’s website shows that Centrelink can owe Mr Fazio a duty of care.
[79] Mr Fazio’s Summary Points at 42 and 44.
[80] Mr Fazio’s Summary Points at 29 and 45.
[81] Mr Fazio’s September 2008 Affidavit, paras.11-12.
According to Mr Fazio:
“…Centrelink was aware, or ought to have been aware, that any delay in receiving social security payments to which Samantha and I were entitled, would have a significant adverse effect on the emotional, financial and mental health and wellbeing of us both, especially Samantha.”[82]
[82] Mr Fazio’s Summary Points at para.6.
Case Law
Mr Fazio argues that previous decisions of the Federal Court which find that breaches of the SS Act do not confer a private right of action for damages should be distinguished because:
a)the review rights under the SS Act cannot remedy the damage caused to the applicant;[83]
b)Centrelink’s decisions made pursuant to the SS Act in the present case were different and have not been the subject of previous decisions;[84] and
c)the factual circumstances of his case are different.
[83] Mr Fazio’s Summary Points at para. 32.
[84] Mr Fazio’s Summary Points at para.33.
Mr Fazio submits that the decision in Scott 2000 should be confined to its facts.[85] In Mr Fazio’s view, that case involved a claim for a breach of duty to advise of right to a Centrelink benefit and for the failure to process claims with due expedition and his claims are not based on either of these arguments.[86]
[85] Mr Fazio’s Summary Points at para.50.
[86] Mr Fazio’s Summary Points at para.50.
If the Court finds there is a principle that no right to damages arises in the present case, then Mr Fazio submits in the alternative that such a principle is wrong and should be overturned.[87]
Additional claims
[87] Mr Fazio’s Summary Points at para.34.
Misfeasance in public office
The applicant also alleges misfeasance in public office.
The allegation is not strongly put. It is said that misfeasance may be possible, but is dependent upon closer examination.[88]
[88] See 44(b) and 47 above.
Request to add co-applicant
Mr Fazio submits that:
“I believe the interests of my late wife and her estate, the anguish, pain, suffering and damages she experienced due to both the negligent and reckless actions and inactions of the respondent, are being dismissed and swept under the carpet so to speak, by the non inclusion of such as a party to these proceedings.”[89]
[89] Mr Fazio’s September 2008 Affidavit at para.4.
Consideration - Jurisdiction
It must first be established that this Court has jurisdiction to hear the application.
In summary, Mr Fazio alleges that:
a)various benefits owed to he and Ms Underdown were incorrectly paid;
b)he has suffered damage as a consequence of a breach of either a statutory or common law duty of care owed by Centrelink to him; and
c)there has been misfeasance in public office by certain unidentified Centrelink officers.
The issues concerning quantum and timing of payment of the various benefits have been resolved as to the quantum and timing of those benefits as a consequence of decisions of Authorised Review Officers, and, therefore, need no further attention in that regard in these reasons for judgment.[90]
[90] See paras.28, 31, 40 and 48 above.
Scott 2000 is the leading case in relation to whether an action can be brought for breach of a statutory duty of care or a common law duty of care as a consequence of administrative actions under the SS Act or the SS Administration Act. At first instance a Justice of the Federal Court had upheld an appeal by the appellants from the AAT but dismissed a claim for damages. On appeal, the Full Court of the Federal Court dismissed the appeal concerning the claim for damages. The Full Court held that the SS Act:
“… is not to be interpreted as indicating an intention to confer a private right of action for a breach of any of its provisions now in question, given especially the existence in the legislation of particular mechanisms for the review of decisions made within the department.”[91]
[91] Scott 2000 ALD at 87 per Beaumont and French JJ; FCA at para 19 per Beaumont and French JJ.
In relation to a common law duty of care the majority in Scott 2000 held:
“… that there was no general common law duty of care to advise the appellants of benefits that might potentially be available under the Act”[92].
[92] Scott 2000 ALD at 87 per Beaumont and French JJ; FCA at para 20 per Beaumont and French JJ.
The majority in Scott 2000 went on to say that:
“Common law damages cannot be claimed merely for failure to act with due expedition”,
absent a claim for misfeasance.[93]
[93] Scott 2000 ALD at 88 per Beaumont and French JJ; FCA at para 24 per Beaumont and French JJ
In Scott 2000 Finkelstein J agreed with the orders of the majority, Beaumont and French JJ, but disagreed with one aspect of the reasoning in the majority judgment. Whilst agreeing that there was no breach of any duty of care, Finkelstein J went on to express concern about whether the respondent (the Secretary of the Department of Social Security) owed the appellants a duty of care, and went on to hold that a duty of care may arise.[94] For the purposes of these Reasons for Judgment it is unnecessary to further consider, at this stage, the rationale for Finkelstein J’s reasoning.
[94] Scott 2000 ALD at 89-90 per Finkelstein J; FCA at paras.29-32 per Finkelstein J.
The majority judgment in Scott 2000 was applied by another Full Court in Scott 2004, a case involving the same appellants. The appeal was against a judgment rejecting relief sought by way of declarations, injunctions, aggravated and exemplary damages against officers of the Department of Social Security,[95] in relation to decisions said to have been wrongly made or wrongly omitted to have been made by those officers concerning applications by the appellants for disability social service benefits provided under the SS Act.[96]
[95] “DSS”.
[96] Scott 2004 ALD at 285 per Conti J; FCAFC at para. 6 per Conti J.
The leading judgment of the Full Court of the Federal Court in Scott 2004 was delivered by Conti J who having dealt with the prior proceedings in Scott 2000 and the first instance judgment of Gray ACJ held that:
“… the Act is not to be interpreted as evincing the intention to confer a private right of action for breach of statutory duty, given at least the stipulation by the Act of mechanisms for the review of decisions previously made by officers of the DSS.”[97]
[97] Scott 2004 ALD at 319 per Conti J; FCAFC at para. 93 per Conti J.
Conti J also observed that the previous judgment of the majority of the Full Court of the Federal Court in Scott 2000 that the Secretary of the DSS:
“…is not subject to a common law duty of care in favour of the appellants for social security benefits in relation to the giving of information as to potential benefits that might be made available under the Act”,
constituted a formidable barrier of decisive significance to the prosecution of the appellant’s appeal.[98]
[98] Scott 2004 ALD at 319 and 320 per Conti J; FCAFC at paras.94 and 92 per Conti J.
In Scott 2004 Conti J went on to observe that:
“In relation to disappointed or rejected applicants for social security benefits, the statutory remedy provided is for review by the SSAT, and subsequently by the AAT.”[99]
[99] Scott 2004 ALD at 3223 per Conti J; FCAFC at para.102 per Conti J.
In Wang v Minister, Department of Employment and Workplace Relations[100] the Full Court of the Federal Court dealt with an appeal arising out of the termination of employment of the appellants and their subsequent dealings with Centrelink seeking social security payments.[101] The Full Court dealt with the nature of the Federal Court’s jurisdiction and the Commonwealth administrative law regime for social security payments as follows:
“[6] Although the primary judge set out in some detail the appellants’ claims, he was ultimately able to dispose of the proceeding very briefly. That is because he accepted the contention of the respondent that the Court lacked jurisdiction to entertain any of the appellants’ claims. His Honour noted that the appellants had submitted that the Federal Court has general jurisdiction in matters involving federal statutes, subject only to express legislative restriction, and that this submission was fundamentally wrong.
[7] His conclusion on jurisdiction was as follows:
[48] The claims of the applicants are not within the jurisdiction of the Federal Court. The Court does not have jurisdiction to try criminal offences such as fraud and conspiracy. Breaches of the Social Security Act do not confer private rights for damages: Scott v Secretary Department of Social Security (2000) 65 ALD 79 at [24], Scott v Pedler [2004] FCAFC 67 at [1], [53], [93], [102–103] and [106]. Nor is there any duty of care owed: Scott v Pedler. The Federal Court does not have a jurisdiction of general oversight of the administrative efficiency of federal government entities.
[49] Because there is no jurisdiction for this Court to deal with various claims made it is not appropriate to consider whether any reasonable causes of action are raised. Such an exercise would amount to exercising a jurisdiction which the Court does not have.”[102]
[100] [2007] FCAFC 17 (“Wang Appeal”). The judgment under appeal was Wang referred to in footnote 75 above.
[101] Wang Appeal at para.1 per Sundberg, Dowsett and Bennett JJ.
[102] Wang Appeal at paras.13 and 14 per Sundberg, Dowsett and Bennett JJ.
The Full Court found the primary Judge was bound to follow the Full Court’s reasoning in Scott 2000, and even though it was not argued that the Full Court should depart from it, they would not do so in any event because they were not satisfied that it was plainly wrong.[103]
[103] Wang Appeal at para.19 per Sundberg, Dowsett and Bennett JJ.
Two first instance decisions of the Federal Court require consideration. In Pickering v Chief Executive Officer of Centrelink[104] the Federal Court dealt with an application for summary dismissal of a claim involving the alleged refusal to make a payment for a bus fare to the applicant. In that case, a single Justice of the Federal Court held that “the controversy before the Court is one which can arguably be characterised as arising under the [SS Administration Act] within the meaning of s39B(1A)(c) of the Judiciary Act.”[105] The controversy which was said to arise, on a proper construction of the SS Administration Act was whether a Centrelink officer acted lawfully in giving certain advice to the applicant as to the effect of the SS Administration Act and in declining to make an advance payment to the applicant in response to the applicant’s request for such payment.[106] This was said to provide a sufficient basis:
“upon which a declaration might be sought as to the proper construction of the Act and whether …[the officer] acted lawfully in making the statements that he did to the applicant and in declining to make the payment to the applicant. It is also arguable that the applicant could, as part of the accrued jurisdiction, bring a claim for damages in negligence.”[107]
[104] [2006] FCA 477 (“Pickering (No.1)”).
[105] Pickering (No.1) at para.18 per Siopis J.
[106] Pickering (No.1) at para.18 per Siopis J.
[107] Pickering (No.1) at para.19 per Siopis J.
More recently, in Pickering v Centrelink[108] another single Justice of the Federal Court upheld an application for summary dismissal of a claim for damages by the applicant on the basis that there was no private right to claim damages under the SS Act, and there was no matter which arose owing its existence to federal law or depending on federal law for its enforcement, a matter being a right or duty arising under a law made by the Commonwealth Parliament.[109] In Pickering (No.2) the Court followed Scott 2000 and Scott 2004, and also referred with approval to the extract from the judgment at first instance in Wang cited above in Wang Appeal. The Federal Court therefore held that it had no jurisdiction to hear the matter.[110]
[108] [2008] FCA 561 (“Pickering (No.2)”). The applicant was the same person as in Pickering (No 1).
[109] Pickering (No.2) at para.23 per McKerracher J.
[110] Pickering (No.2) at paras.17-23 per McKerracher J.
The Court notes that the judgment in Pickering (No.1) was delivered ex tempore. Further, it appears to have been delivered without the Court being referred to the Full Court judgments in Scott 2000 and Scott 2004. Insofar as the judgment in Pickering (No.1) asserts that there may be, even as part of the accrued jurisdiction, a claim for damages in negligence against Centrelink, the weight of authority suggests the contrary.
Mr Fazio urged that this Court follow the judgment of Finkelstein J in Scott 2000. The suggestion from Finkelstein J in Scott 2000 that a duty of care may arise is a minority position, not adopted subsequently by the Full Court of the Federal Court in Scott 2004 or in Wang Appeal, or by single Justices in Wang and Pickering (No 2), and was not adverted to in Pickering (No 1). As the inferior federal court this Court is bound to apply the decisions of courts superior to it in the federal court’s hierarchy.[111] In this case, that means applying the majority judgment in Scott 2000, and the judgments in Scott 2004, Wang, Wang Appeal and Pickering (No 2).
[111] Trident General Insurance Co Limited v McNiece Bros Proprietary Limited (1987) 165 CLR 107 at 129-130 per Brennan J; R v Casey; R v Smythe [1977] Qd R 132; Cassell & Co Ltd v Broome [1972] AC 1027.
For the same reasons as set out in the majority judgment in Scott 2000, and the judgments in Scott 2004, Wang, Wang Appeal and Pickering (No 2), this Court has no jurisdiction to deal with an application seeking damages for alleged breach of a common law duty of care or breach of statutory duty arising from the administrative acts of Centrelink. Mr Fazio’s claims for damages for breach of a common law duty of care and for breach of statutory duty must therefore be dismissed.
Additional claims by the applicant
Misfeasance in public office
The basic elements of misfeasance in public office were summarised and set out in Scott 2004 as follows:
“[72] In Tahche v Abboud [2002] VSC 42, Smith J observed at [16] — [19] that the High Court has indicated the limits of this tort remain to be defined. After referring to Mengel, Sanders and other Australian and English authorities, his Honour identified the basic elements of this tort as follows:
(1) the defendant must hold a public office;
(2) there must be an invalid exercise of power or purported exercise of power;
(3) the defendant must be shown to have acted with the necessary intent; and
(4) the plaintiff must suffer damage as a consequence of the exercise of power or purported exercise of power.
The second requirement, the invalid exercise of power, includes an absence of power and acts invalid for want of procedural fairness. It includes the exercise of a power for an improper purpose, including the purpose of a specific intent to cause injury. It arguably includes an exercise of power for irrelevant considerations or for considerations that were manifestly unreasonable.
As to the third element, intent, it includes acting for the improper ulterior motive of intent to cause injury to the plaintiff (“targeted malice”). The requisite intent also includes acting with knowledge that there was no power to so act and that the act would cause or be likely to cause injury to the plaintiff, or proceedings with reckless indifference as to the existence of the power to engage in the conduct in question and its consequences.
What is involved is an abuse of power, and it is the absence of an honest attempt to perform the functions of the office which is at the heart of the tort.”[112]
[112] Scott 2004 ALD at 312 per Conti J; FCAFC at para.72 per Conti J.
The claim for misfeasance in public office is only tentatively advanced by Mr Fazio. It is suggested that it is “possible” that there may have been misfeasance, but that it requires “closer examination”.
In the Court’s view there has been no misfeasance in public office by any officer of Centrelink, on the presently available evidence. That evidence does not disclose, in particular, that any officer of Centrelink has acted with the necessary intent of causing injury to Mr Fazio (or Ms Underdown so far as that might be relevant). It may be that injury, in a general sense, has been caused by the acts of Centrelink officers, and in particular that feelings have been hurt, sometimes seriously so. There is however no, or no sufficient, evidence that any officer of Centrelink did so with the necessary intent, or did so recklessly indifferent to the consequences flowing from the various administrative decisions made from time to time. Administrative error, inaction and oversight in a large and unwieldy bureaucracy are not enough to establish misfeasance.
The necessary elements to establish misfeasance in public office cannot be made out, and this claim therefore has no reasonable prospect of success. To dismiss a matter on the basis that it has no reasonable prospect of success the Court does not need to find that the application is hopeless or bound to fail.[113]
[113] FM Act, s.17A(3)..
The Court cannot summarily dismiss an application “[u]nless only one conclusion can be said to be reasonable”.[114] On the evidence for Mr Fazio in the present matter only one conclusion is reasonable in relation to misfeasance.
[114] Boston Commercial Services Proprietary Limited v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146 at 157 per Rares J; [2006] FCA 1352 at para.45 per Rares J (“Boston Commercial”); Balding v Ten Talents Pty Ltd (2007) 162 IR 17 at 25 per Lucev FM; [2007] FMCA 145 at para.20 per Lucev FM (“Ten Talents”).
The Court must consider whether there would be injustice if the applicant's case is summarily dismissed.[115] The potential injustice is that Mr Fazio will not have the opportunity of a full hearing to address the Court on the merits of his case as to misfeasance. However, Centrelink ought not have to bear the expense of defending a claim which is not presently supported by Mr Fazio’s own evidence, and which is only put as a “possible” claim.
[115] Boston Commercial IPR at 157 per Rares J; FCA at para.46 per Rares J; Ten Talents IR at 25 per Lucev FM; FMCA at para.20 per Lucev FM.
In the circumstances, Mr Fazio’s claim for misfeasance in public office will be summarily dismissed.
Request to add co-applicant
Mr Fazio seeks to re-include Ms Underdown as a co-applicant.[116]
[116] See quote above at 24
The reason for the prior removal of Ms Underdown as a party to the application is not apparent. The Court presumes that Ms Underdown was removed because she had passed away. It is unnecessary to address the applicant’s claim to re-include Ms Underdown (or her estate) as a party to the proceedings. This is because the applicant has not succeeded in otherwise resisting Centrelink’s summary dismissal application. Given all of the facts the same result would follow for Ms Underdown and no purpose would be served by re-including her (or her estate) as a co-applicant.
Conclusion – Amended application
The Court will order that Mr Fazio’s amended application be dismissed because:
a)the Court has no jurisdiction to hear the claim concerning alleged breaches of a common law duty of care or statutory duty of care;
b)there is no reasonable prospect of the claim concerning alleged misfeasance in public office being successful, on the evidence presently before the Court; and
c)the application to re-include Ms Underdown (or her estate) as a co-applicant is futile because it would be dismissed for the same reasons as set out in (a) and (b) above.
Costs
On 20 February 2008 Centrelink’s solicitors wrote to Mr Fazio advising that in Centrelink’s view his application did not give rise to an entitlement to damages. Centrelink’s solicitors informed Mr Fazio that Centrelink would not seek costs if the application was then discontinued, but that Centrelink would seek costs if Mr Fazio continued to press the application and if Centrelink were ultimately successful.[117] Mr Fazio has pressed on with the application.
[117] See letter to Applicant dated 20 February 2008.
In circumstances where Centrelink:
a)has put Mr Fazio on notice as to the costs consequences of proceeding with the application; and
b)has succeeded in having the amended application dismissed,
costs ought to follow the event, and Mr Fazio, impecunious or not, must therefore be ordered to pay Centrelink’s costs.
Centrelink filed a statement of costs in Court on 30 September 2008. Centrelink say that they are entitled to costs of $10,239, but only claim costs of $8,184. The Court is prepared to order all of the costs claimed except for the costs of Mr Fazio’s application heard on 2 May 2008 for an adjournment of the proceedings. Mr Fazio was successful in that adjournment application, and in any event it was an application which a Commonwealth authority acting as a model litigant might have quite properly acceded to for the purposes of allowing Mr Fazio to obtain pro-bono legal advice. The claim for $2080 in relation to that hearing will therefore be deducted from the costs claimed by Centrelink. There will therefore be an order that Mr Fazio pay Centrelink’s costs of $6104. In view of the available evidence as to Mr Fazio’s financial position the Court will allow until 4.00pm on 31 December 2009 for those costs to be paid.
Orders
There will be orders in the following terms:
a)the Respondent’s interim application filed on 22 April 2008 be upheld;
b)the Applicant’s application, as amended and filed on 8 April 2008, be dismissed; and
c)the Applicant pay the Respondent’s costs in the sum of $6104.00 by 4.00pm on 31 December 2009.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Lucev FM
Deputy Associate: Michele Lord
Date: 16 December 2008
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