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…
Continue reading Fazio v Centrelink (No.2)
Sign in free to access the full text
- AGLC
- Fazio v Centrelink (No.2) [2008] FMCA 1389
- Case
- [2008] FMCA 1389
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
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
Full text does not contain this section.