Scott v Handley
[1997] FCA 1070
•3 OCTOBER 1997
FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE LAW - whether damages are available as a remedy when mandamus is sought under s 39B(1) of the Judiciary Act 1903 (Cth) - whether judge at first instance erred in striking out that part of the applicants’ claim.
Federal Court Rules: O 20 r 2
Judiciary Act 1903 (Cth) s 39B
RALPH SCOTT & ANOR v J R HANDLEY SM & ORS
VG 192 of 1997
NORTHROP ACJ, MERKEL & GOLDBERG JJ
MELBOURNE
3 OCTOBER 1997
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 192 of 1997
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
RALPH SCOTT
SOPHIE SCOTTAPPELLANTS
AND:
J R HANDLEY SM
ADMINISTRATIVE APPEALS TRIBUNAL
SECRETARY, DEPARTMENT OF SOCIAL SECURITYRESPONDENTS
JUDGES:
NORTHROP ACJ, MERKEL & GOLDBERG JJ
DATE OF ORDER:
3 OCTOBER 1997
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
The appeal is allowed.
The order made on 10 April 1997 striking out paragraph 4 of the application is set aside.
The second respondent’s notice of motion filed 3 April 1997 is remitted to the trial judge for further consideration to be determined as thought appropriate by him.
The second respondent pay the appellants’ costs of the appeal limited to those disbursements which normally would be payable on an order for costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 192 of 1997
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
RALPH SCOTT
SOPHIE SCOTTAPPELLANTS
AND:
J R HANDLEY SM
ADMINISTRATIVE APPEALS TRIBUNAL
SECRETARY, DEPARTMENT OF SOCIAL SECURITYRESPONDENTS
JUDGES:
NORTHROP ACJ, MERKEL & GOLDBERG JJ
DATE:
3 OCTOBER 1997
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
NORTHROP ACJ:
I agree with the reasons expressed by Goldberg J and make one or two observations only. First, it would appear that matter VG 666 of 1996 and matter VG 69 of 1997 are so connected they should always be listed and heard together by the same judge at the same time. In fact it is noted that there is a motion by the present appellants for that to be done. I do not know if any order has been made on that point yet. Subject to that, I reiterate that what the Court does today has no bearing whatsoever on the question of whether there is any cause of action, whether there is any valid claim for damages and as to what should be done to the applications themselves when they come back before the trial judge. That is a matter solely for the trial judge and this Court expresses no view whatsoever on it. Secondly, as far as the costs are concerned I would give the respondent the opportunity to argue against any order for costs at this stage. Subject to that, I agree with the orders proposed by Goldberg J.
I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice R M Northrop
Associate:
Dated: 17 October 1997
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 192 of 1997
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
RALPH SCOTT
SOPHIE SCOTTAPPELLANTS
AND:
J R HANDLEY SM
ADMINISTRATIVE APPEALS TRIBUNAL
SECRETARY, DEPARTMENT OF SOCIAL SECURITYRESPONDENTS
JUDGES:
NORTHROP ACJ, MERKEL & GOLDBERG JJ
DATE:
3 OCTOBER 1997
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
MERKEL J:
I also agree with the reasons and observations of Northrop ACJ and Goldberg J. I am also in agreement that it is appropriate to hear what the respondent may wish to say on the question of costs.
I certify that this is a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel
Associate:
Dated: 17 October 1997
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 192 of 1997
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
RALPH SCOTT
SOPHIE SCOTTAPPELLANTS
AND:
J R HANDLEY SM
ADMINISTRATIVE APPEALS TRIBUNAL
SECRETARY, DEPARTMENT OF SOCIAL SECURITYRESPONDENTS
JUDGES:
NORTHROP ACJ, MERKEL & GOLDBERG JJ
DATE:
3 OCTOBER 1997
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
GOLDBERG J:
On 21 February 1997 the appellants filed an application in the Court which professed to be made under s 39B of the Judiciary Act 1903 (Cth) in which the appellants claim the following relief:
“1.An order of certiorari quashing the decision of the first respondent (AAT Ref.:V96/627) under provisions 5(2)(b) and 5(2)(g) of the ADRJ Act 1977;
2.An order of mandamus compelling the second respondent to adequately review the first applicant’s special benefit on 29 September 1994 and to review the first applicant’s special benefit on 29 December 1994 under provisions 729 and 1296 of the Social Security Act 1991 and the current policy;
3.An order of mandamus or a declaratory order issued to the second respondent that a disability support pension be granted to the first applicant from 01 January 1995 under provision 94 of the Social Security Act 1991;
4.An order issued to the second respondent to pay the first applicant and the second applicant compensatory damages, with inclusion of exemplary damages, a total of $500,000.”
It appears from an associated proceeding (No VG 666 of 1996) that the Department of Social Security (“the Department”) had refused to allow the first appellant’s claim for arrears in respect of a disability support pension between 19 June 1995 and 5 October 1995. The first appellant had received a special benefit under Social Services legislation but as a result of a change in the statutory regime he was granted a disability support pension on 5 October 1995 but the Department refused to back date that pension to 19 June 1995. The Social Security Appeals Tribunal had refused the appellants’ claim for arrears of a disability support pension. The first appellant appealed to the Administrative Appeals Tribunal (“the AAT”) constituted by the first respondent which had on 26 September 1996 affirmed the decision of the Social Security Appeals Tribunal on 13 May 1996. In proceeding No VG 666 of 1996 the first appellant appealed to the Court pursuant to s 44 of the Administrative Appeals Act 1975 and that matter is still pending.
The application in this proceeding filed on 21 February 1997 was said to be made under s 39B of the Judiciary Act 1903 (Cth). The appellants sought to review the decision of the AAT under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and also sought compensatory and exemplary damages. In his affidavit in support of the application sworn on 31 January 1997 the first appellant said:
“1.The respondent has failed to adequately exercise statutory power and perform statutory duty; the failure to act has arosed contrary to made to me direct and indirect assertions. The chance granted to me by the Australian Parliament and ammendments to the Social Security Act 1991 has been wilfully suppressed by the respondent.
2.The grant of a disability support pension to me has been purposedly delayed to after the crucial date of 30/06/95. The purpose was to leave my wife without any means of support, and to make difficult for her to prepare the appeal against rejection by the respondent her disability support pension.
3.The respondent has intentionally tortured my wife and me for the unproper purpose with starvation for the period of two months.”
On 3 April 1997 the second respondent, the Secretary, Department of Social Security, filed a motion seeking an order pursuant to O 20 r 2 of the Federal Court Rules that the proceeding be stayed or dismissed generally, or alternatively be struck out as an abuse of process of the Court. When the motion came on for hearing before the learned primary judge on 10 April 1997 the second respondent submitted that as an appeal had been brought in the other proceeding, VG 666 of 1996 pursuant to s 44 of the Administrative Appeals Tribunal Act, an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) was inappropriate: see s 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
At the hearing before the learned primary judge on 10 April 1997 the second respondent submitted that the application for damages against the second respondent in paragraph 4 of the application was incompetent on the grounds that the Court had no jurisdiction to award damages in respect of an application brought pursuant to s 39B of the Judiciary Act. The learned primary judge adjourned the hearing of that part of the motion relating to jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to the hearing of the associated proceeding in No VG 666 of 1996. The second appellant who appeared for the appellants submitted that s 39B of the Judiciary Act was inserted into the Act to give the Court power to resolve all associated or connected matters. The learned primary judge accepted the submissions of the second respondent in relation to paragraph 4 of the application for damages pursuant to s 39B and gave his ruling in the following terms:
Well, I am satisfied there is no arguable case to be made out under paragraph 4 of the application. Damages are not available as a remedy when mandamus or defamatory (sic) order or prohibition is sought under section 39(B)(1) of the Judiciary Act, so I will strike paragraph 4 out of the application and I will otherwise adjourn the application to be heard on 29 April at 10.15 am.”
The reference in the transcript of the ruling to “defamatory order’ is obviously a typographical error for “declaratory order”.
The adjourned hearing of the balance of this proceeding and the proceeding No VG 666 of 1996 came on before the learned primary judge on 29 April 1997 when the second applicant sought an adjournment of the proceedings in order to enable the determination of the Court’s jurisdiction in relation to the claim for damages. The applicants had filed a notice of motion of 14 April 1997 seeking leave to appeal from the order of the learned primary judge on 10 April 1997 that paragraph 4 of the application be struck out. In support of that motion the appellants had filed an affidavit on 14 April 1997 which stated:
“2.That the original, accrued and associated jurisdictions of the Federal Court have been properly invoked under s.44 of the Administrative Appeals Tribunal Act 1975 and under s.39B of the Judiciary Act 1903.
3.That the tortious liability of the second respondent was raised at the directions hearing on 10 April 1997 and in the Affidavit to the Application under s.39B of the Judiciary Act 1903, namely:
(a)breach of statutory duty, and misfeasance in public office -
- actions stated in paragraph 1 of the abovesaid Affidavit;
(b)misfeasance in public office, and actions made maliciously and in bad faith, and breach of principle in Beaudesert Shire Council v Smith (1966) 120 CLR 145 - actions stated in paragraphs 2 and 3 of the abovesaid Affidavit.
4.That the tortious actions of the second respondent, presented in the abovesaid Affidavit, are associated matters under the meaning of s.32 of the Federal Court Act 1976.
5.That once seized with jurisdiction under s.39B of the judiciary Act 1903 the Federal Court has pendent jurisdiction, similar to the jurisdiction of the High court, to resolve the whole matter between parties for the purposes of ss.75 and 76 of the commonwealth Constitution and the Federal Court has jurisdiction to award damages for the tortious administrative actions.”
On 29 April 1997 the learned primary judge granted leave to appeal against his order made on 10 April 1997 on the basis that it was arguable that his order dismissing the claim for damages in paragraph 4 of the application was arguably not correct. He otherwise adjourned the proceedings in both matters pending determination of the appeal.
Section 39B of the Judiciary Act is in the following terms:
“The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.”
In support of that jurisdiction the Federal Court Rules provide in O 54A r1, which is headed Judiciary Act 1903 s 39B:
“Subject to this order the rules of Court describe the manner of making an application under section 39B of the Judiciary Act.”
Rule 2 sets out the form of the application and r 3 provides that:
“Subject to sub-rule 2 any other claim for relief coming within the jurisdiction of the Court and which arises out of or relates to or is connected with the same subject matter may be joined in an application under this order.”
For present purposes it is not necessary to refer to O 54A r3(2). It is well established by numerous decisions of the High Court that a "matter" is the justiciable controversy or dispute or the subject matter for determination in a legal proceeding: see Re Judiciary Act 1903 and Navigation Act 1912, (1921) 29 CLR 257, 265; Fencott v Muller (1983) 152 CLR 570, 602 ‑ 610. What is a "matter" in this context, and for the purposes of s 39B, may include a number of causes of action including a cause of action for a claim for damages.
Accordingly, the learned primary judge erred in law in concluding that damages were not available as a remedy when mandamus was sought under s 39B(1). Whether the Court has jurisdiction to award damages in exercise of its jurisdiction under s 39B(1) in any particular case depends upon identification of "the matter" which is before the Court. As the learned primary judge reached the conclusion that damages were not available at all where proceedings are brought under s 39B of the Judiciary Act 1903 (Cth) the learned primary judge never embarked upon a consideration of that issue which would be required before the Court could conclude that it does not have jurisdiction to award damages in the present proceedings. Until the learned primary judge considered and determined the extent and scope of “the matter” before the Court and the causes of action forming part of that “matter” it was premature to determine that damages were not available in the proceeding under s 39B.
For these reasons I would allow the appeal and set aside the orders made by the learned primary judge on 10 April 1997. I would remit the notice of motion dated 3 April 1997 to the learned primary judge for further consideration by him as he, in his discretion, may determine. I would also leave the further conduct of the hearing and determination of the appellant's application and the respondent's notice of motion of 3 April 1997 to the learned primary judge including any question of costs which have been incurred before him.
However, I wish to make it clear that in allowing this appeal I am expressing no view at all on the merits of the applicants’ case and in particular whether the applicants, the appellants in these proceedings, have an arguable cause of action for damages, nor am I expressing any view on how it may be appropriate for the Court to deal with the second respondent’s notice of motion filed on 3 April 1997.
Those are all matters for the learned primary judge who is responsible for the management of this proceeding and the proceeding associated with it, No VG 666 of 1996. It seems to me in the circumstances that as the appellants have succeeded on the appeal the second respondent should pay any costs of the appeal which may have been incurred by the appellants.
I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg
Associate:
Dated: 17 October 1997
The appellants appeared in person Counsel for the Respondent: Ms P Mortimer Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 3 October 1997 Date of Judgment: 3 October 1997
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