Scott v Human Rights and Equal Opportunity Commission

[2007] FMCA 1642

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SCOTT v HREOC [2007] FMCA 1642

PRACTICE & PROCEDURE – Summary dismissal – Human Rights and Equal Opportunity Commission declined complaint – judicial review application of decision.

Federal Magistrates Act 1999 (Cth)
Federal Magistrates Court Rules 2001 (Cth)
Human Rights and Equal Opportunity Commission Act, s.20, 20(2)(c)(i) & (iii), 2(3)(a), 2(3)(b)
Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5(2)
Race Discrimination Act

Scott v Secretary, Department of Social Security [1999] FCA 1774
Scott v Secretary, Department of Social Security [2000] FCA 1241
Scott v Peddler [2003] FCA 650
Scott v Peddler [2004] FCAFC 67
Ex parte Nguyen (1998) 196 CLR 254

Applicants: RALPH & SOPHIE SCOTT

Respondent: HUMAN RIGHTS & EQUAL OPPORTUNITIES COMMISSION

File number: MLG 1538 of 2006

Judgment of: Phipps FM

Hearing date: 23 April 2007

Date of last submission: 23 April 2007

Delivered at: Melbourne

Delivered on: 18 October 2007

REPRESENTATION

The Applicants appearing in person:

Counsel for the Respondent: Mr Ginnane

Solicitors for the Respondent: Australian Government Solicitors

ORDERS

1. The Application filed on the 18 September 2006 is dismissed pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001.

2. The Application contained in paragraph 3 of the Commonwealth of Australia’s Application filed 2 March 2007 is adjourned to the default date of 31 December 2007.

3. The Applicant shall pay the costs of the Second Respondent upon the Federal Court Scale to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1538 OF 2006

RALPH & SOPHIE SCOTT

Applicant

And

HUMAN RIGHTS & EQUAL OPPORTUNITES COMMISSION

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants were both born in Poland and came to Australia as refugees in 1986. They have disabilities and both receive pensions. A change in the law in the middle of 1995 meant that Mrs Scott's type of benefit ceased to exist and she had to apply for a different one. It was not paid for three months but was backdated. Mr and Mrs Scott claim that during the three months they suffered starvation and hardship. They now have a long history of dispute and litigation with Centrelink and its predecessor the Department of Social Security.

2. In May 2006 they complained to the Human Rights and Equal Opportunity Commission that decisions of the High Court and Federal Court and actions of Centrelink were inconsistent or contrary to their human rights. The Commission declined the complaint. The commission said their complaint against Centrelink had been dealt with adequately and their complaints against the courts were misconceived The applicants have applied for judicial review of the HREOC decision. The Commonwealth of Australia now applies for summary dismissal of the application.

3. The issue is whether the applicants have a reasonable prospect of success in their application for judicial review.

The applicants circumstances, the disputes and litigation

1. The applicants were both born in Poland and came to Australia as refugees in 1986. Since October 1991 the first applicant, Mr Scott was in receipt of Special Benefit. This is payable to persons who can demonstrate a need but who do not qualify for any other pension or benefit. Mr Scott was not entitled to a disability support benefit because he was permanently incapacitated on his arrival in Australia and had not completed 10 years residency.

2. In 1995 Mr Scott applied for a Disability Support Pension. He received a Disability Support Pension from 5 October 1995, however he claimed it should have been backdated to 19 June 1995. Eventually Heerey J declared Mr Scott was entitled to payment of Disability Support Pension from 19 June 1995.

3. In January 1993 Mrs Scott lodged a claim for Disability Support Pension. Her claim for a Disability Support Pension was rejected.

4. When Mrs Scott made her claim for a Disability Support Pension she was receiving a Partner Allowance. Due to legislative changes the Partner Allowance ceased to be payable to Mrs Scott after 30 June 1995. On 30 June 1995 she lodged an application for Special Benefit. It was not paid immediately but was then backdated to 1 July 1995. Mrs Scott received her first payment, including payment of arrears, on 1 September 1995.

5. Mrs Scott then appealed against the refusal of her application for a Disability Support Pension made in 1993. In September 1996 Centrelink conceded the application and so Mrs Scott became entitled to a Disability Support Pension from 28 January 1993.

6. The result was that the only difference between the quantum of the amount paid to the applicants was a modest fortnightly pharmaceutical allowance. In addition, payment of Mrs Scott's benefit for the period 1 July 1995 to 1 September 1995 was delayed when it was paid as arrears. Affidavits by Mrs Scott set out at length the applicants’ claims about what occurred to them. They complain about their treatment over the years. They complain that in the period of delayed payment, 1 July 1995 to 1 September 1995, they suffered starvation and hardship and that what happened to them amounts to torture and/or cruel, inhuman or degrading treatment.

7. The applicants brought two proceedings in the Federal Court.  The first was decided by Heerey J (Scott v Secretary, Department of Social Security [1999] FCA 1774).

8. The applicants alleged that officers of the Department and then Centrelink had intentionally, recklessly or negligently mislead the applicants as to the most appropriate payments to which they are entitled and had engaged in unlawful conduct in refusing to pay the applicants benefits for which they had applied. They alleged that officers had intentionally and unlawfully denied and delayed payments to them denying them, amongst other things, the right to an adequate standard of living, adequate nourishment and medicines and respect for their dignity. They alleged that the Department and Centrelink had a duty of care to them and had breached that duty of care.

9. Heerey J found that there was no duty of care and no other legally enforceable duties. He found that there was no basis for criticism of the Department or any of its officers.

10. Of Mr Scott's claim Heerey J said, “the evidence does not support the allegations of intentional, malicious and conspiratorial wrongdoing made in the statement of claim. There is no basis for a finding that the Department or any of its officers acted with an intention to cause harm to Mr Scott or knowingly acted in excess of power. There has been no misfeasance in public office.”[53].

11. Of Mrs Scott's claim Heerey J said, “the Departmental officers have applied the Act properly. They have sought to do the best they could for her, consistently with their statutory obligations. In some instances they have made decisions giving Mrs Scott the benefit of the doubt. The allegations of malicious, conspiratorial conduct are completely without foundation. There was no misfeasance in public office.”[83-85].

12. The applicants appealed. The Full Court of the Federal Court (Beaumont, French and Finkelstein JJ) dismissed the appeal (Scott v Secretary, Department of Social Security [2000] FCA 1241).

13. The applicants then applied for special leave to appeal to the High Court of Australia. The application was refused by Kirby and Callinan JJ on 10 August 2001.

14. The second application to the Federal Court was filed by the applicants on 16 July 2001. The respondents were officers of the Department of Social Security who had at various times dealt with the applicants claims. The applicants alleged negligence, action upon the case, trespass, trespass on the case, misfeasance in public office, intentional infliction of personal injury, infringement of rights and unlawful acts. The applicants sought declarations and injunctions as well as damages.

15. The application was dismissed by Gray ACJ. (Scott v Peddler [2003] FCA 650).

16. The applicants appealed. The appeal was dismissed by the Full Court, Gyles, Conti and Allsopp JJ, (Scott v Pedler [2004] FCAFC 67). In these proceedings, again the Court made favourable findings about the credibility and propriety of the conduct of the Department’s officers.

Summary Dismissal

1. The Court may summarily dismiss an application if it is satisfied that the applicants have no reasonable prospect of successfully prosecuting the proceeding-s.17A Federal Magistrates Act 1999(Cth), r.13.10 Federal Magistrates Court Rules 2001 (Cth).

2. In their complaints to HREOC the applicants refer to the International Covenant on Civil and Political Rights and the Declaration on the Rights of Disabled Persons. Both are reproduced in schedules to the Human Rights and Equal Opportunity Commission Act. The act gives HREOC certain functions in relation to the covenant and the declaration.

3. The applicants refer to the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. It is not reproduced as a schedule to the Act.

4. The functions of the commission contained in s.11(1) include "to inquire into any act or practice that may be inconsistent with or contrary to any human right".

5. For the purpose of this summary dismissal application I assume that the rights and freedoms which the applicants claim have been infringed are human rights within the meaning of the act.

6. Under s.20 of the Human Rights and Equal Opportunity Commission Act the Commission may decide not to inquire into any act or practice. One ground is where some other remedy has been sought and the subject matter of the complaint has been adequately dealt with. Another is that the complaint is misconceived. The grounds are contained in s.20(2)(c)(ii) and(iii).

7. The applicants say that they are aggrieved by the HREOC decision because it denies them their right to an effective remedy pursuant to arts. 2(3)(a) and 2(3)(b) of the International Covenant on Civil and Political Rights.

8. The applicants claim that the commission failed to take relevant considerations into account, took irrelevant considerations into account, exercised personal discretionary power at the direction of another person, the making of the decision was an improper exercise of the power, the exercise of power is so unreasonable that no reasonable person could so exercise the power and that it constitutes abuse of the power. The grounds given are a repetition of most of the grounds contained in s.5(2) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

9. For the complaint against Centrelink the Commission relied on the ground that another remedy had been sought and the complaint had been adequately dealt with. There is no doubt that another remedy, in fact many of them, had been sought. That happened in the two sets of Federal Court proceedings. Was the Commission entitled to say that the complaint had been adequately dealt with?

10. No reasonable basis exists for arguing that the commission was not entitled to come to the conclusion it did. Two judges of the Federal Court heard evidence given by all involved. They found no cause for complaint against the Department or its officers, in fact the contrary. Appeals against the decisions were dismissed. The commission relied on those cases and the findings made in coming to its conclusion. There is no reasonable argument that the Commission, in doing so, took into account anything other than what was relevant or that there was an improper exercise of power.

11. The commission decided that the claims against the courts are misconceived because it has no authority to inquire into the activities of courts. In Ex parte Nguyen (1998) 196 CLR 254 the High Court dealt with a claim that a Magistrate and a Chief Judge had discriminated against a litigant on the basis of race. The High Court refered to the immunity from suit which protects judicial officers from actions arising out of the judicial function. They said there was nothing in the Race Discrimination Act that suggests that Parliament intended to override the immunity. The same reasoning applies to the Human Rights and Equal Opportunity Commission Act.

12. The Commonwealth's submissions put other arguments but the High Court's decision is sufficient grounds for saying that the applicants have no reasonable prospects of success in the complaint that the Commission was in some way wrong in not proceeding with the complaint against the courts.

13. Consequently, the applicants have no reasonable prospects of success.  The application is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:  Jan Smith

Date:  10 October 2007