Scott v Human Rights and Equal Opportunity Commission

[2010] FCA 1323

FEDERAL COURT OF AUSTRALIA

Scott v Human Rights and Equal Opportunity Commission [2010] FCA 1323

Citation:

Scott v Human Rights and Equal Opportunity Commission [2010] FCA 1323

Parties:

RALPH SCOTT and SOPHIE SCOTT v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION and COMMONWEALTH OF AUSTRALIA

File number(s):

VID 1020 of 2008

Judge:

NORTH J

Date of judgment:

2 December 2010

Corrigendum:

16 December 2010

Catchwords:

HUMAN RIGHTS – decision not to inquire into complaint on ground that courts have adequately dealt with subject matter of complaint in previous litigation – whether subject matter of the complaint means underlying conduct alone or whether it also includes legal character of complaint

PRACTICE AND PROCEDURE – application to reopen past litigation – where orders have been entered – where orders have not been entered

PRACTICE AND PROCEDURE – abuse of process – relitigation of past cases

Legislation:

Federal Court of Australia Act 1976 (Cth) s 31A(2)
Social Security Act 1991 (Cth) ss 116(1), 1338(1)
Australian Human Rights Commission Act 1986 (Cth) ss 3, 11(1)(f), 11(1)(aa), 20(1), 20(2), 29(2), 46P(1), 46PD, 46PF(1)
Racial Discrimination Act 1975 (Cth) ss 3(1), 9
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(a), 5(1)(e), 5(1)(h), 5(1)(j), 5(2)(b), 5(2)(e), 5(2)(g), 5(3)(b)
Judiciary Act 1903 (Cth) s 39B

International Covenant on Civil and Political Rights. Opened for signature 16 December 1966. UNTS 999 (entered into force 23 March 1976) Arts 2(3)(a), 7, 14, 25(c), 26
International Convention for the Elimination of All Forms of Racial Discrimination. Opened for signature 21 December 1965. UNTS 195 (entered into force 4 January 1969) Art 5(1)(iv)
Declaration on the Rights of Disabled Persons (9 December 1975) Arts 3, 7, 10

Cases cited:

Scott v Secretary, Department of Social Security [1999] FCA 1774
Scott v Secretary, Department of Social Security [2000] FCA 1241
Scott & Anor v Secretary, Department of Social Security M112/00
Scott v Pedler [2003] FCA 650
Scott v Pedler [2004] FCAFC 67
Scott & Anor v Pedler & Ors M83 of 2004
Scott v Human Rights and Equal Opportunity Commission [2007] FMCA 1642
Scott v Human Rights and Equal Opportunity Commission [2007] FCA 2055
Northern Territory v Mengel [1995] HCA 65; (1995) 185 CLR 307
Tahche v Abboud [2002] VSC 42
Attorney General (Vic) v Wentworth (1998) 14 NSWLR 481
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Bread Manufacturers of NSW v Evans (1981) 180 CLR 404
Evans v Donaldson (1909) 9 CLR 140
R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177
Lavender & Son v Minister of Housing (1970) 3 All ER 871
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
R v Mr Justice R S Watson, A Judge of the Family Court of Australia; Ex parte Armstrong (1976) 136 CLR 248
R v Lusink; Ex parte Shaw (1980) 32 ALR 47
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300
Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558
Fang v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 121
AB v Federal Commissioner of Taxation (1998) 157 ALR 510
Smith v New South Wales Bar Association (1992) 108 ALR 55
Bailey v Marinoff (1971) 125 CLR 529
DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226
Wentworth v Rogers (No 9) (187) 8 NSWLR 388
Haig v Minister Administering the National Parks and Wildlife Act 1974 (1994) 85 LGERA 143
Donkin v AGC (Advances) Ltd [1995] FCA 696
Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543
State Bank of New South Wales v Alexander Stenhouse Ltd (1997) Aust Torts Reports 81
Spalla v St George Motor Finance Ltd(No 6) [2004] FCA 1699

Date of hearing:

28 July 2010

Place:

Melbourne

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

228

Counsel for the Applicants:

Applicants appeared in person

Counsel for the Respondents:

Mr P J Ginnane

Solicitor for the Respondents:

Australian Government Solicitor

FEDERAL COURT OF AUSTRALIA

Scott v Human Rights and Equal Opportunity Commission [2010] FCA 1323

CORRIGENDUM

1.In Order 2, the time “2.15 am” should read “2.15 pm”.

I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:       16 December 2010

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1020 of 2008

BETWEEN:

RALPH SCOTT
First Applicant

SOPHIE SCOTT
Second Applicant

AND:

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	2 DECEMBER 2010
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.Subject to paragraph 2 of these orders, the proceeding is dismissed.

2.The application under Order 21 of the Federal Court Rules relating to vexatious litigants referred to in paragraphs 2 and 3 of the notice of motion filed by the second respondent on 23 June 2009 is adjourned until 2.15 am on 28 March 2011. 

3.The applicants pay the second respondent’s costs of the proceeding.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1020 of 2008

BETWEEN:

RALPH SCOTT
First Applicant

SOPHIE SCOTT
Second Applicant

AND:

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

JUDGE:	NORTH J
DATE:	2 DECEMBER 2010
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[1]
THE FACTUAL CONTEXT........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[6]
THE COMPLAINT TO THE COMMISSION........ ........ ........ ........ ........ ........ ........ ..	[17]
THE ROLE OF THE COMMISSION........ ........ ........ ........ ........ ........ ........ ........ ........	[31]
Inquiry into acts or practices contrary to human rights........ ........ ........ ........ ........ .	[31]
Inquiry into unlawful discrimination........ ........ ........ ........ ........ ........ ........ ........ .......	[36]
THE DECISION OF THE COMMISSION........ ........ ........ ........ ........ ........ ........ ........	[43]
JUDGMENTS RELIED UPON BY THE COMMISSION........ ........ ........ ........ ......	[48]
Scott v Secretary, Department of Social Security [1999] FCA 1774 (Heerey J)...	[48]
Scott v Secretary, Department of Social Security [2000] FCA 1241 (Beaumont, French and Finkelstein JJ]........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[60]
Scott & Anor v Secretary, Department of Social Security M112/00 (Callinan and Kirby JJ)........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[67]
Scott v Pedler & Ors [2003] FCA 650 (Gray ACJ)........ ........ ........ ........ ........ ........	[68]
Scott v Pedler [2004] FCAFC 67 (Gyles, Conti and Allsop JJ)........ ........ ........ .....	[93]
Scott v Pedler M83 of 2004 (Hayne & Crennan JJ)........ ........ ........ ........ ........ ......	[97]
THE PREVIOUS COMPLAINT TO THE COMMISSION AND THE PROCEEDINGS WHICH FOLLOWED........ ........ ........ ........ ........ ........ ........ ........ ...	[98]
THE GROUNDS OF THE CURRENT APPLICATION FOR REVIEW........ .....	[107]
HUMAN RIGHTS VIOLATIONS ALLEGED BY MR AND MRS SCOTT........	[119]
International Covenant on Civil and Political Rights........ ........ ........ ........ ........ .....	[120]
Declaration on the Rights of Disabled Persons........ ........ ........ ........ ........ ........ .......	[123]
CONSIDERATION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[124]
The application for dismissal under s 31A Federal Court of Australia Act........ .	[124]
The subject matter of the complaint has not been dealt with in the litigation because no Court has considered whether the Commonwealth violated Mr and Mrs Scott’s human rights........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[128]
The subject matter of the complaint has not been dealt with in the litigation because some of the matters of complaint were omitted from consideration by the Courts, or were not previously raised by Mr and Mrs Scott........ ........ ........ .....	[135]
The subject matter of the complaint has not been dealt with adequately by the Courts because the judgments of the Courts are wrong........ ........ ........ ........ ........	[145]
THE ADJR Act grounds of challenge to the Commission decision........ ........ ......	[148]
Failure to take into account relevant considerations........ ........ ....	[148]
The decision was based on facts which did not exist........ ........ ........ ...	[155]
Acting at the behest of another........ ........ ........ ........ ........ ........ ........ ......	[160]
Breach of the requirements of natural justice........ ........ ........ ........ ..	[164]
The exercise of power by the Commission was so unreasonable that no reasonable decision maker could have exercised the power in that way........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[168]
The decision was otherwise contrary to law........ ........ ........ ........ .......	[173]
Application to reopen........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[175]
Abuse of process........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[217]
INTRODUCTION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[228]

INTRODUCTION

1. This judgment deals with paragraph 1 of a notice of motion filed on 23 June 2009 by the second respondent, the Commonwealth of Australia (the Commonwealth), seeking orders that an application for review filed by the applicants, Ralph and Sophie Scott, be summarily dismissed.

2. The application for review concerns a decision of the first respondent, the Human Rights and Equal Opportunity Commission, made on 22 September 2008.  Since 5 August 2009, it has been known as the Australian Human Rights Commission (the Commission).  The Commission decided not to inquire into a complaint made by Mr and Mrs Scott, which complaint alleged breaches of their human rights under the Human Rights and Equal Opportunity Commission Act 1986 (Cth). That Act has, since 5 August 2009, been known as the Australian Human Rights Commission Act 1986 (Cth) (the Australian Human Rights Commission Act). Mr and Mrs Scott have not been legally represented in these or any of the previous related proceedings. They were given a number of opportunities to amend their application in order to raise grounds which were legally comprehensible. The final amended application, filed on 27 April 2010, seeks orders that the decision of the Commission be set aside. It also seeks orders that judgments in three previous proceedings brought by Mr and Mrs Scott be set aside and that those proceedings be reopened. The application for review also seeks declarations that certain conduct of the Commonwealth was tortious, and for an order that the Commonwealth pay compensation for that conduct to Mr and Mrs Scott.

3. The Commonwealth argues, first, that the proceeding should be dismissed because Mr and Mrs Scott have no reasonable prospect of successfully prosecuting the application. This claim is brought under s 31A(2) of the Federal Court of Australia Act 1976 (Cth). Second, the Commonwealth argues that the proceeding should be dismissed because it is an abuse of process, primarily because it seeks to relitigate the dispute which has already been determined against Mr and Mrs Scott. It seems that this claim is brought under O 20 r 5(1)(b) of the Federal Court Rules which allows the Court to dismiss a proceeding if it is an abuse of process.

4. Something should be said about how the first argument relied upon by the Commonwealth evolved. The notice of motion sought orders under O 20 r 5 on the basis that the proceeding was frivolous and vexatious. When counsel came to prepare written submissions and argue the case for the Commonwealth, he contended that the proceeding was foredoomed to fail, was therefore an abuse of process, and should be dismissed for this reason. No reference to abuse of process is to be found in the notice of motion. No specific reference is to be found in the notice of motion to O 20 r 5(1)(b) which gives the Court the power to dismiss a proceeding as an abuse of process. However, as the written and oral submissions made it clear that the Commonwealth relies on this ground, no injustice results from the Commonwealth’s failure to properly state the basis of its application in the notice of motion. After judgment was reserved it occurred to the Court that the proper legal basis for the argument relied upon by the Commonwealth might be s 31A(2) of the Federal Court of Australia Act. This section allows the Court to dismiss a proceeding if satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding. It provides a less stringent test for summary dismissal than is provided for summary dismissal under the Federal Court Rules. The section was introduced and operative from 1 December 2005. It therefore applies to this proceeding which was filed in 2008. The Court drew the attention of the Commonwealth to s 31A in a letter dated 17 September 2010 which was copied to Mr and Mrs Scott. In its response dated 19 October 2010, the Commonwealth indicated that it relies on the section. Mr and Mrs Scott also responded but took no objection to reliance on this alternative legal ground. For that reason I have considered whether the proceeding should be dismissed on the basis that Mr and Mrs Scott have no reasonable prospect of successfully prosecuting the application for review.

5. I have reached the conclusion that the proceedings should be dismissed because Mr and Mrs Scott have no reasonable prospect of successfully prosecuting the application for review, and also because the application is an abuse of process.  This judgment explains the reasons for those conclusions.

   THE FACTUAL CONTEXT

6. What follows is a summary of the essential facts necessary for an understanding of these reasons.  This application is one of several brought by Mr and Mrs Scott concerning their dispute about the payment of social security benefits to them.  The detailed circumstances of their dispute are recorded in a number of judgments which involved previous litigation including Scott v Secretary, Department of Social Security [1999] FCA 1774 (Heerey J), [2000] FCA 1241 (Beaumont, French & Finkelstein JJ) (Scott v Secretary, Department of Social Security) and Scott v Pedler[2003] FCA 650 (Gray ACJ), [2004] FCAFC 67 (Gyles, Conti & Allsop JJ) (Scott v Pedler).  Recourse to these accounts should be made for a fuller description of the events, and for more detail of the statutory provisions concerning eligibility for the various social security benefits in question.  A particularly comprehensive account of these matters can be found in Scott v Pedler per Gray ACJ at [1-26] and on appeal in the judgment of Conti J at [1-28].

7. Mr and Mrs Scott were born in Poland and came to Australia as refugees in 1986.

8. On 28 January 1993, Mrs Scott applied for a Disability Support Pension (DSP).  In order to qualify for this benefit it was necessary, inter alia, that a claimant had an impairment of 20% or more under the Impairment Table of the Social Security Act1991 (Cth) (the Social Security Act).

9. On 16 November 1993, the application was rejected by the Regional Manager of the Department of Social Security (the Department), Mr Stuart McLeod, on the basis that the Commonwealth Medical Officer, Dr Paulson, had assessed Mrs Scott as having a nil impairment.  This decision was referred for internal review to an authorised review officer, Mr Ian Peak. 

10. On 24 November 1993, Mr Peak notified Mrs Scott that the decision to reject her DSP application was correct.

11. At this time Mr Scott, who was permanently incapacitated, was receiving a DSP.  As a result Mrs Scott was receiving a partner allowance.  However, from 1 July 1995 this allowance was only available to claimants aged over 40.  Mrs Scott was 32.  Thus, on 30 June 1995, Mrs Scott applied for a Special Benefit (SB) which is available if no other benefit is applicable.

12. The application for SB was rejected by Ms Toni Pedler on the basis that the SB was only available if no other benefit was available and Mrs Scott had not tested her eligibility for other benefits.  This reason for rejection was detailed in a letter from Mr McLeod to Mrs Scott, dated 19 July 1995.

13. Ms Pedler’s decision was reviewed by Ms Julie Williams.  On 11 August 1995, Ms Williams also rejected the application for SB.  That decision was sent for internal review to Ms Roberta Chrystal, an authorised review officer. 

14. On 23 August 1995, Ms Chrystal allowed the application for SB as an interim measure on the condition that Mrs Scott commenced an appeal to the Social Security Appeals Tribunal (SSAT) against Mr Peak’s decision to reject her application for DSP on 24 November 1993.  As a result of Ms Chrystal’s decision, the SB was first paid to Mrs Scott on 1 September 1995, and back paid from 3 July 1995, the next business day following Mrs Scott’s application for SB and the cessation of her Partner Allowance payments on 30 June 1995.

15. On 25 September 1995, Mrs Scott lodged an application with the SSAT for review of Mr Peak’s decision to reject her application for DSP. 

16. On 8 January 1996, the SSAT affirmed the decision to reject the DSP claim on the basis that Mrs Scott had a nil impairment.  Mrs Scott then appealed to the Administrative Appeals Tribunal (AAT) against the decision of the SSAT.  On 9 September 1996, the AAT determined that Mrs Scott was entitled to DSP and that it be back paid from 28 January 1993.  This determination was made without a contest.  The Department agreed that the AAT should make the determination in favour of Mrs Scott. 

    THE COMPLAINT TO THE COMMISSION

17. The complaint by Mr and Mrs Scott to the Commission is contained in a letter dated 14 February 2008.  To this letter is attached a document containing 33 paragraphs entitled Facts of the Claim / Complaint, and to that document are attached about 150 pages of supporting material.  Finally, there is a further elaboration of the complaint in a letter dated 17 March 2008 from Mr and Mrs Scott to the Commission.

18. Much of the content of the letters of complaint are argumentative and will be considered when the arguments of the parties are addressed later in these reasons.

1. The core of the complaint is expressed in the letter dated 14 February 2008, thus:

   We are asking for investigation of the intention not to recognize physical impairment in 1993-1996, abuse of psychiatry in 1993-1996, deceit in 1993 and falsification of documents in 1993 re the alleged assessment of the CMO of 0% impairment, the intentional use of force of hunger from rejection of special benefit, hindering the appeal to the SSAT.

2. This cryptic summary of the essence of the complaint is significant because it represents Mr and Mrs Scott’s view about the matters which are of central concern to them.  Without this identification of the matters of concern, the Commission would have been left to identify the matters of concern from the large volume of material supplied by Mr and Mrs Scott.  It is therefore important to understand the meaning of the short summary used by Mr and Mrs Scott in the complaint. 

3. From the attached material is seems that “the intention not to recognise physical impairment in 1993-1996” is a criticism of Mr McLeod, Mr Peak, Ms Pedler, Ms Williams, and the SSAT for accepting the nil impairment assessment made by the Commonwealth Medical Officer rather than the medical evidence supplied by Mr and Mrs Scott which they said established that Mrs Scott had an impairment of well over 20%.

4. The reference to “the abuse of psychiatry in 1993-1996” appears to refer to Mr and Mrs Scott’s view that Ms Chrystal advised Mrs Scott to make a fresh application for DSP in August 1995 in order to force Mrs Scott to attend a psychiatric examination.  Ms Chrystal did encourage Mrs Scott to make a new application for DSP instead of SB.  She said that she believed that the only basis upon which Mrs Scott would qualify for DSP would be as a result of a psychiatric impairment, because there was no sufficient established physical impairment.  This complaint may also be directed to the SSAT which stated:

   … on the evidence available, the Tribunal concurs with the view that it is possible that many of the appellant’s symptoms are of psychological nature and that attending a psychiatrist may give a valid basis for disability support pension.

5. The observations of Ms Chrystal and the SSAT that psychiatric examination of Mrs Scott may establish a basis for granting DSP echoed the view contained in the report of Commonwealth Medical Officer, Dr Paulson, to the Department on 6 October 1993 regarding her medical assessment of Mrs Scott.  After outlining Mrs Scott’s medical history, the report stated:

   I am still unable to give a definitive recommendation regarding work capacity as, in my view, a specialist psychiatric opinion is essential to making a fully informed recommendation.  My final assessment of permanent impairment and combined value are also incomplete for the same reason.

6. The reference to “deceit in 1993 and falsification of documents in 1993 re the alleged assessment of the Commonwealth Medical Officer of 0% impairment” appears to relate to the form filled out by the Commonwealth Medical Officer, Dr Paulson, in 1993 following her examination of Mrs Scott in relation to the original claim for DSP. In essence Mr and Mrs Scott say many of the ailments which were reported by Mrs Scott’s doctors were not included in the record of the examination, and the form was not completed or signed as required by the Social Security Act.

7. The reference to “the intentional use of force of hunger from rejection of special benefit, hindering appeal to the SSAT”, seems to relate to a claim that between 30 June 1995 when Mrs Scott applied for SB and 1 September 1995 when it was paid, Mr and Mrs Scott had no means of support.  They claim that this was clear to the Department because the application showed that they had no resources.  Further, on 3 August 1995 they wrote to Mr McLeod, in part stating:

   At present Mrs Scott is being left without any means for living and without any possibilities of buying the vital medicines, and this is inhuman especially towards an ill person.

8. They complained that even after Ms Chrystal made her decision on 23 August 1995, the payment of SB was not made for a week.  It seems to be suggested that the denial of resources by the Department was aimed to cause starvation so that Mr and Mrs Scott would not pursue the appeal to the SSAT.

9. The letter of complaint dated 14 February 2008, also asserted that the Commonwealth acted in violation of Art 25(c) of the International Covenant on Civil and Political Rights (ICCPR).  That Article provides for a right:

   To have access, on general terms of equality, to public service in his country.

   Mr and Mrs Scott asked the Commission to consider the “guarantee” in Art 5(2) of the ICCPR which provides:

   There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.

10. They also complained that the judgment in Scott v Pedler, by holding that on the proper construction of the Social Security Act, Mr and Mrs Scott were not owed any common law duty of care, was inconsistent with Art 2(3)(a) of the ICCPR which specifies a duty:

    To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.

11. It seems that the Commission wrote to Mr and Mrs Scott on 5 March 2008.  That letter is not before the Court, but it elicited a response from Mr and Mrs Scott, dated 17 March 2008, which clarified the basis of their complaint, and also set out several pages of argument on the question of whether the subject matter of the complaint had already been concluded by the Courts or by the Commission. The argument that the subject matter of the complaint has not been dealt with by the Courts will be addressed later in these reasons.  For present purposes, the clarifications of the complaint need to be noted.  The first addition was contained in the highlighted words as follows:

    The breach of human rights by the Commonwealth and its agencies in regard to Mrs Scott’s Disability Support Pension (DSP) and related benefits by application of unreasonable restrictions and/or by the intention not to recognize physical impairment in 1993-1996, abuse of psychiatry in 1993-1996, deceit in 1993 and falsification of documents in 1993 about the alleged assessment of the CMO of 0% impairment under the Social Security Act 1991 (SSAct), the intentional use of force of hunger from rejection of special benefit, hindering the appeal to the Social Security Appeals Tribunal (SSAT).

12. The second addition was as follows:

    Please consider the breach of the right:

    -to freedom from torture or cruel, inhuman and/or degrading treatment;

    -to be treated fairly and equally;

    -to welfare assistance; and

    -to adequate food and shelter

    THE ROLE OF THE COMMISSION

    Inquiry into acts or practices contrary to human rights

13. The role of the Commission, in relation to the complaint lodged by Mr and Mrs Scott is prescribed by the Australian Human Rights Commission Act.

14. Section 11(1)(f) of the Australian Human Rights Commission Act provides that one of the functions of the Commission is:

    (f)       to inquire into any act or practice that may be inconsistent with or contrary to          any human right, and:

    (i)        where the Commission considers it appropriate to do so—to   endeavour, by conciliation, to effect a settlement of the matters that                   gave rise to the inquiry; and

    (ii)       where the Commission is of the opinion that the act or practice is               inconsistent with or contrary to any human right, and the   Commission has not considered it appropriate to endeavour to effect                a settlement of the matters that gave rise to the inquiry or has   endeavoured without success to effect such a settlement—to report to                   the Minister in relation to the inquiry;
      [emphasis added]

15. A number of the terms used in s 11(1)(f) are defined in s 3. The terms ‘act’ and ‘practice’ are defined, so far as is relevant to this proceeding, in identical terms as an act or practice “engaged in by or on behalf of the Commonwealth or an authority of the Commonwealth or under an enactment”. ‘Enactment’ includes a Commonwealth enactment. ‘Human rights’ means “the rights and freedoms recognised in the Covenant, declared by the Declarations or recognised or declared by any relevant international instrument. ‘Covenant’ means “the International Covenant on Civil and Political Rights, a copy of the English text of which is set out in Schedule 2, as that International Covenant applies in relation to Australia”. ‘Declaration’ includes “(c) the Declaration on the Rights of Disabled Persons proclaimed by the General Assembly of the United Nations on 9 December 1975, a copy of the English text of which is set out in Schedule 5” (DRDP).

16. The power of the Commission to inquire into acts or practices contrary to human rights is engaged by a person making a complaint to the Commission.  The Commission has a discretion to refuse to inquire into the acts or practices on defined grounds.  At the time of Mr and Mrs Scott’s complaint to the Commission, these matters were relevantly dealt with in s 20 (1) and (2) as follows:

    (1)      Subject to subsection (2), the Commission shall perform the functions         referred to in paragraph 11(1)(f) when:
              …
              (b)       a complaint is made in writing to the Commission alleging that an                act or practice is inconsistent with or contrary to any human right;

    (2)      The Commission may decide not to inquire into an act or practice, or, if   the Commission has commenced to inquire into an act or practice, may         decide  not to continue to inquire into the act or practice, if:

    …
              (c)       in a case where a complaint has been made to the Commission in                relation to the act or practice:

    (iii)      where some other remedy has been sought in relation to   the subject matter of the complaint—the Commission is   of the opinion that the subject matter of the complaint   has been adequately dealt with; or
              [emphasis added]

17. If the Commission finds after inquiry that an act or practice is contrary to human rights, s 29(2) provides that the Commission:

    (a)       shall serve notice in writing on the person setting out its findings and   the reasons for those findings;
              (b)       may include in the notice any recommendations by the Commission            for preventing a repetition of the act or a continuation of the practice;
              (c)       may include in the notice any recommendation by the Commission             for either or both of the following:

    (i)        the payment of compensation to, or in respect of, a person               who has suffered loss or damage as a result of the act or   practice;

    (ii)       the taking of other action to remedy or reduce loss or damage           suffered by a person as a result of the act or practice;

    (d)       shall include in any report to the Minister relating to the results of the                    inquiry particulars of any recommendations that it has made pursuant   to paragraph (b) or (c);
              (e)       shall state in that report whether, to the knowledge of the   Commission, the person has taken or is taking any action as a result             of the findings, and recommendations (if any), of the Commission   and, if the person has taken or is taking any such action, the nature of   that action; and
              (f)       shall serve a copy of that report on the person and, if a complaint was                   made to the Commission in relation to the act or practice:

    (i)        where the complaint was made by a person affected by the              act or practice—shall serve a copy of that report on the   complainant; or

    (ii)       if the complaint was made by another person—may serve a             copy of  that report on the complainant.

    Inquiry into unlawful discrimination

18. The Commission also has the function to inquire into and attempt to conciliate complaints of unlawful discrimination (s 11(1)(aa)).

19. Unlawful discrimination includes any acts, omissions or practices that are unlawful under Part II or Part IIA of the Racial Discrimination Act 1975 (Cth).

20. Section 9 of the Racial Discrimination Act, which is found in Part II of the Act, relevantly provides:

    (1)It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

    (1A)     Where:
              (a)       a person requires another person to comply with a term, condition or   requirement which is not reasonable having regard to the   circumstances of the case; and
              (b)       the other person does not or cannot comply with the term, condition            or requirement; and
              (c)       the requirement to comply has the purpose or effect of nullifying or            impairing the recognition, enjoyment or exercise, on an equal   footing, by persons of the same race, colour, descent or national or                ethnic origin as the other person, of any human right or fundamental              freedom in the political, economic, social, cultural or any other field   of public life;
              the act of requiring such compliance is to be treated, for the purposes of this           Part, as an act involving a distinction based on, or an act done by reason of,      the other person’s race, colour, descent or national or ethnic origin.

    (2)       A reference in this section to a human right or fundamental freedom in the              political, economic, social, cultural or any other field of public life includes              any right of a kind referred to in Article 5 of the Convention.

21. The Convention is defined in s 3(1) as:

    the International Convention on the Elimination of All Forms of Racial Discrimination that was opened for signature on 21 December 1965 and entered into force on 2 January 1969, being the Convention a copy of the English text of which is set out in the Schedule.

22. Article 5(e)(iv) of the Convention provides:

    In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

    …

    (e)       Economic, social and cultural rights, in particular:

    …

    (iv)      The right to public health, medical care, social security and social                services;

23. Part IIB of the Australian Human Rights Commission Act provides for redress for unlawful discrimination. A written complaint may be lodged with the Commission alleging unlawful discrimination (s 46P(1)). Section 46PD provides:

    If a complaint is made to the Commission under section 46P, the Commission must refer the complaint to the President.

24. Section 46PF(1) provided:

    If a complaint is referred to the President under section 46PD, the President must inquire into the complaint and attempt to conciliate the complaint.

    THE DECISION OF THE COMMISSION

25. In a letter dated 22 September 2008 from the Commission to Mr and Mrs Scott, Ms Karen Toohey, as delegate of the President of the Commission, advised that the Commission had decided not to inquire into their complaint under s 20(2)(c)(iii) of the Act and gave reasons for that decision.

26. In the letter Ms Toohey outlined the background to the complaint.  She said that Mr and Mrs Scott had made a previous complaint to the Commission on 28 August 2006.  The Commission determined not to inquire into that complaint.  Mr and Mrs Scott sought judicial review of that decision and the application was summarily dismissed by the Federal Magistrates Court (Scott v Human Rights and Equal Opportunity Commission [2007] FMCA 1642). Ms Toohey recorded that an application for leave to appeal was refused on 21 December 2007 by Kenny J: Scott v Human Rights and Equal Opportunity Commission [2007] FCA 2055 (Scott v HREOC).

27. Ms Toohey then addressed the complaint insofar as it was brought against the actions of various individual employees of the Commonwealth.  To the extent that the complaint was directed against them in their personal capacity she said that the complaint was misconceived because the Commission had power to inquire only into acts or practices which were defined as acts or practices by or on behalf of the Commonwealth, an authority of the Commonwealth or under an enactment. 

28. Next, Ms Toohey determined that the subject matter of this complaint “essentially relate to the same subject matter” as the previous complaint to the Commission.  This observation appears not to have been intended to have been determinative because the decision continued thus: 

    Notwithstanding this, I consider that the issues you complain about have been subject to comprehensive judicial consideration and have been adequately dealt with.

    I note that Mrs Scott appealed against the refusal of her application for a Disability Support Pension made in 1993.  As a result, Centrelink conceded the application and Mrs Scott became entitled to a Disability Support pension from 28 January 1993.  I also note that Mrs Scott’s application for a Special Benefit was backdated to 1 July 1995 and she was also paid arrears.  These matters were considered in the following decisions:

    -Scott v Secretary, Department of Social Security [1999] FCA 1774 (Heerey J);

    -Scott v Secretary, Department of Social Security [2000] FCA 1241 (Beaumont, French and Finkelstein JJ];

    -Scott & Anor v Secretary, Department of Social Security M112/00 (Callinan and Kirby JJ) (special leave refused);

    -Scott v Pedler [2003] FCA 650 (Gray ACJ);

    -Scott v Pedler [2004] FCAFC 67 (Gyles, Conti and Allsop JJ); and

    -Scott & Anor v Pedler & Ors M83 of 2004 (Hayne and Crennan JJ) (special leave refused).

    In addition, I note that various courts have considered the actions of the officers you complain about.  With respect to 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 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.”

    In relation to Mr Scott’s matter, Heerey J also held:

    “the Department 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.”

    I appreciate that you may not be satisfied with the various decisions made about your social security payments and related benefits.  However, these decisions were the subject of scrutiny by the Federal Magistrate Court, Federal Court of Australia and High Court.  These courts considered the issues you have complained about and the individuals you refer to in your complaint. 

    For these reasons, I have decided to decline your complaint under section 20(2)(c)(iii) of the HREOCA as I am of the opinion that the subject matter of the complaint has been adequately dealt with.

1. It is now necessary to examine the judgments relied upon by the Commission in order to consider whether Mr and Mrs Scott have any reasonable basis for challenging the Commission’s reliance on the judgments.

   JUDGMENTS RELIED UPON BY THE COMMISSION

   Scott v Secretary, Department of Social Security [1999] FCA 1774 (Heerey J)

2. This judgment dealt with two proceedings brought by Mr and Mrs Scott.  The first proceeding (VG666 of 1996) was a review of a decision of the AAT which affirmed the rejection by the SSAT of the grant of DSP to Mr Scott from 19 June 1995 to 5 October 1995. 

3. From 7 October 1991 Mr Scott had been receiving SB.  Until 1 January 1995, DSP was not payable unless the claimant had resided in Australia for 10 years.  On this basis Mr Scott did not qualify for DSP until the law changed from 1 January 1995.  From that date he did qualify because the residence requirement was lifted in respect of refugees.  On 19 June 1995 Mr Scott submitted a SB review form to the Department.  On 24 July 1995 the Department wrote to Mr Scott suggesting that he might be eligible for DSP, and attached a form for the purpose.  Mr Scott returned the form on 5 October 1995.  DSP was granted from that date.  Mr Scott argued that DSP should have been paid from 19 June 1995 because the SB review form amounted to a claim for DSP within the meaning of the Act.  Heerey J upheld this argument, set aside the decision of the AAT and ordered that DSP be paid to Mr Scott, backdated from 19 June 1995. 

4. The second proceeding (VG69 of 1997) was brought under s 39B of the Judiciary Act 1903 (Cth) against JR Handley, a senior member of the AAT, and against the Secretary of the Department. Mr Scott argued that he should have been notified by the Department of the change in the law which entitled him to be paid DSP from 1 January 1995. He said that he was wrongly deprived of that benefit from 1 January 1995 until the Department advised him to so apply on 24 July 1995. Mrs Scott argued that, as a further result, she was wrongly denied a wife’s pension for that period. Mrs Scott also complained of the failure of the Department to approve payment of SB to her for the period 1 July 1995 to 24 August 1995 until 2 September 1995. Mr and Mrs Scott sought declarations, mandatory orders granting them the benefits claimed, and damages, including aggravated and exemplary damages of not less than $500,000.

5. In relation to both Mr and Mrs Scott, it was contended that the Department owed a duty to take care for the welfare of Mr and Mrs Scott both under statute and at common law.  It was said that the Department intentionally failed to perform these duties in order to delay the grant of DSP to Mr Scott and to deny Mrs Scott the wife’s pension.  It was also alleged the Department recklessly or negligently misrepresented the appropriate payments due to Mr and Mrs Scott.  Then it was contended that the Department infringed the absolute rights of Mr and Mrs Scott, intentionally inflicted personal injury on them, and engaged in misfeasance in public office. 

6. Heerey J began the discussion of Mr Scott’s claim at [46] as follows:

   Before turning to the remainder of Mr Scott’s claim, I should state at the outset that the extravagant allegations of malice, bad faith and other intentional wrongdoing made by both Mr Scott and Mrs Scott in my opinion are baseless.  A number of Departmental officers gave evidence.  They were cross-examined quite skilfully and thoroughly by Mrs Scott.  I am quite satisfied that those officers, and other officers who dealt with Mr and Mrs Scott, carried out their duties conscientiously and in good faith.  Indeed, as will be seen in relation to Mrs Scott’s claim, in some respects Departmental officers gave her the benefit of the doubt. 

7. His Honour then held that the Social Security Act did not create a statutory duty sounding in damages, and that there was no common law duty of care owed by the Department to inform Mr and Mrs Scott of potential benefits under the Social Security Act. 

8. His Honour concluded the reasons relating to Mr Scott’s claim at [53] as follows:

   Thus, quite apart from the absence of any legally enforceable duties of the kind alleged by him, the evidence does not support the allegations of intentional, malicious and conspiratorial wrongdoing made in the statement of claim.  There is no basis for 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: Northern Territory v Mengel [1995] HCA 65; (1995) 185 CLR 307 at 345.

9. Then, Heerey J outlined the evidence relating to Mrs Scott’s claim including the lodgement of her DSP claim on 28 January 1993 and its rejection, the lodgement of the SB claims including the 30 June 1995 claim, its initial rejection by Ms Pedler, and the successful review by Ms Chrystal.  His Honour then outlined the evidence relating to the SSAT appeal in relation to the rejection of the 1993 DSP claim, the adverse SSAT decision on this appeal, and then the conceded successful appeal to the AAT. 

10. His Honour outlined the claims made by Mrs Scott.  She alleged that because Mr Scott made his DSP claim on 5 October 1995 and thereby missed the opportunity to be paid DSP from 1 January 1995, Mrs Scott missed the opportunity to be paid wife’s pension from 1 January 1995.  She said she was forced to apply for an alternative benefit, and that the Department wrongfully denied her either DSP or SB to which she was entitled.  Mrs Scott further alleged she was intentionally starved by these means to prevent her having the rejection of the 1993 DSP claim reversed by the SSAT.  At [77] his Honour records that Mrs Scott alleged that the grant of SB was intentionally delayed by the Department until 24 August 1995 and that Mr and Mrs Scott were:

    at that time intentionally ultra vires the Act and intentionally contrary to common law or otherwise intentionally unlawfully directly or indirectly denied by [the Department] the absolute rights namely

    (a)the right to a standard of living adequate for health and well-being of the applicants; and

    (b)the right to adequate nourishment and medicines for the preservation and structures of the applicants’ bodies; and

    (c)the right to security in the event of disability; and

    (d)the right to have the Applicants’ dignity respected; and

    (e)the right to have a decision reviewed by the competent higher authorities; and

    (f)the right to prepare a case for review by the competent higher authorities.

11. At [78] his Honour records Mr and Mrs Scott’s allegations that the Department:

    was at that time well aware of the Applicant’s economic situation and nevertheless disregarded the numerous pleas of [Mrs Scott] for the SB payment to eliminate the exceptional hardship and the suffered by the Applicants’ injury and humiliation therefore (but not exclusively therefore) [the Department] in the aggravated way

    (a)consciously and wilfully acted in excess of statutory power and otherwise unlawfully;

    (b)intentionally and contumeliously infringed the absolute rights of the Applicants;

    (c)intentionally and contumeliously refused to desist from the wrongful and injurious conduct;

    (d)wilfully caused the foreseeable harm to the Applicants;

    (e)intentionally and contumeliously engaged in conduct calculated by producing injury and suffering to the Applicants to compel [Mrs Scott] to resign from the absolute right to review.

12. In relation to Mrs Scott’s claim, his Honour reiterated that no duty of care sounding in damages was owed by the Department to Mrs Scott.  His Honour concluded:

    84In any case, 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.  I refer in particular to Ms Chrystal’s decision as to backdating of SB, and the decision to concede the AAT appeal.

    85The allegations of malicious, conspiratorial conduct are completely without foundation.  There was no misfeasance in public office.

13. For those reasons, Heerey J dismissed application VG69 of 1997.

    Scott v Secretary, Department of Social Security [2000] FCA 1241 (Beaumont, French and Finkelstein JJ]

14. This was an appeal brought by Mr and Mrs Scott against the orders made by Heerey J.  In a joint judgment Beaumont and French JJ commenced by saying at [10]:

    The appellants advanced many arguments in support of their appeal in their extensive written and oral submissions.  It would be impracticable to attempt to explore at length every one of their complaints.  In the circumstances, we propose to adopt the approach taken by other Full Courts in such situations and to confine our reasons to the issues raised that are both significant and consequential (see, e.g. Western Australia v Ward (2000) 170 ALR 159 at 177 – 178.

15. The joint judgment then examined the authorities concerning misfeasance in public office and concluded that the weight of authority is to the effect that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power.  They continued at [15]:

    In the present case, his Honour made findings of fact which contradicted the existence of any intention to cause harm.  Nor, on those findings, could it be demonstrated that any officer knowingly acted in excess of power, or was recklessly indifferent to the harm that was likely to ensue.  In our view, no basis for appellate interference with those findings has been made out, especially given the advantage his Honour had in seeing the officers give their evidence.

16. The joint judgment then addressed the cause of action for damages upon the case.  It stated that the only remnant of the principle in Beaudesert which survived after Northern Territory v Mengel [1995] HCA 65; (1995) 185 CLR 307 might be cases in which there is liability for harm caused by unlawful acts directed against a plaintiff. The joint judgment said at [16] that the primary judge:

    found that all officers who dealt with the appellants carried out their duties conscientiously and in good faith.  There was nothing in the evidence to suggest that any actions of the respondents were in any way directed against the appellants. [emphasis in original].

17. The joint judgment then agreed with the primary judge that the Social Security Act did not disclose an intention to confer a private right of action for breach of any of the provisions relied upon by Mr and Mrs Scott, especially given the mechanisms for review of decisions made by the Department provided in the Social Security Act. 

18. The joint judgment agreed with the primary judge that there was no common law duty of care to advise Mr and Mrs Scott of the benefits that might be potentially available to them under the Social Security Act. 

19. Finally, the joint judgement addressed the claim for damages for negligence for failure to process the claim for benefits with due expedition, and said that there was no basis for such a claim on the facts.  And, in any event, a claim for damages for alleged negligence of that kind is not sustainable.  Finkelstein J, the third member of the Court, agreed with the joint judgment save in respect of the question whether there existed a common law duty of care as alleged.  He did not accept that, on the facts in this case, the way in which the Department dealt with Mrs Scott’s claim for SB was in breach of any duty of care.  But, he said that a duty of care would exist both in the manner in which a claim is processed and for the failure to process a claim with due expedition.  This followed, he said, because it was reasonably foreseeable that a person who is wrongly deprived of a benefit to which they are entitled, or who endure unreasonable delay of receipt of a benefit, may suffer physical harm.

20. The Court unanimously dismissed the appeal. 

    Scott & Anor v Secretary, Department of Social Security M112/00 (Callinan and Kirby JJ)

21. On 10 August 2001 the High Court dismissed Mr and Mrs Scott’s application for special leave to appeal against the judgment of the Full Court.  On behalf of the Court, Kirby J said:

    even if, as Justice Finkelstein in the Full Court concluded, the respondent owed the applicants a duty of care as they allege, no breach of any such duty was established in this case.  The Full Court of the Federal Court was correct to so hold.  No other foundation is established to warrant a grant of special leave to appeal and special leave must therefore be refused.

    Scott v Pedler & Ors [2003] FCA 650 (Gray ACJ)

22. On 13 June 2001, Mr and Mrs Scott applied for injunctions, declarations and damages, both exemplary and aggravated, against Ms Pedler, Ms Williams and Ms Chrystal.  They challenged the failure to review a refusal to grant Mr Scott DSP, a failure to grant Mrs Scott SB and a failure to change the rate of SB paid to Mr Scott.

23. Gray ACJ, at [2] – [3], recounted the facts which were substantially those recorded in the previous proceedings. His Honour set out the claims made by Mr and Mrs Scott and the responses to those claims ([27] – [41]). Mr and Mrs Scott relied on a duty of care owed by the respondents to Mrs Scott under statute, common law, or otherwise to decide her claims with due expedition. The statement of claim was amended to raise issues against Mr Peak and Mr McLeod. It was alleged that they determined that Mrs Scott had no physical impairment even though they had no medical qualifications and had not examined Mrs Scott. Further, it alleged that they had disregarded her loss of physical functions, and had rejected professional medical opinions supplied by Mr and Mrs Scott. Mr and Mrs Scott alleged that the respondents knew or should have known that DSP was payable to her from 28 January 1993. They claimed the rejection of DSP was in breach of a statutory and common law duty of care and was unlawful. Similarly, the refusal to grant SB was said to be in breach of common law and statutory duties of care and was unlawful.

24. Then it was alleged that the respondents knew that Mrs Scott was entitled to DSP from 28 January 1993 and that she did not need to make a further claim in 1995.  It was alleged that the respondents wilfully acted against Mrs Scott by assessing her impairment at nil and by approving Mr Peak’s decision to that effect.  Mr and Mrs Scott alleged that their absolute rights had been infringed by the respondents refusing Mrs Scott SB in July and August 1995 and thereby denying Mr and Mrs Scott a livelihood.

25. They further alleged that the respondents were ‘wilfully … killing the applicants with starvation and was hindering the preparation of medical evidence by the applicants’ and forcing Mrs Scott, by starvation, to make a second claim for DSP which she did not want to do.

26. General, special, aggravated, and exemplary damages were claimed.  Exemplary damages were claimed because:

    *        the governmental officers committed and generally commit the wilful, outrageous, high-handed, reprehensible, oppressive, cruel and malicious acts in contumelious disregard of welfare and rights of the applicants and of other disabled claimants;

27. His Honour described the way in which Mr and Mrs Scott had raised the question of the inadequacy of the medical reports of medical practitioners to whom Mrs Scott had been referred by the Department.  He said at [36]:

    In their defence, the respondents pleaded that the available medical evidence supported the determination that Ms Scott did not have an impairment of 20 per cent or more as required under the Impairment Tables and referred to the examinations and reports of specified doctors as supporting this assessment.  This prompted the applicants, in their reply, to plead a number of allegations of a specific nature as to the content of the medical reports that Ms Scott had submitted, and had available to her, and as to the inadequacy of the examinations and reports of the medical practitioners to whom she had been referred by the DSS. 

28. His Honour first rejected Mr and Mrs Scott’s claim for injunctions or declarations for breaches of alleged duties to grant them DSP or SB.  The Act made the grant of benefits dependant on the satisfaction by the Secretary and provided three levels of review of the decisions made on the claims.  In these circumstances it was not intended that the Act could be bypassed by the Court making declarations or granting injunctions.  To overcome this problem Mr and Mrs Scott sought declarations and injunctions in a form unrelated to their specific circumstances.  His Honour held that such declarations were not declarations of right as no legal consequence would flow from them.  The Court would not make declarations to express general condemnation of a person’s conduct.  Further, the declarations sought had no foundation in law because they relied upon the existence of duties imposed or restrictions placed on the decision makers under the Social Security Act, which duties or restrictions his Honour held did not exist.  For instance, there was no restriction preventing officers of the DSS from requiring Mr and Mrs Scott to test their entitlement by applying for other benefits. 

29. His Honour then held that he was bound by the appeal judgment in Scott v Secretary, Department of Social Security [2000] FCA 1241 to hold that the Social Security Act did not confer on Mr and Mrs Scott a private right of action sounding in damages. The claim by Mr and Mrs Scott based on a breach of statutory duty failed for that reason. His Honour added that even if he were not bound by that judgment, he would hold that the claim would not succeed on the facts of this case.

30. His Honour next dealt with the claim based on a common law duty of care.  He said that he was bound by the majority judgment in Scott v Secretary, Department of Social Security [2000] FCA 1241 to hold that there was no general common law duty of care to advise Mr and Mrs Scott of the benefits which might be available under the Social Security Act or to deal with their application at or by any particular time or times. He determined to deal with the issue more fully because of the division of opinion in the Full Court in Scott v Secretary, Department of Social Security [2000] FCA 1241, because the majority judgment might not extend to duties of officers under the Social Security Act more generally, and it may be that an analysis of the Social Security Act needed to be undertaken separately in relation to each alleged duty of care as wider duties were pleaded in this case than in Scott v Secretary, Department of Social Security [2000] FCA 1241.

31. His Honour then said that the relationship between the officers of the Department and Mr and Mrs Scott as claimants for benefits under the Social Security Act were of such a nature as could give rise to a duty of care.  However, his Honour regarded the requirement under the Social Security Act that the decision maker be satisfied that benefits should be paid, and the provision of several levels of review of those decisions as fundamentally inconsistent with the notion that an unsuccessful claimant should be entitled to sue for damages for negligence.  His Honour thus rejected the claim based on a common law duty of care. 

32. His Honour went on to consider whether, if Mr and Mrs Scott were able to sue for a breach of duty, there had been any breach of duty. 

33. His Honour said that there was no absolute duty on the respondents to decide that Mrs Scott was entitled to DSP or SB.  There was no entitlement unless the Secretary of the Department or the delegate of the Secretary was satisfied that Mrs Scott fulfilled the necessary criteria.  Ms Pedler was not so satisfied.  Ms Chrystal was satisfied and consequently the SB was paid to Mrs Scott. 

1. Further, there was no absolute duty on the respondents to review the decisions of Mr McLeod or Mr Peak refusing to grant DSP to Mrs Scott.  The Social Security Act granted a power to review only where the Secretary or delegate was satisfied there was a reason to review the decision. 

2. Then, his Honour considered that, if there was a common law duty of care, it could only require the respondents to take reasonable care in the performance of their functions under the Social Security Act.  It was not an absolute duty.  His Honour found that each of the respondents acted reasonably in performance of their functions under the Social Security Act.  He also found that if there was a duty to deal with Mrs Scott’s claim for SB reasonably promptly, there was no breach of that duty.

3. His Honour next dealt with the causes of action involving intentional infliction of harm.  These were identified in the statement of claim as “the Beaudesert principle”, trespass, trespass on the case, misfeasance in public office, intentional infliction of personal injury, infringement of absolute rights and acting otherwise contrary to law and unlawfully.  His Honour said that there was no claim or evidence to support the causes of action in trespass whether to the person or to goods or land.  The Beaudesert principle was overruled in Northern Territory v Mengel [1995] HCA 65; (1995) 185 CLR 307 subject only to the qualification that there may be liability for harm caused by unlawful acts directed against an applicant. To the extent that this tort exists in Australia it requires an intention on the part of the alleged tortfeasor to injure. Mr and Mrs Scott could not succeed on this cause of action because his Honour found that no such intention existed on the part of any of the respondents. In the context of the discussion of the claims of intentional wrongdoing, his Honour again rejected the claim for infringement of absolute rights because he held that Mrs Scott had no absolute right under the Social Security Act to receive DSP or SB, or to have the decisions of Mr Peak or Mr McLeod relating to DSP reviewed. Further, there was no absolute right to have the decision on the claim for SB made within a particular time.

4. His Honour then considered the claim that the respondents engaged in misfeasance in public office.  His Honour relied upon the following statement of the elements of the tort summarised by Smith J in Tahche v Abboud [2002] VSC 42 [at 16-19]:

   The basic elements of the tort of misfeasance in a public office have been identified as:

   (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 had acted with the necessary intent;

   (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 proceeding 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.

5. In relation to Ms Pedler his Honour said at [82]:

   It is clearly established on the evidence that, in doing what she did, Ms Pedler had no improper motive at all. At all times, she was motivated by a desire to carry out her duties in a way that would assist Ms Scott to succeed in her claim for special benefit, if it turned out that Ms Scott was entitled to succeed. This was not an improper purpose. Ms Pedler certainly had no intent to cause injury to the applicants. She was entitled, and indeed obliged, to act on the footing that if Ms Scott were entitled to DSP, as she claimed to be, she would not be entitled to special benefit. Section 729 of the Social Security Act so provided. Because of Ms Scott’s expressed intention to press for the review of her adverse decision relating to DSP by the SSAT, and her delay in doing so, Ms Pedler was entitled to suggest that one way of facilitating the process of the special benefit claim was to test Ms Scott’s eligibility for DSP by a further application. Ms Pedler made the suggestion from the purest of motives. She did not knowingly exceed any power and did not act with reckless indifference as to the existence of any power. She acted honestly throughout.

6. In relation to Ms Williams, his Honour accepted that she had negative views about Mr and Mrs Scott but he found at [87]:

   It is one thing for Ms Williams to have held negative views, but quite another to say that she had an intention to inflict harm on the applicants.  I am satisfied that, in suggesting in the letter of 11 August 1995 that Ms Scott take up the option of applying again for DSP, Ms Williams was not endeavouring to harm the applicants.  I am satisfied that she honestly believed that a further application for DSP would enable Ms Scott to establish whether or not she was entitled to DSP.  Either this would have led to payments of DSP to Ms Scott, if she were entitled, or it would have led to payments of special benefit to her, because she would have satisfied the criterion that she be not entitled to any pension.  I am satisfied that Ms Williams’s motive was to assist Ms Scott to have the question of entitlements resolved, so that she could receive payments of whatever she was entitled to.

7. As to Ms Chrystal, his Honour said at [88]:

   The position of Ms Chrystal is relatively easy to determine.  She actually granted special benefit, on the basis that Ms Scott would expedite her application to the SSAT for review of the DSP decision.  She did not herself approve the DSP decision.  In so far as she delayed beyond the time laid down in the timeline guidelines, she did so because the case was an unusual one and required careful consideration.  There can be no question of any improper motive, ulterior purpose, or intention to injure on the part of Ms Chrystal.  She approached the performance of her statutory function honestly.

8. His Honour concluded at [89] – [90]:

   89I am satisfied that none of the respondents had the purpose of preventing Ms Scott from succeeding in her claim for DSP, by depriving her of the time she needed to gather more medical evidence as to her condition, as the applicants alleged.  I am also satisfied that, if the respondents or any of them suggested to Ms Scott that she should undergo psychiatric assessment with respect to her claim for DSP, they did not thereby intend that Ms Scott should be labelled as having a psychiatric disease or condition.

   90Although each of the respondents held a public office, there was no invalid exercise of power or purported exercise of power.  There was no absence of power for anything any of the respondents did and no want of procedural fairness.  None of the respondents acted for an improper purpose or took into account irrelevant or unreasonable considerations.  There was no ulterior motive of intent to cause injury to the applicants.  If there was an absence of power to do anything, none of the respondents had knowledge of that or proceeded with reckless indifference as to the existence of the power.  For these reasons, the claims for misfeasance in a public office must fail.

9. Thus, his Honour rejected all of the claims of Mr and Mrs Scott based on the allegation of intentional infliction of harm. 

10. Although his Honour reached conclusions adverse to Mr and Mrs Scott to this point which meant that their application would be dismissed, his Honour gave consideration to the heads of damages claimed. 

11. Mr and Mrs Scott claimed general damages because they said that, through starvation, they suffered physical injury, deterioration of existing medical conditions, diminution of existing physical capacity, shortened life expectation, pain and suffering and emotional distress.  His Honour said that there was no independent medical evidence concerning the effect on the health of Mr and Mrs Scott of their circumstances.  Without such evidence his Honour was unable to arrive at a figure for general damages. 

12. The other consideration concerning damages which may be relevant to the present matter related to the claim for aggravated and exemplary damages.  His Honour said at [97]:

    In the present case, even if the applicants had been able to succeed on any of the causes of action on which they relied, it is highly unlikely that they would have succeeded in establishing that any wrongful act by any of the respondents was aggravated by the manner in which it was done, or that the respondents were deserving of punishment on the ground of moral retribution or deterrence.  Far from acting in a high-handed fashion, the respondents acted from the best of motives, in an attempt to assist Ms Scott to establish an entitlement to be paid either DSP or special benefit.  If they did err, it could only have been in some technical way, meriting neither additional compensation to the applicants nor condemnation of the respondents.

13. His Honour then dismissed the application and ordered Mr and Mrs Scott to pay the costs of the application.  He explained his approach to the question of costs at [99] as follows:

    … The ordinary rule is that costs follow the event.  No occasion exists for departing from that rule in the present case.  It would have been open to the applicants to have raised in the earlier proceeding before Heerey J all of the matters they raised in the present proceeding, and to have added as respondents to that proceeding the respondents they have sued in this.  Instead, having failed before Heerey J, and on appeal, and on an application for special leave to appeal to the High Court, the applicants chose to start again with different respondents, and to attempt to broaden the issues and to differentiate them from those that were the subject of the earlier proceeding.  They cannot contend that they have done so in any real sense in the public interest.  The declaratory and injunctive relief they sought amounted to nothing more than attempts to restate what they contended to be the obligations of the respondents under the Social Security Act.  I recognise that it is the case that the applicants are without significant resources.  They are social security recipients and they are unwell.  Poverty is not necessarily a ground for refraining from making an order for costs.  In my view, it would be wrong to allow the applicants to think that they can persist in invoking the processes of the Court unsuccessfully and not be held responsible, at least to the extent of incurring debts for the costs of those whom they have chosen to sue.

    Scott v Pedler [2004] FCAFC 67 (Gyles, Conti and Allsop JJ)

14. Mr and Mrs Scott appealed against the orders made by Gray ACJ.  The appeal was dismissed.  Conti J (with whom Gyles and Allsop JJ agreed) set out three essential reasons for dismissing the appeal.  First, the previous Full Court in Scott v Secretary, Department of Social Security [2000] FCA 1241 was authority for the view that the Social Security Act did not evince an intention to confer a private right of action for breach of statutory duty. He explained that the authority of the judgment was not overcome in this case:

    by resort to subsequent legal action framed against the three officers of the DSS in person as respondents, in lieu of the Secretary of the Department (the respondent of course to the previous unsuccessful Scott litigation).  The Secretary alone is designated by ss 207 and 208 of the Act effectively as the decision-maker in respect of social security claims.  

15. Second, the majority in Scott v Secretary, Department of Social Security [2000] FCA 1241 determined that there is no common law duty of care which required the Department to inform Mr and Mrs Scott of the potential benefits available to them under the Social Security Act.

16. Third, the following findings of fact made by Gray ACJ were decisive against Mr and Mrs Scott’s success on the appeal: 

    (i)the reasonableness of the conduct of each of the respondents in the performance of their respective roles or functions as officers of the DSS in addressing Mrs Scott’s claims (and also the claim of Mr Scott) for social security benefits (see [66] –[68] above);

    (ii)the absence of intent on the part of each of the respondents to harm Mr and Mrs Scott by an unlawful act, it being irrelevant that the act may have been beyond power (see [71] above);

    (iii)the absence of any conduct constituting misfeasance in public office on the part of Ms Pedler, and on the contrary, the undertaking of her duties in relation to Mr and Mrs Scott with honesty and without intention to injure and without reckless indifference to the exercise of power (see [72] - [74] above);

    (iv)the absence of misfeasance in office on the part of Ms Williams, including any committal of deliberate falsehoods, or any harbouring of improper or ulterior purposes or of any intention on her part to injure or harm Mrs Scott, but on the contrary, the existence of a motivation of Ms Williams to assist Mrs Scott in the resolution of her social security entitlements (see [73] and [75]-[76] above);

    (v)the absence of any misfeasance in office on the part of Ms Chrystal, including carelessness, improper motive or ulterior purpose on the part of Ms Chrystal, and the absence of any intention on her part to injure Mrs Scott, and of any performance of her statutory functions other than honestly (see [72] and [77] above);

    (vi)as to each of the respondents, the absence on their part of any purpose of preventing Mrs Scott from succeeding in her claim for the DSP, and in particular by way of depriving her of the time Mrs Scott needed to gather more medical evidence, and the absence also of any invalid exercise or purported exercise of any powers, or of any want of procedural fairness in exercising any powers, or of acting in relation to Mr and Mrs Scott for any improper purpose (see [78] – [79] above); and

    (vii)further as to each of the respondents, the absence of any conduct undertaken for an improper purpose, or which took into account irrelevant or unreasonable considerations, or which evinced any ulterior motive or intent to cause injury; moreover the absence of any knowledge of, or reckless indifference, to the doing of any act or undertaking of any course of conduct if, contrary to his Honour’s findings, any of the respondents did have knowledge of any absence of power, or else exercised any power with reckless indifference (see again [79] above).  

17. Gyles J at [2] to [5] added:

    2The reasons of Gray ACJ and Conti J each demonstrate that this proceeding was effectively doomed to failure by the decision in Scott v Secretary, Department of Social Security [2000] FCA 1241, 65 ALD 79. Indeed, the present proceeding is in substance, if not in form, an abuse of the process of the Court which has needlessly vexed the individual respondents over a long period. As remarked by Gray ACJ in his judgment at [99]:

    ‘It would have been open to the applicants to have raised in the earlier proceeding before Heerey J all of the matters they raised in the present proceeding, and to have added as respondents to that proceeding the respondents they have sued in this.  Instead, having failed before Heerey J, and on appeal, and on an application for special leave to appeal to the High Court, the applicants chose to start again with different respondents, and to attempt to broaden the issues and to differentiate them from those that were the subject of the earlier proceeding.’

    3Besides the personal strain occasioned to the individuals is the distraction from duty of those individuals and the direct costs to the Department of participation in a series of hearings.  The initial hearing of the case against the Department before Heerey J extended over four days, the appeal to the Full Court two days and the special leave application a further day.  Naturally, counsel was briefed on all occasions, with senior and junior counsel briefed to oppose the grant of special leave.  The present case extended over seven days at first instance and two days on appeal, with counsel briefed on each occasion.

    4That account also gives some idea of the resources of the Court which have been engaged in disposing of these cases, to which must be added interlocutory processes, preparation for hearing and judgment writing.

    5This case is a good illustration of the havoc which can be wreaked by determined and resourceful but impecunious litigants with a sense of grievance.  Orders for costs are no deterrent.

    Scott v Pedler M83 of 2004 (Hayne & Crennan JJ)

18. Mr and Mrs Scott sought special leave in the High Court to appeal against the orders of the Full Court.  The application was dismissed on 14 December 2005 by Hayne and Crennan JJ.  They held that there was no reason to doubt the correctness of the judgment of the Full Court. 

    THE PREVIOUS COMPLAINT TO THE COMMISSION AND THE PROCEEDINGS WHICH FOLLOWED

19. In order to understand part of the Commonwealth’s submissions relevant to this judgment, it is necessary to complete the picture of the litigation brought by Mr and Mrs Scott. 

20. On 29 May 2006, Mr and Mrs Scott made a complaint to the Commission that judgments of the High Court and the Federal Court, and actions of Centrelink, violated their human rights as set out in the ICCPR, the DRDP and the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. The Commission refused to inquire into this complaint. In relation to the complaints against the Courts, the Commission said that the complaint was misconceived within the terms of s 20(2)(c)(ii) of the Australian Human Rights Commission Act because the Commission had no authority to inquire into the activities of courts. In relation to the complaint against Centrelink, the Commission said that the matters had been adequately dealt within the terms of s 20(2)(c)(iii) of the Australian Human Rights Commission Act in the two proceedings commenced in the Federal Court.

21. Mr and Mrs Scott then applied to the Federal Court for an order for review of the decision of the Commission. On 4 December 2006, Sundberg J transferred the application to the Federal Magistrates Court. In that application Mr and Mrs Scott relied on almost all of the grounds of review in s 5(2) of the ADJR Act, and also said that the Commission decision denied them an effective remedy contrary to the requirements of Art 2(3)(a) and (b) of the ICCPR.

22. On 2 March 2006, the Commonwealth applied for summary dismissal of the application brought by Mr and Mrs Scott.  This application was successful and on 18 October 2007, the Federal Magistrate dismissed the application for review brought by Mr and Mrs Scott.  The Federal Magistrate said at [29] – [30]: 

    29.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.

    30.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 referred 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.

1. Mr and Mrs Scott rely on this view to argue that the Courts in Scott v Secretary, Department of Social Security, Scott v Pedler and Scott v HREOC misapprehended the facts and the law and consequently the judgments in each of those cases should be set aside and the cases be reopened.

2. Order 35 r 7 of the Federal Court Rules regulates the power of this Court to set aside judgments and orders.  It provides: 

   (1)      The Court may vary or set aside a judgment or order before it has been        entered.

   (2)      The Court may vary or set aside a judgment or order after the order has been          entered where:

   (a)      the order has been made in the absence of a party, whether or not the          absent party is in default of appearance or otherwise in default and whether or not the absent party had notice of the motion for the         order;

   (b)the order was obtained by fraud;

   (c)the order is interlocutory;

   (d)the order is an injunction or for the appointment of a receiver;

   (e)the order does not reflect the intention of the Court; or

   (f)the party in whose favour the order was made consents.

   (3)A clerical mistake in a judgment or order, or an error arising in a judgment order from an accidental slip or omission, may at any time be corrected by the Court.

   (4)Subrule (2) shall not affect the power of the Court to vary or terminate the operation of an order by a supplementary order.

   [emphasis added]

3. Order 35 r 7(1) concerns judgments or orders which have not been entered: AB v Federal Commissioner of Taxation (1998) 157 ALR 510 at 515. It provides for a wide discretion which, however, must be exercised judicially. The approach articulated in Autodesk relates to the exercise of such a power.  That was a case in which the judgment had not yet been entered: Smith v New South Wales Bar Association (1992) 108 ALR 55 at 60.

4. A search of the Court files discloses that judgment has not been entered in Scott v HREOC.  Consequently, O 35 r 7(1) and the approach taken in Autodesk is applicable to that case. 

5. The Court files also show that the judgments have been entered in Scott v Secretary, Department of Social Security and Scott v Pedler both at first instance and on appeal.  That circumstance is governed by O 35 r 7(2) which sets out a series of defined circumstances in which the Court is empowered to set aside final orders. 

6. Mr and Mrs Scott rely on O 35 r 7(2)(e) but, as previously explained, this rule does not apply to any of the judgments in question.  However, Mr and Mrs Scott set out at length in written submissions many reasons why they regard each of the judgments as having been wrongly decided.  As Mr and Mrs Scott are not legally represented, it is necessary for the Court to ascertain whether there is any other power to reopen the judgments which would address the criticisms made by Mr and Mrs Scott of the judgments in the earlier cases. 

7. In Bailey v Marinoff (1971) 125 CLR 529 Barwick CJ said in relation to the power of the New South Wales Court of Appeal to reopen a final judgment:

   Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed.

8. Until the case of DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 (DJL), there had been no case in the High Court which turned on the power to reopen entered orders (DJL at [44]).

9. That case concerned a judgment of the Full Court of the Family Court.  An application was made to a differently constituted Full Court of the Family Court to set aside the judgment on the ground that, as a result of a High Court judgment in another case delivered shortly after the original Full Court judgment, that original judgment was wrong in law.  The Full Court of the Family Court, by a majority, dismissed the application to set aside the original judgment.  On appeal, the High Court considered whether the Full Court of the Family Court had power to reopen the original judgment.  The majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) held that the answer lay in the text of the governing statutes and any express or implied powers to be found in them.  In the case of the Full Court of the Family Court there was no such power. 

10. Kirby J thought that there was an implied power to reopen the original judgment.  He had long been an advocate of the existence of such a power:  Wentworth v Rogers (No 9) (187) 8 NSWLR 388 at 394-395; Haig v Minister Administering the National Parks and Wildlife Act 1974 (1994) 85 LGERA 143 at 152-154, 159, 160.

11. In DJL, Kirby J referred to Donkin v AGC (Advances) Ltd [1995] FCA 696 and Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543, both judgments of the Full Court of the Federal Court where the Courts were prepared to assume for the purposes of the appeals that such power existed but that the power was confined to exceptional cases. In the result, in both cases, orders to reopen were refused. Kirby J said in DJL at [106] of the implied power:

    It is confined to exceptional cases where a mistake has occurred which, unrepaired, would cause a serious injustice. The applicant bears a heavy burden to persuade a court that he or she did not occasion the mistake and has moved for relief with relevant expedition.

12. And at [128]:

    It will be remembered that the reopening of a perfected order is confined to truly exceptional cases. The applicant must have acted promptly and be without fault. To deny relief must effectively leave a serious injustice unrepaired. 

13. Kirby J agreed with the majority in the result because he did not regard the error in that case as resulting in ‘irreparable injustice’ (see [133]). 

14. Aside from O 35 r 7(2), the parties have not indicated any other power in the Federal Court to set aside a perfected order.  It is likely that the judgment on this point in DJL, applicable to the Family Court, would apply equally to the Federal Court.  The result would follow that this Court could not entertain the application by Mr and Mrs Scott to reopen Scott v Secretary, Department of Social Security and Scott v Pedler.  Furthermore, it is doubtful whether a single judge of this Court has power to set aside a judgment of the Full Court as Mr and Mrs Scott seek. 

15. Despite the conclusion that the Court does not have power to reopen Scott v Secretary, Department of Social Security and Scott v Pedler, except on the grounds stated in O 35 r 7(2), I intend to examine the arguments for reopening raised by Mr and Mrs Scott as if the view of Mason CJ in Autodesk relating to judgments which have not been entered applied to both of those cases as well as to Scott v HREOC.  This is to take an approach most favourable to Mr and Mrs Scott. 

16. The written submissions filed by Mr and Mrs Scott on 2 December 2009, 18 February 2010 and 28 July 2010 in support of the application to reopen are not always easy to understand.  What follows is an attempt to derive the major significant points which seem to emerge from those submissions.

17. Mr and Mrs Scott contend that the Courts were wrong to hold that there was no misfeasance in public office, no deceit, and no negligence on the part of the Commonwealth or its officers. 

18. In relation to misfeasance in public office, Mr and Mrs Scott contend that the Courts erred in failing to find that there were invalid exercises of power, and also that the respondents acted with the necessary intent.  Various examples of each situation are given.

19. Thus, Mr and Mrs Scott say that under the Social Security Act only medical practitioners can make an assessment of impairment.  The rejection of the claim, based on nil impairment, by Mr McLeod, Mr Peak, Ms Williams and Ms Chrystal, who were not medical practitioners, was an invalid exercise of power.  Mr and Mrs Scott say that these officers were at least recklessly indifferent to the absence of power.  Mr and Mrs Scott say that they suffered loss as a result, and hence misfeasance in public office was made out. 

20. Gray ACJ considered this very argument in Scott v Pedler: see [13], [17], [18], [33] [49] and [90].  In particular, after an analysis of the provisions of the Social Security Act as a whole, he held at [49]: 

    Section 116(1) of the Social Security Act empowered a delegate of the Secretary who was not a medical officer and had not medically examined a claimant for DSP to assess impairment.

21. Thus, this contention is an example of re-agitating arguments already considered by the Court referred to by Mason CJ in Autodesk and, hence, is not a justification for setting aside the judgments.  In each case the relevant judgments deal comprehensively with the claim of misfeasance in public office.  Whilst Mr and Mrs Scott reject the conclusion that the tort was not established, the judgments are not affected by any misapprehension of fact or law on the issue. 

22. Then, Mr and Mrs Scott say that the failure to find that the officers of the Commonwealth intended to cause them injury was against the evidence.  A number of instances are cited.  For example, Mr and Mrs Scott say that the Court should have found that when Ms Williams refused SB knowing that Mrs Scott was facing starvation and homelessness, Ms Williams intended to harm Mrs Scott by forcing her to make a second DSP claim.  In Scott v Pedler Gray ACJ said at [87]:

    … I am satisfied that, in suggesting in the letter of 11 August 1995 that Ms Scott take up the option of applying again for DSP, Ms Williams was not endeavouring to harm the applicants. I am satisfied that she honestly believed that a further application for DSP would enable Ms Scott to establish whether or not she was entitled to DSP. Either this would have led to payments of DSP to Ms Scott, if she were entitled, or it would have led to payments of special benefit to her, because she would have satisfied the criterion that she be not entitled to any pension. I am satisfied that Ms Williams's motive was to assist Ms Scott to have the question of entitlements resolved, so that she could receive payments of whatever she was entitled to.  

23. Similar findings were made in respect of Ms Pedler and Ms Chrystal.  Thus, this contention is an attempt to reargue the very case of the existence of the necessary intention of the officers of the Commonwealth to harm Mr and Mrs Scott which was rejected in the previous litigation.  Mr and Mrs Scott disagree with the conclusions reached but the judgments are not affected by any misapprehension of fact or law and no basis exists for setting aside the judgments based on this argument. 

24. Mr and Mrs Scott also say that Ms Pedler and Ms Williams rejected the application for SB on a mistaken view that it was not payable unless Mrs Scott had lodged a claim for DSP.  They argue that Ms Pedler and Ms Williams were reckless as to the existence of their power to refuse the claim.  The rejection was therefore for an improper reason and could not be a valid exercise of power.  Again, this matter was directly considered in Scott v Pedler.  Gray ACJ found that the evidence, including oral evidence of the officers, established that they did not intend to cause injury to Mrs Scott.  He held, that, as a matter of law, the officers were entitled, but not required, to ask Mrs Scott to apply for DSP.  In the absence of either the necessary intention or invalid exercise of power, misfeasance in public office was not made out.  Again, Mr and Mrs Scott seek to reargue a matter already determined against them on the law and the facts.  This provides no ground for setting aside the judgments.  They were not affected by any misapprehension of fact or law. 

25. A further ground raised by Mr and Mrs Scott is that despite the grant of SB on 23 August 1995, they were not paid the benefit until Friday 1 September 1995, and were not able to access the funds until Monday, 4 September 1995.  Centrelink intended by this delay to cause them injury and consequently was liable for misfeasance in public office, it was alleged.  In Scott v Pedler, Gray ACJ records the date of payment of SB (see [12]).  There is no reference to this particular argument having been put to the Court.  Nor is there any explanation from Mr and Mrs Scott why it was not put in any of the cases.  Mr and Mrs Scott are not entitled to have the judgment set aside if they ‘failed to present the argument in all its aspects’: Autodesk at [4] per Mason CJ. It was not for the Court to examine the evidence in minute detail in order to uncover every possible minor wrongdoing of the respondents. Mr and Mrs Scott were bound to explain the significant wrongs which they alleged had been done to them. They did not isolate this particular event at the time of the hearings. It thus provides no basis for setting aside the judgments in the previous cases.

26. In the same category is the claim now raised against the Commonwealth Medical Officer, Dr Paulson.  Mr and Mrs Scott say that the Commonwealth Medical Officer had evidence of Mrs Scott’s impairments from medical reports supplied by her but the Commonwealth Medical Officer failed in her duty to record those impairments in the medical report which had to be provided for the DSP application.  This conduct, it is said, was not an honest attempt to perform the statutory function and it was foreseeable that such conduct would cause damage to Mrs Scott.  Again, it was argued that the evidence therefore established misfeasance in public office and the Courts were wrong to have found otherwise.  But, again, there is no reference to this argument being put in any of the proceedings.  It is another attempt by Mr and Mrs Scott to utilise the statements of the law articulated by the judges in each of the cases and then to retrospectively fit the evidence as they see it into these formulations to raise a new way of putting the case on misfeasance in public office.  Mr and Mrs Scott have had numerous chances to put their case.  They cannot endlessly create new variations and re-litigate those variations.  They failed to present this variation at the various hearings.  The judgments cannot be set aside to provide further opportunities to agitate what is essentially the same case. 

27. Mr and Mrs Scott argue that they have a claim against Mr McLeod and Mr Peak in deceit.  They say that these two officers represented to them in decisions to refuse DSP that the Commonwealth Medical Officer had assessed Mrs Scott’s impairment at nil.  This, they say, was false.  The misrepresentation caused Mr and Mrs Scott to spend time and money seeking further medical opinions to support the claim for DSP and they were caused personal injury in the process.  Mr and Mrs Scott made a successful application to Gray ACJ in Scott v Pedler to join Mr McLeod and Mr Peak as respondents.  However, thereafter they took no further step against them.  Having chosen not to proceed against them they cannot now seek to set aside the judgments which determined the issues then before the Courts. 

28. Also, Mr and Mrs Scott say that the Commonwealth Medical Officer and Mr McLeod and Mr Peak, Ms Williams and Ms Chrystal were negligent in rejecting the claim of impairment of Mrs Scott.  Each of the Courts rejected the existence of a duty of care in the circumstances brought before the Courts by Mr and Mrs Scott.  This is another example of an issue which was directly determined in the litigation.  Reopening is not available ‘for the purpose of agitating arguments already considered by the Court’: Autodesk at [4] per Mason CJ

29. Mr and Mrs Scott contend that the judgments should be set aside on the ground that they were procured by fraud.  The contention seems to be that the Commonwealth tried to restrict the hearing in Scott v Secretary, Department of Social Security to the issue of damage resulting from the two month delay in payment of SB to Mrs Scott.  Mr and Mrs Scott say that they, in fact, raised the unfair continuous rejection of DSP as an issue in that proceeding.  They then suggest that the High Court was pressured by the Commonwealth into accepting the view that the continuous rejection of DSP was not an issue before Heerey J.  The argument proceeds that, following the conclusion of Scott v Secretary, Department of Social Security, a solicitor acting for the Commonwealth filed an affidavit in Scott v Pedler which deposed that the continuous rejection of DSP had been an issue in Scott vSecretary, Department of Social Security.

30. It is difficult to extract from this confusion any coherent argument.  The complaint is that the Commonwealth misled the High Court.  The Federal Court cannot grant relief in respect of conduct alleged to have misled the High Court.  But, in any event, the case articulated by Mr and Mrs Scott disproves itself.  They quote from the reasons of the High Court dismissing their application for special leave.  In the extract the High Court indicates that the issues in the case appear from, inter alia, the submissions both oral and written of the parties.  Then, Mr and Mrs Scott quote from the oral submissions made by them to the effect that they wanted the High Court to direct the Federal Court to hear not part of the matter but the entirety of the matter which was before the Federal Court.  In other words, their argument before the High Court was that Heerey J had failed to consider all the issues in their case.  The High Court understood that they made that submission.  At the highest, the complaint made by Mr and Mrs Scott is that the Commonwealth put an opposing submission to the High Court.  It is clear from their own argument that the High Court had both contentions before it and was not misled.  Mr and Mrs Scott do not establish that the High Court was misled by the Commonwealth, let alone that there was fraud by the Commonwealth.

31. I have attempted to address most of the submissions made by Mr and Mrs Scott in support of setting aside the previous judgments.  They have obviously devoted an enormous amount of time and energy to the minute dissection of the previous litigation.  Much of their argument focuses on the minutiae and leads to criticisms which do not lead to any significant ultimate outcome.  They have acquired an understanding of the law which they have applied to the facts as best as they can without legal representation.  Many of their arguments disclose intelligence and thoughtfulness.  But others demonstrate confusion and misunderstanding, usually fuelled by an absolute conviction that they have been badly wronged.  It is not practically possible to untangle every one of these arguments.  There is a limit to the judicial time which should be devoted to their cause.  Thus, I have adopted the approach taken by the Full Court in Scott v Secretary, Department of Social Security at [10].

32. Finally, it will be noticed that the application to set aside and reopen the previous litigation is made in the existing application for judicial review of the decision of the Commission.  Ordinarily such relief would be claimed in separate proceedings and would usually be made to the Court which gave the original judgment.  However, as the detail of the previous litigation was in issue in the application for judicial review, and as the Commonwealth raised no objection to the Court dealing with the arguments, it was convenient to deal with them, at least to the extent that a single judge has jurisdiction to do so.   

33. In the result, Mr and Mrs Scott have no reasonable prospect of prosecuting the application to reopen the previous litigation.

    Abuse of process

34. The Commonwealth argued a further alternative basis on which the proceeding should be dismissed, namely, that the proceeding is an abuse of process within the meaning of O 20 r 5(1)(b) of the Federal Court Rules.

1. The jurisdiction of the Court to dismiss a proceeding as an abuse of process is discussed by reference to the authorities by Giles J in State Bank of New South Wales v Alexander Stenhouse Ltd (1997) Australian Torts Reports 81 at 89 and by French J in Spalla v St George Motor Finance Ltd(No 6) [2004] FCA 1699. These discussions set out the applicable law. For present purposes it is sufficient to distil the following propositions relevant to the present case from those judgments:

   1.One form of abuse of process is the use of the process of a court to relitigate disputes which have already been decided by the court.

   2.An attempt to relitigate an issue or dispute which has been resolved in earlier litigation may constitute an abuse of process even though the earlier proceeding did not give rise to res judicata, issue estoppel or Anshun estoppel.

   3.There are public policy considerations which inform the exercise by the Court of the power to dismiss a proceeding as an abuse of process where the proceeding involves relitigation of a dispute already dealt with in an earlier proceeding.  Those considerations include:

   a.               the need for finality in litigation;

   b.               the need to avoid the waste of judicial resources;

   c.               the need to avoid vexing the respondent more than once for the same   reason; and

   d.               the need to maintain public confidence in, and respect for, the administration of justice.

   4.On the other hand, the power should be used sparingly so that freedom of access to the Courts is not unreasonably curtailed. 

   5.The Court must assess the extent of the oppression and unfairness to the respondent if the dispute is relitigated.

   6.Further, the Court must balance the justice to the applicant against the factors which constitute the alleged abuse of process.

   7.In the exercise of assessment and balancing it may be relevant to consider some or all of the following factors:

   a.The significance of the issue sought to be relitigated in the first proceeding, including whether it was an evidentiary or ultimate issue;

   b.               The opportunity available and taken to fully litigate the issue;

   c.               The terms and finality of the finding on the issue;

   d.The identity between the relevant issues in the first and subsequent proceedings; and

   e.The plea of fresh evidence including the nature and significance of the evidence and the reason why it was not part of the earlier proceeding.

2. The substantial edifice of litigation brought by Mr and Mrs Scott is built on two central events, namely, the rejection of Mrs Scott’s application for DSP in 1993, and the rejection of her application for SB in 1995.  Ultimately, both SB and DSP were granted to Mrs Scott.  She utilised the mechanisms available under the Social Security Act to test the validity of the rejections, and through these mechanisms, she was ultimately successful.  The litigation in the Courts has been concerned with the way in which Mr and Mrs Scott were treated in the course of that process by medical officers and decision makers employed by the Commonwealth.  Mrs Scott has had and taken advantage of the opportunity to ventilate her grievances over the refusal of DSP before departmental review officers, the SSAT, and the AAT, and over the refusal of SB before departmental review officers.  As Gray ACJ observed in Scott v Pedler, the statutory system provides an almost uniquely generous opportunity to review decisions made under the Social Security Act.  Nonetheless, following these reviews and hearings Mrs Scott took her case to a trial before Heerey J, on appeal to the Full Court, and then for special leave to appeal to the High Court.  After that she had a trial before Gray ACJ, an appeal to the Full Court, and then an application for special leave to appeal to the High Court.  Having failed in all these attempts she made a complaint to the Commission.  When it refused to inquire in to her complaint she instituted a judicial review in the Federal Magistrates Court which was summarily dismissed by Phipps FM.  Mrs Scott sought leave to appeal from that judgment, and leave to appeal was refused by Kenny J. 

3. Although the case was framed a little differently in each proceeding, the same dispute was litigated in each case.  Mr and Mrs Scott contended that they suffered injury as a result of the conduct of officers of the Commonwealth in the process of initial rejection of the applications for DSP and SB by Mrs Scott.  The proceedings considered the liability of the Commonwealth or its officers on a number of different legal bases including breach of statutory duty, breach of common law duty, misfeasance in public office, breach of absolute rights, other causes of action based on intentional infliction of injury, as well as claims for declaratory and injunctive relief based on allegations of the unlawful exercise of statutory power.  It is likely that each proceeding was framed slightly differently simply in order to allow Mr and Mrs Scott to argue that their current proceeding did not involve exactly the same considerations as the previous proceeding.  However, some claims, such as misfeasance in public office were directly repeated in more than one case.  The present proceeding, in substance, concerns the same dispute, even if, as to the entirety of the proceeding, it might not attract the operation of the principles of res judicata, issue estoppel or Anshun estoppel. 

4. In Scott v Human Rights and Equal Opportunity Commission Kenny J said at [19]:

   19The central difficulty for the applicants is that, for the most part, the underlying conduct about which they complain has already been the subject of comprehensive judicial consideration.  Although the applicants now formulate their claims before HREOC as violations of their human rights, there is no doubt that they continue to attack (though by another route) the conduct of Centrelink in refusing to grant Mrs Scott a Special Benefit.  In this Court and the High Court, Centrelink’s conduct regarding Mr and Mrs Scott has been the subject of the following decisions:

   •         Scott v Secretary, Department of Social Security [1999] FCA 1774 (Heerey J);
   •         Scott v Secretary, Department of Social Security [2000] FCA 1241 (Beaumont, French and Finkelstein JJ);
   •         Scott & Anor v Secretary, Department of Social Security M112/00 (Callinan           and Kirby JJ) (special leave refused);
   •         Scott v Pedler [2003] FCA 650 (Gray ACJ);
   •         Scott v Pedler [2004] FCAFC 67 (Gyles, Conti and Allsop JJ); and
   •         Scott & Anor v Pedler & Ors M83 of 2004 (Hayne and Crennan JJ) (special           leave refused).

5. This view is supported by the circumstance that Mr and Mrs Scott rely on a statement of facts in all of the proceedings which are couched in almost identical form. 

6. The outcomes of all of the proceedings, except the first proceeding brought by Mr Scott, have been adverse to Mr and Mrs Scott.  Importantly, the central allegations that officers of the Commonwealth deliberately acted to cause injury to Mr and Mrs Scott, or breached duties owed to Mr and Mrs Scott were rejected by Heerey J and Gray ACJ and upheld by six judges in two appeals.  In significant part these findings undermine the allegations made in the present proceedings.

7. The Commonwealth has had to defend itself against these claims in two trials, two Federal Court appeals, two special leave applications, a judicial review of the first Commission decision and an application for leave to appeal against the summary dismissal of that application.  On the appeal in Scott v Pedler, Gyles J said at [2] to [5]:

   2The reasons of Gray ACJ and Conti J each demonstrate that this proceeding was effectively doomed to failure by the decision in Scott v Secretary, Department of Social Security [2000] FCA 1241, 65 ALD 79. Indeed, the present proceeding is in substance, if not in form, an abuse of the process of the Court which has needlessly vexed the individual respondents over a long period. As remarked by Gray ACJ in his judgment at [99]:

   ‘It would have been open to the applicants to have raised in the earlier proceeding before Heerey J all of the matters they raised in the present proceeding, and to have added as respondents to that proceeding the respondents they have sued in this.  Instead, having failed before Heerey J, and on appeal, and on an application for special leave to appeal to the High Court, the applicants chose to start again with different respondents, and to attempt to broaden the issues and to differentiate them from those that were the subject of the earlier proceeding.’

   3Besides the personal strain occasioned to the individuals is the distraction from duty of those individuals and the direct costs to the Department of participation in a series of hearings.  The initial hearing of the case against the Department before Heerey J extended over four days, the appeal to the Full Court two days and the special leave application a further day.  Naturally, counsel was briefed on all occasions, with senior and junior counsel briefed to oppose the grant of special leave.  The present case extended over seven days at first instance and two days on appeal, with counsel briefed on each occasion.

   4That account also gives some idea of the resources of the Court which have been engaged in disposing of these cases, to which must be added interlocutory processes, preparation for hearing and judgment writing.

   5This case is a good illustration of the havoc which can be wreaked by determined and resourceful but impecunious litigants with a sense of grievance.  Orders for costs are no deterrent. 

8. An affidavit sworn by Lisa Kearney on 24 June 2009 deposes that the Commonwealth has incurred costs of $151,530.45 in respect of the proceeding in Scott v Secretary, Department of Social Security and Scott v Pedler, and $75,794.65 in respect of Scott v HREOC, a total of $227,325.10.  The only source of income which Mr and Mrs Scott have is their social security benefits.  Orders for payment of costs in each of these proceedings have been made against Mr and Mrs Scott, but it is unlikely that they will ever be able to satisfy those orders made against them.  Whilst litigants should not be denied the right to bring cases to vindicate their rights as a result of impecuniosity, the Court is bound to take account of the prejudice to the Commonwealth arising from these facts. 

9. In summary, then, Mr and Mrs Scott have had generous opportunities and have availed themselves of those opportunities to litigate the circumstances of the initial refusals of Mrs Scott’s application for DSP and SB.  The present proceeding in substance canvases many of the same issues.  Those issues of fact and law have been decided against them in previous litigation.  To the extent that new issues are raised, there is no reason why those issues should not have been raised before.  The extent of the past litigation has reached the point where it is an unjust burden on the Commonwealth.  In part this stems from the accumulated past unpaid costs orders made against Mr and Mrs Scott.  There is a public interest in the finality of litigation over the initial refusals of Mr and Mrs Scott’s application for DSP and SB and the circumstances which accompanied those refusals.  The administration of justice would be brought into disrepute if Mr and Mrs Scott were permitted to continue with this proceeding because it utilises the process of the Court as an instrument of injustice and oppression.  Furthermore, the point has been reached where any further consideration of the circumstances which have been considered in depth in past litigation constitute a waste of judicial resources.  The proceedings should be dismissed because they are an abuse of process. 

10. In view of this conclusion it is not necessary to consider the Commonwealth’s contention that the proceeding should be dismissed by application of the principles of res judicata, issue estoppel or Anshun estoppel.

    CONCLUSION

11. It follows from these reasons that the proceeding should be dismissed because Mr and Mrs Scott have no reasonable prospect of successfully prosecuting the application for review of the decision of the Commission which includes the application to set aside the judgments in Scott v Secretary, Department of Social Security, Scott v Pedler and Scott v HREOC and, also, because the proceeding is an abuse of process.

    In [2] and [3] of its notice of motion filed on 23 June 2009, the Commonwealth seeks orders under O 21 of the Federal Court Rules which relate to vexatious litigants.  It was agreed between the parties that the applications made in those paragraphs should be adjourned until after judgment is delivered on the question whether the proceeding should be dismissed.  Further directions will now be given in relation to [2] and [3] of the notice of motion.  

I certify that the preceding two hundred and twenty-eight (228) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:       2 December 2010