Scott v Pedler

Case [2003] FCA 650

FEDERAL COURT OF AUSTRALIA

Scott v Pedler [2003] FCA 650

ADMINISTRATIVE LAW – social security – decision against applicant for disability support pension later conceded to be wrong – application for special benefit in the meantime – ineligibility for disability support pension a requirement for special benefit – whether requirement to reconsider earlier decision – whether open to officer to request applicant to apply again for disability support pension, to test eligibility – whether obliged to grant special benefit – requirement for satisfaction as to criteria – whether causes of action for breaches of statutory duty, negligence, intentional injury and misfeasance in public office open – whether declaratory and injunctive relief sought available – nature of any duty – whether absolute duty – whether intention to cause injury – whether obligation to increase rate of special benefit when spouse no longer in receipt of pension or benefit

Social Security Act 1991 (Cth) ss 94, 106, 114, 116(1), 729, 740, 744, 746, 1239, 1296, 1138(1)
Administrative Appeals Tribunal Act 1975 (Cth) s 60(1)
Federal Court of Australia Act 1976 (Cth) s 21

Scott v Secretary, Department of Social Security [1999] FCA 1774 (1999) 57 ALD 627, discussed
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, applied
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11 (2000) 200 CLR 591, cited
Warramunda Village Inc v Pryde [2001] FCA 61 (2001) 105 FCR 437, applied
Scott v Secretary, Department of Social Security [2000] FCA 1241 (2000) 65 ALD 79, discussed
Byrne v Australian Airlines Ltd (1995) 185 CLR 410, considered
Cubillo v Commonwealth (No 2) [2000] FCA 1084 (2000) 103 FCR 1, referred to
X (Minors) v Bedfordshire County Council [1995] 2 AC 633, cited
Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225, cited
Pyrenees Shire Council v Day (1998) 192 CLR 330, cited
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59 (1999) 200 CLR 1, considered
Sullivan v Moody [2001] HCA 59 (2001) 207 CLR 562, considered
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 (2002) 194 ALR 337, considered
Beaudesert Shire Council v Smith (1996) 120 CLR 145, cited
Northern Territory v Mengel (1995) 185 CLR 307, followed
Sanders v Snell (1998) 196 CLR 329, considered
Tahche v Abboud [2002] VSC 42, followed
Gray v Motor Accident Commission (1998) 196 CLR 1, cited
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, applied

Fleming, The Law of Torts, 9th edn, Law Book Company, Sydney, 1998

RALPH SCOTT AND SOPHIE SCOTT v OFFICER TONI LEE-ANNE PEDLER, DEPARTMENT OF SOCIAL SECURITY, OFFICER JULIE A WILLIAMS, DEPARTMENT OF SOCIAL SECURITY AND AUTHORISED REVIEW OFFICER ROBERTA CHRYSTAL, DEPARTMENT OF SOCIAL SECURITY
V 652 of 2001

GRAY ACJ
27 JUNE 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 652 of 2001

BETWEEN:

RALPH SCOTT
FIRST…

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AGLC
Scott v Pedler [2003] FCA 650
Case
[2003] FCA 650
Decision Date

CaseChat Overview and Summary

Scott v Pedler involved a married couple who sought relief from three officers of the Department of Social Security, claiming a series of failures to review and grant various social security benefits. The applicants, who were social security recipients and unwell, sought declarations, injunctions, and damages, including aggravated and exemplary damages, based on alleged failures in the handling of their disability support pension, special benefit, and rate of special benefit claims. The applicants sought to rely on various causes of action, including negligence, misfeasance in public office, and intentional infliction of personal injury.

The court had to determine whether the applicants could rely on the allegations made in their statement of claim and whether the declaratory and injunctive relief sought amounted to anything more than attempts to restate their contentions about the respondents' obligations under the Social Security Act. The court found that there was no evidence to support the allegations made, and that the applicants had failed to raise these issues in earlier proceedings before another judge, an appeal, and an application for special leave to appeal to the High Court. Instead, they chose to start a new proceeding with different respondents and broaden the issues. The court held that the applicants could not contend that they had done so in any real sense in the public interest.

The court dismissed the application, stating that it would have been open to the applicants to raise the matters in the earlier proceeding and add the respondents as parties. However, they chose not to do so and instead started a new proceeding. The court recognised that the applicants were without significant resources but held that it would be wrong to allow them to persist in invoking the court's processes unsuccessfully without being held responsible for the costs of those they had chosen to sue. The court ordered that the application be dismissed and that the applicants pay the respondents' costs of the proceeding.

Orders

Orders of the court

1. The application be dismissed.

2. The applicants pay the respondents’ costs of the proceeding.

Background

Background to the litigation

The applicants in this proceeding are a married couple. By their application, filed on 13 June 2001, they sought relief by way of declarations, injunctions and damages, including aggravated and exemplary damages, as a result of certain decisions made, or the alleged failure to make certain decisions, within the Department of Social Security (“DSS”). In particular, the applicants claimed in respect of a failure to review a prior refusal to grant the second applicant a disability support pension (“DSP”), a failure to grant the second applicant special benefit and a failure to change the rate of special benefit paid to the first applicant. The three respondents are officers of DSS who were involved in dealings between DSS and the applicants. The applicants sought to rely on causes of action in negligence, the Beaudesert principle, trespass, trespass on the case, misfeasance in public office, intentional infliction of personal injury, infringement of rights and unlawful acts.The facts On 28 January 1993, the second applicant, Sophie Scott, lodged a claim for DSP, pursuant to s 94 of the Social Security Act 1991 (Cth) (“the Social Security Act”). On 30 August 1993, an officer of DSS made a decision rejecting the claim. Ms Scott sought internal review of that decision. By letter dated 16 November 1993, a regional manager of DSS, Stewart McLeod, informed Ms Scott that the reason formerly advanced for the rejection of her claim, that she had failed to attend an appointment arranged for her with a medical specialist, had been found to be incorrect, because the written request for her to attend the appointment did not cite the correct legislation. The letter went on to say:“Upon further consideration of your case, it has however been noted that the Commonwealth Medical Officer (CMO), while not finalising your medical assessment, has assessed your presenting physical conditions as having a nil impairment rating. This has been arrived at using all of the medical information that you have provided in support of your claim, your medical examination by the CMO and other specialists as requested by the CMO.Your claim for DSP is therefore rejected on medical grounds due to this nil impairment rating as determined by the CMO.”The letter also informed Ms Scott that Mr McLeod had referred her case directly to an Authorised Review Officer for review. By letter dated 24 November 1993, the Authorised Review Officer, Mr I Peak, notified Ms Scott that he had decided that the decision not to pay her DSP was correct. The letter expressed a finding by Mr Peak that Ms Scott’s impairment was nil under the Impairment Tables, whereas s 94 of the Social Security Act required that there be an impairment of 20 per cent or more under the Impairment Tables, in order that a person qualify for DSP. Ms Scott resolved to seek a review of the decision by the Social Security Appeals Tribunal (“the SSAT”). She did not make application immediately for such a review. Instead, she set about gathering further medical evidence to support the proposition that she had an impairment of more than 20 per cent under the Impairment Tables. She corresponded with a number of medical practitioners in various countries about her condition. She obtained a number of written reports from such practitioners, which she intended to place before the SSAT in support of her claim.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY ACJ
There was no evidence to support the allegations in par 30 of the statement of claim, quoted above. They were allegations of a kind of which judicial notice could not be taken, despite the opening words of the paragraph. If judicial notice could be taken of such things, I certainly do not have the knowledge of the facts that would enable me to take it. The allegations are not borne out by the evidence in this case.Conclusion The application must be dismissed. 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. For these reasons, the application must be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Established by: GRAY ACJ

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