Vatarescu v The Commonwealth of Australia for the Agency of Centrelink (No.2)
[2011] FMCA 376
•31 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VATARESCU v THE COMMONWEALTH OF AUSTRALIA FOR THE AGENCY OF CENTRELINK (NO.2) | [2011] FMCA 376 |
| ADMINISTRATIVE LAW – Cause of action changed from judicial review in previous proceedings to claim in negligence in current proceedings – legal remedy – summary judgment (principles of) – anshun estoppel – res judicata. |
| Federal Court of Australia Act 1976 (Cth), s.31A Federal Magistrates Act 1999 (Cth), s.17A(2), (3) Social Security Act 1991 (Cth), ss.601, 603, 603A, 604, 606, 606(1)(e), (ea) and (g), 606(3), 607A, 624(1)(a) |
| Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499 Apotex Pty Ltd v Les Laboratoires Servier (No 4) (2011) 89 IPR 274 |
| Applicant: | ANDREI VATARESCU |
| Respondent: | THE COMMONWEALTH OF AUSTRALIA FOR THE AGENCY OF CENTRELINK |
| File Number: | CAG 15 of 2010 |
| Judgment of: | Neville FM |
| Hearing date: | 30 November 2010 |
| Date of Last Submission: | 5 December 2010 |
| Delivered at: | Canberra |
| Delivered on: | 31 May 2011 |
REPRESENTATION
| Advocate for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr D. O’Donovan |
| Solicitors for the Respondent: | Ms T. Williams, Australian Government Solicitor, Canberra |
ORDERS
The Application filed on 24th March 2010 be dismissed pursuant to s17A(2) of the Federal Magistrates Act 1999.
The Applicant pay the costs of the Respondent, either as agreed or taxed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAG 15 of 2010
| ANDREI VATARESCU |
Applicant
And
| THE COMMONWEALTH OF AUSTRALIA FOR THE AGENCY OF CENTRELINK |
Respondent
REASONS FOR JUDGMENT
Introduction
Dr Vatarescu is a determined and, without intending any offence, an innovative litigant.
The background to the current application before the Court may be gleaned (a) from the details set out in an earlier judgment involving the same parties in which I summarily dismissed Dr Vatarescu’s application,[1] and (b) from the judgment of Stone J in which her Honour dismissed an application for leave to appeal against that summary dismissal order.[2]
[1] Vatarescu v Commonwealth of Australia for the Agency of Centrelink [2009] FMCA 1041. In that judgment, I also noted other attempts where Dr Vatarescu had sought relief in proceedings before the Administrative Appeals Tribunal in 2007 and 2009. Those same matters were also highlighted in the Respondent’s written submissions filed on 19 November 2010 (par.4).
[2] Vatarescu v Commonwealth of Australia for the Agency of Centrelink [2009] FCA 1539.
In my view, unfortunately, many of the comments made in both of those previous decisions remain applicable to the current proceedings. In particular, as with the 2009 proceedings before me, the current application is presented in terms that confirm a generalised complaint against the Respondent, Centrelink. However, whereas in the earlier application Dr Vatarescu sought relief in terms of judicial review, in the current matter he alleges a breach of duty on Centrelink’s part “for negligent implementation of relevant legislation.”[3] His complaints relate most particularly to his Centrelink entitlements being suspended for failing to comply with a Newstart Activity Agreement,[4] and the requirement that he attend a Job Network Member for a reasonable purpose that was notified to him pursuant to s.624(1)(a) of the Social Security Act 1991. Dr Vatarescu describes the suspension of his Centrelink entitlements as “penalties.”
[3] Par.2A of the Application for an Order of Review, filed 24th March 2010.
[4] A copy of the relevant Activity Agreement was before the Court, being part of Annexure O to Ms Williams’ affidavit, filed on 2nd June 2010, pp.117-119.
Dr Vatarescu contends that he is entitled to relief due to the following [alleged] negligence of Centrelink:[5]
(i) The Respondent acted negligently by failing to monitor the quality and content of services provided by the Job Network Member;
(ii) The Respondent acted negligently by failing to ensure the implementation of the relevant legislation and related terms of the activity test;
(iii) The Respondent refused to comply with the terms of the activity test after these were brought to their attention, particularly, in the letter dated 17 March 2009.
[5] Application for an Order of Review, par.2B, “Particulars of negligent implementation of relevant legislation.”
For reasons similar to those given in 2009 by me, and (respectfully) by her Honour in the leave to appeal decision, not least being the significant level of discretion to which Stone J referred,[6] as well as the unfortunately ill-defined nature of the Applicant’s claims and filed documents of needless complexity (but still opaque as to substance and detail), I have considerable difficulty seeing (a) what duty was owed by Centrelink to the Applicant, (b) what breach may have occurred in relation to any such duty, and in consequence, (c) what ‘damage’ has been suffered by Dr Vatarescu which he could recover from Centrelink. Certainly, there are no particulars of ‘damage’ other than
Dr Vatarescu’s generalised claim that “[h]ad the Respondent implemented the elements of the legislation stipulating a constructive service, the applicant’s commercialisation of a high-tech project would have reached an advanced stage.”[7]
[6] See Vatarescu v Commonwealth of Australia for the Agency of Centrelink [2009] FCA 1539 at [3]: “…the guidelines for the grant of the Newstart allowance are laid down under the Social Security Act but, as is clear, both from their title as “guidelines” and from the wording of the guidelines themselves, give the Minister, and through the Minister the delegate of the Minister, considerable discretion as to how they are to be implemented.”
[7] Dr Vatarescu’s affidavit, filed 24th March 2010, par.7.
The reasons that follow relate to the Respondent’s application to have
Dr Vatarescu’s current application summarily dismissed. In my view, it should be granted. The reasons proceed thus: (a) Dr Vatarescu’s application (including procedural history); (b) submissions; (c) discussion and conclusion.
Dr Vatarescu’s Application & Procedural History
Dr Vatarescu’s Application was filed on 24th March 2010. As set out in the Application, Dr Vatarescu contends that his cause of action arises as follows:[8]
[8] See par.2A of the Application.
Particular of cause of action for negligent implementation of relevant legislation:
(i) The Applicant signed an activity agreement on 28 January 2009;
(ii) The Applicant made repeated enquiries concerning non-implementation of the relevant legislation … and related terms of the activity test in the activity agreement …;
(iii) The Applicant filed an application for review in the Federal Magistrates Court after the Agency of Centrelink refused to respond to his enquiries;
(iv) Compensation should be awarded for losses incurred by the Applicant as a result of the Respondent’s failure to implement the relevant legislation….
Orders were made on 11th May 2010 that provided a time-table for the filing of a response. The matter was adjourned for to 17th August for further directions.
On 2nd June, the Respondent filed an Application in a Case, seeking orders for summary dismissal of Dr Vatarescu’s Application, pursuant to s.17A(2) of the Federal Magistrates Act 1999.
On 17th August, further orders were made, which provided for a time-table for the Applicant to seek, and the Respondent to provide, particulars and or documents. The time-table also provided for the filing of written submissions by 19th November. A hearing was fixed for 30th November 2010 in relation to the summary dismissal application.
As a result of various comments and queries made in the course of the hearing, the Court was subsequently provided with abbreviated written submissions to confirm which sections of the Social Security Act 1991, as they stood at the relevant time, applied to the matters before the Court. These submissions are considered later in these reasons.
As gleaned from Dr Vatarescu’s Application and supporting affidavit, filed on 24th March 2010, the Applicant says that the suspension of his Centrelink entitlements were not accompanied or supported by any “legal grounds”. As well, he contends, albeit somewhat implicitly, that Centrelink (or the Court) should explain to him ‘how the legislation operates without guidelines; what is the role of the guidelines [to facilitate, undermine, override, etc., the legislation; [and] why can the same guidelines be legally unenforceable on one party to the dispute but enforceable on the other party, at the same time?’[9]
[9] See par.4 of the Application, and par.5 of Dr Vatarescu’s affidavit, filed 24th March 2010.
It should be said here that it is not for the Court to provide what would be an advisory opinion, dependent as it would be, among other things, on a consideration and an examination of a number of assumptions implicit in the questions posed.
The Applicant also contended that the “Respondent’s refusal to explain their decisions is, in fact, a legal admission of their non-compliance with the relevant legislation and related terms reflected in the activity test and activity agreements stipulating an appropriate standard of service.”[10]
[10] Par.6 of the Application filed 24th March 2010.
I do not accept that the [alleged] failure or refusal by Centrelink to explain its decisions in relation to the Applicant constitutes a “legal admission of non-compliance with the relevant legislation.” It is best to consider this contention further in the context of the submissions made at the hearing. As necessary, I make occasional observation on various submissions.
Submissions
The Applicant’s Submissions: Dr Vatarescu filed multiple submissions in the current proceedings. They are (using the description on each document):
· Submission by Applicant (dated 11th May 2010): filed in Court 17th August 2010
· Submission by Applicant: filed in Court 17th August 2010
· Submission by Applicant for the 30th November 2010 hearing: filed 17th November 2010
· Evidence of non-compliance with the relevant legislation: filed in Court 30th November 2010
· Reply to the respondent’s submission of 19th November 2010
In addition to these submissions, Dr Vatarescu sent to the Court, via email, further notes in relation to various provisions of the Social Security Act. Those emails are dated, respectively, 3rd, 4th, and 5th December 2010.
Summarily stated, the Applicant’s submissions contended as follows.
The 11th May submissions argued that because of the “material facts and evidence established and proven by the Respondent” in the previous proceedings in 2009 in this Court, it was clearly established that the Respondent refused to produce an activity test because Centrelink did not implement the legislation. In my view, the causal or any other link claimed by the Applicant between what was said in the previous judgment of this Court to which I have referred and what is said to have been “clearly established and proven by the Respondent, cannot be supported. This is so essentially because the nature of the earlier proceedings was such that the Court was dealing with a summary dismissal application. That required the Court to make an assessment of the evidence put before it, and in the light of the matters “pleaded” in the Application and supporting documents, it came to a view that the contentions there made by the Applicant enjoyed insufficient prospects of success as to warrant being dismissed summarily. In those circumstances, in my view it would be most unsafe to rely upon evidence said to be accepted by the Court on that occasion. Perhaps it is another instance of the Applicant’s failure to understand, or at least to appreciate, matters of legal procedure as well as relevant distinctions between what is a legal ground of complaint and what is not. Such matters have been canvassed previously in my earlier, 2009, judgment, and briefly by Stone J, at [11] of her Honour’s December 2009 reasons.
The Applicant further submitted that this [alleged] refusal to produce an activity test was “a legal admission of their non-compliance with the relevant legislation.”
In the 17th August submissions, the Applicant contended that the Respondent had admitted to not having implemented an activity tests as required by the legislation. It was further contended that the “assessment questionnaire of the Job Network Member” was deficient because it did not provide any section for university graduates. Accordingly, so the Applicant submitted, he was deemed to be unqualified. And, in his view, this meant that the standards and criteria for the activity test, as prescribed in the legislation, were not met.
The 30th November submissions did a number of things. First, and rather disconcertingly in my view, the Applicant contended that her Honour, Stone J “ignored the question of non-implementation of the relevant legislation by the respondent….”. It is not appropriate to slight her Honour’s decision. Respectfully, Stone J dealt with the issues before the Court.
The same submissions commented on the conduct of the Respondent in the proceedings before the AAT, and on the Respondent’s inadequate (in Dr Vatarescu’s view) response to questions and comments which he had put to Centrelink.[11]
[11] Centrelink’s reply to the Applicant is an undated letter which is located at p.48 of Ms Williams’ affidavit.
Finally, in the principal submissions of 30th November, the Applicant repeated his claim regarding the “non-implementation of the relevant legislation … and related terms of the activity statement testing overview in the activity agreement.”
The Applicant contended that the Respondent acted negligently in failing (a) to monitor the quality and content of services by the Job Network Member, and (b) to ensure the implementation of the relevant legislation.
Helpfully, the Applicant set out in his submissions, and highlighted, relevant sections of the Social Security Act (“the Act”), and in particular, s.601 (the activity test), s.603 (relief from activity test – general), s.603A (relief from activity test – special circumstances), s.604 (Newstart Activity Agreements), s.606 (Newstart Activity agreements – terms), and s.607A (Newstart Activity Agreements – self-employment).
In short, the Applicant submitted that the Respondent failed to apply to his particular circumstances, or otherwise to comply with, ss.606(1)(e), (ea) and (g), and s.606(3) of the Act.[12] Accordingly, he submitted, the Respondent was in breach of the duty to implement those sections as they should apply to the Applicant.
[12] Each of those sections is highlighted at p.6 of the Applicant’s submissions.
The Applicant also contended that the Respondent “has perverted the course of justice by misleading the court about the mechanism for the implementation of the relevant legislation by producing a letter of reply which made unsubstantiated statements detrimental to the applicant.”[13] Apart from noting the gravity of the contention regarding [alleged] misleading of the Court, I do not propose commenting further on this aspect of the submission.
[13] See p.11 of the Applicant’s submissions, filed 17 November 2010.
In his supplementary submissions (“Evidence of non-compliance with the relevant legislation”) filed in Court on 30th November, the Applicant again referred to those sections of the Act that he said were not complied with by the Respondent, and repeated his contention that the assessment questionnaire did not include a section for university graduates.
On this basis, he contended that this Court’s earlier decision (in CAG 15 of 2009), and by implication the decision of Stone J dismissing his leave to appeal application, “should be set aside as the applicant was penalised illegally.”
The Applicant’s final, written submissions (formally in reply to the written submissions of the Respondent), in my view, simply repeats earlier submissions regarding (a) the [alleged] non-implementation of the Act, (b) the deficiencies of this Court’s earlier decision, and (c) the Respondent’s [alleged] repeated failure to respond adequately to the Applicant’s various contentions.
The Respondent’s Submissions: In the first instance, the Respondent (in my view, not unfairly) protests about the difficulty in comprehending the nature of and basis for the Applicant’s claim.
Secondly, the Respondent also contends that the Applicant’s “subjective dissatisfaction [with the implementation of the Activity Agreement] … does not translate into a cause of action in negligence.”
Thirdly, the Respondent also submits, without going into detailed argument, that the similarity of the current claim to that which was determined adversely to the Applicant by this Court in 2009, would (or should, if pressed) result in the Applicant being faced with further submissions, based on the principles of res judicata and or Anshun estoppel, which would prevent the matter proceeding in any event.[14]
[14] In relation to the estoppel point, see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. This decision of the High Court held that a party may be estopped from raising in later litigation an issue that could have been, but was not, raised in earlier proceedings. In relation to res judicata, among many places, see the judgment of Fullager J in Jackson v Goldsmith (1950) 81 CLR 446 at p.466.
The Applicant described these submissions as a “legal tantrum.”[15]
[15] See the Applicant’s “Reply to the respondent’s submission of 19 November 2010”, par.11.
In the email correspondence to which I have earlier referred, the Respondent submitted that ss.601, 603, 606 and 607A of the Act, at the time the Applicant entered the Activity Agreement, were significantly different to the version of those sections as provided by the Applicant in his submissions.
As well, the Respondent confirmed that s.604 of the Act, as set out on p.5 of the Applicant’s submissions of 17th November, had been repealed as from 1st July 2006. Similarly, s.606(1)(e), (ea) and (g), upon which the Applicant seemed to rely most directly, were all repealed as from 1st July 2006.
To these, and related comments on the detailed provisions of the Act, the Applicant simply replied that, because s.606(4)(a), (b) and (c), which were in force on 28th January 2009, are in substantially the same terms as the earlier provisions of the Act, it was sufficient to his case that there was a “breach” of that section in relation to the Activity Agreement to entitle him to succeed.
For completeness, I note that in par.12 of his “Reply” submissions, filed in Court on 30th November, the Applicant “requests a stay order for any proceedings in relation to legal costs of the original application.” This “request” is sufficiently equivocal that it could relate to the 2009 proceedings, or to the current matter. In any event, I do not propose to comment on any stay application unless and or until it is formally before the Court.
Discussion & Conclusion
Principles of Summary Dismissal: I will not repeat the statement of principle set out in my earlier judgment in relation to the principles to be applied in summary dismissal applications.[16] It will be sufficient for current purposes to note the following. I highlight (again) the congruence between s.31A of the Federal Court of Australia Act upon which most of what follows is predicated, and s.17A of the Federal Magistrates Act.
[16] See Vatarescu v Commonwealth of Australia for the Agency of Centrelink [2009] FMCA 1041 at [21] – [25].
In Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd,[17] at [37], Sundberg J provided (respectfully) the following helpful summary of principle:
[37] In applying s 31A, the court does not conduct fact finding but must assess the strength of the allegations made by reference to the pleadings, affidavits and any other evidence adduced, in order to determine whether the claim is sufficiently strong to warrant a trial: see Jefferson Ford 167 FCR at [23] (Finkelstein J), [74] (Rares J) and [130] (Gordon J); see also Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2008] FCA 1257 at [28] (Emmett J); Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [6] (Finkelstein J). Ultimately, the court must consider whether there are any real, as opposed to fanciful, issues of fact or law that require proper determination at a trial.
o In assessing whether there are reasonable prospects of success, the court should draw all reasonable inferences (but only reasonable inferences) in favour of the non-moving party: see Jefferson Ford 167 FCR at [132] (Gordon J). Moreover, where the evidence on a summary judgment application is of an ambivalent character, there will be a real issue of fact and therefore reasonable prospects of success for the purposes of s 31A: see Boston 236 ALR at [45]; Jefferson Ford 167 FCR at [73] (Rares J) and [130] (Gordon J).
o The moving party bears the onus of persuading the court that its opponent has no reasonable prospects of success: see Jefferson Ford 167 FCR at [127] (Gordon J); Boston 236 ALR at [45]. However, where the moving party establishes a prima facie case for summary judgment, the opposing party must be able to point to “specific factual or evidentiary disputes that make a trial necessary”: see Jefferson Ford 167 FCR at [127] (Gordon J).
o As s 31A requires in effect a prediction as to the outcome of a claim, the court should be more reluctant to summarily dismiss a claim where real questions of fact and credit arise. In those cases, the court will not have all material evidence before it until trial, the credit of important witnesses will not have been tested and it will as a consequence be very difficult if not impossible to fairly assess the prospects of the claim: see Jefferson Ford 167 FCR at [20] (Finkelstein J); Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] (Gilmour J).
[17] [2009] FCA 499.
Sundberg J’s remarks have been endorsed in subsequent cases, some of which are post the High Court judgment in Spencer v Commonwealth (noted below). Thus: Kenny J in Deputy Commissioner of Taxation v Southgate Investments Funds Limited, and Ryan J in Helal v McConnell Dowell Constructors (Aust) Pty Ltd.[18]
[18] Respectively, [2010] FCA 129 at [22], and [2010] FCA 1462 at [12]. See also the comments of Bennett J in Australian Competition and Consumer Commission and Another v Link Solutions Pty Ltd (CAN 126 049 214) and Others (No 2) [2010] FCA 919, and her Honour also in Apotex Pty Ltd v Les Laboratoires Servier (No 4) (2011) 89 IPR 274 at [41] & [42], as well as the discussion by Katzmann J in Visscher v Teekay Shipping (Australia) Pty Ltd [2011] FCA 1.
To these cases, the following important matters need to be considered. Most importantly, in Spencer v Commonwealth,[19] the High Court considered further the principles and operation of s.31A of the Federal Court of Australia Act. Thus, French CJ and Gummow J said, at [24]: “The exercise of powers to summarily terminate proceedings must always be attended with caution.” Their Honours further advised, at [25] – [26] (internal citations omitted):[20]
[25] Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
[26] Where an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant. The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact.
[19] (2010) 241 CLR 118.
[20] See also the detailed observations by Hayne, Crennan, Kiefel and Bell JJ at [51] – [60]. See, too, the earlier comments of Gleeson CJ, Gummow, Hayne & Crennan JJ in Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at p.275 [46] (internal citations omitted): “Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." These remarks from Batistatos were cited with approval in Spencer at pp.131-132 [24].
To the above, I simply note the Full Court’s brief observation in Davis v Insolvency and Trustee Service Australia,[21] at [18]: “… we do not read Spencer as requiring that summary relief be withheld where there are factual disputes about matters which are not material to the resolution of the litigation.” Such is clearly the case in the matter currently before the Court.
[21] [2010] FCAFC 141.
In Three Rivers District Council v Governor and Company of the Bank of England (No.3) (“Three Rivers”),[22] which was cited with obvious approval by French CJ and Gummow J in their joint judgment in Spencer v Commonwealth,[23] Lord Hope said (internal citations omitted):
The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman, ... that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.
[22] [2003] 2 AC 1 at p.260-261 [95].
[23] (2010) 241 CLR 118 at pp.130 & 132 [21] & [26].
As already noted, in Spencer v Commonwealth French CJ and Gummow J enjoined courts to form a “practical judgment” in summary dismissal applications, together with the extensive range of other matters to which their Honours referred.
I have already noted my significant concerns about the way in which, and the lack of relevant particularity with which, the Applicant has claimed relief against the Respondent. The materials and submissions as set out – and repeatedly so – by the Applicant, in my view, continues to show (a) his lack of appreciation of legal principle, and (b) both in relation to matters of fact and of law, he has not established any legal basis for any relief in tort against the Respondent.
It seems to me, respectfully, that three comments from Stone J in 2009 remain apposite to the matters currently before the Court.
First, her Honour referred to one response from the Respondent to one of the Applicant’s letters as “bland” and which, “not surprisingly, … did not satisfy the applicant.”[24] In my view, the Respondent has been a less than enthusiastic correspondent, and rather more besides, with the Applicant. It may be the case that the bureaucracy is simply unable, rather than unwilling, to be sufficiently flexible and or immediately responsive to individual “clients”, such as the Applicant, who do not fit neatly or easily into the regime of existing forms and processes that they are required to administer under the Act. However, I am in no position to make any formal findings in this regard.
[24] Vatarescu v Commonwealth of Australia for the Agency of Centrelink [2009] FCA 1539 at [8].
In any event, it is one thing to be either unable, or even unwilling, to satisfy or be able to otherwise meet the expectations and or demands of a highly qualified member of the public who is seeking assistance from a government department. It is quite another thing to translate the dissatisfaction of a “client” into a breach of a legal duty said to be owed to that client. In my view, in the circumstances of this case, I do not see that there was any legal duty owed to the Applicant by the Respondent. It is not made out on the materials before the Court. Disgruntlement, even for good cause (which I do not necessarily find here), should not automatically transform into legal entitlement.
Secondly, her Honour said, at [11]:
At the heart of this matter it would seem is perhaps a lack of understanding by the applicant of the distinction between failure to exercise a discretion and exercising a discretion, as he would see it, incompetently or badly. The applicant’s complaints about Centrelink are based on a strong disagreement with the way in which Centrelink has proceeded to deal with his application.
Thirdly, her Honour also said, at [12]:
On the material that is before me I think that the highest that the matter could be put is that, if the applicant is correct, as to which I make no assessment, Centrelink has exercised its powers and its discretion in a less than competent way. There is, however, nothing in the material that would suggest to me that a legal error has been or could be identified.
Although stated in the context of the then application for judicial review, it seems to me that, in a similar vein, there is no legal basis for the Applicant’s claim in tort.
And, by way of comment only, it may be that, following the intimation by the Respondent, either estoppel and or res judicata principles would have not unreasonable prospects of success if the matter was to proceed. In this regard I simply note that there is substantial congruence between the relief sought and the parties in the earlier proceedings, and the matter that is currently before the Court.
In forming a ‘practical judgment’ of the facts and documents put before the Court, and having regard to the principles set out by the Full Court of the Federal Court in Jefferson Ford and by Sundberg J in Adnunat in the light of the High Court’s comments in Spencer, in my view, there is no reasonable prospect of Dr Vatarescu’s application succeeding.
In the words of Lord Woolf, quoted by Lord Hope, and cited with approval by the High Court in Spencer, unfortunately, the current matter falls into the category of those that are “not fit for trial at all.”
Accordingly, the current application should be summarily dismissed, with costs, either as agreed or taxed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate:
Date: 31 May 2011
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