Croker v Department of Family & Community Services

It appears from the amended statement of claim, to which I will refer shortly, that the reference in the application is intended to be to the Financial Management and Accountability Regulations 1997 (Cth) ("FMA Regulations"), reg 9 and not to the Financial Management and Accountability Act 1997 (Cth) ("FMA Act"), s 9.

8 The orders sought in the amended application are as follows: "(1) The COMMONWEALTH OF AUSTRALIA Re DEPEARTMENT [sic] OF FAMILY AND COMMUNITY AND COMMUNITY SERVICES pay the sum of $140,000.00 in damages. (2) The COMMONWEALTH OF AUSTRALIA Re DEPEARTMENT [sic] OF FAMILY AND COMMUNITY AND COMMUNITY SERVICES pay damages in equity, (a) Explenatory [sic]; (b) Pecuniary; (c) Interest; (d) Out of pocket expenses." 9 The amended statement of claim commences by referring to s 52 of the FMA Act and to the FMA Regulations, regs 6 and 9. Section 52 of the FMA Act provides as follows: "52(1) The regulations may authorise Chief Executives to give instructions to officials in their Agencies on any matter in which Regulations may be made under this Act. (2) An instruction cannot create offences or impose penalties." 10 Regulations 6 and 9 of the FMA Regulations, as in force at the relevant times, provided as follows: "Chief Executive's Instructions (Act, s 52) 6.(1) The Chief Executive of an Agency is authorised to give instructions (to be called Chief Executive's Instructions) to officials in that Agency on any matter necessary or convenient for carrying out or giving effect to the Act or Regulations, and, in particular: (a) on any of the following matters: (i) handling, spending and accounting for public money; (ii) making commitments to spend public money; (iii) recovering amounts owing to the Commonwealth; (iv) using, or disposing of, public property; (v) acquiring property that is to be public property; and (b) for ensuring or promoting: (i) the proper use and management of public money, public property and other resources of the Commonwealth; (ii) proper accountability for the use and management of public money, public property and other resources of the Commonwealth. (2) A Chief Executive must not issue an instruction that is inconsistent with: (a) the Act; (b) these regulations; (c) FMA Orders. ... Approval of spending proposals - principles 9. An approver must not approve a proposal to spend public money (including a notional payment within the meaning of section 6 of the Act) unless the approver is satisfied, after making such inquiries as are reasonable, that the proposed expenditure: (a) is in accordance with the policies of the Commonwealth; and (b) will make efficient and effective use of the public money; and (c) if the proposal is one to spend public money, is consistent with the terms under which the money is held by the Commonwealth." 11 The amended statement of claim continues as follows: "II As in the above Regulation the Chief Executive of an Agency is authorised to give instructions to the Agency of the efficient and effective management of the Agency. The Applicant claim is based on the theory that the failure by the Chief Executive to inform the Agency of the correct practice and procedure has lead to the Applicant to receive false and misleading information in connection with the advance of a Disability Support Pension of $500.00. This information was forwarded to the Applicant on or about the 25th of June 1997, when the Applicant was applying for an earlier advance of a Disability Support Pension of $500.00. III The Applicant claims that on or about the 26th of December 1997 the Applicant with the information supplied on or about the 25th of June 1997 made an application (which is delineated in the records of the Agency that the Applicant has previously made applications and received advanced payments from the Agency at 6 month intervals, over a period of approximately 2.5 years) to the agency for the advance of a disability support pension of $500.00. As has been done for the last 2.5 years every 6 months. IV The Applicant claims that the fiduciary duty of the agency to the Applicant has been broken. The manner that the agency has not been able to keep the Applicant informed of legislation changes that effect the agency [sic] and the Applicant has lead to injustice on the Applicant's behalf. V The Applicant states at no time was there any argument in the fact that the Social Security Act 1991 (Cth) section 1061A legislation had been changed and also the Applicant does not rely on the doctrine of promissory estoppel as a basis for claim. The Applicant reiterates that the claim is made solely under the Financial Management and Accountability Regulations 1997, Sec 9, which gives, rise to claims under defective administration (the Applicant and the respondent made agreement in the undertaking of the Federal Court of Australia No 727/99 that the claim against the agency would continue under the Financial Management and Accountability Regulations 1997 Sec 9. The respondent attempted to handle the matter in there own hands, unsuccessfully. And the undertaking again was remitted to the Federal court of Australia). VI The Applicant acknowledges that the change in the Social Security Act 1991 (Cth) section 1061A legislation was reviled in the 1996 budget speech and had at no time been relayed to the Applicant [sic] in any shape or form. The Applicant emphasises that the Agency was the only body the Applicant sought information from regarding legislative changes and that it is the fiduciary duty of the agency to relay changes to the recipients of the transfer payments. VII The Applicant states that reliance on the agency and information that has been received from the agency has resulted financial loss, loss of enjoyment of life, loss of enjoyment of amenities, loss of opportunity costs, and injured feelings. The Applicant has also applied a great deal of time, effect and financial resources into the applications that have been forwarded to the various forums." 12 In paragraph VIII the applicant gives what he describes as an "example of the interview with the agency in which the information was received". The "interview" is alleged to be as follows: "Applicant; Good morning I'm here to apply for the advanced payment. Agency; Yes! Fill out the form please. Applicant "As filling out the form" I would like to no when I will be eligible for an other advance on the Disability Support Pension. The form has stated every 12 months? but does that mean from the 1st January 10 the 31st of December? Or is that one for every 12 month period?. Agency; The loan is for 6 months and you will be eligible for another advance at Christmas. Applicant; I d just like to check that I be able to get the loan as I will need it. As last time I applied a bit early and found out the balance of the load was taken out before the last payment was sent. I like to come in early again. Agency; "Yes" that should be all right. Applicant; If I come in before Christmas and apply that be all right. Agency; "Yes"; Applicant; "As the form is handed back" thank you, I will see you then!" Agency; "Goodbye!"

Reasoning 13 Like the original statement of claim, the amended statement of claim is not easy to follow. I am prepared to read it as though it alleges that on or about 28 June 1997 an officer of the Department gave the applicant inaccurate information concerning his entitlement to a second advance payment in respect of his Disability Support Pension. On the applicant's case, the information was inaccurate in that he was told that he would be entitled to receive a second advance payment (assuming the first was repaid) six months after the first payment. He was not told that s 1061A of the Social Security Act, as amended on 1 January 1997, prevented him receiving a second advance payment for a period of twelve months after the first payment. 14 For the purposes of the present motion, as Mr Elliott (who appeared for the respondents) accepted, it is appropriate to assume the correctness of the facts alleged by the applicant. On that assumption, one can readily understand the applicant's sense of grievance that he was misled by the inaccurate information provided to him. But a sense of grievance is one thing; pleading a sustainable cause of action in the Court is another. 15 In par V of the amended statement of claim the applicant asserts that his claim is made solely under the FMA Regulations, reg 9. He repeated that assertion in oral argument. 16 Regulation 9 is directed to an "approver". This term is defined in reg 3 to mean: "(a) a Minister or Parliamentary Secretary: or (b) a Chief Executive; or (d) a person authorised by or under an Act to exercise a function of approving proposals to spend public money". Regulation 9 directs the approver not to approve of a proposal to spend public money unless he or she is satisfied that the proposed expenditure meets each of the three criteria specified in reg 9(1)(a), (b) and (c). 17 It is difficult to see how reg 9 could be relevant to any claim that the applicant wishes to make against the respondents. In particular, reg 9 cannot provide the basis for an action in damages, or for any other form of relief, by a person who claims that a departmental officer has given him or her misleading information about future entitlements to social security payments. The provision is simply not directed to the giving of information to members of the public. A fortiori it cannot be read as intended to create an action for damages or other relief by the person who claims to have been misled. 18 The applicant cited Coles Myer Ltd v City West Water Ltd, (Supreme Court of Victoria, Gillard J, unreported, 9 September 1998) which he said supported his reliance on reg 9. That case, however, was quite different, as the relevant legislation (the Water Act 1989 (Vic)) expressly created statutory causes of action. Regulation 9 clearly does not have that effect. 19 In view of the statement in par V of the amended statement of claim that the applicant's case is based solely on the FMA Regulations, it is not clear whether the applicant intends to rely on the allegation, in pars IV and VI, that the "agency" (presumably the Commonwealth) breached a fiduciary duty owed to him. When asked in the course of argument about the pleading concerning the alleged fiduciary duty, the applicant said that it was intended to be read as part of his case under the FMA Regulations. On this basis, the pleading in pars IV and VI cannot advance his case. 20 Having regard to the applicant's explanation on par IV of the amended statement of claim, it is perhaps unnecessary to consider whether he has adequately pleaded a case against the Commonwealth founded on breach of fiduciary duty. Nonetheless, I shall do so. 21 In my view, insofar as the pleading can be read as intended to make out a case founded on breach of fiduciary duty, it is deficient. It fails to address at least two critical questions: · First, the amended statement of claim does not allege the material facts on the basis of which the applicant says that the Commonwealth (assuming that is meant by the reference to "agency") owed a fiduciary duty to the applicant. · Secondly, the pleading does not explain the causal relationship that is said to exist between the alleged breach of fiduciary duty (presumably constituted by the giving of inaccurate information) and any losses or detriment the applicant claims to have sustained. (I identified a similar deficiency in the original statement of claim: Croker v Department of Family and Community Services, at [20]).) Neither of these deficiencies is a mere matter of form. 22 In the absence of a properly pleaded case, the circumstances on which the applicant relies to establish a fiduciary relationship are unclear. A liberal reading of the amended statement of claim might suggest that the existence of a fiduciary relationship is founded on the allegation that the applicant asked a departmental officer about his entitlement to a future advance payment and was given inaccurate information in response. If this is the basis of the claimed fiduciary relationship, it seems doomed to failure. 23 There are no rigid rules for determining whether fiduciary duties arise in a particular case. In News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 (FC), at 538, the Full Court acknowledged the "difficulty of formulating a comprehensive principle suitable for application to very different relationships, operating in very different circumstances and for different purposes." See also Breen v Williams (1996) 186 CLR 71, at 92, per Dawson and Toohey JJ; at 106, per Gaudron and McHugh JJ. 24 There are certain categories of cases, usually described as relationships of trust and confidence, that ordinarily attract fiduciary duties. These include "vertical relationships" such as solicitor and client, principal and agent, and employer and employee: Breen v Williams, at 92, 107. In addition, "collaborative" or "horizontal" arrangements such as partnership or joint ventures may attract fiduciary duties: News Ltd v ARL, at 539-540. But the categories are not closed: Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, at 96, per Mason J. 25 Even so, in order for fiduciary duties to exist, something more is required than an allegation that a party relied on information provided by the alleged fiduciary. The distinguishing characteristic of a fiduciary relationship has been said to be that "its essence, or purpose is to serve exclusively the interests of a person or group of persons; or, to put it negatively, it is a relationship in which the parties are not free to pursue their separate interests." (Meagher, Gummow and Lehane, Equity Doctrines and Remedies (3rd ed, 1992), at 130-131.) Reliance and vulnerability may be indicia of a fiduciary relationship, but they do not necessarily establish that such a relationship exists: News Ltd v ARL, at 541. If it were otherwise, there would be a very large overlap indeed between the circumstances in which a duty of care arises and those in which fiduciary relationships arise. 26 In Breen v Williams, the High Court unanimously rejected the appellant's contention that a doctor owes a fiduciary duty to a patient to give that patient access to his or her medical records. Dawson and Toohey JJ pointed out (at 93) that "[i]t is not the case that whenever there is a 'job to be performed', and entrusting the job to someone involves reposing substantial trust and confidence in that person, a fiduciary relationship arises." 27 Their Honours considered it to be of significance that a fiduciary acts in a "representative character". In their view, it could not be said that a doctor acts on behalf of a patient. Their Honours continued (at 93): "Equity requires that a person under a fiduciary obligation should not put himself or herself in a position where interest and duty conflict or, if conflict is unavoidable, should resolve it in favour of duty…. The application of that requirement is quite inappropriate in the treatment of a patient by a doctor or in the giving of associated advice. There the duty of the doctor is established both in contract and in tort and it is appropriately described in terms of the observance of a standard of care and skill rather than, inappropriately,, in terms of the avoidance of a conflict of interest. It has been observed that what the law exacts in a fiduciary relationship is loyalty, often of an uncompromising kind, but no more than that. The concern of the law in a fiduciary relationship is not negligence or breach of contract. Yet it is the law of negligence and contract which governs the duty of a doctor towards a patient. This leaves no need, or even room, for the imposition of fiduciary obligations." 28 Gaudron and McHugh JJ said (at 108) that: "the law of fiduciary duty rests not so much on morality or conscience as on the acceptance of the implications of the biblical injunction that '[n]o man can serve two masters'. Duty and self-interest, like God and Mammon, make inconsistent calls on the faithful. Equity solves the problem in a practical way by insisting that fiduciaries give undivided loyalty to the persons whom they serve." 29 In my opinion, the reasoning in Breen v Williams runs counter to the proposition that the Commonwealth comes under a fiduciary duty to provide accurate information to an individual who makes an inquiry about future entitlements to social security benefits. The departmental officers concerned do not act as the representative of the person making the inquiry. Nor is there any question of the officers serving two masters, such that duty and self-interest come into conflict. Whatever duties might arise by reason of the inquiry, they do not involve any obligations of a fiduciary character. 30 This is not to deny that there may be special circumstances in a particular case which are such as to attract fiduciary duties of some kind. But no such circumstances are pleaded in the present case. And the applicant did not suggest that there were additional circumstances available to be pleaded. 31 The second deficiency I have identified is that the amended statement of claim does not allege any causal relationship between the alleged breach of the Commonwealth's fiduciary duty to the applicant and the financial losses or other detriments allegedly sustained by the applicant. Paragraph VIII refers to these losses or detriments only in the most general terms and no material facts are alleged which would establish a link between the claimed losses or detriment and any breach of fiduciary duty. 32 If the applicant attempted to establish such a link, he would face difficulties. Insofar as he claims to have lost the sum of $500 that he was told (on his case) would be payable in December 1997, he faces the obstacle created by s 1061A(4)(c) of the Social Security Act. That provision seems to preclude relief designed to compensate the applicant for what he claims is the Commonwealth's failure to pay the sum of $500 in December 1997. The authorities establish that principles of estoppel or contract cannot be invoked either to avoid prohibitions imposed by statute or to sanction the appropriation of public moneys without the authority of Parliament: Formosa v Secretary, Department of Social Security (1988) 46 FCR 117, at 124-125, per Davies and Gummow JJ; Roberts v Repatriation Commission (1992) 39 FCR 420, at 441-442, per curiam; Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, at 212, per Gummow J. The same principles would foreclose reliance on breach of fiduciary duty (or, for that matter, other duties) to circumvent a statutory prohibition (such as that contained in s 1061A(4)(c)) or to sanction the appropriation of moneys without Parliamentary approval. 33 To the extent that the applicant seeks compensation other than payment of the sum of $500, the pleading does not specify the nature of the losses, nor how they can be attributed to the alleged breach of the Commonwealth's fiduciary duty. Nothing put forward in written submissions or oral argument explained how the applicant might be able to establish any such link. It merely asserts, in the most general terms, that he has sustained various categories of losses in reliance on inaccurate information provided to him. It is by no means obvious how the failure to make an advance payment of $500, assuming the failure to constitute a breach of a duty owed to the applicant, could support a claim for "financial loss, loss of enjoyment of life, loss of enjoyment of [amenities], loss of opportunity costs and injured feelings" (see par VII of the amended statement of claim). 34 In my opinion, the deficiencies in the amended statement of claim are such that it should be struck out as disclosing no reasonable cause of action. Should the Applicant be permitted to replead? 35 The next question is then whether the applicant should be permitted to file a further amended statement of claim. The effect of refusing to grant leave is equivalent to dismissing the proceedings summarily. It is, of course a serious matter to deny a litigant the opportunity to present his or her case to a court on the merits. The power to dismiss proceedings summarily is to be exercised with great care and only in a clear case in accordance with the principles laid down in Dey v Victorian Railways Commissioners (1949) 78 CLR 62, at 91-92, per Dixon J; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, at 129-130, per Barwick CJ. See also Dunn v Australian Society of Certified Public Accountants (1998) 29 ACSR 1, at 4, per Burchett J. Nonetheless, the High Court recognised in Munnings v Australian Government Solicitor (No 2) (1994) 120 ALR 586, at 589, that "although a plaintiff is often granted leave to replead if a statement of claim is struck out, there are some cases where the plaintiff so misconceives the cause of action that the action should be brought to an end." 36 In this case the applicant has had two opportunities to file a statement of claim pleading a reasonable cause of action. He has failed on each occasion. Moreover, he has relied on contentions, specifically his arguments based on reg 9 of the FMA Regulations, that are manifestly unsustainable. 37 It is also necessary to take into account what the applicant proposes to do with any opportunity to replead. To this end I asked him at the hearing what purpose would be served, should the amended statement of claim be struck out, by an order granting him leave to replead. He replied that he believed that the Department should be held accountable for the mistake that he alleges was made in June 1997. He wished to examine the Social Security Act in order to determine whether there is an alternative basis upon which his claim could be put. He was not able to articulate what that basis might be. He did not suggest any other form of pleading that might be put forward. 38 In these circumstances, as a matter of justice, the proceedings should be brought to an end. No useful purpose would be served by granting the applicant leave to file a third version of the statement of claim. It is unfair to the respondents for the proceedings to continue.

Costs 39 No costs were sought in respect of the first strike-out motion. Mr Elliott, however, submitted that costs should follow the event on this occasion. The applicant did not put forward any cogent reason why there should be a departure from the usual principle. Accordingly, the applicant should pay the respondents' costs.

Orders 40 The proceedings should be dismissed. The applicant should pay the respondents' costs of the motion filed on 26 May 2000, and of the proceedings (other than the costs of the motion filed on 11 February 2000). I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate: Dated: 3 July 2000 Applicant appeared in person

Solicitor for the Respondents: Australian Government Solicitor