Croker v Dept of Family & Community Services

REASONS FOR JUDGMENT BEAUMONT J: 1 Before the Court is an application for leave to appeal from an interlocutory judgment of Sackville J, in which his Honour dismissed proceedings as disclosing no reasonable cause of action. The history of the litigation is that the applicant before us commenced proceedings in this Court by application filed on 27 August 1999, claiming firstly, that the Department of Family and Community Services ("the Department") had breached s 9 of the Financial Management and Accountability Act 1997 (Cth) ("the Act") and secondly, that the Department had "procrastinated" the claim in the Federal Court of Australia. 2 The application purported to state that questions of law were raised in the proceedings, namely, whether the Department of Family and Community Services had jurisdiction to "oversee" the Act and secondly, whether the Department was liable for damages causes by a breach. The orders sought in that application included a claim for damages in the sum of $140,000. 3 The application was supported by a statement of claim drawn by the applicant who at all times has been unrepresented, but is a student at law. It is not necessary that we endeavour at this point to summarise the nature of the allegations made in that statement of claim since, upon application, it was ordered to be struck out by the primary Judge on the ground that it disclosed no reasonable cause of action. However, his Honour reserved to the applicant liberty to re-plead. 4 The applicant accepted the invitation and by further pleadings and amended application filed on 24 March 2000, the applicant further prosecuted his previous claims. In the amended statement of claim the applicant, in substance, reiterated his previous claims and articulated a series of claims to which I should briefly refer. The amended statement of claim opens by stating that the application is made against the Commonwealth in relation to the Department and it is a claim made under the Financial Management and Accountability Regulations. The pleading quotes s 9 [Reg 9] which deals with the subject of approval of spending proposal. Reference is then made to s 6 [Reg 6] of the Regulations which deals with the Chief Executive's instructions and the pleading goes on to refer, in that connection, to s 52 of the Act which speaks in general terms of the authority that may be conferred upon a Chief Executive by the Regulations. 5 The applicant's statement of claim then alleges that in December 1997 the applicant, armed with information supplied in June 1997, applied to the Department for the advance of a disability support pension of $500. (At this stage it appears that for some years the applicant has been in receipt of a disability support pension.) We were informed by the applicant that the application for the advance was made in order that he could discharge a debt owed to a friend. 6 The pleading then goes on to allege that the Commonwealth agency was in breach of its fiduciary duty to the applicant by not keeping the applicant informed of legislative changes and this had led to injustice. The matter is developed in the subsequent paragraphs of the pleading but I need not, for present purposes, mention these allegations. The pleading concludes with a statement of the terms of a conversation which the applicant alleged occurred with an officer of the agency in June 1997 on the topic of the advance previously mentioned. 7 The primary Judge, for the reasons his Honour gave on 3 July 2000, ordered that the proceedings be dismissed for the reason previously mentioned, that is, that no reasonable cause of action was disclosed in the amended statement of claim. His Honour dealt with the matter at some length and in some detail and again it is unnecessary, for present purposes, that we endeavour to summarise that. His Honour, towards the end of his reasons, addressed once more the question whether the applicant should be permitted to re-plead. His Honour noted that the applicant had already had two opportunities to file a statement of claim pleading a reasonable cause of action and had failed. His Honour said that the applicant relied on contentions, specifically, his arguments based on Reg 9 of the Financial Management and Accountability Regulations, that are "manifestly unsustainable". 8 His Honour went on to say that regard needed to be had to what the applicant proposed to do with any options to re-plead. To this end, his Honour noted that upon inquiry at the hearing before him, the applicant had indicated that "he believed that the Department should be held accountable for the mistake that [the applicant] 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 to put his claim. His Honour noted that the applicant was not able to articulate what that basis might be. He did not suggest any other form of pleading that might be put forward. 9 His Honour concluded that as a matter of justice the proceedings should be brought to an end and that no useful purpose would be served by granting leave to the applicant to file a third version of his pleading. It was unfair, his Honour said, to the respondent for the proceedings to continue. 10 At the hearing before us the Court again inquired of the applicant of the nature of the cause of action he endeavoured to assert. We were informed that the applicant has in mind a claim for exemplary damages. It is clear beyond any argument that there is no basis for any claim for fiduciary duty in the present case; and no other cause of action known to common law or any claim in equity has emerged as even conceivably capable of being propounded on any reasonable basis. 11 In those circumstances, in my opinion, the interest of justice requires that leave to appeal should be refused. In so concluding, I bear in mind the well-established test for the grant or refusal of leave, that is, first, whether in all the circumstances the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court; and secondly, whether substantial injustice would result if leave were refused supposing the decision to be wrong (Decor Corporation v Dart Industries Inc (1991) 33 FCR 397). In the present case, not only is there not sufficient doubt attending the decision of the primary Judge to warrant its being reconsidered by a Full Court but, in any event, it has not been demonstrated that substantial injustice would result if leave were refused supposing, for the sake of the argument, that decision to be wrong. It follows, therefore, in my view that no proper ground for grant of leave has been established and therefore leave ought to be refused with costs.