Croker v Minister for Finance and Deregulation

Judgment (6 paragraphs)

[1]

REASONS FOR JUDGMENT 1 By originating application, the applicant ('Mr Croker') seeks the following orders: 1. An order by the Court compelling the Respondent to make decisions to pay compensation for detriment caused by defective administration (CDDA) claims / act of grace payments / ex gratia payments by the Applicant against Commonwealth agencies pursuant to the Financial Management and Accountability Act 1997 (Cth) - Sect 33 and in particular those claims against the Commonwealth agencies of the Commissioner for Taxation of the Commonwealth of Australia, Department of Families, Housing, Community Services and Indigenous Affairs and Secretary, Department of Education, Employment and Workplace Relations; 1A. An order pursuant to s.39B of the Judiciary Act 1903 (Cth); 2. An order for costs; and 3. Such other orders the Court deems fit. 2 Mr Croker has sworn two affidavits in support of his application. Mr Croker deposes that he has previously made claims under s 33 of the Financial Management and Accountability Act 1997 (Cth) ('the Act'). Section 33 of the Act empowers the Finance Minister to authorise the making of an ex gratia payment in certain circumstances. Such section relevantly states: (1) If the Finance Minister considers it appropriate to do so because of special circumstances, he or she may authorise the making of any of the following payments to a person (even though the payment or payments would not otherwise be authorised by law or required to meet a legal liability): (a) one or more payments of an amount or amounts specified in the authorisation (or worked out in accordance with the authorisation); (b) periodical payments of an amount specified in the authorisation (or worked out in accordance with the authorisation), during a period specified in the authorisation (or worked out in accordance with the authorisation).

[2]

SUBMISSIONS 8 Mr Croker submits that the question raised by his application requires the Court to consider the actions which departments and agencies of the Commonwealth are required to take when claims are received. He asserts that the Minister to failed to deal with his claim in accordance with the model litigant provisions of the Legal Services Directions 2005 (Cth) ('the Legal Services Directions'). Mr Croker submits that the time which has elapsed since he made his claim is excessive and for this reason he seeks relief set out in his originating application. 9 The Minister's contention that the proceeding should be dismissed relies upon the fact that unless and until a request is made under the Act for an ex gratia payment, no occasion arises for the Minister to consider authorising an ex-gratia payment. That is, the Court must be satisfied that a request has been made in order to activate the provisions of s 33(1) of the Act. The Minister submits that no such request has been made. 10 In response to the assertions of Mr Croker that he delivered a letter to the Department and provided it to Mr Hill, the Minister refers to the letter of the Department dated 19 December 2012, as attached to Mr Croker's affidavit in support of his application. Further, the Minister relies upon a Statement of Non-Service provided by the director of the Department dated 30 April 2013 which relevantly states: The Department of Finance and Deregulation has no record of David Hill being an employee of the Department on 21 October 2011. A search of the Department of Finance and Deregulation's electronic systems was undertaken on 29th April 2013 and no record of David Hill being an employee or contractor of the Department at any time since 1998 has been found.

Alleged non-compliance with the Legal Services Directions 16 The Legal Services Directions are made pursuant to s 55ZF(1) of the Judiciary Act. Such section states: (1) The Attorney-General may issue directions (Legal Services Directions): (a) that are to apply generally to Commonwealth legal work; or (b) that are to apply to Commonwealth legal work being performed, or to be performed, in relation to a particular matter. 17 The phrase 'Commonwealth legal work' includes any legal work performed by a person for the Commonwealth: s 55ZF(3)(b)(i). 18 Whether the conduct of the Minister pursuant to s 33 of the Act falls within the purview of the Legal Services Directions need not be considered. It is sufficient to note that Mr Croker has no standing to allege any breach of the Legal Services Directions for two reasons: 1. Compliance with a Legal Services Direction is not enforceable except by, or upon the application of, the Attorney-General: s 55ZG(2) of the Judiciary Act. 2. The issue of non-compliance with a Legal Services Direction may not be raised in any proceeding (whether in a court, tribunal or other body) except by, or on behalf of, the Commonwealth: s 55ZG(3) of the Judiciary Act. 19 Mr Croker was on notice prior to the commencement of this proceeding that any attempt to raise an issue of non-compliance with the Legal Services Directions would fail. Mr Croker was the appellant in the Full Court proceeding of Croker v Commonwealth of Australia [2011] FCAFC 25, in which Siopis, Tracey and Gilmour JJ said of the decision of the court below at [19]: It was not necessary for his Honour to explore this issue [of non-compliance with the Legal Services Directions] further because compliance with the directions was not enforceable by Mr Croker and could not be raised in any proceeding other than by or on behalf of the Commonwealth: see s 55ZG of the Judiciary Act. 20 For the reasons above the Court dismisses the application. It is unfortunate that these proceedings have been brought to Court in circumstances where, Mr Croker being aware that his application would be opposed for the reasons that David Hill was never an employee, and that the very foundation of his claim was in issue, he did not simply provide the Department with a separate request. Had he done so, this litigation may have been avoided. 21 No costs are sought by the Minister. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

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