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[1977] HCA 18
High Court of Australia
1977-04-15
Stephen J
Original judgment source is linked above.
GREEN v. DANIELS [1977] HCA 18; (1977) 51 ALJR 463
Melbourne, 1977, March 4, 7, 9; April 15. 15:4:1977
STEPHEN J. The plaintiff is a girl of sixteen who completed her fourth form school year on 26th November, 1976, at Clarence High School in one of Hobart's eastern shore suburbs. (at p464)
2. During 1976, while still at school, she had discussed with a school guidance officer and others possible employment opportunities. On 25th November, 1976, the day before the end of the school year, she visited a branch office of the Commonwealth Employment Service so that she might register for employment and seek assistance in finding it. She duly registered and some details of her school record were taken. She was told that there was no work available for her and that she should call in again later on when she had received her complete school results. (at p464)
3. She received these results some three weeks later and called again with them at the office of the Service on 20th December, 1976; she was interviewed, was told that no jobs were available and that she could not as yet receive an unemployment benefit because school leavers would not be receiving it until 22nd February, 1977. Details of her school record, as previously recorded, were supplemented and corrected in the light of the examination results she had brought with her. She was handed a printed form of letter from the Department of Social Security, apparently prepared for distribution to those leaving school that year, together with two forms issued by that Department and headed respectively "Record of Applications for Employment" and "First Income Statement". These she was told to bring back, duly completed, on 22nd February, 1977. She then also completed a claim for unemployment benefit. She was then taken to the Department of Social Security where she made application for a Special Benefit available in certain instances to those not entitled to unemployment benefits; however this application was later rejected upon the ground that her mother, a widow, would continue to receive an additional benefit in respect of her until she obtained employment or until 22nd February, 1977, whichever should be the earlier. (at p464)
4. Then, in January 1977, as a result of receiving a letter from the Commonwealth Employment Service, she had a telephone conversation with an officer of the Service in which she was asked whether she had already "registered for unemployment". On hearing that she had, the officer told her, in response to a question, that she need not again visit his office until 22nd February and that she should then bring with her the completed forms she had been given. (at p464)
5. During the months of December, January and February the plaintiff made a number of efforts to secure employment, she responded to advertisements and registered with two private employment agencies but all without success. (at p464)
6. On 22nd February, 1977, she again called at the office of the Commonwealth Employment Service with the forms which she had by then completed and which she then lodged. She asked about job vacancies and, after some inquiry was made, was told that there were none. She filled in a further form, concerned with tax instalment rebates, and shortly afterwards received her first cheque for unemployment benefits, computed as from 22nd February, 1977. (at p464)
7. The plaintiff is still unemployed despite what are admitted to have been reasonable steps taken by her since 22nd February, 1977, to find employment; consequently she is still in receipt of unemployment benefits. It is agreed that during the period from 20th December, 1976, until 22nd February, 1977, the Commonwealth Employment Service was unable itself to find employment for her or to refer her to any available positions. (at p464)
8. I find as further facts that by the end of her 1976 school year the plaintiff had determined to leave school and to seek employment at the end of the school year in November 1976; that she abided by this decision and to the best of her ability sought employment, without success, from the month of December 1976 onwards; that her lack of success was not due to any want of trying but rather to her relatively poor qualifications combined with the depressed employment conditions then being experienced in Hobart. (at p465)
9. It is in the light of these facts, together with others to which I shall refer in the course of this judgment, that the plaintiff's claims to relief are to be determined. These claims are, as I understand them, essentially two. First, that she was entitled to unemployment benefits throughout the period from 27th November, 1976, until 22nd February, 1977, that they have been wrongfully denied to her and that she is entitled to a declaration accordingly and to payment of the arrears due to her. Secondly, that she is entitled to damages reflecting the amount of lost unemployment benefits, her entitlement being founded upon the negligence of the defendants in misinforming her concerning her lawful entitlement to such benefits. This second claim to relief is contingent upon success in establishing the entitlement to unemployment benefits claimed in the first claim and is put forward lest that entitlement, if established, should nevertheless prove fruitless because of the terms of s. 132(3) of the Social Services Act 1947. That section provides that an instalment of a benefit shall not be paid later than twenty-eight days after it became payable unless otherwise determined by the Director-General. (at p465)
10. I put aside this second claim for the moment and turn to the first, the plaintiff's claimed entitlement to unemployment benefits from 27th November, 1976, until 22nd February, 1977. (at p465)
11. Section 107 of the Act provides that a person who
"(a) has attained the age of sixteen years but, being a male, has not attained the age of sixty-five years or, being a female, has not attained the age of sixty years;
(b) is residing in Australia on the date on which he lodges his claim for a benefit and -
(i) has been continuously so resident for a period of not less than twelve months immediately preceding that date; or
(ii) satisfies the Director-General that he is likely to remain permanently in Australia; and (c) satisfies the Director-General that he -
(i) is unemployed and that his unemployment is not due to his being a direct participant in a strike;
(ii) is capable of undertaking, and is willing to undertake, work which, in the opinion of the Director-General, is suitable to be undertaken by that person; and
(iii) has taken reasonable steps to obtain such work, shall be qualified to receive an unemployment benefit". (at p465)
12. It is not in dispute that the plaintiff satisfies the requirements of pars. (a) and (b). Had par. (c) concerned itself only with the factual circumstances referred to in its three sub-paragraphs, I would have no difficulty in concluding that on 20th December, 1976, the plaintiff had complied with the criteria in at least sub-pars. (i) and (ii). (at p465)
13. However, par. (c) is not directly concerned with factual circumstances, but rather with the state of mind of the Director-General. The criteria it prescribes are matters to which the Director-General must turn his mind and it is his satisfaction as to an applicant's compliance with them that determines whether or not an applicant becomes "qualified to receive an unemployment benefit". It was conceded that in the case of sub-par. (ii) he had been satisfied on or about 20th December of the plaintiff's compliance with it. There is no doubt but that it was not until 22nd February, 1977, that the Director-General became satisfied in terms of sub-pars. (i) and (iii) of par. (c). The question is, therefore, whether he wrongly precluded himself from attaining the requisite state of satisfaction, and, if he did do so, what are the consequences in law for the plaintiff and the remedies open to her. (at p465)
14. Counsel for the plaintiff contends that he did so preclude himself, that he ought to have been so satisfied and that in those circumstances this Court should now substitute for his erroneous want of satisfaction what should have been the state of satisfaction which, by 20th December, 1976, he ought to have attained. The plaintiff, it is said, thus becomes entitled to an appropriate declaration as to qualification for unemployment benefit as from that date and to payment of benefits from that day onwards. It was, so it is said, only as a result of the application to the plaintiff of an inflexible policy (better perhaps expressed as the inflexible application to her of a policy) that the Director-General failed to be satisfied; that policy was that school leavers should not be treated as qualifying for benefits until the end of the school holidays. (at p465)
15. For the defendant it is said that the departmental policy was no more than a quite appropriate general rule, which was subject to exceptions for special cases and which was necessary to provide general guidance in dealing with the difficult case of school leavers and their entry into the work force. The plaintiff was offered the opportunity of showing that hers was a special case but she failed to take it, by her failure accepting the view that she had not then satisfied the Director-General. In any event, so it is said, the plaintiff by 20th December, 1976, had not stated that she was both unemployed and was not returning to school; not until 22nd February, 1977, did she inform the Department that she had in the interim been seeking employment. Accordingly, the Director-General's want of satisfaction was entirely reasonable. It was further contended that the plaintiff's writ, issued on 24th December, 1976, was premature, that if any remedy were open to her, it was by way of mandamus, that this Court could not substitute its satisfaction for that of the Director-General, that any state of satisfaction could not be made retrospective; that in any event unemployment benefits are by way of a gratuity which may not be sued for and recovered, as the plaintiff seeks to do. (at p465)
16. These, then, were the general areas of dispute over which argument ranged; of course my description, confined to a few sentences, does less than justice to the fullness of the arguments relied upon. (at p465)
17. At the heart of this litigation lies what was called in argument the departmental policy applicable to the grant of unemployment benefits to those leaving school at the end of the 1976 school year. This policy itself is described in some detail in a departmental publication. the relevant portions of which are in evidence, the "Unemployment and Sickness Benefit Manual". This manual contains instructions concerning the administration of the present legislation and par. 7.301 states that full-time students are ineligible for unemployment benefits, whether in term time or during vacations. Paragraph 7.302 refers to past instances in which "school leaver claimants" had been paid unemployment benefits, only later to resume their studies. Thus, it is said, they received benefits to which they would not otherwise have been entitled. Then follows this passage: "As a general rule, therefore, people who leave school and register for employment within 28 days prior to the end of the school year, or at any time during the long vacation, will not be in a position, until the end of the school vacation, to satisfy the conditions of eligibility for unemployment benefit which require the claimant to be unemployed and to have taken reasonable steps to obtain work." (at p466)
18. One who leaves school well before the end of the school year is, apparently, to be treated significantly differently; instead of having the general rule applied to him, his particular circumstances are, in each instance, to be considered. Thus par. 7.303 reads: "Where a student claims that he has terminated his studies more than 28 days before the end of the official school year and that he intends to join the workforce, it will be necessary to look at the circumstances of the individual case to establish whether he has in fact ceased to be a student." (at p466)
19. Paragraph 7.304 puts the position affirmatively; its opening sentence reads: "A student who intends to enter the workforce and not resume his studies will, as a general rule, be eligible for unemployment benefit from the date of commencement of the following school year or from the seventh day after the date of lodgment of the claim, whichever is the later." A portion of the last sentence of this paragraph describes his position before that date arrives when it says: "because of the operation of these instructions, there is no entitlement to payment". (at p466)
20. The operation of this policy is demonstrated by what is said in par. 7.307 about the special case of a student intending to resume his studies, but who is unable to do so at the resumption of the usual academic year and who seeks employment in the meanwhile. He "will be eligible for unemployment benefit from the date of commencement of the school year subsequent to the cessation of his studies, or from the seventh day after the date of lodgment of his claim, whichever is the later, and until such time as he resumes his full-time studies." (at p466)
21. This policy, as it was applied to the plaintiff, first manifested itself when, on 20th December, 1976, she was told in response to her application for unemployment benefit, that school leavers "were not getting it" until 22nd February, 1977, the date when the school holidays ended. The standard form of letter addressed to school leavers which she was handed, after speaking of the need to satisfy the condition of eligibility for unemployment benefit relating to the taking of reasonable steps to obtain work, went on to say: "The effect of the above conditions is that, as a general rule, persons who leave school in November or December will not be in a position to meet the conditions of eligibility for unemployment benefit until the end of the school vacation". That letter ended with this paragraph: "Persons who left school at the end of the school year, who are not planning to undertake full-time education or training and who are still seeking employment at the end of the school vacation, will be eligible for unemployment benefit from the date of commencement of the new school year." (at p466)
22. Two further circumstances illustrate the application of the policy to the plaintiff. The "Record of Applications made for Employment" which she was given on 20th December and which required to be filled in with particulars of job opportunities sought by her contained a printed box bearing the legend "date of lodgment"; when the form was handed to her it was filled in with the date "22.2.77". This had been written in by the issuing officer, who told her to bring the form back, completed with details of her applications for employment, in two months time on 22nd February, 1977, the end of the school holidays. Again when, on the 20th December, the Commonwealth Employment Service referred the plaintiff to the Department of Social Services, it was so that she might apply for a special Benefit, a type of benefit only available to those not entitled to unemployment benefit. (at p466)
23. Whatever hint of flexibility and of room for consideration of exceptional cases may be thought to be conveyed by the Manual's use of the phrase "as a general rule", repeated in the standard form of letter to school leavers, the application of the general rule to the plaintiff contained no suggestion of anything other than an inflexible rule, a rule which prevented her from being considered for unemployment benefit at any time prior to 22nd February, 1977. It is said on behalf of the defendants that the plaintiff has herself to blame for this, since she failed to tell the Department on 20th December, or at any time prior to 22nd February, 1977, what she had done on her own behalf by way of efforts to find employment. (at p466)
24. To this, the plaintiff replies that she was not only not asked for such information, but was expressly told that it should only be supplied on the date fixed for her next visit to the Commonwealth Employment Service, at the end of the school holidays. But more than that, there was, in any event, nothing very exceptional about the plaintiff's position of which she had to tell. I must, I think, infer that very many other school leavers would have been in precisely her position; that is, having decided to leave school, they would have taken some steps on their own account to seek employment, but would have met with no success. There was much evidence of the difficulties experienced by school leavers in obtaining employment in Hobart in the summer of 1976, including evidence that when advertisements of jobs available appeared in the daily press, very large numbers of applicants would appear in response. It is clear from the standard letter addressed to school leavers, from the "Record of Applications made for Employment" and from a pamphlet which is in evidence "Help CES Help You", apparently commonly issued to school leavers, that it was contemplated that school leavers should make their own endeavours to obtain employment as well as registering with the Commonwealth Employment Service. The plaintiff had, by 20th December, made about three such applications for employment; she made a number subsequently, but there is nothing to suggest that she did any more than any other school leaver in her position. (at p467)
25. Accordingly, this is not, I think, a case of a person in an exceptional situation being denied the opportunity of having her particular circumstances considered on their peculiar merits, but rather one in which the plaintiff, together no doubt, with very many others, has been dealt with in accordance with a general administrative rule intended for just such an ordinary case as hers. (at p467)
26. The question is, then, whether this general rule is no more than a permissible instruction by the Director-General to those to whom he has delegated his powers under s. 107(c) as to how they are to determine whether they are satisfied of the matters there referred to; or whether on the contrary it reveals an attempted substitution of inconsistent departmental criteria for those which the Parliament has enacted as appropriate to qualify an applicant for unemployment benefit. (at p467)
27. Before going to this question, there are two related matters to which I should briefly refer. First, I do not regard this case as involving the introduction of irrelevant factors into a decision-making process; the fact that a purported school leaver applies for unemployment benefit during the school holidays will bear upon, though it can hardly be at all conclusive of, the question whether he is truly an intending entrant into the work force or is, on the contrary, merely seeking unemployment benefit during the holiday interval occurring in the course of his continuing school career. The type of error involved in employing that fact as a conclusive test will not be that of permitting irrelevant factors to affect a decision-making process. Secondly, in saying this, I have adopted as correct what was implicit in the arguments of both parties, namely that a person is not unemployed within the meaning of s. 107 either when actually attending school or tertiary institution or when on vacation before returning to school or other institution. The term "unemployed" is not defined in the Act and it would, in my view, be inconsistent with ordinary usage to describe such a student as unemployed in the context of this legislation's provision of benefits for the unemployed. On the other hand, one leaving school with the intention of not returning to his studies but, instead, of seeking work and who begins to seek employment appears to me thereupon to answer the description of one who is unemployed. He will continue to do so so long as he remains out of employment and retains his intention of entering the workforce. This said, I return to examine the question earlier posed. (at p467)
28. In doing so, it should be remarked that the function of the Director-General under s.107 is to be distinguished from that of tribunals, such as licensing justices, which, in their exercise of discretionary powers to grant or refuse licences, may give effect to some general policy that they see as desirable so long as in doing so they do not preclude themselves from considering on its merits the exceptional case. The Director-General is not concerned, in his administration of s. 107, with the carrying out of any policy. No general discretion is conferred upon him; instead specific criteria are laid down by the Act and all that is left for him to do is to decide whether or not he attains a state of satisfaction that the circumstances exist to which each of these criteria refer. He must, no doubt, for the benefit of his delegates and in the interests of good and consistent administration, provide guidelines indicating what he regards as justifying such a state of satisfaction. But if, in the course of doing this, he issues instructions as to what will give rise to the requisite state of satisfaction on the part of his delegates and these are inconsistent with a proper observance of the statutory criteria he acts unlawfully; should his delegates then observe those instructions, their conclusions concerning an applicant's compliance with the criteria will be vitiated. (at p467)
29. This is what has happened in the present case. The criteria in s.107 (c) (i) and (iii), those of being "unemployed" and of having "taken reasonable steps to obtain such work", have had superimposed upon them a requirement which prevents them from being satisfied by any school leaver during the school holidays, a period of about three months, and which, in effect, renders them inoperative during that period. (at p467)
30. The position may be tested by examining the matters arising for consideration under each of these two statutory criteria and the effect, in each case, of the Director-General's requirement. I take first sub-par.(i) of s. 107(c). The state of being "unemployed" I regard as satisfied as soon as a student leaves school, with the intention of not returning but, instead, of entering the workforce, and begins to seek employment. The only element in that set of circumstances which is not readily ascertainable by the Director-General is the school leaver's intention. That intention he has chosen to ascertain by waiting until the outcome reveals itself at the end of the school holidays. To do so no doubt ensures that the Director-General's state of satisfaction of mind will accord with the truth of the matter in the case of those applicants, surely only a small proportion, who seek to deceive him when they say that they do not intend to return to school; as to them his refusal to be satisfied until the end of the holidays will ensure that he is not deceived. But he has only attained this result at the cost of being wrong in the case of all those other applicants who have truthfully told him that they have ended their school days but whose statement he has refused to accept until proved correct at the end of the school holidays. In the case of all these, unemployment benefits will have been denied them during the school holidays and this because the Director-General will erroneously have failed to be satisfied as to their true position. Those, too, who at the beginning of the school holidays intend permanently to leave school but later change their minds, perhaps because of the lack of job opportunities, will also be treated erroneously by the Director-General; so long as they retain their original intention they must, I think, be regarded as "unemployed" but they will nevertheless be denied eligibility to unemployment benefits. Any method which produced erroneous results of this magnitude is clearly unacceptable as a means open to the Director-General in satisfying himself as to the subject matter of s. 107 (c)(i). (at p467)
31. This must be the more so when other, conventional means of learning of applicant's intentions are not only open to him, but are in fact used by him; the "Record of Applications made for Employment" issued to school leavers itself contains a form of declaration to be made by applicants that "I will not be undertaking full time education or training in 1977", in the present case, the plaintiff made such a declaration. Such declarations the Director-General presumably disregards. In addition to such declarations, he could have regard also to the nature of the efforts by the school leaver to seek employment. The present case provides an example,the plaintiff's record card maintained by the Commonwealth Employment Service discloses that the plaintiff was seeking employment in itself quite inconsistent with an intention to resume studies in the succeeding school year, employment as an apprentice cook. (at p468)
32. The second criterion, that in sub-par.(iii) relating to the taking of steps to seek work, no doubt presents considerable scope for the giving of instructions by the Director-General to his delegates as to what is involved in "reasonable steps"; it does not, however, in my view, entitle him to impose a quite arbitrary time of almost three months before this criterion is to be regarded as having been complied with. It is arbitrary in two respects: it depends not at all upon matters relevant to the application-upon factors such as the range of available employment opportunities consistent with the applicant's qualifications, skills and general capacity, the current state of the employment market and the locality in which employment is being sought. Indeed, its duration is dictated by an entirely extraneous circumstance, the period which State education authorities happen to have fixed upon as the duration of school holidays in the State, a period which the evidence shows to differ from State to State, the effect of the Director-General's direction varying accordingly. Again, it is an exclusively temporal concept. No doubt some attention must be given to the element of time, the taking of reasonable steps may well require sustained activity over a given period; but even if a period of three months were to be thought of as reasonable, as to which I say nothing, it cannot be proper to impose such a period in the case of one class of applicants, those who leave school within twenty-eight days of the end of the school year, while imposing upon no other class of applicant any such requirement relating to a minimum period of job-seeking. (at p468)
33. The reason why the Director-General's requirement produces inappropriate results, which, when viewed in the light of the criteria in sub-par. (i) and (iii), can be seen to frustrate rather than aid in their application to school leavers, becomes apparent once it is appreciated that his requirement is not, in truth, concerned with the formation of a correct state of satisfaction of mind by him. What it is in fact concerned with emerges from par. 7.302 of the Manual, part of which I have already quoted. That paragraph first identifies the abuse to be guarded against, the improper payment of benefits to school leavers who are later found to have returned to school at the beginning of the next school year. This is an abuse because students, whether in term or on holidays, are ineligible for unemployment benefits. Then follows the statement of the remedy for this abuse, which begins with the words "As a general rule, therefore,..." and which goes on to prescribe the Director-General's requirement, the three month waiting period for school leavers. Such a requirement, specifically designed to cure a particular abuse, of its nature is unlikely to provide a satisfactory basis for the general determination of the eligibility of school leavers for unemployment benefits. (at p468)
34. The statement of the abuse in par. 7.302 in itself calls for some correction, arising from what I have said earlier about school leavers who change their intentions. The paragraph refers to school leavers who "for one reason or another have returned to their studies" on the resumption of school in the succeeding year. Where the reason is a change of intention, perhaps occurring shortly before the beginning of the new school year and perhaps induced by the inability to obtain employment, there is, in my view, initially, until that change occurs, no abuse to be cured; until the change of intention, the former student was "unemployed" within s.107 (c) (i). Only if he continues to receive unemployment benefit after that change, having failed to inform the Department of the change, will there be any abuse. (at p468)
35. It is, then, only where deceit has been practised upon the Director-General that there is an abuse to be prevented. It will, no doubt, often have involved the making of false or misleading statements, a matter dealt with by the penal provisions of s. 138 of the Act, which includes a power to order repayment of benefits procured by such statements. Presumably these have been found to be inadequate to deal with the matter. Whether or not this be so, the quite understandable desire to prevent what is seen as an abuse of the Act by dishonest school leavers cannot be made the occasion for disregarding the statutory criteria of eligibility in favour of a requirement which finds no place in the legislation and the effect of which is to deny, for almost three months, to the great body of honest school leavers an opportunity to qualify for unemployment benefits. (at p468)
36. If then, the Director-General, by his delegate, did apply an erroneous test in determining the ineligibility of the plaintiff to unemployment benefits during at least part of the period ending on 22nd February, 1977, what flows from this? (at p468)
37. For the plaintiff, it was urged that I should form my own conclusions as to the plaintiff's compliance with the requirements of s.107, that these should be in the plaintiff's favour, that I should then impute to the Director-General my own state of satisfaction under s.107 (c) and should accordingly declare the plaintiff to have been qualified to receive an unemployment benefit as from 27th December, 1976, being seven days after her application was rejected on 20th December, 1976. Even were I minded to find the necessary facts in her favour, as to which I say nothing, the course suggested is not, I think, one which is open to me. It is to the Director-General or his delegates that the legislation assigns the task of attaining satisfaction and the Court should not seek to usurp that function. The only authority which Counsel for the plaintiff cited as supporting such a course was the decision of Donovan J. in Hamilton v. West Sussex County Council, (1958) 2 Q.B. 286. That case is, in fact, no authority for the proposition which the plaintiff seeks to establish. All that his Lordship did in that case was to make good the failure of a planning authority to express approval which, the authority having already in fact satisfied itself that a development duly complied with the law, it had failed formally to convey to the developer because of its mistaken view of the law. (at p468)
38. If, as I find to be the case, the plaintiff's claim to unemployment benefit was not considered as s.107 contemplates that it should be, the plaintiff is, I think, entitled to some relief. But that relief does not extend so far as the plaintiff seeks to press it. (at p469)
39. On 20th December, 1976, the plaintiff made an application, a claim for unemployment benefit, and her qualification for benefit should then have been inquired into. What the delegate of the Director-General ought to have done, had he not been distracted from his task by the requirement laid down in the Manual, was to have applied his mind to the plaintiff's eligibility for unemployment benefit, testing it by reference to the criteria in s. 107 (c). Sub-paragraph (ii) would have occasioned him no difficulty; it would be upon the matters referred to in sub-pars. (i) and (iii) that attention would have had to be concentrated: whether the plaintiff was unemployed, involving the question of whether she had genuinely ended her school career and was seeking a place in the workforce, and whether she had taken responsible steps to obtain suitable work. If, on such material as she could then have placed before him, he would have been satisfied, that would then have been an end to the matter; if not, she could try again later on when she thought that she had made good defects in her material, as, for example by having made futher efforts to seek employment. (at p469)
40. It is declarations concerning what ought to have thus been the action of the Director-General in response to her claim made on 20th December to which I regard the plaintiff as entitled. For the defendants, it was said that no duty owed to the plaintiff was imposed upon the Director-General by the Act. With this was associated the submission that an unemployment benefit was no more than gratuity which, once granted, might be cancelled or suspended by the Director-General in his uncontrolled discretion - s. 131. The absence of any obligation imposed by the Act upon anyone to make payments of unemployment benefits was also relied upon and reference was made to authorities in the field of the assessment of damages, the most recent of which being National Insurance Co. of New Zealand Ltd. v. Espagne [1961] HCA 15; (1961), 105 CLR 569. These authorities were said by the defendants to support, and by the plaintiff to deny, the view that unemployment benefit is no more than a gratuity, to payment of which the plaintiff can have no rights enforceable at law. Equally, say the defendants, the plaintiff has no enforceable rights in relation to the manner in which the Director-General dealt with her claim to unemployment benefit under s. 107. (at p469)
41. In part, the defendants' submissions were in answer to claims to relief made on behalf of the plaintiff and which went far beyond such declarations as I have foreshadowed. To the extent, however, that they are put as a ground for denying her any right to such declarations they must, I think, be rejected. Her direct personal interest in due compliance by the Director-General with the requirements of s. 107 (c) is clear; upon it depends her eligibility for, and her prospect of obtaining of, unemployment benefits. She has what Megarry J. found wanting in Thorne Rural District Council v. Bunting, (1972) Ch 470, at p 477, a substantial interest recognized by the law; and if in fact she lacks a cause of action in the strict sense of that term that will not debar her from declaratory relief - Rediffusion (Hong Kong) Ltd. v. Attorney-General (Hong Kong), (1970) AC 1136, at p 1167. The power to give declaratory relief is, as Viscount Radcliffe observed in Ibeneweka v. Egbuna, (1964) 1 WLR 219 at p 224, conferred in wide and general terms, it is not excluded by the availability of an alternative remedy by way of certiorari - Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government, (1960) AC 260, per Lord Goddard at p 290 - and no different considerations should apply when mandamus might lie - see generally Zamir, The Declaratory Judgment (1962), at p 98 et seq. and De Smith, Judicial Review of Administrative Action, 3rd ed., 1973, pp 442, 465 and 490 et seq. In Forster v. Jododex Australia Pty. Ltd. (1972), 127 CLR 421, Gibbs J., with whom, in this respect, all other members of the Court agreed, examined in detail the extent of the jurisdiction to grant declaratory relief. What his Honour there said, including his reference to and his distinguishing of Toowoomba Foundry Pty. Ltd. v. The Commonwealth (1945) 71 CLR 545, I would regard as applicable to the present case. (at p469)
42. It was further urged on behalf of the defendants that the provisions of s. 15 of the Social Services Act should, as a matter of discretion, result in the refusal to relief to the plaintiff. That section confers upon a person affected by a determination of an officer other than the Director-General a right to appeal to the latter. Having regard to the nature of the determination, (if it was in truth such) which is here in question, a determination which did no more than reflect the instructions of the Director-General as to the disqualification of school leavers for unemployment benefits during school holidays, it may be that the determination of the delegate, that the plaintiff was not qualified should be regarded as in fact that of the Director-General. But in any event, the nature of the matter here in dispute, not at all concerned with the quality of a particluar exercise of discretionary power by an officer but rather with the validity of a general rule of administration adopted by the Director-General is such that I would not, as a matter of discretion, regard the existence of the right conferred by s. 15 as a reason for refusing declaratory relief. (at p469)
43. To make a declaration in the form proposed will not involve any element of futility, nor of retrospectivity. The fact that the plaintiff has now been recognized as qualified to receive unemployment benefits as from 22nd February, 1977, does not affect her complaint that prior to that date she was denied qualification for a reason which lacked statutory justification. There remains in question her eligibility before that date; should the Director-General, in conformity with my declaration, undertake a re-examination of the plaintiff's position and conclude that, on the facts then existing, she was in fact qualified as from some earlier date she will, no doubt, receive payment accordingly, but this will not involve, in any true sense, the making of a retrospective determination. (at p469)
44. I should advert to the effect of s. 132 (3) of the Act, to which passing reference has already been made; it reads: "Where payment of an instalment of a benefit has not been made within twenty-eight days after the day on which the instalment became payable, the instalment shall not (unless the Director-General, in special circumstances, otherwise determines) be paid". This sub-section only applies to delay in payment after an instalment "became payable". It can, I think, have no application in the present case since, unless and until the Director-General is satisfied as to the holiday-time entitlement of the plaintiff to unemployment benefits, no question of any benefit or any instalment becoming payable to her will arise. (at p470)
45. The writ by which the proceedings were instituted issued on 24th December, 1976, four days after the plaintiff's second visit to the Commonwealth Employment Service and before any payment would in any circumstances have been due to be paid to her by way of unemployment benefit. This is because a benefit only comes payable seven days after an applicant either becomes unemployed or makes a claim for unemployment benefit, whichever be the later-s.119 (1). The defendants contend that for this reason the proceedings are premature; so they might be, were they no more than proceedings for the recovery of moneys said to be due by way of benefit payments due and unpaid. However, the form of declaratory relief which I propose is not subject to any such objection; the plaintiff had been affected by the Director-General's general rule well before issue of her writ and was already, before its issue, entitled to complain of the denial of an opportunity to seek to satisfy the Director-General of her entitlement to unemployment benefits pursuant to s.107. (at p470)
46. It is for the foregoing reasons that I conclude that the plaintiff is entitled to declarations of the general nature already indicated. She is not, however, entitled to a declaration that she was, in respect of any period before 22nd February, 1977, qualified to receive unemployment benefits; any such qualification remains for determination by the Director-General or his delegates in the light of s.107 (c) and of the particular circumstances of the plaintiff at the time. It follows from this that there can be no present order or declaration as to entitlement to, or payment of any unemployment benefits to, the plaintiff in respect of the period before 22nd February, 1977. (at p470)
47. It remains only to dispose of the plaintiff's second claim, which is said to sound in damages for negligence on the part of the defendants in wrongly advising the plaintiff as to her rights. This claim was put in varying ways during the course of argument but, however expressed, cannot entitle her to relief in these proceedings. The plaintiff faces real difficulties in establishing either that, in reliance upon the defendants' negligent advice, she acted to her detriment (bearing in mind that only four days after that advice, her writ was issued with a full statement of claim signed by senior and junior counsel) or that she has in consequence suffered damage. But, more importantly, I am not satisfied, assuming for the moment (although without in any way so deciding) that there existed some appropriate duty of care owed by the defendants to the plaintiff, that the facts disclose any breach of that duty. In any event, this particular claim to relief was, as I understand it, put forward only because of apprehension lest, being found entitled to payment of some money sum, the plaintiff might then find herself deprived of the right to payment of it by the operation of s.132 (3) of the Act. The view which I have already expressed concerning the operation of that provision disposes of that fear. Accordingly, I make no order as to relief in respect of that claim. (at p470)
48. The declarations to be made fall considerably short of those sought by the plaintiff in her amended statement of claim. I have prepared declarations in draft form; they will be available to the parties and I will be prepared to hear any submission as to the precise form they should ultimately take. (at p470)
# Green
Daniels \[1977\] HCA 18;
(1977) 13 ALR 1
(1977) 51 ALJR 463
(1945) 71 CLR 545