Ibarcena v Templar

EX TEMPORE REASONS FOR JUDGMENT 1 I have before me a notice of motion to dismiss an application under O 20 r 2 of the Federal Court Rules on the grounds that it discloses no reasonable cause of action and that the proceeding is otherwise frivolous, vexatious and abuse of process of the Court. The motion is filed in respect of an application bought by Jeremy Patrick Ibarcena against sixteen respondents - the first of whom is a former occupant of the office of Commissioner for Housing for the Australian Capital Territory; the third is the Commissioner for Housing of the Australian Capital Territory, a statutory authority; the fourteenth is the Minister for Urban Services for the Australian Capital Territory and he is responsible for the administration of the Housing Assistance Act 1987 (ACT) to which I will refer. The remaining respondents, with the exception of the eighth (who is either misdescribed or non-existent) were at relevant times employees of the Australian Capital Territory Government Services. 2 The application arises out of the relationship between Mr Ibarcena and the various respondents in respect of Mr Ibarcena's request for housing assistance in the Australian Capital Territory and his dealings with officers and agencies of the Territory in consequence of that. He makes a large number of complaints alleging violations of his rights, misuse of public power, invasions of privacy, coercion etc. 3 The application itself makes a variety of claims against groups of the respondents or against individual respondents. The actual relief sought is simply to ask the Court to find every respondent "responsible for misfeasance conduct and face the consequences". Of itself, that of course does not disclose any claim for relief of a type of which this Court could take cognisance, although I would not regard that as being fatal as of course to the application. It was pointed out to Mr Ibarcena when the matter was first raised in this Court at a Directions Hearing that it was questionable whether this was a proceeding in respect of which this Court's jurisdiction was being properly invoked. The substance of the complaints actually relates to the conduct of public administration in the Territory. And the essence of the conduct complained of would appear to raise issues more appropriate to be dealt with in the Supreme Court of the Territory. I express no views at all on that conduct. 4 When put in its amended form, the application raised five Commonwealth statutes as grounding this Court's jurisdiction in the matter. These statutes were variously the Housing Assistance Act 1989 (Cth), the Housing Assistance Act 1996 (Cth), the Privacy Act 1988 (Cth), the Statutory Declarations Act 1959 (Cth) and the Trade Practices Act 1974 (Cth). 5 Mr Ibarcena, in his amended claim, alleges breaches of the provisions of the Housing Assistance Acts in a number of respects. What is clear about those two statutes is that their object is to put into effect an inter-governmental agreement between the Commonwealth and the States, including the ACT, relating to provision of financial assistance to the States for the provision of housing assistance in accordance with principles enumerated in preambles to, and in the text of, the various agreements which those statutes are designed to have implemented. Mr Ibarcena's complaints are that the various stipulations contained in the statutes and agreements have not been complied with in his case. And for that reason he seeks relief in this Court. 6 The respondent who has brought on the notice of motion (that is the fourteenth respondent in these proceedings, the Minister) has submitted that the statutes, or any agreements put into effect between the Commonwealth, the State or the Territory pursuant to them, do not grant any enforceable right to a recipient of assistance as against the State in question. The respondent goes on to submit that, though legislative in form, such is the character of these Acts and agreements that such remedy as may arise for non-compliance with the provisions of them accrues to the benefit only of the party to the agreement. And that remedy, moreover, is political rather than legal in character. 7 It is clear that the statutes on their face do not purport to confer any third party cause of action and it would be surprising if they did, given the purpose of them. While Mr Ibarcena complains of the treatment he has received relative to the standards stated in the agreements, it is clear beyond argument, in my view, that any breach of the agreements or of the statutes would not give rise to any cause of action in a member of the public who happened to be a recipient of assistance from the State, against that State. In so far then, as the applications rely upon breaches of either of the Housing Assistance Acts they do not disclose a cause of action. 8 Mr Ibarcena makes complaints of breaches of the Information Privacy Principles of the Privacy Act 1988 (Cth) on a number of bases. He has, I understand, subsequently made a complaint to the Privacy Commissioner in respect of his complaints under the Privacy Act. But no proceeding has been brought in this Court relating to the actions of the Privacy Commissioner, consequent upon those complaints. Mr Ibarcena has sought, in this application, to invoke the jurisdiction of this Court directly. The respondent has submitted, in relation to this, that no action lies directly in this Court for breaches of the Privacy Act, save under the provisions of the Privacy Act itself or, I would add, if another statute allows for challenge to be made. 9 That argument undoubtedly is correct for the purposes of the present case. Mr Ibarcena may have proper ground for complaint against the Privacy Commission in respect of his dealings with the complaint made to him. About that matter, I express no opinion. What is clear though, is that Mr Ibarcena cannot simply allege a breach of an Information Privacy Principle of the Privacy Act for the purpose of enlivening this Court's jurisdiction and for the grant of relief. 10 Insofar as the Trade Practices Act allegations are concerned, they are not particularised in a fashion that would readily admit of one ascertaining what the actual grounds of complaint are. Nonetheless, the complaints seem to be that the second respondent, an employee in the service of the Australian Capital Territory Government, is alleged to have engaged in conduct that is unconscionable within the meaning of Pt IVa of the Trade Practices Act although it is difficult to discern from the application which particular section of Pt IVa is being relied upon. It is alleged the second respondent was guilty of harassment and coercion under s 60 of the Trade Practices Act. 11 The second respondent I would note is not a corporation engaged in trade or commerce but I will pass that point by. What seems to be the case is that in taking whatever actions were taken by Mrs McGinn, she was acting on behalf of the second respondent and the second respondent is a statutory authority of the Australia Capital Territory incorporated for a public purpose and has been held to be entitled to Crown immunity. It is not bound by Part IVa of the Trade Practices Act. 12 The remaining statute relied upon by Mr Ibarcena is the Statutory Declarations Act 1959 (Cth). Complaint made in this respect is that an official would not accept, without the further provision of information, the contents of a statutory declaration for the purpose of discharging that official's duties of office. Whatever complaints may be made about that, the non-acceptance of the statutory declaration does not of itself disclose a cause of action such as would entitle Mr Ibarcena to relief in these proceedings. 13 Additionally to the above statutory-based claims, there would appear at least arguably to be raised a number of common law matters. Complaint would appear to be raised about a disputed debt. This Court clearly is not the appropriate forum in which that matter is to be ventilated. Equally, the application generally could be said to raise allegations of the tort of misfeasance in public office against some number of individuals. None of those individuals are, however, officers of the Commonwealth. They are all officers of the Territory. As such, this Court does not have original jurisdiction in relation to that tort and again is without jurisdiction in the matter. 14 In the circumstances, the only course available to me is to accede to the fourteenth respondent's notice of motion. The application does not disclose any reasonable cause of action that can be recognised in this Court and in some matters the Court simply does not have original jurisdiction. It is necessary to say by way of conclusion, that it is unfortunate that this proceeding has had to reach this point. 15 I have attempted on a number of occasions to point out to Mr Ibarcena that, whatever complaints he may have about the conduct of the respondents, they are not complaints that properly can be made in this particular Court. 16 In the circumstances, then, I will dismiss the application and order that the applicant pay the costs of the fourteenth respondent I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.