1. The plaintiff's Statement of Claim is struck out as disclosing no reasonable cause of action. If the parties do not relist the matter within seven days to make submissions on the question of costs, I order the plaintiff to pay the defendant's costs of the proceedings as agreed or assessed.

1. On 2 August 2011 the plaintiff, Karen McColley commenced proceedings in this Court claiming damages from the defendant, the Commonwealth of Australia, based on alleged negligence by the defendant.

2. The plaintiff is the widow of Gary Robert McColley (the deceased) who died on 5 July 2008 in tragic circumstances. In these proceedings the plaintiff claims damages against the defendant in negligence, and further claims damages for the beneficiaries and/or members of the deceased's family as the personal representative of the deceased.

3. The plaintiff alleges that prior to his death the deceased suffered from a psychiatric illness and received a disability pension pursuant to the Veterans' Entitlement Act 1986 (Cth) (the VEA) from the Commonwealth Department of Veterans Affairs (the DVA). She alleges that on 23 October 2006 the DVA told the deceased that he was being investigated in relation to the payment of his disability pension. Between 23 October 2006 and the deceased's death on 5 July 2008 the DVA conducted an investigation in relation to the deceased's entitlement to disability pension. The investigation was initiated after an anonymous, oral complaint was received by the DVA. The plaintiff alleges that as a result of this investigation the deceased suffered an injury, or suffered an aggravation of injury, which led to him taking his own life on 5 July 2008. The plaintiff alleges that the investigation by the DVA was negligent.

4. The particulars of negligence pleaded by the plaintiff fall into two broad categories. First, the plaintiff says that the defendant was negligent in investigating the deceased's entitlement to receipt of the disability pension without any evidence to support such an investigation, and/or without a written complaint being made. Thus, the plaintiff complains that the initial decision to conduct an investigation was negligent. The remaining particulars of negligence complain of the manner in which the investigation was conducted. For example, the plaintiff alleges that the defendant was negligent in failing to complete the investigation within a reasonable time when the DVA knew, or ought to have known, that the length of the investigation was causing injury, or aggravation of an injury, to the deceased and that the defendant had failed to adhere to the principles of natural justice in conducting the investigation.

5. The defendant has applied for orders that the Statement of Claim in this matter be stuck out on the grounds that it discloses no reasonable cause of action: see Rule 425 (1) (a) of the Court Procedures Rules 2006. The defendant also seeks an order that the plaintiff pay the defendant's costs of and incidental to the action including the costs of and incidental to the application to strike out.

6. The defendant does not dispute that these proceedings are able to be brought by the plaintiff pursuant to the provisions of the Civil Law (Wrongs) Act 2002 (ACT) and the Court Procedures Rules 2006.

7. There is no dispute about the principles that apply to an application of this type. They are conveniently set out by Jagot J in Galovac Pty Limited v Australian Capital Territory [2010] ACTSC 132:

(1) The party seeking summary judgment faces a "very high threshold" (Financial Integrity Group Pty Limited v Farmer [2009] ACTSC 143 at 12).

(2) The lack of a cause of action must be "clearly demonstrated" (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129).

(3) The procedure calls for "exceptional caution" (General Steel at 129).

(4) The necessity for argument, even extensive argument, is no bar. However, as soon as it appears that there is a "real question" to be determined on which relief depends, the summary judgment procedure is not available (General Steel at 130 citing Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91).

(5) Mere implausibility of the claim or improbability of success is insufficient; there must clearly be no real question to be tried in the sense that the claim is bound to fail (Seven Network Ltd v News Ltd (No 4) [2005] FCA 244; (2005) 214 ALR 686 ... citing Lonrho Plc v Fayed (No 2) [1992] 1 WLR 1 (Ch D) at 5 ...).

(6) The application is to be assessed on the assumption that every fact pleaded by the plaintiff is true (West v State of New South Wales [2007] ACTSC 43 at [9]).

(7) The application must be determined on the substance, not the mere form or expression, of the claim (Financial Integrity Group at [15]).

8. In Carlisle v Filaria Pty Limited & Ors [2002] ACTSC 33 Crispin J expressed the test in this way:

16. The test that must be applied when a defendant seeks to have a pleading struck out on the ground that it discloses no reasonable cause of action is a stringent one. It must be demonstrated that the pleading is defective in substance and not merely in the manner in which the claim has been stated: Republic of Peru v Peruvian Guano Co (1887) 36 Ch D 489 at 496. Furthermore, the claim must be clearly untenable. The authorities reveal a profusion of different formulations. Butterworths' loose leaf service Civil Procedure ACT, lists the following, at paragraph 8915.5:

"Cases which are plain and obvious": Hubbuck & Sons Ltd v Wilkinson Heywood & Clark Ltd [1899] 1 QB 86 at 91; "obviously unsustainable": Attorney-General for the Dutchey of Lancaster v London & North Western Railway Co [1892] 3 Ch 274 at 277; "so obviously untenable it cannot possibly succeed": Burton v Shire of Bairnsdale ([1908] HCA 57; 1908) 7 CLR 76 at 92; Reed International Books Australia Ltd (t/as Butterworths) v King and Prior Pty Ltd (1993) 44 FCR 587 at 592; 11 ACSR 560 at 565; General Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130; "so manifestly faulty that it does not admit of argument": Wall v Bank of Victoria Ltd [1890] VicLawRp 2; (1890) 16 VLR 2 at 4; "plain and obvious": William Charlick Ltd v Smith [1922] SASR 364 at 367; Arbon v Anderson [1942] 1 All ER 264 at 266; "clear beyond all doubt": Kellaway v Bury (1892) 66 LT 599 at 602; Woods v Wilson (1902) 19 WN (NSW) 147 at 148; "palpably and unmistakably bad": Hill v Scott (1892) 8 WN (NSW) 98 at 99; "obviously and almost incontestably bad": Dyson v Attorney-General [1911] 1 KB 410 at 414, 419; Murex Diagnostics Australia Pty Ltd v Chiron Corporation [1995] FCA 1040; (1995) 128 ALR 525 at 538; "a clear decision that could not be altered by any evidence that could be adduced at trial": Dey v Victorian Railway Commissioner [1949] HCA 1; (1949) 78 CLR 62 at 85; "unarguable": Nagle v Fielden [1966] 2 QB 633 at 651; [1966] 1 All ER 689 at 697; "something worse than demurrable": Walters v Sunday Pictorial Newspapers Ltd [1961] 1 WLR 967; [1961] 2 All ER 758; Republic of Peru v Peruvian Guano Co Ltd (1887) 36 Ch D 489 at 496; "manifestly groundless" and "discloses a case which the court is satisfied cannot succeed": General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129.

9. In hearing such an application, the court may determine substantial matters of law: Mathaman & ors v Nabalco Pty Ltd & anor (1969) 14 FLR 10. It is, of course, important to ensure that a plaintiff is not improperly deprived of the opportunity to have their case properly tried: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130.

10. By reference to s 24 of the Civil Law (Wrongs) Act, the defendant submits that in order for the plaintiff to succeed she must prove that the deceased's death was caused by a wrongful act of omission on the part of the defendant, and that, if death had not resulted, the act or omission would have entitled the deceased to recover damages in an action for personal injury, in this case being an action for physical and psychiatric injury.

11. The defendant identifies the primary legal issue as being whether or not the Commonwealth, through officers of the DVA, owed a duty of care to the deceased in carrying out an investigation into his entitlement to receive his veterans' pension. The defendant submits that relevant officers of the DVA did not owe a duty of care to the deceased, or to the plaintiff, on the basis that any such duty would be incompatible with other duties owed by the relevant officers of the DVA, and in particular, their duty to investigate fraud and ensure that public monies are only extended to those who are lawfully entitled to them.

12. The defendant submits that the pleadings filed by the plaintiff do not disclose a cause of action. It says that there could be no duty of care owed by it to the plaintiff in the circumstances alleged in the plaintiff's pleading. It says that this is so because such a duty of care would be inconsistent with the proper and effective discharge of the statutory duties of those officers involved in investigating the legitimacy of the entitlement of the deceased to receive a pension under the VEA. Further, to the extent that the particulars of negligence pleaded by the plaintiff refer to a denial of natural justice, the defendant submits that the law has not recognised a cause of action for damages for denial of procedural fairness in the exercise of statutory powers. Finally, the defendant submits that the duty pleaded by the plaintiff raises questions of compatibility and coherence with administrative law.

13. The plaintiff submits that the defendant was required to take reasonable steps to avoid foreseeable damage or injury to the plaintiff in the course of its investigation of the deceased for alleged fraud in connection with a pension paid under the VEA. She submits, by reference to Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215, that the Commonwealth generally owes a duty of care in the exercise of its functions. She submits that a fraud investigation by the DVA appears to be an executive, rather than a statutory function. She makes this submission on the basis that the VEA makes no provision for an investigation after a pension has been granted. The plaintiff submits that executive conduct can give rise to tortious liability: see Northern Territory of Australian v Mengel (1995) 185 CLR 307. The plaintiff further submits that applying the approach to determining whether a duty of care exists as set out in Caltex Refineries (QLD) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649, there are real questions to be determined at the hearing of these proceedings, including:

(a) In what circumstances (if any) does the Commonwealth, exercising its executive rather than statutory functions, owe a duty of care towards persons in respect of whom those functions are exercised?

(b) In view of those circumstances (and in particular any "salient features" which effect the existence of a duty of care), is a duty of care generally owed by the Commonwealth to persons who are the subject of a DVA fraud investigation?

(c) Were the particular circumstances and relationship between the deceased and the DVA such as to alter that general position?

14. The plaintiff referred me to the decision of Gummow and Hayne JJ in Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at [149]:

149. An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multifaceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial. It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute.

(footnotes omitted)

15. Subsequently, in Caltex Refineries at [102] to [103] Allsop P, with whom Simpson J agreed, suggested the following approach be taken in determining whether a duty of care exists:

102. This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstances a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the "salient features" or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.

103. These salient features include:

(a) the foreseeability of harm;

(b) the nature of the harm alleged;

(c) the degree and nature of control able to be exercised by the defendant to avoid harm;

(d) the degree of vulnerability of the plaintiff to harm from the defendant's conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;

(e) the degree of reliance by the plaintiff upon the defendant;

(f) any assumption of responsibility by the defendant;

(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;

(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;

(i) the nature of the activity undertaken by the defendant;

(j) the nature or the degree of the hazard or danger liable to be caused by the defendant's conduct or the activity or substance controlled by the defendant;

(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;

(l) any potential indeterminacy of liability;

(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;

(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one's own interests;

(o) the existence of conflicting duties arising from other principles of law or statute;

(p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and

(q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.

16. Both parties referred me to the High Court decision of Sullivan v Moody (2001) 207 CLR 562. The first plaintiff in that case was accused of sexually abusing his young daughter based on the opinion of the defendant, a medical practitioner employed at the Sexual Assault Referral Centre at the Queen Elizabeth Hospital in South Australia. Steps were taken by relevant government authorities to ensure that the plaintiff did not have access to his daughter. The allegations were pursued in proceedings in the Family Court which were resolved in the plaintiff's favour. He then commenced proceedings in the Supreme Court of South Australia claiming that those who conducted the examination of his daughter at the Queen Elizabeth Hospital owed him a duty of care and had been negligent in conducting their examination. At first instance his claim was struck out, and an appeal to the Full Court was unsuccessful.

17. The second plaintiff was the father of a young boy, and he also was accused of sexually abusing his child based upon an examination conducted by a medical practitioner at the Sexual Assault Referral Centre at the Queen Elizabeth Hospital. Other children of the second plaintiff were also interviewed and the medical practitioner formed the opinion that there was a strong possibility that they too had been subjected to sexual abuse. The second plaintiff was charged with offences against one of the children, which were later withdrawn by the Crown. The second plaintiff also commenced proceedings alleging negligence on the part of the medical practitioner who examined his children. At first instance the claim was struck out as failing to disclose a cause of action, and an appeal to the Full Court was unsuccessful. Both plaintiffs appealed, by leave, to the High Court.

18. Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ delivered a joint judgment dismissing the appeals, and in doing so rejected any notion that forseeability of the harm alleged, by itself, founded a duty of care to avoid such harm at [42]:

42. ... A defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care.

55. More fundamentally, however, these cases present a question about coherence of the law. Considering whether the persons who reported their suspicions about each appellant owed that appellant a duty of care must begin from the recognition that those who made the report had other responsibilities. A duty of the kind alleged should not be found if that duty would not be compatible with other duties which the respondents owed.

20. The High Court noted that a similar problem had arisen in other cases. For example, in Hill v Chief Constable of West Yorkshire [1989] AC 53, the House of Lords rejected the proposition that police officers owed a duty of care to members of the public who may suffer injury through the activities of a criminal where police have been careless in their efforts to apprehend the criminal. In the leading judgment Lord Keith of Kinkel, with whom Lord Brandon of Oakbrook, Lord Oliver of Aylmerton and Lord Goff of Chieveley agreed, remarked that it was against public policy to impose a common law duty of care on police in their investigation of alleged crime, citing the deterrent effect the posited duty may have on their investigations, noting at p 63, "such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion ...", such as the most advantageous way to deploy resources.

21. Their Honours also referred to the decision of the Privy Council in Yuen Kun Yeu v Attorney-General of Hong Kong [1988] AC 175 where it was held that a regulatory authority did not owe a duty of care to corporate depositors. The decision of the Privy Council was based upon a finding at p 196 that the relevant legislation underpinning the regulatory authority "... placed a duty on the commissioner to supervise deposit-taking companies in the general public interest, but no special responsibility towards individual members of the public." The Privy Council thought, however, that there was much force in the argument that it would be contrary to public policy to impose a duty of care towards the plaintiff on the regulatory authority at p 198:

... if the commissioner were to be held to owe actual or potential depositors a duty of care in negligence, there would be reason to apprehend that the prospect of claims would have a seriously inhibiting effect on the work of his department. A sound judgment would be less likely to be exercised if the commissioner were to be constantly looking over his shoulder at the prospect of claims against him, and his activities would be likely to be conducted in a detrimentally defensive frame of mind. In the result, the effectiveness of his functions would be at risk of diminution. Consciousness of potential liability could lead to distortions of judgment. In addition, the principles leading to his liability would surely be equally applicable to a wide range of regulatory agencies, not only in the financial field, but also, for example, to the factory inspectorate and social workers, to name only a few. If such liability were to be desirable upon any policy grounds, it would be much better that the liability were to be introduced by the legislature, which is better suited than the judiciary to weigh up competing policy considerations.

22. The High Court in Sullivan v Moody also referred to the decision of the House of Lords in X (Minors) v Badfordshire County Council [1995] UKHL 9; [1995] 2 AC 633 where Lord Brown-Wilkinson said at p 739, "... a common law duty of care cannot be imposed on a statutory duty if the observance of such a common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties."

23. After considering these cases, the High Court said at [60]:

The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.

24. In Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 the driver of a motor vehicle which had been involved in a collision claimed damages from investigating police for a psychotic condition she developed after being advised that police had wrongly recorded in their records that she had a blood alcohol level of exceeding the prescribed concentration at the time of the collision. She brought proceedings against the State, claiming it was vicariously liable for the negligent conduct of the police officer who had erroneously completed the accident report. The defendant State was unsuccessful at first instance, but on appeal the Court of Appeal held that no duty of care was owed to the plaintiff, and set aside the judgment. On appeal to the High Court, it was held (by Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ) that the duties of the investigating police were inconsistent with them owing a duty of care to the plaintiff.

25. I have already referred to the matters of Graham Barclay Oysters Pty Ltd v Ryan and Caltex Refineries (QLD) Pty Ltd v Stavar. These cases speak of the need to consider the "salient features" of the relationship between the DVA and the deceased in order to determine whether the DVA owed the deceased a duty of care, including whether such a duty would be inconsistent with other duties owed by the DVA arising from other principles of law or statute.

26. Finally, the plaintiff referred me to the decision of Sleight DCJ in Upon v Centrelink [2009] WADC 116, where the District Court of Western Australia refused cross-applications for summary judgment. The plaintiff in that case claimed damages for nervous shock suffered as a result of delay in assessing and then reviewing his claim for Newstart Allowance. Of relevance to the present case is the fact that the defendant's application for summary judgment on the grounds that it owed him no duty of care in assessing his application for benefits, or reviewing decisions that he was not immediately eligible for benefits, was refused on the grounds that Sleight DCJ considered the law governing the claim to be sufficiently unclear as to permit the claim to go to trial.

27. The plaintiff submits that in the present case the salient features relative to determining whether a duty of care on behalf of the defendant existed towards the deceased are:

(a) foreseeability of harm and, in particular, the DVA possessed actual or constructive knowledge that psychiatric harm was occurring and that the deceased had suicidal tendencies;

(b) the control able to be exercised by the DVA to avoid harm to the deceased, and in particular its ability to carry out an investigation of the deceased in a manner which did not involve the defects set out as particulars of negligence in the Statement of Claim;

(c) the deceased's vulnerability to harm from the DVA conduct, arising from:

(i) the fact that it was the DVA conducting the investigation, such that the deceased was at the mercy of the process and was unable to protect his own interests; and

(ii) the status of the plaintiff as a disability pensioner who had an existing psychiatric illness and suicidal tendencies, such that his capacity to protect himself was necessarily greatly reduced;

(d) the pre-existing and proximate relationship between the deceased and the DVA arising from his receipt of a disability pension from the DVA as a result of his psychiatric illness; and

(e) the absence of indeterminate liability, as the duty of care contemplated by the Statement of Claim would be owed only to those under investigation by the DVA for possible pension fraud, which is a narrow and specific class of persons.

28. The plaintiff therefore submits that her claim cannot be said to be "manifestly groundless" or "so obviously untenable that it cannot succeed", and the claim should accordingly be permitted to go to trial.

29. The relationship between the deceased and the defendant was defined by the terms of the VEA. The only relationship between them, as pleaded by the plaintiff, was that the deceased was the recipient of a pension paid by the defendant by virtue of the provisions of the VEA. The long title to the VEA is:

An Act to provide for the payment of pensions and other benefits to, and to provide medical and other treatment for, veterans and certain other persons, and for other purposes

30. An examination of the structure of the VEA confirms the accuracy of the objects of the VEA as set out in the long title. The VEA defines those classes of persons entitled to pensions and benefits, and the nature and level of their entitlements. To that extent it may be thought that the VEA is an Act directed towards specified classes of people, rather than the public at large. However, this is not the whole story. The funds administered by the DVA and expended under the VEA are public funds allocated for that purpose by the Federal Parliament. I do not doubt that those holding office under the executive have a duty to the Parliament, and through it to the people of Australia, to ensure that public funds are expended for the purpose for which they are provided, and consistent with the provisions of any statute under which they are expended.

31. In the present case, the duty imposed on the DVA, and its servants and agents, is to ensure that monies expended under the VEA are expended in accordance with the terms of that Act, and received by those entitled to receive them. Such a duty must encompass a right, and a duty, to investigate claims that monies are being obtained fraudulently, or by those not entitled to them. Counsel for both the plaintiff and the defendant agreed that public servants, and in particular those administering the VEA, have such a duty, although the plaintiff would argue that the duty does not arise from statute (the VEA being silent on the question of investigation of alleged fraud by a benefit recipient), but arises from exercise of executive power, whereas the defendant identifies the duty arising from the provisions of the VEA. In my opinion, the origin of the duty is not significant.

32. This issue was considered in Gruber BHNF Gruber v Backhouse & ors [2003] ACTSC 18, where Connolly J held that a psychologist retained by the Australian Federal Police to advise them whether the plaintiff, a suspect with respect to a serious crime, was fit to be interviewed, did not have a duty of care towards the suspect. The psychologist was not a police officer, and the question arose whether cases such as Tame v New South Wales and Wilson v State of New South Wales [2001] NSWSC 869; (2001) 53 NSWLR 407, which concerned the duty of care owed by investigating police, could be distinguished on that basis. Connelly J said at [41]:

Mr Backhouse was not a police officer, but he was an employee of the Australian Federal Police engaged in his duties. It seems to me that in this respect he is in a similar position as a police psychologist to other professionals who are engaged by a police service to assist investigating officers. It would be incongruous if an action lay against a civilian police employee who, say, negligently failed to notice that a fingerprint did not match when an action would not lie if the person was a sworn police officer. The public policy basis for the absence of the duty of care does not turn on the status of the person as a sworn police officer, but rather on the nature of the public duty being exercised by the police service. Similar public policy considerations have lead to the decision that no action lies against a prosecution lawyers: Mensinga v DPP

33. In my opinion it would be equally incongruous if a public authority charged with undertaking functions akin to those undertaken by a police officer, such as the investigation of alleged fraud, were to be held liable in an action brought by a suspect where a police officer would not. The public policy basis for the absence of a duty of care on the part of police to suspects is not, as observed by Connelly J, based upon the particular status of police. What dictates the absence of a duty of care is the nature of the public duty exercised by police, and the incompatibility of that duty with a duty of care towards a suspect. This principle must apply equally to all charged with a public duty of investigating alleged crime. Investigators within the public service frequently perform similar, if not identical, investigatory functions to police, and the same policy considerations relevant to determining whether a police officer owes a duty of care to a suspect in investigating alleged crime apply equally to public service investigators.

34. In my opinion the decision in Upton v Centrelink [2009] WADC 116 does not assist the plaintiff. The functions undertaken by officers of the defendant in that matter (Centrelink) were in no way akin to the investigatory function undertaken by officers of the DVA in the present case. Secondly, Sleight DCJ did not determine that Centrelink owed the plaintiff in that case a duty of care to make a decision expeditiously, but simply declined to preclude the plaintiff from pursuing such a claim. The decision, therefore, does not stand for the proposition that government employees, such as officers of the DVA, have a duty of care to make decisions concerning claims for benefits, or review of such claims, expeditiously. Finally, the decision of the Federal Court (Beaumont, French and Finkelstein JJ) in Scott v Secretary, Department of Social Security [2000] FCA 1241 contains strong dicta that in the circumstances of an application for benefits under a statutory scheme, common law damages cannot be claimed merely for failure to act with due expedition.

35. Even accepting that those who, on behalf of the defendant, conducted the investigation into the entitlement of the deceased to receive a benefit under the VEA were aware of the deceased's mental instability and the possibility that he may self-harm, there could be no duty of care towards the deceased by those investigating his entitlements because such a duty is incompatible with their duty to investigate.

36. I am also satisfied that the posited duty of care would not be coherent with the statutory scheme put in place by the VEA. That Act provides for applications for review of unfavourable decisions made pursuant to the VEA in cases of application for, or review of, entitlements: see State of New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371.

37. Finally, to the extent that the plaintiff's claim for damages is based upon a denial of natural justice, the claim cannot succeed. The law has never recognised a cause of action for damages for denial of procedural fairness in the exercise of either statutory or prerogative power: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 45, per Deane J.

38. The plaintiff's Statement of Claim is struck out on disclosing no reasonable cause of action. This is not a case where the defect in the pleadings can be cured by amendment. Unless the parties relist the matter within seven days to make submissions as to costs, I order that the plaintiff is to pay the defendant's costs of the proceedings as agreed or assessed.

I certify that the preceding thirty eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Counsel for the plaintiff: Mr G Stretton SC with Mr D Stretton

Veterans' Entitlement Act 1986(Cth)

Law (Wrongs) Act 2002

Procedures Rules 2006

Veterans' Entitlement Act 1986(Cth)

Law (Wrongs) Act 2002

Procedures Rules 2006

McColley v Commonwealth of Australia [2012] ACTSC 154

At a glance

Court

Decision date

Before

Source

Judgment (80 paragraphs)

McColley v Commonwealth of Australia [2012] ACTSC 154 (25 October 2012)

Parties

Legislation Cited (6)

Cases Cited (15)