Application to reopen
174 On 9 October 2009, Mr and Mrs Scott filed a notice of motion in this proceeding seeking:
1. The present proceeding be join with the proceedings Scott v Secretary, Department of Social Security VG 69/1997 Scott v Pedler V 652/2001 and/or Scott v HREOC VID 976/2007 pursuant to Order 35, Rule 1 of the Federal Court Rules;
and/or
2. The proceedings Scott v Secretary, DSS VG 69/1997, Scott v Pedler V 652/2001 and/or Scott v HREOC VID 976/2007 be reopen and the judgments in these proceedings be set aside pursuant to Order 35, Rule 1 and/or Rule 7(2)(e) of the Federal Court Rules;
175 When Mr and Mrs Scott came to amend the application on 27 April 2010, they included a claim for relief in similar terms to the above paragraphs 1 and 2 of the notice of motion.
176 The application to reopen forms part of the application to the Court in respect of which the Commonwealth has applied for orders dismissing the proceeding. Thus, the question is whether Mr and Mrs Scott have a reasonable prospect of successfully prosecuting the application to reopen.
177 For this relief Mr and Mrs Scott rely on O 35 r 1, O 35 r 7(2)(e) of the Federal Court Rules, and on the view of Mason CJ in Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 (Autodesk).
178 Order 35 r 1 provides:
The Court may, at any stage of any proceedings, on the application of any party, pronounce such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that order in any originating process.
179 This rule operates within a proceeding to allow the Court to make orders which the nature of the case requires. It allows the Court to grant relief in appropriate cases even though the applicant has not made a claim for that relief. But the rule does not allow a Court in a later proceeding to rehear an earlier proceeding and make orders in the later proceeding in place of the orders originally made. The rule therefore has no application in the present circumstances.
180 Order 35 r 7(2)(e) provides:
(2) The Court may vary or set aside a judgment or order after the order has been entered where:
(e) the order does not reflect the intention of the Court;
181 This rule applies when the orders made in a proceeding do not reflect the intention of the Court: Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558; Fang v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 121. Again it does not apply to the judgments in the previous litigation brought by Mr and Mrs Scott. The orders made in those cases are consistent with the reasoning in each of the judgments.
182 In Autodesk Mason CJ said at [2] - [4]:
2. … The exercise of the jurisdiction to reopen a judgment and to grant a rehearing is not confined to circumstances in which the applicant can show that, by accident and without fault on the applicant's part, he or she has not been heard. It is true that the jurisdiction is to be exercised with great caution ((2) Wentworth v. Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672, at p 684; State Rail Authority of N.S.W. v. Codelfa Construction Pty. Ltd. [1982] HCA 51; (1982) 150 CLR 29, at p 38.), having regard to the importance of the public interest in the finality of litigation. It is equally true, as this Court said in Wentworth v. Woollahra Municipal Council ((3) (1982) 149 CLR, at p 684), that:
"(g)enerally speaking, it will not be exercised unless the
applicant can show that by accident without fault on his part he
has not been heard."
3. But these statements do not exclude the exercise of jurisdiction to reopen a judgment which has apparently miscarried for other reasons, at least when the orders pronounced have not been perfected by the taking out of formal orders…
4 … the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasised that the jurisdiction is not to be exercised for the purpose of reagitating arguments already considered by the court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.
[emphasis added]
183 Mr and Mrs Scott rely on this view to argue that the Courts in Scott v Secretary, Department of Social Security, Scott v Pedler and Scott v HREOC misapprehended the facts and the law and consequently the judgments in each of those cases should be set aside and the cases be reopened.
184 Order 35 r 7 of the Federal Court Rules regulates the power of this Court to set aside judgments and orders. It provides:
(1) The Court may vary or set aside a judgment or order before it has been entered.
(2) The Court may vary or set aside a judgment or order after the order has been entered where:
(a) the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default and whether or not the absent party had notice of the motion for the order;
(b) the order was obtained by fraud;
(c) the order is interlocutory;
(d) the order is an injunction or for the appointment of a receiver;
(e) the order does not reflect the intention of the Court; or
(f) the party in whose favour the order was made consents.
(3) A clerical mistake in a judgment or order, or an error arising in a judgment order from an accidental slip or omission, may at any time be corrected by the Court.
(4) Subrule (2) shall not affect the power of the Court to vary or terminate the operation of an order by a supplementary order.
[emphasis added]
185 Order 35 r 7(1) concerns judgments or orders which have not been entered: AB v Federal Commissioner of Taxation (1998) 157 ALR 510 at 515. It provides for a wide discretion which, however, must be exercised judicially. The approach articulated in Autodesk relates to the exercise of such a power. That was a case in which the judgment had not yet been entered: Smith v New South Wales Bar Association (1992) 108 ALR 55 at 60.
186 A search of the Court files discloses that judgment has not been entered in Scott v HREOC. Consequently, O 35 r 7(1) and the approach taken in Autodesk is applicable to that case.
187 The Court files also show that the judgments have been entered in Scott v Secretary, Department of Social Security and Scott v Pedler both at first instance and on appeal. That circumstance is governed by O 35 r 7(2) which sets out a series of defined circumstances in which the Court is empowered to set aside final orders.
188 Mr and Mrs Scott rely on O 35 r 7(2)(e) but, as previously explained, this rule does not apply to any of the judgments in question. However, Mr and Mrs Scott set out at length in written submissions many reasons why they regard each of the judgments as having been wrongly decided. As Mr and Mrs Scott are not legally represented, it is necessary for the Court to ascertain whether there is any other power to reopen the judgments which would address the criticisms made by Mr and Mrs Scott of the judgments in the earlier cases.
189 In Bailey v Marinoff (1971) 125 CLR 529 Barwick CJ said in relation to the power of the New South Wales Court of Appeal to reopen a final judgment:
Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed.
190 Until the case of DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 (DJL), there had been no case in the High Court which turned on the power to reopen entered orders (DJL at [44]).
191 That case concerned a judgment of the Full Court of the Family Court. An application was made to a differently constituted Full Court of the Family Court to set aside the judgment on the ground that, as a result of a High Court judgment in another case delivered shortly after the original Full Court judgment, that original judgment was wrong in law. The Full Court of the Family Court, by a majority, dismissed the application to set aside the original judgment. On appeal, the High Court considered whether the Full Court of the Family Court had power to reopen the original judgment. The majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) held that the answer lay in the text of the governing statutes and any express or implied powers to be found in them. In the case of the Full Court of the Family Court there was no such power.
192 Kirby J thought that there was an implied power to reopen the original judgment. He had long been an advocate of the existence of such a power: Wentworth v Rogers (No 9) (187) 8 NSWLR 388 at 394-395; Haig v Minister Administering the National Parks and Wildlife Act 1974 (1994) 85 LGERA 143 at 152-154, 159, 160.
193 In DJL, Kirby J referred to Donkin v AGC (Advances) Ltd [1995] FCA 696 and Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543, both judgments of the Full Court of the Federal Court where the Courts were prepared to assume for the purposes of the appeals that such power existed but that the power was confined to exceptional cases. In the result, in both cases, orders to reopen were refused. Kirby J said in DJL at [106] of the implied power:
It is confined to exceptional cases where a mistake has occurred which, unrepaired, would cause a serious injustice. The applicant bears a heavy burden to persuade a court that he or she did not occasion the mistake and has moved for relief with relevant expedition.
194 And at [128]:
It will be remembered that the reopening of a perfected order is confined to truly exceptional cases. The applicant must have acted promptly and be without fault. To deny relief must effectively leave a serious injustice unrepaired.
195 Kirby J agreed with the majority in the result because he did not regard the error in that case as resulting in 'irreparable injustice' (see [133]).
196 Aside from O 35 r 7(2), the parties have not indicated any other power in the Federal Court to set aside a perfected order. It is likely that the judgment on this point in DJL, applicable to the Family Court, would apply equally to the Federal Court. The result would follow that this Court could not entertain the application by Mr and Mrs Scott to reopen Scott v Secretary, Department of Social Security and Scott v Pedler. Furthermore, it is doubtful whether a single judge of this Court has power to set aside a judgment of the Full Court as Mr and Mrs Scott seek.
197 Despite the conclusion that the Court does not have power to reopen Scott v Secretary, Department of Social Security and Scott v Pedler, except on the grounds stated in O 35 r 7(2), I intend to examine the arguments for reopening raised by Mr and Mrs Scott as if the view of Mason CJ in Autodesk relating to judgments which have not been entered applied to both of those cases as well as to Scott v HREOC. This is to take an approach most favourable to Mr and Mrs Scott.
198 The written submissions filed by Mr and Mrs Scott on 2 December 2009, 18 February 2010 and 28 July 2010 in support of the application to reopen are not always easy to understand. What follows is an attempt to derive the major significant points which seem to emerge from those submissions.
199 Mr and Mrs Scott contend that the Courts were wrong to hold that there was no misfeasance in public office, no deceit, and no negligence on the part of the Commonwealth or its officers.
200 In relation to misfeasance in public office, Mr and Mrs Scott contend that the Courts erred in failing to find that there were invalid exercises of power, and also that the respondents acted with the necessary intent. Various examples of each situation are given.
201 Thus, Mr and Mrs Scott say that under the Social Security Act only medical practitioners can make an assessment of impairment. The rejection of the claim, based on nil impairment, by Mr McLeod, Mr Peak, Ms Williams and Ms Chrystal, who were not medical practitioners, was an invalid exercise of power. Mr and Mrs Scott say that these officers were at least recklessly indifferent to the absence of power. Mr and Mrs Scott say that they suffered loss as a result, and hence misfeasance in public office was made out.
202 Gray ACJ considered this very argument in Scott v Pedler: see [13], [17], [18], [33] [49] and [90]. In particular, after an analysis of the provisions of the Social Security Act as a whole, he held at [49]:
Section 116(1) of the Social Security Act empowered a delegate of the Secretary who was not a medical officer and had not medically examined a claimant for DSP to assess impairment.
203 Thus, this contention is an example of re-agitating arguments already considered by the Court referred to by Mason CJ in Autodesk and, hence, is not a justification for setting aside the judgments. In each case the relevant judgments deal comprehensively with the claim of misfeasance in public office. Whilst Mr and Mrs Scott reject the conclusion that the tort was not established, the judgments are not affected by any misapprehension of fact or law on the issue.
204 Then, Mr and Mrs Scott say that the failure to find that the officers of the Commonwealth intended to cause them injury was against the evidence. A number of instances are cited. For example, Mr and Mrs Scott say that the Court should have found that when Ms Williams refused SB knowing that Mrs Scott was facing starvation and homelessness, Ms Williams intended to harm Mrs Scott by forcing her to make a second DSP claim. In Scott v Pedler Gray ACJ said at [87]:
… I am satisfied that, in suggesting in the letter of 11 August 1995 that Ms Scott take up the option of applying again for DSP, Ms Williams was not endeavouring to harm the applicants. I am satisfied that she honestly believed that a further application for DSP would enable Ms Scott to establish whether or not she was entitled to DSP. Either this would have led to payments of DSP to Ms Scott, if she were entitled, or it would have led to payments of special benefit to her, because she would have satisfied the criterion that she be not entitled to any pension. I am satisfied that Ms Williams's motive was to assist Ms Scott to have the question of entitlements resolved, so that she could receive payments of whatever she was entitled to.
205 Similar findings were made in respect of Ms Pedler and Ms Chrystal. Thus, this contention is an attempt to reargue the very case of the existence of the necessary intention of the officers of the Commonwealth to harm Mr and Mrs Scott which was rejected in the previous litigation. Mr and Mrs Scott disagree with the conclusions reached but the judgments are not affected by any misapprehension of fact or law and no basis exists for setting aside the judgments based on this argument.
206 Mr and Mrs Scott also say that Ms Pedler and Ms Williams rejected the application for SB on a mistaken view that it was not payable unless Mrs Scott had lodged a claim for DSP. They argue that Ms Pedler and Ms Williams were reckless as to the existence of their power to refuse the claim. The rejection was therefore for an improper reason and could not be a valid exercise of power. Again, this matter was directly considered in Scott v Pedler. Gray ACJ found that the evidence, including oral evidence of the officers, established that they did not intend to cause injury to Mrs Scott. He held, that, as a matter of law, the officers were entitled, but not required, to ask Mrs Scott to apply for DSP. In the absence of either the necessary intention or invalid exercise of power, misfeasance in public office was not made out. Again, Mr and Mrs Scott seek to reargue a matter already determined against them on the law and the facts. This provides no ground for setting aside the judgments. They were not affected by any misapprehension of fact or law.
207 A further ground raised by Mr and Mrs Scott is that despite the grant of SB on 23 August 1995, they were not paid the benefit until Friday 1 September 1995, and were not able to access the funds until Monday, 4 September 1995. Centrelink intended by this delay to cause them injury and consequently was liable for misfeasance in public office, it was alleged. In Scott v Pedler, Gray ACJ records the date of payment of SB (see [12]). There is no reference to this particular argument having been put to the Court. Nor is there any explanation from Mr and Mrs Scott why it was not put in any of the cases. Mr and Mrs Scott are not entitled to have the judgment set aside if they 'failed to present the argument in all its aspects': Autodesk at [4] per Mason CJ. It was not for the Court to examine the evidence in minute detail in order to uncover every possible minor wrongdoing of the respondents. Mr and Mrs Scott were bound to explain the significant wrongs which they alleged had been done to them. They did not isolate this particular event at the time of the hearings. It thus provides no basis for setting aside the judgments in the previous cases.
208 In the same category is the claim now raised against the Commonwealth Medical Officer, Dr Paulson. Mr and Mrs Scott say that the Commonwealth Medical Officer had evidence of Mrs Scott's impairments from medical reports supplied by her but the Commonwealth Medical Officer failed in her duty to record those impairments in the medical report which had to be provided for the DSP application. This conduct, it is said, was not an honest attempt to perform the statutory function and it was foreseeable that such conduct would cause damage to Mrs Scott. Again, it was argued that the evidence therefore established misfeasance in public office and the Courts were wrong to have found otherwise. But, again, there is no reference to this argument being put in any of the proceedings. It is another attempt by Mr and Mrs Scott to utilise the statements of the law articulated by the judges in each of the cases and then to retrospectively fit the evidence as they see it into these formulations to raise a new way of putting the case on misfeasance in public office. Mr and Mrs Scott have had numerous chances to put their case. They cannot endlessly create new variations and re-litigate those variations. They failed to present this variation at the various hearings. The judgments cannot be set aside to provide further opportunities to agitate what is essentially the same case.
209 Mr and Mrs Scott argue that they have a claim against Mr McLeod and Mr Peak in deceit. They say that these two officers represented to them in decisions to refuse DSP that the Commonwealth Medical Officer had assessed Mrs Scott's impairment at nil. This, they say, was false. The misrepresentation caused Mr and Mrs Scott to spend time and money seeking further medical opinions to support the claim for DSP and they were caused personal injury in the process. Mr and Mrs Scott made a successful application to Gray ACJ in Scott v Pedler to join Mr McLeod and Mr Peak as respondents. However, thereafter they took no further step against them. Having chosen not to proceed against them they cannot now seek to set aside the judgments which determined the issues then before the Courts.
210 Also, Mr and Mrs Scott say that the Commonwealth Medical Officer and Mr McLeod and Mr Peak, Ms Williams and Ms Chrystal were negligent in rejecting the claim of impairment of Mrs Scott. Each of the Courts rejected the existence of a duty of care in the circumstances brought before the Courts by Mr and Mrs Scott. This is another example of an issue which was directly determined in the litigation. Reopening is not available 'for the purpose of agitating arguments already considered by the Court': Autodesk at [4] per Mason CJ
211 Mr and Mrs Scott contend that the judgments should be set aside on the ground that they were procured by fraud. The contention seems to be that the Commonwealth tried to restrict the hearing in Scott v Secretary, Department of Social Security to the issue of damage resulting from the two month delay in payment of SB to Mrs Scott. Mr and Mrs Scott say that they, in fact, raised the unfair continuous rejection of DSP as an issue in that proceeding. They then suggest that the High Court was pressured by the Commonwealth into accepting the view that the continuous rejection of DSP was not an issue before Heerey J. The argument proceeds that, following the conclusion of Scott v Secretary, Department of Social Security, a solicitor acting for the Commonwealth filed an affidavit in Scott v Pedler which deposed that the continuous rejection of DSP had been an issue in Scott v Secretary, Department of Social Security.
212 It is difficult to extract from this confusion any coherent argument. The complaint is that the Commonwealth misled the High Court. The Federal Court cannot grant relief in respect of conduct alleged to have misled the High Court. But, in any event, the case articulated by Mr and Mrs Scott disproves itself. They quote from the reasons of the High Court dismissing their application for special leave. In the extract the High Court indicates that the issues in the case appear from, inter alia, the submissions both oral and written of the parties. Then, Mr and Mrs Scott quote from the oral submissions made by them to the effect that they wanted the High Court to direct the Federal Court to hear not part of the matter but the entirety of the matter which was before the Federal Court. In other words, their argument before the High Court was that Heerey J had failed to consider all the issues in their case. The High Court understood that they made that submission. At the highest, the complaint made by Mr and Mrs Scott is that the Commonwealth put an opposing submission to the High Court. It is clear from their own argument that the High Court had both contentions before it and was not misled. Mr and Mrs Scott do not establish that the High Court was misled by the Commonwealth, let alone that there was fraud by the Commonwealth.
213 I have attempted to address most of the submissions made by Mr and Mrs Scott in support of setting aside the previous judgments. They have obviously devoted an enormous amount of time and energy to the minute dissection of the previous litigation. Much of their argument focuses on the minutiae and leads to criticisms which do not lead to any significant ultimate outcome. They have acquired an understanding of the law which they have applied to the facts as best as they can without legal representation. Many of their arguments disclose intelligence and thoughtfulness. But others demonstrate confusion and misunderstanding, usually fuelled by an absolute conviction that they have been badly wronged. It is not practically possible to untangle every one of these arguments. There is a limit to the judicial time which should be devoted to their cause. Thus, I have adopted the approach taken by the Full Court in Scott v Secretary, Department of Social Security at [10].
214 Finally, it will be noticed that the application to set aside and reopen the previous litigation is made in the existing application for judicial review of the decision of the Commission. Ordinarily such relief would be claimed in separate proceedings and would usually be made to the Court which gave the original judgment. However, as the detail of the previous litigation was in issue in the application for judicial review, and as the Commonwealth raised no objection to the Court dealing with the arguments, it was convenient to deal with them, at least to the extent that a single judge has jurisdiction to do so.
215 In the result, Mr and Mrs Scott have no reasonable prospect of prosecuting the application to reopen the previous litigation.