REASONS FOR JUDGMENT
CONTI J
6 This is an appeal by husband and wife personally represented litigants Mr and Mrs Scott from the judgment of the primary judge in proceedings Scott v Pedler [2003] FCA 650 delivered on 27 June 2003, which rejected the grant of relief which they had sought by way of declarations, injunctions and damages, including aggravated and exemplary damages. The relief being sought arise out of certain decisions said to have been wrongly made or wrongly omitted to have been made by officers employed by the Department of Social Security (abbreviated here and in the reasons for judgement below as 'DSS') in relation to applications of the appellants for disability social service benefits provided pursuant to the Social Security Act 1991 (Cth) ('the Act'). Each of the three respondents were at all material times officers employed by the DSS. By leave of the Court, the second appellant Mrs Scott undertook the presentation of the appellants' joint submissions on the appeal. The appellants propounded at first instance causes of action against the respondents purportedly in negligence, upon the Beaudesert principle, in trespass and trespass on the case for misfeasance in public office, intentional infliction of personal injury, infringement of rights and unlawful acts. When referring to the appellants individually, it will be convenient to identify them, in conformity with what appears in the reasons for judgment below, respectively as Mr Scott and Mrs Scott, and when referring to the respondents, respectively as Ms Pedler, Ms Williams and Ms Chrystal. I should record the appellants did not pursue below causes of action also propounded, by leave of the Court, against DSS officers Messrs McLeod and Peak, who were apparently not served with any originating process.
The facts and circumstances placed before the DSS as decision-maker
7 The background facts and circumstances placed before the DSS, to which the Full Court's attention was drawn on the appeal, are hereafter recorded in chronological sequence from the reasons for judgment of the primary judge, in order to provide comprehensively the context against which the primary judge rejected the viability of the numerous causes of action propounded by the appellants on the appeal. Each of the parties provided detailed written submissions, and Mrs Scott orally addressed the Court as well at some length.
8 On 28 January 1993, Mrs Scott made claim upon the DSS for a disability support pension ('DSP'), the qualifications for which are set out in s 94 of the Act. Three of those qualifications are extracted below from sub-section (1):
'(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person's impairment is of 20% or more under the Impairment Tables; and
(c) the person has a continuing inability to work; and
…'
The statutory notion of 'continuing inability to work', according to sub-section (2) of s 94, is established if the Secretary of the Department is satisfied that:
'(a) the person's impairment is of itself sufficient to prevent the person from doing:
(i) the person's usual work; and
(ii) work for which the person is currently skilled;
for at least two years; and
(b) either:
(i) the person's impairment is of itself sufficient to prevent the person from undertaking educational or vocational training during the next 2 years; or
(ii) the person's impairment does not prevent the person from undertaking educational or vocational training but such training is not likely to equip the person, within the next 2 years, to do work for which the person is currently unskilled.'
My emphasis on the requirement for the Secretary's satisfaction may be observed.
9 On 30 August 1993, a DSS officer made the decision to reject Mrs Scott's claim for the DSP. It is appropriate to record certain medical information which the DSS obtained before making that decision. In the first instance, a report was made on 10 March 1993 by Dr Paulson, a medical officer of the Commonwealth Department of Health Housing and Community Services, in the context of her consideration of Mrs Scott's capacity for work. Dr Paulson recorded Mrs Scott's complaint of widespread musculoskeletan pain and her history of asthma. On 24 May 1993, a lengthy report was furnished by Dr Colville to Dr Paulson. Dr Colville spoke of his inability 'to suggest a diagnosis'. He further spoke of Mrs Scott taking 'substantial excessive and potentially dangerous medication for her asthma', and of his 'temptation' to diagnose a condition of Munchausen's Syndrome. He concluded '… this is a diabolically incomprehensible presentation which cannot be assessed with the current available information and is very probably much more of a social than organic medical problem', and that Mr Scott 'seemed to be describing a similar behavioural pattern'. On 29 May 1993, Dr Christine McDonald, a respiratory physician, had reported to Dr Paulson that she was '… unable to comment on whether or not this patient has asthma', and that her 'symptoms are bizarre and medication regimen seems excessive', and further that '[s]he was unwilling to co-operate adequately with testing, but certainly on tests obtained there was no significant airflow obstruction and ventilatory function was well preserved'. Dr McDonald concluded that '[a]lthough I am unable to confirm a respiratory basis for her disability, she certainly seems to have a strong conviction that she is diseased, and therefore I feel that she would be unfit to work at this time, as there appears to be potential significant secondary gain from the adopting of the "sick" role.'
10 It appears that on 31 August 1993, Mrs Scott attended the DSS and was informed of its unfavourable decision. According to DSS file notes of 31 August 1993, Mrs Scott thereupon provided to the Department an undated medical report relating to herself made by Dr Vera Vrbica, apparently on her instructions. That report expressed the opinion that Mrs Scott was 'crippled as a result of degenerative damage to the lower dorsal spine, cervico-dorsal scoliosis convex to the left, dorsal scoliosis curve convex to the left centred at D8, dorso-lumbar scoliosis to the right centred at L1, cervical hypolordosis and head-ache-type neuralgia of the occipital nerve', and in addition, that she suffered from 'weakness and instability of knee ligaments co-existing with chondromalatia patellae and recurrent bursitis of the right knee'. It further stated that Mr Scott had 'weak ligaments causing… lowered transverse, and longitudinal arches bilaterally', 'consequential hallux valgus, deformities of digits and tailors bunion bilaterally', and also 'weak and painful wrists'. Dr Vrbica also referred in that report to Mrs Scott's conditions of bronchial asthma and irritable bowel syndrome. The report of Dr Vrbica concluded that Mrs Scott should 'avoid stooping, lifting, prolonged standing, prolonged walking and staying in dusty, stuffy rooms… [and] should rest in a recumbent position during the day', and further that '[f]or all these reasons this patient should be granted the Invalid Pension'. Contemporaneously, Dr Vrbica provided what was described as 'Combined Medical Impairment Assessment under the Impairment Tables', which assigned percentage impairments on Mrs Scott's work capacity and potential work capacity in each case as nil, and described Mrs Scott as 'permanently incapacitated for work'. A discussion thereafter ensued within the DSS as to whether or not the DSS could have regard to a medical report, which it had not commissioned (doubtless that of Dr Vrbica), for the purposes of its decision-making. According to a DSS file note, it was recorded that the officer should '… send it back to the [chief medical officer] to see if they want to make a decision on the latest medical report provided or if the client is still required to attend the specialist appointment'.
11 On 6 October 1993, Dr Paulson reported to the DSS her medical assessment of Mrs Scott up to that time, after first repeating the prior history which she had already assembled, as follows:
'I am still unable to give a definitive recommendation regarding work capacity as, in my view, a specialist psychiatric opinion is essential to making a fully informed recommendation. My final assessment of permanent impairment and combined value are also incomplete for the same reason.'
Subsequently on 16 November 1993, a DSS officer (Mr McLeod) wrote to Mrs Scott as follows (so far as is material):
'…
Upon further consideration of your case, it has however been noted that the Commonwealth Medical Officer (CMO), while not finalising your medial assessment, has assessed your presenting physical conditions as having a nil impairment rating. This has been arrived at using all of the medical information that you have provided in support of your claim, your medical examination by the CMO and other specialists as requested by the CMO.
Your claim for DSP is therefore rejected on medical grounds due to this nil impairment rating as determined by the CMO. I have referred this case directly to the Authorised Review Officer (ARO) who is a senior independent officer who will:
· take a fresh look at your case;
· change the decision if it was not correct; and
· tell you how you can appeal to the Social Security Appeals Tribunal (SSAT) if you still do not agree.
The SSAT cannot review a decision unless it has been reviewed by an ARO first. This applies to decisions made on or after 1 January 1993.
…'
12 The response of the appellants, by letter of 18 November 1993 addressed to Mr McLeod of DSS, was as follows:
'Thank you for your letter dated 16.11.93 and for getting interested in the matter after many months of your silence.
However, you still do not observe the Social Security Act 1991, because you have not considered the Assessment under the Impairment Tables (copy added) required under the Social Security Act 1991, made by the approved by the Social Security Act 1991, registered General Practitioner, who does not "restore" the patient's health as it is done by other doctors.'
Subsequently by letter of 24 November 1993, the DSS Authorised Review Officer, Mr Peak, wrote at length to Mrs Scott, commenting as follows:
'… I have taken a fresh look at your case. I looked at everything you had already given the Department about your claim.
I have decided that the decision not to pay you DSP was correct.'
After then summarising the requirements of s 94 of the Act, and the facts and findings Mr Peak used 'to make up [his] mind', comprising thirteen medical reports, inclusive of the two made by Dr Vrbica which had been obtained by Mrs Scott and provided to the DSS, the letter advised Mr Peak's reasons for adverse decision as follows (inter alia):
'…
Under section 94, a person cannot be paid DSP unless there is an impairment of 20% or more under the Impairment Tables. You have an impairment of nil on these tables. (Mr Peak's emphasis)
This assessment is made by a medical practitioner from the AGHS as required by section 116 of the Act.
Based on the available medical evidence, I believe this percentage to be a reasonable assessment. This is why I have agreed with the decision not to pay you DSP.
…
If you still do not think the decision is correct, you can appeal to the Social Security Appeals Tribunal (SSAT). You can use the form which is with this letter.
…'
13 The facts and circumstances which I have thus far recorded reflect the inception of the dispute between the appellants Mr and Mrs Scott and the DSS and its officers, and serve as a context to the events which thereafter ensued, and which I will now seek to trace. None of the present respondents had been referred to in the narrative of events provided up to this point in time in the reasons of the primary judge. Mrs Scott did not make an immediate application for review to the Social Security Appeals Tribunal ('SSAT'), but instead set about gathering further medical evidence to support her claim that she had a disability impairment of more than 20 percent under the Impairment Tables (ante). To that end, Mrs Scott corresponded with a number of medical practitioners located in overseas countries concerning her physical condition, and thereby obtained further reports to place before the SSAT in support of her claims. In the events which happened, Mrs Scott lodged with the DSS on 30 June 1995 an application for a special benefit payable pursuant to s 729 of the Act. Under the heading 'Reason for claiming', her claim form stated as follows:
'Despite of the confirmation of 70% physical impairment, the Northcote DSS has rejected the disability support pension. The claim for the special benefit is being lodged because time is needed for the matter to be prepared for further consideration by higher authorities.'
14 The provisions of s 729 of the Act may be summarised for present purposes as follows:
'(1) A person is qualified for a special benefit for a period if the Secretary determines, in accordance with subsection (2), that a special benefit should be granted to the person for the period.
Note: special benefit is a discretionary benefit and is available only to a person who is not able to get any other income support payment (see paragraphs (2)(a) and (b) below).
(2) The Secretary may, in his or her discretion, determine that a special benefit should be granted to a person for a period if:
(a) no social security pension is payable to the person during the period; and
(b) no other social security benefit is payable to the person for the period; and
…
(e) the Secretary is satisfied that the person is unable to earn a sufficient livelihood for the person and the person's dependants (if any) because of age, physical or mental disability or domestic circumstances or for any other reason; and
…'
15 The primary next judge recorded that Mrs Scott's special benefit application was dealt with by another DSS officer Ms Pedler, the first respondent to the proceedings. Ms Pedler appears to have addressed the application promptly. By letter dated 19 July 1995, Mr McLeod, in his capacity as the Regional Manager of DSS, gave Mrs Scott the following reason for the decision of the DSS to reject that application:
'The reason for this decision is that Special Benefit is only payable if no other reasonable means of support exist, and no other Social Security allowance or pension is payable. If you are able to look for work, Job Search Allowance would be your correct entitlement. If you are unfit to look for work because of a medical condition, either Sickness Allowance or Disability Support Pension may be your correct payment type. As you have declined to test your eligibility for any of these payments, it cannot be determined that you are not entitled to any other Social Security allowance or pension.'
Mrs Scott was invited by the letter to speak to Ms Pedler for any explanation she may require, and was told that if no agreement could be reached, an independent expert officer would 'take a fresh look at the case', and 'change the decision if it is not correct', and 'tell you how you can appeal to [SSAT] if you still do not agree'. The letter added:
'The SSAT cannot review a decision unless it has been reviewed by an ARO first… Remember, if you do not ask for the decision to be reviewed within 3 months of being told about it, you can only get back payment from the date you ask'.
16 The primary judge observed that 'the precise timing of events in relation to this letter is uncertain,' in that although it is dated 19 July 1995, Mrs Scott claimed not to have received it until 31 July 1995. His Honour next observed, apparently upon the basis of a file note of Ms Pedler of 28 July 1995, that the conversation between Mrs Scott and Ms Pedler, referred to in the preceding paragraph, apparently took place on 26 July 1995, and further that it was only in that conversation that Mrs Scott told Ms Pedler that she declined to test her eligibility for the DSP by making another application. His Honour considered however whatever be the correct version of three possible explanations, the same had no impact on the outcome of the present proceedings at first instance. Ms Pedler's handwritten file note of 28 July 1995 reads as follows:
'Sophie's Special Benefit has been rejected due to there [being] no outstanding DSP claim. She has to claim JSA. Client is appealing DSP rejection of less than 20% impairment. (This decision was made two years ago). She's only just appealed now.
Spoke to Sophie on Wed and stated she had two options. 1. Put in a DSP to retest eligibility for that and we can grant SL or 2. Claim JSA (which she doesn't want to do). Spoke to Kevin Ryan who is nominee for Sophie. Kevin is following up with Sophie about lodging a claim for DSP. At this stage I haven't heard anything further.
Sophie did want to appeal against the rejection of Special but at this stage it's still under reconsideration as we haven't heard back from Kevin. Hopefully she'll lodge a claim for DSP and make life easier for everyone.'
17 By letter dated 3 August 1995, Mrs Scott sought review by an Authorised Review Officer of the decision of 19 July 1995 of the DSS to refuse to grant to her a special benefit; that application for review contained the following 'Grounds for review':
'Mrs Sophie Scott has been urged by Northcote Department of Social Security (DSS) to:
- apply… for Job Search Allowance and pretend… to be looking for work;
Mrs Sophie Scott has proved 70% permanent physical disabilities, Northcote DSS knows of this fact, and is unfit to look for work.
Such being the case, applying for Job Search Allowance is an offence. (Mrs Scott's emphasis)
- applying for Sickness Benefit and automatically making false and misleading statements by changing in statements proved 70% permanent physical disabilities (against the facts) to temporary disabilities;
In view of these, applying for Sickness Benefits is an offence (Mrs Scott's emphasis).
- applying for the subsequent Disability Support Pension (DSP), despite not yet being able to have the DSP Claim being reviewed by higher authorities;
Applying for the subsequent DSP is equal to hiding the detrimental and not correct decision, that was made by Australian Government Health Service, and is making it impossible for Mrs Scott to obtain the review, to which she is entitled. It is against (again Mrs Scott's emphasis) the Social Security Act.
Preparation for submitting the case to higher authorities requires time, and Special Benefit is the only available mean of support. At present Mrs Scott is being left without any means for living and without any possibilities of buying the vital medicines, and this is inhuman especially towards an ill person.
It is also underlined, that Australia sometimes requires even 20 years time for preparation and reviewing a case. Mrs Sophie Scott does not need so long.
I am requesting you advise me of your decision.'
18 The second respondent Ms Williams, employed as the Section Manager Newstart at the DSS, responded by letter of 11 August 1995 addressed to Mrs Scott as follows:
'I have reviewed your case and consider that the decision to reject your claim for special benefit was correct.
You was [sic] not granted special benefit because this is a payment for people who do not have any other payment options. Staff from this office have noted that you may have an entitlement to disability support pension (DSP). You have been duly notified of this payment option open to you and have been urged to lodge a claim for DSP at your earliest convenience. To date this has not occurred. As you may have an entitlement to another social security payments, special benefit is not payable.
This is why I consider that the decision to reject your claim for special benefit was correct. However, as per your request, I have forwarded your file to the Authorised Review Officer (ARO) for further consideration (the emphasis was that made by Ms Williams).
As you have not lodged a claim for DSP, you are currently not in receipt of payments from this Department.
Staff at Department of Social Security offices are obligated to ensure that all customers receive their correct entitlements. However, customers must lodge claims in order to receive their appropriate payment. Please lodge a claim for DSP at this office as soon as possible.'
19 The primary judge recorded that the appointed Authorised Review Officer referred to in Ms Williams' above letter was the third respondent Ms Chrystal. On 21 August 1995, Mrs Scott wrote to Ms Chrystal and indicated that, rather than lodging a new application for a DSP, she intended to have the earlier decision refusing the grant of a DSP reviewed by the SSAT, being an option to which she claimed to be entitled to pursue, and that she needed time to prepare the case to be presented to the SSAT. For that reason, Mrs Scott was said by his Honour to have so explained, she had lodged her claim for payment of a special benefit.
20 By letter dated 23 August 1995, the third respondent Ms Chrystal, as the Authorised Review Officer of DSS, wrote to Mrs Scott as follows:
'I am writing to you about the decision not to pay you a special benefit.
I am an Authorised Review Officer and I have taken a fresh look at the decision. I have decided to change the decision as I believe you qualify for special benefit until the outcome of your appeal to the Social Security Appeals Tribunal against the refusal of the Disability Support Pension is known. This means the review has been successful.
I have told the Northcote Office about my decision. I have asked that office to arrange for the payment of arrears of special benefit in respect of your claim dated 30 June 1995. You should talk to that office if you want to know more about your case.
A new decision about your special benefit will be made once the decision on your appeal against the refusal of the Disability Support Pension is made.
If you still do not think my decision is correct, you can ask the Social Security Appeals Tribunal (SSAT) to look at it again.
If you don't agree with the decision of the SSAT, you can ask the Administrative Appeals Tribunal to look at your case.
An appeal does not limit other legal recourse open to you, including complaining to the Commonwealth Ombudsman, if you feel that the Department has not handled your review properly.
Write to or call the Commonwealth Ombudsman office listed in your local phone book. 1800 numbers are available in most States.
You may also like to look at any papers on your file about your case. If you want to do this, you can ask under the Freedom of Information Act. You can ask about this at your local office or any office of the Department.'
21 On 24 August 1995, Ms Chrystal made the following file note under the heading 'Reasons For Changing Decision To Reject Claim For Special Benefit':
'Brief History:
Sophie Scott, born 23 February 1962 (age 33), married, arrived 26 November 1986
Mrs Scott's claim for DSP was rejected in 1993 as the available medical evidence did not support an impairment rating of 20%. The decision was affirmed by an ARO on 24 November 1993. Mrs Scott has not appealed this decision yet.
The medical evidence provided by Mrs Scott only relates to physical conditions. Both physicians who saw Mrs Scott at the department's request indicated psychological issues needed to be addressed. The AGHS medical officer stated on 6 October 1993 "I am still unable to give a definitive recommendation regarding work capacity as, in my view, a specialist psychiatric opinion is essential to making a fully informed recommendation. My final assessment of permanent impairment and Combined value are also incomplete for the same reason'.
Mrs Scott refuses to attend a psychitric [sic] appointment.
Until 30 June 1995, Mrs Scott has been receiving a partner allowance. This stopped as Mrs Scott no longer qualifies under changes to the Act because she was not born on or before 1 July 1955.
The only options available are JSA, SA or DSP. Mrs Scott refuses to claim JSA and pretend to look for work, when, in her opinion she has "proved 70% permanent physical disabilities". She refuses to claim SA as her conditions are permanent. Mrs Scott refuses to claim DSP again as she has not exercised her right to appeal the decision in 1993.
The available evidence does not support DSP at this point in time. The referring officer who has also been a Disability Support Officer until recently, opined that Mrs Scott is (very likely) entitled to DSP. I understand this to be if psychiatric opinion is obtained.
Mrs Scott indicated to Jenny Blakey of the Welfare Rights Unit she would appeal the DSP rejection. Jenny convinced Mrs Scott she can provide current medical evidence after lodging the appeal. Mrs Scott has obtained a current report regarding her physical disabilities which Jenny summarised for me.
Conclusion
Mrs Scott refuses to look for work, let alone contact the CES, so does not qualify for JSA. She does not appear to have any temporary medical conditions so SA is not appropriate. She refused to claim DSP again and does not qualify for DSP based on physical disabilities alone. Her mental state could indicate psychiatric illness but Mrs Scott refuses to attend a specialist in this field.
I understand that by rejecting the special benefit claim, it was hoped Mrs Scott would be forced to claim DSP. This has not worked.
Trusting that Mrs Scott is not manipulating the system by misrepresenting her mental state I believe the only option available is to pay special benefit on a short term basis using the guidelines contained in the Guide to the Act chapters 15.2500 to 15.2502. I emphasise short term as I truly believe the result of her DSP appeal will be the deciding factor.
Once the result of the appeal is known then her entitlement to special benefit must be reviewed. A social work report can be obtained if it is a question of continuing under the guidelines I have used. I realise this should have been obtained for my decision but I believe this will just cause more conflict.'
A handwritten observation at the foot of this file note reads as follows:
'Should Mrs Scott withdraw her appeal then she should be referred for a medical examination & invited to claim DSP'
The references to JSA, SA and DSP are somewhat confusing on an initial reading of this document. They are respectively references to job search allowance, sickness allowance and of course to the disability support pension. The departmental notations of job search allowance and sickness allowance were referred to in the primary judge's reasons already extracted: see [15] above.
22 The response of Mrs Scott by certified mail of 30 August 1995 to the DSS letter to her of 24 August 1995 constituted a preliminary step to the litigation which thereafter ensued in this Court at first instance. Addressed to Ms Crystal, the same reads as follows:
'I have received your letter of 23.08.95, in which you decided that I qualify for special benefit. Despite, that you informed the Northcote DSS Office of your decision seven days ago, till the present day I have received neither a benefit card (necessary for buying medicines), nor any payment.
I am asking you for help in this matter.'
23 In relation to the month of September 1995, DSS issued a public document headed 'Important Update News For You'. It listed new rates for Job Search, Newstart, Sickness, Partner and Widow Allowance and Special Benefit, as well as other information of interest to persons in receipt of social security benefits and persons prospectively in receipt of such benefits.
24 Subsequently on 19 September 1995, Dr Vrbica provided a signed document under the heading 'Disability Support Pension' and the sub-heading 'Combined Medical Impairment Assessment Under The Impairment Tables', which purported to list Mrs Scott's medical conditions said to have an effect on her working capacity. The impairments postulated by Dr Vrbica may be summarised as follows:
(i) weakness and instability of knee ligaments etc: 40% Table OH;
(ii) degenerative spine damage etc: 30% Table 25;
(iii) weak and painful wrists etc: 25% Table 03;
(iv) exercise dyspnoea etc: 20% Table 1.2;
(v) digestive system allergy: 10% Table 14;
(vi) psychiatric assessment: nil Table 07.
(the etceteras added by Dr Vrbica comprised elaborations and adverse consequences of disability first nominated).
The document concluded as follows:
'COMBINED ASSESSMENT USING COMBINED VALUES CHART: 80%
OUTLOOK ASSESSMENT: NO REVIEW NECESSARY WORK CAPACITY RATING: NIL
POTENTIAL CAPACITY TO WORK: NIL, MEDICAL CONDITIONS PREVENT WORK
REHABILITATION: CONTRA INDICATED BECAUSE OF LIGAMENTOUS LAXITY
DIAGNOSTIC INCONSISTENCIES: NIL
PATIENT MRS SOPHIE SCOTT IS PERMANENTLY INCAPACITED [sic] FOR WORK.'
25 In the upshot, Mrs Scott was granted a special benefit, retroactively from 3 July 1995, being the first working day after the date on which her claim for special benefit had been lodged. The first payment of a special benefit was made to her on 1 September 1995. Nevertheless she maintained on foot her application for review to the SSAT in relation to the rejection of her DSP claim. On 8 January 1996, the SSAT affirmed the decision not to grant to Mrs Scott her application for a DSP. Thereafter Mrs Scott sought review of the DSS decision by the Administrative Appeals Tribunal ('AAT').
26 On 9 September 1996, an officer of the DSS decided that Mrs Scott's application to the AAT should qualify for success, and that she was entitled to be paid the DSP under s 94 of the Act, with a provisional commencement date of 28 January 1993. The AAT Hearing Report, compiled by the senior advocate for the DSS, described the proceedings as 'Substantive', and the 'Substantive Issue' as 'DSP'. The senior advocate provided the following 'Outline Of The Issue, Submissions, Authorities, And Relevant Comments Made By The Tribunal' as follows (the references below to 'GP' were apparently to Dr Vrbica, Mrs Scott's general practitioner above identified):
'One of the great difficulties of this case was the apparent discrepancy between the opinions of the GP and other doctors. Ms Scott had produced a great number of reports from a number of specialists attesting to her medical condition. The Department had obtained reports from Drs Colville and other local specialists here in Melbourne. It would be fair to say that the relationship between Ms Scott and the various specialists and doctors to whom she had been referred has not always been harmonious. The conduct of the AGHS examination had been the subject of a complaint by Ms Scott. There was also a complaint to the Human Rights and Equal Opportunity Commission (HREOC) against the way in which she had been treated by DSS. A copy letter on file from the Chairman would indicate that HREOC declined to examine the complaints while an appeal was open to the SSAT.
It was very unfortunate that the SSAT then heard this case in Ms Scott's absence (albeit with her consent).
Ms Scott gave extensive evidence in relation to her medical condition. In the course of her evidence she confirmed that Dr Kordys had been her treating doctor in Poland and that she continues to consult him (by correspondence from time to time). The reports of her treating GP also confirms [sic] a considerable level of disability. (At the conclusion of Ms Scott's evidence I was prepared to concede a level of disability which would qualify her for SDP. It became readily apparent that Ms Scott would rate 15% under Table 3 and as her condition was bi-lateral a further 5% would be added. It was also apparent she would attract a rating of at least 15% under Table 4. She would thus satisfy the 20% requirement without consideration of the spinal degeneration or the more contentious alleged irritated bowel, asthma and dyspnoea. I was also satisfied given the nature of her condition that she would satisfy the continuing inability to work provisions of DSP qualification).
Ms Scott has objected quite strongly to suggestions made by various medical practitioners that a psychiatric assessment would be appropriate. She points out that there is objective clinical evidence to support her argument that she has degenerative changes occurring which gives weight to her contentions.
In the course of the hearing it became readily apparent that Ms Scott would rate 15% under Table 3 and as her condition was bi-lateral a further 5% would be added. It was also apparent she would attract a rating of at least 15% under Table 4.'
27 Subsequently by letter of 6 November 1996, DSS wrote to Mrs Scott and informed her that the DSP would be paid to her at the rate of $315.50 per fortnight starting from 14 November 1996, and that arrears of $1,995.07 had been credited to her account, and further that her DSP 'starts from pension pay day 28 January 1993'.
28 The primary judge next recorded that Mr Scott had been in the meantime in receipt of a special benefit, pursuant to s 729 of the Act, though his Honour did not indicate from what commencing date. However his Honour did record that as from 30 September 1994, the special benefit was paid at the rate applicable to a married person. Mrs Scott had been moreover, presumably from that time, in receipt of a partner allowance under s 771HA of the Act. By reason however of an amendment to the Act effective from 1 July 1995, Mrs Scott ceased to fall within any class of persons entitled to receive the partner allowance, and she was notified prior to 30 June 1995 of that circumstance. The claims of Mr Scott against the respondents advanced in the proceedings below for damages were based upon the adverse consequences to him of the initial denial of the DSP to his wife, and of the consequential additional monetary income which would thus have flowed to them as a married couple in co-habitation. Mr Scott had been himself in receipt of a special benefit from the DSS for some time.
The statutory scheme in outline for qualification for disability support pensions and special benefits and for decision-making and review of decision-making
29 The primary judge summarised the statutory scheme for qualification for disability support pensions and special benefits that prevailed at the times material to the determination of the entitlements of Mrs Scott, and apparently also for Mr Scott. The same has already been partially referred to, and may be outlined as follows for ease of further reference:
s 23(1), which defines 'Impairment Tables' by reference to Schedule 1B;
s 94, which defines 'continuing inability to work', 'educational or vocational training' and 'work', for the purposes of qualification for the DSP (see [8] and [12] above);
s 200, which defines the qualification, in terms of time of commencement, for the DSP;
ss 106 to 108, as to making claims for the DSP;
s 113 to 114 as to determining claims for the grant of the DSP, if the Secretary is satisfied as to qualification therefor;
s 116 as to examination by a medical practitioner (referred to in [12] above);
s 118 as to the date of commencement of payment of the DSP;
s 729 as to qualification for the special benefits (set out in [14] above);
s 733 as to the assets test for qualification for the special benefit;
ss 740 to 743 as to making of claims for the special benefit;
ss 744 to 748 as to determination of claims for the special benefit, and as to quantification and payment thereof;
s 1239 to 1243 as to entitlement to review of the decisions of the Secretary (the Secretary's powers are set out in s 1299); see also s 1301 as to the Secretary's power to authorise the performance of the duties by an Authorised Review Officer;
s 1247 as to entitlement to review by SSAT of the decisions of the Secretary or Authorised Review Officer;
s 1283 as to entitlement to review by AAT of decisions of the SSAT; and
s 1296 as to matters to which the Secretary is to have regard in administering the Act.
The causes of action framed and pursued below by the appellants Mr and Mrs Scott
30 The causes of actions framed by the appellants at first instance were summarised by the primary judge as breach of an alleged duty on the part of each of the three respondent officers of the DSS owed to Mrs Scott under
(i) statute,
(ii) common law, and
(iii) 'otherwise',
with due care and expedition.
31 At the centre of those causes of action were issues framed by the primary judge as follows:
(i) whether the assessment of Mrs Scott's complaints of pain was made, for the purposes of DSS decision-making, by the medically unqualified Mr Peak (identified in [12] above);
(ii) whether the respondents knew or should have known that the DSP was payable to Mrs Scott as from 28 January 1993, and particularly in July and August 1995 (which was later conceded in the course of the Tribunal hearing);
(iii) whether the rejection of Mrs Scott's claim to the DSP until 9 September 1996 was in breach of ss 94, 106, 113, 116, 1239 and 1296 of the Act, as well as of Schedule 1B thereto and of a duty of care in common law, and was otherwise unlawful (Mrs Scott was of course ultimately granted the DSP in the circumstances described in [27] above);
(iv) whether rejection of or failure to grant Mrs Scott's application for the special benefit was in breach of ss 729, 743 and 1296 of the Act, and also of a duty to take care, described comprehensively as breach of duty to take care, 'in breach of the common law', and in breach of fairness, and to have been otherwise unlawful (Mrs Scott was of course ultimately granted the special benefit in the circumstances described in [25] above).
32 It was thereafter alleged that the respondents knew or ought to have known that:
'(I) the second applicant (ie Mrs Scott):
(a) must not claim a job search allowance ("JSA") or a sickness benefit ("SickB");
(b) did not need to make a second DSP claim to be granted a DSP;
(c) did not need to make any additional claims for the respondents to determine, under s 729 of the Act or otherwise, the payability of a DSP and pensions/benefits to the second applicant;
(d) could not, because of the unpreparedness and huge detriment, make a second DSP claim or appeal to the SSAT at that time;
(e) was entitled to the payment of a sufficient livelihood, i.e. of a SB, when preparing the matter of the DSP rejection for further consideration; AND
(II) they must consider the grounds for claiming a SB stated by the second applicant in her claim for a SB.'
33 Based on those averments, it was next pleaded by Mr and Mrs Scott to the following effect:
(i) Ms Pedler knew on 19 July 1995 that under s 729 of the Act she should have determined the payability of a DSP and the payability of pensions and benefits to Ms Scott without requiring claims for these other pensions/benefits and that she should have considered the grounds for claiming special benefit stated by Mrs Scott in her claim for special benefit; and
(ii) Ms Pedler knew on 19 July 1995 that Mrs Scott had been entitled to a DSP from 28 January 1993 and that Mr Scott did not need to make a second DSP claim in order to be granted a DSP.
34 Thereafter it was pleaded by the statement of claim that on 19 July 1995 and 26 July 1995, Ms Pedler acted negligently, in beach of the Beaudesert principle, committed trespass and trespass on the case, committed misfeasance in public office, intentionally inflicted personal injury, infringed absolute rights and/or acted otherwise contrary to law and unlawfully, in that Ms Pedler:
(i) knowingly acting in excess of power under s 729(2)(a) and (b) of the Act and knowingly acting against the usual practice, decided that she would not attempt to determine the payability of a DSP and pensions and benefits to Mrs Scott without a claim for a JSA or a SickB or a second DSP claim from Mrs Scott;
(ii) knowingly acting in breach of s 743 of the Act and acting in breach of s 106 of the Act and in breach of procedural fairness, acted directly against Mrs Scott and with the involvement of a foreseeable risk of harm, by requesting a second DSP claim from an unprepared Mrs Scott who asked for time to enable the preparation;
(iii) knowingly in breach of s 743 of the Act and of ss 1296 and 1239 of the Act, acted directly against Mrs Scott and with the involvement of a foreseeable risk of harm, by not reconsidering the payability of a DSP (especially by not reconsidering the existence of the dangerous impairment of the pulmonaro-cardio-vascular system) to Mrs Scott, or by not requiring that extent of reconsideration from another officer of the DSS notwithstanding that further consideration was suggested by Mrs Scott;
(iv) acted directly against Mrs Scott and with the involvement of a foreseeable risk of harm, by requesting that Mrs Scott make a claim for a JSA or for a SickB, in circumstances where Ms Pedler knew/should have known that those acts constituted an offence against s 1350 of the Act on the part of Mrs Scott;
(v) in breach of ss 94, 113 and 1296 of the Act, failed to grant a DSP to Mrs Scott or failed to transfer Mrs Scott's DSP claim to another officer for the purpose of reconsidering and granting a DSP to Mrs Scott;
(vi) in breach of the purpose of special benefit and in breach of procedural fairness, acted directly against Mr and Mrs Scott and with the involvement of a foreseeable harm (i) by not granting special benefit and 'any livelihood' to Mrs Scott, and therefore by not granting sufficient livelihood to Mr and Mrs Scott, and (ii) by hindering Mr and Mrs Scott in the preparation of the DSP matter for further consideration;
(vii) wilfully and without reasonable excuse engaged in 'killing' Mr and Mrs Scott with starvation and hindering the preparation of medical evidence by Mr and Mrs Scott; and
(viii) took an unreasonably lengthy period of time for making and communicating her decision to Mrs Scott, and thereby constructively refused to determine at all the payability of a DSP and of other pensions and benefits to Mrs Scott, and constructively refused to determine under s 729 of the Act Mrs Scott's claim for the special benefit at all, that she was aware of the suffering of hardship Mr and Mrs Scott in awaiting her decision.
35 Similar purported causes of action were invoked by Mr and Mrs Scott against the second respondent Ms Williams, as the primary judge recorded, on the basis that on 11 August 1995, Ms Williams approved the decisions of Ms Pedler and assessed the physical impairment of Mrs Scott as being less than 20 per cent under the impairment Tables, Ms Williams having no medical qualifications and not being a medical officer or practitioner, and never having made a medical examination of Ms Scott.
36 In a similar vein, such purported causes of action were also invoked by Mr and Mrs Scott against Ms Chrystal, being five in number, being as to the first three, for wilful breach of s 94 and Schedule 1B of the Act, by reason of approving Ms Peak's earlier decision in relation to Mrs Scott, and by disregarding any impairment of function in Mrs Scott, and by paying regard only to pain, and thereby exposing Mrs Scott to foreseeable risk of harm, by not granting a DSP to Mrs Scott, and as to the remaining causes of action, for breach of ss 729 and 1296 of the Act, and for denial of procedural fairness, by Ms Chrystal having 'acted directly against [Mr and Mrs Scott] and with the involvement of a foreseeable risk of harm, by not granting special benefits and any livelihood to [Ms Scott] and by not granting sufficient livelihood to [Mr and Mrs Scott] on 10 August 1995 but only two weeks later', and further 'by hindering [Mr and Mrs Scott] in the preparation of the [DSP] matter for further consideration', and by wilfully and without reasonable excuse… killing [Mr and Mrs Scott] with starvation and… hindering the preparation of medical evidence by the appellants'.
37 The statement of claim next pleaded causes of action in relation to Mr Scott. It was said that between 30 June 1995 and 1 September 1995, the respondents unreasonably, and in breach of s 763 of the Act, by failing to increase, or to direct another officer of the DSS to increase, Mr Scott's rate of special benefit. The next ensuing paragraphs of the statement of claim were framed as follows:
'27. The common motive of all three respondents was:
(a) that the 1993 DSP claim of the second applicant was to remain rejected; AND
(b) that the second applicant was to be forced, by means of starvation, to make a second DSP claim while being unprepared to do so; AND
(c) that the second DSP claim was to be rejected by the DSS;
AND
(d) the DSS would gain financially by not paying a DSP to the second applicant.
28. All three respondents, who were and are the officers of the governmental beneficial organisation namely of the DSS, committed the oppressive, arbitrary and unconstitutional actions by:
# denying any livelihood to the second applicant for 2 months;
# denying sufficient livelihood to the applicants for 2 months;
# not changing the deadly "medical" misdiagnoses re the second applicant for almost 4 years;
# hindering the preparation of medical evidence by the applicants and therefore hindering the applicants' attempts to protect the second applicant's life;
# wilful and continuous breach of the beneficial Act.'
Upon the foregoing basis, Mr and Mrs Scott additionally claimed exemplary damages. An amendment was subsequently made to the statement of claim by notice of amendment dated 17 August 2001. It is unnecessary to summarise the same for present purposes, except perhaps to mention that reference was made to the conduct of 'Officer Peak' in erroneously assessing Mrs Scott's pain and losses on 24 November 1993.
38 As matters ultimately transpired, as I have earlier recorded, it was determined by the DSS that Mrs Scott was entitled to the DSP retroactively from 28 January 1993.
39 The appellants disputed below that s 729 of the Act required Mrs Scott to test her eligibility for other forms of social security pension or other social security benefits, in order to sustain her claim for special benefit, contending in their reply as follows:
'(A) "to test eligibility" means to lodge a claim for a Job Search Allowance, Sickness Allowance or for a DSP;
(B) it is the regular practice of the officers of the DSS, known to [Ms Pedler] on 19 July 1995, that the lodgment of claims for pensions/benefits is not required, under s 729(2) of the Act, for the purpose of the determination of payability of pensions/benefits to the person claiming a Special Benefit;
(C) under s 729(2) of the Act, the lodgment of claims for pensions and benefits is not required for the purpose of determining the payability of these pensions and benefits;
(D) the respondents were informed by [Mrs Scott] in July - August 1995 that [Mrs Scott] must not lodge a claim for a Job Search Allowance and for a Sickness Allowance and did not want to lodge a second DSP claim without being able to attach to it medical evidence and that in any event [Mrs Scott] had been entitled to the DSP since 1993 and should have been allowed to appeal to the SSAT against the rejection of the 1993 DSP lodged and to prepare medical evidence for that appeal;
(E) at all material times [Ms Pedler and Ms Williams] refrained from testing the payability of a DSP to [Mrs Scott], which was the duty under ss 729, 114 and 1239 of the Act under the common law or otherwise, on the claim for DSP lodged in 1993;
(F) a DSP was payable to [Mrs Scott] at all relevant times;
(G [Ms Pedler] did not see the files of the DSS that contained the information that since 1993 a DSP had been payable to [Mrs Scott].'
40 Mr and Mrs Scott emphasised in reply below that s 729 of the Act required the respondents to determine the so-called payability of a DSP to Mrs Scott, and that the respondents were subject to a duty to grant a DSP, or to send Mrs Scott's file to another officer who could have and would have granted a DSP to Mrs Scott. Section 729, which has been partly extracted in [14] above, relates to qualification for a special benefit.
Earlier proceedings brought by Mr and Mrs Scott against the Secretary, Department of Social Security
41 The reasons for decision of the primary judge were provided against the background of earlier proceedings brought by Mr and Mrs Scott as applicants against the Secretary, Department of Social Security (Scott and Another v Secretary, Department of Social Security (2002) 65 ALD 79), being proceedings evincing an earlier familiarity gained by them of certain of the causes of action the subject of the present proceedings; the context of those earlier proceedings is conveniently described in the headnote to that report as follows (the appellants in these proceedings being referred to as Mr S and Mrs S):
'In 1986, Mr and Mrs S came to Australia as refugees. In 1991, Mr S's claim for invalid pension was rejected because he was permanently incapacity for work on his arrival in Australia and had not completed 10 years' residence; Mr S was then granted special benefit.
With effect from 1 January 1995, the Social Security Act was amended to allow refugees to qualify for a disability support pension (DSP) (which had replaced invalid pension) without 10 years' residence. On 19 June 1995, Mr S completed a special benefit review form and lodged it with the [DSS]. On 24 July 1995, the [DSS] invited Mr S to complete a claim form for DSP, [and] when Mr S lodged a claim on 5 October 1995, the respondent granted him DSP from that date.
The respondent subsequently declined to pay Mr S DSP from 19 June 1995. That refusal was affirmed by the Administrative Appeals Tribunal (the AAT). Mr S appealed to the Federal Court.
At the same time, Mr S and Mrs S commenced proceedings against the respondent under s 39B of the Judiciary Act 1903 (Cth), seeking orders by way of judicial review to require the respondent to grant DSP to Mr S from 1 January 1995 or 19 June 1995 and damages. Mr and Mrs S supported their claim for damages with allegations that the department had wrongly deprived Mr S of DSP and Mrs S of a wife pension for the period from 1 January - 24 July 1995, misled Mr and Mrs S as to their entitlements in that period and delayed in approving a pension payment for Mrs S.
The primary judge held that Mr S's entitlement to DSP arose on 19 June 1995 and allowed Mr S's appeal from the AAT, but dismissed the claim for damages. The appellants appealed to the Full Court of the Federal Court.'
42 The Full Federal Court (Beaumont, French and Finkelstein JJ) in that earlier litigation found unanimously found as follows:
(i) the primary judge's findings of fact contradicted the existence of any intention to cause harm on the part of the DSS officers; nor had it been demonstrated that any officer knowingly acted in excess of power, or with reckless indifference to the harm that was likely to ensue; for that reason, a cause of action against the DSS for misfeasance in a public office could not be made out;
(ii) the primary judge's findings that all officers, who dealt with the appellants, carried out their duties conscientiously and in good faith, left no room for a finding that any actions of the DSS were in any way directed against Mr and Mrs Scott, so as to support a cause of action for damages upon the case;
(iii) the Act was not to be interpreted as indicating an intention to confer a private right of action for a breach of any of the provisions now in question, so that Mr and Mrs Scott had no cause of action for damages for breach of statutory duty; and
(iv) the claim in negligence for failure to process the claims of Mr and Mrs Scott for pensions with due expedition was not sustainable against the Secretary, DSS.
43 However the Full Court in that earlier litigation divided on the issue as to whether there was a general common law duty of care in the Secretary of the DSS to advise Mr and Mrs Scott of benefits that might potentially be available under the Act, Beaumont and French JJ rejecting the viability of any such duty in the circumstances of the case, but Finkelstein J holding that it was 'at least possible' that the Secretary of the DSS was subject to a duty of care as to the manner in which a claim for benefit under the Act was processed, and so as to ensure that there was no failure to process a claim with expedition. Special leave to appeal from the Full Court's rejection of the appeal of Mr and Mrs Scott was refused by the High Court of Australia.
44 With the benefit of that earlier reasoning and decision of a Full Federal Court, the primary judge below examined each of the causes of action pleaded by Mr and Mrs Scott in the present proceedings, in the sequence which I will summarise below. I have adopted the same respective headings and subheadings as appear in his Honour's reasons, for ease of reference. The complexity and detail with which Mr and Mrs Scott apparently presented their cases below, and again in written and oral submissions in the present Full Court, and the similarity of the causes of action to most of those propounded in the earlier litigation against the Secretary of the DSS, renders it appropriate to record the findings of the primary judge below in some detail.
Causes of action involving breach of duty
(a) Specific statutory provisions : declarations and injunctions
45 Part of the relief sought by Mr and Mrs Scott below were declarations and injunctions, based upon alleged duties of the respondents under the general law to grant DSPs and special benefits to appellants entitled thereto. The primary judge pointed out that the duty imposed on the Secretary of the DSS, and in consequence on the delegate of the Secretary, to determine that a claim for a DSP should be granted, is conditioned by the Act on the Secretary (or the delegate) being satisfied that an appellant has qualified for a DSP and that the same is payable (s 114 of the Act). Similarly, the primary judge considered, the duty to determine that a claim for special benefit should be granted, is conditioned by the Act on the Secretary (or the delegate) being satisfied that an appellant is qualified for a special benefit, and that the same is payable (s 744 of the Act). In each case, his Honour thus emphasised, the grant of the pensioner benefit could not be made without the existence of the requisite satisfaction, and additionally unless a proper claim had been made, as required by ss 106 and 740 of the Act. The clear legislative intention of those statutory provisions, in the view of the primary judge, is that the process of granting a DSP or a special benefit involved administrative decision-making. Consistent with that legislative scheme was the statutory availability of three successive levels of merits review first, by an authorised review officer, secondly by the SSAT, and thirdly by the AAT. That legislative scheme for review demonstrated in his Honour's view the legislative intention that administrative review should not be by-passed by resort to curial remedies for judicial review such as declarations and injunctions, and that any judicial review was to be therefore limited to administrative review, whether by the comprehensively framed Administrative Decisions (Judicial Review) Act 1977 (Cth), or otherwise within the general law as to administrative, in contrast to judicial, review.
46 The primary judge distinguished the limited circumstances where a court may possibly declare that the Secretary or a delegate had in fact reached a certain level of satisfaction, that being apparently the basis upon which Heerey J, in the earlier Scott litigation at first instance, had made a declaration in favour of Mr Scott in relation to an issue as to whether payments of DSP should have been made from an earlier date than they were in fact made, on the footing that Mr Scott had made a proper claim on the earlier date. Heerey J had emphasised that once that issue had been determined in Mr Scott's favour, there was no other curial issue falling for determination in the context of the circumstances then before the Federal Court. However as the primary judge pointed out in relation to the present proceedings the declaratory relief sought is not whether the Secretary or a delegate had in fact reached a required state of satisfaction. Hence the Court could not, by injunction, compel the Secretary or delegate to reach the required state of satisfaction, but only to consider a proper claim according to law, if that step had not been already undertaken, being an injunction not sought in the present proceedings brought by Mr and Mrs Scott against the respondents.
47 Moreover the four declarations sought below in the present proceedings by Mr and Mrs Scott, as the primary judge pointed out, were divorced in terms from any specific instances of departmental conduct. Instead, what was being sought by way of declaratory relief was summarised below by the primary judge, as follows (as to which see [51] of the reasons for judgment below):
(i) the request of a person claiming the special benefit for a period of time to prepare a case of wrongful rejection of the grant of another pension or benefit constituted good reason for granting to that person the required time and the special benefit;
(ii) the assessment of impairment under the Impairment Tables by an officer of the DSS, who is not a medical officer and has not medically examined the claimant, was ultra vires;
(iii) an officer of the DSS is required to attempt to determine the payability of pensions and benefits to a person claiming a special benefit, without the requirement of claims for those pensions and benefits; and
(iv) an officer of the DSS is required to become familiar with the existing evidence of the 'payability' of pensions and benefits to the person claiming a special benefit without the requirement of claims having been made for those pensions and benefits.
48 Also sought below by Mr and Mrs Scott in the present proceedings was a mandatory injunction directed to Ms Pedler and Ms Williams, requiring them to become familiar with the existing evidence, and to consider the payability of pensions and benefits under pars (a) and (b) of s 729(2) of the Act, without the requirement of claims for those pensions and benefits from the person claiming a special benefit, and secondly, an injunction restraining two of the respondents Ms Williams and Ms Chrystal from assessing the impairment under the Impairment Tables of a person (ie Mrs Scott) claiming a DSP.
49 The primary judge described each of those claims for declaratory and injunctive relief as 'plainly unsustainable'. In relation to the declarations sought, his Honour's reason was that the declarations sought were not declarations of right within s 21 of the Federal Court of Australia Act 1976 (Cth). His Honour cited in support of that conclusion the reasons for judgment of Mason CJ, Dawson, Toohey and Gaudron JJ in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582, which referred in particular to the established principles that the jurisdiction of a court to grant declaratory relief '… is confined by the considerations which mark out the boundaries of judicial power', and that '[h]ence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions…', nor to answering a question which 'is purely hypothetical', or relates to circumstances that have not occurred and might never happen, nor if 'the Court's declaration will produce no foreseeable consequences for the parties'. Moreover the primary judge pointed out that it would not be a proper exercise of the judicial power of the Commonwealth to make a declaration that a person has engaged in the contravention of a statutory provision, unless some consequence in law flowed therefrom, nor to express general condemnation otherwise of a person's conduct, nor to declare a particular interpretation of a legislative provision unrelated to any facts.
50 The primary judge acknowledged that the declarations sought by Mr and Mrs Scott below 'obviously have their basis in the dealings or alleged dealings of [Mr and Mrs Scott] with [Misses Pedler, Williams and Chrystal]'. However by way of application of the principles summarised above, his Honour held that '[t]o the extent to which they are designed to embody condemnation by the Court of the conduct of [Misses Pedler, Williams and Chrystal] and other officers of the DSS, they could not be made, because nothing flows from them in the way of legal rights and obligations', and further, that such declarations would 'produce no foreseeable consequences for the parties', and '[t]o the extent to which they seek to deal with the future conduct of [Misses Pedler, Williams and Chrystal], the declarations sought are hypothetical, and are about facts that have not yet occurred and may never occur'. His Honour added that '[t]o the extent to which the court is invited to set out in a declaration a view of the meaning of a statutory provision, divorced from any factual circumstances, the making of them would not constitute an exercise of the judicial power'. The primary judge elaborated further upon his process of reasoning already outlined, but it is unnecessary to repeat those elaborations. It suffices to add that his Honour concluded that even if there was power in the Court to make the declarations sought by Mr and Mrs Scott, for the reasons already set out, and in the exercise of his discretion, the same should not be made.
51 Nor would the primary judge grant the mandatory and prohibitory injunctions sought by Mr and Mrs Scott, given that many of the considerations dictating that the declarations sought should not be made were also relevant to the grant or otherwise of injunctive relief. In the first place, the terms of the injunctions sought were directed to future events which might never occur, and related to hypothetical facts. Moreover it was open to officers of the DSS, in dealing with claims for special benefits, to request claimants to test their eligibility for other pensions or benefits by lodging claims for the same, at least for the purpose of determining whether certain types of impairment were in fact 'manifest', explicitly for the purposes of s 116 of the Act, sub-section (1) whereof reading as follows:
'The Secretary must direct that a claimant for disability support pension be examined by a medical practitioner or practitioners unless:
(a) it is manifest that:
(i) the claimant has physical, intellectual or psychiatric impairment of 20% or more under the Impairment Tables; and
(ii) the claimant has a continuing inability to work; or
(b) it is manifest that the claimant is permanently blind; or
(c) the claimant's rate of disability support pension, if granted, would be nil; or
(d) the claimant does not satisfy the requirements of paragraph 94(1)(d) or section 109 (age requirements) or paragraph 94(1)(f) or section 110 ( residence requirements).'
(Section 94(1)(d) addresses persons who have turned 16 years and Section 94(1)(f) appears to be now omitted from the Act). For the foregoing reasons, 'if for no other' the primary judge found, that Mr and Mrs Scott would not be entitled to the prohibitory injunction in the terms sought. In any event, for reasons earlier explained, the primary judge would have refused to grant the injunctions sought on discretionary grounds.
(b) Damages for breach of statutory duty
52 The primary judge next addressed the cause of action of Mr and Mrs Scott for damages for breach of statutory duty, and found that the same was also misconceived and therefore must also fail. His Honour cited principles enunciated by the High Court in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 424 (Brennan CJ, Dawson and Toohey JJ) to the effect that a cause of action for damages for breach of statutory duty arises where a statute, which imposes an obligation for the protection or benefit of a particular class of persons, '… is, upon its true construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection'. The primary judge then cited the following passage from the reasons for joint judgment of Beaumont and French JJ (with whom Finkelstein J agreed on the particular issue there addressed) in the preceding Scott litigation at [24] as follows:
'We agree with the Trial Judge that the Act is not to be interpreted as indicating an intention to confer a private right of action for a breach of any of its provisions now in question, given especially the existence in the legislation of particular mechanisms for the review of decisions made within the Department.'
53 Upon that footing, the primary judge concluded that he was bound to hold that a claim for damages for breach of statutory duty could not be maintained in the present proceedings, and that even if his Honour was not so bound, he should take the view that the claim could not succeed in the present case. The relevant considerations, so his Honour found, were similar to those which he had elsewhere discussed in relation to the question whether the Act was inconsistent with the existence of a common law duty of care. His Honour also observed that in their 'final written submissions', Mr and Mrs Scott had indeed stated they were not claiming a private right of action for breach of statutory duty.
(c) Common law duty of care
54 The primary judge initially observed that difficult questions arose from attempts to impose common law duties of care upon persons or entities performing statutory functions. His Honour referred to a number of judicial expressions of the forensic obstacles arising. For instance, attention was drawn to the basic principle restated in Cubillo v Commonwealth (No 2) 103 FCR at [1205], where O'Loughlin J, in the context of reviewing authorities on that subject, stated the basic principle that '[t]he breach of a public law right by itself gives rise to no claim for damages; a damages claim must be based on a private cause of action'. One of the further authorities to which the primary judge referred in that context of his reasons below was Crimmins v Stevedoring Industry Finance Committee (1999-2000) 200 CLR 1, where at [82] McHugh J, which whom Gleeson CJ agreed at [8], said as follows:
'Public law concepts of duty and private law notions of duty are informed by different rationales. On the current state of the authorities, the negligent exercise of a statutory power is not immune from liability simply because it was within power, nor is it actionable in negligence simply because it is ultra vires.'
55 The primary judge also referred to the following passage from the subsequent decision of the High Court in Sullivan v Moody (2001) 207 CLR 562, where at [65], the judgment of the Court reads as follows:
'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.'
56 The primary judge further cited in the present context the following passage from the joint judgment in the High Court of Gummow and Hayne JJ in Graham Barclay Oysters Pty Ltd v Ryan and Others (2002) 211 CLR 540:
'… the co-existence of knowledge of a risk of harm and power to avert or to minimise that harm does not, without more, give rise to a duty of care at common law. The totality of the relationship between the parties, not merely the foresight and capacity to act on the part of one of them, is the proper basis upon which a duty of care may be recognised. Were it otherwise, any recipient of statutory powers to licence, supervise or compel conduct in a given field, would, upon gaining foresight of some relevant risk, owe a duty of care to those ultimately threatened by that risk to act to prevent or minimise it. As will appear, the common law should be particularly hesitant to recognise such a duty where the relevant authority is empowered to regulate conduct relating to or impacting on a risk-laden field of endeavour which is populated by self-interested commercial actors who themselves possess some power to avert those risks.
The existence or otherwise of a common law duty of care allegedly owed by a statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime. The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence.
Where the question posed above is answered in the affirmative, the common law imposes a duty in tort which operates alongside the rights, duties and liabilities created by statute. In some instances, a statutory regime may itself, in express terms or by necessary implication, exclude the concurrent operation of a duty at common law…'
By reference to principles of the nature appearing in the citations from authority extracted above, the primary judge observed that two matters fell for consideration before it could be held that any one or more of the respondent officers or the DSS owed any duty of care to Mr and Mrs Scott in respect of the exercise or non-exercise of the subject statutory functions. The first matter was the nature of the relationship between Mr and Mrs Scott on the one hand and each of the present respondents on the other, the relevant inquiry being whether on ordinary common law principles, that relationship was such as to give rise to a duty of care. The second matter concerned the statutory regime pursuant to which each of the present respondents was obliged to exercise her functions. If that statutory regime disclosed a legislative intention to exclude a common law duty of care, either by expressly excluding such a duty, or by virtue of that regime being of its nature incompatible with such a duty, then in his Honour's view, there could be no common law duty open to be imputed.
57 Returning then to the primary judge's discussion of the Full Court's earlier decision in the Scott litigation, and the agreement of the majority with the primary judge in that previous litigation that there was no actionable common law duty owed to Mr and Mrs Scott in the circumstances postulated in that preceding litigation, attention was also drawn by the primary judge to the Full Court's observations made in relation to the approach of the High Court in Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225. The majority judgment referred to the distinction drawn in Shaddock between the duty of a local council to a purchaser of property to take reasonable care that information given in the council's certificate, for which the purchaser applied under a statutory authorisation, was accurate and the giving of general information as to a road widening proposal. In that context, the majority judgment in the earlier Full Court Scott decision continued as follows (inter alia):
'The position in Shaddock, where the Council was aware of a particular proposal, and failed to mention it, may, we think, be distinguished from the position of a Department administering social security legislation. It is one thing to expect [DSS] reasonably to communicate accurately the general range of benefits available; it is another to expect the Department to have sufficient knowledge of the personal circumstances of any particular applicant for social security, so as to be in a position to advise the applicant of specific benefits that might be available in his or her personal circumstances.
For completeness, we should mention one matter raised by [Mr and Mrs Scott] in the course of their argument. They suggested that they could claim damages in negligence for failure to process their claims for pension with due expedition. We see no basis for such a claim on the facts. But, in any event, our view is that such a claim, that is, for damages for alleged negligence of that kind, is not sustainable. It is true that mandamus or a similar form of judicial review will be ordered where a public duty has not been performed within a reasonable time, compelling the specific performance of that function forthwith… But, absent a claim for misfeasance (see above), common law damages cannot be claimed merely for failure to act with due expedition.'
58 The third member of the Court (Finkelstein J) did not dissent in the outcome, but as indicated by the primary judge below, his Honour expressed a contrary view in relation to the common law duty of care. After referring to English and Australian authorities, Finkelstein J said at [31] - [32] as follows:
'… The respondent's functions are not inconsistent with the existence of a duty of care. The respondent is responsible for the general administration of the Social Security Act: s 1295. He must consider each application for a claim and if an applicant satisfies the necessary criteria, he must ensure that the benefit is paid. Applicants who are entitled to benefits of the kind payable under the Social Security Act are generally in a vulnerable position. A duty to consider a claim for a benefit and the obligation to process the claim are not legislative in character. There is no reason in policy why a duty of care should not be owed. It is reasonably foreseeable that a person who is wrongly deprived of a benefit to which he or she is entitled, or who endures unreasonable delay in the receipt of a benefit, may suffer physical harm.'
59 Adopting the position that he was bound by the foregoing majority view, the primary judge in the present proceedings declared that he was obliged '… to hold, at least, that [Ms Pedler, Ms Williams and Ms Chrystal] did not owe to Mr and Mrs Scott any common law duty of care, either to advise them that benefits might be available, or to deal with their respective applications at or by any particular time or times'. His Honour added 'It may be that I am also bound to hold that no common law duty of care can co-exist with the statutory functions exercised by [Ms Pedler, Williams and Chrystal] under the Social Security Act'. In that context, the primary judge continued as follows at [63]:
'For several reasons, however, I propose to discuss that issue in greater detail. First, it is unclear how far the principle enunciated in Scott extends in relation to duties of officers under the Social Security Act generally. Second, there is a clear divergence of views between the majority on the one hand and Finkelstein J on the other. Third, it may be that the exercise needs to be undertaken separately in relation to each alleged duty of care, because different considerations may arise. Whilst there might not be a duty to advise, or to deal expeditiously with a claim, there might be a common law duty of care, with which the Social Security Act is consistent, in relation to other matters. The applicants in the present case plead broader duties than those rejected in their earlier proceeding.'
60 The primary judge thereafter proceeded to make certain obiter observations as to the circumstances in which the relationship between officers of the DSS and persons making claims for pensions or benefits under the Act could give rise to a common law duty of care. Those circumstances were described by the primary judge as follows:
'Officers of the DSS would ordinarily be aware that a person claiming a pension or benefit under the Social Security Act will be likely to lack financial resources, usually to the point of being dependent upon receiving some form of assistance from governments, charity or private philanthropy in order to subsist for any significant period. In many cases, it will be apparent that such a person will need guidance, and even assistance, just to make the claim. In other words, social security claimants can be seen as vulnerable, in the sense in which that term was used of stevedoring employees in Crimmins. At least those who deal directly with social security claimants can be classed as having a relationship with them of a kind that would ground a duty to take reasonable care in the performance of the statutory functions so that, if there be an entitlement, it be afforded to the claimant.'
61 The primary judge acknowledged that '[t]he analysis of the statutory provisions is not easy', and expressed the opinion that '[s]ome significance must be attached to the absence of any provision giving protection and immunity to primary decision-makers and authorised review officers, when compared with s 1338(1) of the Act'. Section 1338(1) was described by his Honour as affording similar protection to members of the AAT as that afforded by s 60(1) of the AAT Act in relation to the review of administrative decisions falling otherwise within its aegis. In that context, the primary judge entertained the proposition that '[t]his absence might tend to point to a legislative intention that suits for negligence should be capable of being brought against officers of the DSS in relation to the exercise of their functions', though on the other hand, his Honour observed that '[o]ther provisions of the Social Security Act point in the other direction, however'. Those other provisions were described by the primary judge variously, as follows:
(i) the range of considerations mandated by s 1296, to which the Secretary is to have regard in the administration of the Act;
(ii) the absence of any statutory requirement for the exercise of due care in the making of decisions under the Act;
(iii) the statutory emphasis on the 'delivery of services… in a fair, courteous, prompt and cost efficient manner';
(iv) the inconsistency in some circumstances with the establishment of procedures to ensure that abuses of the social security system are minimised;
(v) the responsibility of DSS officers for the disbursement of public funds, and the absence of any liberty of DSS officers to disburse the same otherwise than in accordance with authority contained in the Act; in that regard, reference was made by his Honour to s 1296(e) of the Act, which stipulates that '[t]he Secretary is, subject to any direction of the Minister, to have the general administration of the Act'; and
(vi) the importance of the systems of review of decisions under the Act, to which the Secretary is also required to have regard, pursuant to s 1296(1)(d) thereof, being the three levels of administrative review, to which I have earlier made reference.
62 The primary judge drew the following conclusions upon the issue as to the existence or otherwise of a common law duty of care attributable to the respondents to the present proceedings at [65]:
'… I have mentioned this system of administrative decision-making, with three levels of merits review, earlier in these reasons for judgment. It is a powerful indication that the legislature did not intend that the correctness of a particular decision should be challenged collaterally in proceedings in a court, such as proceedings for damages for negligence in the exercise of the statutory function. Coupled with the adoption of the satisfaction of the decision-maker as the foundation for a decision to make payments of pensions or other benefits, the system of administrative decision-making with merits review appears to be fatal to the notion that there should be a duty of care. The scheme of the Social Security Act is fundamentally inconsistent with the notion that an unsuccessful claimant for a pension or benefit should be entitled to sue for damages on the basis that the decision to deny the pension or benefit was the result of negligence on the part of the decision-maker. As I have already pointed out, such a claim would require that the court place itself in the shoes of the decision-maker and decide that he or she ought to have been satisfied. It would make the satisfaction of the court rather than of the Secretary or the delegate, the effective determinant of entitlement.'
63 The primary judge thus rejected the minority view of Finkelstein J in Scott upon the question of the imputation of a common law duty of care. As the primary judge pointed out, although Finkelstein J referred to s 1295 of the Act as rendering the Secretary responsible for the general administration of the Act, his Honour implicitly assigned no significance to s 1296, which catalogues the matters to which the Secretary of the DSS is required to pay regard '[i]n administering this Act' (being the introductory words to s 1296). The primary judge considered Finkelstein J had wrongly postulated that the Secretary of the DSS had the duty to ensure that a benefit is paid if an appellant was to satisfy the necessary criteria, since that was not an accurate representation of the full implications of the scheme of the legislation. It is the satisfaction of the Secretary which is the criteria stipulated by s 114 of the Act for qualification for a DSP, and by s 744 of the Act as to qualification for a special benefit. The primary judge correctly postulated that the requirement for the satisfaction of the Secretary is 'fundamentally inconsistent with the notion that a court can decide that a claimant ought to have been granted a pension or benefit, so that damages for negligently failing to grant that pension or benefit can be awarded'. The minority view adopted by Finkelstein J would tend to render the administration of this complex legislation unworkable, at least in any practical sense. In my opinion therefore, it is appropriate to confirm at once that the primary judge rightly found that Mr and Mrs Scott were not entitled in principle to bring the present proceedings against any of the respondents based on any supposed common law duty of care.
(d) Breach of duty both statutory and at common law
64 The next segment of the reasons for judgment of the primary judge related to alleged breach of duty on the part of each of three respondents, both statutory and at common law. Mr and Mrs Scott had framed that aspect of their statement of claim for breach of duty of care, statutory and common law, with the appendage 'or otherwise'. Consistently with his Honour's conclusions upon the causes of action for breach of the duties of care allegedly conferred by the Act and the common law, the primary judge further found that 'there was no obligation on any of the respondents in absolute terms'. The reasons provided by the primary judge for so concluding that there was no other duty attributable relevant to the respondents are summarised below.
65 No obligation was relevantly imposed on the respondents by the Act, such as to give rise to a duty generally of the nature here propounded by Mr and Mrs Scott. In particular, the terms or scope of s 1239 did not require any of them to review the earlier decisions of Mr McLeod or of Mr Peak by way of refusal to grant a DSP to Ms Scott, the section being framed as a grant of power or authority to the Secretary to review the decisions of officers, and not as the imposition of a duty or obligation. So far as is material, s 1239 of the Act reads as follows:
'1239 (1) The Secretary may review:
(a) a decision of an officer under this Act;
…
if satisfied that there is sufficient reason to review the decision.
(4) The Secretary may:
(a) affirm the decision; or
(b) vary the decision; or
(c) set the decision aside and substitute a new decision.'
As foreshadowed, the primary judge rightly found that the section is framed as a grant of power, not as the imposition of a duty, and could not be implicitly construed otherwise. Plainly in my view that finding is correct. As the primary judge pointed out, '[I]t is absurd to suppose that there was an intention, by means of s 1239, to set up a system whereby every officer of the DSS was constantly required to review every decision of every other officer the subject of complaint or challenge.
66 It is unnecessary to record the full extent of the primary judge's reasoning set out in support of his rejection of the imputation of any such duty. Moreover even if there existed any such duty imposed on any of the respondents, the primary judge was unable to distil any basis for a finding of breach thereof. In that regard the following findings (inter alia) were made by the primary judge, by way of illustration, which in my opinion cannot reasonably be faulted:
(i) given that s 729(2) of the Act permitted the grant of special benefit only if no social security pension or other social security benefit was payable in relation to any relevant time, it was 'perfectly reasonable' for Ms Pedler to have put in place another application by Mrs Scott for a DSP, as a convenient means of determining whether Mrs Scott satisfied the statutory requirements in that regard;
(ii) it was reasonable for Ms Williams to have taken the same view, and to have encouraged Mrs Scott to reapply for the DSP, even though the employment function of Ms Williams involved no more than transmitting the necessary documents to Ms Chrystal as the Authorised Review Officer;
(iii) it was also reasonable for Ms Chrystal to have proceeded to deal with the claim for special benefit on a different basis, having secured the co-operation of Mrs Scott 'in speeding up' her application to the SSAT for review of the DSP decision; and
(iv) even if there was to have been any duty attributable to Ms Chrystal to deal with Mrs Scott's claim for special benefit reasonably promptly, there was no breach of any such duty on her part in the particular circumstances of the case, for reasons which the primary judge set out in compelling detail.
67 Moreover the primary judge further found that the case advanced by Mr Scott to the effect that action should have been taken to increase the rate at which the special benefit was paid to Mr Scott should also fail. The primary judge provided the following reasons in that regard at [71]:
'… According to Ms Chrystal, they established as a target the standard that 95 per cent of claims by persons who had no income, and who had been rejected at the first stage, be resolved by an Authorised Review Officer within 14 days of request for review and 75 per cent of all cases be resolved within 28 days. Ms Scott also asserted that there was a 14-day guideline in relation to decisions at the first stage. The guidelines did not express absolute standards. There was no expectation, or entitlement, that all cases, or any specific case, would be dealt with inside the specific period. By definition, therefore, it was contemplated that some claims would not be dealt with inside that period. It is not therefore possible to ground a claim for breach of duty on the failure to deal with a specific claim inside the period. Account must also be taken of the workload of the DSS at the time. Because of the change of law, which caused Ms Scott to become ineligible for partner allowance on 30 June 1995, there was an influx of claims from persons in the same position. The Northcote office of the DSS had to deal with its share of those claims. There is no evidence that extra staff would have been available, if requested. In the light of the change of legislation, it is likely that every office of the DSS was facing a similar influx of claims. The fact that Ms Scott's claim for special benefit had some complexities, arising from the fact that her earlier claim for DSP had been rejected, and she had indicated her intention of pursuing a review of that rejection by the SSAT, but had not yet done so, was enough to take her claim outside the general run of cases. The allowance in the guidelines for the possibility that not all cases would be dealt with inside the period specified was no doubt made because it was recognised that there would be cases like that of Ms Scott.'
68 The concluding issue raised by Mr and Mrs Scott in the present segment 'Breach of duty' related to a complaint that action should have been taken to increase the rate at which special benefit was being paid to Mr Scott. At that time, the respondents were involved in a consideration of the question whether Mrs Scott should receive a special benefit, and as a result of Ms Chrystal's subsequent decision, Mrs Scott did receive a special benefit with payments thereof backdated to 3 July 1995. The primary judge observed that if Mrs Scott had not received retroactively a special benefit, it might have been that an application of the assets test in relation to Mr Scott would have resulted in a higher payment of the special benefit to him, on the basis that 'he was partnered with Ms Scott, who was getting neither pension nor benefit, for the purposes of the calculation under s 733'. However as the primary judge rightly pointed out, the occasion did not arise for the making of this calculation, 'because special benefit was granted'. His Honour concluded his findings on this issue at [72] as follows:
'… No attempt was made by evidence to show what the results of the application of the assets test to both applicants as a couple resulted in and how it would have compared with the application of the assets test to Mr Scott on the basis that Ms Scott was not receiving any pension or benefit. No attempt was made to show by evidence that Mr Scott's rate of special benefit could have been increased without it exceeding the limit imposed by s 746. If, as s 746 provided, the rate was discretionary, it could not be shown in any event that the discretion should have been exercised in a particular way, so as to found a breach of statutory duty for failing to exercise it. There was no absolute duty to increase the rate. There may not even have been a power to do so. If there were a power to do so, it was not shown that it was unreasonable to have failed to exercise it. Any exercise of it in favour of Mr Scott might have resulted in a subsequent adjustment, once Ms Scott was granted special benefit retrospective to 3 July 1995.'
Sub-section 746(1) stipulated that '[t]he rate of a person's special benefit is… determined by the Secretary in his or her discretion', but sub-section (2) imposed a ceiling not exceeding the job search allowance or newstart allowance, if payable to the person concerned.
69 In the result, the causes of action of Mr and Mrs Scott for breaches of duty were dismissed by the primary judge.
Causes of actions involving intentional infliction of harm
70 The primary judge dismissed the claims of Mr and Mrs Scott for trespass, on the basis at least of absence of evidence, the pleadings being described by his Honour as being, at best, obscure in relation thereto. The cause of action based on the Beaudesert principle was dismissed at the threshold in light of the rejection by the High Court of the viability thereof as part of the law of Australia, in Northern Territory v Mengel (1995) 185 CLR 307 at 345 (per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ). The cause of action for trespass on the case pleaded by Mr and Mrs Scott was rejected by the primary judge as not recognised by of the modern law of torts: see The Law of Torts by Fleming 9th ed pp 21-23 (LBC Sydney 1998). Their further claim for infringement of absolute rights was rejected by the primary judged as simply untenable. As to Mrs Scott, for reasons already recorded, the primary judge found that she had no absolute right to receive either the DSP or a special benefit, nor did Mr Scott have the right to have his rate of special benefit increased at any particular stage. Moreover as the primary judge pointed out, acting 'contrary to law' or 'unlawfully' added nothing to the respective cases of Mr and Mrs Scott otherwise pleaded.
71 As to what the primary judge described as 'the possible emerging tort of intentional infliction of harm by unlawful act', his Honour referred to the discussion in Sanders v Snell (1998) 196 CLR 329 at [30] - [36] (Gleeson CJ, Gaudron, Kirby and Hayne JJ), from which his Honour concluded that the claim as to committal of any unlawful act was not satisfied in the circumstances of the case, since '[i]t is not sufficient that the act be unauthorised in the sense that it is ultra vires and void'. The further reasons of the primary judge were that even if that tort is cognisable in Australia, Mr and Mrs Scott could not invoke, in the circumstances of the case, the element of the tort which requires identification of a positive act, and moreover that to the extent that positive acts were purportedly relied on, those alleged acts were in no sense unlawful, since it could not be said that a failure to reach the state of satisfaction as to fulfilment of criteria is an unlawful act in any sense. In addition it could not be said, the primary judge also pointed out, 'that a failure to reach the state of satisfaction as to fulfilment of criteria is an unlawful act in any sense', and furthermore that it was no part of his functions to decide whether the Secretary or a delegate should have been relevantly satisfied. Moreover if the tort as to intentional infliction of harm by an unlawful act existed in Australia at all, and was not limited in scope to interference with trade or business interests, no such categories of interests being of course here involved, there was required to be established an intention to injure, which (as indicated by my discussion of the tort of misfeasance in a public office) was not demonstrated by the evidence.
72 That left for consideration the claims of Mr and Mrs Scott for misfeasance in public office. In Tahche v Abboud [2002] VSC 42, Smith J observed at [16] - [19] that the High Court has indicated the limits of this tort remain to be defined. After referring to Mengel, Sanders and other Australian and English authorities, his Honour identified the basic elements of this tort as follows:
'(1) the defendant must hold a public office;
(2) there must be an invalid exercise of power or purported exercise of power;
(3) the defendant must be shown to have acted with the necessary intent; and
(4) the plaintiff must suffer damage as a consequence of the exercise of power or purported exercise of power.
The second requirement, the invalid exercise of power, includes an absence of power and acts invalid for want of procedural fairness. It includes the exercise of a power for an improper purpose, including the purpose of a specific intent to cause injury. It arguably includes an exercise of power for irrelevant considerations or for considerations that were manifestly unreasonable.
As to the third element, intent, it includes acting for the improper ulterior motive of intent to cause injury to the plaintiff ("targeted malice"). The requisite intent also includes acting with knowledge that there was no power to so act and that the act would cause or be likely to cause injury to the plaintiff, or proceedings with reckless indifference as to the existence of the power to engage in the conduct in question and its consequences.
What is involved is an abuse of power, and it is the absence of an honest attempt to perform the functions of the office which is at the heart of the tort.'
73 The primary judge found that the only one of the four basic elements above described was here present, namely that of the holding of public office by the alleged tortfeasors. Each of the respondents to the proceedings, as an officer of the DSS holding one or more delegations from the Secretary, held a public office. The primary judge had already found that there was no invalid exercise of power (ante). Moreover a failure to reach the requisite mental state of satisfaction could not be characterised, in his Honour's view, as unauthorised or lacking power, the making of a decision adverse to a claimant for special benefit being simply an exercise of power. Though it was open to Ms Williams and Ms Chrystal to request Mrs Scott to make a further application for a DSP, there was no obligation imposed upon them to do so, as the primary judge rightly pointed out. Nor was there any obligation upon any of the respondent officers, as his Honour further pointed out, to review the earlier DSP decisions, or to invite any other officer to do so, or to increase the rate of special benefit being paid to Mr Scott. Only if his Honour was wrong in forming those conclusions would it have been necessary, the primary judge considered, to address the questions of purpose, intention or knowledge, and the question of dishonesty, on the part of any of the respondents. The primary judge examined the evidence relating to the conduct of each of the respondents, and concluded that Mr and Mrs Scott could not succeed with respect to any of the causes of action involving intentional infliction of harm on the part of any one or more of the respondents.
74 Specifically as to the conduct relevantly of Ms Pedler, the primary judge made the following findings:
(i) it was clearly established on the evidence that Ms Pedler had no improper motive at all; rather her motivation was a desire to carry out her duties in a way that would assist Mrs Scott to succeed in her claim for special benefit, if it turned out that Mrs Scott was entitled to succeed in that regard; that could not constitute an improper purpose;
(ii) Ms Pedler had no intent to cause injury to Mr and Mrs Scott; she was entitled, and indeed obliged, to act on the footing that if Mrs Scott was entitled to the DSP, as she claimed to be, she would not be entitled to a special benefit (s 729 of the Act so provided);
(iii) because of Mrs Scott's express wish to press for review by the SSAT of Ms Pedler's decision relating to the DSP, and the delay occasioned in doing so, Ms Pedler was entitled to suggest that one way of facilitating the processing of the special benefit claim was to test Mrs Scott's eligibility for the DSP by a further application; that suggestion, in his Honour's view, was made 'from the purest of motives'; and
(iv) Ms Pedler did not knowingly exceed any power otherwise exercisable by her, nor acted with reckless indifference as to the existence of any power which she could have exercised; instead Ms Pedler acted honestly 'throughout'.
75 Specifically as to Ms Williams, the primary judge found the assessment of her mental state to be 'slightly more complex'; she expressed in her affidavit views critical of Mr and Mrs Scott in the following terms:
'(i) '[i]t appeared as if the applicants were willing to deliberately place themselves in distress in order to validate their views about their treatment from those within the department with whom they came into contact.'
(ii) '[b]eing aware of [Ms Scott's] conduct with the department that extends back as far as 1993 I believe that [Ms Scott] will always have some complaint against the department or some employees of the department.''
His Honour observed that those comments were made by Ms Williams' despite her acknowledgement she had never met with, or spoken on the telephone to, either Mr or Mrs Scott. Ms Williams maintained moreover the denial that she had ever considered the correctness of Ms Pedler's decision to refuse Mrs Scott's special benefit until she was confronted with the first sentence of her letter to Mrs Scott of 11 August 1995 (see [18] above). Nevertheless the primary judge declined to characterise those denials of Ms Williams as deliberate falsehoods, or evidenced an improper purpose on Ms Williams' part amounting to an intention to injure.
76 Despite the negative views expressed by Ms Williams in her affidavit in relation to Mrs Scott, the primary judge was satisfied that Ms Williams did not intend to inflict harm on Mrs Scott, and further that Ms Williams honestly believed that a further application by Mrs Scott for the DSP would enable Mrs Scott to establish whether or not she was entitled thereto. His Honour pointed out that any such further application would either have led to payments of the DSP to Mrs Scott, if she was entitled thereto, or would have led to payments of the special benefit to her because she would not have satisfied the criterion for entitlement to the DSP. His Honour was thus satisfied that Ms Williams' motive was to assist Mrs Scott to have the question of her entitlements resolved.
77 As to Ms Chrystal, it was her evidence that it was she who actually granted the special benefit to Mrs Scott, on the basis that Mrs Scott would expedite her application to the SSAT for review of the DSP decision, and she did not herself approve the DSP decision. The primary judge found that Ms Chrystal did not personally approve the DSP decision, and further that in so far as she delayed the extent of her personal involvement beyond the time laid down in the departmental timeline guidelines, Ms Chrystal did so, in the view of the primary judge, because the case was an unusual one and required careful consideration. In his Honour's view, there could be no question of any improper motive, ulterior purpose, or intention to injure on the part of Ms Chrystal, or that she approached the performance of her statutory functions otherwise than honestly.
78 The primary judge was satisfied moreover that none of the respondents harboured a purpose of preventing Mrs Scott from succeeding in her claim for the DSP, by way of depriving her of the time she needed to gather more medical evidence as to her condition, as was alleged against the respondents. The primary judge was further satisfied that if the respondents, or any of them, did suggest to Mrs Scott that she should undergo psychiatric assessment with respect to her claim for the DSP, they did not intend that Mrs Scott should be thereby 'labelled' as having a psychiatric disease or condition.
79 The primary judge also found that although each of the respondents held a public office at the material times, there was no invalid exercise of power or purported exercise of power on the part of any of them. Nor in his Honour's view was there any absence of power for anything any of the respondents did or committed, or any want of procedural fairness on part of any of them in exercising any such powers. Moreover the primary judge found that none of the respondents acted in relation to Mr and Mrs Scott for an improper purpose or took into account irrelevant or unreasonable considerations, or had an ulterior motive or intent to cause injury, and further that if there was an absence of power to do any relevant act or undertake any material course of conduct, none of the respondents had knowledge of any such absence, nor did any of them proceed with reckless indifference to exercise the power. Consequently his Honour found that the claims of Mr and Mrs Scott against the respondents for misfeasance in public office must fail.
80 In summary, therefore, the primary judge found that Mr and Mrs Scott could not succeed in establishing any of their causes of action involving intentional infliction of harm.
81 The conclusions of the primary judge summarised above rendered the assessment of damages unnecessary, but nevertheless his Honour gave consideration thereto, and said that he would have found it impossible to arrive at a figure for any award of general damages, had the appellants succeeded in relation to any of the causes of action which they propounded. The primary judge further concluded that the appellant had not made out in any event any case for special damages, the matters complained of not being causative thereof, nor any case for aggravated or exemplary damages. In the latter case in particular, his Honour found that even if Mr and Mrs Scott had succeeded in establishing any of the causes of action which they had propounded, it was highly unlikely that they would have also succeeded in establishing that any wrongful act of any of the respondents was aggravated by the manner in which it was done, or that any of the respondents were deserving of punishment on the ground of moral retribution or deterrence. Far from acting in any high-handed fashion, his Honour found that each of the respondents acted out of the best of motives, in an attempt to assist Mrs Scott to establish an entitlement to be paid either the DSP or a special benefit, and if any one or more of them did err, it could only have been in some technical way which did not merit any additional compensation to Mr and Mrs Scott, nor any condemnation.
82 Finally as to the findings below, I should add, in the context of consideration of the costs orders which should be made, the primary judge observed that it would have been open to Mr and Mrs Scott to have raised, in the context of the earlier proceedings conducted at first instance before Heerey J, all of the complaints pursued in the present proceedings, and to have added as respondents to those earlier proceedings the three respondents to the present proceedings. Instead, so the primary judge found, Mr and Mrs Scott chose to start afresh by way of the present proceedings with different respondents, and to attempt to broaden the issues and to differentiate them from those the subject of the earlier unsuccessful proceedings.
The notice of appeal filed by Mr and Mrs Scott
83 Mr and Mrs Scott filed a notice of appeal, and subsequently an amended notice of appeal, from the judgment of the primary judge. The amended notice of appeal is expressed to relate to that part of the judgment of the Federal Court given on 27 June 2003 that refers to:
'(i) 'the common law duty of care in the performance of duties and functions/powers under the Social Security Act 1991… except the duty to advise as to the available benefits and to deal with the applications at or by any particular time or times';
(ii) 'breach of the duty of care in the performance of duties and functions/powers under the Act except the duty to advise as to the available benefits and to deal with the applications at or by any particular time or times';
(iii) 'causes of actions involving negligent and intentional infliction of harm except cause of [sic] breach of statutory duty'; and
(iv) 'damages'.'
84 Thereafter follows 29 principal grounds of appeal (incorrectly numbered, in that there are two grounds of appeal which are both numbered '3'), and a further 27 paragraphs of what may be described as sub-grounds or particulars purportedly relating to most of the principal grounds, comprising in all some 11 pages of complaints. At least most of that material does not constitute grounds of appeal as stipulated by Order 52 rule 13 of the Federal Court Rules, but rather a combination of unspecific assertions not readily capable of identification with specific findings of the primary judge material to his Honour's findings. Yet Order 50 rule 13(2) requires that a notice of appeal state:
'(a) whether the whole or part only, and what part, of the judgment is appealed from;
(b) briefly, but specifically, the grounds relied upon in support of the appeal; and
(c) what judgment the appellant seeks in lieu of that appealed from.'
The amended notice of appeal fell substantially short of compliance with that sub-rule in all respects, as will later partly appear. Before moving to the headings and sub-headings of the written submissions of the appellants, they being in substance the same as those the subject of the subsequent oral submissions of Mrs Scott presented on behalf of herself and Mr Scott, it is appropriate to draw attention to recent dicta of Full Federal Courts concerning principles required to be observed in resolving appeals from decisions of the Court at first instance. At least most litigants who appear in person, rather than by a legal representative, encounter difficulty in comprehending and observing these principles governing the pursuit and conduct of appeals, and the submissions of the present appellants have evinced no exception.
85 In Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359 at 369, Beaumont and Lee JJ as members of a Full Court said as follows:
'However the hearing of an appeal in this court is neither a trial de novo nor a trial of the case afresh on the record… and the court is not obliged to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the trial juge and do not support the judgment. The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be so satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes… states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected…'
86 In Cabal v United Mexican States (2001) 108 FCR 311 at [224], a Full Court (Hill, Weinberg and Dowsett JJ) said as follows:
'This court can consider whether he fell into appealable error in that regard but it will not approach that evidence as though this were a rehearing de novo in which his Honour's views count for nothing. If, after giving full weight to his Honour's views, we are persuaded that the conclusions which he reached were erroneous we must set aside his findings of fact. We cannot however simply substitute for his Honour's findings of fact those findings which we would have made had we been the judges on review who determined this matter at first instance.'
87 Most recently, in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] 55 IPR 354 at [4], Branson J restated the relevant principles in the terms set out below (Weinberg and Dowsett JJ in separate reasons for judgment joined with Branson J in dismissing the appeal):
'… Not every grievance entertained by a party, or its legal advisors, in respect of the factual findings or legal reasoning of the primary judge will constitute a ground of appeal. Findings as to subordinate or basic facts will rarely, if ever, found a ground of appeal. Even were the Full Court to be persuaded that different findings of this kind should have been made, this would not of itself lead to the judgment, or part of the judgment, being set aside or varied. This result would be achieved, if at all, only if the Full Court were persuaded that an ultimate fact in issue had been wrongly determined. The same applies with respect to steps in the primary judge's process of legal reasoning. Although alleged errors with respect to findings as to subordinate or basic facts, and as to steps in a process of legal reasoning leading to an ultimate conclusion of law, may be relied upon to support a ground of appeal, they do not themselves constitute a ground of appeal.'
I have taken these dicta into account in examining the submissions of the parties in the present appeal. As might be expected of litigants appearing in person having no legal training or experience, neither the grounds of appeal, nor the submissions of the appellants in writing and orally given, have adhered to or observed the principles discussed in the foregoing citations of authority to any material or satisfactory extent.
The appellants' submissions and my observations and conclusions thereon
88 In the earlier proceedings brought by Mr and Mrs Scott against the Secretary of the Department of Social Security, unsuccessfully both at first instance and on appeal, Beaumont and French JJ as two of the members of the Full Court, which heard that earlier appeal, adopted the following approach in relation to the submissions there made by Mr and Mrs Scott, both oral and written, which were seemingly as lengthy and complex, and at times obscure, as those placed before the Full Court in the present appeal:
'The appellants advanced many arguments in support of their appeal in their extensive written and oral submissions. It would be impracticable to attempt to explore at length every one of their complaints. In the circumstances, we propose to adopt the approach taken by other full courts in such situations and to confine our reasons to the issues raised that are both significant and consequential.'
A similar approach in principle must here be adopted, with particular emphasis on the description significant and consequential. The written submissions of Mr and Mrs Scott, and the oral submissions of Mrs Scott, evinced an inadequate comprehension of what may be legitimately challenged on appeal in relation to adverse findings of a single judge, both factual and as to applicable legal principles. So much is to be usually expected where unqualified litigants seek to represent themselves as appellants. The inevitable consequence has been doubtless the exposure of the respondent litigant to greater legal cost.
89 The introductory written submissions of the appellants Mr and Mrs Scott provided to the Full Court in the present proceedings, being in the nature of an opening summary of their case on appeal, read as follows:
'Judgment of the Court below is influenced by 5 main errors:
(1) alleged no existence of specific statutory duty to assess applications for special benefit ("SB") within the constraints set out by the Social Security Act 1991 (Cth) ("the Act");
(2) no detection of legal constraints when a psychiatric examination of an involuntary patient is involved;
(3) no detection of prejudgement and exclusion of the second appellant's >20% physical impairment of the second and third respondent in 1995;
(4) no detection that the intention of the respondents was not to recognize >20% physical impairment of the second appellant in 1995 and at all; and
(5) wrong determination about no duty to review under s.1239 of the Act in the case of the second appellant.'
The references above to the second appellant are of course to Mrs Scott, and to the second and third respondents are of course references to Ms Williams and Ms Chrystal. Section 1239 of that Act has been already extracted, to the extent here material, in [65] above. The above so-called '5 main errors' do not, at least in any satisfactory way, disclose appealable errors.
90 Thereafter followed in this written material furnished by the appellants eighteen principal submissions (whereof fourteen contain certain sub-paragraphs in the nature of particulars or elaborations), those principal submissions being framed as follows:
'1. Absence of power to require other applications/claims from the second appellant by the first and second respondent
…
2. Absence of power to reject the SB application by the first respondent and to approve that decision by the second respondent
…
3. Absence of power to reject the application for SB by the first respondent and to approve that decision by the second respondent when no notification of the second appellant of any requirement
…
4. Reckless indifference as to the existence of power to require a medical examination; knowledge that no power to require other applications/claims
…
5. Manifest unreasonableness in requiring a DSP application for the sole purpose of obtaining a psychiatric examination of the objecting second appellant
…
6. Absence of power to require an application for a DSP for the purpose of obtaining psychiatric examination of the objecting to that examination second appellant
…
7. Absence of power and knowledge of no power to review by the second respondent
…
8. Lack of honesty of the third respondent in her conclusions, not finding an error, and agreement with the DSP rejection by Mr Peak in 1993
…
9. Absence of power and knowledge of no power to make medical diagnoses by the third respondent
…
10. Lack of honesty of the third respondent
…
11. Absence of honesty in the performance of functions by the second respondent
…
12. Duty to exercise statutory power under s.1239 of the Act
…
13. The Court below erred that no precise effects of starvation were presented (AB220.94) and that there were difficulties of causation (AB221.95) (AB215.81)
…
14. The Court below should have hold [sic] that it was unreasonable to have failed to increase the first appellant's SB to the level payable to a single person and at the same time intentionally not to have granted a SB to the second appellant
15. Wrong rejection of the cause of action of intentional infliction of harm by unlawful act/Beaudesert principle/misfeasance 3rd & 4th element
…
16. The Court below erred that the second appellant did not have the absolute right (1) to have the application for a SB determined according to the Act, that includes without requests/requirements for other applications; (2) not to be coerced by respondents to be examined by a psychiatrist on an involuntary basis; (3) not to have her physical impairment excluded by respondents for a determination
17. Rights and duties claimed in Scott v S,DSS [1999] FCA 1774 (1999) 57 ALD 627 have not been tested. Motion on that point is pending in the High Court (AB60-61.para 3,AB65-80). The once-and-for-all rule may apply to the above proceeding, therefore appellants are asking for no assessment of damages at this point of time
18. If the Court accepts these submissions, appellants are also asking for costs'
To keep these reasons for judgment within some semblance of reasonable bounds, the numerous particulars to pars 1 to 15 above have not been reproduced, but the theme thereof may be understood from the principal submissions respectively introducing the same reproduced above.
91 The submissions of Mr and Mrs Scott (comprising 10 pages and an additional three pages in reply) evinced the input of considerable research into judicial authorities in purported support of propositions for which those precedents are cited, and of purported interpretations of numerous sections or sub-sections of the Act in relation to propositions advanced. In some few instances, it may be arguably said that the proposition for which an authority or provision of the Act has been cited is broadly correct per se. However in those instances, and in relation to the remainder of the submissions of the appellants, each proposition advanced by the appellants provided or involved no apparent relevance or significance to a material finding of the primary judge, at least of a decisive nature, such as to have required any modification or reversal of the material finding purportedly addressed, and as a consequence, the setting aside of the judgment below in whole or in part, and the remission to the Court at first instance of issues for further consideration and determination. In short, what the appellants' submissions failed to undertake is the identification of any decisive findings of the primary judge sought to be attacked, and any juridical basis for setting aside any such findings.
92 Mr and Mrs Scott as appellants therefore faced formidable barriers to the successful prosecution of their present appeal, in the light of the grounds of appeal which they formulated in the amended notice of appeal, and in any event of the following matters in my opinion of decisive significance.
93 The first such barrier is the earlier finding of all members of the Full Court in Scott, in the context of the appellants' previous litigation against the Secretary, Department of Social Services (ante), and in reliance upon authority such as Byrne, that the Act is not to be interpreted as evincing the intention to confer a private right of action for breach of statutory duty, given at least the stipulation by the Act of mechanisms for the review of decisions previously made by officers of the DSS. That formidable hurdle is not in my opinion circumvented by resort to subsequent legal action framed against the three officers of the DSS in person as respondents, in lieu of the Secretary of the Department (the respondent of course to the previous unsuccessful Scott litigation). The Secretary alone is designated by ss 207 and 208 of the Act effectively as the decision-maker in respect of social security claims. Indeed, as I have earlier recorded in [53] above, the primary judge recorded the apparent acceptance by the appellants of that proposition below, though they appear nevertheless to have pursued the same in the course of submissions on the appeal, notwithstanding the third ground of appeal (reproduced in [83] above).
94 The second is the majority finding of the previous Full Court in Scott that the Secretary of the Department of Social Services is not subject to a common law duty of care in favour of the appellants for social security benefits in relation to the giving of information as to potential benefits that might be available under the Act (thereby distinguishing the circumstances the subject of the earlier decision of the High Court in Shaddock).
95 The third consists of the following findings of fact made by the primary judge below in favour of the respondents to the present appeal (being of course Ms Pedler, Ms Williams and Ms Chrystal):
(i) the reasonableness of the conduct of each of the respondents in the performance of their respective roles or functions as officers of the DSS in addressing Mrs Scott's claims (and also the claim of Mr Scott) for social security benefits (see [66] -[68] above);
(ii) the absence of intent on the part of each of the respondents to harm Mr and Mrs Scott by an unlawful act, it being irrelevant that the act may have been beyond power (see [71] above);
(iii) the absence of any conduct constituting misfeasance in public office on the part of Ms Pedler, and on the contrary, the undertaking of her duties in relation to Mr and Mrs Scott with honesty and without intention to injure and without reckless indifference to the exercise of power (see [72] - [74] above);
(iv) the absence of misfeasance in office on the part of Ms Williams, including any committal of deliberate falsehoods, or any harbouring of improper or ulterior purposes or of any intention on her part to injure or harm Mrs Scott, but on the contrary, the existence of a motivation of Ms Williams to assist Mrs Scott in the resolution of her social security entitlements (see [73] and [75]-[76] above);
(v) the absence of any misfeasance in office on the part of Ms Chrystal, including carelessness, improper motive or ulterior purpose on the part of Ms Chrystal, and the absence of any intention on her part to injure Mrs Scott, and of any performance of her statutory functions other than honestly (see [72] and [77] above);
(vi) as to each of the respondents, the absence on their part of any purpose of preventing Mrs Scott from succeeding in her claim for the DSP, and in particular by way of depriving her of the time Mrs Scott needed to gather more medical evidence, and the absence also of any invalid exercise or purported exercise of any powers, or of any want of procedural fairness in exercising any powers, or of acting in relation to Mr and Mrs Scott for any improper purpose (see [78] - [79] above); and
(vii) further as to each of the respondents, the absence of any conduct undertaken for an improper purpose, or which took into account irrelevant or unreasonable considerations, or which evinced any ulterior motive or intent to cause injury; moreover the absence of any knowledge of, or reckless indifference, to the doing of any act or undertaking of any course of conduct if, contrary to his Honour's findings, any of the respondents did have knowledge of any absence of power, or else exercised any power with reckless indifference (see again [79] above).
96 As to the so-called '5 main errors' advanced by the appellants' written submissions as set out in [89] above, the respondents submitted that a number of fundamental matters were at least misconceived by the appellants, to the extent set out below:
(i) for the appellants to assert the primary judge held that there did not exist a 'specific statutory duty to assess applications for special benefit… within the constraints set out by the Social Security Act…' was to misconceive the nature and extent of that duty as explained by the primary judge below, namely a duty imposed upon the Secretary, pursuant to s 744 (ante) of the Act to determine such applications, if the Secretary was to become satisfied that an appellant was qualified for a special benefit and further that the benefit was payable; accordingly any redress in relation to the exercise of that power or authority of the Secretary might only be undertaken by administrative processes conducted according to administrative law, and no cause of action was available for damages at common law or for breach of statutory duty against the Secretary (as earlier established in Scott), much less against any of the respondent subordinate officers of the DSS involved in the present proceedings;
(ii) no consequences of any relevance or significance in law flowed in favour of Mrs Scott by reason of the absence of any supposed 'legal constraints when a psychiatric examination of an involuntary patient is involved'; moreover even if that was not the case, any remedy open to the appellants was confined to that of administrative review, and did not extend to compensation by way of damages;
(iii) similarly no consequences of any relevance or significance in law, including any entitlement to damages in particular, flowed or accrued in favour of the appellants from the alleged 'prejudgment and exclusion of [Mrs Scott's] 20% physical impairment by [Ms Williams and Ms Chrystal] in 1995'; in any event, as has been earlier recorded, it is not irrelevant that Mrs Scott ultimately received a grant of the special benefit retroactively from 3 July 1995, and thereafter a grant of the DSP retroactively from 14 November 1996 (following upon her unsuccessful undertaking recourse to administrative review by the SSAT and subsequently by the AAT), Mrs Scott having received a special benefit in the meantime (see [25] - [28] above); the primary judge held of course, for reasons I have earlier recorded, that no cause of action was open in principle to the appellants for damages arising out of any breach of statutory duty;
(iv) whilst the primary judge did not make any finding that any of the respondents intended 'not to recognise 20% physical impairment of [Mrs Scott] in 1995 and at all', as the appellants had sought, the primary judge did make findings, which were open on the evidence, as to the absence of any improper motivation, intention or purpose on the part of each of the respondents; moreover the primary judge found as a factual matter, in the light of all the evidence before him, that none of the respondents acted in any high-handed fashion, or otherwise than out of the best of motives, in an attempt to assist Mrs Scott to establish an entitlement to be paid either the DSP or a special benefit, and that if any one or more of the respondents did err, it could only have been in some technical way which did not merit the attraction of an award of compensation to Mr and Mrs Scott, nor any condemnation of the respondents (see again [81] above); and
(v) as to Mr Scott alone, the assertion of the appellants the subject of the fifth alleged 'main error' of the primary judge, namely that the primary judge wrongfully determined there was no duty under s 1239 of the Act owed by any of the respondents to Mr Scott, the same was also fundamentally misconceived; whatever duty arose in relation to the Secretary's authority to review under the auspices of that section, no remedy for damages arose in favour of Mr Scott for any such breach of statutory duty, any possible remedy being confined to administrative review and thus only to administrative relief.
97 The appellants' written submissions sought to raise some eighteen principal contentions, in elaboration of the summary of the so-called 'main errors' already set out in [89] above. Those eighteen principal contentions appear in abbreviated form in [90] above. It is I think correct to say that the appellants' subsequent oral submissions, presented by Mrs Scott on behalf of both of them at the hearing of the appeal, did not extend significantly beyond the substance or essence of their written submissions. Those further eighteen contentions may be addressed relatively briefly. Each involved misconceptions as to the nature and limits of the causes of action pursued by Mr and Mrs Scott below, which the primary judge addressed principally by reference to established authorities, and otherwise to the extent which has been thus far recorded in these reasons.
98 Six of the appellants' heads of submissions outlined in [90] above (numbered 1, 2, 3, 6, 7 and 9) assert an absence of power in the respondents to have taken certain courses of action; and another (numbered 4) relates to reckless indifference to the existence of power, another (numbered 5) to a manifestly unreasonable requirement, and another three (numbered 8, 10 and 11) to lack of honesty on the part of Ms Williams and Ms Chrystal in the course of performance of their respective functions as offices of DSS. Each of the remaining seven heads of submissions address discrete matters, the last (numbered 18) seeking an order for costs consequential upon the appellants succeeding on the appeal. These heads of submissions are addressed below, without the necessity to explicitly record any purported particularity thereto provided by the appellants thereunder.
99 As has been earlier foreshadowed, the asserted absences of power of the respective respondents are answered by the generality of the administrative functions of decision-making conferred upon the Secretary of the DSS, in relation to the DSP, principally by Part 2.3 of the Act, and in relation to the special benefit, principally by Part 2.15 of the Act. By s 1295 of the Act, the Secretary has 'the general administration of the Act', subject to any direction of the Minister, and by s 1299 of the Act, the Secretary may by signed instrument delegate to an officer all or any of the Secretary's powers under the Act (subject to exceptions not here material). Section 1304 confers upon the Secretary, and thus upon the Secretary's delegate, a general power to obtain information. It is readily apparent that each of the respondents were delegates of the Secretary, and the contrary was not suggested. Part 6.1 confers upon the Secretary power and authority to conduct internal reviews of the decisions of officers under the Act, and subject to certain exceptions, the SSAT is empowered by Part 6.2 of the Act to review the decisions of the Secretary or of an authorised review officer, and Part 6.4 of the Act empowers the AAT to review decisions of the SSAT.
100 The outline of the Act has already been partly discussed in these reasons, in the context of my consideration of the reasons for judgment the subject of the earlier Scott decision of this Court, and of my references to the reasons for judgment below. Those references have been reproduced in detail and need not be repeated. The lengthy submissions of Mr and Mrs Scott fail fundamentally to address, much less to come to issue, with the reasons for judgment below of the primary judge. The appellants' purported citation and application of legal authorities as to principles governing statutory interpretation, and decisions by administrative officers and entities, is misconceived or misapplied, and understandably so, given their absence of legal qualification, particularly in the field of administrative law. The appellants' pursuit of legal proceedings to date, first against the Secretary of the DSS, and subsequently against the present respondents, doubtless springs from resentment, if not hostility, on their part with what they have portrayed as grave bureaucratic mistreatment claimed to have effectively reduced them, for a protracted period of time, to reliance financially upon Mr Scott's social security benefits for the time being paid by the DSS, and thus, to repeat Mrs Scott's assertion, to conditions virtually of 'starvation'. Hence the appellants' claim that they have sustained general damages in the nature of physical privation and mental anguish during that period of time. As I have earlier emphasised, they have not sought administrative review in the strict or traditional sense.
101 The authorities which have been cited in these reasons reveal a confined or restricted availability of any viable causes of action for damages at the instance of persons claiming to have been injured by the exercise of administrative power. So much has been exemplified by the High Court decisions in Crimmins, Sullivan, Graham Bailey Oysters and Shaddock, and by the majority judgment of the Full Federal Court in the earlier Scott litigation. The circumstances of the appellants which I have outlined and reviewed stand outside the principles cited earlier from those authorities. The largely discursive nature of the appellants' submissions evinces significant misconception on their part of the restricted parameters governing appeals to a Full Court concerning in particular the decisions or other conduct of the officers of administrative authorities, being the parameters identified earlier in Hamsher, Cabal, and Sydney Wide Distributors, which are not attracted by the complaints and submissions the appellants have sought to advance.
102 Before returning to the implications of the material findings of fact made by the primary judge below, it is appropriate to refer again to the four grounds of appeal extracted in [83] above. The same are firstly directed to causes of action for breach of common law duties of care in the performance of statutory duties, functions and powers, and secondly to repetition of the first ground of appeal (except that reference to common law is not made). Breach of statutory duty per se, without more, is not actionable in damages, at least where the statute stipulates an administrative avenue of review at least implicitly in exclusive terms. In relation to disappointed or rejected appellants for social security benefits, the statutory remedy provided is for review by the SSAT, and subsequently by the AAT. Thereafter follows reference in the grounds of appeal to 'causes of action involving negligent and intentional infliction of harm except cause [sic] breach of statutory duty'. In so far as reference is thereby made to 'causes of action involving… intentional infliction of harm', Mr and Mrs Scott are adversely confronted with the adverse implications of the decisions of the High Court in Mengel and Sanders. Accordingly it is at least very difficult, if not impossible, to comprehend what legal significance is supposedly attributable by the appellants to, or is submitted by them to flow from, the so-called '5 main errors' extracted in [89] above.