Croker v Department of Family & Community Services [2000] FCA 269 (2 March 2000)

Last Updated: 20 March 2000

FEDERAL COURT OF AUSTRALIA

Croker v Department of Family & Community Services

[2000] FCA 269

CLAYTON ROBERT CROKER v DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

N 845 OF 1999

SACKVILLE J

SYDNEY

2 MARCH 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 845 OF 1999

BETWEEN:	CLAYTON ROBERT CROKER APPLICANT
AND:	DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT

JUDGE:	SACKVILLE J
DATE:	2 MARCH 2000
PLACE:	SYDNEY

REASONS FOR DECISION

1 A motion has been filed on behalf of the respondent in this matter seeking an order pursuant to Federal Court Rules, ("FCR") O 20 r 2(1)(a) that the proceedings be dismissed. Alternatively, the respondent seeks an order pursuant to FCR, O 11 r 16(a) that the statement of claim be struck out as disclosing no reasonable cause of action.

The Pleading

2 The applicant is unrepresented. He has pleaded his case in a statement of claim filed on 29 October 1999. The statement of claim was filed and served in purported compliance with a direction made by the Court that the case proceed on pleadings.

3 It is not altogether easy to follow the statement of claim. What follows is my understanding of the case the applicant intends to plead.

4 The statement of claim pleads that on 25 June 1997, or thereabouts, the applicant applied to the Department of Social Security ("the Department") for an advance payment of a Disability Support Pension of $500. It is alleged that the advance payment was made on that date and was repaid between 10 July 1997 and 25 December 1997.

5 The applicant says that on or about 25 June 1997, he was "involved in a discussion" regarding his eligibility for further advance payments of disability support pension. He alleges that he was given information by the Department that he would be eligible for an advance payment on 26 December 1997, or at an earlier date if the first advance were repaid prior to 26 December 1997.

6 It is then alleged that, between 10 July 1997 and 25 December 1997, the applicant had fortnightly deductions of $38.50 taken out of his Disability Support Pension. Although it is unclear, the applicant presumably intends to allege that this was the means by which the advance payment was repaid. The applicant says that during this period he entered into "a number of financial engagements" including pledges on personal property and loans from an associate of about $100. Again, although the language of the statement of claim is extremely difficult to follow, the applicant appears to allege that he had assumed that he would receive a further advance payment on or about 26 December 1997.

7 The applicant alleges that on 26 December 1997 he applied for a further advance payment of Disability Support Pension. It is then said that he received a letter from the Department on or about 30 December 1997, stating that he had an outstanding debt of $38.50 in respect of the previous advance payment. The applicant appears to allege that the letter advised that the remaining $38.50 would have to be repaid before a further advance could be granted.

8 The applicant next claims that the amount of $38.50 was repaid by him, by way of deduction from the next instalment of Disability Support Pension paid to him "[t]herefor [sic] releasing the plaintiff [sic] from the advance payment".

9 The applicant alleges that he again applied for an advance payment on 2 January 1998. It is then alleged that he received a reply from the Department on the same date, stating that the legislation had changed and that he was no longer eligible to receive an advance payment.

10 The applicant says that these actions caused him "financial difficulties". He applied to the Social Security Appeals Tribunal, but his application was dismissed on the ground (so it is alleged) that the Tribunal had no jurisdiction. A subsequent application for review to the Administrative Appeals Tribunal is also said to have been unsuccessful.

11 The application claims that the following questions of law are raised by the application:

"(a) The does [sic] the DEPARTMENT OF FAMILY AND COMMUNITY SERVICES have jurisdiction to over see the Financial Management and Accountability Act 1997 Sec 9.

(b) Is the DEPARTMENT OF FAMILY AND COMMUNITY SERVICE liable for damages caused by a breach."

12 The orders sought in the application are as follows:

"1) The DEPARTMENT OF FAMILY AND COMMUNITY SERVICES pay the sum of $140,000.00 in damages.

2) The DEPARTMENT OF FAMILY AND COMMUNITY SERVICES pay damages in equity,

a) Explanatory [sic];

b) Pecuniary;

c) Interest;

d) Out of pocket expenses."

13 The statement of claim refers to the relief specified in the application and continues as follows:

"1. During the time in which the plaintiff [sic] applied for the advance payment on 26^th of December 1997, or thereabouts and to date the plaintiff has suffered a number of damages in that pecuniary damages had been affective [sic] with also loss of enjoyment of life and damages to the character and reputation of the plaintiff, and procrastination of studies.

2. The plaintiff also seek [sic] explanatory [sic] damages and costs associated with the four appeals that have been sought. In view of the offence [sic] committed by the Department of Social Security."

Legislation

14 Advance payments of social security entitlements are dealt with in s 1061A of the Social Security Act 1991 (Cth) ("Social Security Act"). At the material times, s 1061A, relevantly, provided as follows:

"1061A(1) Subject to subsection (4), a person is qualified for an advance payment of a social security entitlement only if:

(a) the social security entitlement is payable to the person; and

(b) the person has been receiving an income support payment for a continuous period of 3 months immediately before the day on which the person's application for the advance payment is made;

(c) ...; and

(d) the Secretary is satisfied that the person will not suffer financial hardship from reductions in instalments of the social security entitlement as a result of receiving the advance payment.

...

(4) A person is not qualified for an advance payment if:

(a) ...; or

(b) the person has received an advance payment, or an instalment of an advance payment, of a social security entitlement and has not fully repaid the advance payment; or

(c) the person has received the amount of an advance payment in a single lump sum, or has received the first instalment of such an amount, on or after 1 January 1997, and the period of 12 months from the day the lump sum or instalment was paid has not elapsed; or

(d) ...".

Reasoning

15 On the face of s 1061A of the Social Security Act, the applicant was not entitled to receive a second advance payment at any time prior to 25 June 1998.

16 It is not evident from the statement of claim how the applicant alleges that he is able to overcome this difficulty. He appears to allege that he was given inaccurate information by an officer of the Department of Social Security on or about 25 June 1997. However, the significance of this allegedly inaccurate information is not made clear in the pleading.

17 The statement of claim does not plead that the respondent is estopped from denying that a particular state of affairs exists. If, however, the applicant intends to plead that the respondent is estopped from denying that the applicant was entitled to an advance payment on 26 December 1997, he is likely to encounter an insuperable obstacle. To adapt the language of Davies and Gummow JJ in Formosa v Secretary, Department of Social Security (1988) 81 ALR 687, at 696, any advance payment to the applicant during a period when he was ineligible to receive the payment would conflict with the principle that estoppel does not operate to sanction the appropriation of public moneys without the authority of Parliament. See also Roberts v Repatriation Commission (1992) 111 ALR 436 (FC), at 441-442. The effect of the estoppel (if that is the case the applicant intends to make) would appear to be to dispense with the limitation imposed by s 1061A(4)(c) of the Social Security Act and extend the authority of the decision-maker beyond that given by statute.

18 If the applicant intends to plead a claim based in contract, the material facts necessary to support such a cause of action are not pleaded. Even if they were, the applicant would seem to encounter the same obstacles as he would in relation to a cause of action based on estoppel: see Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, at 210, per Gummow J.

19 If the applicant intends to plead a case under the Trade Practices Act 1974 (Cth), he has failed to plead the elements of a cause of action arising under that Act. Again, even if were intended to plead such a cause of action, the applicant would seem to face substantial difficulties. In particular, it is difficult to see how any alleged representation would have been made "in trade or commerce" as required by s 52 of the Trade Practices Act.

20 There are other deficiencies in the statement of claim. Insofar as the applicant claims damages, it is unclear how it is said that there is any causal relationship between the damages said to have been sustained and the breach of any duty allegedly owed to him. The pleading does not make clear what, if anything, the Financial Management and Accountability Act 1997 (Cth) (referred to in the application) has to do with the proceedings. Further, it is difficult to see how the Department can be the proper respondent to any claim for damages arising out of an alleged breach of duty (or some other default) of a departmental officer.

21 In my opinion, the statement of claim is clearly defective and should be struck out as disclosing no reasonable cause of action. Having regard to the form of the application, it too should be struck out.

22 The question then is whether the applicant should be given leave to replead or whether the proceedings should be brought to a halt by way of summary dismissal. On the basis of the material before me, I think it is very unlikely that the applicant will be able to plead a case that will withstand scrutiny. However, having regard to the finality of an order for the summary dismissal of the proceedings, I am disposed, albeit rather reluctantly, to give the applicant a further opportunity to replead his case. If he fails to do so adequately, it is unlikely that a further opportunity will be afforded to him. He is also at risk of an adverse costs order.

23 The application and statement of claim should be struck out. The applicant should have leave to file an amended application and an amended statement of claim within twenty-eight days. The respondent should file and serve any defence within a further twenty-eight days. However, should the respondent file a notice of motion for summary dismissal or for the striking out of the application or statement of claim within that twenty day period, there will be no need for it to file a defence. I shall re-list the matter for further directions on 9 June 2000. I note that the respondent does not seek costs against the applicant.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated: 17 March 2000

Applicant appeared in person
Counsel for the Respondent:	Mr G M Elliott
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 March 2000
Date of Judgment:	2 March 2000