Scott v Pedler [2002] FCA 164 (7 February 2002)

Last Updated: 1 March 2002

FEDERAL COURT OF AUSTRALIA

Scott v Pedler [2002] FCA 164

RALPH SCOTT AND SOPHIE SCOTT v OFFICER TONI LEE-ANNE PEDLER, DEPARTMENT OF SOCIAL SECURITY, OFFICER JULIE A WILLIAMS, DEPARTMENT OF SOCIAL SECURITY AND AUTHORISED REVIEW OFFICER, ROBERTA CHRYSTAL, DEPARTMENT OF SOCIAL SECURITY

V 652 of 2001

GRAY J

7 FEBRUARY 2002

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 652 of 2001

BETWEEN:	RALPH SCOTT FIRST APPLICANT SOPHIE SCOTT SECOND APPLICANT
AND:	OFFICER TONI LEE-ANNE PEDLER, DEPARTMENT OF SOCIAL SECURITY FIRST RESPONDENT OFFICER JULIE A WILLIAMS, DEPARTMENT OF SOCIAL SECURITY SECOND RESPONDENT AUTHORISED REVIEW OFFICER, ROBERTA CHRYSTAL, DEPARTMENT OF SOCIAL SECURITY THIRD RESPONDENT
JUDGE:	GRAY J
DATE OF ORDER:	7 FEBRUARY 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application for leave to amend the statement of claim by the addition of par 27.1 be dismissed.

2. The applicants have leave to amend their reply by the addition of par 32 in the following terms:

"They further say that:

(A) Officers of the DSS misrepresented to them of the existence of the assessment, made allegedly in accordance with s. 116 of the Act, of 0% physical impairment of the second applicant under the Impairment Tables;

(B) they relied on the above stated misrepresentation until the end of 1996;

(C) as the result of, inter alia, that reliance they were convinced that they could not appeal the 1993 DSP rejection without further medical evidence."

3. The applicants have leave to rely upon the joint affidavit of Ralph Scott and Sophie Scott sworn on 4 February 2002 and filed on 5 February 2002 and the exhibits thereto.

4. There be no order as to costs of the motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 652 of 2001

BETWEEN:	RALPH SCOTT FIRST APPLICANT SOPHIE SCOTT SECOND APPLICANT
AND:	OFFICER TONI LEE-ANNE PEDLER, DEPARTMENT OF SOCIAL SECURITY FIRST RESPONDENT OFFICER JULIE A WILLIAMS, DEPARTMENT OF SOCIAL SECURITY SECOND RESPONDENT AUTHORISED REVIEW OFFICER, ROBERTA CHRYSTAL, DEPARTMENT OF SOCIAL SECURITY THIRD RESPONDENT

JUDGE:	GRAY J
DATE:	7 FEBRUARY 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 Before me today is a notice of motion in which the applicants in this proceeding seek three things.

2 The first order sought is that the applicants have leave to amend the statement of claim by the addition of par 27.1 in the following terms:

"DSS officers removed damaging evidence of the wrongful decisions made in 1993."

3 In support of the application for this order, the second applicant, who has made submissions on behalf of both applicants, suggested that the purpose of the proposed amendment was to plead facts which were to be regarded as circumstantial evidence, bearing upon the state of mind of the respondents. The second applicant disavowed, in response to a question of mine, any intention to add an additional claim. For that reason it seems to me that the proposed amendment ought not to be allowed. It would amount to pleading evidence instead of pleading material facts. To the extent to which the applicants seek to place the respondents on notice that this allegation will be made as part of their evidence, they have succeeded in doing so by the second applicant's statements from the bar table today.

4 In addition, I am concerned that the allegation in the proposed par 27.1 is an allegation made against officers of the Department of Social Security generally and not against the respondents specifically. Despite the authorities to which the second applicant has referred, I am not convinced that an allegation in the terms in which it is made would not impermissibly broaden the matters that are the subject of the statement of claim.

5 The second application that the applicants make is to amend their reply by the addition of a paragraph numbered 32 in the following terms:

"They further say that:

(A) Officers of the DSS misrepresented to them of the existence of the

assessment, made allegedly in accordance with s. 116 of the Act of 0% physical impairment of the second applicant under the Impairment Tables;

(B) they relied on the above stated misrepresentation until the end of

1996;

(C) as the result of, inter alia, that reliance they:

i - were convinced that they could not appeal the 1993 DSP rejection without further medical evidence;

ii - sustained personal injury;

iii - sustained financial loss in the preparation of further medical evidence."

6 The second applicant submitted that the applicants desired to rely on these allegations by way of reply to a defence alleging contributory negligence on their part in failing to appeal at an appropriate time. To my mind it is legitimate that they be allowed to defend themselves against that allegation in this fashion, with the exception of the sub-subparagraphs numbered (ii) and (iii). Those have the appearance of adding an additional claim which the second applicant assures me is pleaded in any event in the statement of claim. It would be inappropriate in a reply that seeks to set up an issue in relation to contributory negligence. I therefore propose to give the applicants leave to amend their reply by the addition of the proposed par 32 without the last two sub-subparagraphs.

7 The third order sought in the notice of motion was an order that the applicants have leave to rely on a supplementary affidavit. It was made clear from the bar table that this is an affidavit jointly sworn by the two applicants on 4 February 2002 and filed on 5 February 2002, together with some five exhibits. Counsel for the respondents indicated that if I were to find in favour of the applicants in relation to the proposed amendment of their reply he would not be in a position to object to reliance upon this supplementary affidavit. I therefore propose to grant leave to the applicants to rely on that affidavit.

8 The orders that I make therefore are as follows:

1. The application for leave to amend the statement of claim by the addition of par 27.1 be dismissed.

2. The applicants have leave to amend their reply by the addition of par 32 in the following terms:

"They further say that:

(A) Officers of the DSS misrepresented to them of the existence of the assessment, made allegedly in accordance with s. 116 of the Act, of 0% physical impairment of the second applicant under the Impairment Tables;

(B) they relied on the above stated misrepresentation until the end of 1996;

(C) as the result of, inter alia, that reliance they were convinced that they could not appeal the 1993 DSP rejection without further medical evidence."

3. The applicants have leave to rely upon the joint affidavit of Ralph Scott and Sophie Scott sworn on 4 February 2002 and filed on 5 February 2002 and the exhibits thereto.

4. There be no order as to costs of the motion.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated: 28 February 2002

Counsel for the Applicant:	The applicants appeared in person
Counsel for the Respondent:	Mr P J Ginnane
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 February 2002
Date of Judgment:	7 February 2002