FEDERAL COURT OF AUSTRALIA Coffey v Centrelink [2004] FCAFC 233 PETER MICHAEL COFFEY v CENTRELINK and THE AUSTRALIAN GOVERNMENT SOLICITOR No S 41 of 2004 RYAN, JACOBSON & LANDER JJ ADELAIDE 16 AUGUST 2004 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No S 41 of 2004 On appeal from a single judge of the Federal Court of Australia BETWEEN: PETER MICHAEL COFFEY Appellant AND: CENTRELINK and THE AUSTRALIAN GOVERNMENT SOLICITOR Respondents JUDGES: RYAN, JACOBSON & LANDER JJ DATE OF ORDER: 16 AUGUST 2004 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondents' costs in the proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY No S 41 of 2004 BETWEEN: PETER MICHAEL COFFEY Appellant AND: CENTRELINK and THE AUSTRALIAN GOVERNMENT SOLICITOR Respondents JUDGES: RYAN, JACOBSON & LANDER JJ DATE OF ORDER: 16 AUGUST 2004 WHERE MADE: ADELAIDE REASONS FOR JUDGMENT 1 This is an appeal from a judgment of Mansfield J summarily dismissing, under order 20 rule 1 of the Federal Court Rules ("the rules"), the substantive application in these proceedings ("the 2003 action"). The 2003 action was an application to reinstate matter number SG6 of 1998 ("the 1998 action"), which was itself dismissed summarily by Mansfield J on 25 September 1998. 2 An appeal against his Honour's judgment in the 1998 action was dismissed by a Full Court (von Doussa, Branson and Sundberg JJ) on 7 April 1999. Special leave to appeal was refused by the High Court on 24 March 2000. Kirby and Callinan JJ were of the opinion that the decision of the Full Court was not attended with sufficient doubt to warrant the grant of special leave. 3 The respondent in the 1998 action was the Secretary, Department of Social Security ("the Department"), but in the 2003 action the named respondents are Centrelink and the Australian Government Solicitor. No separate relief was sought against the Australian Government Solicitor and accordingly, his Honour considered that the claim against it should be dismissed. 4 His Honour observed that the proposed change of the respondent from the Department named in the 1998 action was a substantial obstacle to success on the application. Nevertheless, he considered the 2003 action upon the assumption that the correct respondent was named as a party to those proceedings. 5 The application in the 2003 action also sought an extension of time to add the Director of Public Prosecutions as a respondent, and an extension of time to add causes of action for defamation, breach of privacy, negligence, conspiracy, abuse of process and restraint of trade. The application in the 2003 action also sought, by way of interlocutory relief, an order expunging the appellant's police record, which apparently records 32 convictions for fraud against him. 6 The claim in the 1998 action arose out of the receipt by the appellant of unemployment benefits under the Social Security Act 1991 (Cth) ("the Act"). The appellant was doing some casual work at the time when he received the benefits, but he disclosed this to the Department. Nevertheless, following a review, the Department claimed a refund of $3,245 and withheld benefits from him to recoup the debt. 7 In the 1998 action the appellant sought to raise three causes of action. The first was a debt claim for recovery of the amount of $3,245 withheld from him by the Department. The second was a claim for abuse of process. The factual matters relied upon to support this claim were that the appellant had been invited to an interview by the department to discuss the alleged overpayment, and that according to the appellant the purpose of the interview was to induce him to incriminate himself. 8 The third cause of action in the 1998 action was a claim for malicious prosecution. This arose from a summons issued out of the Adelaide Magistrates Court alleging 32 counts of fraud against the appellant. The Director of Public Prosecutions later withdrew the charges, stating that there was "woefully" insufficient evidence to support them. 9 In his judgment in the 1998 action Mansfield J came to the view that the court had no jurisdiction to hear any of the claims. Nevertheless he went on to consider whether, if the proceedings were reconstituted by the joinder of parties involved in the process of referral of the brief to the Director of Public Prosecutions, the claims of abuse of process and malicious prosecution had any prospects of success. 10 Mansfield J, after considering the relevant authorities, came to the view in his judgment in the 1998 action that the appellant had no prospect of success in the claims of abuse of process, malicious prosecution or misfeasance in public office. 11 The Full Court held that the Court did have jurisdiction to hear the debt claim, but found that the claim constituted an abuse of process. This was because the appellant had sought, unsuccessfully, to review the decision made by the Department that the debt of $3,245 was recoverable. Accordingly, the Full Court held that the debt claim was an attempt to litigate in the court a claim that had been resolved adversely to the appellant in other litigation. 12 The Full Court upheld Mansfield J's findings in the 1998 action, that the appellant had no prospect of success on the claims for abuse of process, malicious prosecution or misfeasance in public office. 13 In the Full Court, the appellant sought to adduce fresh evidence to endeavour to establish malice on the part of the officers who participated in the preparation of the brief to the Director of Public Prosecutions. Their Honours admitted the evidence in the exercise of their discretion, but stated that they would consider later in the judgment whether the evidence assisted the appellant. When considering the evidence, their Honours stated that they did not regard it as "even arguably" enabling the appellant to establish malice. 14 In his judgment in the 2003 action, his Honour was mindful that orders summarily disposing of proceedings should only be made where there is no substance to the claims, at [7]. 15 His Honour noted that the Court would have power, under order 35 rule 7 to reopen the 1998 action, but he referred to authorities which establish that the power should be exercised with great caution. He cited a passage from a decision of the High Court observing that the discretion is not to be exercised for the purpose of re-agitating arguments previously rejected or to reconsider factual or legal questions on which the Court's "misapprehension" was attributable to the default of the party seeking a rehearing. 16 Mansfield J considered the material that the appellant put before the court to reopen the 1998 action. However, his Honour was of the view, at [19], that the material amounted to no more than an attempt to reargue claims that had been rejected at first instance, and on appeal, in the 1998 action. His Honour stated that the various documents put before him by the appellant did not identify any new material not previously available to the appellant, at [19], did not provide new evidence which demonstrated that the findings of fact made in the 1998 action were erroneous, at [22], and in relation to new affidavits and submissions constituted an attempt to reargue the case, see at [23]. 17 His Honour said at [24] that the matters put before him, either individually or collectively: "…fall short of demonstrating such a misapprehension of facts or the law, or any other circumstance, that in the interests of justice requires such an order." 18 His Honour also dismissed, summarily, a motion by the appellant for summary judgment in the 1998 action. He considered that the claim in the amended application for summary judgment, including the claims for conspiracy and the other causes of action, had been determined in the 1998 action, albeit under different labels, at [26]. 19 Finally, his Honour, whilst expressing some sympathy for the appellant's claim to have his criminal record expunged, did not consider that the claim gave rise to a cause of action. 20 We have considered the written submissions filed by the appellant. In our view they do no more than recanvass issues of fact and law decided against the appellant at first instance, and on appeal, in the 1998 action. 21 His oral submissions this afternoon were to the same effect. 22 We can see no error in his Honour's reasons for judgment in the 2003 action. In our view, the appeal must be dismissed with costs. I certify that this and the preceding twenty-two (22) paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 20 August 2004 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr N Giannantonio Solicitors for the Respondent: Australian Government Solicitor Hearing Dates: 16 August 2004 Date of Judgment: 16 August 2004