JUDGMENT No. on 22.4 I. CATCHWORDS Practice and Procedure - application to strike out amended statement of claim - no cause of action disclosed - abuse of process. Australian Federal Police Act 1979 Section 8 Department of Social Secunty v, Garvey (1990) 22 FCR 132 RECEIVED -2 NOV 1994 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTRY No. QG 83 of 1994 Cooper J., Brisbane, 28 October, 1994 QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No, OG 83 of 1994 BETWEEN: ROBERT JOSEPH BARRY GARVEY Applicant AND: AUSTRALIAN FEDERAL POLICE Respondent JUDGE MAKING ORDER: Cooper J. WHERE MADE: Brisbane DATE OF ORDER: 28 October, 1994 MINUTES OF ORDER THE COURT ORDERS THAT: I. The amended statement of claim filed on 9 August, 1994 be struck out. 2. Application number G83 of 1994 and all proceedings in the said application be permanently stayed. Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules. QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No, OG 83 of 1994 BETWEEN: ROBERT JOSEPH BARRY GARVEY Applicant AND: AUSTRALIAN FEDERAL POLICE Respondent CORAM: Cooper J. PLACE: Brisbane DATE: 28 October, 1994 REASONS FOR JUDGMENT On 30 June, 1994 the applicant, Robert Joseph Barry Garvey, imtated proceedings in this court against the Australian Federal Police ("the AFP"). That application, beyond asserting that the AFP acted illegally in refusing to investigate a complaint made by Mr. Garvey to the AFP in a letter dated 2 June, 1994, did not seek any relief. On 1 July, 1994 Mr. Garvey filed a statement of claim which, although it bore the heading "Statement of Claim", merely replicated the front page of the application with attachments filed on 30 June, 1994. On 20 July, 1994 the respondent filed a notice of motion seeking orders :- "l. That the Application and the Statement of Claim filed on I July 1994 be struck out; 2. That the Applicant ROBERT JOSEPH BARRY GARVEY pay the costs of the Respondent, with respect to the action including this Application to be taxed; 2. 3. Such further or other Order as the Court deems meet." On 9 August, 1994 the applicant filed an amended statement of claim. The amended statement of claim provided as follows :- "l. On the 2nd June 1994 the applicant requested the respondent (Australian Federal Police) to investigate fraudulent activities of Government Departments. (Copy of request marked Exhibit A). 2. On the 22nd June 1994 Australian Federal Police refused to investigate the allegations. (Copy of refusal marked Exhibit B). 3. Therefore the Australian Federal Police acted ullegallty. 4. In the Australian Federal Police Act 1979 at Section 8 it says inter alia the AFP functions are defined as provision of Police Services in relation to laws of the Commonwealth. 5. The AFP have failed to Police the Social Security Act a law of the Commonwealth. 6. I ask the Court to order the AFP to Police the Social Security Act especially misrepresentations of the Act by the department. 7. To make any other orders the Court thinks fit." Exhibit "A" was a letter dated 2 June, 1994 which said :- "I enclose herewith a copy of a letter to Her Majesty, documentating [sic] fraudalent [sic] activities of the Social Security Department. The fraudalent [sic] activity has been aided and abetted by the lack of an effectively administered system of legal aid. (The political responsibility of the Altorney-General.) The activities of the Social Secunty Dept are a criminal matter and need to be investigated by the Police and charges 3. laid and tried in the appropriate Criminal Court. Would you kindly investigate these allegations. If you chose [sic] not to do so would you kindly advise of such decision." The letter to Her Majesty referred to 1n the first paragraph of the letter to the AFP was dated 29 April, 1994 and so far as is relevant says :- "I pray that you will consider the following : The Australian Social Security Department, (in ignorance probably), defrauds the weak, the frail, and the aged, when it applies rule 5.2330 (now 27/8530) in the assessments of people's income for the means test for pension benefits. The Secretary to the Minister perfidously [sic] advises people, that 'gross income' is the relevant measure yet the Act quite clearly specifies 'nett income'. The Judiciary has failed to halt this abuse of power. (vide Social Security Dept. v Garvey ALR 19.) The Department, publicly displayed incompetance [sic] with the income test in Amelia Irene Harris v Dept of Social Security according to the High Court. The relevant learned bodies (Accountancy Profession) have also failed their charter by not exposing this wickedness. The essence, of the cause of these gross flaws in the administration of Your laws, is to be found, in the lack of effectively administered Legal Aid. The skewing of investment decisions in Australia towards financial intermediaries means that our economy is seriously disadvantaged by the treacherous administration of the Social Security Act. I truly belief Your Majesty, that should you decide to move boldly to rebuke your servants for these failings, all your subjects in Australia will forever be grateful." By letter dated 22 June, 1994 the AFP replied to the applicant as follows :- "I refer to your letter dated 2 June 1994 in which you request the Australian Federal Police to investigate the 4. administrative procedures and policies of the Department of Social Secunty. The charter of the AFP is to investigate and present for Prosecution instances of fraudulent activity and official corruption against the Commonwealth. Your referral is not within the charter of the AFP and therefore will not be investigated." The respondent contends that it is entitled to the relief claimed 1n the notice of motion on two bases :- @ That no reasonable cause of action is disclosed and that the proceedings are frivolous or vexatious; (ii) That no recoverable cause of action 1s disclosed and the proceedings have a tendency to embarrass. Counsel on behalf of the respondent submitted that the courts will not interfere with the exercise of police discretion in the investigation of suspected offences in other than extreme cases, In this regard he referred to R. v. Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 QB 118 at 136, 139, 148; Ry Commissioner of Police of the Metropolis, Ex parte Blackburn (No, 3) [1973] 1 QB 241 at 254, 258-9 amongst other cases. He further submitted that in the letters the applicant forwarded to the AFP he did not identify any criminal activity, the commission of any criminal offences, or the identity of any criminals. In those circumstances there is no basis of a case for the court to intervene in the exercise of the discretion not to investigate, it was submitted. 5. The difficulty with the submission of the respondent 1s that the applicant's case is that there was no exercise of the discretion at all because the AFP misunderstood its function. The statement in the letter of 22 June, 1994 :- "The charter of the AFP is to investigate and present for prosecution instances of fraudulent activity and official corruption ggainst the Commonwealth. Your referral is not within the charter of the AFP and therefore will not be investigated." (Emphasis added by the AFP) Shows that the refusal was based on a belief that the referral was outside the charter of the AFP, not because of the exercise of a independent discretion not to investigate. The applicant's statement of claim makes tolerably clear in paragraph 4 that he contends the functions of the AFP as set out in section 8 of the Australian Federal Police Act 1979 are sufficiently wide to encompass the complaint of the applicant, and the AFP has erroneously failed to consider his complaint as contained in the fetter to the AFP with the accompanying attachment. Section 8 of the Australian Federal Police Act provides, so far as is presently relevant :- "8(1) Subject to subsection (2C), the functions of the Australian Federal Police are: (a) (aa) (b) the provision of police services in relation to: (i) laws of the Commonwealth; (ti) property of the Commonwealth (including Commonwealth places) and property of authorities of the Commonwealth; and 6. (ui) the safeguarding of Commonwealth interests; and (ba) (c) to do anything incidental or conducive to the performance of the foregoing functions." Subsection (2C) is not relevant to the present application. It cannot be said that it 1s beyond any argument that it 1s outside the proper functions of the AFP to investigate criminal conduct by the Commonwealth, a Department of State, or a public servant in the administration of the laws of the Commonwealth and I did not understand counsel for the respondent to contend otherwise. My recollection 1s that he described the response from the AFP as "unfortunate". If it were the case that the applicant sought no more than that the Tespondent exercise an independent discretion as to whether it would investigate his complaint, I would dismiss the notice of motion and encourage the parties to resolve the matter without further litigation. However, the effect of paragraphs 5 and 6 of the amended statement of claim and the complaints contained in the letters annexed to the amended statement of claim 1s that the applicant seeks an order that the AFP act in relation to particular conduct of the Department of Social Security. That conduct is identified in the letter to Her Majesty, where it states :- "The Australian Social Security Department, (in ignorance probably), defrauds the weak, the frail, and the aged, when it applies rule 5.2330 (now 27/8530) in the assessments of people's income for the means test for pension benefits. The Secretary to the Minister perfidously [sic] advises people, that 'gross income' is the relevant measure yet the Act quite 7. clearly specifies 'nett income'. Mr. Garvey has previously litigated this issue and lost. The interpretation he contends for was found against him. The decision of a Full Court of this court 1s reported in Department of Social Secunty v. Garvey (1990) 22 FCR 132. The applicant says that the issues which he raises are different. However, in his letter to Her Majesty one of the matters of complaint 1s that the judiciary has failed to stop the specified conduct of the Department and reference 1s made to his case in this court. The consequence of the applicant's previous litigation in this court 1s that he must fail in his allegation that the AFP 1s failing to investigate, and act against, illegal conduct in the administranon of Commonwealth Social Security legislation by the Department. That conduct, advising people that gross income 1s the relevant measure for the means test for pension benefits, 1s the only conduct on the part of the Department identified in the material provided to the AFP. The allegation that that conduct is illegal is an essential allegation in the cause of action contended for by the applicant. An allegation that the AFP has acted illegally in that 1t failed to investigate and proceed against conduct which 1s in conformity with the judgment of a Full Court of this court 1s bound to fail. There is nothing in the conduct of the AFP in fatling to investigate and proceed against the Department on the basis of the conduct complained of in the applicant's letter of 2 June, 1994 and the enclosure to it which would entitle the applicant to the relief claimed in paragraph 6 of the amended statement of clam. The amended statement of claim as pleaded discloses no cause of action. In my view no cause of action can be pleaded by way of amendment to raise the real issue that the applicant wishes to litigate and to lead to the relief which he seeks. It 1s therefore not appropriate merely to strike out the amended statement of claim. The continued maintenance of proceedings which cannot lead to the pursuit of a cause of action arising out of the facts giving mse to the present proceedings which has any prospect of success would be an abuse of process. The proper exercise of discretion requires that the amended statement of claim be struck out and that the proceedings permanently stayed. 1 will hear the parties on costs. THE COURT ORDERS THAT: 1, The amended statement of claim filed on 9 August, 1994 be struck out. 2. Application number G83 of 1994 and all proceedings in the said application be permanently stayed. I certify that this and the preceding seven (7) pages are a true copy of the reasons for judgment herein of his Honour Justice Cooper. Date: 28 October, 1994 My wid : Applicant in Person: Mr. R.J.B. Garvey Counsel for the Respondent: Mr. D.O.J. North Solicitors for the Respondent: Australian Government Solicitor Date of Hearing: 23 August, 1994 Place of Hearing: Brisbane Date of Judgment: 28 October, 1994 MEMORANDUM TO: Judgments Clerk Federal Court of Australia Principal Registry SYDNEY. FROM: Susan Payne Secretary to Cooper J. BRISBANE. DATE: 1 November, 1994 RE: 1, Garvey, Robert Joseph Barry v. Australian Federal Police No. QG83 of 1994 2. Ford, Paul y. Secretary to the Department of Social Securit No. QG96 of 1994 3. Langworth Pty, Ltd. and Lindsay James Thompson _v, Metway Bank No. QG114 of 1992 Please find enclosed herewith hard copy of the above judgments, together with a disk containing a copies of same. Garvey and Ford were delivered in Brisbane on 28 October, 1994. Langworth was delivered on in Brisbane 31 October, 1994, pd / ; Susan Payne Secretary