FEDERAL COURT OF AUSTRALIA Kirkup v Commonwealth of Australia [2001] FCA 1243 TORTS – breach of statutory duty – where duty imposed by Australian Postal Corporation Act 1989 (Cth) s 26 – whether breach of Australian Postal Corporation Act 1989 (Cth) s 26 sounds in damages. Australian Postal Corporation 1989 (Cth) ss 3, 12, 13(c), 14-16, 25, 26 Social Security Act 1991 (Cth) s 1296 Federal Court Rules O 4 r 3(1), O 4 r 6(1), O 4 r 6(2), O 20 r 2(1)(a) Byrne v Australian Airlines Ltd (1995) 185 CLR 410 followed Scott v Secretary, Department of Social Security (1999) 57 ALD 627 followed X (Minors) v Bedfordshire County Council [1995] 2 AC 633 followed Shiel v Secretary, Department of Social Security (1999) 56 ALD 465 referred to Scott v Secretary, Department of Social Security [2001] FCA 1241 referred to JL Holdings Pty Ltd v Queensland (1998) 85 FCR 1 referred to Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170 referred to Cubillo v Cth (No 2) (2000) 103 FCR 1 referred to Cubillo v Cth [2001] FCA 1213 referred to Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 referred to Trindade et al Law of Torts in Australia 3rd ed 1999 ROBERT KIRKUP v COMMONWEALTH OF AUSTRALIA N 877 of 2001 KATZ J SYDNEY 4 SEPTEMBER 2001 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 877 of 2001 BETWEEN: ROBERT KIRKUP APPLICANT AND: COMMONWEALTH OF AUSTRALIA RESPONDENT JUDGE: KATZ J DATE OF ORDER: 4 SEPTEMBER 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1 The application be dismissed. 2 The applicant pay the respondent's costs of the proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 877 of 2001 BETWEEN: ROBERT KIRKUP APPLICANT AND: COMMONWEALTH OF AUSTRALIA RESPONDENT JUDGE: KATZ J DATE: 7 SEPTEMBER 2001 PLACE: SYDNEY REASONS FOR JUDGMENT 1 There is pending in the Court a proceeding commenced by Mr Robert Kirkup. In his application commencing the proceeding, Mr Kirkup named as the respondent the Commonwealth of Australia. 2 As he was entitled to do, Mr Kirkup filed, with the application commencing the proceeding, a supporting affidavit, rather than a statement of claim: see O 4, subr 6(1) of the Federal Court Rules (Cth) ("the Rules"). 3 Order 4, subr 3(1) of the Rules provides that an application must specify the relief claimed by the applicant and, if the relief depends on a provision of an Act, the Act and the provision. 4 Order 4, subr 6(2) of the Rules provides that an affidavit filed with an application shall show the nature of the applicant's claim and the material facts on which it is based. 5 In accordance with O 4, subr 3(1) of the Rules, the relief claimed by Mr Kirkup in his application was specified as "[c]ompensation in the sum of $500 [b]illion". 6 Also in accordance with O 4, subr 3(1) of the Rules, the Act and the provisions thereof on which depended the relief claimed in Mr Kirkup's application were specified as follows: "Under Australian Postal Corporation Act. 1989 Section 25 - A B & C, 26". 7 Sections 25 and 26 of the Australian Postal Corporation Act 1989 (Cth) ("the Act") provide as follows: "Obligations generally 25 Australia Post has the following obligations: (a) its commercial obligation under section 26; (b) its community service obligations under section 27; (c) its general governmental obligations under section 28. Commercial obligation 26 Australia Post shall, as far as practicable, perform its functions in a manner consistent with sound commercial practice." (The reference in ss 25 and 26 of the Act to "Australia Post" was a reference to the Australian Postal Corporation, which corporation was continued in existence by s 12 of the Act: see s 3 of the Act.) 8 Given that s 26 of the Act merely refers, without elaboration, to the "functions" of Australia Post, that provision requires one to look to other provisions of the Act in order to determine what those functions are. Those other provisions are ss 14 to 16. They provide as follows: "Functions—the principal function 14 The principal function of Australia Post is to supply postal services within Australia and between Australia and places outside Australia. Functions—subsidiary function 15 A subsidiary function of Australia Post is to carry on, outside Australia, any business or activity relating to postal services. Functions—incidental businesses and activities 16(1) The functions of Australia Post include the carrying on, within or outside Australia, of any business or activity that is incidental to: (a) the supplying of postal services under section 14; or (b) the carrying on of any business or activity under section 15. (2) Without limiting subsection (1), the functions of Australia Post include the carrying on, within or outside Australia, of any business or activity that is capable of being conveniently carried on: (a) by the use of resources that are not immediately required in carrying out Australia Post's principal or subsidiary function; or (b) in the course of: (i) supplying postal services under section 14; or (ii) carrying on any business or activity under section 15." 9 I turn now to the affidavit filed by Mr Kirkup in support of his application. 10 In accordance with O 4, subr 6(2) of the Rules, in his supporting affidavit, Mr Kirkup deposed as follows: "I am the person posting 3 letters, not delivered, entitled to compensation, require general manager Australia Post to sign of non delivery Reserve Bank, New Zealand - claim $300 billion Westpac & international banks - claim $100 billion Sovereign Society - claim $100 billion This claim is against the federal government, owner of Australia Post." 11 (I note, incidentally, that, in his supporting affidavit, Mr Kirkup stated, "All claims subject to negotiation".) 12 There is before me presently a motion by the Commonwealth for summary dismissal of the proceeding on the ground that no reasonable cause of action is disclosed therein: see O 20, par 2(1)(a) of the Rules. 13 Given the form taken by s 25 of the Act, it is apparent that fundamental to Mr Kirkup's claim in his proceeding must effectively be the proposition that breach by Australia Post of the obligation imposed on it by s 26 of the Act sounds in damages at the instance of a person who has been harmed by such breach. 14 Of course, Mr Kirkup has not, in his proceeding, sued Australia Post itself, as he might have done: see par 13(c) of the Act. However, if s 26 of the Act does not have, as against Australia Post itself, the effect to which I have just referred, then the question whether the Commonwealth can be liable in respect of Australia Post's breach of s 26 of the Act does not arise. 15 I am satisfied that it is not reasonably arguable that a breach by Australia Post of the obligation imposed on it by s 26 of the Act sounds in damages at the instance of a person who has been harmed by that breach. 16 In Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 424, a majority of the court (Brennan CJ and Dawson and Toohey JJ) said (footnotes omitted), "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 proper 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 question is one of the construction of the statute, although as Dixon J pointed out in O'Connor v SP Bray Ltd, an examination of the statute 'will rarely yield a necessary implication positively giving a civil remedy'." (I note also that, in their joint reasons for judgment in Byrne concurring in the result, McHugh and Gummow JJ in substance expressed the view (see at 458) that statutes enacted by the Commonwealth Parliament would, even more rarely than statutes enacted by other legislatures, "yield a necessary implication positively giving a civil remedy".) 17 In decisions of this Court subsequent to Byrne, the result of the application to particular statutory provisions imposing duties on governmental officials or bodies of the approach which had been taken in the passage which I have just quoted has been that the relevant provision has been construed as not giving rise to a cause of action for damages for its breach. 18 For instance, in Scott v Secretary, Department of Social Security (1999) 57 ALD 627, Heerey J was concerned with s 1296 of the Social Security Act 1991 (Cth). That section provided: "1296 Principles of administration In administering this Act, the Secretary is to have regard to: (a) the desirability of achieving the following results: (i) the ready availability to members of the public of advice and information services relating to income support; (ii) the ready availability of publications containing clear statements about income support entitlements and procedural requirements; (iii) the delivery of services under the Act in a fair, courteous, prompt and cost-efficient manner; (iv) a process of monitoring and evaluating delivery of programs with an emphasis on the impact of programs on social security recipients; (v) the establishment of procedures to ensure that abuses of the social security system are minimised; and (b) the special needs of disadvantaged groups in the community; and (c) the need to be responsive to Aboriginality and to cultural and linguistic diversity; and (d) the importance of the systems of review of decisions under the Act; and (e) the need to apply government policy, in accordance with the law and with due regard to relevant decisions of the Administrative Appeals Tribunal and the Social Security Appeals Tribunal." 19 In holding that a breach by the Secretary of s 1296 of the Social Security Act would not sound in damages (see at 636, [47]), Heerey J relied on the passage from Bryne which I have quoted above. His Honour also relied (see at 636-37, [48]) on the following passage from the reasons for judgment of the House of Lords (Lord Browne-Wilkinson, the other members of the court agreeing) in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 731-32: "The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private law cause of action. However a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty … Although the question is one of statutory construction and therefore each case turns on the provisions in the relevant statute, it is significant that your Lordships were not referred to any case where it had been held that statutory provisions establishing a regulatory system or a scheme of social welfare for the benefit of the public at large had been held to give rise to a private right of action for damages for breach of statutory duty. Although regulatory or welfare legislation affecting a particular area of activity does in fact provide protection to those individuals particularly affected by that activity, the legislation is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general. Thus legislation regulating the conduct of betting or prisons did not give rise to a statutory right of action vested in those adversely affected by the breach of the statutory provision, i.e. bookmakers and prisoners: see Cutler's case[1949] AC 398; Reg v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58. The cases where a private right of action for breach of statutory duty ha[s] been held to arise are all cases in which the statutory duty has been very limited and specific as opposed to general administrative functions imposed on public bodies and involving the exercise of administrative discretions." 20 (I note, incidentally, that, in Shiel v Secretary, Department of Social Security (1999) 56 ALD 465, decided three months before Heerey J's decision in Scott, I had reached the conclusion, although not in the context of a claim for damages for breach of statutory duty, that subpars 1296(a)(i) and (iii) of the Social Security Act did not impose a duty on the Secretary which was owedto individual members of the public.) 21 Heerey J's decision in Scott was afterwards affirmed by a Full Court of this Court (Beaumont, French and Finkelstein JJ) in Scott v Secretary, Department of Social Security [2000] FCA 1241 (7 September 2000, unreported). In their joint reasons for judgment, Beaumont and French JJ (see at [17]-[19]) approved Heerey J's reasoning and his conclusion regarding s 1296 of the Social Security Act. 22 To similar effect to Scott were the decisions of Kiefel J in JL Holdings Pty Ltd v Queensland (1998) 85 FCR 1 at 61, Heerey J in Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170 at 206-08 and O'Loughlin J in Cubillo v Commonwealth (No 2) (2000) 103 FCR 1 at 363-68, [1175]-[1193]. (An appeal to a Full Court of this Court from O'Loughlin J's decision in the last case was dismissed, although the appellants did not challenge on appeal O'Loughlin J's conclusions regarding their claims for breach of statutory duty: see Cubillo v Commonwealth of Australia [2001] FCA 1213 (Sackville, Weinberg and Hely JJ, 31 August 2001, unreported) at [191].) 23 (For the sake of completeness, I should perhaps mention yet one more decision of this Court, given, however, before Byrne, in which an argument that breach of a particular statutory duty sounded in damages was rejected. The decision was one by a Full Court, Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 at 101-02 (Davies, Kelly and Neaves JJ).) 24 In my view, s 26 of the Act could not sensibly be described as imposing an obligation"for the protection or benefit of a particular class of persons" or "for the protection of a limited class of the public", to quote from Byrne and X respectively; nor could s 26 sensibly be described as having been designed to afford protection against that kind of injury or damage of which Mr Kirkup has complained in his proceeding, as Byrne requires to be the case before breach of it could sound in damages. Instead, it is plainly to be treated as a provision passed for the benefit of society in general, to use the language used in X. Also using the language used in X, the duty imposed by s 26 of the Act could not be said to be "very limited and specific"; rather, it is a "general administrative function[ ] imposed on [a] public bod[y] and involving the exercise of [an] administrative discretion[ ]". Or, to use different language expressing the same idea, s 26 of the Act may be said to impose merely a "target duty": see Trindade and Cane, Law of Torts in Australia (3rd ed.), 684-85, which passage contains a lengthy catalogue of cases in which statutory duties resting on public authorities have been held not to be actionable by private individuals, only one of those cases, namely, X, being a case to which I have referred above. 25 In the result, I will summarily dismiss, with costs, Mr Kirkup's proceeding. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz. Associate: Dated: 4 September 2001 The Applicant appeared in person. Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 4 September 2001 Date of Judgment: 4 September 2001