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Precedent (Australian Lawyers Alliance) |
THE LIMITATIONS ON VETERANS’ RIGHTS TO SUE THE COMMONWEALTH
By Adjunct Professor Allan Anforth AM and Boston White
The Australian Veterans’ Recognition (Putting Veterans and Their Families First) Act 2019 (Cth) recognises the contribution of military services to the community, expresses a commitment to the support of service personnel, provides for The Australian Defence Veterans’ Covenant[1] and requires a beneficial interpretation of relevant compensation legislation. But this Act is entirely aspirational in its operation and does not actually confer any rights.[2] The rights of service personnel are found in the substantive compensation legislation addressed below. These pieces of legislation and their procedural remedies contain various barriers and pitfalls that legal practitioners need to be aware of, lest their well-intentioned activities result in difficulties and harm to their clients.
This article addresses four scenarios:
1. The barriers to injured service personnel suing the Commonwealth or other military personnel for injuries sustained during service.
2. The barriers to injured service personnel suing third parties for injuries suffered during military service due to the negligence of a third party.
3. The barriers to injured service personnel seeking redress under other compensation schemes.
4. The barriers to and limitations of judicial review of Commonwealth decisions as an appropriate remedy.
SCENARIO 1: SUING THE COMMONWEALTH OR OTHER MILITARY PERSONNEL FOR INJURIES SUSTAINED DURING SERVICE
The difficulties experienced by service personnel suing the Commonwealth in tort at common law emerge from the impediments raised by:
• the complexities of the common law;
• statutory amendments, arising from the Ipp Review,[3] to the civil law legislation of the various states and territories – in this article, this issue will be illustrated by referencing the Civil Law (Wrongs) Act 2002 (ACT); and
• the express statutory bars to bringing such proceedings in military compensation legislation.
Actions in tort
The three potentially relevant actions are:
1. misfeasance in public office;
2. breach of statutory duty; and
3. negligence.
In various ways and with multiple restrictions, these torts can apply to personal injuries arising from unsafe working conditions or economic loss arising from incorrect advice or defective administrative processes of the Commonwealth. There is no action in tort available for injuries suffered in actual conflicts or wars. Compensation for these injuries is restricted to the statutory compensation schemes addressed below.
In summary, the tort of misfeasance in public office requires:
• a public officer;
• who is engaged in an unauthorised act or omission in the purported discharge of their public duty;
• that was done deliberately or with reckless indifference to the limits of their power (commonly referred to as ‘maliciously’); and
• that caused the foreseeable loss or harm.[4]
The bar for success is high.[5] It is not sufficient that the action in question is grossly negligent or incompetent: evidence of malice is required.[6] Between 1951 and 2020, there were only nine successful misfeasance claims against any government in Australia.[7]
In summary, the tort of breach of statutory duty requires the following:
• the statute must have intended to create a private law action;
• there must be a duty as opposed to a mere power on the decision-maker in question;
• the plaintiff has to be within the class of person the statute intended to protect; and
• the damage suffered must be within the kind anticipated by the statute.[8]
Outside the scope of work health and safety laws, it is not common for courts to find an implied intention to create a private law right in a statute. There is nothing explicit in any of the military compensation scheme legislation that either creates or denies a private law action for injuries incurred during service or for negligent administration, nor authorities interpreting any of these provisions as conferring a private law right of action.
In summary, the tort of negligence requires the following:
• there must be a duty of care owed;
• the requisite standard of care must not have been met; that is, there must be a breach of that duty;
• the damage suffered must be causally related to the breach; and
• the damage must not be too remote; that is, it must be reasonably foreseeable.
Unsafe working conditions
The Commonwealth has the same duties as other employers to provide safe working conditions, either directly or through the agency of other Commonwealth employees. This will attract liability for the usual raft of workplace injuries, including defective equipment, dangerous premises, and dangerous activities (but not activities occurring in active service). It will also attract liability for injuries arising out of the conduct of other service personnel, such as ‘hazing’, pranks or sexual assault.
Failure to provide timely or accurate advice (‘negligent advice’)
The Commonwealth’s relationship with service personnel is complicated by two factors that do not exist in employment relationships in the private sector.
First, the employment of public sector employees, including military personnel,[9] is largely statutory, whereas private sector employment is mainly contractual. For this reason, practitioners who are primarily familiar with private sector employment issues should pause and consider the potential differences before taking any irreversible action on behalf of a client.
For example, past and present military personnel have no access to the unfair or unlawful dismissal remedies under the Fair Work Act 2009 (Cth) (FWA) because they are not deemed to be employees of the FWA or in a contractual relationship with the Commonwealth.[10]
Secondly, the Commonwealth is not only the employer but also the administrator of administrative and regulatory schemes potentially relevant to military employment. These additional roles give rise to a second and discrete set of potential liabilities in tort, which have their own criteria.
For example, reg 68 of the Defence (Inquiry) Regulations 2018 (Cth) (made under the Defence Act 1903 (Cth)) provides statutory protection in tort for any inquiry official[11] acting in good faith. If the officer concerned has no liability in tort, the Commonwealth cannot be vicariously liable for the non-existent tort.
The Work Health and Safety Act 2011 (Cth) addresses unsafe working conditions, and s10 binds the Commonwealth. It explicitly does not create any private right of action that an injured service person can invoke (s267).
The most common scenarios in which potential torts arise from the employer and administrator roles of the Commonwealth concern allegations of:
• failure of the Commonwealth, through its agencies, to provide timely and accurate advice to injured personnel; or
• where that failure is itself the cause of an injury (physical, mental or economic).
The issue is complicated by the context in which the negligent advice was given or not given. The advice may have been given or not given by other service personnel or Department of Defence civilian administrative staff (so the common law on negligent advice applies), or by staff employed by the Commonwealth in one of the military compensation or superannuation agencies (so different and more stringent criteria apply).
Relevant case law
The leading case on negligent advice to citizens is the Full Federal Court decision in Scott v Secretary Department of Social Security[12] (Scott). A Centrelink officer failed to advise the plaintiff of his entitlement to a Disability Support Pension, leading to its belated commencement. The Full Court held that the Social Security (Administration) Act 1999 (Cth) did not create any right of a common law action: ‘[T]here was no general common law duty of care’ – nor was there one under the Social Security (Administration) Act – to advise the plaintiff ‘of benefits that might potentially be available under the Act’,[13] nor was there any common law duty in negligence.[14]
Post-Scott, the tort of negligence was modified by various state and territory legislation following the Ipp Review in 2002. There is no Commonwealth equivalent, so the state or territory laws apply to the Commonwealth for federal decisions made within the state or territory. The Ipp Review legislation in the different jurisdictions varies but follows a similar pattern. Practitioners should be sure to consult the relevant legislation in their jurisdiction.
The ACT’s Civil Law (Wrongs) Act, ss110–2 provide the relevant criterion. The terms are arguably so broad as to be unhelpful. The case law is almost entirely centred on accidents occurring on roads, in buildings and while escaping fires. The provisions offer little guidance for a private law action in negligence against a public sector employer for negligent advice or a failure to exercise its statutory powers.[15]
The cases determined to date post-Ipp Review provide little encouragement for a successful action in tort against the Commonwealth in its regulatory capacity.
In McColley v Commonwealth of Australia[16] (McColley), the ACT Court of Appeal considered the Civil Law (Wrongs) Act in the context of the Commonwealth Department of Veterans’ Affairs’ (DVA’s) power to investigate and rescind liability under the Veterans’ Entitlements Act 1986 (Cth) (VEA). The plaintiff, the widow of veteran Mr McColley, who committed suicide in 2008, pleaded that the DVA owed a duty of care to Mr McColley in deciding to investigate his entitlement to the disability pension and how this was investigated. Ms McColley submitted that the DVA was required to take reasonable steps to avoid foreseeable damage or injury during its investigation of the deceased for alleged fraud in connection with a VEA pension. She argued that the Commonwealth generally owes a duty of care in exercising its functions,[17] and that it breached that duty through failing to complete the investigation within a reasonable time when the DVA knew, or ought to have known, that the length of the investigation was causing a mental injury, or aggravation of a mental injury, to the deceased. She further argued that the defendant had failed to adhere to the principles of natural justice in conducting its investigation.[18]
The trial judge summarily dismissed the claim because it was not reasonably arguable that such a duty existed. The ACT Court of Appeal set aside the summary dismissal on the basis that there was a potential argument arising from the fact that:
• The decision to investigate and how the investigation was carried out were not subjects to which administrative review applied under the VEA.
• Other instruments might bear on the DVA’s duty, including its Service Charter, which seemingly conveys several rights to individuals dealing with the DVA such as ‘delivering services in a timely manner’ and being fair and ethical.[19]
However, the Court of Appeal did not ultimately determine the issue of whether a duty of care existed.[20]
After McColley, the Australian Veterans’ Recognition (Putting Veterans and Their Families First) Act was enacted, which on its face may have provided some support for the plaintiff in McColley had it been in force at the relevant time but for the fact that s10 specifically abrogates the creation of any private rights arising from the enactment.
In EOX17 v Commonwealth of Australia,[21] Perry J in the Federal Court of Australia heard a claim based on negligent decision-making by Centrelink under the Social Security Act 1991 (Cth). The plaintiff pleaded a common law duty and a breach of s25 of the Public Governance, Performance and Accountability Act 2013 (Cth).
Her Honour dismissed both claims. The common law duty claim was rejected, partly on the basis of Scott.[22] The claim under s25 was dismissed because the section created no private right of action.[23]
Ibrahimi v Commonwealth[24] concerned the Commonwealth’s duty to act to save distressed asylum seekers in an incident that involved personal injuries. The NSW Court of Appeal dismissed the claim, saying that:
• foreseeability of the damage alone was not sufficient to give rise to the duty of care; and
• a failure to act does not give rise to a private action unless the statute mandates the action, which were not the facts of that case.
For the above reasons, leaving to one side the further problems of suing for personal injuries referred to below, there is little hope of a successful claim for negligent advice or breach of statutory duty by past or present military personnel.
The express statutory bars in the DRCA and MRCA
The principal legislation relevant to military compensation is:
• Compensation (Commonwealth Employees) Act 1971 (Cth) (CCE).
• Veterans’ Entitlements Act 1986 (Cth) (VEA).
• Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (DRCA) (previously the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRCA)).
• Military Rehabilitation and Compensation Act 2004 (Cth) (MRCA).
Following the enactment of the MRCA on 1 July 2004, the compensation entitlements for injured past and present ADF members are now fragmented into the following schemes:
• From 7 December 1972 to 1 December 1988: veterans injured on active or operational service were entitled only under the VEA, pt II and had no entitlement under the CCE. Meanwhile, veterans injured on peacetime service could choose to receive benefits under either the VEA, pt IV or the CCE.
• From 1 December 1988 to 7 April 1994: veterans injured on active or operational service were entitled only under the VEA, pt II while veterans injured on peacetime service could choose to receive benefits under either the VEA, pt IV or the SRCA (later re-enacted as the DRCA).
• From 7 April 1994 to 1 July 2004: veterans injured while on active or operational service could choose between the benefits payable under the VEA or DRCA. Veterans injured in standard peacetime service only had the DRCA option.
• After 1 July 2004: for service personnel who have suffered injuries during either warlike, non-warlike or peacetime service, the MRCA became the only option for compensation or benefits payable. However, those who have been assessed to reach 50 impairment points (out of a maximum 80) can choose the Special Rate Disability Pension;[25] this is similar to the special rate pension (permanent incapacity (PI)) under the VEA.[26]
Other schemes that may apply to military personnel cover specialised claims, such as the Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006 (Cth) and the Dust Diseases Tribunal Act 1989 (NSW). The former only sets out eligibility for treatment and does not provide any scope for compensation. Additionally, claims regarding the Maralinga nuclear tests have been brought against the British government but have failed.[27] Dust claims are not brought against the Commonwealth as the employer but against the manufacturer of the product that caused the relevant cancers.
Before 1 December 1988, there was no statutory prohibition on injured service people suing the Commonwealth in common law tort (as discussed above).[28] From 1 December 1988, ss44 and 45 of the SRCA (later re-enacted as the DRCA) abrogated the right to sue the Commonwealth as the employer or fellow Commonwealth employees for injuries occurring after that date. It did not abrogate:
• The right to sue non-Commonwealth third parties in tort, although the DRCA contains provisions in ss48 and 119 to set off any damages recovered from third parties against past and future statutory entitlements.
• Common law claims by the dependants[29] of deceased past and present ADF members (s44(3) of the DRCA).
• Claims not involving losses arising from personal injuries, for example, defective administration claims, discrimination and other human rights claims, and contractual unlawful dismissal claims.
These prohibitions were then replicated in s388 of the MRCA:
‘(1) Subject to section 389, an action or other proceeding for damages does not lie against the Commonwealth, or a potentially liable member, in respect of:
(a) a service injury sustained, a service disease contracted by another member or a former member; or
(b) the loss of, or damage to, a medical aid used by another member.
Note: However, a person may choose to institute an action for damages for non-economic loss against the Commonwealth or the potentially liable member under section 389.’
The words ‘an action or other proceeding’, (also in s44 of the DRCA) are broader than just actions in tort. They preclude any actions at common law or a statutory cause of action for a personal injury in the course of employment. The provision catches actions for mental injuries arising from breach of contract, discrimination and other violations of human rights, breach of the Privacy Act 1988 (Cth), breach of work, health and safety laws, breach of the FWA, and more. But they do not apply to actions against the Commonwealth that do not plead a physical or mental injury, for example, economic loss for unfair dismissal or loss of career opportunities.
In this context, it should be noted that a mental injury requires a clinical diagnosis. Mere embarrassment, humiliation, anger and the range of other normal human reactions to the relevant stressors are not mental injuries and so are not caught within ss44–5 of the DRCA and ss388–9 of the MRCA.
Section 389 of the MRCA (DRCA, s45) provides a limited common law option. It applies where:
• a personal injury is sustained in the course of the employment;
• for which compensation is payable under the MRCA; and
• permanent impairment of 10 pts or more has been assessed under s67 of the MRCA or s24 of the DRCA; and
• once the election to take common law action is made, it is irrevocable.
Permanent impairments under s68 of the MRCA are assessed by referencing a particular statutory Guide to the Assessment of Rates of Veterans’ Pensions (GARP M). The percentage impairment from the GARP M is applied to the indexed statutory amount. To this sum, an additional amount is added under s67 to reflect lifestyle losses. The permanent impairment provisions in the MRCA are complex and depend on the age of the injured person and whether the injuries were suffered in warlike circumstances, non-warlike circumstances, or peacetime service. The payment can then be taken as a pension or a lump sum, or a combination of each.
Permanent impairments under s24 of the DRCA are assessed under pt 2 of the Comcare Guide to the Assessment of Permanent Impairment, which is much simpler than the GARP M, and are paid only as a lump sum.
The maximum permanent impairment under the MRCA is paid when the combined total impairment from all accepted injuries reaches 80 pts. The indexed amount is about $21,000 pa. The lump-sum equivalent is calculated from the life expectancy tables.[30]
Under the DRCA, there is no maximum cap, and the lump sum depends on the number and severity of the injuries.
In either the MRCA (s389) or DRCA (s45), an injured person can make an irrevocable election to forgo the permanent impairment compensation and sue the Commonwealth at common law for general damages only, capped at $110,000.[31]
There are several things to note about s389 and s45:
• The injured person cannot elect to forego compensation for economic loss; that is, incapacity payments, medical treatment costs, household assistance, rehabilitation, etc.
• The injured person can forgo the permanent impairment lump sum and sue for general damages only (commonly referred to as pain and suffering).
• The injured person will need to prove the negligence of the Commonwealth, which is an essential integer for the common law claim, whereas the statutory schemes are no-fault schemes and hence do not require any element of negligence.
• If the injured person fails in the common law claim, they will be ordered to pay the Commonwealth’s costs.
• If the injured person wins the common law claim, the most that can be awarded is $110,000, out of which the lawyers will take the solicitor-client component of costs, which could reasonably be expected to be half of the $110,000.
Practitioners should not make the election on behalf of their clients until they have:
• assessed the total likely permanent impairment payable under the statutory scheme and compared this to the maximum general damages of $110,000;
• appropriately costed out the risk/benefit of any common law action, including risks of failing on the liability issue in whole or part;
• assessed the likely costs of a common law action, including the likely unrecoverable solicitor/client costs; and
• obtained written instructions from the client.
In practice, there are few circumstances where it is wise to make the common law election.
SCENARIO 2: SUING THIRD PARTIES FOR INJURIES SUFFERED DURING MILITARY SERVICE DUE TO THE NEGLIGENCE OF A THIRD PARTY
Section 48 of the DRCA (MRCA, ss401–2) regulates the entitlement to compensation under the statutory schemes for an injury where the employee also recovers damages from a third party (not the employer) for the same injury.[32]
Section 48(3) of the DRCA (MRCA, s401(2)) defines the extent of the applicant’s duty to repay Comcare or the DVA following a judgment or settlement at common law against the third party. That duty extends to the repayment of compensation paid to the applicant for the same injury for which the common law damages were paid.[33] The extent of the repayment required is capped at the total amount of the common law damages.
Section 48(4) of the DRCA (MRCA, s402(2)) contains a trap for the unwary practitioner. If an injured employee receives any damages, no matter how small, from a third party, then apart from the repayment of past compensation, the employee will be prospectively excluded from further compensation under the DRCA or MRCA.
The VEA has a similar clawback scheme known as ‘compensation recovery’. This essentially replicates the compensation recovery provisions of the Social Security Act, which also operates retrospectively and prospectively, although the compensation preclusion periods are not absolute and so not as penal as the DRCA and MRCA provisions.
There has been a range of professional negligence cases against practitioners who have run common law damage claims against third party defendants with an outcome substantially less than the total compensation to which the client would have been entitled under the VEA, DRCA or MRCA over their lifetime.
Before commencing any common law action for an ‘injury’ within the meaning of the VEA, DRCA or MRCA, a practitioner should:
• undertake a realistic assessment of the past and likely future benefits the client may be entitled to under the VEA, DRCA or MRCA, ensuring that all heads of compensation under the legislation are covered;
• undertake a realistic assessment of likely damages at common law after costs have been deducted;
• ensure that medical treatment costs and rehabilitation costs are not factored into the realistic assessment of damages as these costs are neutral to the client and would be paid under the statutory schemes in any event; and
• make a careful assessment of whether the common law damages are likely to be reduced for contributory negligence.
The client should be informed of their option to remain within the VEA, DRCA or MRCA schemes or pursue the common law remedy and should be appraised of the likely risks and benefits of each option.
SCENARIO 3: SEEKING REDRESS UNDER OTHER COMPENSATION SCHEMES
CDDA Scheme
The Compensation for Detriment caused by Defective Administration Scheme (CDDA) is not embodied in any statute; it is a policy created by the Commonwealth relying upon its Executive Power in the Constitution.[34] Its terms can be found on the Department of Finance, DVA and Defence websites.[35]
The CDDA applies only if there is no other cause of action at law open to the aggrieved person. If liability is accepted under any of the above statutory schemes, the person will not be eligible for a CDDA grant for the same injury. If, however, liability under the statutory schemes has been denied, then there is no bar to the person commencing a CDDA claim. If the person has not made a claim under the statutory schemes, then any CDDA application is likely to be denied until the person pursues statutory remedies.
A claimant must prove the defective administration relied upon and the quantified detriment they have suffered from the defective administration. The amount awarded is discretionary and is generally not very large. There is no right of appeal from a decision under the CDDA except for judicial review for an error of law.
National Redress Scheme
The National Redress Scheme was created in response to the findings of the Royal Commission into Institutional Responses to Child Sexual Abuse[36] and is governed federally by the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) (Redress Scheme). The Redress Scheme applies to past and present military personnel who were victims of sexual abuse while in service and whose service commenced before they turned 18. Past and present military personnel may also apply under the Redress Scheme for any sexual abuse suffered as a minor before enlistment.
Payments under the Redress Scheme are not categorised as ‘compensation’ or ‘damages’ and do not arise from an action or legal proceedings.[37] They are, therefore, not caught by ss44–5 and 48 of the DRCA (MRCA, s49).
Because of this classification, Redress Scheme money will not affect the assessments of incapacity or permanent impairments under the statutory schemes, but the converse may apply; for example, the amount awarded under the Redress Scheme may be reduced in the expectation that a statutory entitlement claim could be made.
There can be a trap when making an application under the Redress Scheme. In the VEA, to qualify for a special rate (totally and permanently incapacitated) pension (TPI pension), the service-related injury must be the ‘sole’ cause of the total incapacity for work. In some cases, service personnel have suffered sexual assaults as a minor before joining the military. The assaults may have caused considerable long-term trauma that may have had a formal diagnosis. Service personnel rarely disclose this history in their enlistment, medical or otherwise. The same person may then suffer a traumatic mental injury on military deployment, for which they later apply for a TPI under the VEA. In the application, service personnel seldom disclose the existence of the prior psychiatric condition from the pre-enlistment sexual assault, and so the TPI pension is granted on the premise that the PTSD from the deployment was the sole cause of the psychiatric incapacity for work. Post-retirement, the same person may apply for compensation under the Redress Scheme and, in so doing, disclose the prior (and often continuing) trauma from the sexual assault.
This may lead the DVA to retrospectively investigate and rescind the TPI pension for the failure of the ‘sole’ cause test. The person will then have to repay the whole amount received from DVA, and the person is also not entitled to any TPI pension prospectively. For the Redress Scheme compensation to be worth seeking, the amount paid under the Redress Scheme would need to exceed the amount of the DVA payback and future loss of TPI. It would be rare that this would be the case.
The only way around this dilemma would be for the person to apply to retrospectively transfer out of the VEA to the DRCA or MRCA because neither of these statutes has a ‘sole’ cause test. On transfer, there would be an entitlement to both back payments with a set-off for monies received under the VEA and for future payments.
SCENARIO 4: JUDICIAL REVIEW AS A REMEDY
Judicial review is not a remedy in tort and is not primarily a remedy for damages or compensation. In the present context, its relevance is largely limited to challenging the lawfulness of the actions of the Commonwealth and its employees, whether in the statutory employment context or as part of the military compensation and superannuation schemes. Generally, if there is an alternative administrative review remedy available such as through the Administrative Appeals Tribunal (AAT), then a judicial review application is likely to fail.
Even where available, a judicial review is an inadequate remedy for former and current ADF members because:
• it does not permit a review of the merits of a decision – it is limited to finding an error of law;
• it requires the retention of lawyers, particularly specialist lawyers at a considerable cost;
• establishing an error of law is notoriously unpredictable, and costs are awarded if the application fails;
• even if an error of law is found, it must affect the validity of the decision in question;
• then the matter is remitted to the decision-maker to have another go at making the same decision, only without committing the error of law;
• the decision-maker almost always makes the same decision while avoiding the error of law; and
• if the application is successful, the Commonwealth often appeals to the Full Federal Court or even the High Court and the hapless application is locked into this process with its very substantial costs and time delays.
There is no real access to justice in this process. A right that is beyond a person's economic capacity to exercise is no right at all.
To a lesser degree, the same issue exists in military compensation claims to the AAT; there are now few claims. There are various reasons for this, including:
• the complexity of the military compensation legislation that mandates specialist lawyers;
• the cost of lawyers and expert medical witnesses;
• the reticence of lay advocates to embark on AAT proceedings;
• the propensity of the Commonwealth to adopt an adversarial approach to the proceedings; and
• the prospect of further appeal to the Federal Court.
CONCLUSION
For injured service personnel, electing to sue the Commonwealth at common law is seldom a wise decision.
Suing a third party may be worthwhile, but it would need no significant risk attached to liability or contributory negligence. The quantum assessment would need to be calculated and compared to the likely past and future payments under the statutory schemes.
The criteria for any claims under other compensation schemes would need to be considered in the light of potential paybacks or disqualification from the VEA, DRCA or MRCA.
Practitioners should not engage in an automatic reflex response that if there is a potential action or claim available, then it should be made.
Adjunct Professor Allan Anforth AM is a barrister and Adjunct Professor of Law at the University of Canberra.
Boston White is a law student and a former ADF member.
[1] DVA, Australian Defence Veterans’ Covenant <https://recognition.dva.gov.au/oath-text-version>.
[2] Australian Veterans’ Recognition (Putting Veterans and Their Families First) Act 2019 (Cth), s10.
[3] Such as criticism surrounding ‘policy defence’. See J Bell-James and K Barker, ‘Public authority liability for negligence in the post- Ipp era: Sceptical reflections on the ‘policy defence’, Melbourne University Law Review, Vol. 40(1), 2016, 1.
[4] There is no authoritative test for the tort of misfeasance in public office: see Obeid v Lockley [2018] NSWCA 71; (2018) 98 NSWLR 258, [103] and [225]; Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553, [3].
[5] See Plaintiff M83A v Morrison (No. 2) [2020] FCA 1198.
[6] M Aronson, ‘Misfeasance in public office: Some unfinished business’, UNSW Law Research Series, No. 55, 2015; B Richards and M De Zwart, Tort Law Principles, 2nd ed, Thomson Reuters Australia, 2017, [18.60].
[7] See K Barker and K Lamont, ‘Misfeasance in public office: Raw statistics from the Australian front line’, The Sydney Law Review, Vol. 43(3), 2021, 315 at 324–5; Farrington v Thomson [1959] VicRp 49; [1959] VR 286; Tomkinson v Weir (1999) 24 SR (WA) 183; De Reus v Gray [2003] VSCA 84; (2003) 9 VR 432; Gallo v Schubert [2004] VCC 36; Cornwall v Rowan [2004] SASC 384; (2004) 90 SASR 269; South Australia v Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331; Cunningham v Traynor [2016] WADC 168; Nyoni v Shire of Kellerberrin ([2017] FCAFC 59; 2017) 248 FCR 311; Brett Cattle Co Pty Ltd v Minister for Agriculture [2020] FCA 732; (2020) 274 FCR 337.
[8] Richards and De Zwart, above note 5, [15.10]; G Watson, ‘Public law in private law actions: Statutory duties, functions and powers under CLAs’, Precedent, No. 67, 2016; Scott v Secretary Department of Social Security [2000] FCA 1241, [15]; Skinner v Commonwealth of Australia [2012] FCA 1194, [37]–[39].
[9] With a dose of historical prerogative overlay.
[10] C v Commonwealth of Australia [2015] FCAFC 113.
[11] See Defence Force Act 1903 (Cth), ss110P–Q.
[13] Ibid, [20].
[14] Ibid, [24]. See also Moder v Commonwealth of Australia; Sochorova v Commonwealth of Australia [2012] QCA 92, [55]–[61].
[15] M Aronson, ‘Government liability in negligence’, Melbourne University Law Review, Vol. 32, 2008.
[17] McColley v Commonwealth of Australia [2012] ACTSC 154, [13].
[18] Ibid, [4].
[19] Ibid, [16]; Department of Veterans’ Affairs, DVA Service Charter (14 September 2021) 3 <https://www.dva.gov.au/sites/default/files/2021-09/service-charter-2021.pdf>.
[20] Ibid, [60]–[74].
[22] Ibid, [39]–[43].
[23] Ibid, [44].
[25] Military Rehabilitation and Compensation Act 2004 (Cth) (MRCA), ss199–200.
[26] Veterans’ Entitlements Act 1986 (Cth) (VEA), s24.
[27] In 1993, the Keating Labor government accepted a $50 million ex-gratia compensation payment from Britain to settle all future Maralinga claims. The last class action brought against the British government failed in 2012: Ministry of Defence v AB and others [2012] UKSC 9.
[28] Both the VEA and the Compensation (Commonwealth Employee) Act 1971 (Cth) contained provisions for offsetting any common law damages received from the past and future statutory benefits (CCE, s99; VEA, s30K).
[29] See Safety Rehabilitation and Compensation (Defence Related Claims) Act 1988 (Cth), s4 for a definition of ‘dependant’ in relation to a deceased employee.
[30] DVA, ‘Conversion factors – permanent impairment periodic payments to lump sums where the election for lump sum is made on or after 1 March 2021’, Military Compensation MRCA Manuals and Resources Library (9 April 2021) <https://clik.dva.gov.au/military-compensation-mrca-manuals-and-resources-library/actuary-tables-used-age-adjusting-lump-sum-payments/conversion-factors-permanent-impairment-periodic-payments-lump-sums-where-election-lump-sum-made-or-after-1-march-2021>.
[31] MRCA, s389(5).
[32] Comcare v Starkey [2017] FCAFC 151.
[33] Telstra Corporation Limited v Barrow [1994] FCA 1141; (1994) 19 AAR 523; Re Frank and Comcare (1996) 41 ALD 597; Perry and Australian Postal Commission [2004] AATA 873; Slattery v Comcare [1996] FCA 883; McIntyre v Comcare (1998) 50 ALD 416; Comcare v Fyfe [1999] FCA 1368.
[34] Constitution of the Commonwealth of Australia, s61.
[35] The most straightforward explanation being the Department of Finance – see ‘Scheme for compensation for detriment caused by defective administration (CDDA Scheme)’ (2021)
<https://www.finance.gov.au/individuals/act-grace-payments-waiver-debts-commonwealth-compensation-detriment-caused-defective-administration-cdda/scheme-compensation-detriment-caused-defective-administration-cdda-scheme>.
[36] Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report Recommendations (15 December 2017).
[37] National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth), s49(1).
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