Federal Court denies pensioner's representative proceeding against Services Australia, the Ombudsman

Paschke sought to have the assessable curtilage of the group members reassessed. If the assessable curtilage was overvalued, he sought to have compensation, in the form of backpay, be paid. Paschke confirmed before the primary judge that he was not himself claiming any entitlement to any unpaid pension. He was concerned that his pension might be affected in the future if Services Australia persisted with how it values assessable curtilage.

The primary judge gave three reasons for dismissing the proceedings:

• There was no exceptional reason that would justify leave being given to Paschke to conduct representative proceedings even though he is not legally qualified.
• Paschke did not have sufficient personal interest to bring the proceedings as a representative applicant because he is not adversely affected by any decision concerning his pension entitlement.
• Paschke’s claim that the Ombudsman refusing to investigate was unlawful did not involve a claim of lack of good faith. As a result, the claim is covered by the immunity afforded to the Ombudsman.

The Federal Court ruled that the representative proceedings that Paschke sought to commence failed to satisfy the Federal Court (FC) Act requirements. The court found that Paschke did not have a claim against each of the respondents because his pension was not affected.

The court emphasized that Australian law does not recognize a general right to privacy independent of the law of tort or breach of confidence. Paschke’s claims were not based on tort or breach of confidence. Consequently, any claim for emotional distress was not connected to a tortious cause of action.

Furthermore, the court found that the proceedings were not validly initiated because Paschke did not have sufficient interest to commence proceedings on his behalf. Accordingly, he could not commence a representative proceeding because the proceedings did not comply with the FC Act. The court concluded that the primary judge did not commit an error in dismissing the proceedings because Paschke had no right to initiate the representative proceedings.

The court likewise ruled that there was no error in the primary judge’s refusal to grant leave to Paschke as a person who is not a legal practitioner to represent group members. The court emphasized that it has the inherent jurisdiction to control its processes and procedures, including when a person who is not a lawyer may appear on behalf of another person in proceedings before the court.

The court said lay people do not have the right to act on another’s behalf in court proceedings without leave of the court. As a matter of practice, there is no reason why this principle should not apply with equal force to representative proceedings.

The court further said that representative proceedings should ordinarily be conducted by way of a legal representative having regard to the important duties a lead applicant owes to group members. The outcome of representative proceedings binds group members, and the conduct of the proceedings can impact the disposition of group members’ rights. Ultimately, the court did not find any error in the primary judge’s exercise of discretion in a matter of practice or procedure.

The court also pointed out that Paschke had not made any specific claim of a failure on the part of the Ombudsman to act in good faith. Accordingly, the court said there was no basis on which Paschke’s claims against the Ombudsman can proceed even as a proceeding other than a representative proceeding.