Bird, G.J. v Volker, D
[1994] FCA 980
•14 DECEMBER 1994
GEOFFREY JAMES BIRD v. DEREK VOLKER, SECRETARY AND CHIEF EXECUTIVE OF THE
DEPARTMENT OF EMPLOYMENT EDUCATION AND TRAINING, THE HONOURABLE SIMON CREAN,
MINISTER FOR EMPLOYMENT EDUCATION AND TRAINING AND THE HONOURABLE ROSS FREE,
MINISTER FOR SCHOOLS VOCATIONAL EDUCATION AND TRAINING
No. QG132 of 1994
FED No. 980/94
Number of pages - 4
Application To Dismiss - Judicial Review
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
KIEFEL J
CATCHWORDS
Application To Dismiss - no reasonable basis for application
Judicial Review - Austudy - no decision required to be made
Student Assistance Act
Austudy Regulations
Federal Court Act s 33C
Administrative Decisions (Judicial Review) Act
Judiciary Act s 39B
Federal Court Rules O 20 r 2, O 54 r 6
Bird v Secretary of the Department of Employment, Education and Training unreported decision of Davies J, 25 July 1994 Refd
Australian National University v Burns (1982) 43 ALR 25 Refd
Emmanuele v Cahill (1987) 71 ALR 302 Refd
Pearce v Button (1985) 60 ALR 537 Refd
HEARING
BRISBANE, 20 and 26 October 1994
#DATE 14:12:1994
The Applicant appeared in person.
Counsel for the respondents: Mr D. Pestorius
Solicitors for the respondents: Australian Government
Solicitor
ORDER
THE COURT ORDERS THAT:
1. The applicant's application be dismissed.
2. The applicant pay the respondents' costs of and incidental to the proceedings to be taxed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
JUDGE1
KIEFEL J Mr Geoffrey James Bird is a student and in receipt of Austudy Benefits under the Student Assistance Act 1973. On 28 July 1994 he wrote on behalf of the "Australian Union of Students", the applicant named in these proceedings, and indeed on behalf of all students in Australia receiving Austudy payments, to the Secretary and Chief Executive of the Department of Employment Education and Training. That Department administers that Act. Mr Bird enclosed a "log of claims" and required a decision upon the requests or demands contained within that document. In summary the Department was required to introduce a system which would enable a student receiving Austudy payments to nominate a union, society, health fund or other organisation from a number listed on a "payroll deduction form" which would be sent to students with their Austudy application form, and to advise the amount which was to be deducted from that student's Austudy benefits and to be paid to the nominated organisation. The Department was additionally required to provide details of those organisations in its annual "Guide to Student Finance" booklet, subject however to the approval of the organisations. The scheme, when implemented, would also have the Department providing information on a regular basis to the organisations. Mr Bird considered such a scheme would be of benefit to students, in particular as a method of ensuring they pay subscriptions where their ability or willingness to save might otherwise prevent this. Mr Bird also required the Department to consider, and agree, that where payments to a student were to be made over a period of six months or longer, that the first payment be four times as great as the balance. Presently, and subject to a determination to pay an advance to any student, fortnightly payments are provided for by the regulations to the Act. On the same day Mr Bird wrote to the Ministers for Employment, Education and Training and for Schools, Vocational Education and Training who have also appeared in these proceedings by Counsel. Each of those persons was required to provide a decision and Mr Bird sought orders naming those three persons as respondents in lieu of the Department and I will direct accordingly.
One Society referred to in the material, the Wilderness Society, was apparently served and initially appeared but did not seek to be joined to the proceedings or to make submissions.
By letter dated 17 August 1994 from the assistant secretary of the legal branch of the Department, and on behalf of the Secretary of the Department and the two Ministers, Mr Bird was informed that the Department had looked at the log of claims and:
"The Department does not consider that the points raised have merit and will therefore not be implementing any of the matters raised in the log of claims."
As to the proper applicant, Mr Bird contended that he was entitled to use the name "Australian Union of Students", in respect of which an application for registration of a trademark has been made, by way of analogy to the rules relating to business or partnership names or by reference to provisions as to the bringing of class proceedings. Mr Bird's difficulty is, as he informed me, that he is the only member of the group he refers to. He is the Australian Union of Students. He was only able to suggest there might be other members in the future and who might be persons likely to receive financial assistance under the Student Assistance Act. Mr Bird submitted that the proceedings ought to be left as entitled to see who would "opt out" of the proceedings and frankly described the process as one akin to a petition which, because of the name which he wished to use and the issues it would create, would attract publicity. Mr Bird does not trade under the name referred to as a business and is not in partnership. Section 33C of the Federal Court Act requires that there be at least seven persons having the required closely connected claims subject to the discretion provided in s.33L. There are however no other members of a group and no basis for the exercise of that discretion. I will therefore direct that the name of the applicant be amended to read Geoffrey James Bird.
Mr Bird seeks declarations and orders under the Administrative Decisions (Judicial Review) Act and under s.39B(1) of the Judiciary Act. The respondents seek orders dismissing the application under O.20 r.2 (and O.54 r.6) there being no reasonable basis for the application disclosed and because the proceedings are an abuse of the process of the Court.
Mr Bird did not contend for a review of the decision on its merit. Whilst Mr Bird made the submission that the decision was legally invalid for unreasonableness, the relief he seeks are declarations and mandatory orders which oblige his log of claims to be implemented.
Neither s.7 nor s.11(1) of the Student Assistance Act, referred to by Mr Bird, creates such an obligation. Section 11(1) is, as Davies J referred in another application brought by Mr Bird (Bird v. Secretary of the Department of Employment, Education and Training in NG338 of 1994, decision 25.7.94) a discretionary power which would, if made, override the mode and timing of payment otherwise provided for in the regulations. That section is also concerned, it seems to me, with individual circumstances and not those which would relate to students generally and which are the subject of the regulation making power (see s.56(e) and Reg.12A and B). Section 7, Mr Bird submits, points to a power to grant a benefit and therefore implies there is a power to pay it in different ways, such as his proposed payroll deduction scheme. Section 7 is however concerned with who might be the recipient of benefits. Subject to s.11(1) it is the regulations to be made by the Governor-General which deal with the subjects he pursues. Neither section requires the decisions sought.
Mr Bird then submitted that it would be sufficient for judicial review if he could point to a connection between the decision and the enactment and that here the decision could be seen to be derived from some broadly stated power, and relied on Australian National University v. Burns (1982) 43 ALR 25 and Emmanuele v. Cahill (1987) 71 ALR 302. The connection with the Student Assistance Act here is only that the decision-makers and in particular the Secretary of the Department are those generally administering the Act. That would not of itself suffice to qualify the decision as one "made under an enactment". But in any event Mr Bird's submission does not have regard to the particular relief he seeks, which requires that there be some obligation.
Mr Bird then contended that there is power in any event to make a declaration if it was considered it would be useful and referred to Pearce v. Button (1985) 60 ALR 537. There is however no circumstance to which a declaration could properly be addressed. There is no statement of the parties legal rights or obligations which could be made here.
The remaining relief sought was a declaration that Reg.12B of the Austudy Regulations was invalid but I heard no submissions upon it and cannot in any event see any basis on the material for impugning it.
Although it is unnecessary in light of my other findings I was also of the view that Mr Bird was not, with respect to the relief sought under the Administrative Decisions (Judicial Review) Act, a person "aggrieved" since he was in no different position from any other student and no interest of his was affected by the decision. Mr Bird appeared to equate that requirement with a refusal of any request which he considered might be of some benefit to a student.
Mr Bird's application will be dismissed and I propose to order that Mr Bird pay the respondents' costs of and incidental to the proceedings to be taxed.
I should also add that I have some concern about Mr Bird continuing to bring applications with respect to his Austudy benefits or the scheme to this Court. Davies J has heard two applications earlier this year. Both applications were dismissed with Mr Bird being ordered to pay costs and, on my reading of His Honour's reasons, both applications were considered to be misconceived. Mr Bird has appeared before me on a number of occasions with respect to two applications, one of which required a separate consideration of his request that I disqualify myself. The other application I dealt with was concerned with the alleged cancellation of Mr Bird's Austudy payments. Davies J dealt with a similar question. Mr Bird had a legal technical argument which he considered justified the matter being brought in this Court and not before the Student Assistant Review Tribunal constituted under the Student Assistance Act, but it seemed to me he simply considered proceedings here might be determined more quickly. The matter was resolved by undertakings although resurrected again by Mr Bird when he brought a motion for breach of those undertakings. In fact Mr Bird sought by those means to obtain a further order, not covered by the undertakings made. Needless to say these matters have occupied considerable time. None of them has been of substance and each of them doomed to failure. Mr Bird would be well advised in the future to consider alternative means available for the resolution of these questions.
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