Browne and Secretary, Department of Employment

[2015] AATA 978

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )

)         No: 2015/3476

General Division  )

Re: William Browne
Applicant

And: Secretary, Department of Employment
Respondent

DIRECTION

TRIBUNAL:   Deputy President Dr Christopher Kendall

DATE:            13 January 2016

PLACE:         Perth

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the Order in this application as follows:

·the insertion of the words ‘on basis that applicant’ between the words ‘(Cth)’ and ‘has’ in the Catchwords; and

• the insertion of the words ‘for an advance’ between the words ‘eligible’ and ‘under’ in Paragraph 1 of the Reasons for Order.

.......................................[sgd].............................

Deputy President    

Browne and Secretary, Department of Employment [2015] AATA 978 (2 December 2015)

Division	GENERAL DIVISION
File Number	2015/3476
Re	William Browne
APPLICANT
And	Secretary, Department of Employment
RESPONDENT

order

Tribunal

Deputy President Dr Christopher Kendall

Date

Date of written reasons

2 December 2015

17 December 2015

Place

Perth

The Tribunal is satisfied that the application for review of the decision has no reasonable prospects of success.

Pursuant to section 42B(1) of the Administrative Appeals Tribunal Act1975, the Tribunal dismisses the application for review.

........................[sgd]................................................

Deputy President Dr Christopher Kendall

Catchwords

PRACTICE AND PROCEDURE - application for dismissal of application for review – whether Tribunal satisfied that application “has no reasonable prospect of success” – general principles – application for review of decision that applicant not eligible for advance under Fair Entitlements Guarantee Act 2012 (Cth) has failed to make “effective claim” – application for review dismissed pursuant to Administrative Appeals Tribunal Act 1975 (Cth), s 42B(1)(b)

Legislation

Administrative Appeals Tribunal Act 1975 – sections 2A, 42B and 43

Fair Entitlements Guarantee Act 2012 - sections 3, 5, 10, 14 and 40

Cases

Paraponiaris and Secretary, Department of Employment [2015] AATA 895

REASONS FOR order

Deputy President Dr Christopher Kendall

17 December 2015

iNTRODUCTION

1. This proceeding derives from an application for review (the “substantive application”) of a decision of the Secretary, Department of Employment (the “Secretary”) that the Applicant, Mr William Browne, is not eligible under the Fair Entitlements Guarantee Act2012 (Cth) (the “FEG Act”), as affirmed on internal review (s 40(12)(a) of the FEG Act).

2. The Secretary applied for Mr Browne’s substantive application to be dismissed pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”) on the basis that Mr Browne’s substantive application “has no reasonable prospects of success”.

3. On 2 December 2015 the Tribunal made a decision under s 42B of the AAT Act in the following terms:

   The Tribunal is satisfied that the application for review of the decision has no reasonable prospects of success.

   Pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses the application.

4. On that occasion the Tribunal, in accordance with s 43(2) of the AAT Act, gave reasons orally for this decision.

5. On 4 December 2015 the Tribunal received a written request from the Secretary’s representative for a written statement of the Tribunal’s reasons for its abovementioned oral decision of 2 December 2015. 

6. A written statement of the Tribunal’s reasons for its decision of 2 December 2015 is provided below.

   FACTS AND PROCEDURAL HISTORY

7. Subsection 14(1) of the FEG Act provides that to be effective for the purposes of the FEG Act, a claim for an advance must be made in a form approved by the Secretary, be accompanied by any documents required by the Secretary and be made in accordance with subsection (2). Under subsection 14(2), a claim for an advance must be made before the end of 12 months after the person's employment with the employer ends or an “insolvency event” happens to the employer — whichever is later.

8. Mr Browne’s employment with his former employer ended on 17 October 2011 (T7).

9. For the purposes of the FEG Act, an “insolvency event” occurred in relation to Mr Browne’s former employer on 20 May 2014, when a liquidator was appointed to that company (T3).

10. On 19 May 2015, the Secretary received a claim from Mr Browne (T7) for an advance under the FEG Act. The claim form was not accompanied by a document required by the Secretary, being the certified documentary evidence that Mr Browne was an Australian citizen at the time his employment ended. That evidence was ultimately provided but not until 7 June 2015 (T12). This is not in dispute.

11. On 22 May 2015, a delegate of the Secretary made a decision under subsection 15(1) of the FEG Act that Mr Browne is not eligible for an advance (T11).

12. The basis on which the delegate decided that Mr Browne was not eligible for an advance was that he had not made an “effective claim” in accordance with section 14 and paragraph 10(1)(h) of the FEG Act. Specifically, he had not provided certified copies of the necessary documents by the required date.

13. On 7 June 2015, Mr Browne applied for internal review of this original decision under section 38 of the FEG Act (T12).

14. On 24 June 2015, pursuant to section 39 of the FEG Act, a delegate of the Secretary affirmed the original decision (T16).

15. The Secretary has contended before this Tribunal that the FEG Act contains strict requirements for the making of an effective claim for advance and that Mr Browne did not make an effective claim within those statutory timeframe requirements. As there is no discretion in relation to these requirements, it is contended that Mr Browne’s application should be dismissed pursuant to section 42B(1)(b) of the AAT Act on the basis that the application has no reasonable prospect of success. This is regardless of any sympathy the Secretary or the Tribunal has for Mr Browne in these circumstances.

    LEGISLATIVE FRAMEWORK

    Section 42B(1)(b) of the AAT Act

16. Section 42B of the AAT Act was amended by the Tribunals Amalgamation Act 2015, with effect from 1 July 2015. Section 42B now provides as follows:

    42B     Power of Tribunal if a proceeding is frivolous, vexatious etc.   

    (1)The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:

    (a)      is frivolous, vexatious, misconceived or lacking in substance; or

    (b)      has no reasonable prospect of success; or

    (c)      is otherwise an abuse of the process of the Tribunal.

    (2)If the Tribunal dismisses an application under subsection (1), it may, on application by a party to the proceeding, give a written direction that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.

    (3)The direction has effect despite any other provision of this Act or any other Act.

17. The Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 states that the amendments were intended to modernise the language of section 42B and clarify the policy surrounding the grounds for dismissal. The proposed new grounds were considered to be similar to dismissal powers available to other bodies, and “would provide the Tribunal with greater power to dismiss unmeritorious matters early where appropriate.”

    The FEG Act

18. There are two objects of the FEG Act, which are set out in section 3 of the FEG Act. The first is to provide for the Commonwealth to pay advances on account of unpaid employment entitlements of former employees of employers in cases where:

(i)the employers are insolvent or bankrupt; and

(ii)the end of the employment of the former employees was connected with that insolvency or bankruptcy; and

(iii)the former employees cannot get payment of the entitlements from other sources.

1. The second core object of the FEG Act is to allow the Commonwealth to recover the advances through the winding up or bankruptcy of the employers and from other payments the former employees may receive for the entitlements.

2. A person is eligible for an advance under the FEG Act if the Secretary is satisfied of all of the matters listed in subsection 10(1) of the FEG Act. One of those matters, contained in paragraph 10(1)(h), is that an effective claim (see section 14) “that the person is eligible for the advance has been made to the [Secretary] by or on behalf of the person”. As such, a person is not eligible for an advance under that Act in the absence of an effective claim.

3. The requirements for making an “effective claim” are set out in section 14 of the FEG Act, which relevantly provides as follows:

   14       Making an effective claim

   (1)To be effective for the purposes of this Act, a claim that a person is eligible for an advance for the person’s employment by an employer must

   (a)       be in a form approved by the Secretary; and

   (b)       be accompanied by any documents required by the Secretary; and

   (c)be made in accordance with subsection (2), and with subsection (3) if it applies.

   (2)The claim must be made before the end of 12 months after the later of the following events:

   (a)       an insolvency event happens to the employer;

   (b)       the person’s employment by the employer ends.

   (3)However, if the employer is or was a bankrupt, the claim must be or have been made before the discharge of the employer’s bankruptcy. ...

4. The term “insolvency event”, which is used in paragraph 14(2)(a) above, is defined in section 5 of the FEG Act, which provides that an “insolvency event” occurs to an employer of a person:

   (a)when a liquidator of the employer is appointed (provisionally or otherwise) under the Corporations Act 2001; or

   (b) when the employer becomes a bankrupt under the Bankruptcy Act 1966; or

   (c)if the person is or was employed for a partnership by 2 or more of the partners — at the first time an event described in paragraph (a) or (b) happens, or has happened, to all of the partners by whom the person is or was employed.

   General Principles in Relation to 42B Dismissal Applications

5. The facts in this matter closely resemble the facts in an earlier AAT decision in Paraponiaris and Secretary, Department of Employment [2015] AATA 895. In that decision, Deputy President Alpins provides a very useful summary of the key principles relevant to the Tribunal’s powers under section 42B. In that regard, the Tribunal notes the following:

   23.The exercise of the Tribunal’s power to dismiss proceedings under s 42B, being a power to dismiss a proceeding summarily, “must always be attended with caution” and “is not to be exercised lightly” (Spencer v Commonwealth (2010) 241 CLR 118 at [24], [60]; see also Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 38 ALD 366 at 372), as ordinarily a party ought not be denied the opportunity to put their case and have it heard in the usual way; the expression “no reasonable prospect” prescribes a standard describing “a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to [hearing] in the ordinary way” (Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57], cited with approval in Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46]).

   24.The requirement that the Tribunal be satisfied that the application “has no reasonable prospect of success” necessarily involves a consideration of the merits in the sense that it requires a finding that the application lacks any prospect of success which can properly be said to meet the standard of being a reasonable one (see Duncan v Fayle [2004] FCA 723; (2004) 138 FCR 510 at [22] per French J). The Tribunal’s discretion to dismiss an application for review under s 42B(1) of the AAT Act is enlivened in circumstances where the Tribunal forms the view that the application, upon a practical judgment as to the expected ultimate outcome of the proceeding, suffers from the requisite deficiency described in s 42B(1)(b), which will depend upon the nature of the issues raised by the application, particularly whether the case involves resolution of issues of fact, law or both (Spencer at [25]-[26]).

   25.Where the application for review requires resolution of a real issue or issues of fact (or law and fact, or mixed law and fact), the Tribunal cannot properly be satisfied that the application “has no reasonable prospect of success” for the purposes of s 42(1)(b) – it is not enough that the Tribunal has formed the view that the applicant is unlikely to succeed in respect of such issues (Spencer at [25]-26]; Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] per Gilmour J).

   …

   31.In considering whether it is satisfied that the application has no reasonable prospect of success for the purpose of s 42B(1)(b), the Tribunal should turn its mind to the ways in which it might disturb the decision under review in a manner favourable to the applicant upon exercising its powers under s 43 of the AAT Act, given that it is required to arrive at the correct or preferable decision.

   32.The Tribunal’s power to dismiss an application within the terms of s 42B(1)(b) of the AAT Act is governed by the wider statutory context, particularly the Tribunal’s obligation, in carrying out its functions, to pursue the objective of providing a mechanism of review that has the qualities enumerated in s 2A of the AAT Act. I note that those qualities were recently expanded in the substituted provision contained in the Tribunals Amalgamation Act 2015 (Cth).

   33.The Tribunal’s power to dismiss an application under s 42B(1)(b) reflects the fact that in such circumstances “it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing” (see Re Filsell and Comcare [2009] AATA 90; (2009) 109 ALD 198 at [33]).

   EVIDENCE

6. A clear and useful summary of the evidence before the Tribunal was provided by Mr Lex Holcombe for the Secretary.  The Tribunal thanks Mr Holcombe for his invaluable assistance in that regard and notes the following undisputed facts in evidence in that regard.

7. At the hearing of this dismissal application, Mr Browne did not provide any evidence in addition to that which is summarised below

   Documents required by the Secretary 

8. Mr Browne’s online claim form was received by the Department of Employment (the “Department”) on 19 May 2015 (T7). The claim form was accompanied by two documents:

   ·a copy of Mr Browne’s Certificate of Australian Citizenship (which had not been certified as a true copy of the original document by a person authorised to do so); and

   ·a copy of Mr Browne’s Statement of Academic Record.

9. Mr Browne’s claim was made in a form approved by the Secretary. It therefore satisfied paragraph 14(1)(a) of the FEG Act. However, in order for Mr Browne’s claim to be “effective”, paragraph 14(1)(b) of the FEG Act required that it also be “accompanied by any documents required by the Secretary”.

10. The online form completed by the Applicant (T7) includes question “B5”, which states: “Were you an Australian citizen at the time your employment ended?” In answer to that question, Mr Browne checked the box marked “Yes”. The online claim incorporates an automated “system response” to a positive answer, as follows: “It is mandatory that you provide certified documentary evidence to support your claim.” The “help text” which appears when a claimant clicks on an icon next to question B5 states:

    If you answer 'Yes', acceptable evidence to prove citizenship includes a copy of at least one of the following categories of documents that has been certified as a 'true copy' of the original document by a person authorised to do so:

    Øan Australian passport current at the end of your employment

    Øa full Australian birth certificate

    Øan Australian citizenship certificate issued prior to the end of your employment

    Please note your driver's licence is not evidence to show you are an Australian citizen.

    Information about how to have your documents certified is included in the Help menu.

11. Before a claimant for an advance can proceed to submit an online claim, an “Attachment Reminder” screen is displayed (ST1). Claimants must answer “Yes” or “No” in answer to the statement: “If I have claimed to be an Australian citizen ... at the time my employment ended, I have attached relevant certified supporting documents.” That screen also includes detailed information concerning how to certify copies of original documents. This “Attachment Reminder” screen was displayed to Mr Browne before he submitted his online FEG claim.

12. The Secretary contended before this Tribunal that in order to lodge an effective claim, Mr Browne was required to provide a certified copy of one of the following documents:

    ·an Australian passport current at the end of his employment;

    ·a birth certificate; or,

    ·a certificate of Australian citizenship issued prior to the end of his employment.

13. As noted above, the copy of the Certificate of Australian Citizenship supplied by Mr Browne with his claim form had not been certified as a true copy of the original document by a person authorised to do so (T7, p77).  This means that Mr Browne’s claim was thus not accompanied by a document required by the Secretary.

14. The Tribunal notes that the FEG Act does not require the Secretary to communicate to a claimant that his or her claim is not effective prior to the statutory deadline, or to advise a claimant of how an ineffective claim may be made effective. However, this practice has been adopted by the Department, and a letter was sent to Mr Browne by email on 19 May 2015, the same day his online claim was received, advising him that his claim was not effective because his citizenship documentation had not been certified as required (T9). An employee of the Department also telephoned Mr Browne that day and left a voice message (T17). It is clear on the evidence that the Department did what it could do to assist Mr Browne in relation to understanding what was meant by the term “effective”, and indeed, went beyond what it is required to do.

    Timeframe for making an effective claim

15. Mr Browne stated in his claim form that he was employed by G & G Steelworks Pty Ltd from 18 April 2006 until 17 October 2011. A liquidator was appointed to manage the affairs of that company on 20 May 2014 (T3).

16. The appointment of the liquidator was an “insolvency event” for the purposes of paragraph 14(2)(a) of the FEG Act. As the insolvency event took place after the end of Mr Browne’s employment, subsection 14(2) of the FEG Act required Mr Browne to make an “effective” claim before the end of 12 months after 20 May 2014. That is, Mr Browne was required to lodge an effective claim by no later than 20 May 2015.

17. Mr Browne did lodge a claim before 20 May 2015. This is not disputed.

18. However, subsection 14(1) of the FEG Act makes it clear that a claim will not be “effective” unless it is accompanied by any required documents and is made within the statutory timeframe. The Secretary contended before this Tribunal that while Mr Browne did make a claim within that period, it was not “effective” as it was not accompanied by the required certified documentation to support his claim that he was an Australian citizen at the time his employment ended.

19. Mr Browne did provide a certified copy of his Certificate of Australian Citizenship on 7 June 2015 (T12, p90). The Tribunal notes, however, that this was after 20 May 2015. Mr Browne argued before this Tribunal that the fact the certified copies were ultimately provided means that his claim was “effective”.  The Secretary contended that the fact that the certified copies were provided late means that the claim was ineffective. This is analysed further below.

    decision

1. No real issue of facts arises in relation to this matter. Disagreement is limited solely to the manner in which the FEG Act applies to those facts. The core issue in relation to these facts is whether Mr Browne made an “effective” claim for financial assistance in the form of an advance under the FEG Act.

2. Mr Browne was unrepresented before this Tribunal and did not provide written submissions in relation to the Secretary’s 42B dismissal application. The thrust of his oral evidence, however, can be summarised as follows:

   a)He did file copies of the required documentation by the required date but, it is agreed, the copies provided were not certified copies;

   b)Certified copies were provided to the Department after the required filing date;

   c)The filing, albeit late, of certified copies makes his claim effective for the purposes of the FEG Act;

   d)If the late filing of these documents does not make his claim effective, the Secretary should exercise its discretion and, in essence, override the meaning and effect of the FEG Act.

3. As noted above, subsection 14(1) of the FEG Act makes it clear that a claim will not be effective unless it is accompanied by any required documents and is made within the statutory timeframe. While Mr Browne did make a claim within the effective period, it was not effective legally as it was not accompanied by the required certified documentation to support Mr Browne’s claim that he was an Australian citizen at the time his employment ended.

4. The Tribunal finds that Mr Browne did provide a certified copy of his Certificate of Australian Citizenship on 7 June 2015.  Unfortunately, as this occurred after 20 May 2015, it could not have the effect of rendering his claim effective.  This is the clear effect of the statute, as unfair as that might sometimes seem. 

5. In relation to this issue, the Tribunal is guided by the words of Deputy President Alpins in Paraponiaris (above), in which she writes:

   53.It is necessary to ascertain “the ordinary and grammatical sense of the statutory words” (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at 31 per French CJ; emphasis added). Section 14 is to be read as a whole. The use of tenses in s 14(1) is quite deliberate – the expressions “be in a form approved” and “be accompanied by any documents required” are to be read in the context of the expression “be made” in para (c) of s 14(1) and the temporal requirement in s 14(2) (emphasis added). To be an effective claim, a claim must be made within the prescribed time, in the prescribed form and must be accompanied by the prescribed documents….

   54.I cannot discern any source of a power or discretion, whether express or implied, and whether in the terms of s 14, other provisions of the Act or some other legislation, by which the Secretary might depart from those requirements in the case of a particular claimant.

   55Furthermore, I can see no express or implied power or discretion by which the time limit for the making of a claim prescribed by s 14(2) might be extended and thus give rise to a real issue as to whether an “effective claim” might be said to have been made for the purposes of s 14 in some other way (whether by Mr Paraponiaris’ subsequent correspondence or otherwise), leaving aside the question of whether the application could be said to have a real prospect of success in that regard in any event.

   56.Moreover, the Tribunal’s powers of review under s 43(1) of the AAT Act do not afford any discrete source of power or discretion by which Mr Paraponiaris might somehow be relieved from the consequences of his claim’s failure to satisfy the terms of s 14(1)(b).

6. On the evidence, Mr Browne’s claim was not effective as the required certified documentation was filed late. It is clear that the Act does not permit the Secretary any discretion to extend the time period for making an effective claim. Under paragraph 10(1)(h) of the Act, a person will only be eligible for an advance if the Secretary is satisfied that, in addition to all the other requirements of subsection (1), an effective claim has been made. If the Secretary is not satisfied that the claim is effective in accordance with section 14, the Secretary cannot be satisfied that the person is eligible for an advance.

7. In the circumstances, the Secretary, or the Tribunal standing in the Secretary’s shoes, is simply not empowered to accept a claim for an advance after the expiry of the statutory timeframe, regardless of whether a claimant is able to supply the required documentation after that date or has provided some but not all of the documentation within time. While this might seem inherently unfair, this is what the statute mandates. There is no flexibility in this regard. To again quote Deputy President Alpins, unfortunately for Mr Browne, “the legislative intention evinced by the strict terms of s 14 is directed towards the attainment of a balance between the objects expressed in s 3 of the Act, which are countervailing to the extent that the first favours former employees while the second is directed to allowing the Commonwealth to recover public funds paid out to such employees.”

8. I have also considered whether Mr Browne’s application for review raises any other issue of fact or law beyond those canvassed before the Tribunal which might form the basis of ground a reasonable prospect of success.  No such issue exists.

   conclusion

9. For the above reasons, the Tribunal finds that Mr Browne’s substantive application should be dismissed pursuant to section 42B of the AAT Act as the application for review has no reasonable prospects for success. It would be futile and indeed wasteful for the application to continue as there is nothing the Tribunal can do to assist Mr Browne. In that regard, the dismissal of this application is also consistent with section 2A of the Tribunal’s governing statute, which requires the Tribunal to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

   order

10. Pursuant to section 42B(1) of the Administrative Appeals Tribunal Act1975, the Tribunal dismisses the application.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall.

.................[sgd D Brodie]......................................

Administrative Assistant

Dated 17 December 2015

Date of hearing	2 December 2015
Date of Receipt of Request for Written Reasons	4 December 2015
Applicant	In person
Advocate for the Respondent	Mr L Holcombe
Solicitors for the Respondent	HWL Ebsworth Lawyers