Burgess v Centrelink and Ors - [2006] FMCA 1952

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BURGESS v CENTRELINK & ORS

[2006] FMCA 1952

ADMINISTRATIVE LAW – Appeal from AAT.

Administrative Appeals Tribunal Act 1975, s.44
Federal Court of Australia Act; s.31A
Social Security Act 1991, ss.1061A, 1061EA, 1061ED
Federal Magistrates Court Rules, r.13.10

Boston Commercial Services Proprietary Limited v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352
General Steel Industries Inc v Commissioner for Railways New South Wales (1964) 112 CLR 125
Ibarcena v Secretary, Department of Family and Community Services (2001) 33 AAR 76
Uka v Secretary, Department of Family and Community Services [2003] FCA 1396

Applicant:

DARREN JOHN BURGESS

Respondent:

CENTRELINK & ORS

File Number:

BRG 805 of 2006

Judgment of:

Wilson FM

Hearing date:

18 December 2006

Date of Last Submission:

18 December 2006

Delivered at:

Brisbane

Delivered on:

18 December 2006

REPRESENTATION

Counsel for the Applicant:

N/A

The Applicant in person:

Mr Burgess

Counsel for the Respondent:

N/A

Solicitors for the Respondent:

Australian Government Solicitors

ORDERS

That pursuant to Rule 13.10 of the Federal Magistrates Court Rules, the application filed 10 November 2006 be dismissed.
That the applicant pay the respondent’s costs of and incidental to the application generally including the costs of their own application heard by the Court today.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 805 of 2006

DARREN JOHN BURGESS

Applicant

And

CENTRELINK & ORS

Respondent

REASONS FOR JUDGMENT

On 20 September 2006, the appellant filed, in the Federal Court at Brisbane, three documents: a notice of appeal against a decision of the Administrative Appeals Tribunal given on 6 September 2006, together with an application for extension of time to file and serve the notice of appeal, and an affidavit by the applicant. A further affidavit by the applicant was filed on 5 October 2006. A third affidavit by the applicant was filed on 19 October 2006.
The matter was remitted to this Court by order of Collier J on

23 October 2006. The respondents have appeared and, by application filed 18 December 2006 filed pursuant to directions given by me on

3 November 2006, apply to summarily dismiss the notice of appeal and for ancillary relief, if that course is not acceded to.
The respondents contend that the appeal has no reasonable prospects of success as the notice of appeal does not disclose an error of law in the Tribunal's decision, as required by section 44 Administrative Appeals Tribunal Act 1975. The applicant is self-represented. His documents are difficult to follow. However, it appears from the s.37 documents (the T documents), forming part of the file, that on 26 January 2006, Centrelink decided not to pay a lump sum advance to the applicant amounting to $31,500. The applicant, as I understand his argument, contends that there is no legislative prohibition in the Commonwealth government commuting periodic payments to a lump sum under the Social Security Act 1991. He accepts, however, that there is no provision in the legislation which actually permits that course.
The applicant sought review of the decision of Centrelink of

26 January 2006. On 13 March 2006, the Social Security Appeals Tribunal affirmed the decision under review. The applicant then sought to appeal to the Administrative Appeals Tribunal. On 6 September 2006, Senior Member B.J. McCabe affirmed the decision of the Social Security Appeals Tribunal. It is from that decision that the applicant appeals, or more correctly seeks an extension of time within which to appeal.
It is fundamental on an appeal to this Court under s.44 Administrative Appeals Tribunal Act that a question of law be formulated in the notice of appeal, and be done in such a way as to be comprehensible to the appellate Court. It has previously been held that the requirement that the notice of appeal specify the question of law is one in respect of which the Court requires strict compliance: see Ibarcena v Secretary, Department of Family and Community Services (2001) 33 AAR 76 at 77. Later decisions have held to the same effect.
Given that the applicant is self-represented, one may look a little more favourably at the language used in the documents filed with the Court to ascertain whether any question of law has been formulated. In the present case, as I read the applicant's material, and as the applicant formulated his arguments orally, he essentially contends that the Department, the Social Securities Appeal Tribunal and the Administrative Appeals Tribunal erred in their construction of the Social Security Act 1991 in refusing to permit the commuting of pensions to a lump sum.
If that is the question of law which the applicant seeks this Court to determine, the question then arises as to whether he has any reasonable prospect of success on such an appeal. The respondents to the proposed appeal apply, pursuant to Federal Magistrates Court Rule 13.10 which provides:
“The Court may order that a proceeding be stayed or dismissed generally, or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)    the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)    the proceeding or claim for relief is frivolous or vexatious; or
(c)     the proceeding or claim for relief is an abuse of the process of the Court.”
As I understand it, the respondents apply under sub-paragraph (a). The phrase, "no reasonable prospect of successfully prosecuting the proceeding" also appears in s.31A, Federal Court of Australia Act 1976, and has been recently considered by Rares J in the Federal Court in Boston Commercial Services Proprietary Limited v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352. In that case, his Honour reviewed the authorities dealing with the approach taken in various jurisdictions on similar types of applications. His Honour concluded that a Court must be very cautious not to do a party an injustice by summarily dismissing proceedings where contested evidence might reasonably be believed one way or the other, so as to enable one side or the other to succeed. That is not a matter which arises in the present case. There will be no further evidence on the hearing of the appeal, beyond that contained in the record.
His Honour concluded that s.31A, Federal Court of Australia Act (and a similar interpretation should be given to rule 13.10, Federal Magistrates Court Rules), that no reasonable prospect of successfully prosecuting the proceeding should be given a narrow interpretation. His Honour considered the argument that s.31A was directed to provide a more lenient test than the traditional one enunciated in cases such as General Steel Industries Inc v Commissioner for Railways New South Wales (1964) 112 CLR 125 at 129-30.
His Honour also considered a number of authorities at paragraphs [28] and following of his reasons for judgment. His Honour concluded at paragraph [42] that:
“Properly construed, the test requires a person moving a motion for summary disposal to satisfy the Court that there is no reasonable prospect of the party claiming relief successfully prosecuting the proceeding, or the part of the proceeding in question.”
As I have said, there are no issues of fact which have to be determined in this case. It is one which turns upon the construction of legislation. The relevant legislation is that contained in the Social Security Act 1991. Section 1061A(1) deals with the qualification of a person for an advanced payment of a social security entitlement. Section 1061A(4) provides for exclusions to an entitlement to advance payment. Section 1061EA(1) provides that the Secretary of the Department must determine the application in accordance with the Act.
Therefore, if there is no statutory provision which permits the commutation of a pension to a lump sum, the Department simply cannot allow an application in that regard. Section 1061ED(1) provides that the amount of an advance payment is calculated according to that section, and s.1061ED(2) provides for calculation of the amount of advance payment. Here, the amount in question would be $500.
In Uka v Secretary, Department of Family and Community Services [2003] FCA 1396, Kenny J considered an appeal brought pursuant to section 44(1), Administrative Appeals Tribunal Act, against a decision of the Administrative Appeals Tribunal under the same legislation. In that case, the applicant had sought a further advanced payment, not having repaid an advance already made to him. Kenny J considered the legislative framework referred to above and held that, by virtue of s.1061A(4), the applicant in that case was not qualified for an advance payment. Kenny J held that there was no discretion to make an advanced payment to a person who was not qualified to receive it: see paragraph [10].
In the present case, the Tribunal considered the correct legislation. No error of law is apparent from the reasons of the Tribunal. The dispute was in relation to the amount which could be advanced. The Tribunal member was, in my view, correct in saying that the effect of the legislation is beyond doubt. The Secretary is not authorised to accumulate advances into a lump sum greater than $500. The member correctly held that the Secretary had properly refused Mr Burgess' application. No error of law is demonstrated, either from the reasons for decision or from the applicant's own material.
In those circumstances, I am satisfied that the applicant has no reasonable prospect of successfully prosecuting an appeal in this case. Accordingly, I accede to the application of the respondents to dismiss the appeal, pursuant to rule 13.10 of the Federal Magistrates Court Rules. It is unnecessary, in those circumstances, to deal with the alternative submission regarding the removal of parties.
The respondents seek an order for their costs. This Court has jurisdiction to award such costs. Ordinarily, a Court is reluctant to order costs against a self-represented person who is seeking to exercise his or her rights to challenge decisions of government, particularly where the matter is being litigated for the first time before the Court. However, in this case, the applicant has had a review of the initial decision by the Department itself, and has brought an appeal to the Social Security Appeals Tribunal and to the Administrative Appeals Tribunal. He has been consistently unsuccessful.
In my view, a further appeal to this Court, having been demonstrated to have no reasonable prospect of success, was unwarranted. In those circumstances, I order the applicant to pay the respondents' costs of and incidental to the application, generally, including the costs of their own application heard by the Court today.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Wilson FM

Associate: Lynnette Chin

Date: 5 February 2007