Burgin v Baker

[2002] FCA 1301

FEDERAL COURT OF AUSTRALIA

Burgin v Baker [2002] FCA 1301

MAX ARNOLD BURGIN v TERENCE BAKER OF CENTRELINK
V 496 of 2002

GRAY J
23 SEPTEMBER 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 496 of 2002

BETWEEN:	MAX ARNOLD BURGIN APPLICANT
AND:	TERENCE BAKER OF CENTRELINK RESPONDENT
JUDGE:	GRAY J
DATE OF ORDER:	23 SEPTEMBER 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application for an enlargement of time to file a notice of appeal is refused.

2.        There be no order as to costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 496 of 2002

BETWEEN:	MAX ARNOLD BURGIN APPLICANT
AND:	TERENCE BAKER OF CENTRELINK RESPONDENT

JUDGE:	GRAY J
DATE:	23 SEPTEMBER 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. In this proceeding, the applicant attempts to appeal from a decision of the Administrative Appeals Tribunal (“the AAT”). The documents that he has filed were filed outside the time following upon the decision of the AAT, specified in s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). The decision of the AAT was given on 21 June 2001. The applicant’s documents were filed on 1 August 2002.

2. The first of those documents is in the form of a notice of appeal.  It reads as follows:

   “1.      TAKE NOTICE that the applicant appeals from the decision of the Administrative Appeals Tribunal constituted by V2002/126 given on 21 June 2002 at Melbourne, whereby the tribunal decided to uphold Centrelink's decision even though that verdict was limited, and discriminatory having decided that much of the material tabled by Centrelink was ‘irrelevant’

   2.        THE QUESTIONS OF LAW raised on this appeal are:  It was an abuse of the entire Law that AAT functions by bias toward the Respondent, and discrimination in the material it directed to be tabled.

   3.        ORDERS SOUGHT  A re-run, with a competent person, of the entire process

   4.        GROUNDS  where the problems of bias, and discrimination are not evident, so that fairnes [sic] is seen to be done.  And all material tabled is taken into account in the conclusion and verdict”.

3. The second document filed was an application for an extension of time in which to file and serve a notice of appeal.  The third document is an affidavit in support of that application.  I read into my reasons for judgment that affidavit.  In it the applicant says:

   “1.      That since it was not possibe [sic] to apply within the specified time, due to being is [sic] Respite for most of the time, and given the fact that I can’t write without the computer.  However I did complain to the CEO of AAT, listing all details of the complaint, within the limited time. 

   2.In his late reply the President of AAT, which did not allow for an
   appeal to the Federal Court in time, said he could not arrange for a re-run of proceedings without an order to that effect, from the Federal Court. 

   3.The reason for this writing is to apply for an extension of time to allow
   for just such an order, to allow for proceedings to take place where the problems listed will not be evident.

   4.It is not good enough simply to deny the problems, as the President has done, without any qualification, or quoting legislation that allows them to exist as listed.

   5.There is a need for the charges, as listed, to be heard so the matter can
   be cleared up.  The President of AAT is not willing, or able, to exercise his authority, to bring this about.

   6.The PM made a promise, on national TV, and both the Tribunal, and the Respondent claimed not to have any recolection [sic] of it - very convenient!  It can easily be verified, and proved.  If it affected them, they would have no trouble remembering.”

4. Those documents have not been served on the proposed respondent, who is named as Terence Baker of Centrelink.  The applicant has appeared in person today.  It is apparent from what he said to the Court that his complaint with respect to the AAT is as to the conduct of its hearing.  He complains that it ordered and received a large number of documents from Centrelink but did not have regard to all of them.  This the applicant regards as bias and discrimination. 

5. In the normal run of cases before the AAT, it receives many documents from decision-makers. By s 37(1)(b) of the AAT Act, a person who has made a decision that is the subject of an application for review by the AAT is obliged to lodge with the AAT copies of every document or part of a document in the decision-maker’s possession or under his or her control, considered by the decision-maker to be relevant to the review of the decision by the AAT. Because what the AAT does is to conduct a complete re-hearing of the application before it, it does not always have regard to all of those documents. The fact that it does not have regard to documents does not mean that the AAT acts with bias or discriminates against any party to a proceeding before it.

6. The AAT has forwarded to this Court, as it is obliged to do, the documents that were before it.  They include a decision of the Social Security Appeals Tribunal (“the SSAT”).  The matter before the SSAT concerned the issue of the amount of the aged savings bonus payable to the applicant.  I have asked the applicant whether he is able to say that the AAT made some error in the application of the Social Security Act 1991 (Cth) (“the Social Security Act”). He has told me that he is not able to say that there was some error in the application of that Act.

7. The point that the applicant seeks to make is that, as he puts it, the Prime Minister promised that everyone over sixty would receive a bonus of $1,000. The applicant did not receive a bonus in that amount. His case seems to have been that Centrelink officers, the SSAT and the AAT were all bound to give effect to the promise of the Prime Minister. That case cannot be sustained. Those decision-makers were all bound to give effect to the Social Security Act in whatever form it stood. They could not depart from the Act to give effect to some promise or statement of the Prime Minister or any other minister.

8. Accordingly, it seems to me that the applicant fails to make out any prospect of success on this appeal.  Given his disability, which is obvious from his physical appearance as well as being referred to in his affidavit, he may well have explained the delay in commencing the proceeding.  A simple explanation of the delay, however, is not sufficient to justify the Court’s order to enlarge the time to commence the proceeding if it would be futile to do so.  In my view it would be futile to grant the orders sought by the applicant.  Accordingly, the application for an enlargement of time will be refused and the applicant will be unable to proceed in this Court. 

9. The order of the Court is that the application for an enlargement of time to file a notice of appeal is refused.  I make no order as to costs because the absence of service on the respondent has meant that there is no possibility of the respondent incurring costs of the proceeding. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated:            

Counsel for the Applicant:	The applicant appeared in person
Date of Hearing:	23 September 2002
Date of Judgment:	23 September 2002