Busby, B. v The Regional Manager, Department of Social Security

[1987] FCA 215

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NOT FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT

OF AUSTRALIA 1

WESTERN AUSTRALIA 1

DISTRICT REGISTRY 1

GENERAL DIVISION 1 NO. WAG 39 Of 1987

B E T W E E N : BUSBY BRET

Applicant

and

THE REGIONAL MANAGER, DEPARTMENT	OF
SOCIAL SECURITY

Respondent

CORAM:

FRENCH J.

16 APRIL 1987

EX TEMPORE XEASONS FOR JUDGMENT

The appllcant in this case has instituted proceedlngs

under the Admlnlstratlve Declslons (Judlclal Review) Act (1977) seeking review of a decislon of the respondent to cancel his

unemployment benefit In accordance wlth advice to the applicant

from the respondent by a letter dated 26 March 1987.

Various grounds for eview are set out in the

application reflecting grounds to be found in s.5 of the Judicial

Review Act. Now is not the time or place to consider the merits

of those partlcular grounds. Today the applicant, in person, as a

matter of urgency, and I have permitted him to do so on the basis

of a handwritten motlon,	seeks interlocutory
hearing of his substantive	applicatlon.

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2.

The terms of the orders are as Eol1ows:-

1. The Department of Social Securlty pay the appllcant

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the sum of $280.80 as special benefit being the amount whlch would have been payable to the applicant had hls unemployment benefit not been

cancelled for the perlod 12 :larch 1987 to 29 March

1987 inclusive;

2. The Department of Soclal Security pay the applicant special benef lt at he appllcable rate of

unemployment benefit of $99.20 per week, plus

$10.00 per week rent assistance from the date

currently paid to, in the new unemployment beneflt clalm, 10 Aprll 1987, to the date of settlement o€ thls matter;

3 . The Department of Social Security refrain from reducing, postponlng or cancelling the payment of the said beneflt until, at the earllest, the date

of settlement of thls matter.

4. The Department of Soclal Security and its agents

refraln from contacting the appllcant's landlord or

any other of the appllcant's creditors.

In the alternatlve he clalms orders that:-

1. The Department of Social Security pay the applicant the sum of $218.40 as special benefit, being the amount which would have been payable to the appllcant had his unemployment benefit not been

cancelled for the period 12 March 1987 to 25 March 1987 inclusive, being the period of coverage of the "applicatlon for continuatlon of unemployment beneflt" from which was the last form of that

claim:

2. The Department of Social Securlty pay the applicant special beneflt at the appllcable rate of unemployment benefit of $99.20 per week plus $10.00 per week rent assistance to be paid fortnightly

from the dates whlch would have been applicable had the applicant's unemployment benefit not been cancelled. Thus, by direct credit o the applicant's bank account, the next payment would be due on 23 April 1987 to the date of settlement of this matter.

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3.	As	f o r	p a r t	1;
4 .	As	f o r	p a r t	1;

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I 5. The paymen t fo r sec t ion 1 o f p a r t 1 or p a r t 2 be

m a d e b y c o u n t e r c h e q u e w i t h i n 2 4 h o u r s o f t h e

j m a k l n g o f t h e o r d e r .

T h e e v l d e n c e e s t a b l l s h e s t h a t t h e a p p l i c a n t , who was on

i	u n e m p l o y m e n t	b e n e f l t ,	h a d	t h e	b e n e f l t	c a n c e l l e d	w i t h	e f f e c t	f r o m
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t h e w e e k e n d l n g 1 3 M a r c h 1 9 8 7 . He r e c e i v e d n o p a y m e n t o f a n y

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b e n e f l t f o r t h e p e c l o d f r o m 1 3 March u n t i l 30 March.

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I	i	S u b s e q u e n t l y ,	h o w e v e r ,	r	h e	c e l v e d	s p e c i a l	b e n e f l t
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b e c a u s e of h a r d s h i p a n d h a s b e e n p a i d , o n a n e w c la im f o r

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I u n e m p l o y m e n t b e n e f i t , f o r t h e p e r l o d f r o m 4 March t o 10 A p r i l .

i	Unemployment	b e n e f i t	1s	p a l d	2	w e e k s	i n a r r e a r s .	H e	is	due	t o
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I	l o d g e	a	c o n t l n u a t l o n	f o r m	known	a s a	form	1 9 B on	29	A p r i l ,	a n d
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! !	a c c o r d i n g	t o	t h e	v i d e n c e	o f	t h e	o f f i c e r	i n	c h a r g e	o f	t h e
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u n e m p l o y m e n t b e n e f l t a n d s i c k n e s s b e n e f l t sect ion of t h e

D e p a r t m e n t o f S o c i a l S e c u r i t y , a s s u m i n g t h a t h e c o m p l i e s w i t h t h e

r e q u i r e m e n t s o f s . 1 0 7 t h a t u n e m p l o y m e n t b e n e f l t w i l l b e c o n t i n u e d .

I n respect o f t h e p e r i o d o f c a n c e l l e d b e n e f l t , t h a t is

t o s a y t h e p e r l o d c o v e r e d b y 1 3 March t o 30 March during which he

r e c e i v e d n o p a y m e n t h e h a s i n s t l t u t e d a p p e a l p r o c e e d i n g s t h r o u g h

t h e S o c i a l S e c u r l t y A p p e a l s T r i b u n a l , a n d t h a t t r i b u n a l w h i c h h a s

n o f i n a l d e t e r m l n a t i v e b u t a recommendatory power had i ts h e a r i n g

l a s t T u e s d a y . N o d e c i s i o n h a s y e t b e e n g l v e n i n r e l a t i o n t o t h a t

a p p e a l .

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4 .

I note that an appeal on the merlts of the cancellation

in respect of that perlod would ultimately lie to the

Administratlve Appeals Tribunal.

In support of hls application for interlocutory relief the applicant refers to the hardship under which he suffers as a result of the cancellatlon of the unemployment benefit durlng the 2 week period already referred to and the fact he was, in any event, In an extremely difficult financial sltuation.

These matters are set out at some length in hls

affldavlt ~n support of the substantive application which was

sworn on 6 April 1987. That was supplemented by oral evidence

given by hlm in support of the lnterlocutory relief.

Generally, he lndlcates, as a result of his financial

circumstances, that he faces the poss~billty of eviction, the

possiblllty that his electrical power supply will be disconnected.

He sayts he has had a seriously reduced food Intake and as a

result has lost weight and suffered other physical side effects.

The power of the Court to grant lnterlocutory relief

pending the hearing of a substantlve application under the

Administrative Decisions (Judicial Review)	Act has two sources.
The first is s.15 of the Act whlch provides:-

15.(1) The making of an application to the Court under

sectlon 5 in relation to a declsion does not affect

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the operatlon of the declslon or prevent the taking

of action to implement the declsion but -

(a)	the Court or a Judge may, by order, on such
conditlons (if any) as it or he thinks flt,

suspend the operation of the decision; and

(b) the Court or a Judge may order, on such

conditions ( i f any) as It or he thinks flt, a

stay of all	or any proceedings under the
decision.

( 2 ) The Court or a Judge may make an order under

sub-section ( 1 ) of its or his own motion or on the application of the person who made the application under sectlon 5."

That sectlon is inapplicable in the present case as the

interlocutory ordels sought do not involve the suspension of the

operatlon of the decision to cancel unemployment benefit which is

I the sub~ect of the appllcation for review.

Notwithstanding that, the Court has power under s.23 of

the Federal Court of Australia Act 1976 to make interlocutory

orders. That section provides:-

"23. The Court has power, in relation to matters in

which it has jurisdiction, to make orders of such

klnds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thlnks appropriate."

Generally speaking the test for the grant of

interlocutory rellef under s.23 ~n a case where s.15 is not applicable requires the applicant to establish that there is a

I	se r ious question to be tried and that the balance of convenience
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favours the grant of the lnterlocutory relief. In this case the

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fo rm of orders t h a t a r e s o u g h t 1s mandatory rather t h a n

r e s t r i c t i v e . I t is n o t a form of order w h l c h i n t h e l e g a l sense

would m a i n t a i n t h e s t a t u s quo.

I e m p h a s i s e " t h e l e g a l s e n s e " , b e c a u s e I have no doubt

t h a t t h e a p p l l c a n t w o u l d s a y t h a t f r o m h i s p o i n t o f v i e w i t would

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m e r e l y r e i n s t a t e h i m t o h l s e n t l t l e m e n t a n d p r e v e n t t h e c o n t l n u e d

s u f f e r i n g o n h i s p a r t o f h a r d s h i p f l o w i n g f r o m t h a t c a n c e l l a t i o n .

Hav ing r ega rd t o t h e f a c t t h a t t h e a p p l l c a n t ' s

u n e m p l o y m e n t b e n e f l t h a s now b e e n r e i n s t a t e d a l b e i t b y way o f a

f r e s h c l a m and t h a t h e 1s c o n t i n u i n g I n r e c e i p t t h a t o f

u n e m p l o y m e n t b e n e f l t , t h a t a p p e a l t h e r I n s p e c t t h e o f

c a n c e l l a t i o n d u r i n g t h e p e r i o d f r o m 13 March t o 30 March is under

a c t i v e c o n s i d e r a t i m by t h e S o c i a l S e c u r i t y A p p e a l s T r i b u n a l , t h a t

o n t h e material p r e s e n t l y b e f o r e t h e c o u r t a n d o n t h e b a s i s o f t h e

.- -_ s u b m i s s l o n s made t o t h e c o u r t , t h e s i g n i f i c a n t h a r d s h i p t h a t h e

h a s	s u f f e r e d	c a n n o t	b e	a t t r i b u t e d	s o l e l y	or	e v e n ,	I	wou ld	t h ink ,
-. . =-..=-:-	-_

s u b s t a n t i a l l y t o t h e p e r i o d o f c a n c e l l a t i o n I am, a s a matter of

d i s c r e t l o n , n o t p r e p a r e d t o make t h e o r d e r s s o u g h t .

I n f a c t I h a v e s e r i o u s r e s e r v a t i o n s a s t o whe the r I

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- -wou ld have t he power t o make t h o s e o r d e r s f o r t h e y , i n e f f e c t ,

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- - . - - - . s eek .... . .f-rom t h e c o u r t a d i r e c t i o n .. t o t h e D e p a r t m e n t o f Soc ia l

- - . S e c u r i t y or t o t h e r l e v a n t o f f i c e r o f i t , t o exercise a

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. discre t ion i n a p a r t i c u l a r way by payment of a b e n e f i t .

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Now t h e whole polnt OE the Judicial Review Act is to ensure that the process of decision making follows the appropriate

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rules of law and procedure.

Generally speaking, the Court does not exercise a

I substitutive decision making role. Rather, the usual remedy that

is granted involves the r mission of a decision for

reconsideration by the decislon maker. It is unusual for the

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court to make a mandatory order substituting its own view of the correct decision for that of a decision maker as a form of final relief.

A fortior1 it would be extraordinary that the Court should on an interlocutory basis make a substitutive decision

requiring the payment of a particular benefit to	the applicant
pending the hearing of the substantive application.

The practical consequences of such an order in this case

would be effectively to dispose of the substantive application.

For those reasons I will dismiss the application for

interlocutory relief.

I hereby certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment

herein of his Honour Mr Justice French.

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Associate:

Date :