Dauguet v Centrelink
[2015] FCA 395
•28 April 2015
FEDERAL COURT OF AUSTRALIA
Dauguet v Centrelink [2015] FCA 395
Citation: Dauguet v Centrelink [2015] FCA 395 Parties: ALAIN DAUGUET v CENTRELINK File number: VID 655 of 2014 Judge: MORTIMER J Date of judgment: 28 April 2015 Catchwords: PRACTICE AND PROCEDURE – discretion under r 5.23 of the Federal Court Rules 2011 (Cth) to dismiss application – consideration of relevant factors including non-compliance with directions, failure to prosecute claim and availability of review by Social Security Appeals Tribunal and Administrative Appeals Tribunal
ADMINISTRATIVE LAW – discretion under s 10(2)(b)(ii) of Administrative Decisions (Judicial Review) Act 1977 (Cth) to refuse application – whether to exercise discretion – availability of review by Social Security Appeals Tribunal and Administrative Appeals Tribunal
PRACTICE AND PROCEDURE – application for joinder under rr 9.03 and 9.05 of the Federal Court Rules 2011 (Cth) – consideration of relevant factors – personal or family relationship with party not sufficient to warrant joinder
PRACTICE AND PROCEDURE – discretion to allow representation by unqualified persons – consideration of relevant factors – unqualified persons not subject to professional duties owed by lawyers to clients, their opponents and the court – contribution of those duties to administration of justice according to law
Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 10(2)(b)(ii), 12
Federal Court of Australia Act 1976 (Cth) ss 23, 37M, 37P(5), 37P(6)
Social Security (Administration) Act 1999 (Cth) Pt 4 Divs 2, 3, 4 and 5; ss 129, 135, 142, 149, 179, 181
Federal Court Rules 2011 (Cth) rr 4.12, 5.22, 5.23, 9.03, 9.05, 9.63Cases cited: Collier v Hicks (1831) 2 B. & Ad. 663
Cristovao v Registrar Caporale [2012] FCA 1329
Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 230
Friends of Hinchinbrook Society Inc v Minister for Environment (No 1) (1996) 69 FCR 1
Jarrett v Secretary, Department of Families, Community Services and Indigenous Affairs [2008] FCA 1043
Lawson v NSW Minister for Land & Water Conservation [2007] FCA 8
McAlister v New South Wales (2014) 223 FCR 1; [2014] FCA 702
McGowan v Migration Agents Registration Authority (2003) 129 FCR 118; [2003] FCA 482
McKenzie v McKenzie [1971] P. 33
McKenzie v South Australia (2005) 214 ALR 214; [2005] FCA 22
Nepal v Minister for Immigration and Border Protection [2015] FCA 366Dates of hearing: 2 March 2015, 8 April 2015 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 174 On the First Motion: Counsel for the Applicant: The Applicant did not appear Solicitor for the Respondent: Mr K Maat of Australian Government Solicitor On the Second Motion: Counsel for the Applicant: The Applicant appeared in person Solicitor for the Respondent: Mr K Maat of Australian Government Solicitor Counsel for Ms Peric: Ms Peric appeared in person after withdrawing her solicitor’s instructions Solicitor for Ms Peric: Mr S Davison of Hughes Watson Marks Kennedy (instructions withdrawn in course of hearing)
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 655 of 2014
BETWEEN: ALAIN DAUGUET
ApplicantAND: CENTRELINK
Respondent
JUDGE:
MORTIMER J
DATE OF ORDER:
28 APRIL 2015
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The interlocutory application made by Ms Natasha Peric and dated 2 April 2015 be dismissed.
2.Ms Natasha Peric pay the respondent’s costs of and incidental to the interlocutory application made by her.
3.The proceeding be dismissed pursuant to r 5.23 of the Federal Court Rules 2011 (Cth).
4.If the respondent wishes to apply for Ms Natasha Peric to be ordered to pay the costs of this proceeding, it should make such application, together with any evidence and submissions in support of that application, on or before 12 May 2015.
5.If an application is made pursuant to paragraph 4 of these orders, the applicant and Ms Natasha Peric have liberty to file and serve any written submissions they wish to make in opposition to that application on or before 26 May 2015.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 655 of 2014
BETWEEN: ALAIN DAUGUET
ApplicantAND: CENTRELINK
Respondent
JUDGE:
MORTIMER J
DATE:
28 APRIL 2015
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
INTRODUCTION AND SUMMARY
This is an application expressed as made under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act) for relief against an officer or officers of Centrelink. The applicant, who is self-represented, has made a variety of allegations and claims. His principal claim seeks reinstatement of his Newstart allowance, which was suspended on or about 8 July 2014 and subsequently cancelled. Despite the best efforts of the Court and the respondent, he has not sought to take the steps necessary for the Court to determine the substance of his application. Accordingly for the reasons set out below, there will be orders under r 5.23(1) of the Federal Court Rules 2011 (Cth) dismissing the proceeding.
The applicant’s domestic partner, Ms Natasha Peric, belatedly filed an application to be joined as a party to this proceeding. That application will also be dismissed.
NATURE OF THE APPLICANT’S COMPLAINTS AND DOCUMENTS FILED
The applicant is a 49 year old man. The evidence discloses that he first came to Australia in 1989. The evidence is that his preferred language is French, but the evidence does not reveal anything further about his nationality.
The applicant has always attended court with his domestic partner, Ms Peric. There is no evidence that he and Ms Peric are married, but there is evidence they are domestic partners, and that they have at least three children in their teens and early twenties.
In his originating application, the applicant identifies the decision he wishes to have reviewed as the decision by Centrelink to “stop my payment. I appeal on the 8 October 2014 my payment was restored on 10 October 2014. I receive only $430 only part payment then they stop payment on the 13 October 2014”. He states that he seeks orders:
1. to have my payment restored under Administrative decisions (Judicial review) Act 1977 – Section 5
2.To seek an order to have my appeal back on record After it was deleted by the managers at Centrelink.
The application alleges there has been “a breach of natural justice in connection with the making of the decision”, echoing the terms of s 5(1)(a) of the AD(JR) Act.
On and since commencing the proceeding, the applicant has filed two affidavits purported to be made by him and an interlocutory application. I say “purported to be made by him” because, as I discuss below, an available inference is that the statements in the affidavits are in reality those of Ms Peric. That inference could be drawn from what was said by the applicant at the directions hearing, from the way he and Ms Peric interacted, and from the way Ms Peric interacted with my chambers and with staff in the Victorian Registry. That inference is available, as I say, but I propose to give him the benefit of the doubt and proceed on the basis that the statements in those two affidavits are those of the applicant himself, albeit no doubt with Ms Peric substantially assisting him.
In relation to some other documents which are now in evidence, and purport to be written by Mr Dauguet, the inference that in reality Ms Peric wrote them is stronger. As I set out at [96] below, I draw that inference.
The two affidavits filed by the applicant consisted of a series of allegations about the way Centrelink had dealt with the applicant and his claims to be entitled to a range of payments under the Social Security Act 1991 (Cth), principally payment of Newstart allowance, which is the payment the applicant alleges in the originating application was “stopped” in October 2014. The affidavits did not include or attach any documentary evidence in support of his allegations regarding the termination of the applicant’s Newstart allowance.
On 3 November 2014 the applicant filed an affidavit in support, with his originating application. The affidavit was signed by the applicant but did not indicate whether it had been sworn or affirmed. In the body of the affidavit were written the words “please refer to Attachment A”. Annexed to the affidavit and marked “A” in handwriting is a letter dated 29 October 2014 addressed to the Federal Court, and signed by the applicant. In the letter, the applicant expands on the allegations made in the originating application, making it clear that the payment which was “stopped” was a Newstart allowance. The letter refers to no other payments, but does set out medical conditions the applicant claims to have. The letter also asserts the applicant has “no capacity to work”. The letter records two reasons given to the applicant by Centrelink about why his Newstart allowance was suspended: first, that he had capacity to work and secondly a failure to attend his employment services assessments.
In the letter the applicant asserts that on 8 October 2014 he lodged an appeal against the suspension decision. The applicant alleges officers of Centrelink interfered with his appeal because it is recorded to have been lodged on 14 October 2014.
The applicant states that his payment was briefly restored on 10 October 2014 and he received a payment of $430 deposited into his bank account. More recent evidence suggests the money was deposited into Ms Peric’s bank account and I deal with that issue below. The applicant alleges that he has not received a payment since 10 October 2014, despite promises being made to his wife by an officer of Centrelink that if a telephone call was made to the Centrelink participation team, then his outstanding payments would be paid to him on 13 October 2014.
The applicant claims in the letter he is unable to work due to a permanent back condition, which he has suffered for seven years. He claims to take painkillers on a daily basis to alleviate the condition. The applicant contends that since 2008 he has submitted medical certificates to Centrelink.
The 29 October 2014 letter also states that the applicant made a complaint to the Commonwealth Ombudsman in June 2014 and after that complaint he was “restricted” from attending Centrelink offices. Again, more recent evidence suggests it was in fact Ms Peric who was made subject to these restrictions. He also alleges Centrelink officers have interfered with his records including with the appeal he lodged on 8 October 2014. The applicant also alleges Ms Peric’s “payment” (it is unclear to what this refers) is regularly delayed following the complaint he made to the Commonwealth Ombudsman.
On 9 December 2014 the applicant filed an interlocutory application. The orders sought in the interlocutory application were:
1. To seek an order for payment pending review.
2.To seek an urgent injunction against Centrelink based on falsify records at Centrelink.
On 9 December 2014 the applicant filed a further affidavit in support of his interlocutory application. Again, the affidavit is signed but does not indicate whether it is affirmed or sworn. Annexed to the affidavit was a further typewritten statement signed by the applicant on 8 December 2014. As I have noted at [7] above, I proceed on the basis this further typewritten statement was made by the applicant and not Ms Peric, although I harbour significant doubt about that. In this further statement, the applicant makes allegations against a Centrelink Complaints Manager, asserting that she “fraudulently cancelled” his Newstart payment and deliberately falsified his Centrelink records, including in relation to his medical records held by Centrelink. He also alleges she had wrongly referred his name to a debt collecting agency. The applicant asserts that the Centrelink officer notified the applicant of the cancellation of his Newstart allowance and the carer’s allowance he received on behalf of his son. There is also reference to an appeal lodged on 30 September 2014, which appears to relate to the carer’s allowance. More recent evidence demonstrates this is, in fact, an allowance claimed to be payable to Ms Peric. The applicant refers to a letter from the Commonwealth Ombudsman of 19 November 2014 but did not attach or exhibit that letter.
The applicant has not filed any material with the Court since the filing of the interlocutory application and affidavit in support of the application on 9 December 2014. Ms Peric has however filed an affidavit, and the applicant has sought to rely on that affidavit in relation to his own claims.
The following summary of events is based on the transcripts of directions hearings and the Court’s records, including those kept in the Victorian Registry. It is not an exhaustive record of each and every communication, of which there have been a great deal. Where I refer to communications to and from chambers, those communications were copied to all parties and the substance of any calls made to or from my chambers was relayed by email to the parties. The necessity to communicate in this way to have the case managed in anything approaching a fair and efficient manner highlights one of the many unsatisfactory aspects of Mr Dauguet not actively conducting his own case, nor being legally represented, nor providing an email or facsimile contact, and only providing Ms Peric’s telephone number.
THE FIRST DIRECTIONS HEARING
The proceeding was listed for a first directions hearing on 16 December 2014, shortly after the interlocutory application was filed. The applicant appeared, and was accompanied by Ms Peric. The respondent appeared through a legal representative. I note the respondent is, and has remained, identified in the application and documents as “Centrelink”. In proceedings such as this, the appropriate respondent is usually seen to be the Secretary to the Department of Human Services. No application has been made by the respondent to have the respondent differently identified and I do not understand the respondent to have taken any point about any misnomer.
Ms Peric sought to conduct the directions hearing on behalf of the applicant. Ms Peric also claimed that she was “the one who actually deals with all his Centrelink issues”.
Ms Peric was told that course of action would not be acceptable unless the applicant was incapable of conducting the directions hearing on his own behalf. The operation of r 9.63 of the Rules relating to the appointment of a litigation representative was explained to the applicant, and to her. Both Ms Peric and the applicant made it clear he did not have a disability of a kind that meant he could not understand the proceeding or conduct it himself.
Indeed in my opinion, when Ms Peric was ordered to be quiet, Mr Dauguet was responsive to my questions and able to put his position about his complaints.
HER HONOUR: Those are the processes in this court, Ms Peric, and you will sit there and you will be quiet until you are spoken to. All right?
MS PERIC: Yes, your Honour.
HER HONOUR: Thank you.
MS PERIC: But I just find it very hard - - -
HER HONOUR: Thank you. Now, Mr Dauguet. This is your case. You have to talk to me, all right? If there is a problem with that, you need to get a doctor to give some evidence. But today I think you can talk to me.
MR DAUGUET: Yes. But I got evidence from the doctor, your Honour.
HER HONOUR: All right. I just want you to talk to me, and - - -
MS PERIC: Yes. Here is a – this letter - - -
HER HONOUR: - - - I want, at the moment – Mr Dauguet, listen to me, please.
MR DAUGUET: Yes.
HER HONOUR: At the moment, I am asking you if you can come next Tuesday to a case – a conference here. A meeting at 10.30. Can you come?
MR DAUGUET: Yes, your Honour. I can.
HER HONOUR: All right. At that meeting, the registrar will talk to you, and talk to Ms Briffa, about your case and what can be worked out.
MR DAUGUET: Yes.
HER HONOUR: At the – do you understand that?
MR DAUGUET: Yes, your Honour, but I would like to show the court that I got the medical certificate, but they ..... I don’t know why. It’s against the law, your Honour, because I got it – the doctor has told me to come to the court.As I set out in more detail below, the medical certificate to which the applicant referred is a medical certificate that he, and Ms Peric on his behalf, sought to use with Centrelink to challenge the decision to cancel the applicant’s Newstart allowance.
In my opinion, whatever the dynamics of his relationship with Ms Peric, there was no obvious inability on Mr Dauguet’s part to represent himself at this directions hearing, nor in this proceeding. Nor did Mr Dauguet maintain he had any difficulty expressing himself. On being asked if he required a French interpreter, when he explained English was not his first language, the applicant said:
No, I don’t need an interpreter, because I speak – I understand.
There was some mention by both Ms Peric and Mr Dauguet at the directions hearing of the amount of medication Mr Dauguet was taking. I again made it clear to Ms Peric and to Mr Dauguet that if Mr Dauguet believed Ms Peric should act on his behalf because he was not capable of representing himself, then there was a process to be followed under r 9.63 of the Rules, including the filing of evidence to demonstrate that Mr Dauguet had a disability and needed a litigation representative. No such application has been made, despite the Registry providing information and assistance to Mr Dauguet and Ms Peric on this matter.
At the directions hearing, as well as being informed about the process for appointment of a litigation representative, Mr Dauguet was also informed about the possibility of free legal assistance, which was used by me as a shorthand reference to a referral under r 4.12 of the Rules for legal representation.
On 18 February 2015 a form titled “Statement of Financial Position of Individual in relation to Legal Assistance under Pro Bono Scheme” was sent to Mr Dauguet, so that in accordance with r 4.12(2)(a) his inability to pay for legal representation could be assessed, prior to the making of any such referral. That form has not been completed and returned to the Court. It is one of many omissions in this proceeding by Mr Dauguet which have contributed to his complaints not being progressed.
As best I was able, I understood from Mr Dauguet that he was most concerned with having his Newstart allowance restored pending the outcome of his application to the Court, because of the financial hardship he said he was suffering.
The applicant had taken some time to serve the respondent with the originating process and accompanying documents. The respondent’s legal representative informed the Court that all of the documents filed with the Court had been served on the respondent on 10 December 2014, over five weeks after the applicant’s originating application was filed with the Court. The applicant did not file an affidavit of service despite being requested by the Registry to do so.
Nevertheless, what was clear at the directions hearing was that the respondent accepted the decision about suspension and cancellation of the applicant’s Newstart allowance was reviewable on its merits, by the Social Security Appeals Tribunal (SSAT) and then again by the Administrative Appeals Tribunal (AAT). Mr Dauguet and Ms Peric were informed of this at the directions hearing. The advantages of seeking merits review were explained to both Mr Dauguet and Ms Peric. Ms Peric, still insisting over the Court’s directions on speaking for the applicant, responded:
Your Honour, I actually rang them and they said I can’t do it, I have to go through the Federal Court because you have the jurisdiction to review the decision.
The respondent’s legal representative made it clear to the applicant and to Ms Peric this was not at all accurate. Its inaccuracy is confirmed by more recent evidence which demonstrates ongoing refusal by both Mr Dauguet and Ms Peric to avail themselves of their merits review options.
At the directions hearing no account was available of the factual background that led to the cancellation of the applicant’s Newstart allowance, nor of the chain of events that the applicant claimed occurred following his appeals from the suspension and cancellation.
Additionally, a combination of the inadequate material before the Court, the lack of any factual or legal framework, the interruptions from Ms Peric, and the delay on the part of the applicant in serving the documents on the respondent meant there was no proper basis on which to consider the injunctive relief sought by the applicant, even if I were to have assumed in the applicant’s favour such relief (that is, ordering the respondent to recommence Newstart payments to the applicant) was within the power of the Court to order under the AD(JR) Act or under the Federal Court of Australia Act 1976 (Cth).
Instead, in an attempt to assist the parties to resolve the applicant’s complaints at a substantive level and as cost-effectively as possible, I decided to refer the parties to an expedited case management conference with a Registrar of the Court. The Registrar would be able to conduct confidential discussions with each party and attempt to resolve the proceeding, as well as determine, on the basis of those discussions, what the best way forward might be in terms of case management if the proceeding were to continue.
A direction was given to the parties to attend a case management conference with a Registrar at 10.30 am on Tuesday, 23 December 2014. The applicant, and Ms Peric, were informed that if the applicant still wished to press his interlocutory application following the case management conference, the application would be listed for hearing in the new year, and that no orders could be made before the end of the year for the future conduct of the proceeding unless the parties were able to reach a consent position on the form of the orders by the following week.
I encouraged the respondent to provide whatever assistance it could at the case management conference with the Registrar, and in the short term, to see whether the respondent was able to find an interim solution to help the applicant financially.
EVENTS AFTER THE FIRST DIRECTIONS HEARING
A confidential case management conference was conducted by a Registrar of this Court on 23 December 2014. The applicant was accompanied by Ms Peric and a solicitor from Social Security Rights Victoria Inc. The case management conference was conducted on a confidential basis. The only information subsequently conveyed to the Court by the Registrar was the persons who attended the case management conference and the fact that the applicant’s complaints could not successfully be resolved.
The applicant has not provided the Court with an email address or facsimile number, but has provided a postal address. Ms Peric has provided her mobile number. Communication with the applicant could therefore only occur by the sending of written correspondence by post. Of necessity then, other than the sending of written correspondence by post, the only contact with the applicant was through Ms Peric.
On 29 January 2015, correspondence was sent from my chambers to the parties, the substance of which I reproduce below:
Her Honour has been told that the above proceeding was not resolved at the case management conference of 23 December 2014. Her Honour is minded to deal with the Applicant’s interlocutory application together with his entire application by way of an expedited hearing. Please advise by email or post whether a hearing date of either Thursday 5 March 2015 or Friday 6 March 2015 would be suitable to the parties. The matter will be listed for one day.
As part of preparation for hearing, the Applicant should set out the exact nature of his complaints against the Respondent, what orders he wishes the Court to make and the reasons why. In particular, her Honour would expect the Applicant’s submissions:
•to identify the precise nature of the decision(s) being challenged (including identifying, where relevant, the particular Centrelink payment(s) to which each decision relates); and
• for each decision being challenged, the ground(s) for the challenge.
If the Applicant intends to argue that Centrelink falsified his records or that a Centrelink decision was affected by fraud, the Applicant will need to make specific submissions on this and provide affidavit evidence to support this claim.
Please also note that any evidence on which the parties intend to rely at trial will need to be filed ahead of time (in the form of affidavit evidence, with documentary evidence to be exhibited to the affidavit as appropriate). Her Honour would be assisted if the Applicant could include in his evidence an explanation of the Centrelink payment(s) which the Applicant receives or contends he is entitled to, and copies of any relevant correspondence or medical certificates. Her Honour would be grateful if the Respondent could also address those matters if it becomes necessary.
Her Honour proposes to make directions giving dates for the filing of affidavit evidence and submissions as soon as the parties are able to confirm a trial date. Communications about those directions can be done by email or post and no court attendances will be required.
Her Honour has also been informed that Mr Graham Wells, a solicitor from Social Security Rights Victoria, attended the case management conference. If the Applicant wishes her Honour to grant leave for Mr Wells to represent him in the proceeding, her Honour would be happy to do so. The Applicant should be aware that unless he is formally represented in the proceeding, he will be required to conduct the matter himself at hearing.
(Emphasis in original.)
This correspondence was sent by express post to the applicant and was recorded as delivered.
Some two weeks later, on 11 February 2015, Ms Peric called my chambers and spoke to my associate. She informed my associate that the letter from my chambers had been received. She stated she was trying to find a new solicitor and foreshadowed a meeting with solicitors the next day. She otherwise did not respond to the contents of the letter sent to Mr Dauguet. Mr Dauguet himself has provided no response. In response to my associate’s request, Ms Peric stated it was not possible to speak with the applicant directly as he was asleep and “on a lot of painkillers”. My associate reminded Ms Peric that it would be necessary for the Court to deal with the applicant directly, or with a solicitor retained by him. My associate requested that, following the meeting with solicitors foreshadowed the next day, my chambers be updated as to whether the applicant would be represented and whether the proposed hearing dates of either 5 or 6 March were suitable.
On 13 and 17 February 2015 my associate called Ms Peric’s mobile phone and left messages seeking an update and requesting a return call. My associate also called on 15 and 16 February 2015 without leaving a message. No response was received in chambers. However on 17 February 2015 Ms Peric called the Victorian Registry. Ms Peric advised the Registry officer that she was in the process of obtaining legal representation and was intending to file further documents in the proceeding. The fact that Ms Peric stated that she (rather than Mr Dauguet) was obtaining legal representation foreshadowed the unusual circumstances which presented themselves before me on the return of the interlocutory application on 8 April 2015.
On 18 February 2015, having had no substantive response from Mr Dauguet or Ms Peric regarding the listing of the matter for hearing, I listed the matter for a further directions hearing on 2 March 2015 at 10.15 am. A notice of listing was sent by my chambers by express post to the applicant’s postal address and was recorded as delivered on 20 February 2015.
On 18 February, 20 February and again on 26 February 2015 a voicemail was left by a Registry officer on Ms Peric’s mobile phone, the substance of which was that the matter had been listed for a directions hearing on 2 March 2015 and the applicant or Ms Peric should contact the Registry as a matter of urgency. There were a number of other occasions on which a Registry officer called Ms Peric’s mobile phone without leaving a message: the calls went unanswered.
THE SECOND DIRECTIONS HEARING
At 10.20 am on 2 March 2015 the matter was called on for directions. The respondent appeared but there was no appearance for the applicant. Mr Dauguet and Ms Peric were called outside the courtroom, but there was no appearance. I then adjourned briefly so my associate could make a telephone call to Ms Peric’s mobile phone, which she did and left a message to the effect that the applicant had not appeared at this morning’s directions hearing, that the Court sought an explanation for his failure to attend and that he should call chambers as a matter of urgency.
No response was received to that message. Instead, Ms Peric took other steps, which I set out below.
At the directions hearing, the respondent made an oral application for the proceeding to be dismissed, with costs. It was submitted the Court could do so under s 10(2)(b)(ii) of the AD(JR) Act, under rr 5.22 and 5.23 of the Rules, and under s 37P(5) of the Federal Court of Australia Act. In support of that application, the respondent tendered a letter sent to Mr Dauguet in January 2015. The letter is dated 30 January 2015 and relevantly states:
The purpose of this letter is to inform you that section 152 of the Social Security (Administration) Act 1999 imposes a time limit for appealing the decision made by the Centrelink authorised review officer on 3 November 2014 (“the decision notice”) to the Social Security Appeals Tribunal (“the Tribunal”).
Specifically, if you do not lodge an application for review with the Tribunal within 13 weeks of the decision notice being given and your application is ultimately successful you could not be paid arrears of newstart allowance from the date of cancellation. Arrears could only be paid from the date of your application to the Tribunal.
I note that you have lodged an application under the Administrative Decisions (Judicial Review) Act 1977 with the Federal Court and that this matter will be listed for hearing in March 2015.
It would be in your interest, whilst still pursuing your Federal Court application, to lodge an application for review with the Tribunal immediately.
(Emphasis in original.)
The 13-week period would, accordingly, have expired in early February 2015. The respondent informed the Court that no review application had been lodged in the SSAT.
EVENTS FOLLOWING THE SECOND DIRECTIONS HEARING
On Friday 6 March 2015, Ms Peric called my chambers and spoke to my associate. She informed my associate she had seen solicitors on the preceding Friday (27 February 2015) and she had engaged them to act on her behalf. My associate informed Ms Peric of what had transpired at the directions hearing on Monday 2 March 2015. In a subsequent telephone conversation that day, Ms Peric gave my associate the name and contact details of the solicitors she said she had retained. The firm identified by Ms Peric was Pasha Legal.
Ms Peric was informed that Mr Dauguet would be sent orders made on 6 March 2015, together with a transcript from the directions hearing on 2 March 2015 so he could see what had occurred, and what he needed to do. Those documents were duly sent. An email was then sent to both parties summarising what had occurred, reminding Mr Dauguet of his merits review rights in the SSAT and the AAT, and reminding both Mr Dauguet and Ms Peric of the litigation representative procedure under r 9.63 of the Rules. The email was sent by express post to Mr Dauguet, together with the 6 March 2015 orders and the transcript of the 2 March 2015 directions hearing which Mr Dauguet did not attend.
The 6 March 2015 orders gave Mr Dauguet an opportunity to deal with the interlocutory application made by the respondent, and were intended to clarify whether Mr Dauguet was legally represented, following the communications to chambers that had occurred. Those orders provided:
1. The applicant’s solicitor is to file a notice of acting in accordance with r 4.03 of the Federal Court Rules on or before 4pm on Wednesday 11 March 2015.
2. The applicant’s solicitor is to file and serve a notice of change of address for service in accordance with r 11.01 of the Federal Court Rules on or before 4pm on Wednesday 11 March 2015.
3. On or before 4pm Friday 27 March 2015, the applicant is to file and serve:
a. an affidavit confirming that Ms Hina Pasha of Pasha Legal is instructed to act on his behalf in this proceeding;
b. any written submissions he wishes to make in answer to the respondent’s application [made] at the directions hearing on 2 March 2015, that the proceeding be dismissed under r 5.23 of the Federal Court Rules or s 37P(5) and (6) of the Federal Court of Australia Act 1976 (Cth);
c. an amended application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) setting out full particulars of the decision or decisions sought to be reviewed, the grounds of review and the relief sought; and
d. an affidavit from the applicant, compliant with the Federal Court Rules, in support of the amended application which provides evidence of the decisions sought to be reviewed.
4. On or before 4pm Tuesday 14 April 2015, the respondent file and serve any submissions and affidavits in response to the material filed by the applicant.
That same day, a woman identifying herself as a solicitor from a firm called Pasha Legal telephoned my chambers and spoke to my associate. She informed my associate she had been giving some “limited assistance” to Ms Peric, but did not act for Mr Dauguet, and was not “on the record” in the proceeding.
The solicitor from Pasha Legal was asked to provide an affidavit clarifying whether she acted for Mr Dauguet, or Ms Peric. On 13 March 2015 an affidavit from Hina Pasha of Pasha Legal was sent to chambers. A copy of that affidavit was subsequently sent by my chambers to the parties. In it Ms Pasha deposed:
Neither Pasha Legal nor I were acting on behalf of Mr Dauguet and Ms Peric at any time in this Court proceeding.
On 27 March 2015, the applicant and Ms Peric attended the Registry. Ms Peric sought to file an affidavit, but without annexures referred to in it. She was informed by the Registry the affidavit could not be sworn or affirmed in that form, nor received for filing. After contact with chambers, the Registry informed Ms Peric that the complete affidavit and annexures could be filed on or before Thursday 2 April 2015. The respondent was afforded an equivalent extension in relation to any reply material it sought to file.
An affidavit sworn by Ms Peric together with annexures was filed on 2 April 2015. In fact, it was not an affidavit that purported in any way to comply, or even attempt to comply, with the 6 March orders. There was no affidavit from the applicant. There were no submissions responding to the respondent’s interlocutory application for the proceeding to be dismissed.
The affidavit was instead from Ms Peric. Its main purpose was to support an interlocutory application, filed at the same time, seeking orders that Ms Peric be joined as a party to this proceeding. The application sought a number of other orders, none of which was interlocutory in nature, some of which repeated orders sought in Mr Dauguet’s application and the remainder of which sought relief for the benefit of Ms Peric and her own disputes with Centrelink.
There were, at least, some letters from Centrelink which related to the decision to cancel Mr Dauguet’s Newstart allowance, and to that extent the production of those letters advanced the understanding of the issues in dispute in this proceeding between Mr Dauguet and Centrelink. Aside from that, the affidavit was clearly for the collateral purpose of advancing Ms Peric’s interests in participating in this proceeding as she wished to, and introducing her own claims against Centrelink.
Insofar as the contents of the affidavit and the annexures are relevant to the matters the Court must decide, I refer to them below.
Neither the interlocutory application nor the affidavit was served on the respondent. This may be added to the list of unsatisfactory aspects of the way Ms Peric has behaved in relation to this proceeding. The respondent became aware of the application only due to a communication from the Court.
The interlocutory application filed by Ms Peric was returnable on 8 April 2015. The affidavit was obviously prepared with the assistance of a lawyer, and indeed the footer to the affidavit contained the contact details for a legal firm, Hughes Watson Marks Kennedy.
Mr Dauguet appeared at the hearing. Ms Peric was present in the body of the court. One Mr Davison, a solicitor from Hughes Watson Marks Kennedy, announced his appearance for Ms Peric. I clarified with Mr Davison that he did not have any instructions to act for Mr Dauguet. He confirmed he did not. Mr Davison made some submissions in support of Ms Peric’s interlocutory application. He explained he had assisted Ms Peric in compiling her affidavit, but was only retained the day before the hearing – that is, on 7 April 2015. He submitted Ms Peric was the “engine” behind Mr Dauguet’s proceeding, and that in practice Ms Peric was the “de facto applicant”. He emphasised that in the interlocutory application she also made her own claims about the denial of a carer’s allowance to her in respect of her son, who I note from the evidence is 17.
The respondent opposed the joinder application, on several bases. The respondent submitted that the requirements for joinder under rr 9.03 or 9.05 were not met (including in relation to r 9.05 an absence of power to join a person on the application of someone who was not a party); that the joinder was neither necessary nor appropriate given the final orders sought by Ms Peric; and that given the stage of the proceedings and non-compliance by Mr Dauguet with the 6 March orders, joinder should not be ordered.
On being asked what his attitude was to the joinder application by Ms Peric, Mr Dauguet submitted that Ms Peric did everything with Centrelink; and that he couldn’t remember things very well. In answer to a question from me, he stated that he did want Ms Peric’s affidavit to be treated as evidence in his proceeding about the cancellation of his Newstart allowance.
At the conclusion of submissions, I expressed the Court’s concern that Ms Peric sought to join the proceedings while legally represented, yet Mr Dauguet, the principal applicant, was to remain unrepresented. I emphasised the advantages for Mr Dauguet of legal representation and advice, as well as his current costs exposure in the absence of legal advice about his options, despite both the Court and the respondent having emphasised to him, and to Ms Peric, his rights of access to merits review. I emphasised to Mr Davison that neither Mr Dauguet nor Ms Peric had taken advantage of any form of merits review of the Centrelink decision they each complained about. Expressing gratitude for the fact that Mr Davison had appeared, and was able to advise Ms Peric at least, I gave Mr Davison an opportunity to speak to Ms Peric, to Mr Dauguet, and to the respondent’s legal representative, to see if anything could be sorted out so far as the future conduct of the proceeding as a whole was concerned.
Mr Davison then sought some additional time over the luncheon adjournment. When the Court resumed in the afternoon, Mr Davison was not present. Ms Peric informed the Court she had terminated Mr Davison’s instructions and now appeared for herself.
In those circumstances, I reserved my decision on Ms Peric’s interlocutory application and adjourned.
CONSIDERATION
Thus, there are two interlocutory applications to be determined: the respondent’s application for Mr Dauguet’s proceeding to be dismissed; and Ms Peric’s application to be joined as an applicant in the proceeding. Although Ms Peric’s application was second in time, it is appropriate to deal with it first.
I make the following findings about the nature of the decisions made by Centrelink concerning Mr Dauguet, and those concerning Ms Peric, which the affidavit from Ms Peric and the correspondence attached to it now reveal.
I take the correspondence from Centrelink, and from the Ombudsman in chronological order.
The first is a letter from the Assistant Director, Service Recovery, Older Australians, Disability and Carers Branch, to Ms Peric. It is dated 17 May 2013. It concerns Ms Peric’s complaint about Mr Dauguet not receiving the disability support pension, which was a decision made by Centrelink in 2011. The evidence does not explain why there is such a gap between the decision and Ms Peric’s complaints about it. The principal subject matter appears to be a request by Ms Peric that material on Mr Dauguet’s file be deleted. The letter responds:
Further to your contact with the Secretary’s office regarding Mr Dauguet’s Disability Support Pension, an officer from the Department of Human Services (the department) contacted you on 5 April 2013. During this conversation you requested that all information documented on Mr Dauguet’s departmental record and your departmental record that refer to a review of Mr Dauguet’s Disability Support Pension be deleted.
I have been advised that these documents are not able to be deleted. However upon your request, both Mr Dauguet’s record and your record now clearly state neither Mr Dauguet nor yourself have requested a review of the rejection of Mr Dauguet’s claim for Disability Support Pension.
I apologise, on behalf of the department, for the concern that this misunderstanding has caused Mr Dauguet and yourself.
The letter then assists Mr Dauguet, through Ms Peric, to complete a new application for a disability support pension, based on new medical information.
The department has considered Mr Dauguet’s original Disability Support Payment application and requires the attached claim form and treating doctor form to be completed to assess his current eligibility to Disability Support Payment. I have enclosed a Disability Support Pension (DSP) claim form and a new Medical Report form. Mr Dauguet may wish to complete the claim for DSP and have his treating doctor complete the Medical Report. These completed forms can be returned in the reply paid envelopes enclosed to the postal address of Centrelink, Disability Services, Reply Paid 7806, CANBERRA ACT 2610.
The department would like to again offer you the opportunity to attend a face to face meeting with a Manager from a Disability Support Team at a site convenient to you to assist with progressing Mr Dauguet’s new claim for Disability Support Payment.
There is no evidence these offers of assistance were taken up. There is no evidence a new application for disability support pension was made by Mr Dauguet.
The second letter is dated 30 June 2014, and is addressed to Ms Peric. It is from Ms Donna Craig, an individual Ms Peric mentions in her evidence elsewhere. Ms Craig was at the time the Manager of the “Escalated Complaint and Feedback team” for the Department of Human Services. The letter is a response to Ms Peric’s complaints to the Commonwealth Ombudsman, it seems about the same matters which form part of this proceeding, and of Ms Peric’s interlocutory application.
As to the suspension of Mr Dauguet’s Newstart allowance, the letter states:
As advised by letter dated 12 June 2014, Mr Dauguet’s Newstart Allowance has been suspended as he did not attended [sic] an Employment Services Assessment appointment. The letter also included advice about what to do if you disagree with this decision. As you were advised on 18 June 2014 by phone, your partner must attend an Employment Services Assessment appointment prior to the restoration of his payment.
There is no evidence Mr Dauguet has attended the Employment Services Assessment as he was required to.
There then follows a long explanation of why the carer allowance paid to Ms Peric for her son was cancelled. It should be set out in full because it is another example of the level of non-cooperation exhibited by Ms Peric with the Department, and explains, it seems to me, how she finds herself in the predicament she now complains about, which is largely due to her own inaction, or refusal to act in the way the scheme for the payment of social security benefits requires.
Our records show that on 3 May 2013 you were sent an automatically issued letter, explaining the review requirements for your Carer Allowance for Jordan Dauguet. Eligibility for Carer Allowance is required to be assessed under the Adult Disability Assessment Tool once a child turns 16 years. Jordan Dauguet turned 16 years of age on 3 August 2013. The letter asked you to complete:
Ÿan enclosed SA419 – Review of Eligibility for Carer Allowance – Caring for a person 16 years and over;
Ÿa Medical Report Carer Payment and/or Carer Allowance for a person – 16 years and over;
Ÿa Carer Review form SA419 and Medical Report (SA332a).
The letter advised that Carer Allowance payments for Jordan would cease from 3 November 2013 (16 years and 3 months) if the review forms were not returned.
As the requested forms were not returned, Carer Allowance for Jordan was cancelled on 4 November 2013; a letter was issued informing you of the cancellation and your appeal rights if you disagreed with the decision. This was reprinted and posted to you again on 28 May 2014.
You attended Greensborough Service Centre on 18 November 2013 and were issued with a Carer Allowance claim form for Jordan. There is no record of this claim being return [sic] and lodged with the department.
You lodged a medical report for Jordan on 8 April 2014 at Greensborough Service Centre. You state that you were told on this occasion that the review of Carer Allowance would be assessed and you would be paid arrears. The department has no record of this advice being given to you and this advice would be different to the written advice provided to you upon the cancellation of Carer Allowance in November 2013.
As the medical report was lodged more than 13 weeks after the cancellation advice letter dated 4 November 2013, the Carer Allowance for Jordan Dauguet cannot be restored. If the review and medical report had been returned by the due date, an assessment on your son’s entitlement would have been completed and if entitled a transfer to an adult care receiver may have occurred. As the review forms was not [sic] returned by the due date a new claim is required to support the medical information you lodged on 8 April 2014.
The policy supporting this decision is contained in the Guide to Social Security Law: 3.6.7.42 – Qualification for CA (child) – Transition (Turning 16 Years of Age) from CA (child) to CA (adult) (printed from online and attached).
The reasons for the decision to cancel Carer Allowance for Jordan Dauguet and the options available to you, have also been provided to you in subsequent contacts with the Customer Relations Unit on 27 May 2014 and by Leanne on 02 June, 04 June and 10 June 2014.
In your previous contacts with the department you have stated that you did not wish to lodge an appeal, as you do not believe that the cancellation of your Carer Allowance is a decision. I confirm to you again that the cancellation of your Carer Allowance is a decision, and can be appealed by you if you disagree with the decision. However, as any appeal lodged now would be after 13 weeks of being given notice of the decision, you may only receive your entitlement from the date you apply for review.
During your conversation with Leanne, you requested to talk to a “manager in Canberra”. This request was discussed with me. As, there is no discretion to change the decision to cancel the Carer Allowance for Jordan Dauguet outside of an appeal process and you had been advised of your options, I declined to escalate this issue further.
Ms Peric has an ongoing complaint about the cessation of her carer’s allowance for her son in part at least by alleging there was some deliberate falsity about the way her son’s medical condition was recorded. She alleged (in a letter which is also annexed to her affidavit):
On Jordan record his medical condition is LISTED AS
MUSCULO-SKELETAL DISORDER
SPINA BIFIDA
Which is listed as not Recognised Disability.
I have evidence of this.THEY have falsely changed his medical condition.
My son has a recognised centrelink Disability Which is a physical
Disability, which makes him qualify under the law.An explanation for the way the medical conditions suffered by Ms Peric’s son are expressed in Centrelink records (which is the subject of complaint by Ms Peric) is given in the 30 June 2014 letter:
The information contained in the most recent medical report provided by you on 8 April 2014, lists the medical conditions for Jordan Dauguet as Spina Bifida Occulta of L5/S1 and Thoracic Spinal Scoliosis. The medical report was signed by Dr Raouf Megally of the St Mina Medical Centre on 8 April 2014.
Due to the multiple types of medical conditions, purely for the purposes of recording the condition type on our records, medical conditions are placed in different over-arching groups. This is the reason the conditions have been coded under the ‘muscular-skeletal – other’ group and also the ‘Spina Bifida’ group – which correctly covers the Spina Bifida Occulta of L5/S1 and the Thoracic Spinal Scoliosis that were listed in the medical report.
I need to emphasise, while you feel this is an incorrect record of the condition, it meets our departmental standards of record keeping and has not had any impact on the assessment and the outcome of the review.
There are a number of factors that are used to determine eligibility for Carer Allowance or Carer Payment. The type of condition and whether it is classed as a ‘recognised disability’ is not factored into the assessment. The Adult Disability Assessment Tool is used when assessing a claim for Carer Allowance or Carer Payment. This determines the care receiver’s functional ability, emotional state, behaviour and special care needs.
Finally, this letter deals with allegations of fraud made by Ms Peric, which are made again in both Mr Dauguet’s application and in Ms Peric’s affidavit material in support of her interlocutory application. Ms Peric appears to have no compunction in making very serious allegations against whomsoever she chooses. The 30 June 2014 letter responded:
An investigation into your allegations of fraudulent staff activity has been investigated by the Internal Fraud Control and Investigations branch and they have found no instances of unauthorised access or inappropriate changes to your record.
The next letter comes again from Ms Craig, to Ms Peric “as nominee for Mr Alain Dauguet”, and is also responsive to Ms Peric’s complaints to the Commonwealth Ombudsman. It is dated 8 July 2014.
It first explains why the fact that Ms Peric lodged a new medical certificate for Mr Dauguet does not necessarily relieve him of the obligation to attend for an Employment Services Assessment, but only does so if he is granted an exemption from attending. The letter explains:
You have advised that your partner, Mr Alain Dauguet lodged a medical certificate; however he has not been granted an incapacity exemption.
When a customer lodges a medical certificate, this does not automatically result in the department granting a temporary incapacity exemption. When we assessed the medical certificate provided by Mr Dauguet, all relevant evidence was considered, including:
• the new medical certificate
• any current and valid assessment of Mr Dauguet’s work capacity and•The impact of any conditions on the medical certificate that have not been assessed by an Employment Services Assessment (ESAt).
As the exemption was not granted, Mr Dauguet is subject to Activity Test/participation requirements. An Employment Pathway Plan (EPP)/Individual Participation Plan (IPP) should be negotiated in a manner that takes into consideration his current work capacity.
Mr Dauguet may still be assessed as having a temporary reduced work capacity or a partial capacity to work based on his most recent, current and valid assessment of the his work capacity [sic]. This would be determined by attending an Employment Services Assessment (ESAt). Mr Dauguet must attend this appointment in person.
The purpose of an Employment Services Assessment (ESAt) is to assess the impact of medical conditions and/or other identified barriers on the job seeker’s capacity to participate in work or employment services and to refer the job seeker to appropriate employment services assistance.
The Suspension of Mr Dauguet’s Newstart Allowance
As we were not able to grant Mr Dauguet with a further medical exemption, we arranged an ESAt. As Mr Dauguet did not attend this appointment, his Newstart Allowance has been suspended. The Newstart Allowance will not be restored until the ESAt is attended.
Our records show that you have made multiple contacts to us regarding this issue. This includes contact via the call centre, Customer Relations Unit, Assessment Services and in person. Please consider this a consolidated response on behalf of the department regarding this issue.
The letter then explains the decision-making process about Mr Dauguet’s disability support pension application, dating back to 2011:
I would like to provide a summary regarding the rejection of Disability Support Pension (DSP) in 2011:
•You attended an assessment on Mr Dauguet’s behalf on 12 July 2011 and advised the Assessor that Mr Dauguet was too unwell to attend. You advised the Assessor that you were lodging a Disability Support Pension (DSP) claim for Mr Dauguet and would not show the Assessor the medical report form, only the medical certificate. The conditions assessed were L5/S1 spondylosis (spinal condition), diabetes type II and nerve root compression lumbar spine.
•Mr Dauguet lodged a DSP claim on 12 July 2011. The medical report form provided with Mr Dauguet’s claim lists his medical conditions as L5/S1 for a minal stenosis (spinal condition), type 2 diabetes, obese, peripheral neuropathy and hypertension.
•Mr Dauguet was referred for a Job Capacity Assessment (as a file assessment) for his DSP claim which was completed on 6 October 2011. All of the medical conditions listed in the medical report form were assessed, none of which were considered to be fully diagnosed, treated and stabilised.
•To qualify for DSP, a person must have a physical, intellectual or psychiatric impairment and be assigned an impairment rating of at least 20 points and a continuing inability to work. To be assigned an impairment rating, the condition must be permanent and fully diagnosed, treated and stabilised. The impairment must be sufficient to prevent the customer from doing any work within the next 2 years and either prevents them from undertaking educational or vocational or on the job training during the next 2 years or such training is unlikely to enable the customer to do any work within the next 2 years.
•Mr Dauguet’s DSP claim was rejected on 12 October 2011 as a result of the Job Capacity Assessment report.
•On 22 December 2011, Mr Dauguet lodged further medical evidence to appeal the decision to reject his claim for DSP. Mr Dauguet was referred for another Job Capacity Assessment with the new medical evidence. This report was not completed and was returned by the Assessor as the medical evidence provided to appeal the decision was greater than 2 years old. You were advised on 29 December 2011 that new medical evidence was required if you would like to appeal the decision to reject Mr Dauguet’s DSP claim. An appeal was completed, however you advised that you never requested an appeal and you were dissatisfied that an appeal was registered and completed, therefore the review was deleted and the decision was not reviewed.
Mr Dauguet will need to lodge a new claim for DSP along with new medical information and have a new Job Capacity Assessment if he would like to test his eligibility for DSP.
I acknowledge that you disagree with the decision made in relation to Mr Dauguet’s claim for Disability Support Pension. The options available to you have been provided to Mr Dauguet and to you in this letter, and previously on 12 October 2011.
I note that you have requested to talk to a Manager in Assessment Services. As, there is no discretion to change the decision to reject Mr Dauguet’s Disability Support Pension claim, outside of an appeal process and you had been advised of your options, I declined to escalate this issue further.
Critically, for the discretions I propose to exercise in this proceeding, the letter then advises of review rights. It states:
You have the right to appeal the decisions we have made. If you do not agree with a decision we have made, you may:
• contact us and ask for a review of the decision
• go to the Social Security Appeals Tribunal if you disagree with the review•go to the Administrative Appeals Tribunal if you disagree with the Social Security Appeals Tribunal’s decision
If you disagree with a decision, contact us as soon as possible. It is important to ask for a review within 13 weeks of being notified about the decision. If your request for a review is more than 13 weeks after being notified and the decision can be changed, you may only receive your entitlement from the date you requested the review.
The evidence does not reveal any attempts to access review by either Ms Peric or Mr Dauguet. Any adverse effects on Mr Dauguet, or Ms Peric, from a failure to access these review rights promptly (such as the expiration of the 13-week period and the consequent inability to recover arrears) are their joint responsibility for refusing to take the advice given to them.
I note it is only after this letter that Mr Dauguet’s Newstart allowance is stopped. Annexed to the affidavit is a notice of decision addressed to Mr Dauguet and dated 13 August 2014. The decision is entitled “Suspension of your Newstart Allowance” (emphasis added). However other evidence suggests this may have been a cancellation decision: see [86] below. In other words, Mr Dauguet was given notice of what he had to do by Ms Craig, did not do it, and thereafter suffered the consequence which had been foreshadowed. Despite claiming to be Mr Dauguet’s “nominee” to Centrelink, Ms Peric appears to have stood by and allowed this to occur.
It appears that there was an internal review of the decision made on 13 August 2014. Ironically, this seems to be the review Ms Peric adamantly insists neither she nor Mr Dauguet asked for, notwithstanding a review could only be to Mr Dauguet’s benefit. Her point seems to be that she sought review of a suspension of Mr Dauguet’s Newstart allowance, rather than a cancellation, and this was important because it affected entitlements to arrears. Whether the review decision was correct to describe what occurred as a cancellation is the kind of issue that could have been raised before the SSAT and the AAT, had Mr Dauguet and Ms Peric pursued those options. The internal review decision is dated 3 November 2014 and is expressed to relate to “the decision made on 13 August 2014 to cancel your Newstart Allowance”.
The review decision identifies the issues in the following way:
The main issues in this review are whether:
•You are required to attend an Employment Services Assessment appointment.
• You are or were otherwise qualified to receive Newstart Allowance.
The applicant has had the last two options explained to him. He should be taken to know of the first option. He has not pursued any of those options himself. Where Ms Peric has pursued legal assistance, she has done so on her own behalf but even then has not followed through with the assistance she has been given. The law requires that the applicant prosecute his claim, and he has not done so. More particularly, he has failed to comply with the Court’s direction to file an amended application setting out full particulars of his claim under the AD(JR) Act. There is no basis to suppose his compliance is likely to improve in the future.
The failure to prosecute the claim is compounded by the difficulties in contacting the applicant. He provides no telephone number for himself. Nor did he provide an email address. Nor a facsimile number. He provided only a postal address, and then did not respond to correspondence sent to him in that way. Of the two mobile phone numbers provided at various stages, both were said by Ms Peric to belong to her. At the hearing on 8 April it became apparent the applicant had changed his place of residence. He had not filed a new notice of address for service. I directed him to go and fill out the appropriate form over the lunchtime adjournment on 8 April 2015, which he did. A proceeding cannot be conducted by the Court on behalf of the applicant by the Court prompting the applicant at each step, and that is the point which this proceeding has reached.
Section 37M of the Federal Court of Australia Act speaks of the “just” resolution of disputes. In some circumstances, dismissal pursuant to r 5.23 would be inconsistent with this obligation. However, in the present circumstances, I am satisfied that the applicant has had available to him two tiers of external merits review of the respondent’s decision to suspend and then to cancel his Newstart allowance. I am also satisfied, if it be relevant (which I do not consider it is) that Ms Peric has the same access in relation to the cancellation of a carer’s allowance payable in respect of their son.
The dispute which the applicant has with the respondent concerns the payments of benefits under s 593 of the Social Security Act. The Social Security (Administration) Act 1999 (Cth) establishes a comprehensive process of merits review for decisions made under either the Social Security Act or the Social Security (Administration) Act: see Divs 2 (internal review), 3 and 4 (SSAT review) and 5 (AAT review) of Pt 4 of the Social Security (Administration) Act.
Section 129(1) of the Social Security (Administration) Act provides that “a person affected by a decision of an officer under the social security law may apply to the Secretary for review of the decision.” None of the exclusions set out in that section is relevant in the present proceeding.
Following an application for review under s 129, the Secretary, the Chief Executive Officer of Centrelink or an authorised review officer must review the decision and either affirm, vary or set aside the decision being reviewed. Section 135 relevantly provides:
135 Review of decisions following application under section 129
(1)Subject to subsection (3) and subsection 127(1), if a person applies under section 129 for review of a decision, the Secretary, the Chief Executive Centrelink or an authorised review officer must:
(a) review the decision; and
(b) do one of the following:(i) affirm the decision;
(ii) vary the decision;
(iii) set the decision aside and substitute a new decision.
(2)In the case of an application for review of a decision made by an officer of the Employment Department as a delegate of the Secretary, the reference in subsection (1) to an authorised review officer is to be read as a reference to an authorised review officer who is an officer of that Department.
(3)An authorised review officer may not review a decision relating to the exercise of the Secretary’s power under section 182 of this Act.
(5) If:
(a) a person sets aside a decision under subsection (1); and
(b)the Secretary is satisfied that an event that did not occur would have occurred if the decision had not been made;
the Secretary may, if satisfied that it is reasonable to do so, determine that the event is taken to have occurred for the purposes of the social security law.
In the 3 November 2014 letter from Ian Anderson, authorised review officer to the applicant, the decision of the Department of Human Services to cancel Mr Dauguet’s Newstart allowance was affirmed. The relevant extracts of the 3 November letter are set out at [86] to [91] above.
The Social Security (Administration) Act provides for a review from a decision of an authorised review officer to the SSAT. Section 142(1) relevantly provides:
142 Application for review by SSAT
(1)Subject to section 144, if:
(a) a decision has been reviewed by the Secretary, the Chief Executive Centrelink or an authorised review officer under section 126 or 135; and
(b) the decision has been affirmed, varied or set aside;
a person whose interests are affected by the decision of the Secretary, the Chief Executive Centrelink or the authorised review officer may apply to the SSAT for review of that decision.
The review powers of the SSAT are set out in s 149 of the Social Security (Administration) Act. Section 149(1) provides:
149SSAT review powers
(1) If a person applies to the SSAT for review of a decision (other than a decision referred to in subsection (5)), the SSAT must:
(a) affirm the decision; or
(b) vary the decision; or
(c) set the decision aside and:(i) substitute a new decision; or
(ii) send the matter back to the Secretary or the Chief Executive Centrelink, as the case requires, for reconsideration in accordance with any directions or recommendations of the SSAT.
Following a decision by the SSAT to affirm, set aside or vary the decision of the authorised review officer, an application may be made to the AAT for a review of the decision of the SSAT. Section 179(1) of the Social Security (Administration) Act provides:
179 Review of decisions by AAT
(1) If:
(a) a decision has been reviewed by the SSAT; and
(b) the decision has been affirmed, varied or set aside by the SSAT;
application may be made to the AAT for review of the decision of the SSAT.Reviews to the AAT are limited to decisions that have been made by the SSAT. Section 181 of the Social Security (Administration) Act provides:
181 Review by AAT limited to decisions reviewed by SSAT
The AAT may only review a decision that has been reviewed by the SSAT.The applicant has been told on several occasions about his right to access merits review, but appears to have chosen not to take up that option. The allegations he makes in his original application about the state of his records with Centrelink are matters he would also be able to raise on any merits review, especially if he said those records were relevant to his eligibility for the payments to which he claims to be entitled. Further, if the conduct of any Centrelink officers had interfered in any way with him receiving payments under the Social Security Act to which he was entitled, that is also the kind of evidence which could be relevant on merits review.
Most importantly, it is the SSAT and the AAT which are empowered to set aside the decision of the respondent and substitute a decision more favourable to the applicant. This Court is not empowered to grant that kind of relief. The resolution of the applicant’s dispute can not only be achieved more effectively by him utilising his merits review rights, it is those merits review rights which are most capable of delivering the outcome he expressly seeks in his originating application.
Those considerations persuade me it is also appropriate to exercise the discretion conferred by s 10(2)(b)(ii) of the AD(JR) Act, on the basis that the applicant’s access to two tiers of merits review is an adequate alternative remedy: see McGowan v Migration Agents Registration Authority (2003) 129 FCR 118; [2003] FCA 482 at [49] ff per Branson J. If the applicant is out of time to ensure any favourable decision by the SSAT or the AAT secures him payments in arrears, that is only because he has consistently refused to take the advice proffered to him to lodge applications for merits review in a timely fashion.
There are thus two bases which I rely upon to make the orders I propose to make in this proceeding: r 5.23 of the Rules and s 10(2)(b)(ii) of the AD(JR) Act. I consider the availability of two tiers of merits review, and the applicant’s failure to take any steps to access that review, are also relevant factors to the exercise of the discretionary power under r 5.23, but even if r 5.23 were not available I would have made the same orders under s 10(2)(b)(ii) of the AD(JR) Act. I also rely on s 37P(5) of the Federal Court of Australia Act, in the way I have set out above.
Accordingly, there will be orders dismissing the proceeding.
Some time after the Court reserved its decision on the two applications, an affidavit was filed in the Registry. It purports to be an affidavit of Mr Dauguet, and was sworn on 22 April 2015. It was filed on 22 April 2015. It was not served on the respondent. The respondent became aware of the affidavit only through a communication from the Court.
The affidavit covers a number of issues which have arisen in the progress of the proceeding. It states that Mr Dauguet was unaware there was a hearing on 2 March 2015 “to dismiss my application”. As I have recounted, the hearing on 2 March 2015 was in fact a directions hearing, and the dismissal application by the respondent was only made after the applicant did not appear.
The affidavit makes repeated allegations against a number of people, in strong terms. It alleges fraud, cover ups, conspiracies between solicitors retained by Ms Peric and the Australian Government Solicitor, and breach of professional obligations by solicitors retained by Ms Peric. At several points the affidavit asserts solicitors were retained by Mr Dauguet, although it is clear, as I have found elsewhere in these reasons, that on each occasion the solicitors informed the Court they had instructions only from Ms Peric. The affidavit accuses Centrelink and its officers of fraud, of falsifying and destroying records, of manufacturing medical certificates, making “illegal” appointments for Mr Dauguet to attend Employment Services Assessments and “falsely” removing appeal records.
The affidavit asserts (with exhibits which appear to substantiate at least this fact) that Ms Peric paid $1,000 to Pasha Legal and $300 to Mr Davison. The affidavit then accuses each of those solicitors of lying, working in Centrelink’s interests rather than those of Mr Dauguet and Ms Peric, and (in relation to Mr Davison) as “working as a messenger” for the Australian Government Solicitor.
I should say at once that there is no basis for those allegations in any of the material, or in the way either of those solicitors has conducted themselves with the Court: the allegations are intemperate and misplaced. Mr Davison in particular behaved professionally and in a measured way when he appeared on behalf of Ms Peric, and sought conscientiously to advance her joinder application.
This affidavit was filed without leave, and after I had reserved my decision on the two applications. That in itself would be sufficient to decline to consider it. However, if I were persuaded that it was in fact an affidavit by Mr Dauguet himself, given my other findings about his lack of participation in this proceeding, I may have been inclined to take it into account, subject to giving the respondent an opportunity to deal with its contents.
I am not however persuaded that Mr Dauguet has done any more than, possibly, sign his name on the affidavit. Its content and tone are strikingly similar to communications from Ms Peric which are in evidence, including those she has purported to write before on behalf of Mr Dauguet. It contains a level of detail about dates and sequences of events which Mr Dauguet has in submissions before me disclaimed any capacity for. It contains allegations about communications to and from Pasha Legal and Mr Davison in circumstances where both those practitioners have informed the Court they only ever had instructions to act for Ms Peric. Revealingly, although purporting to be statements from Mr Dauguet, it refers in at least three places to Ms Peric’s affidavit on the joinder application as “my” affidavit. There can be little doubt in my opinion that Mr Dauguet was not responsible for the contents of this affidavit.
She and Mr Dauguet are open about the fact that it is Ms Peric who conducts any dealings with Centrelink. Perhaps, giving them both the benefit of the doubt, they do not understand it is a serious matter, to say the least, to pretend that an affidavit contains the statements of one person, when in fact they are the statements of another person. The finding I make is that this affidavit is not, on the evidence before me, an affidavit which contains statements made and composed by Mr Dauguet. It is not his evidence. In those circumstances it is insufficiently probative to be taken into account even if it were possible to overlook all the evidentiary and procedural irregularities in the way it has been put before the Court. Further, its overwhelmingly accusatory and vitriolic content also deprives it of any probative value. I have not relied on its contents in reaching my conclusions.
I should add that I have at several stages throughout this proceeding carefully considered whether the Court should take a more proactive role in making a referral under r 4.12 of the Rules for pro bono solicitors and counsel to be appointed to act for the applicant. The applicant failed, as I have noted above, to provide the necessary information setting out his financial circumstances which the Court may consider before a referral can be made: see r 4.12(2)(a). Whether this information has not been provided because Ms Peric has discouraged the applicant from providing it so that she can retain control over the proceeding is unclear. The fact is that the applicant has not provided the information.
Despite this failure, there may have been circumstances where it would be appropriate for the Court to press the applicant to provide the information in order to progress the pro bono referral. This is not one of them. First, having now examined the letters from Centrelink about the refusal of the Newstart allowance, there is still no apparent basis in the material for possible legal error. Secondly, given the sequence of events I have recounted in these reasons, I have no confidence that if solicitors and counsel were appointed, they would be able to interact with Mr Dauguet as their client in a way their professional obligations require. The inference I draw from the evidence before me is that Ms Peric would interfere and intervene so as to try and control the course of the proceeding in a way which would place any solicitor and counsel in an untenable position.
The applicant has been told on countless occasions that it is for him to conduct this proceeding. He has failed to do so. What dynamics within his relationship with Ms Peric (or any other circumstances) may have caused this, or precluded an application under r 9.63, or precluded the applicant following through on the Court’s offer of pro bono lawyers, are matters on which the Court should not speculate.
Given the applicant’s circumstances, and the relatively small number of procedural steps and appearances which have occurred in this proceeding, I do not consider it is appropriate to make an order for costs against Mr Dauguet in the proceeding. I am reinforced in that opinion by my impression that it is Ms Peric, rather than Mr Dauguet, who has pressed the continuation of this proceeding, and driven the course it has taken. Whether it is appropriate for a costs order to be made against Ms Peric may be a different matter. I will give the respondent an opportunity to consider whether to make such an application and provide submissions in support of such an application if the respondent elects to make one. The applicant and Ms Peric will both be given an opportunity to reply if such an application is made.
I certify that the preceding one hundred and seventy-four (174) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer. Associate:
Dated: 28 April 2015
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