Dauguet v Centrelink

Case [2015] FCA 395

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, 9.63
Cases 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 366
Dates 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

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AGLC
Dauguet v Centrelink [2015] FCA 395
Case
[2015] FCA 395
Decision Date

CaseChat Overview and Summary

Dauguet v Centrelink involved a legal dispute where the applicant, Mr. Dauguet, contested decisions made by Centrelink regarding his eligibility for various social security payments. The Federal Court was tasked with determining whether to dismiss the application due to procedural non-compliance and to consider an application by Ms. Peric to join the proceedings. The core legal issues centred on the appropriateness of dismissing the application under the Federal Court Rules and the ADJR Act, considering the availability of merits review and the applicant's failure to engage with the review process. Additionally, the court needed to decide whether Ms. Peric should be allowed to join the proceedings, given her relationship to the applicant. The court concluded that the application should be dismissed based on the applicant's failure to pursue merits review and non-compliance with court directions. The court also ruled that Ms. Peric's application to join the proceedings was not warranted as her relationship with the applicant did not sufficiently justify her inclusion. Consequently, the court dismissed the proceeding and ordered the applicant to pay the respondent's costs. The court provided an opportunity for the respondent to apply for Ms. Peric to also contribute to the costs if desired.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 SSATThe 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.

Ratio Decidendi

Legal Principle Established

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.