Dos Santos v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2011] FCA 628
•30 May 2011
FEDERAL COURT OF AUSTRALIA
Dos Santos v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 628
Citation: Dos Santos v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 628 Appeal from: Dos Santos and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 128 (18 February 2010) Parties: FILOMENA DOS SANTOS v SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS File number: VID 244 of 2010 Judge: NORTH J Date of judgment: 30 May 2011 Date of hearing: 30 May 2011 Place: Melbourne Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 19 Counsel for the Appellant: The Appellant appeared in person. Solicitor for the Respondent: Ms S Koya of DLA Phillips Fox
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 244 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: FILOMENA DOS SANTOS
AppellantAND: SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
JUDGE:
NORTH J
DATE OF ORDER:
30 MAY 2011
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The proceeding is dismissed.
2.The appellant pay the respondent’s costs of the proceeding.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 244 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: FILOMENA DOS SANTOS
AppellantAND: SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
JUDGE:
NORTH J
DATE:
30 MAY 2011
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Before the Court is a motion filed by the respondent, the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, on 21 September 2010 in which the respondent seeks an order, inter alia, that this proceeding be dismissed under s 31A of the Federal Court Act 1976 (Cth) on the basis that the appellant has no reasonable prospect of successfully prosecuting the appeal.
BACKGROUND
The proceeding was commenced by a notice of appeal filed by the appellant, Ms Filomena Dos Santos, on 22 March 2010. The notice of appeal seeks to appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) and purports to state the question of law raised as follows:
Centrelink ways of dealing and misleading their clients about payments, unfairly applied.
The matter was first listed for a directions hearing before the Court on 10 May 2010. The appellant appeared at the directions hearing without legal representation. On that occasion the Court explained to the appellant that an appeal such as the present could only be brought on a question of law because the complaint flowed from a decision of the Tribunal and the appeal was thus regulated by s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The notice of appeal did not state a question of law for determination by the Court. Consequently, the directions hearing was adjourned to 26 July 2010 to allow the appellant to consider whether to amend the notice of appeal.
On 12 July 2010, the appellant filed a bundle of documents with the Court, including a document entitled ‘Amendment Form of Appeal’ in which she described her claim as follows:
Affidavit x 2 – have already been done.
1.Under the Social Security Law, I have the right to appeal.
2.Never agreed with the SS decision.
3.The right to recover the moneys I have paid and out paid for the past 18 months – more paperwork has been collected.
Thereafter the matter was listed for directions hearings on a number of occasions but was adjourned by consent, either because the appellant desired to obtain legal advice or because the respondent agreed with the appellant’s assertion that she was too ill to attend.
On 21 September 2010, the respondent filed the notice of motion currently before the Court together with an affidavit in support sworn by Mr Bryan Wee.
On 27 September 2010, Garland Hawthorn Brahe Lawyers filed a notice of appearance as solicitors for the appellant. Again, the directions hearing and the hearing of the notice of motion were adjourned by consent on several occasions for reasons similar to those given on previous occasions.
On 28 March 2011, Mr David Ramsay of Garland Hawthorn Brahe Lawyers appeared as solicitor for the appellant. This was the first occasion that the appellant appeared before the Court with legal representation. The Court again explained the deficiencies in the appellant’s purported notices of appeal. At the request of Mr Ramsay, the Court adjourned the directions hearing and hearing of the notice of motion to provide the appellant with a final opportunity to file any further amended notice of appeal which included reference to the question or questions of law to be addressed by the Court.
On 27 May 2011, Garland Hawthorn Brahe Lawyers wrote to the Court in relation to the hearing listed for today. They indicated that they had served on the appellant a notice of intention to withdraw as her solicitor under O 45 r 7 of the Federal Court Rules. They indicated that, consequently, they would not be appearing on behalf of the appellant today, on 30 May 2011.
SUBMISSIONS OF THE APPELLANT
The appellant appeared today without legal representation. In effect she sought one last adjournment of the notice of motion. When asked to outline her grounds for a further adjournment, she stated that Centrelink had made a big mistake against her. It had acted unfairly. She said that she could prove it. She said that she had done everything that Centrelink had asked her. She asserted that she had sent all her relevant records to Centrelink and they had never accounted to her for them. She said she had been underpaid by Centrelink. She further said that as a result of Centrelink’s actions, her uncle, for whom she had received a Disability Support Pension, had contracted cancer and her brother had been hospitalised for a significant period.
THE DECISION OF THE TRIBUNAL
The appeal arises out of a decision of the Tribunal made on 18 February 2010, which affirmed a decision of the Social Security Appeals Tribunal (SSAT) made on 2 April 2009. In that decision, the SSAT affirmed the decision of a Centrelink authorised review officer to cancel the Carer Payment which the appellant had received since August 2002 in respect of her mother, and later her uncle, and to raise and recover a debt amounting to $43,652.60 for payments which should not have been made to her.
The SSAT also affirmed a decision of a Centrelink authorised review officer to reject an application for the Carer Payment in respect of the appellant’s uncle.
In relation to the decisions to cancel the appellant’s Carer Payment and recover the debt owed to Centrelink, the Tribunal affirmed the decision of the SSAT on the basis that the records indicated the appellant had received an income averaging over $177,000 per year during the period of receiving the benefits and this well exceeded the limit of income allowable for entitlement to Centrelink social security payments.
Further, the Tribunal affirmed that the debt owed to the Commonwealth could not be written off or waived under the Social Security Act 1991 (Cth) because the debt arose from the appellant failing to notify Centrelink about the income she received in the relevant period.
In relation to the rejection of the appellant’s application for the Carer Payment in respect of her uncle, the Tribunal accepted the correctness of the decision of the SSAT on the basis that the appellant had failed to provide financial information to enable Centrelink to determine her eligibility.
CONSIDERATION
The appellant’s purported notices of appeal do not state any questions of law in compliance with s 44(1) of the AAT Act. Whilst the purported notices of appeal do not, on their face, reveal any question of law which could be the subject of an appeal, it is appropriate to scrutinise the decision of the Tribunal to determine whether there is any question of law which arises, and which may have been the motivation for the appellant to bring the matter before the Court. No such question of law arises from the reasoning of the Tribunal.
The appellant has had about a year to address the issue of her complaint about the decision of the Tribunal. The Court and the respondent have exercised excessive patience in permitting the appellant to bring her case within the legal requirements of the AAT Act. Her inability to do so, coupled with the Court’s examination of the decision of the Tribunal, lead to the conclusion that there is no reasonable prospect of her successfully prosecuting the appeal.
In any event, it is sufficient for the purposes of this application that the appellant has failed to comply with the requirements of O 53 r 2 of the Federal Court Rules which demand that the notice of appeal substantially conform with Form 55A in Schedule 1 of the Federal Court Rules, stating the questions of law which must be addressed in the appeal.
For those reasons, the proceeding is dismissed.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 3 June 2011
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