Dudzinski v Harris - [2003] FCA 440

FEDERAL COURT OF AUSTRALIA
Dudzinski v Harris [2003] FCA 440
SOCIAL SECURITY – where entered Newstart Allowance Activity Agreement – where referred for intensive assistance – where rescind from agreement – where error in employment record – whether satisfied activity test – whether acted in bad faith or dishonestly – whether adequate notice – whether agreement misrepresented – whether Newstart Activity Agreement is agreement for purposes of Social Security Act 1991 (Cth) – whether entitled to Newstart Allowance – whether entitled to Newstart Allowance whilst case is reviewed – where did not seek review in Administrative Appeals Tribunal.
Judiciary Act 1903 (Cth) s 39B
Social Security Act 1991 (Cth) ss 23, 593, 596, 596A, 597, 598, 601, 601(1), 601(5), 604, 604(1B), 604(1C), 605(2), 605(3), 606, 606(1), 607, 1242A
Social Security (Administration) Act 1999 (Cth) s 196
Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 applied
WALDEMAR DUDZINSKI AND ANNA DUDZINSKI v BRIAN HARRIS, STEVE UHLMANN, S M ROSSINGTON AND DAVID ROSALKY
Q 61 OF 2001
DOWSETT J
13 MAY 2003
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 61 OF 2001

BETWEEN:

WALDEMAR DUDZINSKI
FIRST APPLICANT

ANNA DUDZINSKI
SECOND APPLICANT

AND:

BRIAN HARRIS
FIRST RESPONDENT

STEVE UHLMANN
SECOND RESPONDENT

S M ROSSINGTON
THIRD RESPONDENT

DAVID ROSALKY
FOURTH RESPONDENT

JUDGE:

DOWSETT J

DATE OF ORDER:

13 MAY 2003

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.        The application be dismissed.
2.        The second applicant pay the respondents’ costs of the application.
Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 61 OF 2001

BETWEEN:

WALDEMAR DUDZINSKI
FIRST APPLICANT

ANNA DUDZINSKI
SECOND APPLICANT

AND:

BRIAN HARRIS
FIRST RESPONDENT

STEVE UHLMANN
SECOND RESPONDENT

S M ROSSINGTON
THIRD RESPONDENT

DAVID ROSALKY
FOURTH RESPONDENT

JUDGE:

DOWSETT J

DATE:

13 MAY 2003

PLACE:

BRISBANE

REASONS FOR JUDGMENT

The first applicant has been dismissed from these proceedings. It is not necessary to say anything more about his claims. The second applicant’s claims concern her entitlement to what is described as “Newstart Allowance” during the latter part of the year 2000 and early 2001. The various respondents are, to use neutral language, public servants engaged in the administration of various aspects of the social security system. For present purposes it may be accepted that the second applicant seeks relief against the Commonwealth or an officer or officers thereof pursuant to s 39B of the Judiciary Act 1903 (Cth) (the “Judiciary Act”). She claims such relief upon the basis that she has been denied her entitlement to Newstart Allowance. I will refer to the relevant government agency as “Centrelink”. This was the course adopted at the hearing. I will include in that description the Secretary of the relevant Department who has particular powers under the Social Security Act 1991 (Cth) (the “Act”).
As to the facts of the case, I generally accept the version of events given by Mr Uhlmann…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dudzinski v Harris

Details

AGLC: Dudzinski v Harris [2003] FCA 440
Case: [2003] FCA 440
Decision Date: 13 MAY 2003

CaseChat Overview and Summary

In Dudzinski v Harris, the second applicant sought to continue her Newstart Allowance and her partner's entitlements pending a review of a decision made by Centrelink. This was treated as an application for continued payments under s 1242A of the relevant Act, which pertains to review of a decision under s 607. The applicant argued that Centrelink should have treated the situation as analogous to the failure to enter into an agreement described in s 607, but the court found that the circumstances did not align with that section. The court held that the situation contemplated by s 607 involves a failure to enter into an agreement, whereas the applicant had entered into an agreement and then resiled from it. The court concluded that Centrelink did not act pursuant to s 607 and, therefore, no entitlement under s 1242A arose.

The court examined whether the applicant's arguments for continued relief were correct in law. It was determined that they were not, as the applicant's complaints did not lead to the relief sought. The court noted that the applicant had availed herself of internal merits review and the right to further review in the Social Security Appeals Tribunal, where she was unsuccessful. Although the applicant was also entitled to seek review in the Administrative Appeals Tribunal, she did not exercise this right. Given these circumstances, the court would usually deny prerogative relief, but ultimately found it unnecessary to resolve that aspect of the case.

The court dismissed the application and ordered that the second applicant pay the respondents' costs of the application. This decision highlights the importance of understanding the specific provisions of the relevant Act and the distinctions between different sections when making applications for continued payments. The court's reasoning underscores the necessity for applicants to exhaust all available review processes before seeking further relief.

Orders

Orders of the court

1. The application be dismissed.

2. The second applicant pay the respondents’ costs of the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DOWSETT J

In her letter received on 4 December, the second applicant asked that her Newstart Allowance and her partner’s entitlements continue, pending review of the relevant decision. This was treated as an application for payments to be continued pursuant to s 1242A of the Act. The second applicant has not sought to justify the application on any other basis. That section relates to review of a decision under s 607. The section provides that where a person unreasonably fails to attend to negotiate such an agreement, to respond to relevant correspondence or to agree to proposed terms of such an agreement, Centrelink may give notice that the relevant person has failed to enter into an agreement as required by the Act. Such a notice must be in writing, set out the reasons for the decision and include a statement describing the person’s right to apply for review. Although the situation which arose in this case was, in some respects analogous to that described in s 607, Centrelink did not purport to act pursuant to that section. The circumstances there contemplated involve failure to enter into an agreement. The section says nothing about what is to happen in the event that somebody enters into an agreement and subsequently resiles from it. If the negotiation process were to recommence, then the situation contemplated in s 607 might well arise, but that is not to the point. Despite the available analogies between the circumstances described in s 607 and those presently under consideration, I do not consider that Centrelink acted, or could have acted pursuant thereto. In those circumstances no entitlement pursuant to s 1242A arose.CONCLUSION It follows that the second applicant is not entitled to the relief sought. Her arguments are simply incorrect in law. It is not necessary to decide whether her complaints are of the kind which are capable of leading to such relief. Even if she had a prima facie case for that relief, I would have been inclined to exercise the general discretion to refuse it. She has availed herself of internal merits review and of the right to further review in the Social Security Appeals Tribunal, where she was unsuccessful. It seems that she was also entitled to seek review in the Administrative Appeals Tribunal. Such right was not exercised. For that reason prerogative relief would usually be denied. However it is not necessary that I finally resolve that aspect of the case. The application will be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Established by: DOWSETT J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 61 OF 2001

BETWEEN:	WALDEMAR DUDZINSKI FIRST APPLICANT ANNA DUDZINSKI SECOND APPLICANT
AND:	BRIAN HARRIS FIRST RESPONDENT STEVE UHLMANN SECOND RESPONDENT S M ROSSINGTON THIRD RESPONDENT DAVID ROSALKY FOURTH RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	13 MAY 2003
WHERE MADE:	BRISBANE

JUDGE:	DOWSETT J
DATE:	13 MAY 2003
PLACE:	BRISBANE