Dunning v Secretary, Department of Family and Community Services

[1999] FCA 1081

FEDERAL COURT OF AUSTRALIA

Dunning v Secretary, Department of Family & Community Services [1999] FCA 1081

ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – claim for farm household support – motion seeking summary dismissal – whether no reasonable basis of appeal – whether any question of law disclosed by appeal.

Federal Court Rules, Order 20, rule 2
Farm Household Support Act 1992 (Cth), Part 3, s 4, s 7, s 9, s 12
Administrative Appeals Tribunal Act 1975 (Cth), s 44

PHILLIP MARK DUNNING v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

V 255 of 1999

KENNY J
MELBOURNE
4 AUGUST 1999

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 255 OF 1999

BETWEEN:	PHILLIP MARK DUNNING Applicant
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Respondent
JUDGE:	KENNY J
DATE OF ORDER:	4 AUGUST 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The proceeding be dismissed.

2.The motion, notice of which is dated 29 July 1999, be dismissed.

3.The applicant pay the respondent’s costs fixed in the sum of $700.00.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 255 OF 1999

BETWEEN:	PHILLIP MARK DUNNING Applicant
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Respondent

JUDGE:	KENNY J
DATE:	4 AUGUST 1999
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

1. By notice of motion dated 29 July 1999, the applicant seeks leave to amend a notice of appeal filed by him on 19 May 1999.  By the proposed amended notice of appeal, the applicant seeks orders that the Court:

   Transfer Newstart to either farm household support or business and self-employment payment.

   The nominated grounds are:

   Documents business and self-employment payment Centrelink.
   Copy partnership.
   Letter National Bank rejecting loan application.
   Power account farm Avon Loc 12757 Dowerin.
   Letter Northam police concerning equipment removal.

2. By notice of motion dated 17 June 1999, the respondent seeks an order, pursuant to Order 20, rule 2 of the Federal Court Rules, that the proceeding be dismissed.  The respondent’s motion was supported by an affidavit sworn by Joanne Marie Girgenti on 17 June 1999.  The respondent opposes the grant to the applicant of leave to amend the notice of appeal on the basis that, even if the amendments were made as the applicant proposes, the appeal must necessarily fail. 

3. The applicant, Mr P M Dunning, has been on notice for some time of the position taken by the respondent.  By letter dated 10 June 1999, the respondent advised the applicant that he intended to seek the summary dismissal of the appeal.  As already noted, the respondent has had a notice of motion to that effect on foot since 17 June 1999.  At a hearing on 14 July 1999, a registrar of the Court and a representative of the respondent sought to explain to Mr Dunning the requirements of an appeal from the Administrative Appeals Tribunal (“the Tribunal”) to this Court.  The further hearing of the respondent’s motion was adjourned to today in order that Mr Dunning might consider his position.  I again sought to explain to Mr Dunning today the requirements of an appeal to this Court, and I adjourned the hearing for a short while in order that Mr Dunning might receive some assistance from a Court registrar.  I do not think anything is to be served by further delaying the determination of the respondent’s motion.

4. The applicant seeks to appeal from a decision of the Tribunal constituted by Mr W G McLean made on 5 May 1999.  That decision was to affirm a decision of the Social Security Appeals Tribunal made on 11 December 1998 affirming a decision to reject the applicant’s claim for farm household support lodged on 6 September 1998. 

5. Mr Dunning has apparently been receiving a Jobstart/Newstart allowance since 11 September 1991.  He had, it seems, received the allowance in Western Australia until April 1993 and thereafter he received it in Victoria.  Mr Dunning had, it appears, been in a family farming business partnership in Dowerin, Western Australia.  On his father’s death in 1995, Mr Dunning inherited a share of the farming property.  (Other pertinent facts, as the Tribunal found them, are set out in the Tribunal’s reasons for decision.  No useful purpose is, I think, served by re-stating them again.) 

6. The making of claims for farm household support is the subject of Part 3 of the Farm Household Support Act 1992 (Cth) (“the Act”).In its reasons for decision, the Tribunal specifically referred to sections 4, 7, 9 and 12 of the Act, as well as to the definition of “farmer” in s 3(2). Section 7 sets out the qualifications for farm household support. It provides:

   Subject to this Division, a person is qualified for farm household support in respect of a period if, throughout the period:

   (a)the person:

   (i)is a farmer; and

   (ii)is at least 16; and

   (iii)is an Australian resident; and

   (iv)is in Australia, and

   (b)a certificate of inability to obtain finance issued in respect of the person has effect.

   [Emphasis added]

7. A “farmer’ is defined in s 3(2) as a person who:

   (a)has a right or interest in the land used for the purposes of a farm enterprise; and

   (b)contributes a significant part of his or her labour and capital to the farm enterprise; and

   (c)derives a significant part of his or her income from the farm enterprise.

   Section 4 concerns a “certificate of inability to obtain finance”. Section 4 provides:

   (1)A certificate of inability to obtain finance is a certificate, in a form approved by the relevant Secretary, provided to the Secretary of the Department of Social Security by a finance institution in respect of a farmer and stating that:

   (a)    the farmer has applied to the institution for a loan; and

   (b)    the institution does not propose to make any loan to the farmer because of the farmer’s financial situation.

   (2)Subject to subsection (3), a certificate in respect of a farmer has effect:

   (a)     if it was issued within 30 days (or within such further period as the Secretary of the Department of Social Security allows) after the day on which the farmer made a claim for farm household support or restart income support, or an application for a re-establishment grant – for a period of 6 months from that day; or

   (b)     in any other case – for a period of 6 months from the day on which it was issued.

   (3)A certificate in respect of a farmer ceases to have effect if a finance institution makes a loan to the farmer.

   (4)In this section:

   relevant Secretary means:

   (a)     in relation to farm household support – the Secretary of the Department of Primary Industries and Energy; … .

8. The Act stipulates that a farm household support is not payable in certain situations. Paragraph (c) of s 9(1) provides:

   Farm household support is not payable to a person for a period during which the person is qualified for farm household support if during that period:

   … .

   (c)   another support payment is being paid to the person (see section 12).

   Section 12(1) provides:

   Farm household support, exceptional circumstances relief payment or restart income support is not payable to a person if the person is receiving a social security benefit, a social security pension or a service pension.

9. In its reasons for decision, the Tribunal stated:

   Mr Dunning was unable or unwilling to give evidence in support of his contention that while living in Victoria he had been contributing a significant part of his labour and farm capital to his Western Australian farm enterprise and that he has derived a significant part of his income from his farm enterprise.  He contends that the reason he came to Victoria in 1993 was to pursue legal claims associated with his farm, but he could not satisfactorily explain the nature of these claims or how he had pursued them.

   The Tribunal further stated that:

   Mr Dunning did not provide the Tribunal with any documentary or oral evidence that he had obtained a certificate of inability to obtain finance in the form specified by section 4 of the Act which is required to qualify for [farm household support] pursuant to section 7 of the Act.

   Ultimately, the Tribunal found that:

   Mr Dunning has received a Social Security benefit since September 1991 and accordingly, the [farm household support] is not payable to him pursuant to sections 9 and 12 of the Act.

   The Tribunal also found that:

   The evidence indicates that Mr Dunning has not satisfied the statutory definition of requirements for a “farmer” since he came to live in Victoria in 1993. The Tribunal is satisfied that Mr Dunning has not contributed a significant part of his labour or capital to the farm enterprise, nor has he derived a significant part of his income from the farm enterprise in accordance with the definition of a “farmer” prescribed by section 3 of the Act.

   Accordingly, the Tribunal affirmed the decision under review.  The Tribunal’s decision necessarily follows from the findings it made and from the provisions set out above (and to which the Tribunal specifically referred). 

10. Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) provides that a party to a proceeding before the Tribunal may appeal to this Court, on a question of law, from any decision of the Tribunal in that proceeding. Neither Mr Dunning’s original notice of appeal nor his proposed amended notice of appeal discloses any question of law that could constitute the basis of an appeal under s 44 of the Administrative Appeals Tribunal Act 1975.  Nothing said by Mr Dunning today inclines me to the view that there is an as yet unformulated question of law arising from the Tribunal’s decision that might form the basis of an appeal to this Court.  In my view, Mr Dunning’s appeal, as both presently constituted and proposed, is hopeless.  The proceeding instituted by Mr Dunning is foredoomed to fail.

11. Accordingly, I would grant the relief that the respondent seeks, and I would dismiss the proceeding.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate:

Dated:             4 August 1999

Counsel for the Applicant:	Self-represented
Solicitor for the Applicant:	Self-represented
Counsel for the Respondent:	Mr R Frazzetto
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 August 1999
Date of Judgment:	4 August 1999