Garvey v Secretary, Department of Family and Community Services

[2003] FCA 340

FEDERAL COURT OF AUSTRALIA

Garvey v Secretary, Department of Family & Community Services
[2003] FCA 340

ROBERT JOSEPH BARRY GARVEY v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Q 1 OF 2003

DOWSETT J
2 APRIL 2003
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 1 OF 2003

BETWEEN:	ROBERT JOSEPH BARRY GARVEY APPLICANT
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	2 APRIL 2003
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The notice of appeal filed 7 January 2003 be struck out.

2.The applicant pay the respondent’s costs of the appeal and the costs of the application to strike out, including the costs of today.

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 1 OF 2003

BETWEEN:	ROBERT JOSEPH BARRY GARVEY APPLICANT
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT

JUDGE:	DOWSETT J
DATE:	2 APRIL 2003
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. In December 1985 the applicant, Robert Joseph Barry Garvey, applied for an invalid pension pursuant to the provisions of s 30 of the Social Security Act 1947 (Cth) (“the Act”). The application was refused. An application for merits review in the Administrative Appeals Tribunal and an appeal to this Court were both unsuccessful. The reasons of the Full Court appear reported subnomSecretary, Department of Social Security v Garvey (1989) 91 ALR 245. Mr Garvey tells me that he applied for special leave to appeal to the High Court from that decision, but was unsuccessful. It seems that he has never accepted the correctness of that decision, and of course that is his right. However, he is bound by it, as is the Department, and as am I. He has sought, on a number of occasions, to have the decision revisited, the most recent of which resulted in a hearing in the Administrative Appeals Tribunal before Deputy President Muller.

2. The Deputy President considered various factual matters which Mr Garvey sought to ventilate, but again determined that the original decision was correct and that factual matters raised by Mr Garvey did not undermine the correctness of that decision.  It is not clear to me that the Deputy President was entitled to revisit the matter in this way.  Mr Cosgrove, who appears for the Department today, has been unable to point to any basis for such further consideration of the decision.  In any event, Mr Garvey seeks to appeal from the decision of the Deputy President, citing the following question of law: 

   The definition of ‘income’ in the Social Security Act which applied to the Applicant at the time he originally applied for an invalid pension had a different meaning in law to the legal interpretation which was incorrectly used to decline the Applicant an invalid pension.

3. The following orders are sought: 

   That the Applicant’s original claim for an invalid pension be reassessed in accordance with the correct interpretation of the definition of income enunciated by Spender J of the Federal Court. 

4. It is then asserted that:

   Changes in the legislation altered, not simply clarified, the definition of income and the Applicant’s claim for an invalid pension should have been assessed under the law as it stood prior to amendments to the legislation as such amendments were not expressed to be retrospective.

5. Two matters require explanation. The reference to Spender J is to his Honour’s decision at first instance in the matter which was eventually resolved adversely to Mr Garvey in the Full Court. The reference to changes in the legislation relate to amendments to the Act which were made after Mr Garvey’s 1985 application. That application is erroneously described in the notice of appeal as having been made in December 1995.

6. Mr Garvey has, in material filed in these proceedings, again sought to ventilate the facts of the case as they concerned his income at the relevant time.  He has made it clear to me that his application is to revisit the December 1985 application, and not to make, at the moment, any new application.  As it seems to me, the fate of that application was finally determined by the proceedings in the Full Court in which judgment was given on 7 December 1989. 

7. Mr Garvey’s concern appears to be that the facts, as apprehended and presented at that time, and the law as applied by the Court, involved error.  Whether this is so or not, it is not a matter which can be revisited now.  It may be that the Administrative Appeals Tribunal was without jurisdiction, although that matter has not been argued before me.  In any event, the order which was made appears to me to have been correct.  The application for further review was doomed to failure simply because the matter had already been finally resolved by the decision of the Full Court.  In those circumstances, the Department now seeks some final resolution of the proceedings.  I therefore order that the notice of appeal filed in this Court on 7 January 2003 be struck out.  I also order that the applicant pay the respondent’s costs of the appeal and the costs of the application to strike out, including the costs of today. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:            16 April 2003

The Applicant appeared In Person.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 April 2003
Date of Judgment:	2 April 2003