Gibbons v DFCS

[2002] FMCA 96

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GIBBONS v DFCS [2002] FMCA 96

JUDICIAL REVIEW – Application to dismiss – ground of original application misconceived – decision made under a different section of Social Security Act 1991 (Cth) – availability of further merits reviews – Tribunal is appropriate decision-maker in matters of mixed law and fact – refusal to extend time to bring application.

Administrative Decisions (Judicial Review) Act 1977 (Cth) s.10(2)(b)(ii), s.11(1)(c),
Social Security Act 1991 (Cth) s.1224, s.1224C, s.1075
Data Matching Program (Assistance & Tax) Act 1990 (Cth)
Income Tax Assessment Act s.51

Federal Magistrates Court Rules 2001 Pt 13 R 13.10

Joanne Sawyer v Secretary, Department of Social Security [AAT No V96/229]
Secretary, Department of Social Security v Ekis (1998) FCR 382
General Steel Industries Limited v The Commissioner for Railways (1964) 112 CLR 125

Applicant: SHIRLEY GIBBONS

Respondent: The Secretary, Department of Family and Community Services

File No: CZ 12 of 2002

Delivered on: 27 May 2002

Delivered at: Canberra

Hearing Date: 16 May 2002

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: Mr J Ibarcena by leave

Solicitors for the Respondent: Mr L Leerdam of Sparke Helmore

ORDERS

1. Application for review dismissed.

2. Applicant to pay the respondent’s costs pursuant to Part 21.10 of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

CZ 12 of 2002

SHIRLEY GIBBONS

Applicant

And

THE SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

REASONS FOR JUDGMENT

1. This is an application by the respondent in the substantive proceedings to summarily dismiss those proceedings on one or all of the following bases:

   a)Under sub-paragraph 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act (“AD(JR) Act”) on the grounds that the applicant has an entitlement to seek review by both the SSAT and the AAT;

   b)Under Rule 13.10 of the Federal Magistrates Court Rules on the ground that the proceedings are frivolous, vexatious or amount to an abuse of process;

   c)By refusing to grant the applicant an extension of time to pursue this claim under sub-paragraph 11(1)(c) of the AD(JR) Act.

2. At the commencement of the hearing I made orders as follows:

   (1)Grant leave to the Applicant to file the amended application without prejudice to the respondent’s right to argue that it is out of time.

   (2)Grant leave to the Applicant to file the affidavit of Shirley Gibbons dated 10 May 2002.

   (3)Grant leave to the Applicant to amend the amended application to remove the first and second respondents and replace them with the Secretary, Department of Family & Community Services.

   (4)I give leave to the Applicant in the substantive proceedings to further amend the application to seek leave to extend the time pursuant to s.11(1)(c) of the AD(JR) Act without prejudice to the Respondent’s rights to argue that leave should not be granted.

3. The substantive application as now further amended seeks judicial review of a decision of the duly authorised delegate Mr Beacroft made on 2 July 2001 to recover a debt of $549.20 due to the respondent pursuant to s.1224…