Gibbons v DFCS
[2002] FMCA 96
•27 May 2002
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
Application for review dismissed.
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
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.
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.
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 of Social Security Act 1991 (Cth) (“The SSA”). The debt is in relation to an alleged overpayment of parenting payment to the applicant, although it appears that the money was actually repaid by her to the department and is no longer owing. I assume she wishes to recover this sum. The grounds upon which the overpayment was made are set out in the decision letter but relevantly for this case arise out of an assessment of the income of the applicant’s partner during 1998. That income was calculated using procedures laid down in the Data-Matching Program (Assistance & Tax) Act 1990 (Cth) (“The Data Matching Act”). The debt alleged under s.1224 is stated to be owed under s.1224(1)(b)(i) as opposed to s.1224C which is described as “Data-Matching Program (Assistance & Tax) Act debts”.
This application can be speedily dealt with when one looks at the grounds upon which Ms Gibbons seeks judicial review. The grounds contained in the amended application involve claims that provisions of the Data Matching Act were not complied with and that this constituted a fraud. The applicant also alleges that the respondent wrongfully refused to calculate Mr Ibarcena’s income for the purposes of the Social Security Act because he did not take into account losses experienced by Mr Ibarcina in his business and deduct those from his other earnings.
In regard to the first complaint Ms Gibbons relies upon a decision of the AAT (Joanne Sawyer v Secretary, Department of Social Security [AAT No V96/229]) made on 6 September 1996. I am advised by the respondent that the forms which were criticised in that decision were changed thereafter and were not utilised in respect of the decision of which Ms Gibbons complains. It seems to me that an examination of the extent to which the Act was or was not complied with (should this be necessary) is ideally suited to a merits tribunal and that this view is confirmed by the fact that the Sawyer case was decided by such. However, there seems to be a more serious problem facing the applicant. The debt claimed is not claimed under s.1224C but under s.1224. In those circumstances the problems with the Data Matching Act would appear not to be relevant.
The second limb of Ms Gibbon’s application depends upon a finding of whether or not Mr Ibarcena was employed. If, as the decision maker found, he was an employed person then there is no leeway in the Act for any deduction for expenses or losses (Secretary, Department of Social Security v Ekis (1998) FCR 382). The question of whether Mr Ibarcena was an employee or not is a mixed question of fact and law and again one that is most appropriate to the Tribunal. In Ekis Drummond J remitted this question back to the Tribunal after deciding that it had originally approached it in the wrong manner.
Because there are still matters of fact to be determined which may confirm the decision maker’s view or may substitute another decision I would not be inclined to dismiss this application pursuant to Rule 13.10 of the Federal Magistrates Court Rules. I believe I should exercise the caution identified in General Steel Industries Limited v The Commissioner for Railways (1964) 112 CLR 125 and decline to make the order on that basis. This leaves the question of extension of time and the consideration of the matter under s.10(2)(b)(ii) of the AD(JR) Act.
I was told by the advocate for the Department that there was no bar to Ms Gibbons seeking a further merits review of the decision before the SSAT and that if he was wrong in that statement the Department undertook not to raise any time bar against such an application. This will provide Ms Gibbons with an appropriate forum in which to raise the concerns expressed in her current application. It provides her with more. If she does not like the conclusion she may seek a further review before the AAT and if she is unhappy with that on a point of law she may seek review again from this court. All those things can be done in time and by the persons most appropriate to the task. I would be prepared to exercise the powers given to this court under s.10(2)(b)(ii) of the AD(JR) Act on the grounds that adequate provision is made under which the applicant is entitled to seek a review by another Tribunal. I would dismiss the application on that ground.
The applicant needed leave to bring this application out of time. At nine months since the decision it is severely out of time. The amount of money involved is very small at $549.20. The case as currently presented to me has very limited prospects of success. In none of the papers that I have seen does Mr Ibarcena mount any challenge to the finding of the decision maker that he was an employee, which would be essential for Ms Gibbons to have any prospect of success. A point he raises about the treatment of his income for tax purposes appears to me to be raised in the context of s.1075 of the SSA on the basis that business losses, which are deductible under s.51 of the ITAA, should be deductable in calculating entitlements under the SSA. He first needs to establish that he is not an employee to raise this question of law. If I am wrong in my interpretation of his submission then it would still be my view that he has waited too long and sought relief from the wrong place. Taking all the circumstances into consideration, including the applicant’s ability to bring this matter back to the Federal Magistrates Court after two more merits reviews, I would accept the respondent’s submissions and decline to grant leave for any extension of time in which to bring this application.
I dismiss the application for review. I order that the applicant pay the respondent’s costs pursuant to Part 21.10 of the Federal Magistrates Court Rules. I certify that it was appropriate for the respondent to employ an advocate pursuant to Part 21.15.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: