Jones v Centrelink - [2005] FMCA 1165

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JONES v CENTRELINK & ANOR

[2005] FMCA 1165

ADMINISTRATIVE LAW – Extension of time to bring application – relevant considerations – claim under ‘Compensation for Detriment Caused by Defective Administration’ Scheme – whether scheme an enactment – whether scheme an instrument – whether applicant is able to demonstrate prospect of success.

Administrative Decisions (Judicial Review) Act 1977, ss.3, 5, 11(1) and (3)
Social Security Act 1991, s.1169
Ombudsman Act 1976, ss.5, 6 and 15

Smith v Oakenfull [2004] FCA 4
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Kristofferson v Deparment of Employment Workplace Relations & Small Business [2002] FCA 755

Applicant:

REX DOUGLAS JONES

First Respondent:

CENTRELINK

Second Respondent:

THE COMMONWEALTH OMBUDSMAN

File Number:

BRG162 OF 2004

Judgment of:

COKER FM

Hearing date:

4 MAY 2005

Delivered at:

TOWNSVILLE

Delivered on:

18 AUGUST 2005

REPRESENTATION

Applicant:

Self-represented

Counsel for First and Second Respondents:

MR Swan

Solicitors for First and Second Respondents:

Australian Government Solicitor

ORDERS

That the application filed 30 March 2004 be dismissed.
That leave be granted to either party to file and serve written submissions in relation to costs with 21 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
TOWNSVILLE

BRG162 OF 2004

REX DOUGLAS JONES

Applicant

And

CENTRELINK

First Respondent

And

THE COMMONWEALTH OMBUDSMAN

Second Respondent

REASONS FOR JUDGMENT

On 30 March 2004, Rex Douglas Jones, applied for orders before this Court. The terms of the orders sought were as follows:
An extension of time in which to file and serve ADJR application in respect of decisions of the Federal Agency Centrelink and the Commonwealth Ombudsman.
Following the filing of that material, a notice of address for service was filed on 13 May 2004 on behalf of the respondents and directions were given on 18 May 2004.
Subsequent to those directions being made, the matter was listed for a half day hearing on 10 August 2004 and further applications were then dealt with as and when it became relevant. One of those applications was a motion to dismiss, which was filed by the applicant after an extension was granted by Registrar Baldwin. The application to dismiss of 15 June 2004 was subsequently dealt with and another motion of 30 June 2004 was filed by the applicant seeking to strike out the motion of the respondent.
In the end, the matter was to proceed. The directions for hearing on

10 August 2004 were then put in place and directions were made which included a direction for the filing of a supplementary list or detail of submissions by the respondent, to be provided by 20 August 2004, further submissions if to be made, were to be filed by the applicant by 3 September 2004, and the matter was then to be listed for hearing on a date to be fixed.
Notification was given of the listing of the matter by correspondence. The parties were informed on 18 January 2005 of the listing of the matter for 7 April 2005. On 15 February 2005, a compliance check, to ensure the matter's readiness in all respects was conducted. There was no appearance by the applicant on that day other than notification given by him in these terms, “the matter was, ready to go."
There were then further steps taken with regard to ensuring that the matter could proceed, however, on 6 April 2005, the day prior to hearing, email notification was received at 12.31 pm from the applicant advising of difficulties with regard to his attendance. Further notification was then received by phone on the same day at 2.07 pm and an email was, again, sent by the applicant in relation to his unavailability to attend upon the hearing.
Notice was given that the matter would proceed, whether the applicant attended or not. Subsequently he did attend. However, the matter did not proceed due to the matter being listed before Baumann FM rather than Coker FM, who had heard previous submissions and addresses. The matter then finally was heard or completed on 4 May 2005, when both the applicant and the respondent had the opportunity to further address, in relation to their submissions.
By way of some history or background in relation to the matter, the particulars are as follows:
The applicant suffered a serious work related injury as a result of an accident in 1988. In 2000, a panel of two expert psychiatrists, confirmed that the applicant sustained a 35 per cent, whole of person disability, as a result of post traumatic stress disorder. After receiving a lump sum payment, the applicant wrote to Centrelink on 7 August 2002 requesting assistance. His application was dealt with as if it were an application for a disability support pension, (a DSP).
A DSP was processed and backdated to commence on and from

25 September 2002. By letter of 10 September 2002, the applicant then sought compensation, pursuant to the Commonwealth scheme for "Compensation for Detriment caused by Defective Administration" (the CDDA Scheme). By letter, dated 18 November 2002, the applicant quantified what he said was his loss, as a result of the detriment, at $12,720. This was calculated by him under various claimed heads.
Centrelink rejected the claim by letter of 25 November 2002, but ultimately by letter, dated 29 January 2003, Centrelink accepted that there was some liability that fell upon them, for detriment caused as a result of the administration of the claim. Centrelink then accepted liability for the period from the date it received the claim for review, to the date that the applicant received the DSP. An amount was paid by Centrelink, in the sum of $1256.40.
On 30 April 2003 Centrelink wrote to the applicant rejecting all other claims (the Centrelink decision). The applicant seeks judicial review of the Centrelink decision.
It seems that on 13 May 2003, only some two weeks later, the applicant by letter of that date, sought assistance from the Commonwealth Ombudsman's office, to investigate the refusal by Centrelink not to accept his full CDDA claim. A decision by the Ombudsman's office, after investigation, that the applicant had been adequately compensated and no undue delay had occurred, was made and the investigation was discontinued.
This was discontinued pursuant to the provisions of section 6 of the Ombudsman's Act 1976. This decision was made on 21 July 2003, ("the Ombudsman's decision"). A review, at the request of the applicant, was undertaken by the acting senior Assistant Ombudsman Social Support Team, who, by decision on 5 September 2003, rejected the applicant's request that the Ombudsman make a recommendation under section 15 of the Ombudsman's Act to Centrelink, to pay compensation.
That is the basis upon which the applications, made by the applicant, have been brought. Basically, there are two decisions that the applicant says should be the subject of judicial review. Both the applicant and the respondent have provided detailed submissions in relation to these proceedings. I have had the opportunity of carefully reading and considering those submissions and have also had the opportunity of hearing the further submissions, made by both the applicant and counsel for the respondent. The fact is that there is a significant dispute between the applicant and the respondent, as to the manner in which the proceedings should be dealt with.

The Law

I am satisfied in respect of the Centrelink decision that upon the authority of Smith & Oakenfull (2004) FCA 4 that there should be consideration of the terms of that decision. Smith & Oakenfull dealt with the issue of the CDDA Scheme and His Honour Dowsett J, gave particular reasons in relation to the manner in which such a scheme should be dealt with, particularly, when one is dealing with the provisions of the ADJR Act.
Although, I may not be strictly bound to follow the decision the fact is that the Superior Court Justice undertook an examination of the CDDA Scheme and of the legislation and appropriate course to be followed in relation to same. Dowsett J found that:
The document, the CDDA Scheme, cannot be classified as an instrument for the purposes of the ADJR Act. As a result of that decision any decision made in relation to the CDDA Scheme is not one that is reviewable under the ADJR Act.
I agree with that analysis and the conclusions of the Superior Court Judge. As a result of that determination, there is no utility or benefit to the applicant in allowing any extension of time in relation to a review of that decision. The fact is, that the application by the applicant, for an extension of time should be dismissed as there is no merit in a claim in relation to administrative decision judicial review, where the basis upon which the decision has been made, is not one which is subject to administrative decision judicial review. The application in relation to the Centrelink decision must, therefore, fail at the very beginning.
The Ombudsman's decision, however, is in a different category. The legal representatives for the respondents conceded, that the decision of the Ombudsman was one that was reviewable under the ADJR Act. The respondent says, however, that there is a stepping stone or a precursor required to be dealt with by the applicant, in relation to explaining delay, in respect of the proceedings. The respondent has provided significant detail in its written submissions as to why it contends that there is:
(a)no acceptable explanation for the delay, and
(b)there are no reasonable prospects of a successful review, and
(c)that in any event some of the remedies sought by the applicant are simply not available under the ADJR Act.
Quite simply, the respondent submits that the application for an extension of time should be dismissed, because there is no proper evidence presented by the applicant, in relation to an explanation as to the delay, in respect of the bringing of the application. In submissions, the respondent says that the applicant has lodged his application for an extension of time, some 11 months after reasons for the earlier decision, that being the Centrelink decision, were delivered on 30 April 2003 but, more particularly, in light of the findings that I have already made, that it is almost 7 months after the reasons for the final decision of the Ombudsman were delivered.
There is no explanation provided in relation to the delay. However, the applicant says that that is not the case and I will address certain of those matters a little later in these reasons. What is clear is that the applicant, whilst suffering a 35 per cent overall whole of person disability, as a result of post traumatic stress disorder, was able to deal promptly with issues that arose in relation to the decisions of Centrelink and the steps that were taken with regard to bringing the matter, before the Commonwealth Ombudsman.
This is evidenced, as I have already commented, by the fact, that within two weeks of the decision being made by Centrelink, an application was made for reconsideration of the position by the Ombudsman. It is clear that throughout the ensuing correspondence between the Ombudsman's office, Centrelink and the applicant, that the applicant has been able to respond quickly to issues in relation to matters before the Ombudsman or Centrelink and to deal with decisions that were made.
What is argued on the part of the respondent, therefore, is that there is an inordinate and unexplained delay in applying for judicial review of the decision of the Ombudsman, and it cannot be attributable simply to the applicant not knowing the reasons for that decision. What is clear is that the applicant did know the reasons, but did not agree with those reasons.
The applicant says, that the reason for delay is explained by the investigative process that was undertaken by him, in relation to the matter and the need, to deal on a point by point basis with Centrelink, the applicant suggesting that Centrelink and its employees had been obstructive in relation to the provision of information. In his written submissions, the applicant says that he is not a legal person and that he simply followed the logical steps, to determine the elements of the matter and, further, that due to his financial situation, he was unable to obtain legal advice or legal counsel, to expedite the proceedings.
The applicant says, that in any event, whether there has been delay or not, there are other relevant considerations that need to be looked at. He says in paragraph 55 of his submissions, filed on 1 September 2004, the following:
In challenging the mental health and responsive actions of the applicant the respondents are again, through their legal counsel, showing an extreme lack of medical knowledge and the ability to continue to make unfactual and misleading statements in order to justify their mistakes. These agencies are responsible for daily decision affecting thousands of sick and injured people throughout Australia. If they are allowed to make those decisions without due care and attention and without medical basis, people will become sicker and some will die.
The applicant goes on to refer to other issues of concern and says, that Courts throughout the world have, in recent years, shown that mental health disabilities are individual and cannot be quantified or commented upon by persons who have no training, knowledge and first hand experience of the condition of the person being reported on. Quite simply, the applicant says that some special consideration or specific consideration should be given to him, as a result of his special circumstances, being the situation that involves his mental health.
There is, however, little information in relation to the issue of the applicant's mental health, though it is clear that a report by Dr Likely was made available at some stage, during the process. What is also clear, however, is that that report was not available at the time of decisions being made by Centrelink, nor was there any other information available. There are, obviously, concerns in relation to the matter.
The applicant suggests that there are general public concerns, greater than those relating simply to him. He suggests, in paragraph 57 of his submissions, that the law requires clarification for the purposes of the health, not only of the applicant, but for all of those to whom Centrelink and the Ombudsman, through the Ombudsman's Office, have dealings. The suggestion by the applicant, therefore, is that there needs to be review of the nature and validity of the statements made, in order for the situation not to arise again in respect of, not only the applicant, but of the public generally.
These may all be appropriate considerations in relation to legislative change or variation or, in fact, dealings and the manner of dealing within the offices of both Centrelink and the Commonwealth Ombudsman. They are not, however, the law. In Hunter Valley Developments Pty Ltd & Cohen (1984) 3 Federal Court Reports 344 at 348 and 349 there was a consideration of the position in respect of such matters. Spender J in Kristoffersen v Department of Employment Workplace Relations and Small Business (2002) FCA 755 at 757 says the following:
The applicant must show an acceptable explanation for the delay. It must be fair and equitable in the circumstances to extend time and the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
Both the respondent and the applicant make reference to the decision of Spender J and of his comments, in relation to that particular aspect of the matter. The applicant says that the merits of the substantial application, in other words the issue of dealing with persons suffering from mental health, not only the applicant but all, outweigh legal arguments that the respondents might put forward in relation to the need to fully explain the delay and the need to show that there is, merit in the application.
The applicant says that this matter goes to the heart of the right of persons with mental health issues, to be treated with fairness and due consideration to be given to their health. The applicant says that it is about the right of medical evidence and common sense not to be overruled, in favour of what he describes as poorly designed and badly interrupted [sic] legislation. I assume he means "interpreted".
Those are, of course, issues that may need to be addressed, but I am not satisfied that they are matters, that would properly be addressed in a determination of an application, for an extension of time. The fact is, that if time were granted to enable the application to be brought by the applicant, it would simply be a matter that would be then referred back to the Ombudsman, for the purposes of consideration of how they might determine this particular request for review. They have already acted in an appropriate manner in relation to that.
There has been two steps in relation to the Ombudsman's decision. The first was the decision not to proceed further with the investigation and the second was the review taken in relation to that. The applicant says that there are a number of grounds upon which the Ombudsman's decision should be reconsidered. These grounds are stated in these terms:
(1)That the decision of Centrelink was based on alleged illegal information that was reviewed by the Ombudsman's Office and stated not to exist by Centrelink under a request under the Freedom of Information Act.
(2)That as the information did not exist, according to Centrelink, the decision of the Ombudsman and Centrelink in relation to the matters are void.
(3)That the decisions in relation to the health of an individual are made only by qualified medical personnel and Centrelink has made this decision without lawful medical opinion from the treating or other medically trained specialists.
(4)That due to the above, the decision to decline a claim on the grounds made by Centrelink is invalid and void therefore declining of the claim is incorrect.
(5)That the alleged legal information released by Centrelink under the Freedom of Information Legislation request did not contain information leading to the statement of the Ombudsman.
(6)That the documents released under the Freedom of Information Legislation indicate the[sic] Centrelink failed to provide[sic] it's legal advisers with all of the information it had in its possession.,
(7)That the documents released under FOI indicate the Centrelink failed to provide the Commonwealth Ombudsman of all the information it had it its possession.
The vast majority of those grounds fail to take into consideration the powers and the requirements of the ADJR Act. It is difficult to be certain exactly what arguments are raised in relation to the matter, but it is clear that they relate back to information provided and whether it should or should not have been utilised, by the Ombudsman, in the decision that was made in the Ombudsman's Office. The fact is, that the applicant is required to show that there is some fault or failure on the part of the Ombudsman, in relation to the matter.
I have given consideration to the provisions of the Ombudsman's Act and the statutory role of the Ombudsman. The Ombudsman Act 1976 provides, in section 5:
That the functions of the Ombudsman include, to investigate an action that relates to a matter of discrimination by a department or a prescribed authority. Such investigation can be either on the basis of a complaint made -
as is the case here –
or upon the Ombudsman's own motion.
More particularly, however, the Act provides that the Ombudsman has a discretion as to whether the Ombudsman will investigate or further investigate an action. That decision is discretionary and it is clear from the words of subsection 6(I) that:
The Ombudsman may, in his or her discretion, decide not to investigate the action or not to investigation the action further. If the Ombudsman decides not to investigate the action or the action further he or she must inform the complainant and the relevant agency of that decision.
This is provided for pursuant to the provisions of section 12(1) of the Act, and such notification was given.

I am satisfied on the information that is available, that the actions taken by the Ombudsman in relation to investigation and, more particularly, the cessation of investigation, was done properly. The applicant may have sought or wished to seek further information in relation to the matter. The fact is, however, that there was delay. Even if I were satisfied that the delay is explained and I am not so satisfied, I am not satisfied that there is a proper basis or merit, upon which it could be seen that there were prospects of successfully challenging the Ombudsman's decision, in relation to the matter. Even if that were the case, however, I am not satisfied that it would result in any further determination, favourable to the applicant.
Accordingly, I am satisfied that the appropriate course in relation to this matter also, is that the applicant's application in respect of the Ombudsman should be dismissed and I order accordingly. Therefore the application for extension of time, filed 30 March 2004, fails in respect of both Centrelink and the Ombudsman and the application of 30 March 2004 is dismissed.
I will grant leave to either party to provide written submissions in relation to the issue of costs within 21 days of today.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Coker FM

Associate: C Herbst

Date: 18 August 2005