FEDERAL COURT OF AUSTRALIA
Luck v Secretary, Services Australia [2024] FCA 1158
ORDERS
VID 411 of 2024 BETWEEN: GAYE LUCK
Applicant
AND: THE SECRETARY, SERVICES AUSTRALIA
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
ORDER MADE BY:
DOWLING J
DATE OF ORDER:
3 OCTOBER 2024
THE COURT ORDERS THAT:
1.The Court determine, as a preliminary issue, the question of whether the proceedings should be dismissed pursuant to ss 10(2)(b)(ii) and 16(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Court’s residual discretion to decline to grant prerogative writ relief.
2.The preliminary issue…
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- Case
- [2024] FCA 1158
- Decision Date
CaseChat Overview and Summary
The court held that Ms Luck had not pursued the available review mechanisms under the Social Security (Administration) Act 1999 (Cth). These included internal reviews under sections 129 and 135, and further review by the Administrative Appeals Tribunal (AAT) under sections 142 and 179. The court found that these statutory review provisions provided adequate alternative avenues for Ms Luck to challenge the Secretary's decisions. Furthermore, the court exercised its discretion to decline to grant prerogative writ relief. As a result, the court determined that the proceedings should be dismissed, with costs awarded to the Secretary. The decision underscores the importance of exhausting internal and statutory review processes before seeking judicial review, ensuring that the appropriate avenues for resolution are fully utilised.
Orders
Orders of the court
1. The Court determine, as a preliminary issue, the question of whether the proceedings should be dismissed pursuant to ss 10(2)(b)(ii) and 16(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Court’s residual discretion to decline to grant prerogative writ relief.
2. The preliminary issue be determined in favour of the respondents.
3. The proceeding be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Although in dissent this passage was cited with approval in McLeish v Faure [1979] FCA 38; 25 ALR 403 at 415 (per Sweeney, Evatt and Northrop JJ) and in Aquila Steel Pty Ltd v BHP Minerals Pty Ltd [2022] WASC 121 at [65] by Allanson J. CONSIDERATION Relevant social security law provisions for review The Administration Act is an Act providing for the administration of the social security law. The ‘social security law’ is defined by s 23(17) of the Social Security Act 1991 (Cth) to include the Social Security Act and the Administration Act. Section 129 of the Administration Act relevantly provides that a person affected by a decision of “an officer under the social security law” may apply to the Secretary for review of the decision. Section 23(1) of the Social Security Act defines an “officer” as “a person performing duties, or exercising powers or functions, under or in relation to the social security law”. Section 126 of the Administration Act provides that the Secretary may review a decision of “an officer under the social security law” if the Secretary is satisfied there is sufficient reason to review the decision. Unlike s 129, s 126 authorises a review of such a decision whether or not an application is made. Section 135 of the Administration Act provides that, subject to an irrelevant exception, if a person applies under s 129 for review of a decision, the Secretary (or the Chief Executive of Centrelink or an authorised officer) must review the decision and affirm the decision, vary the decision, or set aside the decision and substitute a new decision. Part 4A of the Administration Act provides for review of certain decisions by the AAT. Division 2 of Part 4A deals with the “AAT First Review”. In that Division, s 142 relevantly provides, subject to some irrelevant exceptions, that an application may be made to the AAT for review of a decision of the Secretary (or an authorised officer) under ss 126 or 135. By s 43 of the Administrative Appeals Act 1975 (Cth) (AAT Act), in such a review conducted by the AAT it relevantly has the powers conferred on the decision maker in the internal review under ss 129 and 135 of the Administration Act. Division 3 of Part 4A deals with the “AAT Second Review.” In that Division, s 179 provides that an application may be made to the AAT for a review of a decision of the AAT on the AAT first review made under subsection 43(1) of the AAT Act. In other words the AAT Second Review is a review of the AAT First Review. In Ambrose v Commonwealth of Australia [2020] FCA 1439, Perry J found that the avenues for review to the AAT under ss 142 and 179:clearly constitute “adequate provision” for review capable of attracting the discretion in s 10(2)(b)(ii). Furthermore, these avenues would have been better suited to the efficient resolution of the dispute and enabled a full merits review to be undertaken, if there had been any issues remaining between the parties to resolve.Mobility allowance decision – adequate alternative review