Luck v Secretary, Services Australia

Link copied
Case Copied 25 min read

FEDERAL COURT OF AUSTRALIA

Luck v Secretary, Services Australia [2024] FCA 1158  

File number(s): VID 411 of 2024
Judgment of: DOWLING J
Date of judgment: 3 October 2024
Catchwords: PRACTICE AND PROCEDURE – review sought under Administrative Decisions (Judicial Review) Act 1977 (Cth) - whether adequate provision is made for other review under the Social Security (Administration) Act 1999 (Cth) – whether the Court should exercise its discretion to dismiss proceedings – proceedings dismissed
Legislation:

Administrative Appeals Act 1975 (Cth) s 43

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6, 7, 10, 16

Age Discrimination Act 2004 (Cth)

Australian Human Rights Commission Act 1986 (Cth)

Disability Discrimination Act 1992 (Cth)

Federal Court Act 1976 (Cth) s 37M

Judiciary Act 1903 (Cth) s 39B

Social Security (Administration) Act 1999 (Cth) s 63, 129, 135, 142, 179

Social Security Act 1991 (Cth) s 23

Federal Court Rules 2011 (Cth) r 30.01

Cases cited:

Ambrose v Commonwealth of Australia [2020] FCA 1439

Aquila Steel Pty Ltd v BHP Minerals Pty Ltd [2022] WASC 121

Cremona v Administration Appeals Tribunal [2015] FCAFC 72; 230 FCR 1

Dalian Steelforce Hi-Tech Co Ltd v Minister for Home Affairs [2012] FCA 1192; 243 FCR 176

Federal Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32; 237 CLR 146

Forster v Jododex Australia Pty Ltd [1972] HCA 61; 127 CLR 421

Griffith University v Tang [2005] HCA 7; 221 CLR 99

Haque v Secretary Department of Social Services (Centrelink) [2024] FCA 295

Kamha v Australian Prudential Regulation Authority [2005] FCAFC 248; 147 FCR 516

McLeish v Faure [1979] FCA 38; 25 ALR 403

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123

Murphy v Secretary, Department of Social Services [2022] FCA 1605; 180 ALD 347

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; 211 CLR 476

Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718; 240 FCR 276

Swan Portland Cement Ltd v The Comptroller-General of Customs (1989) 25 FCR 523

University of Sydney v Resmed Ltd (No 5) [2012] FCA 232

Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 70
Date of hearing: 29 September 2024
Counsel for the Applicant The applicant appeared in person
Counsel for the First Respondent  Ms P Heffernan
Solicitor for the First Respondent Australian Government Solicitor
Counsel for the Second Respondent The second respondent filed a submitting notice

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…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Luck v Secretary, Services Australia and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2024] FCA 1158
Decision Date

CaseChat Overview and Summary

In the matter of Luck v Secretary, Services Australia, the Court was presented with a case where Ms Luck sought judicial review of decisions made by the Secretary, Services Australia, regarding her aged pension and mobility allowance. Ms Luck contended that the Secretary's decision to cease her mobility allowance and a subsequent request for further information about her age pension were unlawful. The court was tasked with determining whether there were adequate provisions for review available to Ms Luck under the Social Security (Administration) Act 1999 (Cth) and whether the court should exercise its discretion to dismiss the proceedings. The central issue before the court was whether the statutory review mechanisms available under the Social Security (Administration) Act 1999 (Cth) provided Ms Luck with adequate avenues for review, thus warranting the dismissal of her application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Additionally, the court had to consider its discretion to decline granting prerogative writ relief.

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

For the reasons set out below I have decided to dismiss the proceeding with costs. The principal reason for my decision is that Ms Luck has other adequate options available to her if she wishes to review the decision or correspondence of the Secretary.BACKGROUND FACTS There was no dispute that, prior to April 2024, Ms Luck received an aged pension and a mobility allowance. The mobility allowance was described by the Secretary as a payment to assist people who have difficulty using public transport, with their travel costs to work, study or to look for work. On 2 April 2024, Services Australia wrote to Ms Luck advising that her mobility allowance would stop on 25 June 2024 because she was not working enough hours to be eligible for the payment (the mobility allowance decision). Ms Luck says she received that letter on 14 April 2024. There was no dispute about the contents of the letter, that it was sent, and that it was received on 14 April 2024. The letter dated 2 April 2024 communicating the mobility allowance decision included the following:If you do not agree with the decision we have madeContact us so we can check the details and explain the decision. Contact us and ask for a review of the decision. We will change it if it is wrong. Contact the Administrative Appeals Tribunal if you do not agree with the review officer’s decision.If you do not agree with the decision of the AAT you may be able to appeal further. For more information about the AAT, please go to aat.gov.au. All of the above are free of charge. There is no dispute that Ms Luck did not, and did not seek to, use any of those review mechanisms. On 3 May 2024, Services Australia wrote to Ms Luck asking for further information to “to help [them] make the right decision about [her] age pension” (the age pension letter). The age pension letter was headed “request for information” and stated that it was requesting information under s 63 of the Social Security (Administration) Act 1999 (Cth) (Administration Act). Ms Luck says she received the letter on 6 May 2024. Again, there was no dispute about the contents of the letter, that it was sent, and that it was received on 6 May 2024. The age pension letter included the following:More informationIf you have any questions about this letter, please go to servicesaustralia.gov.auor call us on 132 300…To make a complaint or give us feedbackWe aim to resolve your concerns as quickly as possible. If you want to make a complaint or give us feedback you can:Call our feedback and complaints line on 1800 132 468Go to servicesaustralia.gov.au/feedback for other optionsIf this does not resolve your concerns, you can make a complaint to the Commonwealth Ombudsman at ombudsman.gov.au using the online complaints form. If you are unable to complete the online form, you can call them on 1300 362 072. There is no dispute that Ms Luck did not seek information or make a complaint under those processes. On 10 May 2024, Ms Luck filed this proceeding seeking judicial review, on the grounds set out at [1] above, of the Secretary’s conduct in respect of the mobility allowance decision and the age pension letter.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The letter dated 2 April 2024 communicating the mobility allowance decision included the following:If you do not agree with the decision we have madeContact us so we can check the details and explain the decision. Contact us and ask for a review of the decision. We will change it if it is wrong. Contact the Administrative Appeals Tribunal if you do not agree with the review officer’s decision.If you do not agree with the decision of the AAT you may be able to appeal further. For more information about the AAT, please go to aat.gov.au. All of the above are free of charge. There is no dispute that Ms Luck did not, and did not seek to, use any of those review mechanisms. On 3 May 2024, Services Australia wrote to Ms Luck asking for further information to “to help [them] make the right decision about [her] age pension” (the age pension letter). The age pension letter was headed “request for information” and stated that it was requesting information under s 63 of the Social Security (Administration) Act 1999 (Cth) (Administration Act). Ms Luck says she received the letter on 6 May 2024. Again, there was no dispute about the contents of the letter, that it was sent, and that it was received on 6 May 2024. The age pension letter included the following:More informationIf you have any questions about this letter, please go to servicesaustralia.gov.auor call us on 132 300…To make a complaint or give us feedbackWe aim to resolve your concerns as quickly as possible. If you want to make a complaint or give us feedback you can:Call our feedback and complaints line on 1800 132 468Go to servicesaustralia.gov.au/feedback for other optionsIf this does not resolve your concerns, you can make a complaint to the Commonwealth Ombudsman at ombudsman.gov.au using the online complaints form. If you are unable to complete the online form, you can call them on 1300 362 072. There is no dispute that Ms Luck did not seek information or make a complaint under those processes. On 10 May 2024, Ms Luck filed this proceeding seeking judicial review, on the grounds set out at [1] above, of the Secretary’s conduct in respect of the mobility allowance decision and the age pension letter. On 18 July 2024, I made orders in the proceeding, including orders that the Secretary file any interlocutory application for the dismissal of the proceeding by 2 August 2024. That date was extended, and on 9 August 2024, the Secretary filed an interlocutory application seeking orders that:(a)the Court determine, as a preliminary issue, the question of whether the proceedings should be dismissed pursuant to s 10(2)(b)(ii) and/or s 16(1) of the ADJR Act and the Court’s residual discretion to decline to grant prerogative writ relief; and(b)the proceeding be dismissed with costs. The Secretary filed written submissions in support of his interlocutory application on 9 August 2024. Ms Luck filed submissions opposing the interlocutory application on 12 August 2024. The interlocutory application was heard by me on 23 September 2024.

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