Murphy v Secretary, Department of Social Services

[2021] FedCFamC2G 336

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Murphy v Secretary, Department of Social Services [2021] FedCFamC2G 336

File number(s):	BRG 181 of 2021
Judgment of:	JUDGE VASTA
Date of judgment:	14 December 2021
Catchwords:	ADMINISTRATIVE LAW – Judicial review – where Applicant had applied for disability support pension – where applicant assessed by department – where a report is made – where a decision-maker bases decision on a report – where the applicant disagrees with assessment – where it was open for applicant to have an internal appeal – where it was open for applicant to go to AAT if aggrieved with result of internal appeal – whether the judicial review should be refused under s10(2)(b)(ii) of ADJR Act – application dismissed
Legislation:	Administrative Decisions (Judicial Review) Act 1977 (Cth), s 10(2)(b)(ii)
Division:	Division 2 General Federal Law
Number of paragraphs:	45
Date of last submission/s:	29 November 2021
Date of hearing:	In chambers
Place:	Brisbane
Counsel for the Applicant:	The Applicant making submissions on his own behalf
Solicitor for the Respondent:	Sparke Helmore

ORDERS

BRG 181 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BRETT LESLIE MURPHY

Applicant

AND:

SECRETARY, DEPARTMENT OF SOCIAL SERVICES

Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	14 DECEMBER 2021

THE COURT ORDERS THAT:

1.The application filed on 29 April 2021 be dismissed.

2.The Applicant pay the Respondent’s costs of and incidental to the application fixed in the sum of $8,408.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE VASTA

INTRODUCTION

1. On 16 March 2020, the secretary of the Department of Social Services (“the Secretary”) rejected a claim made by the Applicant, Brett Leslie Murphy, for a disability support pension (“DSP”).  On 29 April 2021, the Applicant asked this Court to review that decision.

2. The matter came before the Court in this way.  After making the application for the DSP, the Applicant was interviewed by a psychologist employed by the Department.  That psychologist made a job capacity assessment (“JCA”).  The JCA report gave the Applicant a score of 10.  This JCA report was then used by a delegate of the secretary of the Department of Social Services who decided that the Applicant did not meet the criteria for the DSP because a score of 20 was needed.   

3. After the delegate had made the decision, the Applicant asked for an internal appeal of that decision.  This was done on 24 March 2020. 

4. The Applicant heard nothing from the Department until he telephoned and enquired about the progress of his review in September 2020.  He said that he was told that the application had not been actioned and was given an apology. During that phone call, the Applicant was told he would be given a copy of the JCA report which was duly sent to him. 

5. On 21 December 2020, the Applicant again contacted Centrelink to enquire about the progress of his application.  The Applicant was told that another specialist was looking at the JCA report and that the matter would proceed to an authorised review officer after that.  The Applicant was advised to send through any additional medical evidence.

6. On 29 December 2020, the Applicant sent further medical evidence to the Department. 

7. On 8 January 2021, the Applicant contacted Centrelink again and was told that the authorised review officer had received correspondence from the Applicant and would contact him by telephone within 28 days.

8. On 3 February 2021, the Applicant contacted Centrelink again and was told to allow another 10 days for contact to be made.

9. The Applicant had received no other contact before he lodged this application on 29 April 2021.

   History of this matter in this Court

10. The matter first came before His Honour Judge Jarrett (as His Honour then was) on 11 June 2021.  His Honour made orders that the Respondent file material in the form of the court book.  His Honour put in place a timetable for the Applicant file and serve written submissions and for the Respondent file and serve written submissions.  His Honour adjourned the matter to 27 August 2021 for a hearing.

11. It is not easily discernible on the file as to why there was no hearing on 27 August 2021.  It does seem though that the parties were notified that the final hearing would occur on 7 October 2021.  The Applicant and the Respondent both filed their submissions and the Respondent filed a court book. 

12. Some of the documents in the court book were redacted.  These documents were passed medical reports predating the accident suffered by the Applicant.  The reasoning for the redaction was that there was a strong recommendation on the reports that some of the material not be released to the Applicant unless he were with an appropriate medical officer (GP or psychiatrist) because the content may be deleterious to his mental health.

13. The matter proceeded before His Honour on 7 October 2021.  A transcript of those proceedings has been made available.  In short, the Applicant made his oral submissions on the review matter but then began to embark upon a criticism of the redacting of material in the court book.  His Honour remarked that the Respondent should not have unilaterally redacted material without making an application to do so.

14. His Honour then adjourned the matter to a date to be fixed pending the Respondent filing an application in a case “regarding the suppression of material”.  His Honour was appointed to division one of this Court soon afterwards.  Upon his appointment, His Honour no longer had jurisdiction to hear the matter. 

15. The matter came into my docket upon an audit of all of the files that had been allocated to His Honour.  I mentioned the matter in court but knew nothing else of the history of the matter.  It was then pointed out to me by the Applicant that a hearing had been conducted and that he had already made his submissions.  I dealt with the matter of the “suppression of material” in a very quick way by ascertaining whether either of the parties were of the view that the “suppressed material” had any impact on the decision-making of the Respondent.  When neither party submitted that there was any direct impact upon the decision by the “suppressed material”, I then proposed that the matter be given a fresh hearing date.

16. The Applicant did not wish to have a fresh hearing date but rather to rely upon his written submissions and the oral submissions made before His Honour.  I adjourned the matter to allow the Respondent to consider their position, given that they made no oral submissions on 7 October 2021. 

17. On 29 November 2021, the Respondent indicated that they were content to rely upon their written submissions and for the matter to otherwise now be heard, by me, on the papers.  The Applicant agreed with this course and thus the decision became reserved as of that date.

    Background

18. The Applicant was involved in a motor vehicle accident on 12 September 2017.  The Applicant has suffered a number of injuries as a result of that accident.  The Applicant claims that he has had debilitating facial and neck pain, debilitating spinal and pelvic pain and severe gastrointestinal problems ever since the accident.

19. The Applicant applied for, and was granted, Centrelink sickness allowance shortly after the accident.

20. In December 2019 he applied for the DSP.

21. The Applicant claims that apart from the injury to his spine, he was also experiencing thrombotic swelling in his legs that was aggravated by only very minor exercise.

22. The Applicant said that on 26 February 2020, he attended a JCA interview with the psychologist.

    The Decision

23. The letter, sent to the Applicant on 16 March 2020, does not give reasons as to why the Applicant has had his claim for the DSP rejected other than to say that “you have been assessed as not having an impairment rating of 20 points or more”.

24. On the evidence before me, the delegate simply looked at the JCA report, found that it gave the Applicant a rating of 10 and then decided that, because that rating was under a rating of 20, the Applicants’ claim should therefore be rejected.

25. The decision was based on a fact.  That fact was that there was an assessment that the Applicant did not have an impairment rating of 20 points or more.

    The Application

26. There were three grounds of application:-‘

    1.The Respondent did not assess the impairment to the Applicant’s cervical spine correctly. The Respondent was provided with medical evidence showing a loss of motion segment integrity in the Applicant’s cervical spine.

    2.The Respondent failed to assess permanent impairments in the Applicant’s thoracic spine, lumbar spine, and pelvis under the Impairment Tables. The Respondent has failed to assess permanent impairments affecting the Applicant under the appropriate Impairment Tables, including incontinence and digestion impairments.

    3.The Respondent wrongly decided that the Centrelink Medical Certificates issued by the Applicant’s General Practitioner between September 2017 and December 2019 indicate that the Applicant’s impairments are not permanent. At the time of Job Capacity Assessment the Applicant had been under a Centrelink Medical Certificate for more than two years.

27. It seems to me that the application is misguided.  The Respondent did not purport to assess the impairment to the cervical spine. The Respondent did not purport to assess permanent disability under the Impairment Tables. The Respondent did not purport to decide anything regarding medical certificates.  But it was not the Respondent’s responsibility to make any of those assessments; those assessments were done by another person.  It was the responsibility of the Respondent to make a decision as to whether the Applicant should be granted the DSP.

28. The grounds stated in the application would immediately fail for that reason.

29. The Applicant simply wishes to cavil with the manner in which the assessment was made.  These grounds are basically an application for an impermissible merits review.  The Applicant truly can find no error in the decision of the Respondent.  The Applicant is really asserting that the error lies with the person who made the JCA report.  But that person is not the person who has made the decision.

30. In the application, the Applicant sought two orders; firstly, that the decision of the Respondent be quashed and, secondly, a declaration that the Applicant is eligible for the DSP.  The Second order sought reflects a fundamental misapprehension of the notion of a judicial review.  This Court cannot decide whether or not the Applicant is eligible for the DSP; all this Court can do is to review whether the decision to reject the Applicant’s application for the DSP was a decision that was affected by jurisdictional error.

31. The Applicant has made further arguments in his reply and outline of submissions.  The Applicant contends that the manner in which the assessment is made is a matter of law.  He contends that any error made in the JCA is thereby an error of law.  I do not agree with those submissions, but in any event, I do not need to engage with those arguments because of the preliminary issue of whether the application should be permitted to proceed, needing to be addressed first.

    Should the Application for Judicial Review be permitted to proceed?

32. Whilst it is certainly within the power of this Court to review the decision of the Respondent, the decision was being internally reviewed by the Authorised Review Officer (ARO) at the time the Applicant asked this Court to review the decision of the Respondent.  There can be some justifiable criticism at the length of time that it was taking for the ARO to make a decision.  Nevertheless, the ARO did make a decision on 2 June 2021.  This was before the matter first came to Court as a “first court hearing” before Judge Jarrett (as His Honour then was) on 11 June 2021.

33. This decision of the ARO is not the subject of review.  Yet, the ARO decision is the decision that is, in effect, the final decision of the Respondent and supersedes the decision that is the subject of this review.  The ARO decision was a full merits review decision.  Upon receipt of the decision of the ARO, the Applicant had the right to ask for a full independent review to be undertaken by the Administrative Appeals Tribunal (“the AAT”).

34. Section 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) says that this Court “may, in its discretion, refuse to grant an application… that was made to the court in respect of a decision…for the reason… that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by… another tribunal… of that decision”.

35. There is little doubt that adequate provision is made under the law for the Applicant to seek a review by the AAT of the decision of the ARO.  More to the point, it would be a full merits review rather than a review pursuant to the very narrow confines of “judicial review”.

36. The Applicant has argued that the Court should not exercise its discretion pursuant to s 10(2)(b)(ii) of the ADJR Act. The Applicant is of the view that this Court has the ability to review the merits of the decision of the Respondent. He is clearly wrong about that matter.

37. He also argues that if his application “only concerned the factual merits of the decision of the Respondent… a review by the AAT would be the appropriate vessel to achieve the substantive outcomes that are required but this is an application for review that requires the statutory interpretation of Social Security legislation” which puts it into a different category.

38. Again the Applicant is unfortunately wrong. The ADJR Act only allows the Court to review “decisions” that are made. The only decision that the Court can review is the decision not to grant the Applicant the DSP. The Applicant really wants the Court to review the assessment made by the psychologist who completed the JCA report. That is not within the jurisdiction of this Court because it is not a decision.

39. Because the JCA report is a “fact”, it would be open to the Applicant to challenge that “fact” before the AAT. 

40. In this Court, that “fact” could only become an issue if it is that there is no evidence upon which the Respondent could have been satisfied of the “fact” that there had been an assessment that the Applicant did not have an impairment rating of 20 points or more.

41. I am of the view that adequate provision is made under the law for the Applicant to seek a review by the AAT.  It is a matter for my discretion as to whether, in those circumstances, I refuse to grant the application. 

42. Having considered all of the matters, I exercise my discretion and I refuse to grant the application.

    Costs

43. The Respondent notified the Applicant of the provisions of s 10(2)(b)(ii) of the ADJR Act on 4 June 2021 by telephone and by confirmatory email the following day. This was two days after the decision by the ARO and a week before the first court date before His Honour.

44. The Applicant decided to contest the matter notwithstanding the warning that had been given to him.  Costs follow the event in matters of judicial review.

45. I order that the Applicant pay the Respondent’s costs fixed in the amount of $8,408.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Dated:       14 December 2021