Paschke v Burns
[2016] FCA 1524
•9 December 2016
FEDERAL COURT OF AUSTRALIA
Paschke v Burns [2016] FCA 1524
File number(s): VID 1093 of 2016 Judge(s): NORTH J Date of judgment: 9 December 2016 Legislation: Federal Court Rules 2011 r 2.26, 2.27
Social Security Act 1991 (Cth) s 1118
Date of hearing: 9 December 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 13 Counsel for the Applicants: The First Applicant appeared in person and on behalf of the Second Applicant Counsel for the Respondents: The Respondents did not appear ORDERS
VID 1093 of 2016 BETWEEN: WINFRIED PASCHKE
First Applicant
ELVIER DEIDRE PASCHKE
Second Applicant
AND: DEPUTY REGISTRAR BURNS
First Respondent
DEPUTY PRINCIPAL REGISTRAR MATHIESON
Second Respondent
JUDGE:
NORTH J
DATE OF ORDER:
9 DECEMBER 2016
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NORTH J:
Before the Court is an application for judicial review in respect of decisions of registrars to refuse the applicant to file a document or documents in the court. The first document which he sought to file is dated 22 September 2015 and is brought in his own name “and others”. The details of the claim read as follows:
The Applicant is aggrieved by the decision because:
(1) It leads to an over-valuation of the actual asset and,
(2) Leads to a reduction in social services payments.
Under the grounds of the application it says the Act does not authorise that decision. The orders sought are set out in an attachment which reads as follows:
The decision instructs Centrelink staff to use the value of an exempt asset (the principal home) in determining the value of the actual asset (the land adjacent to the principal home).
Orders sought
1)Refrain from using the value of the exempt principal home to assess the value of the actual asset.
2)Value the actual asset (the land adjacent to the principal home) on its own merits, taking into account all relevant details that affect that land e.g. it’s [sic] best and highest use, no separate title, governmental restrictions on the use of that land etc.
In a letter dated 12 October 2015, Registrar Burns wrote to the applicant rejecting this document and explaining his reasons. That letter provided as follows:
RE: Originating Application For Judicial Review lodged with the Federal Court of Australia on 24 September 2015 and email dated 13 October 2015
I refer to your application lodged in the Federal Court of Australia on 24 September 2015 and subsequent email dated 13 October 2015. I have reviewed the application and have decided that it should not be accepted for filing, pursuant to Rule 2.27 (d) of the Federal Court Rules 2011 (“the Rules”), as there does not appear to be an underlying dispute in relation to your pension, and you do not have standing to bring an application on behalf of unnamed members of the public.
Standing
I note you have indicated yourself as the First Applicant, Elvier Deidre Paschke as the Second Applicant and ‘unknown persons who are affected by this decision’. To bring an action for judicial review, you must first have standing. Section 5(1) of the Administrative Decision (Judicial Review) Act 1977 (Cth) (the ADJR Act) provides that an application for judicial review of decisions must be made by a ‘person who is aggrieved by a decision to which this Act applies’. Section 6(1) of the ADJR Act provides that an application for judicial review of conduct related to the making of a decision must be made by a person who is aggrieved by the conduct. As such, you are not able to bring proceedings on behalf of ‘unknown persons who are affected by this decision’ as stated in your application.
No Underlying Dispute
The Court will not ordinarily make declarations on legal questions where there is no underlying dispute. In your application you state that the decision you are seeking judicial review of is the method utilised by Centrelink to value excess land adjacent to a person’s principal home for the purpose of the Asset Test. You indicated to Ms Mary McIlwain of this office in a telephone conversation in or around late April that Centrelink has reviewed the valuation method and re-instated your pension and provided back-pay. As such, there does not appear to be an existing dispute.
For the reasons above, I have rejected your application for filing with the Court.
In response to the letter the applicant filed a further document dated 4 November 2015. The document followed the same form as the first document save that the applicants were now limited to the applicant and another rather than others, otherwise the text was the same.
On 9 November 2015 the Registrar again refused to accept the document for filing and wrote to the applicant as follows:
Re: Originating Application for Judicial Review lodged with the Federal Court of Australia on 5 November 2015
I refer to your application lodged in the Federal Court of Australia on 5 November 2015. I have reviewed the application and have decided that it should not be accepted for filing, pursuant to Rule 2.27 (d) of the Federal Court Rules 2011 (“the Rules”), as there does not appear to be an underlying dispute in relation to your pension.
Your current application is not dissimilar to your previous application which you lodged with the court on 24 September 2015 and, which was also not accepted for filing. The difference is that you have removed “and unknown persons who are affected by this decision” from the schedule. Please refer to letter sent to you dated 12 October 2015.
For the reasons above, I have rejected your application for filing with the Court.
The registrar acted under r 2.26 and r 2.27 of the Federal Court Rules 2011, and in particular, under r 2.27(d). The application for judicial review made the following complaint:
Deputy District Registrar Burns used wrong verbal advice to justify his decision instead of only referring to what was on the face of the Originating Application(s).
The first thing to notice about the application which the applicant sought to file is that it, on its face, does not disclose, with sufficient particularity or explanation, the basis of the application. The relevant Act is not specified and does not identify the decision in issue either by reference to a date, a decision-maker or the substance of it. It is therefore on its face quite inadequate and ordinarily could have been rejected on the basis that it was an abuse of the process of the Court because it did not disclose a claim justiciable by the Court.
However, rather than treat the matter in a formal way as it could have been, the process of the Court provided that the applicant be assisted by staff of the Court who deal particularly with applicants or parties who are unrepresented. As a result of a discussion between the applicant and a staff member of the Court whose task it is to deal with unrepresented litigants, the applicant indicated the nature of his complaint. He explained that he claimed benefits, which he has explained to the Court today is an age pension. That benefit, as are others under the social security legislation, depends upon an assessment of the assets of the applicant.
The applicant in this case is concerned about s 1118 of the Social Security Act 1991 (Cth) which exempts from the assets calculation the principal place of residence of the claimant for benefits. His complaint is that where the principal place of residence is on a large block of land the Department of Social Services, apparently operating under a directive or a policy, determines what part of the land is to be treated as the place of residence and then values the balance of the land as an asset of the claimant for benefits. The result, as argued by the applicant, is that the land excised from the principal place of residence, which is treated as an asset, enlarges the asset base and therefore reduces the benefits available in circumstances where in fact the entirety of the land should be regarded as exempt as part of the principal place of residence.
The applicant apparently explained to the staff member that as a result of discussions with the Department over some years, in his own case this directive was not applied to his disadvantage. In other words, although he disputes the validity of the Department applying such an approach it does not result in his circumstances to a reduction in his benefits or an increase in his asset position. The Registrar, having become aware of the personal situation as explained by the applicant, came to the view that leaving aside the formal lack of compliance of the document there was no dispute justiciable by the Court disclosed in the circumstances of the applicant.
In the absence of a dispute the Court is unable to rule upon a claim and consequently the Registrar refused the documents for filing. The result reached by the Registrar was correct. The document was on its face unable to support the claim which the applicant now explains he sought to make. The Registrar went beyond simply looking at the face of the document as a matter of attention to the needs of an unrepresented litigant and ascertained that in fact in his circumstances the decision referred to in the document was not a decision which had an adverse effect of the applicant. In those circumstances the application for judicial review of the Registrar’s decisions cannot be upheld.
It follows that the application is dismissed.
The following is by way of postscript. Upon editing these reasons for judgment, a difference was found between the applicant’s articulation of his complaint regarding the Department, and the summary of that complaint in the italicised portion of [9] of these reasons for judgment. According to the applicant, the Department’s method of calculating the value of the land excised from the principal place of residence is as follows: first, the block of land is valued as a whole. The value of the excised land is then determined by deducting a percentage, representative of the land on which the residence lies, from the total value of the block. The result, according to the applicant, is that the excised land is overvalued. The correct method, according to the applicant, would be to value the excised land as an entirely separate block of land, taking no account of the value of any buildings or amenities associated with the principal place of residence. The effect of the alleged over-valuation is that for the purposes of an assets test, the over-valued excised land reduces the benefits that would otherwise be available were the excised land valued according to the applicant’s method. This clarification makes no difference to the outcome of this application.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 9 December 2016
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