FEDERAL CIRCUIT COURT OF AUSTRALIA
| PEARCE v MINISTER FOR FINANCE | [2020] FCCA 1291 |
| Catchwords: MCKENZIE FRIEND – Whether person acting as McKenzie Friend has right of audience. |
| Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5(e), (f), (i), 5(1), 5(1)(e) & (g),16 |
| Applicant: | GEORGINA PEARCE |
| Respondent: | MINISTER FOR FINANCE |
| File Number: | ADG 216 of 2018 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 10 April 2019 |
| Date of Last Submission: | 15 April 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 22 May 2020 |
REPRESENTATION
| The Applicant: | Mr A Pearce as McKenzie Friend |
| Counsel for the Respondent: | Mr T Galvin |
| Solicitors for the Respondent: | Maddocks |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 216 of 2018
| GEORGINA PEARCE |
Applicant
And
| MINISTER FOR FINANCE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’) in relation to decisions of a Delegate of the Minister for Finance made on 8 May 2018 and 8 November 2018. Those decisions declined to authorise an act of grace payment to the applicant under s 65(1) of the Public Governance, Performance and Accountability Act 2013 (Cth) (‘the PGPA Act’). The payment sought was in the amount of $12,510 in lieu of the amount of Parental Leave Payment (‘PLP’) it is asserted she would have been entitled to under the Paid Parental Leave Act 2010 (Cth) (‘PPL Act’) had she correctly completed the FA100 application form used by the Department for the purpose of assessing eligibility for the PLP. The applicant relies on her Further Amended Initiating Application having filed her original Initiating Application on 1 June 2018 and two subsequent Amended Applications on 6 December 2018 and 26 February 2019.
For reasons that will become apparent, the decision of the Delegate dated 8 November 2018 is the operative decision for the purpose of this application.
I permitted the husband…
Keep reading for free
Create a free CaseChat account to read Pearce v Minister for Finance 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
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2020] FCCA 1291
- Decision Date
CaseChat Overview and Summary
In *Pearce v Minister for Finance*, heard by Judge Heffernan, the applicant sought judicial review of the Minister's decision not to authorise an act of grace payment under section 65 of the *Public Governance, Performance and Accountability Act 2013* (Cth). The applicant had failed to receive Parental Leave Pay (PLP) under the *Paid Parental Leave Act 2010* (Cth) due to incorrectly completing her application, a mistake attributed to her disability. She argued that the Minister's refusal to grant an act of grace payment was an improper exercise of power, involved an error of law, and was otherwise contrary to law.
The court was required to determine whether the Minister's decision involved an improper exercise of power, specifically by taking irrelevant considerations into account or failing to consider relevant ones, and whether the decision contained an error of law or was otherwise contrary to law. The applicant contended that the Minister wrongly considered the correct application of the *Paid Parental Leave Act 2010* (Cth) as a reason to deny an act of grace payment, that her disability should have been considered a "special circumstance" for an act of grace payment, and that other legislative frameworks and the broad intentions of the *Paid Parental Leave Act 2010* (Cth) were not sufficiently considered.
Judge Heffernan dismissed the application. The court found that the Minister's decision was not an improper exercise of power. The Minister correctly identified that the *Paid Parental Leave Act 2010* (Cth) did not provide for extensions of time or consideration of special circumstances, and that the act of grace mechanism was a remedy of last resort, not to be used when another viable remedy existed. The court also determined that the applicant's disability, while acknowledged, did not constitute a "special circumstance" in the context of the guidelines for act of grace payments, particularly as the applicant had not sought assistance to overcome her difficulties with the application process. The Minister's consideration of factors such as the Department of Human Services not contributing to the failure to lodge an effective claim and the existence of a statutory time limit for claims were found to be relevant considerations.
The court was required to determine whether the Minister's decision involved an improper exercise of power, specifically by taking irrelevant considerations into account or failing to consider relevant ones, and whether the decision contained an error of law or was otherwise contrary to law. The applicant contended that the Minister wrongly considered the correct application of the *Paid Parental Leave Act 2010* (Cth) as a reason to deny an act of grace payment, that her disability should have been considered a "special circumstance" for an act of grace payment, and that other legislative frameworks and the broad intentions of the *Paid Parental Leave Act 2010* (Cth) were not sufficiently considered.
Judge Heffernan dismissed the application. The court found that the Minister's decision was not an improper exercise of power. The Minister correctly identified that the *Paid Parental Leave Act 2010* (Cth) did not provide for extensions of time or consideration of special circumstances, and that the act of grace mechanism was a remedy of last resort, not to be used when another viable remedy existed. The court also determined that the applicant's disability, while acknowledged, did not constitute a "special circumstance" in the context of the guidelines for act of grace payments, particularly as the applicant had not sought assistance to overcome her difficulties with the application process. The Minister's consideration of factors such as the Department of Human Services not contributing to the failure to lodge an effective claim and the existence of a statutory time limit for claims were found to be relevant considerations.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
The grounds of application are lengthy and highly particularised. It is necessary to set them out verbatim. They are as follows:“The Applicant applies to the Court to review the decision of the Respondent in its Act of Grace, request - Decision dated 8 May 2018 and Act of Grace Request - Decision dated 8 November 2018 (together, Decision) (set out in Attachment A), not to authorise an act of grace payment to the Applicant in accordance with section 65 of the Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA Act).Details of claim1.The Applicant is aggrieved by the decision because the act of grace payment has not been authorised, despite the Requests for Discretionary Financial Assistance under the PGPA Act - Resource Management Guide No. 401 (Guide) supporting an act of grace payment being made to the Applicant.2.The Applicant was entitled to receive Parental Leave Pay (PLP) in accordance with the Paid Parental Leave Act 2010 (Cth) (PPL Act), and submitted an application in time, but did not receive the PLP because she filled out the application incorrectly due to her disability.Grounds of application1.The making of the Decisions was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made, pursuant to section 5(1)(e) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), because the Respondent:(a)took irrelevant considerations into account in the exercise of a power, pursuant to section 5(2)(a) of the ADJR Act, as set out in paragraphs 2 to 12 (inclusive) of these Grounds of application; and(b)failed to take relevant considerations into account in the exercise of a power, pursuant to section 5(2)(b) of the ADJR Act as set out in paragraphs 13 to 23 (inclusive) of these Grounds of application.2.The making of the Decisions involved an error of law, whether or not the error appears on the record of the decision, pursuant to section 5(1)(f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), because the Respondent's reasoning when determining the Decisions applied the PPL Act, section 65 of the PGPA Act and case law authorities interpreting section 65 of the PGPA Act amount to an error of law.3.The making of the Decisions were otherwise contrary to law, pursuant to section 5(1)(i) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), because the Respondent's reasoning when determining the Decisions was contrary to the PPL Act, section 65 of the PGPA Act and case law interpreting section 65 of the PGPA Act.Irrelevant, error of law and contrary to law considerations included Proper application of the PPL Act considered to deny payment:4.The Decision considered that the PPL Act does not have provisions taking into account special circumstances or allowing an extension of time.5.The Decision ultimately held that legislation has been applied appropriately and therefore not produced an unintended, anomalous, inequitable or otherwise unacceptable result.6.Legislation being applied correctly is irrelevant, error of law and contrary to law for determining if special circumstances exist to authorise an act of grace payment pursuant to the framework in the Guide (Special Circumstances).7.The Guide sets out that "the act of grace mechanism is generally a remedy of last resort and is not used when there is another viable remedy available to provide redress in the circumstances giving rise to the application".8.Legislation being applied correctly is therefore a requirement to be allowed to make an act of grace application, not a relevant consideration for determining if Special Circumstances exist.Whether disability is a special circumstance considered to deny payment:9.The Decision held that the Applicant's "disability is not a special circumstance for the purpose of granting an act of grace payment".10.Examples of special circumstances that make it appropriate to approve an act of grace payment are set out in paragraph 10 of the Guide.11.The elements of the example from the Guide being relied on by the Applicant are addressed in paragraphs 13 to 23 (inclusive) of these Grounds of application.12.Whether the Applicant's disability is a special circumstance is irrelevant, error of law and contrary to law for determining if Special Circumstances exist.Other matters considered to deny payment:13.The Decision considered that "the factors against granting an act of grace payment in this instance" are:(a)the Department of Human Services (OHS) did not contribute to the failure to lodge an effective claim for PLP in the legislated time period;(b)there is no evidence that the OHS engaged in discrimination;(c)the PPL Act provides for a period of time in which to make a claim for the PLP; and(d)authorising a payment outside the applicable legislative contravene the explicit intentions of Parliament in relation to the PLP,(together, Irrelevant Factors)14.Relying on the Irrelevant Factors to deny payment of the PLP is irrelevant, error of law and contrary to law for determining if Special Circumstances exist.Relevant considerations not includedOther legislative frameworks allowing an extension of time were not sufficiently considered15.The Decision did not sufficiently give weight to other legislative frameworks and, in doing so, applied reasoning involving an error of law and contrary to law.16.Other legislative frameworks are relevant considerations to determine if the PPL Act has had an unintended, anomalous, inequitable or otherwise unacceptable result, and therefore if Special Circumstances exist.17.Other legislative frameworks provide for disability and/or error to grant extensions of time, including the legislation referenced in the Applicant’s submission to the Respondent dated 27 September 2017 (set out in Attachment 8), and therefore demonstrate that an inequitable impact and Special Circumstances exist in the Applicant's matter.The inability to adequately control a disability not sufficiently considered18.The Decision held that the Applicant did not nullify the control she had over the events leading to the circumstances under review, because she did not seek assistance. In doing so, the Decision failed to consider that the Applicant does not have the ability to adequately control her dyslexia itself, to determine if Special Circumstances exist.19.The position that the Applicant should have sought assistance contradicts her right to autonomy and breaches numerous articles of the Convention on the Rights of Persons with Disabilities, but in particular article 3(1).20.The Decision conceded that the Applicant does “not have the capacity to control (her) dyslexia” (Decision's Control Concession).21.For Special Circumstances to exist, the Guide requires the circumstances to be outside the parameters of events for which the Applicant had the capacity to adequately control.22The Decision's Control Concession satisfies that requirement.The broad intentions of the PPL Act not sufficiently considered23.The Decision failed to sufficiently consider whether the Applicant's circumstances are consistent with what could be considered to be the broad intentions of the PPL Act, to determine if Special Circumstances exist and, in doing so, applied reasoning error of law and contrary to law.24.The Applicant was entitled to receive the PLP in accordance with the PPL Act and submitted an application in time, but did not receive the PLP because she filled out the application incorrectly due to her disability.25.The broad intentions of the PPL Act therefore support payment of the PLP to the Applicant.Orders sought1.An order pursuant to section 16(1)(d) of the ADJR Act directing the Respondent to authorise payment of the PLP to the Applicant in the amount of $12,510.2.An order for reimbursement of court filing fees and annual leave taken from employment to attend court hearings, pursuant to rule 16.01 of the Federal Circuit Court Rules 2001.3.An order for payment of interest, pursuant to rule 26.01 of the Federal Circuit Court Rules 2001.”
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.