Perera v Department of Families, Housing, Community Services and Indigenous Affairs
[2011] FCA 896
•1 August 2011
FEDERAL COURT OF AUSTRALIA
Perera v Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 896
Citation: Perera v Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 896 Appeal from: Perera v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 180 Parties: SUSIL PERERA v DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS File number: VID 214 of 2011 Judge: NORTH J Date of judgment: 1 August 2011 Date of hearing: 1 August 2011 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 16 Counsel for the Applicant: The applicant appeared in person Solicitor for the Respondent: Ms P Heffernan of the Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 214 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: SUSIL PERERA
ApplicantAND: DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
JUDGE:
NORTH J
DATE OF ORDER:
1 AUGUST 2011
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The application is dismissed.
2. The applicant is to pay the respondent’s costs of the application.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 214 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: SUSIL PERERA
ApplicantAND: DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
JUDGE:
NORTH J
DATE:
1 AUGUST 2011
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Before the Court is an appeal brought by the applicant, Ms Susil Perera, against a decision of the Administrative Appeals Tribunal (the Tribunal) made on 17 February 2011. The appeal relies upon s 44 of Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) which permits an appeal only on a question of law.
The respondent, the Department of Families, Housing, Community Services and Indigenous Affairs, filed a notice of motion on 15 June 2011 seeking an order under s 31A(2) of the Federal Court of Australia Act1976 (Cth) (FCA Act) that the appeal be dismissed on the basis that Ms Perera has no reasonable prospect of successfully prosecuting the proceeding.
THE DECISION OF THE TRIBUNAL
The question before the Tribunal was whether Ms Perera had been paid the correct amount of Family Tax Benefit in the financial years 2004/2005 to 2008/2009, both inclusive. The Tribunal determined several questions under the A New Tax System (Family Assistance) Act 1999 (Cth) (the Act).
The Act makes the payment of the Family Tax Benefit, Part A and Part B, dependent on the concept of adjusted taxable income. Adjusted taxable income is defined in cl 2 of Sch 3 of the Act as follows:
(1)For the purposes of this Act and subject to subclause (2), an individual's adjusted taxable income for a particular income year is the sum of the following amounts (income components):
(a)the individual's taxable income for that year;
(b)the individual's adjusted fringe benefits total for that year;
(c)the individual's target foreign income for that year;
(d)the individual's total net investment loss (within the meaning of the Income Tax Assessment Act 1997) for that year;
(e)the individual's tax free pension or benefit for that year;
(f)the individual's reportable superannuation contributions (within the meaning of the Income Tax Assessment Act 1997) for that year;
less the amount of the individual's deductible child maintenance expenditure for that year.
…
Clause 7 of Sch 3 relevantly states:
For the purposes of this Schedule, the following payments received in an income year are tax free pensions or benefits for that year:
(a) a disability support pension under Part 2.3 of the Social Security Act 1991;
In calculating the correct amount of Family Tax Benefit for Ms Perera, the Tribunal decided the following three issues:
1.That the concept of adjusted taxable income in cl 2(1)(d), Sch 3 of the Act requires the net rental property loss to be added into the figure to arrive at the adjusted taxable income;
2.That under cl 2(1)(e), Sch 3 of the Act, a Disability Support Pension is a tax-free pension because it is expressly stated to be so under cl 7, Sch 3 of the Act;
3.A Parenting Payment is not tax-free. It is part of Ms Perera’s taxable income. It is to be included in the adjusted taxable income under cl 2(1)(a), Sch 3 of the Act.
The Tribunal applied these interpretations to the calculation of the Family Tax Benefit payable to Ms Perera for each of the five years in question and set out at length her financial circumstances for each of those years.
THE NOTICE OF APPEAL
Ms Perera filed a notice of appeal on 18 March 2011. The notice of appeal was required to state the questions of law on which Ms Perera relied under s 44 of the AAT Act. Ms Perera is not legally qualified and represented herself. The notice of appeal did not state any questions of law in a readily comprehensible form, but rather narrated the facts in a way which did not expose the issues which needed to be decided. A further notice of appeal was filed by Ms Perera on 25 March 2011 in substantially the same form and with substantially the same vices.
As Ms Perera was self-represented, at the first directions hearing, she was asked to explain the essential questions of law which formed the basis of her argument. From that discussion, several questions emerged which might be regarded as questions of law, but a number of other questions arose which were matters of fact. For example, a question arose as to the circumstances in which the respondent withheld payment of social security benefits in order to satisfy what it regarded as prior overpayments. This question, and several other like matters, were dealt with by the Tribunal. Those issues did not raise any questions of law within the meaning of s 44 of the AAT Act.
As it seemed very unlikely that Ms Perera would be able to improve on the formulation of her notice of appeal, and as the issues of law which she raised orally at the directions hearing seemed dubious, the respondent was invited to make an application for summary judgment under s 31A(2) of the FCA Act, if it was so advised, on the basis that Ms Perera’s oral articulation of the questions of law should be taken as if included in a notice of appeal.
CONSIDERATION UNDER S 31A(2)
The notice of appeal does not comply with O 53 r 3(2) of the Federal Court Rules: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232; (2003) 76 ALD 321 at [17]-[18]. This would be an independent ground upon which to dismiss the proceeding under s 31A(2) of the FCA Act. However, a further ground is that the only questions of law which emerge from the written and oral submissions made by Ms Perera are untenable.
First, Ms Perera argued that cl 2(1)(d), Sch 3 of the Act requires the net rental property loss to be deducted from the amount of the adjusted taxable income. This is expressly contradicted by the opening words of the subclause which provides for the items, including net rental property loss, to be added together to reach the adjusted taxable income.
Next, Ms Perera said that the Disability Support Pension does not fall within cl 2(1)(e), Sch 3 of the Act because it is exempt income. That is a description which comes from other legislation. Ms Perera said that that description applies in the ascertainment of the adjusted taxable income. However, this is contradicted by cl 7(a), Sch 3 of the Act which expressly provides for the Disability Support Pension to be a tax-free pension for the purposes of Sch 3 of the Act.
Finally, Ms Perera said that a Parenting Payment is exempt income, again, by reference to other legislation. But such legislation has no effect on the definition of adjusted taxable income in Sch 3 of the Act. A Parenting Payment is taxable income within the meaning of cl 2(1)(a), Sch 3 of the Act.
Consequently, so far as one can extract from the lengthy submissions and other documents of Ms Perera, the only potential questions of law which emerge are ones which cannot succeed.
It follows that the proceeding will be dismissed on the basis that Ms Perera has no reasonable prospect of successfully prosecuting the appeal.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 8 August 2011
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