Peric v Secretary, Department of Education, Employment and Workplace Relations
[2011] FCA 1128
•14 September 2011
FEDERAL COURT OF AUSTRALIA
Peric v Secretary, Department of Education, Employment and Workplace Relations [2011] FCA 1128
Citation: Peric v Secretary, Department of Education, Employment and Workplace Relations [2011] FCA 1128 Appeal from: Application for extension of time: Peric v Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 314 Parties: NATASHA PERIC v THE SECRETARY OF THE DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS File number: VID 709 of 2011 Judge: GRAY J Date of judgment: 14 September 2011 Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 44(1), 44(2A)
Social Security Act 1991 (Cth)Date of hearing: 14 September 2011 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 18 Counsel for the applicant: The applicant appeared in person Solicitor for the respondent: Mr McDermott of Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 709 of 2011
BETWEEN: NATASHA PERIC
ApplicantAND: THE SECRETARY OF THE DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
JUDGE:
GRAY J
DATE OF ORDER:
14 SEPTEMBER 2011
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The application for extension of time, filed on 30 June 2011, be dismissed.
2. The applicant pay the respondent’s costs of the application.
3.The title to the proceeding be amended by substituting “The Secretary of the Department of Education, Employment and Workplace Relations” for “Centrelink” as the name of the respondent.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 709 of 2011
BETWEEN: NATASHA PERIC
ApplicantAND: THE SECRETARY OF THE DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
JUDGE:
GRAY J
DATE:
14 SEPTEMBER 2011
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Before the Court is an application for an extension of time to file and serve a notice of appeal. The applicant desires to appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”), made on 12 May 2011. By s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), such an appeal is limited to a question of law. By s 44(2A), the time within which the appeal is to be instituted is 28 days after a document setting out the terms of the Tribunal’s decision is given to the person. The Court is also given power to allow further time. It is that power that the applicant seeks to invoke.
The application was filed on 30 June 2011. The additional time the applicant needs in order to institute her appeal is therefore less than two months. According to her affidavit, the applicant was seeking legal representation and was wrongly advised that the appeal should be lodged by a lawyer. She was unable to find anyone who would take on the appeal and could not raise the money that they were asking her to pay in order to assist her. I would not refuse the extension of time on the basis of undue delay in those circumstances. The respondent, the Secretary of the Department of Education, Employment and Workplace Relations, has not suggested that there is any prejudice flowing from the delay. The application is resisted only on the basis that to grant an extension of time would be futile, because any appeal could not possibly succeed. In order to determine that issue, it is necessary to go into the circumstances of the Tribunal’s decision.
The applicant is the mother of four children and was in receipt of parenting payment and carer allowance through Centrelink, in accordance with the Social Security Act 1991 (Cth) (“the Social Security Act”). The Social Security Act contains provisions requiring recipients of social security to comply with what are called “participation requirements” which involve attempting to find work and engaging in work for a limited number of hours per week. There are also provisions under which exemptions from those participation requirements must be granted and provisions under which they may be granted in appropriate circumstances. Centrelink has policy guidelines as to when and how it should exercise the discretion to grant the non-compulsory exemptions.
The applicant applied to Centrelink for an exemption, unsuccessfully. The decision was reviewed by an Authorised Review Officer and then by the Social Security Appeals Tribunal. The applicant applied to the Tribunal for further merits review. The Tribunal affirmed the Social Security Appeals Tribunal’s decision, which in turn affirmed the decision of the Authorised Review Officer that the applicant was not entitled to an exemption.
In its reasons for decision, the Tribunal set out the relevant provisions of the Social Security Act and also, at length, the policy provisions from the manual entitled Guide to Social Security Law. The Tribunal considered whether it should not apply policy but determined that it should do so. It considered the evidence as to the entitlement of the applicant to an exemption on the basis of the need to care for her children.
The Tribunal found that the applicant was the principal carer of three children under 16 years of age who have physical and, in some cases, intellectual disabilities. The Tribunal also found that the children attended mainstream school on a full-time basis and that the applicant was not required to be on standby while they were at school. The Tribunal was therefore not satisfied that the children’s care needs were such that the applicant would have been unable to undertake 15 hours of part-time work, or alternative activities acceptable to Centrelink, which was the content of the participation requirements in her case.
It also appears from the Tribunal’s reasons that the Social Security Act was amended as from 1 July 2010, in a way that might have made it easier for the applicant to obtain the exemption that she sought. In the course of the proceeding in the Tribunal, there was a written offer of settlement to the applicant, but she refused to sign. The Tribunal also made attempts to ensure that it had further medical reports that the applicant said she had submitted to Centrelink.
The notice of appeal the applicant proposed to file describes the sole question of law which she seeks to raise as “Breach of Natural Justice”. The orders sought are:
To seek an exemption from Participating [sic] Requirements due to me caring for my 3 children with disabilities
The grounds on which the applicant proposes to rely are expressed as follows:
The member did not act fairly and reasonable [sic].
Everything I said had been totally ignored.
In her decision, a number of things are untrue.
I have not been treated fairly as I deserve by law.
They have based their decision on the wrong law that doesn’t apply to me.When the matter first came on for directions, I found it difficult to understand what question of law the applicant might be seeking to raise, or be capable of raising. As a consequence I granted her a certificate for referral to counsel, who would advise her without fee under the scheme operated by the Court. I limited that referral to advice and the drawing of any necessary documents, if thought fit. Counsel was engaged to assist the applicant and she received advice from him. She has insisted that I be made aware that he advised her that she had no case in fact or law and that counsel has subsequently applied to be discharged from the referral. That application has been granted by the registrar who administers the scheme.
Accordingly, I have offered the applicant opportunities today to try to formulate a question of law on which she might succeed. She has been unable to do so. Her concerns are factual concerns. She appears to be convinced that Centrelink has wrongly denied her an exemption to which she is entitled. She has resisted my suggestions that it would be open to her to go back to Centrelink, to direct attention to the information she says is correct, and to seek a determination under the amended Social Security Act as to whether she is entitled to some exemption.
So far as the suggestion is made that the Tribunal has applied the wrong law, it is abundantly clear that that is not the case. The Tribunal looked at the Social Security Act as it was up to 30 June 2010, and as it applied at the time when the applicant sought her exemption from participation requirements. The Tribunal applied that law. I am unable to find any suggestion from its reasoning that there was any error in the way that it did so. To the extent to which the suggested question of law might be a denial of procedural fairness, again it seems that such an error on the part of the Tribunal could not be made out. The Tribunal appears to have gone to extraordinary lengths to assist the applicant to present her case to it and to ensure, so far as it could, that it had all of the correct documents before it.
In the circumstances I can see no possibility that the applicant could formulate a question of law that would give her an entitlement to appeal from the Tribunal’s decision to this Court. She has requested that I grant her a further adjournment in order that she can try to obtain legal advice to formulate such a question. Having already adjourned the case once and arranged for legal advice to be given to the applicant, which she does not appear to accept, I am reluctant to accede to any application for a further adjournment.
It seems to me that the only appropriate course is to dismiss the application for an extension of time. Such an order is not necessarily fatal to the applicant’s desire to pursue the matter. If she were to get legal advice and identify a question of law, she would be entitled to apply again for another extension of time. Certainly, the time elapsed would be longer than the time that has elapsed in the present case. If the applicant had applied herself diligently, and not wasted time, she would have that in her favour if the Court came to consider whether it should grant a further extension of time.
In my view, the applicant would be far better advised to return to Centrelink, to make a further application for an exemption under the amended Social Security Act, and to pursue that. There appears to me to be absolutely no point in her continuing to pursue this earlier decision under the earlier version of the Social Security Act.
For these reasons, I propose to dismiss the application for an extension of time.
Counsel for the respondent has sought an order for the costs of the application. I have provided the applicant with an opportunity to see if she can make submissions to resist that order. She has continued to assert her entitlement to an exemption from participation requirements. I am reluctant to make an order for costs against someone who has three disabled children for whom she is responsible, and who finds it difficult to comply with participation requirements mandated by the legislation because of her responsibilities. I can foresee the possibility that the applicant will become so obsessed with her conviction that the wrong decision has been made that she will not let the matter rest. I have suggested to her already that, if she persists, the likely result is that she would incur costs orders against her at every turn, and she would eventually be made bankrupt. Sadly, the applicant does not appear to be receptive to that kind of advice.
In the circumstances it seems appropriate that the usual principle, that costs follow the event, should be applied. The orders I make are:
1. The application for extension of time, filed on 30 June 2011, be dismissed.
2. The applicant pay the respondent’s costs of the application.
3.The title to the proceeding be amended by substituting “The Secretary of the Department of Education, Employment and Workplace Relations” for “Centrelink” as the name of the respondent.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray. Associate:
Dated: 30 September 2011
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