Secretary, Department of Employment, Education, Training and Youth Affairs v Messenger, Adam
[1997] FCA 1089
•16 OCTOBER 1997
FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE LAW - appeal from decision of Administrative Appeals Tribunal - whether error of law
SOCIAL SECURITY - newstart allowance - whether s 45(6) of the Employment Services Act 1996 exclusively defines whether a person is taking reasonable steps to comply with the terms of a Case Management Activity Agreement
PRACTICE AND PROCEDURE - whether declaratory relief should be granted where matters on appeal are yet to be determined
Administrative Appeals Tribunal Act 1975 s 44
Employment Services Act 1994 ss 45, 46
Department of Employment, Education and Youth Affairs v Daryl Ferguson, (Mansfield J, 24 July 1997, unreported), applied
Gregory v Philip Morris Ltd (1988) 80 ALR 455, applied
SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION, TRAINING AND YOUTH AFFAIRS v ADAM MESSENGER
VG 128 of 1997
MARSHALL J
MELBOURNE
16 OCTOBER 1997
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 128 of 1997
BETWEEN:
SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION, TRAINING AND YOUTH AFFAIRS
ApplicantAND:
ADAM MESSENGER
Respondent
JUDGE:
MARSHALL J
DATE:
16 OCTOBER 1997
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This is an appeal from a decision of the Administrative Appeals Tribunal (“AAT”) pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”). Section 44(1) of the AAT Act provides that:
“A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.”
The decision the subject of this appeal, was given by Mrs Dwyer, a Senior Member of the AAT, on 18 February 1997. The AAT’s decision affirmed a decision of the Social Security Appeals Tribunal (“SSAT”) of 8 July 1996. The SSAT set aside a decision made by a delegate of the applicant, as affirmed by an authorised review officer, to cancel Mr Messenger’s newstart allowance for failure to comply with a term of his Case Management Activity Agreement (“the agreement”).
FACTUAL BACKGROUND
Mr Messenger has been unemployed since 6 March 1992. On 24 October 1995 he entered into the agreement pursuant to Division 3 of Part 4.4 of the Employment Services Act 1994 (“the ES Act”).
In Department of Employment, Education and Youth Affairs v Daryl Ferguson, (24 July 1997, unreported), Mansfield J at 2 conveniently summarised the case management system provided by the ES Act in the following way:
“Chapter 4 of the ES Act establishes the case management system. It provides how persons become participants in that system, and how such a participant is then interviewed and then referred to a nominated case manager. That sets in train a one to one service to job seekers to endeavour to place them in suitable and sustainable employment. The vehicle for that arrangement is a Case Management Activity Agreement, to be negotiated between the job seeker and the case manager: s 38. There are provisions as to how it is to be negotiated in s 38, and as to its terms in s 39. Section 44 deals with the consequences of failure to negotiate a Case Management Activity Agreement. Section 45 deals, amongst other things, with the consequences of not properly performing a Case Management Activity Agreement.”
As part of the agreement Mr Messenger was obliged to accept referral to suitable jobs from his case manager.
On 3 January 1996 Mr Messenger’s case manager, Ms Locke, caused a notice dated the previous day, to be left at Mr Messenger’s residential address in Adelaide advising him of a work placement at a Brashs Music Store in Adelaide and further advising him to contact “Workskil” by 8 January 1997 to facilitate the taking up of the placement.
On 9 January 1996, after Mr Messenger’s failure to attend the music store on 8 January 1996, Ms Locke attempted to contact Mr Messenger by telephone at his Adelaide address but was advised, apparently by Mr Messenger’s flatmate, that Mr Messenger was unable to be contacted and had left no forwarding address. This was despite the fact that the flatmate knew where Mr Messenger was and knew how to contact him in Melbourne but did not give that information to Ms Locke. A determination was made by a delegate of the applicant to cancel Mr Messenger’s newstart allowance for failure to comply with the agreement.
Mr Messenger had previously informed Ms Locke that he frequently travelled to Melbourne to play in a band. The AAT in its decision found it:
“... probable that, as Mr Messenger said, he had asked his flatmate to pass on messages but Dave, the flatmate, did not tell Ms Locke how to get in touch with Mr Messenger, because he did not like dealing with authority figures.”
REASONING OF THE AAT
The AAT found that Mr Messenger did not comply with a term of the agreement which required him to “accept referral to suitable jobs and new work opportunities from his case manager.”
The AAT posed the question for it to answer as “whether Mr Messenger took ‘reasonable steps’ to comply with his Case Management Activity Agreement.” It next set out the provisions of sub-sects 45(1), 5(b) and (6) of the ES Act and described the “test of reasonable steps” has having “two elements”. These elements were described in the following way
“ The first is whether the main reason for failing to comply involved a matter that was within Mr Messenger’s control. I find that the main, and in fact the only reason, Mr Messenger did not accept the referral to a music store ... was that he did not know about it. I accept his evidence that he would have loved that job and regrets very much having missed out on it. If Mr Messenger’s flatmate had rung him about the courier message when he himself arrived back in Adelaide, or had told the case manager how to contact Mr Messenger, he may well have been able to get back in time for the job or to arrange for it to be held until he got back. I find that the fact that the flatmate was probably away when the courier’s message arrived, and then did not pass it on to Mr Messenger when he himself arrived back in Adelaide, was not within Mr Messenger’s control.
The second element of the test requires consideration of whether or not the circumstances that prevented Mr Messenger complying with the terms of his Case Management Activity Agreement were reasonably foreseeable by him. Mr Todd suggested that it was reasonably foreseeable by Mr Messenger that his flatmate might have been unreliable in passing messages on to him. It is true that Mr Messenger said in evidence that he had some problems with his flatmate but he said he thought the flatmate would pass on messages. He also said that he thought they had even spoken on the phone while Mr Messenger was still in Melbourne and the message had not been passed on. I do not find that it was reasonably foreseeable that the flatmate would not pass on to Mr Messenger a message which arrived for him by courier. It may be that the flatmate did not pass the message on because he did not know what was in the message as it was in an envelope. If he had known the content of the message, he would have known that it would have interested Mr Messenger.”
Two further aspects of “reasonable foreseeability” were dealt with by the AAT. In this context it added:
“Nor do I think it was reasonably foreseeable that a job offer would come to Mr Messenger after Christmas, in the Christmas/New Year period while he was away playing with his band. Mr Messenger’s case manager and work skills contact person both knew that he was often away over weekends playing in a band and that he hoped to make that work remunerative.
...I find it was not reasonably foreseeable that, without any warning prior to Christmas, Mr Messenger would receive a message on 3 January requiring him to report for a work interview on the next Monday, 8 January. Many people are away from home over the two weeks after Christmas and, without warning, I cannot say that it was reasonably foreseeable that Mr Messenger would receive an important message from his case manager that week.”
THE RELEVANT LAW
Section 45 of the ES Act relatively provides:
“45(1) This section applies to a person who is a participant in the case management system throughout a particular period (the “participation period”).
...
(5) The person is not qualified for a job search allowance or a newstart allowance in respect of a period unless (in addition to meeting any other requirements set out in the Social Security Act 1991):
(a)when the person is required under section 38 to enter into a Case Management Activity Agreement in relation to the period, the person enters into that agreement; and
(b)while the agreement is in force, the person satisfies the Employment Secretary that the person is taking reasonable steps to comply with the terms of the agreement; and
(c)at all times during the period when the person is a party to the agreement, the person is prepared to enter into another such agreement instead of the existing agreement if required to do so under section 38.
(6) For the purposes of paragraph (5)(b), a person is taking reasonable steps to comply with the terms of a Case Management Activity Agreement unless the person has failed to comply with the terms of the agreement and:
(a)the main reason for failing to comply involved a matter that was within the person’s control; or
(b)the circumstances that prevented the person from complying were reasonably foreseeable by the person.”
Each party in the appeal before the Court agreed that the applicable law was correctly stated by Mansfield J in Ferguson. I concur with those views.
At 7 in the context of the circumstances before the AAT in Ferguson, Mansfield J said:
“The Tribunal, and the parties, appear to have accepted or assumed that the failure to attend the meeting on the occasion notified in the letter did amount to a failure to comply with the terms of the agreement, and therefore directed their attention to s 45(6) of the ES Act. It also seems to have been assumed by the Tribunal (contrary to the submission of both counsel for the applicant and for the amicus curiae on this hearing) that s 45(6) defines the circumstances in which a person will be found to have failed to have taken reasonable steps to comply with the terms of an agreement. In other words, the Tribunal seems to have assumed that if a person has in fact failed to comply with the terms of a Case Management Activity Agreement, then unless such failure is due to one of the reasons set out in sub-pars (a) or (b) of subs (6), there will inevitably be a finding of a failure to take reasonable steps to comply with the terms of the agreement. Nor do the precise steps for the decision maker in the process leading to the ultimate decision, as provided by the legislation, appear to have been fully addressed. It was, given the reasons of the Tribunal, unnecessary for it to do so.
Because it seems to have been assumed by the Tribunal, if not by the initial decision maker, that there was a breach of the agreement by the respondent by the failure to attend the interview, and that therefore unless the respondent fell within either subclauses (a) or (b) of s 45(6) of the ES Act, then ipso facto there had been a failure to take reasonable steps to comply with the agreement, the focus on the Tribunal was on those subclauses. Furthermore, its focus was in the context that the consequence of the respondent not falling within either of those subclauses would be that the decision would be upheld.
For reasons which appear below, I think that reflects a mistaken apprehension as to the inter-action of subss (5) and (6) of s 45 of the ES Act, and thus gives to the subclauses of subs (6) an interpretation which was designed to produce a result which I think s 45(5)(b) itself achieves or can achieve in appropriate cases.”
Later at 12-13 his Honour said:
“It is important to observe that s 45(5)(b) has primacy over s 45(6) of the ES Act. It is explicit. The consequence which s 45(5) provides for will only arise, relevantly, if the respondent satisfies the Employment Secretary that he is taking reasonable steps to comply with the terms of the agreement. Section 45(6) then provides the threshold over which the Employment Secretary must pass before any onus lies on the respondent to satisfy the Employment Secretary that he is taking reasonable steps to comply with the terms of the agreement. So long as he has not failed to comply with the terms of the agreement, he is necessarily to be taken as taking reasonable steps to comply with the agreement. If he has failed to comply with the terms of the agreement, he is still to be taken as taking reasonable steps to comply with the agreement if
(a)the main reason for that failure involved a matter that was within his control, or
(b)the circumstances that prevented his compliance were not reasonably foreseeable by him.
In a practical sense, therefore, if he has not failed to comply with the terms of the agreement or if any failure was something that he could not reasonably have done anything about, then he is safe from otherwise having to satisfy the Employment Secretary under s 45(5)(b) of the ES Act.
It does not follow that if he has failed to comply with the terms of the agreement, and either that failure was within his control or that the circumstances that prevented compliance were reasonably foreseeable by him, then necessarily he will not satisfy the Employment Secretary that he is taking reasonable steps to comply with the terms of the agreement. Section 45(6) of the ES Act is not expressed to be a definition of the circumstances in which there will be the taking of reasonable steps to comply with the terms of the agreement. It could have done so, but it does not. It operates only to prescribe circumstances where a person will be taking such steps.”
Mansfield J held in Ferguson that the AAT erred in law by construing s 45(6) as setting down a complete and defining test of what constituted reasonable steps by a person to comply with the terms of a Case Management Activity Agreement.
At 16 his Honour held that the AAT: “... erred in assuming that s 45(5)(b) had no work to do once the respondent fell within s 45(6)(a) or (b).” At 17 Mansfield J described s 45(5)(b) of the ES Act as posing:
“... the wider question as to the conduct of the recipient of newstart allowance in relation to the agreement, which does not simply look to the particular failure to comply with the terms of the agreement, it would not follow as a matter of course, if the person forgot an appointment (as happened here) and that did amount to a failure to comply with the terms of the agreement within that person’s control and/or which was reasonably foreseeable (assuming those matters), that that person had not been taking reasonable steps to comply with the terms of the agreement. That would depend in other respects upon the person’s attitude to performance of the terms of the agreement, attendances on other occasions, attempts to seek work and the range of information. It does not appear that that decision was addressed in that way here, although the approach of the initial decision maker may implicitly suggest that that decision maker decided that issue by rejecting the excuse. I do not think the Tribunal approach the matter that way.”
THE COMPETING SUBMISSIONS
Ms D S Mortimer, of counsel, appeared for the applicant. She submitted that the AAT did not approach the issue before it correctly. Ms Mortimer contended that s 45(6) of the ES Act:
“.... acts as a filter for those people who should, notwithstanding that they have failed to comply with their case management activity agreement, not be prima facie considered to have not taken reasonable steps.”
She later described it as:
“... a filter through which people must pass before there is any kind of onus on them to satisfy the employment secretary under s 45(5)(b).”
In other words she effectively contended that whether or not a person is taking reasonable steps to comply with a relevant agreement is a wider issue than the circumstances referred to in s 45(6) of the ES Act. In other words if one does not meet the circumstances referred to para (a) or (b) of s 45(b) of the ES Act, that is not the end of the matter in the AAT’s determination of whether reasonable steps had been taken by the person in question. Ms Mortimer further submitted that it is erroneous to approach the matter on the basis that if one falls foul of s 45(6) of the ES Act, a cancellation of one’s allowance automatically follows.
Mr D I Meadows, of counsel, who appeared for Mr Messenger, submitted that it was unnecessary for the AAT to go to s45(5)(b) of the ES Act once it had determined that a person’s failure to comply with a relevant agreement arose as a result of the circumstances referred to in s 45(6)(a) or (b) of the ES Act. Mr Meadows submitted that the AAT’s need to examine s 45(5)(b) of the ES Act “simply never arose”. He later referred to evidence given by Mr Messenger which allowed the AAT to make a finding based on s 45(6) of the ES Act which he described as “a key finding”.
I effectively put to Mr Meadows that the reasoning of the senior member demonstrated that the AAT saw s 45(6) of the ES Act as establishing that the “test of reasonable steps has two elements”. In reply Mr Meadows said:
“Yes, your Honour. In that paragraph, the Tribunal arguably fails to adopt the Ferguson construction. But I have submitted, your Honour, that that is of no consequence because the Ferguson construction could only have benefited Mr Messenger.”
CONCLUSION
In my view the approach of the AAT to the construction of s 45 of the ES Act in this matter is not relevantly distinguishable from the approach taken by the AAT in Ferguson as described by Mansfield J. In so finding I do not intend any criticism of the AAT as its decision was given prior to the judgment in Ferguson being delivered.
In my opinion the AAT in this matter incorrectly saw s 45(6) of the ES Act as exclusively defining what can be considered to be the taking of reasonable steps to comply with the terms of the agreement. As Ferguson illustrates that is a wider concept than the circumstances identified at paras (a) and (b) of s 45(b) of the ES Act.
Mr Meadow’s response to my question about the reasoning of the AAT as set out above illustrates the difficulty I have in accepting his contention that the reasoning process of the AAT disclosed no error of law.
Other reasons were advanced by Ms Mortimer in support of her submission that the AAT had erred in law. Having agreed with Ms Mortimer’s submissions on the issue as to the correct approach to the construction of ss 45 and 46 of the ES Act, I do not find it necessary to deal with those other submissions.
ORDER
Ordinarily at this stage given my finding that the AAT erred in law in its decision, the subject of this appeal, I would simply allow the appeal. However, Mr Meadows sought to rely on a notice of contention which was filed on 8 September 1997, some few days before the hearing of the appeal. The notice of contention alleged that certain errors of law had been made against the interests of Mr Messenger and that the appeal should be dismissed having regard to those errors. Ms Mortimer effectively opposed the Court granting leave to Mr Messenger to enable the contention raised by him to be dealt with on the appeal. It appears that Order 53 r 13(3) of the Federal Court Rules intends that any such contention be provided to the applicant prior to the settling of the appeal book and that otherwise the Court’s leave would be required for the respondent to rely on any such contention.
Ultimately the Court informed the parties prior to the conclusion of oral argument that it would reserve, if necessary, the question of whether Mr Messenger should be able to raise the matters in his notice of contention at a later stage. Mr Meadows agreed with that course. Ms Mortimer did not oppose it. It would not have been necessary to consider the issue further had the Court accepted the submissions of Mr Meadows that no error of law had been disclosed in the reasoning process of the AAT as to what constituted “reasonable steps” in the context of ss 45 and 46 of the ES Act.
In raising with counsel the likely future programming of this appeal to resolve any outstanding issue relating to Mr Messenger’s contention I effectively informed counsel that in the event that I agreed with the submissions of Ms Mortimer on the “reasonable steps” issue I would make a declaration identifying the relevant error of law and adjourn the matter for further directions. However, it is possible that if I allow the contention to be raised and I am persuaded by it, the appropriate order might be to dismiss the appeal. In so saying I stress that I have no present view as to whether I should give leave for the contention to be raised. No doubt an issue which might arise at that stage would be the utility in the Court so doing.
In the event that the appeal is ultimately dismissed it would, in my view, transpire that any declaration which I might have made would be of academic interest only. See Gregory v Philip Morris Ltd (1988) 80 ALR 455 at 482, where Wilcox and Ryan JJ said:
“By way of an alternative to specific performance, the appellant seeks a declaration that his employment was not lawfully terminated. There are circumstances in which the making of a declaration upon such a matter may serve a useful purpose; for example, where some ancillary benefit can thereby be obtained. But in this case, if specific performance is refused, the making of a declaration will not achieve any useful purpose. We bear in mind what was said by Barwick CJ and Jacobs J in Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 at 307; 3 ALR 151 at 168: ‘Unless the parties are agreed on the consequences which flow from a declaration that such a contract has or has not been validly rescinded it is generally undesirable that the court should so declare without any orders for consequential relief.’ ”
Therefore what I propose to do is to adjourn the appeal until 2.15 pm on 27 October 1997 at which time I will hear submissions on the question as to whether the Court should give leave to Mr Messenger to rely on the matters raised in his notice of contention. If such leave is given the further hearing of the appeal will be programmed. If such leave is refused an order will be made allowing the appeal and remitting the matter back to the AAT for its determination in accordance with law.
I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall
Associate:
Dated:
Counsel for the Applicant: Ms D S Mortimer Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr D I Meadows Solicitor for the Respondent: Caitlin English, Public Interest Law Clearing House Date of Hearing: 12 September 1997 Date of Judgment: 16 October 1997
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