Smith v Department of Family and Community Services

[2004] FCA 1428

FEDERAL COURT OF AUSTRALIA

Smith v Department of Family and Community Services [2004] FCA 1428

COLIN SMITH v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
NSD 842 of 2004

ALLSOP J
28 OCTOBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 842 of 2004

BETWEEN:	COLIN SMITH APPLICANT
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	28 OCTOBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The “appeal” be dismissed.

2.The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 842 of 2004

BETWEEN:	COLIN SMITH APPLICANT
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT

JUDGE:	ALLSOP J
DATE:	28 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application by way of notice of appeal filed by the applicant, against the Secretary, Department of Family and Community Services. It is a notice of appeal filed purportedly pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act) which relevantly states in subsection (1) that a party to a proceeding for the Administrative Appeals Tribunal (AAT) may apply to the Federal Court of Australia on a question of law from any decision of the AAT in that proceeding.

2. It is unnecessary to list the authorities which make clear that the requirement of a question of law is a jurisdictional one for this Court, that is it is what the Court deals with, not merely as the gateway to some factual and legal investigation, but the nature of the proceedings before it is the question of law. 

3. The notice of appeal identifies in the section of the form provided pursuant to the rules under the heading:  “The Questions of Law Raised on the Appeal”, five paragraphs. They read as follows: 

   1.Whether there was repatriation order made by the DPP on the said day on the 12^th August 1999 at Downing Centre Local Court.

   2.There was a letter from the DPP to Centrelink requesting a section 21B[3] certificate which was dated 18^th August 1999.  There was no return corresspondence from Centre-Link in regard to this request this was for civil action.

   3.On the 15^th April 1999 in Penrith Local Court and & on the 12^th August 1999 Count’s 5 & 6 were dismissed in the criminal court through lack of evidence.

   4.In relation to count’s 1-4 & 7-10 there are gap’s which cannot be accounted for and also there where question’s raised in a previous A.A.T hearing which also state’s in part that they where  primarily excluded from the court procedding’s  & the respondent could only assume that not all the evidence was available at the time.  I made a written request for the evidence for count’s 1-4 & 7-10 but too this day I have not received any reply also for a copy of the reparation order.  Centre-link has alway’s said in all the correspondence that they had one on file.

   5.The D.P.P has Ms Gayler’s note’s on file which completely contradict from what I recall & have on file & what the Magistrate’s Note’s contain.  But I have not been able to obtain a copy.

4. Under the next section of the notice of appeal:  “Orders Sought”, the following appears:

   The original sentence be overturned through lack of evidence and that the criminal record be written off. And that no further criminal or civil action be taken in relation to this matter also the garnishee of my wages be stopped & no caveat caveat on my property or personal belonging’s and that I reclaim the money that has been garneshed from my wage’s an claim for the 400 hr’s of community service that I performed.

5. It can be seen at once that the orders sought are, at minimum, unusual and realistically speaking, beyond the power of this Court being a Court exercising federal jurisdiction. 

6. The fourth section of the notice of appeal identifies the “Grounds”.  They are as follows:

   1.Result of the proceeding’s  which specifically states that a repatriation order was made on the said day of the court proceedings of 12^th August 1999.

   2.Letter dated 18th August 1999 from DPP to Centre-link which was dated 6 day’s after the court hearing.

   3.Copy of the magistrate’s note’s which does not refer to an application of a repatriation order or rate of repayment. The rate of repayment was in was in relation to count’s 1 –4  & 7 –10 which was accepted by the D.P.P and the pro bona barrister who acted on my behalf.

   4.Letter from George Lozynsky in relation to the repatriation order stating that the local court bench sheet fail’s to record any repatriation order at all and also confirmation from the D.P.P in another letter.

   5.Centre-link where advised to produce the evidence for the count’s 1 –4  & 7 –10 so another hearing could be convened but they have not been forthcoming with the evidence. They have also been told to abide by the court’s ruling in regard to any repatriation order or repayment.

7. As might be able to be gleaned by a reading of the purported questions of law, the orders sought and the grounds above, this case arises out of the complaints that Mr Smith has in relation to social security payments that were paid to him in the past and the steps taken by the Department and the Director of Public Prosecutions to take action against him in relation to those sums.  Broadly speaking, and without wishing to form a view or express a view about the underlying merits, it was asserted that Mr Smith had been overpaid various payments by the Department.

8. The Department sought recovery of those funds.  As well, Mr Smith was prosecuted in relation to the obtaining of those funds, a prosecution which was successful before the Local Court.  Much dispute has taken place since the Local Court hearing as to whether a reparation order was made by the learned magistrate.  It would appear that the Local Court record may have been inadequate.  Mr Smith says a reparation order was never made.

9. As an avenue taken by Mr Smith for the correction of what he perceived as injustices, Mr Smith sought review of the decisions of Centrelink to the extent that statutory regimes made that possible.  To this end there were a number of decisions of the Social Security Appeals Tribunal (SSAT) dealing with the events of 1999 and following.  Following, those decisions of the SSAT were decisions of the AAT by way of review.  The first by Mr Handley, a senior member, on 9 April 2001, the second by Professor Sourdin on 8 April 2003.

10. Those AAT decisions are in exhibit A, being a book of relevant documents, which is before the Court.  In those decisions, the complaints of Mr Smith concerning various aspects of his treatment since 1999 were canvassed and dealt with.  The first of those two decisions of the AAT, that of Mr Handley, was the subject of an application to this Court, being matter N840 of 2001 which was completed by orders made by Gyles J on 3 September 2001 that by consent the appeal be dismissed and that there be no order as to costs.  The Court noted it was not on the merits that the mater was dismissed.

11. In September 2003, the SSAT made a decision once again in relation to the applicant's affairs.  It dealt with a decision by a review officer on 23 September 2003 that he had no jurisdiction to review the issues raised by Mr Smith because they had already been reviewed by the AAT.

12. In the decision of the SSAT dated 27 November 2003, contained in exhibit B, being the supplementary relevant documents, there is an historical and chronological analysis of the facts. The SSAT concluded that what Mr Smith was asking for is another review at an administrative level of the issues that had previously been dealt with by the two members of the AAT, Mr Handley and Professor Sourdin.

13. To that extent, it concluded that it had no jurisdiction.  By that I take the SSAT to be saying that it took the view that it had no statutory authority and warrant to re-hear a matter or a debate that had already been decided on review by the AAT.  It was that decision of the SSAT that came to the AAT once again.  On this occasion, it came before Mr Sassella, a senior member, on 27 April 2004. 

14. Prior to that 27 April 2004, and in furtherance of this most recent application, Mr Smith had placed material before the AAT.

15. Included with that material was a letter dated 19 March 2004, which was apparently received by the AAT on 20 March 2004.  Within that letter, in Mr Smith's handwriting, Mr Smith said that, amongst other things:

    I have got the right to a hearing.  I wish to apply for another hearing on the same grounds as my previous application.

16. Mr Sassella took the same view as that taken by the SSAT.  That is, that the tribunal, this time the AAT, did not have jurisdiction to deal with the matter.  Again, by this expression, I take the member to be saying that he took the view that on the proper construction and understanding of the Act, the tribunal had no authority to have re-agitated once again before it matters and decisions that had been agitated before it on prior occasions.

17. It is from that decision that the appeal is brought. It is necessary for Mr Smith to understand that this Court is not entitled on an appeal under s 44 to undertake some judicial inquiry about the wrongs that he perceives to have occurred to him in past years. What it has before it, and what the statute says it can have before it, is a question of law from any decision of the AAT, that is, a question of law from Mr Sassella's decision.

18. Mr Sassella took the view that the matter before him was being re-agitated and had been the subject of a debate and resolution at an administrative level before the AAT on the two occasions, which I have mentioned.  He had, apart from any other material before him, which led to that conclusion, Mr Smith's letter of 19 March 2004 to rely in that regard. 

19. As can be seen from the questions of law, orders sought and grounds which I have referred to earlier, the notice of appeal does not seek to identify any error of law or any question of law made by the AAT or arising from the AAT’s decision as to its lack of statutory authority to hear, in effect, a re-agitated debate. None of the questions of law identified under paragraph 2 of the application raises a question of law arising from the AAT’s conclusion and decision.  No error or question of law arises within the orders sought in respect of the AAT’s decision.  Also, when one looks at the grounds, they are bereft of any question of law arising from Mr Sassella's decision or any asserted error of law within Mr Sassella's decision.  The lack of statutory authority was not said by either the SSAT or the AAT to be a result of some principle of issue estoppel. Mr Reilly, who appeared on behalf of the respondent, did not put it on that basis either.  Rather, he put it on the basis that one can divine a statutory intention within the Act that the AAT’s functions are exhausted to the extent that the AAT deals directly with a decision under review and that the AAT has no jurisdiction to re-decide such matters on subsequent occasions.  He derives that proposition from Bogaards v McMahon (1998) 80 ALR 342 at 349-52 in the decision of Pincus J.

20. I agree with the approach and submissions of Mr Reilly.  The powers and functions of the AAT, under the Act, were not, it seems to me, intended by the Parliament to be available for repetition when they have been appropriately exercised once, though perhaps difficult questions might arise in relation to changes of circumstance and in relation to the extent to which a fresh basis for review can be said to arise.

21. Looking at the three decisions of the AAT and such of the decisions of the SSAT as are in exhibits A and B and considering the affidavit evidence of Mr Smith, in particular the text of the letter of 19 March 2004 referred to above, the conclusion reached by Mr Sassella that this was, in effect, the same matter being re-agitated appears to me to be correct and determinative of the application.

22. If the construction of the Act is such as not to give the AAT authority to hear mere repetition, as I think it is, no basis, whether coherent or otherwise, has been placed before me to attempt to convince me or which is available to begin to persuade me that there was a new matter, in effect, before the AAT in respect of which it could not be said that there was mere re-agitation of past complaints.  In those circumstances the application should be dismissed.

23. The notice of appeal was drafted by Mr Smith.  He was not legally assisted.  However, the assistance, or otherwise of lawyers is not a relevant consideration to take into account in the assessment of what this Court does under a notice of appeal such as this.  The fact is that the notice of appeal wholly fails to identify a question of law upon which this Court can act.  No such question of law arises, as I have said, from either the questions of law, the orders sought or the grounds of the appeal is identified in the notice of appeal.

24. An alternative and independent basis for the dismissal of the notice of appeal is that it wholly fails to identify any ground on which this Court can conclude that the AAT committed any error of law or that there is a question of law arising from the AAT’s decision.  In those circumstances, as I said, the application should be dismissed.  I see no basis on the evidence to vary the usual order that the losing party in a suit such as this should pay the costs. 

25. Therefore, the orders of the Court are:

    (1)   The “appeal” be dismissed.

    (2)   The applicant pay the respondent's costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             4 November 2004

The applicant appeared for himself.
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 October 2004
Date of Judgment:	28 October 2004