Tait v Harvey - [2003] FCA 439

FEDERAL COURT OF AUSTRALIA
Tait v Harvey [2003] FCA 439
ADMINISTRATIVE LAW - social security - jurisdiction of the Social Security Appeals Tribunal - whether applicant entitled to a review of decisions in relation to Newstart Allowance
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 15, 16, 25(5)
Social Security Act 1991 (Cth) Pt 2.12
Social Security (Administration) Act 1999 (Cth) ss 178, 179, 142, 144, 181
Park Oh Ho v Minister for Immigration and Ethnic Affairs (1987) 14 FCR 274 Cited
Minister for Community Services and Health v Dibo Pty Ltd (1992) 38 FCR 292 (FC) Cited
Vamuta Pty Ltd v Sogo Co Ltd (1996) 68 FCR 151 Cited
Australasian Meat Industry Employees’ Union v G & K O’Connor Pty Ltd [2001] FCA 508 Cited
QAAE of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1213 Cited
Kooma Aboriginal Corp for Land v Goolburri Regional Council of the Aboriginal and Torres Strait Islander Commission [1999] FCA 82 Cited
Woss v Jacobsen (1984) 4 FCR 356 (Full Court); (1985) 60 ALR 313 Cited
Perry v Director of Public Prosecutions (1985) 6 FCR 578 Cited
Domaine Finance Pty Ltd v Commissioner of Taxation (1985) 8 FCR 538 Cited
Lees v Comcare [1999] FCA 753 (FC) Cited
WILLIAM “BILLY” PETER TAIT v REGISTRAR OF THE SOCIAL SECURITY
APPEALS TRIBUNAL ROB HARVEY, THE OFFICE OF CENTRELINK, THE
ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY HON SENIOR
MEMBER KL BEDDOE, THE DEPUTY REGISTRAR OF THE ADMINISTRATIVE
APPEALS TRIBUNAL DEBRA HARRIS, THE HON SENIOR MEMBER OF THE
ADMINISTRATIVE APPEALS TRIBUNAL KL BEDDOE, AND THE
COMMONWEALTH OF AUSTRALIA
Q196 OF 2001
COOPER J
BRISBANE
9 MAY 2003

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q196 OF 2001

BETWEEN:

WILLIAM “BILLY” PETER TAIT
APPLICANT

AND:

REGISTRAR OF THE SOCIAL SECURITY APPEALS TRIBUNAL ROB HARVEY
FIRST RESPONDENT

THE OFFICE OF CENTRELINK
SECOND RESPONDENT

THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY HON SENIOR MEMBER KL BEDDOE
THIRD RESPONDENT

THE DEPUTY REGISTRAR OF THE ADMINISTRATIVE APPEALS TRIBUNAL DEBRA HARRIS
FOURTH RESPONDENT

THE HON SENIOR MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL KL BEDDOE
FIFTH RESPONDENT

THE COMMONWEALTH OF AUSTRALIA
SIXTH RESPONDENT

JUDGE:

COOPER J

DATE OF ORDER:

9 MAY 2003

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1. The application for orders for review is dismissed.
2.The applicant to pay the respondents’ costs of and incidental to the application, including reserved costs, if any, to be taxed if not agreed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q196 OF 2001

BETWEEN:

WILLIAM “BILLY” PETER TAIT
APPLICANT

AND:

REGISTRAR OF THE SOCIAL SECURITY APPEALS TRIBUNAL ROB HARVEY
FIRST RESPONDENT

THE OFFICE OF CENTRELINK
SECOND RESPONDENT

THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY HON SENIOR MEMBER KL BEDDOE
THIRD RESPONDENT

THE DEPUTY REGISTRAR OF THE ADMINISTRATIVE APPEALS TRIBUNAL DEBRA HARRIS
FOURTH RESPONDENT

THE HON SENIOR MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL KL BEDDOE
FIFTH RESPONDENT

THE COMMONWEALTH OF AUSTRALIA
SIXTH RESPONDENT

JUDGE:

COOPER…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Tait v Harvey 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

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] FCA 439
Decision Date: 9 MAY 2003

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Tait v Harvey involved the applicant, Tait, appealing the decisions made by Centrelink regarding his Newstart Allowance. The dispute centred around the applicant's contention that Centrelink had failed to pay him his fortnightly allowance and had not reviewed certain decisions before the Social Security Appeals Tribunal (SSAT) accepted his appeals. The applicant had lodged two appeals with the SSAT, both of which were rejected on the basis that the decisions had not been reviewed by an authorised review officer as required by the Social Security (Administration) Act 1999.

The court had to determine whether the SSAT had jurisdiction to hear the appeals before the decisions were reviewed by an authorised review officer and whether Centrelink's imposition of a breach on the applicant for failing to attend a "Work for the Dole" interview was lawful. The central legal issues revolved around the interpretation and application of the statutory requirements for review and the procedural fairness in the imposition of the breach and subsequent suspension of the applicant's allowance.

The court found that the SSAT did not have jurisdiction to hear the appeals until the decisions had been reviewed by an authorised review officer, in line with section 135 of the SSA Act. The court also considered the procedural fairness in the imposition of the breach and the subsequent suspension of the applicant's Newstart Allowance. It was determined that Centrelink had acted within its authority in imposing the breach and suspending the allowance due to the applicant's failure to attend the required interview. The court found no fault in the procedural fairness or the substantive decisions made by Centrelink.

As a result, the application for orders for review was dismissed. The applicant was ordered to pay the respondents' costs of and incidental to the application, including reserved costs, if any, to be taxed if not agreed.

Orders

Orders of the court

1. The application for orders for review is dismissed.

2. The applicant to pay the respondents’ costs of and incidental to the application, including reserved costs, if any, to be taxed if not agreed.

Note:

Background

Background to the litigation

For the purposes of this application, it is convenient to deal with the case advanced against each of the respondents in turn and to commence with the background which gave rise to the application. BACKGROUND At all material times the applicant was a recipient of Newstart Allowance payable under Part 2.12 of the Social Security Act 1991 (Cth). On 25 January 2001, he received an allowance advance of $500. On 29 May 2001, an amount of $300 was transferred to the applicant by electronic benefit transfer. On 30 May 2001, an amount of $19.30 was credited to his bank account and an amount of $38.50 was withheld and set off against the sum paid by way of advance in January 2001. In total, $357.80 was paid to the applicant. By facsimile on 4 June 2001 and by letter on 6 June 2001, the applicant lodged an appeal with the Social Security Appeals Tribunal (“the SSAT”). That appeal was against an alleged decision of Centrelink not to pay to him his fortnightly allowance in due course, and Centrelink’s continuing failure to pay the allowance after the applicant lodged an “application for payment” form on 28 May 2001. At the time the appeal was lodged with the SSAT, the alleged decisions (which were the subject of the appeal) had not been reviewed by an authorised review officer as required by s 135 of the Social Security (Administration) Act 1999 (Cth) (“the SSA Act”). The appeal was given the number B22406 by the SSAT. The materials filed by the applicant and the respondents disclose that the Newstart benefit in respect of which the appeal was filed was that which was paid on 29 and 30 May 2001 as indicated above. On 13 June 2001, the applicant received $357.80 Newstart Allowance being $319.30 paid to his bank account and $38.50 withheld and set-off against the lump sum advance of January 2001. On 15 June 2001, the applicant lodged a further appeal with the SSAT. The appeal was against an alleged failure to make the Newstart payment on 11 June 2003 and the alleged failure to provide a replacement payment on 12 June 2001. At the time the appeal was lodged, the decisions, which were the subject of the appeal, had not been reviewed by an authorised review officer pursuant to s 135 of the SSA Act. The appeal was given the number B22461 by the SSAT. The Newstart Allowance the subject of the appeal was that paid to the applicant on 13 June 2001. By letters dated 15 June 2001, the first respondent advised the applicant that the SSAT had no power to accept or hear the two appeals until the decisions appealed against had been reviewed by an authorised review officer of Centrelink. On 29 June 2001, Centrelink made a decision to impose an activity test breach on the applicant for failing to attend a “Work for the Dole” interview with Work Tracks, a Job Network member. By letter dated 6 July 2001, the applicant was advised by Centrelink of its decision to suspend his Newstart Allowance owing to his failure to attend an interview to discuss “Work for the Dole” arrangements and that an activity test breach of 18 percent was imposed for twenty-six weeks beginning 6 July 2001. The applicant was also advised that if he did not lodge an “Application for Payment” form his Newstart Allowance would be cancelled. On 9 July 2001, Centrelink made an immediate payment reduction of $116.17 from the applicant’s Newstart Allowance.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

COOPER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: COOPER J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q196 OF 2001

BETWEEN:	WILLIAM “BILLY” PETER TAIT APPLICANT
AND:	REGISTRAR OF THE SOCIAL SECURITY APPEALS TRIBUNAL ROB HARVEY FIRST RESPONDENT THE OFFICE OF CENTRELINK SECOND RESPONDENT THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY HON SENIOR MEMBER KL BEDDOE THIRD RESPONDENT THE DEPUTY REGISTRAR OF THE ADMINISTRATIVE APPEALS TRIBUNAL DEBRA HARRIS FOURTH RESPONDENT THE HON SENIOR MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL KL BEDDOE FIFTH RESPONDENT THE COMMONWEALTH OF AUSTRALIA SIXTH RESPONDENT
JUDGE:	COOPER J
DATE OF ORDER:	9 MAY 2003
WHERE MADE:	BRISBANE