Vatarescu v The Commonwealth of Australia
[2009] FMCA 1041
•16 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VATARESCU v THE COMMONWEALTH OF AUSTRALIA | [2009] FMCA 1041 |
| ADMINISTRATIVE LAW – Cause of action – legal remedy – summary judgment. |
| Federal Court of Australia Act 1976 (Cth) s.31A Federal Magistrates Act 1999 (Cth), s.17A(2), (3) Social Security Act 1991 (Cth) |
| Abebe v Commonwealth (1999) 197 CLR 510 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (2008) 252 ALR 41 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 246 ALR 465 Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Skoljarev v Australian Fisheries Management Authority (1995) 133 ALR 690 Waterford v The Commonwealth (1987) 163 CLR 54 White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 |
| Applicant: | ANDREI VATARESCU |
| Respondent: | THE COMMONWEALTH OF AUSTRALIA FOR THE AGENCY OF CENTRELINK |
| File Number: | CAG 15 of 2009 |
| Judgment of: | Neville FM |
| Hearing date: | 12 October 2009 |
| Date of Last Submission: | 12 October 2009 |
| Delivered at: | Canberra |
| Delivered on: | 16 October 2009 |
REPRESENTATION
| Advocate for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr D. O’Donnovan |
| Solicitors for the Respondent: | Ms T. Williams |
ORDERS
The Application filed 9th April 2009 be dismissed.
The Applicant to pay the Respondent’s costs as agreed or taxed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAG 15 of 2009
| ANDRI VATARESCU |
Applicant
And
| THE COMMONWEALTH OF AUSTRALIA FOR THE AGENCY OF CENTRELINK |
Respondent
REASONS FOR JUDGMENT
A. Introduction
Dr Vatarescu has a grievance. It may be that he has more than one. The question for immediate determination is whether that grievance, or those grievances, constitute a wrong or cause of action that attracts or otherwise warrants this Court to provide a legal remedy.
In his own words (as set out in his written submission handed up in Court on 12th October 2009, and in his email to the Minister for Broadband, Communications and the Digital Economy dated 25th May 2009) Dr Vatarescu seeks to develop “a ... framework in Australia in relation to the fibre-optic broadband network.” While pursuing this project he has engaged with Centrelink and the Job Network scheme. It is this engagement with Centrelink and the Job Network Scheme that has attracted his complaint now ventilated in this Court.
Dr Vatarescu makes similar statements in his Application filed on 9th April 2009. In the “Grounds of application”, Dr Vatarescu stated: “In a remarkable example of twisted logic, the Centrelink decision does not disprove the incompetence and ignorance demonstrated by the Job Network service provider, but blames the customer for the shortcomings and failures resulting from the non-implementation of the Job Network legislation and its guidelines.” (Emphasis in original.)
As is clear from the statement just quoted, Dr Vatarescu asserts (I emphasise “asserts” as opposed to “proves” or “establishes”) that the Job Network scheme has failed him. He submits that Centrelink has failed to implement a range of Guidelines issued, he says, pursuant to un-named sections of the Social Security Act 1991.
He further contends that a range of representations have been made, for example, in the Job Seeker’s Guide to Job Network, which have not been fulfilled. He complains of significant incompetence on the part of Centrelink. In his own words, as set out in Appendix A to his Application for an Order of Review, filed on 18th May 2009, Dr Vatarescu states: “The incorrigible incompetence of the Centrelink Participation Unit (CPU) is demonstrated by their inability to comprehend that the Job Network scheme can offer nothing to highly skilled professionals in a modern field of science and technology.”
He contends that, in effect and in practical terms, as a highly qualified person, he has been discriminated against by the Job Network Scheme – precisely because he is so highly qualified, and because his qualifications are in a science discipline. He contends that there has been no correlation between what the Job Network Scheme advertises and promotes in terms of services, and what someone with his qualifications has actually experienced.
He goes so far as to state that his situation has resulted in a “fraud” being committed because public funds are, in his view, being wasted by payment to the Job Network service provider for inadequate or unsatisfactory services to Dr Vatarescu. I pause briefly here to observe that Dr Vatarescu is a self-represented litigant. His use of the term “fraud” clearly is in a more generic sense, rather than in a specific, legal sense.
For the sake of completeness, I note that Dr Vatarescu has brought separate challenges (in 2007 & 2009 respectively) in the Administrative Appeals Tribunal against (a) the Department of Employment and Workplace Relations, in relation to his receipt of Newstart Allowance, and against (b) the Department of Education, Employment and Workplace Relations arising out of two appeals against decisions of the Social Security Appeals Tribunal, also relating to his Newstart Allowance. The complaints in those proceedings have some similarity to those made in this Court.
The Respondent contends that, whatever Dr Vatarescu’s complaint is or complaints are, either they are so vague (a) as to be incapable of determining what the particular decision is or was against which he seeks redress, (b) to determine if there is a relevant decision, or (c) if there is a valid complaint, it is not one that is recognised in law. Accordingly, so the Respondent argues, Dr Vatarescu’s complaint or grievance has no possible prospect of success and should be dismissed. To this end, the Respondent seeks relief under s.17A(2) of the Federal Magistrates Act 1999 (Cth). That section deals with “summary judgment.”
Section 17A(2) is the sub-section most directly in point here. It provides for summary judgment in circumstances where the Court is satisfied that “the other party has no reasonable prospect of successfully prosecuting the proceeding.” Subsection (3) notes that a proceeding need not be either “hopeless” or “bound to fail” for the Court to grant relief by way of making an order for summary judgment.
B. Procedural Matters
Procedurally, the following should be noted. The proceedings were commenced in April this year. An Application for an Order of Review was filed in May. In early June orders were made that provided a short time-table for the provision of particulars and a response, as well as for the filing of submissions.
On 21st July, I made further orders that provided for a timetable for the filing of documents in relation to the summary judgment application which the Respondent wished to pursue. That time-table was generally complied with and the formal application seeking the summary disposal of the Application was filed on 4th August.
C. Legal Considerations
It is undeniable that Courts are able to review the scope and operation of “guidelines.” So much was recognised in the Full Court of the Federal Court judgment of French & Drummond JJ in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 206.
However, I am particularly mindful of the observations of Davies J in Skoljarev v Australian Fisheries Management Authority (1995) 133 ALR 690, at 696, where his Honour said:
Absent a statutory provision requiring compliance with policy, a decision-maker may depart from policy and, in an appropriate case, should do so. It is impossible to define or delineate the circumstances in which departure from policy is justified. Much depends upon the nature and context of the decision to be made, the nature of the policy to which regard is to be had and the nature of the individual circumstances to which attention is directed.
His Honour continued, at p.699, saying that “hardship to the individual was only one factor to be taken into consideration.”
The above cases, and many others, accent the very significant level of discretion exercised by decision-makers. In the absence of some legal error, that decision, and the discretion exercised in making it, will be interfered with by a court only in circumstances where a clear legal basis to do so is established. The legal basis for intervention is restricted to errors of law; review of the merits of a decision is not permitted. As well, it is well established that even if there were errors of fact, of itself, this would not amount to an error of law, and thereby warrant or authorise judicial intervention. Propositions such as these have been stated often by the High Court: for example, see Attorney-General (NSW) v Quin[1] (per Brennan J), and Waterford v The Commonwealth[2] (per Brennan J).
[1] (1990) 170 CLR 1 at pp.35-36. In Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, at [43] & [44], Gleeson CJ, Gummow, Kirby & Hayne JJ referred to Brennan J’s exposition of “this field of discourse” as “fundamental.” The same passage of Brennan J in Quin was cited again by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [73] per McHugh, Gummow & Hayne JJ.
[2] (1987) 163 CLR 54 at p.77.
The comments of Gleeson CJ and McHugh J in Minister for Immigration and Multicultural Affairs v Eshetu, seem to apply to the facts and circumstances in this case:[3]
Someone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as “illogical” or “unreasonable”, or even “so unreasonable that no reasonable person could adopt it.” If these are merely emphatic ways of saying that the reasoning is wrong, then they have no particular legal consequence.
[3] (1999) 197 CLR 611 at p.626 [40].
Unfortunately, Dr Vatarescu proceeds by way of assertion rather than by way of evidence. His assertions remain, in large measure, somewhat diverse ways of expressing his disagreement with the operation of the Job Network Scheme and the actions of those responsible for administering it. That disagreement is of a kind to which the observations of Gleeson CJ and McHugh J in Eshetu would apply.
In Abebe v Commonwealth, Kirby J referred to situations where “… some applications for judicial review … were thinly disguised attempts to procure judicial redeterminations of the facts or the merits.”[4] Such an observation also seems to apply here.
[4] (1999) 197 CLR 510 at p.587 (internal citations omitted).
I move now from authorities that deal with judicial review to those that relate to the application brought by the Respondent for summary disposal.
D. Summary Disposal
In addition to the express terms of s.17A to which I have referred above, there are a number of significant Federal Court judgments relevant to the application of this section. The Federal Court judgments, noted below, relate to the interpretation and application of s.31A of the Federal Court of Australia Act 1976 (Cth). That section is identical in terms to s.17A of the Federal Magistrates Act. In my view, therefore, those decisions of the Federal Court are directly relevant to the application before this Court under s.17A.
The cases to which I have adverted are: White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 (Lindgren J), Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 (Rares J), and the Full Court decision in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 246 ALR 465 (Finkelstein, Rares & Gordon JJ).
I emphasise, and respectfully agree with, Gordon J’s analysis of s.31A of the Federal Court of Australia Act 1976 at [122] – [135] in Jefferson Ford and the six principles that her Honour articulates. Should it become necessary, those principles should be taken as being incorporated into these reasons. Those principles, in my view, are applicable to applications in this Court under s.17A of the FMC Act.
I am also conscious of Finkelstein J’s more recent helpful, and direct, discussion of Jefferson Ford in Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (2008) 252 ALR 41. See his “dialogue”, especially at [7] – [9], of the distinction between summary judgment and strike out applications.
In a non-statutory context, there are also the observations of Kirby J in Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 to consider. His Honour’s comments are in the context of the relevant High Court Rules but otherwise they are without reference to any particular statutory regime of summary disposal. Omitting internal citations, for current purposes Kirby J’s helpful principles in relation to summary dismissal applications are as follows (at [14]):
“It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests.”
“To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.”
“An opinion of the Court that a case appears weak and such that it is unlikely to succeed, is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a Court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.”
“…if there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts will sometimes assist the judicial mind to understand and apply the law that is invoked….”
“The guiding principle is…doing what is just.”
E. Conclusion
In my view, at their highest, the facts and circumstances of the case are significantly nebulous and disclose no circumstance or basis, in law, for judicial intervention. Dr Vatarescu may, morally or politically, have some cause for complaint. However, given the broad policy and practical day to day discretion that is open to those responsible for administering the Job Network Scheme, and in the absence of specific evidence of any particular decision and relevant evidence, I cannot see any legal basis upon which he can obtain redress.
Accordingly, having regard to (a) the facts of this case (b) the state of the pleadings, (c) the late stage of the litigation and (d) the various opportunities extended to Dr Vatarescu to particularise or clarify the grounds upon which he seeks relief, it seems to me that there is no reasonable prospect of his action or proceeding succeeding. Therefore, the application sought by the Respondent pursuant to s.17A of the Federal Magistrates Act must succeed.
The orders will be: the initiating application be dismissed; the applicant to pay the respondent’s costs (either agreed or taxed).
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: D. Gale
Date: 23 October 2009
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