Young v Secretary, Dept Family and Community Services

[2006] HCATrans 106

[2006] HCATrans 106

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M142 of 2004

B e t w e e n -

PAUL CHARLES YOUNG

Applicant

and

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 MARCH 2006, AT 9.47 AM

Copyright in the High Court of Australia

KIRBY J:  

Background to the application

On 17 February 1999 a delegate of the respondent decided to cancel the applicant’s rent assistance and asserted a debt payable to the Commonwealth of $10,040.61, being rent assistance paid to the applicant for the period between 28.1.93 and 17.2.99.  The basis of the decision was that the applicant was a homeowner disentitled to assistance.  The applicant claimed that he held the subject property on trust and was not the beneficial owner.  Under the Social Security Act 1991 (Cth) (“the Act”), a person is not entitled to rent assistance if an ‘ineligible homeowner’, defined in s 11(4) of the Act. A homeowner is defined in s 11(4) as not being a person who ‘has a right or interest in the person’s principal home’ and that ‘the person’s right or interest in the home gives the person reasonable security of tenure in the home’. In order to be eligible for rent assistance, the Act requires that an applicant must pay, or be liable to pay, rent.

The applicant challenged the cancellation decision in the Administrative Appeals Tribunal (“AAT”).  The issue before the AAT was whether the subject property was the applicant’s principal home; if so, whether he had a right or interest in it; whether the right or interest gave him reasonable security of tenure; and whether the applicant paid, or was liable to pay, rent during the relevant period.  The AAT found that the applicant had at all relevant times lived at the property as his principal home.  The property was registered in the name of Paul Charles Kerr and the applicant acknowledged that this was a reference to himself.  However, the applicant claimed that he had no right or interest in the property because it was subject to two different trusts.  One was said to be for ‘Stephanie’, who the applicant claimed was his daughter.  The AAT found that, on the evidence there never was a trust for Stephanie and there was never an intention to give the full beneficial ownership of the property to a trustee to hold for the benefit of Stephanie.  As for the other trust, said to be for the “KF and F Foundation”, the AAT found that there was never a trustee appointed to carry out the objects of the Foundation.  It found that the ‘Foundation’ never came into existence as an entity separate from the applicant and that, even if it did, there was no way such ‘Foundation’ could challenge the applicant’s security of tenure in the home.

The AAT therefore found that the applicant was a homeowner under the Act and had never been entitled to rent assistance; nor had he ever paid any rent. The Tribunal further found that the whole claim for rent assistance was based on false statements that the applicant was liable to pay rent and that he was not the owner of the property.

The applicant ‘appealed’ to the Federal Court of Australia.  The jurisdiction of the Federal Court was confined to appeals for error of law.  In the course of the hearing before Gray J, the applicant asked his Honour to disqualify himself on the ground of bias or perceived bias.  The basis for this application was that Gray J had told the applicant that he ‘should just pay the debt’; that costs of an adjournment had been awarded against the applicant; that his Honour refused to provide a copy of transcript of previous hearings; that the applicant had been oppressed by having heard nothing from the counsel assigned to him under O 80 of the Federal Court Rules and that his Honour had commented several times to the effect that all of the earlier processes had gone against the applicant and that he could not come to Court and have ‘another shot.’  Gray J refused the application for disqualification.

The applicant sought to adduce further evidence.  This application was refused on the basis that the applicant was attempting to persuade the court to make findings of fact more favourable to him than those made by the Tribunal and that this was illegitimate in an appeal limited to a question of law.  Gray J considered that the original decision to grant the applicant rent assistance resulted from his false statements and, whether officers of the respondent accepted those statements knowingly, negligently or incompetently did not matter.  Gray J also rejected a claim that the AAT had exhibited bias against him.  The remainder of the issues raised by the applicant were factual ones.

The applicant appealed to the Full Court of the Federal Court.  That Court was constituted by Marshall, Finkelstein and Jacobson JJ.  The principal ground of appeal before the Full Court was that the AAT’s decision was unreasonable in the Wednesbury sense.  The Full Court concluded that unreasonableness was not established on the facts.  Importantly, it was open to the AAT to find that it was not satisfied that the applicant had paid rent.  The allegations of bias had been correctly rejected.

The applicant’s draft notice of appeal to this Court asserts that the lower courts had made ‘errors of law’; that he had been denied procedural fairness; that there had been ‘abuses of process’ bias, ‘miscarriages of discretion’, ‘misconduct in public office’; that ‘there are issues as to matters being ultra vires in lower jurisdiction’; and that the lower courts had acted contrary to law and in an unreasonable manner. The applicant’s written case does not express any question of law per se; nor does it provide particulars of the grounds asserted in the draft notice of appeal.  The written case maintains that trusts existed over the property and that the AAT’s failure to so find amounted to an error of law.

Disposition of the application

The application does not raise any questions of law that would warrant a grant of special leave to appeal.  The decisions of the lower courts were clearly correct.  No error of law is apparent either in the decision of Gray J in the Federal Court or the Full Federal Court.  The application turned on findings of fact made by the AAT that the applicant was an ineligible ‘homeowner’ who did not pay rent and who had made misleading statements in his application for rent assistance.  Such findings were open to the AAT.  No error of law occurred in reaching this conclusion.

In these circumstances there are no prospects that the applicant would succeed in an appeal to this Court.  The application should therefore be refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I publish the disposition signed by Heydon J and myself.

AT 9.54 AM THE MATTER WAS CONCLUDED