Budd v Secretary, Department of Education, Employment and Workplace Relations

"voluntary work"means work approved by the Secretary undertaken in a voluntary capacity for charitable, welfare or community organisations. (First emphasis added.) 4 The application was dismissed by a delegate on 14 November 2006, a decision which was affirmed by an Authorised Review Officer on 10 January 2007 and affirmed again on 11 April 2007 by the Social Security Appeals Tribunal ("the SSAT"). Finally it was affirmed by the AAT on 21 February 2008. The reason why Ms Budd's application for a mobility allowance was refused was because it was found that she was not required to, and did not, travel to and from her home for the purpose of undertaking her voluntary work. 5 The SSAT recorded in its decision that at a hearing on 8 March 2007 Ms Budd said she had left her unit only four or five times in 2006 and not at all to that point in 2007. 6 The AAT decision recorded that Ms Budd told it that "(s)he seldom goes out of the house and will only do so to get stationary [sic] supplies and post letters. That is the extent of her travelling". The AAT also observed that Ms Budd herself, in a letter written in November 2006, confirmed that she did not leave home to do voluntary work but did it at home. 7 Ms Budd's statements in that letter seem quite definite on this point. She said, variously: "Due to my psychological disability I cannot leave home to do voluntary work… … I do this from home actively which counts as a Voluntary Works (but cannot be done outside only because my psychological disorder prevents me to leave home. … I cannot leave home or do voluntary work any other way due to my psychological disability prevents me to do so … … I cannot travel outside the home … … [I] cannot do face to face voluntary work … … I do this at my home and in my case & circumstances given my illness prevents me to … travel outside the home … … my disability prevents me to leave home … … my psychological disability prevents me to comply with travel outside my home & I do this in my home because my disability prevents me to leave home … I cannot do voluntary work outside my home … … I am psychologically incapable to do the requirement to travel outside my home … Given my disability prevents me to leave home the activity inside my home amounts to the same as I would do outside. … … I cannot do no Voluntary Work outside the home due to my psychological disability prevents me to so, I cannot do no face to face Voluntary Work outside my home other than this way inside my home … … my psychological disability prevents me to leave home to travel, when it is done from my home - which is the only way I can do it, due to illness … To deny me my Mobility Allowance just because my psychological disability prevents me to leave home which involves travel outside my home (when illness prevents this) that is to deny me my legal rights to justice (as I am entitled to it given my illness prevents me to comply …" 8 In a later letter, dated 12 January 2007, Ms Budd said, to similar effect: "I cannot leave my home due to my Agoraphobia and Social Phobia that prevents me to do the requirement to travel outside my home. … I cannot leave home to travel but at the same time you can see I have to do this travel part by phone, fax, and to have my son to deliver it for me and to post and pay him the travel costs for him to get my work delivered for me and while I do this from home as well by phone and fax, and have to buy stamps, postage, travel costs, resources, computer items to do that, so I have no money to keep paying this from my pension and entitled to the allowance due to the fact that illness would me to do the travel myself. … I cannot leave home due to Agoraphobia …" 9 Ms Budd's earlier application, seeking to appeal to this Court from the decision of the AAT, was defective. It was also out of time. Nevertheless the primary judge treated it as an application for an extension of time in which to appeal. His Honour said that there was an acceptable explanation for the delay and that the respondent would not suffer undue prejudice if the Court were to grant leave to Ms Budd to file and serve a notice of appeal out of time. However, his Honour concluded that there was no foundation for an allegation, which Ms Budd wished to advance, that she was denied natural justice and he found there was no other question of law which arose in connection with the decision of the AAT. What Ms Budd sought to challenge, his Honour found, was a finding of fact and a conclusion about the merits of her application. Such a challenge is beyond the jurisdiction of the Court to entertain on an appeal from the AAT. Accordingly the primary judge denied Ms Budd an extension of time in which to appeal and dismissed her application with costs. 10 Ms Budd has now sought to appeal against the judgment of the primary judge which was given on 17 October 2008. Again she is out of time. Her application for an extension of time was not filed until more than six weeks after the judgment was delivered, rather than within 7 days as required by O 52 r 10(2A)(b) of the Federal Court Rules. Under O 52 r 15 an extension of time in relation to an ordinary appeal, not requiring leave, may be granted "for special reasons". It has been held that no lesser test should be employed when considering an application under O 52 r 10(2A)(b) (see Deighton v Telstra Corporation Ltd [1997] FCA 1568 and Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 ("Sharman") at [20]). A special reason is one which takes the case out of the ordinary (see Jess v Scott (1986) 12 FCR 187 at 195 and Vu v Minister for Immigration and Citizenship [2008] FCAFC 59). 11 Ms Budd sent to the Registry a lengthy document containing, in a number of attachments, an extensive statement of the basis upon which she desired to challenge the judgment of the primary judge and the decision of the AAT. She also indicated the way in which her illness limits her capacity to comply with administrative requirements, including those related to completing the documents necessary to institute her present proceedings and providing them to the Court in a timely way. It is not necessary to determine the present application by reference to the time limits fixed by the Federal Court Rules. In the circumstances of this case it is better to move directly to a determination of Ms Budd's application for an extension of time on a broader basis by considering whether there would be any utility in permitting a challenge to the judgment of the primary judge or any further challenge to the decision of the AAT. 12 The judgment which Ms Budd now wishes to challenge was an interlocutory judgment. Leave to appeal would therefore also be required, if an extension of time was granted, before a right to appeal would become available. 13 In Sharman, Lindgren J distilled the requirements to be met in such circumstances in the following way (at [20]): 20 In order for the Court to allow further time for the filing and serving of an application for leave to appeal from an interlocutory judgment, the following conditions must be satisfied: 1. There must be a satisfactory explanation for the delay beyond the seven-day time limit fixed by O 52 r 10(2)(b) (see, for example, Deighton v Telstra Corporation Ltd (unreported, Full Court, 17 October 1997)); 2. The application for leave to appeal must have such prospects of success as not to render the extending of time an exercise in futility. Since the test for the granting of leave to appeal from an interlocutory judgment is that the decision must be attended with sufficient doubt to warrant its being reconsidered by an appellate court, and that substantial injustice would result if leave were to be refused, supposing the decision to have been wrong (Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400), in principle the question on an application for an extension of time is whether this test has sufficient prospects of being satisfied, to warrant granting the extension. In practice, the debate and treatment of the 'arguable error' question on an application for an extension of time, will be no different from what the debate and treatment of it would be on the application for leave to appeal itself. 3. Since an applicant for extension of time within which to appeal as of right must show 'special reasons' (O 52 r 15(2)), nothing less should be required of an applicant for an extension of time within which to apply for leave to appeal (Deighton v Telstra Corporation Ltd, above). (Emphasis added.) [Order 52 r 10(2)(b), referred to by Lindgren J, now appears in the Federal Court Rules as O 52 r 10(2A)(b)]. 14 The central difficulty which confronts Ms Budd's desire to challenge the decision of the AAT in this Court, as the primary judge found, is that the role of this Court to review decisions of the AAT is subject to strict limits. Section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) is as follows: (1) 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. (Emphasis added.) 15 Many decisions of this Court have emphasised the necessity to respect and comply with this requirement (see e.g. Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232; Comcare v Etheridge [2006] FCAFC 27 ("Etheridge"); Purvis v Dairy Adjustment Authority (No 2) (2006) 150 FCR 48; Brown v Repatriation Commission [2006] FCA 914 ("Brown") and Colby Corporation Pty Ltd v Commissioner of Taxation (2008) 165 FCR 133 ("Colby")). 16 In the written material Ms Budd provided to support her present application she argued vigorously that the AAT had committed errors of law, not only of fact. However, the suggested errors were those reflected by the conclusion of the AAT that Ms Budd did not satisfy the requirements of s 1035 of the Act. Notwithstanding her protestations to the contrary that conclusion turned entirely on questions of fact. 17 Although Ms Budd also asserted that the AAT had failed to pay proper regard to letters from Sister Francis, at St Clare's Convent, and a report from Dr Hugo Rodriguez, it is clear from extracts from the AAT decision quoted by the primary judge that those matters were explicitly stated by the AAT, along with other material, to have been considered by it. 18 At the hearing of Ms Budd's application she appeared by telephone, owing to her personal circumstances to which I have already referred. The respondent did not appear. The matter had been listed for some months and I decided to hear Ms Budd's oral submissions in the respondent's absence. 19 Ms Budd insisted, as she had apparently before the primary judge, that in fact she left her home and travelled to St Clare's Convent by taxi to deliver work she had completed. She said she had done so for years. Her assertions contradicted the representations she made in her letters of November 2006 and 12 January 2007. Her factual assertions did not, of themselves, raise any question of law but an associated submission to the effect that the primary judge (and, I infer, the AAT) had no evidence to support a finding that she did not travel, or ignored evidence that she did in fact travel, is capable of raising a question of law about the decision-making process of the AAT, and the correctness of the decision of the primary judge, if the submission is sound. It therefore requires some further examination. 20 I have already pointed out that there was direct evidence before both the SSAT and the AAT from Ms Budd herself that she did not leave her home, except on rare occasions. I have also pointed out that allegations that the AAT failed to pay any regard to material upon which Ms Budd relied are refuted by the terms of the AAT decision itself as the primary judge, with respect, correctly found. Nevertheless, I have also looked at the material referred to in her oral submissions for myself. 21 The matters identified by Ms Budd in her oral submissions were: a letter from Sr Francis dated 2 September 2006; a report from Dr Rodriguez dated 19 June 2007; and reports from Ms Pamela Young. Ms Budd suggested that examination of this material would support her assertion that she often travelled by taxi for the purpose of the voluntary work she carried out. 22 Sr Francis' letter of 2 September 2006 was to Ms Budd and was in the following terms: "Ms Budd, Dear Pamela thank you for your gift of poems. You certainly have a gift for them, (aided by your previous degrees). Since you have agrophobia [sic] and hence, cannot go out, it could be possible for you to obtain a mobility allowance, since you donate eight hours a week on composing poems. These you dispense to various places such as communities of Nuns, Priests, Brothers, Schools and others. Richard and Diana, who bring you Communion, are happy to receive your poetry. This allowance would be a great support for your psychological fees, and a help to your son who is so caring of you I do hope that you will obtain it. In the meantime, continue your good work, cheering people and coping with your disability, With love, Sr M Francis OSC" (Emphasis added.) 23 This letter confirmed, rather than refuted Ms Budd's own statements in November 2006. 24 Dr Rodriguez provided a report dated 13 March 2007 in which he said: "I understand and Ms Budd relies on her Mobility Allowance to be able to work. More specifically, to attend to expenses related to phone bills, faxes, courier fees, taxis, and hiring a wheel chair. These are Ms Budd's means for traveling [sic], as her medical condition prevents her from using normal transport. I believe that her Mobility Allowance assists mostly to comply with activities including going to Newsagencies to purchase stationary [sic] items, delivering her work, and deal with all other aspects of her work and venues. Ms Budd said that she can only stay away from home for short periods, not exceeding three hours, which she can only do if taken on a wheelchair." 25 These statements should be seen in light of Ms Budd's indications at about the same time that her son did any necessary personal travelling to deliver her contributions to St Clare's Convent. The report of 13 March 2007 was provided before the decision of the SSAT on 11 April 2007. 26 In his report of 19 June 2007, which was expressly taken into account by the AAT, Dr Rodriguez said: "Following my previous report dated 13/3/07 Ms Budd contacted my office for the purpose of conducting a further assessment and prepare this updated report. Ms Budd suffers from chronic anxiety. Her condition manifests primarily with Agoraphobia (A morbid fear of having anxiety symptoms in public place) and Social Phobia (Extreme fear to face people or having to deal with people face to face). Her condition includes Situational Phobia (A phobic response to specific triggering stimuli such as clutter). Ms Budd's condition had its onset in 1999 and since then it has become increasingly more incapacitating. At present, she is unable to have personal interviews other than with very familiar people or via the phone. Her symptoms are very debilitating and severely restrict her from attending to normal social and occupational matters. She is currently conducting volunteer work with St Claire Church, which comprises mostly of preparing modules for catechism books. Ms Budd manages to comply with this occupation working from home. Ms Budd informed me that the Social Security Appeal Tribunal has recently declined her request for Mobility Allowance. She believes that this decision was reached due to the main factors for this request not being properly clarified, and she has asked me to state these issues more in depth. Due to her Anxiety condition Ms Budd is unable to make use of conventional forms of travelling, such as public transport. She is able to travel by car with only some familiar drivers. She relies mostly on her son, her full carer, to be conveyed to doctors' appointments and other commitments; she uses a wheelchair to commute - Ms Budd reportedly qualifies for parking disability permit. And she relies on contacts made by telephone and faxes and by sending or collecting goods by courier or taxis. These are the only safe means for her to attend to her personal, social or occupational obligations. Based on my assessment of Ms Budd I am of the opinion that due to the Anxiety condition preventing her from resorting to conventional forms of travelling, she is forced to make use of her phone, fax, wheelchair, couriers and taxis to commute. These are, in my view, Ms Budd's only likely forms of traveling [sic]. I understand that on these bases she complies with provision 1035 of the traveling [sic] section of the Social Security Act. Thus, and strictly from the psychological point of view, I support Ms Budd's application for Mobility Allowance. I see this assistance as vital for the continuation of her work with the Church as well as for treatment of her symptoms." (Emphasis added.) 27 I have set out the whole of the substance of Dr Rodriguez's report to illustrate a number of matters. First, Dr Rodriguez's information came from Ms Budd. Apparently she contacted him again after the decision of the SSAT. 28 Secondly, taken in context the reference to the use of taxis in the third passage I have emphasised does not seem to be a reference to Ms Budd travelling in them but, rather, using them as a method to transmit her work as an alternative, for example, to couriers. In any event, the assessment of the weight of this report, in light of the earlier information, was a matter for the AAT. It was clearly not ignored. No error of law arises from the way it was dealt with. 29 Ms Young is a registered psychologist. She provided Ms Budd with a number of documents headed "To Whom it May Concern" in support of the claim for a mobility allowance. Many appear to be modifications of earlier versions of the same document. All the changes which appear relevant were made to one of the concluding paragraphs of the report. The representations they contained were obviously based on statements from Ms Budd to Ms Young. As they are dated in early 2008 they either shortly predated, or postdated, the decision of the AAT on 21 February 2008. They all postdated the AAT hearing which was conducted on 19 December 2007. The AAT did not commit any error of law by failing to deal with material which was not before it. In any event, I am satisfied they give no support to Ms Budd's position. 30 In what appears to be the first such report, dated 11 January 2008, Ms Young said: "Another important issue is that Mrs. Budd is waiting for a mobility allowance to be granted to help with the expenses incurred in her charitable work. She tells me she has been undertaking voluntary work for a Sister Frances of an Order of Catholic nuns for two years by fax, telephone and courier, and because of her agoraphobia and social phobia it is not possible to leave her premises or conduct face to face charitable work. Therefore she relies on her only means of communication - that is electronic media combined with courier services." (Emphasis added.) 31 This report predated the decision of the AAT. Had it been before the AAT it would have confirmed the other material to which the AAT referred when it concluded that Ms Budd was not entitled to a mobility allowance. Each of the other reports postdated the decision of the AAT. 32 In a later version, dated 25 March 2008, of what appears to be essentially the same report as the first, Ms Young said: "Therefore she relies on her only means of communication - that is, electronic media combined with courier services. She is also seeking taxi vouchers to help with this work." (Emphasis added.) 33 Confusingly, a version of the report also dated 25 March 2008 omitted the sentence set out above and said instead: "Another issue of importance to Ms. Budd is that she is waiting for a mobility allowance to be granted to help with the expenses incurred in her charitable work." 34 Neither version of the report dated 25 March 2008 lent support to Ms Budd's case. Later versions of the report, evidently responsive to Ms Budd's representations to Ms Young after the decision of the AAT had been delivered, attempted to convey a different picture. 35 There are two variations dated 21 April 2008. One says: "Ms Budd tells me, however, that for the past 18 months to two years she has been travelling three to four hours by taxi on frequent occasions to assist in her charitable work, although not face to face with her clients. She is requesting taxi vouchers to assist with this endeavour." (Emphasis added.) The other says: "Another issue of importance to Ms. Budd is that she is waiting for a mobility allowance to be granted to help with the expenses incurred in her charitable work. To my pleasant surprise Ms Budd tells me that for the past 18 months to two years she has been travelling by taxi three to four hours frequently to assist in this work, albeit not on a face to face basis. This implies that to a large extent Ms. Budd's agoraphobia has gone into spontaneous remission, leaving only the social phobia and anxiety symptoms to be dealt with." (Emphasis added.) 36 An undated version said: "Another important issue is that Mrs. Budd is waiting for a mobility allowance to be granted to help with the expenses incurred in her charitable work. She tells me she has been undertaking voluntary work for a Sister Frances of an Order of Catholic nuns for 29 months by fax, telephone and courier, and also (although not face-to-face) by using taxis or with a trusted friend." (Emphasis added.) 37 Finally, yet a further version of essentially the same report, dated 5 May 2008 said: "Ms. Budd tells me, however, that she has been travelling three to four hours by taxi daily to assist in her charitable work, although not face to face. She is requesting taxi vouchers to assist with this endeavour." (Emphasis added.) 38 The contrast between these progressively different representations recorded by Ms Young and the material originally put before the SSAT and the AAT is stark. The only versions upon which Ms Budd could hope to place any reliance post-dated the decision of the AAT and were contradicted by her own statements to the AAT. They were, in any event, of so little apparent reliability that they could carry no weight. They provide no foundation upon which to argue, in the present proceedings, that the AAT made an error of law or that the primary judge was incorrect to conclude that no question of law arose from its decision. 39 None of the material, therefore, which was relied upon by Ms Budd in her oral submissions to me provides a foundation for a conclusion, or even a respectable argument, that the AAT committed an error of law. 40 In the circumstances, I am satisfied that Ms Budd has no prospect of succeeding in any appeal against the judgment and orders of the primary judge and that it would be futile and a waste of public resources to grant her an extension of time in which to seek leave to do so. As the primary judge found, there is no power in this Court to interfere with, or set aside, the decision of the AAT. 41 The application for an extension of time in which to appeal (or seek leave to appeal) will be dismissed. Although the respondent did not appear at the hearing of the appeal and filed no document other than a formal notice of appearance, that does not exclude the possibility that, nevertheless some costs may have been incurred by it in connection with the present proceedings. There is no reason in principle why those costs should not be recovered if the respondent wishes to seek them. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.