Budd v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

REASONS FOR JUDGMENT 1 By notice of appeal filed on 6 July 2009, Ms Budd purported to appeal, under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AA Tribunal Act), from a decision of the Administrative Appeals Tribunal (the AA Tribunal) made on 25 June 2009. By that decision, the Tribunal affirmed a decision of the Social Security Appeals Tribunal (the SSA Tribunal) affirming a decision by Centrelink to reject Ms Budd's claim for a crisis payment. The respondent, the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs (the Secretary), has applied for summary dismissal of the proceeding on the basis that it is incompetent or that it has no reasonable prospect of success. 2 Ms Budd has no legal representation and appears only by telephone. She suffers from psychiatric conditions, including agoraphobia and social anxiety disorder. She receives a disability support pension and lives in a home provided by the New South Wales Department of Housing (NSW Housing). 3 On 16 June 2008, Ms Budd had to leave her house and stay in temporary hotel accommodation that was provided and paid for by NSW Housing while renovations were carried out to the bathroom of her home. She returned to her home on 24 June 2008. On 11 July 2008, Ms Budd lodged with Centrelink a claim for a crisis payment. Centrelink rejected the claim on 16 July 2008. It appears that Centrelink treated the claim as being for the period when Ms Budd was required to move to temporary accommodation while the renovations were carried out to her bathroom. 4 The rejection of the claim was affirmed by a Centrelink authorised review officer on 25 July 2008. The authorised review officer found that: · Ms Budd moved to temporary accommodation from 16 to 24 June 2006, · NSW Housing paid for the temporary accommodation, · a claim for crisis payment form was sent to Ms Budd on 13 June 2008, · Ms Budd submitted a claim for a crisis payment on 11 July 2008. On 4 September 2008, the SSA Tribunal affirmed the decision of the authorised review officer. Ms Budd then sought review of the decision of the SSA Tribunal by the AA Tribunal. 5 The AA Tribunal formulated the issue before it as being whether Ms Budd qualified for a crisis payment and that, to do so, her circumstances must satisfy all the criteria set out in s 1061JH of the Social Security Act 1991 (Cth) (the SS Act). Section 1061JH(1)(a) of the SS Act relevantly provides that a person is qualified for a crisis payment if the person has left, or cannot return to, his or her home because of an extreme circumstance. There are six other prerequisites in s 1061JH that are not presently relevant. Section 1061JH(1) states, by way of note, that an example of extreme circumstances that would qualify a person for crisis payment are the person's house being burned down or the person being subjected to domestic or family violence. There is no other definition of what would constitute an extreme circumstance. 6 The AA Tribunal concluded that Ms Budd was not entitled to a crisis payment because she did not leave her home because of an extreme circumstance. The AA Tribunal's reasons stated that Ms Budd filed voluminous documentary material with the Tribunal and also gave oral evidence by telephone. The reasons also stated that all of the material in the documents before it, including medical reports, had been taken into account. The AA Tribunal found that Ms Budd had had a long history of complaints about the housing provided to her by NSW Housing, but that the only power that the AA Tribunal had was to decide whether or not Ms Budd was entitled to the crisis payment that she claimed. The AA Tribunal considered that Ms Budd's case was misconceived. She claimed that she satisfied the criteria in s 1061JH(1) of the SS Act because, as she said, she is in an accommodation crisis and that she left her home while renovations were being carried out and has the intention of establishing a new home. 7 The AA Tribunal accepted that it was necessary for Ms Budd to leave her home while the bathroom renovations were carried out. However, the AA Tribunal did not accept that that was an extreme circumstance because: · NSW Housing arranged for and paid for the alternative temporary accommodation at a hotel, · Ms Budd was given Cabcharge vouchers to transport her from her home to the hotel and from the hotel back to her home, · Ms Budd was not rendered homeless, · during the renovations, Ms Budd continued to receive a disability support pension. 8 The AA Tribunal characterised Ms Budd's complaint as being a long standing one about the accommodation provided by NSW Housing. She asserted that she had requested new housing unsuccessfully for several years and that her current arrangements cause her extreme distress. She said that that distress was intensified when certain people occupied premises next door to her. Ms Budd claimed that she has endured that crisis for many years. However, the AA Tribunal considered that those circumstances did not constitute an extreme circumstance within the meaning of s 1061JH of the SS Act. Accordingly, the AA Tribunal concluded that applicant did not satisfy the criteria of that provision and did not qualify for a crisis payment. 9 Section 44(1) of the AA Tribunal Act provides that a party to a proceeding before the AA Tribunal may appeal to the Federal Court, on a question of law, from any decision of the AA Tribunal in such a proceeding. Under O 53 r 3(2) of the Federal Court Rules, a notice of appeal must set out, inter alia, the question or questions of law to be raised on the appeal. The existence of a question of law is not merely a qualifying condition to ground the appeal but is also the subject matter of the appeal itself (see TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178). In the absence of a question of law within the meaning of s 44(1) of the AA Tribunal Act, the jurisdiction of the Federal Court is not enlivened. 10 In addition, s 31A of the Federal Court of Australia Act 1976 (Cth) provides that the Court may order that a proceeding be dismissed summarily if satisfied that there is no reasonable prospect of success in the proceeding. The Secretary says that, in the light of the notice of appeal filed on 6 July 2009, no question of law is raised and that, to the extent that a question of law is hinted at, there is no reasonable prospect of success. 11 The notice of appeal of 6 July 2009 is somewhat incomprehensible. The following complaints may possibly be gleaned from the document: · The AA Tribunal misconceived Ms Budd's claim. · The AA Tribunal failed to take into account Ms Budd's doctors' evidence. · The AA Tribunal failed to take into account submissions from Ms Budd's lawyers. · Points raised by Ms Budd were not taken into account by the AA Tribunal which ignored the issues raised by Ms Budd. · The AA Tribunal disregarded the evidence adduced by Ms Budd. · The AA Tribunal failed to consider Ms Budd's mental illness. 12 In addition to the notice of appeal, Ms Budd provided a fifteen page document, which is as equally incomprehensible as her notice of appeal. The submission makes assertions of denial of rights, denial of natural justice, errors of law, denial of rights to justice, severe injustice and denial of legal rights. However, there is no logical argument or reasoning contained in the submission in support of such assertions. 13 In so far as any sense can be made of the notice of appeal and the written submission, it appears to me that Ms Budd does no more than refer to the evidence upon which she relied before the AA Tribunal, particularly with regard to her health. The AA Tribunal in fact accepted that Ms Budd suffers from psychiatric conditions. The thrust of Ms Budd's complaint appears to be no more than that the AA Tribunal reached a conclusion on the material before it that was unfavourable to her. In the absence of any amended notice of appeal, disclosing an intelligible question of law, I am unable to discern any basis upon which the purported appeal could succeed. 14 At the hearing of the Secretary's application for summary dismissal, Ms Budd appeared by telephone. She engaged in repetitious assertions that she had raised questions of law in her notice of appeal and in her written submissions. Having regard to the disabilities from which Ms Budd suffers, I gave leave for her to file an amended notice of appeal after obtaining some legal assistance. 15 The Court subsequently received a further written submission from Ms Budd of some five pages. In her further submission, Ms Budd indicated that she is endeavouring to obtain pro bono legal assistance but that, if she is unable to obtain such assistance, she wants the matter to be dealt with on the papers. Her further submission asserts that she was treated unfairly and wrongly by Centrelink and by the AA Tribunal in misunderstanding the issues. The submission invites the Court to consider notes that she provided to the AA Tribunal. The submissions reiterated that the AA Tribunal had misconceived her claim. The second submission goes on to assert that the AA Tribunal made a wrong finding and failed to consider all of the medical reports and failed to consider all of the lawyers' letters. 16 On 19 August 2009, Ms Budd filed an amended notice of appeal consisting of some thirteen pages that was then followed by further communications of 19 August 2009 consisting of 24 pages and 20 August 2009 consisting of 32 pages. The document of 19 August 2009 appears to be a response to an affidavit filed on behalf of the Secretary outlining the procedural history of the dispute which was before the AA Tribunal. The document of 20 August 2009 is a response to a brief further submission on behalf of the Secretary contending that the amended notice of appeal does not identify any proper question of law for the purposes of s 44 of the AA Tribunal Act and does not raise any issue that would provide Ms Budd with reasonable prospects of succeeding in her appeal. 17 The substance of Ms Budd's complaint appears to be confined to her assertion that the AA Tribunal misconceived her claim and treated her complaint as a long standing housing complaint, a rental crisis rather than an application for review of the decision of the SSA Tribunal, which affirmed the decision by Centrelink. 18 The amended notice of appeal is clearly embarrassing. It is highly repetitious and quite incomprehensive in many respects. It repeats several times the contention that the AA Tribunal misconceived Ms Budd's complaint and misunderstood the medical report upon which she based her complaint. 19 The documents of 19 August 2009 and 20 August 2009 are again repetitious of the complaint that the AA Tribunal failed to have regard to all of the evidence. The documents take issue with the matters considered by the AA Tribunal in concluding that Ms Budd failed in her contention that she had left or could not return to her home because of an extreme circumstance as is required by s 1061JH(1)(a) of the SS Act. The extensive further material that has been provided by Ms Budd serves only to confirm that she is seeking to invite the Court to canvass the factual conclusions reached by the AA Tribunal. 20 It is clear that Ms Budd does not have a full understanding of the limitations on an appeal to the Court from the AA Tribunal that are imposed by the terms of s 44. There is nothing in the amended notice of appeal or the extensive written material from Ms Budd that particularises any error of law on the part of the AA Tribunal that could constitute the subject of an appeal under s 44 of the AA Tribunal Act. I have seen nothing in the material provided to the Court by Ms Budd to indicate that the AA Tribunal misconceived the question before it, namely, whether Ms Budd has left or cannot return to her home because of an extreme circumstance. I am unable to discern any question of law that Ms Budd seeks to have ventilated in the Federal Court. On the material presently before the Court, there is no prospect of the appeal succeeding. 21 I therefore propose to accede to the Secretary's application for summary dismissal of the proceeding. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.