Dey v Victorian Railways Commissioners

That request was considered by a delegate of the Secretary to the Department of Social Security ("the delegate") under the Act. The delegate, by two decisions both dated 15 February 1996, rejected that application. In respect of the request based upon the day of the claim for sickness benefits first made on 11 January 1988, the delegate found that at that date the applicant's medical condition was not such as to qualify him for the disability support pension or, more properly, its predecessor the invalid pension under the 1947 Act: see s27 of the 1947 Act, because the medical evidence was that the condition then was not permanent but was only temporarily incapacitating. Consequently, s100(2)(b) of the Act was not satisfied. In respect of the request based upon the day of the claim for special benefit first made on 28 May 1991, the delegate found that as at that date the applicant fell within s100(2)(a), (b) and (c) but concluded under s100(2)(d) that she was not satisfied that it was reasonable for s100(2) to apply to the applicant. I shall refer below to her reasons for those conclusions to the extent necessary. The applicant was informed of those decisions by letter of 19 February 1996, which he acknowledged having received shortly after that date. As the application is made some five months after receipt of that notification, and its timing is relevant to the motion now before the Court, the terms of that notification are relevant. The notification itself contained the following:

"If you think my decision is not correct, you can talk to me about it. You can phone me on (08)3485633 or come in to see me. I will check that all the facts have been looked at and explain why the decision was made. I can also tell you about your rights to see your file. If you still do not agree, you can talk to an Authorised Review Officer (ARO) who is a senior, independent and expert officer who will: . take a fresh look at your case; . change the decision if it was not correct; and . tell you how you can appeal to the Social Security Appeals Tribunal (SSAT) if you still do not agree. The SSAT cannot review a decision unless it has been reviewed by an ARO first. You can also complain by writing to or calling the Commonwealth Ombudsman if you feel that the Department has not handled your case properly. "1800" numbers are listed in your local phone book and are available in most states. Remember, if you do not ask for the decision to be reviewed within 3 months of being told about it, you can only get back payment from the date you ask. If you would like to talk about this letter, please phone me on (08)3485633." The application as ultimately formulated seeks review of those decisions of the delegate of the Secretary on the grounds provided by s5(1)(e) and s5(1)(f) of the ADJR Act. It should be noted that initially the application was brought under s6 of the ADJR Act. That was raised by the respondent, and acknowledged by the applicant, as an inappropriate reference. The respondent did not object, entirely appropriately in my view, to an amendment to enable the application to be formulated under s5 of the ADJR Act. The substantive grounds of the present motion seeking the dismissal of the application are as follows:

1. That the application is no more than an attempt to reventilate facts, and does not properly raise any matter under s5(1)(e) or s5(1)(f). I should note firstly that, as the applicant appeared in person, the Court was anxious to ensure he had the opportunity of identifying all grounds of review reasonably available to him, and secondly that in relation to s5(1)(e), he identified the relevant particulars under s5(2). He did so, after consideration, by expressly relying only on s5(2)(g) of that Act.
2. Part 6 and Part 7 of the Act provide adequately for the applicant to seek a review of the decisions both internally within the Department and to the Administrative Appeals Tribunal, so that the Court should now refuse the application in the exercise of its discretion under s10(2)(b) of the ADJR Act, and
3. The application was not made within 28 days of the day on which the document setting out the terms of the decision was furnished to the applicant as required by ss11(1)(c) and (3)(a) of the ADJR Act. It is necessary to address each of those matters separately.

Order 20 rule 2 of the Federal Court Rules empowers the Court to stay or dismiss a proceeding either generally or in relation to any claim for relief in the proceeding where it appears to the Court, so far as relevant to the motion, that no reasonable cause of action is disclosed. The authorities are clear that such an order should only be made in the clearest of cases: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (N.S.W.) (1964) 112 CLR 125 at 129; Webster v Lampard (1993) 177 CLR 598 at 602-3. There are many judicial warnings against too ready an exercise of the power which exists under O20, and it is unnecessary to refer to them. I note in particular the remarks of Sheppard J in Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 124 ALR 685 at 695 that one should err on the side of caution so as not to deprive a party of a case which it ought to be able to bring. I turn to consider the grounds upon which the motion is pursued. The function of the Court under the ADJR Act is not to make a decision itself on the merits of the factual position, but to determine whether the case comes within one of the specific provisions of the relevant sections of the Act: Borkovic v Minister for Immigration and Ethnic Affairs (1981) 39 ALR 186, per Fox J at 188-189; Hamblin v Duffy (1981) 34 ALR 333, per Lockhart J at 335-336. In relation to the decision sought to be reviewed, the applicant asserts firstly that the making of the decision was an improper exercise of the power by the delegate because it was so unreasonable that no reasonable person could have exercised the power in that way (ss5(1)(e) and (2)(g) of the ADJR Act) and secondly that the decision involved an error of law (s5(1)(f) of the ADJR Act). It is necessary to identify the basis of those assertions so as to measure them against the circumstances in which the Court will exercise its powers under O20 r2 to dismiss a proceeding. The applicant's complaint is premised upon the proposition that the disability support pension payments are "payable" under the Act, and therefore (he submits) it is a miscarriage of the discretion under s100(2) of the Act not to pay them. In addition, he submits that the purpose for the discretion is so that the Department can "meet its duty to provide pension to Australian citizens suffering disability". The applicant tendered by consent extensive material in opposition to the motion. That material included some correspondence between the Department and himself, medical reports, the decision of the Administrative Appeals Tribunal given on 2 August 1996 in relation to the Department's decision to cancel the special benefit he received to 3 March 1992, and an extract from the Annual Report 1994-1995 of the Commonwealth Ombudsman. The explanation for his submission lies in the reasons for decision of the Administrative Appeals Tribunal. The decision that Tribunal had under review was the decision to cancel the special benefit from 3 March 1992. Under s729(2) of the Act, the Secretary may determine that a special benefit should be granted to a person for a period if: "(a)no social security pension is payable to the person during the period; and (b)no other social security benefit is payable to the person for the period; and ...". The applicant contended before the Tribunal that no such pension or benefit was payable to him because there had been no final determination of his entitlement to such a pension or benefit, and there could not be in the absence of any formal application by him for such a pension or benefit. The Tribunal rejected that contention, and accepted the submission of the Department that the disability support pension was "payable" to him from at least 3 March 1996 in the sense that that pension would have been granted to him had he lodged a claim for it. In reaching that conclusion, the Tribunal was persuaded by a purposive construction which required the special benefit provisions to be given the limited role in the overall structure of the Act which they were intended to have, by the test for payability provided by s41 of the Act, and by the need to give proper work to the exclusionary features prescribed by s729 of the Act. The Tribunal observed that if s729(2)(a) and (b) of the Act had the meaning the applicant contended for, then they would only play a role when the relevant pension or benefit was actually being paid and then of course the need for special benefit would simply not exist. The Tribunal also expressed the view that a particular applicant should not be able to qualify for special benefit by choosing not to qualify for a pension or benefit for which that person was qualified. It does not, in my view, do any injustice to the applicant's submission to put it as simply as this: the Department has (successfully) asserted to the Administrative Appeals Tribunal that he was not qualified for a special benefit under s729 of the Act because the disability support pension was "payable" to him from 3 March 1992, but has now decided under s100(2) of the Act that the disability support pension is not "payable" to him from that date. One or other of those views must be wrong. It need only appear to the Court that the argument is not entirely without merit for the motion, at least in so far as it is based on the absence of any substantive merit whatsoever, to fail. So far as the applicant's claim seems to have the provisional commencement date identified as the day of his claim for sickness benefits, that argument has no relevance. Nor, so far as I could discern, did the applicant suggest any error of law in the delegate's approach to s100(2) in relation to that aspect of the claim. That there is some evidence available to the delegate, as recorded in the reasons for decision, upon which she could find that at that time he was not permanently incapacitated for work, and so did not then qualify for an invalid pension (ss27 and 28 of the 1947 Act), was not challenged by the applicant. The fact that other medical evidence may suggest to the contrary is not to the point. In fact, neither of the two medical reports tendered by the applicant assert permanent incapacity earlier than 1992. It is not suggested that the delegate misinterpreted s100(2) in any relevant respect in relation to that earlier claim. Consequently, I conclude on the material before me that in respect of so much of the application as seeks to have the decision refusing to find the provisional commencement day for the disability support pension as the day of the initial claim for sickness benefits, it has no prospects of success, and so to that extent at least the motion should be successful. In relation to the claim based upon the initial claim for special benefit, whilst the point made by the applicant might seem attractive at first, it does not really come to grips with the terms of s100(2). The delegate's finding was that the applicant was qualified at 3 March 1992 for a disability support pension, not that one was payable to him as at that date. The question of payability is dependent upon the qualification for the benefit, but also requires that there is nothing in the Act that makes the payment not payable: s41 of the Act. The qualification for the disability support pension is in s94ff of the Act, Subdivision A of Division 1 of Part 2.3 of the Act and the payability criteria or restrictions are in s98ff of the Act, Subdivision B of that Division, including s100. It may be that the applicant might have argued or did argue before the Administrative Appeals Tribunal that "payability" for the purposes of s729 of the Act arises only where the pension or benefit would be backdated to the initial claim under s100(2) rather than simply where, had it been applied for then, it would have been granted. There is in a different context some authority that "payable" may carry a slightly different meaning to that determined by the Tribunal in s729 of the Act: Glass v Defence Force Retirement and Death Benefits Authority (1992) 38 FCR 534. In that case the applicant had terminated his employment in the Royal New Zealand Navy and had accepted a commission in the Royal Australian Navy. He had not exercised his right under the New Zealand superannuation scheme to elect to receive a lump sum in lieu of part of his retiring allowance. Under the Defence Force Retirement and Death Benefits Act 1973 (Cth) a contributing member could extend the period of his service if he had previous employment "upon the termination of which a transfer value became payable". It was held that, as the applicant had not elected to receive a lump sum, there was no amount which could be accepted as a transfer value. The Full Court (Spender, Ryan and Cooper JJ) held that "payable" was an ordinary English word signifying that something was presently capable of being paid, so that if an amount was not capable of being paid unless and until a specified election should have been made, or some other event should have happened, it was not "payable" within the ordinary meaning of that term. Their Honours approved the remarks of Gummow J in Edelsten v Health Insurance Commission (1988) 90 ALR 595. In that case, the issue was whether the applicant, who was not at the material times a registered medical practitioner within the meaning of the Medical Practitioners Act 1938 (NSW), was nevertheless entitled to payment of assigned benefits for professional services provided to patients under s20A of the Health Insurance Act 1973 (Cth). It was held that he was not entitled to sue for his fees under the NSW Act, and consequently there was no Medicare benefit payable in respect of the services provided. They were not "medical expenses" under s3 of the Health Insurance Act and so no foundation for the operation of the assignment existed. No Medicare benefit was payable, partly by reason of the construction of "medical expenses" and also as a matter of ordinary language. Of course, unlike Glass, in that case, no action or election on the part of the applicant could itself activate the payability of those amounts. I note those cases solely to reflect the endeavour to be satisfied as to whether, in this application, the applicant has a prospect of success on the basis put forward. Ultimately, his submission is one of construction of the particular section in the framework of the legislation. Section 100(2) does not use the term "payable" at all, so the possibility of a range of meanings for that word does not of itself provide the prospect of success in this application. Furthermore, the time at which s729 is directed is a different time to that which was addressed by the delegate: it speaks to the time of the application for special benefit, and directs consideration to what other pension or benefits were then available (or would have been available, if applied for). Section 729(2) has a purpose in the scheme of the Act, which cannot be ignored. The question for the delegate was different. It was whether, on the basis that she had found that the applicant was at that time qualified for the disability support pension, she was satisfied that it was reasonable for s100(2) to apply to the applicant. The concept of payability is not the only factor which is relevant to reasonableness under s100(2). It is not suggested that the delegate did not consider payability as relevant to her decision or reasonableness; indeed, it has been accepted that not only was the applicant qualified but met the payability criteria under s41 of the Act. It was other factors explained in the decision which led to her conclusion. The delegate had regard to the Guide to the Social Security Act, Chapter 1.1405-1.1408 which discusses "reasonableness". Her reasons for her decision included the applicant had been invited to but had declined to apply for the invalid pension from 26 July 1990 and later for the disability support pension on a number of occasions, both by officers of the Department and by the Administrative Appeals Tribunal, but had not done so. In reaching her factual conclusions on that matter, she also rejected the applicant's explanation that he had been told by the Tribunal in 1994 that he would receive the "arrears" when he lodged his claim for the disability support pension, and she considered the relevant transcript. She had regard to the length of the delay. It was not submitted that all or any of those were totally irrelevant considerations. In the light of s5(1)(e) and s5(1)(f) of the ADJR Act, in my view those comments lead to the conclusion that the applicant has not been able to identify any real argument or matter of fact to lead to the prospect of him establishing any identifiable error of law or improper exercise of power in the making of the decisions. Consequently, in my view, the applicant has not pointed to any matter upon which there is any real prospect of success on this application. That is not to comment upon whether the decision is a correct one. That is a different question. It can be explored through other avenues. I have been anxious not to express concluded views on matters relating to the correctness of the decisions of the delegate because that is for others to decide. Nor have I sought to decide matters extraneous to the application. What I have set out to do is simply to explore whether, given the limited grounds upon which this Court may interfere in a decision under the ADJR Act, there are arguments possibly available to, or factual matters possibly explored by, the applicant upon which I could conclude, in the light of the test prescribed by O20, that the applicant has any real prospect of success generally. It is strictly speaking unnecessary to refer to the other two grounds upon which the motion was pursued. However, I think I should express my views on them. The second substantive ground of objection is that the Court should not entertain the application because Parts 6 and 7 of the Act provide an adequate means of review of the decision complained of. Section 10(2)(b)(ii) of the ADJR Act gives the Court a discretion to refuse to grant an application for the reason that adequate provision is made by any law other than that Act under which the applicant was entitled to seek review by the Court by another court or by another tribunal, authority or person of the decision complained of. Parts 6 and 7 of the Act provide an extensive means of review in Chapter 6 - Review of Decisions and Chapter 7 - Administration (ss1238-1342). In particular, there is available to the applicant internal review by the Secretary under s1239 which can be invoked under s1240, then review by the Social Security Appeals Tribunal under s1247 which can be invoked under s1257, and then review by the Administrative Appeals Tribunal under s1283. Both the Social Security Appeals Tribunal, which is constituted under Part 7.3 of the Act and which has detailed procedures prescribed for it under Part 6.3 of the Act, and the Administrative Appeals Tribunal which of course is constituted under the Administrative Appeals Tribunal Act 1975 are independent of the Department. There is then a right of appeal from the Administrative Appeals Tribunal to this Court, but limited to questions of law. Counsel for the respondent accepted that the exercise of those review rights remains available to the applicant. None of those procedures have been availed of by the applicant. The applicant's response is threefold: firstly, as his application is said to involve the legal interpretation of "payable" where there are inconsistent views at least within the Department as to its meaning, it is appropriate that the Court should resolve that; secondly as the review process is in part internal to the Department he is unhappy given previous experience that the process should be undertaken, and thirdly he would be prejudiced by the delay before he could then come to this Court as a matter of law to have the meaning of "payable" determined. In relation to the second point, he has referred to the Commonwealth Ombudsman Annual Report 1994-1995 (pp79-81) commenting upon the internal review system following a community group's complaint about changes to the Department's internal review procedures. That complaint arose from the decision to move its (or some of its) authorised review officers to regional offices, provoking the fear that those officers by proximity to other regional staff might have their independence jeopardised. The investigation identified other more general procedural concerns of the Ombudsman relating to access to the right of review, to monitoring of requests for review, to timely processing of review requests, and to adequacy of notice of the outcome of such reviews. The Department was reported to have accepted some of those concerns and to be addressing them. The Commonwealth Ombudsman Annual Report 1995-1996 does not refer further to that matter, although it contains a chapter dealing with the Department (pp53-69). There is nothing in the material before me which would otherwise provide a basis for any view that an authorised review officer would not conscientiously and independently conduct any review of the decisions. In any event, there is therefore no basis for that point. Clearly the power of the Court under s10(2) is discretionary, and according to Neaves J there is an onus on those seeking to persuade the Court that it should not exercise the jurisdiction conferred on it: Convery v Ziino (1986-87) 70 ALR 383 at 387. The discretion has been exercised from time to time: Brell v Willmot (1989-90) 17 ALD 462; A.E. Bishop & Associates Pty Ltd v Trade Practices Commission (1989) 11 ATPR 50-741. As with any judicial discretion, it is neither possible to list all matters which will be relevant to its exercise for every case nor appropriate to attempt to do so. The category of material factors is never closed and will vary from case to case and the weight to be given to any one factor will depend upon the particular circumstances. It is relevant, generally speaking, to have regard to any unnecessary delay and any increased expense if the alternative suggested remedy is pursued: Mercantile Credits Ltd v Commissioner of Taxation (No 1) (1985) 8 FCR 510. Indeed, any hardship involved in pursuing the alternative remedy will generally be relevant: Du Pont (Australia) v Comptroller-General of Customs (1993) 30 ALD 829. Consequently, there will be cases where there is clearly involved a matter of law, and where the Court will determine to resolve that matter of law despite adequate alternative review procedures: Kelly v Coats (1981) 35 ALR 93; AB Scaniainventor v Commissioner of Patents (1981) 54 FLR 367. It will generally also be relevant to have regard to the Court's need to provide properly for speedy resolution of matters before it where no other avenue of recourse is available: Bragg v Secretary, Department of Employment, Education & Training (1995) 38 ALD 251. In this matter, for reasons I have given above, the issue is not one of construing s100 of the Act, nor does it turn, as the applicant asserts, upon the meaning of the word "payable". It is really only as to the proper application of s100(2) to the facts. Although it may be arguable that the construction of 'payable' in s729 may touch upon the operation of s100(2), it does not directly go to its proper construction. The decisions in question involve a review of the factual assessment that the applicant at 11 February 1988 was not qualified as a matter of fact to receive the invalid pension, and a review of the discretionary judgment that although the applicant at 3 March 1992 was qualified to receive the invalid pension it was not reasonable in the circumstances that the payments of the disability support pension should commence at the earlier date. In Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523 at 530 this Court remarked as follows: "The learned primary judge pointed out that the legislation provided "its own method of review", referring to an applicant's right to go to the Anti-Dumping Authority referred to above. His Honour also remarked that, "it should not be thought that it is always appropriate to bring a matter of this kind before the Court". We agree and express the view that in many, (perhaps most) circumstances, the Court's proper response to an application of this particular sort should not be to embark upon a full hearing, but rather to exercise the discretion under s 10(2)(b)(ii) adversely to the applicant." The Court nevertheless entertained the application in that case firstly because the matter had already been decided by another Judge, and so it was desirable to have an authoritative decision by the Full Court, and secondly the matter was purely one of statutory construction and the trial judge had already determined to entertain it so ordinarily the Full Court would also do so. This matter does not involve such considerations. Here, there are clear alternative and adequate means of review. Indeed, as they are not confined to the limitations under s5 of the ADJR Act, they are more appropriate for the sort of matters the applicant wishes to ventilate. The scheme has been put in place by the legislature. This is one matter where I think there are really no considerations against recognising and giving effect to it. I am unable to see any real argument that the 'proper response' is other than to exercise the discretion under s10(2)(b)(ii) of the ADJR Act adversely to the applicant. It is hard to see what disadvantage to the applicant there could be if those procedures were undertaken, particularly the external procedures, through the Social Security Appeals Tribunal and the Administrative Appeals Tribunal. In the advent of adverse findings, provided an appropriate issue arose, the matter could then be brought back to this Court. Indeed, the means of review and the powers of review available to those two Tribunals are much more practically orientated and structured to facilitate review of decisions such as these. Consequently, I would grant the motion on that basis also. Finally it is complained that in any event this application is out of time. Sections 11(1)(c) and (3)(a) of the ADJR Act prescribes a 28 day time limit from the date the decision was notified. That has not been complied with. The decisions confirmed were made each on 15 February 1996 and conveyed to the applicant by letter dated 19 February 1996. That letter also notified the applicant of his right to review. The response asserts three matters: that the delay is small, that there is no prejudice, and that in any event the application for review is not out of time because it is based upon a decision conveyed in June 1996. I have referred above to the letter of 19 February 1996. The invitation of the delegate to have her review the material was ultimately taken up by the applicant by letter of 17 May 1996: he asked "the Officer in Charge" to review her decision or to refer it back to the delegate for review. The delegate responded by letter of 30 May 1996 seeking any additional information the applicant wished to provide and details of why he thought her decisions were wrong. His response by letter of 17 June 1996 was that there was no additional information to be provided and that the decisions were wrong because at the time of the application for sickness benefit he was not then suffering from a temporary condition, and that the discretion under s100(2) had not been exercised properly. The delegate by letter dated 19 June 1996 indicated that she had reconsidered her decisions and affirmed them. She again invited the applicant to have the decisions proceed to the internal review by an authorised review officer. I do not have to decide on the motion if any extension of time would be granted. There is some explanation for the delay provided by the terms of the letter of 19 February 1996, and the applicant taking up the invitation to have the delegate review her decision. There is no clear evidence of prejudice to the respondent by the delay. I am not prepared, having regard to the circumstances in which an order under O20 r2 will be made, to conclude that on this ground the applicant has no prospect whatsoever of succeeding. I reject this ground of the motion. I am not expressing a view one way or the other as to when time runs, when it expired, the validity or weight to be given to the applicant's explanation, or other matters. Those matters may or may not fall to be determined later. In reaching that conclusion, I have had regard to the comments of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. For the reasons given, in my view, the application should be struck out on the notice of motion of the respondent dated 21 August 1996 and I so order. I certify that this and the preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Mansfield. Associate: Dated: Applicant appears in person Counsel for the Respondent : Mr P C Walsh Solicitors for the Respondent : Australian Government Solicitor Hearing Date : 2 October 1996