Dunning v Secretary, Department of Family & Community Services

THE COURT: 1 The appellant appeals from a judgment of the learned primary judge (Kenny J) on 4 August 1999 dismissing an appeal brought pursuant to s 44 of the Administrative Appeals Act 1975 (Cth) against the decision of the Administrative Appeals Tribunal ("the Tribunal") on 5 May 1999. That decision affirmed the decision of the Social Security Appeals Tribunal on 11 December 1998 which in turn affirmed the decisions made by a delegate of the Secretary of the Department of Family and Community Services on 18 September 1998 and an authorised review officer on 6 November 1998 to reject the appellant's claim for farm household support lodged on 6 September 1998. That claim was made pursuant to the provisions of Pt 3 of the Farm Household Support Act 1992 (Cth) ("the Act"). 2 On 17 June 1999 the respondent filed a motion for an order that the appeal from the decision of the Tribunal be dismissed pursuant to O 20 r2 of the Federal Court Rules on the ground that it disclosed no reasonable cause of action or alternatively an order that the appeal be struck out pursuant to O 11 r16 of the Federal Court Rules on the ground that it disclosed no reasonable cause of action. The primary judge found that neither the appellant's original notice of appeal nor his proposed amended notice of appeal disclosed any question of law that could constitute the basis of an appeal under s 44 of the Administrative Appeals Act and her Honour was unable to find any "as yet unformulated question of law" arising from the Tribunal's decision that might form the basis of an appeal to the Court. The primary judge concluded that the appeal "as both presently constituted and proposed" was hopeless and that the proceeding instituted by the appellant was foredoomed to fail. 3 The notice of appeal to the Full Court sets out the following grounds: "The judge erred in striking out my application. I am a self employed farmer. I [am] appealing social sequiritys (sic) decision to pay me Newstart when the social sequirity (sic) states Newstart cannot be payed (sic) to self employed." The order sought in the notice of appeal is: "Transfer Newstairt (sic) to buissness (sic) and self employment payment". 4 We are satisfied that the notice of appeal to this Court does not disclose any ground of appeal or error of law and we are further satisfied that the primary judge made no error of law in dismissing the appellant's appeal. 5 In the notice of appeal to the Federal Court against the decision of the Administrative Appeals Tribunal on 5 May 1999 the question of law raised on the appeal was identified as: "cancell (sic) Newstart and transfer to Farm Household Support. Farm Household Support Scheme (1991)". The order sought in the notice of appeal was "transfer to Farm Household Support" and the grounds of the appeal were set out in the following terms: "Involved in family buissness (sic) in WA M P Dunning & Son, Court order Northam WA to sort out farm with head office National Bank & Elders, in lue (sic) of Court. Using farm payment via social sequirity (sic) & walking distance to the Court till return of stolen equipment via Dowerin WA Police". 6 On 29 July 1999 the appellant filed a notice of motion seeking leave to amend his notice of appeal. He filed a proposed amended notice which set out the questions of law raised on the appeal as being: "can Social Sequirity (sic) Centrelink pay me Newstart when I am self employed". The orders sought in the proposed amended notice of appeal were: "transfer Newstart to either Farm Household Support buissness (sic) & self employment payment". The grounds of the appeal were set out in the proposed amended notice of appeal as: "Documents buissness (sic) & self employment payment Centrelink. Copy partnership Letter National Bank rejecting loan application Power account farm Avon Loc 12757 Dowerin. Letter Northam Police concerning equipment removal". On 4 August 1999 the primary judge dismissed the motion seeking the amendment of the notice of appeal in these terms. 7 It is apparent that the appellant is under a misconception as to the nature of an appeal to the Federal Court under s 44 of the Administrative Appeals Act and an appeal from a single judge to a Full Court of the Federal Court. An appeal brought under s 44 of the Administrative Appeals Act can only be brought in respect of a question of law. As Brennan J said in Waterford v The Commonwealth (1986) 163 CLR 54 at 77: "There is no error of law simply in making a wrong finding of fact". 8 He has not set out in his notice of appeal to the Court or to the Full Court any question of law or any grounds upon which either the Tribunal or the primary judge erred in law. Nevertheless we have examined the decision of the Tribunal and the decision of the primary judge in order to determine whether there is some question of law or issue of law not yet articulated or identified by the appellant which might properly form a subject of appeal under s 44 of the Administrative Appeals Act or by way of appeal to the Full Court. We have been unable to do so. 9 The appellant made a claim for the payment of farm household support pursuant to the provisions of Pt 3 of the Actwhich claim was rejected successively by a delegate of the secretary, Department of Family and Community Services, an authorised review officer and the Tribunal. 10 Having regard to the relevant legislation there was evidence before the Tribunal which not only entitled the Tribunal to determine that farm household support was not payable to the appellant pursuant to s 9 and s 12 of the Act but bound it to make that determination. 11 The qualification for the payment of farm household support is found in s 7 of the Act which provides: "Subject to this Division, a person is qualified for farm household support in respect of a period if, throughout the period: (a) the person: (i) is a farmer; and (ii) is at least 16; and (iii) is an Australian resident; and (iv) is in Australia; and (b) a certificate of inability to obtain finance issued in respect of the person has effect." The expression "farmer" is defined in s 3(2) of the Act as meaning: "a person who: (a) has a right or interest in the land used for the purposes of a farm enterprise; and (b) contributes a significant part of his or her labour and capital to the farm enterprise; and (c) derives a significant part of his or her income from the farm enterprise." Section 4 of the Act sets out the requirements for a certificate of inability to obtain finance. 12 Section 9(1) of the Act provides that: "Farm household support is not payable to a person for a period during which the person is qualified for farm household support if during that period: … (c) another support payment is being paid to the person (see section 12); …." Section 12(1) of the Act provides: "Farm household support, exceptional circumstances relief payment or restart income support is not payable to a person if the person is receiving a social security benefit, a social security pension or a service pension". Section 3(1) of the Act provides that, inter alia, the expression "social security benefit" has the same meaning as in the Social Security Act 1991 (Cth) ("Social Security Act"). In that Act the expression "social security benefit" is defined, as meaning, inter alia, relevantly for present purposes "newstart allowance". 13 The Tribunal found that the appellant was in a farming business partnership in Dowerin, Western Australia, with his father and his father's wife (the appellant's stepmother) in 1985 and that his father had died in 1995 bequeathing certain of his farming lands to his wife and to the appellant in equal shares as joint tenants. The remainder of the appellant's father's farming land was bequeathed to the appellant, subject to the appellant paying various estate payments. 14 The Tribunal also found that the appellant had been receiving newstart allowance since 11 September 1991. This was not disputed by the appellant who claimed that it had been paid to him wrongly as he had been self‑employed at the time he was receiving the allowance. A newstart allowance is payable pursuant to the provisions of Pt 2.12 of the Social Security Act. He told the Tribunal that he owed a debt to the Commonwealth in respect of that allowance which he was willing to pay but had not done so. 15 The Tribunal noted that the appellant contended that he had remained a self employed farmer since he discontinued actively farming the property situated in Western Australia and came to live in Victoria in 1993. The Tribunal found that the appellant was unable or unwilling to give evidence in support of his contention that while living in Victoria he had been contributing a significant amount of labour and farm capital to his Western Australian farm enterprise and that he had derived a significant part of his income from his farm enterprise. 16 The Tribunal also noted that the appellant indicated that as he was a self employed farmer and owned unencumbered land worth $800,000, he was not entitled to receive the newstart allowance notwithstanding the fact that he had been receiving this allowance since 11 September 1991. The appellant also informed the Tribunal that he would return to Western Australia and resume direct farming activities when certain equipment stolen in 1994 was returned or recovered by the farming business. 17 The Tribunal concluded with the following findings: "13. Mr Dunning did not provide the Tribunal with any documentary or oral evidence that he had obtained a certificate of inability to obtain finance in the form specified by section 4 of the Act which is required to qualify for FHS [farm household support] pursuant to section 7 of the Act. 14. The Tribunal finds that Mr Dunning has received a Social Security benefit since September 1991 and accordingly, that FHS is not payable to him pursuant to sections 9 and 12 of the Act. The Tribunal also finds that the evidence indicates that Mr Dunning has not satisfied the statutory definition requirements for a 'farmer' since he came to live in Victoria in 1993. The Tribunal is satisfied that Mr Dunning has not contributed a significant part of his labour or capital to the farm enterprise, nor has he derived a significant part of his income from the farm enterprise in accordance with the definition of a 'farmer' prescribed by section 3 of the Act." 18 The Tribunal made no error of law in making these findings nor does any question of law arise out of them. The appellant had not provided the Tribunal with any evidence that he had obtained a certificate of inability to obtain finance in the form specified by the Act and it was not in issue that the appellant had received a social security benefit as defined by the Social Security Actsince September 1991. A "social security benefit" as defined by the Social Security Actincluded the newstart allowance. It was open to the Tribunal to find that the appellant had not fallen within the definition of "farmer" in s 3(2) of the Act since he came to live in Victoria in 1993. On the basis of those findings the Tribunal was bound to find that the appellant was not qualified for farm household support within the terms of s 7(a) of the Act as he was not a "farmer" as defined and a certificate of inability to obtain finance had not issued in respect of the appellant. 19 Further, by reason of the provisions of s 9(1) and s 12(1) of the Act the receipt of the newstart allowance disqualified the appellant from being entitled to payment of the farm household support during the period in which he had received the newstart allowance. 20 In our opinion, the primary judge was entitled to find that the appellant's appeal as constituted by his notice of appeal and his proposed amended notice of appeal was hopeless and in our opinion, the primary judge did not err in dismissing the appeal. 21 The relief sought by the appellant in his notice of appeal against the decision of the Tribunal and in his notice of appeal to this Court discloses a fundamental misunderstanding of the powers of the Court. His initial claim was for the payment of farm household support. Before the Tribunal and in his notices of appeal he appeared to be saying that he had not been entitled to the newstart allowance paid to him and that he wanted that allowance cancelled in some way so that he could be paid the farm household support payment. It was not open to the Tribunal or the Court in any way to make any order in relation to the newstart allowance the appellant had been paid. All the Tribunal and the Court could do was to determine whether the appellant was entitled to the payment of farm household support in accordance with the relevant legislation. On the evidence before the Tribunal, it was open to it to find that the appellant was not so entitled as a matter of fact and a matter of law. The primary judge made no error of law in her analysis of the Tribunal's decision. 22 There may be some doubt as to whether the orders made on 4 August 1999 were interlocutory in nature: Hall v Nominal Defendant (1966) 117 CLR 423 at 440; Tampion v Anderson (1973) 48 ALJR 11 at 12; Wickstead v Browne (1992) 30 NSWLR 1 at 11; Brouwer v Titan Corporation Ltd (1997) 73 FCR 241 at 242; but see Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148 at 149. Accordingly leave to appeal may be required: Federal Court of Australia Act 1976 s 24(1A). As we have formed a clear view that if leave were granted, the appeal must be dismissed, the preferable course in the present case is to grant leave to appeal and to dismiss the appeal. We emphasise that we have taken this course to enable the appeal to be disposed of on the merits without having to determine whether leave is required. In these circumstances it has been unnecessary to consider the principles set out in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. 23 The appeal before this Court will be dismissed with costs. I certify that the preceding twenty‑three (23) paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Merkel, Goldberg and Weinberg.