Luck v Chief Executive Officer of Centrelink

REASONS FOR JUDGMENT 1 On 30 June 2008 Ms Gaye Luck filed an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). The application sought review of certain decisions attributed to the Chief Executive Officer of Centrelink and the Secretary of the Department of Human Services or their delegates. Three of the decisions related to the means by which Ms Luck would be permitted to have access to Centrelink in order to deal with her affairs. The decisions were identified as: · A decision made on 31 July 2006 that, on and from that date, for a period of 12 months, Ms Luck could only deal with Centrelink by telephone contact with a nominated officer. She was advised that any attempt to make contact with Centrelink by alternative means, including attendance at Centrelink offices, would not be permitted. If she contacted other officers, those officers would not deal with her and she would be asked to leave Centrelink premises should she attend in person. · A decision made on 10 August 2007 to like effect which was to operate until 10 November 2007. · A decision made, in or about June 2008, to like effect which was to operate until 28 August 2008. 2 Each of these decisions was said to have been made under the Commonwealth Services Delivery Agency Act 1997 (Cth), the Public Service Act 1999 (Cth), the Public Order (Protection of Persons and Property) Act 1971 (Cth) and "Social Security Law". No specific provisions of these enactments were identified. 3 Ms Luck also sought to review the conduct of the respondents in relation to the making of these three decisions. 4 She also sought to challenge what she described as the failure of the respondents to make a decision to review the decision of an Area Manager, said to have been made on 10 August 2007, the second of the two decisions identified above, review of which was said to have been sought by the then Chief Executive Officer of Centrelink, on 3 October 2007. 5 The respondents filed a notice of objection to the competency of the application insofar as it sought review of the decisions made on 31 July 2006 and 10 August 2007, the alleged failure to review the 10 August 2007 decision, and the conduct relating to the making of those decisions. The objection was founded on the time limits imposed on the commencement of proceedings under the ADJR Act by s 11(3) of that Act. The notice of objection to competency was filed on 3 July 2008. The second respondent sought an order that she be removed as a respondent on the ground that neither she nor any delegate of hers had made or could make any of the impugned decisions. 6 On 4 July 2008 I ordered that the first respondent file and serve contentions of fact and law in support of his objections to the competency of the application and that the second respondent file and serve contentions of fact and law in support of a separate application that she be removed as a party. These contentions were filed in accordance with the directions. I adjourned the further hearing of the application to 20 August 2008. 7 On 20 August 2008 Ms Luck failed to appear when the matter was called on for further hearing. In her absence I ordered that she file and serve any submissions in response to the respondents' submissions on or before 26 September 2008. Ms Luck did not file any submissions prior to 26 September 2008. She had not done so by 15 October 2008, the day fixed for the hearing of the respondents' preliminary objections. 8 On 15 October 2008 Ms Luck sought a further adjournment of the hearing of the proceeding and an extension of time within which to file and serve her submissions. The applications were not opposed. I acceded to her applications and adjourned the matter for hearing today. In the meantime Ms Luck has filed written submissions. 9 Section 11(3) of the ADJR Act required that Ms Luck lodge any application which sought to impugn the decisions made in July 2006 and August 2007 and the conduct of the respondents in the making of these decisions within 28 days of her being notified in writing of the decisions. The same time limit applied to the alleged failure of the respondents to make a decision in respect of her request for review in October 2007. Ms Luck failed to make timely applications in relation to these decisions, the conduct or the alleged failure to make a decision. She attributes this failure to a lack of knowledge of the legal requirements and her poor health. She contends that the respondents would suffer no prejudice were the objection to competency be dismissed. 10 The Court has discretion to enlarge the time within which an application may be lodged notwithstanding the fact that the prescribed time limit has expired: see s 11(1)(c) of the ADJR Act. Ms Luck has not sought, on notice, an order enlarging time in respect of the decisions and conduct to which the objections to competency relate. She submitted that she had, in substance, made such an application in an affidavit sworn in support of her application. The respondents did not object to me treating the application as having been regularly made and considering it. 11 It is, therefore, convenient to deal with both the objections to competency and the application for enlargement of time together. If Ms Luck is successful and an extension of time is granted then the foundation of the objections to competency will fall away. 12 When an application for an extension of time to commence a proceeding under the ADJR Act is made the Court has an unfettered discretion. There is a large number of potentially relevant considerations which, depending upon the circumstances, may need to be balanced in determining how the discretion should be exercised. Many of these were collected by Wilcox J in his judgment in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9. 13 I am prepared to assume, in Ms Luck's favour that she did not make timely applications because of ignorance of her legal rights and because of health problems. She has also been occupied with a good deal of litigation in this Court and elsewhere. I am also prepared to assume that the respondents would suffer no prejudice were an extension of time to be granted. 14 On the other hand, it is necessary to have regard to the considerable delay involved and the merits of the principal application. The factor which, however, weighs most heavily against the granting of an extension of time is that the two decisions which are the subject of the objections to competency were both expressed to be operative for only twelve months and three months respectively. Their effect is spent. Any attempt to deal with the alleged failure to make a decision to review the second decision would, for the same reason, serve no useful purpose. No useful purpose would be served at this stage by quashing these decisions or declaring them to be null and void. The June 2008 decision, in respect of which a timely application was made, was in substantially the same terms as the two spent decisions. Ms Luck relies on the same grounds to challenge all three decisions. She will not, therefore, be deprived of the opportunity of testing the legal validity of the restrictions placed on her in relation to her dealings with Centrelink. 15 Ms Luck's application for an enlargement of time should be dismissed. The respondents' objection to competency should be upheld. 16 I have been unable to identify any provision in any of the Acts to which Ms Luck referred in her application which empowered the second respondent or any of her delegates to make any of the impugned decisions. Nor is there any evidence that the second respondent or a delegate of the second respondent had, in fact, made any of the impugned decisions. She is not a necessary party to the proceeding and she should be removed as a party. I will so order. 17 In the course of submissions this morning, Ms Luck applied orally for an order that the Commonwealth of Australia be joined as a party respondent to the proceeding. When asked to identify the reasons why it was she sought such an order she submitted that the Commonwealth was what she described as the "over-riding authority". She said further that the Commonwealth was ultimately responsible for the events about which she complained. She said further that she had evidence that Ministers had been involved in relevant decision making. She did not tell the Court what the evidence was, nor was there any affidavit material to support such a claim. 18 In my view no adequate reasons have been advanced to support Ms Luck's application to join the Commonwealth as a respondent. The application will be refused. 19 I will hear the parties on the form of orders which should be made to give effect to the reasons and to facilitate the trial of the application insofar as it has survived the respondents' objections to competency. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY.