MDXJ v Secretary, Department of Social Services

Federal Court of Australia|2020-12-10|Before: Besanko J

The applicant's Interlocutory application be refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 This is an application for discovery by the applicant in an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). An appeal under that section is limited to an appeal on a question of law. The respondents to the appeal are the Secretary, Department of Social Services and SVPX. SVPX has, to date, played no part in the appeal. For convenience, I will refer to the Secretary, Department of Social Services as the respondent. The decision of the Administrative Appeals Tribunal (the Tribunal) concerns the applicant's entitlement to the Family Tax Benefit (FTB) under the A New Tax System (Family Assistance) Act 1999 (Cth) (the FA Act). 2 The precise documents sought by the applicant were not identified in his Interlocutory application or the affidavit which accompanied it. That difficulty was remedied on the day of the hearing. In an email to my chambers, the applicant identified the documents he sought by way of discovery as the Department of Social Services Policies 1.1.C.100, 2.1.1.20, 2.1.1.25, 2.1.1.60, 2.2.2 and 2.2.4 as at 15 September 2016. The applicant went on to say that he sought discovery of these policies "for the purpose of giving weight to the DSS Policies that were actually before the tribunal either directly or via the parties submissions.. and to rely on DSS policy as regards the proper interpretation of legislation in the appeal again weighted by its consistency over the period, or the contrary". The applicant said that he estimated that these documents amount "to around 25 pages" and so, it was said, it would not be unduly onerous for the respondent to have to discover them. 3 The significance of the date of 15 September 2016 is that that is a date relevant to the care arrangements which are at the centre of the Tribunal's decision. The respondent accepts that if the policies are relevant (which she denies), then the relevant date is 15 September 2016.

Background 4 On 19 February 2019, the Tribunal made the following directions in the review which was before it: 1. The request to issue summonses is refused. 2. The matter is to be listed for a further hearing at a date to be advised by the Registry for the parties to be heard on the issue of final orders and the decision in the reviews. (MDXJ and Secretary, Department of Social Services (Social services second review) [2019] AATA 177 (MDXJ (No 1)).) 5 The applicant purported to appeal against these directions. I decided that the Tribunal's reasons and directions were not a decision within s 44 of the AAT Act and held that the appeal was incompetent. I made an order that the appeal be dismissed on the basis that it was incompetent (MDXJ v Secretary, Department of Social Services [2019] FCA 2163; (2019) 168 ALD 454). 6 The review was considered again by the Tribunal and after that further consideration, the Tribunal made the following decision: The decision under review is set aside and substituted with a decision affirming the authorised review officer's decision. (MDXJ and Secretary, Department of Social Services (Social services second review) [2020] AATA 2520 (MDXJ (No 2)).) The applicant now appeals against this decision. The reasons in MDXJ (No 1) and in MDXJ (No 2) are both relevant to the merits of the appeal which is presently before the Court. 7 The applicant appears in person. His Amended Notice of appeal is a document of 40 pages and it consists of the following: (1) 46 matters described as questions of law; (2) 7 matters described as findings of fact that the Court is asked to make; and (3) 46 matters described as grounds relied on in the appeal. 8 The respondent submits that a relevant matter on this application is that a calculation of the applicant's entitlement under the FA Act, should the appeal be allowed and the applicant's submission as to his FTB entitlement during the relevant period be adopted by the Tribunal on the remitter, results in a benefit of $1,279.88. The applicant claimed in his oral submissions that the amount is up to $5,000. 9 In his affidavit in support of his application for discovery, the applicant summarises his reasons for seeking the discovery of the DSS Guides or Policies as follows: 12. I am therefore necessary [sic] seeking clarification from the Court as to whether or not DSS Guides are relevant to the review (which might eliminate Grounds and simplify the Appeal hearing), whilst if they are relevant (especially in light of Member Kennedys [sic] transcript comments), which versions of these guides are in fact so relevant. 13. Potential outcomes of this interlocutory are; (a) If they are not relevant, then the matter is clarified and the Grounds condensed. (b) If they are relevant, but only those that were current as at 15 Sept 2016, then discovery of these 'missing and relevant' DSS Guides will rectify the prior failure of the Secretary to provide these documents to the Tribunal in either the TDocs or in submissions, which were otherwise unavailable online to the Applicant. (c) If they are relevant, but only those that were properly put before the Tribunal, then the further discovery will have the effect of enabling the court to see what parts of the Guides that were before the Court were unchanged since 15th Sept 2016, and hence remained relevant. (d) In the alternative, a finding that the Tribunal should have had regards to the 'current' DSS Guides that were put before them and referred to in submissions, and discovery is not required to establish the differences since 15th Sept 2016. 14. I ask that the Court make findings to clarify this situation and ensure that any necessary discovery is made in a timely manner.

The Applicant's Arguments 10 Subject to one, or possibly two, exceptions, the applicant has what he considers to be the relevant DSS Policies, but not those policies relevant as at 15 September 2016. Those are the policies which he seeks by way of discovery. He submits that his appeal raises questions as to the proper construction of the FA Act and, as he put it at one point in his oral submissions, he should be able to put his best case "as to how the legislation on 15 September 2016 should be interpreted" by being able to rely on the view of the respondent at that time as expressed in the policies. As I understood him, he does not claim that the Tribunal was bound to apply the policies, but "[t]he fact that there are DSS guides over the whole period of this, whether DSS guide hasn't changed, that indicates consistency and stability of policy or, on the contrary, the lack thereof, which the court can take into account when it weighs what is in the guides". 11 The applicant sought to support his argument by reference to an example. He said that he had DSS Guide 2.1.1.70, both as at 15 September 2016 and a later version. That policy deals with disputed care arrangements. The policy relevant as at 15 September 2016 is in the Appeal Book as T5 and contains a notation that it was last reviewed on 16 May 2016. The later version of the policy is also in the Appeal Book at p 277. That version of the policy contains a notation that it was last reviewed on 2 July 2018. There are some differences between the two policies, and the applicant identified one of those differences. The applicant asserts that the authorised review officer wrongly applied the later version of DSS Guide 2.1.1.70. It may be that the applicant also has had access to DSS Guide 2.1.1.20. 12 At one point, the applicant said his complaint was that the Tribunal said it would have regard to the policies and then deliberately ignored them. 13 The respondent submits that the policies will not assist in the interpretation of the legislation. Furthermore, the respondent submits that the argument the applicant now wishes to advance is inconsistent with the argument he advanced before the Tribunal. The respondent submits that the applicant now wishes to argue that the policies may be of assistance in the interpretation of the Act, whereas before the Tribunal, he argued that the policies were irrelevant and the key to the resolution of the problem was the proper interpretation of the Act. 14 One of the submissions the applicant made in reply seemed to be that the Tribunal had followed the policy, rather than the proper interpretation of the Act.

Disposition 15 The application should be refused. 16 An order for discovery should not be made unless the making of the order sought will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible (r 20.11, Federal Court Rules 2011 (Cth) (the Rules)). This is reinforced in paragraph 10 of the Court's Central Practice Note: National Court Framework and Case Management (CPN-1). I must also interpret and apply the Rules in a way that best promotes the overarching purpose identified in s 37M of the Federal Court of Australia Act 1976 (Cth) noting that the overarching purpose includes the objective of the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute (s 37M(2)(e)). Although decided under a different procedural regime, the following observations of Tamberlin J in United Salvage Pty Ltd v Louis Dreyfus Armateurs SNC [2006] FCA 116 at [3] remain apposite: On a discovery application, the Court has a broad discretion and will balance the costs, time and possible oppression to the producing party against the importance and likely benefits which arise to the requesting party from production of the documents: Australian Broadcasting Commission v Parish (1981) 41 FLR 292 at 295. The Court will ensure that in all the circumstances, the litigation is conducted fairly in the interests of both parties, and care must be taken to make sure that there is no excessive or unnecessary discovery: see Index Group of Companies Pty Ltd v Nolan [2002] FCA 608. This Court has made it clear in Practice Note 14 that it will take a restrictive approach to discovery to ensure that excessive and wasteful discovery does not occur. 17 The part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case (Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20; (2010) 182 FCR 115 at [43]). Further, it is well-established that the Tribunal must make the correct or preferable decision in each case on the material before it and that the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642-643 per Brennan J). The important matter is compliance with the terms of the relevant statute itself (Minister for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 569). 18 In Elbehidi v Secretary, Department of Employment [2015] FCA 1229, White J considered an argument that the Tribunal, which was hearing a review under the Social Security Act 1991 (Cth), had erred in failing to take into account the Guide to Social Security Law published by the Department of Social Security. In the course of rejecting that argument, his Honour said at [38] and [44]: 38 However, the conclusion that the Tribunal will ordinarily have regard to a policy applied by the original decision maker is not the same as a conclusion that the Tribunal is bound to have regard to that policy so that a failure to do so will amount to an error of law in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39. The applicant did not point to any feature of the SS Act indicating that a decision maker is bound to consider the Guide, and none has been identified. 44 The range of matters to which the Secretary may have regard, by virtue of s 595(1)(b), is diverse. That being so, it is probable that decision makers will mention those matters which they regard as pertinent in the particular circumstances of an applicant's case, and not every possible matter. That appears to be this case. I note again that the Tribunal was not bound to consider the passages in the Guide to which the applicant referred. This ground of appeal fails. (emphasis in original.) 19 The policies do not bear on the correct interpretation of the FA Act and are not relevant for that purpose. Furthermore, the Tribunal was not bound to take them into account and they are not relevant on that account. Had I had any lingering doubt about relevance (which I do not), the amount in issue would be a reason not to order discovery. 20 The application is refused. The respondent seeks costs in a fixed amount of $750.00 and, in light of the outcome of the application, that would seem to be an appropriate order. However, I will hear the applicant on such an order at the time I hand down judgment. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko.

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