Paraponiaris and Secretary, Department of Employment [2015] AATA 895 | Case summary

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Paraponiaris and Secretary, Department of Employment [2015] AATA 895 | Case summary | Zoe

[24]

The relevant facts were not in dispute. Mr Paraponiaris was employed as a construction worker by a company (in its capacity as trustee of a unit trust) until his employment ended on either 15 or 16 April 2014. An ASIC company extract establishes that liquidators of the company were appointed on 4 June 2014.
On 3 June 2015, the Secretary received a claim dated 29 May 2015 that Mr Paraponiaris was eligible for an "advance", that is to say, for financial assistance under the Act on account of his entitlements in respect of that employment. Mr Paraponiaris' claim was sent by registered post on 1 June 2015.
The claim was made in the form approved by the Secretary under the Act for claims made by post. The approved form poses various questions, including whether a claimant was an Australian citizen at the time their employment ended. If that question is answered affirmatively, as it was by Mr Paraponaris, the form states that "it is mandatory that you provide certified documentary evidence to support your claim" (emphasis in original). In the accompanying note containing a list of acceptable forms of evidence, it states that "acceptable evidence of your citizenship ... includes a copy of at least one of the following categories of documents that has been certified as a 'true copy' of the original document by a person authorised to do so" (emphasis in original), those categories relevantly including "a full Australian birth certificate". Reference is then made in the approved form to available sources of further information about the certification of documents.
Mr Paraponiaris' claim form was accompanied by various documents, including, relevantly, a copy of his birth certificate. However, contrary to the requirements set out in the approved form to which I have just referred, that document had not been certified by an authorised person as a true copy of his original birth certificate.
By letter dated 4 June 2015, the Secretary acknowledged receipt of Mr Paraponiaris' claim. By letter dated 9 June 2015, the Secretary informed Mr Paraponiaris that he had decided that he had decided that he was not eligible for an advance under the Act, as he had not made an "effective claim" for the purposes of s 14 of the Act.
Under cover of a handwritten letter dated 10 June 2015, which was received by the Secretary on 15 June 2015, Mr Paraponiaris enclosed a copy of his birth certificate which had been certified by an authorised person. It is unclear whether that document was a certified true copy or instead merely a copy of a certified true copy of his birth certificate, although I note that in his affidavit affirmed on 20 October 2015, Mr Paraponaris tends to suggest the former; however, for the reasons that follow nothing ultimately turns on that point.
I note that in that covering letter and also in more specific terms in his affidavit, Mr Paraponiaris stated that he made his claim in June 2015 after having made a previous claim in December 2014, in respect of which he did not receive a response. However, that evidence was not pressed by him at the hearing of his application; furthermore, there was no documentary evidence of such a claim before the Tribunal.

[40]

As I have said, the Secretary seeks to have the application for review dismissed on the basis that it "has no reasonable prospect of success" for the purposes of s 42B(1)(b) of the AAT Act. That provision should be construed in accordance with its own terms and in the context in which it appears.
Attention must be focused on the statutory text, rather than upon expressions used in authorities concerning analogous provisions or in extrinsic materials (Baini v R [2012] HCA 59; (2012) 246 CLR 469 at [14]; Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [92]). Nevertheless, considered in their appropriate context, authorities concerning analogous provisions may provide assistance in understanding the concepts underlying the statutory text (Brennan v Comcare [1994] FCA 1147; (1994) 50 FCR 555 at 572 per Gummow J).
It is impermissible to displace the statutory text by recourse to paraphrases of its language. In particular, the expression "no reasonable prospect" cannot be properly be interpreted in such a manner, nor by enumerating circumstances in which its operation will be enlivened; "[r]ather, full weight must be given to the expression as a whole" (see Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [56]- [60]; especially at [60]; see also at [22]).
In my opinion, the following principles governing dismissal of applications for review pursuant to s 42B(1)(b) of the AAT Act are relevant to this application for dismissal. It is a prerequisite to the exercise of the Tribunal's power to dismiss an application under s 42B(1)(b) that the Tribunal must be satisfied that the application "has no reasonable prospect of success" (see Spencer at [60]). That expression, particularly its concept of "success", is to be read in the context of the provisions governing the Tribunal's decision on review contained in s 43(1) of the AAT Act.
The exercise of the Tribunal's power to dismiss proceedings under s 42B, being a power to dismiss a proceeding summarily, "must always be attended with caution" and "is not to be exercised lightly" (Spencer at [24], [60]; see also Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 38 ALD 366 at 372), as ordinarily a party ought not be denied the opportunity to put their case and have it heard in the usual way; the expression "no reasonable prospect" prescribes a standard describing "a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to [hearing] in the ordinary way" (Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57], cited with approval in Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46]).
The requirement that the Tribunal be satisfied that the application "has no reasonable prospect of success" necessarily involves a consideration of the merits in the sense that it requires a finding that the application lacks any prospect of success which can properly be said to meet the standard of being a reasonable one (see Duncan v Fayle [2004] FCA 723; (2004) 138 FCR 510 at [22] per French J). The Tribunal's discretion to dismiss an application for review under s 42B(1) of the AAT Act is enlivened in circumstances where the Tribunal forms the view that the application, upon a practical judgment as to the expected ultimate outcome of the proceeding, suffers from the requisite deficiency described in s 42B(1)(b), which will depend upon the nature of the issues raised by the application, particularly whether the case involves resolution of issues of fact, law or both (Spencer at [25]-[26]).
Where the application for review requires resolution of a real issue or issues of fact (or law and fact, or mixed law and fact), the Tribunal cannot properly be satisfied that the application "has no reasonable prospect of success" for the purposes of s 42(1)(b) - it is not enough that the Tribunal has formed the view that the applicant is unlikely to succeed in respect of such issues (Spencer at [25]-26]; Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] per Gilmour J).
Where the application for review requires resolution of a real issue or issues of law, the Tribunal cannot properly be satisfied that the application "has no reasonable prospect of success" - that will be so where there may be room for doubt about a proposition of law upon which the success of the application for review depends. On questions of law, "an inquiry as to their merit should not be for the purpose of resolving them ... but in order to decide if it is sufficiently strong to warrant a [hearing]" (Dandaven at [6]).
The fact that the proposition of law is apparently precluded by existing authority may not always be the end of the matter, unless the success of the proceedings is critically dependent upon a proposition of law which would contradict a binding decision of the High Court (Spencer at [25]).
However, where the success of an application for review depends upon propositions of law said to arise from relevant legislative provisions which are not sufficiently tenable as a matter of proper statutory interpretation, in my opinion it is open to the Tribunal to be satisfied that the application has no reasonable prospect of success for the purposes of s 42B(1)(b).
In considering whether an application "has no reasonable prospect of success", the Tribunal ought not confine itself to the case as put by the applicant. Section 42B(1) is to be read and applied in the context of the Tribunal's role upon review. The Tribunal "is entitled to be guided by the issues that the parties choose to put before it for its consideration (Grant v Repatriation Commission [1999] FCA 1629; (1999) 57 ALD 1 at [17] per Merkel, Goldberg and Weinberg JJ). However, as the Tribunal upon review "is under a duty to arrive at the correct or preferable decision in the case before it, according to the material before it", and is thus "required to determine the substantive issues raised by the material and evidence advanced before it ... it is obliged not to limit its determination to the 'case' articulated by an applicant if the evidence and material that it accepts, or does not reject, raises a case on a basis not articulated by the applicant" (Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622 at [47] per Moore, Emmett and Allsop JJ, citing Grant at [17]-[18] with approval).
That being so, in my opinion it necessarily follows that in considering whether an application for review has a sufficient prospect of success for the purposes of s 42B(1)(b), the Tribunal should similarly not confine itself to the issues raised and submissions made by the applicant. If the Tribunal finds on the basis of the case put by the applicant that the application has a prospect of success precluding the exercise of its power to dismiss under s 42B(1)(b), then that will be the end of the matter. However, if, conversely, the Tribunal considers that the applicant's case as articulated fails to show sufficient merit, it should also consider, based on the material before it, whether the application nevertheless raises a real issue of fact or law (or both) which warrants a hearing.
In considering whether it is satisfied that the application has no reasonable prospect of success for the purpose of s 42B(1)(b), the Tribunal should turn its mind to the ways in which it might disturb the decision under review in a manner favourable to the applicant upon exercising its powers under s 43 of the AAT Act, given that it is required to arrive at the correct or preferable decision.
The Tribunal's power to dismiss an application within the terms of s 42B(1)(b) of the AAT Act is governed by the wider statutory context, particularly the Tribunal's obligation, in carrying out its functions, to pursue the objective of providing a mechanism of review that has the qualities enumerated in s 2A of the AAT Act. I note that those qualities were recently expanded in the substituted provision contained in the Tribunals Amalgamation Act 2015 (Cth).
The Tribunal's power to dismiss an application under s 42B(1)(b) reflects the fact that in such circumstances "it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing" (see Re Filsell and Comcare [2009] AATA 90; (2009) 109 ALD 198 at [33]).
I note that, conversely, applications to dismiss under s 42B should not be made except in appropriate cases, given the additional expense to the parties, waste of the Tribunal's time and resources and impeding of the Tribunal's pursuit of the objective in s 2A of the AAT Act which will otherwise occur (Re Filsell at [33]).

[41]

I note that there was no dispute that Mr Paraponaris' claim was made within the time prescribed by s 14(2) of the Act, having been made just before the expiry of the relevant period.
Mr Paraponiaris submitted that his application for review ought not be dismissed pursuant to s 42B(1)(b) in effect because it had a sufficient prospect of success so as to preclude dismissal, for the following reasons. Shortly stated, he submitted that the Secretary had acted unreasonably and capriciously in imposing the requirement that a certified true copy of his birth certificate must be provided with his claim.
By way of contradistinction, Mr Paraponiaris emphasised that in the case of claims made under the Act by automated "online" lodgement, the approved form for such claims, while also requiring certified documentary evidence, relevantly a certified true copy of a claimant's birth certificate, provided for the "uploading" of supporting documentation, including such certified documentary evidence, as attachments to the claim. Mr Paraponiaris submitted that that necessarily meant that postal claimants were prejudiced because an uploaded certified true copy of a document, being a copy of a certified true copy, was not in fact a certified true copy. Accordingly, he submitted, the requirement with which he had failed to comply in making his claim by post, relevantly being the provision of a certified true copy of his birth certificate, had no additional probative value.
In substance, he submitted that he therefore should not have been required to provide a certified true copy of his birth certificate, and the document he provided should have sufficed for the purposes of s 14(1)(b) of the Act, which requires that a claim, "[t]o be effective for the purposes of this Act ... be accompanied by any documents required by the Secretary".
In the alternative, Mr Paraponiaris submitted that the terms of s 14(1)(b) give rise to an implied discretion by which the nature of the documents required for a claim to constitute an "effective claim" for the purposes of s 14 of the Act may be varied in respect of a particular claimant after their claim is made. He submitted that both the terms of s 14(1)(b) and also the terms of s 14(1)(a), which requires that a claim "be in a form approved by the Secretary", should be read as permitting the Secretary to require different documents, or to approve a different claim form in respect of a particular claim which has been made, both by imposing more onerous requirements or by waiving compliance with existing requirements. In support of this proposition, Mr Paraponiaris submitted that this discretion could be seen in the fact that the Secretary might conclude that a claim was accompanied by forged documents and that it therefore did not constitute an "effective claim" despite apparent compliance with the terms of s 14.
In substance, Mr Paraponiaris submitted that the Secretary had erred in exercising that discretion by declining to exercise it in his favour so as to render his claim an "effective claim" for the purposes of s 14 of the Act. For the sake of completeness, I note that in his Statement of Facts, Issues and Contentions, Mr Paraponiaris adverted to lack of real dispute as to his citizenship, as he understands it, as being a relevant consideration that ought to be taken into account in exercising the contended discretion in his favour.
I note that Mr Paraponiaris initially submitted that the prefatory words of s 10(1) of the Act, which provide that "[a] person is eligible for an advance if the Secretary is satisfied of all of the following" enumerated matters, particularly the word "satisfied", served as the source of a discrete discretion which ought to have been exercised by the Secretary in his favour, but that submission was not pressed.
Shortly stated, the Secretary submitted that, given that certified documentary evidence of Mr Paraponiaris' citizenship was not provided with his claim, it followed that his claim was not an "effective claim" for the purposes of the Act, as such documents constituted "documents required by the Secretary" for the purposes of s 14(1)(b), being a strict legislative requirement.
The Secretary submitted that he has no discretion by which Mr Paraponiaris might be relieved from that mandatory statutory requirement. That requirement, like the time limit prescribed in 14(2), serves to meet the express objects of the Act in s 3, which are concerned not only with the payment of advances on account of unpaid employment entitlements but also with allowing the Commonwealth to recover such advances.
The Secretary submitted further that, while he is empowered to approve a different or altered form for the purposes of s 14(1)(a) and to require different documents for the purposes of s 14(1)(b) (see s 33(1) of the Acts Interpretation Act 1901 (Cth)), that is a power which can only properly be exercised in respect of claims that are yet to be made and moreover only in respect of all such claims, not particular claims. Further, the Secretary submitted that even if the discretion for which Mr Paraponiaris contended did exist, it would be unlawful for him to exercise it in respect of a particular claimant, given that the provisions evinced a legislative intention that claimants be treated consistently. The Secretary submitted that a claim made with forged documents would raise issues of criminal law, not satisfaction of the terms of s 14 of the Act.
Accordingly, the Secretary submitted in substance that the application for review of his decision that Mr Paraponaris is not eligible for an advance has no reasonable prospect of success for the purposes of s 42B(1)(b) of the Act and should be dismissed.

[42]

Given the evidence before the Tribunal and the lack of dispute as to the facts of the case, no real issue of fact arises; the question remains as to whether any real issue of law arises which requires resolution.
I turn first to Mr Paraponaris' first submission. The gravamen of his complaint concerns the nature of the Secretary's requirements in respect of the documents which are to accompany a claim for the purposes of s 14(1)(b) of the Act. As I have said, the question of whether an application "has no reasonable prospect of success" for the purposes of s 42B(1)(b) must be addressed in the context of the Tribunal's role upon review.
The proposition that the Tribunal might disturb the Secretary's decision that Mr Paraponiaris is not eligible for an advance under the Act on the basis for which he contended - that the very nature of the documents required by the Secretary for the purposes of s 14(1)(b) of the Act (or the nature of the forms approved by the Secretary for the purpose of s 14(1)(a)) are somehow deserving of criticism - is untenable, leaving aside the question of whether that proposition should be accepted. The Tribunal is not empowered to interfere with the Secretary's selection of required documents for the purposes of s 14(1)(b), nor with approval of forms for the purposes of s 14(1)(a); the Tribunal can only review decisions about particular claims which have been made.
The prefatory words of s 43(1) of the AAT Act provide that "[f]or the purpose of reviewing a decision, the Tribunal may exercise all the power and discretions that are conferred by any relevant enactment on the person who made the decision" (emphasis added). The "powers and discretions" to be exercised by the Tribunal pursuant to s 43(1) therefore depend not only upon the terms of the relevant enabling enactment but also upon the nature of the decision under review (see Shi at 295, 300).
As I have indicated, the essential issue in this proceeding is whether Mr Paraponaris made an effective claim and is thus eligible for an advance under the Act. The issue of whether the Secretary might or should have determined to require documents other than, or instead of, those which were in fact required by the Secretary at the time Mr Paraponiaris made his claim could not properly be said to arise in this proceeding, given the nature of the Tribunal's role upon review, the terms of the Act and the nature of the decision under review.
I turn now to Mr Paraponiaris alternative submission that the terms of s 14(1)(b) of the Act give rise to an implied discretion which ought to be exercised in his favour upon review. I have concluded that that proposition is not sustainable and is therefore not strong enough to found a reasonable prospect of success, whether on the basis submitted by Mr Paraponiaris or on any other basis. It is very clear from the express terms of s 14(1)(b), read in their context, that the "documents required by the Secretary" are those which have been selected by the Secretary as requisite documents to be provided by any and all claimants at the time they make a claim.
It is necessary to ascertain "the ordinary and grammatical sense of the statutory words" (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at 31 per French CJ; emphasis added). Section 14 is to be read as a whole. The use of tenses in s 14(1) is quite deliberate - the expressions "be in a form approved" and "be accompanied by any documents required" are to be read in the context of the expression "be made" in para (c) of s 14(1) and the temporal requirement in s 14(2) (emphasis added). To be an effective claim, a claim must be made within the prescribed time, in the prescribed form and must be accompanied by the prescribed documents. Therefore the determination of the "required documents" for the purposes of s 14(1)(b) must necessarily have occurred at some indeterminate point of time preceding the making of a claim.
In my opinion it is abundantly clear that the "documents required" for the purposes of s 14(1)(b) cannot be varied in respect of any extant claim, as they have already crystallised. The use of the word "must" in the prefatory words of s 14(1) and the conjunctive requirements of both s 14 and s 10 mean that the Secretary is merely obliged to consider whether each of the enumerated matters governing eligibility are satisfied. The terms of s 14 and also s 10 serve to meet the express objects of the Act. As the Secretary submitted, instances of claims made with forged documents raise issues of law outsides the confines of s 14 and which could not displace its proper construction.
I cannot discern any source of a power or discretion, whether express or implied, and whether in the terms of s 14, other provisions of the Act or some other legislation, by which the Secretary might depart from those requirements in the case of a particular claimant.
Furthermore, I can see no express or implied power or discretion by which the time limit for the making of a claim prescribed by s 14(2) might be extended and thus give rise to a real issue as to whether an "effective claim" might be said to have been made for the purposes of s 14 in some other way (whether by Mr Paraponiaris' subsequent correspondence or otherwise), leaving aside the question of whether the application could be said to have a real prospect of success in that regard in any event.
Moreover, the Tribunal's powers of review under s 43(1) of the AAT Act do not afford any discrete source of power or discretion by which Mr Paraponiaris might somehow be relieved from the consequences of his claim's failure to satisfy the terms of s 14(1)(b).
Unfortunately for Mr Paraponiaris, the legislative intention evinced by the strict terms of s 14 is directed towards the attainment of a balance between the objects expressed in s 3 of the Act, which are countervailing to the extent that the first favours former employees while the second is directed to allowing the Commonwealth to recover public funds paid out to such employees.
I have also considered whether the application for review raises any other issue of fact or law beyond those canvassed by the parties which might found a reasonable prospect of success; I have concluded that it does not.

Paraponiaris and Secretary, Department of Employment [2015] AATA 895 (20 November 2015)

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Paraponiaris and Secretary, Department of Employment [2015] AATA 895 (20 November 2015)

Legislation Cited (5)

Cases Cited (8)