Perera v Department of Families, Housing, Community Services and Indigenous Affairs

THE NOTICE OF APPEAL 8 Ms Perera filed a notice of appeal on 18 March 2011. The notice of appeal was required to state the questions of law on which Ms Perera relied under s 44 of the AAT Act. Ms Perera is not legally qualified and represented herself. The notice of appeal did not state any questions of law in a readily comprehensible form, but rather narrated the facts in a way which did not expose the issues which needed to be decided. A further notice of appeal was filed by Ms Perera on 25 March 2011 in substantially the same form and with substantially the same vices. 9 As Ms Perera was self-represented, at the first directions hearing, she was asked to explain the essential questions of law which formed the basis of her argument. From that discussion, several questions emerged which might be regarded as questions of law, but a number of other questions arose which were matters of fact. For example, a question arose as to the circumstances in which the respondent withheld payment of social security benefits in order to satisfy what it regarded as prior overpayments. This question, and several other like matters, were dealt with by the Tribunal. Those issues did not raise any questions of law within the meaning of s 44 of the AAT Act. 10 As it seemed very unlikely that Ms Perera would be able to improve on the formulation of her notice of appeal, and as the issues of law which she raised orally at the directions hearing seemed dubious, the respondent was invited to make an application for summary judgment under s 31A(2) of the FCA Act, if it was so advised, on the basis that Ms Perera's oral articulation of the questions of law should be taken as if included in a notice of appeal.

CONSIDERATION UNDER S 31A(2) 11 The notice of appeal does not comply with O 53 r 3(2) of the Federal Court Rules: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232; (2003) 76 ALD 321 at [17]-[18]. This would be an independent ground upon which to dismiss the proceeding under s 31A(2) of the FCA Act. However, a further ground is that the only questions of law which emerge from the written and oral submissions made by Ms Perera are untenable. 12 First, Ms Perera argued that cl 2(1)(d), Sch 3 of the Act requires the net rental property loss to be deducted from the amount of the adjusted taxable income. This is expressly contradicted by the opening words of the subclause which provides for the items, including net rental property loss, to be added together to reach the adjusted taxable income. 13 Next, Ms Perera said that the Disability Support Pension does not fall within cl 2(1)(e), Sch 3 of the Act because it is exempt income. That is a description which comes from other legislation. Ms Perera said that that description applies in the ascertainment of the adjusted taxable income. However, this is contradicted by cl 7(a), Sch 3 of the Act which expressly provides for the Disability Support Pension to be a tax-free pension for the purposes of Sch 3 of the Act. 14 Finally, Ms Perera said that a Parenting Payment is exempt income, again, by reference to other legislation. But such legislation has no effect on the definition of adjusted taxable income in Sch 3 of the Act. A Parenting Payment is taxable income within the meaning of cl 2(1)(a), Sch 3 of the Act. 15 Consequently, so far as one can extract from the lengthy submissions and other documents of Ms Perera, the only potential questions of law which emerge are ones which cannot succeed. 16 It follows that the proceeding will be dismissed on the basis that Ms Perera has no reasonable prospect of successfully prosecuting the appeal. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.