Pham v Secretary, Department of Employment

REASONS FOR JUDGMENT 1 Before the Court is a motion, notice of which was filed by the Secretary, Department of Employment and Workplace Relations on 23 April 2007. The motion seeks orders that the Notice of Appeal dated 9 February 2007 as amended by Notice of Appeal (Supplementary) and Notice of Appeal (Supplementary No 2), appealing from a decision of the Administrative Appeals Tribunal, be dismissed under O 53 r 20 of the Federal Court Rules and that the applicant, Charles Pham, pay the costs of the Secretary in defending the action. 2 Before dealing with the secretary's motion, I propose to consider Mr Pham's application that I disqualify myself from further hearing the applications presently before the Court. The first ground which he has enunciated suggests a complaint arising from the Court ordering costs against him at the last directions hearing on 16 April 2007. His complaint is that the application for costs was instigated by the Court. The second ground appears to be that certain motions brought by him have not been heard by the Court. 3 The application for disqualification is refused. The basis upon which it appears to have been made is that the Court decided to award costs against Mr Pham. The mere fact that the Court comes to a decision contrary to the position put by a party does not indicate bias in the legal sense. 4 Whether the application for costs was instigated by the Court or not, the requirement for the Court is to act in accordance with the law and justice in the circumstances of the case. The Court formed the view on the last occasion that, after having given Mr Pham two opportunities to remedy his notice of appeal, justice required the costs thrown away by the respondent in coming to the Court on that occasion to be reimbursed. That is simply a decision made on the facts of the case as presented to the Court on that occasion. They do not indicate a predisposition against Mr Pham. Indeed, to the contrary, the Court has given Mr Pham, as he is unrepresented, opportunities which ordinarily would not be extended to other litigants. That is to say, he had been given two opportunities to bring his notice of appeal into conformity with the rules. 5 As to his second ground that some motions that he has filed have not been heard, the opportunity has not yet arisen for those motions to be heard. The logical starting point in this case is a consideration of the validity of the originating document. It is that matter to which the Court's attention is presently directed. To suggest that the order in which the proceeding has considered issues is demonstrative of a mind unable to see the case from an unbiased perspective is not sustainable. The application for disqualification is rejected. 6 In anticipation of the secretary making the application as foreshadowed, the Court made certain directions on 16 April 2007, including a direction that the secretary file and serve an outline of submission on Mr Pham. An outline of submissions was filed on behalf of the secretary and it included an application to amend the notice of motion by adding a new paragraph as follows: In the alternative that the application dated 9 February 2007 to appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) be dismissed pursuant to section 31A(2) of the Federal Court of Australia Act 1976 (the Federal Court Act). [original emphasis] 7 Mr Mentor, who appeared on behalf of the secretary, indicated that he had served the outline of submissions himself on 30 April 2007, by leaving it at the address for service of Mr Pham. Mr Pham told the Court that he did not receive the outline, although he had previously received other documents, including the notice of motion and the affidavit, which had been served in the same way on 24 April 2007. Mr Mentor undertook to file an affidavit of service deposing to the circumstances in which the outline was served. Upon the assumption that Mr Mentor will file such an affidavit, it establishes that the secretary served the outline in conformity with the requirement that interlocutory documents be filed at the address for service of the applicant. It is, therefore, immaterial whether Mr Pham received the outline or not. 8 Nonetheless, in the course of the proceeding, I offered Mr Pham an adjournment of one day to consider the contents of the outline. Mr Pham declined the offer of that adjournment. In these circumstances, it is appropriate that the amendment foreshadowed in the outline of submissions be allowed. 9 Order 53 r 20 of the Federal Court Rules relevantly provides that: (1) Where an applicant has not done any act required to be done by or under these Rules, or otherwise has not prosecuted his appeal with due diligence, the Court may - (a) order that the appeal shall be dismissed for want of prosecution; … 10 Section 31A(2) and (3) of the Federal Court Act provide that: … (2) The Court may give judgment for one party against another in relation to the whole or any part of the proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or a part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. … 11 The appeal is brought from a decision of the Tribunal made on 12 January 2007. The Tribunal affirmed a decision of the Social Security Appeals Tribunal which in turn affirmed the decision of a review officer of the Department of Employment and Workplace Relations. The decision was that Mr Pham's Newstart Allowance be suspended. 12 In November 2005, following a data matching exercise with the Australian Taxation Office, Centrelink received information which indicated that in the 2003/4 financial year, Mr Pham had received $5055 by way of distribution from the Pham family trust. The decision of the Tribunal centred on s 63(3)(d) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act). That section relevantly provided: (3) If the Secretary is of the opinion that a person to whom this subsection applies should: … (d) give information to the secretary; the Secretary may notify the person that he or she is required, within a specified time, to: … (h) give that information; as the case may be. 13 Section 63(5) of the Administration Act provided that if: If: (a) the Secretary notifies a person under subsection (3) of a requirement; and (b) the requirement is reasonable; and (c) the person does not comply with the requirement; then: (d) newstart allowance or special benefit is not payable to the person; … 14 The Tribunal determined that the secretary had formed the opinion under s 63(3) that Mr Pham was a person who should give information to the secretary. The secretary had notified Mr Pham that he was required to give information to the department in relation to the information received by Centrelink that Mr Pham had received moneys from the Pham family trust. The Tribunal furthermore found that the request was reasonable within the terms of s 65(5)(b). 15 The Tribunal went on to consider whether s 63(9) applied. Section 63(9) provided that the secretary may determine that a social security payment which was not payable because of s 63(5) is payable if the secretary is satisfied that the person had a reasonable excuse for not complying with the requirement under s 63(3) to provide information. The Tribunal determined that, on the facts as presented to it, Mr Pham did not have such an excuse. 16 An appeal to this Court from the Tribunal is governed by s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), which provides as follows: A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. 17 Order 53, rule 2(1) of the Federal Court Rules provides that: An appeal to the Court from a decision of the Tribunal shall be instituted by filing a notice of appeal which shall be in or substantially in the form numbered 55A in Schedule 1. 18 Then Order 53, rule 3(2) provides: The notice of appeal shall be signed by the applicant or his solicitor and shall state - … (b) the question or questions of law to be raised on the appeal; and … (d) briefly, but specifically, the grounds relied upon in support of the order sought. 19 These provisions relating to the requirements for a valid notice of appeal, have been the subject of quite significant authority. The Full Court said in Lambe v Director General of Social Services (1981) 4 ALD 362 at 363: Compliance with the provisions of this Rule of Court is essential when, as here, the appeal from the decision of the Tribunal is limited to a question or questions of law. 20 Branson and Stone JJ in Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321; [2003] FCA 232 (Birdseye) at [11], approved the observation of Gummow J in TNT Skypak International (Australia) Pty Ltd v FCT (1988) 82 ALR 175 at 178 where he said: Section 44 of the AAT Act is expressed in narrower terms than the old s 196 of the Tax Act. This provided for appeals from the Board of Review which "involved" a question of law. The result was that if some question of law was involved, the whole of the decision of the Board was open to review, not merely the question of law… This no longer will be the case with appeals brought to this Court under s 44 of the AAT Act. The existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself. Their Honours said at [18]: In our view, O 53 r3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of a particular case and the orders sought on the appeal. 21 In Ibarcena v Secretary, Department of Family and Community Services [2003] FCA 1354, Stone J said at [4] and [5]: In TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 Gummow J observed, at 178, that with respect to appeals under s 44 of the AAT Act: 'The existence of a question of law is… not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself'. More recently, two separate Full Court decisions have considered the precision with which a question of law must be stated to ground an appeal under s 44 of the AAT Act; see Birdseye v Australian Securities and Investments Commission[2003] FCAFC 232 and Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244. In order to conform to s 44(1) of the AAT Act and O 53 r 3(2) of the Federal Court Rules, it is necessary to identify a question of law. In the absence of such a question this Court's jurisdiction is not enlivened. The notice of appeal in this case states: 'THE QUESTIONS OF LAW raised on the appeal are the interpretation of the Data Matching Program (Assistance and Tax) Act 1990 (Cth), Social Security Act 1991 sections 1224C, 1075, Income Tax Assessment Act 1936 sections 51 and 54, enacted as the will of The Australian Parliament in application of its objectives to clearly establish the principles of Justice to govern all Australian Citizens.' It is clear that even if this paragraph refers to a question of law it does not formulate a question of law. At the hearing today there has been considerable discussion between me and Mr Ibarcena, who spoke for both applicants, attempting to formulate a question of law. As I explained to Mr Ibarcena, the respondent and the Court need to be able to discern from the notice of appeal the question the Court is asked to answer. Reading this notice of appeal it is not possible to do so nor was Mr Ibarcena able to identify such a question. 22 In Comcare v Etheridge (2006) 90 ALD 31; [2006] FCAFC 27 (Etheridge), Branson J, with whom Spender and Nicholson JJ agreed, said at [14]: The legislature, by creating a statutory right of appeal to a party to a proceeding before the tribunal in the narrow terms of s 44(1), disclosed an intention to limit the capacity of the court on an appeal under s 44(1) to review factual findings of the tribunal. Branson J continued at [16]: A mixed question of fact and law is not a question of law within the meaning of s 44(1) of the AAT Act. 23 Branson J then considered one of the questions of law said to be raised in that case and said at [18] and [19]: The first of the questions of law purportedly identified in each of the four appeals incorporated various separate sub‑questions. The form of the question was identical in each appeal. The opening lines of the first question in the notice of appeal filed in WAD 123 of 2005 is illustrative of their nature: the construction and operation of: a) s 9(1) of the Commonwealth Employees' Compensation Act 1930 …; b) ss 27(1) and 104 of the Compensation (Commonwealth Government Employees) Act 1971… A broad enquiry as to the construction and operation of statutory provisions is not a question of law within the meaning of s 44(1) of the AAT Act. Moreover, by inviting the Court to engage in such a broad and hypothetical inquiry the purported question of law extends beyond any controversy between the parties. It is for this reason incapable of constituting a 'matter' and thus beyond the competence of the court which has jurisdiction only in respect of matters: ss 75, 76 and 77 of the Commonwealth of Australia Constitution Act 1900 (Cth). 24 In HBF Health Funds Inc v Minister for Health and Ageing (2006) 90 ALD 255; [2006] FCAFC 34 the Full Court said at [6]: As Birdseye and Etheridge also make plain, the grounds required to be specified in the notice of appeal are not grounds of appeal; they are the grounds upon which the appellant will argue that the answers for which it contends to the questions of law entitle it to the relief which it seeks. It is not possible, as the applicant sought to do in this case, to extend the subject matter of the appeal beyond the specified questions of law by itemising, under the heading 'Grounds', a series of alleged errors (some being errors of law, some being errors of fact and some being errors of mixed law and fact) in the reasons for decision of the tribunal. 25 Finally in Brown v Repatriation Commission [2006] FCA 914, Branson J said at [7]: …The Court has no jurisdiction on such an appeal to evaluate the evidence before the Tribunal. Order 53 r 3(2) of the Federal Court Rules (and see also Form 55A) requires the notice of appeal to state separately the question or questions of law to be raised on the appeal, the order sought and the grounds relied upon in support of the order sought. This final requirement calls for a brief statement explaining why the answer to the question (or questions) of law will lead to the making of the order sought. 26 The amended notice of appeal filed by Mr Pham in this case, which is the subject of the motion, is as follows. 2. THE QUESTIONS OF LAW raised on appeal are - (specify each question of law). a. Administrative Act Section 63(5) (a), (b): whether the Secretary notified the applicant under subsection (3) of a requirement and whether the requirement is reasonable; b. Administrative Act section 5: whether a written notice was given to the applicant and whether the notice was given in a manner approved by the Secretary; c. Administrative Act s234(2): whether Secretary delegated to the CEO in writing all or any of the assumed powers; d. Administrative Act s 63 (2), (3): whether notices were sent by prepaid post; e. Evidence Act 1958: whether hearsay was admissible; Respondents' documents satisfy all the elements that make them prima facie inadmissible by the rule against hearsay; Subramaniam v Public Prosecutor [1956] 1 WLR 965; f. Human Rights and Equal Opportunity Act 1986: whether an Australian citizen of Asian descent should be deprived of basic Human Rights of the Law and Constitution of the Commonwealth of Australia; g. Racial Discrimination Act 1972: whether an Australian citizen of Asian descent should be asked to do more than he is capable of; The learned member erred in law, in failing to consider and determine the issue of: