Pickering v Chief Executive Officer of Centrelink

9 There is attached to Mr Panton's affidavit, a memorandum of his recollection of the conversation on the day in question with the applicant. The memorandum states: 'Mr Pickering asked me how he'd go getting an advance for a bus ticket to get to the job. I can't recall whether this was a Monday or a Tuesday, but I do recall telling Mr Pickering that he had deductions coming out of his fortnightly payments for rent and other things and since he had only just been paid for the previous fortnight, it was impossible to arrange an advance, until these deductions were covered; he agreed.' 10 Mr Panton also says that he told the applicant that he should see if he could obtain assistance elsewhere and that he should come back later in the afternoon and in the interval Mr Panton would see whether there were other ways in which he could assist the applicant and that he gave the applicant his phone number. 11 Counsel for the respondent has submitted that Mr Panton's conduct in dealing with the applicant in March 2005 amounted to no more than the giving of advice and that no decision to refuse to make the payment of the bus fare was made. There was, therefore, no decision capable of review. 12 In his Decision Statement, the authorised review officer, Mr Gentelli, has adopted the same reasons as relied upon by Mr Panton to explain why the applicant was denied the bus fare payment. Mr Gentelli says in the document: 'In your case that meant that the system would not allow an EBT until you had accrued an entitlement of more than $155.40. That would not occur until 6 days in to your payment cycle and there would not have been sufficient accrual to cover a bus fare to Albany until 7 days in your payment cycle. For the purposes of this review however the simple fact is that with the deductions requested by yourself the system would not have allowed the issuing of an EBT to you on the Tuesday when you requested it.' 13 However, in that document, Mr Gentelli has characterised the conduct of Mr Panton in refusing to make the payment to the applicant on those grounds as the making of a 'decision'; and Mr Gentelli has relied upon the reasons referred to above as justifying the 'decision' made by Mr Panton. 14 So there is a possible conflict between Mr Panton and Mr Gentelli as to what occurred when Mr Panton dealt with the applicant on the relevant day in March 2005. I say that it is a 'possible conflict' because it is also possible that the apparent differences can be reconciled once both persons have given evidence. I would add that the applicant told me today that he disputes the version of events described above by Mr Panton. 15 There is, therefore, a factual dispute as to what occurred on the relevant day, and there is a dispute as to whether Mr Panton made a decision for the purposes of supporting a possible application for review under the ADJR Act and s 39B(1) of the Judiciary Act. It follows that I am satisfied that there is a factual dispute which needs to be resolved at trial. I cannot, therefore, accept the respondent's submissions that the application should be dismissed on the basis that there is no tenable case that Mr Panton made a decision which is potentially reviewable under the ADJR Act or s 39B(1) of the Judiciary Act. 16 In any event, s 39B(1A)(c) of the Judiciary Act, arguably provides a further jurisdictional basis upon which the Court may determine the controversy between the parties. The subsection provides that: 'The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: … (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.' 17 This subsection was considered in the case of Boys v The Australian Securities Commission (1997) 24 ACSR 1, where Carr J observed at 12: 'In my view, the matter or controversy before the court is whether the Commission has lawfully exercised its powers and is proposing lawfully to exercise its powers under the ASC Act. The very subject matter of that controversy owes its existence to the ASC Act. The whole case revolves around and depends upon the proper construction of the ASC Act and whether, on the construction advanced by the applicants, the respondents are to be restrained from engaging in further unlawful conduct.' 18 In my view, the controversy before the Court is one which can arguably be characterised as arising under the Social Security (Administration) Act 1999 (Cth) ('the Act') within the meaning of s 39B(1A)(c) of the Judiciary Act. This is because the controversy arises in the context of whether, on the proper construction of the Act, Mr Panton, whilst acting in his capacity as an officer under the Act, acted lawfully in advising the applicant as to the effect of the Act, and in declining to make an advance payment to the applicant in response to the applicant's request for such payment. A major question which arises in this context is whether on the proper construction of the Act, Mr Panton was correct in advising the applicant that he was not able to make the payment because the deductions which were coming out of his fortnightly payments for rent and other things had only just been paid the previous fortnight, and it was impossible to arrange an advance until these deductions were covered; and whether it was lawful, therefore, to decline to make the payment on that basis when requested to do so by the applicant. 19 In my view, it is arguable that this controversy over the proper construction of the Act would afford a sufficient basis upon which a declaration might be sought as to the proper construction of the Act and whether Mr Panton acted lawfully in making the statements that he did to the applicant and in declining to make the payment to the applicant. It is also arguable that the applicant could, as part of the accrued jurisdiction, bring a claim for damages in negligence. 20 In light of the foregoing, I also am unable to accept the respondent's submission that the application should be summarily dismissed because any relief that might otherwise be available to the applicant would be withheld on the grounds that it would be futile to grant that relief. 21 It follows that I am satisfied that there are potential causes of action available to the applicant which could arguably be brought within the jurisdiction of this Court. It also follows that I dismiss the respondent's application for summary dismissal of the applicant's application. I certify that the preceding twenty‑one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Counsel for the Applicant: Applicant appeared in person

Solicitor for the Respondent: Australian Government Solicitor