Insofar as the same may be necessary, the Court notes a revised chronology of the respondent already in Part C of the appeal book and dispenses with the need for the separate filing and service of the revised chronology.
The affidavit of the appellant dated 3 September 2024 and described as "Appendix 5" be treated as part of appeal record.
The appeal be dismissed.
The appellant pay the respondent's costs in a lump sum to be fixed by a registrar, if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)
LOGAN J:
The present appeal occurs against a broad substratum of circumstances concerning the appellant which can only excite sympathy in terms of life's events as she has encountered them. By that, I mean that, in terms of material before the administrative decision-makers in this case, there was material which suggested that the appellant had been truly a victim of domestic violence.
It is necessary, however, to appreciate that the Court's role at present is to exercise appellate jurisdiction in respect of a decision made in its original jurisdiction upon a judicial review application brought by the appellant: see Singh v Minister for Government Services [2024] FCA 368.
That proceeding was initiated by an originating application to which was annexed a statement of claim. Both in the original jurisdiction and before us, the appellant acted on her own behalf. In the original jurisdiction, that presented the primary judge with the need to do justice both to the appellant, as then applicant, as well as the respondent she had named, while at the same time taking into account the limitations to which the appellant was subject as someone acting on her own behalf. There is no separate jurisdiction in respect of litigants in person and there are no separate rules of court. It is just that in seeking to exercise or identify jurisdiction and in hearing a case, it is often necessary to take an understanding view of what an applicant is truly trying to agitate. It is quite apparent from the reasons for judgment of the learned primary judge that her Honour went to considerable lengths to distil from the statement of claim which had been filed by the appellant nine grounds of review known to law. Further, her Honour proceeded on the basis that the appellant had invoked a jurisdiction known to law.
The administrative decision sought to be challenged was said to be under what was described as a "non-statutory scheme" to which I shall make further reference shortly. The primary judge proceeded on the basis that, even assuming that the administrative decision was made under such a scheme, it was amenable to judicial review either in the High Court under the jurisdiction conferred by s 75(v) of the Constitution or, as this Court had held in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 23, under a materially equivalent jurisdiction conferred by s 39B of the Judiciary Act 1903 (Cth).
For the purposes of the appeal, although the Minister for Government Services (Minister) would wish to reserve a position, no point was taken as to an absence of judicial review jurisdiction as the learned primary judge apprehended it. It is not, therefore, necessary to delve further into the nature and extent of that jurisdiction.
It is, though, in my view, desirable that the description adopted by the Minister, "non-statutory scheme", not pass unnoticed. As was accepted, in my view correctly, by counsel for the Minister, there is at least an inaccuracy in that description in the sense that it is not, and has not been, from the moment of federation lawfully possible for a payment to be made out of the consolidated revenue of the Commonwealth without an appropriation by Act of Parliament: see s 83 of the Constitution.
Section 83 was hardly an Antipodean idiosyncrasy. At least since the aftermath of the English Civil War and as part of our constitutional heritage, it has been regarded as not constitutionally possible for the executive to tax and appropriate by royal decree. It is not necessary, though, to pass further as to the foundation in statute law for the scheme: see, for further discussion, Oscar Roos and Yee-Fui Ng, 'Act of Grace Payments and the Constitution' (2024) 46(1) Sydney Law Review 55. It is enough to assume, as occurred in the original jurisdiction, that the decision to pay moneys as appropriated was made pursuant to what is termed the Scheme for Compensation for Detriment caused by Defective Administration (Scheme).
The appellant claimed $8,888,800 by way of compensation under that scheme in respect of alleged defective administration by an administrative agency of the Commonwealth, Services Australia.
As the primary judge recorded, in response to a question, "Why do you think you are entitled to compensation from Services Australia?", the appellant stated that a COVID-19 crisis payment had been rejected unreasonably due to negligence and maladministration, that funds that were meant for her as a victim of harm and for injuries she had suffered had been given to someone else by a government agency, and that crisis payments due to a national health emergency were payable under the Social Security Act 1991 (Cth) (Social Security Act) to persons who qualified for a social security pension or benefit. The learned primary judge also recited, at [2]-[8] in her reasons for judgment, the guidance offered in respect of the making of decisions concerning such a compensation claim as set in the Department of Finance's Resource Management Guide No. 409. It is not necessary again to set out those guidelines.
Her Honour also recorded further detail concerning the foundation for the COVID-19 crisis payment as found in the Social Security Act: see [11]-[18]. Once again, it is not necessary, in my view, to refer to that description in detail for the purposes of resolving the appeal.
The learned primary judge dealt with, one by one, each of the grounds of review which she had distilled from the appellant's statement of claim.
The notice of appeal by which the appellant seeks to challenge the resultant order of dismissal is noteworthy for its generality in terms of a basis of challenge. Put another way, it is noteworthy for not engaging with the error which was said to attend one or more of the ways in which the learned primary judge dealt with the nine grounds of review.
In short, save for an allegation of a denial of procedural fairness, the grounds of appeal are devoid of meaningful content. That meaningful content was not, with respect, in my view, supplied either in the appellant's written or oral submissions. Instead, the case was approached as if it were an opportunity both to raise again issues on the merits of the compensation claim, or generalised complaints about public administration, both in this country and in New Zealand. The difficulty faced by the appellant, both in the original jurisdiction and even more so on appeal, was that each jurisdiction which in turn she invoked did not entail our embarking upon a decision on the merits or otherwise of the compensation claim.
It is necessary to remember, in relation to the jurisdiction exercised by the learned primary judge, the observations made by Sir Gerard Brennan in Attorney-General (New South Wales) v Quin (1990) 170 CLR 1, at 35-36, as to the limited role of a court exercising a judicial review jurisdiction. The merits of an administrative decision are for an administrator. Whether or not, in making a decision on the merits, a decision has been made according to law is a question for the judicial branch.
In my view, the grounds of review were disposed of correctly by the learned primary judge for the very reasons given by the learned primary judge. I do not consider it either necessary or desirable in the face of a generalised notice of appeal to do other than record that.
As to the allegation of a denial of procedural fairness by the learned primary judge, the appellant's difficulty is that the allegation is one which requires proof by her by admissible evidence. Insofar as a denial of procedural fairness might be grounded in bias, either apprehended or otherwise, there is not a scintilla of evidence before us which would, in my view, support a conclusion even of apprehended bias, and most certainly not actual bias. Often, litigants in person use a term "bias" as an emphatic way of expressing disagreement. Insofar as beyond that the appellant alleged that there was something in the conduct of the hearing that amounted to an apprehension of bias, it was for her to prove that.
As it is, on the face of things, we have reasons for judgment which are noteworthy for their clinical disposition of grounds of review, which record the offering of a hearing on two dates and an outcome in terms of dismissal. One does not find an apprehension of bias in such evidence.
Neither does one find, in my view, a failure to extend an opportunity to be heard. Truly, if there were such a failure, it was for the appellant to prove that before us by evidence. Statements from the bar table do not amount to evidence.
The end result then is a case where it was never possible for the primary judge to make a decision on the merits of the compensation claim, only to adjudicate grounds of review to determine whether or not the decision made was one attended with jurisdictional error. For the reasons which the primary judge gave, with which I wholeheartedly agree, there was no such error.
That does not mean that one does not have sympathy for the appellant, but that sympathy cannot resonate into a departure from an orthodox approach to an exercise of appellate jurisdiction in respect of an orthodox outcome in the exercise of an original jurisdiction.
The appellant made a number of references to s 13 of the Social Security Administration Act 1999 (Cth) in the course of her submissions. The short point, in my view, about that provision is that an absence of adherence to that provision did not feature as a basis of complaint in the statement of claim annexed to the originating application in this court, nor for that matter was it a feature of the compensation claim. That is not to say that there may not have been scope for considering s 13 of that Act in the course of administrative decision-making, only that there was no error on the part of the primary judge in not referring to a provision which had not underpinned a ground of review.
For these reasons, I would dismiss the appeal.
After reasons for judgment in respect of an order dismissing the appal had been delivered, the Minister made, and the applicant opposed, an application for costs.
The appellant resisted the making of such an order on the basis of particular impecuniosity. She highlighted the present circumstance of her reliance on disability support and other income maintenance assistance, and also extant proceedings in respect of compensation for an injury. Even accepting, as I do respectfully, that there is such a foundation in fact for the submission, it is not one which I consider persuasive as to a departure from the general way in which an admittedly unfettered discretion in respect of the power to order costs is exercised. The ordinary way is for the costs to follow the event, here the event being the dismissal of the appeal.
It was always a matter for the value judgement of the Minister as to whether, against what is known within the Minister's department and elsewhere in the records of the Commonwealth concerning the appellant, to seek or not to seek an order for costs. Having sought an order for costs, the Minister is entitled to the Court considering how to exercise that discretion in the circumstances of a given case, but nonetheless against an expectation that, ordinarily, costs will follow the event. All that the appellant's impecuniosity would mean is that whatever amount comes to be determined to be the amount of costs may not ever be recovered by the Commonwealth. But that is no reason, in my view, not to make an order for costs in the circumstances of this case.
I would, therefore, order that the appellant pay the respondent's costs in a lump sum to be fixed by a registrar, if not agreed.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.
[2]
Associate:
Dated: 11 December 2024
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)
CHARLESWORTH J:
I generally agree with the reasons of Logan J, subject to some minor qualification and some elaboration.
I prefer to express no view on matters that may affect the validity of the compensation scheme. Questions of validity were not raised at first instance and may involve matters arising under the Constitution or involving its interpretation. I proceed on the basis that the reference in the reasons of the primary judge to a non-statutory scheme is a reference to the absence of a statute that expressly confers or conditions a power to decide whether or not compensation should be awarded.
The submissions of the appellant on this appeal did not grapple with the various bases upon which the primary judge rejected each of the grounds of judicial review. As Logan J has observed, the submissions on the appeal were largely an attempt to persuade this Full Court that different administrative decisions ought to have been made on the merits. The role of this Court is confined to the detection of appealable error by the primary judge of the specific kind alleged in the notice of appeal. I respectfully agree with his Honour's observation that those grounds are stated at a high level of generality and that reasons for judgment of this Full Court may also be expressed at a similar level of generality.
In relation to the alleged breach of procedural fairness and apprehended bias on the part of the primary judge, the onus was on the appellant to adduce evidence to establish those grounds of appeal. From the bar table, the appellant asserted that she did not have an opportunity to complete her submissions in support of her grounds for judicial review, and that she subjectively believed that when the hearing at first instance was adjourned there would be a further opportunity to supplement the oral submissions she had made. However, the appellant did not adduce evidence to establish how the hearing at first instance transpired so as to demonstrate that she was deprived of a reasonable opportunity to present her case.
More broadly, the onus was on the appellant to establish that the challenged decision was affected by jurisdictional error, and the reasons of the primary judge were to the effect that the onus had not been discharged. The primary judge correctly and fairly distilled the arguments raised in the appellant's statement of claim into nine grounds of review. There was no suggestion that those arguments were misunderstood.
Some of the grounds of review depended upon proof of what transpired between the appellant and officers employed within Centrelink, or perhaps other agencies. Judicial review grounds 2, 3 and 5 are illustrative.
Ground 2 alleged that the relevant officer failed to take into account relevant considerations by not considering evidence of, among other things, the content of telephone calls with Centrelink officers. That ground went to the issue of whether the Centrelink officers knew or ought to have known that the appellant's physical and mental injuries were such that she was unable to lodge a claim for benefits online. The primary judge concluded that those grounds were not established on the evidence, including because there was no evidence that the appellant raised her inability to lodge online claims within specified timeframes in light of her injuries. It has not been shown that that finding is affected by appealable error. On appeal, the appellant pointed to evidence that was capable of supporting a finding that she had, indeed, made multiple phone calls, but that evidence did not assist her to establish that there was evidence before the primary judge about the content of what was said in them.
Similarly, in support of ground 3 at first instance, the appellant asserted that she had been told by a Centrelink officer that telephone contact with the agency was sufficient, and that she did not need to lodge an online claim in respect of the underlying benefits. The primary judge concluded that that allegation of fact had not been established on the evidence. No error is apparent in that conclusion having regard to the material that was adduced. We were not taken to evidence that could support any alternative finding.
In relation to ground 5, by way of further illustration, the appellant argued that an authorised officer of Services Australia had erred in not having regard to the lack of assistance from Australian agencies in relation to the appellant's claim for compensation for injuries and harm that she had sustained in New Zealand. Submissions on this appeal in relation to that ground went to the factual circumstance of the harm that was, in fact, suffered and otherwise amounted to an assertion that there should be a scheme by which an Australian agency should assist a person in the appellant's position to advance claims for compensation in another country. The appellant did not grapple with the finding of the primary judge that Services Australia in this particular case did not have any legal capacity or ability to assist her in relation to her particular compensation claims.
Those grounds are raised by way of illustration so as to explain to the appellant why her arguments in relation to them should also fail on this appeal.
I otherwise join in the reasons given by Logan J in relation to those grounds that are not specifically mentioned in these reasons. The appropriate order is that the appeal should be dismissed.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.
[3]
Associate:
Dated: 11 December 2024
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)
DOWLING J:
I agree with the reasons of Logan J. I also agree with the additional reasons of Charlesworth J. I, like Logan and Charlesworth JJ, conclude that the primary judge comprehensively dealt with the matters raised before her and I see no appealable error in the reasons given by the primary judge.
On the issue raised by the description given by the primary judge to the Scheme for Compensation for Detriment Caused by Defective Administration as a "non-statutory scheme", I do not consider it necessary to comment on that matter.
I would dismiss the appeal and agree with the orders made by Logan and Charlesworth JJ.
I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Dowling .