[2017] NSWCA 17
Charan v Secretary, Department of Social Services [2016] FCA 486
Charan v Secretary, Dept of Social Services (2016) 247 FCR 422
Source
Original judgment source is linked above.
Catchwords
[2017] NSWCA 17
Charan v Secretary, Department of Social Services [2016] FCA 486
Charan v Secretary, Dept of Social Services (2016) 247 FCR 422
Judgment (3 paragraphs)
[1]
Solicitors:
Self-represented (First and Second Plaintiffs)
Mills Oakley (Defendant)
File Number(s): 2017/387550
[2]
Judgment - EX TEMPORE (REVISED)
On 13 December 2017, the plaintiffs in these proceedings filed a summons in this Court seeking orders which are expressed in the following terms:
1. Type of claim: 69 proceedings. The defendant had erred in law in holding, contrary to the Social Security (International Agreements) Act 1999 (Cth), that the plaintiffs were required to add working age residence in New Zealand to apply totalisation to claim age pension in Australia.
2. The defendant had erred in law in failing to take relevant consideration of the Social Security (International Agreements) Act 1999 (Cth) for grant of age pension and took irrelevant consideration to reject the plaintiffs' claim for age pension referred in the affidavit of Suresh Charan dated 20 November 2017.
3. The defendant had failed to give reasons or adequate reasons wherein in the agreement it is provided that the plaintiffs were required to add working age residence in New Zealand to satisfy the 10 years of qualifying age residence under s 43(1)(a) to be eligible for the grant of age pension.
4. The defendant had erred in law in considering the provisions of the Social Security (International Agreements) Amendments (Amendment of New Zealand Agreement) Regulation 2017 (Cth) which was not in force when the plaintiffs had claimed age pension on 23 March 2017.
5. The plaintiffs further rely on their claim stated in the affidavit of Suresh Charan dated 20 November 2017.
The originating process named the "Secretary, Department of Human Services" as the defendant. By an order made on 12 February 2018, the Registrar ordered that the name of the defendant be changed to "Secretary, Department of Social Services".
Before the Court today is a notice of motion filed by the defendant on 2 March 2018 seeking an order pursuant to s 6(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ("the Cross-Vesting Act") that the proceedings commenced by the plaintiffs be transferred to be heard and determined by the Federal Court of Australia. The notice of motion also seeks that the plaintiffs pay the defendant's costs of the motion. The orders are opposed. The motion is supported by an affidavit of Rohan John White, solicitor, of 2 March 2018 which was read without objection.
At the commencement of the hearing of the motion the plaintiffs, through the plaintiff Suresh Charan who addressed the Court orally, sought an adjournment for a period of seven days. The basis of that application was that the submissions filed by the defendant were said to have been served on the plaintiffs out of time, and were said to raise new issues which the plaintiffs had not had a proper opportunity to consider. That application was opposed by counsel for the defendant. Having heard the submissions made by the plaintiffs, the application was refused. The reasons for that refusal now follow.
When this matter was listed for hearing, the Registrar set a timetable for the filing and service of evidentiary and other material. That timetable required the defendant to file and serve written submissions 14 days prior to the hearing or in other words, by 5 April 2018. There is evidence before me that at 3:14pm on 5 April 2018 the defendant's solicitors forwarded an email to the plaintiffs attaching a copy of the written submissions which were to be relied upon. At 9:01am on 7 April 2018 (which I note was a Saturday) the first named plaintiff forwarded an email to the defendant's solicitors indicating that the attachment to the email could not be opened.
On 9 April 2018, being the first business day after receipt of the plaintiffs' email, the defendant's solicitors forwarded the submissions to the plaintiffs by Express Post. I infer in those circumstances that the submissions reached the plaintiffs on or about 10 April 2018. Significantly, on 17 April 2018 the plaintiffs filed a document headed "Submission in Response" of some 24 pages. It purports to respond to the submissions advanced on behalf of the defendant.
The chronology set out above demonstrates that the plaintiffs were given ample time to consider the defendant's written submissions. This is so notwithstanding the fact that as a consequence of their inability to initially access them, they received the submissions outside of the timetable set by the Registrar. The fact that the plaintiffs had sufficient time to consider those submissions is evidenced by the fact that they filed a 24 page document in response to them. It was for those reasons that I was unable to accept the plaintiff's submission that they had not had sufficient time to consider the matters which were raised by the defendant. Accordingly, the application for an adjournment was refused.
As I have indicated, the notice of motion is supported by an affidavit of the defendant's solicitor. That affidavit is part of a folder of evidentiary material which has been admitted and marked exhibit A on the notice of motion. The plaintiffs relied upon three affidavits of the first named plaintiff, Suresh Charan, in opposition to the motion. Those affidavits are dated 20 November 2017, 9 March 2018, and 15 March 2018 respectively. The plaintiffs also relied upon their response to which I referred a moment ago. Counsel for the defendant objected to each of the affidavits relied upon by the plaintiffs, both as to relevance and form. Although the affidavits are not entirely irrelevant, their form does not comply with the relevant rules of evidence and procedure, and the vast majority of their content appears to go, not to the issue that I have to decide, but to the merits of the claim which is the subject of the substantive relief which is sought. Nevertheless, noting the defendant's objection, I have had regard to the affidavit material filed by the plaintiffs.
The affidavit filed in support of the notice of motion establishes the following relevant background.
In about October 2014, each of the plaintiffs lodged an application for an age pension. Their respective applications were rejected by Centrelink, on the basis that they did not meet the requirements as to residence so as to enable a pension to be granted. When their applications were refused, the plaintiffs sought review, firstly by an authorised review officer, and then by the Social Security Appeals Tribunal. In each case, the determination of the original decision-maker was confirmed.
The plaintiffs then applied to the Administrative Appeals Tribunal for a review of the determination. On 29 September 2015, Deputy President Constance of that Tribunal affirmed the determination: Re Charan and Secretary, Department of Social Services [2015] AATA 760.
Following the decision of Deputy President Constance, the plaintiffs appealed to the Federal Court of Australia. On 11 May 2016, Flick J dismissed that appeal and ordered the plaintiffs to pay the defendant's costs: Charan v Secretary, Department of Social Services [2016] FCA 486.
Dissatisfied with Justice Flick's decision, the plaintiffs then appealed to the Full Court of the Federal Court of Australia. On 13 December 2016, that Court (Collier, Katzmann, and Farrell JJ) dismissed the appeal and ordered the plaintiffs to pay the defendants' costs: Charan v Secretary, Dept of Social Services (2016) 247 FCR 422; [2016] FCAFC 175.
Dissatisfied with the decision of the Full Court of the Federal Court of Australia, the plaintiffs sought leave to appeal to the High Court of Australia. On 2 March 2017, the application for special leave was dismissed by Nettle and Gordon JJ.
Following that dismissal, each of the plaintiffs made a further application for the age pension. By letters of 8 September 2017 (which are contained in Tab 3 of exhibit A) the plaintiffs were informed that their respective applications had been rejected. The plaintiffs then sought a review of that decision from an authorised review officer. That review was undertaken and in correspondence dated 28 September 2017 (which appears at Tab 4 of exhibit A) each of the plaintiffs was informed by the authorised review officer that the decision not to grant the age pension was correct and that the review was not successful. It was following that correspondence that the plaintiffs commenced proceedings in this Court.
The defendant's written and oral submissions took me to several legislative provisions. Having regard to those provisions, it was submitted that this Court was bound to grant the orders sought in the motion, absent special reasons for the proceedings being retained in this Court. Counsel submitted that no such reasons were established, and that there were a number of factors which tended against the proceedings being so retained. In advancing these submissions, counsel helpfully made submissions as to how the various legislative provisions interacted so as to give rise to the conclusion that the orders sought in the motion ought be made.
The plaintiffs were self-represented before me as they have been in the various proceedings to date and to which I have referred. In addition to relying upon affidavit material and their written response, Mr Suresh Charan addressed the Court orally in relation to a number of matters.
I do not wish to level any undue criticism at either of the parties. However it must be said that many of the submissions advanced in opposition to the making of the orders sought went to the merits of their respective cases against the defendant. There was a general failure to engage with the issues that I am required to determine, although two factors did emerge from the oral submissions made by Mr Charan. Firstly, it would appear that the proceedings brought by the plaintiffs seek relief pursuant to s 69 of the Supreme Court Act 1970 (NSW). Secondly, it was evident from a number of statements made by Mr Charan that the plaintiffs have instituted proceedings in this Court because they have not been successful in any other Court in which they have pursued the same issues.
As I noted a moment ago there are a number of legislative provisions which bear upon the determination of the motion. Firstly, s 4 of the Cross-Vesting Act is in the following terms:
4. Additional jurisdiction of certain courts
(1) Where:
(a) the Federal Court or the Family Court has jurisdiction with respect to a civil matter, whether that jurisdiction was or is conferred before or after the commencement of this Act; and
(b) the Supreme Court of a State or Territory would not, apart from this section, have jurisdiction with respect to that matter;
then:
(c) in the case of the Supreme Court of a State (other than the Supreme Court of the Australian Capital Territory and the Supreme Court of the Northern Territory)--that court is invested with federal jurisdiction with respect to that matter; or
(d) in the case of the Supreme Court of a Territory (including the Australian Capital Territory and the Northern Territory)--jurisdiction is conferred on that court with respect to that matter.
(2) Where:
(a) the Supreme Court of a Territory has jurisdiction with respect to a civil matter, whether that jurisdiction was or is conferred before or after the commencement of this Act; and
(b) the Federal Court, the Family Court or the Supreme Court of a State or of another Territory would not, apart from this section, have jurisdiction with respect to that matter;
jurisdiction is conferred on the court referred to in paragraph (b) with respect to that matter.
(3) Where a proceeding is transferred to the Federal Court, the Family Court or a State Family Court of a State, that court has, by virtue of this subsection, jurisdiction with respect to so many of the matters for determination in the proceeding as that court would not have apart from this subsection.
(4) This section does not apply to a matter arising under:
(a) the Conciliation and Arbitration Act 1904 ; or
(ab) the Fair Work Act 2009 ; or
(aba) the Building and Construction Industry (Improving Productivity) Act 2016 ; or
(ac) the Fair Work (Registered Organisations) Act 2009 ; or
(ad) the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 ; or
(b) the Workplace Relations Act 1996 ; or
(ba) the Native Title Act 1993 ; or
(c) section 45D, 45DA, 45DB, 45E, 45EA,46A, 155A or 155B of the Competition and Consumer Act 2010 ; or
(d) a provision of Part VI or XII of the Competition and Consumer Act 2010 so far as the provision relates to section 46A, 155A or 155B of that Act.
Section 6 of the Cross-Vesting Act is in the following terms:
6. Special federal matters: general rules
(1) If:
(a) a matter for determination in a proceeding that is pending in the Supreme Court of a State or Territory is a special federal matter; and
(b) the court does not make an order under subsection (3) in respect of the matter;
the court must transfer the proceeding in accordance with this section to the Federal Court or a court mentioned in paragraph (2)(b).
Note: This section has effect subject to section 6A (Special federal matters: Commonwealth authorities or officers acting under the laws of States).
(1A) However, the court must only transfer so much of the proceeding as is, in the opinion of the court, within the jurisdiction (including the accrued jurisdiction) of the Federal Court, or the court mentioned in paragraph (2)(b), as the case may be.
(2) If the court orders that a proceeding or part of a proceeding be transferred, the proceeding or part of the proceeding must be transferred:
(a) if the matter for determination in the proceeding is a matter mentioned in paragraph (a), (b), (c) or (e) of the definition of special federal matter in subsection 3(1)--to the Federal Court; or
(b) if the matter for determination in the proceeding is a matter mentioned in paragraph (ab) of that definition--to whichever of the Family Court, the Family Court of Western Australia or the Supreme Court of the Northern Territory, in the opinion of the court, is appropriate in the circumstances.
(3) The Supreme Court may order that the proceeding be determined by that court if it is satisfied that there are special reasons for doing so in the particular circumstances of the proceeding other than reasons relevant to the convenience of the parties.
(4) Before making an order under subsection (3), the court must be satisfied that:
(a) a written notice specifying the nature of the special federal matter has been given to the Attorney-General of the Commonwealth and the Attorney-General of the State or Territory where the proceeding is pending; and
(b) a reasonable time has elapsed since the giving of the notice for the Attorneys-General to consider whether submissions to the court should be made in relation to the proceeding.
(5) For the purposes of subsection (4), the court:
(a) may adjourn the proceeding for such time as the court thinks necessary and may make such order as to costs in relation to an adjournment as it thinks fit; and
(b) may direct a party to the proceeding to give a notice in accordance with that subsection.
(6) In considering whether there are special reasons for the purposes of subsection (3), the court must:
(a) have regard to the general rule that special federal matters should be heard by the Federal Court or a court mentioned in paragraph (2)(b), whichever is appropriate in the particular case; and
(b) take into account any submission made in relation to the proceeding by an Attorney-General mentioned in subsection (4).
(7) The Attorney-General may authorise the payment by the Commonwealth to a party of an amount in respect of costs arising out of the adjournment of a proceeding under this section, under a corresponding provision of a law of a State or under this section and under such a provision.
(8) Nothing in this section prevents the court granting urgent relief of an interlocutory nature if it is in the interests of justice to do so.
(9) Where, through inadvertence, the Supreme Court of a State or Territory determines a proceeding of the kind mentioned in subsection (1) without:
(a) the court making an order under subsection (3) that the proceeding be determined by that court; or
(b) a notice mentioned in subsection (4) being given;
nothing in this section invalidates the decision of that court.
(10) This section does not apply to an appeal that is instituted in the Full Court of the Supreme Court of a State or Territory if the court whose decision is the subject of the appeal had made an order under subsection (3), or under subsection 6(1) as in force before the commencement of the amendments of this Act made by the Law and Justice Legislation Amendment Act (No. 3) 1992 , in relation to the special federal matter.
The combined effect of those provisions is that jurisdiction is conferred on this Court to transfer proceedings to the Federal Court of Australia. In the case of a special federal matter, this Court is obliged to transfer such proceedings unless there are special reasons for not doing so.
For present purposes, the term "special federal matter" is defined in s 3 of the Cross-Vesting Act to include the following:
(c) a matter arising under the Administrative Decisions (Judicial Review) Act 1977; or
(e) a matter that is within the original jurisdiction of the Federal Court by virtue of section 39B of the Judiciary Act 1903.
Also relevant are provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). In particular, s 3 of that Act sets out a number of definitions including a definition of the term "decision to which this Act applies" which is in the following terms:
"decision to which this Act applies" means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of discretion or not and whether before or after the commencement of this definition):
(a) under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or
(b) by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment;
other than:
(c) a decision by the Governor-General; or
(d) a decision included in any of the classes of decisions set out in Schedule 1.
Note: Regulations for the purposes of section 19 can declare that decisions that are covered by this definition are not subject to judicial review under this Act.
The same section also defines the term "enactment" as follows:
"enactment" means:
(a) an Act, other than:
(i) the Commonwealth Places (Application of Laws) Act 1970; or
(ii) the Northern Territory (Self-Government) Act 1978; or
(iii) an Act or part of an Act that is not an enactment because of section 3A (certain legislation relating to the ACT); or
(b) an Ordinance of a Territory other than the Australian Capital Territory or the Northern Territory; or
(c) an instrument (including rules, regulations or by-laws) made under such an Act or under such an Ordinance, other than any such instrument that is not an enactment because of section 3A; or
(ca) an Act of a State, the Australian Capital Territory or the Northern Territory, or a part of such an Act, described in Schedule 3; or
(cb) an instrument (including rules, regulations or by-laws) made under an Act or part of an Act covered by paragraph (ca); or
(d) any other law, or a part of a law, of the Northern Territory declared by the regulations, in accordance with section 19A, to be an enactment for the purposes of this Act;
and, for the purposes of paragraph (a), (b), (c), (ca) or (cb), includes a part of an enactment.
Note: Regulations for the purposes of section 19B can amend Schedule 3 (see section 19B).
Further, s 9 of the ADJR Act is in the following terms:
Limitation of jurisdiction of State courts
(1) Notwithstanding anything contained in any Act other than this Act, a court of a State does not have jurisdiction to review:
(a) a decision to which this section applies that is made after the commencement of this Act;
(b) conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision to which this section applies;
(c) a failure to make a decision to which this section applies; or
(d) any other decision given, or any order made, by an officer of the Commonwealth or any other conduct that has been, is being, or is proposed to be, engaged in by an officer of the Commonwealth, including a decision, order or conduct given, made or engaged in, as the case may be, in the exercise of judicial power.
Note: This subsection has effect subject to the Jurisdiction of Courts (Cross-vesting) Act 1987 and to subsection 1337B(3) of the Corporations Act 2001 .
(2) In this section:
"decision to which this section applies" means:
(a) a decision that is a decision to which this Act applies; or
(b) a decision of an administrative character that is included in any of the classes of decisions set out in Schedule 1.
"review" means review by way of:
(a) the grant of an injunction;
(b) the grant of a prerogative or statutory writ (other than a writ of habeas corpus ) or the making of any order of the same nature or having the same effect as, or of a similar nature or having a similar effect to, any such writ; or
(c) the making of a declaratory order.
(4) This section does not affect:
(b) the jurisdiction conferred on the Supreme Court of a State by section 32A of the Federal Court of Australia Act 1976 ; or
(c) the jurisdiction of a court of a State in respect of any matter that is pending before it at the commencement of this Act.
In Anglo American Investments Pty Ltd v Deputy Commissioner of Taxation (2007) 347 ALR 134; [2017] NSWCA 17, Payne JA made the following observations at [68] regarding the operation of s 9 of the ADJR Act:
"[68] Section 9(1) of the ADJR Act was addressed by the Full Federal Court (Wilcox, Tamberlin and Sackville JJ) in Papazoglou v Republic of the Philippines (1997) 74 FCR 108 as follows:
...the importance of s 9 of the ADJR Act for present purposes is that it demonstrates that there is no general jurisdiction on the part of State Supreme Courts to review (in any of the ways specified in s 9(2)) decisions of an administrative character made under Commonwealth legislation. On the contrary, the Supreme Courts are excluded from any such role, regardless of whether or not the decisions are amenable to review under the ADJR Act. The exclusion of the State Supreme Courts from the field of judicial review of administrative decisions is reinforced by s 38(e) of the Judiciary Act, which makes the jurisdiction of the High Court exclusive of the jurisdiction of State courts in matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth. By contrast, the Federal Court has jurisdiction in such matters under s 39B of the Judiciary Act."
Finally, s 39B(1A) of the Judiciary Act 1903 (Cth) is in the following terms:
Original jurisdiction of Federal Court of Australia
Scope of original jurisdiction
…
(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
(a) in which the Commonwealth is seeking an injunction or a declaration; or
(b) arising under the Constitution, or involving its interpretation; or
(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.
The combined effect of these provisions is that the proceedings which have been brought by the plaintiffs in this Court constitute a "special federal matter" on one or other (or perhaps both) of two bases.
Firstly, the proceedings are a matter arising under the ADJR Act because they fall within the definition of the term "a decision to which this Act applies" in s 3 of that Act. The decision which is under challenge is one of an administrative character made pursuant to the provisions of s 135(1)(b)(i) of the Social Security (Administration) Act 1999 (Cth), and is thus is one made under an "enactment" as defined in s 3. Secondly, the proceedings fall within the original jurisdiction of the Federal Court of Australia as set out in s 39B(1A)(1) of the Judiciary Act 1903 (Cth).
As previously noted, the combined effect of ss 4 and 6 of the Cross-Vesting Act is that the proceedings must be transferred, absent special reasons for not doing so. The submissions advanced on behalf of the plaintiffs did not engage with that issue. In particular, the plaintiffs did not point to any special reason(s) why the proceedings ought not be transferred.
The merits of the plaintiffs' case are not a matter for me to determine, or indeed be at all concerned with, on the hearing of this present application. In Telstra Corporation Ltd v CXA Communications Ltd [1998] VSC 72; 146 FLR 481, Chernov J observed (at 483) that special reasons mean reasons which are peculiar to the case, and not general reasons of convenience. His Honour went on to observe that in order for reasons to be "special", the circumstances of the case must be such as to take it out of the mainstream of the legislative intention that such cases be heard in the Federal Court of Australia. His Honour proffered, as an example, a circumstance in which, having regard to the timing of an application for transfer and the prevailing context, it would be unjust to have the proceedings transferred. However, his Honour was at pains to emphasise that the existence or otherwise of special reasons was dependent, in large measure, upon to the context of the proceedings themselves.
I accept the submission of counsel for the defendant that there is no part of the present proceedings which are not within the jurisdiction of the Federal Court of Australia. Accordingly, there would be no necessity to separate and transfer one aspect of the matter from the other, and thus have the proceedings fragmented, with part of them proceeding in this Court and part of them in the Federal Court of Australia. Their nature is such that they may be transferred in their entirety.
I have noted the statutory presumption contained in s 6(1) and (2)(a) of the Cross-Vesting Act that special federal matters are to be heard in the Federal Court. It is also relevant, as counsel for the defendant pointed out, that these proceedings are at an early stage. A transfer can be made without any disruption to the proceedings.
There is no doubt that the decisions of which review is sought were made under Commonwealth legislation. They are subject to review under the ADJR Act. Those factors alone make it apparent that the most appropriate venue for the proceedings is the Federal Court of Australia.
In all of those circumstances I am satisfied that the orders sought should be made. I emphasise that in reaching that view, nothing has been put before me on the part of the plaintiffs by way of special reasons which would justify the matter being retained in this Court.
Accordingly, I make the following orders:
1. Pursuant to s 6(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), these proceedings are transferred to be heard and determined by the Federal Court of Australia.
2. The plaintiffs are to pay the defendant's costs of the motion, as agreed or assessed.
[3]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 03 May 2018
Parties
Applicant/Plaintiff:
Suresh Charan & Anuradha Charan
Respondent/Defendant:
Secretary, Department of Social Services
Legislation Cited (7)
Social Security (International Agreements) Amendments (Amendment of New Zealand Agreement) Regulation 2017(Cth)