Tait v Harvey [2003] FCA 439 | Case summary

Federal Court of Australia|2003-05-09|Before: Cooper J

the proceedings 1 On 31 July 2001, the applicant, Mr Tait, filed an application for orders of review in the Federal Magistrates Court at Townsville, Queensland. Those proceedings were transferred to this Court by Federal Magistrate Coker on 9 September 2001. As the applicant was not legally represented, he prepared and prosecuted his application personally. 2 The nature of the application is contained in paragraphs 1 to 7 therein, which state: "1. Application to review the purported decisions of: (i) The Registrar of the Social Security Appeals Tribunal Rob Harvey [herein the first respondent] purportedly made on 15 June 2001, 15 June 2001, and, 6 July 2001, to refuse to accept the applications referenced B22406, B22461, and, B22557 respectively, which were previously sent by William Billy Peter Tait [herein the applicant] to be filed in the Social Security Appeals Tribunal [herein the SSAT]; (ii) the Office of Centrelink [herein the second respondent] purportedly made on: (a) 28 May 2001 - to absolutely withhold the applicant's Newstart payment of approximately $357; (b) 11 June 2001 - to withhold the applicant's Newstart payment of approximately $357 for a period of 24 - 48 hours; (c) 29 June 2001 - to, apply a purported activity test breach penalty to reduce or cancel the applicant's Newstart payments for a period of time, and, otherwise unlawfully reduce the applicant's Newstart payments due to be paid on 9 July 2001, 23 July 2001 and from payday 7 July 2001; (d) 6 July 2001 - to unlawfully suspend the applicant's Newstart allowance and apply an unlawful breach in order to reduce the applicant's rate of Newstart by 18% for 26 weeks beginning on 6 July 2001; (e) 9 July 2001 - to unlawfully reduce the applicant's Newstart allowance payments on 10 July 2001 and from payday 24 July 2001; (f) 9 July 2001 - to refuse to allow the applicant relief [for the purposes of giving the applicant a fair opportunity (and therefore a fair hearing) to exhaust all avenues of review of the purported decisions to make the unlawful deductions] from unlawful Newstart reductions; (g) on or about; 28 May 2001; 11 and 25 June 2001; and; 9 and 23 July 2001; to deduct so called Lump Sum Advance Repayments of approximately $38 (ie. except on 9 July when approximately $27 only was deducted) from the applicant's Newstart payments; (h) on 18 July 2001 to allegedly suspend the applicants Newstart allowance and reduce his Newstart payments; (i) 20 July 2001 - to apply a purported activity test breach penalty to reduce or cancel the applicant's Newstart payments for a period of time, and, otherwise unlawfully reduce the applicant's Newstart payments due to be paid on 24 July 2001, 7 August 2001 and from payday 21 August 2001; and; (j) 25 July 2001 to refuse to allow the applicant relief by lifting or not imposing the alleged breaches referred to above; and; (iii) The Administrative Appeals Tribunal [herein the AAT] constituted by Hon Senior Member K L Beddoe (herein the AAT, as so constituted shall be referred to as the third respondent), purportedly made on 13 July 2001, to direct the Registrar of that tribunal that; (a) the Tribunal has no jurisdiction in these matters; and (b) the applications for review be removed from the list of matters awaiting hearing in the Tribunal. 2. Application to review the failures of the first respondent to refer the applicant's applications - referenced by that respondent with numbers B22406, B22461, and, B22557, to the SSAT for that tribunal to determine whether or not it has the jurisdiction to conduct a review of the decisions referred to in those applications. 3. Application to review the conduct of the first respondent - engaged in on or before 13 July 2001, ie. to discuss and apparently make arrangements with the second respondent in relation to the timing of the second respondent's response to the applicant's requests made to the second respondent for Authorised Review Officers to conduct reviews of the second respondent's purported decisions. 4. Application to review the failure of the third respondent to - at the appropriate time - make an order, under subsection (5) of the Administrative Appeals Tribunal Act 1975, and, in accordance with the time prescribed by section 141 of the Social Security (Administration) Act 1999 [herein referred to as the SS(A) Act], to deem that: (a) the first respondent has made a decision to refer the applicant's applications to the SSAT for it to decide whether or not it has jurisdiction to conduct reviews in relation to those applications; and, or, or; (b) the SSAT has: (i) made decisions; such as are referred to in clause (b) of subsection (1) and clause (a) of subsection (2), of section 179 of the SS (A) Act; upon the applicant's applications; to affirm the purported decisions of Centrelink; and; (ii) the circumstances, the golden rule may be applied to section 181 of the SS(A) Act to avoid absurdity and repugnance with section 141, in that, it may be deemed that section 181 is to be read as follows: 'The AAT may only review a decision: that has been reviewed by the SSAT; or; that the AAT, pursuant to subsection (5) of section 25 of the Administrative Appeals Tribunal Act 1975, deems the SSAT has affirmed, varied or set aside'. 5. Application to review the failure of the Deputy Registrar of the AAT Deborah Harris [herein the fourth respondent] to; respond to the applicant's, written requests made on 20 and 23 July 2001, and, oral requests made on 24 July 2001; and; thereby; refer the applicant's submission dated 20 July 2001 - and related material relating to the question of whether or not the AAT at that time had jurisdiction to hear the applicant's applications made to it and allocated file numbers Q2001/576 and Q2001/590, to the AAT for it to make a determination. 6. Application to review the conduct of the fourth respondent to seek - in the applicant's absence - directions from the Hon Senior Member of the AAT K L Beddoe [herein the fifth respondent] regarding the jurisdiction of the AAT to hear the applicant's submission dated 20 July 2001. 7. Application to review the conduct of the fifth respondent to direct the fourth respondent - in the applicant's absence - that the applicant's submission dated 20 July 2001 and related material are not to be put to the Administrative Appeals Tribunal [herein the AAT] for a hearing - as requested by the applicant - on 24 July 2001, or, for that matter, as soon thereafter as would have been practicable - in the circumstances." 3 The grounds of the application are stated as being: "(a) There have been breaches of the requirements for natural justice (b) Persons who have purported to make decisions did not have jurisdiction to make such decisions; (c) Decisions have purportedly been made which were not authorised by the enactments under which it has been purported that such decisions were made; (d) The making of decisions purportedly made were improper exercises of the powers conferred by the enactments under which it is purported such decisions were made; (e) Decisions purportedly made involved an error of law; (f) There is no evidence or other material to justify the making of decisions purportedly made; (g) There has been breaches of statutory requirements in; the failures to make decisions; and; the making of purported decisions; (h) apparent or actual biases have arisen; (i) jurisdictional errors have arisen; (j) irrelevant considerations have been taken into account, and, relevant considerations have not been taken into account; (k) power has purportedly been exercised, for purposes other than the purposes for which such powers are conferred; (l) there has been exercises of discretionary powers at the direction or behest of another person; (m) there has been exercises of discretionary powers in accordance with rules or policies without regards to the merits of the particular cases involved; (n) exercises of power, failures to make decisions, and the making of decisions, have been so unreasonable that no reasonable repository of the powers involved could reasonably have exercised such power, failed to make decisions, or, made such decisions; (o) there have been exercises of discretion in bad faith; (p) there have been abuses of power; (q) there have been breaches of basic human rights and attempts to deliver what amounts to cruel and inhumane treatment; (r) decisions have been made, or failures to make decisions have occurred, at the direction or behest of another person; (s) it seems that in the making of decisions, conduct, and, failures to make decisions, there have been attempts to design events so as to frustrate and annoy the applicant in his attempts to find justice; (t) there have been failures to observe duties of care; (u) there have been breaches of fiduciary duties; (v) decisions purportedly made were otherwise contrary to law. Particulars of bad faith or apparent bias Amongst other things it appears that: (i) the second respondent's intentions have been deliberately designed from the outset so as to frustrate and annoy the applicant in his attempts to find justice - ie. it seems those officers of Centrelink have deliberately failed to act on the applicant's requests for reasons and reviews; (ii) the first respondent has conspired with officer's [sic] of the second respondent with the intention of organising the timing of the second respondent's responses so as to - albeit on the basis of a false premise - allow the first respondent to keep the applicant from seeking justice in a hearing before the SSAT; and; (iii) from the outset it has been the second respondent's intention to inflict what amounts to be no less than cruel and inhumane treatment upon the applicant by; abusing its resources over a period of time to establish a culture of oppression that utilises, the plethora of review mechanisms apparently available to persons aggrieved by its decisions, and, improper relationships between it and the first respondent - or like persons, so as to drain the resources (and, presumably, subsequent to that, the moral) of such aggrieved persons - who pursue there [sic] rights through the review process in the genuine expectation that justice will be thereby provided not knowing that the process is rigged so as to improperly ensure that such persons may never be given relief or are at least subjected to the negative effects of unlawful decisions for longer period [sic] of time than the relevant statutory provisions would allow in any event; deliberately making unlawful decisions against the applicant and others in similar positions; and; in attempts to unlawfully coerce the applicant and others for some improper ulterior purpose, purporting, through its office, and, its cohorts - at the office of the SSAT, that, such aggrieved persons should, go back to the second respondent's office and make an appointment to speak with them and come to some arrangements - despite its continuos [sic] failure to adhere to its fiduciary duty and copious attempts to abuse its powers, or, seek to have a political figure make representations on their behalf in the litigation process. (iv) Apparently unlawful and improper actions have been taken, allegedly under valid powers, seemingly for unknown ulterior purposes, and, in an attempt to coerce the applicant into performing actions, signing unlawful contracts or agreements, and, complying with requests, that, there is in fact no real legal - nor any reasonable - compulsion for the applicant to so take, sign or comply with." 4 The applicant sought orders pursuant to s 15 and s 16 of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") and generally, being the orders sought in paragraphs (i) to (xxiv) inclusive of his application. 5 On 4 October 2001, Dowsett J ordered that the Commonwealth of Australia be joined as a sixth respondent to the proceedings. The first, third, fourth and fifth respondents have made an appearance submitting to any order of the Court, save as to costs. Accordingly, the matter was litigated between the applicant and the second and sixth respondents ("the respondents"). 6 The application was supported by an affidavit of the applicant filed on 31 July 2001. 7 The applicant filed further affidavits on the following dates in support of this application: (a) 14 August 2001; (b) 14 August 2001; (c) 3 September 2001; (d) 28 September 2001; (e) 18 December 2001; (f) 31 January 2002; (g) 8 February 2002; and (h) 15 July 2002. 8 The respondents have objected to the applicant reading in support of his application all affidavit material filed after 3 September 2001 on the ground of irrelevancy. The affidavits objected to are voluminous and relate to decisions and conduct complained of which arose after the matters the subject of the application filed on 31 July 2001. 9 The applicant appeared at the hearing of the application in Townsville. On that occasion the applicant stated that he sought judicial review and consequent relief in respect of each and every decision, failure to act, or course of conduct, whenever occurring which can be identified in any of the affidavits filed by him. He also made submissions in support of his application. Since the conclusion of the hearing he has made further substantial written submissions which on their face appear to raise new matters. The respondents have taken objection to those submissions on the same basis as that raised with respect to the affidavits. 10 The applicant submitted that each of the matters complained of in the affidavits and submissions arose out of "a continuing relationship" between himself and the second respondent ("Centrelink"). On the applicant's submission, because such a relationship existed, he was entitled, after the date of filing the application, to update and have judicial review of matters arising in that continuing relationship. 11 The submission of the applicant is misconceived. There is no power to allow amendment of the application to seek judicial review of decisions or conduct arising after the filing of the original application: Park Oh Ho v Minister for Immigration and Ethnic Affairs (1987) 14 FCR 274 at 277 - 278; Minister for Community Services and Health v Dibo Pty Ltd (1992) 38 FCR 292 (FC) at 293 - 294; Vamuta Pty Ltd v Sogo Co Ltd (1996) 68 FCR 151 at 154 - 155; Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [2001] FCA 508 at [9]; QAAE of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1213 at [50]. 12 Further, even if the Court was empowered to allow an amendment, this discretion would not be exercised in a case such as the present. The Federal Court of Australia is not a general supervisor of a dynamic relationship between a particular recipient of social security benefits and Centrelink. As Spender J said, in another context, in Kooma Aboriginal Corp for Land v Goolburri Regional Council of the Aboriginal and Torres Strait Islander Commission [1999] FCA 82 at [43]: "It is clearly not either convenient or appropriate for every decision, every issue in what is obviously a very acrimonious and unhappy relationship to be the subject of consideration by the Federal Court." 13 It follows that decisions made after 31 July 2001 or conduct occurring after that date are irrelevant to the issues arising under the application as filed. Accordingly, the affidavit material and the submissions made will, to that extent, be rejected and not considered by the Court. 14 A consideration of the decisions and conduct identified in the application, the grounds relied upon, and, the relief claimed under the twenty-four paragraphs of the prayer for relief, indicates a lack of precision in the case advanced by the applicant and a failure to distinguish between a decision of an administrative character within the meaning of the ADJR Act and the steps taken in the process of making, or failing to make, such a decision. 15 For the purposes of this application, it is convenient to deal with the case advanced against each of the respondents in turn and to commence with the background which gave rise to the application.

background 16 At all material times the applicant was a recipient of Newstart Allowance payable under Part 2.12 of the Social Security Act 1991 (Cth). On 25 January 2001, he received an allowance advance of $500. On 29 May 2001, an amount of $300 was transferred to the applicant by electronic benefit transfer. On 30 May 2001, an amount of $19.30 was credited to his bank account and an amount of $38.50 was withheld and set off against the sum paid by way of advance in January 2001. In total, $357.80 was paid to the applicant. 17 By facsimile on 4 June 2001 and by letter on 6 June 2001, the applicant lodged an appeal with the Social Security Appeals Tribunal ("the SSAT"). That appeal was against an alleged decision of Centrelink not to pay to him his fortnightly allowance in due course, and Centrelink's continuing failure to pay the allowance after the applicant lodged an "application for payment" form on 28 May 2001. At the time the appeal was lodged with the SSAT, the alleged decisions (which were the subject of the appeal) had not been reviewed by an authorised review officer as required by s 135 of the Social Security (Administration) Act 1999 (Cth) ("the SSA Act"). The appeal was given the number B22406 by the SSAT. The materials filed by the applicant and the respondents disclose that the Newstart benefit in respect of which the appeal was filed was that which was paid on 29 and 30 May 2001 as indicated above. 18 On 13 June 2001, the applicant received $357.80 Newstart Allowance being $319.30 paid to his bank account and $38.50 withheld and set-off against the lump sum advance of January 2001. 19 On 15 June 2001, the applicant lodged a further appeal with the SSAT. The appeal was against an alleged failure to make the Newstart payment on 11 June 2003 and the alleged failure to provide a replacement payment on 12 June 2001. At the time the appeal was lodged, the decisions, which were the subject of the appeal, had not been reviewed by an authorised review officer pursuant to s 135 of the SSA Act. The appeal was given the number B22461 by the SSAT. The Newstart Allowance the subject of the appeal was that paid to the applicant on 13 June 2001. 20 By letters dated 15 June 2001, the first respondent advised the applicant that the SSAT had no power to accept or hear the two appeals until the decisions appealed against had been reviewed by an authorised review officer of Centrelink. 21 On 29 June 2001, Centrelink made a decision to impose an activity test breach on the applicant for failing to attend a "Work for the Dole" interview with Work Tracks, a Job Network member. By letter dated 6 July 2001, the applicant was advised by Centrelink of its decision to suspend his Newstart Allowance owing to his failure to attend an interview to discuss "Work for the Dole" arrangements and that an activity test breach of 18 percent was imposed for twenty-six weeks beginning 6 July 2001. The applicant was also advised that if he did not lodge an "Application for Payment" form his Newstart Allowance would be cancelled. On 9 July 2001, Centrelink made an immediate payment reduction of $116.17 from the applicant's Newstart Allowance. 22 By facsimile on 6 July 2001 and letter dated 9 July 2001, the applicant lodged an appeal against the decision to reduce his payments on 29 June 2001 for the period of 26 June 2001 to 9 July 2001, and for the period 10 July 2001 to 23 July 2001 and also for the decision to cancel payments to him for alleged breach. At the time the appeal was lodged, the decisions the subject of the appeal had not been reviewed by an authorised review officer of Centrelink. The SSAT numbered the appeal B22557. 23 On 6 July 2001, the first respondent advised the applicant in writing that, as the SSAT had no power to hear the appeals until the decisions appealed against had been reviewed by an authorised review officer of Centrelink, the applicant's appeal had been sent to such an officer who would treat it as a request for review. 24 On 23 July 2001 by facsimile, and by letter on 26 July 2001, the applicant lodged an appeal with the SSAT against the decision, conveyed in the letter to him of 9 July 2001, to reduce his regular payment immediately by $116.17 on account of the activity test breach and to withhold and set off the lump sum advance payment of $38.50. This appeal was numbered B22653 by the SSAT. 25 On 18 July 2001, a decision was made by Centrelink to impose an activity test breach on the applicant for failing to attend a "Work for the Dole" interview with Work Tracks. 26 By facsimile on 25 and 27 July 2001, and letter received on 30 July 2001, the applicant lodged an appeal with the SSAT against the decision of 18 July 2001 to impose an activity test breach. This appeal was numbered B22666 by the SSAT. 27 Each of the decisions which were the subject of SSAT appeals B22557, B22653 and B22666 were referred to and considered by an authorised review officer of Centrelink. The decisions relating to the alleged breaches of the activity test were set aside. In a letter dated 27 July 2001 to the applicant, Centrelink advised as follows: "Dear Mr Tait I refer to your request for a review of the decisions to apply two activity test breach rate reduction periods to your Newstart Allowance. I am an Authorised Review Officer delegated under section 135 of the Social Security (Administration) Act 1999 and I have taken a fresh look at the decisions. I have decided to change the decision in applying an activity test breach rate reduction of 18 percent from 6 July 2001. I have decided to do this because the Social Security Law provides that Centrelink must give a person reasonable notice to attend interviews and the like. I am not satisfied that you were given reasonable notice to attend the appointment with Work Tracks of Kirwan, a Job Network Member on 13 June 2001. This means that your activity test breach rate reduction of 18 percent will be revoked. I have also decided to change the decision in applying an activity test breach rate reduction period of 24 percent from 25 July 2001. I have decided to do this because I am not satisfied that you were given a lawful notice under Social Security Law to contact Work Tracks, a Job Network Member. This means that your activity test breach rate reduction of 24 percent will be revoked. I must point out that it is a requirement to comply with notices given under Social Security Law for you [to] receive Newstart Allowance. Failure to comply with such notices may result in a penalty/ies being applied to your Newstart Allowance. This means that both activity test breach rate reduction periods will be revoked. I have instructed Centrelink to revoke both of your activity test breach rate reduction periods. Yours Sincerely, [Signature] Ian Anderson Authorised Review Officer 27/07/2001" 28 The applicant sought to appeal to the Administrative Appeals Tribunal ("the AAT") the decisions of the first respondent in SSAT appeals B22406 and B22461. On 29 June 2001, the applicant filed an application in the AAT for review of each decision to refuse to entertain the appeals as communicated to him in the letters of 15 June 2001 from the first respondent. These appeals were numbered Q2001/576 and Q2001/590 by the AAT. On 13 July 2001, the AAT held that it had no jurisdiction to review the decisions relevant to the applicant's appeal. Written reasons of the AAT were requested by the applicant and were given by Senior Member Beddoe on 31 July 2001. 29 The applicant filed the proceedings in this Court on 31 July 2003. 30 I now turn to the specific allegations against each respondent.

the first respondent 31 The decisions of the first respondent in relation to which the applicant now seeks review are those contained in paragraphs 1(i), 2 and 3 of his application. The issue is whether, having regard to the SSA Act, the first respondent was correct in its decision to refuse to list for determination by the SSAT the appeals numbered B22406 and B22461. 32 The jurisdiction of the SSAT to engage in a review of a reviewable decision is contained in s 142 of the SSA Act. That section, so far as presently relevant, provides: "142(1) Subject to section 144, if: (a) a decision has been reviewed by the Secretary, the CEO or an authorised review officer under section 126 or 135; and (b) the decision has been affirmed, varied or set aside; a person whose interests are affected by the decision of the Secretary, the CEO or the authorised review officer may apply to the SSAT for review of that decision. ... 144 The SSAT cannot review any of the following decisions: (a) a decision of an RAS authority to refuse to certify a person as a financial hardship farmer under section 26 of the 1991 Act; (b) a decision of an RAS authority to refuse to certify an asset as an unrealisable asset of a financial hardship farmer under section 27 of the 1991 Act; (c) a decision of the Minister for Agriculture, Fisheries and Forestry or the Secretary to the Department of Agriculture, Fisheries and Forestry under the Farm Household Support Act 1992; (d) a decision under section 36 of the 1991 Act; (e) a decision under a provision dealing with the approval by the Employment Secretary of a course, labour market program, program of work for unemployment payment or rehabilitation program; (f) a decision under section 16 of this Act; (g) a decision under section 58 or 59 to pay an amount to a person; (h) a decision to make a payment under section 75 of this Act; (i) a decision, under subsection 59(3) of this Act, to grant a claim for a pension bonus after the claimant has died; (j) a decision under subsection 7A(2) or paragraph 15(b) of the Farm Household Support Act 1992; (k) a decision to give a notice under Subdivision B of Division 6 of Part 3 of this Act; (l) a decision under subparagraph 129(2)(b)(i) regarding the information that is to be given to a person under that paragraph; (m) a decision under section 131 or 145 of this Act; (n) a decision under section 192, 193, 194 or 195 of this Act; (o) a decision under section 238 of this Act; (p) a decision of the Secretary: (i) determining, under subsection 1100(2) of the 1991 Act, that it is not appropriate for that subsection to apply in respect of a payment or a class or kind of payments; or (ii) determining, in accordance with section 1100 of the 1991 Act, that a rate of exchange is appropriate for the calculation of the value in Australian currency of an amount (the foreign amount) received by a person in a foreign currency if that rate does not differ by more than 5% from the rate of exchange that was applied when the person received Australian currency for the foreign amount; (s) a decision relation to the Secretary's power under section 182 of this Act to settle proceedings before the AAT." (Original emphasis) 33 The applicant contends that the SSAT has an implied concurrent jurisdiction with an authorised review officer to review any decision of Centrelink. The contention is misconceived. The jurisdiction of the SSAT is statutory and is solely to be found in s 142(1) of the SSA Act. The SSAT had no jurisdiction to review the decisions the subject matter of appeals B22406 and B22461. The decision of the first respondent to refuse to list the appeals for determination as being beyond the jurisdiction of the SSAT was correct. There was no statutory duty on the first respondent to refer to the SSAT the question of whether the SSAT had jurisdiction to hear the applicant's appeals. There is absolutely no evidence that the first respondent engaged in the conduct pleaded in paragraph 3 of the application. 34 The application against the first respondent fails.

the second respondent 35 I turn now to the position of the second respondent. The applicant was, as I have indicated above, paid the Newstart Allowance in issue by Centrelink. The applicant admitted in the AAT that he received the May payment on 30 May 2001. The evidence before me establishes that he was paid the June payment on 13 June 2001. There has been no decision of an authorised review officer in relation to those payments adverse to the applicant. The applicant has received the payments, despite complaining of non-payment in paragraphs (1)(ii)(a) and (b) of his application. 36 The decision to impose an activity test breach penalty on 29 June 2001 as pleaded in paragraph 1(ii)(c), and the giving effect to that decision as pleaded in paragraphs 1(ii)(d), (e) and (f), were reviewed and revoked by an authorised review officer, Mr Anderson. 37 The request to review the decision to make lump sum deductions as pleaded in paragraph 1(ii)(g) of the application was duly considered by Mr Anderson as an authorised review officer. As at the date of filing proceedings in this Court that review had not concluded. On 5 December 2001, Mr Anderson determined, pursuant to s 126(1) of the SSA Act, to withdraw the applications for review on the ground that no sufficient reason to review the decisions had been made out by the applicant. The applicant was advised in writing on 5 December 2001 of this decision and of his right to appeal to the SSAT. No appeal was made to the AAT in respect of this decision. 38 The decisions made on 18 July 2001, 20 July 2001 and 25 July 2001 as pleaded in paragraph 1(ii)(h), (i) and (j) of the application were also considered by Mr Anderson as an authorised review officer and subsequently revoked. 39 At the time the applicant commenced these proceedings against Centrelink, he knew that he had received the Newstart Allowance payments which are the subject of paragraphs 1(ii)(a) and (b); he had been notified in writing on 27 July 2001 that the decisions the subject of paragraphs 1(ii)(c), (d), (e), (f), (h) and (i) had been revoked; and he knew that the decision the subject of paragraph 1(ii)(g) was under the consideration of an authorised review officer. 40 Even if one assumed in the applicant's favour that any of the decisions of Centrelink pleaded in paragraph 1(iii) amounted to a decision of an administrative character to which the ADJR Act applies (see s 5(1) and s 3(1) of the ADJR Act), it is plain that there was no remaining decision at 31 July 2001 (the date of commencing proceedings) which adversely affected the interests of the applicant such as to constitute him a person aggrieved by the decisions and thereby entitled to apply to the Court under s 5(1) of the ADJR Act for an order for review of any or all of the same. To the extent that the decision pleaded in paragraph 1(ii)(g) was before an authorised review officer, the applicant has utilised the avenues for recourse available under the SSA Act and had available to him rights to review in a proper case to the AAT. In those circumstances, I would exercise a discretion to refuse the relief if I was otherwise persuaded that I had jurisdiction to review the decision: s 10(2)(b)(ii) of the ADJR Act; Woss v Jacobsen (1984) 4 FCR 356 at 362; (Full Court) (1985) 60 ALR 313; Perry v Director of Public Prosecutions (1985) 6 FCR 578; Domaine Finance Pty Ltd v Commissioner of Taxation (1985) 8 FCR 538 at 544. The proceedings against the second respondent fails for the above reasons. 41 I turn now to the position of the third, fourth and fifth respondents.

the third, fourth and fifth respondents 42 The decisions of the AAT, the third respondent, which are sought to be reviewed are the decisions pleaded in paragraphs 1(iii)(a) and (b) and 4 of the application. The central question in each of the matters raised in these paragraphs is whether Senior Member Beddoe was correct in his view that the AAT had no jurisdiction to hear and determine the matters raised in appeals Q2001/576 and Q2001/590 lodged by the applicant. 43 The power and jurisdiction of the AAT to review decisions is provided for in s 25 of the AAT Act. It is a power of review conferred by an enactment and the exercise of this power is subject to and limited by the terms in which the power is conferred: s 25(1) and s 25(3). The power to review is in respect of an application made under the enactment providing for application to the AAT for review of decisions: s 25(4) AAT Act: Lees v Comcare [1999] FCA 753 (FC) at [9] - [12]. In the present case the relevant enactment is the SSA Act and the power of review by the AAT is conferred by Pt 4 Div 5 of that Act. 44 So far as presently relevant, Div 5 provides: "178(1) Unless a contrary intention appears, the provisions of this Division apply to: (a) all decisions of an officer under the social security law or under the Farm Household Support Act 1992; and (b) all decisions under section 44-24 of the Aged Care Act 1997 by the Secretary or by a person to whom the Secretary has sub-delegated power under subsection 96-2(7) of that Act. (2) This Division applies as if a decision under the 1991 Act, as in force immediately before the commencement of this Part, were a decision under the social security law." ... 179(1) If: (a) a decision has been reviewed by the SSAT; and (b) the decision has been affirmed, varied or set aside by the SSAT; application may be made to the AAT for review of the decision of the SSAT. (2) For the purposes of subsection (1), the decision made by the SSAT is taken to be: (a) where the SSAT affirms a decision - that decision as affirmed; and (b) where the SSAT varies a decision - that decision as varied; and (c) where the SSAT sets a decision aside and substitutes a new decision - the new decision; and (d) where the SSAT sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the SSAT - the directions or recommendations of the SSAT. (3) Subsection (1) has effect subject to section 29 of the Administrative Appeals Tribunal Act 1975. (4) If: (a) the AAT sets aside a decision of the SSAT; and (b) the Secretary is satisfied that an event that did not occur would have occurred if the decision had not been made; the Secretary may, if satisfied that it is reasonable to do so, direct that the event is to be taken, for the purposes of the social security law, to have occurred. ... 181 The AAT may only review a decision that has been reviewed by the SSAT." 45 In the instant case there was no relevant decision which had been reviewed by the SSAT and which the applicant sought to have reviewed by the AAT. 46 The decisions which the applicant sought to have reviewed were decisions of the first respondent as to the listing and determination of appeals to the SSAT. They were not decisions falling within ss 178 and 179 of the SSA Act. Accordingly, s 181 of that Act denied to the AAT the power to review the decisions. 47 Senior Member Beddoe was correct in holding that the AAT had no jurisdiction to review the decisions in question. 48 Contrary to the submission of the applicant, s 25(5) of the ADJR Act does not have the effect of deeming the refusal of the first respondent to list appeals B22406, B22461 and B22557 for hearing and determination to be a review of the decisions the subject of the appeals by the SSAT. 49 Section 25(5) of the AAT Act provides: "25(5)For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing." 50 Section 25(5) relates to a failure to do an act, which it is within the jurisdiction or power of a person to do, within the period prescribed under the enactment providing for review. As I have set out earlier in these reasons, the SSAT had neither the jurisdiction nor the power to review a reviewable decision which had not previously been the subject of review by an authorised review officer. Section 25(5) of the AAT Act had no relevant application to the circumstances of this case. It follows that no basis for review of the decisions of the AAT as pleaded in paragraphs 1(iii)(a) and (b) and 4 of the application is made out. 51 As regards Senior Member Beddoe, the fifth respondent, the applicant seeks review of a direction given by him to the fourth respondent that materials dated 20 July 2001 not be put to the AAT for a hearing on 24 July 2001: paragraph 7 of the application. The direction, in my view, is not a decision of an administrative character made under an enactment. On 13 July 2001, Senior Member Beddoe, during a telephone directions hearing, directed the Registrar (the fourth respondent) that the AAT had no jurisdiction in the matters and that the applications be removed from the list of matters awaiting hearing in the AAT. 52 The applicant sought, on 17 July 2001, reasons for the decision given on the directions hearing on 13 July 2001. The request for reasons was not an occasion for the making of further submissions or the receipt of additional material for any future hearing. Even if the direction was reviewable, the applicant has failed to show that it is affected by reviewable error. The application for the above reasons fails against Senior Member Beddoe as the fifth respondent. 53 Finally, the applicant seeks review of the decisions of the fourth respondent as set out in paragraphs 5 and 6 of the application. In my view, neither of these matters is a reviewable decision. As I have stated above, at the time of the matters complained of, the question of jurisdiction of the AAT to hear and determine the appeals had been determined against the applicant on 13 July 2001. There was no occasion for the fourth respondent to do other than act in accordance with the direction of Senior Member Beddoe as to how the submissions and materials provided by the applicant on 20 July 2001 should be treated consequent upon the determination and directions made by the AAT on 13 July 2001. The decision of the Deputy Registrar of the AAT to seek a direction from the AAT as to the receipt and use to be made of materials and submissions supplied by the applicant is not, in my view, a reviewable decision to which the ADJR Act applies as it is not a decision of an administrative character made under an enactment. For this reason, there is no reviewable decision or conduct on the part of the fourth respondent entitling the applicant to the relief claimed. 54 The sixth respondent is in the same position as the second respondent which administers the social security law under and pursuant to the Commonwealth Services Delivery Agency Act 1997 (Cth) as agent for the sixth respondent. 55 The applicant has failed against all the respondents. In accordance with the ordinary practice, costs will follow the event. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper J.

Associate: Dated: 9 May 2003 Counsel for the Applicant: The Applicant appeared in person

Solicitor for the First, Third, Fourth and Fifth Respondents: M Belcher, Australian Government Solicitor

Counsel for the Second and Sixth Respondents: MA Fellows Solicitor for the Second and Sixth Respondents: Australian Government Solicitor

Date of Hearing: 18 July 2002 Date of Judgment: 9 May 2003

Social Security (Administration) Act 1999(Cth)ss 178, 179, 142, 144, 181

Newstart Allowance Administrative Decisions (Judicial Review) Act 1977(Cth)ss 15, 16, 25(5)

Services Delivery Agency Act 1997(Cth)

Tait v Harvey

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