FEDERAL COURT OF AUSTRALIA

Ibarcena v Secretary, Department of Family and Community Services [2001] FCA 453

JEREMY PATRICK IBARCENA v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

A1 of 2001

FINN J

20 APRIL 2001

CANBERRA

THE COURT ORDERS THAT:

            1.         The application be dismissed pursuant to O 20 r 2.

            2.         The application for further time in which to lodge an application for an order of review be refused.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

EX TEMPORE REASONS FOR JUDGMENT

1                     On 5 January 2001 the applicant, Jeremy Patrick Ibarcena, filed an application in this Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act").  He appealed from a decision of the Administrative Appeals Tribunal ("the AAT") of 9 November 2000 which affirmed a Social Security Appeals Tribunal ("SSAT") decision, which in turn affirmed a review officer's decision to affirm the original decision maker's decision cancelling Mr Ibarcena's Newstart Allowance from 9 June 2000.  The ground of the cancellation, put shortly, was his failure to provide information requested under section 196 of the Social Security Administration Act 1999 (Cth) ("the Administration Act"). 

2                     I would note in passing that there is a very real question which I need not explore as to whether the application itself complies with the requirement of O 53 r 3 of the Federal Court Rules and in particular sub-rule (2)(b) of that rule which requires the question or questions of law to be raised on the appeal to be stated in the application.  I merely note that this Court does require strict compliance with sub-rule (2)(b) and it probably is the case that Mr Ibarcena's application does not betray a question of law as such.  I should indicate that Mr Ibarcena is unrepresented in this proceedings as has also been the case in other proceedings he has brought in this Court. 

3                     Subsequent to the filing of the application Mr Ibarcena filed what now emerges to be an application for an extension of time under s 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the AD(JR) Act") in which to file and serve an application for an order of review.  The decision the subject of that application is the decision to cancel his Newstart Allowance.

4                     On 28 March 2001 the respondent, the Secretary, Department of Family and Community Services, filed a motion in which it sought orders: (1) that the application to appeal from the AAT be dismissed under O 20 r 2 of the Federal Court Rules; and (2) that leave not be granted under section 11(1) of the AD(JR) Act for further time in which to lodge the application for an order of review.  The reason for that motion will become apparent below.

The Legislation

The Social Security Law

5                     The relevant legislation in this appeal is the Administration Act and the Social Security Act 1991 ("the SSA").  The SSA was amended with effect from 20 March 2000 by the Social Security (Administration and International Agreements) (Consequential Amendments) Act 1999 (the Amendment Act).  The applicant's entitlements to benefits under the SSA is determined having regard to the application of both Acts.

Newstart Allowance

6                     At the time of the decision which is the subject of the Appeal the applicant was in receipt of Newstart Allowance (Part 2.12 of Chapter 2 of the SSA).  Insofar as is relevant, to be qualified for Newstart Allowance for a 'period' the applicant was required to satisfy the Secretary that (s 593 SSA):

(a)        he was unemployed;  and

(b)        throughout the period he:

            (i)         satisfied the 'activity test';  or

            (ii)        was not required to satisfy the 'activity test'.

7                     Subdivision B of Part 2.12 of the SSA establishes the activity test (s 601).  The requirements of the activity test are that throughout a period the Secretary is satisfied that a person is (s 601(1)):

(a)        actively seeking;  and

(b)        willing to undertake;

paid work other than paid work that is unsuitable to be undertaken by the person. 

8                     Section 603A provides that a person may not be required to satisfy the activity test if the Secretary is satisfied that special circumstances exist which would make it unreasonable for the person to comply with the activity test for that period.  The period cannot exceed 13 weeks unless the Secretary is satisfied as to the continued existence or likely continued existence of the special circumstances.

9                     Section 643 of the SSA provides that a Newstart Allowance rate is calculated by reference to the 'Benefit Rate Calculator B' (s 1068).  The rate of Newstart Allowance payable will take into account whether the person receives any 'ordinary income' (s 1068-G1, Part 3.10).  Where a person operates a business, the ordinary income from the business can be reduced by losses and outgoings, depreciations or other amounts that are allowable deductions under the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997 and that relate to the business (s 1075).

Obligations to provide information

10                  Division 1 of Part 5 of the Administration Act provides for the powers of the Secretary to request information that is relevant to determining whether a social security payment is payable.  Section 196 specifies certain requirements that must be complied with to seek information under the Division.  Division 6 of Part 3 of the Administration Act also provides powers for the Secretary to require recipients or claimants of social security payments to provide information.  In the event that a Newstart Allowance recipient does not comply with a requirement that is reasonable the Newstart Allowance is not payable (s 63(5)) (see also s 631 SSA).  Section 81(2) of the Administration Act provides for the cancellation or suspension of a "partner's" social security payment if a notice under Division 1 of Part 5 is provided to a person and not complied with and the information is related to matters that might also affect the payment of the partner's social security payment.

Review of decisions

11                  Part 4 of the Administration Act provides for review of decisions by way of internal review, review by the SSAT or the AAT.  The Secretary may review a decision even if an application has been made:  (a) to the SSAT;  or (b) to the SSAT and subsequently to the AAT;  for review of a decision (s 126(2)), but the Secretary is required to notify the SSAT or the AAT if such a decision is made (s 128).  Section 126(3) of the Administration Act provides that in reviewing a decision the Secretary may:

(a)        affirm the decision;

(b)        vary the decision;  or

(c)        set the decision aside and substitute a new decision.

12                  Section 180 of the Administration Act also provides that where an application has been made to the AAT a decision can be varied or set aside and substituted and the person making that application may either continue or withdraw that application.  Section 26 of the AAT Act provides that after an application  has been made to the AAT a decision may not be altered otherwise than by the AAT unless the enactment that authorised the making of the application expressly permits the decision to be altered or the parties consent to the alteration.

Factual Background

13                  The applicant was in receipt of benefits under the SSA from 19 January 1993.  During the 1997/1998 financial year the applicant received Newstart Allowance.  He continued to receive Newstart Allowance until it was cancelled on 9 June 2000.  In the 1997/1998 financial year the applicant notified the respondent agency (Centrelink) that he earned $1,800.00.  Pursuant to the Data-matching Program (Assistance and Tax) Act 1990 the Australian Taxation Office (the ATO) advised the respondent that the applicant had income of $9938 as well as social security payments of $6787 during the 1997/1998 financial year.  On 19 October 1999 the respondent notified the applicant of the data match and asked the applicant to contact the respondent if he thought that the information was incorrect and to provide copies of payslips, group certificates, profit and loss statements, balance sheets, bank books, bank statements and tax returns so that the respondent could check its records. 

14                  On 26 October 1999 the applicant wrote to the respondent and declined to provide any further information.  On 19 May 2000 the respondent sent the applicant a letter advising him that an overpayment of Newstart Allowance had been raised for the period 28 June 1997 to 30 June 1998 in the amount of $4,647.42.  The applicant was advised '[i]f you provide your employer details the debt can be recalculated.  It may reduce the amount considerably'.  On or about 26 May 2000 the applicant provided a copy of his 1997/1998 tax assessment notice and Centrelink group certificate to the respondent.  On 26 May 2000 the respondent notified the applicant in writing that the documents provided were not those requested.  The respondent requested that the applicant provide a copy of his 1997/1998 tax return and group certificates.  The letter stated that it was a notice given under s 196 of the Administration Act.  On that date the respondent also requested from the applicant's former employer by way of s 196 notice details of the applicant's employment in 1997/1998. 

15                  On 21 June 2000 the respondent notified the applicant in writing that his overpayment of $4,647.42 had been recalculated on the basis of the information provided by his employer.  As a result of that recalculation the overpayment was reduced to $671.61.  The respondent's letter of 21 June 2000 also notified the applicant that his Newstart Allowance was cancelled from 9 June 2000 as the information requested in the s 196 notice of 26 May 2000 had not been provided.  The applicant was notified that his Newstart Allowance would be recommenced when he provided the requested information.

16                  On 5 July 2000 the applicant lodged an appeal against the decision to cancel his Newstart Allowance with the SSAT.  On 18 July 2000 the original decision maker upon reconsideration decided not to vary or set aside the decision of 21 June 2000.  On 24 July 2000 an Authorised Review Officer affirmed the decision of 21 June 2000.  The applicant lodged a further application to the SSAT on 27 July 2000.  On 24 August 2000 the SSAT affirmed the decision that the cancellation of the applicant's Newstart Allowance was correct.  On 14 September 2000 the applicant lodged an application for review in the AAT.  The decision was again affirmed by the AAT on 9 November 2000.  On 5 January 2001 the applicant filed the Appeal in this Court.

17                  During the course of interlocutory proceedings in this matter before Madgwick J in February 2001 Mr Ibarcena agreed to provide to the respondents the documents originally requested under s 196 of the Administration Act.  In consequence of the receipt of those documents the respondent reviewed the decision of 21 June 2000 to cancel Mr Ibarcena's Newstart Allowance.  That review was conducted under s 126 of the Administration Act.

18                  On 22 February 2001 the original decision to cancel the Newstart Allowance was revoked, operative from 9 June 2000, the date on which it was originally made.  The effect of that revocation is that there is now no real contest between the parties as to Mr Ibarcena's right to a Newstart Allowance from 9 June subject, of course, to his continuing to satisfy the requirements for that allowance.  It is for this reason that the respondent properly has sought to have the proceedings dismissed under O 20 r 2 of the Federal Court Rules.

Conclusions

19                  It is unnecessary here that I reiterate at length the caution that must be demonstrated when exercising the O 20 r 2 dismissal power:  see General Steel Industries Limited v The Commissioner for Railways (1964) 112 CLR 125.  This is a clear case.  To paraphrase observations of the Full Court of this Court in Beitseen v Johnson (1989) 29 IR 336 at 337 to 338, I do not suggest that Mr Ibarcena does not genuinely desire to agitate the issues involved in the grounds he has specified in his application.  However, that desire does not satisfy the requirement that the legal rights of the party should now be an actual controversy.

20                  That requirement entails that any judgment which might be given in this proceeding should confirm or modify rights which remain capable in a real and genuine sense of being enjoyed.  Here, as a result of the revocation decision, Mr Ibarcena now enjoys more than an order of this Court could provide him in a proceeding such as this.  Any order made would be futile.  In the circumstances, the application is not deserving of a hearing:  see Anderson v The Commonwealth Bank of Australia (unreported, FCA per Lindgren J, 1 November 1995).  It raises no real question to be tried:  Webster v Lampard (1993) 177 CLR 598 at 602.  In consequence I will order that the application be dismissed pursuant to O 20 r 2. 

21                  The application for an extension of time under s 11(1) of the AD(JR) Act is subject to a like vice.  Assuming I was prepared to grant Mr Ibarcena's application for an extension of time, the impugned decision has already been revoked.  No useful purpose could now be served in undertaking to review it.  It would be futile.  In consequence I will refuse the application for further time in which to lodge the application for an order of review. 

Associate:

Dated:              23 April 2001