FEDERAL COURT OF AUSTRALIA

Young v Secretary, Department of Family & Community Services

[2003] FCA 937

SOCIAL SECURITY – rent assistance – overpayment – decision of Administrative Appeals Tribunal upholding decisions of non-entitlement to receive rent assistance and to raise a debt in respect of overpayment – whether applicant entitled to tender evidence not before Tribunal – whether Tribunal wrongly refused to allow evidence to be called – whether Tribunal biased or failed to afford procedural fairness – manner of questioning unrepresented applicant – whether Tribunal wrongly failed to look at authorities – whether material error of law by Tribunal

BIAS – judge – whether apprehended bias – conduct of case management – comments and questions during directions hearings – suggestion that paying the debt an option – question whether pro bono legal advice would be accepted – comment that a further attempt to obtain favourable findings of fact in the Court is not possible – failure of counsel assigned under legal assistance scheme to contact applicant – order for payment of costs of adjournment of trial when applicant in prison – refusal to provide copies of transcripts of previous hearings

Social Security Act 1991 (Cth) ss 11(4), 13(2)

Livesey v New South Wales Bar Association (1983) 151 CLR 288, applied

Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 1227, cited

Cabal v United Mexican States (No 6) [2000] FCA 651 (2000) 174 ALR 747, cited

R v Watson; Ex parte Armstrong (1976) 136 CLR 248, applied

Sun v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71, applied

PAUL CHARLES YOUNG v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

V 676 of 2001

GRAY J

5 SEPTEMBER 2003

MELBOURNE

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The applicant pay the respondent’s costs of the appeal.

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

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

The nature of the proceeding

1                     This appeal is from a decision of the Administrative Appeals Tribunal (“the Tribunal”), given on 18 May 2001.  By s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), a party to a proceeding before the Tribunal may appeal to this Court, on a question of law, from any decision of the Tribunal in that proceeding. 

2                     The Tribunal affirmed a decision of the Social Security Appeals Tribunal (“the SSAT”), made on 24 November 1999.  In turn, the SSAT affirmed two decisions of a delegate of the respondent, the Secretary of the Department of Family and Community Services.  The first was a decision to cancel payments of rent assistance to the applicant from 17 February 1999.  The second was that a debt of $10 040.61 in respect of rent assistance paid for the period from 28 January 1993 to 17 February 1999 be raised and recovered.  It should be noted that the Department of Family and Community Services is also sometimes known as Centrelink.  It was previously known as the Department of Social Security.  As a
convenient abbreviation for these expressions, I use the term “the Department” in these reasons for judgment, unless making specific reference to the Department in one of its guises.

3                     Accordingly, the central issue is whether the Tribunal made an error of law in applying the provisions of the Social Security Act 1991 (Cth) (“the Social Security Act”) in such a way as to affect its decision that Mr Young was not entitled to be paid rent assistance. 

The legislation

4                     Throughout the relevant period, Mr Young was in receipt of Newstart allowance.  By s 1068(1)(a) of the Social Security Act, the rate of Newstart allowance is to be calculated in accordance with the rate calculator at the end of that section.  Module A of the rate calculator at the end of s 1068 provides for the overall rate calculation process.  Point 1068-A1 contains a method statement, step three of which requires the person applying the calculator to work out the applicable amount (if any) for rent assistance, using Module F.  Point 1068-F1, in Module F, provides so far as is relevant to this case:

“Subject to points 1068-F3 and 1068-F4, an amount to help cover the cost of rent is to be added to a person’s maximum basic rate for a period if:

(a)       the person is not an ineligible homeowner; and

...

(b)       the person pays, or is liable to pay, rent (other than Government rent)
            in respect of the period; and

(c)        the rent is payable at a rate of more than the rent threshold rate”.

5                     No issue arises in the present case as to the application of points 1068-F3 and 1068-F4, the former of which was repealed in 1991.  Nor is there any issue of government rent.  The rent Mr Young claimed to be paying, or to be liable to pay, exceeded the threshold rate.  It should be noted that, in its reasons for decision, the Tribunal quoted from the provisions of Module F in the rate calculator following s 1068B of the Social Security Act, which related to the calculation of rates of parenting payment.  The error is of no significance, because the substance of the provisions that the Tribunal applied is exactly the same as the provisions relating to entitlement to rent assistance as part of Newstart allowance.  It is not a material error.

6                     Certain definitions of terms used in the Social Security Act relating to rent are found in s 13(1).  The term “ineligible homeowner” is defined by reference to the term “homeowner”, followed by a series of exclusions, none of which related to Mr Young’s situation.  The word “rent” is defined as having the meaning given by subss (2) and (4).  Subsection (4) was repealed by Act no 114 of 1997.  Relevantly, s 13(2) provides:

“Amounts are rent in relation to the person if:

(a)       the amounts are payable by the person:

            (i)         as a condition of occupancy of premises, or of a part of
                        premises, occupied by the person as the person’s principal
                        home

            ...

(b)       either:

            (i)         the amounts are payable every 3 months or more frequently; or

            (ii)        the amounts are payable at regular intervals (greater than 3
                        months) and the Secretary is satisfied that the amounts should
                        be treated as rent for the purposes of this Act.”

7                     Section 11(4) of the Social Security Act provides, so far as is relevant to this case:

“For the purposes of this Act:

(a)       a person who is not a member of a couple is a homeowner if:

            (i)         the person has a right or interest in the person’s principal
                        home; and

            (ii)        the person’s right or interest in the home gives the person
                        reasonable security of tenure in the home”.

8                     Section 1224(1) of the Social Security Act provided that, if an amount had been paid to a recipient by way of social security payment and the amount was paid because the recipient made a false statement or a false representation, the amount so paid became a debt due by the recipient to the Commonwealth.

The issues perceived by the Tribunal

9                     The foundation of the issues before the Tribunal was the fact that Mr Young was the registered proprietor of land at Dunolly (“the Dunolly property”).  Mr Young claimed that at all relevant times he had been holding the Dunolly property on trust and that therefore he was not its beneficial owner.  The Tribunal identified in its reasons for decision four issues in the following terms:

“(i)      Whether the Dunolly property is Mr Young’s principal home.

(ii)       If so, whether Mr Young has a right or interest in the Dunolly
            property.

(iii)      If so, whether Mr Young’s right or interest in the home gives him
            reasonable security of tenure in the home;

...

(iv)      Whether Mr Young paid or was liable to pay rent during the relevant
            period.”

10                  The Tribunal also dealt with the issue, with which s 1224 of the Social Security Act required it to deal, of whether rent assistance had been paid to Mr Young because of false statements made by him. 

11                  Given Mr Young’s claim to have become a mere trustee of the Dunolly property, the crucial issue was whether, by creating two purported trusts, he had succeeded in depriving himself of the reasonable security of tenure that he would otherwise have had as the registered proprietor of the Dunolly property. 

The Tribunal’s reasons

12                  The Tribunal dealt in turn with each of the issues it had identified.  In the course of its reasons for decision, the Tribunal made findings of fact to the following effect:

·        At all relevant times, Mr Young lived at the Dunolly property as his principal home.

·        Since 7 February 1991, the title to the Dunolly property was registered in the name of Paul Charles Kerr, a name used by Mr Young.  Mr Young was therefore its registered proprietor and had a right or interest in the Dunolly property. 

·        The first trust of the Dunolly property that Mr Young claimed to have created, a trust for his daughter Stephanie, never existed.  It may be that Mr Young intended to hold the property for the benefit of Stephanie when he bought it, but he did not intend to interfere with his own entitlement to deal with the Dunolly property for his own benefit.  There was nothing to show that he ever constituted a trust.  The fact that he destroyed documents he alleged had come into existence to establish the trust, when his relationship with Stephanie’s mother deteriorated, and he regarded that as putting an end to the trust, indicated that he had never effected any intention to give full beneficial ownership of the Dunolly property to a trustee, to hold for the benefit of Stephanie.

·        A purported declaration of trust of the Dunolly property in favour of K.F. & F. Foundation, dated 24 December 1996, was ineffective.  No trustee was ever appointed under the terms of the declaration of trust to carry out the objects of the Foundation.  Mr Young acted as if he were the trustee, instead of appointing someone, as contemplated by the terms of the declaration.  Although in a handwritten document dated 15 January 1997, Mr Young purported to appoint six named persons as trustees of the K.F. & F. Foundation, only one of those people had ever been made aware of his possible or proposed role as trustee and he had declined to act as trustee when called on to do so.  Mr Young did not
comply with the obligations of a trustee, by keeping trust accounts, or keeping his funds separate from the trust funds.

·        Mr Young had reasonable security of tenure of the Dunolly property.  Even if the K.F. & F. Foundation had existed as a separate entity, it could not challenge Mr Young’s security of tenure as he decided the terms on which he occupied the Dunolly property.  A purported lease dated 30 March 1997 gave Mr Young lifetime security of tenure, which could only be altered with the consent of both parties, or by him cancelling the lease.

·        The applicant had been a homeowner as defined in s 11(4) of the Social Security Act since he began living at the Dunolly property.  He was never entitled to rent subsidy in respect of his occupation of the Dunolly property. 

·        Mr Young never paid rent to Stephanie, or to someone on her behalf, in respect of his occupancy of the Dunolly property.

·        Despite the existence of a purported lease from K.F. & F. Foundation, providing for rent at the rate of $200 per week from 30 March 1997 (which Mr Young said was later reduced to $100 per week by agreement), there was no evidence that Mr Young had ever paid any rent for his occupancy of the Dunolly property.  He spent what money he needed to spend on himself and the Dunolly property and regarded the money that he spent on the Dunolly property as his rent. 

13                  The Tribunal expressed its conclusions to that point as follows:

“I find that Mr Young has never been entitled to rent assistance in respect of his occupation of the Dunolly property.  He has at all times had an interest in that property as the registered proprietor and has at all times had reasonable security of tenure.  Thus he has at all relevant times been ‘a homeowner’ and not entitled to payment of rent assistance.  Further, I find he has not paid or been liable to pay rent.  The decision cancelling rent assistance will be affirmed.

Had I had any doubt about the significance of the purported trusts, the same result would have followed under s 11(8) of the Act.  As Mr Young has at all relevant times been the registered proprietor of the Dunolly property, he has always had ‘a right or interest’ in the property.  Under s 11(8) of the Act, he is to be taken to have a right or interest that gives him ‘reasonable security of tenure’ unless the Secretary, or the Tribunal standing in the shoes of the Secretary, is satisfied that the ‘right or interest’ does not give him ‘reasonable security of tenure’.  I am not so satisfied.”

14                  In relation to the raising and recovery of a debt, the Tribunal found that, on 23 December 1992, Mr Young, using the name Luke Phillips, completed a Newstart allowance claim in which he stated that he paid $75 per week rent to Stephanie Kerrwin.  He lodged a copy of a receipt for $75 for rent, which appeared to be signed by Ms Stephanie Kerrwin.  The Tribunal also referred specifically to a Centrelink review form, dated 3 February 1998, in which Mr Young said that he rented the Dunolly property from the K.F. & F. Foundation at a rent of $100 per week, being a variation from 24 December 1997 of the rent payable under the original lease of 30 March 1997.  It is apparent from the Tribunal’s reasons for decision that it looked at a number of such review forms.  It described them as generally having an element of fiction or fantasy, involving the use of different names, contradictory accounts of his relationship to Stephanie Kerrwin, the name of his employer and his reason for being at the Dunolly property.  The Tribunal found that there were false statements in which Mr Young claimed to be paying rent in respect of the Dunolly property and that it was “because” of those statements that he was paid rent assistance.  The Tribunal found that the whole claim for rent assistance was based on false statements that Mr Young paid or was liable to pay rent and that he was not the owner of the Dunolly property.  It found that the rent assistance was paid to him because he made those false statements.  Accordingly, the Tribunal held that the whole amount of rent assistance paid to Mr Young in respect of the Dunolly property was a debt due by Mr Young to the Commonwealth under s 1224 of the Social Security Act.

15                  The Tribunal also commented on a claim repeated by Mr Young frequently during the Tribunal’s hearing, that the Department had been negligent and incompetent in failing to establish whether his rent assistance claim was appropriate.  It drew attention to the fact that Mr Young had never made a full disclosure of the facts, so as to enable a proper decision to be made.  It also drew to Mr Young’s attention during the hearing that it was the Tribunal’s function to make a new decision on the material before it.

The course of the proceeding

16                  This case has had a troubled history in this Court.  At the first directions hearing, on 9 August 2001, neither party appeared.  The District Registrar of the Court came into the courtroom in which I was conducting directions hearings and informed me that Mr Young had telephoned to say that he was unable to attend, but would send a fax outlining his position.  I adjourned the matter for a further directions hearing on 3 September 2001.  Mr Young appeared, but there was no appearance for the respondent.  Mr Young claimed to have served the notice of appeal on Centrelink.  I stood the matter over three times during the morning and asked my associate to contact the Australian Government Solicitor (“the AGS”) or the Department, to see whether anything was known of the matter.  The result was that a solicitor from the AGS came to the Court and, in the course of the morning, succeeded in obtaining instructions to act on behalf of the respondent and to lodge a notice of appearance.  I drew Mr Young’s attention to the requirement that an appeal from the Tribunal be limited to a question of law.  I directed that he file and serve an amended notice of appeal, setting out the questions of law he claimed the appeal raised and the grounds of the appeal.  I also raised with Mr Young the question of legal advice.  He indicated that he had been referred to a body called the Australian Welfare Organisation and felt that that body would want to assist him in the preparation of his amended notice of appeal.

17                  On 3 October 2001, the last day of the time limited by my direction, Mr Young filed an amended notice of appeal.  It appears to have been drawn without the assistance of a lawyer, or of anyone familiar with legal processes.  The questions of law he wished to raise were stated as follows:

“A       THE APPLICANT HAS BEEN DENIED DUE PROCESS OR
            PROCEDURAL FAIRNESS BY THE CONDUCT OF THOSE
            OFFICERS INVOLVED FROM CENTRELINK (SEE GROUNDS)

B          THE DECISION OF THE AAT HAS NOT SATISFIED THE TEST OF
            REASONABLENESS IN LAW, IN THAT NO DECISION TO AFFIRM
            THE ISSUE BEING REVIEWED COULD ON ALL THE EVIDENCE
            BE CONSIDERED REASONABLE, FAIR OR JUST

C         THE APPLICANT HAS BEEN DENIED THE RIGHT TO ADDUCE
            EVIDENCE AND CALL WITNESSES BY THE AAT MEMBER
            (DENIAL OF PROCEDURAL FAIRNESS)

D         THE AAT DECISION IS, ON THE BASIS OF ALL THE EVIDENCE
            NOT BASED IN LAW OR FACTS AS KNOWN, AND IS OBVIOUSLY
            AND COMPLETELY CONTRARY TO THE EVIDENCE AS
            PRESENTED

E         IN ALL THE CIRCUMSTANCES IT IS UNAMBIGUOSLY [sic] CLEAR THAT A MISSCARRIAGE [sic] OF JUSTICE HAS OCCURRED.

F         THE AAT HAS FAILED TO BASE A DECISION IN LAW IN
            RELATION TO THE FEDERAL GOVERNMENT DEPARTMENT
            REGULATIONS AND SPECIFICATIONS AS APPLICABLE IN THIS
            SPECIFIC CASE (TRUST LAWS) THEREFORE THE DECISION TO
            AFFIRM IS UNLAWFUL”

18                  The grounds in Mr Young’s notice of appeal were expressed as follows:

“A       THE CONDUCT OF THE DEPARTMENT(/STAFF OF
CENTRELINK) HAS BEEN NEGLIGENT AND INCOMPETENT IN
RELATION TO THE HANDLING OF THIS MATTER.  THE STAFF INVOLVED HAVE FAILED IN THEIR DUTY OF CARE TO THE APPLICANT AND TO THEIR DUTIES OF THE OFFICE THEY HOLD.  ONE SPECIFIC INSTANT ORIGINATING FROM BALLARAT REGIONAL OFFICE SHOWS STAFF CONDUCT TO UNCONSCIONABLE [sic] AND A BREACH OF CLIENT PRIVACY.  THIS PRIVACY ISSUE HAS BEEN REFERRED ON TO OTHER PARTIES.

B          STAFF HAVE BREACHED THEIR DUTY OF MUTUAL TRUST AND CONFIDENCE AND FAILED TO VOLUNTARILY RESOLVE ISSUES, IN THE FULLY INFORMED KNOWLEDGE THAT THEY HAVE ACTED CONTRARY TO DEPT SPECIFICATION AND REGULATION.

C         CENTRELINK HAVE GIVEN FULLY INFORMED AND DIRECT CONSENT AND ADMITTED LIABILITY AND CULPABILITY BY ABOVE BREACHES AND BY CONSENTING TO MAKE AND CONTINUE THE DISPUTED RENT PAYMENT, EVEN AFTER BEING ADVISED OF UPDATED CORRECT AND LAWFUL INFORMATION FROM THE APPLICANT.

D         CENTRE LINK [sic] (VIA FOI REQUEST) HAVE FAILED TO PRESENT EVIDENCE AND HAVE DELIBERATELY AND WILLFULLY [sic], WITHHELD INTERNAL DEPARTMENT DOCUMENTS THAT PROVE THEY WERE FULLY INFORMED AND AGREED THE RENT CLAIM WAS IN THEIR OPINION LEGITIMATE

E         THE AAT DECISION IN [sic] UNEQUIVOCALLY AND UNAMBIGUOSLY [sic] BASED IN OPINION AND SPECULATION AND NOT IN LAW OR FACT, THE AAT HEARING TRANSCRIPT PROVES THIS TO BE THE CASE.”

The notice of appeal also had a note to the effect that Mr Young intended to add further grounds of appeal and further questions of law and to refer to case law.

19                  The matter came on for hearing on 19 June 2002.  Mr Young appeared unrepresented.  He told me he had been arrested on a warrant and had been in custody since 25 May 2002.  He gave me a long and complex history of involvement in various legal proceedings related to a number of offences.  His emotional state was such that he broke down and wept on several occasions and had obvious difficulty regaining a semblance of composure.  I discussed at some length with him the question of legal representation.  He told me that he had been unable to get assistance from any private solicitor.  At his request, I adjourned the hearing and issued a certificate pursuant to O 80 of the Federal Court Rules, referring Mr Young for legal assistance.  I reserved the costs of that day.

20                  The matter came on for hearing again on 7 November 2002.  Mr Young again appeared unrepresented.  In the meantime, counsel to whom Mr Young had been referred pursuant to O 80 had discharged the referral.  In accordance with proper practice, he had not communicated to the Court the reason for the discharge of the referral.  It would be completely inappropriate for a reason to be communicated, especially in a case in which counsel discharged the referral on the basis of an opinion that a litigant had no viable case.  Mr Young claimed that he was unaware of any attempt by counsel assigned to him to get in touch with him.  He did claim that a letter from a law firm was sent to his home address and was in the possession of his father.  He claimed that that letter advised that the solicitor was unable to act in the matter.  Mr Young said he had tried the Welfare Rights Network and the Australian Council of Social Services, to see if he could get assistance.  By that stage, he had been sentenced to imprisonment for five years, to serve a minimum of three years and six months before being eligible for parole, with eleven months during which he was remanded in custody taken into account.  He had been in Thomas Embling Hospital but had been resisting treatment.

21                  On that occasion, Mr Young gave me to understand that he had some possibility of obtaining assistance with his case.  I stood the case down temporarily, to enable Mr Young to make phone calls, to explore these options.  On resumption, he told me that he had had to leave a message, because no-one was in attendance.  He also attempted to call Victorian Legal Aid and was told that they would send someone to the prison to speak with him.  On the basis that Mr Young had some chance of securing representation, I decided to grant an adjournment.  Counsel who appeared on that day for the respondent sought the costs of the adjournment.  After hearing Mr Young, I made an order for costs against him.

22                  On 29 April 2003, the hearing finally took place.  Mr Young again appeared without representation.  It was clear that he failed to understand the concept of a question of law.  This is not intended to be a criticism of him, because that concept is necessarily imprecise and lawyers may differ on what it comprehends.  It is merely to explain the course that the proceeding took and to lay the basis for dealing with the arguments Mr Young put.  Before proceeding to deal with those arguments, it is necessary to deal with Mr Young’s application to me to disqualify myself for bias. 

The bias application

23                  In the course of the morning on 29 April 2003, Mr Young asked me to disqualify myself on the ground of bias or perceived bias.  He made a number of allegations as grounds for this application.  In essence, they were:

·        In the first hearing, when I came onto the bench, I commented that Mr Young should just pay the debt.  He took me as telling him that he was wasting his time in the Court and should just pay the debt.

·        Mr Young was oppressed by having heard nothing from the counsel assigned to him under O 80, and turning up to the second hearing, not knowing whether that counsel would be present.

·        I ordered costs of the second adjournment of the hearing against Mr Young.

·        On the second hearing date, I asked Mr Young what he would do if his legal advice was negative about the matter, which he took to mean that he was not going to get any help from the Court and that I didn’t think he was going to get any help from a solicitor. 

·        I refused to provide a copy of transcripts of the previous hearings to Mr Young.

·        Mr Young’s common law rights, “probably aspects of the bill of rights” and “human rights processes” were being contravened by the process.  Mr Young could not point to what those might be but his feeling was that there were issues at common law which vindicated his position and which might justify me in making an appropriate ruling about the matter going back to the Tribunal.

·        There is authority that a prisoner’s right to effective access to the courts in a proper case must never be taken away by imposing a costs condition which is or may be unreasonable in the light of the resources of the prisoner. 

·        I had commented several times to the effect that all of the earlier processes had gone against Mr Young and he could not come to the Court and have another shot.

24                  After Mr Young had made his submission about bias, I ruled that I should not disqualify myself.  For Mr Young’s benefit, I should now state briefly my reasons for that ruling.  At the time, I did not have a transcript of the earlier hearings in the matter.  Mr Young’s submissions prompted me to order one, so that I could clarify my recollection as to the allegations he made.  For the purposes of these reasons, I have done so. 

25                  The test to be applied in determining whether a judge should disqualify himself or herself from sitting when there has been an allegation of bias was stated by the High Court of Australia in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293 – 294:

“That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.”

26                  The court went on to say:

“If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he should, of course, refrain from sitting.  On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court.”

27                  Contrary to Mr Young’s recollection, I made no remark about paying the debt on first coming onto the bench on 19 June 2002.  The relevant discussion occurred at least half an hour into the hearing, when Mr Young asserted that the Department had raised the debt and said “I’m forced to defend myself against it.”  I responded, “Or to pay it.  I mean, those are the two options.  You either appeal it or you pay it.”  The discussion then proceeded about deductions being made from Mr Young’s social security payments and the question whether there had been any challenge to any decision to deduct instalments of the debt.  It is plain that this exchange could not possibly convey to a reasonable person any suggestion that I would not decide the case impartially.  I made no suggestion that Mr Young should pay the debt, but
responded to his assertion that he was forced to defend himself by drawing attention to the option of payment.

28                  It is difficult to see how a failure by counsel to whom a litigant is assigned on a voluntary basis, pursuant to O 80 of the Federal Court Rules, to provide representation could be said to lead to a conclusion that the Court was biased against the litigant.  Order 80 is necessarily an imperfect system.  It is an attempt to overcome an even more imperfect system, under which unrepresented litigants are unable to assist the Court in the presentation of their cases and are unable to obtain legal aid.

29                  The order for costs of the second adjournment of the hearing was a proper order in the circumstances.  The costs of the first adjournment had been reserved.  Mr Young put submissions against the order for costs, based largely on his impecuniosity.  Although impecuniosity is sometimes a consideration, it is certainly not a bar to an order for costs.  No reasonable person would suppose that I might not approach the case in an impartial way on the basis that I had ordered Mr Young to pay the costs of the adjournment, even if he does feel oppressed by having had to attend on the second hearing date without knowing whether counsel assigned to him would be there. 

30                  The Court does not provide transcript for litigants.  The proceedings in the Court are recorded and, if necessary, transcribed, by a private contractor, engaged for the purpose.  Only if the parties, or the Court, order transcript will it be produced at all.  In cases of appeals from the Tribunal, which are limited to questions of law, it is rare for me to order transcript of the proceedings.  As I have said, I did not do so in this case until after Mr Young had made his application for me to stand down.  In some cases, the Court will assist an impecunious party to view its copy of the transcript, or invite another party to do so, in order to facilitate the conduct of the Court’s business.  In the present case, that was not possible on 29 April 2003, because no transcript had been prepared by then.  No reasonable person would apprehend bias on the part of the Court in refusing to provide free transcript to a particular litigant, when it does not provide transcript, free or otherwise, to any litigant.

31                  Mr Young’s allegations about infringement of his common law rights, the bill of rights (whatever that might be) and human rights do not advance the matter any further.  I appreciate that he feels that he is a victim in all matters connected with this proceeding, but that constitutes no ground for suggesting a reasonable apprehension of bias. 

32                  There is a principle that a person detained by authority of the State should not be deterred by a potential costs order from seeking his or her liberty.  See Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 1227 at [5], following Cabal v United Mexican States (No 6) [2000] FCA 651 (2000) 174 ALR 747 at [22].  The principle relates to the costs of a proceeding brought by a prisoner, seeking release.  It has no application in a proceeding that happens to be on foot at a time when one of the litigants is imprisoned.  Again, I appreciate that the fact of his imprisonment has hampered Mr Young in the preparation and presentation of his case.  For this reason, I have twice adjourned the hearing, in the hope that Mr Young would be able to find a legal representative willing to appear for him.  In the end, this was not possible and Mr Young had to proceed, hampered by his imprisonment or not.  It could not be said that the order for costs on the occasion of the second adjournment either infringed Mr Young’s right to approach the Court or constituted evidence of bias. 

33                  On 7 November 2002, I did ask Mr Young what his reaction would be to legal advice that his appeal could not raise a point of law and could not succeed.  In weighing up whether to grant him a second adjournment and to allow him to make further attempts to secure representation, I thought it desirable to know whether he would accept negative advice if he were given it.  Mr Young’s response suggested that he was convinced of the correctness of his appeal and would proceed in any event.  Notwithstanding this, I granted him an adjournment to seek legal representation.  It could hardly be suggested that this was evidence of bias.  The question was a legitimate one.

34                  Throughout all of the occasions on which Mr Young has appeared in relation to this proceeding, I have been attempting to focus his attention on the proposition that an appeal from a decision of the Tribunal is limited to a question of law.  I felt it necessary to do so, in order to save time on the hearing of the appeal.  In this respect, I was unsuccessful.  As I have said, Mr Young has failed to understand the concept of a question of law and has persisted in raising arguments that the Tribunal failed to find the facts correctly.  In the course of attempting to draw the distinction between a question of law and a question of fact, I pointed out to Mr Young that the Social Security Act allows for three levels of merits review (by an authorised review officer, by the SSAT and by the Tribunal).  These were the occasions on which Mr Young had the opportunity to obtain findings of fact favourable to his case, if he could.  If he had failed to do so, it was not open to him to come to the Court and seek yet another opportunity.  Mr Young has had difficulty in accepting this advice.  It is correct advice.  It is certainly not evidence of bias.

35                  For these reasons, informed as they are now by an examination of the transcripts of previous hearings, my decision to refuse to disqualify myself for apprehended bias was the correct one.  Neither alone nor in combination did the allegations relied on by Mr Young as grounds satisfy the test referred to in Livesey.  The proper course was for me to do as I did, to proceed to do my duty by completing the hearing of Mr Young’s appeal and preparing my judgment on that appeal.  To the issues raised by Mr Young I now turn. 

The attempt to tender further evidence

36                  At an early stage of the hearing on 29 April 2003, Mr Young announced that he wished to present most of his material by way of giving evidence on affirmation and that he wanted to be available for cross-examination.  I refused that application.  He then attempted to tender a document which had not been before the Tribunal on the basis that it evidenced the payment of stamp duty in respect of a trust instrument, and therefore proved that the trust of the Dunolly property with respect to the K.F. & F. Foundation did come into effect.  Again, I refused the application.  It was plain that Mr Young was attempting to persuade me to make findings of fact more favourable to him than those made by the Tribunal.  This is entirely illegitimate on an appeal limited to a question of law.  To say, as Mr Young attempted to do, that the legal effect of a document is not a question of fact, is beside the point.  It is simply not open to the Court to controvert findings of fact made by the Tribunal in an appeal of this kind.  The question was not as to the legal effect of the document, it was
as to its admissibility in the appeal.  Plainly, any further oral evidence of Mr Young and the document were both inadmissible. 

The Tribunal’s refusal to allow evidence to be called

37                  Mr Young alleged that he had been denied due process or procedural fairness by being denied the right to call evidence before the Tribunal.  As the transcript of the hearing before the Tribunal indicates, Mr Young attempted to procure the issue of seven or eight summonses, addressed to officers of Centrelink, to require them to attend and give evidence.  He had been frustrated in relation to the issue of the summonses by the Tribunal’s registry.  He complained to the Tribunal.  The gist of his argument was that the evidence of the Department’s officers would show that there had been negligence or incompetence within the Department, which had resulted in the decision to grant him rent assistance.  According to Mr Young, the officers would have “corroborated” his case.  The Tribunal refused to allow the officers to be called.  In so deciding, it made the correct decision.  The evidence Mr Young proposed to lead from them was irrelevant to any issue before the Tribunal. 

38                  No officer of the Department had power to authorise the unlawful expenditure of public funds, whether deliberately or by negligence, incompetence or otherwise.  Section 1239 of the Social Security Act empowered the respondent, or a delegate of the respondent exercising that power, to reconsider an earlier decision if thought fit.  That is what appears to have happened in the present case in February 1999.  It resulted in a decision that Mr Young was not entitled to rent assistance.  It was open to the respondent, or the respondent’s delegate, to make such a decision whether or not the decision to grant rent assistance to Mr Young had been made as a result of negligence, incompetence or otherwise.  The Social Security Act provides the means for redressing the unauthorised expenditure of public funds. 

39                  The attempt to call this evidence seems to have been motivated by Mr Young’s desire to deflect from himself responsibility for the decision to grant him rent assistance.  In truth, as the Tribunal found, that decision resulted from Mr Young’s false statements that he was paying, or obliged to pay, rent.  Whether officers of the Department accepted those false statements knowingly, negligently or incompetently did not matter. 

40                  The purpose of s 1224 of the Social Security Act is to bring about repayments of amounts paid because officers of the Department have not detected the falsity of statements made in support of applications for payments.

Bias on the part of the Tribunal

41                  Mr Young alleged that the Senior Member who constituted the Tribunal approached the case in a manner that would give rise to a reasonable apprehension of bias on her part.  Primarily, Mr Young contended that the Senior Member had a mindset against him and wanted to reach a certain outcome unfavourable to him.  She did not like the form in which his evidence was presented, and attempted to change his case by asking leading questions.  She demeaned and degraded him and behaved oppressively.  Mr Young took me to some pages in the transcript of the hearing before the Tribunal, in an endeavour to make good this point.  The passages disclosed two kinds of approach on the part of the Tribunal.  One is asking questions in the form of propositions, rather than in the form of questions.  The other is expressing views about the validity, or the possible effect, of Mr Young’s purported trusts.

42                  It is common for people asking questions to do so by means of putting forward propositions, to see if the person questioned agrees or disagrees.  In some cases, there can be dangers in the process, if the person questioned is susceptible to suggestion or ready to agree with whatever is put.  The transcript certainly indicates that Mr Young was quite prepared to disagree whenever a proposition put to him did not accord with his view of things.  He did so on many occasions.  He put his point of view in a robust way.  The fact that the interrogative inflection cannot be reproduced in the transcript should not be used to suggest that the Senior Member was attempting to browbeat Mr Young.  Plainly, she was not. 

43                  A couple of the passages to which Mr Young drew attention contained quite lengthy speeches on the part of the Senior Member.  They disclose that she was trying to come to grips with the issues raised by Mr Young’s attempts to establish that he had set up trusts.  She was explaining her difficulties to Mr Young, by way of inviting him to dispel doubts she may have, and giving him an opportunity to persuade her as to his point of view on those issues.  This is a common way in which judges and members of tribunals operate.  Often it is only by exploring an issue in this manner that a court or tribunal member is able to arrive at a correct view on an issue.  Such an approach certainly does not indicate pre-judgment on the part of the person undertaking it.  There is nothing wrong with the expression of tentative views as to outcomes of issues.  As Barwick CJ, Gibbs, Stephen and Mason JJ said in R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 264:

“During the course of argument a judge will often follow the common, and sometimes necessary, course of formulating propositions for the purpose of enabling their correctness to be tested, and as a general rule anything that a judge says in the course of argument will be merely tentative and exploratory.”

In Sun v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71 at 122, Wilcox J (with whom Burchett J expressed agreement on this point) quoted the last part of this sentence from Watson and said:

“This includes questions designed to elicit information or submissions.  Parties are advantaged by learning what is going through the mind of the person hearing their case; this enables them better to target their evidence or submissions.  The proviso, of course, is that the person must be, and remain, willing to be persuaded out of any express or implied tentative view.”

44                  In the present case, the Senior Member was engaged in the process of inviting information or submissions from Mr Young by putting to him tentative propositions, for the purpose of testing their accuracy.  There is nothing to show that she had abandoned her willingness to be persuaded that any view she was expressing was incorrect.

45                  Mr Young’s evidence in chief to the Tribunal occupied 51 pages of transcript.  Cross-examination by the representative of the respondent occupied a further 19 pages.  The passages to which Mr Young took me were found on parts of 14 of those 70 pages.  They did not start until more than seven pages into Mr Young’s evidence in chief.  When the transcript as a whole is examined, it is apparent that the Senior Member was not oppressing Mr Young with questions.  He was not deprived of an opportunity to say whatever he wanted to say.  The allegations of demeaning and degrading are certainly not made out.  Far from there being evidence that the Senior Member was determined to reach a result adverse to Mr Young, it is apparent that she was attempting to explore his case, to see if it had any substance.

46                  The second ground of bias alleged was that the Senior Member’s brother was one of six persons named in a document that was in evidence as potential trustees of the K.F. & F. Foundation trust.  He was one of those to whom no communication about the trust had been made.  In the hearing before the Court, Mr Young hinted at bias on this basis, and then, at a late stage, when I pressed him on the question, informed me of the full circumstances.  It appears that, prior to the hearing before the Tribunal, the Tribunal’s registry wrote to Mr Young, informing him that the person whose name appeared on the list of trustees was the brother of the Senior Member who had been assigned to deal with the case.  The letter asked whether Mr Young had any objection to the Senior Member hearing the case.  Mr Young replied that he did not.  Having been given an opportunity to take this point, and having consented to the Senior Member dealing with the case, Mr Young cannot now take the point.  He has waived it.

47                  Nothing raised by Mr Young makes out a case of apprehended bias on the part of the Senior Member.  No reasonable observer would have apprehended that she was approaching the case in anything other than an impartial manner.  Her behaviour was perfectly correct.

Failure to look at authorities

48                  In the course of the hearing before the Tribunal, Mr Young attempted to cite an earlier decision of the Tribunal relating to another case.  He also attempted to rely on departmental guidelines on how property owned by a trust should be dealt with for the purposes of payments of rent assistance.  He submitted to me that the Tribunal was in error in failing to have regard to these things. 

49                  The Tribunal decided against Mr Young on a number of grounds.  One was its factual findings that he had never established valid trusts in respect of the Dunolly property.  The material on which Mr Young attempted to rely was relevant only if there had in fact been a trust of the Dunolly property.  The factual finding was fatal to Mr Young’s case. 

Other issues

50                  A number of the issues raised by Mr Young were obvious factual issues.  Some were overtly so.  The contention that the Tribunal’s decision was not based in law or facts and was contrary to the evidence was one.  The contention that the Tribunal failed to look at the issues adequately or fairly was another.  The absence of evidence from the Department as to the invalidity of the purported trusts was another.  The suggestion that the Tribunal’s decision was based in opinion and speculation was yet another. 

51                  Mr Young also made attempts to dress up these submissions by constant references to the law, miscarriage of justice, reasonableness and such like.  These were his attempts to convert what were obviously points of fact into questions of law.  They cannot succeed.  The reality is that Mr Young is dissatisfied with the findings of fact made by the Tribunal and would like to overturn them.  He cannot do so in this proceeding, because he has been unable to raise a question of law with respect to those findings. 

52                  Similarly, Mr Young attempted to allege a breach of duty of mutual trust and confidence by Centrelink staff in relation to his rights of privacy, and a failure to provide documents in response to a freedom of information request.  Neither of these allegations has anything to do with the case before the Tribunal, or with this proceeding.  They do not relate to questions of law.

Conclusion

53                  My own examination of the Tribunal’s findings and reasons discloses no error of law on the Tribunal’s part affecting its decision on Mr Young’s case.  Indeed, on Mr Young’s own evidence, it was not at all surprising that the Tribunal took the view that he had not deprived himself of the security of tenure that his status as registered proprietor of the Dunolly property would have given him.

54                  Mr Young’s appeal must therefore fail.  His conduct of it demonstrates an unshakeable conviction on his part that his cause is just.  It is regrettable that Mr Young has compounded his indebtedness by bringing a fruitless proceeding.  Despite Mr Young’s impecuniosity, there is no occasion to cast aside the usual rule that costs follow the event.  The appeal must be dismissed with costs.

Associate:

Dated:              5 September 2003