FEDERAL COURT OF AUSTRALIA

Pickering v Chief Executive Officer of Centrelink [2006] FCA 477

JEFFREY PICKERING v CHIEF EXECUTIVE OFFICER OF CENTRELINK

WAD 254 OF 2005

SIOPIS J

28 APRIL 2006

PERTH

THE COURT ORDERS THAT:

1.          The respondent’s notice of motion filed on 2 November 2005 be dismissed.

2.          There be no order as to costs.

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

REASONS FOR JUDGMENT

1                     This is an application for the summary dismissal of the applicant’s application brought by the respondent under O 20 r 2 of the Federal Court Rules.

2                     The respondent’s application is brought on the basis that the applicant’s claim discloses no reasonable cause of action.  Mr Macliver, who appeared on behalf of the respondent, argued that there are two possible causes of action open to the applicant, namely, applications for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’) and under s 39B(1) of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’), but each required that there be a decision made under an enactment.  Counsel for the respondent submitted that there was no such decision, and that, therefore, there is no jurisdiction in the Court to determine the applicant’s claim and the claim should therefore be summarily dismissed.

3                     Counsel for the respondent relied upon the affidavit of Mr Bruce John Panton to support his argument that there was no decision made.  Mr Panton was the officer of the respondent who dealt with the applicant.

4                     This is a very unusual case because the application made by the applicant, who is unrepresented, consists of only two sentences, namely:

‘I had a job to go to.  Centrelink refused to help me get a job.

I demand compensation of $520,000.’

5                     At the first directions hearing on 6 October 2005, in order better to understand the applicant’s claim, I made orders that the respondent file relevant documents relating to the applicant’s complaint.  The respondent filed documentation which sets out the relevant events.  Among the documents filed by the respondent is a document headed ‘Decision Statement’ of an authorised review officer, Mr Joe Gentelli.  The documents show that the applicant, who was an existing client of the respondent, is aggrieved by the refusal of the respondent in March 2005 to advance him monies by way of an Electronic Benefits Transfer which he needed for a bus fare to Albany to permit him to take up a firm job offer in that city, that he has complained to the respondent about this refusal, and that complaint was considered and dismissed by Mr Gentelli.

6                     In this case the applicant is unrepresented and that imposes a burden upon the Court to render such assistance as it can reasonably render.  In addition, there is authority to the effect that in considering whether to grant summary judgment, the Court should not confine itself only to the claim which has been made by the applicant, but the Court should also have regard to whether, on the material which is before the Court, there are other claims which could possibly be made.  In those circumstances, I must take into account the documentation which has been filed by the respondent pursuant to my order of 6 October 2005, and also the affidavit of Mr Bruce John Panton of 26 April 2006.

7                     When the Court considers the question of whether to dismiss summarily an application, it must be satisfied that the case which is being advanced by the applicant is so untenable that there is no reason why the matter should go to trial.  The burden, therefore, for the respondent is onerous.

8                     I have to consider whether there is an arguable case that the Court has jurisdiction to consider and decide this controversy.  Counsel for the respondent, has argued that the Court has no such jurisdiction because there was no decision which had been made by Mr Panton which could ground relief under the ADJR Act or s 39B of the Judiciary Act.

9                     There is attached to Mr Panton's affidavit, a memorandum of his recollection of the conversation on the day in question with the applicant.  The memorandum states:

‘Mr Pickering asked me how he'd go getting an advance for a bus ticket to get to the job.  I can't recall whether this was a Monday or a Tuesday, but I do recall telling Mr Pickering that he had deductions coming out of his fortnightly payments for rent and other things and since he had only just been paid for the previous fortnight, it was impossible to arrange an advance, until these deductions were covered; he agreed.’

10                  Mr Panton also says that he told the applicant that he should see if he could obtain assistance elsewhere and that he should come back later in the afternoon and in the interval Mr Panton would see whether there were other ways in which he could assist the applicant and that he gave the applicant his phone number.

11                  Counsel for the respondent has submitted that Mr Panton’s conduct in dealing with the applicant in March 2005 amounted to no more than the giving of advice and that no decision to refuse to make the payment of the bus fare was made.  There was, therefore, no decision capable of review.

12                  In his Decision Statement, the authorised review officer, Mr Gentelli, has adopted the same reasons as relied upon by Mr Panton to explain why the applicant was denied the bus fare payment.  Mr Gentelli says in the document:

‘In your case that meant that the system would not allow an EBT until you had accrued an entitlement of more than $155.40.  That would not occur until 6 days in to your payment cycle and there would not have been sufficient accrual to cover a bus fare to Albany until 7 days in your payment cycle.  For the purposes of this review however the simple fact is that with the deductions requested by yourself the system would not have allowed the issuing of an EBT to you on the Tuesday when you requested it.’

13                  However, in that document, Mr Gentelli has characterised the conduct of Mr Panton in refusing to make the payment to the applicant on those grounds as the making of a ‘decision’; and Mr Gentelli has relied upon the reasons referred to above as justifying the ‘decision’ made by Mr Panton.

14                  So there is a possible conflict between Mr Panton and Mr Gentelli as to what occurred when Mr Panton dealt with the applicant on the relevant day in March 2005.  I say that it is a ‘possible conflict’ because it is also possible that the apparent differences can be reconciled once both persons have given evidence.  I would add that the applicant told me today that he disputes the version of events described above by Mr Panton.

15                  There is, therefore, a factual dispute as to what occurred on the relevant day, and there is a dispute as to whether Mr Panton made a decision for the purposes of supporting a possible application for review under the ADJR Act and s 39B(1) of the Judiciary Act.  It follows that I am satisfied that there is a factual dispute which needs to be resolved at trial.  I cannot, therefore, accept the respondent’s submissions that the application should be dismissed on the basis that there is no tenable case that Mr Panton made a decision which is potentially reviewable under the ADJR Act or s 39B(1) of the Judiciary Act.

16                  In any event, s 39B(1A)(c) of the Judiciary Act, arguably provides a further jurisdictional basis upon which the Court may determine the controversy between the parties.  The subsection provides that:

‘The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

…

(c)     arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.’

17                  This subsection was considered in the case of Boys v The Australian Securities Commission (1997) 24 ACSR 1, where Carr J observed at 12:

‘In my view, the matter or controversy before the court is whether the Commission has lawfully exercised its powers and is proposing lawfully to exercise its powers under the ASC Act.  The very subject matter of that controversy owes its existence to the ASC Act.  The whole case revolves around and depends upon the proper construction of the ASC Act and whether, on the construction advanced by the applicants, the respondents are to be restrained from engaging in further unlawful conduct.’

18                  In my view, the controversy before the Court is one which can arguably be characterised as arising under the Social Security (Administration) Act 1999 (Cth) (‘the Act’) within the meaning of s 39B(1A)(c) of the Judiciary Act.  This is because the controversy arises in the context of whether, on the proper construction of the Act, Mr Panton, whilst acting in his capacity as an officer under the Act, acted lawfully in advising the applicant as to the effect of the Act, and in declining to make an advance payment to the applicant in response to the applicant’s request for such payment.  A major question which arises in this context is whether on the proper construction of the Act, Mr Panton was correct in advising the applicant that he was not able to make the payment because the deductions which were coming out of his fortnightly payments for rent and other things had only just been paid the previous fortnight, and it was impossible to arrange an advance until these deductions were covered; and whether it was lawful, therefore, to decline to make the payment on that basis when requested to do so by the applicant.

19                  In my view, it is arguable that this controversy over the proper construction of the Act would afford a sufficient basis upon which a declaration might be sought as to the proper construction of the Act and whether Mr Panton acted lawfully in making the statements that he did to the applicant and in declining to make the payment to the applicant.  It is also arguable that the applicant could, as part of the accrued jurisdiction, bring a claim for damages in negligence.

20                  In light of the foregoing, I also am unable to accept the respondent’s submission that the application should be summarily dismissed because any relief that might otherwise be available to the applicant would be withheld on the grounds that it would be futile to grant that relief.

21                  It follows that I am satisfied that there are potential causes of action available to the applicant which could arguably be brought within the jurisdiction of this Court.  It also follows that I dismiss the respondent’s application for summary dismissal of the applicant’s application.

Associate:

Dated:              1 June 2006