FEDERAL COURT OF AUSTRALIA

Croker v Secretary, Department of Education, Employment and Workplace Relations (No 3) [2008] FCA 1473

ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal affirming a decision of the Social Security Appeals Tribunal that applicant could be required to enter a Newstart Activity Agreement – Notice of Appeal failed to disclose question of law – applicant sought to raise fresh ground that judgment annexing transcript of oral reasons did not constitute proper reasons for decision – reasons for decision were clear – other proposed fresh ground not in issue before AAT – appeal dismissed as incompetent  

Administrative Appeals Tribunal Act 1975 (Cth) s 43

Social Security Act 1991 (Cth) ss 605, 606

Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321 applied

Croker v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 971 referred to

Croker v Sydney Institute of TAFE (State of New South Wales) [2003] FCA 942 followed

Jordan v Australian Postal Corporation (2007) 99 ALD 303 referred to

Martin v Australian Postal Corp (1999) 29 AAR 420 applied

CLAYTON ROBERT CROKER v SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS (NO 3) 

NSD 1279 OF 2008

JACOBSON J

25 SEPTEMBER 2008

SYDNEY

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER ALLEN

THE COURT ORDERS THAT:

1.                  The Notice of Appeal is dismissed as incompetent.

2.                  The applicant pay the respondent’s costs of the proceeding fixed in the amount of $700.00.

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

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER ALLEN

REASONS FOR JUDGMENT

1                     On 14 August 2008 Mr Croker filed a document headed Notice of Appeal which purports to appeal against a decision of the Administrative Appeals Tribunal constituted by Mr M.D. Allen, Senior Member, given on 21 July 2008.  The respondent objects to the competency of the appeal on the ground that the Notice of Appeal does not disclose a question of law.  The respondent filed a Notice of Objection to Competency on 23 September 2008.  Ms Watson moves on the Notice of Objection to competency this morning. 

2                     I will set out later in my reasons for judgment the purported questions of law stated in the Notice of Appeal.  Before doing so it is necessary to refer briefly to the history of the matter. 

3                     On 9 January 2008 the Social Security Appeals Tribunal decided to affirm a decision of Centrelink made on 15 August 2007, which had been further affirmed by a Centrelink authorised review officer on 8 November 2007.  The decision of Centrelink was to require Mr Croker to enter into a Newstart Activity Agreement with MAXNetwork Employment.

4                     The power to make such an order is found in s 605 of the Social Security Act 1991 (Cth) as amended.  That section provides inter alia that if a person who has made a claim for or is in receipt of a Newstart allowance is not a party to a Newstart Activity Agreement the Secretary may require the person to enter into such an agreement. 

5                     The decision of the Social Security Appeals Tribunal was sent to Mr Croker on 16 January 2008.  I will set out below the salient paragraphs of the reasons for decision of the Social Security Appeals Tribunal. 

1.      After a period of four months when he was granted a temporary exemption from the activity test, Centrelink made a decision requiring Mr Croker to enter into a new[start] activity agreement.

2.      Mr Croker objected and on 10 September 2007 sought a review of the Centrelink decision.  This is an appeal from the 8 November 2007 decision of the Authorised Review Officer affirming the Centrelink decision

…

40.  Mr Croker understands that section 605(1) of the Social Security Act 1991 authorises the Secretary of the Department to ‘require a person who is not a party to a newstart activity agreement to enter into such an agreement if the person is receiving or has made a claim for, a newstart allowance’.

41.  He is also aware that under section 606(1) of the Act ‘a newstart activity agreement with a person is to require the person to undertake one or more activities that the Secretary regards as suitable for the person’.

42.  Section 606(3) requires: ‘in considering whether to approve the terms of an agreement with a person, the Secretary is to have regard to the person’s capacity to comply with the proposed agreement and the person’s needs’.

43.  Some of the matters to be considered in assessing a ‘person’s capacity to comply with an agreement are set out in section 606(4)(a), ‘the impact of any disability, illness, mental condition or physical condition of the person on the person’s ability to work, to look for work or to participate in training activities’ (section 606(4)(aa)), the state of the ‘local labour market’ and the ‘participation opportunities available to the person’ (section 606(4)(b) & (c)).

44.  These matters were not considered in the authorised review officer’s decision, probably because Mr Croker did not raise them directly as issues in his appeal.

…

56.  A complicating factor in Mr Croker’s case is that the question of his capacity to engage in some or all of the tasks assigned in the 5 December 2007 activity agreement is a matter that is currently on appeal before the Federal Court.  Common practice when a matter is on appeal is for courts and tribunals to make orders maintaining the status quo between the parties to the appeal (Considered by Mason ACJ in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 and by Gleeson CJ in ABC v Lenah Game Meats Pty Ltd [2001] HCA 63).  To do this in Mr Croker’s case may result in a considerable debt to Centrelink.

57.  If the status quo were to be maintained in this case, it would result in Centrelink continuing o pay Mr Croker disability support pension.  Rejection of his appeal by the Court could then result in a considerable debt to Centrelink.

58.  The same outcome is possible if Centrelink were to suspend the activity test and continue to pay newstart allowance to Mr Croker pending the outcome of the Federal Court appeal, for the effect of rejection of his appeal may be that he is ineligible for exemption for the activity test, and again he may find that he faces a substantial debt if the Court finds against him.

59.  These matters are not before the Tribunal on this occasion and we do not know what information if any, additional to the 2006 job capacity information, will be put to the Federal Court.

60.  On the basis of the information Mr Croker has put before the Tribunal on this occasion we reject his appeal and affirm the Centrelink decision that he should enter into an agreement with MAXNetwork and comply with the terms of that agreement.

6                     The decision of Senior Member Allen was given on 21 July 2008.  The Senior Member stated in [2] of his reasons for decision that the oral reasons for his decision were transcribed by Auscript.  He said that:

Whereas those oral reasons may reflect the inelegance of an ex tempore decision, they are in fact the reasons for the said decision.

7                     In [3] of his reasons the Senior Member stated that the transcript was annexed to the reasons for decision and furnished to Mr Croker and the respondent as the reasons for the Tribunal’s decision.  The transcript which was annexed comprises one page which is set out at page 15 of Ms Watson’s affidavit.  The relevant passage of the transcript is as follows:

The difficulty in this matter is that the tribunal can only review decisions of the Social Security Appeals Tribunal.  As set out in that Decision, the question before the Social Security Appeals Tribunal was the decision on 8 November 2007 to require the Applicant to enter into the Newstart Agreement.  The question regarding the terms of that agreement, and whether it was a suitable agreement for the Applicant, have never been considered either by an Authorised Review Officer or by the Social Security Appeals Tribunal, and, consequently, are not before me today.  The only question before me is whether the Applicant could be required to enter into the Newstart Activity Agreement, and what is abundantly clear from subsection (6) [of] section 605 of the Social Security Act 1991 is that he could be so required.  In these circumstances, therefore, the decision under Review is affirmed.  I think you understand all that, don’t you?

8                     It is to be noted that following that paragraph Mr Croker is recorded as having said:

I do, Member, thank you.

9                     The Notice of Appeal from the decision of the Administrative Appeals Tribunal states the following as questions of law and errors of law raised on the appeal.

(i) Pursuant to the Social Security Act 1991 (Cth) I am still eligible for the payment of the Disability Support Pension.

(ii) The Respondent fails to satisfy the Social Security Act 1991 (Cth) s 606(4) in its acts and omissions in relation to medical and other information of the Applicant.

(iii) The Respondent fails to satisfy the Social Security Act 1991 (Cth) s 606(4) in its acts and omissions in regard to the parties that are to be bound by the Activity Agreement.

(iv) The Activity Agreement of the 5/12/2007 was signed under duress and therefore invalid.

10                  Ms Watson sent an email to Mr Croker on 23 September 2008 enclosing by way of service the Notice of Objection to Competency and also enclosing her affidavit in support.  The email asked Mr Croker to note that the respondent would ask for the issue of competency to be determined as soon as possible and if the Court were disposed to do so for the objection to be heard on Thursday, 25 September 2008. 

11                  The email also pointed out that the respondent was serving the documents by email due to the fact that Mr Croker continues to use as an address for service an address “which [he is] well aware is not a proper address for service.”  The address for service given by Mr Croker in his Notice of Appeal is Ground Floor, Suite 1, 1 Oxford Street, Darlinghurst, NSW, 2000.  It also includes reference to Mr Croker’s email address. 

12                  When the matter was called on this morning Ms Watson sought to move on the Notice of Objection to Competency notwithstanding Mr Croker’s objection to it.  Mr Croker informed me that he had only received the email when a copy was handed to him in Court today.  However, Ms Watson informs me, and I have no reason to doubt the fact, that she had no record of the email having “bounced.” 

13                  It seems to me in the circumstances that it is appropriate to proceed this morning to deal with the notice of objection and I have heard full argument on it.  My reasons for doing so are as follows.

14                  First, Ms Watson observed that the address given is not a proper address for service.  Indeed, in Croker v Sydney Institute of TAFE (State of New South Wales) [2003] FCA 942 Bennett J found that this very address does not comply with the Rules of Court: see in particular [9] and [25] of her Honour’s decision. 

15                  Second, it seems to me to be plain that either the email was received by Mr Croker or, if not, he does not check his emails notwithstanding the fact that the email address appears in his purported address for service in the Notice of Appeal. 

16                  Third, Mr Croker is well on notice of the fact that an appeal from the Administrative Appeals Tribunal must be on a question of law.  On 27 June 2008 Stone J dismissed a proceeding brought by Mr Croker on that very ground: see Croker v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 971 (Croker v Sec, Dept EEWR). 

17                  Fourth, Ms Watson informs me that there are a number of unsatisfied costs orders made against Mr Croker.  One such order is an order that Mr Croker pay the costs of an unsuccessful application which was heard by Branson J.  That decision is the matter which was referred to in [56] of the reasons for decision of the Social Security Appeals Tribunal (set out above).  Also Ms Watson refers to an unsatisfied order for security for costs of an application for leave to appeal which Mr Croker has brought against the decision of Branson J.  It appears that there are also other unsatisfied costs orders. 

18                  Mr Croker told me this morning that he did not have sufficient time to prepare for the hearing of the objection to competency but I am satisfied that he is on sufficient notice of the need to be able to deal with the matter.  Indeed, it is implicit in his approach to the application today that he accepts that the questions of law stated in the Notice of Appeal do not raise questions of law within the well known authorities of this Court.  Those authorities include the decision in Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321 at 327.  Stone J referred to the authorities at [16]ff in her decision to which I referred above. 

19                  It is plain in my view that the questions of law do not comply with the principles stated in the authorities.  They are simply not questions of law.  Moreover, they are not even relevant to the issues raised before the Administrative Appeals Tribunal.  The purported questions cavil with the issue of whether Mr Croker is eligible for the Disability Support Pension.  They are not relevant to any issue which was raised before the Administrative Appeals Tribunal. 

20                  Notwithstanding this, Mr Croker sought time to enable him to file an Amended Notice of Appeal raising two purported questions of law.  The first question he seeks to raise is whether or not the delivery of the reasons by Senior Member Allen in the form of his judgment which incorporates a transcript can be said to be reasons for decision given in accordance with s 43(2) of the Administrative Appeals Tribunal Act 1975 (Cth).  In Martin v Australian Postal Corp (1999) 29 AAR 420, Burchett J at 428 observed that the essence of the requirement that the Tribunal give reasons is that its decision must be understandable.  His Honour referred to the purposes that are served by this rule. 

21                  In Croker v Sec, Dept EEWR [2008] FCA 971,Stone J observed at [7] that these purposes are recognised in s 43(2B) of the Act, which provides that where the Tribunal is requested under s 43(2A) to give reasons, the reasons are to include the Tribunal’s findings on material questions of fact and a reference to the evidence or other material on which those findings were based.  Her Honour referred to a comparatively recent decision of Buchanan J in Jordan v Australian Postal Corporation (2007) 99 ALD 303 at 314 on this issue. 

22                  In my opinion, the statement made by Senior Member Allen in [2] and [3] of his reasons for decision and the extract of the transcripts which was annexed to the reasons for decision explain quite clearly the reasons for the Administrative Appeal Tribunal’s decision.  I am therefore satisfied that no question of law or any error of law is to be found in the approach adopted by Senior Member Allen. 

23                  It is to be noted that in the matter before Stone J, her Honour had some misgivings about the process that was adopted in that case in which the Tribunal provided a lengthy transcript of the hearing as its reasons for decision.  The reasons given in the present case do not contain any of the possible flaws to which Stone J referred at [5]ff of her reasons for judgment.  In that case, there were difficulties in discerning the relevant findings on which the conclusion was based.  No such difficulty arises in the present matter. 

24                  It is also to be noted that the very matter which Mr Croker wishes to now raise by way of appeal was, of course, adverted to in the decision of Stone J.  Had Mr Croker wished to raise the point, it was perfectly open to him to do so in his initial Notice of Appeal.  There is no explanation for the fact that he did not do so. 

25                  The second purported question of law which Mr Croker seeks to raise on an Amended Notice of Appeal is based upon the provisions of s 606 of the Social Security Act.  That section deals with the terms upon which a person is to be required to undertake the stipulated activities.  Section 606(2) provides that the terms of an agreement which include the specification of the activities that the person is to be required to undertake are to be approved by the Secretary.  The matters which Mr Croker wishes to raise are outside the parameters of the matters which were raised before the Administrative Appeals Tribunal because they go to the question of the terms of any such agreement. 

26                  Mr Croker also contends that the Administrative Appeals Tribunal proceeded upon a wrong factual basis.  However, I cannot see that those matters arise from the decision of the Administrative Appeals Tribunal, which had before it a very narrow question which is dealt with in the paragraph of its reasons which I have set out above. 

27                  In my view, for the reasons set out above, there is no injustice whatsoever in dismissing the Notice of Appeal as incompetent.  There is no basis for remitting it to the Administrative Appeals Tribunal to determine any questions of fact as was suggested by Mr Croker.  This is because the Administrative Appeals Tribunal had before it a very short point.  It did not have before it questions regarding the terms of the agreement or whether it was suitable.  As the Senior Member stated, the only question before him was whether Mr Croker could be required to enter into the Newstart Activity Agreement.  He observed that it was abundantly clear from s 605(6) of the Social Security Act that he could be so required.  Accordingly, there is no possible basis for remitting the matter to the Administrative Appeals Tribunal. 

28                  It follows that I dismiss the Notice of Appeal as incompetent.  I order the applicant, Mr Clayton Robert Croker to pay the costs of the respondent of the proceedings fixed in the amount of $700.

Associate:

Dated:         7 October 2008