FEDERAL COURT OF AUSTRALIA

Croker v Secretary, Department of Employment and Workplace Relations (No 2) [2008] FCA 1550

CLAYTON ROBERT CROKER v SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

NSD 1084 OF 2008

GRAHAM J

8 SEPTEMBER 2008

SYDNEY

THE COURT:

1.         Orders that the Notice of Motion filed 21 July 2008 be dismissed.

2.         Orders that the applicant pay the respondent’s costs fixed in the amount of $1,600.

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

REASONS FOR JUDGMENT

1                     The matter presently before the Court is a Notice of Motion filed 21 July 2008 in which the applicant seeks leave to appeal from the judgment of Stone J handed down on 27 June 2008 in proceedings NSD 2548 of 2007.  Her Honour’s judgment was interlocutory within the meaning of s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’) and accordingly an appeal from her Honour’s judgment could not be brought without a grant of leave to appeal. 

2                     It is well established that there are no rigid rules which are to be applied in respect of applications for leave to appeal which detract from the unfettered discretion of the Court, conferred by s 24(1A) of the Federal Court Act.  However, the cases provide general guidance which the Court should normally accept as to how the discretion is to be exercised. 

3                     For a grant of leave to appeal it is necessary for an applicant to establish that the relevant decision of the primary judge is attended with sufficient doubt to warrant its reconsideration by a Full Court, and also that substantial injustice would result if leave were refused, supposing the decision to be wrong (see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400). 

4                     It would appear that in February 2007 the applicant claimed to be qualified for an ‘education entry payment’ under s 665U of the Social Security Act 1991 (Cth).  An education entry payment to which the applicant may have been entitled, if he satisfied the requirements of s 665U, was equal to $208, or some similar amount.  The applicant has been referred to that part of the primary judge’s reasons which refers to the amount of $208, and he does not dissent from the proposition that is there recorded (at [2]). 

5                     Section 665U(1) records a series of cumulative tests that must be met for a person to qualify for an education entry payment.  It provides:

‘665U(1)         A person is qualified for an education entry payment under this section if:

(a)        either:

(i)         the Secretary is satisfied that the person intends to enrol in a full‑time course of education that is an approved course under the ABSTUDY scheme, or an approved course of education or study for the purposes of paragraph 541B(1)(c) or 569A(b); or

(ii)        the person is enrolled in such a course; and

(b)        immediately before starting the course of education:

(i)         the person is receiving a newstart allowance; and

(ii)        the person had been receiving income support payments in respect of a continuous period of at least 12 months (whether or not the kind of payment received has changed over the period, and whether the period or any part of it occurred before or after the commencement of the section); and

(c)        the person:

(i)         ceases to be qualified for newstart allowance because the person takes part in the course of education; or

(ii)        is not qualified for youth allowance as a full‑time student, austudy payment or payments under the ABSTUDY scheme because the person takes part in the course to satisfy the activity test under section 601 or to comply with a Newstart Activity Agreement; and

(d)        the person has not, within the last 12 months, received a payment under this Part.’

6                     As is recorded in the reasons for judgment of the primary judge, from 1994 to 2006 the applicant received a disability support pension.  In July 2006 that pension was terminated by Centrelink and he began receiving the newstart allowance which is an unemployment benefit. 

7                     It would appear that the applicant was refused an education entry payment whereupon he appealed to the Social Security Appeals Tribunal.  On 8 August 2007 that Tribunal held that the applicant was not entitled to an education entry payment.  Thereafter, the applicant instituted proceedings in the Administrative Appeals Tribunal which, on 18 December 2007, affirmed the decision of the Social Security Appeals Tribunal. 

8                     A party to a proceeding before the Administrative Appeals Tribunal is entitled to receive a statement, in writing, of the reasons of the Tribunal for its decision (see s 43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the Administrative Appeals Tribunal Act’)).  By a letter dated 29 January 2008, the Administrative Appeals Tribunal provided the applicant with a written copy of its decision which recorded, in three paragraphs, its reasons for decision.  Those reasons, in turn, referred to a transcript made of the oral reasons provided by the Tribunal member, a copy of the transcript being attached to the written statement of the Tribunal’s reasons which were provided to the applicant.  Passages from the transcript of the Tribunal member’s oral reasons were quoted extensively by the primary judge at [14] of her Honour’s reasons.  These included the Tribunal member saying:

‘… I am still of the opinion that you don’t satisfy subsection (c), in that I am not satisfied that you ceased to be qualified for Newstart Allowance, and I am also not satisfied of the alternative.  … So the end result of that is that I am not satisfied that you have met the requirements to satisfy section 665U for receipt of an Education Entry Payment. …’

9                     The primary judge was critical of the manner in which a statement in writing of the reasons of the Tribunal for its decision was provided to the applicant.  However, as her Honour observed, the applicant did not raise any objection to the form in which those reasons were provided. 

10                  Section 44 of the Administrative Appeals Tribunal Act provides for limited rights of appeal to this Court.  Section 44(1) of the Act provides:

‘A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.’

11                  Referring to what is meant by ‘on a question of law’ the primary judge said at [16]:

‘… This means that the question of law is the subject of the appeal; TNT Skypack International (Aust) Pty Ltd v Commission of Taxation (Cth) (1988) 82 ALR 175 at 178‑179 per Gummow J. …’

Her Honour proceeded to say at [17]:

‘By a “proper question of law” the respondent means not only a question of law strictly so called but also one on which an appeal from the AAT may be founded.  The question must be one to which a favourable answer would reveal an error affecting the AAT’s decision concerning Mr Croker; Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 327.  As Branson J and I remarked in Birdseye at 325: 

It is in the specification of the grounds relied upon in support of the orders sought that, … one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal.’

12                  The Amended Notice of Appeal which was considered by the primary judge was one filed 13 March 2008.  In paragraph 2 it recorded the questions of law raised on the appeal.  It was expressed as follows:

‘2.        THE QUESTIONS OF LAW raised on the appeal are: -

(i.)        Do the words of the Social Security Act 1991 (Cth) – s 665U ‘A person is qualified for an education entry permit under this section’ include:

(a)        A student not attending all classes but enrolled in a course that its mode of delivery from the education supplier is full time mode.

(b)        A person that ‘intends to enrol in a full-time course of education that is an approved course study for the purposes of paragraph 541B(1)(c) or 569A(b) of the act, or a person that is enrolled in such a course;

(c)        A person immediately before starting the course of education had been receiving income support payments in respect of a continuous period of at least 12 months from the Respondent;

(d)        A person that has been notified by the Respondent that they ceases (sic) to be qualified for unemployment allowance because the person takes part in a full time course of education;

(e)        A person that has signed an Activity Agreement with the Respondent and the person takes part in the course to satisfy the activity test under section 601 of the act or to comply with a Newstart Activity Agreement; and

(f)        A person that has not, within the last 12 months, received a payment under the Social Security Act (1991) (Cth) -s 665U.’

13                  The primary judge concluded that no relevant question of law arose in respect of the issue raised by subparagraph (d).  Before doing so her Honour said at [19]:

‘… In this case the facts referred to in the alleged question of law are, with one exception, not relevant to the AAT’s decision because they are not facts on which the decision was based. …’

Her Honour proceeded to say at [21]:

‘The amended notice of appeal lists six grounds of appeal which consist merely of assertions that the AAT came to the wrong conclusion or an unjust conclusion or made other unspecified errors. …’

14                  Her Honour concluded that there was nothing in the Amended Notice of Appeal that enlivened the jurisdiction of the Court under s 44(1) of the Administrative Appeals Tribunal Act and therefore the appeal from the AAT must be dismissed as incompetent.  The primary judge ordered the applicant to pay the costs of the respondent.  Before reaching these conclusions, her Honour cited with approval a passage from the judgment of Branson J in Comcare v Etheridge (2006) 149 FCR 522 at 528, where her Honour said: 

‘A broad enquiry as to the construction and operation of statutory provisions is not a question of law within the meaning of s 44(1) of the AAT Act.  Moreover, by inviting the Court to engage in such a broad and hypothetical inquiry the purported question of law extends beyond any controversy between the parties.  It is for this reason incapable of constituting a “matter” and thus beyond the competence of the Court …’

15                  If leave to appeal were to be granted in this matter it would be with a view to allowing the applicant to file an Amended Notice of Appeal which would take the form of the Notice of Appeal which he filed on 15 July 2008 before instituting the current application for a grant of leave to appeal.  The grounds of appeal specified in the Notice of Appeal were four in number.  When asked by me whether that was the Notice of Appeal that he wished to file, were leave to be granted, the applicant indicated that he would wish to make an amendment to ground of appeal 3.  I will hereafter set out the grounds of appeal, placing the modifications in bold so that the original form of Notice of Appeal can be distinguished from the Amended Notice of Appeal which the applicant now wishes to rely upon.

The grounds of appeal were:

‘1.        The orders are not in the public interest;

2.         The Administrative Appeals Tribunals findings are found to be difficult in their conclusion.  (paragraph 5 of the judgment of the Federal Court of Australia 27/6/2008);

3.         The Legal Services Directions issued pursuant to the Judiciary Act 1903 (Cth) s. 55ZF provide that the Commonwealth act as a model litigant, it is alleged that the Commonwealth has failed to do so on the grounds that Appendix B of the Legal Services Directions 2005 gives the respondent the obligation not to rely upon technical defences unless the Commonwealth or the agency’s interests would be prejudiced by the failure to comply with a particular requirement.: and

4.         It is alleged that the judgment of the 27/76/2008 (sic) instils a gross miscarriage of justice in that if the correct application of the Social Security Act 1991 (Cth) s. 665U and or the Administrative Appeals Tribunal Act 1975 (Cth) s. 44 was applied at (sic) should have found eligibility of the Education Entry Payment that was claimed in February 2007 from the Respondent.’

16                  The applicant has failed to direct the Court’s attention to any aspect of the primary judge’s reasons for judgment, in dismissing the appeal which was before her Honour and finding that no questions of law had been raised, that suggests that her Honour erred in dismissing the appeal as incompetent.  It is apparent from the grounds of appeal upon which the applicant would now wish to rely that none of them are directed at potential errors in her Honour’s reasoning such that an injustice would result if leave to appeal were refused.  There is nothing to suggest that her Honour’s decision on the matters that she was called upon to decide may be wrong.

17                  As to whether or not substantial injustice would result if leave were refused I would return to the amount in issue in this case, namely $208.  It does not seem to me that a substantial injustice would result if leave to appeal were refused, even if one were to suppose that her Honour’s decision was wrong. 

18                  In addressing the Court the applicant placed emphasis upon failures on the part of the Administrative Appeals Tribunal to find facts favourably to him.  As for the proposed amendment to the draft notice of appeal, I agree with the submission of the solicitor for the respondent that this is not a case where a procedural technicality may be overlooked.  This is a case where there are strict requirements imposed by the legislation for there to be an entitlement to an education entry payment and the matter would not fall within the Legal Services Directions to which reference has been made by the applicant.    

19                  In all the circumstances the application for leave to appeal should, in my opinion, be dismissed. 

Associate:

Dated:         16 October 2008