FEDERAL COURT OF AUSTRALIA

Burgess v Secretary, Department of Family, Housing, Community Services, Indigenous Affairs [2009] FCA 861

DARREN JOHN BURGESS v SECRETARY, DEPARTMENT OF FAMILY, HOUSING, COMMUNITY SERVICES, INDIGENOUS AFFAIRS

NSD 701 of 2009

GRAHAM J

3 AUGUST 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The proceeding be dismissed as to the whole of the relief claimed by the applicant in the Notice of Appeal filed 10 July 2009.

2.                  The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     This matter comes before the Court pursuant to what is described as a Notice of Appeal filed 10 July 2009.  The applicant, Darren John Burgess, is a litigant in person.  By the Notice of Appeal he purports to institute an appeal in accordance with s 44 of the Administrative Appeals Tribunal Act (‘the AAT Act’).  One of the requirements of a competent appeal to this Court from a decision of the Administrative Appeal Tribunal is that the Notice of Appeal identify a question of law to which the appeal relates.  In the Notice of Appeal the applicant gives as his address 1139 Pacific Highway, Ulmarra, NSW 2462.  Against the word ‘Telephone’ he has inserted ‘none’.

2                     The appeal has been listed before me for directions at 9:30am today.  The name of the applicant has been called three times outside the Court and he has failed to appear. 

3                     The form of Notice of Appeal which the applicant has completed is one which contains five typed paragraph headings (1 to 5) with space for material to be inserted under the typed words which are produced in the form.  Paragraphs 2, 3, 4 and 5, have as their headings, ‘2.  The Questions of Law’, ‘3.  Orders Sought’, ‘4.  Grounds’ and ‘5.  Findings of Fact’.  It is difficult to discern from a reading of the handwritten material inserted into the form what material goes with what heading.  The written words seem to run on notwithstanding that they appear under the separate typed headings.

4                     Doing the best I can I would interpret what has been written as follows:

‘Did the application and process applied completed in just fairness and constituted guidelines followed in order not to cause damages and or mislead the diagnosed compensable customer qualified also as heir & pursuant to 3IN ordinance 4. advance of 6% annual payment rate be noted an entitlement to this recipient given issue date 16.4.02.  1 July apply maximum entitlement claim and pay $178,000.00 to the applicant his one share plus full pension no R/A $575.80.  Errors practiced found applied diagnosis to qualify for a grant of dissability (sic) support pension backdates to 1991 start thus THe single homeowner. share invested as real estate property asset or money held for appropriate ownership. total expenditure of investment, compensations and grants for first homeowners rights exceed allowability of the claim only $178,000.00 plus continual F/N pension.  Pursuant to Local Government Acts housing + pension is a maximum entitlement.

The decisions are wrong, ie. being subject to stays in out of time codes and law with rejected access to grant entitlementS maximiSed.  AAT give note appeal is limited to a question and or error of law thus DFHCSIA has made the mistake, of wrong opinion & conduct & amounts of inNaccuracy (sic) IN calculation and measurements attained error.’

5                     The Court’s file includes a communication apparently received on 22 July 2009, being a communication to the Court of 20 July 2009, headed

‘Re:     Filed Appearance NSD 701 / 2009 ref 40 / 23 Nov. 2006.

*Application to have determination made on the papers only –

Orders to be made in Applicants absence 3.8.09.

Index and Supplementary Papers being compiled.’ 

The communication apparently signed by Mr Burgess, the applicant, reads under the heading mentioned:

‘SUBJECT TO LOCATION OF COURT AND TRAVEL TIME SCHEDULES TO ATTEND THE APPLICANT SHALL FIND DIFFICULTY PRIMARILY TO COSTS INVOLVED ONLY RECEIVING A D.S.P. DISSABILITY (sic) SUPPORT PENSION ALLOWANCE.

IT IS OF THE FINDINGS OF FACTS AND ERROR THE APPLICANT ALSO BE EXEMPT FROM RECEIVING ANY ORDERS FOR COSTS.

HE NOTES BEFORE TAKING ANY STEP IN THE PROCEEDING ASKS THE COURT AND REGISTRY ARE THERE FURTHER DOCUMENTS THE COURT CAN SUPPLY TO PLEASE ALL DIRECTIONS.

COULD A DOCUMENT CERTIFICATE OF CORRECTNESS, BE SUPPLIED OR WILL YOU ACCEPT ONE FROM THE APPLICANT DRAWN BY HIMSELF WITH OWN STATEMENT AND SIGNATURES.

…’

6                     By a letter dated 22 July 2009, a Deputy District Registrar of the Court responded to the applicant’s communication.  The Court’s letter included:

‘1.        Despite your advice that you may not appear in person at the first directions of this matter on 8 (sic) August 2009, I confirm that orders may be made in our (sic) absence, including orders as to costs.  Alternatively, if you are able to attend by telephone you should advise the Court immediately (including your telephone number details) so that this request can be considered by the Judge and if approved arrangements put in place for you to attend by that mode.

…’

7                     It is unfortunate that the Court’s letter of 22 July 2009, referred to the first directions of the matter as being on Saturday next, 8 August, rather than today, Monday 3 August, as indicated in the form of Notice of Appeal.  I would note, however, that the Notice of Appeal makes it quite clear that the first directions will take place at 9:30am on Monday 3 August 2009, that is to say today.  It is also apparent that the applicant has caused a copy of his Notice of Appeal with that date included in it to be served upon the respondent such that the respondent has been able to file a Notice of Appearance on Friday last, 31 July, and the respondent is represented before the Court today by Ms Nanson from the Australian Government Solicitor’s Office.

8                     It is clear that by letter dated 28 July 2009 to the Court, the applicant confirmed his advice that he had no available telephone.  He said in his letter to the Court:

‘There is no alternative as offer to advise Court of telephone attendance cannot be accomplished as there is no phone at occupying address.’

9                     The applicant not having appeared today, the Court has power to make orders under Order 35A of the Federal Court Rules.  An applicant is in default within the meaning of Order 35A if the applicant fails to attend a directions hearing, which has occurred in this case.  The powers of the Court in such circumstances include the power under rule 3(1)(a) of Order 35A to order that the proceeding be dismissed as to the whole of the relief claimed by the applicant. 

10                  When Ms Nanson appeared for the respondent this morning, she drew the Court’s attention to a notice of objection to competency filed earlier today which provided: 

‘The Respondent objects to the competency of this appeal purportedly brought under s.44 of the Administrative Appeals Tribunal Act (“the Act”) on the ground that the notice of appeal does not disclose a question of law as required by s.44(1) of the Act.’

11                  Were it not for the history of this matter, one might be inclined to provide some sort of indulgence for the applicant who has failed to appear.  However, the Notice of Appeal is so inadequate that, in my opinion, it is appropriate for relief to be ordered such as has been sought by the respondent. 

12                  It would appear that the applicant applied to Centrelink to pay him a lump sum advance against a pension entitlement that he may have had, in the sum of $31,500.  On 26 January 2006, Centrelink apparently decided that it would not pay such an advance.  Thereupon the applicant appealed to the Social Security Appeals Tribunal which on 13 March 2006 affirmed the decision under review.  The applicant appealed to the Administrative Appeals Tribunal from the decision of the Social Security Appeals Tribunal but, on 6 September 2006, a senior member of the Administrative Appeals Tribunal affirmed the decision of the Social Security Appeals Tribunal.  The applicant then purported to appeal from that decision of the Administrative Appeals Tribunal under s 44 of the Administrative Appeals Tribunal Act.  The appeal was remitted by an order of a Judge of this court to the Federal Magistrates Court of Australia for determination. 

13                  On 18 December 2006, the learned Federal Magistrate before whom the matter came, ordered that the application filed 10 November 2006 be dismissed pursuant to rule 13.10 of the Federal Magistrates Court Rules.  In the Federal Magistrate’s reasons for decision (Burgess v Centrelink & Ors [2006] FMCA 1952) the following was recorded: 

‘5.   It is fundamental on an appeal to this Court under s.44 Administrative Appeals Tribunal Act that a question of law be formulated in the notice of appeal, and be done in such a way as to be comprehensible to the appellate Court.  …’ 

14                  It would appear that the respondent to the proceedings before the learned Federal Magistrate sought, in effect, summary dismissal.  The learned Federal Magistrate was satisfied that the applicant had no reasonable prospect of successfully prosecuting an appeal and in the circumstances the appeal was dismissed as previously indicated. 

15                  The decision of the Administrative Appeals Tribunal from which the current appeal has been brought was a decision of a Member of the Tribunal for which the citation is [2009] AATA 450.  That decision was handed down in Brisbane on 22 June 2009.  It affirmed the decision under review. 

16                  The reasons for decision recorded that the applicant was in receipt of a disability support pension and that on 12 September 2008 he applied for an advance of $1029.30.  The respondent refused his claim and subsequently paid him an advance of $500.  The respondent accepted that the applicant qualified for an advance payment of disability support pension pursuant to s 1061A(1) of the Social Security Act 1991 (Cth), however, it was of the opinion that it could not advance an amount greater than $500. 

17                  The issue which the Tribunal Member had to decide was whether or not, under the relevant legislation, a greater advance could be made.  At paragraph 12 and 13 of the Tribunal Member’s Reasons for Decision, ss 1061ED and 1061EH of the Social Security Act 1991 were quoted.  It seems clear that an advance payment could not be made of less than $250, nor could a payment be made which would exceed $500.  The applicant apparently contended that a $500 limit applied only to persons who were granted a pension before 1 July 1996.  He asserted that his pension was granted from 16 April 2002 and therefore he was not subjected to the statutory limit.  There was certainly nothing in the legislation as quoted in the Tribunal Member’s Reasons for Decision which suggested that the maximum advance only applied to persons who were granted pensions before 1 July 1996.

18                  The applicant in the current proceedings had previously sought review of the respondent’s decision not to pay a greater advance than $500.00, in the Social Security Appeals Tribunal which affirmed the decision that had been taken by the respondent.  The applicant then applied for review of the Social Security Appeals Tribunal decision whereupon the Administrative Appeals Tribunal, which heard the matter on the papers, affirmed the decision of the Social Security Appeals Tribunal.

19                  It seems to me that in the light of the history of the applicant’s claims in respect of his pension entitlements, he ought to have appreciated that a proper form of Notice of Appeal was required if he was to have his matter properly come before this Court.  In the absence of a Notice of Appeal which is compliant with s 44 of the Administrative Appeals Tribunal Act and in the light of the reasons for decision of the Administrative Appeals Tribunal Member of 22 June 2009, I cannot see that the interests of justice would be served by trying to defer further consideration of the applicant’s Notice of Appeal. 

20                  The applicant is in default within the meaning of Order 35A and in the circumstances, I consider that his notice of appeal should be dismissed as to the whole of the relief claimed by him.

Associate:

Dated:         10 August 2009