FEDERAL COURT OF AUSTRALIA

Khan v Secretary, Department of Family Housing Community Service & Indigenous Affairs [2010] FCA 420

THE COURT ORDERS THAT:

1.                  The applicant’s amended notice of appeal dated 30 March 2010 (filed 31 March 2010) be struck out.

2.                  The applicant pay the respondent’s costs of the motion as taxed or agreed.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                                            On 22 January of this year, the Administrative Appeals Tribunal (‘the Tribunal’) affirmed a decision of the Social Security Appeals Tribunal (‘SSAT’) of 2 June 2009 affirming a prior determination by Centrelink in the following terms:

(1)               To cancel the applicant’s carer allowance for the period 10 August 2006 to 8 October 2008.

(2)               Raise and recover a carer allowance debt for the period 10 August 2006 to 8 October 2008.

(3)               To cancel the applicant’s carer payment for the period 10 August 2006 to 8 October 2008.

(4)               Raise and recover a carer payment debt for the period 10 August 2006 to 8 October 2008.

(5)               Reject the applicant’s new claim for carer allowance.

(6)               Reject the applicant’s claim for carer payment.

2                                            The applicant was first granted carer payment and carer allowance in respect of his wife, Youmna Khan, in November 2005.

3                                            On 19 February this year, the applicant filed a notice of appeal from the Tribunal’s decision in this Court.  On the first page of the notice of appeal, the following appears:

‘2         THE QUESTIONS OF LAW raised on appeal are—(ERROR OF LAW)’

4                                            The second and third pages of the notice of appeal read:

‘THE QUESTIONS OF LAW raised on appeal are

Carer absences exceeding 63 days .

A delegate of the Secretary has the discretion to extend the period of temporary cessation of care in special circumstances, If a special reason exists, a carer can cease to provide the care receiver with constant care for more than 63 days in a calendar years, and still retain qualification.

Delegates must exercise discretion in determining what constitutes a special reason. Generally, such reasons would be outside the carer's control, and would be consistent with their roles as a carer. The care situation would be expected to resume after a definite period

3.6.7.50 Qualification for CA during Temporary Cessation of Care Temporary cessation of care-up to 63 days.

A carer (1.1.C.40) remains qualified for CA where they temporarily cease to provide the care receiver (1.1.C.21) with care and attention on a daily basis, for up to 63 days in calendar years.

Subsection 1236(1 C) SSA reads:

(IC)      For the purposes of paragraph (1 A)(b) if a debt is recoverable by means of

(a)        deduction from the debtor's social security payment; or

(b)        … or

(c)        C …    

The debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.

Section 1237 AAD SSA states:

The Secretary may waive there right to recover all or part of a debt if the Secretary is satisfied that:

(a)        the debt did not result wholly or partly from the debtor another person knowingly:

(i)         making a false statement or a false representation; or

(ii)        failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and

(b)        there are special circumstances( other than financial hardship alone) that make it desirable to waive; and

(c)        it is more appropriate to waive than to write off the debt or part of the debt.

Special circumstances was discussed by Carr J in Secretary, Department Social Security V Ellis( 1996-7) 24 AAR 535 at 539 viz:’

Amended Notice of Appeal

5                                            On 24 March 2010 I granted the applicant leave to file and serve an amended notice of appeal.

6                                            This the applicant did on 31 March 2010.  The amended notice of appeal reads, inter alia:

‘2         THE QUESTIONS OF LAW raised on appeal are

(a)        Incorrectly interpreting a statute relevant to the proceeding.

(b)        Denying procedural fairness to a party.

(c)                Miscourage [sic] of justice.’

Notice of Motion

7                                            On 19 April 2010 the respondent filed a notice of motion seeking orders that:

‘1.        Summary judgment be given in favour of the Respondent on the basis that the Appellant has no reasonable prospect of successfully prosecuting the proceeding.

2.         Alternatively, the proceeding be summarily dismissed or permanently stayed on the ground:

(a)                that it disclosed no reasonable cause of action; or

(b)                that it is an abuse of process.

3.         Alternatively, the Appellant’s Amended Notice of Appeal filed 31 March 2010 be struck out on the ground that it discloses no question of law.

4.         Alternatively, the Amended Notice of Appeal be struck out on the ground:

(a)                that it has no reasonable prospects of success; or

(b)                that it is an abuse of process.

5.                  Costs.’

8                                            On 30 April 2010 I heard the respondent’s motion.  The respondent relied on an affidavit of Mr Anthony Carter sworn 13 April 2010, who also appeared on behalf of the respondent at the hearing of the motion.  The applicant appeared in person and relied on his affidavit sworn 29 April 2010, the last two paragraphs of which read:

‘8.        Centrelink has never made any decision raising the debt from 2006 to 2008, therefore I have not filed any appeal in SSAT in relation to debt.

9.       The AAT member made an error of law and that the error contributed to the decision I am appealing from in relation to debt.’

9                                            The respondent’s motion proceeded on the basis that it sought an order in terms of that in para 3 of the notice, namely, that the applicant’s amended notice of appeal be struck out on the ground that it discloses no question of law.

10                                        Order 53 rule 3(2)(b) of the Federal Court Rules (‘the Rules’) requires the notice of appeal to this Court from a decision of the Tribunal to state the question or questions of law to be raised on the appeal.  This has been construed as an essential requirement (Lambe v Director-General of Social Services (1981) 57 FLR 262 at 264) because the existence of a question of law is necessary to ground jurisdiction under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth)(‘the AAT Act’).  As Gummow J pointed out in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178:

‘The existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject of the appeal itself.’

11                                        The amended notice of appeal does not state any question of law and the applicant did not articulate any such question during the hearing of the motion notwithstanding being given the opportunity of doing so.

12                                        In Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515, Ryan J expressed the view, at 519, that O 53 r 15(1) of the Rules conferred a power sufficiently broad to allow the Court to strike out the whole or part of an appeal under s 44 of the AAT Act.  His Honour went on to say at 520:

‘Even if I be wrong in gleaning from O 53 a power to make an order of the kind sought in the present case, I consider that such a power is conferred by s 23 of the Federal Court of Australia Act or exists as part of the inherent jurisdiction of the Court which was invoked by Lee J in Whim Creek Consolidated NL v Colgan (at 5) citing Hughes Motor Service Pty Ltd v Wang Computer Pty Ltd (1978) 35 FLR 346 at 351.’

See too Bittman v Australian Securities and Investment Commission (No 2) [2006] FCA 1786 (Kenny J); Ho v Commonwealth (unreported, Cooper J, 10 March 1994).

13                                        There being no doubt that I have the power to strike out the applicant’s amended notice of appeal for want of stating a question or questions of law, that is what I propose to do.

14                                        The applicant must pay the respondent’s costs of the motion as taxed or agreed.

Associate:

Dated:         5 May 2010