FEDERAL COURT OF AUSTRALIA

Mori v Secretary, Department of Social Services [2014] FCA 333

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the respondent’s costs of and incidental to the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    In this proceeding, the applicant, Shinko Mori, appeals from a decision of the Administrative Appeals Tribunal (Tribunal) given by Mr S Webb in Canberra on 10 October 2013 (Shinko Mori v Secretary, Department of Social Services [2013] AATA 737) (reinstatement decision). Ms Mori’s appeal purports to be an appeal from the reinstatement decision pursuant to s 44(1) of the Administrative Appeals Tribunal Act, 1975 (Cth) (AAT Act). By that decision, the Tribunal refused to reinstate an application which Ms Mori had previously made in the Tribunal (Ms Mori’s original application). Ms Mori’s original application had been resolved consensually and dismissed as a result of the application of s 182(2) of the Social Security (Administration) Act 1999 (Cth) (SSA Act) Act which provides that, if proceedings in the Tribunal that relate to the recovery of a social security debt are settled and the Secretary of the Department of Social Services gives a copy of the settlement agreement to the Tribunal, then the AAT proceeding is taken to have been dismissed by reason of those actions and without the need for any specific dismissal order to be made by the Tribunal.

2    On 21 January 2014, the respondent, who is the Secretary, Department of Social Services, filed a Notice of Objection to Competency in respect of Ms Mori’s purported appeal. That Notice raised the following grounds of objection:

1.    The applicant’s Notice of Appeal from a Tribunal dated 12 November 2013 does not state a precise question or questions of law to be raised on the appeal.

2.    The applicant’s Notice of Appeal from a Tribunal, in substance, seeks a revisiting of findings of fact made by the Administrative Appeals Tribunal and is contrary to the permissible scope of an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth).

3.    The applicant’s Notice of Appeal from a Tribunal dated 12 November 2013 was not filed within twenty-eight days after the day on which the document setting out the terms of the Tribunal’s decision was given to the applicant (being 11 October 2013) as required by s 44(2A)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), and the applicant has not filed an application for an extension of time within which to start an appeal under rule 33.1391) of the Federal Court Rules 2011.

3    The respondent subsequently abandoned ground 3 of the grounds specified in the Notice of Objection to Competency. I was informed that the Secretary was now satisfied that Ms Mori’s appeal had been lodged within time.

4    On 19 February 2014, Ms Mori filed an Amended Notice of Appeal.

5    Subsequently, on 20 February 2014, Ms Mori attempted to make further amendments to her Amended Notice of Appeal. She did not have leave to do so and Registry staff declined to accept the document in which these further amendments were set out.

6    The proceedings (including the respondent’s objections to competency) were heard by me yesterday (2 April 2014).

7    At the commencement of the hearing, I gave leave to Ms Mori to rely upon the matters specified in a document which I marked as “MFI-1” in addition to the matters relied upon by her in her Amended Notice of Appeal filed on 19 February 2014. The respondent’s legal representative consented to this course. MFI-1 is substantially in the same form as the document which Ms Mori attempted to file on 20 February 2014.

8    By these Reasons for Judgment I determine Ms Mori’s appeal and the respondent’s objections to the competency of that appeal.

The Decision of the Tribunal

9    In its Reasons for Decision, after outlining briefly the general nature of the application before it and referring to some other matters of history (at [1]-[3]), the Tribunal said (at [4]-[8]):

4.    The brief facts follow –

(a)    on 20 July 2011, Ms Mori applied for review of a decision of the Social Security Appeals Tribunal, affirming a decision made by the Secretary to raise and recover a debt in the amount of $2,446.23 in respect of earnings in 2008 that Ms Mori reported in June 2009;

(b)    on or about 15 September 2011 the Secretary served draft terms of settlement;

(c)    Ms Mori refused to accept the terms offered;

(d)    on 30 September 2011, relevant issues were discussed in a preliminary conference before a Tribunal Conference Registrar;

(e)    on 17 October 2011, apparently following discussions between a Departmental officer and Ms Mori’s friend and neighbour, Mr Mayple, the Secretary provided Ms Mori with further terms of settlement and clearly informed her that consent would lead to dismissal of her application before the Tribunal;

(f)    Ms Mori signed the draft terms of settlement and she also signed a consent for the Secretary to lodge the terms of agreement in the Tribunal;

(g)    on 28 October 2011, terms of settlement were filed in the Tribunal;

(h)    on 31 October 2011, notice of dismissal was sent to Ms Mori and to the Secretary;

(i)    on 2 September 2013, Ms Mori sought reinstatement of the application.

5.    The issue is to be decided under s42A of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The discretion to reinstate an application is enlivened if the request for reinstatement is made within 28 days of notice of dismissal, or if the dismissal was in error.

6.    Clearly, Ms Mori’s request for reinstatement was not made within 28 days of notice of dismissal. It follows that reinstatement may only be made under s42A(10), in the case of error.

7.    Ms Mori says that there are several errors. She maintains that she was unwell and that this affected her action to agree to terms of settlement. She says that she agreed to the terms of settlement in order to reduce her mental fatigue and stress. Furthermore, she said that she agreed to the terms and signed them in order to show appreciation and respect to her friendly neighbour, Mr Mayple, and to her friends in Japan, all of whom encouraged her to sign the draft terms. She told me that the terms of settlement do not address her primary goal in making the original application in July 2011, which was correcting incorrect records held by Centrelink in respect of her 2008 income reporting. This, she says, was an error on her part – she should not have accepted terms that did not address this objective. A further element of error, in her submission, may be that she misunderstood what the Tribunal can do in respect of amending records held by Centrelink. Finally, if I understand Ms Mori correctly, part of her complaint is that she was not properly informed about the reinstatement provisions of the AAT Act before or very soon after she signed the terms of settlement.

8.    To my mind none of these submissions suggest that Ms Mori’s 2011 application was dismissed in error.

10    At [9] the Tribunal held that the evidence before it did not establish that, in October 2011, when she settled her previous application, Ms Mori was so unwell that her mental faculties were affected to the extent that she did not understand or misconstrued the effect of signing the Terms of Settlement which led to Ms Mori’s original application being dismissed. The Tribunal found that her own sworn evidence was that she did understand what she was signing. The Tribunal went on to say that, while she experienced fatigue and stress at the time, she signed the Terms of Settlement to bring the matter to an end and thereby to reduce the level of her stress. In the Tribunal’s opinion that did not expose any error in effecting the dismissal of the previous proceedings within the meaning of s 42A(10) of the AAT Act.

11    At [10] the Tribunal said:

At this point it is important to observe that under s 182(2) of the Social Security (Administration) Act 1999 (the Social Security Administration Act), in the event that the Secretary and a claimant agree to settle on terms in respect of the recovery of a debt, the proceedings in the Tribunal are taken to be dismissed. Thus, once signed terms of agreement were lodged in the Tribunal, the application was taken to be dismissed by operation of s 182(2) of the Social Security Administration Act. There is no error in the manner in which Ms Mori’s application was taken to have been dismissed.

12    At [11], the Tribunal held that, acting in a respectful manner to friends who had provided support and advice, does not constitute an error unless there is some element of that support or advice that, of itself, may constitute an error. The Tribunal held that no error could be seen in respect of the support and advice which Ms Mori’s friends had provided. In any event, none of the matters relied upon revealed an error in the process that led to the dismissal of Ms Mori’s application.

13    At [12], the Tribunal held that Ms Mori’s issues about amending allegedly incorrect Departmental records or not fully understanding the extent of the Tribunal’s jurisdiction or power do not expose an error in the procedures, circumstances or manner in which her 2011 application was dismissed.

14    At [13], the Tribunal held that, even if it were to accept Ms Mori’s assertion that she only became aware of the possibility of reinstatement after making her decision to settle and sign the proposed terms, this does not expose any error in the dismissal of her application.

15    At [14]-[15], the Tribunal said:

On her evidence, the Tribunal provided her with information about reinstatement options within several weeks of the notice of dismissal. It appears that the $1,000 reduction in her overpayment debt was refunded to her following settlement and dismissal of her application in the Tribunal, but she returned it to Centrelink. She told me that it is a matter of honour and respect – she has done nothing wrong and the record should reflect this. That may be so, but Ms Mori did not finally act to seek reinstatement until 2 September 2013. This delay does not suggest that Ms Mori was pressing her avowed desire to step back from the terms of settlement to which she had agreed, and that resulted in her application being dismissed.

Finally, I accept that Ms Mori now regrets the decision she made to sign the terms proposed to her by the Secretary, and that she wishes she had not done so. Unfortunately for her, regret at having done something, or wishing it was not done or could be undone, having had a change of heart, does not constitute an error for the purposes of s 42A(10).

16    For all of the above reasons, the Tribunal declined to exercise its discretion to reinstate Ms Mori’s application pursuant to s 42A(10) of the AAT Act.

Ms Mori’s Grounds of Appeal

17    The Notice of Appeal filed by Ms Mori on 12 November 2013 was not in a form acceptable to the Court. The text of the document is confusing and unclear. There was annexed to the document approximately 71 pages of other materials. Those materials comprise a copy of the Tribunal’s Reasons for Decision annotated, apparently by Ms Mori, by means of small pieces of notepaper being attached thereto with handwritten notes made on them; correspondence between Ms Mori and the Tribunal; extracts from legislation; and other notes and correspondence also similarly annotated in places.

18    On 7 February 2014, when the matter was first returned before the Court, I was informed that the parties had agreed that Ms Mori should have leave to amend her Notice of Appeal. I gave her that leave.

19    On 19 February 2014, Ms Mori filed an Amended Notice of Appeal. In that document, Ms Mori appeared to challenge the allegations made by the respondent that Ms Mori had failed to inform the respondent of all of her income derived from employment contrary to her social security obligations and had never accepted any responsibility for her failure to comply with that obligation. These matters were at the heart of the allegations made by the respondent against Ms Mori which led to her original application being made to the Tribunal. It formed no part of the reinstatement decision. The reinstatement decision concerned the Tribunal’s refusal to reinstate Ms Mori’s original application.

20    In her Amended Notice of Appeal, Ms Mori stated the questions at law which she sought to raise in the following terms:

1.    Applicant signing on ‘Terms of Settlement’ was for that had been done in her ill condition of extensive mental fatigue and encouragement by third parties.

2.    Applicable discretion of regulation on informing within 14 days.

21    The balance of her Notice of Appeal was in the following terms:

Findings of fact that the Court is asked to make

1.    The applicant informed her employment income of 2008 (at most income on period set) indpendedly together with required statement (reason/apology) at Braddon Centre on 9 June 2009.

2.    Only a day income (2006) during period set except 2008 was one within permissible amount the year.

Orders sought

1.    Correction/take off inappropriate/wrong records of the applicant did not inform employment income, obligation under social security law.

2.    Centrelink’s written apology for seriously worried the applicant over 3 years with overdone investigation based suspicion disregarded applicant’s recognition.

Grounds relied on

1.    Informing system of age pension category is different from the other category of benefit and allowance and etc. usually fortnightly form for payment claim combines informing of change state is not received at hands of age pension recipients.

2.    Applicant’s employment income expect 2008’s were it within permissible amount the year this point had been overlooked.

22    In the document which is MFI-1, Ms Mori amended the second question of law raised by her by adding to paragraph 2 under the heading Questions of Law the following words: “…Settlement offer ($1,000) has returned to Centrelink” and 2. “Income was informed (9.6.09) but no handling was taken for 1 year 3 months (encl:1, 27.8.10) and any decision wasn’t made during 1 year 8 months (until 7.1.11). Administrative error (ACT 1991 – SECT 123T (1A-(b))

23    She also amended her Grounds in the following fashion:

(a)    She amended Ground 1 by adding the following words: “… and informing income becomes independent/voluntary”.

(b)    She amended Ground 2 by adding the following words: … and retroact deduction like a dust had been made.”

Some Background Facts

24    Between November 2006 and May 2010, the applicant received the age pension. On 16 November 2006, 21 February 2008 to 30 April 2008 and 24 May 2010 to 28 May 2010, the applicant was employed as a casual teacher with the ACT Department of Education.

25    The applicant was required (see ss 66A and 68 of the SSA Act) to advise Centrelink within 14 days of her starting employment or any increase in her income. The applicant did not do so. On 9 June 2009, the applicant did notify Centrelink of her employment for the period 11 February 2008 to 6 March 2008.

26    On 7 January 2011, Centrelink raised an aged pension debt of $2,446.24 in relation to overpaid age pension for the period 3 November 2007 to 31 May 2010 (on the basis of income received for the employment described above) (see Social Security Act 1991 (Cth), s 1223(1)).

27    The applicant sought review of this decision. On 14 February 2011, the original decision maker reconsidered and affirmed the decision. On 18 February 2011, internal review by an authorised review officer was conducted and the decision was affirmed. On 29 April 2011, the applicant sought review in the Social Security Appeals Tribunal (the SSAT). That review was heard and determined on 8 June 2011 by Members Hewson and Finley. The SSAT affirmed the decision under review.

28    On 20 July 2011, the applicant applied to the Tribunal for review of the SSAT decision. The Tribunal proceeding was settled and dismissed in the following circumstances:

(a)    On or about 15 September 2011, the respondent served a draft settlement offer on the applicant. This was rejected.

(b)    On 17 October 2011, the respondent provided a further draft settlement offer to the applicant. The applicant signed this draft settlement proposal and provided consent for the settlement to be lodged with the Tribunal.

(c)    On 28 October 2011, the settlement was lodged with the Tribunal. As a consequence, on 31 October 2011, the Tribunal sent a Notice of Dismissal to both parties.

29    Almost two years after her original application was dismissed, on 2 September 2013, the applicant lodged with the Tribunal an application to reinstate her original proceeding.

30    On 10 October 2013, the reinstatement application was heard by Member Webb. The Application was dismissed on the same day. Written reasons were provided on 11 October 2013.

31    On 12 November 2013, the applicant filed a Notice of Appeal from a Tribunal, seeking review of Member Webb’s decision. An Amended Notice of Appeal from a Tribunal was filed on 19 February 2014.

32    The above facts are taken from the respondent’s Chronology filed on 25 March 2014, in conformity with pre-trial directions made by the Court. I find those facts to be correct.

33    Ms Mori also filed a Chronology. That Chronology traversed many matters which were not germane to her appeal in this Court. It is apparent from Ms Mori’s Chronology that she accepts that she did, in fact, make a mistake in discharging her obligation to keep Centrelink informed of her income but that she felt that Centrelink had dealt with the matter inappropriately and unfairly. It was her perception of Centrelink’s attitude which led her to seek review of its original decisions.

34    Towards the end of her Chronology, in paragraph described by her as “Stage 13” and Stage 14”, Ms Mori said the following:

Stage 13. I applicant became mentally unwell and her friends and neighbours encouraged it strongly I to do sign on the settlement offer in order to conclude this proceedings for me. I had made compromise with the kind encouragement for rescue myself (mental condition) and had signed. 28 October 2011 Application was dismissed (my appeal had been withdrawn and I realised what I had done! I lost myself, I couldn’t accept the offer in my hand and returned it back twice on 25/2/12 and 9/7/12 (the offer money has returned to Centrelink).

Stage 14. 2 Sept 2013 logged re-instate Application (AAT)

10 October 2013 10am Interlocutory Hearing by Mr Simon Webb member AAT. Content of Application is divided into two sections of Correction Records and proceedings and given direction for correction record as it must through Freedom of Information. When the hearing was going to close I felt it strange (I hadn’t known meaning of Interlocutory) why it in spite of enough time remained then? And wished to continue hearing for proceedings and it was continued and Application was dismissed.

35    I have extracted the above paragraphs from Ms Mori’s Chronology exactly as they appear in that Chronology without alteration or amendment.

Consideration

36    In her Written Submissions filed on 18 March 2014 Ms Mori again addressed the history of her dealings with Centrelink concerning the allegedly undisclosed income. In that document, she expressed her grievances in some detail. However, in that document, Ms Mori concentrated on the history of the matter leading up to the filing of her original Application in the Tribunal. She did not address the reinstatement decision which, of course, is the decision from which she has appealed. Nor did she address the questions of law which she has sought to raise. She did not improve the position with submissions which she made orally at the hearing.

37    The two questions of law which Ms Mori seeks to raise are not questions of law at all. By those questions Ms Mori seeks to revisit matters of fact which were addressed and dealt with by the Tribunal in its reinstatement decision.

38    As was submitted on behalf of the respondent, the existence of an appropriately framed question of law is the Court’s jurisdictional hook. This much was made clear by the Full Court in Rana v Repatriation Commission (2011) 126 ALD 1; [2011] FCAFC 124 at 5 [11] where the Court said:

The need for a notice of appeal to specify a question of law is not just a matter of pleadings. In the absence of a question of law there is no subject matter for the appeal and the Court has no jurisdiction to entertain a proceeding.

39    The applicant is seeking impermissible merits review by this Court. She is not entitled to do so by engaging s 44 of the AAT Act. Her appeal must be dismissed for that reason alone.

40    It must be remembered that Ms Mori’s present application purports to be an appeal from the Tribunal’s refusal to reinstate her previous application. The Tribunal’s power to reinstate applications is found in subs (8)-(10) of s 42A of the AAT Act. Those subsections provide:

(8)    If the Tribunal, under subsection (2), has dismissed an application (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), the person who made the application may, within 28 days after receiving notification that the application has been dismissed, apply to the Tribunal for reinstatement of the application.

(9)    If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

(10)    If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

41    Subsections (8) and (9) of s 42A should be read together. That is, if the Tribunal has dismissed an application under subsection (2) of s 42A for the reason that the applicant failed to attend the hearing of the application, then the applicant may apply for reinstatement of his or her application pursuant to s 42A(8) and, in that event, the Tribunal may reinstate the application if it considers that it is appropriate to do so (subsection (9) of s 42A).

42    In my view, subsections (8) and (9) of s 42A have no application in the present case.

43    The Court’s power to reinstate Ms Mori’s original application must be found in subsection (10) of s 42A. The discretion reposed in the Tribunal by subsection (10) is conditioned upon the Tribunal first being satisfied that the application has been dismissed in error.

44    The Tribunal approached Ms Mori’s reinstatement application upon the basis that s 42A(10) (and not subsections (8) and (9) of s 42A) governed that application. This was undoubtedly correct. However, the Tribunal regarded subsections (8) and (9) as being irrelevant because Ms Mori did not file her reinstatement application within 28 days after receiving notice that her original application had been dismissed and was therefore out of time.

45    My reasons for concluding that subsections (8) and (9) of s 42A were not engaged at all in the present case are:

(a)    Ms Mori’s original application was not dismissed under subsection (2) of s 42A but rather as the result of the settlement reached between the parties;

(b)    Subsection s (8) and (9) must be read together; and

(c)    Therefore, because of (a), reinstatement under those subsections was not available.

46    Ms Mori’s previous application was dismissed by consent pursuant to Terms of Settlement which resolved that application consensually.

47    In the reinstatement decision, after carefully considering the matters raised by Ms Mori, the Tribunal concluded that Ms Mori’s application had not been dismissed in error but rather had been dismissed as a result of the settlement reached between the parties. The dismissal was effected as a result of a deliberate decision made by the parties to resolve the matter.

48    The Tribunal took into account all of the matters raised by Ms Mori. Ms Mori failed before the Tribunal because the Tribunal held that s 42A(10) was not engaged at all because Ms Mori had failed to demonstrate that her original proceeding had been dismissed in error. I think that the Tribunal was clearly correct when it reached that conclusion.

49    No question of law arises from the Tribunal’s decision. As I have already held, the matters relied upon by Ms Mori do not raise any question of law.

50    The Tribunal relied upon s 182(2) of the Social Security (Administration) Act 1999 (at [10] of its Reasons for Decision). Section 182 provides:

(1)    The Secretary may agree with other parties to proceedings before the AAT that relate to the recovery of a debt that the proceedings be settled. The agreement must be in writing.

(2)    If proceedings are settled and the Secretary gives the AAT a copy of the agreement to settle the proceedings, the application for review of the decision the subject of the proceedings is taken to have been dismissed.

51    In the present case, the respondent gave to the Tribunal a copy of the Agreement which contained the Terms of Settlement and thus engaged s 182(2) of the SSA Act.

52    The engagement of s 182(2) in the circumstances of the present case makes it very difficult for Ms Mori to argue that her original application was dismissed in error within the meaning of s42A(10) of the AAT Act. This is because the dismissal of her original application was a deemed dismissal which resulted, as a matter of law, from the fact that the respondent gave to the Tribunal the signed Terms of Settlement. If Ms Mori wished to challenge that dismissal, she needed to challenge the Terms of Settlement themselves and not merely the dismissal in the Tribunal.

Conclusions

53    For all of the above reasons, Ms Mori’s appeal must be dismissed with costs. There will be orders accordingly.

Associate:

Dated:    3 April 2014