FEDERAL COURT OF AUSTRALIA

Grabovsky v Secretary, Department of Social Services [2014] FCA 1121

THE COURT ORDERS THAT:

1.    The applicant pay the first respondent’s costs of the interlocutory application filed 25 September 2014.

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

REASONS FOR JUDGMENT

Introduction and Background

1    On 31 July 2014, the Administrative Appeals Tribunal (“Tribunal”) handed down its decision in the applicant’s (“Mr Grabovsky”) application for review of a decision of the Social Security Appeals Tribunal (“SSAT”) to affirm a decision of Centrelink to refuse his claim for the disability support pension (“DSP”): Igor Grabovsky v Secretary Department of Social Services [2014] AATA 522.

2    The Tribunal set aside the decision under review refusing Mr Grabovsky’s claim for the DSP and remitted the matter to the first respondent with a direction that Mr Grabovsky’s eczema is fully diagnosed, treated and stabilised and so should be assessed for the assignment of impairment points under Table 14 of the Impairment Tables.

3    The Tribunal further directed that:

(1)    Prior to making its assessment, the first respondent should invite Mr Grabovsky to provide further evidence about the impact of his eczema on his ability to function.

(2)    Having made its assessment, if Mr Grabovsky’s conditions attract at least 20 impairment points, the respondent should then proceed to determine whether he has a continuing inability to work with a view to its ultimate determination as to whether Mr Grabovsky is qualified for the DSP.

4    On 19 August 2014, Mr Grabovsky filed a notice of appeal in the NSW District Registry of this Court against the Tribunal’s decision on the following questions of law:

1.    Hearing was lacking in procedural fairness.

2.    Decision was arrived to without due consideration of the merits of the matter.

3.    Tribunal did not apply a statute relevant to the proceeding.

5    Under the heading “Grounds relied on”, there appeared 19 paragraphs detailing the history of Mr Grabovsky’s dispute with the first respondent (Grounds (1)–(10)) and assailing aspects of the conduct of the hearing before the Tribunal (Grounds (11)–(19)).

6    On 19 August 2014, Mr Grabovsky also filed in the NSW District Registry of this Court an interlocutory application for a stay of the Tribunal’s decision.

7    On 10 September 2014, I gave the first respondent leave to file in Court a notice of objection to the competency of Mr Grabovsky’s notice of appeal. The grounds of objection read as follows:

1.    The three questions of law stated the Notice of Appeal are:

(a)    “Hearing was lacking in procedural fairness”;

(b)    “Decision was arrived to without due consideration of the merits of the matter; and

(c)    “Tribunal did not apply a statute relevant to the proceeding”.

2.    This [sic] are not questions of law. They are assertions or submissions. They do not satisfy the requirement that questions of law must be sufficiently stated. The Court’s jurisdiction is only enlivened by the existence of a question of law, and the question of law must be articulated with precision.

3.    As for the first nominated question of law, clause 8 in the Notice of Appeal contends that the Social Security Appeals Tribunal (SSAT) “denied procedural fairness”, but the SSAT’s decision is not the subject to the appeal to this Court.

4.    Clause 11 in the Notice of Appeal contends that the Administrative Appeals Tribunal (AAT) “was denying the Applicant procedural fairness” by not considering points of appeal before the AAT, but there is no statement as to why or how this was a failure of procedural fairness.

5.    As for the second nominated question of law, again the Notice of Appeal does not identify what the AAT did not duly consider with respect to the merits of the matter, and why that amounts to an error of law.

6.    As for the third nominated question of law:

(a)    If it is contended that the AAT did not have the power to remit the subject matter of the merits review to the Secretary/Respondent, the Notice of Appeal should identify the relevant legislation which the appellant says was misapplied;

(b)    If it is contended that the AAT misinterpreted a provision in section 94 of the Social Security Act 1991, the Notice of Appeal should identify the provision which the appellant says was misinterpreted, and why it was misinterpreted;

(c)    If it is contended that the AAT misinterpreted a provision in other legislation, or in a legislative instrument such as the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, the Notice of Appeal should identify the provision which the appellant says was misinterpreted, and why it was misinterpreted;

7.    The Court has no jurisdiction to hear the appeal as the Notice of Appeal is formulated.

8    On the same date, I set the matter down for hearing on 21 October 2014.

9    On 15 September 2014, Mr Grabovsky filed a notice of response to the first respondent’s notice of objection to competency. This response did not advance the matter any further.

10    On 25 September 2014, Mr Grabovsky filed an interlocutory application seeking the leave of the Court to file a supplementary notice of appeal dated 22 September 2014, a copy of which was attached to the interlocutory application.

11    This latter interlocutory application came before me for hearing on 2 October 2014. It was opposed by the first respondent on the grounds that it is incompetent and has no prospect of success. The first respondent also maintained his view that the notice of appeal filed on 19 August 2014 is also incompetent and should be dismissed.

12    Mr Grabovsky declined to advance any argument as to why he should be granted leave to file a supplementary notice of appeal saying that it was “comprehensively explain[ed] in my application”. There was no explanation in Mr Grabovsky’s interlocutory application and I therefore dismissed it. At the conclusion of the hearing Mr Grabovsky indicated that he wanted reasons for my decision.

Rule 1.21 Application

13    Before setting out my reasons for dismissing Mr Grabovsky’s interlocutory application for leave to file a supplementary notice of appeal, I should first deal with an application he made, at the commencement of the hearing, for procedural orders to be made pursuant to r 1.21 of the Federal Court Rules 2011 (“Rules”). This application was made without notice to the first respondent or the Court and involves a total misconception on Mr Grabovsky’s part as to the underlying purpose of r 1.21 of the Rules. I refused Mr Grabovsky permission to file this application in Court and when he subsequently sought to file it in the registry, I instructed registry staff to reject it.

14    Rule 1.21 reads:

1.21 Application for orders about procedures

A person who wants to start a proceeding, or take a step in a proceeding, may apply to the Court for an order about the procedure to be followed if:

(a)     the procedure is not prescribed by the Act, these Rules or by or under any other Act; or

(b)     the person is in doubt about the procedure.

15    Rule 1.21 assists prospective applicants in making applications to the Court if procedures are wanting or in doubt. Where there is no specific procedure to initiate a cause of action in this Court, r 1.21 will be of relevance as it permits the Court to devise an ad hoc procedure: Browne v Commissioner for Railways (1935) 36 SR (NSW) 21 at 29.

16    Where, however there is a specific procedure to be followed for bringing an application to the Court, then r 1.21 will not be relevant, nor be of assistance to a prospective applicant.

17    The procedure for initiating an appeal from the Tribunal is set out in Div 33.2 of the Rules. The specific rule is found in r 33.12 which states unambiguously:

33.12 Starting an appeal—filing and service of notice of appeal

(1)    A person who wants to appeal to the Court under the AAT Act must file a notice of appeal, in accordance with Form 75.

Note: The notice of appeal must be filed within the time mentioned in section 44(2A) of the AAT Act, being not later than the 28th day after the day that a document setting out the terms of the decision is given to the person.

(2)    The notice of appeal must state:

(a)    the part of the decision the applicant appeals from or contends should be varied; and

(b)    the precise question or questions of law to be raised on the appeal; and

(c)    any findings of fact that the Court is asked to make; and (d) the relief sought instead of the decision appealed from, or the variation of the decision that is sought; and

…

(e)    briefly but specifically, the grounds relied on in support of the relief or variation sought.

Note: The Court can only make findings of fact in limited circumstances— see section 44(7) of the AAT Act.

(3)    The applicant must file the notice of appeal in the District Registry in the State or Territory in which the Tribunal heard the matter.

(4)    The applicant must serve a copy of the notice of appeal on:

(a)    each other party to the proceeding; and

(b)    the Registrar of the Tribunal.

Note 1: The Registrar will fix a return date and place of hearing and endorse those details on the notice of appeal.

Note 2: A lawyer may file a notice of appeal starting migration litigation only if the notice of appeal includes or is accompanied by a certificate under section 486I of the Migration Act 1958 signed by the lawyer.

Note 3: For migration litigation, lawyer has the meaning given by section 5 of the Migration Act 1958.

18    In the light of the wording of r 33.12, para (a) of r 1.21 cannot be satisfied as the procedure for bringing an appeal from the Tribunal is not in doubt. Moreover, in the circumstances where Mr Grabovsky has already filed a notice of appeal from the Tribunal in the form provided by Form 75 pursuant to r 33.12(1), Mr Grabovsky’s claims that he was in doubt about the procedure for bringing an appeal from the Tribunal, such as to found an application under para (b) of r 1.21, is not one that I can accept.

Reasons for Dismissal of Interlocutory Application of 25 September 2014

19    I return to set out my reasons for dismissing Mr Grabovsky’s interlocutory application filed 25 September 2014 seeking the Court’s leave to file a supplementary notice of appeal.

20    The four questions (points) of law stated in the supplementary notice of appeal can be grouped into two categories:

(1)    An appeal to this Court from what appears to be conduct or decisions of the Secretary (the first, second and fourth questions of law, the grounds for which are relevantly set out in paras 14, 15 and 26 of the supplementary notice); and

(3)    an appeal to this Court from the Tribunal’s decision to remit Mr Grabovsky’s claim for the DSP back to the Secretary for determination (the third question of law, the ground for which is relevantly set out in para 23 of the supplementary notice) .

The first category

21    To the extent that the supplementary notice is an appeal to this Court from conduct or decisions of the first respondent, the appeal is incompetent. An appeal can only be brought to this Court from a decision of the Tribunal.

22    Mr Grabovsky lodged his claim for DSP on 11 December 2012. The Secretary determined that he was not qualified for DSP on 22 January 2013.

23    The provision setting out the obligation of the Secretary to determine claims made under social security law and the provisions that permit review of those decisions are set out in the Social Security Administration Act 1999 (Cth) (“Administration Act”):

(1)    Pursuant to s 36 of the Administration Act the first respondent must, in accordance with the social security law, determine a claim for a social security payment, either granting or rejecting the claim;

(2)    pursuant to s 37 of the Administration Act the first respondent must determine that a claim for a social security payment is to be granted if the first respondent is satisfied that the claimant is qualified for the social security payment and the payment is payable;

(3)    there is an internal review procedure which includes a review by an authorised review officer (“ARO”) under s 135 of the Administration Act of a decision made by an officer under social security law;

(4)    a person whose interests are affected by a decision of an ARO may apply to the SSAT for review of that decision under s 142 of the Administration Act;

(5)    if a decision has been reviewed by the SSAT and the decision has been affirmed, varied or set aside by the SSAT then an application for review can be made to the Tribunal under s 179 of the Administration Act for review of the decision of the SSAT.

24    The Tribunal may only review a decision that has been reviewed by the SSAT in accordance with s 181 of the Administration Act, and the Tribunal only has power to review a decision in respect of which an application is made to it under an enactment: s 25 of the Administrative Appeals Tribunal Act 1975 (Cth).

25    There is no right of review or appeal in this Court under the Administration Act, the Social Security Act or the AAT Act from a decision made under a social security law by an officer or an ARO.

26    Further, Mr Grabovsky seeks orders in his notice of appeal and in the supplementary notice that this Court grant him the DSP from the date of the original application. This Court does not have the power “to grant” Mr Grabovsky the DSP under the Administration Act, the Social Security Act or the Tribunal Act.

The second category

27    In para 23 of the supplementary notice, Mr Grabovsky misunderstands the Tribunal’s direction made on 31 July 2014.

28    In reviewing the decision of the SSAT the Tribunal understood that the issue which arises for the Tribunal’s determination in those proceedings concern whether, at the time of Mr Grabovsky’s claim on 21 December 2012, or within 13 weeks of that date, he met the requirements of s 94 of the Social Security Act 1991 (Cth).

29    The “relevant period” considered by the Tribunal in the impugned decision made on 31 July 2014 was 21 December 2012 to 25 March 2013. The Tribunal referred to the relevant period and the legislative basis for it in [9] of its reasons for decision.

30    On 31 July 2014, the Tribunal set aside the decision of the SSAT and remitted Mr Grabovsky’s claim for the DSP back to the first respondent for determination. As the SSAT decision under review that Mr Grabovsky did not meet the requirements of s 94 at the time of his claim or within 13 weeks thereafter has been remitted to the first respondent for redetermination, the first respondent must now determine in accordance with the directions made by the Tribunal whether, during the relevant period (and not for any other time) Mr Grabovsky met those requirements.

31    The Tribunal did not misinterpret the law. The purported question of law in para 23 of the supplementary notice has no prospect of success.

Conclusion

32    There does not appear to me to be any error of law in the Tribunal’s decision. There is a lack of precision in the purported questions that have been set out in the supplementary notice and in the notice of appeal. The document raises matters that do not involve any question of law.

Associate:

Dated:    21 October 2014