FEDERAL COURT OF AUSTRALIA

Dauguet v Centrelink [2015] FCA 395

THE COURT ORDERS THAT:

1.    The interlocutory application made by Ms Natasha Peric and dated 2 April 2015 be dismissed.

2.    Ms Natasha Peric pay the respondent’s costs of and incidental to the interlocutory application made by her.

3.    The proceeding be dismissed pursuant to r 5.23 of the Federal Court Rules 2011 (Cth).

4.    If the respondent wishes to apply for Ms Natasha Peric to be ordered to pay the costs of this proceeding, it should make such application, together with any evidence and submissions in support of that application, on or before 12 May 2015.

5.    If an application is made pursuant to paragraph 4 of these orders, the applicant and Ms Natasha Peric have liberty to file and serve any written submissions they wish to make in opposition to that application on or before 26 May 2015.

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

REASONS FOR JUDGMENT

INTRODUCTION AND SUMMARY

1    This is an application expressed as made under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act) for relief against an officer or officers of Centrelink. The applicant, who is self-represented, has made a variety of allegations and claims. His principal claim seeks reinstatement of his Newstart allowance, which was suspended on or about 8 July 2014 and subsequently cancelled. Despite the best efforts of the Court and the respondent, he has not sought to take the steps necessary for the Court to determine the substance of his application. Accordingly for the reasons set out below, there will be orders under r 5.23(1) of the Federal Court Rules 2011 (Cth) dismissing the proceeding.

2    The applicant’s domestic partner, Ms Natasha Peric, belatedly filed an application to be joined as a party to this proceeding. That application will also be dismissed.

NATURE OF THE APPLICANT’S COMPLAINTS AND DOCUMENTS FILED

3    The applicant is a 49 year old man. The evidence discloses that he first came to Australia in 1989. The evidence is that his preferred language is French, but the evidence does not reveal anything further about his nationality.

4    The applicant has always attended court with his domestic partner, Ms Peric. There is no evidence that he and Ms Peric are married, but there is evidence they are domestic partners, and that they have at least three children in their teens and early twenties.

5    In his originating application, the applicant identifies the decision he wishes to have reviewed as the decision by Centrelink to “stop my payment. I appeal on the 8 October 2014 my payment was restored on 10 October 2014. I receive only $430 only part payment then they stop payment on the 13 October 2014”. He states that he seeks orders:

1.     to have my payment restored under Administrative decisions (Judicial review) Act 1977 – Section 5

2.    To seek an order to have my appeal back on record After it was deleted by the managers at Centrelink.

6    The application alleges there has been “a breach of natural justice in connection with the making of the decision”, echoing the terms of s 5(1)(a) of the AD(JR) Act.

7    On and since commencing the proceeding, the applicant has filed two affidavits purported to be made by him and an interlocutory application. I say “purported to be made by him” because, as I discuss below, an available inference is that the statements in the affidavits are in reality those of Ms Peric. That inference could be drawn from what was said by the applicant at the directions hearing, from the way he and Ms Peric interacted, and from the way Ms Peric interacted with my chambers and with staff in the Victorian Registry. That inference is available, as I say, but I propose to give him the benefit of the doubt and proceed on the basis that the statements in those two affidavits are those of the applicant himself, albeit no doubt with Ms Peric substantially assisting him.

8    In relation to some other documents which are now in evidence, and purport to be written by Mr Dauguet, the inference that in reality Ms Peric wrote them is stronger. As I set out at [96] below, I draw that inference.

9    The two affidavits filed by the applicant consisted of a series of allegations about the way Centrelink had dealt with the applicant and his claims to be entitled to a range of payments under the Social Security Act 1991 (Cth), principally payment of Newstart allowance, which is the payment the applicant alleges in the originating application was “stopped” in October 2014. The affidavits did not include or attach any documentary evidence in support of his allegations regarding the termination of the applicant’s Newstart allowance.

10    On 3 November 2014 the applicant filed an affidavit in support, with his originating application. The affidavit was signed by the applicant but did not indicate whether it had been sworn or affirmed. In the body of the affidavit were written the words “please refer to Attachment A”. Annexed to the affidavit and marked “A” in handwriting is a letter dated 29 October 2014 addressed to the Federal Court, and signed by the applicant. In the letter, the applicant expands on the allegations made in the originating application, making it clear that the payment which was “stopped” was a Newstart allowance. The letter refers to no other payments, but does set out medical conditions the applicant claims to have. The letter also asserts the applicant has “no capacity to work”. The letter records two reasons given to the applicant by Centrelink about why his Newstart allowance was suspended: first, that he had capacity to work and secondly a failure to attend his employment services assessments.

11    In the letter the applicant asserts that on 8 October 2014 he lodged an appeal against the suspension decision. The applicant alleges officers of Centrelink interfered with his appeal because it is recorded to have been lodged on 14 October 2014.

12    The applicant states that his payment was briefly restored on 10 October 2014 and he received a payment of $430 deposited into his bank account. More recent evidence suggests the money was deposited into Ms Peric’s bank account and I deal with that issue below. The applicant alleges that he has not received a payment since 10 October 2014, despite promises being made to his wife by an officer of Centrelink that if a telephone call was made to the Centrelink participation team, then his outstanding payments would be paid to him on 13 October 2014.

13    The applicant claims in the letter he is unable to work due to a permanent back condition, which he has suffered for seven years. He claims to take painkillers on a daily basis to alleviate the condition. The applicant contends that since 2008 he has submitted medical certificates to Centrelink.

14    The 29 October 2014 letter also states that the applicant made a complaint to the Commonwealth Ombudsman in June 2014 and after that complaint he was “restricted” from attending Centrelink offices. Again, more recent evidence suggests it was in fact Ms Peric who was made subject to these restrictions. He also alleges Centrelink officers have interfered with his records including with the appeal he lodged on 8 October 2014. The applicant also alleges Ms Peric’s “payment” (it is unclear to what this refers) is regularly delayed following the complaint he made to the Commonwealth Ombudsman.

15    On 9 December 2014 the applicant filed an interlocutory application. The orders sought in the interlocutory application were:

1.     To seek an order for payment pending review.

2.    To seek an urgent injunction against Centrelink based on falsify records at Centrelink.

16    On 9 December 2014 the applicant filed a further affidavit in support of his interlocutory application. Again, the affidavit is signed but does not indicate whether it is affirmed or sworn. Annexed to the affidavit was a further typewritten statement signed by the applicant on 8 December 2014. As I have noted at [7] above, I proceed on the basis this further typewritten statement was made by the applicant and not Ms Peric, although I harbour significant doubt about that. In this further statement, the applicant makes allegations against a Centrelink Complaints Manager, asserting that she “fraudulently cancelled” his Newstart payment and deliberately falsified his Centrelink records, including in relation to his medical records held by Centrelink. He also alleges she had wrongly referred his name to a debt collecting agency. The applicant asserts that the Centrelink officer notified the applicant of the cancellation of his Newstart allowance and the carer’s allowance he received on behalf of his son. There is also reference to an appeal lodged on 30 September 2014, which appears to relate to the carer’s allowance. More recent evidence demonstrates this is, in fact, an allowance claimed to be payable to Ms Peric. The applicant refers to a letter from the Commonwealth Ombudsman of 19 November 2014 but did not attach or exhibit that letter.

17    The applicant has not filed any material with the Court since the filing of the interlocutory application and affidavit in support of the application on 9 December 2014. Ms Peric has however filed an affidavit, and the applicant has sought to rely on that affidavit in relation to his own claims.

18    The following summary of events is based on the transcripts of directions hearings and the Court’s records, including those kept in the Victorian Registry. It is not an exhaustive record of each and every communication, of which there have been a great deal. Where I refer to communications to and from chambers, those communications were copied to all parties and the substance of any calls made to or from my chambers was relayed by email to the parties. The necessity to communicate in this way to have the case managed in anything approaching a fair and efficient manner highlights one of the many unsatisfactory aspects of Mr Dauguet not actively conducting his own case, nor being legally represented, nor providing an email or facsimile contact, and only providing Ms Peric’s telephone number.

THE FIRST DIRECTIONS HEARING

19    The proceeding was listed for a first directions hearing on 16 December 2014, shortly after the interlocutory application was filed. The applicant appeared, and was accompanied by Ms Peric. The respondent appeared through a legal representative. I note the respondent is, and has remained, identified in the application and documents as “Centrelink”. In proceedings such as this, the appropriate respondent is usually seen to be the Secretary to the Department of Human Services. No application has been made by the respondent to have the respondent differently identified and I do not understand the respondent to have taken any point about any misnomer.

20    Ms Peric sought to conduct the directions hearing on behalf of the applicant. Ms Peric also claimed that she was “the one who actually deals with all his Centrelink issues”.

21    Ms Peric was told that course of action would not be acceptable unless the applicant was incapable of conducting the directions hearing on his own behalf. The operation of r 9.63 of the Rules relating to the appointment of a litigation representative was explained to the applicant, and to her. Both Ms Peric and the applicant made it clear he did not have a disability of a kind that meant he could not understand the proceeding or conduct it himself.

22    Indeed in my opinion, when Ms Peric was ordered to be quiet, Mr Dauguet was responsive to my questions and able to put his position about his complaints.

HER HONOUR: Those are the processes in this court, Ms Peric, and you will sit there and you will be quiet until you are spoken to. All right?

MS PERIC: Yes, your Honour.

HER HONOUR: Thank you.

MS PERIC: But I just find it very hard - - -

HER HONOUR: Thank you. Now, Mr Dauguet. This is your case. You have to talk to me, all right? If there is a problem with that, you need to get a doctor to give some evidence. But today I think you can talk to me.

MR DAUGUET: Yes. But I got evidence from the doctor, your Honour.

HER HONOUR: All right. I just want you to talk to me, and - - -

MS PERIC: Yes. Here is a – this letter - - -

HER HONOUR: - - - I want, at the moment – Mr Dauguet, listen to me, please.

MR DAUGUET: Yes.

HER HONOUR: At the moment, I am asking you if you can come next Tuesday to a case – a conference here. A meeting at 10.30. Can you come?

MR DAUGUET: Yes, your Honour. I can.

HER HONOUR: All right. At that meeting, the registrar will talk to you, and talk to Ms Briffa, about your case and what can be worked out.

MR DAUGUET: Yes.

HER HONOUR: At the – do you understand that?

MR DAUGUET: Yes, your Honour, but I would like to show the court that I got the medical certificate, but they ..... I don’t know why. It’s against the law, your Honour, because I got it – the doctor has told me to come to the court.

23    As I set out in more detail below, the medical certificate to which the applicant referred is a medical certificate that he, and Ms Peric on his behalf, sought to use with Centrelink to challenge the decision to cancel the applicant’s Newstart allowance.

24    In my opinion, whatever the dynamics of his relationship with Ms Peric, there was no obvious inability on Mr Dauguet’s part to represent himself at this directions hearing, nor in this proceeding. Nor did Mr Dauguet maintain he had any difficulty expressing himself. On being asked if he required a French interpreter, when he explained English was not his first language, the applicant said:

No, I don’t need an interpreter, because I speak – I understand.

25    There was some mention by both Ms Peric and Mr Dauguet at the directions hearing of the amount of medication Mr Dauguet was taking. I again made it clear to Ms Peric and to Mr Dauguet that if Mr Dauguet believed Ms Peric should act on his behalf because he was not capable of representing himself, then there was a process to be followed under r 9.63 of the Rules, including the filing of evidence to demonstrate that Mr Dauguet had a disability and needed a litigation representative. No such application has been made, despite the Registry providing information and assistance to Mr Dauguet and Ms Peric on this matter.

26    At the directions hearing, as well as being informed about the process for appointment of a litigation representative, Mr Dauguet was also informed about the possibility of free legal assistance, which was used by me as a shorthand reference to a referral under r 4.12 of the Rules for legal representation.

27    On 18 February 2015 a form titled “Statement of Financial Position of Individual in relation to Legal Assistance under Pro Bono Scheme” was sent to Mr Dauguet, so that in accordance with r 4.12(2)(a) his inability to pay for legal representation could be assessed, prior to the making of any such referral. That form has not been completed and returned to the Court. It is one of many omissions in this proceeding by Mr Dauguet which have contributed to his complaints not being progressed.

28    As best I was able, I understood from Mr Dauguet that he was most concerned with having his Newstart allowance restored pending the outcome of his application to the Court, because of the financial hardship he said he was suffering.

29    The applicant had taken some time to serve the respondent with the originating process and accompanying documents. The respondent’s legal representative informed the Court that all of the documents filed with the Court had been served on the respondent on 10 December 2014, over five weeks after the applicant’s originating application was filed with the Court. The applicant did not file an affidavit of service despite being requested by the Registry to do so.

30    Nevertheless, what was clear at the directions hearing was that the respondent accepted the decision about suspension and cancellation of the applicant’s Newstart allowance was reviewable on its merits, by the Social Security Appeals Tribunal (SSAT) and then again by the Administrative Appeals Tribunal (AAT). Mr Dauguet and Ms Peric were informed of this at the directions hearing. The advantages of seeking merits review were explained to both Mr Dauguet and Ms Peric. Ms Peric, still insisting over the Court’s directions on speaking for the applicant, responded:

Your Honour, I actually rang them and they said I can’t do it, I have to go through the Federal Court because you have the jurisdiction to review the decision.

31    The respondent’s legal representative made it clear to the applicant and to Ms Peric this was not at all accurate. Its inaccuracy is confirmed by more recent evidence which demonstrates ongoing refusal by both Mr Dauguet and Ms Peric to avail themselves of their merits review options.

32    At the directions hearing no account was available of the factual background that led to the cancellation of the applicant’s Newstart allowance, nor of the chain of events that the applicant claimed occurred following his appeals from the suspension and cancellation.

33    Additionally, a combination of the inadequate material before the Court, the lack of any factual or legal framework, the interruptions from Ms Peric, and the delay on the part of the applicant in serving the documents on the respondent meant there was no proper basis on which to consider the injunctive relief sought by the applicant, even if I were to have assumed in the applicant’s favour such relief (that is, ordering the respondent to recommence Newstart payments to the applicant) was within the power of the Court to order under the AD(JR) Act or under the Federal Court of Australia Act 1976 (Cth).

34    Instead, in an attempt to assist the parties to resolve the applicant’s complaints at a substantive level and as cost-effectively as possible, I decided to refer the parties to an expedited case management conference with a Registrar of the Court. The Registrar would be able to conduct confidential discussions with each party and attempt to resolve the proceeding, as well as determine, on the basis of those discussions, what the best way forward might be in terms of case management if the proceeding were to continue.

35    A direction was given to the parties to attend a case management conference with a Registrar at 10.30 am on Tuesday, 23 December 2014. The applicant, and Ms Peric, were informed that if the applicant still wished to press his interlocutory application following the case management conference, the application would be listed for hearing in the new year, and that no orders could be made before the end of the year for the future conduct of the proceeding unless the parties were able to reach a consent position on the form of the orders by the following week.

36    I encouraged the respondent to provide whatever assistance it could at the case management conference with the Registrar, and in the short term, to see whether the respondent was able to find an interim solution to help the applicant financially.

EVENTS AFTER THE FIRST DIRECTIONS HEARING

37    A confidential case management conference was conducted by a Registrar of this Court on 23 December 2014. The applicant was accompanied by Ms Peric and a solicitor from Social Security Rights Victoria Inc. The case management conference was conducted on a confidential basis. The only information subsequently conveyed to the Court by the Registrar was the persons who attended the case management conference and the fact that the applicant’s complaints could not successfully be resolved.

38    The applicant has not provided the Court with an email address or facsimile number, but has provided a postal address. Ms Peric has provided her mobile number. Communication with the applicant could therefore only occur by the sending of written correspondence by post. Of necessity then, other than the sending of written correspondence by post, the only contact with the applicant was through Ms Peric.

39    On 29 January 2015, correspondence was sent from my chambers to the parties, the substance of which I reproduce below:

Her Honour has been told that the above proceeding was not resolved at the case management conference of 23 December 2014. Her Honour is minded to deal with the Applicant’s interlocutory application together with his entire application by way of an expedited hearing. Please advise by email or post whether a hearing date of either Thursday 5 March 2015 or Friday 6 March 2015 would be suitable to the parties. The matter will be listed for one day.

As part of preparation for hearing, the Applicant should set out the exact nature of his complaints against the Respondent, what orders he wishes the Court to make and the reasons why. In particular, her Honour would expect the Applicant’s submissions:

•    to identify the precise nature of the decision(s) being challenged (including identifying, where relevant, the particular Centrelink payment(s) to which each decision relates); and

•    for each decision being challenged, the ground(s) for the challenge.

If the Applicant intends to argue that Centrelink falsified his records or that a Centrelink decision was affected by fraud, the Applicant will need to make specific submissions on this and provide affidavit evidence to support this claim.

Please also note that any evidence on which the parties intend to rely at trial will need to be filed ahead of time (in the form of affidavit evidence, with documentary evidence to be exhibited to the affidavit as appropriate). Her Honour would be assisted if the Applicant could include in his evidence an explanation of the Centrelink payment(s) which the Applicant receives or contends he is entitled to, and copies of any relevant correspondence or medical certificates. Her Honour would be grateful if the Respondent could also address those matters if it becomes necessary.

Her Honour proposes to make directions giving dates for the filing of affidavit evidence and submissions as soon as the parties are able to confirm a trial date. Communications about those directions can be done by email or post and no court attendances will be required.

Her Honour has also been informed that Mr Graham Wells, a solicitor from Social Security Rights Victoria, attended the case management conference. If the Applicant wishes her Honour to grant leave for Mr Wells to represent him in the proceeding, her Honour would be happy to do so. The Applicant should be aware that unless he is formally represented in the proceeding, he will be required to conduct the matter himself at hearing.

(Emphasis in original.)

40    This correspondence was sent by express post to the applicant and was recorded as delivered.

41    Some two weeks later, on 11 February 2015, Ms Peric called my chambers and spoke to my associate. She informed my associate that the letter from my chambers had been received. She stated she was trying to find a new solicitor and foreshadowed a meeting with solicitors the next day. She otherwise did not respond to the contents of the letter sent to Mr Dauguet. Mr Dauguet himself has provided no response. In response to my associate’s request, Ms Peric stated it was not possible to speak with the applicant directly as he was asleep and “on a lot of painkillers”. My associate reminded Ms Peric that it would be necessary for the Court to deal with the applicant directly, or with a solicitor retained by him. My associate requested that, following the meeting with solicitors foreshadowed the next day, my chambers be updated as to whether the applicant would be represented and whether the proposed hearing dates of either 5 or 6 March were suitable.

42    On 13 and 17 February 2015 my associate called Ms Peric’s mobile phone and left messages seeking an update and requesting a return call. My associate also called on 15 and 16 February 2015 without leaving a message. No response was received in chambers. However on 17 February 2015 Ms Peric called the Victorian Registry. Ms Peric advised the Registry officer that she was in the process of obtaining legal representation and was intending to file further documents in the proceeding. The fact that Ms Peric stated that she (rather than Mr Dauguet) was obtaining legal representation foreshadowed the unusual circumstances which presented themselves before me on the return of the interlocutory application on 8 April 2015.

43    On 18 February 2015, having had no substantive response from Mr Dauguet or Ms Peric regarding the listing of the matter for hearing, I listed the matter for a further directions hearing on 2 March 2015 at 10.15 am. A notice of listing was sent by my chambers by express post to the applicant’s postal address and was recorded as delivered on 20 February 2015.

44    On 18 February, 20 February and again on 26 February 2015 a voicemail was left by a Registry officer on Ms Peric’s mobile phone, the substance of which was that the matter had been listed for a directions hearing on 2 March 2015 and the applicant or Ms Peric should contact the Registry as a matter of urgency. There were a number of other occasions on which a Registry officer called Ms Peric’s mobile phone without leaving a message: the calls went unanswered.

THE SECOND DIRECTIONS HEARING

45    At 10.20 am on 2 March 2015 the matter was called on for directions. The respondent appeared but there was no appearance for the applicant. Mr Dauguet and Ms Peric were called outside the courtroom, but there was no appearance. I then adjourned briefly so my associate could make a telephone call to Ms Peric’s mobile phone, which she did and left a message to the effect that the applicant had not appeared at this morning’s directions hearing, that the Court sought an explanation for his failure to attend and that he should call chambers as a matter of urgency.

46    No response was received to that message. Instead, Ms Peric took other steps, which I set out below.

47    At the directions hearing, the respondent made an oral application for the proceeding to be dismissed, with costs. It was submitted the Court could do so under s 10(2)(b)(ii) of the AD(JR) Act, under rr 5.22 and 5.23 of the Rules, and under s 37P(5) of the Federal Court of Australia Act. In support of that application, the respondent tendered a letter sent to Mr Dauguet in January 2015. The letter is dated 30 January 2015 and relevantly states:

The purpose of this letter is to inform you that section 152 of the Social Security (Administration) Act 1999 imposes a time limit for appealing the decision made by the Centrelink authorised review officer on 3 November 2014 (“the decision notice”) to the Social Security Appeals Tribunal (“the Tribunal”).

Specifically, if you do not lodge an application for review with the Tribunal within 13 weeks of the decision notice being given and your application is ultimately successful you could not be paid arrears of newstart allowance from the date of cancellation. Arrears could only be paid from the date of your application to the Tribunal.

I note that you have lodged an application under the Administrative Decisions (Judicial Review) Act 1977 with the Federal Court and that this matter will be listed for hearing in March 2015.

It would be in your interest, whilst still pursuing your Federal Court application, to lodge an application for review with the Tribunal immediately.

(Emphasis in original.)

48    The 13-week period would, accordingly, have expired in early February 2015. The respondent informed the Court that no review application had been lodged in the SSAT.

EVENTS FOLLOWING THE SECOND DIRECTIONS HEARING

49    On Friday 6 March 2015, Ms Peric called my chambers and spoke to my associate. She informed my associate she had seen solicitors on the preceding Friday (27 February 2015) and she had engaged them to act on her behalf. My associate informed Ms Peric of what had transpired at the directions hearing on Monday 2 March 2015. In a subsequent telephone conversation that day, Ms Peric gave my associate the name and contact details of the solicitors she said she had retained. The firm identified by Ms Peric was Pasha Legal.

50    Ms Peric was informed that Mr Dauguet would be sent orders made on 6 March 2015, together with a transcript from the directions hearing on 2 March 2015 so he could see what had occurred, and what he needed to do. Those documents were duly sent. An email was then sent to both parties summarising what had occurred, reminding Mr Dauguet of his merits review rights in the SSAT and the AAT, and reminding both Mr Dauguet and Ms Peric of the litigation representative procedure under r 9.63 of the Rules. The email was sent by express post to Mr Dauguet, together with the 6 March 2015 orders and the transcript of the 2 March 2015 directions hearing which Mr Dauguet did not attend.

51    The 6 March 2015 orders gave Mr Dauguet an opportunity to deal with the interlocutory application made by the respondent, and were intended to clarify whether Mr Dauguet was legally represented, following the communications to chambers that had occurred. Those orders provided:

1.     The applicant’s solicitor is to file a notice of acting in accordance with r 4.03 of the Federal Court Rules on or before 4pm on Wednesday 11 March 2015.

2.     The applicant’s solicitor is to file and serve a notice of change of address for service in accordance with r 11.01 of the Federal Court Rules on or before 4pm on Wednesday 11 March 2015.

3.     On or before 4pm Friday 27 March 2015, the applicant is to file and serve:

a.     an affidavit confirming that Ms Hina Pasha of Pasha Legal is instructed to act on his behalf in this proceeding;

b.     any written submissions he wishes to make in answer to the respondent’s application [made] at the directions hearing on 2 March 2015, that the proceeding be dismissed under r 5.23 of the Federal Court Rules or s 37P(5) and (6) of the Federal Court of Australia Act 1976 (Cth);

c.     an amended application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) setting out full particulars of the decision or decisions sought to be reviewed, the grounds of review and the relief sought; and

d.     an affidavit from the applicant, compliant with the Federal Court Rules, in support of the amended application which provides evidence of the decisions sought to be reviewed.

4.     On or before 4pm Tuesday 14 April 2015, the respondent file and serve any submissions and affidavits in response to the material filed by the applicant.

52    That same day, a woman identifying herself as a solicitor from a firm called Pasha Legal telephoned my chambers and spoke to my associate. She informed my associate she had been giving some “limited assistance” to Ms Peric, but did not act for Mr Dauguet, and was not “on the record” in the proceeding.

53    The solicitor from Pasha Legal was asked to provide an affidavit clarifying whether she acted for Mr Dauguet, or Ms Peric. On 13 March 2015 an affidavit from Hina Pasha of Pasha Legal was sent to chambers. A copy of that affidavit was subsequently sent by my chambers to the parties. In it Ms Pasha deposed:

Neither Pasha Legal nor I were acting on behalf of Mr Dauguet and Ms Peric at any time in this Court proceeding.

54    On 27 March 2015, the applicant and Ms Peric attended the Registry. Ms Peric sought to file an affidavit, but without annexures referred to in it. She was informed by the Registry the affidavit could not be sworn or affirmed in that form, nor received for filing. After contact with chambers, the Registry informed Ms Peric that the complete affidavit and annexures could be filed on or before Thursday 2 April 2015. The respondent was afforded an equivalent extension in relation to any reply material it sought to file.

55    An affidavit sworn by Ms Peric together with annexures was filed on 2 April 2015. In fact, it was not an affidavit that purported in any way to comply, or even attempt to comply, with the 6 March orders. There was no affidavit from the applicant. There were no submissions responding to the respondent’s interlocutory application for the proceeding to be dismissed.

56    The affidavit was instead from Ms Peric. Its main purpose was to support an interlocutory application, filed at the same time, seeking orders that Ms Peric be joined as a party to this proceeding. The application sought a number of other orders, none of which was interlocutory in nature, some of which repeated orders sought in Mr Dauguet’s application and the remainder of which sought relief for the benefit of Ms Peric and her own disputes with Centrelink.

57    There were, at least, some letters from Centrelink which related to the decision to cancel Mr Dauguet’s Newstart allowance, and to that extent the production of those letters advanced the understanding of the issues in dispute in this proceeding between Mr Dauguet and Centrelink. Aside from that, the affidavit was clearly for the collateral purpose of advancing Ms Peric’s interests in participating in this proceeding as she wished to, and introducing her own claims against Centrelink.

58    Insofar as the contents of the affidavit and the annexures are relevant to the matters the Court must decide, I refer to them below.

59    Neither the interlocutory application nor the affidavit was served on the respondent. This may be added to the list of unsatisfactory aspects of the way Ms Peric has behaved in relation to this proceeding. The respondent became aware of the application only due to a communication from the Court.

60    The interlocutory application filed by Ms Peric was returnable on 8 April 2015. The affidavit was obviously prepared with the assistance of a lawyer, and indeed the footer to the affidavit contained the contact details for a legal firm, Hughes Watson Marks Kennedy.

61    Mr Dauguet appeared at the hearing. Ms Peric was present in the body of the court. One Mr Davison, a solicitor from Hughes Watson Marks Kennedy, announced his appearance for Ms Peric. I clarified with Mr Davison that he did not have any instructions to act for Mr Dauguet. He confirmed he did not. Mr Davison made some submissions in support of Ms Peric’s interlocutory application. He explained he had assisted Ms Peric in compiling her affidavit, but was only retained the day before the hearing – that is, on 7 April 2015. He submitted Ms Peric was the “engine” behind Mr Dauguet’s proceeding, and that in practice Ms Peric was the “de facto applicant”. He emphasised that in the interlocutory application she also made her own claims about the denial of a carer’s allowance to her in respect of her son, who I note from the evidence is 17.

62    The respondent opposed the joinder application, on several bases. The respondent submitted that the requirements for joinder under rr 9.03 or 9.05 were not met (including in relation to r 9.05 an absence of power to join a person on the application of someone who was not a party); that the joinder was neither necessary nor appropriate given the final orders sought by Ms Peric; and that given the stage of the proceedings and non-compliance by Mr Dauguet with the 6 March orders, joinder should not be ordered.

63    On being asked what his attitude was to the joinder application by Ms Peric, Mr Dauguet submitted that Ms Peric did everything with Centrelink; and that he couldn’t remember things very well. In answer to a question from me, he stated that he did want Ms Peric’s affidavit to be treated as evidence in his proceeding about the cancellation of his Newstart allowance.

64    At the conclusion of submissions, I expressed the Court’s concern that Ms Peric sought to join the proceedings while legally represented, yet Mr Dauguet, the principal applicant, was to remain unrepresented. I emphasised the advantages for Mr Dauguet of legal representation and advice, as well as his current costs exposure in the absence of legal advice about his options, despite both the Court and the respondent having emphasised to him, and to Ms Peric, his rights of access to merits review. I emphasised to Mr Davison that neither Mr Dauguet nor Ms Peric had taken advantage of any form of merits review of the Centrelink decision they each complained about. Expressing gratitude for the fact that Mr Davison had appeared, and was able to advise Ms Peric at least, I gave Mr Davison an opportunity to speak to Ms Peric, to Mr Dauguet, and to the respondent’s legal representative, to see if anything could be sorted out so far as the future conduct of the proceeding as a whole was concerned.

65    Mr Davison then sought some additional time over the luncheon adjournment. When the Court resumed in the afternoon, Mr Davison was not present. Ms Peric informed the Court she had terminated Mr Davison’s instructions and now appeared for herself.

66    In those circumstances, I reserved my decision on Ms Peric’s interlocutory application and adjourned.

CONSIDERATION

67    Thus, there are two interlocutory applications to be determined: the respondent’s application for Mr Dauguet’s proceeding to be dismissed; and Ms Peric’s application to be joined as an applicant in the proceeding. Although Ms Peric’s application was second in time, it is appropriate to deal with it first.

68    I make the following findings about the nature of the decisions made by Centrelink concerning Mr Dauguet, and those concerning Ms Peric, which the affidavit from Ms Peric and the correspondence attached to it now reveal.

69    I take the correspondence from Centrelink, and from the Ombudsman in chronological order.

70    The first is a letter from the Assistant Director, Service Recovery, Older Australians, Disability and Carers Branch, to Ms Peric. It is dated 17 May 2013. It concerns Ms Peric’s complaint about Mr Dauguet not receiving the disability support pension, which was a decision made by Centrelink in 2011. The evidence does not explain why there is such a gap between the decision and Ms Peric’s complaints about it. The principal subject matter appears to be a request by Ms Peric that material on Mr Dauguet’s file be deleted. The letter responds:

Further to your contact with the Secretary’s office regarding Mr Dauguet’s Disability Support Pension, an officer from the Department of Human Services (the department) contacted you on 5 April 2013. During this conversation you requested that all information documented on Mr Dauguet’s departmental record and your departmental record that refer to a review of Mr Dauguet’s Disability Support Pension be deleted.

I have been advised that these documents are not able to be deleted. However upon your request, both Mr Dauguet’s record and your record now clearly state neither Mr Dauguet nor yourself have requested a review of the rejection of Mr Dauguet’s claim for Disability Support Pension.

I apologise, on behalf of the department, for the concern that this misunderstanding has caused Mr Dauguet and yourself.

71    The letter then assists Mr Dauguet, through Ms Peric, to complete a new application for a disability support pension, based on new medical information.

The department has considered Mr Dauguet’s original Disability Support Payment application and requires the attached claim form and treating doctor form to be completed to assess his current eligibility to Disability Support Payment. I have enclosed a Disability Support Pension (DSP) claim form and a new Medical Report form. Mr Dauguet may wish to complete the claim for DSP and have his treating doctor complete the Medical Report. These completed forms can be returned in the reply paid envelopes enclosed to the postal address of Centrelink, Disability Services, Reply Paid 7806, CANBERRA ACT 2610.

The department would like to again offer you the opportunity to attend a face to face meeting with a Manager from a Disability Support Team at a site convenient to you to assist with progressing Mr Dauguet’s new claim for Disability Support Payment.

72    There is no evidence these offers of assistance were taken up. There is no evidence a new application for disability support pension was made by Mr Dauguet.

73    The second letter is dated 30 June 2014, and is addressed to Ms Peric. It is from Ms Donna Craig, an individual Ms Peric mentions in her evidence elsewhere. Ms Craig was at the time the Manager of the “Escalated Complaint and Feedback team” for the Department of Human Services. The letter is a response to Ms Peric’s complaints to the Commonwealth Ombudsman, it seems about the same matters which form part of this proceeding, and of Ms Peric’s interlocutory application.

74    As to the suspension of Mr Dauguet’s Newstart allowance, the letter states:

As advised by letter dated 12 June 2014, Mr Dauguet’s Newstart Allowance has been suspended as he did not attended [sic] an Employment Services Assessment appointment. The letter also included advice about what to do if you disagree with this decision. As you were advised on 18 June 2014 by phone, your partner must attend an Employment Services Assessment appointment prior to the restoration of his payment.

75    There is no evidence Mr Dauguet has attended the Employment Services Assessment as he was required to.

76    There then follows a long explanation of why the carer allowance paid to Ms Peric for her son was cancelled. It should be set out in full because it is another example of the level of non-cooperation exhibited by Ms Peric with the Department, and explains, it seems to me, how she finds herself in the predicament she now complains about, which is largely due to her own inaction, or refusal to act in the way the scheme for the payment of social security benefits requires.

Our records show that on 3 May 2013 you were sent an automatically issued letter, explaining the review requirements for your Carer Allowance for Jordan Dauguet. Eligibility for Carer Allowance is required to be assessed under the Adult Disability Assessment Tool once a child turns 16 years. Jordan Dauguet turned 16 years of age on 3 August 2013. The letter asked you to complete:

•    an enclosed SA419 – Review of Eligibility for Carer Allowance – Caring for a person 16 years and over;

•    a Medical Report Carer Payment and/or Carer Allowance for a person – 16 years and over;

•    a Carer Review form SA419 and Medical Report (SA332a).

The letter advised that Carer Allowance payments for Jordan would cease from 3 November 2013 (16 years and 3 months) if the review forms were not returned.

As the requested forms were not returned, Carer Allowance for Jordan was cancelled on 4 November 2013; a letter was issued informing you of the cancellation and your appeal rights if you disagreed with the decision. This was reprinted and posted to you again on 28 May 2014.

You attended Greensborough Service Centre on 18 November 2013 and were issued with a Carer Allowance claim form for Jordan. There is no record of this claim being return [sic] and lodged with the department.

You lodged a medical report for Jordan on 8 April 2014 at Greensborough Service Centre. You state that you were told on this occasion that the review of Carer Allowance would be assessed and you would be paid arrears. The department has no record of this advice being given to you and this advice would be different to the written advice provided to you upon the cancellation of Carer Allowance in November 2013.

As the medical report was lodged more than 13 weeks after the cancellation advice letter dated 4 November 2013, the Carer Allowance for Jordan Dauguet cannot be restored. If the review and medical report had been returned by the due date, an assessment on your son’s entitlement would have been completed and if entitled a transfer to an adult care receiver may have occurred. As the review forms was not [sic] returned by the due date a new claim is required to support the medical information you lodged on 8 April 2014.

The policy supporting this decision is contained in the Guide to Social Security Law: 3.6.7.42 – Qualification for CA (child) – Transition (Turning 16 Years of Age) from CA (child) to CA (adult) (printed from online and attached).

The reasons for the decision to cancel Carer Allowance for Jordan Dauguet and the options available to you, have also been provided to you in subsequent contacts with the Customer Relations Unit on 27 May 2014 and by Leanne on 02 June, 04 June and 10 June 2014.

In your previous contacts with the department you have stated that you did not wish to lodge an appeal, as you do not believe that the cancellation of your Carer Allowance is a decision. I confirm to you again that the cancellation of your Carer Allowance is a decision, and can be appealed by you if you disagree with the decision. However, as any appeal lodged now would be after 13 weeks of being given notice of the decision, you may only receive your entitlement from the date you apply for review.

During your conversation with Leanne, you requested to talk to a “manager in Canberra”. This request was discussed with me. As, there is no discretion to change the decision to cancel the Carer Allowance for Jordan Dauguet outside of an appeal process and you had been advised of your options, I declined to escalate this issue further.

77    Ms Peric has an ongoing complaint about the cessation of her carer’s allowance for her son in part at least by alleging there was some deliberate falsity about the way her son’s medical condition was recorded. She alleged (in a letter which is also annexed to her affidavit):

On Jordan record his medical condition is LISTED AS

MUSCULO-SKELETAL DISORDER

SPINA BIFIDA

Which is listed as not    Recognised Disability.

I have evidence of this.

THEY have falsely changed his medical condition.

My son has a recognised centrelink Disability Which is a physical

Disability, which makes him qualify under the law.

78    An explanation for the way the medical conditions suffered by Ms Peric’s son are expressed in Centrelink records (which is the subject of complaint by Ms Peric) is given in the 30 June 2014 letter:

The information contained in the most recent medical report provided by you on 8 April 2014, lists the medical conditions for Jordan Dauguet as Spina Bifida Occulta of L5/S1 and Thoracic Spinal Scoliosis. The medical report was signed by Dr Raouf Megally of the St Mina Medical Centre on 8 April 2014.

Due to the multiple types of medical conditions, purely for the purposes of recording the condition type on our records, medical conditions are placed in different over-arching groups. This is the reason the conditions have been coded under the ‘muscular-skeletal – other’ group and also the ‘Spina Bifida’ group – which correctly covers the Spina Bifida Occulta of L5/S1 and the Thoracic Spinal Scoliosis that were listed in the medical report.

I need to emphasise, while you feel this is an incorrect record of the condition, it meets our departmental standards of record keeping and has not had any impact on the assessment and the outcome of the review.

There are a number of factors that are used to determine eligibility for Carer Allowance or Carer Payment. The type of condition and whether it is classed as a ‘recognised disability’ is not factored into the assessment. The Adult Disability Assessment Tool is used when assessing a claim for Carer Allowance or Carer Payment. This determines the care receiver’s functional ability, emotional state, behaviour and special care needs.

79    Finally, this letter deals with allegations of fraud made by Ms Peric, which are made again in both Mr Dauguet’s application and in Ms Peric’s affidavit material in support of her interlocutory application. Ms Peric appears to have no compunction in making very serious allegations against whomsoever she chooses. The 30 June 2014 letter responded:

An investigation into your allegations of fraudulent staff activity has been investigated by the Internal Fraud Control and Investigations branch and they have found no instances of unauthorised access or inappropriate changes to your record.

80    The next letter comes again from Ms Craig, to Ms Peric “as nominee for Mr Alain Dauguet”, and is also responsive to Ms Peric’s complaints to the Commonwealth Ombudsman. It is dated 8 July 2014.

81    It first explains why the fact that Ms Peric lodged a new medical certificate for Mr Dauguet does not necessarily relieve him of the obligation to attend for an Employment Services Assessment, but only does so if he is granted an exemption from attending. The letter explains:

You have advised that your partner, Mr Alain Dauguet lodged a medical certificate; however he has not been granted an incapacity exemption.

When a customer lodges a medical certificate, this does not automatically result in the department granting a temporary incapacity exemption. When we assessed the medical certificate provided by Mr Dauguet, all relevant evidence was considered, including:

•    the new medical certificate

•    any current and valid assessment of Mr Dauguet’s work capacity and

•    The impact of any conditions on the medical certificate that have not been assessed by an Employment Services Assessment (ESAt).

As the exemption was not granted, Mr Dauguet is subject to Activity Test/participation requirements. An Employment Pathway Plan (EPP)/Individual Participation Plan (IPP) should be negotiated in a manner that takes into consideration his current work capacity.

Mr Dauguet may still be assessed as having a temporary reduced work capacity or a partial capacity to work based on his most recent, current and valid assessment of the his work capacity [sic]. This would be determined by attending an Employment Services Assessment (ESAt). Mr Dauguet must attend this appointment in person.

The purpose of an Employment Services Assessment (ESAt) is to assess the impact of medical conditions and/or other identified barriers on the job seeker’s capacity to participate in work or employment services and to refer the job seeker to appropriate employment services assistance.

The Suspension of Mr Dauguet’s Newstart Allowance

As we were not able to grant Mr Dauguet with a further medical exemption, we arranged an ESAt. As Mr Dauguet did not attend this appointment, his Newstart Allowance has been suspended. The Newstart Allowance will not be restored until the ESAt is attended.

Our records show that you have made multiple contacts to us regarding this issue. This includes contact via the call centre, Customer Relations Unit, Assessment Services and in person. Please consider this a consolidated response on behalf of the department regarding this issue.

82    The letter then explains the decision-making process about Mr Dauguet’s disability support pension application, dating back to 2011:

I would like to provide a summary regarding the rejection of Disability Support Pension (DSP) in 2011:

•    You attended an assessment on Mr Dauguet’s behalf on 12 July 2011 and advised the Assessor that Mr Dauguet was too unwell to attend. You advised the Assessor that you were lodging a Disability Support Pension (DSP) claim for Mr Dauguet and would not show the Assessor the medical report form, only the medical certificate. The conditions assessed were L5/S1 spondylosis (spinal condition), diabetes type II and nerve root compression lumbar spine.

•    Mr Dauguet lodged a DSP claim on 12 July 2011. The medical report form provided with Mr Dauguet’s claim lists his medical conditions as L5/S1 for a minal stenosis (spinal condition), type 2 diabetes, obese, peripheral neuropathy and hypertension.

•    Mr Dauguet was referred for a Job Capacity Assessment (as a file assessment) for his DSP claim which was completed on 6 October 2011. All of the medical conditions listed in the medical report form were assessed, none of which were considered to be fully diagnosed, treated and stabilised.

•    To qualify for DSP, a person must have a physical, intellectual or psychiatric impairment and be assigned an impairment rating of at least 20 points and a continuing inability to work. To be assigned an impairment rating, the condition must be permanent and fully diagnosed, treated and stabilised. The impairment must be sufficient to prevent the customer from doing any work within the next 2 years and either prevents them from undertaking educational or vocational or on the job training during the next 2 years or such training is unlikely to enable the customer to do any work within the next 2 years.

•    Mr Dauguet’s DSP claim was rejected on 12 October 2011 as a result of the Job Capacity Assessment report.

•    On 22 December 2011, Mr Dauguet lodged further medical evidence to appeal the decision to reject his claim for DSP. Mr Dauguet was referred for another Job Capacity Assessment with the new medical evidence. This report was not completed and was returned by the Assessor as the medical evidence provided to appeal the decision was greater than 2 years old. You were advised on 29 December 2011 that new medical evidence was required if you would like to appeal the decision to reject Mr Dauguet’s DSP claim. An appeal was completed, however you advised that you never requested an appeal and you were dissatisfied that an appeal was registered and completed, therefore the review was deleted and the decision was not reviewed.

Mr Dauguet will need to lodge a new claim for DSP along with new medical information and have a new Job Capacity Assessment if he would like to test his eligibility for DSP.

I acknowledge that you disagree with the decision made in relation to Mr Dauguet’s claim for Disability Support Pension. The options available to you have been provided to Mr Dauguet and to you in this letter, and previously on 12 October 2011.

I note that you have requested to talk to a Manager in Assessment Services. As, there is no discretion to change the decision to reject Mr Dauguet’s Disability Support Pension claim, outside of an appeal process and you had been advised of your options, I declined to escalate this issue further.

83    Critically, for the discretions I propose to exercise in this proceeding, the letter then advises of review rights. It states:

You have the right to appeal the decisions we have made. If you do not agree with a decision we have made, you may:

•    contact us and ask for a review of the decision

•    go to the Social Security Appeals Tribunal if you disagree with the review

•    go to the Administrative Appeals Tribunal if you disagree with the Social Security Appeals Tribunal’s decision

If you disagree with a decision, contact us as soon as possible. It is important to ask for a review within 13 weeks of being notified about the decision. If your request for a review is more than 13 weeks after being notified and the decision can be changed, you may only receive your entitlement from the date you requested the review.

84    The evidence does not reveal any attempts to access review by either Ms Peric or Mr Dauguet. Any adverse effects on Mr Dauguet, or Ms Peric, from a failure to access these review rights promptly (such as the expiration of the 13-week period and the consequent inability to recover arrears) are their joint responsibility for refusing to take the advice given to them.

85    I note it is only after this letter that Mr Dauguet’s Newstart allowance is stopped. Annexed to the affidavit is a notice of decision addressed to Mr Dauguet and dated 13 August 2014. The decision is entitled “Suspension of your Newstart Allowance” (emphasis added). However other evidence suggests this may have been a cancellation decision: see [86] below. In other words, Mr Dauguet was given notice of what he had to do by Ms Craig, did not do it, and thereafter suffered the consequence which had been foreshadowed. Despite claiming to be Mr Dauguet’s “nominee” to Centrelink, Ms Peric appears to have stood by and allowed this to occur.

86    It appears that there was an internal review of the decision made on 13 August 2014. Ironically, this seems to be the review Ms Peric adamantly insists neither she nor Mr Dauguet asked for, notwithstanding a review could only be to Mr Dauguet’s benefit. Her point seems to be that she sought review of a suspension of Mr Dauguet’s Newstart allowance, rather than a cancellation, and this was important because it affected entitlements to arrears. Whether the review decision was correct to describe what occurred as a cancellation is the kind of issue that could have been raised before the SSAT and the AAT, had Mr Dauguet and Ms Peric pursued those options. The internal review decision is dated 3 November 2014 and is expressed to relate to “the decision made on 13 August 2014 to cancel your Newstart Allowance”.

87    The review decision identifies the issues in the following way:

The main issues in this review are whether:    

•    You are required to attend an Employment Services Assessment appointment.

•    You are or were otherwise qualified to receive Newstart Allowance.

88    The review decision describes the nature of an Employment Services Assessment.

A person in receipt of Newstart Allowance and applying for an activity test exemption may be referred for an Employment Services Assessment (ESAt).

An Employment Services Assessment (ESAt) is an assessment undertaken by a Health or Allied Health Professional that focuses on the impact of a job seeker’s identified barriers to their capacity to work, and ensures a referral is made to the most appropriate employment service to support their needs. A person’s circumstances will determine whether they are referred to a Medical ESAt or Non-medical ESAt. Assessors use relevant available information about the job seeker including current and past medical information and prior participation and employment history. Assessors can also liaise with treating doctors and relevant health professionals as required.

The Employment Services Assessment (ESAt) process ensures that disadvantage job seekers [sic] are referred to the most appropriate employment service assistance, based on an assessment of the impact of identified barriers on the person’s capacity to participate.

You lodged a medical certificate on 7 May 2014 seeking an exemption from the activity test based on the impact of your medical conditions on your ability to participate. The department considered your request and decided not to exempt you from the activity test. It was determined by the department under section 63 of the Admin Act that you should attend an Employment Services Assessment (ESAt). The Employment Services Assessment (ESAt) would assist the department in referring you to the most appropriate employment service assistance.

89    The review decision then sets out the course of events, mostly around the requirements that Mr Dauguet attend an Employment Services Assessment. Without setting out the lengthy description in the review decision, the decision reveals that Mr Dauguet was sent at least six pieces of correspondence about appointments made for him at Centrelink offices to attend for these assessments. It showed that on each occasion Mr Dauguet did not attend. The review decision records that the explanation given (by Ms Peric, apparently) was Mr Dauguet’s medical conditions. The letter explains why the Department did not consider this a valid reason:

As you can see you have repeatedly failed to attend the Employment Services Assessment (ESAt) appointments made for you. You have been lodging medical certificates from your Doctor, which means that you are capable of attending your Doctor’s Surgery to be examined by your Doctor and given a medical certificate.

I am satisfied you are capable of attending an Employment Services Assessment (ESAt) appointment, which would be conducted by a Health or Allied Health Professional.

90    The review officer then informs Mr Dauguet that he considers the decision under review to be correct. He adds:

Please note: I have not reviewed the rejection of your Disability Support Pension because this decision was reviewed by an Authorised Review Officer on 26 March 2013. If you are not satisfied with this decision you can appeal the decision to the Social Security Appeals Tribunal.

91    The review rights, and the need to act promptly, are then emphasised to Mr Dauguet:

If you do not agree with this decision, you can apply for a review at the Social Security Appeals Tribunal (SSAT). You can find more information about the SSAT and make your application for review online by going to their website ssat.gov.au or calling them on 1800 011 140.

If you do not agree with a SSAT decision, you can apply to the Administrative Appeals Tribunal.

All of the above are free of charge.

If you do not ask for the decision to be reviewed within 13 weeks of receiving this letter and the decision is changed, you may only receive your entitlement from the date you requested the review.

There is no time limit if you are asking for a review about money you owe us, however you may have to pay back the money while the decision is being considered.

92    Finally, Ms Peric’s affidavit annexes a letter from the Commonwealth Ombudsman dated 19 November 2014. It relates to a complaint made before Mr Dauguet received the internal review decision, as it refers to this decision as still pending. It comprehensively addresses four complaints made to the Ombudsman by Ms Peric, including one about her daughter who apparently is also in receipt of social security benefits by way of Youth Allowance. The relevant parts of the letter to the topics which are the subject of this proceeding, or of Ms Peric’s interlocutory application, are the following:

Centrelink provided the following information about Mr Dauguet:

•    His payment is cancelled because he has repeatedly failed to attend appointments for an Employment Services Assessment.

•    A payment pending review cannot be granted because his payment is now cancelled.

•    If he would like to receive a Centrelink payment he will need to reapply.

•    Centrelink acknowledge that he has asked for a review of this decision, and that this review was allocated to an Authorised Review Officer on 27 October 2014.

•    Centrelink confirmed that he had provided two recent medical certificates on 7 May 2014 and 21 July 2014.

•    Centrelink advised that these certificates were accepted and an assessment took place to see if he could be granted an exemption.

•    Centrelink acknowledge that both medical certificates indicate that his medical condition is permanent.

•    However his last JCA determined that he still had a partial capacity to work 15-22 hours per week. Therefore an exemption could not be granted.

•    It appears that both you and your husband were notified of this decision and the need to continue to meet your compulsory Activity Test/participation requirements.

Centrelink provided the following information about your Carers Allowance (CA) review for Jordan:

•    Centrelink advised there is no record of claim for your son Mr Jordan Dauguet or an appeal for Carers Allowance.

•    You were in receipt of a CA for Jordan under the child carer provisions from 11 August 1998 to 3 November 2013.

•    When Jordan turned 15 years and 9 months, Centrelink sent you a letter inviting you to test your eligibility for CA for Jordan under the adult care provisions using the streamlined transfer from child to adult process.

•    The letter included two forms which needed to be returned before Jordan turned 16 years and 3 months or 3 November 2013.

•    It appears that you did not return these documents within the required time.

•    You did provide a medical report on 8 April 2014, however this was outside of the allocated time.

•    You will therefore need to lodge a new claim for CA for Jordan.

Centrelink provided the following information about your Restricted Service Arrangements (RSA):

•    On 24 October 2014 Centrelink sent you a letter advising that your RSA has been extended.

•    You are currently on a one main contact restriction, which means that you can only contact Centrelink by telephone using one main telephone number.

•    Your previous one main contact has since changed office and you now have a new one main contact. Her name is Jane and you can contact her on 03 9516 4544.

•    Your next review will be on 22 January 2015.

93    In light of that information, the Ombudsman’s investigations officer concludes:

I propose to finalise my investigation of your complaint at this point. I have made this decision based on the following reasons:

•    Your daughter’s payments have been restored, all arrears have been paid and she is currently exempt from looking for work.

•    Centrelink has allocated your husband’s appeal to an Authorised Review Officer who will consider his appeal about the cancellation of his NSA.

•    It appears that there is no record of an appeal being lodged about your CA. However it appears that you did not provide the correct forms in time for your child’s CA to be transferred to an adult CA. It appears that you will need to reapply for this payment if you wish to continue to receive it.

•    You are on a RSA which will be reviewed on 22 January 2014 [sic]. Centrelink have now provided you with a new one main point of contact, as requested.

I do not think that further investigation will provide a better outcome for you. I understand that this may not be the outcome you wanted, but I do not think further investigation would achieve a better result.

94    Two more findings about the material annexed to Ms Peric’s affidavit should be made.

95    First, Ms Peric annexes several letters which purport to be written by Mr Dauguet to Centrelink. They are dated 26 September 2014 and 27 October 2014. The 27 October letter is signed with a signature that resembles the signature on forms purporting to be forms coming from Mr Dauguet. I infer it is Mr Dauguet’s signature on that letter. It is, for example, very different to Ms Peric’s own signature on the affidavit itself. The 26 September 2014 letter does not bear a handwritten signature, only Mr Dauguet’s name at the end of it.

96    I am not satisfied the content of either letter is written by Mr Dauguet. In my opinion, the only available inference is the content emanates from Ms Peric. The content resembles the language used in the 24 July 2014 letter. It is resonant of her complaints as recorded in the Departmental correspondence and in the Ombudsman correspondence. It resembles her language used in her affidavit itself. It also resembles the language and descriptions she has used when she has addressed the Court in this proceeding. Yet, the letters use the first person “I” and pretend to be the words of Mr Dauguet.

97    The second finding is in a similar vein, but relates to what is in the body of Ms Peric’s affidavit. At least in two places, when describing Mr Dauguet’s complaint about his Newstart allowance, Ms Peric uses the first person, as if the Newstart allowance were her own. At [19] of her affidavit she swears:

On 8 October 2014 I lodged (by facsimile) an appeal in writing against Centrelink’s decision to suspend the Allowance by way of letter dated 26 September 2014.

(Emphasis added.)

98    At [20]-[21] she swears:

In addition, Centrelink removed my appeal record from their database. This is confirmed by way of letter dated 3 November 2011 [sic] from the Review Officer, Ian Anderson and also by way of the letter dated 19 November 2014 (at Exhibit “NP-4”). Now produced and shown to me marked “NP-6” is the letter dated 16 October 2014 from Centrelink my response dated 27 October 2014 and the letter dated 3 November 2014 from Ian Anderson.

Centrelink incorrectly claimed that my appeal was against the decision to cancel the Allowance and that it was lodged on 14 October 2014, which was the day after Centrelink cancelled the Allowance. The result is that if I appealed the decision to cancel the Allowance on or after 14 October 2014 then I would be required to re-apply for the Allowance based on cancellation. Whereas if I appealed the decision to suspend the Allowance Mr Dauguet would be entitled to the arrears.

(Emphasis added.)

99    At [23] she swears:

I refer to paragraph 19 and say further that I lodged an appeal against the decision to suspend the Allowance. On 10 October 2014 I attended the Centrelink Office at Newmarket to check on the progress of my appeal and was advised that the Allowance was restored. The medical certificate that the Centrelink Officer relied upon to confirm Mr Dauguet’s payments were restored is dated 17 July 2014 and was lodged on 17 July 2014. The medical certificate covers the period from 18 July 2014 to 17 October 2014. The lump sum amount that Mr Dauguet was owed at that time was for approximately 9 weeks. Accordingly, the Centrelink Officer advised me that part-payment of the lump sum would initially be paid into my account and the residue would be paid into my account upon the Participation Team internally receiving a medical certificate relating to Mr Dauguet that I had provided on 17 July 2014. I confirm that the sum of $438.10 was paid into my account.

(Emphasis added.)

100    At [25] she swears:

I believe that Centrelink is attempting to avoid acknowledging that the payment of $438.10 was a part-payment of the lump-sum arrears owed to me as at 10 October 2014.

(Emphasis added.)

101    At [34] she swears:

On 8 October 2014 I appealed this decision together with the appeal in relation to the Allowance (Exhibit “NP-5”).

(Emphasis added.)

102    The “appeal” referred to here is the letter purportedly authored by Mr Dauguet.

103    At [35] she swears:

Again I claim that Centrelink fraudulently said that the matter could not be reviewed as it had already been reviewed by an Authorised Officer on 26 March 2013. This is evident on the letter dated 3 November 2014 from the Authorised Review Officer, Ian Henderson (Centrelink). However, I never requested a review prior to 8 October 2014. I believe that Centrelink wanted me to make application for the decision to be reviewed at the Social Security Appeals Tribunal based on a purported review on 26 March 2013 that was not requested (Exhibit “NP-6”).

(Emphasis added.)

104    The reference to “NP-6” is to a letter from Centrelink addressed to Mr Dauguet, a letter purportedly from Mr Dauguet to Centrelink, and a further letter from Centrelink addressed to Mr Dauguet.

105    These extracts demonstrate the extent to which Ms Peric conducts herself as if Mr Dauguet’s Newstart allowance is her own, not only in her dealings with Centrelink, but in terms of how she speaks about the monies paid by the Commonwealth to Mr Dauguet.

The joinder application

106    The interlocutory application invokes r 34.105(1), which is the rule applicable to joinder in native title proceedings. In light of that clear mistake, the respondent did not object to this being treated as an application under Pt 9 of the Federal Court Rules. The respondent properly drew the Court’s attention also to the power under s 12 of the AD(JR) Act to join a person, given this is an AD(JR) Act application.

107    Rule 9.03 of the Rules provides:

9.03    Joinder of applicants with joint entitlement

If an applicant claims relief to which any other person is entitled jointly with the applicant:

(a)     each person so entitled must be joined as a party to the proceeding; and

(b)     any person so entitled who does not consent to being joined as an applicant must be made a respondent to the proceeding.

108    There is no suggestion in the evidence that Ms Peric is “entitled jointly” with Mr Dauguet to relief sought in the proceeding. The relief sought relates to the payment of Newstart allowance to Mr Dauguet. The Newstart allowance which is the subject matter of the proceeding is payable to Mr Dauguet. It is his eligibility, or ineligibility under the Social Security Act for the benefit which is relevant. It is his conduct, in relation to the requirements under the legislative scheme (such as attending for job assessments), which is in issue, in terms of the lawfulness of the cancellation decision. Ms Peric has no relevant legal entitlement to be paid Mr Dauguet’s benefit. There is some evidence from Ms Peric that Mr Dauguet’s allowance was previously paid into “her” bank account. But there is no evidence about whether the bank account was held jointly with Mr Dauguet or not. Even if it was not, the fact that Mr Dauguet (one must assume) has given a direction to Centrelink about where to pay his allowance is not material.

109    I discount, for the purposes of the application of r 9.03 (and r 9.05 below) the misconceived claims seeking orders from the Court that compel Centrelink to abandon restrictions it has placed around Ms Peric’s attendances at Centrelink offices. There is no evidentiary foundation to find any unlawfulness in what Centrelink has done.

110    Rule 9.05 relevantly provides:

9.05    Joinder of parties by Court order

(1)    A party may apply to the Court for an order that a person be joined as a party to the proceeding if the person:

(a)         ought to have been joined as a party to the proceeding; or

(b)     is a person:

(i)     whose cooperation might be required to enforce a judgment; or

(ii)     whose joinder is necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined; or

(iii)     who should be joined as a party in order to enable determination of a related dispute and, as a result, avoid multiplicity of proceedings.

(2)    A person must not be added as an applicant without the person’s consent.

…

111    The respondent submitted there was authority suggesting that the way in which r 9.05 is currently expressed (and in contrast to O 6, r 8 of the former Rules) means that only a person who is already a party to a proceeding can apply to have another joined under r 9.05. On its face, that is what the rule says, and that has been found to be its effect: see McAlister v New South Wales (2014) 223 FCR 1; [2014] FCA 702. There is no suggestion that the analysis by Edmonds J in McAlister is plainly wrong and I adopt it. Like his Honour, notwithstanding the view I take about the limited scope of r 9.05, I consider the alternative position that the rule should be construed more widely to enable a non-party to make an application. Even if that is the case, I would not exercise my discretion to permit the joinder of Ms Peric under r 9.05.

112    Ms Peric is not a person who “ought” to have been joined to the proceeding, because she has no legal right or interest in the relief sought by Mr Dauguet concerning the cancellation of his Newstart allowance. It may be accepted she has a practical interest as Mr Dauguet’s domestic partner, and perhaps even a financial one, but those interests are of a different nature.

113    The law operates on the basis of individual autonomy and responsibility. It requires the person whose interests are affected to be a party, unless that person is incapable of participating in a proceeding and giving instructions to a lawyer, if a lawyer is retained. In those circumstances the law has always provided for a litigation guardian to be able to conduct the proceeding on behalf of the person under an incapacity. If that occurs, not only is the litigation guardian liable for the costs of the proceeding, but the litigation guardian has fiduciary duties to the represented person, which the Court can oversee and enforce. Where a person is represented by a lawyer, again the lawyer has a suite of professional and ethical responsibilities towards the party, which are designed to ensure that the party’s interests are advanced by the litigation, rather than those of the lawyer, or anyone else.

114    To allow a person, outside these two circumstances, to conduct litigation on behalf of another is fraught with the risk of disadvantage of the interests of the party concerned. The Court will not be able to know whether the party whose claim is in issue is truly in agreement about the manner in which the litigation is being conducted, and the decisions that are made. If the proceeding is settled, the Court cannot know who has driven the settlement. There is no accountability in such a circumstance.

115    The limited privileges given to a “McKenzie friend” also recognise the need for an individual to conduct her or his own litigation, and to be personally and legally responsible for it. That is why a McKenzie friend generally cannot speak in court. The term “McKenzie friend” arose from the decision of the UK Court of Appeal in McKenzie v McKenzie [1971] P. 33. In that case, Davies LJ cited with approval (at 38) the following dictum by Lord Tenterden CJ in Collier v Hicks (1831) 2 B. & Ad. 663 at 669:

Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice; but no one can demand to take part in the proceedings as an advocate, contrary to the regulations of the court as settled by the discretion of the justices.

(Emphasis added.)

116    Superior courts in particular continue to be wary of permitting one person to act as advocate for another, relying substantially on the professional duties owed by lawyers to their clients, to their opponents and to the court, all of those duties contributing to the administration of justice according to law: see for example Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 230 at [74]-[83] per Stein JA, Mason P and Sheller JA agreeing; Cristovao v Registrar Caporale [2012] FCA 1329 at [28]-[29] per Murphy J. Although there may be a discretion, perhaps appropriately seen as implied from the Court’s function in s 23 of the Federal Court of Australia Act, to permit a person who is acting as a McKenzie friend to make submissions, the circumstances would in my respectful opinion need to involve something such as an otherwise incurable denial of procedural fairness for such a step to be taken.

117    When the rare step is taken of exercising discretion to permit a “McKenzie friend” or another support person to speak on behalf of a party, it may be important to only allow the making of oral submissions in support of a party “in circumstances in which the judge can observe the demeanour, response, and comprehension of the party”: see Nepal v Minister for Immigration and Border Protection [2015] FCA 366 per Edelman J at [17]. These sorts of restrictions recognize the need for great caution in such circumstances. Although Edelman J did foreshadow allowing a person who lived with the applicant before his Honour to make oral submissions on the applicant’s behalf, the circumstances of that case had added complexity. Provisions in the Migration Act 1958 (Cth) might be said to have allowed that course to occur, and the person had previously been allowed to speak on behalf of the applicant, having, Edelman J noted (at [2]), “a strong command of English” and “an understanding of law and legal principle although he is not a lawyer.” In any event, Edelman J foreshadowed permission to make oral submissions, not to conduct the entire proceeding: there was no suggestion the applicant would be relieved entirely from conducting the proceeding himself. Nor was the person joined as a party.

118    Accordingly, r 9.05(1)(a) is inapplicable. Rule 9.05(1)(b)(i) is irrelevant to the present circumstances.

119    For the same reasons r 9.05(1)(b)(ii) is inapplicable. The issues in dispute in this proceeding concern Mr Dauguet’s entitlement to Newstart allowance, and that entitlement does not depend on any right or entitlement held by Ms Peric.

120    Nor in my opinion is r 9.05(1)(b)(iii) applicable. Ms Peric’s claims concerning the cancellation of her carer’s allowance and the restrictions placed on her by Centrelink are not a “related dispute”. Ms Peric and Mr Dauguet are related, it seems, as domestic partners. But their disputes with Centrelink are not related: they are legally and factually independent of each other. Whether Mr Dauguet is entitled to Newstart, or whether his Newstart allowance was unlawfully cancelled, is a separate and independent question from whether Ms Peric’s carer’s allowance should have been cancelled, or whether she is entitled to a carer’s allowance for her son.

121    If Ms Peric wishes to, she can bring a separate proceeding about the cancellation of the carer’s allowance payable to her in respect of her son. This cancellation occurred on 4 November 2013, well prior to the cancellation of Mr Dauguet’s Newstart allowance. There is no explanation as to why Ms Peric did not simply commence a proceeding herself – given she seems to be determinedly opposed to exercising her merits review rights. The two proceedings could have been heard and dealt with together, if there were evidence that this would be more effective and efficient. At least on the evidence as it stands, a proceeding brought by Ms Peric making the same kind of claims would, however, likely fail because she has failed to access the three tiers of merits review available to her, because she is able (as Centrelink have repeatedly pointed out to her in the correspondence which is annexed to her affidavit) to make a fresh application which will then be considered on its merits, and because no errors of law in Centrelink’s decision-making have been identified.

122    As I have noted above, the respondent very properly drew the Court’s attention to s 12 of the AD(JR) Act. The joinder power in that provision is wider than r 9.05 and is available in the present circumstances. However, I do not consider Ms Peric is a person “interested” in the question whether the cancellation of Mr Dauguet’s Newstart allowance was lawful. Again, as I have noted above, she obviously has a personal and practical interest, and insofar as Mr Dauguet is a member of her family group (I infer), the finances of the family are affected by the payment or non-payment of social security benefits to him. That places Mr Dauguet’s family, and Ms Peric in particular, in no different position to every family member in every family where there is a person receiving benefits under the Social Security Act: the money available to the family will be increased, or decreased, depending on the receipt of the relevant benefit. That does not entitle each family member to be a party to a proceeding concerning the lawfulness of the suspension or cessation of that benefit.

123    As the analysis by Branson J in Friends of Hinchinbrook Society Inc v Minister for Environment (No 1) (1996) 69 FCR 1 at 12-17 makes clear, one factor to consider in applying s 12 is whether the prospective party’s contribution to, or perspective on, the issues in the proceeding is different from the parties with the primary interest. That is not the case with Ms Peric. Alternatively, it may be that the effect of the decision under review on the prospective party is different from the effect on the moving party. In all cases, there need to be some factors which distinguish the rights or interests of the prospective party from the moving or responding parties. That is not the case with Ms Peric: in all senses what she really wants to do is to take over the litigation and run it instead of Mr Dauguet. She has sought to take that role in her dealings with Centrelink and the Ombudsman, as the evidence to which I refer above amply demonstrates. She treats Mr Dauguet’s social security payment as her own, and speaks about it in those terms. She pretends to be Mr Dauguet in correspondence and moves interchangeably between describing what she does in his name as “I” and referring to him in the third person.

124    Neither s 12, nor the Rules, are intended to be used to allow a person in Ms Peric’s circumstances to join a proceeding about the payment of social security entitlements to another individual, no matter how interchangeably those individuals treat their interests in their private and domestic relationships.

125    Finally, a further factor which has persuaded me to refuse to exercise my discretion to join Ms Peric is the underlying hopelessness of the claims made by Mr Dauguet. I deal with these in more detail below. There is no utility in joining Ms Peric to a proceeding which must fail. Nothing in Ms Peric’s material alters my view of the hopelessness, in a legal sense, of the claims made by Mr Dauguet. Although her affidavit provides at least a fuller factual picture of how Mr Dauguet’s Newstart allowance came to be cancelled, the material does not reveal any legal error in Centrelink’s decision. Indeed, no legal errors are substantively alleged, aside from an incantation of a denial of natural justice. No such denial is apparent: to the contrary, Mr Dauguet seems to have received continued consideration of the complaints made to Centrelink about the cancellation of his Newstart allowance.

The dismissal application

126    In my opinion Mr Dauguet’s application should not be permitted to continue in this Court, and should therefore be dismissed, for two reasons. First, the applicant has not sought to progress his matter in any way, let alone in a timely way. Steps taken have been at the Court’s initiative and insistence, and even then, the applicant has failed to cooperate. How much of this is due to Ms Peric’s influence is difficult to ascertain on the evidence, but it appears that access to legal advice, or the possibility of legal advice – which the evidence demonstrates has now occurred on several occasions – has not improved the situation. Second, the applicant has an entitlement to apply for merits review with the SSAT, and if unsuccessful to apply for another tier of merits review in the AAT, and the appropriate forum for his complaints is a merits review forum.

127    Section 10(2)(b)(ii) of the AD(JR) Act provides:

(b)    the Federal Court or the Federal Circuit Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason:

(i)    …

(ii)    that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.

128    Rules 5.22 and 5.23 of the Federal Court Rules relevantly provide:

5.22     When a party is in default

A party is in default if the party fails to:

(a)    do an act required to be done, or to do an act in the time required, by these Rules; or

(b)    comply with an order of the Court; or

(c)    attend a hearing in the proceeding; or

(d)    prosecute or defend the proceeding with due diligence.

5.23    Orders on default

(1)    If an applicant is in default, a respondent may apply to the Court for an order that:

(a)        a step in the proceeding be taken within a specified time; or

(b)        the proceeding be stayed or dismissed for the whole or any part of the relief claimed by the applicant:

(i)    immediately; or

(ii)    on conditions specified in the order.

…

Note 1    The Court may make any order that the Court considers appropriate in the interests of justice — see rule 1.32.

Note 2    An order or judgment under this Division may be set aside or varied.

129    Section 37P(5) and (6) of the Federal Court of Australia Act provide:

(5)     If a party fails to comply with a direction given by the Court or a Judge under subsection (2), the Court or Judge may make such order or direction as the Court or Judge thinks appropriate.

(6)     In particular, the Court or Judge may do any of the following:

(a)     dismiss the proceeding in whole or in part;

(b)     strike out, amend or limit any part of a party’s claim or defence;

(c)     disallow or reject any evidence;

(d)    award costs against a party;

(e)     order that costs awarded against a party are to be assessed on an indemnity basis or otherwise.

130    Apart from the direction to the parties to attend the case management conference, with which both parties complied, until 6 March 2015 no directions had been made in this proceeding. Accordingly, s 37P(5) and (6) did not provide a source of power for the dismissal of the proceeding at the time of the respondent’s oral application for dismissal on 2 March 2015.

131    Since that time, the applicant has not complied with the 6 March 2015 orders. Some of them (such as the opportunity to make submissions in response to this oral application by the respondent) were for the election and potential benefit of the applicant. Others were not so one-sided. Critically, the applicant was ordered to file and serve an amended application under the AD(JR) Act which set out full particulars of the decision or decisions sought to be reviewed, the grounds of review and the relief sought. This document was necessary for the Court to understand what it was being asked to do and why, and for the respondent to understand the case to be made in the proceeding. The applicant was also directed to file and serve an affidavit which provided evidence of the decision or decisions he sought to be reviewed.

132    With some prompting from the Court, the applicant has sought to rely on Ms Peric’s affidavit, which was filed on 2 April 2015 in compliance with the extension of time granted. However, no amended application has been filed and there is still no basis articulated in the applicant’s material which would engage this Court’s supervisory jurisdiction under the AD(JR) Act, aside from the invocation of “breach of natural justice” in Mr Dauguet’s original application. Having now seen the decisions made by Centrelink as revealed in the correspondence from Centrelink which is appended to Mr Peric’s affidavit, no denial of natural justice is apparent. The applicant has not explained what he means by the use of this term in the context of the decision about his Newstart allowance, nor sought to address any of the other grounds in s 5 of the AD(JR) Act. He was directed to do so, and it appears several different lawyers have been involved in this application since the case management conference in December. Despite this, no articulation of his claim has been forthcoming.

133    It is apparent from the chronology of events which I have set out that the lawyers were each retained by Ms Peric, aside from the first solicitor from Social Security Rights Victoria Inc who as I understand could only have attended the case management conference if he was representing Mr Dauguet. Nevertheless, at all times the asserted reason for Ms Peric’s attempted involvement (and, one assumes, the reason for legal advice and assistance to have been sought) has been to challenge the cancellation of Mr Dauguet’s Newstart allowance: that being the case, it is not unreasonable in my opinion to have expected some articulation of the legal errors which are said to infect Centrelink’s decision.

134    Therefore I consider there is a basis for dismissal of the proceeding pursuant to s 37P(5), in relation to the applicant’s failure to comply with the direction that he file and serve an amended application which set out full particulars of the decision or decisions sought to be reviewed, the grounds of review and the relief sought. If this were the only matter, it may not in and of itself warrant dismissal of the proceeding. Together with the matters I set out below, I consider it adds to the sufficiency of the basis for dismissal.

135    Rule 5.23 is applicable. The power to dismiss a proceeding for want of prosecution, or non-compliance is, as a power summarily to dismiss a proceeding without determination of the merits of the claim, one which should be exercised cautiously: see Lawson v NSW Minister for Land & Water Conservation [2007] FCA 8 at [22] per Stone J, referring to McKenzie v South Australia (2005) 214 ALR 214; [2005] FCA 22 at [25]-[26] per Finn J. There may be circumstances in which the power should not be exercised if it is obvious to the Court that an applicant does wish to prosecute her or his claim: see for example Jarrett v Secretary, Department of Families, Community Services and Indigenous Affairs [2008] FCA 1043. In that case, an applicant failed to appear at the first directions hearing and the Court stood the matter over. The applicant then sought leave to appear on the next occasion by telephone, which leave was refused. The applicant did not appear in person and at that stage the respondent applied for orders under the then equivalent to r 5.23 of the Federal Court Rules. Flick J declined to make the order and instead stood the matter over for final hearing, at which the applicant appeared.

136    I consider the circumstances in the present proceeding to have travelled well beyond the circumstances with which Flick J dealt in Jarrett.

137    The applicant has failed to prosecute his claim with any diligence, let alone due diligence. It must be remembered the context of his claim is that he was suffering severe financial hardship and needed urgent orders that his Centrelink payments be recommenced. Despite this, he took over a month to serve the application and supporting material, such as it was, on the respondent, despite advice and assistance from officers in the Victorian Registry. He came to court in December 2014 without having provided any documentary material to support his claims.

138    If Ms Peric was, as she claimed, the person who did everything for him, she too failed to ensure the applicant served his application in a timely fashion and failed to ensure he came prepared to the directions hearing with appropriate evidence to clarify and support his claims. The primary responsibility however falls on the applicant and it is his default the Court considers.

139    No proposed steps to progress the applicant’s claim towards a hearing came out of the case management conference in December 2014, despite the applicant having a solicitor attend that conference with him.

140    No further communications were received from the applicant by the Court. When the Court wrote to the applicant at the end of January 2015, there was no response for almost two weeks. When a response was forthcoming, through a telephone call from Ms Peric, it was only to foreshadow further delay while she searched for a legal representative. As it turned out, despite the Court allowing time for this to occur, the search was not for a solicitor for the applicant, but rather a solicitor only for Ms Peric.

141    If the need for a legal representative was the most pressing issue for Mr Dauguet, or even for Ms Peric purporting to act for Mr Dauguet, it is inexplicable that they have not taken steps to facilitate the Court’s offer to refer them for free legal assistance pursuant to r 4.12 of the Federal Court Rules, by completing and filing the required statement of financial position.

142    The lack of substantive response to the Court’s correspondence in late January 2015 is remarkable given the main point of the correspondence was to offer the applicant two alternative final hearing dates on an expedited basis, in early March 2015, and to propose minimal and achievable steps to prepare for that hearing.

143    Aside from two brief telephone calls, each of which dealt only with assertions by Ms Peric that she and the applicant were trying to find a lawyer, until after the hearing on 2 March 2015, Ms Peric – as the person who claims to do everything for the applicant – was unresponsive to the many attempts, through her mobile telephone, to communicate with the applicant and to progress the matter towards hearing. The applicant has, personally, been entirely unresponsive.

144    The non-appearance of the applicant, without any communication or explanation, at the directions hearing on 2 March 2015 continues a pattern of non-responsiveness. Despite a clear message, through Ms Peric’s mobile phone, that the applicant should contact the Court, neither he nor Ms Peric did so until Ms Peric called chambers on 6 March 2015.

145    Accepting that the power in r 5.23 of the Federal Court Rules should be exercised with caution, in my opinion the defaults by the applicant have been persistent, and without explanation. Especially given he was offered two alternative trial dates by way of expedited hearing, his failure to appear, or to communicate with the Court, whether himself or through Ms Peric, satisfies me he has no real intention to prosecute his claim. It would not be consistent with the overarching obligation in s 37M of the Federal Court of Australia Act for the respondent’s and the Court’s resources to continue to be expended in such circumstances.

146    The events which have occurred since the 2 March directions hearing have confirmed my view. The applicant does not wish to prosecute his claim. The most that can be said is that he wants Ms Peric to prosecute it for him. That cannot occur. If the applicant does not wish to prosecute his own claim he has three choices. He can withdraw the claim. He can establish that he is under a legal incapacity for the purpose of r 9.63 and seek to have Ms Peric appointed as his litigation representative. Or he can retain a lawyer, including through the Court’s pro bono referral powers.

147    The applicant has had the last two options explained to him. He should be taken to know of the first option. He has not pursued any of those options himself. Where Ms Peric has pursued legal assistance, she has done so on her own behalf but even then has not followed through with the assistance she has been given. The law requires that the applicant prosecute his claim, and he has not done so. More particularly, he has failed to comply with the Court’s direction to file an amended application setting out full particulars of his claim under the AD(JR) Act. There is no basis to suppose his compliance is likely to improve in the future.

148    The failure to prosecute the claim is compounded by the difficulties in contacting the applicant. He provides no telephone number for himself. Nor did he provide an email address. Nor a facsimile number. He provided only a postal address, and then did not respond to correspondence sent to him in that way. Of the two mobile phone numbers provided at various stages, both were said by Ms Peric to belong to her. At the hearing on 8 April it became apparent the applicant had changed his place of residence. He had not filed a new notice of address for service. I directed him to go and fill out the appropriate form over the lunchtime adjournment on 8 April 2015, which he did. A proceeding cannot be conducted by the Court on behalf of the applicant by the Court prompting the applicant at each step, and that is the point which this proceeding has reached.

149    Section 37M of the Federal Court of Australia Act speaks of the “just” resolution of disputes. In some circumstances, dismissal pursuant to r 5.23 would be inconsistent with this obligation. However, in the present circumstances, I am satisfied that the applicant has had available to him two tiers of external merits review of the respondent’s decision to suspend and then to cancel his Newstart allowance. I am also satisfied, if it be relevant (which I do not consider it is) that Ms Peric has the same access in relation to the cancellation of a carer’s allowance payable in respect of their son.

150    The dispute which the applicant has with the respondent concerns the payments of benefits under s 593 of the Social Security Act. The Social Security (Administration) Act 1999 (Cth) establishes a comprehensive process of merits review for decisions made under either the Social Security Act or the Social Security (Administration) Act: see Divs 2 (internal review), 3 and 4 (SSAT review) and 5 (AAT review) of Pt 4 of the Social Security (Administration) Act.

151    Section 129(1) of the Social Security (Administration) Act provides that “a person affected by a decision of an officer under the social security law may apply to the Secretary for review of the decision.” None of the exclusions set out in that section is relevant in the present proceeding.

152    Following an application for review under s 129, the Secretary, the Chief Executive Officer of Centrelink or an authorised review officer must review the decision and either affirm, vary or set aside the decision being reviewed. Section 135 relevantly provides:

135    Review of decisions following application under section 129

(1)     Subject to subsection (3) and subsection 127(1), if a person applies under section 129 for review of a decision, the Secretary, the Chief Executive Centrelink or an authorised review officer must:

(a)     review the decision; and

(b)     do one of the following:

(i)     affirm the decision;

(ii)     vary the decision;

(iii)     set the decision aside and substitute a new decision.

(2)     In the case of an application for review of a decision made by an officer of the Employment Department as a delegate of the Secretary, the reference in subsection (1) to an authorised review officer is to be read as a reference to an authorised review officer who is an officer of that Department.

(3)     An authorised review officer may not review a decision relating to the exercise of the Secretary’s power under section 182 of this Act.

(5)     If:

(a)     a person sets aside a decision under subsection (1); and

(b)     the Secretary is satisfied that an event that did not occur would have occurred if the decision had not been made;

the Secretary may, if satisfied that it is reasonable to do so, determine that the event is taken to have occurred for the purposes of the social security law.

153    In the 3 November 2014 letter from Ian Anderson, authorised review officer to the applicant, the decision of the Department of Human Services to cancel Mr Dauguet’s Newstart allowance was affirmed. The relevant extracts of the 3 November letter are set out at [86] to [91] above.

154    The Social Security (Administration) Act provides for a review from a decision of an authorised review officer to the SSAT. Section 142(1) relevantly provides:

142    Application for review by SSAT

(1)    Subject to section 144, if:

(a)     a decision has been reviewed by the Secretary, the Chief Executive Centrelink or an authorised review officer under section 126 or 135; and

(b)     the decision has been affirmed, varied or set aside;

a person whose interests are affected by the decision of the Secretary, the Chief Executive Centrelink or the authorised review officer may apply to the SSAT for review of that decision.

155    The review powers of the SSAT are set out in s 149 of the Social Security (Administration) Act. Section 149(1) provides:

149    SSAT review powers

(1)     If a person applies to the SSAT for review of a decision (other than a decision referred to in subsection (5)), the SSAT must:

(a)     affirm the decision; or

(b)     vary the decision; or

(c)     set the decision aside and:

(i)     substitute a new decision; or

(ii)     send the matter back to the Secretary or the Chief Executive Centrelink, as the case requires, for reconsideration in accordance with any directions or recommendations of the SSAT.

156    Following a decision by the SSAT to affirm, set aside or vary the decision of the authorised review officer, an application may be made to the AAT for a review of the decision of the SSAT. Section 179(1) of the Social Security (Administration) Act provides:

179    Review of decisions by AAT

(1)     If:

(a)     a decision has been reviewed by the SSAT; and

(b)     the decision has been affirmed, varied or set aside by the SSAT;

application may be made to the AAT for review of the decision of the SSAT.

157    Reviews to the AAT are limited to decisions that have been made by the SSAT. Section 181 of the Social Security (Administration) Act provides:

181    Review by AAT limited to decisions reviewed by SSAT

The AAT may only review a decision that has been reviewed by the SSAT.

158    The applicant has been told on several occasions about his right to access merits review, but appears to have chosen not to take up that option. The allegations he makes in his original application about the state of his records with Centrelink are matters he would also be able to raise on any merits review, especially if he said those records were relevant to his eligibility for the payments to which he claims to be entitled. Further, if the conduct of any Centrelink officers had interfered in any way with him receiving payments under the Social Security Act to which he was entitled, that is also the kind of evidence which could be relevant on merits review.

159    Most importantly, it is the SSAT and the AAT which are empowered to set aside the decision of the respondent and substitute a decision more favourable to the applicant. This Court is not empowered to grant that kind of relief. The resolution of the applicant’s dispute can not only be achieved more effectively by him utilising his merits review rights, it is those merits review rights which are most capable of delivering the outcome he expressly seeks in his originating application.

160    Those considerations persuade me it is also appropriate to exercise the discretion conferred by s 10(2)(b)(ii) of the AD(JR) Act, on the basis that the applicant’s access to two tiers of merits review is an adequate alternative remedy: see McGowan v Migration Agents Registration Authority (2003) 129 FCR 118; [2003] FCA 482 at [49] ff per Branson J. If the applicant is out of time to ensure any favourable decision by the SSAT or the AAT secures him payments in arrears, that is only because he has consistently refused to take the advice proffered to him to lodge applications for merits review in a timely fashion.

161    There are thus two bases which I rely upon to make the orders I propose to make in this proceeding: r 5.23 of the Rules and s 10(2)(b)(ii) of the AD(JR) Act. I consider the availability of two tiers of merits review, and the applicant’s failure to take any steps to access that review, are also relevant factors to the exercise of the discretionary power under r 5.23, but even if r 5.23 were not available I would have made the same orders under s 10(2)(b)(ii) of the AD(JR) Act. I also rely on s 37P(5) of the Federal Court of Australia Act, in the way I have set out above.

162    Accordingly, there will be orders dismissing the proceeding.

163    Some time after the Court reserved its decision on the two applications, an affidavit was filed in the Registry. It purports to be an affidavit of Mr Dauguet, and was sworn on 22 April 2015. It was filed on 22 April 2015. It was not served on the respondent. The respondent became aware of the affidavit only through a communication from the Court.

164    The affidavit covers a number of issues which have arisen in the progress of the proceeding. It states that Mr Dauguet was unaware there was a hearing on 2 March 2015 “to dismiss my application”. As I have recounted, the hearing on 2 March 2015 was in fact a directions hearing, and the dismissal application by the respondent was only made after the applicant did not appear.

165    The affidavit makes repeated allegations against a number of people, in strong terms. It alleges fraud, cover ups, conspiracies between solicitors retained by Ms Peric and the Australian Government Solicitor, and breach of professional obligations by solicitors retained by Ms Peric. At several points the affidavit asserts solicitors were retained by Mr Dauguet, although it is clear, as I have found elsewhere in these reasons, that on each occasion the solicitors informed the Court they had instructions only from Ms Peric. The affidavit accuses Centrelink and its officers of fraud, of falsifying and destroying records, of manufacturing medical certificates, making “illegal” appointments for Mr Dauguet to attend Employment Services Assessments and “falsely” removing appeal records.

166    The affidavit asserts (with exhibits which appear to substantiate at least this fact) that Ms Peric paid $1,000 to Pasha Legal and $300 to Mr Davison. The affidavit then accuses each of those solicitors of lying, working in Centrelink’s interests rather than those of Mr Dauguet and Ms Peric, and (in relation to Mr Davison) as “working as a messenger” for the Australian Government Solicitor.

167    I should say at once that there is no basis for those allegations in any of the material, or in the way either of those solicitors has conducted themselves with the Court: the allegations are intemperate and misplaced. Mr Davison in particular behaved professionally and in a measured way when he appeared on behalf of Ms Peric, and sought conscientiously to advance her joinder application.

168    This affidavit was filed without leave, and after I had reserved my decision on the two applications. That in itself would be sufficient to decline to consider it. However, if I were persuaded that it was in fact an affidavit by Mr Dauguet himself, given my other findings about his lack of participation in this proceeding, I may have been inclined to take it into account, subject to giving the respondent an opportunity to deal with its contents.

169    I am not however persuaded that Mr Dauguet has done any more than, possibly, sign his name on the affidavit. Its content and tone are strikingly similar to communications from Ms Peric which are in evidence, including those she has purported to write before on behalf of Mr Dauguet. It contains a level of detail about dates and sequences of events which Mr Dauguet has in submissions before me disclaimed any capacity for. It contains allegations about communications to and from Pasha Legal and Mr Davison in circumstances where both those practitioners have informed the Court they only ever had instructions to act for Ms Peric. Revealingly, although purporting to be statements from Mr Dauguet, it refers in at least three places to Ms Peric’s affidavit on the joinder application as “my” affidavit. There can be little doubt in my opinion that Mr Dauguet was not responsible for the contents of this affidavit.

170    She and Mr Dauguet are open about the fact that it is Ms Peric who conducts any dealings with Centrelink. Perhaps, giving them both the benefit of the doubt, they do not understand it is a serious matter, to say the least, to pretend that an affidavit contains the statements of one person, when in fact they are the statements of another person. The finding I make is that this affidavit is not, on the evidence before me, an affidavit which contains statements made and composed by Mr Dauguet. It is not his evidence. In those circumstances it is insufficiently probative to be taken into account even if it were possible to overlook all the evidentiary and procedural irregularities in the way it has been put before the Court. Further, its overwhelmingly accusatory and vitriolic content also deprives it of any probative value. I have not relied on its contents in reaching my conclusions.

171    I should add that I have at several stages throughout this proceeding carefully considered whether the Court should take a more proactive role in making a referral under r 4.12 of the Rules for pro bono solicitors and counsel to be appointed to act for the applicant. The applicant failed, as I have noted above, to provide the necessary information setting out his financial circumstances which the Court may consider before a referral can be made: see r 4.12(2)(a). Whether this information has not been provided because Ms Peric has discouraged the applicant from providing it so that she can retain control over the proceeding is unclear. The fact is that the applicant has not provided the information.

172    Despite this failure, there may have been circumstances where it would be appropriate for the Court to press the applicant to provide the information in order to progress the pro bono referral. This is not one of them. First, having now examined the letters from Centrelink about the refusal of the Newstart allowance, there is still no apparent basis in the material for possible legal error. Secondly, given the sequence of events I have recounted in these reasons, I have no confidence that if solicitors and counsel were appointed, they would be able to interact with Mr Dauguet as their client in a way their professional obligations require. The inference I draw from the evidence before me is that Ms Peric would interfere and intervene so as to try and control the course of the proceeding in a way which would place any solicitor and counsel in an untenable position.

173    The applicant has been told on countless occasions that it is for him to conduct this proceeding. He has failed to do so. What dynamics within his relationship with Ms Peric (or any other circumstances) may have caused this, or precluded an application under r 9.63, or precluded the applicant following through on the Court’s offer of pro bono lawyers, are matters on which the Court should not speculate.

174    Given the applicant’s circumstances, and the relatively small number of procedural steps and appearances which have occurred in this proceeding, I do not consider it is appropriate to make an order for costs against Mr Dauguet in the proceeding. I am reinforced in that opinion by my impression that it is Ms Peric, rather than Mr Dauguet, who has pressed the continuation of this proceeding, and driven the course it has taken. Whether it is appropriate for a costs order to be made against Ms Peric may be a different matter. I will give the respondent an opportunity to consider whether to make such an application and provide submissions in support of such an application if the respondent elects to make one. The applicant and Ms Peric will both be given an opportunity to reply if such an application is made.

Associate:

Dated:    28 April 2015