FEDERAL COURT OF AUSTRALIA

Mladenov v Secretary, Department of Social Services [2016] FCA 274

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for leave to appeal from the judgment of North J in Mladenov v Secretary, Department of Social Services [2015] FCA 1472 be refused.

2.    The applicant pay the respondents’ costs of the application.

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

REASONS FOR JUDGMENT

TRACEY J:

1    This is an application for leave to appeal from a decision of North J: see Mladenov v Secretary, Department of Social Services [2015] FCA 1472. His Honour had upheld the respondents’ objection to the competency of a purported appeal by Mr Mladenov from a decision of the Administrative Appeals Tribunal (“the Tribunal”).

2    The proceeding arises from attempts, made by the respondents, to recover disability support pension and Newstart allowance payments from Mr Mladenov. The respondents asserted that Mr Mladenov was not entitled to the payments because he was employed and receiving wages at relevant times.

3    The proceeding has a long and involved history which commenced when the Social Security Appeals Tribunal (“the SSAT”) found, in September 2012, that Mr Mladenov had a debt to the Commonwealth of some $30,000. That procedural history is recounted in the primary judge’s reasons (at [3]-[26]) and need not be repeated here.

4    It is sufficient, for present purposes, to record that Mr Mladenov had sought orders by the Tribunal that the respondents produce documents falling into a number of categories. The Tribunal conducted a preliminary hearing to deal with the application for documents. The respondents explained their positions in relation to each category. In one case, the Tribunal found that documents falling within the category would not be relevant to its deliberations. In other instances it accepted the respondents’ advice that all of the relevant documents had already been disclosed to Mr Mladenov and were to be found in the bundle of T documents. Mr Mladenov did not press for orders in relation to two of the categories.

5    The Tribunal then heard Mr Mladenov’s appeal. It affirmed the decision of the SSAT, subject to a variation to the amount of the Newstart debt.

6    The respondents asserted that Mr Mladenov had received Newstart payments to which he was not entitled between 7 September 1995 and 25 June 1996. The overpayment was said to have been made because Mr Mladenov had failed to disclose that he had been employed by Port Link Pty Ltd (“Port Link”) during the 1995/96 financial year and had been paid $26,065 during this period. Mr Mladenov gave evidence that he had not worked at all during the 1995/96 financial year. The Tribunal rejected this evidence, relying on an Australian Taxation Office return which disclosed the income and a written statement by Mr Mladenov to a superannuation fund which confirmed this employment.

7    The respondents claimed that the overpayment of the disability support pension arose between 17 November 2001 and 9 January 2004. During this period Mr Mladenov had been working for KNM Transport Pty Ltd (“KNM Transport”). He said that he had advised the Department about this employment in January 2004. Having examined contemporaneous documents on departmental files, the Tribunal concluded that Mr Mladenov had not notified the authorities of his employment with the company.

8    Mr Mladenov filed a notice of appeal in this Court against the Tribunal’s decision. The notice was supported by an affidavit. Neither document was clearly expressed. Having examined them, the primary judge identified two complaints which emerged from the documents. They were expressed as follows:

    “Still I waiting for numbers of documents from respondent to be produced”; and

    “AAT not accept my relevant evidence, but AAT acceping [sic] the same evidence from respondent.”

9    The respondents filed a notice of objection to competency. They asserted that Mr Mladenov’s notice of appeal did not identify any relevant question of law as required by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the Act”).

10    Section 44(1) of the Act provides:

A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

11    The primary judge found that Mr Mladenov had failed, either in substance or in form, to identify any relevant question of law.

12    His Honour was prepared to assume, in Mr Mladenov’s favour, that the Tribunal’s preliminary decision relating to access to documents might be susceptible to review under s 44 of the Act.

13    His Honour found that the Tribunal had given Mr Mladenov a fair hearing in respect to his application for access to documents. Any decisions which it had made in that regard were discretionary in nature. Mr Mladenov had not identified any error which would warrant the Court’s intervention: cf House v The King (1936) 55 CLR 499 at 504. Nor was his Honour able to discern any such error upon a reading of the transcript and the rulings made in respect of each category.

14    The evidence which Mr Mladenov said should have been, but was not, accepted by the Tribunal, was, for the most part, evidence given by him. It related to his denial that he had been employed by Port Link during the 1995/96 financial year and his claim to have notified Centrelink of his employment by KNM Transport in 2004. The Tribunal had rejected this evidence.

15    The primary judge held, consistently with the observations of Brennan J in Waterford v The Commonwealth (1987) 163 CLR 54 at 77, that a finding by the Tribunal on a matter of fact may not be reviewed on appeal under s 44 of the Act unless the finding is vitiated by an error of law. No such error of law was apparent from an examination of the transcript of the Tribunal’s hearing. The Tribunal had given Mr Mladenov a fair hearing and was not required to accept his evidence in preference to that advanced by the respondents. Furthermore, it would not have erred in law simply by making a wrong finding of fact.

16    His Honour upheld the objection to competency because the purported appeal was not on a question of law.

17    A decision of this character is interlocutory in nature and, as a result, Mr Mladenov requires leave to appeal to a Full Court: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth); SZAJB v Minister for Immigration and Citizenship & Anor (2008) 247 ALR 510 at 517-8; 527-8; 536; Croker v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1587 at [5].

18    In order to obtain such leave it is necessary for Mr Mladenov to satisfy the Court that the primary judge’s decision is attended with sufficient doubt to warrant it being reconsidered by the Full Court and that substantial injustice would result if leave were refused, supposing the decision to be wrong: see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9.

19     Mr Mladenov’s draft notice of appeal filed with this application was an annotated copy of the same notice which was before the primary judge. The grounds of appeal remained unchanged.

20    Mr Mladenov spent most of his oral argument in support of his application effectively rearguing his case before the Tribunal. He insisted that there had to be in existence relevant documents which had not been provided to him by the respondents and he said that he did not understand why such documents had not been provided to him. The Court, he said, should require the respondents to provide him with all of the documents which he had requested. He said that, because he did not have access to the documents, he was unable to “defend” himself against the respondents’ claim that he had been overpaid benefits.

21    When, towards the end of his submissions, he came to the primary judge’s decision, Mr Mladenov said no more than that he did not consider it to be “fair”.

22    Full Courts of this Court have recently undertaken a comprehensive analysis of the authorities dealing with s 44 of the Act: see Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315 and May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397. The Court’s conclusions were summarised in a series of propositions. Relevantly, they were stated in Haritos (at 341-2) as follows:

(1)    The subject-matter of the Court’s jurisdiction under s 44 of the AAT Act is     confined to a question or questions of law. The ambit of the appeal is     confined to a question or questions of law.

(2)    The statement of the question of law with sufficient precision is a matter of     great importance to the efficient and effective hearing and determination of     appeals from the Tribunal.

(3)    The Court has jurisdiction to decide whether or not an appeal from the     Tribunal is on a question of law. It also has power to grant a party leave to     amend a notice of appeal from the Tribunal under s 44.

(4)    Any requirements of drafting precision concerning the form of the question     of law do not go to the existence of the jurisdiction conferred on the Court by     s 44(3) to hear and determine appeals instituted in the Court in accordance     with s 44(1), but to the exercise of that jurisdiction.

…

(6)    Whether or not the appeal is on a question of law is to be approached as a     matter of substance rather than form.

(7)    A question of law within s 44 is not confined to jurisdictional error but     extends to a non-jurisdictional question of law.

(8)    The expression “may appeal to the Federal Court of Australia, on a question     of law, from any decision of the Tribunal” in s 44 should not be read as if the     words “pure” or “only” qualified “question of law”. Not all so-called “mixed     questions of fact and law” stand outside an appeal on a question of law.

…

23    Mr Mladenov plainly harbours a very strong belief that he has been dealt with unjustly by the Tribunal. He is evidently frustrated by the failure of the respondents to provide him with documents which, he believes, to exist and which, he considers, would assist him in resisting their demands for repayment of benefits to which, they claim, he is not entitled. He has represented himself in the Tribunal and in this Court. He has no legal training and I formed the distinct impression that he lacked a clear understanding of the legal issues raised by his application.

24    In such circumstances it is important for the Court to bear in mind that drafting imprecision is not necessarily fatal to an application made under s 44 of the Act. The form of a notice is not to prevail over its substance.

25    Mr Mladenov’s notice of appeal before the primary judge did not, on any view, identify any relevant question of law for the purposes of s 44. The primary judge did not, however, confine his attention to the terms in which Mr Mladenov sought to explain his objections to the Tribunal’s decisions. His Honour carefully examined the transcripts of the Tribunal’s hearings and its reasons for decision. It is clear from his Honour’s reasons that, had he detected any procedural unfairness at any stage of the Tribunal processes or any other legal error, he would not have upheld the objection to competency notwithstanding Mr Mladenov’s failure to articulate a question of law.

26    In dealing with the present application I have been conscious of the disabilities under which Mr Mladenov has laboured and have endeavoured to ascertain whether some basis may exist for concluding that the legal requirements for a grant of leave might have been satisfied. I have been unable to identify any such error.

27    Accordingly, Mr Mladenov’s application for leave to appeal must be refused.

Associate:

Dated:    21 March 2016