Federal Court of Australia

Piotto v Chief Executive Officer, Services Australia [2023] FCA 1549

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s claim for relief in his originating application dated 18 August 2021 be dismissed.

2.    The Applicant pay the Respondent’s costs of, and incidental to, the application, to be fixed by way of an agreed lump sum or, in default of agreement, by way of a lump sum fixed by a Registrar.

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

REASONS FOR JUDGMENT

ANDERSON J

introduction

1    On 18 August 2021, the Applicant filed an originating application (application) for relief under s 39B of the Judiciary Act 1903 (Judiciary Act). On the same date, the Applicant also filed an unsworn affidavit made by the Applicant and dated 12 August 2021.

2    In the application, at paragraph 1, the Applicant stated that he sought “declarations” only and not “orders or writs”. Starting at paragraph 2 of the application, the Applicant set out 20 declarations sought as follows (as it appears in the application) (Proposed Declarations):

2.     Tape-recording of interviews is permissible

3.     Illegal to implement Tape-recording as misconduct.

4.     Illegal to implement Tape-recording as a failure by the applicant and thereby subject the applicant to punitive measures.

5.     Tape-recording does not constitute a reason to stop necessary work and functions which the interview is for. Such action is illegal

6.     Illegal to ban Tape-recording at Centrelink Offices

7.     Illegal to ban Tape-recording at Work for the Dole locations.

8.     Illegal to ban Tape-recording at Job interviews. Although the Employer may terminate such interviews - this is not misconduct or a failure by the applicant.

9.     Illegal not to produce Delegation of Authority. It must be produced by Job Service providers, when they required the attendance of Job Seekers - and the Job Seekers requests to see such delegation. The documents must include some document which links, the person making the demand to the general delegation provided. Such as an employment contract or other document demonstrating that they are employed in the position required by the document of delegation.

10.     Illegal for Services Australia to not should provide an authorized transcript of phone conversations - when copies of phone conversations are requested from the department.

11.     Illegal for Services Australia to do any procedures or business over the telephone. Although they tape record and provide receipt numbers - they refuse to acknowledge what happens on the telephone and say the opposite of what was recorded by them in court. And have gotten away with misleading the court. The applicant and other clients are not permitted to taperecord conversations - to illustrate their illegal behavior.

12.     Illegal for the basics card to not provide cash for rent - should the landlord require it.

13.     Illegal to charge Additional fees due to the tardiness or incompetence of the basics card administration, in paying bills late and incurring late fees. Late fees are the responsibility of the that administration to pay and not the holder of the basics card.

14.     Illegal to withhold refunds of any such incurred late fees. These must be refunded.

15.     The basics card administration ought to up on criminal charges for making such unauthorized withdrawals.

16.     Illegal to charge basics card holder when paying rent and the real estate agent charges 2%, that is the basics card administration fee to pay.

17.     Illegal for the basics card not to work on all eftpos locations in all of Australia. Notwithstanding it is designed to limit alcohol and gambling purchases.

18.     Illegal if due to the tardiness or incompetence of the basics card administration, in payment of rent the basics card hold is evicted due to non payment of rent. The basics card administration is responsible for any expenses incurred such as emergency accommodation and moving costs.

19.     The basics card administration caused eviction of basics card holder due to their tardiness or incompetence paying of rent they ought to be up on criminal charges.

20.     The correct amount of time for processing a bill, by the basics card administration is two minutes.

21.     Those who issued robodebt notices - the Minister, the CEO Services Australia and the staff involved should be up on criminal charges.

3    On 13 September 2021, the Court made procedural orders by consent, which provided for the Applicant to file his submissions and any other material or evidence on which he proposed to rely by 25 October 2021, and any reply submissions by 24 January 2022 (that date being subsequently extended to 7 February 2022).

4    The only written submissions filed by the Applicant are submissions dated 3 February 2022, entitled “Applicant’s final submission”. Those submissions were brief and purported to set out the basis upon which the Applicant sought the Proposed Declarations. The submissions are set out in full below:

The respondents have argued that the action which instigated the breach happened while not being tape recorded. While simultaneously being unable to give any details of what that breachable action was. The applicant argues that, recording is to enable an accurate record of what transpired. So apparently to get that accurate record - the applicant must film from the moment he enters the building to the moment he leaves. What happens and what is said at a meeting - is not sufficient.

This has many issues - as it necessarily involves recording people not directly involved [in] the meeting. This necessity is outrageous. If there was an issue it should [have] been raised at the meeting so a record of it could be made.

5    The Applicant did not file any admissible evidence in support of his application. On 18 August 2021, the Applicant filed an unsworn affidavit which purported to set out the basis for the Proposed Declarations. Relevant parts of the applicant’s affidavit are set out below:

4.     On the 1/4/2014: The Applicant Breached by Job Service Provider Campbell Page. The applicant had answered the questions of a fellow unemployed client in the waiting area. And the discussion moved onto the subject of tape-recording. The breach was not upheld by the authorized review officer.

5.     I was required to attend Sarina Russo 15 April ‘19 at 2.30pm. The tape recording of that interview is exhibit A. It is very short.

6.     On 16 April ‘19 I received an email that my payments have been suspended. I telephone Cenrelink. Receipt No. 061 847. They stated there was no way to overturn the suspension. And I was cited for conduct making an interview impossible. …Centrelink refused to refer the matter to an authorized review officer.

7.     I commenced legal action in the Federal Court, Case No. VID 415/2019 and VID 763/2019. Date of judgement 3 july 2020. In these cases the defense maintained that I could have appealed to the AAT - despite the AAT being very clear they could only hear matters which have been referred to an authorized review officer. And that I had failed to refer the matter to an authorized review officer - despite there being a recording of me trying to refer it to an authorized review officer. The defense argued that the transcript of that telephone recording should be ignored. The applicant is of the opinion that respondent had deliberately mislead the Court.

8.     I attempted record my interaction with centrelink staff on 19 June 2019. The staff ran away from the counter.

9.     Job Service providers have said you did not perform well enough at the Job Interview. The applicant has no desire to have measures implemented based on Job Service providers opinion on job interviews and so finds it necessary to tape-record job interviews. … [T]he Job Service Providers DO make judgements and implement regimes, based on what allegedly happens at Job Interviews. So a clear record of what happens there is important.

10.     It is important to have an accurate record of what transpired as it is necessary to challenge the actions of the department and sometimes to take those matters to the Courts.

6    The Respondent did not file any affidavit evidence.

7    The hearing of the Applicant’s claim was held on 2 November 2023. At that time, as the Applicant had not filed any sworn evidence, I invited the Applicant to give evidence in the witness box. Under oath, the Applicant adopted his affidavit of 18 August 2021. He further gave evidence that, on the previous day, 1 November 2023, he was asked to attend an interview with a Job Service provider. His evidence was that he asked if he could record the interview, and his request was refused. The Applicant described this interaction as follows:

I did not push the matter because, as far as I understand it, this whole matter is unresolved. And it was explained to me that I have a target of things to do. The target number was not specified. They were unable to provide it. The weight of – you know, I had to do so many job searches, but the weight of the job searches versus the target number was not explained. It’s as clear as mud, and I would love to have a tape recording of these sorts of interactions because, if I get in trouble further down the line, the fact that nothing was actually explained and no specific numbers were mentioned is important. And I can’t do that because I’m not allowed to take tape recordings, so I did – the lady was unwilling to be tape recorded.

8    The Applicant also made oral submissions which may be summarised as follows:

(1)    The Applicant stated that the BasicsCard had been abolished and therefore certain of the declarations sought were now “irrelevant”.

(2)    The Applicant submitted that, as Centrelink staff would “run away” when he requested to tape-record them, he was not able to progress with the matters that he had brought to Centrelink.

(3)    The Applicant submitted that Centrelink should not have terminated an interview with him and suspended payments to him by reason of his attempt to tape-record an interview with them. The Applicant stated: “And I don’t know how to rule or think about this, how to go forward, which is why I asked for someone to make a decision about what is and what is not acceptable”.

9    I understood the effect of the Applicant’s oral submissions to be that he did not press the Proposed Declarations at paragraphs 12 to 20 of his application, which concern the BasicsCard. The Applicant also has not provided any relevant evidence in support of the Proposed Declarations at paragraphs 9 to 11 and 21. Nor did the Applicant’s oral or written submissions articulate a basis for the relief sought by these Proposed Declarations. In the circumstances, I refuse to make any of these Proposed Declarations.

10    This leaves the Proposed Declarations sought at paragraphs 2 to 8 of the Applicant’s originating application, which broadly concerns the permissibility of tape-recording in different contexts. The Applicant’s application in this respect faces two difficulties.

11    Firstly, neither in his written nor oral submissions did the Applicant identify the legislative instruments pursuant to which his claim is made. The only reference to legislation in any of the Applicant’s materials filed with the Court was the Applicant’s application, which stated:

Acts to consider Telecommunications At 1997, Social Security Act 1991 and the Social Security (Administration) Act 1999, Crimes Act 1914 (Cth). Declarations are available in a variety of areas of Australian law.[226] Section 21 of the Federal Court Act 1976 (Cth) provides that the court may make a declaration on the legality of another party’s conduct

12    A global assertion of this nature, which fails to identify the specific provisions on which the Applicant relies, cannot supply a legal foundation for the Applicant’s claim.

13    Secondly, it is well-established that the Court will not grant declaratory relief to answer a hypothetical question divorced from a real controversy, or which will produce no foreseeable consequences for the parties: see, eg, Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at [45]-[47] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 at [52] (Gaudron J)); Kuczborski v Queensland (2014) 254 CLR 51 at [6] (French CJ). Equally, although the Court may make a declaration of right based on facts found in a particular case, the Court is not permitted to make a declaration of right which amounts to a conclusion of fact from a hypothetical or assumed state of facts and thereby to enunciate or declare a rule of apparently general application as though it were a declaration of applicable law: University of New South Wales v Moorhouse (1975) 133 CLR 1 at 24 (Jacobs J, McTiernan ACJ agreeing ).

14    It is evident on the face of the Applicant’s application that the Proposed Declarations at paragraphs 2 to 8 are hypothetical in nature. None of the Proposed Declarations identify a particular incident which is impugned and are instead framed in broad, unlimited terms. For example, the Proposed Declaration at paragraph 2 is that “Tape-recording of interviews is permissible”. The Applicant’s oral submissions also made clear that the relief he sought was intended to assist him in thinking about how to “go forward” with Centrelink. Although it is true that the Applicant has given evidence in his affidavit and viva voce evidence of three discrete instances in which his requests to record interviews were refused (that is, on 15 April 2019, 19 June 2019 and 1 November 2023), the terms of the Proposed Declarations are not confined to one or other of these instances.

15    As I stated in Piotto v Chief Executive Officer, Services Australia [2020] FCA 976 at [47], whether it is unlawful for the Respondent to refuse to permit tape-recording by the Applicant will be a question of degree. That question cannot usefully be answered in the abstract without reference to the facts underlying an individual decision to refuse the Applicant’s request to perform that recording. It is not open to this Court to rely on the factual circumstances identified in the Applicant’s evidence to enunciate or declare a rule of general application concerning the permissibility of tape-recording.

16    It follows that the Court cannot grant the Proposed Declarations sought by the Applicant.

17    The Applicant has failed to establish any proper foundation for the Court to grant the relief sought. In these circumstances, the Applicant’s application must be dismissed with costs.

Associate:

Dated:    7 December 2023