Federal Court of Australia

Brindle v Centrelink [2025] FCA 374

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s originating application filed 24 January 2025 be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

WHEATLEY J:

1    The Applicant filed an originating application on 24 January 2025. That document named Corazon Brindle as the Applicant and the Respondent as Centrelink. The details of Ms Brindle’s claim were (in full) as follows:

On the grounds stated in the statement of claim, accompanying affidavit or other document prescribed by the Rules, the Applicant

1.     My evidence will proved that centrelink committed unconscionable conduct because i was accused of huge overpaid debt and the accusation was done without evidence and without authority nor jurisdiction. Which is one way of falsely accused someone Including retaliation which is another injustice that i suffered So i suffered so much injustice which qualified for unconscionable conduct.So i was falsely accused of huge overpaid debt because the accusation was done without evidence and without authority nor jurisdiction. Because base on centrelink rules only authorized review officer made a decision about overpaid debt

(errors in the original)

2    The Applicant in her originating application provides her address for service by way of an email address and what appears to be a residential address. The address for service of the Respondent is stated to be Centrelink, Reply Paid 7800, Canberra BC ACT 2610. The affidavit in support or filed with the Applicant’s originating application dated 24 January 2025 only comprises one substantive paragraph and a second precedent paragraph from the form. The first paragraph states:

I corazon brindle, [Applicant’s address redacted], carer [*either]say on oath [*or]affirm:

1.     [*]I am the [role of party eg Respondent] [*or]I am the [position of officer eg director] of the [role of party eg Respondent] and I am authorised to make this affidavit on the [role of party eg Respondent]'s behalf. [*or]I am a witness.

(errors in the original)

3    The second paragraph is clearly just the precedent paragraph from the pro forma affidavit, but, as can be seen from the first substantive paragraph, the Applicant has not sought to actually provide the details or the basis upon which she provides the affidavit. The affidavit attaches to it several pages of typed text, which are difficult to follow.

4    That text attached to the affidavit contains links to various dictionary definitions, Google searches, and websites, such as the Services Australia website. Again, I emphasise that this material attached to the affidavit is very difficult to follow. Amongst the matters that are attached to the Applicant’s affidavit include a letter from Centrelink dated 27 November 2024. That letter commences with the following:

We have checked your Carer Payment. Based on the information we have, you were paid too much.

5    The letter continues and sets out the details of the period of time to which the debt relates and the amount that is claimed to be owed. On the second page of that letter, it provides details for the Applicant to apply for a formal review of the decision, noting that there is no time limit for a review of that decision about the money that is claimed to be owed. The letter then provides further details about if the Applicant did not agree with the outcome of the formal review, that the applicant could apply to the Administrative Review Tribunal. The letter notes that the Tribunal is an independent body that can review the formal review decision.

6    The review by the Tribunal is a full merits review process.

7    Also attached to Ms Brindle’s affidavit is a letter dated 17 December 2024 which appears to follow an application for a formal review which was made by Ms Brindle. The letter commences with the following:

I am writing about your application for a formal review of the decision made on 26 November 2024 to ask you to repay a Carer Payment debt of $34,596.05 for the period 22 June 2013 to 27 September 2024.

I am an Authorised Review Officer and I have been asked to review this decision. Before I review the decision I would like to speak with you.

8    The letter continues and provides details for the Applicant to be able to contact the authorised review officer. It is unclear on the material what then happened to that formal review process. There is another letter attached to the affidavit from Services Australia but dated 6 December 2023. It is difficult to understand how that earlier letter, some 12 months earlier, relates to the decision of 27 November 2024. Upon the filing of this matter with the court, the Court registry informed the Applicant on 10 February 2025 that it had been allocated to my docket and would be listed today, 28 March 2025 at 9am, for a case management hearing. At the time of that correspondence, the Court registry described the hearing as a first case management hearing.

9    However, given the state of the Applicant’s documents, noting that the Applicant is a litigant in person, and that the Respondent did not at that time (and does not still), appear to have been served, I directed Judicial Registrar Buckingham to assist and have the matter listed for case management before him prior to it being before me on 28 March 2025. There has been some correspondence from the Applicant to the Court registry. Without being critical, it is difficult to understand precisely what is being contended by the Applicant in that correspondence, and I note that that correspondence has not been formally filed in the Court.

10    In response to the Court registry’s email of 10 February 2025, the Applicant did respond, noting several matters. Particularly, the Applicant observed that the matter had been allocated to “Judge Wheatley” and seemed to be seeking an explanation about whether or not certain material was provided to the Court. However, what can be understood from that email is that the Applicant was aware of today’s listing and its allocation to me.

11    On 14 February 2025, the Court registry wrote further, noting that Registrar Buckingham had been assigned to assist the docket judge in case managing these proceedings. The Applicant was advised that the matter would be listed for a first case management hearing before Registrar Buckingham not before 11.30am on 19 February 2025. That email also noted and inquired whether or not the Respondent had been served with the proceedings. If the Respondent had been served, the email from the Court registry requested that an affidavit of service be filed.

12    On 16 February 2025, the Applicant responded twice to the Court registry’s 14 February 2025 email, noting, amongst other matters, that she was unable to attend in person because she is the carer for her husband. On the morning of 18 February 2025, amongst other matters, the Court registry responded to that correspondence in relation to the Applicant’s appearance for 19 February 2025. Relevantly, the Court registry provided material to assist the Applicant, including links to the Central Practice Notes, observations regarding legal assistance and an offer to provide an audiovisual link so that the Applicant could appear by way of that process, rather than having to attend in person.

13    On the afternoon of 18 February 2025, the Applicant responded further, noting that the application had been “accepted” by the Court. By this email, the Applicant referred to “temporarily withdraw[ing]” the application. It also appears that the Applicant was seeking for the matter to simply be dealt with without having to attend. Later that afternoon, the Court registry provided the Applicant with a Microsoft Teams link to facilitate the Applicant’s attendance on 19 February 2025 by audiovisual means. This would then allow the Applicant to still be at home while she attended Court on that first occasion.

14    Later that evening, the Applicant responded to that email from the Court Registry, noting that as she was the Applicant, the Court had “no right” to continue without her permission. The Applicant referred to her earlier temporary withdrawal of the application, so that any decision made by Registrar Buckingham would not be valid. The Applicant also makes a reference to or seeks that the Court registry awaits the making of a decision by the Attorney-General, the Honourable Deborah Frecklington. The Applicant advised the Court registry that a formal complaint was being made to the Attorney-General. It is unclear what was the basis of that allegation.

15    The transcript of the proceedings on 19 February 2025 records that the court officer checked the audiovisual link, noting that there was no appearance. The court officer also called the matter outside, and again, there was no appearance. Registrar Buckingham noted the non-appearance by the Applicant and adjourned the matter to 25 February 2025. The order of the Court on 19 February 2025 was as follows:

1.    The case management hearing is adjourned to 10.30am on 25 February 2025.

2.    The applicant is to appear at the case management hearing in person or, if that is not possible, by Microsoft Teams utilising the following link:

16    A Microsoft Teams link was provided in that order of Registrar Buckingham.

17    On 20 February 2025, the Court registry wrote to the Applicant, providing a copy of the orders from the hearing on 19 February 2025. The Court registry advised the Applicant of the further listing on 25 February 2025 and provided an additional Microsoft Teams link for the 25 February 2025 hearing. From the transcript on 25 February 2025, it is clear that the Applicant again did not appear or attend either by way of the audiovisual link which was provided or in person at the Court. Again, Registrar Buckingham noted the non-appearance by the Applicant and adjourned the matter to 18 March 2025. The order of the Court on 25 February 2025 was as follows:

1.    The case management hearing is adjourned to 9.30am on 18 March 2025.

2.    The applicant is to appear at the case management hearing in person or, if that is not possible, by Microsoft Teams utilising the following link:

18    A Microsoft Teams link was again provided in that order of Registrar Buckingham. On 26 February 2025, the Applicant wrote further to the Court registry complaining about the videoconferencing which had been offered. The Applicant stated that videoconferencing “is not required and its up to judge discretion and application by party about videoconferencing (sic)”. There is a suggestion in that email by the Applicant that Registrar Buckingham was not able to require the videoconference attendance by the Applicant.

19    The Applicant also stated that she had changed her mind in relation to the “dismissal” and that she had asked for help from “our Minister”. It is unclear what the Applicant means when she refers to the “dismissal” and “our Minister”. The proceedings were again before Registrar Buckingham on 18 March 2025. It is clear that the Applicant, once again, failed to attend on that occasion before Registrar Buckingham. Registrar Buckingham made the following orders on 18 March 2025:

1.     The case management hearing is adjourned to 9.00am on 28 March 2025 before Justice Wheatley.

2.     The question of whether an order should be made dismissing the proceeding pursuant to section 37P of the Federal Court of Australia Act 1976 (Cth) because of the applicant’s non-appearance at the case management hearings listed on 19 February 2025, 25 February 2025 and 18 March 2025 is referred to Justice Wheatley for consideration.

3.     There is no order as to costs.

20    On 25 March 2025, the Court registry wrote again to the Applicant providing a copy of each of the orders that had been made in these proceedings dated 19 February 2025, 25 February 2025 and 18 March 2025. The correspondence also referred to the previous correspondence sent to the Applicant, which among other matters, provided the Applicant with the date and place of the case management hearings and a Microsoft Teams link to facilitate that appearance. The correspondence also expressly referred to s 37P of the Federal Court of Australia Act 1976 (Cth) (FCA Act) in relation to considering dismissal of the proceedings due to the Applicant’s non-appearance. The Court registry also provided a link to s 37P of the FCA Act. Once again, the Court registry provided the details of the case management hearing for today at 9 am Friday 28 March 2025.

21    As has already been noted, there is no appearance here today by the Applicant. Section 37P provides the following:

37P    Power of the Court to give directions about practice and procedure in a civil proceeding

(1)    This section applies in relation to a civil proceeding before the Court.

(2)    The Court or a Judge may give directions about the practice and procedure to be followed in relation to the proceeding, or any part of the proceeding.

(3)    Without limiting the generality of subsection (2), a direction may:

(a)    require things to be done; or

(b)    set time limits for the doing of anything, or the completion of any part of the proceeding; or

(c)    limit the number of witnesses who may be called to give evidence, or the number of documents that may be tendered in evidence; or

(d)    provide for submissions to be made in writing; or

(e)    limit the length of submissions (whether written or oral); or

(f)    waive or vary any provision of the Rules of Court in their application to the proceeding; or

(g)    revoke or vary an earlier direction.

(4)    In considering whether to give directions under subsection (2), the Court may also consider whether to make an order under subsection 53A(1).

(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.

(7)    Subsections (5) and (6) do not affect any power that the Court or a Judge has apart from those subsections to deal with a party's failure to comply with a direction.

22    Section 37P should be read together with s 37M, the overarching purpose of civil practice and procedure provisions, to provide relevant context. It is worth setting out subs (1) and (2) of that provision:

37M    The overarching purpose of civil practice and procedure provisions

(1)    The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a)    according to law; and

(b)    as quickly, inexpensively and efficiently as possible.

(2)    Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner;

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

…

23    The High Court, in the decision of Expense Reductions Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46 at [56] and [57], when considering similar, although not identical, provisions of the Civil Procedure Act 2005 (NSW), stated the following:

56     The evident intention and the expectation of the CPA is that the court use these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.

57    That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge's individualistic idea of what is fair in a given circumstance. Rather, the dictates of justice referred to in s 58 require that in determining what directions or orders to make in the conduct of the proceedings, regard is to be had in the first place to how the overriding purpose of the CPA can be furthered, together with other relevant matters, including those referred to in s 58(2). The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs. The terms of the CPA assume that its purpose, to a large extent, will coincide with the dictates of justice.

[emphasis added]

24    That purpose may require a more robust and proactive approach on the part of the courts. It is the application of these principles which are relevant in this case.

25    Her Honour Justice Charlesworth, in the matter of Prodata Solutions Pty Ltd v South Australia Fire and Emergency Services Commission (No 3) [2020] FCA 1210, recently considered the interaction between, relevantly, s 37P and s 37M, relevantly stating as follows:

84    Section 37P, r 1.34, and r 5.23 each form a part of the Court’s practice and procedure provisions. They must be interpreted and exercised in a way that best promotes the overarching purpose, namely to “facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible”: s 37M(1). The overarching purpose includes the objectives in s 37M(2). They are:

(a)    the just determination of all proceedings before the Court;

(b)     the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)     the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner;

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

85    The parties and their lawyers have a duty to conduct the proceeding in a way that is consistent with that overarching purpose: FCA Act, s 37N.

…

90    Both textually and logically, the question of whether the exercise of a power in a particular way would “best promote” the overarching purpose is a test that assumes the existence of that latitude as its starting point. In order for the command in s 37M to have any utility, the “overarching purpose” must be understood as conveying a singular objective that is capable of being best promoted by a decided outcome, relative to other outcomes that might otherwise be open to the Court were it not for the enactment of s 37M(1). As such, I do not consider it appropriate to characterise the requirement in s 37M(1) as a consideration capable of being outweighed by other countervailing considerations. Nor is it to be understood as merely listing a variety of countervailing factors to be weighed in the balance in the exercise of the power in question. Rather, s 37M(1) conditions the manner in which all powers conferred by the Court’s practice and procedure provisions are to be interpreted and exercised. It confines the latitude that might otherwise be available to the Court in the exercise of those powers: given a choice between outcomes, the Court must choose the outcome that best promotes the overarching purpose. The task of identifying the manner of exercising a power that “best promotes” the overarching purpose involves evaluative elements, but the task itself is mandatory. And the Court must exercise its powers according to the outcome of it.

91    The phrases “just resolution of disputes according to law” and “the just determination of all proceedings before the Court” are to be interpreted in that context and in a way that is harmonious with other elements of the overarching purpose. They must also be interpreted in a way that can be reconciled with s 37P of the FCA Act, conferring as it does a power to dismiss a proceeding in the event of a party’s failure to comply with a procedural order of the Court if the judge thinks appropriate. The very existence of that power contemplates a circumstance where it may be appropriate (and therefore just) to dismiss an originating application other than on its substantive merits and without first conducting a trial. As the High Court emphasised in AON Risk Services Australia Limited v Australian National University (2019) 239 CLR 175, the question of what is “just” is not to be answered solely by reference to the interests of the applicant party in a civil proceeding, nor is the question to be answered solely by reference to whether prejudice caused to another party by the Court’s orders or indulgences can be compensated with an award of costs. The word “just” in s 37M and s 37N of the FCA Act should be interpreted accordingly.

[emphasis in original]

26    Her Honour also notes at the end of [100] that:

... there is no hard and fast definition as to what constitutes proper grounds for proceedings to be dismissed under s 37P of the FCA Act…

27    What is required, though, in relation to considering whether a matter should be dismissed under s 37P in light of s 37M, is a balancing and a regard of all of the particular circumstances of the case.

28    In this matter, the originating application has now been filed in the Court for more than two months. There is no information regarding whether or not the Respondent has been served. The Applicant has been expressly asked to provide details of service of the Respondent and nothing has been forthcoming from the Applicant. There is no affidavit of service provided on the Court file. There is no notice of appearance by the Respondent, but that is likely due to the lack of service on the Respondent.

29    It is unknown whether or not the Applicant has sought to engage in the merits review process in the Tribunal, which was expressly referred to in the letters sent to her by Centrelink in relation to the alleged carers-payment debt. If a merits review has not yet been sought in the Tribunal, it may be that that is a preferable course for the Applicant to first undertake rather than seek to come to this Court first.

30    It is unclear whether “Centrelink” is the correct Respondent or whether it should be the Secretary, Department of Social Services. It is fair to say that the Applicant has sought to identify an address for providing this application to Centrelink in the originating application, but it is unclear whether or not that reply paid address is the correct address for service and, as already noted, whether or not Centrelink is the correct Respondent.

31    The Applicant, in correspondence, has at various times sought, or at least suggested, that the matter should be dismissed or temporarily dismissed and then has sought for the matter to be recontinued. There are unclear references to the Applicant seeking the involvement of the Attorney-General or “our Minister”. Again, it is unclear what is meant by those references or what it is that the Applicant is seeking to achieve with those referrals, if that is what they are.

32    The originating application of the Applicant is, with respect, entirely unclear and it is unknown on what basis it is actually brought and what relief is sought by the application as none is stated in the originating application. As I set out above, the details of the claims as stated in the original originating application are the entirety of the matters set out in that document. There are no orders sought by the Court. And even if one was to infer that it was in some way referable to the alleged carers-payment debt, given the different dates of documents, internal reviews and earlier dated documents, it is unclear to which decision or decisions this application is sought to relate.

33    The details of the claims provided in the originating application do not provide a date or dates of any decision or decisions which are sought to be reviewed. It is not clear whether this is sought to be a judicial review application of any decision or whether or not such a decision is a decision under an enactment. The originating application is brought not under those provisions or rules, but under the general originating application provisions of the Court.

34    The Applicant appears to be unwilling to appear at Court at all, either in person or by way of an audiovisual link which has been provided to her on multiple occasions to try and facilitate her appearance. The Applicant has indicated that she will not be attending in court, in person or by way of an audiovisual link. The explanation for this seems to be that she is the carer for her husband and cannot attend in person. However, that does not explain, in my view, why she has been unable to attend by way of audiovisual link. There has also been no indication from the Applicant that there are difficulties with attending by that audiovisual link, and there has been no request by the Applicant to appear by telephone.

35    The Applicant has been provided with three previous opportunities, four including today, to attend at Court, and she has not availed herself of any of these opportunities. A party must attend at Court on a date fixed for the return date of the proceedings. This matter has now occupied time in Court before Registrar Buckingham on three separate occasions without appearance and again today.

36    In all the circumstances, and in accordance with the overarching purpose of civil practice and procedure from s 37M of the FCA Act – particularly, noting subs (1)(a) and (b) – and that the Applicant has previously been ordered to appear at the previous case management hearings but has failed to appear, it is clear that the Applicant has, in accordance with s 37P(5), failed to comply with the direction of the Court. Hence the Court may do any of the following, including in subs (6)(a), dismiss the proceeding in whole or part. That, in my view, in accordance with s 37M(1)(a), is the law to which it is appropriate to dismiss the proceedings.

37    Further, this provides a quick, inexpensive and efficient means of facilitating the just resolution of this dispute. The efficient use of judicial and administrative resources, as well as the efficient disposal of the Court’s overall case load, in accordance with ss 37M(2)(b) and (c), which are also relevant considerations to take into account. As already observed, Charlesworth J in Prodata considered the relationship between s 37M and s 37P, and although it does involve an evaluative process, it must be in accordance with that overarching purpose. In my view, and for all of the above reasons, the proceedings must be dismissed.

Associate:    

Dated:    16 April 2025