Federal Court of Australia

Snow v Secretary, Department of Social Security [2025] FCA 557

ORDERS

THE COURT ORDERS THAT:

1.    The appellant be granted leave to rely on the document entitled “Supplementary Amended Notice of Appeal” accepted for filing on 16 January 2025, except in relation to paragraph 17 of that document.

2.    Order 10 of the orders made on 4 March 2025 be varied, such that the outlines of submissions are not to exceed 15 pages in length, including any annexures, and be easily legible using a font size of at least 12 points and one and a half line spacing throughout, including in any footnotes and annexures. Italics or underlining must be used for legislation and case citations and boldface or italics may be used for occasional emphasis.

3.    The appellant’s application for access to the audio tapes of the hearing before the primary judge be refused.

4.    The costs of the case management hearing, if any, be reserved.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

1    In Snow v Secretary, Department of Social Security [2024] FCA 608, the primary judge dismissed the appellant Mr Snow’s appeal against a decision of the Administrative Appeals Tribunal (Tribunal) that pension arrears be calculated as from August 2017 and be paid to the appellant in accordance with the reasons handed down by the Tribunal on 3 March 2022 (AAT Decision).

2    The issue arose out of an earlier decision by the Tribunal affirming a decision of an officer of the Department of Human Services (later affirmed by an authorised review officer) to reduce Mr Snow’s age pension entitlement as a result of income received from a discretionary trust.

3    For the purposes of the AAT Decision, it was central to the appellant’s case that he was entitled to arrears from a much earlier time than August 2017.

4    In the AAT Decision, it was found that the jurisdiction of the Tribunal was limited by s 109 of the Social Security (Administration) Act 1999 (Cth) to the date the appellant first asked for a review, and that the appellant’s legal entitlement to any arrears of pension went back to August 2017 and not any earlier.

5    The Tribunal also dealt with three other issues, viz:

(1)    what effect, if any, did the extinguishment of the discretionary trust have on the appellant’s pension entitlements;

(2)    whether the discretionary trust was an “exempt lump sum”, such that it should never have been taken into account in calculating the pension; and

(3)    whether the appellant in fact sought review of the decision to take the income received from the discretionary trust into account in calculating the arrears payable.

6    Before the primary judge, the appellant contended that the Tribunal had made a number of errors of law in deciding each of those issues against Mr Snow.

7    Mr Snow has appealed against the decision of the primary judge dismissing his appeal. The Full Court appeal will be heard on 18 August 2025 by a bench comprised of Goodman and Meagher JJ and myself.

8    Mr Snow intends to rely on a “Supplementary Amended Notice of Appeal” (SANOA) accepted for filing on 16 January 2025. At an earlier case management hearing before Charlesworth J, her Honour raised the question of whether proposed paragraph 17 of that document was tenable.

9    I convened a hearing this morning to deal with that question.

10    Mr Snow relied upon a six-page written submission headed “Appellant’s reasons for pressing Paragraph 17 of the Supplementary Amended Notice of Appeal”.

11    Proposed paragraph 17 is in the following form:

Denial of natural justice/procedural fairness

Legal aid generally

17.     Natural justice/procedural fairness appear to be generally confined to their application by quasi-judicial and judicial persons. In this case, the Applicant has been denied natural justice/procedural fairness by being prevented from being effectively heard because of, minimal legal advice, assistance and representation from five legal aid organisations, non-exclusively:

(a)     JusticeNetSA

(i)     Issuing a restricted brief leading to counsel’s restricted advice and an unacceptable offer of restricted representation during AATI

(ii)    failure to meet an undertaking to provide procedural advice, particularly about preparation of a Notice of Appeal to the original Court leading to flawed submissions and lengthy extensions of time to lodge documents

(iii)     refusal to seek aid for predominantly procedural matters, issuing apparently a full brief to 200 supporting solicitors but reporting none had the skills and capacity to accept it

(b)     The University of Adelaide law student advisory service after advising questions of law were based on s 5 of the Administrative Decisions (Judicial Review) Act 1977 failing to provide offered advice about drafting them.

(c)    The Access to Justice Project declining to provide advice about how to draft errors of law unless a full brief of the matter was provided.

(d)    The Attorney-General declining to provide legal assistance using his discretions power pursuant to Guideline 1.5(7) of the Commonwealth Guidelines for Legal Financial Assistance.

(e)    Probable interference in the Court’s procedures by the Attorney-General, affecting Judgment.

Leave will be sought to introduce new evidence in the form of correspondence between the Appellant and the three organizations, and the Attorney-General.

(Emphasis in original.)

12    The written submission does not in fact advance any reasons why leave should be granted to allow proposed paragraph 17. As Mr Chan (who appeared for the respondent) submitted, any question of Mr Snow’s unsuccessful attempts to secure legal representation (from JusticeNetSA, the University of Adelaide law student advisory service, the Access to Justice Project or the Attorney-General) prior to the hearing before the primary judge (or the Tribunal, for that matter) has no conceivable bearing upon any issue that could possibly arise on appeal.

13    For those reasons, Mr Snow’s application to include paragraph 17 in the SANOA is refused.

14    Mr Chan told me that the respondent does not otherwise object to the SANOA.

15    Accordingly, Mr Snow will be granted leave to rely on that document except in relation to paragraph 17.

16    At the hearing this morning, Mr Snow also sought leave to file written submissions of 15 (rather than 10) pages in length. Mr Chan offered no particular resistance to that request, on the basis that his client also be granted equivalent leave. I granted such leave to both parties but, as I said to Mr Chan, that is no reason that the submissions should necessarily be of that length. I also reminded Mr Snow that the submissions must be compliant with the relevant court rules and that the length of the submissions cannot be contrived to be longer (for example, by impermissibly using single spacing, attaching schedules, modifying the margins and the like).

17    Mr Snow also sought access to the audio tapes of the hearing before the primary judge, despite the fact that he has been provided with a written transcript of the hearing before his Honour. I refused that application because no possible basis for making such an order was proffered.

18    I also note, because Mr Chan mentioned it, that Mr Snow has separately made an application that Meagher J recuse herself from sitting on the appeal. As I said this morning, that application will be determined by her Honour in due course.

Associate:

Dated:    27 May 2025