' ale NOT FOR GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION NO. WAG 39 of 1987 ee ee BETWEE N: BRET BUSBY Applicant and THE REGIONAL MANAGER, DEPARTMENT OF SOCIAL SECURITY Respondent CORAM: FRENCH J. 16 APRIL 1987 EX TEMPORE REASONS FOR JUDGMENT The applicant in this case has instituted proceedings under the Administrative Decisions (Judicial Review) Act (1977) seeking review of a decision of the respondent to cancel his unemployment benefit in accordance with advice to the applicant from the respondent by a letter dated 26 March 1987. Various grounds for review are set out in the application reflecting grounds to be found in s.5 of the Judicial Review Act. Now is not the time or place to consider the merits of those particular grounds. Today the applicant, in person, as a matter of urgency, and I have permitted him to do so on the basis of a handwritten motion, seeks interlocutory orders pending the hearing of his substantive application. Secdaes Voreon > 2. The terms of the orders are as follows:- The Department of Social Security pay the applicant the sum of $280.80 as special benefit being the amount which would have been payable to the applicant had his unemployment benefit not been cancelled for the period 12 March 1987 to 29 March 1987 inclusive; The Department of Social Security pay the applicant special benefit at the applicable rate of unemployment benefit of $99.20 per week, plus $10.00 per week rent assistance from the date currently paid to, 1n the new unemployment benefit claim, 10 April 1987, to the date of settlement of this matter; The Department of Social Security refrain from reducing, postponing or cancelling the payment of the said benefit until, at the earliest, the date of settlement of this matter. The Department of Soc1al Security and its agents refrain from contacting the applicant's landlord or any other of the applicant's creditors. In the alternative he claims orders that:- The Department of Social Security pay the applicant the sum of $218.40 as special benefit, being the amount which would have been payable to _ the applicant had his unemployment benefit not been cancelled for the period 12 March 1987 to 25 March 1987 inclusive, being the period of coverage of the "application for continuation of unemployment benefit" from which was the last form of that claim; The Department of Social Security pay the applicant special benefit at the applicable rate of unemployment benefit of $99.20 per week plus $10.00 per week rent assistance to be paid fortnightly from the dates which would have been applicable had the applicant's unemployment benefit not been cancelled. Thus, by direct credit to _ the applicant's bank account, the next payment would be due on 23 April 1987 to the date of settlement of this matter. 3. As for part 1; 4. As for part 1; 5. The payment for section 1 of part 1 or part 2 be made by counter cheque within 24 hours of the making of the order. The evidence establishes that the applicant, who was on unemployment benefit, had the benefit cancelled with effect from the week ending 13 March 1987. He received no payment of any benefit For the period from 13 March until 30 March. Subsequently, however, he rece1ved special benefit because of hardship and has been paid, on a new claim for unemployment benefit, for the period from 4 March to 10 April. Unemployment benefit is paid 2 weeks in arrears. He is due to lodge a continuation form known as a form 19B on 29 April, and according to the evidence of the officer in charge of the unemployment benefit and sickness benefit section of the Department of Social Security, assuming that he complies with the requirements of s.107 that unemployment benefit will be continued. In respect of the period of cancelled benefit, that is to say the period covered by 13 March to 30 March during which he received no payment he has instituted appeal proceedings through the Social Security Appeals Tribunal, and that tribunal which has no final determinative but a recommendatory power had its hearing last Tuesday. No decision has yet been given in relation to that appeal. 4. I note that an appeal on the merits of the cancellation in respect of that period would ultimately lie to the Administrative Appeals Tribunal. In support of his application for interlocutory relief the applicant refers to the hardship under which he suffers as a result of the cancellation of the unemployment benefit during the 2 week period already referred to and the fact he was, in any event, 1n an extremely difficult financial situation. These matters are set out at some length in his affidavit in support of the substantive application which was sworn on 6 April 1987. That was supplemented by oral evidence given by him in support of the interlocutory relief. Generally, he indicates, as a result of his financial circumstances, that he faces the possibility of eviction, the possibility that his electrical power supply will be disconnected. He sayts he has had a seriously reduced food intake and as a result has lost weight and suffered other physical side effects. The power of the Court to grant interlocutory relief pending the hearing of a substantive application under' the Administrative Decisions (Judicial Review) Act has two sources. The first is s.15 of the Act which provides:- 15.(1) The making of an application to the Court under section 5 in relation to a decision does not affect 5. the operation of the decision or prevent the taking of action to implement the decision but - (a) the Court or a Judge may, by order, on such conditions (if any) as it or he thinks fit, suspend the operation of the decision; and (b) the Court or a Judge may order, on such conditions (if any) as it or he thinks fit, a stay of all or any proceedings under the decision. (2) The Court or a Judge may make an order under sub-section (1) of its or his own motion or on the application of the person who made the application under section 5." That section 1s inapplicable in the present case as the unterlocutory orders sought do not involve the suspension of the operation of the decision to cancel unemployment benefit which is the subject of the application for review. Notwithstanding that, the Court has power under s.23 of the Federal Court of Australia Act 1976 to make interlocutory orders. That section provides:- "23. The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate." Generally speaking the test for the grant of interlocutory relief under s.23 in a case where s.15 is not applicable requires the applicant to establish that there 1s a serious question to be tried and that the balance of convenience favours the grant of the interlocutory relief. In this case the 6. form of orders that are sought 1S mandatory rather' than restrictive. It is not a form of order which in the legal sense would maintain the status quo. I emphasise "the legal sense", because I have no doubt that the applicant would say that from his point of view it would merely reinstate him to his entitlement and prevent the continued suffering on his part of hardship flowing from that cancellation. Having regard to the fact that the applicant's unemployment benefit has now been reinstated albeit by way of a fresh claim and that he is in continuing receipt of that unemployment benefit, that the appeal in respect of the cancellation during the period from 13 March to 30 March is under active consideration by the Social Security Appeals Tribunal, that on the material presently before the court and on the basis of the —— submissions made to the court, the significant hardship that he has suffered cannot be attributed solely or even, I would think, substantially to the period of cancellation I am, as a matter of discretion, not prepared to make the orders sought. In fact I have serious reservations as to whether I **would have the power to make those orders for they, in effect, -»-«seek from the court a direction to the Department of Social "Security or to the relevant officer of it, to exercise a - discretion ina particular way by payment of a benefit. <me _ os -- —e 7. Now the whole point of the Judicial Review Act is to ensure that the process of decision making follows the appropriate rules of law and procedure. Generally speaking, the Court does not exercise a substitutive decision making role. Rather, the usual remedy that is granted involves the remission of a decision for reconsideration by the decision maker. It is unusual for the court to make a mandatory order substituting its own view of the correct decision for that of a decision maker as a form of final relief. A fortiori it would be extraordinary that the Court should on an interlocutory basis make a substitutive decision requiring the payment of a particular benefit to the applicant pending the hearing of the substantive application. The practical consequences of such an order in this case would be effectively to dispose of the substantive application. For those reasons I will dismiss the application for interlocutory relief. I hereby certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice French.