Dudzinski v Harris [2001] FCA 444

FEDERAL COURT OF AUSTRALIA

Dudzinski v Harris [2001] FCA 444 WALDEMAR DUDZINSKI AND ANNA DUDZINSKI v BRIAN HARRIS, STEVE ULHMANN, S M ROSSINGTON AND DAVID ROSALKY Q 61 OF 2001 DOWSETT J 2 APRIL 2001 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 61 OF 2001

BETWEEN: WALDEMAR DUDZINSKI

FIRST APPLICANT

ANNA DUDZINSKI

SECOND APPLICANT

AND: BRIAN HARRIS

FIRST RESPONDENT

STEVE ULHMANN

SECOND RESPONDENT

S M ROSSINGTON

THIRD RESPONDENT

DAVID ROSALKY

FOURTH RESPONDENT

JUDGE: DOWSETT J

DATE OF ORDER: 2 APRIL 2001

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The application for interlocutory relief is denied. 2. The respondent deliver a defence on or before 23 April 2001. 3. The parties make discovery on oath on or before 21 May 2001. 4. Costs be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 61 OF 2001

BETWEEN: WALDEMAR DUDZINSKI

FIRST APPLICANT

ANNA DUDZINSKI

SECOND APPLICANT

AND: BRIAN HARRIS

FIRST RESPONDENT

STEVE ULHMANN

SECOND RESPONDENT

S M ROSSINGTON

THIRD RESPONDENT

DAVID ROSALKY

FOURTH RESPONDENT

JUDGE: DOWSETT J

DATE: 2 APRIL 2001

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 The applicants seek to review decisions made by the Department of Family and Community Services concerning their entitlement to various types of Social Security payments. The present hearing has focussed upon the entitlement of the second applicant to continued payment of a particular allowance by virtue of the provisions of ss 134 and 148 of the Social Security (Administration) Act 1999 (Cth) (the "SSA Act"). Those sections provide for continued payment of a benefit pending the determination of an application for review by a delegate or by the Social Security Appeals Tribunal. They apply only where the recipient in question has been given a notice pursuant to s 607 of the Social Security Act 1991 (Cth) (the "SS Act"). There is no reason to believe, for present purposes, that any such notice has been given. 2 The applicants' argument has been somewhat discursive, but it is clear that they challenge the merits of certain decisions taken by the Department. However that is not an appropriate issue for resolution in the present proceedings which are for prerogative relief. Put briefly, the applicants submit that the second applicant was entitled to a Newstart Allowance. Qualification for this allowance depends upon the second applicant satisfying the provisions of subs 593(1) of the SS Act. The relevant paragraphs are pars 593(1)(b) and 593(1)(e). Paragraph 593(1)(b) provides, in effect, that a person will qualify for a Newstart Allowance if he or she, throughout the relevant period, satisfies what is called the Activity Test, or is not required to satisfy that test. Paragraph 593(1)(e) provides that if a person is required by the Secretary to enter into a Newstart Activity Agreement, that person must do so. It is common ground that the second applicant entered into such an agreement in September 2000. However, on 4 December 2000, she indicated that she no longer intended to abide by it. As a result of this, the Department wrote to her on 21 December 2000 as follows: To qualify for Newstart Allowance you must be able to demonstrate that you are able to meet all the qualification criteria for payments of Newstart Allowance, including the requirements to enter into a Newstart Activity Agreement as required by the Secretary under section 593 of the Social Security Act 1991. You have indicated in your letter 4 December 2000, that you wish to withdraw all signatures from your current Activity Agreement and current Looking for Work claim, and therefore you would lose eligibility for Newstart Allowance. I give you notice under section 593 of the Social Security Act 1991 that your Newstart Allowance will be cancelled from 21 December 2000 as you refuse to enter into a Newstart Activity Agreement, and failure to satisfy the activity test. 3 The Activity Test referred to in par 593(1)(b) is defined in s 601, and in particular, in subs 601(5), which provides that: If a person fails to take reasonable steps to comply, throughout a period, with the terms of a Newstart Activity Agreement between the Secretary and the person, the person cannot be taken to satisfy the activity test in respect of the period in spite of any compliance of person with subsection (1). 4 It is reasonable to infer that following the second applicant's indication of her intention not to comply with the provisions of the agreement entered into in September last year, she did not do so. That issue has not been directly addressed. For so long as the second applicant failed to comply with the provisions of her agreement, she was not entitled to an allowance because of the provisions of par 593(1)(b). 5 The wording of the letter of 21 December 2000 may suggest that the second applicant's entitlement was to be stopped because she had failed to enter into an agreement, rather than for failing to comply with the terms of an existing agreement. It seems that there had been some suggestion in November, that she should enter into a new agreement. In the letter, the Department conflated the two ideas. Nonetheless, it is clear that the reason for the determination of the entitlement was the second applicant's indication that she would no longer be bound by the terms of the agreement entered into in September, 2000. The notice is not a notice pursuant to s 607. It is said to be pursuant to s 593, that is a notice terminating entitlement as a result of failure to comply with the provisions of s 593. 6 In the course of argument, various grounds were advanced to justify the second applicant's termination of the agreement. One was that it is described as a "Preparing for Work Agreement", rather than as a "Newstart Activity Agreement", as contemplated by s 604. However, following the signatures on the agreement, there is a paragraph which states that it is an agreement for the purposes of s 604(1)(C) of the SS Act. There is nothing in this point. It was also submitted that the second applicant had been induced to enter into the agreement by fraud in that there was some ulterior purpose motivating the departmental officers at the time of making the agreement. There is no evidence of this. It was also suggested that the agreement was not binding upon the second applicant because she had not received a notice as contemplated by subs 605(3) of the SS Act. This requires the Secretary to give to a person required to enter into a Newstart Activity Agreement, notice of that requirement and of the places and times at which the agreement is to be negotiated. This section is designed to enable a recipient of social security to have an adequate opportunity to enter into such an agreement. It is not intended to be a condition precedent to any enforceable agreement being reached. The second applicant entered into negotiations and signed the resulting agreement. I cannot see any basis for invalidity arising out of those circumstances. 7 It was also said that the agreement was not in a form approved pursuant to s 604(1)(C) of the SS Act in that it had not been approved by the employment secretary. I take s 604(1)(C) to relate to approval of a common form as is frequently done by regulation, and not to require actual agreement to every Newstart Activity Agreement entered into pursuant to the Act. Whether this is so or not, there is, as far as I can see, no evidence that any necessary agreement was not forthcoming. 8 I am, for the moment, only concerned with whether or not the applicants have demonstrated a serious question to be tried. Assuming that I otherwise have authority to order that the Department continue to pay the allowance, I am not satisfied that there is a serious question to be tried in this case; nor do I think that the balance of convenience could be said to favour the grant of interlocutory relief. In those circumstances, I will decline to grant any relief pending the hearing of this matter. I order that the respondent deliver a defence on or before 23 April and that the parties make discovery on oath on or before 21 May. Costs will be reserved. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.