Smith v Secretary, Department of Family & Community Services [2001] FCA 773

FEDERAL COURT OF AUSTRALIA

Smith v Secretary, Department of Family & Community Services

[2001] FCA 773

COLIN SMITH v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

N 840 OF 2001

GYLES J

SYDNEY

21 JUNE 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 840 OF 2001

BETWEEN: COLIN SMITH

APPLICANT

AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: GYLES J

DATE OF ORDER: 21 JUNE 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Time for filing and serving a notice of appeal from the decision of the Administrative Appeals Tribunal constituted by Mr RP Hardley, Senior Member, given on 9 April 2001 at Sydney, be extended up to and including Wednesday, 27 June 2001. 2. The order to be sought in such notice of appeal shall be "the matter be remitted to the Administrative Appeals Tribunal to be dealt with in accordance with law". 3. The applicant is to apply forthwith to the Registrar for a date for settlement of papers for hearing of the proceeding, which date should be expedited. 4. Costs of this application be costs in the substantive proceeding. 5. The matter stand over for further directions to 9.30am on 31 July 2001. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 840 OF 2001

BETWEEN: COLIN SMITH

APPLICANT

AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: GYLES J

DATE: 21 JUNE 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT (EX TEMPORE) 1 This is an application to the Court for an extension of time to appeal from a decision of the Administrative Appeals Tribunal ("AAT") made on 9 April 2001. There is an appeal to this Court from that decision "on a question of law" but under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") such appeals should be made not later than the twenty-eighth day after the document setting out the terms of the AAT's decision is furnished or "within such further time as the Federal Court of Australia (whether before or after the expiry of that date) allows". 2 It has been conceded on behalf of the respondent that the extension of time was sought shortly after the expiry of the applicable time limit and that no prejudice would be suffered in this matter due to such delay. However, it is submitted for the respondent that it would be futile to grant the extension in this case as the applicant has not raised any arguable question of law arising from the AAT's decision in his proposed notice of appeal. 3 The questions of law raised in that draft notice of appeal are: "1. The Court made a reparation order of $19,326.19. The Department is seeking to recover a debt of $26,400.65. Why the difference. 2. The charges where dismissed in the Penrith Local Court for the period June 1994 to January 1997. Because of insufficient evidence the charges where there on the original summons but where dismissed. This contradicts with what was said at the Tribunal – why way charges if all the evidence is not available." 4 The solicitor for the respondent very helpfully prepared an outline of submissions, which are not reproduced, but which may be taken as read for the purposes of this decision. The applicant has very frankly said that, as a layman, he is unable to do more than raise what he considers to be an anomaly in relation to the interplay between a reparation order and the Departmental decisions in issue. He is not in a position to assist with any legal submissions. 5 I agree with the respondent that there is no arguable error of law involved in the manner in which the AAT applied s 1237AAD of the Social Security Act 1991 (Cth), if that be the applicable section. On any view, the order sought in the draft notice of appeal, namely, "all charges to be waived under s 1237AAD of the Act" is misconceived. The decision of the AAT on that point involved a question of fact, not, in the way the tribunal approached it, any question or error of law. 6 However, I am not satisfied that there is not an argument available to the applicant that the AAT did not deal with a question or questions of law which arose before it concerning the interplay between the reparation order made by a Local Court following conviction for an offence which led to overpayments on the one hand and the action to raise and recover a debt for what may amount to the same repayments on the other. Paragraphs 22, 30, 33, 35, 36, 37, 38, 39 and 40 of the decision of the AAT show that the issue was raised before the AAT. 7 The AAT dealt with the issue by finding, no doubt correctly, that it had no jurisdiction to review the reparation order made by the Local Court but proceeded to deal with the matter as if it were only an application pursuant to s 1237AAD of the Social Security Act 1991. It seems to me that there was at least a question as to whether the making of an order for reparation following conviction affected the Departmental decisions to raise and recover debts arising out of the same facts by other means. I would require argument going beyond the dimensions of an application such as that which is currently before me to be satisfied that the questions which appear to arise have been settled authoritatively by a decision of this Court. 8 For these reasons, I would not decline to grant relief on the basis of futility. As there is no other prejudice revealed, I propose to grant the extension sought. I should make clear, however, that I do not have before me the documents which were before the AAT, or the transcript of what took place before the AAT. If, on closer examination, it appears that the questions to which I have adverted were not properly before the AAT, then I would rescind the extension or otherwise decline to answer the questions. 9 The draft notice of appeal is in unsatisfactory form. The questions of law are not properly identified and I have pointed out that the order sought is inappropriate. I do not propose to become involved in settling the questions of law at this stage. The extension of time to file the notice of appeal will be granted on the basis that it is filed promptly and that the order sought in it will be "the matter be remitted to the Administrative Appeals Tribunal to be dealt with according to law". The leave to file the notice of appeal in its present form as to questions of law is without prejudice to the necessity to properly define those questions in due course. 10 It will also be necessary to settle the papers on which the "appeal" is to proceed, and the extension of time is granted on condition that application is made by the applicant forthwith to the Registrar for a date for settlement of those papers. The matter will be returned to me for further directions at a mutually convenient time in the future. Costs of this application will be costs in the substantive proceeding. 11 I should say that, having considered the nature and complexity of the proceeding, the general importance of the points which may arise, and the capacity of the applicant to obtain legal assistance outside the scheme, I will refer the applicant, pursuant to O 80 of the Federal Court Rules, to the Registrar for referral to a legal practitioner on the pro bono panel for assistance in drafting or settling of documents to be filed or used in the proceeding and for representation on direction hearings. I will consider whether any extension of that referral should be made in the light of events as they unfold. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.