Castleman v Department of Family & Community Services [2002] FCA 1019

FEDERAL COURT OF AUSTRALIA Castleman v Department of Family & Community Services [2002] FCA 1019

HARVEY WILLIAM DAVID CASTLEMAN v DEPARTMENT OF FAMILY AND COMMUNITY SERVICES N 290 OF 2002

STONE J 8 AUGUST 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 290 OF 2002

ON APPEAL FROM THE GENERAL DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: HARVEY WILLIAM DAVID CASTLEMAN

APPLICANT

AND: DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 8 AUGUST 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. 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 290 OF 2002

ON APPEAL FROM THE GENERAL DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: HARVEY WILLIAM DAVID CASTLEMAN

APPLICANT

AND: DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: STONE J

DATE: 8 AUGUST 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for a review of a decision of the Administrative Appeals Tribunal ("Tribunal") made on 15 March 2002. The Tribunal affirmed the decision of the Social Security Appeals Tribunal made on 17 April 2001. The issue raised in the application concerns the refusal by the respondent to pay a newstart allowance in respect of a period commencing on 3 March 2000. BACKGROUND 2 The applicant applied for payment of the newstart allowance on 23 December 1997. Initially that claim was rejected on the grounds that the applicant failed the activity test. The applicant appealed this rejection and was eventually successful in this Court; Castleman v Secretary, Department of Social Security [1999] FCA 836. As a result the matter was remitted to the Tribunal for further consideration. 3 The relevant proceedings number for the second hearing by the Tribunal was N1999/1018. In that proceeding the respondent conceded that the applicant was entitled to the newstart allowance for the following periods: 1 January 1998 to 4 May 1998; 1 July 1998 to 25 October 1998; and 6 February 1999 to 29 September 1999. At that hearing, Mr Hodges, a solicitor who appeared for the applicant, indicated that he had been instructed that the applicant had commenced full-time employment from 30 September 1999. On the basis of that information the respondent wrote to the applicant, care of Mr Hodges, on 29 March 2000 and advised him that he was entitled to a newstart allowance as had been agreed before the Tribunal. That letter enclosed forms which the applicant was asked to complete for the purpose of assessing the rate of his entitlement under the newstart allowance. The letter also advised the applicant that "[i]f you are or become unemployed again and wish to be paid continuing newstart allowance, you will need to attend a Centrelink Customer Service Centre to arrange Job Network registration and referral and to reclaim newstart." 4 Subsequently, the respondent, in a letter to the applicant dated 5 April 2000, stated that the applicant's newstart allowance had been cancelled from 30 September 1999. The reason for this cancellation was because of the advice from Mr Hodges that the applicant had commenced full-time employment from that date. ISSUE FOR DETERMINATION 5 In one sense the issue before the Court is simple. The applicant asserts that in relation to a further period of unemployment he is entitled to a newstart allowance without making a further claim. This is despite s 16 of the Social Security (Administration) Act 1999 (Cth) ("the Act") which requires that a claim for the newstart allowance be made in writing and in the form specified. 6 The applicant's argument both before the Tribunal and before me is that if the application of 23 December 1997 was sufficient for the three periods of unemployment referred to at [3] above, it should also be sufficient for this latest period, commencing 3 March 2000. 7 That argument has a superficial attractiveness. However, it ignores one very important aspect of what happened previously. In conceding the applicant was entitled to newstart allowance for the earlier three periods on the basis of his application lodged on 23 December 1997 the respondent was exercising its discretion under s 126 of the Act to deem certain things which have not been done, or events that have not occurred, to have occurred. In the exercise of its discretion, the respondent was prepared to treat the applicant as if he had made applications for each of those periods and because of that, the application of 23 December 1997 was competent to apply to all of those periods. Although the respondent, is entitled to exercise its discretion in this way it is not obliged to do so. 8 In my opinion the notifications in the correspondence to which I have referred in [3] and [4] above, unambiguously indicated to the applicant that the respondent was not prepared to exercise such discretion in relation to any new period of unemployment and that compliance with the strict requirements of the Act was necessary in the future. That being so, the Tribunal was in my view correct in deciding that there was no application for newstart allowance and therefore no application for such allowance had been refused. I find no error in the Tribunal's decision, either in its findings of fact or in the application of the law to those facts. For these reasons the application must be dismissed with costs. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.