Burgess v Department of Employment and Workplace Relations [2007] FCA 945

FEDERAL COURT OF AUSTRALIA

Burgess v Department of Employment and Workplace Relations [2007] FCA 945

DARREN JOHN BURGESS v DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS NSD 431 OF 2007

ALLSOP J

12 JUNE 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 431 OF 2007

BETWEEN: DARREN JOHN BURGESS

Applicant

AND: DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

JUDGE: ALLSOP J

DATE OF ORDER: 12 JUNE 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for extension of time to file and serve a notice of appeal from the Administrative Appeals Tribunal filed on 20 March 2007 be dismissed with costs. 2. The applicant pay the respondent's costs, that is, the costs of the Secretary of the Department of Employment & Workplace Relations. THE COURT DIRECTS THAT: 3. Should Mr Darren John Burgess file any application in the New South Wales District Registry in which the Secretary of the Department of Employment and Workplace Relations or Centrelink is a party, the District Registrar place the proceeding, in the first instance, in the docket of Allsop J. 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 NSD 431 OF 2007

BETWEEN: DARREN JOHN BURGESS

Applicant

AND: DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

JUDGE: ALLSOP J

DATE: 12 JUNE 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for an extension of time to file and serve a notice of appeal from two decisions of the Administrative Appeals Tribunal (the "Tribunal") in January and September 2006. The nature of the application is best understood by a recounting of events made clear in the affidavit of an officer of the Australian Government Solicitor, Ms Hervee Dejean in her affidavit sworn 20 April 2007. The matters leading up to and following the decision of the Administrative Appeals Tribunal of 16 January 2006 are as follows. 2 In 2004 the applicant, Mr Burgess, requested Centrelink to pay him his lifetime entitlement to rent assistance in a lump sum payment in advance in order that he might build a house. 3 Annexure HD-1 to Ms Dejean's affidavit contains Mr Burgess' request. That request was refused by an officer of Centrelink. Later on 14 September 2005 an authorised review officer determined that the applicant could not be paid the lump sum payment in advance under the provisions of the relevant social security legislation. A copy of the review officer's decision is contained as annexure HD-2 to Ms Dejean's affidavit. On 7 October 2005 the Social Security Appeals Tribunal reviewed the review officer's decision. It affirmed that decision and its reasons were set out as annexure HD-3. Those reasons clearly set out the relevant findings of fact and a conclusion that in all relevant respects there was no relevant provision of the Social Security Act 1991 (Cth) which permitted the course that Mr Burgess requested. 4 The applicant appealed that decision to the Tribunal. The Tribunal made its decision on 16 January 2006. That is the first of the Tribunal decisions that are the subject of this application. The reasons of the Tribunal were short and clear: that there was no statutory authority to pay the lump sum for possible future claims in one lump sum brought forward. 5 The applicant appealed to the Federal Court of Australia under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). That appeal is of course an exercise of original jurisdiction notwithstanding the name "appeal". On 27 April 2006, Stone J dismissed the appeal and made orders on that day. Later in May 2006, Stone J ordered that the applicant, Mr Burgess, pay the respondent's costs fixed in the sum of $1,200. 6 On 29 June 2006, the applicant applied to this Court for an extension of time in which to appeal from the decision of Stone J. That matter was dealt with by Tamberlin J on 22 November 2006. The applicant, Mr Burgess, did not appear when the matter was called on before his Honour. His Honour dealt with the matter on two bases. First, the non-appearance of Mr Burgess and second that having regard to the grounds set out in the notice of appeal and the material which had been filed, his Honour considered that there were no reasonable arguments to sustain any possible appeal. 7 Thus in relation to the first decision of the Tribunal not only has there already been an appeal under s 44 of the Administrative Appeals Tribunal Act, but also that appeal has been dismissed and leave to appeal from that decision has in effect been refused by reason of the refusal of an extension of time in which to file a notice of appeal. 8 What is now sought in the application filed on 20 March 2007 is in effect a second appeal in relation to this first decision. No coherent reason has been given why it could possibly not be an abuse of process to simply begin again a process of judicial review of the Tribunal decision which has already occurred. If there was a legitimate complaint about the decision of Stone J the place to vindicate it was in the application for an extension of time before Tamberlin J. His Honour reached the view he did. It is not open to this Court to hear another complaint in the original jurisdiction against the Tribunal decision. 9 The decision of the Tribunal of 6 September 2006 was a different decision. Its origins can be found on 22 January 2006 shortly after the refusal by the Tribunal of the review of the Social Security Appeals Tribunal decision in respect of the first claim for a lump sum by Mr Burgess, which, as I have said, had its origins in a request in 2004. On 22 January 2006 the applicant, Mr Burgess, wrote to Centrelink requesting that he be paid another lump sum payment of disability support pension in a different and lesser amount to the earlier claim. His letter in that respect is contained in Ms Dejean's affidavit at annexure HD-9. 10 On 10 February 2006, this request was denied by an authorised review officer that determined that the applicant could not be paid the lump sum advance for the reasons that were given and which are contained in Ms Dejean's affidavit at annexure HD-10. In those reasons, the relevant request was refused on the basis that the statutory provision did not permit payment in advance beyond a sum of $500 in total. On 13 March 2006, the Social Security Appeals Tribunal reviewed and affirmed the relevant authorised review officer's decision. A copy of the decision of that Tribunal is at annexure HD-11 of Ms Dejean's affidavit. The reasons for the decision were that with the exception of a sum of $500 there was no statutory authority to pay a lump sum of public money for ongoing pension entitlements that were the subject of the claim. 11 The applicant sought a review of the Social Security Appeals Tribunal decision before the Tribunal. On 6 September 2006 the Tribunal decided the application for review and affirmed the decision. A copy of the decision of the Tribunal is annexure HD-12 to Ms Dejean's affidavit. Once again, the reasons of the Tribunal were that the secretary of the Department was not authorised to accumulate advances into a lump sum greater than $500. The applicant appealed the decision of the Tribunal to the Federal Court of Australia under section 44 of the Administrative Appeals Tribunal Act. Collier J in the Brisbane registry remitted that matter to the Federal Magistrates Court. 12 On 18 December 2006 the Federal Magistrates Court dismissed the appeal and ordered that Mr Burgess pay the respondent's costs. A copy of the decision of the Federal Magistrates Court is before me as annexure HD-14 to Ms Dejean's affidavit. On 22 January 2007 the applicant filed an appeal from the decision of the Federal Magistrates Court in the Brisbane registry of the Federal Court. That notice of appeal is before me as annexure HD-15. The appeal has not been heard; however, an application for security for costs was made by the respondent. On 24 April 2007, Greenwood J ordered that the appellant, Mr Burgess, provide security for the respondent's costs in the amount of $2,000 and that the appeal be stayed until such security has been provided. As can be seen from the outline of those facts, there has already been an application made to appeal from the second decision. 13 What is sought to be done in the application which is before me is to start again in respect of both decisions of the Tribunal by once again making an application under the Administrative Appeals Tribunal Act for an appeal from the Tribunal decisions one of which has been finalised, the other of which was already being dealt with by a judge of an inferior federal court, the Federal Magistrates Court, from which an appeal has been instituted. The only difference between the first decision and the second decision is that the appeal process in respect of the second decision of the Tribunal has not been exhausted. If Mr Burgess provides the security in respect of that appeal, then prosecutes it, he may or may not be successful. If he is successful, then orders will be made on that hypothesis. If he is not, likewise, orders will be made on that hypothesis. However, there is no basis to simply start again in the original jurisdiction in respect of the same matter. 14 For those reasons alone it would be appropriate to dismiss the application for an extension of time. However, I have looked at the material from the file on behalf of Mr Burgess, the affidavit filed on 20 March 2007 and the various documents sent to my chambers and to the registry which have been filed. No coherent basis for any possible error of law of the Tribunal has been identified. In any event, that question may be live before the Court in relation to the second decision, that is, of 6 September 2006 and it is inappropriate for me to identify anything other than the matters that I already have, being matters apparent to me upon reading the documents that have been filed by Mr Burgess. Therefore, for those reasons, in my view, the application for an extension of time should be refused. 15 I see no reason why the usual order for costs should not be made in particular in relation to applications which are manifestly an abuse of process of a Court, there already having been applications in relation to those matters. Therefore the application is dismissed with costs. I make a direction to the Deputy District Registrar that should Mr Burgess file any application in the New South Wales District Registry in which the Secretary of the Department of Employment and Workplace Relations or Centrelink is a party, that matter should at least in the first instance be placed in my docket. 16 The orders of the Court are: (1) That the application for an extension of time to file and serve a notice of appeal from the Administrative Appeals Tribunal filed 20 March 2007 be dismissed with costs; (2) That the applicant pay the respondent's costs, that is, the costs of the Secretary of the Department of Employment and Workplace Relations; and (3) I direct the District Registrar that should Mr Darren John Burgess file any application in the New South Wales District Registry in which the Secretary of the Department of Employment and Workplace Relations or Centrelink is a party, that proceeding should be placed in the first instance in my docket. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.