Clausen v Secretary, Department of Education, Employment & Workplace Relations [2008] FCA 842

FEDERAL COURT OF AUSTRALIA

Clausen v Secretary, Department of Education, Employment & Workplace Relations [2008] FCA 842

Social Security Act 1991 (Cth), ss 1217, 1218C Administrative Appeals Tribunal Act 1975 (Cth), s 44 Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 ADRIAN CLAUSEN v SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

TAD 15 2008

MARSHALL J

4 JUNE 2008

HOBART

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY TAD 15 2008

BETWEEN: ADRIAN CLAUSEN

Applicant

AND: SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

JUDGE: MARSHALL J

DATE OF ORDER: 4 JUNE 2008

WHERE MADE: HOBART

THE COURT ORDERS THAT:

1. The applicant's application for an extension of time within which to file an application for leave to appeal from the judgment of Heerey J of 1 April 2008 is dismissed. 2. The applicant pay the respondent's costs of the matter. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY TAD 15 2008

BETWEEN: ADRIAN CLAUSEN

Applicant

AND: SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

JUDGE: MARSHALL J

DATE: 4 JUNE 2008

PLACE: HOBART

REASONS FOR JUDGMENT 1 Mr Adrian Clausen applies for an extension of time in which to seek leave to appeal from an interlocutory judgment of Heerey J published on 1 April 2008. His Honour dismissed Mr Clausen's application for an extension of the time for the filing and serving of a notice of appeal from a decision of the Administrative Appeals Tribunal. 2 The Tribunal had affirmed decisions of Centrelink which cancelled Mr Clausen's disability support pension on 8 January 2005 and 6 June 2005 respectively. 3 Mr Clausen had been in receipt of a disability support pension from the Commonwealth. Under s 1217 of the Social Security Act 1991 (Cth), a recipient of such a pension is entitled to be absent from Australia for a period of 13 weeks before losing an entitlement to the pension. Mr Clausen was absent from Australia, whilst in South Africa, from 12 August 2004 to 26 February 2005 and, again, from 8 March 2005 to 6 June 2005. 4 Under s 1218C of the Act, the respondent Secretary of the Department of Education, Employment and Workplace Relations is empowered to extend that 13 week period if satisfied of any of the circumstances set out in s 1218C (1). One of those circumstances is that a robbery or a serious crime has been committed against the recipient of the pension. Another is that a recipient is required to remain outside Australia in connection with criminal proceedings, not including those concerning a crime committed by the recipient. 5 Mr Clausen contended before the Tribunal that the two circumstances above applied to him. The Tribunal found that no robbery or serious crime was committed against Mr Clausen whilst in South Africa at the times referred to at [3] above. Heerey J observed at [3] of his judgment: That is plainly a finding of fact and an appeal to this court lies only on a question of law. 6 His Honour refused the application for an extension of time because he considered the proposed appeal to be unarguable. 7 Mr Clausen filed his application for leave to appeal from the judgment of Heerey J in mid May 2008. As the judgment below was interlocutory an application for leave to appeal should have been filed by 8 April 2008. Given the fact that Mr Clausen now resides in Perth and represents himself, the relatively short delay in filing the application should not, of itself, act as a bar to his application for leave being dealt with. 8 The issue of whether leave to appeal should be granted is an entirely different question, which in turn raises the utility of granting an extension of time. 9 Mr Clausen has not filed any draft notice of appeal. He has not demonstrated any appellable error in the judgment of Heerey J. Like Heerey J, I consider that the proposed appeal from the Tribunal is bound to fail because it has no prospect of success. No question of law arising in the appeal has been identified by Mr Clausen. Under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), appeals lie to this Court from the Tribunal only on questions of law. 10 As Mr Clausen has not raised any arguable error of law in the decision of the Tribunal it would be futile to allow him leave to appeal from the judgment below. More importantly it would be pointless to permit him to appeal from Heerey J's judgment when no arguable basis has been made out for the contention that that judgment contains any legal error. That judgment is not attended with any doubt. The denial of leave would not result in substantial injustice; see Decor Corporation Pty Ltd v Dart Industries (1991) 33 FCR 397 at 398-399. 11 Given that leave to appeal must be refused, no useful purpose would be served by permitting an extension of the time allowed to Mr Clausen within which to file his application for that leave. 12 The Court orders: 1. The applicant's application for an extension of time within which to file an application for leave to appeal from the judgment of Heerey J of 1 April 2008 is dismissed. 2. The applicant pay the respondent's costs of the application. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.