FEDERAL COURT OF AUSTRALIA Conway v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 1106 Citation: Conway v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 1106 Appeal from: Michael Conway v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 403 Parties: MICHAEL KEVIN CONWAY v SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS File number: VID 703 of 2013 Judge: MARSHALL J Date of judgment: 28 October 2013 Catchwords: ADMINISTRATIVE LAW – appeal from decision of the Administrative Appeals Tribunal – overpayment of disability support pension – whether Tribunal made an error of law – application dismissed. PRACTICE AND PROCEDURE – application for summary judgment – jurisdiction of the Court on appeal – no question of law discernible – substantive application has no prospect of success. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44 Federal Court of Australia Act 1976 (Cth) s 31A(2) Social Security Act 1991 (Cth) ss 1237A, 1237AAD Cases cited: Brown v Repatriation Commission (1985) 7 FCR 302 Kolya v Tax Practitioners Board [2012] FCA 215 Date of hearing: 21 October 2013 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 12 Counsel for the Applicant: The Applicant appeared for himself Counsel for the Respondent: Mr D Brown Solicitor for the Respondent: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 703 of 2013 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: MICHAEL KEVIN CONWAY Applicant AND: SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Respondent JUDGE: MARSHALL J DATE OF ORDER: 28 OCTOBER 2013 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The substantive application is dismissed. 2. The applicant pay the respondent's costs of the substantive application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 703 of 2013 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: MICHAEL KEVIN CONWAY Applicant AND: SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Respondent JUDGE: MARSHALL J DATE: 28 OCTOBER 2013 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant, Mr Conway, appeals under s 44 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") from a decision of the Administrative Appeals Tribunal ("the Tribunal") handed down on 17 June 2013. The Tribunal affirmed a decision of the Social Security Appeals Tribunal ("SSAT") made on 14 February 2012 that the applicant owed a debt to the Commonwealth, arising from overpayments of his disability support pension. 2 The problem had its origins in Centrelink failing to record from 1990 that Mr Conway was receiving superannuation payments. The mistake caused Centrelink to pay Mr Conway more than his entitlement. Mr Conway has little trust in Centrelink as a result of a previous overpayment issue which was not the subject of the Tribunal decision under appeal. 3 Centrelink initially calculated that Mr Conway had been overpaid $30,174.07. After further investigations, Mr Conway's debt was recalculated to $34,221.67 in respect of the period 1 July 1994 to 25 March 2002. This decision was reviewed and subsequently affirmed by an authorised review officer of Centrelink. An unsuccessful review to the SSAT followed. Mr Conway then sought a review of the SSAT decision by the Tribunal. The Tribunal's decision 4 The Tribunal said that there were three issues before it: First, does Mr Conway owe a debt to the Commonwealth? Second, should the Tribunal waive the debt as it arose as the result of an administrative error by Centrelink? Third, should the Tribunal waive the debt due to special circumstances? 5 On the first issue, the Tribunal was satisfied that Mr Conway had incurred a debt of $34,221.67. It was not satisfied that Centrelink's calculations were flawed. 6 On the second issue, the Tribunal found that the debt was not attributable solely to administrative error by the Commonwealth. In so doing, it referred to s 1237A of the Social Security Act 1991 (Cth) ("the Act") which requires waiver if a debt is attributable solely to administrative error made by the Commonwealth. The Tribunal observed at [38] of its reasons for decision that, "…there were also errors on Mr Conway's part in failing to realise that he had to keep Centrelink updated of increases in his income and to tell the agency if the figures it was using to calculate his entitlements were wrong". 7 On the third issue, the Tribunal was not satisfied that special circumstances existed in the context of s 1237AAD of the Act which specifically excludes "financial hardship alone" from being a special circumstance. The appeal 8 Mr Conway's notice of appeal does not state with any precision the question of law which he seeks to raise on this appeal. In the portion of the notice of appeal in which an applicant may insert questions of law, Mr Conway has written "Constitutional law + changing of documents". The ground relied upon was said to be the "Australian Constitution Chapter IV Finance and Trade s 84(a)". No further particulars were provided. Under the heading, "Orders sought", Mr Conway has written, "Reimbursement of lost funds". 9 Notwithstanding that Mr Conway is a self-represented litigant, it is necessary to identify a question of law in order to found this Court's jurisdiction. As the Full Court said in Brown v Repatriation Commission (1985) 7 FCR 302: The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather, it and it alone is the subject matter of the appeal and the ambit of the appeal is confined to it. See also: Kolya v Tax Practitioners Board [2012] FCA 215 per Flick J esp at [6]-[8]. 10 On 16 August 2013, the respondent filed a notice of objection to competency in the proceeding. The respondent complained that the notice of appeal does not raise a question of law and that the questions identified under the heading, "Questions of Law" on the notice of appeal are not questions of law. This is confirmed, the respondent said, by the terms of the ground of appeal relied upon by Mr Conway. 11 Under s 31A(2) of the Federal Court of Australia Act 1976 (Cth), the Court may give summary judgment against an applicant if that party has no reasonable prospect of successfully prosecuting the proceeding. The respondent has applied for summary judgment in this proceeding on the basis that it has no prospect of success as no question of law is raised by it. 12 In response, Mr Conway has filed written submissions. None of those submissions identify any question of law to be determined in the proceeding. Mr Conway disagrees with certain factual findings made by the Tribunal but those matters do not involve questions of law. The Court has no power to entertain a merits rehearing of the case before the Tribunal. Mr Conway referred in his submissions to s 84 of the Constitution without explaining its relevance to his appeal. It has none. Mr Conway's oral submissions failed to identify any question of law relevant to the Tribunal's decision. The application is bound to fail. It should be dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth). Mr Conway must pay the respondent's costs of the proceeding. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 28 October 2013