FEDERAL COURT OF AUSTRALIA Ellis v Secretary, Department of Social Services [2016] FCA 1469 Appeal from: Troy Ellis and Secretary, Department of Social Services [2016] AATA 490 File number: WAD 345 of 2016 Judge: BARKER J Date of judgment: 30 November 2016 Catchwords: ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal (Tribunal) under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – where Tribunal affirmed decision to cancel mobility allowance – whether grounds of appeal stated question or questions of law – whether Tribunal failed to take into account relevant consideration – whether Tribunal demonstrated bias Legislation: Federal Court Rules 2011 (Cth) R 33.12(2) Social Security Act 1991 (Cth) ss 19, 1035(1), 1035(1)(a)(ii), 1035(1)(b)(ii), 1035(1)(f)(ii), 1035(1)(g)(iii), 1035(1)(h), 1035(2) Social Security (Administration) Act 1999 (Cth) Cases cited: Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 Date of hearing: 30 November 2016 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 13 Counsel for the Applicant: The Applicant did not appear Counsel for the Respondent: Mr A Burgess Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS WAD 345 of 2016 BETWEEN: TROY ELLIS Applicant AND: SECRETARY, DEPARTMENT OF SOCIAL SERVICES Respondent JUDGE: BARKER J DATE OF ORDER: 30 NOVEMBER 2016 THE COURT ORDERS THAT: 1. The application be dismissed 2. The applicant pay the respondent's costs in the proceeding, fixed in the sum of $5000. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BARKER J: 1 These reasons are a slightly edited version of the ex tempore reasons delivered orally at the hearing of this matter on Wednesday 30 November 2016, when the proceeding was dismissed with costs. 2 Before the Court is a notice of appeal from a tribunal in which Mr Troy Ellis (applicant) has applied to challenge a decision made by a Deputy President of the Administrative Appeals Tribunal (AAT) on 13 July 2016 in Perth. In an appeal against an AAT decision an applicant is required by R 33.12(2) of the Federal Court Rules 2011 (Cth) to state a question of law as well as specify orders sought and grounds relied upon in the application. 3 In this case, the applicant was plainly dissatisfied with a decision made by Centrelink concerning a Centrelink mobility allowance he believed he was entitled to. He set out in his notice some nine paragraphs under the heading "Questions of law", as well as "Findings of fact …", "Orders sought", and "Grounds relied upon", as follows: Questions of law 1. Incompetence, cruelty, coverup and a colluding conspiracy of COMMUNICARE and CENTRELINK to take away elements of welfare rights enjoyed by other DISABLED PERSONS on a DISABILITY PENSION and a MOBILITY ALLOWANCE. 2. Ignored every single point I raised and answered nothing about the competence and conspiracy and corruption of Centrelink staff to protect themselves and their jobs. 3. DISABILITY HATRED and HUMAN RIGHTS ABUSE, by allowing CENTRELINK to ignore facts that it was them and COMMUNICARE that caused delays and ignore the fact that I am a DISABLED PERSON with poor and declining health. 4. Blaming me, the victim of a cover up at CENTRELINK and just keeping the inhumanity and humiliation to go on and on. I have suffered great physical, emotional and financial distress. I have been doing all obligations for the MOBILITY ALLOWANCE, however, due to CENTRELINK acting so deceitful, with the AAT protecting this deceit, I have to go without a scheme I am fully entitled to under the LEGISLATION. 5 CENTRELINK caused a delay, while I was awaiting a new DISABILITY SERVICE PROVIDER and an appointment at the VICTORIA PARK OFFICE, has not enabled me access to services I am entitled to, such as a DISABILITY SERVICE PROVIDER, which caused me to lose and not secure any of these entitlements and not have even before I attended the SSAT or the AAT. 6. BACK PAYMENTS I am entitled to receive when others make mistakes. 7. CENTRELINK sackings that never happened. 8. DISABILITY DISCRIMINATION, DISABILITY HATRED and HUMAN RIGHTS ABUSE, by forced unemployment, poverty and causing me injury, due to physical, emotional and financial collapse. 9. Lack of evidence and proof from the CENTRELINK lawyer or the AAT that CENTRELINK has acted in the law, by causing appointment delays to keep my MOBILITY ALLOWANCE and find a new DISABILITY SERVCIE PROVIDER, then taking away the allowance and refusing to provide a disability service provider, or even giving me an answer of why this happened. Findings of fact that the Court is asked to make 1. Lack of evidence and proof from the CENTRELINK lawyer or the AAT that CENTRELINK has acted in the law, by causing appointment delays to keep my MOBILITY ALLOWANCE and find a new DISABILITY SERVCIE PROVIDER, then taking away the allowance and refusing to provide a disability service provider, or even giving me an answer of why this happened. 2. Lack of evidence and proof of why CENTRELINK allowed a delay of an appointment, while taking my MOBILITY ALLOWANCE off me while I was still entitled to it all. Orders sought 1. BACK PAYMENTS, reinstatement of MOBILITY ALLOWANCE, a DISABILITY SERVICE PROVIDER provided to me, an apology, CENTRELINK staff involved to be sacked and compensation of $100.000 for injury. Grounds relied on 1. There have been deceitful actions and entitlements taken away from me that I am fully allowed as a DISABILITY PENSIONER who is searching for employment and on CENTRELINK DISABILITY PENSION. It is a welfare right I am entitled to as an Australian and a DISABLED PERSON. 4 It is understood, as I have already indicated, that, on an application of this sort, questions of law need to be stated by an applicant. This Court has what might be called, generally, review powers in such cases, but only where there is a question of law raised. This Court, it is well understood, does not act as a further tier of, what is often called, merits review. This Court does not serve the same function as the AAT which, in this case, reviewed the earlier Centrelink decisions concerning the applicant. I am quite satisfied that in these circumstances no question of law has been stated or arises easily out of the matters stated under the questions of law or the grounds relied on or the orders sought categories of the applicant's notice. 5 I should add that, at the initial case management hearing in this matter, the question of stating questions of law was brought to the applicant's attention. It should also be said that he responded in what can only be described as intemperate terms at the time. He engaged in what can only be called a rant against the authorities. He said nothing that indicated any particular questions of law. The authority of the Full Court of this Court in recent times has confirmed the view that I have always held as a single instance judge that, even where a party, particularly a self-represented party, has struggled to state a question of law, if it appears from what they have endeavoured to set out that there may be a lurking question of law, the Court, to do justice, should do its best to identify that question. See Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 at [75]-[77], cited with approval by the Full Court in Haritos v Commissioner of Taxation (2015) 233 FCR 315 at [104]; [2015] FCAFC 92. 6 On this occasion, the Court not only struggles, but really is unable to discover any question of law. It really does seem that the applicant is deeply aggrieved that he did not get his way either with the original decision-maker or the AAT on review and seeks an outlet in this Court for his grievance, but without stating any question of law. The respondent, Secretary, Department of Social Services, has put on submissions in this case which address more substantively the decision that was made by the Tribunal and each of the so-called questions of law and other matters raised in the notice of appeal. I commend the Secretary for doing so. The Secretary, no doubt, acts on the basis that the Secretary is a model litigant and should do all it can to assist the Court in these types of proceedings, as typically does happen. 7 The AAT's decision affirms the Centrelink decision that was under review and I accept the submissions made by the Secretary in this regard. Relevantly, the reasons for decision: Correctly set out the relevant legislative provisions contained in the Social Security Act 1991 (Cth) and the Social Security (Administration) Act 1999 (Cth), at [17] to [20]. Found that the applicant did not satisfy the "travel test" as required by s 1035(2) of the Act, at [31] to [35]. Found that the applicant was a "handicapped person" as defined in s 19 of the Act, and as required by s 1035(1), at [36]. Found that the applicant was unable to use public transport without substantial assistance due to his disability, as required by s 1035(1), at [37] and [38]. Found that the applicant was not engaged in gainful employment, as required by s 1035(1)(a)(ii) and (g)(iii) of the Act, at [39] to [41]. Found that the applicant was not engaged in vocational training, as required by s 1035(1)(b)(ii) and (g)(iii) of the Act, at [42] to [44]. Found that the applicant was not engaged in voluntary work, as required by s 1035(1)(f)(ii) and (g)(iii) of the Act, at [45] to [47]. Found that the applicant was not engaged in vocational rehabilitation program, as required by s 1035(1)(h) of the Act, at [49] to [51]. Found that, as a result of those findings, the applicant was not eligible for a mobility allowance as of 9 December 2014, at [54]. 8 Turning to the questions of law or what the Secretary in the written submissions has simply called "the grounds", I accept the Secretary's submission that no error of law is revealed by these grounds which are quite unparticularised. I also accept the submission made that, to the extent that the applicant cavils with the actions of Centrelink employees or the decisions of decision-makers who came before the AAT, such statements do not reveal any errors of law in the AAT's decision-making. The AAT conducted a hearing de novo and, on the face of it, applied the relevant legislation. To the extent that the applicant claims that errors were made in earlier decisions, they are not the subject of this appeal and the simple position is that no errors are demonstrated in the AAT's decision-making. 9 As to ground 2, it is a similarly unparticularised ground and no error of law is revealed to the extent that the applicant seeks to argue that the AAT failed to take into account a relevant consideration; the argument is not made out on the face of the decision. I also accept the submission made on behalf of the Secretary that the AAT member noted the applicant's criticisms about Centrelink at [29] of the reasons for decision and, as I have noted, the actions of Centrelink employees are not the subject of review in this appeal, neither were they a relevant consideration that the AAT needed to consider in coming to its decision. 10 As to ground 4, I accept the submission that, to the extent the applicant attempts by this allegation to raise an allegation of bias against the AAT, nothing has been offered by way of substantiation of the finding. No error is revealed. 11 In all of those circumstances, looking at the application in the most favourable light, I fail to identify any particular question of law and certainly no question of bias is supported by any materials. There is nothing on the face of the record as it appears before me, and particularly in the reasons for decision of the AAT to suggest that the Deputy President was in any way biased either actually or constructively. In those circumstances, the appeal should be dismissed with costs. 12 So far as costs are concerned, the Secretary asks that the Court not make what is sometimes a usual order, that a party pay the other party's costs to be taxed if not agreed, and instead, for the purposes of efficiency in Court proceedings and, indeed, in saving further delay, expense and cost, make a fixed costs order. To that end, the respondent relies on the affidavit of Mr Ashley Burgess, solicitor, dated 22 November 2016 in support of the fixed costs application of the respondent. 13 Mr Burgess is a solicitor and employee of the Secretary's solicitors who, indeed, has had the carriage of this matter for some time. Based on the materials set out in that affidavit, I am satisfied that a fixed costs order should be made and that the costs that should reasonably be ordered be in the sum of, rounded off, $5000, being about 75 per cent of the Secretary's professional costs to its lawyers. The total of those costs is $6746.81. Allowing 75 per cent of those costs in the circumstances is reasonable. The nature of the allegations made in the notice of appeal plainly required the Secretary to go to the trouble of outlining in its submissions for the benefit of the Court just what was involved in the hearing in the AAT, so that the Court could properly consider the matters now before it. Orders (1) The application be dismissed (2) The applicant pay the respondent's costs in the proceeding, fixed in the sum of $5000. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate: Dated: 8 December 2016