Messner v Secretary, Department of Employment and Workplace Relations [2007] FCA 58 (7 February 2007)

Last Updated: 8 February 2007

FEDERAL COURT OF AUSTRALIA

Messner v Secretary, Department of Employment and Workplace Relations [2007] FCA 58

HELENE MESSNER v SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

No SAD 139 of 2006






FINN J
7 FEBRUARY 2007
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 139 OF 2006

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER L HASTWELL

BETWEEN:	HELENE MESSNER Appellant
AND:	SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Respondent

JUDGE:	FINN J
DATE OF ORDER:	7 FEBRUARY 2007
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 139 OF 2006

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER L HASTWELL

BETWEEN:	HELENE MESSNER Appellant
AND:	SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Respondent

JUDGE:	FINN J
DATE:	7 FEBRUARY 2007
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 This is a most unfortunate matter. The applicant, Helene Messner, is currently 70 years of age and has not worked for 25 years since she was diagnosed with multiple sclerosis. She has experienced financial hardship; she cannot walk unaided; she has poor vision and cannot see to use a computer. Nonetheless, she has applied herself diligently to study which has given significant meaning to her life, with the prospect therefrom of obtaining employment.

2 In undertaking two prior courses of tertiary study, the one for a Bachelor of Arts at the University of Adelaide, which she undertook between 1988 and 2002, and the other for a Graduate Diploma in Social Sciences (Counselling) ("the Counselling Diploma") at the University of SA in 2002 and 2003, she was a recipient of Pensioner Education Supplement ("PES"). The qualifications to receive PES are prescribed in the Social Security Act 1991 (Cth) ("the Act"). The question that arises in this appeal from a decision of the Administrative Appeals Tribunal rejecting her claimed eligibility for a further award of PES for another course in which she has enrolled, i.e. a Professional Certificate in Arts History ("the Arts History Certificate") is whether the Tribunal properly applied the provisions of Part 2.24A of the Act to Ms Messner.

THE APPLICABLE LEGISLATION AND FACTUAL SETTING

3 As the Tribunal noted, whether a person is qualified for PES depends (inter alia) on whether they satisfy the progress rules set out under the Act. These are contained in ss 1061PI(1) and (2) of the Act. Insofar as presently relevant, they prescribe that a person satisfies the progress rules if "the time already spent by the student on the course, or on one or more other tertiary courses at the same level as that course, does not exceed the allowable study time for that course". Important in this definition is that it applies not only to the course being pursued by the student at the time he or she seeks to satisfy the progress rules, it also includes the time spent on other tertiary courses at the same level as that course. Section 1061PI(8)-(10) of the Act describe what is meant by levels of tertiary courses (there are four) and the types of course that fall within each level.

4 It is common ground that the Counselling Diploma and the Arts History Certificate are Level A courses. Insofar as the Counselling Diploma is concerned, the minimum amount of time needed to complete it for the purposes of s 1061PI(3) (which prescribes the calculation of the "allowable study time" for a course for, amongst others, full-time students) was one year. In undertaking that diploma because of health difficulties she experienced in the second semester of the year 2003 she failed one subject and had to complete her degree in 2004. The Tribunal found she received PES for two years: Reason [27], and has in consequence had the maximum allowable study time for a Level A course. For this reason, the Tribunal found she no longer satisfies the progress rules and that she had reached the allowable time for Level A.

5 So much must be accepted. The issue then that arises in this appeal is whether she satisfies one of the grounds of s 1061PI(7) under which part of a course can be disregarded when assessing allowable study at any given time. The Tribunal considered this matter in the following paragraphs of its reasons:

"30. Section 1061PI(7) sets out the various grounds on which part of a course can be disregarded when assessing allowable study time at any given level. There are two possible provisions to consider, namely:

‘1061PI(7) In determining whether a person has exceeded the allowable study time (for a full-time student or a concessional study-load student), disregard the following:

...

(b) a failed year of study, or a failed part of a year of study, if the failure is because of:

(i) the person’s illness; or

(ii) other circumstances beyond the person’s control;

...

(d) time spent undertaking a course that has been completed but which, because of the person’s illness, the person cannot use in any of the trades or profession to which the course is appropriate;

...’

31. The applicant asserts that she dropped one subject and failed one subject in the second semester of 2003 because she was hospitalised due to deterioration in her health. Her academic transcript from the University of South Australia confirms that she failed one subject in the latter half of 2003 and successfully completed the others. It does not indicate any withdrawals from a subject in that semester. The subject that she failed was worth 4.5 points.

32. At the conclusion of the 2003 academic year the applicant had 9 units of her course to complete which were successfully completed in the second year of the course. She was paid PES throughout that second year.

33. The applicant did not fail a year or a part of a year of study. She failed one subject that had little impact on her progress as she continued to study in the next year as was her plan in any event. The Tribunal is satisfied that it is not the legislative intention to allow a failed single subject to result in part of a year being disregarded. The section appears to be aimed at a complete failure of a semester or whole year due to ill health that results in a person having to prolong their study.

34. Can s 1061PI(7)(d) of the Act apply? In this case, the applicant submitted that after completing her Diploma in Social Science she tried to obtain work, but was unsuccessful in obtaining that work hence the need to keep studying. The applicant suffers from disabilities that are very significant. It is not a specific illness as such that prevents her returning to the workforce. She is also 70 years of age and has been out of the work force for 25 years. Counselling is something that the applicant should be capable of doing. She is intelligent and has had a lot of experience of life both in her former profession as a nurse and mid wife and then as a significantly disabled person for many years.

35. The Tribunal is satisfied that a combination of factors that include, but also go beyond her disability, have prevented her from returning to the workforce. A significant factor being her age and her lack of work force experience for many years. She is of retirement age and on her own admission she was not interviewed for any positions so her disability was not known to any prospective employer to whom she made an application.

36. In the circumstances the Tribunal is satisfied that there is no basis upon which any of the provisions of s 1061PI of the Act can apply."

THE PRESENT APPLICATION

6 Ms Messner’s application was shortly out of time when it was filed. For this reason it was necessary that she apply to extend the time in which to file and serve her appeal. The respondent Secretary opposed the application on the ground that it disclosed no question of law. Ms Messner has represented herself and has obviously experienced considerable difficulties in comprehending what is required to be shown in an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). Having considered the matter myself, I was satisfied that there was an arguable point of construction on the material that was then before me. It related to s 1061PI(7) of the Act set out above. Accordingly I granted the extension of time and gave Ms Messner leave to file and serve an amended application. This she has not been able to. Nonetheless, given that I made plain in my reasons for granting the extension of time what the question of law would be, the respondent Secretary has been content to proceed on the basis that the question has properly been identified and should be heard on its merits. Regrettably Ms Messner’s submissions in the matter do not address the section. They are concerned with explaining her disabilities, the effect these have on her ability to study, her present circumstances and how important to her it is that she obtain the Arts History Certificate if she is to have any prospects of future employment.

7 Having read the helpful submissions of Mr Dube for the respondent Secretary, I am satisfied that the question of construction I anticipated does not truly arise. As I noted earlier in doing her 2003/2004 Graduate Diploma, Ms Messner failed a subject in the second semester of 2003. She also says she discontinued a subject at the same time because of ill health. The consequence of this was that she was obliged to undertake a further semester in completing the diploma. The Tribunal found she was paid PES throughout 2004. The practical effect of this was that even if for some reason one semester of study could be disregarded under subs (7) she would still have exhausted the one year of allowable time for Level A study. For this reason which was not apparent at the time I extended time to file the application, the application must be dismissed.

8 It is appropriate, nonetheless, given the submissions that have been put on, to express a view on the question of construction. It relates to the proper interpretation of the terms "a failed year of study or a failed part of the year of study" in s 1061PI(7)(b) of the Act. The short point is whether to fail a semester subject is to fail "part of a year of study". Though I do not consider the extrinsic material to which the Secretary has referred as casting much light on the question other than to show that subs 7(b) is identical in terms to reg 48(1) of the AUSTUDY Regulations as amended in 1992. Having regard to the fact that the PES Scheme itself is concerned with defining, inter alia, the period of temporal duration of courses, i.e. the allowable study time, and permits discounting or disregard of specified periods of time under subs (7), I am satisfied that the Tribunal in its ultimate conclusion was correct in identifying the concern of subs 7(b) as being with a complete failure of a semester or whole year due to ill health that results in a person having to prolong their study. It does not focus merely on the fact of a failure producing the consequence of a prolongation of a person’s study. This can be the consequence simply of the failure of one subject of a group of semester subjects. The type of failure that is specified is the failure of a whole or a part of a year. Accordingly I do not consider that the Tribunal erred in its interpretation of the subsection.

9 As I foreshadowed at the hearing, I will order that the application be dismissed. I note that the respondent Secretary has in the circumstances declined to seek costs in this matter. I would simply note my appreciation of that course having been taken.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn J.

Associate:

Dated: 7 February 2007

Counsel for the Appellant:	Ms H Messner (in person)
Solicitor for the Appellant:
Counsel for the Respondent:	Mr B Dube
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	30 January 2007
Date of Judgment:	7 February 2007