Vatarescu v Commonwealth of Australia for the Agency of Centrelink [2009] FCA 1539 (14 December 2009)

Last Updated: 22 December 2009

FEDERAL COURT OF AUSTRALIA

Vatarescu v Commonwealth of Australia for the Agency of Centrelink

[2009] FCA 1539

ANDREI VATARESCU v THE COMMONWEALTH OF AUSTRALIA FOR THE AGENCY OF CENTRELINK
ACD 45 of 2009

STONE J
14 DECEMBER 2009
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 45 of 2009

BETWEEN:	ANDREI VATARESCU Applicant
AND:	THE COMMONWEALTH OF AUSTRALIA FOR THE AGENCY OF CENTRELINK Respondent

JUDGE:	STONE J
DATE OF ORDER:	14 DECEMBER 2009
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.
2. The applicant pay the respondent’s costs of the application.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 45 of 2009

BETWEEN:	ANDREI VATARESCU Applicant
AND:	THE COMMONWEALTH OF AUSTRALIA FOR THE AGENCY OF CENTRELINK Respondent

JUDGE:	STONE J
DATE:	14 DECEMBER 2009
PLACE:	CANBERRA

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from the summary dismissal of an application by a Federal Magistrate; Vatarescu v Commonwealth of Australia for the Agency of Centrelink [2009] FMCA 1041. The proceeding before his Honour concerned a dispute between Mr Vatarescu and the respondent, Centrelink, as to his qualifications for the grant of the Newstart allowance. The relevant statutory provisions are accurately summarised in the submissions of the respondent, made in writing before the Federal Magistrate, and to which my attention has been drawn.
2. Under the Social Security Act 1991 (Cth), at the relevant time, applicants qualified for the Newstart allowance if they were unemployed, satisfied the activity test and entered into and complied with a Newstart activity agreement. Persons satisfy the activity test if they are actively seeking and willing to undertake paid work and comply with the terms of a Newstart activity agreement. If a person failed to comply with the terms of the Newstart activity agreement, they could not be taken to satisfy the activity test.
3. As discussed at the hearing before me this morning, the guidelines for the grant of the Newstart allowance are laid down under the Social Security Act but, as is clear, both from their title as “guidelines” and from the wording of the guidelines themselves, they give the Minister, and through the Minister the delegate of the Minister, considerable discretion as to how they are to be implemented.
4. It would appear that the applicant is a highly qualified man. His qualifications are as a physicist and, perhaps with good reason, he regarded the requirements of the activity agreement presented to him as incompatible with his qualifications. In his view the agreement did not assist him to obtain work and did not improve his prospects of obtaining work in the future. He strongly asserts that it is a waste of public resources to require him to pursue activities he regards as futile. He goes so far as to refer to it as “fraud” although as his Honour pointed out at [7], his use of the term fraud should be understood in its more generic sense rather than in its technical legal sense.
5. The application in the Federal Magistrates Court was initially filed on 9 April 2009. That application was clearly inadequate. It referred to the applicant’s request to be compensated for loss of entitlements and stated, as grounds of the application:

In a remarkable example of twisted logic, the Centrelink decision does not disprove the incompetence and ignorance demonstrated by the job network service provider, but blames the customer for the shortcomings and failures resulting from the non-implementation of the Job Network legislation and its guidelines.

6. The applicant was given an opportunity to file an amended application, which he did on 18 May 2009. In that application, he stated that he was aggrieved by the decisions and conduct of Centrelink which required him to engage in futile activities benefiting only the job network service provider. In the grounds of that application, he again made some of the statements to which I have already referred.
7. Attached to that application was a letter of 17 March 2009, which the applicant had sent to Centrelink pointing out what he referred to as the “incorrigible incompetence” of the Centrelink Participation Unit. These comments were accompanied by quotations from the guidelines, together with commentary as to the basis on which he felt those guidelines had not been complied with.
8. Pursuant to an order made by the Federal Magistrate Centrelink responded to the applicant’s letter. Its response consisted of a bland description of the way in which Centrelink discharged its statutory obligations and, not surprisingly, it did not satisfy the applicant.
9. When the matter came on for hearing before the Federal Magistrate on 12 October 2009 Centrelink sought an order for summary dismissal of the proceeding on the basis that no legal question had been identified. His Honour agreed with Centrelink and said, at [26]-[27]:

In my view, at their highest, the facts and circumstances of the case are significantly nebulous and disclose no circumstance or basis, in law, for judicial intervention. Dr Vatarescu may, morally or politically, have some cause for complaint. However, given the broad policy and practical day to day discretion that is open to those responsible for administering the Job Network Scheme, and in the absence of specific evidence of any particular decision and relevant evidence, I cannot see any legal basis upon which he can obtain redress.

Accordingly, having regard to (a) the facts of this case (b) the state of the pleadings, (c) the late stage of the litigation and (d) the various opportunities extended to Dr Vatarescu to particularise or clarify the grounds upon which he seeks relief, it seems to me that there is no reasonable prospect of his action or proceeding succeeding.

10. His Honour therefore dismissed the application with costs. Earlier in his reasons, his Honour had referred to the question of the legal review of guidelines and commented on the very significant level of discretion exercised by decision-makers. He said:

In the absence of some legal error that decision and the discretion exercised in making it, will be interfered with by a court only in circumstances where a clear legal basis to do so is established. The legal basis for intervention is restricted to errors of law; review of the merits of a decision is not permitted.

11. At the heart of this matter it would seem is perhaps a lack of understanding by the applicant of the distinction between failure to exercise a discretion and exercising a discretion, as he would see it, incompetently or badly. The applicant’s complaints about Centrelink are based on a strong disagreement with the way in which Centrelink has proceeded to deal with his application. This much is clear from the grounds of the application listed in the initial application of 9 April 2009 where the applicant refers to the incompetence and ignorance demonstrated by the Job Network Service provider.
12. On the material that is before me I think that the highest that the matter could be put is that, if the applicant is correct, as to which I make no assessment, Centrelink has exercised its powers and its discretion in a less than competent way. There is, however, nothing in the material that would suggest to me that a legal error has been or could be identified. For that reason I see no prospect that an appeal from his Honour’s decision would succeed and therefore it would be futile for leave to appeal to be granted. For those reason, the application for leave to appeal is dismissed. The applicant must bear 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 Stone.

Associate:

Dated: 22 December 2009

Applicant:	Appears in person
Counsel for the Respondent:	D O'Donovan
Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	14 December 2009
Date of Judgment:	14 December 2009