El Mouttie v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 699 (30 June 2010)

Last Updated: 6 July 2010

FEDERAL COURT OF AUSTRALIA

El Mouttie v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 699

Citation:		El Mouttie v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 699
Parties:		SOPHIE EL MOUTTIE v SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
File number(s):		VID 846 of 2009
Judge:		TRACEY J
Date of judgment:		30 June 2010
Legislation:		Administrative Appeals Tribunal Act 1975 (Cth) s 44 Federal Court of Australia Act 1976 (Cth) s 31A
Cases cited:		Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232; (2003) 38 AAR 55, referred to TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; (1988) 19 ATR 1067, cited
Date of hearing:	30 June 2010
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	16
	The Appellant appeared in person
Counsel for the Respondent:	Ms S Koya
Solicitor for the Respondent:	DLA Phillips Fox

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 846 of 2009

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	SOPHIE EL MOUTTIE Appellant
AND:	SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	30 JUNE 2010
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The Administrative Appeals Tribunal be removed as a party to the purported appeal.
2. The purported appeal be dismissed.
3. The Appellant pay the Secretary, Department of Education, Employment and Workplace Relations’ costs of the purported appeal, including the costs of the Secretary’s notice of motion filed on 3 May 2010.
   

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 846 of 2009

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	SOPHIE EL MOUTTIE Appellant
AND:	SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Respondent

JUDGE:	TRACEY J
DATE:	30 JUNE 2010
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The Appellant, Ms Sophie El Mouttie, received a Parenting Payment at the single rate from 7 November 2003. Payments were made by Centrelink.
2. Between 4 June 2004 and 14 July 2005 Ms El Mouttie was overpaid her entitlement because she was receiving earnings from employment. There is a dispute which was resolved unfavourably to Ms El Mouttie as to whether or not Centrelink was advised of those earnings during that period of some 13 and a half months.
3. In about April 2008 Centrelink became aware that Ms El Mouttie had been employed by two employers in the period between 15 June 2004 and 17 June 2005. On 16 May 2008, having examined the employers’ records, Centrelink calculated that Ms El Mouttie had been over paid $12,920.46 between 15 June 2004 and 17 June 2005. It raised this amount as a debt due to the Commonwealth. In addition, Centrelink imposed a recovery fee of 10 per cent of that amount which meant that the total sum being sought by it from Ms El Mouttie was $14,212.46.
4. Ms El Mouttie sought a review of this decision by an authorised Departmental review officer. The authorised review officer considered her case and determined that the sum sought should be recovered. On 21 November 2008 Ms El Mouttie exercised her right of appeal to the Social Security Appeals Tribunal. By a decision made on 16 February 2009, following a hearing at which Ms El Mouttie gave evidence and made submissions, the Tribunal determined to affirm the decision under review.
5. Ms El Mouttie then exercised her further right to appeal to the Administrative Appeals Tribunal against the decision of the Social Security Appeals Tribunal. On 25 October 2009 a hearing was conducted before a senior member of the Administrative Appeals Tribunal. Ms El Mouttie did not attend. The Tribunal affirmed the decision under review, having conducted a de novo examination of the documentary material that was before it.
6. A copy of that decision was forwarded to Ms El Mouttie by post. She received it on 30 October 2009. On 25 November 2009 she lodged a notice of appeal against the Tribunal's decision, in this Court.
7. The notice of appeal named the Tribunal as the Respondent. The parties to an appeal in this Court, from a decision of the Tribunal, should be the Appellant who is seeking to challenge the Tribunal's decision, and the other party or parties who appeared at the Tribunal. As a result the title of the proceeding in this Court should be amended so as to remove the Administrative Appeals Tribunal as a Respondent. The appropriate Respondent who in fact has appeared is the Secretary of the Department of Education, Employment and Workplace Relations.
8. The notice of appeal required the Appellant to identify the questions of law which are raised on the appeal. In her notice of appeal, Ms El Mouttie said that the question of law that was raised was: “was the money paid to me?”
9. The proceeding first came on in this court for directions on 4 December 2009 when it was adjourned to a date to be fixed. It was fixed for hearing on 9 April 2010 but a consent order was filed further adjourning the matter until this morning. In the meantime, correspondence passed between solicitors acting for the Secretary and Ms El Mouttie in which she was advised that the notice of appeal did not contain any relevant question of law and that, accordingly, the Secretary would move the court for the proceeding to be dismissed pursuant to section 31A of the Federal Court of Australia Act 1976 (Cth). Such a notice of motion was filed on 3 May 2010 and was returnable this morning.
10. Section 44(1) of the Administrative Appeals Tribunal Act 1975 provides that:
    

“A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.”

In TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1067 at 1070, Gummow J, when a member of this court said that:

“Section 44 of the AAT Act is expressed in narrower terms than the old section 196 of the Tax Act. This provided for appeals from the Board of Review which “involved” a question of law. The result was that if some question of law was involved, the whole of the decision of the Board was open to review, not merely the question of law...This no longer will be the case with appeals brought to this court under s 44 of the AAT Act. The existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself.” (Emphasis added)

11. Subsequently a Full Court of this Court in Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232; (2003) 38 AAR 55 at 60 held that the question of law contemplated by s 44(1) of the Act must be what was described as a pure question of law in order to found the jurisdiction of this court under s 44.
12. The hearing this morning provided Ms El Mouttie with the opportunity of making such submissions as she wished in opposition to the summary dismissal motion of which, as I have already mentioned, she had prior notice. She told the court that she accepted that she had acted wrongly by not advising Centrelink of certain earnings received by her and was prepared to make repayments of the monies to which, she acknowledges, she was not entitled and to pay interest. She is not, however, prepared to make the full payment which is sought by the Secretary. She challenges the extent of her liability as found by both the Social Security Appeals Tribunal and the Administrative Appeals Tribunal.
13. She maintained that she did inform Centrelink of her earnings but that, without being asked to do so, Centrelink continued to make payment of the benefit. She says that she did not request that those payments should be made and that she did not notice that they were being made to her bank account for over a year. She gave evidence to that effect and made submissions in support of that position before the Social Security Appeals Tribunal. The Social Security Appeals Tribunal did not accept that evidence. She did not seek to adduce that evidence before the Administrative Appeals Tribunal. Plainly the dispute between Ms El Mouttie and the Secretary turns on a question of fact.
    
14. On the facts found by the Administrative Appeals Tribunal, the conclusion to which it came, namely that Ms El Mouttie has a liability to make the payment sought by the Secretary, was inevitable. More importantly for present purposes, the issue in dispute, being one of fact, is not and cannot constitute a question of law for the purposes of s 44 of the Administrative Appeals Tribunal Act. Accordingly, the Court lacks jurisdiction to entertain the purported appeal.
15. Pursuant to s 31A of the Federal Court of Australia Act, the court may give judgment for one party against another in relation to the whole of the proceeding, if the Court is satisfied that that party has no reasonable prospect of successfully prosecuting the proceeding.
16. For the reasons I have given, I have concluded that Ms El Mouttie has no reasonable prospect of successfully prosecuting her purported appeal, and accordingly, judgment should be given for the Secretary. Ms El Mouttie should pay the Secretary’s costs of the appeal including the costs of the notice of motion.
    

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated: 30 June 2010