Wang v Minister, Department of Employment and Workplace Relations [2007] FCAFC 17 (22 February 2007)

Last Updated: 27 February 2007

FEDERAL COURT OF AUSTRALIA

Wang v Minister, Department of Employment and Workplace Relations [2007] FCAFC 17

PRACTICE AND PROCEDURE – jurisdiction of Federal Court – whether Court had jurisdiction over any matter raised

Held: Jurisdiction of Federal Court derives from statutes expressly conferring jurisdiction. No statute referred to by appellants conferred jurisdiction.

Federal Court of Australia Act 1976 (Cth), ss 19, 32
Judiciary Act 1903 (Cth), s 39B
Social Security Act 1991 (Cth), s 142
Privacy Act 1988 (Cth), ss 61, 98

Scott v Secretary, Department of Social Security [2000] FCA 1241; (2000) 65 ALD 79 applied
Scott v Pedler (2004) 70 ALD 21 cited
Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 cited
Re Luck [2003] HCA 70; (2003) 203 ALR 1 referred to
NAGM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 395 considered
Licul v Corney [1976] HCA 6; (1976) 180 CLR 213 at 225 cited
















NAN WANG AND QIAN XIAO v SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
VID 879 OF 2006

SUNDBERG, DOWSETT AND BENNETT JJ
22 FEBRUARY 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 879 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NAN WANG First Appellant QIAN XIAO Second Appellant
AND:	SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Respondent

JUDGES:	SUNDBERG, DOWSETT AND BENNETT JJ
DATE OF ORDER:	22 FEBRUARY 2007
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellants pay the respondent’s costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 879 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NAN WANG First Appellant QIAN XIAO Second Appellant
AND:	SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Respondent

JUDGES:	SUNDBERG, DOWSETT AND BENNETT JJ
DATE:	22 FEBRUARY 2007
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

BACKGROUND

1 This appeal arises out of the termination of employment of the appellants, Mr Wang and Mrs Xiao, and their subsequent dealings with Centrelink seeking social security payments. For reasons that will become apparent, it is only necessary to go very briefly into factual and procedural background matters. These matters are dealt with in greater detail in [4]–[46] of the reasons of the primary judge.

2 The appellants worked for Demos Property Services (Australia) Pty Ltd which terminated their employment in 2003. They claimed relief in the Australian Industrial Relations Commission and were partially successful before a single Commissioner. They then appealed to the Full Bench of the Commission which remitted the matter to the single Commissioner who made substantially similar orders.

3 The appellants then sought an order to show cause in the High Court, which was remitted to a Full Court of this Court. That application was dismissed by the Full Court. When the primary judge delivered judgment in this proceeding, an application for special leave to the High Court was extant. However the primary judge satisfied himself that the matters the subject of the application for special leave were entirely different from those raised in this proceeding and accordingly proceeded to determine it. The High Court has since dismissed the application for special leave.

4 The present proceeding was commenced in this Court. The only respondent is the Secretary of the Department of Employment and Workplace Relations, who has the general administration of social security law. It is not an appeal from the Administrative Appeals Tribunal. It is primarily concerned with matters relating to the appellants’ dealings with Centrelink although, as will become apparent, in their notice of appeal the appellants have sought to re-open some matters relating to the termination of their employment.

5 The matters alleged against Centrelink (and to a certain extent against the former employer) can be broadly divided into:

• allegations of criminal conduct, essentially fraud and conspiracy, and
• allegations of conduct giving rise to private causes of action under Commonwealth legislation.

The details of these allegations are largely irrelevant in light of the conclusions we have reached.

THE PRIMARY JUDGE’S DECISION

6 Although the primary judge set out in some detail the appellants’ claims, he was ultimately able to dispose of the proceeding very briefly. That is because he accepted the contention of the respondent that the Court lacked jurisdiction to entertain any of the appellants’ claims. His Honour noted that the appellants had submitted that the Federal Court has general jurisdiction in matters involving federal statutes, subject only to express legislative restriction, and that this submission was fundamentally wrong.

7 His conclusion on jurisdiction was as follows:

"[48] The claims of the applicants are not within the jurisdiction of the Federal Court. The Court does not have jurisdiction to try criminal offences such as fraud and conspiracy. Breaches of the Social Security Act do not confer private rights for damages: Scott v Secretary Department of Social Security [2000] FCA 1241; (2000) 65 ALD 79 at [24], Scott v Pedler [2004] FCAFC 67 at [1], [53], [93], [102-103] and [106]. Nor is there any duty of care owed: Scott v Pedler. The Federal Court does not have a jurisdiction of general oversight of the administrative efficiency of federal government entities.

[49] Because there is no jurisdiction for this Court to deal with various claims made it is not appropriate to consider whether any reasonable causes of action are raised. Such an exercise would amount to exercising a jurisdiction which the Court does not have."

THE GROUNDS OF APPEAL

8 There are 20 grounds of appeal. It is convenient to deal with them in groups as many of them deal with similar issues.

Termination of appellants’ employment

9 Grounds 2 and 3 relate to the termination of the appellants’ employment. They allege that the employer made false statements on the appellants’ Employment Separation Certificates for the purpose of defaming them, and to the Australian Industrial Relations Commission about their final working day and average daily hours. These matters are entirely irrelevant to this proceeding which is only brought against the Secretary.

Dismissal proceeding

10 Grounds 4 to 7 and 12 relate to the dismissal proceeding which was determined by the Full Court. The appellants allege that the Full Court ignored several serious criminal offences and relied on earlier decisions for its findings of fact. Ground 12 notes that the primary judge stated that he did not have power to deal with matters relating to the Full Court proceeding. These grounds are also irrelevant to a proceeding brought only against the Secretary. The primary judge correctly said that the Court has no power to interfere with the orders of an earlier Full Court. Any errors made by the Full Court are a matter for special leave to appeal to the High Court, an avenue which has now been exhausted.

Jurisdiction of Federal Court

11 Grounds 9 to 11 and 15 to 19 relate to the jurisdiction issue. Grounds 9 to 11, 16 and 19 essentially complain that the primary judge failed to deal with the appellants’ allegations. Ground 9 alleges that the primary judge failed to "take any action" or "comment or express opinion on the criminal acts", despite comprehensive evidence. Ground 10 alleges that Centrelink conspired with various other parties, including the former employer, to defraud and persecute the appellants. Ground 11 alleges that Centrelink has made false and inappropriate statements; based its decision on false information submitted from other sources knowing that information to be conflicting and disputed; and did not take action against the parties who made the false statements. Ground 16 makes further allegations against Centrelink, including breaches of its statutory duties, declining standards of service and serious criminal acts. It alleges that the primary judge "blindly ignored" these allegations. Ground 19 alleges that the primary judge failed to exercise powers under ss 19 and 32 of the Federal Court Act 1976 (Cth).

12 Grounds 15, 17 and 18 allege, in effect, that the primary judge erred in finding that he had no jurisdiction to deal with the appellants’ allegations. It is worth setting out these grounds in full and uncorrected:

"15. The Federal Court of Australia Act states:

‘The Court has such original jurisdiction as is vested in it by laws made by the Parliament." [Part III, Division 1, s 19(1)]
This matter involved such commonwealth legislations including:
Social Security Act 1991;
Social Security (Administration) Act 1999;
Criminal Law Act 1977 and
Privacy Act 1998.
His Honour Justice Heerey dismissed the application in a manner that was unjust, unlawful and unfair with little legal standing.

...

17. His Honour Justice Heerey wrongly relied on authorities of Scott v Secretary, Department of Social Security [2000] FCA 1241; (2000) 65 ALD 79; and Scott v Pedler [2004] FCAFC 67. His Honour failed to recognise the respondent’s breaches and failures in its statutory duty, but instead irrelevantly stated that there was no duty of care owned, and ‘Breaches of Social Security Act do not confer private rights for damages’. The appellants’ lost social security payments entitled to him under the Social Security Act is not the same as damages from breaches in the Social Security Act. His Honour’s decision was absurd and irrational.

18. In this matter, the Court’s accrued jurisdiction [in accordance with s 32 of the Federal Court Act] should be exercised, in conjunction with the Court’s original jurisdiction arose from the respondent’s breaches of its statutory duty. The Hon Justice Heerey failed to do so, firstly his Honour failed to identify the respondent’s breaches in statutory duty, and secondly his Honour failed to consider or mention the Court’s accrued jurisdiction, for which would have been otherwise exercised."

In their written submission the appellants expressly disclaimed any argument based on a duty of care being owed to them by the respondent.

13 These submissions, to the extent that they make sense, demonstrate a fundamental misunderstanding of the nature of this Court’s jurisdiction and the operation of administrative law. The primary judge recorded the appellants’ submission that the Federal Court has jurisdiction in all matters arising under Commonwealth legislation unless legislation specifically restricted its jurisdiction, and correctly rejected it as fundamentally wrong. The Federal Court, unlike the superior courts of the states, is not a court of unlimited jurisdiction. Its jurisdiction derives exclusively from express conferral by statutes of the federal parliament or from the accrued jurisdiction attached thereto. Part III of the Federal Court Act, which concerns jurisdiction, confers two types of jurisdiction: original and appellate. Original jurisdiction is, by s 19, "such original jurisdiction as is vested in [the Court] by laws made by the Parliament". Section 39B(1A)(c) of the Judiciary Act 1903 (Cth) is to the same general effect, conferring jurisdiction in "any matter arising under any laws made by the Parliament". Appellate jurisdiction is conferred both by s 24(1) of the Federal Court Act and by provisions of other statutes, such as the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

14 The Commonwealth administrative law regime frequently allows for review of administrative decisions, such as those involving social security payments. The usual position is that once all avenues of internal review have been exhausted, an aggrieved person may seek merits review from an appropriate tribunal. In the case of matters arising under the Social Security Act 1991 (Cth), that tribunal is the Social Security Appeals Tribunal (‘SSAT’). Section 142 gives a right of appeal to the SSAT to any person whose interests have been affected by a decision of the Secretary made pursuant to internal review procedures. There is no provision allowing for an appeal from the SSAT to this Court. An appeal may end up in this Court, but only under Part IVA of the AAT Act, once an appeal has been brought from the SSAT to the Administrative Appeals Tribunal. It is apparent from the reasons of the primary judge and the appellants’ submissions that the appellants have sought redress in each of the SSAT and the Administrative Appeals Tribunal, however this proceeding does not arise by way of appeal, or purported appeal, from either tribunal.

15 One Commonwealth Act that the appellants allege has been breached by the respondent is the Privacy Act 1988 (Cth). This Act contains, in Part V, provisions for the Privacy Commissioner to investigate conduct alleged to be in breach of the Act or of a code approved in accordance with the Act. Only once an investigation has been undertaken is jurisdiction conferred on this Court to:

• enforce determinations of the Privacy Commissioner, under Division 3 of Part V, and
• enforce certain obligations of Commonwealth agencies and their officers, under Division 4 of Part V.

The general jurisdiction to review decisions of the Privacy Commissioner is given to the Administrative Appeals Tribunal by s 61 of the Privacy Act. The Court is also given jurisdiction by s 98 to grant injunctions to prevent breaches of the Act. There is no provision of the Privacy Act that gives the Court jurisdiction in this proceeding. None of the complaints made by the appellants is a "matter arising under" that Act for the purposes of s 39B(1A)(c) of the Judiciary Act. Nor does the Privacy Act, for the purposes of s 19 of the Federal Court Act, vest original jurisdiction in the Court to entertain any of those complaints. The fact that the Privacy Act confers jurisdiction on the Court in some other matters not affecting the appellants is neither here nor there.

16 The final Commonwealth Act specifically referred to by the appellants is the Criminal Law Act 1977. We have never heard of this Act. If the appellants intend to refer to the Crimes Act 1914 (Cth) or the Criminal Code Act 1995 (Cth), we observe that neither statute confers jurisdiction on this Court.

17 Ground 17 alleges that the primary judge wrongly relied on Scott v Secretary, Department of Social Security [2000] FCA 1241; (2000) 65 ALD 79 and Scott v Pedler (2004) 70 ALD 21. It will be recalled that the primary judge relied on these decisions as authority for the proposition that the Social Security Act does not confer private rights for damages.

18 In Scott v Secretary, Department of Social Security, Beaumont and French JJ at 65 ALD [17] set out the passage from the judgment of Brennan CJ, Dawson and Toohey JJ in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 424 that a private right to damages for breach of a statutory duty arises where the legislation in question, which imposes an obligation for the protection or benefit of a particular class of persons:

"is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection."

Their Honours concluded at 65 ALD [19] that:

"We agree with the trial judge that the [Social Security] Act is not to be interpreted as indicating an intention to confer a private right of action for a breach of any of its provisions".

19 The primary judge was bound to follow Scott v Secretary. Gray J was also bound to follow it, and did, in Scott v Pedler 70 ALD 21 at 24–5. It has not been argued before us that this Full Court should depart from it, and at any rate we would not do so because we are not satisfied it is plainly wrong.

Other grounds of appeal

20 Ground 1 is as follows:

"The Hon Justice Heerey wasted valuable time by referring this matter for legal advice. The delays were unfair and unjust, biasing towards the respondent."

The basis for this complaint is that the primary judge adjourned the matter so as to enable the appellants to seek legal advice. Accordingly, the incident delay cannot be described as unfair, unjust or as giving rise to an apprehension of bias. In any event, in the absence of particulars of these complaints, we are unable to deal with this ground of appeal, which must be dismissed.

21 Ground 13 complains that "facts were not found before a determination was made" and that the primary judge "failed to apply the relevant law to the facts, before coming to his Honour’s conclusion." The reasons why this ground must fail are apparent from what we have already said. The primary judge had no jurisdiction to hear the case, including the making of findings of fact. Equally, he had no jurisdiction to apply the law the appellants sought to have applied. The only relevant factual matter was that the appellants had commenced a proceeding and the only law that could be applied to that matter was that the Court had no jurisdiction to hear it. In the course of oral argument the primary judge’s refusal to make findings as to the facts was said to constitute bias on his part. This complaint has no substance. A correct application of the law as to the extent of the Court’s jurisdiction cannot amount to a denial of natural justice.

FINAL MATTERS

22 In the course of considering this appeal we have had regard to the possibility that the appellants’ applications might be treated as applications for constitutional writs or some other form of judicial review. However we have concluded that for two reasons it would be inappropriate for the Court to proceed in that way. First, the relief claimed by the appellants would not generally be available in such proceedings. Secondly, the appellants’ concerns arise out of specific claims to benefits. The decisions concerning such claims have been subjected to merits review pursuant to statute. There is no reason to believe that the appellants’ complaints could not have been addressed adequately in those review proceedings.

23 We have thus far treated the appellants as appealing as of right. The respondent, however, contends that the primary judge’s order was interlocutory, so that the appellants require leave to appeal. The motion by which the respondent sought the dismissal of the proceeding did so on the basis that the Court had no jurisdiction to hear and determine it, alternatively on the ground that it disclosed no reasonable cause of action. His Honour dismissed the proceeding on the ground that there was no jurisdiction to entertain it, and said that it was therefore inappropriate to consider whether any reasonable causes of action were raised.

24 In Re Luck [2003] HCA 70; (2003) 203 ALR 1 at [9] the High Court said:

"An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of process of the court or does not disclose a reasonable cause of action."

Accordingly, had the primary judge dismissed the proceeding on the basis that it disclosed no reasonable cause of action, the order would be interlocutory. However, he did not do that.

25 NAGM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 395 provides support for the view that an order dismissing a proceeding for want of jurisdiction is interlocutory, at least when it does not finally dispose of the rights of the parties. See also Licul v Corney [1976] HCA 6; (1976) 180 CLR 213 at 225. In the present case the primary judge did not finally decide the rights of the parties. Indeed his Honour expressly declined to decide what the appellants claimed were their rights against the respondent because he held he had no power to do so. However, this is not the appropriate case in which to decide whether his Honour’s order was final or interlocutory, because only the respondent was in a position to make submissions on the matter.

26 In the circumstances we will treat the order as a final order and will dismiss the appeal. If, however, the order is interlocutory, we would treat the notice of appeal as an application for leave to appeal, but would not grant the required extension of time to make it because, for the reasons we have given, an appeal would be futile. That was the course followed by the Full Court in NAGM.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sundberg, Dowsett and Bennett.

Associate:

Dated: 22 February 2007

The appellants appeared in person.

Counsel for the Respondent:	R Knowles
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 February 2007
Date of Judgment:	22 February 2007