Druett v Dept of Family & Community Services [2002] FMCA 13 (5 February 2002)

Last Updated: 30 April 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DRUETT v DEPT. OF FAMILY & COMMUNITY SERVICES (NO. 2)

[2002] FMCA 13

ADMINISTRATIVE LAW - Appeal from Administrative Appeals Tribunal of a decision not to grant extension of time - decision to be reviewed by AAT was favourable to applicant - no utility in application - appeal dismissed.

Administrative Appeals Tribunal Act 1975 (Cth) ss 44, 44AA

Children (Care and Protection) Act 1987 (NSW) s 60

Brown v Repatriation Commission [1985] FCA 194; (1985) 60 ALR 289

Waterford v Commonwealth [1987] HCA 25; (1987) 71 ALR 673

Appellant:

GARRY DRUETT

Respondent:

DEPARTMENT OF FAMILY & COMMUNITY SERVICES

File No:

SZ 666 of 2001

Delivered on:

5 February 2002

Delivered at:

Sydney

Hearing Date:

14 January 2002

Judgment of:

Raphael FM

REPRESENTATION

The Appellant appeared in person.

Solicitors for the Respondent:

MR G Peek Australian Government Solicitor

ORDERS

(1) The appeal be dismissed.

(2) The appellant pay the respondent's costs.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SZ 666 of 2001

GARRY DRUETT

Appellant

And

DEPARTMENT OF FAMILY & COMMUNITY SERVICES (COMMONWEALTH)

Respondent

REASONS FOR JUDGMENT

1. This is an appeal against a decision of Senior Member Ms S M Bullock made on 19 July 2001 in the Administrative Appeals Tribunal in Tribunal matter N 2001/663. The Tribunal decided that no extension of time would be granted to Mr Druett to lodge an application for review in relation to a decision of the Social Security Appeals Tribunal, made on 12 January 2001.

2. Section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) is in the following form:

44 (1) 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.

3. Pursuant to the provision of s 44AA, an appeal that is pending to the Federal Court from a non-presidential member of the Tribunal may be transferred to a Federal Magistrates Court. This appeal was transferred pursuant to that section by order of Katz J on 11 October 2001.

4. In considering the effect of s 44 the learned authors of the "Australian Administrative Law" service, Ed D C Pearce - Butterworths, quote from two decisions which clearly define the limits of the Court in hearing these matters. In Brown v Repatriation Comm [1985] FCA 194; (1985) 60 ALR 289 at 291, the Full Bench of the Federal Court said:

"The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it."

5. In Waterford v Commonwealth [1987] HCA 25; (1987) 71 ALR 673 at 689, Brennan J said:

"A finding by the AAT on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law."

6. Senior Member Bullock set out the nature of the decision which she was about to make in her reasons at paragraph 1 of her reasons.

(i) "Mr Garry Druett has applied to the Administrative Appeals Tribunal ("the Tribunal") for an extension of time to lodge an application for a review to the Tribunal concerning a decision made by the Social Security Appeals Tribunal ("SSAT") made on 12 January 2001. The SSAT's decision was in favour of Mr Druett that he should not have been found by a Centrelink delegate of the Secretary, Department of Family and Community Services (Cth) to have breached an activity test on 16 May 2000. The SSAT's decision meant that Mr Druett's appeal to the SSAT was successful. Mr Druett lodged his extension of time application to the Tribunal on 18 May 2001."

7. In fact, there was before the Tribunal in addition to that issue five other issues, these being:

i) Issuing s 60 order to police on 9.1.98;

ii) Cancellation Family Payment for Chloe Druett February 1998, Greg, Nicole and Bernice August 1998;

iii) Unsuitable for work assessment by Centrelink middle 1998;

iv) Transfer of my file for extended period to Mt Druitt in 1999;

v) Breach action in May 2000 against me by Centrelink.

8. Although it was arguable that none of these matters needed to have been considered by the Tribunal, they were. The Tribunal found that matter (i) was a decision made under New South Wales legislation and was therefore not within the jurisdiction of the AAT. (ii) was the subject of an application for review to the Tribunal. (iii) was in fact a referral of Mr Druett for "intensive assistance" which had not been reviewed by an authorised review officer and was therefore not within the jurisdiction of the AAT. (iv) did not come within the meaning of s 3 of the AAT Act and (iv) was the one which the SSAT had decided favourably to Mr Druett. The Senior Member, after considering the relevant cases, came to the conclusion "that there is no merit or utility in granting an extension of time to review a decision of the SSAT, which has produced for Mr Druett the most favourable result. To allow the extension of time would be prejudicial to the respondent and, on all of the evidence, with no benefit to anyone."

9. Mr Druett supported his appeal with a series of affidavits and a summary of argument which had originally been used in an application for special leave to appeal to the High Court of Australia from other proceedings which he had commenced in the New South Wales jurisdiction. He also made oral submissions to me. In these submissions Mr Druett said words to the following effect:

"This goes to the heart of the matter. The assessment regarding work. That is why they took my children. They want me to be unemployed so I can't have my children. I was unfairly breached."

10. It is clear from Mr Druett's submissions, both written and oral, that he is really seeking redress for the original decision of the New South Wales Department of Family & Community Services to place his four children into care. Mr Druett regards all decisions taken by either the New South Wales Department or the Commonwealth Department of the same name thereafter as having a direct bearing on this major decision and as part of a general conspiracy to ensure that he is unable to have the custody of his children again. At the time the decision germane to this matter was made, Mr Druett was working as a door-to-door salesman and, it would appear, was in receipt of certain additional payments from the Department which the SSAT agreed had been wrongfully stopped. Mr Druett was eventually repaid a sum of approximately $161.

11. Mr Druett was unable to point to any authority through which he might have been able to criticise the decision of Senior Member Bullock. I have no doubt that the Senior Member's decision was correct. She was generous to Mr Druett in considering the additional matters that he had raised. It was not necessary for her to have done this. The one matter that properly came before the Tribunal had already been determined in Mr Druett's favour. While there might be a general power in the Tribunal to re-open matters where some benefit could be done to the applicant, in this case the Tribunal could provide him with nothing that had not already been granted by the SSAT.

12. In the circumstances, I would uphold the decision of the AAT and dismiss the appeal. There is no utility in granting an extension of time in which to review a decision which is favourable to the applicant and in respect of which he can obtain no additional benefit.

13. I order that the appellant pay the costs of the respondent pursuant to Part 21.10 of the Federal Magistrates Court Rules. I grant the respondent a certificate for an advocate pursuant to Part 21.15 of the Federal Magistrates Court Rules.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: