Rickleman & Bird v Secretary, DFHCSIA & Ors [2009] FMCA 20 (21 January 2009)

Last Updated: 22 January 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RICKLEMAN & BIRD v SECRETARY, DFHCSIA & ORS

[2009] FMCA 20

ADMINISTRATIVE LAW – Application for review under the Administrative Decisions (Judicial Review) Act 1977 – Social Security Appeals Tribunal decision – Notice of Discontinuance – litigation guardian – futility – costs.

Administrative Decision (Judicial Review) Act 1977 (Cth) s.5 Social Security (Administration) Act 1999 (Cth) s.123B Federal Magistrates Act 1999 (Cth) ss.42, 79 Federal Magistrates Court Rules 2001 (Cth) Div. 11.2, rr.1.06, 11.08, 11.11, 13.01 and Schedule 1

Lohe v Bird [2004] QSC 23 Bird v Public Trustee of Queensland & Anor [2004] FMCA 278 Bird v Public Trustee of Queensland & Ors [2005] QSC 54 Bird v Public Trustee of Queensland & Ors [2005] HCA Trans 795

First Applicant:

ELIZABETH JANE RICKLEMAN

Second Applicant

GEOFFREY JAMES BIRD

First Respondent:

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Second Respondent:

CHRISTHILDE ERIKA BREHENY Member, Social Security Appeals Tribunal

Third Respondent:

KIM LOUISE BARKER Member, Social Security Appeals Tribunal

File Number:

LNG 41 of 2007

Judgment of:

Roberts FM

Hearing dates:

22 July and 25 November 2008

Date of Last Submission:

25 November 2008

Delivered at:

Launceston

Delivered on:

21 January 2009

REPRESENTATION

Solicitor for the First Applicant:

Ms C Windsor (on 25 November 2008)

Solicitor for the Second Applicant:

The Second Applicant was not represented by a lawyer

Counsel for the Respondents:

Mr D Wilson

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) That the Adult Guardian of Queensland is appointed as litigation guardian for the First Applicant, ELIZABETH JANE RICKLEMAN, with effect from 25 August 2008
(2) That the Application filed 19 November 2007 and all subsequent Amended Applications are dismissed.
(3) That the Second Applicant, GEOFFREY JAMES BIRD, is to pay the costs of the First Respondent fixed in the sum of $5,000.00 (five thousand dollars) within two years of today.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON

LNG 41 of 2007

ELIZBETH JANE RICKLEMAN

First Applicant

GEOFFREY JAMES BIRD

Second Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

First Respondent

CHRISTHILDE ERIKA BREHENY Member, Social Security Appeals Tribunal

Second Respondent

KIM LOUISE BARKER Member, Social Security Appeals Tribunal

Third Respondent

REASONS FOR JUDGMENT

Background

1. This an application by the First Applicant, Elizabeth Jane Rickleman (“Ms Rickleman”) and the Second Applicant, Geoffrey James Bird (“Mr Bird”) which purports to seek a review pursuant to the Administrative Decision (Judicial Review) Act 1977 (“the ADJR Act”) of a decision made by the Social Security Appeals Tribunal (“SSAT”) on 29 October 2007.
2. At all material time Ms Rickleman has been in receipt of Centrelink benefits.
3. From time to time Ms Rickleman has lived with Mr Bird.
4. On 11 August 2003 the Guardianship and Administration Tribunal of Queensland (“the Guardianship Tribunal”) appointed:
   1. The Adult Guardian of Queensland (“the Adult Guardian”) as guardian for Ms Rickleman for legal matters not related to her financial or property matters; and
   2. The Public Trustee of Queensland (“the Public Trustee”) as administrator for her for all financial matters.
5. On 9 December 2004 the Guardianship Tribunal continued the appointments for five years in relation to the Adult Guardian, and until further order of the Guardianship Tribunal in relation to the Public Trustee.
6. On 20 February 2007 Ms Rickleman wrote to the Manager of Centrelink at Bundaberg in Queensland in which she stated: “I am writing to apply for Centrelink to remove the Public Trustee as my nominee and appoint my carer as my nominee”. It is quite clear that she was referring to Mr Bird when she referred to “my carer”.
7. The Public Trustee had been appointed pursuant to section 123B of the Social Security (Administration) Act 1999 (the SSA Act) as the payment nominee of Ms Rickleman, so by that letter of 20 February 2007 she was clearly seeking to overturn that. (The Public Trustee has been the payment and correspondence nominee of Ms Rickleman since August 2003.)
8. On 23 February 2007 a decision was made within Centrelink not to change the payment nominee and on 3 July 2007 that decision was upheld by an internal review within Centrelink. On 30 August 2007 Ms Rickleman and Mr Bird sought a review by the SSAT.
9. Their application for that review was heard by the SSAT in Hobart on 4 and 11 October 2007. On 29 October 2007 the SSAT made a decision to affirm the decision under review and copies of the written decision were despatched on 5 November 2007. It is that decision that Ms Rickleman and Mr Bird have sought to review under the ADJR Act.

These proceedings

10. On 19 November 2007 Ms Rickleman and Mr Bird filed their Initiating Application.
11. At a Directions hearing on 30 January 2008, Federal Magistrate Hartnett made a number of Orders which included:
    • That Ms Rickleman and Mr Bird file and serve an Amended Application before 29 February 2008.
    • That the First Respondent (“the Secretary”) file and serve a Response and a Court book on or before 14 March 2008.
    • That the matter be listed for Final hearing in Hobart on 22 July 2008.
      
12. Ms Rickleman and Mr Bird filed an Amended Application on 14 February 2008. However, on 10 July 2008 they filed an Application in a Case seeking to further amend the Application. That was consented to on behalf of the First Respondent (“the Secretary”) on the basis that the Applicants pay the Secretary’s costs thrown away in relation to that. After hearing argument on 22 July 2008, I indicated that there would be such an order for costs but the quantum of those costs was still to be determined.
13. At the initial hearing on 22 July 2008 Ms Rickleman and Mr Bird were seeking orders that can be summarised as follows:
    1. A writ of mandamus to require the Secretary to investigate allegations by Ms Rickleman and Mr Bird concerning the treatment of Ms Rickleman and other disability pensioners by the public trustee.
    2. An order quashing the SSAT decision.
    100. An order directing the Secretary to reconsider the decision not to cancel the appointment of the Public Trustee as payment nominee.
    4. A writ of prohibition forbidding of the Secretary from paying Ms Rickleman's social security payments to the Public Trustee.
    5. A declaration that orders of the Guardianship Tribunal concerning Ms Rickleman have no effect when she is outside Queensland.
    6. A declaration that the Guardianship Tribunal has no jurisdiction to make guardianship or administration orders or declarations concerning Ms Rickleman when she is outside Queensland.
    7. A declaration that Social Security payments intended for Ms Rickleman and made by the Secretary to the Public Trustee after 27 June 2007 and prior to any administration order being made in Tasmania concerning Ms Rickleman be regarded as having been paid into the wrong bank account and not as having been paid to Ms Rickleman.
    8. A declaration that the registration of orders made by the Guardianship Tribunal concerning Ms Rickleman with the Tasmanian guardianship and Administration board has no legal effect.
    9. A declaration that Ms Rickleman is not mentally incapacitated.
    10. Alternatively:
        1. an order that the Tasmanian guardianship and Administration board hold an inquiry to determine whether Ms Rickleman is insane; and
        2. a declaration that Ms Rickleman is not mentally incapacitated.
    11. An order that publication of the names of Ms Rickleman and Mr Bird in reports of these proceedings and in reports of proceedings of the SSAT be prohibited.
14. The Secretary opposed the making of any such orders and contended that the SSAT had made no error of law which constitutes a ground of review under section 5 of the ADJR Act.
15. Lengthy written submissions were filed on behalf of Mr Bird and Ms Rickleman, and on behalf of the Secretary.
16. The Second and Third Respondents did not take part in the proceedings other than to submit to the jurisdiction of the Court.

The July hearing

17. At the start of the hearing on 22 July 2008, I indicated that because the written submissions on behalf of the Secretary indicated a view that Mr Bird might not have standing in relation to the matter, that issue should be resolved first. However, Mr Wilson, Counsel for the Secretary indicated that Mr Bird should be allowed to put forward the arguments on behalf of Ms Rickleman and himself, essentially as spokesman for them both. In my view, Mr Wilson’s approach was generous to Mr Bird because he has a long history of agitating this particular matter in Courts and tribunals, and has even been declared to be a vexatious litigant in Queensland.
18. I heard lengthy arguments on that day from Mr Bird and from Mr Wilson that I do not need to repeat at this stage. My decision was reserved.

Subsequent events

19. On 11 August 2008, the Guardianship Tribunal made an interim order that the Adult Guardian be appointed as guardian for Ms Rickleman “for all personal matters”. That order was to continue for a maximum of three months.
20. On 15 August 2008, Mr Bird wrote to the court, essentially to state that he and Ms Rickleman would not be in Tasmania "when Federal Magistrate Robert's hands down his decision in our case". His letter also stated:
    • Last week, Ms Rickleman took matters into her own hands and returned to Brisbane with an air ticket provided by the Adult Guardian.
21. On 25 August 2008, I granted leave for the Adult Guardian to file a Notice of Discontinuance on behalf of Ms Rickleman in relation to all orders sought by her. Such leave was necessary because Sub-rule 13.01(2) of the Federal Magistrates Court Rules 2001 (“the Rules”) provides as follows:
    • A notice of discontinuance may be filed:
    • (a) at least 14 days before the day fixed for the final hearing of the application; or
    • (b) with the leave of the Court or a Registrar, at a later time.
22. On 27 August 2008, at a further mention of this matter in Hobart, I suggested to Mr Bird that the Notice of Discontinuance may have left him "up the creek without a paddle". He did not agree and I set the matter down for hearing in Launceston on 21 November 2008, with leave granted to all parties to appear by telephone. However, it subsequently transpired that I would be sitting in Brisbane during the week commencing 24 November 2008, so that listing was changed for the convenience of some of the parties to 25 November 2008 in Brisbane.
23. On 6 November 2008 the Guardianship Tribunal appointed the Adult Guardian as guardian for Ms Rickleman “for all personal matters” for five years “unless the Tribunal orders otherwise”.

The November hearing

24. At the hearing on 25 November 2008 (“the November hearing”), Mr Bird appeared in person, Ms C Windsor appeared for the Adult Guardian and Mr D Wilson appeared by telephone from Hobart for the Secretary.
25. Mr Bird had provided written submissions in which, inter alia, he argued that the Adult Guardian would have to become Ms Rickleman’s litigation Guardian in order to be able to intervene in the proceedings. He also argued that the Adult Guardian was unable to comply with the provisions of Division 11.2 of the Rules. In my view, I need to firstly turn my attention to those arguments, because they clearly relate to the status of the Notice of Discontinuance.
26. In his written submissions for the November hearing, Mr Bird says the following:
    • 1. The Queensland Adult Guardian, Leanne Pendergast, has sought to file a document withdrawing Ms. Rickleman from the proceeding.
    • 2. Before Leanne Pendergast can withdraw Ms. Rickleman from the proceeding, Ms. Pendergast would have to become Ms. Rickleman's litigation guardian in accordance with Rules 11.08 to 11.15 of the Federal Magistrates Court Rules 2001.
    • 3. Ms. Pendergast has not filed an affidavit of consent as required by Rule 11.12 or served notice on the parties as required by Rule 11.13.
    • 4. On the true construction of Rule 11.12, there are two prerequisites for Ms. Pendergast to become a litigation guardian for Ms. Rickleman; that she must be an "authorised person", and that Ms. Rickleman "needs a litigation guardian".
    • 5. It is conceded that Ms. Pendergast is an "authorised person" for representing Ms. Rickleman when the Court is sitting in Queensland, but it is not conceded that Ms. Rickleman "needs a litigation guardian".
27. Rule 11.08(1) of the Rules provides that “a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding”.
28. In my view, there are ample reasons for the Court to conclude that Ms Rickleman needs a litigation guardian. For example:
    1. Consistently, throughout proceedings before the Guardianship Tribunal, Ms Rickleman has been found to be a person with an incapacity. In the Reasons for the interim order of 11 August 2008, the President of that tribunal noted that “Ms Rickleman has been known to Tribunal since 2001 and has a long history of psychiatric disorder”.
    2. Throughout the life of these proceedings, the Adult Guardian has had legal authority in Queensland to act on Ms Rickleman’s behalf in relation to such matters. On 11 August 2008 an interim order of the Guardianship Tribunal appointed the Adult Guardian her guardian “for all personal matters” and on 6 November 2008 the tribunal made a further such order valid for five years “unless the tribunal orders otherwise”.
    100. When this matter came on for hearing on 22 July 2008, Ms Rickleman played virtually no part in the proceedings and, indeed, she appeared to be asleep with her head on her arms on the bar table throughout most of that hearing.
29. Mr Bird’s submissions are also misguided in that they appear to suggest that the Adult Guardian must make an application to be appointed as a litigation guardian. Rule 11.11 clearly provides that the Court may appoint a litigation guardian “at the request of a party or of its own motion”[1].
30. By filing a Notice of Discontinuance, it is clear that the Adult Guardian has taken the view that it is necessary to act on behalf of Ms Rickleman, so it is easy to infer that the Adult Guardian is of the view that Ms Rickleman is incapable of conducting the proceedings herself. I find it very easy to share that view.
31. In paragraphs 10 and 11 of his submissions, Mr Bird implies that the Adult Guardian has interests that are adverse to those of Ms Rickleman. I do not accept that. Indeed, if anything, I am of the view that Mr Bird may have interests that are adverse to those of Ms Rickleman. His application has the general and ultimate objective of gaining control of Ms Rickleman’s Centrelink benefits by having them paid to himself. The Adult Guardian will not gain control of those benefits because they are paid to the Public Trustee of Queensland to be applied for the benefit of Ms Rickleman.
32. While the Adult Guardian’s actions may not have been strictly in accordance with the provisions of Division 11.2 of the Rules, I note that Rule 1.06 enables the Court to dispense with compliance with the Rules in the interests of justice. Further, section 42 of the Federal Magistrates Act 1999 provides that the “Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted”.
33. In view of the above, I concluded that it is appropriate to appoint the Adult Guardian of Queensland as litigation guardian for Ms Rickleman with effect from 25 August 2008 (being the date on which I granted leave of the Notice of Discontinuance to be filed).
34. That will make the Notice of Discontinuance effective from that date and it is quite clear that Mr Bird cannot continue the proceedings in the absence of Ms Rickleman. In short, if the recipient of Centrelink benefits is not seeking to have the payment nominee changed, Mr Bird cannot continue with the application.
35. In those circumstances, I must dismiss the application.

Futility of the proceedings

36. Even if I am wrong about the foregoing, I am also persuaded by a further argument put forward by Mr Wilson on behalf of the Secretary.
37. Mr Wilson said that the sole basis upon which Mr Bird could continue the proceedings would be that he and Ms Rickleman were living together in a shared domestic relationship. He pointed out that as that is no longer the case, even if this matter could be referred back to the SSAT, there would be absolutely no possibility that Mr Bird could be appointed as payment nominee for Ms Rickleman. In those circumstances, the whole application is completely futile.
38. As indicated, I am persuaded by that argument.
39. I can also say that had matters not developed in the way that they did after the July hearing, I would have dismissed the application on the basis of arguments put forward by Mr Wilson at that July hearing. I do not need to repeat them, but they were also persuasive.

Costs

40. On behalf of the Secretary, Mr Wilson seeks costs against the applicants.
41. Subsection 79(2) of the Federal Magistrates Act 1999 provides the Court power to award costs in proceedings not involving family law or child support. It provides:
    • The Federal Magistrates Court or a Federal Magistrate has jurisdiction to award costs in all proceedings before the Federal Magistrates Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.
42. Subsection 79(3) provides:
    • Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Magistrates Court or Federal Magistrate.
43. It is clear that because an order for costs is in the discretion of the Court, costs cannot be said to “follow the event”. In other words, costs are not automatically ordered against an unsuccessful party.
44. The application for costs is resisted by the Adult Guardian on behalf of Ms Rickleman. Briefly, her arguments against a cost order were:
    1. Ms Rickleman is impecunious and her main income is from the Centrelink benefits;
    2. her financial affairs are administered by the Public Trustee under an indefinite appointment;
    100. she has consistently been found to be a person with a long history of psychiatric disorder;
    4. she has been unduly influenced by Mr Bird; and
    5. it would be unjust to order costs against her.
45. Mr Bird also opposed the making of any costs order against him. Essentially, his argument was that, in this Court, costs do not follow the event.
46. In my view, it is abundantly clear that, until Ms Rickleman returned to Queensland, Mr Bird was in control of the litigation on behalf of both applicants. I have no hesitation in coming to the conclusion that Ms Rickleman would probably not have instituted any proceedings were it not for the significant influence that Mr Bird exercised over her. In those circumstances, I conclude that it would not be just to order costs against her. However, Mr Bird's situation is very different.
47. It is quite clear, from the significant litigation that Mr Bird has indulged in over the years[2], that he is the prime mover in relation to this matter and I venture to suggest that he is somewhat obsessed by it. I note that he has been declared a vexatious litigant in Queensland.[3]
48. At times, his arguments were obscure and misguided. For example, in his written submissions for the November hearing, he said the following:
    • 62. Having appeared before many highly learned Judges, the Second Applicant is of the view that the only important attribute in a Judge is honesty, and an extensive knowledge of the law is the last thing a selection panel should look at.
    • 63. Suppose that a Judge is dealing with some highly obscure area of the law; an acceptable course of action would be for the Judge to select which of the opposing counsels appears to be the most correct, and then adopt that counsel's submission as the opinion of the Court.
    • 64. Not only is this an honest thing to do, but it is quite easy to put into effect, as the Judge need only rewrite counsel's submission as a judgment.
    • 65. Having come up with a judgment in this way, the Judge can then embellish the judgment by adding his own original thoughts on the matter if he has the time.
49. While that is certainly one of the more outlandish suggestions in his material, it does show how he has wasted the Court's time and clearly increased the Secretary’s costs unnecessarily and significantly.
50. Costs in this Court are regularly determined by reference to Schedule 1 of the Rules. If I was to award costs by reference to that Schedule, those costs would be substantial. For example, they could be as follows:

Stage 1: Initiating or opposing application up to completion of first court day	$2,005.00
Two short mentions	$410.00
Preparation for July hearing – one day	$4,505.00
Daily Hearing Fee – July hearing	$1,500.00
Advocacy loading	$750.00
Preparation for November hearing – half-day (say)	$2,000.00
Daily Hearing Fee – November hearing	$750.00
Advocacy loading	$375.00
Photocopying per page – Court book X 3 plus numerous others – say 500 pages	$285
Total	$12,580

51. In my view, there would be little point in making a costs order against Mr Bird in the sum of $12,580. That is because it is highly unlikely that he would ever pay such a sum. As far as I am aware, Mr Bird is only in receipt of Centrelink benefits and I am of the opinion that there is little point in making a costs order that is unlikely to be met. For that reason, it is my view that there should be a costs order against Mr Bird in the sum of $5,000 and that he should be given a reasonable time to pay that sum. Two years is a reasonable time to pay that sum.
52. The sum of $5,000 includes the costs referred to in paragraph 12 above.
53. There will be orders in terms of what is set out above.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Roberts FM

Associate:

Date:

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[1] My emphasis.
[2] See Lohe v Bird [2004] QSC 23, Bird v Public Trustee of Queensland & Anor. [2004] FMCA 278, Bird v Public Trustee of Queensland & Ors [2005] QSC 54, Bird v Public Trustee of Queensland & Ors [2005] HCA Trans 795
[3] Lohe v Bird [2004] QSC 23