Dudzinski v Rossington [2000] FCA 1659 (17 November 2000)

Last Updated: 20 November 2000

FEDERAL COURT OF AUSTRALIA

Dudzinski v Rossington [2000] FCA 1659

ANNA DUDZINSKI AND WALDEMAR DUDZINSKI v SM ROSSINGTON AND DAVID ROSALKY, SECRETARY OF THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Q 84 OF 2000

DRUMMOND J

BRISBANE

17 NOVEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 84 OF 2000

BETWEEN:	ANNA DUDZINSKI FIRST APPLICANT WALDEMAR DUDZINSKI SECOND APPLICANT
AND:	SM ROSSINGTON FIRST RESPONDENT DAVID ROSALKY, SECRETARY OF THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES SECOND RESPONDENT

JUDGE:	DRUMMOND J
DATE OF ORDER:	17 NOVEMBER 2000
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The applicants' originating application be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 84 OF 2000

BETWEEN:	ANNA DUDZINSKI FIRST APPLICANT WALDEMAR DUDZINSKI SECOND APPLICANT
AND:	SM ROSSINGTON FIRST RESPONDENT DAVID ROSALKY, SECRETARY OF THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES SECOND RESPONDENT

JUDGE:	DRUMMOND J
DATE:	17 NOVEMBER 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 This is an application by the respondents, the Secretary of the Department of Family and Community Services and his delegate, to strike out the applicants' application and statement of claim under O 20 r 2 the Federal Court Rules. In seeking to satisfy the test for striking out a proceeding under this rule, the respondents have a heavy burden. See General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129 - 130.

2 The applicants', by their originating proceeding filed 31 August 2000, claim the following:

* A mandamus to compel the respondents to pay the moneys to which the first applicant claims to be entitled by way of newstart allowance in the period 8 June to 23 July 2000 (par 1.1).

* A mandamus to compel the respondents to pay to the second applicant, as the first applicant's spouse, partner allowance to which he claims to be entitled in respect of the same period (par 1.2).

* A mandamus requiring the first respondent to reveal the identity of two departmental agents or employees who the applicants believe have had some involvement in dealing with their disputed claims to the social security benefits referred to above (pars 1.3 and 1.4).

* Prohibitions preventing the respondents from withholding payment to the applicants of the newstart and partner allowances for the period referred to above (pars 2.1 and 2.2). (As I understand it, these paragraphs contain the argumentative basis on which the applicants rely to show, in part at least, that the withholding of these allowances was not authorised by the Social Security Act 1991 (Cth)). The same result is sought to be achieved by the prohibition sought in par 2.4.

* Prohibition is also sought to prohibit the respondents from coercing the first applicant into signing an Intensive Assistance Activity Agreement (par 2.3) and prohibiting them from reducing or cancelling the first applicant's newstart allowance - which cancellation took effect on 8 June 2000 - on the basis of material supplied to the respondents by their agent Sarina Russo Job Access.

3 Mrs Dudzinski has tertiary qualifications in hospitality management obtained in Poland and tertiary qualifications in applied science, legal and justice studies and as a graduate librarian, all obtained in Australia. She has, however, only worked for short periods here and has long been in receipt of newstart allowance. Throughout the period here relevant, the second applicant's entitlement to partner allowance has depended on the first applicant being entitled to newstart allowance.

4 The circumstances out of which the litigation arises are contained in the decision of the Social Security Appeals Tribunal of 17 August 2000. Early this year, another dispute arose between Mrs Dudzinski (with support from her husband, the second applicant) and the respondents' agent, Sarina Russo Job Access, as to the terms of the Newstart Activity Agreement which Mrs Dudzinski was then required to enter into pursuant to s 604(1) the Social Security Act 1991 (Cth). Willingness to enter into such an agreement is a qualification for newstart allowance: see s 593(1)(c). This resulted in a decision to cancel her newstart allowance for a time, a decision subsequently varied to the imposition of a rate reduction penalty on her. The Tribunal considered that:

"... no proper grounds are to be found in Mr Dudzinski's submission [he appeared for his wife before the Tribunal] and in the notes of the interview of 21 January 2000 to justify a refusal by Mrs Dudzinski to enter into a newstart activity agreement. The grounds of refusal go to complaint about the system itself and, in relation to the employment terms suggested on behalf of Mrs Dudzinski [by her husband] for inclusion in any agreement, constitute a remarkable act of self-indulgence and were terms that had no realistic prospect of being accepted. In the Tribunal's opinion the evidence supports the conclusion that Mrs Dudzinski refused to enter into a newstart activity agreement when required to do so and/or was unreasonably delaying doing so."

5 The Tribunal found that Centrelink's letter of 24 January 2000 advising her that she had failed to enter into a Newstart Activity Agreement was a notice effective for the purposes of s 607, with the consequence that, by force of s 625, newstart allowance was not payable to her (though, as the Tribunal noted, Centrelink subsequently altered the imposition of a non-payment period as a result of Mrs Dudzinski's failure to enter into the Newstart Activity Agreement to a rate reduction period "because of the successful outcome of other matters in Mrs Dudzinski's favour"). The Tribunal decision records that Mr and Mrs Dudzinski had earlier become embroiled in exactly the same kind of dispute about whether Mrs Dudzinski could be required to enter into a Newstart Activity Agreement containing particular terms in late 1999 and that they ultimately succeeded in overturning a penalty imposed on Mrs Dudzinski by Centrelink for failure to enter into the agreement then in question on the ground that Centrelink had failed to provide proper notice to Mrs Dudzinski of the basis for the imposition of the breach contrary to s 607 of the Act.

6 This dispute cycle started again with the issue on behalf of the second respondent of a notice under s 605(3) on 10 May 2000 requiring Mrs Dudzinski to enter into another Newstart Activity Agreement. The result was the same. By late May, circumstances similar to those which had occurred in the early part of the year and resulted in the stoppage for a time of Mrs Dudzinski's newstart allowance had recurred. The outcome, once again, was a decision by the respondents that Mrs Dudzinski's refusal to enter into the proffered Newstart Activity Agreement otherwise than on terms acceptable to her resulted in her not being qualified for newstart allowance pursuant to s 593(1) and her payments were stopped from 8 June 2000. It is that stoppage which is the subject of these proceedings.

7 Subsequently, however, Mrs Dudzinski did enter into a Newstart Activity Agreement on 7 September 2000. As a result, both she and her husband were paid arrears of newstart allowance and partner allowance respectively for the period from 8 June 2000 to 19 July 2000.

8 As I have indicated, mandamus is claimed to compel the payment of these allowances to the applicants from the stoppage date of 8 June 2000 to 23 July 2000. The respondents explained that no payments of benefit were made to either applicant in the period 20 July to 23 July because Mrs Dudzinski was in employment from 20 July to 30 August and her income precluded entitlement to newstart allowance for her and thus to partner allowance for Mr Dudzinski for that period. Although Mr Dudzinski, to whom I gave leave to speak on behalf of his wife, disputed this, Mrs Dudzinski confirmed the accuracy of the respondents' assertion about her commencing employment on 20 July. Since 30 August, Mr and Mrs Dudzinski have once again been in receipt of partner allowance and newstart allowance respectively.

9 In Beitseen v Johnson (1989) 29 IR 336, the Full Court, in permanently staying an appeal, said, at 337 - 338:

"In the circumstances revealed to us there is, in the words used by the Full Court of the Supreme Court of Victoria in Hole v Insurance Commissioner [1962] VR 394 at 394, `now no real contest between the parties as to the right' of Mr Johnson to occupy the office of assistant secretary. We do not suggest that the appellants do not genuinely desire to agitate the issues involved in the grounds of their notice of appeal. However such a desire does not satisfy the requirement indicated in Hole v Insurance Commissioner (supra) that `the legal right of the parties' should now be `in actual controversy'. On our understanding that requirement entails that any judgment which might be given on the appeal should confirm or modify rights which remain capable in a real and genuine sense of being enjoyed."

10 The position of the applicants and the respondents is factually the same as that of the parties in Hole where payment before the appeal came on for hearing of the amount in dispute was held to justify the Court in refusing the appellant's request to rule on the legal rights of the parties that were in dispute in the litigation. French J, in Orison Pty Ltd v Strategic Minerals Corporation NL (1988) 81 ALR 183, applied a similar principle to summarily terminate an action under O 20 r 2 on a number of grounds, including that in the circumstances of the case before his Honour, the order sought was so patently futile that to allow the application to proceed would be an abuse of process. Moreover, it is well-established that mandamus and prohibition can be refused where, as here, it would be futile to grant such relief. See R v Williams; Ex parte Lewis [1992] 1 Qd R 643 at 658.

11 Even if the respondents' decision to stop Mrs Dudzinski's newstart allowance on 8 June, a decision which operated until 19 July (and the consequent stoppage of Mr Dudzinski's partner allowance) was wrongful - a point which it appears difficult for the applicants to make out - the applicants have obtained the moneys in respect of which they sought mandamus and prohibition. The respondents having long since done that which the applicants sought to make them do by a combination of mandamus and prohibition, there is no basis upon which these claims can succeed. The claims the subject of pars 1.1, 1.2, 2.1 and 2.2 will therefore be struck out.

12 The prohibition claimed in par 2.4 appears to be designed to overturn the decision stopping the first applicant's newstart allowance and the second applicant's associated partner allowance from 8 June. It too must fail on the grounds of futility.

13 The orders sought, by pars 1.3 and 1.4 of the application, are an attempt by Mr and Mrs Dudzinski to identify persons against whom they may decide to bring proceedings later on. An action can be brought in limited circumstances by A against B to require B to identify a third person so that A can bring proceedings against that third person. On the face of the application and the statement of claim, no such cause of action is pleaded. The applicants have made no attempt to show any foundation for the relief sought in these paragraphs of the application. Moreover, the respondents have now provided the information sought, though not under any obligation at all to do so. These paragraphs will be struck out.

14 By par 2.3 of the application, the applicants seek prohibition to prevent the respondents from requiring the applicant to sign an "Intensive Assistance Activity Agreement" which it is alleged the respondents wrongly characterised as a Newstart Activity Agreement and which, for a further reason, the respondents have no authority to require the first applicant to enter into because of the alleged failure of the Secretary to provide a statement identifying the benefit which, in the Secretary's opinion, the first applicant will get from entering into such an agreement.

15 Section 593 prescribes the qualifications for newstart allowance. One criterion that must be satisfied is that the person must satisfy "the activity test" throughout the relevant period of receipt of the allowance (s 593(1)(b)(i)). A separate criterion to be satisfied, where (as here) the first applicant has been required by the Secretary to enter into a Newstart Activity Agreement, is that the person enters into that agreement (s 593(1)(e)). Section 601 in effect defines what has to be done by a person seeking newstart allowance to satisfy the criterion in s 593(1)(b)(i), ie, to satisfy the activity test. The basic matters involved are set out in s 601(1), viz, the person must satisfy the Secretary that he or she is actively seeking and willing to undertake paid work. But s 601(2) also provides a means for a person to satisfy the activity test in special circumstances where the Secretary has formed a specific opinion that the newstart allowance recipient or applicant should undertake particular paid work.

16 Complementing the qualification criterion for newstart allowance referred to in s 593(1)(e), viz, entry by the person into a Newstart Activity Agreement required by the Secretary, s 604 confers power on the Secretary to impose such a requirement. Section 606 deals with the permissible terms of such an agreement which the Secretary is empowered by s 604 to require a person to enter into. The Manager, Advocacy and Administrative Law Section of Centrelink, Brisbane says that, in the case of long term unemployed persons (as Mrs Dudzinski is), a Newstart Activity Agreement will generally contain terms including "Intensive Assistance". Intensive Assistance is a labour market program pursuant to s 606(1)(f) "designed to focus on maximising a person's exposure to potential job opportunities".

17 It can be seen that, contrary to the allegation which is one basis for the prohibition sought in par 2.3 of the application, there is no link between s 601 and, in particular, s 601(2), and the provisions of the Act dealing with the separate criterion for qualification for newstart allowance relating to the Secretary's requirement of a particular applicant to enter into a Newstart Activity Agreement containing particular terms. That is, the applicants' claim for prohibition is misconceived in so far as it is based on the mistaken belief that the Secretary's powers to require a person to enter into a Newstart Activity Agreement containing particular terms are conditional upon the Secretary forming an opinion of the kind referred to in s 601(2).

18 As to the second basis on which prohibition is here sought, it is apparent from the legislative scheme referred to that there is no basis for the applicants asserting that the respondents' lack power under the Act to require her to enter into the Newstart Activity Agreement in the particular form required: s 606(1) confers full power on the Secretary to impose the requirement the subject of complaint.

19 This paragraph of the application must also be struck out since the applicants cannot hope to make out this case either.

20 In the result, the whole of the applicants' case must fail. The respondents' motion succeeds. The applicants' originating application will therefore be dismissed.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated: 17 November 2000

Counsel for the Applicants:	The applicants appeared in person
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	13 November 2000
Date of Judgment:	17 November 2000