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This was a class action filed by a self-represented aged pensioner against the Secretary of the Department of Social Services (Secretary), Services Australia and the Commonwealth Ombudsman (Ombudsman) in relation to the way in which relevant officers of the Commonwealth government approach the assessment of the value of 'curtilage' for the purposes of determining whether a person meets the asset test requirements for obtaining a pension. The applicant sought to bring the proceeding on behalf of some 2,567 persons whose aged pension, he alleged, had been wrongly cancelled on the basis of an assessable amount of curtilage. He alleged that the Secretary had acted in a manner inconsistent with its statutory authority and that the Ombudsman acted improperly in failing to deal with his complaints about the practice of the Secretary. The applicant claimed that class members who were wrongly refused the aged pension were entitled to some form of ‘backpay’ from the respondents. 

In this decision, Colvin J ordered that the proceeding be dismissed for three reasons.  

First, his Honour refused to grant the applicant leave to conduct the proceeding without legal representation. His Honour said that, for the reasons outlined in Wilkinson v Wilson Security Pty Ltd (No 2) [2022] FCA 1161 (Wilson Security), “it is to be expected that leave would be refused in almost all instances” (at [8]). His Honour found that there was no exceptional reason that would justify leave being granted in the present case. 

Second, his Honour found that the applicant had not demonstrated a sufficient personal interest to bring the proceeding as a representative applicant. Indeed, the applicant is receiving the aged care pension and was therefore not adversely affected by any decision made concerning his entitlement to the pension. His Honour said there was also no evidence to suggest he would be adversely affected in the future. 

Third, his Honour found that the applicant’s claims against the Ombudsman fell within the immunity afforded by s 33 of the Ombudsman Act 1976 (Cth) (Ombudsman Act), which, in effect, provided an immunity from suit for any act done or omitted to be done in good faith. 

Finally, his Honour rejected the applicant’s submission that notice ought to be given to class members before the proceeding was dismissed. His Honour distinguished the present case from the circumstances in Wilson Security (in which notice was ordered) on the basis that the only issue that arose in Wilson Security was whether the self-represented applicant ought to be given leave to conduct the proceeding without legal representation. In the present case, his Honour also found that the applicant did not have a sufficient personal interest to bring the proceeding, and that the Ombudsman was covered by the immunity afforded by s 33 of the Ombudsman Act. Further, in Wilson Security, numbers of class members had communicated to the Court that they wished the proceeding to continue as a representative proceeding. There was no such evidence in the present case.  

Paschke v Secretary, Department of Social Services [2023] FCA 6

Federal Court of Australia, Colvin J,
12 January 2023  

Applicant’s Solicitors: The Applicant appeared in person
Respondents’ Solicitors: The Respondents did not appear
Applicant’s Funder: N/A 

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