Case: Formosa v Department of Social Security (1988) 46 FCR 117
Outcome: applied
aside the question of whether the advice given to the appellant was not sufficiently clear and unambiguous so as to be capable of giving rise to an estoppel (see Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 196, 200 and 207-8 (' Kurtovic ')) in my view, no estoppel can arise when the provisions of the Act are mandatory (see discussion in Kurtovic at 208-10 per Gummow J; Theo v Department of Family and Community Services [2005] FCAFC 239 at [20] per Kiefel, Jacobson and Greenwood JJ; Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 at 104-7 per Davies and Branson JJ ( 'Polat') ; and Formosa v Department of Social Security (1988) 46 FCR 117 at 125 per Davies and Gummow JJ). 15 Kurtovic was not a case where a party asserted that the public authority was estopped from asserting that a particular action, of which the other party sought performance, would be ultra vires as exceeding the powers given by or pursuant to a law of the Parliament. However, Gummow J considered the applicability of the doctrine of estoppel in such a case, and stated, at 208: Any doctrine of estoppel in that context would threaten to undermine the doctrine of ultra vires by enabling public authorities to extend their powers both de facto and de jure by making representations beyond power, which they would then be estopped from denying. The inapplicability of the doctrine of estoppel to this case ensures the performance of a statutory duty: see Kurtovic at 208-10 per Gummow J. In my view, the authorities clearly provide that the doctrine of estoppel cannot be called on to aid the appellant in this case. Any suggested exceptions or qualifications to the general rejection of estoppel in public law (see Kurtovic at 213 per Gummow J) have no application to the present case. Further, this is not a case dealing with the exercise of a statutory discretion that is capable of being exercised in favour of the appellant and certainly not at an operational level. It is true that cl 135(1) of sch 1A to the Act gives the respondent discretion to extend a person's maximum portability period, but the respondent can only exercise it in favour of a person who satisfies the criteria set out in subclauses (a), (b) and (c). It was further argued by the appellant that the provision of incorrect advice involves a breach of duty on the part of the respondent. I do not accept that the findings of the Tribunal establish any such breach of duty, but any such breach would, in any event, not constitute an error of law such as to enable me to grant the relief sought in this proceeding ( Apthorpe v Repatriation Commission (1987) 77 ALR 42 at 52-3 per Davies, Lockhart and Gummow JJ; Polat at 103-4 per Davies and Branson JJ. It was also argued that the words 'absent' and 'absence' in cl 135(1) sch 1A to the Act should be read in the context of the Act as a whole and should be interpreted as more than just not physically present. It was submitted that I should adopt a purposive approach to interpreting the legislation and take into account that if one construction will manifestly work an injustice and the other avoid it, the latter construction should be adopted. It was submitted that the appellant was absent from Australia in that while physically present, he was not a resident of Australia. Reference was made to Re Alderson; ex parte Jackson [1895] 1 QB 183, where Vaughan Williams J held that in order to come within s 4 of the Bankruptcy Act 1883, which constituted an act of bankruptcy where a debtor with certain intent 'absents himself' a debtor need not absent himself from any particular place by physical bodily absence. In the context of the Act I am unable to accept that the word 'absent' or 'absence' has any other meaning than its ordinary meaning as found in the dictionary, namely: 'away, not present' ( Shorter Oxford English Dictionary ); 'being away: not present' ( Chambers English Dictionary ); and 'not in a certain place at a given time' ( Macquarie Dictionary ). It is clear that in the case of the appellant, he was not absent from Australia on, relevantly, 1 July 2004. Reliance was placed by the appellant upon the second reading speech of the Family and Community Services and Veterans' Affairs Legislation Amendment (2003 Budget and Other Measures) Bill 2003 (Cth) ('the Bill'). In my view, the provisions of the Act are clear and unambiguous. Extrinsic material cannot be used to contradict the meaning of the legislation itself: see Deputy Commissioner of Taxation v Roger Crook &amp; Associates Pty Ltd [2005] FCA 450 ; (2005) 142 FCR 273 at 277-8. In any event, nothing in the second reading speech deals specifically with the issue for determination here, particularly the requirement that as at 1 July 2004, the person is absent from Australia. I also observe that the Tribunal itself referred to the Explanatory Memorandum to the Bill, which provides, in relation to cl 135(1) sch 1A that: This new provision enables the Secretary to determine unlimited portability for DSP where a disability support pensioner with an unlimited portability period is absent from Australia on 1 July 2004 comes to Australia after that date and does not become an Australian resident again. This part of the Explanatory Memorandum takes away nothing from the ordinary meaning to be given to the legislation itself and may in fact support the ordinary and natural meaning of the word "absent". CONCLUSION The appeal is dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 26 October 2006 Counsel for the Appellant: P Kistler Solicitor for the Appellant: Victoria Legal Aid Commission Counsel for the Respondent: J Lenczer Solicitor for the Respondent: Australia Government Solicitor Date of Hearing: 20 September 2006 Date of Judgment: 20 September 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1396.html