Burridge, L. v Secretary, Department of Employment, Education & Training
[1990] FCA 528
•26 SEPTEMBER 1990
Re: LINDSAY BURRIDGE
And: SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION AND TRAINING; SECRETARY,
ATTORNEY-GENERAL'S DEPARTMENT; FIRST ASSISTANT SECRETARY, FINANCIAL MANAGEMENT
DIVISION, DEPARTMENT OF FINANCE and INSPECTOR PERSONNEL, ATTORNEY-GENERAL'S
DEPARTMENT
No. ACT G3 of 1990
FED No. 528
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)
CATCHWORDS
Administrative Law - Judicial review - Public servant - Officer informed he was deemed to have retired - Payment of entitlements as on retirement - Subsequent determination that action unauthorised - Officer re-instated - Claim that amounts paid as on retirement be repaid - Application by officer that right to payment be waived - Officer subsequently retiring from Australian Public Service - Amount of overpayment agreed - Arrangement for amount to be deducted from final payment on retirement pending determination of waiver application - Whether statutory power to waive survived - Meaning of "amount payable to the Commonwealth" - Whether instrument of delegation invalid for absence from its face of date of execution - Whether decision a decision under an enactment.
Administrative Law - Judicial review - Public servant - Transfer from Darwin to Canberra - Calculation of travelling allowance payable - Discretion exercised by reference to guidelines having no statutory force - Whether discretion validly exercised.
Administrative Decisions (Judicial Review) Act (Cth), s.5
Audit Act 1901 (Cth), ss.70C(2), 71, 72
Finance Regulations, reg.127A
Finance Directions 24/15 - 24/22
Public Service Act 1922 (Cth), s.82D
Public Service Determination 1983/10
Personnel Management Manual, Vol.8, sub-s.8/C
HEARING
CANBERRA
#DATE 26:9:1990
The applicant appeared in person.
Counsel for the respondents : Mr P.A. Coppel
Solicitor for the respondents : Australian Government Solicitor
ORDER
The Court:
1. Orders that the decision made by an officer of the Department of Finance on 12 December 1989 that sub-s.70C(2) of the Audit Act 1901 (Cth) provided no authority for him, as a delegate of the Minister for Finance, to consider and determine upon its merits the application by the applicant that the right of the Commonwealth of Australia to the payment to it by him of an amount of $5,743.73 be waived be set aside.
2. Directs that the Minister for Finance or his delegate consider and determine, on its merits, the said application.
3. Orders that otherwise the application be dismissed.
4. Orders that the respondents pay two-thirds of the applicant's costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
At all material times prior to his retirement, which took effect from 10 March 1989, Lindsay Burridge ("the applicant") was an officer of the Australian Public Service constituted under s.10 of the Public Service Act 1922 (Cth). He has applied to this Court for orders of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect of -
(a) A decision made by an officer of the Department of Finance on 12 December 1989 that sub-s.70C(2) of the Audit Act 1901 (Cth) provided no authority for him, as a delegate of the Minister for Finance, to consider and determine upon its merits an application by the applicant that the right of the Commonwealth of Australia to the payment to it by him of an amount of $5,743.73 be waived; and
(b) A decision made by an officer of the Department of Employment, Education and Training on 26 September 1989 as to the amount properly payable to the applicant by way of travelling allowance in respect of the period from 4 January 1988 to 22 June 1988 (both dates inclusive).
In his amended application filed on 26 February 1990 the applicant had also sought an order of review in respect of "the failure of the first and second respondents to audit the applicant's sick leave entitlements as at the date of his retirement". The first and second respondents are the Secretary to the Department of Employment, Education and Training and the Secretary to the Attorney-General's Department. On 31 May 1990 an affidavit sworn on that day by Ross Anthony Butler, an officer of the Attorney-General's Department, was filed herein on behalf of the respondents in which Mr Butler stated that between 18 and 28 May 1990 he had conducted an audit of the applicant's sick leave entitlements and had informed the applicant by letter dated 30 May 1990 of the results of that audit. By letter dated 6 June 1990 the applicant informed the solicitor for the respondents that he regarded Mr Butler's affidavit as satisfying his grievance in relation to the audit of his sick leave entitlements and that he would seek no relief from the Court in relation to that aspect of the matter.
A further preliminary matter should be mentioned. Much of the affidavit evidence tendered on behalf of the applicant was received subject to objection. A good deal of that evidence does no more than provide a background to the issues which arise for decision but that, of itself, is not a basis for ruling it inadmissible. In my opinion, the whole of the material as admissible with the following exceptions -
. Paragraphs 3-5, 8-11, 13 (third sentence), 14 (first and second sentences) and 16-19 of the affidavit of the applicant sworn on 30 May 1990. . Paragraph 3 and re-numbered pars. 5-7 of the affidavit of the applicant sworn on 31 May 1990. . Paragraph 6 of the affidavit of Steven Ramsey affirmed on 17 May 1990.
. The affidavit of John Richard Tomlinson affirmed on 23 March 1990.
The material before the Court reveals a saga of administrative ineptitude and inefficiency which began early in 1986 or, possibly, even earlier. It appears that in September 1983 the applicant transferred from the Northern Territory Public Service to the Australian Public Service and thereafter occupied the position of Director of the Northern Territory Office of the Commonwealth Schools Commission. It was apparently contemplated that the applicant would, after a period of service in that position, be located at Canberra but that did not eventuate. In September 1985 the position he occupied became one within the then Department of Education.
According to a report dated 28 September 1989 of a committee to which reference will later be made, a written request was made on 13 January 1986 to the Department of Education by an officer within the Department of the Chief Minister of the Northern Territory that the applicant be released to take up a position in the Office of the Parliamentary Counsel within the Northern Territory Public Service. The report further states that the applicant took up that position on 28 January 1986.
On the ground that the applicant had been absent from duty without permission for a continuous period of not less than 4 weeks, a period when the applicant was apparently performing duty in the Office of the Parliamentary Counsel within the Northern Territory Public Service, and that he was engaged in employment not authorised by the Public Service Act and the Public Service Regulations, the Director of the Northern Territory Office of the Department of Education commenced action on 1 April 1986 pursuant to s.66A of the Public Service Act which, if authorised and effective, would have resulted in the applicant being deemed to have retired from the Australian Public Service on 16 April 1986. The applicant was informed that he was deemed to have been so retired by letter dated 20 May 1986 signed by the Director. He was also informed by that letter that the Department of Education would make the appropriate adjustments to his final payment to reflect his unauthorised absence from duty.
The applicant questioned the validity of the action taken against him by the Director and requested that no final payment be made to him until the position was further examined. Notwithstanding his protestations, a letter dated 4 June 1986 was sent to the applicant from the Department of Education giving details of his entitlements following his deemed retirement from the Australian Public Service. An attachment to the letter showed that the applicant was entitled to receive amounts totalling $13,174.75 on account of accrued recreation leave, recreation leave bonuses and accrued long service leave. From that amount various sums were shown as having been deducted, leaving a balance of $4,715.64. The letter stated that that amount would be credited to the applicant's Credit Union account the next day and this, apparently, was done. One of the amounts shown as a deduction was an amount of $2,273.54 on account of income tax, an amount which, it may be assumed, was paid to the Commissioner of Taxation on the applicant's behalf. Other amounts shown as deductions were an amount of $109.09 described as "Sick leave without pay 13/12/85", amounts of $5,415.36 and $306.98 described respectively as over-payment from 3 March 1986 of salary and district allowance, an amount of $9.00 described as "Outstanding Advance" and an amount of $345.14 described as "Over-paid Leave Fare". The committee to which reference has already been made identified the amount of $345.14 as having been paid to the applicant in 1983 and as an amount "in respect of which he had long sought waiver procedures to be commenced, without success".
Apart from his general assertion as to the invalidity of the action taken under s.66A of the Public Service Act, the applicant disputed the accuracy of the calculations set out in the attachment to the letter dated 4 June 1986. He complained to the Merit Protection Review Agency established under the Merit Protection (Australian Government Employees) Act 1984 (Cth) and made representations to the Public Service Board.
By letter dated 9 July 1986 addressed to the Secretary, Department of Education, the Public Service Board confirmed information given to an officer of that Department that, as a result of an investigation into the matter, the Board had concluded that the action taken against the applicant under s.66A of the Public Service Act had not been validly taken. However, it was not until 6 January 1987 that a letter was written to the applicant by the Department of Education informing him of the invalidity of the action taken in purported pursuance of s.66A of the Public Service Act and instructing him to return to duty with the Department on 2 February 1987. Somewhat curiously, the Department of Education had informed the applicant by letter dated 25 September 1986, in response to a letter of his dated 6 August 1986, that the Public Service Board has "sought advice from the Department on this matter". The letter dated 6 January 1987 appears to have been written only after further representations by the applicant to the Merit Protection Review Agency. The applicant ceased duty with the Northern Territory Public Service and resumed duty with the Department of Education on 2 February 1987.
By letter dated 25 February 1987, the applicant was informed that "the appropriate action with regard to your leave is that you retain the payment of your final entitlements paid to you last year and be treated for leave purposes as though you had availed yourself of that leave". He was further informed that, if he wished to have his recreation and long service leave credits restored, he would have to repay the amount of $13,174.75 referred to in the attachment to the letter dated 4 June 1986. By minute dated 2 March 1987 the applicant informed the Department of Education that, as the action taken by the Director of the Northern Territory Office of the Department was invalid, there was no decision for him to make, the position being that his leave credits had to be restored. He made no comment concerning the repayment of the sum of $13,174.75, stating that, although the need for restoration of his leave credits was clearcut, the consequences of restoration might not be so clearcut and that that was a matter that was not his concern at that juncture. By letter dated 9 March 1987 the applicant was informed that "your leave credits are to be fully restored and that the overpayment, amounting to $13,174.75, is to be fully recovered". The applicant was asked to inform the writer of "the method of repayment of the outstanding amount".
Certain discussions took place in Darwin in late April 1987 between Mr Bowron, a senior officer of the Department of Education, and the applicant and in a minute to the Department dated 23 June 1987 the applicant wrote:
"In discussion with Mr Bowron later that month I indicated that I was prepared to have deductions made from my salary of a minimal nature, pending ultimate clarification of the issue of the amount that was to be repaid. I supposed that this agreement had been implemented at the rate of $10 deduction per pay, but I did not positively check. Recent enquiry leads me to suppose that that deduction has not been implemented. Please note my agreement to a deduction at that rate to a maximum total of $4,000. I believe I will be in a position within days to initiate action that will lead to a resolution of the question of the amount of repayment."
The Department responded by letter dated 21 August 1987 stating simply that an amount of $10 was being deducted from the applicant's salary each fortnight "for recovery of an overpayment". Amounts totalling $260 were deducted from the applicant's salary pursuant to this arrangement, the applicant withdrawing his authority to make such deductions as from 7 July 1988.
By letter dated 27 August 1987 from the Department of Employment, Education and Training which had, by that date, absorbed the Department of Education, the applicant was informed that, as a result of a recalculation having been made, the amount to be repaid to the Commonwealth had been reduced from $13,637.98, a figure greater than that previously identified as the amount of the overpayment, to $6,930.19. The difference, an amount of $6,707.79, was described as being attributable to "restoration of leave". The applicant, however, continued to dispute the correctness of the calculation and also made clear that he would seek waiver of re-payment once the calculation was corrected. Nothing further was done concerning the recovery of the amount at that stage or, indeed, until March 1989.
Before proceeding further, it will be convenient to refer to relevant provisions of the Audit Act, the Finance Regulations and the Finance Directions made thereunder. sub-section 70C(2) of the Audit Act, so far as material for present purposes, provides that the Minister for Finance has, on behalf of the Commonwealth, power to waive the right of the Commonwealth to the payment "of an amount payable to the Commonwealth". The Minister may delegate that power pursuant to s.70A. Section 71 provides for the making of regulations, not inconsistent with the provisions of the Act, for carrying out the provisions of the Act. The section expressly includes a power to make regulations for and in relation to the collection of all public moneys and the guidance of all persons concerned therein. Section 72 provides that the regulations may authorise the giving of directions for or in relation to any of the matters for and in relation to which regulations may be made under the Act. Regulation 127A of the Finance Regulations authorises the giving of such directions. Pursuant to the above provisions Finance Directions have been issued. Finance Directions 24/15 to 24/22 under the heading "Recovery or Waiver of Overpayments of Salary and/or Allowances to Officers and Former Officers" provide:
"15. Where it has been established that an officer or former officer has received moneys in excess of his legal entitlements, the overpayment is recoverable and, subject to Directions 24/20, 24/21 and 24/22 shall be recovered in full. It is the responsibility of the Permanent Head to ensure that appropriate action is taken to this end.
16. An overpayment is to be advised to the officer or former officer immediately it is discovered. Oral notification is acceptable providing that a written record of it is kept and a confirming written/telex/telegraphic advice is sent to the officer or former officer as soon as possible. Advice of an overpayment shall be sent by certified or registered mail where such action is appropriate.
17. Where an overpayment has occurred but is disputed by the recipient and the Department is uncertain whether the overpayment is recoverable, all the relevant facts shall be referred to the Deputy Crown Solicitor for advice before any action is taken to recover. Where the legal advice is that the overpayment is not recoverable at law, action may be taken to write off the amount. A copy of the advising shall be forwarded for information to the Secretary to the Department of Finance.
18. An overpayment may be recovered by instalments but before recovery of amounts over $2 per fortnight is effected by deduction from salary, the Department's proposals for recovery shall be discussed with the officer concerned. If agreement is not reached on the rate of recovery the matter shall be decided by the Permanent Head, or an officer appointed by him for the purpose.
19. Where an officer is leaving, or has left the Service, the amount of any recoverable overpayments shall be deducted from any salary and/or pay in lieu of long service leave, recreation leave or other moneys, except superannuation refunds, owing to the officer or former officer on termination. Recovery of debts from amounts to be refunded from the Superannuation Fund may only be effected in accordance with the procedure set out in Finance Directions 24/23 to 24/32.
20. The amount of an overpayment due to departmental error and received in good faith may be waived by the Permanent Head subject to the following conditions, and as set out in the instrument of delegation to all Permanent Heads signed by the Minister for Finance:
(i) the overpayment does not exceed $1,000; and
(ii) where the amount exceeds $50 a departmental committee including an accounting officer and a union representative is satisfied as to the good faith of the officer or former officer (good faith in cases under $50 is to be determined by the Permanent Head or an officer appointed by him for the purpose); and
(iii) the overpayment was not notified to the officer or former officer within one year of its occurrence; or
(iv) where the overpayment represents the total amount of all repetitive overpayments not notified to an officer or former officer within one year of the last overpayment; or
(v) where the overpayment represents the total amount of all except the last year of repetitive overpayments where the overpayments were notified to an officer or former officer within one year of the last overpayment.
21. Where an overpayment is recoverable and is not waived in pursuance of the preceding Direction, but the officer or former officer requests that recovery be waived on the grounds of hardship, his request, supported by a statement containing full details of income, assets, living expenses and liabilities, and a copy of the departmental committee's report (see Direction 24/20(ii)), shall be submitted along with a departmental recommendation to the Department of Finance for consideration.
22. Where an overpayment exceeds $1,000 and, irrespective of a claim of hardship, waiver is considered appropriate, the material facts and circumstances of the overpayment as well as the departmental committee's report, and together with a departmental recommendation, shall be referred to the Department of Finance for consideration."
To return to the narrative, in November 1987 the applicant was informed that he was to be transferred from his position at Darwin within the Department of Employment, Education and Training to a position within the same Department located at Canberra. The circumstances surrounding this transfer will need to be examined later in these reasons but for present purposes it is sufficient to note that the applicant arrived in Canberra with his family on 4 January 1988 and continued to occupy his position with the Department of Employment, Education and Training until he was promoted to a position within the Attorney-General's Department with effect from 23 June 1988. He remained in the latter position until he was retired from the Australian Public Service pursuant to s.76W of the Public Service Act with effect from 10 March 1989.
The Australian Government Lawyers Association had been consulted by the applicant and that body took up with the Attorney-General's Department the matter of the waiver of the overpayment pursuant to Finance Directions 24/21 and 24/22. On 2 March 1989 a formal application for waiver of the amount said to have been overpaid was prepared and, although the evidence is not clear on the point, I infer that the application was formally lodged by, or on behalf of, the applicant. Mr Steven Ramsey, the Industrial Officer employed by the Association, has given evidence, which I accept, that he had several telephone conversations with officers of the Attorney-General's Department and that it was agreed that, if the question of waiver was not resolved prior to the applicant's retirement from the Australian Public Service, the amount in question would be withheld from his final entitlements but would subsequently be paid to him if the application was ultimately resolved in his favour.
A letter dated 15 March 1989 addressed to the applicant by the Attorney-General's Department contained the following paragraphs:
"As you are aware discussions have been held with the Australian Government Lawyers Association (AGLA) regarding the amount of the overpayment. Following consultation with AGLA, it has been determined that the outstanding overpayment amounts to $6483.73 gross (Attachment B refers). This amount has been withheld from your gross entitlement on voluntary retirement pending determination of your application for waiver of overpayment. (Emphasis added)
...
Your files have now been forwarded to the Department of Employment, Education and Training (DEET) to enable your claim for waiver of the overpayment to be assessed. Any further queries you may have in relation to this matter should be directed to DEET. This department has also forwarded the gross sum withheld from your final entitlements to DEET. Should it eventuate that your application for waiver of overpayment is successful, DEET will be responsible for payment of the withheld monies."
Attachment B was a copy of a letter dated 8 March 1989 from the Australian Government Lawyers Association to the Attorney-General's Department. It set out the following calculation:
"A. Payment made in June 1986.
i) Recreation leave 5517.58 ii) Leave bonus 471.45 iii) Long service leave 7185.72 13174.75 less
i) Sick leave deduction 109.09 ii) Outstanding advance 9.00 iii) Overpaid leave fare 345.14 12711.52 (These amounts having been deducted from the original payment) less
i) Restoration of leave
(as per Andrew
Macrides letter 27
Aug. 1987) 6707.79 6003.73 B. Advanced bond money 740.00 C. Repayments 260.00 The amount therefore owing being A plus B minus C is $6483.73."
That letter also contained the following statement:
"I also confirm that Mr Burridge's personnel file is to be forwarded to DEET for consideration of a waiver."
The letters "DEET" refer, of course, to the Department of Employment, Education and Training.
That Department did not, however, accept that it was its responsibility to deal with the waiver application and, as a result, there was further delay in having the waiver application considered on its merits. In August 1989, however, a committee was constituted pursuant to Finance Direction 24/20(ii) to consider certain aspects of the application.
Following the committee's initial consideration of the matter, the Secretary to the Attorney-General's Department, on 14 September 1989, acting pursuant to Finance Direction 24/20, waived the overpayments of $345.14 and $740.00. It was suggested in argument that the Secretary's decision in relation to the sum of $345.14 was of no effect as the amount sought to be recovered had already been reduced by that amount. I do not find it necessary to express any opinion on that point. It may be noted, however, that the Secretary to the Attorney-General's Department was not in a position to make a decision upon the application for waiver of recovery of the amount of $5,743.73 as the authority conferred on him by delegation from the Minister for Finance did not extend to an amount of that magnitude.
The committee considered the applicant's application for waiver of the amount of $5,743.73. It made a report dated 28 September 1989 which, after reviewing the history of the matter, recorded its conclusion in the following terms:
"For the reasons outlined above the committee cannot but find that the overpayment was received in good faith by Mr Burridge and that no proper account of the overpayment was notified to Mr Burridge within one year of its occurrence. This case therefore meets the requirements of Finance Direction 24/20(ii) and (iii) and should now be considered under Finance Direction 24/22."
The report also recommended that the claim for waiver should receive Departmental support. Such support was given in a letter addressed by the Secretary to the Attorney-General's Department to the Secretary to the Department of Finance. Paragraph 3 of that letter reads:
"Given the circumstances of this case as outlined in the committee's report, and irrespective of the claim for hardship, waiver is considered appropriate. Favourable consideration is therefore requested for waiver of the overpayment made to Mr Burridge and totalling $5743.73."
The application was considered by Maurice John Kennedy, an officer within the Department of Finance holding an appropriate delegation from the Minister for Finance. He reached a conclusion which is expressed in par.5 of his affidavit sworn on 3 May 1990 in the following terms:
"On 12 December 1989 I concluded that, given that the amount in respect of which waiver had been sought by the Applicant had been recovered by the Commonwealth, there was no longer a recoverable debt in respect of which sub-section 70C(2) Audit Act 1901 could be applied."
A submission was made by the applicant that the power of the Minister for Finance under sub-s.70C(2) of the Audit Act had not been validly delegated to Mr Kennedy by reason of the circumstance that the instrument of delegation did not show on its face the date upon which it was signed by the Minister. In my opinion that submission must be rejected. If the matter became material, extrinsic evidence could be given as to the date of execution of the instrument. Mr Kennedy has given evidence that the delegation was in force at the time he made the decision on 12 December 1989. That evidence was not challenged and, taken with the instrument itself, is sufficient to establish Mr Kennedy's authority.
On 22 December 1989, Mr Kennedy signed a memorandum addressed to the Secretary, Attorney-General's Department reading as follows:
"I refer to your memorandum CSD89/7194 of 6 September 1989 in which you requested that favourable consideration be given to a proposal to waive recovery of an overpayment made to Mr L. Burridge. As the money in question has been withheld from Mr Burridge's final entitlements, it appears to us that there is no longer an 'amount payable to the Commonwealth' in respect of which sub-section 70C(2) of the Audit Act 1901 could be applied. If so, then there appear to be two ways in which the position could be restored in the way Mr Burridge wishes, if indeed restoration of that position is warranted: -an admission by the Commonwealth that recovery was illegal - in which case, section 37A of the Audit Act 1901 (allowing refunds from the Consolidated Revenue Fund) would come into play; and -if section 37A is not applicable, an act of grace payment could be made to Mr Burridge provided that the provisions of section 34A of the Audit Act 1901 were met. It is difficult to envisage circumstances in which an authorized person would be able to conclude that it was reasonable to approve a payment which would have the effect of paying someone twice for the one entitlement. It is our view that it is not possible to waive recovery of the overpayment made to Mr Burridge."
By letter dated 9 January 1990 addressed to the applicant by the Attorney-General's Department, the applicant was informed as follows:
"I refer to your application for waiver of overpayment of $5,743.73 pursuant to Finance Direction 24/22. As you are aware the Department of Finance has considered the departmental submission and has concluded that as the amount of the overpayment was withheld from your final entitlements consideration of your application for waiver of overpayment is no longer relevant or necessary. Given that recovery of the overpayment has been effected in accordance with Finance Direction 24/19 and that the circumstances of the case are such that this department is unable to support or even justify an application for an act of grace payment it is considered that no further action need be taken in this matter. Should you have any enquiries regarding the above please contact Ross Butler on 71 9145."
It is in these extraordinary circumstances that the applicant seeks an order of review under the Administrative Decisions (Judicial Review) Act in an endeavour to have a decision made by the Minister for Finance or his delegate upon the merits of his application that the overpayment of $5,743.73 be waived under Finance Direction 24/21 or 24/22. The decision taken by Mr Kennedy is surprising in the light of the decision taken a short time earlier by the Secretary to the Attorney-General's Department who did not regard the circumstance that the amount of $6,483.73 had been withheld from the amount payable to the applicant upon his retirement as precluding him from deciding that the overpayments which he was considering be waived. It is equally surprising that, as appears from the letter of 9 January 1990 addressed to the applicant by the Attorney-General's Department, that Department acquiesced, without demur, in Mr Kennedy's decision and informed the applicant that "no further action need be taken in this matter". It is even more surprising that the respondents should have persisted with an argument that there is no power to approve a waiver as requested by the applicant, an argument which, given the history of the matter, is completely lacking in merit. The argument having been relied upon, however, it must be considered.
Before doing so, however, I should notice, but only to reject, the submission made by counsel on behalf of the respondents that the Court lacked jurisdiction to entertain the application in so far as it related to the decision made by Mr Kennedy. In my opinion it is clear beyond argument that Mr Kennedy, in deciding that sub-s.70C(2) of the Audit Act provided no authority for him to consider and determine on its merits the application that payment of the sum of $5,743.73 be waived made a decision under an enactment which attracts the jurisdiction of this Court under the Administrative Decisions (Judicial Review) Act. The submission made on behalf of the respondents involves the proposition that, if the Court were to uphold the conclusion which Mr Kennedy formed, it would, in so doing, demonstrate a lack of jurisdiction to entertain the proceeding. That proposition is clearly erroneous.
The essence of the substantive argument advanced on behalf of the respondents is that, upon the deduction of the sum of $6,483.73 from the monies to which the applicant was entitled in consequence of his retirement, there was no longer any amount payable by the applicant to the Commonwealth within the meaning of those words in sub-s.70C(2) of the Audit Act. What was done was said to have amounted to a set off of one debt against another.
In my opinion, the argument, while exhibiting an aura of plausibility, is devoid of substance. What was done does not wear the complexion for which the respondents contend. An examination of the history of the matter discloses that, although the amount sought to be recovered was part of a larger amount paid to the applicant on 4 June 1986, no steps had been taken by the Commonwealth to recover the amount by legal process or to submit for the consideration of the appropriate authority the applicant's long standing application that re-payment of the amount be waived. It was only the imminent retirement of the applicant from the Australian Public Service that appears to have prompted any steps to reach agreement as to the amount to be re-paid. There followed the discussions in which the Industrial Officer of the Australian Government Lawyers Association represented the applicant's interests, discussions which resulted in agreement as to the amount to be re-paid. But it is clear that it was part of the arrangements made between the parties that there was to be a speedy resolution of the question whether re-payment was to be waived. The correspondence to which reference has been made is inconsistent with the suggestion that, by the Commonwealth withholding the amount of $6,483.73 from the amount payable to the applicant in consequence of his retirement, the applicant was to be treated as if he had made payment of that amount to the Commonwealth. It is expressly stated in the letter dated 15 March 1989 from the Attorney-General's Department to the applicant that the amount was being withheld "pending determination of your application for waiver of overpayment" and that, in the event that the waiver application was successful, the Department of Employment, Education and Training would "be responsible for payment of the withheld monies". Absent a decision upon the application for waiver, it cannot be correct to say that there has been a final appropriation by the Commonwealth of the withheld monies against the applicant's indebtedness to the Commonwealth. Pending a decision upon the waiver application, the indebtedness of the applicant to the Commonwealth was not to be regarded as having been discharged by payment. To borrow the language appropriate in another context, there has been an accord but no satisfaction. The final destination of the withheld monies was to await, and was to be dependent upon, the determination of the waiver application. In the special circumstances of this case, it is not an inappropriate use of language to say that, pending a decision upon that application, the amount in question answered the description of an amount payable to the Commonwealth within the meaning of those words in sub-s.70C(2).
In my opinion, the applicant is entitled to have the decision made by Mr Kennedy on 12 December 1989 set aside and to have a decision made by an appropriate authority upon the merits of his application for waiver.
I turn now to consider the second of the decisions in respect of which the applicant seeks an order of review, namely the decision made on 26 September 1989 concerning the amount properly payable to him by way of travelling allowance in respect of the period from 4 January 1988 to 22 June 1988 (both dates inclusive). It will be recalled that the applicant and his family arrived in Canberra on the earlier of those dates on transfer from the position he had held at Darwin within the Department of Employment, Education and Training to a position within the same Department that was located at Canberra.
The instrument of transfer provided for the applicant to be transferred to Canberra for an initial period of three months "pending permanent ACT move". Although it may well have been in the contemplation of both the Department and the applicant at that stage that the transfer was being arranged with a view to his being subsequently placed in a permanent position within the Department at Canberra, the applicant was not informed that his transfer was to be permanent and, indeed, nothing was done after the applicant took up duty at Canberra to make his transfer permanent. The applicant remained in the temporary position to which he had been transferred until 10 May 1988 when, by dint of his own efforts, he was able to take up duty in the Attorney-General's Department in a position, also located at Canberra, to which he was promoted, on a permanent basis, with effect from 23 June 1988. He remained in that position until he was retired from the Australian Public Service with effect from 10 March 1989.
Before referring to the circumstances surrounding the making of the decision on 26 September 1989, it will be convenient to refer to the provisions pursuant to which that decision was made.
At all material times, s.82D of the Public Service Act provided, inter alia, that the Public Service Board appointed under sub-s.11(1) might, by instrument in writing, determine the terms and conditions of employment of officers of the Australian Public Service. In exercise of that power, the Board had made a determination, identified as Determination 1983/10, and had amended that determination on a number of occasions. Part 4 of the Determination had the heading "Transfer and Living Allowances". Divisions 1 and 2 within that Part were headed respectively "Travelling and Meal Allowances" and "Temporary Accommodation Allowances". Within Division 1, clause 4.1.2 provided, by reference to a schedule to the Determination, for the rates of travelling allowance payable where an officer was required to be absent overnight from his or her headquarters on official business. The schedule, Schedule 1, prescribed, for different localities, rates in respect of accommodation expenses, meals and incidental expenses. Applying the schedule as it stood in January 1988, the amount that could be paid to an officer of the applicant's classification in respect of any one day was $89.00, being $45.00 for accommodation expenses, $36.00 for meals and $8.00 for incidental expenses.
Sub-clauses 4.1.2(6) and 4.1.2(8) provided:
"(6) After an officer has resided in the one locality for a period of 21 days, the officer is entitled to be paid an allowance equal to the amount expended by the officer on accommodation, sustenance and incidental expenses or, if the relevant Secretary is satisfied that the amount so expended is not reasonable having regard to the status of the officer and the purposes for which the officer is performing duty whilst absent from his headquarters, such amount as the relevant Secretary considers reasonable in the circumstances." "(8) Where proof is furnished to the satisfaction of the relevant Secretary that the allowance payable to an officer under this clause is either insufficient to cover, or in excess of, expenses which have been, or may be, reasonably incurred, the relevant Secretary may direct the payment in lieu of that allowance of such rate of allowance as is necessary to meet those expenses."
Clause 4.1.4 provided:
"An officer who is instructed to proceed to a station in anticipation of his permanent transfer thereto, and who has been notified in writing by the relevant Secretary that his transfer is to be made permanent, shall not be eligible to receive travelling allowance during his employment at that station."
An officer who was denied travelling allowance by the operation of clause 4.1.4 was, however, entitled to receive temporary accommodation allowances under clauses 4.2.4 and 4.2.5 within Division 2 of Part 4 of the Determination. It is unnecessary for present purposes to refer to the detail of those clauses.
The Department of Employment, Education and Training treated the applicant as being entitled, in respect of his transfer from Darwin to Canberra, to temporary accommodation allowances pursuant to clauses 4.2.4 and 4.2.5 of the Determination. An amount of $10,143.86 was paid to him, details of which are as follows:
From To For Amount 30 Dec 1987 3 Jan 1988 Settling Out $ 811.07 Allowance, as per cl. 4.2.4 of the Determination 4 Jan 1988 1 Feb 1988 Settling In Allowance, 4,335.64 as per cl. 4.2.5 of the Determination 23 Jan 1988 22 Jun 1988 Temporary Accommodation 2,130.86 Allowance as per clause 4.2.5 of the Determination 23 Jun 1988 3 Jan 1989 Temporary Accommodation 2,866.29 Allowance as per clause 4.2.5 of the Determination Total $10,143.86
On 22 November 1988, the applicant, pursuant to regulation 84 of the Public Service Regulations, sought an investigation by the Merit Protection and Review Agency into the question whether he had been paid the appropriate allowances. The Merit Protection and Review Agency concluded that, as the provisions of clause 4.1.4 of the Determination had not been satisfied, the applicant had not been paid the appropriate allowances and that he was entitled to travelling allowance under Division 1 of Part 4 of the Determination from the date of his arrival at Canberra until 22 June 1988 (both dates inclusive) and to temporary accommodation allowance under Division 2 of Part 4 of the Determination from 23 June 1988. The Department of Employment, Education and Training was informed of the outcome of the investigation by letter dated 7 September 1989.
Ross Anthony Butler, an officer of the Attorney-General's Department, calculated the amounts of travelling allowance and temporary accommodation allowance which he proposed to submit to the appropriate decision-makers as being the amounts to which the applicant should be entitled in accordance with the decision of the Merit Protection and Review Agency. In making the calculation of the travelling allowance payable in respect of the period from 4 January 1988 to 22 June 1988, Mr Butler had regard to Determination 1983/10 and to relevant provisions in volume 8 of the Personnel Management Manual. Volume 8 of that publication was described in the introduction to it as "a guide prepared by the Department of Industrial Relations to the administration of the acts, regulations, awards and determinations which authorise conditions of employment for staff of the Australian Public Service". The introduction continued:
"Volume 8 provides guidance on administrative practice; it is not the authority to apply conditions of employment and should therefore be read with the relevant authority. Generally, the text of an authority is not repeated in Volume 8."
It is established by the evidence that two editions of Volume 8 of the Personnel Management Manual were promulgated, the first in 1983 and the second in 1989. I am satisfied that, in making the calculations referred to, Mr Butler had regard to the second edition, being the edition current at the time he made the calculations. In pars 20 and 29 of his affidavit affirmed on 2 May 1990, Mr Butler deposed that, in making the calculations, he bore in mind, inter alia, the guidelines provided by certain sub-sections of the Personnel Management Manual. The copy of the guidelines annexed to the affidavit as Annexure "H" and referred to in par.29 of the affidavit was, in fact, a copy of provisions from the first edition of volume 8 of the manual. Although Mr Butler corrected this in his oral evidence, saying that the reference in par.29 to Order 8/C/12(h), a provision of the first edition of the manual, should be read as a reference to Order 8/C/20(h) of the second edition, the applicant sought to attribute a sinister motive to Mr Butler in referring in his affidavit to the earlier version. In my opinion, there was no warrant for such an imputation against Mr Butler and it was, I think, improper that it should have been made. There is ample evidence that it was to the second edition of the manual that Mr Butler had regard. It was not suggested by the applicant that he was incorrect in doing so and, in any event, the difference in the wording of the relevant parts of the two editions is not, so far as I can discern, of any significance for the purpose of the present case.
The second edition of volume 8 of the Personnel Management Manual was arranged in what were referred to as sub-sections and orders, the latter expression being, perhaps, hardly appropriate in view of their status. Sub-section 8/C was headed "Travelling Allowance". It described travelling allowance ("TA") as "a cost reimbursement allowance" and as providing for "reimbursement of reasonable living costs normally incurred by staff while absent from headquarters on official duty" (Order 8/C/1(b)). A general summary appeared in pars (c), (d) and (e) of Order 8/C/1 as follows:
"(c) For short periods of overnight absence from headquarters on official business, staff are paid a prescribed rate of TA for each complete day and part-day of absence - for the purpose of this sub-section, these are referred to as the 'daily' rates. Different rates of TA are prescribed in Schedule 1 to PSB Det 1983/10, depending on salary level and the centres to which staff travel. These rates have separate components for accommodation, meals and incidental expenses and are normally subject to annual review based on recommendations by a subcommittee of the Joint Council. The subcommittee surveys accommodation and meal costs at a wide range of representative establishments throughout Australia.
(d) Where the prescribed daily rates of TA do not cover reasonable living costs, departments may pay an additional allowance for reasonable excess costs, where considered justified (see Order 8/C/17).
(e) After staff have lived at a centre away from their headquarters for a continuous period of 21 days, from midnight of the 21st day of such residence the daily rate ceases and they are paid a reviewed rate of TA. This reimburses actual reasonable costs for accommodation and meals; a specified weekly incidentals component is also payable. Continued payment is subject to periodic review by departments."
Order 8/C/17 set out circumstances in which the daily rate of travelling allowance might be varied. Paragraph (f) of that Order provided:
"(f) Staff on temporary transfer for more than 21 days who remove their dependants to the temporary station may be eligible for an allowance under sub-clause 4.1.2(8) of PSB Det 1983/10 where the total cost of accommodation and meals less officer contribution (Order 8/C/21) is more than the total amount payable at the prescribed daily rate for the first 21 days of transfer."
Order 8/C/20 provided for the calculation of what was referred to as the "Reviewed Rate of Travelling Allowance". Paragraph (a) of that Order read:
"(a) Staff who have continuously lived at one centre away from their headquarters for 21 days are, following completion of that period, to be paid TA based on reasonable accommodation and meal costs. A specified weekly incidentals component rate is also payable. Where any amount paid for accommodation or meals is considered excessive, a lesser amount based on an assessment of what is reasonable may be reimbursed."
Paragraph (h) of Order 8/C/20 contained various tables setting out the method for calculating the reviewed rate of travelling allowance payable in the circumstances mentioned in Order 8/C/1(e). Relevant for present purposes is Part II of Table A which was in the following terms:
(TABLE OMITTED)
Of particular relevance for present purposes is that, according to the table, an officer with dependants whose normal situation at headquarters was that he owned or was buying his own home and who, at the temporary station, was renting accommodation was to be paid an allowance for rent but no allowance for "Meals bought separately" or for "Incidental expenses".
Order 8/C/21 was headed "Officer contributions" and provided:
"Officer contributions for TA are prescribed in Schedules 4 and 5 to PSB Det 1983/10 (non-SES) and Schedule 4 to PSB Det 1984/46 (SES) and referred to in Tables A and B of Order 8/C/20. They represent normal living costs (housing, food, fuel and power) that might be incurred by staff at headquarters had they not gone on temporary transfer. The contribution rates are derived from the ABS Housing Expenditure Survey and are normally reviewed each year. The principles set out in Order 9/0/18 ('Salary for Temporary Accommodation Allowance') should be applied as appropriate to salary for TA officer contributions."
The amounts which Mr Butler considered should be paid to the applicant by way of travelling allowance for the period 4 January 1988 to 22 June 1988 and by way of temporary accommodation allowance for the period 23 June 1988 to 10 March 1989 were respectively $8,286.79 and $3,239.00 making a total of $11,525.79. As there is no dispute between the parties as to the amount calculated by way of temporary accommodation allowance, no further reference to Mr Butler's calculation in that regard need be made.
The view was apparently taken that, as the applicant had continued to occupy, on a substantive basis, a position within the Department of Employment, Education and Training until 23 June 1988, a decision upon the amount of travelling allowance properly payable to him in respect of the period from 4 January 1988 to 22 June 1988 should be made within that Department. Shelley Joy O'Neill was an officer of the Department of Employment, Education and Training who was authorised, by delegation of the Secretary to that Department, to make decisions under sub-clauses 4.1.2(6) and 4.1.2(8) of Determination 1983/10. Accordingly, Mr Butler, on 26 September 1989, provided Miss O'Neill with details of his calculation of the amount of travelling allowance payable to the applicant in respect of that period and made certain recommendations to her in that regard.
In respect of the period from 4 January 1988 to 24 January 1988, Mr Butler considered that, as the applicant was accompanied by six dependants, the daily rate of travelling allowance ($89.00) was inadequate to cover his expenses. He recommended that the applicant's entitlement for that period "be determined in accordance with the provisions relating to travel allowance on review and that the increased rate be approved in accordance with sub-clause 4.1.2(8) of PSB Det. 1983/10". On that basis he calculated that an amount of $3,141.36 was payable in respect of that period, some details of the calculation being as follows:
4-7 January 1988 (4 days)
Accommodation at $66 per night $ 264.00 Meals at $764.50 per week 436.86 8-24 January 1988 (17 days)
Accommodation 1,320.00 Meals at $764.50 per week 1,856.64 Rent, 2 days (23/24 January) at $185.00 per week 52.86 3,930.36 Less officer contribution (Schedule 5, PSB Det. 1983/10) - 21 days at $263.00 per week 789.00 Travel allowance payable 4-24 January 1988 $3,141.36
In respect of the period from 25 January 1988 to 1 February 1988, Mr Butler calculated the reviewed rate of travelling allowance as follows:
Accommodation (8 nights at $76 per night) $608.00 Meals at $764.50 per week 873.71 Rent, 8 days at $185.00 per week 211.43 1,693.14 Less officer contribution - 8 days at $263.00 per week 300.57 $1,392.57
In making the above calculations, Mr Butler selected as an appropriate rate by reference to which he calculated the allowance to be made for meals for the applicant and his family the weekly rate ($139.00) for the provision of meals and foodstuffs for an adult specified in Schedule 5A to Public Service Determination 1983/10, a rate relevant in certain circumstances to the calculation of temporary accommodation allowance payable to an officer.
It also appears from Mr Butler's calculations that the amount shown for rent in respect of the period from 23 January 1988 to 1 February 1988 was included on the basis that the applicant was required to pay rent on premises leased by him but which he could not occupy until 2 February 1988 because his furniture had not arrived from Darwin.
In respect of the period from 2 February 1988 to 22 June 1988, Mr Butler recommended that an amount of $3,752.86 be paid representing rent at $185.00 per week for 20 weeks 2 days. The issue between the parties centres on the amount properly payable in respect of this period, the applicant contending that, in addition to the amount of $3,752.86 for rent, he was entitled to receive what he referred to as "a meal component and incidental expenses". In the light of that contention, what Mr Butler set out in this regard in the document provided to Miss O'Neill should be reproduced in full. That part of the document reads:
"Reviewed Rate of Travel Allowance - Renting Before calculating this part it is important to establish whether Mr Burridge should be considered to be a home owner or home renter at headquarters. There are very good reasons for considering Mr Burridge to be a home renter at headquarters (not the least of which is that Mr Burridge was renting accommodation in Darwin well before his temporary transfer to Canberra). If Mr Burridge is considered to be a home owner at headquarters the Department will in effect be paying his entire rent for the period February 2 to June 22. If considered to be a home renter in Darwin Mr Burridge will be eligible for rent paid in Canberra less rent that would have been paid in Darwin. Whilst this is no doubt the most fair way to proceed, the case would no doubt be argued by Mr Burridge that he should be regarded as a home owner at headquarters given the nature of advice provided to him by the Assistant Secretary Personnel and Services Branch, DEET (folio 28 P/F Part 5 refers). This would, in turn, involve more time consuming research of Mr Burridge's case and possibly further submissions to the MPRA by DEET. In view of this I consider that it may be a less costly decision in the long run to regard Mr Burridge to be a home owner at headquarters for reviewed travel allowance purposes. Calculations have been prepared on that basis. Period 2.2.88 - 22.6.88 (20 weeks 2 days) Rent Paid at $185.00 p.w. = $3752.86."
In his affidavit affirmed on 2 May 1990, par.29, Mr Butler stated:
"29.Having regard to the fact that the Applicant's transfer to Canberra had been arranged with a view to the Applicant being ultimately appointed to a permanent position in Canberra and having regard to the fact that the Applicant, together with his furniture, had moved into rented premises on 2 February 1988 and having regard to Part II of Table A to Order 8/C/12(h) in the PMM (a copy of which appears in Annexure 'H' to this Affidavit), I was satisfied that it was no longer reasonable to pay an allowance to the Applicant in respect of meals for himself and his family. Accordingly, I recommended that in respect of the period after 2 February 1988 no amount be included for meals in the calculation of TA."
I have already referred to the oral evidence given by Mr Butler that the reference to Order 8/C/12(h) should be read as a reference to Order 8/C/20(h), the corresponding provision contained in the second edition of the Personnel Management Manual.
In cross-examination Mr Butler said that he gave consideration to the question whether the applicant should be paid a meal component in respect of the period 2 February 1988 to 22 June 1988 and in that regard considered Order 8/C/20(a) and Part II of Table A referred to in Order 8/C/20(h). He said that, although there was room under Order 8/C/20(a) for the discretionary approval of amounts outside those provided for in Part II of Table A, he had determined it appropriate to use Part II of that table to determine the applicant's entitlement and that was the basis on which his calculations had been made.
I am satisfied that Mr Butler approached the task of calculating the amount of travelling allowance payable to the applicant on the basis that his entitlement was to be determined in accordance with the provisions of Determination 1983/10 and that the provisions contained in volume 8 of the Personnel Management Manual had no higher status than guidelines for the assistance of those implementing the Determination.
I also accept that, in making the calculation of the amount payable in respect of the period 2 February 1988 to 22 June 1988, he applied the provisions set out by way of guidelines in Part II of Table A referred to in Order 8/C/20(h) of the Personnel Management Manual, he being satisfied that there were no special circumstances in relation to the applicant which made the provisions of that Table inapplicable. I have some difficulty, however, with the assertion made in par.29 of his affidavit that he "recommended that in respect of the period after 2 February 1988 no amount be included for meals in the calculation of TA". The difficulty arises from the fact that the document provided to Miss O'Neill by Mr Butler, the relevant part of which is set out earlier in these reasons, contains no recommendation expressed in terms of the language used in par.29 of the affidavit. Indeed, the document makes no reference, in respect of the relevant period, to the question whether the applicant was, or was not, entitled to an allowance for meals in addition to the allowance recommended in respect of rent.
The matter then came before Miss O'Neill for decision. In her affidavit sworn on 15 May 1990, Miss O'Neill stated:
"5.On 26 September 1989 and pursuant to sub-clause 4.1.2(8) of the determination, I approved variation of the daily rate of TA payable to Mr Burridge for the period 4 January 1988 to 24 January 1988 (inclusive), such that the total sum of TA payable to Mr Burridge for that period was $3,141.36. On that same day and pursuant to sub-clause 4.1.2(6) of the Determination, I approved variation to the daily rate of TA payable to Mr Burridge for the period 25 January 1988 to 22 June 1988 (inclusive), such that the total sum of TA payable to Mr Burridge for that period was $5,145.43. 6.In reaching the two above-mentioned decisions I had regard to:
(a) the recommendations and
calculations of Mr Ross Butler and the reasons therefor:
(b) the Determination and the Schedules thereto;
(c) the guidelines laid down in Order 8/C/20 of Volume 8 of the Personnel Management Manual;
(d) the fact that Mr Burridge had, prior to his arrival in Canberra in January 1988, been a home owner in Darwin;
(e) the fact that Mr Burridge had arrived in Canberra from Darwin in January 1988 with his wife and five children, aged 12, 10, 8, 6 and 4 years; and
(f) a memorandum from the Director of the Merit Protection and Review Agency dated 7 September 1989, which is annexed hereto and marked with the letter 'C'."
Miss O'Neill informed Mr Butler of her decision by letter dated 26 September 1989. By letter dated 12 October 1989, Mr Butler informed the applicant of that decision as well as the decision taken upon the amount payable by way of temporary accommodation allowance in respect of the period from 23 June 1988 to 10 March 1989. A cheque for the difference ($1,381.93) between the amount so found to be payable ($11,525.79) and the amount previously paid ($10,143.86) was enclosed with the letter.
Miss O'Neill was cross-examined and it is necessary to refer to the answers she gave to some of the questions put to her. The comment must, however, be made that, in evaluating her evidence, it must be borne in mind that many of the questions put to her lacked clarity and precision and were put to her in a very confusing way. Miss O'Neill agreed that no component for meals or incidental expenses had been paid in respect of the period from 2 February 1988 to 22 June 1988. Asked what attention she had given to the payment of such allowances in respect of that period, Miss O'Neill said:
"Now, guidelines laid down to assist delegates such as myself when calculating these types of allowances. Now without going in to too much detail, regard is given to the transferee situation when they transfer to their temporary locality. And as Mr Burridge had been accompanied by his dependants it is considered that it is not appropriate to pay sustenance for meals and incidentals, as Mr Burridge is not being disadvantaged from being separated from his family and have to maintain two separate households."
She denied that, in making her decision, she had failed to take into account the terms of clause 4.1.2(6) of Determination 1983/10. She agreed that, in conveying her decision to Mr Butler by letter dated 26 September 1989, she had not made any reference to that clause but said that was simply an oversight on her part. She reiterated that she formed the view that the applicant was not, in his situation, entitled to an allowance for meals and incidentals. She agreed that she had regard to volume 8 of the Personnel Management Manual, referring particularly to Order 8/C/20 and Part II of Table A which she said "acts as a guideline in determining calculations of this nature". In answer to a further question, she said that there was "provision for meals to be paid but not for someone in (the applicant's) circumstances". Asked how she applied Part II of Table A, Miss O'Neill answered:
"Table A, Part II, looking at the left hand column, 'normal situation at headquarters' Mr Burridge was determined to be owner at headquarters. Looking across, his situation at the temporary station was renting so he receives reimbursement for rent. Looking down, it says 'additions' which include meals and as Mr Burridge was with his dependants at this temporary station no additional meals or incidentals are recommended to be paid, as he was not being disadvantaged in being separated from his dependants at headquarters. He had his family with him and he would normally have been buying meals in that situation."
The applicant drew Miss O'Neill's attention to the circumstance that volume 8 of the Personnel Management Manual described the provisions contained in each sub-section as being "orders" and elicited the following answers:
"Q.Did you take the references to an order such as that to be of binding effect?
A.In what regard?
Q.That you were bound to follow those provisions in that they were authoritative? A.Yes."
I accept Miss O'Neill's evidence as establishing that, in reaching her decision, she had regard both to the terms of Determination 1983/10 and the provisions of the Personnel Management Manual. I also accept that, although she applied the guidelines set out in volume 8, Order 8/C/20 and Table A, Part II of the manual, she did not do so without having formed the opinion that it was appropriate to do so, taking account of the applicant's situation. In this regard, it is of significance that the applicant had put no material before either Mr Butler or Miss O'Neill designed to show that, in respect of the period in question, his was an exceptional case warranting the payment of an allowance in addition to the allowance for rent. I do not regard Miss O'Neill's affirmative answer to the question whether she was bound to follow the guidelines in that they were authoritative as militating against the finding I have made as to the manner in which she approached the decision-making process.
Although the applicant framed his submissions by reference to a number of the grounds set out in s.5 of the Administrative Decisions (Judicial Review) Act, he has failed to satisfy me that he is entitled to have the decision made by Miss O'Neill on 26 September 1989 set aside.
The decision made by Mr Kennedy on 12 December 1989 that sub-s.70C(2) of the Audit Act provided no authority for him, as a delegate of the Minister for Finance, to consider and determine upon its merits the application by the applicant that the right of the Commonwealth to the payment to it by him of an amount of $5,743.73 be waived is set aside. I direct that the Minister or his delegate consider and determine, on its merits, the unresolved application for waiver. I strongly recommend that, if the matter is not considered and determined by the Minister, it be considered and determined by a delegate who has not been previously associated with the matter. Otherwise the application is dismissed.
In all the circumstances, I think it is appropriate that the respondents pay two-thirds of the applicant's costs of the application.
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