Chamberlain v Law Society of the Australian Capital Territory

[1993] FCA 527

IN THE FEDERAL COURT OF AUSTRALIA	)
WESTERN AUSTRALIAN DISTRICT REGISTRY	) No. WAG37 of 1993
GENERAL DIVISION	)

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:  SECRETARY. DEPARTMENT
OF SOCIAL SECURITY

Applicant

IVAN SARACIK

Respondent

B:	Jenkinson, Lee and O'Loughlin JJ.
W:	Perth
DATE:	22 July, 1993

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The respondent's costs of the appeal (including costs reserved) be paid by the appellant.

NOTE:	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA	)
WESTERN AUSTRALIAN DISTRICT REGISTRY	) No. WAG37 of 1993

GENERAL DIVISION 1

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:  SECRETARY, DEPARTMENT
OF SOCIAL SECURITY

Applicant

IVAN SARACIK

Respondent

W:  Jenkinson, Lee and OfLoughlin JJ.

m: Perth

DATE :

- 22 July, 1993

REASONS FOR JUDGFENT

JENKINSON J.

The court finds itself in a position to be able to
give judgment now. Before I say anything about the matters

debated between the parties I should make reference to the

the money in issue here had been paid by the respondent before	fact that, as the Administrative Appeals Tribunal observed,
the processes of administrative review commenced. The Tribunal made the observation, in the course of giving its reasons, that that fact does not, of course, prevent the Tribunal waiving the debt and thereby restoring his entitlement to be reimbursed the amount so paid. The Tribunal then refers to a decision of the Tribunal, re B i d d e l l and
S e c r e t a r y , Deoartment of S o c i a l S e c u r i t y , a decision made in
1991. The parties in this case did not debate the correctness of that statement and none of their submissions require any expression of opinion by me as to the correctness of the statement, and I merely say that I am not expressing any opinion about it.
Turning to the subject matter of the appeal : the appellant submits that the debt in question here was not "a debt under the 1947 Act", within the terms of paragraph (a) of section 1235 of the Social Securitv Act 1991, and that accordingly the power of waiver conferred by section 1237 of that Act was not available in relation to this debt. In my opinion the debt was within the meaning of that expression in paragraph 1235(a). It is to be observed that the 1947 Act, the Social Securitv Act 1947, does contain a definition of the expression "assurance of support debt", and sub-section 246(2A) makes provision with respect to such a debt. Sub- section 246(2A) is concerned with circumstances that have no application to the facts of this case. It is concerned with a
debt is also a person receiving or entitled to receive a situation in which the person owing an assurance of support
pension or benefit or allowance under the Act other than a funeral benefit. The sub-section provides that the amount of the debt in those circumstances shall, unless the secretary takes action under sub-section 251(1) in relation to the debt, be deducted from the pension by reducing each payment of the pension by a certain proportion. Sub-section 251(1) is a provision authorising the Secretary on behalf of the
Commonwealth to decide to write off debts of certaln klnds specified in paragraph (a), (b) and (c) of that sub-section. We are not concerned with (a), but (b) and (c) authorise the Secretary to decide to:

"(b) waive the rlght of the Commonwealth -

(i)    to recover from a person the whole or a part of a debt that is payable by the person under or as a result of this Act; or

(ii)  to recover debts under or as a result of this Act included in a class of debt specified by the minister by notice in writing published in the gazette; or

(c) allow an amount that is payable by a person to the Cornonwealth under or as a result of this Act to be paid in instalments.

The S o c i a l S e c u r i t v A c t 1947 is therefore seen to be itself treating an assurance of support debt as a debt that is payable "under or as a result of this Act". When one turns back to section 1235(a) of the 1991 Act, in my opinion one

makes a provision. On that reading the assurance of support	as comprehending any debt in relation to which the 1947 Act should understand the expression "under the 1947 Act" therein
debt is one which falls within that definition. An indication of the sense in which the words in paragraph 1235(a) are intended may be thought to be derived from a comparisoc between the words in paragraph (a) and the words in paragraph (aa), although, of course, there is danger in expounding a legislative phrase by reference to another phrase later introduced. Paragraph (aa) refers to a debt recoverable by the Commonwealth under Part 5.2 of the 1991 Act. That draws the mind to a recognition that an expression such as "under an Act" does not necessarily require for its satisfaction that the debt owe its existence or its recoverability to the Act referred to.
If it be the case, as in my opinion it is, that the assurance of support debt is within that paragraph of section 1235, then the power to waive is conferred by section 1237 and the Administrative Appeals Tribunal, on its review, had the authority to review the decision of the Social Security Appeals Tribunal in respect of that latter Tribunal's decision to waive. It is undeniable, and I think accepted, that in consequence of the decision of the Full Court of this court in Gail Riddell v . The Secretary to the Deuartment of Social Securl ty (unreported, judgment 3 June 1993), the
Administrative Appeals Tribunal was exercising the
discretionary power under the erroneous impression that it had to take into account certain directions given by the Minister
in exercise of a function conferred upon him by sub-section 1237(3). Of course, the Tribunal's decision was given before
the decision of the Full Court, but plainly, the Full Court having decided that those directions by the Minister were an ineffective and hence invalid attempt to exercise the power conferred by sub-section 1237(3), the decision of the Administrative Appeals Tribunal was marred by error of law.

That brings this court, if I am right so far, to

determine what in all the circumstances is the appropriate order to be made in disposition of the appeal. Counsel for the appellant submitted that in several respects there were other errors of law disclosed by the reasoning of the Tribunal in its reasons for decision touching the exercise of the discretionary power. It is extremely difficult to identlfy any such an error with any confidence simply because the whole of the reasoning was under the influence of the Minister's determination and the Tribunal was paying close attention to at least one of those directions by the Minister. I have considered carefully the arguments advanced in support of the submission that what one might call an independent error of law was to be discerned in the reasoning of the Tribunal, but I have been unable to find such an error. In those circumstances one turns to the question as to whether it is possible to say with certainty that the Administrative Appeals Tribunal would inevitably come to the same conclusion were it to reconsider this matter free of the mistaken notion that there was a ministerial determination to be taken into

account. In my opinion it is possible to come to that

conclusion, that is to say, that one can see from the reasons of the Tribunal that, disabused of the notion that the determination existed in law and had to be taken into account, the Tribunal would inevitably come to the same conclusion, that the decision of the Social Security Appeals Tribunal should be affirmed. In those circumstances I would propose that the appropriate order, so far as this court is concerned,

is simply to dismiss the appeal.

I certify that this and the 5 preceding pages are a true copy of the Reasons for Judgment of the Honourable Mr. Justice Jenkinson.

Associate

r
'd

Dated: 22 July, 1993

IN THE FEDERAL COURT OF AUSTRALIA	)
WESTERN AUSTRALIAN DISTRICT REGISTRY	) No. WAG37 of 1993
GENERAL DIVISION	)

ON APPEAL FROM THE ADMINISTRATIVE AFPEALS TRIBUNAL

BETWEEN:  SECRETARY. DEPARTMENT
OF SOCIAL SECURITY

Applicant

IVAN SARACIK

Respondent

a:	Jenkinson, Lee and O'Loughlin JJ.
PLACE:	Perth
DATE:	22 July, 1993

REASONS FOR JUDGMENT

LEE J.

I agree with the reasons expressed by the learned

presiding judge and with the orders he proposes and I have

nothing further to add. I certify that this page is a true	copy of the Reasons for Judgment of
the Honourable Mr. Justice Lee.
Dated: 22 July, 1993

JUDGES' CHAMBERS
FEDERAL COURT OF AUSTRALIA
450 LITTLE BOURKE STREET

-L AUSTRALIA k

*>)3>>\%x<<<cccL MELBOURNE. 30M)

5 August, 1993

Ms. Jan Costello,
Principal Registry,
Federal Court of Australia,
Level 16,
Law Courts Building,
Queens Square,

SYDNEY. N.S.W. 2000.

Dear Ms. Costello,

Re: Computerised Leaal Information Retrieval System

I enclose the following word processing disk (judgment included) for inclusion in the data base of Federal Court Judgments.

1.   Secretary, Department of Social Security v. Ivan Saracik - WAG37 of 1993 - Full Court - Jenkinson, Lee and OfLoughlin JJ. - Perth - 22 July, 1993.

Please return the disk when finished with for further use.

Yours faithfully,

Lois Bendall

Secretary to Mr. Justice Jenkinson