Cloros And Secretary, Department of Social Services
[2014] AATA 300
•15 May 2014
[2014] AATA 300
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1699
Re
Jonathon Cloros
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
WRITTEN REASONS FOR ORAL DECISION
Tribunal Senior Member N A Manetta
Date 28 April 2014 Date of written reasons 15 May 2014 Place Adelaide For the reasons given orally at the directions hearing of this matter, the Tribunal decides that it does have jurisdiction to hear this application for review to the extent the applicant seeks the setting aside of the directions and recommendation of the Social Security Appeals Tribunal; but the Tribunal further decides that it does not have jurisdiction in these proceedings to hear any challenge by the applicant to the debt that has been recalculated in accordance with the Social Security Appeals Tribunal’s directions and recommendation.
.........................[Sgd]...............................................
Senior Member N A Manetta
CATCHWORDS
PRACTICE AND PROCEDURE - jurisdiction - oral decision - whether Tribunal has jurisdiction to consider the directions of the SSAT
LEGISLATION
Social Security Act 1991
Social Security (Administration) Act 1999
CASES
Aslanidis v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 429
Davey v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 888
Shannon Realities Ltd v Ville de St Michel [1924] AC 185Australian Institute of Marine and Power Engineers v Secretary, Dept of Transport (1986) 13 FCR 124
WRITTEN REASONS FOR ORAL DECISION
Senior Member N A Manetta
15 May 2014
These written reasons, which were prepared at the request of both parties after my oral decision was delivered, address a question of jurisdiction argued before me, where the Respondent contends that the Tribunal has no jurisdiction to hear the application filed in this matter.
RELEVANT FACTS
In respect of the question of jurisdiction, the relevant facts may be summarised as follows. The Applicant, Mr Jonathon Cloros, seeks review of a decision of the Social Security Appeals Tribunal (SSAT). The Respondent initially sought recovery of more than $10,000 from Mr Cloros on account of what is alleged to be repeated failures by him to declare earnings from various jobs he had between 9 July 2005 and 28 September 2007.
Mr Cloros has represented himself and has been difficult to follow on occasion. To some extent, I have had to extrapolate the grounds of his application to the Tribunal. His written application says little about the nature of his objection to the SSAT’s decision.
As I understand Mr Cloros, he disputes that he failed to declare his income. He claims that the Respondent’s Department failed through its own administrative error to take note of the income when it was duly reported by him; that, in all the circumstances of the case, it is unfair for any debt to be recovered; and that the debt should be waived.
Mr Cloros appealed to the SSAT against the initial decision to raise a debt against him and argued the question of waiver. The SSAT ruled against Mr Cloros on this very issue: see [66]-[68] of its reasons. Nevertheless, it set aside the decision made to raise a debt against him of more than $10,000. It was of the view that the Respondent’s case was “plagued with findings lacking any evidentiary support” and “with findings that [were] inconsistent” with the evidence adduced before it: see at [65]. In short, the SSAT was not satisfied that the amount said to be owed by Mr Cloros was in fact owed in its entirety.
The SSAT clearly formed the view, however, that Mr Cloros’ submissions in respect of waiver, based as they were on his assertion that he had duly reported his income, should be rejected. The SSAT found that on a number of occasions he had either not declared, or under-declared, income, and that the debt should not be waived: see at [63] and [66]-[68].
The SSAT’s formal order was to set aside the decision and to remit the matter to the Chief Executive of Centrelink with directions and a recommendation: see at [78]. Broadly speaking, the directions may be said to require a recalculation of the debt based on a more thorough and accurate assessment of Mr Cloros’ income.
Mr Cloros now challenges the SSAT’s directions. As I understand him, he wishes to argue that it was unnecessary for the SSAT to direct further findings in respect of the level of his debt. He says no directions should have been made given his declaration of earnings: the order setting aside the departmental decision ought to have been made without any directions at all. He asks this Tribunal, therefore, to set aside the directions made by the SSAT.
If the Tribunal were to set aside the SSAT’s directions, the SSAT’s order to set aside the Respondent’s decision would stand unqualified and Mr Cloros would owe nothing to the Respondent.
AAT’S JURISDICTION
The question of the Tribunal’s jurisdiction to set aside the SSAT’s directions was raised at a directions hearing. It has been argued as a preliminary point. The question is whether Mr Cloros can challenge the directions to have the debt recalculated in circumstances where the Respondent’s decision was set aside. I was informed the debt has now been recalculated at a substantially lower level.
Uninformed by previous decisions of this Tribunal, I would answer the question I have just posed “yes”. Section 179(2) of the Social Security (Administration) Act 1999 (the Administration Act) provides that in a case where a decision is set aside by the SSAT with a direction or recommendation, “the decision” that may be challenged in this Tribunal (presumably by either party) is the direction or recommendation; but I infer no challenge may be brought to the SSAT’s order to set aside the Respondent’s decision.
I do not see why Mr Cloros could not ask this Tribunal (hearing the matter afresh on the evidence Mr Cloros wishes to adduce) to set aside the SSAT’s directions. The SSAT has expressly considered the question of waiver and ruled against Mr Cloros. Precisely because it ruled against him on this question, the SSAT decided to make directions concerning a recalculation of the debt. The SSAT would not have made those directions had Mr Cloros been successful in his argument that the debt should be waived altogether, whatever its level.
At this stage, on a preliminary point concerning the Tribunal’s jurisdiction before any evidence is taken, I think it is appropriate to assume in Mr Cloros’ favour that he could persuade the Tribunal that he has duly declared all his income. I should also note that Mr Parker, appearing for the Respondent, very fairly submitted that if the Tribunal were to hear the application on its merits and to accept that Mr Cloros had declared his income, the Respondent would waive the recalculated debt.
In these circumstances, and, as I say, uninformed by authority, I would hold that Mr Cloros’ application to have the SSAT’s directions set aside falls within the jurisdiction of this Tribunal even though a new, recalculated debt now exists.
Mr Parker drew my attention, however, to decisions of this Tribunal that he submitted were against this view. The first decision is Aslanidis v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 429.
I believe, however, that this decision is distinguishable. In Aslanidis, the SSAT had not formed a final view on whether the debt said to be owed by the Aslanidises should be waived or written off. The SSAT had, rather, during the course of its hearing discovered that there was, potentially, a further $56,000 that had not been taken into account by the Department. The SSAT believed this amount might represent a further overpayment to the Aslanidises. In these circumstances, the SSAT decided to set aside the decision and remit the matter to Centrelink for recalculation of the debt. It is true that the SSAT had expressed its view on the question of whether the amount of debt should be waived or written off were the amount of debt to remain the same; but the point of its direction was to require recalculation with reference to significant new information.
The amount in question was, indeed, recalculated upwards in the event. The Aslanidises challenged the SSAT direction to recalculate the debt before this Tribunal. In ruling against jurisdiction, this Tribunal stressed that the question of waiver or write-off raised by the Aslanidises was not one that had been determined by the SSAT: see at [25].
The Tribunal concluded at [29] that it lacked jurisdiction to consider the question of whether “in the context of the debts as recalculated the debts should be waived or written off”.[1] The Tribunal specifically rejected the contention that the SSAT had intended to decide that question formally. In this connection, I would refer to s.181 of the Administration Act, which prevents the AAT from reviewing a decision not reviewed by the SSAT.
[1] My emphasis.
The facts in Aslanidis’ case stand in contrast with the decision that has been reached by the SSAT in Mr Cloros’ case. As I have said, Mr Cloros’ claim that he had declared all income was specifically considered and rejected by the SSAT. The SSAT decided that there was no basis for a waiver or write-off of the debt that he owed, whatever its true level, because “the evidence suggests that the debt that exists is attributable to Mr Cloros not reporting his income correctly”: see at [66]. I do not think my decision is inconsistent with Aslanidis and I do not mean to question the decision in that case.
Mr Parker also drew my attention to Davey v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 888, to which the Tribunal refers in Aslanidis. I accept that the statement of principle in Davey does appear to be at odds with my conclusion. I note, however, that the applicants in Davey were self-represented, and I assume the Tribunal did not have the benefit of a reasoned contrary argument concerning what is a quite technical jurisdictional point. That leads me to place a little less weight upon it as an authority than I might otherwise. I accept that the Tribunal in Aslanidis referred to Davey with apparent approval, but I have already indicated that the facts in Aslanidis are distinguishable in my opinion.
Finally, I would refer to what I believe is an important contextual aspect relevant to the interpretation of s 179(2) of the Administration Act. The Social Security Act 1991 and Administration Act together comprise “beneficial legislation”. Appeals to the SSAT and this Tribunal are particular remedial provisions existing within the body of that beneficial legislation. Such provisions should be construed broadly in my opinion and with “no penchant for technicality”, as his Honour Justice Gummow of the Federal Court (as he then was) indicated in a different context: see Australian Institute of Marine and Power Engineers v. Secretary, Dept of Transport (1986) 13 FCR 124 at 130.
I am also struck by the great inconvenience, on the opposite view, of requiring Mr Cloros to raise his grievance by way of a new challenge through the appeals system to the SSAT and only then to this Tribunal. If, as appears to be the case, his grievance concerns waiver and not the recalculation of the debt, it makes little sense for him to be required to re-agitate the question before the Respondent’s delegate and the SSAT. The SSAT has already ruled against him on this question. An interpretation entailing that inconvenient− and, indeed, time-wasting− consequence should not be preferred in my opinion. An interpretation of the appeals provisions that is “consistent with the smooth working of the system which the statute purports to be regulating” is to be preferred to one “which will introduce uncertainty, friction or confusion into the working of the system”. I borrow these words from the Privy Council’s decision in Shannon Realties Ltd v. Ville de St Michel [1924] AC 185 at 192‑193.
For these reasons, I conclude that in the circumstances of this case the Tribunal has jurisdiction to determine whether Mr Cloros has fully disclosed his earnings to the Respondent. His application for review of the SSAT’s directions can proceed on this basis.
I should make clear that the Tribunal will not hear a challenge to the recalculated debt if Mr Cloros seeks to argue that matter. In this case, I conclude that a review of the recalculated debt would fall outside my jurisdiction when I come to review the SSAT directions to Centrelink to recalculate the debt.
I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta .......................[Sgd]...........................................
Administrative Assistant
Dated 15 May 2014
Date(s) of hearing 3 March & 28 April 2014 Applicant In person Advocate for the Respondent Mr A Parker Solicitors for the Respondent Department of Human Services
5
3
1