Commissioner of Taxation v Dixon

[2006] FCA 1520

FEDERAL COURT OF AUSTRALIA

Ilba v Secretary, Department of Employment and Workplace Relations
[2006] FCA 1520

Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)
Social Security Act 1947 (Cth) s 156
Social Security Act 1991 (Cth) s 1184K
Federal Court Rules O 20, r 2  

Re Krzywak v Secretary to the Department of Social Security (AAT 4614, 9 September 1988) referred to
Groth v Secretary, Department of Social Security (1995) 40 ALD 541 referred to

EDWARD ILBA v SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
SAD 154 OF 2006

BESANKO J
15 NOVEMBER 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 154 OF 2006

BETWEEN:	EDWARD ILBA Applicant
AND:	SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	15 NOVEMBER 2006
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 154 OF 2006

BETWEEN:	EDWARD ILBA Applicant
AND:	SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Respondent

JUDGE:	BESANKO J
DATE:	15 NOVEMBER 2006
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application by notice of motion by the respondent seeking an order dismissing an appeal by Mr Edward Ilba from a decision of the Administrative Appeals Tribunal. On Mr Ilba’s application for review, the Tribunal decided to affirm the decision under review. Mr Ilba’s appeal to this Court is limited to an appeal on a question of law: s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). I will refer to Mr Ilba as the appellant and the Secretary, Department of Employment and Workplace Relations as the respondent.

   The facts

2. The appellant sustained a work-related injury on or about 10 May 1985.  He made a claim in relation to the injury. Between 10 May 1985 and 17 May 1989 the appellant and his partner received the sum of $13,349.10 by way of sickness benefits and unemployment benefits. On 17 May 1989 the appellant settled his claim for compensation for an amount of $70,000. Of this amount, $13,349.10 was paid directly to the then Department of Social Security, and the balance was forwarded to the appellant’s solicitors.

3. On 22 March 2005 the appellant wrote to the respondent referring to the amount paid to the then Department of Social Security, and asking for that money to be repaid to him. The appellant asserted that since 1991 he had been ‘harassed’ by Social Security and Centrelink. The respondent considered that the appellant’s letter was a request for a review of the original decision to recover the amount of $13,349.10, and notified the appellant of this by letter dated 6 June 2005. On 6 September 2005 an officer of the respondent wrote to the appellant advising him that the moneys would not be refunded. The appellant replied to this letter and asserted that the respondent was ‘liable to pay the money back immediately plus the interest from the day the money has been deducted’. The respondent treated this reply as a request for review by the respondent’s authorised review officer. On 4 October 2005 an authorised review officer decided that the decision being reviewed was the decision in 1989 to recover the sum of $13,349.10. The decision of that officer was that no part of that amount would be refunded to the appellant. On 4 October 2005 the respondent sent a notice to the appellant informing him of the review officer’s decision and the reasons for that decision.

4. The appellant appealed to the Social Security Appeals Tribunal. That Tribunal conducted a hearing on 17 March 2006 and it decided that the decision under review should be affirmed. On 3 March 2006 the appellant filed an application with the Administrative Appeals Tribunal seeking a review of the decision. On 16 August 2006 the Administrative Appeals Tribunal made an order affirming the decision under review.

5. On 21 August 2006 the appellant filed a notice of appeal to this Court. He stated that the questions of law raised on the appeal are as follows:

   ‘1.       Failed to take note of the special circumstances of the case.

   2.        Failed to give enough weight to the special circumstances of the case.’

6. The appellant identified the orders sought as follows:

   ‘3.       Payment of twice the sum recovered in 1989.

   4.The manner of handling this matter by Centrelink has been unacceptable.’

   The decision of the Tribunal

7. The Tribunal member identified the facts as set out above. He said that it had been agreed between the parties, and, further, having regard to the evidence put before him he found, that Centrelink acted lawfully and otherwise correctly in recovering an amount of $13,349.10 paid to the appellant and/or his partner in the form of ‘compensation affected payments’ between 9 November 1987 and 6 January 1989. He identified the issue before him as whether Centrelink was required to pay to the appellant double the sum recovered in 1989 or any other sum. He noted that the appellant did not detail in evidence before him the nature and extent of the harassment he suggested that he experienced from Centrelink since about 2003.

8. The Tribunal member said that once moneys have been determined to be recoverable by Centrelink after having been paid in the form of compensation effected payments, then the only way in which he could see that those moneys could be returned to the appellant would be through the favourable exercise of a discretion which, at the time the moneys were paid, was contained in s 156 of the Social Security Act 1947 (Cth) and were now to be contained in s 1184K of the Social Security Act 1991 (Cth). The Tribunal member noted that these sections gave the Secretary the power to treat the whole or part of a payment by way of compensation that has been, or that will be, made as not having been made or is not likely to become liable to be made if the Secretary considered it appropriate to do so in the special circumstances of the case.

9. The Tribunal member referred to two authorities which had considered the nature of this discretion. He referred to Re Krzywak v Secretary to the Department of Social Security (AAT 4614, 9 September 1988) and Groth v Secretary, Department of Social Security (1995) 40 ALD 541. The Tribunal member said that, in the appellant’s circumstances, the consequence of the compensation legislation was as intended, that is to say, that neither the appellant nor Mrs Ilba should retain compensation and compensation effected Centrelink payments. He noted that the appellant argued that in some way Centrelink had foregone its right to retain the recovered moneys through what he considered to be Centrelink’s harassment of himself. The Tribunal member said that on the evidence before him he was unable to conclude that the appellant had been harassed by Centrelink, but he said that in any event, he considered that any such harassment was unrelated to Centrelink’s decisions in 1989, that is at least 14 years prior to the date the appellant suggested his harassment by Centrelink commenced. For these reasons, the Tribunal decided that the decision under review should be affirmed.

   The application

10. The respondent seeks an order that the appeal from the Administrative Appeals Tribunal be dismissed under O 20 r 2 of the Federal Court Rules. This rule gives the Court the power to dismiss proceedings if no reasonable cause of action is disclosed or the proceeding is frivolous or vexatious or the proceeding is an abuse of the process of the Court. In my opinion, it is clear that it is not arguable that the appeal raises a question of law, the case falls within O 20 r 2 and the appeal should be dismissed.

11. Order 53(2)(b) of the Federal Court Rules provides that a notice of appeal from a decision of the Administrative Appeals Tribunal shall state the question or questions of law to be raised on the appeal. This Court only has jurisdiction to entertain an appeal on a question of law and a notice of appeal which clearly does not identify a question of law should be struck out or (assuming an amendment is possible) amended to identify a question of law. The notice of appeal in this case does not identify a question of law.

12. The appellant appeared in person before me and he made submissions through an interpreter. He did not identify any question of law in the course of his submissions. As he was not represented, I have carefully considered whether on the facts of this matter there might arguably be a question of law. I have read the documents which were before the Tribunal. I have done this because if a question of law could arguably be discerned, then I would consider giving the appellant leave to amend his notice of appeal.

13. Leaving aside the need to identify a question of law I do not think it is arguable that there were special circumstances such that the respondent’s power was enlivened. The operation of the recovery provisions did not produce anything unfair, unintended or unjust in the relevant sense (see Groth v Secretary, Department of Social Security (supra) at 545). In fact, I did not understand the appellant to put his case in this way. His complaint was that some time after the respondent’s predecessor had decided to recover the relevant amount, he had been harassed by the respondent’s predecessor and that this harassment was a sufficient basis for an order that the amount recovered be repaid to him. The acts constituting the alleged harassment were not identified by the appellant. Even if they had been, harassment some time after the recovery of the money by the respondent could not constitute special circumstances within the provisions of s 156 of the Social Security Act 1947 (Cth) or s 1184K of the Social Security Act 1991 (Cth). In my opinion, the appeal is clearly unarguable and it is an appropriate case for me to exercise the power in O 20 r 2 of the Federal Court Rules.

    Conclusion

14. The appeal is dismissed.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice BESANKO.

Associate:

Dated:        15 November 2006

The Applicant:	The applicant appeared in person.
Counsel for the Respondent:	J Abbott
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	23 October 2006
Date of Judgment:	15 November 2006