Commonwealth of Australia v Austin, K.J

[1988] FCA 747

JUDGMENT No.

IN THE FEDERAL COURT OF AUSTRALIA )

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QUEENSLAND DISTRICT REGISTRY	1	Q. No. G.316 of	1988
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DIVISION GENERAL )

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF

THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY

MR D.P. BREEN (DEPUTY PRESIDENT)

BETWEEN:

THE COMMONWEALTH OF AUSTRALIA

Applicant

and

REVIN JAMES AUSTIN AND ELLEN NARELLE AUSTIN

Respondent

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COURT: NORTHROP. SPENDER L PINCUS JJ.

DATE:  2 DECEMBER 1988

PLACE:  BRISBANE

EX-TEMPORE REASONS FOR JUDGMENT

The issue raised by this appeal involves the

correct construction of the definition of "prescribed period"

The prescribed date for present purposes, is that

appearing in s.13(2) of the First Home Owners Act 1983. The

definition is as follows:-

"prescribed period" in relation to an applicant

means a family allowance period, ... that falls

within a period commenclng on the prescribed date

in relation to the applicant and endlng	11 months
after that date".

? .. - ..

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b

contained in s.4(1) of the Act, the relevant parts being:-

"prescribed date", in relation to a sole applicant who has, or joint applicants one of whom has, or 2

or more of whom together have -

(a)	entered into a contract of a kind referred
to in paragraph 14(l)(a) or (b); or

(b) ...

means -

(c) where paragraph (a) applies - the date of

the contract or, if a date has been

determined	under	sub-section	14(7), that
date

(d) ... "

The present respondents made application for the

assistance under the Act in relation to a contract for the

construction p f a house, the contract being dated 14 October

1985.   Under the provisions of the Act, an additional amount,

in the present case $500, would have become payable in

certain circumstances in relation to a second child which was

born on 21 August 1986.	Under the Social Security Act 1947,
in operation at that time, a family allowance is payable	in
respect of that second child only in respect of	a family

allowance period being a period commencing on the 15th day of

each month of the year and ending on the 14th day of the next

succeeding month; see s.101 of that Act. In the present

case, having regard to s.l02(l)(b) of that Act, the amount of

the family allowance for the second child only became payable

"from the commencement of the next family allowance perlod

after the date on which the claim for family allowance is

lodged." In the present case, the respondents made that

.

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application on 21 August 1986, the date of birth of	the
child, but having regard to the provisions of the Social Security Act, the first family allowance period for that child commenced on 15 September 1986.

The question arises whether the provisions of the

First Home Owner,s Act applied, it being argued that the

prescribed period in the present case had ended before	15
September 1986.

The claim for assistance was rejected and was

further considered pursuant to the provisions of the First

Home Owners Act and reasons for the rejection of the review

are contained in a document which is the document identified

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T2 before the Tribunal and is headed the "Section 37

Statement of Findings on Material Questions of Fact, Evidence and Reasons for the Decision".

The issue raised turns on whether the construction

of the definition of prescribed period, namely a period

commencing on the prescribed ate in relation to the

respondents and ending 11 months after that date, was

sufficient to include 15 September 1986. The question was

whether to exclude the date of the contract, 14 October, from

the calculation. If yes, the last date for the prescribed

period was 14 September 1986.	The person making the decislon
expressed the opinion that on the proper construction,	15
September 1986 was outside the prescribed period.

The r spondents sought a review from the

Administrative Appeals Tribunal and the Tribunal came to the

conclusion that the 15th September 1986 was within the

prescribed period and in so doing applied s.36(1) of the Acts

Interpretation Act 1901.

In our opinion there is no basis for the conclusion

of the Tribunal. On any view, the definition of prescribed
period means a period commencing on the date, the prescribed
date, and ending 11 months after that date and in the present
case on the most advantageous view to the respondents, ended
on 14 September 1986. In that regard the Tribunal was in

error and the appeal should be allowed.

One of the matters raised by the Department in its

reasons was the discretion conferred by 5.14 of the First

Home Owners Act. Sub-section 14(7) and (8) provide:-

"(7) For the purposes of this Act, the Secretary

may, subject to sub-section ( 8 ) , treat a person or persons as having entered into a contract on

a date determined	by the Secretary, being	a
date -

(a) not earlier than 2 months after the date

of the contract; and

(b) not later than the day before -

(i)	where paragraph (l)(a) applies - the day on which the vendor completes performance of the contract; or
( i i )	where paragraph (l)(b) applies - the
day on which construction of the

dwelling is completed.

( 8 ) The Secretary shall not make a determination

under sub-section (7) unless the Secretary is

satisfied that it would be to the advantage of
the person or persons affected."

In the present case, the delegate of the secretary

to the Department of Housing and Construction considered the

application of that section and considered whether	he should
exercise his discretion or not.	He held he had no power to

exercise the discretion because the date of completion was,

he said, 11 December 1985. That date was taken from the

contract and the application for the grant as being the date

in which it was anticipated that the house would be

completed. The application for the grant did suggest that

the respondents would not move into occupation until the end

of December 1985 and, in fact, the certificate of completion

and occupancy given by the local council authority	"was not
given until a much later date.	All that material was before

the delegate to the secretary. It was before the Tribunal,

although in the way the Tribunal heard the matter no persons

appeared before the Tribunal. It acted solely on the

documents which were before the delegate. Therefore, the

Tribunal had before it all the relevant documents which have

been mentioned in relation to the anticipated date of

completion, together with the fact that the documents

themselves suggested that the actual date of completion may

well have been after 11 December 1985; even as late as the end of December 1985 or even later still. The Tribunal did

not consider any of those factors. Even though It was

sitting in the seat, as it were, of the delegate and the

secretary, the Tribunal did not turn	its mind to the exercise
of a discretion under s.lQ(7) of the First Home Owners	Act.

The respondents gave what was headed a "Notice of

Contention" which, in substance, raised these issues.	On a
strict reading of the Administrative Appeals Tribunal Act

1975 and the Federal Court Rules	it may well	be that in
reality this	is a case where there should have been	a
cross-appeal by the respondents raising	a question of law	as

to whether the Tribunal was in error in not considering the

exercise of this discretion.

As was said earlier, the amount involved here is

$500. The costs involved of bringing the matter to this

Court are very	high.	If the cross-appeal is allowed,	it
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would involve the matter being referred back to the Tribunal

for further consideration and the costs to the Department

would be very large, involving the time needed to consider

these matters.	It does appear to the Court that there	is
material from which	a decision could	be made f o r the exercise

of the discretion under s.14(7) of the First Home Owners Act.

The real problem here is that on the matter of

general principle which the applicant considered arose on

this appeal, the Court has expressed a view which in

substance supports one of the three arguments put and to that

extent is in favour of the Commonwealth. At the same time

the facts of this case are unique and it is a case where the

Court feels there should be a further consideration by the

Department after finding out what date the house in fact was

completed. If the house was completed on a date after 11

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December 1985, it would appear that the discretion conferred by s.14(7) of the First Home Owners Act should be exercised in favour of the respondents.

In all these circumstances, the proposal of the

Court is to allow the appeal for the reasons expressed but to adjourn indefinitely what is, in reality, the cross-appeal to

enable the applicant to consider whether, in all the

circumstances, it would be more practical to pay the

grant of $500 or to proceed with an investigation to

determine precisely what the facts are. If no decision can

be made, then the matter could again be brought on for

hearing but the costs involved in doing that seem to outweigh

the amount involved.

The appeal is allowed. Leave is given to the

respondents to cross-appeal. The cross-appeal is adjourned

to a date to be fixed.	The applicant is not seeking costs.
No order as to costs.

ATTACHMENT A

Title of Action:	The Commonwealth of Australia
v. Kevin James Austin and
Ellen Narelle Austin
Number:	File	Q. No. G.316 of 1988
Date of Hearing:	2 December  1988

Judgment Delivered: 2 December 1988

Counsel for Applicant:	MS C.E. Holmes
Solicitors	for Applicant: Australian Government Solicitor
Counsel f o r Respondents:	MS M. Wilson

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Solicitors fo r Respondents: O'Mara Patterson & Perrier

Signed . .'%m. . p. .g&?.

Date 2 December 1988