Director-General of Social Services v Hales

Re: DIRECTOR-GENERAL OF SOCIAL SERVICES
And: JEANETTE SHIRLEY HALES (1983) 78 FLR 373
No. VG 66 of 1982
Administrative Law - Social Security

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
McGregor(1), Lockhart(2) and Sheppard(3) JJ.

CATCHWORDS

Administrative Law - Appeal from Administrative Appeals Tribunal - Overpayment of supporting mother's benefit - Jurisdiction of Tribunal - Whether relevant decision by Director-General of Social Services to claim repayment - Meaning of "decision" under the Administrative Appeals Tribunal Act 1975.

Administrative Appeals Tribunal Act 1975 ss. 3, 14, 15 15A, 44

Social Services Act 1947 s. 140

Audit Act 1901, s. 70c

Statute Law Revision Act 1981 ss. 4, 90

Administrative Law - Administrative Appeals Tribunal - Jurisdiction - Overpayment of supporting mother's benefit - Whether a decision - Administrative Appeals Tribunal Act 1975 (Cth), ss 3, 14, 15, 15A, 44.

Social Security - Overpayment of supporting mother's benefit - Whether recoverable - Failure or omission to advise of increased income - Whether failure or omission must be effective cause of overpayment - Decision to recover - Whether reviewable - Relevance of hardship - Relevance of chance of recovery - Social Services Act 1947 (Cth), s 140 - Audit Act 1901 (Cth), s 70C.

HEADNOTE

The respondent was in receipt of a supporting mother's pension under the Social Services Act 1947. She failed to inform the Department of Social Security of an increase in her income disentitling her to the pension, as required under the Act. For some years, the Department had not forwarded to the respondent the usual annual request for details of her current income. In 1978 the Department requested these details and, following the respondent's reply, advised her that she was no longer entitled to the pension. In 1980 the Department informed her that she had been overpaid for the period 1974 to 1978 and asked her to refund the overpayment.

The respondent appealed to the Administrative Appeals Tribunal (AAT) which found that the respondent was given to believe that the Department would conduct an annual review of her pension entitlement and that, not having received any request during the years 1974 to 1978 for details of her then current income, she believed that the amount she was receiving was correct. The Tribunal thus found that her failure or omission to inform the Department was not the effective cause of the overpayment (except for the first year of the period of overpayment) and therefore s 140 of the Social Services Act did not authorise its recovery (except for the first year). In addition, the Tribunal found that, in any case, the respondent's financial and family circumstances were such that recovery would cause extreme hardship and that there was scant chance of recovery action being effective, and therefore recovery should be limited to the first year's overpayment. From this decision the Director-General of Social Services appealed, on various grounds including that there was no "decision" made which was reviewable.

Held: (1) Per curiam - it is sufficient, for the purposes of s 140 of the Social Security Act 1947 (Cth), that the failure or omission to comply with a provision of the Act is a contributing cause of the overpayment; it need not be the effective or dominant cause.

Director-General of Social Services v. Hangan (1982) 70 FLR 212, followed.

(2) Per Lockhart and Sheppard J.J. (McGregor J. dissenting) - the decision of the Director-General to take steps to recover an overpayment of pension, which is made recoverable by s 140 of the Act, is a "decision" to which the Administrative Appeals Tribunal Act applies.

Director-General of Social Services v. Hangan (1982) 70 FLR 212, followed.

Auckland Harbour Board v. The King (1924) AC 318, distinguished.

(3) Per Lockhart and Sheppard J.J. - the Tribunal, in arriving at its decision, was entitled to take into account the extreme financial hardship which might be caused to the person in question by commencing recovery action, and the scant chance of effective recovery. Accordingly, the Tribunal's decision should stand.

Re Gee (No 2) (1981) 4 ALD 376, referred to.

(4) Per McGregor J. (dissenting) - the Tribunal did not take sufficient account of the fact that this was an illegal overpayment of public money to one who apparently knew of her duty to advise of increases in her income, nor did it consider whether her circumstances were such as to warrant temporary relief instead of precluding forever and in all circumstances recovery which might in the future be within her financial competence.

HEARING

Sydney, 1983, May 5. #DATE 5:5:1983

APPEAL

Appeal from a decision of the Administrative Appeals Tribunal varying a decision of the Director-General of Social Services that an overpayment of pension to the respondent be recovered pursuant to s 140 of the Social Services Act 1947 (Cth).

M E J Black QC and A J Myers, for the applicant.

A B Nicholson QC and P N Vickery, for the respondent.

Cur adv vult

Solicitor for the applicant: B J O'Donovan, Commonwealth Crown Solicitor.

FPC

ORDER

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

Appeal dismissed.

JUDGE1

This is an appeal by the DIRECTOR-GENERAL OF SOCIAL SERVICES ("Director-General") from the whole of the decision of the Administrative Appeals Tribunal made 23 April 1982 in proceedings wherein JEANETTE SHIRLEY HALES ("respondent") had sought a review of a decision of a Delegate of the Director-General. The precise formulation of what was the decision and on what grounds she had sought review have been matters of some discussion. To these matters I shall return later. But first, in order to understand the matter, it is necessary to set out its history.

On 16 August 1973 the respondent lodged a claim for a "benefit" appropriate to a "supporting mother" within the meaning of s.83AAA of Part 1VAAA of the Social Security Act 1947 ("the Act"). In her application she stated that she was employed by the Postmaster General Revenue Section and that the gross amount she had earned over the last twelve months had been $3,533.00.

On 7 September 1973 respondent was advised that payment of supporting mother's benefit had been approved at a fortnightly rate of $13.80 commencing from 3 July 1973. She was at the same time told that she was required to notify the Department if, in addition to her Social Security Benefit, she received income in excess of $72.25 per week in any period of two weeks, such notification to be within fourteen days of the expiration of that period.

On 15 January 1974 the respondent wrote to advise her wage had increased to $166.76. This was a reference to a fortnightly payment. She asked that her pension be adjusted. By letter dated 7 February 1974 she was advised her pension had been varied from $17.80 to $6.60 commencing from 12 February 1974. She was again told that she was required to notify the Department if, in addition to her social security benefit, she received income in excess of $83.38 per week in any period of two weeks such notification to be within two weeks of the expiration of that period.

On 4 July 1974 the respondent received a form headed "Income and Property Statement - Age, Invalid & Widows' Pensions". Under her name it was stated "Pensions are reviewed each year to ensure that the correct rate of pension is being paid. If this form is not returned the pension may be suspended."

On 15 July 1974 she completed that form including stating that her earnings for a fortnight were $173.06 and returned it to the Department which received it on 26 July 1974. A questionnaire was also sent to the then Postmaster-General's Department where she worked. On 17 September 1974 she was informed by letter that her benefit had been reviewed and altered, that her fortnightly rate was varied from $22.60 to $15.80 commencing from 24 September 1974. She was advised again of the requirement mentioned above, this time that if she received income in excess of $90.25 per week she should notify the Department.

Later it was ascertained that since 15 February 1975 her wage had been in excess of $90.00 per week. By letter dated 10 May 1978, respondent was asked, if her income was in excess of what was last notified, to complete and return a section on the form. On 13 May 1978 she did so, advising of a "take home pay" of $312.77. This was received by the Department on 29 May 1978. On 22 June 1978 she was advised by letter that the benefit would no longer be payable because of the amount of her income.

By letter dated 28 March 1980 and following calculations made, the respondent was requested to refund $3,564.30 to the Collector of Public Monies, Department of Social Security at the earliest convenience. The respondent appealed to a Social Security Appeals Tribunal. It considered that the appeal should be partly upheld -

"in that the overpayment should not be recovered beyond 29/5/78 when Miss Hales notified per SA100;"

this last mentioned date, as I have said, being the date when the Department received the information supplied to it in response to its letter of 10 May 1978.

On 2 April 1981 the First Assistant Director-General Legislation and Review of the Department of Social Security wrote advising respondent that a Deputy Director-General of the Department, being a delegate of the Director-General, had concluded, apparently about February 1981, that she had failed to notify the Department of increased earnings received on 13 November 1974 by 27 November 1974; that all supporting parent's benefits paid to her from the following payday, viz. 3 December 1974, was an amount which should not have been made; but that in view of the fact that she had notified her increased earnings on 29 May 1978 the excess payment after payday 25 May 1978 was due to administrative processes and should not be recovered. The amount claimed to be due was said to have been recalculated at $3,632.70 for the period from 3 December 1974 to 25 May 1978. She was advised of her right to apply for a review of the Decision to the Administrative Appeals Tribunal (AAT).

It is common ground that there was an overpayment of $3,632.70 and that there had been a failure by the respondent to notify the change of income.

It is accepted and this matter proceeded upon the basis that the respondent did apply to the AAT for a review of a decision. There is not in existence, so far as appears or we have been told, the form referred to in s.29 of the Administrative Appeals Tribunal Act 1975 and Schedule 1 of the Regulations made under that Act.

In the s.37 documents the "decision" is referred to thus -

". . . .a decision of a delegate of the DIRECTOR-GENERAL OF SOCIAL SERVICES, affirming a decision of an officer made under the Social Services Act 1947 which decision was reviewed by a Social Security Appeals Tribunal, that she had been paid a total amount of supporting mother's and supporting parent's benefit of $3632.70 more than she was entitled to be paid and that this amount was recoverable from her as a debt due to the Commonwealth."

In its Reasons for Decision the AAT recited the "decision" thus -

". . . .a decision of a delegate of the Director-General of Social Services ("the respondent") seeking to recover monies paid to the applicant for supporting mother's benefit in the sum of $3,632.70 pursuant to sub-section 140(1) of the Social Services Act 1947."

In argument, senior counsel for the Director-General suggested it might be described as a -

". . . .decision to seek to recover monies being an amount agreed as $3632.70 paid without warrant to the applicant purporting to be a supporting mother's benefit"

though without conceding there had been a decision to which s.25 of the Administrative Appeals Tribunal Act 1975 or s.15A of the Act applied.

Senior counsel for the respondent agreed with the above formulation but submitted there should be added after "seek to recover moneys", the phrase -

"pursuant to the provisions of s.140(1) of the Act."

He submitted that a decision to debit respondent in the Department's records is an anterior decision but only part; the decision was to do that and to proceed with recovery proceedings.

In its Reasons of 23 April 1982 the AAT substituted its own view as to what was the "proper course" in respect of payments made to the respondent for the period from 3 December 1974 to 25 May 1978 and directed her to refund overpayments attributable to the first pension year after 17 September 1974 but not for subsequent years. The Reasons for Decision include the following -

"Nevertheless on the facts of this matter the Department knew from the beginning that the applicant was actually informed that pensions were reviewed each year "to ensure that the correct rate of pension is being paid". It seems from the s.37 statement that the Department did not in fact rely on the information supplied under s.74 but sought its own information as to the applicant's wages. I accept that it was the applicant's genuine belief that the manner of review would be instituted by the Department. On these facts the applicant was given to understand that there would be departmental review annually. In my view it is proper to regard the failure of the Department to perform its functions as the substantial or dominating cause of the overpayment. The applicant's failure can best be regarded as a contributory cause but not the effective cause.

Even if I am wrong in this conclusion there are in this case other factors which warrant the exercise of a discretion against substantial recovery from this applicant. There would be, in my view, extreme hardship to the applicant and to her 16 year old invalid pensioner daughter. There would also be scant chance of action of recovering the monies being effective.

On all these facts it seems to me that the proper course is to direct that the applicant refund overpayments attributable to the first pension year after the review in 1974 but not subsequent years which should have been disclosed to the respondent by the annual review which the applicant understood on good grounds, would be conducted."

Against that decision the Director-General has appealed to this Court. By Amended Notice of Appeal dated 24 September 1982 the following Orders were sought -

"1. That the decision of the said Tribunal be set aside.

2. That in lieu thereof there be substituted orders -

(a) That the said decision of the applicant be confirmed.

(b) That the respondent has been overpaid by way of supporting mothers benefit and supporting parents benefit an amount of $3,632.70 recoverable by the applicant in a Court of competent jurisdiction as a debt due to the Commonwealth."

The Grounds of Appeal therein set out are -

"1. That the decision of the Tribunal and the reasons of the Tribunal for making the said decision were contrary to and wrong in law.

2. That the Tribunal should have affirmed the decision of the applicant that the respondent had received an overpayment of $3,632.70.

3. That the Tribunal should have held that in consequence of a failure or omission by the respondent to comply with the provisions of the Social Services Act 1947 an amount of $3,632.70 had been paid to the respondent by way of supporting mothers benefit and supporting parents benefit which would not have been paid but for the failure or omission.

4. That the Tribunal erred in law in that it failed to apply the provisions of section 140 of the said Act.

5. That the Tribunal erred in law in failing to apply or to apply correctly the provisions of Part 11 and Part 1VAAA and Part 1X of the said Act.

6. That the Tribunal erred in law in holding that section 140 of the said Act only applied if the failure or omission of the respondent to notify the applicant of an increase in her income was the effective and not merely a contributory cause of an overpayment.

7. That the Tribunal erred in law in finding or holding that the failure or omission of the respondent to notify the applicant of an increase in her income was not the effective cause of an overpayment.

8. That the Tribunal erred in law in finding or holding that a failure of the Department of Social Security to perform its functions was the substantial or dominating cause of the overpayment to the respondent.

9. That the Tribunal erred in law in holding that when an overpayment of pension, allowance, endowment or benefit had been made as a consequence of a failure or omission to comply with any provisions of the said Act the applicant had a discretion to recover all or none of the overpayment.

10. That the Tribunal erred in law in deciding that the applicant made a decision within the meaning of section 25 of the Administrative Appeals Tribunal Act 1975 to recover the amount of the overpayment to the respondent.

11. That the Tribunal had no jurisdiction to entertain the application to the Tribunal by the respondent.

12. That the Tribunal had no power under section 43 of the Administrative Appeals Tribunal Act 1975 or otherwise to direct the applicant not to seek recovery of the whole of the amount of the overpayment to the respondent.

13. That if (which is denied) the Tribunal had power to direct the applicant not to seek recovery of the whole of the amount of the overpayment to the respondent, then the Tribunal erred in law in so directing the applicant.

14. That the Tribunal erred in law in determining that the applicant or the Department of Social Security failed to perform its functions in relation to the respondent.

Questions of Law to be Raised

1. Did the applicant make a decision within the meaning of section 25 of the Administrative Appeals Tribunal Act 1975 to recover the amount of the overpayment to the respondent?

2. Did the Tribunal have jurisdiction under section 25 or any other provision of the Administrative Appeals Tribunal Act 1975 to entertain the application to the Tribunal by the respondent?

3. What is the proper meaning and effect of section 140 of the Act?

4. Further to question 3, but without limiting the generality thereof,

(a) Does sub-section 140 (1) confer upon the Director-General or any other person a power or discretion to determine whether or not to recover overpayments of pension in circumstances in which there is in fact an overpayment that is recoverable in law?

(b) What is the meaning and effect of the expressions "but for" and "in consequence of" in sub-section 140(1)?

(c) Does the failure of the recipient to comply with a provision of the Act have to be an "effective" and not merely "contributory" cause of an overpayment before the amount of the overpayment is recoverable under sub-section 140(1)?

5. What is the meaning and effect of section 43 of the Administrative Appeals Tribunal Act 1975?

6. Further to question 5, but without in any way limiting the generality thereof, did the Tribunal have the power to direct the applicant not to seek recovery of the whole of the amount of the overpayment to the respondent?

7. If the Tribunal had a discretion or power to direct the applicant not to seek recovery of the whole of the amount of the overpayment to the respondent did it err in law in determining so to direct the applicant?"

The Act includes -

"15. A person affected by a determination, direction, decision or approval of an officer under this Act (except a determination, direction, decision or approval of the Director-General) may, within such time (if any) as is prescribed, appeal to the Director-General and the Director-General may affirm, vary or annul the determination, direction, decision or approval.

15A. (1) Where the Director-General has, on or after 9 September 1980 in pursuance of section 14 or 15, made a decision affirming, varying or annulling a determination, direction, decision or approval of an officer, being a determination, direction, decision or approval that has been reviewed by a Social Security Appeals Tribunal, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, an application may be made to the Administrative Appeals Tribunal for review of the decision of the Director-General.

(2), (3), (4), (5) . . . .

PART 1V - WIDOWS' PENSIONS

Division 1 - Preliminary

59. (1) In this Part, unless the contrary intention appears -

. . . . .

"Pensioner" means a woman in receipt of a pension;

. . . . .

"widow" includes -

(a) a dependent female;

(b) a deserted wife;

(c) a woman whose marriage has been dissolved and who has not remarried; and

(e) a woman whose husband has been convicted of an offence and is imprisoned and has been imprisoned for a period of not less than 6 months, including any period of imprisonment prior to and continuous with a period of imprisonment following upon the conviction,

but does not include a woman who is living with a man as his wife on a bona fide domestic basis although not legally married to him.

. . . . .

74. (1) Where the average weekly rate of income, other than pension, received in any period of 8 consecutive weeks by a pensioner who is not in receipt of an allowance under section 65A is higher than $20 per week and is higher than the average weekly rate of the income last specified by her in a claim, statement or notification under this Part, the pensioner shall, within 14 days after the expiration of that period, notify a Director of the amount of the income received by her in that period.

(5) In the event of -

(a) the pensioner ceasing to be a widow, within the meaning of this Part, by reason that she -

(i) marries;

(ii) ceases to be a deserted wife or a woman referred to in paragraph (e) of the definition of "widow" in sub-section 59 (1); or

(iii) commences to live with a man as his wife on a bona fide domestic basis although not legally married to him;

(b) a child ceasing to be in the custody, care or control of a pensioner;

(ba) a person who, by virtue of section 59A, is to be treated as a child in the custody, care and control of a pensioner -

(i) ceasing to be wholly or substantially dependent on the pensioner; or

(ii) ceasing to receive full-time education at a school, college or university;

(bb) a child in relation to whom sub-section 59 (4) applies ceasing to be maintained by a pensioner; or

(c) a pensioner becoming an inmate of a benevolent home,

the pensioner shall, within fourteen days after the occurrence of the event, notify a Director accordingly.

(6) A pensioner shall not leave Australia without first giving to a Director notice of her intended departure from Australia.

Penalty: $40"

We were told that a provision since repealed, s.74(2), initially provided for repayment. But since 1976 the relevant section is 74 (1). It is agreed nothing turns on the difference in expression between the former s.74 (2) and the present s.74 (1).

The Act provides further -

"75. (1) If -

(a) . . . . .

(b) by reason of the failure of a pensioner to comply with section 73 or 74; or

(c) . . . . .

the Director-General considers that the pension which is being paid to a pensioner should be cancelled or suspended, or that the rate of the pension which is being paid to a pensioner is greater or less than it should be, the Director-General may cancel or suspend the pension, or reduce or increase the rate of the pension, accordingly.

PART IVAAA - SUPPORTING PARENTS' BENEFITS

. . . . .

83AAG. (1) Section 61 and Divisions 3A, 4, 5 (other than section 68), 6 and 7 of Part IV apply in relation to a beneficiary as if the beneficiary were a widow for the purposes of that Part.

(2) For the purposes of the application, by virtue of sub-section (1) of this section, of section 75 in relation to a beneficiary, the reference in that section to section 59AA shall be read as a reference to section 83AABA.

PART IX - MISCELLANEOUS

138. (1) A person shall not -

(a) . . . . .

(b) obtain payment of a pension, allowance, or benefit under this Act, or of an instalment of such a pension, allowance, or benefit, which is not payable;

(c) . . . . .

(d) . . . . .

140 (1) Where, in consequence of a false statement or representation, or in consequence of a failure or omission to comply with any provision of this Act, an amount has been paid by way of pension, allowance, endowment or benefit which would not have been paid but for the false statement or representation, failure or omission, the amount so paid shall be recoverable in a court of competent jurisdiction from the person to whom, or on whose account, the amount was paid, or from the estate of that person, as a debt due to the Commonwealth.

(2) Notwithstanding anything contained in this Act (other than sub-section (3) of this section), where, for any reason, an amount has been paid by way of pension, allowance, endowment or benefit which should not have been paid, and the person to whom that amount was paid is receiving, or entitled to receive, a pension, allowance or benefit under this Act (other than a funeral benefit under Part IVA), that amount may, if the Director-General in his discretion so determines, be deducted from that pension, allowance or benefit.

(3) An amount referred to in sub-section (2) that has been paid otherwise than by way of "family" allowance under Part VI shall not be deducted from family allowance payable under Part VI."

The Administrative Appeals Tribunal Act 1975 provides -

"3. (1) . . . . .

(2) . . . . .

(3) A reference in this Act to a decision includes a reference to -

(a) . . . . .

(b) . . . . .

(c) . . . . .

(d) . . . . .

(e) making a declaration, demand or requirement;

(f) . . . . .

(g) . . . . .

25. (1) An enactment may provide that applications may be made to the Tribunal -

(a) for review of decisions made in the exercise of powers conferred by that enactment; or

(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

. . . . .

29. (1) An application to a Tribunal for a review of a decision -

(a) shall be in writing;

(b) may be made in accordance with the prescribed form;

(c) shall set out a statement of the reasons for the application; and

(d) if the terms of the decision were recorded in writing and set out in a document that was furnished to the applicant or the decision is deemed to be made by reason of the operation of sub-section 25(5) - shall be lodged with the Tribunal within the prescribed time.

. . . .

37. (1) A person who has made a decision that is the subject of an application for a review by the Tribunal shall, within 28 days after receiving notice of the application, lodge with the Tribunal such number of copies as is prescribed of -

(a) a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and

. . . . ."

The submission of senior counsel for the Director-General included that the Director-General had not made a positive "decision" within the meaning of s.15A of the Act or s.25 of the Administrative Appeals Tribunal Act 1975, though he did not wish to rely on that argument finally to decide this matter. He described what had happened as being a "step in the process of getting the money back"; the decision may have been that a debit be raised and that it be recovered or pursued. He argued also that any decision taken to sue would not be one under the Act but merely one by servants of the Crown.
Senior counsel for the Director-General submitted that the "decision" by the Director-General that an amount of money was recoverable was not one which was reviewable, so that there was no jurisdiction in the AAT; even if there had been a decision subsequently to recover the overpayment; that if the stage had been reached where somebody intended to do something about the matter, that "decision" nor even any subsequent "decision" to issue a summons was not reviewable; the "decision" that moneys were recoverable could not properly be described as a "decision under" the Act. Such decisions, made under ss. 14 or 15 of the Act by the Director-General, are, by s.15A of the Act, subject to review by the AAT. All that had been done here was by a public servant in that capacity looking after the revenue of the Crown, rather than performing an exercisable power under the Act. He referred to R. v. Clyne; ex parte Harrap (1941) V.L.R. 200; Evans v. Friemann (1981) 35 ALR 428; Deputy Commissioner of Patents v. Board of Control of Michigan Technological University (1979-80) 28 ALR 551; Collector of Customs (N.S.W.) v. Brian Lawlor Automotive Pty. Ltd. (1979-1980) 24 ALR 307. Counsel preferred, however, to rely on a more general submission that the AAT's decision was fundamentally wrong. Referring specifically to s.140, he submitted that the AAT had accepted that the respondent thought the Department would send her a notification each year which she would then complete thus giving it the necessary information; that since the Department did not do this that therefore her failure to comply with the Act was not the effective cause of the overpayment. He argued that what the AAT had been concerned with was the cause of what had happened rather than a more specific consideration of the language of s.140; and even if "cause" does equal "consequence", the AAT failed to ask the real question of itself, viz., whether the overpayment was a consequence (cause) of the failure to notify. He submitted the section really asks, if there was an omission (failure by respondent to notify) was it in consequence of that that an amount was paid which except for the omission would not have been paid. He submitted that the AAT was in error in interpreting s.140(1) as requiring a failure to comply with the Act to be an effective and not merely a contributory cause; whereas, to entitle recovery under that section it was sufficient to show that overpayment followed on from the omission in circumstances where there is a connection between the two. He contended that "in consequence of" extended to cover things that follow on something else and have connection therewith. He referred to McIntosh v. Federal Commissioner of Taxation (1979) 25 ALR 557.
The use of the words "but for", he suggested, made it plain that there had to be a connection, not merely temporal; and only in that sense would causation be implied.
He drew attention to sections of the Act which require pensioners to provide information, i.e. being an offence if they do not; presupposing that information will be supplied capable of being relied upon by the department. The scheme of the Act was, he contended, to put very squarely on pensioners the onus of telling the department facts which may effect the entitlement to pension; whereas the Director-General had power to enquire as to a pensioner's wages but no positive statutory duty to do so.
As an alternative, he submitted that if one had to find the respondent's omission was the effective cause of overpayment, it was not open to the AAT to find the failure not an effective cause.
Further, he contended that there was no basis upon which the (implicit) finding that the Department had failed to perform its function could have been made; there was no duty on the department to check wages or advise pensioners. He submitted there was no way in which any discretion to sue to recover the overpayment could be controlled by the AAT; that the Director-General was bound to sue unless he followed Audit Act 1901 ("the Audit Act") s.70C procedures giving power in the Minister to write off moneys. In fact, there was a delegation under s.70A of the Audit Act to the Director-General to perform that function in respect of the Act. As a separate argument he contended that if there was a discretion in the AAT to forgive or excuse repayment, it had not been properly exercised anyway in that e.g. public money had been paid out; hardship on the pensioner was therefore not the only consideration when one exercised a discretion. There was, he said, no balancing exercise carried out by the AAT - this being essential in any discretionary exercise.
He summarised his argument that if there was a decision being considered by the AAT it was not a decision to which the Administrative Appeals Tribunal Act 1975 applied, not being one under the Act. If there was a decision which could be reviewed, findings were made which were wrong and if there was a discretion the way in which the Tribunal found it ought be exercised was wrong and made without regard to significant factors.
Senior Counsel for the respondent submitted that there had been a relevant "decision" (outlined earlier above) which was an administrative decision; that this Court should say that it was open to the AAT to find and direct as it did. He submitted it was an essential part of the administration of the Act to make decisions as to whether overpayments ought be recovered; s.140 limits the circumstances of recovery; so decisions to recover are made and are "under the Act".
He referred to Re Gee and Director-General of Social Services (1980-81) 3 ALD 132 (Gee) Matteo and Director-General of Social Services, (1981-1982) 4 ALD 398 (Matteo); Forbes and Director-General of Social Services, unreported, delivered on 24 December 1981 (Forbes); Re Buhagiar and Director-General of Social Services (1981) 4 ALD 113 (Buhagiar).
He submitted there had been a decision that respondent owed the money and also to seek to recover it. Part of that decision or anterior to it was one to raise an overpayment or make a debit entry in Departmental records.
He argued that the "decision" of the Director-General to seek recovery of the overpayment was one taken in the exercise of a discretion, which could be subject of review by the AAT; that this Court should say, as a matter of construction of the Act, that it was within the competence of the AAT to review the exercise of that discretion. He submitted that on a proper analysis of the Act it might be expected that the recipients of pensions might be given some statutory direction as to what they must do; that it would be "highly desirable" if there had been some proper explanation as to why no action was taken.
He argued that having regard to the obligations on the Director-General, including one not to overpay, and having regard to all the circumstances, it was proper to say the Department had failed to perform its function in the relevant period; that it was an abdication of responsibility to simply rely upon the notification under sections of the Act such as s.74; that its failure was a dominating cause of the overpayment.
Counsel also made submissions as to the construction of s.140; that the legislature was trying to set a test involving the overpayment having been caused as the responsibility or the action or inaction of the pensioner; that the intention then was that recovery ought not to have been effected unless the pensioner's behaviour really had brought about the situation of overpayments having taken place. He submitted that the words "but for" implied a higher degree of causative connection than "in consequence of". The effect of this argument was that for the pensioner to be liable her conduct must have gone beyond being merely an action which might lead to a consequence. So, he argued, the overall approach of the AAT can be justified logically when it said, in effect, for the first year, but for the pensioner's inaction, the overpayment would not have occurred. Thereafter there were other supervening factors referring, it seems, to the alleged inaction of the Department of Social Services; that by the end of the first year the Department must have known it was overpaying; that it was the duty of the Director-General to fix pensions at an appropriate level the obligation on the pensioner being ancillary to that of the Director-General. He referred to Gee, to Matteo and to Frederick Braby and Company, Limited v. Bedwell (1926) 1 K.B. 456 (Braby).
I have not set out counsels' arguments fully.
First it is necessary to consider what "decision" was being reviewed. In the circumstances, I consider, having regard to the terms of s.37(1) (a) of the Administrative Appeals Tribunal Act 1975, it should be accepted that the "decision" under review was that set out in the documents lodged pursuant to that section. To do otherwise would be to entertain an appeal against a notional review of other than the actual decision taken. It may be that the AAT in its Reasons quoted earlier was doing no more than in a short hand way referring to what was so set out rather than attempting to set out explicitly the "decision" it was to review. It appears to me to be reasonable so to assume.
As to what is a "decision", Director-General of Social Services v. Chaney (1980) 31 ALR 571 is of assistance, though the circumstances were different. There a widow's pension had been sought and refused. She sought to have a decision whether she was entitled to a widow's pension for which provision is made in Part IV of the Act. There was a prelliminary hearing before the President of the Tribunal. He held the Tribunal had jurisdiction to review. There was an appeal to the Full Federal Court against this. Deane J., one of the majority in the judgment, said at p.590 - "The word "decision" is a word of indeterminate meaning. In some contexts, it can refer to the mental process of making up one's mind. In the context of judicial or administrative proceedings, the word will ordinarily refer to an announced or published ruling or adjudication. In such a context, the word "decision" may be apt to include the determination of any question of substance or procedure, including, for example, rulings on procedural questions such as whether particular evidence should be received, or the meaning of the word may be limited to a determination effectively resolving an actual substantive issue. When the word "decision" has the last-mentioned limited meaning, it can refer to any such determination whether final or intermediate (see, e.g. Registrar of Workers' Compensation Commission v FAI Insurances Ltd (1977) 1 NSWLR 422 at 448) or be limited to referring only to a determination which effectively disposes of the matter in hand (see, eg Winter v Winter (1933) NZLR 289 at 295; Penniel v Driffill (1980) WAR 30 at 32)."

At p.591 he said -

"The provisions of s.3(3) would seem more apposite to define a reference to the substantive "decision" of the original decision maker than to confine the scope of a reference to a "decision" of the Tribunal upon review. Subject to that qualification, the specific activities mentioned in the definition in s.3(3), which are in the nature of effective action rather than intermediate "decision" on the path to such action, provide some indication that a reference to "decision" in the Act is, prima facie, a reference to the ultimate or operative determination rather than a reference to an adjudication or determination of issues arising in the course of making such an ultimate or operative determination."

See also his reference to authority at p.590. Northrop J., who dissented, said at p.584 -

"In its general sense the meaning of the word "decision" appearing in the Shorter Oxford Dictionary is: "The action of deciding (a contest, question, etc.); settlement, determination; (with a and pl) a conclusion, judgment: esp one formally pronounced in a court of law 1552": see also Re Kent County Council and Council of Dover (1891) 1 QB 725 and Reidy v. Herry (1897) 23 VLR 508, where at p.510 Williams J said: "Now I take it that an adjudication or decision of justices is something which is announced but not what is passing in the minds of the justices. It is a decision announced in open court. That is their decision or adjudication.""

I do not understand that his impressions in this area were different from the opinions of the other members of the Court; nor do I imply that decisions which are subject to review by the AAT are-only those announced in courts. As to further comments on the meaning of "decision" see also per Northrop J. in Ricegrowers Co-operative Mills Ltd. v. Bannerman & Anor. (1981) ATPR 43,332 at p. 43,338.

In Duncan v. Defence Force Retirement and Death Benefits Authority and Commonwealth of Australia (1980-81) 3 ALD 113 at p. 117 it is implied that a "decision" should be found to be a pronouncement which alters rights or imposes a liability; but it may be wider than that. The Court said at p.117 -

"The Authority did not alter rights, nor impose a liability. The legal liability of the applicant to contribute under s.19 and his legal entitlement under s.23 were alike unaffected by the Authority's view: the Authority had no power judicially to decide these matters, nor to determine them in any final sense. Yet in practice, as we were told, the Authority's view is accepted by the Navy Pay Office which makes the deductions from pay in accordance with ss.17 and 19 of the DFRDB Act, and no doubt the Authority authorizes the making of payments under s.23 in accordance with its view of a particular member's entitlement. The Authority declared what was the measure of the applicant's liability to contribute, and although the declaration did not affect the applicant's true legal liability, it was nevertheless effective in practice to prevent the deduction of a larger contribution from Captain Duncan's pay. And the Authority refused its consent to the making of a larger contribution. What the Authority did thus falls within one or more of the categories defined by s.3(3) of the AAT Act to constitute a "decision"."

The significant aspect of the declaration of payments was that it was "effective in practice to prevent the deduction of a larger contribution from Captain Duncan's pay." There is no equivalent or similar disadvantage, in my opinion, by a "decision" that an admitted overpayment (as here) was recoverable. See also per Lockhart J. in Hamblin v. Duffy (1980-81) 3 ALD 153 (Hamblin) at p. 158 though dealing with an appeal under the Administrative Decisions (Judicial Review) Act 1977. See also the references to the "ripeness doctrine" Administrative Law Bernard Schwartz 1976 p. 515 et seq.

There has been reference by respondent's senior counsel in argument to the raising of an overpayment or making a debit entry of $3,623.70 in the Departmental records in the respondent's account. Would a "decision" so to do - if there were one and it had been the subject of review - be a relevant decision? Speaking only for myself, the notion that someone should consider he should make a book entry, without more, could be aptly described as a "decision" which is then subject to review, is unconvincing. No doubt in one sense every bookkeeper makes a "decision" before he enters a figure in a ledger or journal. The relevant entry here would have no self operating function or long term results as did the declaration of a deduction rate in respect of Captain Duncan's pension. Again, any action which might be taken by the Director-General in the future, including by relying on s.140(2), would not be because of or in consequence of a book entry but because of an overpayment. I do not intend to enter into any discussion as to whether any later determination to deduct would be a relevant decision, a matter which is not before us.

No doubt there are book entries in records of all pensioners showing debits or credits and enabling the state of the account to be ascertained readily. Book entries, although in a different context, have been accorded a limited function, i.e. otherwise than as a record. In Manzi v. Smith (1975) 132 C.L.R. 671 a declaration had been sought that a payment made to a shareholder shortly before liquidation was void as against the liquidators of a company and that certain other shareholders were indebted to the company in specified amounts. The material produced by the liquidators consisted of entries in the company's accounts. There was no evidence that the shareholders had knowledge of or had adopted the entries. Barwick C.J., with whom Mason J. agreed, said at p.674, referring to decided cases -

"These decisions, quite clearly, are not authority for the proposition for which they were advanced, namely, that a payment of money was made by the making by the company of a journal entry in the books of account without reference to, or without the agreement of, the persons said to be the recipients of the money. The company's assertions in its books of account did not establish the indebtedness of the appellants or any payment of money in discharge of that indebtedness."

Jacobs J. said at p. 675 -

"The entries made through the journal and the books of the company did nothing except alter the manner in which the internal accounts of the company were expressed."

In Brookton Co-operative Society Limited v. Federal Commissioner of Taxation 81 ATC 4,346, one of the questions was whether the declaration of an interim dividend created a debt by the company to the shareholders. In the company's records the following entry appeared -

"Resolved - that an interim dividend of $47,914.97 be declared and credited to the accounts of Brookton Co-operative Society Limited and be available to that company on demand."

There was an appropriate journal entry in the company's books; the amount of the dividend was reflected in the company's financial statement.

Mason J., with whom on the point Gibbs C.J., Murphy and Aickin JJ. agreed, said at p.4,354 -

"It is, however, well settled that the making of a mere entry in the books of a company without the assent of the shareholder does not establish a payment to the shareholder."

If the respondent were ever sued, or suffered a deduction pursuant to s.140(2), it would not be in consequence of a book entry, but because there had been an "illegal" overpayment, or if there is a difference, one recoverable in reliance on s.140(1) or pursuant to the principles in Auckland Harbour Board v. The King (1924) A.C. 318; and, if s. 140 (2) were invoked, following an exercise of discretion.

It would, anyway, as a matter of common sense, be clear that the Director-General would keep and be obliged to keep detailed financial records of payments due and made to pensioners; and moneys due from pensioners. Legislative background relating to control of public money starts with the Commonwealth of Australia Constitution Act s. 83, the Act and the Audit Act. By s. 7 of the Act, the Director-General of Social Security has the general administration of that Act. Pensioners are to be paid in such manner as the Director-General determines. (s. 40 (2)).

The Audit Act s. 60 provides that a separate account to be called the Trust Fund shall be kept of all moneys placed to the credit of that fund under such separate heads as may be directed by the Minister. Presumably the reference is to the Minister of Finance.

Section 61 of the Audit Act provides that it shall not be lawful for the Minister to expend any moneys standing to the credit of the Trust Fund except for the purposes of such fund or under the authority of an Act.

Pursuant to s. 62A of the Audit Act, the Minister may establish Trust Accounts and define the purposes for which they are established; and all moneys standing to the credit of an account which is a Trust Account established or continued by s. 62A or established under any other Act as a Trust Account within the meaning of the section, shall be deemed to be moneys standing to the credit of the Trust Fund. Sub-ss. 5 and 6 of s. 62A provides that moneys to be paid to the credit of the Trust Account to which they relate include moneys appropriated by law for the purposes of any Trust Account; and that moneys standing to the credit of the Trust Account may be expended for the purposes of the account.

By the National Welfare Fund Act 1943 ("the National Welfare Fund Act") s. 4, there is established a Trust Fund from which payment of pensions may be made - s. 6. The Trust Account known as the National Welfare Fund is a Trust Account for the purposes of s. 62A of the Audit Act. In Notes at the end of the National Welfare Fund Act, which can be found in "Acts of the Parliament 1901-1973" Vol. 8 p. 202, it is stated that payments may be made out of the National Welfare Fund under provisions including the Social Services Act 1947 ("the Social Services Act") s. 136.

In s. 2, the Audit Act provides for accounting officers. These are persons who are charged with the duty of collecting, receiving or accounting for public moneys. "Public moneys" means revenue, loan, trust and other moneys received or held by any person for or on behalf of the Commonwealth or prescribed authority, and includes all moneys forming part of the Consolidated Revenue Fund, the Loan Fund or the Trust Fund.

By s. 16 accounting officers shall, subject to the provisions of the Act and the regulations, inter alia, keep such records as are prescribed by the Act or regulations or as the Minister may direct. And cf. the Finance Manual containing directions issued pursuant to Finance Regulations 127A including Guidelines.

It is provided in para. 11 that -

"In the case of an overpayment of periodical amounts paid by the Departments a notation shall be made on the appropriate personal record to ensure, as far as possible, future recovery of the amount owing. (This Direction does not apply to such classes of overpayments that are, as a matter of policy, determined as not to be recovered.)"

though on a sheet bearing as part of the heading "Section 24", the instruction seems to have a wider ambit.

In my view, what was before the AAT included the views of Mr. Jackson, Regional Manager, to which later I refer, in which there was an expression that an overpayment of $3,632.70 so determined by calculation was "recoverable" as a debt; which is not the same as "shall be recovered" (cf. Matteo (supra) and Hangan (mentioned below). The first matter, the fact of overpayment, was not, and is not, now challenged. The second statement ("recoverable"), if it is a comment on the legal situation, itself did not impose a liability to pay or create a right to recover or even indicate an intention to recover; cf. Hamblin at p. 159. Such a liability or right either does or does not exist as a matter of law independently and unaffected by any expression of opinion, and as a matter of deduction from the facts of the particular case interpreted in the light of common law principles; or by s. 140 if it adds to or qualifies those principles. Opinions as to recoverability, the Director-General has expressed have no legal consequences i.e. as to recoverability simpliciter, no finality and no effect on the respondent. Such opinions are not "making a declaration demand or requirement" - cf. s.3(3) supra. It is of no assistance to speculate what, pursuant to s.140(2), the Director-General, in his discretion, might determine in the future - cf. Pfeiffer v. Director General of Social Services, unreported 4 December 1981. The formation of an opinion per se is not in these circumstances a decision within the meaning of relevant legislation cf. Riordan v. Parole Board of the Australian Capital Territory (1981) 3 ALD 144. I note that in Matteo, there was, under review, a "decision" that an overpayment be raised and that recovery thereof be "instigated". It was really a "decision" that recovery should be pursued that was reviewed (see pp. 7 and 9). The raising of a debit entry, whether enjoined by specific legislation or not, would be part of ordinary practice in any entity dealing with accounts of public money; it would " . . . . do nothing but alter the manner in which the internal accounts of the (Department) were expressed." See per Jacobs J. (supra). It does not imply nor does it invariably (or "inexorably") follow that a recovery will be "instigated". Such a recording could not be said to be or be part of a decision to which s. 15A of the Act applies.

The so-called "decision" does not acquire that quality even though it was so treated by the Director-General or the Social Security Appeals Tribunal or the Administrative Appeals Tribunal; their views do not give jurisdiction beyond what is able to be sustained by reference to legislation.

After argument had concluded and the matter reserved, and on 17 December 1982, the decision in Director-General of Social Services and Kathleen Beverley Hangan (Hangan) was published (unreported), to which reference may be made. The provision of the application to the Administrative Appeals Tribunal for review considered in that case was in a (earlier) form slightly different to s. 15A. See Administrative Appeals Tribunal (Social Services Act) Regulations. The difference in wording does not appear to me to be significant. The reasons for judgment of Fox J. include that the Director-General had made an "authorative decision as to recoverability itself in the nature of a demand", that the Director-General had made a "decision" to affirm or vary the decision or determination of the officer of his department that had been reviewed by a Social Security Appeals Tribunal. It was a decision that endowment paid was not payable ". . . . that it was recoverable and should be recovered" that hence the endowee was entitled to seek review of the Director-General's decision. His Honour also said -

"The fact is that action to recover, or even to demand, is not an inevitable consequence of an administrative assessment that there is liability."

Toohey J. said (at p. 12) -

"In my view there was a decision by the Director-General made after the Administrative Appeals Tribunal (Social Services Act) Regulations came into operation, a decision made under s. 15 of the Social Services Act and a decision that affirmed a determination, direction, decision or approval of an officer that had been reviewed by a Social Security Appeals Tribunal, and did so otherwise than in accordance with the decision of that tribunal. It was a decision that endowment that had been paid was not payable, that it had been paid in consequence of a failure or omission to comply with s. 104A, that it would not otherwise have been paid, that it was recoverable and that it should be recovered."

(Underlining added).

Fitzgerald J. said -

"In my opinion, although the recoverability of overpaid endowment under sub-s. 140 (1) depends on whether or not the specified circumstances in fact exist, the Director-General's determination that they do exist and that an amount is recoverable is an administrative pre-requisite to any duty to recover that amount. Given such a duty, the Director's determination that an amount is recoverable will inexorably lead to a decision to recover as part of the administrative process leading to recovery; . . . ."

and later -

"The ultimate determination that there were recoverable overpayments led to a demand for repayment. There is no doubt, in my view, that that demand for repayment was a "decision" which may be reviewed:"

For reasons he gave his Honour said -

"Accordingly, I am of opinion that . . . . the Administrative Appeals Tribunal did have jurisdiction to review the decision constituted by a demand for repayment."

In my opinion the facts in and their evaluation in the "decision" made by the officer in Hangan and later by the AAT, were significantly different from the "decision" made by the officer in the instant case; so different that the Hangan decision is, I suggest, of little guidance to the court in evaluating or categorising as a "decision" or otherwise the action here of the Director-General or delegates or officers in his department.

Though not specifically argued before us in the detailed sense I shall mention below, it could be contended that the Director-General did make a "decision" within the meaning of s.15A, not one intrinsic to the raising of a debit entry or that a sum was recoverable; but rather one which could be described as ". . . . affirming. . . . a determination direction decision or approval of an officer. . ." being one that had "been reviewed by a Social Securities Appeal Tribunal". The sequence of events can be traced in the s.37 documents, viz. -

(i) A recommendation (which in terms of the notional argument would have to be described as. . . . determination direction decision or approval of an officer. . . .") by Mr. R. Jackson, Regional Manager - see memo dated 2/10/79 (s.37 documents p.36 et seq.) that -

(a) an overpayment of $3564.30 be raised;

(b) a cash refund be requested.

(ii) An appeal (s.15) by respondent conveyed by letter dated about 29 April 1980.

(iii) A review approximately in May 1980 by a Social Security Appeals Tribunal of the determination etc. The result of their deliberations was - that the "appeal" should be partly upheld - in that overpayment should not be recovered beyond 29 May 1978. See memo dated 28 January 1981 (45).

(iv) The "decision" (as for the purpose of the argument it would be described) by a delegate of the Director-General made about February or March 1981 (51) in that the debit of $3632.70 be confirmed and notwithstanding the view of the Tribunal which favoured respondent.

(v) The application to the Administrative Appeals Tribunal for review of that "decision" by a delegate of the Director-General made pursuant to s.15A, not s.15 of the Act.

That the Director-General by the actions of a delegate, Mr. Wyrell (see letter to respondent dated 2 April 1981 p.52) eventually raised the amount in question from $3564.30 to $3632.70 seems to me to be irrelevant to a consideration of the steps which must be fulfilled to provide an appeal; it is the so called "decision" made by a delegate of the Director-General in respect of the action of an officer which, after review by the Social Security Appeals Tribunal, may be the subject of an application to the AAT for review; but it is not the action of the officer which is the subject of an application to the Administrative Appeals Tribunal. So in the sense mentioned, the action of the Director-General may be argued to be a "decision" and one perhaps to be described as a "decision affirming". Yet still, in terms of s.15A, what the officer, Mr. Jackson, did and what the Director-General affirmed, would have to amount to a "decision". I do not consider it did so amount. But so I may examine further submissions I proceed to treat the Director-General's action as a "decision" within the meaning of s.15A of the Act and s.25 of the Administrative Appeals Tribunal Act 1975.

I will, therefore, refer to other arguments advanced on behalf of the respondent. There has been discussion as to the import of s.140 of the Act. First, I note, however, that she was advised that she should notify any wage increase; twice she did so, as required by s.74 of the Act - cf. s.45. Each time, following her notification, there was an adjustment to her pension. The Director-General was not required to remind her of the dictates of s.74, any ignorance on her part would be no excuse for her failure. The AAT found that there was a failure by her to notify which was a cause of the overpayment; or its decision was to that effect. This finding has not and, I suggest, could not be questioned. In my opinion, the relevant and correct version of the situation in terms of s.140 is that -

"In consequence of an omission to comply with s.74 of the Act an amount has been paid by way of pension which would not have been paid but for that omission."

I suggested during argument that the "omission" referred to could have been one by persons other than the pensioner, including officers of the relevant Department. However, no argument has been addressed to this and I need not deal with it further.

There is no basis for reading into the section any implication that if there is more than one cause there should then be determined which of several or more causes is "dominant"; or that any failure by the Director-General could be said to be "dominant" or even relevant. The word "failure" in the Tribunal's Reasons for Decision is, I suggest, synonymous with "omission" in s.140.

There was neither obligation nor continued practice by the Director-General of notification by him or representation by him that there would be any notification. The respondent applicant's omission, as it happens, in my opinion on the evidence was the only cause of the total amount of this overpayment. If I am wrong as to this then in my view the omission was at least an effective and contributing cause of the overpayment.

I am aware and regret that this view of the inapplicability of considerations such as "dominant" or "effective" cause is at variance with earlier decisions of the Administrative Appeals Tribunal - see e.g. Matteo, Gee, Buhagiar and Forbes. But this view is not merely my own; it accords with the views of the members of the court in Hangen. There have been, further, submissions as to the meaning in s.140 of phrases "in consequence of" and "but for". Whether causality or a sequence of events or both is implied is, I agree, to be discerned from the context in which they are used. The use of the two phrases, in my view, strengthens the argument that there is an intendment of a relationship of causality. This, I suggest, receives support from authority, though dealing with another section and statute - see per Gibbs J., as he then was, in Reseck v. Federal Commissioner of Taxation (1975) 133 C.L.R. 45 at p.51. Jacobs J. did not agree that the words "in consequence of" in the section there being considered imported a concept of dominant cause; he said a consequence in this context is not the same as a result. It does not import causation but rather a "following on". The section there being considered did not include the phrase "but for". Denning L.J., as he then was, said in Cork v. Kirby Maclean Ltd. (1952) 2 All E.R. 402 at p.407

"Subject to the question of remoteness, causation is, I think, a question of fact. If you can say that the damage would not have happened but for a particular fault, then that fault is in fact a cause of the damage; but if you can say that the damage would have happened just the same, fault or no fault, then the fault is not a cause of the damage. It often happens that each of the parties at fault can truly say to the other: "But for your fault, it would not have happened." In such a case both faults are in fact causes of the damage."

With respect, I have not found this exposition entirely satisfactory; it does not tell us whether the second fault had any quality of contributing to or effecting damage. However, I do not consider these words inconsistent with those of Dixon J., as he then was, in Lindeman Limited v. Colvin (1946) 74 C.L.R. 313 at p.320. As to the "but for" test, see generally Clerk and Lindsell on Torts 14th ed. para. 308; Fleming, The Law of Tort 5th ed. p.180; Chitty on Contracts, 24th ed. para.1564-7 - see note 96 at p.734; "Causation in the Law" Cambridge Law Journal 1961, 62 at p.63 et seq; Hart and Honore Causation in the Law 1959 Chap.V. In McIntosh v. Federal Commissioner of Taxation 25 ALR 557 the question was whether an amount was paid "in consequence of retirement" within the meaning of the Income Tax Assessment Act 1936 s.26(d). Brennan J. said at p.560 the phrase requires that the retirement "be the occasion of, and a condition of, entitlement to the payment." Toohey J. thought that "in consequence of" referred to a connection not simply temporal; "retirement was a prerequisite to payment". See p.564. Lockhart J., referring to that phrase said at p. 571 -

"It has a wider connotation than causation and assumes a connection between circumstances of retirement and the act of payment such that the payment can be said to be a "following on" of the retirement."

See also Braby; Preston v. Norfolk County Council (1947) 1 K.B. 775 at p.785; Christies Stone Quarries Pty. Ltd. v Corporation of the City of Tea Tree Gully (1979) 22 S.A.S.R. 224.

Though dictionaries, even legal dictionaries are not, I realise, "authoritative exponents", cf. The Queen v Peters (1885-86) XV1 Q.B.D. 636 at p.640, I note the reference to "in consequence of" in Ballentine's Law Dictionary" 3rd ed. p.602 and to a sequence of events in the definition of "consequence" in Black's Law Dictionary 5th ed. p. 277.

The version of the situation which I have attempted to express in words earlier will be valid whether causality or sequence only is to be found to attract the operation of s.140. And if one could decide that an omission was a cause of overpayment, such an omission is within the ambit, at least, of the expression "in consequence of". The words of Lockhart J. lastly quoted seem to me to support this view. Thus, as I have said, the omission by the respondent, was the only and the effective cause of overpayment.

The decision of the Tribunal included the exercise of a discretion thought to reside in the Director-General. If there was such a discretion, then, as expressed by the Tribunal assuming it was entitled to attempt to exercise it, it was not, so far as appears from the Reasons for Decision, properly exercised. The exercise of discretion in the respondent's failure was plainly influenced by its view that the failure of the Department to perform its function was the substantial or dominating cause of the overpayment; and the respondent's failure was a "contributory", not an "effective" cause. This view should not have operated at all in the formation of any decision exercising a discretion: firstly because there was no such function and therefore no failure; and secondly because, on the uncontested facts, the respondent's failure must be regarded as "effective" and not merely "contributory". Further, a relevant matter does not seem to have been considered i.e. that this was an illegal overpayment, of public money, to one who apparently knew of her duty to advise of the increases of salary and had already been reminded of this twice in the past. Moreover, if there were thought to be matters of hardship making the immediate payment of portion of the overpayment unacceptable, i.e. so far as the AAT decision does so, one might have expected that the discretion would have been so exercised as not to preclude forever and in all circumstances recovery which might in the future be well within the financial competence of the respondent. I should add that if there was a discretion in the Director-General not to seek recovery, and it is possible to imagine circumstances where as a matter of commercial common sense he would wish to refrain at least for some time from so doing, I doubt very much if there was a discretion of the kind referred to by Counsel in argument before us or as propounded in Gee and quoted in Forbes.

Argument has also been addressed to us as to whether the decision (whatever it was) was made "under this Act" i.e. s.15 of the Act. The "decision", if it was one, was in respect of moneys thought, at least, to have been illegally paid. The reasoning in The Australian National University v. Arthur Lee Burns, unreported 8 October 1982, (A.C.T. G18 of 1982) at pp.22, 23, assists me to the view that here there was a discovery of money overpaid (and thus in one sense not paid under any Act). Any payer in such circumstances and in the ordinary course managing his enterprise would want to at least record it or to ask that it be repaid. What appears to me to be the reasoning in the case last cited, assists to the conclusion that any "decision" was merely part of action taken by public servants to keep track of public moneys or protect the revenue and not specifically referable to or intrinsically bound up with the administration of the Act i.e. that any "decision" by the officers or delegates was not one "under this Act". But s.15A does not qualify or limit the decisions to which it refers by the phrase "under this Act".

The order which this court should make has caused me concern. I have had the benefit of seeing the reasons prepared by Sheppard J. I note that the Administrative Appeals Tribunal Act 1975 s.44(1), referring to appeals to this court from decisions of the AAT, states -

". . . . .

(4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.

(5) Without limiting by implication the generality of sub-section (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court."

My overall views are, I suggest, sufficiently indicated in what I have written; and I have been inclined to confirm as being an "appropriate" order what was stated in the s.37 documents as to recoverability. (See p.5 of these Reasons). But, finally, I have come to the conclusion that it will be sufficient to set aside the decision of the AAT. It would not appear to be a correct or even practical approach to attempt to set aside the decision of the AAT in part - i.e. to confirm the decision so far as one considers it correct; and to set aside that part of it thought to demonstrate error. There was one decision.

The orders I propose are, therefore -

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal be set aside.

JUDGE2

Mrs. Hales is a single mother. Her daughter is seventeen years of age and an epileptic. Mrs. Hales was entitled to a supporting mother's pension, but was told by the Department of Social Security ("the Department") on 22 June 1978 that she was no longer entitled to the pension because of the amount of her salary as an employee of the Postmaster-General's Department.
Nearly two years later, on 28 March 1980, the Department wrote to Mrs. Hales, informed her that she had been overpaid and asked her to refund $3,564.30. She appealed to a Social Security Appeals Tribunal, a body established by direction of the Minister to assist the Director-General in the administration of the Social Services Act 1947 ("the Social Services Act"). It is mentioned in various sections of the Social Services Act but is not constituted by it. The Tribunal recommended that the appeal be partially upheld and a small reduction made in the amount claimed by the Department. The Tribunal's recommendation was not accepted by the Delegate of the Director-General. The Department wrote to Mrs. Hales on 2 April 1981, informed her that, as a result of the Delegate's decision, the overpayment of her supporting mother's benefit had been recalculated at $3,632.70 for the period 3 December 1974 to 25 May 1978 and that, if she was dissatisfied with the Delegate's decision, she may be entitled to apply to the Administrative Appeals Tribunal for a review of the decision.
Mrs. Hales then appealed to the Administrative Appeals Tribunal. That Tribunal accepted the evidence of Mrs. Hales that she believed during the whole of the relevant period that she remained entitled to the benefit which she had been receiving since 1973 and that she expected the Department to send her forms yearly which would require her to state her current income. The Tribunal held that the Department failed to perform its functions in certain respects and that its failure was the 'substantial or dominating' cause of the overpayment. The Tribunal also found in favour of Mrs. Hales on a separate ground namely, that to seek recovery of the overpayment would cause extreme hardship to her and her daughter and that there would be scant chance of effectively recovering the money. The Tribunal decided that Mrs. Hales should refund overpayments attributable to the first pension year after the review in 1974, but not thereafter.
The Director-General appealed from that decision to this Court pursuant to s. 44 of the Administrative Appeals Tribunal Act 1975 ("the Administrative Appeals Tribunal Act").
It was agreed before this Court by both parties that Mrs. Hales' pension was overpaid during the period 3 December 1974 to 25 May 1978 in the sum of $3,632.70. Counsel for the Director-General stated that there was no suggestion that Mrs. Hales had in any way misled the Department by making any false statement or representation and that statements made by her on the relevant forms were entirely accurate.
The first submission by counsel for the Director-General was that the Administrative Appeals Tribunal did not have jurisdiction on the ground that there was no 'decision' of the Director-General which could be the subject of an appeal to it.
When the Director-General has, pursuant to s.14 or s.15, made a decision affirming or varying a decision or approval of one of his officers that has been reviewed by a Social Security Appeals Tribunal, an appeal lies to the Administrative Appeals Tribunal: s.15A.
Section 14 provides:-
'Whenever it appears to the Director-General that sufficient reason exists for reviewing a determination, direction, decision or approval of an officer under this Act (including a determination, direction, decision or approval of the Director-General), the Director-General may review the determination, direction, decision or approval and may affirm, vary or annul it.'
Section 15 provides:-
'A person affected by a determination, direction, decision or approval of an officer under this Act (except a determination, direction, decision or approval of the Director-General) may, within such time (if any) as is prescribed, appeal to the Director-General and the Director-General may affirm, vary or annul the determination, direction, decision or approval."
I am in some doubt whether the relevant decision in this case falls within either s. 14 or s. 15, but I think that the appeal should be decided on the basis that it does, especially as no submission was made to the contrary by the Director-General and the sections should not be construed too strictly or technically.
'Decision' is a word of indefinite and wide meaning. It was described by Deane J. in Director-General of Social Services v. Chaney (1980) 31 A.L.R. 571 as a word of indeterminate meaning (at p. 590). I described it as a word of aoristic meaning in Riordan v. Parole Board of the A.C.T. (1981) 34 A.L.R. 322 (at p. 327). The word 'decision' is defined by sub-s. 3 (3) of the Administrative Appeals Tribunal Act, a definition described in Chaney's Case by Deane J. with whose reasons for judgment Fisher J. agreed, in these terms (at p. 591):-
'Section 3(3) of the Act defines a reference in the Act to a 'decision' as including a reference to a litany of activities of both a positive and negative nature culminating in 'doing or refusing to do any other act or thing'. The provisions of s.3(3) would seem more apposite to define a reference to the substantive 'decision' of the original decision maker than to confine the scope of a reference to a 'decision' of the Tribunal upon review. Subject to that qualification, the specific activities mentioned in the definition in s.3(3), which are in the nature of effective action rather than intermediate 'decision' on the path to such action, provide some indication that a reference to 'decision' in the Act is, prima facie, a reference to the ultimate or operative determination rather than a reference to an adjudication or determination of issues arising in the course of making such an ultimate or operative determination. The indication which s.3(3) provides to that effect is, however, slight.'
The Administrative Appeals Tribunal has jurisdiction to review decisions made in the exercise of the powers conferred by particular statutes not by the Administrative Appeals Tribunal Act itself. Those statutes are many and diverse. They include the Social Services Act 1947, the Migration Act 1958, the Compensation (Commonwealth Government Employees) Act 1971, the Repatriation Act 1920, the Customs Act 1901, and the Insurance Act 1973. Each of the statutes conferring jurisdiction on the Administrative Appeals Tribunal covers a wide range of decisions.
The definition of 'decision' in sub-s.3(3) seeks to embrace them all by its ambulatory character. One cannot therefore look to the definition in sub-s.3(3) to determine definitively the meaning of the word 'decision'. It must take its colour and content from the enactment which is the source of the decision itself. No narrow or pedantic approach is called for in determining whether a decision falls within the scope of review by the Administrative Appeals Tribunal. The multiplicity of statutes which continue to grow and to confer jurisdiction on the Administrative Appeals Tribunal, and the manifold and diverse circumstances which attract the power of the decision maker, all call for a liberal approach to the definition of the word 'decision', although it is important to bear in mind the warning of the late Professor de Smith in his work Judicial Review of Administrative Action 4th ed. 1980 at p. 3:-
'Judicial review of administrative action is inevitably sporadic and peripheral. The administrative process is not, and cannot be, a succession of justiciable controversies. Public authorities are set up to govern and administer, and if their every act or decision were to be reviewable on unrestricted grounds by an independent judicial body the business of administration could be brought to a standstill. The prospect of judicial relief cannot be held out to every person whose interests may be adversely affected by administrative action.'
It is necessary to examine the Act which confers jurisdiction on the Administrative Appeals Tribunal and the administrative framework in which it operates to determine whether there is a 'decision' susceptible of review under the Administrative Appeals Tribunal Act. A pronouncement which alters rights or imposes liabilities is readily classified as a 'decision', but the word has a wider scope. It may include a declaration or statement which has a real practical effect although not altering rights or imposing liabilities: Duncan v. Defence Force Retirement and Death Benefits Authority and Commonwealth of Australia 3 A.L.D. 113 (at p. 117).
A vexing problem in the present case has been to identify the relevant decision said to have been made and to be reviewable by the Administrative Appeals Tribunal. It received various descriptions in the course of the litigation. Its clearest formulation is that it is a decision that a benefit which had been paid to Mrs. Hales was not payable, that it had been paid in consequence of her failure or omission to notify changes in her income, that it would not otherwise have been paid, that it may be recovered and that it should be recovered.
It was submitted by counsel for the Director-General that the decision did not affect in any way the rights, obligations or interests of Mrs. Hales, that it had no ultimate or operative effect and that there would be no such effect until the Court mentioned in sub-s.140(1) of the Social Services Act decided that the overpayment in question was a debt due to the Crown. The decision would then be that of the Court, not that of the Director-General. Recoverability springs from the existence of the circumstances set out in sub-s.140(1) which is a self-operating provision. Further, so the argument proceeded, s. 70C of the Audit Act 1901 gives the power to the relevant Minister to waive payment of moneys due to the Crown, so that the Director-General had no power to decide to sue Mrs. Hales once he concluded that the ingredients of sub-s.140(1) existed and could be established in the appropriate court. Recoverability cannot depend upon a decision of the Director-General. A legal right is created by sub-s.140(1) which can be waived only by the Minister under s.70C. Therefore there is no relevant decision that can be made by the Director-General in this case. So runs the argument of counsel for the Director-General.

(2) Notwithstanding anything contained in this Act (other than sub-section (3) of this section), where, for any reason, an amount has been paid by way of pension, allowance, endowment or benefit which should not have been paid, and the person to whom that amount was paid is receiving, or entitled to receive, a pension, allowance or benefit under this Act (other than a funeral benefit under Part IV A), that amount may, if the Director-General in his discretion so determines, be deducted from that pension, allowance or benefit.

(3) An amount referred to in sub-section (2) that has been paid otherwise than by way of family allowance under Part VI shall not be deducted from family allowance payable under Part VI."

Pursuant to the obligation cast upon him by s.37 of the Administrative Appeals Act, the Director-General lodged with the Tribunal a statement setting out the findings on material questions of fact and other documents as required by the section. The statement set out the decision which the Director-General said had been made. That decision was stated to be as follows:

"THE DECISION of the delegate of the Director-General of Social Services was that

(a) the applicant had failed to notify the Department by 27 November 1974 of an increase in her income as required by sub-section 74(2) of the Act (as it was at that time);

(b) the applicant failed or omitted to notify the Department of subsequent increases in her income with the advice received from her on 29 May 1978;

(c) the applicant was paid supporting mother's and supporting parent's benefits from 3 December 1974 to 25 May 1978 amounting to $3632.70 which would (sic) have been paid but for her failure or omission; and

(d) the amount of $3632.70 was recoverable from the applicant as a debt due to the Commonwealth pursuant to sub-section 140(1) of the Act in consequence of her failure or omission to notify the Department of increases in her income."

It is difficult to see how any of the matters dealt with in the four paragraphs could be decisions in any real sense. They are more appropriately described as findings. It may be, however, that one could properly say that the finding that the sum of $3,632.70 was recoverable as a debt due to the Commonwealth in paragraph (d) was in reality a decision to recover that sum. That is how both counsel approached the matter but counsel for the Director-General nevertheless contended that if that were the decision, it was not a decision for the purposes of the Administrative Appeals Act. That is a matter of which I shall say more.

There is other material which would suggest that in addition to there possibly being a decision to seek to recover the amount claimed as a debt due to the Commonwealth there was a decision to debit the amount to the respondent's account. Included amongst the papers which were before us was a recommendation dated 13 February, 1981, by an officer who described himself as, "Assistant Director (Appeals)". His recommendation was, inter alia, that "a debit of $3632.70 be confirmed". His recommendation was concurred in by other officers and approved on 2 March, 1981, by an officer who was the delegate of the Director-General.

After the approval an officer wrote to the respondent informing her of what had been decided. The relevant parts of the letter are as follows:

"The delegate concluded that you failed to notify the Department of your increased earnings by 27 November 1974 and that all supporting parent's benefit paid to you from the following payday 3 December 1974 is an amount which should not have been paid. . . . . . . . . . . .

As a result of the delegate's decision the overpayment of supporting parent's benefit has been re-calculated at $3,632.70 for the period from 3 December 1974 to 25 May 1978. Arrangements will be made for you to discuss with the Regional Manager, Richmond how you will repay the debt."

The respondent was informed that if she were dissatisfied with the decision, she "may be entitled to apply to the Administrative Appeals Tribunal for a review of the decision".

The Tribunal thought that the decision appealed against was a decision of a delegate to recover moneys overpaid to the respondent. The opening paragraph of its reasons for decision is as follows:

"This is an application by Jeanette Shirley Hales ('the applicant') to review a decision of a delegate of the Director-General of Social Services ('the respondent') seeking to recover monies paid to the applicant for supporting mother's benefit in the sum of $3,632.70 pursuant to sub-section 140(1) of the Social Services Act 1947."

The Tribunal's conclusion was that only so much of the overpayment as was attributable "to the first pension year after the review in 1974" should be refunded. The Tribunal's formal decision, so far as it is relevant, was as follows:

"The Tribunal decides to set aside the decision under review and remits the matter to the Director-General of Social Services for reconsideration with the direction that only so much of the overpayment claimed as is referable to the first pension year after the review of the applicant's pension in 1974 be recovered from the applicant."

At the hearing before the Tribunal the respondent gave evidence to the effect that she thought that the Department would send her forms yearly "so that I would fill them in and send them back to them". She said she believed during the whole of the relevant period that she remained entitled to the benefit which she had been receiving since 1973. In her cross-examination she repeated that she had expected the Department to send her forms which would require her to state her current income every twelve months. This evidence was accepted by the Tribunal. In the course of its reasons it said:

"I accept that it was the applicant's genuine belief that the manner of review would be instituted by the Department. On these facts the applicant was given to understand that there would be departmental review annually. In my view it is proper to regard the failure of the Department to perform its functions as the substantial or dominating cause of the overpayment. The applicant's failure can best be regarded as a contributory cause but not the effective cause."

The Tribunal applied an earlier decision in Matteo v. Director-General of Social Services (18 December, 1981, as yet unreported) in which it was decided "that s.140(1), considered as a whole, requires that the failure or omission be the effective, and not merely a contributory, cause of the overpayment"; paragraph 64, p.26.

The Tribunal also found in favour of the respondent upon an independent and alternative ground. The Tribunal said:

"Even if I am wrong in this conclusion there are in this case other factors which warrant the exercise of a discretion against substantial recovery from this applicant. There would be, in my view, extreme hardship to the applicant and to her 16 year old invalid pensioner daughter. There would also be scant chance of action of recovering the monies being effective."

The evidentiary basis for these conclusions is to be found in evidence given by the respondent at the hearing before the Tribunal. Her daughter is 16 years of age and an invalid because she is an epileptic. She is unable, apparently, to engage in employment and is in a sheltered workshop from which she receives $11 per week. She also receives an invalid pension. That pension is, of course, not in question in these proceedings. The respondent had recently been in hospital at the time she gave her evidence. Subject to absence from her employment because of her admission to hospital, she is employed by Telecom as a clerk. At the time of her evidence she was in receipt of a fortnightly salary of $461.98 gross. Her tax instalment deduction, union fees, superannuation, payments in discharge of a personal loan, her rent and her television hire amounted to $286.44 fortnightly. She was thus left with an amount of $87.77 per week for other living expenses including food. No doubt the daughter's pension and earnings at the workshop are pooled with her earnings for this purpose. She has $400 in an account with a credit union; otherwise, as I understand her evidence, she has no savings at all and no other assets.

When the respondent first received the Director-General's demand for repayment of the amount in question, she wrote a letter in which she said, amongst other things, that she would like to suggest that if, after further examination of her files, it still appeared that her appeal would not be upheld, she be given the opportunity to pay any moneys owed to the Department in instalments. She said that she was solely supporting her daughter who was then 14 years of age and was "finding it quite a struggle" surviving and keeping her daughter at school with the salary she earned. She concluded her letter by saying, "If at all possible I would like to repay the amount outstanding in small weekly instalments".

I should perhaps add that the letter was written well before the evidence which she gave to the Tribunal. The date of it is not shown but receipt stamps placed upon it by the Department show that it was received in or about August 1980.

The Tribunal concluded its reasons as follows:

"On all these facts it seems to me that the proper course is to direct that the applicant refund overpayments attributable to the first pension year after the review in 1974 but not subsequent years which should have been disclosed to the respondent by the annual review which the applicant understood on good grounds, would be conducted."

The following submissions were made on behalf of the Director-General.

1. The Director-General had made no decision to which the Administrative Appeals Act applied with the consequence that the Tribunal had no jurisdiction to determine the appeal brought to it by the respondent.

2. It was wrong in law to make the Director-General's right to debit the overpayment or seek to recover it dependent upon whether the respondent's omission to notify increases in her income was the effective cause of the overpayment having been made. The Tribunal's decision in this respect disclosed that it had applied a wrong construction of s. 140 (1) of the Act.

3. The Director-General had no discretion not to debit the account of the respondent or to seek to recover the amount of the overpayment from her. Accordingly, the Tribunal had no jurisdiction to substitute for the Director-General's decision a decision based on discretionary grounds.

4. In any event the exercise of any discretion he had ought not, as a matter of law, to have been disturbed by the Tribunal.

The respondent's submissions were:

1. Both the decision to debit the respondent's account and to seek to recover the amount of the overpayment from her were decisions for the purposes of the Administrative Appeals Act.

2. The Director-General had a discretion as to whether he would debit the amount of the overpayment to the respondent's account and as to whether he would seek to recover it from her. This discretion had been wrongly exercised by the Director-General and correctly exercised by the Tribunal acting in his place. At least the applicant was not able to show that the discretion as exercised by the Tribunal had been exercised contrary to law.

3. On the proper construction of s. 140 (1) of the Act recovery could only be made if the omission was the effective cause of an overpayment. Here the evidence was such that it was open to the Tribunal to find that the effective cause of the overpayment was not the omission but the Department's failure to send the respondent notices asking her to report changes in her income each twelve months.
I deal first with the question of whether there was a decision by or on behalf of the Director-General which could, as a matter of law, be the subject of an appeal to the Tribunal. A right of appeal to the Tribunal from decisions of the Director-General is conferred by s. 15A of the Act. Sub-section (1) of that section is as follows: " Where the Director-General has, on or after 9 September 1980 in pursuance of section 14 or 15, made a decision affirming, varying or annulling a determination, direction, decision or approval of an officer, being a determination, direction, decision or approval that has been reviewed by a Social Security Appeals Tribunal, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, an application may be made to the Administrative Appeals Tribunal for review of the decision of the Director-General."

Section 29 of the Administrative Appeals Act is not of relevance.

Sections 14 and 15 of the Act are as follows:

"14. Whenever it appears to the Director-General that sufficient reason exists for reviewing a determination, direction, decision or approval of an officer under the Act (including a determination, direction, decision or approval of the Director-General), the Director-General may review the determination, direction, decision or approval and may affirm, vary or annul it.

"15. A person affected by a determination, direction, decision or approval of an officer under this Act (except a determination, direction, decision or approval of the Director-General) may, within such time (if any) as is prescribed, appeal to the Director-General and the Director-General may affirm, vary or annul the determination, direction, decision or approval."

It is not clear to me how it is that the approval of the decisions to debit the overpayment in question and to seek to recover it from the respondent made on 2 March, 1981, falls within one or both of these sections. But no argument was addressed to us that it did not and the sections should not be given a too strict or technical construction. With some hesitation I therefore propose to proceed upon the basis that if either of the decisions relied upon by the respondent would otherwise be a decision for the purposes of the Administrative Appeals Act, no warrant for not so treating them arises by reason of the provisions of ss.14, 15 and 15A of the Act.
The relevant provisions of the Administrative Appeals Act are sub-sections (1), (3) and (4) of section 25, the inclusive definition of the word "decision" in subsection 3(3) and sub-sections 43(1) and 44(1). These are well known provisions and I do not set them out.
On 17 December, 1983, after we had reserved our decision in this matter, a differently constituted Full Court of this Court (Fox, Toohey and Fitzgerald JJ.) published its decision in Director-General of Social Services v. Hangan. In my opinion that case determines what this Court's decision should be in relation to the first and second of the DirectorGeneral's submissions earlier set out (pp.14-15 hereof). It is true that if we were minded to do so, we could express a different view. But I think this would be most undesirable unless we were clearly of opinion that a different conclusion was to be preferred. Consistency of decision and the certainty which results therefrom are vitally important for the general administration of the law.
I confess to having had, until the judgments in Hangan's case were published, reservations as to whether there was in this case a decision for the purposes of the Administrative Appeals Act. With great respect those reservations have not been entirely dispelled by what is there said, nor by what Lockhart J. has said in his judgment which I have had the advantage of reading. Nevertheless I do not feel disposed to disagree with the conclusions reached by other judges if only for the reason that I do not myself have a clear opinion that there should be a different outcome. Nor do I consider it necessary, bearing in mind that four judges are clearly of opinion that there is a relevant decision, to analyse the position myself. However, part of the reasons I have for my disquiet about the matter will become more apparent when I come to deal with the Director-General's fourth submission.
I should make it clear that in my opinion no point of distinction of substance between Hangan's case and this case is revealed by a consideration of the judgments delivered in the former case. The only difference in the legislation which is involved is in the difference between s. 15A of the Act, which section applies in this case, and Part XXIVA of the Schedule to the Administrative Appeals Act which applied in Hangan's case. There is no material difference between the two provisions. There is, in my opinion, no relevant factual difference between the two cases. The benefits are not the same but the critical provision is s. 140 of the Act and it arises for consideration in both cases.
There was not raised in Hangan's case the question of whether a decision to debit the respondent's account with the amount of the overpayment was a decision for the purposes of the Administrative Appeals Act. But, since it is authority for the proposition that a decision to treat the overpayment as recoverable and to take proceedings to recover it is such a decision, there is no need to express an opinion on whether a decision to raise such a debit is a relevant decision. Accordingly I express no view on that question.
For the reasons I have given the Director-General's first submission should be rejected. The matters raised by his second submission concern the construction of s. 140 of the Act. In this regard I am respectfully in full agreement with the judgments which have been delivered in Hangan's case. It would be superfluous for me to add my own analysis to those of the judges in that case. As Fox J. said (p. 7) it is sufficient if the failure or omission to comply with a provision of the Act is a contributing cause of the overpayment. It follows that I would uphold the Director-General's second submission.
I turn to consider his third submission. The submission is based on the decision of the Privy Council in Auckland Harbour Board v. The King (1924) A.C. 318 and upon s.70C of the Audit Act 1901. The Auckland Harbour Board case is authority for the proposition that no money may be taken out of the consolidated fund into which the revenues of the State have been paid, except under a distinct authorisation of Parliament; a payment made without that authority is illegal and ultra vires, and the money, if it can be traced, may be recovered by the Government (p.327). There are many instances of the application of this principle. Two are to be found in the decisions of Newton J. in Commonwealth of Australia v. Burns (1971) V.R. 825 and the Court of Appeal of New South Wales in Attorney-General v. Gray (1977) 1 N.S.W.L.R. 406. There it was decided that in an action for recovery based on the principle, the defendant could not successfully rely on a defence by way of estoppel.
These authorities were said to compel the conclusion that the Director-General had no discretion not to proceed to recover the overpayment which has here occurred. That was said to be a necessary consequence of there being no parliamentary authority for the overpayments of benefit which were mistakenly made.
Reference was made to s.70C of the Audit Act for the purpose of showing that it would only be if the procedure there provided for were followed that a debt such as that owed by the respondent here could be written off and consequently not made the subject of a recovery action. Relevantly the section provides that the Minister, that is the Minister for Finance, shall have, and shall be deemed at all times to have had, power to write off, inter alia, irrecoverable debts and overpayments.
I would reject the Director-General's third submission. In my opinion neither the Auckland Harbour Board case nor the provisions of s.70C of the Audit Act are of any relevance to the question of whether he has a discretion to decide whether he will take recovery proceedings. By s.7 of the Act the Director-General is, subject to any direction of the Minister, that is the Minister for Social Services, to have the general administration of the Act. Thus it is he who is to exercise, subject to the Minister's direction, the powers and functions which need to be exercised for the purposes of the legislation. Some of these are conferred in express terms; some arise by implication.

Section 140 of the Act provides only that an overpayment shall be recoverable. It does not say that the Director-General must take proceedings to recover it. The fact that the benefit may have been paid without parliamentary authority provides no reason why he should. He must make the best judgment he can as to whether steps should be taken to pursue a person to whom an overpayment has been made.
In the administration of an Act such as that in question here there will, however careful those charged with its administration are, be caes where overpayments are made. Some will be due to fraud; others will be due to honest mistakes on the part of payees or of departmental officers; yet others may be due to the malfunction of machines which calculate and process payments. In many cases the fact that an overpayment has been made may never be detected.
If an overpayment is detected, the question will arise as to whether it is sensible to pursue the person to whom it has been made. He may be quite impecunious; that would be likely to be the case more often than not in the area of social service benefits. The pursuit of such a claim may involve the throwing away of good money after bad. In other cases a compromise may be offered. Is it to be suggested that the Director-General has no power to accept half of what is owing if that seems a sensible course having regard to a pensioner's means? In other cases wisdom might indicate that action should await the day when a payee's financial circumstances may change. There may be something known of his private affairs which would suggest that his fortunes may change for the better at some future time. Or it may be a case where the provisions of sub-section 140(2) may be thought to be likely to become applicable in the future due to the payee then becoming entitled to a different benefit under the Act. In such a case the Director-General is expressly vested with a discretion to determine whether he should apply the sub-section or not.
All these considerations strongly suggest that the Director-General should have a wide discretion to determine whether he should take steps to recover an overpayment. Such a discretion is exercised daily by people in commerce. It is not a discretion which should be denied to an officer such as the Director-General unless legal principle plainly requires that it should be.
In my opinion the Auckland Harbour Board case is authority for no more than that a payment made without parliamentary authority may be recovered. I have emphasised the word "may" because it is the word used by Viscount Haldane in the judgment which he delivered on behalf of the Board (supra at p.327). Thus in no sense can the case be said to be one which decides that action must be taken to recover moneys paid without parliamentary authority. All it and the later cases decide is that an action for recovery lies and estoppel will not assist the defendant. In my opinion the provisions of sub-section 140(1) are but a legislative statement of the principle.
Section 70C of the Audit Act is not a section dealing with rights of recovery of moneys due to the Crown or whether action should or should not be taken to recover them. It is concerned, inter alia, with the circumstances in which debts and overpayments may be written off. It is to be observed that its terms are facultative. Thus it does not necessarily follow that the Director-General himself has no power to write off as irrecoverable moneys which have been overpaid. I express no conclusion on that question but I have in mind the difficulty which would arise if a recovery claim were compromised upon the basis of a partial payment and a release of the balance.
No other legal principle or legislative provision was relied upon by the Director-General for his submission. It follows, in my opinion, that ss.7 and 140 of the Act provide him with a discretion to proceed to recover an overpayment or to do nothing. I should add, however, that in ordinary circumstances his public duty would require him to take steps for the recovery of an overpayment. It would only be if the circumstances of the case were such as to indicate a sound reason why recovery action should not be taken that he would be justified in not acting.
In saying what I have earlier, I have deliberately omitted from my examples cases where compassionate considerations might indicate that there ought not to be any steps taken. I have omitted them because I wished to deal separately with the question of whether compassionate considerations may properly be taken into account by the Director-General when he exercises the discretion which he has. It will be convenient to resolve that question when I come to the fourth submission. In a sense the question may not very often arise. In most cases of severe hardship the person who has received the overpayment will be impecunious.
For the reasons given I would, as I have said, reject the Director-General's third submission.
I turn to consider the Director-General's fourth submission. I should first state my conclusion on the question of whether or not it is appropriate for the Director-General to take into account compassionate considerations in determining whether or not to institute proceedings for recovery. In my opinion it plainly is. The legislation provides for the payment of a variety of benefits to different classes of people who will usually have one thing in common; they will be impecunious and in straitened circumstances. Very often their stories will be quite tragic. I find myself in respectful agreement with what was stated by the Administrative Appeals Tribunal in Gee v. Director-General of Social Services (No.2) (25 November 1981, unreported). The Tribunal, which was presided over by the President, Davies J., said (pp.11-12): "Whatever be the correct interpretation of the sub-section, we think that any action for recovery taken under ss.7 and 140(1) must be taken pursuant to the exercise of a discretion on the part of the Director-General who, in recovery actions, should have regard to the total circumstances of the case. He is administering social welfare legislation and properly should have regard, inter alia, to any financial hardship which may result from an action for recovery. ... In determining whether to seek a recovery, the Director-General may, in our view, have regard to all the particular circumstances of the case and to all other matters relevant to the administration of social welfare legislation."

The sub-section referred to by the Tribunal is, of course, sub-section 140(1) of the Act.

The respondent's case is put simply as follows:-

1. The Director-General has a discretion as to whether to take steps to recover the overpayment or not.

2. The Administrative Appeals Tribunal has power to review the exercise of that discretion. Pursuant to sub-section 43(1) of the Administrative Appeals Act, it may exercise all the powers and discretions that are conferred by the relevant enactment on the person who made the decision, that is the Director-General in this case.

3. The Tribunal has exercised powers and discretions vested in the Director-General, that is it has decided in the exercise of those powers and discretions that no steps to recover the overpayment should be taken.

4. No error of law is disclosed in what it has done and thus no occasion arises for this Court to interfere pursuant to sub-section 44(1) of the Administrative Appeals Act.

I can best indicate the submissions made on behalf of the Director-General by quoting the submission made by senior counsel. He said that the discretion "was not exercised properly in this case". He added:

"We say if there is a discretion that is only part of the matter, that one must in such circumstances take into account and carefully weigh factors such as the following; first, that there is public money that has been paid out; secondly, that there was a breach of the Act; thirdly, that the situation had reached no more than a stage where the department wanted to negotiate with Ms Hales to see if she would pay it back in some way or another by instalments. Next, it ignored the fact, or did not take into account the fact that if an action were brought it is always open to the court to say it can be paid off in so much per week. Perhaps I should not say always but it is the practice in Victoria and I imagine it would be the same elsewhere.

Finally, nearly all cases of overpayment of a pension discovered some time later would almost necessarily involve hardship because persons on pensions who receive such money presumably spend it, and it is the nature of the thing that there would be hardship. It does not mean to say in the proper exercise of discretion one should not consider it, which of course one must, but it is not the only factor to be taken into account."

Senior counsel added that in his submission the Tribunal had not exercised the discretion on proper principles -

". . . in that it did not take into account all the relevant matters that it should have taken into account. It did not undertake the balancing that is the very characteristic of the proper exercise of a discretion."

I have earlier quoted that part of the Tribunal's decision in which it supplanted its exercise of discretion for that of the Director-General (p.11 hereof). Although the matter is dealt with very shortly, I would take the view that the Tribunal took into account all the evidentiary matters to which I have referred concerning the respondent's lack of means and unfortunate plight. But the essence of the complaint made by senior counsel for the Director-General was that there was no balancing of the various matters to be taken into account in deciding what should be done. The principal matter which was said to be missing was the paying of any attention at all to the fact that public moneys had been paid out as a result of a breach of the Act. Furthermore, the exercise of the discretion in this way would effectively prevent, at least for the time being, any negotiation with the respondent for payment by her of a lesser sum in full settlement of the claim, whether or not that lesser sum be paid by way of instalments, small or otherwise.

In my opinion there is substantial force in the submissions made by senior counsel for the Director-General. There is not to be found in the Tribunal's reasons any indication that it did put into the scales the consideration that the respondent had, for whatever reasons, received public moneys to which she was not lawfully entitled. To me, notwithstanding considerations of hardship which there are in this and many other cases, that must always be a paramount consideration. After all, the legislature has expressly provided for recovery of overpayments in the very legislation pursuant to which these benefits are paid. Thus it contemplated recovery from persons to whom overpayments of social service benefits had been made. So the essence of the question is whether the Tribunal's failure to mention and deal with this critical consideration establishes that it has been guilty of an error of law in the exercise of its discretion.

Having reflected on the matter I have reached the conclusion that I should not find such error. I would be slow to impute to the Tribunal a failure to have given any weight at all to the consideration that the recovery of public moneys unlawfully paid was what was at stake. It is clear that the Tribunal in the short reasons it gave for its decision was not intending to state exhaustively all that it had taken into account in deciding that there should be no recovery. And I would not readily impute to it failure consciously or otherwise to put aside the matters relied upon by the Director-General. But I emphasise that they are important and should always be taken into account in an exercise such as this.

With some hesitation I have therefore reached the conclusion that the Director-General's fourth submission should be rejected. But before I conclude, there are some further matters which I should mention. These are matters to which I said I would refer when dealing with discretion and which, in my respectful opinion, bear on the question of whether there is here a decision for the purposes of the Administrative Appeals Act.

The matters I have in mind are highlighted by reference to some statements in the decision of the Tribunal in Matteo v. Director-General of Social Services (18 December 1981). In the decision of Messrs. Smith and Prowse it is said (pp.10-12):

"The sub-section (s.140(1)) does not say, and it does not mean, 'shall be recovered in a court'. It may well be that once proceedings have been instituted in a court, or even instructions given to institute such proceedings, this Tribunal has no role to play: the matter would then have passed from the administrative to the judicial field. But in the present case we are looking at the position anterior to that situation. A request for repayment does not necessarily mean that failure to comply with the request will result in legal proceedings being taken. Indeed, in the letter of request in the present case, court proceedings were not threatened.

"In considering the question whether this Tribunal has jurisdiction in this case we have been conscious of the fact that a decision of this Tribunal that there has been an overpayment in consequence of a false statement or representation, or in consequence of a failure or omission to comply with any provision of the Act, or of the amount of that overpayment, would have no binding effect on a court in which recovery of the moneys claimed to be due to the Commonwealth was later sought. The Commonwealth would have to prove its claim under the ordinary rules of evidence and discharge the ordinary onus of proof in civil matters, assisted, perhaps, by the facilitating provisions of s.143 of the Act (cf. s.138(7)). The finding of this Tribunal would be irrelevant in such proceedings. But it does not follow that this is a compelling reason to conclude that we have no jurisdiction. What we are looking at is the anterior decision to seek recovery. . . . Most importantly, the Tribunal, in its role as a supervisory administrator, has a rather different function from that of a court which has no concern beyond resolving the question whether the moneys claimed are recoverable at law; by contrast the Tribunal may bring to notice any specific factors in the case that in its view make it unreasonable to seek recovery, or full recovery, of an amount that is strictly recoverable, and make such recommendation as it considers appropriate in the circumstances."

The first thing to notice about what the Tribunal has said is that it seems to contemplate that an action for recovery may proceed notwithstanding a decision of a tribunal that proceedings for recovery ought not to be taken. Amongst other things the Tribunal has said that its decision "would have no binding effect on a court in which recovery of the moneys claimed to be due to the Commonwealth was later sought". What I do not understand about this passage is how, if the Tribunal, standing in the shoes of the Director-General, has said that there is to be no recovery, an action can subsequently be brought. If it means that the Director-General is not bound to act in accordance with the decision, then that would seem to me to be a sound reason why there is no decision from which an appeal may be brought to the Tribunal.

Of course, upon the basis that there is a decision, the Tribunal's statements may simply be wrong and that may be enough to resolve the apparent conflict which exists. But what concerns me, as I really have earlier indicated, is the ultimate effect of a decision such as the Tribunal has made here. Is it intended forever to put an end to any steps which might otherwise have been taken for recovery of moneys, no matter what change in circumstances occur. Or is it no more than an expression of opinion that at this stage there ought to be no recovery. If the Director-General in, say, six months time again contemplates recovery will he need to demonstrate a change in circumstances or may he proceed to sue or to demand payment notwithstanding the Tribunal's decision. In other words, what effect does it have. And if he does sue, is he to be exposed to review each time a question arises as to whether he should compromise the claim for a lesser sum or accept payment in instalments or defer further action for the time being. These are matters which must arise in the day to day administration of the Act. The thought that each time any such question arises for decision, there also arises the possibility of review places, in my opinion, an appalling burden upon the Director-General and upon the Tribunal to which countless cases involving these issues will undoubtedly come.

Of course it may be suggested that in those cases, as distinct from the present, although there is a decision, it is not a decision "under an enactment". But that would seem unlikely. All the examples have a common factor, namely, the question of whether the Director-General should institute or maintain proceedings for recovery by the Commonwealth pursuant to s.140 of the Act.

These considerations suggest to me that there is not in the decision here or in any of the decisions I have postulated the ultimacy which in earlier judgments has been thought to be necessary before there will be a decision for the purposes of the Administrative Appeals Act; of. Director-General of Social Services v. Chaney (1980) 31 A.L.R. 571, especially at p.591.

Furthermore, the fact that the statute has, by s.140, expressly conferred the right of recovery upon the Commonwealth might lead one to conclude, notwithstanding the provisions of s.15A of the Act, that the legislature did not intend decisions as to whether recovery action should be taken to be the subject of appeal to the Tribunal. Persons against whom recovery was sought would, in that event, be in the same position as any defendant sued in the court in which the action was instituted. Their rights would be fully protected; they could not be adjudged liable to pay until after a full hearing in which the court would consider all matters of defence whether based on law or fact. However, as earlier said, the question of whether there is a decision is concluded by Hangan's case and I would not wish to say more about that.

For the reasons I have given the appeal should be dismissed with costs.

[1983] FCA 81

05 MAY 1983