Doelle v Department of Families Housing Community Services - [2009] FMCA 388

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DOELLE v DEPARTMENT OF FAMILIES HOUSING COMMUNITY SERVICES

[2009] FMCA 388

ADMINISTRATIVE LAW – Appeal from AAT – whether error of law – whether AAT incorrectly interpreted meaning of “special circumstances” pursuant to s.1184K of the Social Security Act – whether the AAT erred in finding settlement sum included a component for economic loss – appeal dismissed.

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act1991 (Cth)

Baker v Taylor (1906) 6 SR (NSW) 500
Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531
Hyde v Wrench (1840) 3 Beav 334; (1840) 49 ER 132
Re Beadle & Director-General of Social Security (1985) 60 ALR 225
Re Ivovic & Director-General of Social Security (1981) 3 ALN No 61

Applicant:

DOUGLAS JAMES DOELLE

Respondent:

DEPARTMENT OF FAMILIES HOUSING COMMUNITY SERVICES & INDIGENOUS AFFAIRS

File Number:

BRG 671 of 2008

Judgment of:

Burnett FM

Hearing date:

3 December 2008

Date of Last Submission:

3 December 2008

Delivered at:

Brisbane

Delivered on:

1 May 2009

REPRESENTATION

The Applicant appeared on his own behalf

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the appeal filed 9 August 2008 be dismissed.
That, subject to the appellant making application within seven (7) days of judgment for another order, the appellant pay the respondent’s costs of and incidental to the appeal to be assessed on the standard basis.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 671 of 2008

DOUGLAS JAMES DOELLE

Applicant

And

DEPARTMENT OF FAMILIES HOUSING COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

On 29 January 2008 the appellant compromised personal injuries proceedings with the Nominal Defendant (Queensland). The appellant agreed to accept $55,000 in full settlement of his claim for damages and interest including costs in respect of an incident involving a motor vehicle accident. It is common ground that the appellant’s action included a claim for past and future economic loss although there is a dispute concerning whether the settlement sum included any allowance for such sums.
On 4 February 2008 a compensation recovery Notice was issued by Centerlink to the Nominal Defendant (Queensland) in respect of $7,069.28. The Notice was premised upon the basis that the appellant had received an allowance for economic loss in the settlement sum. The appellant sought a reconsideration of the decision to issue the Notice but the reconsideration given 27 February 2008 by the delegate concluded the decision was correct. The appellant then applied to the Social Security Appeals Tribunal (SSAT) for a review of the decision on 4 February 2008. On 16 April 2008 the SSAT determined to affirm the decision. Finally the appellant applied to the Administrative Appeals Tribunal (AAT) for a review of the decision of 4 February 2008. It too affirmed the decision under review. The appellant now appeals against the decision of the AAT.

The basis for appeal

The appeal is one governed by section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). It was one permissible for transfer to this Court: section 44AA(1) of the AAT Act. By order of Justice Collier made 13 October 2008 the appeal was transferred to this Court. In particular sections 44(4) and (5) and (6) of the AAT Act apply in relation to the Court’s hearing and determination of the appeal. Those provisions require that the appeal be disposed of in a manner corresponding with the way in which they would apply to a hearing and determination of the appeal as if it was being heard by the Federal Court.
It follows the appeal is one limited to questions of law: section 44(1) AAT Act. Accordingly only questions of law posed in the appeal can be the subject of any order made by this court consequent upon the hearing of the appeal.

Grounds

The appellant maintains six grounds of appeal in his notice of appeal. The grounds however fall into two broad classes.

Ground I – IV: The AAT incorrectly interpreted and/or applied the meaning of the expression (special circumstances) pursuant to section 1184K of the SS Act 1991.

The first four grounds of appeal were directed to the matter of “special circumstances” as provided for in section 1184K of the Social Security Act1991(Cth) (the SS Act). The appellant contends that the AAT incorrectly interpreted the legislation; took into account irrelevant considerations (the availability of $13,000 from settlement monies; that he and his family continued to live out of town for a number of reasons; that they had two cars available to them; and that their living circumstances had not undergone substantial change); failed to take into account relevant considerations (his uncontradicted evidence concerning his circumstances); and, failed to give adequate reasons for its decision that there were no special circumstances.
The thrust of the appellant’s submissions were directed to the merits of his claim. Essentially he believes his circumstances, particularly his own health, the health of his wife, his adult daughter’s intellectual disability, his poor financial circumstances and his remoteness all justify a finding of “special circumstances”.
The AAT considered each of these matters in reaching its conclusion. In its approach the AAT correctly identified the test variously expressed and approved by the Federal Court in decisions such as Re Beadle & Director-General of Social Security[1]; and Boscolo v Secretary, Department of Social Security[2] and by the Administrative Appeals Tribunal in Re Ivovic & Director-General of Social Security[3].
[1] (1985) 60 ALR 225;
[2] (1999) 90 FCR 531.
[3] (1981) 3 ALN No 61
No issue was taken with the Tribunal’s identification of the appropriate test.
In Boscolo v Secretary, Department of Social Security (supra) French J (as His Honour then was) explained the term as follows:
“18. The word “special” conditioning “reasons” or “circumstances” guards the entrance to the exercise of many different statutory discretions. It is generally futile to search for its meaning in terms of other words. It is in essence instrumental, a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened. A Full Court has spoken of it as having content which is “…sufficiently understood not to require judicial gloss:” Beadle v Director-General of Social Security (1985) 60 ALR 225 at 228. If helpful to speak in terms of its meaning almost all of it comes from context. Thus man may be “special” in relation to animals generally but “…when you are speaking of poets, he may need to be a Milton”: Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 at 578; 103 ALR 684 at 686 per Purchett J. It is an elastic instruction suitable for application across a range of situations: Jess v Scott (1986) FCR187; 70 ALR 185. This is just another way of pointing to its instrumental character. That application is not to be confined by precise limits or rules: Beadle at 228. Circumstances or reasons will not necessarily fall outside the designation of “special” because they fall within a class which is widely defined or because they are circumstances or reasons which can be foreseen before they arise: Hutchins; Jarlas Pty Ltd v Commissioner of Taxation (Cth) (1987) 14 FCR 510 at 527; 84 ALR 307 at 324 (Burchett J). But that does not require that the case be extremely unusual, uncommon or exceptional: Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32; 108 ALR 322. In Beadle the Full Court, having concluded that the term “special” was sufficiently well understood not to require a judicial gloss said the matter was one for the decision-maker, in that case the Director-General of Social Security.”
The appellant complains that the AAT should have made a finding “whether it accepted all the applicant’s uncontradicted evidence in relation to the claim of “special circumstances””. It is plain from the AAT’s recitation of the facts particularly at paragraph 20 that it had proceeded upon its acceptance of the matters contended for by the appellant. Respectfully the appellant’s contention on this ground misunderstands the AAT’s acceptance of his uncontradicted contentions and indeed its reliance upon them.
The appellant also implicitly contended that the AAT’s reference to having “$13,000 available from settlement monies, that he and his family continued to live out of town for a number of reasons, that they had two cars available to them and that their living circumstances had not undergone a substantial change” were matters which were irrelevant to a conclusion of “special circumstances”. Each of those factors were clearly relevant to a determination as to whether the circumstances of the appellant’s case were “markedly different from the usual run of cases; Re Beadle & Director-General of Social Security (Supra)” or “a fact or factors which justify the making of an exception in whole or in part to the principal of liability which the Act otherwise establishes”; Re Ivovic & Director-General of Social Security (supra); or, “that there be something unusual or different to take the matter the subject of the decision out of the ordinary course”; Boscolo v Secretary, Department of Social Security (supra).
The facts were considered against the established test with the Tribunal concluding at paragraph 20:
“…there is no or insufficient probative evidence that the applicant’s circumstances are somehow unusual or exceptional such that there are “special circumstances” enough to warrant the debt being waived.”
Despite the contention in his notice of appeal that the AAT incorrectly interpreted and/or applied the meaning of the expression “special circumstances” in section 1184K of the SS Act no particulars were advanced in support of that contention. The Tribunal correctly informed itself of the relevant test and its determination was open to it on the facts of the case. Ultimately the conclusion drawn by the AAT was one of fact.
As earlier noted the ambit of this Court’s powers on appeal is limited to review of errors of law only. What the appellant seeks is impermissible merits review.
This ground of appeal fails.

Grounds V and VI

The second substantive ground advanced by the appellant was that the AAT erred in finding the settlement sum of $55,000 included a component for economic loss. In particular the appellant says the error occurred because the Tribunal relied upon a statement made by a solicitor for the Nominal Defendant (Queensland) who was not present at the mediation.
The appellant did not explain his submission beyond his notice of appeal and outline.
The AAT was not bound by the rules of evidence: section 33(1)(c) AAT Act, although it ought be guided by matters of probity, weight and relevance in determining that which it will receive in any application.
In the present case a dispute arose as to whether or not the settlement sum included an allowance for economic loss. This issue was initially agitated before the SSAT. At that hearing the appellant and his solicitor who represented him at the mediation both gave evidence. The solicitors for the Nominal Defendant (Queensland) and the mediator did not appear before the SSAT. However that fact itself does not appear to be decisive.
At the fourth dot point of its decision the SSAT said:
“It was acknowledged by Mr McGhie in response to a question from the Tribunal that this point[4] was about the effect that the Centerlink preclusion period would have on the ultimate settlement sum and that as the negotiations weren’t past $35,000 the defendant withdrew its offer to give express notification that no economic loss was included in the settlement.”
[4] In the third dot point it had been noted that the Nominal Defendant (Queensland) during the negotiations indicated that if an offer of $35,000 was rejected it would not be prepared to give the appellant a letter that no economic loss was included in the settlement.
The prospect of settlement being effected on the basis that there would be no economic loss included in the settlement sum was only canvassed in the context of an offer by the Nominal Defendant (Queensland) to pay the appellant a sum of $35,000 in full and final satisfaction of his claim. In all other respects the appellant’s claim was formulated and prosecuted on the basis of his claim including a claim for economic loss (irrespective of how fanciful).
The offer to settle upon terms excluding an allowance for economic loss lapsed by the counter offer which clearly followed in the rejection by the appellant of the Nominal Defendant’s (Queensland) offer to settle for $35,000 and a letter that no economic loss was included in that sum.[5] It was common between the parties that such a term was not offered again before settlement was achieved.
[5] Hyde v Wrench (1840) 3 Beav 334; (1840) 490 ER 132: Baker v Taylor (1906) 6S R (NSW) 500.
Upon that basis that the Tribunal was well positioned to reach the conclusion it did without needing to hear from the solicitor who appeared for the Nominal Defendant (Queensland) at the mediation. His evidence would not have materially added to the matters of which the appellant and Mr McGhie had earlier informed the SSAT. These parts of the SSAT decision and the evidence supporting were before the AAT.
It follows the AAT did not err in concluding that there was an economic loss component in the settlement sum of $55,000. Nor did it err in accepting the evidence of the solicitor for the Nominal Defendant (Queensland) that there was an economic loss component in the settlement sum that exceeded $35,000. Those facts were open to be found by the SSAT, and in turn the AAT, by reference to the material which had been presented and the admissions made to the SSAT by the appellant and his former solicitor. No error of law has been demonstrated in the AAT’s decision.
This ground of appeal is dismissed.

Orders

Appeal dismissed.
Subject to the appellant making application within seven (7) days of judgment for another order, I will order the appellant pay the respondent’s costs of and incidental to the appeal to be assessed on the standard basis.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Burnett FM.

Associate: Beverley Schmidt

Date: 1 May 2009