Doelle v Department of Families, Housing, Community Services and Indigenous Affairs
[2009] FCA 801
•24 July 2009
FEDERAL COURT OF AUSTRALIA
Doelle v Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 801
APPEAL AND NEW TRIAL — Appeal from Federal Magistrates Court exercising jurisdiction under (CTH) Administrative Appeals Tribunal Act 1975 s 44 — Whether fresh evidence receivable on appeal to Full Court of the Federal Court of Australia — Decision under appeal on a question of law — Held appellant not able to adduce fresh evidence merely to demonstrate an error of fact — Held fresh evidence not receivable
SOCIAL SECURITY — Disability support pension — Periodic payments of compensation — Preclusion period — Repayment to Centrelink of certain moneys subject to preclusion period — Whether appellant's case involved “special circumstances” — (CTH) Social Security Act 1991 s 1184K(1)
Administrative Appeals Tribunal Act 1975 (Cth) ss 33(1)(c), 44
Social Security Act 1991 (Cth) s 1184KBeadle v Director-General of Social Security (1985) 60 ALR 225 cited
Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 cited
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176 cited
Federal Commissioner of Taxation v Elton (1990) ATC 4078 cited
Groth v Secretary, Department of Social Security (1995) 40 ALD 541 cited
Jess v Scott (1986) 12 FCR 187 cited
Minister for Community Services and Health v Chi Keong Thoo (1988) 78 ALR 307 cited
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 followed
Secretary Department of Social Security v Hodgson (1992) 37 FCR 32 cited
Waterford v Commonwealth of Australia (1987) 163 CLR 54 appliedDOUGLAS JAMES DOELLE v DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
QUD124 of 2009
LOGAN J
24 JULY 2009
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD124 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: DOUGLAS JAMES DOELLE
Appellant
AND: DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
24 JULY 2009
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The Appellant pay the Respondent’s costs of and incidental to the appeal, to be taxed if not agreed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD124 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: DOUGLAS JAMES DOELLE
Appellant
AND: DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
JUDGE:
LOGAN J
DATE:
24 JULY 2009
PLACE:
BRISBANE
REASONS FOR JUDGMENT
Mr Douglas James Doelle appears on his own behalf in respect of an appeal against a judgment delivered in the Federal Magistrates Court on 1 May 2009. The grounds of appeal which he advances are as follows:
1.The Federal Magistrate erred in failing to find that the Administrative Appeals Tribunal (AAT):
(a)incorrectly interpreted and/or applied the meaning of the expression “special circumstances” pursuant to s 1184K of the Social Security Act 1991 (Cth) (the Social Security Act) to the circumstances of the appellant’s case;
(b)erred in law in holding that the Appellant’s circumstances were not special circumstances because he still had $13,000 available from the settlement moneys, 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;
(c)should have made a finding whether it accepted all of the Appellant’s un-contradicted evidence in relation to the claim of “special circumstances” and;
(d)gave inadequate reasons for its decision that there were no “special circumstances” in this case.
2.The Federal Magistrate erred in finding in para 15 of his judgment that the appellant was seeking “impermissible merits review” and should have found that the appellant was seeking to review errors of law.
3.The Federal Magistrate should have found that the AAT had regard to irrelevant circumstances in exercising its discretion for the said claim of “special circumstances.”
4.The Federal Magistrate should have found that the AAT failed to identify and/or consider the relevant circumstances of the exercise of the said discretion in relation to the said claim of “special circumstances.”
5.The Federal Magistrate erred in failing to find that the AAT erred in law in finding that there was evidence of the solicitor for the nominal defendant that there was an economic loss component in the settlement sum that exceeded $35,000, when in fact the said solicitor was not a witness in the proceedings.
6.The Federal Magistrate erred in failing to find that the AAT should have found there was no evidence that the settlement sum of $55,000 included any component or economic loss.
The background to the present case is related by the AAT (which was constituted by Mr Karas AO) in the AAT’s reasons. That background can only elicit sympathy for the circumstance in which Mr Doelle presently finds himself. To observe that is not though in any way to acknowledge that it is any part of the Court’s role on an appeal from the Federal Magistrates Court in a case of this kind to make an evaluative judgment on the factual merits of a controversy which fell for the AAT to resolve. The background then to the present case derived from the summary provided by the AAT is as follows.
Mr Doelle had the misfortune to sustain injuries in a motor vehicle accident on 15 November 2001. Aside from the injuries he sustained in the motor vehicle accident, the evidence before the AAT and the subordinate administrative agencies of the Commonwealth establishes that Mr Doelle had (and I infer continues to have) a heart condition which necessarily impacts upon his ability to undertake remunerative employment. Following the car accident he instituted proceedings in the District Court of Queensland for damages against a named defendant and also the Nominal Defendant. Those proceedings culminated in an agreed resolution, the terms of which are recorded in a document entitled “terms of settlement” dated 29 January 2008.
Paragraph 1 of those terms of settlement proved to be the focus of a particular submission made by Mr Doelle in the appeal. It is in these terms:
That the second defendant (the nominal defendant) –
will pay to the plaintiff the sum of $55,000 (“the settlement sum”) in full settlement of the plaintiff’s claim for damages and interest and also including the plaintiff’s standard costs and outlays of and incidental to the action.
That settlement was reached following a mediation which was conducted on 29 January 2008. The following month, on 4 February 2008, an officer at “Centrelink” found that Mr Doelle was subject to a preclusion period in terms of the Social Security Act and that he had to refund to Centrelink, on behalf of the Commonwealth, $7069.28 of disability support pension which had been paid during that preclusion period. That refund was said to be payable from compensation moneys that he had received in respect of the injury which he had sustained in his car accident in November 2001.
Thereafter Mr Doelle sought to successively review that original administrative decision as provided for under the Social Security Act. An authorised review officer affirmed the decision. So too did the Social Security Appeals Tribunal (the SSAT) and so too, in due course, did the AAT.
The AAT’s reasons were given in writing on 6 August 2008, the day on which it decided to affirm the decision under review. The AAT identified, unremarkably in my respectful opinion, the following issues for determination:
1.whether a preclusion period should be applied in relation to compensation moneys received by Mr Doelle for the injuries he sustained on 15 November 2001 and, if so;
2.whether a refund of $7069.28 of disability support pension paid during the time of the preclusion period should be recovered by the respondent, ie, by the Centrelink agency or, more particularly, by the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs.
The terms of settlement which were in evidence before the AAT are neutral as to whether or not the settlement moneys included a component in respect of economic loss. On the face of them, it is quite understandable how a layman in Mr Doelle’s position would be left in some doubt as to whether or not the settlement sum did, indeed, include a component for economic loss. As Mr Cosgrove - who appeared for the respondent Commonwealth Department - observed in the course of submissions, that particular phenomenon is by no means uncommon. That though was the voice of a practitioner well versed in the conduct of common law litigation. It is important to realise that lay people such as Mr Doelle do not bring to the scrutiny of such documents the same background in terms of legal practice and procedure. I should note in passing that the AAT was constituted by a legal practitioner.
The AAT at some length recited the evidence that was placed before it on the subject of whether or not the settlement moneys included a component in respect of economic loss. It is important to appreciate - and the reasons for judgment of the learned Federal Magistrate certainly evidence this - that the resolution of matters of factual controversy was a task consigned under our law in this type of case to the AAT, not to the judicial branch. It is also important to appreciate that, in approaching its task of resolving matters of factual controversy, the AAT was not bound by the formal rules of evidence and was entitled to act on material which might not be regarded as compliant with those rules in a court. The AAT’s reasons reveal that it scrutinised carefully not only the evidence that Mr Doelle gave but also that which had been advanced in the proceedings before the subordinate administrative tribunal, the SSAT.
One must, in my opinion, read the AAT’s reasons in conjunction with the summary of evidence given by the SSAT. That so much was intended by the AAT is apparent from para 11 of the AAT’s reasons. There one finds express reference by the AAT to evidence summarised in para 8 of the SSAT’s decision concerning economic loss. Further, in the AAT’s reference in para 11 to “other material on the file” one also is directed to look to material that was already in existence at the time when the AAT came to conduct its hearing. That material necessarily included the body of evidence which had been presented to the SSAT.
When one looks to para 8 of the reasons of the SSAT, as the AAT plainly intended, one sees there a summary of information provided to that tribunal and which was before the AAT. Paragraph 8 of the SSAT’s reasons is as follows:
8.Mr Doelle and his solicitor, Mr McGhie, spoke to the Tribunal and the following is a summary of the information provided:
·There is an argument between Mr Doelle and the lawyers for the defendant as to whether any economic loss was included in the settlement. Mr McGhie was present at the mediation as well as Mr Doelle. It was never specified that economic loss was included in the agreement;
·The assertions made by the solicitor for the defendant, Mr Sullivan, to Centrelink do not accord with what Mr McGhie recalls of the mediation. Recovery of damages for economic loss is not recorded in the terms of settlement;
·There was a point raised by the defendant during negotiations that if an offer of $35,000 was rejected, the defendant would not be prepared past that amount of damages to give Mr Doelle a letter that no economic loss was included in the settlement;
·It was acknowledged by Mr McGhie in response to a question from the Tribunal that this point was about the effect that the Centrelink preclusion period would have on the ultimate settlement sum and that as the negotiations went past $35,000, the defendant withdrew its offer to give express notification that no economic loss was included in the settlement;
·In the statement of loss and damage prepared by Mr McGhie for Mr Doelle’s claim, claims for various head of damage were quantified such as $30,000 for pain and suffering, $4,398.15 for past special damages, $4,000 for future medical expenses, $700 for future pharmaceuticals, $3,000 for future travel costs and $20,000 for Griffiths v Kierkenmeyer damages. These amounts for the heads of damages specified are more than the amount of damages ultimately accepted to settle the claim;
·The claim made for economic loss was quantified in the statement of loss and damage as $35,600 for past lost wages, $3,204 for lost superannuation, $50,000 for future economic loss and $4,500 for future lost superannuation. These claims were based on a loss of $200 per week;
·Mr McGhie acknowledged that the economic loss claim as weak as Mr Doelle had hardly worked for years;
·At the start of the mediation the defendant stated that it did not believe that there had been any economic loss resulting from the accident and pointed out that Mr Doelle had sustained a number of injuries before the accident and had other incapacitating medical conditions. The defence formally pleaded that Mr Doelle had a right knee injury, lower back condition, left knee injury and a heart condition. It was pleaded that Mr Doelle was unemployed and in receipt of a disability support pension at the time of his accident. Based on that pleading, Mr McGhie submitted that there could not have been, and there was not, any economic loss in the settlement sum;
·The version given by Mr Sullivan to Centrelink is false as Mr Sullivan had stated at the mediation that the defendant’s position was that there was no economic loss as Mr Doelle was in respect of a disability support pension and had a heart condition. After the opening session, the mediation broke into two groups and the mediator went from group to group with offers. Mr Sullivan did not speak with Mr Doelle or Mr McGhie after the opening session broke up;
·Mr Doelle denied that he had been advised at mediation that economic loss was a component of the settlement as asserted by Mr Sullivan in a telephone call with Centrelink on 7 February 2008. He did not speak with Mr Sullivan when the negotiations were being conducted as only the mediator, Mr Munro, communicated with Mr Doelle and Mr McGhie during the negotiations;
·In response to a question from the Tribunal, Mr McGhie stated that the claim for economic loss was not abandoned during the mediation. When the claim was eventually settled at $55,000, he did not ask for a letter acknowledging that there was no economic loss included in the settlement for Centrelink purposes as the defendant had withdrawn the offer to provide such a letter earlier in the mediation;
·Mr Doelle provided the Tribunal with a copy of a letter written by the mediator, Mr Munro, to Mr Sullivan dated 17 March 2008. The letter sets out the mediator’s recollection of the mediation. Mr McGhie told the Tribunal that he agreed with the version of Mr Munro except he does not agree with the statement that there had been an offer to include as a term of settlement that no economic loss was included in the settlement sum. Mr McGhie told the Tribunal that the offer that had been made by the defendant was to give a letter that no economic loss was included in the settlement sum if the claim settled for $35,000;
·Mr Doelle showed the Tribunal copies that he had obtained of a file note from Mr Sullivan’s file that indicated that Mr Sullivan had estimated $0 for past and future economic loss. Mr Doelle was not at liberty to provide copies of these documents to the Tribunal;
·Mr McGhie submitted that there are special circumstances that would warrant waiver of the refund. Mr Doelle is quite disabled from his medical conditions and injuries. Additionally he is the carer for his wife who has bipolar disease and for his daughter who has an intellectual impairment. Due to her disorder, his wife buys things that they cannot afford. This has placed a strain on their relationship. He does not have many assets. He rents the house in which he lives with his wife and daughter. He owes $17,000 on credit cards which he pays off with minimum payments. He is not under pressure to make greater than minimum payments. His wife and daughter are not employed.
What the AAT observed in its reasons (para 11) in respect of the evidence concerning the composition of the settlement moneys was as follows:
It appears from the evidence in this matter that the applicant agreed with parts of paragraph 8 of the SSAT’s decision regarding economic loss being claimed as a component of his settlement by his solicitor at and during the negotiations that led to the settlement of his injuries claim for $55,000. Other material on the file indicates that had the settlement sum exceeded $35,000 then an economic component would have been included as reflected in the correspondence by the parties around the time of the settlement payment.
The AAT then continued in para 12:
Although the Applicant, ie, Mr Doelle, asserts that settlement of his injuries claim was reached on the basis that no component was included for economic loss, the Tribunal is unable on the evidence and material before it to accept this. Perhaps he misunderstood or was confused regarding the economic aspect of the settlement. The Tribunal prefers the evidence of the solicitor for the Nominal Defendant that the there was an economic loss component in the settlement sum that exceeded $35,000.
Then, a little later, the AAT notes the Centrelink officer’s record of a conversation with the Applicant’s solicitor in February 2008, where it is stated:
He also advised that it may have been possible that the nominal defendant did include some economic loss in the settlement.
The AAT then found (para 13) on the basis of the evidence and material before it as follows:
·The applicant made a claim for damages for injuries he sustained in a car accident on 15 November 2001.
·The applicant settled the whole of his claim for $55,000, inclusive of statutory refunds and costs.
·The settlement sum included a component for economic loss.
Before turning to any question of special circumstances, it is instructive to examine how the learned Federal Magistrate dealt with the challenge to the finding that the AAT had made as to the composition of the settlement moneys. The learned Federal Magistrate dealt with this aspect of the challenge to the AAT’s decision in para 17 and following of his reasons which were directed to grounds (v) and (vi) of the notice of appeal. His Honour observed, correctly, that the AAT was not bound by the rules of evidence, making reference in that regard to s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (the Administrative Appeals Tribunal Act). His Honour further observed, again, with respect, correctly, that the AAT ought to be guided by matters of probity, weight and relevance in determining that which it will receive by way of evidentiary materials in any application before it. His Honour concluded that the AAT was:
…well positioned to reach the conclusion it did without needing to hear from the solicitor who appeared for the nominal defendant at the mediation.
His Honour’s reasons are cast against the background of a criticism which had been advanced before him that the solicitors for the Nominal Defendant and, for that matter, the mediator had not appeared personally, it seems, to give evidence before the SSAT. His Honour observed in respect of that phenomenon that “that fact itself does not appear to be decisive” (para 20 of reasons for judgment). His Honour further concluded that his evidence would not materially add to the matters of which the Appellant and Mr McGhie - Mr McGhie being the Appellant’s solicitor - had earlier informed the SSAT.
There can be no denying the correctness of his Honour’s observation when one has regard to the informality of proof that is permissible in an administrative review forum such as either the SSAT or the AAT.
When one looks back through the record of telephonic attendances between officers of the Commonwealth within Centrelink and the solicitor within the Nominal Defendant’s solicitors, DLA Phillips Fox, Mr Sullivan, one finds there reference to an account given by Mr Sullivan of the settlement moneys including a component in respect of economic loss. It was unnecessary for either the mediator or, for that matter, the solicitors for the Nominal Defendant to appear in person either before the SSAT or, more materially for present purposes, the AAT. There was, for the purposes of administrative fact finding, evidentiary material from them upon which the AAT was entitled to act in making the findings that it did.
So much was, in my respectful opinion, appreciated by the learned Federal Magistrate. It is important to recall that the jurisdiction that the Federal Magistrates Court was exercising arose under s 44 of the Administrative Appeals Tribunal Act upon the remission of the appeal from the AAT by this Court to the Federal Magistrates Court. That jurisdiction is to entertain an appeal on a question of law. It is most certainly not a jurisdiction which entails the conduct of merits review of findings of fact made by the AAT.
In this regard, it is helpful to recall observations made, now long ago, by Brennan J, as his Honour then was, in Waterford v Commonwealth of Australia (1987) 163 CLR 54 at 77, which statement was referred to with approval in this Court in Commonwealth Banking Corporation v Percival (1988) 20 FCR 176:
The error of law which an appellant must rely on to succeed must arise in the facts as the AAT has found them to be, or it must vitiate the findings made, or it must have led the AAT to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. Therefore, an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact.
Later, in Federal Commissioner of Taxation v Elton (1990) ATC 4078, Davies J observed that although he might have come to a different view on the facts had he been called upon to make the decision, no error of law was demonstrated. His Honour there, as others have frequently done since in respect of appeals under s 44, was demonstrating a principle of restraint in terms of the jurisdiction that is consigned to the court in appeals from the AAT. It seems to me that the learned Federal Magistrate did just that in disposing with this aspect of the challenge which Mr Doelle made to the AAT’s decision. Thus, those grounds of appeal which seek to challenge the way in which the Federal Magistrates Court dealt with the findings of fact made by the AAT must fail.
It is convenient, having regard to the reference to Waterford’s case, to make brief reference to an endeavour which Mr Doelle made to supplement the record of the proceedings by proffering a document which I marked for identification as exhibit A. Mr Doelle did not give sworn evidence that this document comprised part of the record before the AAT, and, in a statement which he made from the bar table, was unable to confirm one way or the other whether it was, indeed, part of the material before the AAT. The Commonwealth’s position was that it did not comprise part of the material before the AAT. It certainly did not form part of the material which was transmitted to the Court by the AAT, as required, in respect of an appeal under s 44.
Having regard to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, and subsequent decisions of Full Courts of this Court, there can be no doubt that an appeal to this Court from the Federal Magistrates Court is an appeal by way of rehearing, not an appeal stricto sensu. That said, the nature of the appellate jurisdiction is necessarily influenced by the nature of the proceeding which is the subject of appeal. In this instance, that proceeding was an appeal on a question of law. It seems to me to follow, having regard to the observation made by Brennan J in Waterford’s case, that it would be impermissible, on an appeal from the Federal Magistrates Court which had entertained an appeal under s 44 of the Administrative Appeals Tribunal Act, to receive, by way of an endeavour to supplement the record, material which could only go to a challenge to the factual conclusion reached by the AAT. For those reasons, I have not had regard to exhibit A in the disposition of the appeal.
I turn, then, to the question which necessarily confronted the learned Federal Magistrate, in light of the conclusion which he had reached concerning the ability, reasonably, of the AAT to make the finding of fact that it did in relation to the composition of the settlement moneys. His Honour correctly apprehended that s 1184K of the Social Security Act makes provision for the exercise of discretion in relation to the imposition of the lump sum preclusion period refund obligations, where “special circumstances” exist. It seems to me, also, that his Honour correctly apprehended the case law, such as it is, as to the meaning of that term “special circumstances.”
One finds in para 8 and para 10 of the learned Federal Magistrate’s reasons reference to pertinent authorities. His Honour recites, at para 9 of his reasons for judgment, that no issue was taken with the AAT’s identification of the appropriate test. Before me, Mr Doelle was concerned that the learned Federal Magistrate had not dealt with the special circumstances test correctly, in that, so he submitted, the court below had failed to appreciate that the ramification of the special circumstances test was that each case is different. In other words, the nature of the challenge seemed to be that the court below and, for that matter, the AAT, had failed to appreciate that it was at the very essence of the special circumstances test that it required the consideration of its application in the circumstances of a particular case.
Given the nature of that challenge, it is helpful to reflect upon observations which have been made in earlier judgments as to the nature of a special circumstances test. In Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 at 535, French J, as his Honour then was, observed:
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 is not likely to be enlivened… If helpful to speak in terms of its meaning almost all of it comes from context.
I note that the learned Federal Magistrate made particular reference, at para 10 of his reasons for judgment, to Boscolo’s case.
In Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545, Kiefel J observed that:
The words require something which distinguishes [a person’s] case from others, to take it out of the usual or ordinary case.
A similar view of the meaning of a term such as “special circumstances” is to be found in the judgment of the Full Court in Minister for Community Services and Health v Chi Keong Thoo (1988) 78 ALR 307 at 324.
A cautionary note was sounded by Hill J in Secretary Department of Social Security v Hodgson (1992) 37 FCR 32 at 42 in his Honour’s observation that the term carried with it:
…no requirement that the case be extremely unusual, uncommon or exceptional. [emphasis added]
In Jess v Scott (1986) 12 FCR 187 at 195, albeit in a different context but, nonetheless, by reference to the term “special circumstances,” a Full Court observed of that term that:
[It is] an elastic test, suitable for application across a range of situations … It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify departure in the particular circumstances from the ordinary rule.
Earlier in time, a Full Court had observed in Beadle v Director-General of Social Security (1985) 60 ALR 225 at 228 that:
We do not think it is possible to lay down precise limits or precise rules … The phrase, although lacking precision, is sufficiently understood not to require judicial gloss.
I refrain, in this case, from adding any judicial gloss in respect of the term “special circumstances”. It seems to me that that which has earlier fallen from courts as to what those words carry with them is more than sufficient.
When one reads the reasons of the learned Federal Magistrate insofar as they address the subject of the special circumstances aspect of the controversy which fell to the AAT to resolve one is left, in my opinion, with two impressions. Firstly, that the learned Federal Magistrate correctly apprehended the nature of the special circumstances test which fell for the AAT to apply, and secondly, that the learned Federal Magistrate did appreciate that that test fell for application in the circumstances of Mr Doelle’s particular case.
In particular, at para 13 of the reasons for judgment of the Federal Magistrates Court, one finds the following:
13.The facts were considered against the established test with the tribunal concluding, at para 20:
“… there is no or insufficient probative evidence that the applicant’s circumstance are somehow unusual or exceptional such that there are “special circumstances” enough to warrant the debt being waived.”
One then finds the following observation made by the learned Federal Magistrate:
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.
His Honour then correctly appreciated, in respect of this test, that the ambit of the court’s powers on appeal was limited to review of errors of law only. The power might, perhaps, with respect, have been felicitously described as the determination of a question of law. Nonetheless, the essential point remains that the learned Federal Magistrate correctly appreciated that the AAT had, indeed, dealt with Mr Doelle’s individual circumstances in the application of the special circumstances test and further that it was not for the court, on an appeal under s 44, to revisit the factual wisdom of the conclusions which the AAT had reached in the application of that test.
It follows from this that those grounds of appeal would seek to call into question, in one way or another, the way in which the learned Federal Magistrate dealt with the “special circumstances” aspects of the challenge to the AAT’s decision must also fail.
For these reasons then, in my opinion, the appeal must be dismissed.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 30 July 2009
Counsel for the Appellant: The Appellant appeared in person Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 24 July 2009 Date of Judgment: 24 July 2009
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