Heslop v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2010] FCA 1345
FEDERAL COURT OF AUSTRALIA
Heslop v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2010] FCA 1345
Citation: Heslop v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2010] FCA 1345 Parties: DIANNE MARGARET HESLOP v SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS File number: QUD 320 of 2010 Judge: LOGAN J Date of judgment: 10 November 2010 Catchwords: SOCIAL SECURITY – Application for Judicial Review of a decision of a delegate of the Secretary under s 1207X of the Social Security Act 1991 (Cth) – Where Secretary failed to take into account relevant consideration – Where Applicant would have sought merits review – Where Secretary conceded the matter should be remitted for further consideration – Where question raised had wider systemic importance in the administration of that Act – Whether an order for costs should be made
Held: An order for costs is appropriate
Legislation: Administrative Decision (Judicial Review) Act 1977
Judiciary Act 1903 (Cth)
Social Security Act 1991 (Cth) s 1207XCases cited: Cocks v Secretary of the Department of Social Security, Department of Family and Community Services (2002) 72 ALD 306; [2002] AATA 1179 questioned
McGowan v Migration Agents Registration Authority (2003) 129 FCR 118 cited
Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523 citedDate of hearing: 10 November 2010 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 14 Counsel for the Applicant: Mr R Traves SC with Mr M Hickey Solicitor for the Applicant: Tucker & Cowen Solicitor for the Respondent: Sparke Helmore
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 320 of 2010
BETWEEN: DIANNE MARGARET HESLOP
ApplicantAND: SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS
Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
10 NOVEMBER 2010
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The decision of the Respondent’s delegate dated 9 July 2010 be set aside.
2.The matter is remitted to the Respondent for further consideration according to law and under the Social Security Act 1991 (Cth) by such officer as the Respondent may determine.
3.The Respondent pay the Applicant’s costs of and incidental to the application (including the Respondent’s Notice of Motion) 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 Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 320 of 2010
BETWEEN: DIANNE MARGARET HESLOP
ApplicantAND: SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS
Respondent
JUDGE:
LOGAN J
DATE:
10 NOVEMBER 2010
PLACE:
BRISBANE
REASONS FOR JUDGMENT
Ms Dianne Margaret Heslop (Ms Heslop) has sought the judicial review of a decision of a delegate of the Respondent Secretary to the Department of Families, Housing, Community Services and Indigenous Affairs (Secretary) who is, for the purposes of the Social Security Act 1991 (Cth) (Social Security Act), an authorised review officer. The decision, which is dated 9 July 2010, is to attribute to Ms Heslop the income and assets of her late mother, Mrs Rosila Heslop (Mrs Heslop). The decision of that delegate, consequentially, was further that Ms Heslop’s disability support pension was correctly cancelled because her assets were above the allowable limit.
It became apparent in the course of hearing the application that, in making a determination under s 1207X of the Social Security Act in respect of the asset distribution percentage, the secretary’s delegate had failed to take into account a relevant consideration flowing from the application to the making of that determination of relevant decision making principles. Section 1207X(5) of the Social Security Act obliges the secretary and thus his delegates to comply with any relevant decision making principles. Such principles are materially to be found in the Social Security (Attributable Stakeholders and Attribution Percentages) Principles 2000 (Cth).
Within those principles one finds at para 16 an obligation on the part of the secretary to consider whether there are relevant circumstances that make it inappropriate for the individual to have an asset attribution percentage of 100 per cent. The latter, in effect, is a “default position” for which s 1207X(2)(d) provides in the absence of a determination of a lower percentage by the secretary.
One of the relevant circumstances in making any determination is, by para 16(2)(a) of the principles, circumstances arising from the legal structure of, materially, the trust. Another, by reference to para 16(2)(c) of the principles, is whether having regard to the relationship between the individual and the trust the individual can reasonably be expected to exercise effective control in relation to the trust and, if so, the extent of that control. Administrative arrangements in respect of the trust are also expressed to be relevant. See paragraph 16(2)(b) of the principles.
The trust concerned in this case is a will trust arising under the terms of the late Mrs Heslop’s will for which probate was granted in the Supreme Court of Queensland on 7 October 1997. Under the terms of that will, Mrs Heslop’s son, Mr Bartley Heslop, and one of her daughters, Mrs Suzette Hume, are appointed executors and trustees (cl 3(c)) in respect of the rest and residue of the estate. The trustees are bound to pay the income of the rest and residue to the applicant for life and, upon her death, to Mr Bartley Heslop and Mrs Hume or their survivors. The trustees are also given, by cl 8 of the will, particular powers. One of those is to apply any of the capital of the estate as they in their absolute discretion think fit for the benefit of Ms Heslop.
As a matter of trust law, therefore, the applicant has no entitlement to the capital represented by the rest and residue. She has instead at most an ability, depending upon the exercise of an absolute discretion, to receive any of that rest and residue. It is in the understanding of the effect of that will trust that an error of law is conceded, arising from the need, flowing from para 16 of the principles, correctly to understand the legal structure of the trust.
Another related error concerns who has, in terms both of practice and trust law, effective control. Part and parcel of understanding effective control is first properly to understand who in trust law on the face of a trust has control.
It is accepted by the parties that, in light of the error which I have mentioned, the decision of the secretary’s delegate dated 9 July 2010 must be set aside. The concession involves necessarily also an acknowledgement on the part of the secretary that this is a case where appropriately relief ought be granted on a judicial review application having regard to the conceded error of law.
It is necessary to put matters that way because whilst the decision being one of an administrative character made under an enactment by a Commonwealth officer, there is an ability to invoke the jurisdiction of this court on judicial review under either or each of the Administrative Decisions Judicial Review Act 1977 (Cth) or under s 39B of the Judiciary Act 1903 (Cth), there is no absolute right to relief. An exercise of discretion is involved.
Under the Social Security Act, very particular provision is made for successive, external merits review by the Social Security Appeals Tribunal and, in turn, if so desired by the Administrative Appeals Tribunal. The existence of such rights of external merits review is a very powerful factor, indeed in terms of whether, in the ordinary course, a judicial review application should be entertained, even if strictly it falls within jurisdiction. Principles concerning the exercise of a discretion to grant relief where there is other provision for review are to be found in Swan Portland Cement Ltd v Comptroller General of Customs (1989) 25 FCR 523 and McGowan v Migration Agents Registration Authority (2003) 129 FCR 118.
It was in the existence of that alternative of external merits review that a submission was made on the part of the Secretary that, in this case and notwithstanding a conceded error of law and concession that there ought to be a remitter, there, nonetheless, ought to be no order as to costs. It is true that, had the path which one might apprehend to be far and away the more usual path been adopted, and had the error of law concerned been highlighted, no costs would have attended the decision by either the Social Security Appeals Tribunal or the Administrative Appeals Tribunal, whatever that decision might ultimately have proved to be on the merits. That is a consideration which I take into account in deciding whether or not to award costs.
It is, in the face of the existence of external merits review rights, very important indeed that there be no undue encouragement of the parties to seek judicial review. Both the Social Security Appeals Tribunal and the Administration Appeals Tribunal are well equipped by their membership to deal with both any question of construction of the legislation and related legal issues, as well as, in turn, then, applying the legislation as properly construed to the circumstances of a particular case. The making of a determination for the purposes of s 1207X of the Social Security Act is, in the ordinary course, a paradigm example of a discretionary value judgment at departmental level which, in the event of controversy, should fall for review on the merits by the Social Security Appeals Tribunal and perhaps, in turn, by the Administrative Appeals Tribunal.
What distinguishes this case from the ordinary, though, is that it does appear from the reasons of the authorised review officer that the decision has been influenced by an earlier case, Cocks v Secretary of the Department of Social Security, Department of Family and Community Services (2002) 72 ALD 306 and more fully, as [2002] AATA 1179. It may be that Cocks is truly nothing more than a facts case, but it does seem to have an influence in terms of construction of the legislation and, perhaps also, a utility, which is a misconceived utility, in being applied uncritically to a variety of trusts to the detriment of consideration of the terms of particular trusts, be they will trusts or trusts inter-vivos.
In other words, the application brought by Ms Heslop in this case has had the wider systemic value of highlighting a need on the part of the Secretary and his delegates in applying the principles to which I have referred to look to and understand correctly the legal effect of the very trust which is under consideration. It is, therefore, in my opinion, a case which has a particular exceptional quality. That fact persuades me that, notwithstanding alternatives which may have yielded not just a similar outcome, but also an outcome on the merits, and that without costs, there ought in this case to be an order for costs. That, of course, accords with a more general position, which is that, whilst the discretion as to costs is open‑ended, ordinarily a successful party is entitled in the judicial exercise of that discretion to an order which recognises that costs follow the event.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 2 December 2010
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