HGMZ v Secretary, Department of Social Services
[2021] FCA 280
•29 March 2021
FEDERAL COURT OF AUSTRALIA
HGMZ v Secretary, Department of Social Services [2021] FCA 280
Appeal from: Application for an extension of time: Re HGMZ and Secretary, Department of Social Services [2020] AATA 978 File number: NSD 612 of 2020 Judgment of: FLICK J Date of judgment: 29 March 2021 Catchwords: PRACTICE AND PROCEDURE – making of a suppression order – onus – necessary to prevent prejudice – onus not discharged
ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal – need to identify question of law with precision – failure to do so – issues nevertheless identifiable – form not substance – appeal dismissed
PRACTICE AND PROCEDURE – precedent – submission that earlier decision should not be followed – earlier decision not clearly wrong
Legislation: Administrative Appeals Tribunal Act1975 (Cth) s 44
Administrative Decisions (Judicial Review) Act1977 (Cth) s 5
Federal Court of Australia Act 1976 (Cth) ss 37AE, 37AF, 37AG
Health and Other Services (Compensation) Act1995 (Cth) s 33A
Income Tax Assessment Act1936 (Cth) s 196
Social Security Act 1991 (Cth) ss 17, 1169, 1170, 1184K
Social Security Amendment Act 1988 (Cth)
Federal Court Rules2011 (Cth) r 33.12
Cases cited: ASE16 v Australian Securities and Investments Commission [2016] FCA 321
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741
Computer Interchange Pty Ltd v Microsoft Corporation [1999] FCA 198, (1999) 88 FCR 438
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
ELA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 230
Federal Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd [2010] FCAFC 94, (2010) 186 FCR 410
Giddings v Australian Information Commissioner [2017] FCAFC 225
Haritos v Federal Commissioner of Taxation [2015] FCAFC 92, (2015) 233 FCR 315
Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757
Hogan v Australian Crime Commission [2010] HCA 21, (2010) 240 CLR 651
Indooroopilly Children Services (Qld) Pty Ltd v Commissioner of Taxation [2006] FCA 734, (2006) 63 ATR 106
Liverpool City Council v McGraw-Hill Financial, Inc [2018] FCA 1289
Marr v Australian Telecommunications Corporation (1991) 105 ALR 647
Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332
Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259
Phillips v Inspector-General in Bankruptcy [2013] FCA 552
Roncevich v Repatriation Commission [2005] HCA 40, (2005) 222 CLR 115
Secretary, Department of Family and Community Services v Chamberlain [2002] FCA 67, (2002) 116 FCR 348
TNT Skypack International (Aus) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, (2003) 236 FCR 593
WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319
Weeks v Commissioner of Taxation [2012] FCA 342, (2012) 88 ATR 183
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 73 Date of last submissions: 30 December 2020 Date of hearing: 23 December 2020 Solicitor for the Applicant: Elias Attia of Attia Lawyers and Consultants Solicitor for the Respondent: Stephen Thompson of Sparke Helmore ORDERS
NSD 612 of 2020 BETWEEN: HGMZ
Applicant
AND: SECRETARY, DEPARTMENT OF SOCIAL SERVICES
Respondent
ORDER MADE BY:
FLICK J
DATE OF ORDER:
29 MARCH 2021
THE COURT ORDERS THAT:
1.The application made pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) is refused.
2.Time is extended in which to commence the proceeding to 1 June 2020.
3.Leave is granted to file and rely upon the Further Amended Notice of Appeal dated 17 December 2020, other than Ground 6.
4.The proceeding is dismissed.
5.The Applicant is to pay the costs of the Respondent, either as taxed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
FLICK J:
On 27 April 2020, the Administrative Appeals Tribunal (the “Tribunal”) published its reasons for decision in Re HGMZ and Secretary, Department of Social Services [2020] AATA 978.
In very summary form, the Applicant in that proceeding, identified by the pseudonym HGMZ, had been in receipt of a disability support pension since January 2008. In May 2013, however, she was involved in a motor vehicle accident and made a claim for compensation for injuries suffered in the District Court of New South Wales. The vehicle she had been driving was involved in a collision with a bus. The District Court proceeding was ultimately settled in August 2017 upon payment of $135,000.
Difficulties for the Applicant emerged when the Department of Human Services (the “Department”) formed the view that part of the settlement monies for the motor vehicle accident included a component for economic loss and sought recovery of $31,142.86. The Respondent took the view that the settlement of the motor vehicle accident claim involved compensation for economic loss. It informed HGMZ that a “preclusion period” was to be applied to her disability support pension. On the same day the Respondent informed HGMZ of its decision, the Respondent wrote to the insurer requesting recovery of $31,142.86 from the compensation payment. A calculation had been undertaken as to when the “preclusion period” was to start and finish, with that period commencing on the day of her accident in May 2013 and finishing in September 2014. The $31,142.86 was the amount of the social security payment paid to her during that period. On internal review of its decision to seek recovery, the Respondent advised HGMZ by letter on 7 November 2017 that it rejected her contention that the discretion conferred by s 1184K of the Social Security Act 1991 (Cth) to waive payment of that amount should also be exercised in her favour.
HGMZ sought review of the Respondent’s decision by the Social Services and Child Support Division of Administrative Appeals Tribunal. That Division of the Tribunal affirmed the Respondent’s decision. A second level review by the General Division of the Tribunal again affirmed the decision and it published reasons on 27 April 2020.
On 1 June 2020, HGMZ (the “Applicant”) caused to be filed in this Court an Application for an extension of time in which to appeal the Tribunal decision.
The matter came on for hearing on 23 December 2020. The Application for an extension of time was not opposed and, accordingly, by consent time was extended. An application made to rely upon a Further Amended Notice of Appeal dated 17 December 2020 and provided to the Department the next day, however, was opposed by the Department on the basis of the lack of adequate notice to permit sufficient opportunity to address the issues sought to be raised. That prejudice was addressed by permitting the Respondent an opportunity to file further submissions by 31 December 2020. In the absence of prejudice to the Respondent, leave to amend should be granted.
At the outset of the hearing on 23 December 2020, the solicitor also sought an order:
·varying the pseudonym previously ascribed to the Applicant; and
·suppressing identified information contained in the Tribunal’s reasons for decision.
The solicitor for the Applicant also helpfully identified the three central issues sought to be resolved on appeal as issues going to the manner in which the Tribunal resolved:
·the question as to whether economic loss had been included in the settlement of the District Court proceedings; and
·whether the Applicant had made out “special circumstances” and the matters to be taken into account when making a finding in respect to the preclusion period and, in particular, whether the Tribunal had impermissibly relied upon s 33A of the Health and Other Services (Compensation) Act1995 (Cth) (the “Health and Other Services (Compensation) Act”) when making a finding that HGMZ had knowledge of the terms of the Consent Judgment in the District Court proceedings.
A further issue sought to be resolved was characterised by the solicitor for the Applicant as “novel”, being a “new argument” as to whether:
·the Court should now embrace “an expanded doctrine of legal unreasonableness that employs structured proportionality as a guiding principle” to review the Tribunal’s reasoning.
The manner in which these issues were sought to be raised, however, failed to identify any “question(s) of law” as required by s 44(1) of the Administrative Appeals Tribunal Act1975 (Cth) (the “Administrative Appeals Tribunal Act”).
It has been concluded that:
·the application made pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (the “Federal Court Act”) should be rejected;
and that:
·the Court has jurisdiction to resolve the three issues identified during the course of oral submissions, notwithstanding the failure to identify with “precision” any “question(s) of law”;
but that:
·each of the three central issues sought to be resolved by the Applicant should be rejected and the agitation of each of those issues seeks to impermissibly challenge findings of fact made by the Tribunal, and none raise a question of law.
It has been further concluded that:
·leave to raise the “novel” question should be refused, it being an argument that should have been raised before the Tribunal.
Each of these issues should be briefly, but separately, addressed.
THE SUPPRESSION OF MATERIAL & THE PSYEUDONYM
The information sought to be suppressed was identified as that set forth in paragraphs [32] and [34] of the Tribunal’s reasons for decision. Given that that information has remained available to be accessed since the date of the Tribunal’s decision in April 2020, the suppression of that information without further changing the pseudonym previously ascribed to the Applicant in the Tribunal may be perceived as achieving little protection.
Section 37AF forms part of Division 2 of Part VAA of the Federal Court Act, namely that Part directed to Suppression and non-publication orders. Within that Part, s 37AF read together with s 37AG(1) confers “a power for the Court to restrict or prohibit the disclosure of information where the order is necessary to prevent prejudice to the proper administration of justice”: Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [5] per Edelman J.
Section 37AF of the Federal Court Act provides (in part) as follows:
Power to make orders
(1)The Court may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:
(a)information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or
…
(2)The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).
Section 37AG provides (in part) as follows:
Grounds for making an order
(1)The Court may make a suppression order or non-publication order on one or more of the following grounds:
(a)the order is necessary to prevent prejudice to the proper administration of justice;
…
(c)the order is necessary to protect the safety of any person;
...
(2)A suppression order or non-publication order must specify the ground or grounds on which the order is made.
When exercising these powers, it is not to be overlooked that “the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice”: s 37AE of the Federal Court Act.
The onus on the party seeking to persuade the Court to make an order pursuant to s 37AF has been variously expressed – some decisions have expressed the onus as being “a very heavy one” (e.g., Computer Interchange Pty Ltd v Microsoft Corporation [1999] FCA 198 at [16], (1999) 88 FCR 438 at 442 per Madgwick J; Giddings v Australian Information Commissioner [2017] FCAFC 225 at [25] per Collier, Flick and Charlesworth JJ); other decisions have expressed the onus in terms of a “threshold” which is “high” (e.g., ASE16 v Australian Securities and Investments Commission [2016] FCA 321 at [80] per Markovic J). However expressed, “there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary” to do so: Liverpool City Council v McGraw-Hill Financial, Inc [2018] FCA 1289 at [110]. Justice Lee there went on to observe that “[m]ere belief that the order is necessary is insufficient”.
The provisions of s 37AG(1) which assume primary importance for the present proceeding, namely s 37AG(1)(a) and (c), are both expressed in terms of an order which is “necessary” to prevent either prejudice to the proper administration of justice, in the one case, or an order which is “necessary to protect the safety of any person”. Behind those judgments which address the onus to be discharged by an applicant seeking the making of an order lurks the term “necessary”, that term being said to be a “strong word”: Hogan v Australian Crime Commission [2010] HCA 21 at [30], (2010) 240 CLR 651 at 664. French CJ, Gummow, Hayne, Heydon and Kiefel JJ there made the following comments in relation to s 50 of the Federal Court Act, a predecessor provision to the current Part VAA (at 663 to 664):
The construction of s 50
[29] It has been assumed, no doubt correctly, that an order made under s 50 of the Federal Court Act may be made until further order and, in any event, may be vacated if the continuation of the order no longer appears to the court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth. As a general proposition, a court remains in control of its interlocutory orders and a further order will be appropriate, for example, where new facts and circumstances appear or are discovered, which render unjust the enforcement of the existing order.
[30] As it appears in s 50, “necessary” is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish [(1980) 43 FLR 129 at 133; 29 ALR 228 at 234] that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth “suggests Parliament was not dealing with trivialities”. Further, as indicated earlier in these reasons: (a) s 50 is an example of a provision authorising the Federal Court to make orders for the exercise of its jurisdiction other than in open court as mandated by s 17(1); and (b) “the administration of justice” spoken of in s 50 is that involved in the exercise by the Federal Court of the judicial power of the Commonwealth; this is a more specific discipline than broader notions of the public interest.
[31] It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics.
[32] If it appears to the Federal Court, on the one hand, to be necessary to make a particular order forbidding or restricting the publication of particular evidence or the name of a party or witness, in order to prevent either species of prejudice identified in s 50, or, on the other hand, that that necessity no longer supports the continuation of such an order, then the power of the Federal Court under s 50 is enlivened. The appearance of the requisite necessity (or supervening cessation of it) having been demonstrated, the court is to implement its conclusion by making or vacating the order. The expression in s 50 “may … make such order” is to be understood in this sense.
[33] It may tend to distract attention from the particular terms of s 50 to describe the Federal Court as embarking upon the exercise of a “discretion” when entertaining an application under s 50. Once the court has reached the requisite stage of satisfaction, it would be a misreading of s 50 to treat it as empowering the court nevertheless to refuse to make the order, or to leave in operation the now impugned order. It would, for example, be an odd construction of s 50 which supported the refusal of an order under s 50 notwithstanding that it appeared to the Court to be necessary to make an order to prevent prejudice to the security of the Commonwealth.
(footnotes omitted)
In the context of migration cases and persons seeking protection visas, the Full Court of this Court has recently again emphasised the requirements imposed by s 37AF(2) and s 37AG(1) – namely that any order be one which is “appropriate” and one which is “necessary” in ELA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 230 at [68] per Besanko and Perry JJ.
Although it may readily be accepted that the detailed information contained in paras [32] and [34] of the Tribunal’s reasons for decision, and in particular the identification of those offering the Applicant employment, is a legitimate cause for concern, it has ultimately been concluded that the making of an order under s 37AF is not “necessary” (in particular) to protect the safety of the Applicant because:
·although the information disclosed may have descended to a level of detail unnecessary to support the findings and ultimate conclusions of the Tribunal, little else is known as to those offering employment; and
·the information disclosed has, in fact, been available to be accessed since April 2020.
The application for the making of the suppression orders is, accordingly, rejected.
A QUESTION OF LAW?
The jurisdiction vested in this Court to resolve the present application is that conferred by s 44(1) of the Administrative Appeals Tribunal Act. That sub-section provides as follows:
A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.
Issues arose in the present proceeding as to the manner in which the “question(s) of law” were sought to be raised in the Further Amended Notice of Appeal.
A question of law
Although expressed as an “appeal”, the jurisdiction sought to be invoked by a party appealing from a decision of the Administrative Appeals Tribunal is an application made in the original – and not the appellate – jurisdiction of this Court: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 61-62 per Bowen CJ and Deane J, at 71 per Smithers J; TNT Skypack International (Aus) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 per Gummow J (“TNT Skypack”).
And such jurisdiction as is conferred by s 44 of the Administrative Appeals Tribunal Act is a jurisdiction confined to a “question of law”. What constitutes a “question of law” has been canvassed in many decisions of this Court but it is sufficient for present purposes to cite the following summary provided by Dowsett and Gordon JJ (Edmonds J agreeing) in Federal Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd [2010] FCAFC 94, (2010) 186 FCR 410 (“Trail Bros Steel”) at 415:
[13] … what is “on a question of law” for the purposes of s 44 of the AAT Act has been analysed in many cases and includes:
1. Whether the AAT has identified the relevant legal test: …;
2. Whether the AAT has applied the correct test: …;
3. Whether there is any evidence to support a finding of a particular fact: …; and
4.Whether facts found fall within a statute properly construed: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.
That list is by no means exhaustive: …
(some citations omitted)
Appl’d: Phillips v Inspector-General in Bankruptcy [2013] FCA 552 at [23] per Middleton J. The list of questions identified in Trail Bros Steel, of course, is not an exhaustive list.
But the identification of the “question of law” sought to be resolved is “not merely a qualifying condition to the ground the appeal, but also the subject matter of the appeal itself”: TNT Skypack (1988) 82 ALR at 178. Justice Gummow (when a Judge of this Court) there addressed both:
·the meaning to be ascribed to the phrase in s 44(1), namely “on a question of law”; and
·the constraints that such a phrase imposed upon the jurisdiction of this Court.
His Honour there contrasted the phrase “on a question of law” appearing in s 44(1) of the Administrative Appeals Tribunal Act with the former s 196 of the Income Tax Assessment Act1936 (Cth). In doing so his Honour observed:
The competency of the appeal
Whilst it is a trite observation, proceedings in the court brought pursuant to s 44 do not constitute an appeal from any decision which has been given in respect of a “matter” (in the sense of Ch III of the Constitution) by a court exercising the judicial power of the Commonwealth; the proceedings in this court are proceedings in the exercise of original jurisdiction: …
Section 44 of the AAT Act is expressed in narrower terms than the old s 196 of the Tax Act. This provided for appeals from the Board of Review which “involved” a question of law. The result was that if some question of law was involved, the whole of the decision of the Board was open to review, not merely the question of law: …
The history of the old s 196 is traced in Watson v FCT (1953) 87 CLR 353 at 373; see also, Zines, The High Court and the Constitution, 2nd ed, pp 166–77. As Starke J put it in FCT v Lewis Berger & Sons (Australia) Ltd (1927) 39 CLR 468 at 469, the Board exercised not the judicial power of the Commonwealth, but the administrative function of reviewing the Commissioner's assessments to ascertain the taxable income upon which tax should be levied. The Board's decision was not an adjudication and did not create an issue estoppel: … Before the court, the ascertainment of the taxpayer’s liability was submitted to judicial review. That is to say, if the condition as to jurisdiction were met, (that is there was a question of law involved) the whole of the “matter” or controversy between the taxpayer and the Commissioner came before the court. This no longer will be the case with appeals brought to this court under s 44 of the AAT Act. The existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself: FCT v Brixius (1987) 87 ATC 4963 at 4967.
(some citations omitted)
The focus of the appeal being confined to a “question of law” is only further emphasised by r 33.12(2) of the Federal Court Rules2011 (Cth) (the “Federal Court Rules”) which provides as follows:
The notice of appeal must state:
(a)the part of the decision the applicant appeals from or contends should be varied; and
(b)the precise question or questions of law to be raised on the appeal; and
(c)any findings of fact that the Court is asked to make; and
(d)the relief sought instead of the decision appealed from, or the variation of the decision that is sought; and
(e)briefly but specifically, the grounds relied on in support of the relief or variation sought.
The addition of the word “precise”, it has been said, is “obviously intended to reflect a point that has been emphasised in the authorities, that is, that the question of law is of critical importance in appeals under s44(1)…” and that the “question of law is the subject matter of the appeal itself…”: Weeks v Commissioner of Taxation [2012] FCA 342 at [15], (2012) 88 ATR 183 at 188 per Reeves J.
More recently, and in a joint judgment of Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ in Haritos v Federal Commissioner of Taxation [2015] FCAFC 92 at [62], (2015) 233 FCR 315 at 341-342 (“Haritos”), their Honours provided a summary of the principles to be applied as follows:
Summary of conclusions in relation to s 44 of the AAT Act
[62]We now turn to consider the more general questions raised by the appeal in relation to s 44 of the AAT Act. In summary, our conclusions are as follows:
(1)The subject-matter of the Court’s jurisdiction under s 44 of the AAT Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law.
(2)The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal.
(3)The Court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under s 44.
(4)Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the Court by s 44(3) to hear and determine appeals instituted in the Court in accordance with s 44(1), but to the exercise of that jurisdiction.
(5)In certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal.
(6)Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form.
(7)A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law.
(8)The expression “may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal” in s 44 should not be read as if the words “pure” or “only” qualified “question of law”. Not all so-called “mixed questions of fact and law” stand outside an appeal on a question of law.
(9)In certain circumstances, a new question of law may be raised on appeal to a Full Court. The exercise of the Court’s discretion will be affected not only by Coulton v Holcombe (1986) 162 CLR 1 considerations, but also by considerations specific to the limited nature of the appeal from the Tribunal on a question of law, for example the consideration referred to by Gummow J in Federal Commissioner of Taxation v Raptis (1989)20 ATR 1262 that there is difficulty in finding an “error of law” in the failure in the Tribunal to make a finding first urged in this Court.
Earlier decisions of the Court to the contrary, especially those contrary to the conclusions at (3), (4), (6) and (8) were overruled. Their Honours later observed that “the end sought to be achieved by the rule is to have the question of law stated with sufficient precision”: [2015] FCAFC 92 at [91], (2015) 233 FCR at 350.
The questions of law in the present proceeding
The form of the Further Amended Notice of Appeal sought to be relied upon failed to comply with r 33.12 of the Federal Court Rules; that document (inter alia) failing to identify – let alone identify with any “precision” – the question or questions of law sought to be raised on appeal.
But that deficiency does not strip this Court of jurisdiction: Haritos [2015] FCAFC 92 at [62(4)], (2015) 233 FCR at 341. Nothing said in Haritos, however, should be construed as conferring a licence upon applicants to disregard the Rules of the Court and fail to even attempt to formulate a question or questions of law for resolution. A failure to comply with r 33.12 may, in an appropriate case, warrant a notice of appeal being struck out.
The style of drafting pursued in the Further Amended Notice of Appeal was to shun any attempt to draft a question or questions of law and to pursue a style of formulating what would be more appropriately expressed as “grounds of review” as though judicial review was sought of the Tribunal decision pursuant to s 5 of the Administrative Decisions (Judicial Review) Act1977 (Cth).
The Further Amended Notice of Appeal thus set forth as follows what it inappropriately characterised as “Questions of law” (without alteration):
(1)The Member erred in failing to find that (1) the Appellant did not suffer economic loss or a lost capacity to earn and (2) an economic loss component did not exist in the settlement.
Alternatively;
(2)The Member, erred in failing to find that special circumstance exist in circumstances where:
...
(3)The Member impermissibly relied upon section 33A of the Health and Other Services (Compensation) Act 1995 (Cth) to suggest the Appellant knew about the preclusion period.
(4)The Member relied on irrelevant considerations or failed to consider relevant material by:
(a)finding the Appellant lived with her husband under the one roof when they were in fact divorced under Islamic law, and the appellant felt compelled to move there in 2015 because of her financial circumstances.
(b)failing to consider the updated medical information that flowed from the October 2017 motor vehicle accident
(c)speculating (at [62]) how the Appellant used her 2008 Motor Vehicle Accident settlement monies that were purely for non-economic loss
…
(6)Whether a new ground exists (independent of special circumstances) for this Court to review the Member’s decision using an expanded doctrine of legal unreasonableness that employs structured proportionality as a guiding principle. This ground will raise the recent authorities of Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437. …
(7)No lawful reasons are stated for the bare conclusion (at [70]) as to special circumstances and this amounts to an error of law.
Notwithstanding the failure to express these “grounds” in the form of “questions of law”, the issues sought to be resolved should be “approached as a matter of substance rather than form”: Haritos [2015] FCAFC 92 at [62(6)], (2015) 233 FCR at 341. Approached in that manner, the three issues as identified during the course of oral submissions advanced on behalf of the Applicant can readily be gleaned as giving rise to “questions of law” and no question arises as to the jurisdiction of this Court to resolve those questions.
THE DECISION OF THE TRIBUNAL & THE ISSUES TO BE RESOLVED
The claim made for the recovery of $31,142.86 made by the Department and the resolution of those claims by the Tribunal requires some brief exposition of:
·the statutory provisions of relevance in the Social Security Act 1991 (Cth) (the “Social Security Act”); and
·the manner in which the Tribunal applied those provisions.
The Social Security Act
Despite the presumably necessary jargon employed by those familiar with the complexities of the Social Security Act, the scheme of present relevance seems to be commendably simple.
That scheme is set forth by the Tribunal Member in his reasons for decision: [2020] AATA 978 at [12] to [21]. At its most simple, the monies paid to HGMZ by the Department were “affected” by her receipt of the monies received in settlement of the District Court proceedings. It is s 17(2) of the Social Security Act which defines “compensation” as including a “payment of damages”. Section 1169 provides that a “compensation affected payment is not payable … in relation to any day or days in the lump sum preclusion period”. That “lump sum preclusion period” is in turn calculated in accordance with s 1170, which provides (in relevant part) as follows:
…
(3) … the lump sum preclusion period is the period that:
(a)begins on the day on which the loss of earnings or loss of capacity to earn began; and
(b)ends at the end of the number of weeks worked out under subsections (4) and (5).
(4)The number of weeks in the lump sum preclusion period in relation to a person is the number worked out using the formula:
(5)If the number worked out under subsection (4) is not a whole number, the number is to be rounded down to the nearest whole number.
The phrase “compensation on part of lump sum” for the purposes of this formula is defined in s 17(3) as follows:
17 Compensation recovery definitions
…
(3) … the compensation part of a lump sum compensation payment is:
(a) 50% of the payment if the following circumstances apply:
(i)the payment is made (either with or without admission of liability) in settlement of a claim that is, in whole or in part, related to a disease, injury or condition; and
(ii)the claim was settled, either by consent judgment being entered in respect of the settlement or otherwise; …
The phrase “income cut-out amount” is defined in s 17(8) by reference to the following formula:
Finally, s 1184K(1) confers power of the Secretary to “disregard some payments” in the event of “special circumstances”. That sub-section provides as follows:
For the purposes of this Part, the Secretary may treat the whole or part of a compensation payment as:
(a) not having been made; or
(b) not liable to be made;
if the Secretary thinks it is appropriate to do so in the special circumstances of the case.
Although each of the three challenges advanced on behalf of HGMZ are to be rejected, each should be separately addressed.
Economic loss
Before the Tribunal, HGMZ contended (inter alia) that “the preclusion period should not apply as there [was] ‘no evidence’ that settlement had an economic component”: [2020] AATA 978 at [22].
The Tribunal rejected this contention.
The challenge to the findings of the Tribunal was the subject-matter of Ground 1 as set forth in the Further Amended Notice of Appeal.
The insurmountable difficulty confronting HGMZ on “appeal” to this Court is that the findings made by the Tribunal were findings of fact. Rather than there being “no evidence” to support those findings, there was on one view at the very least conflicting evidence which it was the task of the Tribunal to resolve or, on another view, a considerable body of evidence in support of the findings made.
As to the question as to whether the settlement monies had included a component for economic loss, there were some limited competing facts before the Tribunal. On the one hand, for example, at the time of the motor vehicle accident:
·the Applicant was in receipt of a disability support pension.
There was also, albeit a matter not contemporaneous with the accident:
·a Centrelink Job Capacity Assessment Report dated January 2008, which assessed the Applicant’s work capacity within “at least the next twelve months” as between zero to 7 hours per week.
On the other hand, however (and without attempting to be exhaustive), there was also:
·the Statement of Claim filed in the District Court proceedings on behalf of the Applicant, together with the Particulars of Loss of Income, which clearly claimed damages for economic loss; and
·an advice from her Counsel prior to settlement canvassing (inter alia) evidence “includ[ing] the substantial losses that she claims for … her lost opportunity of taking work overseas”.
Orders were made by consent by the District Court on 17 August 2017. Albeit in a letter subsequent to that date:
·the insurer’s legal advisers wrote to the Department on 23 August 2017 advising that “economic loss was a component of the settlement”.
Such was some of the evidence before the Tribunal.
The Tribunal reviewed the facts giving rise to the settlement of the motor vehicle accident claim, including criticisms made by HGMZ against her legal representatives in the compensation claim and her claim that she was unaware that her claims included a claim for loss of income ([2020] AATA 978 at [29] to [45]), and concluded:
[44] There is every indication that she is a savvy and engaged litigant. The Tribunal finds that the Applicant was entirely aware of the terms of settlement that were included in the Consent Judgement.
[45] For these reasons the Tribunal is satisfied that the lump sum payment of $135,000 to the Applicant was for damages including a lost capacity to earn component. The payment is therefore a compensation payment as defined by section 17(2) of the Act. Given that the Applicant was in receipt of a compensation affected payment at the time she received the compensation payment, a preclusion period therefore applies.
These were findings of fact open to the Tribunal to be made. No question of law arose.
Ground 1 of the Further Amended Notice of Appeal is rejected.
The preclusion period
The subject matter of the present proceeding was the attempt by the Department to recover $31,142.86. It was the Department’s view that HGMZ’s social security payment was not payable during the period 16 May 2013 through to 10 September 2014, that being the “preclusion period”.
The challenge of relevance was that set forth as follows in Ground 3 of the Further Amended Notice of Appeal:
The Member impermissibly relied upon section 33A of the Health and Other Services (Compensation) Act 1995 (Cth) to suggest the Appellant knew about the preclusion period.
The written submissions filed on behalf of HGMZ recount the finding made by the Tribunal (at [44]) that she was “a savvy and engaged litigant”. The Tribunal had previously recounted as follows the terms of the Consent Judgment to which it was referring, including the reference in those terms to s 33A of the Health and Other Services (Compensation) Act (without alteration):
[35] On 17 August 2017 a consent judgement was filed with the District Court of NSW between the Applicant and Veolia. Notably the Consent Judgement included the following terms:
4. The plaintiff [the Applicant] agrees to pay out of the judgement sum ... any amount payable to the plaintiff for workers compensation, social services, sick leave payments, make-up pay, accident pay, past medical or nursing home expenses or otherwise which may not have been deducted by the defendant’s insurer under these terms, and/or pay to the parties entitled all outstanding medical, hospital, ambulance and other out-of-pocket expenses.
…
9. The plaintiff acknowledges that they were notified by the defendant’s insurer before they accepted the offer of settlement contained in these terms of the insurer’s intention to make an advance payment to the Commonwealth under s33A of the Health and Other Services (Compensation) Act 1995 (Cth)
[Emphasis added]
Section 33A, it may be noted, requires a “compensation payer or insurer” to give notice where monies are to be paid under a judgment or settlement.
It was common ground that s 33A was of no relevance to the resolution of HGMZ’s claims as made before the Tribunal. That which divided the parties was whether the Tribunal had placed reliance upon s 33A when making its finding as to whether HGMZ had knowledge “about the preclusion period”.
That the Consent Judgment was expressed in these terms was simply a question of fact. And it was a fact upon which the Tribunal Member could place reliance when making findings as to those matters of which HGMZ had knowledge. The finding that she was a “savvy and engaged litigant” was also a finding of fact open to be made by the Tribunal.
The finding made by the Tribunal with reference to the terms of the Consent Judgment was that set forth a paragraph [44] of its reasons; no finding of fact was made by the Tribunal that HGMZ had knowledge of the preclusion period by reason of her knowledge of the terms of the Consent Judgment.
The findings made by the Tribunal with reference to the preclusion period were those set out at paragraphs [44] and [45] and thereafter as follows:
Calculation of the preclusion period
[46] Centrelink applied the formula and calculated a preclusion period in accordance with section 1170 of the Act. The gross sum of $135,000 is divided by two, being $67,500, to arrive at the “compensation part of lump sum” in accordance with section 17(3)(a)(i) of the Act. The income cut out amount is the amount above which no pension is payable to a single person under the ordinary income test. The formula used to calculate the income cut out amount is contained in subsection 17(8) of the Act.
[47] The Applicant initially contended that the deducted payments exceed what she was entitled to from Centrelink and that Centrelink is guilty of “double dipping” into the Applicant’s savings. The example she cited during proceedings to support this contention does not take into account a lump sum advance repayment that was deducted from her fortnightly payment.
[48] The calculations are clearly set out in the Section 37 Tribunal documents and I conclude that the length of the preclusion period calculated by Centrelink is correct. At the end of the hearing the Applicant’s representative conceded that Centrelink’s calculations were indeed correct.
These findings made no reference to s 33A of the Health and Other Services (Compensation) Act. Nor is any reference made to s 33A in the Tribunal’s exposition of the “Relevant Law and Policy” at paras [12] to [21] of its reasons nor, for that matter, anywhere else in its reasons. No inference should be drawn that the Tribunal’s reference to s 33A when extracting the terms of the Consent Judgment formed any part of its reasoning when making a finding that HGMZ was aware of “the terms of settlement”.
Given the rejection of HGMZ’s first Ground, the finding at para [45] is inevitably a finding of fact open to be made by the Tribunal on the materials before it. No error is disclosed in the finding of the Tribunal at para [44], including the absence of error in the reliance by the Tribunal upon term 9 of the Consent Judgment and the knowledge of that term by HGMZ.
Ground 3 is thus rejected.
Special circumstances
The challenge sought to be made to the Tribunal decision that HGMZ had not made out “special circumstances”, such that recovery of monies should be waived, challenged the Tribunal’s exercise of the discretion conferred by s 1184K(1) of the Social Security Act.
This challenge was that raised by Grounds 2 and 7 and possibly Grounds 3 and 4 of the “questions” set forth in the Further Amended Notice of Appeal.
In affirming the decision under review, the Tribunal, in its reasons for decision, separately addressed:
·the principles to be applied and some of the authorities as to what constitutes “special circumstances” (at paras [49] to [58]);
·the “financial circumstances” of HGMZ (at paras [59] to [64]); and
·the “medical costs” incurred by HGMZ (at paras [65] to [66]).
The Tribunal thereafter went on to express its “Conclusion” (at paras [67] to [70]). Its ultimate conclusion was expressed as follows:
[70] I have considered the Applicant’s claims that special circumstances exist to justify disregarding any or all of the compensation payment in order to reduce or waive the preclusion period - including financial hardship, medical expenses, her lack of knowledge about the economic loss component to her settlement, her legal fees and obligations to her children. Based on the evidence, it is my conclusion that these circumstances do not, individually or cumulatively, amount to special circumstances and that the preclusion period applies in full.
In seeking to contend that the Tribunal decision as to the manner in which it exercised afresh the discretion conferred by s 1184K, the Further Amended Notice of Appeal asserts in Ground 2 that:
·there was “no evidence” that she “suffered either ‘economic loss’ or ‘lost capacity to earn’”;
·her “former lawyer provided her with negligent advice”;
·her “former lawyers overcharged her during the course of her Motor Vehicle Accident litigation”;
·“she has not yet had the benefit of … medical treatment because of the imposition of a special preclusion imposed on 25 August 2017”;
·she had “suffered another car accident two months after the settlement” and had “re-injured herself”; and
·she “suffered a psychological injury”.
Ground 4, to the extent that it may form part of an argument that the Tribunal’s exercise of the s 1184K discretion may have miscarried, contends that the Tribunal “relied on irrelevant considerations or failed to consider relevant material”. Ground 7 asserts that “[n]o lawful reasons are stated for the bare conclusion” at para [70].
To the extent that the challenge to the exercise of the discretion conferred by s 1184K was founded upon the manner in which findings had been made as to the claim for economic loss and what had or had not been the subject matter of the District Court settlement and/or the manner in which the “preclusion period” was calculated and applied, the challenges by HGMZ to those two findings have been rejected. More fundamentally, however, is the simple fact that the Tribunal in its reasons for decision addressed (for example) the submissions made by her in respect to “medical costs” (at paras [65] and [66]) and took those submissions into account. So, too, did the Tribunal take into account her submissions as to her living arrangements “with her husband and” her receipt of “social security payments on the basis that they are separated under the same roof” (at para [63]). And, similarly, the Tribunal addressed her submissions as to her dissatisfaction with her lawyers and her complaint to the Office of the Legal Services Commissioner (at para [64]). The Tribunal had previously adverted to the fact that HGMZ has been “involved in another motor vehicle accident” (at para [31]). It cannot be inferred that the Tribunal did not base its conclusion (at para [70]) and its decision to affirm the decision under review “for the reasons stated above” (at para [71]) upon the entirety of the materials before it.
The submissions in fact made by HGMZ to the Tribunal were thus addressed and resolved. No question of law (or error of law) is exposed by the Tribunal simply not referring to a particular submission or not giving a particular submission the weight or the emphasis which a party may have wished: cf. WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46] to [47], (2003) 236 FCR 593 at 604 to 605 per French, Sackville and Hely JJ. And no question arises as to the Tribunal having not addressed a submission “which is so fundamental it goes to jurisdiction”: cf. WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319 at [21] per Lee, Carr and Tamberlin JJ. The Tribunal’s reasons, it must constantly be recalled, are not to be read with an eye keenly attuned to the detection of error: cf. Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 271 to 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Ground 2 is rejected.
Ground 7 is also rejected. “Sufficient reasons”, it is respectfully concluded, have been provided, reasons which go to making “the system of appeals effective”: Roncevich v Repatriation Commission [2005] HCA 40 at [62], (2005) 222 CLR 115 at 135 per Kirby J. It is an impermissible course for HGMZ to focus attention “largely” upon para [70] of the reasons for decision without also recognising that that paragraph seeks to encapsulate the earlier findings made by the Tribunal in respect to each of the matters there referred to.
Grounds 3 and 4 are also rejected. Ground 3 overlaps the consideration given to the preclusion period and, in any event, involves a finding of fact and not law. Nor can the matters identified in Ground 4 be characterised as irrelevant, and the relevant matters there outlined were considered by the Tribunal.
The novel question – an expanded doctrine of legal unreasonableness?
The new Ground 6 sought to be raised was expressed in the Further Amended Notice of Appeal as follows:
Whether a new ground exists (independent of special circumstances) for this Court to review the Member’s decision using an expanded doctrine of legal unreasonableness that employs structured proportionality as a guiding principle. This ground will raise the recent authorities of Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437.
(Particulars supplied in a separate document)
Whatever difficulties may arise when attempting to draft this as a question of law for the purposes of s 44(1) of the Administrative Appeals Tribunal Act can presently be left to one side.
In further exposition of this proposed new Ground, reliance is placed by HGMZ (at least in part) upon the application of the “50 Per Cent” rule which was introduced by way of amendment to the Social Security Act by the Social Security Amendment Act 1988 (Cth). Her challenge to the application of this rule in the proceedings before the Tribunal was summarised as follows in the Tribunal’s reasons:
[53] The Applicant contends that she meets the requirements for exercise of the special circumstances discretion. She was subject to excessive legal fees and was provided with “negligent” legal advice. She says the application of the 50 per cent rule, whereby half of the payment is deemed compensation, is unfair in her circumstances.
In resolving HGMZ’s contention, the Tribunal placed reliance upon the observations of Kiefel J (when sitting as a Judge of this Court) in Secretary, Department of Family and Community Services v Chamberlain [2002] FCA 67, (2002) 116 FCR 348 at 355 (“Chamberlain”), including the following observations of her Honour:
[33] In the present case the Tribunal considered that the application of the formulae was unfair to the applicant because she would have to pay more than she had received by way of compensation for economic loss, indeed twice as much. That factor will however be present in most cases and is an aspect of the application of the formulae. In my view it cannot, by itself, amount to a special circumstance, one out of the ordinary.
Her Honour there set aside the Tribunal decision upon the basis that it had not “considered the facts put forward as personal to the applicant…”: [2002] FCA 67 at [36], (2002) 116 FCR at 356. Although a submission was advanced that the decision in Chamberlain was erroneous, it is (with respect) a decision which should be followed: cf. Marr v Australian Telecommunications Corporation (1991) 105 ALR 647 at 651 per Hill J (“Marr”); Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757. French J (when sitting as a Judge of this Court) summarised as follows the principles to be applied, and the reasons for those principles, when a submission is made to a single Judge that an earlier decision should not be followed:
[76] The injunction to judicial comity does not merely advance mutual politeness as between judges of the same or co-ordinate jurisdictions. It tends also to uphold the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges. And where questions of law, and statutory construction, are concerned the proposition that a judge who has taken one view of the law or a statute is ‘clearly wrong’ is one not lightly to be advanced having regard to the choices that so often confront the courts particularly in the area of statutory construction. Indeed, where a serious doubt arises on the part of one judge, about the correctness of the law as stated by another, in a matter of importance, it may be desirable for a case to be stated to the Full Court for early resolution of the question in contention.
Appl’d: Indooroopilly Children Services (Qld) Pty Ltd v Commissioner of Taxation [2006] FCA 734 at [50], (2006) 63 ATR 106 at 119 per Collier J. It is not considered that the decision in Chamberlain was “clearly wrong”: cf. Marr. Nor is it considered that it should not be applied to the facts now before this Court.
On the facts of the present case, the Tribunal considered the claims made by the Applicant and her submissions as to her change in circumstances following the settlement, which added to her medical costs, and that the October 2017 accident increased her overall medical expenses: [2020] AATA 978 at [56] to [57].
Leave to raise this further argument is refused primarily upon the basis that the so-called “novel” argument lacks any self‑evident merit or factual support.
However the new argument is sought to be advanced, any success on the part of HGMZ would involve a considerable departure from the limits of the reach of “unreasonableness” as a ground of review as set forth in Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332. The former Chief Justice, French CJ, there cautioned in respect to the limits of unreasonableness (at 351):
[30] The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker…
After citing Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230 (“Wednesbury”), Hayne, Kiefel and Bell JJ reinforced as follows the fact that “unreasonableness” was not to be confined to administrative decisions that are “irrational” or “bizarre” (at 364 and 367):
[68] … Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision — which is to say one that is so unreasonable that no reasonable person could have arrived at it — nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship’s judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified…
…
[76] … Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
(footnotes omitted)
Justice Gageler expressed as follows the reach of “unreasonableness” as a ground of review in different terms, but again in terms which preserved to the decision-maker a freedom to make “defensible” decisions (at 375):
[105] “It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.
(footnotes omitted)
With reference to the present decision now before the Court, the Tribunal considered and resolved the submissions advanced to it in respect to whether it should waive recovery monies. That decision was a decision as to the factual merits of the claims being made by HGMZ. The new argument sought to be relied upon (by reference to separate particulars provided by HGMZ):
·seeks to encourage the Court “to move away from concepts of unfairness or harshness, a threshold required under the Special Circumstances provisions”; and
·seeks to encourage a conclusion that “[t]he imposition of social preclusion in the Appellant’s circumstances is disproportionate to the objectives of the enabling legislation because it does not safeguard the objects of the legislation”.
The initial difficulty confronting the Applicant in seeking to raise this new argument is that it inevitably seeks to challenge the Tribunal’s conclusion based upon its findings of fact. The conclusion was an evaluative assessment as to whether “special circumstances” had been made out by reference to the facts relied upon. The new argument does not seek to contend that the Tribunal erred in its construction of the statutory phrase but, rather, seeks to challenge its application to the facts. Although it can readily be accepted that different conclusions may have been reached by different Tribunal members, that proposition falls well short of making out any argument that it was not a decision which could “rationally” be made, or not a decision within the range of decision-making that should not be interfered with by a Court.
To employ the language of the Applicant’s submissions, the Tribunal’s decision could not readily be characterised as “disproportionate to the [objects] of the enabling legislation because it [did] not safeguard the objects of the legislation.”
Even had leave been granted to HGMZ to rely upon this new Ground, the Ground would in all probability have been rejected.
The remaining challenges to the decision of the Tribunal have been exposed to be challenges largely to the factual merits of the decision reached or as to the manner in which the Tribunal exercised its discretion under s 1184K of the Social Security Act. Moreover, given the limited assistance provided as to what was the proposed content of the “expanded doctrine”, the present proceeding did not provide a factual context in which the argument could be fully explored.
CONCLUSIONS
The orders sought pursuant to s 37AF of the Federal Court Act seeking the suppression of identified material and a change in the pseudonym are refused.
Although the form of the Further Amended Notice of Appeal does not comply with r 33.12 of the Federal Court Rules and fails to identify any “question(s) of law” for the purposes of s 44(1) of the Administrative Appeals Tribunal Act, the manner in which it was drafted sufficiently identified the issues sought to be resolved. The application has thus been resolved as a matter of substance and not form.
An extension of time should be granted in which to commence the proceeding. Leave should also be granted to amend the Notice of Appeal in the form of the Further Amended Notice of Appeal dated 17 December 2020, other than Ground 6.
The Grounds the subject of oral submissions and the more detailed written submissions – namely Grounds 1, 2, 3 and 7 have been rejected. To the extent that reliance was also sought to be placed upon Grounds 4 and 5, those Grounds are without substance.
The proceeding should thus be dismissed.
It was agreed during the course of the hearing that costs should follow the event.
THE ORDERS OF THE COURT ARE:
1.The application made pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) is refused.
2.Time is extended in which to commence the proceeding to 1 June 2020.
3.Leave is granted to file and rely upon the Further Amended Notice of Appeal dated 17 December 2020, other than Ground 6.
4.The proceeding is dismissed.
5.The Applicant is to pay the costs of the Respondent, either as taxed or agreed.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Flick. Associate:
Dated: 29 March 2021
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