Phillips and Secretary, Department of Social Services (Social services second review)
[2018] AATA 1636
•14 June 2018
Phillips and Secretary, Department of Social Services (Social services second review) [2018] AATA 1636 (14 June 2018)
Division:GENERAL DIVISION
File Number(s): 2017/2312
Re:Robin Phillips
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:14 June 2018
Place:Brisbane
The Tribunal orders, pursuant to s 25(4A) of the Administrative Appeals Tribunal Act 1975, that the issues for determination before this Tribunal be limited to the issue of the calculation of the debt of $26,548.87 and whether the Tribunal should waive this debt because of special circumstances.
The Tribunal remits the application to the respondent under section 42D of the Administrative Appeals Tribunal Act 1975 for a period of 30 days.
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Deputy President Dr P McDermott RFD
CATCHWORDS
PRELIMINARY ISSUE – where a debt was raised by Centrelink – where the valuation method of valuing a property is contested by the applicant – whether the applicant should be permitted to re-litigate the issues already determined by the Tribunal – no new or compelling evidence to suggest previous Tribunal decision should be regarded as non-determinative – order made to limit issues before Tribunal – application remitted to the respondent under section 42D
LEGISLATION
Administrative Appeals Tribunal Act 1975
CASES
Kirkovski v Secretary, Department of Family and Community Services [2004] FCA 790
Moore and Military Rehabilitation and Compensation Commission [2017] AATA 532
Cheung v Administrative Appeals Tribunal [2009] FCA 214
Hicks and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1049
Matusko and Australian Postal Corporation [1995] AATA 14
Tsiokantas and Secretary, Department of Social Services (Social services second review) [2018] AATA 398
Spencer v Commonwealth (1907) 5 CLR 418REASONS FOR DECISION
Deputy President Dr P McDermott RFD
14 June 2018
INTRODUCTION
Throughout this application process the applicant has raised his concerns about how a property previously owned by him was valued by Centrelink. This valuation ultimately led to a debt being raised by Centrelink on his Disability Support Pension (‘DSP’) payments.
The applicant contends that this application is concerned solely with the valuation of the property, however this issue was considered in a previous decision of the Tribunal.
In response to the applicant’s assertions, the respondent has argued that the issue of the valuation is unable to be looked at again, or re-litigated. The respondent has requested that the Tribunal make a determination to that affect.
BACKGROUND
The applicant was in receipt of DSP from 24 December 1998 to 10 March 2004. On
8 September 2009, the respondent raised a debt against the Applicant in the amount of $58,561.27 on the basis that the value of the assets held by the applicant and his partner had not been taken into account when calculating the rate of DSP, and so the applicant was incorrectly paid DSP during the period of 18 March 1999 to 9 March 2004.
The applicant sought internal review of this decision. On 8 January 2010 an Authorised Review Officer (‘ARO’) for the respondent varied the original decision and determined that a debt of $26,094.12 was payable by the applicant.
On 15 February 2011 the then Social Security Appeals Tribunal (‘SSAT’) set aside the ARO’s decision and remitted it to Centrelink.
The applicant further appealed the SSAT decision to the Administrative Appeals Tribunal (‘AAT’). In the decision of the Tribunal dated 13 February 2012, it was found that the valuation of the property put forward by Mr Becker of the Australian Valuation Office (‘AVO’) should be preferred as it was “more comprehensive and offered a longitudinal study in value…” and the valuer had “more experience in conducting this kind of historical valuation”.[1]
[1] T-Documents, T7 at p. 93-94 and 97.
On 23 March 2012 Centrelink recalculated the debt and determined that a debt of $26,548.87 was owed by the applicant.
On 16 August 2012 the applicant requested an internal review of the value of the Townsville property, on the basis that he had new evidence. On 24 November 2014 the applicant also applied to Centrelink for ‘Compensation for Detriment caused by Defective Administration’, based on a number of factors including his contention that the valuation method used by the AVO was “unacceptable”. This claim was rejected by Centrelink on 9 March 2015. In the decision to reject the claim it was noted that the applicant was informed by the Authorised Officer that the only remaining avenue open to him was an appeal to the Federal Court of Australia.[2]
[2] T-Documents, T10 at p. 172.
On 6 October 2015 the applicant was asked to repay the $26,548.87 debt still owed by him to Centrelink.
On 15 August 2016 the applicant again sought further review of the debt. On 16 August 2016 an ARO advised the applicant that no further review would be undertaken as the matter had already been heard, and no significant new evidence had been provided.[3]
[3] T-Documents, T19 at p. 278.
On 8 November 2016 the applicant applied to the Social Services and Child Support Division of the AAT (‘SSCSD’) for review, on the basis that the “valuation was incorrect”.[4]
[4] T-Documents, T20 at p. 281.
On 21 March 2017 the SSCSD affirmed recovery of the debt in the sum of $26,548.87. The SSCSD found that while the decision before them was reviewable, the Tribunal had already exhausted its power to review the valuation issue raised by the applicant. It found that there was no new evidence so compelling as to warrant the Tribunal’s previous findings being regarded as non-determinative.[5]
[5] T-Documents, T2 at p. 8.
On 18 April 2017 the Applicant lodged an Application for Review of a Decision with the General Division of the Tribunal.
ISSUE
The Respondent has sought that the Tribunal make a determination that the applicant is not permitted to re-litigate and/or dispute the valuations of the Townsville property for the period 4 March 1999 to 25 November 2003, as these valuations were determined by the Tribunal in the decision dated 13 February 2012.
The Tribunal must determine whether it can and should restrict the issues that are reviewable in this application.
APPLICANT’S SUBMISSIONS
The applicant has submitted that the matter currently before the Tribunal is based exclusively on the issue of the valuations applied to the Townsville property in the 2012 AAT decision[6], and he has filed a large amount of evidence relating to this issue. He has argued that he should be able to rely on this evidence and pursue a review of this issue for several reasons, which are outlined below.
Incorrect valuation method preferred
[6] Correspondence provided to the Tribunal dated 27 May 2017.
The applicant submits that the Tribunal’s reason for preferring the respondent’s valuation on the basis of the comprehensive nature of the report and the valuer’s experience, was not a valid legal reason for accepting and preferring that valuation over the applicant’s.[7] The applicant has also submitted that the Tribunal accepted this valuation at the word of the Centrelink representative without making further enquiries.[8] The applicant contended that Mr Becker produced a new report to justify his figures late in the application process in 2011, and this meant that the applicant and the valuer he had hired did not have a chance to review and respond to the material properly.
[7] T-Documents, T9 at p.119.
[8] Submission of the applicant, undated, provided to the Tribunal on 3 December 2017.
The applicant also seeks to rely on the fact that the respondent’s original submissions in the 2011 AAT process indicated that the “Tribunal must consider the net market value” of a property “based on comparable sales”, per Kirkovski v Secretary, Department of Family and Community Services [2004] FCA 790, while the valuer they preferred used the ‘indexation method’.
New evidence
The applicant has submitted that he informed the Tribunal that the valuation method put forward by the respondent was flawed, but he was unable to find and produce key evidence at the time.
The applicant submits that there is new evidence regarding the failure of Mr Becker to comply with professional standards. The applicant has stated that Mr Becker took 3 days to complete 22 valuations on the Townsville property, did not speak to anyone involved with the property, did not visit the property, and was not aware of several issues. During the 2011 AAT hearing, Mr Becker was allegedly asked if the figures would have been different had he known that the property had been in a dilapidated state, and Mr Becker said the figures would have been adjusted accordingly. The applicant claims the Tribunal did not take this into account.[9] He claims that the Australian Property Institute (‘API’) allegedly commenced a case against Mr Becker to investigate whether he had broken the API rules, but three months after the case was opened Mr Becker passed away and the investigation was terminated.
[9] Submissions of the applicant received 13 March 2018, vol 2, Part 1, p. 2.
The applicant has provided new evidence of correspondence between himself and the API which he states confirmed that the valuation method (the ‘indexation method’) used by Mr Becker is not considered acceptable.[10] Correspondence from valuer Mr Adrian Bagent which confirms this opinion has also been introduced.[11] However, the applicant also provided evidence from the API which revealed Mr Becker had actually used the accepted ‘comparison’ valuation method.
[10] Submissions of the applicant received 13 March 2018, volume 1, A-04.
[11] Ibid at A-08.
The applicant has provided a letter from LJ Hooker dated 9 October 1997 which discusses the run-down state of the Townsville property;[12] this letter was mentioned by the application during the original 2011 application process, but he was not able to produce it at the time.
[12] Ibid at C-03/1.
The applicant has also filed a recent email from Neris Goldsworthy dated 6 March 2017, which discusses why the Townsville property sold for an amount significantly higher than its value.[13]
Further appeal rights from the Tribunal
[13] Ibid at C-06/1.
The applicant admits that he had been told of his review rights with the Federal Court of Australia. He asserts that he spoke with QPILCH sometime after the 2012 AAT decision was handed down, and was advised not to appeal as it would cost more money and he would find himself up against another “lying” Centrelink lawyer.[14] However, the applicant has also claimed that at no time did anyone mention that the AAT hearing was final and could not be challenged.
Special circumstances
[14] Submission of the applicant, undated, provided to the Tribunal on 3 December 2017.
The applicant informed the Tribunal that there are special circumstances to consider in this matter.[15] The applicant has significant health issues including terminal chronic obstructive pulmonary disease and heart failure.
[15] Submission of the applicant, undated, provided to the Tribunal on 3 December 2017.
RESPONDENT’S SUBMISSIONS
The respondent submits that the Tribunal has already made a determinative finding regarding the factual question of the value of the Townsville property.
The respondent submits there is no new or compelling evidence that warrants this factual question to be re-litigated. The applicant presented his argument that the valuation method was flawed and should not be accepted during the original AAT hearing.[16] The decision of the AAT was therefore made having considered the applicant’s argument against the AVO’s method of valuation.
[16] T-Documents, T25 at p. 311.
The respondent has also highlighted the applicant’s knowledge of his appeal rights with the Federal Court of Australia, and argues that his concerns regarding possible costs or adverse consequences do not provide a reason why the issue should instead be re-litigated at the Tribunal.
The respondent has sought to rely on s 33(1)(a) of the Administrative Appeals Tribunal Act 1975 when submitting that the Tribunal should restrict the applicant from leading evidence regarding the valuation of the Townsville property. The respondent contends that, under this provision, it is open to the Tribunal to set boundaries on a matter with respect to the issues to be raised and the evidence to be considered.
LEGISLATIVE FRAMEWORK
Section 33(1)(a) of the Administrative Appeals Tribunal Act 1975 confers upon the Tribunal a general discretion to determine the procedure of the Tribunal:
33 Procedure of Tribunal
(1) In a proceeding before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
Section 25(4A) of the Administrative Appeals Tribunal Act 1975 is also relevant. It provides:
25 Tribunal may review certain decisions
(4A) The Tribunal may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers.
As the Tribunal previously noted in Moore and Military Rehabilitation and Compensation Commission, the re-litigation of Tribunal decisions is a vexed area of law.[17]
[17] Moore and Military Rehabilitation and Compensation Commission [2017] AATA 532, [18].
In Cheung v Administrative Appeals Tribunal [2009] FCA 214 at [49] it was said that:
“Generally speaking there should not be re-litigation without reason of the same issues before the Tribunal where the re-litigation is of the same facts and issues already decided. In those circumstances, previous Tribunal decisions would generally be regarded as establishing the matters actually decided and the grounds for determination. It is open to a subsequent Tribunal to regard a previous decision as determinative of an issue and to decide that an issue should not be reopened.”
In Hicks and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1049, DP Forgie commented at [41] that the Tribunal may exercise its power of review “… unless it has already exercised it in relation to that particular decision on an earlier occasion. If it has already used that power to review that particular decision, it is said to have exhausted its power or to be functus officio…”
In Matusko and Australian Postal Corporation [1995] AATA 14, the Tribunal concluded:
(a)No formal issue estoppel arises from the Tribunal’s [previous] findings…
(b)The Tribunal should not generally allow re-litigation of issues already decided.
(c)But the Tribunal should use its flexible procedures to allow further consideration of issues where there is a reason to do so, for instance:
(i)Where there is a different decision,
(ii)Where there is a clear legislative intent,
(iii)Where the reconsideration decision is not final,
(iv)Where there has been a change in circumstances or fresh evidence, or
(v)Where justice to the parties requires a departure from the general rule.[18] (emphasis added)
[18] Matusko and Australian Postal Corporation [1995] AATA 14, at [35].
Although the list provided at point (c) in Matusko is neither exhaustive nor definitive, it is a useful guide as to the kind of circumstances where the Tribunal’s discretion to allow further consideration of issues may be enlivened.
CONSIDERATION
The applicant has requested that the Tribunal consider evidence put forward about the actual value of the Townsville property between 4 March 1999 and 25 November 2003. If allowed, this evidence could affect a determination regarding the amount of DSP the applicant was overpaid. The issue of the value of the Townsville property was determined by the Tribunal in 2012 on the basis of evidence put forward by both the applicant and respondent.
I consider that there is no actual new or compelling evidence upon which the valuation of the house should be revisited.
In Kirkovski v Secretary, Department of Family and Community Services [2004] FCA 790 Bennett J (at [17]) remarked:
“Under the Social Security Act 1991 (Cth) there is no statutory provision specifying any method for the valuation of assets. The test which seems to have been applied by the AAT in a majority of cases is a net market value approach based on comparable sales and the ‘best use’ to which the asset could be put (see Fong and Secretary Department of Family and Community Services [2002] AATA 173; Re Emberts and Repatriation Commission (1988) 16 ALD 19).”
Recently, in Tsiokantas and Secretary, Department of Social Services (Social services second review) [2018] AATA 398 Deputy President Sosso explained (at [38]) that the genesis for this approach can be found in the decision of the High Court in Spencer v Commonwealth (1907) 5 CLR 418.
The Tribunal in its decision on 13 February 2012 pointed out that the applicant had effectively argued that the Tribunal should disregard the price which the property did fetch in an open sale in making an assessment of the value of the property. In my respectful opinion the Tribunal was then correct to reject the argument, having regard to the observations of Bennett J in Kirkovski which endorsed the approach of this Tribunal in adopting a net market value approach based on comparable sales.
I appreciate that the applicant has gone to a great deal of trouble in presenting a substantial amount of material before the Tribunal, which has been reviewed. However, the applicant has not presented any cogent evidence which indicates that the decision of the Tribunal was incorrect. After the decision of the Tribunal was handed down the applicant was advised by QPILCH about whether he should appeal against that decision to the Federal Court of Australia. He decided not to lodge an appeal. In this application the applicant is now effectively agitating issues which could have been considered if he had lodged an appeal.
I cannot find there is any new and compelling evidence that allows me to exercise the discretion to regard the previous decision of the AAT as non-determinative and to allow the issue of the valuation to be revisited. On that basis I make an order limiting the issues for determination in this application.
DECISION
The Tribunal orders, pursuant to s 25(4A) of the Administrative Appeals Tribunal Act 1975, that the issues for determination before this Tribunal be limited to the issue of the calculation of the debt of $26,548.87 and whether the Tribunal should waive this debt because of special circumstances.
To enable the applicant to make any submissions on these issues I remit the application to the respondent under section 42D of the Administrative Appeals Tribunal Act 1975 for a period of 30 days. This will enable the applicant to present the respondent with up-to-date information on the circumstances regarding his health. As the applicant has fairly and squarely raised the issue of the enforcement of the debt it is appropriate to give the applicant the opportunity to make submissions on the issues of the recalculation of the debt as well as whether there are any special circumstances which would apply. The applicant could ask the respondent to make an application to the Tribunal under s 42D(6) of the Administrative Appeals Tribunal Act 1975 for an extension of time if it is required.
I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
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Associate
Dated: 14 June 2018
Date of interlocutory hearing: 15 January 2018 Applicant: By phone Solicitors for the Respondent: Sparke Helmore
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