Rodney Camm and Secretary Department of Social Services
[2016] AATA 111
•26 February 2016
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2015/2520
GENERAL DIVISION )Re: Rodney Camm
Applicant
And: Secretary, Department of Social Services
Respondent
CORRIGENDUM
TRIBUNAL: Deputy President F J Alpins
DATE: 22 June 2016
PLACE: Melbourne
The Tribunal directs the Registrar, pursuant to s 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the written statement of reasons for its decision made on 26 February 2016 as follows:
- In paragraph 11, in the fifth line, delete the second instance of “of the statutory words”;
- At the end of paragraph 21, delete the semicolon and replace with a full stop;
- In paragraph 57, in the second line, delete “it is recorded”;
- In paragraph 63, in the fourth line, delete “referred” and replace with “referring”;
- In paragraph 74, in the third line, after “special circumstances”, insert closing quotation mark;
- In paragraph 104, in the third line, insert “a” between “await” and “higher”.
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Deputy PresidentCamm and Secretary Department of Social Services (Social services second review) [2016] AATA 111 (26 February 2016)
Division
General Division
File Number
2014/6301
Re
Rodney Camm
APPLICANT
And
Secretary Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President F J Alpins
Date 26 February 2016 Place Melbourne The decision under review is affirmed.
[sgd].......................................................................
Deputy President F J Alpins
Catchwords
SOCIAL SECURITY – claim for disability support pension – compensation payment received for motor vehicle accident – preclusion period during which pension not payable – discretion to treat whole or part of compensation payment as not having been made - whether “special circumstances” – whether appropriate to exercise discretion
Legislation
Social Security Act 1991 (Cth) ss 17, 1169, 1170 and 1184K
Cases
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Amaca Pty Ltd v Frost [2006] NSWCA 173
Baini v R (2012) 246 CLR 469
Beadle v Director-General of Social Security (1985) 7 ALD 670
Bell IXL v Life Therapeutics (2008) 68 ACSR 154
Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531
Brennan v Comcare (1994) 50 FCR 555
Director-General of Social Security v Hales (1983) 47 ALR 281
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Haidar v Secretary, Department of Social Security (1998) 52 ALD 255
Kertland v Secretary, Department of Family and Community Services (1999) 95 FCR 64
Kirkbright v Secretary, Department of Family and Community Services (2000) 106 FCR 281
Pakzad and Secretary, Department of Employment [2015] AATA 337
Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2013) 138 ALD 180
Secretary, Department of Employment and Workplace Relations v Homewood (2006) 91 ALD 103
Secretary, Department of Family and Community Services v Sammut (1999) 58 ALD 691
Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32
Secretary, Department of Social Security v Smith (1991) 30 FCR 56
Secretary, Department of Social Security v Thompson (1994) 53 FCR 580
Sullivan v Civil Aviation Safety Authority (2014) 141 ALD 540
Trimboli v Secretary, Department of Social Security (1989) 17 ALD 201Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
Deputy President F J Alpins
26 February 2016
INTRODUCTION
This application for review concerns the respondent’s decision dated 12 June 2013 to reject the applicant’s claim for disability support pension (“DSP”), on the basis that payment of DSP is precluded until 2018 because of compensation he has received, by operation of Part 3.14 (ss 1160 – 1185) of the Social Security Act 1991 (Cth) (the “Act”).
The essential issue before the Tribunal is whether the circumstances of this case constitute “special circumstances” within the meaning of that expression as employed in s 1184K of the Act and, if so, whether the discretion conferred by that provision should be exercised, so as to treat the whole or part of the compensation payment made to the applicant as not having been made.
LEGISLATION
Section 1169 of the Act provides that a “compensation affected payment” is not payable during a “lump sum preclusion period” to a person who receives a lump sum compensation payment. Section 17(1) of the Act defines the term “compensation affected payment” to include a “disability support pension”.
Section 1170 prescribes the method for calculating a lump sum preclusion period and for ascertaining when it begins and ends. The length of the preclusion period is calculated by dividing “the compensation part of a lump sum compensation payment” (defined in s 17(3) of the Act) by the “income cut-out amount” (worked out using the formula in s 17(8) of the Act).
Section 1184K of the Act provides that, for the purposes of Part 3.14 thereof:
“the Secretary may treat the whole or part of a compensation payment as ... not having been made ... or ... not liable to be made ... if the Secretary thinks it is appropriate to do so in the special circumstances of the case.”
FACTUAL AND PROCEDURAL HISTORY
The applicant, Mr Rodney Camm, is 49 years of age. On 17 August 2006 he received a lump sum compensation payment in the amount of $806,000 from the Transport Accident Commission (the “TAC”) in respect of a motorcycle accident in which he was involved in 2004.
By separate letters each dated 22 August 2006, the applicant, his then wife and the firm Maurice Blackburn Cashman, who acted for Mr Camm, were informed that he was therefore subject to a preclusion period for the purposes of Pt 3.14 of the Act from 19 August 2006 until 7 September 2018 (the “preclusion period”), being described in that correspondence as the period of time “during which you will not be eligible to receive Centrelink payments”.
A financial agreement between the applicant and his wife made for the purposes of s 90C of the Family Law Act 1975 (Cth) to which I refer again later in these reasons (the “financial agreement”) establishes that Mr Camm and his wife separated in February 2011. Mr Camm and his wife executed the financial agreement on 17 September 2012.
On 6 March 2013, Mr Camm lodged a claim for DSP, signed by him on 12 October 2012, which forms the genesis of this proceeding. As I have indicated, it was rejected by respondent by letter dated 12 June 2013 on the basis that he is subject to the preclusion period. That decision was affirmed by a Centrelink authorised review officer. Mr Camm then appealed to the Social Security Appeals Tribunal (the “SSAT”), which affirmed the respondent’s decision; consequently, this application for review was made.
RELEVANT PRINCIPLES
Section 1184K of the Act involves a two-stage decision-making process:
(a)first, the determination of the question of whether the circumstances in question constitute “special circumstances” within the terms of the provision; and
(b)if that question is answered affirmatively, the subsequent consideration of whether the discretion conferred by that provision should be exercised, so as to treat either the whole or some part of the relevant compensation payment as not having been made or as not liable to be made
(Secretary, Department of Family and Community Services v Sammut (1999) 58 ALD 691 at [21] per Branson J; Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 at [19] per French J).
Given the primacy of the statutory text of s 1184K of the Act, in my view that provision first requires determination of the question of whether the particular circumstances of an applicant’s case, considered holistically, can properly be described as being “special circumstances”, according to the statutory meaning of that expression - that is to say, according to “the ordinary and grammatical sense of the statutory words of the statutory words to be interpreted having regard to their context and legislative purpose” (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47] per French CJ)).
The statutory text cannot be displaced by words employed in judicial decisions about that statutory text (Baini v R (2012) 246 CLR 469 at [14]). It is nevertheless instructive to make reference to certain principles expounded in such decisions (see Brennan v Comcare (1994) 50 FCR 555 at 572 per Gummow J).
In Pakzad and Secretary, Department of Employment [2015] AATA 337 at [18] – [27], I set out in some detail principles governing the construction and application of s 1184K of the Act established by relevant authorities, some being derived from that provision’s predecessors or analogues. I do not propose to set out that material in these reasons verbatim, but I nevertheless rely upon it as if it were set out herein. Those principles are shortly stated here as follows, for convenience.
With respect to the proper construction and operation of the expression “special circumstances” as employed in s 1184K:
(a)the question of whether circumstances are “special circumstances” is to be determined according to the particular facts of any given case (Beadle v Director-General of Social Security (1985) 7 ALD 670 at 674 (Full Court); Trimboli v Secretary, Department of Social Security (1989) 17 ALD 201 at 209 per Hill J; Woodward and Beaumont JJ agreeing; see also Secretary, Department of Employment and Workplace Relations v Homewood (2006) 91 ALD 103 at [35] per French J);
(b)“[t]he phrase ‘special circumstances’, although lacking precision, is sufficiently understood in our view not to require judicial gloss” (Beadle at 674);
(c)the word “special” in the context in which it is employed in s 1184K constitutes “a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened” (Boscolo at [18] per French J);
(d)for there to be “special circumstances”, the case must involve something unusual or different (ibid at 281-282; Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545 per Kiefel J), but it need not be an extremely unusual, uncommon or exceptional case (Boscolo at 281-282, citing Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32);
(e)unfair, unintended or unjust consequences of the imposition of a preclusion period will constitute special circumstances (Groth at 545; Haidar v Secretary, Department of Social Security (1998) 52 ALD 255 at 264 per Hill J, citing Beadle at 673-674);
(f)it is relevant to consider general factors such as the mental health and social conditioning of the applicant (Secretary, Department of Social Security v Thompson (1994) 53 FCR 580 at 586).
With respect to the discretion afforded by s 1184K:
(a)the legislative history with respect to the manner in which social security payments might be affected by the receipt of a lump sum compensation payment reveals that “the basic thrust of the legislation was to avoid a claimant being entitled both to social security benefits and benefits in the nature of income through lump sum payments” (Haidar at 263 per Hill J), hence preventing “‘double payment’ during the relevant period (the preclusion period)” (Kertland v Secretary, Department of Family and Community Services (1999) 95 FCR 64 at [1] per Merkel J);
(b)s 1184K is an ameliorative provision which allows for the harshness of the imposition of a preclusion period to be alleviated in appropriate cases involving special circumstances (Haider at 263-264; Kirkbright v Secretary, Department of Family and Community Services (2000) 106 FCR 281 at [22] per Mansfield J);
(c)the “application of the discretion is not confined to cases in which all or part of a compensation payment has been dissipated or lost” (Homewood at [44] per French J);
(d)it is to be exercised bona fide and for the purposes for which it is conferred as discerned by reference to the policy and purpose of the Act (Trimboli at 209 per Hill J; Beadle at 674).
As was observed in respect of an analogous predecessor provision, the imposition of a preclusion period, as accompanied by the discretion in s 1184K, “are intended to operate together as a fair balance of the interests of the recipient of the [compensation] payment with the competing interests of others in the community whose needs must be met as far as possible from a finite budget allocation for social security measures” (Secretary, Department of Social Security v Smith (1991) 30 FCR 56 at 61 per Doussa J); see also Beadle at 674).
It is appropriate for the Tribunal to have regard to the policy expressed in the Guide to Social Security Law in reviewing the respondent’s decision; however, the Tribunal is not bound by it, as the law lies in the statutory text rather than in the policy (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 69-70 per Bowen CJ and Deane J). In any event, in my view the relevant parts of the Guide provide assistance in the application of s 1184K of the Act.
EVIDENCE
Applicant’s evidence
Mr Camm gave oral evidence; he was cross-examined.
As a result of his serious injuries suffered in a motorcycle accident in 2004, Mr Camm became a T5 paraplegic.
In examination-in-chief, Mr Camm said that he did not recall being told by Centrelink or his solicitors about the preclusion period at the time he received his compensation payment in 2006. Furthermore, under cross-examination, Mr Camm said that he did not recall receiving the letter from Centrelink about his preclusion period to which I have referred. However, Mr Camm admitted that his lawyers spoke to him at the time of the settlement and that he could not say positively that he was not informed about the preclusion period. He also confirmed that he was aware of the preclusion period at the time he executed the financial agreement.
Many of the terms of the financial agreement, which as I have said was executed by Mr Camm and his then wife in September 2012, are in effect recitals, rather than being provisions with substantive effect. While I have had regard to the terms of the financial agreement considered as a whole, I do not propose to set them out in their totality these reasons. Relevantly, it was recorded in that agreement that:
(a)Mr Camm’s compensation payment was applied by him and his wife in four ways - to pay out the mortgage then secured over their home at Mt Evelyn, to purchase the factory operated by the business carried on by Mr Camm and his then wife in partnership, “Awesome Disc’s (Motorcycle)” (the “business”), to purchase stock for the business and to support their family financially;
(b)at the time of their separation, “none of the [applicant’s] compensation payment remained”;
(c)As a result of the compensation payment received by Mr Camm, he is precluded from receiving Centrelink benefits (with certain immaterial stated exceptions) until 7 September 2018;
(d)Mr Camm’s income was negligible while his then wife’s income earned as a part-time child care worker was about $600 per week;
(e)Mr Camm and his wife were partners in a disc brake manufacturing business “Awesome Disc’s (Motorcycle)” (the “business”);
(f)Mr Camm and his wife were joint registered proprietors of the Mount Evelyn property (which they agreed was valued at about $630,000) and that the current balance outstanding with respect to the mortgage over the property was $85,000 (noting that it had been about $33,800 at the time of separation but that Mr Camm had subsequently redrawn $41,200);
(g)the net proceeds of the sale of the business’ factory in the amount of about about $194,500 had been paid to Mr Camm’s wife and applied by her to the purchase of her own property in Mount Evelyn;
Pursuant to the terms of the agreement, the parties agreed that in consideration of the payment by Mr Camm of the sum of $25,000 to his wife, her interest in the family home in Mount Evelyn would be transferred to Mr Camm. Furthermore, Mr Camm’s wife agreed to transfer her right, title and interest in the business to him.
With respect to maintenance, the terms of the financial agreement provided that:
(a)the amount of $300,000 of the property to be transferred to Mr Camm was attributable to the provision of maintenance for him; and
(b)the amount of $1.00 of the monies paid to his wife was attributable to the provision of maintenance for her.
Prior to the execution of the financial agreement, Mr Camm signed a statement to the effect that he had received independent legal advice with respect to its terms; the parties acknowledged the receipt of such advice under the terms of the financial agreement.
In re-examination, when asked what his understanding was about how the financial agreement would affect him financially, Mr Camm said that “I didn’t believe the divorce was going to happen”. However, in answer to a question posed by the Tribunal, Mr Camm confirmed that, as indicated by the statement to which I have just referred, he was told about the “pros and cons” of entering into the agreement, but then confirmed under re-examination that the settlement reflected his former wife’s requests. I note that a memorandum of fees which indicated that the legal costs associated with his family law issues was in the amount of $2,126 was in evidence before the Tribunal.
Mr Camm gave evidence that he and his former wife have four children - three daughters (aged 23, 20 and 17 respectively) and a son who is 14 years old. His son lives with both Mr Camm and his former wife on alternating weeks, by mutual agreement with his former wife who, like Mr Camm, lives in Mount Evelyn, Victoria. His three daughters and his infant granddaughter, being his eldest daughter’s child, live exclusively with his former wife. Mr Camm said that his eldest daughter visits him with his granddaughter at his house every second day, sometimes daily. In answer to a question posed by his counsel about the significance of such visits to his “overall wellbeing and mental health”, Mr Camm said that such visits are “everything” to him.
As I have indicated, Mr Camm became sole registered proprietor of the family home pursuant to the terms of the financial agreement. Mr Camm has lived in the house since 2000. It has four bedrooms.
Certain modifications were made to the house to accommodate Mr Camm’s wheelchair after his accident. About nine internal doors were widened and three internal ramps were installed. The bathroom was modified. When Mr Camm’s wife ceased living in the house upon their separation, the laundry and kitchen were also modified. The TAC paid for the modifications and a twin washing machine and dryer. However, Mr Camm paid for a second-hand washing machine and dryer when the machine paid for by the TAC broke down.
Mr Camm gave evidence that he had understood that the TAC would modify a different house after seven years had passed, but that he had been informed by a TAC officer about twelve months ago that “they weren’t necessarily liable to redo another house for me”, although he didn’t know the reason for that. However, there was no documentary evidence before the Tribunal corroborating that statement.
In examination-in-chief, Mr Camm described how he had attempted to sell his house about twelve months earlier; he said that the house was “on the market” for about four months. In evidence before the Tribunal was a copy of a website advertisement, advertising the house for sale at “$585,000 plus”, albeit undated. Mr Camm said that about six months ago he received an offer conveyed by his real estate agent in the amount of $585,000 for the house, but that he did not accept it as “I felt the house was worth a lot more than that”, as the offer was $15,000 lower that the house next door had sold for recently, despite being an inferior property on a smaller block of land. Mr Camm said that at that time he was considering purchasing a property at Strath Creek as his new residence. He said that that property was located “an hour’s drive” away from Mount Evelyn. He understood that that property had ultimately sold for $350,000 and that it would have required modifications.
Mr Camm explained that he considered moving to Strath Creek at that time because it preceded the birth of his grandchild and also between he was not on good terms with his second eldest daughter at that time. Furthermore, Mr Camm said that he “just didn’t think about ... the repercussions of moving up there” at the time. Since then, he has lost contact with that daughter. However, he described his relationship with his third daughter as being “great” and said that she visits him about three days per week.
Under cross-examination, Mr Camm said that a further reason why he rejected the offer of $585,000 made for his house was because he had been advised by “a lot of people” that “they wouldn’t sell” for any less than, in substance, $700,000 and that the sum offered would not have “got me out of financial trouble” given his debts and fees, as he needed $70,000 more for that purpose.
When it was put to Mr Camm that he had indicated in an advertised that he was prepared to sell for $585,000, he said that amount was merely stated to attract interest. When it was put to him that he could have set a reserve price at auction, he said that real estate agents “have advised against” an auction of the property. When it was put Mr Camm that, allowing for his stated debts of $112,000 would have left about $473,000 available to him to purchase a new property and to relocate, he referred to the agent’s fees, moving fees, the “emotional factor” of arranging new carers and then said:
“just adding everything up at the time ... I’d prefer to wait off and try and get more for it”.
When Mr Camm was asked under cross-examination whether he had searched for a smaller property in Mount Evelyn to purchase, he said that “it’s an expensive area” and said that there were no suitable properties in Lilydale and surrounding suburbs. That conclusion was apparently founded on having conducted a search for “a few nights on the internet”. However, Mr Camm also said that he would “like to get the house back on the market again” and find a “nearby” alternative, but that “I’m just hoping for a fair amount for my house”, and that he considered that the amount of $585,000 did not answer that description.
In his evidence in chief, Mr Camm said that one of his home’s four bedrooms is used by him and one is used by his son when he stays. He gave evidence that another bedroom has been rented for the last four months by a friend “who’s in financial difficulty, so he just helps out when he can”, paying “anywhere between $80 to $100” per week, to “try and cover some utility bills”. Mr Camm gave evidence that he had had about eight tenants living in his house before that tenant, commencing about four months after his former wife and children left in 2011.
Mr Camm gave evidence that a female tenant lived in his house for seven months, from about mid-2012 to February 2013, but that she failed to pay about $3,500 in rent. He described difficulties and abuse he had suffered during her tenancy. He said that she became “boss of the house”, making pancakes for his children for Christmas breakfast and therefore usurping his role in that regard; furthermore, he said that she “basically filled up my garage and lounge room with her antiques”, as she described herself as an antiques dealer but did not work a regular job. He said that she subjected him to “constant verbal abuse” and that he eventually called the police when she punched him in the face and knocked him off his wheelchair. Furthermore, he said that frightened his son. In evidence before the Tribunal was an undated letter from one of Mr Camm’s carers corroborating that this incident occurred and recounting examples of the tenant’s abusive behaviour to her and also to Mr Camm.
In answer to a question posed by the Tribunal, Mr Camm said that the woman became his tenant in the following way. He said that he met her at a shopping centre and that “we got talking and just sort of remained in contact from there”. He said that the woman later asked him “out of desperation ... if she could come and live with me” and he agreed, given that he has a four bedroom house and is “alone in it every second week”.
Mr Camm said that he had also rented “two bedrooms for the price of one” to another woman and her daughter. He said that he ultimately advertised for tenants, solely on a website for those seeking flatmates.
Mr Camm also gave evidence about the care he receives, which is funded by the TAC. He said that he has a “team” of four carers and that he has known them for about 2 ½ years. They visit him six times a week, for periods varying between 1 ½ and 3 hours. He finds it “stressful” when a replacement carer is required on occasions. He said that he finds that it takes about two months for a carer to become accustomed to his needs. In evidence before the Tribunal was an undated letter to Mr Camm from an organisation providing carers to him, indicating that if were to relocate to rural Victoria, as was apparently then anticipated, new carers would need to be arranged for him.
Mr Camm has seen a local GP for about 15 years; he drives to his clinic for appointments, which occur about every six weeks. He is visited by a psychologist, Mr Oliver Beadle, for counselling sessions every fortnight. I refer to Mr Beadle’s evidence later in these reasons. TAC is funding hydrotherapy sessions for Mr Camm at a pool about 15 minutes’ drive from his house; he has had an introductory session. The TAC meets Mr Camm’s medical expenses.
With respect to his current financial circumstances, Mr Camm gave evidence that, apart from rental payments received from his current tenant as I have described, he also receives a family tax benefit in the amount of about $166 per fortnight, from which utilities payments are deducted in the amount of $40 per fortnight. In examination-in-chief, he said that he has about $130 in his personal bank account and that the highest amount of funds he has had in his personal bank account was $9000, reflecting an insurance proceeds in the amount of $12,500 received in respect of a car accident less the $3,500 he spent on his current car, about 12 months ago; however, he later said that that money was instead paid into the bank account of his business, to which I refer later in these reasons. Mr Camm said that he regularly receives assistance from charities in relation to his phone bills and also receives supermarket vouchers from them.
Mr Camm said that his application for a loan secured against his house had been refused. He said that he had sold certain items through the “eBay” website. He said that he owes $100,000 to his mother; $85,000 of that sum was used to discharge the balance of the mortgage on the house (as referred to in the financial agreement), while $15,000 was used to purchase his previous car and for related expenses. Mr Camm said that the TAC paid for modifications to his car.
Mr Camm gave evidence that he also owes $10,000 to his elder sister, which he had spent on rates and utilities charges. Furthermore, he said that he owes $2,000 to a friend, which he had used for car repairs; he said he is currently in arrears with respect to council rates relating to his house. Under cross-examination, Mr Camm said that “there’s not a lot of pressure” on him from his mother and sister to repay them, but said “there’s no more to borrow”.
I turn now to Mr Camm’s oral evidence about the expenditure of his compensation payment. He gave evidence that he and his wife had pooled their income and assets when they were married and that he had a joint bank account. He said that his wife “was in charge of all the finances”, including mortgage payments and other household expenses, while he ran what he at all times described in evidence as “his” business, despite the fact that the terms of the financial agreement stated that the business was, at the time of that agreement being executed, carried on in partnership with his then wife.
Mr Camm gave evidence that his solicitors sent him a cheque made out to his name for his compensation payment and that his then wife told him that it had been deposited into their joint account. I note that Mr Camm confirmed under cross-examination that about $36,000 of his compensation payment had been deducted for related legal fees.
Mr Camm alleged that in 2012 “after doing some investigation” he had discovered that in about 2007, as he guessed, his wife had withdrawn those funds, totalling about $600,000, from their joint account and deposited them in her personal account. Under cross-examination, Mr Camm said that his wife did so without his consent or knowledge and that he had no access to the account in which she deposited the funds. He explained that his wife would have therefore arranged the money for the purchase of the factory.
When it was put Mr Camm in cross-examination that he had never before made such an allegation, including when he gave evidence before the SSAT, Mr Camm responded first that “[w]ell, it’s become irrelevant that that was the case” and later “I’m not sure if I raised the point then”.
When it was put to him in cross-examination that Centrelink documents recorded him as having stated in November 2011 (and therefore before the financial agreement was executed) that his compensation payment had been fully expended, Mr Camm alleged further that his former wife told him when their marriage broke down that “[t]here’s no money left”, as only $14,000 of the compensation payment then remained, which is why there was “no money left” prior to separation.
It is recorded in the reasons for the decision of the SSAT that Mr Camm’s “chief submission was that he has no money left from the payout because it has gone in trying to keep his business afloat, the financial settlement with his former wife, and paying off the mortgage on his home and paying for modifications to his house”. When it was put to him in cross-examination and by questions posed by the Tribunal that his evidence before this Tribunal appeared to contradict his case as put before the SSAT, particularly with respect to having expended some of his compensation payment on the financial settlement, he was unable to give any satisfactory explanation of that discrepancy, explaining that “I’m getting confused now about it all”.
Mr Camm also gave evidence that he had discovered at some stage that funds were being deposited in the bank account of his business, but he alleged that the bank had refused to disclose the source of the deposits to him, despite the fact that it was his business. He said that only he and his former wife had access to that account.
Mr Camm was unable to say how much of his compensation payment had been expended on paying off the mortgage on the family home. The only evidence before the Tribunal bearing on that question is contained in first, a letter dated 31 July 2013 sent to Centrelink by an organisation called “Age Pension Solutions”, by which it made submissions on Mr Camm’s behalf, in which it was stated that Mr Camm paid $350,000 “to pay off the mortgage on his house”. However, in the absence of any corroborating evidence and indeed any indication of the source of that statement, I do not consider that document to be sufficiently probative. Furthermore, it is contradicted by the contents of a letter dated 14 April 2015 from Anglicare Victoria and an annexure to that letter prepared by a Mr Gary McCluskey in February 2015, said to be Mr Camm’s accountant, which states the basis upon which Mr Camm’s compensation payment was spent, according to Mr Camm’s instructions as given then.
The accountant’s letter suggests, amongst other things, contrary to Mr Camm’s evidence before the Tribunal, that the amount of $85,000, perhaps being the balance of the mortgage referred to in the financial agreement, was in fact paid off with his compensation payment, but no greater amount than that. It also, amongst other flaws, essentially fails to explain almost $400,000 of the expenditure, save for referring to it as “living expenses”, with no regard to how they might have been met by other sources of family income, particularly from the business and his then wife’s income. The covering letter from Anglicare Victoria states that those figures were subsequently “adjusted” by Mr Camm, without saying how or why.
Mr Camm also gave oral evidence that some of his compensation money had been spent on upgrading the flooring of the family home; he believed that “probably in excess” of $40,000 had been spent to purchase stock for his business and that amounts of $17,500 and $14,200 had been spent on machines for the business. He confirmed that about 12 months after he received his compensation payment, he purchased the factory for his business for the sum of $125,000, which was sold in 2011. Under cross-examination, Mr Camm clarified that the amount of $23,800 referred to in his statement of facts, issues and contentions as having been spent on “[a]lterations to house for safety reasons” in fact reflected an improvement to the house, as the TAC had paid for modifications.
Under cross-examination and in re-examination, Mr Camm confirmed that $28,000 of his compensation money was spent on stem cell treatment in China, which was not covered by the TAC, within about 12 months of receiving his compensation payment.
I turn again now to evidence concerning the business, in fact a business of both repairing and selling motorcycle disc brakes. Mr Camm gave evidence that the business commenced in 2000. Following separation from his then wife, who had provided secretarial support, the business employed a bookkeeper, for about a year.
It is convenient to note that this point that, save for copies of certain bank statements relating to a specific period to which I refer below, there was little if any contemporaneous documentary evidence before the Tribunal. In particular, there were no business records or tax records relating to the business before the Tribunal. As Mr Camm confirmed under cross-examination, he did not provide records about the business to Centrelink at any time, nor to the SSAT.
Although Mr Camm denied under cross-examination that the business generally made a profit, I note that it is recorded in a report prepared by Dr Ben Harris, a neuropsychologist, in August 2010, it was recorded as part of Mr Camm’s history that “he stated that he had been reasonably successful” in his business. Under cross-examination, Mr Camm said that that statement was correct merely in respect to the period before his accident. He confirmed under cross-examination that part of the reason for the decline in his business was the introduction of Chinese-made products into the Australian market, which occurred around 2007. I note that a job capacity assessment report prepared in March 2013 records him having stated at that time that he had been carrying on his business for 14 years “but imports are reducing his business”.
Mr Camm was cross-examined extensively about the few documents before the Tribunal relating to the business, being certain bank statements, particularly in relation to numerous transactions recorded in bank statements related to an account held in the name of the business, covering the period 1 January 2012 to 30 June 2014. Also in evidence were bank statements relating to an account held in Mr Camm’s name, covering the period 7 March 2012 to 5 September 2014. Under cross-examination, Mr Camm said that he also has a “streamline” account, but that he had not provided any statements about it; he said that the current balance of that account is about $130.
Under cross-examination, Mr Camm was unable to identify the nature of a number of the numerous transactions reflected in the statements for the business bank account, including transfers from the business account to his personal account, other credits and debits. He accepted that it was apparent from those bank statements that the business was still operating as late as April 2013, when a payment by Mercedes-Benz in the amount of $5,082 is recorded. Mr Camm accepted that his business had done work for Mercedes-Benz over the period of about a year, although he said “it was only about three” jobs, done by his friend (who was paid for his work), rather than by him.
I note that a Centrelink form completed by Mr Camm in May 2013 indicates that the business was still operating at that date.Furthermore, a payment for expenses of the business is recorded in September 2013, from which I infer that the business was still operating at that point. Mr Camm said that other deposits reflected payments of rent deposited by his tenants. Under cross-examination, he confirmed that the bank statements established that he was at least earning some income until the later part of 2013 and also confirmed that he had liaised with Mercedes-Benz with respect to the work his business did for that company. He was unable to recall when the business ended; he said that its equipment was then taken away for scrap.
In evidence before the Tribunal was a copy of Mr Camm’s tax return for the financial year ending 30 June 2011, which disclosed that his gross income was $48,118, while his net income after deductions from his business was $22,686. That was the only tax return of Mr Camm before the Tribunal. Furthermore, no income tax assessments of Mr Camm were before the Tribunal.
Medical evidence
I turn now to the medical evidence. In evidence before the Tribunal was a report of Dr Ben Harris, clinical neuropsychologist, dated 10 August 2010, who undertook a neuropsychological assessment of Mr Camm in July and August 2010 “for clarification of his cognitive functioning and input into his management”. In that report, Dr Harris stated:
“[Mr Camm] suffered a significant spinal cord injury and resultant paraplegia in the context of a motorbike accident in 2004. He has reportedly suffered from depression and anxiety since 2005, however, there have been particular concerns about [his] mental state over the past six months, culminating in significant marital difficulties at present. Neuropsychological assessment revealed mild to moderately reduced speed on information processing on more complex tasks. There was evidence of mild executive-level difficulties, including mild mental rigidity. Relatively preserved performances were noted in relation to intellectual functioning, attention, memory, language and visuospatial skills.
... [Mr Camm] presented ... as dysthymic in mood and at the session during which the cognitive testing occurred, [he] complained of moderate fatigue having stayed up most of the previous night working. As such, it is likely that low mood and fatigue had some significant impact on his performances. The major pattern of test performance was of very mild difficulties to neurologically non-focal cognitive domains. Such changes could well be accounted for by [sic] current mental state and fatigue at the time of testing, both of which are known to result in such non-specific cognitive weaknesses. It is also possible that Rodney sustained a closed head injury at the time of his accident, however, it is not possible to presently attribute some, if any cognitive change to this factor given the likely contribution by psychological factors. Certainly, it would seem that if any head injury occurred that it was mild in severity, on the basis of several factors, i.e. generally well preserved cognition at present, no signs of focal cortical disruption that can be seen in more significant head injury, [the applicant’s] report of a good cognitive recovery, and evidence that he has been able to successfully return to self-employment”.
In recounting Mr Camm’s history, Dr Harris noted that “[o]ver the past six to twelve months ... [Mr Camm] has been spending very large periods of time at his factory and there has been a significant concern in relation to his mental state” and that Mr Camm had reported that he had become very depressed, referred in that regard to an incident about which Mr Camm gave evidence to which I refer below.
Also in evidence before the Tribunal were medical reports prepared by Dr Peter Rodway (dated 23 June 2010), Dr Tom Elmany (dated 30 April 2011) and, most relevantly, by Dr Sheryl Lawson, consultant psychiatrist (dated 3 June 2011).
In her report, Dr Lawson reported Mr Camm’s history as recounted by him, particularly with respect to events around the time of his recent marital separation which were also recounted in Dr Harris’ report, as I have described; she recorded that Mr Camm told her that his business suffered at the time leading up to his marital separation. She also recorded that “[s]ince the separation [Mr Camm] reports significant depressive symptoms”. I note that Dr Lawson also recorded, after referring to the fact that Mr Camm was proceeding with arrangements for a financial settlement with his wife, Dr Lawson recorded that Mr Camm had told her that he “has a lot of assets, but little cash flow”.
Later in her report, Dr Lawson opined that “[a]t this stage, he presents with moderate depressive symptoms with associated alcohol and Valium abuse and nicotine dependence[...] I am concerned about his mental state prior to the separation, and cannot rule out a hypomanic or psychotic episode at that time”, apparently referring to the incident recounted by Mr Camm in his oral evidence to which I refer below.
Also in evidence before the Tribunal was a more recent report prepared by Mr Oliver Beadle, a clinical neuropsychologist, dated 31 May 2015. In that report, Mr Beadle noted that he has provided counselling support to Mr Camm since August 2014. He recounted Mr Camm’s relevant history, stating that he “appears to suffer from some persisting mild cognitive impairment including a reduced speed of information”, referring in that regard to two neuropsychological assessments, including that undertaken by Dr Harris to which I have referred.
Mr Beadle also referred to Mr Camm having “suffered from a persisting depressive mood disorder over the many years since his motorcycle accident”, which appeared to have varied over time, having deteriorated significantly following the breakdown of his marriage. He also noted that Mr Camm had described and been observed to have ongoing concentration and short term memory difficulties and trouble dealing with multiple issues simultaneously. He opined that “this pattern of cognitive impairment is likely to be as a consequence of his depressed mood state rather than a direct result of his brain injury” and further that “these cognitive deficits appear to have had a significant impact” particularly on Mr Camm’s ability to manage his own finances.
Mr Beadle also gave oral evidence and was cross-examined. He stated that he had not undertaken his own assessment of Mr Camm; his report was based upon their counselling relationship, which had been limited in duration. He clarified, in response to questions posed by the Tribunal, that he considered that Mr Camm’s brain injury and personal events in his life, particularly his divorce, interacted in their effect on his mental state, in that the former exacerbated the latter. Conversely, he opined that Mr Camm’s financial difficulties had an interactive effect, “making the mild cognitive impairment he has worse”.
Mr Beadle said that he had little difficulty establishing a therapeutic relationship with Mr Camm and that he understood that Mr Camm has had positive relationships with other psychologists in the past. He opined that it would affect Mr Camm negatively if he had less regular contact with his children and grandchildren.
Under cross-examination, Mr Beadle confirmed that his understanding that Mr Camm, as stated in his report, had “sustained a severe, traumatic brain injury” following his accident was based solely on a report prepared in 2006 to which he referred in his own report (which was not before the Tribunal) and on what he was told by Mr Camm. When taken to the latter portion of the passage of Dr Harris’ report which I have quoted above, Mr Beadle said that he agreed in principle with those comments, but that, in substance, there was in his view interaction between Mr Camm’s mild cognitive impairment and personal psychological issues.
Mr Camm gave evidence that, after his accident, he eventually returned to full-time work, but he took breaks for sleep in a room modified at his workplace by TAC. In examination-in-chief, Mr Camm agreed with his counsel that in 2010 his “mental state deteriorated quite significantly”. He explained that he started spending all his time at work, as Dr Harris reported, because he was “[j]ust losing track of time”. And said that he was “very hallucinogenic” during an incident when he collapsed at work at around that time. Mr Camm gave evidence that was not able to say whether his business ran at a profit or a loss in the 2012 income year because his “thought patterns ... were not quite right around that time”. Under cross-examination, Mr Camm confirmed that he experienced psychological symptoms around the time his marriage broke down, but that, after a three-month break, he again returned to work.
Mr Camm said that his mental state had improved in comparison with his state in 2010, as he was “feeling a lot more confident about the future” and had now reconciled himself to the end of his marriage. In answer to a question posed by his counsel, he said that he was “stressed” about his financial circumstances.
SUBMISSIONS
It was not in dispute that the preclusion period applies and that its commencement date and length has been properly calculated. Rather, as I have said, the issue in this proceeding is whether the circumstances of this case constitute “special circumstances for the purposes of s 1184K of the Act and whether the Tribunal should exercise the discretion under that provision.
Shortly stated, Mr Camm submitted that the following circumstances existed and in combination constituted such “special circumstances”:
(a)he suffered an unexpected decline in his mental health in about 2010 that, combined with his brain injury sustained in his motorcycle accident in 2004, has had a severe impact on his overall functioning and decision making abilities;
(b)there are compelling reasons why he should not be expected to sell his house (particularly being that it has been modified for his needs, is close to his family, medical practitioners and carers, and that he had made bona fide attempts to sell his property and rent out spare rooms in the house without success);
(c)he suffers from severe financial hardship;
(d)that hardship was not caused by unreasonable spending of his compensation payment;
(e)his marital breakdown in 2011 and execution of the financial agreement in 2012 constituted an “unforeseen change in his circumstances” and were “extremely damaging” to his mental health and financial situation.
CONSIDERATION
I turn now to question of the application of s 1184K of the Act. After carefully considering the evidence before the Tribunal in its totality, I have concluded that the circumstances of this case do not constitute “special circumstances” for the purposes of s 1184K of the Act. Accordingly, the statutory discretion is not enlivened. Even if it were, I do not think it is “appropriate” for the purposes of that provision to exercise the discretion.
In summary, Mr Camm’s submissions were required the drawing of inferences which the Tribunal is not satisfied ought to be, or were open to be, drawn based on the evidence before the Tribunal. I now address Mr Camm’s first submission. Given the lack of contemporaneous medical evidence about the extent to which Mr Camm suffered a brain injury in 2004 and also the lack of any evidence as to whether his compensation payment was directed to any extent to such an injury, I do not consider that the existence of special circumstances is precluded on the basis that Mr Camm’s compensation payment encompassed compensation for an injury reflected in a subsequent deterioration in his mental health, as the evidence before the Tribunal is not sufficiently probative to reach a conclusion one way or another on that point.
I infer from the medical evidence before the Tribunal and also from Mr Camm’s oral evidence that Mr Camm did suffer a deterioration in his mental health immediately prior to and following his marital separation. However, I also infer that that deterioration was limited in duration and that Mr Camm’s psychological state later improved, so that he was able to return to running his business after a few months.
I note that Mr Camm sought to rely upon a report prepared by a job capacity assessor dated 21 March 2013, in which it was concluded that Mr Camm’s depression had a severe functional impact on his mental health, thus warranting an assignment of a rating of 20 points on that account under the Impairment Tables relating to the qualification criteria for DSP. However, it is apparent from that report that it is merely a file assessment, based in that respect upon the assessor’s consideration of Dr Lawson’s report to which I have referred (and also apparently the reports of two general practitioners).
The job capacity assessment report does not of itself constitute medical evidence (see Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2013) 138 ALD 180) and therefore, leaving aside any criticism that might be made of the assessor’s conclusion and the fact that it appears to refer to material not in evidence before the Tribunal, it does not cause me to alter my conclusion that the deterioration in Mr Camm’s mental state at around the time of his marriage breakdown was of limited duration.
I accept that, as Dr Harris stated in his report, it is possible that Mr Camm sustained a head injury as a result of his accident but that psychological factors relating to his marriage breakdown were likely to have contributed to his mental ill-health at the time that report was prepared. I note that I prefer the report of Dr Harris over the evidence of Mr Beadle, given that it is more contemporaneous and also is based upon an assessment of Mr Camm’s condition, while Mr Beadle’s conclusions arise in the context of a counselling relationship. In any event, the evidence of Dr Harris and Mr Beadle establishes that, to the extent that Mr Camm suffers from any cognitive impairment as a result of his accident, it is of a merely mild degree.
More to the point, I am not satisfied based on the evidence before the Tribunal that either Mr Camm’s temporary deterioration in his mental health around the time of his marriage breakdown, or the mild cognitive impairment to which I have just referred, affected Mr Camm’s general circumstances detrimentally in the manner for which he contended. In particular, I do not accept his submission that “[t]his manifested particularly in the way [he] ran his ... business” and that “[a]lthough the business struggled after [his] injury, its demise accelerated markedly from 2010”. That submission is founded essentially on assertions of fact, rather than on sufficiently probative evidence; based on the evidence before the Tribunal, I am not satisfied that the deterioration of Mr Camm’s mental condition at around the time of his marital breakdown had anything more than a temporary effect on his conduct of his business.
Most fundamentally, there was a paucity of documentary evidence about the business and its financial affairs which might serve to establish what the profitability of the business at any point following Mr Camm’s injury. The only document which might bear on that question which was before the Tribunal was Mr Camm’s personal tax return for a single financial year. However, as I have said, there were no business records before the Tribunal.
The bank statements before the Tribunal which, as I have indicated, related to a limited period of time, establish that Mr Camm was carrying on business, transacting with commercial organisations including one as large and established as Mercedes-Benz and also with suppliers, into the latter half of 2013. Those bank statements contain numerous transactions and, save for an apparent tendency to mix his business and personal affairs, there is nothing on the face of the bank statements to suggest that Mr Camm’s ability to carry on business was impeded in any way. In any event, on his own evidence and based particularly upon his more contemporaneous statement in that regard, Mr Camm’s business ultimately failed because of market factors.
Nor am I satisfied that the deterioration in Mr Camm’s mental state at around the time of his marital breakdown rendered him “unable to negotiate a property settlement to better protect his financial interests”. At the respondent submitted, Mr Camm received independent legal advice with respect to that financial agreement. Moreover, that submission is apparently founded on a related submission that the terms of that financial agreement “left [Mr Camm] in dire financial straits, with insufficient funds to set out the preclusion period”. I return to the latter submission shortly.
It is convenient at this point to address Mr Camm’s submissions concerning his financial circumstances. While his submissions were focussed on matters such as the amount of family tax benefit and rent Mr Camm currently receives, his reliance on assistance from charities, the low credits in the bank accounts to which I have referred and his debts, I accept the respondent’s submission that much remains unknown about Mr Camm’s financial circumstances, given the extent of unexplained transactions in the bank accounts to which I have referred (particularly unexplained deposits), and the fact that there were no bank statements before the Tribunal relating to another bank account Mr Camm apparently holds.
While it is possible that Mr Camm’s inability to explain the transactions might be attributable to the mild cognitive impairment to which I have referred, it remains the case, as the respondent submitted, that the evidence of significant sums of money moving in and out of Mr Camm’s bank accounts is inconsistent with his submission that he is in severe financial hardship. As the respondent submitted, after his marital separation, Mr Camm continued to work and generate income from his business, with additional income from tenants, the sale of personal items and family tax benefit payments, as his bank statements establish.
Mr Camm’s inclination to await a more attractive offer for his home is similarly inconsistent with his submission that he is in severe financial hardship, but I return to that issue later in these reasons.
I turn at this point to Mr Camm’s submission that his contended financial hardship was not caused by unreasonable expenditure of his compensation payment, while conceding “that he cannot entirely account for how the compensation funds were spent”. I accept the respondent’s submission that Mr Camm has not adequately accounted for how his compensation payment was spent. The relevant evidence before the Tribunal in that regard was inadequate and highly contradictory.
I find, based on the record of the Mr Camm’s phone call to Centrelink and also on the terms of the financial agreement, that his compensation money was fully expended prior to the execution of that agreement. I also find, based on those terms, that an indeterminate proportion of that payment was spent on paying off the mortgage on the home now owned by Mr Camm. However, given particularly that, as the respondent pointed out, both Mr Camm and his wife were working following receipt of that payment, I do not accept that, as indicated in the terms of that agreement, the balance of the compensation payment was spent to financially support his family, particularly given the absence of corroborating evidence.
Furthermore, I do not accept Mr Camm’s uncorroborated evidence that his then wife withdrew his compensation money without his knowledge or consent and then spent it. I note in that regard that that allegation was made for the first time before this Tribunal. Furthermore, it is contradicted by Mr Camm’s more contemporaneous statement to Dr Harris in 2010 that he had “not wasted his TAC payment”, which suggests a less passive involvement in its expenditure than suggested by Mr Camm before the Tribunal.
I note in passing, given that the inference sought by Mr Camm involved an allegation of impropriety against his former wife, that the Tribunal is not bound to apply the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 when coming to a decision (Sullivan v Civil Aviation Safety Authority (2014) 141 ALD 540) but, in any event, as Middleton J said in Bell IXL v Life Therapeutics (2008) 68 ACSR 154 at [22] with respect to that principle, “the essential task always remains of looking at the evidence in its totality” and according to the balance of probabilities.
As I have indicated, Mr Camm submitted that the breakdown of his marriage, and particularly the terms of the financial agreement, constituted an unforeseen change in his circumstances and were “extremely damaging”, relevantly at this point, to his financial situation. In substances, he submitted in that regard that the terms of the financial agreement were prejudicial to Mr Camm’s financial circumstances, as it left him without funds for the balance of the preclusion period and because he lost the benefits of his wife’s income (in the amount of about $600 per week), which had previously been a pooled resource, so that he was left in “dire financial straits”. He also pointed to the fact that the proceeds of the factory sale transferred to his wife derived originally from his compensation payment and referred in that regard the term of the agreement by which Mr Camm agreed that the balance of a loan made by him and his wife to her parents (in the amount of $33,800) was to be paid to her.
Having considered the terms of the financial agreement in their totality, I do not accept Mr Camm’s submissions in that regard. The financial agreement was made with acknowledgement both of the fact that Mr Camm remained subject to the preclusion period and that his compensation money had been fully expended. As the respondent submitted, the financial agreement had the effect that Mr Camm became the sole registered proprietor of the family home upon payment of the sum of $25,000. It also had the effect that his wife relinquished her interest as partner in the business. As anticipated, Mr Camm continued to conduct the business after the execution of that agreement. I accept the respondent’s submission that the terms of the financial agreement did not favour Mr Camm’s wife.
Nor do I consider that the fact of Mr Camm’s divorce of itself gives rise to special circumstances, as is well-established by previous decisions of this Tribunal.
Furthermore, Mr Camm’s submissions were effectively predicated on the assumption that his sole ownership of his house should not be taken into account in considering his financial circumstances. I have concluded on the basis of the evidence of the Tribunal that his ownership of that house cannot properly be so disregarded, as I do not accept that there is any real impediment to its use to meet Mr Camm’s living expenses for the balance of the preclusion period, either by being used appropriately as a source of rental income or by Mr Camm selling the property and buying a smaller property in the local vicinity. I accept the respondent’s submission that Mr Camm cannot be considered to be suffering financial hardship of the kind contended by him given that he holds a valuable, unencumbered and realisable asset.
It is open to Mr Camm to rent two of the four bedrooms in the house to tenants paying commercial rates, at least for the balance of the preclusion period; the payment of rent can be secured by arranging a bond. While I have taken into account the unfortunate incident involving a former tenant, I infer from the evidence that that tenancy formed part of a wider pattern of tenancies based on pre-existing personal relationships, which is resulting in a current tenancy which on Mr Camm’s evidence is not based on market rental rates.
Furthermore, it is alternatively open to Mr Camm to sell his current home, which is surplus to his needs, and move to a smaller home in the local vicinity, to maintain his existing support networks. Mr Camm’s submissions are based to some extent on a false premise that he will be forced to move far away. I do not accept that Mr Camm has made serious inquiries in that regard. Nor is there credible evidence before the Tribunal that the offer made to him for his house was inadequate. The evidence ultimately revealed that he merely prefers to wait until he receives a better one, which as I have indicated, weighs against a conclusion that he is suffering the contended financial hardship.
I am not satisfied in the absence of corroborating evidence that the TAC will not fund modifications to a new home, as the seven-year period to which Mr Camm has referred has elapsed some time ago. In any event, I accept the respondent’s submission that the modifications to Mr Camm’s current home are not substantial and therefore could be covered by the proceeds of the sale of his current home while leaving sufficient funds available to him, if he chose that course.
As I have said, I am therefore not satisfied that the circumstances of Mr Camm’s case constitute “special circumstances” for the purposes of s 1184K. While his circumstances are unfortunate and deserving of sympathy, they do not in my view meet the statutory meaning of that expression. I have noted the various authorities relied upon by the parties, and their submissions by which they sought to distinguish those relied upon by the other but, as I have indicated earlier in these reasons, it is relevant in the context of s 1184K to bear in mind the general principle that “[e]ach case turns on its facts and it will rarely be appropriate to try to reason on the basis of factual analogies” (Amaca Pty Ltd v Frost [2006] NSWCA 173 at [20] per Spigelman CJ, Santow and McColl JJA agreeing).
In any event, as I have said, I do not consider that it would be “appropriate” to exercise the discretion in s 1184K in favour of Mr Camm even if his circumstances did constitute “special circumstances” for the purposes of that provision.
To the extent, albeit indeterminate, that Mr Camm’s compensation payment was used to pay off the mortgage on the house he now owns, the exercise of the discretion in the circumstances of this case would defeat the legislative intention of preventing “double payment” manifested by the provisions of Part 3.14 of the Act to which I have referred.
Furthermore, as was observed by Sheppard J in Director-General of Social Security v Hales (1983) 47 ALR 281 at 321, the “legislation provides for the payment of a variety of benefits to different classes of people who will usually have one thing in common; they will be impecunious and in straitened circumstances”. As was observed in Smith, the imposition of a preclusion period together with s 1184K serve to strike a fair balance as between the interests of the recipient of a compensation payment and other social security recipients, given the finite public funds available to meet their needs.
In circumstances such as these, where I have concluded based on the evidence before the Tribunal that Mr Camm is asking for the discretion under s 1184K to be exercised in his favour while acting according to his preference to await higher offer for his home and an apparent inclination to take in tenants based on factors other than the best provision for his own upkeep, I do not consider that would be appropriate to exercise that discretion in his favour. That is so despite the unfortunate events Mr Camm has suffered, for which the Tribunal has sympathy.
CONCLUSION
For the above reasons, the decision under review will be affirmed.
I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of Deputy President F J Alpins. [sgd]........................................................................
Associate
Dated 26 February 2016
Date of hearing 19 August 2015 Date final submissions received 30 September 2015 Counsel for the Applicant Ms A Wong Solicitor for the Applicant Mr G Wells, Social Security Rights Victoria Advocate for the Respondent Ms K Latta Solicitors for the Respondent Sparke Helmore
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