Secretary, Dept of Social Security v Lee

[1996] HCATrans 372

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S149 of 1996

B e t w e e n -

SECRETARY, DEPARTMENT OF SOCIAL SECURITY

Applicant

and

PATTI-MAE LEE

Respondent

Application for special leave to appeal

BRENNAN CJ
TOOHEY J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 2 DECEMBER 1996, AT 12.20 PM

Copyright in the High Court of Australia

MR P. ROBERTS:   If the Court pleases, for the applicant.  (instructed by the Australian Government Solicitor)

MR M.B. SMITH:   If your Honours please, I appear for the respondent with MR J.D. FITZGERALD.  (instructed by the Welfare Rights Centre)

BRENNAN CJ:   Yes, Mr Roberts.

MR ROBERTS:   Your Honours, the majority in the court below in effect, in reaching their decision, said that they were building upon the edifice of the majority decision in Esber in coming to the conclusion that the respondent had an accrued right.  This case brings into question whether the majority engaged in a legitimate building exercise in doing what they did and also examines whether the foundation stone of the majority decision in Esber is a strong foundation for building the right which was said to exist.

If I could just briefly remind your Honours of the context of the case which was before the Full Court, the Social Security Act had a provision in relation to the waiving of debts which were found to be due and owing.  Prior to the relevant amendments there was a wide discretion to waive the debt.  The amendment narrowed the discretion considerably.  Ms Lee ‑ ‑ ‑

GUMMOW J:   But there have been further amendments, have there not?

MR ROBERTS:   There has been an amendment which does not affect the Act at all and there is a Bill at the moment before Parliament, a part of which is aimed in effect to remedy the situation in this particular instance.  But of course, the application of this decision is extremely wide indeed.  It just does not only relate to the Social Security Act; it relates to the whole gamut of federal legislation and, indeed, State and local government.

BRENNAN CJ:   Let us understand the statutory provision first of all.  There is the 1993 Act which made the relevant amendments, is that right?

MR ROBERTS:   Could I draw your Honour’s attention to page 7 of the application book, which is probably the easiest way to look at the Act.  Page 7 is the amended section 1237 and page 8 is the prior to 1993 position.  So, if one goes to page 8, one will see what the provision was prior to the amendment.

BRENNAN CJ:   Are the provisions on page 7 still in force?

MR ROBERTS:   No, they are not.

BRENNAN CJ:   Then why should we grant special leave?

MR ROBERTS:   Because the amendment that has taken place in relation to this relevantly does not affect this case at all at the moment.

BRENNAN CJ:   It might not affect this case, but why should we grant special leave?

MR ROBERTS:   The point, your Honour, that we raise has extremely wide ramifications for all federal and State statutes at all levels.  It is not just a case that is peculiar to the Social Security Act.  The argument that was successful in Patti‑Mae Lee was raised in the context of the Migration Act in the case to which I referred your Honours which was recently heard by another bench of the Full Federal Court.  That is the decision of Dai Xing Yao.  There have been a number of decisions in the Administrative Appeals Tribunal relying on Patti‑Mae Lee in various areas.  I have brought one example if your Honours ‑ ‑ ‑

BRENNAN CJ:   But is not the proposition this, Mr Roberts:  first of all, section 1237 has now been repealed by the 1995 Act and a new set of provisions has been inserted, and then the Esber Case is treated as being a case which turns upon the situation at the time when an application is made, as distinct from the time when the application is decided.  Where do we need to go beyond that fact in granting special leave to consider some further point?

MR ROBERTS:   The effect of the majority decision is to extend Esber into an area which previously has never been recognised as conferring a right on a person.  Here there was no application before any tribunal.  What happened was that the initial decision maker decided to make a decision to reclaim the amount that was owing, and under the legislation there was a right to go for internal review to another decision maker.  The day after Ms Lee lodged an application for internal review, the Act was changed.  That was the factual context.

In Esber’s Case it was critical, so the Court said, that an application had been lodged with the AAT.  This was critical in a determination that a right under section 8(c) existed.  Here there was no such application at all and, of course, the type of situation in Esber was a situation where the person had a right to have the discretion exercised in his favour to redeem his weekly benefits, provided certain matters were found in his favour.  Here there is a bare discretion to waive or not waive the debt that was owing.  Under the former legislation it was an unfettered discretion except by the terms of the statute generally.

Esber, we respectfully submit, certainly is not an authority for the decision that the majority of the Full Court came to in this case.  They have purported to build upon Esber and apply it to a case involving a bare discretion.  There is no transitional legislation as there was in Esber’s Case and they have said that the right accrues from the time that the person asked for an internal review.

GUMMOW J:   One may, speaking for myself, see a lot in the dissenting judgment of Justice Davies, but that does not mean that we grant special leave.

MR ROBERTS:   No.  I am endeavouring to suggest to your Honours that this case has wider ramifications, is not something special ‑ ‑ ‑

GUMMOW J:   If it does have wide ramifications, it is best dealt with in a case that comes up under a live Act.

MR ROBERTS:   The Act still is live, with respect, because the amendments do not make any difference to this particular case at the moment.

GUMMOW J:   Maybe.  You know the sense I am using that, Mr Roberts.

BRENNAN CJ:   You are speaking about the generality, the importance of the case generally.

MR ROBERTS:   Yes.

BRENNAN CJ:   What Justice Gummow has put to you is that you get those general issues resolved best when you have an Act that is on the books.

MR ROBERTS:   Well, I am submitting that the Act still is on the books.  There may be a Bill before Parliament which would change the ‑ ‑ ‑

BRENNAN CJ:   No, the 1995 Act.

MR ROBERTS:   But relevantly that does not change the situation about the ‑ ‑ ‑

BRENNAN CJ:   It changes 1237.

MR ROBERTS:   True, but it does not relevantly cut in in relation to the problem which we are addressing here; the situation is the same.

BRENNAN CJ:   If the appeal was successful here, what would be the order?

MR ROBERTS:   The decision below would be set aside and the position would remain that there was an exercise of discretion to write off part of the debt and to - I think the order was that she repay $15 a week in relation to part of the ‑ ‑ ‑

BRENNAN CJ:   Under what statute would that order stay?

MR ROBERTS:   Under the 1993 amendments that order was made.

BRENNAN CJ:   That order was made by whom?

MR ROBERTS:   By Justice Mathews sitting as the Administrative Appeals Tribunal.  The respondent here was partially successful in that her Honour in the AAT exercised the discretion which was said to exist to write off part the debt.  She said she could not waive the debt because of the amendments but she wrote off part of the debt.

BRENNAN CJ:   What I am trying to get to is this:  if at the end of the day you are completely successful, would there have to be a reconsideration of the merits?

MR ROBERTS:   No, not at all.

BRENNAN CJ:   Not at all?

MR ROBERTS:   No.

BRENNAN CJ:   Whose order would prevail?

MR ROBERTS:   Justice Mathews’.  It is purely a legal question now and the ramifications, we submit, are fairly clear.  They must apply in all cases where there is a change in legislation and the question comes up whether section 8(c) applies or its State equivalents in States that have equivalent provisions, which I think is all of them - certainly New South Wales is an almost exactly worded section in the Interpretation Act.  So this will apply Australia‑wide.  It just does not have unusual features of the Social Security Act; it has wide ramifications for all decisions, local government and State.

What the majority of the Full Court has done is to create a right which previously has been unrecognised in any court.  It is a novel proposition, we would submit, that a right comes to exist merely because the statute provides for internal review of a decision.  The features in Esber’s Case which may well have led to the decision of the majority in Esber were not present in this case.  It is a long extension from Esber to get to the majority view in Patti‑Mae Lee.  Indeed, the Full Court in the later case, the immigration case, when it came to consider an argument that was put to it, has commented, we would submit, unfavourably in relation to the Patti‑Mae Lee Case, but they did not have to decide.  So it is still there in force and is being applied ‑ ‑ ‑

GUMMOW J:   That is the joint judgment in the immigration case, is it?

MR ROBERTS:   Of the Chief Justice and Justice Sundaberg.

GUMMOW J:   How did Justice Davies approach the matter with reference to Patti‑Mae Lee’s Case?

MR ROBERTS:   Justice Davies did not say anything about the Esber argument.  He was able to deal with it without ‑ ‑ ‑

GUMMOW J:   That is what I thought, yes.

MR ROBERTS:   But it certainly is a live issue; there is absolutely no question about that.  We would say it is purely a legal issue, it is one that has ramifications, and the fact that there has been an amendment or a proposed amendment really does not make any difference to the legal issue.  This is a suitable case because Patti‑Mae Lee will be applied.  There are a number of decisions in the AAT at the moment awaiting the outcome of this application, particularly under the Social Security Act.  But the case is a live issue; it is not changed at all because of a Bill that is presently before Parliament.  That may remedy the situation in one Act.

BRENNAN CJ:   I suppose another way of looking at it is that the 1995 Act compounds the problem.

MR ROBERTS:   That might be right.  So, we would submit that really this is the most suitable case for the High Court to reconsider to see if there is this ‑ ‑ ‑

TOOHEY J:   To reconsider what?

MR ROBERTS:   The decision in Patti-Mae Lee.

TOOHEY J:   Because one of your grounds of appeal is an attack on Esber itself.

MR ROBERTS:   That is so.  A question arises of precisely what was meant in Esber by the majority.  I put a submission here of one interpretation which, if correct, would mean that there is no conflict at all between what we are putting.  But on another view, if, in Esber, was pioneering, in effect, and changing the situation, if that was the intention of your Honours who constituted the majority, then we would seek leave to reargue that matter but it is a question, really, of what was intended by - - -

TOOHEY J:   On Justice Davies’ approach, that would not arise, would it?

MR ROBERTS:   That is so.

TOOHEY J:   In other words, the decision is distinguishable from this one?

MR ROBERTS:   Clearly, it is distinguishable.  It is completely different from Esber, we would say, and one just could build upon the foundation of Esber but a question remains of precisely what Esber is authority for, and there is some dispute in relation to that.  We could certainly succeed without having to reargue Esber but it may be that the Court would feel that some reconsideration should be given or, at least, to considering anew the questions which your Honour the Chief Justice raised in dissent in Esber which did not seem to be addressed and it may be because the majority felt that it was unnecessary to address those questions to achieve the result because of the nature of the particular proceedings before the AAT, combined, of course, with the transitional provision which seemed to be very important in case.  Again, it is clearly a question which may arise in the running and that is why I have sought to raise that point.

In my submission, the case before your Honours is clearly a very important case for administrative law.  It has wide ramifications and we submit that it really is a case that should be dealt with by your Honours to elucidate what Esber is all about and to instruct the lower courts and to rectify the problem, as we see it, in Patti-Mae Lee.  I think I have finished, thank you, your Honours.

BRENNAN CJ:   Yes, Mr Smith.

MR SMITH:   Your Honours, the special leave concern has to be the effect of an application of Esber’s Case, that is, whether, in a person of Mrs Lee’s circumstance, section 8 Acts Interpretation Act applied.  The further question whether the 1993 amending Act showed a contrary retrospective intention is purely academic, in my submission, or so unimportant now, as a result of the amendments and changes in social security law, so as not really to warrant special leave.

The 1995 amendments completely repealed the previous transitional provision, that is, the transitional provision that accompanied the 1993 amendments which were subject to a difference of opinion, your Honours will recall, between the majority, on one hand, in our case, and Justice Davies and Justice O’Loughlin on the other hand.  That was completely repealed.  The 1995 amendments contain a transitional provision in different language.  If your Honours have that legislation; it was the social security legislation, Carers’ Pension And Other Measures Act.  Unfortunately, I only had the Bill but it was, I am instructed, passed as introduced in Parliament.  Your Honours will see at page 25 of that legislation there is a completely new section 1236A which is the transitional provision that accompanied the 1995 amendments and your Honours can compare that with the previous transitional provision which was set out at page 8 of the application book.  It contained further language in relation to subsection (1) is completely new and opens up the whole question as to whether the majority in our case’s interpretation of the previous transitional provision is directly applicable to this transitional provision.

The other important different that goes both in law and in practicalities was that - - -

GUMMOW J:   You are being a little fast for me, Mr Smith.  So, what do you say flows from the new 1236A of 1995?

MR SMITH:   The previous one only contained words to the effect or in the form found in subsection (2) of that provision, so the provisions in subsection (1) were new provisions in a transitional provision, or compared to the 1993 transitional provision, and one can see that they would give rise to a separate and new argument that they show retrospective intention in relation to these amendments.

GUMMOW J:   But 1236A, not having been in play before the Full Court in this litigation, this present litigation?

MR SMITH:   It was not in issue in the Full Court, no.  They were informed of the amendments but thought they were not relevant.

GUMMOW J:   If we were to make an order on this appeal, will not a new 1236A of 1995 have any impact on the disposition of the appeal here?

MR SMITH:   Not here or in the court; it may raise a new argument, because the matter has been remitted back to the AAT, and we may then face an argument as to what has been the effect of these transitional provisions on the remitted matter.  We would also face - and I will come to this in a minute - a question:  if the Bill currently before Parliament is assented to, it undoubtedly has retrospective intention and if those amendments commenced before the matter was determined on remitter to the AAT then, plainly, my client would have to satisfy the new provisions.  But they are, as my friend says, not at present in front of Parliament.  They have a commencement date in October next year.

The other provision of the 1985 amendments I was seeking to draw your Honours’ attention to was the practical effect which was the drastic effect of the 1993 that Mrs Lee’s case was seen as a useful test case for, removed all discretion.  That was part of the decision below which we would not be seeking to challenge.  The 1995 amendments reinserted a power to waive, in special circumstances - defined, but in special circumstances. 

GUMMOW J:   That is 1237; a new 1237, was it?

MR SMITH:   No.  Well, it is found more particularly at 1237AAD, found at page 30.  That was seen and, indeed, had the effect of very largely, for many cases or, if not, a great deal of the cases that would have previously enjoyed the unfettered discretion as picking up their circumstances, and so the 1995 amendments were a rebroadening, reopening of the discretionary element and therefore, in effect, everyone that was screaming between 1993 and 1995 found - most of those people found that they could enjoy or seek the benefits of the 1995 amendments and so there are very few cases now outstanding where this question of the retrospective effect of the 1993 amendments has any practical significance.

TOOHEY J:   Because the argument that Mr Roberts raises is that the decision of the court below has implications beyond the particular language of this statute or the language of this particular statute.

MR SMITH:   Yes.  If I can move on to that point then, whether, notwithstanding, as it were, the academic nature of that point in the appeal, your Honours should grant special leave, in my submission, there is no sufficient doubt about how the majority applied Esber’s Case, that is, the majority in Esber.  Contrary to my friend’s submission, Esber’s Case was a case where the power under review was seen by the majority to contain a discretionary element.  I can take your Honours to the judgment in Esber in this respect.

TOOHEY J:   But there is a point of distinction, is there not, in relation to the making of the application?

MR SMITH:   The only point of distinction, yes, is that in Esber the proceeding that was on foot at the time of the amendment was the lodgment of an application, or that is how the majority dealt with it.  In fact, no application had been lodged and after the amendment there was an application for extension of time, if your Honours will recall.  But the majority dealt with it on the basis that that had the effect of meaning that an application to the AAT had been lodged before the amendment and the majority considered and approached it on the basis that notwithstanding that the primary decision involved a discretion, the correct analogy was the analogy of someone with a right of appeal in litigation, notwithstanding, and in that, they were quite clearly not accepting propositions that his Honour Justice Davies had put below in Esber and which your Honour the Chief Justice put in your Honour’s dissenting judgment.

So that analogy became the key to their Honours’ reasoning and they said it did not matter, it was analogous to the cases where it was held that someone had a right that was picked up by section 8, in litigation that they had commenced.  If the majority was right in that analogy and accepting that analogy, then it does not matter that the right of appeal has not been exercised yet at the time of the amendment, if the litigation itself was on foot and the authorities, in my submission, clearly show that, including the authority in the Privy Council cited by the majority when referring to the analogy.

So that further step of saying in the present case that the majority took that the exercise of a statutory right of review on the merits by a review officer who was going to perform exactly the same function as the AAT would perform if she then exercised her contingent rights to further appeal up the statutory ladder to the SSAT and then the AAT, in my submission, was fully in accordance with that analogy that had been accepted by the majority in Esber and, in my submission ‑ ‑ ‑

BRENNAN CJ:   Is that right?  In the Esber Case the AAT was a repository of its own power to review a decision made by the primary decision maker.  Here the review officer is no more, as I understand it, than another delegate of the Secretary to make a decision.  In other words, it is the same power exercised by the same repository through different delegates.

MR SMITH:   With respect, under the current scheme the review officer is set up as exercising an independent function of review, not just reperforming the first instance decision, but set up, in my submission, in exactly the same function as the AAT, and so too is the Social Security Act.

BRENNAN CJ:   Where does the review officer get his powers from?

MR SMITH:   A separate provision.

BRENNAN CJ:   To set aside decisions of the Secretary?

MR SMITH:   Yes.  It is a right of appeal to a review officer or the Secretary that is given under section 1240.  The Secretary on application, so:

(1)  A person affected by:

(a)  a decision of an officer under this Act.....

may apply to the Secretary for review of the decision.

That is also given to - or the person that exercises that power is known as a review officer.

BRENNAN CJ:   Who is the primary decision maker - an officer?

MR SMITH:   Yes.

BRENNAN CJ:   Where does that officer derive power from?

MR SMITH:   The statute, in a multitude of provisions that give the powers under the Act.

BRENNAN CJ:   As delegate?

MR SMITH:   As delegate of the Secretary, yes.

BRENNAN CJ:   So this is a review by the Secretary from a decision made by the delegate of the Secretary?

MR SMITH:   Yes.

BRENNAN CJ:   That is not quite the same as an appeal to the AAT, is it?

MR SMITH:   Well, the power that the Secretary exercises when that statutory review has been exercised is the same thing that the AAT does under section 43 of the AAT Act.  That is, the AAT under section 43 is told that for the purpose of exercising a decision:

the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision ‑ ‑ ‑

BRENNAN CJ:   That is, that the AAT is a secondary repository of the power.

MR SMITH:   Or tertiary in the case of these ones because there is a ‑ ‑ ‑

BRENNAN CJ:   No, secondary.  In other words, once you have the original power being vested in the Secretary who may delegate its exercise, you then have a review internal to the Secretary or to some other delegate - review officer perhaps who exercises the same power - but, once it goes to the AAT, the AAT exercises its power expressed in the terms that are to be found in section 43.

MR SMITH:   If I can read to your Honours section 1243, which is the vesting of the powers of the Secretary and authorised review officer, who has a separate statutory function.  These appeals can either go to the Secretary in person, though query “in person”, or an authorised review officer.  Subsection (1) says:

If an application for review of a decision is made under subsection 1240(1) -

that is the right of appeal that Mrs Lee exercised -

the Secretary or an authorised review officer must:

(a)  affirm the decision; or

(b)  vary the decision; or

(c)  set the decision aside and substitute a new decision.

Then there is a provision saying in relation to a particular species of power the authorised review officer may not exercise that particular power, and then there is notice of the decision.  So, in my submission, that function given of statutory review to the Secretary and authorised review officer is relevantly indistinguishable with the function of administrative review which the majority in Esber’s Case saw as giving an accrued right to have that appeal performed according to the law that was applied by the primary decision maker unless an amending Act showed a contrary intention.

In my submission, that being the effect of Esber, it is only a very small step and a rational and, in my submission, appropriate step for the majority to say that at lower steps down the ladder, the person having a contingent right if the review officer finds against her in the exercise of power, that when she gets to the AAT she will enjoy indeed the accrued right that was found in Esber.  So, in my submission, the extension that there was - and it was only that extension in the majority in the present case - was a small step and in the context of the academic nature of the amendments and the transitional provisions that the Court would have to address - and in these cases on transitional provisions it is all on retrospectivity.  Whether there is an accrued right is only the first step.  There is always the question of what is the implication and context of the 1993 amendment, and your Honours would not be able to avoid that and that indeed would become the broader and murkier issue for the High Court if special leave were given.

I have dealt with two grounds for submitting that special leave should not be granted.  The third is a - I am reminded that my friend’s suggestion that the broader principle has ramifications beyond social security legislation, if indeed it all turns - the case turned on what was the nature of the power given to a review officer or the Secretary under the Social Security Act, as to whether that provided a proper distinction with Esber, then indeed we have not got beyond social security law, we have not got into broader questions of other types of powers of reconsideration or internal review, whether or not they are part of an AAT appeal structure.

Coming to the third, and it is in one sense a minor ground of opposition to my friend’s application, it is the effect of the 1996 Bill which indeed, as my friend says, contains a transitional provision which undoubtedly would pick up the presently amended law or the law as amended after the appeal provisions going back over years, including as amended after the 1993 amendments or with and after the 1993 amendments.  Those provisions, if this matter were still outstanding in the AAT on 1 October - that is, if your Honours granted special leave, heard the appeal, it then has to go back to Justice Mathews to consider the merits of

the exercise of a discretion to waive unless there is some assurance that that could all be done and Justice Mathews produce a decision before 1 October, then my client would have lost by reason of the 1996 Bill, assuming it is passed - and I am unaware of any controversy over this particular part of this Bill - the right that all the litigation has been over.

TOOHEY J:   I suppose there is that prospect plus the uncertainty in which she will find herself if the Court granted special leave until it was known when the court dealt with the matter, what the outcome was and where that stood in relation to the current state of legislation.

MR SMITH:   Yes, and although my client’s case was chosen, as it were, as a test case, one of the unfortunate things was that it was chosen as a test case because my lady had a distressing situation that accounted for her incurring the overpayment relating to an illness that, under the old discretion, appeared to cry out for the exercise of discretion.  But hers is a case where that circumstance in itself would suggest that an exercise of a waiver rather than a right of power would have been an appropriate discretionary exercise if the tribunal had that power in the first case.  If your Honours please.

BRENNAN CJ:   Mr Smith, when you say it was chosen as the test case, does that mean there were arrangements made with respect to costs?

MR SMITH:   There have been at this point in the litigation, not previously.

BRENNAN CJ:   Thank you.  Yes, Mr Roberts.

MR ROBERTS:   A few points.  Chosen as a test case by my friend’s instructing solicitors, so all we are doing is to challenge the decision of the Full Court in that test case.  One important matter I wish to draw to your Honours’ attention is this.  The order of the Full Court - this appears on page 48 - is that “the matter be remitted to the Administrative Appeals Tribunal”, so there are all sorts of questions to arise if the matter is remitted in relation to the new legislation.  If we are successful of course, the matter would come to an end and, as I said before, Justice Mathews’ decision would be the end of the road.  But it is the order of the Full Court remitting the matter to the AAT that is going to further renew argument in relation to the intervening legislation.

TOOHEY J:   Do you say that if special leave were granted and you succeeded, there would be no further step to be taken?

MR ROBERTS:   Absolutely; that would be end, because Justice Mathews’ decision would be the decision that would operate and that would mean that, as I said before, the partial write‑off of some of the debt and the rest of it repaid at so many dollars per week.  That was the order that was made and that would stand.  It is the order of the Full Court that remits the matter for reventilation in the AAT.  So my friend’s argument of expediency in relation to changes in the legislation, with respect, stands the matter upon its head.  If a case cries out to be settled at this level, surely it is this very case.

TOOHEY J:   Would that be so, Mr Roberts, whatever the state of legislation was at the time this Court gave its judgment, assuming special leave were granted?  In effect, is there anything that would catch the respondent up in any changes that had been made to the legislation?

MR ROBERTS:   As a matter of argument, I suppose, how they affect the respondent, whether the 1996 amendments apply or the 1995, because it is new legislation and was not considered by the Full Court, arguments may or may not - I am not suggesting that they necessarily will, but, again, the matter is up in the air.  So I should really draw that to your Honours’ attention.  The other point that I wish to raise is this ‑ ‑ ‑

BRENNAN CJ:   What, in other words, if it goes back, it might be considered under the 1996 Act?

MR ROBERTS:   Well, it could be.  My friend has raised an argument about section 1240 and about there being some special matter in the Social Security Act about the internal review.  That does not appear to be a reason advanced by either of their Honours in the majority for coming to their decision.

BRENNAN CJ:   But if it is right to say that Esber is to be construed as applying the law as it exists at the moment of application to the AAT to the resolution of the case by the AAT.  That is what Esber says, arguably.  Arguably that is what Esber says.

MR ROBERTS:   Arguably, yes, your Honour.

BRENNAN CJ:   Now, if that is what Esber is construed to say, the problem that you have with this case is that this is not the AAT.

MR ROBERTS:   Precisely.

BRENNAN CJ:   So that the question is, where in other legislation do you find situations of internal review which could raise the same sort of problem?

MR ROBERTS:   In virtually every - I cannot say that, but many, many statutes provide for internal review before going to the AAT.  The Fisheries Administration, provisions of the Pharmacy Act.  There are a huge number of Commonwealth Acts ‑ ‑ ‑

BRENNAN CJ:   Providing for a similar sort of internal review?

MR ROBERTS:   Internal review.  It is the norm as opposed to being an unusual feature.

BRENNAN CJ:   I know that administratively it would be the norm.  I did not know that statutorily it would be the norm.

MR ROBERTS:   Well, they are normally provided, in my submission.  It is difficult about “normally”, I suppose, but there are very many certainly Commonwealth statutes which provide that internal review is in the legislation itself and that is a precursor, the operation of the internal review, before one gets to the AAT.  It is just usual, as your Honour will recall, in many statutes.  Yes, for those reasons we submit that this case should be one for special leave.

TOOHEY J:   And if special leave were granted, what is the position regarding costs so far as ‑ ‑ ‑

MR ROBERTS:   I think we have undertaken to pay the respondent’s costs in the High Court, your Honour.

BRENNAN CJ:   And in any event?

MR ROBERTS:   And in any event, yes.

TOOHEY J:   And below?

MR ROBERTS:   We have not undertaken that as yet, but if that were the requirement, well, I have no doubt we would.

BRENNAN CJ:   What are the orders for costs thus far?

MR ROBERTS:   That we pay - yes, in favour of the respondents.

BRENNAN CJ:   You have got to pay the costs.

MR ROBERTS:   Yes.

BRENNAN CJ:   Well, the question is whether you would undertake not to disturb the order for costs below?

MR ROBERTS:   Yes, we would so undertake, your Honour, and we do so undertake.  Thank you.

BRENNAN CJ:   On the understanding that there are questions of principle to be determined, special leave will be granted in this case.  But if, in the course of the hearing, or if before the hearing it appears that the case may turn on amendments which are presently before the Parliament or may turn upon the close consideration and application of particular provisions of the Social Security legislation in any of its forms thus far, so that the Court would be constrained simply to engage in an exercise of statutory construction, then the Court may well, in those circumstances, revoke the grant of special leave.  In other words, so long as the case proceeds and is capable of proceeding on the footing of principle, the grant is a grant of special leave, but if that understanding turns out to be mistaken for any reason, special leave will be revoked.

MR ROBERTS:   May I inquire as to the position of Esber’s Case and the argument that we sought to advance, whether ‑ ‑ ‑

BRENNAN CJ:   I thought you were putting that on the basis of what may happen on the run.

MR ROBERTS:   True.

BRENNAN CJ:   Then the running is for you, Mr Roberts.

MR ROBERTS:   Thank you.

BRENNAN CJ:   The order is made on the undertaking of the applicant that the costs order in favour of the respondent will not be disturbed in any event and that the appellant will, whatever the outcome of the appeal or the proceedings hereafter, meet the respondent’s costs.

Court will adjourn until 2 o’clock.

AT 1.05 PM THE MATTER WAS CONCLUDED