Sesalim and Secretary, Department of Social Services (Social services second review)

[2018] AATA 1622

Sesalim and Secretary, Department of Social Services (Social services second review) [2018] AATA 1622 (29 March 2018)

Division:General Division

File Number:           2017/1256, 2017/6144, 2017/6422, 2018/0843, 2018/1134

Re:DEAN SESALIM

APPLICANT

AndSECRETARY, DEPARTMENT OF SOCIAL SERVICES

RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie

Date:29 March 2018  

Place:Melbourne

The Tribunal decides that all matters currently pending in the Tribunal and in which the applicant is a party are adjourned until the outcome of the appeals to the Federal Court from decisions given in Tribunal proceedings Nos. 2015/4791 and 2016/4939.

[sgd]
S A FORGIE
Deputy President

PRACTICE AND PROCEDURE – administrative case management decision – request for reasons – explanation given but no obligation to give reasons for a decision made on a procedural step in the proceedings that does not resolve an issue.

Administrative Appeals Tribunal Act 1975 ss 2A and 44A(1)

Federal Court Act 1989 ss 37M and 37N

Aon Risk Services Australia Limited v Australian National University; [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14

Haset Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625; (1993) 67 ALJR 841

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; 162 ALR 577

Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146; 141 ALR 353; 71 ALJR 294

REASONS FOR DECISION

Deputy President S A Forgie

1. Mr Dean Sesalim has lodged two appeals to the Federal Court from two decisions of differently constituted Tribunals, delivered in file Nos. 2015/4791 and 2016/4939. Those appeals have been heard and are currently awaiting judgment by the Federal Court.  Mr Sesalim has lodged five other applications before the Tribunal at its second tier of review (AAT2 review): File Nos. 2017/1256, 2017/6144, 2017/6422, 2018/0843, 2018/1134. The Secretary of the Department of Social Services (Secretary) has asked that the hearing of those five applications be deferred pending the outcome of the two appeals.  The reviews before the Tribunal, and those on appeal to the Federal Court, all raise issues relating to Mr Sesalim’s entitlement to be paid Disability Support Pension (DSP).  Appeal No. VID 1297/2016 also raises the issue whether, if Mr Sesalim is entitled to DSP, he is also entitled to have unlimited portability so that it is payable to him regardless of whether he is in Australia or overseas.  

1. Earlier, Mr Sesalim had asked for his application to the Tribunal (No. 2018/0843) to be given an expedited hearing due to his suffering from financial difficulty and medical conditions.  On 2 March 2018, I refused Mr Sesalim’s request and gave written reasons and outlined why I was not obliged to provide those reasons.[1]   These reasons concern the Secretary’s request that I defer the hearings of the five applications currently before AAT2 pending the outcome of his Federal Court appeal and the appeal lodged by the Secretary. At a telephone directions hearing held 29 March 2018 I granted the Secretary’s request and gave reasons orally.  Mr Sesalim has requested written reasons.  Again, and for the reasons I gave in the previous matter, I do not consider that I am obliged to give reasons but have prepared some brief reasons.

   [1]  Re Sesalim and Secretary, Department of Social Services [2018] AATA 384

BACKGROUND

1. Mr Sesalim has made a number of applications to the Tribunal since September 2015.  Each has been heard at first tier review in the Tribunal’s Social Security and Child Support Division (AAT1 review) before Mr Sesalim has lodged a further application for review to the Tribunal for second tier review.  The history of his applications is set out in the table, which follows.  I note that in some files, Mr Sesalim’s name is spelt “Sisalem” but I have maintained a consistent spelling in these reasons.  Mr Sesalim’s history begins with his being granted DSP with effect from 20 January 2014. 

Applicant AAT2 File No.	AAT1 Decision Date	AAT2 Decision Date	Appeal to Federal Court
Mr Sesalim 2015/4791	1 September 2015 1. Affirmed: (1) decision made by delegate of Secretary and notified to Mr Sesalim on 10 July 2015 to cancel his DSP; and (2) decision made by delegate of Secretary and notified to applicant on 11 July 2015 to suspend Mr Sesalim’s DSP from that date.	22 March 2016 [2016] AATA 170 (Senior Member Cremean) Affirmed: (1) maximum portability period for DSP could not be extended; (2) was not qualified for DSP as at the date of cancellation; and (3) DSP payment was not indefinitely portable.	Lodged by Mr Sesalim VID1297/2016 Heard and reserved by Bromberg J on 27 November 2017.
Mr Sesalim 2016/4939	7 September 2016 Affirmed a decision to reject Mr Sesalim’s claim for DSP lodged on 1 April 2016.	23 January 2017 [2017] AATA 68 (Senior Member Poljak) Set aside and substituted a decision that: 1. Mr Sesalim is qualified for DSP as at the date of his claim being 1 April 2016.	Lodged by Secretary VID166/2017 Heard and reserved by Bromberg J on 27 November 2017.
Mr Sesalim 2017/1256	4 October 2016 Noted a decision made by a delegate on 14 September 2015 to: (1) cancel Mr Sesalim’s DSP with effect from 8 September 2015; and (2) to raise and recover a debt being the amount of DSP paid to Mr Sesalim from 8 September 2015 to 4 July 2016 while an internal review was conducted; and substituted a decision that: (3) the amount of the debt was correct; and (4) the matter be remitted to the Chief Executive of Centrelink with direction that the debt be waived to the extent of Mr Sesalim’s notional entitlement to Newstart Allowance during period 8 September 2015 to 23 March 2016.	On 5 June 2017 and 29 March 2018 direction made by Conference Registrar Stratos and by me respectively deferring further proceedings to a date after the outcome of Mr Sesalim’s appeals to Federal Court is known.
Mr Sesalim 2017/2027	Austudy debt of $3182.96 not waived Debt is recoverable	6 April 207 By agreement, delegate of Secretary waived debt	No appeal.
Mr Sesalim 2017/6144 Note: see also 2017/6422 for Secretary’s application for review of same decision.	28 September 2017 (1) Set aside delegate’s decision made on 14 August 2017 that Mr Sesalim’s DSP be cancelled from 10 August 2017 and that he not be entitled to indefinite portability; and (2) substituted a decision that Mr Sesalim was qualified for DSP at the date of cancellation i.e. 10 August 2017. No reference was made to portability even though Mr Sesalim had raised it in his application to the Tribunal.	12 October 2017 Senior Member Morris decided that, on AAT2 review, the Tribunal does not have jurisdiction to review the decision regarding portability of Mr Sesalim’s DSP as it was not addressed in the AAT1 decision. Decision was in relation to portability issue only. Mr Sesalim’s application to the Tribunal had raised portability as well as qualification for DSP. 29 March 2018 Direction made deferring further proceedings to a date after the outcome of Mr Sesalim’s appeals to Federal Court is known.
Secretary 2017/6422 Note: see also 2017/6144 for Mr Sesalim’s application for review from same decision.	28 September 2017 (1) Set aside delegate’s decision made on 14 August 2017 that Mr Sesalim’s DSP be cancelled from 10 August 2017 and that he not be entitled to indefinite portability; and (2) substituted a decision that Mr Sesalim was qualified for DSP at the date of cancellation i.e. 10 August 2017. AAT1 review made in reference to portability even though Mr Sesalim had raised it in his application to the Tribunal.	12 October 2017 Senior Member Morris decided that, on AAT2 review, the Tribunal does not have jurisdiction to review the decision regarding portability of Mr Sesalim’s DSP as it was not addressed in the AAT1 decision. Decision was in relation to portability issue only. Mr Sesalim’s application to the Tribunal had raised portability as well as qualification for DSP. 29 March 2018 Direction made deferring further proceedings to a date after the outcome of Mr Sesalim’s appeals to Federal Court is known.
Mr Sesalim 2018/0843 Note: see also 2017/0843 for Secretary’s application for review of same decision.	6 February 2018 (1) Set aside a decision of a delegate of the Secretary dated 14 August 2017 that Mr Sesalim was not qualified for DSP as from 10 August 2017; and (2) substituted a decision that Mr Sesalim was qualified for DSP on and from 10 August 2016; and (3) affirmed a decision that Mr Sesalim is not entitled to be paid DSP on an indefinite basis while he is overseas.	2 March 2018 [2018] AATA 384 I refused to expedite the hearing. 29 March 2018 Direction made deferring further proceedings to a date after the outcome of Mr Sesalim’s appeals to Federal Court is known.
Secretary 2018/1134 Note: see also 2018/0843 for Mr Sesalim’s appeal from same decision.	6 February 2018 (1) Set aside a decision of a delegate of the Secretary dated 14 August 2017 that Mr Sesalim was not qualified for DSP as from 10 August 2017; and (2) substituted a decision that Mr Sesalim was qualified for DSP on and from 10 August 2017; and (3) affirmed a decision that Mr Sesalim is not entitled to be paid DSP on an indefinite basis while he is overseas.	29 March 2018 Direction made deferring further proceedings to a date after the outcome of Mr Sesalim’s appeals to Federal Court is known.

THE SUBMISSIONS

1. On behalf of the Secretary, Mr Nguyen submitted that:

   “The Secretary’s position is that in its decision dated 6 January 2018, the AAT1 exceeded its jurisdiction by reviewing a cancellation decision that is already before the AAT2 in application 2017/6422 (and the subject of AAT1 decision dated 28 September 2017).  There has been no cancellation decision made in respect of Mr Sesalim’s DSP since the decision of 10 August 2017 (being the decision that is the subject of review in application 2017/6422).

   The FCA appeals proceeded to hearing on 27 November 2017 and we are presently awaiting judgement. A possible outcome of those appeals is that one or both of the AAT2 decisions which are the subject of the FCA appeals may be remitted to the AAT2 for determination according to law. The Secretary contends that, consistent with the Tribunal’s objectives in s 2A(b) of the Administrative Appeals Tribunal Act 1975, it would be most fair, just, economical and quick to have all matters relating to Mr Sesalim determined by the AAT2 together.

   The evidence in the FCA appeals and the present AAT applications are essentially the same (in respect of cancellation of DSP). If both the FCA appeals were remitted, the issue before the Tribunal would be the determination of Mr Sesalim’s eligibility for DSP at certain discrete periods. It would be highly inefficient to have multiple hearings considering what is essentially the same evidence and would be a sound basis for having all the AAT applications (2017/6422 and 2018/1134) and any remitted matters heard together.”[2]

   [2] Letter from Secretary’s solicitors dated 23 March 2018 addressed to the Tribunal and copied to Mr Sesalim.

2. Mr Sesalim objected to the hearings of the applications being deferred.  His main reason was that the Federal Court has not been asked to consider the issue of indefinite portability.  Furthermore, he did not wish to wait for the Federal Court to deliver its judgments.  Not a single medical report, be it from a General Practitioner or a Psychologist and so on, contradicts his entitlement, Mr Sesalim submitted.  He is receiving payments of DSP now and the sole issue from his point of view is his entitlement to be paid DSP when he is overseas. Mr Sesalim submitted that he needs to travel overseas in order to obtain treatment for his conditions.

   NO ENTITLEMENT TO REASONS

1. In my earlier written reasons, I explained why Mr Sesalim is not entitled to be given, and the Tribunal does not have an obligation to give, reasons for a case management direction of the sort that I made in this case.  I adopt those reasons but will give brief reasons in any event.[3]

   [3] Re Sesalim and Secretary, Department of Social Services [2018] AATA 384 at [3]-[15]

REASONS FOR CASE MANAGEMENT DECISION

General principles

1. The starting point is s 2A of the Administrative Appeals Tribunal Act 1975 (AAT Act) when it provides:

   “In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

   (a)       is accessible; and

   (b)       is fair, just, economical, informal and quick; and

   (c)       is proportionate to the importance and complexity of the matter; and

   (d)       promotes public trust and confidence in the decision-making of the Tribunal.”

1. Provisions such as this are found in provisions of other legislation such as s 420 of the Migration Act 1958.  That section was considered by the High Court in Minister for Immigration and Multicultural Affairs v Eshetu[4] (Eshetu):

   “… The history of legislative provisions similar to s 420 was examined in Qantas Airways Ltd v Gubbins. …  They are intended to be facultative, not restrictive.  Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals.  The extent to which they free tribunals from obligations applicable to the courts of law may give rise to disputes in particular cases, but that is another question.”

   [4] [1999] HCA 21; (1999) 197 CLR 611; 162 ALR 577; Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ; Gaudron and Kirby JJ dissenting

1. Since 1999, similar provisions are applicable to courts such as the Federal Court.  Section 37M of the Federal Court Act 1989 (FC Act).  Section 37M(1) provides that:

   “The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

   (a)       according to law; and

   (b)       as quickly, inexpensively and efficiently as possible.”

2. The “overarching purpose” referred to in s 37M(1) includes, but is not limited to, the following objectives:

   “(a)     the just determination of all proceedings before the Court;

   (b)the efficient use of the judicial and administrative resources available for the purposes of the Court;

   (c)       the efficient disposal of the Court’s overall caseload;

   (d)       the disposal of all proceedings in a timely manner;

   (e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.”

Similar to s 33(1AB)[5] of the AAT Act, s 37N(1) of the FC Act goes on to impose an obligation on the parties to a civil proceeding to conduct a proceeding in a way that is consistent with the overarching purpose provided for in ss 37M(1) and (2). 

[5] “A party to a proceeding before the Tribunal, and any person representing such a party, must use his or he best endeavours to assist the Tribunal to fulfil the objective in section 2A.”

1. Section 2A is framed in terms of the Tribunal’s providing a “mechanism of review” for the purpose of carrying out its functions. This must be understood in terms of procedural, rather than substantive, matters. Even when that is understood, the objectives specified in s 2A may be mutually exclusive. In some cases, what is fair and just may not, for example, be quick or economical. The allocation of resources to ensure a quick determination of a matter may not be proportionate to the importance and complexity of that matter. How is a balance to be achieved among these objectives when they are competing with each other in any particular case?

1. The courts have addressed various considerations that are relevant in striking the balance in any particular case.  In so far as they may apply to the circumstances of the circumstances I must consider, they include:

   (1)“          In the proper exercise of the primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs.  Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings.  Moreover, the time of the court is a publicly funded resource.  Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account.  So too is the need to maintain public confidence in the judicial system.  Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU’s statement of claim should not have been allowed.  The discretion of the primary judge miscarried.”[6]

   (2)“…What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.”[7]

   (3)“          The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales …   The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court’s lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard. …”[8]

   (4)“          Of course, a just resolution of proceedings remains the paramount purpose of r 21 [which is similar to s 37M and 37N]; but what is a ‘just resolution’ is to be understood in light of the purposes and objectives stated.  Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings.  This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re‑pleading, when delay and cost are taken into account. …”[9]

   (5)“… [T]he public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to amend or adjourn …”[10]

   (6)“… Case management is not an end in itself.  It is an important and useful aid for ensuring the prompt and efficient disposal of litigation.  But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is that attainment of justice and no principle of case management can be allowed to supplant that aim.”[11]

   [6] Aon Risk Services Australia Limited v Australian National University; [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14 at [5]; 182; 17 per French CJ

   [7] Haset Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625; (1993) 67 ALJR 841 at [11]; 629; 843-844 per Brennan, Deane and McHugh JJ

   [8] [1993] HCA 47; (1993) 116 ALR 625; (1993) 67 ALJR 841 at [23]; 636; 849 per Brennan, Deane and McHugh JJ

   [9] [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14 at [98]; 213; 43 (footnotes omitted) per Gummow, Hayne, Crennan, Kiefel and Bell JJ Gummow, Hayne, Crennan, Kiefel and Bell JJ

   [10] Aon Risk Services Australia Limited v Australian National University; [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14 at [27]; 191; 24-25 (footnote omitted) per French CJ

   [11] Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146; 141 ALR 353; 71 ALJR 294 at 155; 357-358; 297 per Dawson, Gaudron and McHugh JJ

Consideration

1. If I were to accept Mr Sesalim’s submission that his most recent application for review of AAT1’s decisions dated 6 February 2018 (AAT No. 2018/0843) should be heard in the near future, I would also have to accept a proposition that the Secretary’s application for review (AAT No. 2018/1134) of the same decision, which was made on AAT1 review on 6 February 2018, should be heard at the same time.  Both raise precisely the same issues relating to the review the AAT1 decision.  One issue is whether the AAT1 review could review the decision made by the Secretary made on 14 August 2017 as it had previously been reviewed by a differently constituted Tribunal when making the AAT1 review decision on 28 September 2017.  Assuming that the second AAT1 review could take place, and it is not at all clear that it could, the issue would then become whether Mr Sesalim was, or was not, qualified for DSP and so whether his DSP as properly cancelled on 14 August 2017 with effect from 10 August 2017.  If it were decided that Mr Sesalim’s entitlement to DSP should not have been cancelled, the final issue would be whether he was entitled to indefinite portability.

1. Even though the decision made on AAT1 review on 6 February 2018 is the only application that raises the issue of Mr Sesalim’s entitlement to indefinite portability of DSP, all of the decisions that have been made on AAT1 review, including that made on 6 February 2018, raise the issue of whether or not he is entitled to DSP.  That is so whether it is his application for review or an application for review made by the Secretary or whether the AAT1 review decision has been made, as it has in two matters, and been taken on appeal to the Federal Court. 

1. Although entitlement to DSP is not directly in issue in application No. 2017/1256 relating to the review of the decision made by AAT1 review on 4 October 2016, it is affected by the outcome of the Federal Court appeal from the AAT2 decision made on 22 March 2016 reviewing the AA1 review decision dated 1 September 2015.  The decision made by AAT1 review had affirmed a decision made by a delegate of the Secretary and notified to Mr Sesalim on 10 July 2015 to cancel his DSP. 

1. When Mr Sesalim applied for review of that application, the Tribunal granted his application to stay that AAT1 review decision made on 1 September 2015.  The Tribunal made the stay order on 21 September 2015 to cancel Mr Sesalim’s DSP.  The effect of the stay order was that Mr Sesalim would be paid DSP “… until the decision of the Tribunal on the application for review [in proceedings No. 2015/4791] comes into operation or until further order of the Tribunal”.  That is to say, he would be paid DSP from 10 July 2015 until the AAT2 review decision was made unless, in the meantime, the Tribunal made a further order to the contrary.   Once the Tribunal made its AAT2 review decision on 22 March 2016, the stay order was at an end.  Mr Sesalim’s appeal to the Federal Court would not have affected the operation of the decision that the AAT2 review had affirmed i.e. the decision to cancel Mr Sesalim’s DSP with effect from 8 September 2015.

1. As matters turned out, however, a delegate of the Secretary had made a decision on 14 September 2015 to cancel Mr Sesalim’s DSP.  Just how the delegate had power to cancel a DSP that had already been cancelled on 10 July 2015 is not clear and there is no need for me to pursue it in this procedural matter.  Whether the decision made on 14 September 2015 was correctly made or not, it relates to the recovery of payments of DSP made in a period following the initial cancellation with effect from 10 July 2015 and a date after Mr Sesalim lodged an appeal in the Federal Court from the AAT2 review in proceeding No. 2015/4791.  Whatever effect the stay order that the Tribunal made on 21 September 2015 had, its effect was spent by the time the appeal was lodged.  This is the effect of s 44A(1) of the AAT Act.  An appeal “… does not affect the operation of the decision or prevent the taking of action to implement the decision.”  It follows that the issues raised by proceeding No. 2017/1256 will turn on whether or not Mr Sesalim was entitled to DSP in the period from 10 July 2015 to 4 July 2016.

1. That period will also take in the period covered by Mr Sesalim’s application for review in proceeding No. 2015/4791 of a decision refusing the claim he made on 1 April 2016.  The decision made by the Tribunal on AAT2 review was to find that Mr Sesalim was qualified for DSP from 1 April 2016.

1. It follows that every application to the Tribunal raises Mr Sesalim’s qualification for the DSP at various points and for various periods during the period from 10 July 2015 to the present time.  Mr Sesalim says that the medical evidence has not changed.  Therefore, I have decided, the most efficient way to proceed is to consider the cases together.  They raise a single issue and their review will turn on the same legislative provisions and on the same evidence or type of evidence. 

1. The issue of portability or otherwise of a DSP cannot begin to be considered unless and until a decision has been made that Mr Sesalim is qualified for the DSP. A decision to that effect has been made by the Tribunal on AAT1 review on 6 February 2018 but it is subject to review on an application for review lodged by the Secretary in proceeding No. 2018/1134. It raises the same issues and will be determined on the same or similar evidence to that led in the other proceedings. To hear and determine that application, and any portability if the AAT1 review decision were to be affirmed, would mean that there would be at least two hearings determining entitlement to DSP having regard to the same or similar evidence on the same law. That could lead to inconsistent findings and could lead to further appellate proceedings if they were not decided having regard to relevant principles determined by the Federal Court on appeal in the earliest two proceedings being No. 2015/4791 and 2016/4939. That is wasteful of the parties’ time and resources. It also puts at risk consistency in decision-making if differently constituted Tribunals were to hear some of the matters. Inconsistency among the various matters is not in the interests of either Mr Sesalim or the Secretary. Furthermore, public trust and confidence in the decision-making process would be undermined. In short, to separate one application from the other applications made by Mr Sesalim and those made by the Secretary and to hear it on its own would not be consistent with the objectives that are outlined in s 2A of the AAT Act and that, in carrying out its functions and providing a mechanism of review, the Tribunal must pursue.

1. Having regard to all of these matters, I decided that the balance lay in adjourning all matters until the Federal Court has handed down its judgments in the appeals from the Tribunal’s AAT2 review decisions made in proceedings No. 2015/4791 and 2016/4939. 

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie

..............[sgd]......................................

Associate

25 May 2018

Date(s) of hearing:  29 March 2018

Applicant:In person

Advocate for the Respondent:           Mr Nam Nguyen

Solicitors for the Respondent:           Sparke Helmore