Singh and Secretary, Department of Social Services (Social services second review) - [2018] AATA 2747

Singh and Secretary, Department of Social Services (Social services second review) [2018] AATA 2747 (23 July 2018)
Division:GENERAL DIVISION
File Number: 2017/6399
Re:GURWINDER SINGH
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:R. Cameron, Senior Member
Date:23 July 2018
Date of written reasons: 10 August 2018
Place:Melbourne

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal decides to:
·affirm the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT Tier 1) made on 18 August 2017 in relation to the compensation debt of $60,806.70; and
·vary the decision under review with regard to the length of the preclusion period so that period is 28 October 2014 to 27 April 2032

[sgd]........................................................................
Senior Member
SOCIAL SECURITY – compensation preclusion period – whether applicant subject to compensation preclusion period – whether compensation debt due – special circumstances – whether all or part of compensation payment can be disregarded – decision relating to compensation debt affirmed – decision relating to preclusion period varied
Legislation
Social Security Act 1991 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Cases
Re Secretary, Department of Family and Community Services v Allan (2001) 66 ALD 147
Re Secretary, Department of Employment & Workplace Relations v Barrington [2006] FCA 527
Re Beadle v Director General of Social Security (1984) 6 ALD 1
Re Groth v Secretary Department of Social Security (1995) 40 ALD 541
Re Jefferies and Secretary, Department of Family and Community Services [2005] AATA 491
Re Secretary, Department of Social Security and Winterbotham [1990] AATA 808
Re Knight and Department of Family and Community Services [2001] AATA 137
Re Reardon and Secretary, Department of Family and Community Services [2004] AATA 90
Re Department of Family and Community Services and Doyle [2002] AATA 676
Re Radosavljevic and Secretary, Department of Family and Community Services [2005] AATA 984
Re Galea and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 721
REASONS FOR DECISION
R. Cameron, Senior Member
10 August 2018
INTRODUCTION

This matter was heard before the Tribunal on 23 July 2018. Oral reasons were given by the Tribunal at the conclusion of that hearing at some length[1]. The orders that were made by the Tribunal were as follows:
(a)Affirm the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT Tier 1) made on 18 August 2017 in relation to the compensation debt of $60,806.70; and
(b)Vary the preclusion period from 28 October 2014 to 27 April 2032.
[1] The oral reasons given by the Tribunal on 23 July 2017 took approximately 1 hour and 20 minutes.
Subsequent to the delivery of the reasons the Applicant, as he was entitled to do, requested by email on 24 July 2018 that the Tribunal deliver written reasons. These reasons are being furnished pursuant to that request by the Applicant.
THE REVIEWABLE DECISION
As noted above, the decision under review was made by the Social Services and Child Support Division of the Administrative Appeals Tribunal on 18 August 2017. This decision affirmed a decision made by an authorised review officer of the Department of Human Services (“DHS”) on 3 May 2017. That decision made a finding that by reason of a successful claim being made by him against the Transport Accident Commission (“TAC”), following injuries he sustained in a car accident on 28 October 2011:
(a)The Applicant would be subject to a compensation preclusion period from 27 October 2014 to 14 December 2031; and
(b)The TAC would be required to repay to Centrelink the amount of the disability support pension (DSP) that the Applicant was paid from 6 November 2014 prior to the release of his compensation settlement monies being $60,806.70.
ISSUES BEFORE THE TRIBUNAL
The issues to be determined by the Tribunal in this application can be conveniently distracted as follows:
(a)Is the Applicant subject to a compensation preclusion period (within the meaning of the relevant sections of the Social Security Act 1991 (“the Act”) from 27 October 2014 to 14 December 2031 inclusive, or any other date and if so, what date or dates;
(b)Whether there is a compensation debt of $60,806.70 due to the Respondent for the period from 6 November 2014 to 3 April 2017, or any other date and if so, what date or dates;
(c)Should all or any part of the compensation payment of $60,806.70 be disregarded by reason of it being appropriate to do so in the special circumstances of the Applicant’s case within the meaning of section 1184K of the Act?
THE EVIDENCE AND OTHER MATERIAL BEFORE THE TRIBUNAL
The following documentary evidence was tendered by the Applicant before the Tribunal:
(a)A bundle of documents including a “Financial Summary” from Burbank homebuilders[2], conveyancing documents from solicitors who had acted for him with respect to the purchase of the property at Sunbury, a letter from Slater and Gordon dated 19 April 2017, several Tax Invoices and documents described as “Indicative Fee Information” from Victoria University (for various courses being undertaken by the Applicant) and several documents concerning the purchase and maintenance of an Audi motor vehicle acquired by the Applicant in June 2017;
(b)A report dated 6 July 2018 from Siew Ling Lee, a clinical psychologist concerning psychological treatment undertaken by the Applicant with him;
(c)A witness statement made by the Applicant dated 1 April 2018;
(d)A bundle of bank statements for a “Maxi Saver” account from 23 May 2017 to 22 November 2017 with the Bank of Melbourne; and an “Express Freedom” account, conducted by the Applicant with the Bank of Melbourne between 23 May 2017 and 22 May 2018.
[2] "Burbank” was building a home for the Applicant on a property in Sunbury in the State of Victoria.
The Respondent tendered the following documents:
(a)The T-documents; and
(b)The Supplementary T-documents.
Mr Singh gave oral evidence before the Tribunal and was cross-examined extensively by Mr Noonan on behalf of the Respondent.
Additionally, the Respondent filed and served a comprehensive Statement of Facts, Issues and Contentions.
SOME RELEVANT FACTS
Most of the facts in this case are not controversial. Several facts were established from the documentary evidence and in many cases also admitted by Mr Singh during the course of his evidence in the witness box. However, they will be outlined for the avoidance of any doubt.
On 28 October 2011 the Applicant suffered serious injuries in a motor vehicle accident[3]. In this accident the other occupant of the vehicle in which he was travelling was killed.
[3] Mr Singh gave a detailed account of the injuries that he suffered in that motor vehicle accident. Comprehensive details of the injuries he suffered in the accident and the Applicant's medical history are also contained in the several reports of Dr Nathan Serry of 1 October 2012 (document T 7 of the T-documents) and 12 May 2014 (T 8 of the T-documents), Carol Burton a Clinical Neuropsychologist of 19 September 2014 (document T 9 of the T-documents) and Siew Ling Lee of 6 July 2018 all of which were tendered in evidence.
The TAC paid to the Applicant impairment benefits of $58,580 being the sum of $6,860 on 22 November 2012 and $51,720 on 14 April 2015.[4]
[4] Document T 15 of the T-documents provides these details in a "Compensation Advice of Lump Sum Payments" document.
The TAC made weekly compensation payments to the Applicant between the period 7 November 2011 to 27 October 2014.[5]
[5] See document T 13 of the T-documents which provides a complete breakdown of these payments including the date that each payment was made and the amount of each such payment. It is a document that appears to be a computer-generated spread sheet, ledger or other form of business record containing entries recording each such payment made by TAC to the Applicant. It should also be noted that it is apparently a copy of a document that was faxed or in some other way electronically transmitted by TAC to DHS.
On or about 6 November 2014 the Applicant was granted the DSP.[6]
[6] This fact is revealed from amongst other sources a business record of the Respondent, being document ST 1 of the ST-documents. It is also established from documents T 25, T 26 and T 27 of the T-documents, which are also business records containing entries apparently made in the course of conducting the Respondent's business or activities, of dispersing public monies for the purposes of various social-service entitlements in accordance with the provisions of the Act. All these documents are obviously business records and the entries recorded on them a prima facie proof of the transactions contained in them. The Applicant also admitted this fact in the witness box.
On 2 March 2017 a judgement was entered in favour of the Applicant following a 12-day jury trial for $1,314,238.70, with costs of the proceeding including reserved costs to be taxed on a standard basis, (the 2 March 2017 judgement) (certificates were given in the judgement by the trial judge for counsel’s fees). The judgement of $1,314,238.70 was calculated in three parts as follows:
(a)$500,000 as damages for pain and suffering and loss of enjoyment of life, reduced by $58,580 pursuant to section 47 of the Transport Accident Act 1986; plus
(b)$900,000 as damages for loss of earning capacity, reduced by $42,181.30 pursuant to section 49 of the Transport Accident Act 1986; plus
(c)$15,000 as damages by way of interest.[7]
[7] A copy of the Judgement entered by the Honourable Justice Cavanough is to be found at document T 14 of the T-documents. The Judgement is referred to in its entirety for its full force and effect.
In the course of his oral evidence Mr Singh agreed with each of the facts articulated above in paragraphs 10 to 14.
There are some further critical facts that will be also referred to, which are relevant to the matters to be determined in this application.
On 5 April 2017 the DHS wrote to the Applicant advising him that it was aware that he had become entitled to receive a lump sum compensation payment of $1,314,238.70[8]. In that letter the DHS further advised that as a result of the entitlement to receive the lump sum compensation payment it had calculated that he had a preclusion period that started on 27 October 2014 and would end on 14 December 2031. Further, the Applicant was advised in that letter that during the preclusion period he was not able to receive income support. Having already received $60,806.70 during the preclusion period, the Applicant was advised that it must be repaid. The 5 April 2017 letter also informed the Applicant that the DHS had requested the TAC to repay the amount of $60,806.72 to it before it paid the residue of the Applicant’s compensation payment under the 2 March 2017 judgement to him[9].
[8] The letter from DHS to the Applicant of 5 April 2017 is document T 17 of the T-documents. The contents of the letter are referred to in their entirety for their full force and effect. In his evidence to the Tribunal from the witness box the Applicant admitted that he received that letter.
[9] It should also be noted that the 5 April 2017 letter from the DHS to the Applicant also stated that it was entitled to request the TAC to make the payment of $60,806.70 to it "under Social Security law".
Additionally, on 5 April 2017 DHS wrote to Slater and Gordon who had acted for the Applicant in his 12-day jury trial in the Supreme Court of Victoria, advising the law firm that it had requested the TAC to repay the sum of $60,806.70 before the residue of the compensation entitlement accruing to the Applicant was paid to him.[10] It should be observed at this juncture that there was no response tendered in evidence from Slater and Gordon to the letter from DHS of 5 April 2017. It does not come as any surprise to the Tribunal that there was no response. This is because the procedure adopted by the DHS of calculating the relevant preclusion period and seeking reimbursement from the authorised insurer TAC, which was liable to make the payment due under the 2 March 2017 judgement, is routinely adopted and presumably, was well known to Slater and Gordon as a legal fact of life.
[10] The letter to Slater and Gordon also explained that a preclusion period had been calculated and that during such period the Applicant was not able to receive income support from Centrelink and was therefore required to repay $60,806.70.
On 5 April 2017 the DHS served a “Compensation Recovery Notice” on TAC[11]. The notice was served because the TAC was liable to pay compensation as the authorised insurer of the defendant in the Supreme Court Proceeding in which the 2 March 2017 judgement was entered, which included compensation for lost earnings or capacity to earn[12]. This notice was a notice that complied with the provisions of section 1184D of the Act. The notice made the TAC liable upon being given such notice to pay $60,806.70 to the Commonwealth. Such sum could be paid from the entitlement that the Applicant otherwise had under the terms of the 2 March 2017 judgement.[13]
[11] This Compensation Recovery Notice of 5 April 2017 was document T 18 of the T-documents. It is referred to in its entirety for its full force and effect.
[12] It should be borne in mind, and will be articulated further in these reasons, that the definition of "compensation" in section 17(2) of the Act includes a payment that is made wholly or partly in respect of lost earnings or lost capacity to earn resulting from personal injury.
[13] As will be noted later in these reasons, in addition to establishing a liability to the Commonwealth under section 1184D, it is also a debt due to the Commonwealth under section 1184G of the Act.
In a letter of 5 April 2017 DHS also advised the Applicant that his DSP had been cancelled because of his compensation settlement.[14]
[14] The letter to the Applicant cancelling his DSP is document T 20 of the T-documents.
On or about 5 April 2017, and on several days shortly thereafter, the DHS had several relevant telephone conversations with the Applicant and representatives from the TAC concerning the preclusion period and the subsequent obligation of the TAC to pay the sum of $60,806.70 to it. In evidence before the Tribunal were a series of business records which are described as “Online Document Records”.[15] The substance of several telephone conversations between DHS officers and the Applicant are recorded. It is considered appropriate to recount in these reasons the contents of several of these conversations.
[15] These records are document T 28 of the T-documents. Once again they are business records maintained by the DHS. When a DHS officer has a telephone conversation with another person file notes of such conversation are typed into an online system to create an electronic diary or online record-keeping system.
On 5 April 2017 the DHS officer spoke to a solicitor at the TAC. Shortly thereafter, the same officer also spoke to a solicitor at Slater and Gordon called “Sanderin”. Sanderin informed the DHS officer that she had already informed the Applicant who was her client, of how the lump sum compensation payment would affect his Centrelink entitlements. The DHS officer in that conversation also noted that the Applicant believed that the DHS should not seek to recover the amounts that he had received by way of the DSP during the preclusion period.
Several things emerge from this conversation, which were not seriously disputed by the Applicant in the course of his evidence. First, he had been advised by Slater and Gordon of the procedure with respect to the preclusion period and recovery of DSP payments that he had received during that period from DHS. Secondly, that the Applicant well knew that the DHS believed it was entitled to recover the relevant sum of $60,806.70 from TAC and would do so. On several occasions in the course of his evidence the Applicant expressed extreme annoyance that anyone from Slater and Gordon had spoken to an officer of DHS. He felt that it was a breach of confidentiality or probably legal professional privilege. It was his contention that they had no right to contact his lawyer. She had no right to provide information to DHS without his consent. He even went so far as to ask how this could have been done when we are living in a democracy. The Applicant did not accept the fact that the 2 March 2017 judgement was a matter of public record, nor the fact that it did not have the features or qualities of information that was confidential or otherwise subject to any claim for legal professional privilege that a solicitor would be obliged to claim in the course of a telephone conversation with an officer of the DHS.
There were then several telephone conversations on 5 and 7 April 2017, in which the Applicant and the relevant officer of the DHS maintained their respective positions. The position of the Applicant was that the DHS had no right to recover $60,806.70 from the TAC out of the proceeds of the 2 March 2017 judgement. He repeatedly stated that the DHS should not do so until he had had the opportunity to “appeal the decision”. The position of the DHS was simply that as a matter of law it was obliged to recover the sum sought from the TAC. There was no doubt from the file notes and indeed from the concessions made by the Applicant in the witness box that the law was explained to the Applicant in detail and that whether his compensation was for past present or future earnings, the legal responsibility remained the same. One way or another, DHS was entitled to be repaid the DSP received by the Applicant during the preclusion period.
In his evidence, particularly under cross-examination, when the specific contents of the file notes were either read out to him or drawn to his attention, particularly those file notes recording the conversations between the DHS officer and the TAC officer and Sanderlin (at Slater and Gordon) the Applicant readily conceded that: “I am not objecting to the preclusion period just having to repay the amount.” This concession was not retracted at any time subsequently in his evidence and was repeated on several occasions.
The only real point of difference between the notes and the evidence given by the Applicant if it is indeed a point of difference at all, was that the Applicant contended that his telephone conversation on 7 April 2017 was: “...over an hour and almost two hours”. He further asserted that in the course of the conversation the officer of the DHS that he initially spoke to passed him on to one of her superiors, who in the end terminated the conversation. The Applicant was not impressed with this conduct. He specifically said that in the course of the conversation concerning the DHS officer:
“She said you would have to repay. I didn’t agree with her, we didn’t agree. She had enough of me and she hanged up. I said I am going to dispute it and don’t take the payment from TAC and she said that they would.”
This evidence shows that between 5 and 7 April 2017 the Applicant was informed by the DHS in writing and in the course of several, at times lengthy, telephone conversations with its officers, (not to mention subsequently, Slater and Gordon) that the DHS would be recovering the sum of $60,806.70 from the TAC out of the proceeds due by it to him under the terms of the 2 March 2017 judgement. Whilst the Applicant strenuously disagreed with the right of the DHS to recover these monies, he was well warned and indeed conceded he knew that it was going to do so. Additionally, he knew after 10 April 2017 that it had in fact recovered that sum from the TAC.

Following receipt of the Compensation Recovery Notice, which created a debt due by it to the Commonwealth under section 1184G of the Act, the TAC paid the sum of $60,806.70 on 10 April 2017.[16]
[16] This fact was acknowledged by the Respondent and the DHS in several of the T documents. For instance, there is an admission of this fact in document T 22 of the T documents (at page 88) which was the decision of the Authorised Review Officer of 3 May 2017 confirming the recovery of such sum as being correct.
After the receipt of the correspondence of 5 April 2017 from the DHS, and the several telephone conversations of considerable length that the Applicant had with its officers, the Applicant then consulted Slater and Gordon on several matters, including but not limited to the fact that DHS had recovered $60,806.70 from the TAC out of the proceeds it was obliged to pay him pursuant to the 2 March 2017 judgement. Slater and Gordon wrote a letter dated 19 April 2017 which is in evidence before the Tribunal. This letter records that he had made a complaint to Slater and Gordon’s “Professional Standards Team”. It is apparent also from that letter that he had most likely consulted a member of Slater and Gordon’s professional staff and provided them with instructions and sought advice. The letter was divided into discrete subject headings which dealt with the Centrelink repayments, costs accrued since mediation, the decision to proceed to trial and a request for an itemised bill.
With respect to the “Centrelink repayment”, the author noted that the Applicant had “disputed the Centrelink payback figure”. The letter advised the Applicant:
“Pursuant to legislative requirements, the deduction is made directly by TAC and has already occurred. The deduction relates to a liability for lost earnings or capacity to earn. Your award included a $900,000 component for loss of earning capacity… There is therefore no basis to write to Centrelink in the terms you have requested.”
When probed by the Tribunal on the last sentence referred to from the Slater and Gordon letter of 19 April 2017, the Applicant said: “I asked them to write to Centrelink about the amount. They refused.” It appears in the light of his concession earlier that he was not disputing or objecting to the preclusion period, that his objection was that he had not been provided with adequate proof as to how the $60,806.70 was calculated. He described it as not receiving a “periodic table” showing what amounts he had received for the disability pension during the preclusion period.
Considering the contents of the Slater and Gordon letter of 19 April 2017, the Tribunal concludes that the Applicant was advised that DHS was entitled to claim $60,806.70, as it did in accordance with the powers conferred upon it by the provisions in the Act. Therefore, as responsible practitioners, bearing in mind their ethical obligations, they were not prepared to write to Centrelink seeking to recover that sum from it as there was no proper basis to do so as a matter of law. No doubt this was explained to the Applicant in detail in the course of the “previous correspondence and discussions” referred to in the very first sentence of that letter. Once again, it leaves the Tribunal to conclude that there is absolutely no doubt that as at the date of that letter the Applicant knew that he had no right to reclaim the sum that he now does, by reason of the application to review the decision concerned.
THE LEGISLATIVE FRAMEWORK
Although individual sections of the Act have been referred to earlier in these reasons to provide context, it is useful to outline the legislative framework concerning receipts of compensation by a recipient of various benefits including the DSP granted under the relevant provisions of the Act.
The starting point is to recognise that the term “compensation” is defined in section 17 of the Act. The term “compensation affected payment” is also defined, and includes a DSP. Section 17(2) defines the term “compensation” to include, a payment of damages, a payment under a scheme of insurance or compensation under a relevant law and any other compensation or damages payment. Such payment is also defined to include a payment that is made wholly or partly in respect of lost earnings or lost capacity to earn resulting from personal injury. The Tribunal notes that this is the very form of payment that the Applicant received as a result of the entry of the 2 March 2017 judgement in the Supreme Court of Victoria.
Where there has been the receipt of compensation by a person who has been granted a DSP the operation of Division 3-Receipt of Compensation, Part 3.14 of Chapter 3 of the Act is triggered.
Section 1169 of the Act provides that if a person receives a compensation affected payment (in this case the DSP) and such person receives a lump sum compensation payment (in this case the amount paid to the Applicant in satisfaction of the 2 March 2017 judgement) the compensation affected payment (the DSP) is not payable to the person in relation to any day or days during the lump sum preclusion period.
Section 1170 prescribes the mechanism to be adopted in calculating the lump sum preclusion period.
Once the preclusion period has been calculated, if the DSP has been paid to a recipient of compensation, under section 1184 the Secretary may give a written notice to the compensation payer (in this case the TAC) that the Secretary proposes to recover from the compensation payer the amount specified in the notice (being the amount of the DSP paid to the compensation recipient during the preclusion period).
Under section 1184(3) if the compensation payer or insurer (in this case the TAC) is given a notice by the Secretary the compensation payer or insurer is liable to pay the Commonwealth the amount specified in the notice.
Under section 1184G of the Act, if the Secretary gives a person a notice under section 1184 proposing to recover a specified amount from the person, the specified amount is a debt due by the person to the Commonwealth.
There was a consistent submission from the Applicant that the steps taken by the DHS to recover $60,806.70 was wrong, unjustified, that there was no right to take the money, and that he had a right to dispute the claim. He further made the submission that this Tribunal should find the respondent “in contempt. They are in contempt, they are in contempt.”
As has been correctly submitted by the Respondent, the purpose of the legislative scheme is to ensure that a person who receives lump-sum compensation for personal injury (either at common law or under applicable workers compensation schemes) does not “double dip” and receive benefits from the public purse in respect of the same time span as for that which he received a lump sum payment of compensation.
To assist the Applicant to understand why there is this prohibition on payment of the DSP during a preclusion period it is useful to examine some authority on the topic. The question was helpfully addressed by Heerey J in two decisions. First, in Secretary, Department of Family and Community Services v Allan[17] he noted:
“This appeal from the Administrative Appeals Tribunal (the tribunal) concerns the application of provisions of the Social Security Act 1991 (Cth) (the Act) which deal with the suspension (preclusion) of Social Security benefits were recipients have received compensation for loss of earnings by awards under workers compensation legislation or damages at common law. The basic policy, understandably enough, is that there should not be “double dipping”. People should not receive Social Security payments for loss of earnings where they have received compensation for that same loss of earnings from another source.”
[17] (2001) 66 ALD 147.
Secondly, in Secretary, Department of Employment & Workplace Relations v Barrington[18]. Heerey J made the following observations:
“The rationale is that a person receiving the benefit of a compensation payment for a disability should not also receive payments out of public funds for the same disability until the compensation payment is exhausted.”
[18] [2006] FCA 527.
A CONSIDERATION OF AND RULING ON THE FIRST TWO ISSUES FOR CONSIDERATION
Having recited the facts above concerning the compensation payment received by the Applicant from TAC, the first two primary issues in dispute in this application can be disposed of.
The Applicant was receiving DSP. As noted earlier this benefit is a compensation affected payment within the definition of section 17 of the Act.
By reason of the 2 March 2017 judgement, the Applicant was entitled to compensation within the meaning of section 17(2) of the Act. He did receive such compensation from the TAC of $1,314,238.70, it triggered the “Compensation recovery” procedure contained in Division 3-Receipt of compensation, Part 3.14 of Chapter 3 of the Act which, as outlined above, has been enacted to prevent the concept of double-dipping by a common law compensation recipient such as the Applicant.
On 5 April 2017 DHS served the correct notice on TAC claiming the $60,806.70 paid by it to the Applicant as a DSP during the preclusion period. The Tribunal repeats the observations made earlier, that the Applicant conceded that he was not disputing nor objecting to the term of the preclusion period.
Having served the correct notice under section 1184 of the Act this triggered a liability on the part of the TAC to make a payment of that sum of $60,806.70 to the Commonwealth. Therefore, in accordance with the obligations cast upon it under the relevant sections of the Act including section 1184G, the TAC paid that sum to DHS on 10 April 2017.
Accordingly, the Tribunal addresses the first issue to be decided by finding that the Applicant was subject to a preclusion period as alleged and finds that such preclusion period is from 28 October 2014 to 27 April 2032.
The business records of the Respondent tendered in evidence before the Tribunal satisfactorily outlines the calculation of the sum of $60,806.70.. Therefore, the Tribunal concludes that such debt has been established in answer to the second issue to be decided.
The Tribunal briefly touches on one other contention of the Applicant, an argument he made that the recovery of $60,806.70 from the TAC as it did, was taken from his future earnings or future income which the law does not permit. The Tribunal rejects this contention by reason of the language used in the relevant sections of the Act. In so far as Division 3 and its prescription is concerned, the definition of compensation relied upon in that division does not resort to a distinction between past, present or future income. The definition of compensation contained in section 17(2) includes a compensation payment made wholly or partly in respect of lost earnings or lost capacity to earn resulting from personal injury. Even if the Applicant’s contention was otherwise correct (which it is not), there is in evidence before the Tribunal several pages from the transcript of the proceeding during the course of the 12-day jury trial in which counsel for the TAC specifically addressed the jury on the appropriate award of lost earnings. An award that so covered such lost earnings would also be caught within the definition of compensation contained in section 17(2) of the Act applying the more limited construction contended for by the Applicant.
However, once again, if the contention of the Applicant was correct, one would have expected that Slater and Gordon, an experienced firm of personal injury lawyers, would have taken this matter up with the Respondent and sought to either restrain it from taking the action it did to recover the sum or, alternatively, advised the Applicant to take recovery proceedings. As noted earlier, in its letter of 19 April 2017 Slater and Gordon did not recommend any such action, or any action at all. This contention on behalf of the Applicant must fail.
HAS THE APPLICANT DEMONSTRATED SPECIAL CIRCUMSTANCES WITHIN THE MEANING OF SECTION 1184K OF THE ACT?
The final issue to be considered by the Tribunal is whether the discretion conferred by section 1184K of the Act should be exercised in the Applicant’s favour. Section 1184K of the Act permits the Secretary to 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. It is incumbent on the Applicant to prove “special circumstances” as required by the section.The concept of “special circumstances” is one that is well known to the law in a variety of settings. Courts and tribunals of all types frequently have to determine whether special circumstances are made out.
Many authorities have decided what constitutes special circumstances so as to enliven the jurisdiction conferred by section 1184K. The criteria that have to be established have been held to be unusual, uncommon or exceptional[19]. It requires something that distinguishes the Applicant’s case from others, to take it out of the usual or the ordinary[20]. It is the only enquiry to be undertaken in cases such as this. It is a comparatively high threshold to meet.
[19] For instance see ReBeadle v Director General of Social Security (1984) 6 ALD 1.
[20] Re Groth v Secretary Department of Social Security (1995) 40 ALD 541 per Kiefel J.
There were several facts and matters relied upon by the Applicant in support of his contention that there were special circumstances in existence which enlivened the exercise of the discretion conferred on the Tribunal by section 1184K. Those facts and circumstances can be summarised as follows:
(a)That the Applicant had purchased the land situated at Sunbury for approximately $212,700[21];
(b)The entry into a building contract with Burbank Homes for $279,821 on 14 March 2018 to a erect a dwelling on the Sunbury land;
(c)He has incurred education expenses for various courses at Victoria University;
(d)That he undertook three overseas trips in 2017 and 2018 as recommended by various treating health care professionals;
(e)That he had incurred the cost of purchasing a motor vehicle and unexpected repairs for that vehicle;
(f)That he had incurred significant legal costs associated with the Supreme Court proceeding, pursuant to which the 2 March 2017 judgement was entered; and
(g)That he had continuing and long-term health issues largely caused by the motor vehicle accident in which he was seriously injured.
[21] The evidence of this transaction was contained in the "Statement of Account" from Austin Hoban lawyer and his trust account ledger in the name of the Applicant for the purchase of the land concerned. The Applicant gave evidence from the witness box of the total purchase price was $225,000 with a deposit of $21,500 and the balance of the purchase price paid on or about 23 October 2017 as confirmed by the transactions recorded in the solicitor's trust account ledger.
The Tribunal will treat the purchase of the land and the construction of the dwelling on that land in the same vein. The starting point in this consideration is that the Applicant went ahead and entered into the contract for the purchase of the land and the construction of the home on it after the sum of $60,806.70 had been recovered by the DHS from TAC as outlined earlier in these reasons. Indeed, he did so a long time after such payment had been obtained by the DHS. He did so with full knowledge of what DHS had done and the robust view that it took, namely that it would not exercise the discretion under section 1184K in his favour, so as to treat the payment of $60,806.70 as having not been made, and thereby, remit such sum to him. In short, he entered these contracts at his own peril.
Also, in his evidence in the witness box, the Applicant stated that he did not receive any specific advice when making the decision to purchase the block of land and enter into the building contract to erect a dwelling. He stated that he attended three different banks and did go to a private advisor. However, he did not know who to get advice from. In his own words he stated: “The risk appetite I had was very low. I wanted a house, I don’t want to lose it.” He stated that he had no financial plan and didn’t pay any consideration to this factor at all, and that he needed to look at the market. Critically, he stated, concerning the decision to buy a block of land and build a home in Sunbury: “I made this informed decision to move to this area and not build in Noble Park or Clyde. I did consider what to do.” On his own admission, this is further evidence of the fact that armed with the knowledge that he would not have resort or access to $60,806.70 without advice, and that at his own peril he entered into both the contract for the purchase of the land and the building contract with Burbank Homes.
The Respondent, at paragraphs 55 to 79 of its Statement of Facts, Issues and Contentions, referred to numerous decisions. These decisions established that when a party who is the recipient of a benefit under the Act including a DSP, proceeds to purchase a residence, well aware of the application of the preclusion period prior to such purchase, they do not by reason of these facts establish special circumstances that enliven the jurisdiction under section 1184K of the Act. Indeed, the authorities hold that were such a discretion to be exercised in favour of a person such as the Applicant, it would confer upon him a double benefit against those in a similar position[22]. To apply the relevant test it does not distinguish the Applicant’s case from others or place him in a position that is unusual, uncommon or exceptional. The buying of land and entering into a building contract to purchase a dwelling after having received a compensation payout as the Applicant did, is one that is frequently found in the authorities concerned. It is often considered in a compensatory sense, an object of an award of damages in personal injury actions.
[22] See Re Jefferies and Secretary, Department of Family and Community Services [2005] AATA 491 amongst the several others that were referred to in the Respondent's Statement of Facts, Issues and Contentions.
Additionally, the Tribunal has not lost sight that the Applicant, after entering into the contract for the purchase of the land and the building contract to erect a home on that land, still has a significant amount of cash at his disposal given that the 2 March 2017 judgement was for $1,314,238.70. (This is not to mention the fact that when the home is erected on the land the Applicant will have a valuable capital asset and a roof over his head for as long as he wants. On the evidence as it is open to the Tribunal such asset will be free of any mortgage encumbrances.) The Applicant did not deny that the residue of this sum was still available to him and there was no other evidence to the contrary. The bank statements were for bank accounts he held and the last bank statement in evidence for the Maxi Saver account contained a closing balance as at 22 November 2017 of $751,942.86. In his witness statement, the Applicant mentioned that the only amount the Department can use for the preclusion period is $587,328.00. It was not apparent where this figure came from and no corroborating documentation was produced by him in support of this figure.
When one considers all these matters, the Applicant has not demonstrated that he is in a position of exceptional financial hardship. In this setting, having assets of a cash balance plus the land and partially completed home, he could not be so regarded. As observed in Re Secretary, Department of Social Security and Winterbotham it should not be expected that the taxpayer should have to support him during the preclusion period whilst he has these assets that are capable of supporting himself.
Therefore, the Tribunal concludes that the entry by the Applicant into the contract for the purchase of the land and direction of the dwelling on it do not enliven any discretion to apply section 1184K.

The reliance upon education expenses as justifying a finding of special circumstances cannot be maintained. It is not unusual, uncommon or exceptional. It does not distinguish the Applicant’s case from others or take it out of the usual or ordinary case. Indeed, it is not uncommon for persons who have sustained personal injuries, including serious personal injuries in motor vehicle accidents, to apply part of an award of compensation to further or higher education so as to retrain themselves for a different occupation in the future.
There are several authorities that show that undertaking a course of further education does not constitute special circumstances within the meaning of section 1184K of the Act; and to assert that it does runs counter to the spirit of the Act itself.[23]
[23] Re Knight and Department of Family and Community Services [2001] AATA 137. In Re Reardon and Secretary, Department of Family and Community Services [2004] AATA 90 Jarvis DP observed that an applicant who sought to retrain by undertaking further or higher education would not establish special circumstances by attempting to do so.
The claim that special circumstances were established because of the need to travel overseas was explored in the evidence before the Tribunal. In particular, the Applicant relied upon the recent psychological report of Mr Lee. Mr Lee opined that because of the serious injuries he had suffered, the Applicant suffered post-traumatic stress symptoms and became anxious and depressed. His opinion was that because his family lived in India and Portugal, and that as the Applicant had no family support in Australia, the overseas trips that he undertook on three occasions in 2017 and 2018 assisted with his recovery.
The Applicant gave evidence from the witness box about the nature of his injuries and the effect that they had on him. The psychological and psychiatric afflictions that had occurred after the motor vehicle accident were recounted in some detail. In his own words, at the time he made these trips: “I was struggling with my life. I was fighting with myself every day.” Additionally, in the course of the evidence that he gave he stated his conditions were amplified by the sense of injustice that he saw in terms of the long time that it took for the driver of the truck (with which he was involved in the relevant collision) to be prosecuted. He made the unfortunate comment: “To get justice you have to have a white face. In the County Court he was given a suspended sentence. A white man wouldn’t get jail because he was white.” The Tribunal considers this use of language extremely unfortunate, if not unnecessary.
It was apparent to the Tribunal that the Applicant was extremely distressed by what had happened to him and how events unfolded concerning the civil and criminal proceedings arising from the motor vehicle accident. He gave details of the trips that he had and the benefits that he obtained from them. Overall, notwithstanding the emotive terms in which the Applicant gave this evidence, the Tribunal accepts the fundamentals of that evidence. It also accepts the evidence of Mr Lee as a suitably qualified healthcare professional. Having accepted the Applicant’s evidence, does it give rise to or justify a conclusion that special circumstances are established. The Tribunal considers that this evidence does not enliven the discretion conferred upon it under section 1184K.
There are several reasons for this. First, accepting the advice of suitably qualified healthcare professionals such as Mr Lee occurs frequently in the setting of personal injuries suffered as a result of motor vehicle accidents. It was an approach that ultimately is captured by the award of compensation arising under the 2 March 2017 judgement. Once again, like other aspects of this case, it does not amount to circumstances that are unusual, uncommon or exceptional or distinguish his case from others or take it out of the usual or ordinary case when compared with other persons who suffer personal injuries arising from a motor vehicle accident for which they are subsequently compensated. Secondly, as contended by the Respondent, it is not an uncommon form of treatment of conditions of the kind suffered by the Applicant. Thirdly, the travel was many years and certainly more than five years, after the accident occurred. Fourthly, notwithstanding the conditions that the Applicant suffered as identified in the relevant medical reports which are before the Tribunal and have been considered, he was able to continue further study and obtain his Certificate IV in Community Services.
Therefore, the Tribunal does not accept that overseas travel justifies a finding of special circumstances.
Concerning the car purchase, the Tribunal cannot accept the contention of the Applicant. To start with, the car purchase was $6,000 which, when compared to the total amount of compensation that he received, is fairly minimal. The purchase of a car by someone who has received a compensation payout pursuant to a judgement of the court or as a result of suffering injuries in a motor vehicle accident once again does not have the indicia of special circumstances as required by the statute. It is not unusual, uncommon or exceptional. It is not something that distinguishes the Applicant’s case from others to take it out of the usual ordinary course of things that someone who has suffered personal injuries may do. To the contrary, it is indeed quite a common occurrence.
The Respondent also asserted that travel to such places by alternative means of public transport was reasonably available. The Tribunal does not place a great deal of weight on this consideration, one way or the other.
The issue of legal costs was canvassed to some extent. As at the preparation and filing of the Respondent’s Statement of Facts, Issues and Contentions, documentary proof of the costs incurred had not been provided by the Applicant. The letter from Slater and Gordon of 19 April 2017 comprehensively answers this question.
In the Respondent’s Statement of Facts, Issues and Contentions several authorities concerning how the question of legal costs should be addressed are referenced. The decision of Heerey J in Barrington was cited again, amongst others because it does succinctly formulate and answer the critical questions in this consideration concerning legal costs. Firstly, as a matter of construction of the Act legal costs should be included in the lump sum compensation payment. Secondly, the amount of the costs can be a relevant factor in assessing whether or not special circumstances exist that enlivens the jurisdiction under section 1184K.
The Tribunal has considered the material before it and considers that special circumstances arising from the legal costs of the Supreme Court proceeding that led to the 2 March 2017 judgement have not been established. Set out below, in no particular priority, are several reasons that this conclusion has been reached. .
First, as the Respondent fairly contends, the Applicant’s legal costs equate to 8 per cent of the settlement sum or thereabouts. Following this contention, the Tribunal notes that amount does not represent an unusually high proportion of the compensation payment when compared with other cases.
Secondly, there are the terms of the 2 March 2017 judgement. That judgement awarded the Applicant costs of the proceeding including reserved costs on a standard basis. The judgement was entered against an insurer against whom recovery was assured and in fact did take place. The learned trial Judge granted a certificate on a solicitor client basis for senior and junior counsels’ brief fees for the 12 days of the jury trial together with three days of preparation and four hours of special conferences. In this day and age, it was a comparatively generous allowance. This meant that upon a taxation in the Costs Court, if the matter went that far, the Costs Court would be obliged to make an allowance for such costs in accordance with the certificate given by the trial Judge. This is a significant benefit to the Applicant when compared with taxations of costs that take place where no such certificate is granted. In short, it means a higher level of recovery of costs from the defendant.
Thirdly, Slater and Gordon succeeded in negotiating party/party costs on a standard basis in accordance with the certificates granted by the trial Judge, and recovered from the TAC the sum of $508,111.11. This sum was made up of professional fees of $250,000 and disbursements (which of course include counsels’ fees) of $258,111.11. The recovery of these amounts does not put the Applicant in an unusual, uncommon or exceptional position when compared with other litigants in the same position. His case is not distinguished from the usual or ordinary case and an adverse setting. Quite the contrary, it is distinguished by the recoupment of the maximum possible amount of money for his costs pursuant to the costs orders contained in the 2 March 2017 judgement. This is to be compared with many cases in the submissions of the Respondent where vast sums of the settlement were taken in costs.[24]
[24] For instance in Barrington almost 25% of the total compensation received by the Applicant was deducted in costs by his solicitor.
Fourthly, the total shortfall of solicitor client costs and disbursements calculated by Slater and Gordon was $167,101.17. Slater and Gordon confined the shortfall of such professional fees to $85,000.
Fifthly, the Applicant proceeded to trial after being warned by Slater and Gordon of what the additional costs, including any shortfall, would be. He also proceeded to trial after he had rejected an Offer of Compromise made by TAC contrary to Slater and Gordon’s advice. He was obviously well warned by Slater and Gordon, in writing, that there would be additional costs risks, by running to trial. Slater and Gordon fairly noted that he rejected advice to settle and instead chose to take the considerable risk of running a 12-day trial. The letter also observed that very experienced advisers explained the significant costs exposure should he proceed to trial. The longer the trial, the greater the risk of a larger solicitor/client costs shortfall. The Tribunal infers that advice of counsel was obtained by the Applicant. It would this advice appear was rejected. To act in this way does not enliven the jurisdiction to find special circumstances. The Applicant was well advised and decided to run the gauntlet. Slater and Gordon and counsel retained by them to act for the Applicant served his interests well.
Finally, there is the issue of the Applicant’s long-term health issues, some of which have already been considered in these reasons.
As noted previously, the Tribunal accepts the evidence that is before it concerning the various injuries and mental health conditions that the Applicant has suffered and continues to suffer.
However, this fact alone does not provide the grounds for the Tribunal to find that special circumstances exist as contemplated by section 1184K. A compensation recipient, suffering from a variety of health challenges is not unusual, uncommon or exceptional. It does not distinguish his case from others or take it out of the usual or ordinary setting.[25] Indeed, invariably recipients of compensation payments arising from personal injuries, will have health problems and be paid such benefits as the DSP. In such circumstances, ill-health alone even if considerable, will not be sufficient to amount to special circumstances.[26] Certainly, such health problems are not special or unusual in the context of persons receiving the DSP.[27]
[25] See Re Department of Family and Community Services and Doyle [2002] AATA 676.
[26] Re Radosavljevic and Secretary, Department of Family and Community Services [2005] AATA 984.
[27] Re Galea and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 721 particularly at paragraph [28].
The Applicant has not demonstrated special circumstances within the meaning of section 1184K of the Act. The Tribunal concludes, in respect to the third issue for consideration in this application, that as no special circumstances have been substantiated by the Applicant, the discretion in that section has not been enlivened. Therefore, the Respondent is not obliged to treat the whole or part of the compensation payment as not having been made or not liable to be made. Therefore, the Applicant’s contention concerning the exercise of the discretion in section 1184K is rejected.
CONCLUSION
By reason of the matters referred to earlier in these reasons, the Tribunal affirms the decision under review in relation to the recovery of the compensation debt of $60,806.70.
Finally, upon request of the Respondent, applying section 43AA of the Administrative Appeals Tribunal Act1975, the Tribunal varies the decision under review with regard to the length of the preclusion period so that period is 28 October 2014 to 27 April 2032.
OTHER MATTERS
The Applicant, on several occasions during the course of the hearing, used words to the effect that he was not being given a fair hearing by the Tribunal. He also criticised the Respondent and its lawyers. When tackled, he usually stated that he was not implying or asserting this. The Tribunal wishes to record that all such comments are totally rejected. It is unfortunate that the Applicant had resort to such intemperate comments. He did concede at the end of the hearing that he needed to change his ways in this regard.

I certify that the preceding 85 (eighty‑five) paragraphs are a true copy of the reasons for the decision herein of R. Cameron, Senior Member
[sgd]........................................................................
Associate
Dated: 10 August 2018

Date of hearing: 23 July 2018

Applicant: In person

Advocate for the Respondent: Mr Tim Noonan, Department of Human Services

Date of hearing:	23 July 2018
Applicant:	In person
Advocate for the Respondent:	Mr Tim Noonan, Department of Human Services