TERRY WOOD and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 675

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 675

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/6231

GENERAL ADMINISTRATIVE DIVISION		)
Re		TERRY WOOD

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date8 September 2009

PlaceSydney (heard at Newcastle)

Decision The decision under review is affirmed. Mr Wood did not qualify for Exceptional Circumstances Relief Payment from 8 February 2008. A debt of $3943.74 for the period 8 February 2008 to 13 June 2008 is owed to the Commonwealth, however the debt in respect of the period 26 May 2008 to 13 June 2008 is waived under s 1237A(1) of the Social Security Act 1991.

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

Senior Member

CATCHWORDS

SOCIAL SECURITY– Exceptional circumstances relief payment – Qualification for - Whether farmer – Whether farm enterprise - Whether contributes a significant part of labour and capital to the farm enterprise –Whether debt owed – Whether grounds for non-recovery – Decision affirmed

WORDS AND PHRASES – “farmer” – “farm enterprise” – “whether contributes a significant part of labour and capital to farm enterprise”

Farm Household Support Act 1992, ss 3, 6, 8A, 56

Farm Household Support Amendment Act 2005

Social Security Act 1991, ss 1223(1), 1236(1A), 1237A(1), 1237AAD

Reference Guide 002.30650 - “Who is a Farmer for Exceptional Circumstances Relief Payment (ECRP) and Interim Income Support (IIS)”

Beadle v Director-General of Social Security (1985) 7 ALD 670

Director-General of Social Security v Hales (1983) 47 ALR 281

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

Re Callaghan amd Secretary, Department of Social Security (1996) 45 ALD 435

Re Dainty and Minister for Immigration and Ethic Affairs (1987) 12 ALD 416

Re Davy and Secretary, Department of Employment & Workplace Relations (2007) 94 ALD 693

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Fisher and Department of Family and Community Services [2001] AATA 275

Re King and Secretary, Department of Family and Community Services [2003] AATA 863

Re Summers and Department of Agriculture, Fisheries and Forestry [2003] AATA 1230

Re Secretary, Department of Families and Community Services andJonauskas (2001) 65 ALD 553

Secretary, Department of Social Security v Hales (1998) 82 FCR 154

REASONS FOR DECISION

8 September 2009 Ms N Isenberg, Senior Member   

BACKGROUND

1.      Mr Terry Wood owns two properties: a 2000 acre property at drought affected Tooraweenah, in Central North North-west New South Wales (“Tallawarra”) and a 40 acre property at Toronto, on the east coast of New South Wales.  He also has a long term (oral) lease of another 40 acres at Toronto.

2.      Mr Wood was issued with an Exceptional Circumstances (EC) Certificate in respect of Tallawarra, on the basis that it was used for “beef (dryland)”, and, as a result, was paid an exceptional circumstances relief payment (ECRP) from 12 February 2007. 

3.      On 8 February 2008, Mr Wood leased out 1,600 acres of Tallawarra for an annual fee of $25,000 and he also sold all his cattle.

4.      On 17 June 2008, Centrelink, on behalf of the Secretary, Department of Families, Housing, Community Services (the Secretary) cancelled Mr Wood’s ECRP because of the rental income, and a debt of $3,943.74 was raised for overpayment of the ECRP in respect of the period 8 February 2008 to 13 June 2008.

5.      That decision was affirmed on internal review but the authorised review officer (ARO) varied the reasons for cancellation and raising the debt.  The ARO found the decision to cancel the ECRP was correct because Mr Wood did not satisfy the definition of ‘farmer’ after he sold his cattle and leased out the majority of his property.  The ARO also decided that riding, training and competing endurance horses was not a farming activity.

6.      The ARO also found that there were no special circumstances that warranted the waiver of the debt.

7.      The Social Security Appeals Tribunal (SSAT) found that the decision to cancel his ECRP was correct but waived the debt for the period 26 May 2008 to 13 June 2008 on the basis of sole administrative error, and the debt, subsequently recalculated as $3350.54, was to be written off for a period of six months from the date of the decision. 

8.      Mr Wood now seeks review by this Tribunal.

ISSUES

9.      The broad issues before this Tribunal are:

·Was Mr Wood qualified for ECRP as at 8 February 2008 and until the EC declaration for the area ceased (which was on 30 September 2008)?

·If not, was Mr Wood overpaid ECRP and was a debt recoverable? 

·If so, are there any grounds not to recover part or all of the debt?

LEGISLATION

10.     The relevant legislation in this matter is contained in the Farm Household Support Act 1992 (the Farm Act) and the Social Security Act 1991 (the Act). 

11. One of the objects of the ECRP, set out in s 6 of the Farm Act, is to provide financial assistance to farmers who are in exceptional circumstances and are experiencing difficulty in meeting living expenses.

12. Section 8A of the Farm Act provides, so far as relevant, that a person is qualified for ECRP if the person:

“…

(A) is a farmer; and

(B) contributes a significant part of his or her labour and capital to the farm enterprise; and

(C) derives a significant part of his or her income from the farm enterprise; and

…

(i) an exceptional circumstances certificate issued in respect of the person has effect.

…”

13. Section 3 of the Farm Act provides the following relevant definitions:

“’farmer’ means a person who has a right or interest in the land used for the purposes of a farm enterprise.

“farm enterprise” means an enterprise carried on within any of the agricultural, horticultural, pastoral, apicultural or aquacultural industries”.

14. Overpayments of ECRP may be recovered under s 56 of the Farm Act.  Sections 1237A and 1237AAD of the Act are also relevant as to whether there are reasons a debt need not be repaid.

Consideration of evidence and findings

15. l had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which I took into evidence.  The following documents were also tendered:

Number  Exhibit

A1Email from Terry Wood dated Sunday 2 August 2009 with subject line AAT 2008/6231, Wood Hearing 3 August 2009.

A2Cancelled certificate of Title Volume 13489, folio 99 Fax stamped 10 June 2008.

A3      Tax Invoice of HR & BC Grugeon dated 3 July 2009.

A4Tax Return dated 30 June 2009 for the financial year 1 July 2007 to 30 June 2008.

A55 pages of credit card statements from the Commonwealth Bank, Westpac Bank and ANZ Bank.

A6Letter from Amanda Quick at Dowling Real Estate, Toronto dated 21 March 2004.

A7Notice of Valuation letter from the Department of Lands dated 01/07/2005 together with two A5 printouts from the Valuer General’s Office: one dated 01/07/1995 in the amount of $374,000 and the other dated 01/07/1993 in the amount of $357,000.

A8Two tax invoices from Christie Hood Pty Ltd dated 06/12/2007 and 27/02/2008 plus a page of cattle mouthing records.

A9A computer printout of google earth map of property.

A10Email from Mr Wood to horsedeals.com.au dated 3 October 2008 regarding sale of “gooseneck, 4 horse angle” – with picture attached.

A116 page fax to the AAT dated 1 April 2009  including riding history.

R1Respondent’s Statement of Issues dated 21 January 2009.

R2Respondent’s Statement of Facts and Contentions dated 24 July 2009.

Was Mr Wood qualified for ECRP?

16.     Mr Wood’s qualification for ECRP depends on whether he was a farmer conducting a farm enterprise as defined, and whether he contributes a significant part of his labour and capital to the farm enterprise and derives a significant part of his income from the farm enterprise, during the relevant period.

Was Mr Wood a farmer conducting a farm enterprise?

17.     Mr Wood contended that he was a farmer, and that his farm enterprises included beef cattle breeding, grazing and trading horses, breeding training agisting and trading, grazing for profit, and grain growing on an opportunity basis. 

18.     Mr Wood owns Tallawarra. From 8 February 2008, Mr Wood leased out 1,600 acres of Tallawarra.  The lessee grows grain and runs some stock.  The lease is for an annual rent of $25,000 per annum, payable either annually, half yearly or quarterly in advance.  Three quarters of the share is payable to Mr Wood and one quarter is payable to a Ms Wendt, who Mr Wood said is his ex-business partner.  Ms Wendt does not own either the house in which she lives, or any of the land, but undertakes some supervisory duties at the property and had made some financial contribution to the farmstay cottage that was erected on the property.  There is also an informal agreement to give Ms Wendt a 25% share of the proceeds of sale if ever the property is sold.

19.     Mr Wood and Ms Wendt retain unrestricted access to the leased land for the purpose of trail riding and training of their horses and any guest riders. 

20.     The lease includes a term that the lessee was to be responsible for the maintenance and repair of fences, but that Mr Wood is to supply the materials.  Mr Wood said that, in addition, he retains responsibility for controlling weeds and fire hazards.

21.     The remaining 400 acres retained by Mr Wood is arable land.  However, when he leased out the bulk of the property Mr Wood ceased grain growing and, after selling all his cattle temporarily ceased farming “beef”.  The proceeds from the sale of his cattle amounted to $46,000 and was used to pay off debts.  Mr Wood made a point of saying that a person does not cease being a cattle farmer because at a given time, he does not have cattle.  It is common practice in times of drought to sell off all the cattle.  Very recently more cattle have been purchased. 

22.     The lease of the majority of Tallawarra provides Mr Wood with a guaranteed income to assist his business to remain viable while he tried to produce income from the sale of his endurance-bred horses which he continued to run on the remainder of property.  His previous horse sales had been sufficient to stay in business when the cattle business was not profitable, especially during the drought.  Equine Influenza, however, crippled any possibility of selling horses to the overseas market.  His last sale was for $400 six months ago.  His last major horse sale was in 2002 when he sold a seven year old horse for $45,000.  Horse breeding is a continuous activity and endurance horses are not sold until they are five years or older. 

23.     In the summer of 2007 Mr Wood planted some ‘summer pastures’, initially to feed his stock, and since the stock has been sold, to feed the remaining horses.

24.     Centrelink has produced a Reference Guide 002.30650 entitled “Who is a Farmer for Exceptional Circumstances Relief Payment (ECRP) and Interim Income Support (IIS)” (the Guide) for the assistance of its officers in considering ECRP claims.  The Guide elaborates upon the definition of ‘farm enterprise’ to the effect that, when combined with the definition of ‘farmer’, qualification under the scheme is restricted to primary producers who have an interest in farming property.  The product has to be grown by the farmer. 

25.     The Guide also provides examples of farm enterprises, including:

“Horse breeder who breeds horses for sale eg, stock horses or those rearing horses for food, skins or other primary production purposes.  Horse breeders who breed racehorses are not considered (sic) to be a farm enterprise.

Farmer who grows hay, chaffs it and sells it, but a person who buys or harvests other farmers’ hay, bails or chaffs it and sells it is not included”.

26.     Whilst I am not bound to apply policy guidelines of the kind referred to in the Guide (see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60) I may do so and, indeed, the Tribunal will usually apply lawful policy guidelines unless there are cogent reasons in a particular case for not doing so; to do so promotes consistency in decision-making: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639 - 645; Re Dainty and Minister for Immigration and Ethic Affairs (1987) 112 ALD 416; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86. The Tribunal would not apply a policy it considers to be inconsistent with the legislation or otherwise unlawful: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642 – 643.

27. The Guide sets out examples of circumstances which would result in either successful or unsuccessful claims. The Guidelines were formulated, it appears, in an endeavour to clarify what type of farm activity might be accepted for the ECRP benefit. No doubt, the Guide was of great assistance to Centrelink staff to quickly evaluate the many ECRP claims. However, in my view, the Guide goes beyond the simple requirements of the Farm Act.

28. Section 3 of the Farm Act defines a farm enterprise as “an enterprise carried on within… the agricultural… industr[y]”. The SSAT referred to the definition of “agricultural” contained in the Macquarie Dictionary, (2^nd Revised Edition) namely: “pertaining to cultivation of fruit, vegetables, and flower, including crop-raising, forestry and stock-raising” (emphasis added).    

29. In my opinion, horse breeding comes within the definition of an “agricultural” enterprise in s 3 of the Farm Act and is therefore a farm enterprise. There seems to me to be little logic in the distinction between a horse breeder who breeds horses for sale - for example, stock horses or those rearing horses for food, skins or other primary production purposes - and a horse breeder who trains and races horses. Further, it seems to me, that, on the evidence, in any event Mr Wood’s raising endurance horses for sale is more akin to the allowable horse breeder, than to the horse racer.

30.     The Secretary referred to the Tribunal’s decisions in Re Summers and Department of Agriculture, Fisheries and Forestry [2003] AATA 1230; Re Fisher and Department of Family and Community Services [2001] AATA 275 and Re King and Secretary, Department of Family and Community Services [2003] AATA 863. I found those cases to be of limited assistance. None are relevant to the issues in this case, or considered the interpretation of “farmer” or “farm enterprise” in the context of an ECRP claim and under the current ss 3 and 8A of the Farm Act, as amended from 21 March 2005.[1]  

[1] See the Farm Household Support Amendment Act 2005 (No 30 of 2005).

31.     I have therefore come to the view that Mr Wood was both a farmer and that he was conducting a farm enterprise.

32.     I am reasonably satisfied that at the relevant date Mr Wood was conducting a farm enterprise in that that he carried on an agricultural business on the 400 acres of Tallawarra. He was growing summer pastures, albeit not for sale, and was raising horses which were for sale.

33.     Further, I was informed that recently, on 5 June 2009, the Department of Agriculture, Fisheries and Forestry have provided policy advice concerning the interpretation of a farm enterprise, so as to include the rearing of live stock.  Income derived from horse breeding is considered income from farming for the purposes of ECRP. Therefore horse breeding (for whatever purpose) should be considered as an eligible enterprise. 

34.     I also find that Mr Wood had an “interest” as owner in the other 1600 acres of land used for the purposes of a farm enterprise, in that the lessee was raising cattle and growing crops. 

Did Mr Wood contribute a significant part of his labour and capital to the farm enterprise?

35.     Mr Wood owns the Tallawarra property which is valued in the vicinity of $600,000 to $800,000 and the Toronto property which is valued at about $440,000.  He has few other assets.  I find that Mr Wood has contributed a significant part of his capital to the Tallawarra property.

36.     However, did Mr Wood contribute a significant part of his labour to the farm enterprise at Tallawarra? I understand “labour” in this context to mean work done in respect of the Tallawarra farm enterprise.

37.     On 26 May 2008, Mr Wood informed Centrelink that on a weekly basis he spent a total of 75 hours per week on the Tallawarra business:

Fencing and yard building   20
     Riding and training horses  20
     Shoeing feet trims handling young horses         15
     Accounts, books, BAS, tax  15
     Travelling to horse events  5

38.      In his application for review Mr Wood said he spends 50/60 hours per week undertaking farm maintenance activities.  He stated that the “vast bulk” of maintenance and production of property and stock is at Tallawarra, not Toronto, which he said was merely a “conduit of sales” for Tallawarra. He wrote that, from the 8 February 2008 to the 26 May 2008, he was in process of shifting stock, setting up an extra residence in a site shed at Toronto, and regaining his own fitness as well as conditioning his horses after a couple years away from endurance competitions at the national and world championship level. He wrote that his work was chiefly heavy physical activities including fencing, weed control, stock handling and lifting 25/40 kg feeds. The work includes riding at weekends, midweek training, routine rounds of stock work and fence inspections.

39.     The SSAT estimated that in the period February to November 2008, Mr Wood spent 52 days travelling, 71 days at Tallawarra and 136 days in Toronto. 

40.     He said in his oral evidence before this Tribunal that, on average, he moves between the Toronto property and Tallawarra two to three times a month, making the five to six hour journey between them.  Taken over a month, he estimated that he spends an average 20 hours per week at each of the properties.  He said he spent the majority of his time maintaining the two farming properties. The number of horses in February was about 17 or 18, and of these only five or six were endurance horses.  Currently he has only three mares (and a stallion he can ‘access’). He sells the endurance horses which are marketed largely through their performance at competition: he sold an endurance horse in 2000 and another in 2002, but has not sold one since.  Others have been essentially given away because they were past their prime.  He retained only essential breeding stock, but the last foal was born in 2005.  He said though that it takes little time to ‘breed’ horses when a stallion and mare are running together, as is the case on his Tallawarra acreage. 

41.     Mr Wood has two to three horses in endurance training. Two horses competed last month, and there was evidence that during the reIevant period he had entered one horse in two endurance events.  His competition horses are ridden daily if they are due to compete and it is rare that they are ridden more than three times a week, although in the week preceding the hearing his horses were ridden about six times.  In the rest of the year half the training is on an electronic horse walker for up to three hours a day.  He has to supervise them on this but does not need to be directly on hand while it occurs.  General husbandry of his horses involves ensuring they have adequate pasture and move paddocks of necessary, and maintenance tasks such as worming.  Only his competing horses are shod.

42.     I have come to the view that, on balance, Mr Wood did not contribute a significant part of his labour to the Tallawara farm enterprise during the period in question. I do not accept that the work is undertaken at or for the Tallawarra business to the extent Mr Wood described. The explanations he has provided at various stages of review have not been consistent. Furthermore, I note that he spends only half his time at Tallawarra. There he spends little time managing the limited role he retains in respect of the leased portion of the property: attending to the supply of materials for fence repair and such activities as may be associated with ‘responsibility’ for controlling weeds and fire hazards. As to his role in respect of the retained 400 acres, I note that, after February 2008, he had only his horses to manage.  By that time he had only 17 or 18 horses, and of these only five or six were endurance horses.  In the relevant period only one of these was entered in two competitions.

Did Mr Wood derive a significant part of his income from the farm enterprise?

43.     I consider this issue only for the sake of completeness. Mr Wood told Centrelink that the horse activities have produced income of approximately $200,000 over a two year period, but it is unclear to what period he referred. 

44.     Mr Wood provided a copy of 2006-2007 and 2007-2008 tax returns. He also provided a profit and loss statement for the 2006-2007 financial year. 

45.     Mr Wood said he had no income from agistment or prizes and that his income was $46,500 from the cattle sales, $18,750 (75% of the rent of Tallawarra) and $548 in shares.  This of course does not quite add up.  Nonetheless it is clear from the material before me that the majority of his income in the relevant period was derived from the sale of cattle. I therefore find that he derived as significant part of his income from the farm enterprise.

Was there an overpayment of ECRP and should it have been cancelled?

46. For the reasons given above, I have come to the view that, after Mr Wood leased out the majority of Tallawarra, he no longer contributed a significant part of his labour to the farm enterprise, and ceased to qualify for ECRP. As such, he had no entitlement from 8 February 2008. Accordingly, he received an overpayment of $3943.74 and a recoverable debt was owed under s 56 of the Farm Act.

Are there any grounds not to recover part or all of the debt?

Write-off

47. The Act makes provision in limited circumstances for debts not to be recovered. Pursuant to s 1236(1A) of the Act a debt may be written-off in very specific circumstances, only if:

”the debt is irrecoverable at law; or

the debtor has no capacity to repay the debt; or

the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

it is not cost effective for the Commonwealth to take action to recover the debt.”

48.     None of these apply to Mr Wood given his ownership of two properties valued together in the vicinity if $1,000,000.

Waiver  for administrative error

49. A debt may be waived under s 1237A(1) providing two conditions are met:

·     that the debt arose solely because of administrative error by the Commonwealth; and

·     payments were received by the debtor in good faith.

50.     On 26 May 2008 Mr Wood informed Centrelink that he had leased out 1600 acres of Tallawarra and moved his residence to Toronto and sold his cattle.  Nevertheless Centrelink continued to pay him ECRP.  I therefore find that the debt 26 May 2008 to 13 June 2008 arose solely from Centrelink’s error. 

51.     Mr Wood believed then, as he does now, that he was entitled to ECRP.  Given the complexity of the considerations, I find that he received the payments in good faith.

52. Accordingly, the debt which arose in respect of the period 26 May 2008 to 13 June 2008 is to be waived under s 1237A(1) of the Act.

Waiver for special circumstances

53.     Mr Wood contends that, if there is a debt, then it should be waived on ground of special circumstances.

54. The waiver is only available if the debt did not result wholly or partly from the debtor (or another person) knowingly making a false statement or a false representation; or failing or omitting to comply with a provision of the Act: see s 1237AAD (a) of the Act.

55.     Therefore before considering Mr Wood’s circumstances I must be satisfied that he is not precluded from consideration. 

56.     The property at Toronto was not advised to Centrelink until Mr Wood wrote to Centrelink on 22 August 2008, advising that he had relocated to Toronto and his mail was being re-directed to Toronto post office. The property was acquired in 1979.  It comprises fenced paddocks, stock yards, horse yards, sheds for storage of farm and riding equipment and two 40 feet site sheds connected with water and electricity where the applicant resides.  The property was not separately declared at the time of claiming ECRP and was not taken into account in assessing entitlement in the past.  Its gross asset value in 2004/2005 was $440,000.  Since 8 February 2008, it has been Mr Wood’s principal place of residence, at which time his residence at Tallawarra ceased to be his principal residence.  Prior to moving onto the property at Tooraweenah, the property was used for farming of a small herd of cattle and horses.

57.     On 16 November 2007, Centrelink sent Mr Wood an account statement of his ECRP.  This also included a notification of his obligations under social security law, including the obligation to inform Centrelink within 14 days if he should “change work in any form” or “leave farming”.

58.     On 8 February 2008, Centrelink sent Mr Wood an account statement which included a notice of his reporting obligations.  On 18 February 2008, Centrelink also sent him a notification confirming that his drought payments would continue and included his obligations to inform Centrelink within 14 days if he started to receive non farm-income, which included “income from rent”, or “if you change address”.  A similar letter was sent on 2 and 11 May 2008.  Mr Wood said he could not recall whether or not he received the letters.  If he did receive them he may have ’filed’ them and they were misplaced in the process of moving.  He had put in a mail re-direction to Toronto for February to May 2008.

59.     I accept, on balance, that Mr Wood was informed by Centrelink on at least three occasions that he was to notify Centrelink if he received rental income or changed address and that he failed to comply with those requirements.  He also failed to inform Centrelink that he owned a second property at Toronto.  However, I do not consider that Mr Wood “knowingly” made a false representation or failed to comply with a provision of the Act: Re Callaghan amd Secretary, Department of Social Security (1996) 45 ALD 435; Re Secretary, Department of Families and Community Services and Jonauskas (2001) 65 ALD 553 at 569).

60. Section 1237AAD(b) of the Act allows for waiver of the right to recover all or part of the debt where there are special circumstances (other than financial hardship alone) that make it desirable to waive the debt.

61.     The Act provides no guidance as to the meaning of the term “special circumstances” in that provision.  In Beadle v Director-General of Social Security (1985) 7 ALD 670, the Full Federal Court stated that it was not possible to lay down precise limits or precise rules for the meaning of the term. The Court indicated that this would depend upon the circumstances of each particular case but commented that, even though the term lacks precision, it was sufficiently understood “not to require judicial gloss" (at [674]). There, the Court affirmed the decision of the Tribunal (Re Beadle and Director-General of Social Security (1984) 6 ALD 1) where (at [3]) the Tribunal had acknowledged that the term was "incapable of precise or exhaustive definition" and that, to be special, the circumstances "must have a particular quality of unusualness that permits them to be described as special".

62.     In Groth v Secretary, Department of Social Security (1995) 40 ALD 541, Kiefel J, after referring to Beadle’s case, observed (at 545) that special circumstances:

“would require something to distinguish... [the]… case from others, to take it out of the usual or ordinary case. …It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary”.

63.     In Director-General of Social Security v Hales (1983) 47 ALR 281, the Full Federal Court stated:

“The legislation provides for the payment of a variety of benefits to different classes of people who will usually have one thing in common: they will be impecunious and in straitened circumstances”.

64.     Mr Wood’s financial situation cannot be considered unusual, uncommon or exceptional, so as to set him apart from other recipients of ECRP.  He owns 2000 acres at Tallawarra, 40 acres at Toronto, some horses, and has income of $25,000 per year in rental of Tallawarra. I accept that while his financial circumstances may be difficult, they are not dire. Mr Wood is in good health, such that he is able to ride in endurance events himself. He can drive long distances. There were no other aspects of his circumstances that might be considered as special.

65.     Each matter is different.  I accept though that Mr Wood, like many farmers has had a long and difficult time on the land during the drought.  However, taxpayers are entitled to expect that, in the ordinary course, money paid to Centrelink beneficiaries to which they are not entitled will be recovered: see Secretary, Department of Social Security v Hales (1998) 82 FCR 154 (per French J).

66. I have come to the conclusion that Mr Wood’s circumstances, taken together, are not sufficiently unusual or unfair that would justify a waiver of some of the debt under s 1237AAD of the Act.

DECISION

67. The decision under review,is affirmed. Mr Wood’s ECRP did not qualify for ECRP from 8 February 2008. A debt of $3943.74 for the period 8 February 2008 to 13 June 2008 is owed to the Commonwealth, however the debt in respect of the period 26 May 2008 to 13 June 2008 is waived under s 1237A(1) of the Act.

I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

Signed: ..........[sgd].............
Steven Mulipola, Associate

Date of hearing:  3 August 2009 
Date of decision:  8 September 2009
Representative for the Applicant:              Self-represented

Representative for the Respondent:         Ms G Heggen, Centrelink Legal Services and Procurement