Wehbi, H. v Secretary, Department of Social Security

[1993] FCA 128

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JUDGMENT NO. .a.ma.sa. Hmnwo.m-

IN THE FEDERAL COURT OF AUSTRALIA ) )

NEW SOUTH WALES DISTRICT REGISTRY ) No. G 888 of 1992

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BETWEEN:  HASSAN WEHBI
Applicant

AND	SECRETARY DEPARTMENT OF SOCIAL SECURITY
Respondent

DATE :

- 17 February 1993

EX TEMPORE REASONS FOR JUDGMENT

By a notice of motion filed on 3 December 1992, the

applicant has sought an order pursuant to s.ll(l)(c) of the

Administrative Decisions (Judicial Review) Act 1977 that time be extended. At the same time there was lodged in the Registry a document entitled an Application for an Order of Review seeking to review a decision of the Secretary, Department of Social Security ("the respondent") that it recovers the sum of $5617.28 from the applicant on the basis of the applicant having received a closed period Workers Compensation Award. It is also sought to review a further declsion of the respondent that special circumstances within the meaning of s.1184 of the Social Securitv Act 1991 do not exist. I have come to the view that I should grant the

of considerable complexity.
extension.	I will now give reasons because the matter is one

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It is common ground that an application for a judicial revlew is out of time but the substance of the matter	j ,
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does not in truth appear in any clear fashion in the two	;.
documents I have mentioned. This is accepted on behalf of the
applicant and I will assume that in due course appropriate	.
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amendments will be made to the documentation.
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The background to the matter appears in three affidavits sworn by Mr Campo, the solicitor for the	I
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applicants, sworn respectively, 1, 4 and 17 December.	! '
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There is no issue about the background facts. On 25 May 1992 the Compensation Court of New South Wales by consent -

1)   made a finding that the applicant suffered no incapacity beyond 2 April 1992 and

2)	ordered and awarded a) that the respondent, (Corinthian Industries (Sydney)
Pty Limited) pay the applicant the sum of $6000 in respect of weekly compensation at the rate of $331 from

29 August 1991 to 12 October 1991 on the basis of total incapacity and $157.10 from 13 October 1991 to 2 April 1992 on the basis of partial incapacity. Such sum of $6000 to be inclusive of all interest payable pursuant to s.19 of the compensation Court Act 1984;

b) that the respondent pay the applicant's outstanding expenses under s.60 up to the sum of $300 upon production of accounts and/or receipts;

c) that the respondent pay the applicant's costs
forthwith after they have been agreed or taxed.

According to the evidence of M r Campo, the applicant was in recelpt of social security benefits in the form of Jobsearch Allowance payments between 29 August 1991 to 12 October 1991 and between 13 October 1991 to 2 Aprll 1992 in the total sum of $7566.40. The evidence of Campo also discloses correspondence between his firm and the Department of Social Security in which there was discussed and ultimately there emerged a dispute with respect to the proper treatment of the settlement figure of $6000 already mentioned for the purposes of the relevant provisions of the Social Securitv Act 1991.

It is not necessary to give the early history of

these discussions, it will suffice for present purposes to

indicate that by letter dated 26 August 1992 the sollcltors	for the applicant wrote to the Department putting an argument
for the consideration of the Department based upon the
reasoning of von Doussa J. in two decisions as follows,
Secretarv, Department of Social Securitv v Banks (1990) 95 ALR 605 and Secretarv, Department of Social Security v afBeckett (1990) 21 ALD 79. Reference was also made to a decislon of the Administrative Appeals Tribunal constituted by O'Connor J in Re Chahoud v Secretarv. DeDartment of Social Security 1992 15 AAR 516. In their letter, the solicitors for the applicant contended that the approach taken by von Doussa J. should be preferred to that taken by OfConnor J. Reasons in support of this contention were then advanced.
The Department responded by facsmile transmission which is undated but which it appears was received on 22
September 19 92. In answer to the contentions vouched on
behalf of the applicant in the solicitor's letter dated 26 August 1992, a delegate of the Secretary in the Compensation Recovery Section rejected the arguments sought to be advanced on behalf of the applicant and in an elaborate statement of reasons, indicated the reasons why the two decrslons of von Doussa J. should be distinguished for present purposes. The letter in the form of the facsimile transmission went on to affirm the Department's original decision to recover the sum of $5617.28 on the basis of a closed period award achieved by the applicant on 25 May 1992. It was further stated by the
under s.1184 of the Social Securitv Act 1991 do not exist to delegate that it had been decided that special circumstances
the extent that would allow for a full or partial waiver of the Department's charge.
In order to understand the context in which the agitation of these legal questions arose it is necessary to refer to the relevant provlslons of the Social Securitv Act 1991. By s.1166(1) of the Act, it is provided that:

( a ) a person receives compensation i n the form o f a

lump sum; and

(b)	the person receives payments of:
(i invalid pension; or
(ii) social security benef i t ; or
(iii) sheltered employment allowance; or
f iv ) rehabilitation allowance payable i n

place o f one o f those;

for the lump sum preclusion period;

the Secretary may, by written notice to the person, determine that the person i s l iable t o pay to the Commonwealth the amount specified i n the notice. "

By s.1166(2), it is provlded that the amount specified in the notice is the "recoverable amount" and is worked out in accordance with a table there contained and subsections (3) and (4). By s.1166(3), if the person's situation is covered by item 1 or 2 in the Table the recoverable amount is equal to the smaller of:

(a) the compensation part of the lump sum; or

(b) the sum of the pension, benefit or allowance

payments made to the person for the

lump sum preclusion perlod.

By s.1166(4), there is dealt with the situation L£ the person is covered by item 3 in the table.

By section 1170(1) of the Social Securitv Act 1991

it is provided:

" I f -

(a)

a person receives a series of periodic

compensation payments; and

(b)

the person receives payments of:

(i)	invalid pension; or
(ii)	social security benefit; or

(iii) she1 tered employment allowance; or

fiv) rehabilitation allowance payable in
place of one of those;

for the periodic payments period; and

(c) those pension, benefit or allowance payments have not been reduced under section 1168;

the Secretary may, by written notice to the person, determine that the person is liable to pay to the Commonwealth the amount specified in the notice. "

The provisions of s.1170, sub-ss. ( 2 ) , ( 3 ) and (4) are the

counter-part of s.1166 sub-ss. ( 2 ) , (3) and (4).

Reference should also be made for present purposes to the provisions of s.17 of the Social Securitv Act 1991 which contains "cornpensatlon recovery definitions". For instance, it is provided by S. 17(3) that for the purposes of the Act the "compensation part of a lump sum compensatlon

payment" is:
(a)	50 per cent of the payment if the following circumstances

apply:

(i) The payment is made.. .in settlement of a claim that

is in whole or part related to disease or injury

and ;

(ii)the claim was settled elther by consent judgment

being entered in respect of the settlement or
otherwise on or after 9 February 1988; or

(b) if those circumstances do not apply so much of the payment as is, in the Secretary's opinion, in respect of lost earnings or lost capaclty to earn.

For the sake of completeness reference should also be made for present purposes to the terms of s.1184 which as I have said was mentioned in the Departmental facsimile transmission and is also the subject of a separate claim for judicial review in the present case. Under that provision it is provided that for the purposes of the relevant part of the Act, the secretary may treat the whole or part of a compensation payment as (a) not having been made or (b) not liable to be made, if the secretary thinks it is appropriate to do so in the special circumstances of the case.

Reverting to the history of the matter, it appears
from the evidence of Mr Campo that upon receipt of the

Departmental facsimile transmission which as I have said

appears to have been received on or about 22 September 1992,

counsel was briefed to advise on the success of any application for review of the decision of the delegate. Upon recelpt of counsel's advice, Mr Campo says that he received instructions from his client on 13 November 1992 to commence proceedings. Counsel was then briefed to draft process for this purpose and as I have said documentation was filed in the Court's registry on 3 December 1992.

The application for extension of time is resisted on behalf of the respondent. The basis for this opposition is first that no adequate explanation has been advanced on behalf of the applicant for the delay in the institution of the proceedings. Secondly, it is said on behalf of the respondent that there is no merit whatever in the substantive claim since the facts of the present matter fall squarely wlthln the reasoning and decision of OfConnor J in the matter of Chahoud.

Turning first to the questlon whether there has been an adequate explanation on the delay, it will be noted that a period of something over two months lapsed from the time at which the delegates decision was communicated to the solicitors for the applicant and the institution of the present proceedings.

It will further be noted that quite understandably a

perlod of almost one month lapsed between the making of the

submission on behalf of the applicant solicitors dated 26

August 1992 and the time at which the Departmental decision was communicated back to those solicitors on or about 22 September. I say this is understandable given the complexity of the legal issues in whlch at least on the face of matters appears to rise. Given that apparent complexity, I do not think it can be said that there has been delay in the institution of proceedings in the present matter which can be said to be at all of the degree which would justlfy the

description as being unreasonable.

I take into account in this connection also the apparent absence of prejudice from the point of view of the respondent. The declslon or decisions in question concern the payment of money of amounts which are not substantial and these decisions do not seem to involve any particular

difficulty in terms of policy or of an administrative

character.

The essential issue between the parties is a strictly legal one and as I see it at the moment the force to be resolved is a matter of statutory construction in application to facts which will not be in contest. In other words, this is not a case where administrative difficulties will arise if the present application is arisen nor is it a case where for instance by reason of delay there will be difficulties in the collection of evidence or the location of

witnesses or considerations of that kind. Therefore in the	exercise of my discretion I find that the explanation of the
delay proffered in the present case is a reasonable and adequate one.
I turn to the second ground of opposition and that is that the application looked at in substantive terms, simply lacks merit. In my view, there is considerable force in this in this submission. On the face of the material before me the decision of O'Connor J in Chahoud does appear to be at least analogous to the present case. On the other hand I have been informed by counsel for the applicant that it is proposed to challenge the correctness of that decision if need be by appeal to a Full Court or by the use of other appropriate
procedure by which the matter could be referred to a Full Court if this becomes necessary.
The counsel for the applicant further submitted that the reasoning of von Doussa J in the two cases I have mentioned is in point in the present case notwithstanding a submission put on behalf of the respondent that his Honour was there deallng with the legislation in an earlier form. I accept entirely that only in very special circumstances should a Court grant an extension of time if it appears that the matter in dispute between the parties raises only a question of law and that questlon 1s settled by an established line of authority.
It is true, of course, that O'Connor J although sitting in Chahoud's case as President of the Administrative Appeals Tribunal is also a member of this Court and her Honour's decisions and process of reasoning would, in the ordinary course of events, be accorded great weight and perhaps even followed by another Judge of this Court as a matter of comity (see by way of a recent illustration, the judgment of Burchett J. in Musumeci v Minister for Prima-

Industries and Enerqv (1992) 110 ALR 201 and La Macchia v
Minister for Primarv Industries and Enerav (1992) 110 ALR 201)
in which his Honour followed a decision in a similar area of
O'Loughlin J. In both matters leave to appeal was granted and
judgment in which the appeals were dismissed were given by a
Full Court this morning.

I would accept that, if the matter is settled as a legal proposition, then ordinarily there would be little point in granting leave but in my opinion that is not the present case. The decision of O'Connor J was given on 16 June 1992. I have been informed that there has been no appeal brought from that decision. However powerful the reasoning may appear on the necessarily superficial examination of the authorities that I have undertaken, it is simply not the case that her Honour's decision can be, at this point of time, described as the settled course of authority.

In my opinion, having regard in particular to the short delay involved in the present application, the extension should be granted. I order that the time for the making of the Application for an Order of Review described in the Application for Order of Review, lodged in the Registry on 3 December, be extended up to and including 26 February.

I come now to the question of costs, again I have a
discretion on this matter but, in the circumstances, I have
come to the view that, since the applicant has sought an
rndulgence from the Court, it is appropriate that the
respondent should not be out of pocket on this account. It is
fair, I think, that the applicant pay the costs of the
respondent of the present application. I order that the
applicant pay the respondent's costs of the applrcation to

extend time.

I hereby certify that this and

the preceding eleven (11) pages are a true copy of the Reasons for Judgment

Justice Gaumont	.
Associate
Date:	17 Februa