WVXS and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2009] AATA 651

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 651

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2005/1060

GENERAL ADMINISTRATIVE  DIVISION		)
Re		WVXS

Applicant

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

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date31 August 2009

PlaceMelbourne

Decision The decision under review is affirmed.

..............................................

John Handley
  Senior Member

SOCIAL SECURITY – Remittal from Federal Magistrates' Court – six grounds of appeal dismissed – additional ground not contended by applicant found by the Magistrate constituted a denial of procedural fairness – decision to remit the matter for rehearing and re-determination – whether whole of application remitted or only the issue found to be an error – meaning of the matter – applicant submitted whole of matter should be reheard and sought to rely on materials which were the subject of the grounds of appeal being dismissed – decision to proceed on remittal only on the matter found to be an error – application was a review of a decision finding the applicant and his former wife were members of a couple with consequent overpayment of benefits – findings on review of the matter did not disturb previous decision to affirm

Social Security Act 1991 (Cth) s 4

Jones v Dunkel (1959) 101 CLR 298

Morales v Minister for Immigration and Multicultural Affairs (1998) FCR 374

Nation v Repatriation Commission (No 2) (1995) 37 ALD 63

Re VCG and Secretary, Department of Employment and Workplace Relations [2006] AATA 956

Repatriation Commission v Parr [2003] FCA 970

Repatriation Commission and Ors v Yates (1997) 46 ALD 487

Secretary, Department of Education, Employment and Workplace Relations v Holmes [2008] FCA 105

REASONS FOR DECISION

31 August 2009 Mr John Handley, Senior Member           

1. This decision arises out of a remittal by a Federal Magistrate in a decision made on 17 July 2008 ([2008] FMCA 628). The Magistrate then decided that an appeal lodged by the applicant against a decision made by me on 16 May 2007 ([2007] AATA 1320) should be allowed. The Magistrate decided that the decision previously made should be set aside and the matter be remitted to the Administrative Appeals Tribunal for re-hearing and re-determination according to law.

2.      The review which was the subject of my earlier decision arose out of a challenge made by the applicant to a finding of the Social Security Appeals Tribunal (the SSAT) that he was a member of a couple between himself and his former wife.  As a consequence of that finding the SSAT decided that he had been overpaid benefits under the Social Security Act 1991.  That decision was affirmed by me.

3.      The application that was heard previously was listed within a period of five days during which an application for review was also heard by the applicant's former wife against a similar decision made by the SSAT, with similar consequences.  I also affirmed the decision of the SSAT in the application brought by the applicant's former wife.

4.      In the Notice of Appeal lodged by the applicant against the decision that I previously made he relied on four grounds of appeal.  At or prior to the hearing of the appeal, the applicant relied on another two grounds.  The Magistrate found that an error or law on each of those six grounds had not been committed.

5.      The Magistrate indicated to the applicant and to the respondent's representative that she was concerned with respect to findings of fact that I made arising out of the contents of hospital records relating to the applicant's former wife which were the subject of evidence in her proceedings and which were tendered as exhibits in her proceedings.

6.      The decisions made by me concerning the applicant and his former wife were delivered consecutively and were in two parts.  Each decision contained a part summarising the evidence heard in each application.  The second part of each decision was identical and contained the reasons for decision that I ultimately made namely, that I was satisfied that each of the applicant and his former wife were members of a couple.  These decisions included a reference to the medical records relating to the applicant's former wife and findings that I made concerning them.  Those records did not form part of the applicant's case.  He was not present during the hearing of the application of his former wife nor was he aware of the evidence that she had given concerning the contents of the hospital records.  The Magistrate decided that a question of law had been raised namely, whether the applicant had been denied procedural fairness with respect to the failure to alert the applicant to the relevance of the hospital records and the evidence of his wife.  It was decided that the applicant had been denied procedural fairness.  At paragraph 93 of the decision the Magistrate decided In all the circumstances I consider that the question of law was adequately raised.  The matter must be remitted to the AAT for rehearing according to law.

7.      The application was a subject of a Directions Hearing on 9 October 2008.  Ordinarily such a proceeding would be convened prior to rehearing in relation to a matter which had been remitted following a successful appeal.  On that occasion an issue which did emerge was the ambit of the rehearing.  It was the case of the respondent that the rehearing should be confined only to the issue which the Magistrate decided constituted an error of law that is, the denial to the applicant of procedural fairness with respect to the findings I made concerning the hospital records.  The applicant, who was unrepresented during the first hearing and during the appeal, remained unrepresented.  He submitted that the matter remitted should be a complete rehearing of all matters which were the subject of evidence during the first hearing.  Mr Ginane who appeared on behalf of the respondent then submitted, in the absence of agreement between the parties concerning the ambit of the remittal, that the matter should be adjourned and he would supply to the applicant and the Tribunal written reasons in support of his submission.  I acceded to that application.  The Directions Hearing was adjourned to 17 November 2008.  In the interim Mr Ginane prepared comprehensive written submissions which were exchanged with the applicant together with a copy of the Transcript of the Directions Hearing of 9 October 2008, copies of the medical exhibits and medical records from the file of his former wife and a complete copy of the T‑documents from her application.

8.      The written submissions of the respondent confirmed those that were given orally at the previous Directions Hearing namely, that the hearing following the remittal should be confined only to the issue identified by the Magistrate as being in error as evident from the Reasons for Decision of the Magistrate.

9.      Mr Ginane drew my attention to paragraph 89 of the Reasons for Decision which are reproduced as follows:

In my view, the provision of the hospital records could have made a difference to the outcome in this case. If the applicant had been alerted to the issues, he may have been able to give a reasonable explanation of why he was shown as Ms Kozarova’s next of kin and why the telephone number of the family home was given as his telephone number. The respondent would no doubt say that the case against the applicant, even without those two aspects of the evidence, was compelling. However, that is not a matter for the respondent or the court to determine. It is a matter for the AAT to determine.

10.     In so far as Her Honour's Reasons for Decision were concerned, it was submitted that the matter over which the error of law was found was not the subject of a ground of the applicant's appeal.  Additionally, the grounds of appeal relied upon by him were dismissed and the only question of law found by Her Honour was the issue identified by her, namely, the issues which emerged from the medical records of his wife.  Thirdly, it was submitted that Her Honour decided that the error was a matter for the Tribunal to determine and that the matter was remitted to the Tribunal for rehearing and determination according to law.

11.     Mr Ginane relied on a Federal Court decision of Nation v Repatriation Commission (No 2) (1995) 37 ALD 63 at 69 where Northrop J decided, in a matter where the Federal Court had remitted the matter to the Tribunal, that the matter meant all things in dispute between the parties and . . . that was the matter remitted to the Tribunal to be heard and determined.  On appeal the Full Federal Court upheld that conclusion.  In the decision of Beaumont J, with whom the other two judges agreed, decided that if a judgement or order was ambiguous it was permissible to resort to extrinsic material including the reasons for judgement in order to interpret the remitting order.  His Honour also decided that it may be an abuse of process to re‑agitate an issue if a matter was not confined to the meaning given or implied by the order of the remitting court. 

12.     On balance therefore it was submitted in the context of the present application that the only matter in issue between the parties was the findings made arising out of the hospital records of the applicant's wife, no less because the Federal Magistrates' Court dismissed all other grounds of appeal.

13.     It was acknowledged that a contrary position was taken in the Federal Court decision in Morales v Minister for Immigration and Multicultural Affairs (1998) FCR 374 where the court then decided that the matter be remitted to the Tribunal for determination according to law.  On appeal the Full Federal Court decided that had the appeal judge at first instance intended to limit the extent of the remittal it would have made orders in those terms.  Additionally in Repatriation Commission v Parr [2003] FCA 970 a judge of the Federal Court decided that he should not constrain the ambit of matters able to be considered by the Tribunal upon remittal and further decided that it was a matter for the Tribunal to determine the extent of issues that can be considered.  In Repatriation Commission and Ors v Yates (1997) 46 ALD 487 a single judge of the Federal Court decided to remit a matter and that it should be heard and decided again . . . in conformity with the foregoing reasons . . .

14.     Unlike the above order, Her Honour did not decide in remitting this application that it should be heard and decided again.  She decided that the matter should be remitted for rehearing according to law.  As may be seen by the above the expression the matter is used sometimes ambiguously and on occasions its meaning is not obvious.  It was submitted that on balance there was nothing from the decision of the Magistrate which would indicate that the remittal should involve a rehearing of all issues, in effect, to start again.  The Magistrate decided that there was no error of law on all of the stated grounds of appeal.  The only error was upon the issue raised by the Magistrate herself concerning the findings made with respect to the hospital records and accordingly the remittal should be confined to that issue alone.

15.     When the matter was listed for argument on 17 November 2008, Mr Ginane relied on his written submissions and by way of summary he concluded that the hearing upon remittal should be confined to consideration of any additional evidence the applicant might give or call with respect only to the matter which was identified as an error on appeal.  It was contended that there would be an intolerable internal inconsistency if, on remittal, the Tribunal was compelled by an order of the Magistrate to revisit findings previously made and which it had been found on appeal not to be in error.  However it was acknowledged that there may be a finding following consideration of the evidence with respect to the contents of the hospital records that would sway the Tribunal in relation to the other evidence that has been given and that would be taken on board by the Tribunal from the previous hearing.

16.     On 17 November 2008, the applicant largely submitted that the remittal should be a rehearing of every issue that emerged during the hearing on the first occasion.  His submissions found at pages 5 and 6 of the Transcript indicate a continuing unhappiness with the decision at first instance and the reasons for that decision.

17.     On balance I was satisfied that the hearing upon remittal should be confined only to the matter which was found by Her Honour to be in error and I made that Direction.

18.     Discussion then ensued to ensure that all necessary ground work was completed before the days listed for the hearing.  Discussions were held with the applicant reassuring him that any subpoena that he would wish to issue with respect to the medical records would be issued by the Registrar and the Tribunal would facilitate service of the summons.  Arrangements would also be made before the hearing commenced to permit the applicant to inspect the records.  He was also reassured that any witnesses he proposed to call with respect to the content of the records would of course be permitted and in the event that he would wish to issue a summons the Registrar would also facilitate the issue of that document and assist him in service.

19.     Summonses were later issued for production of documents by the Western General Hospital, Victoria Police and the Victorian Ambulance Service.  Files were produced from the Western General Hospital and the Ambulance Service only.  Despite persistent requests by the Tribunal Registrar, Victoria Police did not produce its files.  The applicant and the respondent both attended the Tribunal on 1 December 2008 to inspect them and make copies.  Additionally the file of the applicant's former wife was returned temporarily from the Federal Magistrates' Court in order for copies to be made of medical exhibits that were tendered in her application.  Those copies were made available to the applicant.  (The applicant's former wife also lodged an appeal against a decision I made in her application).

20.     I eventually issued Directions to have both parties lodge and serve a statement of the evidence intended to be called including proofs of evidence of any witnesses and all documents upon which each party intended to rely.  The matter was first listed for hearing over two days on 22 and 23 January 2009 but was adjourned at the request of the applicant and re-listed on 16 and 17 March 2009.

21.     The applicant prepared written submissions and a statement of the evidence he intended to give at the rehearing.  Neither the submissions nor the statement contained any reference to any matter that the applicant intended to advance at the rehearing with respect to the medical records of his former wife and issues emerging from them.  He also lodged a list of the witnesses that he intended to call.  Most of the persons recorded were the subject of applications he made to have summonses issued to compel their attendance at the hearing at first instance.  The issue of summonses was the subject of consideration by Her Honour in the appeal before the Federal Magistrates' Court and no error of law was found.  The list also contained an intention to call the solicitor who represented his former wife in the hearing of her proceedings and two psychologists who provided reports at the request of his son Elvis which were tended to the County Court during a plea hearing in unrelated proceedings.

22.     Shortly before the rehearing the respondent lodged written submissions.  Having been served with copies of the documents lodged by the applicant (refer above) it was contended that nothing had been submitted by the applicant which referred to the ground of appeal upon which the applicant succeeded and over which I decided the rehearing would be confined.  Additionally it was submitted that the applicant appeared, by the contents of his documents to be attempting to re‑litigate matters previously heard and decided and found not to be in error upon appeal.  The witnesses identified by him had been the subject of a previous finding by me that they were of no probative value to the issues under review and to the extent that issue had been a ground of the applicant's appeal it was noted that it had been dismissed by Her Honour.  The solicitor identified in the applicant's list of witnesses had not provided a statement of his proposed evidence, contrary to the Directions that I issued, and in any event it was anticipated that even assuming his evidence could be probative in nature it was likely that solicitor client privilege would be raised.  Additionally, the two psychologists the applicant proposed to call were not the subject of any evidence during the hearing on the first occasion and their relevance to these proceedings was not the subject of any submission or witness statement, contrary to the Directions I issued. 

23.     In conclusion it was submitted that the decision which was the subject of remittal to the Tribunal should be affirmed.

24.     On the first of the two days allocated for the hearing, the applicant persisted with his application to have witnesses called being the same persons he applied to have summonses issued prior to the first hearing in this Tribunal and three additional persons being the doctors who gave evidence on behalf of his son in the County Court proceedings and the legal representative of his former wife.  After much discussion I reminded the applicant that the rehearing would be confined only to the matter that I decided in the previous Directions had been remitted.  The applicant then left the hearing room and the Tribunal precinct.

25.     In his absence there was discussion with Mr Ginane concerning the manner in which the hearing could proceed.  Whilst it was acknowledged that the Administrative Appeals Tribunal Act 1975 (the AAT Act) permitted a hearing to proceed in the absence of an applicant, it was thought, on balance, and I ultimately Directed, that the applicant should be notified (he being an unrepresented person without apparent knowledge of the provisions of the AAT Act) that the hearing could proceed and the matter could be decided in his absence. I Directed that the Registrar communicate with the applicant by telephone and by hand delivered letter that day advising him that the matter had been adjourned to the following day and would then proceed. He was also advised that if he did not then appear the matter would proceed in his absence. That letter was ultimately delivered to the applicant and he did appear on 17 March 2009 when the hearing reconvened.

26.     After the hearing commenced the respondent identified pages from the hospital files which were asserted as being relevant to the issue under review.  Copies of those pages were made available to the applicant and were ultimately received into evidence as exhibits.

27.     The applicant gave evidence.  It should however be noted, without any disrespect, that it was very difficult to comprehend the applicant's evidence.  On review of the Transcript of his evidence I still confess to some difficulty interpreting his evidence.  It would appear that the many references made by him to documents were not those that were made available to him on the morning of hearing, indeed he acknowledged that he was referring to some documents that were not part of the bundle provided at the outset (refer Transcript, page 46 and 47).  It would appear that he was relying on documents he obtained when the summonsed files were inspected and parts of them copied.

28.     Doing the best I can, (from review of the Transcript) the applicant did acknowledge that there were documents that did identify him as the next of kin of his former wife.  There were also other documents where his former wife was recorded as being separated and on some documents his first name appears and he is identified in those documents as the husband.  In some documents his children are recorded as the next of kin and there was also a document which he did not identify where it is recorded if ex husband calls he is not to be given any information.

29.     In cross-examination the applicant agreed that his case was of being separated from his former wife since April 1994.  He was then taken to a report of Western General Hospital (Ex R1) on 16 March 1998 where in the first paragraph it is reported; She described the recent separation from her former husband who was verbally abusive and stated that he had raped her the previous year.  The applicant agreed that his former wife had reported being raped in 1993 but disagreed that there had been a recent separation at or about the time that the report at Exhibit R1 was written.

30.     The applicant was then taken to Exhibit R2 being a copy of notes from the Western General Hospital Emergency Department recording the admission of his former wife on 14 November 2002.  The admitting doctor made a number of handwritten notes and at the bottom of the page it is recorded estranged from husband.  Separated but usually visits.  History of physical abuse.  It was suggested to the applicant that he had given evidence during the first hearing that he would usually visit the St Albans address.  The applicant agreed.  He said that he continued to use those premises as his postal address, that he was not living at those premises and he was moving between other premises.  (Consistent with an Order made when this matter was first heard, the former matrimonial home will be described as the St Albans address.  The applicant's former wife lives at that address).

31.     The applicant acknowledged that there was an occasion where he changed his name by deed poll (refer paragraphs 34 and 35 of previous decision).  He was then taken to an admission form of the Western General Hospital dated 17 July 2002 (Ex A1) which referred to the admission of his former wife on that date.  Part of the form requires the recording of the contact name/relationship (of the patient) and the handwritten words appear (changed name) (husband).  The applicant agreed at July 2002 he was then known by his changed name.  A telephone number is also recorded against that name and it is the telephone number that belongs to the premises at the St Albans address.  The applicant said that he did not know how his name appeared on that form but assumed that it was given by either the paramedics or the police who attended the St Albans address on 17 July 2002 where he was then in attendance when his youngest son was then arrested.  The applicant said that he did not go to the Western General Hospital with his former wife when she was admitted.  He said he did not know whether the information concerning his name and the telephone number had been given to hospital staff either by his former wife or by one of his sons.  The applicant also acknowledged that he was advised during the directions hearings before the commencement of the rehearing that he was at liberty to call any witnesses with respect to issues emerging from the medical records.  He did not intend to call either of his sons in support of his case, that he has not spoken to them about these proceedings and the young son doesn't want to be involved in anything (Transcript, page 59).  He said he had approached the hospital to make enquiries concerning the contents of the file concerning his former wife but said he was kicked out because he was not entitled to have access to it.

32.     The applicant was taken to an extract from the emergency department of the Sunshine Hospital dated 13 September 2001 (Ex R3) where he and his children are recorded as the next of kin (NOK).  The applicant is also described as the ex husband.  The applicant said that he was not at the Sunshine Hospital when his former wife was admitted on this day.  He said that since 1994 he had never taken her to any hospital or doctors and had not ever collected her and taken her home from any hospital.

33.     The applicant agreed that he is recorded as the next of kin in a Western General Hospital Emergency Department record dated 1 December 1993.  That admission occurred before separation.  The applicant said that he would not have attended hospital with her because he was then employed as a truck driver and he would have been on the road.  He said he did not know who would have given that information to the hospital and said it may have been his children or it may have been one of his neighbours (Transcript, page 62). 

34.     An admission form of the Western General Hospital of 13 September 2001 (Ex R4) records him and his children attending.  He is identified as husband (separated) as the primary carer/contact.  The applicant said that those words do appear on the form but said that I'm not believing that much on this paper.  He said he had not been the next of kin of his former wife after April 1994 and could not explain how he has been recorded in these forms as either the next of kin or the primary carer of his former wife.

35.     Some handwritten notes made by a member of the Western General Hospital staff on 14 September 2001 were completed apparently after a home visit (Ex R5).  The relevant part of the notes record (wife) was at home when we arrived.  Her ex husband was there, (wife) explained that her son called him to stay with her as they are concerned about her well being and safety.  (The identity of the applicant's former wife was the subject of a Confidentiality Order.  Her name is recorded in the hospital notes but in this decision she will be described as wife).  The applicant said that he could not recall whether he did attend the home of his former wife because the date of the hospital record was more than eight years ago.  When he was reminded that the report records that he was present when hospital staff arrived, he again said that he could not remember.  The hospital staff again attended at the home of the applicant's former wife on 16 September 2001 and in a handwritten note (Ex R7) it is relevantly recorded (wife) was not home at the time we arrived, she turned up afterward with her ex husband.  (Wife) reported that she went to party with her ex husband this pm did not feel very happy during party, felt a bit "left out" even though everyone were very nice to her.  The applicant in response to reading that part of the form and having it read to him said that he had not ever taken his wife anywhere since April 1994 and added . . . maybe she get fake cousins, sees them.  Who knows who is the ex husband?  He added just I said from '94 until this morning she had never been to the milk bar with me to get a lolly.  Additionally he said that he was not prepared to accept that the reference to the ex husband was a reference to him (Transcript, page 71) and said that it may be that she had another husband – ex husband or boyfriend or whatever (Transcript, page 69).

36.     On 6 August 1994 the applicant's former wife was admitted to Footscray Hospital.  The next of kin/person to contact is described as the applicant by his surname and having the same address as his former wife.  The relationship to patient of the person recorded as the next of kin is described as husband.  The applicant said that in other papers that he had of the same date (fourth page of R6) he is described as the ex husband or as separated.  He denied that he was living with his former wife at 6 August 1994 and said that if his former wife had not told hospital staff that she was then separated.  He said he would have been described as the husband because previous hospital records had probably been reproduced to again record him as the next of kin and as her husband.

37.     On 2 August 2002 an ambulance was called to the St Albans address and a report of that attendance is found at Exhibit R8.  The notes record that the applicant's former wife was non compliant and refused assistance from ambulance officers.  The notes also record son and husband also suggested patient continue to refuse.  Patient left in care of husband.  Later the form records patient left with husband.  Patient continually refused transport.  The form concludes patient refused.  Husband will contact 000 if assistance required.  When the applicant was asked whether he agreed the form indicated that he was present at her premises on 2 August 2002, he said that his son again has got a warrant for search of property and I was there.

38.     On 14 November 2002 it would appear that the applicant and his former wife both attended the County Court where one of their sons was detained having been charged with theft of a motor vehicle.  It appears from the contents of Exhibit R2 (refer earlier) that the applicant's former wife then collapsed at the court and suffered a shoulder injury.  She was admitted to Western General Hospital and at Exhibit R9 there is another hospital entry of the same day recording the applicant by his first name as her husband and as the next of kin.  It also records that her valuables are at her home and the word husband is written in that part of the form.  The applicant said he could not explain how his first name and identity as husband was recorded in the hospital forms because he was ejected from the courtroom, he was threatened with arrest and he did not talk to any ambulance officers.  He said that other persons must have given information to the ambulance officers for them to record that information and to give it to the hospital (Transcript, page 77).  The applicant remained emphatic that he did not give any information to any persons that would cause the entries to be made in the hospital records of that day and said they knew probably by words like, ex husband or ex animal or whatever.  There somebody – yes probably mentioned something in the courtroom – not me because I did not cooperate with anybody there.  He added that he could not comment on the suggestion put to him that the information contained in the form might have come from his former wife or from his son who was recorded in Exhibit R9 as being in attendance with her at the hospital.

39.     On 7 November 2002 the applicant's former wife was admitted to Sunshine Hospital and gave a history then of having been assaulted by her husband.  The history relevantly records (Ex R10):

Assault by husband tonight.  This is second time.  Recently returned from Macedonia (7/52) from father's funeral.  Discovered only $400 in account.  Dispute with husband tonight – he wanted to get back together.  Currently separated but he still comes and lives with her (has girlfriend) . . . Tonight he hit her in the head.  No LOC and twisted right arm. 

40.     The second page of that admission document is Exhibit A3 and relevantly it records Police – husband will be released tonight but under intervention and they will arrest him if he returns.  When asked whether he assaulted his former wife on 7 November 2002, the applicant said Yes I assault her a million times (Transcript, page 81).  When asked whether he wanted to get back to her, he said I wasn't her husband at the time.  When it was suggested to him that there were numerous occasions that he stayed at the premises occupied by his former wife after April 1994, the applicant said No I never went to house.

41.     In re-examination the applicant referred to a report from the Sunshine Hospital addressed to the treating physician of the applicant's former wife dated 8 November 2002 (Ex A2) where it is recorded She is currently separated from her husband and awaiting divorce papers to settle.  The applicant also relied on an entry of the Western General Hospital of 21 September 1994 (Ex A4) where a history then taken includes separated lives with son.

42.     The applicant also relied on notes taken by hospital staff on 14 September 2001 (Ex R5).  It would appear that staff were counselling the applicant's former wife with respect to an allegation previously of having been raped and the notes record she described to Dr Kwong and her GP Dr Irani as her main supports and only other support is a neighbour who is also a close friend.  Her children have also been supportive but she does not speak to them about her feeling with regard to assault.  The applicant submitted that those notes should permit an inference that his former wife was being cared for by their children, that he could not be a carer because he and his former wife had separated and it was worthy to note that there was no reference to him being available to support her yet there were references to other persons who were supporting her namely, her doctors, the children and a neighbour.

43.     The applicant then relied on a number of documents which he obtained when the file of his former wife from the Western General Hospital was inspected prior to the hearing.  Most of those documents record his son Elvis as the next of kin and there are many references to the applicant being the ex husband.  The applicant relied on those notations as an indication of him having separated and not having any relationship with his former wife.  However he noted that by reference to the date of some of the documents there were obvious errors, by recording Elvis as the next of kin because on some of those dates, his son was serving a term of imprisonment (refer Ex A11 and A15).

summary of medical records

44.     Appended to this decision is a summary of relevant parts of pages of the medical records which were relied upon by both parties and examined in this hearing.  The relevance of the entries in the records which have been included in the summary as annexed will be the subject of comment later in these reasons.

conclusion and reasons for decision

45.     The overpayment alleged against the applicant concerned five discreet periods between 21 March 1995 (incorrectly recorded in paragraph one of the previous decision as 1985) and 29 June 2001.  The records provided from the Sunshine and Western General Hospitals and the Ambulance Service concern the treatment of the applicant's former wife during the period 1978 to 2005.  Both parties relied on documents within those files concerning the period 6 August 1994 to 19 November 2005.  Reference was also made by the parties to medical records which were tendered in the application before this Tribunal in the proceedings brought by the applicant's former wife.  Neither party submitted that the enquiries of the records should be confined only to the five periods of alleged overpayment.  The absence of such submissions was appropriate and there were sound reasons in my view to broaden the enquiry.  Those reasons included an extensive examination of the relationship between the applicant and his former wife so far as may be determined by the documents.  The documents also permitted an enquiry of some intimacy which was absent in the proceedings brought by the applicant when first heard by this Tribunal and which was the subject of criticism by Her Honour on appeal.  For reasons which will also emerge the contents of the documents and the evidence given by the applicant have permitted me to make findings as to whether the decision previously made should be upset or whether that decision is fortified by a finding that the documents and the evidence concerning them point to the applicant having a marriage like relationship with his former wife.  It is also worthy to record at this stage that there would appear not to be any controversy between the applicant and his former wife each alleging separation at 8 April 1994.  There would also appear to be no doubt, having regard to documents lodged, that they were both divorced in July 2006.  Accordingly, they were married, to each other, until July 2006.

46.     I should also record at this stage and by way of acknowledgement of the criticism in the findings made by Her Honour that prior to the hearing of this application, the Registrar arranged for a summons to be served on the Western General Hospital to produce the entire file of the treatment given to the applicant's former wife.  Arrangements were also made to have copies of relevant medical records from the documents exhibited in the AAT proceedings brought by the applicant's former wife.  Those documents were held by the Federal Magistrates' Court having been lodged by the AAT Registrar in preparation for the hearing of the appeal brought by her.  Prior to the hearing of these proceedings the applicant inspected those records and was invited to, and did, make photocopies of parts that he determined were relevant to his case.  When the hearing eventually commenced, arrangements were made by the respondent to make available to the applicant a complete set of the documents over which it was intended to examine him.  The applicant had most of those documents or had been entitled to extract them from the file on the occasion when he inspected the file.  I am therefore satisfied that the applicant had every opportunity prior to the hearing of this application to have access to the records, to prepare his case and to be prepared to meet the case brought against him by the respondent.

47.     In the Reasons for Decision that I published when this matter was first heard, I made a number of findings with respect to the contents of the medical records which satisfied me, in addition to the other findings made, that the applicant and his former wife were in a marriage like relationship.  Two of those issues were the telephone numbers recorded in various hospital documents and the recording of the applicant as the next of kin or contact person.

48.     When the matter was reheard the volume of medical records was considerably greater than previously and necessarily, there was an extensive examination of them by both the applicant and the respondent representative.

49.     Having regard to the intimacy of the enquiries made, and an examination of the documents themselves, I have concluded that much remains unanswered, principally because of the absence by either party to call any person or persons from the Western General or Sunshine Hospitals who could interpret the processes or protocols with respect to the preparation of internal hospital documents and the manner in which information is received and recorded on the forms.  Additionally, the applicant again failed to call either of his sons who are mentioned on a number of occasions throughout the hospital documents.  His failure to call his children when the matter was first heard was the subject of criticism by me and I did then draw an adverse inference having regard to the decision of the High Court in Jones v Dunkel (1959) 101 CLR 298 (refer paragraph 43 of previous decision). I again draw that inference. If his children had appeared and given evidence in these proceedings, or at the very least provided a statement or proof of evidence, some additional information may have been available to assist in comprehending the entries in hospital forms.

50.     In point of time, the first hospital record examined was on 6 August 1994 (Ex R6) where the next of kin (NOK) or contact person is the applicant.  I make that finding despite the surname being recorded would apply to each of the applicant's sons but it is preceded by the title Mr.  There after most of the hospital documents refer to the applicant's son Elvis as the NOK or contact person which suggests that some information was given to the Western General or Sunshine Hospitals to cause that entry to be made and that person identified by first name.  Most of the hospital documents thereafter contain data common to most of the other forms being the name of the applicant's former wife, her address, telephone numbers (refer later), medicare number and the NOK/contact person, being Elvis.  Those entries are typed or printed.  The remainder of the forms are handwritten, presumably by the persons who admitted the applicant's former wife or doctors or nurses who attended.  But on balance I think that little reliability can be attached to the recording of Elvis as the NOK/contact person because as was learnt when this matter was first heard, and again confirmed by the applicant on the rehearing, there were at least three occasions when Elvis was not present at the hospital because he was in jail (refer Ex A11, A15 and R3 being 17 January 2004, 30 September 2003 and 13 September 2001) and the evidence of the applicant at page 95 of the Transcript.  I have no choice but to infer that at least on those occasions and perhaps on others the hospitals continued to rely on the data that it had stored and which was printed on the forms prior to the handwritten entries by other hospital personnel.  There is nothing from the forms, subject to the qualifications I record below, which would satisfy me that an enquiry was made upon each admission by hospital staff to satisfy them that Elvis should be recorded as the NOK/contact person.  There is nothing from the forms or the handwritten entries which would permit me to conclude, on each occasion the applicant's former wife was admitted, that she gave the hospital persons her name, address, medicare number, UR number and telephone numbers and provided an NOK or contact person.  The apparent extent of the distress of the applicant's former wife as evident from the handwritten notes on many occasions where she was admitted suggests to me that it is more than likely that data of that type was stored by the hospital and printed on each occasion that an admission form or other like document was printed and made available to hospital personnel immediately prior to clinical information being recorded.  The distress and symptoms of the applicant's former wife as clinically recorded suggest that she would not have the composure or clarity of thought permitting her to give the information recorded in the forms.

51.     It is also worthy to note that despite an NOK/contact person frequently being recorded and that person frequently being the applicant's son Elvis, there are very few entries in the handwritten notes on any of the exhibited documents where any person was present at her admissions.

52.     There were a few forms where there were handwritten entries recording the NOK/contact person in addition to the typed entry of Elvis as the NOK/contact person.  That suggests to me at least two things namely,

(i)the identity of those persons recorded by handwriting was obtained either from those persons or the applicant's former wife by hospital staff on admission; and

(ii)the data printed on the forms was checked either with the applicant's former wife or with other persons present at least on the occasions of those admissions and probably on others.  The difficulty of course in reaching any firm conclusions about these matters is the absence of evidence with respect to hospital practises.

53.     On balance therefore I draw a strong inference that when each hospital form is printed at or about the time the applicant's former wife was admitted, the data recorded from previous admissions would again be printed on those forms unless altered and then, having regard to the distress of the applicant's former wife, by persons who were present.  Even on occasions when there were handwritten entries, they did not become part of the stored data.  For example, some of the admissions in 2001 record the two sons and the applicant as the NOK/contact person by handwriting but later forms continue to print Elvis, only, as the NOK/contact person.

54.     There were some occasions where the applicant was recorded in hospital forms as the NOK/contact person either by being recorded by his first name (before and after he changed his names) or by the title Mr.  That title might appear to be ambiguous because it could also refer to either of the applicant's sons but on the occasions that they are recorded as the NOK/contact person they are recorded by their first names.  The fact that the applicant is recorded in the hospital forms as the NOK/contact person suggests that information was given to the hospital by someone.  Whoever that person was, and it could be either the applicant or his former wife or his children or anyone else, that person, I think it can fairly be presumed, was aware of a continuing association between the applicant and his former wife.  That is to say, that person was not of the belief that the applicant and his former wife were living separately and apart on a permanent or indefinite basis.  It is unlikely in my view that should such a belief be held that the applicant would not be notified to the hospital as the NOK/contact person.  Indeed there is one entry in the hospital records which would suggest that the basis of the relationship between the applicant and his former wife was not understood to be a permanent or indefinite separation (refer emergency record of 7 November 2002 – Exhibit R10 – dispute with husband tonight – he wanted to get back together.  Currently separated but he still comes and lives with her (has girlfriend)).  Three months previously an ambulance officer recorded that the applicant's former wife was left in his care and was apparently advised by the applicant that if his former wife required assistance that he would contact the emergency telephone number 000 (Ex R8).  Whilst it might be thought that their relationship was dysfunctional and there were many elements pointing to an absence of harmony these two examples (and the many other matters referred to below) do not satisfy me that the applicant and his former wife were living separately and apart on a permanent or indefinite basis.

55.     A similar theme with respect to the contents of hospital records may be observed with respect to the telephone numbers that were recorded.  On the occasions where the applicant was recorded as the NOK/contact person, the telephone number of the St Albans address was given as his telephone number.  That was despite the applicant giving evidence that he did not reside at those premises.  On other occasions it would appear from the forms that that telephone number changed and the changed number was recorded against the applicant as his contact number on those occasions where he was recorded as the NOK/contact person.  Neither party referred to those entries during the rehearing of this matter.  The applicant especially had every opportunity to either give evidence or make submissions on those matters especially because it was an issue that I referred to in the reasons first published.  Accordingly I again conclude that representations to the hospitals of the ability to contact the applicant at a telephone number in premises occupied by his former wife is an indication that he was not living separately and apart from her on a permanent or indefinite basis.

56.     It is worthy to note that the applicant and his former wife were not divorced until July 2006.  It follows therefore that until that time they were lawfully married to each other.  The applicant did not make the application for divorce.  Those proceedings were initiated by his former wife.  The legislative criteria for determination of whether persons are a member of a couple within s 4 of the Social Security Act 1991 (the Act) apply to persons who are married to each other and persons who are not legally married to each other (refer Secretary, Department of Education, Employment and Workplace Relations v Holmes [2008] FCA 105 at paragraph 15).

57.     The medical records demonstrate the applicant's former wife being admitted to hospital on many occasions because of abuse or violence committed against her by the applicant.  Whilst marriage might be considered to be a sense of union (refer Re VCG and Secretary, Department of Employment and Workplace Relations [2006] AATA 956) it does not necessarily always involve a union of mutual love, respect, harmony or common purpose nor is it necessarily a relationship that is enduring or satisfying. The relationship of marriage sometimes involves unhappiness or unpleasantness and, regrettably, acts of violence. Such conduct is of course abhorrent especially when it is committed by one member against the other who may be vulnerable. But despite the abuse and violence by the applicant upon his former wife, there is much to suggest by the hospital records that the applicant was not living separately and apart from his former wife on a permanent or an indefinite basis. There probably were occasions where he was living separately from her but there were also occasions as evidenced by the hospital records of him acting or behaving in a manner which would be suggestive of a relationship which was marriage like for example:

(i)14 September 2001 – applicant was called to the house because of concern about the safety and well being of his former wife (Ex R5);

(ii)16 September 2001 – wife reporting that she had been to a party with her ex husband (Ex R7);

(iii)17 July 2002 – applicant being recorded as NOK/contact person when former wife admitted with emotional upset following arrest of Elvis (Ex A1);

(iv)2 August 2002 – report of ambulance officer leaving former wife in care of husband with advice to husband to contact emergency telephone number if assistance required (Ex R8);

(v)7 November 2002 – dispute with husband – he wanted to get back together.  Currently separated but he still comes and lives with her (Ex R10);

(vi)14 November 2002 – husband not present at admission but notified.  Valuables of ex wife left with or at home husband (Ex R9);

(vii)14 November 2002 – son is in attendance at admission but husband notified (Ex R9);

(viii)14 November 2002 – estranged from husband, separated, but usually visits (Ex 2).

58.     On balance therefore, by regard to the medical records, and without disregarding the acts of violence by the applicant upon his former wife, I am satisfied that at all relevant times they were members of a couple, they were married to each other and they were not living separately and apart from each other on a permanent or indefinite basis.

59.     The apparent frequency of the applicant's attendances at the matrimonial home, as evidenced by the hospital records when added to the other circumstances and occasions of him attending those premises and by the conduct generally of both he and his former wife as recorded in the Reasons following the first hearing satisfies me that the decision previously made by me should not be upset.

60.     Her Honour decided that a review of the evidence over which she decided the applicant had been denied procedural fairness could have made a difference to the conclusions that I previously reached (refer decision of Federal Magistrates' Court at paragraphs 88 and 89).  Those comments are of course correct.  Having heard evidence with respect to the extensive medical records produced and examined, I am satisfied that the decision that I previously made should not be disturbed and should again be affirmed.

I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Mr John Handley, Senior Member

Signed:         Grace Carney Personal Assistant

Date of Hearing  16 and 17 March 2009
Date of Decision  31 August 2009
Solicitor for the Applicant          Self Represented
Counsel for the Respondent     Mr P Ginane
Solicitor for the Respondent     Ms P Heffernan, Australian Government Solicitor

Appendix to the Decision of WVXS and Secretary Department of Families, Housing, Community Services and Indigenous Affairs delivered on 31 August 2009 (refer paragraph 44 of the Reasons for Decision).

Date	Hospital/Doctor/Ambulance	Document Type	Exhibit No.	History	Person Attending?	NOK/* Contact person
6 August 1994	Western	Admission form	R6	Chest pain	N/K	Mr WVXS
6 August 1994	Western	Clinical Notes	R6	Central chest pain . . . under stress +++ recent separation – ex husband verbally abusive (Refer Exhibit R1)	N/K
21 September 1994	Western	Emergency record	A4	Separated, lives with son.  This PM, saw husband became upset	N/K	Nil
14 March 1995	Western	Admission form	A22	Chest pain – anxiety related . . . domestic dispute	N/K	Elvis
14 March 1995	Western	Nurse's Note	A5	If (former wife) ex husband (Steven) calls he is not to be given any info.  Her sons Elvis & Steven can be given info.	N/K	Nil
3 May 1995	Western	Emergency notes	A6	Patient lives with her son (16 yrs); separated from husband	N/K	Nil
3 May 1995	Western	Admission form	A7	Depression	N/K	Elvis
3 May 1995	Dr Walby	Clinical notes	A8	. . .Separated from husband for no. of years (not divorced . . . lives with 16 yo son . . .(he blames her for husband leaving) another son (20 yo) lives with estranged husband . . . This am sheriffs officers attended (wife) home to repossess her vehicle.  Apparently husband has not been keeping up repayments.	N/K	Nil
3 May 1995	Western	Emergency record	A21	Collapse post emotional upset	N/K	Elvis
19 November 1995	Western	Emergency record	A19	Raped 18 months ago; depression; Domestic problems; . . . patient has had increasing family problems & depression; Sherriffs officer attended executing a warrant . . . patient was seen to collapse in the street . . . neighbours rang for ambulance	N/K	Elvis
19 November 1995	Western	Emergency record	Exhibit A in application of former wife	Upset – chest tightness	N/K	Elvis
3 January 1997	Western	Emergency record	A20	. . . depression	N/K	Elvis
16 March 1998	Western	Report (to solicitors)	R1	. . . 6 August 1994 – Central chest pain . . . she described recent separation from her former husband who was verbally abusive . . . On 14.3.95 . . . attended . . . following a domestic dispute . . . her husband came to the house . . . and started arguing with her . . . (refer Ex R6)
15 April 1998	Western	Admission form	A18	Migraine	N/K	Elvis
15 August 1999	Western	Emergency record	A17	Pain in arm (upper) left	N/K	Elvis
13 September 2001	N/W Mental Health	Registration Form	R4	Nil – patient recorded as separated	N/K	Steven Elvis husband (all 3 recorded as NOK & Primary Carer)
13 September 2001	Sunshine	Emergency record	R3	. . . brought in by ambulance . . . suffered trauma today, son taken away by police.  Collapsed . . .	N/K	Elvis husband Steven
14 September 2001`	N/W Mental Health	Notes of home visit	R5	. . . (wife) was at home when we arrived.  Her ex-husband was there, (wife) explained that her son called him to stay with her as they are concerned about her wellbeing & safety . . .	Applicant
16 September 2001	N/W Mental Health	Notes of home visit	R7	(Wife) was not at home at time we arrived, she turned up afterward with her ex husband.  (Wife) reported that she went to party with her ex husband this P.M. did not feel very happy during party, felt a bit 'left out' . . .
17 July 2002	Sunshine	Emergency Record	A1	Emotional upset; police doing warrant search of house & arresting son	'son'	Elvis
17 July 2002	Ambulance	A1	Anxious; upset; police entered premises	N/K	husband (Husband)
2 August 2002	Ambulance	R8	. . .Pt. anxious +++, yelling & screaming . . . to be taken to hospital Pt refused (doctors contacted) both suggested hosp.  Pt refused again son + husband also suggested Pt continued to refuse.  Pt left in care of husband . . . husband will contact 000 if assistance required.	'son' 'husband'
7 November 2002	Sunshine	Emergency record	R10	Husband in police custody . . . Assaulted by husband tonight.  This is 2nd time . . . dispute with husband tonight – he wanted to get back together.  Currently separated but he still comes & lives with her (has girlfriend) . . . tonight he hit her in her head.  No LOC & twisted R arm.	N/K	Elvis
7 November 2002	Sunshine	Clinical notes	A3	. . . husband will be released tonight but under 'intervention' & they will arrest him if he returns	'son'
8 November 2002	Dr Ming	Report	A2	Admitted to ED tonight after being physically assaulted by her husband . . . she is currently separated . . .	'son'
14 November 2002	Western	Emergency observation chart	R9	Nil NB – NOK – husband – Notified, not present - valuables – at home (husband)	'son'	NOK (Husband) husband
14 November 2002	Sunshine	Emergency record	R2	. . . estranged from husband.  Separated but usually visits.  History of physical abuse	N/K	Elvis
23 May 2003	Western	Observation chart	A13	. . . lives with:  son 25 year old . . . 45 year old female; distressed tonight by ex husband who left in temper . . .	N/K	Nil
23 May 2003	Sunshine	Emergency record	A14	. . . chest pain . . . started tonight . . . after distressing phone conversation & argument with ex husband	N/K	Elvis
30 September 2003	Ambulance	A16	Chest pain	N/K	Nil
30 September 2003	Western	Admission form	A15	Anxiety	N/K	Elvis
22 December 2003	Sunshine	Report (to Dr Irani)	Exhibit A in application of former wife	She still experiences symptoms consistent with anxiety & stress, particularly when her ex husband comes around, she develops palpitations & chest tightness
6 January 2004	Dr Holt	Report	A12	. . . She feels comfortable & safe when presenting to hospital as she is alone at night in her home . . .	N/K	Nil
17 January 2004	Western	Admission form	A11	Anxiety	N/K	Elvis
26 February 2004	Sunshine	Emergency record	Exhibit A in application of former wife	Domestic arguments with husband last night.  Attended by police.  Apparently husband prevented her from calling MAS earlier by taking away pt's mobile.	N/K	Steven
26 February 2004	Ambulance	A9	Steve	Steve
26 February 2004	Western	Case Co‑Ordinator's notes	A9	Patent presented after alleging D.V. from ex husband today . . . ex husband does not live with patient . . . separated from husband 'many years ago' – 1994	N/K	Nil
26 February 2004	Western	Admission notes	A10	Domestic argument with husband	N/K	Nil

*     In this Appendix, where the records identify the applicant by name, he will be referred to as either Mr WVXS as recorded or husband where he is identified by his first name only.