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

This matter concerned an appeal by Mr Zivkovic against the Secretary of the Department of Social Services regarding the cancellation of his Austudy allowance. Mr Zivkovic, aged 47, had enrolled in tertiary studies in 2011 and received Austudy. He failed three subjects in his first year, attributing these failures to a lack of interest and his diagnosed depression and obsessive-compulsive disorder (OCD). He subsequently switched to a different degree, but still failed subjects in 2012 and 2013, again citing his mental health conditions. Centrelink informed him his allowance would end in mid-2014, but he was told it would be extended if he enrolled in an on-campus degree. He enrolled in a Bachelor of Media degree, but his Austudy was cancelled in early 2015, contrary to his understanding that it would extend to 2017.

The primary legal issues before the court were whether Mr Zivkovic was entitled to a continued Austudy allowance based on a representation made to him by Centrelink, and whether his failed study years should be disregarded due to his illness under section 569H(7)(b)(i) of the relevant Act. Mr Zivkovic argued that he was promised an extension of his benefit to 2017 and that his failures in 2011, 2012, and 2013 were caused by his depressive illness and OCD, necessitating a recalculation and reinstatement of his Austudy for those periods.

The court first addressed the argument of promissory estoppel, finding that a representation by a government official generally cannot override a statutory requirement. It was held that Mr Zivkovic's Austudy was finite and would have expired in the normal course, and any loss resulting from reliance on incorrect information would typically be addressed through an action for common law damages. Turning to the second argument, the court examined section 569H(7)(b)(i), which requires failed study years to be disregarded if the failure was "because of" the recipient's illness. The court applied the "but for" test of causation, determining whether the failures would have occurred in the absence of illness. While a psychologist's report indicated it was not possible to determine direct causality, it was likely that Mr Zivkovic's mental illness impacted his performance, and he reported severe symptoms during the period of his failures.