FEDERAL COURT OF AUSTRALIA

Spires v Secretary Department of Family & Community Services

[2002] FCA 578

DARREN SPIRES v SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

D.4 of 2002

MANSFIELD J

23 MAY 2002

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application for an extension of time to appeal from the decision of the Honourable Justice O’Loughlin given on 6 February 2002 be refused.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant seeks an extension of time within which to appeal from the decision of Justice O’Loughlin given on 6 February 2002.  The time within which an appeal might have been instituted under O 52 of the Federal Court Rules expired on 27 February 2002:  O 52 r 15(1)(a).  Order 52 r 15(2) permits the Court or a judge “for special reasons” to give leave to file and serve the notice of appeal at any time.  The meaning of the expression “special reasons” was addressed in Jess v Scott (1986) 12 FCR 187 at 195 as indicating simply that the reasons upon which the Court may act are such as to distinguish the case from the usual course, that is where there is a ground which justifies departure from the general rule in the particular case.  It is relevant, in my judgment, to have regard inter alia to the importance of the question sought to be raised by the proposed appeal, the question of whether there is any arguable question to be raised in the proposed appeal, and the explanation for the delay.  Neither the applicant nor the respondent have raised other matters for consideration in this particular matter, although each case must necessarily be considered on its merits.

2                     The decision in respect of which an extension of time within which to appeal is sought was a decision on appeal from the Administrative Appeals Tribunal (the Tribunal).  An appeal from the Tribunal is restricted to an appeal on a question of law:  s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).  It is appropriate, therefore, to address first the decision of the Tribunal.

3                     The applicant has been in receipt of disability support pension under the Social Security Act 1991 (Cth) (the SS Act) for many years.  On 24 March 2000 he applied for a pension education supplement (PES), upon the basis that he intended to pursue a course of study at the Northern Territory University (NTU).  Section 1061PA of the SS Act provides the qualifications for a PES, relevantly that the recipient is undertaking qualifying study.  The expression “undertaking qualifying study” is then defined in s 1061PB of the SS Act.  Relevantly, again, a person is undertaking qualifying study if the secretary is satisfied that that person is enrolled in a course of education at an educational institution:  s 1061PB(1)(a)(i).  On 4 April 2000 the application for a PES was granted.  The applicant enrolled in Semester 1 of 2000 with the NTU.  He did not enrol in Semester 2 of 2000 nor did he attend any lectures nor did he do any study during Semester 2 of 2000.  However, he continued to be paid PES until 21 November 2000.  Semester 1 of 2000 ended on 23 June 2000.  Between 24 June 2000 and 21 November 2000, the applicant was paid $671.82 by way of PES.  The PES benefit was cancelled from 21 November 2000 and a delegate of the respondent decided that the applicant should be required to repay to the Commonwealth $671.82 as a debt due to the Commonwealth, that being the amount of PES paid to which it was judged that the applicant was no longer entitled, having not been enrolled in a course of education at an educational institution from 24 June 2000.

4                     The Tribunal on 23 October 2001 upheld the decision that the applicant be required to repay to the Commonwealth $671.82 as a debt due to the Commonwealth.  Apart from determining whether, in fact, the applicant had been entitled to the PES during the period from 24 June 2000 to 21 November 2000, the Tribunal was also required to consider whether circumstances existed in which the right of recovery of that debt should be waived.  Section 1237AAD of the SS Act entitles the secretary (and on review the Tribunal) to waive the right to recover all or part of a debt if the secretary is satisfied (relevantly) that there are special circumstances (other than financial hardship alone) that make it desirable to waive the debt and that it is more appropriate to waive than to write off the debt or part of the debt.  The Tribunal’s reasons for not acceding to the applicant’s alternate contention that the debt should be waived, are laconic.  It said:

“There were no circumstances sufficiently special about the applicant’s case to justify waiving the right of the Commonwealth to recover the debt.”

5                     As noted above, an appeal lay from that decision on a matter of law only to the Court.  The appeal to the Court identified the following grounds:

“·       The T documents was a one-sided affair, there was no discovery process.

·         The member erred by not making a thorough examination of all matters relevant to the investigation.

·         The member erred as he did not ensure that each party to the investigation was given a reasonable opportunity to present a case.”

The judge at first instance, as he records in his reasons for judgment, explained to the applicant, who appeared in person on that appeal and on this motion, that the role of the Court is a limited one.  He said:

“… If the Federal Court is of the opinion that … the Tribunal has committed an error of law, it is within the jurisdiction of the Federal Court to intervene and, in appropriate cases, to identify the error and to send the matter back to the Tribunal for reconsideration.  If on the other hand, the Tribunal makes a mistake of fact or exercises a discretionary power and the Federal Court is of the opinion that the discretion was exercised in a manner contrary to the way in which the judge may have exercised that discretion, he or she is not entitled to interfere if the discretionary power was one which was open to the Tribunal.  In like manner if the Federal Court is of the opinion that a mistake of fact was made, the Federal Court cannot intervene unless the mistake of fact was of such a nature that it is transformed into an error of law.”

6                     No error of law was discerned in the Tribunal’s decision that the applicant had not been entitled to receive the PES for the periods 23 June 2000 to 21 November 2000.  The facts upon which that determination were made were, in reality, not in contest.  The real issue was the reasons why the debt which thereby arose should not be waived.  The learned judge at first instance referred to what he called “the very complicated version of the facts” presented by the applicant explaining the difficulties that he has faced due to his impairment, his perceived troubles with officers of the respondent, the problems he had in attending classes because of other commitments, and the like.  His Honour said, correctly in my view, that it was not for the Court to decide the merits of that claim.  It was for the Court to consider whether the discretionary power exercised by the Tribunal adversely to the applicant, that is its decision that there were not special circumstances such as would lead it to waive the repayment of the debt, was exercised in a way which involved an error of law.  His Honour was not satisfied that that was the case.

7                     Consequently, the appeal from the Tribunal to the Court was dismissed.

8                     The application for extension of time to file and serve a notice of appeal was accompanied by a draft notice of appeal.  It does not identify any grounds upon which it might be argued that the applicant has potentially a reasonably arguable ground of appeal.  The only ground specified is that “the learned judge erred by dismissing mitigating events as irrelevant”.  In my view, that does not give rise to any potentially arguable ground of review.  It is not correct that the learned judge at first instance dismissed mitigating events as irrelevant.  As his Honour sought to point out in his reasons for decision, those mitigating events did not alter the underlying facts upon which it was clearly established that the applicant was not entitled to the PES which he received on and from 24 June 2000 to 21 November 2000.  His Honour did not then discount those mitigating factors in the way asserted by the applicant in deciding that no error of law was involved in the Tribunal’s exercise of its discretionary judgment under s 1237AAD of the SS Act.  His Honour decided, as I read his reasons, that notwithstanding those considerations, they did not demonstrate that the Tribunal had erred in the law in the way in which it had exercised that discretionary judgment.

9                     Apart from the asserted ground of appeal, the applicant did not adduce any evidence initially to explain why he had not appealed within time, or to explain in any more detailed way why the decision of the learned judge at first instance was erroneous.  In oral submissions, he developed both those matters.  Counsel for the respondent did not accept those claims without evidence.  I accordingly adjourned the hearing and gave the applicant leave to file and serve further affidavit evidence and further written submissions in support of his claims and gave the respondent leave to file and serve any responsive material.

10                  Mr Spires subsequently filed an affidavit, accompanied by a number of documents.  That material did not seek to explain to any extent why he had not appealed from the decision of O’Loughlin J within time.  It is not clear whether he understood the desirability of doing so by affidavit.  In the circumstances, I do not propose to refuse his application for an extension of time to appeal for that reason.

11                  The further material explained in more detail why he had not enrolled in Semester 2 of 2000 at the NTU.  He intended at the start of 2000 to study during the whole of that year.  He was ineligible to do so as he had been assessed as failing two of the units he had

undertaken in Semester 1, because he had not attended compulsory practical tests in these units.  He says he had been unable to attend these tests because of commitments with the respondent.  He also had, and has, other ongoing commitments due to proceedings he has instituted associated with his disability.  The fact remains, however, that he did not enrol in Semester 2 of 2000.  He was not, therefore, eligible to receive the PES after 24 June 2000.  The additional material tends to confirm the matters reported to O’Loughlin J.  It does not in my judgment advance his prospects of showing on appeal that O’Loughlin J erred in concluding that the Tribunal was not mistaken in law in the exercise of its discretion not to waive the repayment of the debt which then arose.  I do not think he has any such prospects.

12                  The applicant has, therefore, failed to persuade the Court that there are special reasons why the application for an extension of time to appeal should be allowed.  The application is refused.

Associate:

Dated:              15 May 2002