FEDERAL COURT OF AUSTRALIA

Tomson v Minister for Finance and Deregulation [2013] FCA 664

THE COURT ORDERS THAT:

1.    The time within which the originating application may be filed be extended to 31 August 2012.

2.    The decision of the respondent made on 14 May 2012 be set aside.

3.    The applicants’ application made to the respondent on 27 February 2012 be remitted to her for further consideration in accordance with law.

4.    The respondent pay the applicants’ costs.

Note:    Settlement and entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Peter and Kim Tomson brought these proceedings challenging the decision made by a delegate of the Minister for Finance and Deregulation on 14 May 2012 to refuse to consider their application for payment, known as an “act of grace payment”, under s 33(1) of the Financial Management and Accountability Act 1997 (Cth) (the FMA Act). They sought orders under s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) quashing the decision, referring their application back to the Minister for further consideration. They also sought, if required, an extension of time in which to make the application.

2    Mr and Mrs Tomson claimed that, for the purposes of s 5(1)(e) of the ADJR Act, the decision was an improper exercise of the power conferred by s 33(1) of the FMA Act on two bases. Those were first, the decision resulted from an inflexible application of a policy that no earlier decision would be reconsidered unless an applicant either could show that the decision-maker had made a serious mistake or provided relevant new evidence, regardless of the merits of the application (s 5(2)(f) of the ADJR Act), and, secondly, the decision was so unreasonable that no reasonable person could have so exercised the power (s 5(2)(g)). They also contended that the decision was otherwise contrary to law (s 5(1)(j) of the ADJR Act) and an exercise of the power in s 33(1) that constituted an abuse of the power (s 5(1)(e) and (2)(j) of the ADJR Act).

The statutory context

3    Under s 62(1) of the FMA Act, the Minister had power to delegate to any official in her department her powers or functions including those in s 33. The delegate was considering whether to exercise the power in s 33 of the FMA Act which provided as follows:

“33    Finance Minister may approve act of grace payments

(1)    If the Finance Minister considers it appropriate to do so because of special circumstances, he or she may authorise the making of any of the following payments to a person (even though the payment or payments would not otherwise be authorised by law or required to meet a legal liability):

(a)    one or more payments of an amount or amounts specified in the authorisation (or worked out in accordance with the authorisation);

(b)    periodical payments of an amount specified in the authorisation (or worked out in accordance with the authorisation), during a period specified in the authorisation (or worked out in accordance with the authorisation).

Note:    See also subparagraph 65(2)(a)(ia) (which allows regulations to be made about the Finance Minister considering a report from specified persons before authorising a total amount that is more than a specified amount).

(3)    Conditions may be attached to payments under this section. If a condition is breached, the payment may be recovered by the Commonwealth as a debt in a court of competent jurisdiction.

Note:    Act of grace payments under this section must be made from money appropriated by the Parliament. Generally, an act of grace payment can be debited against an Agency’s annual appropriation, providing that it relates to some matter that has arisen in the course of its administration.” (emphasis added)

4    Relevantly, s 5(1)(e) of the ADJR Act provided that a ground for an order of review was that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which the decision purported to be made. The reference to an improper exercise of a power included relevantly, first, an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of a particular case (s 5(2)(f)) and, secondly, an exercise of a power that was so unreasonable that no reasonable person could have so exercised the power (s 5(2)(g)).

Background

5    In 1987 Mr and Mrs Tomson were operating two retail clothing shops in Cabramatta and Bankstown in Western Sydney. They imported all their stock for sale in the shops. Between July 1987 and March 1988 the Australian Customs Service (Customs) seized five shipments of clothing stock that Mr Tomson had imported into Australia. Customs suspected that Mr Tomson had undervalued the goods in his applications to import them in order to defraud the revenue. Customs referred their concerns to the Commonwealth Director of Prosecutions (the DPP).

6    In the meantime, after Mr Tomson’s attempts to import stock had been blocked by Customs’ seizures of his overseas acquisitions, he had to buy what he claimed was more expensive, locally produced stock to sell in the shops. Mr Tomson claimed that the profitability of the two shops in which he and his wife worked was adversely affected.

7    In February 1990, the DPP advised Customs that there was insufficient evidence to justify any prosecution of Mr Tomson under the Crimes Act 1914 (Cth). However, the DPP suggested that there was potentially sufficient evidence to warrant commencing proceedings for offences under the Customs Act 1901 (Cth). The DPP recommended that Customs refer the matter to the Australian Government Solicitor. Ultimately, the Australian Government Solicitor advised Customs that there was a prima facie case for prosecutions under the Customs Act.

8    Between July 1992 and September 1992, Customs commenced prosecutions in the Local Court of New South Wales by laying informations against Mr Tomson on multiple counts under the Customs Act. The informations relied on the then provisions in s 255 of the Customs Act that permitted the prosecutor to aver matters of fact and of mixed fact and law. The averments were deemed to be prima facie evidence of the matters avered.

9    After hearing the Local Court proceedings, the Magistrate dismissed each information against Mr Tomson on 27 June 1995. The Magistrate refused to order costs against Customs. However, the Supreme Court of New South Wales quashed that decision and remitted the question of costs back to the Local Court. In the end, Customs agreed to pay Mr Tomson $100,000 in respect of his claim for costs.

10    In May 2004, the Standing Committee on Legal and Constitutional Affairs of the House of Representatives tabled its report on Modern-day usage of averments in Customs prosecutions (the Report). The Report included a dissenting report by one member of the Committee, the Hon Duncan Kerr MP. The Report considered the circumstances of Mr Tomson’s prosecution in detail and made the following recommendation:

“Given the reprehensible handling exhibited by the Australian Customs Service over the course of the investigation and failed prosecution of Mr Tomson, the Committee recommends that Mr Tomson receive appropriate compensation for commercial losses directly attributable to the seizure of the goods and to the lapse of time before the resolution of the costs issue between the parties in 1998.” (Recommendation 6)

11    The Government did not make a spontaneous payment in response to that recommendation and has refused to make any payment subsequently.

12    In November 2005, Mr Tomson made his first application for an act of grace payment under s 33(1) of the FMA Act (the 2005 application). That was made in an extensive document consisting of 27 pages of submissions (the 2005 submission) and 11 apparently lengthy appendices, prepared for Mr Tomson alone by Rodda Castle & Co Pty Ltd, which described itself as “International Trade Consultants, in conjunction with Davis & Benson, Chartered Accountants”. The submissions proceeded on the premise that Customs’ liability was not in issue because of the findings and recommendation 6 in the Report and the fact that in the succeeding 18 months there had been no Government response to it given to the Parliament.

13    The 2005 submission argued that Mr Tomson had suffered business losses resulting from Customs’ actions and alleged maladministration amounting to $108 million. Those losses allegedly comprised loss of profits of $39.67 million over the 18 or so years since the first seizure of goods by Customs and a loss of $68.33 million “attributable to the loss of [the] business itself”. One or more of the appendices appeared to have given the basis for those asserted losses.

14    The 2005 submission referred to adverse health consequences that each of Mr and Mrs Tomson had experienced but confined the claim for an act of grace payment by saying that it did not canvass “other material which does not have a direct bearing on the Commercial Losses suffered by Mr Tomson”. That submission was premised on the assertion that:

“By virtue of the findings of the Committee and the recommendations made by it, liability is not an issue. The findings cannot now be traversed: the recommendation stands as would a judgment of a superior court and is unchallengeable.

Irrespective of whether Mr Tomson has a cause of action at law, it is clear that, by virtue of the invitation to make an act of grace claim the force of the claim is to be determined by reference to factors much wider than would otherwise be entertained by a court of law; for instance, the question of morality must be a prominent factor in assessing the claim. The question of the harm done to a private citizen by Government maladministration is another.”

15    On 23 January 2006, the Parliamentary Secretary to the Minister for Finance and Administration, the Hon Dr Sharman Stone MP, wrote to Mr Ian Rodda in response to the 2005 application. The Minister said that she had responsibility for applications for act of grace payments under s 33 of the FMA Act. She wrote that she had considered Mr Tomson’s case and all the information provided by Mr Rodda and Customs. The Minister wrote that, after examining all the available evidence, it was reasonable for Customs to have expected that a conviction would have been secured. She did not consider that there was “any evidence linking Mr Tomson’s borrowings and final bankruptcy in 1999 to the Customs seizures in 1988”. The Minister was not satisfied that there was “a direct connection between the prosecution of Mr Tomson and any claimed commercial and other losses.” The Minister concluded that the legislation had been applied as intended and that there were no special circumstances to warrant an act of grace payment.

16    On 9 May 2006, the Government formally responded to the Report and rejected recommendation 6. The Government’s response to that recommendation of compensation stated that “current evidence indicates that there is no legal or moral basis for such a conclusion”. The Government set out a number of reasons for its position including:

    the Magistrate’s rejection of Mr Tomson’s assertion that the prosecution had been brought in bad faith;

    Mr Tomson’s previous convictions in 1984 for smuggling commercial quantities of clothing and making a false statement for which he was fined $1,800 and ordered to pay costs of $488;

    Customs’ awareness that between 1985 and 1987, Mr Tomson had sent $1,001,378.70 overseas for business purposes but had only declared to Customs a total value of $109,007.88 for goods that he imported over the same period;

    Mr Tomson had valued the imported goods that Customs had detained at $13,000 when an independent valuation had indicated a much higher value for them;

    Customs was entitled to investigate Mr Tomson’s importing activities given his previous record, the disparity between money he had sent overseas and the very low values he declared on the goods he had imported;

    Mr Tomson had not pursued his claim to recover the goods detained in June 1988;

    in 1998, Customs had paid Mr Tomson’s lawyers $100,000 as his agreed costs of the failed prosecutions;

    Mr Tomson’s bankruptcy in 1999 was remote from the prosecutions and occurred after the payment in respect of his legal costs;

    Mr Tomson had not provided particulars that demonstrated a connection between the prosecution and any claimed commercial losses.

17    The Government’s response drew attention to s 33 of the FMA Act and continued:

“Individual claims for an act of grace payment are considered on their own merits. Evaluation of any claim includes a consideration of whether the claimant acted reasonably in relation to their dealings with the particular Commonwealth agency or to what extent, if any, the claimant contributed to the loss, or what steps they took to minimise or contain that loss.

In accordance with relevant provisions in the Financial Management and Accountability Act 1997, Mr Tomson will need to substantiate that the loss he claims to have suffered arose as a direct consequence of the actions or decisions of the Australian Customs Service.” (emphasis added)

18    On 1 December 2006, Senator the Hon Richard Colbeck, the Parliamentary Secretary to the Minister for Finance and Administration wrote to the Minister for Justice and Customs (Senator Colbeck’s letter). Senator Colbeck was responding to representations that another Senator had made based on a letter from Mr Rodda dated 30 June 2006. Senator Colbeck had stated there that he did not consider that any new information had been provided to him by Mr Rodda to warrant reconsideration of Mr Tomson’s case. The letter stated, apparently addressing the requirement of the Government’s response emphasised in [17] above:

“Mr Tomson’s request for an act of grace payment was considered on its own merits and he has not substantiated that the losses he claims to have suffered arose as a direct consequence of the actions or decisions of [Customs].” (emphasis added)

The 2009 policy for s 33 application

19    In November 2009, the Minister’s Department (the Department) published Finance Circular 2009/09 (the policy circular) entitled “Discretionary Compensation and Waiver of Debt Mechanisms” updating an earlier circular on those matters. The purposes of the circular were to give an overview of the mechanism for, among others, making act of grace payments under s 33 of the FMA Act and to provide guidance to agencies on how the mechanisms operated. Attachment B to the circular dealt with the mechanism under s 33 of the FMA Act. It explained that:

    it was a non-exhaustive guide that described the principles and processes that underlay decisions to approve or decline applications;

    “The key features of the act of grace mechanism are:

    each request is considered on its individual merits;

           …

    that it is appropriate in cases where there is a moral, rather than legal, obligation to the person or body concerned; and

    decisions do not establish precedents;”

    prior to preparing a written report for the decision-maker to consider, the Department would ensure, in accordance with the requirements of procedural fairness, that the applicant had been provided with an opportunity to comment on the material that the decision-maker would consider;

    the power under s 33 was “generally a remedy of last resort” and used only where there is no other viable remedy to provide redress in the circumstances;

    the decision-maker would determine the amount of any payment under s 33 “having regard to the circumstances of the request, and the general principle in determining the actual level of payment will be based on restoring as far as possible the applicant to the position he or she would have been in had the special circumstances not arisen;”

    “For applications that are declined, applicants can seek a review of the decision. However, reconsideration of the decision will only be conducted if pertinent new evidence/facts/arguments are presented.”

The nature of Mr and Mrs Tomson’s application in 2012

20    Mr and Mrs Tomson’s current solicitors, Accentro Legal, made the present application to the Minister for an act of grace payment on 27 February 2012 (the 2012 application). That application consisted of:

    a detailed set of legal submissions that had been prepared by counsel in November 2011;

    a statutory declaration by Mr Tomson made on 13 August 2010;

    substantial extracts from the Report;

    extracts from the FMA Act;

    the policy circular;

    the submissions made for the 2005 application, but excluding its detailed appendices. (One or more of the appendices to the 2005 submission apparently contained the basis for the assessment of the $108 million in losses, but that material was not reproduced in the 2012 application.);

    two medical reports dated 9 November 2009 by Dr Peter Klug, a forensic psychiatrist, in respect of each of Mr and Mrs Tomson.

21    The legal submissions:

    summarised facts set out in Mr Tomson’s statutory declaration, including the circumstances of the failed Customs’ prosecutions and the findings and recommendation 6 in the Report;

    contended that Customs had chosen to bring the failed proceedings under the Customs Act about 28 months after the DPP had advised it in February 1990 that there was insufficient evidence to prosecute Mr Tomson under the Crimes Act;

    contended that Mr and Mrs Tomson had been affected by Customs’ actions over 11 years from the first seizure of a container until the payment of the agreed costs and that during this period there had been several delays that had added to the injustice suffered by Mr and Mrs Tomson;

    contended that recently Mr Tomson had attempted to bring a professional negligence claim against his former solicitors on the basis that, so he alleged, they had failed to advise him to bring proceedings for malicious prosecution against Customs and that the professional negligence claim had been summarily dismissed: Tomson v Boitano [2011] NSWSC 527;

    criticised the Government response to the Report and recommendation 6, arguing that, among other matters:

(a)    Mr Tomson’s 1984 conviction and small fine were irrelevant to Customs investigating him in 1987 and following;

(b)    the disparities between the amounts Mr Tomson had remitted overseas for business purposes and his declarations of value for goods that he imported were inconclusive;

(c)    Customs’ higher valuations for the seized goods did not support its prosecutions and the DPP, presumably, had made his decision not to prosecute having had access to that material;

(d)    Mr Tomson’s decision not to pursue his proceedings in this Court to recover the seized containers had been made four years before the initiation of the Customs prosecutions;

(e)    it could not be asserted that the payment of the $100,000 in respect of Mr Tomson’s legal costs under a court order was adequate compensation;

(f)    the Magistrate would not have been aware of the DPP’s February 1990 advice when he observed that there was nothing improper in the Customs prosecution;

    disclaimed any reliance on the 2005 application’s claim for $108 million saying: “That was an exaggerated and unsupportable claim which should never have been made”;

    argued that any proper assessment of direct economic losses suffered by Mr and Mrs Tomson as a result of the prosecutions was extremely difficult, but neither had worked subsequently and both suffered from serious psychiatric problems as a result of those prosecutions;

    contended that Mr Tomson’s loss should be assessed on the value of average male weekly earnings and, because she cared for their six children and had been unable to work at all since 1988, Mrs Tomson’s loss should be assessed on the value of half of average female weekly earnings for the period between 1988 and Mr Tomson reaching retirement age in 2009;

    sought compensation for pain and suffering based on Dr Klug’s reports. He had opined that Mrs Tomson suffered from a chronic depressive illness, and that Mr Tomson suffered from significant anxiety based and depressive symptoms;

    claimed interest to be payable on the amount of compensation.

The rejection of the 2012 application

22    The Minister delegated the consideration of the 2012 application to Dr Guy Verney, who was an assistant secretary in her Department. On 14 May 2012, Dr Verney wrote to Accentro Legal stating that pursuant to s 33(1) of the FMA Act he “declined to reconsider Mr and Mrs Tomson’s request for an act of grace payment” (emphasis added). Dr Verney’s letter referred to Senator Colbeck’s letter and its conclusion set out at [19] above.

23    Dr Verney noted that the 2012 application had disclaimed reliance on some submissions in the 2005 application that counsel for Mr and Mrs Tomson had described as “an exaggerated and unsupportable claim that should never have been made”. Dr Verney stated that the 2012 application sought compensation of $3,140,000 on the basis that Mr and Mrs Tomson claimed that they had experienced significant pain and suffering caused by what had happened to them and that this amounted to “special circumstances”. He noted that each of them suffered physical and emotional disabilities. However, Dr Verney wrote that he was “not satisfied that any medical condition or claimed economic loss suffered by them is sufficiently connected to the actions of Customs”.

24    On 18 May 2012, Accentro Legal sought a statement of Dr Verney’s reasons for his decision under s 13 of the ADJR Act. He provided those on 19 June 2012. In his statement of reasons (Dr Verney’s reasons), Dr Verney identified the material on which he based his findings as being only Senator Colbeck’s letter and the 2012 application. He found that Senator Colbeck had considered that:

    Mr Rodda had not provided any new information in 2006 that warranted reconsideration of Mr Tomson’s case; and

    Mr Tomson’s claim for an act of grace payment (in the 2005 application) had previously been considered on its merits and had not substantiated that his claimed losses had arisen as a direct consequence of the actions or decision of Customs.

25    Dr Verney also found that Mr and Mrs Tomson sought an act of grace payment on four bases, namely:

    the application of Commonwealth legislation or policy had produced an unintended or unacceptable result for them;

    while they had no control over the events they experienced, what had happened to them was consistent with the legislation;

    the Commonwealth had a moral, not legal, obligation to compensate them;

    they suffered direct losses including economic loss, pain and suffering and sought interest.

26    Dr Verney said that, based on the 2012 application, he considered that “the issues had been fully considered in the previous decision made by” Senator Colbeck. He repeated the policy that, generally, a request for an act of grace payment would not be reconsidered unless it could be shown that the decision-maker had made a serious mistake or relevant new evidence warranting reconsideration were provided. He noted that Dr Klug’s reports were new information. However, Dr Verney wrote that he “was not satisfied that any medical condition or claimed economic loss suffered by them is sufficiently connected to the actions of Customs”. He said that he had discretions whether or not to reconsider Mr and Mrs Tomson’s request for an act of grace payment and that if he did reconsider, whether he would authorise a payment to them due to special circumstances. He concluded:

“Based on the available information, I exercised my discretion and decided not to reconsider the Tomsons’ request for an act of grace payment, as I am satisfied that the issues you have raised have been given full consideration and the information you have provided did not represent new information that warranted reconsideration.”

27    On 16 July 2012, Accentro Legal applied for a statement of Senator Colbeck’s reasons. On 1 August 2012, Dr Verney refused that request under s 13(5) of the ADJR Act explaining that it came many years after 1 December 2006 when Senator Colbeck had made his decision.

28    Lawrence Lim, who was the solicitor for Mr and Mrs Tomson, gave evidence that he believed that the time for filing their application for review of Dr Verney’s decision under r 31.01(1) of the Federal Court Rules 2011 (Cth) would expire 28 days after receipt of the Minister’s response to that request. He said that this was the reason that the application for review was filed about six weeks after the 28 days following his receipt on 21 June 2012 of Dr Verney’s reasons. The Minister did not oppose the grant of an extension of time under r 31.02 so as to validate the late filing of the application for review, if the Court was of the view that there was sufficient merit in the substantive application.

The parties’ submissions

29    Mr and Mrs Tomson argued that Dr Verney’s decision to refuse to consider the 2012 application was so unreasonable that no reasonable person could have so decided because he mis-characterised the 2012 application as seeking reconsideration of the 2006 decisions by Dr Stone or Senator Colbeck rather than as a fresh application by both of Mr and Mrs Tomson (the latter never having made a prior application) on a new basis and with further evidence. They also contended that Dr Verney did not have regard to the verified material in Mr Tomson’s statutory declaration, Dr Klug’s opinions, the Supreme Court’s rejection of Mr Tomson’s attempt to sue his former solicitor and the reasoned submissions of counsel for assessing the claimed loss put on a fundamentally different basis to that in the disavowed 2005 application all of which was not before the 2006 decision-makers. They argued that Dr Verney had inflexibly applied a policy in par 43 of the policy circular that there had to be “pertinent new evidence/facts/arguments” in arriving at his conclusion that the issues raised in the 2012 application had all been fully considered by Senator Colbeck in 2006. They also argued that in the absence of any statement of reasons for the 2006 decisions it was not possible to be sure what issues had been considered by either Minister.

30    The Minister contended that while there were differences between the 2005 and 2012 applications, these were not substantive for the purposes of considering an application under s 33. She argued that it had been open to Dr Verney to refuse to consider the 2012 application because none of the new material in it went to the core issue under s 33, namely whether Customs’ seizures of Mr Tomson’s goods and its prosecutions of him constituted “special circumstances”. The Minister contended that her delegate had found as a fact that the material in the 2012 application was not “new” information. However, she accepted that there was new factual material in the 2012 application that was not previously before Dr Stone or Senator Colbeck being:

    material that addressed what Dr Stone had considered was the lack of evidence linking Customs’ actions to the losses claimed in the 2005 application;

    the statutory declaration (although Dr Verney expressly referred to this as being material before him in his statement of reasons);

    new facts and a new rationale for the claim contained in the 2012 application.

31    The Minister submitted that, in any event, s 33 did not oblige her to consider or reconsider applications. Nonetheless, she accepted that Mr and Mrs Tomson could have a legitimate expectation that an application would be considered because of par 6 of the policy circular. The Minister argued that Mr and Mrs Tomson’s submission that the 2012 decision was the result of an inflexible application of policy was, in reality an assertion inviting merits review of the decision.

32    After I had reserved my decision, the High Court decided Minister for Immigration and Citizenship v Li (2013) 297 ALR 225. I invited the parties to make any submissions they considered appropriate in respect of any relevance that decision might have for these proceedings. The Minister did not oppose Mr and Mrs Tomson’s application to rely on that decision. The Minister accepted that any decision made under s 33(1) had to be reasonable in the sense explained by Hayne, Kiefel and Bell JJ in Li 297 ALR at 247 [67], namely that “[t]he legal standard of reasonableness must be the standard indicated by the true construction of the statute.” The Minister argued that that decision did not deal with the concept of reasonableness in ss 5(1)(e) and 5(2)(g) of the ADJR Act. However, she said that if Li 297 ALR 225 were relevant, the two principal contentions relied on by Mr and Mrs Tomson, namely that Mrs Tomson had not made a previous claim and the 2012 application was different to the 2005 one, did not grapple with the substantive reason, set out in [15] above, as to why Dr Stone had rejected Mr Tomson’s 2005 application.

Construction of s 33 of the FMA Act

33    The discretion conferred on the Finance Minister by s 33(1) of the FMA Act is enlivened if she “considers it appropriate because of special circumstances” to authorise one or more payments to a person. Critically, the section authorises such a payment notwithstanding that it is not made under any law or to satisfy a legal liability. The Parliament did not circumscribe the breadth of the discretion it conferred on the Finance Minister in s 33(1) except to require her to consider that the making of the payment be “appropriate” because of “special circumstances”. The discretion is, as Weinberg J described in Toomer v Slipper [2001] FCA 981 at [31], “obviously broad”.

34    The expression “special circumstances” must be understood in the context of the balance of s 33 itself and the FMA Act as a whole. Evidently, however, a payment under s 33 can be made to address situations in which the Commonwealth has no legal obligation to pay anything, or as great a sum, but, that something about the circumstances is “special” so as to make such a payment “appropriate” in the consideration of the Finance Minister.

35    “Special” is an ordinary English word that, in s 33(1), is used to describe what is “distinguished or different from what is ordinary or usual” (Macquarie Dictionary online) or “of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality or degree”, or “marked off from others of the kind by some distinguishing qualities or features; having a distinct or individual character”, or “having an individual, particular or limited application …” (Oxford English Dictionary online).

36    In essence, the Finance Minister, in considering the exercise of the discretion under s 33(1), will assess whether there is a feature or characteristic of the particular circumstances that renders them “special”, or out of the ordinary. As Weinberg J held in Toomer [2001] FCA 981 at [31] there are any number of circumstances that may give rise to a claim for a payment under s 33. In considering whether to exercise the discretion, the Finance Minister is not bound to have regard to any other matters than those set out in s 33 itself and any that may be discerned by implication from the subject matter, scope and purpose of the FMA Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J (with whom Gibbs CJ at 30 and Dawson J at 71 agreed).

37    There is nothing to suggest that any other provision of the FMA Act or any matter arising by implication from it affects the breadth of the factors that the Finance Minister is entitled to take into account, or limits or otherwise conditions what she must have regard to, when considering the exercise of the discretion under s 33. Nonetheless, the Finance Minister must exercise her discretion reasonably, having regard to the scope and purpose of s 33 the FMA Act and its real object: Li 297 ALR at 247 [67] per Hayne, Kiefel and Bell JJ, see too at 236 [23]-[24] per French CJ and 257-258 [109]-[112] per Gageler J. A decision-maker must understand his or her statutory powers and obligations: Li 297 ALR at 248 [71]. Hayne, Kiefel and Bell JJ went on to say (297 ALR at 249 [72], 250 [76]):

“[72]    … Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [(1986) 162 CLR 24 at 41], Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is “manifestly unreasonable”. Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.

...

[76]    As to the inferences that may be drawn by an appellate court, it was said in House v R [(1936) 55 CLR 499 at 505] that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

Consideration

38    Dr Verney’s letter of 14 May 2012 and his statement of reasons both proceeded on the basis that the issues raised in the 2012 application had been fully considered by Senator Colbeck when he made his decision in 2006 to reject the 2005 application. Dr Verney identified that Senator Colbeck’s earlier consideration was one reason why he had decided to exercise, what he termed, his discretion not to reconsider the request for an act of grace statement. The second basis which Dr Verney said he had for that exercise of discretion was that the information in the 2012 application “… did not represent new information that warranted reconsideration” (emphasis added). Dr Verney identified, as a matter that he had taken into account in that exercise of his discretion, a policy that generally a request for a payment under s 33(1) would not be reconsidered unless it could be shown that the decision-maker had made a serious mistake or relevant new information warranting reconsideration were provided.

39    It may be accepted that Senator Colbeck fully considered the 2005 application in arriving at his decision to decline to make a payment. However, that application was put on a very different basis to the 2012 application. Unlike the 2012 application, the 2005 application was unsupported by clearly articulated legal submissions, did not include any supporting medical evidence and was not made by Mrs Tomson. In addition, Mr Tomson had made the 2010 statutory declaration that was included in support of the 2012 application.

40    I reject the Minister’s argument that the 2012 application did not go to what she characterised as the “core issue”, namely that, so she contended, Custom’s actions constituted special circumstances. The issue under s 33(1) is whether it is appropriate “because of special circumstances” for the Minister (or a delegate) to authorise an act of grace payment. In considering the 2005 and 2012 applications the actions of Customs necessarily would be part of the circumstances. But, the statutory language requires a decision-maker who has embarked on a consideration of an application for a payment under s 33(1) to look at the overall matrix of facts presented and to assess whether that scenario itself amounts to, or has characteristics that constitute, “special circumstances”. The Minister’s argument is itself a descent into a merits review analysis.

41    The actions of the Commonwealth referred to in an application could be unimpeachable both in law and, from its perspective, on the facts, yet they might create a situation because of their effect on an applicant in which there were “special circumstances” warranting the exercise of the discretion to authorise a payment under s 33(1). The section expressly contemplates that the payment might not be otherwise authorised by any law or required to meet a legal liability. For example, a person who suffered financial loss because of the lawful implementation of a legislative scheme might be compensated because he, she or it was unintentionally, or even intentionally, harmed by that action for which there was no legal remedy.

42    Full consideration by Dr Stone and Senator Colbeck of Mr Tomson’s exaggerated and insupportable 2005 application for $108 million in losses claimed to flow from the interruption and cessation of the business of two small suburban shops is one thing. But, the 2012 application was made by two people, not one, on new facts, including Dr Klug’s two reports on their medical conditions in late 2009 and a rational, articulated legal argument that sought to connect the claimed, but not insubstantial, damages of about $3 million to the facts. Those facts were also articulated and, of course, related to the actions of Customs in seizing the containers and subsequently prosecuting Mr Tomson.

43    However, the facts and reasons given in support of the new, much smaller, claim presented and relied on in the 2012 application were not the same on any reasonable construction as those in the 2005 application. There were common features for both applications, including the impugned actions of Customs. But, the question for Dr Verney, as delegate, in considering the 2012 application was whether that new, different, application by both Mr and Mrs Tomson, considered as a whole, raised special circumstances that warranted the exercise of the discretion to authorise a payment.

44    Moreover, Senator Colbeck’s letter could not have been a full consideration of the much later 2012 application. Rather, that Minister rejected the request put through Mr Rodda to Senator Heffernan for reconsideration of Dr Stone’s decision that had been based on consideration of the 2005 application’s claim. Mr Tomson’s losses were $108 million on that claim’s merits. And, as appears to be common ground, that application provided no support for Mr Tomson’s claim for $108 million. Similarly, the Government’s response in 2006 to the Report made the point that Mr Tomson had not provided particulars that demonstrated a connection between the prosecution and any claimed losses. Senator Colbeck came to a similar conclusion.

45    There is some tension between Dr Verney’s reasoning that, on the one hand, he was not satisfied that any medical condition or claimed economic loss suffered by Mr and Mrs Tomson was sufficiently connected to Customs’ actions and, on the other hand, his exercise of his discretion not to “reconsider” their claim. His latter reasoning suggests that Dr Verney had not considered the claim made by Mrs Tomson at all, since she had never made a claim in 2005 or 2006 that could be “reconsider[ed]” in 2012. Yet, Dr Verney’s earlier reasoning suggests that he gave her claim some consideration. Whatever degree of consideration he gave, it is evident that Senator Colbeck gave no, or no real, consideration to Mrs Tomson’s position, because she never made a claim in the 2005 application. Hers was a claim that was new and raised for the first time in 2012, albeit that it was closely connected to her husband’s claim.

46    In Li 297 ALR at 236 [24] per French CJ, 247 [67] per Hayne, Kiefel and Bell JJ and 257 [109] per Gageler J, the Court approved what Dixon CJ had said with the agreement of McTiernan and Windeyer JJ in Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473 concerning judicial review of the exercise of an ill-defined or broadly expressed discretion conferred on a judicial or administrative decision-maker. Dixon CJ said:

“This Court has in many and diverse connexions dealt with discretions which are given by legislation to bodies, sometimes judicial, sometimes administrative, without defining the grounds on which the discretion is to be exercised and in a sense this is one such case. We have invariably said that wherever the legislature has given a discretion of that kind you must look at the scope and purpose of the provision and at what is its real object. If it appears that the dominating, actuating reason for the decision is outside the scope of the purpose of the enactment, that vitiates the supposed exercise of the discretion. But within that very general statement of the purpose of the enactment, the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.” (emphasis added)

47    As I have said, Dr Verney’s reasons revealed that he had applied a policy in respect of the 2012 application that a request for an act of grace payment would not be reconsidered unless it could be shown that the previous decision-maker had made a serious mistake or relevant new evidence warranting reconsideration were provided. He exercised his discretion in accordance with that policy to refuse to “reconsider” the 2012 application without regard to its merits. So much is evident from his assertion that Senator Colbeck had fully considered the issues in 2006. That assertion revealed that Dr Verney did not give any consideration to whether “special circumstances” existed because of, individually or in some combination, the substantive new issues concerning Mrs Tomson, who had been no part of the 2005 application, the clearly articulated and very different basis of the claim for compensation, Mr and Mrs Tomson’s reply to the Government’s response to the Report, Mr Tomson’s failed claim against his former lawyers, and the medical issues in Dr Klug’s reports.

48    I am satisfied that Dr Verney failed to consider the whole of the relevant material in the 2012 application by giving “proper, genuine and realistic consideration to the merits of the case” and “be[ing] ready in a proper case to depart from any applicable policy”: Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 174-175 [26]-[30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

49    As a general principle, an administrative decision-maker is required to make his or her decision on the basis of the material available to him or her at the time the decision is made: i.e. on the basis of the most current material available: Peko-Wallsend 162 CLR at 45 per Mason J; see too SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 at 571-573 [27]-[42] where I discussed the principle.

50    Although Dr Verney had the 2012 application before him, he mistakenly asserted that all the issues that it raised had been fully considered years before in dealing with the 2005 application. Indeed, as Dr Verney’s reasons showed, he only had Senator Colbeck’s letter and the 2012 application itself before him. He did not have before him what Senator Colbeck had considered. Thus, he did not consider the parts of the 2005 application not reproduced in the 2012 application or Dr Stone’s letter. Accordingly, he could not have been satisfied that Senator Colbeck, or for that matter, Dr Stone, had considered the substantive new material and the issues raised in the 2012 application.

Conclusion

51    Accordingly, the 2012 decision was an improper exercise of the discretionary power in s 33(1) of the FMA Act within the meaning of s 5(1)(e) of the ADJR Act. The Minister did not oppose an extension of time if the substantive contentions of Mr and Mrs Tomson were found to have merit. I will grant that extension. The 2012 decision must be set aside and the 2012 application must be remitted to the Minister to be dealt with in accordance with the law.

Associate:                        Dated:    11 July 2013