FEDERAL COURT OF AUSTRALIA

Evans v Secretary, Department of Social Services [2014] FCA 491

THE COURT ORDERS THAT:

1.    The objection to the competency of the appeal is upheld.

2.    The appeal be dismissed.

3.    There be no orders as to costs.

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

REASONS FOR JUDGMENT

1.    Introduction

1    On 6 February 2014, Mr Greg Evans filed an application for an extension of time within which to appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) against the decision of the Administrative Appeals Tribunal (the Tribunal) made on 23 December 2013 in Evans and Secretary, Department of Social Services [2013] AATA 944. On 6 March 2014, the Secretary of the Department of Social Services (the Secretary) filed a notice of objection to the competency of that application to be heard and determined before the hearing of the appeal under r 33.30(3) of the Federal Court Rules 2011 (Cth) (FCA Rules). When the proceeding came on before me for first directions on 12 March 2014, in light of the apparent deficiencies on the face of Mr Evans’ documentation I made orders, with the respondent’s consent, granting Mr Evans leave to file an amended draft notice of appeal.

2    Subsequently, on 8 April 2014 Mr Evans filed an amended draft notice of appeal. The matter returned for directions on 10 April 2014 where it was properly conceded by the Secretary that Mr Evans did not require an extension of time within which to commence the proceedings. As a result, I made orders by consent to the effect that the documents filed by Mr Evans would be treated as filed in the appeal. I also made orders to the effect that the respondent’s objection to the competency of the appeal be taken as being sought on the basis of the grounds in the amended notice of appeal. It followed that the notice of objection to competency was made within time for the purposes of r 33.30(1) of the FCA Rules.

3    I note that the Court’s jurisdiction is exercisable by me as a single judge because the appeal is from a decision of a senior member of the Tribunal and therefore from a person who is not a judge by s 6(3) of the AAT Act: cf s 20(2), Federal Court of Australia Act 1976 (Cth).

4    The sole ground relied upon in the objection to competency is that the amended notice of appeal does not disclose a question of law as required by s 44(1) of the AAT Act. For the reasons set out below, I am satisfied that the appeal is not competent. As a consequence, this Court lacks jurisdiction to entertain the appeal and the application must be dismissed.

2.    Background

5    In the Tribunal, Mr Evans sought review of the decision by the Social Security Appeals Tribunal (SSAT) affirming the decision of a Centrelink Authorised Review Officer (Centrelink Officer) not to waive or write off a debt of approximately $280,000 raised against Mr Evans. Mr Evans was paying off the debt at the rate of $20 per fortnight. The debt was said to have arisen as a result of Mr Evans:

a)    receiving social security payments between January 1985 and October 2001 at the same time as he was receiving payments in the name of Gregory Evangelatos (the first debt);

b)    receiving payments of invalid and disability support pensions paid between February 1982 and February 2001 in the name of Gregory Evangelatos to which he was not entitled (the second debt); and

c)    receiving during periods between 1980 and 1983 partner allowance and special benefits for which he did not satisfy the eligibility criteria (the third debt).

6    The first debt resulted from the conviction of Mr Evans of defrauding the Commonwealth by obtaining benefits to which he was not entitled and for which he had been sentenced to a period of imprisonment by the District Court of New South Wales and ordered to make reparation to the Commonwealth in the amount of $164,132.67. The Secretary consented to that figure being taken to include the third debt which the SSAT found to be $383.88. The Tribunal found that, even assuming that it had power under s 1237AAD of the Social Security Act 1991 (Cth) to waive the debt (about which the Tribunal expressed misgivings), the criteria for the exercise of that power were not met. No appeal is brought against the decision of the AAT in so far as it related to the first and third debts.

7    The second debt was not the subject of criminal proceedings. In February 2002, a decision was taken to cancel Mr Evans’ disability support pension after a Centrelink Officer had found that Mr Evans was not incapacitated for work throughout the second debt period and that he had received significant overseas income for part of that period which placed him above the income cut-off figure for an invalid pension. Mr Evans applied to the SSAT for review. Five days into the hearing, however, he withdrew his application for review of the decision to raise and recover the second debt but not the decision to cancel his disability support pension. On 25 October 2002, the SSAT affirmed the decision to cancel his disability support pension. Mr Evans applied to the AAT for a review of that decision but settlement was reached prior to the hearing, and Mr Evans’ disability support pension was reinstated. I note that, while the Tribunal’s reasons also referred at [32] to widow and supporting parents pensions paid during the second debt period, that was apparently an error of fact and had no further no impact on the remainder of the decision.

8    In October 2011 Mr Evans unsuccessfully applied to the SSAT for review of the decision of the Centrelink Officer on 11 February 2002 to raise and recover the second debt. That decision was the subject of Mr Evans’ application for review to the AAT from which this appeal is brought.

9    Mr Evans claimed before the Tribunal that officers of the Australian Federal Police and Centrelink involved in a seizure of documents from his home in October 2001 had stolen those documents and that some of them supported his claim to be incapacitated for work during the debt period. Mr Evans also claimed that despite a number of requests to the Secretary for those documents under the Freedom of Information Act 1982 (Cth) (FOI Act), the Secretary had refused to provide him with copies of the “missing medical reports” (Tribunal reasons at [40]). The contemporaneous documents seized in 2001 were examined in some detail in the decision by the Centrelink Officer and suggested that Mr Evans had been involved in a range of business and other activities throughout the debt period (Tribunal reasons at [41]). Some of those activities were also outlined in the decision of the Tribunal.

10    The Tribunal found first that it was satisfied that Mr Evans was ineligible for the invalid pension between 1 January 1984 and 30 June 1988 because he was above the applicable asset cut-off figure and had also received significant foreign income which placed him above the applicable income cut-off figure, as the Centrelink Officer had found. Mr Evans led no evidence to refute these findings: Tribunal reasons at [70]. As a result, the Tribunal found that it was not necessary for it to consider the issue of incapacity to work during this period.

11    With respect to the period 1 July 1988 to 22 August 1991, the Tribunal found at [87] of its reasons that it was satisfied that Mr Evans did not have a permanent incapacity for work within the meaning of s 27 of the Social Security Act 1947 (Cth) (the SSA) so as to qualify for the invalid pension. Specifically, applying s 27 of the SSA it found at [87]-[88] that:

“His account of being significantly disabled was internally inconsistent, largely unsupported and contradicted by the weight of contemporaneous evidence. By his own admission Mr Evans failed to inform the many doctors who examined him of the range of business activities in which he was involved and his extensive overseas travel. The voluminous contemporaneous documents reveal that the class of work for which Mr Evans was suited was not confined to manual work. On the available material it is now not possible to reliably determine the extent to which Mr Evans was troubled by his back and other health problems. A finding, however, can safely be made that Mr Evans’s [sic] health problems did not prevent him from energetically pursuing business interests and various pursuits in Australia and overseas over an extended period.

I am not satisfied that Mr Evans had a permanent incapacity of not less than 85 per cent for paid work for which he was suited during this period.”

12    With respect to the periods 25 March 1994 to 1 January 2000 and from 20 December 2000 to February 2001, for largely the same reasons, the Tribunal found that it was “comfortably satisfied that Mr Evans did not have a ‘continuing inability to work’ within the meaning of s 94 of the [Social Security Act 1991 (Cth)]” so as to qualify for the invalid pension.

13    It followed that the Tribunal was satisfied that the pension payments made to Mr Evans during each of these periods constitute a debt payable to the Commonwealth (Tribunal reasons at [98]). The Tribunal also found that it was not satisfied that Mr Evans’ circumstances were sufficiently unusual, uncommon or involved sufficient hardship or unfairness such that they amounted to “special circumstances” within the meaning of s 1237AAD so as to enliven the power to waive the debt (at [100]). Nor were the preconditions to the exercise of the power under s 1236 satisfied so as to enliven the power to write off the debt, or those in s 1237A to waive the debt on account of an administrative error made by the Commonwealth (at [101]-[102]).

14    Finally, the Tribunal granted leave to Mr Evans to provide additional relevant documents within seven days, given his apparent difficulties in organising his paperwork. The Tribunal also observed at [103]-[106] with respect to the evidence that:

“Mr Evans filed hundreds of pages of documents. Most were filed out of time. Most were contained in the documents lodged by the Secretary under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) or had already been tendered by Mr Evans. The relevance of those that had not previously been provided was neither apparent nor explained.

Many of the documents related to the proceedings before the NSW District Court and the unsuccessful appeal to the Supreme Court of NSW.

A large number of the filed documents consisted of medical records and reports apparently provided to Mr Evans in answer to his FOI request. All were included in the documents lodged by the Secretary.

The balance was either irrelevant or bolstered the existing evidence that indicated that throughout the 1990s Mr Evans was involved in activities inconsistent with his claim of being incapacitated for employment. For example, some record Mr Evans as being one of Mrs Blomeley’s creditors in bankruptcy proceedings in the sum of about $28,000. This is consistent with his claim that in the 1990’s, he performed work on behalf of Mrs Blomeley’s [sic] for which he was not paid.”

3.    Consideration

3.1    Relevant principles

15    Section 44(1) of the AAT Act provides that:

“A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.” (emphasis added)

16    The Minister drew the Court’s attention to the failure by Mr Evans to comply with the requirement in r 33.12 of the FCA Rules to file a notice of appeal in accordance with Form 75, and his failure to identify a question of law which, by virtue of r 33.12(2)(b), must be “the precise question or questions of law to be raised on the appeal”. The importance of complying with these rules is apparent from the fact that the question or questions of law stated in the notice of appeal constitute the subject-matter of the appeal: see, eg, Comcare v Etheridge (2006) 149 FCR 522 at 527 [14] (Branson J). While, as Mansfield J said in Kowalski v Chief Executive Officer, Medicare Australia (2010) 185 FCR 42 at 51 [38], some allowance may be given to an unrepresented litigant, that does not detract from the fact that the jurisdiction of the Court to entertain an appeal under s 44 of the AAT Act is engaged only where a question of law is raised for determination.

17    The legal principles applicable to an appeal on a question of law were discussed by Dowsett and Gordon JJ in Federal Commissioner of Taxation v Trail Bros Steel and Plastics Pty Ltd (2010) 186 FCR 410 at 414 [12] as follows:

“In Etheridge 149 FCR 522, the Full Court of the Federal Court restated two principles. First, that ‘on a question of law’ is narrower than an appeal that merely ‘involves’ a question of law with the result that where an appeal lies ‘on a question of law’, the subject matter of the appeal is the question or questions of law: Etheridge 149 FCR 522 at [13]-[15]; see also Scicluna v New South Wales Land and Housing Corporation (2008) 72 NSWLR 674 at [4] and TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1067 at 1069-1070; 82 ALR 175 at 177-179 (per Gummow J). Secondly, a mixed question of fact and law is not a question of law within the meaning of s 44(1) of AAT Act: Etheridge 149 FCR 522 at [16]; see also Price Street Professional Centre Pty Ltd v Federal Commissioner of Taxation (2007) 67 ATR 544; 243 ALR 728 at [40] (per Edmonds J).”

18    Without being exhaustive, a number of examples were given at 414 [13] by their Honours of questions of law, namely:

1.    Whether the AAT has identified the relevant legal test: Scicluna 72 NSWLR 674 at [68] and Collins v Administrative Appeals Tribunal (2007) 163 FCR 35 at [55];

2.    Whether the AAT has applied the correct test; Repatriation Commission v Hill (2002) 69 ALD 581 at [59]; Federal Commissioner of Taxation v Zoffanies Pty Ltd (2003) 132 FCR 523 at [25]; Tax Agents’ Board v Bray (2004) 58 ATR 118 at [19]; Collins 163 FCR 35 at [55];

3.    Whether there is any evidence to support a finding of a particular fact; Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 at [34]; and

4.    Whether facts found fall within a statute properly construed: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.

19    Other examples were identified by Lander J in Kara v Comcare [2011] FCA 951 at [28]:

“A question of law will include a matter of statutory construction: Repatriation Commission v Hayes (1982) 64 FLR 423. Further, a question of law will be raised where it is contended that the AAT failed to comply with s 39(1) of the AAT Act and did not allow the party seeking to appeal a reasonable opportunity to present the party’s case; or did not allow the party to inspect any documents to which the AAT proposed to have regard in reaching a decision in the proceeding, or to make any submissions in relation to those documents.”

20    Importantly, however, no question of law is raised by the Tribunal making a wrong finding of fact. As Brennan J stated in Waterford v Commonwealth (1987) 163 CLR 54 at 77-78:

“A finding by the A.A.T. on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the A.A.T. Act confers on a party to a proceeding before the A.A.T. a right of appeal to the Federal Court of Australia ‘from any decision of the Tribunal in that proceeding’ but only ‘on a question of law’. The error of law which an appellant must rely on to succeed must arise on the facts as the A.A.T. has found them to be or it must vitiate the findings made or it must have led the A.A.T. to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. Therefore an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact.”

21    In short, the merits of a review are for the AAT and not for the Court.

3.2    The grounds of appeal

22    The amended notice of appeal identifies the following grounds:

(1)    I am not satisfied when Centrelink produced affidavits from some people during the Tribunal appeal and trial in court.

(2)    That Tribunal from both parties, AAT and SDSS write-off the debt. Documents under FOI I have requested ever since 2001 was refused. Court order was made against Federal Police (Qld) [and a person from Centrelink] in 11/2/02 and 2/9/02. Document from Department of Foreign Affairs was refused (4/10/06).

23    The orders sought were identified as follows:

“Request to appeal with AAT and SDSS. I have documents to support which I withheld during my appeal, because there was leak in during those department. I would like the second debt to be dismissed because I was sick and disabled until today. 2001 was cancelled (DSS Pension) and reinstated in 2002. My application was refused but my solicitor get them reinstated (DSS Pension).”

24    The first ground appears to take issue with the evidence from officers of Centrelink in the Tribunal and as such is concerned only with matters of fact. No error of law is disclosed.

25    The second ground focuses upon Mr Evans’ alleged inability to obtain documents under the FOI Act, allegations that were also made before the Tribunal.

26    Insofar as the second ground might be read as an allegation of a breach of procedural fairness, the failure to afford the affected party a reasonable opportunity to present his or her case can constitute a question of law: see the passage cited from the decision in Kara quoted at [19] above. However, here the failure does not relate to the Tribunal’s decision which is under review (and in respect of which Mr Evans was afforded a reasonable opportunity to present evidence: see Tribunal reasons at [103]-[106] summarised at [13] above). Rather the complaints apparently relate to decisions under FOI legislation and by the Department of Foreign Affairs and Trade. As such, they allege no error that is capable of raising a question of law on a review from the decision of the Tribunal with which this appeal is concerned.

27    Furthermore, in line with statements in his amended notice of appeal in relation to the orders sought, Mr Evans submitted at the hearing of the objection to competency that he wished to produce documentary evidence before this Court in an attempt to reargue the merits of his claim before the Tribunal. However, that is not a course open in this Court on an appeal under s 44 of the AAT Act which is limited to questions of law.

28    On 6 April 2014, the appellant filed an affidavit sworn/affirmed by him with the original application for an extension of time. He also filed two affidavits stated to be sworn/affirmed by him on 8 April 2014 with the amended notice of appeal. No issue is taken by the Secretary as to irregularities in the appellant’s affidavit evidence. In so far as his evidence seeks to explain the delay in filing his notice of appeal, it is irrelevant as it is now accepted that the appeal was filed within time. Nor is the reference to “without prejudice” communications relevant to the competency of the appeal and I have disregarded that material. Otherwise the affidavits deposed to purely factual matters including: the purposes of his travels abroad between 1981 to 2000; treatment and diagnoses said to have been given by medical practitioners; explanations of his involvement in various activities over the second debt period; and matters relating to his attempts to obtain documents. None of that material discloses the existence of any question of law for the purposes of s 44 of the AAT Act. Equally, the appellant’s written submissions focused upon rearguing matters of fact determined adversely against him in the Tribunal.

4.    Orders

29    For the reasons set out above, the appeal is not competent and must be dismissed. The Secretary did not seek an order for his costs.

Associate:

Dated:    20 May 2014