FEDERAL COURT OF AUSTRALIA

Sesalim v Secretary, Department of Social Services (No 2) [2018] FCA 1401

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The decision of the Administrative Appeals Tribunal given on 22 March 2016 in matter number 2015/4791 is set aside.

3.    The subject of the decision referred to in Order 2 to be remitted for redetermination by another member of the Administrative Appeals Tribunal in accordance with law.

4.    The first respondent pay the applicant’s costs of the appeal.

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

ORDERS

THE COURT ORDERS THAT:

1.    The applicant pay the respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    These appeals were the subject of reasons for judgment published as Sesalim v Secretary, Department of Social Services [2018] FCA 1159. These reasons should be read with those reasons. The abbreviations there made are continued.

2    In VID 166 of 2017, an order was made on 7 August 2018 dismissing the appeal. The question of costs remained to be determined and the parties were given an opportunity to address it. In submissions dated 7 September 2018, Mr Sesalim contended that there was no reason why he ought not have his costs of that proceeding. In submissions of the Secretary dated 7 September 2018, the Secretary sought an order that Mr Sesalim pay his costs as taxed or agreed. No submissions in support of that proposed order were made, nor was it suggested by the Secretary that there was some reason why costs ought not follow the event.

3    In the circumstances, I will make an order in proceeding VID 166 of 2017 that the Secretary pay Mr Sesalim’s costs.

4    In proceeding VID 1297 of 2016, on 7 August 2018, the Court ordered that the time for Mr Sesalim to institute the appeal be extended to 31 October 2016. No other orders were then made on the basis that the parties were directed to give consideration to whether:

(i)    pursuant to s 44(7) of the AAT Act, the Court should make further findings and determine Mr Sesalim’s entitlement to a DSP for the relevant period in question;

(ii)    whether, if the Court declined to do so and remitted the matter for redetermination by the Tribunal, any limitation should be imposed on the scope of the remittal; and

(iii)    who should pay the costs of the appeal.

5    The submissions of Mr Sesalim and the Secretary suggest that the only matter upon which the parties are agreed is that the Secretary should pay the costs of Mr Sesalim’s appeal. I will make an order to that effect.

6    As to the first question, having considered the submissions of the parties and the considerations enumerated by s 44(7) of the AAT Act, I am not persuaded that I should make findings of fact pursuant to the discretionary power given to the Court by that provision.

7    As my earlier reasons (at [26]-[27]) record, the 2016 appeal related to two decisions - the suspension decision of 25 June 2015 and the cancellation decision of 10 July 2015. The Tribunal’s review of each of those decisions principally turned on the Tribunal’s assessment of Mr Sesalim’s PTSD as having a “moderate” functional impact when assessed against most of the activities listed at the “moderate” level of Table 5. As my earlier reasons set out (at [7]-[23]) the task of assigning a rating under Table 5 involves a high degree of complexity and is not a mechanical task amenable to a precise answer but is a task which inevitably involves the making of broad evaluative judgments in relation to which reasonable minds may differ. That is not a simple fact finding exercise. It is an exercise which, by its nature, requires evaluation of a kind which is best left to the Tribunal. That is particularly so given the limited nature of the Court’s discretion under s 44(7) as the observations made in the following authorities demonstrate: May v Military Rehabilitation Compensation Commission (2015) 233 FCR 397 at [233] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ); Martin v Comcare (2015) 238 FCR 373 at [129] (Murphy J with whom Siopis J agreed) and, at [53]-[54] (Flick J).

8    In coming to that view I have taken into account the inconvenience involved to Mr Sesalim and to the Secretary, as well as the relatively short period of the asserted entitlement to DSP in question. Those considerations are relevant but do not outweigh the matters to which I have referred together with the opposition of the Secretary to the course propounded by Mr Sesalim.

9    As to the remaining issue of whether the remittal should be limited, Mr Sesalim has contended that a direction should be made that his “eligibility for his pension not be an issue for consideration”. That matter, it seems to me, is the core issue that needs to be determined on a remittal and I see no basis for its exclusion.

10    Finally, Mr Sesalim contended that an order be made that the matter be remitted to a different member of the Tribunal. At [56] of my earlier reasons, I observed that adverse credit findings were made against Mr Sesalim by the Tribunal member who rejected his application. I also noted concern about the adverse findings that were made. In the circumstances, I accept that it would be more appropriate that, on remittal, the matter be dealt with by the Tribunal differently constituted. Whether that Tribunal member should be the member who has been allocated a related proceeding involving Mr Sesalim, as the Secretary contended, is a matter for the President of the Tribunal.

11    It follows that in VID 1297 of 2016, and further to the orders made on 7 August 2018, orders should now be made allowing the appeal, setting aside the decision of the Tribunal made on 22 March 2016, together with orders remitting the matter for redetermination by the Tribunal and requiring the Secretary to pay Mr Sesalim’s costs of the appeal.

12    I will make orders accordingly.

Associate:

Dated:    11 September 2018