Re Paul Ford v the Director of the Department of Social Security [1993] FCA 21 (8 February 1993)

FEDERAL COURT OF AUSTRALIA

Re: PAUL FORD
And: THE DIRECTOR OF THE DEPARTMENT OF SOCIAL SECURITY
No. Q G117 of 1992
FED No. 50
Number of pages - 9
Social Security

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Drummond J.(1)

CATCHWORDS

Social Security - after time fixed by s. 251(1) of the Social Security Act 1947 (Cth) for writing off or waiving Department's right to recover overpayments expires, s. 246 requires Department to fix periodic amounts to be deducted from benefits in reimbursement of earlier overpayment of benefits.

Administrative Appeals Tribunal Act 1975 (Cth) - ss. 43 and 44

Social Security Act 1947 (Cth) - ss. 246 and 251

HEARING

BRISBANE, 8 February 1993
8:2:1993

The applicant appeared in person.

Solicitors for the respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. Mr Ford's application for an extension of time to file and

serve the notice of appeal is dismissed.

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

DECISION

DRUMMOND J. This is an application for an extension of time to appeal a decision of the Administrative Appeals Tribunal given on 19 December, 1989. The application was filed on 14 August, 1992, two years and eight months after the decision was given. By s. 44(2A)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), an appeal may be brought from a decision of the Administrative Appeals Tribunal "not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is furnished to the person" interested in the decision.

2. There is no evidence that shows when Mr. Ford was furnished with the document envisaged by s. 44(2A), but in paragraph (2) of his application he says:

"An extension of time is required because a notice of appeal
was not filed and/or served within the time specified by
subsection 44(2A) of the Administrative Appeal (sic)
Tribunal Act 1975."

3. Mr. Ford gave oral evidence that he was overseas from 25 January, 1990 until about June or July 1992, but nowhere has he suggested that he was not given the reasons of the Tribunal promptly. In these circumstances, I infer that Mr. Ford did, soon after the decision was published on 19 December, 1989, obtain the reasons of the Tribunal in writing. He claims he could not effectively lodge an appeal because he soon thereafter left Australia at the end of January 1990 and remained overseas continuously until about June or July 1992.

4. By its decision the Tribunal held:

"In all the circumstances the decision under review will be
set aside and in lieu therefore the tribunal decides that
the right of the Commonwealth to recover any debt owing to
it arising out of the overpayments during 1975, 1976 and
1977, which still remain unpaid after 1 January 1990, should
be waived."

5. The Tribunal thus appears to have held that there should be a termination by waiver under s. 251 of the Social Security Act 1947 (Cth) as from 1 January, 1990 (a date about two weeks after it gave its decision) of the deductions that were being made from the benefits Mr. Ford commenced to receive on 24 December, 1987. These deductions were required to be made by s. 246 of that Act and were fixed by a decision of the relevant official at $36.20 per fortnight pursuant to that section.

6. A total of about $5,454.00 was overpaid to Mr. Ford by way of benefits under the Social Security Act in the three years 1975 to 1977 in consequence of false representations by him for which he was convicted and served a term of imprisonment from November 1977 to October 1979.

7. It is not clear from the material before me whether the Tribunal reviewed a decision of 21 October, 1985 - apparently made under a predecessor to s. 251(1), which decision is referred to in paragraph (d) on page 3 of the reasons for decision of the Tribunal - or whether the Tribunal reviewed the decision made pursuant to s. 246(1) (or its predecessor) fixing the fortnightly deduction from those benefits at $36.20 that was made some time between 24 December, 1987 (when Mr. Ford first received his benefits) and 22 August, 1989 (when the matter was heard by the Tribunal). I have been informed from the bar table that it was the latter decision which was the subject of the Tribunal's review and determination in the words I have already indicated. As at 1 January, 1990 the fortnightly deductions that had then been made totalled at least $1,544.00.

8. Mr. Ford brings this present application for an extension of time to pave the way for an appeal against the Tribunal decision insofar as, by its order, it denied him recovery of the sum of about $1,544.00 deducted up to 1 January, 1990 from the benefits he was receiving.

9. The principles upon which the present application should be decided are well established. They can be gathered from the decisions noted in the Australian High Court and Federal Court Practice, Volume 2, at page 56,658 where the Full Court decision of Sukarno v Minister for Immigration and Ethnic Affairs (unreported, 29 June, 1984) and the decision of Wilcox J in Booker v Commonwealth of Australia (unreported, 14 September, 1988) are referred to. The two critical matters that require consideration are first, whether Mr. Ford has shown reasons for his delay such as to excuse the delay and which would justify the court in allowing him to institute an appeal beyond the 28 day period set down by s. 44(2A)(a) of the Administrative Appeals Tribunal Act and secondly, whether Mr. Ford has demonstrated that his appeal may have sufficient prospects of success to make it just that he should be allowed to proceed with it.

10. As to the question of Mr. Ford's prospects of success if he is given leave to institute his appeal, the Tribunal did not give any reasons for its decision to order waiver only as from 1 January, 1990, that is, it gave no reasons for its decision insofar as it denied Mr. Ford recovery of the total of about $1,544.00 that was deducted by fortnightly amounts of $36.20 from his benefits. Section 43(2) of the Act requires the Tribunal to "give reasons either orally or in writing for its decision".

11. It was conceded that a failure to give reasons for a decision in contravention of s. 43(2) gives rise to an error of law which can be appealed to this court. However, it was argued on behalf of the respondent to the present application that the Tribunal should be regarded as having complied with s. 43(2) in the relevant respect because of an exchange that took place between two of the three Tribunal members and counsel for the respondent at the end of argument - an exchange recorded at pages 28-9 of the transcript. I disagree. I do not think the individual views expressed, even strongly, by two of the three members of the Tribunal in an exchange with counsel in the closing stages of argument at the hearing can be regarded as amounting to a decision of the whole Tribunal on the point here in question, sufficient for the purposes of s. 43(2). Nor do I think that Mr. Ford by his counsel abandoned the claim to the refund of $1,544.00. Mr Ford's counsel appears never to have resiled from his request, recorded at page 11 of the transcript, that:

"The applicant would be asking - if the Tribunal rules in
his (Mr. Ford's) favour, ... that consideration be given to
a refund of those deductions that have been made in the
past."

12. On the face of that set of circumstances it thus appears that Mr. Ford might well be thought to have some prospects of success on the appeal.

13. However, on the other hand, there is a substantial argument that the appeal is bound to fail. It was argued by the respondent that since a number of deductions of $36.20 had been made prior to the matter coming before the Tribunal, the Tribunal could not effectively interfere with that matter but could only deal with deductions to be made subsequently. It was submitted by the respondent that the decision of the Tribunal to order waiver from 1 January, 1990 was correct, since it could only order the waiver of amounts recoverable at the earliest date from the date of its own decision in that regard. Reference was made to a number of authorities, including the unreported decision of the Administrative Appeals Tribunal in Re Secretary to the Department of Social Security and VXC (Decision No. 7907), in particular, to a passage in paragraph 45:

"However, as was pointed out in Re Secretary, Department of
Society Security and VXR, the Tribunal's power to waive the
debt in the matter here under review can only be exercised
as that power exists at the date of its exercise, which is
to say, the date of the Tribunal's decision."

14. I do not accept that argument. But the time within which the Department could enforce by proceedings the recovery of the overpayments made to Mr. Ford expired, in terms of s. 251(3), six years from the day on which an officer of the Department became aware of the false representations by Mr. Ford that caused the overpayments. Since Mr. Ford was convicted in respect of those misrepresentations in 1977, the time for instituting proceedings must have expired some time in 1983, at the latest. It may well be that thereafter there was nothing that the Department could waive under s. 251 since it would, after 1983, have no right in terms of s. 251(1)(b)(i) to recover the overpayments from Mr. Ford. Nor did the Department write off the debt comprising the overpayment of benefits in terms of s. 251(1)(a): it only made a decision on 21 October, 1985 to treat the debt as unrecoverable unless and until Mr. Ford should obtain a new benefit under the Act, in which case it would be recouped out of that new benefit.

15. There thus appears to be no ground to qualify s. 246, which would operate to require, as a matter of law, the overpayments to be deducted from the benefits Mr. Ford commenced to receive in December 1987. If there had been no waiver of the right to recover overpayments by late 1983, and no write-off of those overpayments either, it would not thereafter be open to the Department to take any action under s. 251 to relieve Mr. Ford of his liability, imposed by s. 246, to suffer the making of deductions from the benefits he started to get in late 1987. In that case, the only room for a Departmental decision would be in relation to the decision required by s. 246(1) to be made, namely, as to the amount of the periodic deduction that that section required to be made in contrast to whether such a deduction should be made or not. If the position be, as I am now informed from the bar table, that the decision reviewed by the Tribunal was a decision under s. 246, which confers on the Department, as I have said, authority to fix only the quantum of deductions and not authority to determine whether any deduction should be made, then it would seem to me that the decision of the Tribunal was in error. The Department did not, however, appeal against the Tribunal's decision. But if Mr. Ford got from the Tribunal a decision more favourable than that to which he was entitled, he cannot improve his position in an appeal to this Court.

16. There are I think substantial grounds for thinking that if the extension of time were granted, the appeal will not succeed on the merits.

17. As to the second matter that I am required to consider, namely, Mr. Ford's explanation for the delay of about two years and eight months in instituting proceedings to challenge the Tribunal's decision, he has, in his short affidavit, provided the following explanation:

"I couldn't appear at the right time for appeal because I
was overseas and I wasn't in Australia for a long time so I
appeal now so as I'm entitled for an appeal I ask an
extension of time."

18. Mr. Ford does not, in this affidavit or in his oral evidence, say he was unaware of the decision given on 19 December, 1989 soon after it was delivered and for that reason effectively unable to appeal. I have already found that Mr. Ford obtained a copy of the written reasons soon after the decision was published. He does not offer any explanation why, if he was able to afford to go overseas for about two and a half years from the end of January 1990, with knowledge of the Tribunal's decision, he could not have instituted an appeal while he was away. Moreover, although he may well have been overseas for part of the two and a half year period from the end of January 1990 that he spoke of in evidence, I am not prepared to accept his evidence that he was continuously out of the country for the whole of that period.

19. I say that for the following reasons.

20. First, Mr. Ford initially said he left and entered through Brisbane on the occasion of his departure in January 1990 and return in June or July 1992. But when he was cross-examined about what Immigration departmental records were likely to reveal about his exit and re-entry into Australia, he said that he came back, not through Brisbane, but through Sydney - plainly it seems to me, to provide some form of explanation for why there might well be no record of re-entry through Brisbane at the time he suggested. Secondly, Mr. Ford said he left Australia at the end of January 1990 and, after referring to a document which he produced from his clothing in the witness box, he gave 25 January as the specific date. He was, I think, quite evasive when asked what the document was. He said it was just some notes and that he did not have any record of the date he re-entered.

21. Finally, in the course of evidence, I gave Mr. Ford an opportunity to say anything he wished to say about why he wanted the extension of time and, in particular, I gave him an opportunity to say if there was anything else he wished to say about being out of the country in the period he claims to have been absent from the end of January 1990 to the middle of 1992. He said: "I was away a couple of years - I got married in Italy" and appeared not to want to say anything further about the matter. Accepting what he said there at face value, that is inconsistent with what he apparently told the Tribunal back in 1989. At page 5 of the reasons for decision, the Tribunal said:

"He (Mr. Ford) gave evidence that he used a credit card to
travel to Italy on 25 July 1988 and to come back on 25
January 1989. He said that while in Italy this last time he
married a sixteen year old girl".

22. I do not accept that Mr. Ford has shown any reason for the long delay in seeking to attack the decision of the Tribunal.

23. For the various reasons I have outlined, I dismiss Mr. Ford's application for an extension of time.