Gough v Department of Social Security [1999] FCA 400

FEDERAL COURT OF AUSTRALIA

Gough v Department of Social Security [1999] FCA 400 ALLAN PAUL GOUGH v SECRETARY, DEPARTMENT OF SOCIAL SECURITY

NG 1033 of 1998

TAMBERLIN J SYDNEY

7 APRIL 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 1033 OF 1998

BETWEEN: ALLAN P GOUGH

Applicant

AND: SECRETARY,

DEPARTMENT OF SOCIAL SECURITY

Respondent

JUDGE: TAMBERLIN J

DATE: 7 APRIL 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT Ex-Tempore Judgment 1 This is an appeal from the Administrative Appeals Tribunal filed by Mr Gough in relation to a decision given orally by the AAT with respect to an application for review by it. The appeal is brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT")which provides that a party to a proceeding before the AAT may appeal to the Federal Court of Australia on a question of law from any decision of the AAT in that proceeding. 2 The notice of appeal which has been filed by Mr Gough claims that the question of law raised is whether there are "special circumstances" upon which the AAT should treat the payment of compensation to the appellant as not having been made. The orders sought in the notice of appeal are that the decision of the AAT be set aside, and that the matter be remitted to the AAT differently constituted to be determined according to law. 3 Mr Gough contends that the AAT erred in law in finding that special circumstances did not exist. The requirement for special circumstances is to be found in the provisions of the Social Security Act 1991 (Cth), in particular s 1184(1), which provides that:

"For the purposes of this Part, the Secretary may treat the whole or part of a compensation payment as:

(a) not having been made; or

(b) not liable to be made;

if the Secretary thinks it is appropriate to do so in the special circumstances of the case." (Emphasis added) 4 The question squarely raised in the matter is whether there was evidence before the AAT on the basis of which it was open to it to find that there were "special circumstances". The conclusion of the decision-maker was that there were no "special circumstances". In the course of the oral decision delivered by the AAT, the decision-maker gave reasons and reviewed the evidence, stating that she had reviewed the evidence taking a "global approach", and that she was not satisfied that there were special circumstances in the factual matrix surrounding this case. 5 The decision-maker considered that for "special circumstances" to be found there must be circumstances which are unusual, uncommon, or exceptional. Reference is made in the course of the reasons of the decision-maker to relevant judgments of the Federal Court on this question. In my opinion, there was sufficient evidence before the AAT upon which it was open to make the findings and accept the evidence, which it did, in order to reach its conclusion. 6 There is no question in the present case about the correctness of the calculations and the sole question is that of special circumstances. The decision-maker has acknowledged the pain and suffering Mr Gough has experienced since his accident in 1987, and has taken into account the impoverished state in which Mr Gough now finds himself as set out in his evidence before the AAT and in the applicant's address before the Court this morning. Also, I consider that regard was had by the decision-maker to the other health problems suffered by Mr Gough. However, having regard to the evidence in relation to two specific matters raised, which are discussed below, and looking at the matter globally, the AAT reached the conclusion that the application for review before it should not be granted. 7 The two circumstances or specific matters which were raised were of a factual nature. The first was that Mr Gough complained that the solicitor he consulted did not properly handle the matter and that he was not given proper attention and that as a result he did not properly appreciate his position. There was evidence before the AAT of a review of the solicitor conducted by the Law Society in which the solicitor was in effect exonerated from blame in relation to the matter. 8 There was also evidence in relation to a second matter concerning a conversation with Mr Kane, who was an officer of the Department, as to an alleged assurance said to have been given by Mr Kane that Mr Gough would be paid the amount of compensation without any deduction. There was some evidence both ways on this question but the decision-maker preferred the evidence given by the documentary record and also by Ms Kemp, who is the ex-wife of the applicant, on that question. 9 Having regard to everything that has been put before me and having considered the reasons for decision of the AAT, together with the transcript, which I have been carefully taken through, and the documents which were before the AAT, I am not satisfied that any question of law has been raised in this matter or any issue as to misinterpretation of the provisions of the Act has been established. Accordingly, no error of law or principle having been shown, I dismiss this appeal. 10 In the circumstances and having regard to the material which is in place before me and what has been said to me by Mr Gough as to his very difficult circumstances, I am satisfied that this is not an appropriate matter in which I should make any order as to costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin