Secretary, Department of Education, Training & Youth Affairs v Ellem [2000] FCA 695

FEDERAL COURT OF AUSTRALIA

Secretary, Department of Education, Training & Youth Affairs v Ellem [2000] FCA 695 ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal ("AAT") – AAT set aside decision of Secretary refusing to remit HEC semester debt incurred by respondent under s 106J of Higher Education Funding Act 1988 (Cth) – s 106L providing for Secretary to remit debt where "special circumstances" apply to person – whether circumstances under person's "control"

WORDS AND PHRASES – "special circumstances" – "control"

Higher Education Funding Act 1988 (Cth) s 106L SECRETARY, DEPARTMENT OF EDUCATION, TRAINING AND YOUTH AFFAIRS v JUSTIN ANTHONY ELLEM N 164 of 2000 LINDGREN J 26 MAY 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 164 OF 2000

BETWEEN: SECRETARY, DEPARTMENT OF EDUCATION, TRAINING AND YOUTH AFFAIRS

Applicant

AND: JUSTIN ANTHONY ELLEM

Respondent

JUDGE: LINDGREN J

DATE OF ORDER: 26 MAY 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 164 OF 2000

BETWEEN: SECRETARY, DEPARTMENT OF EDUCATION, TRAINING AND YOUTH AFFAIRS

Applicant

AND: JUSTIN ANTHONY ELLEM

Respondent

JUDGE: LINDGREN J

DATE: 26 MAY 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1 The Appellant ("the Secretary" – an expression which I will use to include, unless a contrary intention appears, delegates of the Secretary) "appeals" under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") from a decision of the Administrative Appeals Tribunal ("the AAT") given on 1 February, 2000. The decision was to set aside a decision of the Secretary dated 28 July, 1998 and to remit the matter to which the decision related to the Secretary with a direction favourable to the respondent ("Mr Ellem"). 2 Mr Ellem had incurred a debt to the Commonwealth, called an "HEC semester debt", under s 106J of the Higher Education Funding Act 1988 (Cth) ("the Act")in respect of money lent to him by the Commonwealth and used to discharge his liability under the Act to pay a contribution in respect of semester 1 of 1998 of a Bachelor of Science degree for which he was enrolled at The University of Newcastle. The amount of the debt was only $1,792, but I was informed from the Bar table that other cases awaiting resolution raise the same issue as this case does. 3 In circumstances outlined below Mr Ellem requested the Secretary to exercise his power under s 106L of the Act to remit the whole of the debt. The Secretary refused to do so. When the AAT remitted the matter to the Secretary, it did so with "the Direction that there are special circumstances to remit the whole of the debt of [Mr Ellem], in the amount of $1,792, in respect of the Higher Education Contribution Scheme payment relating to his study at University of Newcastle in semester 1, 1998".