Hamade v Secretary, Department of Family & Community Services [2003] FCA 1585

FEDERAL COURT OF AUSTRALIA

Hamade v Secretary, Department of Family & Community Services [2003] FCA 1585 DAOUD HAMADE v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Q 106 OF 2003 DOWSETT J 17 DECEMBER 2003 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 106 OF 2003

BETWEEN: DAOUD HAMADE

APPLICANT

AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: DOWSETT J

DATE OF ORDER: 17 DECEMBER 2003

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The applicant pay the respondent's costs of the proceedings, including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 106 OF 2003

BETWEEN: DAOUD HAMADE

APPLICANT

AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: DOWSETT J

DATE: 17 DECEMBER 2003

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 The applicant suffered a work-related injury on 16 August 2000, in connection with which he claimed compensation. Subsequent to the injury, both the applicant and his wife received Social Security payments. The compensation claim was settled, Mr Hamade recovering compensation. Pursuant to the Social Security Act 1991 (Cth) (the "Act") the present respondent was entitled to recover a total of $6,516.46 from the compensation payments to which Mr Hamade became entitled and did so. Subsection 1184(1) of the Act provides: '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.' 2 The applicant applied to the Administrative Appeals Tribunal (the "Tribunal") for review of the Secretary's decision to require a refund and, implicitly, not to exercise his discretion under subs 1184(1). The Tribunal upheld the Secretary's decision. This is an appeal from that decision. As such it is limited to questions of law. 3 The applicant did not identify any question of law in his notice of appeal, save for suggestions that there was no evidence to justify aspects of the decision. The only issue which has been ventilated today is an assertion that the Tribunal wrongfully dealt with a claim that he wished to bring his wife and children back from Lebanon where, at the time of the hearing in the Tribunal, they were living. It seems that Mrs Hamade had left the applicant and taken their children to Beirut. The applicant's case appears to have been that he needed the funds which he would receive if the discretion were exercised in his favour to repatriate his wife and children to Australia. In its reasons, the Tribunal pointed out that there was no evidence that Mrs Hamade would return to Australia even if the applicant wanted her to do so. Nonetheless, it seems that she and the children have now returned to live with him in Australia. The applicant asserts that this fact in some way demonstrates legal error in the Tribunal's decision. 4 The Tribunal dealt with this aspect and other matters raised by Mr Hamade in some detail, having correctly directed itself as to the law. The issue which is presently under consideration is specifically dealt with in par 35 and pars 48 - 50 of the Tribunal's reasons. Much of Mr Hamade's complaint appears to focus upon par 35. That paragraph is as follows: 'In respect of family matters, it was submitted that there was no evidence before the Tribunal to corroborate the applicant's assertion that Mrs Hamade and the children wished to return to live with Mr Hamade and, on the applicant's own evidence, it could be inferred that Mrs Hamade was in the process of taking action in the Family Court for a divorce.' 5 Mr Hamade seems not to understand that this statement reflects submissions made to the Tribunal rather than the Tribunal's considered position concerning them. That position is to be found in pars 48 - 50 as follows: '48. The applicant has also submitted that his family circumstances are special, such that he needs money to re-unite his family. Mrs Hamade has separated from the applicant and has taken her two children with her to live with her parents in Beirut. The parents are retired and live on a pension and Mrs Hamade is in employment. The applicant claims that because of poverty the children now aged 5 and 7 are not at school in Beirut and he wants to give them a good education in Australia. In considering these circumstances, the Tribunal is mindful that Mrs Hamade has taken herself and her children to Lebanon without financial assistance from Mr Hamade and that Mrs Hamade and her children would seem to have secure living arrangements in Beirut. 49. The Tribunal is also mindful that there is no evidence before the Tribunal from Mrs Hamade that she wishes to rejoin her husband, rather it can be inferred from Mr Hamade's less than frank answers about Family Court proceedings, that Mrs Hamade has made an application to the Family Court in respect of divorce proceedings. In any event, should Mr Hamade be successful in maintaining paid employment, there will be an opportunity for the family to re-unite in Australia should Mrs Hamade so wish. 50 Taking all of the family matters into consideration, the Tribunal is satisfied that they do not fall within the category of special circumstances.' 6 The applicant had claimed to have good employment prospects; hence the Tribunal's view as to such prospects. 7 Whether or not circumstances are special is clearly a question of fact. Even if special circumstances are shown to exist, there is still a discretion to be exercised pursuant to subs 1184(1). It is, however, unnecessary for present purposes to go into that matter because the Tribunal disposed of the application on the basis that there were no special circumstances. 8 The applicant submits that the fact that his wife and children have now returned to him demonstrates that the Tribunal erred in its conclusions concerning that matter. That simply does not follow, even as a matter of fact. The Tribunal dealt with the matter on the evidence before it at the time, as it was obliged to do. That events which have occurred since the decision suggest that Mr Hamade's hopes were more realistic than they appeared to the Tribunal is not to the point. In any event, even if there were an error, it would be an error of fact, not an error of law. No error of either kind is demonstrated in this regard. As that is the only point which Mr Hamade raises, it follows that the appeal must be dismissed. 9 The respondent seeks an order for costs against the applicant, the application having been unsuccessful. The applicant resists that application on a number of grounds. Firstly, he says that his motive in bringing the application was to justify himself having regard to a doubt as to his credibility raised by Tribunal. Secondly, he says that he has no money. Neither factor leads me to decline to make an order for costs in favour of the respondent. A third matter is raised which is of some importance. 10 It seems that some months ago, the applicant offered to discontinue the proceedings and sent a notice of discontinuance to the respondent, on whose behalf it was signed and sent to the registry. I am informed by the respondent that the registry declined to accept the document for filing, perhaps because of some doubts as to whether Mr Hamade understood the consequences in costs of discontinuing, or perhaps because he said that he did not want the document filed. 11 In any event, it seems that there was subsequent discussion between the parties as to the possible quantum of any costs order, which discussion led Mr Hamade to abandon his intention to discontinue. Further, his wife had developed a medical condition which he thought he could advance in support of his application today. This also contributed to his decision not to discontinue. 12 I would have thought that a government agency, faced with the opportunity to avoid continued litigation, would explore the opportunity with enthusiasm. I would also have thought that even if the respondent did not accept, at face value, the applicant's assertion that he had no funds, it might well have been prudent to assume that there was at least a chance that this was so and that any order for costs would be of no value. In those circumstances, I would expect such an agency to consider the possibility of discontinuing, with no order as to costs, simply because the certainty of incurring additional costs could not be justified by the mere possibility of obtaining an order for costs. 13 Having said that, however, I am not persuaded that there was anything in the respondent's conduct in this matter which should disqualify it from recovering the costs of its successful defence of the proceedings. Although, with the benefit of hindsight, it now appears that there may have been a greater opportunity to avoid the incurrence of the costs of today than the respondent thought at the time of the discussions between the parties, it would be unfair to be critical of the way in which it has conducted the matter. In those circumstances, I order that the applicant pay the respondent's costs of the proceedings, including reserved costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.