Ryde v Secretary, Department of Family and Community Services [2005] FCA 866

FEDERAL COURT OF AUSTRALIA

Ryde v Secretary, Department of Family and Community Services [2005] FCA 866

SOCIAL WELFARE – Social Security payments – debt recovery – waiver where special circumstances – interpretation of requirements Administrative Appeals Tribunal Act 1975 (Cth) s 44 Social Security Act 1991 (Cth) ss 1223(5), s 1231, ss 1235‑1237B, s 1237AAD Federal Court Rules O 52 r 15(2)

Beadle v Director‑General of Social Security (1985) 60 ALR 225 followed Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321 referred to Jess v Scott (1986) 12 FCR 187 followed Re Beadle and Director‑General of Social Security (1984) 6 ALD 1 disapproved Secretary, Department of Social Security v Hales (1998) 82 FCR 154 considered ELNA PEREZ RYDE v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES NSD 174 of 2005 BRANSON J 28 JUNE 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 174 of 2005

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: ELNA PEREZ RYDE

APPLICANT

AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 28 JUNE 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT the appeal be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 174 of 2005

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: ELNA PEREZ RYDE

APPLICANT

AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: BRANSON J

DATE: 28 JUNE 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT

introduction 1 The applicant has appealed from a decision of the Administrative Appeals Tribunal ('the Tribunal') under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act'). 2 Section 44 of the AAT Act empowers a party to a proceeding before the Tribunal to appeal to the Court 'on a question of law' from a decision of the Tribunal. As was observed in Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321 at [21] the question of law stated in the notice of appeal from a decision of the Tribunal is the subject matter of the appeal under s 44 of the AAT Act. 3 The applicant, who conducted her appeal without legal representation, understandably experienced difficulty in identifying the question or questions of law on which she brought her appeal. After giving careful consideration to the original notice of appeal filed by the applicant, and to an amended notice of appeal subsequently filed by her, I formed the view that the only question of law that was raised by those two documents was the following: What is the true meaning of the expression 'special circumstances (other than financial hardship alone)' in par 1237AAD(b) of the Social Security Act 1991 (Cth)? 4 If the answer to this question of law leads to a conclusion that the Tribunal did not properly understand and apply the paragraph, the applicant may be able to establish that the decision of the Tribunal should be set aside and her matter remitted to the Tribunal for consideration according to law. 5 The applicant and the respondent agreed that this appeal should be determined on the basis that it is an appeal on the above question. 6 For the reasons set out below I have concluded that the appeal should be dismissed.