Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Walsh [2008] FCA 1098

FEDERAL COURT OF AUSTRALIA

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Walsh [2008] FCA 1098

Social Security Act 1991 (Cth) s 1237A(1) SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS v JULIE-ANN WALSH

NSD 255 OF 2008

BUCHANAN J

22 JULY 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 255 OF 2008

BETWEEN: SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

AND: JULIE-ANN WALSH

Respondent

JUDGE: BUCHANAN J

DATE OF ORDER: 22 JULY 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The cross-appeal is allowed. 2. The decision of the Administrative Appeals Tribunal is set aside. 3. The matter be remitted to the Administrative Appeals Tribunal for further consideration. 4. The appeal is dismissed. 5. There be no order as to 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 NSD 255 OF 2008

BETWEEN: SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

AND: JULIE-ANN WALSH

Respondent

JUDGE: BUCHANAN J

DATE: 22 JULY 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT BUCHANAN J: 1 This matter concerns an appeal from a decision of the Administrative Appeals Tribunal ('the AAT') given on 29 January 2008 and a cross-appeal from the same decision. The applicant sought to recover an overpayment of carer's payment to Ms Walsh by Centrelink. Ms Walsh alleged the overpayment was due to an administrative error by Centrelink. In the decision under challenge, the AAT concluded that overpayment arising between 16 November 2002 and 24 May 2004 was not solely attributable to an error by Centrelink and therefore must be repaid but overpayment from 25 May 2004 was solely attributable to administrative error in Centrelink and therefore was waived under the provisions of the Social Security Act 1991 (Cth) (see s 1237A(1)). The appeal by the applicant in the present matter concentrated upon the second finding while the appeal by the respondent/cross-applicant concentrated on the first finding. 2 I commenced to hear this matter on 5 June 2008. During the course of those proceedings, and after I had given leave for Ms Walsh to rely upon her cross-appeal, counsel for the applicant accepted that several grounds in the cross-appeal ought be conceded. Further time was sought to make an assessment of the consequences of that circumstance and the proceedings were adjourned. On 20 June 2008 I was informed that the applicant's desire was that, although identified grounds of the cross-appeal were conceded, the original appeal and the cross-appeal should proceed. Accordingly the matter was listed for further hearing today. 3 Today Mr Kennett, counsel for the applicant, has accepted that the cross-appeal should be allowed, at least in part, and the decision should be set aside and the matter remitted to the AAT but he informed me that the applicant wished nevertheless to argue the matters raised by the original appeal. Ms Sant, counsel for Ms Walsh, does not oppose that suggestion. However, it appears to me that there are insurmountable difficulties in the path of proceeding in the way suggested. 4 The principal issue which the applicant wishes to agitate on its appeal concerns a conclusion by the AAT that, when Centrelink was assessing her carer payment, it was appropriate to pay regard to information provided by Ms Walsh for the purposes of a family tax benefit also paid to her. The AAT decision records at paragraph 30: 'It was submitted the carer payment and FTB are governed by different pieces of legislation with different definitions of "income" apply [sic] to each payment type.' However, the AAT concluded that, by not applying the information supplied by Ms Walsh with respect to her family tax benefit, Centrelink had made an error and that error was the sole cause of the overpayment of carer payment from 25 May 2004 when Ms Walsh provided the information concerning the family tax benefit. 5 There are a number of difficulties with the proposition that this represents a suitable foundation to continue to hear the original appeal even though it is now conceded that the decision should be set aside and the matter should receive further attention from the AAT. One is that the errors which are conceded in relation to the cross‑appeal may make it unnecessary for the AAT to pursue the same line of reasoning with respect to the period after 25 May 2004. The issue with which the applicant is concerned therefore may or may not arise again or in the same form when the matter receives further consideration. Another question is whether the approach taken by the AAT raises a question of law or whether in the circumstances the decision turned entirely on questions of fact. That issue, also, may or may not remain for attention. 6 In circumstances where it is agreed that the decision should be set aside, I am not persuaded that it is a useful course for the Court to provide what could be no more than an advisory opinion about the approach that was taken in the earlier decision. 7 The course which I propose to take is to allow the cross-appeal and set aside the decision of the AAT and remit the matter to the AAT for fresh consideration. I will not impose any fetter upon the issues which may be raised in that respect. The way in which the AAT approaches its task will be a matter for it in the light of the facts as then found with the benefit of the corrections which the parties have agreed. The way in which the AAT is to be constituted will be a matter for the President of the AAT. It seems to me that the appeal is moot and should be dismissed. 8 The parties were agreed that the applicant would pay Ms Walsh's costs of the proceedings and that there was no need for a formal order to that effect. 9 The orders that I will make are: 1. The cross-appeal is allowed. 2. The decision of the Administrative Appeals Tribunal is set aside. 3. The matter be remitted to the Administrative Appeals Tribunal for further consideration. 4. The appeal is dismissed. 5. There be no order as to costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.