Director-General of Social Services v Hales, Jeanette Shirley [1983] FCA 81

" ON APPEAL FROM THE' ADMINISTRATIVE "APPEALS TRIBUNAL :

BETWEEN: DIRECTOR-GENERAL OF SOCTJAL SERVICES Applicant AND

This is an appeal by the DIRECTOR-GENERAL OF SOCIAL

SERVICES ("Director-General") from the whole of the decision of the Administrative Appeals Tribunal made 23 April 1982 in

proceedings wherein JEANETTE SHIRLEY HALES ("respondent") had

sought a review of a decision of a Delegate of the Director-General. The precise formulation of what was the decision and on what grounds she had sought review have been matters of some discussion. To these matters I shall return

later. But first, in order to understand the matter, 1t is

On 16 August 1973 the respondent lodged a claim for a "benefit" appropriate to a "supporting mother" within the meaning

of s.83AAA of Part IVAAA of the Social Security Act 1947 ("the

Act"). In her application she stated that she was employed by the Postmaster General Revenue Section and that the gross amount

she had earned over the last twelve months had been $3,533.00.

On 7 September 1973 respondent was advised that payment of supporting mother's benefit had been approved at a fortnightly rate of $13.80 commencing from 3 July 1973. She was at the same time told that she was required to notify the Department if, in addition to her Social Security Benefit, she received income in excess of $72.25 per week in any period of two weeks, such notification to be within fourteen days of the expiration of that

On 15 January 1974 the respondent wrote to advise her

wage had increased to $166.76. This was a reference to a fortnightly payment. She asked that her pension be adjusted. By letter dated 7 February 1974 she was advised her pension had been varzred from $17.80 to $6.60 commencing from 12 February 1974. She was again told that she was required to notify the Department if, in addition to her social security benefit, she received income in excess of $83.38 per week in any period of two weeks such notification to be within two weeks cf the expiration of that

On 4 July 1974 the respondent received a form headed "Income and Property Statement - Age, Invalid & Widows' Pensions". Under her name it was stated "Pensions are reviewed each year to ensure that the correct rate of pension 1s being paid. If this form is not returned the pension may be

On 15 July 1974 she completed that form including stating that her earnings for a fortnight were $173.06 and returned it to the Department which received it on 26 July 1974. A questionnaire was also sent to the then Postmaster-General's Department where she worked. On 17 September 1974 she _ was informed by letter that her benefit had been reviewed and altered, that her fortnightly rate was varied from $22.60 to $15.80 commencing from 24 September 1974. She was advised again of the requirement mentioned above, this time that if she

received income in excess of $90.25 per week she should notify

Later it was ascertained that since 15 February 1975 her wage had been in excess of $90.00 per week. By letter dated 10 May 1978, respondent was asked, if her income was in excess of what was last nota fied, to complete and return a section on the form. On 13 May 1978 she did so, advising of a "take home pay" of $312.77. This was received by the Department on 29 May 1978.

On 22 June 1978 she was advised by letter that the benefit would

no longer be payable because of the amount of her income.

By letter dated 28 March 1980 and following calculations made, the respondent was requested to refund $3,564.30 to the Collector of Public Monies, Department of Social Security at the earliest convenience. The respondent appealed to a Social

Security Appeals Tribunal. It considered that the appeal should

in that the overpayment should not be recovered beyond 29/5/78 when Miss' Hales notified per SA100;" this last mentioned date, as I have said, being the date when the

Department received the information supplied to 1t in response to

On 2 April 1981 the First Assistant Director-General Legislation and Review of the Department of Social Security wrote advising respondent that a Deputy Director-General of the Department, being a delegate of the Director-General, had concluded, apparently about February 1981, that she had failed to notify the Department of increased earnings received on 13 November 1974 by 27 November 1974; that all supporting parent's benefits paid to her from the following payday, viz. 3 December 1974, was an amount which should not have been made; but that in view of the fact that she had notified her increased earnings on 29 May 1978 the excess payment after payday 25 May 1978 was due to administrative processes and should not be recovered. The amount claimed to be due was said to have been recalculated at

$3,632.70 for the period from 3 December 1974 to 25 May 1975.

She was advised of her right to apply for a review of the

Decision to the Administrative Appeals Tribunal (AAT).

It 2s common ground that there was an overpayment of $3,632.70 and that there had been a failure by the respondent to

It 1s accepted and this matter proceeded upon the basis that the respondent did apply to the AAT for a review of a decision. There is not in existence, so far as appears or we have been told, the form referred to in s.29 of the

Administrative Appeals Trabunal Act 1975 and Schedule 1 of the

In the s.37 documents the "decision" 1s referred to thus -

",...a decision of a delegate of the DIRECTOR-GENERAL OF SOCIAL SERVICES, affirming a decision of an officer made under the Social Services Act 1947 which decision was reviewed by a Social Security Appeals Tribunal, that she had been paid a total amount of supporting mother's and supporting parent's benefit of $3632.70 more than she was entitled to be paid and that this amount was recoverable from her as a debt due to the Commonwealth."

oe ea decision of a delegate of the Director-General of Social Services ("the respondent") seeking to recover monies paid to the applicant for supporting mother's benefit in the sum of $3,632.70 pursuant to

sub-section 140(1) of the Social Services Act 1947."

In argument, senior counsel for the Director-General

"....decision to seek to recover monies being an amount agreed as $3632.70 paid without warrant to the applicant purporting to be a supporting mother's benefit"

though without conceding there had been a decision to which s.25

of the Administrative Appeals Tribunal Act 1975 or s.15A of the Act applied.

Senior counsel for the respondent agreed with the above formulation but submitted there should be added after "seek to recover moneys", the phrase -

"pursuant to the provisions of s.140(1) of the Act." He submitted that a decision to debit respondent in the Department's records is an anterior decision but only part; the

decision was to do that and to proceed with recovery proceedings.

In its Reasons of 23 April 1982 the AAT substituted its own view as to what was the "proper course" in respect of payments made to the respondent for the period from 3 December 1974 to 25 May 1978 and directed her to refund overpayments attributable to the first pension year after 17 September 1974

but not for subsequent years. The Reasons for Decision include

"Nevertheless on the facts of this matter the Department knew from the beginning that the

applicant was actually informed that pensions were reviewed each year "to ensure that the correct rate of pension 1s being paid". It seems from the s.37 statement that the Department did not ain fact rely on the information supplied under s.74 but sought its own information as to the applicant's wages. I accept that it was the applicant's genuine belief that the manner of review would be instituted by the Department. On these facts the applicant was given to understand that there would be departmental review annually. In my view it is proper to regard the failure of the Department to perform its functions as the substantial or dominating cause of the overpayment. The applicant's failure can best be regarded as a contributory cause but not the effective cause.

Even if I am wrong in this conclusion there are in this case other factors which warrant the exercise of a discretion against substantial recovery from this applicant. There would be, in my view, extreme hardship to the applicant and to her 16 year old invalid pensioner daughter. There would also be scant chance of action of recovering the monies being effective.

subsequent years which should have been ' disclosed to the respondent by the annual

review which the applicant understood on good ' grounds, would be conducted."

Against that decision the Director-General has appealed to this Court. By Amended Notice of Appeal dated 24 September 1982 the following Orders were sought -

2. That in lieu thereof there be substituted orders -

(a) That the said decision of the applicant be confirmed.

(b) That the respondent has been overpaid by way of supporting mothers benefit and supporting parents benefit an amount of $3,632.70 recoverable by the applicant in a Court of competent jurisdiction as a debt due to the

That the decision of the Tribunal and the reasons of the Tribunal for making the said decision were contrary to and wrong in law.

That the Tribunal should have affirmed the decision of the applicant that the

respondent had received an overpayment of $3,632.70.

That the Tribunal should have held that in consequence of a failure or omission by the respondent to comply with the provisions of the Social Services Act 1947 an amount of $3,632.70 had been paid to the respondent by way of supporting

mothers benefit and supporting parents benefit which would not have been paid but for the failure or omission.

failed to apply the provisions of section 140 of the said Act.

to apply or to apply correctly the provisions of Part 11 and Part 1VAAA and Part 1X of the said Act.

That the Tribunal erred in law in holding that section 140 of the said Act only applied if the failure or omission of the respondent to notify the applicant of an increase in her income was the effective and not merely a contributory cause of an overpayment.

That the Tribunal erred in law in finding or holding that the failure or omission of the respondent to notify the applicant ef an increase in her income was not the effective cause of an overpayment.

That the Tribunal erred in law in finding or holding that a failure of the Department of Social Security to perform its functions was the substantial or dominating cause of the overpayment to the respondent.

That the Tribunal erred in law in holding that when an overpayment of pension, allowance, endowment or benefit had been made as a consequence of a failure or omzssion to comply with any provisions of the said Act the applicant had a discretion to recover all or none of the overpayment.

That the Tribunal erred in law in deciding that the applicant made a decision within the meaning of section 25 of the Administrative Appeals Tribunal Act 1975 to recover the amount of the overpayment to the respondent.

That the Tribunal had no jurisdiction to entertain the application to the Tribunal by the respondent.

section 43 of the Administrative Appeals Tribunal Act 1975 or otherwise to direct

whole of the amount of the overpayment to the respondent.

That if (which is denied) the Tribunal had power to direct the applicant not to seek recovery of the whole of the amount

of the overpayment to the respondent, then the Tribunal erred in law in so

determining that the applicant or the Department of Social Security failed to perform its functions in relation to the respondent.

Did the applicant make a decision within the meaning cf section 25 of the Administrative Appeals Tribunal Act 1975 to recover the amount of the overpayment to the respondent?

Did the Tribunal have jurisdiction under section 25 or any other provision of the Administrative Appeals Tribunal Act 1975

to entertain the application to the Tribunal by the respondent?

What 1s the proper meaning and effect of section 140 of the Act?

Further to question 3, but without limiting the generality thereof,

(a) Does sub-section 140(1) confer upon the Director-General or any other person a power or discretion to determine whether or not to recover overpayments of pension in circumstances in which there is in fact an overpayment that 1s recoverable in law?

(b) What 1s the meaning and effect of the expressions "but for" and "in consequence of" in sub-section 140(1)?

(c) Does the failure of the recipient to comply with a provision of the Act have to be an "effective" and not merely "contributory" cause of an overpayment before the amount of the overpayment is recoverable under sub-section 140(1)?

What is the meaning and effect of section 43 of the Administrative Appeals Tribunal Act 1975?

Further to question 5, but without in any way limiting the generality thereof, did the Tribunal have the power to direct the applicant not to seek recovery of the whole of the amount of the overpayment to the respondent?

If the Tribunal had a discretion or power to direct the applicant not to seek recovery of the whole of the amount of the overpayment to the respondent did it err in law in determining so to direct the applicant?"

"15. A person affected by a determination, direction, decision or approval of an officer under this Act (except a determination, direction, decision or approval of the Director-General) may, within such time (2f any) as 1s prescribed, appeal to the Director-General and the Director-General may affirm, vary or annul the determination, direction, decision or approval.

15a. (1) Where the Director-General has, on or after 9 September 1980 1n pursuance of section 14 or 15, made a decision affirming, varying or annulling a determination, direction, decision or approval of an officer, being a determination, direction, decision or approval that has been

reviewed by a Social Security Appeals Tribunal, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, an application may be made to the Administrative Appeals Tribunal for review of the decision of the Director-General.

59. (1) In thas Part, unless the contrary intention appears -

"widow" includes - (a) a dependent female; (b) a deserted wiife;

(c) a woman whose marriage has been dissolved and who has not remarried; and

(e) a woman whose husband has been convicted of an offence and is imprisoned and has been imprisoned for a period of not less

than 6 months, including any pericd of imprisonment prior to and continuous with

a period of imprisonment following upon the conviction,

but does not include a woman who 1s living with a man as his wife on a bona fide domestic basis although not legally married to him.

74. (1) Where the average weekly rate of income, other than pension, received in any period of 8 consecutive weeks by a pensioner who 1s not in receipt of an allowance under section 65A is higher than $20 per week and is higher than the average weekly rate of the income last specified by her in a claim, statement or notification under this Part, the pensioner shall, within 14 days after the expiration of that period, notify a Director

of the amount of the income received by her in that period.

within the meaning of this Part, by reason that she -

woman referred to in paragraph (e) of the definition of "widow" in sub-section 59 (1); or

(121) commences to live with a man as his wife on a bona fide domestic basis although not legally married to him;

(b) a child ceasing to be in the custody, care or control of a pensioner;

(ba) a person who, by virtue of section 59A, is to be treated as a child in the

custody, care and control of a pensioner - (1) ceasing to be wholly or

59(4) applies ceasing to be maintained by a pensioner; or

(c) a pensioner becoming an iunmate of a benevolent home,

the pensioner shall, within fourteen days after the occurrence of the event, notify a Director accordingly.

Australia without first giving to a Director notice of her intended departure from Australia.

Penalty: $40" We were told that a provision since repealed, s.74(2), initially provided for repayment. But since 1976 the relevant section 1s 74(1). It ius agreed nothing turns on the difference in

expression between the former s.74(2) and the present s.74(1).

(b) by reason of the failure of a pensioner to comply with section 73 or 74; or

the Director-General considers that the pension which is being paid to a pensioner should be cancelled or suspended, or that the rate of the pension which is being paid to a pensioner 1s greater or less than 1t should be, the Director-General may cancel or suspend the pension, or reduce or increase the rate of the pension, accordingly.

83AAG. (1) Section 61 and Divisions 3A, 4, 5 (other than section 68), 6 and 7 of Part

1V apply in relation to a beneficiary as if the beneficiary were a widow for the purposes of that Part.

(2) For the purposes of the application, by virtue of sub-section (1) of this section, of section 75 in relation to a beneficiary, the reference in that section to

section 59AA shall be read as a reference to section S3AABA.

(b) obtain payment of a pension, allowance, or benefit under this Act, or of an instalment of such a pension, allowance, or benefit, which is not payable;

140 (1) Where, 1n consequence of a false statement or representation, or in consequence of a failure or omission to comply with any provision of this Act, an amount has been paid by way of pension, allowance, endowment or benefit which would not have been paid but for the false statement or representation, failure or omission, the amount so paid shall be recoverable an a court of competent jurisdiction from the person to whom, or on whose account, the amount was paid, or from the estate of that person, as a debt due to the Commonwealth.

(2) Notwithstanding anything contained in this Act (other than sub-section (3) of this section), where, for any reason, an amount has been paid by way of pension, allowance, endowment or benefit which should not have been paid, and the person to whom that amount was paid is receiving, or entitled to receive, a pension, allowance or benefit under this Act (other than a funeral benefit under Part IVA), that amount may, if the Director-General in

his discretion so determines, be deducted from that pension, allowance or benefit.

(3) An amount referred to in sub-section (2) that has been paid otherwise than by way

of "family" allowance under Part Vi shall not be deducted from family allowance payable under Part Vl."

The Administrative Appeals Tribunal Act 1975 provides -

(3) A reference in this Act to a decision includes a reference to -

(a) es eeee (b) ..eee (c) eee (d) ..eee (e) making a declaration, demand or requirement; (£) «2... (g) ..eee

25. (1) An enactment may provide that applications may be made to the Tribunal -

(a) for review of decisions made in the exercise of powers conferred by that enactment; or

exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

29. (1) An application to a Tribunal for a review of a decision -

(b) may be made ain accordance with the prescribed form;

(c) shall set out a statement of the reasons for the application; and

(d) if the terms of the decision were recorded in writing and set out ina

document that was furnished to the applicant or the decision 1s deemed to be

made by reason of the operation of sub-section 25(5) + shall be lodged with the Tribunal within the prescribed time.

that is the subject of an application for a review by the Tribunal shall, within 28 days

(a) a statement setting out the findings on material questions of fact, referring to the evidence or other material on which

those findings were based and giving the reasons for the decision; and

The submission of senior counsel for the Director-General included that the Director-General had not made

a positive "decision" within the meaning of s.15A of the Act or s.25 of the Administrative Appeals Tribunal Act 1975, though he did not wish to rely on that argument finally to decide this matter. He described what had happened as being a "step in the process of getting the money back"; the decision may have been

that a debit be raised and that 1t be recovered or pursued. He argued also that any Gecision taken to sue would not be one under

Senior counsel for the Director-General submitted that

the "decision" by the Director-General that an amount of money was recoverable was not one which was reviewable, so that there

was no jurisdiction in the AAT; even 1f£ there had been a decision subsequently to recover the overpayment; that if the

stage had been reached where somebody intended to do something

about the matter, that "decision" nor even any subsequent "decision" to 1ssue a summons was not reviewable; the "decision" that moneys were recoverable could not properly be described as a "decision under" the Act. Such decisions, made under ss. 14 or 15 of the Act by the Director-General, are, by s.15A of the Act, subject to review by the AAT. All that had been done here was by a public servant in that capacity looking after the revenue of the Crown, rather than performing an exercisable power under the

Act. He referred to R. v. Clyne; ex parte Harrap (1941) V.L.R. 200; Evans v. Friemann (1981) 35 ALR 428; Deputy Commissioner of

Patents v. Board of Control of Michigan Technological University (1979-80) 28 ALR 551; Collector of Customs (N.S.W.) v. Brian

Lawlor Automotive Pty. Ltd. (1979-1980) 24 ALR 307. Counsel

preferred, however, to rely on a more general submission that the AAT's decision was fundamentally wrong. Referring specifically to s.140, he submitted that the AAT' had accepted that the respondent thought the Department would send her a notification each year which she would then complete thus giving it the necessary information; that since the Department did not do this that therefore her failure to comply with the Act was not the

effective cause of the overpayment. He argued that what the AAT

had been concerned with was the cause of what had happened rather than a more specific consideration of the language of s.140; and even 1f£ "cause" does equal "consequence", the AAT failed to ask the real question of itself, viz., whether the overpayment was a consequence (cause) of the failure to notify. He submitted the section really asks, if there was an omission (failure by respondent to notify) was it in consequence of that that an amount was paid which except for the omission would not have been paid. He submitted that the AAT was in error in interpreting s.140(1) as requiring a failure to comply with the Act to be an effective and not merely a contributory cause; whereas, to entitle recovery under that section 1t was sufficient to show that overpayment followed on from the omission in circumstances where there is a connection between the two. He contended that "in consequence of" extended to cover things that follow on something else and have connection therewith. He referred to

McIntosh v. Federal Commissioner of Taxation (1979) 25 ALR 557.

The use of the words "but for", he suggested, made 1t plain that there had to be a connection, not merely

temporal; and only in that sense would causation be implied.

He drew attention to sections of the Act which require pensioners to provide information, 1.e. being an offence 1f they do not; presupposing that information will be supplied capable of being relied upon by the department. The scheme of the Act

was, he contended, to put very squarely on pensioners the onus of

telling the department facts which may effect the entitlement to pension; whereas the Director-General had power to enquire as to

a pensioner's wages but no positive statutory duty to do so. J

As an alternative, he submitted that 1f one had to find the respondent's omission was the effective cause of Overpayment, 1t was not open to the AAT to find the failure not an effective

Further, he contended that there was no basis upon which the (implicit) finding that the Department had failed to perform 1ts function could have been made; there was no duty on the department to check wages or advise pensioners. He submitted there was no way in which any discretion to sue to recover the

overpayment could be controlled by the AAT; that the

Director-General was bound to sue unless he followed Audit Act

1901 ("the Audit Act") s.70C procedures giving power in the Minister to write off moneys. In fact, there was a delegation under s.70A of the Audit Act to the Director-General to perform that function in respect of the Act. As a separate argument he

contended that if there was a discretion in the AAT to forgive or excuse repayment, 1t had not been properly exercised anyway in that e.g. public money had been paid out; hardship on the pensioner was therefore not the only consideration when one exercised a discretion. There was, he said, no balancing exercise carried out by the AAT ~- this being essential in any

He summarised his argument that if there was a decision

being considered by the AAT it was not a decision to which the

Administrative Appeals Tribunal Act 1975 applied, not being one

under the Act. If there was a decision which could be reviewed, findings were made which were wrong and if there was a discretion the way in which the Tribunal found it ought be exercised was

wrong and made without regard to significant factors.

Senior Counsel for the respondent submitted that there had been a relevant "decision" (outlined earlier above) which was an administrative decision; that this Court should say that it was Open to the AAT to find and direct as it did. He submitted it was an essential part of the administration of the Act to make decisions as to whether overpayments ought be recovered; s .140 limits the circumstances of recovery; so decisions to recover

He referred to Re Gee and Director-General of Social

Services (1980-81) 3 ALD 132 (Gee) Matteo and Director-General of

Social Services, (1981-1982) 4 ALD 398 (Matteo); Forbes and

Director-General of Social Services, unreported, delivered on 24

December 1981 (Forbes); Re Buhagiar and Director-General of

He submitted there had been a decision that respondent

owed the money and also to seek to recover 1t. Part of that

decision or anterior to it was one to raise an overpayment or

He argued that the "decision" of the Director-General to seek recovery of the overpayment was one taken in the exercise of

a discretion, which could be subject of review by the AAT; that

this Court should say, as a matter of construction of the Act, that it was within the competence of the AAT to review the exercise of that discretion. He submitted that on a proper analysis of the Act 1t might be expected that the recipients of pensions might be given some statutory direction as to what they must do; that it would be "highly desirable" if there had been

some proper explanation as to why no action was taken.

He argued that having regard to the obligations on the Director-General, including one not to overpay, and having regard to all the circumstances, it was proper to say the Department had failed to perform its function in the relevant period; that it was an abdication of responsibility to simply rely upon the notification under sections of the Act such as s.74; that its

Counsel also made submissions as to the construction of s.140; that the legislature was trying to set a test involving the overpayment having been caused as the responsibility or the action or inaction of the pensioner; that the intention then was

that recovery ought not to have been effected unless the

pensioner's behaviour really had brought about the situation of overpayments having taken place. He submitted that the words "but for" implied a higher degree of causative connection than "in consequence of". The effect of this argument was that for the pensioner to be liable her conduct must have gone beyond being merely an action which might lead to a consequence. So, he argued, the overall approach of the AAT can be justified logically when it said, in effect, for the first year, but for the pensioner's inaction, the overpayment would not have occurred. Thereafter there were other supervening factors

referring, it seems, to the alleged inaction of the Department of Social Services; that by the end of the first year the Department

must have known it was overpaying; that it was the duty of the Director-General to fix pensions at an appropriate level the obligation on the pensioner being ancillary to that of the

Director-General. He referred to Gee, to Matteo and to Frederick

Braby and Company, Limited v. Bedwell (1926) 1 K.B. 456 (Braby).

First it is necessary to consider what "decision" was being reviewed. In the circumstances, I consider, having regard to the terms of s.37(1)(a) of the Administrative Appeals Tribunal Act 1975, it should be accepted that the" decision" under review was that set out in the documents lodged pursuant to that section. To do otherwise would be to entertain an appeal against

a notional review of other than the actual decision taken. It

may be that the AAT in 1ts Reasons quoted earlier was doing no more than in a short hand way referring to what was so set out rather than attempting to set out explicitly the "decision" it

was to review. It appears to me to be reasonable so to assume.

As to what is a "decision", Director-General of Social Services v. Chaney (1980) 31 ALR 571 is of assistance, though the circumstances were different. There a widow's pension had been sought and refused. She sought to have a decision whether she was entitled to a widow's pension for which provision 1s made in Part 1V of the Act. There was a preliminary hearing before the President of the Tribunal. He held the Tribunal had jurisdiction to review. There was an appeal to the Full Federal Court against this. Deane J., one of the majority in the judgment, said at

"The word "decision" 1s a word of indeterminate meaning. In some contexts, it can refer to the mental process of making up one's mind. In the context of judicial or administrative proceedings, the word will ordinarily refer to an announced or published ruling or adjudication. In such a context, the word "decision" may be apt to include the determination of any question of substance or procedure, including, for example, rulings on procedural questions such as whether particular evidence should be received, or the meaning of the word may be limited to a determination effectively resolving an actual substantive issue. When the word "decision" has the last-mentioned limited meaning, 1t can refer to any such determination whether final

or intermediate (see, e.g. Registrar of Workers' Compensation Commission v FAI Insurances Ltd (1977) 1 NSWLR 422 at 448) or be lamited to referring only to a

(1933) NZLR 289 at 295; Penniel v Driffill (1980) WAR 30 at 32)."

"The provisions of s.3(3) would seem more apposite to define a reference to the substantive "decision" of the original decision maker than to confine the scope of a reference to a "decision" of the Tribunal upon review. Subject to that qualification, the specific activities mentioned in the definition in s.3(3), which are in the nature of effective action rather than intermediate "decision" on the path to such action, provide some indication that a reference to "decision" aun the Act is, prima facie, a reference to the ultimate or operative determination rather than a reference to an adjudication or determination of issues arising in the course of making such an ultimate or operative determination."

"In its general sense the meaning of the word "decision" appearing in the Shorter Oxford Dictionary is: "The action of deciding (a contest, question, etc.); settlement, determination; (with a and pl) a conclusion, judgment: esp one formally pronounced in a court of law 1552": see also Re Kent County Council and Council of Dover (1891) 1 QB 725 and Reidy v. Herry (1897) 23 VLk 508, where at p-.510 Williams J said: "Now I take it that an adjudication or decision of justices is something which 1s announced but not what is passing in the minds of the justices. It isa decision announced in open court. That is their decision or adjudication.""

I do not understand that his impressions in this area

were different from the opinions of the other members of the

nor do I imply that decisions which are subject to review

comments on the meaning of "decision" see also per Northrop J. in

Ricegrowers Co-operative Mills Ltd. v. Bannerman & Anor. (1981)

In Duncan v. Defence Force Retirement and Death Benefits

Authority and Commonwealth of Australia (1980-81) 3 ALD 113 at p.117 it 1s implied that a "decision" should be found to be a

pronouncement which alters rights or imposes a liability; but 1t

"The Authority did not alter rights, nor ampose a liability. The legal liability of the applicant to contribute under s.19 and his legal entitlement under s.23 were alike unaffected by the Authority's view: the Authority had no power judicially to decide these matters, nor to determine them in any final sense. Yet in practice, as we were told, the Authority's view is accepted by the Navy Pay Office which makes the deductions from pay in accordance with ss.17 and 19 of the DFRDB Act, and no doubt the Authority authorizes the making of payments under s.23 in accordance with its view of a particular member's entitlement. The Authority declared what was the measure of the applicant's liability to contribute, and although the declaration did not affect the applicant's true legal liability, 1t was nevertheless effective in practice to prevent the deduction of a larger contribution from Captain Duncan's pay. And the Authority refused 1ts consent to the making of a larger contribution. What the Authority did thus fails within one or more of the categories defined by s.3(3) of the AAT Act to constitute a "decision"."

The significant aspect of the declaration of payments was that it was "effective 1n practice to prevent the deduction of a larger contribution from Captain Duncan's pay." There 1s no equivalent or similar disadvantage, in my opinion, by a

"decision" that an admitted overpayment {as here) was

recoverable. See also per Lockhart J. in Hamblin v. Duffy (1980-81) 3 ALD 153 (Hamblin) at p. 158 though dealing with an

appeal under the Administrative Decisions (Judicial Review) Act

1977. See also the references to the "ripeness doctrine"

Administrative Law Bernard Schwartz 1976 p. 515 et seq.

There has been reference by respondent's senior counsel un argument to the raising of an overpayment or making a debit entry of $3,623.70 in the Departmental records in_ the respondent's account. Would a "decision" so to do - if there were one and it had been the subject of review - be a relevant decision? Speaking only for myself, the notion that someone should consider he should make a book entry, without more, could be aptly described as a "decision" which is then subject to

review, is unconvincing. No doubt in one sense every bookkeeper

makes a "decision" before he enters a figure in a ledger or journal. The relevant entry here would have no self operating function or long term results as did the declaration of a deduction rate in respect of Captain Duncan's pension. Again, any action which might be taken by the Director-General in the future, iuncluding by relying on s.140(2), would not be because of or in consequence of a book entry but because of an overpayment. I do not intend to enter into any discussion as to whether any later determination to deduct would be a relevant decision, a

No doubt there are book entries in records of all pensioners showing debits or credits and enabling the state of the account to be ascertained readily. Book entries, although in a different context, have been accorded a limited function, 1.e. otherwise than as a record. In Manzi v. Smith (1975) 132 C.L.R.

671 a declaration had been sought that a payment made to a

shareholder shortly before liquidation was void as against the liquidators of a company and that certain other shareholders were indebted to the company in specified amounts. The material produced by the liquidators consisted of entries in the company's accounts. There was no evidence that the shareholders had knowledge of or had adopted the entries. Barwick C.J., with whom

Mason J. agreed, said at p.674, referring to decided cases -

"These decisions, quite clearly, are not authority for the proposition for which they were advanced, namely, that a payment of money was made by the making by the company of a journal entry in the books of account without reference to, or without the agreement of, the persons said to be the recipients of the money. The company's assertions in its books of account did not establish the indebtedness of the appellants or any payment of money in discharge of that indebtedness."

"The entries made through the journal and the books of the company did nothing except aiter

the manner in which the internal accounts of the company were expressed."

In Brookton Co-operative Society Limited v. Federal Commissioner of Taxation 81 ATC 4,346, one of the questions was whether the declaration of an interim dividend created a debt by the company to the shareholders. In the company's records the

There was an appropriate journal entry in the company's books; the amount of the dividend was reflected in the company's

Mason J., with whom on the point Gibbs C.J., Murphy and Aickin JJ. agreed, said at p.4,354 -

If the respondent were ever sued, or suffered a deduction pursuant to s.140(2), it would not be in consequence of a book entry, but because there had been an "illegal" overpayment, or if there 1s a difference, one recoverable in

reliance on s.140(1) or pursuant to the principles in Auckland

Harbour Board v. The King (1924) A.C. 318; and, 1f s.140(2) were

It would, anyway, as a matter of common sense, be clear that the Director-General would keep and be obliged to keep detailed financial records of payments due and made _ to pensioners; and moneys due from pensioners. Legislative

background relating to control of public money starts with the

Commonwealth of Australia Constitution Act s.83, the Act and the

Audit Act. By s.7 of the Act, the Director-General of Social Security has the general administration of that Act. Pensioners are to be paid in such manner as the Director-General determines.

The Audit Act s.60 provides that a separate account to be called the Trust Fund shall be kept of all moneys placed to the credit of that fund under such separate heads as may be directed by the Minister. Presumably the reference is to the

Section 61 of the Audit Act provides that it shall not be lawful for the Minister to expend any moneys standing to the credit of the Trust Fund except for the purposes of such fund or

Pursuant to s.62A of the Audit Act, the Minister may establish Trust Accounts and define the purposes for which they are established; and all moneys standing to the credit of an account which 1s a Trust Account established or continued by s.62A or established under any other Act as a Trust Account within the meaning of the section, shall be deemed to be moneys standing to the credit of the Trust Fund. Sub-ss. 5 and 6 of s.62A provides that moneys to be paid to the credit of the Trust Account to which they relate include moneys appropriated by law for the purposes of any Trust Account; and that moneys standing

to the credit of the Trust Account may be expended for the

By the National Welfare Fund Act 1943 ("the National welfare Fund Act") s.4, there 1s established a Trust Fund from which payment of pensions may be made - s.6. The Trust Account known as the National Welfare Fund is a Trust Account for the purposes of s.62A of the Audit Act. In Notes at the end of the

National Welfare Fund Act, which can be found in "Acts of the

Parliament 1901-1973" Vol. 8 p. 202, it is stated that payments may be made out of the National Welfare Fund under provisions including the Social Services Act 1947 ("the Social Services

In s.2, the Audit Act provides for accounting officers. These are persons who are charged with the duty of collecting, receiving or accounting for public moneys. "Public moneys" means revenue, loan, trust and other moneys received or held by any

person for or on behalf of the Commonwealth or prescribed authority, and includes all moneys forming part of the

Consolidated Revenue Fund , the Loan Fund or the Trust Fund.

By s.16 accounting officers shall, subject to the provisions of the Act and the regulations, 'inter alia, keep such records as are prescribed by the Act or regulations or as the Minister may direct. And cf. the Finance Manual containing

directions issued pursuant to Finance Regulations 127A including

"In the case of an overpayment of periodical amounts paid by the Departments a notation shall be made on the appropriate personal record to ensure, as far as possible, future recovery of the amount owing. (This Direction does not apply to such classes of overpayments that are, as a matter of policy, determined as not to be recovered.) "

though on a sheet bearing as part of the heading "Section 24",

In my view, what was before the AAT included the views of Mr. Jackson, Regional Manager, to which later I refer, in which there was an expression that an overpayment of $3,632.70 so

determined by calculation was "recoverable" as a debt; which 1s

not the same as "shall be recovered" (cf. Matteo (supra) and

Hangan (mentioned below). The first matter, the fact of overpayment, was not, and is not, now challenged. The second

statement ("recoverable"), 1£ it is a comment on the legal Situation, itself did not impose a liability to pay or create a right to recover or even indicate an intention to recover; cf. Hamblin at p.159. Such a liability or right either does or does not exist as a matter of law independently and unaffected by any expression of opinion, and as a matter of deduction from the facts of the particular case interpreted in the light of common law principles; or by s.140 if it adds to or quaiifies those principles. Opinions as to recoverability, the Director-General has expressed have nc legal consequences l.e. as to

recoverability simpliciter, no finality and no effect on the

respondent. Such opinions are not "making a declaration demand or requirement" - cf. s.3(3) supra. It is of no assistance to speculate what, pursuant to s.140(2), the Director-General, in his discretion, might determine in the future - cf. Pfeiffer v.

Director General of Social Services, unreported 4 December 1981. The formation of an opinion per se 1s not in these circumstances a decision within the meaning of relevant legislation cf. Riordan v. Parole Board of the Australian Capital Territory (1981) 3 ALD 144. Il note that in Matteo, there was, under review, a "decision" that an overpayment be raised and that recovery thereof be "instigated". It was really a "decision" that recovery should be pursued that was reviewed (see pp.7 and 9). The raising of a debit entry, whether enjoined by specific legislation or not, would be part of ordinary practice in any entity dealing with accounts of public money; it would "....do nothing but alter the manner in which the internal accounts of the (Department) were expressed." See per Jacobs J. (supra). It does not imply nor does it invariably (or""inexorably") follow that a recovery will be "instigated". Such a recording could not be said to be or be part of a decision to which s.15A of the Act

The so-called "decision" does not acquire that quality even though it was so treated by the Director-General or the Social Security Appeals Tribunal or the Administrative Appeals

Tribunal; their views do not give jurisdiction beyond what is

After argument had concluded and the matter reserved,

and on 17 December 1982, the decision in Director-General of

Social Services and Kathleen Beverley Hangan (Hangan) was

published (unreported), to which reference may be made. The provision of the application to the Administrative Appeals Tribunal for review considered in that case was in a (earlier)

form slightly different to s.15A. See Administrative Appeals

Tribunal (Social Services Act) Regulations. The difference in

wording does not appear to me to be significant. The reasons for judgment of Fox J. include that the Director-General had made an "authorative decision as to recoverability itself in the nature of a demand", that the Director-General had made a "decision" to affirm or vary the decision or determination of the officer of his department that had been reviewed by a Social Security Appeals Tribunal. It was a decision that endowment paid was not payable "....that it was recoverable and should be recovered" that hence the endowee was entitled to seek review of the

Director-General's decision. His Honour also said -

"The fact is that action to recover, or even to demand, is not an inevitable consequence of an administrative assessment that there is liability."

"In my view there was a decision by the Director-General made after the Administrative Appeals Tribunal (Soczal Services Act) Regulations came into operation, a decision made under s.15 of the Social Services Act and a Gecision that affirmed a determination, direction, decision or approval of an officer

that had been reviewed by a social security Appeals Tribunal, and did so otherwise than in accordance with the decision of that tribunal. It was a decision that endowment that had been

paid was not payable, that 1t had been paid in consequence of a failure or omission to comply

with s.lO4A, that 1t would not otherwise have been paid, that it was recoverable and that it should be recovered."

"In my opinion, although the recoverability of overpaid endowment under sub-s.140(1) depends on whether or not the specified circumstances in fact exist, the Director-General's determination that they do exist and that an amount is recoverable is an administrative pre-requisite to any duty to recover that amount. Given such a duty, the Director's determination that an amount is recoverable will inexorably lead to a decision to recover as part of the administrative process leading to recovery; /..."

"The ultimate determination that there were recoverable overpayments led to a demand for repayment. There is no doubt, in my view, that that demand for repayment was a "decision" which may be reviewed:"

"Accordingly, I am of opinion that....the Administrative Appeals Tribunal did have jurisdiction to review the decision

In my opinion the facts in and their evaluation in the "decision" made by the officer in Hangan and later by the AAT, were significantly different from the "decision" made by the officer in the instant case; so different that the Hangan

decision is, I suggest, of little guidance to the court in

evaluating or categorising as a "decision" or otherwise the action here of the Director-General or delegates or officers in

Though not specifically argued before us in the detailed sense I shall mention below, 1t could be contended that the Director-General did make a "decision" within the meaning of

s.15A, not one intrinsic to the raising of a debit entry or that

a sum was recoverable; but rather one which could be described as "....affirming....a determination direction decision or approval of an officer..." being one that had "been reviewed by a Social Securities Appeal Tribunal". The sequence of events can

(i) A recommendation (which in terms of the notional argument would have to _ be

described as....determination direction decision or approval of an offaicer....")

memo dated 2/10/79 (s.37 documents p.36 et seq.) that -

(ii) An appeal (s.15) by respondent conveyed by letter dated about 29 April 1980.

(ii2) A review approximately in May 1980 by a Social Security Appeals Tribunal of the

determination etc. The result of their deliberations was - that the "appeal" should be partly upheld - i1n_ that

beyond 29 May 1978. See memo dated 28 January 1981 (45).

(iv) The "decision" (as for the purpose of the argument it would be described) by a

about February or March 1961 (51) in that the debit of $3632.70 be confirmed and notwithstanding the view of the Tribunal which favoured respondent.

(v) The application to the Administrative Appeals Tribunal for review of that

"decision" by a delegate of the Director-General made pursuant to s.15A,

That the Director-General by the actions of a delegate, Mr. Wyrell (see letter to respondent dated 2 April 1981 p.52)

eventually raised the amount i1n question from $3564.30 to

$3632.70 seems to me to be irrelevant to a consideration of the steps which must be fulfilled to provide an appeal; it is the so called "decision" made by a delegate of the Director-General in respect of the action of an officer which, after review by the Social Security Appeals Tribunal, may be the subject of an application to the AAT for review; but it is not the action of the officer which is the subject of an application to the Administrative Appeals Tribunal. So in the sense mentioned, the action of the Director-General may be argued to be a "decision"

and one perhaps to be described as a "decision affirming". Yet still, in terms of s.15A, what the officer, Mr. Jackson, did and what the Director-General affirmed, would have to amount to a "decision". I do not consider it did so amount. But so I may examine further submissions I proceed to treat the Director-General's action as a "decision" within the meaning of

s.15A of the Act and s.25 of the Administrative Appeals Tribunal Act 1975.

I will, therefore, refer to other arguments advanced on behalf of the respondent. There has been discussion as to the umport of s.140 of the Act. First, I note, however, that she was advised that she should notify any wage increase; twice she did so, as required by s.74 of the Act - cf. s.45. Each time, following her notification, there was an adjustment to her pension. The Director-General was not required to remind her of the dictates of s.74, any ignorance on her part would be no excuse for her failure. The AAT found that there was a failure by her to notify which was a cause of the overpayment; er its decision was to that effect. This finding has not and, I suggest, could not be questioned. In my opinion, the relevant

and correct version of the situation in terms of s.140 is that -

"In consequence of an omission to comply with s.74 of the Act an amount has been paid by way of pension which would not have been paid but

I suggested during argument that the "omission" referred to could have been one by persons other than the pensioner, ancluding officers of the relevant Department. However, no

argument has been addressed to this and I need not deal with it

There 1s no basis for reading into the section any amplication that if there is more than one cause there should then be determined which of several or more causes 1s "dominant";

or that any failure by the Director-General could be said to be

"dominant" or even relevant. The word "failure" in the Tribunal's Reasons for Decision is, I suggest, synonymous with

There was neither obligation nor continued practice by the Director-General of notification by him or representation by him that there would be any notification. The respondent applicant's omission, as 1t happens, in my opinion on the evidence was the only cause of the total amount of this overpayment. If I am wrong as to this then in my view the omission was at least an effective and contributing cause of the

I am aware and regret that this view of the unapplicability of considerations such as "dominant" or "effective" cause 1s at variance with earlier decisions of the Administrative Appeals Tribunal - see e.g. Matteo, Gee, Buhagiar and Forbes. But this view 1s not merely my own; it accords with the views of the members of the court in Hangan. There have been, further, submissions as to the meaning in s.140 of phrases "in consequence of" and "but for". Whether causality or a sequence of events or both 1s implied is, I agree, to be discerned from the context in which they are used. The use of the two phrases, 1n my view, strengthens the argument that there is an intendment of a relationship of causality. This, I

suggest, recelves support from authority, though dealing with

another section and statute - see per Gibbs J., as he then was, in Reseck v. Federal Commissioner of Taxation (1975) 133 C.L.R.

45 at p.5l. Jacobs J. did not agree that the words in consequence of" in the section there being considered imported a

concept of dominant cause; he said a consequence in this context

is not the same as a result. It does not import causation but rather a "following on". The section there being considered did not include the phrase "but for". Denning L.J., as he then was,

said in Cork v. Kirby Maclean Ltd. (1952) 2 All E.R. 402 at p.407

"Subject to the question of remoteness, causation 1s, I think, a question of fact. If you can say that the damage would not have happened but for a particular fault, then that fault 1s in fact a cause of the damage; but 1£ you can say that the damage would have happened just the same, fault or no fault, then the fault is not a cause of the damage.

It often happens that each of the parties at fault can truly say to the other: "But for

such a case both faults are in fact causes of the damage."

With respect, I have not found this exposition entirely satisfactory; 1t does not tell us whether the second fault had any quality of contributing to or effecting damage. However, I

do not consider these words inconsistent with those of Dixon J.,

as he then was, 12n Lindeman Limited v. Colvin (1946) 74 C.L.R.

313 at p.320. As to the "but for" test, see generally Clerk and

Lindsell on Torts 14th ed. para.308; Fleming, The Law of Tort

5th ed. p.180; Chitty on Contracts, 24th ed. para.1564-7 - see

note 96 at p.734; "Causation 1n the Law" Cambridge Law Journal

1961, 62 at p.63 et seq; Hart and Honore Causation in the Law

1959 Chap.V. In McIntosh v. Federal Commissioner of Taxation 25

ALR 557 the question was whether an amount was paid in consequence of retirement" within the meaning of the Income Tax Assessment Act 1936 s.26(d). Brennan J. said at p.560 the phrase requires that the retirement "be the occasion of, and a condition of, entitlement to the payment." Toohey J. thought that "in consequence of" referred to a connection not simply temporal; "retirement was a prerequisite to payment". See p.564. Lockhart J., referring to that phrase said at p. 571 -

the payment can be said to be a "following on" of the retirement."

See also Braby; Preston v. Norfolk County Council (1947) 1 K.B.

775 at p.785; Christies Stone Quarries Pty. Ltd. v_ Corporation of the City of Tea Tree Gully (1979) 22 S.A.S.R. 224.

Though dictionaries, even legal dictionaries are not, I realise, "authoritative exponents", cf. The Queen v_ Peters (1885-86) XV1 Q.B.D. 636 at p.640, I note the reference to "in

consequence of" in Ballentine's Law Dictionary" 3rd ed. p.602 and

to a sequence of events in the definition of "consequence" in

The version of the situation which I have attempted to express in words earlier will be valid whether causality or

sequence only 1s to be found to attract the operation of s.140.

And if ome could decide that an omission was a cause of overpayment, such an omission 1S within the ambit, at least, of the expression "in consequence of". The words of Lockhart J. lastly quoted seem to me to support this view. Thus, as i have

said, the omission by the respondent, was the only and the

The decision of the Tribunal included the exercise of a discretion thought to reside in the Director-General. If there was such a discretion, then, as expressed by the Tribunal assuming it was entitled to attempt to exercise it, 1t was not, so far as appears from the Reasons for Decision, properly exercised. The exercise of discretion in the respondent's failure was plainly influenced by its view that the failure of the Department to perform its function was the substantial or dominating cause of the overpayment; and the respondent's failure was a "contributory", not an "effective" cause. This view should not have operated at all in the formation of any decision exercising a discretion: firstly because there was no such function and therefore no failure; and secondly because, on the uncontested facts, the respondent's failure must be regarded as "effective" and not merely "contributory". Further, a4 relevant matter does not seem tc have been considered 1.e. that this was an illegél overpayment, of public money, tc cone who

apparently knew of her duty to advise of the increases of salary

and head already been remindecd cf this twice in the past.

Moreover, 1f there were thought to be matters of hardship making

the immediate payment of portion of the overpayment unacceptable, 1.e. so far as the AAT decision does sc, one might have expected that the discretion would have been so exercised as not to preclude forever and in all circumstances recovery which might in the future be well within the financial competence of the respondent. I should add that if there was a discretion in the Director-General not to seek recovery, and 1t 1s possible to iumagine circumstances where as a matter of commercial common sense he would wish to refrain at least for some time from so doing, i doubt very much if there was a discretion of the kind referred to by Counsel in argument before us or as propounded in

Argument has also been addressed to us as to whether the decision (whatever 1t was) was made "under this Act" 1.e. s.15 of the Act. The "decision", 1f 1t was one, was in respect of moneys thought, at least, to have been illegally paid. The reasoning in

The Australian National University ve. Arthur Lee Burns, unreported 8 October 1962, (A.C.1. G1& of 1982) at pp.22, 23,

assists me to the view that here there was a discovery of money overpaid (and thus in one sense not paid under any Act). Any payer in such circumstances and in the ordinary course managing his enterprise would want to at least record it or to ask that it be repaid. What appears to me to be the reascning in the case last cited, assists to the conclusion that any "decision" was merely part of action taken by public servents to keep track of

public moneys or prctect the revenue anc not specifically

referable to or intrinsically bound up with the administration of the Act 1.6. that any "decision" by the officers or delegates was not one "under this Act". But s.15A does not qualify or limit

the decisions to which it refers by the phrase "under this Act".

The order which this court should make has caused me

concern. I have had the benefit of seeing the reasons prepared

by Sheppard J. I note that the Administrative Appeals Tribunal

Act 1975 s.44(1), referring to appeals to this court from

(4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.

(5)} Without limiting by implication the generality of sub-section (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, e1ther with or without the

hearing of further evidence, by the Tribunal un accordence with the directions of the Court."

My overall views are, 1 suggest, sufficiently inaicated in what I have written; and I have been inclined tc confirm as being an "appropriate" order what was stated in the s.37 documents as to recoverability. (See p.5 of these Reasons). But, finally, I have come to the conclusion that it will be sufficient

to set aside the decision of the AAI. [It would not appear to be

a correct or even practical epproach to attempt to set asice the

decision of the AAT in part - 1.e. to confirm the decision so far

as one considers it correct; and to set aside that part

thought to demonstrate error. There was one decision.

2. The gecision of the Administrative Appeals Tribunal be set aside.

I vert} chac this and the ferry - qrarte preecding pages are a true copy of the Rea.oas for Judgrant herein of his honour Mr. J stce ieGregor,

IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) NO. VG 66 OF 1982

LGCKHART J. Mrs. Hales is 4& single mcther. Her daughter 1s seventeen years of age and an epileptic. Mrs. Hales was entitled to a supporting mother's pension, but was tola by the Lepartment of Social Security ("the Department") on 22 June 1976 that she was no longer entitled to the pensicn because of the amount of

her salary as an employee of the Postmaster-General's Lepartment.

Nearly two years later, on 25 Merch 196b, the Department wrote to Mrs. Hales, informed her that she had been overpaic and askea her to refund $3,564.35. She appealed to @ fcc1el Security

Appeals 'ribunal, a becy established py directicn of the

Minister to assist the Director-General in the administration of

the Sociral Services Act 1947 ("the Social Services Act"). It 1s mentioned in various sections of the Social Services Act but is not constituted by it. The Tribunal recommendea that the apreal be partially upheld and a small reduction made in the emount claimea by the Lepartment. The Tribunal's recommendation was not accepted by the Lelegate of the Director-General. The Department wrote to Mrs. Hales on 2 April 1981, informed her that, as a result of the Delegate's decision, the overpayment of her supporting mother's benefit had been recalculated at $3,632.76 for the period 3 December 1974 to 25 May 1978 and that, 1£f£ she was Gissatisfied with the Lelegate's decision, she may be entitled to apply to the Administrative Appeals Tribunal for a

Mrs. Hales then appealed to the Administrative Appeals Tribunal. That Tribunal accepted the evidence of Mrs. Hales that she believed during the whole of the relevant perioa that she remained entitled to the benefit which she had been receiving since 1973 and that she expected the Lepartment tc send her forms yearly which would require her to state her current income. The Tribunal held that the Department failed to perform its functions in certain respects and that its fallure was the "substantial cr dominating" cause of the overpayment. the Tribunal also found in favour cf Mrs. Hales on @ sé@éparate ground namely, that to seek recovery of the overpayment would cause extreme haraship to her

and her daughter and that there weulae be scant chance of

effectively recovering the money. The Tribunal decided that Mrs.

Hales should refund overpayments attributable to the first

pension year after the review in 1974, but not thereafter.

The Director-General appealed from that decision to this

Court pursuant to s. 44 of the Administrative Appeals Tribunal

Act 1975 ("the Administrative Appeals Tribunal Act").

It was agreed before this Court by both parties that Mrs. Hales' pension was overpaid during the period 3 December 1974 to 25 May 15/8 an the sum of $5,632.76. Counsel for the Director-General stated that there was no suggestion thet Mrs. Hales had in any way misled the Department by making any false statement or representation and that statements made by her on

The first submissicn by counsel for the Lirector-General was that the Administrative Appeals Tribunal did not heve jurisdiction on the ground that there was no "Gecision"" cof the

Director-General which could be the subject of an appeal to it.

When the Director-Generél has, pursuant to s.14 cr s.15, mede a decision affirming or varying a decisicn or approval of one of his officers that has been reviewed by a Locial Security Appeals Tribunal, an appeal lies to the Administrative Appeals

• • • Des Gearing i «ct, a ccfinition cescribea in Chaney's Case by Leane J. with whose reasons for jJuagment Fisher

"Section 3(3) cf the Act Gefines @ reference in the Act to a 'dGecision' as including a reference to a litany of activities of both a positive and negative nature culminating in

thing'. The provisicns of s.3(3) would seem more apposite to define a reference to the substantive 'decision' of the original

decision maker than to confine the scope of a reference to 4 'decision' of the Tribunal upon review. Subject to that qualification, the specific activities mentioned in the Gefinition in s.3(3), which are in the nature of effective action rather than intermediate 'Gecision' cn the path to such action, provide scme indication that a reference tc 'decision' i1n the Act 1s, prima facie, a reference to the ultimate or operative determination rather than a reference to an adjudication or determination of issues arising in the course of making such an ultimate or operative determination. The indication which s.3(3) provides to that effect 1s, however, slight."

The Administrative Appeals Tribunal has jurisdacticn tc review decisions made in the exercise of the powers conferred by

particular statutes not by the Administrative Appeals MZribunal

Act itself. 'hose statutes are many ana diverse. They anclude

the Social Services Act 1947, the Migration Act 1955, the

Compensation (Commonwealth Covernment Employees) Act 1971, the Repatriation Act 1920, the Customs Act 1901, and the Insurance

Act 1973. Each or the statutes conferring jurisdiction on the

Administrative Appeals Tribunal covers a wide range cf decisicns.

"Whenever 1t appears to the CEirector-General that sufficient reason exists for reviewing a determination, direction, decision or approval of an officer under this Act (including a determination, direction, decision or approval of the Director-General), the Director-General May review the determination, Girection, decision or approval and may affirm, vary or annul it."

"AR person affectea by a determination, direction, decision or approval of an officer under this Act (except é determination, direction, decision or approval of the Director-General) may, within such time (1f any) as is prescribed, appeal to the Director-General and the Director-General mey affirm, vary or annul the determination, direction, decisicn or approval."

I am in some doubt whether the relevant decision in this

case falls within either s. 14 cr s. 15, but 1 think that the appeal should be decided on the basis that it does, especially as no submission was meade to the contrary Ey the Lirector-General and the sections should not be construea too strictly or

"Decisicn" 1s @ word of indefinite and wide meaning. it

was aescribed by Deane J. in Lirector-Ceneral cf social Services

v. Chaney (19&C) 31 A.L.K. £71 as @ wore cE indeterminate meaning {at p. 590). I describeG it &@s 4 word of acristic meaning in

tercen v. Parcle [oarad cf the A.C.T. (1921) 34 A.L.R. 322 (at p.

The definition of "decision" in sub-s.3(3) seeks to embrace them all by its ambulatory character. One cannot

therefore look to the definition in sub-s.3(3) tc determine

definitively the meaning of the word "decision". lt must take its colour and content from the enactment which 1s the source of the decision itself. NO narrow or pécantic approach is called for in determining whether a decision falls within the scope cf review by the Administrative Appeals Tribunal. The multiplicity cf statutes which continue to grow and to confer jurisdiction on the Administrative Appeals Tribunal, and the manifold and diverse circumstances which attract the power of the decision maker, all call for a laberal approach to the definition of the word

"decision", although 1t 1s important to bear in mind the warning

of the late Professor de Smith in his work Judicial Review of

"Judicial review of administrative action 15 inevitably sporadic and peripheral. The administrative process 1s not, and cannct be, a successicn of justiciable controversies. Public authorities are set up to govern and administer, and if their every act or decisicn were to be reviewable on unrestrictec grounds by an independent judicial body the business c& administration coulc be brought to a stancstill. The prospect of judicial relief cannot be held out to every person whose interests may be acversely affectec by a@ministrative action."

It 1S necessary tc examine the act which conifers Jurisdiction on the Acministrétive Appeals Tribunal ane tre

administrative framework in whicr 1t cCperates to aetermine

whether there 1S a "decision" susceptible of review under the Administrative Appeals Tribunal Act. A pronouncement which alters rights or imposes liabilities is readily classified as a "decision", but the word has a wider scope. 1t may include a Geclaration or statement which has a real practical effect

although not altering rights or imposing liabilities: Duncan v.

Defence Force Retirement and Death Benefits Authority anc Commonwealth of Australia 3 A.L.L. 113 (at p. 117).

A vexing problem in the present case has been to identify the relevant decision said to have been made anda to be reviewable by the Administrative Appeals Tribunal. It received various descriptions in the course of the litigation. Its clearest formulation is that it 1s a decision that a benefit which had been paid to Mrs. Hales was not payable, that it haa been paid in consequence of her failure or omissicn to notify changes in her income, that it would not otherwise have been

paid, that 1t may be recovered and that 1t shoulda be recovered.

It was submittea Ey ccunsel for the Lirector-General that the decision did not affect in any way the rights, obligations or interests of Mrs. Hales, that 1t hed no ultiméete or operative effect and that there woule be ne such effect until

the Court menticned in suk-s.l4U(1) of the Social Services Act

decided that the overpayment 1n questicn waS a aebt due to the

Crown. The decision would then be that cf the Court, nct that cf

the Lirector-General. Reccverability springs rrom the existence

of the circumstances set out ain sub-s.140(1) which is a self-operating provision. Further, so the argument proceeded, s. 70C of the Audit Act 1901 sgives the pcwer to the relevant Minister to waive payment of moneys due to the Crown, so that the Directcr-General had no power to decide to sue Mrs. Hales once he concluded that the ingredients of sub-s.14U0(1) existed and could be established in the appropriate court. Recoverability cannot depend upon a decision of the Director-General. A legal right 1s created by sub-s.140(1) which can be waived only by the Minister under s.70C. Therefore there is no relevant decision that can be made by the Director-General in this case. So runs the argument

I @o not find it necessary to decide the content and operation of the power conferred by s.70C and its relevance to this case. 1 am content to assume that the recoverability of an overpayment as a debt due to the Commonwealth does not depend upon @ decision of the Director-General and that he cannot waive such a debt. But I fail to see how action fer recovery of an overpayment can be taken otherwise than following a aecision of the Director-General or his Delegate tc recover it. Certain aaministrétive precesses must preceae any action for reccvery in a court pursuant to suk-s.140(1). Some officer in the Lepertment must form an Opinion that there has been a failure cr omission to comply with a provision of the Social Services Act or that there has been a false statement or representaticn, and tnat & benefit

has been paid in consequence of that failure cr cmission or false

statement or representation that would not otherwise have been

paid. Some officer must decide that the overpayment 1s recoverable and should be recovered. The range of matters relevant for consideration by the Department 1s wide. The

relevant officer may form the view that the Department's case 1s strong or weak. He may consider that, whatever the strength of the Department's case, litigation will be futile and a waste of public funds because the prospective Gefendant 1s penniless. These are the practical considerations which confront any potential litigant. He generally balances the strength of his case and that of his opponent and decides whether, at the end of the day, it is worthwhile risking his money in costs. The Department 1s in no different position. hot only will the appropriate officer in the Department form views as to the Department's prospects of success in a proceeding to recover an overpayment under sub-s.140(1,) but he may, and often will, also

consider the financial circumstances of the prospective defendant. If he ascertains that the overpayment has been made

to a widow in indigent circumstances who is doing her best to support an invalid daughter, 1s 1t seriously to be suggested that these are irrelevant considerations in the process of departmental decision making leading to an action for recovery of the overpayment? One might be forgiven for thinking that an action for recovery in these circumstences where there 1s no prospect whatever of recovering anything, irrespective of the strength of the Lepartment's céese cn the technical issues, woule

be a waste of public funds and perharps an abuse of power. 1

reject the argument that the Director-General has no option but

to sue once he concludes that the ingredients required by

I also reject the argument that a decision not to sue is not a relevant "decision" for present purposes The decision of the Director-General to recover the overpayment from Mrs. Hales, although not directly affecting ner legal rights and obligations, plainly has a real practical effect on her. She becomes liable to be sued, she 1s required to defend or not defend the proceedings when commenced, to instruct solicitors and so on. For practical purposes the Director-General's decision sets in train a series of events which affect Mrs. Hales and her

One important consideration bearing on the question whether the Directof-General's decision in this case 1s reviewable under the Administrative Appeals Tribunal Act is that the making of the decision results from the exercise of a wide discretion of the Director-General. This discretion may encompass a multiplicity of circumstances including Mrs. Hales'

financial circumstances. But once the decision to recover is made and proceedings commenced in the eppropriate court there 1s no room for the exercise of a discretion by the court. The court decides the issues tendered by sub-s.140(1) and then enters judgment. Mrs. Hales' capacity to refuna the overpayment 1s an

irrelevant consideration in the determination of those issues.

C£ course, her financial position may be relevant to the question of a stay of execution on the judgment, but that is a different question from that presently under consideration. Within the ambit of the Director-General's discretion in deciding whether to recover the overpayment lies the capacity to decide against recovery in view of her inability to repay and her circumstances generally, and a capacity to decide to recover only portion of the amount said to be due. I cannot accept that a decision in these circumstances does not relevantly affect Mrs. Hales and afford her a right to have it reviewed. Nor 1s it in any sense

an interim decision in the sense mentioned by Deane J. in

My view that Mrs. Hales was entitled to seek a review of the Darector-General's decision by the Administrative Appeals Tribunal is supported by the judgment of a Full Court of this Court constituted by Fox, Toohey and Fitzgerale Jd. in Director-General of Social Services v. Hangan (17 December 1982).

I do not propose to set out the facts or to analyse the reasons

for judgment of the members of the Court. The questions in 1ssue were very close to those which arise in the present case. Although each of their Honours gave separate judgments their views were substantially the same on questions relevant to the present case. I agree generally with those judgments. lhe only

relevant distinction between Hangan's Case ana the present case 1s that in the former the appeal to the Adwinistrative Appeals

Tribunal arose from Statutory Reles 1986, No.62 0 - the

Administrative Appeals Tribunal (Social Services Act) Kkegulations

which came into operation on 1 April 1980. Those Kegulations amended the schedule to the Administrative Appeals Trabunal Act by inserting Part XXIVA so that where the Director-General had pursuant to s.14 or s.15 of the Social Services Act, affirmed, varied or annulled a determination, direction, decision or approval of an officer that had been reviewed by a Social Security Appeals Tribunal and had so affirmed, varied or annulled that determination, direction, decision or approval otherwise than ain accordance with the decision of that Tribunal, application could be made to the Administrative Appeals Tribunal for a review of the Director-General's Gecision. when the relevant decision was made in the present case those provisions had ceased to be in force and s. 15A had been inserted. Indeed, in the meantime, Part XXIVA had been amended by the substituticn of a new Part XXIVA by Statutory Rules 198C, No.335. Part XXIVA was omitted from the Schedule to the Administrative Appeals Tribunal Act by s.4 cf the Statute Law Revision Act 1981 (ho.61 of 1961) and s.15A was introduced by s.90 of that Act. I do not regard these differences to the Administrative Appeals Tribunal

The next submission of counsel for the Lirector-General assumed that there was Jurisdiction in the Administrative Appeals Tribunal to review the Director-Generezl's decision, but attacked

The AcGministrative Appeals Tribunal sald that sub-s.140(1)} requires that the failure or omission be the effective, and not merely a contributory, cause of the

overpayment. The Tribunal applied an earlier decision of the

Trabunal in Matteo v. Darector-General of Social Services (1&

December 1981). The Tribunal found on the facts that the effective, substantial or dominating cause of the overpayment to Mrs. Hales was the failure of the Department to perform its functions in certain respects including sending her forms every twelve months which would require her to state her current

In Hangan's Case the Full Court of this Court held that on the proper construction of sub-s.140(1) it 1s not necessary that the failure or omission menticned therein be the effective cause of the overpayment, that it 1s sufficient that the failure or omission be a contributory cause, that the relevant payment was made as a consequence of the failure or omission by the pensioner to comply with his obligations under s.l04A of the Social Services Act and that the payments would not have Leen

I agree substantially with what their Honours said con this question in Hangan's Case and see no useful purpose in setting out my cwn views. lt follcws that the Administrative Appeals Tribunal erred in construing suk-s.140(1) as it did and

that ut aGdressed itself te the wren¢g gunestion. The tribunal

should have asked itself whether any of the relevant payments Made to Mrs. Hales were made as a consequence of any failure or omission on her part to notify increases in her income and whether any of those payments would have been made had there not

The Administrative Appeals Tribunal went on to find in

favour of Mrs. Hales on an independent and alternative ground

The question now arises as to what this Court should do in the circumstances. Sub-section 44(4) of the Administrative Appeals Tribunal Act empowers the Court to hear and determine an appeal and te make such order as 1t thinks appropriate by reason ef its decision. Crders may include affirming cr setting aside the decision of the Tribunal and remitting the case to be heard and decided again by the Tribunal in accordance with the directions of the Court (sub-s.44(5) ). 1 agree with the views

expressed by Sheppard J. on s.44 in tinister for Immigration and Ethnic Affairs v. Gungor (1962) 42 4.L.R. ZU9 (at £.22U) where

"It 1s in my opinion, not correct to say that this court 1s by these provisions given wide powers to make such order as it thinks fit. Implicit in its powers are a number of

restrictions. The appeal 1s expressly limitea to error of law, which alleged error 1s the sole matter before this court and is the only subject matter of any order made consequent on the appeal. The order which this court can make after hearing the appeal is also similarly restricted to an order which 1s appropriate by reason of its decisicn."

Notwithstanding the Tribunal's error in its construction of sub-s.140(1) and the application of that interpretation to the facts, I am satisfied that the Tribunal's alternative finding of extreme hardship and scant chance of effective recovery was a proper exercise of its discretion in reviewing the Director-General's decision, that this finding stands independently of the erroneous finding and is sufficient to support the Tribunal's ultimate decision to set aside the Director-General's decision and to remit the matter to ham for reconsideration with the direction that only so much of the overpayment claimed by the Director-General as is referable to the first pension year after the review of Mrs. Hales' pension in 1974 be recovered from her. In these circumstances I see no necessity to remit the matter to the Tribunal to be heard and

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY ; No. VG 66 of 1982 GENERAL DIVISION )

Respondent CORAM: McGregor, Lockhart and Sheppard JJ. SHEPPARD J. Saw ey

This is an appeal pursuant to s.44 of the Administrative Appeals Tribunal Act 1975 ("the Administrative Appeals Act") from a decision of the administrative Appeals Tribunal ("the Tribunal") made on 23 April, 1982. The questions at issue arise because of a decision on the part of the applicant ("the Director-General") to seek to recover tne sum of $3,632.70 from the respondent for the alleged over~ayment of a supporting mother's benefit paic to her pursuant to s.d3A4C of tne Social Services &ct 1947 ("tne Act"). Because of a submission

made on behalf of the Director~General zoing to tne gurisdiction

of the Tribunal to hear the appeal brought to it by the respondent I use the word "decision" neutrally, and not necessarily in the sense of a decision which attracts the jurisdiction conferred on the Tribunal by the Administrative Appeals Act.

Before stating the matters which arise for decision I shall refer to the relevant legislation and to the facts of the matter. Section 83AAC of the Act provides for the circumstances in which a supporting parent is entitled to the relevant benefit. By s.83AAA a supporting parent may be either a supporting father or a supporting mother as therein defined. There is no question but that at all relevant times the respondent was a supporting mother, and thus a supporting parent for the purposes of these sections. Section 835AAE provides that the rate of a benefit payable under s.,83AAC 1s a rate equal to the rate of the pension that would be payable under Part IV to the supporting parent if the supporting parent were a Class A widow for the purposes of that Part. The rates are provided for in s.63(1) of the Act. Section 63(2) provides that the annual rate at which a pension 1s determined shall be reduced by one half of the amount (1f any) per annum cy which the rate of the income of the widow exceeds 51,040 per annum.

The responaent was zrantecd a supporting motner's benefit

to be payable to her eacn fortnight commencing on 3 July, 1973,

At the time of the grant of the benefit she was informed that the amount thereof was based upon her income and property (the Act subsequently underwent a change whereby the amount of property held by a person enjoying a benefit was not relevant in the calculation thereof) and informed that she was required to notify the Department of Social Security if she received income in excess of $72.25 per week in any period of two weeks. On 15 January, 1974, the respondent notified an increase in her earnings and asked that her benefit be adjusted. This was done. On 4 July, 1974, that 1s a year after the grant of the benefit, the respondent received a form which, when filled in, was to enatle the Department to calculate the correct rate of benefit to which the respondent was entitled. A questionnaire seeking similar information was sent to the respondent's then employer. On 17 September, 1974, the respondent was notified tnat there had been a further alteration in her entitlement.

On 10 May, 1978, nearly four years later, the respon- 'dent received a letter from the Department drawing her attention to an obligation imposed by tne Act (later to be referred to) whicn required her to notify tne Department if her average income exceeded 320 per week over any e2rght

week period or was nigner than tne income last notified.

The letter continued, "If your average income is in excess of this amount and there has been a change 1n your income since you last notified the Department, please complete the section below and return the form to the above address". The respondent completed the form. On 22 June she was informed that her supporting mother's benefit was no longer payable because of her income. There was not made in that letter any suggestion that the respondent would be required to make any refund to the Department. Almost two years later, on 28 March, 1980, the Department wrote to the respondent informing her that she had been overpaid and asking her to refund the sum of $3,564.30. The respondent appealed to a Social Security Appeals Tribunal. That Tribunal considered that the appeal should be partially upheld and a comparatively small reduction made in the amount which the Department had claimed. The Tribunal has no statutory existence but 1s a tribunal constituted by the Minister to make recommendations in matters involving disputes concerning the amounts of pensions and other benefits which are payable under the act. The Tribunal's recommendation was not accepted by the Director- General's delegate. On 2 April, 1981, the Department wrote a letter to the respondent saying that the Tribunal

had in effect confirmed the original overpayment claimed of

$3,564, 30. However, the letter said that as a result

of a"delegate's decision" the overpayment recoverable had been recalculated to the sum of $3, 632.70 for the period 3 December, 1974, to 25 May, 1978.

During the hearing before us it was agreed by both counsel that the benefit had been overpaid during the period 3 December, 1974, to 25 May, 1978, and that the amount of overpayment was correctly calculated at the sum of $3,632.70. Counsel for the Director-General also made it clear that there was no suggestion that the respondent had in any way misied the Department by making any false statement or representation. Statements made by her on the forms to which I have referred were entirely accurate.

The respondent then appealed to the Administrative Appeals Tribunal but before giving an account of the proceedings before that Tribunal I should refer to further legislation. I refer firstly to ss.73, 74 and 75 of the Act. These sections underwent amendment in 1976 because of the decision made by Parliament to make income alone the criterion to be met by applicants for pensions and other benefits payable under the Act, The amendments

were effected by tne Social Services Amendment Act (No.3)

1976, which came into force on 25 November, 1976. For

the same throughout the entirety of the relevant period

3 December, 1974 to 25 May, 1978. I do not propose, therefore, to refer to the legislation 1n its earlier form, particularly as it was agreed by counsel that it was unnecessary so to do. The provisions of ss.73, 74(1) and 75(1) as they have been since the 1976 amendment are:

"73, A pensioner shall, whenever so required by the Director-General, furnish to such officer, and within such time, as the Director-General specifies, a statement,in accordance with a form approved by the Director-General, relating to the income of the pensioner.

"74 (1) Where the average weekly rate of income, other than pension, received in any period of 8 con- secutive weeks by a pensioner who is not in receipt

of an allowance under section 65A is higher than $20 per week and is higher than the average weekly rate of the income last specified by her in a claim, state- ment or notification under this Part, the pensioner shall, within 14 days after the expiration of that period, notify a Director of the amount of the income received by her in that period."

"75.(1) If - (a) having regard to the income of a pensioner;

(b) by reason of the failure of a pensioner to comply with section 73 or 74; or

the Director-General considers that the pension which 1s being paid to a pensioner should be cancelled or suspended, or that tne rate of the pension wnich 1s being paid to a pensicner 1S greater or iess tnan 1t should be, tne Director-General may cancel or suspend the pension, or reduce or increase tne rate of the persion, accordingly."

The respondent was not in receipt of an allowance under s.65AA referred to in s.74(1). It is unnecessary

The remaining provision of the legislation to which it is necessary to refer is s.140. The relevant pro- visions of this section are to be found in sub-sections

(1), (2) and (3). These sub-sections are as follows:

"140 (1) Where, in consequence of a false state- ment or representation, or 1n consequence of a failure or omission to comply with any provision of the Act, an amount has been paid by way of pension, allowance, endowment or benefit which would not have been paid but for the false state- ment or representation, failure or omission, the amount so paid shall be recoverable in a court of competent jurisdiction from the person to whom, or on whose account, the amount was paid, or from the estate of that person, as a debt due to the Commonwealth.

(2) Notwithstanding anything contained in this Act (other than sub-section (3) of this section), where, for any reason, an amount has been paid by way of pension, allowance, endowment or benefit which should not have been paid, and the person to whom that amount was paid 1S receiving, or entitled to receive, a pension, allowance or benefit under this Act (other than a funeral benefit under Part IV A), that amount may, 1f the Director-General in his discretion so determines, be deducted from that pension, allowance or benefit.

(3) An amount referred to in sub-section (2) that has been paid otherwise than by way of family allowance under Part VI shall not be deducted from family allowance

Pursuant to the obligation cast upon nim by s.37 of the

Administrative Appeais Act, the Director-General loaged with

the Tribunal a statement setting out the findings on material questions of fact and other documents as required by the section. The statement set out the decision which the Director-General said had been made. That decision was stated to be as follows:

"THE DECISION of the delegate of the Director-General of Social Services was that

(a) the applicant had failed to notify the Department by 27 November 1974 of an increase in her income as required by sub- section 74(2) of the Act (as 1t was at that time);

(b) the applicant failed or omitted to notify the Department of subsequent increases in her income with the advice received from her on 29 May 1978;

(c) the applicant was paid supporting mother's and supporting parent's benefits from 3 December 1974 to 25 May 1978 amounting to $3632.70 wnich would (sic) have been paid

(d) the amount of $3632.70 was recoverable from the applicant as a debt due to the Commonwealth pursuant to sub-section 140(1) of the Act in consequence of her failure or omission to notify the Department of increases in her ancome."

It 1s difficult to see how any of the matters dealt with in the four paragraphs could be decisions in any real sense. They are more appropriately describea as findings. It may be, however, that one could properly say that the finding that the sum of $3,632.70 was recoverable as a debt aue to the Commonwealtr

in paragraph (c) was in reality a decision to recover that sum.

That 1s how both counsel approached the matter but counsel for the Director-General nevertheless contended that if

that were the decision, 1t was not a decision for the

purposes of the Addinistrative Appeals Act. That is a

There 1s other material which would suggest that in addition to there possibly being a decision to seek to recover the amount claimed as a debt due to the Commonwealth there was a decision to debit the amount to the respondent's account. Included amongst the papers which were before us was a recommendation dated 13 February, 1981, by an officer who described himself as, "Assistant Director (Appeals)".

His recommendation was, inter alia, that "a debit of $3632.70 be confirmed". His recommendation was concurred in by other officers and approved on 2 March, 1981, by an officer who was the delegate of the Director-General.

After the approval an officer wrote to the respondent informing her of what had been decided. The relevant parts of the letter are as follows:

As a result of tae delegate's decision tne overpayment

of supporting parent's cenefit has oeen re~calculated

at 33,032.7C for the cerioa frem 3 Decemoer 1974 to

25 May 1978. Arrangements will oe naae for you to caiscuss

with the Regionai Manager, Racnmond now you will repay the dept."

The respondent was informed that 1f she were dissatisfied with the decision, she "may be entitled to apply to the Administrative Appeals Tribunal for a review of the decision",

The Tribunal thought that the decision appealed against was a decision of a delegate to recover moneys overpaid to the respondent. The opening paragraph of its reasons for

" This 1S an application by Jeanette Shirley Hales (tthe applicant!) to review a decision of a delegate of the Director-General of Social Services ('the respondent') seeking to recover monies paid to the applicant for supporting mother's benefit in the sum of $3,632.70 pursuant to sub-section 140(1) of the Social Services Act 1947."

The Tribunal's conclusion was that only so much of the overpayment as was attributable "to the first pension year after the review in 1974" should be refunded. The Tribunal's formal decision, so far as it is relevant, was as follows:

" The Tribunal decides to set aside the decision under review and remits the matter to the Director- General of Social Services for reconsideration with the direction that only so much of the overpayment Claimed as is referable to the first pension year after the review of the applicant's pension in 1974 be recovered from the applicant."

At the hearing before the Tribunal the respondent gave evidence to the effect that she thought that the Department would send her forms yearly "so tnat I would f111 them in and

send them back to them", Sne said she believed during the

whole of the relevant period tnat she remained entitled to

the benefit which she had been receiving since 1975. In her cross-examination she repeated that she had expected the Department to send her forms which would require her to state her current income every twelve months, This evidence was accepted by the Tribunal.

"J accept that it was the applicant's genuine belief that the manner of review would be instituted by the Department. On these facts

the applicant was given to understand that there would be departmental review annually. In my view 1t 1s proper to regard the failure of the Department to perform its functions as the sub- stantial or dominating cause of the overpayment. The applicant's failure can best be regarded as

The Tribunal applied an earlier decision in Matteo v. Director-General of Social Services (18 December, 1981, as yet unreported) 1n which 1t was decided "that s.140(1), considered as a whole, requires that the failure or omission be the effective, and not merely a contributory, cause of the overpayment"; paragrapn 64, v0.26,

The Tribunal also founa in favour of tne respondent upon an independent and alternative ground. The Tricunal

exercise of a discretion against sutstartial recovery from this applicant. There would be, in my view, extreme hardsnip to tne apcrlicant ana to ner 16 yeer old invalid pensioner daughter. There would also be scant chance of action of recovering tne monies being effective."

The evidentiary basis for these conclusions is to be found in evidence given by the respondent at the hearing before the Tribunal. Her daughter is 16 years of age and an invalid because she is an epileptic. She is unable, apparently, to engage in employment and is in a sheltered workshop from which she receives $11 per week. She also receives an invalid pension. That pension is, of course, not in question in these proceedings. The respondent had recently been in hospital at the time she gave her evidence. Subject to absence from her employment because of her admission to hospital, she is employed by Telecom as a clerk. At the time of her evidence she was in receipt of a fortnightly salary of $461.98 gross. Her tax instalment deduction, union fees, superannuation, payments in discharge of a personal loan, her rent and her television hire amounted to $286.44 fortnightly. She was thus left with an amount of $87.77 per week for other living expenses including food. No doubt the daughter's pension and earnings at the workshop are pooled with her earnings for this purpose. She has $400 in an account with a credit union; otherwise, as I understand her evidence, she has no savings at all

When the respondent first received the Director- General's demand for repayment of the amount in question, she wrote a letter in which she said, amongst other things, that she would' like to suggest that if, after further examination of her files, it still appeared that her appeal would not be upheld, she be given the opportunity to pay any moneys owed to the Department aun instalments. She said that she was solely supporting her daughter who was then 14 years of age and was "finding it quite a struggle" surviving and keeping her daughter at school with the salary she earned.

She concluded her letter by saying, "If at all possible I would like to repay the amount outstanding in small

I should perhaps add that the letter was written well before the evidence which she gave to the Tribunal.

The date of it is not shown but receipt stamps placed upon it by the Department show that it was received in

"On all these facts it seems to me that the proper course is to direct that the applicant refund overpayments attributable to the first pension year after the review in 1974 but not subsequent years which should have been dis- closed to the respondent by the annual review which the applicant understood on good grounds, would be conducted."

The following submissions were made on behalf of the

The Director-General had made no decision to which the

Administrative Appeals Act applied with the consequence that the Tribunal had no jurisdiction to determine the appeal brought to it by the respondent.

It was wrong in law to make the Director-General's right

to debit the overpayment or seek to recover it dependent upon whether the respondent's omission to notify increases in her income was the effective cause of the overpayment having been made. The Tribunal's decision in this

respect disclosed that it had applied a wrong construction of s.140(1) of the Act.

The Director-General had no discretion not to debit the

account of the respondent or to seek to recover the amount of the overpayment from her. Accordingly, the Tribunal had no jurisdiction to substitute for the Director-General's decision a decision based on dis-

ought not, as a matter of law, to have been disturbed

Both the decision to debit the respondent's account

and to seek to recover the amount of the overpayment from her were decisions for the purposes of the Administrative Appeals Act.

The Director-General had a discretion as to whether he would debit the amount of the overpayment to the respondent's account and as to whether he would seek to recover it from her. This discretion had been wrongly exercised by the Director-General and correctly exercised by the Tribunal acting in his place. At least the applicant was not able to show that the discretion as exercised by the Tribunal had been exercised contrary to law.

On the proper construction of s.140(1) of the Act recovery could only be made if the omission was the effective cause of an overpayment. Here the evidence was such that it was open to the the Tribunal to find that the effective cause of the overpayment was not

the omission but the Department's failure to send the

I deal first with the question of whether there was a decision by or on behalf of the Director-General which could, as a matter of law, be the subject of an appeal to the Tribunal. A right of appeal to the Tribunal from decisions of the Director-General is conferred by s.15A of the Act. Sub-section (1) of that section 1s as follows:

9 September 1980 in pursuance of section 14 or 15, made a decision affirming, varying or annull- ing a determination, direction, decision or approval of an officer, being a determination, direction, decision or approval that has been reviewed by a Social Security Appeals Tribunal, then, subject to section 29 of the Administrative Appeals Tribunal Act 1975, an application may be made to the Administrative Appeals Tribunal for review of the decision of the Director-General."

Section 29 of the Administrative appeals Act 1s not of

relevance, Sections 14 and 15 of the Act are as follows:

"y4, Whenever it appears to the Director-General that sufficient reason exists for reviewing a determination, direction, decision or apvroval of an officer. under the Act (including a determination, direction, decision or approval of tne Director- General), the Director-General may review the deter- Mination, agirection, decision or approval and may affirm, vary or annul it.

"15. A person affected by a determination, direction, decision or approval of an officer under this Act (except a determination, direction, decision or approval of the Director-General)

may, within such time (if any) as is prescribed, appeal to the Director-General and the Director- General may affirm, vary or annul the deter- Mination, direction, decision or approval."

It is not clear to me how it is that the approval of the decisions to debit the overpayment in question and to seek to recover it from the respondent made on 2 March, 1981, falls within one or both of these sections. But no argument was addressed to us that it did not and the sections should not be given a too strict or technical construction. With some hesitation I therefore propose to proceed upon the basis that if either of the decisions relied upon by the respondent would otherwise be a decision for the purposes of the Administrative Appeals Act, no warrant for not so treating them arises by reason of the provisions of

The relevant provisions of the Administrative Appeals Act are sub-sections (1}, (3) and (4) of section 25, the inclusive definition of the word "decision" in sub- section 3(3} and sub-sections 43(1) and 44({1). These

are well known provisions and I do not set them out.

On 17 December, 1983, after we had reserved our decision in this matter, a differently constituted Full Court of this Court (Fox, Toohey and Fitzgerald JJ.) publisred its decision in Director-General of Social Services v. Hengan. in my opinion that case getermines what this Court's decision should be 1n relation to the first and second of the Director- General's submissions earlier set out (pp.14-15 hereof). It is true that if we were minded to do so, we could express a different view. But I think this would be most undesirable unless we were clearly of opinion that a different conclusion was to be preferred. Con- sistency of decision ana the certainty which results therefrom are vitally important for the general adminis- tration of tne law.

I confess to having nad, until the gudgments in Hangan's case were published, reservations as to whetner tnere was in this case a decision for the purposes of tne Administrative Appeais act. With great respect those reservations nave not veen entirely dispelled by what 1S there said, nor oy wnat Locknart J. nas said in his judgment which i nave nac tne adventage of

disagree with the conclusions reached by other judges 1£ only for the reason that I do not myself have a clear opinion that there should be a different outcome. Nor do I consider it necessary, bearing in mind that four judges are clearly of opinion that there is a relevant decision, to analyse the position myself. However, part of the reasons I have for my disquiet about the matter will become more apparent when I come to deal with the Director-General's fourth

I should make 1t clear that in my opinion no point of distinction of substance between Hangan's case and this case 1s revealed by a consideration of the judgments delivered in the former case. The only difference in the legislation which is involved is in the difference between s.15A of the Act, which

section applies in this case, and Part XXIVA of the

applied in Hangan's case. There is no material difference between the two provisions. There is,

in my opinion, no relevant factual difference between

the two cases. The benefits are not the same but the critical provision 1s s.140 of the Act and it arises for consideration in both cases.

There was not raised in Hangan's case the question of whether a decision to debit the respondent's account with the amount of the over- payment was a decision for tne purposes of the Administrative Appeals Act. But, since 1t 1s authority for the proposition tnat a decision to treat tne overpayment as recoverable and to take proceedings to recover it is sucn a decision, there 1s no need to express an opinion on whether a decision to raise such a decit 1s a relevant decision. Accordingly I express no view on that question.

For the reasons I aave given the Director- General's first submission shnoulc ce regected. The matters ralsec by nis second submission concern the construction of s.i40 of the Act, In tnis regard I

am respectfully in full agreement witr tae gucegments

whicn nave been deliverec in 4dangan's case, It sould

oe superfluous for me to aca my cwn anaiysis tc tnose

of the judges in inat cese. eS Fox g. sain (9.7) 2t

is sufficient if the failure or omission to comply with a provision of the Act is a contributing cause of the overpayment. It follows that I would uphold the Director~General's second submission.

I turn to consider his third submission. The submission is based on the decision of the Privy Council in Auckland Harbour Board v. The King (1924) A.C. 318 and upon s.70C of the Audit Act 1901. The Auckland Harbour Board case is authority for the proposition that no money may be taken out of the consolidated fund into which the revenues of the State have been paid, except under a distinct authorisation of Parliament;

a payment made without that authority is 1llegal and ultra vires, and the money, if it can be traced, may be recovered by the Government (p.327). There are many instances of the application of this principle. Two are to be found in the decisions of Newton J. in Commonwealth of Australia v. Burns (1971) V.R. 825

and the Court of Appeal of New South Wales in Attorney- General v. Gray (1977) 1 N.S.W.L.R. 406. There it was decided that in an action for recovery based on the principle, the defendant could not successfully rely

These authorities were said to compel the conclusion

that the Director-General had no discretion not to prdéceed to recover the overpayment which has here occurred. That was said to be a necessary consequence

overpayments of benefit which were mistakenly made.

Reference was made to s.70C of the Audit Act for the purpose of showing that it would only be if the procedure there provided for were followed that a debt such as that owed by the respondent here could be written off and consequently not made the subject of a recovery action. Relevantly the section provides that the Minister, that is the Minister for Finance, shall have, and shall be deemed at all times to have had, power to write off, inter alia, irrecoverable debts and overpayments.

I would reject the Director-General's third submission. In my opinion neither the Auckland Harbour

Board case nor the provisions of s.70C of the Audit Act

are of any relevance to the question of whether he has a discretion to decide whether he will take recovery proceedings. By s.7 of the Act the Director-General

is, subject to any direction of the Minister, that is

the Minister for Social Services, to have the general administration of the Act. Thus it is

he who is to exercise, subject to the Minister's direction, the powers and functions which need to be exercised for the purposes of the legislation. Some of these are conferred in express terms; some arise by implication.

Section 140 of the Act provides only that an overpayment shall be recoverable. It does not say that the Director-General must take proceedings to recover it. The fact that the benefit may have been paid without parliamentary authority vrovides no reason why he should. He must make the best judgment he can as to whether steps should be taken to oursue a person to whom an overpayment has been made.

In the administration of an Act such as that in question here there will, however careful those charged with its administration are, be cases where overpayments are made. Some will be due to fraud; others will be due to honest mistakes on the vart of veyees or of departmental officers; yet others mey be due to the malfunction of machines which calculate 2nd orocess payments. In many ceses the fact that an overpayment

If an overpayment is detected, the question will arise as to whether it is sensible to pursue the verson to whom it has been made. He may be quite impecunious; that would be likely to be the case more often than not in the area of social service benefits. The pursuit of such a claim may involve the throwing away of good money after bad. In other cases a compromise may be offered. Is it to be suggested that the Director-General has no power to accept half of what is owing if that seems a sensible course having regard to a vensioner's means? In other cases wisdom might indicate that action shouid await the day when a payee's financial circumstances may change. There may be something known of his private affairs which would suggest that his fortunes may change for the better at some future time. Or it may be a case where the vrovisions of sub-section 140(2) may be thought to be likely to become apvlicable in the future due to the vayee then becoming entitled to a different benefit under the Act. In such 2 case the Director-General is exvressly vested with 2 discretion to determine whether he should apply the sub-section

All these considerations strongly suggest that the Director-General should have a wide discretion to determine whether he should take steps to recover an overpayment. Such a dis- cretion is exercised daily by people in commerce. It 1s not a discretion which should be denied to an officer such as the Director-General unless legal principle plainly requires that it should be. In my opinion the Auckland Harbour Board case is authority for no more than that a payment made without parliamentary authority may be recovered. I have emphasised the word "may" because it is the word used by Viscount Haldane in the judgment which he delivered on behalf of the Board (supra at p.327). Thus in no sense can the case be said to be one which

decides that action must be taken to recover moneys

paid without parliamentary authority. All it and the later cases decide is that an action for recovery lies and estoppel will not assist the defendant. In my opinion the provisions of sub-section 140(1) are but a legislative statement of the principle.

dealing with rights of recovery of moneys due to the

Crown or whether action should or should not be taken to recover then. It is concerned, inter alia, with the circumstances in which debts and overpayments may be written off. It 1s to be observed that its terms are facultative. Thus it does not necessarily follow that the Director- General himself has no power to write off as irrecoverable moneys which have been overvaid. I express no conclusion on that question but I have in mind the difficulty which would arise if a recovery claim were compromised upon the basis of a partial payment and a release of the balance.

No other legal principle or legislative provision was relied upon by the Director-General for his sub~ mission. It follows, in my opinion, that ss.7 and 140 of the Act provide him with a discretion to voroceed to recover an overpayment or to do nothing. I should add, however, that in ordinary circumstances his vublic duty would require him to take stevs for the recovery of #n overp2yment. It would only be if the circumstances of the case were such *s to indicate a sound reason why recovery action shouid not be teken that he would be gustified in not acting.

omitted from my examples cases where compassionate con- siderations might inaicate that there ought not to be

any steps taken. I have omitted tnem because I wished

to deal separately with the question of whether compass- ionate considerations may properly be taken into account

by the Director-General when he exercises the discretion which he has. It will be convenient to resolve that question when I come to the fourth submission. In a sense the question may not very often arise. In most cases of severe hardship the person who has received the overpayment will be impecunious.

For the reasons given I would, as I have said, reject the Director-General's third submission.

I turn to consider the Director-General's fourth sub- mission. I should first state my conclusion on the question of whether or not it is appropriate for the Director-General to take into account compassionate considerations in deter- mining whether or not to institute proceedings for recovery. In my opinion it plainly is. The legislation provides for the payment of a variety of benefits to different classes of people who will usually have one thing in common; they will be 1mpecunious and in straitened circumstances. Very often their stories will be auite tragic. I find myself in respectful agreement with what was stated by the Administrative Appeals Tribunal in Gee v. Director-General of Social Services (No.2) (25 November 1981, unreported). The Tribunal, whicn was presided over by the Presiaent,

"Whatever be the correct interpretation of the sub-section, we think that any action for recovery taken under ssg.7 and 140(1) must be ; taken pursuant to the exercise of a discretion on the part of the Director-General who, in recovery actions, should have regard to the total circumstances of the case. He is administering social welfare legislation and properly should have regard, inter alia, to any financial hardship which may result from an action for recovery. ... In determining whether to seek a recovery, the Director- General may, in our view, have regard to all the particular circumstances of the case and to all other matters relevant to the admin- istration of social welfare legislation."

The sub-section referred to by the Tribunal is, of course, sub-section 140(1) of the Act.

1. The Director-General has a discretion as to whether

2. The Administrative Appeals Tribunal has power to

Act, 1t may exercise all the powers and discretions that are conferred by the relevant enactment on the person who made the decision, that is the Director- General in this case.

3. The Tribunal has exercised powers and discretions

vested in the Director-General, that is it has decided 1n the exercise of those powers and discretions that no steps to recover the over-

4, No error of law is disclosed in what it has done

I can best indicate the submissions made on behalf of the Director-General by quoting the submission made by senior counsel. He said that the discretion "was not

"We say if there is a discretion that is only part of the matter, that one must in such circumstances take into account and carefully weigh factors such as the following; first, that there is public money that has been paid out; secondly, that there was a breach of

the Act; thirdly, that the situation had reached no more than a stage where the depart- ment wanted to negotiate with Ms Hales to see

if she would pay it back in some way or another by instalments. Next, it ignored the fact, or did not take into account the fact that if an action were brought 1t 1s always open to the court to say it can be paid off in so much per week. Perhaps I should not say always but it is the practice in Victoria and I imagine it would be the same elsewhere.

Finally, nearly all cases of overpayment of a pension discovered some time later would almost necessarily involve hardship because persons on pensions who receive such money presumably spend it, and it is the nature of the thing that there would be hardship. It does not mean to say in the proper exercise of discretion one should not consider 1t, which of course one must, but it

Senior counsel added that in his submission the Tribunal

had not exercised the discretion on proper principles -

"l.. in that it did not take into account all the relevant matters that it should have taken into account. It did not undertake the balancing that is the very characteristic of the proper exercise of.a discretion."

I have earlier quoted that part of the Tribunal's decision in which it supplanted its exercise of discretion for that of the Director-General (p.11 hereof).

Although the matter is dealt with very shortly, I would take the view that the Tribunal took into account all the evidentiary matters to which I have referred concerning the respondent's lack of means and unfortunate plight.

But the essence of the complaint made by senior counsel for the Director-General was that there was no balancing of the various matters to be taken into account in deciding what should be done. The principal matter which was said to be missing was the paying of any attention at all to the fact that public moneys had been paid out as a result of a breach of the Act. Furthermore, the exercise of the discretion in this way would effect- ively prevent, at least for the time being, any negotiation with the respondent for payment by her of a lesser sum in full settlement of the claim, whether or not that lesser

sum be paid by way of instalments, small or otherwise.

In my opinion there 1s substantial force in the submissions made by senior counsel for the Director- General. There 1s not to be found in the Tribunal's reasons any indication that it did put into the scales the consideration that the respondent had, for whatever reasons, received public moneys to which she was not lawfully entitled. To me, notwithstanding considerations of hardship which there are in this and many other cases, that must always be a paramount consideration. After all, the legislature has expressly provided for recovery of overpayments in the very legislation pursuant to which these benefits are paid. Thus it contemplated recovery from persons to whom overpayments of social service benefits had been made. So the essence of the question is whether the Tribunal's failure to mention and deal with this critical consideration establishes that it has been guilty of an error of law in the exercise of its

Having reflected on the matter I have reached the conclusion that I should not find such error. I would be slow to impute to the Tribunal a failure to have given any weight at all to the consideration that the recovery of public moneys unlawfully paid was what was at stake. It is clear that the Tribunal in the short

reasons it gave for its decision was not intending to

state exhaustively all that 1t had taken into account in deciding that there should be no recovery. And I would not readily ampute to it failure consciously or otherwise

to put aside the matters relied upon by the Director-

General. But I emphasise that they are important and

should always be taken into account in an exercise such as this.

With some hesitation I have therefore reached the conclusion that the Director~General's fourth submission should be rejected. But before I conclude, there are some further matters which I should mention. These are matters to which I said I would refer when dealing with discretion and which, in my respectful opinion, bear on

the question of whether there is here a decision for the

purposes of the Administrative Appeals Act. The matters I have in mind are highlighted by

reference to some statements in the decision of the

Tribunal in Matteo v. Director-General of Social Services

(18 December 1981). In the decision of Messrs. Smith and

"The sub-section (s.140(1)) does not say, and it does not mean, 'shall be recovered in a court'. It may well be that once proceedings have been instituted in a court, or even instructions given to institute such proceed- ings, this Tribunal has no role to play: the matter would then have passed from the administrative to the judicial field. But in the present case we are looking at the position anterior to that situation. A request for

repayment does not necessarily mean that failure to comply with the request will result in legal proceedings being taken. Indeed, in the letter of request in the present case, court proceedings were not threatened.

"In considering the question whether this Tribunal has jurisdiction in this case we have been conscious of the fact that a decision of this Tribunal that there has been an overpayment in consequence of a false statement or representation, or in consequence of a failure or omission to comply with any provision of the Act, or of the amount of that overpayment, would have no binding effect on a court in which recovery of the moneys claimed to be due to the Commonwealth was later sought. The Commonwealth would have to prove its claim under the ordinary rules of evidence and discharge the ordinary onus of proof in civil matters, assisted, perhaps, by the facilitating provisions of s.143 of the Act (cf. s.138(7)). The finding of this Tribunal would be irrelevant in such proceedings. But it does not follow that this 1s a compelling reason to conclude that we have no jurisdiction. What we are looking at 1s the anterior decision to seek recovery. ... Most importantly, the Tribunal, in its role as a supervisory administrator, has a rather different function from that of a court which has no concern beyond resolving the question whether the moneys claimed are recoverable at law; by contrast the Tribunal may bring to notice any specific factors in the case that in its view make 1t unreasonable to seek recovery, or full recovery, of an amount that is strictly recoverable, and make such recommendation as it considers appropriate in the circumstances."

has said is that 1t seems to contemplate that an action for recovery may proceed notwithstanding a decision of a tribunal that proceedings for recovery ought not to be

taken. Amongst other things the Tribunal has said that

its decision "would have no binding effect on a court in which recovery of the moneys claimed to be due to the Commonwealth was later sought". What I do not understand about this passage is how, if the Tribunal, standing in the shoes of the Director-General, has said that there is to be no recovery, an action can subsequently be brought. If it means that the Director- General is not bound to act in accordance with the decision, then that would seem to me to be a sound reason why there is no decision from which an appeal may be brought to the Tribunal.

Of course, upon the basis that there is a decision, the Tribunal's statements may simply be wrong and that may be enough to resolve the apparent conflict which exists. But what concerns me, as I really have earlier indicated, is the ultimate effect of a decision such as the Tribunal has made here. Is it intended forever to put an end to any steps which might otherwise have been taken for recovery of moneys, no matter what change in circumstances occur. Or 1s it no more than an expression of opinion that at this stage there ought to be no recovery. If the Director-General in, say, six months time again contemplates recovery will he need to demonstrate a change in circumstances or may he proceed to sue or to demand payment notwithstanding

the Tribunai's decision. In other words, what effect

does it have. And if he does sue, 1s he to be exposed to review each time a question arises as to whether he should compromise the claim for a lesser sum or accept payment in instalments or defer further action for the time being. These are matters which must arise in the day to day administration of the Act, The thought that each time any such question arises for decision, there also arises the possibility of review places, in my opinion, an appalling burden upon the Director-General and upon the Tribunal to which countless cases 1nvolving these issues wll] undoubtedly come.

Of course it may be suggested that in those cases, as distinct from the present, although there 1s a decision, it 1s not a decision "under an enactment". But that would seem unlikely. All the examples have a common factor, namely, the question of whether the Director-

General should institute or maintain proceedings for recovery by the Commonwealth pursuant to s.140 of the Act.

These considerations suggest to me that there is not in the decision here or in any of the decisions I have postulated the ultimacy wnich in earlier judgments has been thought to be necessary before there will be a decision for the purposes of the Administrative Appeals Act; cf.

Director-General of Social Services v, Chaney (198C) 31 A.L.R. 571, especially at v.51,

Furthermore, the fact that the statute has, by s.140, expressly conferred the right of recovery upon the Commonwealth might lead one to conclude, notwith - standing the provisions of s.15A of the Act, that the legislature did not intend decisions as to whether recovery action should be taken to be the subject of appeal to the Tribunal. Persons against whom recovery- was: sought would, in that. event, be in the same position -as any defendant sued in the court in which the actiom was instituted. Their rights would be fully protected; they could not be adjudged liable to pay until after a full hearing in which the court would consider all matters of defence whether based on law or fact. However, as earlier said, the question of whether there is a decision is concluded by Hangan's case and I would not wish to say more about that.

ert oontiagars 4a Bo prececing. paces 227° -2 793; of the reasons for lode 7a7 - > aorcurable yode 73 cue £2 Snsp, 274 Pas aT Associate