Hood v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Background 4 Mr Hood, as the Tribunal recorded, was diagnosed in 1971 with idiopathic grand mal epilepsy, which was treated with medication until 1976, when he ceased taking the medication. The epilepsy, however, remained dormant until 1992, when the seizures began to recur. Mr Hood attributes this recurrence to his involvement in an armed assault by a Mr Scocic, at whose trial in the Supreme Court of Victoria he later testified. 5 In the Tribunal, Mr Hood sought the review of two decisions: the first, a decision refusing to backdate to 26 June 1991 the disability support pension ("DSP"), which he was then receiving ("the start date decision"); the second, to cancel his DSP on 10 July 2007 ("the cancellation decision").

The Start Date Decision 6 On 25 May 2004 Mr Hood had been transferred to a DSP with effect from 28 April 2004 from Newstart allowance, which he had been paid from 17 December 2003. In mid to late 2005, Mr Hood approached Centrelink questioning why he had not been granted a pension from 1992, the date of the recurrence of his epileptic symptoms. His discussions with Centrelink led, on 23 January 2007, to a decision by an authorised review officer that the start date of his DSP payments was correct. Mr Hood applied for review of that decision by the Social Security Appeals Tribunal ("the SSAT"), which affirmed it on 30 April 2007. In its decision, the subject of the present appeal, the Tribunal similarly affirmed the initial start date decision, on the basis that Mr Hood had not claimed DSP before January 2004: see the Tribunal's reasons for decision at par 22.

The Cancellation Decision 7 On 27 March 2007, Mr Hood was notified that a medical review of his entitlement to DSP was to take place. That led, in June 2007, to his then treating doctor, Dr Varney, lodging with Centrelink the form which had been required by the notification. Dr Varney recorded, amongst other things, Mr Hood's epileptic tendency, that seizures occurred approximately every three months (after which Mr Hood was debilitated for three days), and that he, Dr Varney, proposed no treatment by medication. On 15 June 2007, Mr Hood underwent a job capacity assessment. The report which resulted from that assessment recommended an impairment rating of "0", and assessed his work capacity as 30 or more hours per week. 8 On 10 July 2007, Mr Hood was notified of the cancellation of his DSP, by a letter which included these paragraphs; To be eligible to receive [DSP], you need to have a medical impairment rating of 20 points or more. This is worked out by using the impairment tables in the Social Security Act 1991 to rate how much your health is affected by your disability. As your impairment rating is below 20 points, a decision has been made that you are not eligible for a [DSP] at the moment.

In making this decision we took into account your skills, qualifications, work history, the report from our assessor and the medical evidence you and your doctor gave us…

On 14 August 2007, Dr Burke, Mr Hood's new treating doctor, completed a report which recorded that Mr Hood had commenced treatment with Epilam, an anti-convulsant drug, and that it was planned to increase his dosage of it "as tolerated". 9 On 9 October 2007, Mr Hood was notified that an authorised review officer had reviewed and affirmed the cancellation decision. The SSAT, in turn, affirmed the cancellation decision on 27 November 2007 and the SSAT's decision was then affirmed by the Tribunal's decision which is the subject of the present appeal. 10 I turn now to consider in turn each of the "questions" put by Mr Hood in his further amended notice of appeal, which are set out at [2] of these reasons.

Question 1 11 The issue raised by Question 1 is, essentially, whether the Tribunal was entitled to take into account circumstances or events post-dating the SSAT's decision affirming the cancellation of Mr Hood's DSP. As is well known, the role of the Tribunal is to "stand in the shoes" of the decision-maker; see Costello v Secretary, Department of Transport (1979) 2 ALD 934 at 943, so as to make afresh the decision under review. Thus, the Tribunal has reposed in it all the powers and discretions of the original decision-maker; this is the effect of s 43(1) of the AAT Act, which provides; 43 Tribunal's decision on review

(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing: (a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review and: (i) making a decision in substitution for the decision so set aside; or (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. 12 The Tribunal's task in assuming afresh the decision-maker's function is to make the correct or preferable decision in the light of the circumstances as they exist when the matter comes before the Tribunal. This has recently been emphasised by the High Court in Shi v Migration Agents Registration Authority (2008) 235 CLR 286, where Kiefel J said, at 327-8, that; [141] The reasons of the members of the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs confirm what is apparent from s 43(1), that the Tribunal reaches its conclusion, as to what is the correct decision, by conducting its own, independent, assessment and determination of the matters necessary to be addressed. To the contrary of the argument put by the respondent on this appeal, that the Tribunal's exercise of power is dependent upon the existence of error in the original decision, Smithers J denied that the Tribunal was limited to something of a supervisory role. As his Honour said, the Tribunal is authorised and required to review the actual decision, not the reasons for it.

[142] In considering what is the right decision, the Tribunal must address the same question as the original decision-maker was required to address. Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision. The issue is then one of relevance, determined by reference to the elements in the question, or questions, necessary to be addressed in reaching a decision. It is not to be confused with the Tribunal's general procedural powers to obtain evidence. The issue is whether evidence, so obtained, may be taken into account with respect to the specific decision which is the subject of review.

(citations omitted) See also per Kirby J at 298-301, and per Hayne and Heydon JJ at 314-5. 13 It is therefore beyond question, in my view, that the Tribunal acted correctly in approaching the matter afresh, in the circumstances which obtained when it came to make the decision. Nothing in s 94 of the Social Security Act 1991 (Cth) ("the SSA") requires a different outcome.

Question 2 14 Question 2, it will be recalled, concerns procedural fairness. As emerged in submissions, the contention underlying the question was that Mr Hood, who was self-represented before the Tribunal, had been denied procedural fairness in that, first, he was not given any, or any sufficient, notice of the case sought to be put against him and thus was in no position to respond to it. The second alleged denial of procedural fairness was said to have been constituted by the manner in which the Tribunal had questioned Mr Hood. 15 In support of the first limb of this contention Ms Sheehan of Counsel, for the applicant, contended that Mr Hood had not been accorded procedural fairness because the Tribunal had made its decision on a basis different from that which had commended itself to the SSAT. To make this contention good, Mr Hood had to establish that he had not been given adequate notice of the case which he had to meet. He failed to discharge that threshold onus because the Secretary's statement of facts and contentions had been sent to him by way of service on 19 August 2008, some months before the hearing in the Tribunal. Nor do I consider that there has been a denial of procedural fairness flowing, as Counsel for the applicant suggested, from the Tribunal's failure to afford appropriate assistance to the applicant. In this context, Ms Sheehan referred me to what was said by a Full Court of this Court (Sackville, Kenny and North JJ) in Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438, especially at 445-6, where, in relation to the assistance to be given by a trial judge to an unrepresented litigant, their Honours said; [27] In Neil v Nott (1994) 68 ALJR 509; 121 ALR 148, the High Court considered whether the trial judge's exercise of discretion to refuse an extension of time for lodging an application for maintenance and support under the Administration and Probate Act 1958 (Vic). The Court observed (at 150) that a

"frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy". In Abram v Bank of New Zealand [1996] ATPR 42340 at 42347, a Full Federal Court, faced with an unrepresented litigant's claim that the trial judge had not given him appropriate assistance to present his case, made this comment:

"What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case." We respectfully agree with this observation. Because the duty of the judge varies according to the factors identified by the Full Court in Abram, the duty to assist an unrepresented accused in criminal proceedings is likely to be more extensive than that imposed on a judge hearing civil proceedings in which one or more of the parties are not legally represented: cf MacPherson v The Queen (1981) 147 CLR 512; D A Ipp, "Judicial Intervention in the Trial Process" (1995) 69 Australian Law Journal 365 at 369-370.

[28] The general principles governing the role of the judge in civil proceedings involving an unrepresented litigant have been stated in Rajski v Scitec Corporation Pty Ltd (unreported, Court of Appeal, NSW, Full Court, No CA 146 of 1986, 16 June 1986). Samuels JA said this (at 14):

"In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent." Mahoney JA made the following observation (at 27):

"Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done." These comments have been referred to with approval in subsequent cases: see Johnson v Johnson (1997) 139 FLR 384 at 406 (Fam Ct/FC) (and cases cited there); Morton v Vouris (1996) 21 ACSR 497 at 513-514, per Sackville J. There is nothing in Neil v Nott inconsistent with what was said in Rajski v Scitec Corporation.

16 It was then suggested that Mr Hood had been denied procedural fairness because the Tribunal - "did not cross-examine Dr Hjorth [a witness called by the Secretary] as to whether the assessment was premature, or advise [Mr Hood] that its findings would be based upon that premise". This submission, as Ms MacDonnell of Counsel, for the Secretary, pointed out, was misconceived, because although its procedure may in part be inquisitorial, it is no part of the Tribunal's function to explore by cross-examination of a particular witness the presence or absence of a reason which ultimately may be influential in the making of its own decision. 17 If, however, Ms Sheehan's contention went no higher than saying that the Tribunal had been unduly unfavourable, in the procedure it adopted, to Mr Hood's interests, it must also be rejected. That is because s 39 of the AAT Act requires, so far as is relevant, only that the Tribunal ensure that a party to a proceeding be given a reasonable opportunity to present his, her or its case. There was before me no contention that the Tribunal had not complied with its obligations under s 39 and I can discern nothing in the record of the Tribunal's proceedings to support the view that s 39 had not been complied with. 18 It was next contended, under this head, that the Tribunal had "allowed and engaged itself in cross-examination of the applicant by asking improper questions". In support of that contention, I was referred to s 41 of the Evidence Act 1995 (Cth), as well as to Libke v The Queen (2007) 230 CLR 559 and Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478. 19 The short answer to this contention is that the Tribunal is not bound by the rules of evidence; see s 33(1)(c) of the AAT Act, which provides; 33 Procedure of Tribunal

(1) In a proceeding before the Tribunal: … (c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. 20 In any case, the Tribunal's decision was not based upon what emerged during what was said to be "improper" questioning. Rather, it resulted from the Tribunal's acceptance of Dr Hjorth's opinion, as appears from pars 25 and 26 of the Tribunal's reasons for decision. 21 What I have said above at [14]-[20] is, however, subject to this observation. To frame a question, as the present further amended notice of appeal does, as being whether the Tribunal failed to "comply with the principles of procedural fairness" does not raise a question of law as required by s 44. An allegation of a failure to accord procedural fairness may impute an error of law in, for example, an application for judicial review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). But an error of law is not synonymous with a question of law. As I pointed out in Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515, at 527; If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law. The approach taken in that case has since been endorsed by several Full Courts of this Court: see MacDonald, supra, at 382 [14], and the authorities there cited. Question 2, in the terms set out at [2] above, asks "whether" the failure of the Tribunal "to accord procedural fairness" led to various consequences. The question of whether procedural fairness has been accorded is one of fact, to be answered by an analysis of all the circumstances of the case, viewed against the elements of procedural fairness discernible on a proper construction of the relevant statutory regime. A pure question of law of the type explained in authorities like Lambroglou (supra), Birdseye (supra) and Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 might therefore be stated with precision in terms of whether some specified act or omission by the Tribunal has contravened the obligations imposed on it by s 39 of the AAT Act, but not, in my view, as a general question of whether procedural fairness, as an unconfined notion, has been accorded. 22 As I have already indicated, no attack of the requisite type has been mounted against the procedures followed by the Tribunal in this case. Even had there been such an attack, I would have been unable, after a full review of the available material, to uphold it. Accordingly, because of its deficiencies in form and substance, question 2 cannot avail the applicant.

Question 3 23 In her submissions, Ms Sheehan dealt with Question 3 concurrently with Question 2, under the heading "failure to accord procedural fairness". Question 3, as Ms MacDonnell pointed out; …is not a pure question of law. The question contains the implicit premise that a finding of fact that a condition is permanent precludes the Tribunal from making a finding of fact that the condition has not been treated. 24 I accept that submission. It is indisputable that it was open to the Tribunal, standing in the shoes of the original decision-maker in the manner described in the authorities noted at [12] of these reasons, to draw a factual conclusion within the framework (as is required by s 94(1)(b) of the SSA) of the Impairment Tables contained in Schedule 1B to that Act. That, quite unexceptionably, is what the Tribunal did and I do not consider that any question of law which could be answered favourably to the applicant arises from its having taken that course.

Question 4 25 Question 4, as set out at [2] above, results from the Tribunal's mistaken reproduction of the terms of s 94(2) of the SSA as it stood at the time of the Tribunal's decision rather than at the time of the cancellation decision. The change in the terms of the subsection altered a qualifying requirement that a person not be able to work for at least 15 hours a week to one that the person not be able to work for at least 30 hours a week. Given that Mr Hood's ability to work was not directly in issue in the Tribunal (as its decision turned on paragraph (b) and not on paragraph (c) of s 94(1)), it does not appear that the Tribunal's conceded clerical error had any operative effect on its decision. Question 4 was only faintly pursued before me, where Ms Sheehan submitted that; Now, it didn't form a significant - well, it didn't form any part of the actual decision of the AAT, but we say, your Honour, it is relevant to get the legislation right to understand the whole picture with respect to the person's entitlement. Mr Hood was cross-examined to some degree about his capacity to work, and he had previously done handyman work, if you like, for a real estate agent. There was potentially an issue that the AAT had to resolve in relation to that capacity to work, and, in my submission, it's an error of law and simply not good enough to say that you can quote the wrong legislation. 26 Although whether a particular statutory provision is applicable to a given set of facts is a question of law, for an appeal under s 44 to be "on" such a question, the answer to the question must be capable of affecting the decision of the Tribunal from which the appeal has been brought. Because s 94(2) of the SSA in either of its forms did not affect the Tribunal's decision, Question 4 did not raise a question justiciable under s 44.

Question 5 27 Question 5 in the amended notice of appeal in the form in which it was cast bore little, if any, relation to what was put on behalf of the applicant in submissions under this head. Those submissions, as they were developed, were two-fold and at their highest asserted that; · The Tribunal should have found, as a fact, that Mr Hood had made a claim for and was eligible for DSP from 1992. "That issue", it was submitted, "involved both facts and law not properly explored by the AAT, Burgess v Secretary, Department of Family and Community Services [2004] FCA 136"; and · The Tribunal should have backdated Mr Hood's DSP start date to 17 December 2003 (rather than 28 April 2004), as "the decision of the SSAT which addressed that issue was in error in its interpretation of the [SSA] s 109(2) as a notice of the decision was not given until 6 December 2006…". 28 The first of those submissions, as is apparent from its terms, is not directed to a question of law. Even if the submission be understood as going to whether Mr Hood was eligible for DSP from 1992, that question cannot be answered in a way which would entitle the applicant to any useful relief. In order for him to have succeeded on this question, it would have been necessary for the applicant to have been in continuous receipt of income support payments flowing from an "incorrect claim" as that term is comprehended by s 15 of the SSA. That was the point elucidated by Wilcox J in Burgess to which Mrs Sheehan made reference; see esp. at [12]ff. The absence of any claim at all between 21 October 1998 and 17 December 2003 is not, in my view, an "incorrect claim" of that type. 29 As to the second submission advanced under this head, the backdating result for which Ms Sheehan contended depends upon s 109(2) of the SSA, which provides; 109 Date of effect of favourable determination resulting from review

… … (2) If: (a) a decision (the original decision) is made in relation to a person's social security payment; and (b) a notice is given to the person informing the person of the original decision; and (c) more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and (d) the favourable determination is made as a result of the application for review; the favourable determination takes effect on the day on which the application for review was made. As Ms MacDonnell correctly pointed out, Mr Hood does not satisfy the prerequisite for back-dating erected by s 109(2), in that no favourable determination was made as a result of an application to the Secretary under s 129 of the SSA.

Question 6 30 Question 6 was not the subject of any submission advanced on behalf of the applicant. I have therefore regarded it as having been abandoned.

Conclusion 31 For the reasons outlined above, the applicant is not entitled to the relief he seeks. In my view, none of the "questions of law" raised by the further amended notice of appeal properly answer that description in s 44 of the AAT Act. To the extent that a true question of law can be disentangled from any of the submissions advanced on behalf of the applicant, the answer to it cannot avail the applicant by supporting an order setting aside the Tribunal's decision. The appeal must therefore be dismissed and I shall hear Counsel on the question of costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.