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[1993] FCA 213
Federal Court of Australia
1993-05-05
Lee JJ
Original judgment source is linked above.
IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA
Administrative Law - decision - review by Administrative Appeals Tribunal - identity of issue before Tribunal with issue in previous criminal proceeding - weight to be given to conviction recorded in that proceeding.
Administrative Law - Administrative Appeals Tribunal - "abuse of process" and "public policy" - relevance to administrative review procedures.
Administrative Appeals Tribunal Act 1975, sub-para.43(1)(c)(ii)
Social Security Act 1947 Pt.XIX (Div.4); ss.239, 246; sub-ss.239(7), 246(2); para.239(1)(b); sub-para.239(1)(a)(i)
Social Security Act 1991 ss.1222A, 1223, 1224, 1231, 1282, 1283; sub-s.1283(1), Schedule 1A
Cirkovski v. Secretary, Department of Social Security [1992] AATA 33; (1992) 15 AAR 55
Commissioner, Australian Federal Police v. Butler [1989] FCA 408; (1989) 91 ALR 293
Saffron v. Federal Commissioner of Taxation [1991] FCA 363; (1991) 102 ALR 19
Secretary, Department of Social Security v. Mariot (1992) 25 ALD 581
Secretary, Department of Social Security v. Schofield [1992] FCA 360; (1992) 16 AAR 127
Walton v. Gardiner (High Court, 29 April 1993, unreported)
Wiest v. Director of Public Prosecutions [1988] FCA 450; (1988) 23 FCR 472
Solicitor for the Respondent: Australian Government Solicitor
2. The order of the Court made 23 December 1992 be set aside and in lieu thereof, the following order be made:
The appeal from the decision of the Administrative Appeals Tribunal
be dismissed.
3. The respondent pay the appellant's costs of the appeal to be taxed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
SPENDER, GUMMOW AND LEE JJ The appellant ("Mrs Ridley") appeals from an order of a Judge of this Court which allowed an "appeal" from a decision of the Administrative Appeals Tribunal ("the Tribunal") that had set aside a decision of a delegate of the respondent ("the Secretary"), made under s.246 of the Social Security Act 1947 ("the 1947 Act"), to "raise and recover" an "overpayment" of $46,339.10 paid to Mrs Ridley as a pension under the 1947 Act and had set aside a decision of the Social Security Appeals Tribunal ("the SSAT") that had affirmed the decision of the delegate.
2. The application to the Tribunal to review the decision of the SSAT was filed in the Tribunal on 17 January 1991. The decision of the Tribunal was made on 13 July 1992. The 1947 Act was repealed on 1 July 1991 by s.3 of the Social Security (Rewrite) Transition Act 1991. On the same day the Social Security Act 1991 ("the 1991 Act") came into operation. Section 4 of the Social Security (Rewrite) Transition Act 1991 inserted Schedule 1A (Savings and Transitional Provisions) in the 1991 Act. Clause 15(1) of that Schedule provides that an application to the Tribunal made under the 1947 Act before 1 July 1991 and not determined by that date has effect from 1 July 1991 as if it were an application made under sub-s.1283(1) of the 1991 Act. Sub-clauses 15(2) and 15(3) of Schedule 1A enable a decision made pursuant to such an application to have effect on a date before 1 July 1991 and further provide that in respect of the period between the date of effect of the decision and 30 June 1991 the decision is to have effect as if it were a decision made by the Tribunal under Div.4 of Pt.XIX of the 1947 Act.
3. The apparent intention of cl.15(3) of Schedule 1A is to require a decision made after 1 July 1991 on an application made to the Tribunal under Div.4 of Pt.XIX of the 1947 Act to apply the law as it stood prior to the repeal of the 1947 Act in relation to that part of the decision which has effect in respect of a period occurring before 1 July 1991. It would also appear to be intended that an application to the Tribunal which has effect from 1 July 1991 as if it were an application under sub-s.1283(1) of the 1991 Act, is an application to which s.1282 of the 1991 Act applies and that decisions of the SSAT and of the Secretary made under the 1947 Act are to be treated as if they were decisions made under the 1991 Act. (See Secretary, Department of Social Security v. Schofield [1992] FCA 360; (1992) 16 AAR 127.)
4. Application of the proper construction of the transitional provisions has been the cause of considerable uncertainty in the Tribunal. (See Cirkovski v. Secretary, Department of Social Security [1992] AATA 33; (1992) 15 AAR 55; Secretary, Department of Social Security v. Mariot (1992) 25 ALD 581 at p 602 et seq.)
5. In the present case the decisions of the Secretary and of the SSAT set aside by the Tribunal were made in September and December 1990 and were decisions to which s.1283 of the 1991 Act applied as if they were decisions made under the 1991 Act. On the hearing of the appeal no issue was raised that the Tribunal had applied the law incorrectly in respect of the transitional provisions and no question was submitted to the Court for determination as to changes in the law effected by the repeal of s.246 of the 1947 Act and its re-enactment in different terms in ss.1222A, 1223, 1224 and 1231 of the 1991 Act.
6. Before turning to the judgment of the Court the subject of this appeal, it is appropriate to set out a summary of relevant facts.
7. Between 29 January 1981 and 6 August 1987 Mrs Ridley (then known as Mrs Bennett) received a "widows pension" ("the pension") under the 1947 Act. Mrs Ridley married Mr Ridley on 30 January 1988.
8. By letter dated 15 July 1988 a delegate of the Secretary demanded that Mrs Ridley repay to the Commonwealth a sum of $46,371.10 said to be the amount by which the pension received by Mrs Ridley exceeded her entitlement under the 1947 Act. The letter stated as follows:
"The overpayment occurred because you were living in
a situation similar to that of a married couple but
did not advise the department of your correct
domestic circumstances. You therefore continued to
receive payments of pension as a single parent."
The Department of Social Security ("the Department") calculated the amount claimed from Mrs Ridley upon the assumption that she was not entitled to receive any of the pension paid to her under the 1947 Act between 16 July 1981 and 6 August 1987. When interviewed by an officer of the Department in May 1988 Mrs Ridley denied that she had been living with Mr Ridley as man and wife between 1981 and 1987 and stated that not until late 1987 did she and Mr Ridley begin living together as a couple. On 15 August 1988 Mrs Ridley applied to the SSAT for a review of the "decision" to demand payment from her of the sum claimed. On 13 October 1988 Mrs Ridley withdrew that request for review.
9. By letter dated 8 March 1989 the Department advised Mrs Ridley that the whole of the family allowance ("the allowance") payable to her under the 1947 Act in respect of two dependent children would be applied to the repayment of the sum claimed. Mrs Ridley was the mother of two children aged 12 and 6. The elder child was a child of her first marriage. Mr Ridley was the father of the younger child. On 23 March 1989 Mrs Ridley sought review of the decision to apply the whole of the allowance to repayment of the claimed overpayment. On 12 April 1989 the Department advised Mrs Ridley by letter that the decision to so apply the allowance had been reconsidered but would not be altered.
10. On 10 July 1989 Mrs Ridley pleaded not guilty in a Court of Petty Sessions to 5 charges of making false statements and to 120 charges of knowingly obtaining the payment of a benefit that was not payable to her under the 1947 Act. The charges were brought pursuant to sub-para.239(1)(a)(i) and para.239(1)(b) of the 1947 Act. All charges were heard together. Mrs Ridley defended the charges but was convicted of each offence and sentenced to 18 months imprisonment. Pursuant to the provisions of sub-s.239(7) of the 1947 Act it was also ordered that Mrs Ridley pay to the Commonwealth a sum of $40,405.40 as an amount equal to the "amount paid by way of pension...in consequence of the act, failure or omission in respect of which (Mrs Ridley) was convicted".
11. Mrs Ridley was released from prison on 25 January 1990. During her imprisonment and until August 1990 the family allowance payable in respect of the two dependent children was paid to Mr Ridley.
12. In August 1990 Mrs Ridley was requested by officers of the Department to apply for the payment of the allowance to herself to be resumed. From 22 August 1990 the allowance was applied to the reduction of the amount claimed from Mrs Ridley.
13. On 30 August 1990 Mrs Ridley completed an SSAT form to commence an "appeal" against a decision described as the "raising of an overpayment" for the pension paid to Mrs Ridley between 1982 and 1987. In the appeal form Mrs Ridley described the grounds for her appeal as follows:
"I believe the Department's decision is wrong because
I was not living in a de facto relationship at that
time and I was supporting myself and my four
children. Also, any repayments of the money
involved would cause immediate hardship to my
family."
14. On 3 September 1990 the Department received from Mrs Ridley a statement of financial circumstances and a request for "a review of the loss of (the) family allowance". Mrs Ridley stated that the family depended on the payment of the allowance to meet ordinary living expenses. In that request for review Mrs Ridley also referred to a "present appeal against the Department's decision of an overpayment".
15. On 7 September 1990 a delegate of the Secretary recorded that a
decision had been made "to continue recovery of (the overpayment) by restricting Family Allowance in full as no attempt to repay has been made by client". By letter dated 28 September 1990 Mrs Ridley was informed by the Department that it had been decided that "the recovery of this debt through the total withholding of your Family Allowance payments is not unreasonable".
16. Meanwhile, on 4 September 1990 the SSAT advised the Department of Mrs Ridley's appeal. The appeal was treated by the Department as the "reactivation" of the appeal lodged by Mrs Ridley in September 1988 and withdrawn in October 1988.
17. The SSAT conducted its review hearing on 7 December 1990. Mrs Ridley attended the hearing and was assisted by a member of a community law centre. A letter was presented to the SSAT on Mrs Ridley's behalf in which it was submitted that "Mrs Ridley was entitled to the pension for the entire period as she was not living in a relationship like that of a marriage". Alternatively, it was requested that by reason of the financial hardship being suffered by her family there should be a waiver in whole or in part of the claimed overpayment, or deferral of the recovery of that sum until the family received an income other than social security payments under the 1947 Act, or the application of no more than $10 per month from the allowance in reduction of the sum claimed.
18. The SSAT made its decision on the day of review. Reasons for the decision were provided on 21 December 1990. At the conclusion of those reasons the SSAT stated that:
"The Tribunal decided to affirm the decision under
review that the overpayment of widows (sic) pension
has been correctly raised and that the overpayment
should be recovered at the current rate of
withholdings."The SSAT stated that it had
considered the information presented to it in
respect of Mrs Ridley's claim that she had not been
living in a "de facto" relationship with Mr Ridley
whilst she received the pension and had concluded
that such a relationship did exist during the
relevant period. The reasons also recorded that
the SSAT did not consider it appropriate to waive
or write off any part of the amount claimed from
Mrs Ridley.
19. In hearing the appeal from the decision of the SSAT the Tribunal heard evidence from Mrs Ridley and other witnesses to the effect that Mrs Ridley had not been living in a de facto relationship with Mr Ridley at the time she received payment of the pension.
20. Counsel for the Secretary submitted to the Tribunal that Mrs Ridley's convictions on the charges brought under s.239 of the 1947 Act precluded the Tribunal from finding facts contrary to facts essential for those convictions. Neither details of the charges and convictions nor any record of the evidence adduced on the hearing of those charges was submitted to the Tribunal.
21. The Tribunal referred to other recent decisions of the Tribunal in which the Tribunal, differently constituted, had considered the effect of a conviction in such circumstances and stated that it would follow the conclusions expressed in those decisions, namely that the Tribunal was not prevented by the fact of a conviction from deciding for itself facts that were essential facts for that conviction.
22. The Tribunal found that Mrs Ridley was a convincing, consistent and credible witness and further found that evidence given by her mother and her son came from honest witnesses. Accordingly, the Tribunal found that it was not reasonably satisfied that Mrs Ridley "ever lived with Mr Ridley as his wife on a bona fide domestic basis or...was ever his de facto spouse" during the relevant period. The effect of the Tribunal's decision was that there was no foundation for the contention that Mrs Ridley had obtained the payment of a pension that should not have been paid to her between July 1981 and August 1987. The Tribunal directed that the matter be returned to the Secretary to "calculate (Mrs Ridley's) entitlements".
23. An "appeal" to this Court under s.44 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") from a decision of the Tribunal is, in the original jurisdiction of the Court, and limited to an appeal on a question of law. The appeal was commenced on the following questions of law: a) what effect should the Tribunal have given to the fact that Mrs Ridley had been convicted as referred to above; b) in what circumstances could Mrs Ridley lead evidence before the Tribunal which called into question those convictions; and c) did the Tribunal give proper and adequate reasons for its decision to disregard those convictions.
24. On the hearing of the appeal the questions of law became, inter alia, whether the Tribunal erred in admitting evidence contradicting the essential facts underlying Mrs Ridley's convictions, whether the Tribunal failed to give proper reasons for its decision in concluding that the convictions did not preclude Mrs Ridley from arguing that she was not in a de facto relationship with Mr Ridley, and whether the Tribunal had failed to give any weight to the convictions in determining whether a de facto relationship existed.
25. It was submitted on the hearing of the appeal before his Honour that it was "contrary to public policy" and "an abuse of process" to permit Mrs Ridley to "re-litigate" before the Tribunal, an issue necessarily determined against her by the convictions in that the convictions were conclusive proof of the essential facts on which they were based.
26. His Honour carefully reviewed the authorities relevant to those submissions and concluded that pursuant to the decision of the Full Court of this Court in Saffron v. Federal Commissioner of Taxation [1991] FCA 363; (1991) 102 ALR 19 it was not open to the Secretary to submit that Mrs Ridley's convictions were conclusive proof of the essential facts upon which those convictions were based. His Honour also said that his earlier decision in Commissioner, Australian Federal Police v. Butler [1989] FCA 408; (1989) 91 ALR 293 which had suggested that public policy may prevent a court going behind a conviction, had to be read subject to the reasoning of the Full Court in Saffron. His Honour held that it could not be said that there would be an abuse of process in permitting the Tribunal to go behind Mrs Ridley's convictions.
27. By a notice of contention filed shortly before the hearing of the appeal, the Secretary sought to put in issue on this appeal both of the above determinations by his Honour. Counsel for Mrs Ridley made no submissions on the contentions raised in the notice. The notice was not included in the appeal papers. The Court was not informed that it had been filed nor advised whether the notice had been served on Mrs Ridley's solicitors. The Court has not had the benefit of full argument on the points sought to be raised and it would be inappropriate for the Court to enter upon any detailed consideration of those issues. Therefore, we make the following limited observations.
28. On the facts of the present case the decision to apply the allowance payable to Mrs Ridley in reduction of an amount claimed to be owed by her to the Commonwealth was founded upon a determination under sub-s.246(2) of the 1947 Act that an amount had been paid to Mrs Ridley by way of pension that should not have been paid. That determination and the decision to recover that sum by sequestration of the allowance payable to Mrs Ridley was not dependent upon the conviction of Mrs Ridley in the Court of Petty Sessions. It followed that evidence of Mrs Ridley's convictions would not have been conclusive of any issue and it was open to Mrs Ridley to challenge the essential facts on which the convictions were based notwithstanding that the convictions may have been relevant to the exercise of the power under challenge. His Honour neither misunderstood nor misapplied the reasoning of the Full Court in Saffron in reading that conclusion.
29. With regard to the submission that it was "contrary to public policy" and an "abuse of process" to permit Mrs Ridley to "re-litigate" before the Tribunal an issue determined against her by the convictions recorded in the Court of Petty Sessions, it is necesssary to re-state the function of the Tribunal. The Tribunal has been established to review decisions of administrators and, if necessary in conducting that review, to exercise the powers and discretions of such decision-makers. The provision of a forum in which a party has an opportunity to present material and make submissions pertinent to the exercise of administrative powers does not make a hearing of that type a proceeding within a federal system for the administration of justice. The adoption by the Tribunal of an adversarial procedure in the conduct of its review does not make that review part of the process of litigation. It follows, therefore, that review of an administrative decision does not involve consideration of whether the conduct of the review may bring the administration of justice into disrepute. Whatever procedure the Tribunal may adopt to carry out its statutory duties, it performs solely administrative functions in deciding what administrative decision is appropriate. The AAT Act provides to a person affected by the exercise under an enactment of an administrative decision-making power the right to seek to have a reviewing authority (the Tribunal) exercise that decision-making power. That person is entitled to present to the Tribunal any material that ought to be taken into account in the making of that decision. If that material also challenges facts that were essential for the conviction of that person of an offence, it is not a requirement of law under the rubric of public policy that the review of an administrative decision and the exercise of an administrative discretion or decision-making power be carried out by excluding from the consideration of the reviewing authority material which challenges the grounds on which the prior conviction was based.
30. As to the appropriateness to an administrative proceeding of the concept of "abuse of process" see Wiest v. Director of Public Prosecutions [1988] FCA 450; (1988) 23 FCR 472 at pp 483, 486-487, 526-528. More recently, in Walton v. Gardiner (High Court, 29 April 1993, unreported) Brennan J referred to the jurisdiction of courts to prevent the exercise of statutory powers for improper purposes and to the jurisdiction to prevent abuses of process of the courts. His Honour (at p 29 of the Print) continued (omitting footnotes) as follows:
"Although the concept of alien purpose is the basis
of both the jurisdiction to prohibit an abuse of
administrative power and the jurisdiction to stay
proceedings as an abuse of process, the inquiry in
the former case is directed to the purpose of the
repository of the power and in the latter case is
directed to the purpose of the party instituting
the relevant proceedings. In the former case, the
question is whether the power would be or would
have been exercised but for the alien purpose; in
the latter case, the question is whether the alien
purpose is the predominant or only substantial
purpose of the party who institutes the relevant
proceedings. Therefore, where proceedings are
instituted by a party for the purpose of oppressing
another party, the proceedings may be stayed.
In reference to an abuse of judicial process, the
concept of alien purpose has a further
significance: it may relate not only to the purpose
of the party instituting the proceedings but to the
object which the proceedings themselves are apt to
achieve."
Toohey J agreed with Brennan J Their Honours were in the minority as to the disposition of the appeal, but the majority (Mason CJ, Deane, Dawson JJ) reached their decision on a footing that did not oblige them to consider this distinction.
31. We are satisfied that the reasons of his Honour exhibited no error in respect of either of the grounds raised in the notice of contention.
32. His Honour went on to hold, however, that although a conviction in itself did not conclude the facts underlying the conviction and bind an administrative decision-maker, if the issue in the criminal proceeding was the same issue before the decision-maker the fact of conviction had to be taken into account by the decision-maker and given "due weight". His Honour said it was difficult to determine whether the Tribunal had taken account of the conviction of Mrs Ridley. The relevant passage in his Honour's judgment is as follows:
"The structure of the judgment suggests that the
Tribunal reached the conclusion that Mrs Ridley was
not living in a de facto relationship with Mr
Ridley without any reference at all to the finding
of the court having criminal jurisdiction. The
fact of conviction is dealt with thereafter in the
passage cited earlier under the heading
'jurisdiction'. Thus if the criminal conviction
involved the same matter and the same issue as that
litigated before the Tribunal then it seems to me
that the Tribunal has not given any weight at all
to the criminal conviction but has reached its own
conclusion unaffected by it. In my view, this
constitutes an error of law requiring that the
appeal be allowed and the matter be remitted to the
Tribunal for reconsideration."
33. It was said that the issue in the criminal proceeding agitated again before the Tribunal was whether, at the relevant time, Mrs Ridley was living in a de facto relationship. As his Honour pointed out there was no evidence before the Tribunal of the details of the criminal charges and no attempt was made to put into evidence the transcript of those proceedings or the reasons and decision of the Court of Petty Sessions upon the material placed before it. His Honour acknowledged that those omissions were significant. However, his Honour considered that it was open to the Tribunal to conclude that the matters in issue in the criminal proceeding were identical with the matters in issue before the Tribunal. His Honour stated that that question was a matter of fact for the Tribunal to decide on the evidence before it. It appeared to be his Honour's conclusion that the Tribunal had made no finding on that issue. His Honour stated that if the Tribunal found that the issues before it and before the Court of Petty Sessions were identical then the Tribunal was bound to bear in mind the result of the criminal proceeding in forming its own decision.
34. We have considerable doubt as to whether there was sufficient material for the Tribunal to reach any finding as to identity of issues. In any event, with respect to his Honour, we are unable to agree that the reasons of the Tribunal demonstrate that it was unaware of the significance of the fact that Mrs Ridley had been convicted by another tribunal satisfied beyond reasonable doubt of the existence of facts essential to those convictions.
35. The entire review procedure of the Tribunal was conducted under the penumbra of the convictions. Although it was alleged as part of the Secretary's case before the Tribunal that Mrs Ridley had made relevant admissions "in connection with her criminal prosecution and imprisonment", that was denied by Mrs Ridley and no material was put before the Tribunal to support it. On the material before the Tribunal there does not appear to be any suggestion of a direct admission in relation to the claimed central issue. It was noted by the Tribunal she had maintained a consistent denial that she had ever been in a de facto relationship. The Tribunal stated that Mrs Ridley's case stood or fell on her credibility on that issue. Indeed, it went further and stated that her case depended on whether the Tribunal could "believe she was telling the truth in the witness box". The Tribunal would have been aware that the Court of Petty Sessions was satisfied beyond reasonable doubt that the facts essential to the establishment of guilt were proved by the material contained in various documents and that Mrs Ridley, as a witness in her trial, was unable to raise any reasonable doubt as to her guilt.
36. The Tribunal treated the same documents as quite damning and required Mrs Ridley to do more than raise a reasonable doubt. It required Mrs Ridley to satisfy the Tribunal that she was telling the truth. That was not a simple matter. As the Tribunal recorded, Mrs Ridley had substantial difficulty in achieving that end, being a person on her own confession who had made false statements to the Department in other respects. As the Tribunal stated it was "tempting to just disbelieve her denial out of hand".
37. It can be concluded from the foregoing that the Tribunal gave careful consideration to the performance of Mrs Ridley as a witness before deciding that she was convincing, consistent and credible and only reached that decision by giving close scrutiny to other evidence and testing the possibility of falsity in any of her explanations.
38. The Tribunal, constituted by an experienced Senior Member, would have been well aware of the approach taken by the Tribunal consisting of the President, a Deputy President and the same Senior Member in the earlier matter of Mariot in which the Tribunal stated that the exercise of going behind the fact of a conviction required the Tribunal to be extremely sensitive to the consequences of making a finding inconsistent with findings inherent in the conviction. It may be assumed that similar caution was exercised by the Tribunal in this matter.
39. In these circumstances we are unable to agree that the Tribunal's reasons demonstrate that the Tribunal gave no weight to the fact of conviction. Although the reasons do not isolate that aspect and expose directly the Tribunal's treatment of the convictions, it is apparent from the totality of the Tribunal's reasons that it acknowledged that at least some weight had to be given to the fact that Mrs Ridley stood before the Tribunal as a person convicted on charges which involved facts likely to be very pertinent to facts to be determined by the Tribunal. We cannot agree that the reasons of the Tribunal displayed an error of law in that regard.
40. His Honour acknowledged that the relevance of Mrs Ridley's convictions depended upon the finding by the Tribunal that the matters in issue in the criminal proceedings were the same as the matters in issue before the Tribunal. His Honour said that it was open on the evidence before the Tribunal for the Tribunal to conclude that there was an identical issue. But his Honour did not find that the Tribunal was bound to reach that conclusion and regarded it as clearly significant that evidence of the essential elements of that criminal proceeding was not before the Tribunal.
41. The Tribunal appeared to be unpersuaded by the evidence before it that the question could be answered one way or the other. If that had been the conclusion of the Tribunal it would have involved no error of law and it would not have been established that Mrs Ridley's convictions were facts to be taken into account and given weight by the Tribunal.
42. We note that in the review proceeding in Mariot conducted several months before the review in this matter, the Secretary was permitted to add a transcript of the trial in the criminal proceedings to the material placed before the Tribunal in that matter after the Tribunal had ruled that the fact of conviction was not conclusive. That course was not followed in this case.
43. His Honour found that by stating that it proposed to follow the previous decision of the Tribunal in Mariot, inter alia, the Tribunal had erred in law in failing to give reasons "in respect of the crucial matter of whether on the facts before it an inference could be drawn as to whether the issue involved in the present case was identical to that before the Court of Petty Sessions". This finding was in respect of a submission by counsel for the Secretary that the Tribunal had failed to give proper reasons for its decision in concluding that the convictions did not preclude Mrs Ridley from arguing that she was not in a de facto relationship with Mr Ridley. As we have noted earlier, his Honour found that the Tribunal was not in error in concluding that Mrs Ridley was not precluded by her convictions from seeking to establish by evidence that she had not been in a de facto relationship with Mr Ridley at the relevant time and his Honour accepted that the Tribunal's reference to Mariot provided adequate reasons for its conclusion in that regard.
44. The relevant part of the Tribunal's reasons considered by his Honour in reaching his finding that the Tribunal had provided inadequate reasons in respect of the finding as to identity of issue was a short passage under the heading "Jurisdiction". In that passage the Tribunal appeared to be responding to a submission that the issues before it had been determined conclusively by Mrs Ridley's convictions and the Tribunal had no capacity to undertake a fresh fact-finding exercise. In dealing with the submission the Tribunal referred to, inter alia, Mariot, the reasoning in which the Tribunal stated it proposed to follow to find that "jurisdiction" existed.
45. It is clear that the reasons of the Tribunal in Mariot the Tribunal proposed to follow in Mrs Ridley's case were those at pp 585-590 in which the Tribunal concluded that it was permitted to receive material which challenged essential facts on which convictions had been based, although any findings made upon evidence presented to the Tribunal should be made after the exercise of considerable care if those findings were necessarily inconsistent with findings inherent in the convictions.
46. We are unable to agree with his Honour that the Tribunal's reference to the reasons expounded in Mariot was intended to set out the Tribunal's entire reasoning process on the question of identity of issue.
47. As we have already stated, the reasons of the Tribunal must be read as a whole to distill how that question was dealt with by the Tribunal and when that is done no error of law is apparent in respect of adequacy of the reasons provided or otherwise.
48. His Honour rejected various other grounds of appeal but upheld a submission that the Tribunal had acted beyond power in directing the Secretary to calculate the benefits payable to Mrs Ridley in the light of the Tribunal's findings. His Honour understood that the entitlement referred to by the Tribunal was the entitlement to a pension in the period "in which the pension has been taken away from her" presumably between August 1987 and January 1988. If that had been the entitlement the Tribunal was directing the Secretary to consider, his Honour's finding would be clearly correct because no claim to such an entitlement was before the Tribunal for decision.
49. However, to understand what the Tribunal meant by its direction, it is necessary to identify the decisions reviewed by the Tribunal. As we have pointed out earlier in these reasons, the decision of the SSAT consisted of three elements, namely that overpayment of a pension had been correctly "raised", that recovery of the overpayment should not be waived, and that recovery of the overpayment should be effected by sequestration of the allowance payable to Mrs Ridley. The Tribunal noted that the SSAT had made those decisions. The Tribunal saw its task to put itself "in the shoes of the Secretary when it was decided to terminate her (Mrs Ridley's) pension and raise and recover an overpayment." It was unnecessary for the Tribunal to deal with the matter of waiver after it had determined that Mrs Ridley was entitled to the pension she had received in the relevant period. After the Tribunal determined that there was no overpaid pension to be repaid by Mrs Ridley, it followed that application of the allowance to the reduction of the claimed overpayment had not been the payment of the allowance to Mrs Ridley and that a calculation of the amount of the allowance to which Mrs Ridley was entitled and not paid to her would have to be carried out. We take it that the Tribunal meant no more than that in the terms of its direction.
50. Counsel for the Secretary submitted that the only decisions under review were the decisions to "raise and recover" an overpayment and to refuse to waive or write off the debt. It was said that the decision to apply the allowance in reduction of the overpayment was not a decision submitted for review.
51. The manner in which the several decisions came before the SSAT was not in issue and was, therefore, irrelevant but there is no doubt that the SSAT made the three decisions we have previously described which included the decision that recovery of the "overpayment" be effected by sequestration of the allowance. Once the Tribunal decided that the allowance should not have been withheld and applied as it was and that the decision implementing that action should be set aside it was within the Tribunal's power under sub-para.43(1)(c)(ii) of the AAT Act to direct that the Secretary calculate the amount of the allowance to which Mrs Ridley was entitled and that had not been paid to her.
# Re Denise Anne Ridley
Secretary, Department of Social Security \[1993\] FCA 213;
(1993) 113 ALR 655
(1993) 42 FCR 276
(1989) 91 ALR 293
(1991) 102 ALR 19
(1988) 23 FCR 472