[1991] FCA 306; (1991) 25 ALD 40

Administrative Law - First Home Owners Act 1983 - finding by the Administrative Appeals Tribunal that recipient of assistance had never resided and did not intend to reside in dwelling - validity of finding - whether such person can be a prescribed person having regard to object of Act - whether assistance paid can be recovered under s.37(6A).

First Home Owners Act 1983

Administrative Appeals Tribunal Act 1975

Solicitors for respondent: Australian Government Solicitor

The appeal is dismissed with costs and the order of the Administrative Appeals Tribunal of 16 October 1990 is affirmed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

This is an appeal by Tania Theologidis, filed on 15 November 1990, from a decision of the Administrative Appeals Tribunal, constituted by Mr D.W. Muller, Senior Member, Dr W.A. de Maria and Captain E.T. Keane, given on 16 October 1990, whereby the Tribunal directed that for the purposes of the First Home Owners Act 1983 ("the Act") Tania Theologidis was to be deemed not to be a "prescribed person" in relation to the dwelling situated at 16 Pikett Street, Clontarf. In its reasons, the Tribunal concluded:

"Tania Theologidis has received $3,200 to which she was not entitled.

The said sum of $3,200 is a debt owing to the Commonwealth".

2. In the original notice of appeal, the applicant stated:

"THE QUESTIONS OF LAW raised on the appeal are :

Interpretation of and Implementation of the FIRST HOME

OWNERS ACT 1983.

3. ORDERS SOUGHT :a) The above mentioned decision of

the Administrative Appeals

Tribunal to be set aside

b) The Applicant to be allowed the

status of PRESCRIBED PERSON, as

specified by the said Act.

or c) The Applicant be relieved from

reimbursing any moneys to the

Respondent.

4. GROUNDS : The Applicant did conform with the FIRST

HOME OWNERS ACT 1983.

The Applicant did reside at the premises

concerned as her principal place of residence.

The Applicant's intention is and has been

as per Section 5 of the said Act to reside

at 16 Pikett Street, Clontarf as her

principal place of residence, and this was

never disputed by the Respondent."

3. Subsequent to a directions hearing on 10 December 1990, the applicant filed a further document on 8 January 1991 headed "FURTHER TO THE NOTICE OF APPEAL". There, a number of grounds and orders sought are set out as follows:

" GROUNDS :

1. The Tribunal wrongfully rejected evidence produced and

tendered by the Appellant;

2. The Tribunal erred in law in that it failed to

attribute full or any weight to the whole of the

evidence before it;

3. The Tribunal misdirected itself on the evidence before it;

4. The Tribunal erred in law in that it applied section 5

of the First Home Owners Act 1983 as amended to the Appellant

5. The Tribunal's decision contradicts legal precedents.

ORDERS SOUGHT

1. That the decision of the Administrative Appeals

Tribunal given on the 16th October 1990 be reversed;

2. That the Appellant be declared a prescribed person

within the meaning of the First Home Owners Act 1983

as amended, and in particular section 14(1).

3. A declaration that the Appellant is not a person to

whom section 5 of the First Home Owners Act 1983 as

amended applies;

4. Costs plus interest."

4. The directions made by the Administrative Appeals Tribunal and which are appealed against, appear at paragraphs 12 and 13 of the Tribunal's Reasons for Decision:

" 12. The Tribunal, in its discretion, directs that, for the

purposes of the First Home Owners Act 1983 Tania

Theologidis is to be deemed not to be a prescribed

person in relation to the dwelling situated at 16

Pikett Street, Clontarf.

13. Tania Theologidis has received $3,200 to which she was

not entitled. The said sum of $3,200 is a debt owing

to the Commonwealth. "

5. The decision before the Administrative Appeals Tribunal for review was that of a delegate of the Secretary, Department of Community Services and Health made on 8 August 1989, which confirmed earlier decisions made on 20 May 1987 to suspend subsidy payments and to recover moneys paid to the applicant pursuant to the First Home Owner's Act 1983.

6. The vendor of the house at 16 Pikett Street was the applicant's father, Mr Sol Theo. The date for completion of the contract was 19 December 1984; the transfer was lodged on 11 January 1985 and the applicant became the registered proprietor of the property on 25 February 1985.

7. By an application dated 4 January 1985 the applicant sought assistance under the Act with respect to the house at Pikett Street.

8. The application for assistance was approved and the applicant received an initial lump sum payment followed by monthly payments until April 1986. The applicant received a total amount of $3,200.00 by way of assistance.

9. In Item 34 of the application form, the applicant indicated that she did not already occupy the house, but made no response to the question: "About when do you intend to move into the home as your principal place of residence?" A letter dated 5 February 1985 was written to the applicant by the delegate of the Secretary, asking in part:

"If you have not lodged a tax return for 1983/84 would you

please complete the attached taxable income information form

and return it to this office as soon as possible.

Would you please advise the date on which you intend to

occupy the home as your principal place of residence."

10. The letter was returned to the Department of Housing and Construction with the words "nil tax inc." written in the margin against the paragraph seeking advice about taxable income and with the words "1-2 month approx." written in the margin against the paragraph dealing with the date on which she intended to occupy the home as her principal place of residence.

11. The taxable income information form had the words "nil" written against the sections for gross salary, wages and other income, the section for allowances and employee benefits, the section for payments on retirement or termination of employment and the section for interest and dividends. Nothing was said of deductions and the taxable income was shown also as "nil". That form appears to have been signed in February 1985 by the applicant.

12. On 18 April 1986, the Department wrote to the applicant:

"I refer to your grant under the above Scheme in respect of a

property at 16 Pikett Street, Clontarf. It has come to the

attention of the Department that you are not residing in

this home.

I must point out that the First Home Owners Scheme monthly

subsidy is payable subject to continuity of ownership and

occupancy, as your principal place of residence, the home on

which you qualified for assistance.

Would you please advise:-

1. Have you ever taken up occupancy of the home? If so,

please advise the dates you resided there, the reason

you left the home and whether you will re-occupy the

home at a future date.

If possible, please support this information by

documentary evidence, such as electricity account,

telephone account, electoral roll card etc., which

would verify your occupation of the home.

2. If you have never taken up occupancy, please advise

the reason why.

Your monthly subsidy payments have been suspended pending

receipt of the above information. Your reply within 14 days

of receipt of this letter would be appreciated."

13. In a letter dated 2 May 1986, the applicant wrote:

"I am replying to your letter dated 18th April 1986 addressed

to my parents' address. I find the first paragraph of your

letter to be extremely offensive. However, I have enclosed

some photocopies which I hope will satisfy your curiosity."

14. The applicant enclosed a document from the State Electoral Office dated 24 April 1986 addressed "TO WHOM IT MAY CONCERN" stating:

"This is to certify that the bearer Tania Theologidis is at

present enrolled on the Queensland State Electoral Roll as

Tania Theo for the address 16 Pikett Street, Clontarf. Miss

Theologidis has been enrolled accordingly since 14 October 1985"

15. The applicant also enclosed a document on the letterhead of the Australian Electoral Commission, also dated 24 April 1986, and again addressed "TO WHOM IT MAY CONCERN", the text of which read:

"This is to certify that the bearer Tania Theo of 16 Pikett

Street, Clontarf has been on the Commonwealth Electoral Roll

for the Division of Petrie since October 1985."

On 14 May 1986, the Department wrote seeking advice from the applicant to be completed on an attached statutory declaration form. The advice sought was:

"1. The date that you commenced residency at 16 Pikett

Street, Clontarf.

2. Your current residential address."

"Your subsidy payments will remain suspended until a reply to

the above is received."

16. On 27 July, the applicant sought reinstatement of assistance repayments and on 5 August 1986 the Department indicated:

"You have provided copies of letters from the Electoral

Office confirming your enrolment on the electoral roll but

these are insufficient for our purposes.

In order to establish your continued entitlements would you

please complete and return the attached statutory

declaration. Please advise the date that you commenced

residency at 16 Pikett Street, Clontarf and your current

residential address."

17. On 20 May 1987, the Department indicated that the moneys paid to her were required to be repaid. The applicant sought review of the decision to suspend her subsidy payments and to seek to recover from her the whole of the assistance paid to her under the Act. The delegate of the Secretary to the Department of Community Services and Health reconsidered all decisions made in relation to the applicant's application and he said in a letter dated 8 August 1987:

"I am completely satisfied that I should affirm the original

decision."

"i) You have not occupied, and do not intend within a

reasonable time to occupy, the dwelling at 16 Pikett

Street, Clontarf as your principal place of residence;

ii) you are a person to whom section 5 of the Act, at my

direction, deems to have never been a prescribed

person under the Act - which direction I have formally

made;

iii) as a consequence of being a person against whom a

direction under section 5 is in force, you are not a

person to whom section 14(1) of the Act applies;

iv) because section 14(1) does not apply to you, you are

not a 'prescribed person' for the purposes of the Act,

and you are not, therefore, a person who may make

application for assistance under section 15 of the

Act;

v) because you are not entitled to apply for assistance,

but have in fact been paid assistance, the assistance

so paid to you is, pursuant to section 37, an amount

overpaid;

vi) the circumstances surrounding the overpayment are such

that I have declined to execise my discretions under

sections 37 or 37A, thereby rendering the overpayment

recoverable in full and payable forthwith."

18. That decision was the subject of the appeal to the Tribunal.

19. The applicant appeared on her own behalf on this appeal, although her father sat beside her and she consulted with him frequently. In the circumstances, I regard it as appropriate to address each of the perceived complaints without a nice enquiry as to the relationship and relevance of these complaints to the ultimate decision.

20. With respect to the first ground of the document "Further to the Notice of Appeal", the applicant submitted that the wrongfully rejected evidence consisted of three documents. The first of these documents was described by Mr Theo, the applicant's representative at the Tribunal hearing, as "a summons or a subpoena and the bailiff's report". However, the document tendered to this Court as the wrongfully rejected evidence consisted only of a bailiff's report, being a letter from J. Mitchell, Registrar of the Magistrates Court at Redcliffe to Tania Theo.

21. That document was rejected by the Tribunal as irrelevant. Mr Theo had sought to tender the document to impugn the credibility of the evidence of Mrs Milburn, a witness called by the respondent. The Tribunal indicated that Mrs Milburn had not given any evidence which was capable of being contradicted by the document.

22. In my opinion, the bailiff's report was not relevant to any issue in question before the Tribunal, and the Tribunal was not in error in rejecting the tender.

23. The appellant also complains that the Tribunal rejected a statutory declaration of one Carl O'Keefe deposing that Tania Theo had resided at 16 Pikett St., Clontarf. It appears that that document was in fact the subject of some discussion by the Tribunal, and was marked Exhibit 13 in the hearing before the Tribunal. The transcript shows that the presiding Senior Member indicated his view that evidence by that form was not acceptable evidence, but he received it as part of the record, saying "It will be Exhibit 13, but it will be accorded very little weight".

24. The third document which the appellant submits should have been accepted into evidence by the Tribunal is a letter from the Australian Federal Police to the Assistant Director, Management Services, Department of Housing and Construction, dated 9 September 1987. That letter states that investigations were carried out by the Australian Federal Police and that no offence could be identified. The letter further indicates that inquiries had been made of the Australian Taxation Office and states the results of interviews with Andrew and Tania Theologidis and Sol Theo. The letter concludes that there is insufficient evidence for prosecution and that no further action would be taken by the police.

25. The Tribunal is not bound by the rules of evidence (section 33(1)(c) of the Administrative Appeals Tribunal Act). Notwithstanding that the document would not have been admissible according to the rules of evidence, it would have been competent for the Tribunal to receive it. However, having regard to the nature of the document and the issues it addressed, its probative value on the issues of concern to the Tribunal was such that the Tribunal was not obliged to accept it.

26. The second ground of appeal, as argued, alleged that the Tribunal failed to attribute sufficient or any weight to that evidence before it which was favourable to the applicant.

27. Particular reference was made to the documents from the Australian Electoral Commission and from the State Electoral Office, earlier referred to, and to evidence that the applicant in October 1989 had received correspondence addressed to her at the Pikett Street address in connection with two job applications.

28. The Tribunal received a formidable amount of evidence which conflicted with the evidence given by the applicant and which indicated that the applicant did not reside at 16 Pikett Street, Clontarf at any time. Such evidence included testimony from former residents of the house and neighbours, as well as documentary evidence, such as income tax returns.

29. The Tribunal concluded that it accepted the evidence of the respondent's witnesses where that evidence conflicted with the evidence of the applicant. The Tribunal referred to the electoral roll evidence in its Reasons for Decision. There is nothing to suggest that it did not have regard to all the evidence in reaching its conclusions. The Tribunal rejected the evidence of the applicant, in the strongest language, saying:

"It is the Tribunal's belief that on the important issue as

to whether or not she ever occupied 'the house' or ever

intended to occupy, the applicant told the Tribunal a pack

of downright lies. "

"The Tribunal is satisfied beyond all reasonable doubt that Tania

Theologidis has never resided at 16 Pikett Street, Clontarf. The

Tribunal is further satisfied that Tania Theologidis has never formed

any intention to reside at 16 Pikett Street, Clontarf".

30. The task of weighing the conflicting evidence, particularly when the credit of witnesses loomed so large, is one for the Tribunal, and no legal error has been shown in the way the Tribunal approached the evidence. The conclusions to which it arrived were well and truly open to it on evidence before it.

31. Nothing appears in relation to the third ground which is not covered by my findings concerning the second ground of complaint.

32. The fourth ground of the Notice of Appeal is ambiguous. As I understand the applicant, she contends that section 5 of the Act should not have been applied to her at all; alternatively, if section 5 were to apply, it was necessary to apply section 5 as it stood prior to the 1988 amendment. The appellant's submissions on this second aspect were that there was a discretion available to the Secretary, and therefore to the Tribunal, which should have been exercised in her favour.

33. The fifth ground of appeal is related to the question of whether section 5 of the Act should have been applied to the appellant at all. I take the fifth ground to assert that the reasoning of the Tribunal in Andrew Theologidis v Department of Commmunity Services and Health (7 December 1990) and Pagram v The Secretary, Department of Community Services and Health (26 August 1988) should have been adopted by the Tribunal in this case.

34. It is necessary to set out some of the relevant legislation.

35. By section 3, the object of the Act is: "to encourage and assist persons to purchase or build their own homes, and, in the construction and the administration of this Act, regard shall be had to that object."

36. Section 4 defines a "prescribed person" in relation to a dwelling as:

"a person who is a prescribed person in relation to that

dwelling by virtue of sub-section 14(1), other than a person

in respect of whom a direction under section 5 is in force

in relation to that dwelling."

37. Section 5 of the Act prior to amendment in 1988 provided:

"Where a person is a prescribed person in relation to a

dwelling, and the Secretary is satisfied that the person has

not resided in the dwelling as his principal place of

residence and does not intend so to reside within a

reasonable time, the Secretary may, in his discretion,

direct that, for the purposes of this Act, the person shall

be deemed not to be a prescribed person in relation to the

dwelling."

38. By an amendment of 26 December 1988, the word "shall" replaced the words "may, in his discretion".

39. In the course of the hearing, the appellant submitted that section 5 as amended was applied to the appellant when the Tribunal should have applied section 5 in its unamended form. The Tribunal did in fact apply section 5 in its unamended form. By the amendment, the Secretary's discretion to direct that a person is deemed not to be a prescribed person was removed. While the Tribunal referred in its reasons to a decision by the delegate of 20 May 1987, the application for review to the Tribunal identifies the decision of 8 August 1989 as the decision of which review was sought. Neither the decision maker on 8 August 1989 nor the Tribunal possessed the discretion which the earlier section 5 conferred. That the Tribunal considered the exercise of that discretion and decided it adversely to the applicant does not, however, assist her in this appeal.

40. Section 14 then sets out the requirements for a person to be a prescribed person:

"14(1) Where, on or after 1 October, 1983, a person (in this

section referred to as the 'home acquirer') has, or 2 or

more persons (in this section referred to as the 'home

acquirers') together have-

(a) entered into a contract for the purchase of a dwelling

situated in Australia;

(b) ...

(c) ...

and the Secretary is satisfied that the home acquirer is or

will be, or the home acquirers are or will be, as the case

may, be entitled to an exclusive right of occupancy of the

dwelling

then, subject to section 5-

(d) the home acquirer or each of the home acquirers, as

the case may be;

(e) ...

(f) ...

is, for the purposes of the Act, a prescribed person in

relation to the dwelling.

(2) Where a person is a prescribed person in relation to

the dwelling and-

(a) the Secretary is satisfied that neither a grant under

a prescribed Act nor a payment of assistance under

this Act has been made to the prescribed person,

either alone or jointly with another person; and

(b) Before the date of the contract, or the date on which

the construction commenced, as the case may be, the

prescribed person-

(i) had not owned a dwelling in Australia; and

(ii) had not been a party to a contract (other than a

contract that was discharged, otherwise trhan by

performance of the contract, before the

expiration of 3 months after it was entered

into) for the purchase of another dwelling,

being a contract that provided for payment of

the whole or part of the purchase price by

instalments,

either alone or together with another person or other

the prescribed person is, for the purpose of section 15, a

person to whom this sub-section applies."

41. Section 15(1) permits a prescribed person to make an application for assistance in accordance with section 15(2).

42. Section 16 then allows the Secretary to pay, on behalf of the Commonwealth, financial assistance to an applicant pursuant to the Act.

43. Section 37 deals with the recovery of moneys overpaid to applicants:

"37.(1) Where an amount of assistance has been paid to an

applicant or applicants and the whole or part of the amount

should not have been paid, the whole, or that part, as the

case may be, of the amount is referred to in this section as

an amount overpaid, and the succeeding provisions of this

section apply.

(2) ...

(3) So much of the amount overpaid as exceeds the total

amount (if any) of further assistance payable, but not paid,

to the applicant or applicants is a debt due to the

Commonwealth by the applicant, or by the applicants jointly

and severally, as the case may be, and may at any time be

sued for and recovered in a court of competent jurisdiction

by the Secretary suing in his or her official name.

(4) ...

(5) ...

(6) ...

(6A) Without limiting the generality of subsection (1), where:

(a) an amount of assistance has been paid to a person or

persons in respect of a dwelling; and

(b) that person, or at least one of those persons, as the

case may be, ceases to be a prescribed person in

relation to the dwelling because of a direction under

section 5;

then, for the purposes of this section, the amount of

assistance (whether paid before or after the commencement of

this subsection) shall be treated as if it should not have

been paid to that person or those persons, as the case may be.

(7) ...

(8) ...

(9) ..."

44. In seeking the overturning of the Tribunal's decision, the appellant adopts the reasoning of the Tribunal in Andrew Theologidis v Department of Community Services and Health. The Tribunal's rationale in that case is set out in paragraph 62 of its Reasons for Decision:

"The words of section 5 do not give any indication that a

direction may be given after an application has been granted

to give assistance. The scheme of assistance under the Act

clearly contemplates that assistance may be paid to persons

who do not reside in the dwelling and who do not have the

necessary intention but provides for the termination of

payment by providing that they are no longer eligible

persons. Once a person becomes a prescribed person, he or

she is entitled to make an application. It would take clear

legislative expression before we could form the view that

Parliament intended to take away that entitlement

retrospectively. There is no such clear expression here and

the scheme of the legislation militates against any such

interpretation. It seems to us that a direction may only be

made at the time the application for assistance is made and

the person's entitlement to make that application is

determined."

45. The question arises, having regard to the view of the Tribunal in Andrew Theologidis' case, as to what is the effect of section 5. That question, it seems to me, is not a question of restrospective operation of a statute, but more particularly what is the effect of a section 5 direction in relation to a person to whom assistance under the Act has been paid.

46. The words of a statute are presumed not to have a retrospective effect. In Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, Dixon C.J. said, at 267:

"The general rule of the common law is that a statute

changing the law ought not, unless the intention appears

with reasonable certainty, to be understood as applying to

facts or events that have already occurred in such a way as

to confer or impose or otherwise affect rights or

liabilities which the law had defined by reference to the

past events."

47. The presumption against retrospectivity can be rebutted by either a direct statement in the legislation or by necessary intendment. The meaning of the words "necessary intendment" were considered in Worrall v The Commercial Banking Company of Sydney Ltd. [1917] HCA 67; (1917) 24 CLR 28, where the Court said, at 32:

"Necessary intendment only means that the force of the

language in its surroundings carries such strength of

impression in one direction, that to entertain the opposite

view appears wholly unreasonable."

48. The Act is to be construed with regard to the object of the Act, being to encourage and assist persons to purchase or build their own homes. The use of the word "homes" indicates that occupation by a person for whom the dwelling is that person's principal place of residence is central to the purpose of the Act. This is reinforced by the repeated use of the phrase "home acquirers" in section 14. In my opinion, a person who has entered into a contract for the purchase or construction of a dwelling or who commences to build a dwelling, but who does not have an intention to occupy the dwelling as his principal place of residence (i.e. as his "home"), is not a prescribed person for the purposes of the Act.

49. The effect of section 14(2) is to limit assistance to such prescribed persons who have not previously owned a dwelling and who have not previously been the recipient of assistance under the Act. Such persons may apply in the prescribed way for assistance: section 15. In the ordinary course, such an application will be in writing, signed by the prescribed person or persons and furnished to the Secretary.

50. In this case, by a letter on 20 May 1987, a delegate of the Secretary of the Department, John Hamilton, wrote to the applicant directing that the applicant was not a prescribed person pursuant to section 5 of the Act and seeking recovery of $3,200 paid as assistance. On 23 May, the applicant appealed from "your resolution". This was treated by the Department as a request under section 27(2) of the Act to reconsider that decision and, as earlier indicated, by letter on 8 August 1989, Peter Smart, as the delegate of the Secretary to the Department of Community Services "formally determined" that the applicant was "a person to whom section 5 of the Act at my direction deems (sic) to have never been a prescribed person under the Act - which direction I have formally made". As at the time of that direction, the applicant "is to be deemed not to be a prescribed person in relation to the dwelling".

51. Section 37(1) applies where an amount of assistance has been paid to an applicant and "the whole or part of the amount should not have been paid". The terms of section 37(6A) make it plain that where a person ceases to be a prescribed person in relation to the dwelling because of a direction under section 5 (which is the case with the applicant, on the determination of the delegate of the Secretary communicated to the applicant in the letter of 8 August 1989) then, for the purposes of section 37 "the amount of assistance (whether paid before or after the commencement of this sub-section) shall be treated as if it should not have been paid to that person ..." Sub-section 6A commenced on 26 December 1988.

52. Contrary to the view of the Tribunal in Andrew Theologidis v The Secretary of the Department of Community Services, in my opinion section 5 is to be construed prospectively. The recovery of past assistance is resolved, however, by the application of the plain words of sub-section 37(6A).

53. The Tribunal in Andrew Theologidis' case found "the scheme of assistance under that Act clearly contemplates that assistance may be paid to persons who do not reside in the dwelling and who do not have the necessary intention ...". I have earlier expressed my reasons for my opinion that an intention to reside in the dwelling as the principal place of residence is a necessary requirement of being a prescribed person.

54. It follows from what I have said that the Tribunal in this case was entitled to apply section 5 to the appellant. The moneys paid to the appellant are recoverable by the Commonwealth pursuant to section 37(3).