Case: Ryde v Secretary, Department of Family and Community Services [2005] FCA 866
Outcome: considered
The applicant's first submission is that the Tribunal member applied too stringent a test as to what might constitute special circumstances within s 1237AAD(b). He submits that the Tribunal member said that to constitute special circumstances the circumstances must be 'unusual uncommon and exceptional'. The applicant submits that that was the test formulated by the Tribunal in Re Beadle and Director-General of Social Security (supra) but it was not the test approved on appeal by the Full Court of this Court: Beadle v Director-General of Social Security (1985) 60 ALR 225. Nor, submits the applicant, is the test consistent with other authority of this Court including Dranichnikov v Centrelink (2003) 53 ATR 270 and Ryde v Secretary, Department of Family and Community Services [2005] FCA 866. The applicant submits that the correct test as to what constitutes special circumstances is whether the circumstances take the case out of the ordinary. 32 In Ryde v Secretary, Department of Family and Community Services (supra) Branson J considered the provisions of s 1237AAD and in particular whether the Tribunal in that case had erred in concluding that special circumstances meant circumstances which were 'unusual, uncommon or exceptional'. Her Honour referred to the first passage from the reasons for judgment of the Full Court in Beadle set out in [28] above. She also referred to the following passage in Jess v Scott (1986) 12 FCR 187 (at 195): 'What is needed to justify an extension of time is indicated in r 15(2) by the words "for special reasons". It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this.' Although those observations were made in the context of the expression 'for special reasons' in the rules of Court, her Honour considered they were of assistance in the interpretation of the expression 'special circumstances'. Her Honour then said (at [25] and [26]): In my view, the Tribunal probably overstated the significance of the requirement in s 1237AAD(b) for " special circumstances ". The Full Court in Beadle did not endorse the view expressed by the Tribunal in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3 that circumstances are special only if they are " unusual, uncommon or exceptional" . However, the Tribunal concluded that the applicant's circumstances " do not differ from those of many income support recipients" . In the context in which the Tribunal reached this conclusion, it is to be understood as having made a judgment that neither hardship nor unfairness made it desirable to waive all or part of the applicant's debt because the applicant's circumstances were common-place rather than special. While, as French J pointed out in Hales , the evident purpose of s 1237AAD is to enable a flexible response to the wide range of circumstances which could give rise to hardship or unfairness, the statutory requirement for " special circumstances " discloses an intention to proscribe waiver in ordinary cases. The hardship or unfairness to which French J referred must be understood to be hardship or unfairness sufficient to justify departure from the general rule in the particular case.' 34 It is true that in expressing his conclusions the Tribunal member said that there was nothing unusual, uncommon or exceptional about the applicant's case. However, his reasons must be read as a whole and when that is done I do not think that he applied too demanding a test. The first point to note is that contrary to the applicant's submission he did not apply a test of 'unusual, uncommon and exceptional' as distinct from 'unusual, uncommon or exceptional' as submitted by the applicant. Secondly, he referred to the following remarks of Kiefel J in Groth v Secretary, Department of Social Security (supra) as to the meaning of the phrase 'special circumstances': '... would require something to distinguish Mr Groth's case from others, to take it out of the usual or ordinary case. ... It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary. ...'