Case: Beadle, Re v Director-General of Social Security (1984) 6 ALD 1
Outcome: considered
The Tribunal member referred to a number of cases which have considered the meaning of 'special circumstances'. He referred to the decision of the Tribunal in Re Beadle v Director-General of Social Security (1984) 6 ALD 1 where it was said that the circumstances must be unusual, uncommon or exceptional, and the reasons for judgment of Kiefel J in Groth v Secretary, Department of Social Security (1995) 40 ALD 541 where her Honour referred to a circumstance taking the case out of the usual or ordinary case. The Tribunal member also referred to observations of the Full Court of this Court in Riddell v Secretary, Department of Social Security (1993) 30 ALD 31 and of French J in Secretary, Department of Social Security v Hales (supra). I will discuss the relevant authorities later in these reasons. 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.'