Case: Secretary, Department of Social Security v Hales (1998) 82 FCR 154
Outcome: followed
French J (as he then was) in Secretary, Department of Social Security v Hales (1998) 82 FCR 154 ( Hales ) noted, at 161: Beadle v Director-General of Social Security (1985) 60 ALR 225 [Beadle] is a decision of the Full Court of the Federal Court on appeal from Toohey J sitting as a presidential member of the Tribunal: see Re Beadle and Director-General of Social Security (1984) 6 ALD 1. The case concerned a claim for family allowance lodged more than six months after the eligibility date. In such a case payment could be backdated only in "special circumstances" (s 102 of the Social Security Act 1947 (Cth)). Even within the narrow confine of "special circumstances" which would support a discretion to overlook the delay, the Court said it "[did] not think it is possible to lay down precise limits or precise rules". The phrase, although lacking precision, was in the Court's view, "sufficiently understood ... not to require judicial gloss": Beadle v Director-General of Social Security at 228. His Honour continued at 162: The concept of special circumstances is broad. A constellation of factors, including financial circumstances, may fall within it. The express exclusion of financial hardship alone as a special circumstance is an indicator that it would otherwise be included. This gives some measure of the range of circumstances which will qualify as special. But as a matter of grammar and ordinary logic, the exclusion of financial hardship alone as a special circumstance does not mandate its inclusion in the range of matters constituting such circumstances for the purpose of enlivening the Secretary's discretion. ... The evident purpose of s 1237AAD is to enable a flexible response to the wide range of situations which could give rise to hardship or unfairness in the event of a rigid application of a requirement for recovery of debt. It is inappropriate to constrain that flexibility by imposing a narrow or artificial construction upon the words. It may be that there will be few cases in which the Secretary will be satisfied that there are special circumstances in the absence of financial hardship. It may be that there are few cases in which having found special circumstances to exist, the Secretary would exercise the discretion to waive in the absence of financial hardship. But to anticipate the limits of the categories of possible cases by imposing on the language of the section a fetter upon its application which is not mandated by its words, is to erode its useful purpose. (Emphasis added). 78 Further, the respondent argues that the discussion in paragraph [41] of French J's judgment regarding decisions involving discretion is not relevant. This is because the existence or otherwise of special circumstances is a question of fact; the issue of discretion does not arise. Such an argument finds support in French J's statement in Hales that (at 162) " [The discretion to waive] is only enlivened when the Secretary is satisfied that the three conditions specified in (a), (b) and (c) of the section are met. " It is argued that the Tribunal set out the principle, set out the materials before it, and then by its comment that the appellant's circumstances were not outside of the ordinary run of cases, and were not so special as to justify waiver, reached a factual conclusion sufficient to discharge its obligations. 79 The Tribunal set out at paragraph [17] of its reasons the basic findings of fact from which the decision proceeded. Those findings related primarily to the debts owed, the appellant's physical and mental state, correspondence and other contact between the appellant and Centrelink, and the appellant's financial situation. 80 The Tribunal then moved to a consideration of the authorities as they relate to the phrase "special circumstances". In particular, the cases on the use of the phrase "unusual, uncommon or exceptional" were examined, along with other paraphrases used to aid interpretation of what can be "special circumstances". The Tribunal concluded by saying that such paraphrases "... cannot supplant the statutory language" (at [38]) and that "... the clear and ordinary meaning of the words "special circumstances" is the meaning that should be assigned to them." (at [39]).