Case: Beadle v Director-General of Social Security (1985) 60 ALR 225
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. 26 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. 29 In Dranichnikov v Centrelink (supra) the Full Court, in considering a similar statutory provision to s 1237AAB said (at [65] and [66]): '65. The decision maker clearly also determined that the circumstances were such that they were not exceptional or unusual so that waiver could not be made as a matter of discretion under s 101. That equates "special circumstances", as that expression is used in the Administration Act with either exceptional circumstances or unusual circumstances. The origin of the test apparently adopted by the Secretary appears to be the decision of the first instance Judge in Beadle v Directory-General of Social Security (1985) 60 ALR 225. That was a decision under previous legislation, the history of which is referred to by French J in Secretary of Department of Social Security v Hales (1998) 82 FCR 154. The Full Court in Beadle comprising Bowen CJ, Fisher and Lockhart JJ, however, was of the view that it was not possible to lay down precise rules as to what constituted special circumstances under the then s 102(1)(a) of the Social Security Act 1947 (Cth). Their Honours point out that the question whether there were special circumstances was one for the decision maker (in that case the Director-General) bearing in mind the purpose for which the power was given. The reference to the first instance decision from which the words "unusual, uncommon or exceptional" come was not actually affirmed by the Full Court. 66. To some extent the question whether there were special circumstances must depend on how it came about that the error occurred. Again that is not a matter to which the decision maker apparently averted. Other cases which have considered analogous words such as "special reasons" has tended to conclude, albeit in different contexts, that what is required will be circumstances which distinguish the case in consideration from the usual case. There will be a requirement that the circumstances are such that takes the case out of the ordinary: Jess v Scott (1986) 12 FCR 187 and the cases in various contexts in the decision which Lockhart, Shepherd and Burchett JJ discuss.'