Case: Beadle v Director-General of Social Security (1985) 60 ALR 225
Outcome: cited
On my reading of the judgment of Mansfield J in Devriadis v Secretary, Department of Family and Community Services (2000) 62 ALD 145 , his Honour assumed that an unclaimed entitlement to a benefit was relevant to the consideration of special circumstances. However, it was unnecessary for his Honour to decide the point, because of a factual finding that the appellant could not in fact have been entitled to the benefit claimed. Mansfield J, at 159-160, said: I have also considered whether the tribunal may have erred in failing to consider as a possible special circumstance that the applicant may have been entitled to some level of benefit under the 1947 Act or the 1991 Act during the relevant period, even if he had made full disclosure to the respondent. I do not consider that it erred in law in that regard. The tribunal has determined that the applicant should not be treated as unemployed under s 116(4) of the 1947 Act, or under s 516(1) or 595(1) of the 1991 Act. Those provisions are directed to enabling a period of employment as being treated as a period of unemployment, having regard to the nature of the work, its duration, and other matters relating to the work. The tribunal decided that the work the applicant did for Zorba during the relevant period was such that it should make an order under any of those provisions. Consequently, the criterion of being unemployed upon which eligibility for benefits depended has been found by the tribunal not to exist. The tribunal is not shown to have erred in its understanding of the expression "special circumstances": see the discussion as to the meaning of that term in Condren v Department of Family and Community Services [2000] FCA 268 , BC20000890 per Lehane J at [11]; Kertland v Department of Family and Community Services [1999] FCA 1596 ; (1999) 57 ALD 600 per Merkel J at [30-45]; Beadle v Director-General of Social Security (1985) 7 ALD 670 ; 60 ALR 225 at 228-30. 52 The point made by the Tribunal in the last sentence of the paragraph quoted in [37] above is an important one, and draws attention back to the language of the section in question; that is, that "special circumstances" must be shown. 53 That phrase, as has been noted in a number of decisions of this Court, is broad. 54 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).