Salah (formerly HGMZ) v Secretary, Department of Social Services

• Jurisdiction: Australia Federal only
• Judgment Date: 07 November 2022
• Neutral Citation: [2022] FCAFC 186
• Date: 07 November 2022
• Court: Full Federal Court (Australia)

Federal Court of Australia

Salah (formerly HGMZ) v Secretary, Department of Social Services [2022] FCAFC 186

Appeal from:	HGMZ v Secretary, Department of Social Services [2021] FCA 280
File number:	NSD 357 of 2021
Judgment of:	RARES, KATZMANN AND CHEESEMAN JJ
Date of judgment:	7 November 2022
Catchwords:	ADMINISTRATIVE LAW – appeal on question of law under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) – where appellant challenges Tribunal’s findings of fact – where recipient of social security benefits settled motor vehicle accident claim for compensation including claim for economic loss or loss of commercial opportunity – where benefit recipient disputed liability to repay lump sum to Commonwealth under s 17 and Pt 3.14 of the Social Security Act 1991 (Cth) – whether judgment sum included compensation for economic loss – whether ‘special circumstances’ under s 1184K(1) existed to reduce or eliminate liability to repay lump sum – where notice of appeal under s 44(1) failed to state any question of law – where grounds of appeal cavilled with Tribunal’s credibility-based findings of fact – where no error in primary judgment identified – Held: appeal dismissed
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 44 Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG Health and Other Services (Compensation) Act 1995 (Cth) s 33A Migration Act 1958 (Cth) s 91X Social Security Act 1991 (Cth) ss 17, 1184K, Pt 3.14 Federal Court Rules 2011
Cases cited:	Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 Coulton v Holcombe (1986) 162 CLR 1 ETA067 v Republic of Nauru (2018) 360 ALR 228 Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) [2022] FCAFC 160 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Secretary, Department of Family and Community Services v Chamberlain (2002) 116 FCR 348 Waterford v Commonwealth (1987) 163 CLR 54
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	47
Date of hearing:	7 November 2022
Counsel for the Appellant:	Mr A Strik
Solicitor for the Appellant:	Stewart Law
Solicitor for the Respondent:	Dr S Thompson of Sparke Helmore Lawyers

ORDERS

		NSD 357 of 2021
BETWEEN:	ELHAM SALAH Appellant
AND:	SECRETARY, DEPARTMENT OF SOCIAL SERVICES Respondent

order made by:	RARES, KATZMANN AND CHEESEMAN JJ
DATE OF ORDER:	7 NOVEMBER 2022

THE COURT ORDERS THAT:

1. The name “Elham Salah” be substituted as the name of the appellant.

2. In proceeding NSD612/2020, the name “Elham Salah” be substituted as the name of the applicant.

3. The appeal be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from the transcript)

RARES J:

1. This is an appeal from the orders of a judge of the Court dismissing an appeal from the decision of the Administrative Appeals Tribunal purporting to be on a question of law under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). On 27 April 2020, the Tribunal affirmed the decision of its Social Services and Child Support Division that, in turn, had affirmed a decision of a delegate of the respondent, the Secretary, Department of Social Services, in the Department’s capacity as Centrelink, that, under s 17 and Pt 3.14 of the Social Security Act 1991 (Cth), the appellant’s receipt of compensation as a result of a consent judgment for $135,000 in the District Court of New South Wales rendered her liable to repay to the Commonwealth a lump sum calculated as $31,142.86. The appellant had received a disability support pension since January 2008. The Tribunal was not satisfied that there were “special circumstances” within the meaning of s 1184K(1) of the Social Security Act to warrant the reduction or elimination of the appellant’s obligation to pay the lump sum. Section 1184K(1) provided:

1184K Secretary may disregard some payments

(1) For the purposes of this Part, the Secretary may treat the whole or part of a compensation payment as:

(a) not having been made; or

(b) not liable to be made;

if the Secretary thinks it is appropriate to do so in the special circumstances of the case.

2. The appellant had been involved in a number of motor vehicle accidents for which she had also received compensation, prior to the consent judgment in the District Court. The motor vehicle accident for which she obtained the consent judgment occurred on 16 May 2013 when a bus hit the appellant’s vehicle.

3. On 17 August 2017, the appellant personally signed the terms of the consent judgment which was a settlement of her claim for personal injury. That claim included that she had lost, as a result of the injury, the commercial opportunity to take up employment in the United Arab Emirates (UAE) at a salary of USD120,000 per annum.

4. The Social Security Act provided that a person was liable to repay a lump sum if he or she had been paid a pension and later received compensation for, among other matters, personal injury, in respect of loss of earnings or loss of earning capacity in respect of overlapping time periods, such as the appellant did when she received $135,000 as the judgment sum. Because the appellant was paid her pension during the period in which she claimed to have lost the opportunity to work in the UAE and she recovered the judgment sum in settlement of her claim for compensation in respect of that loss, she became liable to pay the lump sum to the Commonwealth as worked out in accordance with statutory formulae in the Social Security Act.

The Unjustified Pseudonym

5. The Court inquired of the parties before the hearing of the appeal as to the basis upon which the appellant could be entitled to a pseudonym, having regard that the provisions of ss 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) and the principle of open justice. The appellant had commenced the proceeding before the primary judge seeking an extension of time because she was late in filing through no substantive fault of her own. The application for an extension of time was intituled in her own name, but for reasons that do not appear on the Court file, she was assigned a pseudonym which remained both through the proceeding before the primary judge and until this morning in the appeal.

6. The parties could not explain how or why the appellant had the pseudonym. As a result, we ordered that the name of the appellant, Elham Salah, be substituted for the pseudonym both in this appeal and in the proceeding below for the reasons Rares, Perry and Hespe JJ gave in Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) [2022] FCAFC 160.

7. It is important to recognise that administrative proceedings are ordinarily private and do not attract public scrutiny. Administrative bodies may well be entitled to offer pseudonyms to persons who seek to pursue remedies, including those that the Tribunal may give. However, it does not appear that the appellant...