Sesalim v Secretary, Department of Social Services (No 2) [2018] FCA 1401

Sesalim v Secretary, Department of Social Services (No 2) [2018] FCA 1401

The Court declined to make findings of fact under s 44(7) because rating Mr Sesalim's PTSD under Table 5 required complex evaluative judgments rather than simple fact finding, and that task was best left to the Tribunal. The Court remitted the matter for redetermination without excluding pension eligibility, because that was the core issue on remittal. Given concerns noted in the earlier reasons about adverse credit findings, the remittal was to a differently constituted Tribunal. Costs were ordered in Mr Sesalim's favour because he succeeded and no sufficient reason was shown to depart from costs following the event.

Jurisdiction
Australia
Judgment Date
11 September 2018
Procedural Posture
Administrative Law Appeal From the Administrative Appeals Tribunal / Determined on the Papers After Earlier Reasons; Further Orders as to S 44(7) Findings, Remittal and Costs
Outcome
VID 1297 of 2016 appeal allowed, Tribunal decision set aside and matter remitted for redetermination by another member of the Administrative Appeals Tribunal; VID 166 of 2017 appeal had been dismissed and costs were ordered in favour of Mr Sesalim.
Legal Topics
['administrative Appeals Tribunal Appeals' 'administrative Appeals Tribunal Act 1976 (cth), S 44(7)' 'remittal to Tribunal' 'disability Support Pension' 'costs Follow the Event']
['administrative Law' 'costs' 'social Security'] ['administrative Appeals Tribunal Appeals' 'administrative Appeals Tribunal Act 1976 (cth), S 44(7)' 'remittal to Tribunal' 'disability Support Pension' 'costs Follow the Event']

Case Brief

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Procedural Posture

Administrative Law Appeal From the Administrative Appeals Tribunal / Determined on the Papers After Earlier Reasons; Further Orders as to S 44(7) Findings, Remittal and Costs

Legal Issues

  1. 1 ["Whether the Court should make further findings of fact under s 44(7) of the Administrative Appeals Tribunal Act 1976 (Cth) and determine Mr Sesalim's entitlement to a Disability Support Pension for the relevant period." 'Whether the matter should be remitted to the Administrative Appeals Tribunal for redetermination.' 'Whether any limitation should be imposed on the scope of the remittal, including excluding eligibility for the pension from consideration.' 'Whether the remitted matter should be dealt with by a differently constituted Tribunal.' 'Who should pay the costs of the appeals.']

Ratio Decidendi

The Court declined to make findings of fact under s 44(7) because rating Mr Sesalim's PTSD under Table 5 required complex evaluative judgments rather than simple fact finding, and that task was best left to the Tribunal. The Court remitted the matter for redetermination without excluding pension eligibility, because that was the core issue on remittal. Given concerns noted in the earlier reasons about adverse credit findings, the remittal was to a differently constituted Tribunal. Costs were ordered in Mr Sesalim's favour because he succeeded and no sufficient reason was shown to depart from costs following the event.

Court Disposition

VID 1297 of 2016 appeal allowed, Tribunal decision set aside and matter remitted for redetermination by another member of the Administrative Appeals Tribunal; VID 166 of 2017 appeal had been dismissed and costs were ordered in favour of Mr Sesalim.

Orders

  • ['VID 1297 of 2016: The appeal is allowed.' 'VID 1297 of 2016: The decision of the Administrative Appeals Tribunal given on 22 March 2016 in matter number 2015/4791 is set aside.' 'VID 1297 of 2016: The subject of the decision referred to in Order 2 to be remitted for redetermination by another member of the...