Annas, A v Director-General of Social Security

[1985] FCA 177

177

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No. G. 349 of 1983

)

GENERAL DIVISION

)

ON APPEAL FROM THE

ADMINISTRATIVE APPEALS TRIBUNAL

CONSTITUTED BY SIR WILLIAM

PRENTICE

BETWEEN :

ARTHUR ANNAS

Applicant

-

m:

DIRECTOR-GENERAL OF SOCIAL

SECURITY

Respondent

MINUTE OF ORDER

JUDGE : FOX J.

DATE OF ORDER:	30 APRIL 1985
WHERE MADE:	Sydney.

THE COURT ORDERS THAT:

-. .

1. The application be dismissed.

Note: Settlement and entry of orders is dealt with In

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY	)	No. G.349 of 1983
)

DIVISION	GENERAL	)
ON APPEAL FROM THE
ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTD BY SIR WILLIAM PRENTICE
BETWEEN: ARTHUR ANNAS

Applicant

m:

DIRECTOR-GENERAL OF SOCIAL

SECURITY

Respondent

W: FOX J.

D B : 30 APRIL 1985

REASONS FOR JUDGMENT

(M TEMPORE)

FOX J.

This is an appeal from a decision of the Administratlve

Appeals Tribunal, constituted by Sir William Prentlce. The

Tribunal affirmed a decision of the Social Security Appeals

Tribunal, which had dismissed an appeal from the re]ection of the

applicant's claim for an invalld pension.

The claim was based on 5.23 of the Social Securitv Act

1947:

"23. For the purposes of this Division, a person shall

be deemed to be permanently incapacitated for work if

the degree of his permanent incapacity for work is not

less than eighty-five per centum."

The original application for an invalid pension was made

-) on 21 or 22 July 1980. The application for review of the

decision was made in July 1982, and the case has pursued its

leisurely course to this Court.

The applicant was born in Greece and came to Australia

in 1947. He is now aged 55.

About 10 years ago he ceased work due to physical

problems and also perhaps to a measure of depression. In the

period from 1947 to about 1975 he worked mostly in cafes and In

relation to the preparation and sale of food. F r a while he and

his brother owned a restaurant but this closed down due in part

to loss of business because the route of a passinu road was

changed, and in part to a dispute with the lessor of the

premises. It is not necessary to detail the physical complalnts

made by the applicant; at n early stage they related principally

to nerves and a peptic ulcer, now they are mainly of	an
orthopaedic nature.

On this appeal, as is accepted, the Court can only deal

3

with any error of law made by the Tribunal. It is not for the

Court to form its own view of the facts. This role was solely

that of the Tribunal. The situation is, however, that the

particular grounds argued raise questions of fact only, although

a courageous attempt has been made to make some of them sound

like questions of law.

I will comment on the principal matters mentioned.

The first matter raised is that the Tribunal considered

and took into account the ability of the appellant to obtain

finance and assistance to enable him to carry on his own cafe or

food bar. It is not said that this is always a wholly irrelevant

matter: rather that it was irrelevant in the present case or at

least was given undue weight. It was submitted that "work"

(5.23) could only be regarded as paid employment.

It seems to me that the Tribunal was entitled to

consider whether the appellant could establish his own business

and become self-employed. The matter arose because of

suugestions made by one or two of the doctors that he could work

satisfactorily on a self-employed basis, but may not be able to

do so if under the control of an employer. This suggestion 1s.

of course, of a highly speculatlve nature and obvious1:r would

depend very much upon the nature of any employment and

arrangements made with the employer. The Tribunal did take the

view on the evidence that the appellant could probably establish

4.

his own business and be his own employer. but the decision did

not rest on that consideration. It was a factual consideration.

historically correct, which fell into place with others.

It was said in this connection that there is nothing in

the evidence to show that the appellant had managerial capaclty

but this was. at the most, an incident of the facts and the

Tribunal was free to reach its own decision from direct evidence

or from inference. It obviously took the view that there was

some prospect of the appellant being able to manage a business

himself. It may well have been of course that any business he

could establish would be very small and that he would be the only

person employed. Many such situations require little or no

capital.

It is not necessary for me to examine with partlcular

closeness the language of 5.23, or provide a paraphrase for it.

In Re Panke and Director-General of Social Services, (1981) 4

A . L . D . 179, Davies J.. as President of the Tribunal, regarded as

applicable the well-known passage m the ?udgment of Lord

Loreburn L.C. in Ball	v. Wm.	Hunt & Sons Ltd. (1912)	A . C .	496,
499-500:

"In the ordinary and popular meaning which we are to

attach to the language of this statute I think there is incapacity for work when a man has a physical defect

which makes his labour unsaleable in any market

reasonably accessible to hlm, and there is partial

incapacity for work when such a defect makes his labour

saleable for less than it would otherwise fetch."

5.

He also referred in that case to a passage in the judgment of

Ellicott J. in Bowman v. The Repatriation Commission 12 May 1981.

In Panke, the other two members of the Tribunal (Messrs. Hall and

Glick) expressed the position thus in relation to the phrase

"permanently incapacitated for work" in s.24 (p.192):

"There cannot, in our view, be any doubt that in its

ordinary meaning, expresslon the 'permanently

incapacitated for work' in s.24 of the Act connotes that

a person is mentally or physically incapacltated from

.Ist proof of economic loss as a consequence of

such incapacity is not a condition precedent to the

grant of an invalid pension) as It is with sickness

benefit -see para 41 above), the concept of permanent

incapacity for work in S . 24 of the Act necessarily, In

our view, involves the notion of the loss of the

capacity to earn a wage."

It is submitted that due regard was not paid to the fact

that the appellant could not or might not be able to attract

employment. Put another way, it was ubmitted that he

appellant's ability to obtain employment was central to the case

and was not duly considered. I agree that this was an important

matter, so far as non-employment was attributable to incapacity,

but it does not seem to me that It was neglected by the Trlbunal.

The submission 1 s related in a degree to that already

referred to concerning the appellant's ability to establish his

own business and become self-employed, but as I have sald. that

was not the only thing considered by the Tribunal and it seems to

be evident that due conslderation was glven to the qeneral.

6 .

question of the applicant's ability to obtain work.

It was argued on behalf of the appellant that the

Tribunal rejected the psychiatric evidence which had dealt with the question of depression and related matters and that it was

not entitled to do this. As I read the decision, there was not

any total rejection of psychiatric evidence, but it was

considered with the other evidence and in the ultimate, so far as

appears from what was said,	I believe it	was not given great
weight.

As I have said, it is not my role to attempt to reach

any conclusion on the merits of the case. In what has been put,

I am unable to discern any material question of law as to which

it could be said there was n error.

The application should therefore be dismissed.

Aeeoaiate

1 Datedl