Boscovic, J.J.J. v The Secretary, Department of Social Security

[1994] FCA 927

JERRY JEREMIAH JORDAN BOSCOVIC v THE SECRETARY, DEPARTMENT OF SOCIAL SECURITY
No. ACTG41 of 1994
FED No. 927/94
Number of pages - 7
Social Services

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
NEAVES J

CATCHWORDS

Social Services - Disability support pension - Pension paid until decision taken that pension be cancelled - Decision affirmed by Administrative Appeals Tribunal - Appeal to Court - Question whether Tribunal's decision that applicant did not have a continuing inability to work so unreasonable that no reasonable person could have arrived at it

Administrative Appeals Tribunal Act 1975 (Cth), subs 44(1)
Social Security Act 1991 (Cth), s 94

HEARING

CANBERRA, 21 October 1994
#DATE 29:11:1994

The applicant appeared in person.

Counsel for the respondent: Mrs J. Bonsey

Solicitor for the respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The application be dismissed.

2. There be no order as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

NEAVES J This is an application by way of appeal pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) by Jerry Jeremiah Jordan Boscovic ("the applicant") from the decision of the Administrative Appeals Tribunal given on 23 May 1994 in relation to the applicant's entitlement to a disability support pension under the Social Security Act 1991 (Cth).

1. The history of the matter may be shortly stated. The applicant was granted an invalid pension under Part IV of the Social Security Act 1947 (Cth) with effect from 3 March 1988. Invalid pension was paid under that Act until its repeal upon the coming into operation on 1 July 1991 of the Social Security Act 1991 (see Social Security (Rewrite) Transition Act 1991 (Cwlth), s.3). Payment of the pension continued thereafter under Part 2.3 of the Social Security Act 1991. By the Social Security (Disability and Sickness Support) Amendment Act 1991 (Cth), Part 2.3 of the Social Security Act 1991 relating to the payment of invalid pension was repealed and substituted. The substituted provisions, which relate to the payment of disability support pension, came into operation on 12 November 1991. A disability support pension was paid to the applicant under the substituted provisions (see clause 33 in Schedule 1A to the Social Security Act 1991, that clause having been inserted by s.23 of the Social Security (Disability and Sickness Support) Amendment Act 1991). Payment of that pension continued until the decision was taken by a delegate of the respondent on 3 November 1992 to cancel the pension, the cancellation to take effect following the payment which was to be made on 5 November 1992. The pension was cancelled on the ground that the level of the applicant's impairment was not of 20% or more under the Impairment Tables. The decision to cancel the disability support pension was affirmed by an Authorised Review Officer on 25 February 1993 but on a different ground, namely on the ground that, although the applicant's impairment was of 20% or more under the Impairment Tables, he no longer had a continuing inability to work. The decision of the Authorised Review Officer was affirmed by the Social Security Appeals Tribunal on 14 April 1993 and by the Administrative Appeals Tribunal ("the Tribunal") on 23 May 1994.

2. The qualifications for disability support pension are prescribed by s.94 of the Social Security Act 1991. At the material time, that section relevantly provided:
   

"94. (1) A person is qualified for disability support pension if:

(a) the person has a physical, intellectual or psychiatric impairment; and

(b) the person's impairment is of 20% or more under the Impairment Tables; and

(c) the person has a continuing inability to work; and

(d) the person has turned 16; and

(e) the person either:

(i) is an Australian resident at the time when the person first satisfies paragraphs (a),

(b) and (c); or

(ii) has 10 years qualifying Australian residence; or

(iii) is born outside Australia and, at the time when the person first satisfies paragraphs

(a), (b) and (c), the person:

(A) is not an Australian resident; and

(B) is a dependent child of an Australian resident; and the person becomes an Australian resident while a dependent child of an Australian resident.

(2) A person has a continuing inability to work if the Secretary is satisfied that:

(a) the person's impairment is of itself sufficient to prevent the person from doing:

(i) the person's usual work; and

(ii) work for which the person is currently skilled;

for at least 2 years; and

(b) either:

(i) the person's impairment is of itself sufficient to prevent the person from undertaking educational or vocational training during the next 2 years; or

(ii) the person's impairment does not prevent the person from undertaking educational or vocational training but such training is not likely to equip the person, within the next 2 years, to do work for which the person is currently unskilled. ....

(5) In this section:

....

'work' means work:

(a) that is for at least 30 hours per week at award wages or above; and

(b) that exists in Australia, even if not within the person's locally accessible labour market. ...."

1. It is not now in dispute that at the material time the applicant satisfied the qualifications prescribed by pars (a), (b), (d) and (e) of subs.94(1). The dispute between the parties centres on the qualification prescribed by par.(c) of that subsection. The issue was discussed by the Tribunal in the following paragraphs of its reasons for decision:
   

"6. Document T24 is a report by Mr Nolan in the Department of Social Security about an investigation being conducted by the Department in conjunction with the Australian Taxation Office. The gist of that report is that the applicant had been found to be involved in a roadside flower selling business since February 1988 and, in particular, had been observed undertaking this activity for some period from November 1990. As a consequence the applicant has been interviewed about his activities and has advised Mr Nolan that he drove his van to the roadside location every day from his home and that he also drives to Sydney once a week to purchase stock. He apparently stated that he works from 2 pm until 7 pm each day, and sometimes works longer hours. The applicant has a full drivers licence.

7. In his evidence before the Tribunal the applicant basically confirmed Mr Nolan's report as to the roadside flower selling business and also indicated that his wife participated in the selling activity but at different sites. He agreed in his evidence that he travels to Sydney for the purpose of buying flowers at the Sydney market and that his purchase of stock each week would be in the vicinity of $600. He claimed that these flowers were then sold at a mark-up which netted him about $800 as gross proceeds, that is, $200 gross profit on the transaction.

....

14. The applicant sought to convince me that the roadside flower selling business is only marginally profitable and is a very undemanding business suited to a person with his incapacity. I have some difficulty with this and I will explain why. Exhibit 1 is a bundle of papers concerning the financing of a purchase of a Suzuki Super Carry Van purchased from Slaven Motors in 1989. In his statement to the finance company, Australian Guarantee, the applicant said that his gross income from his self-employed florist business was $500 per week. Repayments on the van were said to be $366 per month, to be paid over three years. That van was subsequently traded in on a Nissan van. The applicant said in his evidence that the Nissan van was bought as a new vehicle in

1990. The applicant also said in his evidence that he had purchased a Ford Econovan as a new vehicle for $23,900 cash. When asked where he obtained the cash from, he said it was from gambling. When asked details about how he obtained this money and how he obtained further money to buy a Toyota Hi Ace Van in May 1993, he became evasive in his answers and I formed the view that, in fact, he was prevaricating. He said, as an explanation, that he was a professional gambler and that he did very well as a gambler, and that was the source of his income. In relation to the flower selling business, he claimed that he never made more than $80 per week from flower selling, and in some weeks that he did not make anything.

15. He admitted in the course of his evidence that he was capable of carrying on a business of retail selling of flowers from the roadside vans, but he claimed that he was unable to do this on a regular basis. In relation to the flower selling business he said that he has a hawker's licence but the police do not allow him to remain in one place for more than a limited period, said to be half an hour. He said in practice that he stays in a position for one to two hours and then moves on, or sometimes the police move him on. When asked where he obtained the money for his licence his response was that he had robbed a bank. He also said in evidence that he had ceased trading in flowers in November 1992. He did not explain the coincidence between the cessation of selling flowers and the action of the Department and the Australian Taxation Office in relation to his flower selling activities. Evidence by Michael James Nolan established that the applicant regularly operated a flower stall on the side of the Monaro Highway by selling from a van. Mr Nolan said that he had observed the applicant regularly between February 1991 and up to about May 1993. He said that he understood the van was now at a different location but he had not seen the applicant there.

16. The only remaining issue I have to decide is whether the applicant has a continuing inability to work. It is clear enough on the medical evidence that the applicant is only capable of performing light duties and I so find. However, it is also clear on the evidence that the applicant has been carrying on his own business as a flower seller, apparently selling on a regular basis and, I infer, making a reasonable income, notwithstanding the evidence of the applicant of the contrary. In this regard I found the applicant to be a most unsatisfactory witness. Some of his answers to questions during cross-examination were quite plainly false and I am satisfied that the applicant has not told the Tribunal a frank and true account of his affairs. In particular, it seems to me to be clear that the applicant makes a significant income from his business and that his business is in fact reasonably successful, given the nature of the business. I am also satisfied that the business is conducted for at least 40 hours on average per week although the hours will vary from week to week....

....

18. I am satisfied, and so find, that the applicant has a continuing ability to work and he evidences this by conducting his own profitable business. I am satisfied that the applicant is therefore outside the terms of sub-section 94(1) of the Act, and I so find."

1. The application, which was filed by the applicant in person, identified the question of law raised by the application as being "whether the decision of the Administrative Appeals Tribunal is so unreasonable as not to have been made in accordance with law". The application seeks an order that the decision of the Tribunal be set aside and the claim for disability support pension be upheld. The ground relied upon is set out in the application in the following terms:
   

"The 'Reasons for Decision' reveal that relevant facts were not adverted to and facts in error were relied upon in making the decision the applicant wishes to have set aside. The applicant therefore contends the decision of the AAT is so unreasonable as to be defectively made at law."

1. On the hearing of the application, the applicant appeared in person. Mrs J. Bonsey appeared on behalf of the respondent.

2. The Tribunal had before it documentary material and oral evidence from the applicant and Michael Nolan, an officer of the Department of Social Security. The documentary material included two file notes prepared by Mr Nolan. The earlier of these notes (Document T22), which is undated, reads:
   

"The client and his wife Maria Boskovic were interviewed by M Nolan and S. Ross at Area South West Office on 18-1-91. This interview was a follow on from interviews conducted as part of a joint DSS-ATO project in December 1990 when they were interviewed at their roadside flower stalls, Jerry at Monaro Highway Hume and Maria at Dairy Flat Road Piallago.

They were requested to provide financial details such as bank accounts/balances and details of car purchases and tax returns. They only provided one bank account each (see note on file). - Stated that maximum profit was about $100 per week - " " they worked 4 or 5 days per week from approx 3pm till 7pm weekdays

- Jerry purchases the stock either at Flemington markets

(Sydney) or at Fyshwick or Queanbeyan (Qbn - years ago) - The flowers are stored under the house to preserve them - Stock purchased at Flemington cannot be verified as the operators require cash and do not issue receipts - Clients advised to provide the department with income/expenditure records in order for us to be able to determine correct rate of benefit

- Client requested to provide a tax return to ATO - Client did advise that he sold flowers at time of grant."

1. The later file note (Document T24), dated 28 March 1991, is in the following terms:
   

"The above named (Jerry Boscovic) had been under investigation by this department in conjunction with a joint project conducted with the Australian Taxation Office.

I request with (sic) the following points be considered when assessing his invalidity status.

. Mr Boskovic has been involved in flower selling from a roadside van since 23 February 1988.

. Mr Boskovic has been observed undertaking this activity 4 and 5 days per week and on weekends since November 1990. . Mr Boskovic has been interviewed about his activities and volunteered the following information: He drives himself to his roadside location everyday from his premises and he also drives to Sydney between once a week and once a fortnight to purchase stock.

. Mr Boskovic works from approx 2 p.m. until approx 7 p.m. . He has also been working 'full' days being observed in the morning and again in the evening on some occasions. . Mr Boskovic has a full drivers licence. . Mr Boskovic employed a walking stick when he attended this office and appeared to have some difficulty walking. However on the numerous occasions that he was observed at 'work' there was no evidence of him utilizing the aid nor were his movements noticeably restricted."

1. In his oral evidence, Mr Nolan said that he knew the applicant, having interviewed him twice: that, between about February 1991 and up until approximately April/May 1993, when driving home from work from Queanbeyan to Theodore via the Monaro Highway, sometimes driving his car and other times as a passenger, he had observed the applicant apparently "operating a roadside flower vending van": that he had also seen him on some Saturdays and Sundays at the same location; that often the van was not there on a Monday; and that he purchased flowers from the applicant at the site on one occasion and interviewed him there on another.

2. The applicant challenged the statement in Mr Nolan's file note dated 28 March 1991 that he, Boscovic, had "a full drivers licence", asserting that his licence had been cancelled in 1990 and had only been regained in September 1993. Mr Nolan's response was that, on the occasion when the applicant was interviewed by him in company with an officer of the Australian Taxation Office, the applicant had produced a document to that officer in response to a request to produce his driver's licence. Mr Nolan, however, acknowledged that he had not inspected the document. It may also be observed that the applicant's evidence included evidence from which it could be inferred that he had driven his vehicle on a number of occasions during the period when he did not have a licence. It was clearly consistent with his evidence that, from time to time, friends had driven the vehicle in the course of carrying on the business when he was not licensed to do so.

3. In my opinion, there was evidence before the Tribunal which, if accepted, would support a finding that, over a considerable period of time from 1988 onwards, the applicant was gainfully employed in conducting a roadside flower selling business. Clearly, the Tribunal accepted that evidence, reinforced as it was in material respects by what the applicant said in his oral evidence, in the formulation of questions that he asked of Mr Nolan in cross-examination and in his submissions. Its finding in that regard cannot be said to be so unreasonable that no reasonable person could have so found.

4. In pars 14 and 15 of its reasons for decision, the Tribunal considered the applicant's contention that the roadside flower selling business was not carried on on a regular basis because his disabilities did not enable him to do so and the further contention that the business was only marginally profitable. It is clear that the Tribunal rejected both contentions. Upon a careful reading of the whole of the material before the Tribunal I am satisfied that there was ample material before it upon which it could properly reject both contentions. I am unable to conclude that to do so was so unreasonable that no reasonable person could have done so.

5. The Tribunal clearly did not accept the applicant's evidence that success at gambling was the source of the funds utilised to purchase various motor vehicles that the applicant or his wife operated from time to time. Before the Court, the applicant submitted that the Tribunal should have adjourned the hearing before it to enable him to adduce evidence to show that he had won substantial sums of money gambling at various clubs. He sought to tender before the Court material which he said supported that submission. The material was not received into evidence but I have considered whether the Tribunal erred in refusing an adjournment of the hearing. Having read the transcript of the proceedings before the Tribunal I am satisfied that the Tribunal's refusal to grant an adjournment discloses no error of law on its part warranting the intervention of the Court.

6. The applicant's contention that the decision of the Tribunal is unreasonable in the Wednesbury sense appears to stem largely from his conviction that the issue before the Tribunal upon which it found against him was concluded in his favour by the expressions of opinion contained in the report by Dr R.J. Kitchin dated 23 August 1993 and the occupational psychology report of Dr B. Hodge dated 11 October 1993. Dr Kitchin, having examined the applicant expressed his conclusion as follows:
   

"All these impairments in my view add up to more (than) 20% physical impairment"

and added:

"and this constitutes a continuing inability to work."

It is clear from an examination of Dr Kitchin's report that he was concerned only with the question whether the applicant satisfied the qualifications prescribed by pars (a) and (b) of subs.94(1) of the Social Security Act 1991. His reference to the applicant's continuing inability to work was stated as a conclusion based solely on the degree of impairment he found. It was not based on any material relating to the activities in which the applicant had engaged at the material times. Similarly, the fact that Dr Hodge was prepared to support the applicant's appeal to the Tribunal against the cancellation of his disability support pension was but a factor to which the Tribunal might have regard. Clearly, Dr Hodge did not have before him the whole of the material placed before the Tribunal.

1. For these reasons, the application is dismissed. As the respondent informed the Court that he did not seek an order for costs in the event of the application being dismissed, there will be no order in that regard.