Bugg, Jeffrey Thomas v Department of Social Security

[1996] FCA 1041

NOT SUITABLE FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )  
  )
TASMANIA DISTRICT REGISTRY       )    TG 3 of 1996
  )
GENERAL DIVISION                 )

BETWEEN:JEFFREY THOMAS BUGG

Applicant

AND:DEPARTMENT OF SOCIAL SECURITY

Respondent

CORAM:    Burchett J.
PLACE:    Hobart
DATE:     22 November 1996

REASONS FOR JUDGMENT

BURCHETT J.:

This is an appeal against a decision of the Administrative Appeals Tribunal.  Such an appeal, as is well known, is limited to questions of law.  I have no power to reconsider factual findings of the Tribunal.  The Tribunal in this case was required to review a decision made on 31 March 1987 by the Social Security Appeals Tribunal, affirming a departmental decision to cancel Mr Bugg's invalid pension.  The Administrative Appeals Tribunal accepted the evidence provided by the reports of a Commonwealth medical officer, Dr Judd, and a psychiatrist, Dr Kerr, both of whom took the view that Mr Bugg, though suffering from various complaints, was not in March 1987 incapacitated to the extent required by the
statutory provisions governing invalid pensions then in force.  That, of course, is a question of fact. 

Mr Bugg raised a number of arguments on the appeal. He said the proceedings in the Administrative Appeals Tribunal had been too formal, but I can see nothing to show any error of law by a failure to act in accordance with the Tribunal's charter of relatively informal review. Mr Bugg's main complaint appears to be that, when he was granted an invalid pension in New South Wales in 1974, the only stipulation to which the grant was subject was review in three years time. In 1978 he was refused a public service appointment on medical grounds. In these circumstances, he says: (1) it was legally improper for his pension to be reviewed in 1987; and (2) the review took place in Tasmania after his return here, and this breached his constitutional right not to be prejudiced by his residence in the State of Tasmania: see section 117 of the Constitution.

Mr Bugg claims his pension would not have been reviewed if he had remained in New South Wales. There is, however, no evidence to justify the factual conclusion. Even if, in reality, his pension would not have been reviewed in New South Wales, that would not mean the review that did take place was occasioned by a "disability or discrimination", contrary to section 117 of the Constitution. There is simply no evidence of any such disability or discrimination in this case.

So far as the power of the department to review an invalid pension is concerned, Mr Bugg relies on section 144 of the Social Security Act 1947. But his argument involves a misunderstanding of that section. The fact that a pension is "inalienable" does not mean it is untouchable. If circumstances change, a condition that was once deemed permanent may later be found to have been cured, or at least to have been ameliorated. The department is not bound to continue to pay a pension for which there is no longer statutory warrant. Mr Bugg complained of the destruction, in his case, of the department's old file. His case, of course, has a history going back at least to 1974, and it is not particularly surprising that destruction procedures intervened at one stage, when there was no action on the file for some time. I can see no point of law affecting the decision of the Administrative Appeals Tribunal arising out of this circumstance.

Finally, Mr Bugg argued that the Administrative Appeals Tribunal had wrongly considered a separate question relating to a disability support pension which was granted under later legislation.  It is apparent that the Tribunal understood Mr Bugg to have brought an application for review in respect of an aspect of that matter also.  Even if the Tribunal was not actually required to consider this other question, it made no decision contrary to the decision of the Social Security Appeals Tribunal on it, and I can see no basis to conclude that Mr Bugg was prejudiced or adversely affected in any way.

For these reasons the appeal is dismissed.

A question having been raised, but not resolved, as to whether a costs order should be made in this case, I will make no order now in respect of the costs of the application, reserving to the respondent the right to make an application in respect of costs should it be so advised.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett.

Associate:

Date: 28 November 1996.

Applicant:  appeared in person

Counsel for the Respondent:      Mr P. Bowen

Solicitor for the Respondent:        Australian Government      Solicitor

Date of hearing:                 22 November 1996