Chambers, E.M. v Department of Social Security

[1987] FCA 250

.

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

WESTERN AUSTRALIA	)
DISTRICT REEISTRY	) No. NAG 127 of 1986
GENERAL DIVISION	)
BEIWEEN:
ELSA MODANO LAMBRICHE CHAMBERS

Applicant

m:

THE SECRETARY, DEPARTMENT OF

SOCIAL SECURITY

Respondent

MINUTE OF ORDER

JUDGES MAKING ORDER:	FOX, JENKINSON AND WILCOX JJ.
DATE OF ORDER:	21 MAY 1907
WHERE MADE:	PERTH.
THE COURT ORDERS THAT:

1. The appeal be dismissed.

Note: Settlement and entry of orders 1s dealt with in

Order 36 of the Federal Court Rules.

h

L -

IN THE FEDERAL COURT OF AUSTRALIA )

GJESTERN-XJSTRALIA	i
GISTRICT REGISTRY	) No. NAG 127 of 1986
GENERAL DIVISION	I
BETWEEN:
ELSA MODANO LAMBRICHE CHAMBERS

Applicant

m:

THE SECRETARY, DEPARTMENT	OF
SOCIAL SECURITY

Respondent

CORAM:	FOX, JENKINSON AND WILCOX	JJ.
D N :	21 MAY 1987

REASONS FOR JUDGMENT

THE COURT:

This is an appeal against decision a of the

Administrative Appeals Tribunal affirming a decision of the

Secretary of the Department of Social Security on the question

whether the applicant should be reuarded, for the purpose of

computina social securltp payments, as a married person	or	an
unmarried person.

There was some initial confusion before the Tribunal as

to the nature of the benefits paid to Mrs Chambers, whose

computation is in issue, at the relevant time: 27 November 1984

to 1 April 1985. But it was eventually agreed that the relevant

benefit was the unemployment benefit. Unemployment benefits are

payable under Part VI1 of the Social Securitv Act 1947. Section

112, which 1s conLalned wlthln that Part. stlpulates rates of

beneflt. which rates distinuuish between married persons and

unmarried persons. At the tune taken as bemq relevant, s.112(4)

provided that, where the spouse of a married person "is livlnq

apart from the married person in pursuance of a separation

agreement In writing or of a decree, judgment or order of a court

or In such clrcumstances that the Secretary 1s satisfied that the

separation is likely to be permanent," the rate of the

unemployment benefit should be increased t o the unmarried rate.

If the relevant time was taken as beinq that whlch followed the

amendment of sub-sectlon (4). it	is clear that there would be no
aruuable basls for the claim.

The case for the applicant. before the Tribunal, was

that she was in fact llvinq apart from her husband, so that she was entitled to the unmarried rate. Mrs Chambers conceded that she and her husband resided in the same premises durinq the

relevant perlod but she contended that they lived separate liv s.

Evidence was given by both Mrs Chambers and her husband, who was

called on behalf of the respondent, as to their way of life and as to various activities which they carried out together or separately. In the end the Tribunal concluded that the marital

relationshlp had not been severed, with the consequence that it

was obliued to reject the submission that Mrs Chambers was

"llvinu apart" from her husband.

Three urounds were taken in the Notice of Appeal. The

flrst uround was that the Tribunal erred In hearing evidence from

Mr Chambers because, at the date of the hearing, he "was

3 .

sufferinq from Fuaue and was experlenclnu memory loss". As to

this around it is enouqh to say that there was no evldence that.

at the date of hearlng. Mr Chambers had any incapacity whlch

mqht have rendered hls evidence unreliable. No ob?ectlon was

taken to his ulvinu evidence generally, nor was any objection

taken m respect of any particular part of it. The members of

the Trlbunal 5aw and heard Mr Chambers and were in a position to evaluate hls evldence which, in any case, did not contradlct the evidence of Mrs Chambers in any material respect.

The second around of appeal was that the Tribunal erred

in givina undue weiaht to Mr Chamber's evidence. However, the

weight to be aiven to the evidence was a question of fact for the

Tribunal, not a question of law for this Court.

Finally, it was said that the Tribunal erred in law in

that It applled the wrong criteria in reachina its declsion. In

araument before us Mrs Chambers, who appeared in person, agreed

with each of the factual conclusions stated by the Tribunal.

Those conclusions were all made in connection with matters

relevant to the ultimate findings which the Tribunal had to make.

Some cut one way, some the other. But we do not think that any

were irrelevant or that the Tribunal erred in its selection of

criteria. The ultimate determination made by the Tribunal was

one which was, upon the evidence, clearly open to it.

Because the applicant lacked lead1 representation, we

have examined the Tribunal's decision with more than usual care.

But we are unable to detect any leyal error in the declsion.

4.

4

Indeed we would m?o further and say that, upon the facts found	by
the Trlburlal, that declsiofi was Inescapable.

' 3 c appeal sLould be dismissed.

I certify that this and the

three ( 3 ) precedlng pages are

a true copy of the Reasons

the Court.

Appearance and Solicitor for the applicant: In Person

Counsel for the respondent: Ms. H Riley

Solicitor for the respondent: Australian Government Solicltor

Ijate of Hearing: 18 May 1987

Gate judqment dellvcred: 21 May 1987