Nelson, M.W. v Department of Social Security

[1986] FCA 598

~!~nllt~llstr--~t.l.:r_c__law - appeal from declslen of the kdmlnlstratlve

: ' - ~ p ? a l t ; Tt-~~.l:731 a f C 1 c m l y dec l .2 ,r Irder ? o r ~ 3 1 Ceyurlty- .It 1947

to reduce lnvalld pension of appellant - motlon by respondent for

dismissal of appeal as incompetent - whether notice of appeal

discloses question of law

Bdministratlve Appeals Tribunal Act 1975 s.44(1)

Social Securitv Act 1947 ss.6(1), 15A(1), 28

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

CONSTITUTED BY MR. R.D. NICHOLSON DEPUTY PRESIDENT

MICHAEL WILLIAM NELSON

v. THE SECRETARY, DEPARTMENT OF SOCIAL SECURITY

c

No. W G97 of 1986

FEDERAL COUaT OF

B O W C.J., TOOHJZY & FRENCH JJ.

PERTH

10 DECEMBER 1986

IN THE FEDERAL COURT	I
OF AUSTRALIA	I

WESTERN AUSTRALIA l No. WA G97 of 1986

DISTRICT REGISTRY

I

GENEKAL DIVISION

I

ON APPEAL from the Adminlstrative

Appeals Tribunal constltuted by

Mr. R.D. Nicholson Deputy Presldent

B E T W E E N :

MICHAEL WILLIAM NELSON

Applicant

and

THE SECRETARY, DEPARTMENT

OF SOCIAL SECURITY

Respondent

MINUTE OF ORDER

c

JUDGES MAKING ORDER: Bowen C.J., Toohey and French JJ.

DATE OF ORDER:	10 December 1986
WHERE MADE:	Perth

THE COURT ORDERS THAT:

The appeal is dismissed as incompetent.

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

IH THE FEDERAL COURT ,

OF AUSTFALIA I

WESTERN AUSTWIA	l	N O .	6iA G 9 i of	1986
DISTRICT REGISTRY	I
GENERAL DIVISION	I

ON AFFEAL from the Administrative

Appeals Tribunal constituted by

Mr. R.E. Nicholson Deputy Presldent

B E T W E E N :

MICHAEL WILLIAM NELSON

Applicant

and

THE SECRET-Y, DEPARTMENT

OF SOCIAL SECURITY

Respondent

, ,: 7 , '

&:. 1; k e n C.J. , Toohey and French JJ.

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I_ - . a . . REASONS FOR JUDGMENT

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, ',-. '.G?Mr. Nelson has appealed from a decision of the

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Adm'iriistirbtive Appeals Tribunal. That decision affirmed a

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decision'if an officer of the Department of Social Security, made

pursuant to s . 2 8 of the Soclal Security Act 1947, to reduce the

rate of Mr. Nelson's invalid pension.

There 1s a motion by the respondent that the appeal be

dismissed as incompetent. This turns on the requirement in

sub-s.44(1) of the Administrative Appeals Tribunal Act 1975 that a

party to a pcoceedlnu before the Trlbunal mav appeal to the Federsl Court "on a questlon of law". In the respondent's

submlsslon. no question of law 1 s disclosed by the notice of

appeal or by a supplementary	document	flled	by	Mr. Nelson
containlng grounds of appeal.

The notlce of appeal sets out in four numbered

paragraphs what are said to be the questions of law raised by the

appeal. In our m e w none of the so called questlons of law 1s

raised by the appeal. Mr. Nelson's pension was reduced because of

the n e w taken by the department to include in his income interest

from bank accounts in the name of Kingdom Management Community.

In affirming the departmental decision, the Tribunal said:

"The Invested funds on which interest is earned are

maintained in an account styled as directed by the

Applicant from time to time and for which the Applicant

is the signatory. The Cornunity is not an incorporated

apparent it is subject to management and control by the

Applicant. In the final analysis the Community is the

Applicant. There is no legal separation between the

entity and has no separate legal existence. It is earned on funds invested in the name of the Community

are likewise for the use and benefit of the Applicant". -

The matter came before the Tribunal pursuant to

sUb-s.l5A(l) of the Social Security Act. The references in the

.	notlce of appeal to the Administrative Decisions (Judicial Review)
& A 1977 mistake the nature of the jurisdiction exercised by the
Tribunal. The Tribunal was requlred to make the correct or

preferable declslon on the application before it and it concluded

that the declslon under teview should be affl.rrned. The questions

of law rnrntloned In	the notice of appeal do not arlse from the
Trlbunal 5 declslon.

The urounds of appeal ranue over a number of matters

mcludlnu the status of Kmgdom Management Communlty as a

rellqion. But the Trlbunal's decision did not turn on the

questlon whether the Community was a religlous body. It turned on

the application of the definition of "lncome" in	sub-s.6(1) of the
Social Securitv Act which reads:

"'income'. in relation to a person, means personal

earnings. moneys, valuable consideration or profits

earned, derived or received by that person for the

person's own use or benefit by any means from any

source whatsoever, within or outside Australia, and

includes a periodical payment or benefit by way of gift

r or allowance, . . . "

The Tribunal concluded that interest earned on accounts

in the name of Kingdom Management Community were moneys derived or

received by Mr. Nelson for his owr. use or benefit and therefore

constituted income within the meaning of the Act. This was a

finding of fact and does not give rise to a question of law.

In the course of Mr. Nelson's submissions, reference was

made to the moneys invested in the name of Kingdom Management

Communlty. For the most part these moneys were invested on fixed

term wlth interest accruina quarterly and compounded thereafter.

In its reasons for decislon. the Tribunal spoke in general terms

4 .

of lnterejt 2arned un the a8:counts. No questlon appears to have

arisen brf8,t-e the TLlbunal as ts whether moneys were m fact

derived or recelved by any person durlnu the terms of the

lnvestments and no such questlon was ralsed by the notlce of

appeal or by	any	of the	other	documents	flled	on	behalf
of Mr. Nelson.

We accept the submisslons of the respondent that no

question of law arises out of the Tribunal's decision and that

none is disclosed by the notice of appeal or supporting documents.

The appeal must therefore be dismissed as incompetent.

I certify that this and the

preceding 3 pages are a true copy the of reasons for judgment herein of the Court.

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Associate

Dated: 10 December 1986

Counsel for the applicant: . Applicant appeared in person

Counsel for the respondent: Ms. C. Francas instructed by

Australian Government Solicitor

Date of hearing: 9 December 1986