Rolph, J.C. v Volker, D

[1994] FCA 632

632      9 9

JUDGMENT NO. .....r.*mmeewJ rrr-m.

IN THE FEDERAL COURT OF AUSTRALIA )

AUSTRALIAN CAPITAL TERRITORY )

) NO. ACT G 70 of 1992

DISTRICT REGISTRY	) )
m E R A L DIVISION	)

ON APPEAL FROM THE GENERAL ADMINISTRATIVE

DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: JOHN CHARLES ROLPH

Applicant

AND:  DEREK VOLKER, Secretary to the
Department of Social Security

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER :  Neaves J.

OF ORDER 12 September RECEIVED

13 SEP 1994

lmmuB!x Canberra FEDERAL CWRT OF

MJSTRWA

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

PRlNaPAL REGIBTRV

1.    The application be dismissed.

2.   The applicant pay the respondent's costs of the application other than the costs of the motion notice of which was given on 7 December 1992 and of the hearings on 11 and 21 December 1992.

IN THE FEDERAL COURT OF AUSTRALIA	) )
AUSTRALIAN CAPITAL TERRITORY	i No. ACT G 70 of 1992
DISTRICT REGISTRY BNERAL DIVISION

QN APPEAL FROM THE GENERAL ADMINISTRATIVE

DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: JOHN CHARLES ROLPH

Applicant

AND: DEREK VOLKER, Secretary to the

Department of Social Security

Respondent

m: Neaves J.

DATE: 12 September 1994

MASONS FOR JUDGMENT

John Charles Rolph ("the applicant") has applied to

the Court by way of appeal pursuant to subs.44(1) of the

Administrative Appeals Tribunal Act 1975 (Cth) from decisions

I I

of the Administrative Appeals Tribunal ("the AAT") given on 19

October 1992. The AAT decided -

(a)	that the decision of the Social Security Appeals Tribunal ("the SSAT") given on 29 May 1991 affirming the decision by a delegate of the respondent cancelling the applicant's unemployment benefit as from 8 March 1991 be affirmed;
(b)	that the applicant was not entitled to payment of unemployment benefit for the period 22 January 1991 to 4 February 1991;
(c)	that the decision of the SSAT given on 19 September 1991 setting aside the decision by a delegate of the respondent not to pay sickness benefit to the applicant and substituting a decision that the applicant "would be likely to be qualified for newstart allowance for the purposes of 6.666 of the

Social Security Act 1991" be set aside and, in lieu

thereof, it be decided that the applicant was not qualified for sickness benefit for the period 24 June 1991 to 30 June 1991 or for sickness allowance for the period 1 July 1991 to 29 August 1991.

The proceeding in this Court was instituted by the filing of an application on 11 November 1992. The matter came before the Court on a number of occasions when, on the application of the applicant, the matter was adjourned, principally on the ground that the applicant was endeavouring to obtain legal aid. Those endeavours being unsuccessful, a hearing date was set.

When the matter came on for hearing the applicant, who was not legally represented, made a further application that the matter be adjourned indefinitely. That application had two bases. The first was that I should disqualify myself from hearing the matter on two grounds. One was that, in 1977 and 1978, the Crown Solicitor for the Commonwealth, an office

which I then held, was the solicitor on the record in respect	of proceedings against the applicant for the recovery of an
unpaid telephone account. The other was that, in 1984, as a Judge of this Court, I heard and determined, adversely to the applicant, an application by him for an order under s.171G of the Conciliation and Arbitration Act 1904 (Cth) declaring that the application of s.171F of that Act to certain motions declared carried, and a certain declaration made, at a special meeting of the Tasmanian Branch of the Transport Workers' Union of Australia held on 7 August 1976 (which had the effect of removing the applicant from the position of Branch Secretary of that Branch) would do substantial injustice having regard to the interests of the Union, members or creditors of the Union or persons having dealings with the Union.
The second basis upon which an indefinite adjournment of the proceeding was sought was that the matter should not proceed pending the due determination of a petition by the applicant to the Crown, made in or about September 1991, for a Royal Commission of Inquiry into matters related to various judicial proceedings in which the applicant had been engaged in relation to his removal from the position of Branch Secretary of the Tasmanian Branch of the Transport Workers' Union of Australia.
I declined to disqualify myself from hearing the matter and refused the application for the further adjournment of the proceeding. Thereupon, the applicant, after making a
which the application was founded, withdrew and took no general statement to the Court in support of the grounds upon
further part in the hearing. He expressly stated, however, that he did not wish to discontinue the proceeding. The hearing then proceeded in his absence.
Decisions in relation to unem~lovment benefit
Although the Social Security Act 1947 (Cth) ("the 1947 Act") was repealed by 6.3 of the Social Security
(Rewrite) Transition Act 1991 (Cth) which came into operation

on 1 July 1991, that is to say after the decision of the SSAT on 29 May 1991 and before the applicant lodged with the AAT on 10 July 1991 an application to review the decision of the SSAT, the matter proceeded before the AAT, with the concurrence of counsel for both parties, the present applicant being then legally represented, on the basis that the issues in relation to the applicant's entitlement to unemployment benefit were to be determined by reference to the provisions of the repealed Act. In what follows I refer to the provisions of the 1947 Act as in force at the relevant time.

Part XI11 of the 1947 Act made provision with respect to, inter alia, unemployment benefit. Section 116, a provision within Part XIII, relevantly provided:

"116. (1) Subject to this Part, a person (not being a person in receipt of a pension under Part IV or V or a benefit under Part VI) is qualified to receive an unemployment benefit in respect of a period (in this section referred to as the 'relevant period') if, and

only if -

(a) . ...

(b) ....
(c) the person satisfies the Secretary that -

(i)throughout the relevant period he was unemployed and was capable of undertaking, and was wllling to undertake, paid work that, in the opinion of the Secretary, was suitable to be undertaken by the person; and

(ii)he had taken, during the relevant period, reasonable steps to obtain such work; and

(d) ...."

It was not in dispute that the applicant was not at the relevant time in receipt of a pension under Part IV or V or a benefit under Part V1 of that Act.

Section 126 relevantly provided that, subject to subs.(2), where a person was not taking reasonable steps to obtain employment, an employment benefit was not payable to the person in respect of such period as was determined by the Secretary in writing. By subs.(2), the period referred to was to be not less than 2 weeks.

Section 168 provided, inter alia, that, if -

(a)	having regard to any matter that affected the payment of a benefit under the Act;
(b)	by reason of the refusal or failure of any person to comply with a provision of the Act; or

(c) for any other reason,

the Secretary determined that a benefit should be cancelled,	the Secretary might, by determination, cancel the benefit with
effect from the date of the determination or such later date as was specified in the determination.
In relation to the applicant's claim to be paid unemployment benefit in respect of the period 22 January 1991 to 4 February 1991, the AAT, in its reasons for decision, recorded the agreement between the parties that the sole issue before it was "whether or not Mr Rolph was, pursuant to s.126(1) of the Social Security Act 1947, taking reasonable steps to obtain employment during the abovementioned period".
In relation to the application to review the decision to cancel the applicant's unemployment benefit from 8 March 1991, the AAT recorded the agreement between the parties that the sole issue before it was whether it was satisfied, in terms of s.l16(1)(d) of the 1947 Act, that, "for the period 22 January 1991 to 7 March 1991, Mr Rolph was willing to undertake paid work that, in the opinion of the Tribunal (as in the shoes of the delegate), was suitable to be undertaken by Mr Rolph and whether he had taken during the said period reasonable steps to obtain such work".
pecisions in relation to sickness benefit or allowance
On 2 July 1991, that is to say after the Social Security Act 1991 (Cth) ("the 1991 Act") came into operation,
medical certificate dated 25 June 1991 which stated that the the applicant lodged a claim for sickness benefit based upon a applicant had been seen on that day and the previous day, that
he was suffering from a reactive stress syndrome and that he was temporarily unfit for employment and would remain so until 10 August 1991. In evidence before the AAT were medical certificates which certified that the applicant remained unfit for employment after that date.
In relation to the applicant's claim for payment of sickness benefit, the AAT accepted that the applicant had been incapacitated for work since 24 June 1991 and, in its reasons for decision, recorded the agreement between the parties that the issues for determination were -

whether during the period 24 June 1991 to 30 June 1991 the applicant would, under the provisions of the 1947 Act, but for the incapacity for work due to his agreed sickness during that period, have been willing to undertake paid work suitable to be undertaken by him and would have taken reasonable steps to obtain such work;

whether during the period 1 July 1991 to 29 August 1991 the applicant would, under the provisions of the 1991 Act, but for his incapacity for work due to his agreed sickness during that period, have been actively seeking and willing to undertake paid work that in the opinion of the Tribunal would have been suitable to be undertaken by him.

It thus appears that, in deciding the issue relating to the period 24 June 1991 to 30 June 1991, the AAT applied the provisions of the 1947 Act and, in deciding the issue relating to the period 1 July 1991 to 29 August 1991, it applied the

provisions of the 1991 Act.

For present purposes, it is sufficient to refer to so much of 8.117 of the 1947 Act as provided that a person was qualified to receive a sickness benefit in respect of a period (referred to as "the relevant period") if, inter alia, the person satisfied the Secretary that, throughout the relevant period, he was incapacitated for work by reason of sickness (being an incapacity of a temporary nature) and -

(i) that he thereby suffered a loss of salary, wages or other income; or

(ii)that he would, but for the incapacity, be qualified to receive an unemployment benefit in respect of the relevant period.

Reference has already been made to 6.116 of the 1947 Act in so far as it relevantly prescribed the circumstances in which a person was qualified to receive an unemployment benefit.

Section 666 of the 1991 Act as in force prior to 12 November 1991 relevantly provided:

"666. (1) A person is qualified for a sickness benefit in respect of a period if:

(a)	the person satisfies the Secretary that the person was, or is likely to be, incapacitated for work throughout the period because of sickness or an accident; and
(d)	the incapacity for work is, or is likely to be, of a temporary nature; and

(c) either:

(i) the person satisfies the Secretary likely to suffer, a loss of salary, wages or other income of a similar nature because of the incapacity for work; or that the person has suffered, or is

(ii)  the person satisfies the Secretary that, if the person were not incapacitated for work, the person would have been, or would be likely to be, qualified for job search allowance or newstart allowance in respect of the period; or

(iii)    . . . .; and

(3) A person is not qualified for a sickness benefit in respect of a period if the person is qualified for a job search allowance under section 514, or a newstart allowance under section 594, in respect of the period."

For present purposes it is sufficient to note that the qualifications for a job search allowance or a newstart allowance in respect of a period included the qualification that, throughout the period, the person satisfied the activity test or, in the case of a job search allowance, was not required to satisfy that test (see 88.513 and 593 respectively). A person satisfied the activity test in respect of a period if the person satisfied the Secretary that, throughout the period, the person was actively seeking and willing to undertake paid work that in the opinion of the Secretary was suitable to be undertaken by the person (see 66.522 and 601).

peasons for decision of AAT

The AAT had before it various documents and the oral evidence of the applicant. The following statement of the	applicant's history is taken from the reasons for decision of
the AAT:

"The applicant was born on 30 April 1943 in Sydney. After leaving school in Sydney at the age of 14, he went with his parents to Berry, New South Wales and worked on the family dairy farm. After some 4 years on the family farm, Mr Rolph worked as a 'contract dairyman' for a further two years.

At age 20 he married and moved to Sydney working in labouring occupations for North Sydney and Mosman County [sic] Councils for approximately 6 months. After some time working as a farm labourer in the northwest of New

South Wales, Mr Rolph and his wife rejoined his parents who had moved to Bungendore, a village close to Canberra.

In 1964, at the age of 21, he became a truck driver in the ACT working for a pre-mixed concrete firm.

The applicant informed the Tribunal that he was instrumental ' in the formation of an ACT Lorry Owner/Drivers' Association - as its Secretary on a part- time unpaid basis. He continued in this activity - in contact with the trade union movement and the C h A Commission until 1972 when he was asked to consider a position in the Transport Workers Union ('TWU') in Tasmania.

He applied for and was elected to the full-time position of Branch Secretary of the TWU in Tasmania in 1972.

Four years later (in August 1976) he was dismissed from the office of Branch Secretary TWU Tasmania, at a meeting he did not attend. Mr Rolph carries the conviction that he was wrongfully dismissed from office. He has initiated litigation more or less continuously since his dismissal in an attempt (to date unsuccessfully) to have 'the organisation conciliate my position'.

Two months after his dismissal (October 1976), Mr Rolph commenced receiving unemployment benefits which were paid continuously until the decisions now under review were made.

Since October 1976 Mr Rolph has moved on a number of occasions. Apart from relatively short periods when he resided in Bungendore, Rossi and Tasmania; he has resided in Towamba (1977 to 1985) and at Cathcart (since 1986). Both of these last mentioned locations are remotely situated - Towamba is 25 miles west of Eden on the South	Coast of NSW and Cathcart is approximately 12 miles from	Bombala in South East NSW. Cathcart is a small village
of approximately 20 dwellings and a population of approximately 100. Bombala is basically a timber and fanning (sheep and cattle) centre. The largest regional centre (Cooma) is some 70 miles distant from Cathcart."

After referring in its reasons for decision to an affidavit of the applicant sworn on 7 July 1992 and to his oral evidence, the AAT said:

"16. The Tribunal has had regard to the totality of that which has been placed before it regarding the agreed issues. This of course, includes the evidence on oath from Mr ~olph and the submissions of each of the parties. We gained the distinct impression from closely observing Mr Rolph and listening to his evidence, that for some time now and certainly in relation to each of the relevant periods in question, he has not been in any real sense willing to undertake any paid suitable work and we so find. The skills of Mr Rolph as revealed in the evidence before the Tribunal indicate that suitable work for him to undertake would probably be in the following areas, namely: clerical, labouring and work involving motor vehicle mechanical repairs and we so find. We have accepted Mr Briggs' submissions regarding work suitable for Mr Rolph to undertake. We are clearly of the view and so find on the evidence Mr Rolph gave, and from our observations of him when giving evidence, that for quite some time now and certainly for the periods in question, he simply does not want paid employment and accordingly does not really seek it. What he does seek however, is to continue to pursue avenues to redress his perceived grievances. His past and present efforts in this regard effectively take up most of his time. He however, also seeks to continue to be paid social security benefits. His efforts in relation to securing unemployment benefit certainly for the relevant periods in question, indicate in our opinion, a course of action designed to ensure payment to allow him to pursue his all consuming interest regarding alleged grievances without providing any real chance of any paid work resulting from the efforts in question and we so find. Examples of this are to be found in paragraph (l)(a) and (b) of Exhibit A1 when looked at in the light of Mr Rolph's evidence regarding exhibit A1 and Attachment A contained in exhibit AS.

In relation to the periods in question, we are clearly of the opinion and so find that Mr Rolph has not been taking reasonable steps to obtain and has not been actively

obtain work fall far short of what should be the case,	seeking suitable paid work. We find that his efforts to
bearing in mind the particular circumstances of this case. They clearly fall into the category of what can only be described as token efforts.
17. Regarding Mr Rolph's evidence, we indicate that we do not accept those aspects of his evidence where he suggests that he has been, at all times, willing to undertake suitable paid work and has been actively taking steps to obtain it. We found this evidence to be unimpressive to say the least. We just do not believe his assertions in this regard. Regarding the said periods when the applicant's sickness rendered him incapable of work, we are of the view that if he had been able to work, he would not have been willing to undertake suitable paid work nor taken reasonable steps to obtain such work or actively seek it."

Dresent a~~lication

The grounds upon which the applicant relies, as expressed in the application, are that the AAT failed to observe the rules' of natural justice, failed to take into account the evidence before it and failed to take into account relevant facts and that the members of the AAT were not "professionally or otherwise duly competent or qualified" to determine the issues raised by the applications before them.

I have read and carefully considered not only the decision of the AAT but the whole of the material that was before it, including the oral evidence of the applicant and the submissions made by counsel then appearing on his behalf. I am satisfied that there was ample evidence before the AAT to justify the findings of fact which it made and the conclusions to which it came. I am unable to discern any error on the part of the AAT that would warrant the intervention of this Court.

Notwithstanding the form in which the application is cast, the applicant is, in substance, seeking a review on the merits of the decisions of the AAT. That is, of course, not a matter for this Court, the appeal to this Court being limited to questions of law.

I should, however, record that, in the course of her submissions, Mrs Bonsey on behalf of the respondent, very fairly if I may say so, suggested that, as the claim for sickness benefit was not lodged until after the 1991 Act had come into operation, the AAT may have fallen into error in applying the provisions of the 1947 Act to so much of the claim as related to the period 24 June 1991 to 30 June 1991. I have, however, found it unnecessary to express a definitive view on this aspect of the matter as it is plain to demonstration that, in the light of the findings that the AAT made, it would not advantage the applicant to have that part of the claim determined by reference to the provisions of the 1991 Act rather than the provisions of the 1947 Act.

A further minor error in the decision of the AAT

should be noted. In relation to the period 1 July 1991 to 29

August 1991, the AAT decided that the applicant was not qualified for "sickness allowance". In this regard it is to be noted that the change of name from sickness benefit to

the coming into operation of the relevant provisions of the	sickness allowance did not occur until 12 November 1991 upon	Social Security (Disability and Sickness Support) Amendment
Act 1991 (Cth).
For the reasons set out above, the application is dismissed. The applicant must pay the respondent's costs of the application other than the costs of the motion notice of
which was given on 7 December 1992 and of the hearings on 11 and 21 December 1992.

I certify that this and the preceding 13 pages are a true copy of the Reasons for Judgment herein of the Honourable

Dated: 12 September 1994

The applicant appeared in person.

Counsel for the respondent : Mrs J. Bonsey

Solicitor for the respondent : Australian Government

Solicitor

Date of hearing : 6 December 1993