Russo, Frank v Secretary, Department of Social Security
[1997] FCA 716
•1 Aug 1997
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No VG 92 of 1995
GENERAL DIVISION )
ON APPEAL FROM A DECISION OF THE DEPUTY PRESIDENT OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR B.M. FORREST
BETWEEN:FRANK RUSSO
Applicant
AND:SECRETARY, DEPARTMENT OF
SOCIAL SECURITY
Respondent
CORAM: RYAN J
DATE: 1 AUGUST 1997
PLACE: MELBOURNE
MINUTES OF ORDER
THE COURT ORDERS:
That the application be dismissed.
That the applicant pay the respondent's costs such costs to be taxed in default of agreement.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No VG 92 of 1995
GENERAL DIVISION )
ON APPEAL FROM A DECISION OF THE DEPUTY PRESIDENT OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR B.M. FORREST
BETWEEN:FRANK RUSSO
Applicant
AND:SECRETARY, DEPARTMENT OF
SOCIAL SECURITY
Respondent
CORAM: RYAN J
DATE: 1 AUGUST 1997
PLACE: MELBOURNE
REASONS FOR JUDGMENT
This is an application by way of appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") constituted by Deputy President Forrest given on 16 November 1995 affirming the decision given by the Social Security Appeals Tribunal ("the SSAT") on 13 December 1993.
The Tribunal on that occasion identified the question before it as being whether the applicant, Mr Russo, was entitled to a Supporting Parent Benefit under the Social Security Act as in force from time to time in respect of a period before 1 November 1984 when he was in fact granted a Supporting Parent Benefit.
Mr Russo contended before the SSAT that he was entitled to a Supporting Parent Benefit in respect of the period from 1981 to 1 November 1984. The SSAT rejected that contention and Mr Russo appealed against that rejection to the Tribunal.
The evidence before the Tribunal disclosed that Mr Russo had, on 22 October 1984, applied to the Department of Social Security ("the Department") for a pension. In that application he did not claim for any arrears of payment. He listed five children as being under 16 and in his care or students aged from 16 to 24 years who were dependent on him. The Tribunal also found as a fact that, before lodging that application, Mr Russo had from 15 November 1981 been in receipt of a Family Allowance. On 21 January 1982 Family Allowance was claimed for two children and on 24 January 1983 for an additional three children. From 1 November 1984 a Supporting Parent Benefit was granted to Mr Russo.
There is evidence of a claim for a Supporting Parent's Benefit made on 26 January 1982, file number R666193X. That claim was rejected because the applicant was living in a defacto relationship. No review of that rejection was sought by Mr Russo. The Tribunal was satisfied that no documentary or other evidence had been adduced which would indicate that Mr Russo had an entitlement earlier than when the grant was made on 1 November 1984.
Mr Russo's complaint as articulated to this Court appeared to be that, although he had not been shown to have made a formal application, the Department had been apprised of his circumstances, including the fact that some of his children had returned to his care and custody, and should have prompted him to make an application or have granted him the benefit in any event. The obstacles to this complaint's succeeding are, first, that the Act requires a claim to be in writing, and, secondly that for part of the period Mr Russo was ineligible in any event as he was in receipt of unemployment benefits.
The Social Security Act 1947 as applicable to Mr Russo
The Social Services Act 1947 was amended by the Social Services Legislation Amendment Act 1982, No. 37 of 1982, (assented to 2 June 1982 and pursuant to s 2 came into operation on that date). Section 5 amended the short title of the Act to "Social Security". Hereafter the Social Security Act 1947 shall be referred to as "the Act".
The Social Services Amendment Act 1977, No.159 of 1977, (assented to on 10 November 1977 and by s 2(1) came into operation on that date) inserted in Part IVAAA the following provisions:
83AAF. Where a benefit is granted, it shall be paid from a date determined by the Director-General, but the date so determined shall not be prior to the date on which the claim for the benefit was lodged or later than the day that, for the purposes of Part III, is the first pension pay-day occurring after the day on which the claim was lodged, except where the determination of the claim has been delayed by neglect or default on behalf of the claimant, in which case the Director-General shall fix such later date of commencement as he considers reasonable in the circumstances.
83AAG. Section 61 and Divisions 3A, 4, 5 (other than section 68), 6 and 7 of Part IV apply in relation to a beneficiary as if the beneficiary were a widow for the purposes of that Part.
Section 83AAG(2) was inserted by s 17 of the Social Services Amendment Act 1978 [No. 128 of 1978] (assented to on 26 October 1978 and by s 2 came into force on that date). Section 83AAG(2) provides:
(2) For the purposes of the application, by virtue of sub-section (1) of this section, of section 75 in relation to a beneficiary, the reference in that section to section 59AA shall be read as a reference to section 83AABA.
Since Mr Russo's application for Supporting Parent's Benefit was lodged on 22 October 1984, the view was taken that s 83AAF precluded the Director-General from determining as the date from which the benefit should be paid any date earlier than 22 October 1994.
By s 38 of the Social Security Legislation Amendment Act 1983, [No. 69 of 1983] (which was assented to on 24 October 1984 and by s 2(1) came into operation on that date) ss 135TA and 135TB were inserted into the Act.
Those sections provide:
135TA. (1) The grant or payment of-
(a)a pension under Part III or IV (not including an allowance under section 26, 30A or 65A);
(b)a benefit under Part IVAAA or IVA;
(c)an allowance under Part V or VI;
(d)a double orphan's pension under Part VIA;
(e)a handicapped child's allowance under Part VIB;
(f)a benefit under Part VII (not including an allowance under section 112A); or
(g)a mobility allowance under Part VIIB,
shall not be made except upon the making of a claim for that pension, benefit or allowance.
(2) The Director-General may require a person who is qualified to receive an allowance under Part VIIA (other than an allowance under section 133JA) to make a claim for the allowance.
(3)The Director-General shall, subject to this Act, determine claims.
Making and lodgment of claims, &c.
135TB. (1) A claim shall be made in writing in accordance with a form approved by the Director-General and shall be lodged-
(a)at an office of the Department in Australia; or
(b)at a place (whether inside or outside Australia), or with a person (whether inside or outside Australia), approved for the purpose by the Director-General.
(2)Where, on the day on which a claim for-
(a)a pension under Part III or IV; or
(b)a benefit under Part IVAAA,
is lodged, the claimant is not qualified to receive the pension or benefit but the claimant becomes qualified to receive the pension or benefit on a day (in this sub-section referred to as the "relevant day") occurring not later than 3 months after that first-mentioned day, the Director-General may determine that the claim be treated as having been lodged on the relevant day, and, upon the making of that determination, the claim shall, for the purposes of section 39, sub-section 68 (1) or section 83AAF, as the case requires, be deemed to have been lodged on the relevant day.
Mr Russo was unable to show that a claim in writing had been made that was not considered by the Department. Rather, he contends that the Department was aware of his circumstances and should have prompted him to apply. There was also some evidence that an enquiry had been made of a counter officer of the Department, but no claim form is shown to have come into existence. Accordingly, for Mr Russo's argument to succeed, ss 135TA and 135TB of the Social Security Act 1947 in operation from 24 October 1984 requiring a claim to be made in writing would have to be construed as merely directory.
In Formosa v Secretary, Department of Social Security 15 ALD 657, Davies and Gummow JJ in a joint judgment identified the principal sections of the Act requiring their consideration as ss 135TA, 135TB and 135TBA. It was then noted, at 658:
consequent upon the Social Security Amendment Act 1987 s 50, and with effect from 1 July 1987, those sections were renumbered respectively as ss 158, 159 and 160. The only changes have been in enumeration of sections, and the substantive provisions had not been altered. Accordingly, we shall refer to these and other provisions of the Act as they stand in the current reprint.
Their Honours went on to conclude that the requirement expressed in s 159(1) [the counterpart of s 135TB] that the claim be made in writing was mandatory rather than directory, observing at 664:
In our view, the requirement in s.159(1) of the Social Security Act that a claim shall be made in writing is of central importance to the administration of the legislation and the sub-section cannot, consistently with the scope and object of the statute, be read as if a claim for a pension is sufficiently made if made orally at an office of the Department to an officer of the Department. The requirement that claims shall be made in writing is not to be characterised as a "mere matter of machinery for carrying out the undoubted purposes of the Act" (cf Grunwick Processing Laboratories Ltd v Advisory Conciliation and Arbitration Service [1978] AC 655 at 690).
I am bound to adopt the same construction.
Before the enactment of ss 135TA and 135TB the requirement that a claim be in writing was imposed by s 66 which was made applicable to Mr Russo's circumstances by s 83AAG(1).
At the commencement of the period to which Mr Russo's claim is related s 66 which was to be found in Division 4 of the Act provided:
A claim for a widow's pension -
(a) shall be made in writing in accordance with a form approved by the Director-General;
(b)shall be supported by such declaration as is approved by the Director-General; and
(c) shall be lodged with the Registrar whose office is nearest to the place of residence of the claimant or, if the claimant is outside Australia, at a place approved for the purpose by the Director-General.
Paragraph (c) of s 66 was amended by the Statute Law Revision Act 1981 [No. 61 of 1981] which was assented to on 12 June 1981 and by s 2 came into operation on that day and was thereafter in these terms:
(c) shall be lodged with a Registrar or, if the claimant is outside Australia, at a place approved for the purpose by the Director-General.
That paragraph was in operation for the period to which Mr Russo's claim is related until it was repealed when ss 135TA and 135TB were inserted. The reasoning of Davies and Gummow JJ quoted above compels me to conclude that the use in the paragraph of the word "shall" and the intention imputed by their Honours to the legislature connotes a mandatory requirement that any claim by Mr Russo had to be in writing.
The Tribunal found that no claim had been lodged as contemplated by s 83AAF so as to allow the Director-General to determine a date for payment of a benefit which was earlier than 1 November 1984. No error of law is discernible in that finding of the Tribunal. Accordingly, as Mr Russo did not make a claim in writing his application by way of appeal must fail.
Submissions were made by Mr Russo to the effect that various documents had been destroyed. Even if, contrary to the finding of the Tribunal, a written claim had been lodged, Mr Russo was ineligible for Supporting Parent's Benefit for parts of the earlier period because he was receiving unemployment benefits: see s 83AAA.
The Social Services Amendment Act 1977 No. 159 of 1977 which was assented to on 10 November 1977 and came into force on that date by s 2 repealed Part IVAAA of the Principal Act as previously in force and substituted, by s 3, the following Part so far as is relevant:
83AAA. (1) In this Part, unless the contrary intention appears-
"beneficiary" means a benefit under this Part, and includes an allowance by way of supplementary assistance;
"child" means a child under the age of 16 years;
"supporting father" means a man (whether married or unmarried)
who-
(a)has the custody, care and control of a child who has attained the age of 6 months, being a child-
(i)of whom that man is the father; or
(ii)in the case of a man who is a married man living apart from his wife or a man who has ceased to live with a woman as her husband on a bona fide domestic basis although not legally married to her - who was an adopted child of, or in the custody, care and control of, that man on the relevant date;
(b)is not living with, and for a period of at least 6 months has not been living with, a woman as her husband on a bona fide domestic basis although not legally married to her; and
(c)in the case of a married man - is living apart from his wife and has been so living apart for a period of at least 6 months,
but does not include a man who is qualified to receive a pension under Part III, or a benefit under Part VII, of this Act, a service pension under the Repatriation Act 1920 or an allowance under the Tuberculosis Act 1948 or is in receipt of a benefit provided by a State that, in the opinion of the Director-General, is similar to a benefit provided by the State that is an approved benefit within the meaning of the States Grants (Deserted Wives) Act 1968;
Further consequential amendments were made by s 17 of the Social Services Amendment Act 1979 [No. 121 of 1979] to the definition of "supporting father". However, s 83AAA(1) was further amended by s 14 of the Social Services Amendment Act 1980 [No. 130 of 1980] which was assented to on 19 September 1980 and by s 2(1) came into operation on that date. Section 14 provided:
Section 83AAA of the Principal Act is amended-
(a)by omitting the definitions of "supporting father" and "supporting mother" in sub-section (1) and substituting the following definitions:
"`supporting father' means a man (whether married or unmarried)
who-
(a)has the custody, care and control of a child, being a child-
(i)of whom that man is the father; or
(ii)in the case of a man who is a married man living apart from his wife or a man who has ceased to live with a woman as her husband on a bona fide domestic basis although not legally married to her - who was an adopted child of, or in the custody, care and control of, that man on the relevant date;
(b)is not living with a woman as her husband on a bona fide domestic basis although not legally married to her;
and
(c)in the case of a married man - is living apart from his wife,
but does not include a man who is qualified to receive a pension under Part III, or a benefit under Part VII, of this Act, a service pension under the Repatriation Act 1920 or an allowance under the Tuberculosis Act 1948.".
Thus for the period claimed by Mr Russo from 1981 to 1 November 1984, s 83AAA provided:
(1)In this Part, unless the contrary intention appears-
"beneficiary" means a person in receipt of a benefit;
"benefit" means a benefit under this Part, and includes an allowance by way of supplementary assistance;
"child" means a child under the age of 16 years;
"supporting father" means a man (whether married or unmarried) who-
(a)has the custody, care and control of a child, being a child-
(i)of whom that man is the father; or
(ii)in the case of a man who is a married man living apart from his wife or a man who has ceased to live with a woman as her husband on a bona fide domestic basis although not legally married to her - who was an adopted child of, or in the custody, care and control of, that man on the relevant date;
(b)is not living with a woman as her husband on a bona fide domestic basis although not legally married to her; and
(c)in the case of a married man - is living apart from his wife,
but does not include a man who is qualified to receive a pension under Part III, or a benefit under Part VII, of this Act, a service pension under the Repatriation Act 1920 or an allowance under the Tuberculosis Act 1948;
The definition in s 83AAA(1) of "supporting father" thus clearly precluded Mr Russo from obtaining a Supporting Parent's Benefit for those periods during which he was in receipt of unemployment benefits.
Conclusion
For the reasons explained above the Tribunal made no error of law in deciding that Mr Russo was not entitled to be paid a Supporting Parent's Benefit for the period claimed. The application must be dismissed with costs.
I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment of his Honour Justice Ryan.
Associate:
Date:
Counsel for the Applicant : Appearance in person
Solicitors for the Applicant : -
Interpreter for the Applicant : Mr N. Zurzolo
Counsel for the Respondent : Ms A. McMahon
Solicitors for the Respondent : Australian Government Solicitor
Date of Hearing : 29 May 1996
Date of Judgment : 1 August 1997
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