Secretary, Department of Social Security v Cosmano, Anna Secretary, Department of Social Security v Cosmano, Carmine

[1998] FCA 1710

FEDERAL COURT OF AUSTRALIA

SOCIAL SECURITY  - appeal against AAT decision to grant disability support pension from 1989 – whether error of law in granting disability support pension from date preceding introduction of disability support pension – whether findings wholly unsupported by the evidence

Social Security Act 1947 (Cth)
Social Security Act 1991 (Cth)
Social Security (Disability and Sickness Support) Amendment Act 1991 (Cth)
Acts Interpretation Act 1901 (Cth) s 8

Re Simek and Secretary, Department of Social Security (1991) 24 ALD 727 followed
Re Cirkovski and Secretary, Department of Social Security (1992) 25 ALD 564 followed
Borkovic v Minister for Immigration etc (1981) 39 ALR 186 followed
Commissioner for Government Transport v Adamcik (1961) 106 CLR 292 followed

SECRETARY, DEPARTMENT OF SOCIAL SECURITY v ANNA COSMANO
NO. TG 4 OF 1998

SECRETARY, DEPARTMENT OF SOCIAL SECURITY v CARMINE COSMANO
NO. TG 5 OF 1998

HEEREY J
23 DECEMBER 1998
MELBOURNE (HEARD IN HOBART)

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TG 4  of  1998

BETWEEN:	SECRETARY DEPARTMENT OF SOCIAL SECURITY APPLICANT
AND:	ANNA COSMANO RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TG 5  of  1998

BETWEEN:	SECRETARY DEPARTMENT OF SOCIAL SECURITY APPLICANT
AND:	CARMINE COSMANO RESPONDENT

JUDGE:	HEEREY J
DATE:	23 DECEMBER 1998
PLACE:	MELBOURNE (HEARD IN HOBART)

THE COURT ORDERS THAT:

1. In proceeding TG 5 of 1998:
              (a)       the decision of the AAT dated 6 March 1998 be set aside;
              (b)       the matter be remitted to the AAT to be determined according to law; and
              (c)       there be no order as to costs.

2. In proceeding TG 4 of 1998:
              (a)       the decision of the AAT dated 6 March 1998 be set aside;

   (b)the respondent’s entitlement to an associated wife pension be determined following the ascertainment of Mr Carmine Cosmano’s entitlements; and

   (c)there be no order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TG 4 of 1998

BETWEEN:	SECRETARY DEPARTMENT OF SOCIAL SECURITY APPLICANT
AND:	ANNA COSMANO RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TG 5  of  1998

BETWEEN:	SECRETARY DEPARTMENT OF SOCIAL SECURITY APPLICANT
AND:	CARMINE COSMANO RESPONDENT

JUDGE:	HEEREY J
DATE:	23 DECEMBER 1998
PLACE:	MELBOURNE (HEARD IN HOBART)

REASONS FOR JUDGMENT

TG 5 of 1998 is an appeal by the Department of Social Security (“the Department”) against an AAT decision that Mr Carmine Cosmano is entitled to a disability support pension payable from 28 July 1989.  The Department agrees that Mr Cosmano is currently entitled to a disability support pension, but says he has only been entitled since 28 July 1994.

In a related proceeding, TG 4 of 1998, Mr Cosmano’s wife, Anna Cosmano, claims an associated wife pension for the same period.  As Mrs Cosmano’s pension is entirely dependent upon her husband receiving a pension, I will only deal with Mr Cosmano’s claim in these reasons.

There was no appearance on behalf of the Cosmanos in either of their respective proceedings.  However counsel for the Department informed me that the Cosmanos were made aware of the hearing date.

Social security legislation

This proceeding is affected by three social security legislative schemes:

• Social Security Act 1947 (Cth) (“1947 Act”);

• Social Security Act 1991 (Cth) (“1991 Act”); and

• Social Security (Disability and Sickness Support) Amendment Act 1991 (Cth) (“1991 Amending Act”).

Division 3 of Pt IV of the 1947 Act governed the payment of invalid pensions from 1947 until 1 July 1991.  From then on, s 94 of the 1991 Act was the applicable legislation.  Invalid pensions were payable under both Acts to persons with an 85% permanent incapacity for work.  Section 5 of Sch 1A of the 1991 Act contained the following savings and transitional provisions:

“(1) If:

(a)   a person has lodged a claim for a pension, benefit or allowance under the 1947 Act before 1 July 1991; and

(b)   the claim has not been determined before 1 July 1991;

the claim has effect from 1 July 1991 as if it were a claim for a corresponding pension, benefit or allowance under this Act.

…

(3) If:

(a)   subclause (1) applies to a claim; and

(b)   the claim is granted under this Act;

the determination granting the claim may have a date of effect before 1 July 1991.
(4) If:

(a)   subclause (1) applies to a claim; and

(b)   the claim is granted under this Act; and

(c)   the determination granting the claim has a date of effect before 1 July 199l;

the payment of instalments during the period that starts on the date of effect of the determination and ends on 30 June 1991 is to be made under this Act and the person making the claim has no rights under the 1947 Act arising from the claim.”

On 12 November 1991 the 1991 Amending Act amended the 1991 Act.  The 1991 Amending Act altered the previous system in a fundamental way.  It abolished the invalid pension, and in its place established the disability support pension.  While an applicant needed to prove an 85% permanent incapacity to qualify for an invalid pension under the previous two Acts, the 1991 Amending Act provided that an applicant only need prove 20% permanent incapacity to qualify for a disability support pension.  The 1991 Amending Act did not contain any transitional provisions in respect of invalid pensions.

The other relevant provision in this proceeding is s 8 of the Acts Interpretation Act 1901 (Cth), which deals with the effect of a repealing Act. It provides:

“Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:

(a)revive anything not in force or existing at the time at which the repeal takes effect; or

(b)affect the previous operation of any Act so repealed, or anything duly done or suffered under any Act so repealed; or

(c)affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or

(d)affect any penalty forfeiture or punishment incurred in respect of any offence committed against any Act so repealed; or

(e)affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid;

and any such investigation legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed.”

Background

Mr Carmine Cosmano is an Italian resident who lived in Australia from 1963 to 1983.  During that time, he was injured while working for a company in Preston, Victoria.

On 28 July 1989 Mr Cosmano claimed an invalid pension.  For unexplained reasons, the Department did not make a decision as to the claim until 24 April 1994.  The claim was then rejected.  Following the affirmation of that decision by both the Department and the Social Security Appeals Tribunal, Mr Cosmano appealed to the AAT on 27 December 1995.  In February 1997 the Department independently conducted another internal review of the claim and subsequently granted Mr Cosmano a disability support pension (not an invalid pension) as from 29 December 1994. The Department chose that date based upon medical evidence relating to Mr Cosmano’s condition.  Nevertheless Mr Cosmano pursued his appeal to the AAT.

In its decision dated 6 March 1998, the AAT pointed out that the grant of an invalid pension can date to a time before 1 July 1991: s 5(3) and (4) of Sch 1A of the 1991 Act.  The AAT said that in arguing its nominated date of effect (29 December 1994), the Department relied on the medical evidence of a Dr Morro in Italy.  However, as a matter of fact the AAT found that there was evidence to establish that Mr Cosmano was unfit to work as early as 4 January 1990.  Therefore, the AAT had “no qualms in accepting that Mr Cosmano’s ‘condition’ was such that his date of effect for pension purposes was his original date of application, that is 28 July 1989” (AB 169).  The AAT therefore concluded that “Mr Cosmano’s qualifying date of effect for grant of disability support pension is 28 July 1989” (AB 169) (emphasis added).

The Department appeals against that decision.

Department’s grounds of appeal

The Department effectively appeals on two grounds:

• the AAT erred in law in holding that Mr Cosmano was entitled to be paid a disability support pension even though he applied under the 1947 Act (which relates to invalid pensions); and

• the AAT erred in making a finding as to Mr Cosmano’s medical condition wholly unsupported by the evidence.

1. Which type of pension?
   This question requires consideration of the transitional provisions and the effect of s 8 of the Acts Interpretation Act.

When Mr Cosmano applied for an invalid pension, the 1947 Act was in operation.  However, the Department did not make a decision as to his application until 1994, when the 1991 Act, as amended by the 1991 Amending Act, was in operation.

Section 5(1)(a) of Sch 1A of the 1991 Act provided that a claim lodged under the 1947 Act but not determined before 1 July 1991 had the effect as if it were a claim for a corresponding pension under the 1991 Act.  Therefore, Mr Cosmano’s claim (lodged 28 July 1989) was to be treated as if it were a claim under the 1991 Act (see Re Simek and Secretary, Department of Social Security (1991) 24 ALD 727 at 729; Re Cirkovski and Secretary, Department of Social Security (1992) 25 ALD 564 at 569). The claim could have a date of effect before 1 July 1991, but such a claimant no longer had any rights under the 1947 Act arising from the claim: s 5(3) and (4) of Sch 1A. Section 8 of the Acts Interpretation Act had no operation at that stage as the 1991 Act had expressed a contrary intention  (Re Simek at 729; Re Cirkovski at 569).

As already mentioned, the 1991 Amending Act abolished the concept of invalid pensions and replaced it with disability support pensions. It did not contain any transitional provisions. I therefore turn to s 8 of the Acts Interpretation Act to establish its effect (see Re Simek at 730; Re Cirkovski at 571).  By that section, unless the contrary intention appears (and none does), the repealing Act “shall not … affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed” (s 8(c)).  Therefore, despite the enactment of the 1991 Amending Act, the position as to Mr Cosmano’s pension remained as it was before that Act came into force.  He continued to be entitled to be assessed as to his eligibility for an invalid pension under the 1991 Act.  However the AAT decided that he was entitled to a disability support pension going back to 1989.  This was an error.  There could be no question of preserving a right which did not exist prior to 12 November 1991.

1. Evidence of medical condition
   Counsel for the Department submitted that the AAT’s decision was not supported by any medical evidence of the doctors who supplied reports to the Department, nor by medical evidence in proper form.  This ground of appeal concerns factual questions which it is impermissible for me to enter on judicial review: see Borkovic v Minister for Immigration etc (1981) 39 ALR 186. It is within the province of a tribunal of fact to prefer the evidence of one medical witness even though it might seem contrary to the great weight of medical evidence: Commissioner for Government Transport v Adamcik (1961) 106 CLR 292 at 305-6.

A problem which arises, however, is that the AAT failed to make any precise finding as to the degree to which Mr Cosmano had an incapacity.  Rather than expressing his incapacity as a percentage (as is required in the relevant Acts), it merely says that Mr Cosmano is “suffering from medical problems that are sufficiently severe as to stop him undertaking his normal occupation and that other occupations are not available to him”, and that “the weight of medical evidence from the examining doctors in Italy confirms that Mr Cosmano’s injuries were evident before the date of effect selected by the respondent …[i]ndeed … as far back as 4 January 1990”.

It is difficult to discern from the AAT’s decision under which piece of legislation it granted a disability support pension.  As the eligibility requirements differ under the differing pieces of legislation, the matter will need to be remitted to the AAT to determine precisely the degree of incapacity which Mr Cosmano suffered at the relevant dates.

Orders
I will therefore order in proceeding TG 5 of 1998 that the decision of the AAT dated 6 March 1998 be set aside, and that the matter be remitted to the AAT to be determined according to law. 

In proceeding TG 4 of 1998, I order that Mrs Cosmano’s entitlement to receive an associated wife pension be determined following the ascertainment of Mr Cosmano’s entitlements. 

There will be no order as to costs.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey

Associate:

Dated: 23 December 1998                 

Counsel for the Applicant:	Mr Peter Bowen
Solicitor for the Applicant:	Australian Government Solicitor
No appearance by the Respondents
Date of Hearing:	11 December 1998
Date of Judgment:	23 December 1998