Secretary, Department of Social Security v Di Prinzio, G

[1991] FCA 654

IN THE FEDERAL COURT OF AUSTRALIA )

WESTERN AUSTRALIA DISTRICT REGISTRY ) NO. WAG78 of 1991

GENERAL DIVISION 1

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ON APPEAL from the General ~dministrative Division of the	l?.
Administrative Appeals Tribunal.	tij
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BETWEEN:  SECRETARY. DEPARTMENT
OF SOCIAL SECURITY

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Applicant	l*<
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m:  GENNARO D1 PRINZIO k'.:

Respondent

CORAM:	Jenkinson J.
PLACE :	Perth
DATE :	30 October, 1991

RECEIVED	l*; :
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0 5 NOV 1991	f i:r
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MINUTES OF ORL~ER	AUSTRALIA
PRINCIPAL 1:
REGWRY

THE COURT ORDERS THAT:  1;.

1. The appeal be allowed.

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2.	The decision of the Administrative Appeals Tribunal	F ,
made 28 June 1991 be wholly set aside.	7 . v.
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(Note:	Settlement and entry of orders is dealt within Order
36 of the Federal Court Rules;)

3.	The case be remitted to the Administrative Appeals	;	;	:	1
Tribunal to be heard and decided again according to	1 .
law.	p..
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4.	The Tribunal be at liberty to hear further evidence.	l ii
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5.	The respondent's costs of the appeal including	/I  .
reserved costs be paid by the applicant.	!
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IN THE FEDERAL COURT OF AUSTRAL14 1

WESTERN AUSTRALIA DISTRICT REGISTRY ) NO. WAG78 of 1991

GENERAL DIVISION	1	. .
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ON APPEAL from the General Administrative Division of the Administrative Appeals Tribunal.	.,-	-.
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BETWEEN:	SECRETARY. DEPARTMENT	t,:
OF SOCIAL SECURITY	f~.::
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Applicant

GENNARO D1 PRINZIO

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Respondent

CORAM:	Jenkinson J.
m:	Perth

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M:	30 October, 1991 .	",
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REASONS FOR JUDGMENT	1,:
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Appeal from a decision of the Administrative Appeals Tribunal varying a decision of a delegate of the applicant	1. .:
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under the Social S e c u r i t v Act, 1947.	The respondent was	l:
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receiving an invalid pension under that Act when payments to him of weekly amounts of workers compensation commenced, and	,, .	~
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continued until September, 1988. The applicant, having been	i".
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unaware during that period of the workers compensation	I : ~
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payments, paid to the respondent amounts (which were thought to aggregate $3,397.90) as invalid pension which should not
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have been paid. Statements made during the course of the	t ?
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hearing of the appeal by counsel for the parties have cast	!.;
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doubt on the correctness of the amount, $3,397.90. The	> ..
applicant's delegate decided that the aggregate amount was a
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debt due by the respondent to the Commonwealth by reason of	F .., :
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the operation of s.246(1) of the ,Soc ia l S e c u r i t v A c t 1947,

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which provides:-	:-
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"Where, in consequence of a false statement or	!l:.
representation, or in consequence of a failure	I C.
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or omission to comply with any provision of	:_i
this Act, an amount has been paid by way of	j!:
pension, allowance or benefit under this Act
which would not have been paid but for the
false statement or representation, failure or
omission, the amount so paid is a debt due to	1;.
the Commonwealth."
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The Administrative Appeals Tribunal, on reviewing the decision	:-:
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of the Social Security Appeals Tribunal affirming the	t.:,
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delegate's decision, concluded that the operation of s.246(1)	.:;1l.?, ;
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was not attracted until 18 March, 1986, when a false statement	I,..
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in writing by the respondent to officers of the Department of	+ ,. V';,
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Social Security was received by those officers. The aggregate	l.':-
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of payments of invalid pension which should not have been paid	k.:: .'
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but were paid after 18 March 1986 was much less than $3,397.90	i!'
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and the Administrative Appeals Tribunal varied the decision it	1;"

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had under review accordingly.	p:
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The Administrative Appeals Tribunal did not have drawn to its attention the provisions of s.45 of the S o c i a l	p .';
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S e c u r i t v A c t 1947. That provision was repealed by the S o c i a l ;:v; 1 c:.

S e c u r i t v L e u i s l a t i o n Amendment	A c t	1983.	-But the	repeal	did	L	:
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not take effect until 1 July, 1987, which was the date fixed	,:.
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by proclamation as the date of commencement of the provision	C I,
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in	the	S o c i a l	S e c u r i t v L e u i s l a t i o n	Amendment	A c t	1983	which	I:-.
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effected the repeal. Section 45(2) provided:

"Where, in any period of 8 consecutive weeks.,

the average weekly rate.of the sum of -

(a)

the income, other than pension, received by a pensioner who -

(1) is married and is not living'	apart from his spouse;
(ii)	is not a person to whom sub- section (2AA) of section 28 applies; and
(iii)	is not a person in receipt of an allowance under section 30A; and

(b)

the income, other than pension, received by his spouse,

is higher than $50 per week and is higher than the average weekly rate of the sum of the income of the pensioner and the income of his spouse last specified by him in a claim, statement or notification under this Part, the pensioner shall, within 14 days after the expiration of that period, notify a Director of the amount of the income received by him, and the amount of the income received by his spouse, in that period."

The circumstances in which the respondent found himself at and

during the period when he was in receipt of an invalid pension

after the time when he first received workers compensation

were such that an obligation was imposed upon him by s.45(2) to give the notice required by that sub-section within 14 days after the expiration of the 8 weeks which followed his first receipt of that workers compensation. From the time of that first receipt of workers compensation until 18 March, and indeed after 18 March 1986, the respondent failed to give the notification which s.45(2) in the particular circumstances in

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which he was placed imposed upon him. There was accordingly,
at the expiration of that period of 8 weeks and 14 days, a '

failure and an omission on the respondent's part to comply	:	:	1	.
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with a provision of the Social Securitv Act 1947, that is to	/.:  r.

say, the provision contained in s.45(2).	And in consequence	i :.
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of that failure and omission the provision which is now to be	i':	.	i
found in s.246(1) operated to make a certain amount, namely
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the aggregate of that part of each invalid pension payment	2~
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which was paid in consequence of that failure and omission and which would not have been paid but for that failure, a debt due to the Commonwealth.
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The calculation of the sum to which I have referred, $3,397.90, was based upon an assumption or a belief that the	I-'
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first payment of workers compensation occurred in February,	,_l
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1985. But in the course of this hearing the possibility, to	p;
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put it no' higher, has emerged that the first payment of	F:
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workers compensation may have been on a later date in 1985.	7: ~
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Or even, conceivably, after 1985. The representatives of the	p; ,? .*

parties have attempted in the time available to them to	i. ,.
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satisfy themselves, each in the interest of his own client, as	P:
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to what the date was, but it has not been possible in the time	5 .?
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available for both the parties to be quite satisfied that they	e
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have established the correct date so that they might agree	2.". tii' '.,
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upon it. Accordingly it will be necessary for this court to	i:.

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remit the matter to the Administrative Appeals Tribunal so

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that the Tribunal may make the appropriate order when the fact

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of the date of the first payment is known, and the appropriate

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calculations are made.

It will be seen from what I have said that the Administrative Appeals Tribunal decision had for its basic premise the finding that until 18 March 1986 no circumstances existed, no event had occurred, which attracted the operation of s.246(1), and that the premise .was incorrect. That was not due to any fault on the part of the Administrative Appeals Tribunal. It was due to the circumstance that the Tribunal's attention was not drawn to the significance of s;45(2) for the purposes of the review which the Tribunal was conducting. No doubt those circumstances explain the announcement which counsel for the applicant made at the outset of the hearing of the appeal, that in any event the applicant consented to an order that the respondent's costs of the appeal be paid by the applicant.

The formal orders disposing of the appeal, which of

course succeeds because there.was an error of law, that is to

say the failure to take into account the operation of s.45,

will be as follows:

1.        The appeal be allowed.

2.        The decision of the Administrative Appeals Tribunal made 28 June 1991 be wholly set aside.

3.        The case be remitted to the Administrative Appeals Tribunal to be. heard and decided again according to law.

4.        The Tribunal be at liberty to hear further evidence.

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1. The respondent's costs of the appeal including reserved costs be paid by the applicant.

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I certify that this and the	b..
5 preceding pages are a	p;
true copy of' the Reasons	r*- t.!:
for Judgment of the	:<-.'
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Honourable Mr. Justice	[.:-:
Jenkinson.	p:
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Associate

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Dated: 30 October, 1991 p [l.  ... "
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Counsel for the Applicant Mr. P. MacLiver

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Counsel for the Respondent	Ms. L. Formato	F':
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Solicitor for the Applicant	.	Australian	Government	I-:.
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Solicitor for the Respondent	Slater & Gordon	l:
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Date of Hearing 30 October, 1991

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