SINGH v D.F.C.S. - [2003] FMCA 566

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v D.F.C.S.

[2003] FMCA 566

ADMINISTRATIVE LAW – Administrative Appeals Tribunal Appeal – social security – effect of s.17(4A) Social Security Act 1991 (Cth) – recovery of amounts pursuant to ss.1168, 1169 and 1170 Social Security Act 1991 (Cth).

Social Security Act 1991 (Cth)
Federal Court of Australia Act 1976 (Cth)
Accident Compensation Act 1985 (Vic)

Secretary, Department of Social Security v Cunneen (1997) 48 ALD 251

Applicant:

MOHINDER SINGH

Respondent:

SECRETARY TO THE DEPARTMENT OF FAMILY & COMMUNITY SERVICES

File No:

MZ286 of 2003

Delivered on:

5 December 2003

Delivered at:

Melbourne

Hearing date:

9 September 2003

Judgment of:

Hartnett FM

REPRESENTATION

The Applicant:

Appeared on his own behalf

Counsel for the Respondent:

Mr Croyle

Solicitors for the Respondent:

Sparke Helmore

ORDER

The application filed 2 January 2003 being a notice of appeal from a decision of the Administrative Appeals Tribunal given on 17 December 2002 is dismissed.
The applicant pay the respondent's costs of and incidental to these proceedings. Costs to be as agreed between the parties and failing agreement as determined by Federal Magistrate Hartnett on written application made to her Associate seeking a time at which such costs application shall be heard.
Certify for counsel.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ286 of 2003

MOHINDER SINGH

Applicant

And

SECRETARY TO THE DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

REASONS FOR JUDGMENT

Preliminaries

By notice of appeal filed in the Federal Court of Australia on 2 January 2003 the applicant sought to set aside a decision of the Administrative Appeals Tribunal constituted by Mr Friedman and made on 17 December 2002 at Melbourne wherein the Tribunal affirmed the decision then under review. The applicant also sought:
[T]he payment by the respondent of damages both pecuniary and non-pecuniary incurred in the course of the litigation in respect to the recovery of compensation affected payments that deteriorated the applicant's physical and mental health.
The applicant sought that Centrelink reimburse the applicant payments of $88,633.34.
On 19 March 2003 Weinberg J transferred the proceedings to this Court pursuant to s.32AB of the Federal Court of Australia Act 1976. When the matter first came before me on 9 April 2003 the applicant sought that the proceedings be transferred back to the Federal Court. That application was dismissed and procedural orders were made including the setting down of the matter for trial.
The applicant submits that the Administrative Appeal Tribunal (the AAT) was incorrect in law in deciding to affirm the decision to recover compensation affected payments under the Social Security Act 1991 (Cth) (the Social Security Act). The applicant also submits that the AAT erred in affirming the decision that all wife pension payments made after 20 March 1997 were recoverable.
Each of the applicant and respondent filed contentions of fact and law and the respondent also filed a response to the applicant's contentions of fact and law. A court book was filed by the respondent.

History

The applicant was injured at work on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] FMCA 566
Decision Date: 5 December 2003

CaseChat Overview and Summary

The Federal Magistrates Court heard an appeal by Mohinder Singh against a decision of the Administrative Appeals Tribunal (AAT) to affirm a decision by the Secretary to the Department of Family and Community Services to recover compensation-affected payments made under the Social Security Act 1991 (Cth). Singh, who was injured at work, received weekly compensation payments from his insurer until 1993, and subsequently, disability support pension and sickness benefits from the respondent until 1999. The AAT upheld the decision to recover $88,633.34 paid to Singh and his wife as compensation-affected payments, as he also received compensation payments for the same period.

The legal issues in this case centred on the interpretation and application of sections 17(4A), 1165, 1166, 1167, 1168, 1169, and 1170 of the Social Security Act. Singh argued that the AAT erred in affirming the decision to recover compensation-affected payments and that the wife's pension payments made after 20 March 1997 were recoverable. The Court examined whether the arrears of periodic compensation paid to Singh in October 1999 constituted a lump sum compensation payment and if the amendments to the compensation preclusion periods in respect of partners applied to his situation. The Court also considered whether the wife's pension payments made after 20 March 1997 were recoverable under the relevant sections of the Act.

The Federal Magistrate, Hartnett FM, dismissed the appeal and found no error in the reasoning of the AAT. The Court held that the arrears of periodic compensation paid to Singh did not constitute a lump sum compensation payment and that the amendments to compensation preclusion periods in respect of partners applied only to lump sum compensation payments, which Singh did not receive. The wife's pension payments made after 20 March 1997 were recoverable as they were included payments, and sections 1168, 1169, and 1170 of the Act allowed recovery because the alleged compensation debt was an arrears payment of weekly compensation.

In conclusion, the Federal Magistrates Court upheld the AAT's decision to recover compensation-affected payments made to Singh and his wife and dismissed the appeal. The Court ordered Singh to pay the respondent's costs of and incidental to these proceedings.

Orders