SINGH v D.F.C.S.
[2003] FMCA 566
•5 December 2003
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 2 January 1991. At that time neither the applicant nor his partner Ms Kaur were in receipt of a compensation affected social security payment.
Liability was admitted under the Accident Compensation Act 1985 (Vic) and the applicant was paid weekly compensation by MMI Workers' Compensation (the insurer) from 12 June 1991 until 30 November 1993.
The applicant applied for and was also paid in weekly payments the following by the respondent:
a)Sickness benefits from 28 October 1991 to 6 December 1991 and 1 October 1992 to 14 October 1992 a total of $262.80 gross.
b)Disability support pension from 16 December 1993 to 26 October 1999 a total of $44,185.27
In addition to the monies received by the applicant, monies were also received by Ms Kaur in the form of a wife’s pension for the same period as the disability support pension payments to the applicant and for the same sum of $44,185.27 gross. In total, the respondent paid to the applicant and his wife up to 26 October 1999 the sum of $88,633.34.
On 10 March 1995 the applicant received a lump sum compensation payment of $55,153. On 22 November 1999 a further $24,847 was paid. These payments were made under Section 98 Workcover Table of Maims in respect of the applicant’s impairment.
The applicant commenced further proceedings in relation to payment of weekly compensation payments. On 20 October 1999 Judge Rendit of the County Court in Victoria made an order requiring the insurer to pay to the applicant an arrears amount of weekly compensation from
1 September 1992 to 20 October 1999 at the rate of 90% of pre-injury average weekly earnings, and for such payments to continue in accordance with law. On 4 November 1999 Centrelink advised the insurer that a compensation debt of $88,633.34 (comprising $262.80 in sickness allowance and $44,185.27 in disability support pension paid to each of the applicant and Ms Kaur) was owed by the applicant for the period 28 October 1991 to 26 October 1999. The insurer repaid this amount to Centrelink. On 4 November 1999 Centrelink also advised the applicant of the decision to recover the compensation debt of $88,633.34 directly from the insurer. Centrelink cancelled the applicant's disability support pension and Ms Kaur's wife pension because the applicant's weekly compensation precluded any such payment. The Social Security Appeals Tribunal made decisions in the year 2000 with respect to the applicant and his partner Ms Kaur. The applicant also proceeded in the AAT and the Federal Court.
On the 13 May 2002 the Social Security Appeals Tribunal affirmed a decision of a Centrelink delegate made in relation to the compensation debt. The applicant lodged an appeal to the Administrative Appeals Tribunal on 30 May 2002. The hearing proceeded on 9 October 2002 and by a decision dated 17 December 2002 the Tribunal affirmed the decision under review.
Consideration
Section 17 of the Social Security Act is headed "Compensation Recovery Definitions". Section 17(1) defines "compensation affected payments" as including a disability support pension, a disability support wife pension and sickness benefits.
Section 17(2) defines "compensation" to include periodic payments of compensation and arrears of periodic payments. The payments made to the applicant in weekly payments until 30 November 1993 and the arrears of weekly compensation paid in 1999 fall within this definition. The social security payments made to the applicant and Ms Kaur also fall within the definition of "compensation affected payments" in
subsection 17(1) of the Social Security Act (“the Act”).
Part 3.14 of the Act provides a person must repay any compensated affected payments if they also receive a periodic compensation payment for the same period. This legislative scheme was intended to ensure that persons compensated for their incapacity to work were not doubly compensated by also receiving payments under the Act.
The applicant did not advise the respondent that he was receiving weekly compensation payments from the insurer.
The weekly compensation payments from the insurer ceased on
30 November 1993. The applicant and his wife continued to receive compensation affected payments from the respondent.
The applicant submitted that amendments to s 1165 of the Act effective 20 March 1997 removed the applicant's partner from the preclusion provisions. Thus, the AAT erred in affirming the decision that all wife pension paid after 20 March 1997 was recoverable.
The applicant claimed that ss 1165, 1166 and 1167 of the Act applied. These sections refer to the manner in which preclusion periods operate whilst s 1168, 1169, and 1170 provide for the recovery of relevant amounts. In particular, s 1170 allows recovery where both periodic compensation payments and payments of compensation affected payments have been received.
Section 17(4A) of the Act provides that a payment of arrears of periodic compensation is not a lump sum compensation payment. The AAT affirmed the decision it was reviewing because that section precludes the arrears payment from being subject to any "lump sum preclusion period". The AAT confirmed in its reasons that arrears of periodic compensation do not lose their character merely because they are paid as a lump sum (see Secretary to the Department of Social Security v Cunneen (1997) 48 ALD 251).
Section 116 of the Act provides that where an order is made which requires a worker's compensation insurance company to pay arrears of weekly payments for a specified period, the payment to be recovered is that paid to the wife or partner, as well as that paid to the compensation recipient.
The applicant received his arrears payment in October 1999. Amendments in relation to compensation preclusion periods in respect of partners came into operation from 20 March 1997. Those amendments however applied only to lump sum compensation payments. The applicant did not receive a lump sum compensation payment.
The applicant received two lump sums arising from orders made by Rendit J on 20 October 1999 which revisited the earlier 1995 lump sum payment. The award of arrears of weekly payments made to the applicant was not a component in a larger "lump sum" payable as "compensation within the meaning of s 17(2)".
The wife's pension paid after 20 March 1997 was clearly recoverable. It was an included payment and ss.1168, 1169 and 1170 allow recovery because the alleged compensation debt was an arrears payment of weekly compensation. Thus the payments received by Ms Kaur were subject to adjustment.
This appeal is restricted to questions of law. I can find no error in the reasoning of the Tribunal. I dismiss the application and order that the applicant pay the costs of the respondent.
I Sophie Killen certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Sophie Killen
Date: 5 December, 2003
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