Skyring,A.G. v Secretary Department of Social Security

[1988] FCA 222

IN THE FEDERAL COURT OF AUSTRALIA )	1
9UEENSLAND DISTRICT REGISTRY	) No. G279 of 1987 )
GENERAL DIVISION	)
ON APPEAL from the General
Administrative Division of the
Administrative Appeals Tribunal constituted by the Honourable Mr.Justice Hartiqan (President)
BETWEEN:
ALAN GEORGE SKYRING

Applicant

SECRETARY, DEPARTMENT OF

SOCIAL SECURITY

Respondent

MINUTE OF ORDER

JUDGES MAKING	ORDER:	Fox, Sheppard & Beaumont JJ.
DATE OF ORDER:	12 April
WHERE MADE:	Brisbane.

Order 36 Qf the Federal Court Rules.

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2 . No order be made on the noti of

competency.

3 .	The applicant pay the respondent's costs of the appeal.
4.	NQ order be made as to costs on the notice of motion.

- Note: Settlement and entry of orders is dealt with in

NOT FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA 1

)

QUEWSLAND DISTRICT REGISTRY	1	No. G279	of	1987
)

DIVISION	GENERAL	)
ON APPEAL from the General
Administrative Division of the Administrative Appeals Tribunal constituted by the Honourable Mr.Justice Hartigan (President)
BETWEEN:
ALAN GEORGE SKPRING

Applicant

m:

SECRETARY, DEPARTMENT	OF
SOCIAL SECURITY

Respondent

M: FOX, SHEPPARD & BEAUMONT JJ.

D m :  12 APRIL 1988

REASONS FOR JUDGMENT

EX " P O R E

FOX J.

We have before us two applications. One is an

application to hold as not competent an appeal brought by the

applicant, Mr Skyring, from a decision of the Administrative

Appeals Tribunal which rejected an appeal by him from the Social
Security Appeals Tribunal. The other is the appeal itself, which
although so-called in the Administrative Appeals Tribunal Act

1975, is a proceeding in the original jurisdiction of the Court.

In that proceeding the Court can only decide questions of law.

The matters in question were really two. One is whether

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by reason of what was taken to be a receipt of money by Mr

Skyring, the pension payable to h i m should have been as it was,

appropriately adjusted for the month or months in question. This

situation arose quite some time ago and would now seem to be one
that does not call for any investigation. even if the contention
once had some merit.

The other is more recent and is a decision that was taken within the Social Services Security Department that Mr Skyring was no longer an unemployed person and was not entitled

to unemployment benefits under the Social Securitv Act 1947. The

second is more current than the first, but I do not take time to

decide whether it is of sufficient currency to justify the

application which was made,	or the hearing of the appeal.
The objection to competency was really on two grounds. One was that there was no question of law involved.	The other

was that, if there was a question of law involved, it was utterly

untenable and we therefore should dismiss the actlon.

The course which has been followed has allowed the

arguments raised by Mr Skyring to be fully stated by him, and

indeed restated by him several times. I therefore do not propose

to make any decision on the application with regard to

competency, but proceed to consider the arguments presented by Mr

Skyring in relation to the second of the matters that I have

mentioned, namely the decision that	he is no longer entitled to
unemployment benefits.

The first thing of note, I think, is that, on the

definitions in the Social Securitv Act, the course which was

taken was certainly open to be taken and is not shown to be

wrong, except conceivably on the basis with which I will

presently deal.

The Departmental position was. at the time of the

decision referred to, that Mr Skyring. who has qualified as an

engineer with a degree of Bachelor of Engineering and is and was

a member of the Institute	of Engineers, was in receipt of income
in the course of carrying on his profession	so as to render him
ineligible for social security benefits.

The position, as I understand it, is that Mr Skyring in

the period under examination did a substantial amount of work of

a professional nature for a company known as Austral Mining and

received a substantial payment. or a series of payments

aggregating $32,000.	The amounts referred to in the case are
smaller and came from a different source, but	Mr Skyrlnu has told
us of the larger amount. He says that in both	his returns to the

Department, and what he now claims to be the position, the

payments made to him should not be recognized as payments because

they were illegally made.

They are said to be illegally made because they were not

made in bullion, or coin. I am not quite sure how much further

Mr Skyring, in the course of argument. finally extended this to

paper money.

The argument put is that the requirement about payment

by a proper tender of money is to be found in s.16 of the

Currencv Act 1965 and that that deals with payment in coins.

That section says nothing about paper money. Mr Skyring said he

was not paid in coins nor was he paid, if it be material,	in
notes.

Although he dealt with the cheques that were sent to him

and arranged with a friend and helper, Mr Cusack, for them to be

banked by Mr Cusack and drawn upon, he submitted that he did not

receive payment. He was reluctant to answer our direct questions

as t o whether he applied part, or the greater part, of those

papments for his own benefit.

I think he eventually said that some $20,000 of the

amount was paid to him. or applied for his benefit. A further

amount he was prepared to pay Mr Cuzack for services rendered by

him in connection with an amount of clerical work done	by	Mr
Cusack.

At all events, there can be no doubt that the cheques

sent by Austral Mining were in substantial part at least banked,
or kept for the benefit	of Mr Skyring and the cheques were in
fact cleared in the ordinary	way, and ultimately, of course, went

to the debit of Austral Mining's bank account.

In the absence of payment by coins, or possibly by

notes, Hr Skyring says that he was not paid and therefore did not

satisfy the relevant limiting or disqualifying terms of the

Social Securitv Act, to be found in 3.107. There	is no separate
problem about the application of that provision, and	I shall not
take time to discuss it.

In sum, he is saying that he does not earn money and

will not earn money unless he is paid in bullion, or coin, or

perhaps notes. He says the cheques are not authorised as

currency and he is not obliged to accept them and that even if he

does so, the payments are not legal and he does not have to

acknowledge them and they should not be taken into account for
the purposes of the Social Security Act. Payment by cheque is

doubtless not legal tender, but is a very well-established method

of payment, and is not less so when the cheque is cleared through

the banking system. It seemed at times that Mr Skyring's real

challenge was to the banking system.

Section 36(1) of the Reserve Bank Act 1959 provldes:

"36(1) Australian notes are a legal tender throughout

Australia. "

At same stage Hr Skyring argued to the effect that this

subsection was not consistent with s.16 of the Currency Act. I

have said that I was left in some doubt as to Mr Skyring's

position about notes, but he has also submitted that the

governing section is 9.16 of the Currencv Act and that s.36(1) of

the Reserve Bank Act should not be treated as qualifying it. In

my view, it is plain enough that s.36(1) is quite consistent with

s.16(1). The latter deals with a tender of coins, and restricts

the number of coins which can be paid in any particular

,

denomination, so that a superfluity of coins is not transmitted or handed over. Section 36(1) also makes Australian notes legal tender.

Hr Skyring turned to history and sought to rely on some

old Acts and old decisions. They are not of any present

relevance. He sought to support his argument also by reference

to s.115 of the Constitution, which imposes a restraint on what

the States can do in relation to coining money and related

matters. He does not accept that section 5l(xiii) could cover

the present situation. It reads:

"5l(~iii)	Banking, other than State banking; also State banking extending beyond the limits of the State
concerned, the incorporation of banks and the
is sue of paper money : I'

It seems to me that on the grounds argued, the declslon

below was entirely correct and I might say, correct substantially
for the reasons given, although I suspect because of the argument
being presented somewhat differently there. those reasons to some

extent travel along different lines than those that I have just

given. I should say that Mr Skyrlng has taken every care to put

before the Court all the available material and has at times been

very emphatic, perhaps over-emphatic about some parts of his

argument, in the belief, I think, that the Court is more

impressed with emotional or strongly emphatic argument than it

might otherwise be. He should understand that this is not so.

By a process of long training, we are accustomed to listening and

taking into account what we hear and weighing it. We also have a
reasonable knowledge of related matters, including the banking

. . * 7.

system and commerce and for that matter, of legal history.

Hr Skyring has presented the same argument in one form

or another in a number of courts In recent times. he would say in

different contexts, or slightly different contexts with slightly

different emphasis, but has failed on every occasion. The

result, therefore, is that I would dismiss the appeal and make no

order on the motion for competency.

SHEPPARD J.:  I am In agreement with the orders which have been

proposed by the presiding judge and with the reasons that he has
given. I wish, however, to add a few remarks of my own. As has

been said, there were two appeals to the Tribunal. In relation

to the first, so it seems to me, the evidence discloses that the

applicant did negotiate cheques given in payment to him for the work in question through his bank account. He says, by way of explanation, that that was done under some form of duress and

that he needed the money. The fact is that	is what he did. In
Georse v. Cluninq (1979) 28 A.L.R.	57, Mason J. (as he then was)
said (p. 6 2 ) : -

“In my opinion the	appellant,	through his
solicitors,	by receiving	the respondent‘s

personal cheque without objecting to it on
the ground that it did not constitute legal
tender, must be taken to have accepted the

cheque as payment of the amount for which it

was drawn.	The	practice	of	giving	and
accepting	personal	cheques	in	payment	of

debts and liabilities is now so widespread

that there I s a general expectation on the

part of persons making payments that a

personal cheque, given in payment of a debt

or liability, will be accepted unless the

payee objects before or at the time of

receipt that the cheque does not constitute

legal tender".

I would add that if there is	an	objection but nevertheless	a
taking	of the cheque and	a	negotiation of it through a bank

account, any objection taken at the time is usually, but, of

course, depending on the circumstances, waived. To my mind, that

puts an end to the first appeal.

The second appeal and the way that it was dealt with by the

Tribunal concerned the question whether the applicant was

unemployed. In relation to that matter, the Tribunal's finding

was as follows:-

"I accept the submission of the respondent

that the evidence is that the applicant over
the period 31 March 1984 to 2 December 1985
engaged in work of a remunerative nature

earning approximately $7000 from W.D.T.

Engineers. I accept the submission that upon

that basis, the applicant could not satisfy

the Director-General that he was unemployed. At the very most what could be said on behalf

of the applicant was that he may have been

under-employed. In my view, then, the

decision under review ought to be affirmed".

There is a question whether there is any legal basis upon which

that claim could be challenged. In my opinion, none has been

disclosed in argument. The fact that the finding cannot

successfully be challenged in a court which may only interfere

with decisions if there is an error of law means that this
appeal, insofar as it concerns the second appeal to the Tribunal,
must also be dismissed.

However, in the way that the matter was argued, further facts

were referred to without objection from counsel for the respondent. These disclosed the receipt of the $32,000 referred to by the presiding judge. But upon the basis of what we were

told about that sum. it has been received entirely by the

applicant, either directly or indirectly. On his own statements,

which will appear in the transcript, the amount was paid either

to him directly or on his behalf and at his direction. That did

not, however, deter the applicant from putting to us arguments

based upon the Constitition and provisions	of the Currencv Act
1965 and the Reserve Bank Act 1959.	That, indeed, so he said,

was his avowed purpose in bringing the proceedings, because he

has	fundamental views about the way the monetary system is
established in this and other countries and	it is his wish to

demonstrate that the system is an unlawful one. For this

purpose, he relied very heavily on the content of the royal

prerogative as it wa9 at the end	of the seventeenth century.
It should be understood that a number	of cases show that the

content of the prerogative in those years was much more extensive

than it is now and that, because of statutory intrusions, the

statutes having been passed, of course, either by the Parliament

of the United Kingdom or the Parliament here, it now has a

content which is very much reduced and which has really little

but historical relevance to the law as it is in Australia and

indeed in the United Kingdom, today; see Council	of Civil Service
Unions v. Minister for the Civil Service E19853	A.C. 374 per Lord
Fraser at pp. 397-8 and per Lord Scarman at	p. 407.

10.

1. .

It seems that what the applicant wanted the employer, who

owed him the sum of $32,000, to do was to pay him in gold coin,

because, in	his submission, that was the only lawful way he could
be paid,	and he relied for this purpose on the combined effect of

ss. 16 and 22 of the Currencv Act. As I understand what he told

us, the employer was prepared to pay him in notes, but he refused

notes, saying that he wanted gold coin or bullion. This, the

employer refused to do. This led to a submission that in some
way, section 36 of the Reserve Bank Act was invalid, it providing

that Australian notes are legal tender throughout Australia.

The point upon which the applicant really wanted a decision

is the one that I	am now dealing with, but it is	a point upon
which he has already had the decision	of	the High Court of

Australia. That decision is Re Skvrinq (1985) 58 A.L.R. 629.

The decision is that of a single judge of the Court, Deane J.

Amongst the submissions made to Deane	J. was a submission that
the combined effect of a number of	sections of the Constitution

was to erect a barrier against the issue by the Commonwealth of

paper money as legal tender. His Honour said (p. 633) that the

sections of the Constitution upon which particular reliance was

placed were ss. 5l(xii), (xiii) and (xvil and 115. Mr. Skyring

also referred to ss. 105 and 105A. Additionally, reference was

made to the provisions of the Currency Act 1965 dealing with

coins. Deane J. said that the argument, if accepted, would

result in the invalidity of S. 36(1) of the Reserve Bank Act 1959

which provides that Australian notes are legal tender throughout

Australia. Deane J. said (p. 633):-

1 4 11.

“I have come to	a clear conclusion that there
is no substance in the argument that there	is

a constitutional bar against the issue by the

Commonwealth of paper money as legal tender. Nor, ln my view, would there be any substance in an argument that the provisions of S. 36(1) of the Reserve Bank Act 1959 are invalidated or overruled by the provisons of the Currency Act 1965. That being so, I am unpersuaded that there is any substance in

the proposed proceedings against Mr. Justice

Spender, nor am I persuaded that proceedings by certiorari against Mr. Justice Spender

would in any event be appropriate“.

Deane J.’s decision went on	appeal to a Full Court which, in
an unreported decision.	dated 9 July 1985, dismissed the appeal.
The submission to which I have referred was referred to.	The
Court said:-

“Having listened attentively to the submissions made by the appellant in support

of this appeal, we are	not persuaded that the
judgment of Mr. Justice Deane contains	any
error”.

The appeal was dismissed. In my view, this case, insofar as it depends upon the same considerations as are referred to in Deane J.’s judgment is covered by the earller case which, of course, binds us. In the result I am of opinion that the appeal should be	dismissed. It is	unnecessary	to	deal	with the	objection	to
competency.

BEAUMONT J.:  I agree

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12.

FOX J.:  The order of the Court is that the appeal be dismissed,

that no order be made on the notice of motion in respect of

competency, and that the applicant pay the respondent's costs	of
the appeal. As	to the notice of motion, the order will be that
there be no order	as to costs.

I certify that this and the

eleven (11) preceding pages

are a true copy of the

Reasons for Judgment herein

of the Court.

Associate:O U--

Date:  12 April 1988

For the Appellant:	Mr A.G. Skyring in person
Counsel for the Respondent:	Mr S. Keim
Solicitors for the Respondent:	Australian Government Solicitor
Date of hearing:	Brisbane:  12 April 1988
Date judgment delivered:	Brisbane:  12 Aprll 1988