Skyring, A.G. v Social Security, Sec. to the Dept of

[1988] FCA 189

IN THE FEDERAL COURT OF AUSTRALIA )

1

QUEENSLAND DISTRICT REGISTRY	) No. G279 of 1987
1
GENERAL DIVISION	)
ON APPEAL from the General
Administrative Division of the
Administrative Appeals Tribunal constituted by the Honourable &.Justice Hartiqan (President)
BETWEEN:
ALAN GEORGE SKYRING

Applicant

SECRETARY, DEPARTMENT OF

SOCIAL SECURITY

Respondent

MINUTE OF ORDER

JUM;ES MAKING ORDER:	Fox, Sheppard & Bea
DATE OF ORDER:	12 Apr1.l 1988
WHERE MADE:	Brisbane.
THE COURT O R D F M THAT:

Order 36 of the Federal Court Rules.

1.    The appeal be dismissed.

2 . No order be made on the notice of motion in respect of

competency.

3 .    The applicant pay the respondent's costs of the appeal.

4 . No 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

)

QUEENSLAND DISTRICT	REGISTRY	)	No. G279 of 1987
1
GENERAL DIVISION	)

ON APPEAL from the General

Administrative Division of the

Administrative Appeals Tribunal
constituted by the Honourable

Hr.Justice Hartigan (President)

BETWEEN:

ALAN GEORGE SKYRING

Applicant

m:

SECRETARY, DEPARTMENT	OF
SOCIAL SECURITY

Respondent

M:	FOX, SHEPPARD & BEAUMONT JJ.
D=:	12 APRIL 1988

REASONS FOR JUDGMENT

EX TEMPORE

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. 'Ihe 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

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

Skyring, the pension payable to him 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 justlfy 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 lnvolved. 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 Security 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 Mlning 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 arqument. 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

Currency 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 to whether he applied part, or the greater part, of those

payments 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 Cusack 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, MC 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 1s cleared through

the banking system. It seemed at tlmes that	Mr	Skyring's real
challenge was to the banking system.

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

"36(11 Australian notes are a legal tender throughout

Australia. "

At some stage Mr Skyring argued to the effect that thls

subsection was not consistent with 5.16 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	3.16 of the Currency 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(11.	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:

“Sl(xii1) Banking, other than State banking; also State

banking extending beyond the limits of the State

concerned, the incorporation of banks and the

issue of paper money:  ‘l

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 arqument

being presented somewhat differently there, those reasons to some

extent travel along different lines than those that I have lust

qiven.	I should say that Mr Skyring has taken every care to put
before the Court all the	available materlal and has at tlmes 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

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

Mr 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 hlm 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 dld.	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 is 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
the Director-General that he was unemployed.	that basis, the applicant could not satisfy 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 was 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 extenslve

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

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

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	C19853 A.C. 374 per Lord
Fraser at pp.	397-8 and per Lord Scarman at p. 407.

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 Currency 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 Skyrinq	(1985) 50	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. Sl(xii), (riii) and (xvi) and 115. Mr. Skyring

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

made to the provisions of the Currencv Act	1965	deallng wlth
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):-

"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, in 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 Currencv 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 the to

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 earlier case which, of course,

bmds 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

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: &	U--
Date:	12 April 1988

For the Appellant:	Mr A.G. Skyrinq 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:	Brlsbane:  12 April 1988