Walker, Kelvin v Department of Social Security

[1997] FCA 42

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY  No QG 53 of 1996

GENERAL DIVISION

BETWEEN:KELVIN WALKER

Applicant

AND:DEPARTMENT OF SOCIAL SECURITY

Respondent

CORAM:                   Spender J
PLACE:  Brisbane
DATE:  4 February 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application be dismissed with no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY  No  QG 53 of 1996

GENERAL DIVISION

BETWEEN:KELVIN WALKER

Applicant

AND:SECRETARY, DEPARTMENT OF SOCIAL SECURITY

Respondent

CORAM:                   Spender J
PLACE:  Brisbane
DATE:  4 February 1997

REASONS FOR JUDGMENT

This is an appeal from the Administrative Appeals Tribunal (‘the AAT’) which, on 8 March, 1996 dismissed an appeal by Mr Kelvin Walker from a decision of the Social Security Appeals Tribunal (‘the SSAT’) of 12 December 1995 which affirmed a decision on 2 November 1995 by a delegate of the Secretary to the Department of Social Security to reject his claim for sickness allowance, which claim had been lodged on 26 October 1995.

The issue was identified by the SSAT as:

“...whether the sickness benefit allowance for which Mr Walker is qualified is payable to him by a manner of payment other than to a bank, credit union or building society account".

Having referred to the statutory provisions which applied and the failure by Mr Walker to provide bank account details for the payment of his allowance, that issue was later reformulated by the SSAT.

The legal position relevantly was that, under paragraph 677(1)(m) of the Social Security Act 1991 (‘the Act’), a sickness allowance is not payable to a person for a period during which the person is qualified if during that period the person has not nominated a bank, credit union or building society account for payment of the allowance. Under s 720(2) of the Act, a person's sickness allowance:

“...is to be paid at intervals that the Secretary specifies to a bank, credit union or building society account nominated or maintained by the person.”

Section 720(4), which has since been repealed, provides:

“An instalment is not to be paid where the person has not nominated an account for payment.”

Under s 720(6) of the Act, however, the Secretary may direct that the whole or part of the amount payable to a person be paid to the person in a different way from that provided for by s 720(2) of the Act. In the light of those provisions, and the failure by Mr Walker to provide details of the account into which his allowance might be paid, the issue, as delineated by the SSAT was:

“... whether the discretion under s 720(6) of the Act for a mode of payment other than by direct credit to an account should be exercised in Mr Walker's favour.”

That discretion in s 720(6) is a discretion of the Secretary. The SSAT, however, examined the decision on the merits. It had regard to the factors referred to
in the procedural guidelines of the Department, (including remoteness, age, frailty or disability, legal or administrative problems and genuinely held religious or cultural beliefs), considered the submissions by Mr Walker concerning his religious beliefs as a Buddhist and took into account his medical problems which, according to Mr Walker, create difficulties in using banks.  Having considered the facts, the SSAT concluded on the merits that:

“...in Mr Walker's case,...none of the reasons advanced by Mr Walker, taken singularly or collectively, justify the exercise of the discretion in his favour.”

From that decision, an appeal was taken to the AAT.  It seems to me that the same error, which in my view infects the approach of the AAT in Q54 of 1996, infects its approach in this particular case.  In addition, however, there was a consideration by the AAT of the applicant's claim, and it expressed the view that:

“Mr Walker's claim quite clearly has no merit.”

Furthermore, the AAT stated that the claim was very close to being frivolous.  However, the AAT then expressed the following:

“The AAT can only exercise the same powers as those of the SSAT.  Consequently, the AAT has no power to review this matter.  Impliedly, the SSAT had no power to entertain the appeal to it.”

For the reasons which the Court will give in relation to Q54 of 1996, it seems to me that, while I accept that there was error infecting the decision by the AAT in its view of the powers of the SSAT, this is one of those cases where nothing flows from the serious error into which I think the AAT fell.  To refer the matter back to the AAT, which has no more power than the SSAT, would be an exercise in futility, and the Court
ought not lightly be a party to such an exercise.  The case, as is Q54 of 1996, is of the kind described by O'Loughlin J in Dunn v The Secretary of the Department of Social Security 21 ALD 248, where his Honour said, at 249:

“Therefore, even though I have perceived error on the part of the Tribunal in the restrictive interpretation given to the expression ”making regular contributions to the maintenance of a child", I have also concluded that this is one of those cases where it would be an exercise in futility to refer the matter back to the Tribunal to make its decision in accordance with the law.  As I have assessed the matter, the remission of the proceedings to the Tribunal would result in the Tribunal concluding that there are no facts before it upon which you could make the required finding.  The practicalities of the matter call for the dismissal of the appeal, and that is the order of the Court.”

Notwithstanding that Mr Walker has demonstrated that the AAT fell into serious error, it seems to me that, having regard to all of the circumstances and to the statutory provisions to which reference has been made in the course of submissions, and in particular the inhibition on the SSAT concerning the powers and discretions exercised by the Secretary in this particular case, the application to this Court should be dismissed.  My present view is that, having regard to the circumstances, there should be no order as to costs, but I will hear the parties concerning that matter.

The application is dismissed, but there will be no order as to costs.

I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.

Associate

Date: 4 February 1997

The applicant appeared in person.

Counsel for the respondent     :          Mr P Hack

instructed by  :          Australian Government Solicitor

Date of hearing  :          4 February 1997