JUDGMENT No. 624/61. CATCHWORDS Administrative Law - appeal from Administrative Appeals Tribunal - appeal from decisions of Administrative Appeals Tribunal made in review of a decision of a delegate of the applicant - whether the Administrative Appeals Tribunal, when reviewing a decision, 1s empowered to review another decision not made by maker of decision under review, and not the subject of an application for review. Administrative Appeals Tribunal Act 1975 ss.29,37,43,44 Social Security Act 1947 ss.14,15,15A,1057,105JA,105J3B,107,108,115,115B,115C,115D, 115E,135TA,135TB Workers' Compensation Act 1927 (Tas.) 5s.3,5 Schedule 1 Rule 3 SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY and NOEL F. RILEY T. No. G 9 of 1987 NORTHROP, SHEPPARD AND JENKINSON JJ. 12 NOVEMBER 1987 MELBOURNE » 13 NOV 1987 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTRY IN THE FEDERAL COURT OF AUS IA TASMANIA DISTRICT REGISTRY T. No. G 9 of 1987 eee vw GENERAL DIVISION QON_ APP OM THE Gi INISTRATI DIVISTON OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY D PRESTI RO CHRISTIE JENNINGS .c. BETWEEN: SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY Applicant and NOEL F. RILEY Respondent COURT: NORTHROP, SHEPPARD AND JENKINSON JJ. DATE : 12 NOVEMBER 1987 PLACE: MELBOURNE MINUTES OF ORDER THE COURT ORDERS THAT: - 1. The appeal be allowed. 2. The decision of the Administrative Appeals Tribunal made on 8 May 1987 and the decision of the Administrative Appeals Tribunal made on 22 July 1987 be set aside. w ° The proceedings in which the said decisions were made be remitted to the Administrative Appeals Tribunal to be heard and determined according to law. 4. The applicant pay the respondent's costs of the appeal. (Settlement and entry of Orders is dealt with in 0.36 of the Rules of Court.) * IN THE ERAL COURT OF AUSTRALIA ) , TASMANIA DISTRICT REGISTRY ) T. No. G 3 of 1987 ) ) GENERAL DIVISION ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF ADMINIS TIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT ROGER CHRISTIE JENNINGS, 0.C. SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY Applicant and NOEL F. RILEY Respondent COURT: NORTHROP, SHEPPARD AND JENKINSON JJ. DATE : 12 NOVEMBER 1987 PLACE: MELBOURNE REASONS FOR JUDGMENT NORTHROP J. The essential issue raised by this appeal is whether the Administrative Appeals Tribunal ("the Tribunal"), when reviewing a decision on the exercise of a discretion under the Administrative Appeals Tribunal Act 1975 ("the B.A.T. Act") was empowered to review another decision which had not been made by the maker of the decision under review, which was not the subject of an application for review under the A.A.T. Act and which had not been referred to during the hearing of the application for review by the Tribunal. The facts giving rise to that issue, ancluding the relevant provisions of the Social Security Act 1947, are referred to in detail in the reasons for judgment of Jenkinson J.. I agree with His Honour's reasons but desire to make some general observations. At material periods, the respondent was receiving a sickness benerit under 3.108 of the Social Security Act. Implicit in that receipt 1s the fact that the respondent had satisfied the Secretary to the Department of Social Security, or his delegate, that during those periods "he was incapacitated for work by reason of sickness or accident (being an incapacity of a temporary nature) and that he has thereby suffered a loss of salary, wages or other income"; see sub-paragraph 108(1)(c)(i). That fact had never heen questioned. The respondent was entitled to payment of compensation from his employer under the provisions of the Workers Compensation Act 1927 (Tas.) with respect to the same incapacity for work. Pursuant to the provisions of sub-section 115D(2) of the Social Security Act, a delegate made a decision that the insurer of the employer of the respondent pay to the Secretary, on behalf of the Commonwealth, the sum of $8,680.93. The insurer paid that sum to the Secretary;see sub-section 115D(6). The respondent, pursuant to 5.15 of the Social Security Act, appealed to the Secretary against that decision. The appeal was referred to a Social Security Appeals Tribunal for review; see sub-section 15A(1). At the review before the Social Security Appeals Tribunal, the respondent, through his solicitor, relied upon s.115E of the Social Security Act. He submitted that the Secretary or his delegate should exercise the discretion conferred by s5s.115E with the result that the amount specified in the sub-section 115D(2) decision be reduced. He sought a decision that in "the special circumstances of the case" it was appropriate that the Secretary treat the payment of workers' compensation to him as not having been made in whole or in part. If the respondent succeeded in that submission the amount or $8,680.93 paid by the insurer to the Secretary should he refunded in whole or in part to the applicant depending upon the discretion of the Secretary or his delegate. Following that review, a delegate of the Secretary made a decision affirming the decision made under sub-section 115D(2) appealed from. He held that there were no "special circumstances" justifying the exercise of the discretion conferred by s.115E. Pursuant to s.15A of the Social Security Act and the A.A.T. Act, the respondent made application to the Tribunal for a review of that decision. In conformity with s.29 of the A.A.T. Act and the Regulations made under that Act, the form of application made by the respondent for review of decision stated that the decision to be reviewed was "The decision to retain $8,680.93 as repayable sickness benefits out of Mr. Riley''s Workers' Compensation monies" and that the reasons for the application were:- "1. That 1t is a special circumstance that the total payment of weekly payments applicable tao Mr. Riley's case was $41,634.40. 2. That Mr. Riley has recently incurred a very high debt in respect to legal costs for an unsuccessful application for superannuation. 3. That Mr. Riley 1s aman of modest means and has no other income other than sickness payments." In reviewing a decision, the Tribunal is empowered to exercise all the powers and discretions conferred on the person who made the decision being reviewed. Sub-section 43(1) of the A.A.T. Act is set out:- "43. (1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing - (a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review and - (1) making a decision in = substitution for the decision so set aside; or (ii) remitting the matter for reconsideration 1n accordance with any directions or recommendations of the Tribunal." At the hearing before the Tribunal, the respondent was represented by his solicitor. The only issue argued was whether there were "special circumstances" justifying the exercise of the discretion conferred by s.115E of the Social Security Act. No question was raised with respect to whether the respondent was "qualified to receive a sickness benefit" within the meaning of s.115D of the Social Security Act during the relevant periods. In fact, the respondent did receive the sickness benefit during the relevant periods. It follows that he did so because he was "qualified to receive a sickness benefit" during those periods under sub-section 108(1) because he had satisfied the Secretary or his delegate that during those periods he was "incapacitated for work by reason of sickness or accident (being an incapacity of a temporary nature)"; see paragraph 10811)(c)(i). The Tribunal reserved its decision. On 8 May 1987, the Tribunal, in purported exercise of the powers conferred by sub-section 43(1) of the A.A.T. Act, made its decision in writing with respect to the application for review. The decision 15 set out:- "The Tribunal decides: 1. To set aside the decision under review. 2. To remit the matter to the respondent (the Secretary) with a direction that he consider whether or not there 15 any material to warrant a finding that the applicant (Riley) was ever qualified to receive sickness benefits, and 1f so, to calculate the amount of sickness benerits paid during the period(s) he was arguably so qualified. 3. To further direct that the material upon which the respondent (the Secretary) bases any such calculation shall be supplied to the applicant (Riley) and the registry of the Tribunal within 30 days of the date of this decision. Any application by either party to adduce further material relevant to the question of qualification for sickness benefits will be considered on its merits. 4. That there be liberty to either party to apply generally and in particular as to what sum should now be paid by the respondent (the Secretary) to the applicant (Riley)." There are inherent difficulties with respect to that decision. Under sub-section 43(1) of the A.A.T. Act, where the Tribunal sets aside the decision under review, it is empowered to do one of two things. They are true alternatives. The Tribunal may Make a decision in substitution for the decision so set aside or (emphasis added) the Tribunal may remit the matter for reconsideration by the person whose decision has been set aside, in this case the Secretary or his delegate, in accordance with any direction or recommendation made by the Tribunal. By its decision in this case, the Tribunal set aside the decision under review but did neither of the alternatives prescribed by paragraph 43(1)(c) of the A.A.T. Act. This led to further difficulties as will become apparent later. For the present, 1t is sufficient to say that a reading of its reasons for decision shows that the Tribunal formed the view that the respondent was not qualified to receive a sickness benefit under sub-section 108(1) of the Social Security Act during all relevant periods since it was not satisfied that for all those periods the respondent "was incapacitated for work by reason of sickness or accident (being an incapacity of a temporary nature)." The Tribunal expressed the opinion that on the material before it, the respondent, at some relevant period, was incapacitated for work by reason of sickness or accident being an incapacity of a permanent nature. It held, therefore, that the provisions of sub-section 115D(2) did not apply for all relevant periods and that the Secretary should provide material to enable it to determine for itself for what periods the respondent was qualified to receive a sickness benefit. The Tribunal did not consider whether there were "special circumstances" justifying the exercise of the discretion conferred by 5.1155. In other words, the Tribunal did not review the decision sought to be reviewed on the reasons relied upon by the respondent both in his application for review and in argument before the Tribunal. The further difficulties referred to above became apparent when the Tribunal further considered its review of the decision sought to be reviewed and which had been set aside. These appear from what are headed "Reasons for Direction" dated 22 July 1987. In those "Reasons for Direction" the Tribunal refers to its decision of & May 1987 and the fact that the Secretary had supplied the material referred to and in addition that the Secretary had supplied a submission in writing. The Reasons then continue:- "The submission argued:- (1) That I lacked jurisdiction to set aside the decision under review. (2) That the material supplied was sufficient to qualify (Riley) for sickness benefits during the whole of the period such benefits were paid. and (3) That the whole of the amount recovered pursuant to s.115D of the Act was properly recovered. On 7 July 1987 the Tribunal received a written submission made on behalf of (Riley) which arqued:- (1) That argument as to jurisdiction is now a Matter for appeal. (2) That the material supplied established that (Riley's) incapacity was not temporary after mid 1982. and (3) That (Riley) should therefore recover one half of the sum he was awarded by way of workers' compensation converted to the equivalent of annual payments during the remainder of his working life. I accept (Riley's) submission that if there was no jurisdiction to set aside the decision under review that 15 a matter for appeal." The "Reasons for Direction" conclude as follows:- "Finally, in the absence of any specific evidence to enable a more accurate calculation to be made, I determine that the maximum amount which should be recovered 1s $1,000 and accordingly that the sum payable to the applicant (Riley) by the respondent (the Secretary) is $7,680.93 and I so direct." That determination was based on the period which the Tribunal considered that the respondent "was incapacitated for work by reason of sickness or accident (being an incapacity of a temporary nature)"; see paragraph 108(1)(c)(1) of the Social Security Act. The Tribunal did not consider whether it should exercise the discretion conferred by s.115E. The Secretary, by one notice of appeal, appealed to this Court against the decision of the Tribunal made on 8 May 1987 and the direction made on 22 July 1987. The notice of appeal was given within the time specified in the order of the Court of 24 August 1987. For the purpose of the appeal to the Court, the decision and the direction of the Tribunal should be treated as the one decision under 5.43 of the A.A.T. Act. I agree with the conclusion reached by Jenkinson J. that on the facts of this case, the only decision sought to be reviewed by the respondent was the decision not to exercise the discretion conferred by s.115E of the Social Security Act. Not all decisions made by the Secretary or his delegate under the Social Security Act can be made the subject of a review under the A.A.T. Act. To be reviewable, the decision must be one that satisfies the requirements of either sub-section 15A(1) or (2). In the present case, sub-section 15A(2) has no application. The only decision which comes within sub-section 15A(1) 1s the decision not toa exercise the discretion conferred by s.115E. It 1s true that in form, the decision 1s expressed to be a decision under sub-section 115D(2), but at no stage of the procedures before the Social Security Appeals Tribunal, the consideration by the delegate who made the decision after the review by the Social Security Appeals Tribunal, or the proceedings before the Administrative Appeals Tribunal, was attention directed to the question of whether the respondent was qualified to receive a sickness benefit during any relevant period. He in fact received a sickness benefit for all relevant periods. The decisions that were made by which the respondent received payment of the sickness benefit had never been reviewed by a - 10 - Social Security Appeals Tribunal. None of those decisions could be reviewed by the Administrative Appeals Tribunal. It was mot permissible for that Tribunal to review those decisions under the guise of exercising the discretion conferred by s.115E. I agree with the orders proposed by Jenkinson J. we de nee cee eminent Doe eae ee hl ha vonily that this and the ne (4) -+eding pages are a true copy of the sasono for Judgment herein of the -onourable Mr. Justice & M Nerrhesp rosa Te aT. Charen, 7? 40120 Associate Ngted: [2 Novenwe> 198F . ll IN THE FEDERAL COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY ) No. TG9 of 1987 ) ) GENERAL DIVISION BETWEEN: SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY Applicant AND: NOEL F. RILEY Respondent CORAM: NORTHROP, SHEPPARD and JENKINSON JJ. DATE : 12 NOVEMBER 1987 REASONS FOR JUDGMENT SHEPPARD J.: I am in agreement with Northrop and Jenkinson JJ., whose judgments I have had the opportunity of reading, that this appeal must be allowed and the matter remitted to the Administrative Appeals Tribunal to be dealt with according to law. In accordance with the agreement made between the parties, the applicant should pay the respondent's costs of the appeal. My reasons for reaching this conclusion may be shortly stated. The section of the Social Security Act 1947 which confers jurisdiction on the Administrative Appeals Tribunal 1s s. 15a. It provides in sub-sec. (1) that, where the Secretary has, in pursuance of s. 14 or s. 15, made a decision affirming, varying or annulling a determination, direction, decision or 2. approval of an officer, being a determination, decision or approval that has been reviewed by a Social Security Appeals Tribunal, then, subject to s. 29 of the Administrative Appeals Tribunal Act 1975, an application may be made to. the Administrative Appeals Tribunal for review of the decision of the Secretary. Section 29 of the Administrative Appeals Tribunal Act provides for certain matters of procedure in relation to appeals instituted ain the Tribunal. Some of these are modified by sub-sec. 15A(5) of the Social Security Act. None of the procedural provisions are of relevance in this case. The documents and other evidence referred to in the judgment of Jenkinson J. show that the question of the respondent's entitlement to sick leave pursuant to s. 108 of the Social Security Act was not a matter to which the delegate of the Secretary referred when making the decision, review of which was sought in the Administrative Appeals Tribunal; nor was it a matter which was the subject of consideration by the Social Security Appeals Tribunal before which the matter came. The evidence establishes that the review which was sought related to the exercise by the Secretary's delegate of the discretion provided for in s. 115E. At all material times the respondent was represented by solicitors who limited the questions to be determined both before the Security Appeals Tribunal and the Administrative Appeals Tribunal to the exercise of the Secretary's discretion under that provision. It follows that no appeal on any other matter was competent. The words of s.15A plainly indicate that the matter of a decision of the Secretary cannot be reviewed by the Administrative Appeals Tribunal unless 3. the matter has been before a Social Security Appeals Tribunal. It would be possible, in my opinion, for there to be cases where the terms of a request for review were so wide that every aspect of the entitlement of a person to benefit was raised as well as every aspect of his obligation to repay benefit to the Commonwealth. Such cases would be more likely to arise where a party was acting without the benefit of legal representation. Here, however, the matters upon which the respondent wished to rely were clearly stated and there is no room for the view that his reference to the Tribunal raised wider considerations than the exercise of the Secretary's discretion under s. 115E. The matter is not without its practical importance. It is very difficult for a Tribunal to review a decision if the matter is completely at large. In a particular case 1t may have to do its best, but such a situation leads to great difficulty in defining issues and preparing evidence. Counsel for the respondent relied upon the language of s. 43 of the Administrative Appeals Tribunal Act. But the provisions of sub-sec. (1) of that section must be read in the light of the opening words which are, "For the purpose of reviewing a decision the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision ...". One cannot apply that section to the facts of any case without determining, first of all, what is the decision under review. If, as I think should be concluded to be the case here, the decision is the exercise by the Secretary, after review 4. of the matter by a Social Security Appeals Tribunal, of the discretion conferred by s. 115E, the wide powers which are conferred upon the Administrative Appeals Tribunal by s. 43 do not empower it to review a totally different decision. That seems to me to be especially so in a case where the underlying assumption upon which the respondent, his solicitors, the Social Security Appeals Tribunal before which the matter came, and the Secretary's delegate all proceeded, was that the respondent was in fact qualified to receive sickness benefit under s. 108 of the Act. If that were not the common assumption of all, attention could not have been given to the question whether the discretion provided for in s. 115E should be exercised in the respondent's favour. It should also be observed that the proposition upon which the respondent now relies denies his entitlement to a benefit which he received over many years. Notwithstanding the informality with which proceedings before the Administrative Appeals Tribunal must necessarily and desirably be attended, it seems unlikely to me that the legislature intended the appeal and review procedures for which the Social Security Act provides to be available in relation to a matter arising under s. 108 in the absence of the provisions of that section being mentioned. On the contrary, the whole attention of all concerned was concentrated upon the immediately relevant sections, ss. 115D and 115E. It would be an unusual case indeed for a person in receipt of a benefit under the Act to challenge his own entitlement to receive it, but I do not say that such a situation is not possible. However, what the respondent would need to do in order 5. to achieve such a result would be to challenge the Secretary's satisfaction as to the matters provided for in para. 108(1)(c) of the Act. On no basis could it be said that he or his solicitors ever undertook that task. The matter should therefore go back to the Tribunal to be decided according to law. It is not for this Court to express any view which might affect the exercise of the wide discretion which the Tribunal has under s. 115E. But, in my opinion, it would not be outside the Tribunal's jurisdiction to take into account the matters of substantial hardship which are referred to in the Tribunal's reasons. These stem substantially from the comparatively small amount of compensation to which the respondent was entitled under the Tasmanian legislation. | certify that this and the 4 preceding pages are a true copy of the reasons for Judgment herein of The Honourable Mr Justice Sheppard. pith Associate Dated /2 VovEAZER /787 IN THE FEDERAL COURT OF AUSTRALIA ) TASMANIA DISTRICT REGISTRY i No. TG9 of 1987 G DIVISION } ON APPEAL from the General Administrative Division of the Administrative Appeals Tribunal constituted by Deputy President Roger Christie Jennings, Q.C. BETWEEN: SECRETARY TO THE. DEPARTMENT OF SOCTAL SECURITY Applicant AND: NOEL fF. RILEY Respondent CORAM: Northrop, Sheppard and Jenkinson JJ. PLACE: Melbourne DATE: 12 November, 1987 REASONS FOR JUDGMENT Jenkinson J. Appeal from decisions of the Administrative Appeals Tribunal made in review of a decision of a delegate of the applicant. On 18 October 1981 the respondent suffered a heart attack in circumstances which imposed on his employer a liability to pay him compensation under the provisions of the Workers' Compensation Act 1327 (Tas.). No payment in discharge of that liability was made until the existence and extent of the liability 2. had been established in proceedings between the respondent and his employer by an order of the Supreme Court of Tasmania made on 939 November 1984. The respondent claimed sickness benefit in respect of the period which commenced when he suffered the heart attack. Payments of that benefit were made for several years, aggregating more than $14,000. On or about 1 May 1985 a notice of the kind for which sub-section 115D(2) of the Social Security Act 1947 makes provision was served on the insurer liable under a contract of insurance to andemnify the respondent s employer against the liability established by the order of the Supreme Court of 3 November 1984. Section 115D falls within Division 3A of Part VII of that Act. That Division gives expression toa legislative scheme for recoupment by the Commonwealth of payments of sickness benefit and certain other payments under the Act to persons entitled, in respect of the same incapacity, both to those benefits or payments under the Act and also to certain other compensatory payments, including "a payment under a scheme of .... compensation provided for by a law er a State". (See s.115.\1)(a),11).) Division 3A provides for service of a notice in writing by the applicant (or by one of his delegates) on a person thus doubly entitled (s.115B(3)), on a person liable to make a Payment by way of compensation in respect of that person's incapacity (5.115C(2)), or on an insurer liable to indemnify the person liable to pay compensation (s.115D(2)). Service of such a notice operates, if certain conditions prescribed in Division 3A are fulfilled, to impose on the person served a liability to pay to the Commonwealth the amount specified in the notice, being an 3. amount not exceeding the amount of sickness benefit (by which expression it is convenient to comprehend the other payments also) paid in respect of the incapacity for which there 1s entitlement to other compensatory payment. Sub-section 115D(2) provides: "Where an insurer 15 liable, under a contract of insurance, to indemnify a client, in whole or in part, against the liability of the client to make a payment or payments by way of compensation in respect of the incapacity of another person who 15, or was, qualified to receive a sickness benefit in respect of that incapacity, the Secretary may serve a notice in writing on the insurer (whether or not a notice has been served on the insurer under sub-section (1;) specifying the amount that the Secretary, on behalf of the Commonwealth, proposes to recover from the insurer, being an amount not exceeding the amount of the sickness benefit paid to that other person in respect of that incapacity." The notice which in this case was served on the insurer specified $8,680.93 as the amount that the applicant's delegate, on behalf of the Commonwealth, proposed to recover from the insurer. That sum the insurer paid to the Commonwealth in response to the notice, service of which imposed on the insurer liability to pay to the Commonwealth either that specified sum or the amount that the insurer was liable to pay to the client to indemnify the client against the liability to make a payment by way of compensation in respect of the incapacity to which the notice related, whichever should be the lesser amount. (See sub-section 115D(6).) Payment of that amount operated as a discharge to the insurer as against the client, and operated as a discharge to the client, the respondent's employer, as against the laability of the employer to make payment by way of compensation to the respondent. (See sub-section 115D(7).) Service of the notice on the insurer had been preceded by a decision om the part of a delegate of the applicant that $8,680.93, rather than a larger sum previously in contemplation, was the amount of the sickness benefit which had been paid to the respondent in respect of the incapacity in respect of which the applicant's employer was liable under the judgment of the Supreme Court to make a payment by way of compensation. Having been apprised of that decision, the respondent's solicitors made a request of the applicant that the decision be reviewed. Section 15 of the Social Security Act 1347 provides for appeal to the applicant from a decision of an officer under that Act. Section 14 authorises review by the applicant, of his own motion, of any such a decision. Sub-section 15A(1) authorises review by the Administrative Appeals Tribunal of a decision of the applicant made on or after 9 September 1380 in pursuance of s.14 or s.15, if the decision of the subordinate officer which 15 the subject of the applicant's consideration in pursuance of the one or the other section 15 a decision that has been reviewed by a Social Security Appeals Tribunal. A decision of the applicant made on or after 9 September 1980 in pursuance of s.14 or s.15 upon a consideration of a subordinate officer's decision which has not been reviewed by the Social Security Appeals Tribunal can be reviewed by the Administrative Appeals Tribunal only if the applicant's decision 1s one in respect of which he "has, at the 5. request of a person, certified in writing that an important principle of general application is involved with respect to entitlement to, or assessment of, a pension, allowance, entitlement or benefit under this Act or with respect to the operation of those provisions of the Health Insurance Act 1973 that relate to disadvantaged persons" : 3.15A(2). The decision of the applicant's delegate that $8,680.93 was the amount to be Specified in the notice to be given the insurer was accordingly referred to a Social Security Appeals Tribunal for review. In November 1985, after that review had been conducted, another delegate of the applicant made a decision affirming the previous decision, of which the respondent's solicitors had requested review. This decision was expressed, perhaps conformably with the verbiage of s.15, as the dismissal of the respondent's appeal against the previous decision. Nothing turns on the verbiage. It was the decision of November 1985 which was the subject of the application to the Administrative Appeals Tribunal. That Tribunal made a decision in writing, on 8 May 1987, an these terms: "The Tribunal decides: 1. To set aside the decision under review. 2. To remit the matter to the respondent with a direction that he consider whether or not there 1s any material to warrant a finding that the applicant was ever qualified to receive sickness benefits, and if so, to calculate the amount of sickness benefits paid during the period(s) he was arquably so qualified. 3. To further direct that the material upon which the respondent bases any such calculation shall be supplied to the applicant and the registry of the Tribunal within 30 days of the date of this decision. Any application by either Party to adduce further material relevant to the question of qualification for Sickness benefits will be considered on its merits. 4. That there be liberty to either party to apply generally and in particular as to what sum should now be paid by the respondent to the applicant." On 22 July 1987, after receiving from the applicant and considering certain further documents and after considering written submissions from both the applicant and the respondent, the Tribunal published a document entitled "Reasons For Directions" which concluded with these words: ",.. I determine that the maximum amount which should be recovered 1s $1,000 and accordingly that the sum payable to the applicant by the respondent 1s $7,680.93 and I so darect." (The roles of applicant and respondent before the Tribunal were the reverse of those roles in this Court.) That which was thus expressed as a direction was treated by the applicant as a "decision" within the meaning of that word in s.44 of the Administrative Appeals Tribunal Act 1975; and from that decision and from the decision in writing of 8 May 1987 appeal has been brought to this Court. The Administrative Appeals Tribunal set aside the decision which it reviewed because 1t concluded (a) that the decision had been reached in the belief and on the basis that the respondent had been qualified to receive all the sickness benefit payments made to him and (b) that the applicant had not been qualified to receive all the sickness benefit payments made to him. There is no reason to doubt the correctness of the first of those two conclusions, and the applicant was not concerned on the hearing of the appeals to question that conclusion. Concerning the other conciusion the applicant contended that the questions which the conclusion resolved had not arisen for determination by the Administrative Appeals Tribunal and, alternatively, that the conclusion was vitiated by error of law. The Tribunal proposed the question whether the respondent had been qualified to receive the sickness benefits paid to him because sub-section 115D(2) conditioned the authority it conferred to serve the notice on the existence of a liability on the insurer to indemnify the employer against the employer's liability to make payments by way of compensation in respect of the incapacity of the respondent and on the respondent's being qualified to receive a sickness benefit in respect of that incapacity. Each of the liability of the employer to make payments of compensation and the qualification of the respondent to receive sickness benefit was in respect of successively recurring periods of time from the date on which the respondent s incapacity for work commenced. The Workers' Compensation Act 1927 (Tas.) prescribed, so far as this case 1S concerned, a weekly Payment during incapacity for work at a rate calculated by reference to what the respondent had been earning before he was incapacitated (s.5(1) and Rule 3 of Schedule 1). But the employer's liability to make weekly payments in respect of incapacity was limited to an aggregate amount equal to 284 times 8. an amount from time to time fixed by the Governor in Council and called in the Act the "basic rate" (s.3(5) and Rule 3(6) of Schedule 1). Because no payment in discharge of the employer's liability to make weekly payments had been made before judgment was pronounced by the Supreme Court on 9 November 1984 and because by that date weekly payments of compensation at the prescribed rate from the time when incapacity commenced would have aggregated more than 284 times the basic rate, the judgment pronounced was for the product of the latter multiplication, $41,634.40 (together with certain amounts in respect of medical treatment which are of no present relevance). If weekly payments of compensation had been made by the employer to the respondent week by week from the date when incapacity commenced, as by the judgment of the Supreme Court it was established that they should have been, those weekly payments would have aggregated $41,634.40 in September 1983. Sub-section 108(1) of the Social Security Act 1947 provided at relevant times: "108.(1) Subject to this Part, a person (not being a person in receipt of a pension under Part IIIT or IV, or an allowance under Part VIIA, or a service pension under the Repatriation Act 1920) is qualified to receive a sickness benefit in respect of a period (in this sub-section referred to as the 'relevant period' if and only if - (a) the person had attained the age of 16 years before the commencement of the relevant period and, being a man, had not attained the age of 65 years, or, being a woman, had not attained the age of 60 years, before the end of the relevant period; (Bb) the person resided in Australia throughout the relevant period and on the date on which he lodged his claim for benefit and - (i) had resided in Australia for a period of not less than 12 months immediately preceding that date; or (i1) satisfies the Director-General that he is likely to remain permanently in Australia; and (c) the person satisfies the Director-General that, throughout the relevant period, he was incapacitated for work by reason of sickness or accident (being an incapacity of a temporary nature) and that he has thereby suffered a loss of salary, wages Or other income." Payments to the respondent of sickness benefit, at the weekly rate prescribed from time to time, were calculated, by the applicant's delegate who decided to serve the notice on the insurer, to have aggregated $8,680.93, the amount specified in the notice, at the time in September 1983 when the weekly payments of workers' compensation would have aggregated $41,634.40. (We were informed that there was an error in calculation, in the respondent s favour, which the applicant was content to ignore.) That delegate, no doubt believing that what the respondent had received in sickness benefits he had been qualified to receive, concluded that the incapacity of the respondent for work during each of the weekly periods between October 1981 and September 1983 was an incapacity in respect of which the insurer was liable to indemnify the employer against the employer's liability to make a payment by way of compensation, and in respect of which the respondent was qualified to receive a sickness benefit. But the Administrative Appeals Tribunal conceived a doubt whether every Payment of sickness benefit made to the respondent had been one which he had been qualified to receive. The doubt was engendered 10. by the Tribunal's conclusion that the respondent's incapacity for work was not "of a temporary nature", within the meaning of that Phrase in paragraph 108(1)(c) of the Social Security Act 1947, and that at some time before September 1983 the evidentiary material before the applicant was such that it would compel the former conclusion in a reasonable mind. Because the whole of the evidentiary material from time to time before the applicant during the period when sickness benefits were being paid was not hefore the Administrative Appeals Tribunal on 8 May 1987, the decision given by the Tribunal on that day was formulated in the terms I have quoted. The primary ground of the appeal was that the decision of the applicant's delegate which the Administrative Appeals Tribunal was asked to review did not comprehend any determination of the question whether, 1n respect of any payment of sickness benefit made to the respondent, he had been qualified to receive it, and that therefore the Tribunal had not been empowered itself to determine any such a question in the course of that review. At material times the respondent was represented by solicitors. Shortly after service on the insurer of the notice under s.115D(2), one of the applicant s senior officers sent to the respondent's solicitors this letter: "This letter 1s to confirm my telephone advice that the delegate of the Secretary has approved a reduction in the amount to be recovered in Mr Riley's case. The amount recoverable has been reduced to $8,680.93 for the period 10 December 1981 to 8 September 1983. ll. This decision was based on the reasons for judgment and the amount awarded. Recovery has been pursued only to the date of expiry of entitlement to weekly compensation. A notice of charge for $8,680.93 has been issued to GRE Insurance who have advised that the settlement monies are to be disbursed shortly." The solicitors responded by a letter in these terms: "Thank you for your letter of the lOth May, 1985, conveying the decision inMr. Riley's case. We ask that the decision be reviewed, and in particular that the officer reviewing the decision has regard to the decision and reasons in the case of Robin Izard, No. T84/2 particularly the deputy President's observations on the total i.nadequacy of the Tasmanian Workers Compensation legislation to compensate a worker for the remainder of his working life." The case to which that letter refers was concerned with the application of s.115E of the Social Security Act 1947, which at relevant times provided: "For the purposes of this Division, the Secretary may treat the whole or a part of Payment by way of compensation that has' been, or that will be, made in respect of an incapacity as not having been made or as not being, or as not likely to become, liable to be made, if the Secretary considers that, in the special circumstances of the case, 1t 15 appropriate to do soa." The respondent's appeal, which the solicitors' letter was treated, no doubt rightly, as instituting under s.15, was referred to a Social Security Appeals Tribunal by which the decision against which appeal was brought might be reviewed. That 12. Tribunal conducted an interview with the respondent in the presence of his wife and a member of the firm of solicitors acting for him, who addressed the Tribunal on his behalf. What was put by and on behalf of the respondent to that Tribunal concerned only the discretionary considerations relevant to an exercise of the power conferred by s.115E. There 1s nothing in the material before the Administrative Appeals Tribunal to suggest that either the Social Security Appeals Tribunal or the applicant's delegate who determined the appeal after considering the recommendations of the latter Tribunal adverted to the possibility that the respondent might not have been qualified to receive any of the payments of sickness benefit made to him. The delegate who determined the appeal communicated his decision to the applicant ina letter dated 3 December 1985 which included the following passage: "IT am writing to you about your appeal to the Tasmania Social Security Appeals Tribunal (SSAT) against a decision of an officer of the Department of Social Security to refuse to refund the amount of $8680.93 of sickness benefit which was recovered from your compensation judgement. The SSAT has reviewed that decision and has made a number of recommendations depending upon the outcome of your superannuation action. It also recommended, if a decision were to be made on available information, that 50% of the recovered sickness benefit he refunded to you. When a SSAT''s recommendation is different from a Departmental decision, the matter 1s referred to the Secretary of the Department, or his delegate, for resolution. Your appeal and the SSAT's recommendation were forwarded to me, Mr P McDougall a delegate of the Secretary, to decide the matter. 13. I have decided that your appeal should be dismissed and that the decision against which you appealed should be affirmed. In reaching this decision, I had regard to the attached relevant provisions of the Social Security Act 1947 (the Act), namely sub-section 115(1), sub-section 115(2), sub-section 115B(3), section 115E. I noted that you were awarded workers' compensation for the same incapacity and for the same period for which you were paid sickness benefit. As such, the amount of $8680.93 was properly recovered from your compensation figure. I do not agree that the superannuation action with 1ts high costs should be grounds for exercising the discretion in S115E. You received the maximum compensation apparently allowable under the relevant Act and the Original claim for repayment of sickness benefit was substantially reduced. The action taken in relation to superannuation, while costly since you have lost, does not relate to your compensation award. Very little reason for this action has been given and as you received a substantial compensation sum and you own your home, your case 1s different in these and other respects from the AAT decision of Izard relied upon by your solicitor. Having regard to the above factors I considered that the decision to retain the amount of $8,680.93 was correct. Accordingly, I decided that your appeal should be dismissed." There are some curlous observations in that passage, but they do not, I think, affect the determination of the appeal to this Court. The respondent's appeal was not to the "Tasmania Social Security Appeals Tribunal". If there was an appeal, it was to the applicant. Sub-section 115B(3) had no direct relevance to any decision the delegate had made : it authorises service of a notice directing payment to the Commonwealth of an amount specified in the notice, being an amount equal to the amount of 14. sickness benefit received by the person served in respect of an incapacity or the amount of payments by way of compensation received by that person in respect of that incapacity, whichever 1s the lesser amount. The recoupment contemplated by sub-section 115B(3) had been achieved before the delegate made his decision, by the insurer's payment of $8,680.93 in response to the notice served on the insurer in pursuance of s.115D(2), and no question of service of a notice under s.115B(3) could have arisen : what the delegate had to decide, as the letter shows, was whether any part of the amount paid by the insurer was to be refunded, either to the insurer or, as the letter contemplates, directly to the respondent. Those curiosities aside, the letter indicates, as does the other material before the Administrative Apeals Tribunal, that what the respondent sought by his appeal to the applicant, and what the applicant's delegate and the Social Security Appeals Tribunal considered to be the real issue in the determination of that appeal, was an exercise of the discretionary power conferred by s.115E, and nothing else. On the other hand, the decision of which review was sought - or, to adopt the language of s.15, against which appeal was made - was a decision to recoup by one of the means afforded by Division 3A of Part VII payments of sickness benefit aggregating $8,680.93, a decision the lawfulness of which depended on, inter alia, the respondent's having been qualified to receive those payments. By the time the determination of the appeal was made the recoupment had been achieved by the insurer's payment in response to the notice served on it. That circumstance led to the description, in the first paragraph of the passage I 15. have quoted from the letter dated 3 December 1985, of the decision under appeal as "a decision .... to refuse to refund the amount of $8,680.93 of sickness benefit which was recovered from your compensation judgment". That description was in substance the description which the respondent's solicitors gave of the decision for review of which they made application in writing, pursuant to sub-section 29(1) of the Administrative Appeals Tribunal : "The decision to retain $8,680.93 as repayable sickness benefits out of Mr. Riley's Workers' Compensation monies." The statement lodged with the Administrative Appeals Tribunal pursuant to s.37(1)(a) of the Administrative Appeals Tribunal Act 1375 asserted: "THE DECISION of the delegate of the SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY was to affirm a decision of an officer: (a) to recover sickness benefit of $8680.93 pursuant to section 115D of the Social Security Act 1947; and (b) not to find that special circumstances existed as grounds for exercising the discretion in section 115E of the Act." In my opinion the material before the Administrative Appeals Tribunal demonstrated that the subject matter of the decision for review of which application had been made to it had been defined by the conduct of the respondent's solicitors and by the deliberations of the applicant s officers as the question whether the recoupment of sickness benefits which had taken place should be undone, wholly or in part, by an exercise of the discretionary power conferred by s.115E. If the subject matter for decision had been thus defined, then the decision was in my opinion defined in terms of an answer to that question, whatever 16. the terms in which the parties before the Tribunal described the decision in their communications to the Tribunal. If the respondent's solicitors had done nothing more in definition of what they sought on the respondent's behalf than to send to the applicant the letter I have quoted, the subject matter of that decision would not have been so confined, in my opinion, for the decision of the subordinate officer to which that letter refers required a consideration of all the criteria specified in s.115D(2). Or if the respondent, not being skilled in the law, had himself alone dealt with the applicant's officers, 1t might have been impossible so to confine that subject matter by reference to what he had said and what he had omitted to say. But the conduct of the respondent's solicitors, by the member of the firm who presented the respondent's case to the Social Security Appeals Tribunal and through that Tribunal to the applicant s delegate, did in my opinion tacitly propose the subject matter for the latter's decision, and the delegate acted upon the proposal, without adverting to the question to which the Administrative Appeals Tribunal turned its attention. By those means the decision for review of which application was made to that Tribunal was in my opinion defined in the terms I have stated. If the decision be correctly defined in terms which limit it to the choice between exercising and not exercising the power conferred by s.115E and to the extent of any exercise of that power, the authority of the Tribunal upon review is in my opinion limited to making that choice on the material before it and, if the choice 1s for exercise, to determine the extent to which the power will be exercised. 17. Counsel for the applicant submitted that, if the Administrative Appeals Tribunal's authority extended to determining whether the decision to serve the notice on the insurer had followed fulfilment of the conditions specified in sub-section 115D(2), there was no evidence to support the conclusion of that Tribunal that the condition specified by the Clause, "who .... was qualified to receive a sickness benefit in respect of that incapacity", in that sub-section was not fulfilled 1n respect of some of the periods of incapacity comprehended by the words "that incapacity" in that clause. I would uphold that submission. The criteria of qualification to receive a sickness benefit are stated in sub-section 108(1). It is to be observed that the requirement specified in 5s.108(1)(c)1s that a certain belief be induced in the mind of the applicant. No doubt there 15 a sense in which each requirement specified in the sub-section 15 of persuasion of that mind, for payment of the benefit is conditioned upon the making of a claim for it (s.135TA(1)(f)), or for some other, Similar pension, allowance or benefit (s.135TB(5)), and upon the applicant's favourable determination of the claim (s.135TA(3)). But the distinction is plainly drawn in s.108 and in other sections of the Act (as, for example, ss.105J, 105JA, 1057B, 107) between, on the one hand, a requirement which 1s stated without reference to the applicant's belief as to whether it has been satisfied and, on the other hand, a requirement of the formation of a belief by the applicant. It is unnecessary, and in the absence of argument on the subject it would be unwise, to explore the effect of the distinction in 18. relation to the operation of sections such as ss5.14, 16 and 135TJ. It can, I think, be concluded that a payment of sickness benefit was one which the recipient "was qualified to receive", within the meaning of those words in s.115D(2), in respect of a period if before the payment was made the recipient had satisfied the applicant (or one of his delegates) of the matters specified in one or other sub-paragraph of paragraph 108(1)(c), as well as satisfying the other requirements of sub-section 108(1). In my opinion the distinction does have this consequence : whereas evidence, before a person (whether the applicant or his delegate or, on review the Administrative Appeals Tribunal) engaged in determining whether or not to serve the notice contemplated by s.1150(2), that in fact the respondent had attained the age of 55 years before he suffered the heart attack would tend to prove that he was not qualified to receive any of the sickness benefits paid to him (because the requirement specified in s.108(1)(a) had not been satisfied), evidence before such a person so engaged that in fact the respondent was not incapacitated for work after he suffered the heart attack, or that his incapacity was not "of a temporary nature", would not tend to prove that he was not qualified to receive one or more of those payments. The qualification for benefits which s.108(1)(c) prescribed was not incapacity of a temporary nature but the inducing in the applicant or his delegate at a particular time in the past, shortly before the benefits were paid, of a belief concerning incapacity. While 1t may be assumed, but without deciding, that the formation of the belief was, or resulted in, the making, shortly before the benefits were paid, of a decision susceptible of review under s.14, no such a review was ever undertaken, so far as appears. 19, Even if the Administrative Appeals Tribunal had been authorised to consider whether the condition prescribed by the words, "person who .... was qualified to receive a sickness benefit in respect of that incapacity", 1m s.115D(2) were satisfied, that would not have authorised enquiry whether the belief formed in 1981 or 1982 or 1983 had been justified, or enquiry whether the evidentiary Material before the Tribunal induced the formation of such a belief in the mind of the Tribunal. If the Tribunal had been authorised to consider that question, the enquiry would have been whether the evidentiary material before it showed that the applicant's delegate who authorised payment of the benefits had been satisfied of the matters specified in one or other sub-paragraph of s.108(1)(c). There is nothing to suggest that he had not. An appeal to this Court from a decision of the Administrative Appeals Tribunal invokes an exercise of original jurisdiction. Here that jurisdiction was invoked in respect of each of two decisions, but both decisions were given in the same proceeding in the Tribunal, and, if it matters, only one notice of appeal was filed. I think the two appeals may be treated as comprehended in the one proceeding in this Court, for reference to which the word "appeal" is prescribed by the Administrative @als Tribunal Act 1975. I would dispose of the appeal by ordering that the decision of the Tribunal made on 8 May 1987 and the decision of the Tribunal made on 22 July 1987 be set aside and that the Tribunal further hear and determine according to law the proceeding in which the said decisions were made. It should be ordered, in accordance with an arrangement between the parties, 20. that the respondent's costs of the appeal be paid by the applicant. I certify that this and the 19 preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Jenkinson. Dated: 12 November, 1387 ATTACHMENT A Title of Action SECRETARY TO THE DEPARTMENT OF SOCIAL SECURITY v. NOEL F. RILEY File Number T. No. G 3 of 1987 Dates of Hearing : 28 and 29 September 1987 12 November 1387 ae Judgment Delivered Counsel for Applicant : Dr. G. Flick Solicitor for Applicant : Australian Government Solicitor Mr. K. Read Counsel for Respondent Solicitors for Respondent: Jennings Elliott Signed . Som. 2% .dcdicd... Date 12 November 1987