Milgate, Lorraine Janette v Secretary, Department of Social Security [1998] FCA 533

FEDERAL COURT OF AUSTRALIA ADMINISTRATIVE LAW – Social Security Act 1991 (Cth) – no point of principle

Administrative Appeals Tribunal Act 1975 (Cth) Social Security Act 1991 (Cth) Department of Social Security v Hulls (1991)13 AAR 414, cited Commonwealth of Australia v Daniels (1994) 33 ALD 111, cited

LORRAINE JANETTE MILGATE v

SECRETARY, DEPARTMENT OF SOCIAL SECURITY

NG 7 of 1998

BRANSON J

SYDNEY

19 MAY 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 7 of 1998

BETWEEN: LORRAINE JANETTE MILGATE

Applicant

AND: SECRETARY, DEPARTMENT OF SOCIAL SECURITY Respondent

JUDGE(S): BRANSON J

DATE OF ORDER: 19 MAY 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 7 of 1998

BETWEEN: LORRAINE JANETTE MILGATE

Applicant

AND: secretary, department of SOCIAL SECURITY

Respondent

JUDGE(S): BRANSON J

DATE: 19 MAY 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

This is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") against a decision of the Administrative Appeals Tribunal ("the AAT") dated 24 December 1997. On that day the AAT affirmed a decision of the Social Security Appeals Tribunal by which that Tribunal had affirmed a decision of an authorised review officer, who had in turn affirmed a decision of a delegate of the respondent ("the delegate"). The decision of the delegate was to determine pursuant to s 1166 of the Social Security Act 1991 (Cth) ("the Act") that the applicant was liable to pay to the Commonwealth the amount of $6,393.50.

Section 1166 of the Act authorises the making of such a determination in circumstances in which a person has received compensation in the form of a lump sum and has also received payment during "the lump sum preclusion period" of one of the social security payments defined by s 17 of the Act as a "compensation affected payment". Subsections 1165 (3), (4) and (5) of the Act provide a method of calculating for any particular case "the lump sum preclusion period". Miss Milgate did not have legal representation for the purposes of the appeal, nor I deduce, in the preparation of her application for an order of review. However, it is plain enough that her complaint is that there is no statutory or other basis for the decision of the delegate that she is liable to make a payment to the Commonwealth pursuant to s 1166 of the Act or at all. In her application she describes the sum of $6,393.50 as having been stolen from her by the Department of Social Security. It appears that the applicant has not worked since she underwent brain surgery, for the second time, in about 1986. Nonetheless she places weight on the fact that, under the Act, she was entitled to earn $30 per week without affecting her pension entitlement and that, as the loss of earnings component of her damages award was calculated on this basis, she should not have been required to make any repayment to the Commonwealth. She further places weight on the fact that the medical basis for the payment of the pension to her is unrelated to the injuries for which she received an award of compensation.