Gagliardi v Secretary, Department of Family & Community Services [2003] FCA 27

FEDERAL COURT OF AUSTRALIA

Gagliardi v Secretary, Department of Family & Community Services [2003] FCA 27 BENITO GAGLIARDI v SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES S 237 of 2002 MANSFIELD J 30 JANUARY 2003 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 237 OF 2002

BETWEEN: BENITO GAGLIARDI

APPLICANT

AND: SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 30 JANUARY 2003

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay to the respondent costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 237 OF 2002

BETWEEN: BENITO GAGLIARDI

APPLICANT

AND: SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

RESPONDENT

JUDGE: MANSFIELD J

DATE: 30 JANUARY 2003

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application by way of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal on 21 October 2002 affirmed a decision of the Social Security Appeals Tribunal(the SSAT) dated 13 September 2001 which in turn affirmed a decision of an Authorised Review Officer of 5 June 2001, itself affirming a decision of a delegate of the respondent of 5 January 2001. Each decision was to the effect that the applicant had received the correct amount by way of age pension under the Social Security Act 1991 (Cth) (the Social Security Act). The Social Security (Administration) Act 1999 (Cth) (the Administration Act) provides for the administration of the Social Security Act and for related purposes. 2 The applicant was born in Italy on 19 February 1933. For many years he has been eligible for, and in receipt of, an age pension under the Social Security Act. For part of the period for which he has received the age pension in the past, he has lived in Italy. In particular, he lived in Italy between 25 April 2000 and 17 November 2000. He has also lived in Italy for substantial periods of time prior to those dates. The applicant is a married man. Whilst living in Australia he and his wife each receive the age pension at the married rate. For the periods the applicant has lived in Italy, his wife has apparently remained in Australia and so they are each then entitled to the age pension at the single person rate. 3 It is difficult to identify what errors of law the applicant now asserts on the part of the Tribunal, partly because his complaints to administrative decision makers have not been consistently maintained. 4 The SSAT identified four issues about which the applicant was concerned. They were: (1) that the first payment of his age pension received when he was in Italy in 2000 was less than that which he ought to have received - his claim was for six days payment at $26.60 amounting for $159.60, and that he did not receive a four weekly payment due in November 2000 until much later (the timing issue); (2) that the applicant claimed to have been underpaid benefits of $164.68 during the financial year ended 30 June 2001 (the underpayment issue); (3) that the means by which the applicant was paid his age pension whilst living in Italy, namely by cheque in US dollars drawn on a US bank, was unlawful and resulted in him suffering losses of about $2000 (the means of payment issue); and (4) that the applicant claimed reimbursement of $5140 for airfares from Italy to Australia which, he said, were necessary in order for him to address in person errors made from time to time in relation to the amount of his age pension entitlement (the travel expenses issue). 5 The SSAT concluded that none of the applicant's concerns were correct. 6 As to the timing issue, it found that in the period April 2000 to November 2000 the applicant received the age pension at the correct rate. For the period from 11 April 2000 to 18 October 2000, he was paid by overseas cheque. For the period from 19 October 2000 to 15 November 2000, he was paid by cheque paid to his Australian bank account (belatedly, due to a misunderstanding) on 8 January 2001. The explanation for him perceiving a shortfall of six days payment was because one payment was for a 22 day period rather than a 28 day period to bring his payments into a regular cycle. The last payment of age pension received by the applicant direct to his Australian bank account before he left for Italy was made on 13 April 2000 and covered the period up to 10 April 2000. He then went overseas. For the period 11 April 2000 to 3 May 2000, a period of 22 days, he received an overseas cheque which was paid on 17 May 2000. He was then paid by overseas cheque on a four weekly cycle. He then received his correct entitlement between 11 April 2000 and 18 October 2000. The applicant then requested that his further entitlement be paid to his Australian bank account, as he intended returning to Australia. That request was not immediately actioned, but subsequently on 8 January 2001 he received payment in arrears to cover the period from 19 October 2000 to 15 November 2000. Thereafter the applicant was in Australia and he received payment to his Australian bank account in circumstances about which he does not complain. The SSAT specifically found that the payment to cover the period to 3 May 2000, a period of 22 days, was due to the change of payment cycle from fortnightly (in Australia) to four weekly (overseas) and that the calculation of the period of 22 days was to bring the cycle into a four weekly period. 7 As to the underpayment issue, the SSAT noted that the PAYG salary statements for the financial year ended 30 June 2001 of the applicant and his wife showed a discrepancy in the amount received by the applicant and by his wife of $164.68, and that there was also information pointing to a difference in the amounts deposited to the joint bank account on 1 February 2001 (after his return to Australia) with the applicant's deposit being $63.14 less than that of his wife. The SSAT did not formally resolve the underpayment issue because, it said, it had not previously been reviewed by an Authorised Review Officer. However, it proffered the explanation that the difference of $164.68 was because his wife's payment cycle was a little different from his own payment cycle. In fact the PAYG salary statement of the applicant for the period ended 30 June 2001 indicated that it covered the period from 12 July 2000 to 19 June 2001 whilst the PAYG salary statement of his wife indicated that it covered the period from 4 July 2000 to 19 June 2001. The SSAT noted that the difference of one week may provide a possible explanation for the difference between the two PAYG salary statements. The Tribunal noted further that the material before it indicated that the payment on 1 February 2001 to the applicant was less than that to his wife in the sum of $63.14 because $63.14 was withheld towards a debt raised by the respondent on 28 December 2000 against the applicant in relation to marital status, that is he had been overpaid because he continued to receive the single rate for a time after he had returned to Australia and rejoined his wife. 8 The means of payment issue was explained in the following circumstances. During the time he was in Italy in 2000, the applicant was paid the age pension by presentation to him of the amount of the benefit by cheque drawn on a US bank in US dollars, so that it was necessary for him to cash or deposit that cheque to convert it to Italian lira. In doing so, he claimed that the bank converting the US dollar cheque to Italian lira charged him a commission. He also said that he suffered a further expense apparently by reason of an unspecified deterioration in the exchange rate between the US dollar and the Italian lira in the period of time between the time when the cheque was first drawn in the US dollar equivalent of the applicant's pension entitlement in Australian dollars and the time of its receipt and presentation. He claims that in the period April to November 2000 (although other material might suggest that his claim also was to cover the periods February 1990 to March 1994 and February 1997 to November 2000) he lost an amount in the order of $2000 by those "expenses". The SSAT indicated that it did not have power to go beyond determining whether the applicant had been paid his correct age pension entitlement, and could not address issues arising from the consequences of him living in Italy and the associated expenses in accessing his entitlement. It did nevertheless deal with the issue to some extent. It referred to the Social Security (International Agreements) Act 1999 (Cth) (the Agreements Act) and to the fact that on 13 September 1993 Australia and the Republic of Italy entered into an Agreement on Social Security (the Agreement), which is contained in Schedule 2 of the Agreements Act. It said that the Agreement does not prescribe for the manner in which payments are to be made to persons such as the applicant overseas, and that there was no error on the part of the respondent in making the payments of age pension to the applicant by way of cheque drawn on a US bank in US dollars in the circumstances. 9 As to the travel expenses issue, the SSAT also concluded that it again had no power to order that the air fares be reimbursed, as there is no provision in the Social Security Act for that purpose. Moreover, it said, the issue had not previously been raised with the respondent or reviewed by an Authorised Review Officer so that it had no jurisdiction to review the matter. 10 The SSAT correctly identified that not all the issues which the applicant raised before it had been raised before and considered by the Authorised Review Officer whose decision of 5 June 2001 was under review. That decision referred to three issues only: the timing issue, but with the focus on the overall correctness of the rate of payments made whilst the applicant was in Italy in 2000; the delay in receiving the November 2000 cheque (explained in a letter from the delegate of the respondent to the applicant on 5 January 2001); and thirdly the means of payment issue. The Authorised Review Officer responded to the means of payment issue in the following terms: "Overseas customers do not, at present, have this convenience. So Centrelink has the responsibility of sending money to many different countries and try to do it in a way which costs our customers as little as possible to cash their payments in their local currency and which also costs as little as possible to the Australian taxpayers. Sending cheques in Australian dollars has never been a satisfactory method. No matter what the true exchange rate between Australia and any particular overseas country may be, most foreign banks are reluctant to cash Australian cheques. Over the years we have made payments in pounds sterling (especially to customers in the United Kingdom) and in US dollars (to most other countries). Those two currencies were the most widely acceptable. There is, however, still the problem of the exchange rate. The value of the payment is converted from Australian dollars to American dollars using the exchange rate on the day and the cheque is drawn in American dollars on a large American bank with strong international contacts. This ensures that the cheques will be easily recognised and easily cashed overseas. When they are cashed the daily exchange rate from US dollars to the local currency is applied and the customer is paid that amount, less a bank fee which they impose for their service. The fees vary from bank to bank and from country to country. To reduce the costs to our customers we send cheques four-weekly rather than every fortnight, as this halves the bank charges." That letter also indicated that the respondent was in the process of arranging for those entitled to pensions under the Social Security Act who live in overseas countries with automated clearing house facilities (that is full electronic banking facilities) should soon be able to have their payments made by direct deposit into an overseas bank account or into an Australian bank account that they can access overseas. That arrangement was anticipated to be in place by about the end of 2001, including for Italy. The SSAT also accepted that information. 11 Hence, the SSAT was correct to identify that neither the underpayment issue nor the travel expenses issue had been put before, or considered by, the Authorised Review Officer whose decision it was reviewing. 12 The applicant had in addition raised other issues with the respondent over time. The Authorised Review Officer's decision of 5 June 2001 referred to an earlier decision of a delegate of the respondent of 5 January 2001 concerning the timing issue. An Authorised Review Officer on 3 August 2000 had reviewed a decision about the rate at which the applicant received his age pension from 25 April 2000 when he left Australia and so was no longer living as a member of a couple but was entitled to a single rate. The calculation of his entitlement was at the "member of a couple" rate from 11 to 24 April 2000, and then at the single rate. A delegate of the respondent decided the single rate should be applied from 25 April 2000. On 20 June 2000 an officer of the respondent reviewed the decision to pay him at the single rate only from 25 April 2000. He was allowed an extra day's pension. Then on 3 August 2000 an Authorised Review Officer affirmed the decision to pay him at the increased (single) rate from 25 April 2000. That issue has not since been revived. 13 The timing issue also received considerable attention. On 10 May 2000 the applicant was notified by the respondent that his request for payment of his age pension to his overseas address had been approved. The letter indicated that he had last been paid in Australia on 13 April 2000. It said he would receive a cheque for the period 11 April to 3 May 2000 to align him with his new payment cycle, and would thereafter receive regular four weekly payments from 8 June 2000. It explained there may be a slight delay in receiving his payment cheques. It appears that promptly the applicant complained that he had not received payment for the period 4 to 9 May 2000. On 28 August 2000 he was provided with printouts showing that he had been paid for that period, and that the payment received on 8 June 2000 covered the period from 4 May to 31 May 2000. It explained that on 6 July 2000 he received a further payment for the period 1 June to 28 June 2000. It explained that he would then receive further cheques for each four weekly period. He sought review of the calculation of his entitlement between 11 April and 3 May 2000. On 25 June 2000 a delegate affirmed the calculation leading to the payment made on 17 May 2000 (subject to the additional amount payable for the extra day's rate at a single rate incorporated in his cheque received on 6 July 2000). The letter explained how those calculations were made. The subsequent review of that decision by an Authorised Review Officer and by the SSAT has been referred to above. 14 The application to the Tribunal sought review of the SSAT decision of 13 September 2001. It did not identify the respects in which the SSAT decision was sought to be reviewed by the Tribunal. The Tribunal's reasons for decision identified the issue as being whether the applicant received his correct age pension entitlement for the period that he was overseas in 2000. It appears from the Tribunal's reasons that the applicant also was concerned about the way in which his age pension was paid whilst he was overseas. He apparently contended that by virtue of the Agreement, the manner of payment was inconsistent with the provision in Art 21 that no government administrative fees or charges should be imposed so as to reduce the amount of the payment. The Tribunal concluded that the means of payment did not contravene the Agreement, that the applicant was paid his correct entitlement for the period he was overseas during 2000, and that any loss or expense suffered or incurred by way of commission payments or conversion rate when converting cheques to Italian lira was not through any fault of the respondent. That is, the Tribunal seems to have addressed only the timing issue and the means of payment issue. 15 The appeal to this Court similarly is obscure as to the matters in which it is now alleged the Tribunal erred in law. It was prepared by the applicant in person. It appears to complain as to whether he had received the correct amount of age pension during the time he had been overseas in Italy in 2000, and of the loss he had suffered by having been paid in American dollars instead of Italian lira as being in contravention of the Agreement. The applicant also submitted a letter received on 20 January 2003 which asserts that he had received regular age pension payments on Wednesdays for many years, but that whilst in Italy he received them slightly later and in a way which required him to convert to local currency at an expense. He complained about having been paid in that manner. He complained of having been paid at the married rate on 25 April 2000. His "major concern" was having been paid on 4 January 2001 $142 instead of $331 because of the wrong dates. He refers to the decisions of an Authorised Review Officer of 5 August 2001 and before the Tribunal. A further document was submitted dated 22 January 2003 signed by the applicant. It was typed. It was clearly not expressed in terms or language which he commonly used. At the hearing he indicated that the document had been prepared by another person in consultation with him, but that he did not entirely endorse it. He had not read it. That document identified that he claimed compensatory damages for two aspects: 1. $2000 "for the unfavourable and penalising double exchange rate in US currency which is unduly and unlawfully applied by" the respondent; and 2. $5140 as reimbursement for costs incurred in returning to Australia to correct errors constantly made by (the respondent). He also referred to whether he had received his correct entitlement to an age pension between April and October 2000 and whether he received a correct payment from November 2000 as arrears in January 2001, although it said that those matters were "not the core of the issues". It said the real complaint was about the unfairness of a system that allows the respondent to pay age pension in Italy in US dollars so that, when the "double exchange rate" is applied, Australians living in Italy lose money as he had. 16 At the hearing, in his discursive oral submissions, he seemed mainly to be concerned about the timing of the payments of his pension moneys. He was asked specifically whether he sought still to complain that he should be paid $2000 for the commission foreign exchange losses (the means of payment issue). He said no. He was asked whether he still sought to pursue his claim for $5130 (the travel expenses issue). He said no. He was asked precisely what it was about which he complained. He identified only an alleged underpayment on 5 January 2001 when he received $142 which he said should have been $331. The complaint was not one which, in terms, was identified to and dealt with by the Tribunal. Consequently, there is no error of law in that respect on the part of the Tribunal. The application, in the circumstances, should be dismissed for that reason alone. However, I think it is preferable to address the other matters to which the documents provided to the Court by or on behalf of the applicant refer, rather than limit consideration to his only (new) complaint as expressed at the hearing. 17 The applicant did not suggest that the Tribunal failed to address any claim which he presented to it. His application to the Tribunal did not identify what matters the Tribunal was required to address, so I identify those matters from the Tribunal's reasons. As I have indicated, the applicant only raised the timing issue and the means of payment issue before the Tribunal. Thus there is no legal error on the part of the Tribunal in not addressing the underpayments issue or the travel expenses issue as it was not called upon to do so. Moreover, despite one document presented on the appeal identifying an ongoing concern about the travel expenses issue, the applicant positively and expressly said he did not pursue that matter. 18 The Tribunal dealt fully with the timing issue. It found the applicant had been paid the age pension whilst he was in Italy in 2000 at the correct rate and for the correct period. Its conclusions reflected what had earlier been decided by the SSAT and by Authorised Review Officers and delegates of the respondent. Its findings of fact were based on material available to it. They disclose no error of law in its approach. In fact, the material before the Tribunal amply justifies its findings of fact. No error of law in its consideration of that issue is apparent to me; nor was any identified by the applicant. 19 The Tribunal also dealt with the means of payment issue. The Agreement has legislative effect: ss 5 and 6 of the Agreements Act. It constituted part of Sch 2 of the Agreements Act only from 7 June 2000: Social Security (International Agreements) Act 1999 Amendment Regulations 2000 (No.1) (Statutory Rules 2000 No.104, Gazetted 15 June 2000). Schedule 2 of the Amendments Act previously included a predecessor of the Agreement made on 23 April 1986. Under the Agreement, or its predecessor, there is no Article which directs or requires the payment of an age pension to an eligible person resident overseas in a particular manner. Article 4 of the Agreement requires the payment of a benefit under the Agreement to be made "without deduction for government administrative fees and charges for processing and paying that benefit". The payment of the age pension to the applicant in US dollars by cheque was not reduced by any government administrative fees or charges or costs in converting the payment from Australian dollars to US dollars to present to the applicant. No other Article of the Agreement was identified as being, or so far as I can see was, relevant. The Tribunal is not shown to have committed legal error in concluding that the respondent did not contravene the Agreement in the circumstances. The means payments to the applicant whilst overseas in the circumstances were in the administrative discretion of the respondent: see ss 43(2) and 52 of the Administrative Act. That discretion is not shown to have been exercised unlawfully. In addition, the applicant in oral submissions said he did not now complain of any legal error on the part of the Tribunal in regard to the travel expenses issue. 20 Hence, on the two issues addressed by the Tribunal, only one might have been the subject of ongoing complaint by the applicant but in any event I discern no legal error by the Tribunal in dealing with those two issues. 21 Issues about the day of the week the applicant was paid his age pension whilst in Italy in 2000, about not having been paid at the single rate for a short time whilst he was in Italy in April 2000, and about an erroneous payment made on 4 January 2001 (unless part of the timing issue which I have dealt with above), were not raised before the Tribunal. For reasons already given, they cannot therefore show legal error on its part. 22 The application must be dismissed. I see no reason why the normal rule as to costs should not apply. The applicant must pay the respondent's costs of the application. 23 Finally, I remark upon the careful, helpful, thorough and courteous terms in which officers of the respondent, Authorised Review Officers, the SSAT and the Tribunal have endeavoured to deal with the applicant's various complaints from time to time. In particular, a careful reading of correspondence from officers of the respondent and Authorised Review Officers should have readily satisfied the applicant that he received his age pension entitlement at the correct rate and for the full period during his absence in Italy during 2000. That material also well explained why he was paid in US dollars by cheque. As it happened, on the present application the applicant no longer maintained his complaint on that issue. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.