FEDERAL COURT OF AUSTRALIA Matejic v Secretary, Department of Family and Community Services [2003] FCA 40 ADMINISTRATIVE LAW - application for review of decision of Administrative Appeals Tribunal affirming decision of Social Securities Appeal Tribunal to cancel disability support pension and recover overpayment - whether reviewable error disclosed - whether applicants case largely concerned with factual findings - whether circumstances disclose denial procedural fairness Statutes Social Security Act 1991 (Cth) ss 94(1), 94(2), 94(5), 1237 Social Security Administration Act 1989 s 80 Cases Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1 Cited Appl Waterford v The Commonwealth (1987) 163 CLR 54 Cited Appl LOU MATEJIC and NELIA MATEJIC v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Q139 of 2002 KIEFEL J BRISBANE 6 FEBRUARY 2003 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q139 OF 2002 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR O RINAUDO (MEMBER) BETWEEN: LOU MATEJIC and NELIA MATEJIC APPLICANT AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT JUDGE: KIEFEL J DATE OF ORDER: 6 FEBRUARY 2003 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's 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 Q139 OF 2002 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR O RINAUDO (MEMBER) BETWEEN: LOU MATEJIC and NELIA MATEJIC APPLICANT AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT JUDGE: KIEFEL J DATE: 6 FEBRUARY 2003 PLACE: BRISBANE REASONS FOR JUDGMENT 1 On 2 August 2002, the Administrative Appeals Tribunal (the "AAT") affirmed the decision of the Social Securities Appeal Tribunal dated 4 October 2001, which had affirmed the decision of a delegate of Centrelink to cancel the applicant's social security benefits and to raise and recover an overpayment of benefits made to them in the period from 1 July 1993 to 28 March 2000. Mr Matejic had been in receipt of a disability support pension (previously referred to as an invalid pension) from July 1987. Mrs Matejic received a wife's pension which was dependent upon Mr Matejic's pension. The Tribunal records Centrelink as having calculated the overpayment at $50,333.66 each. The total amount however would appear to be $100,887.32. Mr and Mrs Matejic appeal from the decision of the AAT. 2 Section 94(1) of the Social Security Act 1991 (Cth)('the Act")refers to the qualification for a disability pension. Section 94(1)(c)(i) refers to a continual inability to work as necessary for this type of pension. Those words are defined in s 94(2) as meaning an impairment of itself sufficient to prevent work within the next two years. Work is defined as at "30 hours per week" at award wages or above (s 94(5)). 3 Section 1223(1) of the Act provides that if a person is not qualified for the payment then an amount may be raised as a debt and recovered. The power to cancel is given by s 80 of the Social Security Administration Act 1989(sub-s 1) and pursuant to s 1237 Social Security Act, the secretary may waive whole or part of a debt. 4 There was evidence before the Tribunal from the Queensland Building Services Authority showing building work undertaken under Mr Matejic's building licence. In the period 1993 to 1998, there were some 11 jobs undertaken having a total value of nearly $400,000. Bank account records in the period continuing through to March 2000 show sums of various amounts deposited to Mr Matejic's account and totalling over $300,000. 5 Before the Tribunal Mr Matejic attempted to explain that he was working under duress, he was not paid for the work, he only worked for short periods and in a kind of supervisory capacity. He had not lodged tax returns in this period. He acknowledged that he had advertised for work in the Yellow Pages but said that he had never earned more than $75 per week. He had received $42,000 in Gold Lotto prizes and in 1995/1996 he had won over $24,000, he said. He produced receipts for prizes totalling $3,000. 6 The Tribunal did not accept that the substantial sums of money going through Mr Matejic's account could have been paid to someone engaged only a supervisory role. It did not accept that he earned only $75 per week in the period. The Tribunal found that Mr Matejic had undertaken work and earned income in the relevant period and possibly longer. The fact that he was capable of work was evidenced by video recordings taken over some days and showing him undertaking activities usual for a builder and which were of a strenuous and heavy nature and over long periods of time. The Tribunal accepted the evidence of Dr Yang that Mr Matejic's orthopaedic conditions did not prevent him from being able to perform at least light, semi-sedentary, work on a full-time basis. Indeed it considered that the video showed he was capable of more. In any event it found that he was capable of doing work and that the decision to cease his disability support pension and Mrs Matejic's wife pension were correctly made. It was satisfied that he was capable of working in the period and was not qualified to receive the pension. It followed that Mrs Matejic was also ineligible to receive her pension during the period. The Tribunal was therefore satisfied that the debt was correctly raised. 7 So far as concerned the possible exercise of the discretion to waive all or part of the debt, the Tribunal found that they knowingly failed to comply with their obligations to report income. They had been notified and advised of those obligations and failed to notify Centrelink of Mr Matejic's earnings. It was not appropriate in these circumstances to exercise the discretion. 8 Mr Matejic's case largely concerned questions of fact. The jurisdiction of this Court in proceedings of this kind is not to review the Tribunal's factual findings. It is confined to errors of law: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1. It follows that so long as the Tribunal applied correct legal principles, an error in its fact-finding process will not be reviewable: Waterford v The Commonwealth (1987) 163 CLR 54, 77-78. 9 Mr Matejic's case was that he was entitled to earn $75 per week without affecting his pension and that it had not been proven "by hard evidence" that he had earned more than this amount or that he had received $300,000 in total. In this regard Mr Matejic sought to put before this Court further evidence, some cheque butts for the years 1995 and 1999, or part thereof, and his diary for the year 2000 together with some other documents. He said that he did not have cheque butts available at the time of the Tribunal hearing. He had sent his 1999 diary which recorded certain payments to the investigating officer at Centrelink who later advised that it had not been received. The cheque butts, I infer, might show that he made large payments out of his bank account and that this tends to support his explanation that he did not earn much for his limited role as a supervisor. 10 Mr Matejic contended that the Tribunal had no basis for disbelieving that he had received $42,000 in Gold Lotto winnings. He also complained that he had not had an opportunity of questioning Dr Yang and that the doctor had not responded to Mr Matejic's request that he examine him. He conceded that he had the doctor's report by the time of the hearing before the Social Security Appeals Tribunal and that he had not sought to obtain any other medical evidence to show that he was not capable of the level of work to which Dr Yang had referred. 11 The circumstances pointed to by Mr Matejic do not disclose any denial of procedural fairness. The additional complaints made by him, that he was not provided with a copy of the video put before the Tribunal or a copy of the transcript of the Tribunal, do not take the matter further. So far as concerns these proceedings there was no difficulty identified in the Tribunal hearing and it was not suggested that there was anything wrong with the video evidence. It was submitted by Mr Matejic that the video evidence showed he was doing work only with difficulty. That is to say he disputes, to an extent, the Tribunal's findings of fact. 12 Mr Matejic's principal submissions, about the amount he earned on a weekly basis, proceed upon a misunderstanding of the process undertaken by the Tribunal. The question which it was addressing was whether Mr Matejic was in fact impaired in relation to his ability to work to the extent that he was qualified for an pension under the Social Security Act. The medical opinion, which the Tribunal was entitled to accept, was that he was not so impaired. It was based upon observations made by the doctor of Mr Matejic carrying out work as a builder. The video evidence also assisted the Tribunal in coming to its view. The evidence about monies paid to Mr Matejic tended to confirm his ability to work and they established a period in which he could be taken not to have been impaired. In that regard the Tribunal noted that the period when Mr Matejic was not qualified for a pension could have been longer. The Tribunal was not, in these considerations, concerned with whether he had received more income than he was entitled to earn whilst in receipt of the pension. Once it had found that he was not qualified it was able to determine that the monies which had been paid by way of pension ought to be recovered as a debt, subject to the discretion given by s 1237 of the Social Security Act. 13 In connexion with that discretion the Tribunal found that there was no basis shown for its exercise. Mr and Mrs Matejic had not reported his income received over the period in question, as they were obliged to do. The Tribunal did not have to be satisfied that the amounts received, reduced to a weekly basis, exceeded $75. If Mr Matejic's belief about the amount he earned was put forward as an explanation for his failure to report, the Tribunal could have taken it into account in that regard. The Tribunal noted his contention that he had never made more than $75 per week. It may be inferred that the Tribunal did not accept the contention. There was no apparent evidentiary basis given for it by Mr Matejic, whose credibility in any event was likely to have been affected by the video evidence and the findings made by the Tribunal about his ability to work. In any event there is no error of law disclosed in this regard. 14 There is no substance to the application. It must be dismissed, with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel. Associate: Dated: 6 February 2003 The Applicant: In Person Counsel for the Respondent: Mr D C Rangiah Solicitor for the Respondent: Sparke Helmore Date of Hearing: 20 November 2002 Date of Judgment: 6 February 2003