Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1351

FEDERAL COURT OF AUSTRALIA

Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1351

PETER ZAMBINI v SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS SAD 149 OF 2006

BESANKO J

16 OCTOBER 2006

ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 149 OF 2006

BETWEEN: PETER ZAMBINI

Applicant

AND: SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

JUDGE: BESANKO J

DATE OF ORDER: 16 OCTOBER 2006

WHERE MADE: ADELAIDE

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

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 149 OF 2006

BETWEEN: PETER ZAMBINI

Applicant

AND: SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

JUDGE: BESANKO J

DATE: 16 OCTOBER 2006

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an appeal by Mr Zambini against a decision of the Administrative Appeals Tribunal constituted of a senior member. The appeal is brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) and is restricted to a question of law. 2 The appellant represented himself. He complained that he had been granted a sickness allowance and then a disability support pension under the Social Security Act 1991 (Cth) ('the Act') in circumstances in which the benefits were not payable. The Tribunal dismissed his application for review. The appellant's appeal to this Court must be dismissed. No question of law arises. 3 The Tribunal made clear findings of fact and the summary which follows is based on those findings. 4 In 1993 the appellant was employed as a medical orderly by the Queen Elizabeth Hospital. He was suspended from that employment without pay from 28 July 1993. On 6 August 1993 the appellant lodged a claim for sickness allowance and an accompanying medical certificate. He signed the application. The author of the medical certificate referred to a diagnosis of a psychological disorder and stated that the appellant would be unfit for work from 12 August 1993 until 12 October 1993 inclusive. 5 Sickness allowance was granted with effect from 11 August 1993. 6 The appellant's entitlement to sickness allowance was reviewed on a regular basis by the Department; appropriate medical certificates were produced on each occasion and the appellant's sickness allowance continued. By May 1994 the diagnosis had become that of a bipolar disorder. 7 It is apparent from statements made by the appellant on review forms and claim forms that he did not accept that he had a psychiatric condition and that in his opinion he was suffering from a work-related injury, being stress and trauma arising from the circumstances surrounding the cessation of his employment. 8 By the middle of 1995 the Department had determined that the appellant's condition had become permanent and that he was no longer eligible for a sickness allowance. He had been paid a sickness allowance for a period of just over two years. 9 In about September 1995 arrangements were made for the appellant to be seen by the Australian Government Health Service. In September 1995 a medical assessment stated that the appellant had an impairment of 20 per cent due to a bipolar disorder and that he would benefit from a vocational rehabilitation assessment if his condition remitted at a future date, but no prediction of remission could be made in the foreseeable future. The appellant's doctor continued to certify him unfit to work. 10 On completion of the medical assessment, the appellant discussed with Centrelink what benefit was appropriate for him because a decision had been made that his sickness allowance was to cease because his condition was considered permanent. 11 On 17 October 1995 the appellant was advised by Centrelink that he could choose between applying for a job search allowance or a disability support pension, as his sickness allowance would cease on 17 October 1995. It was explained to him how he could claim a job search allowance if he chose that option. On that date he submitted a medical certificate from his doctor which stated that apart from being able to do a few hours of part-time work he would continue to be unfit to work until at least December 1995. 12 Following the interview on 17 October 1995 the Department of Social Security sent a letter to the appellant explaining why the appellant's sickness allowance could not be extended and inviting him to apply for either a job search allowance or a disability support pension. 13 On 18 October 1995 the appellant lodged a claim for a disability support pension. His doctor supported the application in response to a request for a medical report. On the same day a disability support pension was granted to the appellant. The decision-maker decided that the appellant's bipolar disorder prevented him from continuing in his usual work as a hospital medical orderly for 30 hours per week over the following two years. The decision-maker decided that the appellant had photography skills but was unable to perform any work at 30 hours per week for the foreseeable future and that no suitable alternative work had been identified. 14 The decision-maker noted that the appellant conceded that he was under stress but refused to accept any suggested treatment and that he appeared to be unable to concentrate for lengthy periods or to cope with the stress of any mainstream training. 15 A disability support pension was granted with effect from 19 October 1995. After this date the appellant was sent a letter offering him rehabilitation if he wanted to do so but explaining that he did not have to take up that option. The appellant has never taken up the option of any rehabilitation courses. 16 There is a report dated 25 June 1998 from Dr A T Davis who is a psychiatrist. It was written at the request of the appellant and for the South Australian Superannuation Board. It related to the appellant's eligibility for payment of a benefit from the State Superannuation Benefit Scheme. The report confirms the diagnosis of mood disorder that significantly impacted on the appellant's ability to function in the workforce. 17 The appellant's employment with the hospital was terminated on 20 September 1996 and he has not worked since that date. 18 Although the appellant was successful in both his applications for benefits, he sought a review of the respective decisions to grant him a sickness allowance and a disability support pension. He did not accept that he had a medical condition which gave rise to the entitlements and submitted that the benefits should not have been granted to him. 19 An authorised review officer reviewed and affirmed both decisions on 3 November 2005. It was found that in both cases valid claims with appropriate supporting medical information were before the Department (then the Department of Social Security (Centrelink)) and that the decisions to pay the respective benefits were correct. 20 The appellant sought a review of that decision by the Social Security Appeals Tribunal, but on 15 December 2005 that Tribunal affirmed the decision of the authorised review officer. The appellant then sought a review of the decision of the Social Security Appeals Tribunal. 21 In her reasons, the senior member set out the relevant provisions of the Act dealing with the payment of a sickness allowance (ss 666(1), 699(1), 700, 701(1) and 707) and the payment of a disability support pension (s 94). 22 The senior member stated that she was required to determine first whether, based on the evidence available to the decision-maker at the time, a sickness allowance was correctly granted to the applicant on 11 August 1993. That question in turn raised questions as to whether a claim in the required form was lodged, and whether the appellant met all the other qualifications for a sickness allowance at the relevant time. She was also required to determine, secondly, whether, based on the evidence available to the decision-maker at the time, it was appropriate to grant a disability support pension to the applicant from 19 October 1995. That question in turn raised questions as to whether a claim in the required form was lodged, and whether the appellant met all the other qualifications for the payment of a disability support pension at the time the pension was granted. 23 The appellant gave evidence before the Tribunal. He acknowledged that he had submitted claims for a sickness allowance and for a disability support pension. He suggested that he was under duress at the time he lodged those claims, and that he did not have a medical condition which would justify the payment of the relevant benefits. 24 The senior member noted that the appellant's evidence and submissions were 'sometimes confusing and difficult to follow'. The senior member noted the medical certificates which had been provided and the various reports from the appellant's doctor which referred to a diagnosis of a psychological disorder and a bipolar disorder. The senior Tribunal member referred to the report from Dr Davis 1998 wherein he expressed the view that the appellant had 'a pathological impairment of insight which is likely to persist and thereby impair his judgment and capacity to seek appropriate treatment'. 25 The senior member said: 'This lack of insight was evident in the applicant's presentation at the hearing. It extended to him not really appreciating that the decision that he was seeking from the Tribunal would have significant adverse financial consequences for him and was not in his best interests. He was concerned at uncovering what he perceives to be a wider systemic problem in the administration of the Centrelink system and he considers that he has an obligation to pursue this issue even to his detriment.' 26 I have summarised the senior member's findings of fact. Those findings of fact are clear and there is no reason to think that any of them are erroneous. 27 The findings of fact led the senior member to conclude (correctly, in my respectful view) that, in the case of both types of benefit, appropriate claim forms had been lodged with supporting evidence sufficient to justify the decisions to grant the benefits. The senior member concluded: 'The evidence before the primary decision-maker on each occasion was clear and the decisions were in accordance with a request made by the applicant and based on evidence provided by the applicant. They were the correct and preferable decisions at the time.' 28 The senior member rejected any suggestion that the claims for the benefits were made under duress.