Stojanovic v Secretary, Department of Employment and Workplace Relations [2007] FCA 1086

FEDERAL COURT OF AUSTRALIA

Stojanovic v Secretary, Department of Employment and Workplace Relations [2007] FCA 1086

Administrative Appeals Tribunal Act 1975 (Cth), s 44 BORIS STOJANOVIC v SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS NSD624 OF 2007

EMMETT J

6 JULY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD624 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: BORIS STOJANOVIC

Applicant

AND: SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

JUDGE: EMMETT J

DATE OF ORDER: 6 JULY 2007

WHERE MADE: SYDNEY

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

NEW SOUTH WALES DISTRICT REGISTRY NSD624 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: BORIS STOJANOVIC

Applicant

AND: SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

JUDGE: EMMETT J

DATE: 6 JULY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 I have before me a notice of motion for summary dismissal of a proceeding commenced by notice of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). Under s 44 of that Act a party may appeal to this Court on a question of law from a decision of the Administrative Appeals Tribunal (the Tribunal). 2 In the original notice of appeal filed on 12 April 2007 it was difficult to discern any question of law. In that part of the form of notice of appeal requiring the statement of the questions of law raised on the appeal there was a discursive criticism of the decision of the Tribunal. When the matter first came before me for directions, it was pointed out to the applicant that the notice of appeal did not identify any question of law. The applicant was given leave to file an amended notice of appeal, which was then filed on 19 June 2007. The respondent, the Secretary of the Department of Employment and Workplace Relations (the Secretary), says that the amended notice of appeal also discloses no cause of action in that it does not identify a question of law that would be raised by the appeal. 3 The applicant applied for a disability support pension under the Social Security Act 1991 (Cth) (the Social Security Act). The basis of his claim is chronic back pain causing functional spinal impairment. In its reasons, the Tribunal identified the fundamental issue before it as whether the applicant has a functional impairment that is eligible for a "point rating" under the "Tables for the assessment of work-related impairment for disability support pension", (the Impairment Tables) in Schedule 1B to the Social Security Act. The Tribunal said that functional impairment point rating of at least twenty points is one of the threshold qualification requirements for receipt of a disability support pension under s 94(1)(b) of that Act. The Social Security Appeals Tribunal, the decision of which was being reviewed by the Tribunal, determined that no point score rating was available because the applicant's condition had not been fully treated and was not stable. That conclusion was effectively confirmed by the Tribunal, which concluded that the applicant's diagnosed lumbar condition had not been fully treated and is not fully stabilised. 4 The Impairment Tables are prefaced with an Introduction which governs the way the Impairment Tables are to be applied (the Introduction). The thrust of the applicant's complaint, so as far as I have been able to discern it, is that the Administrative Appeals Tribunal ignored some parts of the Introduction. The grounds stated in the amended notice of appeal are as follows: (1) refusal by Administrative Appeal Tribunal to recognise instructing guidelines indicated in Department of Social Security Tables for the Assessment of Work-Related Impairment; (2) deliberate false interpretation and false expression of contending specific facts by AAT when determining appeal; and (3) rejection by AAT of disclosed medical advice from the applicant's nominated medical practitioners. In the amended notice of appeal no attempt is made to formulate a question of law. In the original notice of appeal, the essence of the complaint was as follows: The appeal decision of the AAT stated I did not complete sufficient physiotherapy treatment to meet criteria of eligibility for disability support pension... This decision conflicted with the diagnosis of my supervising GP who clearly attested I have had sufficient physiotherapy and no longer require further.