Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606

FEDERAL COURT OF AUSTRALIA

Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606 ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal deciding the respondent qualified for Disability Support Pension – concession that the appeal must be allowed as Tribunal failed to address s 94(2)(b) Social Security Act 1991 (Cth) – ambiguity in Tribunal's reasons

Administrative Appeals Tribunal Act 1975 (Cth) s 44 Social Security Act 1991 (Cth) ss 39(1), 94, Sched 1B SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS v ROD PARRY No WAD 26 of 2007

FINN J

26 OCTOBER 2007

ADELAIDE (via video link to perth) IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 26 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DR P A STAER (MEMBER)

BETWEEN: SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Appellant

AND: ROD PARRY

Respondent

JUDGE: FINN J

DATE OF ORDER: 21 SEPTEMBER 2007

WHERE MADE: ADELAIDE (via video link to perth)

THE COURT ORDERS THAT:

1. The application be allowed. 2. The decision of the Administrative Appeals Tribunal of 18 December 2006 be set aside. 3. Remit the matter to the Tribunal for redetermination according to law. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 26 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DR P A STAER (MEMBER)

BETWEEN: SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Appellant

AND: ROD PARRY

Respondent

JUDGE: FINN J

DATE: 26 October 2007

PLACE: ADELAIDE (VIA VIDEO LINK TO PERTH)

REASONS FOR JUDGMENT 1 It has been conceded by the respondent, Rod Parry, that this appeal by the Secretary, Department of Employment and Workplace Relations under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) against a decision of the Tribunal which determined that Mr Parry qualified for Disability Support Pension from 15 June 2005 onwards under s 94 of the Social Security Act 1991 (Cth) must be allowed. I have in consequence made orders allowing the appeal setting aside the Tribunal's decision and remitting the matter to the Tribunal to be re-heard and determined according to law. I indicated at the time that I would publish my reasons at a later date. These are those reasons. 2 In essence, the appeal turns on a very narrow question. It is whether the Tribunal, on a fair construction of its brief reasons, in fact found that Mr Parry had the "condition" described as "shortness of breath" or whether shortness of breath was merely an "impairment" which was caused by another condition, i.e. "diabetes mellitus". The appeal has proceeded upon the assumption that Mr Parry suffers at least from two conditions, diabetes mellitus and chronic liver failure. 3 It is the Secretary's contention that the Tribunal found as well a third condition described as "shortness of breath" and it is in respect of this alleged finding that the questions of law founding the appeal are said to arise. While three of the four questions of law said to arise build upon this finding, it will only be necessary for me to consider whether, on a proper construction of the Tribunal's reasons, this alleged finding was in fact made.