Harris v Director-General of Social Security [1985] HCA 1

High Court of Australia Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ Harris v Director-General of Social Security [1985] HCA 1

ORDER Appeal allowed. Set aside the order of the Full Court of the Federal Court of Australia and in lieu thereof order that the decision of the Administrative Appeals Tribunal, dated 28 August 1981, be set aside and the matter be remitted to the Administrative Appeals Tribunal to proceed in accordance with the reasons for judgment of the majority of this Court. No order as to costs. Gibbs CJ, Brennan, Deane and Dawson JJ

Mrs Harris, the appellant, was paid an age pension under the Social Services Act 1947 Cth (the Act) on and from 29 April 1976. On 9 September 1977 she obtained casual employment as a nursing aide. In most fortnights between that date and 2 September 1979 she received some pay, the amounts of which varied from fortnight to fortnight. Her lowest pay was $35.65, her highest $231.16. She also received some amounts of income by way of interest on bank deposits and other investments. She did not notify a Director of Social Services of her earnings. An entitlement review form containing questions about her income was sent to her on 19 July 1979. She answered those questions candidly. Thus it was discovered that she had been paid her pension at a rate higher than the rate that was appropriate having regard to the income-test provisions of s 28(2) of the Act to which reference will presently be made. In purported exercise of the power conferred by s 140(2), it was decided to deduct $10 each fortnight from Mrs Harris' pension until $1,177.90 should be recouped. That was the amount assessed as overpaid age pension during the period from pension payday 13 October 1977 to pension payday 30 August 1979.

Mrs Harris invoked the jurisdiction of the Administrative Appeals Tribunal to review that decision. Two issues arose: the calculation of the overpayment and the method by which it should be recouped. The second issue has not been argued here. The Tribunal declined to vary the decision to deduct $10 each fortnight from Mrs Harris' pension but, by majority, it set aside the decision and remitted the matter for reconsideration, directing that the amount to be deducted be calculated in accordance with the principles expressed in the reasons for decision of the majority. The dissenting member, Mr W. B. Tickle, held that $1,177.90 did not exceed the correct assessment and he would have affirmed the decision. The Director-General of Social Security appealed to the Federal Court of Australia. The Full Court of that Court set aside the decision of the Administrative Appeals Tribunal and ordered that the matter be remitted to the Director-General to enable him to calculate, in accordance with the reasons for judgment of the majority of that Court (Fox and Northrop JJ.) the amounts paid by way of age pension to Mrs Harris "which should not have been paid to her by reason of her failing to give appropriate notifications under s 45(1)" of the Act. This appeal is brought by special leave from that judgment.