Annas, A. v. Director-General of Social Security [1985] FCA 177

This is an appeal from a decision of the Administrative Appeals Tribunal, constituted by Sir William Prentice. The Tribunal affirmed a decision of the Social Securitv Appeais Tribunal, which had dismissed an appeal from the rejection of the

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The claim was based on s.23 of the Social Security Act 1947:

"23. For the purposes of this Division, a person shall

be deemed to be permanently incapacitated for work if

the degree of his permanent incapacity for work is not

The original application for an invalid pension was made on 21 or 22 July 1980. The application for review of the

decision was made in July 1982, and the case has pursued its

The applicant was born in Greece and came to Australia

About 10 years ago he ceased work due to physical problems and also perhaps toa measure of depression. In the period from 1947 to about 1975 he worked mostly in cafes and in relation to the preparation and sale of food. For a while he and

his brother owned a restaurant but this closed down due in part to loss of business because the route of a passing road was changed, and in part to a dispute with the lessor of the premises. It is not necessary to detail the physical complaints made by the applicant; at an early stage they related principally to nerves and a peptic ulcer, now they are mainly of an

On this appeal, as is accepted, the Court can only deal

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with any error of law made by the Tribunal. It is not for the Court to form its own view of the facts. This role was solely

that of the Tribunal. The situation is, however, that the particular grounds argued raise questions of fact only, although

a courageous attempt has been made to make some of them sound

The first matter raised is that the Tribunal considered

and took into account the ability of the appellant to obtain finance and assistance to enable him to carry on his own cafe or

food bar. It is not said that this is always a wholly irrelevant

matter; rather that it was irrelevant in the present case or at least was given undue weight. It was submitted that "work"

It seems to me that the Tribunal was entitled to consider whether the appellant could establish his own business and become self-employed. The matter arose because of suagestions made by one or two of the doctors that he could work satisfactorily on a self-empioyed basis, but may not be able to do so if under the control of an employer. This suggestion 1s,

of course, of a highly speculative nature and obviously would

depend very much upon the nature of any employment and

arrangements made with the employer. The Tribunal did take the

view on the evidence that the appellant could probably establish

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his own business and be his own employer, but the decision did not rest on that consideration. It was a factual consideration,

historically correct, which fell into place with others.

It was said in this connection that there is nothing in the evidence to show that the appellant had managerial capacity but this was, at the most, an incident of the facts and the Tribunal was free to reach its own decision from direct evidence or from inference. It obviously took the view that there was some prospect of the appellant being able to manage a business himself. It may well have been of course that any business he could establish would be very small and that he would be the only person employed. Many such situations require little or no

It is not necessary for me to examine with particular closeness the lanquage of s.23, or provide a paraphrase for it. In Re Panke and Director-General of Social Services, (1981) 4 A.L.D. 179, Davies J., as President of the Tribunal, regarded as applicable the well-known passage in the judgment of Lord Loreburn L.C. in Ball v. Wm. Hunt & Sons Ltd. (1912) A.C. 496, 499-500:

"In the ordinary and popular meaning which we are to attach to the language of this statute I think there is incapacity for work when aman has a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity for work when such a defect makes his labour saleable for less than it would otherwise fetch."

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He also referred in that case to a passage in the judgment of Ellicott J. in Bowman v. The Repatriation Commission 12 May 1981. In Panke, the other two members of the Tribunal (Messrs. Hall and Glick) expressed the position thus in relation to the phrase "permanently incapacitated for work" in s.24 (p.192):

"There cannot, in our view, be any doubt that in its ordinary meaning, the expression 'permanently incapacitated for work' in s.24 of the Act connotes that a person is mentally or physically incapacitated from ever earning by work any part of his livelihood [See

Wicks v Union Steamship Co of New Zealand (1933) 50 CLR

328 at 338; cf Aitkin v Goodyear Tyre & Rubber Co (Australia) Ltd (1946) 46 SR (NSW) 20 at 22 per Jordan

CJI. Whilst proof of economic loss as a consequence of such incapacity is not a condition precedent to the grant of an invalid pension) as it is with sickness benefit -see para 41 above), the concept of permanent incapacity for work in s. 24 of the Act necessarily, in our view, involves the notion of the loss of the capacity to earn a wage."

It is submitted that due regard was not paid to the fact that the appellant couid not or might not be able to attract employment. Put another way, it was submitted that the appellant's ability to obtain employment was central to the case and was not duly considered. I agree that this was an important matter, so far as non-employment was attributable to incapacity,

but it does not seem to me that 1t was neglected by the Tribunal.

The submission 1s related in a degree to that already referred to concerning the appellant's ability to establish his own business and become self-employed, but as I have said, that

was not the only thing considered by the Tribunal and it seems to

be evident that due consideration was given to the qeneral.

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question of the applicant's ability to obtain work.

It was argued on behalf of the appellant that the Tribunal rejected the psychiatric evidence which had dealt with the question of depression and related matters and that it was not entitled to do this. As I read the decision, there was not any total rejection of psychiatric evidence, but it was considered with the other evidence and in the ultimate. so far as appears from what was said, I believe it was not given great

As I have said, it is not my role to attempt to reach any conclusion on the merits of the case. In what has been put, IT am unable to discern any material question of law as to which

I certify that this and the preceding pages are a true copy of the

| ; Reasons for Judgment herein of his Honour Mr, Justice