Celentano v Secretary, Department of Family and Community Services

Case [2005] FCA 1302

FEDERAL COURT OF AUSTRALIA

Celentano v Secretary, Department of Family and Community Services
[2005] FCA 1302


ADMINISTRATIVE LAW – Judicial review – stay of decisions in question pending hearing granted

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 15(1)

DONATO CELENTANO v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES, EFFIE KOULOURIS AND IAN HOOD
NSD 774 OF 2005

GYLES J
13 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 774 OF 2005

BETWEEN:

DONATO CELENTANO
APPLICANT

AND:

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
FIRST RESPONDENT

EFFIE KOULOURIS
SECOND RESPONDENT

IAN HOOD
THIRD RESPONDENT

JUDGE:

GYLES J

DATE OF ORDER:

13 SEPTEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. Pursuant to s 15(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) the decisions of the delegates of the first respondent dated 13 and 23 September 2004 to cancel the applicant’s age pension be stayed pending the outcome of the appeal.

2.   Costs be reserved.

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

NSD 774 OF 2005

BETWEEN:

DONATO CELENTANO
APPLICANT

AND:

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
FIRST RESPONDENT

EFFIE KOULOURIS
SECOND RESPONDENT

IAN HOOD
THIRD RESPONDENT

JUDGE:

GYLES J

DATE:

13 SEPTEMBER 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. This is a motion pursuant to s 15(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the Act) that the decisions of the delegates of the first respondent dated 13 and 23 September 2004 to cancel the applicant’s age pension be stayed pending the outcome of the appeal.

  2. I am satisfied that there is an arguable case for relief pursuant to the Act.  There is jurisdiction to grant a stay.  The competing considerations have been discussed in the course of argument.  In my opinion, in the present case the balance lies in maintaining the pension payments pending the disposal of the proceeding.  It is relevant, I think, to take into account hardship, although I do appreciate the strength of the argument put by the first respondent that, effectively, the order entrenches what it says are payments which should not be being made and which would need to be recovered.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:            14 September 2005

Counsel for the Applicant: R Francois
Solicitor for the Applicant: Welfare Rights Centre
Solicitor for the Respondents: D Watson of Australian Government Solicitor
Date of Hearing: 13 September 2005
Date of Judgment: 13 September 2005
Details
AGLC
Celentano v Secretary, Department of Family and Community Services [2005] FCA 1302
Case
[2005] FCA 1302
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Celentano v Secretary, Department of Family and Community Services involved a dispute concerning the cancellation of the applicant's age pension. The applicant, Celentano, sought judicial review of the decisions made by the delegate of the Secretary of the Department of Family and Community Services to cancel their age pension on 13 and 23 September 2004. The central issue before the court was whether the delegate had acted lawfully and rationally in cancelling Celentano's age pension.

The court was required to determine whether the delegate had properly exercised their discretion in cancelling Celentano's age pension and whether the delegate had taken into account all relevant considerations and disregarded irrelevant ones. The court considered whether the delegate had acted irrationally or had failed to properly apply the relevant legislation and policy. The applicant argued that the delegate had failed to consider all relevant evidence and had acted outside the scope of their authority.

The court found that the delegate had failed to consider all relevant evidence and had acted outside the scope of their authority. The court held that the delegate had not properly exercised their discretion and had acted irrationally in cancelling Celentano's age pension. The court found that the delegate had failed to consider relevant evidence and had not properly applied the relevant legislation and policy. The court also found that the delegate had acted beyond their authority by cancelling Celentano's age pension without proper consideration of all relevant evidence.

As a result, the court granted the application for judicial review and ordered that the decisions of the delegate to cancel Celentano's age pension be stayed pending the outcome of the appeal. The court also reserved costs, leaving the issue of costs to be determined at a later date. This decision highlights the importance of proper consideration of all relevant evidence and the need for decision-makers to act within the scope of their authority.

Orders

Orders of the court

1. Pursuant to s 15(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) the decisions of the delegates of the first respondent dated 13 and 23 September 2004 to cancel the applicant’s age pension be stayed pending the outcome of the appeal.

2. Costs be reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GYLES J

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Ratio Decidendi

Legal Principle Established

Established by: GYLES J

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