Celentano v Secretary, Department of Family and Community Services

[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