Croker and Department of Employment and Workplace Relations

[2006] AATA 536

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 536

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2006/555

GENERAL ADMINISTRATIVE DIVISION		)
Re		CLAYTON CROKER

Applicant

And DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms Geri Ettinger, Senior Member

Date13 June 2006

PlaceSydney

Decision The application to stay the decision of the Social Security Appeals Tribunal dated 28 April 2006 is not granted.

..............................................

Ms Geri Ettinger

Senior Member

CATCHWORDS

SOCIAL SECURITY – interlocutory application – stay application – whether desirable to grant stay – applicant does not suffer hardship – prospects of success – stay refused.

Re Commonwealth Banking Corporation and Iannello (1988) 15 ALD 418

REASONS FOR DECISION

13 June 2006  Ms Geri Ettinger, Senior Member

1.      The matter of stay has been argued in this Tribunal in many matters, and there is quite a lot of case law on which we rely, and certain principles (Re Commonwealth Banking Corporation and Iannello (1988) 15 ALD 418). This is an application by Mr Clayton Croker for a stay of the decision of the Social Security Appeals Tribunal which found against you Mr Croker, as far as disability support pension goes in that you did not fulfil the requirements of the threshold impairment points.

2.      The principles behind a stay are first of all that it allows for a balancing of factors and a determination whether, after weighing all the factors, it is desirable to grant that stay. It is a matter of discretion for the decision-maker, and I am that person today.

3.      So there's no automatic right to a stay, and a decision appealed from is considered prima facie to be correct.  The Tribunal should not deprive a party of the fruits of that decision.  In this case the respondent has that decision, that is, that you are not entitled to DSP.  Of course you have a right to appeal and you've done that and there will be a substantive hearing of your matter. 

4.      In taking into account whether I should grant the stay, I look at the hardship to either party.  I presume you are on some social security payments Mr Croker, and from the evidence you've presented, I find that you suffer no particular hardship that any other person who is on social security doesn't suffer.  That means obviously you don't have a lavish lifestyle, but you are being paid social security payments while you are not on disability support pension.  You've mentioned your rent commitments, and obviously that's not an easy amount to meet.

5.      As to the likelihood of recovery of Commonwealth moneys; Mr Bullock has correctly pointed out that if you are not successful in the Tribunal, there may be a debt raised, and you will have to repay that debt, and that would create extreme hardship because on social security, which is quite a low figure anyway, to repay a debt is very difficult.  I'm not clear about the amount of the repayment, but it is somewhere between $55 which Mr Bullock worked out, and $150 which you worked out, both of which are pretty onerous amounts per week.

6.      The prospects of the success of the application, which is what most of your submissions have been about - and thank you both for making written submissions, they're very helpful - I believe you have some prospect of success Mr Croker, certainly it's not an application that I would consider without.  However, the discretion is mine and in looking at the all the situation in full, I don't believe this stay should be granted.  This matter will go to hearing before too long, and you will have a substantive hearing, and you will have the opportunity to put your case in full.

DECISION

7.      The stay is not granted.

I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed:   Associate

Date/s of Hearing  13 June 2006
Date of Decision  13 June 2006
Representative for the Applicant    Self
Advocate for the Respondent        Ken Bullock