Department of Family and Community Services v Sammut

[1999] FCA 1298

FEDERAL COURT OF AUSTRALIA

Department of Family & Community Services v Sammut [1999] FCA 1298

No question of principle

SECRETARY OF THE DEPARTMENT OF FAMILY & COMMUNITY SERVICES v ANNETTE SAMMUT

N 683 OF 1999

HELY J

10 SEPTEMBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 683 OF 1999

BETWEEN:	SECRETARY OF THE DEPARTMENT OF FAMILY & COMMUNITY SERVICES Applicant
AND:	ANNETTE SAMMUT Respondent
JUDGE:	HELY J
DATE OF ORDER:	10 SEPTEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application is dismissed.

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	N 683 OF 1999

BETWEEN:	SECRETARY OF THE DEPARTMENT OF FAMILY & COMMUNITY SERVICES Applicant
AND:	ANNETTE SAMMUT Respondent

JUDGE:	HELY J
DATE:	10 SEPTEMBER 1999
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

1. This is an application by the Secretary of the Department of Family and Community Services seeking a stay of a decision of the Administrative Appeals Tribunal (“AAT”) given in this matter on 16 June 1999, pending an appeal of these proceedings which is expected to come on for hearing in November of this year.  The effect of the AAT’s decision was that a sum of about $7,000 is to be returned to Ms Sammut.  A stay of that order is sought on the grounds that Ms Sammut might use that money to pay for medical treatment, which apparently she badly needs, and if the money is used for that purpose it might be irrecoverable in the event that the Department succeeds in its appeal.

2. I am not prepared to grant the stay sought essentially for two reasons: first, I inquired of the Department's representative as to whether the Department was prepared to give an undertaking to pay interest on the relevant sum in the event that its appeal was unsuccessful. No such undertaking was forthcoming. Second, I was informed by the Department's representative, and quite properly so informed, that there is a statutory remedy under s 1231 of the Social Security Act 1991 whereby a debt due to the Department, of which this is said to be an example, can be recovered by means of deduction from social security payments.

3. Given those factors, I think that the ordinary principle that Ms Sammut is entitled to the benefit of her success before the Administrative Appeals Tribunal should apply, and that a stay should be refused.  A further factor that might be relevant is that the decision of the Administrative Appeals Tribunal might be thought to be essentially a decision on a factual issue as to whether special circumstances existed under the relevant section.  It might be difficult to construct an error of law insofar as a review of a decision of that character is sought.

4. For all of those reasons I dismiss the application for a stay of proceedings.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             10 September 1999

Solicitor for the Applicant:	Australian Government Solicitor
The respondent represented herself
Date of Hearing:	10 September 1999
Date of Judgment:	10 September 1999