Gaynor; Secretary, Department of Social Services and (Social services second review)
[2021] AATA 2379
•19 July 2021
Gaynor; Secretary, Department of Social Services and (Social services second review) [2021] AATA 2379 (19 July 2021)
Division:GENERAL DIVISION
File Number(s): 2021/3942
Re:Secretary, Department of Social Services
APPLICANT
AndGeoffrey Gaynor
RESPONDENT
DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:19 July 2021
Place:Sydney
The correct or preferable decision is to refuse the Secretary’s application for a Stay of the decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 7 May 2021.
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The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – Stay application – Whether the Tribunal should exercise its discretion to grant a stay – Factors in favour of granting a stay – Prospect of overpayment – Factors against granting a stay – Public Interest – Merits of the Applicant’s Claim – Interests of the parties – Stay refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 44
CASES
Re Repatriation Commission and Delkou (1985) 8 ALD 454
Re Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2010] FCA 880
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
19 July 2021
BACKGROUND
This decision concerns an application by the Secretary for an order under section 41(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) for the Tribunal to stay the operative decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1).
The relevant decision of the AAT1 was made on 7 May 2021. In that decision, the AAT1 decided that the Respondent is not a member of a couple with Mrs Jennifer Gaynor and, subject to meeting the relevant criteria, is to be paid age pension at the single rate.
On 15 June 2021, the Secretary lodged an application for review of the decision of the AAT1. On the same date, the Secretary filed an application for a Stay order in relation to the decision of the AAT1 dated 7 May 2021. That application is the subject of this decision.
LEGAL PRINCIPLES
The starting point in relation to the operation and implementation of a decision that is subject to review is s 41(1) of the AAT Act which provides as follows:
Subject to this section, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision
Subsection 41(2) of the AAT Act then gives the Tribunal the discretionary power to depart from the above by making an order to stay a decision or otherwise impact the operation or implementation of the decision. Subsection 41(2) provides as follows:
The Tribunal may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
ISSUES
The issue before the Tribunal is whether it should exercise its discretionary power pursuant to s 41(2) of the AAT Act to make an order to stay the decision of the AAT1 dated 7 May 2021.
DISCUSSION
The provisions of ss 41(1) and 41(2) of the AAT Act have been extensively considered both by the Tribunal itself and by the Federal Court. It is not necessary to canvas those decisions in any detail as there are certain clear principles which are well settled. In particular, each case turns on its own merits and a Stay should not be granted lightly given the general principle that a successful litigant should be able to rely on the judgement in a case that has been concluded.
Both principles can be seen in the judgement of the Federal Court of Australia in Re Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2010] FCA 880. In that case the court considered the operation of s 44A(2) of the AAT Act in the context of an application to stay an AAT decision that was subject to appeal to the Federal Court. At paragraph 20, the Court stated as follows:
The discretion conferred by s 44A(2) of the AAT Act should be exercised only where special circumstances justify departure from the rule that a successful litigant is entitled to the fruits of judgment pending the appeal, because the appeal, although successful, may otherwise be rendered nugatory. See Broadbent v Civil Aviation Safety Authority [1999] FCA 1871 at [5]–[6]; Hartnett v Migration Agents Registration Authority [2003] FCA 998 at [4]; Theo v Secretary, Department of Family Services [2004] FCA 1748 at [5]
The relevant principles were further outlined by Deputy President Hall in Re Repatriation Commission and Delkou (1985) 8 ALD 454, who determined that, in considering whether an order for a stay of proceedings is to be granted, the Tribunal should consider the following factors:
(a)Interests of the parties, including financial hardship if the Stay is not granted;
(b)Prospects of an overpayment should the Tribunal affirm the decision under review;
(c)The merits of the Applicant’s claim; and
(d)Whether the Stay is desirable.
The circumstances of the current case are of a kind not unfamiliar in a family law context when considering whether or not a de facto relationship exists. All of the caselaw clearly demonstrates the need for a careful consideration of all of the facts and circumstances of each individual case, particularly in light of the very diverse ways in which individuals choose to live their lives in a free society.
In the current application before this Tribunal, it is quite clear that the AAT1 heard a great deal of evidence in relation to the particular circumstances of Mr Gaynor at that time and weighed each of the relevant factors carefully in coming to its conclusion. These included finances, social interaction, mutual care and assistance, and intimacy between the parties.
It is not uncommon for people to live together for the purposes of convenience and perhaps even some mutual support, without being a couple.
In the interlocutory hearing, there was no evidence that would suggest that the Tribunal‘s original decision was incorrect or that on balance there was any strong prospect of success on the part of the Secretary in an appeal. On the face of it, AAT1 had done its job thoroughly and had carefully considered all of the evidence before it, including Mr Gaynor’s sexuality, before coming to its conclusion.
Mr Gaynor is likely to suffer financial hardship if the Stay is granted. He gave evidence that he would be without income and placed in a very difficult situation as regards day to day living. I accept his evidence in this regard.
I am also mindful of the fact that if the Secretary is successful on appeal, Mr Gaynor may have to repay monies received including backpay, and that this may disadvantage both Mr Gaynor and the Secretary, who would need to recover an overpayment of public money with attendant difficulty and cost. At the hearing, Mr Gaynor suggested that he would be happy not to receive any back payment of monies owed to him as a result of the decision of AAT1, pending the result of any appeal. The Secretary’s representative also somewhat reluctantly accepted such an outcome.
I have considered this issue carefully, with a view to granting a partial stay, however on balance, I do not consider that a partial stay is warranted or desirable.
DECISION
The correct or preferable decision is to refuse the Secretary’s application for a Stay of the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 7 May 2021.
I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President
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Associate
Dated: 19 July 2021
Date of hearing: 9 July 2021 Date final submissions received: 9 July 2021 Applicant: B. Erak, Services Australia (by telephone) Respondent: By telephone
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