Iredale; Secretary, Department of Employment and Workplace Relations

[2005] AATA 412

Administrative

Appeals

Tribunal

 

WRITTEN REASONS FOR ORAL ORDER [2005] AATA 412

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/354

GENERAL ADMINISTRATION  DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And JOHN IREDALE

Respondent

Tribunal   Senior Member, Mrs Josephine Kelly

Date of Decision       20 April 2005

Date of Written Reasons for Order     6 May 2005

Place  Sydney

OrderPursuant to s 41(2) of the Administrative Appeals Act 1975, the SSAT decision of 16/02/05 is stayed in respect of the repayment of the amount of $885.40 which Centrelink has already recovered from Mr Iredale.

[sgd] Senior Member, Mrs Josephine Kelly

CATCHWORDS

SOCIAL SECURITY – hearing for a stay – effectiveness of substantive hearing – stay for a small proportion of the debt - stay granted

LEGISLATION

Administrative Appeals Tribunal Act 1975 s 41(2)
Social Security Act 1991 s 1237A(1)

CASELAW

Crossan v Minister for Immigration and Multicultural and Indigenous Affairs (2002) AATA 216
Holas v Child Support Registrar and Another (2002) AATA 480
Madafferi v The Minister for Immigration and Multicultural Affairs [2001] FCA 320.

WRITTEN REASONS

1. At the conclusion of the hearing of this matter, the terms of the order made and the reasons for that order were stated orally. The Respondent requested the Tribunal to furnish a statement in writing of the reasons of the Tribunal for its order pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975.

2.      Those oral reasons for the order have been transcribed by Auscript, the Commonwealth Reporting Service and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and furnished to the Applicant and to the Respondent.

I certify that this and the preceding pages are a true copy of the decision and reasons for decision herein of:

Senior Member Josephine Kelly

Signed:         Miss Sacha Keady
          ..................................................................................……………………………….

Associate

Date of Hearing  19 April 2005

Date of Decision  20 April 2005

Applicant Representative           Self Represented

Advocate for Respondent           Ms Jane Green

WRITTEN REASONS FOR ORAL ORDER

Senior Member, Mrs Josephine Kelly     

1.      In the matter of the Secretary of the Department of Employment and Workplace Relations and John Iredale, proceedings number N2005/354, the following is my reasons for decision in relation to the application by the Secretary of the Department of Employment and Workplace Relations (“the Secretary”), who requests a partial stay of the Social Security Appeals Tribunal (“SSAT”)decision of 16 February 2005 in which Mr Iredale, the respondent, was successful.

2. The SSAT decided that recovery of Mr Iredale's Newstart Allowance debt of $19,024.83 for the period 18 July 2001 to 22 June 2004 should be waived due to administrative error. Section 41(2) of the Administrative Appeals Tribunal Act 1975 provides relevantly that if I am 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, I may make such order or orders staying or otherwise affecting the operation or implementation of a decision to which the relevant proceeding relates or a part of that decision as the Tribunal or the presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

3.      The partial stay requested by the Secretary is to permit Centrelink to retain the amount of the debt already recovered, that is, $885.40.  Centrelink ceased recovery of the debt from 18 March 2005. It is not clear whether that was because it implemented the SSAT decision at that time or because Mr Iredale had cancelled his receipt of Newstart Allowance which he said he did at the end of March as he had started a new business.  That the stay sought was limited to the sum of $885.40 was disclosed by the Secretary for the first time at the commencement of the hearing.

4.      Ms Green appearing for the Secretary did not know that Mr Iredale had cancelled his benefit until he said so during the hearing.  Ms Green stepped back from some aspects of the written material that the Secretary had provided to the Tribunal in support of the application.  Quite properly ground (b) in the grounds for request in form 6 filed with the Tribunal was not relied upon. It was that implementation of a decision may render review by this Tribunal nugatory. Given that the waived debt was $19,024.83 and the amount the subject of the stay was only $885.40, that submission could not be supported.

5. The two remaining grounds set out in form 6 were relied on. They were (a) that the substantive application had real prospects of succeeding, and (b), if the stay was not granted and the Secretary was successful it may be difficult or impossible to recover the moneys, and also that recovery may impose greater hardship on Mr Iredale. Ms Green had also provided written submissions to the Tribunal which were repeated at the hearing. The submission that the application before the Tribunal has real prospects of succeeding was based on the argument that the SSAT erred in law in coming to the decision it did because the debt did not arise solely as a result of administrative error on the part of Centrelink as required by section 1237A(1) of the Social Security Act 1991. The provision provides:

Subject to subsection 1A the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment of payments that gave rise to that proportion of the debt.

6.      The argument will be that Mr Iredale contributed to the error which was the payment of the wrong rate of Newstart Allowance because he failed to tell Centrelink that his total fortnightly income was greater than that shown on the nine Centrelink letters sent to him during the debt period despite those letters advising him that there was an obligation to notify Centrelink of changes in income.  I accept that the Secretary has an arguable case. 

7.      That does not mean that I am making a finding in relation to the substantive application before the Tribunal.  My finding that there is an arguable case goes only to the matter before me which is the Secretary's application for a stay pending the outcome of the substantive application. I emphasise that because Mr Iredale seemed to fear that a finding in this application might affect the final hearing.  That is not the case.

8.      A further submission in the written document provided to the Tribunal was that the grant of a stay may remove the need for the parties to rush preparation of their cases possibly jeopardising the strength and content of their arguments.  Again, quite properly, this was not pressed at the hearing.  Rather Ms Green stated that she would seek an early hearing at the telephone conference which is to take place on 24 May 2005.  The substantive application is not complex and it seems likely that the evidence that will be adduced will be essentially that that was put to the SSAT.  There seems no reason why the hearing of the substantive matter should be delayed or that the granting of a stay or not granting the stay will affect when the matter is to be set down for hearing.  This is not a matter to which I give any weight. 

9.      The Secretary also made a submission in relation to Mr Iredale's financial circumstances relating to a possible difficulty in recovering the moneys and also that recovering the money imposed greater hardship on Mr Iredale. Mr Iredale did not wish to and did not provide information about his financial circumstances.  He said that he had cancelled his Newstart Allowance in March this year and that he had commenced his own business. He gave no further information about income, assets or liabilities.  He also did not argue that he would suffer hardship if he were not paid the $885.40 that had been recovered. To the contrary he said if the stay was not granted he would pay it into an account from which it would be repaid if he were unsuccessful.

10.     In that circumstance I do not consider that Mr Iredale will suffer hardship if the stay were granted.  Mr Iredale's argument was essentially that the SSAT had found in his favour and provided cogent reasons for that decision.  He had a strong case and should not be deprived of moneys to which he was entitled as a consequence of the SSAT’s decision. In his view that would be grossly unfair.  He also stated that he had legal advice to the effect that he may have some difficulty to recover the money he was owed by Centrelink if he were successful.  Ms Green hastened to assure Mr Iredale that was not the case and I agree that Mr Iredale's misgivings are not well- founded.

11.     The question is therefore should I order a stay in relation to the sum of $885.40?  The relevant principles have been considered in cases such as Crossan v Minister for Immigration and Multicultural and Indigenous Affairs (2002) AATA 216 and Holas v Child Support Registrar and Another (2002) AATA 480 which applied Madafferi  v The Minister for Immigration and Multicultural Affairs [2001] FCA 320. A stay is "for the purpose of securing the effectiveness of the hearing and determination of the application for review". In my opinion that objective will be met by granting the stay in this case.

12.     The Secretary has an arguable case.  The debt in question is $19,024.83.  The stay is sought only in respect of $885.40 which has already been recovered.  In my view it is not unfair that Mr Iredale not be paid that amount at this time.  He has the benefit of the SSATs decision in relation to the balance of the $19,024.83 debt which has not been recovered. I have found that his fear of not being paid the $885.40 if he is successful is not well-founded. If the Secretary is successful however it will have the benefit of the amount the subject of the stay and the task of recovering the balance.

Decision

13.     In those circumstances and for the reasons given I grant the stay sought by the Secretary.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly

Signed: Miss Sacha Keady
             Associate

Date/s of Hearing  19 April 2005
Date of Decision  20 April 2005
Date of Written Reasons          6 May 2005
Advocate for Applicant             Ms Jane Green
Respondent Representative     Self-Represented